CRIMINAL JUSTICE BILL

HL Deb 17 July 1972 vol 333 cc513-99

2.44 p.m.

VISCOUNT COLVILLE OF CULROSS

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

Moved, That the House do now 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 1 [Compensation orders against convicted persons]:

THE EARL OF MANSFIELD moved Amendment No. 1: Page 2, line 23, at end insert?— (" ( ) The powers conferred by this section shall be exercisable upon the application of any person aggrieved or, if there be no such application, as the court in its discretion thinks fit.")

The noble Earl said: I beg to move Amendment No. 1. The effect of this Amendment will be to declare that either a magistrates' court or a Crown Court can make a compensation order either on the application of the victim of a crime or, alternatively, on its own volition. Except in the case of various specific offences, the power of the court to make compensation orders in the past 100 years or so has been derived from Section 4 of the Forfeiture Act 1970, and Section 11(2) of the Criminal Justice Act 1948. Section 4 of the Forfeiture Act lays down a maximum of £400 and may be in respect only of damage to property. Section 11(2) of the Criminal Justice Act 1948 gives the courts power to make what is in effect a compensation order, limited to £100 in the case of a magistrates' court, for damages and compensation for injury and loss. No application on the part of the victim is needed in the latter case, but the order can be made only if the offender is put on probation or given a conditional discharge. In the departed days of plea bargaining, as a defending advocate one frequently took advantage of that manoeuvre. If some young "rip" was involved in a series of assaults and somebody was injured, the relatives collected £100 and one could go behind the scenes and see the judge ; the offender was not deprived of his liberty and the victim was awarded, sometimes unexpectedly, £100. Those days have, alas! gone forever. The effect is to sweep away all this legislation and the law is now restated basically in Clause 1.

The aim of this Amendment is twofold: first, to encourage the courts to make far more frequent use of compensation orders ; and, secondly, to give the victim the right of audience when the matter of compensation is aired in court. There is no doubt that the power to award compensation has been most sparingly used by the courts in the past. In Appendix E in the report of the subcommittee of the noble and learned Lord the Lord Chief Justice, one can see that in 1970 23,800 compensation orders were made. The vast majority were in cases of offences against property and only 138 were in respect of cases of malicious wounding. These figures are incomplete and not up to date, but one can gain from that how reluctant the courts are, even when they have the power, to make compensation orders in respect of victims of violence.

One asks the question: "Why have the courts been so reluctant?" I believe there are two answers. I have played a part in a great number of cases of compensation and restitution. Our adversary system, so far as criminal courts are concerned, has the Crown standing on the one side, so to speak, and the offender, as he becomes if convicted, on the other side. The courts are reluctant to go farther than their narrow function to adjudge guilt and to punish guilt unless somebody makes an application, or it is in somebody's interest that a compensation order should be made. Again and again one finds somebody who would quite like compensation but does not know how to set about obtaining it. In the end, it is left to the prosecution counsel to set the wheels in motion, but if he cannot or will not, or the judge is in a hurry to start a new case, nothing happens.

The second matter is this. The method of assessment is very difficult. If one has not been intimately concerned from the prosecution's angle with the preparation of a case for trial, it is difficult to understand. Suppose that as a result of, let us say, a brawl on a Saturday night a victim is assaulted and hurt, but not too badly. The offender is probably arrested fairly quickly, and a police officer, who is either off duty or thinking about being off duty, takes a statement from the victim probably within 24 or 36 hours. Then the case eventually comes to court. If by that time the defendant (as he then is) has been legally advised he may well plead guilty, informing the court beforehand. The victim is told on the telephone that he need not appear, and in that instance when eventually the court is told the facts nobody knows the effect on the victim's health: whether he has lost any money by way of wages ; whether he wants any compensation in respect of injuries, or what the position is at that time. So, however sympathetic a court is to the victim's plight, it simply does not know, and has no method of knowing, how to assess compensation, even if it is minded to award it and the victim is minded to have it. These, basically, are some of the difficulties in which the courts have up to now been placed in trying to make compensation orders.

The next limb upon which I would base this Amendment is this. It seems quite illogical and unfair that somebody who, as a victim, may be the subject of a compensation order has no right to be present, so to speak, and address the court, either himself or through counsel, when the question of his compensation order is raised. He may not be there ; he may have no idea what is going on ; he may have no idea when the case is coming up for hearing ; he may not want a compensation order at all ; and he certainly may not want the kind of sum the court has it in mind to award. In the Second Reading debate of this Bill in your Lordships' House, when I ventured to suggest that this was contrary to the rules of natural justice, my noble friend Lord Colville of Culross said that, so far as he was aware, or his information led, a victim would have a right of audience and a right to ask for an order. As this Bill stands I cannot see how anybody will have that right. The Bill specifically repeals the old Section 4 which gives somebody the right to make an application. This is entirely new legislation, and I should have thought that nobody would have the right to address a court unless it is written into this clause. Even if I am wrong about this, if one is going to try to encourage the making of compensation orders, in my submission it should be spelt out in black and white so that people and courts, and possibly reluctant chairmen of courts in the Provinces, where perhaps one might say the fighting is less thick, will know precisely what is their duty.

It may lastly be said that if this right is given to the individual, to the victim, it may have the effect, first, of increasing the number of applications made to the courts—undoubtedly it would ; and I hope it would—and, secondly, that the courts might find themselves getting embroiled in what I might call "mini-civil" cases" to decide questions of quantum of damage. My Amendment is drafted in such a way that the courts have a complete discretion. If, for instance, somebody comes along with two doctors and a surgeon and says that, as a result of the injuries he has received by way of assault, he is now going to have difficulty for the rest of his life, the court would, without doubt say, "No. This is not for us", and refer them to a civil court. But it should not be beyond the wit of the modern judge to take into account questions such as loss of wages and possibly a small sum by way of compensation for pain and suffering. If the courts get more applications of this kind I, for one, shall be very glad. It seems to me a peculiarly appropriate way of dealing especially with minor cases of violence that the offender is told, not so much, "You are going to be fined £50"—which will go into the coffers of the Treasury—but, "You are going to pay £50 to your victim. You are going to pay at the rate of £2 a week, and the court will see that you do." If a victim is told that he may feel better off, but, far more importantly, if an offender has any sense of self-respect—and in the case of some of these young rips it very often is there but a little below the surface—I suggest that dealing with him in this way will have a better effect and perhaps help him to become a useful citizen. I beg to move.

VISCOUNT COLVILLE OF CULROSS

I have listened with great interest to what my noble friend Lord Mansfield has said. One of the things he said towards the end of his speech is of great importance ; that is, that we must not encourage the criminal courts to become involved in anything which would be much more suitable for civil legislation. I was glad to hear my noble friend stress that point. I am inclined to think that there is something in this Amendment. It is nice to be able to give my noble friend encouragement on what is, I think, the first Amendment he has moved in this House. However, I wonder whether I may suggest just a few points to him on it. The Committee will probably agree that it is right to have got rid of the essential application by the victim under the 1870 Act. This is something which the Committee of the noble and learned Lord the Lord Chief Justice particularly recommended ; and of course this Bill implements it. There will be no need for any application by anybody.

What my noble friend is worried about is the opportunity for a victim to come forward, if he should wish. I said on Second Reading that I could see no reason why a victim should not come forward, or why any court should refuse to hear him. My noble friend now says that this ought to be written into the Bill. I would suggest to your Lordships that the important point is that, having got rid of (in the case of the 1870 Act, in any event) the requirement for an applicant to come and ask, before the courts have power, we should encourage courts at all levels always to think in terms of compensation in suitable cases. This of course the Bill helps to do and we will further assist them in that direction by means of some circular information about the Bill when it comes into force. I therefore think that possibly, psychologically speaking, the Amendment starts the wrong way round because it tends to go back to the application, rather than leaving it to the discretion of the court in the first place. There is, incidentally, a technical difficulty in that there would need to be a consequential Amendment on a subsequent clause.

If the Committee thinks that it would be better to put some specific reference to the right of audience for a victim in the Bill, I do not think I would be prepared to resist it, at any rate in the first instance at the original trial. But if my noble friend would be prepared to withdraw this Amendment, because I think I would rather have the phrasing the other way round, so as to place the duty on the court to think in every case, but also to take account of any application made by the victim, if there is one, then I should certainly be prepared to consider this point very seriously with a view to an Amendment at the next stage of the Bill.

THE EARL OF MANSFIELD

I am gratified for what my noble and learned friend has said. I dare say it is too much to hope that the first time I move an Amendment in your Lordships' House it will actually be accepted, but I take his point and do so with considerable gratitude. I am not sure that I agree with my noble friend that, by putting the Amendment a different way round, it is going to read any better. But I think I must bow to him and his officials who know so much more about this matter than I do, and in the circumstances, therefore, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

3.0 p.m.

LORD HACKING moved Amendment No. 1A: Page 2, line 25, after ("1911") insert ("the proviso to section 3(3) and").

The noble Lord said: I move this as a tidying-up Amendment and I hope that the Committee will be able to treat it as such. This Amendment concerns subsection (3) of Section 3 of the Criminal Justice Act 1948, which gives to the court a discretionary power to impose conditions during the period of a probation order upon the probationer ; for example, the condition of good behaviour. The proviso to that section reads as follows: Provided that (without prejudice to the power of the court to make an order under subsection (2) of section 11 of this Act) the payment of sums by way of damages for injury or compensation for loss shall not be included among the requirements of a probation order. Clearly that is recognised in Schedule 2 to this Bill. The proviso cannot be left in its present form because by deleting and causing Section 11(2) to cease to have effect that proviso, in its present form, would be in conflict with Clause 1 of the Bill which is now before the Committee. As is recognised in Schedule 2, in any event this proviso has to be amended to a certain extent by replacing Section 11(2) of the Criminal Justice Act 1948 with Clause 1 of the Criminal Justice Bill which is now before the Committee. I am asking the Committee to take it a great deal further than that and to say that this proviso should be deleted altogether. I think it would be right to examine with the Committee the purpose of the proviso before I argue the reasons why, in my submission, this proviso should be deleted.

The purpose of the proviso, as I read the Statute, is to prevent the court from making the payment of compensation a requirement of a probation order. For example, the offender's duty to pay compensation arid his duty to respond to a probation order according to the legislation are to be separate responsibilities. I argue that this severence is unreal. If a man does not bother to pay on a compensation order as ordered by the court, he is not, in reality, responding properly to the probation order.

There is a second argument which I also put before the Committee. Under this Bill there are quite a number of new methods of dealing with offenders. There is the attendance centre requirement in Clause 19 and subsequent clauses, and also there are the community service orders. Both the attendance centre order and, for breach of probation, the community service order, if this Bill passes through your Lordships' House in its present form, are to be made part of a probation order. I am asking the Committee to say that in all logic compensation orders should also, at the discretion of the court, be made part of the probation order. But I emphasise that by deleting this proviso we shall not be compelling a court to make a compensation order part of the probation order ; it will merely be giving the court liberty, at their discretion, so to do. I beg to move.

VISCOUNT COLVILLE OF CULROSS

I am grateful to the noble Lord, Lord Hacking, for explaining this situation. He has done so perfectly correctly. The only thing that needs to be brought to the attention of the Committee is that, as the Bill stands, there is nothing to prevent the court from making a probation order and also a separate compensation order. I know that the noble Lord is in no doubt about it, but it is an important fact and I think it is as well to make it clear. Therefore the crux of his argument is whether the two should be linked. To the best of my knowledge—and the noble Lord will tell me if he knows of cases to the contrary—there has been no pressure since 1948, when the proviso was first enacted, for the compensation orders—so many of them as there were—to be attached as part of the conditions of probation. I am sorry to say that the noble Lord's Amendment appeared rather recently and therefore I have not had much time to do further research into this matter, but I am not aware of any particular pressure for this to be done.

The difficulty about it is really twofold. First, although I think my noble friend Lord Mansfield said that it might be an appropriate penalty in some cases, one can envisage that the compensation is payment to a private person under the sanction of the court. I am not quite sure that the probation officer is the right person to get drawn into the details of this sort of transaction and to act as the agent of the private individual in this way, although he is doing it technically through an order of the court. But perhaps more difficult are the sanctions that would come about if the court were to make a probation order with a requirement that compensation should be paid as a condition of it. What happens if the offender does not pay the compensation? He is then in breach of the probation order and has to be taken back to the court. The noble Lord says that he could then be made subject to a community service order, or something of that sort, but one of the things the offender cannot be ordered to do is to pay it by instalments, as can be done at present. Supposing he has fallen behind in his payments, the breach of the probation order would not give the court the opportunity to extend the period for payments, certainly not over a period longer than the probation order itself. So if a large sum was involved one would inevitably come to grief at the end of the probation order. There is little else that a court can do. If the compensation order has failed it cannot bring back the man who is in breach and impose a fine on him, because ex hypothesi he would not pay that, either. There may be other reasons, and other good which would come from the probation order if it were to continue, which would be spoilt if the man had to be brought back and dealt with for a breach for not paying the compensation.

As I have said, I have not had a great deal of time to consider this Amendment but on balance I would advise the Committee that, as all has been well as far as I know since 1948, and since there is still power to run a probation order and a compensation order together, although not attached to one another, and as there are what I would suggest are some fairly important difficulties in combining the two—which perhaps was the reason why it was not done by Parliament in the first place—in these circumstances it would be best to leave the matter alone. I am sorry not to be more helpful to the noble Lord but that is, I think, as far as I can go in regard to this Amendment.

LORD DONALDSON OF KINGSBRIDGE

I should like to support the noble Viscount by expressing some doubt about this Amendment. It seems to me that the task of a probation officer is a difficult one. He is nearly always involved in trying to persuade his man to pay off back debts, and he does this by persuasion. If we add to that a compulsory deduction from the man's probably very spasmodic earnings, it is likely to make things too difficult. Therefore I am inclined to support the noble Viscount in his request that the Amendment should be withdrawn.

LORD HACKING

Having no supporters for my Amendment, I shall shortly seek permission to withdraw it. In the meantime, I wish to emphasise that I am not seeking in any way to compel the court to couple a compensation order with a probation order but merely to give it discretion in the right case to do so. If none of your Lordships supports me in this matter, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Appeals in the case of compensation orders]:

3.10 p.m.

THE EARL OF MANSFIELD moved Amendment No. 2: Page 2, line 38, at end insert— (" ( ) Where an aggrieved person has appeared in a court and a compensation order has been made in his favour notice of any appeal against the said order shall be served upon the aggrieved person and he shall have the right to appear when the appeal is heard.")

The noble Earl said: Your Lordships will see that this Amendment follows closely the first Amendment to Clause 1. However, it goes somewhat further because, as I suggest, if an order is made in somebody's favour and the decision is taken to appeal it is, to put it mildly, bad luck if the person in whose favour the order has been made is not allowed to say anything on the hearing of the appeal. One can imagine many instances where there may be an appeal against a compensation order. For example, if the victim is claiming compensation for loss of wages he may pitch his average weekly wage a good deal higher than in fact it is. It is extraordinary how people's average weekly wages fluctuate. Those of your Lordships who sit as magistrates will have been amazed how low average weekly wages are when you have been considering applications for legal aid. On the other hand, those of your Lordships who sit as company directors will have been amazed to note how high they are when applications for credit are made. If my noble friend will give me the same sort of assurance he was able to give in relation to Amendment No. 1—that this matter of aggrieved persons will be looked into—I shall be happy to withdraw the Amendment. I beg to move.

VISCOUNT COLVILLE OF CULROSS

It is sad, but I am afraid I cannot give my noble friend the assurance he seeks. There are rather more difficulties about this Amendment, certainly in the form in which it is drafted, and I think in principle as well. The Amendment would give the person who happens to have turned down at the court of first instance a compensation order made in his favour a very peculiar advantage, because he, and only he, would be able on appeal to make representations to the appeal court. This would be in direct conflict with what I said on the first Amendment about attempting to get the courts to "think" compensation. Why should the person who happened to be there—this would probably be rare, certainly more so than those cases where a court has granted compensation of its own volition—be the only one to be heard on an appeal? Those who for some reason could not be there—because the man pleaded guilty, because they could not get away or because they were not told in time—would be equally concerned with what would happen to their compensation order, but under the Amendment they could not be heard.

My noble friend's proposal would go further than that and, as I say, it is also a matter of principle. I said that I would look at Clause 1. While it is all very well to give a victim who wishes to turn up a right to be heard in the first instance, once one gets to the appeal proceedings then if there is a compensation order the appeal court will obviously know about it. It will be able to look at the reports and there will be no question of hurry in this type of case because all the documentation should be before the court as a result of the appeal. One must of course also consider the time involved.

If there were any question of the compensation order being amended or cancelled, it is likely to be either because the offence to which it attaches is thought not to have taken place or the sentence has been altered, or possibly, and more likely, because by that time it has become apparent that this is not one of those simple cases with which the criminal courts can deal but is more complicated and should be pursued in the ordinary way in the civil courts. For these reasons to give a victim, and a specified victim at that, locus to be heard in the appeal court would be cumbersome and unnecessary and would go against the principles I have explained. I therefore hope that my noble friend will not pursue the matter, as it would go rather too far.

LORD HALE

If nobody else intends to make some observations on this matter, I will do so briefly. The Amendment seems to bring us perilously near to the French procedure of the partie civile having an interest in a criminal prosecution being able to appear by advocate and Ro become, in effect, an additional prosecutor ; having more power and less restraint and not being bound by those rules which bind the prosecution in a criminal case. If the party who is injured is entitled to participate even on appeal as a party to the case, then we are really establishing a rule which most English jurists have deplored in contemplating the virtues and vices of the French procedure.

