HL Deb 21 September 1972 vol 335 cc1286-399

2.58 p.m.


My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(Viscount Colville of Culross.)


My Lords, the rules of this House regarding formal tributes are rigid and must strictly be adhered to, but before we pass to the Report stage of this Bill, may I, with your Lordships' permission, make use of this Motion, which is debatable, to express my own sense, and I believe that of the House, of the loss which Parliament and the legal world have suffered by the death of the late Lord Parker of Waddington, until so very recently Lord Chief Justice of England.

It seems only a few days ago that I found myself in court wishing him a long and happy retirement, and it is sad indeed that this wish has not been fulfilled. I myself have known Lord Parker as an opponent at the Bar, as a Judge before whom it was always a pleasure to appear, and as a wise colleague and adviser of successive Lord Chancellors, of whom I was only the last. I will not weary your Lordships by a long recitation of his virtues, his immense contribution to English law, his unflagging industry and gentle and cultivated personality whom we all knew and loved. But just let me endorse the worthy tribute which the Master of the Rolls paid elsewhere in emphasising his qualities as a Judge: quick and concise without rushing his cases or losing patience or courtesy in the process, unfailing in his kindness and humanity without ever being weak, always considerate to the profession and to the public, helpful to the young, open-minded to argument without vacillation, shrewd in his judgment of character without being uncharitable. He was indeed an ornament alike to the profession of the law, and to the country to the service of which he devoted so much of his life.

We all think of his widow at this time. I will not say more. We honour and respect his memory, and many of us have lost a friend.

3.1 p.m.


My Lords, I should be grateful if I might from these Benches echo what the noble and learned Lord the Lord Chancellor has said about the late Lord Parker. Hubert Parker and I were born within 48 hours of one another; we were both called to the Bar and married within 12 months of one another, arid I have known him for the best part of half a century. I well remember his appointment. His predecessor had been a man of quite exceptional gifts but one who could be impulsive and impatient, and I think the Bar longed to see a quieter Chief Justice. We were also a little apprehensive that the Government—this being a Prime Minister's appointment—might revert to an earlier practice of appointing a Law Officer as a reward for political services. It was in those circumstances that the whole Bar were delighted at Hubert Parker's appointment—this modest and unassum ing man, an exceptionally good lawyer but applying his law with great common sense. He was, I suppose, essentially a middle of the road man, which was, I think, what we needed. He would not have been described as a radical, but it was because he moved with the times that he was the first Chief Justice in our history who both spoke and voted for the abolition of capital punishment.

I have particular cause to be grateful to Lord Parker. For obvious reasons, it is not easy for any Lord Chancellor to carry through a massive programme for the reform of our law and penal system which affects the judges, if the judges are found to be hostile to his proposal. I naturally always consulted the heads of Divisions—the Chief Justice, the Master of the Rolls, the President of the Probate, Divorce and Admiralty Division (the noble and learned Lord, Lord Simon of Glaisdale) and the Chief Chancery Judge. But I particularly consulted Lord Parker if a High Court Judge was to be appointed or upon any of the reforms I was seeking to introduce. No Lord Chancellor could possibly have had a kinder, more loyal or co-operative Chief Justice, and in nearly six years we never had any serious difference of opinion.

Those on these Benches would also like to extend to Lady Parker, who was so much of his life, our deepest sympathy on his sudden death.


My Lords, having known Lord Parker for a great number of years and having been with him and served under him in the Queen's Bench Division for several years, I should like to add a few words of assent to what has been said. He seemed to me to have all the excellent qualities of a good judge. He was calm, he was objective, he was fair; he listened attentively to argument and he could be quick and decisive in understanding the question and finding the answer to it. When he came to give his judgments, they were always careful, lucid and reasonable. He was extremely hard working. The story was that often when he was at the Bar—and quite frequently when he was on the Bench—he would go to bed early and rise at four o'clock in the morning to prepare for the work of the day. When he was Lord Chief Justice he was faced with some highly controversial problems. On those problems his views could not always gain universal acceptance but they were respected and carried much weight, and in most cases they were in the end accepted and they prevailed. As a man he had modesty and he had charm. He was liked as well as admired by all members of the Bench and Bar. His death is a great loss to our profession. We were proud to have him as our Chief Justice and I am sure we all should wish to extend our sympathy to Lady Parker.


My Lords, I wonder whether a layman might just add a few sentences. For a dozen years or so I was Deputy Chairman of the Magistrates' Association under the chairmanship of my noble friend Lord Merthyr, and I am sure that if he were here to-day he would want to say what I am trying to say. The friendship which Lord Parker showed to that Association gave us a great deal of joy. Whenever we had our annual conference in London, after court rose he made a point of coming to the opening session of the Conference to show his friendship towards his lay colleagues. No branch of the Magistrates' Association ever appealed to him in vain to go to address one of their meetings in any part of the kingdom.

I regret his passing very much, because of the friendship he showed and the service he rendered to lay magistrates who, much lower down the scale, were trying to carry out justice in this country. One of the great prides I had as a layman and a lay justice was when one day in your Lordships' House Lord Parker referred to me as his "noble friend". I felt that was just part of his kindness. I wanted to say just those few words.


My Lords, may I add one or two words to the tributes which have been so finely and justly paid by my noble and learned friends and by the noble Lord, Lord Royle, from the point of view of a Judge who was the head of a Division in the High Court during the time that Lord Parker was Chief Justice? Lord Parker was one of a generation of very great appellate Judges, but in one respect he was transcendent. I think his judgments will always repay study, but that quality to which I refer will not be immediately apparent: it was his amazing ability to give an extempore judgment in the most complicated case at the end of the evidence and argument, picking up every point of fact, every proposition of law, framed with superb lucidity and force, and every argument, however subtle and intricate. All were worked into a perfect form and pattern of judgment: everything in its place and a place for everything.

The other matter I should like to mention is from the point of view of the other Divisions of the High Court, and particularly the Probate, Divorce and Admiralty Division. Because of course the Queen's Bench Division was Lord Parker's primary and direct responsibility, and it was under exceptional pressure during his period of office owing to the increase in crime. But Lord Parker was always able to look at the judicial system—indeed, the legal system generally—as a whole, in the most generous, far-sighted and statesmanlike way; and as the noble and learned Lord, Lord Gardiner, said, his co-operation during a time of great change was of inestimable value to this country.

I venture to join in the expression of sympathy for Lady Parker, who played so great a part in sustaining Lord Parker in his prodigious labours.


My Lords, may I be permitted as a non-judicial Member of your Lordships' House to add my word of tribute to the memory of the very great colleague whom we have lost? He was a great friend and a splendid colleague at the Bar, and it was a privilege of inestimable value to be able to meet and talk to him at the Bar, at private gatherings and, later, on official occasions. Time and again, first before he was a judge and when I was a Law Officer, and then when he was Chief Justice and I was at the Home Office, his help was unstinting, his patience endless and his pudgment unerring: as the noble and learned Lord on the Woolsack rightly reminded us, always suffused with great humanity; he saw human beings as they are and not as they are sometimes described in the rule book. He brought to the unique office which he held in the most ample manner all those qualities of character, understanding and intellect which it requires. He was deserving in the fullest possible sense of all that confidence which his fellow citizens over the years reposed in him as the holder of that unique office. We have all lost a great friend, a great colleague and a great public servant. I venture to offer my sympathy to Lady Parker in the personal loss which she has sustained.


My Lords, I wish to associate myself with these tributes. I was privileged to be Governor of Tasmania at the time of Lord Parker's visit to the Australian sub-continent. He was welcomed not only for the great office he held but also for his personal charm and abilities. I assure your Lordships that few visitors to that great subcontinent have had such an effect on its inhabitants.

On Question, Motion agreed to.

Clause 1 [Compensation orders against convicted persons]

3.13 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 1: Page 1, line 10, leave out from beginning to ("make") and insert ("in addition to dealing with him in any other way may, on application or otherwise,")

The noble Viscount said: My Lords, when we were discussing this Bill in Committee my noble friend Lord Mansfield drew attention to the position of the victim of crime who wanted to claim compensation under the initial provisions of the Bill. It remains the firm view of the Government that it is time that the courts as a matter of course thought in terms of compensation, and we intend to do everything we can to encourage them in that respect. One must remember that there are limits to the extent to which the courts can go into the complications of claims of loss, which might be very complicated and be much better dealt with by the civil courts. My noble friend pointed out that, unlike in some previous provisions, nothing was said in the Bill about the position of someone who wanted to apply for compensation. I said at the time—I am advised that this is quite correct—that there was nothing to prevent someone from applying although it was true that the Bill did not say that he could. I have sought further advice. We have looked at the drafting, and this Amendment—with it goes Amendment No. 2 to Clause 6 because it is on the same point—provides explicitly for someone who suffered loss to apply to seek compensation from the court. I hope that the Amendment has been drafted in such a way as not in any way to detract from the primary duty of the court; we believe it is for them to think in every case in terms of compensation, but I hope that it goes to meet the point made by my noble friend.

On the general subject, there were other instances in this area about which my noble friend was worried. One was the position of someone who had received compensation in the first place, if the matter went to appeal. He thought there should be provision whereby the victim who had received compensation should also be involved in the appeal. I have consulted with my noble friend since then and I think that on reflection he will not wish to pursue that very hard, and I confess that I think that would be unnecessary. I have looked into the matter and have talked with those who know about the Crown Court and the Court of Appeal. It appears to me that there is no doubt at all that the Court of Appeal will have the necessary information to judge whether or not the compensation should be maintained. For what it is worth, the past instances of this sort have never gone to the question of the quantum of compensation but to the question of guilt on which compensation depends in the first place. We have the machinery and practice in the appellate courts which will preserve the rights of the person granted compensation and we do not think that an Amendment is necessary in this respect.

The third point about which my noble friend was worried concerned the question of the review of a compensation order, which is dealt with in Clause 3. Again, I do not think an Amendment is necessary, and therefore none is down. I am able to tell my noble friend and the House, however, that we propose to make rules under the Magistrates' Courts Rules to deal with this matter and think they will cover the point my noble friend wished to make. Some guidance will also be given in the circular which will accompany this Bill, but the rules will be the important thing.

In general, the probability is that we will provide that when dealing with an application for review under Clause 3 magistrates should do so only after considering representations by the victim and that they should have before them, if it is a case where the civil court has adjudicated, the order of the court on the basis of which the application to review or alter the compensation order is made. Again, therefore, I can assure the House that the position of the victim who has been given compensation has not been overlooked and is in fact adequately protected. Those are subsidiary points to the main point in Amendments Nos. 1 and 2, in which we are specifically providing that he shall be in a position to apply for compensation in the first place, and we are amending the Theft Act as well to make that clear. I beg to move.

3.20 p.m.


My Lords, I begin by thanking my noble friend for taking a sympathetic view of the first matters which I ever raised in your Lordships' House after my maiden speech. If I greet the news with two rather than three cheers it is not through any ungenerosity on my part; it stems from a real worry as to what these new provisions which deal with compensation are expected by the Government to achieve. My Lords, there is no doubt that the public at large, and certainly that part of the public which deals with consumer interests, expects a very great deal from this Part of the Bill. I am worried that they will be considerably disappointed. One phrase which my noble friend used at an earlier stage was that the courts would be encouraged "to think compensation". I would be much obliged if he could tell us by what means the courts are going to be encouraged to think compensation because there is nothing in this Bill nor in this clause which is going to encourage anybody. What worries me is that the attitude of the courts will be precisely the same as it was under the old Criminal Justice Act and the 1870 Act which went before it.

Those of your Lordships who read the magazine Which? and read the editorial comment, will have noticed that in the last two issues mention has been made of the Criminal Justice Bill. In the September issue the editorial said: A gap in the Trade Descriptions Act has been that it has not provided for the customer misled by a misleading advertisement to get compensation for any loss he has suffered. So CA's legal officer worked hard to get an amendment to the Criminal Justice Bill which would bridge this gap. The Criminal Justice Act now incorporates this amendment and the misled consumer can get compensation and this is a real advance in consumer protection. I suppose there are two lessons to be learned from that. The first is that, as we all know that the Second World War was really won by the Americans without any help, those who have laboured to amend this Bill know that it has really been amended by CA's legal adviser. More important, so far as the Consumers' Association is concerned, they imagine that people who have had a spoiled holiday in Spain will be compensated by a magistrates' court when a tour operator is prosecuted under the Trade Descriptions Act. That might be quite a complicated sum to work out. Is this the sort of matter which my noble friend is saying ought to be transferred to the county court or left where it is in the magistrates' court? My submission would be that there is no better place for it to be dealt with than the magistrates' court where the magistrates are seized of all the facts and can properly make a judgment, but I very much doubt whether this is in the Government's mind.

So far as Clauses 2 and 3 are concerned, again let us suppose that a family has had a very uncongenial holiday in Spain and the tour operator has been summoned in a magistrates' court. The tour operator, who may well be well advised, runs for cover and pleads guilty. The prosecution are represented by a local solicitor. I have nothing against local solicitors, but very often in this sort of case the local solicitor may considerably over-state the case. The magistrates feel indignant and in this sort of case they impose a small fine and they may make a large compensation order. When the matter reaches the Crown Court, my noble friend will realise that there is nothing on the record at all except the fact of the conviction, the amount of the fine and the amount of the compensation order. I ask, how is the matter then to be adjusted in the Crown Court when the only people with the right of audience will be whoever puts the facts for the prosecution and counsel—one hopes it is counsel—for the appellant, who will try with all his might to get the compensation order reduced? It is on this practical sort of question that my worries have been based and I am bound to say that so far they have not yet been answered. With that—and I hope I have not taken up too much of your Lordships' time—I thank my noble friend at least for making Clause 1 more apparent to the general public than it was before.

3.24 p.m.


My Lords, what I should like to do, without reading it all, although it is quite short, is to remind my noble friend Lord Mansfield. of Chapter 10 of the Report of the Advisory Council on the Penal System, Reparation by the offender. The way in which the Government think that we can deal with this matter is the way which is set out in that Report and it is the way that was finally recommended to us by the Committee under the chairmanship of the noble and learned Lord the Lord Chief Justice. I think what he recommended is fairly explicit and so far as I have ever heard we have no reason as a Government to dissent from what he said. To lay down in this House, or indeed for Government to lay down anywhere. the exact circumstances when a court might deal with a spoiled holiday by way of compensation order rather than to say it is too difficult seems entirely inappropriate, but I would remind the House that the Committee to which I have just referred said that it did not wish to exclude absolutely an order of compensation where the assessment of loss is a difficult one. I have little doubt that courts, both the magistrates' and the Crown Court, will experiment with this to see how far they can sensibly go.

As to appeal, the primary appeal no doubt will be from the magistrates' court to the Crown Court; that is, by way of a re-hearing. Certainly in my experience when I used to go to quarter sessions —and I do not think the Crown Court is very different—one had to go over the whole of the evidence again. The facts are all there. The prosecution starts and the prosecution is fully seized of the facts. They are all argued out and if it is an appeal on conviction as well as sentence, from there on it is discussed again, as it were, from the beginning. I cannot see why that court should be in a worse position than the magistrates' court in terms of the information which is before it.

