§ 6.13 p.m.
§ Second Reading debate resumed.
§ Baroness WOOTTON of ABINGER
My Lords, if I may resume where I left off, I have just one or two more things I should like to say. I was trying to put to your Lordships very strongly that it will be the duty of the Prison Licensing Board to take account of the actual evidence available about the probability of different prisoners committing subsequent offences. I should like to remind your Lordships that we already have a little evidence that bears on this. When we had preventive detention, it was the 1490 duty of an Advisory Board to recommend those detainees who should serve two-thirds of their sentence and those who should serve five-sixths of their sentence.
The Advisory Board performed its functions with the utmost care and conscientiousness. It had before it information about home background, work record, criminal history and personality of the candidates for earlier release. But unfortunately it worked out that the Advisory Board might just as well not have looked at any of this information, because their results were no better than random. If they had simply tossed up to see who should serve two-thirds of their sentence and who should serve five-sixths, they would have achieved results just as good as they achieved by this extremely careful and conscientious work. But it was subsequently shown by the Home Office Research Unit that this was because they had not adequately organised the information available to them. By organising that information, and carefully noting what factors in the applicants' history proved in practice to be of good prognostic value, and what factors of poor prognostic value, it would have been possible greatly to improve the results.
In the case of preventive detainees, the results were not going to be very good anyway. There was always, I regret to say, more than a 50 per cent, chance of a reconviction. But whereas the Advisory Board failed to distinguish entirely between the better risks and the less good risks, the Home Office Research Unit was able to grade the risks so that they could indicate in which cases there was a 60 per cent, chance that a man might be re-convicted, and others in which there was a 90 per cent, chance that he would be re-convicted. This is not, of course, anything approaching certainty, but it is a considerable advance, and it is information which is absolutely vital if the Licensing Board is going to do its job effectively.
It has been said, I think by a distinguished American sociologist, that mankind has thrown away most of its experience for lack of a competent system of recording. This is particularly true of our penal system. There is no reason why it should be or need be any longer true, 1491 and the success of imaginative measures like the present Bill will very largely depend upon our putting a stop to this waste of experience. My Lords, some of the proposals I have made I know are extremely controversial and radical. In the course of my life I have supported a number of highly controversial and radical measures. I have lived long enough to see many of them put into effect, and many of them also now regarded as absolute commonplace.
§ 6.18 p.m.
THE LORD BISHOP OF EXETER
My Lords, I shall not detain your Lordships very long. I only wish to express a welcome for this Bill in general and in principle from these Benches, and to utter a particular word of welcome with regard to three of its provisions. The first is the belated abolition of preventive detention. Preventive detention failed, first, because the sentence came to be given to the wrong type of prisoner; that is to say, to the feckless, petty criminal, and not, as originally intended, to persistent serious offenders. It is greatly to be hoped that the now proposed extended sentences will not suffer the same fate. I believe that the conditions in the Bill necessary to qualify for extended sentence will in fact prevent this happening.
The second reason why preventive detention failed was because the prisoners concerned were totally unable to understand the principles upon which the Board were acting. The prisoners were bewildered and confused. They could not discover what it was they were supposed to do in order to obtain their earlier release. They could not understand why some persons were released whom the prisoners had every reason to suppose would not make a success of life in the world, and so there grew up a deep, bewildered sense of injustice. I think we must be extremely careful to avoid this happening again under the parole system, about which I will say a word in a moment.
The second Part of the Bill which I welcome very greatly is the forthright attack on the short prison sentence, and the determination to make much greater use of punishment by fine and use of the suspended sentence. I hope that this will drastically reduce the population of the prisons. I entirely agree with what 1492 noble Lords have said, that the short prison sentence is quite useless—indeed, worse than useless: it is bad because it tends not to reform but positively to corrupt. Yet there is still, I think, something to be said for the short prison sentence, though I do not often say it because I am the only person who happens to take this view. In these days of affluence, to lose one's liberty and at the same time to be deprived of one's comfort is a daunting prospect. I am a great reader of the novels of Mr. P. G. Wodehouse, and the things that Mr. Wodehouse's young men feared most of all was the prospect of "doing seven days" without the option.
If, therefore, this attack on short sentences of imprisonment were to go extremely well, and in consequence a wing or two wings in some of our local prisons became unoccupied, I should in those circumstances seek to fill them with what I might call the non-criminal offenders; that is to say, those who commit offences against the law to which no social stigma attaches. Many classes of motor and traffic offenders, persistent cheats in relation to television licences, gross offenders against the anti-litter laws, people who sit down on pavements and wait for the police to remove them and obstruct other citizens going about their lawful business—to these non-criminal offenders I think that seven or twenty days without the option in our unmodernised and, to say the least of it, rather sordid local prisons would prove a powerful deterrent; more powerful than even a severe fine.
I come now to the proposed licensing system. Ever since this Bill was introduced into another place this question of parole has been a major topic of conversation among the prisoners. It has inevitably raised great hopes and, as inevitably, it will cause great disappointment, and maybe resentment, among those whose applications are refused. It is essential that any machinery created to operate this release on licence should be understood by the prisoners, and that the prisoners on every occasion should be informed of the reasons why they have been turned down. It is most likely that the prisoner will not accept the reasons for his having been turned down, but he must be given them; and he must be given the real reasons, however damaging to his self-respect.
1493 It is essential, I think, that throughout the time of his sentence there should be a regular discussion between each prisoner and one member of the Prison Service about his progress, or lack of progress, as the case may be, so that every prisoner may know that his case is under continuous review, however remote his chances of being released on licence may be. I believe that it would be unwise to attach too great hopes to the success of this parole system. As the noble Baroness, Lady Wootton of Abinger, has said, to some extent it is bound to be a hit-and-miss affair. However much one studies the records and listens to the opinions of other people, in the end the decision is bound to have a large element of guess-work in it.
I do not believe that the scheme could possibly work without the acceptance of the proposed local review committees which, under Clause 48(5), the Secretary of State is empowered to create. I was glad to hear from the noble Lord, Lord Stonham, that apparently it is the intention of the Secretary of State to establish a local review committee in connection with every local and general prison. I think that this is essential. Each prisoner must have the opportunity of being interviewed, either by the committee as a whole or at least by one member of it. Then the composition of the committee must include somebody to represent the general public—say a magistrate—and someone to represent the local probation service, because it is on the Probation Service that the responsibility for looking after the man released on licence will generally devolve. I would say that there should also be on the committee a member of the Prison Service. I remember vividly, when I sat in on some of the sittings of the board under the preventive detention system, when the governor or assistant governor was present only as an assessor, that the committee did not seem to me to pay sufficient attention to the views expressed by the governor at particular proceedings.
As for the Central Prison Licensing Board, it seems to me that the composition proposed in Schedule 2 is probably right. I am certain that on it there must be a member of the Judiciary or someone who has held high legal office. I do not think he ought to be chairman, because that 1494 would have an adverse effect upon the prisoners, who would feel that they were, so to speak, being tried all over again. But the other classes represented in the Schedule are probably right. I am certain that the chairman will have to be whole-time and paid, and the numbers of the different categories must be large enough to enable the Board to meet if not weekly at least twice a month, because it is essential that the interval between the prisoner making his application and his hearing of the result must be reduced to the barest minimum. If the procedure gets involved in delays in the law and delays in Whitehall, it will be extremely cruel, because the man waiting to hear the result of his application—
§ LORD STONHAM
My Lords, may I interrupt the right reverend Prelate? It is not intended that prisoners should make an application or that there should be need for an application. When a man has been twelve months in prison and has served one-third of his sentence his case is automatically considered.
THE LORD BISHOP OF EXETER
There fore he knows that it is now before whatever Board it is, and he waits for the answer. All I am pleading for is that the machinery should be made as simple and as expeditious as possible, because the man will be in a state of suspense, and that has an effect upon the whole wing of the prison.
§ 6.30 p.m.
§ VISCOUNT AMORY
My Lords, the Bill which we are considering to-day is, I think many of us feel, somewhat of a mixed grill, and, as I find with most mixed grills, there are some components I like much better than others. The best ones seem to me to be wholly in line with the policies of my noble friend Lord Brooke of Cumnor when he was Home Secretary, and I am sure that my noble friend will go down in history as a very enlightened Home Secretary. I do not propose to range over the whole field, noble Lords will be relieved to 1495 hear. In fact, as regards the very important proposals in Part I, I should be wholly unqualified either to criticise or to offer alternative proposals. I have had no experience, either as a lawyer or as a magistrate, though it has been said that if only those who were qualified spoke, the world would be filled with a profound silence. I would say of Part I only that I found the speeches which have been made by noble and learned Lords against the majority verdict extremely persuasive to a layman like myself.
I should like to make a few observations on the treatment of offenders, being impressions which as a layman I formed during my eighteen months' experience as Chairman of the now defunct Royal Commission on the Penal System. I am, of course, speaking only for myself, and not for my then colleagues. I will not bother your Lordships with the reasons why the Royal Commission folded up. I suppose one of the main reasons was the doubt felt by the minority of members as to the feasibility of dealing effectively with the very wide terms of reference before us, particularly in view of the Government's having rather jumped the gun—or perhaps I ought to say, jumped my gun—with the issue of two White Papers and the question of the Commission's making a report in time to fit in with the legislative programme of the Government.
Speaking for myself, I feel that it was a pity that the Royal Commission was not encouraged to proceed with its task. I would acknowledge, in passing, that the noble Lord, Lord Stow Hill, did give us encouragement in that direction. I believe that the Commission could have produced a useful Report which, after considering the broad concepts and purposes of the penal system, could have laid down guide lines for reforms and developments on which detailed changes could be based. It is not the first time I have had a horse shot under me. I was for eighteen months a Minister in charge of one Department, and, no doubt as an alternative to getting rid of me as a Minister my Department was eliminated. It looks as if after about eighteen months my colleagues find me intolerable.
I should like to make one or two obvious remarks on the objects of the penal system and then mention some directions 1496 which I think reforms should take. The first overriding object, I suppose, of the penal system is the protection of the public from violence and injustice resulting from breaches of the law of the land. Two provisos are that any punishment or treatment meted out must not do violence to the moral consciousness of normal, decent people and as little harm as possible to human dignity. There are broadly three ways in which the penal system operates: deterrence; incarceration—that is to say, removing the offender from circulation—and, lastly, reform or rehabilitation. Punishment, unlike retribution or vengeance, is legitimate as a deterrent, subject to the provisos I have mentioned. In fact, in almost any operation of the penal system some element of punishment is bound to be involved. But I think we all agree that the effects of punishment must be carefully watched. It is a blunt instrument and its effects can be quite counter-productive, and by itself it is seldom effective.
As regards deterrence, I found during the time I was on the Royal Commission that research could tell us very little, objectively or statistically, about the effects of various deterrents. The reason, obviously, is that one is dealing with a subjective matter, and what deters one has little influence on another. One view which I thought prevailed quite clearly was that the most effective deterrent of all is the certainty or extreme likelihood of detection. One can be sure that most of the obvious deterrents—the fear of exposure, the moral disapprobation of one's fellow citizens, conviction, loss of liberty and monetary penalties do have considerable deterrent effect, but how much absolutely or relatively it seems very hard indeed to measure.
I think we should all agree that incarceration is unavoidable when the protection of the public requires the offender to be kept out of circulation and possibly for some forms of treatment. But imprisonment, by itself, is not only negative but, by removing from the offender the exercise of self-discipline, is apt to conflict disastrously with the object of reform and can be wholly destructive to the sense of responsibility. In going round prisons—and as a layman I had never done so before—I found that the worst 1497 feature was not the severity or the hardship of the regime—I found very little evidence of that—but, on the contrary, the rather soul-destroying inertia and lack of challenge involved in the wholly artiticial of the inmates. The conclusion to which I think one must come is that complete restriction of liberty must be a treatment of last resort, and only those who must be should be kept in prison under conditions of full restriction of liberty. There is plenty of evidence today that our overcrowded prisons are cluttered up with considerable numbers of offenders who need not be there. That has been the theme of most speakers today. I am entirely in favour of those provisions of this Bill which recognise this and seek alternative forms of treatment.
What categories do not appear to need incarceration in the security of a prison? Examples have been quoted to-day and I can only summarise some of them: alcoholics and debtors, most of those sentenced for short terms and most petty persistent offenders and inadequates. Surely the aim must be to get these out of closed prisons whenever possible and to devise alternative forms of treatment which would allow them to continue to earn their living, and, as far as possible, fulfil their normal responsibilities. In the case of the persistent offender and other inadequates it may well be that they should earn their living under adequate supervision. I very much welcome the provision in Clause 15 which is aimed at reducing the number of accused who are remanded in custody.
It is clear that much thought and experimentation must be given to the problem of devising alternative forms of punishment and treatment which involve less than full restriction of liberty. Here I find myself convinced that the principle of financial restitution could, with advantage, be brought back prominently into our penal system. In these days of the so-called affluent society, hire-purchase commitments, often over relatively long periods, are part of everyday life. The exploitation of the principle of financial restitution, accompanied no doubt by a power of attachment of earnings of all kinds, would often open the way to forms of deterrents and punishments which would enable certain types of offenders to remain in circulation as earning mem 1498 bers of society, fulfilling their family responsibilities. In many cases, too, fines should be far higher, and one is very glad to see the proposals in this Bill for raising them. Whether they go far enough is another matter.
I now come to the joint questions of greater flexibility in sentencing and release on licence. It seems to me that if we take seriously that the object of treatment should be to turn the offender into a law-abiding and responsible citizen, then we must accept three conclusions. The first is that the treatment should be progressive—that is to say, graduated steps leading progressively back to full liberty—secondly, that the form of treatment must be tailored to the needs of the individual; and, thirdly, that these considerations will often involve modification of the original sentence in the light of the response of the individual to the treatment he has had. Therefore, one concludes that there must be a possibility of a greater element of indeterminacy in the original sentence. In that regard, some form of release or partial release under licence is highly desirable.
As regards the greater flexibility in sentencing, there are various alternatives, and the one that is incorporated in this Bill is the suspended sentence. I should have thought that was excellent, though I find myself in agreement with my noble and learned friend Lord Dilhorne in doubting whether it is right that it should be made mandatory. I should much prefer that it was not mandatory. But I welcome the suspended sentence, and I think other forms of indeterminacy in sentence should be investigated further and considered.
As regards release on licence, this concept is wholly in line with the principle of the progressive treatment of the individual. It is one step in a graduated series of steps, but it is a very important one involving the question of liberty or its reverse. The present system of fixed remission for good conduct seems neither wholly satisfactory nor sufficient by itself. Therefore, I find myself entirely in favour of the extension of the system of release on licence under supervision.
I am glad that there is to be a Licensing Board. Possibly even regional panels will be required, though I do not know the 1499 numbers which would be involved. But I should have liked it to be even more independent of the administrative authority—the Home Secretary—than it is. Such a Board would no doubt reach its decisions after giving full weight to the recommendations of the prison authorities, who have direct knowledge and experience of the offender's conduct, character and reaction to treatment. But I think the administrative authority which is responsible for the prisoner's supervision and incarceration should not also he responsible for the decision involving his release or otherwise.
If a really serious attempt is to be made to restrict imprisonment to those cases which positively require retention behind walls, then it is clear that great efforts must be made to extend the various forms of open institutions, hostels, sheltered employment and freedom under supervision. These all call for a high degree of co-operation with the public, who must understand the difference between offenders who are a serious menace to society, and those who are only a relatively minor inconvenience. If it is found possible, as I should have thought it was, that the result of policies of this kind might be to get out of prison about a third of those who are at present there, and to keep them fulfilling their normal responsibilities under an appropriate degree of supervision, then that would be a magnificent bit of progress to achieve. Then, as a byproduct—though, as the noble Lord, Lord Stonham, said, not the main reason for doing this—it would give a much better chance of dealing effectively with the smaller number who must, for one reason or another, be kept in conditions of high security; and probably many of them should be kept in conditions of greater security than is possible to-day.
I said that I would not range over the whole field though it is terribly tempting to do so, and I ask your Lordships' indulgence if I have waffled a bit freely already. I welcome the Bill with the exceptions which I have mentioned, as edging generally in the right direction. It is not an inspiring document in itself, but if one adds some of the bits and pieces together the general theme can be identified, and it is one which I should have thought we should wish to support. 1500 It may be that in this complex field, in which the results of research do not yet offer much positive guidance, it is necessary to proceed by a series of cautious steps in the light of day-to-day experience. I think we must be humble enough to realise that we do not yet know enough about the psychology of human beings to be dogmatic in our judgments about what deterrents are effective and what forms of treatment are most productive.
I remember hearing a lecture by a very distinguished penologist who ended with these words:In the result, success often seems to depend more upon Mother Nature and Father Time than on anything in particular we have done.That is a sobering thought, and there may be some truth in it. But I do not wish that remark to be interpreted as meaning that attempts to devise a more effective penal system are doomed to failure. I feel exactly the contrary. I believe that we should feel encouraged, and we must not let up in our efforts to work out a system in which deterrents and treatments can be devised under which the unnatural and destructive conditions of closed prisons are reserved only for those who must be kept there for the protection of the public. So far as this Bill contributes to that end, it is to be applauded. It seems to me a kind of ostrich-size curate's egg in which the good parts clearly outnumber the dubious parts; and I, for one, welcome it very much.
