Lords Sitting of 10 May 1967

Preamble
The House met at a quarter past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Worcester.

LORD FAIRHAVEN
Henry Rogers, Lord Fairhaven, having succeeded to the title by virtue of a Special Remainder contained in Letters Patent dated the twenty-fifth day of July in the tenth year of Her Majesty's reign—Was, in his robes, introduced between the Lord De Ramsey and the Lord Ailwyn.

BARONESS BERKELEY
THE LORD CHANCELLOR (LORD GARDINER): My Lords, I have to inform your Lordships that Her Majesty has been pleased to terminate the abeyance of the Barony of Berkeley in favour of Mary Lalle Foley-Berkeley. The Barony has been in abeyance since the death in 1964 of her mother, Eva Mary Fitz-hardinge, Baroness Berkeley. A Writ of Summons has been issued in pursuance of Section 6 of the Peerage Act 1963, and the noble Lady attends at the Bar to take her seat.
After which, Baroness Berkeley took the Oath.

CHILD IMMIGRANTS AND MEDICAL SERVICES
2.33 p.m.
LORD ELTON: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether it is true that large numbers of immigrants who, being under the age of 16, are not required to obtain entry certificates, and are therefore not referred to the medical officers of health of their places of destination,
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often move into new areas of the United Kingdom without the knowledge of the relevant medical authorities, with the frequent result that they themselves remain ignorant of the medical services available to them, and also that the medical authorities are not speedily aware of notifiable complaints from which they may be suffering; and if so, whether they propose to take any action to remedy this state of affairs.]
THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR COMMONWEALTH AFFAIRS (LORD BESWICK): My Lords, entry certificates apply only to Commonwealth immigrants; their possession is not compulsory, but many, including dependants, do obtain them. The names and destination addresses of these, and of all voucher-holders, are passed to the local medical officers of health from the port of entry, but it is not practicable at present to obtain addresses from dependants who arrive without entry certificates. All those coming in for settlement are given a leaflet or card, advising them to register with a doctor.
LORD ELTON: My Lords, I am grateful for that Answer, of which I could not hear quite all. I would only ask further whether, in so far as this state of affairs exists—and I gathered that it does to some extent exist—the noble Lord will always bear in mind that it involves a double threat, both to the immigrants, who must themselves be in need of help and advice, and to the public health of the country.
LORD BESWICK: My Lords, I am not quite sure to what state of affairs the noble Lord refers, but there is in some respects a certain difficulty—indeed, I would go so far as to say an inadequacy. But I believe that we go as far as we can to meet this difficulty. As I have said, at the port of entry a card, printed in eight languages, four of them Asiatic, is given to each dependant immigrant, advising him to register with a doctor and explaining that to do this would be in his own interests. I gather that of the 31,739 immigrants who came in 1966 and whose names and addresses we had, two in three were successfully contacted, and of this total 23,027 were Commonwealth immigrants. I think that we are

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doing as much as possible under the present legislation.
LORD BROCKWAY: My Lords, would my noble friend consider sending this information also to the International Friendship Councils which are now being appointed in the various countries and also to the liaison officers, so that this gap may be filled?
LORD BESWICK: My Lords, that seems to be a very good suggestion. I should be very surprised to find that it had not already been carried out, but I will certainly look into it.

ILLEGAL IMMIGRATION
2.37 p.m.
LORD ELTON: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what success they have had in countering the efforts of the widespread network of organisations seeking by various methods, which have been reported in detail in the Press, to promote illegal immigration into this country.]
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, I think the terms of the noble Lord's Question overstate the extent of the mischief, serious as it is. In the nature of things we have no means of knowing precisely what success attends our efforts to prevent evasion of the immigration control, but I can assure your Lordships that we are doing all we can to ensure that an effective control is maintained.
LORD ELTON: My Lords, while thanking the noble Lord for that, on the whole, very satisfactory Answer, may I ask him one further question? As it has been stated (my only information comes from the Press, and it may be incorrect) that the firms supplying forged passports in India and Pakistan maintain agents in Frankfurt and other Continental centres, and that among other activities they supply those who have been refused entry with further forged passports for a second attempt, could the noble Lord say how far it is possible for our officials
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to obtain co-operation from the Continental police in dealing with this particular racket?
LORD STONHAM: My Lords, so far as forged passports are concerned, our officers detect a number of forgeries and take appropriate action. Of course, they are constantly on the lookout for this kind of thing. With regard to the noble Lord's question as to co-operation from the police on the Continent, I am afraid that I cannot give him an answer to-day, but I will certanly look into it.

GOLD AND SILVER MOVEMENTS: SECURITY ARRANGEMENTS
VISCOUNT MASSEREENE AND FERRARD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will consider introducing legislation requiring that the police be notified of the movement of gold or silver above a certain value.]
LORD STONHAM: My Lords, the responsibility for security of the movement of a valuable load rests with the firms concerned, and while the police are glad to have an opportunity to advise, Her Majesty's Government would not regard it as desirable to legislate to make it compulsory for the police to be notified about the proposed movement of particular types of load. The Home Secretary has asked the Home Office Standing Committee on Crime Prevention to study urgently the problem of improving the security of valuable loads in transit, and their recommendations will be carefully considered.
VISCOUNT MASSEREENE AND FERRARD: My Lords, I thank the noble Lord for that reply.
LORD DERWENT: My Lords, is not one of the methods by which these robberies can be reduced in the hands of the insurance companies, and are they not already making premiums very heavy for those firms who have repeated losses?
LORD STONHAM: My Lords, the enormous extent of the movement of valuables in the country may not be generally realised. It totals upwards of

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£30,000 million a year in cash and gold, including some £15 million a day between the Bank of England and the clearing banks. That is exclusive of the movement of precious stones and other valuable loads. It is estimated that the losses of cash, bullion and other valuable loads by theft in transit is put at one ten-thousandth part of 1 per cent. of the total value carried. So it would seem the insurance companies get fair value for money.
LORD DERWENT: My Lords, the noble Lord has not forgotten that it is not every insurance company which carries this type of risk.
LORD STONHAM: My Lords, it is not for Her Majesty's Government to interfere with insurance companies and tell them how to conduct their business. I would add this: again the police are always ready and willing to advise. It might well be that if in certain cases their advice had been sought the crime might have been frustrated.

TREATMENT OF MRS. KATHLEEN CATTOUSE
2.40 p.m.
LORD BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether an apology has been made to Mrs. Kathleen Cattouse, wife of the Deputy Premier of British Honduras, for her treatment by the immigration officials at Heathrow Airport on March 23.]
LORD STONHAM: No, my Lords. Mrs. Cattouse was medically examined under the normal arrangements which are, I am sure, well understood, and for which Her Majesty's Government see no need to apologise. The Home Office were given clearly to understand that Mrs. Cattouse was not content to come as a visitor, that is to say, for a fixed period of up to six months in the first instance, and she was granted an entry certificate that gave her the advantage of unconditional admission so that she could stay permanently, or for as long as she liked. This meant that she came within the category of those for whom
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medical examination is required, and the immigration officer acted correctly and in accordance with his instructions.
Medical examinations at ports are carried out by doctors, and any request to a passenger to remove clothing for a medical examination would be made only by the doctor or his assistant acting under his instructions, and not while the passenger was with an immigration officer. The Government are considering how far it would be possible to arrange for immigrants to be medically examined in their country of origin, instead of on arrival in this country.
LORD BROCKWAY: My Lords, I thank my noble friend particularly for the last sentence of his reply. Is it not the case that Miss Nadia Cattouse was given assurances at the Home Office, and that communications were sent to the immigration officials in British Honduras in order to remove any difficulties should her mother, the wife of the Deputy Prime Minister of British Honduras, come to this country? Further, is it not the case that, nevertheless, this woman of growing years, after the exhaustion of the long air journey from America, was kept in detention for an hour and a half and was asked to unclothe to the waist for medical examination? Does my noble friend think that that is a desirable procedure to follow in the case of a woman of this kind?
LORD STONHAM: My Lords, it is certainly the case that Miss Nadia Cattouse visited the Home Office and saw the Home Office officials about the demand she made in British Honduras for her mother to have a return air ticket. As my noble friend suggests, our people in the Home Office cabled at public expense and said that because Mrs. Cattouse wanted to come here indefinitely or permanently, and because she was over 60, she had every right to come, and an entry certificate was granted. She was not with the immigration officer for more than one minute or perhaps two minutes on arrival, and perhaps one minute after the medical examination.
Mrs. Cattouse had a leaflet which clearly states:
"Holders of Ministry of Labour vouchers and other Commonwealth citizens who are coming for a long time will normally be examined by the medical inspector when they arrive."

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It is, I would submit, with respect to my noble friend, an abuse of language to describe a medical examination in the excellently fitted, equipped and staffed medical unit at Heathrow as "detention". Of course I understand the feelings of Miss Nadia Cattouse. I have read her letter in The Times of Saturday last. But when she asks:
"Has a Canadian or an Australian lady, because she is white, been examined?"
my answer is categorically: Yes, thousands of them. And if we have a rule approved by this House, sought by Parliament, that there shall be medical examination because of the fear of pulmonary tuberculosis, then it would be wrong to discriminate.
LORD BROCKWAY: My Lords, will my noble friend forgive me if I press the matter just a little further, because I feel it is so important for race relations. He mentioned an Australian or a Canadian lady. Does he really think that if the wife of the Deputy Prime Minister of Australia, or the wife of the Deputy Prime Minister of Canada came to this country, she would be subjected to the same treatment that the wife of the Deputy Prime Minister of British Honduras underwent? May I urge him, because of the importance of this treatment in a sense of racial equality, to encourage the immigration officials at Heathrow and elsewhere, who have a difficult task, to show discretion and equality in these matters?
LORD STONHAM: My Lords, the immigation officers and the medical officers have instructions, and they carry them out. With regard to my noble friend's question about the wife of the Deputy Prime Minister of Australia or of Canada, if the same conditions applied—that is to say, that the lady in question was over 60 and was going to live here more or less permanently—then either of these ladies would have been subject to the same regulations, and they might well have been asked to have a medical examination.

SEA FISH (CONSERVATION) BILL [H.L.]
THE LORD CHANCELLOR: My Lords, I beg leave to introduce a Bill to consolidate (with corrections and improvements made under the Consolidation
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of Enactments (Procedure) Act 1949) certain enactments which provide for regulating the commercial use of, fishing for, and landing of, sea fish, and for authorising measures for the increase or improvement of marine resources. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a,—(The Lord Chancellor.)
On Question, Bill read 1a and to be printed.

SEA FISHERIES (SHELLFISH) BILL [H.L.]
THE LORD CHANCELLOR: My Lords, I beg leave to introduce a Bill to consolidate certain enactments relating to shellfish fisheries and shellfish, with amendments to give effect to recommendations of the Law Commission and the Scottish Law Commission. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(The Lord Chancellor.)
On Question, Bill read 1a, and to be printed.

WEST MIDLANDS (AMENDMENT) ORDER 1967
2.48 p.m.
THE PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD KENNET)THE PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD KENNET) moved that the West Midlands (Amendment) Order 1967, be approved. The noble Lord said: My Lords, by the West Midlands Order 1965, my right honourable friend the Minister of Housing of the day, among other changes, transferred part of the former Borough of Oldbury to the Borough of Halesowen. In that part there was an Essoldo Cinema. In the former Borough of Oldbury it was possible for the justices to license cinemas to open on Sundays. In the Borough of Halesowen the justices have no such power. This amending Order restores the right of the cinema to apply for a licence to open on Sundays by applying Section 1 of the Sunday Entertainments Act 1932 to the part of the former Borough of Oldbury now in the Borough of Halesowen. My Lords, I beg to move.
Moved, That the West Midlands (Amendment) Order 1967 be approved.—(Lord Kennet.)
On Question, Motion agreed to.

HOUSING SUBSIDIES BILL
Order of the Day read for the Consideration of the Commons Reason for disagreeing to one of the Lords Amendments.
LORD KENNET: My Lords, I beg to move that the Commons Reason for disagreeing to one of the Lords Amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.

COMMONS REASON FOR DISAGREEING TO ONE OF THE LORDS AMENDMENTS
[The Reference is to Bill (197) as first printed for the Lords. The Commons Reason is printed in italics.]

LORDS AMENDMENT
After Clause 13, insert the following new Clause—
Subsidies under Part I not payable in certain circumstances
(" . In respect of any year during which a local authority fails to satisfy the Minister that it grants rent relief only to those of its tenants who need it and to the extent that they need it, no subsidies shall be payable under this Part of this Act to that local authority.")
The Commons disagreed to this Amendment for the following reason:
Because it would alter the financial arrangements made by the Commons and the Commons do not offer any further Reason, trusting that this Reason will be deemed sufficient.
LORD KENNET: My Lords, the Amendment in question is your Lordships' Amendment No. 6, which the noble Lord, Lord Brooke of Cumnor, moved during Committee stage in this House. I beg to move that this House doth not insist on this Amendment to which the Commons have disagreed. The House will recall that this Amendment, which was carried against the advice of the Government, sought to restrict the payment of the subsidies under Part I of the Bill to those local authorities who satisfied the Minister that they granted rent relief only to those of their tenants who need it and to the extent that they need it. The Commons have disagreed to the Amendment on the grounds that it alters the financial arrangements made by the Commons. The Amendment clearly has
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this effect, since it restricts the circumstances in which the Minister may distribute the new subsidies and introduces a new factor into the financial arrangements governing the distribution of the subsidies.
I think there is no need for me to go again into the merits of the case, which have been fully argued on both sides and on several occasions during the passage of the Bill through both Houses. The House of Commons have rejected the Amendment on grounds which they are entitled to invoke, and I trust your Lordships will accept that conclusion. I beg to move.
Moved, That this House doth not insist on the said Amendment.—(Lord Kennet.)
LORD BROOKE OF CUMNOR: My Lords, as this is a matter of finance there is no more to be done in your Lordships' House; nor is there much more to be said, except that the Government are now self-declared wasters of public money, for they are insisting on deleting a clause which says that the taxpayers need not provide large new subsidies to such local authorities as are choosing to use existing subsidies wastefully.
On Question, Motion agreed to.

CRIMINAL JUSTICE BILL
2.52 p.m.
Order of the Day for the Second Reading read.
LORD STONHAM: My Lords, I beg to move that the Criminal Justice Bill be read a second time. In every sense of the word this is a major Bill: in another place the Notes on Clauses and Amendments alone have involved an output of about a quarter of a million sheets of typescript. But the Bill's importance derives neither from its length nor from its complexity; it derives from its proposals for radical change in the powers and procedure of the courts, from important advances in sentencing policy, and the treatment of offenders. Most important of all, it is a Bill—the first within my recollection—which places the main emphasis on the preservation and reform of the offender as a citizen. Some of its proposals implement the recommendations of a number of distinguished Committees. They meet the need for reforms which some of us have advocated for many years.

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The Standing Committee in another place, packed with legal luminaries, discussed the Bill for nine weeks, through 19 full sessions. They considered it in an atmosphere virtually free from Party, and made many improvements to the original Bill. In this House, the greatly enlarged Bill will be considered in the same atmosphere, by an even more eminent body of jurists, and it is not unreasonable to assume that further improvements will be suggested. Be that as it may, I am confident that, when it becomes an Act, this Bill will be a beacon lighting the way in our courts and penal establishments for many years to come. In a Bill of nearly 90 clauses and six Schedules, a clause-by-clause analysis would be both tedious and unhelpful. I propose instead to summarise briefly in some parts, and in others at greater length, to explain the thinking behind our proposed actions, and the administrative steps which will flow from them.
The 27 clauses of Part I are concerned with committal proceedings, and with new provisions regarding evidence, procedure and trial. They provide for committal proceedings in certain cases without consideration of the evidence; for written statements to be admissible as evidence, equally with oral evidence; for restrictions on the publication of reports of committal proceedings—all subject to appropriate safeguards and all designed to improve the efficiency of the machinery of criminal justice, whilst safeguarding the interests of the accused. In Clause 10 we provide for majority verdicts, one of the Bill's most controversial proposals, which I am sure we shall debate very fully and in Committee. For this reason, though I have much ground to cover, it is necessary for me to state now the Government's reasons for this step.
It is no unwarranted innovation. No sudden whim, but a reform which has been canvassed for a very long time. Of all the authorities on this subject, ancient and modern, I will quote but one, Jeremy Bentham, who said:
"If the work of forming verdicts, had been the work of calm reflection, working by the light of experience, in a comparatively mature and enlightened age, some number, certain of affording a majority on one side, viz., an odd number, would on this, as on other occasions, have been provided; and to the decision of that preponderating number would of course have
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been given the effect of the conjunct decision of the whole."
It is because he is "working by the light of experience" that my right honourable friend has put this proposal in the Bill. At present a disagreement, necessitating a new trial, requires only one juror of the 12 to stand out against a verdict for conviction or acquittal. Such figures as we have, suggest that disagreements occur in from 3½ to 4 per cent. of cases. At consequent retrials, juries appear to split about fifty-fifty between convictions, on the one hand, and acquittals or further disagreements, on the other. In not a few of the cases disagreement is caused by an irrational juror whose decision is prompted not by the evidence, but by dislike of a particular law or of the police, or even, as in one case mentioned in another place, because he does not "believe in fingerprint evidence".
Time-wasting, and sometimes cruel, as such disagreements are, they would not, standing alone, be too alarming. But the really grave and mounting problem with which we must deal is that of deliberate corruption or intimidation of jurors, to secure a vote for acquittal. In the last year or so there have been a number of major cases, mainly in the Metropolitan Police area. One last year attracted comment by the noble and learned Lord, the Lord Chief Justice. During the first trial of this case two jurors were seen to be approached by associates of the accused. The judge discharged the jury, and the trial had to start again. During the second trial, no fewer than three jurors reported that they had been offered bribes. Even so, in the event, of the five accused four were acquitted. The fifth, a bank messenger, who was convicted was probably the least important.
The trouble is, my Lords, that we know nothing of these cases when the juror does not speak. We see only the tip of the iceberg. And these cases usually involve the men most difficult to get into the dock—the "back-room boys" of large-scale organised crime, who are responsible for a considerable proportion of our total crime losses, averaging some £300,000 a week. We cannot allow these men to succeed in their contempt for the processes of justice.
It has been urged that the proper way to deal with this menace is to protect

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juries from interference. We are trying to do this, and in one current case 82 police officers have been engaged on surveillance of the jury for more than a month—and that is in addition to those who are protecting witnesses. Can it really be argued that this is the answer? Is it not far more sensible to remove, or try to remove, the motive for suborning a juror?
During our discussions we shall hear the most authoritative legal opinion on our proposal, but a Gallup Poll of about 70 per cent. in favour of majority verdicts leaves little room for doubt that in our proposal we have the backing of public opinion. And I would draw your Lordships' attention to the safeguards in the Bill. We are not providing, as in Scotland, for a simple majority, but for one of 10 to 2. That means that 83 per cent. of the jury must agree. How often in those matters with which we are familiar, do we find such a high proportion agreeing on a question of fact? Or to quote Forsyth:
"How seldom do we find in the casual intercourse of life that the first 12 men we meet take the same view of a disputed fact."
And he adds:
"it is quite certain that the unanimity is only apparent and not real, and is purchased at the sacrifice of truth".
Therefore, to further the cause of truth my right honourable friend proposes that a majority verdict shall not be accepted until the jury have deliberated for at least two hours, and that they should then announce in open court the numbers agreeing and dissenting. We believe that with these safeguards there is nothing in our proposal for the innocent to fear. On the contrary, we are convinced that it will increase public respect for our system of criminal justice, and strengthen the jury system by visibly adapting it to the needs of to-day. Also in Part I of the Bill we propose that convicted criminals should be disqualified, either for 10 years or for life, from serving on juries, and we provide penalties for infringement.
My Lords, most of us have long deplored the fact that, every year, upwards of 15,000 persons whose offences are judged by the courts not to merit imprisonment, are nevertheless made to suffer all the social, economic, and domestic penalties of imprisonment, through
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being remanded in custody by the self-same court, which later decides they should not go to prison. In the Bill we attempt to reduce this number by enacting that, subject to extensive safeguards, persons who are to be tried before magistrates' courts for an offence punishable summarily with not more than six months imprisonment shall be granted bail. We also provide in Part I added powers for magistrates to try summarily certain offences under the Forgery Act 1913; and we impose a prohibition on the imposition by a magistrate of a sentence of imprisonment or detention in a person's absence.
Before leaving Part I, I would mention one matter on which Her Majesty's Government will ask the House to amend the Bill at a later stage. One of the matters which my noble and learned friend the Lord Chancellor and my right honourable friend the Home Secretary asked the Law Commission to consider in its first programme was the decision in the case—in 1961—of Director of Public Prosecutions v.Smith. The Commission have recommended that the law should be amended to reverse the decision of the House of Lords, and that a subjective test should be applied in ascertaining the intent required in murder, and all other offences, where it is necessary to ascertain the existence of intent or foresight. The Government believe that that recommendation will be generally welcomed by legal and other informed opinion.
The Law Commission made other proposals affecting the nature of intent in murder. These need further consideration, but we did not think it right on that account to delay making a change in the law which has been widely demanded.
I now turn to the twenty clauses of Part II relating to the powers of the courts to deal with offenders. In the first of these we take the long overdue step of abolishing preventive detention and corrective training, and put in their place a new method of dealing with persistent offenders. To qualify for sentence as "persistent", an offender must satisfy five conditions. He must be convicted, on indictment, of an offence punishable with imprisonment for two years or more. The conviction must be within three years of conviction for an offence carrying an equivalent penalty, or of his final release from prison after serving a sentence for

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such an offence. He must have had, since the age of 21, at least three convictions for an equivalent offence. On at least two of these he must have been sent to prison, corrective training, or preventive detention. Finally, the aggregate of these sentences must have totalled not less than five years.
If all these unhappy conditions are satisfied the court may, if they consider it necessary for the protection of the public, impose an extended sentence. In so doing the court must issue an extended sentence certificate. An extended sentence can be for as much as five years, where the maximum for the offence is not more than five years, or for 10 years where the maximum for the offence is not more than 10 years. Where the maximum for the offence is 10 years or more, this also becomes the maximum for the extended sentence. These maxima compare with an effective minimum of seven, and a maximum of 14 years, under the present system of preventive detention which is to be abolished. Extended sentence prisoners will be eligible for licensing, after one-third of their sentence, under the scheme I shall be describing later in my speech.
The White Paper The Adult Offender quotes the dictum of the late Sir Alexander Paterson: "You cannot train men for freedom in conditions of captivity". In the Prison Service, we have to. And I believe that when the prison spell is sufficiently long for effective training, we are doing so with increasing success. This, however, cannot apply to the 65 per cent. of all prisoners who are sentenced to imprisonment for six months or less, and for whom imprisonment only defers and renders more difficult the solution of their problems. Allowing for remission, these people are in prison for periods ranging from a few days up to a maximum of four months. Thus, since this period is insufficient for effective rehabilitation, it means that two out of every three prisoners are sentenced to imprisonment solely as a punishment—a punishment of which prison is a comparatively small part, compared with the added punishments of loss of their job; discontinuance of qualification for social security benefit; breach in relationship with the family, and the insulation of the prisoner from the habit of ordinary work and of coping with life's problems in
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normal society, to say nothing of the lifelong difficulties which dog a man's foot-steps when he leaves prison.
Where the crime warrants it these things cannot be helped, but the Government are not satisfied that such hardships, inflicted on many of the two out of every three prisoners who serve four months or less for minor crimes, bring a sufficiently worthwhile benefit to society at large. For this reason, we propose a number of ways to ensure that many such offenders shall not be sent to prison. It has been alleged that our sole motive is to reduce the pressure on prison accommodation. This is not so. My right honourable friend the Home Secretary decided on these measures well before the 1966 prison population explosion. Never the less, on a day like this, and for the next four or five months of summer, in a situation where we have nearly 9,000 men sleeping two and three in a cell designed for one man, and in most cases so designed 100 years ago, we shall welcome the alleviation which may come from the exclusion from prison of offenders who can be better dealt with in the community.
It is nine years since we passed the First Offenders Act, and the last thing I did in another place before coming here was to move its First Reading. The Act instructed magistrates' courts not to commit to prison first offenders who could be dealt with by any other means. Yet every year some 7,000 first offenders are sent to prison, the great majority for less than six months. We propose to deal with these, and indeed with a much wider range of offenders, by means of mandatory suspended sentences. We ask your Lordships to agree that a court which passes a sentence of imprisonment of not more than six months must suspend the sentence for a period of not less than one year or more than three years, unless first, the offence involved violence or threat of violence, possession of a firearm, explosives, or offensive weapon, or indecent conduct towards a person under the age of 16; or, second, the offence was not originally dealt with by way of a probation order, or order for conditional discharge, or committed while the offender was subject to such an order; or, third, the court has passed, or proposes to pass, a sentence of imprisonment for another offence which it is not

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obliged to suspend; or, fourth, the offender is already serving a sentence for another offence; or, fifth, he has previously served a sentence or has been subject to a suspended sentence.
In the Bill we also give power to the Home Secretary to submit an order for the approval of Parliament bringing within the mandatory provisions for suspended sentences offenders who have not recently been in prison or under a suspended sentence. There is also power to make an order extending the mandatory provisions to sentences of imprisonment of twelve months or less. That, of course, would be later on, in the light of experience. In addition, the Bill provides that courts which pass a sentence of not more than two years may, at their discretion, suspend the sentence.
My Lords, we believe that the shock of appearance and trial before a court, and the infliction of a sentence, albeit suspended, will restore many offenders to the path of rectitude without recourse to prison. If, however, the offender commits another offence during the prescribed period of suspension, the court, in addition to inflicting the penalty appropriate to the subsequent offence, must order the suspended sentence to take effect for the original term unless, having regard to the circumstances which have arisen since the suspended sentence, it would be unjust to do so. If they think the full sentence would be unjust they may substitute a shorter term of imprisonment or an additional period of suspension, or take no action at all with regard to the suspended sentence.
If a suspended sentence has to be executed, no one will be worse off than if the offender had been sent to prison immediately. But if the offender gets safely through the period of suspension the result will be in every way an improvement on the immediate committal to prison which takes place under existing legislation. It will be less costly to the community than either prison or probation, and infinitely less costly in terms of uncovenanted hardship for the offender and his family. The Bill also provides powers for the Home Secretary to make rules so that, in cases where the rules apply, the court must obtain and consider a social inquiry report before passing a custodial sentence. We hope this
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will reduce the number of men sent to prison for the less serious crimes—men who at present often leave behind a desperate family situation made much worse by their absence.
Another substantial field for reduction of the number of non-useful, perhaps even harmful, prison terms lies in the greater use of substantial fines, and their determined collection in cash, in place of too-ready and over-costly committal to prison in default of payment. The present level of maximum fines is too low, and even derisory. In Clause 34, therefore, we propose to increase from £100 to £400 the maximum fines which magistrates can inflict under Section 19(6) of the 1952 Act. In Clause 76 and Schedule 3 we take power to increase a very wide range of fines. The majority of the increases are of the order of four and five-fold, and reflect the change in the value of money; but others, ranging up to a fifty-fold increase, also reflect a more realistic assessment of the gravity of the offence.
At present some 10,000 persons go to prison every year in default of payment of fines. This is a grave waste of the taxpayers' money and a loss to the nation's productive effort. And on financial, general penological and social grounds imprisonment in default is greatly inferior to extracting the fine. Of course, imprisonment must remain as the ultimate sanction. The Bill does not take away any substantial part of the courts' powers of enforcement. It merely makes adjustments to the existing procedure, with the object of ensuring that, so far as possible, fine defaulters are sent to prison only if the court has considered or tried all other methods of enforcement, and if the court, before committing the defaulter to prison, has inquired into the reasons for the default.
With this object, Clause 35 supersedes part of the existing enforcement code contained in the Magistrates' Courts Act 1952. The main changes we make are, first, that a court will no longer be able to refuse time to pay because of the gravity of the offence or the offender's record; and, second, that in every case where a court has given time to pay it will be required to hold a means inquiry before committing a defaulter to prison.
Clause 36 enables fines to be enforced in the civil courts. This is a corollary of

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the more important Clause 37, which enables fines to be enforced by attachment of earnings orders within the meaning of the Maintenance Orders Act 1958. When that Act was passed it halved in its first year the number of men in prison for default in maintenance payments. Without necessarily expecting the same result for fine defaulters, the Government believe that attachment orders for fines will be a useful addition to the powers of the courts, enabling them to extract the money from a significant number of offenders who would otherwise be sent to prison.
My Lords, although it is placed in Part VI of the Bill it would, I think, be convenient if I dealt now with our plans for excluding from prison another substantial body of offenders who serve short sentences. Every year there are some 5,000 committals to prison for drunkenness offences, including about 4,000 in default of payment of fines. The actual number of persons concerned is substantially less than 5,000, because many go to prison several times in the course of a year—the record being held, so far as I am aware, by a man who managed to collect no fewer than 236 convictions in less than two years. The work of drying out and cleaning up these men, well knowing that they will soon be back, is a stupid waste of our badly-strained prison resources, particularly at prisons like Pentonville, where drunks account for one in six of all admissions. Neither the excellent clinic there nor the fresh air we provide at Spring Hill open prison is a substitute for the continuous support these sick people need if they are to be, at least partially, restored to useful citizenship. Prison is not the place.
We therefore propose that a fine not exceeding £50 shall be substituted for the existing provisions in a number of Acts which at present authorise a fine of up to £10 or a short term of imprisonment, or both. But the Home Secretary will not make an Order implementing this change until he is satisfied that sufficient suitable accommodation is available for the care and treatment of these people within the community. We intend, with the help of voluntary bodies, to set up therapeutic hostels where offenders, while receiving continuous support, can go out to work and keep themselves. A start has already
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been made, and from the limited experience gained so far we know that even the most degraded, skid-row types, who have not worked for years, can be helped to a position where they can keep in work and behave responsibly. The Home Secretary has charged me with responsibility for setting up these and the ordinary multi-purpose after-care hostels, and I am confident we shall make good progress.
I turn now to Part III and the provisions dealing with the treatment of offenders. The most important of these is the proposed power to release a prisoner on licence when he has served a third of his sentence and provided he has also served twelve months in prison. Every prisoner who satisfies those conditions will be considered for release, but he will not appear before a board or committee. Initially, his case will be considered by a local review committee at each prison. My right honourable friend will lay down the arrangements under which these committees will work, and these will allow for a single member, providing he is not a prison officer, to interview the prisoner. This, we think, will introduce humanity into the procedure and reduce the element of strain.
My Lords, the process of change in an individual's prison regime will remain independent of, but naturally will have a bearing on, the process of selection for parole. We are proceeding as rapidly as possible, as your Lordships will be aware, to allocation of prisoners on sentence, and to the categorisation of prisons into classes A (special security). B, C and D (the open prisons). The assessment of the conduct a man in prison may determine his transfer from a maximum "B" to a closed, but lesser security, "C" prison, and from "C" to open conditions. It may be expected that prisoners whose response to training has justified transfer to open conditions will have satisfied some of the criteria justifying release on licence, and they will not be unaware of the significance of favourable transfers to more permissive régimes.
In their consideration of the cases to recommend the local committees will be guided by full information about the prisoner and by regular reports indicating the prisoner's progress and response to training. And they can avail themselves of the views of members of the prison