If it goes on appeal through the Court of Appeal, Criminal Division—the Lord Chief Justice will tell me if I am wrong —I believe that the court would wish to have all the facts stated to it by one side or the other, or probably both, before coming to a conclusion on the matter. If the court was in any doubt about it it might ask for further information to be brought to the court, but it does not seem that the Court of Appeal, Criminal Division, is likely to make rash and unguarded variations of orders on appeal from the Court below on the basis that it has not enough information. I should have thought, particularly since it was the noble and learned Lord himself who considered this, that he would make perfectly certain that the Court of Appeal did not do any such thing. I therefore hope that my noble friend will take account of the fact that we have looked at this matter quite carefully, not only on our own but by reference to the enormous amount of work that has been done to prepare this Report. I hope that he will perhaps add another half cheer when he reconsiders this to-morrow.


My Lords, I have no doubt that when a compensation order is appealed, whether it comes from the magistrates' court or originally from the Crown Court, the appellate court will be fully seized of the facts before it considers the propriety of the compensation order.

On Question, Amendment agreed to.

Clause 6 [Restitution Orders]:


I beg to move Amendment No. 2:

Amendment moved— Page 4, line 30, at end insert ("or on the application of any person appearing to the court to be interested in the property concerned.")—[Viscount Colville of Culross.]

On Question, Amendment agreed to.

Clause 7 [Criminal bankruptcy orders against convicted persons]:

3.28 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 3: Page 5, line 41, leave out ("and").

The noble Viscount said: My Lords, with this Amendment I think it would be for the convenience of the House to consider Amendments Nos. 4, 5, 6, 30, 31, 32 and 33. When we come to those other Amendments I shall simply move them formally. This has all to do with the question of unravelling a criminal bankruptcy; that is to say, the machinery whereby one can see that a criminal who has managed to get away with the loot does not so dispose of it before he is brought to trial and a criminal bankruptcy order is made against him and the loot is not able to be recovered by the machinery of the criminal bankruptcy order. This is a complicated matter. We are indebted to the interest of the Department of Trade and Industry in the matter of bankruptcy.

I told the noble Lord, Lord Jacques, who from time to time was the speaker from the Opposition Front Bench on this Bill, that we were making progress here. Here is the fruit of our deliberations with the Department of Trade and Industry. In essence, what we are doing is to allow the High Court on an application of the Official Receiver who will be the trustee in bankruptcy to look at dispositions of property right back to the time when the offence was committed. This goes further than the Bill as it now stands. There will, therefore, be power to get at property which has been stolen or otherwise misappropriated so that it can be brought into the bankruptcy and thereby restored to those from whom it was taken. But at the same time, we are providing for protection for people who have after that time dealt in good faith with the property so that if they bought it for value they are not subsequently deprived of it under the criminal bankruptcy.

There are other subsidiary and minor powers which the High Court can operate in these circumstances, all of which are designed in accordance with the recommendations of the Report chaired by the noble and learned Lord the Lord Chief Justice, to see that this particular machinery is effective in order to prevent criminals being able to store away their booty and return to enjoy it later when they come out of prison. I can explain all these but they have been very carefully worked out in conjunction with those who are expert in the law of bankruptcy. I recommend them to the House as a substantial improvement. The pur pose of them is as I have described. I beg to move.

On Question, Amendment agreed to.


I beg to move Amendment No. 4.

Amendment moved—

Page 6, line 3, at end insert— ("and (d) the date which is to be the operative date for the purposes of section (Recovery of assets for criminal bankrupt's estate) below, being the date appearing to the court making the order to be the earliest date on which the offence or, if more than one, the earliest of the offences, was committed.")—(Viscount Colville of Culross.)

On Question, Amendment agreed to.


I beg to move Amendment No. 5.

Amendment moved—

Page 6, line 17, at end insert— ("(7) In this Act "criminal bankruptcy proceedings" means proceedings pursuant to a criminal bankruptcy petition or a petition under section 130 of the Bankruptcy Act 1914 presented by virtue of Shedule 1 to this Act.")—(Viscount Colville of Culross.)

On Question, Amendment agreed to.


I beg to move Amendment No. 6. This is of course the substantive provision which gives effect to what I have just been saying.

Amendment moved— After Clause 9 insert the following new clause:

Recovery of assets for criminal bankrupt's estate

".—(1) Where a person is adjudged bankrupt in criminal bankruptcy proceedings, the official receiver (and not a person appointed under section 19 of the Bankruptcy Act 1914) shall in the bankruptcy be trustee of the property of the bankrupt; and the following provisions of this section shall apply with respect to dispositions of property or any interest in property, made by the bankrupt, on or after the operative date, either by way of gift or for an under-value.

(2) On the application of the official receiver (in his capacity as trustee) the High Court may make orders requiring—

  1. (a) the disponee under any such disposition, or
  2. (b) subject to the following subsection, any other person who by virtue of any subsequent disposition acquired (whether or not from the original disponee) the whole or any part of the property or any interest therein, 1299 to transfer the whole or any part of the property, or such interest as the order may specify, to the trustee, or to make such payments to the trustee as the court thinks just with a view to making available to the creditors the full value of the property or interest disposed of by the bankrupt (including any increase in its value since the disposition was made).

(3) No order shall be made by virtue of subsection (2)(b) above against a person appearing to the court to have given full value for anything taken by him under a relevant disposition or to claim (directly or indirectly) through a person who gave full value.

(4) An order of the High Court under this section requiring a person to transfer any property or interest may include such consequential directions for giving effect to the order, and be made on such terms (including in particular terms allowing the person to retain or recover consideration given by him for any relevant disposition) as the court thinks just in all the circumstances.

(5) In this section "disposition" includes any conveyance or assurance of property of any description and "disponee" shall be construed accordingly.

(6) Nothing in this section is to be taken to prejudice any provision of the Bankruptcy Act 1914."—(Viscount Colville of Culross.)

On Question, Amendment agreed to.

Clause 10 [Suspended sentences]:

3.34 p.m.

LORD GARDINER moved Amendment No. 7: Page 8, line 12, leave out ("shall cease to have effect") and insert— ("(a) shall, as from the date of the passing of this Act, have effect subject to the following proviso: That the Court need not make an order under section 39(i) of the Criminal Justice Act 1967 where the offender has at any time before the commission of the offence been sentenced to any custodial sentence or has three or more previous convictions for an indictable offence. (b) shall, as from the 31st December, 1974, or such later date as the Secretary of State may appoint by order made by statutory instrument, cease to have effect.")

The noble and learned Lord said: My Lords, I beg to move this Amendment and to speak at the same time to Amendment No. 27 which is consequential. I express the hope that it will be accepted as readily as we have accepted the first six Amendments. May I begin with a question—because I know it is more convenient for Ministers if questions are asked early in case they do not happen to have the answer in their head. I have here a document which I obtained from the Printed Paper Office and which is headed: "Criminal Justice Bill (As amended in Committee)" and at the bottom is the number "(178)". On the back it says, "Brought from the Commons", and so on, "Ordered to be printed 2nd August 1972". This morning I found in the Printed Paper Office a document which is headed "Criminal Justice Bill (As amended in Committee)"; the number is "(178)" and on the back it. says, "Ordered to be printed 2nd August, 1972". The only difference in the front and back between the first document and the second is that the second document, in large letters, underlined, says on top, "In substitution for Bill (178) previously circulated". My Lords, the clause numbers are the same. I do not know whether one is expected at very short notice to read through the whole of both Bills to see where they differ. The question I would respectfully like to ask is, what is the difference between the two?

My Lords, we have 42 Amendments on the Order Paper. Those which proceed from my friends and me number nine, including one or more which are consequential. I hope this will not be thought to be an excessive number. We are not here to fight old battles over again. One or two of these Amendments have been put in the same form because they were Amendments which the noble Viscount said he would like to think about, others are intended as compromises. I hope, therefore, that this stage is not going to take a long time. But as this is the first of our Amendments, may I say a word about our general underlying view about the Bill? Three years ago the Home Office estimated that by 1975 our prison population would have reached the appalling total of 40,000. I am not a good enough historian to know how far back in our history we should have to go to reach such a total. In fact, by 1971—we did not have to wait until 1975—it had already reached the figure which the Home Office estimated we should reach by 1975. There has since been a welcome small reduction to 38,000, but there is, the degree of appalling overcrowding.

May I refer to two authorities in the matter? The first is Mr. Maudling, who moving the Second Reading of this Bill said: The conditions in our prisons—and this is certainly not the fault of the Government —are very serious. We must pay particular attention to this problem of overcrowding, which in itself is bad, but is also important in that it makes the job of the prison service much more difficult, and the possibility of rehabilitation and redemption far less likely than it would otherwise be. Similarly, last week saw the publication of the Annual Report of the Howard League and they said the same. They said that it …leaves us with one of the highest rates of imprisonment in Western Europe;… Clearly there is more than ever a vital need to reduce overcrowding in prisons. The conventional humane reason for this is to reduce unnecessary suffering for prisoners, and to enable hard-pressed governors and staff to forget the strain upon tempers, space, facilities for work and recreation, and even the capacity of the drains, so that they can concentrate on rehabilitation.…In the south-eastern region…there are plans to create 7,000 new places by 1979. One argument which deserves respect is that even if the prison population remained static several thousand extra places would be needed, merely to end the multi-occupation of single cells. I do not think there is anybody connected with this problem who is not equally concerned about the position on overcrowding. Our general approach to this Bill, therefore, has been that we very much welcome those provisions which, in implementing the recommendations of the Committee—which I am not allowed to call the Wootton Committee—made for alternative methods of treatment, and we greatly welcome them. But, of course, it is useless to pretend that this will affect more than a handful of people, at all events for a considerable time. These things, like community service orders and day-training centres, have naturally, and perhaps properly, got to be started in a small and rather experimental way. We have already had the example before us of how about a quarter of a century ago a lot of people thought it would be a good idea for young people kicking over the traces to be made to give up their Saturday afternoons to go to an attendance centre, instead of being sent to prison. These things depend partly on the Home Office—and it is not fair just to blame the Home Office: partly on the resources which the Chancellor of the Exchequer gives to the Home Office; and partly on the courts. The melancholy fact, if I have got the facts right, is that after 25 years, when one looks all over the country to see where these attendance centres are one finds that there is one in Greenwich and one in Manchester, and there is none anywhere else at all. And the two that there are, are not filled by the courts.


Those are senior attendance centres.


Senior attendance centres, yes. This Amendment is crucial to this underlying view, because what greatly distresses a great many people familiar with these problems outside the House is that while this Bill at least does something to provide alternatives to prison, it also contains provisions, of which this clause is the first and biggest, which are going to increase the overcrowding in our prisons. It is, I should have thought, for a civilised country, something of a disgrace, bearing in mind that, as prison rule No. 1 says, and as we have always agreed, people are sent to prison as a punishment and not for punishment, that 12,000 of them should have to live three in a cell made for one, performing at night all their natural functions in front of one another. And it is not surprising that even since we considered this Bill last there have been increasing disorders in the prisons and increasing evidence of the great difficulties of our prison staffs.

This Amendment has been put down because the existing provision in the Bill abandoning mandatory suspended sentences is estimated by the Home Office to be likely itself to increase the prison population by anything up to 3,500. That is a maximum, of course, but that is their view of the possible effect of abolishing mandatory suspended sentences. On the Committee stage there were two views put forward. We all agree that some very recent evidence, in the shape of surveys made by the Home Office, showed that there were two cases in which making suspended sentences mandatory had been failures. They were, first, where the person concerned had already received a custodial sentence and, secondly, where the persons concerned had already three or more previous convictions. This shows the value of research work, which naturally takes time. I made no complaint about the fact that the product of this research work was available in the other place only on the Report stage of the Bill. But there was no evidence, we submitted, that mandatory suspended sentences had otherwise gone wrong, except that there were cases in which sentences had been suspended when they should not have been.

It took a little time before the Court of Appeal, in O'Keefe's case, got round to this. Both the High Court (it is fashionable always to blame the magistrates' court) and the magistrates' courts were found not to be applying suspended sentences as intended, and the Court of Appeal had to tell them, "You should never consider a suspended sentence (it is not a soft option) until you have decided that the case is one which could not be dealt with either by a fine or probation order, and it is only when you are satisfied that the case can only be properly dealt with by a prison sentence that you should then for the first time ask yourself whether this sentence should be immediate or suspended." But I believe that this lesson has now been learned, and those difficulties have been corrected.

At the Committee stage of the Bill there was a conflict of opinion between two groups, one of whom thought that there was no real evidence, apart from the two cases have mentioned, to justify abandoning mandatory suspended sentences when they had run for such a comparatively short time. The Government view, on the other hand, was that they had been a failure so far as they were mandatory and that the mandatory side should be removed. And on a test being taken of the strength of these two opinions there were 50 supporters of the first view and 77 of the second.

In these circumstances, of course, we have not put down the same Amendment again. What we have thought would be right would be to put down a compromise, having regard to the fairly close division of opinion as to whether to-day we should or should not abandon mandatory suspended sentences altogether. The effect of accepting this Amendment and No. 27 would be that in the two cases in which it has been shown that mandatory suspended sentences are not a success—that is to say, where there had been previous custodial sentence or three or more convictions—we should get rid of this provision making suspension mandatory. Secondly, it would mean that in the Bill the Home Secretary was given power by Statutory Instrument to abolish the mandatory side of suspended sentences altogether, but not before the end of 1974.

There are two thoughts behind this. This takes into account that the decision as to whether or not we should do it at all was fairly evenly balanced on Committee. It takes into account the argument, which might be advanced if someone said, "Let us leave it over for some time till the Government have more information", that we do not get a Criminal Justice Bill every year and this might hold up the change for years; it gives the Home Secretary power by Statutory Instrument to do it at any time after 1974. This will have two advantages. First, more time will have elapsed, so that more research work can be done, and instead of, as many of us have said for some time, conducting our changes in criminal law on "hunch" we ought really to do it on evidence and on the result of such research work as has been done. Secondly, one hopes that by the end of 1974 there will be additional prison places in which people can be further accommodated. Indeed, the two concluding questions that I should respectfully like to ask the Minister are: if the most pessimistic view of the Home Office turns out to be right, and this means a fairly rapid increase of 3,500 in the prison population, does this mean that we shall have another 3,500 sleeping three to a cell, or will they be able to go into single cells? And, secondly, how many additional prison places do the Government estimate will be available by the end of 1974? I hope that, in view of the valid division of opinion on the Committee stage of the Bill, and since this Amendment is intended as a real compromise, it may commend itself to your Lordships. I beg to move.

3.48 p.m.


My Lords, I would say just one word in support of my noble and learned friend, and that is to draw the attention of the House to the conclusion which was reached in the research memorandum produced by the Home Office. At the top of page 16 this paper arrived at the conclusion that Assuming that prison sentences for fresh offences would have been served in any case, the prison population is no bigger now"— this was May, 1972— "than it would have been if suspended sentences had not been introduced. And the most up-to-date estimates suggest that the new provisions"— which include the mandatory element— have probably resulted in a saving of between 850 and 1,900 in the prison population. These are, of course, contingent conclusions.