THE EARL OF MANSFIELD

My noble friend the Minister of State takes much too grave a view of what is likely to happen. My Amendment was drafted as a question of practicalities. Consider a magistrates' court in which someone obtains a sum of compensation for loss of wages. Suppose he claims two weeks at £20 and is awarded £40 and then, within the 14 days during which he is at liberty to put in his notice of appeal, the offender discovers that in fact his victim is an unemployed labourer who is certainly not worth £20 a week. He therefore puts in a notice of appeal against sentence and particularly against the compensation order. It may turn out, when that case is heard in the Crown Court, that the victim was an unemployed labourer. It may be that the offender is a thoroughly devious fellow who reads his OFFICIAL REPORT and knows what he has to do. How is the Crown Court to find out where the truth lies unless someone can tell it? The Crown cannot. It is not in a position to do so. Our courts are notoriously averse to receiving hearsay evidence, and rightly so. They may decide that the appellant is not speaking the truth. Are they to say, "We cannot deal with this because we do not have the machinery for finding out?" Presumably they will allow the appeal, possibly quite wrongly. Are they to say "The appellant looks a liar and we will not believe him in any event," and dismiss the appeal when he may be right? What are they to do?

To take up the point made by the noble Lord, Lord Hale, I assure him that it is not a question of an aggrieved person standing as a party between the Crown and the defendant. My Amendment simply seeks to give the aggrieved party the right to appear when the appeal is heard, and in my submission any properly constituted Crown Court or court of appeal—and it will be to those tribunals that these appeals will be directed—will, in the proper exercise of its discretion, soon stop an aggrieved party from doing any more than to put his point of view on the matter of a compensation order and whether the appeal should be allowed. The aggrieved party is not entitled to say that the appeal should not be allowed by virtue of something else which has nothing to do with the compensation order. All that I envisage the aggrieved party should be there for is to say: "Please do not disturb my compensation order because it was made justly and I wish it to continue ". If, for instance, the appellant achieves the upsetting of the conviction because the summing up in the lower court was deficient in some way, that would not give the aggrieved party or his counsel the right to say anything at all. It is really a question of quantum, and that is what I yam asking my noble friend to consider.

It seems to me at this stage, however, that since I withdrew my first Amendment, in all logic so far as this Bill is concerned there is not an aggrieved person, and therefore I seek leave to withdraw this Amendment also.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Review of compensation orders]:

3.21 p.m.

THE EARL OF MANSFIELD moved Amendment No. 3: Page 3, line 25, at end insert— (" ( ) Notice of any application under this section shall be served upon the person in whose favour the compensation order was made and such person shall have the right to oppose any discharge or reduction of the said order as the case may be.")

The noble Lord said: This Amendment is rather different in complexion from the first two. As your Lordships will notice, on this occasion I am not talking about an aggrieved person. Clause 3 of this Bill in effect gives the offender liberty to come back to a magistrates' court—and I emphasise magistrates' court—and say to it, "Your compensation order made against me is either too much or it is in respect of property which has been lost and has then been recovered." Once more the unfortunate person in whose favour the compensation order is made has no right of recourse. He may well wish to say to the court, "I do not agree that the injury, loss or damage in respect of the civil proceedings order is less." He may well say, "I do not agree that my lost property has been recovered." Even more, he may say, "I do not care if my lost property has been recovered, it is in a damaged condition and I still want some compensation." It seems to me that that is a thoroughly just and equitable claim to make, if it is right.

I do not think I can continue with this theme. It is a matter of natural justice that, where a person has been the subject of a compensation order (and this has nothing to do with an appeal), if the defendant says that the conditions have changed, that the situation is different from what it was when the order was made, the person who is the subject of the order must, in justice, be able to come back to the court and say, "No, they are not, they are exactly the same and I want my compensation, please." I beg to move.

VISCOUNT COLVILLE OF CULROSS

As my noble friend says, this is rather a different matter and I suggest to the Committee that here we are getting rather too far away from the whole point of this Part of the Bill, which is to provide a summary remedy in the criminal courts for fairly simple cases. I quite understand that the notional person about whom my noble friend was speaking, who has been to the civil courts (this is the first part of the Amendment) has had judgment in his favour and then finds that the compensation order is reduced or cancelled, may have some quarrel about it. But I would suggest to the Committee that the moment when the full amount of his loss should be dealt with, argued about and examined as the result of evidence and all the procedure of the law, is in the civil courts ; and if the civil courts have decided that a man should have so much in the way of damages then they will have taken account of what he has been paid by way of the compensation order. The whole scheme is designed to see that he does not get his money twice over. I cannot see room in this sort of summary proceeding for the victim to come back again when the order is being reconsidered by the magistrates, or the same court, as a result of a civil judgment, and be heard all over again.

The second limb of the argument is that once the goods have been returned then the magistrates' court—and it will be the magistrates' court in every case—can reduce or cancel the compensation order though the victim should be able to say to the court, "Oh yes ; the goods have come back, but they are damaged".

That, again, is getting away from the whole of the summary character of this remedy. For one would then have to decide by how much the goods were damaged ; what was their value before and after. I am afraid that I must advise the Committee that this is the sort of thing that, if it is to be dealt with at all, should be dealt with by the county court or some other civil tribunal where it can be properly examined. I fear that I have to resist my noble friend in this Amendment because it is complicating this summary proceeding out of all recognition and is really quite unsuitable for the criminal courts.

LORD GARDINER

Would the noble Viscount be prepared to think about this and the last previous Amendment, which I am sorry the noble Earl, Lord Mansfield, withdrew? There seem to be in this Bill provisions from which it is very difficult to tell how the Government intend them to work. If I may say so, I was impressed by what the noble Earl said. Here are two men both of whom are concerned with an order and who are probably the only two men who know the relevant facts. I find it very difficult to see how this scheme is going to work if, for example, in relation to the present Amendment, the convicted man is able to come back to the court seeking an order reducing the amount of the compensation. In such a case, who can check whatever facts he gives in evidence except the man in whose favour the order has been made, and who is the only other man who knows the facts? It seems very unusual to have an order that affects two people, the payer and the payee, and to provide for hearing one of them but to make no provision at all for hearing the other.

I fully accept everything the noble Viscount said about the desirability of not turning this into a civil inquiry for damages. On the other hand, for the reasons given by the noble Earl, I find it difficult to see how the courts themselves are going to work the system if a defendant can come back for a reduction and yet no provision is made for the court to hear the only other person who can check the evidence given by the convicted man. I quite see that there are two sides to the argument, but now that these points have been so forcefully put by the noble Earl perhaps the noble Viscount will say that at least he will be prepared to consider this further before the next stage of the Bill.

VISCOUNT COLVILLE OF CULROSS

I am always prepared to consider points and I am grateful to the noble and learned Lord for intervening. There is consideration and consideration. I have dealt with my noble friend's first Amendment in a very encouraging way but I am bound to say that I am less enthusiastic about this one, although, of course, when two noble Lords ask me (because I am sure my noble friend behind me will do the same) I cannot possibly refuse to consider it ; and I will gladly do so. There is a certain amount of heavy weather being made about the Amendment to Clause 3 that we are on at the moment. Perhaps I may say one word about the Amendment to Clause 2, although strictly I am out of order. There must be cases where compensation orders go to appeal courts and to the prime court now, and again I have not heard of any practical difficulties arising. It may be just because such cases are not brought to my notice or because they do not occur very often. I will make further inquiries to see whether there have been practical difficulties. If the court has the information before it in cases which it deals with now, then it is probably adequate to leave it.

As for Clause 3, where we are going a little further than the present law, the situation under subsection (3)(a) seems to me to be that there has been an order of a civil court, which has produced a sum of money, and subsequently the injury, loss or damage has been held in civil proceedings to be less, so that the sum awarded turns out to be less than the original compensation order made by the original criminal court. I should have thought the only way in which the first court could be satisfied would be by the production of the judgment of the civil court ; I cannot see how it is going to proceed at all without evidence of that sort. I do not truthfully know whether that is exactly how it is going to be done, and this is one of the reasons why I should like to take up the noble and learned Lord's suggestion to consider it.

As for paragraph (b), which deals with the situation where the person who has been required to pay the order claims that the goods have been returned—though in the case raised by my noble friend come back damaged—would not the Committee agree that, unless it is a simple case, we are here getting into the sort of realm where only a civil court can properly come to a satisfactory conclusion on the facts? I should not want to see magistrates dealing with difficult cases of this sort. I should have thought it would be the simple case that was right for them. Suppose that a piece of silver has been stolen and a compensation order is made ; the property is recovered and is returned intact to the person from whom it was stolen, so that he is no worse off. But if the article comes back with a great dent in the side, or with the handle broken off, then the whole question of how much it will cost to mend it is a very different one and, I should have thought, not a very easy task for magistrates to deal with summarily. However, I take the noble and learned Lord's point, and I will certainly consider again both these points my noble friend Lord Mansfield has raised, though not, I think, with anything like so much enthusiasm as the first one.

THE EARL OF MANSFIELD

May I try to breathe a little more fire into this matter? Somebody in the other place described this Part of the Bill at one of its stages as "window dressing". I ask my noble friend to have a little more confidence in magistrates. They already do a vast amount of different types of work, a lot of it quasi-civil. If, in this question of recovered stolen or lost property, the question of damage arises, why should not a properly constituted bench of magistrates decide the matter? If, for instance, somebody has a diamond ring stolen and a compensation order is made by production of a certificate from an assessor, and the ring then turns up and the offender says, "Please cancel the order", is it just that the person in whose favour the order was made cannot get up and say, "That is not my ring"? Secondly, can he not say that one of the stones has fallen out? Why should not the court be able to reduce the amount of the order appropriately?

As to this matter being, so far as the offender is concerned, more appropriate for a county court, I do not know whether that is so. The number of quasi-criminal matters which take place in a county court is tiny. Criminals, basically speaking are not worth powder and shot in a civil court. I believe that the Criminal Injuries Compensation Board consider it worth while to pursue a defendant in respect of whom an order has been made in only one per cent. of the cases. It may be that when my noble friend, along with some of those perhaps who have experience of these magistrates' courts, has considered this matter, he may take a broader view of it. I am very much afraid, as matters stand at the moment, that these clauses in this Part of the Bill will be used no more often than Section 4 of the Forfeiture Act 1870, which is hardly at all. Unless the court have confidence that they can, as it were, have the power and the ability to go into these questions of compensation, assess the damage—admittedly in a humble way, not like a High Court judge in a running down case—according to their abilities, I very much fear that all these clauses will have much less effect than is, I hope, the idea of the Government at this moment. In the meantime, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clauses 4 to 7 agreed to.

Clause 8 [Appeals in the case of criminal bankruptcy orders]:

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 4: Page 7, line 7, leave out from beginning to ("and") in line 8 and insert— (" (a) in any case until the expiration of the time for applying for leave to appeal to the House of Lords against the Court of Appeal's decision on the appeal against conviction (disregarding any extension of time which may be granted under section 34 of the Criminal Appeal Act 1968), (b) if an application for leave to appeal is made within that time, so long as an appeal to the House of Lords is pending.")

The noble Viscount said: This is an Amendment for which I am indebted to the noble and learned Viscount, Lord Dilhorne. There are, of course, in your Lordships' House the noble and learned Law Lords, who know all about the machinery for getting an appeal in a criminal case from the Court of Appeal here. The noble and learned Viscount pointed out to us privately, and I am much obliged to him, that there appeared to be a drafting defect here, whereby if the Court of Appeal had in a criminal case refused leave to appeal to the House of Lords the bankruptcy order under Clause 8 of the Bill came into effect, notwithstanding the fact that there was still the possibility for the offender to apply for leave to appeal to the House of Lords, which can take place after, indeed only after, the Court of Appeal has refused leave itself. Therefore we have sought to meet this point by filling that gap in as well.

I am bound to say that I do not think it is as easy as all that, because there is, unfortunately, a provision under Section 34 of the Criminal Appeal Act 1968, which is mentioned in the words in brackets, which, technically speaking, allows a respondent—that is, not the prosecution—to apply to the House of Lords for leave to appeal at any time. And it is because of the words "at any time" that we have had to put this provision into brackets and disregard it ; otherwise we should never get the criminal bankruptcy order going at all. There is a respectable precedent for this, because the same words in brackets have been applied in recent legislation. Therefore, it seems to be the most satisfactory compromise we can get, and it certainly covers the period when somebody, having failed in the Court of Appeal, is applying to the House of Lords for leave to appeal to this House in the case of a criminal conviction. I commend this as being an improvement to the Bill, and I am grateful to the noble and learned Viscount for pointing the matter out. I beg to move.

On Question, Amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 agreed to.

Clause 10 [Suspended sentences]:

3.38 p.m.

LORD GARDINER moved Amendment No. 5: Page 8, line 5, leave out ("cease to have effect") and insert (" have effect subject to the following proviso: That the Court need not make an order under section 39(1) of the Criminal Justice Act 1967 where the offender has at any time before the commission of the offence been sentenced to any custodial sentence or has three or more previous convictions for an indictable offence.")

The noble and learned Lord said: I move this Amendment, which I think is, in the view of some of the Members of your Lordships' House, at least among the more important of the Amendments on the Committee stage of this Bill. The plea which I make to the Committee is that in dealing with this difficult question of crime and punishment we should eschew emotion and determine our conclusions on evidence and on rational grounds. I am, if I may say so, an admirer of Mr. Mark, the new Commissioner of Metropolitan Police, but he recently somewhat surprised some of us by a statement intimating that juries were quite wrongly acquitting enormous numbers of highly sophisticated professional criminals. He did not give any evidence on which he based that statement. It was apparently accepted by the Criminal Law Revision Committee, also without any evidence. This morning we know from a whole page in the Guardian what the true facts appear to be. This article comes from a research team which has investigated 475 cases tried at a group of assizes and quarter sessions over the period March, 1968 to July, 1970. Each trial was observed and the researchers discussed the case with the defending and prosecuting lawyers, the police, court officials, and in some cases with the judge. They had access to the police records and files. The surprising conclusion is that in 33 per cent. of these acquittals the jury were directed by the judge to acquit because there was no evidence on which anyone could properly be convicted.

The next largest group, 25 per cent., were prosecutions which the police did not intend should result in conviction ; they did not think they would get a conviction, and if they had they would have thought it wrong. These particular prosecutions had been brought for policy reasons of the nature which is discussed in the report. The smallest group, 9 per cent., was where the team came to the conclusion that the jury probably ought to have convicted ; but these were not cases involving sophisticated professional criminals at all, but poor people—for example, an old man of 75 with an unblemished record who had not really done any harm, and lovers' quarrels, family tiffs and things of that nature. They conclude by saying: There is no support here for the view that most acquittals involve people with previous convictions or that the recidivist stands a better chance of acquittal. Nor do the individual case histories set out in the report support the case of Mr. Robert Mark, the Metropolitan Police Commissioner, that most acquittals concern desperate, sophisticated or even professional criminals.

It is always wise to act on a basis of factual knowledge. When we discussed the question of mandatory suspended sentences in January last year I said that I thought they ought to be reconsidered. I said I had been very doubtful at the time of our Act of 1967 whether it was right to make them mandatory, but that I had no doubt that to be able to suspend the sentence was a useful power for a court to have, and that it appeared to me that the magistrates, for reasons I quite understood, had not been operating these provisions in the way in which it had been intended they should. It took some time before the Court of Appeal on these occasions made it plain that magistrates should not consider a suspended sentence at all until they had decided that the case was not one for a fine or probation but was one which could be met only by having a prison sentence ; and only then, for the first time, should consider whether that sentence should be immediate or suspended. It was for these reasons that I felt that the whole question of mandatory suspended sentences ought to be reconsidered. I said I had reached no final view on the matter.

I have now to some extent changed my mind. I think that with one or two exceptions mandatory provisions ought to remain. I have formed that view entirely because of some very recent evidence. In the first place I think the magistrates now understand what the court told us in O'Keefe's case. I think that the Government were quite right to accept an Opposition Amendment incorporating the law as so laid down in the Bill ; that would be there for the magistrates to see. Secondly, there have been two Home Office memoranda from which I have derived knowledge of a great many things about which I did not know before. It appears that it is not so much on the mandatory side that the thing went wrong, but where the suspending of the sentence was discretionary. If that is so it does not afford solid ground for increasing the discretion of the justices in this field. It is quite clear, I think, that for first offenders this innovation has been a success, because the rate of breach (that is to say the commission of a further offence during the period for which the suspended order was made) amounts to only 11 per cent., so I do not know why we should want to send more of those to prison. It appears that mandatory provisions have been a failure in two cases ; namely, first, where the offender has already had a custodial sentence and, secondly, in cases where he has already had three previous convictions even though he has had no custodial sentences. What this Amendment would do, therefore, is to keep mandatory provisions but to exclude those two classes of cases.

There has been a good deal of argument as to the effect of the Bill if we were to abolish mandatory suspended sentences, but there is no dispute that to do so would mean an increase in our prison population. The memorandum itself says that the probable consequence of repeal of the mandatory provisions will be some immediate increase in prison receptions and, therefore, in the prison population. We know the conditions in our prisons and how terribly overcrowded they are. In another place the honourable Member for Birkenhead, Mr. Dell, gave detailed reasons, which I will not now repeat, as to why he thought the probable increase in receptions, if we pass the Bill unamended, would be 2,000, and in the permanent prison population, 1,200. The Home Office have been very "cagey" about this ; they say they do not accept the figure of 2,000, but they will not say what they do think. I find it difficult to believe that the Home Office must not have applied their minds to considering the administrative arrangements they would have to make and to what extent, if this clause remains in its present form, the prison population will be immediately increased.

