§ 4.43 p.m.
§ Second Reading debate continued.
§ LORD FOOT
My Lords, after listen-to a grave and tragic report of the kind we have just heard from the noble Viscount, it is always a little difficult to revert to the more pedestrian business on which we were engaged. But possibly my intervention, being very brief, will be of some assistance to the noble Viscount in allowing him a short interval of time as he moves from one subject to another.
I shall be very brief because I am a wholehearted supporter of this Bill and I do not think that the House will be very much concerned to listen to somebody who is such a wholehearted supporter but will no doubt be waiting, first of all to know what the attitude of the Government is towards this Bill and, secondly, to hear the criticisms—if there are going to be any—which will be developed later in the debate.
There are just three things which I should like to say. The first is that the noble and learned Lord, Lord Gardiner, in concluding his presentation of the Bill expressed his thanks to all those who were associated with him and to all those who had given him and his Committee 735 assistance in the preparation of the report and of the Bill. I am sure that it will be the wish of the House that the first person speaking after the noble and learned Lord, Lord Gardiner, should say on behalf of all of us—and I certainly say it for myself—how very grateful we are to him, and to the Committee over which he presided, and which prepared the report which is the basis of this Bill, because, in my humble estimation, this is a major contribution in the field of penal reform. I do not know which to admire more: the good sense and compassion which have inspired this Bill, or the ingenuity of the solution at which they have arrived.
I do not think that there will be very much argument in this House, or anywhere else, about the need for something to be done to deal with the present situation. The noble and learned Lord, Lord Gardiner, referred us to some of those shocking examples which appear in the report of the way in which people commit an offence and are convicted, very often in early youth, then rebuild their lives and, some long time afterwards—it may be years or even decades afterwards—suddenly, possibly by pure accident, the ancient conviction comes to light and may result in public ruin and domestic disaster. As I say, I do not believe that anybody is going to dispute the need for reform, and I suggest that it should be borne in mind. Here I refer to the last example which the noble and learned Lord gave us, of the woman who was convicted of soliciting and has had that fact hanging over her head all these years. The tragedy involved in these cases is not much less for the people who take their secret to the grave, because they live their lives day in, day out, year in, year out, with this shadow over them, never knowing when the bomb that they are carrying about with them is going to explode. Those people live lives of prolonged tragedy and uncertainty. They are the people for whom this Bill also provides, because the object of this Bill is to de-fuse the bomb with the passage of time.
Therefore, I doubt very much whether there will be much argument about the need for something to be done. Where I believe we shall have some dissension or dispute is on whether the method which 736 has been evolved by this Committee and by the noble and learned Lord is indeed the best solution to the problem. My own view, for what it is worth, is that the solution which has been arrived at is at the same time ingenious; it will he effective to achieve the purpose which the sponsors of the Bill have in mind, and—this is the point which I want to emphasise in particular—it seems to me that the solution which has been put forward, the proposal that has been made for trying to cope with this situation, is one which does not in any way conflict with the principles and practices which are part of our legal system and which have been part of our legal system for centuries past.
What is proposed by this Bill—putting it in a couple of sentences—is not (and the noble and learned Lord gave us the reasons for this) that the fact of the conviction should be expunged from the record. What is proposed is simply that after the passage of the rehabilitation period, which may be appropriate to any particular offender, he should be protected by a curtain of silence. It is not an attempt, as the noble and learned Lord said, to make something "unhappen". It is not an attempt to alter the unalterable or deny the undeniable, but simply an attempt to provide that a fact shall not be admissible in evidence simply because it is true.
It does not seem to me that this is in any way repugnant to the practices of our legal system in the past. The noble and learned Lord referred, for example, to the rule of evidence by which we do not admit hearsay evidence. There are various other forms of evidence which are inadmissible, however true they may be. It is inadmissible to put in irrelevant evidence, however true it may be. It is prohibited in the discretion of the judge to admit evidence whose prejudicial effect outweighs its probative value. And, of course, as we all know, in the generality of cases in criminal trials it is not permissible to give any evidence of the accused man's previous convictions. However true all these things may be, we say, "No, it is not right that they should be put forward".