§ 6.49 p.m.
§ LORD SANDFORD
My Lords, I have been told by the usual channels that this is a convenient moment for me to speak, and I hope that is so. In a House as richly furnished with lawyers as ours is, particularly to-day, I want to keep well clear of the courts and to deal mainly and briefly with Part III of this Bill—"Treatment of Offenders"—and to some extent to follow my noble friend who has just sat down. Before I do so, I should like to deplore with others the fact that the Royal Commission over which my noble friend presided has been dissolved. There is a good deal to be said for proceeding by practical expedients, but I feel that in this particular field we need to proceed also by the evolution of longterm policy rooted in soundly-based doctrine—and this is what we lack.
1501 However, I start my remarks with the view that I believe is generally shared: that the main object in the treatment of offenders is to reform them so that at the end of the treatment they do not offend again. I know that some feel that we should look to the treatment to deter. Perhaps sometimes it can, perhaps sometimes it does; but in general—and no one has argued this more cogently than the noble and learned Lord who is now the Lord Chancellor in the debate on Penal Reform which he initiated about three years ago in your Lordships' House—it is a high and rising conviction rate, leading to a real fear of getting caught, that deters more than the treatment which would follow if there was a conviction. So in general, I submit, we can look to the police and to the courts to deter, to the Prison Service and the Probation Service to reform.
There are many—and I am among them—who feel that the law-abiding citizens of this country already suffer more than enough inconvenience, loss, damage, injury and even torture at the hands of our worse criminals, and we therefore do not want to do anything which adds to the hazards from which they already suffer. There is no reason why our people should put up with any more injury and loss than they already do. They indeed deserve the fullest protection that the law can give from those who menace them in this way. But there really is no need to keep 35,000 people incarcerated in prison to provide this protection for the public. That protection would be provided, and I hope will be provided, by locking up quite small numbers of really dangerous prisoners in properly secure prisons.
This is the point, of course, to which the noble Earl, Lord Mountbatten of Burma, addressed himself and reported upon in Cmnd. 3175. He mentioned that accommodation for 120 people only would be sufficient to cater for the really dangerous criminals; and I think that earlier on the Association of Prison Officers had given it as their view that only 5 per cent. of the present prison population—something like 2,000 people—needed really high-security prisons. If that security is provided for really dangerous criminals, then much greater liberties can be taken with the rest, with little or no hazard to the public. In any case, the public will be sub- 1502 jected to some hazard as prisoners are discharged at the end of their terms, as they will be in any case, whether they are judged to have been reformed or not.
But even when the relatively small number of potentially-dangerous criminals are safely locked up out of the way, far too little that is effective and positive in the way of reform can be done in our prisons in the overcrowded and obsolescent state they are in to-day. I would entirely agree with the right reverend Prelate in his suggestion that in their present state they would indeed prove a considerable deterrent to the class of criminal that he cited, but as institutions in which positive reform can be undertaken they are failing badly and inevitably, even with the best will in the world on the part of the Prison Service. The words of the Home Secretary during the Second Reading of this Bill in another place on December 12, 1966, at column 64, are therefore fully understandable. He said:The main range of the penal provisions of the Bill revolves around the single theme, that of keeping out of prison those who need not be there"—and, indeed, some of its clauses certainly do that.
The new powers the Home Secretary proposes to give to the courts in Part II to deal with offenders—the much higher fines, the restrictions that he lays upon courts in imposing prison sentences in certain cases—all have that effect; but the provisions of Part III, on which there has been considerable debate this afternoon, do not have the effect of keeping offenders out of prison. The clauses relating to release on licence take out of prison some people who have already been there for a year or more; and as we have already found, they raise very tricky issues as to who is to come out, who is to go back in, and how the whole system is to be operated.
But worse still, in my view, the operation of this system will place very heavy new burdens upon the Probation Service, which at its present strength of around 2,500 and at its present recruiting rate, is none too well placed to undertake them. I hope that when he comes to wind up for the Government the noble and learned Lord the Lord Chancellor will be able to reassure us that the Probation Service can 1503 in fact handle the burden that is to be laid upon them; or, if they cannot, that the Home Secretary will not make more than slight use of this provision. If it is the Home Secretary's desire to keep out of prison people who need not be there, and if the Probation Service has the resources to help in this, surely the better policy would be to provide further alternative places of custody, as my noble friend Lord Amory has just recommended, particularly more hostels and institutions of that kind, and to encourage courts to make more use of them rather than sending people to prison.
In order to come to a judgment on this I think we want to know much more than the noble Lord, Lord Stonham, has so far told us about the Government's plans as to probation hostels. How many do they propose to provide? How many have they in fact started? What grants are they currently making available to the voluntary bodies who are prepared to establish them? What are they doing about the difficult problem of staffing them, and so on? I do not think that the courts would need very much encouragement to use probation hostels if more were available. Most magistrates to whom I have spoken about this would welcome the opportunity of putting offenders on probation with a condition of residence in a probation hostel if they thought that there was the slightest chance of it being practical to implement such a sentence. In fact, I believe that the only effect at present of awarding such a sentence is to involve a wretched probation officer in ringing round all the 40 probation hostels in the country, only to find that none of them has any room for the offender who has been awarded such a sentence.
§ LORD STONHAM
My Lords, may I interrupt the noble Lord? I think he is under something of a misapprehension, and it may be that he is mixing up aftercare hostels with probation hostels for adults. There are no adult probation hostels in the country at the moment at all. We propose to provide them. The only probation hostels as such which are now available are those for young persons.
§ LORD SANDFORD
I was aware of that fact, and also of the fact that it was 1504 the Government's intention to provide probation hostels for adults. I was hoping that we would hear more about this to-day, because all these proposals for release on licence and for the provision of probation hostels involve the Probation Service in new and additional burdens. Surely the time has come to increase substantially the provision of institutions of the probation hostel type, and to plan the provision around the country on a more rational and regional basis. The plans that have been outlined in the Home Office Circular 46/67 relating to aftercare hostels are a good indication of the way in which this could be done. It would be interesting to know whether it is also going to be done in the case of probation hostels for young offenders and probation hostels for adults, when these are provided, and at the same time to make more sensible arrangements for getting these hostels properly used.
In the Morrison Report of 1962, Cmnd. 1800, I do not believe that a study of sufficient depth was made of the potential demand for this sort of penal institution. In any case, the time has come to review it. Everyone agrees that a major rebuilding effort is involved before we can get our stock of penal institutions right. Second only to the provision of top-security prisons, with the protection of the public in mind, I would put the provision of probation hostels and similar institutions with the reformation of the offender in mind. The cost of providing custodial accommodation by building hostels will not be much greater than that of building larger penal institutions, and it may be less. But the cost of running them will certainly be considerably less. Such figures as I have been able to obtain from the latest reports of the Probation and Prison Services indicate that offenders on probation with a condition of residence in a probation hostel cost the taxpayer something like £5 per head per week. Prisoners cost the taxpayer something like £13 per head per week. I do not think there is any question at all about where the more positive reform takes place.
I mention all this now on the Second Reading of the Bill because I fear that in his zeal—his very natural zeal—to try to reduce the prison population by means of "release under licence", the Home Secretary will use up manpower in the 1505 Probation Service and voluntary effort available in the community in looking after ex-prisoners whose reform is difficult and doubtful, whereas were more probation hostels to be provided, these same resources could be used far more effectively to deal with offenders whose treatment is easier, and where the chances of reform are far higher. Of course, one would like to be able to deal effectively with all classes of offenders. But this is simply not practicable at present. The Probation Service is short-handed and already overloaded; the Prison Service is short of staff and the prisons overcrowded.
So what are we to do? Do we try everything and do none of it particularly well? Or do we pick out some priorities and do one or a few things really adequately? I say that we should concentrate on the younger criminals, those of under and around 21 and try to check them early in their criminal careers. Whenever it is safe and suitable—and I am not recommending any of this for dangerous criminals or those who use violence—let us put them on probation in probation hostels under that flexible degree of custody and supervision which this system provides. I believe it provides a good chance of reform for far more offenders than are at present able to use the paltry 700 places that are available.
Hostels are far more suitable than prison for the prisoners whose offences arise from taking drugs or getting drunk. It enables offenders to remain in employment; it requires them to contribute to their own maintenance, and it could, if we had the necessary legislation, require them to contribute to the restitution and reparation for any loss they have caused. It costs the taxpayer less than half as much as it costs to send a man to prison; it keeps the offender out of harm's way and away from his criminal associates; and yet it does not impede any useful and helpful support that the offender can receive from his family. Furthermore, it eases the strain on the Prison Service, and in this way meets the desires of the Home Secretary by reducing the flow of offenders into prison. I believe that this is the policy which, far more than "release on licence", will not only make the work of the hard-pressed prison officers easier and more effective, but also the policy which gives the equally hard- 1506 pressed probation officers the best possible chance of turning the hearts of the disobedient to the wisdom of the just.
§ 7.5 p.m.
§ LORD DENNING
My Lords, there is a great deal in this Bill that is excellent. I will not take up your Lordships' time by going through it in detail, except to say how welcome are the provisions that written statements should be admissible, that the defence should give notice of an alibi, that there should be parole boards, and the like. But I would raise two matters which are matters of high constitutional principle. I will first refer to the question of majority verdicts. In this country, for over 600 years juries have had to be unanimous in their verdicts. That principle is fundamental to our constitution and it has been taken by settlers from this country overseas to the United States, to Canada, to Australia, to New Zealand and other parts of the world. Nowhere has that principle been whittled away.
It is now suggested that it should be taken away here, and I ask myself: What is the reasoning behind the principle? I believe it is founded in our fundamental rule that no man is to be found guilty unless he is proved so beyond reasonable doubt. If one juror—or even two—has doubts, doubts that cannot be resolved, then it is right that the accused should be found not guilty. For what a great question is posed if the verdict be not unanimous but of a ten—two majority! Is there not a question whether the accused is guilty? Or if the accused were acquitted by a ten to two verdict is it not questionable whether he may after all, have been guilty?
In the days before capital punishment was abolished no one would have entertained this proposal for one moment. No-one would have thought it safe to hang a man on a verdict of ten to two, or of eleven to one. And the introduction of this suggestion can be traced directly back to the abolition of capital punishment. But the reason for the principle of unanimity is not in its application to capital punishment. The reason is that no man should be convicted unless he is proved guilty. Let me remind your Lordships how it started in 1367, when the Judges of Assize went to Northampton, 600 years ago this year. In a trial then, one juryman stood out: the eleven others were in 1507 favour of convicting. The Judge told the dissenting juror that he would commit him to prison unless he agreed with the eleven; the juror said: "I would rather die in prison that give a verdict against my conscience." The Judge accepted the verdict of the majority, of the eleven, and the case was brought before the King's Judges here in London. All the Judges held that the verdict of the eleven was no verdict, because no man was bound to give a verdict against his conscience.
My Lords, six hundred years have passed and never has that principle been challenged till now. I have been around the circuits of England. All the people know it. Only once have I been asked by a jury: "Should we be unanimous?" Everybody knows it. Are we to depart from it now? What is the evidence for doing so? As I have said, it is only since capital punishment was abolished that this change has been suggested. When the noble and learned Lord, Lord Morris of Borth-y-Gest, presided over his Committee on the jury system, the terms of reference were almost wide enough to include this matter, certainly to embrace it on the fringes. No one suggested that on the evidence a majority verdict should be accepted. Indeed, the figures given in Lord Morris of Borth-y-Gest's Report in 1965 showed that the number of disagreements were minimal.
And how were these cases dealt with? The problem to-day is said to be the danger of bribery and corruption or, indeed, the occasional "crank". They were dealt with in the old days quite simply: the jury were kept together without food or drink until they were agreed. They were kept even through the night; indeed, right up until this century they were kept together from the beginning of a case to the end so that no one could tamper with them. Only in this century has the rule been mitigated. Even until the 1940s, or the 1930s, in a murder case they were always kept in a hotel and kept together, and when the occasional disagreement occurred there could be, and was, and is, a re-trial. My Lords, that is how the matter has been dealt with in the past. I agree that nowadays we could not expect juries to be kept together and not to go home at night. Only in the most exceptional circumstances, would that arise. Surely the right way to deal 1508 with it is not to take away our old principle but to deal with the briber or corrupter, or the person on the jury who is bribed or corrupted, as we have machinery to do—although it may be difficult to find out about the bribery or corruption.
My Lords, as nothing was suggested before 1966, how has it all come about? I am afraid that my noble and learned friend the Lord Chief Justice was under a misapprehension when he said, "I can safely say that all judges would be in favour of majority verdicts". In March of this year he consulted 37 Queen's Bench Judges, including himself, and the Home Secretary gave us these figures. Of those 37 Judges, 25 were wholly in favour of majority verdicts: two had not sufficient experience to be able to express a real view, and eight were wholly against them.
§ LORD DENNING
The eight were against majority verdicts. I could tell your Lordships who would be with me in thinking that we ought to keep our principle of unanimous verdicts—some of the wisest and most experienced of the judges. I do not include, of course, those who speak with me or are with me in this House. But there are other members of the legal profession who have dealings with juries. The 27 Queen's Bench Judges are not the sole repository of wisdom and experience. There are recorders, chairmen of quarter sessions, Judges at the Central Criminal Court and the County of London Sessions and the like. But this is not a matter to be dealt with by a tally of heads of Judges to see whether or not they think it right that we should have majority verdicts. This is a far more important step, and one that should not be entered upon except after due inquiry and research—and that is what we have not had. Before we reverse a principle which has existed for 600 years we should have statistics and evidence. I do not wish to say more about this Part of the Bill.
1509 There is one other Part, also a matter of principle, about which one can feel some anxiety; that is the Part relating to proceedings in open court before magistrates. Hitherto, for a hundred years the Press has been able to attend magistrates' courts and to report their proceedings. Every court of law is open to every subject of the Queen. It is one of the safeguards of justice in our system that courts should be open, available to all: not only to those who would repeat outside, by word of mouth, what happened, but also to the newspapers so that they can report what happened. It is suggested that there is a danger that a fair trial could not be had, or is not likely to be had, if preliminary proceedings, committal proceedings, are reported. My Lords, my experience is that juries go by the evidence in the case before them. Even in the case of Doctor Bodkin Adams, he was acquitted.
The proposal for majority verdicts is another great change, but there is not the same criticism that I could make of it. Lord Tucker's very experienced and good Committee reported wholly in favour of it, so there are not such strong grounds for any criticism that I could make. Nevertheless, I would urge that a provision for majority verdicts should not be included in the middle of a Bill dealing with criminal procedure. We ought not to alter such a high constitutional principle—at least not until there has been further and due inquiry.
§ 7.16 p.m.
§ LORD PARKER OF WADDINGTON
My Lords, I rise to join with others in welcoming this Bill. It is often said that lawyers, and particularly judges, are reactionary creatures; they do not welcome any change at all. It has even been said that the reason there is so little reform is that there are so many lawyers in another place. But this Bill contains provision after provision which is welcomed, I think, by all those who have concern for the administration of criminal justice. Numbers of provisions have been referred to, and there are many more which are small in themselves but which are most welcome—power to couple probation with disqualification for a driving offence; the extension of conditional discharge from twelve months to three years; the ability to con- 1510 vert a probation order after a period into an order of conditional discharge. These are matters, one may say, of detail, but of the greatest importance to those who are concerned with the sentencing and treatment of offenders.
I think there is hardly a topic in this Bill of which I do not wholly approve. It is only when one comes to the details and the machinery that I think there is room for improvement which may be made in your Lordships' House. Those who have taken part in this debate have, one after another, dealt almost wholly with majority verdicts. That is clearly a matter of great controversy; it is bound to be debated at some length at a later stage. For my part, I propose to adduce no arguments on it at this stage, but merely to say that I am wholly in favour of majority verdicts, not only from the standpoint of a judge but as a matter of principle.
There are one or two matters which I think will have to be looked into with some care. The first arises in committal proceedings. I think that everyone welcomes Clauses 1 and 2 of the Bill, in that their provisions will relieve hard-pressed magistrates of a very considerable burden. A great deal of time and expense will be saved. But when it comes to Clause 3, dealing with restrictions on reporting, then, like my noble and learned friend Lord Denning, I do not feel that the case is made out for any restriction upon the Press. It seems to me that in those cases (and we all hope there will be few) where the defence opts for a full hearing with oral evidence, they ought to take the full publicity which exists at the moment. It has always been a cardinal principle that justice must be done, and can best he done, in the full glare of publicity. Only the paramount cause of an unfair trial would be a matter for curbing publicity.
