§ 4.8 p.m.
§ House again in Committee.
§ THE CHAIRMAN of COMMITTEES: The Committee is considering Amendment No. 33.
§ BARONESS BIRK
I rise to support the Amendment to which I have added my name. My noble and learned friends who have moved the Amendment gave some disquieting figures, which in order to save time I shall not repeat but which showed clearly the numbers of people who are remanded in custody and then acquitted or who are remanded in custody and then given non-custodial sentences. One of the most disturbing features, particularly with regard to young people, is the high proportion of young people who are remanded in custody compared with their contribution to crime. In addition, there is a presumption regarding imprisonment of first offenders which, as we know, only happens in certain circumstances but which is not followed in remand in custody. Therefore a great many people are going to prison who according to the rest of the laws of the land would not be sent to prison when found guilty. One of the practical side effects of this is that it blunts prison as a deterrent. Some years ago when I was working in Holloway, first as a lecturer and then as a prison visitor, it was quite clear from what a number of the girls and women said that once they had been inside the idea of going back did not worry them unduly.
Then, the question of legal representation is, I fear, an extremely important one. In a report on some research carried out in 1970 for the L.S.E. by Michael 1069 Zandar, in interviewing 134 prisoners he found that almost two-thirds of them who had asked to see a solicitor had in fact been refused. What I am particularly concerned about personally is the practice of the questions of bail and custody in the magistrates' court. Something has been said by my noble and learned friend Lord Gardiner about the role of the police and the point that in courts where the police are listened to, almost unquestioned, they then assume a great deal of power. There is not only a difference between courts; there is a difference between benches; there is a difference between the attitudes of individual magistrates. It is not always, in my view, a question of assuming power. The police have to act in many cases as the cautionary element. They are in effect, if you like, acting as civil servants warning the Minister of the consequences of an action. It is the responsibility of the court—taking into account what the police have said, and taking into account either what the defendant himself or herself, or the legal representative, has said—what decision should then be made.
What I believe is extremely important, and certainly is not done sufficiently now—this is why I believe this Amendment is so important and why it is essential that it should be incorporated in the Bill—is that there should be sufficient probing. One of the criteria or conditions laid down has been the case of interference with witnesses. Quite recently we had a case in my court where the police immediately put in a objection. A husband and wife were involved and, so far as the wife was concerned, there was interference with a witness. When this was gone into it was found that in a moment of anger, because she had been "shopped " by her sister-in-law, she had made threats at the police station about her sister-in-law. Once this had been opened out and she had calmed down, it was finally agreed that she should receive bail and report to the police daily. At the moment there is nothing except guidelines. One may argue, and the noble and learned Lord will argue, that magistrates should do these things. Sometimes they do and sometimes they do not. That is why it is so important to have it in the Statute. If this case had not been gone into the objection would just have been registered 1070 that this defendant was likely to interfere with witnesses.
One of the other ways in which this power is used, and which the noble and learned Lord himself has drawn attention to, is in the remanding in custody in order to give the defendant a taste of prison. This is not a myth or anything I have clutched out of the air. I have myself sat with chairmen in the old quarter sessions, now the Crown Court, where they have quite openly stated that it was a good idea to give somebody a few weeks in prison; that it would teach him a lesson. It has taken quite a lot of nudging, and sticking one's elbow into their ribs, sometimes, to get a change of view, if one was lucky to do so. The noble and learned Lord himself, I am pleased to say, when he was addressing the Magistrates' Association last September, said:I am not at all saying that in other systems of law this might not be a good idea. I am only saying it is not the law of England and it ought never to be done. It is basically contrary to the philosophy of Magna Carta and the Bill of Rights.I could not say it any better so I had to quote his Lordship's words. This is what is going on and this is one of the other factors that is so worrying. One of the most important subsections in the new clause is the one on legal aid which has been referred to by my noble and learned friend. Without legal aid, the question of people being able to plead for themselves, or being represented in what is a crucial decision of whether they lose their liberty or not, seems to be an insoluble one. That is why this is an extremely valuable subsection and one of tremendous importance.
Finally, may I say why I think it is absolutely essential that this clause should be part of the Statute and not a guideline, nor just a circular. If this is all part of the Statute it means, certainly when lay magistrates are sitting, that if they overlook or forget some of the points that have to be raised, then the clerk, who is there to advise on legal matters, is able to remind them—he has the right, indeed the duty, to do so—that this is in the Statute and it is their responsibility and their duty to ask these various questions; to make absolutely sure beyond any doubt that everyone knows his rights and that if someone has a right to bail he should receive it. It is no good saying that this 1071 should be known and should be remembered or that a circular should be laid on the table. One has to remember that lay magistrates are not sitting every day. They are fitting in this work with other jobs. They are sometimes sitting once a week; sometimes once a fortnight; sometimes a whole week out of four, but not regularly as judges. It is essential, for justice to be done, for this particular clause to be incorporated within the Statute so that it is not just a fringe benefit which can be used or not used. In other words, without it justice in this sphere is very erratic; with it, there is a much better chance of equality of opportunity.
§ 4.16 p.m.
§ BARONESS WOOTTON OF ABINGER
At an earlier stage in the Committee's debates my noble and learned friend Lord Gardiner expressed pleasure that this is not really a Party controversial Bill. I hope therefore that he will forgive me if I express some doubts about this Amendment which stands in the name of the noble Baroness and the noble and learned Lords, Lord Stow Hill and Lord Gardiner. For that purpose, I propose to follow the model that was used so frequently last Friday by the noble Viscount, Lord Colville of Culross, in opposition to myself: that is to say, to begin by expressing profound agreement with the objectives of the proposal, and then to end up by saying that I do not think the means proposed are effectual.
Most of my noble friends' speeches have been devoted to showing what I entirely endorse: that a great many people are remanded in custody who ought to be on bail. In particular, a considerable number are remanded in custody who are subsequently acquitted, let alone not given custodial sentences; and some very impressive figures have been given about this. I entirely agree. But there is one fundamental difference, if I may call their attention to it, between their Amendment and Section 18 of the 1967 Act. I do not particularly like Section 18 of the 1967 Act—particularly some of the subsections of Section 5, the relevant section. But my noble friends' Amendments are entirely devoted to assessing what a person is likely to do, 1072 and they ask that the court should be satisfied upon sufficient evidence that the grant of bail to such person would be likely to involve a substantial risk—
and so forth. They give no kind of factual indication of what " sufficient evidence " would be. Their Amendment is entirely framed in terms of the judgment of the court on unspecified evidence. I do not like to say it, but after 44 years in the Metropolitan magistrates' courts I do not feel happy about leaving so wide open the judgment of the magistrates as to whether a person is likely to interfere with witnesses or somebody else's safety and so on. I would even go so far as to say that sometimes hasty judgments may be made on people's appearance and on other factors which are equally irrelevant.
- " (a) of interference with witnesses …
- (b) to the safety of any person …
- (c) to the security of property "—
The one merit of the 1967 Act is that it is nearly all expressed in terms of the past and not of the future. Magistrates are to give bail unless a person is charged with an offence punishable with imprisonment for not less than six months and it appears to the court that he has previously served a custodial sentence; unless he has previously failed to comply with the conditions of his bail; unless he is charged with an offence alleged to have been committed while released on bail. The words " likely to " are used only once, that is in paragraph (g), where it says " unless … he is likely to commit an offence ", which seems to leave the door pretty wide open.
These predictions are difficult to make, and I should like to refer, as I have done before in your Lordships' House, to the Manhattan bail system which is used in a number of American jurisdictions, in which bail is given on points for certain factors. Those points, I think I am right in saying, are all factual in nature; that is to say, they all refer to facts relating to the defendant, to his previous history, to his family circumstances, and so forth. I am anxious that we should improve Section 18, and I am sorry that I have not tabled an Amendment in an attempt to do so, because even some of the subsections in Section 18 are very vague—such as having no fixed abode. I think we must have a 1073 much more precise set of criteria than simply saying that the court on sufficient evidence makes its judgment as to whether or not a person " is likely to " do something. With all respect to my noble friends I am quite afraid that if this Amendment were written into the law not fewer but possibly even more people might be remanded in custody. I hope the noble Viscount will appreciate how I have imitated his model.
§ 4.23 p.m.
§ LORD WIDGERY
I am very concerned about the present bail system in this country and, like many other speakers, I feel that it does not sufficiently discriminate between those who ought to be on bail and those who ought to be in custody. I agree with my noble and learned friend Lord Gardiner, in supporting this Amendment, that the considerations on which the bail question ought to be determined are those set out in Clause 6, and many of us have for some time been encouraging the idea that these are the factors on which the decision should turn. But any efforts of mine have always been frustrated by the fact—which no Act of Parliament could cure—that when a bail decision is made there is usually only the most scanty information on these matters. My concern about the first Amendment is that it makes the grant of bail mandatory unless certain information is available—information which I venture to think will rarely be available at all.
Perhaps I may give your Lordships a homely, real life example from last week. I received a letter from a father who said that his son, a long-distance lorry driver, had been arrested for rape while on his journeys at some point about 200 miles from home. The father reported that the son had not been granted bail, and he wished me to do something about it. I made inquiries from the court to find out what had happened, and the simple circumstances were that a girl had complained of having been raped by a lorry driver who had given her a lift. She gave the police what she thought was the number of the vehicle and it agreed with the number of this man's vehicle. Accordingly, when he was stopped about 30 miles up the road and could not give a further account of himself, he was arrested; and within literally only a few hours he was before 1074 the magistrates for consideration for the first time.
Nobody knew anything about the offence, or about him, apart from the brief facts that I have recounted. Of course there was strong evidence of a serious offence, but, that said, there was absolutely nothing more to say, and the magistrates (I think entirely properly) remanded him in custody for a week until some inquiries could be made. I told the father that I thought the magistrates had acted properly, and eventually he agreed. There is, in a sense, a happy sequel in that when this young man appeared before the magistrates at the end of the first week he was granted bail, it having then been discovered that he had a respectable home and a settled background and his was a suitable case for bail. I have burdened your Lordships with that story merely to make the point that if this Amendment had been the law the magistrates would have been bound to grant that young man bail on his first appearance, only hours after his arrest and when no-one really knew whether or not he was a suitable candidate for it.
On a point made by the noble Baroness, Lady Wootton of Abinger, with regard to the phrase " sufficient evidence " I am concerned because, as I see it, this will not be a rather woolly phrase left for the magistrates' court to construe; it will be a phrase with which I shall become increasingly familiar, because if these words are incorporated in an Act of Parliament dealing with the liberty of the subject then they must be given their strict legal meaning. The courts must do that. If we can take the case of the lorry driver, if the magistrates had refused bail on the first occasion, the boy could have been represented by counsel before me in the Divisional Court of the Queen's Bench Division the next morning on an application for habeas corpus, with an absolute right to be released, because we should have said, " Where is the evidence that he is likely to interfere with witnesses? " The truth of the matter is that one never can get such evidence.
I invite the Committee to bear in mind that if language of this kind is used then, when the courts come to construe it, they will have to look for evidence in the strictly admissible sense, and I doubt very much whether in one case in ten there 1075 will be really hard evidence of an admissible character upon this issue. It seems to me that the result will be to open the gates of bail far too widely if one is to try to achieve a proper balance between the public interest and private liberty.
LORD DONALDSON or KINGS-BRIDGE
Before the noble and learned Lord sits down I should like to comment on the story of the lorry driver. It seems to me that what this Amendment says is that in the absence of evidence either way the man should be released. That was exactly the case with the lorry driver: there was no evidence either way and under the future law, if this Bill were amended in the way proposed he would have been released and as later evidence showed he would have turned up for trial. Is that not so?
§ LORD WIDGERY
In this case the man was a suitable candidate for bail as further inquiry disclosed, but on the first appearance nobody knew because there was a total absence of information one way or the other. One may ask onself what would the position have been supposing this had been a charge of murder and there had been an absence of positive evidence one way or the other. Again he would have had to be released. I seriously think that, on this Amendment, the man who shot the police inspector in Blackpool might have had at least an arguable case for bail.
§ THE EARL OF MANSFIELD
I should like to express an opinion on this Amendment; and I speak as one who has spent many weary hours in cold corridors alongside courts, debating with those who want bail the grounds on which an application can be made, and also debating with police officers who do not want people to have bail, the grounds upon which it would be right to resist it. May I say at once that no doubt it is repugnant to all your Lordships that anybody should be deprived of his liberty unless a court has found him guilty of an offence and judged that no other method of dealing with him is possible. But, having said that, I should like to enlarge upon something that the noble and learned Lord, the Lord Chief Justice, mentioned briefly, and that is the public interest. On the one hand one has the liberty of the individual to consider, and on the 1076 other hand one has the right of the public, where an offence has been committed, to have a trial, with the right people being tried, the right evidence being adduced at the trial and the right result coming at the end of the trial. If I may say so, there is a tendency to view each person who happens to be the subject of review by a court in isolation. I might facetiously call it the " Agatha Christie syndrome "; in other words, an offence has been committed, somebody has been arrested and they—and only they—ought to be considered by the court. In fact, very often an arrest of one person is hardly more than a skirmish in the war of crime. If the criteria in subsection (6) of this Amendment were to be adopted there is no doubt at all that the police would be gravely hampered in their inquiries.
May we take one case where there has been a conspiracy—and I scarcely dare mention the word in your Lordships' House. Let us say that the police manage to arrest one person on the fringe of the conspiracy and resist bail the next morning. If that person is to get his liberty there is no doubt that all the other conspirators will vanish with the morning mist. I cannot see any of the sub-paragraphs (a) to (e) meeting that particular situation, unless possibly the safety of any person or the security of property were to be stretched. But, if it is a conspiracy which has not yet been put into execution there cannot be any property which is going to be insecure.
The second matter I would bring to your Lordships' notice is the individual himself. Not very long ago I was asked at very short notice to make an application for bail for a young man who had been committed to the Central Criminal Court on a charge of rape. He had picked up a girl in a coffee bar, taken her to some waste ground, raped her and was arrested. She was a total stranger, I may say. He appeared before the magistrates' court, was given bail, and shortly afterwards did exactly the same thing: picked up another young girl who was a total stranger, raped her, and was once more arrested. By this time he had been committed for trial on the first charge and duly appeared at the Central Criminal Court. I asked him rather diffidently if there were any particular grounds why 1077 he wanted his freedom at that particular moment of time, as I felt the application might be resisted, and he said that he wanted to see his girl friend. He, too, does not come within paragraphs (a) to (e) and I suppose that the noble Lord, Lord Donaldson of Kingsbridge, would have said that he ought to have his liberty. I really wonder whether that is right. If this Amendment were to be accepted by your Lordships I would, to quote a phrase used against me last Monday by the noble Baroness, Lady Wootton of Abinger, say that that would be disastrous.
May I say that no distinction has been drawn this afternoon between summary proceedings and proceedings once the defendant has been committed for trial. Many of the objections to bail fall once somebody has been committed for trial because by that time the case for the Crown is on paper and everybody knows what it is. The defendant's mode of life and circumstances are also known to everybody and the conclusion can much more easily be made as to whether or not he is likely to turn up at his trial. If at some future moment of time some differentiation were to be made between a prisoner on remand in a lower court and a prisoner who had been committed for trial to a Crown Court, I would submit that that would be the moment when perhaps it would be much easier for a person in those circumstances to be let out on bail.
§ 4.34 p.m.
§ THE LORD CHANCELLOR
I am very glad that we have had a discussion upon this subject; certainly we have had a number of interesting speeches from all corners of the Committee. The Government regard the problem of bail with at least as much seriousness and earnestness as anybody who spoke in favour of the Amendment. They are at least as concerned as the noble and learned Lord opposite that there may be people refused bail who ought to get it. I thought that the noble and learned Lord was not perhaps fully aware that the two criticisms with which he said he was assailed when he was Lord Chancellor, namely, that some people were getting bail when they should not and that other people were not getting bail when they should are not necessarily mutually inconsistent. The fact is that both may be true. They will 1078 not be the same people or the same cases, but it is probably true that there are some people nowadays getting bail when they should not get it and some who are not getting bail when they should. As the Government are at least as concerned as anybody else to keep the number of people in prison down to a minimum, whether they are on remand or whether they are convicted criminals, I can assure the noble Lord, Lord Stow Hill, who proposed this Amendment with his usual lucidity, the noble and learned Lord and other noble Lords and Baronesses who have supported the Amendment, that we do regard this matter with at least as much seriousness as they do and with at least as much determination to get something done about it if we can.
May I say also, again following, like the noble Baroness, Lady Wootton of Abinger, the admirable model set by the noble Viscount who sits beside me on this Bench, that I do not know that if we were to spend some time in discussing individual cases and philosophies there would be very much between the supporters of the Amendment and those who criticised it. As the noble and learned Lord, Lord Gardiner, was good enough to remind the Committee, when I was spokesman in the House of Commons for Home Affairs in 1967 I made it clear that I was concerned about this matter, and I followed my concern a year ago by making rather a lengthy speech to the magistrates of Gloucester as to how they should exercise their powers under the existing law. Lord Chancellors do not recommend changes in the criminal law while they are in office, for reasons with which the noble and learned Lord is fully familiar. They tell people how to observe the existing law, and that is what I sought to do. I say that not out of any desire to glorify myself, but it did take about 35 minutes to set out the subject. That speech was fully reported in The Magistrate and The Justice of the Peace; it was very widely reported in the national Press, and favourably commented on by Opposition speakers in the House of Commons. I hope that it will be of some advantage to magistrates in discharging their duties.
In the course of that speech I pointed out, first of all, that the presumption was normally for bail, that it was a very serious thing to deprive a man who had 1079 not been convicted of anything of his liberty. Indeed, I went so far as to describe it as the solitary exception in time of peace to the provisions of Magna Carta—which follows very closely on what the noble and learned Lord was saying. I also told magistrates that I thought that they always ought to draw the attention of a person who might wish to have bail to his right to apply for it. Of course it would be a mockery to do so if he was already in prison for another offence; and I am sure that the noble Lord, Lord Stow Hill, would recognise that the words " every occasion " where they occur in his Amendment are really quite inapposite because there must be occasions when it would be quite inappropriate. But I did tell magistrates that they always ought to tell anybody who might conceivably get bail of his right to ask for it.
I went on to say—and I would like at this stage to repeat it, because we were a little hurried when my noble friend Lady Macleod put the question to me, for reasons for which neither of us was responsible—what I said to the magistrates about legal aid. One of the so-called " Widgery criteria " (from the well-known personage who was responsible for them) in granting legal aid is whether there is a real danger that the person not granted legal aid may be deprived of his personal liberty. One of those cases is obviously a case where he or she is charged with an offence in circumstances in which the magistrates are unlikely to grant bail, because if they are unlikely to grant bail it must be because they think the ultimate end following on conviction is likely to be a custodial sentence and the ultimate end is at least sufficiently probable to lead to a remand in custody. I therefore say to my noble friend Lady Macleod that where there is a serious objection to bail, the right course under the law as it stands, as distinct from what it may be when the Royal Assent is given to the Legal Advice and Assistance Bill, is to grant legal aid in the case. If they do that, then that will cover an application for bail.
In reply to her specific question as to the point at which it should be done, my answer is that it is the point at which the man's liberty is liable to be in serious jeopardy—that is, it may be earlier or later, as I propose to say at 1080 a later stage in my argument. It may be appropriate to grant bail early in the case and not to grant it later on; or conversely, as my noble friend Lord Mansfield pointed out, it may be appropriate not to grant it at the beginning—the case cited by the noble and learned Lord, the Lord Chief Justice, is a case in point—when shortly afterwards further inquiries make it appropriate that bail should be given at once on the man's own recognisance. The point at which legal aid is granted should be the point at which liberty is seriously in jeopardy and not before or later, so that the legal representation, when granted, can be given at the point at which the legal adviser can apply for bail without depriving the subject of his liberty. Under the new legislation it will be possible to appoint a solicitor in court ad hoc for this bail application, if there is not one in court, and that, I hope, will be convenient. I hope that it will also render it unnecessary to put into this Bill a special subsection about the granting of legal aid for bail because I think that by then we shall have covered the legal aid problem entirely.
It is also essential—I pointed this out to the magistrates a year ago—that if bail is refused after an application, magistrates should as a matter of practice always say to the man, " If you do not like our decision "—that is, if bail is refused or if conditions on bail have been imposed which he does not accept—" you can go to the Crown Court judge "—which is the easiest procedure now—" or to a judge in Chambers in London." That is the ultimate safeguard that his liberty is not taken away. Perhaps I might add in passing that the procedure before the Crown Court judge or the judge in Chambers in London is in many ways superior to that of the magistrates, because a very much more frank discussion is possible in Chambers about the considerations affecting bail than is possible in open court. It is very easy in open court for the police to let fall some fact about the man which might prejudice his trial when it takes place, but in Chambers of course that danger does not arise and therefore it is not necessarily a criticism of magistrates that they refuse bail in open court and it is subsequently granted without conditions by the Crown Court judge or judge in Chambers.
1081 I therefore wish to make it absolutely clear that I do not think there is a difference in philosophy in approaching this problem between those who criticise the Amendment and think that it would be a serious blemish on our law and those who support it. Indeed, my object in making these remarks is largely to persuade the noble Lord, Lord Stow Hill, that after the debate has been fully canvassed he may not feel it necessary to press his Amendment to a Division because if he did I should be driven to advise the Committee not to accept it.
So seriously did the Government regard the problem of bail when they assumed office that about a year ago, just before I made my speech to the magistrates in Gloucester, my right honourable friend the then Home Secretary set up a Working Party to discuss the whole question of bail. I need hardly say that after a year's work the Working Panty are getting near to completing their deliberations. One of the many reasons why I urge the Committee not to pursue this matter to-day is precisely because it would be anticipating the verdict of the Working Party and seeking to fossilise in an Act of Parliament a rigid series of criteria, which I am about to criticise as being very dangerous, at precisely the time when the Working Party will, I hope, give a constructive approach to various hopeful lines of development, some of which may require legislation—I cannot foretell or anticipate that—and some of which may be better done by administrative means.
As an example of what might require legislation, I draw the attention of the Committee to what I think the noble Lord, Lord Stow Hill, referred to in his opening remarks as the Report of the Howard League. I cannot claim to have read the document; the noble Lord said that it came out only yesterday. However, I know that what must be the substance of the Report was delivered by way of evidence to the Working Party some time ago. One of the suggestions—I do not think I am betraying confidences here—in the Howard League's evidence to the Working Party was precisely the points system to which the noble Baroness, Lady Wootton, referred; she called it the Manhattan bail system. This is, of course, an American system where- 1082 by objective criteria based on a kind of points system are applied by the courts, where the system is adopted. That would require legislation. I do not wish to anticipate whether or not it would be adopted by the Working Party. Indeed, I do not want to anticipate their findings. I do not know what they are or are likely to be, but obviously this issue would have to be considered carefully and it is clear that if it were an Amendment along these rather rigid lines would be an obstacle to further progress rather than an incentive towards it.
I apologise to your Lordships for making a rather long speech, but this is an important subject and I am anxious to deal with it as fully as I may. The first point I am making, therefore, regarding the Amendment on its merits, is that it would be anticipating the Working Party's Report. That Report is likely to include a number of administrative and perhaps legislative provisions and I would seriously ask the Committee not to anticipate the Report by committing itself to what I think is not a really workable alternative. The second point is that the noble and learned Lord, the Lord Chief Justice, in his usual polite and urbane manner, made it clear that for the reasons he gave the Amendment was not acceptable to the judicianry, and my noble friend Lord Mansfield, from his wide experience of the criminal Bar, gave some reasons for endorsing the opinion of the judiciary. I would ask the Committee not to accept an Amendment which run counter to that sort of opinion—that is, if there is no difference of philosophy behind their view. Obviously if Parliament wished to put forward a different philosophy from that of the Lord Chief Justice I would not put forward his view as conclusive, but this is largely a question of the practical working of the criminal law and the opinion of the profession and of the judiciary is something which should be taken into account.
One of the objections which the judiciary have—endorsed by my noble friend Lord Mansfield—is precisely that to which the noble Baroness, Lady Wootton, gave effect and which was illustrated very well in a particular case by the Lord Chief Justice. It is that in fact bail applications are not made on evidence in the usual sense at all. This 1083 is something which cannot and does not happen in the nature of things. The noble Lord, Lord Stow Hill, was somewhat uneasily aware that this was so and he frankly conceded at the outset of his remarks that this was, as he described it, a minor blemish of the Amendment. My judgment of the matter is—and it is the view of the Government—that this is not a minor blemish of the Amendment; it is, as the noble Baroness, Lady Wootton, appears to have considered, a fatal objection to it in its present form. The truth is—this is the fact which I am afraid Parliament must face about bail—that in the end the magistrates have got to have a discretion in order for bail to work at all, and that discretion is not based upon evidence but upon applying criteria. That is why I spoke for 35 minutes to the magistrates of Gloucester and did not simply law down, as it were, two tablets of Stone, as this Amendment appears to do, as to what should actuate magistrates and what should not.
The noble and learned Lord was good enough to refer to a speech of mine which I made during the passage of the Criminal Justice Bill about what is now Section 18 of the Criminal Justice Act 1967. I was critical of Section 18. In a moment I am going to explain why I think Section 18 with all its imperfections is far superior to what is now proposed and why I think what is now proposed is retrograde of what was done by Section 18 of the 1967 Act. The noble and learned Lord quoted one passage, and I want to quote a slightly preferable one, in which I said that the four criteria which are now in the Amendment, one of which was inserted after it was defeated in the House of Commons, were the only real reasons which commonly arise for refusing bail. In the House of Commons I pointed out that these were the only reasons which commonly arise. When you are going to put words into a Statute you must not confine yourself to what commonly arises but must deal with the whole conspectus of the case.
What I find unacceptable about this Amendment is precisely the attempt to codify that is undertaken by the section. If you are going to codify the law about bail, which the noble Lord, Lord Stow Hill, deliberately set out to do in the 1084 terms of his speech, you are, I think, in a terrible dilemma. Either you are going to use words which are so vague as to be useless or you are going to use words which are so precise as to be misleading. In the expression " sufficient evidence ", by a miracle of juxtaposition the Amendment achieves both at the same time. The word " sufficient " is wholly unsatisfactory because it tells you nothing, and the word " evidence " is wholly unsatisfactory because it is not upon evidence in the legal sense that the court in the end will make their decision. What is far more needed, in my opinion, at any rate in anticipation of the Working Party's Report, which may require legislation, is a more thorough understanding by magistrates of the philosophy of bail. I tried to bring that home to them in my speech at Gloucester, and I hope this debate will if my speech was insufficient. It may be possible for the Lord Chief Justice himself to issue a Practice Direction of some kind, and I do not want to exclude that possibility, but the idea of fossilising in Statute four or five criteria, when they are really not nearly so good as those enshrined in the Act of 1967, is one which I am bound to say I find unacceptable.
May I remind the Committee, and ask it to contrast, what was done in the Act of 1967 with what is proposed in the present Amendment. The Act of 1967 has, admittedly, limited application; it does not apply to all cases of bail, although I did venture to say to the Gloucester magistrates that they could do worse in considering bail applications than look at Section 18, even in cases where Section 18 does not apply; I think it is a useful guide even in cases where it does not apply. Subsection (1) of Section 18 in fact tells the magistrates that they must remand on bail as a general rule; in other words, it gives effect to the presumption of bail in a much more positive way than the Amendment would. In subsection (5) they are told what they ought to consider on a bail application. Its first paragraph is: Where the accused is charged with an offence punishable by the court with imprisonment for not less than six months and it appears that he has been previously sentenced to imprisonment or borstal; that is something that does not appear in the Amendment. It is an extremely useful lamp.
1085 The second paragraph is:where it appears to the court that, having been released on bail on any occasion, he has failed to comply with the conditions of any recognisance entered into by him on that occasion ".That is a very useful thing to bring to their attention, and in the Act of Parliament that will disappear from our Statute Law if the Amendment is passed. The next paragraph states:where he is charged with an offence alleged to have been committed while he was released on bail ".In many cases that is another absolutely decisive consideration on a bail application, wholly omitted from the present Amendment. Paragraph (d) is:where it appears to the court that it is necessary to detain him to establish his identity or address ".Again there is nothing of that in the Amendment. Paragraph (e) is:where it appears to the court that he has no fixed abode or that he is ordinarily resident outside the United Kingdom ".Of course, the Amendment says that one of the criteria is whether he may skip his bail, but how much more precise and how much more helpful to the court to have a positive, flat, objective test of this kind!
Paragraph (f) says:where the act or any of the acts constituting the offence with which he is charged consisted of an assault on or a threat of violence to another person, or of having or possessing a firearm, an imitation firearm, an explosive or an offensive weapon, or of indecent conduct with or towards a person under the age of sixteen years ".In contrast to that, all the Amendment does is to make a vague reference to the safety of property or the safety of person. I vastly prefer the law as it is, which it is proposed to do away with.
Paragraph (g) says:where it appears to the court that unless he is remanded or committed in custody he is likely to commit an offence ".That is, I think—and I happened to say in my speech in the House of Commons to which the noble Lord drew attention—probably the commonest case of all where in the end bail is refused. There is again a vague reference to the safety of person or property in the Amendment, but how much better it is to spell it out in black and white.
1086 The final paragraph (h) says:where it appears to the court necessary for his own protection to refuse to remand or commit him on bail ".That is, I think, in certain words in the Amendment itself.
There is another factor which must be borne in mind when you are discussing the question of bail. When a man is charged, for instance, with murder or any of the very grave offences against the State, he is normally not given bail. The presumption is not in favour of bail, or rather the presumption in favour of bail, which there is, is overridden by the gravity of the offence. It is practically unheard of to give bail in such cases. I wonder in how many such cases bail would be necessary under the present Amendment.
Then again there are cases when the man is already in prison, when bail could never be given. There are cases where, alas! he has nowhere to go, when bail is not often given if the offence is a serious one. Then again in this attempt to codify bail—my noble friend Lord Mansfield referred to it in his speech, but I should like to refer to it myself—there is no proper differentiation between the different types of application to which different criteria apply, although it may well be that the philosophy underlying the granting of bail may be the same. My noble friend Lord Mansfield referred to the case where at different stages of the proceedings bail may be given which was once refused, or refused where it was once given. But I would draw the attention of the Committee to the fact that we get three separate occasions when bail is asked for: first, before conviction or the outcome of the trial; second, bail is asked for after a conviction if magistrates remand under Section 29 (if that is the right section) for sentence to the Crown Court, and when there is no presumption in favour of bail because, of course, the magistrates have remanded because they have found the man guilty of an offence and have decided that their own jurisdiction for custodial sentence is insufficient to deal with the man.
Finally, there is the application of bail after conviction and pending appeal. This again demands a quite different set of criteria. Where the custodial sentence is a short one the presumption in favour of bail is much stronger because it defeats the object of the appeal by not granting bail; 1087 a certain period of time will elapse between conviction and sentence and appeal, and if he has been in prison for three months during that period of time the object of the appeal is defeated before it is heard. Therefore the presumption is much more strongly in favour of bail. If, on the other hand, a man is convicted on overwhelming evidence and appeals against sentence on, say, a prison sentence of ten years, the presumption against bail is almost equally as strong. None of this has really been gone into in depth by the Amendment. I say with great respect to those who put the Amendment forward—I remember with great satisfaction the warm friendship which developed between me and Mr. Silkin on the Criminal Justice Bill as it was then, in 1967, and no one exceeds me in my admiration of the various noble Lords and noble Baronesses who have supported the Amendment—that in my opinion it is not really a workmanlike job.
Therefore on those three grounds: one, that it pre-empts the bail working party; two, that it is opposed by the judiciary and, I think, the bulk of the profession practising in the criminal courts—on grounds which the Lord Chief Justice has endeavoured to anticipate it will give rise to an extarordinary number of difficult habeas corpus proceedings; I have gone into this, I fear, at inordinate length but I hope not too dully, but it really does not match up to the criteria of good legislation on this subject—I beg those who propose the Amendment, and whose contribution to the philosophy of the subject I warmly welcome, not to press it to a Division this afternoon.
§ 5.3 p.m.
§ LORD GARDINER
Before my noble friend Lord Stow Hill replies to the debate, may I say that there is not, as I understand it, much difference of opinion that it would be desirable that the law as to the principles on which bail should be granted or refused should be put into writing. In 1967 the noble and learned Lord the Lord Chancellor was certainly strongly of that view. He said then that they, meaning the magistrates, ought to be told in the Statute what ought to govern their decisions. I have stated that now three times and I will not state it again. As to whether these are principles, the criticism made has not been that these are not the principles but the 1088 way in which the methods of enforcement have been dealt with. The noble and learned Lord the Lord Chancellor, speaking to the Magistrates' Association said—and this is one of the points on which I understand there is no real dispute—When a prisoner is on remand magistrates should always make it their business to be certain that the defendant is aware of his right to ask for bail and, where bail is refused, of his right to have further resource to a judge".I was a little surprised this afternoon to hear the noble and learned Lord the Lord Chancellor say what he had to say on the 1967 Bill (as it then was); because at that time he did not like it at all. He said:My fear "—and I understood it to be echoed by the honourable and learned Member for Dulwich, Mr. Silkin—is that this clause, looked at as a piece of English at which the magistrates will have to look, will divert the magistrates' attention from the right points and attract their attention to the wrong points.So the noble Lord did not at that time regard that Bill as favourable, as he apparently does now. He continued:It seemed to me that the honourable and learned Member for Dulwich had the right answer "—that was to put what the law is into the Bill. He went on:They ought to be told in the Statute what ought to govern their decisions ".As to the way in which it has been expressed in the Amendment which was similar to the one considered in the other place, the Minister of State said, at col. 655 of the OFFICIAL REPORT for June 7:No hon. Member wishes to see people being unnecessarily remanded in custody and of course I accept, as I said in Committee and as my hon. Friend said when answering a recent Adjournment debate, and the Home Office accepts, that bail should always be granted in appropriate cases. I go further and say that I do not believe that anybody seriously disputes the principle set out in the proposed new Clause as the basis or grounds on which the question of bail or custody should be judged ".—[OFFICIAL REPORT, Commons, 7/6/72; col. 655.]I hope very much that, if that is so, and if we accept that the principles applying to bail ought to be set out in the statute, any defects in the wording of this Amendment, relating to judgment of evidence and so forth, may be considered 1089 between now and the next stage of the Bill. It is not enough to tell someone that he can go to the Crown Court or to a Judge in Chambers when he has no legal aid and cannot afford it. I remain seriously concerned that people who are innocent, or who are simply going to have a small fine imposed on them, should spend perhaps two months in prison. It may be that they are then acquitted, but what is the good of that to them? They have lost their jobs; they have lost their incomes; their hire-purchase instalments have not been paid; their goods have been seized and their family life may have been broken up.
With great respect to the noble and learned Lord the Lord Chief Justice, no one has really put forward any suggestion that would enable us to reduce those very large numbers. Perhaps we could all consider the matter, if my noble friend Lord Stow Hill agrees, before the next stage of the Bill, with a view to seeing whether it is not desirable that the law as to bail should be stated in the Bill, so that the justices can read it and should not be dependant solely on whether they have accurately remembered what the noble Lord, the Lord Chancellor said to a meeting of magistrates.
§ LORD DONALDSON OF KINGS-BRIDGE
Before the noble Lord replies, I should like to say a quick word on the subject. I came in uncertain as to whether this Amendment would do. The noble and learned Lord the Lord Chancellor, when about halfway through—in his own words—long but not at all dull disposition, had more or less convinced me that it would not do. But, as so often happens with advocates, he turned from the judicial to the advocate, and in his denunciation of the Amendment seemed to extol the existing situation in a way which was clearly quite unreasonable. I want to re-emphasise what my noble and learned friend Lord Gardiner said: that there are serious injustices going on every day, to the extent of at least 2,000 a year—and the figure is probably nearer 20,000. I am prepared to be advised to reject the Amendment if my noble friend agrees, and am prepared to accept that this is the right thing. But where are we then left? Is it really to be nowhere? Can we be told that the Government will pursue this 1090 urgently? We have already been told that they accept the existence of injustice. Can we therefore be given some hope that something concrete will be done if this Amendment is withdrawn?
§ THE LORD CHANCELLOR
I thought I had made that abundantly plain by the fact that 12 months ago a Working Party had been set up which has gone a long way towards doing something. What I was asking the Committee to accept is that, although this is an important, and even, up to a point, urgent, subject for consideration, it may be better not to pre-empt the Working Party but to take the problem and deal with it wholeheartedly when we know what they have said.
§ LORD CHORLEY
I think that there is a lot to be said for waiting for the Working Party. A great deal has been written and said about this subject, but I do not think there is what one might call a decisive document about it. The only matter that worries me is that if the Working Party do not report for some time, we shall have missed the opportunity of doing something in this Bill. Can the noble and learned Lord assure us that a Bill will be produced before very long? It is quite clear that the situation is on the verge of being an intolerable one. Anybody who has practised in the criminal courts, either as an advocate or a judge, realises that that is so. What we do not want is to miss the opportunity of getting something done at an early stage. I should be grateful if the noble and learned Lord could deal with this particular aspect.
§ THE LORD CHANCELLOR
I cannot give a date this afternoon, but I will see that what the noble and learned Lord and other noble Lords have said about the importance of an early report is brought to the attention of the Working Party, who I understand, are making good progress.
§ LORD STOW HILL
I think we shall all agree that we have had an extremely valuable debate on this critically important subject. I am most indebted to the noble and learned Lord the Lord Chancellor for his very important and interesting statement and analysis both of the Amendment and of the general position of the problem with which we are all faced. Obviously, a very important 1091 feature of the situation is the fact that in due course we shall receive a report from the Working Party that has been specifically examining this problem. I think we must all have been impressed by what the noble and learned Lord the Lord Chief Justice said, from his practical experience, as of course we have by what other noble Lords have said from their own personal contacts with these matters.
Speaking for myself, as the mover of the Amendment, I am quite convinced that your Lordships ought to allow me to withdraw the Amendment, in order that we can think about it again, and either revert to it in the course of the proceedings on this Bill or, if the Working Party's report is still not available, at some later stage on another Bill. Mine is only one of three names on the Amendment, and I cannot speak for my noble and learned friend and my noble friend Lady Birk. Whether they would ask leave to withdraw the Amendment I do not know. Speaking for myself, I would ask leave to withdraw the Amendment. If they are agreeable—and I rather thought from what my noble and learned friend Lord Gardiner said that he would wish to take that course—I will ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.14 p.m.
LORD GARDINER moved Amendment No. 34:
After Clause 23 insert the following new clause:
§ Right of defendant to make representation before sentence is passed
§ " . Whenever, after a plea of guilty, a defendant appears before a court for sentencing, or whenever he is committed for sentencing to a crown court after being tried and found guilty in a magistrates' court, he shall, irrespective of whether or not he is legally represented, be invited to make his own comments or representation to the court before sentence is passed."
§ The noble and learned Lord said: This Amendment is put down merely for discussion. It is based entirely on what a number of magistrates have told me; namely, that they find it unsatisfactory that so often they have to decide whether, on the one hand, to put somebody on probation or, on the other, send him to prison, when they have never heard him open his mouth. He may be represented 1092 by counsel, but if he pleads " guilty " that fact does not change the position. The chairman says to counsel, " Have you read the social report? " He replies, " Yes ". Then the magistrate says, " Have you got any comments on it? " And the answer often is " No ". It may turn out afterwards that there are matters contained in it which are inaccurate, and the man never has the opportunity of dealing with them himself. Many courts now do ask—even if the accused is represented—whether he has anything to say; they encourage him to open his mouth. Once he says something you have at least some idea of what the individual before you is like as a person, which may be different from the idea you would have had if he had never opened his mouth at all. Whether this is a good suggestion or not, not being a justice of the peace myself, I do not know. This is a suggestion to me by a number of justices. I have known of justices who have persuaded their own chairman to try to get the accused just to open his mouth, so that before they came to a decision they at least have heard him say something. For the purpose of opening this discussion, I beg to move this Amendment.
§ BARONESS WOOTTON OF ABINGER
Naturally I am very happy to be re-united on the side of my noble and learned friend Lord Gardiner. This is a very simple Amendment. There are two cases involved; there is the case in which the defendant is not represented, and there is the case in which he is represented. In cases when the defendant is not represented I would think that no argument can be used against this Amendment. In a great many courts it is customary—certainly it was always customary in the courts over which I presided—before passing sentence simply to say, " Is there anything you would like to say before we decide on the penalty? " Sometimes an articulate reply was received, sometimes a rather inarticulate reply, and sometimes, " No, nothing ".
In the case in which the defendant is represented it might be thought a little discourteous to the counsel or solicitor who represents him in the magistrates' court to put that question to the defendant; but I do not in fact believe that that is felt to be so. Very often the defendant would say, " Well, I don't know. I would like this gentleman to 1093 say something for me." This is certainly not being discourteous to his representative. If he tries to say something in his own words, his counsel or the solicitor who represents him are always quite willing to hear it, and very often if it is not sufficiently articulate will supplement it in a way which is helpful. That seems to me to be a necessary precaution to take. Sometimes things come out which, if there has not been a social inquiry report, may be very important: such as that the man has an invalid wife who needs constant attendance, and he hopes that it will be possible for him to be left with his freedom so that he can continue with the services she so much needs.
§ THE LORD CHANCELLOR
I am grateful to the noble and learned Lord for raising this discussion, which is an interesting one, and also to the noble Baroness for her commentary upon it. I do not think that this is confined to magistrates' courts. My reading of the Amendment is that it would apply to any court. I would make one or two comments upon it. Viewed as applicable to any court, I do not think that it is good enough if the defendant is encouraged simply to make his comments at this particular stage. To put in a section asking for his comments at this particular stage I should think would probably be misleading to some courts—particularly magistrates' courts—who might think this was the only stage at which they have to do it.
It is absolutely vital that an unrepresented defendant should be reminded again and again of his right to participate in the proceedings. After every witness has been examined he ought to be given the right to cross-examine; and it should not be assumed that he either knows that he has a right to cross-examine or that he knows what cross-examination is. Again and again he ought to be given the opportunity to call evidence. He ought, for instance, after conviction, to be asked in terms whether he has any witnesses who may want to give evidence as to character, or as to mitigating circumstances which were not relevant, perhaps not even appropriate, at the earlier stage of the proceedings. The magistrates ought, and the court ought, if he is not represented, to give him a chance of conducting his case properly, and to give him enough general 1094 guidance to enable him to do it—so far as he can conduct his case properly—either by making comments, by calling witnesses or by cross-examining.
On the other hand, I must say that I take a rather different view when a person is represented. Speaking of what is now the Crown Court, there used to be something in felony called the allocutus, under which, in a sort of vestigial way, the court was compelled to ask a convicted defendant whether there was anything he wished to say why judgment should not be passed upon him according to law. This was only a sort of vestigial organ, and it was done away with by the Criminal Law Act 1967. But the defendant was not really allowed to say anything. It was the opportunity at which he used to plead for benefit of clergy, and he was allowed to move for arrest of judgment which was an obsolete form of proceeding—
§ LORD CHORLEY
I think it applied only to felony, and when felony disappeared it disappeared with it. Is that not right.
§ THE LORD CHANCELLOR
Yes. That is what I said. It applied to felony and I think the noble Lord will see that I said that. But I am speaking only as somebody who sometimes defended in those circumstances. One turned round in an agony and, in a whisper which one only hoped was not heard by everybody in court, said, " For goodness' sake!, don't say anything "—because one of the very few things one can do for a poor fellow who is convicted of a serious crime is not to allow him to say anything which might aggravate the penalty. The purpose of having counsel and solicitors to represent an accused person is just as much to suppress what is unhelpful to him, and to prevent him from saying something idiotic, as to say something helpful to him. To propose an Amendment like this, which brings back the old allocutus in a new and more terrible form than it has ever existed before, would be an absolute horror for any practising advocate in the courts and I ask that that should not be done. My own view, after this very interesting and worthwhile discussion, it that I personally would not support the Amendment.
§ BARONESS WOOTTON OF ABINGER
As regards the first of the observations 1095 of the noble and learned Lord the Lord Chancellor, on the defendant's right to give evidence, to call witnesses and so forth, I should have thought that every court in the country was well aware of that right and observed the requirements, and that any magistrates' court which looked like not doing so would be pulled up at once by its clerk. This Amendment is intended to fill the gap that there is no corresponding obligation to ask a defendant whether he wishes to say anything before sentence is passed. I do not know what my noble and learned friend Lord Gardiner thinks, but I should be quite happy to have this obligation written into the law and to rely upon the not-so-quiet stage whispers which the noble and learned Lord the Lord Chancellor was accustomed to address to his clients in a previous incarnation. I am sure that the stage whispers would still go on and that suppression would still take place in suitable circumstances. Indeed, if an unrepresented defendant looked like saying something unfortunate, magistrates themselves are in the habit of saying, " That is not relevant; we do not want to know about that ". So I think that such a situation could be dealt with.
§ LORD GARDINER
I am grateful to the noble and learned Lord the Lord Chancellor for the consideration which he has been good enough to give to this question. I shall read with great interest the Report of what he has said, and will give it further consideration. Meanwhile, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.25 p.m.
LORD WELLS-PESTELL moved Amendment No. 35:
After Clause 23 insert the following new clause:
§ Duties of Probation Officers
§ " . Before appointing a day for the coming into force of section 11, 14 or 19 of this Act, the Secretary of State shall consult with such bodies and organisations, including those representative of probation officers and of probation and after-care committees, as appear to him to be desirable, and shall certify that in his opinion the number and distribution of probation officers are adequate for the performance of their functions and of any additional functions which by virtue of the said sections they will be required to perform."1096
§ The noble Lord said: I do not think there is any need for me to keep the Committee for long in moving this Amendment, for I feel sure that the noble Viscount knows almost word for word what has been said about it in another place. But that has not influenced either myself or my noble friend Lord Donaldson of Kingsbridge in putting down this Amendment, because we feel that it is essential. Having regard to the nature of the Amendment. May I make it perfectly clear that the Probation Service wishes to see the implementation of Clauses 11, 14 and 19, and the last thing that my friends in the Probation Service want to do is to hold this up in any way. Your Lordships will remember that Clause 11 enables courts, if they so desire, to attach a supervision order to suspended sentences; Clause 14 deals with the making of community service orders, and Clause 19 deals with probation orders where there is a requirement to attend a day training centre.
§ I think it will be generally agreed—and I know that the noble Viscount's honourable friend in another place has made it perfectly clear—that these clauses will place additional burdens on the Probation Service. I may be wrong in giving a figure, but I believe I am right in saying that it has been estimated that there could be as many as 5,000 suspended sentences carrying supervision orders. It may well be that many courts will not make supervision orders, but there will be a large number of suspended sentences which carry them. I do not want to go over ground which I covered some time ago, but I would remind the noble Viscount the Minister of the difficulties in which we find ourselves at the present moment with the working of the Children and Young Persons Act 1969. Under that Act, Parliament brought in a whole series of measures which cannot be implemented because the community homes are not yet in being. I do not think I am exaggerating the situation when I say that there is a good deal of chaos and confusion as a result. That is a situation which this Amendment seeks to prevent.
The noble Viscount's honourable friend said in another place on February 8, 1972:
The scheme will be the responsibility of the Probation Service"—
he was talking about the community service orders—
and the responsibility for organisation will rest with the Probation Service.
He went on to say, on February 10, 1972:
The idea is to provide a much more intensive degree of supervision under probation "—
he was referring there to the day attendance centres—
whereby as well as the ordinary requirements of probation
they would be required to attend for so many days. Of course the Probation Service wishes to see the suggestions in the clauses carried out, but one must remember that the Probation Service already has a number of duties. I think I am right in saying that there are something like 23 statutory duties which a probation officer must undertake, if required to do so. Concerning the question of staffing, we have gone over the ground many times, and I know that the noble Viscount's right honourable friend in another place, as well as the noble Viscount himself, has said what the Government intend to do in the matter of staffing. But I pointed out in your Lordships' House not so very long ago that in one probation area, the Inner London area, they are no fewer than 55 full-time officers short, and this is really very considerable when the total establishment is only 402. But if this is implemented without consultation with the Probation Service and others, we may find that we are again introducing things that it is quite impossible to carry out, and I think this would be an unhappy situation.
§ In carrying out these duties, it is not so much having the requisite number of personnel. What is terribly important, if I may presume to say so, is to have experienced personnel; and there is a great deal of anxiety in the Probation Service at the moment at the number of direct entrants into the service—people who are brought in without any experience at all. In the past, I do not think that the Home Office has faced up to the responsibility of training them as quickly as they should have done. Having said that, I ought to say that there has been a good deal of speeding-up in recent months, and I believe that many of the direct entrants, probably the 1098 majority, are now undergoing training. But in the last analysis, to make the provisions of this Bill really work it is not just a question of numbers, though numbers are important. What is really important is that the people who are to undertake these responsibilities should be experienced and trained probation officers. All I am asking the noble Viscount to say is that before these three clauses—Clauses 11, 14 and 19—are implemented, there should be discussion with the Probation Service and the Home Office and various other bodies, because, if I may say so, the success of this will depend to perhaps an even greater extent on the voluntary organisations. I do not want to mention those organisations, because I hope my noble friend Lord Donaldson will say something about their contribution. But this must be organised; it has got to be ready, so that when these clauses come into effect the personnel are there to undertake the duties envisaged in the Bill. I beg to move.
§ LORD DONALDSON OF KINGS-BRIDGE
I want to support my noble friend briefly but wholeheartedly. This Bill is an improvement on the 1967 Act in that in the provisions for dealing with what is technically known as the regular drunk it was laid down in the 1967 Act that magistrates could not do this until facilities were made available. We are still waiting for them, and that is now five years ago. On the other hand, this Bill lays down and makes financial provision for five experimental community service order centres and four clay training centres (or the other way round; I cannot remember); and these experiments will be operated and watched, and the lessons learnt. So something is going to happen, anyway, and for this I am extremely grateful.
Suppose these experiments are successful. The day training centres alone visualises three probation officers dealing with its throughput. Suppose you have, as I suppose you should have, three or four such centres per county, which I think would be the sort of number. I do not know what the noble Viscount has in mind, but if you were to have two per county, with 50 counties that would be 300 probation officers. So that if these experiments are going to be successful—and we hope they are—there is going 1099 to be a much larger requirement of trained probation officers than it seems to me at the moment any provision is made for, and what we are asking here is that you should march step by step with the Probation Service and see that you do not go faster than you can. This, of course, is coupled with a plea that you should at least go as fast as you can, which is the other side of the coin.
The only other thing I wanted to add—and as I have added it so often in your Lordships' House I will not take very long—is what my noble friend referred to, that not only probation officers are concerned. There are all the things which go with probation officers. In the case of a good probation and aftercare committee there may be 20 or 30 volunteers, and sometimes up to 40 or 50 in the big conurbations, working under the Probation Service. This involves a good deal of supervision; it involves a good deal of clerical work; and it involves getting money for their journeys to different places. It really is quite an addition to the probation officers' work; and, in addition, it takes up a certain amount of room. A good many probation offices, as the noble and learned Lord knows very well, are already rather pokey, and the better use we make of them the pokier they will become. This is part of what we are asking for. We are asking for a major step forward, which this Bill makes possible, but we are asking the noble and learned Lord not to hide, on the one hand, behind the difficulty in recruiting probation officers and, on the other hand, not to run so fast that the probation officers he has cannot keep up with him. This is not exactly a probing Amendment, but you might say that it is a warning Amendment, and I am very happy to support it.
§ LORD HAMILTON OF DALZELL
I support the motives of this Amendment, but I see difficulties about the Amendment itself. In supporting the motives of the Amendment, I do not wish in any way to detract from my gratitude to the Government for the very full consultations which they had with the Probation Service in the preparation of this Bill—consultations which led to very satisfac 1100 tory results from their point of view. Nor do I wish to suggest that there is any reason to suppose that future consultations about the way in which the Bill should be implemented will be any less full or their outcome any less satisfactory. But while all this is now accepted, I think, by those who have followed the proceedings of this Bill both in the Commons and in your Lordships' House, none of it is immediately apparent to anyone who studies the Bill for the first time and who knows no more about the Bill than appears in it.
It is quite true that in Clause 14(2)(a) the Bill lays down that a court shall not make a community service order unless and until it has been notified that facilities exist; and the same thing appears in Clause 19(2)(a) in relation to day training centres; while in Clause 11(1) the term of a suspended sentence with which supervision may be combined is deliberately set at such a level that this provision cannot be used in magistrates' courts at least for the time being. All these things have been done in order to help the Probation Service, but none of these things springs to the eye of anyone reading the Bill for the first time. I recently came across a senior probation officer and a magistrate discussing this Bill, and both were aghast at what it appeared to involve. I was happily able to reassure them; but not all groups of probation officers and magistrates who are discussing the Bill will have somebody at hand to do that. I know that on Friday the noble Viscount told us about the explanatory circulars which will be sent out with the Bill, and I have no doubt that he will be referring to them again to-day. But not everyone reading the Bill (or the Act, as it will then be) for the first time will necessarily be collating the circulars with the Bill as they go along.
The snag to this Amendment seems to me to be that it suggests that there should be more consultation before appointing a day for the coming into force of the Bill at all. The Probation Service, however, have already agreed to the experiments that are to be made in community service orders and in day training centres, and they have already agreed to the suspended sentence supervision order in the limited form in which it is initially proposed. So I do not think that the Probation Service would wish to 1101 oblige the Government to have any more consultations before the Bill is implemented in any way; and that seems to me to be a defect in this Amendment. In spite of that, what I think is wanted is something in the body of the Bill which makes it clear that the implementation of the Bill will be a gradual process, adjusted to the capacity of the Probation Service to cope with its requirements as it goes along.
§ VISCOUNT AMORY
I have been listening only in fairly short spasms to the debate on the Committee stage but I think that almost every such spasm has envisaged throwing greater burdens on the Probation Service. That, in my opinion as a layman, is not a defect of the Bill; I think it is a very good thing indeed. To a layman the history of the Probation Service has been an extremely encouraging one. I should like to ask my noble and learned friend this question: is he satisfied if that is so (and I think it is, and I welcome it personally) that the Government are planning, boldly enough for the future of this service; let us say for greater numbers without any reduction in the high quality on which that future depends?
VISCOUNT COLVILLE OF CULROSS
On the last point, it may well be that my noble friend Lord Amory was not here during one of the spasms when I outlined what were the plans of the Government in terms of recruiting and training. The figure we are at present aiming for—
§ VISCOUNT AMORY
Perhaps it might save time if my noble friend were good enough to refer me to that great speech. I will look it up and read every word of it. If he is not able to do that I shall be delighted to hear him make it a second time.
VISCOUNT COLVILLE OF CULROSS
One of the things that I have foresworn is the re-reading of my speeches on the Committee stage. Therefore I cannot give an accurate reference; but I think the Committee will remember that 4,700 was the figure we were aiming for. I hope it will be more. That is the figure which is official at the moment, and I hope that we shall be able to go further. We have greatly stepped up the training courses concomitant with that. I was glad to hear the noble Lord, Lord Wells-Pestell, commend us on the training.
§ VISCOUNT AMORY
The particular spasm is alive in my memory. I remember every word of it. I am sorry to have intervened.
VISCOUNT COLVILLE OF CULROSS
I am grateful to my noble friend. As I have said before, if there is one thing in relation to this Bill of which I am well aware, it is that there have been occasions in the past—and the community homes and particularly the secure community homes under the Children and Young Persons Act is a case in point and perhaps the alcoholics to which the noble Lord, Lord Donaldson, referred—which have shown that there is no use (and the Government, I trust, can learn from past mistakes) in introducing experiments and then leaving them to lie about unimplemented, or turning the Judiciary (and others who have to cope) loose with the experiment with no material to work on, no premises and no staff. There is chaos. I trust that in the course of the speeches I have made on this Bill I have convinced the Committee that the Government are very well aware of that.
To show how consistent I am on this, I was looking through the list of Amendments to which I have objected. I objected to Amendment No. 9 of the noble Lord, Lord Wells-Pestell, where we should need to have a compulsory social inquiry report in certain cases. Taken with that was Amendment No. 11 which the noble Lord did not move (we discussed the Amendments together) where there was to be a social inquiry report for short sentences. I objected to that. I said that the load on the Probation Service would be too great. We went on; and later there was the whole question, under Amendment No. 23, of a deferred sentence supervision order. There were other objections to that; but one of the objections that I raised was the load on the Probation Service. Throughout this Bill I have been absolutely consistent, speaking from here, in saying that we must keep the experiments in this Bill within the ability of the Probation Service to cope with them. Therefore I should have thought that I had demonstrated beyond any possible doubt that Her Majesty's Government are well aware of the problem that worries the noble Lord, Lord Wells-Pestell, and others. Of course, we know that this is so.
1103 The question is whether we need to write this into the Bill. The noble Lord, Lord Hamilton of Dalzell, spoiled my fun because he quoted all the safeguards that are already written in the Bill. I am sorry that they are not all together in one place, but I think it more suitable that they should be interspersed with the particular provisions to which they relate. If we look carefully at the proposed new clause, it will be seen that we should not be able to go very far before bringing in Clauses 14 and 19; because if we did, we should not be able to start the experiment at all. The noble Lord, Lord Hamilton of Dalzell, pointed out that the availability of community service and the training centres will be controlled, petty sessional division by petty sessional division, by my right honourable friend the Secretary of State notifying individual courts that these facilities are not available. In order to get them available we need the power in the Bill and we will need (and will continue to have) detailed discussions with the individual Probation and After-care Services, first in the trial areas and then spread across the country.
Do not think that, as the noble Lord, Lord Hamilton of Dalzell, said, it is central concentration that is now needed. What we need is local consultation in each county or each probation area so that before we notify the magistrates' courts and other courts that these facilities are available we have the Probation Service and the volunteers—and I take the noble Lord's point—with us; and that we are sure that the facilities are available and waiting for the court to use. That is what we propose to do. We do not propose to introduce them wholesale except in the case of Clause 11 where we have, in effect, already restricted the powers (as again the noble Lord, Lord Hamilton of Dalzell, said) to the higher courts. Again, my right honourable friend the Home Secretary has the power to reduce the threshold, as it were, of the use of Clause 11 as and when the Probation Service can take the load.
All these things are already in the Bill. The Government are in complete control of the situation under the Statute as drafted. I promise noble Lords that we are not going to try to run before 1104 we walk; but, equally, if we are going to get any sort of experiment going at all, I believe we need to get on now with the trials (the four and the five to which the noble Lord, Lord Donaldson of Kingsbridge, referred) to get them worked out in detail and to get them in operation so as to assess them. This means bringing in these powers at once.
Of course, the courts concerned will be restricted under Clauses 14(2)(a) and 19(2)(a) so that there will be very few who can use them. What is the point of having centres if we cannot allow the courts to send offenders to them? I submit that we have really covered not only the spirit but the substance of this Amendment with what is already in the Bill. I hope that I have been able to satisfy noble Lords accordingly.
§ LORD WELLS-PESTELL
I am grateful to the noble Viscount for his very clear reply. In case there has been any misunderstanding, I may say that my noble friend Lord Donaldson of Kings-bridge and I knew exactly what was in the Bill and exactly what was said by the noble Lord, Lord Hamilton of Dalzell. We wanted the noble Viscount to spell it out in a very definite way, in no uncertain way. He has done precisely that. I am sure that it meets our requirements and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.50 p.m.
BARONESS BIRK moved Amendment No. 36A:
After Clause 23 insert the following new clause:
§ Abolition of common law conspiracy
§ " .—(1) Notwithstanding any rule of law or practice to the contrary no offence shall be committed by any person in agreeing or conspiring with another or others to do or not to do anything whatosever unless:
- (a) it is an offence by virtue of any enactment or at common law to do or not to do that thing; or
- (b) it is an offence by virtue of any enactment so to agree or to conspire."
§ The noble Baroness said: In moving this Amendment I should like leave of the Committee to speak also to Amendments Nos. 37 and 38 as they are all interconnected. While I am not a lawyer, and therefore in some ways am less inhibited to jump where many lawyers 1105 would fear to tread, this is a very complex and nerve-racking subject. However, I do not accept the view that it is a matter which is the province only of legal experts. Naturally I cannot pretend to set myself up as a Parliamentary draftsman, and therefore I am sure there are many holes in the drafting of which I am not aware, although there are some of which I am aware. What I am concerned with in discussing this subject is the freedom of the individual, and how far that freedom and what I consider to be our great concept of justice are being adversely affected by the present state of the law on conspiracy; also the offences of public mischief and corrupting public morals, which bring uncertainty into the law and leave it much too much to the subjective judgment of judges and juries.
§ The recent case of It, which was concerned with the use of the offence of conspiracy to corrupt public morals in a prosecution dealing with publishing advertisements aimed at homosexuals, has highlighted the iniquities of one aspect of conspiracy as it now stands. In doing so it has, in my opinion, highlighted the urgent need for Parliament to take speedy action; for it is surely Parliament which must decide the limits of the sanctions of the criminal law and Parliament alone which should be and can be the custodian of our liberties and the guardian of the rights of the individual. This is why I feel that this is something which concerns us all and should not be, as has been mentioned in another connection, a lawyer's picnic.
§ My noble and learned friend Lord Gardiner, who will later move Amendment No. 39, has specifically limited his new clause to the subject of—to use a time-saving shorthand—the Levin-Rawlinson controversy, which makes it narrower than my Amendments since his restricts criminal conspiracies only so far as they fall within the obscenity area, while I am aware that my Amendments go much further. But since we do not know where the judicial knife may strike next I have ambitiously tried to cover the principles inherent in this whole unsatisfactory area of the law. This Bill seems to be the right place to put it in. In fact, there is not any alternative at the moment.1106
The law on conspiracy has been one of the most criticised aspects of the criminal law for a considerable time. The leading American writer on the subject, Professor Sayre, writing in The Harvard Law Review in 1921, in a celebrated article, said:
A doctrine so vague in its outlines and uncertain in its fundamental nature as criminal conspiracy lends no strength or glory to the law; it is a veritable quicksand of shifting opinion and ill-considered thought.
More recently the noble and learned judge, Lord Diplock, described the conspiracy in a House of Lords case of Bhagwan as
the least systematic, the most irrational branch of English penal law ".
It seems to me, without bringing out any other sources, that this state is unsatisfactory.
§ A Working Party on the subject from the Law Commission is expected, I understand, in the not too distant future. However, it is now seven years since the Commission pointed to the need to examine and reform this area of the law. Even when it has reported, if one goes by what has happened in the past and the piling up of legislation, both legal and otherwise, action is bound to be slow to follow. It took Jacob seven years to attain his first wife and another seven years before he obtained a wife of his choice. Have we to wait another seven years before something is done here? I submit that, socially, humanely and legislatively, we cannot wait for the slow wheels of the Law Commission to grind before at least something is done in the interim. The trouble with the offence with which we are concerned lies in its width and vagueness, which combine to make conspiracy an unhealthily potent weapon in any prosecutor's armoury and thus a menace to justice.
§ Certainty in the criminal law is something which we have always rightly prized very highly. It is a cardinal and essential principle of English criminal jurisprudence that a citizen should be able to ascertain in advance with some certainty whether any course of action he proposes to embark upon is contrary to the law. I am well aware that there are areas in which it is impossible to have absolute certainty, but there is a limit beyond which uncertainty becomes highly dangerous. In the case of criminal conspiracy this is the very thing 1107 we cannot do, since the limits of the offence are bereft of precision. Conspiracy is roughly defined as an agreement to do something which is unlawful. Since the offence lies in the agreement, no positive progress towards the object is required. It thus differs from an attempt, which requires some definite proximity to the accomplishment of the object.
§ Then we come to the question: " What does " unlawful " mean? This is what accounts for both the vagueness and the width of the offence. It is easy to state what it does not mean. " Unlawful " is not taken here simply to mean criminal; therefore conspiracies need not be agreements to commit crime. Some agreements are criminal conspiracies, even though the object of the agreement is not the commission of the offence, so it is indictable to agree to do something that it may be perfectly lawful for a single person to do. I find this to be a most incredible situation, the more dangerous because no one knows where it starts and where it stops. This is why I believe, with many others, that the law is in urgent need of change; hence my Amendments Nos. 36A and 37.
Here I try to point out that agreements can be criminal only where their object is the commission of a criminal offence, and a fairly serious offence at that. Presently conspiracies are indictable if the agreement is to induce certain breaches of contract, to commit certain torts, as well as committing crimes. There can be little doubt that the criminal law has no place here—and it is the criminal law with which I am concerned at this point, not the civil law—unless Parliament has unmistakenly expressed the view that a certain course of action should be an offence if the subject of an agreement. That way, and that way alone, there will be certainty in the law. This is exactly the point made by a leading English writer on conspiracy, Mr. Justice Wright, in his Law of Criminal Conspiracies and Agreements in 1873:
There may be cases in which acts done by several persons in agreement ought to be punished although the same acts ought not to be punished if done without agreement, but these ought to be specified and carefully defined.
Consequently the law ought to be changed so that only agreements to commit fairly
serious crimes could form the subject matter of indictable conspiracies. The burden, then, must fall on those who wish to make out a case for bringing other specific matters within the law to propose particular statutory provisions as they find them necessary.
There is nothing new in this, nor is it inconsistent with the law elsewhere. As far back as 1879 the Criminal Code Commissioners, among whom was the great judge Sir James Fitzjames-Stephen, made such a recommendation, incorporated in their draft code. Their principal recommendation was to confine criminal conspiracies to agreements which were treasonable, seditious and to commit indictable offences. They were also prepared to extend it to conspiracy to bring false accusations, to pervert justice, to defile women—I do not know how we would interpret that to-day—to murder, and to defraud, nearly all of which are covered by the expression " indictable offences " anyway; but there they would stop. This has been accepted in New Zealand; South Africa limits its law to conspiracies to commit crime; our particular notion of this law is nowhere known on the Continent. As Professor Sayre commented again:
It is high time to abandon the prevalent and oft-repeated idea that mere combination in itself can add criminality or illegality to acts otherwise free from them.
That was in 1922. The recommendations of the Criminal Code Commissioners in the previous century were likewise ignored. The solution, it seems to me, is in principle a simple one. It is time that this law, which really is a creature of the Star Chamber, was at the very least modernised so that we remove its more grotesque manifestations.
§ I want now to turn to conspiracy to effect a public nuisance and to corrupt public morals. Some special attention needs to be focused on this aspect of the subject, because this has been the centre of especial controversy and development in recent times. It is here that the law of criminal conspiracy reaches its most uncertain and elastic point. In the Shaw case in 1962 (better known as the Ladies' Directory case), about which we have heard a great deal, the House of Lords revived—and some people feel that they created—the offence of conspiring to corrupt public morals, support for which they 1109 found way back in the seventeenth century law reports. The courts, said their Lordships on that occasion, were to be the guardians of the public morals. Then, just a few weeks ago, in the It case (Knuller Ltd. v. The Director of Public Prosecutions), the earlier decision was upheld, wth the noble and learned Lord, Lord Diplock, dissenting, in a judgment that I think goes to the roots of the unfortunate decision.
Conspiring to corrupt public morals is merely one type of conspiracy to effect a public mischief. They are in fact the same thing. The Law Lords have held that it is for juries to determine what matters should be punishable, and their presence guards against abuse. But, as Professor Seaborne Davies has observed:
First, the jury system was never meant to be an alternative for properly enunciated law. Second, it is no more the function of the jury than it is of the judiciary to act as legislators in penal matters.
Nor does it supply any certainty, so that the major criticism of vagueness is still there. Parliament can deal with any particular matter that demands its attention. Therefore it should not be for the courts to determine which matters are criminal, solely by virtue of an agreement, when neither Parliament nor the common law has declared the conduct itself to be unlawful. In most cases suitable alternatives already exist. Where they do not, it should be for Parliament to legislate in order to say so.
This category of conspiracy was firmly recommended for abolition by the Commissioners of 1879, since there was no certainty as to what was covered. Professor Glanville Williams, in Criminal Law—The General Part, at page 707, after discussing a wide range of cases going way back, then says:
The general result of this discussion is that all the cases so far considered on conspiracy to effect a public mischief might, if they recurred, be treated as conspiracies to commit a crime or to defraud. So far as these cases go, therefore, there is no logical necessity at the present day for a heading entitled ' Conspiracy to Effect a Public Mischief '.
Commenting on the extreme vagueness of the phrase, he goes on to say:
Public mischief makes this an unsuitable rubric for the common law, which ought above all to aim at certainty.
It is this uncertainty regarding the offence of " corrupting public morals ", an issue which was evaded in the Shaw case, which made it in my view necessary to table my new clause, Amendment 38, which deals with abolishing the offences of public mischief and corrupting public morals. This is complementary to my new clauses comprised in Amendments Nos. 36A and 37 (which are alternatives), since without Amendment No. 38 there is a possibility that conspiracy to effect a public mischief or to corrupt public morals will survive. This is because, in spite of all the weighty authorities to the contrary, effecting a public mischief, and even corrupting public morals, may themselves be offences even when committed by individuals. There is much doubt about this—such doubt as has been expressed by the Criminal Law Revision Committee and by the courts. Clearly, if they are offences, then conspiracy to commit them will also be indictable, since they will be conspiracies to commit crimes, which will be covered by subsection (1) of my Amendment No. 37. It is imperative therefore to make it quite clear that these are not offences. That is why the provision is merely declaratory, since there is a doubt about this and therefore we must make sure that conspiracies to commit these offences will not in themselves be indictable.
§ Turning now to Amendment Nos. 36A and 37, the purpose of No. 36A is to limit the law to agreements to commit offences created by Statute or at common law. Similarly—and this is dealt with in subsection (1)(b) of Amendment No. 36A—Parliament may expressly enact that a conspiracy shall be an offence even where that which the conspirators conspire to do is not itself an offence; but in that case Parliament itself must decide.
§ My alternative clause, set out in Amendment No. 37, aims in subsection (1) to limit conspiracy to agreements to commit indictable offences (this represents the main recommendation of the 1879 draft code) and thus includes all conspiracies to commit offences of any gravity and excludes those of a trivial nature. It therefore supplies the certainty which is lacking up to the present time. Subsection (2) of Amendment No. 37 deals with the penalty and provides that the maximum punishment for conspiracy shall not exceed the maximum 1111 that could be passed for the full offence. There is a good case for saying that a range should be given here; but that was becoming far too complicated.
§ Conspiracy is a common law misdemeanour, and at the moment the maximum penalty at common law is life imprisonment and an unlimited fine; although Professor Glanville Williams has argued that even now the penalty that a court may impose in a conspiracy case is no greater than it could have imposed if dealing with the consummated offence. This may be so, but again there is no authority, and is as well to remove any doubt. No conspiracy can be more serious than the achieving of the actual object of the agreement; but even if it is considered that it is in some cases, then Parliament must again say so. Conspiracy to murder has a statutory maximum of 10 years imprisonment, and several overseas codes, including, for example, Canada, also lay down maxima.
§ Common law is judge-made law based on a long history of precedent. That, obviously, is something which is built into our system of law, and which at the moment I am proposing should remain there. What I am objecting to are the judge-made offences which are indefensible in our system of justice, and which we should find—and many of us do find—unacceptable. By leaving things as they are—and there always is an argument for leaving things as they are, even for the time being—we are giving support, however tacit, to the perpetuation of something completely alien in what I consider to be basically the splendid system of justice, even with its imperfections, which we have in this country. In perpetuating what to me really is a monstrosity, we are accepting, I believe, two concepts that cannot on any just and true basis be considered right. The first is that even if a decision is wrong, as was argued by the noble and learned Lord, Lord Reid, in the Shaw case, nevertheless it should not be overturned, as he argued in the recent It case, because between the Shaw case in 1962 and the It case in 1972 more than 30 convictions were obtained. Here I would agree with Bernard Levin in his articles in The Times, that this line of reasoning only multiplies the wrong 30 times. In answer to inquiries as to the details of these cases it has been extremely 1112 difficult to get any information about them.
§ Secondly, the area of public morals, as I have argued, is vague and imprecise and must rely on subjective judgments. As the mores of society are constantly changing, and the range of opinions of what is right or wrong in this area depends so largely on personal views, prejudice must rear its imprecise and injudicial head. Let us make no mistake about this. Judges, even with all the integrity at their command, have prejudices like other men and women. Indeed, I have always taken the view that the recognition of one's prejudices—for none of us is entirely free of them—should be the first lesson given to magistrates on appointment.
A knowledge of the law with all its discipline does not and cannot absolve other judges, however high their office, from the same natural human propensities. Therefore the law must, so far as is humanly possible, minimise their effects. As Lord Diplock said in his judgment in the It case:
Society is now able to express its collective view as to what conduct merits punishment by the State through a legislature now representative of all adult citizens.
The courts are not, and must not be, the keepers of society's morals. If the law continues in this way this is the unhealthy situation that is being perpetuated. In his address to Justices on June 27, Lord Devlin supported this view when he said:
It is quite wrong for the Judiciary to think they are responsible for the moral health of the community in some way.
It is for this reason that I have taken up your Lordships' time and why I believe that although there may be drafting difficulties in my Amendment, as I have pointed out, this is the time to discuss and to take action on this important matter. Since Criminal Justice Bills do not appear every day or every year (I know the noble Viscount said the other day, " Thank goodness! "), we cannot afford to put off legislation which would bring about at least some degree of reform in this really critical area. Therefore in not only supporting the spirit of these Amendments but ensuring that the Government act, the Committee will be making an important statement, and one which needs to be made before further
injustice is done not only in the area of public morals but in the whole area of conspiracy. I beg to move.
§ 6.13 p.m.
§ LORD STOW HILL
We have just listened to a wholly admirable and extremely well informed argument. I would only venture to intervene very shortly in support of my noble friend's plea for precision in this area of the law where I should have thought there was a great deal of uncertainty. I speak with some feeling on it because over and over again when I had some responsibility in the 1945 Parliament, in which I was privileged to work with the noble Lord, Lord Shawcross, both of us were continuously puzzled about where to draw the line with regard to the scope of the offence of criminal conspiracy. If one looks at the textbooks one is told that it is an agreement between two or more people either to do something which is unlawful, whether in the criminal or tortious sense, or to do something lawful by unlawful means, whether criminal or tortious.
There was, however, always that third area where there was an agreement between two or more persons to embark upon a course of conduct that was utterly objectionable and contrary to the public interest and which violated public taste. It is that area which is so uncertain. It always seemed to us, for example, that it was wholly unreasonable that it is apparently criminal conspiracy for two people to combine together to libel a third person. Is it, as we would have thought and rather believed, also a criminal conspiracy for two people to combine together to persecute a third person whom they do not like without committing a tort in so doing? I should have thought the answer was, " Yes." But I have searched the books to try to find authority. In the old days we constantly looked at the books to find help from them to answer that sort of question.
It is wholly undesirable that this important part of the criminal law should be left in such an uncertain state. Your Lordships may well turn to me and say, " You had plenty of opportunity in those days to do something about it; why did you not do so? " To that I can only say that I plead guilty and express my 1114 regrets. We should have done something about it. Years have gone by and this uncertain state of the law remains. We are rather in the situation we were in when discussing the question of bail; namely, that the matter is under investigation by the Law Commission. It would perhaps be unwise to launch into an attempt to give precision in this branch of the law before the conclusions of the Law Commission have been received. I do not know whether Ministers can give us any indication as to when it is likely that we shall have a report. I hope it will be soon. I personally would be very glad indeed if some legislation could be attempted which would tell the ordinary citizen when he is guilty of a criminal conspiracy and when he is not. I should like to support my noble friend.
§ 6.16 p.m.
§ LORD HALE
In view of the indications of a certain dislocation in the programme for to-day, and in view of the very great clarity with which the noble Baroness and the noble and learned Lord, Lord Stow Hill, have exposed the case, I almost apologise for keeping a promise to intervene. I shall do so very briefly. I too, for nearly 50 years, have had to be concerned with this law which was born and bred in the Star Chamber, although it is now more fashionable to say that the Star Chamber in the Poulterers case were merely asserting the common law of the land. Indeed their assertion is used to justify an unlimited custodial sentence, but it is remarkable that it fell for a long time into considerable disrepute. It perhaps reached its political acme in the case of Daniel O'Connel in 1844 which occupied your Lordships' House for about eight days and which was the last time upon which those noble Lords not learned in law sought to take part in a criminal decision and to vote, until they were persuaded to withdraw their claim to vote and to depart in peace. It was therefore left to the five Law Lords to judge the case impartially; they divided on political lines and allowed the appeal. That was the acme.
The noble Baroness referred to Mr. Justice Wright's learned book which was first published in 1869. But there have been curious recrudescences and amplifications for years after that. Mr. Justice 1115 Compton found that any trade association by workmen was a breach of the law although this dissension law was not called into use against the workers of Tolpuddle. They were charged with taking an illegal oath of a type taken still by every Masonic Lodge and Orange Society and they were ordered to be transported in consequence. In a very rare and lucid interval the Industrial Relations Act by Section 135 has dealt with the question of trade conspiracy by saying that the mere activity of a trade union, or an employers' association, as there set out, is not a criminal offence.
The noble Baroness has referred to the observations of Mr. Glanville Williams. It is fair to say that since Mr. Glanville Williams made some of those observations perhaps the most enlightened and most gifted Judiciary which we have ever possessed have given a series of decisions which tend, so far as possible, to limit this law, and indeed to clarify it. Can a husband and wife be charged with conspiring? Mr. Glanville Williams was doubtful. It has since at least been decided that a husband and wife can be charged with conspiring before they were married, and some doubt has been expressed as to whether they can conspire after the marriage. But it is still an incurred crime. The whole objection to a prosecution for incurred crime is contained in the definition to which the noble Baroness has referred. The crime of conspiracy is completed the moment two people agree. Nor does it cease to to be a crime even if they go back upon their agreement and take no step in pursuance of it. The agreement, it is said, is the crime. There again, of course that whole statement which lasted for years is subject to doubt. But surely it is appropriate that this House should to-day be discussing the question of the law.
In accordance with arrangements through the usual channels, and in accordance with, I think, the traditions and Rules of the House, the House passed " on the nod " to-day a Bill which contains a new form of crime against which the Chairman of the Bar Council and the President of the Law Society have written protesting to The Times, and about which the Law Guardian in 1116 its latest issue protests in the most vigorous terms. I am referring to Clause 38(3) of the Finance Bill. I have not thought, as a junior Member of this House, that it would be appropriate for me to say or do anything not clearly in accordance with the Rules and the customs of this noble House; but I hope that some other more competent person may have a look at it before it is too late.
The burden we are putting upon the Judges is an intolerable burden. A stream of legislation goes through, a stream of alteration goes through, and the necessity for definition becomes more and more urgent. To-morrow we shall be discussing a Bill which appears to subject a substantial section of our law to decisions of a Commission in Brussels; and many solicitors are fully employed in studying the Code Napoleon. To-day, we have been discussing, in somewhat heated questions in this House, this situation in which the law seems to be subject to challenge. Could there be a more appropriate time for us to decide to pass these two Amendments, even if they involve some further clarification later, and remove from our laws a vague form of incurred charge which has been responsible for much injustice in the past, which has never been clearly defined, which no one claims very clearly to understand, and which has been the subject of controversy for many years?
§ 6.24 p.m.
§ BARONESS WOOTTON OF ABINGER
I should like to support my noble friend, but I do not propose to compete with the learning which was shown in her speech just now. I should like only to say, as a simple citizen wishing to keep the law, first that it would be nice if we had, as some countries have, a criminal code where one may look up to see what one may do and may not. I should like also to say that just over five weeks ago the noble and learned Lord, Lord Reid, in the International Times case said that there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense. As a simple citizen, I have been brooding over this for five weeks and asking myself what it means. I know that there are some things that I must not do because they might involve me in civil actions. I know that I must not break my contracts. 1117 I know that I shall get into trouble in this country if I am found to have committed adultery. But that is not a criminal offence, as it still is in certain States of the United States, though I think the law is not much put into operation there.
I then remembered that the noble and learned Lord, Lord Reid, in Shaw's case, had taken a rather liberal line and I looked up to see if I could find some guidance there as to what I might or might not do. I saw that he discussed the question, " What is an unlawful act? " I am quoting from the Appeal Court Reports, 1962, at page 273, but am doing so with some omissions to save time. He said:It is an unlawful act to commit a crime ".Well, I knew that. He added:It is unlawful to commit a tort in certain cases, but it seems to be at least doubtful whether it is an offence to conspire to commit a tort which is neither malicious nor fraudulent nor accompanied by violence.At the end of my five weeks brooding I am still quite uncertain as to what I may do and what I may not do, either alone or in conjunction with other persons. I realise that this is such a complex question that it cannot possibly be resolved by my noble friend's Amendments, or by the learned replies that will be given to them from the Government Benches. But I feel it is useful that this matter should be ventilated, simply on behalf of people who do not understand, as I do not understand, what one is allowed to do and what one is not.
§ LORD GARDINER
The whole Committee will have admired both the courage and the ability with which my noble friend Lady Birk has moved this Amendment dealing with this very complex and difficult field of law. There are many lawyers who will agree with her, and we await with interest to hear what the Government have to say.
§ LORD WIDGERY
The use of the conspiracy charge has been criticised so often and for so many years that it would no doubt have been abolished long ago unless there were some real merit left in it. I take up your Lordships' time for only a moment or two to deal with one or two of the cases where I suggest real merit remains. The first is the existence of conspiracy to commit a summary offence, which under this Amendment 1118 would no longer be a crime. I think the classic example, which I will quote, of this having value is a case called Blamar, of some years ago, where a number of road haulage contractors agreed with their drivers that the drivers should work longer hours per day than the law allowed. For a driver to exceed his hours is a summary offence, and nobody would wish it to be more; but when a large number of people combine together so that a breach of the law shall take place over a wide field we have something which, in my opinion at any rate, requires to be touched by the criminal law in a more severe sense than the summary offence itself. The mischief of what is happening there is that a number of people are combining and thus making the result worse; and these are circumstances, I suggest, where the crime of conspiracy, which enables the combination of the attack, still has practical value.
The other example is a conspiracy to commit a trespass. Suppose that a hundred people go to a cricket match with a view to disrupting the game. We may assume for present purposes that they are doing it purely for fun—as a hooligan exercise, and no more. Their tactics are that as soon as the game starts two shall run out and sit on the pitch. The police will be called and after an interval the two will be carried away. The match will start again, and after a few minutes the next two will go out, and so on. It is perfectly feasible in those circumstances for the entire game to be disrupted and for many law-abiding people who have paid their money to be deprived of their enjoyment. It is not a criminal offence of any kind to run out and sit down on the pitch; it is at worst a trespass. But surely the fact that a substantial number of people combine to do it, and thus so greatly increase the mischief of what is done, should be something which the criminal law can touch. So here again we have an example of an action which is not criminal at all but which, I suggest, is properly brought within the criminal law under the charge of conspiracy under the present law as it stands.
§ 6.30 p.m.
§ THE LORD CHANCELLOR
It is a little difficult to discuss the Amendments tabled by the noble Baroness, Lady Birk, 1119 without trespassing a little on the ground of the noble and learned Lord, Lord Gardiner, since he has taken a rather more restrictive view of what he proposes, somewhere about in the middle of the very discursive series of remarks with which the noble Baroness introduced her Amendment. I am afraid, therefore, that I am bound to err once more slightly on the side of length, and I hope the Committee will bear with me if I do. It may be because I am a bore on the subject of criminal law and it may also be because the subject is slightly more complex than some people seem to think.
I should like to begin by agreeing with the noble Baroness, Lady Wootton, that it would be very nice to have a criminal code. I start with that proposition because I have long been saying so. She will not be unaware that the Law Commission is trying to produce one and that it will be some time before such an animal emerges into the light of day. The very beginnings of that started, I suppose, with the Theft Act of 1968; we did the Criminal Damage Act last year and we are producing criminal legislation as fast as the Law Commission can produce it, but in my judgment and to my regret it will be a number of years before a criminal code in any rational sense emerges.
I hope the Committee will take a statesmanlike view of this particular problem and will not be rushed into ill-considered legislation simply because of the Knuller case, which I propose to discuss perhaps at greater length when the noble and learned Lord, Lord Gardiner, introduces his more restricted Amendment. But let us keep in mind one or two broad principles of legislation and see how far these Amendments really meet it. In the first place one of the most valuable—indeed it may be the most valuable—of the legacies left to me by my predecessor was the Law Commission. I think when his long and distinguished tenure of the Woolsack—if " tenure " is the right word—comes to be appreciated by later generations they will probably put down the Law Commission as his great positive contribution, although he made others of great importance, too. I have always valued that a great deal. I think its value lies in the fact that law reform, if it is to be any good, must really be carefully 1120 thought out and its implications thoroughly discussed and understood before it is introduced.
My predecessor Lord Campbell—rather before the noble and learned Lord, Lord Gardiner—took the view, as I reminded the House some time ago, that law reform is either by consent or not at all. I only wish this was always true, but I feel that one should be very careful about pre-empting the discussion of the Law Commission on a matter of this kind. The law of conspiracy has been criticised and discussed almost ad nauseam in the last 150 years, and almost all the theories which the noble Baroness has sought to embody in her Amendments, and which she discussed at greater length in her elegant speech, have been brought forward from time to time and successively rejected as inadequate.
Nobody could be more conscious than I am of the need for a precise and adequate reform of the law of conspiracy and nobody would be more glad than I would be if it were introduced. For reasons that I shall give in due course I do not believe that it is a particularly urgent matter, but none the less I think it is important and it is a part of the law which I hope the Law Commission will deal with in due course. The noble and learned Lord, Lord Stow Hill, asked—when? They have not yet published a working paper but I understand that they are making good progress towards one. I cannot give a date but they are moving towards a working paper. The noble and learned Lord will understand the stage in the process of law reform which that involves. They will of course pay close attention to what has been said in your Lordships' House and to the public discussion, to which the only peripherally important Knuller case to this general issue has given rise. But I would ask the Committee not to preempt the Law Commission. It is a much more complicated thing than the noble Baroness and her advisers really think.
Secondly, this is a Bill about criminal procedure and criminal evidence. The Long Title has one alteration in the law of substantive crime to which it makes special reference—Section 9 of the Public Order Act 1936; and one specific increase in penalties—Section 21 of the Firearms Act 1968, but otherwise it does not touch the substantive law at all. Each of these 1121 Amendments is wholly outside the Long Title of the Bill. Therefore they are only arguably within the subject of the Bill. I do not want to take up anything like a pedantic line about this, nor do I want to argue it as a point of order, but I should like to remind the Committee of the practice of the House about Amendments which are outside the subject matter of Bills, which this Amendment, at any rate arguably, is. I remember when I was leading this House some years ago this question was raised by Lord Attlee and at my request the then Lord Chancellor, Lord Kilmuir, gave advice to the House, which I would venture to say is not irrelevant to this afternoon's discussion. He said:It is sometimes said that ' there are no rules in this House ', and this is true in the sense that the House is master of its own procedure, that it is not tied by precedent and can give a wide interpretation of its normal practice. The House has always been aware of the advantage which it derives from the elasticity of its procedure, but has also been aware that abuse of this elasticity is not compatible with the dignity of its proceedings or the proper conduct of its business.Then he went on to say this:The practice of the House has been that Amendments to a Bill must be relevant to the subject matter. They may be outside the Long Title of the Bill, and in this case the Long Title of the Bill can be amended; but where they are not relevant to the subject matter the sense of the House has made itself apparent and the mover of the Amendments in question has withdrawn them.This is not, with the triflng exception I have given, a Bill to deal with offences and the substantive law at all, and we are now being asked, at a very late stage of the Bill indeed, to introduce a substantial change in the Criminal Law of great importance, in an area of great complexity and uncertainty which at the moment is being undertaken specifically by the Law Commission.
I do not believe that this is a sensible thing. The Bill has been through the House of Commons and nobody suggested—nor could they have there suggested—that an Amendment of this kind was either appropriate or could be made. If it were to be made—and I should hope that it will not be made—it will have to go back to the House of Commons for discussion. Anybody who thinks that this Amendment is going to get through that House without discussion simply does not know what the 1122 House of Commons is like or what this Amendment would do. I would suggest that it might even imperil the Bill—I do not know. But it would certainly throw an already overloaded Parliament into a state of confusion if this opportunity were taken to make so controversial a change, and so doubtful a change, as I shall endeavour to show it to be.
On Second Reading neither the noble Baroness nor the noble and learned Lord who spoke for the Opposition gave any indication of any of these Amendments. The first element of warning we had was about 10 days ago when they appeared on the Order Paper, without previous notice. I do not in the least complain that we should discuss this matter. The noble Baroness, Lady Wootton, used an admirable phrase when she said it was right that this subject should be ventilated, and I make no complaint that it has been so ventilated. But that we should attempt to deal with it in a superficial way at this stage of the Bill, when it is under consideration by the Law Commission and when there is such a long history of great complexity of discussion, extending over more than a century, is something I beg the House not to undertake.
I come to the actual nature of conspiracy. A part, at any rate, of what fell from the noble Lord, Lord Hale, seemed to attack the existence of any offence of this kind. He made many charges against it and ranged from the Common Market through this year's Finance Bill to the Industrial Relations Act. Fortunately this Amendment does not quite cover the whole of that, but the law of conspiracy would remain in some form even if the Amendment were passed. However, what it does is to confuse the number of quite separate issues and prescribe a number of remedies which have been successively rejected by successive experts on the subject.
The first proposition to which one of the Amendments commits itself is that if a thing is not a crime when done by one person it should not be a crime when done by a number of persons. I will give an example, adumbrated in the excellent short speech of the noble Lord, Lord Stow Hill, to show why this extremely controversial doctrine has hitherto been deliberately rejected by Parliament. If I were to refuse to speak to the noble and learned Lord opposite 1123 I do not suppose it would break his heart. He would no doubt be sorry, because we have enjoyed a long professional friendship and we remain on good terms despite many political differences; but I do not think he would commit suicide if I said, " Never again will I speak to that man." On the other hand, if all your Lordships were to refrain from having any social intercourse with the noble and learned Lord, that might drive him to insanity, or even suicide. In other words, when things are done by one person they are not necessarily the same as when they are done in concert by a great many people. The noble Lord, Lord Stow Hill, rightly pointed out that something done out of malice to ruin or drive insane, or to drive to despair, might be perfectly all right when one person does it, but when done by a crowd of people it could be the worst kind of cruelty and, I should have thought, could be a devilish form of crime.
Then one gets the doctrine that it can be conspiracy only if it is an indictable offence or, in an amended form in one of the other Amendments, that the penalty for such conspiracy can be a penalty only for the offence if it is done by one person. The noble and learned Lord the Lord Chief Justice gave the answer to that when he said that many summary offences carried very small penalties if they were done by one person, even on a number of separate occasions. One example which the Lord Chief Justice gave was the number of hours which a road haulage driver could be made to work. That is done in the interests of safety and good employment. But a totally different complexion is put on an offence of that kind if a number of people agree to do it habitually and it becomes, as the law now stands, an indictable offence. If the noble Baroness's Amendment were carried it would cease to be in that category and the maximum penalty would be that which could be inflicted on someone for having done it once. With great respect to her, when successive experts have rejected this facile view of the law, they have been perfectly right.
There is something about a conspiracy to do something habitually—even though what is done, if done once by one person, is a summary offence—which puts a 1124 totally new complexion on the matter and may justify an indictable offence with a larger penalty. At any rate, it is not manifest that Parliament must be steamrollered and jumped into making a decision of this kind because of the Oz or the Ladies' Directory cases. These things are very different in kind. In fact, what the noble Baroness has done has been to remove various types of conspiracy without putting anything in their place. It may be true—one has heard it argued both by the House of Lords in its judicial capacity and by textbook writers—that the time has come for Parliament to assume the total mantle of deciding what should be and what should not be criminal. I am far from saying that this is an entirely foolish, mistaken or perverse point of view, but if Parliament assumes that mantle in the light of public discussion, then it will have to put something in the place of the offences which have been created by the law of conspiracy; otherwise there will be a number of wholly unacceptable gaps in the criminal law.
I will give some examples to illustrate what I am saying. Consider a conspiracy to defraud by one means or other. It is very well accepted that there are certain types of fraud, particularly in relation to, say, stocks and shares and the more complex activities of the money market which, if done by a number of people, amount to an indictable conspiracy. The noble Baroness spoke as if it was only the Ladies' Directory and Oz cases which invented this sort of role for the courts; but that is not so. The leading case of a kind of conspiracy to defraud occurred during the Napoleonic Wars when a number of people conspired to put round the rumour that Napolean was dead. That was something which anyone could do perfectly lawfully, if he did it innocently, alone and without a motive to defraud. But the effect was to put up the share market. One sold one's shares; people then discovered that Napolean was still alive and one made a big profit. That sort of conspiracy to defraud could be carried out in a multiplicity of ways, and I am rather surprised that so many noble Lords and Baronesses on the Benches opposite who are usually rather quick to discern the " wickedness " of the profit motive when it is misused should be so slow to realise that they would, by these 1125 Amendments, open the flood-gates to every kind of commercial fraud which can be practised by way of conspiracy.
Perhaps noble Lords might care to take the example of the obstruction of public justice. I think we should all agree that a conspiracy by a number of persons to create a wrong result in a piece of litigation, be it criminal or civil, or to obstruct it, pervert it or defeat it—such as by preventing a witness from giving evidence—should be a crime. I dare say that it could be made a crime if Parliament were to undertake the role cast for it by the noble Baroness and that in extreme cases it could be punished summarily as a contempt of court if the Lord Chief Justice came to hear of it. But in fact what has made it a crime, and what makes it a crime at the present day, is the law of conspiracy. If these Amendments to the substantive law are passed at this late stage of the Session, without previous discussion, in a Bill to which it is irrelevant, it will allow that sort of thing to take place. Take the case which I have mentioned already and which was mentioned by the noble Lord, Lord Stow Hill. Nobody quite knows the number of conspiracies based on malice and intention to injure or harm or ruin, or drive mad or drive to suicide which are crimes at the moment. But I do not know of anyone who really suggests that they should not be a crime. It would shock me if anybody did suggest it. Again, if Parliament is to undertake the role cast for it by the noble Baroness, no doubt it can define that kind of thing in greater detail. But at the moment what makes it a crime is the law of conspiracy, and if these Amendments were passed that gap would be left.
That brings me to another class of case which is rather similar to that which I was discussing a moment ago. There are two or three of them. In the case of Brailsford, for instance, in the early part of this century, there was a conspiracy to obtain a passport for one person, who could not obtain it, by falsely representing that it was intended for another. I doubt that any civilised society would allow that kind of thing to be done. At the moment, what makes it illegal is the law of conspiracy. In the case of Bassey there was a conspiracy to obtan admission to the Bar by obtain 1126 ing false certificates. I forget whether it was a case of passing an examination in another country but there were false certificates. Again, obviously it was a criminal conspiracy. What makes it illegal at the moment is the law of conspiracy, and if the Amendment of the noble Baroness were to be passed it would cease to be a crime. More recently, there was the Newland case which was related to the Export Regulations of the first Labour Government after the war. In that case some ingenious people discovered that it was possible, without committing a breach of the regulations, to conspire together to divert, by a particularly ingenious device, the goods which were designed for export, at a critical moment of our country's history, into the domestic market. Again, that would have been perfectly legal hut for the law of conspiracy. The then Divisional Court (I think it was, and certainly Lord Goddard) delivered a judgment in which the conviction of these people under the law of conspiracy was duly upheld. But that would go, too, if this Amendment were passed.
I do not want to waste a great deal of time on Knuller, Oz and the Ladies' Directory because we shall no doubt be discussing them at greater length when the noble and learned Lord moves his next Amendment. Nor do I want to draw on the whole of the material which I have prepared for my speech then, but I should like to point out to the noble Baroness that she has confused—and it may be that the noble and learned Lord is in danger of confusing—a number of quite separate issues in this connection which ought to be isolated, identified and discussed if we are going to make a rational, coherent change in the criminal law relating to conspiracy. Of course it is true that the majority in the House of Lords in both cases decided that there was a residual right of the criminal courts of this country to extend the boundaries of conspiracy in an unidentifiable number of cases. They must be very few by now, but it is said that that residual right could not wholly be excluded. That may be a good thing or it may be a bad thing. In fact, if it is to continue it will not be very surprising because the whole nature of the common law is that it does advance, in unpredictable ways, to deal with social changes. That is one of its 1127 great merits in most fields. It may be that it is not altogether a disadvantage in the field of criminality. At any rate, it is obviously a matter of contention which can be discussed but it is a separate matter of contention.
What the Oz case and the Ladies' Directory case decided (apart from that which again is something which I think is quite open to discussion) was that, notwithstanding that an advertisement is not inherently obscene (and I shall give one or two examples when we come to deal with the next Amendment), it was an offence to advertise in the public Press for certain types of prostitution. In the Ladies' Directory case it ranged from straightforward prostitution, openly advertised, to various kinds of perversity by female prostitutes—it was the Ladies' Directory and not the Men's Directory.
Another case was the reverse of that, where it was the male directory of male prostitutes and their canvassers for their services. It may be that Parliament wants to make that legal. I am not in the least trying to prejudge that issue. I have lived in a number of countries where such advertisements are quite common. It may be that Parliament wants to do it. But let no one suppose that if it does it is going to be uncontroversial, that it will go by without discussion in both Houses, or that it ought to be done by a side wind in a procedural Bill which has nothing whatever to do with the substantive law relating to these subjects. I shall argue that at rather greater length when I come to deal with the suggestion of the noble and learned Lord of the more restrictive kind. But to confuse that with the issue as to whether the courts ought to have this residual power is to confuse two totally separate questions just because they happened to coincide in one single case.
That is rendered rather less desirable than more desirable by the fact that although what was decided in the two cases by the House of Lords in its judicial capacity was that advertisement for prostitution, in effect, with or without perversions (by which I mean the kind of things such as whipping and the wearing of a mackintosh and so on), ought not to be allowed irrespective of the law of obscenity. The fact that they also decided that you have to label this offence, not publishing advertisements for 1128 prostitution but conspiracy to pervert public morals is really a third issue which is neither here nor there.
I hope that I have said enough to the Committee to indicate why it would be wise—I do not complain that this question has been raised—not to press these Amendments at this juncture in this Bill at this stage of the Session, when the subject is under the Law Commission's scrutiny and when we hope to produce at the end of the day not merely a rational law of conspiracy but ultimately a coherent penal code.
§ 6.58 p.m.
§ BARONESS BIRK
May I first of all thank those noble and learned Lords, noble Lords and my noble friend Lady Wootton of Abinger who spoke in support of my Amendments. In order to save time I will not touch on anything they said. In any case they were mainly for me and in support of my argument.
The noble and learned Lord the Chief Justice, who has gone, raised the question of conspiracy to commit summary offences. There again it seems to me that if there are offences which should be treated as offences then they need to be spelled out. One reason why I put as alternatives Amendments No. 36A and No. 37 was in order to cover both these eventualities and to throw them both, so to speak, into the melting pot. I am afraid that I see no reason why, though the legal machinery may be difficult—and I speak, if you like, as a woman in the street on this—if one makes up one's mind that something is wrong one should not seek to find the means and machinery to put it right. However, I agree with the noble and learned Lord the Lord Chancellor that this is an extremely complex subject. I am well aware of that.
If I may go to some of the points he made, let me first wipe away what I would call the peripheral irrelevancies. First, I must apologise that I did not bring up this matter on Second Reading. I was not able to be here then. Secondly, however much he may dislike it, it is my own thing; it was not brought up in the Commons, and although I had help with the drafting it was my own idea and, so to speak, my own child, whatever sort of bastard child he may consider it to be.
§ THE LORD CHANCELLOR
It was very wrong of me to suggest that it was anything but the legitimate child of the noble Baroness. All I was suggesting was a little longer period of gestation.
§ BARONESS BIRK
With regard to the point about its being in this Bill, as the noble and learned Lord has observed, I have sought to amend the Long Title in order to do so. I appreciate his reasons for arguing against its being included, but this is really making a necessity of virtue. I cannot see anywhere else where it could go in. The Bill is concerned with criminal justice; there are a number of miscellaneous provisions and of other things apart from the actual administrative side of the matter. It did really seem to me that the time had come when something ought to be done. Quite frankly, this was the only vehicle available, so I jumped on it.
Then the noble and learned Lord made the point about the law of conspiracy being discussed almost ad nauseam over a long period of time. This, of course, is true; but it does not make the law any more right or make it more wrong that we should try to do something about this matter within the foreseeable future. One of the points of substance he did make was that I had said that things done by one person are not so bad as when done by several. I in fact said, and repeated more than once, and also drew up in these alternative Amendments, that if this is so then so it must be said: you cannot bring it in under this one umbrella. I think the best way I can answer the noble and learned Lord on that is to quote what the noble and learned Lord, Lord Diplock, said in his judgment on the Knuller case:My Lords, it may be rational to hold that there are some kinds of acts which if done by a number of people acting in concert have consequences sufficiently harmful to call for punishment by the State, but which if done by one person acting on his own have consequences that are not grave enough to demand penal sanctions. But it is the height of sophistry to say that the doing of the acts in concert which alone can have harmful consequences is not what the law regards as meriting punishment but that the prior agreement to do them is. This is to turn the common law doctrine of ' overt act ', which was the origin of the crime of conspiracy, upon its head. In most cases of conspiracy the prior agreement is itself only inferred from the acts which are being done in pursuance of it. They are the consequence of conspiracy, not a step taken towards it; whereas the con 1130 spiracy, like an attempt, became a crime because it is a step taken towards the commission of a crime.Even the noble and learned Lord the Lord Chancellor himself said that this discussion has been going on for a long time and there is a great deal of dissatisfaction over it, and when he came to the Shaw and knuller cases, on which I do not want to dwell because my noble friend will be moving his Amendment in a minute, he said that Parliament might make it legal but that it would cause a lot of controversy. Fine! Then it is up to Parliament to decide. But what I object to is using what I call a blanket in order to cover over something, instead of attacking it by what I feel are the legal constitutional means, either what is in the common law already laid down, or using statutes, and, as I am sure he knows better than I do, rather than use the Obscene Publications Act, or even try to proceed under the Sexual Offences Act. This very, in my view, nefarious and dubious method was used of proceeding under the law of conspiracy instead. In addition to that, a verbal undertaking was given in 1964 that when the Criminal Justice Act was amended—
§ THE LORD CHANCELLOR
I do not want to interrupt the noble Baroness, but does she not think that this part of her speech could be put on the next Amendment? I deliberately did not talk about Oz except in very general terms. All this business is an attack upon, I suppose, one of the Labour Law Officers. It was very fully dealt with under that rubric of the Oz and Knuller cases. I think we could deal with that matter much more conveniently on the next Amendment.
§ BARONESS BIRK
I agree. I would not have raised it more than just in passing when I moved the original Amendment, if the noble and learned Lord had not himself raised it quite extensively when he used the phrase, that " There are advertisements which ought not to be allowed irrespective of the law of obscenity ". I am very happy to leave it to my noble and learned friend.
Finally, I do not wish to press this Amendment to a Division. I am unrepentant at having raised the whole matter. I still think that something ought to be done fairly soon, and that if the Law Commission are not going to report for 1131 some time we ought to take some action to see that what I consider are continuing injustices and lack of certainty in the law should not continue, in the noble and learned Lord's words, ad nauseam, because this is what, in my view, is happening now. With the exception of the noble and learned Lord, the Lord Chancellor, and the smaller exception, in parenthesis, of the noble and learned Lord the Lord Chief Justice (although he seemed, as I took it, in support of the general thesis), it does seem to me that the feelings of those noble Lords and Ladies who spoke were in support of the principles I was seeking. I will let the matter rest there. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
VISCOUNT COLVILLE OF CULROSS
I understand and would anticipate that the Amendment of the noble and learned Lord, Lord Gardiner, may take a long while to discuss, and since the House is reverting to this matter on Thursday, it may be that this is the moment when we should give way to those who follow us and allow my noble friend Lord Sandford to deal with the next business. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.