RESTRICTIONS ON IMPRISONMENT ETC. OF PERSONS NOT LEGALLY REPRESENTED

HL Deb 21 September 1972 vol 335 cc1361-99

".—(1) A magistrates' court on summary conviction of the Crown Court on committal for sentence or on conviction on indictment shall not sentence to imprisonment, to Borstal training or detention in a detention centre a person who is not legally represented in that court and has not been previously sentenced to that punishment, unless either—

1. (a) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
2. (b)having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.

(2) For purposes of this section a person is to be treated as legally represented in a court

think I ought to ask the opinion of the House.

6.24 p.m.

On Question, Whether the said Amendment (No. 21) shall be agreed to?

Their Lordships divided: Contents, 30: Not-Contents, 46.

CONTENTS
Arwyn, L.	Jacques, L.	Shinwell, L.
BIyton, L.	Llewelyn-Davies of Hastoe, B.	Slater, L.
Champion, L.	Lloyd of Hampstead, L.	Stow Hill, L.
Crook, L.	Maelor, L.	Strabolgi, L.
Donaldson of Kingsbridge, L.	Norwich, V.	Strange, L.
Foot, L.	Peddie, L.	Taylor of Mansfield, L.
Gardiner, L.	Phillips, B. [Teller.]	Wade, L.
Greenwood of Rossendale, L.	St. Davids, V.	White, B.
Henderson, L.	St. Just, L.	Wootton of Abinger, B.
Hoy, L. [Teller.]	Sempill, Ly.	Wynne-Jones, L.

NOT-CONTENTS
Aberdare, L.	de Clifford, L.	Kilmarnock, L.
Balerno, L.	Denham, L. [Teller.]	Limerick, E.
Balfour, E.	Drumalbyn, L.	Lothian, M.
Belhaven and Stenton, L.	Eccles, V.	Lyell, L.
Belstead, L.	Elles, B.	Mansfield, E.
Berkeley, B.	Emmet of Amberley, B.	Monck, V.
Birdwood, L.	Ferrers, E.	Mowbray and Stourton, L. [Teller.]
Brooke of Cumnor, L.	Gainford, L.
Brooke of Ystradfellte, B.	Goschen, V.	Rankeillour, L.
Brougham and Vaux, L.	Gowrie, E.	Saint Oswald, L.
Colville of Culross, V.	Grimston of Westbury, L.	Sandford, L.
Colwyn, L.	Hailsham of Saint Marylebone,	Selsdon, L. (L. Chancellor.)
Courtown, E.		Somers, L.
Craigavon, V.	Hylton-Foster, B.	Strathclyde, L.
Craigmyle, L.	Jessel, L.	Swansea, L.
Cullen of Ashbourne, L.	Killearn, L.	Young, B.

Resolved in the negative, and Amendment disagreed to accordingly.

if, but only if, he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before he is sentenced, and in subsection (1)(a) and (b) above "legal aid" means legal aid for the purposes of proceedings in that court, whether the whole proceedings or the proceedings on or in relation to sentence; but in the case of a person committed to the Crown Court for sentence or trial, it is immaterial whether he applied for legal aid to, or was informed of his right to apply by, that court or the court which committed him.

(3) In this section "previously sentenced" means previously sentenced by a court in any part of the United Kingdom, but for the purposes of this section a person shall not be treated as having been previously sentenced to imprisonment by reason only of a sentence of imprisonment which has been suspended and which has not taken effect under section 40 of the Criminal Justice Act 1967 or section 19 of the Treatment of Offenders Act (Northern Ireland) 1968; and "detention centre" means in relation to Northern Ireland young offenders centre."

The noble Viscount said: My Lords, here I come back to the very substantial debates that we had at the Committee stage about legal aid. Noble Lords opposite then attempted—and there is on the Order Paper a repetition, though a redrafted repetition, of this attempt—to incorporate in the legislation what, if I may be forgiven for doing so, I call the Widgery criteria for granting legal aid. We had tremendous debates about this; and we were also reminded by noble Lords opposite, and I think particularly by the noble and learned Lord, Lord Gardiner, that it was not altogether satisfactory to talk terms of the percentage of people who applied for legal aid and then got it, so much as the people who might have applied for legal aid but did not know that they could. We are therefore on a very similar point to the one in regard to bail. I thought about this subject at great length, and I discussed it again with my colleagues. I also discussed it with the draftsman, because it is not altogether a very easy subject. It seemed to us that, out of the Widgery criteria, there was at least one point, and a very important one, which was susceptible of being expressed in the Statute, and that was the one which relates to custodial sentencing. Not only was it possible to express it in the Statute, but it ties very closely in with the philosophy of for instance, Clause 13 of the Bill, and indeed of Clause 10(3), which is the O'Keefe principle, that one should see whether there is any method that one can devise to help people stay out of prison, or anything else that looks like prison.

What we have done in this Amendment is to provide that nobody shall go to prison, to borstal or to a detention centre without at least having been offered or having been considered for legal aid, unless of course he refuses to apply. Some people will not be entitled to legal aid because they have money of their own; some people will not get it; and for other reasons some people will not apply for it. But at least we can ensure that in suitable cases the courts must offer legal aid to everybody before they send him to prison; and, if necessary, this may mean that they will have to remand the case so that they may be addressed by way of mitigation. As a matter of fact, those who have advised me on this matter think it will take a very much different form, and that the probability is that in most cases legal aid will be granted a good deal earlier, in which event it will also affect the question of bail, because it will be apt to cover the applications for bail at an earlier stage. Therefore it is a fairly major Amendment to the Bill, and it is one which I hope noble Lords opposite will welcome.

I know (because he told me so last night) that the noble and learned Lord, Lord Gardiner, does not understand the last limb of subsection (2). I do not think it is really as difficult as all that. The point is that, in the case of a committal from the magistrates' court to the Crown Court, the offer of legal aid can have been made either in the magistrates' court or in the Crown Court in order to qualify as having been an offer that fulfils this particular provision in the Bill. What we want to make sure—and this is of some importance, too, for the purposes of getting the legal aid offered as early as possible—is that when the Crown Court decides on a case, either after trial or after the committal for sentence, and thinks it is going to send somebody to prison, it will, if there has been no previous offer of legal aid, have to offer it. But what we should also wish to ensure is that a person can, for these purposes, be offered legal aid by the magistrates' court on the committal proceedings, or indeed at the trial at the end of which he is committed to the Crown Court for sentence; and it is in order to cover that situation that we have put in these lines. I do not think they are really very difficase. Having said that, I do not know what course to advise my noble and learned Lord some problem.

When one looks at the next Amendment to be moved by noble Lords opposite, one sees that it goes a great deal further. I do not particularly want to discuss these Amendments together, as I think the noble and learned Lord may want to move his Amendment separately. It spells out these criteria. I have picked one which I think is clearly identifiable. It is entirely in line with the philosophy of the Bill. I believe that it needs to be experimented with a little to see how, in practice, it works out. I think that to go further would be so expensive to the Legal Aid Fund that it would be better to take the thing in stages—and this is by far the most important stage, the question of imprisonment. I hope that, even if noble Lords opposite do not think that this is the complete answer, they will accept that it is quite a substantial concession on the part of the Government to the point of view that they were putting forward—and one, I may say, which I am glad they made, because in this respect I think they are right and that it is correct that we should put this in the Bill. I therefore commend it to the House, and I hope it will not altogether be damned with faint praise by noble Lords opposite because it does not go all the way they wanted. I beg to move.

LORD GARDINER

My Lords, we on these Benches welcome this new clause. It has gone a considerable way to meet what we were desiring to obtain, and we gratefully acknowledge that. It is a real step. I shall defer what further I have to say until we come to the next Amendment. I do not want to be thought at all critical of the drafting: it is simply that when we considered the last four lines of subsection (2), being, after all, a group of Peers who are used to considering draft legislation, some of us lawyers and some of us magistrates, we simply could not agree among ourselves what it meant. All I will do is to suggest that if a group of lawyers and magistrates cannot understand something, it is possible that it could be drafted rather more clearly.

