HL Deb 02 August 1972 vol 334 cc281-380

2.39 p.m.


My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee.—(Viscount Colville of Culross.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 30 [Reference to Court of Appeal of point of law arising in trial on indictment where accused has been acquitted]:

LORD JACQUES moved Amendment No. 44: Page 24, line 28, at end insert ("and the Court of Appeal or the House of Lords, as the case may be, shall take such action as they consider necessary to safeguard the reputation of the acquitted person against damage arising out of a reference under this section.")

The noble Lord said: By this clause Parliament would authorise the Executive to refer to the Court of Appeal a point of law arising from a trial on indictment in which there had been an acquittal. The decision in the Court of Appeal of course 205 would not affect the acquittal. Furthermore, the person acquitted could be represented at the Court of Appeal, or the House of Lords, as the case may be, in which case his costs would be borne from Central Funds. Nevertheless it is obviously possible that a person, after being acquitted, could have his reputation tarnished because of the publicity which was given to a hearing, either in the Court of Appeal or in the House of Lords. For that reason we do not like this clause at all.

We can appreciate the convenience to the Executive to be able to refer points of law to the Court of Appeal and the House of Lords to get a decision, but we think that the price, in the way in which this clause is drafted, is far too great. Therefore we would prefer to see this clause deleted from the Bill because it is difficult, indeed almost impossible, to find a satisfactory way of safeguarding the reputation of the person who has been acquitted.

In the course of the Second Reading debate the noble Viscount said that he would be pleased to receive any constructive suggestions. I had a look at this matter as a layman without any claim to technical skill or experience. It appeared to me that if Parliament was going to authorise the Executive to take points of law on acquittal to the Court of Appeal then Parliament should, at one and the same time, authorise the Judiciary to give whatever protection was necessary to the reputation of the person who was acquitted. That appeared to me to be the logical way of dealing with the matter, and that is what this Amendment does. The Amendment would add to the clause and the Court of Appeal or the House of Lords, as the case may be, shall take such action as they consider necessary to safeguard the reputation of the acquitted person against damage arising out of a reference under this section. If we must have the clause we would prefer that it be amended in this way. I beg to move.


I wonder whether it would assist the Committee and the noble Lord, Lord Jacques, if I were to tell them what advice I have had, essentially in fact from the noble and learned Lord the Lord Chief Justice, about the practical measures that could be taken in order to meet this point. I will willingly give way if other noble Lords wish to make their speeches at this juncture, but I think it might be helpful if I could run through what the noble and learned Lord has told me he would advise the rule-making bodies to do about this matter. I may say that the same thing applies in Northern Ireland. It will be observed that, at their request, I have tabled an Amendment to make the same sort of provisions for Northern Ireland. The same sort of approach would apply there because the Lord Chief Justice of Northern Ireland has said so.

The noble and learned Lord the Lord Chief Justice has been looking at this matter very carefully, because I can assure the Committee that the sort of points that the noble Lord, Lord Jacques, has mentioned, and the approach to it which has been apparent, both in this House and in another place, is entirely shared by the courts and the Judiciary there. The important thing is that we have a practical method of doing what the noble Lord, Lord Jacques, would like to be done. There is a power under Section 46(1) of the Criminal Appeal Act 1968 to make rules which would govern this matter, and there are equivalent powers for Northern Ireland. How we think it would be done is to require the Attorney General, who in this capacity is acting as a Law Officer rather than as a member of the Executive, to state a case for the opinion of the Court, in much the same way as is now done in the Divisional Court. A number of them are quite frequently so dealt with.

What would happen would be that in the case stated, which would set out the point of law which requires to be decided by the Court of Appeal, the facts would be briefly summarised. It simply says how the point of law arose. In most cases the statement of facts would be very short. There could indeed be complete anonimity. The facts might be on two sides of a sheet of foolscap, or something like that, because as a rule the point at issue would be the construction of a short part of the Statute. Indeed, I remember one case where this sort of thing arose on the content of a common law offence, and it might turn on the question of whether certain evidence was admissible or not. The factual back- ground necessary to support this sort of thing could be very briefly stated indeed. As I have said, I do not think it would be difficult to avoid mentioning names of people or places altogether. This could quite easily be done. And subject to the decision of the rule-making committee, there would or could be a requirement in the rules to require them not to disclose those particulars in open court except with the consent of the acquitted person or by the direction of the court, so that we should have essentially an anonymous appeal.

When the case came before the court the court itself need not refer to any of the facts of the original trial except those in the Attorney General's case stated type of document. When the decision was given it would answer the specific point of law and would carefully avoid indicating any view that it might have on the case from which the whole matter actually arose. It would be easy for them to do this and they would not indicate in any way whether they had views about the guilt or otherwise of the acquitted person. They could do it not quite as simply a theoretical exercise but as an academic and a legal exercise.

Therefore there would be nothing upon which the Press could found any suggestion that the man was in fact guilty; and I understand that the practice among the Press now is that they would not in any circumstances suggest that somebody was guilty unless that assumption was founded upon something the court said. Otherwise there are grave implications in the civil courts arising from defamation. Therefore if the court avoided any suggestion of this sort I do not think the Press would be likely to follow up with any suggestion either.

It is perfectly true that there are provisions whereby the acquitted person himself can be there, and of course his costs are paid, as the noble Lord, Lord Jacques, has said; but again it is not envisaged that this would happen in anything but the most exceptional case. There might be an amicus curiae—a friend of the court, a counsel appointed in order to argue anything that was necessary—but we do not think that in most cases the acquitted person would be there. The provision is made simply in case he wanted to be there, but we do not think many acquitted people would take advantage of it. That really is the way in which we think the matter would work.

I do not know whether what I have said goes anywhere at all towards satisfying the fears of the noble Lord, Lord Jacques, but I thought it would be as well to disclose it to the Committee. This is really a new matter. We have been discussing it with the noble and learned Lord the Lord Chief Justice since the Second Reading debate and he has elaborated on what he told my honourable friend in another place, who spoke on this question. This is the machinery which we see being used in order to implement this clause, and I hope the noble Lord will think that it meets the point. I do not want to go into the merits of the clause itself at the moment; we have another Amendment to leave the clause out altogether.

May I finally say this? There really have proved to be cases where the criminal law needed to be reviewed. It is not merely a matter of convenience for the Executive, because there are probably cases where there are two possible interpretations of a particular Statute. One of them has been used by one judge and the other one has been used by another and the two views conflict, and it is necessary to try to get some sort of definitive legal interpretation from the courts. What one therefore wants is a suitable appeal to the Court of Appeal or the House of Lords in order to give a final version of what the law really is. It is not until after that has been done that the Executive comes in to decide whether or not they like what the courts have said. Basically, therefore, it is really a legal matter rather than one for the Executive.

2.51 p.m.


I do not want to attempt to debate the general merits of the clause as a whole, because that will be dealt with in a moment, but I should like to ask the noble Viscount one or two questions on his statement about what the intention is. He said that it will be the business of the Attorney General to present to the Court of Appeal something similar to a case stated when you get an appeal on a point of law from a magistrates' court. I cannot quite see how that is to be done, particularly in the case of an acquittal before a jury. In those circumstances, how will anybody be able to draw up a statement, however short, of the facts found by a jury? Nobody knows what things were found to be facts by the jury, and there is no way of ascertaining that. How it will be possible for the Attorney General or anybody else to draw up a case stated, comparable to the case stated that you get from magistrates, I cannot understand.

The second point is this. I understood the Minister to say that there is some way of sending a case such as this on a point of law up to the Court of Appeal, keeping out of its particulars sufficient to identify the person concerned. But if there has been an acquittal and the case goes on a point of law to the Court of Appeal, and the Court of Appeal or the House of Lords reverses the finding on law of the lower court, how will it be dealt with in the Law Reports? You will have a report, Regina v. Smith, which is, say, the report of the trial at the Assizes. That will be in the newspapers, first of all, and then possibly, if a matter of law is involved it will appear as a law report. When the higher court, the Court of Appeal, reverses the decision in that case, it must appear in the law books and in the law report that that decision under the names of Regina v. Smith was in fact later reversed by the Court of Appeal. I do not see how you can preserve the anonymity of a person in that situation, or get over that difficulty. It would be helpful if the noble Viscount could give us an answer to those queries.


If I may add one or two questions, I do so as one who regards the clause as a monstrous clause which no Amendment will cure. If I may raise one or two of the many criticisms made in legal papers on this clause, may I ask, first of all, where does it come from? Is this a recommendation of some committee, and if not, who is its parent? Secondly, will the Court sit in private or in public, because this does not appear in the Bill at all? Thirdly, am I right in thinking that as the Court is not to give a judgment but to express what the Bill calls an "opinion", it will be persuasive only and will not be binding on the lower courts? Fourthly, are there to be any criteria at all as to the sort of case which the Attorney General may take up, or can it be any case? An article in the Criminal Law Review states: This provision gives the Attorney-General a power but does not attempt to impose criteria by which he must exercise it. Presumably every case resulting in acquittal falls within the ambit of the clause. Is that right? And is there to be no time limit? I suggest that in all our procedures, particularly our criminal procedures, there is always a time limit, and a man wrongly convicted will lose his right of appeal if he does not comply with these rules. Anyone who has been acquitted on a charge of murder or other serious crime tried on indictment must necessarily go through a very traumatic experience, and when he has been acquitted and the case is over he may well want to take a holiday abroad if he can afford it. But now, of course, it will never be over, because a week or two later, or three months, or nine months, or two years later, the Attorney General can come along and say that he ought to have been acquitted.




In effect, he can say that if the judge had known his law he would have been convicted.


The noble Lord said that the Attorney General would say he ought to have been acquitted.


I am much obliged. I should have said convicted. The mere fact that he is to be allowed to appear shows that the degree to which this may affect his reputation is recognised. The same article which I quoted states: It is, indeed, difficult to see why or when the acquitted person should have a right of audience unless it is felt that it might be prejudicial to the acquitted person if it were otherwise. There seems to be an implicit admission in the section that the acquitted person may consider that he is being adversely prejudiced. This is not an unexpected conclusion when it can be said, if the Court of Appeal gives a different direction of law, that the accused had been acquitted merely because of an error of the trial judge. This is bound to have serious social repercussions on the reputation of the individual. Although to say that a person was acquitted when there was an incorrect direction of law, is not the same as saying that the person is otherwise guilty, it is not an unreasonable surmise to say that this is how the matter will be construed by the man in the Clapham omnibus upon whom the individual depends for his reputation.


The noble Lord, Lord Foot, asked me two questions. First, he asked how one would assemble the facts necessary to produce a case stated. It is not a matter that I used to do very much, but my recollection of putting together a case stated by the magistrates for the purpose of sending it to the Divisional Court was not that it depended upon what the magistrates had thought when they retired to consider the matter, but was in fact a result of the work of counsel on both sides who between them put together the necessary facts. Primarily, it is the person who wishes to appeal who does it, and he consults his colleague and they between them put together the necessary facts which were presented to the magistrates. This is perhaps where the noble Lord's point arises. It is then sent to the magistrates for them to say whether or not those are the facts which they had presented to them in the way of evidence.

It is perfectly true that the last stage could not be done with a jury, because what facts they may or may not have considered in the jury room is something which no one may know. Nevertheless, the necessary facts given in evidence will have been referred to by the judge in summing-up when he presented the conspectus of the evidence given to the jury, and I should have thought counsel on both sides would have been able to prepare a document which set out sufficiently what were the facts which gave rise to the point of law. To take one of the cases in point, there was at one stage some dispute about whether an affray could take place other than in a public place, and, if so, what was a public place for that purpose. It is comparatively easy, I should have thought, and the Committee might agree, to state what were the characteristics of the place in which this particular offence was said to have taken place. Perhaps it was the shopping precinct which is controlled by the people—and this is one of the clauses which make it into a public place—perhaps it was a shopping precinct which was not in fact owned by the local authority it was not a highway, but it was broadly open to the public to go through. You could set that out quite easily and ask if the common law offence of causing an affray is something that can be committed in that sort of place? This is one of the disputes where this sort of decision would have been very valuable because it was a long time, in the cases of Button and Swain against the Director of Public Prosecutions, before the House of Lords finally decided this. I should have thought that such facts would have been comparatively easy to put together and that the judge would perhaps be the person to say whether they accurately represented what was put before the jury by him. Does the noble Lord wish to intervene?


Perhaps I could ask the noble Viscount a supplementary question. I would not claim to be any more familiar than the noble Viscount with the procedures on a case stated from magistrates, but my clear recollection is that a case stated contains two elements. First of all, it is eventually an agreed document between the solicitors or counsel on each side, but before that happens the magistrates who decided the case have to make their findings of fact. It is essential that they decide which way they come down on the different questions of fact, and counsel, who would then put the document into proper form, with the assistance of the magistrate's clerk, build up a document based upon those findings. It is that element in a case stated which I would suggest it would be impossible to have in the case of a jury trial because the judge, in his summing-up, is precluded from making a finding upon the facts; that is the business of the jury. It seems to me that despite what the noble Viscount said there is this incurable defect in this procedure, so that you cannot get the facts straight.


It may be that I have been wrong to rely too directly upon every detail in case stated procedure. I do not think, with great respect to the noble Lord, that in the sort of case I was just quoting it would be necessary to come to a conclusion in the case stated whether the jury did or did not think that it was a public place. The presumption is that there was a summing-up to this which said that as a matter of law an affray could not be committed anywhere except in a public place, and they acquitted. Therefore, it may be that one has to presume that the question to be decided, among others, was as to whether or not it was a public place. It is a pity that this has come up so early in the afternoon because the noble and learned Lord, the Lord Chief Justice might have been able to explain further to the Committee directly rather than through the inadequate medium—oh, he is here. I am very glad to see the noble and learned Lord.

Perhaps I could go on with what I think are the answers to the points that have been raised. I do not know how many cases in the Crown Court, previously the assizes, and in Quarter Sessions actually got into the Law Reports; I do not think there were many. I have never found it easy to find the summing-up in a criminal case reported in the ordinary Law Reports. There are the Criminal Appeal Reports where the Court of Appeal's decisions are given, but I do not think that all of the initial cases in the first instance are reported at all.


May I interrupt the noble Lord? In the legal weekly papers they are widely reported; indeed cases are reported from the magistrates' courts and from all levels.


I dare say they are, but the question that the noble Lord put to me concerned as it were, the more authorised law reports; I know you can use some of these for these purposes.


If the noble Lord could do anything to make them more widely reported in official form, no one would be more grateful than the lower ranks of the Judiciary.


Or members of the Bar, my Lords, and, I think, solicitors, too. I should have thought that the circumstances in which this was being dealt with would not preclude the adoption of some formula such as we use in certain types of domestice case, and in certain cases relating to children, whereby you can use an initial. After all, the essence of this thing is not that the Court of Appeal or the House of Lords is reversing the decision of the court below. This is the whole point of the clause. They are explaining the law, and in circumstances which have no effect whatever upon the acquittal; therefore they are not overruling. That is the reason they are expressing an opinion rather than giving a decision on the case. They are not overruling the decision of the jury; all they are doing is clarifying the law for a future occasion. In that case I really do not see why it is essential that one should have the name of the original accused or defendant involved in the report at all. Perhaps, again, this is a matter that we can think of further, but I cannot think of it as essential.

The noble and learned Lord, Lord Gardiner, asked me a number of other questions. The parent of this particular clause is the Director of Public Prosecutions. He asked my Department if we could make some provision along these lines simply because of the problem of long periods of discrepancy which have arisen between the judgments of two different judges on the same point, which are wholly irreconcilable. You then get subsequent cases where "you pays your money and you takes your choice". They are completely in conflict with each other, and there is no method at the moment, apart from a conviction and subsequent appeal, whereby one can get the matter before the Criminal Appeal Division. If the view of the previous judge which has been adopted leads to an acquittal in the third case, say, you never get the matter to a superior court at all, and you are therefore left with a whole string of cases which are wholly irreconcilable with each other. That is why the Director of Public Prosecutions wanted this power and we thought the Attorney General was the right person to deal with the matter.

Certainly the court would sit in public. I imagine its views would not technically be binding, but they must be of such persuasion to the lower courts on a subsequent case that it would be a very rash judge indeed who would disregard them. I imagine that if he disregarded them to the extent that the defendant was convicted there would be an instant appeal to the Court of Appeal, to the same court which had already given an opinion on the subject. Of course there would be a reversal of the lower courts' decision. So the Court of Appeal's decision would be binding by persuasion to that extent. The criteria of a case for which the clause is intended are purposely not set out because these problems arise in all sorts of situations. But in practice they are comparatively rare. I have been given a list of five or six where this type of irreconcilable conflict between two decisions has arisen since the war. They deal with about five or six different points of law which could have been resolved in this way but were not because there was no machinery.

Therefore, I think this is essentially an exercise for the discretion of judgment by the Attorney General as to which cases he chooses. He is not going to take up a case about whether or not you have to affix a ticket from a parking meter in a municipal car park to the windscreen of a vehicle. There are much more serious matters with which he would be involved. As to the time limit, the same thing applies. The noble Lord is not right in saying that the acquitted person cannot go on his holidays. He can go on holiday in perfect safety and in perfect peace of mind. He is not going to be reconvicted. The question of his innocence is not going to be re-opened. As I have tried to explain to the Committee, this will be done on as near a hypothetical basis as is possible for the English courts to go. The noble and learned Lord knows far better than I that the courts cannot answer a hypothetical question. The machinery I have tried to describe is intended to get as near as possible to that without infringing that basic rule. That is why there would be a short statement of fact and anonymity in the way I have suggested.

As for the timing, if the Attorney General waited for months or years before he started the machinery, we feel that the real deterrent would be the wrath of the Court of Appeal, Criminal Division. I do not know how frightened Attorney Generals are of the Court of Appeal, Criminal Division—


They are terrified.


I am obliged to my noble and learned friend for that comment—but I think they have a certain respect for the judges. I should have thought that that threat alone would be sufficient to persuade them not to wait about in order to bring cases under this provision. Those are the answers that I tentatively give to these points, but as my noble and learned friend the Lord Chancellor is here, he may wish to expand on some or all of them.

3.11 p.m.


I would have considerable apprehension about this clause, if I thought that it would really result in a reopening of the previous cases or in anything which could be fairly described as a further appeal from the decision of the jury. I see this clause working, if it is included in the Bill, as a means whereby a point of law—a point that had arisen during the case—might be extracted from the case and then argued as far as possible before the Court of Appeal, Criminal Division, in the sort of atmosphere that one would have in a moot; in other words argued, as the noble Viscount said, as nearly as possible on a hypothetical basis.

That leads on to the first point made by the noble Lord, Lord Foot. I, too, have thought about the fact that one can never say precisely what the jury found. On the other hand, it is not necessary in this sort of procedure to have before one exactly what the jury found; the facts of the real case are no longer relevant except in that they prove that it is a real point. In other words, they show that the point is worthy of consideration under this procedure because it has arisen in a real case. Apart from that, the facts could be purely hypothetical for the purpose of this clause. The facts are no more than a frame in which the point of law is exhibited. The Attorney General could perfectly well prepare his case on the footing of the evidence given at the trial below, without it being a disadvantage to the system if one did not know whether or not the jury had acted precisely in a certain way. As regards the anonimity of the proceedings, I agree with the noble Viscount that the answer is perfectly simple; if people think it of assistance, we could leave out all proper names. We could have all these fascinating points of law affecting John Doe and arising in Barsetshire, and the clause would work perfectly well on that basis.