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staff in close contact with their charges. The major question the committee must answer is not whether the man is a good prisoner, in the sense that he conforms with the rules, although that is not unimportant, but whether, on the evidence, he is likely to make a good citizen, and benefit both society and himself, through earlier release. The Home Secretary will also appoint a Prison Licensing Board to which he will refer those cases which appear to him, from the reports of the local committees, to be suitable for consideration, for release on licence. The Secretary of State will be able to release a prisoner on licence only on the recommendation of the Board, and this will also be the position regarding the release of prisoners serving life sentences, and corresponding juvenile cases. The Board will not interview prisoners, but may arrange for a single member to do so.
The Bill preserves present arrangements for consultation with the Lord Chief Justice and the trial judge, in life-sentence cases, but with life-sentence prisoners there will be no minimum period of one year, and of course there cannot possibly be a minimum of one-third of a life sentence. The Home Secretary will determine, on the advice of the Board, the conditions of the licence under which a prisoner is released, and licensees will be subject to recall to prison. Recall of a licensee by the Secretary of State will require the prior agreement of the Licensing Board, but in urgent cases he will have the power of recall without the Board's agreement. When he exercises this power the Home Secretary must inform the Board, and will be obliged to release the prisoner forthwith if the Board so recommends. This will also apply if, after considering written representations by a recalled licensee, the Board recommend his immediate release.
My Lords, the degree of success which we achieve through these proposals will depend in large measure on the efforts of the Probation Service. Not only will its members be responsible for the supervision of prisoners released on licence, but those members who are prison welfare officers will have a major part to play in preparing prisoners for acceptance of after-care. At present all too few accept it in any real sense. The present number of prison welfare officers is inadequate for this purpose, and we propose over
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the next two years an increase of well over 100 per cent. on the present strength, so that eventually each welfare officer will be responsible on average for no more than 125 prisoners. The beneficial effect of rehabilitation in prison would be largely dissipated without effective after-care services, because if prisons become genuinely reformative, release is not the end but a continuation of the process. We have therefore taken steps to enable after-care to be decentralised, and for the links with prisons and the understanding of community involvement to be strengthened.
Many probation services have increased, and are increasing, their recruitment of volunteer aids, and my Department, by setting up regional consultative committees, has provided the pattern for further co-operation with the voluntary movement, as they help to plan the provision of after-care hostels in every area. The regional committees include representatives of probation committees, the Probation Service, the Prison Service and N.A.C.R.O., the national body of the voluntary movement. Observers from the Home Office will attend as necessary. They will advise on the need for hostels and their location, and stimulate the development of new hostels, including the adult probation hostels, which we intend to provide as yet another alternative to prison. When these arrangements are functioning fully, my Lords, we shall at last be able to claim that our rehabilitation service begins on the day a man enters prison, and does not end until he is firmly back on his feet in the community. Clauses 79 and 80 in Part VI of the Bill are designed to facilitate this work.
Before I leave the question of release on licence it is, I think, necessary to utter a word of warning, so as not to encourage false hopes. Each year upwards of 4,000 men, having served 12 months in prison and one-third of their sentences, will become eligible for consideration for release. From the time, 18 months ago, that our proposals were first published in the White Paper, when my noble friend Lord Stow Hill was Home Secretary, we have received many inquiries about the likelihood of release of particular prisoners. It is therefore necessary for me to make it clear that release on licence is not automatic but has to be earned;

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justified by the sort of criteria I have mentioned. And it cannot begin when this Bill receives the Royal Assent. Rules have to be laid before Parliament; the Board and local committees constituted and a great deal of preparatory administrative work completed. Some phasing of its introduction is inevitable so that the review machinery does not become clogged at the start. In these circumstances we shall be unable to begin releases on licence until next year, but in the interests of all concerned we shall press ahead as quickly as we safely can. Meanwhile, I think it can be fairly claimed that the machinery we have devised is a guarantee of responsible judgments and just decisions: and a guarantee also that the possibility of early release will depend on a prisoner's own efforts.
May I now refer briefly to Part IV of the Bill, which consolidates the law governing the grant of legal aid, and gives effect to some of the recommendations of Mr. Justice Widgery's Committee on Legal Aid in Criminal Proceedings? The most far-reaching change is a provision that applicants for legal aid, if their means are sufficient, may be required to pay a contribution towards the legal aid costs. The Bill also provides more effective arrangements to enable persons convicted on indictment to receive legal advice on the question whether there appear to be grounds for an appeal. I think this is a proposal of major importance. The Widgery Committee gave valuable guidance to the courts on the criteria which should be applied in deciding whether legal aid should be granted. As the Home Secretary has stated, the Government agree in principle with these recommendations, and it is hoped that in due course effect will be given to them. It is not, however, proposed to commend to the courts at present those recommendations which can be implemented under the existing powers, as we believe that all the recommendations, whether they require legislation or not, should come into operation as a whole and not piecemeal.
Part V, my Lords, relates to shot guns and is a case for experts. In the four clauses of Part V of the Bill we seek to end the present unrestricted sale of shot guns. These weapons, as well
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as having their proper place in agriculture and sport, can, when misused, become one of the most deadly firearms generally available. It will now become an offence subject to a penalty of six months' imprisonment and/or a fine of £200, to have or own a shot gun without having a valid shot gun certificate. This certificate procedure will be new, and different from the present firearm certificate procedure under the Firearms Acts of 1937 and 1965. There will be very few exceptions, but where places are being used for particular events, such as Bisley competitions—but not to shoot game—chief constables may permit persons without United Kingdom certificates to take part. Strict rules about supervision will be the prerequisite in all cases. Visitors to this country from overseas will be exempt for not more than one month in any twelve month period, so as to allow the visitor who has come for a short period of shooting to bring his own guns with him. No person under the age of 15 may accept a shot gun or ammunition as a gift, and no one may make such a gift; and there are penalties for infringement.
My Lords, the method I have adopted of explaining the Bill in accordance with its main themes has left me with several separate clauses. I will refer to three of them. Clause 54 abolishes corporal punishment in prisons. I, for one, welcome the departure from the penal system of the last practical evidence of the 19th century belief in the civilising influence of official brutality. Clause 73 provides that the offence of making false written statements actually tendered in evidence, under Clauses 2 and 7 of this Bill, is punishable with a maximum of two years' imprisonment. Clause 74 provides that persons who make false statements of means in connection with an application for a legal aid order, or in relation to default in payment of fines, will be liable on conviction to up to four months' imprisonment, or a fine of £100 or both.
Finally, I should mention two Amendments, on Scottish points, which we shall propose in Committee. So far as treatment of offenders is concerned, this is an English Bill. There is a traditional principle, which the Government think is right, and should be maintained, of separate English and Scottish legislation on this subject. But we have come to the conclusion that there is one point at

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which an exception must be made. The provisions regarding the release of prisoners in Part III of the Bill constitute such an important practical change in the law that the Government do not think it can be enacted for England and Wales only. Accordingly, we propose to extend these provisions to Scotland. The Government also propose to amend the provisions of the law governing the transfer of prisoners, to enable Lord Mount-batten's suggestion to be implemented; namely, that the new maximum security prison to be built in the Isle of Wight should he available for prisoners from Scotland who require this standard of security.
My Lords, I hope that, without going into detail on points which we can discuss at length in Committee, I have given your Lordships a clear picture of the main proposals of this Bill, and our reasons for them. When enacted, it will simplify the procedure and save the time of the courts; it will help both the police and the courts to bring criminals to justice. And, not least, while removing from the penal system archaic or unsatisfactory practices, it will provide us with greatly improved methods, which should help us to achieve greater success in our efforts to turn criminals into decent citizens. As such it deserves, and I am confident will receive, your Lordships' wholehearted support. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Stonham.)
3.35 p.m.
LORD BROOKE OF CUMNOR: My Lords, if I may do so without presumption, I should like to offer my warmest congratulations to the noble Lord, Lord Stonham, for the comprehensive and always interesting manner in which he has presented this Bill to your Lordships' House. He has delivered a speech which I am sure will have been heard with pride and satisfaction by the Home Secretary himself. At the outset, I must express my apologies to noble Lords, and particularly to the noble Lord, Lord Airedale, in that very soon after I sit down I have to keep an unavoidable appointment which I made some time ago, when it was understood that this Bill was to have its Second Reading taken on Monday. But I hope I shall be back to hear the later speeches of what promises to be a long debate.
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My Lords, this Bill strikes me as a collection of items, most of them helpful, and noble Lords, particularly the noble Lord opposite, will not be surprised to find me welcoming a number of them in view of their past history. Clauses 8, 9 and 10 implement recommendations of the Ninth Report of the Criminal Law Revision Committee about Evidence, a subject which, when I was Home Secretary, I asked that Committee to review and to report upon. Clauses 12 and 13 are based on two of the valuable recommendations of the Departmental Committee on Jury Service which I set up in 1963. Clause 28, at long last, as the noble Lord implied, abolishes preventive detention—a decision which I announced to Parliament as long ago as 1964. I am sorry that it has taken so long to give it legislative force, but I welcome the action now, The whole of Part IV of the Bill springs from the Report of the Departmental Committee on Legal Aid in Criminal Procedure, the Widgery Committee, which I appointed because it seemed to me that the time had come to review the whole of that subject. Let me hasten to add that there are other important clauses in this Bill which owe a great deal to the work done by the noble Lord, Lord Stow Hill, during his 14 months as Home Secretary; so that at least three Home Secretarys have played a part in the gestation of this Bill, although I give the present Home Secretary full credit for bringing it eventually to birth.
I mentioned the Departmental Committee on Jury Service, over which the noble and learned Lord, Lord Morris of Borth-y-Gest, presided with such distinction. That Committee's Report was completed and published more than two years ago. It made some 58 recommendations, of which this Bill implements two. I have some reason to believe that the other 56—not all of which would require a change in the law—are still under consideration. I cannot help asking why those that would involve legislation could not have been included in this Bill. Action in this field, too, is overdue. The present law is largely based on the Juries Act of 1825. The present law produces a great and undesirable preponderance of men over women on juries, which the Morris Committee recommendations will correct. I feel certain that

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both Houses of Parliament would unanimously support another recommendation of that Committee: that no one should be qualified to serve on a jury who cannot read, write, speak and understand the English language without difficulty. Your Lordships might well think it more important and urgent to make the law ensure that, than to present Parliament with Clause 11 of this Bill which, for the first time, provides for majority verdicts in England and Wales, a subject which of course was outside the terms of reference of the Morris Committee.
Let me say at once that I am personally in favour of majority verdicts, and I am prepared to support that with my vote if need be. Clause 11 will probably be one of the most controversial clauses to be dealt with in your Lordships' House, and I do not really think that the Home Secretary has enough evidence to prove his case for this change up to the hilt. I am not happy about either subsection (2) or subsection (3) of that clause; but I am ready to declare my own belief that the main subsection, subsection (1), should be given a trial.
The treatment of the Morris Report illustrates, in microcosm, my main criticism of a Bill which contains many good proposals still in their separate parcels, if I may express it like that. As a Bill, it has no unity. It is based on no profoundly considered philosophy of justice or punishment. Historians, looking back, will say that the major tragedy of these times in the field of crime and punishment was that the Royal Commission on the Penal System, which was set up in 1964, was dissolved again in 1966 before it had completed its work. My own future ideas in 1964 had been for a shortish Criminal Justice Bill in the 1964–65 Session to deal with fines, preventive detention and a number of such detailed matters that were ripe for action; and then later on a major Criminal Justice Bill at the end of the decade, much more epoch-making and radical than this one, and based on a whole new philosophy of punishment with modern application, such as I believe that the Royal Commission, by deep and comprehensive study, would by then have worked out.
That chance has been missed. It will not easily come again. We have missed it because the Government were in such
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a hurry to announce their own views on a number of important subjects, which they did in the two White Papers, The Young Offender and The Adult Offender, without waiting for the Royal Commission, that a number of members of the Commission, understandably perhaps, but very regrettably, said that they were not prepared to go on spending their time working out considered objective advice to the Government on the whole penal system when the Government had already jumped to conclusions on various aspects of it. I believe that both the Home Secretary's concerned—the present Home Secretary and his predecessor, the noble Lord, Lord Stow Hill—would have liked the Royal Commission to continue and complete its work, but they found that they had undermined it.
So now we have this Bill, which is like a number of useful separate parcels bagged together. It was examined with enormous thoroughness in Standing Committee in another place and (I entirely agree with the noble Lord, Lord Stonham) in a non-Party spirit, at 19 sittings, one of which went on until half-past one in the morning. I trust that the noble Earl the Leader of the House will spare us an ordeal like that on this Bill, because half-past one in the morning is not the best time of day to do justice. I make no criticism, but the Bill seems to me to have been examined in another place predominantly from the point of view of lawyers. Indeed, the noble Lord, Lord Stonham, said that the Standing Committee was packed with legal luminaries. I trust, we shall have the full benefit of that in your Lordships' House, too, but I hope that we shall also look at it carefully and understandingly from the standpoint of magistrates, of the Probation Service and of other interests vitally concerned, to whom it is of very special importance. This is not a lawyers' Bill only; it is just as much a layman's Bill. You cannot be sure of getting justice by leaving it entirely to lawyers.
Personally, I am in broad agreement with the purposes underlying the first seven clauses, headed "Committal proceedings", about which the noble Lord, Lord Stonham, said, I think, not very much. We shall probably have to look carefully at Clause 3 in Committee, but the general idea of shortening the time

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taken up in proceedings before examining justices must commend itself to almost everyone, provided that the rights of the defendant are properly preserved. The next group of clauses, based on the 9th Report of the Criminal Law Revision Committee, I have already mentioned. I should like to express my own thanks to Lord Justice Sellers and his Committee for that Report, which I think was completed less than six months ago, and also to congratulate the Government on so speedily acting on it.
Clause 15—"Restrictions on refusal of bail"—will probably require examination in Committee, though I fully understand and share the Government's desire not to have more people remanded in custody than is really necessary, not simply because they crowd up already overcrowded local prisons, but because it is an act of gross injustice whenever a truly innocent man is put behind bars. The rest of Part I consists mainly of useful tidying up provisions, though Clause 19 sticks out like a sore and ugly thumb. This clause seems to owe its place in the Bill solely to the present Home Secretary's personal view that it should be made very difficult indeed to stage a successful prosecution of a book for obscenity. I do not think Clause 19 will survive impartial scrutiny.
Coming to Part II, I am quite sure that we are right to abolish preventive detention and collective training as distinctive forms of punishment. The conditions for extended sentence in Clause 28 are, I think, identical with those that I proposed to Parliament in 1964. The proposed maximum lengths of the extended sentences are different and in general rather shorter; but all that is something to consider in Committee.
Personally, I am strongly in favour of experimenting with the suspended sentence, though Clause 30(3) seems to me to tie the court down too tightly; and I cannot believe it right to compel a court to suspend a sentence of six months' imprisonment when the offender has already shown his colours by getting himself sent to a detention centre. Let me add at once that I am convinced that it is right, whenever it is possible, to avoid sending a person to prison for a short first sentence. A short spell in prison is open to criticism anyway on the grounds the noble Lord, Lord Stonham, mentioned.
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A short first prison sentence all too often merely removes the deterrent fear of the unknown, and I am sure that so far as we possibly can we should bring it about that no one goes to prison for a first time except for grave misconduct and on a substantial sentence.
This brings me to the series of clauses, Clause 35 onward, concerned with the enforcement of fines. Let us, when it comes to Committee, examine whether these are really going to be effective for their purpose. Of course we do not want more people in prison for non-payment of fines than is absolutely avoidable, but even more important than that is to make sure that the offender can never get away with it. Perhaps at this point I may just turn to the later clause, Clause 75, dealing with drunks, and say how much I agree with the general purpose of avoiding filling up Pentonville and other local prisons with people who are simply there because when out of prison they cannot keep sober. I am glad that the Government are now experimenting with sending them from London to Spring Hill Open Prison. When I was Home Secretary I made great search for alternative premises to which drunks could be sent, because it is ridiculous that they should be in the full security of an ordinary prison. It was extremely hard to find anything, and I notice that Clause 75 is not to come into force until the Secretary of State is satisfied that sufficient suitable accommodation is available for the care and treatment of persons convicted of being drunk and disorderly. It is not entirely clear on the face of this clause how the court will manage to send the drunk to that suitable accommodation when it exists, but that again is a matter which we can consider later.
I will not say anything about the clauses amending the law on probation orders and probation committees, because I hope that my noble friend Lord Hamilton of Dalzell, with his special interest and knowledge of the Probation Service, will deal with them. I am sure he will approve, as I do, of Clause 46 regarding social inquiry reports. This, and the whole next Part of the Bill dealing with release on licence, only highlights the crying need for a sufficiently well-staffed Probation Service. The noble Lord, Lord Stonham, said something about enlarging the present welfare service. I, for one, should be

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grateful if the noble and learned Lord the Lord Chancellor, when he comes to wind up at the end of this long debate, will say more about the prospects of our securing an adequate Probation Service—that is, adequate in numbers. It is no use passing enlightened legislation if the trained men and women who are essential for implementing it do not exist.
I think we are right to experiment with release on licence, and my noble friends and I are grateful to the Government for yielding to Opposition pressure in another place and agreeing that there should be an independent Prison Licensing Board, and that the Home Secretary should not decide all these cases himself without the assistance of any external advice. I have had to carry the responsibility of deciding a number of individual cases concerning release and recall, and I think I can see all the pros and cons, but I feel sure that in order to carry conviction that justice is being done it is desirable that there should be this Prison Licensing Board. I feel sure the noble Lord, Lord Stonham, will understand if we need later to probe Clause 48 with particular care, because it was only added to the Bill during the final stages in another place. We should like to know a great deal more about the local review committees and how they will work, as well as about the procedure for the Prison Licensing Board.
A point which I think is more than a Committee point is whether all those who are released from prison before the expiry of their sentences ought not to be under licence until the date when their sentences finally expire. I am very conscious of the danger period that begins with so many prisoners soon after they find themselves back in the free world again, just as I became equally conscious, when I was Home Secretary, of the numbers of men in prison who could to everybody's benefit be let out earlier. That is not for one moment to criticise the courts for passing excessive sentences (I do not think that is what happens), but simply to record the plain fact that the punishment of being sent to prison has a quick effect for good on some prisoners, though at the far extreme it
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has no reformative effect at all on others.
We have a long list of speakers, and I will not detain your Lordships by seeking to go right through Parts IV, V and VI of the Bill. I feel sure that every valid point will have been expressed by way of criticism or commendation before this debate is over. I find much more to commend than to criticise in the Bill: I almost said "in the Bill as a whole"; but it is not a whole; it is a collection. With the cutting short of the work of the Royal Commission, Parliament will now have to wait many years, I fear, for the Bill that we really want; namely, a Criminal Justice Bill which digs new foundations deep, and does not simply improve the superstructure.
More and more I feel convinced that we must get reparation into our penal plan, along with deterrence and rehabilitation. This Bill stops short of that; it does not touch it. More and more I feel certain that we must both enlarge and rationalise the methods available to the courts for dealing with young offenders. This Bill does not touch that. I felt sure that we should get profound help on that subject from the Royal Commission, under the chairmanship of my noble friend Lord Amory, with all his wisdom and his intense interest in the good of the young.
As to grown-up offenders, I believe that new ideas of punishment are needed too. Even when this Bill is in operation, there will still be hundreds, indeed thousands, of men in prison who might have a better chance of turning back into good citizens if there were a wider range of treatments available that could be applied to them, other than the ordinary custodial prison sentence. A prison system is necessary and essential, but if it is applied to different kinds of people of every sort as a means of little more than depriving them of liberty, it can become terribly wasteful. Luckily, we have a body of prison governors who I believe are doing the very best they can with the prison system as it is. But I hope that in the treatment of offenders the appeal of your Lordships will be neither for extreme laxity nor for extreme severity, but for experiment, experiment, experiment. There is a long way to go, and it requires a comprehensive type of thinking which is somehow absent from

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this otherwise useful Bill, which deserves that your Lordships should give it a unanimous Second Reading.
3.57 p.m.
LORD AIREDALE: My Lords, I should like to join with the noble Lord, Lord Brooke of Cumnor, in congratulating the Minister on a most interesting and lucid speech, and to join with him, also, in describing this Bill as very much a miscellaneous provisions Bill. I am afraid that nobody in Opposition could fail to suggest that in some respects this is a curate's egg. But let me begin by saying that at least it gets off to a good start in its effort to shorten and simplify committal proceedings. This, I feel sure, must be welcomed by almost everybody in England.
We then come to the next and most miscellaneous collection of clauses, the chief of which is Clause 11, which must be, I think, one of the most contentious clauses, dealing with the majority verdict. I propose to take some little time over this clause, and I am rather afraid that when I have finished with it the time for me to sit down will have arrived. What are the Government's reasons for wishing to introduce majority verdicts? I think there is a first and perhaps underlying reason, and that is the thought that too many guilty men are nowadays going free. Then there is the second and more explicitly stated reason, which is that too many juries disagree. These are two quite separate and distinct points, and I should like to deal with them separately and in order.
First, do too many guilty men go free? It is perfectly true that 40 per cent. of those who are tried by jury are acquitted. If it were the fact that this meant that 40 per cent. of those who go into the dock go out free men, this would be most alarming. But this is not so, because, of course, the majority of those who are arraigned plead guilty and do not come before a jury; and when that is taken into account, the 40 per cent. of acquittals by juries becomes 16 per cent. of acquittals of those who are arraigned in the clock, which is a much less alarming figure.
There is another comforting figure to be quoted, because I think that when we are discussing majority verdicts we are discussing them in connection with offences against property, involving
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violence. Those are the organised crimes which, we are told, lead to intimidation of juries, and so on. But one finds that juries are far less ready to acquit in this type of case than in the ordinary run of cases. The 16 per cent. of acquittals by juries include cases like drunk-in-charge cases, where it is notorious that juries are acquitting practically the whole time. But when we get to the offences against property, involving violence, the organised crime, the 16 per cent. comes down to 7¼ per cent.
My Lords, is 7¼ per cent. of acquittals of this class of case an unsatisfactory figure? Let us put it the other way. What is a satisfactory figure? Would 0 per cent. of acquittals be a satisfactory figure? It would not satisfy me. I should be absolutely horrified to think that no jury ever acquitted somebody of a crime against property, involving violence. I should be horrified at 1 per cent., 2 per cent. or 3 per cent. of acquittals. I should regard this as far too low. Four per cent. or 5 per cent. would perhaps be about right. It is possible to suggest that 7¼ per cent. is a little on the high side. That may be so, if one thinks that every time a guilty man is acquitted by a jury that is a tragedy. But I do not think one can take that view.
Take the case of a professional man who is charged with some serious fraud. His life is in ruins already. If he is convicted he is bound to be sent to prison, not because anybody supposes it is going to do him the slightest good, but purely as an example to other people in positions of trust, so that they will not commit serious offences of fraud. He goes through what he calls the ordeal of his trial. I know we say that we have abolished trial by ordeal; but this man would say that he went through an ordeal as the jury went out to consider their verdict, and he saw the prison gates opening before him. But when they come back, and the foreman says, "We find him not guilty", this man practically faints with joy and relief. He is never going to come back into a criminal court again. So it is not fair to suggest it is a tragedy every time a guilty man is acquitted.
There is a clause in this Bill, Clause 10, which will go a considerable way to

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reducing the percentage of guilty men who are acquitted. Clause 10 will abolish the "sprung alibi", the case in which the accused suddenly at the last moment presents an alibi which the prosecution has no chance to check on. This is going to be a very salutary measure, and that is going to help a great deal in this respect. We cannot net criminals with certainty in the sort of way they net salmon in some of the rivers of Canada, where the mouth of the river is netted continuously with a net of very large mesh which lets through all the young, small, breeding fish up to about 7 lb, and catches practically all the mature fish. I wish we could do that with our net to catch criminals; but we cannot. We have a very imperfect net indeed with which to catch criminals. If we are to throw this net wider, in order to ensure that fewer guilty men go free, I am afraid that we are going to start getting some of the innocent; and I could not subscribe to that.
The second reason given for introducing majority verdicts is that too many juries disagree. The Minister gave us the figure just now: the proportion is under 4 per cent. Again, if one remembers that the majority of those who are arraigned plead guilty, the number of cases that end with the disagreement of a first jury is well under 2 per cent. And what happens then? The case, of course, is retried. The second trial is a very wearisome business for counsel engaged in it, because it has all been gone through before and the whole thing is stale and flat—it is a miserable performance. But at any rate the prosecution start the second trial with a great advantage which they did not have at the first trial: they know what the defence is. And the result is that the statistics show that in second trials the chances of conviction are twice the chance of acquittal. I believe that the statistics show a proportion of 4:2:1 in second trials, after the first jury have disagreed. Four persons are convicted; two are acquitted, and in one case there is a second disagreement. There you have the second disagreement being 1 in 7 of 2 per cent. Let us call this a quarter of 1 per cent. Are the Government telling us that a quarter of 1 per cent. of disagreements is an unsatisfactory high figure? If so, let us consider the reasons why we are told that juries disagree.
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We are told that there are two reasons. The first is that one or two out of twelve jurors may be perverse "cranks". The second is that one or two of the twelve may have been bribed or intimidated. Let us deal with the two perverse "cranks". I think there may be something in this contention: there are always some. There was the Irish juryman who emerged from the jury room in a great state of discontent, saying, "Eleven more obstinate follow citizens I never met in all my life"! There are some of those. But I am rather surprised that Her Majesty's Government are suggesting that even as many as one in twelve people are inclined to be perverse "cranks"; because I would remind them it was almost exactly by a percentage of one vote in twelve that they obtained their majority at the last General Election over their political opponents. In any event, there is a clause in this Bill, Clause 12, which will keep ex-prisoners off juries, and thus get rid of a great many, I suspect, of the perverse and "cranky" jurors who now serve. That will get rid of the spirit of,
"There but for the Grace of God go I."
I am sure that this will be a very great improvement, and I certainly welcome Clause 12.
Now let us come to the second reason: that one or two jurors may be bribed or intimidated. I believe that there has in recent years been one case of a conviction of a person for intimidating a juror. I did not hear the Minister refer to it. I am not surprised he did not, because I do not think that one single case helps Her Majesty's Government's argument on this point. I believe that it is also suggested that there are nine or ten cases where intimidation of jurors was seriously suspected. That does not seem to me to be very impressive evidence of the need to sweep away the unanimity rule of verdicts in criminal cases, which we are told has been for 600 years one of the safeguards of the liberty of the subject.
Clause 11 might be just bearable if the fact that a verdict was a majority verdict was not to be disclosed, so that nobody knew whether it was a unanimous verdict or only a majority verdict. But no. The clause provides that the fact that it is a majority verdict must be disclosed. The Home Secretary says that

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he must know how this experiment is working. I believe we shall get endless statistics produced from this. I do not doubt that we shall have fewer unanimous verdicts, but the sort of thing that will happen will be this—I am not suggesting that I know what goes on inside jury rooms, but believe this is the sort of thing that happens. On the average jury there are one or two jurors who are inclined to stand out. They say, "We are not quite satisfied". The other ten say, "But you are not going to stand out against us completely, are you?" And after they have discussed the matter, the one or two will say, "No, if you ten are satisfied, we do not feel so strongly about it that we will stand out against you", and a unanimous verdict is quite properly returned.
But under the new system these two people will say, "Don't you ten argue with us. We are not satisfied. We are perfectly entitled to have our reservations. It does not have to be a unanimous verdict any longer"; and a majority verdict will be returned and no doubt the right honourable gentleman the Home Secretary will be delighted. He will say, "Look at all these majority verdicts—all these cases that would have resulted in disagreements among juries. Look at all the time that would have been wasted if these cases had had to be tried a second time". I venture to suggest that this argument will be upon a false basis, and there will be others who will be shaking their heads and saying, "We wish we could go back to the old days when jury verdicts had to be unanimous and we did not have all the uncertainty among juries that we are getting at the present time."
Let me quote a short passage from the speech made by the right honourable and learned gentleman the Attorney General in the Second Reading debate in another place on December 12 last. This was the speech in which the Attorney General was winding up the debate, after hearing all the arguments on every side. This is what he said:
"Action is needed to make this bribery, or attempted bribery, unprofitable, and it is my view and that of my right honourable friend that the introduction of majority verdicts will tend to help in the solution of this problem, while, of course, providing no guarantee that it will be successful."—[OFFICIAL REPORT, Commons, 12/12/66, col. 203.]
If that was the sum total of the enthusiasm of the Attorney General for
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this measure, after hearing that lengthy debate, I do not think a very strong case has been made out.
I do not like to throw spanners into the works without trying to provide some alternative constructive proposal, so let me now put forward a proposal of my own, in all humility. It is only by custom that when a second jury has disagreed the accused is not tried a third time. I suppose it is the English sporting spirit: if he has managed to escape from two juries, good luck to him—let him go free! But if it were thought that he had had two, or even one, jury bribed, I do not think much of the English sporting spirit would be left in his favour. So I put forward this suggestion. Let chief constables be invited to get in touch with the appropriate Law Officer in every case in which there have been two disagreements by juries, and let the chief constable put forward any solid grounds he has for believing that there has been intimidation or interference with either of the juries; and if the Law Officer thinks there are solid reasons for believing that, then let there be a third trial.
LORD STONHAM: My Lords, that is exactly what happened in a fairly recent case where there was reason to suspect bribery, and a third trial did take place.
LORD AIREDALE: My Lords, can the noble Lord tell us the result of that third trial?
LORD STONHAM: Yes, my Lords, the accused person was convicted.
LORD AIREDALE: My Lords, is that not splendid? I think that is what we want.
Let us pass this Bill without Clause 11. Let us have Clause 11—majority verdicts—introduced as a separate Bill by a Private Member, and let us have a free vote on all sides of the House. Then we shall know what the House really thinks about it. By that time, perhaps the Home Secretary will be able to put before us more than one case in recent years of the intimidation of a juror, and more than nine (or whatever the number is) cases of suspicion. Then the House can look at the whole matter on a free vote. But let us leave Clause 11 out of this Bill.
4.15 p.m.
LORD STOW HILL: My Lords, I hope your Lordships will give a warm welcome to this most important Bill. I should like at the outset to congratulate the Home Secretary on having introduced it, and to add a word of congratulation to the noble Lord, Lord Stonham, for his really masterly statement of its purposes and working. There is a long list of speakers, and much as I should like to dwell upon a number of the very important provisions and reforms which the Bill contains, I will address myself only to one particular aspect; namely, Clause 11. I do that because I have the misfortune here to differ from the view which Her Majesty's Government have taken. I very much regret that they are proposing to introduce the principle of majority verdicts.
The arguments for and against this proposal have been fully canvassed in another place. They have been rather overlaid by historical references and rather encrusted with adjectives like "conservatism" and "sacrosanct", and that sort of thing. I should like to strip all that away and say, in two sentences, why I am so much against the principle of majority verdicts. The first sentence is that even now, when we have unanimous verdicts, there are wrongful convictions. I know it. I had the clearest case through my own hands when I had some responsibility in this matter. Such cases are very rare, fortunately, but they do happen. The second sentence, if I may so describe it, is this: if we introduce the principle that a man may be convicted if 10 out of 12 jurors think he is guilty, we shall be greatly enlarging the risk of his being wrongfully convicted. It is regrettable if a guilty person is allowed to go free; it is a first-class catastrophe if an innocent man is convicted.
The noble Lord, Lord Airedale, put before your Lordships some interesting figures. It is sometimes said—and I cordially agree with it as an adage, subject to qualification—that it is better that a dozen guilty men should go free than that one innocent man should be convicted. That statement contains a profound truth, but the noble Lord, Lord Airedale, pointed out that if we analyse the figures the percentage of acquittals is something like 7½ per cent. Am I being wholly unreasonable in thinking that in at any rate some of those cases the per
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sons who were acquitted were in fact innocent and not guilty? Why it should always be assumed that juries are wrong when they acquit I cannot understand, even in cases of driving while under the influence of drink or drugs. I sometimes feel great regret at the disparaging observations which are made with regard to what I think is the most admirable system of justice in the world, trial by jury in this country. If one is trying to get as near as human wisdom can devise to the certainty that verdicts are right, we cannot achieve, at any rate by any system which civilisation has yet thought of, such certainty as nearly as we can by the system of the British jury, properly directed by a British judge. It is now sought to pull that system to bits, or perhaps I should rather say gravely to impair its operation, to increase the risk of innocent persons being wrongfully convicted.
Why is it done? It is said: "Criminals may secure acquittals because in a jury of twelve when there are two people who wish to acquit, whereas ten wish to convict you should assume that the two are either 'cranks' or have been corrupted." Why in the world should one make that assumption? What right has anybody to make the assumption that in the case of a jury, when nothing at all is known about the two who dissent, they are either corrupt or "cranks"? That is very strange doctrine in this democracy of ours; that if you disagree with others you must be either a crook or a "crank".
The jury, after all, is a cross-section of ordinary people in this country. The court has no means of knowing why the two dissented—nobody has any means of knowing. The only people in the world who know why they dissented are the two jurors themselves and their fellow-jurymen and jury-women to whom they disclosed their reasons. They may not be crooks or "cranks" at all. They may be people who have managed to penetrate rather more fully into the evidence and have taken a view which, contrary to the view of the majority, is the right view. They may be perfectly honest, honourable people without any "crankiness" at all, and they differ from their colleagues. It seems to me little short of an outrage to say that we have the slightest right to assume, because two people out of twelve differ