I have listened most carefully to what the noble Viscount has said, and even now I am not quite sure. It says, "for legal aid". In the magistrates' courts, of course, there are two entirely different things: there is legal aid for the proceedings in the magistrates' court and legal aid for the proceedings before the Crown Court. The magistrates can grant either or both. They use an entirely different form, which they have to sign, for whether it is legal aid in the magistrates' court or legal aid in the Crown Court. If I understood rightly what the noble Viscount said, a person can still be sent to prison in the Crown Court, for the first time, unrepresented, if at any stage in the magistrates' court he had declined legal aid, whether legal aid in the magistrates' court or in the Crown Court. This, in my respectful submission, would be wrong. It is quite usual for a man, thinking his case is going to be dealt with summarily—and so do the Bench, for that matter to decline legal aid. Then, when they come to the end, they either say, "Although both prosecution and the defence have agreed, we just do not think that this is a case which ought to be dealt with summarily; we are going to send it for trial"; or they may convict and send it for sentence to a higher court. Then, in such experience as I have, knowing what has happened about legal aid before, they invariably say, "We consider this case so serious that we do not think that six months in prison would be enough, so we are going to send you to a Crown Court for sentence. Do you want legal aid in the Crown Court?"—and the man who said, "No" before now says, "Yes".

It should not be right, but it is impossible to tell so from the wording, that because the man. may think, "If you are dealing with this summarily I will do it myself", it should be possible to send him to prison for the first time, unrepresented, simply because that has happened. The existing wording is, if he has applied "for legal aid"—it does not say whether it means legal aid for the purposes of the magistrates' court or whether he has applied to the magistrates for legal aid in the Crown Court. As the wording stands at the moment, I think it would apply in the case which I have ventured to put and I gather from the noble Viscount that he did not himself think that that would be right. I do not ask him to come to any conclusion about it to-day. As I have said, we welcome this Amendment and the proposals in it, but perhaps he will be good enough to think about the matter before the Third Reading.

On Question, Amendment agreed to.

6.42 p.m.

LORD GARDINER moved Amendment No. 23: After Clause 35 insert the following new clause:

Amendments to section 75 of Criminal Justice Act, 1967

". In section 75 of the Criminal Justice Act 1967 (Circumstances in which legal aid may be given) there shall at the end of subsection (5) be added five new subsections as follows:

"(6) In the circumstances described in the next following subsections it shall be the duty of a court having power to make a legal aid order to ascertain, in the case of any person brought before it who is not represented by counsel or a solicitor, whether such person desires to be so represented and, if such person states that he so desires, to consider whether legal aid ought to be granted to him, and if such court decides not to make a legal aid order in his favour, to state its reasons for such decision.

(7) In the Crown Court the circumstances referred to in subsection (6) above are:

1. (a) all committals, whether for trial or for sentence;
2. (b) appeals from a magistrates' court in the cases referred to in subsection (8)(b) below.

(8) In a magistrates' court the circumstances referred to in subsection (6) above are:

1. (a) all preliminary hearings in respect of offences triable only on indictment;
2. (b) all other cases where it appears to the court—
1. (i) that the charge is a grave one in the sense that the accused is in real jeopardy of losing his liberty or livelihood or suffering serious damage to his reputation; or
2. (ii) that the charge raises a substantial question of law; or
3. (iii) that the accused is unable to follow the proceedings and state his own case because of his inadequate knowledge of English, mental illness or other mental or physical disability; or
4. (iv) that the nature of the defence involves the tracing and interviewing of witnesses or expert cross-examination of a witness for the prosecution; or
5. (v) that legal representation is desirable in the interest of someone other than the accused as, for example, in the case of sexual offences against young children when it is undesirable that the accused should cross-examine the witness in person.

(9) In the Crown Court, in a Magistrates' Court and in the Queens Bench Division of the High Court the circumstances referred to in subsection (6) above are whenever a person who has attained the age of seventeen and who is a defendant on a criminal charge in any such Court is remanded or committed by the Court or the proceedings of the Court are adjourned and the Court on any such occasion is not prepared to grant bail to that person.

(10) Where a court revokes a legal aid order it shall do so only after having taken into account the matters contained in subsections (6), (7), (8) and (9) above, so far as applicable to the circumstances of the case, and it shall state the reasons for such revocation." "

The noble and learned Lord said: Subject to the views of my noble friends, in view of the last Amendment and the degree to which the Government have met us, we ought not to press for this tonight. I would only say this. I think that most of us have thoughout felt two things: First, that we really must do the best we can to reduce the appalling overcrowding in the prisons; secondly, that the most hopeful field is to reduce the numbers of those sent to prison although they are innocent or have not been convicted. We know that from 2,000 to 3,000 people a year who are completely innocent are sent to prison because they are refused bail. We know that between 20,000 and 30,000 a year are sent to prison unconvicted and before trial, although it is found at their trial that although they have done something wrong theirs not a case which merits their being sent sent to prison. Here, in a sense, are people sent to prison quite unnecessarily.

I would not put the matter any differently from the way in which the noble and learned Lord the Lord Chancellor put it in a public speech to the Gloucestershire branch of the Magistrates' Association as reported in The Magistrate of February, 1972. He said: Bail is important, and it is difficult. It is important because it affects the liberty of the subject. In point of fact it is the only example in peacetime, where a man can be kept in confinement for an appreciable period of time without a proper sentence following on conviction after a proper trial. It is therefore the solitary exception to Magna Carta." He went on: The bench has to balance the rights of the public against the rights of the individual. It may (or may not be) that the rights of the public are more important. But the wrong to the individual, namely the deprivation of his right to liberty, is more certain, and, where he is innocent, can be more serious He continued: …prior to conviction, prima facie defendant is entitled to bail, especially before trial, unless there is some reason to believe that he may run away, get at the witnesses, or commit further offences.

Then he deprecated something which he said is quite contrary to the philosophy of Magna Carta and English law, the practice if it exists of some benches or justices sending young people to prison to give them a taste of the medicine. He went on: To deprive a man of liberty pending trial, or even pending sentence is to deprive a certain number of persons of liberty who are going to be acquitted, or upon whom no custodial sentence is going to be passed in the event, and to do so is to deprive them of something to which they are as it were in the sight of God, who foresceth all things, absolutely entitled. He himself felt that this was the field in which we ought to be trying to reduce the prison population. He said: …the number of male unscntenced prisoners held in custody has actually risen from 2,891 in 1968 to 4,400 in 1970 at any one time. This, of course, corresponds to a considerable prison population in the course of a year. it corresponds to the 20,000 to 30,000 that I have referred to in the course of a year— Of those remanded in custody only about half are eventually given a custodial sentence, although it is fair to point out that another 14 per cent. are given a suspended sentence. Between 4 per cent. and 5 per cent. are eventually acquitted. Later he said: Where I think progress can be made is in reducing the much larger number of cases of prisoners remanded in custody pending trial, sentence or appeal (getting on for 20,000 in 1969) who in the event are not in fact given a custodial sentence although convicted. Finally he said: …the figures are sufficiently large to make me believe that there is among them a proportion of instances where bail might have been granted. To do so would not have interfered with justice. and would certainly have made a modest, but worthwhile, contribution to the overcrowding in our prisons.

For this reason we have felt that the most important single thing is to get legal aid for bail. Two-thirds of those who are sent to prison without bail are unrepresented. Where they are represented there is a double chance of getting bail than where they are not. Twice as many (where men are represented) get bail than in cases where they do not.

The ordinary person, particularly if he is a first offender, when he is arrested is brought to court the next morning and may never have been in a court of law in his life. Some of them do not even know what bail is. A number of them overhear exchanges between the bench and somebody from the police and do not realise that what is being discussed is whether they are to be sent straight off to prison. If they know about hail they do not know what are the considerations which lead the court to grant hail, so they do not know what to say for themselves.

While bail and legal aid, as it were, intertwine—while one wants people to get bail and one wants them to get legal aid —the one thing more than anything else that we ought to try to do is to get legal aid for bail. The Government have been very generous in the last Amendment which they moved. I do not propose to pursue this to-night. But I would leave the matter with this thought. Look at the funny position we are now in! The Amendment which the Government have themselves just moved (and which we warmly applaud) says that it is wrong that criminals—and they are criminals, serious criminals, because they have been convicted and found guilty and are liable to be sent to prison—should be sent to prison for the first time, unrepresented. Yet, in answer to this clause they are saying that it is quite all right for innocent people and for people who, although they may have done something minor, are not going to be sent to prison, to be sent to prison before they have been convicted, and for the first time.