I conclude by drawing a comparison. The sort of problem which I envisage being solved by this clause in future is the kind of problem which has arisen under the Road Safety Act in connection with breath tests. Most breath test cases have been dealt with by magistrates and everybody knows how many points of law there have been in these cases. Most of them have originated in the magistrates' courts and under the existing law, after the decision in the magistrates' court, the dissatisfied party can appeal to the Divisional Court on a point of law. The prosecutor and defender have exactly the same right. Occasionally—it is only occasionally—breath test points arise in a trial on indictment, where the verdict is the verdict of the jury, and the rule there, as noble Lords will know, is that although the accused, if convicted, can appeal on fact or law, the prosecutor cannot appeal at all if there is an acquittal. This provision would enable a point of law arising on an acquittal at a trial before a jury to be tested in the same way, and the same point could be tested on an acquittal at a trial before magistrates. I have confidence that if care is given to this problem it will be possible to make the argument in the Court of Appeal so flat and uninteresting to the general public that the apprehension of damage to the accused's reputation will be unfounded.


May I put a question to the noble and learned Lord? If the matter is to be dealt with in the manner he described, would it not be advisable completely to redraft the clause?


I am not sure that I understood at any rate the last part of the noble Lord's question.


The point which I intended to raise on the next Amendment seems to arise directly out of this discussion. The noble Viscount speaking for the Government put his case in his usual clear and cogent way. One can understand—although I do not think his example was the best he could have chosen—cases of prosecution for pollution of a river where there are other cases pending in relation to the same river, and where it is necessary to get the law clear and not have a whole series of decisions which may be governed by a decision in the court of first instance which most people think is wrong. I see that point. But as I said in a previous brief utterance, I do not think the judiciary have ever stood higher in respect of the law and Parliament than they stand to-day. They have shown themselves in some decisions to be in advance of parliamentary thought. Their independence in general is unquestioned. However, the correspondence in The Times to-day, which the noble Viscount will no doubt have read, reveals how difficult it is to get over to the average person on the Clapham omnibus the fact that this independence is being maintained in view of events in many spheres in the last few weeks.

It is 55 years since I was articled to an official receiver in bankruptcy and I thought I knew the normal procedure of examination for the protection of creditors and the need for urgency where there was a possibility of assets being concealed. The position of any Attorney General, which the Prime Minister described felicitously and correctly in a broadcast the other night, has always been anomalous, just as the position of the noble and learned Lord who sits on the Woolsack is anomalous. I greatly admire the ability with which he performs these anomalous duties and the distinction which he makes between them. I do not think there has been a challenge to the integrity of the Attorney General in interfering in affairs or in giving independent advice since the unfortunate Sir Frederick Hastings got the then Labour Government in trouble in, I think. 1930.


That was in 1922.


I do not think it was in 1932. There was a National Government in power at that time.


I said 1922 not 1932.


I am in the same position as the unfortunate Senator Eagleton; I failed to notify the Leader of the Opposition of a certain defect of mine. It is a defect of hearing of which I was not even conscious until I came into this Chamber. I do not always hear as well as I should like to hear.

What is the position of the Attorney General to be in this case? Is he to reconsider a decision on which he has given his fiat to the prosecution? Would he be influenced by that or would people think he had been so influenced? I do not think that is the more serious point, though he has enough on his plate. There is another serious point which I make to the very distinguished and respected noble and learned Lord who is a judge and who has just spoken. It is that this seems to encroach on the privileges of Parliament. Parliament said what it thought it was going to say about breath tests and so on, and Parliament seems to have said it very badly. I spent something like twenty years popping up and asking, "What does this clause mean?" and Ministers sent someone along to the Box, and then said, "It means what it says". Five years later, the Court of Criminal Appeal would say, "We wish Parliament would express itself with more clarity, because we are having a job to interpret what they are saying". It is for Parliament to say what it means, and to say it clearly.

If the decision of a court appears to impugn the utility and general acceptance of the general law, it is for Parliament to alter the law. The point that has not been made is that this is going to be an ex parte application to the Court of Criminal Appeal. The noble Viscount will say," But the man concerned is entitled to be represented, just as the justices are entitled to be represented and very often are on a case stated". But if the man concerned goes to an intelligent and busy solicitor, that solicitor will say," What has it to do with you? You are acquitted. You have a house in the South of France, you are not going to do it again, and why should you court the publicity and contumely in public when you can sit back and say, 'I did not contest this, and I do not care tuppence what the Court of Appeal says. It does not affect me.'?" Would any subsequent Court of Appeal—I withdraw the word "Criminal"; it was a slip of the tongue—feel themselves bound by a finding of a previous Court of Appeal on an ex parte argument by someone representing the Attorney General?

Finally, it has been said that many cases are not reported. Supposing this is an unreported case in the sense of it being unreported in the Law Reports, but it is reported in The Times in headlines that Mr. Justice Jones said so-and-so. Now you have a procedure under which the Attorney General will have his attention called to it by, no doubt, a doctor of law at the university, or other people seriously concerned with the reform of the law. He will have to ask for a shorthand note to be taken. He will have to wait several weeks for a special shorthand note to be prepared at very great expense. He will have to instruct counsel to consider it, because I take it that it is not intended that he should appear in person in these matters. Then in the end it will be argued ex parte—as it must be. Who is to appear on the other side unless the acquitted person elects to be represented?


The trouble is that the noble Lord, Lord Hale, has confessed that sometimes he has difficulty in hearing. He did not hear me say that when the person who has been acquitted was not present there would be amicus curiæ, a friend to the court, who would argue it the other way.


That is exactly what I was about to add. You have to go through the farcical procedure—may I withdraw the word "farcical" if it is thought offensive, but the rather formal and not very adequate experience of appointing amicus curiæ, for possibly amica curiæ, in deference to"women's lib.", to advise the court. Indeed, it may be in those circumstances that the amicus curiæ will think it well to go into the matter at very great length and put forward an argument. But he may very well pop up and say, "I agree with every word of the Attorney General", and I think this should be reviewed. I feel that this is bringing the Judiciary into a position which is highly unnecessary, because the argument was put forward that this clause would not be used very often but only in exceptional cases. It will be used when the judges of the Court of Appeal want it.

We have just had a famous decision of great importance in which the House of Lords unanimously overruled a decision which the Court of Appeal had given with something like acclamation, and with expressions so strong that they were rather surprising coming from an appellate court. The result is that you are adding another anomaly, and an expensive anomaly, to the law without any obvious advantage at all.


May I attempt to respond to the first point made by the noble Lord, Lord Jacques? How far a provision of this kind should be spelt out in the Bill, and how far it should be left to the rules, is a matter of opinion. I should not like to say that the procedure could not be further spelt out in the Bill if noble Lords thought that right. On the other hand, the more you leave to rules, the wider the area in which you can make amendments when you find the rules are not right to begin with. It gives a flexibility which is desirable in the early stages with the system being worked out.

In regard to what was said by the noble Lord, Lord Hale, may I say that the court receives enormous assistance from counsel coming as amicus curiae. We resort to this device a great deal when we have a difficult issue to decide and when, for one reason or another, it looks as though it will be argued on one side only. Quite often we ask for counsel to come as amicus curiae on behalf of an absent defendant who does not think it worth while to attend but when, the case being one of real importance, we require help in deciding it. My experience has been that counsel acting in that capacity play a real and effective part, and largely dispose of the argument that the matter is in substance an ex parte application.


I think it would be for the convenience of the Committee if I withdrew this Amendment so that any further discussion could be on the clause as a whole. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.27 p.m.

On Question, Whether Clause 30 shall stand part of the Bill?


There is also on the list an Amendment to leave out the clause, and I suppose that the Question that has just been put raises almost exactly the same arguments.


With respect, the Question that has been put is the only way in which this Amendment can be raised.


I am very much obliged to the noble Viscount. I have listened to the argument in order to ascertain from it whether I thought that the proposals which came via, if I may so, the noble and learned Lord the Lord Chief Justice through the noble Viscount, Lord Colville, to this House really dealt with the problem before us. I feel quite convinced, with great respect to both noble Lords, that they do not. I think that the only way in which we can deal with this clause is to put a pen through it and strike it out, and that is what I should like to ask the Committee to resolve to do.

May I begin by saying that I of course accept that it is a public interest that if possible there should be some procedure available which can resolve important and doubtful points of law. I was a little surprised when the noble Viscount, Lord Colville, said that in the 27 years that had elapsed since the end of the Second World War, if I caught him aright, there were some five or six cases of that sort. I should have thought that there were more. I thought so particularly listening to the noble and learned Lord the Lord. Chief Justice when he referred to the breath test cases. A number of problems have arisen on the legislation relating to the breath test, and it is obviously of the greatest importance that they should be resolved. I begin by accepting that there is a public interest that there should be some such procedure to enable the resolution of important and doubtful points to be possible. I will conclude my argument by responding to the appeal of the noble Viscount, which he made in the Second Reading debate, that alternative suggestions should be made if there are any. I should like in due course to make an alternative suggestion which I think would achieve the object which the Government have in view even more effectively than Clause 30. May I begin, therefore, by making submissions to your Lordships which I hope will convince you that the proposals of the noble and learned Lord the Lord Chief Justice would not in fact be adequate to safeguard the individual who has been acquitted.

As I read the clause, it deals with indictable offences going up to those of the greatest possible gravity. May I seek to illustrate my argument that the case stated procedure which was adumbrated would not really achieve the objective, by testing it in relation to an actual case in which I had some concern. I will not mention names, but it was a case, reported in the Law Reports in 1946, which came before your Lordships' House sitting in its judicial capacity. It was a case that involved a point of law which was doubtful and the resolution of which was of the utmost importance in those times, in 1946. What was happening was that, unhappily, soldiers returning from the war found that their families had broken up, their wives had been unfaithful, and in a paroxysm of fury, they killed their wives or their wives' lovers. It has always been held, as your Lordships know, that if a husband comes upon his wife in the act of adultery what he sees is held to constitute such serious provocation that if, under the influence of that provocation, without having had time to cool (the phrase is used in the Report), he kills her, the offence, if the jury think the provocation did in fact influence him to the act, is reduced from murder to manslaughter. That has always been clear law and there has been no doubt about it.

But a number of cases arise in which soldiers returning from the war killed their wives as the result of a sudden confession of adultery: nothing seen but merely words were the provocation relied upon, on their behalf, in order to reduce the crime of murder to manslaughter. The broad question of law that was involved was whether words, as such, conclude my argument by responding to a reasonable person as in an individual case to reduce the killing from the crime of murder to the crime of manslaughter. In the 1946 case the husband killed his wife. It is necessary, for the purpose of my argument, to go over some of the macabre details in the case. They had gone to a public house. He thought she was exchanging glances with another soldier. They went home and continued to row all night, and about two o'clock in the morning, when the children were in bed asleep, she said something to the effect that, "If it pleases you, have it your own way; I have been unfaithful to you." He struck her and killed her. It was argued on his behalf that those words, and in particular that sudden confession of adultery, constituted such provocation.

Mr. Justice Charles, before whom the case came, ruled that in law such words could not constitute provocation and that words could not constitute provocation of that sort. Accordingly the husband was convicted of murder and sentenced to death. He appealed to the Court of Criminal Appeal (as it then was), and the Court of Criminal Appeal dismissed his appeal. It then fell to the Attorney General, and in his absence the Solicitor General, to decide whether, if application was made on behalf of the condemned man, an appeal could go to the House of Lords in relation to that conviction. A certificate could be granted only if the Law Officer concerned was satisfied that the decision of the Court of Criminal Appeal involved law of exceptional difficulty and that it was in the public interest that there should be a further appeal.

The application in that case was placed before me, and I had not the slightest doubt, in view of what I have said was the background, that it was desirable in the public interest that the question should be finally resolved whether words as such, and in particular words which constituted a confession of adultery, could reduce that killing from murder to manslaughter; and I so certified. A slightly less unhappy feature arose in that case. We used to present our arguments to your Lordships' House across the Bar of the House. The argument on behalf of the appellant was so brilliantly presented by Miss Elizabeth Lane that at the conclusion of the argument their Lordships rose from their seats in order to offer personal congratulations.

The way I should like to put my argument is this. Suppose the decision in that case before Mr. Justice Charles had been to the contrary effect; that, hearing those facts, he had said, "I think those words could in law constitute such provocation"; and suppose the jury, the question having been left to them, had said," We think that in that case they did constitute such provocation", and accordingly the accused man had been convicted of manslaughter, not murder. Suppose he had been sentenced to a term of imprisonment of three, four or five years, or whatever it might be; that he had served his term —perhaps earning his one-third good conduct remission—and had come out and wanted to rejoin his children and go back to his home and resume his normal life. Suppose that in that situation this procedure was available, and the Attorney General thought it was desirable that the question which I have adumbrated—namely, to what constitutes provocation in a situation of that sort—ought to be finally resolved. There had been a rather uncertainly phrased summing-up, I think about 1857, which has given rise to a good deal of doubt. Supposing the Attorney General had accordingly applied to the Court of Criminal Appeal—and ultimately the case might have gone to the House of Lords for a ruling—if the procedure outlined by the noble and learned Chief Justice had been used it would not have been possible to conceal from the Press, from neighbours and friends, and from everybody who had been in contact with that man, that his was the case involved.

The noble Viscount said that the facts might be set out on a couple of sheets of foolscap paper. It would have been set out there that the husband had gone to a public house with his wife; it would have been relevant that glances had been exchanged in the public house, because that went towards the provocation; it would have been relevant that there had been argument all night, and that there had been a sudden confession of adultery at two o'clock in the morning after all that argument. If that had been set out in the form of a stated case, even though the husband was called X and the wife Y, how on earth could they have kept concealed that it was his case that was being considered by the Court of Criminal Appeal or by the House of Lords? I should have thought that in a case like that, when, as the noble Lord, Lord Foot, said, it appeared in the Law Reports, everyone would know what case was being referred to. When it appeared in the local Press where that man lived everybody would know the case that was being referred to. Think of the agony of mind of a man who all through his life has the slight consolation, after a tragedy of that sort, of thinking at any rate that it was manslaughter because he had been subjected to that unbearable provocation if he is told," Oh no. The judge got the law wrong and you really ought to have been hanged." Everyone else would say the same thing about it.

I remember quite well one of my constituents, a very charming lady, an elderly lady, was frightfully indignant because next door the local authority had housed a prisoner, who had been released from prison, with his family. I saw the wretched man walking across the road, hand in hand with his two little children, to buy a packet of cigarettes and the whole street looking at him. Everyone knew him; everybody glanced at him, and thought, "That is the man who has just come out of prison." That would be the situation of the sort of person we are talking about. People on the whole are kindly, but not as kindly as all that. There would be plenty of people at work, people who did not like him, who would be saying, "You are lucky; if the judge had got the law right you would have been on the scaffold; you would have been a dead man."

I should have thought that, in this compassionate society that we try to create, we really would do what we could to avoid a situation of that sort arising. The doctrine of autrefois acquit/autrefois convict is so deeply engrained that something which offends against it ought not to be accepted unless there is an absolute, urgent necessity. If there are only five or six cases in which this procedure could have been used, I should doubt very much whether it could be said that there was such an urgent necessity. Therefore, we are faced with a clause which in my submission cannot be worked except at the cost of causing great pain to individuals and of making it infinitely more difficult for persons who have been acquitted to live their lives in future as useful citizens without constantly having over them the shadow of a view expressed by the Court of Appeal or the House of Lords that, in effect, the law was wrongly declared—because that is what it would be—by the judge who had tried them, and that if it had been rightly laid down by him they would have been convicted. I think that that is a really deplorable situation, and I hope that the Government, if they accept that argument, will be ready to reconsider the position.

As has been pointed out, the clause actually provides, as it must provide, that the acquitted man can, through his counsel, appear before the Court of Appeal or the House of Lords; and, if he appears, what else will he want to do? He will want to urge all those facts which could be prayed in aid in his favour. How on earth is that going to be done and the case be disguised by the procedure of the stated case outlined by the noble and learned Lord the Lord Chief Justice? I would submit that it just will not be possible. In a few cases it might be possible, but in a great many cases it will not. I have heard it said, "Yes, but you have the discretion of the Attorney General." I hold the present Attorney General, Sir Peter Rawlinson, in the highest possible respect, and I have not the least doubt that he would use his discretion wisely; but that, with great respect, is not a complete answer. Otherwise, Parliament would be absolved, when it confers powers on Ministers, from the duty of seeing whether they are so extensive in their terms as to be capable of an oppressive use. The duty of the Attorney General, as everybody knows, is to see that the criminal law is fearlessly and completely impartially applied: but it is an equally urgent duty of his—and everybody accepts this—to see that it is not oppressively applied.

That brings me to the alternative suggestion that I should like to make. It is well accepted as part of our legal system that completely abstract, theoretic questions can be put at any rate to one of the courts in this land. It is also part of the jurisprudence of the International Court at The Hague, and of the European Court, that courts can be asked to decide on a question not related to any particular case. The court in our own land to which I refer is the Judicial Committee of the Privy Council. Under Section 6 of the Act of 1833, which defines its jurisdiction, questions can be referred to it; and the suggestion that I should like to make to the noble Viscount, Lord Colville, is that he should take this clause back and reconsider it between now and Report stage—if might have his attention—


The noble Lord has my full attention.


— with a view to recasting it so as to provide that, when the occasion arises—for example, in the sort of situation I have described—a question can be put to the appropriate court, the Court of Appeal or the House of Lords, posing a theoretic question unrelated to any case whatsoever. It would have this advantage over the procedure suggested. Under the procedure suggested one has, after all, to wait until a suitable case arises for the Clause 30 procedure to be used, and that may be a long time. A theoretic case could be constructed and proposed to the court for solution at any time. It has this additional advantage, in my submission. When the case arises which is to be used for the purpose of Clause 30, it may be a case some of the features in which are not ideally suited to elicit a complete statement on the point of law about which there is doubt. If you have a purely theoretic and abstract case, not related to any given person, or any given acquitted person, then you can construct the case in such a way as to introduce into it all the facts which give rise to a complete and exhaustive answer from the appellate court to which it is submitted. That is the proposal that I should like to submit.

May I add one further point. It is said that, anyhow, the Attorney General has the right to appeal now. I would submit to your Lordships that, although I feel that such a right should be used most sparingly in a criminal case—I never remember ever having used it myself, nor do I remember the noble and learned Lord, Lord Shawcross, ever having used it—an appeal in a given case where the Attorney General is convinced that, because of, perhaps, the quality of the offence, or something of that sort, the acquitted person ought nevertheless to be convicted, is quite different from an abstract inquiry about the case of a person who has been acquitted and which will hang over him for the rest of his life because the view of the appellate court will not affect his acquittal. I feel strongly that this clause is one which is undesirably oppressive, and I feel a lot of noble Lords will share this view. I think there is an alternative approach which would secure the objectives which the Government have in mind just as effectively, and, indeed, for the reasons I have given, more effectively. For those reasons, I would move the Committee to leave out this clause and invite the Government to substitute at the Report stage of this Bill a reconstructed clause on the lines that I have suggested.

3.48 p.m.


I, too, would invite the noble Viscount to reconsider this clause before the Report stage. When I read it, it never occurred to me that it was anything more than a clause which would enable the Court of Appeal to reconsider upon its facts a concrete case in which there had been an acquittal. In this country we tend—and I think rightly—to distrust purely consultative, hypothetical cases, because that is not the way in which decisions are reached or the way in which the law evolves in our system of jurisprudence. The objection to the clause, as I understand that it would be applied, is the very grave danger that it will do an injustice to the person who has been acquitted. That was my reading of it. I do not mean that it is an injustice that someone who has committed an offence should be known to have committed it. But the difficulty about this clause, if it is applied to the concrete facts of a case, is that although the summing-up may have been wrong in law and the Court of Appeal or the House of Lords may so decide, it does not necessarily follow that the accused would have been convicted had there been a proper summing-up—and that, alas!, I am afraid, is something that you could never really get home to the public. That is why it seems to me that this clause as it stands, and as it appears to point to the procedure of considering the facts of a concrete case and the point of law which arises upon those facts, is something which will lead, or is in danger of leading, to injustice.