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from the other ten, therefore they are either "cranks" or corrupt. They may be the two who have a better grasp of the facts; who have attached greater consideration than the others to particular aspects of the evidence, and who have in fact arrived at what is the right conclusion as against the others. I therefore very much deplore this proposal.
I want to take the argument a little further. I always hesitate very much before I make reference to a case which has been tried, and in which some of the actors are still living. To revive painful memories of a case of this sort is something one should do only with great hesitation and reserve, and I hope that those concerned will forgive me if, for this reason. I refer to the Hanratty case for the purpose of serious argument. It was a unanimous verdict in a case which depended on identity. The unfortunate young woman in that case had been subjected to most abominable treatment. She made a mistake at first about identity, and then later explained that mistake. The jury heard her, listened to her, assessed her evidence, and heard her being cross-examined. They went out, and were out hours considering their verdict. They came back and unanimously gave their opinion that they were certain the charge had been proved against the prisoner.
In that case, assume that the verdict had been by a majority of ten to two. We then had what to me is the detested system of capital punishment. By a verdict of ten to two Hanratty would have been sentenced to death. In due course that sentence would have come before the Home Secretary, and it would have been his duty to make a recommendation to the Sovereign as to whether the law should take its course. Can anybody in this House conceive, in a case of that sort, a Secretary of State recommending to the Queen that the law should be allowed to take its course? He would certainly, I should have thought, say "No; in this case I must recommend a reprieve". And why? Simply because there were two people, about whose identity he knew nothing, about the probity of whom he knew nothing, about the clarity of views of whom he knew nothing, who dissented from the other ten. Because of that fact he would be unable to banish from his mind the possibility that the verdict might
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be wrong. He would recommend reprieve because the verdict was uncertain.
It makes not the slightest difference in the world, in my respectful submission to your Lordships, that the capital penalty has gone. A man should not be sentenced to six months' imprisonment unless the charge is certainly proved. It makes no difference whether he is faced with the death sentence or faced with the shortest curtailment of his liberty. It is vital to our democracy and criminal system that nobody is deprived of liberty after trial by jury unless certainty has been reached. It is said "Yes, but you must invert the argument". It is said, "Surely, if you have a case in which ten people on the jury are for acquittal but the other two for conviction, the accused person should be acquitted". Again I do not agree. If you adopt that view you are adopting what is, in effect, something like the Scottish practice of "not proven".
I ask your Lordships to envisage the case of a man who lives on a council estate, for example, where everybody knows everybody else in the road. He has been charged with some offence of assault upon a woman or child with disagreeable features in it, a sexual aspect or something of the sort. He has been put upon trial, subjected to the appalling ordeal which trial of that sort means, and he is acquitted. At the moment, he is acquitted by unanimous verdict. He is accepted back in his family, by his workmates, and he can resume his normal life. All of us, I think, would regard it as grossly unfair to treat that man otherwise than as an innocent man, although in fact, technically, what the jury has said is not, "You are innocent", but, "We have not been convinced that you are guilty". Nevertheless, by common acceptance of fair standards a man acquitted by unanimous verdict of a jury is accepted back and able to resume his station in society, and to live in future a normal happy life with his family and friends.
Assume that man has been acquitted, not by unanimous verdict, but by a majority of ten to two. When he comes among gatherings of his friends, when he walks in the street, when he is seen by neighbours, can one imagine the knowing looks—"You managed to fool ten, but not the other two. Keep away from my wife and my child ". That man would be under a stigma for the rest of

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his life and would never live it down. His work may be near the place where he lives; it may be impossible for him to move; it may be impossible to change his way of life. He is therefore, as a result, subjected to that sort of treatment, when he may be as innocent as possibly can be; he labours under this cloud of suspicion for the rest of his life.
I do not accept that it is a good thing that a man should be acquitted by a majority verdict of ten to two. I would urgently ask the Government, if it is not too late, to reconsider their view about this. The figures upon which they have decided to make this momentous change, I should have thought, are slender in the extreme. What are they? They are 3·4 to 4 per cent. throughout the country of disagreements, and at the Central Criminal Court in 1965—and it is said that it is there that the mischief resides—under 5 per cent.; 49 cases out of 1,181, I think it was, just under one in 20. These cases include the cases, after all, of the serious criminal conspiracies of quite often unbelievable complexity, in which it would be very surprising if you did not find disagreement among juries now and again. That, I should have thought, was a pathetically slender ground for introducing this change. The case is just not made out.
Not only that, but when attempts are made to corrupt juries, to approach them, it is said, "This is the tip of the iceberg. You do not know about it". In point of fact very often you do, because jurymen report it to the police. I was interested to note in the one case of which the Home Secretary gave details either two or three jurymen reported that they had been approached. I think it is a grossly unfair reflection upon our fellow-citizens to imply that it is very easy to corrupt a jury. There are weak men and weak women everywhere, but the great majority of our fellow citizens, the overwhelming majority, regard jury service as a sacred duty of the highest obligation, and a jury is not so easy to corrupt as this change would imply. One thinks of the greasy-looking "plug-ugly" going up to a man in a public house and saying, "Here is £100. Do me a little favour". Most times he would come out with a somewhat bloody nose
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and with the bribe still in his pocket. I just do not believe that it is a case of walking up to a juryman and saying, "Here is some money. Let my friend go." For those reasons—I hope I have not deployed them at too great length—I am against this proposal. Apart from that, the Bill contains a great many extremely valuable reforms which I am glad to see, and I congratulate the Government on introducing them.
4.30 p.m.
VISCOUNT DILHORNE: My Lords, the noble Lord, Lord Stow Hill, and the noble Lord, Lord Airedale, have devoted the whole content of their speeches to Clause 11 of the Bill, which, although it is an important clause, I myself do not regard as one of the most important provisions of the Bill. I will say something on that subject a little later. The Bill is a massive and extremely important Bill, and I should like to add my congratulations to those of the noble Lord, Lord Brooke of Cumnor, to the noble Lord, Lord Stonham, for the way in which he so clearly expounded a massive Bill, but a Bill of bits and pieces. Some of the bits are very good; some of them are not so good, and I hope we shall improve them; and some of them, in my view, are definitely bad, and I hope we shall cut them out.
With this long list of speakers I think it would be tedious if I went through the Bill clause by clause and expressed my support for those bits which I consider to be good; but if I do not say something about the good bits a false impression may arise that I am just critical of the Bill and nothing else. Indeed, perhaps a false impression may arise from the fact that I am speaking this afternoon with the Lord Chief Justice on my left and a former Lord Chief Justice just beside me, both of whom can be relied upon to keep me in a comparative degree of order. I am sure your Lordships are glad to see Lord Goddard here and paying such keen attention to this debate.
I propose to speak mainly on the parts of which I am critical, but I should like to begin by referring to the new committal procedure. I have repeatedly urged that the present procedure for committal is archaic, time-wasting and expensive. Witnesses have to come and

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wait to give evidence, and they are seldom cross-examined. Police witnesses have to spend much time on this task. It would be interesting to know how much money is spent on the taking of depositions, and all that. I do not think that there are any statistics available, but it must run into many millions, and it seldom serves a useful purpose. So I very much welcome the proposal that magistrates should be able to commit for trial on written documents. That will greatly relieve the pressure on magistrates' courts, and I hope that this procedure will be widely and almost invariably used. When it is used, there will not be any hearing of the evidence in a magistrates' court—nothing in the nature of a hearing of the case, and, apart from the evidence of the accused and the charges on which he is committed or of which he is acquitted, nothing to report.
When the accused person wishes to cross-examine witnesses for the prosecution, or to submit that there is no case to answer, or indeed to call evidence himself, then my belief is that it is right that there should be a hearing of that evidence in the magistrates' court. But it is quite wrong, in my belief, when there is anything in the nature of a hearing in a magistrates' court at the instance of the accused, that the proceedings should not be fully reportable in the Press and elsewhere and that they should be reportable only if the accused asks for it. What is the reason for such a proposal? It is sometimes said that publication of the evidence for the prosecution in a magistrates' court may prejudice the subsequent trial. That is easy to suggest but difficult to substantiate, and I doubt whether it ever happens. Jurors make up their mind on what they have heard at the trial; and even if a juror has seen a newspaper report of the committal proceedings it is not likely that he will remember it when the trial comes along, nor is it likely that if he does remember it his recollection, which is likely to be vague, will affect his judgment of the evidence.
I suppose the strongest argument for this change is that at the magistrates' court some evidence may be admitted which is excluded at the trial as not admissible, and the possibility, which I should think so remote as not to be worthy of
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serious consideration, that a juror may recollect the piece of evidence at the trial. But where there is a piece of evidence of doubtful admissibility, surely the right course is for the magistrates to say that they will hear that piece of evidence in camera, and not just on account of that circumstance to make it law that the proceedings shall only be reportable at the accused's request. I hold no brief for the Press on this matter and I have received no brief from them, but there is, in my belief, a great public interest in the public administration of justice, and only where the case for it has been conclusively established and in exceptional circumstances should publication of proceedings in criminal cases be restricted.
It is on that ground that I base my objections to Clause 3. I feel it is anomalous that while Clause 6 requires the magistrate to sit in open court, Clause 3 makes it impossible for a member of the public to know what is going on in a committal case unless he attends the court or the accused asks for the proceedings to be reported. So, in my view, Clause 3 is a bad provision, and I tell the noble Lord that on the Committee stage I shall do my best to see that it is excised from the Bill. To sum up, I suggest that the position should be that if written statements are used and the accused is committed on those, there would be no reports; there would not be a hearing to report. But where there is a hearing at the instance of the accused, where at his instance there is something in the nature of a trial, the proceedings should be in public; and the public interest requires that they should be as fully reportable as they are to-day.
I turn to the next subject of importance dealt with in the Bill and the subject on which the noble Lord, Lord Stow Hill, and the noble Lord, Lord Airedale, spoke with such feeling and intensity. No doubt we shall have a great debate on this matter in Committee. I would just say to the noble Lord, Lord Airedale, with the greatest respect, that I must confess I found his statistics singularly unconvincing when he took into account the number of cases in which there had been no trial at all but a plea of guilty on indictment. I do not think one ought to base one's view on this particular question on what statistics may or may not show. At the present moment there are

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no statistics, and no information can be obtained which shows, when a jury has disagreed, how great the disagreement has been. It may not be just one or two; it may be many more than that. Although I would share with the noble Lord, Lord Stow Hill, and the noble Lord, Lord Airedale, as I think everyone does, a great aversion to increasing the risk that an innocent person may be convicted, I completely dissent from Lord Stow Hill's proposal that to introduce a majority verdict in this country would be to increase the risk of that happening. If the noble Lord, Lord Stow Hill, was right about that, then he ought to go on to contend and to establish that there is a greater risk of a Scotsman being convicted in Scotland, although innocent of a crime, than if that Scotsman comes to this country and stands trial here. But that is not one of the reasons why Scotsmen come to England.
LORD BOOTHBY: Hear, hear!
VISCOUNT DILHORNE: The difficulty is that in Scotland they have a bare majority. I do not myself believe that there is in the slightest an increased risk of an innocent person being convicted if we have a majority verdict. The noble Lord, Lord Stow Hill, said that people when innocent can still be convicted with a unanimous verdict. That may be so, but it does not seem to me that that argument carries any weight unless it be the case that there really is an increased chance of conviction on a majority verdict, and I do not think that is established at all.
Then it is said that the case for change is not proved. How can the case be proved? Could any public inquiry or investigation serve any useful purpose? None of us knows what goes on in the jury room. We can speculate, as did the noble Lord, Lord Airedale, but we do not know. I should be very adverse to any kind of investigation into what happens in the jury room. Then it is said that there is only one case where a man has been brought to trial for intimidating a jury. No one can say that that is the only case which has occurred; we just do not know; and no public inquiry or private inquiry would elicit in how many cases this has occurred.
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It is not, as the noble Lord, Lord Stow Hill, suggested, a matter of a man in a four-ale bar offering a large monetary sum to corrupt a juror. The danger now is much greater and is that of intimidation—intimidation perhaps involving threats to the family on the telephone. Where a juror is on the telephone, it is easy enough to find out his number. In the old days, jurors were locked up and kept together until they returned their verdict. I am not suggesting that we should go back to that; but if we are not going to return to that system then we should do all we can to prevent and safeguard the administration of justice from being frustrated by the efforts made to corrupt or intimidate particular juries. So on that ground I would support this proposal.
It is not desirable on that ground alone. There may be people who hold so strongly to particular views that perhaps they ought not to be sitting on a jury at all. Take the case, which will no longer occur, of a trial for murder, when murder was capital, with a man or a woman being called to that jury who is a firm opponent of capital punishment and who knows that the return of a verdict of guilty can have only one consequence. I am sorry for people in that position; they should not, of course, be on the jury at all. But if they disagree in, on the evidence, the clearest case is it right that, because of that particular view, held independently of that case, the person on trial in a case which has been proved up to the hilt should not be convicted and should have to stand his trial again? In this country we have no means of finding out the individual views of jurors; therefore we do not know them. That being so, I consider that it would be an improvement in the administration of justice that such a person—it may be somebody who holds an equally strong view about blood sports—should not be subjected to pressure by other jurors, but should be able to say, "I adhere to my view, I do not agree, and it does not matter if the rest of you do agree." Is that likely to lead to an increased risk of conviction of the innocent?
I have undertaken a number of prosecutions under the Official Secrets Act, and I have been concerned in more than one case lest, perchance, there should be a well-known Communist upon the jury. If

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there were, whatever the evidence, however clear the guilt, there would be a considerable chance of a disagreement and of the whole trial being frustrated. Do we really gain anything by insisting that there should be unanimity of verdict? Scotland has had majority verdicts for a long time, and I am glad to see the name of my noble and learned friend Lord Guest among the list of speakers. But this is not applicable only to Scotland. We take great pride in our system of justice, a system which, if I may use the word, we have exported to what were the Colonies and to Commonwealth territories; and I am very grateful to the Home Office for giving me some information on this matter. It is indeed surprising to discover the large number of Commonwealth territories which allow majority verdicts in criminal cases. So far as I can find out, there has been very little criticism of them and no demand for their abolition.
The number of cases in which one is likely to have a majority verdict is, I believe, very small. The noble Lord, Lord Airedale, gave the percentages relating to those who plead guilty and those where there is a trial. I myself consider that the number of cases in which there will be a majority verdict will be extremely small—for this reason. Under the later subsections of that clause there must be a time for consideration before any such verdict can be returned; and I consider this to be a good proposal. I know that the noble Lord, Lord Brooke of Cumnor, was a little critical of it, but it is a similar system to that which obtains in many parts of the Commonwealth. If one now takes the total number of disagreements, I do not think one will find it likely that the number of majority verdicts, if this Bill is passed, will be considerable. However, I am sure we shall have a great debate on this matter at a later stage of the Bill.
LORD AIREDALE: My Lords, before the noble and learned Viscount leaves the matter of majority verdicts, he took me to task for bringing into account the cases where people plead guilty. But surely one must do this, because the cases which are fought before juries are doubtful cases in which there is something to argue about, and in those cases one would expect a higher percentage of acquittals.
VISCOUNT DILHORNE: My Lords, I do not assume that the cases which are fought are necessarily the doubtful cases. One starts with the case going before magistrates, and the magistrates who commit for trial need not be unanimous; at that stage a majority is sufficient. And if there is an appeal to quarter sessions against conviction by the magistrates, again it is a majority decision of the justices at quarter sessions. But when it comes to trial before a jury it is said, "That is all wrong: the decision must be unanimous." A case which has been committed for trial, having gone through the magistrates' court, when the judge or chairman of the court lets the case go to a jury, may be a difficult case to prove, but I would not accept the proposition that the vast majority of the fought cases are doubtful ones. Some are cases which are fought in the hope that some miracle will happen, like having upon the jury somebody who cannot read, write or hear.
The noble Lord, Lord Stow Hill, the noble and learned Lord the Lord Chancellor and I have all been members of the same circuit for many years. I recognise the sincerity of the noble Lord, Lord Stow Hill, upon this matter, and this is, I think, the first and unique occasion when I have found him to be far more conservative than I am.
I welcome the provision that prisoners who have served sentences of five years should be disqualified from sitting on juries, but I should be grateful if the noble and learned Lord the Lord Chancellor would just say a little about how this is going to work. It is true that if a man who is disqualified by reason of a previous conviction sits upon a jury he commits a criminal offence. But it will be an intolerable burden to place on someone who has, for instance, been convicted years ago, and ten years ago finishes a sentence of five years, if he is to be required, having re-established himself, having gained a good reputation in his locality, to get up when he is called to the jury box and confess to his past misconduct. I am sure that is not intended, but I should like—and I think it would be useful—the noble and learned Lord the Lord Chancellor to say how this provision will be operated to avoid the possibility of that happening.
Is a form, for instance, to be sent round to everyone called to serve as a juror

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which he can complete? Will his name then never appear upon a jury panel, or will his name be struck off the jury panel? I should prefer that his name never appeared on the jury panel, because if a line is suddenly struck through it people who see that jury panel after this Bill becomes law will be apt to suspect that that man has a criminal record. I think it is very important that we should know—I do not ask for a statement today, but perhaps we could be told when we come to the Question, "That the clause stand part of the Bill," during the Committee stage—how it is going to be operated.
I come now to the alibi provision. I welcome it, and I have urged it for a very long time. With regard to suspended sentences, I have no objection to giving the courts power to suspend a sentence if the suspended sentence is indeed a reality. One finds, however, that it is not provided here that if a person commits another offence he will serve that suspended sentence, but it is provided by the next clause that if he commits another offence the court before which he is then brought can relieve him of the obligation to serve the whole or part of the suspended sentence. I doubt whether that is at all wise or right, because I think that that provision greatly reduces the deterrent effect which ought to accompany a suspended sentence. I rather suspect that this provision lacks the reality which it ought to have.
Subsection (3) of Clause 30 is a most important provision, a far more important provision than majority verdicts; and I say, with the greatest respect to the noble Lord, Lord Stonham, that I think it is a throughly bad provision. What does it do? It is mandatory, and provides that magistrates shall suspend a sentence if the sentence which they pass is not more than six months. Under the Magistrates' Courts Act 1952, Section 19, that is the maximum sentence which magistrates can pass on an indictable offence triable summarily. An indictable offence is not just a minor offence, and this provision means that where a man is tried summarily on an indictable offence, and where the court would now think the only possible sentence was a sentence of imprisonment, and that there was no
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alternative, the court will in future have to suspend that sentence.
The belief is pretty widely held that the first time you are caught committing an offence you will be bound over, and nothing will happen to you. The provision in subsection (3) of Clause 30 really ensures that the second time you are caught not much is going to happen to you, because if you are thought fit for imprisonment the sentence will be suspended. I cannot help feeling that this is likely to lead to very great difficulties in the magistrates' courts.
Take the case, for instance, of two brothers charged together, one aged 21 and the other 19. The magistrates think it right to send the 19-year-old to a detention centre, but is it fair to do so if all they can do to the older brother, when they think he ought to be sentenced to imprisonment, is to pass a suspended sentence of imprisonment? Will that really be fair and just as between those two? I have no objection to the Home Secretary giving magistrates discretion in this matter, but I object to making it mandatory.
I entirely agree with what my noble friend Lord Brooke of Cumnor said about short sentences. Short sentences are, by and large, a bad thing, and any court ought to be extremely reluctant before passing a short sentence. But there are cases where imprisonment is really the only punishment that can be given, and to take away from magistrates the power of sending someone to prison on summary conviction for an indictable offence is, in my belief, utterly wrong. I do not think the reasons stand examination. The noble Lord said that the sole motive was not to reduce the prison population, but then he went on to say that of course it would have that result, and that it would be welcomed. If that be to any extent a reason which is actuating the Home Office then, with the greatest respect, I feel that they have their priorities wrong.
In these days, surely the last thing that we should want to do is to make it appear that the administration of the criminal law is getting soft and weak. The important thing is to avoid that happening. I cannot but believe that the retention of this subsection in the Bill will create that impression—and really t it will be more than an impression—and

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that it will deprive magistrates of a very important part of their powers, the power in an appropriate case to send to prison, a power which should be seldom exercised. So it will be abolishing one of the deterrents now available to prevent the commission of crime, and that should be the first priority.
The reforming of the person who has committed a crime is, I agree, of tremendous importance. But do not let us remove the deterrent powers of magistrates, and do not let us make it clear that a man can now really assume that the first time he will be put on probation, that the second time in a magistrates' court he will get a suspended sentence, and that the third time he may get that suspended sentence completely removed. I regard this provision, which will affect far more people in this country than the majority verdicts, as being one of the major features of this Bill, and it is with great sorrow and regret that I must say that I consider it a bad feature.
I now turn—and I will take it as shortly as I can—to what I call the licensing provisions. As the noble Lord, Lord Stonham, knows, I have for long been urging, and have been in favour of, an enlargement of the power to license prisoners and I welcome that provision in this Bill. I also welcome the fact that the Home Secretary has agreed, I gather somewhat reluctantly, to the creation of a Parole Board. I think that that is a most important feature. But it is very important that that Board should command respect from the public, from those engaged in the administration of the law and also from the prison population. In the Bill we are told that the Board is to have a chairman, but we are not told what kind of chairman he is to be. That is left completely and utterly vague.
In Schedule 2 we are told with some degree of precision who shall be included among its members. One member is to be:
"a person who holds or has held judicial office;"
To my mind those words are far too wide. That would qualify a junior recorder, of the smallest county borough. If this Board is to have the esteem it should have, it ought to include someone who has held or holds not just a judicial office but a high judicial office.
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I hope that consideration will be given to that point.
Then the fourth category of member of the Board is to be:
"a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders".
Those words are very vague. And if, as I think the noble Lord recognised, the main consideration is to be not whether a man has behaved well in prison, and so deserves to be licensed, but whether he is likely to go straight when released from prison, I am not sure that a person who has made a study of deliquency or of the treatment of offenders is best qualified to assess that prospect. I should prefer to see some member of the Prison Department as a member of the Board.
But what I think is much more important than the constitution of the Board is the powers it will have, and I hope that further thought will be given to these. First of all, as I understand it, there will be local review committees.
LORD STONHAM: My Lords, may I interrupt the noble and learned Viscount to make sure that I have got his thought on the constitution of the Prison Licensing Board correctly? I understood him to say that he thought somebody connected with the Prison Department should be a member of the Board. If that is so, would it not completely destroy the independence of the Board, which has seemed so desirable? The other point is that at two previous stages, both in the local committee and in the Department, of course, members of the Prison Service will have an opportunity to express a view about particular cases.
VISCOUNT DILHORNE: My Lords, I was not expressing a final view. I was saying that I should prefer to have on the main Board, the Prison Licensing Board, someone who has been or still is in the Prison Department, rather than someone who merely fulfils the description in subparagraph (d) of paragraph (1) of Schedule 2. One can think of many people who have devoted their lives to the Prison Service who would fill the position, and I certainly should not be against it.
But I want to come now to how the system, so far as I can see, is going to work. There will be the local review committee, to which the prisoner will

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apply if the rules permit him to do so; or his case will be reviewed by that committee. We shall no doubt hear about that. But who is going to be on that committee? It is quite right that the governor of the prison—or indeed any of the prison staff—should be available to give any information which is sought from him by the members of the committee, but I should think it wrong if at that level the governor of the prison was a member of the committee, because then, I think, the emphasis would be far too much on how the man has behaved in prison and far too little on how he is likely to behave when he leaves. It would also, I think, he putting the governor in a slightly embarrassing position. I should like to see the local review committee made an independent body. This is exceedingly important, because if a case does not get through that local review committee it does not come to the Home Secretary and therefore never gets to the Board at all. So it is extremely important that these filters should be right.
When a case does come to the Board, one sees that the Board will have before it only such material as the Secretary of State likes to give it. The Board will be entitled to have the prisoner interviewed by one of its members. That means that the persons whose cases come before the Board will be those persons who the Home Secretary thinks ought to be released on licence. I believe that that Board should be entitled to ask for, and obtain, such papers about the case as they may want; that they should be entitled, if they so wish, to consult with the judge who has tried the case, or the chairman of the court; and that they should not be restricted in this way. As I see it, under the Bill the Board will simply be asked to give a "rubber-stamp" approval to the Home Secretary's view. I agree it is very important that what the Home Secretary decides to do should be endorsed and approved by the Board, but I should like to see the Board a little more independent and a little more able to decide things on its own. I should like very much to consider whether we could devise some satisfactory way to ensure that cases which ought to come up to the Home Secretary on their way to
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the Board are not stopped at the first stage by the local review committee. We shall no doubt have an opportunity of considering that point during the Committee stage.
My Lords, I fear that, taking my speech as a whole, it must have sounded very critical, but there are many things in this Bill which I support, including majority verdicts. I reserve all comment on the proposal to embody the Law Commission's report on The Queen v.Smith in statutory form, except to say that that case has been more misunderstood by lawyers, and not least by the Law Commission, than any case I have known.
5.8 p.m.
LORD MORRIS OF BORTH-Y-GEST: My Lords, I regret that owing to my duties elsewhere I was denied the advantage of hearing the major part of the exposition of this measure by the noble Lord, Lord Stonham. Nevertheless, I trust that I may be allowed to offer a few submissions in regard to the Bill. Owing to an engagement made before the alteration of the date of this debate. I hope your Lordships will acquit me of discourtesy if I ask your Lordships' leave not to be in my place during the later stages.
I should like to express in general a welcome for this Bill, and respectfully to express my appreciation of the progressive, forward-looking and humanitarian approach which has guided the Home Secretary in introducing this measure. I am sure it is right that we should not regard any of our legal system as sacrosanct and not to be investigated. I very much approve of all the proposals in the early part of the Bill in regard to committal proceedings. I feel sure that there has been an unnecessary waste of time in years past, and I welcome the proposals to avoid that and to simplify procedure, as well as the other proposals in the early part of the Bill.
I welcome very much, subject to some of the matters that need exemption, as mentioned by the noble and learned Viscount, Lord Dilhorne, the proposals for release on licence. There is much here that will be by way of experiment. I feel sure that the experiment is well worth making. I must confess that I share entirely, if I may respectfully say so, some of the anxieties expressed by the