Surely this is most extraordinary. If we want to cut down on the numbers of people sent to prison because, although they ought to be represented, they have not been represented, the first class of people to benefit from this ought, I should have thought, to be the 2,000 to 3,000 innocent people a year who are sent straight off to prison before conviction or trial and the 20,000 who, although they are going to be convicted, are not to be found to have done something which necessitates a prison sentence. For these reasons, having given way to this extent—as I suppose sometimes happens where one gives way on one thing—it seems illogical that the Government should say that it cannot be right to let this state of affairs continue that criminals should be sent to prison for the first time without anyone being able to say something for them—while they go on to say that it is all right for innocent people and people who are not convicted of anything to be sent to prison straight away.

This is the great defect I think. Overcrowding in prisons to-day is caused by the increasing number—increasing all the time—of people who are sent to prison straight away because they are not given bail; and so many of them are not given bail either because they do not ask for it or do not know enough to ask, or because they are unrepresented. Having said that, my Lords, I think I should give the noble Viscount an opportunity to say anything that he wants to say and then ask leave to withdraw the Amendment.

VISCOUNT COLVILLE OF CULROSS

My Lords, I am again grateful to the noble and learned Lord, Lord Gardiner, and particularly for the fact that he has reminded the House, which I did not, that the previous Amendment applied to first time in prison. I am afraid that in trying to shorten my speech I failed to make that point; but it is the fact. I entirely understand what the noble and learned Lord is saying, but when we go back to the question of bail it does not necessarily follow that the full apparatus of legal aid is necessary to answer all the way through. I can conceive that the Working Party on bail might discover other means than the Legal Aid Scheme in its present form whereby the type of person to whom the noble and learned Lord was referring could be helped in his application for bail, be it by duty solicitors in Bristol or some other means which the Working Party may suggest. So I do not think that I am being inconsistent. I can legitimately, in connection with this Bill, recommend to the House that where we have someone who has been convicted, or who is liable to be convicted and, if so, liable to be sent to prison for the first time, he should be legally represented. But this is something which is not at the moment under active consideration by the Working Party.

On the other hand, no more is the rest of the legal aid situation, and the criteria which the noble and learned Lord himself has put into this Amendment, the rest of the Widgery criteria, will also be commended to courts as part of the advice given to them about how this Bill works. We shall have to say something now about the new clause and how it reinforces the Widgery criteria, and this again will be brought to the attention of the courts. This is a further opportunity for them to consider, under these criteria, matters which are not specifically spelt out in the Bill. But when we are on the question of hail I maintain the same position—and I think that the noble and learned Lord, Lord Stow Hill, was on the same point—that we ought not to try to legislate on it in advance. It may appear superficially inconsistent, hut I think I should be inconsistent if I now gave way on bail matters when I did not give way on the full-blown clause on bail. That is the explanation for noble Lords opposite who want it, and I think it makes some sense.

LORD GARDINER

My Lords, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.54 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 24

After Clause 39, insert the following new clause:

Remand in custody by magistrates' courts

".—(1) Subject to the provisions of this section, where a person is charged before a magistrates' court with an indictable offence then except in a case where it is also a summary offence and he has pleaded to the charge, the period for which he may be remanded by the court in custody shall be any period up to three weeks (instead of a maximum period of eight clear days as provided, with certain exceptions, by section 105(4) of the Magistrates' Courts Act 1952); and in this section "summary offence" and "indictable offence" have the meanings given to those expressions by section 125 of that Act.

(2) Nothing in this section prejudices any power of remand exercisable under the proviso to section 105(4) of the said Act of 1952; but where the proviso does not permit a remand for a period longer than eight clear days, the power under subsection (1) of this section to remand for any such period shall be exercisable only if the person charged is represented by counsel or a solicitor and he consents to be so remanded or if the court considers, having regard to his physical or mental condition, that his consent ought to be dispensed with."

The noble Viscount said: My Lords, here I walk into a great deal of trouble, because on the Committee stage the noble Lord, Lord Foot, moved an Amendment which, in effect, would have done what this new clause does. It was discussed by a number of noble Lords and eventually the unanimous feeling of the Committee, as I interpreted it, was that it was a very good thing, subject to putting in some safeguards which we agreed about. I therefore said to the noble Lord, Lord Foot, and to the Committee, that if the Amendment was withdrawn I would get it re-drafted in such a way as to incorporate all the necessary safeguards and put it down for this stage of the Bill.

I think I said at the time that it was a matter on which the arguments both ways were fairly evenly balanced. There are advantages for many people of the sort that the noble Lord, Lord Foot, then described; there could be disadvantages to other people of the sort that I think the noble and learned Lord, Lord Gardiner, is about to describe—because since this happened I have had a very long letter from the noble and learned Lord in which he expresses a rooted objection to this matter.

It seems to me, therefore, that the best thing for me to do is to produce the clause which does what the House in Committee appeared to think was right, and I will say very little more by way of justifying it save for this. I have invited all noble Lords on this side of the House (I am sorry that at the moment they have not all come back to the Chamber) to make up their minds on this; and that applies to noble Lords on the Front Bench as well as on the Back Benches. I have absolutely no position to take up on this, I am perfectly happy to abide by the decision of the House one way or the other. It is an important point and the arguments are evenly balanced. What I should now like is to hear them, and I should like other noble Lords to hear them. I know them fairly well, but the rest of the House does not, and I think perhaps the protagonists on both sides will put them very accurately. With that somewhat unusual introduction, my Lords, I beg to move the Amendment.

LORD FOOT

I was anticipating—

LORD GARDINER

My Lords, if the noble Lord, Lord Foot, wants to speak after me I think that he should be entitled to do so, because on Report he can speak only once.

VISCOUNT COLVILLE OF CULROSS

My Lords, I think, with respect, that probably it would be right if the noble and learned Lord, Lord Gardiner, were to speak first because we have not previously heard the case against this Amendment.

LORD GARDINER

My Lords, I have given the noble Lord a copy of the letter which I wrote to the noble Viscount, because that seemed right. When I heard the noble Lord, Lord Foot. he was saying in substance, that all this about remand having to be for no more than eight clear days—that is really nine days —is all a lot of nonsense because there are cases which are not going to be heard for some time. He said that it is almost impossible to get magistrates who have once refused bail not to refuse bail again, and therefore he wants to change this eight days into 21 days. He said, "Look what an awful lot it will save! This nonsense takes up the time of the police and probation officers and magistrates; and, for that matter, solicitors too. Where these people are obviously not going to get bail, what is the good of their coming back every eight days? It is a waste of everybody's time."

I thought that that sounded reasonable, and then the noble Viscount said he had waited to hear what we were going to say from these Benches, and we had not said anything. I think that the noble Lord, Lord Donaldson of Kingsbridge, said something prima facie in support of the noble Lord, Lord Foot; but nobody else said anything. The noble Viscount then said he would think about it. Having been into this matter, in particular with the Howard League, I think the first thing we have to get right are the facts. They are a little detailed and so I hope that I shall be forgiven if I read them.

Lord Foot's argument revolves entirely around persons committed to the higher courts for trial; indeed he decided on the three-week period because he believes (column 355) that this is the minimum period which elapses between the first remand and committal. So the first point is that the vast majority of untried persons who are remanded in custody by magistrates are ultimately tried summarily, and not in the higher courts. A survey in Holloway prison in 1967 showed that of the untried prisoners, 72 per cent. were tried summarily (Dell, New Law Journal, 11/5/72). Figures since published by the Home Office for 1969 and 1970 show the same: over 70 per cent. of persons held in custody untried are later tried in the lower courts (Hansard, Vol. 839/40, July 3, Written Answers cols. 14–22). The Holloway survey showed that the majority of untried prisoners tried summarily did not spend more than eight "clear days" in custody, and a Home Office survey of 1958 had shown the same (Time Spent awaiting Trial, H.M.S.O. 1960, Table 24). But the effect of Lord Foot's Amendment will be to expose these prisoners to the risk of being remanded in custody for three weeks at a time. The prison population could be increased in this way. hardly a desirable result—particularly in view of the way the untried population has been increasing in the last few years.