With all respect to my noble and learned friend Lord Tucker, I would point out that his Report itself says that no one can say—in other words, that the case is not proved—that juries are ever influenced by what they have read. I think that to-day juries are perfectly capable of accepting a strong direction from a judge to the effect that it is no good pretending that they have not read all about it, but they must put it out of their minds and decide the case on 1511 the evidence presented in court; and so far as anybody can tell, no judge has had any difficulty in getting juries to adhere to that direction. Again, that seems to me to be a matter which will form the subject of considerable debate.
I welcome the provision to encourage magistrates to grant bail rather than remand in custody, and I most sincerely welcome Clauses 16 and 17. Heretofore it has been idle to make a condition or extract an undertaking, because there is no way of enforcing it. One can purport to make a condition of bail that the accused is not to leave the country; but if next day a policeman sees him getting into an aeroplane on the South Coast to go to France, there is no power whatever to restrain him. Now, thanks to Clause 17, if that becomes law, such a condition can be enforced. As a matter of detail, I am a little worried whether Clause 15(5) is wide enough. I think it needs to be looked at again with some care and in particular paragraph (a), where a magistrates' court is not bound to put a person on bail if he is subject to imprisonment for a term of not less than six months and has been previously sentenced to imprisonment or borstal training. It seems to me clear that "detention centre" ought to be added. Otherwise, we get the extraordinary position that a youth who has been sent to a detention centre for six months need not be put on bail, whereas one who has committed exactly the same offence, but because no vacancy can be found has been sentenced to six months' imprisonment, cannot be put on bail. It seems to me that detention centre ought to be added in that exception.
Turning to suspended sentences, with the power to put on probation and the power now to give a conditional discharge for three years, I very much doubt whether there is any room for the suspended sentence. It is said that it is more effective because the sentence is stated, but I think that most judges—certainly I have always done so—in putting a man on conditional discharge say that they have been minded to give him twelve months imprisonment but on thinking it over propose to give him conditional discharge. The judge explains what that is and says that if the man commits another offence he will be brought back 1512 and punished for this one, and he has heard the sort of sentence the judge has in mind. It is rather ironic that only this morning I was in touch with one Province of Canada where they have suspended sentences and they are thinking of abolishing them. They were amazed when I told them that there was to be a debate in your Lordships' House this afternoon about whether we should have that system. But I welcome any weapon that the courts will have at their disposal in dealing with crime, even if that weapon is never used. Therefore I do not object to this provision as a matter of principle.
What I do object to, and what has been said already, is the mandatory suspended sentence in subsection (3) of six months or less. Experience has always shown that a mandatory sentence produces great difficulties. It produces great anomalies, as the noble and learned Viscount, Lord Dilhorne, pointed out. He gave the case of what might happen to two brothers, one under 21 and the other over 21. One can think of a number of anomalies and difficulties which would arise. There is a great temptation that some magistrates' courts, faced with the fact that if they exercise their powers they have to give a suspended sentence which is limited to six months, will commit a man to quarter sessions in the hope that he will get nine or twelve months. We should all thoroughly deplore that attitude, but I think it would be inevitable.
My approach to the matter is that magistrates generally will take every conceivable step before sending anybody to prison. No doubt there are black sheep in the family—I do not know—but the many records I see of young men who have a mania for taking and driving away cars, or driving while disqualified or uninsured, show step after step taken by the magistrates before finally, on perhaps the fifth or sixth occasion, they send a man to prison. Now, on the sixth occasion, because they have been so lenient in the past, all they can do is to be lenient again and give a suspended sentence. It worries me. It seems to me that magistrates ought to have a discretion. They are trying not to send people to prison if it can be avoided, and if there are some who tend to act otherwise, then it is a matter of training and educating those magistrates.
1513 The idea that we should impose upon them a mandatory fixed sentence of this sort is certainly one of which I do not approve. If we are to have a provision for a mandatory suspended sentence, the clause must be looked at in some detail. This sentence need not be given in certain circumstances which are set out in subsection (3), and when we get to paragraph (e) we find it need not be imposed if the accused has been sentenced to imprisonment or borstal. Again it seems to me that "detention centre" ought to be added. But I would go further and say that in this provision there should be an addition to cover dangerous driving, driving while unfit through drink or drugs, and driving while disqualified. These are the prevalent offences with which magistrates are dealing, and in the illustration I gave of the typical record it seems to me that the time has come when they must say that they have taken every other step and now the defendant must go to prison. I should like to see paragraph (e) widened.
Finally on this subject, if a suspended sentence is to be effective it must be as near automatic as possible if an offence is committed. We all agree that it cannot be completely automatic. Subsection (1) of Clause 31 shows quite clearly that this is the intention, because it says:and a court shall make an order under paragraph (a) …"—which provides that the suspended sentence shall take effect subject to the court's opinion on certain matters. That, it seems to me, is the right approach. But I should like to add there, in order to emphasise this point, that if the magistrates are minded to make an order otherwise, they should be compelled to state their reasons in writing. The position is rather like that of the "special reasons" which may enable a driver to escape disqualification for a road traffic offence.
I come, lastly, to the matter which I think will require careful consideration, and that is the machinery for the release of prisoners on licence. The general idea is one that I think we all accept, and certainly many of us have advocated it for a long time. It is a complete anomaly that somebody undergoing a life sentence can be released at any time on licence, subject to supervision, whereas a man sentenced to a fixed term cannot be released on licence, subject to supervision, in that way. His sentence may be remitted as 1514 an act of the prerogative, but he cannot be let out on licence. Therefore, I thoroughly welcome this provision.
I welcome, also, what has now been incorporated as a Government Amendment; namely, the setting up of an independent Board. I appreciate that this has been done rather at the last moment, and the details have not been thought out. I think it is in this area that your Lordships' House can make a most valuable contribution. If one goes first to the Constitution, the noble and learned Viscount, Lord Dilhorne, referred to the provision in Schedule 2 that one member of the board should be:a person who holds or has held judicial office".I feel strongly that that person ought to be somebody of the standing of a High Court Judge. As a pure matter of constitutional issue, this is a case where the liberty of the subject is very much at stake: not only the liberty of the man who is then being considered but also, inevitably, the liberty of all the others who have not so far been looked at. On that ground alone it seems to me that somebody holding, or having held, high judicial office ought to be on the Board.
Secondly, despite what is sometimes said about High Court Judges, I think that, by and large, the public—and, oddly enough, above all the prisoners; that is undoubted—do have some confidence in the Judges. Although there is not a judicial inquiry in the strict sense, there are quasi-judicial proceedings which will involve the weighing of evidence and matters of that sort. For those reasons, as I say, I feel that somebody of the standing of a High Court Judge should be on the Board. I should add this—although one hates to say it. If this plan is to succeed, there must be confidence between the Judiciary and the Board. In Canada (I do not think it matters my saying this) they are at loggerheads. The Judiciary are saying that the Board let people out when they, the Board, think that the Judges have given too long a sentence, though that is nothing to do with the function of the Board. They also think that the Board are being too lenient. In such circumstances there is a grave danger that judges will double and treble the sentences in order to make certain that the one-third that has to elapse before a man is eligible for 1515 consideration will be a long period. Nobody would deplore more than myself any tendency towards that; but it is a tendency that has been shown by experience to exist in other countries. I think it only right to say that if one member of the Board were a High Court Judge there would be complete confidence, and any danger of that sort would not exist.
My Lords, I am sorry to occupy so much time, but this question of release is an important one. The powers of this Board, as I understand it, are certainly not as wide as they should be. Incidentally, theirs will be a majority verdict: I do not think there is any doubt about that. But under the clause as at present drafted all the Board are allowed to do is to look at such documents as the Secretary of State chooses to send to them. I cannot think that that is the function of this independent Parole Board. The matter comes to them after going through two sieves—first the local review committee, and finally the Home Office—and all they are being allowed to do under this Bill is to look at such documents as the Home Office send them. It is making a farce of their powers.
Surely they must be entitled, if necessary, as the noble and learned Viscount, Lord Dilhorne, said, to send for the transcript: if the case has been to appeal to get the transcript on appeal; to consult may be the Judge, or somebody who has been concerned in the case. Supposing there is a mental element, cannot they call for the report of the psychiatrist? They have a psychiatrist member on the Board. Cannot he say: "We have this opinion, but I think we ought to see the author of this opinion and cross-examine him"? Under the Bill all they are entitled to do—though I feel that this is only because this matter has not yet been fully thought out—is to look at such documents as the Home Secretary may send them.
Then, when one comes to the local review committee, all that is said in subsection (5) is:The Secretary of State may by rules make provision for the establishment and constitution of a local review committee.Should not the constitution of that committee, like that of the Board, be incorporated in the Bill? We are told that the local review committee will consist 1516 of the governor, a visiting justice and a probation officer. But, whatever the constitution is to be, ought it not to be set out in the Bill? I think it is this first stage which in many ways is the most important. This machinery is bound to give rise to dissatisfaction in the prisons. The very fact that somebody is being chosen and somebody is not is bound to give rise to dissatisfaction. And that dissatisfaction will be vented on the governor. The prisoners will feel that they are in the hands of the governor. Incidentally (this is only a by-product), I do not like the name "Prison Licensing Board". I am looking at it from the point of view of the prisoner. He will I say: "This is the prison; this is the governor. That is what is behind it all. It is not an independent Parole Board, but a Prison Licensing Board". Be that as it may, I think it is most important that we should decide what the constitution of the local review committee should be.
Finally there is the question whether there ought not to be, if the governor is to be, as it were, in the chair, some method of appeal by a man whose name has not been put forward; maybe a direct appeal to the Home Office, because otherwise there will be the most intense grievance—"Jones has been chosen and I haven't." If one goes to the parole board in other countries, I think one finds that the parole board itself chooses, and every prisoner has access to it. It would be quite impossible in this country, with 4,500 people, as is said, being eligible every year. No board could in fact investigate each of the 4,500 cases. Therefore, there has to be a sieve, or, as is now suggested, the two sieves. But something must be done, I think, to prevent the dissatisfaction of the man who has never surmounted the first hurdle at all, and whose name therefore will never go forward.
Now I may have misunderstood this point, but I think it is a curious feature. Whereas the short title of Part III is:Treatment of offenders: Release of prisoners on licence and supervision of prisoners after releaseI do not believe there is any provision in what follows for supervision of the prisoners. There is certainly no provision that it is to be done by probation officers, which I understand it is. That, perhaps, is a matter of detail, but I should like 1517 to add my very strong conviction that this Part of this Bill, if it becomes law, should not be put into operation until the Home Secretary is quite clear that the strength of the Probation Service is sufficient. It would be lamentable if this attempt failed at the outset because there was insufficient manpower to enable it to have a chance; and from the Probation Service's point of view this is very alarming.
There are 4,500 prisoners eligible every year for consideration. Presumably the probation officer's report will have to be obtained in each one of those cases. He will have to make inquiries as to the home conditions and, if a prisoner was considered for release and released, where he would go. It is a tremendous task. On top of that, those who are in fact released, which may be something like 500 or 750 in the course of the year, must be supervised. As I think probation officers will tell any one of us, it is one thing to supervise a delinquent youth at the parting of the ways, but quite a different thing to supervise a sophisticated, highly dangerous criminal who is now thought to be safe to be at large. It is a formidable task. I think a different technique is involved, and it ought not to be undertaken until the Probation Service is really strong.
§ LORD STONHAM
My Lords, would the noble and learned Lord allow me to point this out? He himself suggested a figure of 500 to 750. If it was fifty cases per probation officer it would not be a terribly heavy case-load. That would be ten probation officers—not an enormous number compared with the 2,500 we now have in the Service. I would assure him that, so far as these extra burdens are concerned, they have been taken into account with regard to our programme of recruitment and training.
§ LORD PARKER OF WADDINGTON
My Lords, I thank the noble Lord. I only hope that this is not the proverbial straw, because this unfortunate Service, which performs such admirable work, has more and more, day after day, put upon it. They are dedicated men, and therefore pay, though important, does not matter to them so much, perhaps, as to others. But for myself I wholly fail to see how a substantial addition is to be made to the Probation Service, and 1518 a constant addition in the sense that wastage will not eliminate it altogether, unless these unfortunate men get more pay. I am afraid I am using this Bill, perhaps, as a platform for that, but I do feel very strongly. A principal probation officer for the whole of the London area, with his enormous administration, gets less than a local authority librarian. It is really ludicrous. The trouble is that the local authorities have their own welfare officers and similar work, and they are depriving the Probation Service by paying so much more for very much the same sort of work. I sincerely hope that something will be done to build up the Probation Service in that way.
My Lords, may I mention lastly one comparatively minor point. Your Lordships will remember that, during the Committee stage (I think it was) of the Murder (Abolition of Death Penalty) Bill, your Lordships' House agreed to a clause which provided that there should be no release of a man from life sentence without consultation with the Lord Chief Justice of the day and the trial Judge if available. I confess that I had in mind then the hope that that task would be taken over ultimately by a parole board. However, perhaps I should be flattered to see that, in Clause 50(1), provision is made in the case of life sentence prisoners for not only the parole board, as I choose to call it, to be consulted, but also the Lord Chief Justice of England and the trial Judge if available. One is flattered to think that our opinions are worth having, but I venture to think that, if they are, that would not be the stage at which to consult them.
In these cases the local review committee will have recommended release, the Home Office have recommended release, they have sent them forward to the parole board, and the parole board have recommended release. It is difficult to think that the opinion of two Judges would be of very much use at that stage. It seems to me that any consultation with the Judges that takes place should be by the Home Office before the matter is remitted to the board; and if the Judges disagreed with the proposal that the Home Secretary desired the name to go forward, then it would go forward with, included in the purpose, the purpose of 1519 the Judges. My Lords, I am sorry to have taken up so much time. These are largely Committee points, but I feel, certainly in regard to the parole board, that it is useful to mention it at this stage, because I am sure the provisions as to its constitution and powers and the working of it can be vastly improved.
§ 7.48 p.m.
§ LORD HODSON
My Lords, in welcoming this Bill I should like to add my thanks and congratulations to the noble Lord, Lord Stonham, for the manner in which he has presented it. I propose to confine myself to only one or two matters. I have been privileged to listen to this debate, and I think that everyone who has spoken has made a valuable contribution. The subject in which I am particularly interested—it has interested me for many years—has been touched on but not discussed at great length, and that is the suspended sentence.
I do not think everyone in this House fully appreciates the real point of the suspended sentence. I speak with deference in the presence of the noble Baroness, Lady Wootton of Abinger, who is a very eminent criminologist and no doubt knows more about this topic than I do. But the sursis, the suspended sentence, was introduced in France and Belgium at the end of the last century; and there it meant, and still means, what it says: that you get a sentence which is suspended over your head like the Sword of Damocles, and it descends when the thread is broken by your committing an offence which qualifies you to suffer your fate.
In this country we have not been willing to accept that kind of punishment. Over the years the Magistrates' Association has discussed it, but I think the general consensus of opinion among magistrates has been that they would rather have things left as they are. They prefer to have a discretion at the end of a period, such as is covered by the conditional discharge, to decide what should be done. But the real point of the suspended sentence, if we are to have it all, is that there should be no discretion for anybody to exercise at the end of the period. That makes it a most valuable weapon for what I might describe as the "corrigible" offenders.
1520 May I take it that many of your Lordships have committed motoring offences in the past, and many more will commit them in the future. You are just the sort of people who are suitable for suspended sentences; but if you offend again, let the sword fall! Let it not be said that there is discretion in somebody before whom you appear that you should not suffer the punishment! We may not like the idea, but I think if we are going to have this principle at all, that is what we ought to have. I think that my noble and learned friend the Lord Chief Justice feels the same difficulty about accepting the suggestion in this Bill. It is really a "wishy-washy" suggestion, if that is not too strong an expression to use. You are adding nothing to the conditional discharge, except this: that you are telling a man in plain words, as the judges normally do to-day, what he ought to have in a suspended sentence; but under this proposal you have got to do it. In the case of a conditional discharge, I suppose that in a general way the man thinks that he has got off, whereas under a suspended sentence he will not be so apt to think that.
I do ask the Government to consider again whether it is really worth while introducing the suspended sentence unless they are prepared to ask the country to accept the Continental sursis with its full force. The idea behind it, I think, is that the suspended sentence is given to the man I have called the "corrigible" offender as a favour to him, as it were. It is a punishment which is inflicted in order—in part at any rate—to satisfy the public desire that punishment should be given where it is deserved, while so far as the offender is concerned the fact that this thing is hanging over his head acts as a deterrent to him in his personal capacity. That is all I want to say about that.
I do not propose to discuss the vexed question of the majority verdict. I am a "majority verdict" man. I have no great qualifications, but I have not been as impressed as the noble Viscount, Lord Amory, apparently was by the somewhat impassioned speeches, as if it were one of the great traditions of our country that we should have a unanimous verdict. I think it has been described as "part of the Constitution". I do not quite see why. We have majority 1521 decisions by magistrates, and majority decisions in this House, and nobody says it is dreadful that the opinions of the minority should be ignored. I do not see why the same should not apply in crime, especially as in Scotland and in the Colonies the majority verdict has been running for years. In Scotland I suppose it has been running as long as our own system, though I do not speak with any knowledge of that. The time to discuss this point, I suppose, will be at the Committee stage, when no doubt we shall hear my noble and learned friend Lord Denning again. I must say that he shook me, because I had always thought of him before as an ardent reformer. Now he seems to have become a backslider into the past. This seems to be a new face for him altogether and I shall not recognise him so easily.