Before going further I should like to point out that this valuable memorandum, after making it clear that the study suggests that the sample is considered to be reasonably representative of all males given suspended sentences and that the majority of suspensions may be discretionary, then deals with the two groups to which I have referred. The memorandum says that the most significant factor influencing the breach rate was the existence of a previous custodial sentence, including detention centres, borstal and prison. The number of previous convictions was also important. These two variables are in any case related. The more previous convictions a man has the more likely he is to have previous custodial experience. Then are given the breach rates: for those with no previous custodial sentence, 31 per cent. ; with one previous custodial sentence, 56 per cent ; with two, 67 per cent. ; and with three, 75 per cent.

It is not sensible that we should continue making mandatory a course that we know will probably fail, as in cases where there is one previous custodial sentence ; the breach rate is as high as 56 per cent., which shows it is more likely to fail than succeed. Where there are no previous convictions the breach rate is 11 per cent. ; one previous conviction, 29 per cent. ; two previous convictions 39 per cent. ; three previous convictions, 44 per cent. and so on. They say the existence of previous custody or previous convictions makes a breach much more likely and that it also affects the relationships with other factors, age and type of offence, to the breach rate. Those things being so, it is the sensible course to take to continue the law as it is, but subject to those two exceptions? If I may ask the noble Viscount a question, is it true, as stated by the Opposition in another place and not contradicted by the Government, that when they framed this legislation and introduced it into Parliament, they were quite unaware of any of the facts to which I have referred? If so, this was not their fault at all, because this study team has only just reported to the Home Office.

Is it true, as stated in the other place and not contradicted by the Government, that none of these facts was known to the Government on the Second Reading of the Bill, or during its long Committee stage? If so, is there not a strong case in this House for applying our minds to this entirely new information, which apparently only reached the Government in time for the Report stage of the Bill in the other place? Even then there was no division on this point because it was dealt with at two o'clock in the morn- ing, and there were not enough people there.

I submit that in the field of crime it is no good acting on hunches ; we ought to act on evidence. Quite recently the cat has put its head out of the bag, at least in relationship to what the Home Office really thinks about the extent to which the Bill, if left as it is in this clause, will increase the prison population, because on June 27 Mr. W. R. Cox, described as Director-General of the Prison Service, giving evidence to the Public Expenditure General Sub-Committee of the Expenditure Committee was asked about the increase which would be likely, and he said: I am not sure we can put a figure on the end of the mandatory suspended sentence in these estimates, but there may well be when the Criminal Justice Bill comes into force another upsurge in the prison population. He was asked about calculations by Mr. Roper as follows: Were calculations made of the increase in the prison population that was likely to follow the end of the mandatory suspended sentences? Mr. Cox. We can calculate the top and bottom figures. The bottom figure is obviously nil ; the top figure we believe to be somewhere around 3,500, but it might be anywhere between those two extremes. Mr. Roper. I was not sure whether 3,500 was receptions or population. Mr. Cox. 3,500 is the population figure. The reception figure will obviously be very much higher than that, and it looks as if Mr. Dell's calculations, if anything, erred on the safe side.

It is not wise in this field to keep chopping and changing. We have had mandatory suspended sentences only for four years. Quite naturally, and I am not blaming the Home Office, nobody until just the other day has been able to conduct a sufficient research into what the actual result has been. It is not the fault of this Government because, as I understand it, the Government of which I was a member took no step, at the time when the Act was brought into force, to start a small unit from there to keep a watch on what mandatory suspended sentences were doing, but we know now. Does it not to-day, in the overcrowded position of our prisons, need a very strong case before we assent to a measure which we are told by the Home Office may result in an increase of up to 3,500 in our prison population?

As I say, this has only been in force for four years ; there is some reason for optimism because I am sure that the justices now increasingly understand what they were told in O'Keefe's case, which is now in the Act, and where it is discretionary will act in accordance with those principles. There is nothing to show that mandatory suspension has had any untowards results except in these two classes of cases. Therefore, what this Amendment would do is to keep it as it is, but not in relation to those two classes in which it is shown that the breach rate is so high. That, I suggest, is the course which a rational decision based on this very recent evidence should lead us to, and I beg to move accordingly.

3.55 p.m.

LORD DONALDSON OF KINGSBRIDGE

My noble and learned friend, as might be expected, has left very little for people who agree with him to add to the argument. The discussion to-day on all sides has been entirely among lawyers, so I hope that you will find it not unrefreshing that I once again claim lay status in this category. I should like to mention one or two rather more general things. Before doing so, may I say that I do not think that my noble and learned friend brought out the full significance of the difference between receptions and population figures? In normal calculations, roughly speaking, it takes three "receptions", and sometimes four, to equal one "population", because the commonest sentence is six months and, after remission, it comes out at four months. So that if there were a figure of anything like two or three thousand as a likely increase in population, it means an increase in receptions of six or seven thousand. This is a horrific figure in relation to the present situation.

I want to say just two things of a general kind. First of all, the great hope of this Bill among people who are concerned with the problem of penal reform and the treatment of prisoners and offenders is that the second half of the Bill, for which my noble friend Lady Wootton is largely responsible, should work as a substitution for prison and not as a substitution for probation and fines. There is no certainty that this will happen. It is likely that a certain proportion, at any rate, of the community service orders and day training centre orders will, in fact, be used by the magistrates' courts in lieu of lesser sentences rather than imprisonment, but the one thing which is absolutely certain is that if you do away with the mandatory provision which my noble and learned friend was talking about, you are going to increase the number of people who are sent to prison when they need not be. As the whole object of the Bill, so far as I can see, is, or at any rate should be—and I believe genuinely is—to try to find ways of not sending people to prison whom you conceivably could deal with outside, it seems singularly crazy to indulge in this particular provision under Clause 10(1).

The argument leading from suspended sentences, and the difficulties which they have shown, to the mandatory sentence is non-existent, as my noble and learned friend said. It is very interesting to look at the figures in this Memorandum from the Home Office to which he referred. Between 1967 and 1970 there was the following change: in 1967 there were 13 per cent. probation, 54 per cent. fine, no suspended sentences, and 16.2 per cent. imprisonment. Taking the average of 1968 to 1970 you get the new figure of 11.4 per cent. suspended sentences, and that is divided up with a reduction in probation of 3 per cent. of the whole, in fines of 5 per cent. of the whole, and in imprisonment of 4 per cent. of the whole. So what has happened is that the suspended sentence has been used one-third to reduce imprisonment (and we are grateful for it) and two-thirds for the purpose for which it was never intended, to reduce fines and probation. The argument from this to the effect of mandatory sentences has never been provided. It was asked for again and again by my right honourable friend Mr. Edmund Dell, and he never got an answer. There is no connection between the two.

The suspended sentences have worked with difficulty, and in rather a creaking way, for a number of reasons that we need not to go into at this stage. The absence of imprisonment, but the insistence on suspended sentences, in the magistrates' courts has had an absolutely clear effect in reducing the number of people who go to prison, and the breach rate has been lower—I think it is 35 per cent.—than the breach rate of the discretionary sentences.

Your Lordships do not want a lot of figures. The fact remains that we are confronted with two choices here. The first is to say: "The results of discretionary sentences are doubtful. There is some evidence that they have done good, and some evidence that they have not. There is good evidence that the mandatory provision is working well. Neither of them has run long enough for conclusive results. Therefore, we will let both remain but will exclude those areas where we know that the mandatory sentence is working badly. " That is one course. The other course is to leave both as they are now. But we have suggested as we have had this piece of research revealed to us, that we should take advantage of it and should, at least, exclude those cases under the mandatory provision where we know it works badly, and keep it going where we know it works well.

I want to stress again that this is a very hopeful Bill. We on this side are supporting it fully. We are not opposing any single part of it ; we are simply trying to improve it. But there is a danger of ending up with three or four provisions which are not properly worked by the courts, and of taking away the one provisison which has worked well. My last word is this. There is only one argument against the mandatory provision, and that is that magistrates do not like it. Magistrates do not like it because they do not like their powers being curbed. Nor should I ; but I am in the strong position of not being a magistrate and I do not in the least mind their powers being curbed. I think it is a good thing, so long as it stops them from sending to prison people who ought not to go there. On that note, I should like to support my noble and learned friend in his Amendment.

BARONESS BACON

I should like to support this Amendment, as one who had a good deal to do with the Criminal Justice Act 1967. The noble and learned Lord the Lord Chancellor will remember the many hours that we spent in Committee on that Bill, not only during the day but nearly all night as well. I agreed with my noble and learned friend Lord Gardiner when he said that it is inevitable, if this clause goes through as it is, that the prison population will increase. But I want to make one further point. The decrease in the prison population which we hoped would come about as a result of the suspended sentence, was not the main reason for our introducing it. As the noble Viscount, Lord Colville of Culross, will realise, now that he has had some experience of the Prison Service, short sentences clutter up the prisons because of the amount of time which prison officers have to spend on receptions.

The main reason why we introduced the mandatory suspended sentence for sentences of under six months was that we felt that short prison sentences did little good to the prisoner. Short prison sentences mean, in effect, that prison officers are not able to do the job which we expect them to do to-day ; that is, to try to reform the long-term prisoner. The short-term prisoner was really cluttering up the Prison Service. Bearing in mind the fact that somebody who is sentenced to six months will probably be out in about four months, what possible good can short sentences of that kind do for the prisoner? It was that factor, rather than the prison population, which we had in mind when we introduced the suspended sentence. Nevertheless, I agreed with my noble and learned friend when he said that the prison population is bound to increase. Therefore, looking at these points, having regard to the prison population increasing, having regard to the fact that short prison sentences do no good whatsoever, I hope that the noble Viscount will look favourably on this Amendment.

BARONESS WOOTTON OF ABINGER

I, too, should like to support my noble and learned friend in this Amendment. I think the very sophisticated arguments which he has given are sufficient evidence, for those who are able to digest them quickly enough, that the mandatory suspended sentence has been unjustly blamed. But I should like to put a less sophisticated view. The magistrates were very much blamed, because it was said, when the suspended sentence—and, particularly, the mandatory sentence—was introduced, that if they were giving prison sentences at all they jumped at the idea of making them suspended prison sentences, not in place of immediate imprisonment but in place of fines and probation. This argument was reinforced by the fact that, lo and behold!, when the suspended sentence was introduced the proportion of people fined or put on probation went down.

Certain quite fallacious inferences were drawn, because they did not take into account the fact that some of the suspended sentence people would not have committed further offences and would not have gone to prison at all, while some of the people who might have been fined and put on probation and some of the people who were fined and put on probation would have committed further offences and gone to prison. You have at least to calculate which of those two classes would be more likely to go to prison. The facile inference that when fines and probation go down suspended sentences go up and that the magistrates are filling the prisons is quite unjustified. One needs far more sophisticated calculations, such as my noble and learned friend has given.

There is one other point which I should like to make, and that is about the proviso. The proviso which my noble and learned friend has suggested has at least the one great merit—I think it has many others—that it is purely factual. It states That the Court need not make an order … where the offender has at any time before the commission of the offence been sentenced to any custodial sentence or has three or more previous convictions for an indictable offence. That is a statement of fact, easily proven. The proviso as it stands in the Bill is entirely hypothetical. It states: An offender shall not be dealt with by means of a sentence of imprisonment suspended …unless the case appears to the court to be one in which a sentence of imprisonment would have been appropriate"— that is hypothetical— in the absence of any power to suspend such a sentence. We surely cannot write into Acts of Parliament what people would have done in hypothetical circumstances that do not exist. It seems to me that it is exactly like writing into an Act of Parliament, "If you could not marry X would you, or would you not marry Y?" Unanswerable questions of that sort occur very often in ordinary life, but they certainly ought not to occur in the Statute Book.

BARONESS BIRK

I should like to support the Amendment. In doing so, I do not want to go over the figures and the facts which were so admirably and ably put by my noble and learned friend Lord Gardiner, but I want to take up the point about magistrates. My noble friend Lord Donaldson of Kingsbridge made the point that because magistrates do not like the mandatory provision—I thin he put it in this way—that was one reason why he liked it. There has been a great deal of confusion and over-statement about this matter. So far as I can understand them, the reasons put forward both here and in another place have been based on the evidence of the Magistrates' Association. Speaking as an active magistrate myself, I should like to say that a great many magistrates—both those who sit in my court and other magistrates I know—would not like to see the end of the mandatory provision. In fact, any association is not always a full or comprehensive voice of the people whom it represents and of those who are working in the field.

Magistrates are in a difficult position, but taking away the mandatory provision is not going to help at all. Either we have a system of suspended sentences, the plain, simple object of which is to keep people out of prison, or we do not have it at all. Because I believe—and I speak as a magistrate who also likes to have room to manœuvre and a certain amount of discretion—that it is essential, especially when the majority of criminal cases in this country are dealt with in courts presided over by lay magistrates, that there should be direction, and as our law gets more sophisticated, as our knowledge of penal methods and our philosophy moves ahead, it seems to me that it becomes more and more important to have not only the standards, not only guidelines, but actually written into the Statute what it is that we should do.

There is also—and I think this comes out in some of the views expressed by various magistrates—what I would almost term a generation gap. If one speaks to younger magistrates—those who have been appointed when, say, on the right side of 40, and who have also had the opportunity to go through the training that we now have, quite rightly, for magistrates—one finds that they see the importance of this, that they are perfectly happy about it and do not think that this is taking away their powers. Also—and I think this is of tremendous importance—if one appreciates the views held to-day by. I think, most eminent penologists, and certainly the more progressive prison governors, that a short sentence not only fills a prison but is simply of no use whatsoever, then there does not seem any point at all in doing away with the mandatory provision unless one is arguing that those magistrates who take the view that people should be sent to prison for sentences of less than six months should be free to do so ; and, then, I would submit, they are not interpreting the law as it was laid down, and even if they use their discretion they are not interpreting what was intended in the Statute.

One other point which arises and which puts magistrates really in a very difficult position is that I am quite sure that on many occasions suspended sentences are given instead of putting the person on probation. This is not because the magistrates either want to teach somebody a lesson or happily want to send people to prison: it is because they are aware that the Probation Service is so overstretched, and are extremely worried in what they feel are marginal cases about whether they should increase the caseload. All this, I think, means not that we should do away with the mandatory provision—and here again I would support every word of my noble and learned friend Lord Gardiner—but that there has not been enough time, we have not carried out sufficient research. All sorts of ideas are thrown into the air. We need to have very much more intensive and accurate research and knowledge of what has been happening over this period, and also what will happen for some time in the future, before we change something which is, I think, as important as this.

What we should be doing—and to a very great extent this Bill is attempting to do it—is turning our attention to an increase in the range of alternatives. If there were a larger Probation Service, with pay and other conditions made more attractive and with a great deal of routine secretarial work and other things taken off the shoulders of probation officers, and if we in the courts had a much greater range of hostels—and I know this is also part of the Bill—then I think a great deal of the argument and concern about the operation of the suspended sentence would fall into its right place, because it would then be used in the way in which it is meant to be used, which is asking oneself: "If it were not for the opportunity to suspend a sentence, would this person be sent to prison?"—and that is really the only basis upon which one can decide it. Because of these reasons, because lay magistrates are dealing with these matters and because of the difficulties under which they have to work and make these decisions, I would personally think it an extremely backward-looking step if the mandatory provision were taken away.

LORD CHORLEY

I should like to say a word or two about this matter because I introduced the discussion, to which the noble and learned Lord referred, which we had rather more than a year ago about this problem of the mandatory suspended sentence. I have not put my name to this Amendment, but that does not mean that I do not have a good deal of sympathy with it. However, I must say that I have felt that most of the speeches to which we have listened this afternoon have been rather in the nature of special pleading. I do not agree with Lord Donaldson that the reason why the great majority of magistrates have been opposed to the mandatory system from the beginning is just because of pique ; that they do not like to see their powers interfered with. As a magistrate of 25 years' standing, I have not really found that that is the reaction of magistrates on the whole. What I think they objected to was that a number of the cases which were brought before them were, they felt, eminently cases in which prison was the correct sentence ; and I have never been able to accept the view that short sentences are inevitably completely wrong. Very often a six months' sentence, a short time in prison, has a very salutary effect on the young criminal. I agree that possibly these short sentences have been too frequently imposed, but I have had a longish experience and I think I can say quite honestly that in quite a number of cases where short sentences have been imposed they have had a very salutary effect on young criminals. I think that the statistics which have often been deployed on this subject really go a very long way towards proving that.

On the other hand, obviously the qualifications suggested go a very long way towards meeting the point that the mandatory suspended sentence has not been working altogether properly. I think the noble and learned Lord has undoubtedly picked out the two types of case where, if the law is changed, the change will be valuable and will go a considerable distance in not exactly pacifying the great unpaid but will go a very long way in that direction, because it has been this type of case, very often, which has upset benches, when they have had to impose a suspended sentence in a case where it was perfectly clear to them that the man would be in trouble again almost at once. I am, I think, reasonably satisfied, on the basis of the evidence produced by the noble and learned Lord on the Bench in front of me, that to a very large extent this will in fact remove the principal blemish on the mandatory suspended sentence, and therefore I feel a little in two minds about this. But I do not think I should feel very upset indeed if the noble and learned Lord opposite says that he feels he can accept this Amendment.

4.19 p.m.