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noble and learned Viscount in regard to Clause 30(3). If courts have the duty and responsibility of doing what is right at the particular time and in the particular circumstances of a case, I feel that it would be unfortunate if they should find themselves unduly cramped by something laid down which is too rigid and restrictive. Therefore, I echo what the noble and learned Viscount has said in regard to that matter.
My Lords, although this is a measure which should be warmly commended, for my own part I feel that it has a blemish, in that it includes, among so much that is progressive, a proposed step which I regard as entirely retrograde. I refer to the proposal to introduce majority verdicts. The fact that a system has lasted fo 600 years is no reason in itself for maintaining that system if it is shown to be defective. But I would submit that, if a system has survived and thrived for 600 years, at least the onus is on those who suggest that it has now become defective to prove what they say.
LORD BOOTHBY: My Lords, will my noble friend forgive me for interrupting? The system of majority verdicts has worked very well in Scotland, and our system of criminal justice is incomparably superior to that of England.
LORD MORRIS OF BORTH-Y-GEST: My Lords, I was about to deploy one or two submissions before your Lordships. I am not unmindful that there is this system in Scotland; but I hope the noble Lord will forgive me if I do not deflect myself at this moment to deal with the question he has raised.
I think we are entitled to ask why this change is now proposed. We had a Criminal Justice Bill in this House in 1961 which became an Act. I do not recall that it was then suggested that the time had come to abandon the system that had for so long lasted; I do not recall that in this House noble Lords have been advocating this change. Why has it come about? The noble Lord, Lord Brooke of Cumnor, was good enough to refer to a Committee over which I had the honour of presiding. As that Committee has been mentioned, I hope it will not be thought unseemly if I refer to it. It is entirely clear that the question of majority verdicts was not within our terms of reference. Our terms
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of reference related to qualifications for jury service. They were:
"… to inquire into the law and practice in England and Wales regarding the qualifications for, exemptions from, and conditions of jury service, and related matters; and to make recommendations."
I refer to that at this moment only to say that at that time, May, 1963, no-one then thought of introducing majority verdicts.
The Committee heard evidence from a wide variety of important bodies and groups, and from important persons. Had we been charged with the duty of making some inquiry in regard to majority verdicts, it could easily have been done. I entirely agree with the noble and learned Viscount, Lord Dilhorne, that in any inquiry about jury service there is the limitation that one does not want to affect the secrecy that binds those who have served on juries. But at least one can get certain facts. We did our work during 1963 and 1964, and we reported in the early part of 1965. Our Report was published in, I think it was, April, 1965. Throughout our deliberations, if anyone had then thought that majority verdicts must be considered, our terms of reference easily could have been altered and we could have been charged with the duty of looking into the matter.
We were not invited to look at the whole system of trial by jury; but I do not understand that anyone wishes to change that system. There might he an inquiry in regard to that. It might be considered: "Although we have placed such faith in this system, may we not want to change it?" I am not averse to any change if we can show that that change involves improvement. But no-one has suggested that the whole system should be looked at. In the course of our work we considered the calibre of juries at the present time. That was relevant only because we were considering qualifications for the future and, naturally, we wanted to consider what was the result of having the present qualifications. We had a Rood deal of evidence on that. Some witnesses suggested that the quality of juries had deteriorated; others suggested that it had not. The latter view was the view of the majority.
In paragraph 48 of our Report, we said:
"The tribute to the quality of present-day juries quoted in paragraph 47 above is much

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more representative of the general tenor of the evidence presented to us than the criticism quoted in paragraph 46; and we cannot do better than to quote the following extract from a summary made by the General Council of the Bar of comments offered by a total of 78 Recorders:"
My Lords, before we decide to go in for majority verdicts, it would be at least of interest to know what the 78 or more Recorders think about this, and what the chairmen of quarter sessions—those who are dealing with the great majority of trials by jury—think about it.
This was the view put to us by the Bar Council. I am quoting the extract in the Report:
"'The general view is that the calibre of present-day juries is satisfactory and fully adequate to do proper justice. Many are impressed not only by their good sense, but, above all, by their very real sense of responsibility and their conscientious and fair approach to their duties.'"
That was the viewpoint put by others. The passage continues:
"The calibre of juries seems to have improved greatly during the last ten years, as a result to some extent, no doubt, of increased educational facilities, but probably more so, perhaps surprisingly, because of the great popularity of television broadcasts of court trial programmes. The average jury does not arrive in court wholly ignorant of its function nor disturbed by the novelty of the scene or procedure. The majority opinion is strongly against any suggestion of specially selected juries or trial by experts in any case, however complicated."
My Lords, I think we are entitled to ask what is the reason now made for this change, a change, as I understand it, first suggested in another place in August of last year. Why? What has happened? Why no suggestion earlier? Why no inquiry earlier? It has been mentioned by the noble Lord, Lord Airedale, with whose speech I found myself in entire agreement (as I was in entire agreement with the speech of the noble and learned Lord, Lord Stow Hill) that there are not enough convictions. But I do not think that is officially put forward at all for this proposal, so that may be set on one side entirely.
Incidentally, we have not any figures in regard to the number of trials and the number of convictions. We have a very good estimate made by the Home Office Research Unit, and we can place the greatest confidence in them and I have no doubt that their views will be
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right. But there is published each year a book of criminal statistics, a most elaborate book containing a wealth of information concerning crime. I invite correction if I am wrong, but nowhere in these massive books do we anywhere find, first, the total number of trials before a jury in England and Wales after pleas of guilty; and, secondly, the total number of those who were found guilty and the total number who were acquitted. As I say, the Home Office Research Unit have figures, which doubtless are representative, from which they are able to make the deduction which in no way do I challenge, for I have such respect for the work undertaken in the Home Office. But, my Lords, it is surely rather remarkable that so fundamental a change should be suggested without our having the elementary, basic figures.
But that is not the reason advanced—that there are not enough convictions. It has been suggested that, well, there may be a perverse man. We have always had the odd, perverse man in the community, and the occasional "crank" likewise—there is no change in 1966 as compared to the early years—but again I think it has been officially disclaimed as a reason for introducing this change. So the sole reason, as I understand it, for this suggestion is that it has been thought that in recent periods there have been attempts so to influence some members of a jury that in cases where everyone except the influenced person would be in favour of a conviction, there has been disagreement. My Lords, so the argument runs, if there is a disagreement there has to be a second trial, and obviously that is to be deplored, with all the expense that is involved. But if that is the reason, and the sole reason, advanced for this change, surely the first desirability is to get the figures. Again I say, and I invite correction, nowhere in these massive books do we find the number of cases of disagreement.
The Committee to which I have referred (and I apologise for referring to it again), as part of our duty of examining the calibre of juries made some inquiries. We asked for some figures and I think that those figures were probably the first figures obtained. At the Central Criminal Court in 1963 there were 699 contested cases in 27 of which the jury disagreed; and at the London Sessions in the same

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year there were 1,087 contested cases, in 29 of which the jury disagreed. That is in 1963 in London, where the problem is said to arise and where it is more or less agreed that there is a different situation from that which applies in other parts of the country. Those figures do not show any unhealthy state of affairs. I suggest that they show that the jury system is working well. It would be surprising if there were not a certain number of disagreements.
We said in our Report, in paragraph 357:
" The requirement in criminal cases that all 12 jurors must be in agreement on their verdict makes it inevitable that there will be a number of disagreements. It seems to us that this need cause no concern unless disagreements occur so frequently as to indicate that the orderly administration of justice is being prejudiced. Indeed it can be argued that the absence of a certain number of disagreements would itself be disturbing, since in the nature of things 12 individuals chosen at random are unlikely always to take the same view about a particular matter, and the existence of disagreement may, therefore, be evidence that jurors are performing their duties conscientiously."
We proceeded in the next paragraph to express the view:
"… that a disagreement, especially on a long case, can be a disastrous waste of time and money, and it could be argued from this that subject to certain safeguards majority verdicts should be accepted. While we do not advance this view, which in any case would take us outside our terms of reference, the question of majority verdicts is one which many people consider to be of importance and worthy of future consideration."
My Lords, it was not within our terms of reference, and therefore it follows that any views I am expressing are my personal views and not the views of that Committee. I suggest that before so vital a change as this is contemplated, the first thing would be to get the facts, and at the present time we do not have the facts and the figures in regard to the disagreements throughout the country. The noble and learned Lord, Lord Stow Hill, referred to some figures which were given in regard to the Central Criminal Court: 37 trials in the year 1965 where the jury failed to agree. Surely there is nothing alarming in that. They involved 49 people and we know what happened to those 49 people afterwards. In the case of 25 the jury, on a further trial, did agree and convicted; in the case of a further 14 the jury did agree and acquitted, and in the
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remaining cases there was a second disagreement. I again express concurrence with what the noble and learned Lord, Lord Stow Hill, said: those figures, as proof of the need for a change, give evidence which is slender and meagre to such an extent as almost to be derisory.
My Lords, that this is a fundamental change cannot, I suggest, admit of doubt. We have a horror of sending an innocent man to prison, and for centuries we have tried to avoid that by having as much certainty as possible. The certainty that we have tried to achieve has been in two ways: first, the judge directs the jury that on the evidence every one of them must be sure of guilt before they return a verdict of guilty; and the second requirement is that every one of the jury must agree. There is no magic in the number of 12 on the jury—we could have 11, 10, or even 7. We managed with seven when there was a shortage of manpower during the war. But the advantage of our system, the pride of our system, has been that not only must every juror be satisfied, but that also every jury must be satisfied. Are we, on this inadequate evidence, to jettison one part of a principle that so many of us think is a beneficient part of our legal system?
If a judge directed a jury that they must be reasonably sure before they convicted, I imagine that the Criminal Division of the Court of Appeal would quash the conviction. It is not enough to say, "reasonably sure". If a judge said that they must be "pretty sure" or "pretty certain", I imagine that the Criminal Division would frown upon those phrases. Can there be any doubt that, if we adopt the system whereby out of 12 people a majority of ten will do, whereby it is enough for a conviction that five-sixths think there is guilt, we are saying that there can be a conviction if the jury, as a jury, can say that they are pretty sure "because five out of six think that guilt is established.
I have expressed sincerely my admiration for so much that is in the Bill, but I regret that this one provision should now be included. I do not know whether it is too late for Her Majesty's Government to think again. If there is some further proof, if we can be persuaded that this system should be changed, I am ready to accept conviction to that effect.

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I do not think that we should regard any part of our legal system as free from being subject to careful examination, but I feel that on this evidence we are throwing away a great principle, and I regret it.
5.33 p.m.
BARONESS WOOTTON OF ABINGER:
My Lords, like the noble and learned Viscount, Lord Dilhorne, I would join the chorus of praise of this Bill before proceeding to make one or two critical comments. I find something to admire in every part of the Bill, with the possible exception of Part IV, which I regard as adding unnecessary complications to something that ought to be simplified. However I do not propose to discuss that in any detail.
I am delighted with Part I and its simplification of committal procedure. Perhaps I ought to profess an interest here, because I have spent more than forty years as a justice of the peace, and I am horrified at the amount of my life which has been wasted in hearing committal proceedings. In the whole of that long experience I have known only one case in which the bench on which I was serving did not commit. There was one other case in which the bench argued at considerable length before coming to a decision, and in the end the decision was that there should be a committal. I welcome tremendously in Part I the fact that we are now to be allowed to make certain conditions on bail. This legalises a practice which I think is a good deal more widespread than is generally admitted.
I welcome in Part II the fact that we are to have suspended sentences. The great difference between the suspended sentence and the conditional discharge is that a suspended sentence is easy to understand and the conditional discharge is not. If a man knows that a sentence of a year's or two years' imprisonment is hanging over him, that is perfectly plain, but if he is told that he will be dealt with for an offence if within the next year he commits another offence, this makes very little impact. I cannot agree, however, with the view of the noble and learned Viscount, Lord Dilhorne, that the whole effect of this provision is nullified by the escape
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clause, which allows the sentence not to be imposed if in the circumstances it seems unjust. I am sure that this is an absolutely necessary escape. We cannot have a rigid system. I believe that the fear that this will lead to an automatic reversion of the intention of the suspended sentence is quite unjustified. However, experience will show.
I welcome the provisions for licensing prisoners who have a determinate sentence, and above all I welcome the ending in Part III of what my noble friend Lord Stonham referred to as official brutality—namely, the final end of corporal punishment as an element in our penal system.
I think that a kind word should be said for the Government for having tacked on to the conclusion of the Bill, where they perhaps look a little irrelevant, the firearms provisions. I am extremely glad that we should have more stringent control of firearms and that the Government have waived any importance they attach to the consistency of the whole Bill in order to include these provisions.
The noble Lord, Lord Brooke of Cum-nor, regretted that this Bill had anticipated what might have been the findings of the now defunct Royal Commission. As a member of that Commission, who served on it with some assiduity for eighteen months, and as an unrepentant advocate of its dissolution, I would say that, on the contrary, had the Royal Commission still been in being we should not have had the Bill at all; or certainly not for a very considerable time. I think that the noble Lord (I regret that he is not at the moment in his place) had a romantic illusion as to the product that might come forth from that Commission, had it remained in being. I am delighted that we were not an obstruction which prevented this admirable Bill from being brought forward at this time.
I come now to one or two points in the Bill on which I feel doubts. The question of majority verdicts has been adequately argued by those who are much better equipped on this subject than I am, and I would add only one or two remarks. I think it is perfectly clear from the speech made in another place by my right honourable friend the Home Secretary, that the proposal to introduce a majority verdict in juries was made for one reason only: a fear that guilty men were going free owing to the

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fact that juries might be corrupted or intimidated, or might contain one or two cranks ". There was no reference to this proposal being necessitated by the fear that innocent men were being convicted. If this is the sole reason why a change is proposed, it is a profound reversal of what has always been the philosophy of British justice: that it is better that a guilty man should go free than that an innocent man should be convicted. It seems to me that this is a very odd way of dealing with the possible corruption or intimidation of juries. If a jury is corrupted or intimidated, surely the matter should be taken up on its own merits. It seems to me odd that we should say, "You are welcome to corrupt two, but you cannot corrupt a third"; and this is exactly what the proposal says.
Most important of all, it seems that we are making this change completely in the dark. My noble friend Lord Stonham referred to the irrational juror, and the noble Lord, Lord Boothby, told us that the system works well in Scotland. If I may say so with respect, the noble Lord is entitled to say that the system works in Scotland, but he has no evidence on which to say whether it works well or badly, for he has no knowledge whether it causes an innocent man to be convicted or a guilty man to be acquitted.
LORD BOOTHBY: My Lords, I know that it works well. I have been watching it for forty years. And why the English do not pay more attention to Scottish procedure I shall never be able to understand. It is far better.
BARONESS WOOTTON OF ABINGER:
I recognise that the noble Lord's Divine inspiration takes precedence over any regard for evidence. Of course, we have no evidence—and I think this is important—about what happens when juries retire. In the United States there has recently been an inquiry, very restricted, as to the results of jury trials when contrasted with the opinions of the judges who conducted the trials. Two American investigators inquired from 555 judges (they have a great many judges in the States) what was their view of the rightness or wrongness of the verdicts which their juries had brought in. They found that there was disagreement between judges and juries as a result of the trial in 19 per cent. of the cases, and that in
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16 per cent. of the cases the disagreement was on the side that the jury acquitted when the judge would have convicted. The judges then proceeded to give the reasons why they thought the juries had come to these, as they thought, wrong conclusions. But nobody asked the juries what was in their minds, and, as a result, we were not very much further forward.
Here I should like to make a proposal which I know is highly controversial and very radical. I think it is time we found out what goes on in jury rooms. I have listened to noble and learned Lords who have spoken so far in the debate, all of whom have upheld the sanctity of the secrecy of the jury. But I should have thought that it was time a responsible body inquired—if necessary, getting their evidence in camera from persons who have served as jurors—as to what is the procedure that goes on, so that we could collect a serious body of evidence about this institution. I have never understood why in this day and age this should be one social institution which has to he immune from any kind of impartial investigation—and the more so when it is an institution which makes decisions which are vital to the lives of our fellow citizens.
A large part of this Bill is designed to keep people out of prison who ought not to be there. This many of us welcome wholeheartedly. It may, however, entail some difficulty for unfortunate persons like magistrates who have to find something else to do with the people who now go to prison but who perhaps ought not to go there. I should like to assure my noble friend Lord Stonham that one of the sub-committees of the Penal Advisory Council—a sub-committee of which I have the honour to be chairman—is desperately searching for alternative forms of non-custodial treatment, trying to exercise their imagination in thinking up new possibilities, and also trying to wrestle with the difficult question of how a non-custodial penalty can be enforced if the defendant chooses just to disregard it.
I come now to one other topic on which I wish to say something, and that is the licensing of prisoners with determinate sentences. Here again, I am sure that the proposal contained in the Bill is an admirable one in principle. I am not quite so sure about the Licensing Board, and I

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shall have something to say about the constitution and powers of that Board in a moment. I think that, whoever does the licensing, there are certain principles which ought to be weighed most carefully. Perhaps I should add here that I say this with some experience of parole boards in other countries, where apparently—I speak now of Australia—there are no guiding rules and no clearly thought-out priorities, and where I have seen parole boards acting most carefully and conscientiously but upon their impressions of the moment, and often acting with disastrous results.
I am sure that whoever does the licensing must think clearly why a prisoner should be licensed and why he should not be licensed. He should not be licensed if he is a danger to the public. I hold that this should be the top priority, although, in itself, it is not an absolute one, because one may take risks with smaller offences that one would not take if the offences committed, or likely to be committed, are grave ones. One must take into account, secondly, the effect of detention on the prisoner himself. If he is deteriorating, that is an argument in favour of his being released—and we know that personalities do greatly deteriorate in prison over long periods of detention. Thirdly, the Board must take account of the effect on other people, both inside and outside prison. If that were not so, it would be quite reasonable to release a great number of murderers, because a great number of murderers are most unlikely to commit further offences. But this would be totally unpalatable to the public at large and, indeed, to other prisoners.
One must remember that this Licensing Board is, in a way, going to act as a sort of additional court of appeal. I have no doubt that the Board will be tempted to license prisoners more readily in cases in which they think the original sentence was very excessive. I was made aware of this the other day when I heard what appeared to me to be a most excessive sentence passed on certain prisoners, and I very much regretted that this would come into effect before they would have an opportunity of being licensed under the provisions of this Bill. It seems to
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me that this is one factor which has not received enough attention, and that this Board will, in effect, act as another form of appeal against sentence.
The White Paper was, if I may say so, rather glib about this matter of licensing. It said it was expected that we should license prisoners who would be likely to respond to generous treatment and who were not regarded as risks. This presupposes that we know who is likely to respond to generous treatment and who is not to be regarded as a risk: it did not say by whom they were not to be regarded as risks. I hope that the Licensing Board, when they come to these practical questions, will not only set out their priorities but also quantify; and I hope they will pay great attention to the research that has been done, which throws some light on the probability that a prisoner will turn out to be a risk.
The Home Office have sponsored, and through their own research department conducted, a great deal of research about the after careers of prisoners who have been treated in various ways. It is a great waste of money and of everybody's time if this research is continued, produces some results, and nobody takes any notice of them. I hope that one of the first things the Licensing Board will do will be to make a careful study of the evidence on which depends the question of who is likely to be a good risk and who is likely to be a bad risk.
My Lords, I understand that we are now to adjourn for the Royal Commission.

AIR CORPORATIONS BILL [H.L.]
Returned from the Commons, agreed to.

DEVELOPMENT OF INVENTIONS BILL [H.L.]
Returned from the Commons, agreed to.
House adjourned during pleasure:
House resumed.

ROYAL COMMISSION
6.0 p.m.
The following Bills received the Royal Assent:

Local Government (Termination of Reviews),

Private Places of Entertainment (Licensing),

Housing (Financial Provisions, &c.) (Scotland),

Road Traffic,

Agriculture,

Royal Assent,

Slaughter of Poultry,

National Insurance (Industrial Injuries) (Amendment),

Merchant Shipping,

Merchant Shipping (Load Lines),

Superannuation (Miscellaneous Provisions),

Housing Subsidies,

Road Safety,

Commonwealth Settlement,

Development of Inventions,

Air Corporations,

Edinburgh Corporation Order Confirmation,

Mersey Docks and Harbour Board,

Saint Mary-le-Park, Battersea,

Bath University of Technology,

Newcastle-under-Lyme Burgesses' Lands,

East Kilbride Burgh.

House adjourned during pleasure:
House resumed.

CRIMINAL JUSTICE BILL
6.13 p.m.
Second Reading debate resumed.
Baroness WOOTTON of ABINGER: My Lords, if I may resume where I left off, I have just one or two more things I should like to say. I was trying to put to your Lordships very strongly that it will be the duty of the Prison Licensing Board to take account of the actual evidence available about the probability of different prisoners committing subsequent offences. I should like to remind your Lordships that we already have a little evidence that bears on this. When we had preventive detention, it was the
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duty of an Advisory Board to recommend those detainees who should serve two-thirds of their sentence and those who should serve five-sixths of their sentence.
The Advisory Board performed its functions with the utmost care and conscientiousness. It had before it information about home background, work record, criminal history and personality of the candidates for earlier release. But unfortunately it worked out that the Advisory Board might just as well not have looked at any of this information, because their results were no better than random. If they had simply tossed up to see who should serve two-thirds of their sentence and who should serve five-sixths, they would have achieved results just as good as they achieved by this extremely careful and conscientious work. But it was subsequently shown by the Home Office Research Unit that this was because they had not adequately organised the information available to them. By organising that information, and carefully noting what factors in the applicants' history proved in practice to be of good prognostic value, and what factors of poor prognostic value, it would have been possible greatly to improve the results.
In the case of preventive detainees, the results were not going to be very good anyway. There was always, I regret to say, more than a 50 per cent, chance of a reconviction. But whereas the Advisory Board failed to distinguish entirely between the better risks and the less good risks, the Home Office Research Unit was able to grade the risks so that they could indicate in which cases there was a 60 per cent, chance that a man might be re-convicted, and others in which there was a 90 per cent, chance that he would be re-convicted. This is not, of course, anything approaching certainty, but it is a considerable advance, and it is information which is absolutely vital if the Licensing Board is going to do its job effectively.
It has been said, I think by a distinguished American sociologist, that mankind has thrown away most of its experience for lack of a competent system of recording. This is particularly true of our penal system. There is no reason why it should be or need be any longer true,

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and the success of imaginative measures like the present Bill will very largely depend upon our putting a stop to this waste of experience. My Lords, some of the proposals I have made I know are extremely controversial and radical. In the course of my life I have supported a number of highly controversial and radical measures. I have lived long enough to see many of them put into effect, and many of them also now regarded as absolute commonplace.
6.18 p.m.
THE LORD BISHOP OF EXETER: My Lords, I shall not detain your Lordships very long. I only wish to express a welcome for this Bill in general and in principle from these Benches, and to utter a particular word of welcome with regard to three of its provisions. The first is the belated abolition of preventive detention. Preventive detention failed, first, because the sentence came to be given to the wrong type of prisoner; that is to say, to the feckless, petty criminal, and not, as originally intended, to persistent serious offenders. It is greatly to be hoped that the now proposed extended sentences will not suffer the same fate. I believe that the conditions in the Bill necessary to qualify for extended sentence will in fact prevent this happening.
The second reason why preventive detention failed was because the prisoners concerned were totally unable to understand the principles upon which the Board were acting. The prisoners were bewildered and confused. They could not discover what it was they were supposed to do in order to obtain their earlier release. They could not understand why some persons were released whom the prisoners had every reason to suppose would not make a success of life in the world, and so there grew up a deep, bewildered sense of injustice. I think we must be extremely careful to avoid this happening again under the parole system, about which I will say a word in a moment.
The second Part of the Bill which I welcome very greatly is the forthright attack on the short prison sentence, and the determination to make much greater use of punishment by fine and use of the suspended sentence. I hope that this will drastically reduce the population of the prisons. I entirely agree with what
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noble Lords have said, that the short prison sentence is quite useless—indeed, worse than useless: it is bad because it tends not to reform but positively to corrupt. Yet there is still, I think, something to be said for the short prison sentence, though I do not often say it because I am the only person who happens to take this view. In these days of affluence, to lose one's liberty and at the same time to be deprived of one's comfort is a daunting prospect. I am a great reader of the novels of Mr. P. G. Wodehouse, and the things that Mr. Wodehouse's young men feared most of all was the prospect of "doing seven days" without the option.
If, therefore, this attack on short sentences of imprisonment were to go extremely well, and in consequence a wing or two wings in some of our local prisons became unoccupied, I should in those circumstances seek to fill them with what I might call the non-criminal offenders; that is to say, those who commit offences against the law to which no social stigma attaches. Many classes of motor and traffic offenders, persistent cheats in relation to television licences, gross offenders against the anti-litter laws, people who sit down on pavements and wait for the police to remove them and obstruct other citizens going about their lawful business—to these non-criminal offenders I think that seven or twenty days without the option in our unmodernised and, to say the least of it, rather sordid local prisons would prove a powerful deterrent; more powerful than even a severe fine.
I come now to the proposed licensing system. Ever since this Bill was introduced into another place this question of parole has been a major topic of conversation among the prisoners. It has inevitably raised great hopes and, as inevitably, it will cause great disappointment, and maybe resentment, among those whose applications are refused. It is essential that any machinery created to operate this release on licence should be understood by the prisoners, and that the prisoners on every occasion should be informed of the reasons why they have been turned down. It is most likely that the prisoner will not accept the reasons for his having been turned down, but he must be given them; and he must be given the real reasons, however damaging to his self-respect.

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It is essential, I think, that throughout the time of his sentence there should be a regular discussion between each prisoner and one member of the Prison Service about his progress, or lack of progress, as the case may be, so that every prisoner may know that his case is under continuous review, however remote his chances of being released on licence may be. I believe that it would be unwise to attach too great hopes to the success of this parole system. As the noble Baroness, Lady Wootton of Abinger, has said, to some extent it is bound to be a hit-and-miss affair. However much one studies the records and listens to the opinions of other people, in the end the decision is bound to have a large element of guess-work in it.
I do not believe that the scheme could possibly work without the acceptance of the proposed local review committees which, under Clause 48(5), the Secretary of State is empowered to create. I was glad to hear from the noble Lord, Lord Stonham, that apparently it is the intention of the Secretary of State to establish a local review committee in connection with every local and general prison. I think that this is essential. Each prisoner must have the opportunity of being interviewed, either by the committee as a whole or at least by one member of it. Then the composition of the committee must include somebody to represent the general public—say a magistrate—and someone to represent the local probation service, because it is on the Probation Service that the responsibility for looking after the man released on licence will generally devolve. I would say that there should also be on the committee a member of the Prison Service. I remember vividly, when I sat in on some of the sittings of the board under the preventive detention system, when the governor or assistant governor was present only as an assessor, that the committee did not seem to me to pay sufficient attention to the views expressed by the governor at particular proceedings.
As for the Central Prison Licensing Board, it seems to me that the composition proposed in Schedule 2 is probably right. I am certain that on it there must be a member of the Judiciary or someone who has held high legal office. I do not think he ought to be chairman, because that
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would have an adverse effect upon the prisoners, who would feel that they were, so to speak, being tried all over again. But the other classes represented in the Schedule are probably right. I am certain that the chairman will have to be whole-time and paid, and the numbers of the different categories must be large enough to enable the Board to meet if not weekly at least twice a month, because it is essential that the interval between the prisoner making his application and his hearing of the result must be reduced to the barest minimum. If the procedure gets involved in delays in the law and delays in Whitehall, it will be extremely cruel, because the man waiting to hear the result of his application—
LORD STONHAM: My Lords, may I interrupt the right reverend Prelate? It is not intended that prisoners should make an application or that there should be need for an application. When a man has been twelve months in prison and has served one-third of his sentence his case is automatically considered.
THE LORD BISHOP OF EXETER: Does he know that it is being automatically considered?
LORD STONHAM: Probably. Every prisoner will know that it will be automatically considered.
THE LORD BISHOP OF EXETER: There fore he knows that it is now before whatever Board it is, and he waits for the answer. All I am pleading for is that the machinery should be made as simple and as expeditious as possible, because the man will be in a state of suspense, and that has an effect upon the whole wing of the prison.
6.30 p.m.
VISCOUNT AMORY: My Lords, the Bill which we are considering to-day is, I think many of us feel, somewhat of a mixed grill, and, as I find with most mixed grills, there are some components I like much better than others. The best ones seem to me to be wholly in line with the policies of my noble friend Lord Brooke of Cumnor when he was Home Secretary, and I am sure that my noble friend will go down in history as a very enlightened Home Secretary. I do not propose to range over the whole field, noble Lords will be relieved to

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hear. In fact, as regards the very important proposals in Part I, I should be wholly unqualified either to criticise or to offer alternative proposals. I have had no experience, either as a lawyer or as a magistrate, though it has been said that if only those who were qualified spoke, the world would be filled with a profound silence. I would say of Part I only that I found the speeches which have been made by noble and learned Lords against the majority verdict extremely persuasive to a layman like myself.
I should like to make a few observations on the treatment of offenders, being impressions which as a layman I formed during my eighteen months' experience as Chairman of the now defunct Royal Commission on the Penal System. I am, of course, speaking only for myself, and not for my then colleagues. I will not bother your Lordships with the reasons why the Royal Commission folded up. I suppose one of the main reasons was the doubt felt by the minority of members as to the feasibility of dealing effectively with the very wide terms of reference before us, particularly in view of the Government's having rather jumped the gun—or perhaps I ought to say, jumped my gun—with the issue of two White Papers and the question of the Commission's making a report in time to fit in with the legislative programme of the Government.
Speaking for myself, I feel that it was a pity that the Royal Commission was not encouraged to proceed with its task. I would acknowledge, in passing, that the noble Lord, Lord Stow Hill, did give us encouragement in that direction. I believe that the Commission could have produced a useful Report which, after considering the broad concepts and purposes of the penal system, could have laid down guide lines for reforms and developments on which detailed changes could be based. It is not the first time I have had a horse shot under me. I was for eighteen months a Minister in charge of one Department, and, no doubt as an alternative to getting rid of me as a Minister my Department was eliminated. It looks as if after about eighteen months my colleagues find me intolerable.
I should like to make one or two obvious remarks on the objects of the penal system and then mention some directions
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which I think reforms should take. The first overriding object, I suppose, of the penal system is the protection of the public from violence and injustice resulting from breaches of the law of the land. Two provisos are that any punishment or treatment meted out must not do violence to the moral consciousness of normal, decent people and as little harm as possible to human dignity. There are broadly three ways in which the penal system operates: deterrence; incarceration—that is to say, removing the offender from circulation—and, lastly, reform or rehabilitation. Punishment, unlike retribution or vengeance, is legitimate as a deterrent, subject to the provisos I have mentioned. In fact, in almost any operation of the penal system some element of punishment is bound to be involved. But I think we all agree that the effects of punishment must be carefully watched. It is a blunt instrument and its effects can be quite counter-productive, and by itself it is seldom effective.
As regards deterrence, I found during the time I was on the Royal Commission that research could tell us very little, objectively or statistically, about the effects of various deterrents. The reason, obviously, is that one is dealing with a subjective matter, and what deters one has little influence on another. One view which I thought prevailed quite clearly was that the most effective deterrent of all is the certainty or extreme likelihood of detection. One can be sure that most of the obvious deterrents—the fear of exposure, the moral disapprobation of one's fellow citizens, conviction, loss of liberty and monetary penalties do have considerable deterrent effect, but how much absolutely or relatively it seems very hard indeed to measure.
I think we should all agree that incarceration is unavoidable when the protection of the public requires the offender to be kept out of circulation and possibly for some forms of treatment. But imprisonment, by itself, is not only negative but, by removing from the offender the exercise of self-discipline, is apt to conflict disastrously with the object of reform and can be wholly destructive to the sense of responsibility. In going round prisons—and as a layman I had never done so before—I found that the worst