That being appreciated, we have this afternoon heard a suggestion, by Rules, for trying to get rid of that disadvantage by impersonalising the case, by anonimity. I very much doubt whether in fact you could do it. But one ought to realise that if that is what will be done. not by the Bill but by rules made under it—as I think it might be done—then what you are doing is simply putting in a provision which would enable the Court of Appeal, Criminal Division, or the House of Lords to give an advisory opinion upon a hypothetical point of law. It may be a good thing to have that weapon in the armoury. As my noble friend Lord Stow Hill pointed out, the power already exists. The Privy Council have power to give an advisory opinion, and I have no doubt that there has been more than one case in my lifetime in the law, but I can remember only one.

If it is desired to provide that there should be a procedure by which an advisory opinion upon a point of criminal law may be put to the Court of Appeal and from the Court of Appeal to the House of Lords, then I suggest that the better way of doing it is to put in a clause which says so, rather than retain a clause which seems to say something different and turn it into that by rule. I do not recommend that there should be such provision for an advisory opinion upon a point of criminal law. From my experience of sitting on the Bench for over 16 years, I should say that the need for it is very occasional and I somewhat distrust it, because I do not think you get good decisions of law under our system in that way. But if that is what is wanted, then I venture to suggest to the noble Viscount that the right way to do it is to draft a clause for Report stage that could achieve this, rather than persist in this clause which it is now said will be used for quite a different purpose from that which appears on its face.


I cannot remember whether this is the fourth or the fifth day on which we have discussed this Bill in Committee. I have no reluctance whatever in taking as long as the Committee wants to take on points of this sort. What I suggest, with the greatest respect, to the noble Lord, Lord Stow Hill, and the noble and learned Lord, Lord Diplock, in so far as he gave somewhat lukewarm support to the suggestion of Lord Stow Hill, is that I cannot be expected to answer the proposition placed before the Committee, without any notice whatever, that we should for the first time (apart from the provisions for the Privy Council) provide the court with power to give a purely hypothetical decision. I cannot say to the Committee this afternoon whether or not this would be acceptable because it is, as I think the Committee recognises, a fairly major departure; and if the Committee did not recognise that, the noble and learned Lord, Lord Diplock, has already told us so. I appreciate that the division is getting a bit fine between the facts of the particular case referred to under the clause, together with the rules that I have mentioned previously, and the purely hypothetical case.

I make two suggestions to the noble Lord, Lord Stow Hill. The first is that the case he quoted about the soldier coming home after the war could not possibly have got anywhere under the provisions of this clause, because the man concerned was convicted.


My Lords, will the noble Viscount allow me to interrupt? I thought I made it quite clear that I put the proposition on the assumption that the result had been different from the actual result, and that he had been convicted of manslaughter and not of murder. If I did not make it clear, I apologise, but every member of the Committee seems to have understood it.


That is what I realise. I still say that under the provisions of this clause that case would not have been referred to the Court of Appeal. That is why I said that to the noble Lord. I am sorry if the noble Lord, Lord Stow Hill, had not appreciated that; but that is so because that is not the way it works. I am afraid that that case would not have been one which was covered by the clause, anyway.


Can the noble Viscount clear up a simple point? The wording of the Bill is: Where a person … has been acquitted (… of the whole or part of the indictment)… In the case mentioned by the noble Lord, Lord Stow Hill, I think there would be a single indictment for murder and the man could be convicted on it for manslaughter. There will be cases where two charges are made and he is convicted on one and acquitted on the other. He could still be taken on part of the charge.


This is the point. The noble Lord, Lord Hale, is right. If there were two indictments and the man had been acquitted of one and convicted of the other, this would have been possible. Lord Stow Hill was speaking of a case where there had been an indictment for murder and the conviction was one of manslaughter in the alternative or the same indictment. That case would not be covered by this clause. I am sorry to be technical, but the Committee must get this right. The noble Lord, Lord Hale, said, and he was perfectly correct, that the acquittal of murder could have been conferred if there had been a separate indictment for manslaughter, but I do not think it ever is in these circumstances.

That is the short point on that. My other suggestion is this. If one has the hypothetical reference, the advisory judgment, to which the two speeches referred, we have exactly the same proposition as is inherent in this clause. Would it not be inevitable that an acquittal in a particular case would arise out of a decision of the court? It might arise not directly, but because in due course it could be taken to the Court of Appeal. In those circumstances—and the circumstances I am envisaging are not only where there is a dubious point but, more particularly, where there have been directly conflicting decisions in the courts of first instance, where one judge has ruled one way and one judge has ruled another way on precisely the same sort of facts—we have a real dilemma. In those circumstances, with the hypothetical reference to the Court of Appeal, is it not inevitable that the facts of both those cases would be relied upon specifically by those arguing one way or the other?

We have two people concerned in the real cases before the courts—or three, or however many there were. Some of those, as a result of the hypothetical decision of the Court of Appeal, would specifically, as a result of argument, as a result of the citation of their cases, have been suggested by the advisory judgment as being wrongly acquitted and there would be no anonymity. Their cases would have been referred to specifically. The provision which I have suggested to the Committee at least provides the maximum degree of specific anonymity in the case concerned that we can devise.

We have this dilemma. Either the Committee does, or it does not, want to have clarity in the criminal law. It must be exceedingly unfortunate and very difficult for all concerned if you have judges who, for better or for worse—and it may be that they did not know about the other decisions, or that they disagreed with the other decisions—rule in direct conflict with their brethren. You then have two reported or unreported cases—and I take the point of the noble Baroness, Lady Wootton of Abinger—where the law is stated to be in direct conflict with itself. What do you do? Do you leave it until pure chance, some years later, gives the opportunity of a conviction which allows the matter to be dealt with by a higher court; or do you, as the Director of Public Prosecutions suggested, provide some sort of machinery whereby it could be cleared up quickly? That is the point. Does the Committee want this to appear with the safeguards we have attempted to put in, or does it not? I suggest that there is a certain amount to be said for getting a quick solution of these discrepancies, and a procedure of some sort to clear them up. That is what the clause does. That is what, at any rate one of the learned judges who has spoken in the debate, the noble and learned Lord, the Lord Chief Justice, does not seem to object to, and that is what the Government would like.

I will now, if I may, go away and consider the entirely novel proposition put forward on this matter by the noble and learned Lord, Lord Stow Hill. I cannot give him an answer to-day. I have had no notice of this at all. As he reminded us, on Second Reading I invited noble Lords who felt exercised about this matter to give me suggestions, but I meant in such time as I could seriously consider them with those advising me. I will consider what the noble and learned Lord has said, and the speech by the noble and learned Lord, Lord Diplock. But, all the same, I must impress upon the Committee that here we have a problem. It may be that the clause is not ideal; it may be that it can be improved. But, as a matter of principle, I invite the Committee to accept that the clause, or some clause of this sort, should be in the Bill and that, because I have not had time to consider Lord Stow Hill's suggestion, we should not leave out what we already have, and what we have already considered quite fully with various judicial bodies and other people who know about this matter, all over the country and over quite a long period. That is my case for Clause 30. It may be able to be improved, but I ask the Committee not to leave it out at this stage.


May I ask the noble Viscount why it is impossible for these legal decisions to be referred as they arise to the Law Commission, rather than have a clause of this sort in the Bill?


Because the Law Commission's decision, unfortunately, is not binding on the court. If they came to the conclusion, as they must, that one or other of the conflicting judgments was wrong, you would need legislation. The argument for this clause is that it is not necessarily a matter of the law being wrong at all. It may be that one of the judges has misconstrued it and all you need is a higher court in order to put it right. This is probably what happened in the common law case referred to by the noble and learned Lord, Lord Stow Hill. The Law Commission cannot do this; only the courts can. Only the courts can give a decision of sufficiently binding or persuasive force to require the judge at first instance to follow it. Otherwise you have to have legislation. That is the whole point of doing it in this way.


May I ask the noble Viscount one question? He said that the Committee should make up its mind whether or not it wants something of this kind. I think the misfortune of having so short a debate on this very serious matter is that there has not been any opportunity of indicating to noble Lords what is the feeling of the Committee. My belief in the matter is that if we went to a Division there would be a very strong vote against this clause. But leaving this very important matter in this way, with the noble Viscount going away and thinking over whether there is some alternative, seems to me unsatisfactory in that there has been no opportunity of testing the feeling of the Committee on it.

4.2 p.m.


If I may reply shortly to the debate, I certainly do not want to bandy technicalities with the noble Viscount, but I thought, when I read the words in Clause 30: … has been acquitted (whether in respect of the whole or part of the indictment) that those words would be applicable to the case which I mentioned. It is some years since I had to do with this, but I thought a verdict to the effect that the accused person was not guilty of murder but was guilty of manslaughter would mean, within the meaning of this clause, that in so far as that part of the indictment relating to the charge of murder was concerned, he had been acquitted. Certainly he ought, even if the wording is not completely appropriate to describe a situation in which a jury, in answer to the question, "Is this man guilty of murder?" has said, "No, he is not guilty of murder." But that is a technicality and I do not want to take up time over it.

May I say at once that I apologise to the noble Viscount, Lord Colville of Culross, for not having given him notice of this alternative proposal earlier. I agree that I should have done and I also entirely agree with him that it is quite absurd to expect him, standing on his feet, to form a view as to the practicality of it. I would not seek to do that. I am grateful to the noble Viscount for saying that he will think about the matter between now and Report stage. I was, in these circumstances, about to ask leave of the Committee to withdraw my Motion, That the Clause should be left out, but I am impressed by what was said by the noble Lord, Lord Foot. Perhaps it would be an advantage to the Government and to the Committee to know to what extent there is feeling among your Lordships on the general proposition that this is an undesirable clause and that a real endeavour should be made to redraft it. In those circumstances, I hope that the noble Viscount will agree that I am not being unreasonable if I prefer to take the opinion of the Committee, so that we may inform ourselves to what degree there is feeling on the general question: should we have a clause of this sort, or is it an undesirable clause in itself? In those circumstances, I would not ask leave to withdraw. I do not think it is a question of withdrawing the Motion—


I think that the situation solves itself, because I thought the Question proposed was, That the Clause stand part. That being so, there is nothing to withdraw although, in accordance with our procedure, the noble and learned Lord was quite right in proposing a Motion, That the Clause be left out. I think the fact is that the Question which will be decided by the Committee is that the clause stand part or otherwise.


I am obliged to the noble and learned Lord the Lord Chancellor. Obviously, that is right, and all I have to do when the Question is put is to say "Not-content."


Before the Question is put, may I invite the noble Viscount at least to consider introducing a further subsection to provide that when an acquitted person exercises his right to attend and be represented at the appeal, his name shall not be mentioned, as in the case of offences by small children? I say that because I do not think that this point can be dealt with by Rule, and as matters stand, there would be nothing to prevent the Press—this being a public hearing—from reporting that Mr. Bloggs, who was acquitted at Gloucester Assizes last month, appeared

and put forward the following arguments at the appeal.


It certainly could be dealt with by Rule, but my noble friend will consider what the noble Lord, Lord Airedale, has said. It certainly can be dealt with by Rule, and I am so advised; and there are other cases where it has been dealt with by Rule in similar circumstances. But my noble friend will consider that among the other suggestions which have been made.

4.8 p.m.

On Question, Whether Clause 30 shall stand part of the Bill?

Their Lordships divided: Contents, 81 Not-Contents, 72.

Aberdare, L. Gisborough, L. Milverton, L.
Ailwyn, L. Goschen, V. Mowbray and Stourton, L [Teller]
Albemarle, E. Gowrie, E.
Alexander of Tunis, E. Grenfell, L. Napier and Ettrick, L.
Amherst of Hackney, L. Gridley, L. Northchurch, Bs.
Balfour, E. Grimston of Westbury, L. Nugent of Guildford, L.
Balfour of Inchrye, L. Hailsham of Saint Marylebone, L. (L. Chancellor) Polwarth, L.
Berkeley, Bs. Rankeillour, L.
Blackford, L. Hankey, L. Rathcavan, L.
Blake, L. Hawke, L. Reigate, L.
Bourne, L. Hewlett, L. Rennell, L.
Bridgeman, V. Howard of Glossop, L. Saint Oswald, L.
Brooke of Cumnor, L. Hylton-Foster, Bs. Sandford, L.
Colville of Culross, V. Ilford, L. Sandys, L.
Cottesloe, L. Ironside, L. Selkirk, E.
Crathorne, L. Jellicoe, E. (L. Privy Seal) Sinclair of Cleeve, L.
Crawshaw, L. Jessel, L. Strang, L.
Cromartie, E. Killearn, L. Strathclyde, L.
Daventry, V. Kinloss. Ly. Sudeley, L.
Denham, L. [Teller] Lauderdale, E. Swansea, L.
Drumalbyn, L. Long, V. Thomas, L.
Dundonald, E. Lothian, M. Vernon, L.
Ebbisham, L. Lucas of Chilworth, L. Vivian, L.
Effingham, E. Macleod of Borve, Bs. Waldegrave, E.
Elles, Bs. Macpherson of Drumochter, L. Widgery, L.
Elliot of Harwood, Bs. Massereene and Ferrard, V. Wolverton, L.
Emmet of Amberley, Bs. Merrivale, L. Young, Bs.
Ferrers, E. Mersey, V.
Airedale, L. Douglass of Cleveland, L. Janner, L.
Avebury, L. Faringdon, L. Lindsay of Birker, L.
Barrington, V. Foot, L. Listowel, E.
Bernstein, L. Fulton, L. Llewelyn-Davies of Hastoe, Bs
Beswick, L. Gardiner, L. McLeavy, L.
Birk, Bs. Garnsworthy, L. [Teller] Maelor, L.
Blyton, L. Geddes of Epsom, L. Morrison, L.
Brockway, L. Greenwood of Rossendale, L. Moyle, L.
Burntwood, L. Hale, L. Ogmore, L.
Champion, L. Hall, V. Pargiter, L.
Cooper of Stockton Heath, L. Hanworth, V. Phillips, Bs. [Teller]
Crook, L. Hayter, L. Popplewell, L.
Diamond, L. Henderson, L. Raglan, L.
Diplock, L. Henley, L. Rea, L.
Donaldson of Kingsbridge, L. Hoy, L. Rhodes, L.
Douglas of Barloch, L. Jacques, L. Royle, L.
Rusholme, L. Summerskill, Bs. White, Bs.
Ruthven of Freeland, Ly. Swaythling, L. 'Williamson, L.
Serota, Bs. Taylor of Gryfe, L. Willis, L.
Shackleton, L. Taylor of Mansfield, L. Wise, L.
Shinwell, L. Wade, L. Wootton of Abinger, Bs.
Southwark, Bp. Walston, L. Wright of Ashton under Lyne, L.
Stocks, Bs. Wells-Pestell, L.
Stow Hill, L. Wheatley, L. Wynne-Jones, L.
Strabolgi, L.

Resolved in the affirmative, and Clause 30 agreed to accordingly.

4.16 p.m.

LORD STOW HILL moved Amendment No. 45: After Clause 30 insert the following new clause:

Legal Aid: Duty of Court

". In section 75 of the Criminal Justice Act 1967 (Circumstances in which legal aid may be given) there shall at the end of subsection (5) be added four new subsections as follows: (6) In the circumstances described in the next following subsections it shall be the duty of a court having power to make a legal aid order to ascertain, in the case of any person brought before it who is not represented by counsel or a solicitor, whether such person desires to be so represented and, if such person states that he so desires, to consider whether legal aid ought to be granted to him, and if such court decides not to make a legal aid order in his favour, to state its reasons for such decision. (7) In the Crown Court the circumstances referred to in subsection (6) above are:

  1. (a) all committals, whether for trial or for sentence;
  2. (b) appeals from a magistrates' court in the cases referred to in subsection (8)(b) below.
(8) In a magistrates' court the circumstances referred to in subsection (6) above are:
  1. (a) all preliminary hearings in respect of offences triable only on indictment;
  2. (b) all other cases where it appears to the court—
    1. (i) that the nature of the offence alleged is such that the accused person may be in danger of losing his liberty or that his livelihood may be imperilled or that his reputation may be seriously damaged; or
    2. (ii) that the matters alleged against the accused person or likely to be raised in his defence or in the defence of any other person which may affect his defence are likely to raise a substantial question of law; or
    3. (iii) that the accused person is unlikely to be able to understand the proceedings or adequately to state his case owing to circumstances affecting the accused person including an inadequate knowledge of or ability to express himself in the English language 316 or mental illness or other mental or physical disability; or
    4. (iv) that the matters likely to be raised in the accused person's defence or by way of mitigation of sentence are likely to involve such work in or about the tracing or interviewing of witnesses or other preparation for the trial or to require such skilled advocacy as would normally involve the services of counsel or a solicitor; or
    5. (v) that without prejudice to the interests of the accused person it is likely to be in the interest of some other person or in the public interest that the accused person should be represented.
(9) Where a court revokes a legal aid order it shall do so only after having taken into account the matters contained in subsections (6), (7) and (8) above, so far as applicable to the circumstances of the case, and it shall state the reasons for such revocation."

The noble and learned Lord said: This Amendment is designed to add some subsections to Section 75 of the Criminal Justice Act 1967. That section deals pretty comprehensively with the circumstances in which legal aid may be given in criminal cases. I will pick out two features which are really the relevant ones for the purpose of this Amendment. In Section 75(1) the court which has power to grant legal aid is enjoined to grant legal aid where it appears to the court desirable to do so in the interests of justice". That is the general remit, as it were, to courts which are considering the question of granting legal aid. Of course they have to consider also the purely economic aspect—whether the applicant needs legal aid in order to present his case adequately. The second provision in Section 75 of the 1967 Act is contained in subsection (5), which says: Where a doubt arises whether a legal aid order should be made for the giving of aid to any person, the doubt shall be resolved in that person's favour. It is in that situation that the matter is left.

This Amendment embodies a proposal made by Mr. Silkin in another place, and the drafting is his. I should like to express to him, as I think your Lordships would wish, our indebtedness for the skill he has shown in this piece of drafting. The problem can be stated by quoting a figure which was quoted by my right honourable and learned friend, Sir Elwyn Jones, in another place. The difficulty is that large numbers of persons who are charged with offences do not seem to realise that they may be entitled to financial assistance in presenting their cases, and do not ask for it. Experience shows that there are a number of reasons for this. I gather that some of the possible applicants think that if they were to ask for financial assistance in presenting their cases it would be too expensive; that they may be called upon to make a contribution but they do not have any idea what it might be, and, quite simply, they think they cannot afford to make an application. That is a rather nonsensical situation but I believe it obtains in a number of cases.

Sir Elwyn Jones recalled to the Committee in another place that in 1970 226,746 indictable cases, involving persons of 17 years of age or over, were tried summarily. That means to say that, broadly speaking, they being indictable offences, they were offences of the more serious type; not all of them necessarily extremely serious, but at any rate serious offences in general. Of that figure of about a quarter of a million persons tried, only 75,669 were granted legal aid. In 8,645 cases legal aid was refused. One can make a simple computation and realise that, if you take together the cases where there was a refusal of an application and the cases where the application was granted, they constituted only something like one-third of the 226,000-odd cases in which there might have been an application. That seems to point to the conclusion that two out of three persons over 17 charged with indictable offences which were tried summarily before magistrates never made any application.

This question of legal aid is, I submit, only one facet of a matter that we were discussing the other day; namely, the question of bail. I should not think that I would be unreasonable if I submitted to your Lordships that a recent case, in which a man was acquitted who had been in custody for eight months, highlights the urgency of our making every possible provision that we can to see to it that that sort of thing does not happen. And while we are seeing to it that that sort of thing does not happen, we should make perfectly certain, in so far as we can by our social arrangements, that anybody who is under a charge knows what his legal rights are, receives advice as to what they are and exercises them to the fullest extent open to him. That is the general case.