There is one other matter on which I wish to comment. From my own acquaintance with people in the countryside where I live I know that there is a good deal of talk about shot guns, and I am rather afraid that this idea of licensing shot guns is not going to be particularly good. I am very much averse to putting additional work on the police, as no doubt your Lordships are. There is a tremendous amount of work connected with this, and in any event the burglar does not want the sort of shot gun your Lordships use. What he wants is a sawn-off shot gun, and he will not get a certificate for a shot gun; he will steal yours and saw off the barrel. What good the licensing will do I confess I am in some doubt. With that slightly unimportant matter I will conclude by asking those responsible for the Bill to have another thought about this shot gun business, to see whether it really is worth while making the police spend much more time with pens in their hands instead of being out and about on the beat.
§ 7.58 p.m.
§ LORD LLOYD OF HAMPSTEAD
My Lords, I am inclined to express general support for the provisions of the Bill. It is, of course, very much a miscellaneous provisions Bill, but for all that this does not preclude its containing much of great value. As the hour is getting late, I propose to confine my remarks to a few words on two topics.
1522 The first of these is the question of committal proceedings, and this seems to me to be a most valuable and sensible reform. Some time ago the noble and learned Lord, Lord Devlin, said that at present what we have is an elaborate procedure whereby the evidence is transferred from one piece of paper on which it is already recorded, to another piece of paper on which it is recorded again. Although of course we cannot totally abolish committal proceedings because we need them in order that a judicial body should be satisfied that there is a case to go for trial, this can generally be done just as well by a written statement as by oral evidence.
More controversial is the question of reporting these proceedings in the Press. I am in favour of reporting judicial proceedings as a general matter, as no doubt we all are, but I suggest that this is not just a battle of freedom for the Press. Unfortunately, as one knows, certain sections of the Press have a passion for sensationalising everything that seems good to them for that purpose, and I think in some cases this can lead to injustice. Surely, therefore, it should be enough that publicity is given to the actual trial itself. Full Press publicity occasionally has to yield to other considerations, and this is by no means the only example. There is, for instance, the case of juvenile proceedings, and also the case of the Judicial Proceedings Act 1926, so there is nothing extraordinary or novel about this; and I think the case put forward by the Tucker Committee was well made out. This Bill substantially gives effect to that Committee's recommendations.
The only other point about which I wish to say a few words is one which has been very much before your Lordships throughout this debate. I refer to majority verdicts. I shall try to keep my remarks as brief as possible. The first thing I should like to say in this connection is that I entirely echo the sentiments of the noble Baroness, Lady Wootton of Abinger, when she said that what we need here is a great deal more research into the actual function of the jury. Some research of this kind has been carried out in the United States of America, but in this country there has been virtually none at all. I should have thought it was clear that the jury has an essential role in the administration of justice. I would venture to disagree 1523 with the suggestion of the noble and learned Lord, Lord Denning, that there is any high constitutional principle involved here. So far as the exact conditions under which a jury operates are concerned, these are not sacrosanct; they are matters of technique, whether we have any particular number in a jury or whether it goes by majority or whatever it may be.
But the really cardinal point, surely, is that if we have an institution of a particular kind and it has worked extremely well over a very long period, then there is a heavy onus on those who seek to change it in some important and material particular to make out their case. The case that is put for this far-reaching change—though, as I said, I do not regard it as a matter of constitutional principle, it nevertheless is a far-reaching change—is mainly on the ground that in some instances there has been corruption. Though it is agreed that the number of cases is probably small, the important point is made that this does affect serious criminals. Of course it is not practicable at the present day to hold juries incommunicado as they used to be. But surely the position is that where you have these gentlemen sometimes referred to as "big fish", who are likely to be able to exert themselves to corrupt juries and have the resources to do it, such cases are comparatively easily identifiable, and precautions can be taken to try to prevent these things from happening. It is said that this will involve a great many policemen, and indeed that is clearly so. But even if this measure is passed, you will still have to take precautions, you will still have to be careful to see that juries are not corrupted where there is some reason to fear that this may be so. So the argument that you will have to deploy a lot of police in such matters does not seem to have a great deal of force.
It seems to me that on the other side there are comparatively strong arguments in favour of unanimity. In the first place, unanimity is one of those things which increases public respect for the verdicts of juries; and, secondly, the question of the exact size of the majority is a somewhat arbitrary matter. Indeed, if we are going to proceed on the basis of having majority verdicts, there seems no 1524 ground in principle for resisting the suggestion of a simple majority. Although I appreciate that it is acceptable in Scotland, which has a rather different tradition in these matters from our own, do not imagine that anyone arguing in favour of majority verdicts in this country would argue in favour of a simple majority to replace our present unanimity.
Lastly, and in many ways perhaps the most important, there is the point that if you introduce majority verdicts to a considerable degree you remove the power of the minority to argue the case the other way. Because of this, it may lead, at any rate in some instances, to wrong convictions. An attempt is made to meet this point in the Bill by the two-hour rule, but this seems to be a very artificial rule and one which may easily bring the whole system into contempt, if juries have to sit around for a couple of hours, when in fact they have decided the case as between 10 and 2, simply because the judge has told them, "I cannot accept that verdict until you have had two hours to deliberate". Some of your Lordships may recollect having seen a rather impressive American film called Twelve Angry Men which turned on this very theme of a single juror being convinced of the innocence of the accused as against the other eleven, and the film dealt with the whole episode in the jury room and the way in which that one man eventually turned the eleven round. That must be a very exceptional situation; nevertheless, it points to the possibility of people being wrongfully convicted, and the avoidance of this is surely a very important feature in our system of justice.
Therefore, on balance, it seems to me that, quite apart from any constitutional principle, the case for a change of this sort has not been made out. I do not regard the question of unanimity as necessarily part of the mythology of the jury, as it has been put in some places. It seems to me, however, that the unanimity principle is on a sensible basis, and it is one which should not lightly be set aside unless there are the most compelling and cogent reasons against it. Accordingly, while in principle I give my warm support to most of what is in this Bill. I remain unconvinced at present regarding the merits of the provisions of Clause 11.
§ 8.6 p.m.
§ LORD SOPER
My Lords, in adding, even at this late hour, my congratulations to my noble friend on his presentation of the Bill and saying how much I personally welcome it in general terms, I daresay I can also speak for the majority of the Christian organisations in this country. I know I can speak for the British Council of Churches, which, in the opinion of the sponsors of this Bill, has already rendered valuable service and has given them great encouragement. It is a good Bill, and though it has miscellaneous characteristics and I suppose for Free Churchmen and Churchmen generally would not be regarded as a companion volume to Bunyan's Grace Abounding, it would nevertheless be regarded as a first chapter to his other great work Pilgrim's Progress.
There are backgrounds to this Bill which in my judgment ought to be included in any comprehensive survey of its Second Reading. What is the backcloth to this Bill? It is the undoubted increase, large increase, in the number of criminals in prison. It is the suggested increase in criminality generally. Of the first there is no doubt at all—35,000–6,000 more than in 1964. It is a large increase and it is a serious increase. If it represents an increase in criminality generally, this Bill has tremendous significance, or ought to have, in endeavouring to face some of the problems created by this new situation. I do not know whether this is so. But there are more people alive to commit crime, and more crimes they can commit if they are so minded. I have not the information—adequate research has not been undertaken to provide it—to decide whether we are worse than we were; but we are bad enough, in all conscience, and the serious attempt this Bill makes to deal with some of the problems must be welcomed by people of good will and by the Christian Church. I welcome it for the Christian Church for another reason. It has an emphasis on reformation rather than deterrence and so to me is far more consonant with an ultimate Christian principle.
Finally, in this Bill, in general terms, though it has been described as a hotchpotch and a series of miscellaneous items, I can detect, I hope not unfairly, certain broad impulses which are welcome. The first is the impulse, the attempt, in the 1526 Bill to keep as many people as possible out of prison. I believe that is right, because I have no use for prison at all ultimately, and though obviously it cannot be a matter of immediate practical politics to get rid of the prison system, I believe it is irremediable and my own 15 years' experience as a prison chaplain has confirmed it. I think imprisonment is nasty, brutish, and ought at least to be short. And finally I can find no justification for the principle enshrined in the whole prison ethos. I know this demolition of the whole system of prisons cannot be done in a stroke and ought not to be attempted except by due process, but I welcome most heartily the attempts being made to keep as many people as possible out of prison, in attendance on the time when we can abolish prison altogether and substitute the hostel system or something other to which I may come later on.
With regard to the question of short sentences, I do not believe they have done anybody any good and I believe they have done a lot of people harm. The suspended sentence, with due deference to what seemed to me to be a very reasonable and cogent argument on the part of the noble and learned Viscount, Lord Dilhorne, the increasing of the opportunity of bail, the increasing of fines, all these are good; and I am much impressed by evidence that comes from across the Channel, and therefore may be of increasing interest to us as the days go by.
I want to quote accurately M. Morice, who is the Director of the French Penal Institution—that is as near as I can get to the phrase: it may be slightly different from that. He is interested in, and has drawn up a survey on, the question of suicides in prison. It turns out that every other day somebody tries to commit suicide in a French prison, and as a result of his inquiries he has come to the complete and final conclusion that the vast majority of those who attempt to commit suicide do so either in the first stages of their imprisonment or after a long term of imprisonment.
It seems to me that his argument is the kind of argument which is supported, at least within my own recollection, by the traumatic conditions that belong to short sentences, and the utterly useless waste of time which they provide. Therefore, in general terms, how heartily do I welcome 1527 the provisions in this Bill which seek to prevent people from getting into this kind of environment, the prison environment, which does them no good and may, indeed, form for them a pattern which is evil! I also believe that this is true of the very long sentence, and the evidence from the French suicide inquiry backs up this view to a certain extent. The results show also that a large percentage of those who attempt to commit suicide do so in the despair of a long sentence.
I am committed to the belief (I cannot argue it in full at this time of night) that any sentence of over four years, if it is not enlivened by hope at the end of it, and is not in some way made remedial and reformative by access to normal conditions, as well as to a prison cell and the yard—indeed, the whole accoutrement of the prison—is likely to destroy some quite essential dimension in the prisoner. I do not believe that long sentences, unless they are spaced out with much more generous and much more humanitarian methods, such as would be found in hostels, are compatible with the Christian faith. I certainly do not believe that they do any prisoner any good. Therefore, in this general sense, in noticing in the general provisions of the Bill, the attempt to keep people out of prison, how heartily do I agree with the Bill!
The Long Title of the Bill refers to it as, among other things, a Billto make further provision for…the management of prisons…I find that this is not fulfilled in the Bill, and this is where my major criticism of the Bill can be found. I welcome heartily the abolition of corporal punishment in prisons, having had to minister to those who have been the victims of corporal punishment, and having also had to come to terms with the psychological results and the often perverted reactions of people to corporal punishment. I am quite sure that corporal punishment in prisons, let alone outside prison, is an enormity.
But there are other conditions in prison which are just as bad, and I should have hoped that by this time a far more serious attempt would have been made to deal with this execrable problem of three or two in a cell. I find that three in a cell is generally, from the sexual standpoint, preferable to having two in a cell, but where there are 9,000 of either two or 1528 three in a cell—and I know the size of the cell, as no doubt do some others of your Lordships—I find this an intolerable situation, and I have every reason to think that the depravity which is likely to be consequent upon such a kind of incarceration is out of all proportion to the efforts which could be made.
We should demolish Pentonville, which is a stinking hole—and I say that advisedly; there is no way of getting rid of the smell. The same is true of Wandsworth. They ought to have been demolished, and I think would have been, just before 1939, had it not been for the war. They are monstrosities. They have no useful purpose, even if open prisons have. If we are talking of the management of prisons, then I firmly believe that one of the essential characteristics of any move in the right direction would be the demolition of this kind of prison and as quickly as possible.
I turn for a few moments to a matter of interest which was raised for the first time only just now in this debate, the question of firearms. If it be true that a sentence of death "concentrates the mind", I would delay your Lordships for a moment to remind myself, and perhaps to persuade you, that there is nothing which concentrates the minds of many people so much as the possession of a gun in their pocket. So long as you have a gun you are not thinking of other methods of defence. The gun is an occupational attitude. I believe that it is perfectly right that shot guns should be included, even if they can be sawn off. Inasmuch as it has already been represented in the course of this debate that the firearms matter goes rather widely, let me go a little more widely still. I should like to see the total abolition of all toy guns, because I believe they create much the same kind of reaction as an actual gun itself does. It is an interesting comment that in the Soviet Union it is illegal, and attracts a large fine—and, in the last resort, a prison sentence—that toy guns of any description should be sold to or possessed by children.
I should like to see the total abolition of the manufacture and sale of pistols and revolvers. I have never been able to be persuaded that a pistol serves any useful purpose, even in sporting and farm conditions, which could not be better served by a shot gun. The prevalence, 1529 as I happen to know as a practising social worker, of the ideology of the gun and the kind of violence which has increased have a great deal to do with the gun in the pocket which induces by its very presence an attitude to life that I consider deplorable. And if we are bidden "not to cause occasions of stumbling", then this seems to be one of the most promising of all the general attitudes of this Bill, and I hope that it will go a lot further than it does.
One last comment. I believe most heartily in the general intention of this Bill to transfer the emphasis away from the prison cell to the hostel. I have some little knowledge of how this can be done with regard to alcoholics. I would ask my noble friend to tell us a little more about this when and if he can. There are many kinds of hostel. There are hostels for the drunk. How ridiculous it is to send a drunk to prison! What a waste of time of the drunk and of the prison authority! I should like magistrates to remember that they can insist, as a term of probation, that a man who is put on probation because he has been drunk and disorderly gives an undertaking to keep "off the bottle" entirely. That was omitted from one of the recent Bills, but it is still at any rate a possible injunction.
But what I am most concerned about is the immediate prospect. If, as indeed is true, we are suffering from an overworked Probation Service, with not a great likelihood that they will recruit as many as we want, then, as has been indicated in the Bill, there is a place for voluntary hostels. To bring the matter up to date, I would undertake, in the mission where I work, to purchase, if the Government provide the money, a hostel immediately, and include it in the kind of alcoholic work that is now being undertaken. I say that because I am sure that I am not unique in this feeling. I am sure there are many Christian organisations who are a little tired of asking the question, "Is God dead?" and who would like to move on to something a little more practical. One thing they might do is to combine and co-operate in this most adventurous and, I think, hopeful attitude of this Bill. One reason, above anything else, why I regard this Bill as hopeful, and as leaning pre-eminently in the right direction, is that it includes the proposal 1530 —though it has not yet been amplified and implemented—that there should be, in an attempt to deal with the delinquents and the prisoners, this general transfer to the hostels in place of the outworn, useless and completely unjustifiable prison system.
§ 8.20 p.m.
§ LORD GUEST
My Lords, in rising to take part in this debate I feel most conscious of the accusation of inter-meddling in what is primarily an English Criminal Justice Bill, in matters which really do not concern a Scots lawyer. On the whole, I firmly think that it is not right for Scots lawyers to try to import into an English system Scots principles. May I say that I also hold the vice-versa view. I think that there is good and bad in both systems. It is usually found that the system of law is suited to the particular country, so I think that the motto "Gang warily" is a very wise one in what in other fields is regarded as a cross-fertilisation procedure. But sometimes when an innovation is suggested in one system of law, and that innovation has been the accepted practice from time immemorial in another, it may be not unhelpful to know what the experience of that other country is and what in fact happens. I say at the outset that I feel nothing but surprise at the outcry which has been raised against the proposals in Clause 11 in regard to majority verdicts. But I refrain from expressing surprise, and I speak purely in this matter as amicus curiae. Therefore, it may be helpful if I give the House some of the history and a little of the experience which has been gained in Scotland in regard to majority verdicts.
A bare majority verdict of 15 jurors has been established in Scotland since the year 1534, even in capital cases. What happens in fact is that in his charge to the jury the judge reminds them that they have three verdicts open to them —a verdict of "guilty", "not guilty", or "not proven". He tells them that unanimity is desirable but is by no means necessary, and that they can return a verdict by a bare majority at any time. When the jury return after their deliberations the clerk asks them, "Members of the jury, what is your verdict?". If their verdict is one of "not guilty", then that is the end of the matter. And that, I think, is a difference from the proposal 1531 made in Clause 11 of this Bill, to which I will refer later. If the verdict is not guilty, then, as I say, that is an end of the matter, and no question is asked as to whether it is by a majority or unanimous. If the verdict is "not proven", similarly no question is asked as to whether it is by a majority or unanimous. If, however, there is a verdict of "guilty", then the clerk proceeds to ask the foreman of the jury, "Is it unanimous or by a majority?", and accordingly the verdict is recorded, "Unanimous" or, "By a majority". But the extent of the majority is not disclosed, and that is the end of the matter so far as the jury are concerned.