I think it is common ground that this is an extremely complex matter and it has been necessary to base the conclusion upon a number of hypotheses. But this is, I think, the best provisional conclusion we can get: that the suspended sentence provisions, including the mandatory element have in fact resulted not in an increase but in a saving in prison population. Therefore, I support my noble and learned friend in his submission that to abolish the mandatory element in this would be a dangerous step at the moment and likely to increase the prison population.


My Lords, one brief word of support. The figures and arguments have been fully gone into, and I shall not go into them again except to say that they have never in fact been answered. The right honourable Edmund Dell in another place, and figures quoted by various speakers here, made it perfectly clear—and this was never refuted—that the mandatory element did keep people out of prison. The Home Office statement has made it perfectly clear that it expects that the abolition of mandatory suspension to mean that more people will go to prison. The argument has been confused from the first by the fact that the suspended sentence itself is suspect and has been wrongly used, though we think that this may be put right. From my point of view it is an unsatisfactory thing anyway, because I believe that the only good reason for sending people to prison is that they are not safe out. If they are not safe out, of course there is no case for suspending their sentence. But this is an individual view which is not shared by many benches, though no doubt they will come round in due course to this point of view.

This Bill, which is based on two major and very important Reports and I think, in general, to the satisfaction of all of us—is a very good Bill; but it has one terrible blemish, and that is the point we are just discussing now. It seems to me to throw away the small "goods" that we are trying to do by inventing alternatives to prison, and slowly working them up as a means of keeping people out of prison. At the same time, and on evidence which has so far proved quite undemonstrable, it condemns the mandatory system, which many of us think is working well. This is an act of extreme folly, and is a very serious blemish in what is otherwise a Bill that we all welcome. I very much hope that this extremely limited compromise, which takes into consideration the latest research figures, which are very specific, and also gives the Government the power to do in three years time what they want to do now, is one that should be accepted. Otherwise, I think that the virtues of the Bill are going to be very much marred.

3.53 p.m.


My Lords, I am very much in favour of compromise, and some of the Amendments that I have put down to this Bill represent just that. Whether they will find favour with noble Lords opposite we shall wait with interest to see. I appreciate the changes that the noble and learned Lord, Lord Gardiner, and his colleagues have made in their approach to this Bill, and I have not overlooked the degree to which they have attempted to reach a compromise on this point. I should also say that, so far as I am concerned, this is not simply a re-statement of the speech that I made on the last occasion; nor indeed is it a re-statement of speeches made in another place because when the Government say, "We will look at these matters again", we do. Indeed, we have had the added advantage that my right honourable friend the present Home Secretary has had a chance to look at it himself. He has been in correspondence with the right honourable gentleman the Member for Birkenhead on this very matter, but I am afraid that I cannot advise the House that even this compromise is one that should be accepted. I will try to explain why.

May I preface my explanation by saying that although this is not the occasion for a major debate on penal policy, I am grateful to the noble and learned Lord, Lord Gardiner, for putting this matter in its context and speaking about the penal system, the overcrowding, and to other noble Lords who have mentioned the other parts of this Bill to which this is plainly related. We must see it in its context, and I do not seek to avoid that at all. Certainly from my point of view, overcrowding in prisons is not a thing that I wish to encourage or to see proliferated in any way. If I were to deal with the matter solely on the basis of trying to avoid overcrowding in prisons, then possibly one would welcome almost any measure which will keep people out of prison. Unfortunately, you cannot just look at it that way. We do not have prisons just because we like shutting people up, or for the sake of producing statistics.

I think that the noble Lord, Lord Donaldson of Kingsbridge, is probably right in saying that people should go to prison because they are not safe out of it. If they are not safe out of it, the fact of the matter remains that they will have to go into prison. This is the other side of the picture, and it is one which I do not believe that any responsible Government can possibly seek to burke. It is very difficult to go into the minds of courts, whether they be magistrates' courts, quarter sessions (now the Crown courts), or indeed the assizes in the old days, to see why they passed the sentences that they did. But the fact remains that if one looks with, I hope, not a partial but nevertheless a discerning eye at the statistics which have appeared since the passing of the Criminal Justice Act, 1967, which introduced the suspended sentence and the mandatory suspension in certain cases, there has been a distinct fall in the proportion of probation orders made and the occasions on which fines were imposed, and these appear to have been replaced by sentences of imprisonment suspended. In some cases, of course, those sentences had to be suspended because they came into the category which, under that Act, required the courts so to act; in other cases it may be that they did so in their discretion.

What also appears to have happened to some extent is that, in order to avoid the mandatory suspension of a sentence which the court thought ought to be imposed upon the person before them, if they were a magistrates' court they com- mitted for sentence to the higher court, who were enabled to impose a sentence of more than six months and thereby avoid the mandatory suspension; in other cases, for the same reason, they simply imposed a sentence longer than six months. If that was happening, that must be wrong, because in the last sort of category that I was talking about it means that a court is saying, "We must send this man to prison. We must send him now. We are being artificially limited in our powers by the Statute of 1967. In order to get him into prison, we have got to sentence him to a longer period of imprisonment than he really deserves". That is not a healthy situation, and it redounds to the credit of nobody; yet I am afraid that it has probably been happening, and simply because of this mandatory requirement to suspend sentences. That of course is one matter that emerges from talks about the prison population, because for every extra period of time a person has to serve in prison, a place is being taken up by him which need not be taken up, and indeed, on this hypothesis, never ought to have been taken up by him.

While it is quite right to say that the statistics were published in the course of last year, I think in fact that the noble and learned Lord. Lord Gardiner, is not quite right in what he says. In a rough form they were available at the Committee stage in another place, though the document that we now all have was not printed until the Report stage. At any rate, they were available a little earlier. One may draw what conclusions one likes from them. I looked at them, and I of course noted the two categories that have been drawn to the attention of the House in this particular Amendment, and pinpointed by the noble and learned Lord, Lord Gardiner. Whether of course, when we are dealing with people with previous custodial sentences and people with three or more previous convictions on indictment, they are different people is open for question. I would think they are probably not the same in every case, and therefore there is an element of double counting in the matter. The converse argument concerns the case of the people who, if this Amendment were passed, would still have to have their prison sentences suspended, they being those with less than that number of previous offences. The statistics show that in the case of even those few people about one in three have committed a further crime.

What we have to ask is this. Is it right to say to the courts throughout the land, "First of all, you must consider the judgment in O'Keefe. You must not give a suspended sentence and the man must go to prison. Nothing else will do. Probation will not do. Fines will not do. It has to be a prison sentence. Secondly, you are required to suspend a sentence, notwithstanding a one-in-three risk that the man will offend again. It is no use your trying to exercise your judgment on this. We are not going to allow you to use any of your experience or judicial training. We are not going to allow you to use any of the other factors which may be available to you. You simply are not to send that man or woman to prison." That is the converse of the argument on the statistics; and what we have concluded is that this fetter on the power of the courts is wrong. As a principle, it is always fairly dubious to fetter the power of the courts on sentencing, and in this case we have statistics which show the results of it.


My Lords, would not the noble Viscount agree that to be right twice out of three times is an extremely high and satisfactory performance, in very difficult judgments of this sort? I think the noble Viscount gave the impression that 66⅔ per cent. is a low success rate. It seems to me extremely high.


As usual, my Lords, when you start arguing about statistics you get involved in figures which get further and further away from reality. The whole basis of this argument has been that when you had mandatory suspension there was a success rate of 50-odd per cent.—this is putting it the other way around—and when there was discretion and the courts did not have to suspend the success rate was 30-odd per cent. These arguments become very difficult to envisage in terms of large numbers. I agree with the noble Lord, it may be that this is quite a good success rate. But are we to say to the courts that in not one single case, how- ever bad the prognostication, are they ever to send a man to immediate imprisonment, simply because he falls into the sort of category which is covered an the 1967 Act or in this Amendment? I am afraid I just do not think that that is the way to set the courts upon their task of putting people in prison when, and only when, they must be put there for the security of the public. This is the fundamental point which underlies the Government's view on this Amendment.

We then come to the question of figures. The noble and learned Lord has reverted yet again to the figure of 3,500. What I must remind the House is that when a very senior and experienced member of the Civil Service, from my Department, was in front of a Select Committee of another place, he was asked this question and he said that the effect of this Bill could be an increase in the prison population of anything between nothing and 3,500. He was quite unable, and so am I, to say where in between those two figures we shall come out, for the kind of reasons that will already be apparent to those who have listened to the first part of my speech. One just cannot predict. But I should have thought it was unlikely that the ceiling would be reached, just as I should think it very unlikely that the increase would be nil. I should have thought the figure would be somwhere in between.

The answer to the noble and learned Lord about the extra prison places by 1974 is that we hope we shall have completed—and I think this is reasonably certain—2,500 new places by that time. This is a result of a very large building programme which has been begun almost entirely under this Government. I think that in 1969 only 80 new places were started. The credit for that increase must, it is perfectly true, be given to the previous Government. Last year, 2,400 new places were started and in the present financial year 3,000 new places have started, and that is the rate which we shall go on with. So, at any rate on this side, our record is extremely good. We have the planning clearances to go ahead at that rate and we have the plans ready. So it is not a question of dragging our feet on the provision of new places or on the refurbishing of existing prisons on a temporary basis.

Nor need the House think that all prisoners are sleeping three in a cell designed for one, which I think, by a slip of the tongue, the noble and learned Lord indicated. Some of them, it is true, are, but far more are sleeping two to that sort of cell. I do not say that that is satisfactory, but it is right that it should go on the record. We are therefore in a position where it looks as though the prisons will be able to cope with the sort of range of population which will result from this Bill, because one must remember that there are other areas in the Bill where there is to be a reduction in the prison population. I have attempted to put the other side of these arguments, although I do not suppose either side is conclusive. I have attempted to put the counter-arguments to those used by the noble and learned Lord and by others who have spoken. I am afraid that the Government are not converted to this compromise, even looking at the Amendment with all the sympathy we can. Therefore, I afraid that I must advise the House not to accept this Amendment.

4.6 p.m.


My Lords, this is very disappointing. With regard to the Home Office figure, I cannot agree that this was something unexpectedly dug out by an ignorant official. Mr. Cox is the Director General of the Prison Service and he was giving evidence to the Select Committee on Public Expenditure. The Home Office have always been extremely hesitant about mentioning any figure at all, but when asked about the calculation made of the increase in the prison population which was likely to follow the end of the mandatory suspended sentence, he said: We can calculate the top and bottom figures. The bottom figure is obviously nil.

The top figure we believe to be somewhere around 3,500, but it might be anywhere between those two extremes."

Mr. Roper said: I was not sure whether 3,500 was receptions or population", to which Mr. Cox replied: 3,500 is the population figure

It is an appalling thought that in a Bill at this time, with all the difficulties of staffing and so on, we should quite deliberately be doing something which might lead to an increase of 3,500, particularly when there is no evidence on which to go. The evidence in the cases which I mentioned, about three or more previous convictions or a custodial sentence, showed that in the majority of cases it had been a mistake to suspend the sentence. But for the rest; which we are now dealing with, the contrary was shown: that two out of three times this method of treatment was a success. The noble Viscount seems to think that that is a very poor show, but I should have thought that in the criminal field, if a man goes straight on a particular method of treatment twice out of three times it is a very considerable advantage.

I do not want to pursue the matter indefinitely. I do not anticipate that we shall have many Divisions on the Amendments which we have put down, but as this Amendment is a perfectly fair compromise, and in view of the nature of the Division at Committee stage which showed those who were altogether opposed to the provision to be made, I would ask the House to come to a conclusion upon this Amendment.

4.10 p.m.

On Question, Whether the said Amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 29; Not-Contents, 80.

Ardwick, L. Hale, L. St. Davids, V.
Buckinghamshire, E. Henderson, L. Shackleton, L.
Champion, L. Hoy, L. Shinwell, L.
Citrine, L. Jacques, L. [Teller.] Slater, L.
Davies of Leek, L. Listowel, E. Stow Hill, L.
Donaldson of Kingsbridge, L. Llewelyn-Davies of Hastoe, B. Summerskill, B.
Gaitskell, B. Maelor, L. Wells-Pestell, L.
Gardiner, L. Moyle, L. Wootton of Abinger, B.
Garnsworthy, L. [Teller.] Platt, L. Wynne-Jones, L.
Greenwood of Rossendale, L. Sainsbury, L.
Aberdare, L. Elgin and Kincardine, E. Lyell, L.
Albemarle, E. Elles, B. Mancroft, L.
Alport, L. Elliot of Harwood, B. Mansfield, E.
Auckland, L. Emmet of Amberley, B. Mar, E.
Balerno, L. Ferrers, E. Milverton, L.
Balfour, E. Garner, L. Monck, V.
Balfour of Inchrye, L. Gisborough, L. Morrison, L.
Berkeley, B. Goschen, V. Mowbray and Stourton, L.[Teller.]
Bolton, L. Gowrie, E.
Boyd of Merton, V. Grenfell, L. Napier and Ettrick, L.
Brecon, L. Gridley, L. Nugent of Guildford, L.
Brentford, V. Grimston of Westbury, L. Rankeillour, L.
Brooke of Cumnor, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Rathcavan, L.
Brooke of Ystradfellte, B. Reigate, L.
Brougham and Vaux, L. Hewlett, L. Rowallan, L.
Chorley, L. Hylton-Foster, B. St. Just, L.
Colville of Culross, V. Ironside, L. Savile, L.
Courtown, E. Jellicoe, E. (L. Privy Seal) Somers, L.
Craigavon, V. Jessel, L. Strang, L.
Cranbrook, E. Killearn, L. Strathclyde, L.
Crathorne, L. Kilmarnock, L. Swansea, L.
Croft, L. Latymer, L. Swaythling, L.
de Clifford, L. Lauderdale, E. Todd, L.
Denham, L. [Teller] Leicester, E. Tweedsmuir, L.
Drumalbyn, L. Lothian, M. Widgery, L.
Ebbisham, L. Loudoun, C. Wolverton, L.
Eccles, V. Lucas of Chilworth, L. Young, B.
Effingham, E.

On Question, Amendment agreed to.

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

4.18 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 8: Page 11, line 32, after ("1967") insert ("or under section 19 of the Treatment of Offenders Act (Northern Ireland) 1968").

The noble Viscount said: My Lords, notwithstanding the rather welcome (from my point of view) increase in the disparity between those who agree with me and those who agree with the noble and learned Lord opposite, as I am talking about Clause 13, and although I am just moving a formal Amendment, may I remind the House of the enormous importance that the Government place on this clause. I hope everybody appreciates that, when it comes to trying to keep people out of prison, I will not say that this is the pivot but it is a very important part of the machinery in this Bill; and the absolutely solid injunction to the courts that is contained in Clause 13 is a very important provision indeed. We have discovered that there is a technical defect in the clause, in that it does not cover the case of people who have been sentenced in Northern Ireland. It is simply in order to cope with that defect that I have put down this Amendment. I beg to move.