Although the 20-day period proposed is the maximum, experience shows that it is the maximum which tends most frequently to be used. Whether the remand is before or after conviction, it is always most convenient to those other than the prisoner—police, solicitors, probation officers, prison doctors—for the remand to be for the longest permissible period, and it is these authorities, not the prisoner, that influence court procedure. The maximum period of custodial remand for medical and social reports is three weeks (S. 14 and 26 of the M.C.A. 1952) and this is the period commonly used by the courts for such remands. Yet the business of medical examination and reporting does not take anything like this time. The Home Office is now seeking by circular to persuade courts to remand medical cases for two weeks instead of the permissible three (Hansard, Vol. 838, June 7, col. 658). What irony; on the one hand the Home Office is trying to persuade courts not to use the three-week maximum period that is permissible for medical cases (a relatively small proportion of all remands), and on the other hand proposing to extend this three-week period so that it will cover the most numerous category of remand prisoners, the untried. Lord Foot says that he would not be proposing the Amendment if he thought that the eight-day remand period in practice provided a real safeguard. But he says it is an illusory safeguard because: It is almost impossible, in my experience, once a court of magistrates has refused a man bail and remanded him for eight days, to get the same court to reverse that decision… Whatever his experience, Lord Foot is wrong on this point. It is not at all uncommon for magistrates who have remanded a defendant in custody at one hearing to allow bail subsequently. In the Holloway sample of 1967, of 58 remand prisoners who were later tried in the higher courts, 25 were granted bail either before or on committal; that is, almost 45 per cent. of prisoners who were initially remanded in custody were subsequently allowed bail. In the 1958 Home Office survey, it was found that of 414 persons who were remanded in custody before being committed for trial 72 (17 per cent.) were released on bail for further remands, and were then committed on bail, and another 45 (11 per cent.) were committed on bail: so that in 27 per cent. of the cases where a court of magistrates initially decided that custody was necessary, they subsequently changed their minds in the defendant's favour (Table 17).

Where cases are tried summarily and more than one period of remand is required, it is also common for magistrates to revise their view about the suitability of bail. The only figures on this seem to be those of the 1958 Home Office survey. Table 25 shows a sample of 339 persons who were tried summarily, and spent some or all of their remand period in custody: 282 were in custody all of the time (for an average period of 10 days) and 57 spent some of the time in custody and the rest on bail. So at least 17 per cent. of those remanded in custody untried were subsequently bailed for the hearing. This, however, is not the true proportion, for the great majority of the 228 who were in custody all the time would have been remanded once only, and tried on their reappearance: they would therefore not have been eligible for release on bail on a subsequent remand. Making the unfavourable supposition that half of the 282 were remanded twice (it seems certain that the true figure must be considerably smaller) it appears that of 198 prisoners who were remanded in custody once and then were remanded again, 57, 29 per cent., were subsequently granted bail by the magistrates. This figure seems to represent a minimum of the cases tried summarily in which the court reversed its previous decision. Thus both from the figures of cases that later went for trial (upon which Lord Foot relied) and those that were tried summarily (which Lord Foot ignores) there is real evidence that magistrates' courts do in a substantial number of cases reverse their original decision to remand in custody. The 8 day reappearance gives a real, not an illusory, safeguard to the defendant.

Lord Foot proposes two safeguards with his Amendment: that no one could be remanded for longer than 8 days if he was not represented, and also that he could not be so remanded if he objected. These safeguards are inadequate. Admittedly, at the present time, the former would mean that most summary cases would be unaffected by the new proposals, for the majority of defendants are unrepresented in the lower courts. But one hopes that this situation will change.

Where the defendant is represented, it will often suit the solicitor to have 3 weeks remand at a time, particularly where the court appearance involves him in a journey. Like the police, probation officers and everyone else, solicitors prefer to have more, rather than less time, in which to accomplish a given task. If the police propose a three week remand, it will often be convenient for the solicitor to agree. But the overriding consideration should be the liberty of the prisoner, and not the convenience of the solicitor. A major objection to the proposed safeguard is that it puts these two elements in the case into conflict, and thereby puts the prisoner, in particular, into an impossible position. If the solicitor tells the prisoner that the case requires 2 or 3 weeks' preparation, the prisoner can hardly oppose it: he does not want a fight with his solicitor, and in any case he will usually believe that the solicitor is experienced and knows best. (People are persuaded to plead guilty, against their own convictions, by solicitors in this way.) So if the court asks if the defendant has any objection to a 3 week remand, his consent is likely to have a hollow ring. How many prisoners, given a free choice, would choose to be imprisoned for 20 days, rather than have the chance of attaining liberty after 8 days—if they were told that their chances of release were as high as the previous paragraph shows them to be?

The 8 day maximum remand period provides a foundation for our system of justice and ensures that the imprisonment of untried persons is subject to frequent and public review. As paragraph 5 showed, this review is in a substantial number of cases favourable to the defendant. It may be in the interests of police, solicitors, courts and prisons to extend the period for which an untried person can be imprisoned, but it will rarely be in the interests of that person himself. There may be some such cases—especially where the remand prisons are a long way from court, and where there appears to be little chance of magistrates granting bail—but they are a tiny majority of all the thousands of cases subject to the 8 day rule and benefiting from it. The Amendment has been put forward with a view to saving the authorities time and money. Alternative ways of doing this could usefully be explored—for instance the use of a special escort service. But there is no justification for abolishing the 8 day rule, risking an increase in the prison population, and eroding a valuable civil liberty.

No doubt there are cases—murder charges, for example—where obviously a man is not going to be granted bail. He will have to be tried at the Crown Court, and it is a great waste of time jf he has to appear every week. But these are the minority of cases. This is really a great safeguard to the ordinary citizen, and I have ventured to trouble the House in order to get it on the Record, with a statement of the detailed facts. We ought, in my submission, to be very careful where a cause is proposed which will be so manifestly convenient to everybody except the person who is being charged with a criminal offence. It would clearly be an advantage to solicitors, who always like to have more time—"Three weeks: good! Then we need not do anything about it for the time being."It will be convenient to the police, to the prisoner's escort and to everybody. But this will seriously affect the rights of the individual. I would urge your Lordships not to accept the Amendment.

7.9 p.m.

LORD FOOT

My Lords, it was rightly said by the noble and learned Lord, Lord Gardiner, at the beginning of his speech that at the Committee stage my Amendment—which is reproduced in the noble Viscount's Amendment now—received very little discussion, probably because noble Lords were not prepared for it. The only person who, in my recollection, expressed any misgivings about it was the noble Baroness, Lady Birk. As the noble Viscount, Lord Colville of Culross has said it appeared to him, and certainly it appeared to me, that on that occasion the watchdogs of liberty in this House were not barking. But since then the noble and learned Lord, Lord Gardiner, has given this matter his attention and his scrutiny. I welcome the fact that we are discussing this matter again to-night. I think it is one of the great benefits of our procedures in this House, and indeed in the other place, that if something comes up for the first time in Committee and we do not have the opportunity of considering it properly we have the advantage of being able to have second thoughts. I should like to express my gratitude to the noble and learned Lord, Lord Gardiner, for having given this matter his attention, because anything that he says about it must carry great weight with the House.

I do not complain in any way of the noble Viscount, Lord Colville, having taken a neutral attitude on behalf of the Government and making this a free vote. Indeed, it is a refreshing experience, especially after what we have been going through with the European Communities Bill, to have a free vote in this House. I must say that the outcome of the vote is a bit "dicey" because if one looks around at the number of persons who are listening to the argument what the ultimate outcome will be seems rather hazardous, because of course I am obliged to carry this Amendment to a Division.

Having said that, I should like to try to identify and isolate the areas of agreement. The first thing that can be agreed is this : whatever else is said about this Amendment, it will result in a very considerable administrative saving. The noble Viscount, Lord Colville, in the debate in Committee said: I should like to respond to the suggestion of the noble Lord, Lord Foot, in this way. I am immensely attracted to the administrative saving. Nothing could be more agreeable to Government than to do what the noble Lord said and save the time of the police, the courts and the prison service, and a great deal of money, too, in this way; provided that we have the right safeguards."—[OFFICIAL REPORT, 2/8/72; col. 3591) So I do not think there can be any dispute —and indeed the noble and learned Lord has confirmed this—that it will be to the benefit of magistrates, solicitors, the police and so on.

The second matter so far on which I find myself in entire agreement with the noble and learned Lord is in his approach to the problem. I share his view and I hope I made this clear before, but I certainly want to make it clear now—that whatever administrative saving might be achieved by this Amendment, if in fact it resulted in removing a valuable protection and safeguard for the untried person who is in custody, then that administrative saving would be much too high a price to pay. Therefore I think that the approach of the noble and learned Lord to this problem is the same as my own.

There is a third point upon which I would hope the noble and learned Lord would agree with me, too. That is this: whatever else may be said, there can be no doubt that every day in the magistrates' courts of this land people are brought from prison for an appearance before the magistrates, and everybody knows that the appearance is going to be an absolute formality, either because the person is not going to ask for bail or because he has not the slightest hope of getting bail and therefore is not going to apply for it. I hope the noble and learned Lord will agree with me that in those cases where the prospects of bail are non-existent and where there is no application for it, it is an absolute waste of time and the only result is to submit the prisoner to what can only be described as an humiliating exercise. Those are the cases with which this Amendment was intended to deal.

I suggest there is a danger that when we are talking about this sort of case we may be deluding ourselves by using fine words and fine phrases. Somewhere in the memorandum or in the brief—I am not quite sure what the noble and learned Lord was reading from—or perhaps in the letter he had received from the noble Viscount, Lord Colville, it was said that the value of the eight-day maximum remand in custody is that it ensures that the cases of persons who are on remand are kept under frequent and public review. In the cases to which I have referred, where the whole thing is an absolute formality, all that happens is that the prisoner is brought from the prison, goes into the dock, and the police get up and ask for a further period of remand in custody for eight days. The prisoner is asked whether he has any reason to oppose that, and he says "No". Then the remand is made: the prisoner goes down below and is sent back to the prison from which he came. In all those cases there is no review, and talking about "a public review of the case" is a misuse of words. All that has happened is that a prisoner is put on view for a matter of thirty seconds or one minute; and the whole ritual that we go through in these cases is of no benefit to anybody, and certainly not to the prisoner himself.

It was those cases we were concerned with when we put down this Amendment; and it was to those cases that we were directing ourselves. What we wanted to do was to devise some process by which there could be an end of this ritual production of prisoners to no purpose. We never had any intention —and I shall try to argue in a minute that the effect of our Amendment is not to do this—of prolonging for even one day the time that a prisoner spends in prison, in custody, on remand. I should like to demonstrate to the satisfaction of the House and, I hope, to the satisfaction of the noble and learned Lord that when he thinks we are trying to do that in this Amendment he is mistaken. We realised at the outset of course—those who assisted me in the framing of this —that it was essential, if one is going to make it possible in certain circumstance,, for the remand period to be extended to twenty-one days, to have every proper safeguard against abuse. Therefore the safeguards we, proposed—and these were the ones I mentioned in Committee and which the noble and learned Viscount has incorporated in his amended Amendment—were, first, that there must be the consent of the accused. If he refuses and says "No, I do not want to be sent away for twenty-one days: I want eight days only", that should be an absolute veto and the magistrate should have no power whatever to send him away for longer than eight days. Then we asked ourselves whether that was sufficient. It may be that the person, particularly if he is unrepresented, does not know what his rights are and may not understand what it means when he consents to be remanded. So we said, "No, it is not sufficient and a mistake could be made. He might not understand what his rights and position are." So we said that there must be a further safeguard, which was that he should be represented either by a solicitor or by a barrister. So these were the two safeguards that we wanted.

The substance of the argument in this House now seems to be: does the Amendment as it now stands (with the changes incorporated in it) achieve the purpose that we had in mind—which is first of all to eliminate these unnecessary appearances of the prisoner before a magistrates' court? At the same time, does it do that without increasing the periods for which people are held in detention before trial? The noble and learned Lord, Lord Gardiner, thinks that it does all these things. I do not think it does; and I suggest that the essential question is this: what benefit do the eight days confer upon the individual concerned? What is the advantage to him of being able to come back after eight days? What can he do when he comes before the magistrates in that way? All he can do is to apply or re-apply for bail. That is the only matter which at that stage the magistrates are reviewing; they are reviewing whether he should continue to be kept in custody or not.

May I say this by way of parenthesis —and the noble and learned Lord pointed out—quite rightly—that I overstated this matter when I was speaking in Committee. He was quite right in saying that I said then that from my experience my impression was that once a bench of magistrates had refused somebody bail it was almost impossible to get bail on some subsequent occasion from that same set of magistrates. I apologise to the House for that: it was, at worst, a mistake, and at best, an overstatement. I fully accept the figures the noble and learned Lord quoted as to the number of occasions when bail is granted by a bench of magistrates after a previous refusal. I readily accept those figures. In my submission my error on that occasion does not affect the argument, and it does not affect the question which we have to answer.

May I put my argument to the House in this way: would your Lordships consider what the situation would be if this Amendment became law and a person went into court and an application was made for his remand in custody? If the magistrates are minded for any reason to remand him for more than eight days and up to 21 days, they can do it only with his consent and also if he is represented. The effect of giving his consent will be that he will not have the opportunity of re-applying for bail for three weeks instead of eight days. What is going to be the determining factor in that man's decision as to whether he is going to consent to an extended remand? The determining factor is going to be this: what does he think are his chances of getting bail on the next occasion that he appears? If he thinks that there is any reasonable chance he will almost certainly say, "I want to be remanded for eight days because I want to renew my application for bail at the earliest date". That is the accused's decision as to whether he consents or not. He makes the decision if he is represented—as he must be—with the assistance of his legal adviser.

The solicitor in those circumstances—and here I can speak with some small authority because I have spent all my life in this work—is in a particularly suitable position to advise the man upon this question of bail and what his prospects are of getting bail next time. If the man has already applied for the first time for bail he will know by that time what grounds of objection are advanced by the police, or the prosecution, against the granting of bail. He will often be able to judge what the prospects are of getting bail on some future application if it has been refused on that occasion.

At one extreme we get the case of the housebreaker who has a long string of previous convictions of the same kind, where one knows that the chances of getting bail on the next occasion are remote, if not non-existent. By way of illustration of the case where one has an idea that one may get bail, may I quote a case in which I was involved between the Committee stage and this occasion? I was appearing for a young man charged with unlawfully handling stolen goods. I tried to get bail for him but was turned down by the magistrates because the police objected. The main objection of the police to bail on that occasion was that they had to pursue further inquiries, possibly into other goods that he might have received. On that occasion one could see clearly that in a week's time (if by then the inquiries of the police were complete) there was every possibility that the man would be able to get bail. Eight days later the police did not oppose bail at all. I give those examples as illustrations that at that stage of the proceedings, a man, with the advice of his solicitors, can form a very good view as to whether it is worth his while to try to get bail in eight days' time, or whethter the whole situation is quite hopeless, in which case he may not want to be brought down from the prison uselessly.

The noble and learned Lord, in the memorandum, said that the necessity for the consent of the prisoner to the 21 day remand was an unrealistic protection because the solicitor might be considering his own convenience. I will not make any comment upon the implication of that reflection upon my profession. But when the noble and learned Lord sought an instance of the type of occasion on which a solicitor could try to prevail upon a man to be incarcerated for a period of three weeks rather than a week he lit upon an illustration which I suggest does not really bear examination. He took the example of the solicitor who had come to the conclusion that the case would take two or three weeks' preparation and that in those circumstances the solicitor might want to try to prevail upon the client to accept three weeks' imprisonment because that would be the time necessary for the preparation of the case.

The question of how long it will take to prepare a case is very relevant to the date which is eventually going to be fixed for the trial, but it is utterly irrelevant to the question as to whether it is in the man's interest to make another application for bail in eight days' time. The two things are not connected in any way. The only way in which I can think that a solicitor might advise a client to voluntarily incarcerate himself for three weeks rather than a week would be if the solicitor did not want to be put to the inconvenience of going to the court eight days later in order to renew his client's application for bail.

I do not know what view the noble and learned Lord takes of my profession, but I invite the House to consider whether any solicitor is going to invite a man, or try to bring pressure upon him, to surrender his rights and go into prison for three weeks for no better reason than that the solicitor does not want to turn up a week later for ten minutes. If the noble and learned Lord takes the view that solicitors might behave in that way, I would ask this question: do members of the Bar behave in that way? Would any member of the Bar invite his client to go into voluntary incarceration for three weeks because the members of the Bar did not want to turn up to renew the application a week later?

Another analogy that the noble Lord sought to draw, I think in the letter he wrote to the noble Lord, was this. He said solicitors do sometimes over-persuade their clients; they over-persuade them sometimes to plead guilty; or sometimes they advise them to plead guilty when they should not plead guilty. I suggest that that is quite another matter, because when a solicitor or barrister is advising a client as to whether or not he should plead guilty to a charge, what he is presumably doing to the best of his ability (and, of course, we all make mistakes) is trying to decide what is the plea which is in the best interests of the client. He may be wrong; he may be right, but that is what he is doing. But when he is called upon to advise a client as to whether he ought to consent to a three week remand there is nothing to be gained for the client by advising him to consent to that—nothing whatever. Therefore, the solicitor or barrister can have no conceivable interest in trying to bring pressure to bear upon the individual to forgo his eight-day right.

Then the noble and learned Lord made another analogy which I suggest is equally false. He said that it is commonly recognised that where you set up a maximum period, that tends to become the minimum. He gave as an illustration the remands under Sections 12 and 26 (I think it is) of the Magistrates' Courts Act 1952. Those are remands for medical reports and social security reports. In that case, of course, magistrates are empowered to remand somebody in custody up to three weeks. He rightly points out that unfortunately far too many Benches take the maximum period. I quite agree. But there is no analogy between that case and the situation that would prevail under this Amendment, because in that case the magistrates have an absolute discretion up to three weeks; but in this case, under our Amendment, they have not a discretion at all because the individual himself can say, "No; I am not going to have it. I am only going to be remanded for eight days." So I suggest that there is not any analogy there. There is a letter in to-day's Times from a Mr. Tom Harper, whom I take to be at the Bar, which makes exactly the same error. He wrote in this letter, among other things: The practical result of the amendment would be to take away from the courts the opportunity to review custodial orders every eight days and enable them to do so only every 20 days, for while the 20-day period is expressed as being a maximum, it is on past experience beyond doubt that 20 days will in practice become the minimum in most cases. This letter makes no reference whatever to the fact that there is a built-in safeguard whereby one can be remanded for more than eight days only with the express consent of the accused.

Before I finish, may I deal with one point of detail for the noble Viscount, Lord Colvilleo f Culross? At the very end of subsection (2) he has inserted some words which were certainly not proposed by me. The words are as follows: if the person charged is represented by counsel or a solicitor and he consents to be so remanded or if the court considers, having regard to his physical or mental condition, that his consent ought not to be dispensed with"—

VISCOUNT COLVILLE OF CULROSS

"Ought to be dispensed with".

LORD FOOT

I beg your Lordships' pardon—" ought to be dispensed with ". I did not suggest that and I do not think it is right. If there is any doubt as to whether a person is in a fit physical and mental condition to give a consent or not, then that doubt ought to be resolved in his favour and it ought to be found that he does not give his consent. If I was so fortunate as to get this Amendment through this evening, I would propose to move an Amendment at a later stage in order to delete or to alter the sense of those latter words; but that is only a point of detail.

My Lords, I am sorry to have addressed the House for so long, but it is not often one has the chance of speaking when what one says might make some difference. I have therefore indulged myself a little to-night, but I hope I shall be forgiven. May I conclude by summarising the matter in this way. Under my proposal, no one who is unrepresented before a Bench of magistrates when a bail question arises is at any risk whatever. No one can be remanded for longer than eight days unless he consents, and he is under no obligation to give reasons why he refuses. He has an absolute veto which he exercises himself with the assistance of his legal adviser. He has that assistance of the legal adviser who in these particular circumstances has nothing whatever to gain, nothing reputable at any rate to gain, by over-persuading the man to surrender his right to an eight-day remand. For all those reasons, I believe that the apprehensions which have been expressed by the noble and learned Lord are unfounded, and that this Amendment, while it would eliminate many wasteful practices and a lot of humiliating appearances and unnecessary appearances by people in custody before the courts, would at the same time not add a single day to the time that people spend in custody awaiting trial.

7.36 p.m.

LORD DONALDSON OF KINGS-BRIDGE

My Lords, very regretfully I have to withdraw the support I gave to the noble Lord, Lord Foot, on Committee. It is a very near thing. I feel very strongly indeed about the enormous inconvenience, particularly in local prisons, not only to staff but also to the prisoners themselves; and one of the reasons why local prisons are such extraordinarily unhappy places is the instability caused by these constant moves. The noble Lord has not entirely satisfied me that the case of my noble and learned friend Lord Gardiner is wrong, and so long as there is any doubt about the safeguards of the liberty of the subject one must proceed with total caution. If Lord Foot were my solicitor and were the solicitor to every prisoner I should feel much happier than I do now, but anybody who has had anything to do with prisoners knows that, whether their solicitors are good or bad, they always

think they are bad after they have been convicted and the relationship between the prisoner and his solicitor is almost always a very difficult one. I feel that busy solicitors with half a dozen cases which seem fairly hopeless must be under a pressure to say, "Well, there is very little chance of the chap getting anything. Three weeks will be best." I am not going to argue this issue at length. We have heard the arguments put fully. We have to make a judgment, and my judgment is "thumbs down" to the noble Lord, Lord Foot, although I am sorry to say so.

VISCOUNT COLVILLE OF CULROSS

My Lords, I want to say just one word about the detailed matter which the noble Lord, Lord Foot, raised on the final words of this provision. The point of this, for better or for worse, was that there are cases—and they are, when they occur, very distressing—where somebody is mentally ill. There have been cases, for instance, where the person just stood mute, incapable of taking in what was going on and incapable of saying anything one way or the other, and where it was perfectly obvious that, if for no other reason than medical grounds, he or she would have to go on being remanded. It was to deal with a situation of that kind that these words were inserted. But this again is a matter of judgment.

LORD FOOT

My Lords, if there is a case where a person is so medically, or possibly mentally, unwell that he does not appear capable of giving a coherent answer, is there not an argument for keeping that case under review by bringing that person back at the end of eight days, rather than letting him be sent away for 21 days?

VISCOUNT COLVILLE OF CULROSS

My Lords, it was to be combined with legal representation; but I do not wish to pursue this further.

7.40 p.m.

On Question, Whether the said Amendment (No. 24) shall be agreed to?

Their Lordships divided: Contents, 6: Not-Contents, 45.

CONTENTS
Blyton, L.	Foot, L. [Teller.]	Maelor, L.
Colville of Culross, V. [Teller.]	Hacking, L.	Wade, L.
NOT-CONTENTS
Auckland, L.	Grimston of Westbury, L.	Rankeillour, L.
Balerno, L.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	St. Just, L.
Balfour, E.		Sandford, L.
Belhaven and Stenton, L.	Henderson, L.	Sempill, Ly.
Champion, L.	Hoy, L.	Simon of Glaisdale, L.
Cork and Orrery, E.	Hylton-Foster, B.	Slater, L.
Craigmyle, L.	Jacques, L. [Teller.]	Stow Hill, L.
Denham, L.	Latymer, L.	Strabolgi, L. [Teller.]
Donaldson of Kingsbridge, L.	Limerick, E.	Strange, L.
Drumalbyn, L.	Lindsey and Abingdon, E.	Strathclyde, L.
Eccles, V.	Lothian, M.	Swansea. L.
Elles, B.	Lyell, L.	Taylor of Mansfield, L.
Emmet of Amberley, B.	Monck, V.	Wootton of Abinger, B.
Gainford, L.	Mowbray and Stourton, L.	Wynne-Jones, L.
Gardiner, L.	Phillips, B.	Young, B.
Gowrie, E.

On Question, Amendment agreed to.

7.48 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 25:

After Clause 44, insert the following new clause:

Summary trial of certain offences of arson

" . In Schedule 1 to the Magistrates' Courts Act 1952 (indictable offences triable summarily with the consent of the accused when adult) for paragraph 2 there shall be substituted the following paragraph. in lieu of that substituted by section 7(1) of the Criminal Damage Act 1971:—

" 2. Offences under section 1(1) or section 1(1) and (3) of the Criminal Damage Act 1971 or under section 2 or 3 of that Act "."

The noble Viscount said: My Lords, this Amendment carries out the original intention of I believe everybody under the Criminal Damage Act. That intention was that there should be retained a summary offence of arson for the very small cases. Arson can, of course, be a very serious crime indeed, but it was never intended that all cases which might be described and would have to be charged as arson should be tried on indictment. Unfortunately, the drafting of the Bill has proved to be incorrect in this respect, because in the case of R. v. Aylesbury Crown Court, ex parte Simons which was recently dealt with by the Divisional Court and was reported yesterday, it has been held that one cannot, under the Criminal Damage Act, prosecute somebody summarily for arson. We think that the situation as it was always intended to be should be restored and that there are some small cases which do not need to go to trial on indictment. That is the purpose of this Amendment and Amendment No. 42. I beg to move.

Clause 63 [Citation interpretation, commencement and extent]:

7.51 p.m.

VISCOUNT COLVILLE OF CULROSS

My Lords, this is a drafting Amendment. I beg to move.

Amendment moved— Page 40, line 15, leave out ("sentenced") and insert ("sentence ").—(Viscount Colville of Citlross.)

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 28:

Page 40, line 32, at end insert: ("Provided that—

1. (a)sections 28, 30. 31 and (Increase of Maxi MUM punishment under section 27(1) of the Housing Act 1957) shall not affect the punishment for an offence completed before those sections come into force; and
2. (b)neither section 35 nor the corresponding section referred to in section 60(3) shall come into force until provision has been made by rules of court with a view to preventing or restricting the disclosure of the identity of the acquitted person in references under that section.")

The noble Viscount said: My Lords, this Amendment relates to certain matters which we have already discussed. Para-graph (a) of this new proviso avoids the increases in penalties being retrospective. Paragraph (b)is important because it deals with the rules of court to which I have already referred and about which we divided. The noble and learned Lord, Lord Gardiner, was rather scathing in his remarks about the use of the word "restricted". The point of inserting a provision to allow the rules to restrict disclosure is that if somebody asks to have his case publicised, despite the fact that he has been acquitted, he should not be altogether prevented from doing so. In other words, if he wishes to give his consent to publicity—there are such cases where it is a matter of principle—. we do not want to preclude the rules from enabling a case to be publicised. That is the sole purpose of this Amendment and there is nothing sinister about it. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, Amendment No. 29 is consequential and drafting. I beg to move.

Amendment moved— Page 40, line 34, at end insert (" section 31 so far as it relates to section 67(5) of the Shops Act 1950.").—(Viscount Colville 0f Culross.)

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 30: Page 41, line 6, at end insert ("and").

The noble Viscount said: My Lords, I suggest it would be convenient to discuss together with this Amendment Amendments Nos. 31, 32 and 33. These are all part of the criminal bankruptcy matter to which I referred in connection with Amendment No. 6. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I beg to move Amendment No. 31:

Amendment moved— Page 41, line 6. at end insert ("and"). Colville of Culross.)

VISCOUNT COLVILLE OF CULROSS

My Lords, I beg to move Amendment No. 32:

Amendment moved— Page 42, line 34, leave out paragraphs 8 to 11.—(Viscount Colville of Culross.)

VISCOUNT COLVILLE OF CULROSS

My Lords, I beg to move Amendment No. 33:

Amendment moved— Page 44, line 39, after ("bankruptcy") insert ("and no order shall be made by the High Court under section (Recovery of assets for criminal bankrupt's estate) of this Act". —(Viscount Colville of Culross.)

7.55 p.m.

Schedule 2 [Ineligibility and Disqualification for and Excusal from Jury Service]:

LORD SIMON OF GLAISDALE moved Amendment No. 34: Page 46, line 17, at end insert— (" Active Elder Brethren of the Corporation of Trinity House of Deptford Strond.")

The noble and learned Lord said: My Lords, the object of this Amendment is to put the active Elder Brethren of Trinity House as nautical assessors to the Admiralty Court in the place where they obviously belong; namely, the group of "Others concerned with the administration of justice." The Admiralty Court at the moment is part of the Queen's Bench Division, although in my time it was part of the Probate, Divorce and Admiralty Division. I move this Amendment with the approbation and support of my noble and learned friend the Lord Chief Justice, who has had to leave our proceedings.

The Amendment is limited to active Elder Brethren because there are a number of honorary and retired Elder Brethren who do not act as nautical assessors. As your Lordships will know, a number of very important functions performed by Trinity House are directed by the Elder Brethren. They are the pilotage authority for the Port of London and are therefore responsible for the safety of navigation, the licensing of pilots and so on in the Port of London with its immense shipping traffic. They are the lighthouse and lightship authority for the British Isles, and in addition—this function is relevant to the Amendment—they sit as nautical assessors to Admiralty Courts, both at first instance and on appeal.

There are only ten Active Elder Brethren, and to show the pressure on them, apart from a recital of the other functions I have laid before your Lordships, I need only mention that there are ten cases listed for the coming term in which nautical assessors will be required. Many of those cases will require two nautical assessors sitting with the judge and in some cases they will be sitting in the Court of Appeal at the same time as the Judge of first instance is trying some other case with some other nautical assessor. Your Lordships will see that there would be a strong case for including the Elder Brethren in Part III of the Schedule, persons who are exempt; but I do not ask your Lordships to approach the matter in that way. At present the whole of the pilotage service is exempt from jury service—not only the Elder Brethren but the pilots themselves and the whole of the staff of Trinity House.

The Morris Committee on the Constitution of Juries for Trial realised that the present position was quite anomalous, and I understand that their Report recommended that there should be a new class of persons who were not exempt but who were ineligible for jury service. The ground on which they were made ineligible was that they were so intimately connected with the administration of justice that they might appear to other people to have undue influence with an ordinary lay jury. I understand that that was the philosophy of the Morris Report. If so, it is surely obvious that the Elder Brethren of Trinity House should be in Group B of Part I of this Schedule.

One need only look at a test case. Who is more intimately connected with the administration of justice and who is the one who more fully satisfies the criterion or the Morris Committee—the Elder Brother of Trinity' House, sitting as nautical assessor in the Admiralty Court, or the shorthand writer of the court? I ask the noble Viscount, unless he is prepared to accept this Amendment with alacrity, expressly to address himself to that question. One could make other comparisons. Consider the position of the Elder Brother who sits in court with the judge, who sits in the Court of Appeal with the judge and who sits in the Appellate Committee of your Lordships' House with those of your Lordships who are concerned with judicial matters. Is he more concerned with the administration of justice? Does he satisfy the criterion proposed by Lord Morris of Borth-y-Gest and his Committee, or does a barrister—I take the very first class mentioned in Group B—called to the Bar, say, twenty or thirty years ago, who has never practised? Does the Elder Brother satisfy the test more than a member of a board of prison visitors, retired for nine years, who would appear in Group B, or the cook of a probation hostel, or the typist in a forensic science laboratory? If the matter is decided in that way, not only do the Elder Brethren appear centrally as concerned with the administration of justice, but there are obviously a great many marginal cases here which are well on the other side of the Elder Brethren.

I myself at one time held a very humble post in the Department which the noble Viscount represents in your Lordships' House with such distinction and I have the gravest foreboding as to the sort of brief he may have been given. I fear very much that it starts by saying that this Amendment is put forward at the very last minute and that there may be repercussions which cannot at the moment be envisaged. I shall deal with that in a moment. It will go on, I surmise, to say—

VISCOUNT COLVILLE OF CULROSS

My Lords, may I tell the noble Lord that one thing he does not have to deal with is that argument.

LORD SIMON OF GLAISDALE

I think I am safe in saying that his brief will go on to say that Lord Morris's Committee did not recommend that the Elder Brethren of Trinity House should be Then I suppose it will probably say finally that administrative action can be taken to meet the undoubted case of the Elder Brethren: that it would be quite impossible without disruption of the services which Trinity House gives both forensically and administratively unless they are given exemption; that the Lord Chancellor's Office is now charged with the duty of supervising exemptions and therefore what I venture to propose to your Lordships will be conceded by administrative means.