It seems obvious to a Scotsman that there are very great advantages in such a system. In the first place, you never have a retrial on account of disagreement—and a retrial is unsatisfactory both in regard to the public and to the accused. The verdict of the jury is final, and the case is not reopened. In Scotland, up to the present moment the safeguards have been considered adequate; namely, the establishment of a Court of Criminal Appeal in 1926, and that if an appeal is taken, then the fact that the jury have returned a verdict by a majority is something which the Court of Criminal Appeal can take into account—but, of course, they do not know the extent of the majority. I have endeavoured to get statistics from Scotland to ascertain the figures of majority verdicts, but unfortunately these are not available. The general impression is the rather interesting fact that up to ten years ago the rule was that unanimous verdicts were really in the majority. In the last ten years there has been an increasing tendency for majority verdicts to be returned. The reason for that I cannot explain, and I do not think it is easy to explain.
It has been said in another place, and perhaps it may be said here, that the distinguishing feature between Scotland and England is that in Scotland corroboration is required before a verdict of "guilty" can be returned. One witness is not sufficient; there must be corroboration by facts and circumstances. In my humble judgment, this really has nothing to do with the question. It is entirely a separate matter as to the degree of proof which is required, and as to the extent 1532 of the majority which is necessary. The reasons for the difference between the two verdicts have been variously explained, though never very satisfactorily. I was interested to observe that Hallam, an English historian, described the unanimous verdict as:That preposterous relic of barbarism".I suspect the reason was that in times far gone by judges used to compel jurors to return a verdict—not necessarily a verdict of "guilty", but that they were enclosed until they returned a verdict, it may well be that the unanimous verdict has sprung from that. In Scotland, on the other hand, verdicts have mainly been arrived at by what was called "the sense of the meeting". It was not thought at all anomalous that there should be a minority of the jury who were not in favour of a verdict of "guilty," and that did not in any way prejudice the verdict of the majority.
What I think is significant is that, so far as I am aware—and so far as anybody I have discussed the matter with is aware—there has never been any complaint or suggestion of unfairness throughout the whole history of the matter in Scotland since the 16th century, since that system has been regularly in operation. What I think is more significant, however, is that the Scots Law Commission, which has invited complaints, representations or observations on reforms has, so I am informed on the authority of the Chairman of that Commission, received no observations or suggestions on the system of majority verdicts. One would have expected that, in the 400-odd years which have passed since 1534, if there had been anything unfair or unreasonable in majority verdicts it would have shown its head. The presence of a Scots Law Commission was an opportunity for the public to register protests, if there were any.
In conclusion, I wish to refer to one matter which is perhaps a matter for the Committee stage, but which may be worth mentioning at present. I indicated to your Lordships that in Scotland when the jury returned a verdict of "not guilty", that was an end of the matter. As I understand Clause 11. it contemplates in England that there should be a verdict of 'not guilty by a majority", if that was in fact the verdict of the jury. I thought the noble Lord, Lord Stow Hill, 1533 made a very good point when he said that no man would feel that he had been cleared of a charge if the jury returned a verdict of not guilty by a majority.
It seems to me to be quite unnecessary to complicate the matter in that way, and perhaps the Government would give consideration on the Committee stage of the Bill to alter Clause 11 in such a way that the only case in which a majority verdict would be announced would be where there was a verdict of "guilty". It seems to me quite unnecessary where there is a verdict of "not guilty" that any question should be raised whether it is unanimous or by a majority. If the verdict is one of "not guilty, then whether it was because the desired majority was not obtained, or because the whole of the jury were in favour of "not guilty", the man would have a clean sheet. Subject to that alteration, I would firmly support the clause.
§ 8.30 p.m.
§ LORD HAMILTON OF DALZELL
My Lords, I join with, I think, every other noble Lord who has spoken in commending this Bill in general. It is true that it is a very mixed bag and that it does not attempt to introduce a number of reforms which are generally accepted as desirable; but I think it will be more profitable for me to concentrate on what is in the Bill rather than on what might have been, and I think that every proposal in the Bill is based on a good idea, even if in detail they may not all quite hit the nail on the head.
I propose to confine myself primarily to consideration of the Bill from the point of view of the Probation and Aftercare Service. May I first say that a number of the minor provisions seem to me admirable. These include the provisions about bail in Clauses 15 to 17, and those about probation and discharge in Clauses 41 to 46. Indeed, two clauses which have been introduced since the Bill was first published meet points which have been raised by the National Association of Probation Officers—Clause 43, which allows courts to substitute an order of conditional discharge for a probation order; and Clause 46, under which courts may be obliged to consider a social inquiry report before imposing a prison sentence. This last one is something about which the Probation Service feels very strongly, and it will cheerfully accept any 1534 additional burden which may result. I was very pleased to hear the explanation of the noble Lord, Lord Stonham, of the intention of Clauses 79 and 80, which I am afraid had not been clear to me from reading them. Of course, I fully support anything which is designed to stimulate the development of hostels and the use of volunteers in after-care.
I have some reservations about the proposal in Clause 37 to empower courts to enforce fines by attachment of earnings orders. These do not work very well in enforcing maintenance orders, except when the person himself finds it convenient, in that it saves him trouble and avoids the temptation to spend his money on something else. Otherwise he is apt to get out of it simply by changing his job, and that is not something which one wants to encourage among the sort of people who are likely to incur fines for criminal offences. Furthermore, an order involves disclosing to the employer that the man has been fined, and this may also have unfortunate consequences. These snags would be overcome if the P.A.Y.E. machinery could be used. The tax authorities could be informed of the deductions required and the employer would simply receive notice of a change in the man's tax code, which, of course, goes with him wherever he goes. I concede that there may be administrative snags to this proposals also, but I should like to know what they are before the idea is dismissed.
Next I should like to say something about suspended sentences. I have great sympathy with the motives of this scheme, and of course it will help with the general aim of reducing the number of people going to prison. I understand that it works well in other countries, although the noble and learned Lord, the Lord Chief Justice, has expressed a different view. But I am not sure about its being satisfactory in the context of our system.
In the first place, I think it will pose a dilemma to a court which has to deal with someone under suspended sentence who has committed a further offence. The court must take into account Clause 31 of the Bill, which lays down the general principle that the suspended sentence should be imposed unalteredunless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended 1535 sentence was passed, including the facts of the subsequent offence.If it is of that opinion, the court may vary or ignore the suspended sentence. But how should that proviso be interpreted? The whole basis of suspended sentences, as I understand it, is that the offender shall be in no doubt of what will happen to him if he offends again. But if they are rigorously enforced, then very often they will be unfair or unjust. On the other hand, if they are regularly varied on account of altered circumstances, the whole thing will lose its point and will have no obvious advantage over a conditional discharge or indeed a probation order.
That brines me to a further anxiety in the minds of probation officers: that courts may see this as an easy way out, saving, trouble both for themselves and the Probation Service, and may use the threat involved in a suspended sentence as a deterrent in cases where a probation order would have been better. For these reasons I am, on balance, against the suspended sentence, and this is something which I regret, since one of its most active proponents has been a colleague of mine on the bench on which I serve—a man whose sincerity I very greatly respect.
Now I turn to what is to me the most important part of the whole Bill—the release of prisoners on licence, or parole. I think that this is a very fine idea, quite apart from its incidental advantage of easing the congestion in prisons. But the detailed application of the idea is far from easy and the Bill will have to be considerably improved if it is to be workable. First, I should like to say something about the principle of parole. The present one-third remission is based on behaviour in prison, without reference to possible behaviour after release. It is, I think, well-known that intelligent professional criminals, if they are unlucky enough to get caught, make the best prisoners. They have the sense to understand that the best course is to be a model prisoner and earn the maximum remission, so as to get back to the practice of their profession as soon as possible. Only the most inadequate or unstable prisoners are foolish enough to misbehave to the point of forfeiting their remission while in prison.
1536 The new scheme for remitting a further third of the sentence is based on a different principle—not behaviour in prison, but the prognostication of behaviour after release; certainly a more logical criterion, but one very much more difficult to assess. And if the basis of the scheme is that men shall be released on parole who seem to have the best chance of success outside, is it not a weakness of it that those men will have the benefit of supervision during what would have been the rest of their sentence, while the worst risks who are not thought likely to succeed outside will serve their normal term and then get no supervision at all?
The original version of the Bill gave no indication of how this difficult task of assessment would be carried out. It simply said that the Secretary of State may release on licence. As it now reaches us it is rather more explicit, but I still cannot say that I am altogether happy about it. The proposal now is that there shall be a local review committee for each prison, which will review the cases of those eligible for parole and report to the Secretary of State. He will select from the cases recommended by those committees those which appear to him suitable for release and refer them to the Prison Licensing Board, which will then advise him whether or not to release them.
This shuttling to and fro seems rather peculiar. How will it work out in practice? The composition of the local review committee is not laid down in the Bill, but the Home Secretary has said that it will probably consist of the prison governor, a senior probation officer for the area and a member of the board of visitors. This raises a further question. Will the governor make the decision about what shall be recommended after listening to the advice of the other members, or will the committee operate democratically with the view of the majority prevailing? I hope the latter.
The Bill gives the Secretary of State power to make rules for these committees but, like the noble and learned Lord, Lord Parker of Waddington. I think we ought to know how the Government intend that they should carry out their duties. In any case, one would have thought that a member of the Prison Welfare Service would have been more useful than a local senior probation 1537 officer. In a prison where there are enough prison welfare officers to justify the appointment of a senior prison welfare officer, he would be the obvious person. Although, admittedly, a senior prison welfare officer in a prison is still a rarity, one hopes—and I am encouraged by what the noble Lord, Lord Stonham, said today—that that situation may be improved.
As the Home Secretary said in the debate in another place, and as the noble Lord, Lord. Stonham, said again to-day, the Prison Department has constantly to take decisions about what happens to a prisoner; whether he should be moved from one sort of prison to another—for example, from a closed one to an open one—or should be selected for the hostel scheme, and so on. Ideally, this should be done by a case committee consisting of those concerned with all aspects of prisoners' progress, including prison welfare and after-care, and this would surely be the right body to consider suitability for parole as well.
The proposed local review committee seems to be rather an ad hoc body assembling from time to time to consider the cases of a batch of prisoners. It is suggested that the prisoner will not appear before the committee, but that the senior probation officer member will interview him. I think that, inevitably, the prisoner will assume that this is the man who will, in fact, make the decision about his release.. This seems likely to create very tense situations in prisons, with the prisoner whose date of eligibility for release has come up waiting anxiously for his interview and then for the decision ultimately to come through—followed, of course, by bitter disappointment for those not chosen. Relationships would certainly be difficult even under the system that I have suggested, but at least the process of assessment would be a continuing one, with no new people or bodies coming in to heighten the tension.
Anyway, what happens next? The committee sends its report, presumably with recommendations, to the Home Secretary; the Home Secretary eliminates those he cannot approve—I suppose on grounds of overall policy, national security or something of that sort—and then he sends the rest of the names for consideration by the Board. The Board then lets the Home Secretary know which 1538 of these it recommends, and the Home Secretary gives instructions for them to be released. I think I have that right. It seems to me to involve a great many bites at the cherry; and it is a little difficult to see on what basis the Board will reconsider the recommendations of the committee as pruned by the Home Secretary. After all, the committee will be in the best position to form an opinion, and it will be very discouraging for them if their recommendations are much altered at the two subsequent stages.
Now a word on the question of supervision of men on parole. As the noble and learned Lord, Lord Parker of Waddington, pointed out, the Bill says nothing at all about this question of supervision, except in Clause 49, where it says:A person subject to a licence…shall comply with such conditions, if any, as may…be specified…But it has been generally assumed—and the noble Lord, Lord Stonham, has said to-day—that the intention is that men on licence shall be put under the supervision of a probation officer. Will all men on licence be under supervision, or will some be released without any form of supervision? And if it is the intention that all should be under supervision, would it not be better to say so in the Bill? The supervision of men so released is, of course, a duty which the Probation Service willingly accepts in principle, although whether it could take it on at its present strength is another matter. Here, may I say how grateful I am to the noble and learned Lord the Lord Chief Justice for what he has said about the Probation Service in this context?
But the relationship between the man on licence and his supervising officer will clearly be an extremely difficult one, and the officer will need all the support he can be given. To whom will he report? In probation and after-care he has his local case committee, and he can regularly discuss the progress of his clients with people whom he knows and who share with him responsibility for their future. Presumably with parole he will report through his principal probation officer to the prison department in London, which may seem to him, by comparison, rather remote and comfortless.
His responsibilities become even more worrying when the question of revocation of a licence arises. And here again the 1539 Bill is extremely vague. It simply says, in Clause 51, that the Secretary of State may recall a man to prison on the recommendation of the Prison Licensing Board or, in urgent cases, without consulting the Board. But on what information will the Secretary of State base his decision? I suppose the answer is, "On the reports he receives from the supervising officer," and if the reports are had enough to justify it the police will eventually be sent to pick up the man and take him back to prison where he will, under Clause 51(3), have the right to make written representations about what has happened to him. Surely this cannot be satisfactory.
In the first place, can the supervising officer hope to establish a proper relationship with his client if the client knows that the officer has the power to make direct recommendations for his recall to prison? That cannot be a good basis for mutual understanding, which is essential if the supervision is to do any good.
§ LORD STONHAM
My Lords, will the noble Lord say what precisely is the basic difference between that procedure and that which now obtains, under which, if the man or boy on probation is not carrying out the terms of his order satisfactorily, the probation officer has to report him with a view, possibly, to his being sent to prison?
§ LORD HAMILTON OF DALZELL
My Lords, the noble Lord is referring to the person on probation, and I was just coming to that. What I was going to ask was: is it right to have a system by which a man can be put in prison by an administrative order, even if he is still technically a prisoner, without any opportunity of being heard in his defence or of confronting those who would put him away? Surely it would be better if the whole business of recall were done through the courts, on the same basis as breaches of probation are now handled, and as was provided for also in Schedule 3 to the Criminal Justice Act 1961, which is now being repealed.
In that case a man could be brought before a court by a supervising officer if he was in breach of his conditions. Or if the supervising officer had lost touch with him he could ask the court for a warrant to bring him back. In either 1540 case the man would have an opportunity to explain his actions and to refute what was being said about him. The court could, in appropriate cases, warn him that he would be sent back to prison if he did not mend his ways, and the court could further be empowered to combine this warning with some other punishment for the breach of the conditions—for instance, a fine—just as it now can in the case of a probation order. And if it appeared that the man ought to go back to prison then he could be remanded in custody for the Board to consider his case. This, in my view, would certainly be a better system from the point of view of the probation officer and would make for a much clearer and easier situation between him and his client.
My Lords, in all that I have been saying I have been trying to get beyond the wording of this Bill and to see what it means for those who will be involved in making it work. I have tried to be constructive. The Probation and After-Care Service, as I have said, accepts that the supervision of men on parole should rightly be part of its duties. It asks only two things: first, that the system should be workable; and, second, that the Service should not be asked to undertake these new duties until its strength has grown to a point which makes it possible —and I was glad to hear the noble Lord, Lord Stonham, say, as I understood, that that is indeed the intention. I know it has been said that the number of prisoners involved will not be large enough to make a serious difference to work-loads, but the men released will constitute only part of the extra work. In every case where release on parole is even contemplated one of the considerations must be the home conditions to which the man will return, the prospects of employment and so on; and that means a social inquiry report by the local probation officer, whether the final decision is to release the man or not. I hope that consideration will be given to the anxieties of the Service in these matters. Those in it want to do the job, and to do it well as soon as they feel they can.
There are still a number of points at which, in my view, the Bill could be improved, but I think I have said enough to-day. In general, I commend the Bill, so far as it goes, but I wish it had been possible to bring in a measure dealing 1541 more broadly with the whole subject of penal reform. I wonder when we may hope to see such a Bill.
§ 8.48 p.m.
§ LORD WILLIS
My Lords, I rise to welcome this Bill for two particular reasons: first, because I think it tries to blow some of the dust out of our legal system—and I welcome that—and, secondly, on a more personal level, because I know it represents the consummation for my noble friend Lord Stonham of many years of dreaming and hoping in this particular field. To those already expressed to-day I want to add my congratulations to my noble friend, not only on the way he presented the Bill but on the many years of work that he and many others have put in to make some of the provisions of the Bill a reality.
There are, in fact, two approaches to British justice. There is, first of all, the view, which I regard as romantic, highly-coloured and smug, which maintains that British justice is the best in the world and that there is nothing to beat our judges, our policemen, our courts or our legal system in general. This is a view that is taken largely by Englishmen abroad; and I must confess that after visiting some of the countries to which I have been, and having seen their legal and law enforcement systems, I have come home with considerable relief and gratitude and have welcomed our own particular law enforcement and legal system. But it is a smug and narrow view. There is much that is wrong in our legal system and much that we have been afraid to alter, for one reason or another which I do not profess to understand.