May I consider what is the reason, the philosophy, behind it? I suggest it is this: it is a recognition that if you admit anything in evidence simply because it is 737 true then in fact you may be led into grievous error. Not only may it be a grave injustice to the individual himself, but the court which admits such evidence, simply because it is true, may be leading itself into mistake and error. It is, of course, important and salutary that people should not tell lies, but I suggest that it is also important and salutary that people should not tell unnecessary truths. We are all familiar with the concept of the injurious falsehood. One of the concepts which is embedded in our legal system, with which we are perhaps not so familiar, is the concept of the injurious veracity. The virtue of this Bill is that, as it seems to us, it puts forward a solution to this problem which is wholly consistent with the practices and principles of the laws of evidence in this land as they have been for a long time. For these reasons, and for many others, it is my earnest hope, and I think it is a hope which is shared by a majority of my colleagues on these Benches, that the noble and learned Lord will add still further to his distinguished record in the field of law reform by eventually carrying this Bill on to the Statute Book.
§ 4.52 p.m.
THE LORD ARCHBISHOP OF YORK
My Lords, I must apologise that before the debate is through I shall have to leave the House for an engagement long entered into before this Motion came up. I should like to express my gratitude to the noble Viscount, Lord Colville of Culross, for allowing me to take his place in the order of speakers. We are indeed grateful to the noble and learned Lord, Lord Gardiner, and his colleagues for the Living it Down report and for the work that has gone into the drawing up of this Bill, a Bill which I am sure will elicit a large measure of support from a great number of people on both sides of the House. It has been said that a man's real punishment begins when he comes out of prison, and that has all too frequently been the case in years gone by. I think we are agreed that there should be a time when the stigma is removed and when the bogey is no longer likely to emerge from the cupboard and damn the man's life for the future. How many men there must be who have come out from supportive hostels—and may the number of such hostels increase!—and who have found work and begun a good career, 738 only to have that work snatched from them because their fellow employees have refused to work with them because of their past record and have forced their dismissal. An offence has been dragged up and the man's good record has been ruined.
There are certain points which I hope will be looked at perhaps comparatively minor compared with the main drift of this excellent Bill. No one sentenced to a term of over two years' imprisonment can benefit from its provisions. It may be thought that that is a little severe, and perhaps that the periods of rehabilitation are a trifle long. I hope that both those points will be looked at again. May there not be cases, especially among the younger prisoners, where so long a period may lead to the very thing we want to avoid, namely, recidivism? True that between the years of 12 and 17 the period is to be halved, but the formation of character goes on well past the 17th year, and one wonders whether possibly that period ought to be extended at least a little. Shortening the period of rehabilitation would indeed have to be hedged around with caution in order to protect the public, but I think this would not be impossible.
It was some sixty years ago that the Home Secretary of the day pleaded—and I quote his words—for… tireless efforts towards the discovery of curative and regenerative processes for the convicted criminal against the State.These processes, he declared, required an attitude of what he called unfailing faith that there is a treasure, if only you can find it, in the heart of every man. And they are the symbols which, in the treatment of crime and criminals, mark and measure the stored up strength of a nation and are sign and proof of the living virtue in it. The "Home Secretary of the day" was one called Winston Churchill.
My Lords, it seems to me that a very significant aspect of this Bill is that it expresses a sensible concern to further the efforts already being made in encouraging those who have paid the price of their crime to re-establish themselves as responsible and useful citizens. It would, I think, if passed, promote a new social climate in which the returning offender may come to feel that the community is 739 more friendly and encouraging than suspicious and hostile towards his efforts to make good. It is bound to have some effect for good, even during the years of the rehabilitation period, and in that it will tend to make vindictive and self-righteous people think twice before they deliberately impede the man's progress towards rehabilitation.
If the passing of this Bill did something to reduce the recidivism which clogs up our prisons and reduces the effectiveness of their training programme, it would be infinitely worth while for that alone. Indeed, it could be a kind of posthumous fulfilment of the work of men like the late Lord Stonham, who campaigned to reduce the appalling total of human waste represented by recidivism. And I think it would also underline the emphatic insistence of the report of the Working Party so ably presided over by the late Lady Reading, which insisted that the essential point to get across to the public is that the vast majority of offenders are not dangerous criminals but individuals who are handicapped by their inadequacy. To go on treating them as second-class citizens who can have their future dragged from under their feet at any time by their past serves only to make our social problems, which are intractable enough already, even more intractable.
The basic need is for a social framework of positive and stable relationships which will encourage such men and women to make good. This Bill at least recognises their reversionary rights to the society against which they have offended, and it is, I believe, another step forward towards a social climate in which the caring community can develop its capacity to cope with a problem which has hitherto outstripped social attitudes which have not yet come into line with our deeper new social awareness.