Clause 14 [Community service orders in respect of convicted persons]:

LORD DONALDSON OF KINGS-BRIDGE moved Amendment No. 9: Page 12, line 9, leave out ("less than forty nor more than two hundred and forty") and insert ("more than one hundred and twenty.").

The noble Lord said: My Lords, I shall not make very heavy weather of this Amendment, but we were encouraged to put it down again because of some kind words which the noble Viscount, perhaps absentmindedly, let slip in our discussion. He said, among other things: There is no particular reason why we consider it"— that is, the figure of 120 hours, which was the figure recommended in the Report of the Committee headed by the noble Baroness, Lady Wootton of Abinger— to be inadequate. There is no particular reason why we should pick on 240 hours as being adequate…".—[OFFICIAL REPORT, 17/7/72, col. 643.]

It is rather on those grounds that I wish to challenge the Government's decision to double the recommendation of the Wootton Committee and to insert a minimum. In our previous discussion, I admitted that this was a question of judgment. It clearly is so. There is a very important factor behind this and it applies more to the maximum than to the minimum. The community service order can turn out either way: it can turn out as a punitive affair or as a rehabilitative affair. It must to some extent be both; but the balance is very important. Taking a Saturday as a five-hour working period—I do not think that there will be many eight-hour Saturdays—120 hours is equal to 24 Saturdays. That is quite a long time. If you are offering a young "tear-away" an alternative of 240 hours (which is 48 Saturdays) this will extend over nine months; and I think it likely either that he will refuse it or that he will break down under it. If that is the kind of sentence to be imposed, it will fail through breakdown.

As the noble Viscount has admitted, in a sense this is a pure guess. It is a guess on anybody's part. Would it not be more prudent to accept the guess of the very balanced and sane Committee who invented the idea rather than to double it? Is it not evident from the point of view of outsiders that if you double it then you are stressing the punitive and taking stress off the rehabilitative side? I believe this to be much more important than the words make it sound. If in these circumstances you sentence a young man to something that he can bear, then I think you may change him in a short time. He will be influenced by the various people who are running the thing. I think it may be a valuable experience and do something for him. If you sentence him to something that he cannot bear at all—even though he thinks that he may be able to do so at the outset—I think you will regret it. I would ask the noble Viscount to think very carefully about this matter. He is taking no great risk: it is very easy later on to alter the minimum, to increase it; but I believe that it would be a much wiser way to start.

May I say a word about the minimum? As I made clear in our previous discussions, I do not mind limiting the power of magistrates. I think that in many cases it requires further limitation. So far as the clause that we have recently discussed is concerned, I think the mandatory limitation is a thoroughly healthy thing and I am sorry that we are going to lose it. But here you are introducing, so far as I can see, an entirely unnecessary limitation to the magistrates' powers. You are saying: "We cannot let you impose a punishment of this kind without seeing that at least you make it fairly severe; for you might make it foolishly lenient." If I were a magistrate, which I am not, I should resent that. I see no reason to stipulate a minimum. I think that the chances are that the magistrates would be very unlikely to award a sentence of two Saturdays or of three Saturdays. I should have thought that a month of Saturdays —I mean four Saturdays—would be the absolute minimum. I see no advantage in stipulating a minimum.

So it seems to me that it would be much wiser of the Government to accept the original figure until there is some reason to alter it. The only reason suggested is, in the noble Viscount's words, "to satisfy the public." But if you are going to satisfy the public, you are going to tend to use the maximum the whole time; and this, again, will detract from the value of the C.S.O. We shall not divide on this, but I believe the Government would be wise to put their mind to it. It would cost them nothing. They are taking no risk of any kind and they are making a gesture to what I may call the leniency side of the penal field, a side which gets very little gestures of that kind at the moment.

4.27 p.m.


My Lords, there are, it is perfectly true, two sides in the penal world: there is the leniency side and there is the, I suppose, severe, harsh and perhaps slightly repressive side. It must surely be the job of Government to try to hold a proper balance between the two. Very obviously, too, with the greatest good faith one is pressed from both sides. What I should like to do about this is to seek to put it into context. First, a word on the origin of this matter. The Report of the Committee chaired by the noble Baroness, Lady Wootton, dealt with this matter in paragraph 58. It is with no disrespect to the noble Baroness and to her Committee that I would suggest to the House that I think her recommendation, too, was probably a guess; the reason underlying it was certainly not spelt out at great length in that paragraph. I do not resile from my confession before that we, too, have altered this by virtue of a guess.

Let us just remember what is the purpose of this exercise. We are seeking to provide an alternative penalty for people who at the present time, for lack of anything else to do with them, go to prison. We do not want them to go to prison; we do not think that prison is the right place for them. It does not do them any good, or the prisons any good, or anybody any good; whereas the C.S.O. ought to do all three of those categories of people good—including those who, we hope, will benefit from the community service done by those who are thus free from the threat of prison.

It is no use supposing that one can introduce a radical and welcome alternative to what is, at the present moment, imprisonment, without taking into account that a very large number of people in the population do not understand as fully as they might everything that those inclined to leniency in the penal world hold most dear. I do not think that it would always be considered to be adequate—and I am dealing at the present moment with the "minimum" point—for a court to be given in this legislation a power (specifically as an alternative to sending somebody to prison) which involved no minimum at all and which could be something in the region of an attendance on one or two Saturday afternoons. That, I believe, would be considered by everybody concerned to be, as I have said before, a "soft option" and not one which sought to get to the root of the problem—which is to stop sending unsuitable people to prison. If a young man is capable of being dealt with by going on community service, what good is there in his doing it on just two Saturday afternoons? If that is all that this means, then we are not dealing with people who would otherwise have been sent to prison. I must say to the noble Lord, Lord Donaldson, that I think that this argument is irrefutable. If this is the penalty—one should not call it a penalty, it is a sentence—we are not taking people out of the prison system at all. We are merely providing yet another variety of probation order or something of that sort and that is not the purpose of this provision at all.


My Lords, I must say one more word. Surely this assumes that only those people are sent to prison who ought to be sent to prison. That, in my view, is not the case at all.


My Lords, that was one of the noble Lord's more obscure remarks.


My Lords, if it is entirely inadequate to punish someone by taking up two Saturdays of his free time, this Bill suggests that sending him to prison would be more adequate. In my opinion probably a third of the people who are in prison to-day ought not to be there and would be much better off by being made to give up two Saturdays.


My Lords, I am not sure. I do not know that courts at the moment send people to prison for whom the alternative would be two Saturdays deprivation of leisure. I would rather have eight Saturdays, which is the minimum provision in this Bill, and that is what we concluded, after exercising such judgment as we were able to exercise. I must ask the House to endorse that view, and I am glad that the noble Lord, Lord Donaldson of Kingsbridge, is not going to press for a vote on the Amendment.

As for the maximum, it is true that 240 hours could involve a long period of work of this sort. I take the noble Lord's point; and I think that the courts will understand that to overdo this sentence so that, as it were, it breaks the camel's back, would be an error. But, as is always the case in criminal legislation, we are providing a maximum. Some noble Lords, certainly my noble friend Lord Swansea, would complain that the courts, when presented with maxima, do not use them. We suggest that this sentence is provided as a maximum for the courts in the same way as most other penalties in our criminal legislation are provided as maxima. I doubt whether there will be many cases where the courts will go as far as this; nevertheless, there may be an occasion when the court will say, "Here is a defendant for whom this would be an adequate sentence. It is a case where the concept of deprivation I of leisure is the right way to deal with it, but it is a case where he had better put in a substantial amount of time and energy." There are, of course, as the noble Lord knows, provisions for reviewing the sentence as it is going on. The noble Lord will remember the provisions in the Bill. I must suggest to the House that if this matter is to be taken seriously —and I know every person who has taken part in these provisions wishes it to be taken seriously—it must be presented as a realistic alternative to imprisonment. That is the reason which underlines our choice of the top and bottom figure.

Finally, there is this point. If, alas!, the noble Lord, Lord Donaldson of Kingsbridge, is right, and large numbers of unsuccessful maxima are applied and it appears that this is bringing the whole scheme into disrepute, there is power in the Bill to reduce the maximum. Whether one would be so happily placed by having power in the Bill to increase the maximum from a lower initial stage is another matter. I think that Parliamentary approval is comparatively easily gained for reducing maximum sentences, but one might run into a rather more difficult situation if one attempted to increase them. It might be that people would say, "This is a substantive matter which needs legislation and discussion; and anyway, you are only guessing, and we want now to assess the statistics to see whether you have got it right." A Statutory Instrument is, of course, not susceptible to amendment. So I draw attention to the power to reduce the maximum and I draw attention to the difficulty of proceeding in the opposite direction as is suggested by the noble Lord, Lord Donaldson of Kingsbridge. I hope that now we may leave this matter as it is on the argument which I have sought to present, very much in the hope that it will provide a successful and an acceptable alternative to imprisonment.


My Lords, I am sorry that we have not succeeded in persuading the Government. I would make only one comment on what was said by the noble Viscount, Lord Colville of Culross: the procedure which the Government are going to adopt is to wait until the thing breaks down and then scrap it. I suggest that I t would be better to go the other way, and if the thing works so well that it is felt that this method might be extended to more serious offences than it has been, that would be the moment to increase the number of hours. I will say no more after the discussion we have had, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 19 [Probation orders requiring attendance at day training centre]:


My Lords, this mysterious Amendment is a drafting one. In fact it is only part of the story, because the second part of Amendment No. 39 restores precisely the same subject matter but puts it where we think it would be better put, in Schedule 5. I beg to move Amendment No. 10.

Amendment moved— Page 18, line 10, leave out subsection (5)—(Viscount Colville of Culross.)

Clause 21 [Mental treatment for offenders subject to probation order]:


Leave out Clause 21.

The noble Viscount said: My Lords, my noble friend Lord Mansfield said he read this Amendment with tears in his eyes, because he thought that all his hard-won victory on Committee stage in getting a new clause inserted had gone completely for nothing. But I can assure the House that if one reads this Amendment with Amendments Nos. 39A and 41—and incidentally Amendment No. 38 —it will be discovered that we are doing the whole thing by a different method. I did warn my noble friend that we would have to do so because the drafting was wrong. But the substance of what he achieved on Committee is all there. We have picked up all the consequentials and the Amendment covers exactly the same things. I beg to move Amendment No. 11.

4.38 p.m.

LORD STOW HILL moved Amendment No. 12 After Clause 22 insert the following new clause

Suspended Execution Orders

".—(1) Without prejudice to the power of any court to suspend the execution of any sentence upon service of a notice of appeal, any court which has passed a custodial sentence may at or after the passing of sentence make an order (in this section referred to as a "suspended execution order") suspending the execution of the sentence for a period or for successive periods not exceeding in all three months and any such court may at any time vary or terminate a suspended execution order.

(2) In any calculation for any purpose relating to the length of any sentence no account shall be taken of any period during which a suspended execution order is effective."

The noble and learned Lord said: My Lords, I beg to move this Amendment which your Lordships will notice follows very closely, though not entirely, the Amendment put down and discussed on Committee stage. The House will remember the very moving speech which was addressed to your Lordships by my noble friend Lady Birk. Unhappily, the noble Baroness is a little indisposed but she will be back with us soon. I have to say on her behalf that she is extremely sorry that she is not able to be present to-day to return to the charge.

I will not rehearse all the arguments addressed to the House by the noble Baroness during the Committee stage nor those arguments supplementing her arguments. Shortly, the point of this proposal is as follows: it would empower a court to suspend a custodial sentence, in a case where the court is convinced that the custodial sentence is necessary, for a period not exceeding three months. The object is to enable the person upon whom the custodial sentence is imposed to put his or her affairs in order before the sentence of imprisonment takes effect. I said that this Amendment follows almost, if not entirely, the version put down at the Committee stage. The difference is that the Committee stage version was defective in that it was worded to apply to punishment of any sort and was not limited to custodial sentences. The first change that has been made is that the punishment in question is limited to sentences of imprisonment.

The second change is a very small one. It was pointed out by the noble Viscount, Lord Colville of Culross, that there was a defect in the drafting, in that it was not made clear whether the successive periods could each be for three months or whether, in the aggregate, they must not exceed three months. We have sought to make clear that they cannot in the aggregate exceed three months. In its changed form the Amendment would empower a court, when it has passed a sentence of imprisonment upon an accused person, to direct that that person should not begin to serve the sentence of imprisonment for a period not in excess of three months from the imposition of the sentence.

The object, as I say—I hope I do not repeat myself unnecessarily—is that there are a great many persons who are convicted of offences and in whose case it would be an absolute blessing if, in order to keep their family affairs together, or their business together—or perhaps to make provision for sickness in the family or something of that sort—they could have a month, two months, or at a maximum three months, to put their affairs in order before they disappeared from the family circle to serve the sentence of imprisonment.

Your Lordships may wonder whether it is really helpful to introduce an Amendment that is practically identical in terms to one which was discussed on the Committee stage, but I and those associated with me in putting forward this Amendment do so for the following reasons. The noble Viscount, Lord Colville (and I think we all have sympathy for him, because of the enormous burden of work on his shoulders), in effect said: "You confront me almost at the last stage with a new proposal. I have not really had an opportunity of having consultation about it and giving it the full consideration that it requires. I can give you my off-hand reactions, but I should like to think about it further." Since the Committee stage, he has written a full letter to my noble friend Lady Birk. We have considered most carefully the arguments that the noble Viscount uses in that letter. May I say, in a word—and I hope he will not mind my saying this—that I do not find them very convincing.

The noble Viscount says towards the end of his letter, after rehearsing the various arguments, that my noble friend Lady Birk might think this the sort of point that might be raised in a Private Member's Bill. Perhaps I may read the relevant part of his letter on that point. He says: While recognising your desire to take the opportunity of the Bill to bring forward a proposal which you believe to be desirable, I do urge upon you the view that a good deal more preparing of the ground ought to be done first. I know that it is always said that legislative opportunities occur only rarely. Even if that is true of Government legislation—and I believe there may well be further opportunities before too long—this seems to me the kind of proposal which having been properly worked up could be launched in Private Member legislation.

May I say at once that if the noble Viscount is able to give me, and those associated with me, encouragement that the Government would facilitate and welcome a Private Member's Bill on this matter, I think we should probably feel that it was not desirable to trouble the House further with it. But simply to say, "You might like to bring in a Private Member's Bill", is very different from saying that "If you do, we will afford you time and see that it receives early consideration in this House and in another place."

I also, in passing, note the expression in that passage of the noble Viscount's letter relating to the possibility that indeed there may be other Government legislation within the foreseeable future (his expression was "before too long") in which a proposal of this sort might be embodied. If the noble Viscount is able to tell me that there is a probability that there will be further Government legislation, and that a matter of this sort, if thought appropriate—that is to say, if on its merits it seems desirable—could be included in that Government legislation, equally I should not myself think it necessary to trouble the House with the matter further at this stage. I do not invite the noble Viscount, unless he feels that he should, to intervene and give me an affirmative answer: and as he is still in his place, perhaps it would not be inappropriate if I made some observations on the arguments that he has used in his letter.