Then there is the opposing view, expressed by Englishmen at home, especially when they have been in contact with the law: the view expressed, probably in its angriest form, by Dickens in some of his books. He had a great contempt for lawyers. It seems that many great writers have seen fit to castigate and beat the law. I like Shakespeare's phrase:Let's kill all lawyers.I have great sympathy for that. And his reference to lawyers whosleep between term and term and then they perceive not how time moves".I have often felt, when I have had contact with lawyers on something which I have regarded as an urgent matter, that 1542 they do "sleep between term and term" and do not seem to share the urgency I feel. My Lords, the truth lies somewhere between these two views. British justice has a great deal to recommend it; but it is not perfect. But let others praise it; let us criticise it and try to alter it. It is not so good that it cannot be improved. I believe that this Bill introduces some much needed and long overdue improvements.
It is a huge and varied Bill. It has been described in various terms this afternoon. I find it a little like a Chinese meal, with noodles, sweet and sour, and chop suey and a little for everybody's taste. I do not intend to comment on anything at this particular stage except this question of majority verdicts by juries. This section of the Bill might perhaps be described as the "sweet and sour course", judging by the debate we have had this afternoon. I have react and listened to the arguments against majority verdicts; and I must admit that I am no wiser now than I was before. The only argument that seems to have been advanced is that the jury system as we have it to-day is 600 years old; that it has worked well with rare exceptions; that in its earlier beginnings it did strike some vigorous blows for British justice; and that, therefore, we should not be in too much of a hurry to change it. I cannot sec that 600 years is rushing it; but that seems to be the argument.
My Lords, that is the classic argument against all change. This House is considerably older than 600 years; but even your Lordships—who are notably obstinate—have recognised that changes must come here and that our position and powers must be altered, and have even steeled ourselves to these changes.
§ BARONESS WOOTTON OF ABINGER
My Lords, would my noble friend allow me to say that one of the arguments used, I think by myself, was not that it was an instrument of 600 years' durtion but that it was high time that we examined it rather more closely before making a change of this kind.
§ LORD WILLIS
I thank the noble Lady for that intervention. I was in fact just coming to this particular point.
1543 As I was saying, we in this House, with much greater antiquity, have steeled ourselves to certain changes that must come. It seems to me that one ought to do this in relation to majority verdicts and the present jury system. The other question that has been raised—and this is where I come to the point made by the noble Baroness, Lady Wootton of Abinger—is that we have not enough evidence, and therefore we should hang on a little longer and investigate the problem. But I suggest that this is going to be an area in which it is practically impossible to get evidence. We are now facing what is a new and completely different situation and one which calls for new thinking, a situation that is terribly dangerous and on which we cannot afford to wait. We have all heard that there has been this immense increase in crime, from 11,000 prisoners a year in 1938 to 35.000 to-day. This is an appalling picture; and a sad one. I find it personally sad because I used to have the dream that once we got rid of unemployment in this country and built a different kind of England where people would not be out of work and would not be poor, crime would decrease. It seems to me—and it is a rather chastening thought—that the more we move forward, the bigger the scum that we create. I find that sad.
Coupled with the increase in crime, there is the enormous increase in organised crime and in the gangs. We must never forget that this is the new element: that crime has rationalised itself far more than our industry has. It has moved a long, long way from the "thieves' kitchen" of old. This is the day of the big "fixer"—and let no one be under any illusions that this is not going on every single day in relation to our legal and jury systems. This is the day of the entrepreneur of crime, the impressario, the agent, with immense resources of money, contacts and personnel. A small crook to-day goes to a "fixer" and is financed for his operation. He gets an advance of money and he gets an expert assessment of the possibilities of the crime that he wants to undertake; and in return he gives the "fixer" 40 per cent. or 50 per cent. or even 60 per cent. of his proceeds. But that "fixer" gives him not only the money but protection all the way along the line.
1544 A leading police officer once told me how difficult it was for the police to get information on these "fixers", or to pin them down in any way. He described his embarrassment one evening when he went to a highly respectable dinner party and actually met there a man that he knew to be one of the leading "fixers". They are some of the more highly-respectable men in our community—or they appear to be so—and they operate on a gigantic scale. The great train robbery, the bullion robbery, these are just the tip of the thing; it also operates on a small scale all down the line. These people can fix anything, and they can fix a jury, and they are fixing juries, day in and day out. You cannot get evidence on it because these people are not stupid. They have seen that the Achilles' heel of the present system is that only one person has to disagree and the accused is off, is away, is free. It may be that he will be sent for trial again; but if there is a disagreement a second time he will be free.
That is the Achilles' heel at which they struck. They strike with money and with threats, and they strike continuously. It is being done now. We publish the names of all jurors; their addresses are published and it is not difficult to get their telephone numbers. What jury man is going to come into the open and say: "I had a telephone call at midnight which said what would happen to my house or my children or to myself if I did not give the right verdict." What juryman but the exceptional man would say, "I have been offered not £50 but £500 in order to bring in the right sort of verdict." You could set up a commission to sit for twenty years and not get that kind of evidence. But it goes on; and it goes on all the time. It is practically impossible to lay hands on these people or to get proof. As crime develops on this huge and organised scale it will go on more and more. It will still continue, even if we bring in this change and make majority verdicts possible; but at least it will be much more difficult for the "fixer".
That is why I welcome the change. These "fixers" do not advertise their successes—but they are having successes, many more than those that have been quoted in the debate in another place or here to-day. That is why I support this recommendation. I support it as an 1545 urgent measure, and I do not believe that the setting up of another committee to investigate the working will help in any way. This is not a sporting game. This is not a game of cricket. This is a very serious Position in which lives, money and justice are involved. We cannot afford to go on playing about with it any longer. We are trying to put bad criminals behind bars. We must not think that our policemen who are trying to do this are, in fact, merely batsmen going to the wicket. We must not apply the same rules to them as one would to cricket.
My Lords, I was going to comment on one or two other points, but I will not do so in view of the lateness of the hour. I should like to support very much some of the points made by the noble Lord, Lord Hamilton of Dalzell, particularly in relation to the Probation Service. This Bill is asking a great deal of the Probation Service. It seems to me that this is a body of people underpaid and overworked, and that we ought to go into the question much more carefully, because to have an idea is one thing, but to have the administrative machinery and the people to carry it out is another. I am not sure that the suggestion that auxiliaries should be trained to work alongside properly trained probation officers is not a good one. I think we could find a large number of people with a sufficient sense of dedication, sufficient devotion and willingness to work alongside properly trained probation officers, and so take some of the burden off the shoulders of those officers.
I should have liked to see in the Bill (although perhaps it does not come within its scope) an attempt to deal with what I regard as this terrible problem of the magistrates. This is another hoary old problem in our system with which we never seem to get to terms. A case was quoted the other day, I think in another place, of a 79 year old man charged with his first offence. He appeared in court and was given a sentence of three months. A 33 year old man charged with the same offence at the same court was fined £25. I am sure that your Lordships could quote hundreds of other cases revealing these terrible discrepancies between what happens in one court before one magistrate, and what happens in another. Any commercial traveller could 1546 produce his little black book in which would appear which are the worst places in the country to be caught for motoring offences, and which are the least bad. I cannot understand why, when we are talking about justice, we cannot obtain some kind of regularity in the treatment of offenders who come before our magistrates. It seems to me that this is something which urgently requires attention. I hope that will come, because we have what I think is a great team now. We have one of the best Home Secretaries and one of the best Lord Chancellors in living memory, in my humble opinion, and I hope that they will be able to tackle this reform.
I had intended to speak for about ten minutes, but I want to end on a note of mild protest. It concerns in particular the business of the House. I wish to protest strongly about one thing. To-day we have had an excellent debate which has included some fine speeches, but as a humble Back Bencher I should like to protest against the undue length of some of the speeches made in the early part of the debate, and against the fact that there were certain interventions in the "batting order" as printed without there being any consultation. Since we are talking about justice, I think this is wrong. Every Peer is equal, and I think it wrong that this should happen. The inevitable result is that the best of the time is taken, and towards the end of the evening speakers get up and feel forced to apologise to your Lordships' House, and to say, "I am sorry to keep your Lordships at this late hour", and, "I am not going to cover all the points I wanted to cover". Then they gabble a speech and sit down in a great hurry. I believe that some attention should be paid to this matter, because I think it wrong and rather selfish of the earlier speakers to go on at that great length. I hope that perhaps the Chief Whips or the Parties concerned may do something about this through the usual channels. I am making this protest because I know that many humble Back Benchers like myself feel very strongly about it.
§ 9.4 p.m.
§ LORD CHORLEY
My Lords, I think that the answer to my noble friend is that at this hour of the night we are speaking for the Record rather than to each other. But when he has such a good 1547 and attentive audience, I do not think that my noble friend Lord Willis need have any fear that his record will not be spread pretty widely. I should also like to say to him that a great deal of work is being put into the problem of obtaining a certain uniformity in relation to fines in courts up and down the country. My own county bench has had this matter in hand for quite a long time. The difficulty is to spread the movement over the country. It is possible that one county may vary a great deal from another, and there may be substantial differences between the West County and the North-East. I agree that there is a case for ironing that out, although perhaps this is not the occasion on which to go into the matter in detail.
My Lords, I should like to add my congratulations to those of almost every other speaker to-day to my noble friend Lord Stonham, not only for the admirably lucid exposition he gave of this difficult Bill, but for all the work which we know that he does in the Home Office—at any rate, those of us who are in close touch with these criminal problems. We feel confident in the support which we get from him when we have a problem to take to that important Department. I have had some difficulty in judging what sort of Second Reading speech to make, because this is emphatically a Committee stage Bill, as has been emphasised by quite a number of speakers. To my taste the Bill is full of "cherries" and it is quite obvious, from what has been going on to-day, that pretty well every one of the cherries is going to be bitten on twice. I do not propose to do that very much myself, although I have a sheaf of—I will not call them "cherry stones"—points on individual clauses which at one stage earlier in the day I had hoped I might have the opportunity of making. But I am reserving the points for the Committee stage, when I hope that I shall have a chance to speak on quite a number of them.
I should like, however, to make two or three general observations on the Bill. It has been welcomed by practically every speaker, although some had small reservations, and like those other speakers, I welcome it. Yet when I recall the high hopes with which we welcomed the Criminal Justice Bill in 1948, and ponder how many of what were regarded as im- 1548 portant provisions in that Bill are being eliminated by this Bill, I cannot refrain from feeling a little sorry. I am thinking particularly of the disposal provisions, the sentencing provisions, and not of the earlier part, which deals largely with procedure. The 1948 Act was more concerned with the sentencing aspects, and it is on the sentencing aspects that I want to concentrate my remarks.
An important part of this Bill is taken up with undoing some of what appeared in 1948 to be the most promising innovations, and it may well be that twenty years hence we shall be back here again—at least those young enough to be able to look forward to twenty years on—to deal with some of the provisions of this Bill in exactly the same way. The Bill deals with the problems of punishment in an empirical manner, as did the 1948 Act. At that time many of us thought we had the clues to the problem. I am inclined to think now that in this jungle there are no really certain clues. For the fact is that we are dealing with human beings. This is becoming much more understood and accepted during the present century than it ever was during the time when our criminal system was built up, and it is a basic rule which none of us must allow himself to forget.
We have to continue to handle these problems in an empirical way and be prepared to change our outlook, not merely from generation to generation but from decade to decade. I remember in 1948 the late Lord Templewood emphasising the complexity of the subject. He said in his speech on the Second Reading of the 1948 Act:The merit of this Bill is that it gathers together these experiences"—of the years since Victorian times—and attempts to make a new approach to penal questions upon a much wider front"—[OFFICIAL REPORT, 28/4/48, col. 467.]I entirely agree with my noble friend Lord Willis that if that was true in 1948, it is even more true at the present time. Certainly our experience in the intervening years has underwritten emphatically the word "complexity".
I hope that your Lordships will forgive my harking back to the 1948 Act. I think I am the only Member of your Lordships' House whose name is down on the list of speakers to-day who took part in those debates. I have vivid 1549 recollection of them, because at that time I was acting as a sort of junior barrister, or staff officer, to the late Lord Jowitt, who was Lord Chancellor at the time and in charge of the Bill. I remember the personal note which that great lawyer and speaker struck at that time and which so often gave a distinctive flavour to his speeches. His Second Reading speech on that Bill received more rapt attention than any other speech I ever heard him make in your Lordships' House. I should like to quote a passage from that speech. Pointing out how he had come to take a personal interest in these problems he said:I think I may say that I have visited nearly all the prisons in this country and Scotland, as well as those of many foreign countries. When I started 25 years ago it all seemed so easy. I thought the lines upon which reform should be carried through were so clear and so simple. I confess that, having now learned a good deal about this subject, I am baffled and perplexed about many of the solutions which we ought to adopt."—[OFFICIAL REPORT, 27/4/48, col. 391.]I must say that I have great sympathy with his feelings in expressing that view. It is, of course, a note of desolation, up to a point, and, I suppose, a note of pessimism. To compare it with the speech of Lord Templewood, it certainly lacks the buoyancy which he (and of course to a large extent he had been the architect of the 1948 Act), was able to infuse into his speech.
I should like to make it clear, however, that what I said earlier on about the present Bill undoing the work of the 1948 Act in a number of important respects must not be taken to mean that I think that Act has not, on the whole, stood up to the stresses and strains which have been put upon it. Indeed, a large part of it is still very much operative, and on the whole it is operating satisfactorily at the present time. Nevertheless, I think it must be confessed that most of those of us who have been concerned with the problems of criminality over 25 years—and some of us even longer—are able to find only rare, small grounds for optimism in what has happened since 1948, during which time we have had a terrible upsurge of crime.
My noble friend Lord Willis gave some of the figures, and they cannot fail to frighten anybody who is worried about the preservation of order in our com- 1550 munity. It would not be too much to say that we are at our wit's end to explain this terrible upsurge of crime, and even more as to how to cope with it successfully. It seems to be beyond our powers. During the 'thirties, when I first began to take a close interest in these problems, there was a slight increase in criminality—the statistics went up by what would now be an almost invisible amount on the graph—and it was fashionable at that time to attribute this to the terrible unemployment of those years. The noble Lord, Lord Willis, may remember this.
I convinced myself by some statistical studies, which no doubt were of a very crude character, that there was no basis whatever for this theory. The argument was really post hoc, propter hoc, and to some extent was motivated by the wishes of the people who found this tendency. It is ironic to look back on that period from the present day, when we have practically full employment. If we were to use the post hoc argument we could explain the crime wave in all sorts of differing and equally unsatisfactory ways. Thus in 1935 there was practically no scientific penology in this country; there was no research unit in the Home Office; and there was no teaching of the subject in any university in the British Isles. The Institute of Criminology at Cambridge had not been thought of. Only the Institute for Scientific Study of Delinquency had made a start on researches which have proliferated in all directions in the period since the end of the Second World War. And even that Institute was started by medical men, and not by lawyers, administrators or prison officials. I pride myself that I was one of the few lawyers who became a supporter of it from the very start.
On the post hoc theory, one might say that it was only when you begin to study and research into crime that crime increases. And if you were to turn your attention to what has happened in the United States you would apparently find this theory confirmed, because in the United States they have more criminology, they have a much greater number of criminologists than any other country in the world, and they also have a great many more criminals than any other country in the world. Yet, of course, common sense would tell you 1551 that this was a theory that could not hold water for a minute.
So we come to a position when the wave of crime is at its height in this country, at a time when everybody obtains full employment, when there is no real want, and when genuine efforts are being made by everybody concerned, in a way which certainly was not characteristic of the early years of the century, to deal with criminals in a sympathetic way. Lord Jowitt might well say, "Having now learned a good deal about this subject, I am baffled and perplexed." Well, my Lords, I am battled and perplexed, just as that great lawyer and that great student of these problems was.
There is one other general topic on which I should like to say just a word or two before I close. As I have already said, the matter with which I am most interested in this Bill is the sentencing—those parts of the Bill which deal with the sentencing of criminals. I always find this much the most difficult part of the administration of justice, much the most worrying, much the worst thing to take over and on which to ponder whether I have done my work well or not. And I am quite sure that that is so with all other sensitive men who take part in the administration of the criminal law in this country.
In the Parts of this Bill which deal with this problem Parliament is really providing a tool for judges, chairmen of quarter sessions, recorders, magistrates and those of us who have to administer the criminal law, and of course particularly for the Judges of the High Court, who not only do the sentencing in the more important and difficult cases but also supervise the work of the justices of the peace who are entrusted with the job of administering the main mass of the criminal law.
I regret to say that I sometimes have a feeling that the tools provided by Parliament, and by the Government, which brings them before Parliament, are not as effectively and as understandingly used by the judges as they might be. I do not quite know what is the solution to this difficulty, but I am sure we need a much closer co-operation than exists at present. I have the feeling that some of the judges make much greater efforts to keep them 1552 selves in touch with modern work in penology and criminology than others do. I remember that in one of the debates on crime which we used to have from time to time some years ago the late Lord Astor made the interesting suggestion that every judge who was made responsible for administering the criminal law ought on his appointment to spend a short time in prison, so that he would know what prison was like before he sent men there. It is a very interesting suggestion. I think that an even more useful suggestion would be that every judge, on being appointed to do this kind of work, should spend some time in going through a course in penology and in sentencing. After all, judges are lawyers, and the lawyer's job is really a very different one from that of sentencing a man who has been found guilty of a crime.