VISCOUNT COLVILLE OF CULROSS

This has been a debate full of statistics of one sort or another. Perhaps I could just tell the noble and learned Lord, Lord Gardiner, about the timetable of the statistics of the Home Office Research Unit, about which he asked. I think they first became available some time in the autumn, in a very provisional form. Whether this was before the introduction of the Bill or not, I do not know, but it would have been about the same time; and a preliminary version of them was available and was, I think, circulated to members of the Standing Committee in another place, but probably not digested in time, and the real use of them came at the Report stage. That, I think, is the factual situation on this.

I do not know a great deal about statistics, but I have had a little to do with them from time to time. I find that there is a curious dichotomy of approach in this matter; because the noble and learned Lord, Lord Gardiner, is quite right in saying that he has picked out for the purposes of further exceptions from the mandatory suspension of sentences the two factors which appear to be statistically most significant in the research figures that have been produced. On the other hand, the noble Baroness, Lady Wootton, says that she does not think that the statistics are significant or accurate if they show that suspended sentences have been used in the past in cases where a fine or probation would have been otherwise the sentence.

BARONESS WOOTTON OF ABINGER

The noble Viscount will forgive me, but I hope I did not say that. I merely called attention to the fact that fines and probation had gone down and suspended sentences had gone up. I was quarrelling with the inference drawn from these two facts coinciding.

VISCOUNT COLVILLE OF CULROSS

This is the point about statistical correlation. It is always a very difficult matter. I have had some remarkable experiences in trying to discover, or having explained to me, why it was that certain statistics were said to correlate with others. I have had to cross-examine on it, very much to my dismay and to the horror of those listening. The situation is not as simple as this. Whether or not the noble Baroness is right that there is a correlation between the fall in probation orders and fines and the arrival of the mandatory suspended sentence—

BARONESS WOOTTON OF ABINGER

I should like to intervene again, for I said exactly the opposite. I said that there was no necessary correlation but a coincidence in time.

VISCOUNT COLVILLE OF CULROSS

Whether or not the noble Baroness is right that there is correlation—and she may be right: for there may be none ; and on the other hand, there may be some—the fact is, as I understand it, that until the Court of Appeal gave its judgment in O'Keefe we had never had a definitive statement, either judge-made or in statute, of the circumstances where suspended sentences ought to be imposed. Whether or not the noble Baroness likes it, that is what we have in Clause 10(3). I am told that this is the best way of drafting it to give effect to what the Court of Appeal said in the case of O'Keefe. That is a recent case and it must follow that everything that happened before that is slightly doubtful as being based upon the exercise (in the case, at any rate, of some magistrates' courts) of the wrong principles ; because if it required O'Keefe to set the matter right and the Bill to reinforce it in Clause 10(3), then the statistics, valuable though they may be, are not necessarily definitive of what the situation would be if the courts really used suspended sentences as they should and as they are now required to, not only by O'Keefe but by the clause in the Bill. For this reason—and there are other reasons—I find it difficult to take these particular statistics as the definitive starting point, as the noble and learned Lord suggested they should be, for an Amendment to the Bill at this stage.

The whole question of statistics in the Home Office—and the noble Baroness, Lady Bacon, will know this, if I can ask her to draw upon her own experience, as she asked me to draw upon mine—is a matter of incredible difficulty. One is dealing with people in situations where it is difficult to find for the purposes of comparison a parallel person who has been dealt with in another way. The control group is a difficult one to get hold of. I must say that instinctively (useful though statistics are to see whether one is going the right way) I do not think I could support the idea of legislating instantly upon the basis of one run of trial statistics on the working of suspended sentences and on the amount of recidivism. I am bound to say that I think that the approach in the Bill is the more sound one: and that is to give the courts discretion. It is a thing that we have done in most cases ; it is a thing, as was said by the noble Lord, Lord Chorley, and the noble Baroness, Lady Birk, that the courts on the whole appreciate and something to which I am certain they do justice. Equally I am sure they live up to the expectations of the legislators in giving them that freedom. I am not convinced that this is a case where we ought any longer to take that discretion from them.

The noble Lord, Lord Donaldson of Kingsbridge, said that the suspended sen- tence has worked well. I do not think it has—if you require the judgment of O'Keefe to put it right after four years and if you require the Court of Appeal to say, in effect (for the first time as far as I know, in a form where it is universally available and can be acted upon): "You shall not even consider putting somebody on a suspended sentence unless he is a person who ought to go to prison anyway. Then there is some factor which enables you to suspend it." That is the prime situation we are dealing with.

BARONESS BIRK

May I put a question on that point? If, as the noble Viscount said, it has not been working very well and O'Keefe led to it being spelled out in the Bill and he does not feel anyway that we should change things too soon, I cannot see the argument for taking away the mandatory provision. This, in fact, strengthens the need to leave the mandatory provision exactly as it is, together with the way in which the O'Keefe decision has been spelled out in the Bill.

VISCOUNT COLVILLE OF CULROSS

The noble Baroness, if she will allow me to develop my argument, will find that I come to this in the end.

LORD DONALDSON OF KINGSBRIDGE

I must correct this. The evidence that I produced for showing that there had been some results from suspended sentences comes from the Home Office table about which we have all been talking. It is not that I said they worked well ; it is that the noble Viscount's Department said that they worked well. I accept that.

VISCOUNT COLVILLE OF CULROSS

All right, I will come on to the question on which this bears. I think that suspended sentences work well where they keep out of prison those people who do not need to go there. I am second to none in seeking all possible methods to achieve that. I agree with the noble Lord, Lord Donaldson of Kingsbridge, that if suspended sentences are one method of doing this, then good for suspended sentences! Let us have them. But let us have them in the right place and in the right case. Although I know very well of the problems mentioned by the noble Baroness, Lady Bacon—of short-term sentences in prison, of the problem of reception and of the problem of what to do with the chap after the initial stage—I am bound to say that we are still left with the fact that the magistrates' courts have a power to send people to prison for six months. The noble Lord, Lord Chorley, said he thought that in some cases that was salutary. If it had been in the back of the mind of the previous Administration in 1967 that short sentences of this order were a bad thing altogether, then I suppose there were only two logical things that could be done. One would have been to extend the period for which the magistrates' courts can send people to prison ; and the other would have been to prevent them from sending people to prison at all except possibly in consecutive sentences on two different occasions. That has never been done. The situation is that the magistrates' court can send a person to prison for six months ; and that means that if he behaves himself he is in there for four months.

Against that background, if the magistrates—who know this, who are trained, who visit prisons, who nowadays go on training courses—think that the offender and the offence are such that they ought to use their powers to impose a short prison sentence, then I am afraid it is my view that the Prison Service must cope with these people in the best way it can. We cope in some cases better than we are given credit for ; it is not all black on this front, although it is a very difficult matter. Therefore if the magistrates' court (or the Crown Court ; though the mandatory suspended sentence mainly affects the magistrates' courts) decides that a person ought to go to prison, then that decision ought to be honoured. The idea of trying to keep people out of prison because the prisons are full, even though courts think that certain offenders deserve to be in prison, is in my view an unworthy objective in our legislation. I would rather face the fact that where people are really deserving of a sentence they should receive it.

There is also the question of population. I cannot go any further in that respect than Mr. Cox. This is the range. It may surprise the noble and learned Lord, Lord Gardiner, that there is no accurate forecast of this, but there is not. To the best of my knowledge there is no way of forecasting it. We can go to the outside range, between nil and 3,500, but where the figure falls in between I do not know ; and I do not think that at the moment anybody knows.

The point is this—and it impinges directly on the noble and learned Lord's Amendment. Clause 13 of the Bill discourages a court from passing a sentence of imprisonment on anyone who has not been in prison before. This is the overall provision which takes the place of the First Offenders Act and covers everyone. The statistics, even if they are not perfect, on which the noble Lord has founded his Amendment show that the most important circumstance that leads a person back to prison on a suspended sentence is the fact that he has been in prison before, which was one of the noble and learned Lord's points. In fact, I believe that if you examine the three previous convictions for indictable offences (which was the noble and learned Lord's other point) the reason why that is significant is because it usually includes a custodial sentence. Therefore it is the same point all over again.

Under this Bill we have these two themes running together. We have Clause 10(3), which requires the court to suspend only if prison would otherwise have been right but, for some reason, the court can see its way to suspend the sentence ; and we have Clause 13, which says that courts shall be as chary as possible of sending someone to prison who has not been in prison at all. Therefore it tends to take the person, if he has not been in prison before, out of the category of persons in respect of whom a suspended sentence would ever be considered, because it bears upon that at second hand. I suggest to the Committee that at this stage of the argument those two related provisions in this Bill, although they do not spell it out, in effect meet the noble and learned Lord's point.

I am sorry, but I do not agree with the noble Baroness, Lady Birk. If I heard her aright, she thought that magistrates would like more direction and assistance in the way to carry out their task. That does not accord with my philosophy, at any rate. I suggest that we should allow magistrates and the other courts freedom of discretion to deal with individual cases within a broad framework, unfettered by detailed (what the noble Baroness called "sophisticated" ; what I think are complicated) rules and regulations in the Statute.

BARONESS BIRK

I did not say they wanted more direction. I said that as we make progress, and the law becomes more and more Statute law—as I am sure the noble Viscount would agree—the situation becomes more complicated and it is essential for magistrates to have this guidance. Perhaps I may make the further point that I think we should remember that lay magistrates often have entirely different views and forms of knowledge and information about the interpretation of the Statute. For this reason, again, it seems to me important to have guidelines and directions. This is extremely important ; it is the crux of the whole Bill. Although I agree that, so far as possible, we want freedom of action—obviously we do ; and speaking as someone who is operating the law at that level, I should be sorry to see the mandatory provision go.

VISCOUNT COLVILLE OF CULROSS

With great respect to the noble Baroness, she did say that in an intervention in a speech of mine. Again with great respect, may I say that I am afraid the intervention was so long that I have now lost the train of thought which I was pursuing. I should be very grateful if I might be allowed to finish a sentence occasionally. It is very difficult to keep the thread of the argument going.

May I say this to the noble Baroness? The law is very complicated, particularly with this list of mandatory suspensions from which we subtract or to which we add. We are suggesting a great deal more simplification in dealing with individual cases, with two broad guidelines about which I have been speaking in Clauses 10(3) and 13. Those, I suggest, are good, solid, sound guidelines ; not requirements, as is the present mandatory system, but guidelines to show magistrates how they ought to deploy their common sense and experience.

The attitude of the Government on this, statistics or not, is that at this juncture we ought to restore discretion to magistrates and to other courts, and, at any rate for the moment, that there should be an end of the mandatory provision in the suspended sentence part of the 1967 Act—does the noble Lord, Lord Hale, wish to intervene?

LORD HALE

I was proposing to, but I gave way to the noble Baroness, Lady Wootton of Abinger, who I thought wanted to put a question to the noble Viscount. But if the noble Viscount is not willing to answer a question—

VISCOUNT COLVILLE OF CULROSS

I am only too happy to answer any question.

LORD HALE

In the circumstances there seems some difficulty of apprehension. May I just say this? The noble and learned Lord, Lord Gardiner, made a speech which seemed to me to put a case which I thought would appeal to both sides of the Committee. It was a well-argued case, and the noble and learned Lord gave figures, some of which I have not seen: I understand that they are from a recent Report which I have not road. The noble and learned Lord properly limited himself to the argument as from the passing of this Statute.

The noble Viscount, Lord Colville of Culross, notwithstanding what was said by the noble Baroness, Lady Bacon, did, in his speech, say one or two rather tragic things. I always listen to the noble Viscount with great respect. I think that he speaks with care and great ability. But the phrase, "If they think he has got to go to prison he must go there, and they must do their best with him" (which was based upon another argument ; the argument being that of course if the Government of 1967—was it?—had really had in mind to abolish short prison sentences altogether they might as well have gone on with it) really ignores the whole history of penal reform, not only in this country but everywhere else. The problem is that the short sentence nearly always produces no result ; or if it does produce a result, puts a man who is a redeemable man in a position in which he is in contact with old lags and so on for a time—

LORD CHORLEY

May I put this point to the noble Lord? Surely the figures show perfectly well that the great majority of defendants sentenced to a short term of imprisonment never appear before a criminal court again.

LORD HALE

With great respect, I do not know that ; and, with great respect, I doubt it. I have the greatest respect for the noble Lord, Lord Chorley, with whom I worked many years ago in this particular field. Four years' absence makes me hesitate to speak, and reluctant to make an absolute assertion about what has happened in that period until I overcome the defects in my knowledge caused by that four-year absence. But I have worked in this field, I have visited prisons in four continents and studied the conditions there. For a time I was Chairman of the Committee on Penal Reform of United Europe and I have studied the systems in France, Italy, and so on. Therefore, with the reservation I have made, I think that on this subject I can still express an opinion which may be worthwhile. Every prison governor to whom I have spoken, both here and abroad, has said that the short sentence man, or the man who went to prison without being sentenced at all, simply because he was refused bail, or could not obtain bail, was a man who could not be given any effective attention: he could not be trained ; he could not partake in some of the amenities of the prison.

We were evolving in those days a system in which we should take the prisoners away and send them through to a varied series of reform prisons adapted to the nature of their crime. But the man who goes in for a short period usually stops there for a short period. The man who goes in for a short period is not one for whom the prison authorities can do their best. They can do little more than lock him up and send him out as a man who ranks technically as an old lag, or a young lag, with a conviction which carries its own inevitable burden, and without making any effort at reform because no effective reform can be made. It was for those reasons that this Act was passed. As my noble and learned friend Lord Gardiner has said, it has been in force at most for only four years. Statistics are available promptly on these matters. The noble and learned Lord has devised an Amendment which will meet the objections made to the previous Act and deal with the exceptional cases that the evidence discloses may not be amenable to this particular form of treatment, but which still does not destroy and repudiate a beneficent reform that has not yet had time to show its worth, or to be adapted within the prison system. I realise that I made a slip of the tongue when I said "within the prison system". I should have said of course "within the penal system", because that temporarily abolishes imprisonment.

This is a matter of vital importance. I would say to the noble Viscount, for whom I managed to acquire a good deal of respect when I served with him on another Committee, that nobody has spoken against Lord Gardiner's Amendment ; everyone has given it something of a blessing, and most noble Lords have warmly endorsed it. When an Amendment is received with so much approbation, and when the noble Viscount has represented with his customary ability and clarity the arguments of the Home Office, which on these matters are not always correct, could he not consider what appears to be the feeling in all parts of the Committee: that we should not abandon an important reform designed for the redemption of the individual without a little more time being taken to study its effects?

4.43 p.m.

BARONESS WOOTTON OF ABINGER

If the noble Viscount is adamant about abolishing the mandatory requirement, may I beg him once more to look again at the proviso which writes into the Statute Book the O'Keefe judgment, and to compare with this the proviso that my noble and learned friend Lord Gardiner has proposed as an alternative? It is the duty of magistrates, presumably, to keep the law, and the proviso in the Bill is not guidance—which I think is the word used by the noble Viscount ; it is mandatory. The Bill says that an offender shall not be dealt with by means of a suspended sentence, unless the case appears to the court to be one in which a sentence of imprisonment would have been appropriate in the absence of any power to suspend such a sentence". This means that a magistrate breaks the law unless he can put his hand on his heart and say, "If I had been unable to do this thing, then in those hypothetical circumstances I would have done a certain other thing." It seems to me that that is an offence which in all the circumstances it would be quite impossible to prove. You cannot say what you would have done in other circumstances had you been precluded from doing what you did. The great merit of my noble and learned friend's proviso is that it is completely factual and takes care of those cases in which a suspended sentence has been proved to be least successful. So I beg the noble Viscount again to look at this hypothetical proviso and ask himself whether we ought to write such a provision into the Statute Book.

VISCOUNT COLVILLE OF CULROSS

I think that there are only two additional questions that I have been asked, and perhaps I can deal first with the noble Baroness's point. I do not think the situation is quite so bad as she makes out, because although I know she has disliked the wording of this subsection since she first read the Bill (I remember her mentioning it on Second Reading), I think it is merely telling magistrates that, if they are going to impose a suspended sentence, they do not do it as an alternative to probation or in a case where otherwise a fine would do. That is the point of it. If this point can be better expressed, then I shall be happy to see if it can be done. But the point of it is—and, after all, whether we have the wording right or not, I think the noble and learned Lord, Lord Gardiner, applauded our attempt to put O'Keefe into the Bill—to underline the importance of the case where they say, under Clause 13 particularly: "Shall we have probation? Shall we have a fine? Shall we have a community service order, if it is available? Shall we have one of the known custodial sentences? Or is this a case where we have nothing but prison?" Then they can say to themselves: "Though prison is the only thing, can we suspend it?" I do not think this provision is mandatory in anything like the same terms as the mandatory part of the suspended provision in the 1967 Act. It does not inhibit the magistrates from putting the man on a suspended sentence, nor does it require them to do so: it simply sets out the circumstances in which they are to consider the matter.

As to the noble Lord, Lord Hale, I am extremely flattered by the kind things he said, but the point he made at the end, that we were abandoning a valuable reform, is simply not true. The valuable reform is the suspended sentence. We are not abandoning that. All we are doing is making it slightly easier for the magistrates to use their discretion, when they do and when they do not suspend the sentence. There is no question of abandoning the suspended sentence. I said earlier, in response to the noble Lord, Lord Donaldson of Kingsbridge, that I consider the suspended sentence a most valuable non-custodial form of treatment (if that is not too much of a paradox) and I support it. We are not abandoning it. All we are dealing with is the part of the 1967 Act which requires the sentence to be suspended in certain cases. That is what I think is wrong, and that is why I am urging the Committee to support the clause as it stands.