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feature was not the severity or the hardship of the regime—I found very little evidence of that—but, on the contrary, the rather soul-destroying inertia and lack of challenge involved in the wholly artiticial of the inmates. The conclusion to which I think one must come is that complete restriction of liberty must be a treatment of last resort, and only those who must be should be kept in prison under conditions of full restriction of liberty. There is plenty of evidence today that our overcrowded prisons are cluttered up with considerable numbers of offenders who need not be there. That has been the theme of most speakers today. I am entirely in favour of those provisions of this Bill which recognise this and seek alternative forms of treatment.
What categories do not appear to need incarceration in the security of a prison? Examples have been quoted to-day and I can only summarise some of them: alcoholics and debtors, most of those sentenced for short terms and most petty persistent offenders and inadequates. Surely the aim must be to get these out of closed prisons whenever possible and to devise alternative forms of treatment which would allow them to continue to earn their living, and, as far as possible, fulfil their normal responsibilities. In the case of the persistent offender and other inadequates it may well be that they should earn their living under adequate supervision. I very much welcome the provision in Clause 15 which is aimed at reducing the number of accused who are remanded in custody.
It is clear that much thought and experimentation must be given to the problem of devising alternative forms of punishment and treatment which involve less than full restriction of liberty. Here I find myself convinced that the principle of financial restitution could, with advantage, be brought back prominently into our penal system. In these days of the so-called affluent society, hire-purchase commitments, often over relatively long periods, are part of everyday life. The exploitation of the principle of financial restitution, accompanied no doubt by a power of attachment of earnings of all kinds, would often open the way to forms of deterrents and punishments which would enable certain types of offenders to remain in circulation as earning mem
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bers of society, fulfilling their family responsibilities. In many cases, too, fines should be far higher, and one is very glad to see the proposals in this Bill for raising them. Whether they go far enough is another matter.
I now come to the joint questions of greater flexibility in sentencing and release on licence. It seems to me that if we take seriously that the object of treatment should be to turn the offender into a law-abiding and responsible citizen, then we must accept three conclusions. The first is that the treatment should be progressive—that is to say, graduated steps leading progressively back to full liberty—secondly, that the form of treatment must be tailored to the needs of the individual; and, thirdly, that these considerations will often involve modification of the original sentence in the light of the response of the individual to the treatment he has had. Therefore, one concludes that there must be a possibility of a greater element of indeterminacy in the original sentence. In that regard, some form of release or partial release under licence is highly desirable.
As regards the greater flexibility in sentencing, there are various alternatives, and the one that is incorporated in this Bill is the suspended sentence. I should have thought that was excellent, though I find myself in agreement with my noble and learned friend Lord Dilhorne in doubting whether it is right that it should be made mandatory. I should much prefer that it was not mandatory. But I welcome the suspended sentence, and I think other forms of indeterminacy in sentence should be investigated further and considered.
As regards release on licence, this concept is wholly in line with the principle of the progressive treatment of the individual. It is one step in a graduated series of steps, but it is a very important one involving the question of liberty or its reverse. The present system of fixed remission for good conduct seems neither wholly satisfactory nor sufficient by itself. Therefore, I find myself entirely in favour of the extension of the system of release on licence under supervision.
I am glad that there is to be a Licensing Board. Possibly even regional panels will be required, though I do not know the

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numbers which would be involved. But I should have liked it to be even more independent of the administrative authority—the Home Secretary—than it is. Such a Board would no doubt reach its decisions after giving full weight to the recommendations of the prison authorities, who have direct knowledge and experience of the offender's conduct, character and reaction to treatment. But I think the administrative authority which is responsible for the prisoner's supervision and incarceration should not also he responsible for the decision involving his release or otherwise.
If a really serious attempt is to be made to restrict imprisonment to those cases which positively require retention behind walls, then it is clear that great efforts must be made to extend the various forms of open institutions, hostels, sheltered employment and freedom under supervision. These all call for a high degree of co-operation with the public, who must understand the difference between offenders who are a serious menace to society, and those who are only a relatively minor inconvenience. If it is found possible, as I should have thought it was, that the result of policies of this kind might be to get out of prison about a third of those who are at present there, and to keep them fulfilling their normal responsibilities under an appropriate degree of supervision, then that would be a magnificent bit of progress to achieve. Then, as a byproduct—though, as the noble Lord, Lord Stonham, said, not the main reason for doing this—it would give a much better chance of dealing effectively with the smaller number who must, for one reason or another, be kept in conditions of high security; and probably many of them should be kept in conditions of greater security than is possible to-day.
I said that I would not range over the whole field though it is terribly tempting to do so, and I ask your Lordships' indulgence if I have waffled a bit freely already. I welcome the Bill with the exceptions which I have mentioned, as edging generally in the right direction. It is not an inspiring document in itself, but if one adds some of the bits and pieces together the general theme can be identified, and it is one which I should have thought we should wish to support.
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It may be that in this complex field, in which the results of research do not yet offer much positive guidance, it is necessary to proceed by a series of cautious steps in the light of day-to-day experience. I think we must be humble enough to realise that we do not yet know enough about the psychology of human beings to be dogmatic in our judgments about what deterrents are effective and what forms of treatment are most productive.
I remember hearing a lecture by a very distinguished penologist who ended with these words:
"In the result, success often seems to depend more upon Mother Nature and Father Time than on anything in particular we have done."
That is a sobering thought, and there may be some truth in it. But I do not wish that remark to be interpreted as meaning that attempts to devise a more effective penal system are doomed to failure. I feel exactly the contrary. I believe that we should feel encouraged, and we must not let up in our efforts to work out a system in which deterrents and treatments can be devised under which the unnatural and destructive conditions of closed prisons are reserved only for those who must be kept there for the protection of the public. So far as this Bill contributes to that end, it is to be applauded. It seems to me a kind of ostrich-size curate's egg in which the good parts clearly outnumber the dubious parts; and I, for one, welcome it very much.
6.49 p.m.
LORD SANDFORD: My Lords, I have been told by the usual channels that this is a convenient moment for me to speak, and I hope that is so. In a House as richly furnished with lawyers as ours is, particularly to-day, I want to keep well clear of the courts and to deal mainly and briefly with Part III of this Bill—"Treatment of Offenders"—and to some extent to follow my noble friend who has just sat down. Before I do so, I should like to deplore with others the fact that the Royal Commission over which my noble friend presided has been dissolved. There is a good deal to be said for proceeding by practical expedients, but I feel that in this particular field we need to proceed also by the evolution of longterm policy rooted in soundly-based doctrine—and this is what we lack.

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However, I start my remarks with the view that I believe is generally shared: that the main object in the treatment of offenders is to reform them so that at the end of the treatment they do not offend again. I know that some feel that we should look to the treatment to deter. Perhaps sometimes it can, perhaps sometimes it does; but in general—and no one has argued this more cogently than the noble and learned Lord who is now the Lord Chancellor in the debate on Penal Reform which he initiated about three years ago in your Lordships' House—it is a high and rising conviction rate, leading to a real fear of getting caught, that deters more than the treatment which would follow if there was a conviction. So in general, I submit, we can look to the police and to the courts to deter, to the Prison Service and the Probation Service to reform.
There are many—and I am among them—who feel that the law-abiding citizens of this country already suffer more than enough inconvenience, loss, damage, injury and even torture at the hands of our worse criminals, and we therefore do not want to do anything which adds to the hazards from which they already suffer. There is no reason why our people should put up with any more injury and loss than they already do. They indeed deserve the fullest protection that the law can give from those who menace them in this way. But there really is no need to keep 35,000 people incarcerated in prison to provide this protection for the public. That protection would be provided, and I hope will be provided, by locking up quite small numbers of really dangerous prisoners in properly secure prisons.
This is the point, of course, to which the noble Earl, Lord Mountbatten of Burma, addressed himself and reported upon in Cmnd. 3175. He mentioned that accommodation for 120 people only would be sufficient to cater for the really dangerous criminals; and I think that earlier on the Association of Prison Officers had given it as their view that only 5 per cent. of the present prison population—something like 2,000 people—needed really high-security prisons. If that security is provided for really dangerous criminals, then much greater liberties can be taken with the rest, with little or no hazard to the public. In any case, the public will be sub-
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jected to some hazard as prisoners are discharged at the end of their terms, as they will be in any case, whether they are judged to have been reformed or not.
But even when the relatively small number of potentially-dangerous criminals are safely locked up out of the way, far too little that is effective and positive in the way of reform can be done in our prisons in the overcrowded and obsolescent state they are in to-day. I would entirely agree with the right reverend Prelate in his suggestion that in their present state they would indeed prove a considerable deterrent to the class of criminal that he cited, but as institutions in which positive reform can be undertaken they are failing badly and inevitably, even with the best will in the world on the part of the Prison Service. The words of the Home Secretary during the Second Reading of this Bill in another place on December 12, 1966, at column 64, are therefore fully understandable. He said:
"The main range of the penal provisions of the Bill revolves around the single theme, that of keeping out of prison those who need not be there"—
and, indeed, some of its clauses certainly do that.
The new powers the Home Secretary proposes to give to the courts in Part II to deal with offenders—the much higher fines, the restrictions that he lays upon courts in imposing prison sentences in certain cases—all have that effect; but the provisions of Part III, on which there has been considerable debate this afternoon, do not have the effect of keeping offenders out of prison. The clauses relating to release on licence take out of prison some people who have already been there for a year or more; and as we have already found, they raise very tricky issues as to who is to come out, who is to go back in, and how the whole system is to be operated.
But worse still, in my view, the operation of this system will place very heavy new burdens upon the Probation Service, which at its present strength of around 2,500 and at its present recruiting rate, is none too well placed to undertake them. I hope that when he comes to wind up for the Government the noble and learned Lord the Lord Chancellor will be able to reassure us that the Probation Service can

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in fact handle the burden that is to be laid upon them; or, if they cannot, that the Home Secretary will not make more than slight use of this provision. If it is the Home Secretary's desire to keep out of prison people who need not be there, and if the Probation Service has the resources to help in this, surely the better policy would be to provide further alternative places of custody, as my noble friend Lord Amory has just recommended, particularly more hostels and institutions of that kind, and to encourage courts to make more use of them rather than sending people to prison.
In order to come to a judgment on this I think we want to know much more than the noble Lord, Lord Stonham, has so far told us about the Government's plans as to probation hostels. How many do they propose to provide? How many have they in fact started? What grants are they currently making available to the voluntary bodies who are prepared to establish them? What are they doing about the difficult problem of staffing them, and so on? I do not think that the courts would need very much encouragement to use probation hostels if more were available. Most magistrates to whom I have spoken about this would welcome the opportunity of putting offenders on probation with a condition of residence in a probation hostel if they thought that there was the slightest chance of it being practical to implement such a sentence. In fact, I believe that the only effect at present of awarding such a sentence is to involve a wretched probation officer in ringing round all the 40 probation hostels in the country, only to find that none of them has any room for the offender who has been awarded such a sentence.
LORD STONHAM: My Lords, may I interrupt the noble Lord? I think he is under something of a misapprehension, and it may be that he is mixing up aftercare hostels with probation hostels for adults. There are no adult probation hostels in the country at the moment at all. We propose to provide them. The only probation hostels as such which are now available are those for young persons.
LORD SANDFORD: I was aware of that fact, and also of the fact that it was
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the Government's intention to provide probation hostels for adults. I was hoping that we would hear more about this to-day, because all these proposals for release on licence and for the provision of probation hostels involve the Probation Service in new and additional burdens. Surely the time has come to increase substantially the provision of institutions of the probation hostel type, and to plan the provision around the country on a more rational and regional basis. The plans that have been outlined in the Home Office Circular 46/67 relating to aftercare hostels are a good indication of the way in which this could be done. It would be interesting to know whether it is also going to be done in the case of probation hostels for young offenders and probation hostels for adults, when these are provided, and at the same time to make more sensible arrangements for getting these hostels properly used.
In the Morrison Report of 1962, Cmnd. 1800, I do not believe that a study of sufficient depth was made of the potential demand for this sort of penal institution. In any case, the time has come to review it. Everyone agrees that a major rebuilding effort is involved before we can get our stock of penal institutions right. Second only to the provision of top-security prisons, with the protection of the public in mind, I would put the provision of probation hostels and similar institutions with the reformation of the offender in mind. The cost of providing custodial accommodation by building hostels will not be much greater than that of building larger penal institutions, and it may be less. But the cost of running them will certainly be considerably less. Such figures as I have been able to obtain from the latest reports of the Probation and Prison Services indicate that offenders on probation with a condition of residence in a probation hostel cost the taxpayer something like £5 per head per week. Prisoners cost the taxpayer something like £13 per head per week. I do not think there is any question at all about where the more positive reform takes place.
I mention all this now on the Second Reading of the Bill because I fear that in his zeal—his very natural zeal—to try to reduce the prison population by means of "release under licence", the Home Secretary will use up manpower in the

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Probation Service and voluntary effort available in the community in looking after ex-prisoners whose reform is difficult and doubtful, whereas were more probation hostels to be provided, these same resources could be used far more effectively to deal with offenders whose treatment is easier, and where the chances of reform are far higher. Of course, one would like to be able to deal effectively with all classes of offenders. But this is simply not practicable at present. The Probation Service is short-handed and already overloaded; the Prison Service is short of staff and the prisons overcrowded.
So what are we to do? Do we try everything and do none of it particularly well? Or do we pick out some priorities and do one or a few things really adequately? I say that we should concentrate on the younger criminals, those of under and around 21 and try to check them early in their criminal careers. Whenever it is safe and suitable—and I am not recommending any of this for dangerous criminals or those who use violence—let us put them on probation in probation hostels under that flexible degree of custody and supervision which this system provides. I believe it provides a good chance of reform for far more offenders than are at present able to use the paltry 700 places that are available.
Hostels are far more suitable than prison for the prisoners whose offences arise from taking drugs or getting drunk. It enables offenders to remain in employment; it requires them to contribute to their own maintenance, and it could, if we had the necessary legislation, require them to contribute to the restitution and reparation for any loss they have caused. It costs the taxpayer less than half as much as it costs to send a man to prison; it keeps the offender out of harm's way and away from his criminal associates; and yet it does not impede any useful and helpful support that the offender can receive from his family. Furthermore, it eases the strain on the Prison Service, and in this way meets the desires of the Home Secretary by reducing the flow of offenders into prison. I believe that this is the policy which, far more than "release on licence", will not only make the work of the hard-pressed prison officers easier and more effective, but also the policy which gives the equally hard-
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pressed probation officers the best possible chance of turning the hearts of the disobedient to the wisdom of the just.
7.5 p.m.
LORD DENNING: My Lords, there is a great deal in this Bill that is excellent. I will not take up your Lordships' time by going through it in detail, except to say how welcome are the provisions that written statements should be admissible, that the defence should give notice of an alibi, that there should be parole boards, and the like. But I would raise two matters which are matters of high constitutional principle. I will first refer to the question of majority verdicts. In this country, for over 600 years juries have had to be unanimous in their verdicts. That principle is fundamental to our constitution and it has been taken by settlers from this country overseas to the United States, to Canada, to Australia, to New Zealand and other parts of the world. Nowhere has that principle been whittled away.
It is now suggested that it should be taken away here, and I ask myself: What is the reasoning behind the principle? I believe it is founded in our fundamental rule that no man is to be found guilty unless he is proved so beyond reasonable doubt. If one juror—or even two—has doubts, doubts that cannot be resolved, then it is right that the accused should be found not guilty. For what a great question is posed if the verdict be not unanimous but of a ten—two majority! Is there not a question whether the accused is guilty? Or if the accused were acquitted by a ten to two verdict is it not questionable whether he may after all, have been guilty?
In the days before capital punishment was abolished no one would have entertained this proposal for one moment. No-one would have thought it safe to hang a man on a verdict of ten to two, or of eleven to one. And the introduction of this suggestion can be traced directly back to the abolition of capital punishment. But the reason for the principle of unanimity is not in its application to capital punishment. The reason is that no man should be convicted unless he is proved guilty. Let me remind your Lordships how it started in 1367, when the Judges of Assize went to Northampton, 600 years ago this year. In a trial then, one juryman stood out: the eleven others were in

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favour of convicting. The Judge told the dissenting juror that he would commit him to prison unless he agreed with the eleven; the juror said: "I would rather die in prison that give a verdict against my conscience." The Judge accepted the verdict of the majority, of the eleven, and the case was brought before the King's Judges here in London. All the Judges held that the verdict of the eleven was no verdict, because no man was bound to give a verdict against his conscience.
My Lords, six hundred years have passed and never has that principle been challenged till now. I have been around the circuits of England. All the people know it. Only once have I been asked by a jury: "Should we be unanimous?" Everybody knows it. Are we to depart from it now? What is the evidence for doing so? As I have said, it is only since capital punishment was abolished that this change has been suggested. When the noble and learned Lord, Lord Morris of Borth-y-Gest, presided over his Committee on the jury system, the terms of reference were almost wide enough to include this matter, certainly to embrace it on the fringes. No one suggested that on the evidence a majority verdict should be accepted. Indeed, the figures given in Lord Morris of Borth-y-Gest's Report in 1965 showed that the number of disagreements were minimal.
And how were these cases dealt with? The problem to-day is said to be the danger of bribery and corruption or, indeed, the occasional "crank". They were dealt with in the old days quite simply: the jury were kept together without food or drink until they were agreed. They were kept even through the night; indeed, right up until this century they were kept together from the beginning of a case to the end so that no one could tamper with them. Only in this century has the rule been mitigated. Even until the 1940s, or the 1930s, in a murder case they were always kept in a hotel and kept together, and when the occasional disagreement occurred there could be, and was, and is, a re-trial. My Lords, that is how the matter has been dealt with in the past. I agree that nowadays we could not expect juries to be kept together and not to go home at night. Only in the most exceptional circumstances, would that arise. Surely the right way to deal
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with it is not to take away our old principle but to deal with the briber or corrupter, or the person on the jury who is bribed or corrupted, as we have machinery to do—although it may be difficult to find out about the bribery or corruption.
My Lords, as nothing was suggested before 1966, how has it all come about? I am afraid that my noble and learned friend the Lord Chief Justice was under a misapprehension when he said, "I can safely say that all judges would be in favour of majority verdicts". In March of this year he consulted 37 Queen's Bench Judges, including himself, and the Home Secretary gave us these figures. Of those 37 Judges, 25 were wholly in favour of majority verdicts: two had not sufficient experience to be able to express a real view, and eight were wholly against them.
VISCOUNT DILHORNE: My Lords, that was a majority verdict.
LORD DENNING: My Lords, they were against the majority verdict.
VISCOUNT DILHORNE: That was a majority verdict against the noble and learned Lord, Lord Denning.
LORD DENNING: The eight were against majority verdicts. I could tell your Lordships who would be with me in thinking that we ought to keep our principle of unanimous verdicts—some of the wisest and most experienced of the judges. I do not include, of course, those who speak with me or are with me in this House. But there are other members of the legal profession who have dealings with juries. The 27 Queen's Bench Judges are not the sole repository of wisdom and experience. There are recorders, chairmen of quarter sessions, Judges at the Central Criminal Court and the County of London Sessions and the like. But this is not a matter to be dealt with by a tally of heads of Judges to see whether or not they think it right that we should have majority verdicts. This is a far more important step, and one that should not be entered upon except after due inquiry and research—and that is what we have not had. Before we reverse a principle which has existed for 600 years we should have statistics and evidence. I do not wish to say more about this Part of the Bill.

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There is one other Part, also a matter of principle, about which one can feel some anxiety; that is the Part relating to proceedings in open court before magistrates. Hitherto, for a hundred years the Press has been able to attend magistrates' courts and to report their proceedings. Every court of law is open to every subject of the Queen. It is one of the safeguards of justice in our system that courts should be open, available to all: not only to those who would repeat outside, by word of mouth, what happened, but also to the newspapers so that they can report what happened. It is suggested that there is a danger that a fair trial could not be had, or is not likely to be had, if preliminary proceedings, committal proceedings, are reported. My Lords, my experience is that juries go by the evidence in the case before them. Even in the case of Doctor Bodkin Adams, he was acquitted.
The proposal for majority verdicts is another great change, but there is not the same criticism that I could make of it. Lord Tucker's very experienced and good Committee reported wholly in favour of it, so there are not such strong grounds for any criticism that I could make. Nevertheless, I would urge that a provision for majority verdicts should not be included in the middle of a Bill dealing with criminal procedure. We ought not to alter such a high constitutional principle—at least not until there has been further and due inquiry.
7.16 p.m.
LORD PARKER OF WADDINGTON: My Lords, I rise to join with others in welcoming this Bill. It is often said that lawyers, and particularly judges, are reactionary creatures; they do not welcome any change at all. It has even been said that the reason there is so little reform is that there are so many lawyers in another place. But this Bill contains provision after provision which is welcomed, I think, by all those who have concern for the administration of criminal justice. Numbers of provisions have been referred to, and there are many more which are small in themselves but which are most welcome—power to couple probation with disqualification for a driving offence; the extension of conditional discharge from twelve months to three years; the ability to con-
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vert a probation order after a period into an order of conditional discharge. These are matters, one may say, of detail, but of the greatest importance to those who are concerned with the sentencing and treatment of offenders.
I think there is hardly a topic in this Bill of which I do not wholly approve. It is only when one comes to the details and the machinery that I think there is room for improvement which may be made in your Lordships' House. Those who have taken part in this debate have, one after another, dealt almost wholly with majority verdicts. That is clearly a matter of great controversy; it is bound to be debated at some length at a later stage. For my part, I propose to adduce no arguments on it at this stage, but merely to say that I am wholly in favour of majority verdicts, not only from the standpoint of a judge but as a matter of principle.
There are one or two matters which I think will have to be looked into with some care. The first arises in committal proceedings. I think that everyone welcomes Clauses 1 and 2 of the Bill, in that their provisions will relieve hard-pressed magistrates of a very considerable burden. A great deal of time and expense will be saved. But when it comes to Clause 3, dealing with restrictions on reporting, then, like my noble and learned friend Lord Denning, I do not feel that the case is made out for any restriction upon the Press. It seems to me that in those cases (and we all hope there will be few) where the defence opts for a full hearing with oral evidence, they ought to take the full publicity which exists at the moment. It has always been a cardinal principle that justice must be done, and can best he done, in the full glare of publicity. Only the paramount cause of an unfair trial would be a matter for curbing publicity.
With all respect to my noble and learned friend Lord Tucker, I would point out that his Report itself says that no one can say—in other words, that the case is not proved—that juries are ever influenced by what they have read. I think that to-day juries are perfectly capable of accepting a strong direction from a judge to the effect that it is no good pretending that they have not read all about it, but they must put it out of their minds and decide the case on

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the evidence presented in court; and so far as anybody can tell, no judge has had any difficulty in getting juries to adhere to that direction. Again, that seems to me to be a matter which will form the subject of considerable debate.
I welcome the provision to encourage magistrates to grant bail rather than remand in custody, and I most sincerely welcome Clauses 16 and 17. Heretofore it has been idle to make a condition or extract an undertaking, because there is no way of enforcing it. One can purport to make a condition of bail that the accused is not to leave the country; but if next day a policeman sees him getting into an aeroplane on the South Coast to go to France, there is no power whatever to restrain him. Now, thanks to Clause 17, if that becomes law, such a condition can be enforced. As a matter of detail, I am a little worried whether Clause 15(5) is wide enough. I think it needs to be looked at again with some care and in particular paragraph (a), where a magistrates' court is not bound to put a person on bail if he is subject to imprisonment for a term of not less than six months and has been previously sentenced to imprisonment or borstal training. It seems to me clear that "detention centre" ought to be added. Otherwise, we get the extraordinary position that a youth who has been sent to a detention centre for six months need not be put on bail, whereas one who has committed exactly the same offence, but because no vacancy can be found has been sentenced to six months' imprisonment, cannot be put on bail. It seems to me that detention centre ought to be added in that exception.
Turning to suspended sentences, with the power to put on probation and the power now to give a conditional discharge for three years, I very much doubt whether there is any room for the suspended sentence. It is said that it is more effective because the sentence is stated, but I think that most judges—certainly I have always done so—in putting a man on conditional discharge say that they have been minded to give him twelve months imprisonment but on thinking it over propose to give him conditional discharge. The judge explains what that is and says that if the man commits another offence he will be brought back
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and punished for this one, and he has heard the sort of sentence the judge has in mind. It is rather ironic that only this morning I was in touch with one Province of Canada where they have suspended sentences and they are thinking of abolishing them. They were amazed when I told them that there was to be a debate in your Lordships' House this afternoon about whether we should have that system. But I welcome any weapon that the courts will have at their disposal in dealing with crime, even if that weapon is never used. Therefore I do not object to this provision as a matter of principle.
What I do object to, and what has been said already, is the mandatory suspended sentence in subsection (3) of six months or less. Experience has always shown that a mandatory sentence produces great difficulties. It produces great anomalies, as the noble and learned Viscount, Lord Dilhorne, pointed out. He gave the case of what might happen to two brothers, one under 21 and the other over 21. One can think of a number of anomalies and difficulties which would arise. There is a great temptation that some magistrates' courts, faced with the fact that if they exercise their powers they have to give a suspended sentence which is limited to six months, will commit a man to quarter sessions in the hope that he will get nine or twelve months. We should all thoroughly deplore that attitude, but I think it would be inevitable.
My approach to the matter is that magistrates generally will take every conceivable step before sending anybody to prison. No doubt there are black sheep in the family—I do not know—but the many records I see of young men who have a mania for taking and driving away cars, or driving while disqualified or uninsured, show step after step taken by the magistrates before finally, on perhaps the fifth or sixth occasion, they send a man to prison. Now, on the sixth occasion, because they have been so lenient in the past, all they can do is to be lenient again and give a suspended sentence. It worries me. It seems to me that magistrates ought to have a discretion. They are trying not to send people to prison if it can be avoided, and if there are some who tend to act otherwise, then it is a matter of training and educating those magistrates.

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The idea that we should impose upon them a mandatory fixed sentence of this sort is certainly one of which I do not approve. If we are to have a provision for a mandatory suspended sentence, the clause must be looked at in some detail. This sentence need not be given in certain circumstances which are set out in subsection (3), and when we get to paragraph (e) we find it need not be imposed if the accused has been sentenced to imprisonment or borstal. Again it seems to me that "detention centre" ought to be added. But I would go further and say that in this provision there should be an addition to cover dangerous driving, driving while unfit through drink or drugs, and driving while disqualified. These are the prevalent offences with which magistrates are dealing, and in the illustration I gave of the typical record it seems to me that the time has come when they must say that they have taken every other step and now the defendant must go to prison. I should like to see paragraph (e) widened.
Finally on this subject, if a suspended sentence is to be effective it must be as near automatic as possible if an offence is committed. We all agree that it cannot be completely automatic. Subsection (1) of Clause 31 shows quite clearly that this is the intention, because it says:
"and a court shall make an order under paragraph (a) …"—
which provides that the suspended sentence shall take effect subject to the court's opinion on certain matters. That, it seems to me, is the right approach. But I should like to add there, in order to emphasise this point, that if the magistrates are minded to make an order otherwise, they should be compelled to state their reasons in writing. The position is rather like that of the "special reasons" which may enable a driver to escape disqualification for a road traffic offence.
I come, lastly, to the matter which I think will require careful consideration, and that is the machinery for the release of prisoners on licence. The general idea is one that I think we all accept, and certainly many of us have advocated it for a long time. It is a complete anomaly that somebody undergoing a life sentence can be released at any time on licence, subject to supervision, whereas a man sentenced to a fixed term cannot be released on licence, subject to supervision, in that way. His sentence may be remitted as
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an act of the prerogative, but he cannot be let out on licence. Therefore, I thoroughly welcome this provision.
I welcome, also, what has now been incorporated as a Government Amendment; namely, the setting up of an independent Board. I appreciate that this has been done rather at the last moment, and the details have not been thought out. I think it is in this area that your Lordships' House can make a most valuable contribution. If one goes first to the Constitution, the noble and learned Viscount, Lord Dilhorne, referred to the provision in Schedule 2 that one member of the board should be:
"a person who holds or has held judicial office".
I feel strongly that that person ought to be somebody of the standing of a High Court Judge. As a pure matter of constitutional issue, this is a case where the liberty of the subject is very much at stake: not only the liberty of the man who is then being considered but also, inevitably, the liberty of all the others who have not so far been looked at. On that ground alone it seems to me that somebody holding, or having held, high judicial office ought to be on the Board.
Secondly, despite what is sometimes said about High Court Judges, I think that, by and large, the public—and, oddly enough, above all the prisoners; that is undoubted—do have some confidence in the Judges. Although there is not a judicial inquiry in the strict sense, there are quasi-judicial proceedings which will involve the weighing of evidence and matters of that sort. For those reasons, as I say, I feel that somebody of the standing of a High Court Judge should be on the Board. I should add this—although one hates to say it. If this plan is to succeed, there must be confidence between the Judiciary and the Board. In Canada (I do not think it matters my saying this) they are at loggerheads. The Judiciary are saying that the Board let people out when they, the Board, think that the Judges have given too long a sentence, though that is nothing to do with the function of the Board. They also think that the Board are being too lenient. In such circumstances there is a grave danger that judges will double and treble the sentences in order to make certain that the one-third that has to elapse before a man is eligible for

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consideration will be a long period. Nobody would deplore more than myself any tendency towards that; but it is a tendency that has been shown by experience to exist in other countries. I think it only right to say that if one member of the Board were a High Court Judge there would be complete confidence, and any danger of that sort would not exist.
My Lords, I am sorry to occupy so much time, but this question of release is an important one. The powers of this Board, as I understand it, are certainly not as wide as they should be. Incidentally, theirs will be a majority verdict: I do not think there is any doubt about that. But under the clause as at present drafted all the Board are allowed to do is to look at such documents as the Secretary of State chooses to send to them. I cannot think that that is the function of this independent Parole Board. The matter comes to them after going through two sieves—first the local review committee, and finally the Home Office—and all they are being allowed to do under this Bill is to look at such documents as the Home Office send them. It is making a farce of their powers.
Surely they must be entitled, if necessary, as the noble and learned Viscount, Lord Dilhorne, said, to send for the transcript: if the case has been to appeal to get the transcript on appeal; to consult may be the Judge, or somebody who has been concerned in the case. Supposing there is a mental element, cannot they call for the report of the psychiatrist? They have a psychiatrist member on the Board. Cannot he say: "We have this opinion, but I think we ought to see the author of this opinion and cross-examine him"? Under the Bill all they are entitled to do—though I feel that this is only because this matter has not yet been fully thought out—is to look at such documents as the Home Secretary may send them.
Then, when one comes to the local review committee, all that is said in subsection (5) is:
"The Secretary of State may by rules make provision for the establishment and constitution of a local review committee."
Should not the constitution of that committee, like that of the Board, be incorporated in the Bill? We are told that the local review committee will consist
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of the governor, a visiting justice and a probation officer. But, whatever the constitution is to be, ought it not to be set out in the Bill? I think it is this first stage which in many ways is the most important. This machinery is bound to give rise to dissatisfaction in the prisons. The very fact that somebody is being chosen and somebody is not is bound to give rise to dissatisfaction. And that dissatisfaction will be vented on the governor. The prisoners will feel that they are in the hands of the governor. Incidentally (this is only a by-product), I do not like the name "Prison Licensing Board". I am looking at it from the point of view of the prisoner. He will I say: "This is the prison; this is the governor. That is what is behind it all. It is not an independent Parole Board, but a Prison Licensing Board". Be that as it may, I think it is most important that we should decide what the constitution of the local review committee should be.
Finally there is the question whether there ought not to be, if the governor is to be, as it were, in the chair, some method of appeal by a man whose name has not been put forward; maybe a direct appeal to the Home Office, because otherwise there will be the most intense grievance—"Jones has been chosen and I haven't." If one goes to the parole board in other countries, I think one finds that the parole board itself chooses, and every prisoner has access to it. It would be quite impossible in this country, with 4,500 people, as is said, being eligible every year. No board could in fact investigate each of the 4,500 cases. Therefore, there has to be a sieve, or, as is now suggested, the two sieves. But something must be done, I think, to prevent the dissatisfaction of the man who has never surmounted the first hurdle at all, and whose name therefore will never go forward.
Now I may have misunderstood this point, but I think it is a curious feature. Whereas the short title of Part III is:
"Treatment of offenders: Release of prisoners on licence and supervision of prisoners after release"
I do not believe there is any provision in what follows for supervision of the prisoners. There is certainly no provision that it is to be done by probation officers, which I understand it is. That, perhaps, is a matter of detail, but I should like