The noble Viscount starts by saying that he can envisage a few cases—he says, "I would say a very few cases", where it should be beneficial to the individual offender if a court, having passed a prison sentence, were able to postpone its coming into effect for a short time. So we are not dealing with a vast mass of defendants. It is not as if this is a tremendously complex revolutionary proposal, which must be examined fundamentally and passed through a long stage of consultation with many interested bodies before it can be accepted as suitable. This is a proposal limited in scope. As my noble friend Lady Birk explained, the sort of situation she had in mind was of a person, perhaps married, who possibly has built up over a period of years a business of his own which he runs with assistance, or even without assistance, and by which he supports his family, and who is faced with virtual financial ruin if at least he cannot do something to try to see that his business is kept in being while he is in prison for three, six, nine or twelve months, or some period of that sort. So it is a limited proposal. It is not only that sort of situation; as I have said, there may be cases in which there is a bedridden member of the family who is an invalid, or something of that sort, for whom provision ought to be made. He may wish to call in his relatives or friends to try to keep his family together.

I hope that I do not trespass on your Lordships' time if I again insist, as was insisted upon before, on the enormous importance, when a person goes to prison, of trying to keep together a family to which he can come out when he has served his sentence. If one of the purposes of our penal arrangements is to try to bring back into society persons who go to prison, and to restore them as useful members of society, then it is crucially important—and I have had some experience of this—to try to see that his family does not disintegrate; that he has a wife who will wait for him: that his children are not too violently disillusioned in him; that he can come back and carry on, so far as possible, where he left off when he was sent to prison. So, I repeat, it is a limited proposal.

I do not think it requires a great deal of imagination to picture the kind of case in which a court, in the exercise of its discretion, would be likely to make use of this power if it were incorporated in the Bill. We are not talking of the legendary business tycoon who is an undischarged bankrupt and has just been convicted of defrauding a group of shareholders of £2 million, and who spends his time in a large villa or travelling between the South of France and Switzerland, where he has a number of bank accounts. I should have thought that if a person of that sort said he would like three months before he went to prison, the noble Viscount might well be justified in saying that it a case of that sort one should proceed to go on to sentence, because such a person might use the time to decamp or to salt away the property that he had fraudulently obtained, or something of that sort. I should be very surprised if that type of man got the three months' respite. One must credit the courts with the exercise of a reasonable discretion in these matters. That is what I would say on the first part of the argument used by the noble Viscount in his letter.

He then says to my noble friend Lady Birk: Your whole proposal is defective. You give no sort of guidance in your draft as to the kind of situation in which this power might be used. As he has said that, may I draw his attention to the provision in his own Bill about deferment of sentence? It appears in Clause 22. The courts are there given a power to defer sentences, but if you ask what guidance the court is given in that clause, the noble Viscount's own clause, you will find that it is extremely little. It is contained in the words in Clause 22(1): …for the purpose of enabling the court to have regard, in determining his sentence, to his conduct after conviction (including, where appropriate, the making by him of reparation for his offence) or to any change in his circumstances.

My Lords, that is as wide and imprecise as it could conceivably be, but the noble Viscount obviously relies on the common sense of judges not to misuse a power of that sort. That is what I am asking him to do when I put forward this particular proposal. If it were necessary, one could put in some general phrase similar to the phrasing used here, such as "for the purpose of safeguarding his interests or the interests of his family", or something of that sort. It would be easy to do so. We were admonished by the noble and learned Lord the Lord Chancellor, very rightly I thought, in a number of contexts, among them that it is very dangerous to "fossilise", I believe the phrase was, principles in the terms of the Bill. You must leave the court some reasonable discretion, and I should have thought one was not really running very much risk if one said to the judges, "Use your common sense." Of course one would speak to them with greater respect, but that would be the substance of the matter and I am sure there would not be any difficulty at all in their isolating the kinds of cases in which a power of this sort could very usefully be used.

I hope I treat the letter fairly, but I think really and truly that is the substance of the argument which is contained in it. There are one or two arguments that I do not quite follow. One is that the effect of a power like that might be to tempt courts to impose prison senences, whereas they otherwise would not do so. I find that extremely difficult to follow. I do not see why they should be so unwise as to give in to a temptation of that sort because they have this added power. I pass that by. I will not deal with the remaining arguments because I really do not think they take the matter any further.

The noble Viscount says there should be more consultation. Well, nearly a month has gone by since Committee. Cannot one think out a small proposal of this kind in that time? It is not so difficult as all that, and I suspect that the Government are making rather heavy weather of this. However, as I said at the outset, if the noble Viscount can give me some encouragement to think that there will be an opportunity of fresh Government legislation reasonably soon to incorporate a proposal of this sort after the Government have had further time to consider it, I shall be quite content. If they can give me some encouragement with regard to a Private Member's Bill, equally I shall be content. But this must be solid encouragement—rather precise in terms, if I may say so.

I would simply add that the House will have noticed that we on this side of the House have reverted to the question of bail. What occurs to me to suggest to the noble Viscount, if your Lordships approve, would be this: if a fresh Government measure really is on the way, if it is recognised that there are other things to be tidied up so that one could deal not only with this particular proposal on suspended sentences but could perhaps include it with proposals with regard to bail which might be formulated after the Working Party has produced its report, that I should have thought would be convenient. It would make a worthwhile measure, and the noble Viscount might be able to say that he agrees. Those are the arguments I would deploy. If the noble Viscount feels that he cannot give us any encouragement and that he still wants to think about this further and to have more consultation, and if he uses the same sort of arguments as are in his letter, I am bound to say that I personally would think this is a matter on which we ought to ask the opinion of the House.

4.55 p.m.


My Lords, the noble and learned Lord, Lord Stow Hill, was for a substantial time a very distinguished member of the Government and he knows as well as I do that I am not likely to be able to give the sort of guarantee of legislation or of support to a Private Member's Bill that he has outlined as being the only one that would satisfy him. I am sorry. The noble and learned Lord knows the facts of life, and he knows that without a specific measure before a Government an advance commitment of that sort is never given. Therefore I am afraid that I cannot take that easy way out and I must face up to the noble Lord's other points.

I am sorry that the noble Lord found some obscurities in the letter. I did my best to set out the problems. May I start off with this? The noble Lord concedes, and so did the noble Baroness, Lady Birk—and I am sure we are all very sorry to hear that she is not well: I hope she will soon be back with us again—that there would not be very many cases in which a suspended execution order would be proper. The implications of what the noble Lord, Lord Stow Hill, then went on to say were these: because you do not use it very often, there is not much point in taking very much trouble about seeing whether it is a good weapon to put into the armoury of the courts at all; that is to say, it is going to be used so seldom that we do not really need to bother much about consultations or to take very seriously the process of deciding whether or not this is a good thing to have, because of course the courts are hardly ever going to use it.

My Lords, the Government do not approach the arming of courts with new powers to deal with offenders in that cavalier way, and I would suspect that most Members of your Lordships' House would consider it gravely reprehensible if we did. I do not know what the experience of other noble Lords may be, but it occurs to me that there are better and more auspicious times of the year to get good and full consultations with the judiciary, the police, the magistrates, the probation service and others who are skilled in these matters than the month of August and the first half of September. It is our common experience that people tend to be on holiday and the courts are not sitting; and if the noble and learned Lord twits me for not having carried out proper consultation, I am sorry; but it is a fact that people are not here at the moment—or were not here at the time and in the numbers that we should like. I am not going to commit this Government to half-baked consultation leading to precipitate legislation on a matter which really does run into some fairly substantial philosophical difficulties.

Having said that, I recognise and accept the humanitarian case that the noble Lord has put forward for this sort of thing. I am sure it is right that there are some people for whom this would be a correct measure. But just let us look at it for a moment: the time immediately after sentence of imprisonment is a time of very great strain for anybody. Let us face it: it must be. The temptation at that juncture to abscond must be, I should have thought, at its greatest and there is no parallel whatsoever with the situation of being on bail before you are sentenced, because if you are on bail at that earlier stage you have every incentive in the book to behave yourself and to turn up at the court on the day in the hope that you will be leniently treated after all. In this case there must be every danger that the person will react in exactly the contrary way. Therefore we have to consider very carefully the kind of case where one might be able to use this power, and I am afraid I do not think that the noble Lord's analogy with the gentleman flitting between the South of France and his banks in Geneva was entirely apt to deal with the full difficulty of this case.

I do not know whether one ought to deal with criteria in an Act of Parliament. I am rather inclined to think not, and that when it comes to the Amendment on legal aid I am going to tell the noble and learned Lord, Lord Gardiner, that I do not want the criteria in the Bill. What I believe is that criteria must be worked out for the benefit of the courts; and really and truly all those who have argued for this new clause have never really gone into the question, or told us upon what criteria the courts think that these powers should be exercised. We have heard all the sad cases where I accept it might be suitable; but where are the safeguards and what is the court to do about deciding in which case it would be safe to do it? Not the case where it would be humanitarian, but the case where it is safe to do it. On that we have had no guidance at all.

There is—and it may be the noble Lord has found my arguments obscure in the letter—a difficult philosophical point on this. The sentencing practice of the courts is being directed all the time, and in this Bill we are in the same process, towards the idea that you send people to prison only if they must be in there for the safety of the community. That is the very point made by the noble Lord, Lord Donaldson. This is the direction in which we are going all the time, and this Bill goes further and further along the path. We have the community service order, and we have the deferred sentence in this Bill. Of course there are many things that have happened before; we have had conditional discharge and probation orders, all sorts of things, to give encouragement not to send people to prison.

Now we are confronted with a very strange animal in the world of sentencing powers. We say, "Here is a man whom you have decided"—and bear in mind Clause 13, my Lords—" can only properly be dealt with by imprisonment. But we give you a new power. He is so bad that prison alone will do; the safety of the community demands it. But there is no reason why you should not let him out for three or four weeks or two or three months before he starts his term of imprisonment so that he can wind up his affairs." But without a certain amount of further and profound thought on the criteria which ought to actuate a court and guide it in this field, there could well be some substantial confusion and, I am afraid to say, some mistakes made on the part of the court. The whole of the doctrine that underlines this Amendment goes in completely the opposite direction of everything else we are telling them. If we are going to do this I should like to be able to guide the courts much more in the way that they should apply this.

If the House wants to vote on this Amendment I have to say that there are still defects. I know that the noble Lord has corrected them, but I must warn the House of the defects. There is no power in this clause to recall people if they misbehave themselves during the period when they have been let loose prior to their sentence. There is no power to vary the time or the circumstances when the order of suspension has been granted. These are matters which would be essential because, inevitably, with the best judgment in the world, magistrates are going to make mistakes. People will commit further offences and would have to be recalled in some circumstances. Yet the law as drafted provides no power at all. If the court says, "Three months" the convicted person can commit a burglary every day and there is nothing you can do about it, although I suppose he can be arrested for something else. This is a severe defect in the drafting of the clause.

Let me see whether I can round this off by the constructive side. It is true that I cannot offer the noble Lord the positive help of a firm offer of Government legislation or backing that he would like. What I should like to do is take the opportunity of getting some further thought given to this proposal by those who are so very capable of giving it. I should like the advisory committee to consider it. It is a great pity that this proposal was not put as one of the suggestions that the Committee chaired by the noble Baroness had before them. I believe that this is the way in which one properly considers these new ideas, and this is the way in which I should like to consider it. Then I believe we shall get the matter properly considered and worked out, and all the snags and advantages weighed up to see whether it is a good idea or not.


My Lords, the Council would be most glad to consider it if the noble Viscount likes to call the matter to their attention.


My Lords, I am grateful to the noble Baroness. There are other commitments, but it is one of the ways in which this could be done, and I think it is the proper way in which it should be done. That means to say that we must have a little lapse of time before anything is likely to come of it. The initial consultations that we have had have not been, by any means, all favourable, I am sorry to say. There have been some quite severe criticisms from judges and from the police on this matter.

I beg your pardon, my Lords, I have misled the House. There is a power to vary or terminate the order. I am sorry; what I meant to say was that there was nothing to guide the court about the occasions in which it should be used. We do not know whether it is because the person breaks the conditions, or whether it is because he has committed another offence. This will have to be cleared up in proper drafting. I withdraw what I said about there being no power to vary or terminate the order. We must have rather more in the way of spreading out the occasions on which it should be used.

To go back to the constructive side, one must remember that at the moment we are not in a limbo. If a person is sent to prison it has occurred to those who have to deal with prisoners, and deal with them in an enlightened way, that it causes chaos in their families. As some noble Lords will be aware, there is a number of fairly sophisticated agencies who look after these matters. There are volunteers—and I am glad that we are able to use volunteers—who exist just for the very purpose of taking the immediate action that the noble Lord wishes to be taken. It is never so good as action by the person who has been imprisoned. One might say in the case of a man with a business that it would have been better if he had not committed the crime at all in the first place. But if he has committed the crime and is sentenced to prison, there are people who will go and help the family, or his partners, to sort out his affairs. There is the Prison Aftercare Service which looks very carefully into the family conditions of the prisoner. This is one of the subjects that come into the ordinary course of preparing a social inquiry report for the courts before sentence is passed.

Therefore the information providing the basis on which to act is available for these services. I do not want to spell this out—I have made a very long speech on this Amendment—but if we are going to eliminate this fault, let us do it properly and recognise that there is no immediate rush about it on the basis that nothing now can be done or is done for people who are sent to prison. There are measures to help them which are in operation now. They give us time to give proper consideration to this new clause—the consideration it deserves.

5.8 p.m.


My Lords, I have some sympathy with the view that the noble Viscount has expressed about the need for further inquiry. If the matter is to be considered by the Advisory Committee, or other body, will comparative law be taken into account, as is the custom of the Law Commission? The reason I ask that is because I do not know whether the noble Viscount has seen an article in The New Law Journal under the heading "Suspended Execution of Sentence". On absconding, they say: Used cautiously and sensibly, there is no reason to suppose that absconding will be a problem. People so released will be those with family roots or businesses, precisely those who will take advantage of the time to put their affairs in order and then get their sentences over and done with. I should have thought the best evidence about this matter is what happens in other countries? Human nature is much the same.

We have all read of the appalling fraud in America in relation to the Howard Hughes "biography" where both the husband and wife were very properly sentenced. Some of us I expect were a little surprised that first of all Mrs. Irving was given some days to see to the affairs of the children, and so on. Then it was ordered that the husband's sentence should not start until the wife had finished serving her sentence. This was precisely for the purpose of preserving the family life. When one realises that this is part of the law of France; that it is part of the law of Sweden and is also part of the law of Denmark, there must be considerable practical experience as to the sort of cases in which this works properly, and to that extent absconding is a problem.


My Lords, with leave, may I just deal with that point? It is not only in Britain that people are on holiday in August; it also applies in America and in many countries on the Continent of Europe. Therefore we have not been able to have the extensive consultations that we should like for these purposes, either. The Advisory Council is well used to doing this and would, I am sure, be quite able to do so. What I do not know at the moment, and cannot advise the House on, is in what circumstances those foreign countries allow this kind of thing to happen. I may be right in saying that it applies in some cases to motoring offences for which people in this country would never be sent to prison at all. That is the kind of thing one would like to look at before necessarily concluding that foreign experience is a proper parallel.