LORD DONALDSON OF KINGSBRIDGE

I should like to say one word more about the O'Keefe clause, Clause 3. I agree with my noble friend Lady Wootton, but I want to go further than she does. The most important reason for sending a person to prison is that he is a danger to society ; and the most important reason behind the attempts of this Bill to keep people out of prison is that it is not generally necessary to send people to prison unless they are a danger to society. I think it is obvious that if somebody deserves to go to prison but one can afford to keep him out for a year or two, he cannot be a danger to society. The number of cases where guilt requires punishment by prison is, I think, very small. It has obviously changed very much in the last twenty years. I think the kind of advice that magistrates would have received from a Bill of this kind twenty years ago would have sent many more people to prison than will go now. So one is in an area of utter vagueness ; and vagueness is changing very fast. Therefore I hope the noble Lord will think about this further.

LORD GARDINER

I am naturally very disappointed with the reply of the noble Viscount. May I say in the first place that of course I was not blaming the justices in any way. One quite understood why they thought that a suspended sentence was like a gift from heaven. First of all, it satisfied the public to hear that a prison sentence had been imposed ; secondly, it did not mean that the man or woman in front of the magistrates had to go to prison, either immediately or (if they went on behaving thmselves) at all ; thirdly, as opposed to a probation order, since our probation officers are terribly overworked, it was a case of, "Do let us save them all the cases that we can. Of course we can impose a fine but then, as we know, some fines are irrecoverable." So, as a sort of soft option, one quite understood the popularity of the suspended sentence.

What the noble Viscount said—and I am still puzzling over this ; he will correct me if I have it wrong—as I understood it, was this: "There is no reason to think there will be change. After all, O'Keefe is quite a recent case and there are really no materials on which we ought to make the drastic change which you propose in your Amendment." I find this argument quite incredible. Who is proposing the change?—not I. It is the Government who are proposing it in the Bill. At the moment we have mandatory suspended sentences. It is I who am saying that we should keep them, and if the Government want to keep them without my proviso then that can be done. I am saying, "Keep them". It is the Government who are proposing a change which their own officials at the Home Office estimate may lead to an additional prison population of 3,500. Why the noble Viscount says to me that there are really no materials on which to change—O'Keefe, to the best of my recollection, was 1968—

VISCOUNT COLVILLE OF CULROSS

I am sorry: I did not say there were no materials upon which to change. What I said was that these statistics did not necessarily make a definitive ground for the removal of the mandatory suspension in any particular case. I am merely saying that to legislate on the basis of a statistical correlation of this sort is not something of which I necessarily approve—and certainly not in this case.

LORD GARDINER

I should have thought it was better than legislating on nothing at all. I am submitting that it has not been shown that mandatory suspended sentences have been a failure. The troubles have mostly arisen with the discretionary powers. Why that should be an argument for increasing the justices' discretion, I do not know. I am in favour of keeping mandatory suspended sentences, which have been in

operation for only a short time and about the results of which, until just the other day, we had no hard statistical information. It is the Government who are saying, without any materials at all, "Let us now reverse what Parliament decided in 1967 and let us do away with mandatory suspended sentences." I should have thought that if we were going to keep them it would have been wise to have made an exception for those two cases which, on the facts as stated in the Home Office report—incidentally, a very recent report—tend to show that this method has not been a success

I agree with the noble Viscount that, as the report itself points out, they are both very much the same kind of case—a previous custodial sentence or three previous convictions. The main point of the Amendment is to keep the law as it is and not make a change. It is not the Amendment which is going to lead to 3,500 more people in prison. All I am pleading for is that the Government should not make this very serious change, which may have serious consequences, when they have not had the opportunity of ascertaining the facts.

I think we should come to some conclusion about this issue. I am not going to ask anybody behind me to vote for this Amendment because I have moved it. In the other place this matter was dealt with entirely on a non-Party basis, and I hope that so far as the whole of this Bill is concerned we shall deal with it on a non-Party basis. But because this information, certainly in the second memorandum, only reached the other place in time for the Report stage of the Bill, because they were required to deal with that at two o'clock in the morning, and as we have now had more opportunity to consider the subject than the other place had, I think it is one on which we should express a view.

4.55 p.m.

On Question, Whether the said Amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 50 ; Not-Contents, 77.

CONTENTS
Archibald, L.	Brockway, L.	Clwyd, L.
Bacon, Bs.	Buckinghamshire, E.	Collison, L.
Beswick, L.	Burntwood, L.	Crook, L.
Birk, Bs.	Burton of Coventry, Bs.	Diamond, L.
Blyton, L.	Champion, L.	Donaldson of Kingsbridge, L.
Douglas of Barloch, L.	McLeavy, L.	Slater, L.
Faringdon, L.	Maelor, L.	Stocks, Bs.
Fiske, L.	Moyle, L.	Stow Hill, L.
Gaitskell, Bs.	Phillips, Bs. [Teller.]	Summerskill, Bs.
Gardiner, L.	Popplewell, L.	Taylor of Mansfield, L.
Garnsworthy, L. [Teller]	Royle, L.	Wells-Pestell, L.
Hale, L.	Ruthven of Freeland, Ly.	White, Bs.
Hall, V.	Sainsbury, L.	Williamson, L.
Henderson, L.	Serota, Bs.	Wise, L.
Hoy, L.	Shackleton, L.	Wootton of Abinger, Bs.
Jacques, L.	Shepherd, L.	Wynne-Jones, L.
Janner, L.	Shinwell, L.
NOT-CONTENTS
Aberdare, L.	Digby, L.	Mancroft, L.
Ailsa, L.	Dilhorne, V.	Merrivale, L.
Airedale, L.	Drumalbyn, L.	Meston, L.
Amory, V.	Ebbisham, L.	Milverton, L.
Auckland, L.	Eccles, V.	Monck, V.
Avebury, L.	Elles, Bs.	Morris of Borth-y-Gest, L.
Balfour, E.	Emmet of Amberley, Bs.	Mowbray and Stourton. L. [Teller]
Balfour of Inchrye, L.	Ferrers, E.
Belstead, L.	Fortescue, E.	Northcurch, Bs.
Berkeley, Bs.	Gainford, L.	Oakshott, L.
Bethell, L.	Goschen, V.	Rankeillour, L.
Bledisloe, V.	Gowrie, E.	St. Helens, L.
Brooke of Cumnor, L.	Grenfell, L.	Sandford, L.
Brooke of Ystradfellte, Bs.	Grimston of Westbury, L.	Savile, L.
Camoys, L.	Hacking, L.	Sempill, Ly.
Carrington, L.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	Somers, L.
Chorley, L.		Stamp, L.
Colgrain, L.	Howard of Glossop, L.	Strathclyde, L.
Colville of Culross, V.	Hunt, L.	Swaythling, L.
Courtown, E.	Hylton-Foster, Bs.	Tanlaw, L.
Craigavon, V.	Ilford, L.	Tweedsmuir of Belhelvie, Bs.
Craigmyle, L.	Kilmany, L.	Vivian, L.
Crathorne, L.	Kinnoull, E.	Wakefield of Kendal, L.
Cromartie, E.	Lothian, M.	Ward of Witley, V.
Daventry, V.	Loudoun, C.	Widgery, L.
de Clifford, L.	Macleod of Borve, Bs.	Young, Bs.
Denham, L. [Teller.]

On Question, Amendment agreed to.

5.4 p.m.

LORD JACQUES moved Amendment No. 6: Page 8, line 20, after ("unless") insert ("the court has considered a social inquiry report from a probation officer and").

The noble Lord said: The purpose of this Amendment is to make it mandatory upon a court to have a social inquiry report from a probation officer before it passes a sentence of imprisonment which is suspended. Therefore there are involved two issues: first, the importance of such a report ; secondly, whether it is practicable to make it mandatory that the court should have such a report. I believe that there is general agreement on all sides of the Committee that there should be adequate opportunities for rehabilitation, especially for inadequate people who so often come from broken homes and are responsible for a good deal of petty crime. This Bill provides new methods of rehabilitation; it increases the range of sentences that are available. Surely in those circumstances it is all the more important that the court should be fully informed before it comes to its conclusion as to sentence. The probation officer has far greater opportunities than the court in getting at the background and finding out the possibilities of rehabilitation. He can spend far more time on the case and visit the offender at his home. The vast majority of our courts regard it as absolutely essential that they should have such a report before they make up their minds on a suspended prison sentence. But a few courts act extremely impatiently with the inadequate petty offender. The suspended sentence procedure suits that kind of court very well because it means they spend little time upon the case; they do not increase the work which is on the shoulders of the Probation Service; they do not increase the fines arrears, and they waste no time. In effect, they say to the offenders: "Do not let us see you back again. If you return in the next two or three years you will go back to prison."

We believe that there should be a full and proper inquiry before the suspended sentence procedure is used. On Second Reading the noble Viscount said that we must see that courts use the suspended sentence only when otherwise they would think imprisonment the only answer. I believe that it is only possible for the court to be in that position if it has been fully informed on the matters that are available to it. There is next the question of whether it is practicable to make the provision of a report mandatory upon the court. For this part of my argument I am willing to rest on the words of the noble Viscount during the Second Reading debate on June 26. At column 658 of Hansard he said: I cannot see why in practice there should not be such a report before a court in almost any case of gravity. I do not think we should want it in motor car cases, but certainly in anything that is liable to endanger somebody's liberty or livelihood. I underline the words, "in practice" and I submit that unless the case is one of gravity, there should not be imprisonment. If there should not be imprisonment then in the opinion of the noble Viscount there should not be a suspended sentence of imprisonment. Therefore I hope that the brief of the noble Viscount agrees with his opinion and that this Amendment will be accepted without further ado.

LORD WELLS-PESTELL

I should not have associated myself with this Amendment had I not felt extremely strongly about it. I hope that the noble Viscount will find it possible to accept the Amendment. I do not want to cover the ground that has already been covered about the contributions that prisons do or do not make to-day other than to say that I have sat for twenty-six years as a lay magistrate and, in recent months, as a lay magistrate in Crown Courts. For some years I had practical experience as a probation officer. This has led me to visit most of the prisons in this country, most of the borstal institutions and the various other institutions in which we treat delinquents. While I recognise that prison is essential in certain cases, we cannot close our eyes to the fact that we are housing to-day in our prisons a large number of people—I venture to say many thousands—who ought not to be in prison. Their real problem is one of social inadequacy, fecklessness and general inability to meet the demands and responsibilities that we all have to meet in living in a community. If this is so, and if your Lordships will accept this, as I feel sure you will, it makes it incumbent upon the court to be absolutely certain that when they send a person to prison there is every justification for doing so.

I welcome the Bill as a whole because it is a sincere and sustained effort to keep people out of prison. It is an excellent Bill in that respect. But I feel that, because of the variety of behaviour of the various courts in this country (and my noble friend Lady Birk has said that even lay magistrates will think differently upon the same case; that is the reason why there are never fewer than two of us or more than three) in the last analysis a court must explore every avenue from which it can gather information—not just the police and not just the prosecution. It is incumbent upon the Houses of Parliament, of which we are a part, to write into a Bill of this kind a provision which makes it mandatory that the court should have a social worker's report, bearing in mind that he or she is a person who has been specially selected and trained to undertake this kind of investigation. In this way, as noble and learned judges will know for themselves, there often come to light circumstances about which the court knew nothing, circumstances which contributed to the commission of the offence. If such circumstances are known it might clearly be of far more help to the community to deal with an individual by means other than sending him or her to prison. Therefore, I plead with the noble Viscount to accept this Amendment, because it is of supreme importance.

5.12 p.m.

LORD JANNER

I support the Amendment. Having practised in the courts for a number of years I feel, and think that other practitioners in the courts feel, that the opinion of the probation officer is extremely valuable in enabling a court to arrive at a satisfactory decision. I strongly support the arguments that have already been put forward. In my view, it is not carrying the matter too far to ask every court (and later on we shall be dealing with Crown Courts, too) to consider the actual circumstances of the individual concerned in the light of an investigation by an experienced person—someone who is almost invariably kindly and sympathetic and would be prepared to place the facts before the court in the most sympathetic way provided that this did not involve anything in the nature of an injustice.

I cannot understand how there can be any objection to a proposal of this kind. Magistrates might say, "Well, we can do just as well as a probation officer"; but I think that, speaking in the main, magistrates already rely to a considerable extent upon the opinion of probation officers. Emphasis has been placed upon the reasons why, if it is at all possible, people should be kept out of prison. This provision would be invaluable for the courts. I cannot see any reason why it should be turned aside, and I hope that the Government will accept it.

BARONESS ELLIOT OF HARWOOD

I, too, rise to support this Amendment. Very often, certainly in the case of juveniles, and I believe of adults as well, reports are made on families who, alas! produce delinquent children or offenders of an older age. It is most important that the knowledge and experience of these people who have been watching over such families, in some cases for quite a number of years, should be used, and that they should be consulted and play a part in the vital decision of the magistrate or the sheriff, as the case may be, in any given case. In many areas we have now built up a very fine team of social workers and probation officers working closely together. They have great skill and experience. In many cases I have known them to be asked for their reports before a sentence of any kind has been awarded in court. The fact that they are not consulted is, I believe, a mistake. I have been involved in this sphere quite considerably: I am Chairman of the Probation Committee and Chairman of the Social Work Committee, and have for years worked for the Advisory Council for the Treatment of Offenders ; and all my experience leads me to believe that if you want to help people it is best done through the study and care which is given by probation officers and by other social workers. It would be most valuable if this could be part of the assistance given to magistrates or whoever presides at court. I hope very much that this Amendment will be incorporated in the Bill.

5.17 p.m.

VISCOUNT COLVILLE OF CULROSS

That is a very strong appeal from noble Lords opposite and from my noble friend. I am bound to say that this is a matter which causes me considerable concern. May I, to start with, tell the Committee that there is already power under the 1967 Act to make rules to this effect, so technically speaking (and I think this Amendment goes closely with Amendment No. 9 of the noble Lord, Lord Wells-Pestell, on Clause 13) there is no need for this Amendment. But I am glad that noble Lords have put it down so that we may consider it. The reason why the Government have not made rules under Section 57 (I think it is) of the 1967 Act, already bringing this provision into effect, is the, alas! gloomy situation about workload. That is the primary reason. There are cases where it is arguable that the court know the man concerned perfectly well ; he has been before them on several occasions and they know everything there is to know about him. They have had a probation report on him before, as well as other reports, and therefore do not need further reports. But I entirely appreciate that this is not the usual case. The usual case, particularly when we are talking, as we are in Clause 10(3) and Clause 13, about imprisonment, whether suspended or not, is the case where, as the noble Lord, Lord Jacques, accurately quoted me, I think it is highly desirable there should be a social inquiry report.

Let me tell the Committee a little about our research—not, I may say at once, because this helps me in any way, but because I think it is necessary that I should fulfil the undertaking given in another place to see whether we could discover what was the factual situation about the number of social inquiry reports that were in fact given to the courts before they passed sentence. Although I do not know whether this has been done on a universal basis, I think the statistics are fairly reliable ; and in some cases they are not very encouraging. I think that the situation in the higher courts is all right, because we have for some time been recommending these courts to obtain social inquiry reports as a normal practice in a wide range of cases, including very grave ones. In 94 per cent. of the applicable cases outside Inner London and in 83 per cent. of the cases in Inner London there has been a social inquiry report, and I suppose there have been others in the excluded figures in cases where there was not one, where probably the court did not need it, for the reasons of the kind that I have given.

The situation in regard to magistrates' courts is not so good. In four-fifths of the cases of people who were sent to detention centres there was a social inquiry report before the court sentenced them, and in London the number was even higher than elsewhere. Of the women given a prison sentence, whether or not it was a first one, 70 per cent. were the subject of a social inquiry report. But when one comes to men given a first prison sentence by the magistrates' court, I am afraid that there was a social inquiry report on rather less than two-fifths of them before the court passed sentence. This possibly gives point to what the noble Lord, Lord Jacques, said about some courts being a little impatient with people of this sort. I think that in 44 per cent. of the cases there was a report where a man went straight to prison, whereas when a sentence was suspended the figure was lower. I hope that this state of affairs will change partly as a result of this Bill, because the courts will take the actual sentence and the suspended sentence and these will be considered just as carefully.

The trouble is that in 1965 43,456 social inquiry reports were prepared on adult men and women appearing in magistrates' courts ; by 1968 this number had increased by nearly 50 per cent. to 66,405, and by 1970 there had been another, virtually, 50 per cent. increase, to 91,336—just in the magistrates' courts. Of course this was partly as a result of the vastly increased numbers of cases coming before the courts. But the truth of the matter is that if one had a statutory requirement of the sort suggested in this Amendment and in Amendment No. 9—the one to Clause 13—we think we should need the equivalent of 50 probation officers over and above what we have now. This is a situation to which we are working. As I think I told the noble and learned Lord, Lord Gardiner, on Second Reading we are training and providing places at a tremendous rate, and the latest information that I have is that this programme is up to what we had hoped. As I told your Lordships then, we are working to a target of 4,700 probation officers by 1975, and that was partly geared to take account of the extra burdens placed upon them in this Bill.