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to add my very strong conviction that this Part of this Bill, if it becomes law, should not be put into operation until the Home Secretary is quite clear that the strength of the Probation Service is sufficient. It would be lamentable if this attempt failed at the outset because there was insufficient manpower to enable it to have a chance; and from the Probation Service's point of view this is very alarming.
There are 4,500 prisoners eligible every year for consideration. Presumably the probation officer's report will have to be obtained in each one of those cases. He will have to make inquiries as to the home conditions and, if a prisoner was considered for release and released, where he would go. It is a tremendous task. On top of that, those who are in fact released, which may be something like 500 or 750 in the course of the year, must be supervised. As I think probation officers will tell any one of us, it is one thing to supervise a delinquent youth at the parting of the ways, but quite a different thing to supervise a sophisticated, highly dangerous criminal who is now thought to be safe to be at large. It is a formidable task. I think a different technique is involved, and it ought not to be undertaken until the Probation Service is really strong.
LORD STONHAM: My Lords, would the noble and learned Lord allow me to point this out? He himself suggested a figure of 500 to 750. If it was fifty cases per probation officer it would not be a terribly heavy case-load. That would be ten probation officers—not an enormous number compared with the 2,500 we now have in the Service. I would assure him that, so far as these extra burdens are concerned, they have been taken into account with regard to our programme of recruitment and training.
LORD PARKER OF WADDINGTON: My Lords, I thank the noble Lord. I only hope that this is not the proverbial straw, because this unfortunate Service, which performs such admirable work, has more and more, day after day, put upon it. They are dedicated men, and therefore pay, though important, does not matter to them so much, perhaps, as to others. But for myself I wholly fail to see how a substantial addition is to be made to the Probation Service, and
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a constant addition in the sense that wastage will not eliminate it altogether, unless these unfortunate men get more pay. I am afraid I am using this Bill, perhaps, as a platform for that, but I do feel very strongly. A principal probation officer for the whole of the London area, with his enormous administration, gets less than a local authority librarian. It is really ludicrous. The trouble is that the local authorities have their own welfare officers and similar work, and they are depriving the Probation Service by paying so much more for very much the same sort of work. I sincerely hope that something will be done to build up the Probation Service in that way.
My Lords, may I mention lastly one comparatively minor point. Your Lordships will remember that, during the Committee stage (I think it was) of the Murder (Abolition of Death Penalty) Bill, your Lordships' House agreed to a clause which provided that there should be no release of a man from life sentence without consultation with the Lord Chief Justice of the day and the trial Judge if available. I confess that I had in mind then the hope that that task would be taken over ultimately by a parole board. However, perhaps I should be flattered to see that, in Clause 50(1), provision is made in the case of life sentence prisoners for not only the parole board, as I choose to call it, to be consulted, but also the Lord Chief Justice of England and the trial Judge if available. One is flattered to think that our opinions are worth having, but I venture to think that, if they are, that would not be the stage at which to consult them.
In these cases the local review committee will have recommended release, the Home Office have recommended release, they have sent them forward to the parole board, and the parole board have recommended release. It is difficult to think that the opinion of two Judges would be of very much use at that stage. It seems to me that any consultation with the Judges that takes place should be by the Home Office before the matter is remitted to the board; and if the Judges disagreed with the proposal that the Home Secretary desired the name to go forward, then it would go forward with, included in the purpose, the purpose of

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the Judges. My Lords, I am sorry to have taken up so much time. These are largely Committee points, but I feel, certainly in regard to the parole board, that it is useful to mention it at this stage, because I am sure the provisions as to its constitution and powers and the working of it can be vastly improved.
7.48 p.m.
LORD HODSON: My Lords, in welcoming this Bill I should like to add my thanks and congratulations to the noble Lord, Lord Stonham, for the manner in which he has presented it. I propose to confine myself to only one or two matters. I have been privileged to listen to this debate, and I think that everyone who has spoken has made a valuable contribution. The subject in which I am particularly interested—it has interested me for many years—has been touched on but not discussed at great length, and that is the suspended sentence.
I do not think everyone in this House fully appreciates the real point of the suspended sentence. I speak with deference in the presence of the noble Baroness, Lady Wootton of Abinger, who is a very eminent criminologist and no doubt knows more about this topic than I do. But the sursis, the suspended sentence, was introduced in France and Belgium at the end of the last century; and there it meant, and still means, what it says: that you get a sentence which is suspended over your head like the Sword of Damocles, and it descends when the thread is broken by your committing an offence which qualifies you to suffer your fate.
In this country we have not been willing to accept that kind of punishment. Over the years the Magistrates' Association has discussed it, but I think the general consensus of opinion among magistrates has been that they would rather have things left as they are. They prefer to have a discretion at the end of a period, such as is covered by the conditional discharge, to decide what should be done. But the real point of the suspended sentence, if we are to have it all, is that there should be no discretion for anybody to exercise at the end of the period. That makes it a most valuable weapon for what I might describe as the "corrigible" offenders.
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May I take it that many of your Lordships have committed motoring offences in the past, and many more will commit them in the future. You are just the sort of people who are suitable for suspended sentences; but if you offend again, let the sword fall! Let it not be said that there is discretion in somebody before whom you appear that you should not suffer the punishment! We may not like the idea, but I think if we are going to have this principle at all, that is what we ought to have. I think that my noble and learned friend the Lord Chief Justice feels the same difficulty about accepting the suggestion in this Bill. It is really a "wishy-washy" suggestion, if that is not too strong an expression to use. You are adding nothing to the conditional discharge, except this: that you are telling a man in plain words, as the judges normally do to-day, what he ought to have in a suspended sentence; but under this proposal you have got to do it. In the case of a conditional discharge, I suppose that in a general way the man thinks that he has got off, whereas under a suspended sentence he will not be so apt to think that.
I do ask the Government to consider again whether it is really worth while introducing the suspended sentence unless they are prepared to ask the country to accept the Continental sursis with its full force. The idea behind it, I think, is that the suspended sentence is given to the man I have called the "corrigible" offender as a favour to him, as it were. It is a punishment which is inflicted in order—in part at any rate—to satisfy the public desire that punishment should be given where it is deserved, while so far as the offender is concerned the fact that this thing is hanging over his head acts as a deterrent to him in his personal capacity. That is all I want to say about that.
I do not propose to discuss the vexed question of the majority verdict. I am a "majority verdict" man. I have no great qualifications, but I have not been as impressed as the noble Viscount, Lord Amory, apparently was by the somewhat impassioned speeches, as if it were one of the great traditions of our country that we should have a unanimous verdict. I think it has been described as "part of the Constitution". I do not quite see why. We have majority

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decisions by magistrates, and majority decisions in this House, and nobody says it is dreadful that the opinions of the minority should be ignored. I do not see why the same should not apply in crime, especially as in Scotland and in the Colonies the majority verdict has been running for years. In Scotland I suppose it has been running as long as our own system, though I do not speak with any knowledge of that. The time to discuss this point, I suppose, will be at the Committee stage, when no doubt we shall hear my noble and learned friend Lord Denning again. I must say that he shook me, because I had always thought of him before as an ardent reformer. Now he seems to have become a backslider into the past. This seems to be a new face for him altogether and I shall not recognise him so easily.
There is one other matter on which I wish to comment. From my own acquaintance with people in the countryside where I live I know that there is a good deal of talk about shot guns, and I am rather afraid that this idea of licensing shot guns is not going to be particularly good. I am very much averse to putting additional work on the police, as no doubt your Lordships are. There is a tremendous amount of work connected with this, and in any event the burglar does not want the sort of shot gun your Lordships use. What he wants is a sawn-off shot gun, and he will not get a certificate for a shot gun; he will steal yours and saw off the barrel. What good the licensing will do I confess I am in some doubt. With that slightly unimportant matter I will conclude by asking those responsible for the Bill to have another thought about this shot gun business, to see whether it really is worth while making the police spend much more time with pens in their hands instead of being out and about on the beat.
7.58 p.m.
LORD LLOYD OF HAMPSTEAD: My Lords, I am inclined to express general support for the provisions of the Bill. It is, of course, very much a miscellaneous provisions Bill, but for all that this does not preclude its containing much of great value. As the hour is getting late, I propose to confine my remarks to a few words on two topics.
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The first of these is the question of committal proceedings, and this seems to me to be a most valuable and sensible reform. Some time ago the noble and learned Lord, Lord Devlin, said that at present what we have is an elaborate procedure whereby the evidence is transferred from one piece of paper on which it is already recorded, to another piece of paper on which it is recorded again. Although of course we cannot totally abolish committal proceedings because we need them in order that a judicial body should be satisfied that there is a case to go for trial, this can generally be done just as well by a written statement as by oral evidence.
More controversial is the question of reporting these proceedings in the Press. I am in favour of reporting judicial proceedings as a general matter, as no doubt we all are, but I suggest that this is not just a battle of freedom for the Press. Unfortunately, as one knows, certain sections of the Press have a passion for sensationalising everything that seems good to them for that purpose, and I think in some cases this can lead to injustice. Surely, therefore, it should be enough that publicity is given to the actual trial itself. Full Press publicity occasionally has to yield to other considerations, and this is by no means the only example. There is, for instance, the case of juvenile proceedings, and also the case of the Judicial Proceedings Act 1926, so there is nothing extraordinary or novel about this; and I think the case put forward by the Tucker Committee was well made out. This Bill substantially gives effect to that Committee's recommendations.
The only other point about which I wish to say a few words is one which has been very much before your Lordships throughout this debate. I refer to majority verdicts. I shall try to keep my remarks as brief as possible. The first thing I should like to say in this connection is that I entirely echo the sentiments of the noble Baroness, Lady Wootton of Abinger, when she said that what we need here is a great deal more research into the actual function of the jury. Some research of this kind has been carried out in the United States of America, but in this country there has been virtually none at all. I should have thought it was clear that the jury has an essential role in the administration of justice. I would venture to disagree

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with the suggestion of the noble and learned Lord, Lord Denning, that there is any high constitutional principle involved here. So far as the exact conditions under which a jury operates are concerned, these are not sacrosanct; they are matters of technique, whether we have any particular number in a jury or whether it goes by majority or whatever it may be.
But the really cardinal point, surely, is that if we have an institution of a particular kind and it has worked extremely well over a very long period, then there is a heavy onus on those who seek to change it in some important and material particular to make out their case. The case that is put for this far-reaching change—though, as I said, I do not regard it as a matter of constitutional principle, it nevertheless is a far-reaching change—is mainly on the ground that in some instances there has been corruption. Though it is agreed that the number of cases is probably small, the important point is made that this does affect serious criminals. Of course it is not practicable at the present day to hold juries incommunicado as they used to be. But surely the position is that where you have these gentlemen sometimes referred to as "big fish", who are likely to be able to exert themselves to corrupt juries and have the resources to do it, such cases are comparatively easily identifiable, and precautions can be taken to try to prevent these things from happening. It is said that this will involve a great many policemen, and indeed that is clearly so. But even if this measure is passed, you will still have to take precautions, you will still have to be careful to see that juries are not corrupted where there is some reason to fear that this may be so. So the argument that you will have to deploy a lot of police in such matters does not seem to have a great deal of force.
It seems to me that on the other side there are comparatively strong arguments in favour of unanimity. In the first place, unanimity is one of those things which increases public respect for the verdicts of juries; and, secondly, the question of the exact size of the majority is a somewhat arbitrary matter. Indeed, if we are going to proceed on the basis of having majority verdicts, there seems no
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ground in principle for resisting the suggestion of a simple majority. Although I appreciate that it is acceptable in Scotland, which has a rather different tradition in these matters from our own, do not imagine that anyone arguing in favour of majority verdicts in this country would argue in favour of a simple majority to replace our present unanimity.
Lastly, and in many ways perhaps the most important, there is the point that if you introduce majority verdicts to a considerable degree you remove the power of the minority to argue the case the other way. Because of this, it may lead, at any rate in some instances, to wrong convictions. An attempt is made to meet this point in the Bill by the two-hour rule, but this seems to be a very artificial rule and one which may easily bring the whole system into contempt, if juries have to sit around for a couple of hours, when in fact they have decided the case as between 10 and 2, simply because the judge has told them, "I cannot accept that verdict until you have had two hours to deliberate". Some of your Lordships may recollect having seen a rather impressive American film called Twelve Angry Men which turned on this very theme of a single juror being convinced of the innocence of the accused as against the other eleven, and the film dealt with the whole episode in the jury room and the way in which that one man eventually turned the eleven round. That must be a very exceptional situation; nevertheless, it points to the possibility of people being wrongfully convicted, and the avoidance of this is surely a very important feature in our system of justice.
Therefore, on balance, it seems to me that, quite apart from any constitutional principle, the case for a change of this sort has not been made out. I do not regard the question of unanimity as necessarily part of the mythology of the jury, as it has been put in some places. It seems to me, however, that the unanimity principle is on a sensible basis, and it is one which should not lightly be set aside unless there are the most compelling and cogent reasons against it. Accordingly, while in principle I give my warm support to most of what is in this Bill. I remain unconvinced at present regarding the merits of the provisions of Clause 11.
8.6 p.m.
LORD SOPER: My Lords, in adding, even at this late hour, my congratulations to my noble friend on his presentation of the Bill and saying how much I personally welcome it in general terms, I daresay I can also speak for the majority of the Christian organisations in this country. I know I can speak for the British Council of Churches, which, in the opinion of the sponsors of this Bill, has already rendered valuable service and has given them great encouragement. It is a good Bill, and though it has miscellaneous characteristics and I suppose for Free Churchmen and Churchmen generally would not be regarded as a companion volume to Bunyan's Grace Abounding, it would nevertheless be regarded as a first chapter to his other great work Pilgrim's Progress.
There are backgrounds to this Bill which in my judgment ought to be included in any comprehensive survey of its Second Reading. What is the backcloth to this Bill? It is the undoubted increase, large increase, in the number of criminals in prison. It is the suggested increase in criminality generally. Of the first there is no doubt at all—35,000–6,000 more than in 1964. It is a large increase and it is a serious increase. If it represents an increase in criminality generally, this Bill has tremendous significance, or ought to have, in endeavouring to face some of the problems created by this new situation. I do not know whether this is so. But there are more people alive to commit crime, and more crimes they can commit if they are so minded. I have not the information—adequate research has not been undertaken to provide it—to decide whether we are worse than we were; but we are bad enough, in all conscience, and the serious attempt this Bill makes to deal with some of the problems must be welcomed by people of good will and by the Christian Church. I welcome it for the Christian Church for another reason. It has an emphasis on reformation rather than deterrence and so to me is far more consonant with an ultimate Christian principle.
Finally, in this Bill, in general terms, though it has been described as a hotchpotch and a series of miscellaneous items, I can detect, I hope not unfairly, certain broad impulses which are welcome. The first is the impulse, the attempt, in the
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Bill to keep as many people as possible out of prison. I believe that is right, because I have no use for prison at all ultimately, and though obviously it cannot be a matter of immediate practical politics to get rid of the prison system, I believe it is irremediable and my own 15 years' experience as a prison chaplain has confirmed it. I think imprisonment is nasty, brutish, and ought at least to be short. And finally I can find no justification for the principle enshrined in the whole prison ethos. I know this demolition of the whole system of prisons cannot be done in a stroke and ought not to be attempted except by due process, but I welcome most heartily the attempts being made to keep as many people as possible out of prison, in attendance on the time when we can abolish prison altogether and substitute the hostel system or something other to which I may come later on.
With regard to the question of short sentences, I do not believe they have done anybody any good and I believe they have done a lot of people harm. The suspended sentence, with due deference to what seemed to me to be a very reasonable and cogent argument on the part of the noble and learned Viscount, Lord Dilhorne, the increasing of the opportunity of bail, the increasing of fines, all these are good; and I am much impressed by evidence that comes from across the Channel, and therefore may be of increasing interest to us as the days go by.
I want to quote accurately M. Morice, who is the Director of the French Penal Institution—that is as near as I can get to the phrase: it may be slightly different from that. He is interested in, and has drawn up a survey on, the question of suicides in prison. It turns out that every other day somebody tries to commit suicide in a French prison, and as a result of his inquiries he has come to the complete and final conclusion that the vast majority of those who attempt to commit suicide do so either in the first stages of their imprisonment or after a long term of imprisonment.
It seems to me that his argument is the kind of argument which is supported, at least within my own recollection, by the traumatic conditions that belong to short sentences, and the utterly useless waste of time which they provide. Therefore, in general terms, how heartily do I welcome

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the provisions in this Bill which seek to prevent people from getting into this kind of environment, the prison environment, which does them no good and may, indeed, form for them a pattern which is evil! I also believe that this is true of the very long sentence, and the evidence from the French suicide inquiry backs up this view to a certain extent. The results show also that a large percentage of those who attempt to commit suicide do so in the despair of a long sentence.
I am committed to the belief (I cannot argue it in full at this time of night) that any sentence of over four years, if it is not enlivened by hope at the end of it, and is not in some way made remedial and reformative by access to normal conditions, as well as to a prison cell and the yard—indeed, the whole accoutrement of the prison—is likely to destroy some quite essential dimension in the prisoner. I do not believe that long sentences, unless they are spaced out with much more generous and much more humanitarian methods, such as would be found in hostels, are compatible with the Christian faith. I certainly do not believe that they do any prisoner any good. Therefore, in this general sense, in noticing in the general provisions of the Bill, the attempt to keep people out of prison, how heartily do I agree with the Bill!
The Long Title of the Bill refers to it as, among other things, a Bill
"to make further provision for…the management of prisons…"
I find that this is not fulfilled in the Bill, and this is where my major criticism of the Bill can be found. I welcome heartily the abolition of corporal punishment in prisons, having had to minister to those who have been the victims of corporal punishment, and having also had to come to terms with the psychological results and the often perverted reactions of people to corporal punishment. I am quite sure that corporal punishment in prisons, let alone outside prison, is an enormity.
But there are other conditions in prison which are just as bad, and I should have hoped that by this time a far more serious attempt would have been made to deal with this execrable problem of three or two in a cell. I find that three in a cell is generally, from the sexual standpoint, preferable to having two in a cell, but where there are 9,000 of either two or
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three in a cell—and I know the size of the cell, as no doubt do some others of your Lordships—I find this an intolerable situation, and I have every reason to think that the depravity which is likely to be consequent upon such a kind of incarceration is out of all proportion to the efforts which could be made.
We should demolish Pentonville, which is a stinking hole—and I say that advisedly; there is no way of getting rid of the smell. The same is true of Wandsworth. They ought to have been demolished, and I think would have been, just before 1939, had it not been for the war. They are monstrosities. They have no useful purpose, even if open prisons have. If we are talking of the management of prisons, then I firmly believe that one of the essential characteristics of any move in the right direction would be the demolition of this kind of prison and as quickly as possible.
I turn for a few moments to a matter of interest which was raised for the first time only just now in this debate, the question of firearms. If it be true that a sentence of death "concentrates the mind", I would delay your Lordships for a moment to remind myself, and perhaps to persuade you, that there is nothing which concentrates the minds of many people so much as the possession of a gun in their pocket. So long as you have a gun you are not thinking of other methods of defence. The gun is an occupational attitude. I believe that it is perfectly right that shot guns should be included, even if they can be sawn off. Inasmuch as it has already been represented in the course of this debate that the firearms matter goes rather widely, let me go a little more widely still. I should like to see the total abolition of all toy guns, because I believe they create much the same kind of reaction as an actual gun itself does. It is an interesting comment that in the Soviet Union it is illegal, and attracts a large fine—and, in the last resort, a prison sentence—that toy guns of any description should be sold to or possessed by children.
I should like to see the total abolition of the manufacture and sale of pistols and revolvers. I have never been able to be persuaded that a pistol serves any useful purpose, even in sporting and farm conditions, which could not be better served by a shot gun. The prevalence,

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as I happen to know as a practising social worker, of the ideology of the gun and the kind of violence which has increased have a great deal to do with the gun in the pocket which induces by its very presence an attitude to life that I consider deplorable. And if we are bidden "not to cause occasions of stumbling", then this seems to be one of the most promising of all the general attitudes of this Bill, and I hope that it will go a lot further than it does.
One last comment. I believe most heartily in the general intention of this Bill to transfer the emphasis away from the prison cell to the hostel. I have some little knowledge of how this can be done with regard to alcoholics. I would ask my noble friend to tell us a little more about this when and if he can. There are many kinds of hostel. There are hostels for the drunk. How ridiculous it is to send a drunk to prison! What a waste of time of the drunk and of the prison authority! I should like magistrates to remember that they can insist, as a term of probation, that a man who is put on probation because he has been drunk and disorderly gives an undertaking to keep "off the bottle" entirely. That was omitted from one of the recent Bills, but it is still at any rate a possible injunction.
But what I am most concerned about is the immediate prospect. If, as indeed is true, we are suffering from an overworked Probation Service, with not a great likelihood that they will recruit as many as we want, then, as has been indicated in the Bill, there is a place for voluntary hostels. To bring the matter up to date, I would undertake, in the mission where I work, to purchase, if the Government provide the money, a hostel immediately, and include it in the kind of alcoholic work that is now being undertaken. I say that because I am sure that I am not unique in this feeling. I am sure there are many Christian organisations who are a little tired of asking the question, "Is God dead?" and who would like to move on to something a little more practical. One thing they might do is to combine and co-operate in this most adventurous and, I think, hopeful attitude of this Bill. One reason, above anything else, why I regard this Bill as hopeful, and as leaning pre-eminently in the right direction, is that it includes the proposal
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—though it has not yet been amplified and implemented—that there should be, in an attempt to deal with the delinquents and the prisoners, this general transfer to the hostels in place of the outworn, useless and completely unjustifiable prison system.
8.20 p.m.
LORD GUEST: My Lords, in rising to take part in this debate I feel most conscious of the accusation of inter-meddling in what is primarily an English Criminal Justice Bill, in matters which really do not concern a Scots lawyer. On the whole, I firmly think that it is not right for Scots lawyers to try to import into an English system Scots principles. May I say that I also hold the vice-versa view. I think that there is good and bad in both systems. It is usually found that the system of law is suited to the particular country, so I think that the motto "Gang warily" is a very wise one in what in other fields is regarded as a cross-fertilisation procedure. But sometimes when an innovation is suggested in one system of law, and that innovation has been the accepted practice from time immemorial in another, it may be not unhelpful to know what the experience of that other country is and what in fact happens. I say at the outset that I feel nothing but surprise at the outcry which has been raised against the proposals in Clause 11 in regard to majority verdicts. But I refrain from expressing surprise, and I speak purely in this matter as amicus curiae. Therefore, it may be helpful if I give the House some of the history and a little of the experience which has been gained in Scotland in regard to majority verdicts.
A bare majority verdict of 15 jurors has been established in Scotland since the year 1534, even in capital cases. What happens in fact is that in his charge to the jury the judge reminds them that they have three verdicts open to them —a verdict of "guilty", "not guilty", or "not proven". He tells them that unanimity is desirable but is by no means necessary, and that they can return a verdict by a bare majority at any time. When the jury return after their deliberations the clerk asks them, "Members of the jury, what is your verdict?". If their verdict is one of "not guilty", then that is the end of the matter. And that, I think, is a difference from the proposal

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made in Clause 11 of this Bill, to which I will refer later. If the verdict is not guilty, then, as I say, that is an end of the matter, and no question is asked as to whether it is by a majority or unanimous. If the verdict is "not proven", similarly no question is asked as to whether it is by a majority or unanimous. If, however, there is a verdict of "guilty", then the clerk proceeds to ask the foreman of the jury, "Is it unanimous or by a majority?", and accordingly the verdict is recorded, "Unanimous" or, "By a majority". But the extent of the majority is not disclosed, and that is the end of the matter so far as the jury are concerned.
It seems obvious to a Scotsman that there are very great advantages in such a system. In the first place, you never have a retrial on account of disagreement—and a retrial is unsatisfactory both in regard to the public and to the accused. The verdict of the jury is final, and the case is not reopened. In Scotland, up to the present moment the safeguards have been considered adequate; namely, the establishment of a Court of Criminal Appeal in 1926, and that if an appeal is taken, then the fact that the jury have returned a verdict by a majority is something which the Court of Criminal Appeal can take into account—but, of course, they do not know the extent of the majority. I have endeavoured to get statistics from Scotland to ascertain the figures of majority verdicts, but unfortunately these are not available. The general impression is the rather interesting fact that up to ten years ago the rule was that unanimous verdicts were really in the majority. In the last ten years there has been an increasing tendency for majority verdicts to be returned. The reason for that I cannot explain, and I do not think it is easy to explain.
It has been said in another place, and perhaps it may be said here, that the distinguishing feature between Scotland and England is that in Scotland corroboration is required before a verdict of "guilty" can be returned. One witness is not sufficient; there must be corroboration by facts and circumstances. In my humble judgment, this really has nothing to do with the question. It is entirely a separate matter as to the degree of proof which is required, and as to the extent
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of the majority which is necessary. The reasons for the difference between the two verdicts have been variously explained, though never very satisfactorily. I was interested to observe that Hallam, an English historian, described the unanimous verdict as:
"That preposterous relic of barbarism".
I suspect the reason was that in times far gone by judges used to compel jurors to return a verdict—not necessarily a verdict of "guilty", but that they were enclosed until they returned a verdict, it may well be that the unanimous verdict has sprung from that. In Scotland, on the other hand, verdicts have mainly been arrived at by what was called "the sense of the meeting". It was not thought at all anomalous that there should be a minority of the jury who were not in favour of a verdict of "guilty," and that did not in any way prejudice the verdict of the majority.
What I think is significant is that, so far as I am aware—and so far as anybody I have discussed the matter with is aware—there has never been any complaint or suggestion of unfairness throughout the whole history of the matter in Scotland since the 16th century, since that system has been regularly in operation. What I think is more significant, however, is that the Scots Law Commission, which has invited complaints, representations or observations on reforms has, so I am informed on the authority of the Chairman of that Commission, received no observations or suggestions on the system of majority verdicts. One would have expected that, in the 400-odd years which have passed since 1534, if there had been anything unfair or unreasonable in majority verdicts it would have shown its head. The presence of a Scots Law Commission was an opportunity for the public to register protests, if there were any.
In conclusion, I wish to refer to one matter which is perhaps a matter for the Committee stage, but which may be worth mentioning at present. I indicated to your Lordships that in Scotland when the jury returned a verdict of "not guilty", that was an end of the matter. As I understand Clause 11. it contemplates in England that there should be a verdict of 'not guilty by a majority", if that was in fact the verdict of the jury. I thought the noble Lord, Lord Stow Hill,

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made a very good point when he said that no man would feel that he had been cleared of a charge if the jury returned a verdict of not guilty by a majority.
It seems to me to be quite unnecessary to complicate the matter in that way, and perhaps the Government would give consideration on the Committee stage of the Bill to alter Clause 11 in such a way that the only case in which a majority verdict would be announced would be where there was a verdict of "guilty". It seems to me quite unnecessary where there is a verdict of "not guilty" that any question should be raised whether it is unanimous or by a majority. If the verdict is one of "not guilty, then whether it was because the desired majority was not obtained, or because the whole of the jury were in favour of "not guilty", the man would have a clean sheet. Subject to that alteration, I would firmly support the clause.
8.30 p.m.
LORD HAMILTON OF DALZELL: My Lords, I join with, I think, every other noble Lord who has spoken in commending this Bill in general. It is true that it is a very mixed bag and that it does not attempt to introduce a number of reforms which are generally accepted as desirable; but I think it will be more profitable for me to concentrate on what is in the Bill rather than on what might have been, and I think that every proposal in the Bill is based on a good idea, even if in detail they may not all quite hit the nail on the head.
I propose to confine myself primarily to consideration of the Bill from the point of view of the Probation and Aftercare Service. May I first say that a number of the minor provisions seem to me admirable. These include the provisions about bail in Clauses 15 to 17, and those about probation and discharge in Clauses 41 to 46. Indeed, two clauses which have been introduced since the Bill was first published meet points which have been raised by the National Association of Probation Officers—Clause 43, which allows courts to substitute an order of conditional discharge for a probation order; and Clause 46, under which courts may be obliged to consider a social inquiry report before imposing a prison sentence. This last one is something about which the Probation Service feels very strongly, and it will cheerfully accept any
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additional burden which may result. I was very pleased to hear the explanation of the noble Lord, Lord Stonham, of the intention of Clauses 79 and 80, which I am afraid had not been clear to me from reading them. Of course, I fully support anything which is designed to stimulate the development of hostels and the use of volunteers in after-care.
I have some reservations about the proposal in Clause 37 to empower courts to enforce fines by attachment of earnings orders. These do not work very well in enforcing maintenance orders, except when the person himself finds it convenient, in that it saves him trouble and avoids the temptation to spend his money on something else. Otherwise he is apt to get out of it simply by changing his job, and that is not something which one wants to encourage among the sort of people who are likely to incur fines for criminal offences. Furthermore, an order involves disclosing to the employer that the man has been fined, and this may also have unfortunate consequences. These snags would be overcome if the P.A.Y.E. machinery could be used. The tax authorities could be informed of the deductions required and the employer would simply receive notice of a change in the man's tax code, which, of course, goes with him wherever he goes. I concede that there may be administrative snags to this proposals also, but I should like to know what they are before the idea is dismissed.
Next I should like to say something about suspended sentences. I have great sympathy with the motives of this scheme, and of course it will help with the general aim of reducing the number of people going to prison. I understand that it works well in other countries, although the noble and learned Lord, the Lord Chief Justice, has expressed a different view. But I am not sure about its being satisfactory in the context of our system.
In the first place, I think it will pose a dilemma to a court which has to deal with someone under suspended sentence who has committed a further offence. The court must take into account Clause 31 of the Bill, which lays down the general principle that the suspended sentence should be imposed unaltered
"unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended

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sentence was passed, including the facts of the subsequent offence."
If it is of that opinion, the court may vary or ignore the suspended sentence. But how should that proviso be interpreted? The whole basis of suspended sentences, as I understand it, is that the offender shall be in no doubt of what will happen to him if he offends again. But if they are rigorously enforced, then very often they will be unfair or unjust. On the other hand, if they are regularly varied on account of altered circumstances, the whole thing will lose its point and will have no obvious advantage over a conditional discharge or indeed a probation order.
That brines me to a further anxiety in the minds of probation officers: that courts may see this as an easy way out, saving, trouble both for themselves and the Probation Service, and may use the threat involved in a suspended sentence as a deterrent in cases where a probation order would have been better. For these reasons I am, on balance, against the suspended sentence, and this is something which I regret, since one of its most active proponents has been a colleague of mine on the bench on which I serve—a man whose sincerity I very greatly respect.
Now I turn to what is to me the most important part of the whole Bill—the release of prisoners on licence, or parole. I think that this is a very fine idea, quite apart from its incidental advantage of easing the congestion in prisons. But the detailed application of the idea is far from easy and the Bill will have to be considerably improved if it is to be workable. First, I should like to say something about the principle of parole. The present one-third remission is based on behaviour in prison, without reference to possible behaviour after release. It is, I think, well-known that intelligent professional criminals, if they are unlucky enough to get caught, make the best prisoners. They have the sense to understand that the best course is to be a model prisoner and earn the maximum remission, so as to get back to the practice of their profession as soon as possible. Only the most inadequate or unstable prisoners are foolish enough to misbehave to the point of forfeiting their remission while in prison.
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The new scheme for remitting a further third of the sentence is based on a different principle—not behaviour in prison, but the prognostication of behaviour after release; certainly a more logical criterion, but one very much more difficult to assess. And if the basis of the scheme is that men shall be released on parole who seem to have the best chance of success outside, is it not a weakness of it that those men will have the benefit of supervision during what would have been the rest of their sentence, while the worst risks who are not thought likely to succeed outside will serve their normal term and then get no supervision at all?
The original version of the Bill gave no indication of how this difficult task of assessment would be carried out. It simply said that the Secretary of State may release on licence. As it now reaches us it is rather more explicit, but I still cannot say that I am altogether happy about it. The proposal now is that there shall be a local review committee for each prison, which will review the cases of those eligible for parole and report to the Secretary of State. He will select from the cases recommended by those committees those which appear to him suitable for release and refer them to the Prison Licensing Board, which will then advise him whether or not to release them.
This shuttling to and fro seems rather peculiar. How will it work out in practice? The composition of the local review committee is not laid down in the Bill, but the Home Secretary has said that it will probably consist of the prison governor, a senior probation officer for the area and a member of the board of visitors. This raises a further question. Will the governor make the decision about what shall be recommended after listening to the advice of the other members, or will the committee operate democratically with the view of the majority prevailing? I hope the latter.
The Bill gives the Secretary of State power to make rules for these committees but, like the noble and learned Lord, Lord Parker of Waddington. I think we ought to know how the Government intend that they should carry out their duties. In any case, one would have thought that a member of the Prison Welfare Service would have been more useful than a local senior probation

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officer. In a prison where there are enough prison welfare officers to justify the appointment of a senior prison welfare officer, he would be the obvious person. Although, admittedly, a senior prison welfare officer in a prison is still a rarity, one hopes—and I am encouraged by what the noble Lord, Lord Stonham, said today—that that situation may be improved.
As the Home Secretary said in the debate in another place, and as the noble Lord, Lord. Stonham, said again to-day, the Prison Department has constantly to take decisions about what happens to a prisoner; whether he should be moved from one sort of prison to another—for example, from a closed one to an open one—or should be selected for the hostel scheme, and so on. Ideally, this should be done by a case committee consisting of those concerned with all aspects of prisoners' progress, including prison welfare and after-care, and this would surely be the right body to consider suitability for parole as well.
The proposed local review committee seems to be rather an ad hoc body assembling from time to time to consider the cases of a batch of prisoners. It is suggested that the prisoner will not appear before the committee, but that the senior probation officer member will interview him. I think that, inevitably, the prisoner will assume that this is the man who will, in fact, make the decision about his release.. This seems likely to create very tense situations in prisons, with the prisoner whose date of eligibility for release has come up waiting anxiously for his interview and then for the decision ultimately to come through—followed, of course, by bitter disappointment for those not chosen. Relationships would certainly be difficult even under the system that I have suggested, but at least the process of assessment would be a continuing one, with no new people or bodies coming in to heighten the tension.
Anyway, what happens next? The committee sends its report, presumably with recommendations, to the Home Secretary; the Home Secretary eliminates those he cannot approve—I suppose on grounds of overall policy, national security or something of that sort—and then he sends the rest of the names for consideration by the Board. The Board then lets the Home Secretary know which
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of these it recommends, and the Home Secretary gives instructions for them to be released. I think I have that right. It seems to me to involve a great many bites at the cherry; and it is a little difficult to see on what basis the Board will reconsider the recommendations of the committee as pruned by the Home Secretary. After all, the committee will be in the best position to form an opinion, and it will be very discouraging for them if their recommendations are much altered at the two subsequent stages.
Now a word on the question of supervision of men on parole. As the noble and learned Lord, Lord Parker of Waddington, pointed out, the Bill says nothing at all about this question of supervision, except in Clause 49, where it says:
"A person subject to a licence…shall comply with such conditions, if any, as may…be specified…"
But it has been generally assumed—and the noble Lord, Lord Stonham, has said to-day—that the intention is that men on licence shall be put under the supervision of a probation officer. Will all men on licence be under supervision, or will some be released without any form of supervision? And if it is the intention that all should be under supervision, would it not be better to say so in the Bill? The supervision of men so released is, of course, a duty which the Probation Service willingly accepts in principle, although whether it could take it on at its present strength is another matter. Here, may I say how grateful I am to the noble and learned Lord the Lord Chief Justice for what he has said about the Probation Service in this context?
But the relationship between the man on licence and his supervising officer will clearly be an extremely difficult one, and the officer will need all the support he can be given. To whom will he report? In probation and after-care he has his local case committee, and he can regularly discuss the progress of his clients with people whom he knows and who share with him responsibility for their future. Presumably with parole he will report through his principal probation officer to the prison department in London, which may seem to him, by comparison, rather remote and comfortless.
His responsibilities become even more worrying when the question of revocation of a licence arises. And here again the

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Bill is extremely vague. It simply says, in Clause 51, that the Secretary of State may recall a man to prison on the recommendation of the Prison Licensing Board or, in urgent cases, without consulting the Board. But on what information will the Secretary of State base his decision? I suppose the answer is, "On the reports he receives from the supervising officer," and if the reports are had enough to justify it the police will eventually be sent to pick up the man and take him back to prison where he will, under Clause 51(3), have the right to make written representations about what has happened to him. Surely this cannot be satisfactory.
In the first place, can the supervising officer hope to establish a proper relationship with his client if the client knows that the officer has the power to make direct recommendations for his recall to prison? That cannot be a good basis for mutual understanding, which is essential if the supervision is to do any good.
LORD STONHAM: My Lords, will the noble Lord say what precisely is the basic difference between that procedure and that which now obtains, under which, if the man or boy on probation is not carrying out the terms of his order satisfactorily, the probation officer has to report him with a view, possibly, to his being sent to prison?
LORD HAMILTON OF DALZELL: My Lords, the noble Lord is referring to the person on probation, and I was just coming to that. What I was going to ask was: is it right to have a system by which a man can be put in prison by an administrative order, even if he is still technically a prisoner, without any opportunity of being heard in his defence or of confronting those who would put him away? Surely it would be better if the whole business of recall were done through the courts, on the same basis as breaches of probation are now handled, and as was provided for also in Schedule 3 to the Criminal Justice Act 1961, which is now being repealed.
In that case a man could be brought before a court by a supervising officer if he was in breach of his conditions. Or if the supervising officer had lost touch with him he could ask the court for a warrant to bring him back. In either
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case the man would have an opportunity to explain his actions and to refute what was being said about him. The court could, in appropriate cases, warn him that he would be sent back to prison if he did not mend his ways, and the court could further be empowered to combine this warning with some other punishment for the breach of the conditions—for instance, a fine—just as it now can in the case of a probation order. And if it appeared that the man ought to go back to prison then he could be remanded in custody for the Board to consider his case. This, in my view, would certainly be a better system from the point of view of the probation officer and would make for a much clearer and easier situation between him and his client.
My Lords, in all that I have been saying I have been trying to get beyond the wording of this Bill and to see what it means for those who will be involved in making it work. I have tried to be constructive. The Probation and After-Care Service, as I have said, accepts that the supervision of men on parole should rightly be part of its duties. It asks only two things: first, that the system should be workable; and, second, that the Service should not be asked to undertake these new duties until its strength has grown to a point which makes it possible —and I was glad to hear the noble Lord, Lord Stonham, say, as I understood, that that is indeed the intention. I know it has been said that the number of prisoners involved will not be large enough to make a serious difference to work-loads, but the men released will constitute only part of the extra work. In every case where release on parole is even contemplated one of the considerations must be the home conditions to which the man will return, the prospects of employment and so on; and that means a social inquiry report by the local probation officer, whether the final decision is to release the man or not. I hope that consideration will be given to the anxieties of the Service in these matters. Those in it want to do the job, and to do it well as soon as they feel they can.
There are still a number of points at which, in my view, the Bill could be improved, but I think I have said enough to-day. In general, I commend the Bill, so far as it goes, but I wish it had been possible to bring in a measure dealing

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more broadly with the whole subject of penal reform. I wonder when we may hope to see such a Bill.
8.48 p.m.
LORD WILLIS: My Lords, I rise to welcome this Bill for two particular reasons: first, because I think it tries to blow some of the dust out of our legal system—and I welcome that—and, secondly, on a more personal level, because I know it represents the consummation for my noble friend Lord Stonham of many years of dreaming and hoping in this particular field. To those already expressed to-day I want to add my congratulations to my noble friend, not only on the way he presented the Bill but on the many years of work that he and many others have put in to make some of the provisions of the Bill a reality.
There are, in fact, two approaches to British justice. There is, first of all, the view, which I regard as romantic, highly-coloured and smug, which maintains that British justice is the best in the world and that there is nothing to beat our judges, our policemen, our courts or our legal system in general. This is a view that is taken largely by Englishmen abroad; and I must confess that after visiting some of the countries to which I have been, and having seen their legal and law enforcement systems, I have come home with considerable relief and gratitude and have welcomed our own particular law enforcement and legal system. But it is a smug and narrow view. There is much that is wrong in our legal system and much that we have been afraid to alter, for one reason or another which I do not profess to understand.
Then there is the opposing view, expressed by Englishmen at home, especially when they have been in contact with the law: the view expressed, probably in its angriest form, by Dickens in some of his books. He had a great contempt for lawyers. It seems that many great writers have seen fit to castigate and beat the law. I like Shakespeare's phrase:
"Let's kill all lawyers."
I have great sympathy for that. And his reference to lawyers who
"sleep between term and term and then they perceive not how time moves".
I have often felt, when I have had contact with lawyers on something which I have regarded as an urgent matter, that
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they do "sleep between term and term" and do not seem to share the urgency I feel. My Lords, the truth lies somewhere between these two views. British justice has a great deal to recommend it; but it is not perfect. But let others praise it; let us criticise it and try to alter it. It is not so good that it cannot be improved. I believe that this Bill introduces some much needed and long overdue improvements.
It is a huge and varied Bill. It has been described in various terms this afternoon. I find it a little like a Chinese meal, with noodles, sweet and sour, and chop suey and a little for everybody's taste. I do not intend to comment on anything at this particular stage except this question of majority verdicts by juries. This section of the Bill might perhaps be described as the "sweet and sour course", judging by the debate we have had this afternoon. I have react and listened to the arguments against majority verdicts; and I must admit that I am no wiser now than I was before. The only argument that seems to have been advanced is that the jury system as we have it to-day is 600 years old; that it has worked well with rare exceptions; that in its earlier beginnings it did strike some vigorous blows for British justice; and that, therefore, we should not be in too much of a hurry to change it. I cannot sec that 600 years is rushing it; but that seems to be the argument.
My Lords, that is the classic argument against all change. This House is considerably older than 600 years; but even your Lordships—who are notably obstinate—have recognised that changes must come here and that our position and powers must be altered, and have even steeled ourselves to these changes.
BARONESS WOOTTON OF ABINGER: My Lords, would my noble friend allow me to say that one of the arguments used, I think by myself, was not that it was an instrument of 600 years' durtion but that it was high time that we examined it rather more closely before making a change of this kind.
LORD WILLIS: I thank the noble Lady for that intervention. I was in fact just coming to this particular point.

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As I was saying, we in this House, with much greater antiquity, have steeled ourselves to certain changes that must come. It seems to me that one ought to do this in relation to majority verdicts and the present jury system. The other question that has been raised—and this is where I come to the point made by the noble Baroness, Lady Wootton of Abinger—is that we have not enough evidence, and therefore we should hang on a little longer and investigate the problem. But I suggest that this is going to be an area in which it is practically impossible to get evidence. We are now facing what is a new and completely different situation and one which calls for new thinking, a situation that is terribly dangerous and on which we cannot afford to wait. We have all heard that there has been this immense increase in crime, from 11,000 prisoners a year in 1938 to 35.000 to-day. This is an appalling picture; and a sad one. I find it personally sad because I used to have the dream that once we got rid of unemployment in this country and built a different kind of England where people would not be out of work and would not be poor, crime would decrease. It seems to me—and it is a rather chastening thought—that the more we move forward, the bigger the scum that we create. I find that sad.
Coupled with the increase in crime, there is the enormous increase in organised crime and in the gangs. We must never forget that this is the new element: that crime has rationalised itself far more than our industry has. It has moved a long, long way from the "thieves' kitchen" of old. This is the day of the big "fixer"—and let no one be under any illusions that this is not going on every single day in relation to our legal and jury systems. This is the day of the entrepreneur of crime, the impressario, the agent, with immense resources of money, contacts and personnel. A small crook to-day goes to a "fixer" and is financed for his operation. He gets an advance of money and he gets an expert assessment of the possibilities of the crime that he wants to undertake; and in return he gives the "fixer" 40 per cent. or 50 per cent. or even 60 per cent. of his proceeds. But that "fixer" gives him not only the money but protection all the way along the line.
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A leading police officer once told me how difficult it was for the police to get information on these "fixers", or to pin them down in any way. He described his embarrassment one evening when he went to a highly respectable dinner party and actually met there a man that he knew to be one of the leading "fixers". They are some of the more highly-respectable men in our community—or they appear to be so—and they operate on a gigantic scale. The great train robbery, the bullion robbery, these are just the tip of the thing; it also operates on a small scale all down the line. These people can fix anything, and they can fix a jury, and they are fixing juries, day in and day out. You cannot get evidence on it because these people are not stupid. They have seen that the Achilles' heel of the present system is that only one person has to disagree and the accused is off, is away, is free. It may be that he will be sent for trial again; but if there is a disagreement a second time he will be free.
That is the Achilles' heel at which they struck. They strike with money and with threats, and they strike continuously. It is being done now. We publish the names of all jurors; their addresses are published and it is not difficult to get their telephone numbers. What jury man is going to come into the open and say: "I had a telephone call at midnight which said what would happen to my house or my children or to myself if I did not give the right verdict." What juryman but the exceptional man would say, "I have been offered not £50 but £500 in order to bring in the right sort of verdict." You could set up a commission to sit for twenty years and not get that kind of evidence. But it goes on; and it goes on all the time. It is practically impossible to lay hands on these people or to get proof. As crime develops on this huge and organised scale it will go on more and more. It will still continue, even if we bring in this change and make majority verdicts possible; but at least it will be much more difficult for the "fixer".
That is why I welcome the change. These "fixers" do not advertise their successes—but they are having successes, many more than those that have been quoted in the debate in another place or here to-day. That is why I support this recommendation. I support it as an

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urgent measure, and I do not believe that the setting up of another committee to investigate the working will help in any way. This is not a sporting game. This is not a game of cricket. This is a very serious Position in which lives, money and justice are involved. We cannot afford to go on playing about with it any longer. We are trying to put bad criminals behind bars. We must not think that our policemen who are trying to do this are, in fact, merely batsmen going to the wicket. We must not apply the same rules to them as one would to cricket.
My Lords, I was going to comment on one or two other points, but I will not do so in view of the lateness of the hour. I should like to support very much some of the points made by the noble Lord, Lord Hamilton of Dalzell, particularly in relation to the Probation Service. This Bill is asking a great deal of the Probation Service. It seems to me that this is a body of people underpaid and overworked, and that we ought to go into the question much more carefully, because to have an idea is one thing, but to have the administrative machinery and the people to carry it out is another. I am not sure that the suggestion that auxiliaries should be trained to work alongside properly trained probation officers is not a good one. I think we could find a large number of people with a sufficient sense of dedication, sufficient devotion and willingness to work alongside properly trained probation officers, and so take some of the burden off the shoulders of those officers.
I should have liked to see in the Bill (although perhaps it does not come within its scope) an attempt to deal with what I regard as this terrible problem of the magistrates. This is another hoary old problem in our system with which we never seem to get to terms. A case was quoted the other day, I think in another place, of a 79 year old man charged with his first offence. He appeared in court and was given a sentence of three months. A 33 year old man charged with the same offence at the same court was fined £25. I am sure that your Lordships could quote hundreds of other cases revealing these terrible discrepancies between what happens in one court before one magistrate, and what happens in another. Any commercial traveller could
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produce his little black book in which would appear which are the worst places in the country to be caught for motoring offences, and which are the least bad. I cannot understand why, when we are talking about justice, we cannot obtain some kind of regularity in the treatment of offenders who come before our magistrates. It seems to me that this is something which urgently requires attention. I hope that will come, because we have what I think is a great team now. We have one of the best Home Secretaries and one of the best Lord Chancellors in living memory, in my humble opinion, and I hope that they will be able to tackle this reform.
I had intended to speak for about ten minutes, but I want to end on a note of mild protest. It concerns in particular the business of the House. I wish to protest strongly about one thing. To-day we have had an excellent debate which has included some fine speeches, but as a humble Back Bencher I should like to protest against the undue length of some of the speeches made in the early part of the debate, and against the fact that there were certain interventions in the "batting order" as printed without there being any consultation. Since we are talking about justice, I think this is wrong. Every Peer is equal, and I think it wrong that this should happen. The inevitable result is that the best of the time is taken, and towards the end of the evening speakers get up and feel forced to apologise to your Lordships' House, and to say, "I am sorry to keep your Lordships at this late hour", and, "I am not going to cover all the points I wanted to cover". Then they gabble a speech and sit down in a great hurry. I believe that some attention should be paid to this matter, because I think it wrong and rather selfish of the earlier speakers to go on at that great length. I hope that perhaps the Chief Whips or the Parties concerned may do something about this through the usual channels. I am making this protest because I know that many humble Back Benchers like myself feel very strongly about it.
9.4 p.m.
LORD CHORLEY: My Lords, I think that the answer to my noble friend is that at this hour of the night we are speaking for the Record rather than to each other. But when he has such a good

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and attentive audience, I do not think that my noble friend Lord Willis need have any fear that his record will not be spread pretty widely. I should also like to say to him that a great deal of work is being put into the problem of obtaining a certain uniformity in relation to fines in courts up and down the country. My own county bench has had this matter in hand for quite a long time. The difficulty is to spread the movement over the country. It is possible that one county may vary a great deal from another, and there may be substantial differences between the West County and the North-East. I agree that there is a case for ironing that out, although perhaps this is not the occasion on which to go into the matter in detail.
My Lords, I should like to add my congratulations to those of almost every other speaker to-day to my noble friend Lord Stonham, not only for the admirably lucid exposition he gave of this difficult Bill, but for all the work which we know that he does in the Home Office—at any rate, those of us who are in close touch with these criminal problems. We feel confident in the support which we get from him when we have a problem to take to that important Department. I have had some difficulty in judging what sort of Second Reading speech to make, because this is emphatically a Committee stage Bill, as has been emphasised by quite a number of speakers. To my taste the Bill is full of "cherries" and it is quite obvious, from what has been going on to-day, that pretty well every one of the cherries is going to be bitten on twice. I do not propose to do that very much myself, although I have a sheaf of—I will not call them "cherry stones"—points on individual clauses which at one stage earlier in the day I had hoped I might have the opportunity of making. But I am reserving the points for the Committee stage, when I hope that I shall have a chance to speak on quite a number of them.
I should like, however, to make two or three general observations on the Bill. It has been welcomed by practically every speaker, although some had small reservations, and like those other speakers, I welcome it. Yet when I recall the high hopes with which we welcomed the Criminal Justice Bill in 1948, and ponder how many of what were regarded as im-
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portant provisions in that Bill are being eliminated by this Bill, I cannot refrain from feeling a little sorry. I am thinking particularly of the disposal provisions, the sentencing provisions, and not of the earlier part, which deals largely with procedure. The 1948 Act was more concerned with the sentencing aspects, and it is on the sentencing aspects that I want to concentrate my remarks.
An important part of this Bill is taken up with undoing some of what appeared in 1948 to be the most promising innovations, and it may well be that twenty years hence we shall be back here again—at least those young enough to be able to look forward to twenty years on—to deal with some of the provisions of this Bill in exactly the same way. The Bill deals with the problems of punishment in an empirical manner, as did the 1948 Act. At that time many of us thought we had the clues to the problem. I am inclined to think now that in this jungle there are no really certain clues. For the fact is that we are dealing with human beings. This is becoming much more understood and accepted during the present century than it ever was during the time when our criminal system was built up, and it is a basic rule which none of us must allow himself to forget.
We have to continue to handle these problems in an empirical way and be prepared to change our outlook, not merely from generation to generation but from decade to decade. I remember in 1948 the late Lord Templewood emphasising the complexity of the subject. He said in his speech on the Second Reading of the 1948 Act:
"The merit of this Bill is that it gathers together these experiences"—
of the years since Victorian times—
"and attempts to make a new approach to penal questions upon a much wider front"—[OFFICIAL REPORT, 28/4/48, col. 467.]
I entirely agree with my noble friend Lord Willis that if that was true in 1948, it is even more true at the present time. Certainly our experience in the intervening years has underwritten emphatically the word "complexity".
I hope that your Lordships will forgive my harking back to the 1948 Act. I think I am the only Member of your Lordships' House whose name is down on the list of speakers to-day who took part in those debates. I have vivid

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recollection of them, because at that time I was acting as a sort of junior barrister, or staff officer, to the late Lord Jowitt, who was Lord Chancellor at the time and in charge of the Bill. I remember the personal note which that great lawyer and speaker struck at that time and which so often gave a distinctive flavour to his speeches. His Second Reading speech on that Bill received more rapt attention than any other speech I ever heard him make in your Lordships' House. I should like to quote a passage from that speech. Pointing out how he had come to take a personal interest in these problems he said:
"I think I may say that I have visited nearly all the prisons in this country and Scotland, as well as those of many foreign countries. When I started 25 years ago it all seemed so easy. I thought the lines upon which reform should be carried through were so clear and so simple. I confess that, having now learned a good deal about this subject, I am baffled and perplexed about many of the solutions which we ought to adopt."—[OFFICIAL REPORT, 27/4/48, col. 391.]
I must say that I have great sympathy with his feelings in expressing that view. It is, of course, a note of desolation, up to a point, and, I suppose, a note of pessimism. To compare it with the speech of Lord Templewood, it certainly lacks the buoyancy which he (and of course to a large extent he had been the architect of the 1948 Act), was able to infuse into his speech.
I should like to make it clear, however, that what I said earlier on about the present Bill undoing the work of the 1948 Act in a number of important respects must not be taken to mean that I think that Act has not, on the whole, stood up to the stresses and strains which have been put upon it. Indeed, a large part of it is still very much operative, and on the whole it is operating satisfactorily at the present time. Nevertheless, I think it must be confessed that most of those of us who have been concerned with the problems of criminality over 25 years—and some of us even longer—are able to find only rare, small grounds for optimism in what has happened since 1948, during which time we have had a terrible upsurge of crime.
My noble friend Lord Willis gave some of the figures, and they cannot fail to frighten anybody who is worried about the preservation of order in our com-
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munity. It would not be too much to say that we are at our wit's end to explain this terrible upsurge of crime, and even more as to how to cope with it successfully. It seems to be beyond our powers. During the 'thirties, when I first began to take a close interest in these problems, there was a slight increase in criminality—the statistics went up by what would now be an almost invisible amount on the graph—and it was fashionable at that time to attribute this to the terrible unemployment of those years. The noble Lord, Lord Willis, may remember this.
I convinced myself by some statistical studies, which no doubt were of a very crude character, that there was no basis whatever for this theory. The argument was really post hoc, propter hoc, and to some extent was motivated by the wishes of the people who found this tendency. It is ironic to look back on that period from the present day, when we have practically full employment. If we were to use the post hoc argument we could explain the crime wave in all sorts of differing and equally unsatisfactory ways. Thus in 1935 there was practically no scientific penology in this country; there was no research unit in the Home Office; and there was no teaching of the subject in any university in the British Isles. The Institute of Criminology at Cambridge had not been thought of. Only the Institute for Scientific Study of Delinquency had made a start on researches which have proliferated in all directions in the period since the end of the Second World War. And even that Institute was started by medical men, and not by lawyers, administrators or prison officials. I pride myself that I was one of the few lawyers who became a supporter of it from the very start.
On the post hoc theory, one might say that it was only when you begin to study and research into crime that crime increases. And if you were to turn your attention to what has happened in the United States you would apparently find this theory confirmed, because in the United States they have more criminology, they have a much greater number of criminologists than any other country in the world, and they also have a great many more criminals than any other country in the world. Yet, of course, common sense would tell you

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that this was a theory that could not hold water for a minute.
So we come to a position when the wave of crime is at its height in this country, at a time when everybody obtains full employment, when there is no real want, and when genuine efforts are being made by everybody concerned, in a way which certainly was not characteristic of the early years of the century, to deal with criminals in a sympathetic way. Lord Jowitt might well say, "Having now learned a good deal about this subject, I am baffled and perplexed." Well, my Lords, I am battled and perplexed, just as that great lawyer and that great student of these problems was.
There is one other general topic on which I should like to say just a word or two before I close. As I have already said, the matter with which I am most interested in this Bill is the sentencing—those parts of the Bill which deal with the sentencing of criminals. I always find this much the most difficult part of the administration of justice, much the most worrying, much the worst thing to take over and on which to ponder whether I have done my work well or not. And I am quite sure that that is so with all other sensitive men who take part in the administration of the criminal law in this country.
In the Parts of this Bill which deal with this problem Parliament is really providing a tool for judges, chairmen of quarter sessions, recorders, magistrates and those of us who have to administer the criminal law, and of course particularly for the Judges of the High Court, who not only do the sentencing in the more important and difficult cases but also supervise the work of the justices of the peace who are entrusted with the job of administering the main mass of the criminal law.
I regret to say that I sometimes have a feeling that the tools provided by Parliament, and by the Government, which brings them before Parliament, are not as effectively and as understandingly used by the judges as they might be. I do not quite know what is the solution to this difficulty, but I am sure we need a much closer co-operation than exists at present. I have the feeling that some of the judges make much greater efforts to keep them
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selves in touch with modern work in penology and criminology than others do. I remember that in one of the debates on crime which we used to have from time to time some years ago the late Lord Astor made the interesting suggestion that every judge who was made responsible for administering the criminal law ought on his appointment to spend a short time in prison, so that he would know what prison was like before he sent men there. It is a very interesting suggestion. I think that an even more useful suggestion would be that every judge, on being appointed to do this kind of work, should spend some time in going through a course in penology and in sentencing. After all, judges are lawyers, and the lawyer's job is really a very different one from that of sentencing a man who has been found guilty of a crime.
In recent years, the noble and learned Lord the Lord Chief Justice, who addressed us only an hour or so ago, has been doing a most valuable work, as many of your Lordships will know, in holding sentencing conferences for judges and recorders, and chairmen of quarter sessions, which I am sure have been most helpful. But of course this is, as it were, the laboratory work, from which the theoretical study has been completely absent. It would be much better if this practical laboratory work came at the end of a course which the judges and recorders and others who attend the sentencing conferences had already been through.
The noble and learned Lord on the Woolsack has of course been doing most valuable work, if he will allow me to say so, since he became Lord Chancellor, by stepping up the training arrangements for magistrates. These courses are much appreciated, judging from what I hear in my own county from those who are now going through them, and who have been taking advantage of them during the past months. Would he not think that it was just as valuable, or possibly even more valuable, that the lawyers whom he appoints to the very responsible positions of Judges of the High Court should also be asked to go through a preliminary period of training in the theory and problem of sentencing? I should like to commend that to the noble and learned Lord. Obviously, it is not in this Bill, but the Bill leaves many

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matters which will have to be worked out by the Judges of the High Court. These are problems which have been touched on, in connection with parole work and suspended sentences. They are there, so to speak, in outline. The build-up will undoubtedly have to come from the Queen's Bench Division and from the Criminal Division of the Court of Appeal, and I think it would be valuable if steps of the kind I have suggested could be taken in order to see that the build-up is carried through by men who are really well versed in the modern theories of penology and criminology which, after all, have made great strides over the past few years.
9.29 p.m.
LORD DERWENT: My Lords, although the hour is "early" I intend to be reasonably brief. At least I always think it reasonable, and I hope that your Lordships will, too. I do not intend to make the usual winding-up Second Reading speech which comes from the Opposition Benches, because the Bill has had a general welcome and the differences of opinion, which have been pretty sharp in certain cases, have cut across Party. What I intend to do, therefore, is to make a few general observations, and then I shall raise certain points which your Lordships may think are Committee points. But I want to give notice to the Government that I, at any rate, am likely to put down Amendments on the Committee stage, so that the Government can think about them in advance.
Although this Bill has been described as a hotch-potch—indeed it is—it is really divided into two parts. There is the earlier part dealing with criminal procedure and the powers of the court and so on, and there is, in the main, in the second part the treatment of offenders. It was in this second part, the treatment of offenders, that the Bill was so very much improved in the other place. Although there will be certain controversy at the later stages on matters of detail, what has now arrived in general has received a welcome from all sides. On this part, as the matter has been so fully argued to-day, I want to deal with only two matters.
This part of the Bill is obviously only a beginning on the methods of treating offenders. Some of your Lordships have criticised it for not going far enough,
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because there are many things we want to see which are not in the Bill. I have a feeling that we may not be able to go much further in this connection until we have proper buildings, which we have not got in a variety of ways. I would commend to Her Majesty's Government the speech of my noble friend Lord Sandford. We are embarking, so we were told not so long ago by the Government, on a big scheme of new prison building, which is undoubtedly necessary; I am not arguing about that. But a word of caution is necessary here. If this Bill has the desired effect of reducing radically the prison population, it may well be that that money will run out on erecting new prison buildings which may not be necessary in a fairly short time, whereas we do want, probably just as much, new hostels.
I agree with my noble friend, Lord Sandford, that the first hostels we need are probation hostels. As I said in a debate in your Lordships' House not long ago, it is with the young that we are likely to have most success under probation, with probation hostels and so on, rather than with, if I may use the rather loose term, the hardened criminal under after-care. I am not saying we should not do after-care, but this is a question of priorities. I would ask Her Majesty's Government to bear in mind with regard to the burst of new prison building recommended by the Mountbatten Report that some of it may not be necessary in the immediate future, and if any money can be spared I think hostels should have it rather than one or two prisons that eventually may not be necessary.
The only other thing I want to say about this part of the Bill—both my noble friend Lord Sandford and my noble friend Lord Hamilton of Dalzell have brought it out very clearly—is that many of us are worried that as a result of this Bill, if it is carried out fully, an unbearable burden will be put on the Probation Service. The noble Lord, Lord Stonham, says "No", but I think that needs to be proved. It will put a lot of extra work on the Probation Service. They have more than enough to do now. I mention that merely as a matter on which many of us are rather worried.
I turn to the earlier part of the Bill. It is natural that it should be largely