My Lords, the noble Viscount began his speech by defending himself with rather more spirit than my noble and learned friend's mild chaffs justified. But he made up for it by showing a fair appreciation of the point towards the end of his remarks. As somebody who believes very much in this new clause, I believe it would provide a very important addition to the powers of our courts. I do not think it would be difficult to put upon it the necessary limitations. But I personally would be satisfied, and I hope my noble friend would be satisfied, if we had an undertaking that it will be put to some body, such as the Advisory Council, for deep and serious consideration.


My Lords, I entirely agree. May I in my own defence put it to the noble Viscount that I did not suggest, to use his words, cavalier treatment. All I said was that it is not as if this were a revolutionary proposal. It is not as if it would affect a large number of people. It would affect, I should have thought, a comparatively limited number—the type of person I sought to describe. All I was seeking to put to the noble Viscount was that, if this was a major change, I quite agree the fullest possible consultation must be had and experience very drastically sifted both in this country and other countries. All I was saying to him was that I did not think that consultation as full as that was necessary in the case of such a limited proposal as this.

When I suggested a Private Member's Bill what I had in mind was this. It is well known that Governments frequently make available to Private Members the services of Parliamentary Counsel and will enter into consultation with Private Members who wish to introduce a Bill, and indeed will make time available in another place. That is the kind of consideration I had in mind. In regard to Government legislation, I had in mind the noble Viscount's own phrase in the letter referred to. However, I will not take further time on that. What I am pleased to hear him say is that he recognises that the proposal is one which should be further investigated. I should be grateful if he would refer it to the Advisory Committee so that it can be carefully looked at and the experience of other countries analysed.

I feel myself next to certain—perhaps it is presumptuous to say that, but I feel very strongly indeed—that this is a power which could bring great good in a large number of cases. I do not want to speak of my own experience more than is absolutely necessary; but prisoner after prisoner with whom I have sat in a cell and discussed his kind of situation, and case after case in which I as a Member of another place have received letters from wives and their families anxious to be reunited and anxious to restart something like a normal, stable life, make me quite convinced that this is a proposal of great importance. The noble Viscount, I thought so rightly, said that a prison sentence has been imposed in a particular case and the person on whom it has been imposed is frequently in a state of the greatest shock. In most cases it is a dreadful calamity. It is at that stage when things can go to pieces. The prisoner loses his will, loses hope, and so on. Particularly in the limited class of case where a man has made some position for himself—he has built up a business, has his connections, has his neighbourhood to hope to go back to—I should have thought a power of this kind could be extremely beneficial. I hope the House does not think I am overpainting the position when I use phrases of that kind. I feel very strongly on this matter, but the noble Viscount has given me the indication which I hoped to obtain—I should have liked him to go further but I see the difficulties involved. Therefore, he having said., as understand him, that he would be disposed to refer this matter to the Advisory Committee, or at any rate take it further into consideration in whatever form he thinks is appropriate, perhaps without binding himself in advance, I am content speaking for myself, and in these circumstances I ask for the permission of the House to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.16 p.m.

LORD STOW HILL moved Amendment No. 13: After Clause 24, insert the following new clause:

Bail: principles to be followed

".—(1) The following provisions of this section shall have effect in place of the provisions of section 18 of the Criminal Justice Act 1967.

(2) For the purpose of this section a "bail question" means a question whether any person who has attained the age of seventeen (in this section referred to as such person') and who is the subject of proceedings in any court having criminal jurisdiction (in this section referred to as the court') shall or shall not be granted bail.

(3) A bail question may arise at any time between the time when such person first appears before the court and the time when he commences to serve any sentence involving the loss of his liberty, or, if he gives notice of appeal, the time when this appeal is determined or abandoned.

(4) A bail question shall be deemed to arise whenever such person is remanded or committed by the court or the proceedings of the court are adjourned.

(5) Whenever a bail question arises and such person is not represented by counsel or a solicitor, the court shall either grant him bail or, unless the court is satisfied that such person is aware that he is entitled to apply for bail, inform him that he is entitled to apply for bail and ask him whether he wishes to apply and the court may, if it considers it expedient so to do, make a legal aid order to enable an application for bail to be made.

(6) Whenever a bail question arises there shall be a presumption in favour of the grant of bail, in the case of any person who has been in custody for a period of not less than one week, and such presumption shall prevail unless good cause is shown to the contrary.

(7) For the purposes of this section 'the grant of bail' includes the grant thereof upon terms, that is to say, upon such conditions as appear to be reasonable or upon such person's own recognisance in a sum which, regard being had to his means, appears to be reasonable, or upon the provision of sufficient and satisfactory sureties in such sums as, regard being had to their means appear to be reasonable and 'the refusal of bail' includes the grant of bail upon terms which such person states to be unacceptable to him.

(8) Whenever a bail question arises and an application for bail is refused, the court shall, if such person is not represented by counsel or a solicitor or, if he is so represented and his counsel or solicitor so requests, give him a written notice stating the court's reason for refusing him bail and informing him of his right to apply for bail to such court or judge as may be appropriate.

(9) Where in any such case as is referred to in subsection (8) above the court is informed that such person intends to apply to another court or to a judge, as the case may be, for bail, the court may make a legal aid order to enable such application to be made and any court to which or judge to whom any application for bail is made may make a legal aid order to enable such application to be pursued.

(10) The provision of Part IV of the Criminal Justice Act 1967 shall apply to a legal aid order made for the purposes of this section, so however that any such legal aid order may be limited to the purpose for which it is made."

The noble and learned Lord said: My Lords, I have in a sense argued this Amendment when dealing with the previous one. Again this is a harking back to the discussion we had in Committee. Your Lordships may again think, the matter having been exhaustively dealt with there: is the House really served by reverting to it now? May I seek to answer in advance that question which may be put? First, we are all in agreement as to the fundamental importance of the question of bail—and I will not go over the arguments accepted on both sides of the Committee to establish that proposition. Secondly, I think we are all in agreement that it does not work altogether satisfactorily now. The figures then cited show that; and again I do not rehearse them. Thirdly, a major feature in the situation that emerged when we were discussing this matter in Committee was that the Working Party which was set up something like a year ago must have advanced fairly far in its labours in considering the question of bail. It was suggested then, and accepted by noble Lords on both sdes of the Committee, that it would be unwise to jump in ahead of the recommendations of the Working Party and to try to formulate a complete version of the law relating to bail without knowing what its recommendations would be. I entirely accept that, and it was because that argument was used that I asked leave in Committee to withdraw the Amendment.

All we have done in this case is to try to put some thoughts on paper. I will just explain—I hope I am not taking time unnecessarily in doing so. I think we were all impressed by the speech which the noble and learned Lord the Lord Chief Justice made when he pointed to the difficulties which have in fact emerged. He referred to the case of the lorry driver who was charged with rape and who was remanded in custody for a week. The Lord Chief Justice, having investigated the matter, felt that the justices had no alternative but to do that, because in a week a court just cannot know about the man. He may be perfectly reliable in a general sense, but within a week one often has no evidence either way. We have tried to meet that situation by providing in our subsection (6) that there is to be a presumption in favour of the grant of bail, in the case of any person who has been in custody for a period of not less than one week".

In other words, what we seek to provide—and, as I say, we simply put this on paper in order to indicate our thinking on this matter—is that there is to be a presumption in favour of bail, except that when there is before the court a person who has been in custody for a period not in excess of one week that presumption cannot be made because normally nothing will be known about him. Some days must go by while inquiries are made. At the end of that time, if the inquiries are made with reasonable expedition enough ought to be known about him to decide one way or the other whether he should have bail. What we say in this redraft of the Amendment is that as from that time there should be a presumption in favour of the grant of bail. That is the way in which we would seek to meet the point made by the noble and learned Lord the Lord Chief Justice.

This is home made. It is a proposal which we have put on paper. I dare say criticisms could be advanced about it, but it is for consideration. What I put to the House when I was moving the Amendment on the last occasion had a rather serious flaw—the noble and learned Lord the Lord Chancellor thought a fatal flaw and I would probably go nearly all the way with him in saying that. It was that the presumption was to operate in favour of the grant of bail unless the court was satisfied on reasonable evidence that one of the circumstances set out in the sub-paragraphs of the last draft operated. I think that was a serious flaw in the last draft. We have tried to cure it by substituting for the words contained in the last draft the words: Such presumption shall prevail unless good cause is shown to the contrary ". I should have thought that that would cover the case in which a responsible police officer was able to tell the magistrates' court on inquiry by them that he had reason to believe, for example, that the accused person might, if he were at liberty, tamper with Crown witnesses, or something of that sort.

But we do not put this Amendment on paper in order to invite the opinion of the House upon it. It is really in order to put before the House, and perhaps before the Working Party, some suggestion as to how the difficulties which emerged in the course of our last debate might be met. I hope the House may think that the appropriate course now is to give me leave to withdraw the Amendment, if those associated with me are in agreement with that course.


My Lords, I wanted to make one comment. I am glad of the line taken by the noble Lord but I have something constructive to say as well.


My Lords, may I therefore, technically, at the moment withdraw my application for leave to withdraw the Amendment?


My Lords, it might be better if the noble Lord were to propose his Amendment, otherwise there is nothing before the House.


Then, my Lords, to put myself technically in order may I move this Amendment? I am most anxious to hear the comments that the noble Viscount may make upon it and at a later stage I may revert to the proceeding which I unsuccessfully sought to initiate earlier in my speech. I beg to move.

5.23 p.m.


My Lords, I must confess that I have never in the course of this Bill sought to criticise—at least I think there was the point about the appeal to the High Court on evidence which arose on the last version of this Amendment—but my approach to Amendments from noble Lords opposite has not been to say that they were impossible from the drafting point of view. Therefore I have not gone through this line by line to see whether it is a satisfactory legislative measure. I think probably it is not altogether satisfactory but I do not want to go into the reasons why, because of the way in which the noble and learned Lord, Lord Stow Hill, has so helpfully moved it. If I may say so, I think it is the most constructive way in which this could have been done. I should have had to advise the House that it would be mad for us to go on legislative record at this juncture, when we are just getting this job done by the Working Party, which might contradict anything that they said by legislative provision and which might turn out to be wholly misguided.

My colleagues and I have been discussing it and what occurred to me was this—it may not sound very much but I think it may have some practical application. The noble and learned Lord, Lord Gardiner (I think it was), and others who discussed this matter before were not really concerned with the prisoner or the person on remand who applied for bail and did not get it; they were concerned with the chap who did not know that he could apply for bail; who was so unversed in the way of police stations, courts and prisons and who for some reason did not manage to read or to be told about this, or who was frightened when he went on a lightning appearance before the magistrates on remand. This was the person that some noble Lords opposite wanted to reach.

I have looked at the law in this connection and I do not think that it is really too bad. I do not think the machinery for getting bail is all that bad, or even the provisions for getting legal aid. There may be some gaps in it but it is not nearly so scanty as I suspected when I first looked. What I think are wrong are the cell cards and the information available to people in police stations. I have had a look at the cell cards that have been put round the prisons and also at the piece of paper which the Metropolitan Police use for this purpose. Of course different police forces have different pieces of paper but I have the one that the Metropolitan Police use for this purpose. I am hound to say that although their authors may love them dearly as pieces of English and they may think that they convey with great clarity all the information that is necessary, I am afraid I do not agree. I think they need radically re-drafting; I think they should be put into short, clear sentences, using simple words; they should be broken up. They should say things like, "If you want bail, the way you should go about it is this", instead of using very long sentences which consist almost entirely of words invented by bureaucrats.

I propose to have this redrafted in the case of the prison service, which comes under my direct control, and in the case of the police I propose to suggest that they should look at it very carefully (and we might even be able to give them a model) and that they should go a great deal further than they do at the moment, at any rate in the case of the Metropolitan Police, including telling people that they are entitled to open their mouths when they go back to the magistrates' court on remand. They are not bound to remain silent. They can say to the magistrate, "Please sir, will you give me bail?", and things of that sort. At the moment this is not made clear. While this Working Party is still sitting, and when it has reported, the law will be the same. What we want to do is to get at the people in the prisons and in the police stations. I believe this is a practical thing to do and I should like to get on with it.


My Lords, I apologise for the fact that I did not hear the opening observations made by my noble and learned friend Lord Stow Hill, but surely the noble Viscount will have in mind that there must be some people who have not been in a cell at all; who have been brought to the magistrates' court and then remanded. They then find themselves whacked off to prison pending trial, without having previously been in a cell at all. For instance, there may be persons who are taken up on a charge of driving with more than the permitted maximum of alcohol in their blood. They will not have seen any cell card. I should have thought that a number of the people whom I have seen in court would not have seen cell cards and would not yet have been in prison. Surely there are some people who have to be informed of their rights before they are ever detained at all?


My Lords, with the leave of the House I should like to speak again. I think practically everybody who gets into that situation has been to the police station, and that was why I suggested that we should deal with the form that the police have if there is any question of the man going before the court at all. There were two limbs to my argument: I referred to the cell cards—that is the prison cards—and there are also the pieces of paper "dished out" by the police, which I think are just as important.


My Lords, I have in mind that there are people at the police station who are not actually put into cells, and I think that was not entirely clear from the way in which the noble Viscount put it.


My Lords, I am grateful to the noble Viscount for what he has said and for what he has indicated as being his intention in regard to clarifying the guidance which is given to persons who might wish to apply for bail. I sought previously to pre-empt, as it were, your Lordships by seeking to withdraw the Amendment. Having regard to what has been said, I now ask leave to withdraw it so that we may see what the Working Party reports.

Amendment, by leave, withdrawn.

Clause 28 [Increase of maximum punishment for firearms offences]:

5.31 p.m.

LORD SWANSEA moved Amendment No. 14: Page 25, line 16, leave out ("£100") and insert ("£125").

The noble Lord said: My Lords, I will not detain your Lordships for long on this point and I suggest that it would be convenient to consider with it Amendments Nos. 15 and 16, because they all hang together. I hesitate, as a layman, to intrude on what is really a lawyer's Bill, but there are some points I wish to make. My remarks may have been more appropriately made in Committee on the Question, That the clause stand part of the Bill, but I was unfortunately unable to attend your Lordships' House on that day, so perhaps I should apologise for intervening at this stage.

Subsection (5)(a) reveals that the penalty of £20 which is laid down in the 1968 Act is to be increased to £50, an increase of two-and-a-half times. In paragraphs (b), (c) and (d), however, the penalties are to be only doubled. I do not know the reason for this discrepancy and it seems that they should all be increased in the same proportion, which is what my Amendments seek to do. I draw your Lordships' attention to the fact that in most cases the courts are not making anything like the fullest use of their existing powers under the 1968 Act. This point was mentioned on Second Reading by the noble and learned Lord, Lord Gardiner, who said that the average sentence for firearms offences was only about 4½ per cent. of the maximum permitted. Figures, and average figures in particular, are often misleading. Nevertheless, that figure quoted by the noble and learned Lord leads one to conclude that the courts are not taking full advantage of their powers to award exemplary punishment when it is called for. This therefore raises the question whether it is worth while raising the maximum penalties in this Bill when the existing maxima are hardly, if ever, used. It would be interesting to hear whether my noble friend has any details of the number of instances when maximum penalties have been imposed.