Therefore I am afraid we have a cruel choice. I entirely agree that it would be ideal that we should have a social inquiry report in every case. The noble Lord, Lord Jacques, mentioned a suspended sentence, and the Amendment tabled by the noble Lord, Lord Wells-Pestell, any sort of sentence of imprisonment, whether suspended or not. But here we also have in this Bill—and it has been widely accepted—some experiments in non-custodial treatment, and some of these were with exactly the sort of people who have been mentioned, such as people who were inadequate. There are the day centres for those who are not very well able to cope with life ; we have the community service orders which I think, if we can make them work, will be a success and will bring in the voluntary side as well. We have other provisions which all put an additional workload on the Probation Service. Indeed the noble Lord, Lord Wells-Pestell, in one of his Amendments said that we should not bring these things into operation until the Probation Service can assure my right honourable friend the Home Secretary that they can deal with them. If we accept this Amendment inevitably we shall have to divert from the other non-custodial activities set out in this Bill some of our precious force of probation staff. That is not a position that I like defending at all. It is a most invidious choice to have to make. I think I must put it before the Committee bluntly, as I have done, and if noble Lords wish to put this Amendment into the Bill then I believe they will be sacrificing a certain number of provisions which everybody has welcomed.

I also think that as we have powers to do it, and as I hope I have given the impression that we are keen to try to get this situation right, we should draw the attention of the courts to this very sad situation and go on with our administrative pressure and our exhortations to try to avoid this type of case. If the Committee thinks that that, rather than the statutory imposition of this duty, is the best compromise that we can get, then that is the one that I would be happy to try to implement. I should be happy to go on encouraging the training scheme, the extra training places and the extra recruitment that is going on. I know that the noble Lord will say something about pay. We have the Butterworth Report coming up, and I hope that that will be satisfactory.

I think I must really leave the matter with the Committee. I do not want to accept this Amendment because I believe that it will throw out of gear a great deal of the good that we want to achieve in this Bill. I would go so far as to resist it, not only on technical grounds but on the grounds that we ought not to jeopardise some of the other practical and experimental provisions. That is the situation. As I have said, I am not happy with it ; the Government are not happy with it. We are not pleased with the figures that have come out of this particular piece of research, but there they are, and I hope that we may be forgiven by noble Lords, however enthusiastic they are (as I am myself) and that they will allow us to go on until we can make the necessary rules under the powers that we already have.

LORD CHORLEY

With the noble Lord's permission, I should like to intervene. Would it be possible somehow to moderate this? I realise the importance of what the noble Viscount has been saying about taking away from the efficiency of other parts of the Probation Service in other parts of this Bill if the whole of this scheme is put into operation, because of the vast increase in the number of social inquiry reports which would be required. From my long experience of the growth of these reports since the end of the war up to the present time I have no doubt at all that they are very valuable. Nevertheless, as the noble Viscount has said, there are quite a few of these cases where such reports are really quite unnecessary and one feels that valuable time has in fact been wasted. Would it be possible to moderate this provision in some way and let the magistrates call for reports, or something like that?

VISCOUNT DILHORNE

Supposing there is a case where the magistrates find the situation difficult and where they would like to have further information, is it not open to them to remand the case with a view to obtaining a social inquiry report? When I sat, before Beeching, as a deputy chairman of quarter sessions I do not recollect in recent years not having a social inquiry report available before sessions. In many cases I found it of extreme value ; in other cases the social inquiry report did not assist in the solution of the problem at all. But it was nice to have it and to know that the position had been looked into. Quite clearly, the workload is such that, without having to pay too great a price, one cannot make it mandatory to have a social inquiry report at the present time. I should have thought the case would be met by what the noble Viscount has said about the way in which the situation is developing and also by the magistrates' ability to have the cases remanded, maybe on bail or maybe not, with a view to obtaining a social inquiry report in a particular case. I should have thought that would have met the situation.

5.30 p.m.

LORD WELLS-PESTELL

I agree with what the noble and learned Lord just said and it is true of the majority of courts in this country. Nevertheless I think the noble Lord, Lord Hamilton of Dalzell, will agree that probation officers attach considerable importance to the court having social inquiry reports. We are dealing here with a specific group of defendants—those who are likely to be considered for suspended sentences—and are not ranging over the whole sphere of prison sentences. In other words, we are considering a small group of people. Bearing in mind that for every six we send to prison for a six months' sentence we are involved with three years' imprisonment, we would save enough money by taking this step to employ more probation officers. It is as simple as that.

VISCOUNT COLVILLE OF CULROSS

Yes, if we had them trained at the right time. It is correct to say that there is power to remand for a report. In the cases with which we are dealing, of a possible suspended sentence, I suppose that this might well happen on bail. If we were dealing with the Clause 13 type of case, where the court would be thinking of imprisonment without suspension, it might have to be on remand.

LORD CHORLEY

Would it be possible to modify the clause in such a way that a report must be requested in all cases except where it was clear to the bench that one would not be of much use?

VISCOUNT COLVILLE OF CULROSS

I think that such a provision would be undraftable. In any event, magistrates who choose not to pay any attention to a report will not do so. The solution which I suggest to the Committee is the course we have been following—namely, to encourage the courts in certain specified cases to make it the normal practice to have social inquiry reports, and the exception to the normal practice is exactly what the noble Lord, Lord Chorley said—those cases where the court knows the person well—and in saying that the noble Lord really endorsed what I had previously put before the Committee. I do not believe that one could draft either a Statute or rules to cover this in the way the noble Lord suggested. However, the pressure should be kept up—particularly as a result of the figures I disclosed—on the magistrates' courts and especially on those which do not have social inquiry reports as often as they should. At the moment we feel that this should be done by administrative means.

I cannot go further than that. To try sensibly to legislate or make rules would not work. It would in the present circumstances probably mean cases getting badly held up and some people being kept on remand in custody for quite a long time. I believe that administrative means is the right answer, encouraging the courts to use social inquiry reports. Indeed, I will see that some of the speeches made by noble Lords in these deliberations are included verbatim in some of the circulars which we send out because the points of concern to us all have been put succinctly, clearly and forcibly. In view of the practical difficulties I hope that the noble Lord, Lord Jacques, will respond to what I have said and, as an earnest of his support for our endeavours in this matter, agree to withdraw the Amendment.

LORD HAMILTON OF DALZELL

It is true that magistrates can remand cases for social inquiry reports. Indeed, they frequently have to do so because although we are getting an increasing number of what are known as pre-trial reports, the time available as a rule makes it impossible to have reports in all cases. This is probably not so in the higher courts because the amount of time that has elapsed will have ensured reports being available. Generally speaking, the court will invariably want a report before making a suspended sentence. There may be occasions when the court knows the person so well that a report is not required and in such cases there would be no point in obliging the court to put the case back for a social inquiry report. On the rare occasions when that situation occurs, the court should not be obliged to take that step because the Probation Service is very fully occupied and it would be undesirable to ask it to do the unnecessary.

LORD JACQUES

It is common practice in the vast majority of magistrates' courts to have a remand for a social inquiry report before passing a suspended term of imprisonment. Only a few courts, the impatient ones, do not do so. The Amendment is drafted in such a way that it would give a certain amount of freedom to the courts. For example, if the offender had been before the court a year earlier and there had been a social inquiry report available at that time and the court was satisfied that there had been no change in his circumstances since then, there would be no need to oblige the court to wait for another report. I do not think it would be possible to redraft the Amendment to make it operate in a simpler way. Am I right in assuming that the Minister of State is in sympathy with the Amendment but says that what it seeks to do can already be done without the Amendment? In other words, is the noble Viscount saying that the Government are anxious to do this but that it is all a question of the availability of staff?

VISCOUNT COLVILLE OF CULROSS

I am not saying that we would be anxious to require this to be done in respect of every case that will ever come before a court. As the noble Lord, Lord Hamilton of Dalzell, said, if one had sufficient probation officers, one could afford to waste some time ; but in principle I am in sympathy with the proposal if the court does not know the background.

LORD JACQUES

I appreciate that it would be difficult, either in a Statute or rules, to draft a provision giving the exceptions because of the difficulty of defining them. This is such an important matter that ultimately we shall have to say, "Before a suspended term of imprisonment is passed, the court must have all the facts." The amount of time that would be wasted on those cases where reports would not be necessary would, in my view, be negligible and would be a price well worth paying.

As the noble Viscount is sympathetic and has made it clear that what I seek to achieve can be done without the Amendment—I appreciate that to achieve my objective completely would require an increase in the number of trained probation officers—I can only hope that if we have not fully persuaded the Government of the need to take this step now we may yet persuade them on another occasion. On that understanding, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Suspended sentence supervision orders]

5.39 p.m.

LORD DONALDSON OF KINGSBRIDGE moved Amendment No. 7: Page 9, line 4, at end insert ("or his nominee")

The noble Lord said: This is a probing Amendment which follows neatly on the last remarks of the noble Viscount who was pleading insufficient numbers of probation officers. The second half of this important Bill depends for its success on there being enough probation officers, a subject to which we shall come on Amendment No. 35. It depends also on something less direct but no less important. In my view, and in the opinion of many others, the Probation Service cannot do its work properly without involving a large number of voluntary workers. This has been accepted, for example, in the case of voluntary after-care, which was done at one time purely by voluntary bodies and was then taken over by the Probation Service and run with the help of the voluntary organisations. This work is done extremely well. I am speaking of the great unpaid, the enormous army of people who make possible many things that would be impossible without the great deal of time and effort that they put in. I refer, among others, to magistrates, members of committees and accredited volunteers. This kind of voluntary work is rather different from the sort of voluntary work we shall be talking about when we come to community service orders.

I could have attached this Amendment to Clauses 14 or 19 as it applies to all three clauses. The point that I wish to get clearly understood is that though there is no mention in the whole of the Bill of the assistance of the voluntary movement, yet I do not believe it can succeed without that assistance. The noble and learned Viscount made some kind remarks about the voluntary movement in his Second Reading speech and that is the biggest dividend we have so far managed to get. I am not particularly interested in work just because it is voluntary, but I am quite satisfied that much of the work which needs to be done cannot be done without volunteers and cannot be done as well by people who are statutorily employed. I suppose that the most important thing that a volunteer can give to an offender, a man who has made a mess of his life, is leisure, a little time. That is the one thing that no probation officer can ever give. Quite apart from the fact that the volunteer can actually take some of the workload off the probation officer, he can also supply the client with something that the probation officer simply has not got.

Subsection (4) of Clause 11 says: An offender in respect of whom a supervision order is in force shall keep in touch with the supervising officer in accordance with such instructions as he may from time to time be given by that officer and shall notify him of any change of address. Your Lordships will notice that this is a much more minimal duty laid on the probation officer than is the normal one, which is to befriend and assist. Of course the relationship does imply befriending and assisting, but the fact remains that his main work will be quite routine and it seems to me that, if he is going to do any good for this man who is given a supervision order on a suspended sentence, he will have to do more than is laid down in subsection (4) and he will also probably need volunteers to help him do it.

I do not think I need say more. The point I am trying to make is obvious. The noble and learned Viscount may not feel that I have this Amendment in the right place. He may not even feel that the Bill needs to have any reference at all, but I am absolutely certain that both the community service orders and the day training centres will be only half what they could be if this service is not very heavily used.

The position over the second half of the Bill is that all of us are trying—and the noble and learned Viscount says that he is as keen as I am, and I believe him—to keep people out of prison who should not go to prison. But there is more to it than that. It is not enough to keep people out of prison. If you send people to prison for a short sentence it is certain that you will not do them good and it is very likely that you will do them some harm. If you treat them under Clause 14 or 19 there is the possibility that you may do them some good. The change for the better in offenders is never the result of anything except personal relationships. You want as many personal relationships as you can get and therefore you want the largest variety of volunteers as possible. I do not think I need add anything further except to ask the Minister either to accept this Amendment or to suggest in what way we can express the importance of this assistance to the second half of the Bill.

LORD HAMILTON OF DALZELL

I must say that I am not very happy about this Amendment. I am, of course, entirely in favour of increasing the use of voluntary associates and other volunteers in collaboration with the Probation Service and it may well be that they could be used in connection with one of these suspended sentence supervision orders. But it seems to me that the person appointed by the court to supervise somebody under one of these orders must be trained and qualified with official standing in his relations with the court. I do not see that there is any essential difference between this type of order and a probation order, and I do not think anyone would suggest that people who are not in the official position of a probation officer should be put in the position of a probation officer in relation to a probation order. There is the particular point that under Clause 12 a person may be brought back before the court for a breach of the conditions of a suspended sentence supervision order and it seems to me even more essential that the person who comes back to the court to make a report in that connection should be a person with official standing and that he should be a probation officer and no one else.

BARONESS BIRK

I should like to support the Amendment. I quite understand some of the reservations, but I would point out that this is not the same as when a person is put on probation. A decision has already been made about a suspended sentence and this is giving a small piece of additional help and support. That is done in many other fields: we have prison visitors and marriage guidance counsellors. I cannot see why—and I think my noble friend mentioned this—there should not be a certain amount of training for this work: obviously it would not be the highly skilled probation officer, but it would be somebody acting in a supportive role. I would support my noble friend because this is a suggestion worth examining, particularly in view of what we all know and what the noble and learned Viscount said in reply to the last Amendment, this really terrible shortage of probation officers.

LORD WELLS-PESTELL

My noble friend Lord Hamilton of Dalzell has raised a very real point—albeit it is not a probation order it is nevertheless an order of the court. I do not know whether the court would be empowered to name in an order of this kind somebody who is not an officer of the court. I just do not know the answer to that. But what does seem to me to present difficulties—although the noble and learned Viscount may say that these difficulties can be easily overcome—is the question of breach. I can well understand that to work this Bill effectively there has to be a vast army of ancillaries and auxiliaries and voluntary workers. That is essential, otherwise the Bill, if it becomes an Act, cannot work effectively. It may well be that a probation officer will need to use a number of people in the course of a period to help him in connection with a particular individual, but I should have thought that the responsibility lay with the probation officer. I am wondering if the noble Viscount can say whether these are real difficulties or just imaginary ones on my part and on the part of my noble friend Lord Hamilton of Dalzell. But I do see difficulties if breach should arise.

5.49 p.m.

VISCOUNT COLVILLE OF CULROSS

I have a nasty suspicion that between them the noble Lord, Lord Wells-Pestell, and the noble Lord, Lord Hamilton of Dalzell, have seen my brief. They are perfectly right that there are substantial technical difficulties about this matter of exactly the sort that they have described. I may say that I am going to go on to say something constructive in a moment, but it would be very difficult to have a situation where there is the responsibility of the discharge of the probation order, the compliance with the conditions and the possibility of bringing a person back on breach whether it is under this clause or whether, as the noble Lord, Lord Donaldson, said, the same point could be applicable under later clauses in the Bill. Whenever you have a probation order imposed on a person then there are these formal statutory requirements and duties to the court, and I think it is right that it should be a trained, qualified probation officer who carries that responsibility. We then get to the point which the noble Lord, Lord Wells-Pestell, made, very much underlining the speech of the noble Lord, Lord Donaldson, that there is room for all sorts of assistance for that formal probation officer in the outside world.

I am very glad to expand a little the rather brief references that I made in an all too long final speech on Second Reading to the assistance we are going to get from the voluntary movements. As your Lordships may know, one of my ministerial responsibilities is to attempt to co-ordinate the voluntary social ser- vices, and in the course of meeting some of them I have been talking to people who are already co-operating in the trial areas where some of these new experiments will, we hope, get off the ground. There are people who are actually concocting with the Probation and Aftercare Service community service schemes which can start being put into effect the moment this Bill is passed. With this sort of thing—and community service is perhaps the best example, though no doubt there are others—I believe that the volunteers have an enormous amount to offer: their enthuiasm, the fact that they are volunteers, the sort of jobs they are doing into which the person sentenced to something called community service can really fit. There are very well worthwhile things going on ; I wish there were more. I see the role of the volunteers in the operation of this Bill as being a very substantial and important one.

When it comes to the suspended sentence supervision order, which is what this Amendment is about, I should not be surprised if on quite a number of occasions the probation officer formally in charge says to a friend, a volunteer, somebody who is sensible and knows how to deal with people, and who lives in the area, "I could do with your help in this case". There is no reason why he should not. I feel sure that the Probation Service does this already. If not, I wish it would. I believe, with the noble Lord, Lord Donaldson, that this is a remarkably helpful act of co-operation between the Probation and Aftercare Service and all the volunteers we can get. So anything I say is intended to be encouragement. But I do not favour this Amendment, because I do not believe we should put on the nominee rather than on the probation officer himself the final legal responsibility. But by all means let us do everything we can in this House and outside to try to get the volunteers to come in with the Probation Service and make these schemes work. I hope that, in those circumstances, the noble Lord will not want to press this Amendment, but perhaps will feel that I have given him some encouragement on the general subject.

LORD DONALDSON OF KINGSBRIDGE

I am very grateful to the noble Viscount. I did not expect my Amendment to be accepted as it stood, but I did hope that we could get the kind of encouragement he has given, which is very necessary in the voluntary movement. At the moment, very large sums of money are being spent, to my great pleasure, on the statutory movement ; and very large sums of money on the probationary hostels. But still far too little—in fact, none at all—is being put towards the capital of the voluntary bodies. The voluntary movement needs encouragement, and I think it has had it this evening and I am grateful. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.54 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 8 Page 10, line 12, at end insert— (" or (c) if that court had not the power to make such an order but would have had the power with subsection (1) of this section in force as it is at the time when the offender is dealt with under secion 40(1).")

The noble Viscount said: This is really a drafting matter. What it does is to enable the court to impose a suspended sentence supervision order in a case where at the time when the sentence itself was imposed the court was not empowered to do so. Two such situations arise: one concerns the sentence imposed before this Bill becomes enacted ; the second could arise where my right honourable friend makes rules altering the period of the sentence to which the supervision order can be attached. Your Lordships will recall that at the moment the order has to be limited for the same reason, shortage of staff. Supposing he made an order and after the order had been made the sentence would have been susceptible to being supervised but was not at the time it was imposed, this Amendment would have the effect of allowing the court afterwards to add a supervision order as well. This Amendment fills those two gaps, and at the same time it fulfils an undertaking given in another place. I beg to move.