So far as the recommendations of the Morris Committee are concerned, I say with considerable confidence that I do not believe for a moment that they ever considered the Elder Brethren of Trinity House in this connection at all. I say that for two reasons. If they had considered them they could not have failed to see that they fall well in the middle of the list and satisfy fully the test that the Committee itself proposed. There is a further reason. I myself was President of the Division at the time the Morris Committee was sitting and my noble and learned friend Lord Morris of Borth-y-Gest consulted me about a number of matters affecting jury trials and juries in the Division over which I then presided and I consulted the judges. He never asked me my view at all on how far the Elder Brethren of Trinity House satisfied his test of ineligibility. I am quite certain that he would have asked that if the matter had ever been considered at all, and of course I should have said that the nautical assessors are intimately bound up with the standing and functioning., of the court and would be bound to be ineligible by Lord Morris's own test.

May I say this finally, my Lords? The Admiralty Court is an international court. It attracts business from all over the world. I can remember myself trying a case of a collision which took place in the Kiel Canal between a Danish and a Greek ship. The reason why foreign shipowners bring their business to the English courts is, I am convinced, largely because of the expert and dispassionate advice that the judges of the English Admiralty Court get from the Elder Brethren.

There remains finally the question of repercussions. I have myself been able to think of no other class of persons who are comparable with the Elder Brethren of Trinity House in their capacity as nautical assessors to the Admiralty Court. As I say, they fall well within the test proposed by the Morris Committee. They are far more ineligible than many of those to whom I have drawn your Lordships' attention.

THE EARL OF BALFOUR

My Lords, I should like to say a few words in support of this Amendment. One of the reasons why so many foreign companies come to the United Kingdom to settle any court case is that each word in English law has a distinct and definite meaning. I understand that in many countries this is not the case. Marine law can be quite complicated and these people act as expert advisers on many cases in the course of all sorts of deliberations in the Marine Court. Why, under English law, Admiralty, Probate and Divorce should have been grouped together is one of the delightful mysteries of legislation, but I think that there is a lot in what the noble Lord, Lord Simon of Glaisdale has just said.

8.9 p.m.

VISCOUNT COLVILLE OF CULROSS

My Lords, there must be a very large number of people who do extremely important jobs in this country. I am not for a moment going to enter into the invidious task of saying whether those jobs are more or less important than the advice given by the Elder Brethren of the Corporation of Trinity House of Deptford Strond; but of one thing I am quite certain: were it not for their quasi-judicial functions, this Amendment would be a complete non-starter. I must emphasise this because the whole pattern of the recommendations of the Morris Committee on Jury Service is to get away from the old exemptions from jury service as a matter of right, so that people, be they never so important and never so busy, are as a matter of first instance to be liable to take part in this very important business of serving as jurymen.

It is perfectly true that we have made provision for them to get themselves excused, but they have to get themselves excused for good reasons, and not merely because they happen to occupy a position in some authority which by some historical statutory provision has been hitherto exempt. Practically all the things that the noble and learned Lord, Lord Simon of Glaisdale, has mentioned as being the duties of the active Elder Brethren come, I would suggest to the House, in that category and do not qualify them for any different treatment from the very important other people who under this Bill are now for the first time exposed to being selected for jury service unless they can excuse themselves.

There is, however, one distinction, and that is that they have this judicial function—or, rather, a function which, though not strictly judicial, is very closely connected with the work of the Admiralty Court at all levels, as has been explained. The principle of making sure that people who are even on the edges of the judicial system should not be thought to be involved in the decisions of juries is right, and I would say that on balance this is a case where the noble and learned Lord had made a point which is too powerful to resist, and I therefore suggest to the House that this Amendment be accepted.

LORD SIMON OF GLAISDALE

My Lords, I do not think I can do more than to express first of all my great gratitude, and secondly my shame in appearing so ungracious as to anticipate that the noble Viscount would not accept the Amendment and, indeed, going so far as to smear my old Department in the process. I am very grateful to him.

Schedule 3 [Amendments of enactments relating to costs on appeal]:

VISCOUNT COLVILLE OF CULROSS

My Lords, perhaps it will be convenient, if the House agrees, to take Amendments Nos. 35, 36 and 37 together. They are drafting Amendments to deal with the consolidation of costs in criminal cases legislation, a matter which I am afraid at the moment has got bogged down but will start again next Session. There is nothing of substance in the Amendments but there are words here which ought to be put right for ease of consolidation. I beg to move.

Amendments moved— Page 48, line 35, leave out ("his expenses") and insert ("any expenses properly incurred by him") Page 49, line 12, leave out ("his expenses") and insert ("any expenses properly incurred by him") line 26, at end insert— (" (7) In Schedule 2, paragraph 3 (costs where retrial results in acquittal), for the words "section 1 of the Costs in Criminal Cases Act 1952" substitute "section 47 of the Courts Act 1971" and for "39(2)" substitute "39 "."). —(Viscount Colville of Culross.)

Schedule 5 [Minor and consequential amendments]:

VISCOUNT COLVILLE OF CULROSS

My Lords, Amendment No. 38 is consequential on Amendment No. 11. I beg to move.

Amendment moved— Page 51, line 11, after ("and") insert ("the").—(Viscount Colville of Culross.)

VISCOUNT COLVILLE OF CULROSS

My Lords, Amendment No. 39 is consequential on Amendments Nos. 10 and 11. I beg to move.

Amendment moved— Page 51, line 30, at end insert— (" In section 4(1) of the said Act for the words "for such period not extending beyond twelve months from the date of the order as may be specified therein" there shall be substituted the words "during the whole of the probation period or such part as may be specified in the order. In Schedule 1 to the said Act, in paragraph 3, after the words "sections three and four of this Act" there shall be inserted the words" or of section 19 of the Criminal Justice Act 1972 ".")—(Viscount Colville of Culross.)

8.13 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 40: Page 54, line 35, leave out from second ("the") to end of line 36 and insert ("words from "decides to deal with the case" to the end of the subsection there shall be substituted the words "is of the opinion that the case is one which can properly be dealt with by means of—

1. (a) an order discharging him absolutely or conditionally, or
2. (b) an order for the payment of a tine, or
3. (c) an order requiring his parent or guardian to enter into a recognisance to take proper care of him and exercise proper control over him,

with or without any other order that the court has power to make when absolutely or conditionally discharging an offender ".")

The noble Viscount said: My Lords, this Amendment does need a word of explanation. Under the Children and Young Persons Act 1969 there is a requirement that an adult magistrates' court which finds a juvenile guilty of an offence—this would happen when he was being tried jointly with an older person—has to remit the case to a juvenile court unless it makes one of a number of specified minor orders: that is, absolute or conditional discharge; fine, damages or costs; or an order for the parent or guardian to enter into a recognisance to take proper care or control of the child. But if a court in fact fines a person or discharges him absolutely or conditionally there are a number of other subordinate orders to be made at the same time: for instance, restitution of stolen property or the confiscation of an offensive weapon. At the moment, as the 1969 Act stands, if the court wanted to do one of those things it would have to remit the juvenile. Therefore, in order to enable the senior court to deal comprehensively with the subordinate orders, this Amendment is proposed. It is really a matter of convenience because it would be absurd if you had to send it back just on that particular ground and it would be bad because it might discourage the senior court from confiscating an offensive weapon or ordering restitution of stolen property. I beg to move.

Schedule 6 [Repeals]:

VISCOUNT COLVILLE OF CULROSS

My Lords, Amendment No. 41 is consequential on Amendment No. 11. I beg to move.

Amendment moved— Page 57, line 32, column 3. at end insert— ("In Schedule 1, in paragraph (b) of the proviso to paragraph 3, the words "or to submit to treatment for his mental condition".").—(Viscount Colville of Culross.)

VISCOUNT COLVILLE OF CULROSS

My Lords, Amendment No. 42 is consequential on Amendment No. 25. I beg to move.

Amendment moved— Page 59, line 14, column 3, at beginning insert ("Section 7(1) ").(Viscount Colville of Culross.)

VISCOUNT COLVILLE OF CULROSS

My Lords, Amendment No. 43 is a drafting Amendment. I beg to move.

Amendment moved— Page 59, leave out lines 17 and 18 in column 3 and insert ("23(3) the words "and as being Exchequer moneys", and the same words in paragraph 31(4)").—(Viscount Colville of Culross.)