The statistics published by the Home Office in recent years on the use of firearms in crime do not give a sufficiently detailed breakdown of convictions and penalties as between different classes of weapons and different ranges of penalties. It would be of great interest and assistance to Parliament if, in future returns, fuller details were given. Successive Governments of both Parties have agreed that the right way to control firearms lies in more stringent enforcement and exemplary punishment rather than in more restrictive legislation, which only hampers the legitimate user still further while hardly affecting the ease with which the evildoer is able to lay his hands on firearms. Offences under the Firearms Act vary from the trivial to the grave, and within each category of offence there are of course gradations of seriousness according to the circumstances of each case. Nevertheless, the maximum penalty must be taken as a measure of the seriousness with which Parliament views such offences. Thus, what can be done to ensure that the courts carry out the intentions of Parliament? The noble and learned Lord the Lord Chancellor from time to time issues directives to magistrates when he deems it necessary. I hope that he will feel moved to exercise those powers in this direction.

Many people feel that the present wave of violent crime and of crime involving the use of firearms would not have occurred or would have been materially reduced if the courts had nipped this wave in the bud—I hope your Lordships will forgive this mixing of metaphors—and had used their powers to impose deterrent sentences at the first sign of an increase in violent crime. It is of little use putting teeth into the law if the courts leave those teeth on the bathroom shelf and only lick round the edges of the problem. I beg to move.


My Lords, I fear that my powers of metaphor are nowhere near as copious and diverse as those of my noble friend, so I come straight away to the specific points he raised. The first is the reason why these penalties are in the Bill. There is—and I believe it is for the good of accuracy in sentencing—a sort of tariff; in modern legislation there are various steps in regard to penalties which we try to stick to, and that is what has been done in this case. Perhaps the most important of all is the maximum fine that can be imposed by a magistrates' court, which is £400. It would be very unusual to have a maximum of £500 as my noble friend suggests. We are simply trying to keep in step with maximum penalties for other offences which we consider to be of similar gravity. There is nothing more sinister in it and one does not multiply by 2.5 in every case. I hope that my noble friend may think it helps the courts to be familiar with their powers if there is not too great a variety and spread in the maximum sentences that they are allowed to impose.

As for the maxima not being used, I am afraid I cannot give my noble friend any statistics about the number of times that they have been imposed. However, he is probably right to say that on the whole penalties have been quite low. One of the ways in which Parliament can encourage the courts to appreciate public concern about the gravity of a type of offence is by a measure such as this increasing the maximum penalty and by noble Lords making a lot of speeches about it in the process. One of the things Parliament cannot do is to suggest to my noble and learned friend the Lord Chancellor that he should direct magistrates on how to use the maximum powers given to them. What it can do is to suggest to him that he should take the opportunity, as he goes around the country and makes speeches, with his wisdom and experience to remind magistrates meeting together in county associations of the gravity with which Parliament views these firearms offences. It sometimes happens that they draw certain conclusions from what he says and this does not seem an unsuccessful method of getting Parliamentary opinion over to them. I shall make certain that my noble and learned friend is aware of what my noble friend Lord Swansea said about this subject.

Finally, as to the statistics, my Lords, there are some breakdowns for 1968 and 1969 which were put in a Home Office report called Firearms in Crime and the 1970 figures were in Social Trends. These were breakdowns of indictable offences known to the police in which firearms were involved, and it was a special return. Otherwise I agree with my noble friend Lord Swansea that the full recommendations of the Committee which was presided over by Judge Perks have not so far been implemented, but we are trying our best—it is a fairly complicated matter—to get the matter into the order which my noble friend suggests. Meanwhile, if my noble friend would like these two reports I will certainly see that he has them. If that is the substance of his case I hope he will accept my explanation and will not think that he ought to press these Amendments.


My Lords, I am grateful to my noble friend Lord Colville of Culross for his reply. Of course, as a layman intruding in a debate like this I knew that should put my foot in it somewhere. I was not aware of the £400 maximum fine which a magistrates' court may impose. I am also grateful to my noble friend for his concluding remarks about the returns on violent crime and crime involving the use of firearms. I am extremely glad to hear that the form of these statistics is being revised, and I shall look forward with great interest to seeing the next returns when they appear. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 17: Page 25, line 23, leave out subsection (7).

The noble Viscount said: My Lords, this is a drafting Amendment. The substance of subsection (7) is being moved into Clause 63 by Amendment No. 28.

LORD STOW HILL had given notice of an Amendment (No. 18): After Clause 30 insert the following new clause: . In sections 16(6), 22(4), 27(1), 45(5) and 73(3) of the Housing Act 1957 (which deals with penalties for offences in respect of unfit premises, premises subject to a demolition order, closing order and clearance order) there shall be substituted for the words 'twenty pounds' the words 'two hundred pounds' and for the words 'five pounds 'the words 'fifty pounds'.

The noble and learned Lord said: My Lords, Amendment No. 20, in the name of the noble Viscount Lord Colville of Culross, covers precisely the same point as this Amendment, and I am sure that in due course the noble Viscount will move it. Upon that assumption I do not move Amendment No. 18.

LORD STOW HILL moved Amendment No. 19: After Clause 30 insert the following new clause: . In section 15 subsection 1 of the Civic Amenities Act 1967 (which provides penalties for offences in relation to tree preservation orders) for the words 'two hundred and fifty pounds' there shall be substituted the words 'five hundred pounds'.

The noble and learned Lord said: My Lords, I formally move this Amendment simply to ask the noble Viscount if he will be so kind as to indicate what is his further thinking on this subject. As he will remember, a similar Amendment was considered in Committee. He has been able to come nearly all the way with me in regard to Amendment No. 18, and I should be grateful if he would be so kind as to say why he is not able to do so in the case of Amendment No. 19.


My Lords, as in the case of the Housing Act, I discussed this matter with my honourable and right honourable friends and my noble friend Lord Sandford in the Department of the Environment, and we got into touch with the Secretary of the Aboriculture Association, whose name was given to me by the noble Lord. They could not provide instances in which the existing provisions did not seem good enough. We have not heard anything from the local authority association which suggests that they are inadequate. The Department of the Environment and the Ministers have therefore concluded that there is not really a case to single out this particular part of the fairly large field of amenity and the reinforcement provisions for being dealt with in this Bill.

This is not a matter that is entirely dead; there is a continuing discussion going on between the Department of the Environment, local planning authorities and others interested in this matter. I think the best thing to do is to leave those negotiations to go over the whole amenity field, of which the preservation of trees is only a part, and not try to interfere in a somewhat haphazard way in this Bill. I took up this matter and that is the answer I received.


My Lords, I am most grateful to the noble Viscount for what he has told us and for the obvious care he has taken since Committee stage to go into this matter. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT COLVILLE OF CULROSS: moved Amendment No. 20: After Clause 31 insert the following new clause:

Increase of maximum punishment under section 27(1) of the Housing Act 1957

" . In section 27(1) of the Housing Act 1957 which prescribes the maximum punishment for the use of premises in breach of a closing order) for the words "twenty pounds" there shall be substituted the words "£100"; and for the words "five pounds" there shall in relation to any day after the coming into force of this section be substituted the words "£20'."

The noble Viscount said: My Lords, on second thoughts we were convinced that in this case there was something which needed to be done. In his speech the noble Lord, Lord Stow Hill, gave practical examples on this one section alone of the Housing Act. I think for the rest the local authorities have powers to pull the houses down, but in this case there seems to be a difficulty and the Government agree that this would be the time to make an improvement and to increase the penalties. That is what the Amendment does. I beg to move.


My Lords, again I am extremely grateful to the noble Viscount. I quite see the distinction which he draws between this particular section of the Housing Act with which the Amendment deals and the others where there is a power to pull down the houses concerned. I am very much indebted to him and I am delighted to ask the House to approve his Amendment.

Clause 35 [Reference to Court of Appeal of point of law following acquittal on indictment]:

5.48 p.m.

LORD STOW HILL moved Amendment No. 21: Leave out Clause 35 and insert the following new clause:

Case for the opinion of the Court

"35.—(1) If in the opinion of the Attorney-General it is desirable for the purpose of the due administration of the criminal law to obtain as a matter of urgency the opinion of the Court of Appeal upon a question of criminal law upon which in his opinion there is uncertainty, he may, if he considers that it is in all the circumstances proper so to do in the public interest and that by so doing it is not likely that he will cause injustice, distress or hardship to any living person who has appeared or is appearing or about to appear as a defendant before any court exercising criminal jurisdiction, formulate a case for the opinion of the Court of Appeal, in such a form as shall seem to him best calculated to enable the Court of Appeal to pronounce an opinion on such question.

(2) The Court of Appeal may, on motion being made by the Attorney-General in that behalf, take the said case into consideration, and after hearing the Attorney-General and such counsel as he may appoint to assist the Court and counsel instructed on behalf of any party who in the opinion of the Court ought to be heard give their opinion on the matters raised in the said case.

(3) Where the Court of Appeal have given their opinion on any matters referred to them under this section, the Court may of their own motion, or in pursuance of an application in that behalf, refer such matters to the House of Lords, if it appears to the Court that such matters ought to be considered by that House.

(4) If any such matters are referred to the House of Lords under subsection (3) of this section, the House shall consider such matters and after hearing the Attorney-General and such counsel as he may appoint to assist the House and counsel instructed on behalf of any party who in the opinion of the House ought to be heard, give their opinion on such matters accordingly.

(5) Subject to rules of court made under section 1(5) of the Criminal Appeal Act 1966 (power by rules to distribute business of the Court of Appeal between its civil and criminal divisions) the jurisdiction of the Court of Appeal under this section shall be exercised by the Criminal division of the Court, and references in this section to the Court of Appeal shall be construed accordingly as references to that division of the Court; and section 35(1) of the Criminal Appeal Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.

(6) The Attorney-General shall pay the costs of any proceedings under this section including the costs of any other party heard by the Court of Appeal or the House of Lords."

The noble and learned Lord said: My Lords, this Amendment is an endeavour to put on paper a proposal to meet the object which the Government sought to achieve by their Clause 35, in a way which would avoid the undesirable consequences which I and those associated with me submitted to the Committee would result if Clause 35 were left in its existing form and used by the Government. I do not wish to go into detail again about the objections which were urged. Shortly, they were that if in a given case the Attorney General wanted the opinion of the Court of Appeal or the House of Lords on a point of law which had been decided in favour of an accused person in that given case, the result might well be that that person would be subjected to very grave hardship. He would be subjected to hardship because everybody would know —so I submitted—that he was the person involved in the case. It would constantly be said of him, and sometimes in his presence, that he was extremely lucky to have avoided conviction and punishment and that he only did so because the learned judge who tried him got the law wrong and spelled out the law in his favour, whereas the Court of Appeal or the House of Lords as the case may be, declared that in effect the judge should have laid down the law in a sense which would have resulted in his conviction.

The House may have noticed if they have looked at the debate on Committee that I cited an actual case of which I had some knowledge, in which a man had been convicted of murdering his wife. He tried to plead that the offence did not amount to murder but amounted to manslaughter. The jury held that it amounted to murder and he was in due course executed. What I asked the House to assume was that had the jury come to a different conclusion and convicted him of manslaughter, acquitting him of murder, his life might have been very different in succeeding years if it had been thought of him by the neighbours, by his friends, by his workmates, and by everybody with whom he came into contact, that but for the fact that he was lucky enough to have the law declared by the judge who tried him in a sense too favourable to him he would have been convicted of murder and hanged. That was the case I instanced purely as an example.

Now, my Lords, in order to avoid the hardship which might result in a case of that sort what I and those associated with me have sought to do is to put upon the Marshalled List a draft clause which would provide—if I may direct the attention of the House to the critical words in the draft—in subsection (1) that the Attorney-General: …may, if he considers that it is in all the circumstances proper so to do in the public interest and that by so doing it is not likely that he will cause injustice, distress or hardship to any living person who has appeared or is appearing or about to appear as a defendant before any court exercising criminal jurisdiction, formulate a case for the opinion of the Court of Appeal, in such a form as shall seem to him best calculated to enable the Court of Appeal to pronounce an opinion on such question.

May I say at the outset that this is not in principle in any real sense a new departure in our law. There is already power in an Act of 1833 to invite the Privy Council to express an opinion on a matter of law. We are really in this draft clause following that precedent. What we seek to do is to provide power in the Attorney-General, subject to the safeguards which I have just read out, to draft an abstract case not related to any known case at all at any time that he thinks fit, if he wishes the opinion of the Court of Appeal on a point of uncertainty, and submit that case to the Court of Appeal, and in due course in case of need, to the House of Lords.

That approach, in my submission, has this advantage: the Attorney-General does not submit any actual case. It was suggested by the noble Viscount—and I think he had in that matter consulted the noble and learned Lord the Lord Chief Justice— that really the position of the type of individual whom I instanced in the case which I cited could be adequately safeguarded by rules of court. Rules of court might lay down that the case submitted should, as it were, disguise the implication of that individual in that case. I doubt very much whether that is possible. You take a case which has excited some press notoriety. It will be known in the man's neighbourhood; it will be known by everybody who knows of him, at his place of work or wherever he goes that he was implicated in that case. However you disguise the case, by suppressing his name or by taking other precautions to prevent attention being directed to him, it is virtually certain that over and over again a guess will be made that he was the person involved and he will be subjected to the type of distress I sought to describe earlier in my speech. I do not believe it is possible to safeguard with real certainty that in case after case if this power is used somebody, he and his family and his friends will not be subjected to great distress: it will be known that he was the person involved although his name is not used.

Therefore, our approach is to say that the Attorney-General can ask this question without relation to any case. Supposing there emerges in the course of experience an uncertainty with regard to some aspect of criminal law. If the draft which we have put upon the Marshalled List is accepted the Attorney-General has not got to wait for any particular case; we can just draft an abstract case as you can for the Privy Council. I should say that with some qualification because it is not quite like that in the case of the Privy Council but it is not very far from it. After all it is part of the jurisprudence of the International Court and other foreign courts and it is not really so revolutionary as all that. He can draft a purely imaginary case, one not related to any given situation; he can draft it in such a form as to enable the Court of Appeal to pronounce precisely on the point he wants to know. He can do it whenever in the public interest he thinks it necessary to do so. He has not to wait for years for the right case to emerge. Even if he has to wait for the right case to emerge and he does under the existing Clause 35 draft it upon the basis of that case, that case may not have all the ideal features present in order to obtain the opinion of the Court of Appeal. In the facts of that case there may be some aspect lacking, so that the Court of Appeal may not be able by reference to that case adequately and completely to answer the question as to which there is an uncertainty which the Attorney-General wants resolved. He can draft his case if he does it without relation to any given case: in the first place, whenever it is necessary, whenever there really is a case with regard to which it is urgent that the Court of Appeal or House of Lords should authoritatively lay down the law once and for all. He can do it whenever that is necessary. Secondly in order to obtain the completest, fullest opinion of the Court of Appeal or House of Lords he can so formulate his case as precisely to raise in the best and most direct form possible the actual case on which he wishes the opinion of the Court of Appeal or the House of Lords.