VISCOUNT DILHORNE

The noble Viscount in moving this Amendment said it was a drafting matter. I must say that I hope he will have a further look at the drafting. If I understood him correctly, this provision is meant to operate if the court … had not the power to make such an order but would have had the power … if subsection (1) of this clause had been in force at the time when the offender is dealt with under Clause 40(1). If I understood him correctly—I hope he will correct me if I am wrong—that is what he said this Amendment was intended to do. I do not want to take upon myself the mantle of my noble friend Lord Conesford, but I would ask your Lordships to look at the language of this Amendment: or (c) if that court had not the power to make such an order but would have had the power with subsection (1) of this section in force as it is at the time when the offender is dealt with under section 40(1)". That is a very cumbrous way of saying "but would have had the power if subsection (1) of this section had been in force at the time when the offender is dealt with". As the noble Viscount agreed with me that that was what this Amendment was intended to do, and as he said it is purely drafting, I do hope he will undertake to improve the drafting.

May I draw his attention to another drafting point on this very same subsection. It starts with the situation where a court varies the operational period of a suspended sentence or makes no order under paragraph (d). Then in paragraph (a) you find the words, "in place of any such order". What is meant by ' any such order" when the only order previously referred to is one varying the operational period of the suspended sentence? Perhaps the noble Viscount would look into this. Does he think that the reference to "any such order" is a reference to a case where no order is made? If so, I think again the drafting would require to be looked into.

VISCOUNT COLVILLE OF CULROSS

I have another point earlier in the Bill which the noble and learned Viscount has asked me to look at, and I am still looking. Rather than try to give a sensible answer as to which order is concerned under Clause 11(10)(a) may I take this away, and if we could make this Amendment now I will see whether perhaps we can rephrase it at a subsequent stage. The substance of the Amendment is important and I think it should be in the Bill.

Clause 11, as amended, agreed to.

Clause 12 agreed to.

Clause 13 [Restriction on imprisonment of persons who have not previously served prison sentences]:

5.59 p.m.

BARONESS WOOTTON OF ABINGER moved Amendment No. 10: Page 11, line 5, leave out ("magistrates'").

The noble Baroness said: This is a very simple Amendment, but I venture to think it is one of some importance. I think it is common ground on every side of the Committee that the decision to send any person to prison for the first time is a very serious matter. That is recognised in the wording of this Bill. It is stated in Clause 13 that the court is not to pass a sentence of imprisonment on a person not previously imprisoned unless it is of opinion that there is no other appropriate method of dealing with him, and unless the court has obtained and considered information about the circumstances and taken into account any information relevant to his character and his physical and mental condition. In other words, no court is to pass a sentence of imprisonment without getting the fullest possible information about the circumstances of the crime and about the person who is found guilty of it. With due deference to my noble friend, Lord Hale, I am prepared to agree that the majority of persons who go to prison for the first time do not go again, but it is also true that every time a person goes to prison his chances of going to prison for a further time are increased. This progression—can I engage the noble Viscount's attention?

THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)

The noble Baroness need not fear. I am answering this Amendment.

BARONESS WOOTTON OF ABINGER

I thank the noble and learned Lord.

Every time a person goes to prison his chances of going again are increased. This increase becomes progressively greater over a large number of sentences of imprisonment. I say this in spite of the fact that people who go to prison for the first time generally do not go back. Nevertheless, the decision is an important one and all courts, as this clause recognises, are to give great weight and consideration to making this decision. But under subsection (2) only magistrates' courts are to give their reasons for making this decision. The higher courts are not to give their reasons ; they are not obligated to do so. There is a precedent for asking a court higher than a magistrates' court to give reasons about sentences of imprisonment. Under Section 17(3) of the 1948 Criminal Justice Act quarter sessions were required to give reasons for sentencing to imprisonment in the case of a person under 21. The obligation was equal both on magistrates' courts and on the quarter sessions, but these provisos as they related to quarter sessions disappeared when quarter sessions were, as it were, swallowed by the Crown Court.

One asks oneself why the Crown Court is not required to give reasons for making these important decisions. It cannot be that the higher courts act irrationally and without reason—that is an explanation which we should discard at once—or that they have less reason than the humble, unlearned magistrates. One would have supposed that their reasons would carry even greater weight than the reasons that the unlearned magistrate could give, and one would certainly suppose that the higher courts—the Crown Court and the High Court Judges and circuit Judges—would be considerably more articulate than the magistrates and, therefore, would be better able to express their reasons in a form which would be both intelligible to the prisoner concerned and to the public whose concern it would be. And there might also be better grounds in the event of an appeal. I would therefore earnestly ask that all courts should be joined together in a common obligation, not only to give serious consideration to this important decision but also to state the reasons which have led them to arrive at their decision. I beg to move.

VISCOUNT DILHORNE

I am entirely with the noble Baroness, Lady Wootton of Abinger, in thinking that in every case a court ought to give the most serious consideration, as the clause requires, before sending any person to prison. I think that is the almost invariable rule, certainly in the higher courts, in the circuit court and in most courts, and I shall be surprised if it is ever departed from. Therefore I myself do not see any valid reason for requiring them to state their reasons, because I should have thought that in most cases they do. In any event, it cannot affect the sentence that is passed ; it will not invalidate it and there would be no ground of appeal. I should have thought that this requirement in relation to the magistrates' court was merely there to ensure that they paid attention to this practice, which I think the vast majority of those courts ordinarily do. When the noble and learned Lord, the Lord Chancellor, comes to reply I shall be interested to hear what sanction is imposed on magistrates should they fail to comply with the requirements of this subsection. There is no provision at the moment. So far as the higher courts are concerned, and it is to them that the noble Baroness, Lady Wootton, wants to make the Amendment apply, I do not think it is necessary. I think it is another bit of trouble that will have to be taken to ensure that it is complied with, and it will make matters more complex. I think myself that this practice is always complied with.

LORD WIDGERY

I would endeavour to persuade your Lordships not to accept this Amendment for two reasons: first the superior courts already invariably give reasons for sentences, whereas the general practice is that the magistrates do not. Consequently it is logical to require the magistrates to give reasons in appropriate cases, whereas the superior courts do not require to he so instructed. I do not pretend that in every case in which a first sentence of imprisonment is passed one can spell out the judge's reasons and precise motives for passing the sentence, but in nine cases out of ten I am confident that the answer would be that the gravity of the offence itself requires the imposition of such a sentence and very little is to be gained by requiring, as a matter of law, that those words should be included as part of the formula of sentencing.

The other reason why I suggest this Amendment will have unfortunate consequences is in regard to the appellate system. The tendency when a judge is required to give reasons for sentence is to make people more interested in his reasons than in his sentence. When the matter comes to the Court of Appeal on an appeal against sentence, we always regard ourselves as being concerned with whether the sentence was the right one. One of the matters we look at is the judge's reasons. We consider them part of the material for deciding whether or not the sentence was right. I have little doubt, from past experience, that if judges are required to give these reasons we shall find that a great many people will appeal, not because the sentence was wrong but because they think the reasons were wrong. We shall find ourselves arguing a great deal about the validity of the reasons and being distracted from the issue of whether the sentence was right. From my experience, I think judges are criticised for saying too much. Most of the comment I receive is of that nature. But if the treatment of the reason for sentence in the Crown Court is not wholly acceptable, it could, as an alternative to legislation, be cured by the influence of the Court of Appeal.

THE EARL OF MANSFIELD

The noble Lord, the Lord Chief Justice, has quoted the remarks of a previous Lord Chief Justice, who was the first holder of the title I presently hold. In Campbell's The Lives of the Chief Justices of England my ancestor's advice to justices was this: Consider what you think justice requires and decide accordingly, but never give your reasons, for your judgment will probably be right but your reasons will certainly be wrong. On a practical note, I would point out that the higher courts are courts of record, in that there is a shorthand note. The magistrates' courts have no such facility. If a judge of the Crown Court is to be put right it is there for all to see in the Court of Appeal ; if a magistrates' court is to be put right the Crown Court have to go into it de novo.

LORD DONALDSON OF KINGSBRIDGE

I am a little puzzled by the noble and learned Lord's statement that the higher courts always give reasons. I think that this is a very good thing. But if that is the case I cannot see why there should be any objection to incorporating this steady habit into the Bill. I think what my noble friend is saying in this Amendment is that the suggestion that it is all right to send people to prison for the first time without giving reasons is not sound. The noble and learned Lord tells me—and I am happy to accept it—that the High Court always gives reasons, but I do not find anything derogatory in putting this into the Bill.

I feel inclined to support my noble friend, if only in order to learn what the reasons are. Reasons are changing over the years. Nowadays if you speak to anybody who has had anything to do with running a prison they will tell you that prison is the last place to which to send people if you can help it. They did not say that twenty years ago. Times have changed, and I think the High Court should give a lead in telling us how their minds are working. This would be helpful. My own feeling is that this is a sensible Amendment, and it should not be regarded as derogatory. It certainly is not meant to be derogatory, and am inclined to support it.

6.12 p.m.

THE LORD CHANCELLOR

Of course I agree wholeheartedly with some of the things said by the noble Baroness, Lady Wootton of Abinger. She began by saying that it was an extremely serious thing to send anybody to prison for the first time, and that it should be done only for weighty and, indeed, irresistible reasons. With that I wholeheartedly agree. I was less certain how she meant me to take her next remark ; I am not sure that I was quite able to discern its relevance. She said that every time a person goes to prison it is more likely that he or she will go there again. Of course that is true ; but I am not quite sure what inference she wanted me to draw from it ; either that prison always encourages crime—which would be a melancholy conclusion to have to draw, because the conclusion from that premise would be that we should abolish prisons—or, alternatively, that if a man has committed more than one crime he is more likely to commit another. If that was the inference which she asked me to draw I am only too happy to draw it ; but at the moment I do not see its relevance to the Amendment.

BARONESS WOOTTON OF ABINGER

I think I can possibly shorten the discussion by saying that that remark was intended merely to emphasise that this is a very weighty and important decision, because when a person is sent to prison for the first time it may be starting him on a progressive career. It was merely to emphasise that point, and no other.

THE LORD CHANCELLOR

I would have accepted the noble Baroness's conclusion without the premise, as I indicated to her in my first remark. But my own view is that the conclusion that she suggests does not follow from that premise, but follows from the fact that to deprive a man of liberty is a great liberty to take with that man and does not necessarily do him any good. At any rate, I am glad to have cleared that out of the way, because it now enables me to deal with the substance of the Amendment.

The first thing to realise is that magistrates in general do not have to give reasons for anything. That is the general position. Whether the reason is that advanced by the present distinguished inheritor of the famous Mansfield title or some other reason my historical researches do not permit me to say. Magistrates do not have to give reasons, and that is why, if it is desired that they should give reasons, it is necessary to put it in an Act of Parliament. If it is not put in an Act of Parliament then the general rule will apply. The second thing about magistrates is that they do not have a shorthand writer taking a note of what they say, and therefore not merely does the clause provide, as it stands without the Amendment, that the magistrates shall give a reason but that the reason shall be specified in the warrant of commitment.

My noble and learned friend Lord Dilhorne, if he will permit me so to call him, shot a very fast ball at me asking what was the sanction if the magistrates did not do what the Act of Parliament required. I am a little hesitant to tell him, because he sat on the Woolsack before me. I would venture to make two observations. The first is that the least that would happen to them if they were found out would be a "rocket" from the Lord Chancellor. The second, which I think appears from the form in which this clause appears in the Bill, is that, at any rate after the passage of this Bill, there would be a question whether the warrant of commitment which did not contain the reasons was a sufficient committal for prison. Therefore I take it that some prerogative application, either for habeas corpus or for certiorari, might lie against them. However, those two observations are made without premeditation and without malice prepense. I hope that my noble and learned friend will forgive me if I have made a mistake. If I have, I will seek to repair it by wearing sackcloth and ashes on a later occasion.

The next thing is what do you want the High Court to do? The first thing to say about that is that whereas magistrates do not have to give reasons, the High Court has to give reasons in every case. This is an essential feature of our superior courts. They not only have to give reasons why they send a man to prison, but they are expected to give reasons about the whole character of the case if they do not send him to prison. They have to give reasons for any decision they arrive at which is a reasoned decision and not simply a question of discretion, such as costs. Therefore, the Amendment, if passed, would not in fact do much good to the actual practice of the High Court.

Then the noble Lord, Lord Donaldson of Robertsbridge (I am afraid that was a Freudian slip ; I used to live near Robertsbridge. I should have said Lord Donaldson of Kingsbridge, whom I have known for most of my life), says that if the courts always do give reasons, what is the harm of asking them to do so in an Act of Parliament. If I may respectfully say so to him, there is every possible harm, because it immediately suggests that the general rule does not operate ; and if it were done sufficiently often it would deprive them of the obligation to give reasons in other cases. This is an example of the way in which you can whittle away a beneficial general rule by trying to enact it in individual instances, because you very soon get to a situation where people will doubt whether, in the absence of an enactment, the general rule will apply.

Of course, the High Court gives its reasons in a very different form. The magistrates have to state their reasons in an extremely compendious and almost formalistic way, so that they can be converted into the reasons contained in the warrant of commitment. The High Court judge expatiates on the case at length, and the reasons are contained in a reasoned judgment that is reduced into a shorthand note which is available for the Court of Appeal (Criminal Division). This is much more helpful, if I may be allowed to say so, than the kind of reasons which magistrates have statutorily to give in committing a person to prison on a warrant. It probably takes a foolscap page at least (and sometimes two or three), and describes the nature of the case, the record of the prisoner, the things which the Court believes and does not believe, and the arguments of counsel on both sides (and normally, in mitigation, it is only the defence), as well as how much of it the Court accepts and how much it rejects. It is a far more valuable document than that which is required of magistrates under the statutory procedure.

The last point which the noble Baroness made was about Section 13 of the Act of 1948, which required quarter sessions to give reasons. I was in Parliament in another place during the passage of the Bill of 1948, and I was on the Standing Committee which dealt with that particular Statute. I cannot without research remember whether there was any expatiation on it, or what was the situation of quarter sessions at the time. But it was not very long before that that quarter sessions were sometimes presided over by gentlemen who were not even qualified lawyers. I remember that when I was first at the Bar a chairman of quarter sessions, who was a retired colonel, summed-up to a jury in the following immortal words, "There has been too much speechifying in this case. You will consider your verdict." Unfortunately, the jury convicted after that admirably concise summing-up and the Court of Criminal Appeal got to know about it, so that a probably guilty man got off on appeal. But you do not have to delve very far into the distant past before your realise that quarter sessions were not quite the enlightened thing that we all hope the Crown Court is to-day and will be in the future. For all these reasons, while I do not think I differ from the general philosophy of the noble Baroness, I would rather hope that the two noble and learned Lords on the Cross-Benches, who contributed so concisely and well to our discussion, will have persuaded her not to press her Amendment.

LORD DONALDSON OF KINGSBRIDGE

Before the noble and learned Lord sits down, will he explain whether these reports which he has been describing to us are available to anyone, or are they private to the Appeal Court?

THE LORD CHANCELLOR

They are private documents in this sense, that the transcript as a transcript is not generally available ; nor, I think, should it be so, because it refers to what for some people is a very painful occasion. I think there would be considerable complaint if transcripts were made readily available. But of course a court is a public place ; the Press are fully at liberty to report what is said and, indeed, members of the public are at liberty to attend. So that anything except the official transcript is extremely public.

BARONESS WOOTTON OF ABINGER

I was rather surprised when I took what was said at the beginning of this discussion in conjunction with what the noble and learned Lord the Lord Chancellor said at the end. I had not expected to find a former Lord Chancellor and the present occupant of the Wolsack apparently in flat contradiction. The noble and learned Viscount, Lord Dilhorne, said, in effect that the higher courts have very weighty reasons and give these matters very serious consideration. So weighty are their reasons that it is quite ridiculous to ask for them to be publicly exposed. The present occupant of the Woolsack said that the reasons are public, exposed in the judgments that are given.

VISCOUNT DILHORNE

I think the noble Baroness is putting into my mouth words which I did not utter. Perhaps I did not make myself clear or speak loudly enough, but I do not think I said quite what she attributed to me.

BARONESS WOOTTON OF ABINGER

I am sorry if I misunderstood the sense of what the noble and learned Viscount said, but that is certainly how it appeared to me. Let me say straight away that I am making no complaint about magistrates being

required to give reasons. I think that is entirely proper. I am rather concerned—and I hate to find myself venturing to differ from the noble and learned Lord the Lord Chief Justice—about what happened in what used to be quarter sessions. I have heard cases in quarter sessions where sentences of imprisonment have been passed, and I think that absolutely nobody present in the court could have had any idea why those sentences were imposed. To some of us they appeared to be quite staggering. The noble and learned Lord the Lord Chancellor suggested that now that quarter sessions are subsumed into the Crown Court, all will behave as beautifully as the Crown Court, or as beautifully as the High Court previously did. But these things take time, and for that reason alone I should have thought there should be a general obligation.

The other point I would make is that though all criminal courts, except juvenile courts, are open to the public, not a great many of the public can attend, and not many of the public who can go will entirely follow what is going on or understand what is being said. Therefore, a simple statement of reasons is of concern not only to the lawyers who may subsequently have to deal with appeals, not only for establishing the law, but also for the education of a wider public and for the information in ordinary language of the persons immediately concerned, who are the prisoner and his friends and relatives. I should have thought it would be a very simple matter to write in this simple obligation on all courts—not magistrates' courts in particular—quite accepting the fact that, by and large the higher courts give reasons, though, to my knowledge, there have been very considerable exceptions in what used to be quarter sessions. It would be a simple matter to write this in for everybody, and it would be most informative and helpful to the public.

