§ 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.
1431 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 1432 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 1433 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 1434 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 1435 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 1436 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 1437 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 1438 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 1439 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 1440 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 1441 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 1442 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; 1443 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 1444 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 1445 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.
1446 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 1447 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 1448 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 1449 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. 1450 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 1451 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 1452 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 1453 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 1454 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 1455 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.
1456 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 1457 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 1458 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, 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 1460 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 1461 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 1462 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 1463 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 1464 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 1465 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 1466 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 1467 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.
§ 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.
1468 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 1469 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 1471 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 1472 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 1473 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. 1474 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 1475 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 1476 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 1477 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 1478 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 1479 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 1480 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 1481 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 1482 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. 1483 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 1484 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 1485 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 1486 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 1487 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 1488 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.