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argued by those connected with the law—that is quite right, because of their experience. We expected it to be argued by those connected with the law. What happens on the next stage is that we laymen become the jury, and an unusual jury, because counsel on each side will come into the jury room with us.
VISCOUNT DILHORNE: And there will be a majority verdict.
LORD DERWENT: And of course there will be a majority verdict. I was going to say it, but my noble and learned friend is always too quick for me. I am not going to debate Clause 11, which has given rise to most controversy. I started at the beginning of this debate very much against majority verdicts, because the fears of some of us had not been answered by anyone until about half-an-hour ago. Certainly, the Government did not answer them. They produced certain figures and statistics, which I must say did not carry us far and I thought proved the opposite case. It was not until the noble and learned Lord, Lord Guest, spoke that I began to waver.
I was just going to say something rather waspish about the noble Lord, Lord Willis, but as he is not in his place perhaps I had better avoid it. I would say that he did not do his case much good by, if I may so term it, gross exaggeration without any proof. I am not going into all that. I have never really thought that this question of majority verdicts was of the most vital importance. But I did dislike subsections (2) and (3) of Clause 11, although the two go together to a certain extent.
I could not believe it right that in the case of a verdict of "not guilty" the foreman could get up in court and say that there had been a majority verdict and give the numbers of how the jury voted. One can see how impossible that would be. A man might well be guilty and everybody thought him guilty, but he might be acquitted not by a majority verdict but because the case against him was not strong enough. He would go home and throw out his chest and say, "Look what I did." But another fellow, a lawyer, a policeman, or a clergyman might be charged with an offence. Let us take the case of the policeman. One member of the jury might not be able to stand policemen. The rest of the jury might say that obviously the accused was not guilty.
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But as the clause stands now, that policeman could go out of the court knowing that one man—and it would not be known who that man was—had said he was guilty. Can you imagine what everyone would say on a policeman going back to his area?—that one man had "seen through him". The fact that the man just did not like policemen would not be known.
It was pointed out by the noble and learned Lord, Lord Guest, that in Scotland, when there is a verdict of "not guilty" nothing is said in the verdict about the majority figure. I believe that if we are to have Clause 11, we must have that provision inserted in the clause. The clause must be amended so that where there is a verdict of "not guilty", whether it is a majority verdict or not, nothing is said and nobody knows except the jury. Undoubtedly, if the Government do not put some Amendment down for the next stage of the Bill, then we will.
We think the Bill should be amended in regard to subsection (3). I do not quite know how the subsection is to work. If it is not to be announced that it is by a majority verdict, how can subsection (3) apply, under which the judge has to tell the jury that in order to have a majority verdict they must deliberate for two or three hours? Frankly, I do not see the point of subsection (3), but I have not thought out a suitable Amendment. I suggest that probably the easiest way is for it to be left out. That is a matter we shall have to think about.
So much, so far as I am concerned at the moment, about Clause 11. There is one thing I should like to say about Clause 12. This is quite a proper clause, directed to trying to stop certain people with criminal records from serving on a jury. The clause needs strengthening. My noble and learned friend Lord Dilhorne raised in slightly different form the question how you were to bring to the notice of a man who had a criminal record that he was not eligible to serve on a jury. He did not want it brought to the man's notice in front of other people. I think it can be done perfectly well. I think it ought to be done, otherwise a man who is disqualified may sit on a jury and, when he is "run in" for doing it, he is going to say, "I did not know anything about this Clause 12. Nobody ever told me." He must be told. We are trying

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to deal with bribery of jurors, and I would suggest that if one is going to amend this, then, provided that people are told that if they have done such-and-such a thing they are not eligible as jurors, if a man sits on a jury and is prosecuted a fine of £100 is inadequate. I suggest that the figure, as a maximum, should be somewhere nearer £400, for the man will be sitting quite deliberately knowing that he is disqualified.
I turn to Clause 30. Again my noble and learned friend Lord Dilhorne and other noble Lords were unhappy that subsection (3) does not give magistrates discretion in suspended sentences if they propose to pass a sentence of six months or less. I dislike the idea. All I will say about the clause at this stage is that if the House accepts subsection (3)(a) (which relates to the list of crimes in which the discretion is given back to the magistrates not to suspend sentence), the offence of trafficking in drugs should be added to the list of crimes in which a period under detention is probably suitable. It is very difficult to get hold of drug traffickers, and where a man is convicted of trafficking in drugs, even though it is his first offence, I do not think that the sentence should be suspended.
The only other point I wish to mention on that clause has already been raised by the noble and learned Lord the Lord Chief Justice in relation to Clause 30(3)(e)—and this also relates to Clause 15. For some unknown reason, the matter of detention was left out. The paragraph mentions the case if:
"the offender had at any time before the commission of the offence been sentenced to, or served any part of a sentence of, imprisonment or borstal training …".
I think that the words "or detention" ought to go in there, and also in the appropriate part of Clause 15.
The only other matter to which I would refer is Clause 69, on firearms. I do not quite know why this provision is in the Bill, but I personally am in favour—though, as the noble and learned Lord, Lord Hodson, said, criminals do not use our form of shot gun as a rule. However, there are certain matters about which I am concerned. Nobody knows how many shot guns there are in the hands of those entitled to have them. The best guess I have been given is 1½ million people—it may be more, it may be less—but
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certainly it is a very large number. If this provision is included, it will throw a great deal of additional work on the police. Therefore, I would suggest that, if this Part of the Bill is brought into force, then after the certificates have been printed and are in the hands of the police ready for issuing a period of three or four months should elapse before the provision comes into force. This will give the police a longer period of time in which to go into all the applications. I think that the bringing into force of this provision needs careful consideration, and I hope that Her Majesty's Government will consult everybody who is interested (and all kinds of people will be concerned, such as gunmakers, the police, the C.L.A. and so on) as to the best way of handling this matter.
There is another problem that I should like to mention. Shot guns are likely to be found in certain areas and not in others, and certain police forces will have a tremendous amount of work; though I daresay that in some of the big cities they will have very little. Suppose that they are on three-year licences like the firearms certificates. That means that every three years at a given date the first people will be coming up for their certificates. The police will then have to deal with their 1 million or 1½ million people, probably in the last week before the old certificates expire. I suggest that while the Government are thinking about the matter, shot guns not being quite the same as ordinary firearms, they should think about chief constables being given permission to give these certificates for five years and not three where they think fit, in order to save work.
There are certain people interested in the firearms business who will be putting down Amendments, so I am told, at the next stage of the Bill, not with the idea of pressing them but in order to get some information on what is in the Government's mind. I am not putting those Amendments down, but I am merely telling the Government so that they can think about it. That is all I have to say. Obviously, we all welcome this Bill. We nearly all have criticisms of it, major or minor—mostly minor. As I say, they cut across Party, and I have no doubt that if any Party puts the Whips on, it will find many of its keenest supporters in the opposite Lobby.
9.47 p.m.
THE LORD CHANCELLOR: My Lords, apologising, as usual, to the noble Lord, Lord Airedale, to the extent that I am turning my back on him, I must say that I have had a most interesting afternoon and evening, because I have heard all the speeches except two since half past two, and as I do not pretend to know as much of this subject as my noble friend Lord Stonham does, or as much as many noble Lords who have spoken, I have had a most interesting time.
We have, after all, been honoured in this debate with contributions from two former Home Secretaries and one former Lord Chancellor. A former Lord Chief Justice has been here; and there have been the noble Viscount, Lord Amory, speaking with the weight of his authority as Chairman of the Royal Commission, as well as the noble and learned Lord the Lord Chief Justice, the noble and learned Lord the Master of the Rolls, and the noble and learned Lord, Lord Morris of Borth-y-Gest, Chairman of the Committee on Juries. No Home Secretary, I am sure, could have had a more authoritative series of speeches.
A good deal has been said, so I shall probably go on for hours, and I hope that nobody who wants to leave will hesitate for a moment in doing so, because your Lordships can read all about it in Hansard. So there is really no point in sitting to hear it, so long as one person stays—because if the last man goes there is nobody to move the Adjournment of the House and I shall necessarily be found here to-morrow morning waiting for somebody to release me.
The Bill has received a general welcome from everybody. There have been informed and critical comments, which I am sure my right honourable friend the Home Secretary will welcome. In another place the Bill was examined and dealt with on a non-Party basis, as my noble friend Lord Stonham said, in 19 meetings one of which finished at two in the morning, and there is no doubt that my right honourable friend will seek to deal with the matter in the same way here.
As my noble friend Lord Chorley, with his experience of the 1948 Act, said, this is really the first major Bill on criminal procedure and penal treatment since that
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Act was introduced by the noble Lord, Lord Chuter Ede. Undoubtedly the most controversial question is that of majority verdicts, so, if I may, I will deal with that last. The noble Viscount, Lord Amory, expressed views on the general subject matter of the Bill with which, if I may say so, except possibly for one or two details, I very heartily concurred. As usual, I found myself agreeing with my noble friend Lord Soper and my noble friend Lord Willis, though we must have a talk some time on justices of the peace. This idea which Mr. Gordon in the Sunday Express stimulates, that if somebody is convicted of stealing a bicycle at one place and somebody else is convicted of stealing a bicycle at another place, there is something shockingly wrong if the sentences are not exactly the same, is, of course, absolutely barmy. Obviously, you cannot express any view on this unless you know all the relevant facts, which contributors of this kind never tell you. One has to see what the previous character and record of the two people have been and, if there is a question of a fine, what their means are.
Everybody, including all judges and justices of the peace, is most anxious that sentences should be as alike as possible, but since all cases differ it is only a theoretical possibility that sentences can be alike. We are anxious, of course, that they should not be too dissimilar. The noble and learned Lord the Lord Chief Justice, as my noble friend Lord Chorley has said, has periodical sentencing conferences with High Court judges, recorders and chairmen of quarter sessions. I do the same, to the best of my ability, with regional conferences of justices of the peace, and they are always most anxious to attend meetings of this kind. Also, of course, many benches in a county get together to compare notes; and the Magistrates' Association helps, too. A great deal is being done to stop a wider disparity of sentences than is inevitable.
If I may take the Bill in order of clauses and the comments made upon them, Clause 3 deals with the Press, on which the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Denning, spoke, and in which my noble friend Lord Lloyd of Hampstead was interested. Of course this is a very old point, because it is some years

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since we had the Tucker Report. Your Lordships may remember what the Tucker Report's conclusions were. Almost always in preliminary proceedings, as your Lordships know, the defendant reserves his defence, so what you get in preliminary proceedings is a speech by counsel for the prosecution and all the evidence for the prosecution with nothing for the defence. All that is in the papers. The Tucker Report said you cannot prove that this prejudices juries against a man before his trial starts, and you cannot prove that it does not; but the Report said there is a very widespread belief that it does.
I know, of course, as the noble and learned Lord the Lord Chief Justice has said, that juries are told, "You must try this case on the evidence you have heard, and must forget all about what you have read in the papers"; and they really behave very well. But take the Moors case as an example. Whether it is good for the public or bad for the public to have all the revolting details twice over, I do not know, but it seems to me absolutely absurd to pretend that any juryman in a case like that can possibly go into the jury box without the slightest prejudice of any kind against the man in the dock. I have always thought that we ought to treat this matter as we treat matrimonial cases, putting some bar on what the Press report other than the fact that preliminary proceedings are taking place, the name and address of the man, what he is charged with, and what the result is.
If that was so when the Tucker Committee reported, and if the Tucker Committee were right in their view, then I think it must apply with much more force if the other provisions of this Bill are enacted. Because now the accused will have a free choice of saying, "Don't bother about any preliminary proceedings; I don't want any at all", in which case there will not be anything to report, or of saying, if he does not want the whole of the preliminary proceedings, "I want to cross-examine just one witness". It may frequently happen that he will accept most of the written statements he has been given of the evidence that the prosecution witnesses are going to give, and will just say, "I want to cross-examine only one person". If one were going to have many such preliminary
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proceedings reported, it seems to me that the reports would be still less fair and accurate representations of the proceedings as a whole than is the case now. I myself have always been of the opinion that the unanimous recommendations (as I think they were) of the Tucker Committee were right.
Clause 12 deals with ex-prisoners. The noble and learned Viscount, Lord Dilhorne, said—and I am sure we shall all agree with him—that it would not be right for an ex-prisoner who is summoned to serve on a jury to have to get up in court and say: "I want to be excused because I have been in prison myself." That, of course, is not contemplated at all. What is contemplated is that there will be a warning notice in the standard form sent out with every jury summons. This will set out what the disqualifications are, and it will carry a warning that if disqualified persons sit on a jury they will be liable to a fine of £100. If they are disqualified, all they have to do is to inform the summoning officer of the facts of their disqualification so that the summons may be withdrawn. An assurance will be given that the information sent to the summoning officer will be treated by him as strictly confidential. That I hope meets the point raised by the noble and learned Viscount, Lord Dilhorne.
Now may I turn to Clause 13. The noble Lord, Lord Brooke of Cumnor, inquired what was likely to happen about the Morris Committee's recommendations. The Government have already stated clearly that they accept, in the main, the recommendations of the Morris Committee, and hope to introduce legislation in due course. The reason why only this very limited recommendation is being carried out in this Bill is because most of the recommendations of the Committee apply to jurors in both criminal and civil cases. The Bill, plainly, is a criminal Bill and would not have been an appropriate vehicle with which to deal with jurors in civil cases.
Clause 15 concerns the restrictions on refusal of bail. One or two noble Lords would have liked, in the places where it is excluded, detention centres to have been included. One realises, of course, that this is a matter of opinion. The Government have so far taken the view

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that detention centre sentences are really different from prison sentences: first, because detention centre sentences may be passed for comparatively minor offences which would not merit borstal or imprisonment; and, secondly, because the regime of detention centres is quite different from that of prison or borstal. The deterrent impact of a suspended sentence will be felt by someone who has not been in prison or in borstal before, whether or not he has been in a detention centre. Thirdly, they are different because it seems wrong that a person should be more likely to go to prison because of a detention centre sentence passed perhaps years ago when he may have been no more than 14; and, lastly, because one does not want to get people conditioned to prison. Once you have been in prison you have become conditioned; whereas one who has only had a detention centre sentence has not been conditioned to prison.
Now Clauses 30 to 33: Suspended sentences. I am sure that my right honourable friend will take much into account what has been said by the noble Lord, Lord Brooke of Cumnor, the noble and learned Viscount, Lord Dilhorne, the noble and learned Lord, Lord Hodson, the noble and learned Lord the Lord Chief Justice, my noble friend Baroness Wootton of Abinger, my noble friend Lord Soper, and the noble Lord, Lord Hamilton of Dalzell. Plainly, suspended sentences are, as with most of these things, matters of opinion. The Government are firmly of the opinion that we ought now to have suspended sentences. The balance of opinion now seems to be strongly in their favour, and the introduction was supported in evidence to the Royal Commission on the penal system, by the Magistrates' Association, the Justice Clerks' Society, the Society of Clerks of the Peace, the Law Society, and the Association of Prison Welfare Officers. After all, the position we are facing is that, taking the 1964 figures of 22,500 offenders who were given sentences of six months or less, about 7,400 had not previously served custodial sentences; and of these, about 5,900 were convicted of an offence not involving personal violence or sexual assault. It may be, however, that we shall discuss that further on the Committee stage.
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My Lords, as to the Probation Service, referred to in Clauses 41 and 44, the Government will, of course, take careful account of what was said by the noble Lord, Lord Brooke of Cumnor, the noble Lord, Lord Sandford, and the noble Lord, Lord Hamilton of Dalzell. There were really two points that were made, one more so by the noble Lord, Lord Derwent, about whether we should need the prison buildings. I am afraid that is so. Whatever else we do, we shall certainly need the full building programme. The prison population, unhappily, tends to go up all the time, and however successful this Bill may be, the Government are satisfied that they will need the full extent of the building programme.
With regard to probation hostels, with which the noble Lord, Lord Sandford, was particularly concerned, this, after all, is what the Government are doing. It has not been done before, it is being done now, and we are glad that the noble Lord approves. Four probation hostels are being built to start with, and we shall go on from there. The noble Lord, Lord Hamilton of Dalzell, was concerned to know whether the amount of work being put on to the Probation Service would overwhelm it. We do not think that is so, for these reasons. There may be 750 to 1,000 releases on licence, and that would be full-time work for 15 to 20 probation officers. Under Clause 53, perhaps 800 prisoners sentenced when under 21 would provide full-time work for 15 probation officers. Under Clause 46, the provision of 5,000 extra social inquiry reports would be full-time work for 10 probation officers, which makes a total of between 40 and 50 probation officers. The present strength of the service is 2,500 and the target by 1970 is 3,500; and out of those figures the Government are satisfied that if there is a call for a further 40 to 50 it could be accommodated.
My Lords, there was a good deal of criticism about the Prison Licensing Board, but I do not suppose that any ten people, or if you had a jury of twelve, that any twelve people, would agree upon what the composition of a Board like this should be. As to local committees, if a local committee thinks a particular case is not a case for release, there is still nothing to stop the Home Office from sending the case to the Board. The noble

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and learned Viscount, Lord Dilhorne, raised a question about documents. The noble and learned Lord, the Lord Chief Justice, said (and if I may say so I quite agree with him) that there must be confidence between the Board and the Home Office. I did not follow the point about documents. If the Board want any documents and the Home Office has not sent them, the Board have only to say so. I cannot see any difficulty about that.
It was suggested that everyone ought to have the right of appeal. Everybody would could conceivably be released can always petition the Home Office. If all these people are to have a right of appeal to somebody else, then that appeal body will be swamped. It is the intention of my right honourable friend that in the case of a life sentence the noble and learned Lord the Lord Chief Justice and the trial judge would be consulted before the case goes to the Board.
On the question of composition, I was sorry to hear the noble and learned Lord the Lord Chief Justice say that there ought to be a High Court Judge on the Board. I am sure that my right honourable friend the Home Secretary would not be opposed to that; it would be I who would oppose it, because I do not know where the judges are to come from. At least some members of this Board would have to be whole-time all the year round, and, frankly, even for three months at a time, this is not the sort of work which a High Court Judge would want. These are matters which can be discussed at a later stage.
LORD PARKER OF WADDINGTON: My Lords, I understood, from what I read of the debates in another place, that the Home Secretary said that it would amount to five days a month. Even if it were more, if this is a job that a judge ought to do, however overworked and busy they are, a judge must be found.
THE LORD CHANCELLOR: My Lords, no doubt we shall have plenty of opportunity to consider before Committee stage what the total volume of work is likely to be. One or two suggestions were made in the course of discussions which seemed to me to be likely to lead to an increase of their work. The noble and learned Lord knows the difficulties which we both have in making
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the best use of our very limited judge-power in this country.
The other particular comment on this subject was that it does not seem to have been very well thought out. The Government do not think that it is a good idea. I have always thought that if we had a parole scheme, it ought to be left to the Home Secretary. So if it is thought that it is not well thought out, it is those who proposed it who did not think it out very well. Perhaps in that case they will do so before Committee stage. There are a great many difficulties about the parole scheme being worked by a Board. There will have to he local committees and so forth. But my right honourable friend was very anxious to accommodate the majority in the Committee, whatever its Parts', and he promptly accepted the idea. It may be right. There is no good then complaining that there are difficulties about it. The noble Lord, Lord Hamilton of Dalzell, asked to whom a probation officer in trouble could go. He would go to the Home Secretary, as he does now.
In regard to Clause 69, I would not venture to intervene in the dispute about shot guns, but my right honourable friend will consider carefully what was said, particularly by the noble and learned Lord, Lord Hodson, and by the noble Lord, Lord Derwent.
That leaves me with majority verdicts, on which we have had an interesting discussion. The noble Lord, Lord Brooke of Cumnor, the noble and learned Viscount. Lord Dilhorne, the noble and learned Lord the Lord Chief Justice and the noble and learned Lords, Lord Hodson and Lord Guest, are in favour of majority verdicts and about a similar number are against—all equally distinguished, no doubt. I do not understand the objection to majority verdicts. It was strongly put by the noble and learned Lord, Lord Denning, on the footing that this was a sacred English tradition: that nobody ought to be found guilty unless that was a unanimous verdict; that this was general in the Commonwealth. Even if there were eleven to one, it ought to lead to an acquittal. I cannot understand this at all.
First of all, if it is eleven to one, we do not get an acquittal: we get a new trial. I cannot understand what this general

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historic view is. Take, for example, the position in the Commonwealth. In Gibraltar, it is seven to two; in Sierre Leone, two-thirds; Malta, two-thirds; Jamaica, nine to three; and five to two in a jury of seven, where it is murder or manslaughter; India, simple majority; West Malaysia, five to two; Singapore, five to two; Ceylon, five to two—and I may say that they have had five to two since 1801 without anybody complaining about it; Tasmania, ten to two; South Australia, five-sixths; Guyana, ten to two; Pakistan, six to three; Trinidad and Tobago, seven to two—but there has been nine to three out of twelve for manslaughter arising out of a murder charge; Mauritius, seven to two; St. Lucia, seven to two. And the general report from High Commissioners is that this situation does not give rise to dissatisfaction or any demand for unanimity. Some have a one-hour provision and some have a two-hour provision; South Australia has four hours; Trinidad and Tobago, three hours; St. Lucia, two hours for eight to one and three hours for seven to two. So it is not accurate to say that we have had unanimous verdicts in the Commonwealth for years and years.
What I cannot understand is where this general idea about the necessity for unanimity comes from. After all, as my noble friend Lady Wootton of Abinger knows, more than 98 per cent. of all criminal cases in the country are decided by justices of the peace by a majority. Nobody says that benches should not send people to prison unless the justices are unanimous. If you go to the Court of Appeal, the matter may be decided by a majority; or if you appeal from a magistrates' court to quarter sessions, it may be decided by a majority. Every day of the week people are being sent to prison by justices of the peace on a majority decision. So I do not understand at all where this view comes from. I can assure the noble Lord, Lord Airedale, that the Government's view is not primarily based on the number of acquittals, though there is a general feeling among those used to our criminal courts that the proportion of obviously guilty people who are acquitted has risen a good deal in the last few years.
It must be remembered that the judge and the lawyers in the case know the
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man's previous record, which the jury do not, and usually know a good many other things about him which may not be admissible in evidence. This may have something to do with the increase in legal aid. The police and Home Office figures of the percentage of those who plead not guilty who are acquitted are around 40 per cent., excluding motoring cases.
If it is true to say, as I think it is, that the certainty of conviction is the principal deterrent ground, then this is very high. I agree, as every Englishman would, that it is much better that guilty people should be acquitted than that innocent people should be convicted. There is a general feeling among those who know best that the balance is a bit far the other way. However, that is not the main reason. The main reasons are two. The first is because of "cranks" on juries, and secondly, because of jurymen being bribed or intimidated.
So far as "cranks" are concerned, there is a great deal of mental ill-health in the country. It is not kind to refer to a lunatic fringe, but there is a great deal of mental ill-health, and I think, on the whole, it is on the increase. Particularly since the last Mental Health Act, many who would be in institutions are now at home. There are many people who have written to the Lord Chancellor every week for the past ten years. In any public office one cannot help noticing how many people, quite apart from this, are not rational.
One of our troubles to-day is that there are a number of frightfully long cases. If a case lasts a month, the Lord Chief Justice says to me, "You will have to find some other Judge for me, because otherwise the Judge on this Assize will not be able to do any of his other work at all." If you take one case, which was a recent one—a customs conspiracy case concerning limited companies—it was very involved indeed, and lasted 43 days. Those are sitting days; this means two months. The foreman said to the associate, quite properly, when asked whether they were agreed, "Isn't 11 to 1 enough?" Then consider the expense. That case cost £75,000 to retry. It did not cost the accused that, because they all had legal aid; the taxpayer was paying for both the prosecution and the defence. Take another case, in which the foreman of the jury produced a note

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to the Judge saying that 11 of the jury were of the unanimous opinion that the twelfth was not fit to sit on a jury. Such cases do occur.
I remember a civil case of a woman who had a toxic thyroid. Not long ago, if you had that complaint you died, because there was no known cure. Then they tried operating, and that was not any good. But eventually an operation succeeded. Now it is no more dangerous than having your tonsils out. But one in a hundred times, for a reason no one knows, a vocal chord is paralysed. This does not matter, because the other compensates for it, but there is that trouble. This is an action that would never have been brought if the doctors had explained things; they do not tell you what happens. You must have about a fortnight's sedation. The night before the operation the woman concerned said to the surgeon, "I do some work for the B.B.C. Is there any risk of this affecting my voice?". He had to think quickly. She had to have the operation because there was no other known cure, and if he upset her she would have had to start the sedation all over again. He said, "No".
He had done about 150 such operations without trouble, but of course it would be this one that affected the vocal chords, and she said that she could no longer shout at her husband—but you could hear her speak quite well in the witness box. But from her point of view it was quite understandable, because either the doctor's advice in telling her that it could not affect her voice was negligent, or, if his advice was right, the operation was negligently done. Naturally, when the medical evidence was given—it was the noble and learned Lord, Lord Denning, I remember, who tried the case with a jury—it was perfectly obvious that the doctors had been in no way at fault at all. The jury were out for three and a half hours; and I heard afterwards that eleven were agreed from the start, and the other was a woman who maintained that the doctors should have advised faith healing. because she was a great believer in faith healing. Faith healing had never been mentioned from the start of the case to the end. This is the sort of peril one is under.
Last year at the Central Criminal Court there were 51 disagreements. In
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five cases, when retried, there was a second disagreement. That shows that those five were the sort of cases where some people take one view and some another. In the remaining 46 retrials, 23 were unanimously convicted, and 23 unanimously acquitted. Of course, I think that judges, and some other people, if I may respectfully say this, tend to think that when there is disagreement you have about 10 or 11 jolly sensible people who want to convict and one or two idiots who want to acquit. But it is quite fair to suggest on those figures that your "crank" is just as likely to be a man who insists on convicting, when everyone else wants to acquit. So the damage that these very long trials, with one or two "cranks" on the jury, can do, and the amount which even in civil cases they can cost the parties, is enormous.
The second reason, and a more important one of course, is that referred to by Lord Willis, that we now have this highly organised form of crime. These men stop at nothing, including bribery and intimidation—and when I say "intimidation", from some cases it looks rather like torture. What my noble friend Lord Willis said was quite right.
It was, I suppose, about two years ago that a judge or two, and a barrister or two, started writing to me to say how shocked they were at the way in which juries, particularly at the Central Criminal Court, were being intimidated. The difficulty is that we cannot prove it. Somebody slides up to a juror (and it is usually the poorest juror) when he is in his front garden and says. "You are on that jury. There is £2,000 in it for you if there is no conviction—a thousand down and a thousand when it's over ". But of course he is only a "runner" and the juror does not know who the man is and he cannot be found.
In one case:
"On Monday afternoon the wife of one of the jurors came to the court in tears and the court officer, not unnaturally, asked her what the matter was. Eventually it all came out. Her husband, an Trish labourer, was followed home on the Friday night and offered £300 if he disagreed with the rest of the jury, and the alternative of a beating-up if he told the police about it. The juror knew the character of the man and had a pretty good idea what his friends were like, so he told his wife and decided to keep quiet about it. His wife had come down to look after him on his way home that evening."

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That man did in fact identify from a photograph the man who had approached him, but nothing would induce him to give evidence of it because he was so frightened. This is now the sort of situation into which we are getting.
Apart from cases in London, there have been cases in Glamorgan, Sheffield, Northampton, York and Buckinghamshire. I have details of other cases, in some of which there were repeated efforts. If a judge, having found that a juror had been approached, got rid of that juror or discharged the jury and started again, he found the same sort of thing happening with the new jurors. I hesitate to give details, because it would be difficult to do so without the cases being identified, and this itself might get somebody into trouble with a gang. This has become the sort of procedure, and in the nature of things one cannot get the evidence to prosecute because everybody is too frightened to give it. This seems to me to be serious.
Since I first considered this matter I have been strongly in favour of majority verdicts, certainly if it is 11 to 1 (which nobody seems to have considered much) and also, on the whole, if it is 10 to 2. It may be possible to "nobble" two people, but I should have thought that if one had to "nobble" three, it would, in practice, be a very difficult thing to do. I think this is the only real way to provide both against the crank and against this new form of part bribery and part intimidation.
I apologise to your Lordships for having taken so long. My right honourable friend, when he was introducing the Bill in the other place, said that there was behind it a desire to be
"… liberal and rational in its approach to the difficult and emotional questions of crime and punishment, while at the same time being directly relevant in all its approaches to the most menacing crime situation with which this country has recently been confronted.
"In seeking to achieve this twin purpose, I have tried to follow three main strands of policy. The first has been that of
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streamlining our criminal court procedure so as to enable all those concerned with law enforcement, and, certainly not least, the police, to operate within a less time-wasting framework.
"The second has been to give us a criminal law which is less concerned with observing"
the niceties
"and more concerned with arriving at the truth, both for the guilty and the innocent. The third has been so to modernise our penal system that it could better perform its triple rôle of deterrence, rehabilitation and effective custody."—[OFFICIAL REPORT (Commons), col. 53, 12/12/66.]
I believe that this Bill will achieve that object, and for that reason I know that your Lordships will, in fact supporting it in general, give it a Second Reading.
On Question, Bill read 2a, and committed to a Committee of the Whole House.