6.27 p.m.

On Question, Whether the said Amendment (No. 10) shall be agreed to?

Their Lordships divided: Contents, 49; Not-Contents, 69.

CONTENTS
Archibald, L.	Beswick, L.	Brockway, L.
Arran, E.	Birk, Bs. [Teller.]	Buckinghamshire, E.
Bacon, Bs.	Blyton, L.	Champion, L.
Collison, L.	Jacques, L.	Shackleton, L.
Crook, L.	Janner, L.	Shinwell, L.
Delacourt-Smith, L.	Llewelyn-Davies of Hastoe, Bs.	Slater, L.
Diamond, L.	Lloyd of Hampstead, L.	Stocks, Bs.
Donaldson of Kingsbridge, L.	Longford, E.	Summerskill, Bs.
Douglass of Cleveland, L.	McLeavy, L.	Swaythling, L.
Fiske, L.	Maelor, L.	Taylor of Mansfield, L.
Gardiner, L.	Morris of Kenwood, L.	Wells-Pestell, L.
Garnsworthy, L.	Nunburnholme, L.	White, Bs.
Hacking, L.	Ogmore, L.	Wootton of Abinger, Bs. [Teller.]
Hale, L.	Phillips, Bs.
Hall, V.	Popplewell, L.	Wright of Ashton under Lyne, L.
Henderson, L.	Royle, L.
Hoy, L.	St. Davids, V,	Wynne-Jones, L.
NOT-CONTENTS
Ailsa, M.	Elles, Bs.	Mar, E.
Ailwyn, L.	Elliot of Harwood, Bs.	Milverton, L.
Amory, V.	Emmet of Amberley, Bs.	Monck, V.
Bafour, E.	Ferrers, E.	Morris of Borth-y-Gest, L.
Belstead, L.	Fortescue, E.	Mountevans, L.
Berkeley, Bs.	Gainford, L.	Mowbray and Stourton, L. [Teller.]
Brooke of Cumnor, L.	Gowrie, E.
Brooke of Ystradfellte, Bs.	Greenway, L.	Northchurch, Bs.
Brougham and Vaux, L.	Grenfell, L.	Oakshott, L.
Clwyd, L.	Grimston of Westbury, L.	Rankeillour, L.
Coleraine, L.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	Rockley, L.
Colville of Culross, V.		Ruthven of Freeland, Ly.
Cowley, E.	Hanworth, V.	Sandford, L.
Craigavon, V.	Howard of Glossop, L.	Sempill, Ly.
Croft, L.	Hylton-Foster, Bs.	Strange, L.
Cromartie, E.	Inchyra, L.	Tweedsmuir of Belhelvie, Bs.
Daventry, V.	Kilmany, L.	Vivian, L.
Davidson, V.	Lauderdale, E.	Wakefield of Kendal, L.
de Clifford, L.	Lothian, M.	Ward of Witley, V.
Denham, L. [Teller.]	Lucas of Chilworth, L.	Widgery, L.
Digby, L.	Macleod of Borve, Bs.	Windlesham, L.
Dilhorne, V.	Mancroft, L.	Wise, L.
Dundee, E.	Mansfield, E.	Young, Bs.
Eccles, V.

On Question, Motion agreed to.

Clause 13 agreed to.

6.35 p.m.

LORD JACQUES moved Amendment No. 11: After Clause 13 insert the following new clause

Short sentences

" . A court shall not pass on any offender a sentence of imprisonment of not more than six months which is not suspended unless the court after considering a social inquiry report from a probation officer is of the opinion that no other method of dealing with him is appropriate."

The noble Lord said: At the present time the suspension of short sentences by a magistrates' court is mandatory. We have earlier this afternoon confirmed that if this Bill is passed into law then suspension will cease to be mandatory. The Amendment which is before your Lordships' Committee is a very modest one. It says that before a court passes a short sentence it shall consider a social inquiry report and be of the opinion that no other method of dealing with the offender is appropriate. That, I think, is extremely modest. I would point out that it does not say the date when the inquiry report should have been made. For example, in the case of a constant offender it could be a report which was made the previous year, or even two years previously, if the court has reason to believe that there has been no change in the circumstances. So that even with the constant offender this is not going to cause any grave inconvenience to the Probation Service or the court.

I have known of cases where offenders have had one short sentence after another, stretching over a good deal of their lifetime, and have never had the opportunity of probation ; and as far as one could see from their records, there had never been a social inquiry report. That, I think, is quite inconsistent with the wishes of Parliament, and consequently it is necessary for Parliament to lay down quite firmly that there should be a social inquiry report, particularly in cases of that kind. I would remind your Lordships that the Amendment does not seek that in all cases there should be a social inquiry report before sentencing. All it says is that there shall be such a report in those cases where the court is contemplating a sentence of imprisonment which is not to be suspended. There will therefore be relatively few cases. It does not include, of course, those cases in which the sentence is suspended.

As to its practicability, I would ask the noble Viscount not to look at his brief but to look at his own Second Reading speech. On this particular point it is very clear. He said: … I cannot see why in practice there should not be such a report before a court in almost any case of any gravity … certainly in anything that is liable to endanger somebody's liberty or livelihood ".—[OFFICIAL REPORT, 26/6/72, col. 658.] This Amendment asks that there should be such a report in circumstances in which the offender is going to lose his liberty. I hope, therefore, that the question of practicability will not again be raised. I beg to move.

LORD JANNER

May I support this appeal to the noble Viscount? It seems to me that the point made by my noble friend is a very important one. We know of cases, particularly years ago, in which individuals have been sent to prison time after time without any real opportunity having been given for an investigation into their circumstances. I myself have had the experience of appearing for a man who has been convicted on a number of occasions, and on hearing his circumstances I have been perfectly satisfied that that person had not been properly treated in view of his background and in consequence of the life which he had led in his particular circumstances. I am pleased to say—and I am talking about 30 or 40 years ago—that when these facts were presented to the court in a fresh form (they had never been presented before in that particular way) the magistrates took what was a very exceptional view in those days: that here was a case in which they ought to put a person on probation.

There is no doubt in my mind that there are a number of people who would not have received the sentence they did receive if the circumstances had been presented to the court by a trained probation officer. From what the noble Viscount said on a previous Amendment, we all realise the considerable difficulties and appreciate his point about the number of persons who might be involved and the training which might have to be given to probation officers for this purpose. But here we are dealing with a much more limited number of cases. I hope that the noble Viscount will consider the points that have been made and that the Government will accept this Amendment.

LORD WELLS-PESTELL

May I say to the noble Viscount that I am not unmindful of the difficulties which would follow the acceptance of an Amendment of this kind? What it seeks to do, very clearly, is to ask magistrates not to commit anybody to prison for a period of up to six months without first of all examining the result of a social inquiry. I realise that this can impose a tremendous strain both on the court and on the Probation Service ; but the points we are trying to get home are, first, the futility of prison as many of us know it, and second, the futility of short sentences where you are doing nothing, other than keeping a prisoner incarcerated for the greater part of every day. In the majority of cases he will be in a cell with two others and will be under lock and key the whole time. Save in one or two of our prisons there is little opportunity for training to be given at all. We feel he might be better employed under supervision "on the outside".

I am not unmindful of the difficulties posed by this particular Amendment. I wonder whether the noble Viscount (who, I imagine, will not be able to accept it in its present form) would be prepared to say that when this Bill becomes enacted some sort of directive, if that is the right word, may be circulated to the courts calling attention to the spirit, if not the letter, of this proposal.

BARONESS ELLIOT OF HARWOOD

I would add my plea to that of the noble Lord. My mind goes back to many years ago when, with the advice of counsel and the Home Office, we were debating the first of the Criminal Justice Bills after the war. I think it was in 1948 or 1949.

A NOBLE LORD

It was 1948.

BARONESS ELLIOT OF HARWOOD

We were then searching for alternatives to short prison sentences. Somebody (I think it was Marjory Fry) came up with the suggestion of the detention centre in which a short sharp sentence could be served ; and that was put in the Bill. I do not believe it ever worked because there were practically no detention centres available for people in the younger age groups. I can remember all those distinguished people on the Committee years ago, searching for alternatives to short sentences. Nobody came up with anything that was original in any way except the detention centre. After making what seemed endless visits to prisons for some 20 years (I have not done so recently) and after examining many ways of dealing with people, I came to the conclusion that the imposition of short sentences was something to be avoided if possible. I know the noble Viscount feels the same. He said as much in one of his remarks. But the fact remains that there still is this possibility of people going to prison for six months—a sentence which usually ends after four months—and which as the noble Lord, Lord Wells-Pestell, said, is very expensive from the point of view of the Home Office and unsatisfactory from the point of view of the person who has received the sentence who, with any imagination and care, could probably be kept out of prison and dealt with in some other way.

Earlier this afternoon we debated the subject of the shortage of probation officers. It struck me as I listened that we are now, through social service, building up teams of people, not all of them probation officers, to deal with a variety of different types of social service. In Scotland, the probation officers are now part of the social work group team, but this may not be so in England. Far more people are now being brought into this work. I do not think it would be outside the bounds of possibility to speed up the training and recruitment of suitable people in this field of social work if we really put our backs into it and made the profession, as such, attractive and worthwhile. There are lots of people interested in this type of work.

While it may not be possible to accept the Amendment as at present worded, I hope the noble Viscount will realise that people all over the country feel on this subject as I do and as do the Members of the Opposition. The present method is really an extraordinarily unsatisfactory way of dealing with certain types of offender ; it cannot be beyond the wit of men to-day—and I have been talking about the situation between 1948 and 1968—to find an alternative. This is particularly so since there are now more opportunities, more social workers and a whole new attitude towards social work. In my opinion it has progressed enormously. Even if the Amendment cannot be accepted as such, I hope that some form of instruction can be circulated to the courts.

BARONESS BACON

I should like to make a plea to the noble Viscount to accept this Amendment. I should like to go back to something that he said on a previous Amendment when we were discussing short sentences. When some of us were talking about conditions of those who serve short sentences he said that the prison service was not all black and there were some bright spots. I agree that there are some bright spots in the service but there are some very black ones. I think the noble Viscount would agree that those put in prison for under six months are most likely to serve their sentences in local prisons and not in a training prison ; and I think that he would also agree that the black spots in the prison system are in the local prisons, which are nothing more than overcrowded transit camps. I hope, therefore, that when considering this we shall consider not only the alternatives to prison itself but the alternative to local prisons in the form of other treatment which might be available.

LORD SOMERS

I am not learned in the law, but I wonder whether the noble Viscount would say whether, were this Amendment accepted, there would be a risk that some magistrates, if a report were not immediately available, might take the easier method of giving a longer sentence than six months in order to save the trouble of getting one.

BARONESS BIRK

I wish to support the Amendment. If the mandatory provision regarding suspended sentences had not gone it would be unnecessary. But since the mandatory provision is not operative I think it essential to have this Amendment in order to make sure that where there is a sentence of less than six months there is no alternative. For that reason I support the Amendment.

6.51 p.m.

VISCOUNT COLVILLE OF CULROSS

I think I may set Lord Somers's mind at rest by telling him that magistrates cannot send a person to prison for more than six months, except in one or two rare Excise cases, and matters of that sort. So I do not think that they could take that way out. I do not know where to start to answer this discussion because we have had so many helpful and useful speeches. The noble Baroness, Lady Bacon, talked about local prisons, and it is there that almost all go if they have a short sentence, except for young offenders and people sent to borstal and detention centres. Even so, all such prisons are not black, although I grant that some of them are. But has she been to Dorchester?

BARONESS BACON

Not for some time.

VISCOUNT COLVILLE OF CULROSS

I went the other day. I grant that this may be an exception. These are the prisons at the top of the priority list in the building programme for relief, and in the end one prays that there will be rebuilding. But first we must get out some of the inhabitants so that there is room to rebuild. I agree with the noble Baroness that this is the area to which priority should be given, and at the moment in the Prison Department it is being given.

My noble friend Lady Elliot of Harwood mentioned the combined social services in Scotland. South of the Border the Probation Service is a separate body and probably there would be difficulties. They are not run under the same ægis ; the social work departments are local authority based whereas probation and after-care is run by the magistrates' courts. I think that there would be certain practical difficulties about bringing in people from the local authority field to assist in the preparation of these reports ; apart from the fact that I suspect that those as learned in the subject of proba- tion as is the noble Lord, Lord Wells-Pestell, would probably say that different skills are involved in the preparation of probation reports and social inquiry reports, than in some of the other admirable training and techniques which enter into the work of other social workers in the local authority field. It is probably right that these reports should be prepared by trained probation officers.

The value of such reports was pointed out by the noble Lord, Lord Janner. I do not suppose that I have read as many of them as the noble Lord has, but I have read a great number. They continue to be of value. I see them in connection with parole cases ; they provide a complete history of a person and I know their value. I also know their value when deciding what sentence should be passed on a man who has appeared before a court. I should be chary of accepting the suggestion of the noble Lord, Lord Jacques, that a court could rely with safety on a report which was a year, or two years, old, or anything of that nature. It is strange how things change in the circumstances and way of life of a person. I should not be happy about justifying this Amendment as something which did not cast a vast workload on the Probation Service by the expedient of saying to a court, "If you know a chap, and you have seen him before and you have an old social inquiry report about him, that will fulfil the spirit of the legislation." I think that courts would insist on having a new and up to date social inquiry report, if for nothing else than the fact that something in his favour might previously have been missed ; some new change of circumstances about which the court was not aware, but the probation officer might find out.

I am in the same difficulty as when I was discussing an earlier Amendment. This is a class of case, as was said by the noble Baroness, Lady Birk, which is most important when the sentence is not going to be suspended, and magistrates dealing with the matter want all the guidance they can get. I do not think that a man who is being sentenced to a period of up to six months by a magistrates' court is more deserving of attention than a man who is being sentenced for the first time for any period by any court ; for instance, the type of person covered by the provisions in Clause 13. Or indeed—and I strongly emphasise this—a person who is liable to be sentenced to a term of imprisonment and in relation to whom the magistrates are considering a suspension of sentence. All these are cases on which we have had Amendments. One was not moved, but we discussed it with another Amendment. They are all cases where a man's liberty is liable to be taken away, and one would like to see a social inquiry report as a matter of normal practice.

What does this Amendment mean? It goes further than either of the other two for it covers slightly different ground. The noble Lord, Lord Jacques, said something about not many people being involved. But in 1970 magistrates' courts imposed sentences of immediate imprisonment of six months or less on over 18,000 people. That does not take account of sentences that were suspended let alone suspended mandatorily. It covers a substantial number of people who were not going to prison for the first time. The statistics are not broken down sufficiently to be able to tell how that works. So we should here be extending beyond even the scope of what we talked about in respect of the earlier Amendment. As I have already told the Committee, this is an approach favoured by the Government. We should like courts to have social inquiry reports when a sentence of imprisonment is considered, even a suspended sentence. I have explained the situation, the question of manpower and the diversion of resources that would be needed to make this statutory ; and also that we could do it under rules. I do not think that I can go any further than that. This is another case where in the ideal world with a full complement of probation officers it would be possible. I agree with the noble Baroness, Lady Elliot of Harwood, about that being a rewarding job and we are recruiting as hard as we can. We have set a high target which I believe we shall attain.

I think we ought to try to do this, as was said by the noble Lord, Lord Wells-Pestell, by encouragement ; by Circular. There certainly will be a Circular to follow this Bill. I have in mind one which would be rather more comprehensive and go into other topics ; it is a matter which I am discussing in the Department. If we make this statutory, it will be at the expense of someone else who needs just as much attention and deserves as much care and sympathy as someone who would be covered by this Amendment. I do not think it would be right to single out these people, having regard to our fairly scarce resources. I hope the general policy that I explained earlier to the Committee will be acceptable in this case too, and, desirable though this Amendment is, I hope, for the reasons I gave earlier, the noble Lord will not think that he has to press it.

LORD JACQUES

I should like to raise two points. First, as to numbers. As I understand it, the noble Viscount said there were 18,000 cases of short terms of imprisonment imposed by magistrates' courts.

VISCOUNT COLVILLE OF CULROSS

Not suspended ; those were instant.

LORD JACQUES

This Amendment is dealing only with not suspended cases. I would guess that in 80 per cent. of those cases there would be a social inquiry report already. I should think that the number where there was not a social inquiry report would be about 20 per cent. In that case it would add only 3,600 cases. I do not think that is a colossal number or a very big price to pay for what we should get. We should get a social inquiry report at the point where it is essential. There is no other point where a social inquiry report is more necessary than before sending a man to prison. I think that this price would be worth paying.

VISCOUNT COLVILLE OF CULROSS

If I may intervene for a moment, the noble Lord will remember the rather regrettable statistics I produced earlier, and he will also know that as between men and women it is the men preponderantly who are the offenders. It was the adult men in the magistrates' courts where we were down at the very low end of the scale in the number of cases where there was a social inquiry report. I do not think, alas!, that his assumption is justifiable, and I believe that the number of extra social inquiry reports would be a good deal larger than he has said.

LORD JACQUES

I do not think there would be any profit in pursuing this point, because neither of us can get at the figure with the information available. It is also clear that the Amendment will not be accepted and that it would be lost in a Division. I therefore beg to withdraw the Amendment.

Amendment, by leave, withdrawn.

House resumed.