There is a subsidiary aspect of this, which is that the figures show that there is an immense amount of diversity in the extent to which different courts in different parts of the country grant certificates for legal aid. In the other place a wealth of figures were deployed to substantiate that proposition and I will not trouble your Lordships by repeating them. It is in those circumstances that we on this side of the Committee, as members of the Opposition, feel that it is desirable to come back again to the proposal made in another place to introduce the words in the Amendment to this Bill. Those words were proposed in another place, and the Minister who spoke for the Government rejected the proposal. We come back to the proposal for two reasons: first, the great importance that we attach to it; and, secondly, what I will submit to your Lordships was the complete inadequacy of the answer given by the Minister on behalf of the Government in another place. It seemed to me —and I speak with great respect to him; he is an admirable Minister—that he wholly missed the point of the Amendment, and he answered a proposal that was not put forward at all to the other place.

May I in those circumstances say what it is that we propose. A Committee, which was known as the Widgery Committee (but pace my noble friend Lady Wootton of Abinger, we must no longer call it the "Widgery" Committee; it was the Committee presided over by the noble and learned Lord the Lord Chief Justice), formulated the conditions in which, in the view of his Committee and himself, legal aid ought to be granted. Those conditions are set out in the new proposed subsection (8), paragraph (b), sub-paragraphs (i) to (v). I will cite only one to give an indication of what those sub-paragraphs are. The first is: (i) that the nature of the offence alleged is such that the accused person may be in danger of losing his liberty or that his livelihood may be imperilled or that his reputation may be seriously damaged. The other situations, if I may loosely so describe them, covered by the remaining sub-paragraphs are of equal gravity from the point of view of either the defendent or the public interest. Those are pretty accurately, although not absolutely accurately, the conditions formulated by the noble and learned Lord's Committee.

Our proposal is that both in the Crown Court and in the magistrates' court, where you get conditions of that sort, the court must (it is put under an obligation), in the case of every person who appears before it and is not represented by counsel or a solicitor, ascertain from that person whether he desires to be so represented —in other words, desires legal aid—if that person states that he so desires, to consider whether legal aid ought to be granted to him; and if such court decides not to make a legal aid order in his favour, to state its reasons for such decision.

May I at the outset, in order to clear the matter out of the way, point out to your Lordships that in subsection (7) of the proposed new clause the proposal relates both to proceedings in the Crown Court and to proceedings before magistrates' courts. I accept at once that in the case of the Crown Court the system as it works at the moment clearly works quite satisfactorily. I do not think I can rationally press that in the Crown Court the percentage of grants of legal aid should be stepped up: legal aid there is, broadly speaking, available in all circumstances in which it can be reasonably expected. If your Lordships ask why therefore in our Amendment we include a reference to "the Crown Court", it is simply for the sake of completeness: if we are dealing with magistrates' courts, in order to present a complete proposal we should include the Crown Court as well. But I say at once that the proposal is meant to have effect in the case of proceedings before magistrates' courts. Proceedings in magistrates' courts are specified in paragraph (a), to which I have not yet referred, as being, all preliminary hearings in respect of offences triable only on indictment"— that is to say, very serious offences; and in paragraph (b), as all those cases in which the situations which I described as being formulated by the noble and learned Lord the Lord Chief Justice appertain. There is one more subsection, to the effect that if the court refuses to make a legal aid order it shall only do so after having considered the matters set out in the previous paragraph—that is to say, having bent its mind to it; having actually thought whether all or any of them apply—and having done so, shall state the reasons for the refusal. That is the complete proposal.

If I may dilate for a moment on the substance and purpose of the proposal, it is this. It is designed to ensure that the number of people who, through ignorance or for any other reason, do not ask for legal aid certificates shall be reduced to a minimal number. It was two out of three in 1970, in those cases to which I referred. That is an appalling number. It means that two out of three persons come before the courts in cases of that sort without having had advice; without having had anybody to present their cases, although they may be utterly unable to present them themselves. Perhaps they do not understand the English language properly; perhaps they have some mental or other defect; perhaps they are just frightened of the whole business and want to be as little involved as they possibly can. That is an extremely bad situation, and I submit that we ought to do everything we can to try to remedy it. I submit that the best way to try to remedy it is to provide that everybody in that situation should be asked in terms: Do you want a legal aid certificate? If he does want one, then the court should consider whether it ought to be granted to him; and if not, give reasons for its refusal.

I cannot pretend that that is an absolute panacea, but I submit to the Committee that it would go a long way to reducing drastically that number of two out of three persons who did not in 1970 make the application which they could have made. In addition, not only would it reduce that number but it should go at least some length towards producing greater uniformity in practice. It is not desirable that somebody who goes before the courts and wants a legal aid certificate should be uncertain as to what his chances are. He ought to know, broadly speaking, what they are. If in each case the court is required as a matter of consistent practice always to direct its mind to the question of whether there should or should not be a grant of a legal aid certificate in the case of each unrepresented person then a greater uniformity of practice is likely to develop. Therefore, one gets the double advantage. But the first advantage—the reduction of the numbers who do not ask—is the prime purpose which we have in mind.

May I say why we come back to exactly the same proposal that was made in another place? I said that it was because of the Minister's answer which, I would submit, was inadequate. What the Minister said was that the Home Office would be disposed to circulate a memorandum to justices in order to call to their attention the principles on which legal aid certificates should be granted. I know it is a regular practice for the Home Office to circulate memoranda. Quite often it is probably of great value and desirable, but justices of the peace are independent judges. By Statute they are entrusted with a discretion which they must exercise according to their own judgment.

I doubt very much the desirability of giving guidance to independent judges as to what they ought or ought not do in the exercise of a discretion conferred upon them by Parliament. Sometimes it is useful. Here is a case in which the liberty of the subject may be directly involved and it remains something for which the justices should assume responsibility; they should be directed to give careful thought to the matters which are set out in the Amendment which we propose. Therefore, in my submission the Minister's proposal was not really a desirable one in itself.

Secondly, the Minister did not begin to answer the submission made to him as to why these principles should not be included in the Bill. This is a Criminal Justice Bill. This is the right place for it. He simply said that he thought it would be overloading the Bill. I cordially disagree with that. These are matters of great importance and they should be set out in the text of an Act so that he who runs may read and so that everyone may know exactly where they are. That is the second point in the Minister's answer which I submit is a defect.

The third one is even more fundamental. If I have read his speech correctly, the Minister seemed not to have realised that the purpose of this Amendment was not to ensure that legal aid would necessarily and always be granted. Its primary purpose is to make certain that those who might be entitled to a grant should be told that they are entitled to it and asked if they wish to exercise it. Secondly, as I have said, the justices should have their minds directed to the necessity of considering whether there should be a grant of legal aid. Therefore, in my submission, the answer of the Government was wholly inadequate and it is justifiable and right that we should return to the matter again in this Committee. It is for that reason that I and those associated with me have ventured to put down this Amendment.

It is an Amendment of great importance. It directly affects the subject. It appertains to the question of whether a man should leave a court free of a conviction or whether he should sustain the indignity and disgrace of a conviction; in the case of nearly every criminal offence of this sort it should be a disgrace I know that some are technical offences, but in practically all the circumstances outlined in the Amendment the offence is serious and it is an important public interest that the person against whom it is charged should have every facility which he requires to put forward his case.

I conclude simply by saying that the Lord Chief Justice's Committee recommended that this procedure should be adopted in the case of the Crown Court. We have followed the recommendation in that sense. The Lord Chief Justice's Committee did not recommend that the procedure should be adopted in a magistrate's court. In that sense, we go beyond the recommendations of the Committee. We have adopted and incorporated the criteria that the Lord Chief Justice and his fellow members laid down. The Minister expressly said that those criteria were accepted by the Government. We go beyond what the Lord Chief Justice and his Committee suggested in seeking to make it obligatory that persons who appear before magistrates' courts in the circumstances described should be asked whether they want to be provided with a legal aid certificate in order to enable them to present their case. I beg to move.

4.36 p.m.


I rise to support this Amendment. I would ask the Government to consider it carefully because it strikes at a very important matter in so far as persons who are accused are concerned. Not only should they be properly represented but they should also feel that they have not been placed at a disadvantage because others are represented in various cases in the court which they are attending. At a later stage they may discover that they ought to have made an application for legal aid but were not aware of the possibilities.

In the main, people who appear in magistrates' courts are in strange surroundings. They feel lost. It may be that they have committed serious offences; nevertheless, whatever the case may be, they are coming into an atmosphere which is entirely strange. It is easy enough for advocates, magistrates and officials in a court to feel entirely at ease, but unless an accused has been there before he is in strange surroundings which he may not understand. This places him psychologically in a situation where he is not capable of understanding what his position is and what the effect of his not being properly represented may be.

I am sure that the noble and learned Lord who, it appears, will be answering this will realise from the vast experience which he has had in the advancement of his practice that what I am saying is correct. Very often when one is sitting in a court as an advocate and another case comes up in which the person is not represented one realises that that person does not understand what he is about and does not know how to conduct his case. What can be more reasonable than to offer to a man who comes into that kind of court the opportunity of knowing that he can receive legal aid instead of being unassisted in his defence? The matters referred to in the clause itself are in many cases matters of serious consequence to the individual if he should be found guilty. It is only reasonable to suggest, indeed to insist, that when a person comes to court in these circumstances he should be told that he has the opportunity of being represented, and it should be explained to him that if he wishes to be represented he should make an application; he should not be unaware of the fact that he can make an application. An application which is made should be considered by the court as to whether or not it is reasonable.

What on earth could be more reasonable than a proposition of this kind? I myself was surprised that it was turned down in another place. I am sure that many Members in your Lordships' House will realise the cause of that surprise. This is a procedure which should have been adopted years ago. If a person is accused of an offence, he is entitled to know what are the answers to the accusation; he is entitled to be guided by somebody who understands the law as to the kind of defence he has, if indeed he has one. He should know whether or not to plead guilty. I have myself seen defendants in court, after evidence has been heard, being advised that they are not guilty of the offence with which they are charged. That should not arise if the procedure was adequate.

I submit there is no alternative to an acceptance of this Amendment, which is framed in such a way that, so far as possible, it will cover cases where legal aid should be granted if it is necessary. It is not being said that legal aid should be granted in every case, but that the person charged is entitled to apply for legal aid and that it should be granted where advisable in the circumstances of the case. In my view there cannot be a proper refusal to an appeal of this kind.


I am well aware that I can speak only for what happens on my particular Bench, but perhaps I might briefly tell your Lordships what occurs there. The clerk of the court is responsible for granting legal aid, and in very few cases are we as magistrates asked to sign a piece of paper saying that legal aid should not be granted. I would say that in at least 98 per cent. of all cases in which legal aid is asked for it is granted. Speaking for myself as a magistrate, and I think for all members of my Bench, I can say that we bend over rather more than backwards to ask every defendant before us, in whatever court, whether or not he or she wants to be legally represented. Very often we find that defendants are legally represented because the clerk of the court has ensured that they shall be. If we think that a case warrants it—and this includes cases down to the very minor ones—then we ask quite deliberately if the defendant wants to be legally represented.

I cannot quote to your Lordships the number of cases that are taken up for legal representation as a result of magistrates asking defendants whether they want representation, but we lean over backwards on every possible occasion to persuade defendants to be legally represented. Speaking for myself, I should not have thought it was necessary to have a further provision in legislation in addition to what is already laid down.

4.45 p.m.


The noble Baroness who has just spoken has in my opinion made a strong point for putting this provision into the Bill. She has said that in her court when anybody asks for legal aid it is given and that she as a magistrate, and her colleagues, invite defendants to apply for legal aid. But this unfortunately is not the case everywhere. This is the point that those of us who sponsor this Amendment have in mind. We are considering the great discrepancies between courts. Like the noble Baroness opposite, I am thinking of the magistrates' court; and it is so important that this Amendment should become part of the Bill rather than that the matter should be left just to a circular.

The National Council for Civil Liberties has in its Bulletin for June and July, 1972, listed the performances of courts in London and the Middlesex area in granting legal aid. I would not say that this information is absolutely accurate in every instance, but the figures vary from between 82 per cent.—this concerns those who asked for and were granted legal aid—and 32 per cent. Those figures are based on applications made. The point I feel so strongly about is that there are great numbers of people—my noble and learned friend Lord Stow Hill and my noble friend Lord Janner have mentioned this—who do not even ask for legal aid. They do not know that it is available, and a great many courts, as the figures have shown—I am not going to waste time by going over the figures that were so clearly given by Lord Stow Hill—do not ask defendants about this. In many courts individual magistrates do not ask defendants about it.

What I am puzzled about—although there may be a change of heart in this House—is why something that was considered quite desirable on all sides in the other House was in fact turned down on the basis that it should not be introduced in the Statute. The wording of this Amendment does not make the granting of legal aid mandatory at all. Certainly a Conservative barrister in the other place was arguing in favour of legal advice being given free to everybody, but this Amendment does not say that; it does not say legal aid must be granted. It says that defendants should always be asked and that following the criteria, which are so far as I am aware agreed by everyone, legal aid should be given to them.

I also like the idea of the duty solicitor which is now being tried—although, I think, only in Bristol. There, somebody is on the spot to help defendants. This saves the time of the court and provides more justice to the defendant in regard to obtaining legal aid. I stress that it is very important for magistrates, and for the clerks who advise them, for this provision to be written into the Statute. If it is merely written into a circular, however well drafted, the circular will be on the wall in the magistrates' room and there is no mandatory provision for the magistrates to read it; if a magistrate reads it, there is no mandatory provision on him to remember it.

On the other hand, if the provision is in a Statute when a case comes up it is the duty of the clerk to draw the attention of magistrates to it, because it would then be enacted and in an Act of Parliament, and defendants would at least have equality of opportunity in this field. At the moment, as the noble Baroness has herself indicated, there is a great deal of discrepancy between different courts and between different magistrates and one cannot say that defendants have a fair deal and that justice is done to them as we should like to see it done.

4.50 p.m.


I wonder whether I may say a short word in support of this Amendment and make what I hope is a new point. I had to go outside the Chamber for a minute or two when the noble and learned Lord, Lord Stow Hill, opened this discussion and so I hope I shall not be making a point which he has already put forward. This Amendment envisages the defendant who comes into court unrepresented, and it deals with him. But most applications for legal aid occur before the defendant reaches court—at any rate the court which is going to try him. The ordinary procedure is that he is given a form of application for legal aid which he fills out and hands in to the magistrates' clerk's office and some time later he is notified whether that application has been allowed or refused. No reasons are given by the magistrates, if they refuse, as to why they have refused, and that is the way in which most legal aid applications are made.

What has always seemed to me to be a great disadvantage of that procedure is not only that the applicant does not know why he has been refused legal aid, but he does not even know whether the magistrates have in fact considered his application in the light of the criteria laid down by the Widgery Committee. Those criteria, if I remember rightly, appear in Stone's Justices Manual as a footnote—not even in the main body of the text—and there is no knowing whether the magistrates who have received a written application for legal aid have applied their minds to the criteria which they ought to use. If this were now to be written into the Statute it would have the enormous advantage of bringing it to the attention of the magistrates whether they are considering an application for legal aid by a person in front of them or an application which has reached them in writing.

There is grave dissatisfaction, particularly in my part of the world, with the serious differences between the practices of the different courts. There are some courts around Plymouth where the grant of legal aid, particularly if it is applied for by a firm of solicitors, is almost automatic. There is never any difficulty at all. I must say that the Plymouth magi- strates' court's practice is quite different —rightly or wrongly. The number of refusals that one gets in Plymouth are out of all proportion to the situation outside the city. That is wholly unsatisfactory and we could approach greater uniformity if every bench of magistrates were made to apply themselves to the criteria recommended by the Widgery Committee.

4.52 p.m.


I think this is the last of the important Amendments on the Marshalled List standing in our names, and I wonder whether I might first say a word as Chairman of Justice, an all-Party body of lawyers of which the vice-chairman is a distinguished Cosservative Member of Parliament, who published last year a Report called The Unrepresented Defendant in Magistrates' Courts. This amply confirms what the noble Lord, Lord Foot, has said as to the extraordinary differences between various courts.

There was first the Zander Survey of 15 London courts. This, as they said, showed a high proportion of cases in which defendants were unrepresented, even in the most serious kinds of cases tried by magistrates. The Zander Study showed that out of a sample of 720 cases, in every single offence category except that of living off immoral earnings more than half the defendants were unrepresented. The unrepresented included 95 per cent. of those charged with social security frauds; 85 per cent. of those charged with receiving stolen goods; 80 per cent. of those charged with firearms offences; 75 per cent. of those charged with malicious damage; 72 per cent. of wounding cases; 64 per cent. of sex offences other than prostitution and 53 per cent. of drugs offences. Then it pointed out the great differences between different courts. Whereas in one court all 44 applications for legal aid in theft cases were approved, in the second court 28 out of 40 were denied. Then of all the 15 London magistrates' courts, 74 per cent. of 46 defendants given suspended sentences were unrepresented, all of the six defendants sent to detention centres were unrepresented and 55 per cent. of the 22 defendants sent to prison were unrepresented. Then they point out that the Borrie and Varcoe Survey of Midland courts confirmed that the same thing was going on.

Then there was the Dell Inquiry which was paid for by the Home Office and which was a sample of every fourth prisoner received during a year in Holloway. The result of that was a finding that 81 per cent. of those sentenced to imprisonment or sent for Borstal training were unrepresented; 79 per cent. of those remanded in custody after conviction but not subsequently imprisoned were unrepresented; 38 per cent. of those remanded in custody untried and not subsequently imprisoned were unrepresented; 84 per cent. of those imprisoned for failure to pay a fine were unrepresented, and 69 per cent. of all those in the sample were unrepresented. Of the actual Widgery principles, one, of course, affected the mentally ill. The Committee said that: Legal representation was generally desirable where an accused was suffering from mental disorder or was incapable through mental disability of conducting his own defence. Of Mrs. Dell's Holloway sample, of those sentenced to imprisonment just over half were found on psychiatric examination to be suffering from some form of mental disorder; 90 per cent. of these women dealt with by magistrates had been unrepresented. Then the Widgery Committee recommended that legal aid should be given to those in danger of being compulsorily confined to a mental institution. Twelve in the Dell sample were actually so confined, of whom 11 are known not to have been represented, while there was no information about representation for the twelfth.

The next criterion they laid down was, persons whose knowledge of English was insufficient to enable them to understand the charge, or follow the proceedings properly". Again in the Dell sample, that is, one quarter of the whole prison population of Holloway every year, ten women in her sample either knew no English at all or had very poor knowledge of it; six of these had not been represented.

Then there is the risk of disgrace, which I suppose would apply mostly to first offenders. There were 149 first offenders in Mr. Dell's sample dealt with by magistrates' courts, of whom 61 per cent. were not represented. Then there are mothers with small children, and in these Hollo- way cases in 21 per cent. of the cases where there were small children they were represented, but in 57 per cent. they were not. It is only if these criteria are adopted by the law that we shall get any real uniformity at all in the courts. The Committee themselves said that there were some admirable magistrates' courts and that if everybody acted in the same way we should be all right. That being so, what do the Government say? What they said in another place on June 15 at column 1903 was this: The present Government accept entirely the Widgery criteria and believe that those are the appropriate criteria that should be implemented. Then they said: The present Government believe that the Widgery criteria are right", but they declined to put it in the Bill because they said: A Home Office circular recommending, among other things, observance of those criteria by the courts is in preparation. They said that they were perfectly willing to circulate it to the courts, and then they said: The task of the Home Office"— I do not know whether the noble and learned Lord the Lord Chancellor is going to reply, but if he does perhaps he will bear this in mind— is to recommend by circular those matters which it"— that is, the Home Office— believes to be the wishes of Parliament as to the guidelines on which a court should act. That is the right way to proceed, rather than to carry out a statutory provision of his kind. I do not agree with that, because I think it is unconstitutional. There are two important principles to be considered. The first is that the judges must do what they are told by Parliament to do. The second is that the judges are independent of the Executive, which means that they do not have to do what Ministers tell them to do. This is a very important point.