Therefore, the submission I make to the House is, that in the first place no individual is going to be subejcted to distress nor his wife, nor his children, nor his relations or her relations. There will be little risk of that. In the second place, it can be done whenever in the public interest the Attorney-General thinks there is a real uncertainty. In the third place, the Attorney-General can so formulate the case as to make it precisely apposite to elicit the complete expression of opinion on the point of law on which he considers there is an uncertainty. Has the language we have chosen achieved that objective? What we seek to do is to leave it to the Attorney-General to ask himself: "If I draft a case now in order to obtain the opinion that I require, is it likely that by so doing I will cause injustice, distress or hardship to any living person who has appeared or is appearing, or is about to appear as a defendant before any court exercising criminal jurisdiction?" It is left to the discretion of the Attorney-General.

I hope that the House will think that the Attorney-General is an officer of Government who can be relied upon to exercise a discretion of that sort appropriately and that he will effectively avoid the risk of causing distress. All human institutions are imperfect. He may make a mistake. It may be that there is somebody of whom he is unaware who in fact will be distressed. That should be a rare case if he and his Department make inquiries to see that there is nobody actually involved in criminal proceedings or about to be so involved or a person who has been so involved whose case is so close to that which he formulates as to be likely to be identified with it. As I say, mistakes may be made, but the Attorney-General has after all a great deal of information at his disposal; and if as I am quite certain all Attorney-Generals would do, he exercises his discretion conscientiously and with care, there should be little risk of the sort of distress which I have tried to describe being caused. That is the endeavour which is embodied in this draft. It is again a home-made draft; it has not been subjected to Parliamentary Counsel's criticism and analysis. I hope that the noble Viscount may think that at any rate it is on the right lines, and he may think it appropriate between now and the Third Reading of this Bill to take back his own Clause 35 and recast it along the general principles set out in the draft we have put forward. I beg to move.

6.0 p.m.


My Lords, again I am grateful to the noble Lord, Lord Stow Hill. It is very good of him and his noble friends, if I may say so with all sincerity, to take so much trouble to try to work out these provisions and to do it to assist us. If I cannot go very far along the road with him on this particular occasion—and I am afraid I do not think I can—I do not want him to feel that he has been snubbed; we genuinely appreciate the efforts that he has made.

There are in fact rather serious difficulties about the drafting of this, difficulties which I strongly suspect would be inherent in almost any form of wording which attempted to do this sort of hypothetical exercise. I will mention one or two which I think would almost certainly go across the board whichever way you sought to do it. First of all, the noble Lord suggested that subsection (1) of the new clause would be a case where you could leave it to my right honourable friend the Attorney General to choose cases where nobody is in a similar situation. Any conscientious Attorney General would, I am sure, act in precisely the way the noble Lord, Lord Stow Hill, said he would. He would take a great deal of trouble to make sure that this act of conscience, this duty laid upon him, was not infringed. But I doubt very much whether there is information available to my right honourable friend, or anywhere, about all the facts of all the cases that are tried in all the magistrates' courts all over England and Wales and in Scotland too, so that he could really be sure that he was in a position not to tread on the toes of some recent or immediately forthcoming case.

Conversely, we get the situation where an actual case has produced the precise problem which the Government wish in this piece of the legislation to cure, where we have a divergence of views between two judges (I will not go over all the background), where there has obviously arisen a difference which needs to be resolved. The way in which this is put at the moment, in order to avoid inflicting hardship and distress on the individual, means that that would be the one case when the Attorney General could not act because he would be precluded by exactly the provision which is intended to protect the individual. I do not see how you can get round this; yet that is exactly the sort of case, the only sort of case, in which this power is sought to be used and in which it is sought to be granted by the Bill, to clear up these things as they actually arise.

We come on to what is, I think, perhaps an even more, I would not say sinister but undesirable case where this might occur, and where we are almost getting to the stage of putting the courts in the position of the Legislature. I do not think that any responsible Attorney General would often do this, and perhaps it is an absurd thing to suggest, but supposing that there is doubt about the ambit of a criminal offence and the prosecuting authorities are not very sure what Parliament means but they are determined that they are going to get the people who are committing this sort of offence. We have in the noble Lord's hypothetical methods here a remedy for this sort of doubt, because you could put up three of four hypothetical prosecutions to the Court of Appeal and see in which one of them, formulated in which way, they will in fact say that a conviction can be upheld. We would, therefore, I think, be in the position where you could, as it were, seek your way through the preliminary difficulties of the criminal law and make sure you charge the man in the way that you know would be upheld as a matter of law in the court. I must say that I am not sure I find this something that I would altogether welcome. If Parliament is going to legislate for criminal offences it should do it properly and clearly; and if it does not do it properly and clearly then it is not, I suspect, for the prosecuting authorities and the courts to say in advance how it ought to have been done so that people can then be prosecuted in the correct way. I may not have put that quite correctly, but I hope the noble Lord sees the potential danger in what I am saying. I do not think it is desirable.

There are other difficulties, but I need not go into them, because the noble Lord is not insisting on every word of this draft. T have taken to heart what noble Lords in various parts of the House said on Committee stage about the desirability of protecting the individual. What I am not quite sure about is why it is that noble Lords do not believe the noble and learned Lord the Lord Chief Justice. After all, he is a person whom one would expect to know how the Court of Appeal Criminal Division would work, and he is a noble and learned Lord who is not unfamiliar with the rules of court. He described to the Committee at the last stage of the Bill in quite some detail how he thought this could be done so that really in practice there would not be the danger of the identity of the person being divulged, at any rate by mistake, and indeed there would be a good deal of protection all round.

It is perfectly true that if the legal journals take the matter up—and I think in order to have any usefulness the legal journals and the law reports would have to report these cases—and somebody chose to do a good deal of research, it probably would be possible to correlate the decision of the Court of Appeal under the procedure we have in the Bill with some case that actually happened. But my noble and learned friend the Lord Chief Justice said that there was machinery—and he described it—which would prevent anybody being jeopardised to a very large extent. I am afraid that when it comes to things of this sort I must listen to what the noble and learned Lord says, and I would seriously suggest to the House that they would be wise to do so as well. I have done this because in a later Amendment, which applies not only to England and Wales but also to Northern Ireland, the second half of Amendment No. 28, I have provided that this provision shall not come into effect until rules of court are made for precisely the purpose and in exactly the sort of way that the noble and learned Lord the Lord Chief Justice suggested. That is the safeguard that I offer to the House on this matter. There cannot be any case brought under this clause until those rules of court have been made.

The machinery for making rules of court is not altogether unsophisticated. There are some very skilful people involved, and occasionally, I believe, it gives rise to a good deal of argument. All the practical side of it is worked out, and this would be the opportunty to go into the full details. I would hope that the House would think this was an adequate safeguard whereby we could make sure that people were not distressed, and that this was really better than embarking on a very difficult course such as that contained in the noble Lord's new clause. I hope that he will look at my Amendment No. 28, if he has not done so already, and consider this matter, and I think he will probably not press this particular Amendment to a Division. I would conclude by saying that I am grateful to him and his noble friends for applying their minds to it again.

6.10 p.m.


My Lords, I must leave it to my noble and learned friend to decide what course to take. It would not seem to me that the proposed rules of court really answer the matter. All they are going to do is to make this provision for restricting the disclosure of the identity of the acquitted person: the court will not have to prevent his identity being disclosed; it may merely restrict it. What good will that do him? I do not know what course I should take if I was in my noble and learned friend's place. I ventured to describe this clause as it is now, and a little ameliorated by Amendment No. 28. as a monstrous clause. I still believe it to be a monstrous clause which ought not to be part of our law. If it becomes part of our law, I will do everything I can to get it repealed as soon as possible.

A man who has been acquitted of murder is extremely unlikely to have had bail, so he will have been in prison for some months and then has to go through a public trial as well. This, of course, is a grave traumatic experience. Then, if he wants a holiday and says, "Now it is all over I am going away" the solicitor will say, "You have to remember that, under a new section of an Act which has just been passed, the Attorney General is entitled at any time—he may do it next week, or you may have this hanging over your head for two years because, quite exceptionally in our legal procedure, there is no time limit on the Attorney General's producing your case to an appellate court—to say that you ought to have been convicted ". This is absolutely monstrous.

The Government realise how prejudicial this is to the individual concerned because the Bill goes out of its way to give him the right to argue in the Court of Appeal that he was rightly acquitted, and provides that he can have legal aid for it. If he is not going to be adversely prejudiced, why have they done that? It is perfectly obvious, is it not? If an actual case is going to be taken, the person who has been acquitted is going, in the eyes of any sensible person, to be adversely affected, because it will be said, "Well, the Appeal Court has said that if only the judge had known the law, you would have been convicted ".

I listened very carefully to everything which the noble and learned Lord the Lord Chief Justice said, but I could not understand at all how this kind of tragedy could be averted. The noble and learned Lord said at one point: I have confidence that if care is given to this problem it will be possible to make the argument in the Court of Appeal so flat and uninteresting to the general public that the apprehension of damage to the accused's reputation will be unfounded."—[OFFICAL REPORT, 2/8/72; col. 294.] I must say that no counsel I know has had any training or experience in making his arguments exceptionally flat and uninteresting. If it has been a sensational murder case and in all the papers, how you make your argument so flat and uninteresting that no paper bothers to report it, I do not know. I do not see how it can be done.

As my noble and learned friend Lord Stow Hill has said, the whole thing is quite unnecessary. This does not come from the report of the Advisory Council, or the advisory committee, or anything of that sort. This, as we have been frankly told, is simply an idea of the Director of Public Prosecutions, who says that sometimes there is a point of law which hangs about in the lower courts, and that it would be convenient for him to get a higher court to decide it. I have the highest regard for the present Director of Public Prosecutions, and I quite understand his wanting to do this. But why is it necessary to take a particular case? If he wants to get a point of law decided—and I accept that is what it is that he wants—show me the point of law that cannot be expressed in words! If it is a point of law, why does he not write down on a piece of paper the point of law he wants deciding? Why on earth does it have to be attached to all the facts of a particular case?

I really do not think that this matter has been thought out. I still think that it is a monstrous suggestion to make, which I hope will never become our law. However, I give no advice to my noble and learned friend Lord Stow Hill, because at the Committee stage of the Bill we were 153 and the Government only saved this clause by 9 votes. A great many, including I think one noble and learned Lord, voted against the continuation of this clause. Those voting against included a number of Cross-Benchers and of course some noble Lords opposite: this in a House as thin—and nobody is to blame after the gruelling fortnight we have had —as it is at the moment. I do not know that very much more can be done at this stage of the Bill.

I would beg the Government to think about this again, because it simply does not make sense. It really makes nonsense both ways: first, because it is cruelly unjust that somebody who has been acquitted should have, maybe immediately or maybe two years after, to go to a court for the court to say that he ought to have been convicted; and secondly, because it is quite unnecessary to achieve the object which the Director of Public Prosecutions, perfectly properly, wants. Where there is a point of doubt that is kept hanging about in lower courts and never goes to appeal, and one judge decides it one way and another judge the other, quite naturally he wants the appellate court to decide it so that all the judges will be doing the same thing. But I cannot conceive of a point of law which cannot be expressed in words. The formula which my noble and learned friend Lord Stow Hill uses is taken from the Privy Council Act, under which a point of law can be put to the Privy Council. I really cannot see any difficulty as to why this cannot be put without tying it to any individual case. Having said that, I do not know what course to advise my noble and learned friend to take.

6.16 p.m.


My Lords, we are in a very unfortunate position on this particular Amendment because, as the noble and learned Lord, Lord Gardiner, has reminded us, when this matter was debated in Committee before a full House the Government had a majority of only nine, and very grave apprehensions about this clause were expressed, if I remember rightly, from all parts. If to-night the noble Viscount is going to stand firm and call in his automatic majority in order to reject the Amendment, which seems to me to have great merits, I feel that it will not have been given a fair run. I would plead with the noble Viscount to consider the requests that he should undertake to look again at this Amendment before the next stage. While it is perfectly easy to pick holes in the Amendment as he has done, on the other hand, the objections to the clause as it stands seem to me so overwhelming that we really have to start again, and try to see whether we can find some other formula that will meet the difficulties about which the noble Viscount is talking. I beg of him that he does not, in this thin House, carry through a very radical reform of our legal procedures, and the whole administration of criminal law, in an atmosphere and in conditions of this kind towards the end of this very hard Session.


My Lords, I do not think I will take up the time of the House debating with the noble Viscount the arguments lie has advanced against the proposals that we make from this side of the House. This is not because there is no answer to those arguments—in fact I thought that all three of them were completely unfounded. What has emerged from this debate, as emerged in the debate at the Committee stage, is that there is a radical difference of view here. I should not be overstating the matter if I said that noble Lords on this side of the House cordially dislike Clause 35. If the noble Viscount felt able to say that he is sensitive to that; that he understands the profound feelings we have about the clause and the real extent of our dislike, and would agree to take the clause back and think about it, with the objective of trying to have something put on the Order Paper before the Third Reading stage of this Bill, then I would ask leave to withdraw this Amendment in order to give him a chance to do so. But unless he is able to say that, I am bound to say that I think that the clash of view here. and the clash of feeling in terms of broad general justice, is so acute that I ought to ask the opinion of the House.


My Lords, it might be helpful if I said one word, by leave, because I do not want to fail to respond to what has been asked of me. I have not picked holes in the Amendment just to be beastly. I have done it to show that the whole hypothetical approach when one is dealing with day-to-day domestic criminal law is a very difficult matter. I am not at all sure that the analogy with the Privy Council is right. The sort of matters which the Privy Council deal with are not ones which involve the interpretation of Statutes about drugs or evidence, and they are not matters which affect the members of the public in this country in front of our criminal courts day-by-day. The Privy Council does not deal with matters of that sort, as I understand the 1833 Act. If I thought that the hypothetical approach offered any form of success I should certainly take this Amendment away, but I am afraid that I do not. The Committee has already once expressed a view on this subject. It may very well be that noble Lords opposite are sorry that the majority did not go their way, but a majority is a majority. The Committee has voted on the principle of Clause 35. I think the debate was on the Question, Whether Clause 35 shall stand part of the Bill?, if I remember correctly.

What I am saying is that I will look at the Amendment again. I will do so in the almost certain expectation of finding that a hypothetical approach will not do. Therefore, I must make it clear that I hold out little hope of being able to reverse completely the whole approach that we have made. But if noble Lords would like me to look at it again, I will do so. I have already done it once. I have already considered at great length the question of rules of the court, and I put down an Amendment because I hoped that it would go some way to assure noble Lords that this provision is not so outrageous. And I must remind the House that the clash is between the noble and learned Lord, Lord Gardiner, and those who support him, and the noble and learned Lord, the Lord Chief Justice, who says that it can be done without causing hardship to individuals. That is surely the issue before the House.


My Lords, in view of the very qualified reply which the noble Viscount has just given, I

6.31 p.m.


After Clause 35, insert the following new clause: