HL Deb 26 June 1972 vol 332 cc576-663

2.57 p.m.


My Lords, I rise to move that this Bill be now read a second time. There are two themes in the Bill to which I wish to draw the attention of your Lordships. We are widening the powers and facilities of the courts to deal with offenders in two main ways: we are strengthening their powers to deal with major criminals and we are giving new non-custodial remedies to them to deal with lesser offenders. At this stage—and this is no mere platitude—I wish to say how very much the Government are indebted to the Advisory Council on the Penal System under the Chairmanship of Mr. Kenneth Younger, and in particular the sub-committees chaired by the noble Baroness, Lady Wootton of Abinger, and the noble and learned Lord the Lord Chief Justice. There are other Members of this House who have served on the Council, including my noble friend Lord Sandford, the noble Baroness, Lady Scrota, the noble Lord, Lord Delacourt-Smith, my co-Minister of State in another place, as well as many other distinguished people. The two sub-committees reported in July, 1970, and I am glad to say that it was only 15 months before the Government introduced legislation to implement a good deal of the contents of both those Reports.

Let me now deal with the first of my themes, the strengthening of the powers of the courts to deal with major criminals. Like a good deal else in the Bill, some of this is of an experimental nature, and this part of the matter is largely the result of the work of the committee under the Chairmanship of the noble and learned Lord the Lord Chief Justice, as he now is. First, I will deal with the reparation by the offender to his victim, dealt with in Clauses 1 to 5 of the Bill. Powers exist in this field already although they are a trifle haphazard, and the 23rd paragraph of Lord Widgery's Report sets out some of the snags that have so far beset this subject. Perhaps for that reason they have not been as widely used as some people might hope, although perhaps more substantial use has been made of the powers than people think. At any rate, the existing powers were criticised by the noble and learned Lord in his Committee. For instance, he pointed out that sometimes an application had to be made by a claimant, and I confess that when I used to prosecute pleas at the quarter sessions I often wondered where the claimant was, because there was no question of him corning to the court. I wondered how an application could be made, although certainly it was no part of the prosecution's case to do it.

Secondly, personal injury was covered only by way of reparation where the court made a probation order or granted an absolute or conditional discharge. There were different financial limits under different Statutes and cases taken into consideration were not covered at all. Therefore, these first clauses of the Bill produce new provisions and a uni- fied code. We hope that the courts will find them easier to use although, of course, everyone must recognise that there are still problems. The offender's means may not be sufficient to allow reparation to be made and one has to note that the proceeds of crime manage to get dissipated very quickly. One may find also that the facts are too complicated for the matter to be dealt with in a simple way by a criminal court and that the case should go to the civil courts. One may find that the only solution is a long prison sentence which does not march easily with reparation. Nevertheless, here in the Bill are powers which we hope will substantially improve this matter.

There is also provision for appeal, for the review of reparation orders, and for marrying the scheme in with civil damages and, incidentally, with the Criminal Injury Compensation Board so that nobody gets double money out of the same incident. In Clause 5 there is provision to give priority to the claimant over all other possible people to whom the money may be paid when it comes into court. If I pass over these matters a little quickly, it is because I know I have an opportunity at the end of the debate to reply to specific questions. The House will be aware that there is a good deal in this Bill and I must try not to outdo my welcome at the beginning. Again on the subject of reparation, we take the opportunity in Clause 6 to simplify, perhaps, the whole process of making restitution orders which largely occur under the Theft Act 1968; and here, too, some anomalies and difficulties have been removed.

Next in the Bill one comes to the provisions on criminal bankruptcy. Here indeed is a major area of experiment. It started with some ideas from the Law Society, was taken up by Lord Widgery's Committee and after some consideration it now appears in the Bill in Clauses 7, 8 and 9, and in the First Schedule which contains the nuts and bolts of the machinery. We thought that, to start with, it was proper to limit the cases to those where the amount of money concerned was £15,000, although this can be altered by order later. That provision appears in Clause 7(1)(b). The reason is that there is at the moment considerable pressure on the bankruptcy machinery. Indeed, we are very grateful to the Department of Trade and Industry and their bankruptcy officers for being prepared to take on this new work. We are also very grateful to the Director of Public Prosecutions because it is he who under Clause 9 is to be the Official Petitioner under the machinery we are here setting up.

My Lords, we think that this limitation will, to start with, produce something of the order of 100 cases a year susceptible of being dealt with under this procedure, and I will tell your Lordships in very much a thumbnail sketch about the method whereby it will work. The court will convict an offender of an offence or offences where the money or property concerned in their judgment, and according to the information they have, amounts to £15,000 or more, and when passing sentence they will be able to take into account other cases. The court must know who the victims are and be able to name them and the amount of loss, at any rate in a preliminary fashion, according to the statements and other calculations that have been made. In those circumstances they can make a criminal bankruptcy order. As this is a formal act of bankruptcy there will in future in such cases be no need for a civil judgment as at the present moment occurs. Once the court has done that, it is primarily up to the Official Petitioner to decide whether he should present a petition in bankruptcy and set the machinery going. We think that he is eminently capable of deciding on the cases where he should so proceed because this is not dissimilar to some of his other jurisdictions in the criminal field. If he decides not to present a petition, the victim or any of the victims nevertheless are not estopped from proceeding with a petition; it will be a perfectly ordinary petition in bankruptcy arising out of the order. Thereafter the ordinary bankruptcy procedure will follow; but there are in the Bill additional powers to unravel previous transactions back to the date either when the offender was first brought to court or, as the case of a summons, when the summons was first issued.

The offender is not without remedies because he can appeal against the criminal bankruptcy order and he can also take part at a later stage in the bankruptcy proceedings, to say that the loss was not so great as is claimed or other matters of that sort. We hope that this will be a new and useful—although at the moment slightly limited—weapon in the armoury of the courts and will enable them to deprive criminals of some of the spoils of their crime.

From this topic I would pass on to Clause 22 of the Bill where we come to the forfeiture of property. Again there exist somewhat limited powers in the law relating, for instance, to firearms or apparatus used for poaching, and things of that sort, but no universal and general principle. Here we take powers to allow the courts a universal and general power of forfeiture which they can use on property of any sort used or intended to be used for the commission of any offence. That is covered by Clause 22(1). I suppose one could be fanciful about this power, but I do not suppose the courts would use it in a silly way. Nevertheless, one could think that on occasion they might even forfeit a car or something of that sort. It is open to them to use their common sense on such matters, and I am very happy to make that approach to powers being given to courts.

By Clause 23 we provide a general power to disqualify criminals from driving. This power is available to the Court where a motor vehicle is used to commit or facilitate the commission of an offence for which the offender is convicted. The offender need not have been the driver of the car, because on many occasions in gang expeditions it does not very much matter who happened to be the driver and it is as well to give the courts powers to disqualify any or all of those who take part.

Finally under this heading, in Clause 24 we increase the maximum penalty for firearms offences. They are fairly high now, but perhaps not altogether proportionate with the maximum penalties which courts have to deal with in other very serious offences and although a maximum penalty does not mean that the courts will ever or always use it, what we hope is that by increasing the penalties in the Bill we will show the seriousness with which Parliament views the offences of using firearms—which I am afraid are rather prevalent to-day.

My Lords, I then come to the second main theme in this Bill: that of non-custodial treatment. Here I turn and bow to the noble Baroness, Lady Wootton, because so much of this depends upon her most valuable, fascinating Report. I am afraid there are some gaps in the Bill where her suggestions have not been implemented, but nevertheless we are deeply indebted to her; I am sure she sees reflected much of her thought in the phrasing of the Bill. This is a very important subject. For some, prison cannot be avoided, but certainly as the Minister who has to deal day to day with the prisons I could not be more grateful for any measure which takes my clients away from me, even potentially. There is far too much overcrowding; there is far too much difficulty in getting people to the training prisons where they may properly be trained to take a useful place in life when they are released. I am delighted to be able to commend these measures to the House, particularly as they chime in so well with the voices of so many others in the community who say that that is where the offender should be treated: in the community rather than in prisons. We go some distance along that road in this Part of the Bill.

The philosophy of this subject is, I think, very plainly set out in Lady Wootton's Report, in paragraphs 7 to 10 at the beginning where she speaks of the need for innovation in this field, and I would commend those paragraphs to your Lordships. First, I would deal with Clause 10, where we touch upon the subject of suspended sentence, a creature of the Criminal Justice Act, 1967, not of this Bill. The mandatory requirement whereby, except in the specified circumstances, a court had to suspend sentence has been under criticism for long from many sources; indeed I think it was originally criticised when the Bill was before Parliament, and some of those criticisms have turned out to be not unfounded.

In Clause 10 we restore to the courts the discretion that those mandatory provisions took away. That, I think, is good in itself, because I feel that the courts deserve discretion and reflect the wisdom of Parliament in giving them discretion. It is also good in that it appears that the use of probation orders and fines has quite remarkably decreased since the suspended sentence was brought in. Nor has the original object of the suspended sentence, which was to prevent people from going to prison at all, had the effect that was supposed, because, alas, in too many cases the suspended sentence has had to be activated after all, and so in those cases the people are in prison. We think this procedure has not been flexible enough in practice, and the courts and others will welcome Clause 10 which allows a great deal more appreciation of the situation and a great deal more use of judgment and experience by those concerned.

What does matter—and I think I should draw all this to the House's attention—is what appears in subsection (3) of Clause 10, because here we emphasise that a sentence of suspended imprisonment should never be imposed unless, if it were not for the power to suspend sentence, imprisonment would be the right answer for that offence and that offender. This is what underlies, and we hope will underlie, the use of the suspended sentence in future, and it reflects the judgment of the Court of Appeal given very recently in the case of O'Keefe.

In Clauses 11 and 12 we come back to the noble Baroness's Report, because here she had something to say about the suspended sentence. In these clauses we are adding the power to assist an offender by a supervision order running during his suspended sentence. I am afraid that, for the moment, although there is power in the Bill to change this, this facility will have to be restricted to the higher courts, because there simply is not the staff in the Probation and Aftercare Service to go round—I will say a word about that in a moment, if I may. But there is the power to extend the facility to the other courts when the situation is more satisfactory. There are various machinery provisions in those two clauses which I hope are fairly self-explanatory. I come to Clause 13, which is also, although short, quite a substantial and important provision. This restates the proposition that the first offender—that is to say, the offender who has not previously been to prison as defined in Clause 13(3)—shall not prima facie go to prison, and it is only where the courts have no option, in their view, that they shall send him to prison on that first occasion; and if it is a magistrates' court they have to give the reasons why they are doing so as well. We are therefore able to repeal the First Offenders Act 1958, which is now totally encompassed in this new provision.

Perhaps under this general heading the most remarkable and experimental Part of the Bill is in Clauses 14 to 18, which deal with community service—and here again this comes from the noble Baroness, Lady Wootton. It is, I am afraid, inevitably going to be very experimental to start with. What we are proposing to do is to try it out—and this is already under tentative arrangement—in London, Durham, Kent, South-West Lancashire and the City and County of Nottingham. The whole of this idea and project is argued out in Chapter III of Lady Wootton's Report. We gladly accept this principle, not least, at any rate, because of the concept of running this idea of community service in conjunction with volunteers from every walk of life, a matter in which I am exceedingly interested in my ministerial capacity as well. We agree, and provide in Clause 43, that the community service arrangements shall be administered and looked after in general by the Probation and Aftercare Service. But this does not by any means involve their total commitment to it, and we hope very much that many voluntary organisations and individual volunteers can be brought in to assist in this matter. Nevertheless, it is another burden on the Probation Service. They have agreed to co-operate, and we are grateful to them for that.

What I hope is that if this power is judiciously used it will be a power which will not only allow the courts to keep people out of prison and indeed get useful jobs done, but also impress upon the offender that there are other needs in society than his own selfish requirements; and perhaps by the example of the volunteers and others with whom he works he will learn the satisfaction of giving to others rather than exploiting them. That may sound a little high flown, but I have been talking to some of those in the voluntary movement who have been trying to achieve this, and I do not think I am exaggerating, providing the person is chosen aright. He will have to be chosen aright because the courts will have to judge, and he will have to consent to an order of this sort being imposed on him. I am sure that that is right. We have also taken the opportunity to allow community service to be used under Clause 20 for breach of probation order, and under Clause 40 for default in paying a fine or an order for reparation, where again we think it can be useful.

I pass then to deferred sentences, and here in Clause 21 we vary slightly the suggestion in the Report of the noble Baroness, but I think stick to the main principle of it. The deferment here is in order that the offender can, for instance, pay reparation, or see if a promised change of circumstances—new job, change of place to live, perhaps he is getting married—will bring about the complete reformation he promises. Again this can only be done with his consent, and at the moment, according, at any rate, to the Court of Criminal Appeal in the case of West in 1959, it is not within the powers of the court to do it. We think that it is a useful addition to their armoury.

There is no provision in the Bill for a deferred sentence to be supervised, but one would expect that the courts would want to have a terminal report. This would probably come from the Probation Service, because otherwise the courts will hardly know what sentence to pass when the man comes back to them at the end of the deferred period. We have not further officially involved the Probation and Aftercare Service because we think that if what is really needed is a full-blown supervision or probation order it should be that which the court awards rather than a deferred sentence.

Next in this line is the fairly small provision to be found in Clause 28, dealing with habitual drunkards. There is the most revolting word for the centres that are to be set up. They are to be called de-toxification centres. I apologise for this repellent piece of English, but it seems that that is what they are to be called. There is no lack of power to set up one of these centres, and my right honourable friend the Secretary of State for Social Services is at the moment actively preparing to do so. What is needed is the power in Clause 28 for a policeman to take the would-be candidate to the detoxification centre, although, as your Lordships will see, he cannot there be detained, nor does it preclude a charge being made against him in relation to the incident. It at any rate gives an opportunity, which we hope some people will take, of undergoing a course of treatment to be cured of this major problem.

I pass on to the question of probation and bail hostels. They are not to be provided in the Bill as such because they have been going on for some years in the hands of volunteers. There have been probation hostels for people under 21 for quite a long time, and recently for people under 30. The results are very encouraging and that is the reason the Government hope to provide a further 1,700 places by 1976. But because at the moment only the voluntary organisations can provide them, we take powers in Clause 44 to allow the probation and after-care committees to do it themselves if they wish, or, I suppose, in conjunction with the voluntary organisations, and, under subsection (2), to grant aid them in so doing.

The same clause gives the same powers on bail hostels. This is a much more modern innovation. There is only one at the moment, run by a voluntary organisation, but again its results have been encouraging. The chief object of it is to keep those with no fixed address out of prison while they are awaiting trial, and it seems to provide an opportunity of giving them somewhere to live so that they may safely be let out on bail during that period. Again, the probation and aftercare committees will be empowered to provide such hostels and to be grant-aided.

Your Lordships may have thought that I missed Clause 19 and day training centres, but that is not so. It comes under the same powers in Clause 44 whereby the Probation and Aftercare Services can provide such centres, but here we are on much less well-tried ground. We have some experience from America and some work done in this country on trying to evaluate the usefulness of such institutions. It would be done, as your Lordships will see, as part of and as a condition of the probation order under Clause 19. We think that it is likely to be most useful for the inadequate offender—the person who cannot cope with the complications of life and who for the statutory maximum in this clause of 60 hours can be given intensive training and care by officers with a small case load to try to understand how better to live his life in the outside world. Those are the people who really cannot go to prison because the whole point of the operation is to teach them how to live in the world, and therefore the day training centre would seem to be a most useful addition to our powers in this respect. We are going to start, we hope, with a selected number of centres in London, Liverpool, Sheffield and Glamorgan.

I should say a word about the effect of all this on the Probation Service. Your Lordships will appreciate that a number of new and novel tasks are being placed upon them, but we are attempting to introduce these gradually to ease the impact. The Government accepted at the end of 1970 that the strength of the Probation Service would have to be increased from what was then 3,400 officers to 4,700 by the end of 1975, and that was taking account of the need for treatment within the community such as is in this Bill. Training places have now been increased at two or three polytechnics and we believe we can produce 530 probation officers next year compared to 350 last year. Of course, pay is very important in relation to recruitment, and we had this aspect very much in mind in the settlement which was reached running from April, 1971. I have no doubt, too, that the Committee under the Vice-Chancellor of Warwick University, Mr. Butterworth, will have it in mind. We are expecting his report, as I think I told the House before, some time in August. Meanwhile, I hope that Inner London as a whole has been satisfactorily sorted out with probation officers. I see the noble Lord, Lord Wells-Pestell, nod, which is a very welcome sign.

I have touched upon some of the things in Part II of the Bill, which not unwisely calls itself "Miscellaneous Provisions". It results, of course, from study and research into gaps in our legislative provisions as they exist, and your Lordships will see how miscellaneous some of these are. Nevertheless, we think it right that they should be sorted out and the proper and correct powers given to the courts. Perhaps it is a reflection upon the state of the Statute Book that these are so complicated and difficult to follow. I must confine myself to a word upon two of the other points in Part II. First of all, I want to mention Clause 29, where we are dealing with parole. I hope your Lordships will agree that parole has worked well, but, as I well know, looking at the papers in individual cases, it is a time-consuming and laborious process, and rightly so. The Parole Board examines each case with enormous care, but we cannot expand the Parole Board too far without its losing that vital consistency between cases which is so terribly important in the administration of a scheme like this.

On the other hand, the local review committees at every prison are thorough and to my mind deserving of the highest commendation. They look at all the reports which otherwise go to the Parole Board, and the proposition in this clause is that they should be allowed to recommend direct to my right honourable friend the Home Secretary in certain categories of less difficult cases, leaving the Parole Board itself to concentrate its energy on the really difficult and judgment-consuming and time-consuming ones. I think that perhaps they wish to experiment gently a little further even than they are going at the moment. I hope your Lordships will consider this is a valuable innovation as well.

Clause 30 may look a little strange. It has been subject to some discussion. It relates to a point of law which arises on an acquittal in a criminal trial. This can come up quite by chance in any case, and often one may have to wait for years before, again more or less by chance, the similar point comes up to the Court of Appeal or the House of Lords for a decision. Meanwhile, there may be conflicting judgments or dubiety about the state of the law. The provision, therefore, is that the Attorney General can refer one of these cases to the Court of Appeal, but—and this is what is important—if he does so it will be without any cost to the person who has been acquitted. Though that person may be represented, his costs will be paid. He will not stand the slightest chance of conviction or retrial, because that is specifically provided against, and so far as I can see there is no danger to him of any detriment in civil proceedings arising out of the same incident. I therefore think that it is safe for the person acquitted, both in criminal and in civil law, and at the same time an opportune way of clearing up difficulties of law.

One thing is not in the Bill which should be, and I refer to those provisions of the Committee on Juries, chaired by the noble and learned Lord, Lord Morris of Borth-y-Gest. My honourable friend Mr. Carlisle gave an undertaking in another place that clauses dealing with eligibility for jury service would be introduced in this House. They will be introduced, and I think that by then we shall have incorporated in the law practically all the Morris Committee Report—because some of it, of course, appeared in the Courts Act 1971.

My Lords, this Bill was welcomed in another place. It was exhaustively discussed. It was amended; several clauses were added, and I think it was greatly improved. We have to-day a star-studded list of noble Lords and noble Baronesses who wish to speak on Second Reading. I hope that the House and those speakers will approve the two main threads, and the hole-plugging in the Bill that I have attempted to describe to your Lordships. We know that this is experimental in places, but I hope that it will not be under-estimated as a Bill. It is one which I think takes a fairly large step forward in the right direction of our penal policy machinery. My Lords, I beg to move.

Moved, That the Bill be now read 2a.—(Viscount Colville of Culross.)

3.32 p.m.


My Lords, the whole House will be indebted to the noble Viscount for his lucid explanation of this Bill. Once more we have to consider the difficult problem of crime and punishment. I remember that the first speech of any length that I ever made in your Lordships' House was in June, 1964; and it was of course from the Back Benches. The views that I then expressed did not markedly differ from those which the noble and learned Lord the Lord Chancellor has recently expressed—though I thought that one observation he made which received a good deal of criticism was taken very much out of context. The first thing I said was that I thought the community as a whole did not appreciate just how much harm crime does in the community, and that obviously to reduce crime we must first find out what is its cause. Here I have to agree with the noble and learned Lord the Lord Chancellor; we do not know. Research work is still going on in this field. Everybody has his own pet theory: that is the decline in religious belief; it is the fact that we have "gone soft" and do not punish people like we used to; it is the Welfare State, or, if you like to put it the other way, the affluent society; it is broken homes; it is mothers going out to work instead of staying at home and looking after the children, or it is "the bomb". We all have our pet theories; but, as I say, we do not know.

One or two observations might be made on some of these theories. I agree with the noble and learned Lord that more severe punishment is not the answer. Mr. Mark has recently pointed out that there was never more crime in this country than when we had capital punishment for 200 different offences. That did not stop crime, or begin to stop it. As to the Welfare State, I think to-day it is too generally thought that whereas it used to be said that a considerable cause of crime was the apalling conditions in which at least some of our people were brought up, now that everybody has "never had it so good" and the Welfare State has cured all that, crime still goes on—and indeed increases—so that bad conditions cannot be a cause. But I think it is overlooked that we still have children brought up in slums; we still have children brought up in poverty. Your Lordships may have seen an article (I think in the Guardian) last week on a small place in a park in a Northern town, where those of 15 and upwards tended to meet in the evenings. All these are young men and women who have never had a job because they cannot get a job; the local unemployment rate is over 10 per cent. and there is no work for them. I should have thought that these things cannot be left out of account as among those likely to cause crime.

As to broken homes, while of course, I have always taken the view that no good is done by the law's pretending that a marriage which is over is not over, this does not alter the fact that almost every broken home is something of a tragedy to the children. On the other hand, we have I suppose to bear in mind that there is a section of our community which is responsible for 90 per cent. of our crime, and the remaining 10 per cent. of crime belongs to the rest. These are brought up by the same parents or parent, and in the same homes, broken or not; and they go to the same schools—because the only difference between them is that the highly criminal group is called "male" and the others are "female". Ninety per cent. and more of all crime is committed by men. If only men behaved as well as women do, the whole crime problem would be solved overnight. However, there it is.

The noble and learned Lord has said that he has no panacea, and I have no panacea, except that there was one factor which I thought, if I may respectfully say so, he dismissed too lightly; and this was the clear-up rate. When I had a long discussion about crime and its problems—indeed, many more than one—with Mr. Roy Jenkins long before our Criminal Justice Bill, I pointed out that the biggest change since the war had been in the simple fact that before the war the clear-up rate for indictable offences was over 50 per cent., so that the probability was that a man who committed such an offence would at least be caught and tried, but that ever since the war this rate had fallen. At the time of which I was speaking, if a man committed a robbery with violence in London it was three to one that he would not be caught or punished; if he did a housebreaking job it was six to one that he would not be caught or tried; it he stole something from a stationary motor car it was 12 to one that he would not be caught or tried. And we used to have young housebreakers coming up at quarter sessions and asking for 35 previous cases to be taken into account.

When one considered the reason for this state of affairs it seemed to me that the reason was a very simple one. Preceding Governments had talked with horror of the increasing crime rate, but I do not know of anything that was done in the 1950s, or up to 1964, to stop it. The cause seemed to me obvious enough: that we had never increased the police force to deal with the increase in crime; and on the day the Government of the Party to which I belong took office there were fewer policemen in the Metropolitan Police than there were when the war broke out. We were in great difficulty, because the existing police were so overburdened that recruitment was extremely difficult. There were C.I.D. officers doing a 70-hour week; the average policeman got only one weekend off in seven. Obviously, recruitment was difficult, and the question was how was that to be changed.

It seemed to us that we could change that in only two ways; first, by stopping policemen from doing everything which somebody else could do in order to let them get on with their real job of catching the criminals. So with the agreement of the then Lord Chief Justice, we stopped them standing around with halberds to greet the judge of assize; we stopped policemen carrying the mace for the mayor, acting as mortuary attendants, going around collecting maintenance money, acting as Shop Acts inspectors and Market Acts inspectors, and we greatly increased the number of traffic wardens. Secondly, we gave them modern equipment, particularly "walkie-talkies" and panda cars. The result of that was that during the subsequent years of our Government, while crime did not go down, the rate of increase steadily fell. I am delighted to see that the clear-up rate, which was then so deplorably low, has—at least, up to the last published figures—steadily gone up, and in 1970 was 45 per cent. for indictable cases. So we are getting back towards our pre-war figures.

This Bill is something of a rag-bag, if I may respectfully say so. It partakes of some of the qualities of the curate's egg. Of course we welcome in general Clauses 1 to 9, based on the Report of the Advisory Committee on the Penal System, covering reparation by the offender. I have always thought that the best punishments are the natural punishments, and if A steals something from B the natural punishment is that he should have to work hard and pay the money back. We also welcome the clauses on compensation orders and restitution orders. We would not for a moment oppose the provisions on criminal bankruptcy, but I regard them as in the nature of window dressing. I should have thought that the cases to which they will in practice apply are almost minimal, and probably a good deal less than the noble Viscount has forecast.

Clauses 10 to 13, covering sentences of imprisonment and supervision orders, perhaps belong rather to the next head. The principal head here is, of course, suspended sentences. I do not propose to inflict upon the House today a speech on suspended sentences, though I am sure it is one of the matters which we shall have to consider during the Committee stage of the Bill. It is curious how there have been changes of mind. I was always very doubtful at the time about the wisdom of mandatory suspended sentences, and about a year ago I thought that they probably ought to go. But the strange thing is that nearly everybody I know, who a year ago thought that mandatory suspended sentences should remain, now think that they should go; while nearly everybody I know who a year ago thought that they should go, now thinks that they should stay. However, we can consider that on the Committee stage of the Bill.

We then come to Clauses 14 to 18 and 21 to 23, for all of which we are so much indebted to my noble friend Lady Wootton of Abinger and her colleagues. Here indeed are the first real intelligible proposals alternative to imprisonment which have been made, and it is that of which we stand so much in need at the present time. I shall not say much about this subject to-day, because the whole House will wait to hear what my noble friend has to say about it, and about how far she thinks that the provision made for community service orders, day training centres, deferred sentences and power covering property used or intended for crime implements what she and her Committee had intended.

The only comment I would make is that, while these day hostels and so on are admirable, many of them call for further work by probation officers. Here many of us are not at all happy. We are not happy with the present rates of pay, ask the noble Viscount whether it is not a fact that at the present time in London, for example, there are more probation officers leaving the service every month simply because they cannot live on what they earn, than are being accepted for training. What some of us find so difficult to understand is that, with the cost of prison now being about £24 a week, and the cost of a man on probation being about £1 a week, it seems such a very false economy to stint matters for probation officers.

Part II contains 18 clauses of miscellaneous provisions. This, again, is ragbag stuff and partly window dressing. I suppose that increased penalties for firearms offences is the sort of thing a Party which made so much of law and order at its election has to do. But if my information is right, the average sentence imposed for firearms offences is about 4½ per cent. of the sentence which could in law already be imposed, and, if that is so, what good it will be to increase still further maxima which are practically never employed, I do not know. I am glad that the noble Viscount mentioned Clause 30, because I think that that is an odd one. A man is acquitted on a very serious charge, which I suppose might include murder. The man having been acquitted, the Attorney General then says, "There is a point of law about this, and I am going to the Court of Appeal to ask them to say that you ought to have been convicted. You can come along, old chap, if you want to". If they find that he ought to have been convicted it will not mean his conviction, but nobody seems to have given very much thought to the reputation of the unfortunate person concerned.

We then come to Parts III and IV, containing administrative and supplementary provisions, and I make half a dozen comments on them. I have suggested that the Bill has something of a rag-bag character, and we have read in the Press that there are other proposals coming along at some time for altering some part of our criminal process. As I understand it, these will be largely directed towards getting convicted some 6,000 people who are acquitted by juries, because the police say that they are much better judges of guilt or innocence than juries. This is out of a total of 1,500,000, and if you alter the process you have to think of the effect it will have on the rest of the 1,500,000. I question whether the time has now come when, instead of a rag-bag process, we ought to have a Royal Commission on the whole of the criminal process.

Secondly, I have already stressed the importance, in my opinion, at least of trying to get the proportion of police to criminal offences committed back to what it was before the war. I shall be grateful to know anything the noble Viscount can tell us as to when, if ever, he thinks we shall have as many police in relation to the crimes being committed as we had when the war broke out.

As regards method of treatment, as I have said we are immensely indebted to my noble friend Lady Wootton and her Committee; but this, I hope, is only a start. We still have about 14,000 living three in a cell meant for one. It would, I suppose, be administratively impracticable, but I should have thought that the difference between being one of three with a pail to share at night, and having a cell of your own, would almost merit a shorter sentence in the first case or a longer one in the second.


My Lords, the figure is 12,000.


But why is it that we have a so much higher proportion of our citizens in prison than I understand is the case in almost every other Common Market country? It was that very experienced judge, Lord Justice Lawton—I do not know whether he was born in prison, but he is the son of a prison governor—who recently said: Loss of liberty is an inappropriate, useless and expensive sanction for about three-quarters of those who now find themselves in custody. I do not know whether the Government agree with that view. Have we discovered why Holland decided to make a rule that from a certain date sentences were to be halved, and has not found as a result that crime has gone up? I hope that this Bill will do something to reduce prison numbers, but, as I understand it, the abolition of mandatory suspended sentences will increase the prison population by about 2,000. I ask the noble Viscount whether he agrees with that view. May I also seek what further steps are being taken in relation to probation officers?

There are two notable omissions—perhaps three—from the Bill. The first is about bail; and, of course, a large proportion of those now in prison are there only because they are awaiting trial and have been denied bail. This is something which we shall have to consider at Committee stage. The textbooks tell us what considerations ought to be taken into account when deciding whether to grant or refuse bail. There is something to be said for these being codified, where judges and magistrates alike can see them.

We are equally disappointed that there are no real provisions in relation to legal aid. Mr. Justice Widgery (as he then was) and his Committee laid down the criteria. We all know what a lot of work successive Lord Chancellors have done, in the way of holding sentencing conferences and so on, to try to make sentences between the thousands of magistrates' courts that sit every day more consistent. But while there are some magistrates' courts which regularly grant legal aid, there are one or two stipendary magistrates' courts which think that their first duty is to think of the public purse and they take a different view. Perhaps we ought to consider on the Committee stage of the Bill whether we ought to put something into the Bill, where everybody can read it, what I have referred to as the Widgery criteria for granting or refusing legal aid.

I regret that the Bill does not contain anything about complaints against the police. There is no doubt that among sections of the public, if not the public as a whole, confidence in the police is not as great to-day as it used to be. If one wants to make a complaint against the police it is decided by policemen, and only by policemen. When I raised this matter after we took office I was told that it was only six months since we had had a new statutory provision whereby the Home Secretary could call in a senior officer of an outside police force, and that this was so recent that I ought not to raise this old question again so soon. That was eight years ago, and we are still in the position that any complaint made by the public against a policeman is decided only by the police. I have felt for a long time that the police will not have the credit, which I have no doubt they deserve in this country, so long as this situation continues.

There are a few questions which I would pose. First of all there is the matter of time spent in custody. This is the sort of thing about which lawyers are ignorant. We do not know what happens to our clients after they leave the dock. Many months ago a man wrote to me from prison. He had been sentenced to eight years for forgery from which he gained nothing. It seemed rather a heavy sentence. When he wrote to me he pointed out not merely the number of factual mistakes made by the Court of Appeal but the fact that he had been kept waiting to be sentenced so that somebody else could be sentenced at the same time. While his time in custody counted towards his sentence, it did not count either towards his one-third remission for good conduct or his eligibility for parole.

On going into the case I felt that this was wrong. So I put down a Question for Written Answer in your Lordships' House inquiring: Whether time spent in custody as a remand prisoner counts towards (a) sentence, (b) remission and (c) eligibility for parole; and if not why not. The Answer I received was: Under Section 67(1) of the Criminal Justice Act 1967 the time which a prisoner in England or Wales spends in custody on remand before sentence counts towards his sentence. Under the Prison Rules the time spent in custody after conviction but before sentence attracts remission. Time spent in custody before conviction does not. The period spent on remand does not count towards a prisoner's eligibility for parole. Section 60 of the Criminal Justice Act 1967 provides that a prisoner may be released on licence after he has served not less than one-third of a sentence or twelve months, whichever expires the later, and that the period of one-third of sentence is to be calculated from the date of conviction. My right honourable friend the Home Secretary is reviewing the provisions about remission."—[OFFICIAL REPORT, 20/1/72, cols. 261–2.] It will be observed that the last part of my Question—that is, "if not why not?", was not answered. There was a good reason for not answering it, and that was that there was no answer.

I asked honourable friends of mine in another place to put down an Amendment on this point. The Government said they could not suggest any reasons to support this anomaly. They thought that in all cases it should count. While that relating to eligibility for parole would have required legislation the other could have been dealt with by a prison rule. The cause of the difficulty would appear to have been an ultra vires prison rule which had been in force for a long time. The Government, having given an undertaking on the Committee stage of the Bill, moved an Amendment at the Report stage to rectify the position so far as eligibility for parole was concerned. What I should now like to ask is, "Are we sure that the position in regard to remission is going to be dealt with by a change in prison rules and, if so, when it is anticipated that the change will be made?"

A point was raised by Miss Shirley Williams, the shadow Home Secretary in another place, as to the position of third parties on deprivation of property used for crime; and encouraging noises were made by the Minister dealing with the Bill. May I ask whether the Government have had any further thoughts about that? Another point, which was raised on the same day, was whether or not there ought to be a social inquiry report before a supervision order was made. The Minister said: I am prepared to consider whether it is suitable that similar notice should be given to the courts with regard to suspended sentence supervision orders. I accept that, if we draw to the attention of the courts the appropriateness of their considering a social inquiry report before making a probation order, it would be right to do so with regard to the making of a suspended sentence supervision order.… I am prepared to consider whether I can meet the hon. Lady's point in any other way".—[OFFICIAL REPORT, Commons, 15/6/72; col. 1963.] Perhaps the noble Viscount, Lord Colville, can tell us something about that. I welcome his news that we are to receive Government Amendments to implement the Report of the Morris Committee on jury qualifications.

The last point I should like to raise—and I should like to hear the view of the noble and learned Lord, Lord Morris of Borth-y-Gest—is this. Is it right that it should be impossible to appeal against an interlocutory order in a criminal case? I have no doubt that such appeals should be strictly limited and discretionary. The point I have in mind is this. Like most lawyers, I cannot approve of the increasing tendency of those who prosecute to prosecute somebody not for what he has done but for conspiracy to do it. This is because our law of evidence makes the prosecution easier. But if there are to be these grave charges then a man so charged ought to be given proper particulars of what the prosecution are going to allege he has done. The House of Lords has said this two or three times. I am told that there is an agreement among the Judges of the Central Criminal Court that, however poor the particulars given may be, they simply will not order further particulars. There is no right of appeal and therefore no way in which the declared intention of your Lordships' House can be carried out. Might it not therefore be wise to provide a right of appeal, however limited, to the Court of Appeal or the Divisional Court against a refusal by a judge to order further particulars?

My Lords, I have mentioned the Committee stage. This Bill was in Committee in the other place for, I think, 25 or 26 days, and it took four days for the Report stage and Third Reading. From what I have said, it may sound as though the Bill is qualifying for a place as another Bill like the Industrial Relations Bill or the Housing Finance Bill. Of course, any noble Lord can put down any Amendment he likes, but may I say that it is my intention, from this Bench, to try to limit my Amendments to a dozen, or a few more, and I see no reason why the Committee stage should take more than two or, at the most, I think, three days. But there are some points of substance which we shall obviously wish to raise. I give a welcome to the Bill as a whole, and in particular those parts which implement the Report of the Committee presided over by my noble friend Lady Wootton; I hope that it will not occupy your Lordships a great deal of time in Committee.

4.1 p.m.


My Lords, I also should like to express a general welcome to this Bill, and in doing so would join with the noble and learned Lord, Lord Gardiner, in expressing our gratitude to the noble Viscount for the clarity of his most helpful exposition of this Bill. I propose to make only a few observations on just one or two of the provisions of the Bill. In particular, I welcome all the early provisions in regard to the powers of the court to make compensation orders. In times past there was a great reluctance—and an understandable one—to permit any kind of stifling of a prosecution by means of the making of a money payment. The result of that was that courts set themselves against allowing a position under which a willingness to pay compensation could be regarded as an answer to a criminal charge. Courts made it clear, for example, that a man could have an intent to defraud even though he might have had an intention to make compensation to his victim in the future. Compounding a felony could be committed if someone accepted money for helping a person to recover his stolen goods without prosecuting, or giving evidence against, the felon. But, my Lords, none of the proper considerations which led to the rules against compounding felony are in any way compromised by endowing the courts with an ability to make compensation orders.

Many of your Lordships have had experience of sitting as magistrates; many of your Lordships will have had experience, as I had for many years, of sitting in what we used to call the courts of quarter session. If your Lordships' experience accords with mine, over and over again, when we retired to consider what was the right order to make in the case of somebody who had been found guilty, one magistrate would say, "But what about the poor person whose property was damaged?", or "What about the person whose goods were stolen?", or, "What about the person who suffered injury? Can we not make an order requiring some reparation from the accused in favour of the person who really is the victim of the crime?". I think we should all feel that that should be so. There is a desire to achieve the right result; there is a desire to vindicate the law, to preserve order; but linked with those there must be a desire to help, if possible, the person who has been injured without imposing upon him the necessity to bring a civil action.

As magistrates, again if your Lordships' experience accords with mine, we found over and over again that the provisions were inadequate. The word used by the noble Viscount was, I think, a happy one: he said they were "haphazard"—and so they were. The powers under the Criminal Justice Act of 1948 were incomplete. There were powers under the Forfeiture Act; and under that Act the powers would be execised upon the application of any person aggrieved immediately after the conviction. My Lords, we found over and again—and the noble Viscount referred to this—that the person aggrieved might not be present. There would be no occasion, often, for him to be present. The court might feel eager to make some compensation order in his favour, but feel thwarted in their desire to do so. So I submit that it is wholly sensible that, in addition to dealing with the offender in such way as the circumstances warrant, a court should have the power to order compensation. That, of course, would not preclude the bringing by a victim of the crime of a civil action should he feel that necessary or should he feel able to bring it.

I would further express my welcome of the provision in Clause 10 of the Bill which ends the mandatory requirement that sentences up to a period of six months must be suspended. There has been much discussion whether, if this clause is passed, there will be an increase or not in the prison population. I do not think that any consideration of statistics can give any positive answer. We all desire a reduction in the prison population, but primarily we desire it for the reason that we hope there will be a diminution in crime. But as regards a prison sentence—again if your Lordships' experience as magistrates and on the Bench accords with my experience in quarter sessions over many years, my past experience as a judge and my knowledge of the way in which judges' minds work—I am sure that, when considering sentence, it is always the wish of a judge or a court to avoid sending someone to prison if it can possibly be avoided. We have in this Bill Clause 13, to which the noble Viscount referred, which says: A court shall not pass sentence of imprisonment on a person who has attained the age of twenty-one and has not previously been sentenced to imprisonment unless the court is of opinion that no other method of dealing with him is appropriate; … That is all very good: I entirely accept it. But here is no startling new pronouncement. That, in my view, merely sets out what has been the recognised principle for years of, I think, every judge and every magistrate. Judges struggle to avoid sending people to prison.

But when I use that expression, it is not the judge, it is not the magistrates, who send somebody to prison: it is the community. If somebody has been found by magistrates or by a jury to be guilty of an offence, it is for the magistrates or the judge, in the name of the community, to decide what is right. It is not the personal wish of the judge or of the magistrates; it is their solemn and, generally, their unenviable duty to decide in all the circumstances what is the right thing to do. Therefore, if your Lordships agree with me that that is the attitude of all magistrates and all judges, surely there is no need any longer to have a provision which cramps and curbs the discretion of magistrates or judges. My Lords, magistrates are chosen because it is thought that they have great and useful experience of affairs and that they are fairminded and rational. If there are some cases where a short sentence is desirable, is it right to curb the magistrates' powers and say that they shall not pass that sentence? We are told that short sentences are undesirable. Probably they are, but can we say that never is there a case in which a short sentence is right and ought to be imposed? If that is so, I suggest to your Lordships that there is no longer any need to keep this provision of mandatory suspension of a sentence. We must trust the magistrates and the judges.

My Lords, I wish only to add a word in regard to the provision in Clause 30. Here is indeed a very interesting provision. In the past we have been accustomed to a system under which if somebody is acquitted in a magistrates' court there may be an appeal by the prosecution to the Divisional Court; and although the man has been acquitted by the magistrates the Divisional Court may send the case back with a direction to convict. We have had the situation whereon indictment someone is convicted by a jury, the case goes to the Court of Appeal, and the Court of Appeal decides to quash the conviction. There may then be an appeal to your Lordships' House. But until now we have regarded a verdict of acquittal by a jury as something possessing finality, and here I must confess to sharing the anxiety that was expressed by the noble and learned Lord, Lord Gardiner. Somebody is acquitted by a jury; then there may be a point of law taken on the initiative of the Attorney General to the Court of Appeal, and there may afterwards be a reference to this House to express an opinion on a point of law.

This House now possessing a freedom that it did not formerly possess in regard to its decisions, there have been cases recently where we have felt that a case had been decided on the basis of the existing law but we have decided that in fact the law was otherwise. We have wondered, could there be some system of declaration in regard to the law having prospective operation? So far there exists no such power. Here is a very interesting proposal to introduce that in the criminal field. Somebody is acquitted by a jury. A point of law goes to the Court of Appeal. The acquitted person may appear if he so wishes, and I think that there are provisions in the Bill that all his costs will be paid.

It may be said that if the point of law is decided against that person that shows that he should have been convicted; and what hardship is there if that is shown, even though he will be free for the future? On the other hand, we have always regarded a verdict by a jury of "Not guilty" as being sacrosanct. I confess that here I find a balance of advantages, and I find it very difficult to know where the real balance comes down. Will it be possible for the noble Viscount in his reply to tell us whether there could be some safeguards for an accused person, in order that if in a case that has achieved great prominence someone has been acquitted, the result finally will not be that the public will say "Well, he is very lucky. He was acquitted, but it is now shown that really he was guilty."? My Lords, in regard to the proposals in this Bill which owe their origin to the thought and work of the noble Baroness, Lady Wootton of Abinger, I express my warm approval. Like others of your Lordships I look forward to her speech. These are experiments. They are interesting experiments, and I am sure they are worth making. I wish them well.

4.17 p.m.


My Lords, in addressing your Lordships' House for the first time, may I beg your Lordships' traditional indulgence which is shown on these occasions. I may say that this is no formal request on my part. Having been concerned with the criminal courts for the last 14 years or so as a member of the Bar, it is not altogether easy for me to adopt the traditional maidenly posture suitable for this occasion. And it is impossible to consort with criminals, and, on the other side of the fence, with the police who get them to the courts, and persons such as probation officers who deal with them after they have been convicted, and on an occasion such as this to disguise one's well-held opinions.

I am also very conscious that there are in your Lordships' House a number of noble Lords, and indeed noble Baronesses, who have made long and deep studies into the whole question of penology. If I single out the noble Baroness, Lady Wootton of Abinger, it is because this Bill owes so much to her sub-committee and indeed to the noble Baroness herself. On a more personal note, I remember that the first time I ever went to the Bow Street Magistrate's Court to defend an errant motorist the noble Baroness was presiding in Court 3 upstairs. On the first occasion that I ever prosecuted a juvenile in a juvenile court she was presiding there, too. My Lords, her treatment of my clients, the motorist and the juvenile, and counsel, was a model for our deliberations—kind, but firm.

As a practitioner I welcome this Bill. No one will pretend that it will clear the gaols or reform the criminals overnight; but on the basis that a few offenders are evil and selfish, rather more plain stupid, and the vast majority of inadequate personality, the Bill will add considerably to the choices open to a court when it comes to decide how best to deal with them. It will, as it were, add several more strings to the bow. Until now the alternatives open to a court when dealing with an offender were but few: discharge, probation, a fine, or imprisonment, until recently immediate but now immediate or suspended. In addition, under this Bill the courts may now impose probation plus attendance at a day centre, a suspended sentence accompanied by a supervision order, a community service order, a compensation order or a plain deferment of sentence.

In passing, I venture to suggest that a great deal of the success or failure of these new and radical provisions will depend in no small measure on the Probation Service. I have met a great many probation officers in the course of my professional career at the Bar and I yield to no one in my admiration for that body of men and women. Not only will the Service have to be expanded, but it will have to employ persons of the highest calibre that this nation can afford. Most of these alternatives to prison will become useless "soft options" of doubtful value or even of no value at all unless the individual officers are competent enough and have enough time to devote to the offenders who are placed in their care.

If I may, I will now turn to some of the provisions of the Bill and the remarks I make will come from a lower plane than was the case with those noble Lords who have spoken before me. It is because I come from a lower plane myself. First, to deal with the compensation orders, not only is there something which is essentially appropriate in the concept of the criminal compensating his victim, but I feel that the payment of compensation by instalments as provided for in this Bill may be much more reformative in its effect than the payment of a fine by the same person and by the same method. However, this power to award compensation has been held by the courts in one way or another for many years. Up till now, in my experience—and I bear in mind what the noble and learned Lord, Lord Morris of Borth-y-Gest, has said—the courts have been sparing in its exercise. The report of the Widgery sub-committee discusses the matter in paragraph 24 and figures are given in Appendix E.

Taking the matter shortly, in respect of indictable offences in 1969, only 23,800 compensation orders were made and only 138 of such were in respect of the offence of malicious wounding. Even on these incomplete figures, it is plain that the courts are reluctant to make such orders. I myself have had experience of such reluctance, particularly when prosecuting in forged currency cases initiated by the Bank of England. In these cases, most commonly an individual or a gang descends on an area or a town and passes off forged bank notes, usually £5 notes, by buying some items in such crowded places as shops, supermarkets, public houses or betting offices, pocketing the change in valuable and valid currency. If, as frequently happens, the gang is eventually caught and found to be in possession of considerable sums of cash, it then falls to the court to allocate such cash by way of compensation. In my experience, the police seldom help by establishing exactly the identity of the companies who are the losers and equally the police do not inform the individuals of their rights under Section 4 of the Forfeiture Act to which reference has already been made. The courts are usually keen to start the next case and are unlikely to intervene in the matter unless they are asked to do so.

This is really the nub of my argument. Compensation orders are unlikely to become any more frequent unless it is either the duty of somebody to determine whether the conditions exist under which an order should be made and if they do to ask the court to make it; or, alternatively, if it is in somebody's interest that an order should be made. For that reason, I regret that the Committee recommended in effect in paragraph 79 that an application by or on behalf of the victim should no longer be necessary except in certain case. But, if I may say so, even worse, Clause 1 of the Bill excludes the victim from playing any part in the proceedings so far as compensation is concerned. There will be a situation, therefore, where the victim will have no right of application to the court, let alone audience, over the matter of compensation or how much may be awarded to him; and, more important, the defendant will have no right to challenge by normal methods any claim put forward on behalf of the victim by the prosecution or the court of its own volition. I do not consider that the courts will become any more enthusiastic about making such orders than they are now, merely by repeating the old law substantially in the same form but written differently. However, this is something which your Lordships may consider when the Bill is discussed in Committee.

While on the theme of reparation, I should also mention Clause 7 of the Bill which provides for criminal bankruptcy orders. Where by means of one large or a number of smaller, frequently complicated offences, the offender has pocketed a large sum of money, under this clause it will be made easier for the assets to be recovered (from wherever they may have been concealed) and redistributed among the victims. At the same time, there is much to he said for imposing the order at the conclusion of the criminal trial when the matter is still fresh in the minds of those who can best throw light on the situation, such as the police officer who has been in charge of the prosecution. At such a moment—that is to say, at, or immediately after, conviction—it is often the fact that the morale of the individual prisoner is at its lowest and he is less in a position to be able to take avoiding action than he will be if at a later stage the victims take the more normal action through the civil court.

My only doubt is as regards the thresh-hold figure of £15,000. I was interested to hear the noble Viscount, Lord Colville, say that the figures suggest that there will be 100 such cases in a year. While one appreciates that the authorities are anxious not to overload the resources of the bankruptcy service, I should have thought that to lower the threshhold to, say, £10,000 and if necessary to expand the bankruptcy service as quickly as possible, would make for a much more worthwhile experiment. Nevertheless, even at this figure it is going to be a good and worthwhile experiment and I wish it success. The Bill contains a number of excellent provisions which I should like very much to discuss but time does not allow.

I welcome Clause 10 which abolishes the mandatory suspension in certain circumstances of short-term imprisonment. This mandatory suspension has led to anomalies and injustices, and I should have thought that if the proper people are appointed as judges or magistrates and properly trained, they should then be entrusted to get on with the job for which they are appointed unless and until they go wrong when the situation can be rectified by a court of appeal. But while on this matter of fetters on the discretion of the court, may I express regret that opportunity has not been seized to repeal Section 3 of the Criminal Justice Act 1961. This is the provision which in general prohibits a court from passing a sentence of imprisonment on a person aged between 17 and 21 and who is thus eligible for borstal training unless the sentence is one of six months or less or three years or more.

Over the last ten years, this one measure has been one of the most frequent sources of complaint by the courts, not least because it leads to so much injustice. One can think of many examples; but the prime example is where there are two offenders, one perhaps aged 23 and one, perhaps the ringleader, aged 20. There is a fetter upon the discretion of the court and it may be that, taking all the circumstances of this particular case into account, a sentence of two years would be proper to pass on each. In the case of the 20-year-old, if the judge is of the opinion that he is unsuitable for, or is not in need of, borstal training, the only sentence that can be awarded is either the derisory one of six months or the over-severe one of three years. Again and again I have heard judges complaining of this fetter upon what they consider to be the right course to adopt. Incidentally, the injustice is reflected in the sentence which is passed on the older boy who would normally have, say, two years but who, because of parity, has to be given whatever sentence the 20-year-old receives. I regret that the opportunity to abolish this particular clause in the 1961 Act has not been seized upon. It may be that when the noble Viscount, Lord Colville, has time to reflect upon matters he will include it in the Bill at a later stage.

I refer lastly to Clauses 14 to 18 which provide for community service orders. The idea of these is brave and novel, at least in this country, and it is attractive to reflect that the subject of such an order may be treated in the most comprehensive manner provided by any penal system. The punitive element is provided by deprivation of leisure and the obligation to work for the community. Work or reparation within the community may produce a different outlook on the part of the offender so that he becomes an honest citizen. However, the scheme bristles with difficulties. On a practical note, much will depend upon the probation officer or whoever assigns the tasks or supervises the work. It will not always be easy to keep somebody up to the task of working for free if he is disinclined to work for gain. The allocation of work in itself will require finesse. I foresee difficulties, for instance, if a burglar is assigned to the Meals-on-Wheels service and takes the opportunity of "casing" a number of "joints" for future reference. Will householders or organisations be told that some of the volunteers upon their premises are in fact criminals? If they are not, and the so-called volunteers help themselves rather than the persons they are supposed to help, I can imagine irritation on the part of the losers and their insurance companies. I do not wish to be accused of undue levity. These clauses bristle with difficulties and I very much hope they will be overcome.

My Lords, I do not think it inappropriate to end—particularly in view of the remarks of the noble and learned Lord, Lord Gardiner—by pointing out that most of the innovations contained in this Bill take effect only on the conviction of the offender. The fact remains that less than half of the offences committed are cleared up in the sense that someone is arrested, and of those tried on indictment less than half are convicted. These reforms therefore concern only a small proportion of the criminal element at large. In a sense, therefore, it can be said that the discussions before your Lordships' House are putting the cart before the horse. I mention this because unease over our criminal procedures both in and out of court is mounting, and has recently got to the stage where responsible people feel bound to voice their disquiet. I hope that the Government will see to it that the momentum of criminal law reform is kept up. These reforms are welcome, but the best deterrent to crime is the certainty of detection and conviction. We must continue therefore to press ahead to ensure that such detection and conviction is more the norm than it is now.

4.34 p.m.


My Lords, my first and very pleasant duty is to congratulate the noble Earl Lord Mansfield, on his maiden speech. It would be easy enough to do this if I were to confine myself to what he has described as his maidenly posture and to his elegant phrases, but I find myself fully supporting so much of what he has said that my task is made doubly easy. I hope that we shall hear him very often in the future; indeed, in view of the large measure of agreement between us I am almost tempted to express the hope that we shall some day hear him from another part of your Lordships' House.

My second and very pleasant duty is to thank the noble Viscount, Lord Colville of Culross, and a number of other noble Lords who have made extremely generous references to the work of the Penal Advisory Council in the preparation of this Bill, and in particular to the reports prepared by the two subcommittees presided over respectively by the Lord Chief Justice and myself. While the noble Viscount made frequent use of my name, I hope that your Lordships will understand that this was only a shorthand to refer to the whole of my committee without whose devoted skill and service no such Report could possibly have appeared.

If I make rather scant reference to the first part of the Bill this is simply because there are others very much more competent than I to discuss these provisions, and because others—notably the Lord Chief Justice himself—have been more closely associated with the drafting of the Report on which they are very largely based. I will therefore only say that I welcome, as I think all of your Lordships will, the provisions relating to compensation and restitution. They will be invaluable in clearing up much confusion in the courts and in doing away with a number of injustices. So far as the criminal bankruptcy provisions are concerned, I think the authors would agree that these are fraught with considerable difficulties; that they are highly imaginative provisions which may equally be fraught with considerable potentialities for fruitful use.

I turn now particularly to the clauses which are based on the report of my subcommittee. On December 2, 1970, in the course of a debate on overcrowding in prisons, the noble Lord, Lord Windlesham, on behalf of the Government, discussed fairly briefly—time was short—the contents of the report on non-custodial penalties. At that time, on behalf of the Government, he gave unqualified acceptance to two of our less important provisions and a rather halfhearted acceptance of the third. Our score at that time, I therefore reckoned, was something between two and three; but it is fair to say that a number of our recommendations were not discussed, either because time was short or because, as the noble Lord, Lord Windlesham, said, they were to be the subject of further examination. I now find that our score has gone up from something under three to six. The Government have in principle, though often with modifications, accepted our recommendations on community service, on supervision orders for people who are under suspended sentence orders, on deferred sentences, on the forfeiture of property used in connection with crime, on disqualification from driving for persons using motor vehicles in connection with crime and, of course, what we fully expected, on the extension of the probation hostel system.

My colleagues and I feel greatly rewarded for the many hours that we spent, in the recognition that has been given to the product of our labours. Speaking only for myself, I must say that when one gives advice and that advice is accepted I always find it a rather alarming experience. Fortunately, in that sense, it does not occur very often. I should like to say a few words about the most important of our recommendations which is written into the Bill, the one which deals with community service orders. I am very anxious that your Lordships should not misunderstand at least what was our intention and, from what the noble Viscount said, is the intention of the Government in including this provision. I can perhaps illustrate the possibility of misunderstanding by recording that on the date our Report was published the B.B.C. asked for an interview with myself. The interviewer, unfortunately, was not very happily at home in this kind of topic, and the opening question was: "You are not proposing, are you, to put convicts to work upon the roads?" This immediately called up an image of men with broad arrows on their clothing working in chain gangs on the highways. The interview, which was very short, as they always are, was a disaster because I had to spend the whole time explaining that this was not what we were proposing, but that we were hoping that the work provided would not be punitive or humiliating in its own nature. The penalty involved is the deprivation of leisure, and nothing else. I was particularly glad to hear the noble Viscount say that it is proposed that people who are subject to these orders should work side by side with volunteers. I think it is possibly one of the most important aspects of the whole proposal that people who are doing this kind of work, whatever it may be, find that other people are doing it because they think it worth while. They may make friendships with these other people, and they may possibly in consequence—this is our most optimistic hope—get a rather different outlook on their role in society.

I think it also needs to be made clear that it is not proposed that the probation officer should be supervising the work on the job. This is somebody else's business. This is the business of the person who, in any case, would be supervising the volunteers. If the person who is acting under a community service order sits down under a tree and smokes a cigarette all the time he is supposed to be doing something in the hospital gardens, then it is for the supervisor on the job in due course to report the matter back to the probation officer, and for the probation officer to take what action he thinks fit. We do not propose to make probation officers into foremen. I hope that this will he widely understood.

I should like also to say that something of this kind on a voluntary basis is already being done with offenders. Some probationers are doing it at the instigation of their probation officers, and doing it quite happily and successfully. And in some open borstals, young men are going out to give service to the community, as, for instance, in Cheshire Homes, where they help to bath totally disabled people. It is found that the sight of persons far more disadvantaged than they are themselves, and the opportunity of helping such people, has a very beneficial effect on their attitudes. It is that kind of thing that we are thinking of in making these proposals.

The Government are proposing to extend the maximum length of the community service order—I think they are doubling the maximum number of hours that we suggested. I do not myself have any strong views about that. But I want to say that we made a few references, in passing, to the New Zealand experiment of week-end residences, where young men engage from these centres in various forms of community service at the same time as having educational discussions, particularly on social topics. Conditions in New Zealand are of course very different from those in this country because of the smaller population and the large rural element in the economy, but we were impressed with what we heard: we did not see it at first hand. I hope that if the number of hours of community service is going to be extended, perhaps some of it may be done at week-ends in institutions of this kind.

We particularly welcome the possibility of using a community service order for fine defaulters. In another context, we were much concerned about fine defaulters going to prison, and this might be an opportunity for keeping a class of persons out of prison who ought not to be there, who gain nothing by being there, who might alternatively get some real constructive benefit and, in a way, repay their debt to the community by engaging in community service. We do not think that the service need necessarily be related to the offence. I agree with the noble Earl, Lord Mansfield, that none of us wants the burglar who burgled our house to come and put things straight again; and none of us wants somebody coming into our homes to help decorate, when perhaps we are unable to do it ourselves or to get somebody to do it for us, who "cases the joint". But I think that most of the people who take round meals-on-wheels will not find the "joints" they visit worth "casing". So that particular fear is perhaps unnecessary.


My Lords, I am extremely interested in what the noble Baroness is saying, and I think this is a most imaginative attitude. I wonder whether she would agree with me that one of the attractive things about this proposal—I personally think there is a limit to the good one can do by simply sitting around and talking together—is that here people are doing things together. I think that may create a much more helpful attitude. I agree with the noble Baroness that the punishment element should be satisfied by the deprivation of leisure. After that there is no reason to pick out work which in itself is particularly unattractive.


I am obliged to the noble Viscount for his support. This is an original provision in this country, but it is not without parallel abroad. I always recall right in the centre of Australia in a juvenile court two young boys who had noticed that the collecting box for the Flying Doctor Service had a rather fragile front—and a glass front so that everybody could see when they were intending to put in 5s. that everybody else had put in £1. They noticed this, and took the opportunity, when it offered, to break the glass and steal the contents. The juvenile court at Alice Springs, after long deliberation (how greatly I envied this when I thought of our metropolitan lists of 40 cases! decided that these boys should pay for what they had done by spending their Saturday afternoons doing chores for the Flying Doctor Service. So there are these parallels abroad. But in the majority of cases I do not think there would be this close connection between the nature of the offence and the nature of the work undertaken. The last thing I want to say about this subject is that I am delighted to hear that plans are already afoot to put these experiments into operation in five areas. They are not likely therefore, like so many provisions on our Statute Book, to be monuments engraved in stone and left there.

I should like now to say a word or two about those provisions which were not based on the Report that I have mentioned but which were thought up by the Government all by themselves. The most interesting one is that for day centres. In principle, I think we should welcome this; but I hope that a great deal more thought will be given to what is to be done in the centres, who is to go to them and who is to conduct the programmes there. I notice that in the Committee stage in another place (I am referring to the OFFICIAL REPORT for the thirteenth day at columns 530 to 533) the Minister of State referred to remedial education in reading and writing—which is obviously very desirable—and to the ability to live a normal life in society, get a job and hold it down. He also referred to education in the use of simple tools and the basic maintenance of electrical appliances. I did not find any reference to social responsibility or crime. I should like to add here that in my many recent visits to penal institutions in this country and abroad I have begun to form the conclusion that the one unmentionable subject is criminal behaviour.

I come now to one or two other provisions. First of all, there is the firearms provision. As your Lordships know, perhaps to your cost, from the many Questions that I have put down in this House, no one is more anxious than I am to stop the illicit acquisition and the dangerous use of firearms. I do not know that this increase in penalties will have any great effect, but I have no particular views about it either way. I should much rather see more stringent regulations more effectively enforced. I see that the increase in penalties was referred to in another place as a "cosmetic provision". This struck me as a rather odd adjective in this connection. I had not thought before that the use of cosmetics Was a phoney deterrent; but, come to think of it, as other noble Lords to-day have used the term "window dressing" as an alternative to "cosmetics", there might he something in it.

As to the abolition of the mandatory suspended sentence, I think I am almost the only one who has so far spoken in this debate who is sorry to see the mandatory provision go. The courts, and particularly the magistrates' courts, have been rather unjustly accused of abusing this provision, and very superficial inferences have been drawn from the fact that since suspended sentences have been introduced the proportion of fines and probation orders has gone down. To judge the effect of the suspended sentence is a very complicated operation. You have to know how many of these sentences were eventually activated; how much longer they added to the period spent in prison; what would have happened to people who would have been put on probation or fined had the suspended sentence not existed; how many of these would have committed further offences and been imprisoned, and so on. I think that it was a good provision because it prevented a number of people from being put into prison when there was at least a chance, and in some cases a very good chance, that prison was not necessary.

I am completely foxed by the proviso which is attached to the abolition of the mandatory order. Clause 10(3) of the Bill seems to me to say: "You shall not put off until to-morrow something that you would not do to-day if you could not put it off until to-morrow. I find it very difficult to work out how one would carry out this proviso, even in one's ordinary life, and still less in a court when passing sentence. But, with due respect to my noble and learned friend Lord Gardiner, I must say that I have been absolutely consistent in upholding the mandatory suspension from the beginning.

This Bill will, we hope, keep a certain number out of prison. It will not empty the prisons: and may I say that putting people in prison is a very poor way of keeping people out of prison. I hope that remark is not as silly as it sounds. So far as the prisoners themselves are concerned, it is true that a very high proportion—perhaps nearly 80 per cent.—of those who go to prison for the first time do not go back; but it is also true that every time a prisoner goes back to prison this increases progressively up to a very high level his chances of going to prison yet again. It is also true, if you think not of prisoners themselves but of the public outside, that undoubtedly the fear of a prison sentence is a deterrent to people who calculate rationally, usually about not very serious offences. I have no doubt, for example, that many of your Lordships would be a little more careful than perhaps you normally are about your parking and speeding if you were convinced that should you be detected in an offence of that nature you would lose your licence for life and be incarcerated for five years. I am sure that in that kind of offence a prison sentence is a deterrent; but there are many cases where it is not. It is not a effective deterrent to the professional, who takes it as an occupational risk and thinks that he will get away with it anyway; it is not a deterrent to the inadequate who cannot really calculate his actions at all; and it is not a deterrent to a person who commits a crime (and often a very serious crime) on impulse. So putting people into prison is really a very poor way of keeping people out of prison.

I suppose that what we have to say, summing the matter up, is that we must not pitch our hopes on the penal system as a whole too high. By definition, the penal system locks the door after the horse has bolted. Occasionally subsequently it catches the horse and then has to decide what to do with him. But the roots of crime—the things that make the horse bolt in the first place—lie within the whole structure of our society and cannot be touched by the penal system itself. In the penal system we have tried many theories and a "hangover" of a good many of them still lingers on. I am thinking now of those persons whom we are not able to keep out of some kind of custodial institution. The Victorians in their day, if I may use their own language, used to think that they would reform criminals by "inculcating habits of industry into the labouring classes". They were not particularly successful. The Edwardians thought that rebellious and lawless working-class youths could be reformed by exposure to an imitation of the English public school system. They, alas! have not been very much more successful. Now I am not sure whether we are at all clear what we are trying to do with people who are in custody. We are changing the language certainly. As I learned when I went to the United States on behalf of the Penal Advisory Council last autumn, there what we used to call a punishment cell is referred to as a "therapeutic tool", and the system on which most of your Lordships, as well as myself, were brought up, whereby we were rewarded for good behaviour and punished for disobeying the rules, is now called "behaviour modification by operant conditioning". We may be changing the language, but I do not think we are very certain of what we are trying to do.

May I say, in conclusion, that when we have people in custody our best aim is to do no harm. That is not quite as pessimistic as it may sound. A large proportion of people who commit crimes and are put into custody are young people. The peak age for indictable offences is now 17, I think, although many serious offences are committed at higher ages, but not that much higher. Surely what we are really trying to do is to deal with people who have not matured to the level of civilised behaviour which is tolerable in our society. If we can keep them out of harm's way and keep ourselves, particularly, from doing them any harm for a period, in a good many cases Nature and the natural processes of human development will do the job for us, provided we have done no harm in the meantime. Evidence of that is of course written into the Criminal Statistics, notably in the spectacular decline in the number of offences which take place after about the middle twenties. This is obviously connected with the maturing of people whom we must regard, in social terms, as late developers, and also connected, in the case of a great majority of offenders who belong to "the minority sex", with the fact that they later form a stable relationship with a member of the opposite sex.

4.59 p.m.


My Lords, I should like to follow the noble Baroness in congratulating the noble Earl, Lord Mansfield, on his thoughtful and comprehensive maiden speech. He showed a wide-ranging understanding of the subject of this Bill, and I particularly appreciated what he had to say about the work of the Probation and After-Care Service. I think the noble Earl has appeared on only one occasion before the bench on which I sit. I wish it had been more frequently, but I hope that we shall hear him many times in your Lordships' House.

In common, I believe, with all others who have spoken, I welcome this Bill, and particularly those clauses that make a start in the direction for which all those who work in the field of delinquency have been asking. As was pointed out by the noble Earl, Lord Mansfield, until now courts have had just three possible courses of action in dealing with offenders: a probation order, a fine, or a custodial sentence of some sort. For years many of us have been complaining that time and again one meets a situation where none of these courses is appropriate, and we have been begging for other forms of treatment to be provided. But until the introduction of this Bill nothing has been given to us except the power to suspend sentences of imprisonment; and that tan hardly be called treatment, especially as supervision was excluded. Now, at last, wet have had a thorough investigation by the Committee of the noble Baroness, Lady Wootton of Abinger, leading to their admirable Report, and in this Bill we are offered community service orders, day training centres, power to defer sentence and the possibility of combining supervision with a suspended sentence. The last of these proposals has had a rather mixed reception but, generally speaking, all of them have been welcomed in principle by magistrates and probation officers alike.

However, the Probation Service have been extremely concerned about the possibility that they may be asked to take on a whole range of new duties before they have the strength to make a proper job of them. I know that this point has been very much in the mind of the Government, and the noble Viscount said so very clearly; and in fact specific precautions have been taken in the case of each of the new treatments. The power to combine supervision with a suspended sentence is initially to be confined to the higher courts in order not to overload the Probation Service. Community service and day training centres are to be started on an experimental basis only in selected areas, chosen in consultation with the Service, and they will not be extended until the expansion of the Service allows.

I understand that it is also intended that deferment of sentence shall be used only very sparingly. The noble Viscount, Lord Colville, has told us that there is to be no supervision for those whose sentence is deferred, although, so far as I can see, there is nothing in the Bill to prevent it. The Probation Service feel that they ought to be involved, and there is no doubt that deferment could be used by the courts with advantage in a far wider range of cases than is now envisaged if the strength of the Service made it possible to call them in to help. But they are also quite clear that they could not cope with this either at the present time; and I shall be grateful if we may be told how the use of deferment will be controlled.

The noble and learned Lord, Lord Gardiner, referred to the subject of the pay of probation officers. In the twenty years I have been a Member of your Lordships' House, whenever a debate of this sort has made it possible, noble Lords in all parts of the House have joined in saying that the pay of probation officers is too low and should be higher. The only people who have always sat looking rather glum and reproachful are the Government Front Bench, whoever they may have been at the time. Now, at last, we have the inquiry, which is being conducted by Mr. Butterworth, designed to establish what should be the proper relationship between the salaries of the Probation Service and those of the other social services. For my part, I am content to wait for the results of that Inquiry even though the report is delayed very much beyond the date at which we had hoped to receive it.

There are those who say that it is a mistake to embark on these wide-ranging reforms at a time when the Probation Service are hard put to cope even with their basic work of probation, apart from all the other functions that have been added in the past few years, while at the same time the volume of delinquency continues to grow. I do not agree with this view: I believe that it would be foolish and irresponsible to turn down now reforms for which we have been waiting and asking for so long. But I am glad that the noble Viscount has confirmed today in general terms that the new measures will be brought into operation only to the extent and at the time which the expansion of the Probation Service makes possible. I hope that as the Bill progresses he will be able to explain in detail how each of these new schemes will be operated in practice. For example, in spite of a careful study of the Report of the Committee stage in the Commons, which ran to 25 Sittings, and in spite of having listened to the speech of the noble Baroness, Lady Wootton of Abinger, I am still not entirely clear about how community service will be organised, and, in particular, who will be responsible for bringing an offender before the court for a breach of a community service order. These are perhaps more properly Committee points, but I should like to make one final point of a general nature.

As I have already said, all of us who work in the courts have for years been asking for reforms which will give us a wider range oil alternatives. Now we are to get them, and I have referred to the anxieties of the Probation Service. But have we who have to do the sentencing realised yet what it is also going to mean to us? The old three-way choice—fine, probation, prison—has often left us with no satisfactory solution; but at least with the aid of a social inquiry report it was relatively easy to decide which was the least unsatisfactory. Now we shall have several more possible solutions to choose from, and the task will be that much more difficult. I have the greatest admiration for the high quality of the social inquiry reports which we receive and which now provide the basis on which we make our choice. Our dependence on these reports will now be all the greater, and it will be more necessary than ever that there should be a clear understanding between those who make the reports and those who use them to make their decisions. It seems to me that joint conferences between magistrates arid probation officers will be needed, and possibly also joint sentencing exercises. It may be that even judges will feel the need for some help in understanding the different sorts of case for which these different treatments will be suitable.

Probation committees, too, are going to have a whole range of new duties thrust upon them: the arrangements for community service; providing and carrying on day training centres, bail hostels, probation hostels, probation homes and other establishments—all quite new functions with which these committees have never previously been involved. I think that this is right. It is important that the community should participate in its own problems and should not imagine that they can be dealt with successfully by professional agencies alone. Bodies constituted as probation committees, with magistrates and co-opted members working with the Probation Service, are well suited to this task and should be able to provide good links between the statutory services and the community, who must be increasingly involved. But the new responsibilities of probation committees will be much greater than anything they have known hitherto.

My Lords, it is true that all these new measures will come into operation gradually, and we should therefore be able to adapt ourselves to them as they arise. But while the Probation Service has carefully studied the implications of the Bill, I doubt whether the generality of magistrates have really woken up to what it is going to mean to us. The noble Viscount, Lord Colville, hoped that the Bill would not be underestimated. I believe that when it has become possible for all the proposals in the Bill to come into operation it will be seen to have produced greater changes than anything that has happened since the introduction of the probation order—and, my Lords, not a moment too soon!

5.8 p.m.


My Lords, any measure, however limited it may be—and I am not for one moment suggesting that the Bill before us is limited in the sense in which we normally use that word—that is designed to keep people out of prison and to deal with them within the community is to be encouraged. I wonder how many Members of your Lordships' House, and how many members of the public generally, realise the futility of a prison sentence. I am the first to acknowledge that prison is the only place in our society at this particular time that can meet the needs of certain individuals. But, like my noble friend Lady Wootton of Abinger, I should like to emphasise that prison has very serious limitations when it comes to reforming the individual. I do not think we can claim that our prisons to-day—if ever they had in our history—have any remedial value at all. I doubt whether they have any deterrent value. Their only value in our society is that of punishment. While accepting the need for that particular contribution in our society, one has to bear in mind that an abnormally high number of people who are committed to our prisons every year ought not to be there.

It is not so very long ago that we discussed in your Lordships' House the report of the Working Party on the treatment of offenders, led by the late Lady Reading. I think on that occasion we were told that something like 50,000 people are discharged from prison every year and that about 10 per cent.—at least 10 per cent.—of the 50,000 are found to be homeless; and not only homeless but friendless. They are found to be feckless, socially inadequate and, many of them, alcoholic. I think I am right in saying that it has been estimated that something like 60 per cent. of our prison population have an alcohol problem. I am not saying that they are alcoholics, but they have an alcohol problem, and something like 15 per cent. of them are regarded as alcoholics. I do not think we realise that a good many people who go to prison are in need of that kind of help which we cannot give in our prison institutions at the present moment.

Schitzophrenia, which is the most socially disruptive of the common mental illnesses and is characterised by a pattern of bouts of acute disturbance interspersed by periods of complete normality, is to be found in the alcoholic, and it has been suggested that nearly half the alcoholics and those who have an alcohol problem are in fact schitzophrenic. If that is true, prison, with the greatest respect, is the last place where they should be. We should be trying to treat them on the outside. I welcome this Bill, if for no other reason, because I believe it to be a sincere effort to face this problem, perhaps for the very first time. I am particularly pleased that so many of the recommendations of the Committee which was chaired by my noble friend Lady Wootton are to be found in this Bill.

I always feel a little diffident about following my noble friend Lady Wootton, and it may be the student-teacher relationship that still is uppermost in my mind. I know she will not mind my saying that it is nearly forty years ago, when I decided to enter the field of the study of delinquency and the treatment of the offender, that she was, I might say, my tutor—or at least I attended a large number of lectures given by her. I think that relationship to some extent still inhibits me when I follow her.

My Lords, I welcome this Bill. There are just three clauses that I should like to mention because they are important and, not surprisingly, are concerned more with the offender than some of the other parts of the Bill. I notice that Clause 11—and I seek the guidance of the noble Viscount, Lord Colville of Culross—deals with suspended sentence supervision orders. As I read it, it would appear to apply now only to the Crown Court because it says: Where a court sentences an offender for a single offence to imprisonment for a term of more than six months …". I can only think of one offence which enables magistrates to sentence a person for a single offence to more than six months' imprisonment. It therefore suggests that Clause 11 will apply to the Crown Court. If that is so, I find it difficult to understand subsection (9) of Clause 11. The subsection speaks about discharging the supervision order, and the last line on page 9 says: … except that, where the order was made by the Crown Court … As I understand the situation, no other court will be able to make an order, and therefore I should have thought that the wording there needs to be revised. I know the noble Viscount feels that this is explained by the first line on the next page, but I do not think it is. The subsection says "except. … where the order". Surely it should say, "except where the Crown Court so directs" that it wishes to discharge the order itself.

I should like to refer to subsection (4) of Clause 11, where it lays down that it will be necessary for the offender to notify the supervising officer from time to time of his change of address and to carry out such instructions as he may be given. Bearing in mind that this is a supervision order under a suspended sentence where certain conditions will be laid down, two of which I have mentioned—and I recognise that it is not a probation order—I should have thought that it would have been desirable to include in the supervision order something about leading an honest and industrious life. I know it is not a probation order, but there is going to be an order and in that order there will be conditions, and I should have thought that it would be of supreme importance that the offender should be reminded of the fact that while he is under supervision for that period he is required to lead an honest and industrious life.

I should like to refer now to Clause 19, which deals with probation orders requiring attendance at day training centres. My noble friend Lord Hamilton of Dalzell has referred to this and my noble friend Lady Wootton has also asked what is in the mind of the Government with regard to the organisation of these day training centres. It may be felt that perhaps one is being unduly concerned at this stage as to what kind of day training centres there are, but as I read the clause anybody, both male and female, of any age can be sent to a day training centre.

I do not know whether it was the intention of the Committee in making this recommendation or the intention of the Government when they put it in the Bill that it should be for young people who had missed out and were socially inadequate; whether the first priority should be young people or whether it is meant for any offender appearing before the court. I should have thought there was something to be said for clearly indicating the kind of day training centres that will be available, and that it would be desirable to indicate the sort of people, apart from just generally referring to the socially inadequate, who should be attending the day training centres. I do not think enough is known on this matter, and I want to stress how important it is that this operation should be thought out very clearly before the centres are put into operation.

I say to the noble Viscount that there is a real risk at the present time that the Children and Young Persons Act 1969 is breaking down. I realise that it has been in operation for only one year, but the noble Viscount will recognise that that Act was designed to take away from the court and the Probation Service the care and treatment of young people. To-day, we find courts making court orders and local authorities having nowhere to send the boy or girl because the community homes that were originally known to us as approved schools have become so choosy that they are now in a position to say that they will take this person or that they will not take that person, whereas before the operation of the Children and Young Persons Act 1969, if a juvenile court made an order committing a child or young person to an approved school, it had to take them. But to-day, as I say, they are becoming so choosy that many of them will take only the youngsters that are going to give the least trouble. If this question had been dealt with before the Children and Young Persons Act 1969 came into being I believe that it would have worked far more effectively than it is working at the present moment. I do not ask the noble Viscount to attempt to deal with this point. I merely say that I hope that the organisation of these day training centres is carefully thought out before they are put into operation.

The only other clause that I want to refer to is Clause 21, dealing with the deferment of sentence. I have read the various speeches that were made in another place by the noble Viscount's right honourable friend and by other Members who expressed opinions about the deferment of sentence. I recognise that in the main courts wishing to encourage somebody to get a job may perhaps defer sentence while that person makes recompense or restitution. I feel that it is desirable that the Government should consider whether this is not a case where, when the court defers a sentence, the person whose sentence is being deferred ought to be subject to supervision. I believe that some probation officers would welcome this step. It will not be for long. It cannot be for more than six months, as I understand the clause. It appears that the court is going to defer sentence on a person for a period up to six months in order to see how he or she is getting on.

I would remind the noble Viscount of the wording of subsection (1) of Clause 21. That says that the court may defer passing sentence on an offender for the purpose of enabling the court to have regard, in determining his sentence, to his conduct after conviction … or to any change in his circumstances. I do not see how the court can possibly obtain that information, unless of course they get it from the police. But does one want the police to operate at that period? Would it not be far better for the court to make a supervision order? I appreciate that it has to be done with the consent of the offender, but in my view there would be no difficulty in getting the offender's consent to being supervised during that period, particularly when the whole object of the exercise would be to give him skilled and expert help in the form of a supervisory or probation officer.

As a number of people have said, the success of this Bill will depend to a very large extent on the Probation Service. The noble Lord, Lord Hamilton of Dalzell, has explained that this Bill is going to impose a very serious strain on the Probation Service. I know that the noble Lord's right honourable friend in another place has said that he is determined to increase the Probation Service to 4,700 in 1975; but I do not think he is going to get 4,700 probation officers by 1975 unless there is a very substantial change in the salary and career structure of the Service. In 1975 I may be proved wrong, but no Government have succeeded in recent years in reaching the desired level of recruitment into the Probation Service. I feel that this Service does need strengthening. As a case in point, the London Probation Service which have a total establishment at the present moment of 402 probation officers, have 353. They are 56 probation officers short in an establishment of 402, which is 14 per cent. below strength. That may not accord with the rest of the country or with other big towns; but that is the situation in London, and I venture to suggest that the impact of this Bill when it becomes an Act will be felt perhaps more strongly in Inner London than anywhere else.

The noble Viscount referred to probation officers during his opening speech, and he was good enough to indicate as a result of a nod from me that the Inner London probation officers were satisfied as a result of recent action taken by his right honourable friend. I should like to take the opportunity, because I have not had an opportunity before, of thanking him and his predecessor. If I may say so, the mantle of his predecessor fits so well on the noble Viscount's shoulders. We are delighted to know that he is handling these matters together with his right honourable friend, and we thank them for treating the Inner London Probation Service as a unit (for it is a unit) and for seeing that all in that Service received the London weighting allowance of £144. It has been well received in the Inner London Probation Service and has been the means of easing the situation there very considerably.

5.28 p.m.


My Lords, before I come to what I want to say this afternoon I should like to add my congratulations to the noble Earl, Lord Mansfield. on what I thought was a brilliant speech. From what we have heard since, he seems to have got around quite a bit, because I think he has also appeared before me. That makes at least three of us—and probably there are more. Always I enjoyed having such expert company on both sides of the bench. I congratulate him on his contribution this afternoon.

I rise to welcome this Bill very warmly. It is a Bill that is not likely to arouse much passion in your Lordships' House, but I venture to predict that by the time it has gone through all the usual stages it will have aroused interest and perhaps even enthusiasm here. Much of it is the work of dedicated people, like the noble Baroness, Lady Wootton of Abinger, and her colleagues. I notice that she is just leaving, but I should like to say how much I enjoyed reading her Reports. I think I have read everything she has written, and I have learned a very great deal from it. I am one of 20,539 magistrates who form the lowest strata of the judicial system, and I shall confine my remarks to-day to some of those parts of the Bill which are directly applicable to the magistrates' courts. I imagine that all your Lordships know that the magistrates' courts, although they are the lowest courts, deal with 98 per cent. of all the crime in the country. It is therefore not surprising that there is a great deal of interest, outside this House and outside the other place, in this Bill, which will have widespread repercussions on what we all do in our courts.

The first clause to which I should like to refer is Clause 10, dealing with suspended sentences. I sit two days a week at a very busy North London court which is on the road from the docks to the M.1 and the A.1, and it also has within its divisional boundaries several large factories dealing in metals. The amount of stealing from both those sources continues to grow. And this is done not by petty thieves, petty pilferers, but usually by hardened professional planners who have at last been caught—though from the look of injured innocence they wear in the dock we presume they are trying to make us believe that this is the first time they have ever done such a thing and that they will never do such a thing again.

Since 1967 our hands have been tied, in that the suspended sentence is mandatory. That is why I warmly welcome the alteration in our powers that this Bill proposes to give us. In 1970 there were 33,709 suspended sentences. They were passed for indictable offences committed by people of either sex over the age of 17. The nearest figure I have been able to obtain for offenders who have committed further crimes during the period of their suspended sentence, and therefore have had to serve their terms of imprisonment, is 12,729. These are not taken for the same year, but it seems that the figures have varied little during the years since this was introduced. This I suggest shows, at least on the face of it, that the suspended sentence has had a deterrent effect. But I doubt whether I shall be accused of being outrageously cynical if I venture to say that many of the other 21,000 have been too clever to get caught again. If that is so, the offender gets off scot-free, while sometimes his friend, who perhaps helps him unload the goods, is fined, very often heavily. My own view, for what it is worth, is that a heavy fine, accompanied by the threat of a term of imprisonment if the fine is not paid, is the best deterrent in these cases.

In this Bill there are many ideas which my right honourable friend the Home Secretary has told us are in the nature of experiments. The first of these, which has been referred to by every speaker this afternoon, is the community service. It is intended that this should be offered to an offender as an alternative to prison. While welcoming this idea in principle, I can foresee enormous, though not insurmountable, difficulties, and I think the noble Lord, Lord Wells-Pestell, dealt with this aspect, which I have also found in my dealings in the juvenile court. We hear that there will be experimental areas—1 think the Minister mentioned five. From my experience in trying to implement the Children and Young Persons Act, may I urge the Minister to be very certain that the groundwork is thoroughly done by experienced local people, probation staff, paid staff and voluntary people, before the community scheme is put into operation.

Our present problems in the juvenile court, as Lord Wells-Pestell has so rightly said, stem from the totally inadequate preparation on the ground which was made before the Bill became law. The detention centres rarely have a vacancy, and we are forced either to put the child into care or to make a supervision order. Frequently the placings available to the local authority are insufficient to meet the demand, and a child who desperately needs to be away from home for a period is returned to that home by the children's department. I mention this only because if the community scheme is to work, as I sincerely hope it will, a great deal of planning will be necessary.

Clause 28 deals with "drying out" the habitual drunkard. I have read the Bill and that part of it dealing with drunkards, because we have quite a number of them in my court, but I cannot see the word "habitual" in the Bill. This was used by my right honourable friend the Home Secretary, and has also been used by the Minister here this afternoon. If none of the drunks is to be taken on arrest to the local police station, I can envisage an outcry from the local hospital if it is to be used as a detoxification centre, if that is the word. The noble Viscount shakes his head. I hope that he will be able to tell us how the centres are to be run; this is going to be very interesting. But since the word "habitual" was used by the noble Viscount, I wonder if he could tell us who is going to decide—and where—whether or not an offender is an habitual drunkard. Would it be the arresting officer in the street, where normally an arrest is made? Presumably the offender will be past caring, or at any rate incapable of giving an accurate account of himself. Or would it be the sergeant at the station; or would it perhaps be en route to the detoxification centre, or, at his discretion, in the cells? Who would be the judge of whether or not a man is an habitual drunkard? Even so, if all the people, male and female, who get drunk on our streets on Saturday nights are to be taken to detoxification centres, I can foresee that they will be very busy indeed. Perhaps the Minister would like to start the experiment in my part of North London.

Since I have been a Member of your Lordships' House I have not had an opportunity of saying anything about the great debt we owe to the members of the Probation Service. The work they do, both for the courts who rely on them, and for the clients we entrust to their care, is a very real service indeed. I was especially pleased to hear the Minisster tell us of the increase in full-time probation officers that he hopes to enlist before the end of 1972. One noble Lord (I think it was the noble Lord, Lord Gardiner) mentioned that he did not know why so many probation officers were leaving the service, or perhaps he was querying whether as many were leaving as were coming in. From my knowledge, which perhaps is only local, I have found that the probation officers are leaving to join the child care officers as members of the local authority: first of all, because the pay of the probation staff is not good enough, but, secondly, they want initially to deal with children, and, unfortunately, with the Children and Young Persons Act 1969, the care of children was almost entirely taken away from the Probation Service. This, I think, is one of the reasons why we are losing so many wonderful people from this service. I add my hopes that the Committee will very soon find substantially in favour of a very high reward being given to the Probation Service. The future proposals of the community service will depend upon them, as many other speakers have said this afternoon.

My Lords, I commend this Bill; I wish it a swift journey through the House. It is an important piece of legislation both to the law-breaker and to those who have the arduous duty of trying to make the punishment fit the crime.

5.40 p.m.


My Lords, as the first lay voice to be heard in this debate I should like to add a word of general welcome from these Benches for this Bill, although I say that with great hesitation after the speeches from so many noble and learned Lords and distinguished justices of the peace. The young taxi-driver who brought me here to-day asked me, in the best New York style, what we should be debating. When I told him it would be the Criminal Justice Bill he made, as we waited at the traffic lights, the interesting comment, "That's an unfortunate title; surely 'Fair Justice' would be better". I took his point. This Bill includes among its varied provisions several features of great importance to all those who are concerned with the prevention of crime, with effective penalties for law-breakers and with their aftercare and rehabilitation in society. Although I accept what the noble Lord, Lord Morris of Borth-y-Gest, said a bout the position of judges and magistrates, none the less I personally welcome the clear directions in Clause 13 to those who administer justice that they shall not sentence to imprisonment young people who have not previously served a prison sentence, unless they are satisfied that there is no other method of dealing with them. Although the Bill sets 21 as the upper age limit for such a restriction on sentencing, I hope it will prove to be an important step in the direction of sentences to imprisonment being, in general, a last resort. The increase in the range of penalties available to the courts should greatly facilitate this, always provided that the availability of such alternatives to imprisonment are fairly quickly available in all parts of the country.

Reference was made in the debate in another place to the sentencing policy in the State of California, where grants are awarded to the counties for every convicted person who could be given a prison sentence but who is kept out of prison. This subsidy goes to the enlargement of the probation service run by the county and can be used only in this way. I understand that the effect has been a marked reduction in the number sent to State prisons, and, of course, a marked increase in the numbers on probation and in the number of probation officers and their staff. In addition to keeping people out of prison this arrangement has proved less costly to the State and to its counties. We may not wish to emulate such a scheme in this country but at least it is a reminder to us that adequate investment in the essential staff and centres for alternatives to imprisonment must precede any long-term saving in the heavy cost of keeping offenders in custody.

My Lords, I notice that the clauses which refer to community service orders speak of convicted persons being required to perform "unpaid work", while on Clause 19, the clause which makes provision for attendance at day training centres, the Explanatory Memorandum refers to such centres as providing social education in conjunction with intensive probation supervision. I cannot believe that the objectives of these two alternatives to imprisonment can really be so very different. I should have thought that a certain amount of unpaid work for the community would be an essential feature of what is described as social education, which I take to mean education for responsible citizenship and in most cases for responsible parenthood. At the same time, I should be sceptical of any community service order which required unpaid work that was either unsupervised or socially unprofitable.

The Minister told us that it is proposed that community service orders will be experimented with in five areas. I was naturally interested to hear that Kent is to be one of these areas. He also said that initially four day training centres will be provided on an experimental footing. I am sure both these experiments will be watched with close attention by all those who are concerned to see that these alternatives to imprisonment shall not for too long be available only to those who are fortunate enough to live in one of the areas for such experiments. I trust, therefore, that there will be a strict time limit for both these experiments. I hope that the experience of a number of the national voluntary youth organisations will be sought in the planning of the types of unpaid work to be suggested and in the social education to be provided. I am thinking of what may be learned from the experience of failure every bit as much as from the experience of success. Unpaid work that improves rather than impairs morale may not always be as easy to arrange as at first sight may seem to be the case, as I think the noble Earl, Lord Mansfield, rather suggested in his maiden speech, upon which I should like to add my own congratulations. I may be wrong, but I suspect that social education at a day centre for those whom the Minister described as inadequate offenders may call for rather special gifts of imaginative planning and dynamic leadership.

I welcome the provision in Clause 40 which would allow a magistrates' court to make a community service order against an offender instead of committing him to prison for non-payment of a fine, but surely in such cases the nature of the unpaid work to be done and the effectiveness of the supervision provided would be particularly important, if the risk of this alternative deteriorating into far too soft an option is to be avoided. In the Command Paper on Probation and Aftercare presented by the Secretaries of State for the Home Department and for Scotland last month the observations of the Government on aftercare hostels included the very significant comment that the inhibiting factors in the rate of growth of such hostels are not primarily financial but include, for instance, the problem of finding suitable staff. I should doubt whether anyone would wish to quarrel with that comment; and while, therefore, I welcome the possibility of aftercare hostels being set up by probation and aftercare committees, I do not think we should underestimate the difficulties that they will have in recruiting the necessary staff. Surely this must remain a field where both statutory and voluntary provision continue side by side. My own very limited experience suggests that the voluntary hostel has a special part to play in the rehabilitation of young offenders in comparatively small, home-like houses very different in ethos from any kind of official institution. I hope we may be assured that it is the Government's intention to maintain this present flexible position, and indeed to make more money available in England as well as in Scotland—which has been promised—to assist the voluntary agencies to provide additional hostel accommodation.

The new provisions for community service orders, day training centres, bail hostels, probation hostels and the like, as has been made very clear by a number of other noble Lords, all impose additional responsibilities upon the Probation Service. I speak for no one but myself, but being married to a lay magistrate, associated with the administration of two prisons and two hostels, who has worked as a probation officer, I have been left in no doubt that it will be absolutely essential for the number of probation officers to be increased to match the extended duties which this Bill will bring upon them. Like the noble Baroness, Lady Macleod of Borve, I welcome the Minister's assurance that he expects an increased number of probation officers next year. I am sure that there will be many noble Lords in all parts of the House who will await with interest the recommendations of the Butterworth Committee on the conditions of work and the salaries of these men and women who are going to bear so large a part of the burden of providing possible alternatives to imprisonment.

Paragraph 57 of the first report of the Expenditure Committee for this Session called for a concerted national campaign to explain the probation system, to help improve the public attitude to probation officers, and to create a favourable climate of opinion for the extension of non-custodial treatment of offenders. The Government, in their comments on that report, merely said that this would be considered. They quite rightly rebutted the view that the Probation Service is held in low public esteem, but made no reference whatever to the need to create a favourable climate of opinion for some of the important developments envisaged in this Bill. I should have thought that the experience of getting the work of the Parole Board properly understood by the public in the last four years would have shown just how important it is to prepare the way for changes and reforms of this kind.

I very much hope that the Government will not treat this suggestion of the Expenditure Committee too casually. If the alternatives to imprisonment provided in this Bill should prove to be the important developments that some of us think they are, then it will be important that strong positive steps are taken to prepare public opinion for their introduction. With this important proviso, I warmly support this Bill and hope that your Lordships will give it a Second Reading.

5.54 p.m.


My Lords, I cannot let the right reverend Prelate get away with the claim that he is the first layman to speak in this debate. No right reverend Prelate has ever been a layman. He has admitted that his wife is a lay magistrate. I claim to be speaking as the first layman to-night. My wife is not a lay magistrate and nor am I. I am not a lawyer, nor is she; I am not even a learned judge Therefore, coming in my rightful play, bringing up the end of this very we[...] informed debate, there is very little for me to say because, on the whole, the Bill has been discussed in the most knowledgable way by the people responsible for thinking it out and doing it. What I am going to say will essentially sound rather bitty, but I am going very quickly to try to give a lay view of some of the clauses that we have discussed.

I should like to begin by associating myself with my noble and learned friend Lord Gardiner and my noble friend Lord Wells-Pestell in their remarks—I think they are the only people who made them—deprecating the use of prison at all for anything except the protection of the public. That is not the general view of the public; it is not the general view of the judges; it is not the general view of the magistrates, and I doubt very much whether it is the general view of your Lordships, but it is my general view and I do not hesitate to put it forward. People who are sent to prison under our present prison arrangements, if they have committed anything except a very serious crime, have a very bad time indeed. If they have committed a very serious crime they get, in my opinion, very useful treatment indeed. I am not for one moment talking about the central prisons, which are not overcrowded and where dangerous criminals are kept away from the public and properly looked after. But so long as you send people to prison for absolutely inadequate reasons, except that you want to give an impression of punishment, you will fill your local prisons so that the prisoners suffer not only pain but deterioration. This is a common view which is held by nearly everybody. I do not want to say too much about it, but I start from that basis in looking at the Bill. I am far more interested in the second half than the first half, though I welcome the first half. I am all for doing anything we can—though I do not think we have in fact done very much—to provide compensation and to prevent the criminal enjoying the fruits of his labour.

May I once again say how proud I am to be my noble friend Lady Wootton's colleague. Nobody else could have chaired this Committee with the same imaginative and satisfactory results, ariving at a unanimous point of view. It was appointed by a Labour Government and accepted by a Conservative Government. Incidentally, I think I am the only other living person who has been through that experience, which is not in its way disagreeable. Anyway, I am very glad indeed to be associated with my noble friend. But the danger of her recommendation is that if they are applied wrongly, or applied without the very greatest care, they are going to be alternative to probation and not alternative to prison. As the noble Earl, Lord Mansfield, said in his excellent, informed and stimulating maiden speech, it is a very good thing for magistrates to have a number of alternatives in front of them; but variations on the probation theme, though useful, are not fundamental. What is fundamental is to give the wretched magistrates something to do with the man rather than send him to prison, which I think most magistrates and most judges genuinely do not want to do. What we want to do is to give the magistrates an alternative which will enable them to keep a man out of prison. The danger in the whole of the legislation, including the last Government's suspended sentence plan (which has gone rather wrong) is that this will not have that effect.

Information which has come out recently from the Home Office (which I think is not yet generally published but is obtainable through the Printed Paper Office), contains two studies of suspended sentences which show, so far as I can see at a quick reading, that half the suspended sentences have gone to reduce probation and fines, and the other half to reduce imprisonment in the first round—though of course all failures go to increase imprisonment in the second round. At any rate, it is a very obscure subject about which we know very little.

I should like to make one philosophical objection to suspended sentences, and I do so on the same ground on which I opened. I do not believe that there can be any situation where a person must be sent to prison except that it is for the protection of the public. If that is the case, there can never be a case for suspending a sentence of imprisonment. This is a fairly extreme view; and I am quite prepared for the noble Viscount to shoot it down. But it is the view which I think in 10 years' time will be held by everybody, so we may as well begin to think about it now. On the abolition of mandatory suspended sentences, the right honourable gentleman, Mr. Carlisle (I think on Report stage in the other place), accused my right honourable friend Mr. Edmund Dell of conjuring figures out of the air. But the figures have now materialised and are available. I hope that in Committee we can discuss the details, and that the noble Viscount will accept the figures which the Home Office—his own Department—have put out.

My noble and learned friend Lord Gardiner suggested that a figure of 2,000 extra people in the prison population might be involved by abolishing the mandatory sentence. That was a slip of my noble and learned friend's tongue. It is not the population, but the receptions which would be increased by a figure which has been credibly estimated at 2,000. It may be too high; it is certainly quite a lot. Obviously, I am anxious to maintain anything, however much it might frustrate magistrates, which stops them sending people to prison, so I am absolutely unrepentant in asking that this mandatory law should be continued.

There are certain matters about which I do not quite agree with what other people have said. My own view is that one should not have suspended sentences at all but it is too early, after such a short time, to abolish them. But if you do not abolish suspended sentences, which I should like to see done, then there is a case for having a supervision order available to the court, as well as the suspended sentence. But the Probation Service, as the noble Lord, Lord Hamilton of Dalzell, told us, is in a bit of a tizzy over this, and they are not all happy about it. I believe their main objection is that they think they will not be given the extra assistance to do the work which is required, though they give as a reason that the work is too penal in that they are having to report changes of address and are generally behaving in ways other than befriending, which is their main business. But, for the moment, I would accept the right of a court to impose a supervision order.

Clause 13 is fine. It adequately replaces the First Offenders Act, and I welcome it. Clause 14 has been discussed so fully that I will say no more than this. I should like to follow the right reverend Prelate in saying that there is a great deal of information in the voluntary movement about how to separate this sort of procedure, and I hope it will not be neglected. It is certainly anxious to help. The compulsory service order is designed for people who are in work and, presumably, living at home or in a satisfactory hostel. We must not forget that it is meant to be not only rehabilitative but also a little punitive; otherwise, the public will want to send these people to prison. One has to look at it in the same way as getting 500 lines rather than being beaten. But it is quite a nasty, tiresome punishment and we have to get the public to take that kind of view of the compulsory service order. However, it is mainly rehabilitative and whether it will do any good depends entirely on how it is operated. All I can say to the noble Viscount is that the voluntary movement on the penal side has ideas; the voluntary movement on the social side is offering its assistance in all directions, and there is every hope that this will work.

Day training centres are part of the same game, except that they are part of a probation order and are meant for unemployed people who are presumably living in hostels—because, as a rule, most of these people are not living at home. Again, success entirely depends on how it is operated. I hope that the ages will be mixed and that there will be group therapy, which really only means sitting around and talking, but which does more good to isolated people in trouble than anything else in the world. I am sure that the suggestion of my noble friend Lady Wootton of Abinger, of studying what is going on in New Zealand, is already being done.

I should like to state a view on deferment. I believe that the virtue of deferment is that it is not a sentence, and as it is not a sentence it should not carry a stigma. The position is that if you do what you say you will do, the slate will be wiped clean. If you do that, you cannot give a chap a probation supervision order; it must be kept apart from probation. It is the kind of thing that every mother does with every child. She says, "If you do this I will not punish you." Therefore, it cannot be involved with the faintly penal aspect of supervision by the Probation Service. There is one point which has not been made clear in the Bill. As my noble friend Lord Wells-Pestell asked: Who will find out whether a chap does what he says he will do? I should be interested to know.

Clause 44 has worried me a little. I am deeply involved and very much interested in the penal voluntary movement, not because I think voluntary movements are any better than any others, but because things must be done by any means and the voluntary way is one method. Subsection (1) of Clause 44 gives the probation and after-care committee, with the approval of the Secretary of State, the right to provide and carry on day training centres, bail hostels, probation hostels and other establishments. But the next subsection—and we know that the Home Office is infinitely careful—covering payment for them excludes other establishments. As the other establishments are the establishments in which I am interested, and in none of which is the State interested, I naturally take a poor view of this and should like it expanded.

Finally, the right reverend Prelate referred to the probation subsidy scheme in California. Is it not possible to bend our minds to this? I keep saying that I can run a voluntary hostel for £9 a week for each person, the probation hostel costs £19 a week and prison costs £24 a week. What the people in the Treasury say is that it is all on paper, and they do nothing about it. I think we should be offered money to keep people out of prison. One cannot develop the point now, but the fact that that has been done in California and that the City of Los Angeles saved over 50 million dollars, or 4,000 dollars a head, from keeping people out of prison is very significant, and we ought to look at it.

Having said all this as a layman—and I still claim to be the only one—I welcome this Bill. It is the second attempt to keep people out of prison. We had a bit of a shot at it in 1967, but the most important part—the drunken offenders' legislation—has never been carried out. It has taken five years to report on it and it is still not implemented to the extent of more than one-twentieth of what is required. What is rather encouraging is that the compulsory service orders and the day training centres are to have specific experiments on a small field scale. That is the right way to do it, and I hope that it does not take five years before we see anything.

6.8 p.m.


My Lords, it is with some trepidation that I rush in among so many noble and learned Lords who have forgotten more about criminal justice than I shall ever know. But I wish to say a few words, because this Bill attempts to provide some answers to questions which I have discussed over and over again with fellow magistrates. I say "attempts" deliberately, because this is an experimental Bill and, as such, should be subjected to special scrutiny in this House where there is such a unique wealth of experience. We have been groping for many years for ways in which to make more effective the deterrents which public opinion allows us to inflict upon offenders, and to combine with those deterrents rehabilitation to induce in offenders a mental attitude which will enable them to take a normal place in society after their punishment is completed.

The Advisory Council has provided us with some light to make progress, and with some excellent ideas to put into practice. To me, the most important new concept is the community service order, and I should particularly like to commend its flexibility. One of the most hopeful forms of treatment is that where an offender works with volunteers. These volunteers inevitably have a social conscience and sense of duty which the offender is unlikely ever to have encountered in his home environment, and the close contact and comradeship of working side by side can have a profound effect on many to whom a sense of duty is not only alien but completely unknown. This type of community service will not be easy to organise and will be suitable for only a limited number of offenders. Another small but important point is that community service will not make the offender into a hero among his mates, as a sentence to a period in borstal or prison can often do. I note that the Government intend to set up pilot schemes in five areas. I am sure that these will be very necessary, but it may be many years before a complete assessment can be made. I hope that the Government will press on with that expansion of the scheme as soon as any lessons are learned.

I believe that the difficulties of organising community service are so vast that it will not be successful unless the Government appoint a controller of some stature, vision and determination, who can inspire the workers in the field and bully the Government Department into providing the finance and the facilities that the service will require. I urge this because of the very slow progress of the experiment with attendance centres. These were set up under the Criminal Justice Act 1948, but it was ten years before the first senior attendance centre for the 17 to 21 age group was formed. Even to-day there are still only two senior attendance centres. These centres have had considerable success, and I would urge the Government to expand this experiment, notwithstanding the new concept of community service. The two services may well prove to be complementary. We know that the community service concept must be experimental and we must try all possibilities open to us to achieve our end. In this connection, I hope to move an Amendment at the Committee stage to empower the Crown Courts to make attendance centre, orders. This is to give effect to the proposal by a working party of the London branch of the Magistrates' Association which studied senior attendance centres in detail. At present only magistrates' courts can make these orders, except on appeal; and although I appreciate that the more serious offences are dealt with by the Crown Courts, it is anomalous that the power of the higher court should be limited in this way.

Another minor point is that I notice that one in four offenders sent to senior attendance centres claim they are unfit. There could be a similar problem in regard to community service orders. I wonder whether there ought to be any provision for medical examinations, or whether offenders ought to be made responsible for providing medical certificates from their family doctors in cases of doubtful fitness. It would help us, too, if the Minister could tell us a little more about day training centres. Is this training to be of the moral type, aimed at helping the offender to avoid future conflict with the law, or of the practical type, to help him obtain and retain employment? Also, will there be any connection or co-operation with existing attendance centres?

Another new concept in the Bill is the deferment of sentence. I welcome this proposal. We all know the difficulty of judging the genuine will behind the remorse and offers of restitution that sometimes emanate from the dock. We are considering not only cases where the court is deliberately misled but also cases where the remorse is genuine at the time but fades quickly under the stress of freedom and economic pressures. I am glad that the Government have rejected the recommendation that the court should lay down conditions. Magistrates will have to be careful not to imply promises and to choose their words carefully, so that no suspicion of "horse-trading" arises. Any idea of the court making a deal with the accused would be most undesirable. Lastly, in Clause 11, which deals with supervision orders during a suspended sentence, I can find no provision requiring the offender's consent to the supervision order such as is required for an ordinary probation order. Will this consent be required; and, if so, what happens if it is not forthcoming?

My Lords, I wish the Bill and the experiments contained in it well. But to succeed it will need superhuman efforts on the part of those who must implement it. The Government and the courts must do all in their power to support the Probation Service and all others involved. On their dedication and hard work will depend the future not only of many offenders but of the whole fabric of a law-abiding society.

6.16 p.m.


My Lords, I rise to deputise for the noble Baroness, Lady Serota. May I express the wish that she will soon be back in her place? We miss her contributions to our debates, especially debates such as we are having to-day. This fact will become even more obvious in the course of the next few minutes. I should like also to congratulate the noble Earl, Lord Mansfield, on his maiden speech. It was informed; it was well delivered, and it had a professional touch.

In the last two decades the increase in crime, particularly violent crime, has been world-wide, not only in countries which have liberal Constitutions but even in countries which have illiberal Constitutions. All the evidence available shows that we in this country have done rather better than many other countries. It is quite clear that there is no easy solution. We on this side of the House believe that our ability to contain the increase in crime will depend very largely upon our willingness to undertake research into the causes, to consider ideas, to experiment and, above all, to apply our resources to the prevention and detection of crime and the rehabilitation of the criminal. The Bill before us is in keeping with the trend in our criminal legislation over the postwar period. It tends to concentrate existing resources and to increase the penalties for the dangerous criminal while providing new ways of offering opportunities for rehabilitation to those who are likely to respond to them. The backbone of the Bill derives from the reports of the Widgery and Wootton Committees of the Advisory Council. I would join with noble Lords who have spoken in paying tribute to the noble Lord, Lord Widgery, and the noble Baroness, Lady Wootton of Abinger, who were the Chairmen of the respective Committees, and to all others who put so much time and thought into this work. I would also remind the House that the Advisory Council was appointed by my right honourable friend Mr. Roy Jenkins in 1966.

My Lords, if I looked at this Bill purely and simply as a magistrate and asked myself which of the provisions here are the most urgent, I should have no doubt at all: the provision which is most urgent is the provision of bail and probation hostels and centres for alcoholics—assuming that we shall not merely provide for the constable to take a drunk to the centre but will in fact provide the centres. Each year about 40,000 people are remanded in custody, and more than half are ultimately either acquitted or receive a non-custodial sentence. I believe that by the use of the bail hostel we can reduce the demand on our prison accommodation by about 5 per cent. Furthermore, there are many people in prison who would not be there had they had a fixed place of abode. The provision of the probation hostel may encourage the court to put them on probation. Many offenders have to stay in prison awaiting a medical examination. The vast majority of them do not receive custodial sentences after the examination has been conducted and the report has been made. It is absolutely essential, therefore, that, parallel with the provision of these hostels, we should make better arrangements for medical examinations and reports.

Our probation officers have to spend a great deal of time searching for accommodation for their clients. Sometimes the only accommodation they can find is unsatisfactory: more often, they cannot find any accommodation at all. These lostels, if we provide sufficient of them, will meet an urgent need in our penal system. I should have liked the Bill to go a little further. For example, why should it not have provided for centres for drug addicts? This is the best way to treat the drug addict, in the same way as the other kind of centre is the best way to treat the drunk. I believe that in due course we shall have to go much further. We shall have to devise institutions which are somewhat short of prison but which have for their purpose the disciplining and training of the work-shy. That, I believe, is something which is likely to occur in the future.

We are pleased to see the codification of compensation under the criminal law. It is of course an addition to the victim's rights under the civil law, and to his right to apply to the Compensation Board. There is a fair amount of public concern that the victim should be compensated by the offender. It is very likely that compensation will be regarded by the offender as a much stiffer punishment than a fine of the same amount, but perhaps for the same reason it will be harder to collect. The experience of the Compensation Board shows that there were extremely few offenders who could have been usefully sued. Therefore I do not think we should attach too much importance to compensation. Nevertheless, I hope that the courts will use this power, and I am pleased to see that compensation has a priority when it comes to the allocation of monies received.

I hope that attention will be given to the points raised by the noble Earl, Lord Mansfield. I believe that in trying to look after the victim we should not be unfair to the offender—and I gather from the point that he made that we are likely to be acting in that way. Criminal bankruptcy will have limited value, for the simple reason that professional criminals are seldom caught with assets which can be seized. Nevertheless, it is the right kind of measure that should come forward, and we hope that it will meet with some success.

I come now to suspended sentences; and I would join with my noble friend Lady Wootton in defending the magistrate. I believe that if there were inquiry it would be shown that many of the suspended sentences which have taken the place of probation and fines were imposed in courts where the probation service was overworked and where the fines arrears were piling up. I also believe that it would be found that the people who had received suspended sentences were people on whom probation had been tried and people from whom the court felt it was extremely unlikely that it would ever see the money if it fined. I think the magistrate has been up against the situation that the Probation Service is overworked, and he would see that if a person was put on probation it would be an additional burden to the Probation Service; if he fined, it would be a clear addition to the fine arrears; but if he gave a suspended sentence, then the fellow might be good for the year or two years, as the case may be, and there would be no pressure upon the Prison Service—and, after all, I think that, in something which was experimental, that was fair reasoning.

If it has been the practice of courts to give suspended sentences without requiring a probation officer's report, then I believe that the obtaining of such a report should become mandatory. It is the probation officer who is able to say, better than the magistrate—because he can spend more time on the question—whether the offender concerned could, with advantage, be placed on probation; and if suspended sentences have been given without any request to the Probation Service for a report, this is wrong, and I think the time has come for making mandatory the obtaining of a social inquiry report before imposing a suspended sentence.

The question of whether the suspension of a sentence should be mandatory or not is, I believe, one of the most controversial points in the Bill. We are glad to see the protection for the person who has not served a prison sentence. I believe it is possible to compromise between those who would like to see the suspension mandatory and those who are opposed to it. We do not wish to fill our prisons with poor, inadequate people who are serving short prison sentences. Why should it not be mandatory upon magistrates, before sending anybody to prison for a short sentence, to make sure that there is no other way to deal with him, and if, eventually, they find there is no other way, then registering their reason in the same way as they would for a person who had not served a prison sentence? I believe that that is a fair and reasonable compromise between a mandatory and a non-mandatory provision, and I hope it will receive consideration.

As to the reduction of the period of suspensions from three to two years, that is welcome; but it reminds me that only a few years ago in the court in which I sat we had brought before us a Cana- dian who had committed an offence in this country. When it came to producing his record, it was shown that he had committed a similar offence in Canada for which he had received a suspended sentence—and a suspended sentence in Canada lasts for life. He was wanted in Canada for another offence and was trying to avoid going back to Canada. There is a big difference between life and two years or three years; but it shows how many-sided opinion can be.

I would say that in general we agree that a supervision order connected with a suspended sentence is a good idea; but, of course, there will be a tendency to give a suspended sentence with supervision in place of probation. We think that the Bill is right in allowing us a supervision order only where the penalty is six months or more. But even in the Crown Court there could be a temptation to give nine months so as to get a supervision order. We welcome the community service order as an imaginative and positive idea. So many penalties are negative; this is a positive one. It emphasises reparation to the community and it could give the offender a feeling of being needed. Very often that is what he requires. The success of the community service order will depend upon three things: first, the choice of the right offenders for their particular sentences; secondly, the choice of the right kind of projects; and, thirdly, expert supervision. We therefore welcome the mandatory provision that there should be a probation report before anyone is subjected to a community service order. We look forward to seeing the rules which the Minister will make in regard to such orders.

On training centres, I think the Minister will find that there are going to be lots of questions in Committee. The possible candidates vary so much that we are bound to ask for whom it is intended. The Explanatory Memorandum to the Bill says that those who go will get a social education. I think that that conflicts a little with the reply given by the Minister in Committee in another place; so we shall be probing into the question of what the offender is going to do at the centre. I think that the Minister can expect lots of probing and questions when we come to that subject in Committee. Deferment of sentence has worked well in Scotland and, perhaps unofficially, has worked well in England. There are courts which have used adjournment for the purpose of deferring their final conclusions; but it is just as well that it should be put on a formal basis by this provision in the Bill. I would join with my noble friend, Lord Wells-Pestell, in hoping that the magistrates, or the Crown Court as the case may be, could have a temporary supervision order if they wished it, but it should not be mandatory.

The only other clause upon which I think I need comment is that relating to the release on licence without the recommendation of the Parole Board. I think everybody would agree that it is completely indefensible to keep a person in prison merely because the Parole Board is under pressure. We welcome this provision in the Bill which would enable action to be taken on the advice of the local committee. Then there is a reference to the Court of Appeal where a person has been acquitted. We shall certainly have some questions on this matter in Committee. It is not sufficient to say that the acquittal will stand and that the person acquitted will have his costs paid; he requires far greater protection than that. He requires protection against the aspersions on his character that may be made by the publicity arising out of the appeal. We shall certainly ask in Committee how that can be done. Then there are omissions, particularly those relating to bail, to legal aid and to complaints against the police, mentioned by my noble and learned friend, Lord Gardiner. Those too will be followed up in Committee. We wish the Bill well in its progress through the House, but we hope that the Minister will be willing to be influenced by reasoned argument on details in Committee. I think it should be said that the real success of the Bill will depend upon the resources that are made available to carry out its provisions.

6.37 p.m.


My Lords, I have two congratulations to start with; because not only is there the maiden speech of my noble friend Lord Mansfield, which I enjoyed as much as other noble Lords who have already congratulated him on it—and from which, incidentally, I benefited in my education—but there is the noble Lord, Lord Jacques, who I think for the first time has spoken from the Opposition Dispatch Box in winding up a debate. I think that this is an achievement which deserves a word of congratulation. I remember the first time that I did it; and I do not think that I was as calm as was the noble Lord. The noble Lord was very good, as other speakers have been, in welcoming this Bill. The noble Lord, Lord Jacques, said a great deal to underline and expand upon some of the things that I had to try to deal with, albeit sketchily, on the infrastructure of the Bill and I am grateful to him for that.

I have to curb my desire to go into the wider field of penal philosophy. It would be easy to be seduced by the noble and learned Lord, Lord Gardiner, the noble Lord, Lord Donaldson of Kingsbridge, and others into attempting to consider what is happening in Holland, or to consider some of Lord Donaldson's more far-reaching views and whether we should have a Royal Commission or wait for Edmund Davies, or both. But this debate is about a fairly detailed Bill and if ever there was a large number of questions that noble Lords have asked on matters that require to be explained, I think it was on this occasion. I suppose therefore I should not be altogether out of order or failing to respond to the House if I tried to get on with the details although we shall have many opportunities to discuss them at later stages.

Perhaps I may deal with one or two subjects touched on by more than one noble Lord before coming to individual points raised in the course of speeches. I have listened with interest to the argument about the mandatory suspended sentence. I have been keeping the scoreboard as we have gone along and I think that I have three in favour of Clause 10 and three against; and the noble and learned Lord, Lord Gardiner, who I think changed his mind, so that I am not quite sure of his present opinion. It may therefore be that he tips the balance in this debate; though I think that if I add myself I would then arrive at a completely all-square situation. I do not think I can accept the statistic the noble and learned Lord gave of 2,000 people. I think it was the one that the right honourable Member for Birkenhead produced in another place. But I think it was a guess on his part, and I would not place any more weight upon statistics in this matter than I think the noble and learned Lord, Lord Morris of Borth-y-Gest, thought one could place on them. I hope the total may not be as large as that, but I doubt whether it is possible, for the sort of reasons given by the noble Baroness, Lady Wootton of Abinger—that it is very difficult—to work out the details of a matter like suspended sentences and to follow through and see what would or would not have happened if slightly different circumstances had prevailed at the time. My Lords, there the clause is, and it looks to me as though we shall have the opportunity to discuss it in a considerably wider fashion in Committee, because we have here many magistrates with personal experience and fairly strong points of view.

What I think needs a word of mention is the provision in Clause 10(3) about which the noble Baroness, Lady Wootton of Abinger, asked. Although the drafting may perhaps appear to her not to be as clear as it might be, there is no doubt about the meaning of it; that is, that the court shall not sentence somebody to a suspended sentence unless they would have thought that imprisonment was right anyway. This, my Lords, is cardinal because it is this which has been in the forefront of our minds when we have been considering the statistics—however unreliable they may be—which have shown that the number of fines imposed has dropped as have the number of probation orders since suspended sentences have come in. Therefore there is some reason to suppose that courts have been using suspended sentences in cases where otherwise fines or probation orders would have been proper. It is to prevent this that we have put in Clause 10(3). I think that this goes some way to meet the point made by the noble Lord, Lord Jacques. It may not go far enough but I think it is the same subject. We must see that courts use suspended sentences only when otherwise they would have thought imprisonment the only answer. That goes for first offenders as well as for subsequent offenders. Clause 13 is relevant but Clause 10(3) is valid right across the board for everybody; and for what it is worth we are only reinforcing, by making statutory, what the Court of Appeal said in the case of O'Keefe not very long ago.


My Lords, I think I fully understand what the clause requires magistrates to do, but I wonder whether the noble Viscount can explain why, if imprisonment is the only answer, it should be imprisonment only on the hypothetical condition that something else happens in the future.


My Lords, the hypothesis is that nothing will happen in the future; in other words, that the person will commit no further offence during the period of suspension. That is the philosophy behind suspended sentences which I thought was applicable. If the noble Baroness shakes her head it may be that we shall have to go into this matter further, but I always understood the principle to be that it was a matter for imprisonment now, save for the fact that the court has power to suspend, and would do so as long as nothing happened to re-activate that sentence. However, my Lords, perhaps I had better leave it there for the moment, and see what happens on Committee stage, if we have one, which I trust that we shall.

Three noble Lords mentioned Clause 30: the noble and learned Lords, Lord Gardiner, and Lord Morris of Borth-y-Gest, and the noble Lord, Lord Jacques. It appears that, as in another place, this House would like to discuss this matter. I think the message that I detected from the speeches on it was that there is some desire for anonymity on the part of the person whose case happens to be the source of this appeal, rather than that we should abandon this power to clear up the law. The noble Lord, Lord Jacques, said that the Government would be pressed on this clause in Committee. May I say that I am only too happy to look at constructive suggestions about how we may maintain anonymity and not involve a reputation, while at the same time clearing up these points of law? I look forward to suggestions, and I shall also do my own thinking on it, and we will see whether anything can be done.

Several noble Lords touched on the question of criminal bankruptcy but I think that the consensus of opinion was against the noble and learned Lord, Lord Gardiner, that this was just "window dressing". It may be that it is not going to be used very often. On the other hand, I doubt that the noble and learned Lord, the Lord Chief Justice, would lend his signature, with that of his Committee, to such a suggestion were it only "window dressing". I believe that a noble and learned Lord of that stature and experience would think that there was rather more to it. It was at this point that I welcomed for the first time the intervention of my noble friend Lord Mansfield. He, too, saw the possibility of some use of this and—dare I say it?—my noble friend is the one who has most recently been practising in the criminal courts—though I appreciate that many other noble Lords have been sitting in judgment in them—and so he has a certain amount of practical experience which he may bring to bear on this matter. I noticed that the noble Baroness, Lady Wootton of Abinger, also thought well of it and that it should be tried out.

I think perhaps that in my opening speech I may have given an indication that there was an appeal in the Bill against the criminal bankruptcy order itself. This is not so. The appeal is against the sentence to which it was attached and that right is open to the offender, the convicted offender, and he may subsequently take part in the proceedings.

My Lords, we then came on to the point where the analogy with the Children and Young Persons Act 1969 first reared its head. I am not really sure that I want to go into the difficulties which attended and followed on the passing of that Act. I certainly do not want to attribute blame, though I know full well from my own experience whit extraordinarily difficult problems it has raised. Even in my Ministerial capacity I find that this, together with junior detention centres and other cognate matters, has left a dreadful vacuum—together, of course, with the impending Report of the Advisory Council on Young Offenders, which does not add to the general clarity of thought on this subject. But I take the point: if the country was not prepared for the introduction of the practical side of that Act, then we have seen the result of that lack of preparation; and we must not allow the same thing to happen again with community service, with day centres, or, indeed, with some of the other experimental aspects of this Bill. My noble friend Lady Macleod of Borve and the noble Lord, Lord Wells-Pestell, both stressed this point, speaking, as I know, with a great deal of personal knowledge.

As for the community service orders, I agree with the right reverend Prelate the Bishop of Rochester that this needs most careful and imaginative preparation; and with that I hope it will be a good investment, even in pure money terms as he suggested. This is the point of starting on the specific centres, the specific areas, with I hope the advice of all who will be helpfully concerned, so that we may be quite sure that we have got a viable method of progress before we start to spread it. The noble Lord, Lord Donaldson of Kingsbridge, asked for speed in spreading it, as did, I think, my noble friend Lord Digby. Within the experience that we gain, and within the resources and the people—because people and their quality are very important in this matter, as so many noble Lords have stressed—I hope we will be able to spread it. But as with all experiments, one has to face the possibility that problems will crop up and that they will have to be cured. I cannot give any assurance to the House that by any given date every county in England and Wales will have schemes of this sort suitable for those offenders who could be helped by them; but if the enthusiasm that has been expressed, not only in another place but in this House this afternoon and outside, for community service orders is reciprocated by co-operation and help on the ground, then I believe we shall be going in the right direction.

To some extent, the same thing applies to day centres—certainly, to the whole idea of conducting them on an experimental basis first. Noble Lords wanted to know some more about day training centres and I can perhaps help a little on this. The noble Lord, Lord Jacques, my noble friend Lord Digby, the noble Baroness, Lady Wootton of Abinger, and the noble Lord, Lord Wells-Pestell, all asked for details of them. I am in a little danger here of giving details which would perhaps be thought to apply to all day training centres forever wherever they might be. I do not believe that the operation would be as inflexible as that, and the noble Lord who tried to get me to incorporate in the Bill the type of centre by description and the type of offender for whom it should be intended, is, I would suggest to the House, wide of the mark. This would be a disastrous lack of flexibility. We should leave the matter as it is and try these experiments to see for what sort of offender these day training centres are suitable. So fat as we can see, with the four areas who have agreed to experiment the centres will be designed to cater for offenders who have served a previous sentence of imprisonment and who have poor work records; to some extent, as the noble Lord, Lord Jacques, said, work-shy people who come from socially deprived backgrounds; the sort of people about whom the noble and learned Lord, Lord Gardiner, was talking—the seedbed of crime. They are likely to be men with chronic social problems and not, mostly, young people, unless all other training methods have been tried first and have failed.

What also seems to be agreed among those who are preparing these schemes is that the Probation Service would be very much involved. They would, as is usually the case, prepare a social inquiry report in any person appearing before a court who might be likely to be sent to a centre of this sort, and that report would advise the court on the training centre, the staff and the suitability of the person the court has before it. Indeed, after a little while courts will begin to know their day training centres and the sort of people who are suitable for them. There will also be the possibility that the probation officer can say whether the particular offender is not fitting in, or if the system is not working out to his benefit. There is a discretion under Clause 19(4)(a) whereby the probation officer can direct the offender not to attend the centre any more. So there is a certain amount of flexibility there. So far as I can tell the House at present, the sort of people likely to go to the centres are those with a poor work record and those who are socially deprived. It may be that it is a good thing that young people do not fall into that category, but I fear that it will not be so much a mixture of ages as I think one noble Lord rather hoped for.

There were some comments about deferred sentences. Here I have a score of two all: two noble Lords would like supervision orders and two would not. I am afraid I must be quite firm about this question of supervision orders. The noble Lord, Lord Hamilton of Dalzell, talked about the extra pressure that would be put above all the others on the Probation Service, supposing this were not written into the Bill. It is probable that those who appear to have taken sides on this are not, in practice, so far apart as all that. The courts are going to know their own probation officers' case loads and their availability to advise. They will know whether they dare add to the job of the probation officer by asking for something like a terminal report. I have little doubt that they will listen to the probation officer when deciding whether to defer a sentence in the first place. It is in the cases where the court feel that supervision, care and the other qualities of probation are really needed that I would have thought that they would be more likely to make a firm probation order rather than just deferring the sentence. After all, they can perfectly easily do that and attach some conditions to it as well. In practice, when one thinks about it, I doubt whether there is much in dispute on this point at all. There again, if noble Lords wish to deal with it later then I shall be happy to consider it again.

I come now to some individual points raised in the course of the debate. The noble and learned Lord, Lord Gardiner, who was good enough to give me notice, as were other noble Lords, raised a number of them. He reminded us about the position of the police. I am not sure that the Government of which he was an ornament did a very wise or a helpful thing. It may have been necessary to stop recruitment. All police cannot have assisted in the direction that he would have liked them to go. Fortunately it has now been possible to lift this ban on recruitment. There are a few figures that I could give the noble Lord. I do not think they go exactly to the point of restoring the balance of the proportion of police to indictable offences, but they are not unhelpful; they go to the end of April this year and they are the latest available. There were then 98,200 police officers on strength against an authorised establishment of 110,100; 21,500 were in the Metropolitan Police against an authorised establishment of just over 26,000. So the national deficiency was 10.8 per cent. and in London 17.7 per cent. Nobody is pleased about this situation but I think it is not so bad. The net gain for England and Wales, including London, for 1971 was just over 3,000, which compares with 1,900 in 1970 and 980 in 1969; so the figure is rising. For the first four months of this year the net gain was 1,356 compared with 854 for the corresponding period in 1971 and 784 in 1970—all signs of progress. The pay award, which with the police, just as with the probation officers, is very important, was designed to improve recruitment and to reduce wastage. Perhaps this is not too despairing a situation, though I share the concern of the noble and learned Lord, Lord Gardiner, about it.

The Probation Service was also a matter on which he wanted some information. The noble Lord is perfectly right that in the first four and a half months of this year four more people resigned from the London Service than were appointed; but nearly 450 officers will be coming out of probation training courses during this year, and they will be available for appointments, compared with 350 last year. It is to be hoped the Butterworth Inquiry will be reporting in August and that there will be a favourable reaction as regards the career structure and the terms. The position in Inner London is, I think, accepted in the Service as not being typical of what is happening elsewhere.

The position overall is that at the end of May there were 3,653 established probation officers; that is 500 more than at the end of December, 1969 and over 1,000 more than at the end of December, 1966. So the figure is coming up. Noble Lords may be right in saying that we should be disappointed in this; but I hope not. I hope that with the perhaps better pay recommended by Butterworth, and the greater interest created by the sort of tasks that this Bill will give to the Probation Service, we may be able to attract a few people back from the local authority social service sphere, even though they are particularly keen on dealing with children.

The noble and learned Lord and some other noble Lords mentioned two points: one concerned bail—a question on which the noble Lord, Lord Jacques, touched—and the other legal aid. On these matters there are fairly complicated answers which I do not particularly want to deploy in full this evening, because it may be that noble Lords will want to put down new clauses or something of that sort. But perhaps I can just outline the answer that I have on these two points. First of all, as to bail, I doubt whether the criteria for the grant of bail should be laid down in the Bill. A good deal of it appears in the noble and learned Lord's own Criminal Justice Act 1967 in the case of magistrates' courts. I do not think any further statutory limits on the court's discretion would be very wise; and I do not think they would improve the present situation, bearing in mind that the proportion of remands on bail has increased both in the cases covered by the 1967 Act citeria and in the cases not so covered. So I doubt whether this aspect is susceptible of much more Statute Law. Rather, I should like to see more help being given to magistrates in the carrying out of the difficult forecasting exercise as to what sort of people can safely be let out on bail. There is a Working Party on Bail Procedure operating at the moment. It is a very experienced Working Party, and they will be reporting in due course, when we can consider what they have to say.

Then there is the administrative measure, and to some extent financial measure, which the noble Lord, Lord Jacques was keen on—things like bail hostels. I have already made a speech about those. We have also introduced recently a method by which medical examinations can take place on an outpatient basis so that people do not have to be remanded in custody from medical hospitals. This innovation is working in London at the moment—I believe at Pentonville and Holloway, although I may be wrong in saying that—and we are hoping to extend it.

Then it is most important to reduce the length of time between arrest and trial, or between committal and sentence and that sort of thing. My noble and learned friend the Lord Chancellor is, I know, always engaged in trying to reduce that time: and that was one of the reasons for introducing the Courts Act. There is provision in Section 13 of the Courts Act which helps a little by allowing an appeal against a refusal of bail to the Crown Court from the magistrates, in addition to the ordinary appeal to a judge in chambers. That Act has not been operating very long yet, and it may be that people do not know much about it. Those are the sort of things that I think we should be concentrating on at the moment rather than changing the Statute Law.

Coming on now to legal aid, the noble and learned Lord suggested that the Widgery criteria should be made statutory. The noble and learned Lord the Lord Chief Justice is always coming into this matter, which is natural since that Report was his other great report in recent times. Since he reported, more than three times as many people are getting legal aid as were at that time, and individual courts are, I think, following the Widgery criteria. But my honourable friend the other Minister of State agreed on the Report stage in another place to have a circular drafted to remind courts of these criteria. This circular will be issued. The other difficulty about these criteria is their nature: for instance, whether the charge is a grave one, in the sense that the accused is in real jeopardy of losing his liberty or livelihood or of suffering serious damage to his reputation. That is easy enough to state, but I do not think it would look very well on the Statute Book; it does not seem to be very precise. It is the sort of thing that a court can entertain, but I am not sure that our sysem of drafting Statutes would lend itself readily to putting that in a Bill. Perhaps the noble and learned Lord might like to consider those points before he decides whether or not to put down a new clause on this subject.

The noble and learned Lord went on to refer to time spent in custody. As he mentioned, the parole side of it is dealt with in Schedule 2 by an amendment to Section 60(2) of the 1967 Act. The Prison Rules are in the process of being amended, and they will come into force in December, but retrospectively. The point of this is that it takes a long time to recalculate enormous numbers of sentences. It is no use bringing them into force too soon, or there will be total chaos. What is proposed is that these two matters will come into force at the same time. That, I think, deals with both limbs of the noble and learned Lord's point. If it was he who started this particular proposal in Parliament, we are grateful to him, and I imagine that many a prisoner will be, too. The noble and learned Lord asked about Clause 22, Mrs. William's point about how to claim back goods in police custody. I am afraid that this point has been a little more thorny than some, and we are still considering it, but the initial view I have formed is that the machinery here is about right, and if you relax it any further there is the greatest danger of letting the criminal, by one ruse or another, get his property back, which is the last thing that we want. But again, constructive suggestions from the noble and learned Lord will be happily received.

Various noble Lords, including the noble and learned Lord, Lord Gardiner, mentioned statutory social inquiry reports. I think the best thing that can be done about this, whether in any case or in relation particularly to supervision orders, which is the issue on which the noble and learned Lord raised this matter, is to advise the courts of the desirability of having these reports. We shall advise them, probably in the same circular that goes out to explain this Bill, rather than make it statutory, because if you make it statutory even I can think of a snag: something goes wrong with the Probation and Aftercare Service; there is not a report, and therefore the man cannot be tried and has to be put back. This could cause more trouble than it is worth. If the courts are aware of the desirability of having these reports—and I think they are increasingly aware of it—and if the Probation Service have enough manpower to provide it, which is most earnestly to be wished, I cannot see why in practice there should not be such a report before a court in almost any case of any gravity. I do not think we should want it in motor-car cases, but certainly in anything that is liable to endanger somebody's liberty or livelihood.

Finally, the noble and learned Lord talked about interlocutory appeals. I have been looking at the case of Collins in 1970 Criminal Appeal Reports. If the noble and learned Lord wants to deal with this subject further in Committee, I shall enjoy quoting to him the reasons why the Court of Appeal thought it was unnecessary for them to do anything about it, because they are quite weighty reasons which I enjoyed reading. But that is a completely new matter so far as I am concerned; I heard of it only this morning and have had little time to do more than read what the Court of Appeal said. If the noble and learned Lord knows of any other examples of where this procedure has gone wrong other than in the case of Collins, I shall be glad to know of them and to consider the circumstances. I think I have dealt with the points raised by the noble and learned Lord, Lord Morris of Borth-y-Gest, in what I have already said.

I come now to my noble friend Lord Mansfield. Now that he has broken his silence, I hope that he will let fly with all his experience in Committee. I agree with him that we need probation officers who are there not only in quantity, but in quality, and I am glad to be able to tell the House that almost all of them now go through proper, fully-qualified social training courses before they are taken on. My noble friend asked about reparation under Clauses 1 to 5 and suggested that the victim would no longer be heard to ask for it even if he was there. My understanding of the Bill is that if he was there he would still be entitled to speak, and to be heard, and all that is being done is to take away the requirement that he must be heard before any reparation can be awarded. We are going to circularise the courts about this and remind them of their need to consider reparation in every case.

The other point that he raised concerned Section 3 of the 1961 Act. He is probably aware that this was debated at length in another place. My noble friend quoted a letter from the Advisory Council dealing with the young offender situation. Rather than read it out, perhaps I might refer my noble friend to the Standing Committee Report, 22nd Sitting, on March 16, columns 1040 and 1041, where the Chairman of the Council (Mr. Younger) had written to say that the repeal of Section 3 would not accord with the way in which their minds were at present working. In those circumstances, I am bound to say that I would almost certainly resist trying to go back at this juncture, when we are awaiting the Report, to a pre-1961 situation.

I think that the noble Baroness, Lady Wootton, has been so generous in her reception of this Bill and is thinking so much along the same lines as ourselves, particularly about the implementation of the community service side, that I really need not add anything except my thanks for her amplification of the philosophy which underlies it. I was glad to hear my noble friend Lord Amory join in on very much the same theme. I think we are all inspired by very much the same ideas on this subject. I do not think it is going to be the sort of "soft option" that the right reverend Prelate thought it might be, because the people concerned are too sensible to allow this to happen and too well aware of the danger of it. Whether or not it would be "week-end" community service is something one would have to look at as part of an experiment to see how this scheme would best work.

The noble Lords, Lord Hamilton of Dalzell and Lord Donaldson, both asked about the approach to the community service order. It is perfectly true that, as the noble Baroness said, we will not have the probation officer or one of his ancillaries standing over a man to see that he is not smoking under a tree; but nevertheless it will be the Probation and Aftercare Service who are in charge of the order itself, and it will be for the probation officer, if the offender will not co-operate or something goes wrong, to take the man back to the court for further consideration. There are a number of things which can be done, but it is for the probation officer to take that step. I will look again at this, but I believe it is in the Bill.

The noble Lord, Lord Wells-Pestell, had some specific points and I think I have already covered some of them. I do not think that he is right about Clause 11(9). It is drafted on the same lines as the general legislation on probation orders. Although at present it is only going to be the Crown Court (and the magistrates' court in excise cases, and so on), there is power in subsection (2) to relax this. Therefore we need to draft it on the basis that it could be available to all courts in the end when the probation services are large enough to deal with them. The noble Lord also mentioned Clause 11(4), suggesting that the man should lead an honest and industrious life. The effect of the order has to be explained to him under Clause 11(11) and it would not surprise me if the magic words crept into the formula whereby the court would advise what it was he had to do to stay out of further trouble. This too might meet the point raised by the noble Lord.

My noble friend Lady Macleod of Borve asked me about habitual drunks. "Habitual", of course, is not in the Bill: but we would rely on the constable finding the drunk to be able to sort out the chronic one from the less chronic one. We are not suggesting that the intoxication centre is to be used for the Friday night roisterer. I should be surprised if he (or she perhaps) is the sort of person who got in there. We shall be giving some guidance to the police in the areas where these centres are set up on how to deal with such people. I may have given the noble Lady the impression that the centres would not be at hospitals at all. They will be based on hospitals but they will be specially and carefully-chosen hospitals and not just the local ones. That is what I think perhaps the noble Baroness had in mind. We are going to set this up extremely carefully, with a lot of extremely skilled staff, and there will be 24-hour staffing so as to make quite sure that it works. I hope what I have said has taken some of the worry out of the mind of the noble Baroness about what may happen in North London.

The right reverend Prelate the Bishop of Rochester asked me about voluntary hostels. They will be allowed to continue: this must be a partnership, and I have no doubt whatever that there is no question of the Probation and Aftercare Services trying to hog the whole thing. We are still considering the Expenditure Committee's publicity recommendation. There will be a report on the work of the Probation Department of the Home Office and the Probation and Aftercare Service in general in the years 1969–71: it is due to be published fairly soon, later this year. I hope this will give some indication to Parliament and public of what is going on, but I should like to consider further what the right reverend Prelate has said.

The noble Lord, Lord Donaldson, asked about other establishments under Clause 44. The answer is that they get their money under Clause 47(4)(b). My noble friend Lord Digby spoke about attendance centres. Here we are inclined to agree with the noble Baroness, Lady Wootton, in her report (chapter 5 and recommendation 18) that we would not expand the detention centres beyond the two that are at present in existence until we see how the community service order system works. My noble friend also mentioned consent for supervision under Clause 11. It has been left out on purpose. We do not want the offender whose sentence has been suspended, with whoever is concerned with the supervision order, to vitiate the whole thing by refusing to give his consent to a supervision order. We think this is wrong and there is no mistake here at all.

The noble Lord, Lord Jacques, made a number of other interesting suggestions about what we should look at—drug addict centres, the work-shy, medical examinations, and so on. I have dealt with some of his points: others perhaps go a little beyond the scope of the Bill. It may be that he will want to take them further in Committee. But as I said earlier, so much of what he said was welcome to my ears because it confirmed my own approach to the Bill. I hope that the noble Lord will think I have done him justice in what I have already said on some of his points. If he wants to take up more of them he has only to put down Amendments during the Committee stage—which he promised to do anyway.

Those, I think, are the main points that have been raised during the debate. I look forward to further enlightened, interesting and very well-informed debates at subsequent stages. I do think that your Lordships' House has done itself proud this afternoon. There is so much expertise even in those who pretended that they were rather "lay" in this subject, and noble Lords have shown that they are as expert as all the rest of us, whether it is the "laity" of the noble Lord, Lord Donaldson, or that of the right reverend Prelate. This is the sort of subject in which your Lordships' House excels, and I look forward to further stages, with my noble friend the noble and learned Lord the Lord Chancellor. We shall be arguing, I have no doubt, for at any rate two of the days with the noble and learned Lord, Lord Gardiner, in Committee. Meanwhile, I hope that this Bill may be given a Second Reading.

On Question, Bill read 2a, and committed to a Committee of the Whole House.

[The Sitting was suspended from 7.20 p.m. to 7.30 p.m.]