If anyone is responsible for the justices, it is not the Home Secretary but the Lord Chancellor. He and he alone appoints them, and he and he alone can and does remove them. My respectful submission to the Committee, therefore, is that the Home Office has absolutely no right—it is much too fond of doing this—to tell those who occupy judicial positions what they ought to do. Nobody should be telling them what they ought to do. If anybody is to tell them anything in this respect, it should be the Lord Chancellor. It follows that the justices are under no obligation to do what an advisory circular says. If, as has been said elsewhere, the justices at Marlborough Street have decided never to grant legal aid in a shoplifting case, then if they get a circular from the Home Secretary, a stipendary magistrate is entitled to say, "I do not agree with the Home Secretary about that. I will go on doing what I have done about this in the past." That is why it is important that this should be enshrined in the law and not left to an administrative circular.

I come to the next objection. I know from my friends who are justices how varied the practice is in the magistrates' courts. Even the Home Secretary dare not send such a document to the justices, because he realises that to do so would be grossly improper. What he does is to send it to the clerks. Some clerks have it copied and sent to all the members of their bench; some send not a copy of the circular but a note saying, "I have received a circular from the Home Secretary and this is what in my view it amounts to," and they put their own gloss on it; and in some instances the circular just stays on the clerk's table and never gets any further. A further objection from Parliament's point of view is that when one has an important subject like this, and an important Committee like this having stated what the criteria for granting representation should be, and the Government having said, "Yes, we think that is right," we can, when we have a Bill before us which everyone can read and can know its contents, have an opportunity of discussing the matter. On the other hand, we will not have an opportunity of discussing amending or in any way altering a Home Office advisory memorandum. Indeed, we will not even see it. So far as I know, documents of this kind are not even published in Parliament.

For all these reasons I strongly support the Amendment which, with the Amendments on mandatory suspended sentences and bail, is one of the three most important Amendments we have tabled. I express the hope that at the very least the Committee will be told that the Government will consider the matter further. I appreciate that we have no right to have Amendments accepted, but I urge the Government to appreciate that we have tabled what in our view is a reasonable number—20 to 25 altogether. So far, except for a small one standing in the name of my noble friend Lady Serota, none has been accepted, and in only two cases has it been said that the Government will give the matter further consideration. It is entirely a matter of opinion how far those who sit on this side of the Committee during a Conservative Administration serve any useful purpose in moving Amendments, when everyone knows that as soon as the Division bells ring it is impossible for the Opposition to win. I would not ordinarily have said that, but for the fact that we have had some notable contributions to this debate. They have included the noble Lord, Lord Hacking, and two other Members of the Bar from the Benches opposite. The noble Viscount will probably agree that most of his practice was in town and country planning.

Those who have argued for the Amendment have included a former Home Secretary, a former Lord Chancellor, the noble Baroness, Lady Wootton of Abinger, the Chairman of the Advisory Committee on the Penal System, who was first a magistrate about 26 years ago; my noble friend Lord Donaldson of Kingsbridge, Chairman of the National Association for the Care and Resettlement of Offenders, and nobody is more familiar than is he with prison conditions; my noble friend Lord Wells-Pestell, a former senior probation officer, a Doctor of Law and a person with about 20 years' experience of the bench; and my noble friend Lady Birk and others with similar experience. We must appreciate, too, that it is in these courts that something like 98 per cent. of criminal cases are tried. It might therefore be thought possible, in view of our experience, that we could make a useful contribution to the Bill. Of course when one gets a highly contentious Party political Bill like the Industrial Relations Bill, it is an entirely different matter. But this being criminal justice legislation, it should not be a Party political Bill. I therefore hope that the Government will at least say that they are prepared to give further thought to this matter.

5.7 p.m.


I certainly should not like the noble and learned Lord, Lord Gardiner, to go away with the idea that I have not listened very patiently, and I hope sympathetically, to the various speeches that have been made from the Benches opposite, or that I shall not attempt to reply to them to the best of my ability and professional judgment. It is not that I feel—nor do I think the Committee will feel—that there is any Party political issue here. The Government of the day are responsible both for the enactment of major criminal law and for its application up to the point at which it enters the court. This is, therefore, a Government Bill, and my right honourable friend the Home Secretary must take responsibility for the policy which is announced. This is far from saying that the Opposition are not well entitled to ventilate various suggestions. But it is equally the duty of the Government to subject them to scrutiny and criticism and to say where they agree and whether they differ.

It is true—I think it is true of every Parliament—that the Government of the day tend to reject Amendments, usually because they are not acceptable. Even where the subject matter of debate is not one of acute controversy there are probably good reasons why many Amendments for which one may feel a certain amount of sympathy are not found acceptable. However, the noble and learned Lord should not take it amiss if I set out the reasons why the Government do not feel able to accept this particular one.

We start from a number of common points. The first is that the Widgery criteria are right. How far this Amendment embodies them is much more open to question than has been disclosed to the Committee so far (I will come to that later), but no one has spoken against the Widgery criteria. Nor do I wish to do so, because I think they are as admirable a set of criteria as could be devised. However, they were never designed as statutory criteria, and although an attempt has been made in this Amendment to impose on them the inflexibility and rigidity of Statute, it has signally failed in at least two important respects.

Secondly, the assumption is made by the supporters of this Amendment—an assumption which I personally do not share—that if this were embodied in the Statute the divergence in practice where it exists would be reduced. It is in the interpretation and application of the criteria and not in the knowledge of the criteria that such divergence of practice probably takes place. But may I start at the reverse end of the argument because a somewhat misleading impression has been created about the present state of the game in the courts as they are applying the law at the moment? In this connection it is not altogether inappropriate for me to remind the Committee, and the noble and learned Lord, that some of the surveys from which he quoted liberally are, to say the least of it, out of date. Criminal legal aid, to my recollection (I am relying on my memory here, and if I am wrong I shall be corrected), began in 1965. and the Mrs. Suzanne Dell survey took place in 1967. It is perfectly true that in the early days of criminal legal aid magistrates' courts applied rather divergent criteria—which was one of the reasons why Widgery was so important—and also gave aid rather less generously than they do now.

The point is that it is now given with very great generosity and that generosity is increasing significantly year by year. Let me give just one or two figures. I forget how many benefited in 1967, but it was a relatively low proportion compared with the figures that I am now going to quote. In 1970—and I deal now with committal proceedings; I shall deal later with summary proceedings—97 per cent. of the applications were successful. That leaves only 3 per cent. where they were refused, and there cannot be in that 3 per cent. in committal proceedings very much room for divergency of practice unless one or two courts had gone completely haywire, which I do not think was the case. In committal proceedings 97 per cent. of applications for legal aid were successful. This last year, 1971 (of course 1972 is not complete), the figure was 97..5 per cent. There is now only 2.5 per cent. of applications in committal proceedings which are at the moment unsuccessful.


I wonder if the noble and learned Lord could clarify a point before he goes on. Am I right in my understanding that he is talking about applications that were made even in committal proceedings? They are not all committal proceedings, so that if anybody did not apply he would not be included in those figures.


I have said "applications in committal proceedings" three times in three sentences, so the noble Baroness is right. There are at the moment 2.5 per cent. of applications which are not granted and I do not think that that reveals either an appalling figure, so far as regards applications in committal proceedings, or a state of affairs about which much disquiet need be felt.

I mention that particularly because the noble and learned Lord, Lord Stow Hill, who proposed this Amendment with his customary courtesy and diligence, referred at the outset of his remarks to a particular case which has excited a good deal of public attention, in which a person tried on indictment was ultimately acquitted having spent eight months in gaol. That is obviously a deplorable state of affairs. I do not deny that. It is a deplorable state of affairs that he did not get bail. I cannot say why he did not because I do not know the facts of the case. But it is much more deplorable that he should have been kept in prison waiting for trial for eight months. Nor can I say, because I have not studied this case, whether or not he applied for legal aid, or whether or not he got it; or whether or not he applied for bail. Those facts I cannot refer to, but I should have thought that it was 98 per cent. certain, at any rate, that he had been given legal aid and he certainly seemed to have been represented at the trial, presumably under legal aid, because I read in the newspapers before the verdict was announced that his counsel had been cross-examining, evidently to some effect, one of the principal witnesses for the prosecution. So I do not think that this particular clause would have done any good although it is conceivable that it might.

In two respects the position has improved, as I pointed out in an earlier Amendment. When the Legal Aid and Advice Act comes into force, which will be early next year so far as I remember, the duty solicitor arrangements to which the noble Baroness referred will to some effective extent be capable of being applied, because the court will then be able to give legal aid summarily, in the form of a solicitor on the spot. In the case of the Courts Act, legal aid of course can be given so as to cover applications for bail. Therefore in these two respects the situation is even better than it was before.

In magistrates' courts, other than juvenile courts, 82.3 per cent. of applications for legal aid were successful in 1970. That figure went up to 83.7 per cent. in 1971. I cannot find the exact figure but I think that is a rise of more than 10 per cent.—although I say that with bated breath—since the Legal Aid Scheme came into force for criminal cases. This bears out my observation that legal aid is being applied on an increasing scale and that magistrates are more and more aware of the practice which has been recommended.

As I said, I do not accept from the noble and learned Lord that the fact of lack of representation is necessarily due to a difference in appreciation by magistrates of the rights of defendants or the Widgery criteria. I do not think it is without significance that many of these figures relate to London. Unlike the situation in my younger days, to-day not all magistrates' courts in London are stipendary courts, but a very large percentage of them are, and these are precisely the magistrates who I should have thought would most certainly be aware of and be applying, as they believed, the Widgery criteria. Therefore I challenge the assumption underlying the noble and learned Lord's argument that if we put a thing in a Statute giving a fairly wide discretion, as this clause would do, we should necessarily achieve uniformity of application. I do not think that is so. What is more, I doubt whether it would achieve greater uniformity of application than by the method proposed by the Home Secretary and contained in the Widgery Committee's Report.

To begin with, as the noble Lord, Lord Foot, reminded us, the Widgery Committee's Report is printed in Stone and I do not think, with respect to the noble and learned Lord—whose experience in this respect I know is probably as great as or greater than mine—that any real difference exists between the text and the foot- note in this respect. Magistrates look at both, and once it is written into Stone I do not believe there is any difference in the degree to which magistrates pay attention to it, although every effort should be made to bring home to magistrates their obligation to apply the correct criteria.

With great respect to the noble and learned Lord, I do not agree that it is unconstitutional for the Home Office to bring the Widgery criteria to the attention of magistrates' clerks. I do not agree with him that this is telling the magistrates what to do. It is bringing to the attention of magistrates what a Committee presided over by the Lord Chief Justice says are the factors they ought to take into account, and I do not see anything unconstitutional in that.

It may or may not be true—it is a matter that has often been debated in public—that the Lord Chancellor would be a better person to do it than the Home Secretary. But the facts of life are that the Home Secretary is the responsible Minister for criminal law and procedure, and although the Lord Chancellor appoints the magistrates he is not responsible for the criminal law or for the procedures which take place in their courts. Whether or not it is desirable to change that rule is irrelevant for the purposes of this debate. If the Lord Chancellor became responsible for criminal law in the magistrates' courts, the circular would emanate from the Lord Chancellor's Office, but it would be basically the same circular, and it would still be basically drawing the attention of the magistrates or the magistrates' clerks to the Widgery criteria and asking the magistrates' clerks to make sure that the magistrates themselves were aware of them.

That brings me to the terminology of the Amendment. The noble Lord, Lord Stow Hill, appeared to be under the impression that the Amendments embodied the Widgery criteria. But in fact they do not, and in, I think, the most important case, do not in a significant and it may be fatal, respect. The first of the Widgery criteria says that the charge must be a grave one, in the sense that the accused is in real jeopardy of losing his liberty or his livelihood, or of suffering serious damage to his reputation. In contrast to the demand for real jeopardy, the Amendment says: may be in danger of losing his liberty"— a very different thing— or that his livelihood may be imperilled or that his reputation may be seriously damaged … In other words, the basis upon which the Widgery criteria ask magistrates to apply legal aid is taken from a consideration of the individual case to a consideration of the generality of cases of the same class. That, I think, is a disastrous departure from the criteria, in a retrograde direction.

That brings me to one of the points made by the noble and learned Lord, Lord Stow Hill. I of course do not claim, any more than I think probably the noble and learned Lord, Lord Gardiner, or even the noble Lord, Lord Stow Hill, would, to have recent experience of magistrates' courts on a very large scale from the inside: it is probably a good deal less than that of my noble friend Lady Macleod of Borve or the noble Baroness, Lady Birk, in recent years. But once you apply the Widgery criteria you will certainly find that in magistrates' courts a very much larger proportion of cases do not qualify for legal aid. I think this is why the figure is 83.7 per cent. in summary cases and 97.5 per cent. in committal proceedings. It is simply not the case that in a great number of cases, even where on paper the case looks a serious one, the defendant would qualify on the Widgery criteria.

Take, for instance, a case of malicious damage, which is one of the offences cited by the noble and learned Lord in his speech. A person commits malicious damage by throwing a brick through a window. I remember that an old lady once threw a brick through my dining room window, and even before the war she did not suffer more than 40s. penalty. This was malicious damage. I do not think that that kind of case really qualifies for legal aid, especially in the present state of the legal profession. She was never in real jeopardy, because a sensible magistrate, looking at the case (there was no legal aid then, of course), would not punish the lady concerned severely, and the circumstances of the case were not such that she suffered a grave loss of reputation or that her livelihood was imperilled by what had occurred.

Therefore I think one must recognise that in magistrates' courts there will be a very large number of cases which in theory might be indictable: petty pilfering, all kinds of things which can be made to sound very serious by calling them stealing—as they are—but which are not in fact as dreadful as they sound when put in black and white. One does treat these cases, I am afraid—perhaps one is wrong—relatively lightly. Magistrates tend to visit them with relatively small penalties, and the public is more tolerant towards them than perhaps, in theory, a harsh and puritanical judgment might ask them to be. People are just not like this in the modern age—and I think they are right not to be. So I do not think one can draw too much from that.

Then there is another point that perhaps I ought to make: it may be one of my own, and therefore not a particularly good one, but it is a particularly strong reason operating on my mind against accepting the Amendment in the form in which it is being pressed upon us—that is to say, in a statutory form. I have been asking myself all along, as a practical lawyer, how one would police this particular section if it were included. Suppose a man is brought before the magistrates on a summary offence—say a hybrid offence like shoplifting—and is refused legal aid, or is not told of his rights (either would be a breach of the section), and is convicted. What happens then? He can appeal from his conviction. I suppose he can appeal from the refusal of legal aid. But in either case the matter will go to a higher court, and in the case of a straight appeal against conviction it will go to the Crown Court, where there will be a complete re-hearing. The man will again be able to ask for legal aid. The court starts afresh. He will either get it or be refused. He can then have his case heard with counsel and solicitors totally afresh. I am wondering at what stage (because it has not been explained to the Committee by any of the supporters of this Amendment) it would be possible to get a separate process for enforcing legal aid in a summary case, where it is admitted that in the Crown Court cases there is probably no need for a change.

However, at bottom I do rest my case on the same grounds that the Home Secretary's Minister did in the House of Commons. I think the Widgery criteria are entirely right. I think it is entirely right to impress them on magistrates and, so far as it is necessary—though I do riot think it is—to impress them on the Crown Court. But I do not believe that these criteria, which were intended as guidelines, should be used as other than guidelines. I do not believe that they play a useful part on the Statute Book as such, in the vague, and I think wrongly, assumed belief that this will cause magistrates either to apply them universally in the same way or to apply them in a different way from what each individually is doing now.

I think this represents—I do not know whether it represents a difference between the two sides of the House—a difference in pattern in the thinking of the noble and learned Lord and myself, because this has happened, I think, now about four times in this Committee stage. The noble and learned Lord and I probably think the same about what the results of cases and applications should be; there seems to me to be remarkably little difference in our general philosophy of either bail or punishment or legal aid; we are both for the utmost liberality in those three fields. But in each case the noble and learned Lord has pressed upon the Committee an Amendment which would add length and rigidity and complication to the Statute Book.

I wonder whether this philosophy of law-making is right. I do not think it is. I think one of the great vices of English law at the moment is the extraordinary insensibility, rigidity and complication of our Statute Book. Year by year Parliament churns out these over-elaborate Acts; and I am afraid this Government are just as much to blame as previous Administrations, and previous Administrations were just as much to blame as this Government. We all ought to take notice of something which may be of general application, but I commend it to the House—I was happening to read to-day for another purpose Lord Halsbury's introduction to the first edition of his Laws of England. He quoted from one of Napoleon's Commissioners, Monsieur Portalis. Talking about the Code Napoleon, Monsieur Portalis said: We have guarded against the dangerous ambition of wishing to regulate and to foresee everything. The wants of society are so varied that it is impossible for the legislator to provide for every case or every emergency. We know that never, or scarcely ever in any case, can a text of law be enacted so fair and precise that good sense and equity will alone suffice to decide it. A new question springs up: then how is it to be decided? To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic. It is for magistrates under Government, penetrated by the general spirit of the law, to direct this application. I think this is a suitable pendant to what I have to say about this particular Amendment.


Before my noble friend replies may I say I was listening to the noble and learned Lord the Lord Chancellor with fascination, waiting for him to get to the point. The point has not been touched upon at all it was not covered in any way by the Lord Chancellor's admirable and interesting speech. The point of this Amendment is that a number of people do not ask for legal aid at all. We questioned whether they know they have the right to do so. We think they ought to be told they have that right. The noble and learned Lord was speaking in detail. This is not detail it is a fundamental right given by Parliament and it is absolutely essential that people accused should know their rights. There is no question of detail. The Lord Chancellor's quotation from Lord Halsbury was splendid but again totally irrelevant. I really think we ought to get the particular point dealt with.


I thought the point was, and the point with which I attempted to deal was, this: was it better to contain these criteria correctly, as they were drafted by Lord Widgery, as guidelines, and published in the manual on the subject, or was it right to put them wrongly quoted, and significantly wrongly quoted, in the terms of a Statute. That, I think, is the point. The noble Lord's introduction—if he will forgive me for saying so—reminds me of the remark which was made to one of my Irish friends by a county court judge who said: Mr. Maurice Healey, does your client not recollect the maxim: 'Sic utere tuo ut alienum non laedas'? To which learned counsel replied: I can assure your honour that in the particular part of County Tipperary from which my client comes there is practically no other subject of conversation". I say with respect to the noble Lord that I do not believe that the people who are too inadequate to know their rights will know them better if they are embodied in an Act of Parliament rather than if they are repeatedly brought to the attention of everybody, by the Press, through speeches, by circulars and by Lord Widgery himself. It seems to me that that is the way to go forward and not to believe frantically that in the particular part of Tipperary from which these clients come they will actually be studying Section 75, as amended, of the Criminal Justice Act 1967.


The noble and learned Lord the Lord Chancellor included every source of information to the accused except the magistrate, which is the one I am asking about.


I do not know whether or not the noble and learned Lord the Lord Chancellor, can help noble Lords further on this, because this is the point raised by my noble friend Lady Birk and it is precisely the point which is so worrying us, and that is that the Government go on saying: "So many applications out of so many applications for legal aid"—as they did about bail, too—"are refused and so many are granted." Every research done in this field, both as regards legal aid and bail, is not concerned with who has got their application granted and who has had it refused, but with the very large numbers who are unrepresented because nobody asked them and they do not know enough to ask themselves. That applies both to bail and to legal aid. This Amendment, as the noble and learned Lord knows, starts off by providing that it shall be the duty of the magistrate—it is not at the moment—to see that the accused knows that he has the right to apply.


I think that is a slightly different point and as regards bail I think I have answered it in my reply to a previous Amendment. I had occasion to say in a different connection the other day how wrong magistrates are to leave it entirely to counsel or to the defendant to ask for a stay of execution when irreparable damage can be done, especially in infant cases, by removing an infant out of the jurisdiction before an appeal can be lodged.

I am the last person to differ from the noble and learned Lord in trying to impress upon magistrates that they ought always, irrespective of the presence or absence of counsel, to make quite sure in matters of this kind, whether of bail or a stay of execution or whether of legal aid, to make sure that in an appropriate case the person concerned knows his rights. That is not to say that in every case where an adverse decision is given the magistrate will say: "If you want to appeal we will grant or will consider an application for a stay"; not to say that in every appropriate case where bail would never be granted such as in the case of murder, you are entitled to ask for bail. That is not to say that in every case where it is not likely that the criteria are met there is a duty to remind them that they can ask, if really the only result will be that it will be refused. It is the duty of benches always to ask themselves—where, for instance, they contemplate sending a man to prison, especially if it be for the first time—whether they should not draw his attention to the possibility of legal aid, leaving it, as I do, to their discretion to do so. I think this is just the sort of thing which might be usefully contained in the various training courses that magistrates have to go through, and in the constant speeches which circuit judges and even Lord Chancellors sometimes make to magistrates reminding them of the best form of practice. I very much question whether the right answer is to put this into this particular Statute in this way.


If I may shortly reply to the debate, the noble and learned Lord stressed, as a matter of importance in his argument, that we had not in our Amendment accurately reproduced the Widgery criteria in two respects. He cited one, relating to the first limb, to the effect that in the Amendment the words may be in danger of losing his liberty appeared. If I remember correctly, what he said was that as quoted in Stone's Justices Manual the actual words are: was at jeopardy".


"In real jeopardy".


I accept there was a difference of degree but I would respectfully put it to the noble and learned Lord that it is no more than that. I would be perfectly happy, if the noble Lord felt he could accept the Amendment with that change, to introduce an Amendment with that change on Report. With great respect, I do not agree that it makes much difference to the draft as it appears. What the other respect was I do not know, because the noble and learned Lord did not tell us. The noble and learned Lord said that it was a mistake in principle to try to formulate with over-great precision the detail of every Statute, and that our Statutes were over-elaborate, cumbersome, and so on. He cited a passage from the introduction to the Earl of Halsbury's Statutes to support the general view which he propounded. That quotation was to the effect that if you were legislating you should take pains to state the broad principles, but that you should not let yourself become bogged down by detail, if I may so summarise it—I hope not disrespectfully—in that form.

May I just read the first limb of the criteria as we have sought to reproduce it: that the nature of the offence alleged is such that the accused person may be in danger of losing his liberty or that his livelihood may be imperilled or that his reputation may be seriously damaged; I should have thought that the source of the quotation which appeared in the passage from which the noble and learned Lord quoted would have wholeheartedly approved that language. He would have said, "That is exactly what you should do". I would venture to congratulate Mr. Silkin in having the foresight to foresee that that was the quotation that would be relied upon. Maybe he studied it and carefully formulated his draft, bearing in mind the injunctions of the writer who criticised over-meticulous drafting. I share in that principle, and I should have thought we could not improve on that.

The noble and learned Lord quoted figures. The figure which disturbs and distresses me is the one which I ventured to quote from the speech of Sir Elwyn Jones. I do not think that the noble and learned Lord criticised it; I do not think that he mentioned it. However, it is this figure which disturbs me, if I may give it to the Committee again: In 1970 there were 226,000-odd indictable cases tried summarily of persons over 17 years of age. In that quarter of a million indictable cases only 75,669 were the subject of a grant of legal aid. In 8,645 cases legal aid was refused. Therefore, if one adds together the cases in which legal aid was granted and those in which it was refused, they total some 84,000 out of a quarter of a million. It seems to me, if I read those figures correctly—and I think they were cited for this purpose—that it follows that in two out of three of those quarter of a million cases no application was made. It seems to me that that is the really significant and dangerous feature of this situation to which we should seek to address ourselves. It is appalling that in two out of three of that sort of case no application was made. If it had been made and refused, so be it; one would have to examine in due course, perhaps by another Amendment, whether the sort of grounds of refusal were right or not. But, if those figures are correctly understood and quoted accurately the melancholy conclusion emerges that two out of three of these people, for one reason or another, either ignorance, misunderstanding, or for whatever reason, just did not ask.

It is in order to deal with that situation that we have drafted the Amendment we have put forward. May I venture to offer what I submit is a slight correction to the approach of the noble and learned Lord in the language he used, in that he was rather considering these criteria which we have inserted in the draft as being the criteria which should govern the question, "Should, or should not, legal aid be granted"? We do not put them in for that purpose at all. We put them in for this purpose: where you find that a case falls within those criteria we do not say that legal aid should be granted; we say that the person who appears before the court should be asked, provided he is unrepresented, "Do you

wish to be represented or do you not? "That is the main point of this Amendment.

If he is asked and says that he wishes to be represented then the court must consider whether or not he ought to be represented. They may come to the conclusion that he ought not to be represented. If they come to the conclusion that he ought not, they must state their reason. The whole purpose of the Amendment is to ensure that when you get cases that fall within one of those six criteria—in other words, cases in which the question of whether or not the accused person should have bail should be taken into consideration—he must at least be asked. The matter should not be passed over sub silentio. If the figures which I have quoted tell the tale which I read into them at the moment, in two out of three cases that question is passed over sub silentio. That is a position we must try to rectify.

I hope that I have now made clear the object of the Amendment, which I submit is different from the object read into it by the noble and learned Lord. I may have misunderstood him, but that is what I thought he was saying. It was because Mr. Carlisle, in another place, certainly so misunderstood the Amendment that we ventured to return to precisely the same point before your Lordships' House. What we want to do is to ensure that in those two out of three cases the defendant should be asked—not necessarily in all of those two out of three cases but in all of them that fall within one of these five criteria—I said six criteria, but I mean five—if he is unrepresented, "Do you wish to be represented or not? "That is its purpose. Because this is an important Amendment, as my noble and learned friend Lord Gardiner said, and because I do not feel that we have had an adequate answer to it, I am disposed to ask the opinion of the Committee and press the Amendment to a Division.

5.48 p.m.

On Question, Whether the said Amendment (No. 45) shall be agreed to?

Their Lordships divided: Contents, 52; Not-Contents, 78.

Beswick, L. Champion, L. Diamond, L.
Birk, Bs. Chichester, L. Bp. Donaldson of Kingsbridge, L.
Brockway, L. Collison, L. Douglass of Cleveland, L.
Burntwood, L. Davies of Leek, L. Faringdon, L.
Fiske, L. Llewelyn-Davies of Hastoe, Bs. Stocks, Bs.
Foot, L. Lloyd of Hampstead, L. Stow Hill, L.
Gardiner, L. Maelor, L. Taylor of Mansfield, L.
Garner, L. Peddie, L. Walston, L.
Garnsworthy, L. Phillips, Bs. [Teller.] Wells-Pestell, L.
Greenwood of Rossendale, L. Platt, L. Wheatley, L.
Hale, L. Popplewell, L. White, Bs.
Hayter, L. Raglan, L. Williamson, L.
Henderson, L. Rhodes, L. Wise, L.
Hoy, L. Seear, Bs. Wootton of Abinger, Bs.
Jacques, L. [Teller.] Shackleton, L. Wright of Ashton under Lyne, L.
Janner, L. Shinwell, L.
Killearn, L. Slater, L. Wynne-Jones, L.
Lindsay of Birker, L. Snow, L.
Aberdare, L. Emmet of Amberley, Bs. Morrison, L.
Ailwyn, L. Ferrers, E. Mowbray and Stourton, L. [Teller]
Albemarle, E. Fortescue, E.
Balfour, E. Gainford, L. Moyne, L.
Berkeley, Bs. Gisborough, L. Northchurch, Bs.
Blake, L. Goschen, V. Orr-Ewing, L.
Boothby, L. Gowrie, E. Polwarth, L.
Bradford, E. Grenfell, L. Rankeillour, L.
Brecon, L. Gridley, L. Reay, L.
Brentford, V. Grimston of Westbury, L. Rennell, L.
Brougham and Vaux, L. Hailes, L. Rhyl, L.
Camoys, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Ruthven of Freeland, Ly.
Colville of Culross, V. Saint Oswald, L.
Cottesloe, L. Hanworth, V. Sandys, L.
Cowley, E. Harvey of Prestbury, L. Selkirk, E.
Crathorne, L. Hawke, L. Sempill, Ly.
Crawshaw, L. Hood, V. Somers, L.
Croft, L. Lauderdale, E. Strathcarron, L.
Daventry, V. Limerick, E. Strathclyde, L.
De L'Isle, V. Long, V. Sudeley, L.
Denham, L. [Teller.] Lothian, M. Swansea, L.
Drumalbyn, L. Macleod of Borve, Bs. Swaythling, L.
Dundee, E. Mancroft, L. Teviot, L.
Dundonald, E. Mar, E. Vivian, L.
Ebbisham, L. Massereene and Ferrard, V. Wakefield of Kendal, L.
Elles, Bs. Merrivale, L. Young, Bs.
Elliot of Harwood, Bs. Milverton, L.

On Question, Motion agreed to.

Clause 31 agreed to.

5.55 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 46: After Clause 31 insert the following new clause:

Costs on appeal

".The Criminal Appeal Act 1968 and the Court Act 1971 shall have effect with the amendments shown in Schedule (Amendments of enactments relating to costs on appeal) to this Act (being amendments relating to the powers of the Court of Appeal and the House of Lords to award costs, enabling an award to be made in favour of the prosecutor and facilitating consolidation of the enactments relating to costs in criminal cases)."

The noble Viscount said: I am delighted to be able to tell the Committee that with this Amendment go Amendments Nos. 54, 60, 61 and 67, and the substance really is in the new Schedule, Amendment No. 54. We want to con- solidate the law on costs in criminal appeals. There are some gaps in the provisions of Statute law relating to higher courts. The Court of Appeal at the moment when dealing with a case actually before it or on an application for leave, cannot give the prosecutor costs out of public funds. This probably does not matter very much in a large number of cases, but where there is a private prosecutor it obviously can be important and it is unfair that the court is not entitled by Statute to do it. There are also provisions when dealing with an application for leave to proceed to the House of Lords, whether in the Court of Appeal itself or before this House; so we provide the power that is not now present for both those courts to be able to award costs out of public funds to both the prosecutor and the defendant. Finally, there is a gap in powers of the same sort where there is an appeal from the divisional court straight to the House of Lords. Here again, the prosecutor at the moment cannot be awarded his costs out of public funds, whereas the defendant can. This is a series of Amendments which make sense, which are liberalising, and are of the sort, to judge from the mood of the speeches so far, to appeal to the Committee, and I hope that they will be acceptable. I beg to move.

Clause 32 agreed to.

Clause 33 [Power of magistrates' court to re-open cases to rectify mistakes etc.]:

LORD DONALDSON OF KINGS-BRIDGE moved Amendment No. 47: Page 25, line 37, at end insert ("and section 67(1) of the Criminal Justice Act 1967 (reduction of length of sentence by time spent in custody before sentence) shall apply to any sentence of imprisonment so varied.")

The noble Lord said: This is an Amendment of the purest innocence. The Howard League in their line by line examination of the Bill detected what seemed to them to be a flaw, and I thought it my duty to put it before your Lordships in the hope that the noble Viscount will either say that we are wrong in thinking this is a flaw or that he agrees that it is and will accept the Amendment.

To bring the Committee into the picture, Clause 33 allows magistrates to alter their sentences in order to rectify mistakes, and particularly says that the court may replace a sentence or order by another. Subsection (5) reads: Where a sentence or order is varied under subsection (1) of this section, the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed …". That is all right, but Section 1 of the Criminal Justice Act 1967 laid down the rule that time spent in prison before sentence could, with certain exceptions, count against the sentence. In the Committee debate in the other place Mr. Mark Carlisle agreed to extend this to the date of starting remissions and, with certain limitations, to the date of starting parole. It is a very important item indeed. All we are asking is that when, in order to rectify a mistake, a magistrate changes the date of a sentence from one date to another, these rules should apply. I feel certain that they are meant to; I do not think the Bill makes it clear that they do, and therefore I am interested to know what the noble Viscount has to say. I beg to move.


I entirely agree with the noble Lord, Lord Donaldson, that this is a very important matter. Certainly it is one of the things that is capable of causing the greatest possible trouble among the population of our prisons—that is, if something goes wrong in this sort of calculation—and it is therefore a matter very near to my own heart. I have looked at it very carefully to see whether there is a flaw, and I assure the noble Lord that there is not. The existing wording of Section 67(1) is wide enough to cover this, because what it says is that the rule to which he refers applies in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose … That is such wide wording that we have absolutely no doubt at all that remission and the other things to which the noble Lord referred will apply where an order is varied by the magistrates. It already does where the sentence is varied by a Crown Court or any other high court; and we are quite sure there is nothing that needs to be corrected here at all.


I am most grateful to the noble Viscount. His words are on record, and they will be enough to prevent this question arising even if there is any doubt about the wording. Therefore, with your Lordships' permission I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

Clauses 34 to 39 agreed to.

Clause 40 [Community service in lieu of warrant of commitment for failure to pay fine etc.]:

On Question, Whether Clause 40 shall stand part of the Bill?

6.3 p.m.


I should like to say a kind word for this clause, not many kind words having been said recently in this debate. This is the clause which enables magistrates' courts to make community service orders in cases of default on the payment of fines. The Non-Custodial Committee was very much concerned about the number of committals to prison for failure to pay fines. At the time they began their deliberations, the provisions of Section 44 and following sections of the 1967 Act were not in force, and the number of committals was very considerable. It ranged annually between just over 13,000 and just under 13,000. The Committee were divided as to the steps that should be taken to reduce still further the committals, so as to make sure that the only people who go to prison for not paying fines are people who will not pay fines as distinct from people who cannot pay fines—a distinction which is often extremely difficult to draw. The majority of the Committee thought that the 1967 Act made certain relaxations and made it possible to draw that distinction more clearly, and that therefore more time should be given before any further steps were taken. The minority thought that there should be a separate offence of wilful default on payment of a fine which should be separately proved like any other offence. But the Committee were absolutely united in their recommendation that the power to make a community service order should be available in the case of default.

I would add that it looks as if the hopes of the majority are not being fully realised, because the number of committals is now going up again. After the 1967 Act came into force it went down with a bang from 13,000 to 8,720 in 1968, but it has since crept up and it is now again over 10,000. The long and the short of it is that if this power given in Clause 40 of the Bill is put into operation it might make a quite considerable difference to the number of people who go to prison either because they will not or because they cannot pay their fines. For those reasons, on behalf of the Committee I should like very much to welcome the fact that this clause has been written into the Bill.


I am very grateful to the noble Baroness. Of course, this was one of the many recommendations in the Report of the Committee of which she was the chairman which we have adopted, and we adopted it gladly for the reasons which she has explained and which are explained in the Report of that Committee. I hope that this will be a useful and constructive thing. Of course, the noble Baroness will remember that there are also now the provisions about the attachment of earnings, which are more recent still than 1967. It may be that they have not yet made themselves fully felt, but I am a little concerned about the figures that she quoted. However, this is yet another alternative, and we hope that it will prove to be a constructive one. It was very nice of the noble Baroness to say those generous words in this connection.

Clause 40 agreed to.

Clauses 41 and 42 agreed to.

6.7 p.m.

LORD FOOT moved Amendment No. 47A: After Clause 42 insert the following new clause:

Amendment of Magistrates' Courts Act 1952

(".In section 105(4) of the Magistrates' Courts Act 1952 there shall be substituted for the word ('eight') the word ('twenty').").

The noble Lord said: I am afraid that the subject matter of this Amendment has not got the same interest value as some of the Amendments we have been discussing earlier this afternoon, but I hope the Government will think that it raises a matter of some importance, particularly because it is concerned with, as I think, a waste of public money. What I am seeking to do by this Amendment is to take the opportunity of this Bill to make an amendment to Section 105 of the Magistrates' Courts Act 1952, which deals with the general question of magistrates' courts remanding people in custody pending either their summary trial or their committal for trial on indictment. Subsection (4) of that section provides that where magistrates remand anybody in custody, refusing them bail, they cannot remand them for a longer period than eight clear days—and eight clear days means, in fact, nine days from the date when they are actually remanded in custody.

The fact that the interval between a person being remanded in custody and actually being committed for trial is very rarely less than a month, and is very often considerably more than a month, and because the magistrates cannot remand somebody in custody for longer than an eight clear days period, means that that person makes a succession of visits to the court from the remand prison to which he or she has been sent before the committal proceedings occur. In the vast majority of cases—and I do not think I am overstating the facts—the appearances by the accused person at that stage are a pure formality, because nothing in fact happens except that the prosecution or the police say, "We are asking for a further remand in custody", and the man is asked whether he has any objection or has anything to say. Usually he has not, for reasons I will explain in a moment, and he is packed off back to the prison from which he came.

It has been represented to me by people of great experience in the working of our magistrates' courts over a long period of time, that this results in a very considerable waste of time, money and man hours. First, it is a waste of the time of the magistrates. I am speaking of those cases where a remand is a pure formality. In all such cases it is an absolute waste of time for the magistrates. They have to deal with all these cases; the man must be brought up and sent down again and the procedure takes about 30 seconds. It is a waste of the time of the magistrates' clerk's office and staff. They must do all the documentation involved in shuttling these people to and fro between the prison and the court. Then, it is a waste of time for the prison administration. They have to make sure that the proper body is sent down every eight days to the court so that he can appear before the magistrates. But, above all, it is an enormous waste of time for the police, at any rate in my part of the country. I was speaking to a chief constable the other day who seemed to suggest that people other than the police do these escort duties. In Devon it is the police who have the burden. It is the police who have to go to Exeter Prison to collect prisoners and to bring them down and, after the formality of these appearances, to take them back to Exeter Prison. That, I think, is possibly the most serious waste of time and man hours because it is a waste of skilled people to have them doing nothing but ordinary escort duties.

I have tried to make some calculations of the extent of this waste. It is not easy to do so but I have had assistance from the clerks to the justices in Plymouth. First, I have made some inquiries as to how often on average a man makes these successive visits to the court before he reaches the stage of being committed for trial. In Plymouth—and we believe that we conduct our business there expeditiously—I am told that the interval between the person's original remand in custody and his committal is never less than three weeks and in the great majority of cases five, six or seven weeks.

Section 1 of the Criminal Justice Act 1967 (which, as noble Lords will remember, is the section that provides that you can now commit a person for trial simply upon the presentation of statements; you do not have to call witnesses to give evidence on oath) has had the effect of making the interval between the original remand and the committal rather longer because you must do a lot more in the way of preparatory work, in documentation and going through the statements of witnesses under the Section 1 procedure. It saves a great deal of the time of the court not to have to call on witnesses, but it has this spin-off effect of rather prolonging the interval between the original charge and the commitment. Therefore in the average case it may be that the prisoner comes before the court perhaps three or four times, quite pointlessly, between his original charge and his committal.

The second estimate I have tried to make is how much is wasted in time and travel. I realise that the circumstances in the South-West are different from those in some other parts of the country, but what is involved there in terms of mileage and time is quite frightening. We have only one remand prison. Exeter, which is 45 miles from Plymouth, is the biggest conurbation from where you would expect to draw the greatest number of people on remand. It is 120 miles from Penzance and something like 80 miles from North Cornwall. All these magistrates' courts have to send the prisoners they have on remand in custody to Exeter; so that if a person is taken from Exeter to appear at one of these entirely formal procedures in, say, Truro it will take the greater part of a day to get him there and back.

The situation as far as women is concerned is absolutely appalling. Fortunately, it is not common for women to be remanded in custody; but it happens. I had such a case the other day. A girl was charged with grievous bodily harm. She was remanded in custody in the only place to which women can be sent, to Pucklechurch, outside Bristol. It is 200 miles from Penzance and 120 miles from Plymouth. That girl made about six futile appearances in court (since there was no possibility of getting bail for her once it was refused) between her original remand and committal. In order that she could be at the court at Plymouth by 10.30 a.m. she had to get up at 4.30 a.m. in Bristol to be brought down all that distance and to be taken back after a two-minute performance.