In recent years, the noble and learned Lord the Lord Chief Justice, who addressed us only an hour or so ago, has been doing a most valuable work, as many of your Lordships will know, in holding sentencing conferences for judges and recorders, and chairmen of quarter sessions, which I am sure have been most helpful. But of course this is, as it were, the laboratory work, from which the theoretical study has been completely absent. It would be much better if this practical laboratory work came at the end of a course which the judges and recorders and others who attend the sentencing conferences had already been through.
The noble and learned Lord on the Woolsack has of course been doing most valuable work, if he will allow me to say so, since he became Lord Chancellor, by stepping up the training arrangements for magistrates. These courses are much appreciated, judging from what I hear in my own county from those who are now going through them, and who have been taking advantage of them during the past months. Would he not think that it was just as valuable, or possibly even more valuable, that the lawyers whom he appoints to the very responsible positions of Judges of the High Court should also be asked to go through a preliminary period of training in the theory and problem of sentencing? I should like to commend that to the noble and learned Lord. Obviously, it is not in this Bill, but the Bill leaves many 1553 matters which will have to be worked out by the Judges of the High Court. These are problems which have been touched on, in connection with parole work and suspended sentences. They are there, so to speak, in outline. The build-up will undoubtedly have to come from the Queen's Bench Division and from the Criminal Division of the Court of Appeal, and I think it would be valuable if steps of the kind I have suggested could be taken in order to see that the build-up is carried through by men who are really well versed in the modern theories of penology and criminology which, after all, have made great strides over the past few years.
§ 9.29 p.m.
§ LORD DERWENT
My Lords, although the hour is "early" I intend to be reasonably brief. At least I always think it reasonable, and I hope that your Lordships will, too. I do not intend to make the usual winding-up Second Reading speech which comes from the Opposition Benches, because the Bill has had a general welcome and the differences of opinion, which have been pretty sharp in certain cases, have cut across Party. What I intend to do, therefore, is to make a few general observations, and then I shall raise certain points which your Lordships may think are Committee points. But I want to give notice to the Government that I, at any rate, am likely to put down Amendments on the Committee stage, so that the Government can think about them in advance.
Although this Bill has been described as a hotch-potch—indeed it is—it is really divided into two parts. There is the earlier part dealing with criminal procedure and the powers of the court and so on, and there is, in the main, in the second part the treatment of offenders. It was in this second part, the treatment of offenders, that the Bill was so very much improved in the other place. Although there will be certain controversy at the later stages on matters of detail, what has now arrived in general has received a welcome from all sides. On this part, as the matter has been so fully argued to-day, I want to deal with only two matters.
This part of the Bill is obviously only a beginning on the methods of treating offenders. Some of your Lordships have criticised it for not going far enough, 1554 because there are many things we want to see which are not in the Bill. I have a feeling that we may not be able to go much further in this connection until we have proper buildings, which we have not got in a variety of ways. I would commend to Her Majesty's Government the speech of my noble friend Lord Sandford. We are embarking, so we were told not so long ago by the Government, on a big scheme of new prison building, which is undoubtedly necessary; I am not arguing about that. But a word of caution is necessary here. If this Bill has the desired effect of reducing radically the prison population, it may well be that that money will run out on erecting new prison buildings which may not be necessary in a fairly short time, whereas we do want, probably just as much, new hostels.
I agree with my noble friend, Lord Sandford, that the first hostels we need are probation hostels. As I said in a debate in your Lordships' House not long ago, it is with the young that we are likely to have most success under probation, with probation hostels and so on, rather than with, if I may use the rather loose term, the hardened criminal under after-care. I am not saying we should not do after-care, but this is a question of priorities. I would ask Her Majesty's Government to bear in mind with regard to the burst of new prison building recommended by the Mountbatten Report that some of it may not be necessary in the immediate future, and if any money can be spared I think hostels should have it rather than one or two prisons that eventually may not be necessary.
The only other thing I want to say about this part of the Bill—both my noble friend Lord Sandford and my noble friend Lord Hamilton of Dalzell have brought it out very clearly—is that many of us are worried that as a result of this Bill, if it is carried out fully, an unbearable burden will be put on the Probation Service. The noble Lord, Lord Stonham, says "No", but I think that needs to be proved. It will put a lot of extra work on the Probation Service. They have more than enough to do now. I mention that merely as a matter on which many of us are rather worried.
I turn to the earlier part of the Bill. It is natural that it should be largely 1555 argued by those connected with the law—that is quite right, because of their experience. We expected it to be argued by those connected with the law. What happens on the next stage is that we laymen become the jury, and an unusual jury, because counsel on each side will come into the jury room with us.
§ LORD DERWENT
And of course there will be a majority verdict. I was going to say it, but my noble and learned friend is always too quick for me. I am not going to debate Clause 11, which has given rise to most controversy. I started at the beginning of this debate very much against majority verdicts, because the fears of some of us had not been answered by anyone until about half-an-hour ago. Certainly, the Government did not answer them. They produced certain figures and statistics, which I must say did not carry us far and I thought proved the opposite case. It was not until the noble and learned Lord, Lord Guest, spoke that I began to waver.
I was just going to say something rather waspish about the noble Lord, Lord Willis, but as he is not in his place perhaps I had better avoid it. I would say that he did not do his case much good by, if I may so term it, gross exaggeration without any proof. I am not going into all that. I have never really thought that this question of majority verdicts was of the most vital importance. But I did dislike subsections (2) and (3) of Clause 11, although the two go together to a certain extent.
I could not believe it right that in the case of a verdict of "not guilty" the foreman could get up in court and say that there had been a majority verdict and give the numbers of how the jury voted. One can see how impossible that would be. A man might well be guilty and everybody thought him guilty, but he might be acquitted not by a majority verdict but because the case against him was not strong enough. He would go home and throw out his chest and say, "Look what I did." But another fellow, a lawyer, a policeman, or a clergyman might be charged with an offence. Let us take the case of the policeman. One member of the jury might not be able to stand policemen. The rest of the jury might say that obviously the accused was not guilty. 1556 But as the clause stands now, that policeman could go out of the court knowing that one man—and it would not be known who that man was—had said he was guilty. Can you imagine what everyone would say on a policeman going back to his area?—that one man had "seen through him". The fact that the man just did not like policemen would not be known.
It was pointed out by the noble and learned Lord, Lord Guest, that in Scotland, when there is a verdict of "not guilty" nothing is said in the verdict about the majority figure. I believe that if we are to have Clause 11, we must have that provision inserted in the clause. The clause must be amended so that where there is a verdict of "not guilty", whether it is a majority verdict or not, nothing is said and nobody knows except the jury. Undoubtedly, if the Government do not put some Amendment down for the next stage of the Bill, then we will.
We think the Bill should be amended in regard to subsection (3). I do not quite know how the subsection is to work. If it is not to be announced that it is by a majority verdict, how can subsection (3) apply, under which the judge has to tell the jury that in order to have a majority verdict they must deliberate for two or three hours? Frankly, I do not see the point of subsection (3), but I have not thought out a suitable Amendment. I suggest that probably the easiest way is for it to be left out. That is a matter we shall have to think about.
So much, so far as I am concerned at the moment, about Clause 11. There is one thing I should like to say about Clause 12. This is quite a proper clause, directed to trying to stop certain people with criminal records from serving on a jury. The clause needs strengthening. My noble and learned friend Lord Dilhorne raised in slightly different form the question how you were to bring to the notice of a man who had a criminal record that he was not eligible to serve on a jury. He did not want it brought to the man's notice in front of other people. I think it can be done perfectly well. I think it ought to be done, otherwise a man who is disqualified may sit on a jury and, when he is "run in" for doing it, he is going to say, "I did not know anything about this Clause 12. Nobody ever told me." He must be told. We are trying 1557 to deal with bribery of jurors, and I would suggest that if one is going to amend this, then, provided that people are told that if they have done such-and-such a thing they are not eligible as jurors, if a man sits on a jury and is prosecuted a fine of £100 is inadequate. I suggest that the figure, as a maximum, should be somewhere nearer £400, for the man will be sitting quite deliberately knowing that he is disqualified.
I turn to Clause 30. Again my noble and learned friend Lord Dilhorne and other noble Lords were unhappy that subsection (3) does not give magistrates discretion in suspended sentences if they propose to pass a sentence of six months or less. I dislike the idea. All I will say about the clause at this stage is that if the House accepts subsection (3)(a) (which relates to the list of crimes in which the discretion is given back to the magistrates not to suspend sentence), the offence of trafficking in drugs should be added to the list of crimes in which a period under detention is probably suitable. It is very difficult to get hold of drug traffickers, and where a man is convicted of trafficking in drugs, even though it is his first offence, I do not think that the sentence should be suspended.
The only other point I wish to mention on that clause has already been raised by the noble and learned Lord the Lord Chief Justice in relation to Clause 30(3)(e)—and this also relates to Clause 15. For some unknown reason, the matter of detention was left out. The paragraph mentions the case if:the offender had at any time before the commission of the offence been sentenced to, or served any part of a sentence of, imprisonment or borstal training …".I think that the words "or detention" ought to go in there, and also in the appropriate part of Clause 15.
The only other matter to which I would refer is Clause 69, on firearms. I do not quite know why this provision is in the Bill, but I personally am in favour—though, as the noble and learned Lord, Lord Hodson, said, criminals do not use our form of shot gun as a rule. However, there are certain matters about which I am concerned. Nobody knows how many shot guns there are in the hands of those entitled to have them. The best guess I have been given is 1½ million people—it may be more, it may be less—but 1558 certainly it is a very large number. If this provision is included, it will throw a great deal of additional work on the police. Therefore, I would suggest that, if this Part of the Bill is brought into force, then after the certificates have been printed and are in the hands of the police ready for issuing a period of three or four months should elapse before the provision comes into force. This will give the police a longer period of time in which to go into all the applications. I think that the bringing into force of this provision needs careful consideration, and I hope that Her Majesty's Government will consult everybody who is interested (and all kinds of people will be concerned, such as gunmakers, the police, the C.L.A. and so on) as to the best way of handling this matter.
There is another problem that I should like to mention. Shot guns are likely to be found in certain areas and not in others, and certain police forces will have a tremendous amount of work; though I daresay that in some of the big cities they will have very little. Suppose that they are on three-year licences like the firearms certificates. That means that every three years at a given date the first people will be coming up for their certificates. The police will then have to deal with their 1 million or 1½ million people, probably in the last week before the old certificates expire. I suggest that while the Government are thinking about the matter, shot guns not being quite the same as ordinary firearms, they should think about chief constables being given permission to give these certificates for five years and not three where they think fit, in order to save work.
There are certain people interested in the firearms business who will be putting down Amendments, so I am told, at the next stage of the Bill, not with the idea of pressing them but in order to get some information on what is in the Government's mind. I am not putting those Amendments down, but I am merely telling the Government so that they can think about it. That is all I have to say. Obviously, we all welcome this Bill. We nearly all have criticisms of it, major or minor—mostly minor. As I say, they cut across Party, and I have no doubt that if any Party puts the Whips on, it will find many of its keenest supporters in the opposite Lobby.
§ 9.47 p.m.
§ THE LORD CHANCELLOR
My Lords, apologising, as usual, to the noble Lord, Lord Airedale, to the extent that I am turning my back on him, I must say that I have had a most interesting afternoon and evening, because I have heard all the speeches except two since half past two, and as I do not pretend to know as much of this subject as my noble friend Lord Stonham does, or as much as many noble Lords who have spoken, I have had a most interesting time.
We have, after all, been honoured in this debate with contributions from two former Home Secretaries and one former Lord Chancellor. A former Lord Chief Justice has been here; and there have been the noble Viscount, Lord Amory, speaking with the weight of his authority as Chairman of the Royal Commission, as well as the noble and learned Lord the Lord Chief Justice, the noble and learned Lord the Master of the Rolls, and the noble and learned Lord, Lord Morris of Borth-y-Gest, Chairman of the Committee on Juries. No Home Secretary, I am sure, could have had a more authoritative series of speeches.
A good deal has been said, so I shall probably go on for hours, and I hope that nobody who wants to leave will hesitate for a moment in doing so, because your Lordships can read all about it in Hansard. So there is really no point in sitting to hear it, so long as one person stays—because if the last man goes there is nobody to move the Adjournment of the House and I shall necessarily be found here to-morrow morning waiting for somebody to release me.
The Bill has received a general welcome from everybody. There have been informed and critical comments, which I am sure my right honourable friend the Home Secretary will welcome. In another place the Bill was examined and dealt with on a non-Party basis, as my noble friend Lord Stonham said, in 19 meetings one of which finished at two in the morning, and there is no doubt that my right honourable friend will seek to deal with the matter in the same way here.
As my noble friend Lord Chorley, with his experience of the 1948 Act, said, this is really the first major Bill on criminal procedure and penal treatment since that 1560 Act was introduced by the noble Lord, Lord Chuter Ede. Undoubtedly the most controversial question is that of majority verdicts, so, if I may, I will deal with that last. The noble Viscount, Lord Amory, expressed views on the general subject matter of the Bill with which, if I may say so, except possibly for one or two details, I very heartily concurred. As usual, I found myself agreeing with my noble friend Lord Soper and my noble friend Lord Willis, though we must have a talk some time on justices of the peace. This idea which Mr. Gordon in the Sunday Express stimulates, that if somebody is convicted of stealing a bicycle at one place and somebody else is convicted of stealing a bicycle at another place, there is something shockingly wrong if the sentences are not exactly the same, is, of course, absolutely barmy. Obviously, you cannot express any view on this unless you know all the relevant facts, which contributors of this kind never tell you. One has to see what the previous character and record of the two people have been and, if there is a question of a fine, what their means are.
Everybody, including all judges and justices of the peace, is most anxious that sentences should be as alike as possible, but since all cases differ it is only a theoretical possibility that sentences can be alike. We are anxious, of course, that they should not be too dissimilar. The noble and learned Lord the Lord Chief Justice, as my noble friend Lord Chorley has said, has periodical sentencing conferences with High Court judges, recorders and chairmen of quarter sessions. I do the same, to the best of my ability, with regional conferences of justices of the peace, and they are always most anxious to attend meetings of this kind. Also, of course, many benches in a county get together to compare notes; and the Magistrates' Association helps, too. A great deal is being done to stop a wider disparity of sentences than is inevitable.
If I may take the Bill in order of clauses and the comments made upon them, Clause 3 deals with the Press, on which the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Denning, spoke, and in which my noble friend Lord Lloyd of Hampstead was interested. Of course this is a very old point, because it is some years 1561 since we had the Tucker Report. Your Lordships may remember what the Tucker Report's conclusions were. Almost always in preliminary proceedings, as your Lordships know, the defendant reserves his defence, so what you get in preliminary proceedings is a speech by counsel for the prosecution and all the evidence for the prosecution with nothing for the defence. All that is in the papers. The Tucker Report said you cannot prove that this prejudices juries against a man before his trial starts, and you cannot prove that it does not; but the Report said there is a very widespread belief that it does.
I know, of course, as the noble and learned Lord the Lord Chief Justice has said, that juries are told, "You must try this case on the evidence you have heard, and must forget all about what you have read in the papers"; and they really behave very well. But take the Moors case as an example. Whether it is good for the public or bad for the public to have all the revolting details twice over, I do not know, but it seems to me absolutely absurd to pretend that any juryman in a case like that can possibly go into the jury box without the slightest prejudice of any kind against the man in the dock. I have always thought that we ought to treat this matter as we treat matrimonial cases, putting some bar on what the Press report other than the fact that preliminary proceedings are taking place, the name and address of the man, what he is charged with, and what the result is.
If that was so when the Tucker Committee reported, and if the Tucker Committee were right in their view, then I think it must apply with much more force if the other provisions of this Bill are enacted. Because now the accused will have a free choice of saying, "Don't bother about any preliminary proceedings; I don't want any at all", in which case there will not be anything to report, or of saying, if he does not want the whole of the preliminary proceedings, "I want to cross-examine just one witness". It may frequently happen that he will accept most of the written statements he has been given of the evidence that the prosecution witnesses are going to give, and will just say, "I want to cross-examine only one person". If one were going to have many such preliminary 1562 proceedings reported, it seems to me that the reports would be still less fair and accurate representations of the proceedings as a whole than is the case now. I myself have always been of the opinion that the unanimous recommendations (as I think they were) of the Tucker Committee were right.