The third matter that I wish to emphasise is my belief that the most serious thing about this is not the waste of money and transport but—and this is the aspect I spoke about before—the aspect of police man hours. I listened with attention to what the noble and learned Lord. Lord Gardiner, said about what the Labour Government had done when they got back into power in 1964, about the successful attempts they made to try to relieve the police of duties such as these which can be carried out by other people, so to leave the police free to engage in their proper business of detection and the prevention of crime. I am certain that to-day we are wasting hours, days, years of police time in escort duties of this kind.

What my Amendment seeks to do is to substitute for the eight clear days, 20 clear days; in other words, roughly a period of three weeks. The reason that I selected that period of three weeks is that in those cases where committal takes place as rapidly as can be, it will be possible to remand a man in custody to the actual date when his committal will take place. This proposal would enlarge the power of the magistrate to remand a person in custody. I have asked myself (as have we all) the question: what are the arguments for and benefits of the present eight-day period? I suppose that it will be said that if a man is having his liberty taken away and is to be detained in custody before a prima facie case is made against him, it is important for the public good that the matter should be reviewed at short intervals of time. If I believed that there was in the present procedure any protection for a person in that position, I should not be moving this Amendment. But my belief is that this short interval of eight clear days is not a real safeguard of the rights of the subject and of the rights of the unconvicted person; and that the safeguard it appears to provide is very largely illusory.

I say that for two reasons. The cases divide themselves into two kinds. When a person is brought down and remanded on a second occasion either nothing happens, as I have said before, and he just goes through the formalities; or it sometimes happens that he applies for bail or, rather, he re-applies for bail, because he has probably been refused bail in the first place. He then takes the opportunity on the second, third or fourth occasion to re-apply. If I thought that was useful for the protection of the rights of a subject, I should not be moving this Amendment. But I believe that it is an empty gesture. I say that for two reasons. First, it is almost impossible, in my experience, once a court of magistrates has refused a man bail and remanded him for eight days, to get the same court to reverse that decision, even though it may be composed of different magistrates. It is something which scarcely happens unless there has been some change of circumstances. As a matter of fact, if a person is refused bail his best chance of getting it is not by going back to the same magistrates' court eight days later, but by going to the circuit judge in the Crown Court. It is easier now to go to the circuit judge than it was in the old days to go to a judge in Chambers in the High Court in London. Therefore, I do not think that limiting the period of remand to eight days gives any protection for the rights of the individual, or makes it any easier for him to get bail when he comes again before the magistrates. As I said, I should not be moving this Amendment if I thought I was derogating in any way from the basic rights of a person at a moment of great tribulation.

But if it were thought that there was some potential danger in what I am proposing, I suggest that it could well be avoided by one or two safeguards. I should be prepared to accept the safeguard that a man could not be remanded for longer than eight clear days if he objected. I should also be prepared to accept a provision that a person could not be remanded for longer than eight days unless he was represented. I should be prepared to accept that if a person is remanded for, say, 20 days, or for a period in excess of eight days, and in the course of that time his circumstances changed, there should be some administrative arrangements for him to come back to the magistrates to tell them that his situation is different—that his wife is in hospital or whatever it might be—and that he wants to renew his application for bail. I suggest that it would not be at all difficult to find such safeguards. It is quite beyond me to try to estimate what is the waste in terms of money, but people I have consulted consider that the waste must run not into thousands or tens of thousands of pounds, but into millions. I do not know whether any figures are available at the Home Office, but that is the view of people who, I should have thought, were in a position to know.


May I briefly go on record as supporting my noble friend Lord Foot—if I may so call him. I look at this matter chiefly from the point of view of the local prison, which is one of the most regrettable parts of this civilisation. It is made worse by the constant movement and the need for escort duties, and by an absolute lack of even temper at any time. This Amendment would reduce by one-third one of the major and most tiresome and utterly useless obligations, and I have great pleasure in supporting it.


I am in two minds about this Amendment. I can see the point of it, but some things worry me and I do not know whether the Minister has the answers to them. I am worried about the change from eight days to 20. We are trying to get social inquiry reports and other committals down from 21 to 14 days in order to expedite matters, and I wonder whether 20 days is necessary. The point made by the noble Lord, Lord Foot, about circumstances altering and about there being some administrative safeguard, worries me. Perhaps this can be made more specific. With all the overburdening in the prisons and in the courts, this safeguard might be easily overlooked. If there were a condition that a man or woman must be represented, I think one would feel rather more moved to support the Amendment.

I understand what has motivated the noble Lord, and there is no need for him to reiterate that he would not want to do anything which takes away the liberty of the individual. But the procedure under the Amendment, as drafted, might react against someone's liberty and mean that matters would trail on rather longer than was necessary. As a magistrate, one is inclined to ask whether proceedings can be put in order in a week and very often, when there is detailed explanation, matters are expedited, although the Amendment may affect only a small number of cases. But I should like to hear more information on those points.


I wish to support my noble friend's Amendment. I do not have before me Section 105 of the Magistrates' Courts Act 1952, but I take it that if the word "eight" is changed to "twenty" it will mean up to 20, and not 20 automatically. If that is so, the objection of the noble Baroness, Lady Birk, falls to the ground.


When the noble Lord, Lord Foot, put down this Amendment I wondered what would be the view of the Committee, because there have been a number of speeches made about bail and about missing no opportunity for people to apply for it if they wish to do so. The noble Baroness, Lady Birk, was right to draw attention to the two principles underlying this very ancient provision. The first is the opportunity to apply for bail each time a person comes before the court. I think that the noble Lord, Lord Foot, could not have been in the Chamber when the Lord Chief Justice told us the story of the lorry driver in Yorkshire, who was remanded in custody on the first occasion he appeared before the court; but the next time, when they discovered something about him, he was given bail. It might have been an exceptional circumstance, but it is plain that there are cases when that happens.

The other point to which the noble Baroness referred was the need to hustle along the prosecution so far as possible, in order to make sure that they do not go to sleep on the job and leave someone languishing in prison or in a remand centre for any longer than need be. On the whole, the noble Lord, Lord Foot, has had a very peaceful reception for his Amendment. Even the noble and learned Lord, Lord Gardiner, ever watchful on the question of bail, has sat peacefully by and has not interposed at all. So I assume that the noble and learned Lord is in favour of this or, at any rate, is not against it. There are other watchful and vigilant. Members of the Committee who have been interested in this subject and they do not object to it either; they have not said anything. Therefore, I should like to respond to the suggestion of the noble Lord, Lord Foot, in this way. I am immensely attracted to the administrative saving. Nothing could be more agreeable to Government than to do what the noble Lord said and save the time of the police, the courts and the prison service, and a great deal of money, too, in this way; provided that we have the right safeguards, the sort of safeguards which the noble Lord suggested, and I was interested to hear that the noble Baroness, Lady Birk, supported him. Therefore, unless there is anybody who thinks to the contrary—in which case I hope he will say so now—I will take this matter away and see whether we can do something about safeguards. We might consider twenty instead of eight. Whether twenty is right is obviously a matter of judgment. If the Committee are prepared to accept this, and do not think there is any danger of people's liberty being taken away, or of their being kept incarcerated when they should have opportunities to apply for bail, we can probably do something along the lines suggested by the noble Lord.


I am astonished by the generous way in which the noble Lord has received my suggestion. I did not expect to get anything like so far, and I am very pleased. Does the noble Viscount know that this matter has been considered by the Justices' Clerks Society? It was they who suggested the two safeguards: that the person should be represented, and that he himself does not object. I should have thought it was an overwhelming safeguard to have both.


The noble Lord might add that possibly one has to consider the change of circumstances. I doubt whether it is sufficient to leave this to administrative procedure. I am not sure that that would do.


I am very much obliged to the noble Viscount and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.33 p.m.

LORD HACKING moved Amendment No. 47B: After Clause 42 insert the following new clause:

Subpoena of witnesses

(".—(1) A subpoena ad testificandum or a subpoena duces tecum may be issued by any magistrates' court and no order of the court for such subpoena shall be necessary.

(2) A subpoena issued male' this section shall continue to have effect until the disposal of the proceedings at which the attendance of the witness is required.

(3) A subpoena issued under this section must be served personally.

(4) Unless a subpoena issued under this section is duly served on the person to whom it is directed not less than two days, or such other period as the court may fix, before the day on which the attendance at court of that witness is required by the subpoena, that person shall not be liable to any penalty or process for failing to obey the subpoena.

(5) An application to set aside a subpoena issued in respect of the proceedings in a magistrates' court may be heard by a justice of the peace sitting in that magistrates' court.

(6) On the failure of any person to attend before a magistrates' court in answer to a subpoena issued under this section, if—

  1. (a) the court is satisfied by evidence on oath that he is likely to be able to give material evidence or produce any document or thing likely to be material evidence in the proceedings; and
  2. (b) it is proved on oath, or in such manner as may be prescribed, that he has been duly served with the subpoena, and that a reasonable sum has been paid or tendered to him for costs and expenses; and
  3. (c) it appears to the court that there is no just cause for the failure to attend, the court may issue a warrant to arrest him and bring him before the court at a time and place specified in the warrant.")

The noble Lord said: This new clause was tabled in another place but was not reached. It is therefore with pleasure that I commend it to your Lordships. Throughout this Committee, although I fear I may have trespassed into the world of the Probation Service, I have tried to take points which concern the practising lawyer. This new clause attempts to deal with a problem which is of concern to the practising lawyer, but of particular concern to the solicitors' branch of my profession. It deals with the procedure for compelling witnesses to attend proceedings before justices, and in doing so it seeks to equate these proceedings with the same proceedings before the Crown Court or the High Court or a county court. I anticipate that your Lordships may at this stage wish to put two questions to me. You may well be asking in what circumstances it is necessary to compel a witness to attend the court, and what are the present proceedings in the magistrates' court. Let me answer those two questions in turn.

There are two main circumstances in which it is necessary to compel a witness to attend a court: either because the witness himself is reluctant, or because those who are in control of the witness—his employers, for example—are reluctant for him to attend court or, more directly, reluctant for him to leave his place of work. Every advocate knows that it is unwise to call a reluctant witness, particularly if the advocate does not have a proof in his hands. Indeed, the much more common circumstance in which it is necessary to compel a witness to go to court is the other category to which I have referred: that the employer is reluctant to release his employee to attend trial unless that employee produces the appropriate document, which in this case is either a witness subpœna or a witness summons.

Let me now answer the second question which I posed: what are the procedures in the magistrates' court? They are laid down in Section 77 of the Magistrates' Courts Act 1952. The main features of that section are as follows. It requires a qualified man to appear before the justices and to ask for the order to be made. The application must be made in open court, and in the context of a firm of solicitors it will be made either by a partner of the firm or by an admitted solicitor who is in their employment. It cannot be made by others because there is no right of audience to a clerk or any other person in the firm who does not have a practising certificate. When the application has been made to the justices they issue an appropriate witness summons. It is worth comparing this with the practice of compelling witnesses to attend trial which is used in the Crown Court and also in both the High Court and the county court. In the Crown Court the witness is brought to court under a witness summons in accordance with Section 2(1) of the Criminal Procedure (Attendance of Witnesses) Act 1965, and the procedure is set out in the new Crown Court Manual. Similarly, in the High Court there is a subpœna under Order 38, and in the county court there are witness summonses under Order 20 of the County Court Rules. The process here is much simpler. It falls only under two heads. First a præcipe or form has to be completed by any member of the solicitor's firm (when the application is made by solicitors, as in all circumstances it is), and when the præcipe has been suitably completed the summons is issued out of the court.

How do these two procedures affect a practising solicitor? As I intimated at the beginning of my speech, this is a problem which concerns the practising solicitor. If it is in the Crown Court, the High Court or the county court, under the procedure of attending the office and merely filling in the appropriate form, it is easy to operate without heavy cost. Indeed a clerk from the firm can go, on instructions of the partners, at any time when the court office is open. On the other hand, the present procedures in the magistrates' court requires the attendance, as I have intimated, of a qualified member of the firm. It is restricted to the hours when the justices are sitting. Some courts sit only on one day a week, and I can quote as examples of such courts Aylesbury Magistrates' Court and Marlowe Magistrates' Court.

If the case is legally assisted it costs the Legal Aid Fund a sum of money for each attendance, and it has been calculated for me that each application costs not less than £6.30. Of course when more applications have to be made the burden on the Legal Aid Fund is even greater. Most important of all, it wastes the time of both the solicitor and the justices. This is particularly acute when the court sits no more than one day a week and the solicitor has received instructions only, say, two or three days before the hearing. He therefore has to go to the court to ask not only for an adjournment but also for the issue of a witness summons. If, on the other hand, he could have gone to the court office earlier in the week the appropriate summons could have been issued and the case heard on a named day. Clearly there is an argument against bringing (the magistrates—


I wonder whether my noble friend would allow me to interrupt him. I know he has been somewhat harassed, and I am very glad to see him here. I think he ought to tell the Committee that that argument now goes entirely because of the amendment made by Rule 88 of the Magistrates' Courts Rules, made in 1968. That rule allows for written application. One does not now have to proceed in the way which my noble friend has been describing.


As the noble Viscount has said, I have come here in slightly harassed circumstances and have not had an opportunity to look up that particular rule. At the first opportunity during the consideration of this Amendment I shall look up the rule. Certainly, my instructions are that the practice adopted in all solicitors' offices at the moment is a personal attendance at court. However, it is clear that the matter must be further investigated, and I will undertake to do that before this Amendment is heard out.

I do not have very much more to say to your Lordships. I recognise that I have to answer the fact that the procedure that I am urging the Committee to adopt by agreeing to this new clause could be open to abuse by litigants, and particularly by litigants in person. Perhaps your Lordships could rule out any abuse by members of the legal profession who, after all, are officers of the court and are answerable to the court. As for any abuse by litigants in person, it is certainly not the experience of the county courts—and the county courts have a number of cases in which there are litigants in person on either side—and there are powers for laying aside a witness order improperly obtained both under subsection (5) of this Amendment and by application to the High Court.

This is a new clause which would appear in the ragbag of the Miscellaneous Provisions of this Bill, and I am very conscious of it. At the same time, I think it right to recognise that it is a non-political and non-contentious enactment which would be suitable for a Criminal Justice Act, as this Bill will become. It does not have the drawback of being law-making—for example, a conspiracy Amendment—or of being in any way controversial, so that it may cause delay when the Bill is returned to the other place. But it is always desirable to have uniformity of procedure. This new clause brings the magistrates' courts into line with the other courts. I commend it to your Lordships, because it will achieve this further uniformity, it will save the time of justices and solicitors and it will save the Exchequer money. If there are any parts of my new clause the drafting of which do not meet with the approval of the Government, I shall undertake to consider them. I apologise to your Lordships for not having had sufficient time to look up these rules this afternoon. I beg to move.


I am afraid that I do not look with very much favour on this Amendment, and I hope to be able to persuade your Lordships, and indeed the noble Lord, why. Until 1965 there was another method of requiring a witness to go to the magistrates' court, and it was called a Crown Court process. During the debate on the Criminal Procedure (Attendance of Witnesses) Bill of that year, the House was persuaded that that process had been giving rise to abuse. It was a process which did not require the sanction of a magistrate before the subpoena or summons to the witness to come was issued. Therefore it was possible for somebody who had failed before one magistrate to go to another court and, without any explanation of why the witness was needed, get a Crown Court process requiring the witness to come. Of course witnesses are liable to be harassed if these procedures are abused. It was for that reason that the Crown Court process was abolished seven years ago. As the noble Lord, Lord Hacking, said, the result is that you now have to get the magistrates themselves to sanction a witness summons under Section 77.

This originally gave rise to a certain amount of difficulty for the sort of reasons which the noble Lord has explained. When in 1968 we amended the rules so that these applications for witness summonses could be made to magistrates in writing rather than by personal application, the previous Administration thought that they had cured the problem. This is the first occasion since then when anybody who has anything to do with the matter has heard that there has been any difficulty. I do not know who told the noble Lord, Lord Hacking, about this problem, but all the information I have is that this sort of personal inconvenience requiring partners to go no longer applies, and there is no difficulty; but that, on the other hand, the witness summons procedure is a necessary safeguard to prevent witnesses being called unnecessarily and wrongly, and is a safeguard which cannot be provided in any other way.

It is not like a civil case in a county court where, if somebody gets a subpoena and requires a witness to come unnecessarily, he can be, and is, penalised in costs. In a criminal case in a magistrates' court there is no such provision. Nothing that we know about the matter—and, indeed, the Committee agreed about this—suggests that there should be the safeguard that the sanction of the magistrate provides. For those reasons, I hope the Committee will feel that this Amendment is not a very good idea and, for the reasons mentioned by the noble Lord, Lord Hacking, is not even necessary.


The only appropriate course for me to take at this stage is to beg your Lordships' leave to withdraw the Amendment. But I will take an opportunity, if for no other reason than my own interest, to examine the appropriate rules. I was certainly given clear instructions—and I use those words advisedly—by more than one solicitor that it was necessary to attend personally at court. Whether this arises out of certain local practices developed by local magistrates' courts, where the local justices make it known that they are not prepared to grant witness summonses unless a person appears, I do not know. However, as I said, the only appropriate course for me is to beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 43 agreed to.

Clause 44 [Provision of day training centres, bail hostels, probation hostels etc.]:

6.46 p.m.


Page 30, line 9, at end insert— ("(1A) The Secretary of State may approve bail hostels; and in relation to hostels approved by him under this subsection—

  1. (a) section 46(2) of the Criminal Justice Act 1948 (Secretary of State's power to make rules as to management etc.) shall apply as it applies in relation to approved probation hostels and approved probation homes; and
  2. (b) section 47 of that Act (certain residential institutions to be subject to inspection by Secretary of State) shall apply as it applies in relation to the institutions mentioned in that section.")

The noble Viscount said: There is one gap in the Bill which this Amendment seeks to cure. Under existing legislation, and under earlier clauses of the Bill, my right honourable friend the Secretary of State can make rules governing the carrying on of day training centres, for the regulation, management and inspection of probation hostels and homes, and for the inspection, as it were, of unofficial probation hostels and homes for which he cannot actually make rules. We think that the bail hostels provided under this Bill ought to be subject to the same arrangement; my right honourable friend ought to be able to make rules for their good management and for the way in which they are run. Indeed, it would be ludicrous if he could not, because sometimes they will be in the same building as a probation hostel and he will be able to make rules and regulations only as to half of the building. I do not think there is anything very alarming involved in the rule-making power, because it has worked perfectly well in other institutions for years. He will also be able to inspect hail hostels, although he cannot make rules for them. I beg to move.


I think I am entirely in favour of this Amendment, but I just want to be sure what it means. There will be a certain number of bail hostels run under voluntary management. Voluntary hostels are at the moment under certain constraints from the Home Office, but I do not think the Home Secretary has the right to make rules for them. If he has, I have no objection; if he has not, then I think they should be accepted.


I did not explain it fully enough. The existing voluntary probation hostels are not subject to rules they are subject to inspection. The same will apply in the bail hostel field; the official ones will be subject to rules and inspection, and the voluntary ones to inspection only. That is what the Amendment states.


That is quite satisfactory.

On Question, Whether Clause 44, as amended, shall stand part of the Bill?

6.50 p.m.


Perhaps I could make a brief point on this clause. First of all, may I say how much I welcome the clause? One of the great problems that we deal with as magistrates is what to do with people whom we do not want to send to prison. There must be some sort of residential accommodation for them; therefore this clause is welcome. All I hope is that the hostels and homes multiply as quickly as possible.

There is one point I should like to make to the Minister. I did not put down an Amendment because it did not seem to be something which should be incorporated in the Bill but rather something which would be better done by administrative means, perhaps a circular. There should be encouragement to have mixed hostels and to get away from the segregated homes and hostels. As I understand the situation at the moment, there are none certainly which are supported by Government funds; there are only community homes of some sort run by voluntary organisations. In many ways we are moving towards the realisation, certainly in the educational field, of the need for mixing the sexes. Probably one of the reasons why this old-fashioned and out-dated procedure has been continued until the present day is that nobody has thought about it to a great exent. It is something that should be looked at.

When there are people together, either young or old, to keep them in what is often an unnatural environment can add not only to their burdens but also to the extent of the delinquency. I am thinking particularly of the situation where young men have either committed or have been alleged to have committed violent offences. To keep them bundled together, as it were, in a home or a hostel is not always the right thing to do. If the Minister remembers, there was a certain amount of discussion at the time of the setting up of the Grendon psychiatric hospital about whether women should be admitted. As I understood it at the time, the superintendent was against it if they were to be segregated and if there were not to be mixed groups for discussions, social activities and so on.

Having worked in the past in Holloway as a lecturer and then as a visitor I can see the great disadvantages there are in the attitude to segregation. I am not suggesting at this stage that the sexes should be mixed in prisons, but perhaps some encouragement could be given to probation and after-care committees to look at the matter. This seems to be an opportunity for trying out the odd pilot scheme to see how it works. Obviously it would have to depend on the people. I would have thought that the bail hostels and the probation homes would be the place to start. As there is a great deal in this Bill which is experimental, and rightly so, this would seem to be something which might also be introduced.


I agree with my noble friend that unisex hostels may be as dangerous as public schools. We want to be careful about this, but it seems that at the moment there is not the slightest thing to prevent anyone starting a mixed hostel. I do not think anyone has made an application or had it refused. As regards Grendon, my noble friend has not got it quite right. The position there was that the medical superintendent said that he liked to have women about the place but he did not want a few disturbed women shut up in the middle of a large number of disturbed men. He did not suggest that it should be mixed but that the more female social workers and others who could come in the better. Quite a few go in and it works very well.

My support for my noble friend is qualified by the fact that I do not believe any support is necessary. I want to add one word only. It is that under this clause, particularly subsections (1) and (2), the probation and after-care committees are told in no unmeasured terms that anything they spend on these things will be repaid to them. I want to point out that we have a large number of voluntary after-care hostels which are all halting in their progress through paying interest on capital which they have had to borrow. The hostels which are proposed under this Bill are all going to be given their buildings and capital equipment. This is very good. I just want to point out that voluntary hostels are not in this favoured position and that they will require a good deal more help than they have had up to date.


The noble Lord, Lord Donaldson of Kingsbridge, is right in saying that we do not need to do anything in the Bill about the point made by the noble Baroness. With the greatest possible respect I do not want to get involved on this clause in what did or did not happen when Grendon was started. I can tell the noble Baroness that what she suggests is one of the things which is being considered at the moment by a working group on accommodation for persons under court order. I gather that there is experience in the United States which indicates that minor problems tend to arise. This is something that is being looked at. I take the point of the noble Lord, Lord Donaldson of Kingsbridge, about the voluntary hostels but I do not think, again, that there is anything further I can say about it to-day other than that we note it.


Thank you very much. I am delighted to hear that this matter is under consideration.

Clause 44 agreed to.

Clauses 45, 46 and 47 agreed to.

Clause 48 [Representation of Crown Court on probation and after-care committees:]

6.57 p.m.


Page 32, line 36, at end insert— (" (2) A probation and after-care committee (" the principal committee") may, with the approval of the Secretary of State, delegate all or any of their functions to a sub-committee consisting of members of the principal committee and such other person (if any) as may be co-opted to be members of the sub-committee; but so that the number of co-opted members of the sub-committee shall not exceed the number of its members who are members of the principal committee.")

The noble Lord said: This is another nice quartet of Amendments because with this Amendment go Amendments No. 59, 66 and 70, so we are making progress. I am sorry to tell the Committee that this has to do with local government—a happy subject. There are at the moment provisions in the law whereby the Probation and After-care Service goes with the local authority. That we propose to continue. But in some of the metropolitan counties it may be that the service will be so large that to require it to be coterminous entirely and for all purposes with the whole of the metropolitan county would be less satisfactory than to allow it to be broken down. At the same time it may be difficult in these cases to fulfil all the jobs of the committee simply from those who sit on the main committee. Therefore there is sense in allowing power to co-opt for the sub-area committees.

Where a sub-area committee is exercising some of the powers of the main committee it is probably right that my right honourable friend should look at the extent to which delegation of functions is going to take place. That is why his approval is required under this proposed Amendment. I should have thought that it was probably a good idea that where we had these large metropolitan counties under the Local Government Bill there should be sub-areas with co-opted members working under a specific scheme which my right honourable friend has approved. This series of Amendments allows this to be done. We keep the formal arrangement whereby the Committee and the local authority area are the same but we tailor it to the very large metropolitan districts in this way. I beg to move.


If the noble Viscount will allow me to say so, this is an excellent Amendment and I have nothing but support for it. It is desirable that in these large metropolitan counties the supervision and the probation and aftercare work should be broken down into small areas. I would have wished that the number of co-opted members would be, say, two-thirds of the number of the members of the main committee—for obvious reasons. There should be perhaps a majority view of those who are actively engaged in the work of probation and aftercare supervision. But I do not make an issue of this, and would not dream of doing so, except to say that the probation officers themselves welcome the idea of having smaller units within the large unit because of the nature of the work they are doing. I am very grateful to the noble Viscount for putting down this Amendment.

Clause 48, as amended, agreed to.

Clause 49 agreed to.

Clause 50 [Abolition of duty to re-convey certain prisons to local authorities]:

On Question, Whether Clause 50 shall stand part of the Bill?


I think that everyone concerned with this subject is delighted that at last local authorities are able to cash their assets in order to replace them with something rather less dreadful than they have at the moment. I do not want anybody to think that what I am saying deplores this clause, which is admirable. Many of the prisons which will be sold are extremely valuable sites, and I think the Home Office will find that they have a bit of cash with which they can do good. This clause must not be allowed to pass, however, without pointing out that this is not giving permission to move all prisons into the country. Most prisons, particularly local prisons, need to be in urban areas. I thought of putting down an Amendment about this, but it seemed better to mention it on this Motion. What I think should be done is this: that as and when a local authority sell the site, they should be obliged to give a similar site within a certain area to the Home Office for building another prison. This requirement obviously could not be applied rigidly, but I should like to feel that the noble Viscount would have some reservations about " popping the lot ", if I may put it like that, because it is important we should not put all prisoners into the country, where the staff are unhappy and most conditions are much less satisfactory for the prisoners.


The noble Lord is quite right. The central position of local prisons is important and has to be carefully considered. One has not only the question of visiting, but that of availability to courts for people going to and fro for trial, remand, and such things. I can promise the noble Lord that we shall not " pop the lot ", and that if we are going to sell any of these sites to local authorities, we shall be extremely hard bargainers, to see that they provide, or help us to find, something suitable elsewhere. As a matter of fact, all this clause does is to repeal an extremely odd, ancient provision whereby the price at which the Prison Department —now the Home Office—can sell the site of a prison taken over from the local authority was kept down to prices fixed in, I think, the 1870s. We do not like this very much and it is not altogether fair, so we are taking the opportunity to repeal it. But I am glad to have the noble Lord's support on the points he made.

Clause 50 agreed to.

Clause 51 agreed to.

Clause 52 [Grants by Secretary of State for magistrates' courts purposes]:


This is a drafting Amendment to take account of the new Superannuation Act. I beg to move.

Amendment moved— Page 34, line 10, after ("thereunder") insert ("or made under the Superannuation Act 1972 for the same purposes as those of that Schedule").—(Viscount Colville of Cuirass.)

Clause 52, as amended, agreed to.

Clause 53 [Justices' clerks and their staff]:

7.5 p.m.

LORD SWAYTHLING moved Amendment No. 51: Page 34, line 24, leave out subsection (2).

The noble Lord said: The cases of default by either a justices' clerk or his assistant resulting in a monetary loss are very rare. In the past this loss has had to be made good by the local authority, and the provision which I am asking your Lordships to delete does away with this. The point, however, which is well worth noting, is that justices' clerks and their assistants contribute to superannuation funds so that in most cases the local authority hold quite substantial sums of money which would ordinarily be repayable to the justices' clerk on his resigning from his employment.

At present, in practice, if a justices' clerk misappropriates money and the local authority are as a result called upon to make good the deficiency to the Secretary of State, the local authority have recourse to the superannuation contributions standing to the clerk's credit to reimburse as much as possible of the money that has been lost through his defalcation. If this subsection is not deleted, public funds may not be reimbursed and the clerk, or his assistant, who has misapplied funds will be able to withdraw the superannuation funds when he ceases to be employed. I beg to move.


The noble Lord has bowled me out completely. I had no idea why he wanted to leave out this subsection (2). The point of subsection (2) as it stands is a good one, because its object is to avoid a double audit on these very small amounts of money concerned. At the moment, the double audit costs more than the actual amounts involved. We therefore wanted to do away with it. I had no idea that a point was involved about recouping from superannuation funds. I hope that the noble Lord will not press this Amendment because there is merit in the administrative arrangement of avoiding a double audit. Perhaps he will allow me to look between now and the next stage of the Bill at the point he has made.


While thanking the noble Viscount for what he has said, I would mention that this matter was drawn to my attention by a very senior justices' clerk. He pointed this out and made the suggestion, with which I agree, and therefore I put down the Amendment. I am glad to hear that the noble Viscount will look at it.


Will the noble Lord tell me afterwards who it is, so that we may get in touch with him?


I do not know that it would much help the noble Viscount; but I am very grateful to him for saying that he will look into the matter. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 53 agreed to.

Clause 54 [Powers of Parliament in Northern Ireland]


Page 34, line 47, at end insert— (" (3) Without prejudice to the foregoing provisions of this section, there shall be inserted at the beginning of Part IV of the Criminal Appeal (Northern Ireland) Act 1968, as a new section 48A, the section set out in Schedule (Section to be inserted in the Criminal Appeal (Northern Ireland) Act 1968) to this Act (being a provision corresponding to section 30 of this Act).")

The noble Viscount said: This Amendment introduces the new Schedule that is Amendment No. 56. The Northern Ireland Government, or those in charge of Northern Ireland on the Judicial side, whatever some members of this Committee think, have asked that the equivalent of Clause 30, upon which we divided earlier to-day, should be introduced into Northern Ireland. That is the effect of this Amendment and its concomitant Schedule. I hope that, with the decision of the Committee on the question decided earlier, we may now take this as a matter of form. The provisions and the safeguards in the Schedule are exactly the same as for England and Wales in the Bill; and this was done at the specific request of the Northern Ireland authorities. I beg to move.

Clause 54, as amended, agreed to.

Clauses 55 and 56 agreed to.

Clause 57 [Short title, interpretation, commencement and extent]:

7.10 p.m.

LORD HACKING moved Amendment No. 52A:

Page 35, line 36, at end insert— (" ( ) Save for sections 14 to 19, sections 28 and 40 and sections 43 to 48, this Act shall come into force on the 1st day of January, 1973.")

The noble Lord said: This Amendment concerns not only practitioners but also judges and justices, court officials, and indeed the editors of practitioners' and students' books. It is undoubtedly the wish of this Committee not only that those who are concerned in the enforcement of this Bill should understand its terms, but also that they should know when it comes into force. Until a few years ago it was the general practice for an Act to have the date of enactment on the face of it. It would arise in the latter section of the Act and would often be a specified date or a date six months from the Royal Assent. Of recent years there has been a new disease, a disease of enactment by Statutory Instrument, spreading through legislation and this Bill in its present form has the full disease. If this Bill is passed in its present form, it can be brought into force—I am not suggesting that it will be—section by section by different Statutory Instruments on widely different dates. This might well be to the delight of the civil servants who, after all, would then keep their options open, but it will be to the dismay of all those who are concerned in the enforcement of this Bill.

There are really two problems for those who are concerned in the enforcement of this Bill: one, to ascertain the date of enactment; and, two, to ascertain the date of the enactment in time. If a practitioner looks up the date of enactment in this Bill, he will get no help at all from Clause 57. He will then turn to the practitioners' books which are used in criminal law in magistrates' courts and in the Crown Courts—Stone's Justices' Manual or Archbold's Criminal Practice —and, again, he will get no assistance from either of those. Stone's Justices' Manual is an annual publication and he will not be able to discover the date because, if the Bill comes through in sections by Statutory Instrument, it will be a year out of date. Although Archbold's Criminal Practice has a quarterly supplement, it will again be five or six months later before the information in the Statutory Instrument is published.

Of course it is possible for solicitors' offices or barristers' chambers to take delivery of the published Statutory Instrument, but this is most expensive and hardly practicable. Therefore, members of both sides of the profession and indeed the Judiciary, have to fall back on such publications as Current Law, which comes out monthly or Butterworth's Weekly Law Notes, but again, there are difficulties here. First, there is the problem of correlation; and, secondly, those publications are not available to deal with a problem arising, particularly when sentence is being passed in a Crown Court. Furthermore, even with the most up to date publications, such as Current Law and Butterworth's Weekly Law Notes, a Part of an Act sometimes comes into force before it reaches them. I have noticed within the last few days, for example, that a section of the Hovercraft Act 1968 came into force before the news was published in the Weekly Law Notes, and long before it appeared in Current Law. I have dealt with these problems in relation to solicitors and members of the Bar, but exactly the same problems confront officers of the Crown Courts in trying to discover when a particular enactment comes into force.

In simple terms, my proposal is that the whole Act should come into force on a fixed date. I have chosen January 1, 1973, but if that is not a convenient date, then, clearly, another date can be chosen. The whole Act could come into force on a fixed date, except for those sections which require the setting up of new centres for penal reform, some of which are experimental and some of which are limited to certain geographical areas. In other words, I propose to exclude those clauses in the Bill which refer to community service orders, attendance centres and—that splendid title—detoxification centres, and certain probation and after-care committees.

I am very conscious that this Committee is anxious to complete its delibera- tions as soon as possible, because the House has to deal with other matters later this evening. There are more detailed reasons which I could put forward to commend this Amendment to your Lordships, but I trust I shall be forgiven if I do not go into greater depth. I recognise in going through this Bill that I may not have selected all the clauses that the Government wish to keep back from an open date of enactment; for example, there are administrative problems concerning criminal bankruptcy orders, and others which might also become the exception. But I commend this Amendment to the Committee, because it will make life much easier for the practitioners and all those concerned with the enforcement of this Bill and, also, it will not make life unduly difficult for the Government or for anybody else. I beg to move.


As a matter of fact, the disease which the noble Lord mentioned is an epidemic which has been raging among Criminal Justice Bills since 1948, because the one of that year and two subsequent ones of 1961 and 1967 have all had this commencement provision which brings in different parts of the Bill at different times. I fully remember, as would any one else in practice—and no doubt the noble Lord has this point in mind— that commencement orders of this type are extremely tiresome. On the other hand, there are books which help one, as the noble Lord has mentioned, and in one's own subject one can usually keep fairly well up-to-date. I would add that my Department is very conscious of the whole problem mentioned by the noble Lord, and we try to give a good deal of warning of the various provisions in a Criminal Justice Bill coming into force.

I think the danger here is that if we try to pin down the date in this way, we shall have to put in dates which are on the cautious side. Therefore, we shall not be able to bring in enactments as soon as would otherwise be possible. For instance, I see no reason why one should have to wait for community service order provisions to be brought into force. The sooner they are the better, because then we can get on with the pilot schemes. Otherwise, we shall not be able to make any progress at all and I think the noble Lord. Lord Donaldson of Kingsbridge, would think that was lamentable. I can, however, give some information about a tentative timetable, subject to our getting the Bill through this House. It has slipped a little—I am not criticising in any way—and there may be other difficulties. However, I think the vast majority of it will be able to be brought in on January 1 next. There may even be a few minor items which can start earlier still, but they will be administrative and I do not think they will give practitioners any trouble.

We cannot have the provision about juries for quite some time, because a lot of administrative arrangements have to be made in that connection. There are one or two financial provisions, such as Clauses 52 and 53, which have to come into force at the beginning of a financial year, so that will probably be April. Also, the criminal driving disqualification has to fit in with the computerisation of driving licence records, so that will not come in on January 1 either, because the computer will not be ready quite so soon as that. But, broadly speaking, the idea is to get this Bill into force at the beginning of next year, with those minor exceptions. We shall give all possible notice and will not bring in commencement orders a very short time before they become effective. Perhaps with that sort of assurance, and with the danger of actually postponing the operation or tying the Government down, the noble Lord will be a little mollified and may feel able not to press this Amendment too far to-night.


I am more than mollified and I will of course withdraw the Amendment. The noble Viscount has been most helpful, and I have particularly noted his promise to try to see that the Statutory Instruments are published in good time so as to enable those who edit our practitioners' books to have an opportunity to get this matter on the face of their books, if it cannot be got into the Bill itself. It is with a great deal of pleasure, therefore, that I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


Page 35, line 45, at end insert— (" (c) section 55(1) and Schedule 2 so far as they relate to the Petty Sessions (Ireland) Act 1851 extend to Scotland, Northern Ireland, the Channel Islands and the Isle of Man.").

The noble Viscount said: This is the paralysingly complicated Amendment which, with Amendment No. 58, results from the simple fact that in Northern Ireland the Royal Ulster Constabulary has decided to change the name of the rank of what used to be county inspector to chief superintendent. Consequential amendment of the Statute law is therefore required. I beg to move.

Clause 57, as amended, agreed to.

Schedule 1 agreed to.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 54: After Schedule 1, insert the following new Schedule—


The Criminal Appeal Act 1968

In the Criminal Appeal Act 1968

(1) In section 24 (award of costs on determination of appeal to Court of Appeal) substitute the following for subsection (2):— (2) The Court of Appeal may, on determining an appeal or application for leave to appeal, make an order for costs in favour of the prosecutor. (3) An order for costs under this section in favour of any person is for the payment to him out of central funds of such sums as appear to the court to be reasonably sufficient to compensate him for his expenses in the appeal or application (including any proceedings preliminary or incidental thereto) or in any court below.

(2) In section 28 (supplementary provisions about costs), in subsection (2) for " the appellant's" substitute " a person's".

(3)In section 31 (powers of Court of Appeal which are exercisable by single judge), in subsection (2)(g) for " section " substitute " section 24 or".

For section 39 (award of costs on appeal, or application for leave to appeal, to House of Lords), substitute—

"Costs out of central funds.

39.—(1) The Court of Appeal on dismissing an application for leave to appeal to the House of Lords, and that House on determining an appeal or application for leave to appeal, may make an order for costs in favour of the defendant or the prosecutor.

(2) An order for costs under this section in favour of any person is for the payment to him out of central funds of such sums as appear to the Court of Appeal or the House of Lords (as the case may be) reasonably sufficient to compensate him for his expenses in the case, being—

  1. (a) where the order is made (whether by the Court of Appeal or by the House of Lords) on the dismissal of an application for leave to appeal, any expenses of the application, and
  2. (b) where the order is made by the House of Lords on the determination of an appeal, any expenses of the appeal (including any application for leave to appeal) or incurred in any court below."

(5) In section 41 (general provisions as to costs under Part II of the Act), in subsection (2), for the defendant's" substitute "a person's" and for "his application" substitute "an application".

(6) In section 44 (powers of Court of Appeal under Part II which are exercisable by single judge), after paragraph (c) insert— (d) to make an order for costs under section 39".

The Courts Act 1971

In section 49 of the Courts Act 1971 (costs on appeal to Divisional Court and further appeal to House of Lords) for subsection (3) substitute the following— (3) The House of Lords on determining an appeal from a decision of a Divisional Court of the Queen's Bench Division in a criminal cause or matter may make an order for costs in favour of the accused or the prosecutor; and an order under this subsection is for the payment to that person out of central funds of such sums as appear to the House reasonably sufficient to compensate him for any expenses properly incurred by him in the appeal to the House (including any application for leave to appeal), or in any court below.") and in subsection (4), for "the accused's" substitute "a person's".

The noble Viscount said: This is the substantive part of the Amendments that I mentioned, relating to costs and appeals, when I explained that there were three gaps which we were filling up. I beg to move.

7.24 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 55: After Schedule 1, insert the following new Schedule—