Clause 12 deals with ex-prisoners. The noble and learned Viscount, Lord Dilhorne, said—and I am sure we shall all agree with him—that it would not be right for an ex-prisoner who is summoned to serve on a jury to have to get up in court and say: "I want to be excused because I have been in prison myself." That, of course, is not contemplated at all. What is contemplated is that there will be a warning notice in the standard form sent out with every jury summons. This will set out what the disqualifications are, and it will carry a warning that if disqualified persons sit on a jury they will be liable to a fine of £100. If they are disqualified, all they have to do is to inform the summoning officer of the facts of their disqualification so that the summons may be withdrawn. An assurance will be given that the information sent to the summoning officer will be treated by him as strictly confidential. That I hope meets the point raised by the noble and learned Viscount, Lord Dilhorne.
Now may I turn to Clause 13. The noble Lord, Lord Brooke of Cumnor, inquired what was likely to happen about the Morris Committee's recommendations. The Government have already stated clearly that they accept, in the main, the recommendations of the Morris Committee, and hope to introduce legislation in due course. The reason why only this very limited recommendation is being carried out in this Bill is because most of the recommendations of the Committee apply to jurors in both criminal and civil cases. The Bill, plainly, is a criminal Bill and would not have been an appropriate vehicle with which to deal with jurors in civil cases.
Clause 15 concerns the restrictions on refusal of bail. One or two noble Lords would have liked, in the places where it is excluded, detention centres to have been included. One realises, of course, that this is a matter of opinion. The Government have so far taken the view 1563 that detention centre sentences are really different from prison sentences: first, because detention centre sentences may be passed for comparatively minor offences which would not merit borstal or imprisonment; and, secondly, because the regime of detention centres is quite different from that of prison or borstal. The deterrent impact of a suspended sentence will be felt by someone who has not been in prison or in borstal before, whether or not he has been in a detention centre. Thirdly, they are different because it seems wrong that a person should be more likely to go to prison because of a detention centre sentence passed perhaps years ago when he may have been no more than 14; and, lastly, because one does not want to get people conditioned to prison. Once you have been in prison you have become conditioned; whereas one who has only had a detention centre sentence has not been conditioned to prison.
Now Clauses 30 to 33: Suspended sentences. I am sure that my right honourable friend will take much into account what has been said by the noble Lord, Lord Brooke of Cumnor, the noble and learned Viscount, Lord Dilhorne, the noble and learned Lord, Lord Hodson, the noble and learned Lord the Lord Chief Justice, my noble friend Baroness Wootton of Abinger, my noble friend Lord Soper, and the noble Lord, Lord Hamilton of Dalzell. Plainly, suspended sentences are, as with most of these things, matters of opinion. The Government are firmly of the opinion that we ought now to have suspended sentences. The balance of opinion now seems to be strongly in their favour, and the introduction was supported in evidence to the Royal Commission on the penal system, by the Magistrates' Association, the Justice Clerks' Society, the Society of Clerks of the Peace, the Law Society, and the Association of Prison Welfare Officers. After all, the position we are facing is that, taking the 1964 figures of 22,500 offenders who were given sentences of six months or less, about 7,400 had not previously served custodial sentences; and of these, about 5,900 were convicted of an offence not involving personal violence or sexual assault. It may be, however, that we shall discuss that further on the Committee stage.
1564 My Lords, as to the Probation Service, referred to in Clauses 41 and 44, the Government will, of course, take careful account of what was said by the noble Lord, Lord Brooke of Cumnor, the noble Lord, Lord Sandford, and the noble Lord, Lord Hamilton of Dalzell. There were really two points that were made, one more so by the noble Lord, Lord Derwent, about whether we should need the prison buildings. I am afraid that is so. Whatever else we do, we shall certainly need the full building programme. The prison population, unhappily, tends to go up all the time, and however successful this Bill may be, the Government are satisfied that they will need the full extent of the building programme.
With regard to probation hostels, with which the noble Lord, Lord Sandford, was particularly concerned, this, after all, is what the Government are doing. It has not been done before, it is being done now, and we are glad that the noble Lord approves. Four probation hostels are being built to start with, and we shall go on from there. The noble Lord, Lord Hamilton of Dalzell, was concerned to know whether the amount of work being put on to the Probation Service would overwhelm it. We do not think that is so, for these reasons. There may be 750 to 1,000 releases on licence, and that would be full-time work for 15 to 20 probation officers. Under Clause 53, perhaps 800 prisoners sentenced when under 21 would provide full-time work for 15 probation officers. Under Clause 46, the provision of 5,000 extra social inquiry reports would be full-time work for 10 probation officers, which makes a total of between 40 and 50 probation officers. The present strength of the service is 2,500 and the target by 1970 is 3,500; and out of those figures the Government are satisfied that if there is a call for a further 40 to 50 it could be accommodated.
My Lords, there was a good deal of criticism about the Prison Licensing Board, but I do not suppose that any ten people, or if you had a jury of twelve, that any twelve people, would agree upon what the composition of a Board like this should be. As to local committees, if a local committee thinks a particular case is not a case for release, there is still nothing to stop the Home Office from sending the case to the Board. The noble 1565 and learned Viscount, Lord Dilhorne, raised a question about documents. The noble and learned Lord, the Lord Chief Justice, said (and if I may say so I quite agree with him) that there must be confidence between the Board and the Home Office. I did not follow the point about documents. If the Board want any documents and the Home Office has not sent them, the Board have only to say so. I cannot see any difficulty about that.
It was suggested that everyone ought to have the right of appeal. Everybody would could conceivably be released can always petition the Home Office. If all these people are to have a right of appeal to somebody else, then that appeal body will be swamped. It is the intention of my right honourable friend that in the case of a life sentence the noble and learned Lord the Lord Chief Justice and the trial judge would be consulted before the case goes to the Board.
On the question of composition, I was sorry to hear the noble and learned Lord the Lord Chief Justice say that there ought to be a High Court Judge on the Board. I am sure that my right honourable friend the Home Secretary would not be opposed to that; it would be I who would oppose it, because I do not know where the judges are to come from. At least some members of this Board would have to be whole-time all the year round, and, frankly, even for three months at a time, this is not the sort of work which a High Court Judge would want. These are matters which can be discussed at a later stage.
§ LORD PARKER OF WADDINGTON
My Lords, I understood, from what I read of the debates in another place, that the Home Secretary said that it would amount to five days a month. Even if it were more, if this is a job that a judge ought to do, however overworked and busy they are, a judge must be found.
§ THE LORD CHANCELLOR
My Lords, no doubt we shall have plenty of opportunity to consider before Committee stage what the total volume of work is likely to be. One or two suggestions were made in the course of discussions which seemed to me to be likely to lead to an increase of their work. The noble and learned Lord knows the difficulties which we both have in making 1566 the best use of our very limited judge-power in this country.
The other particular comment on this subject was that it does not seem to have been very well thought out. The Government do not think that it is a good idea. I have always thought that if we had a parole scheme, it ought to be left to the Home Secretary. So if it is thought that it is not well thought out, it is those who proposed it who did not think it out very well. Perhaps in that case they will do so before Committee stage. There are a great many difficulties about the parole scheme being worked by a Board. There will have to he local committees and so forth. But my right honourable friend was very anxious to accommodate the majority in the Committee, whatever its Parts', and he promptly accepted the idea. It may be right. There is no good then complaining that there are difficulties about it. The noble Lord, Lord Hamilton of Dalzell, asked to whom a probation officer in trouble could go. He would go to the Home Secretary, as he does now.
In regard to Clause 69, I would not venture to intervene in the dispute about shot guns, but my right honourable friend will consider carefully what was said, particularly by the noble and learned Lord, Lord Hodson, and by the noble Lord, Lord Derwent.
That leaves me with majority verdicts, on which we have had an interesting discussion. The noble Lord, Lord Brooke of Cumnor, the noble and learned Viscount. Lord Dilhorne, the noble and learned Lord the Lord Chief Justice and the noble and learned Lords, Lord Hodson and Lord Guest, are in favour of majority verdicts and about a similar number are against—all equally distinguished, no doubt. I do not understand the objection to majority verdicts. It was strongly put by the noble and learned Lord, Lord Denning, on the footing that this was a sacred English tradition: that nobody ought to be found guilty unless that was a unanimous verdict; that this was general in the Commonwealth. Even if there were eleven to one, it ought to lead to an acquittal. I cannot understand this at all.
First of all, if it is eleven to one, we do not get an acquittal: we get a new trial. I cannot understand what this general 1567 historic view is. Take, for example, the position in the Commonwealth. In Gibraltar, it is seven to two; in Sierre Leone, two-thirds; Malta, two-thirds; Jamaica, nine to three; and five to two in a jury of seven, where it is murder or manslaughter; India, simple majority; West Malaysia, five to two; Singapore, five to two; Ceylon, five to two—and I may say that they have had five to two since 1801 without anybody complaining about it; Tasmania, ten to two; South Australia, five-sixths; Guyana, ten to two; Pakistan, six to three; Trinidad and Tobago, seven to two—but there has been nine to three out of twelve for manslaughter arising out of a murder charge; Mauritius, seven to two; St. Lucia, seven to two. And the general report from High Commissioners is that this situation does not give rise to dissatisfaction or any demand for unanimity. Some have a one-hour provision and some have a two-hour provision; South Australia has four hours; Trinidad and Tobago, three hours; St. Lucia, two hours for eight to one and three hours for seven to two. So it is not accurate to say that we have had unanimous verdicts in the Commonwealth for years and years.
What I cannot understand is where this general idea about the necessity for unanimity comes from. After all, as my noble friend Lady Wootton of Abinger knows, more than 98 per cent. of all criminal cases in the country are decided by justices of the peace by a majority. Nobody says that benches should not send people to prison unless the justices are unanimous. If you go to the Court of Appeal, the matter may be decided by a majority; or if you appeal from a magistrates' court to quarter sessions, it may be decided by a majority. Every day of the week people are being sent to prison by justices of the peace on a majority decision. So I do not understand at all where this view comes from. I can assure the noble Lord, Lord Airedale, that the Government's view is not primarily based on the number of acquittals, though there is a general feeling among those used to our criminal courts that the proportion of obviously guilty people who are acquitted has risen a good deal in the last few years.
It must be remembered that the judge and the lawyers in the case know the 1568 man's previous record, which the jury do not, and usually know a good many other things about him which may not be admissible in evidence. This may have something to do with the increase in legal aid. The police and Home Office figures of the percentage of those who plead not guilty who are acquitted are around 40 per cent., excluding motoring cases.
If it is true to say, as I think it is, that the certainty of conviction is the principal deterrent ground, then this is very high. I agree, as every Englishman would, that it is much better that guilty people should be acquitted than that innocent people should be convicted. There is a general feeling among those who know best that the balance is a bit far the other way. However, that is not the main reason. The main reasons are two. The first is because of "cranks" on juries, and secondly, because of jurymen being bribed or intimidated.
So far as "cranks" are concerned, there is a great deal of mental ill-health in the country. It is not kind to refer to a lunatic fringe, but there is a great deal of mental ill-health, and I think, on the whole, it is on the increase. Particularly since the last Mental Health Act, many who would be in institutions are now at home. There are many people who have written to the Lord Chancellor every week for the past ten years. In any public office one cannot help noticing how many people, quite apart from this, are not rational.
One of our troubles to-day is that there are a number of frightfully long cases. If a case lasts a month, the Lord Chief Justice says to me, "You will have to find some other Judge for me, because otherwise the Judge on this Assize will not be able to do any of his other work at all." If you take one case, which was a recent one—a customs conspiracy case concerning limited companies—it was very involved indeed, and lasted 43 days. Those are sitting days; this means two months. The foreman said to the associate, quite properly, when asked whether they were agreed, "Isn't 11 to 1 enough?" Then consider the expense. That case cost £75,000 to retry. It did not cost the accused that, because they all had legal aid; the taxpayer was paying for both the prosecution and the defence. Take another case, in which the foreman of the jury produced a note 1569 to the Judge saying that 11 of the jury were of the unanimous opinion that the twelfth was not fit to sit on a jury. Such cases do occur.
I remember a civil case of a woman who had a toxic thyroid. Not long ago, if you had that complaint you died, because there was no known cure. Then they tried operating, and that was not any good. But eventually an operation succeeded. Now it is no more dangerous than having your tonsils out. But one in a hundred times, for a reason no one knows, a vocal chord is paralysed. This does not matter, because the other compensates for it, but there is that trouble. This is an action that would never have been brought if the doctors had explained things; they do not tell you what happens. You must have about a fortnight's sedation. The night before the operation the woman concerned said to the surgeon, "I do some work for the B.B.C. Is there any risk of this affecting my voice?". He had to think quickly. She had to have the operation because there was no other known cure, and if he upset her she would have had to start the sedation all over again. He said, "No".
He had done about 150 such operations without trouble, but of course it would be this one that affected the vocal chords, and she said that she could no longer shout at her husband—but you could hear her speak quite well in the witness box. But from her point of view it was quite understandable, because either the doctor's advice in telling her that it could not affect her voice was negligent, or, if his advice was right, the operation was negligently done. Naturally, when the medical evidence was given—it was the noble and learned Lord, Lord Denning, I remember, who tried the case with a jury—it was perfectly obvious that the doctors had been in no way at fault at all. The jury were out for three and a half hours; and I heard afterwards that eleven were agreed from the start, and the other was a woman who maintained that the doctors should have advised faith healing. because she was a great believer in faith healing. Faith healing had never been mentioned from the start of the case to the end. This is the sort of peril one is under.
Last year at the Central Criminal Court there were 51 disagreements. In 1570 five cases, when retried, there was a second disagreement. That shows that those five were the sort of cases where some people take one view and some another. In the remaining 46 retrials, 23 were unanimously convicted, and 23 unanimously acquitted. Of course, I think that judges, and some other people, if I may respectfully say this, tend to think that when there is disagreement you have about 10 or 11 jolly sensible people who want to convict and one or two idiots who want to acquit. But it is quite fair to suggest on those figures that your "crank" is just as likely to be a man who insists on convicting, when everyone else wants to acquit. So the damage that these very long trials, with one or two "cranks" on the jury, can do, and the amount which even in civil cases they can cost the parties, is enormous.
The second reason, and a more important one of course, is that referred to by Lord Willis, that we now have this highly organised form of crime. These men stop at nothing, including bribery and intimidation—and when I say "intimidation", from some cases it looks rather like torture. What my noble friend Lord Willis said was quite right.
It was, I suppose, about two years ago that a judge or two, and a barrister or two, started writing to me to say how shocked they were at the way in which juries, particularly at the Central Criminal Court, were being intimidated. The difficulty is that we cannot prove it. Somebody slides up to a juror (and it is usually the poorest juror) when he is in his front garden and says. "You are on that jury. There is £2,000 in it for you if there is no conviction—a thousand down and a thousand when it's over ". But of course he is only a "runner" and the juror does not know who the man is and he cannot be found.
In one case:On Monday afternoon the wife of one of the jurors came to the court in tears and the court officer, not unnaturally, asked her what the matter was. Eventually it all came out. Her husband, an Trish labourer, was followed home on the Friday night and offered £300 if he disagreed with the rest of the jury, and the alternative of a beating-up if he told the police about it. The juror knew the character of the man and had a pretty good idea what his friends were like, so he told his wife and decided to keep quiet about it. His wife had come down to look after him on his way home that evening.1571 That man did in fact identify from a photograph the man who had approached him, but nothing would induce him to give evidence of it because he was so frightened. This is now the sort of situation into which we are getting.
Apart from cases in London, there have been cases in Glamorgan, Sheffield, Northampton, York and Buckinghamshire. I have details of other cases, in some of which there were repeated efforts. If a judge, having found that a juror had been approached, got rid of that juror or discharged the jury and started again, he found the same sort of thing happening with the new jurors. I hesitate to give details, because it would be difficult to do so without the cases being identified, and this itself might get somebody into trouble with a gang. This has become the sort of procedure, and in the nature of things one cannot get the evidence to prosecute because everybody is too frightened to give it. This seems to me to be serious.
Since I first considered this matter I have been strongly in favour of majority verdicts, certainly if it is 11 to 1 (which nobody seems to have considered much) and also, on the whole, if it is 10 to 2. It may be possible to "nobble" two people, but I should have thought that if one had to "nobble" three, it would, in practice, be a very difficult thing to do. I think this is the only real way to provide both against the crank and against this new form of part bribery and part intimidation.
I apologise to your Lordships for having taken so long. My right honourable friend, when he was introducing the Bill in the other place, said that there was behind it a desire to be… liberal and rational in its approach to the difficult and emotional questions of crime and punishment, while at the same time being directly relevant in all its approaches to the most menacing crime situation with which this country has recently been confronted.In seeking to achieve this twin purpose, I have tried to follow three main strands of policy. The first has been that of 1572 streamlining our criminal court procedure so as to enable all those concerned with law enforcement, and, certainly not least, the police, to operate within a less time-wasting framework.The second has been to give us a criminal law which is less concerned with observingthe nicetiesand more concerned with arriving at the truth, both for the guilty and the innocent. The third has been so to modernise our penal system that it could better perform its triple rôle of deterrence, rehabilitation and effective custody."—[OFFICIAL REPORT (Commons), col. 53, 12/12/66.]I believe that this Bill will achieve that object, and for that reason I know that your Lordships will, in fact supporting it in general, give it a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.