The noble and learned Lord, Lord Gardiner, has already mentioned the point about which some of us still feel an element of unease. It was put crudely in an article in a Sunday newspaper last weekend, the writer of which gave a very appreciative review of the Bill before your Lordships. The article began:At least a million people in Britain will be encouraged to lie about their criminal records with the full approval of the law.That was putting it very bluntly. To 740 this, I suppose, members of the Committee which wrote Living it Down, and were behind the drawing up of this Bill would reply that in law such statements will be true. But I think there will continue to be very many—and they will include those whom this Bill is aimed to help—who think that a lie is a lie, whatever the law says about it.
One hopes that reform would proceed by making it an offence to ask questions in a form other than that to which a person could give a truthful answer without his disclosing his criminal record. I speak as a layman in these affairs, but would it not be possible to put such a question as, "Have you ever been convicted of an offence which, in the past, has not been rehabilitated?", and insist that the answer be a monosyllabic "Yes" or "No", with no qualification at all, such as the noble and learned Lord, Lord Gardiner, hinted might have to be made, or would be made, by one who had never previously been rehabilitated? However, these are minor matters. They are warts which I think could be cured by a bit of careful surgery. The main tenor of the Bill seems to me to be an admirable one, and it is much to be hoped that it will be given the overwhelming approval of your Lordships' House.
§ 5.2 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, it is very easy for me—and I shall be genuine in so doing—to echo the sentiments expressed by the most reverend Primate the Archbishop of York and the noble Lord, Lord Foot, who underlined the good that this Bill will do to those who, having run foul of the law, have suffered either a prison sentence or some other penalty, but have now lived it down. It is a just tribute to the noble and learned Lord, Lord Gardiner, and his colleagues on the Committee, who produced first of all the report and now, after a great deal of work, the draft Bill, that there should be so much interest in your Lordships' House this afternoon and so long a list of speakers. It is the sort of Bill in which this House excels, and I think that we shall debate it with very great advantage this afternoon, and on future occasions as well.
I want to make some comments on what is in the Bill, and I have also, I am 741 bound to say, some criticisms to make. It would be irresponsible of me if I did not draw attention to some of the by-products of the Bill. I do not do so in any sense hostile to the noble and learned Lord, but I want to try to demonstrate to him—and perhaps to some others who may not have thought of all these points—that there are other aspects of these proposals which do not appear in his report. It may just be that even his great legal brain has not thought of them; but they are matters which we should consider at the same time as we are dealing with the more general issues that have been covered in the speeches—not so much of his own speech, because the was a resumé of the report—but of other noble Lords who have already spoken. If, as the debate goes on, there are other individual cases of the sort that the noble and learned Lord mentioned that we ought to try to deal with, I shall be just as interested in them as I was in the ones at the beginning of Living it Down.
I should not be surprised if, at the end of this evening, the broad principle of the Bill were accepted by everybody who speaks in the debate this afternoon. Of course this is only one of the methods whereby we can deal with the matter. We have to decide whether the legislative approach adopted in the Bill is justified in principle, and in terms of the restraints that it places on other people in other circumstances, and whether it is likely to be workable and effective. The noble Lord, Lord Foot, says that it is ingenious. I wonder quite how effective it is, and whether it does not have some unforeseen by-products. Before I continue with that theme I must echo my own sense of slight doubt about something the most reverend Primate has already mentioned: this idea of the authorised untruth. It may be the best of the four choices open to the noble and learned Lord, but it is not altogether palatable to everybody. After all, the Bill itself talks about the oath: the oath is to tell the whole truth. As I understand the point made by the noble Lord, Lord Foot, it is that the whole truth may, on some occasions, be the unnecessarily whole truth. But "the whole truth, and nothing but the truth," has been the basis of the oath in the courts for a very long time in this country, and one 742 becomes a little hesitant in overturning that principle.
§ LORD FOOT
My Lords, would the noble Viscount allow me to interrupt for a moment? Would he not agree that the fault may be with the oath? We call upon people to swear an oath saying that they will tell "the truth, the whole truth and nothing but the truth", and before they have gone very far in giving their evidence we tell them, "You cannot tell us that, because although it is true you are not permitted to do so under the laws of evidence."
VISCOUNT COLVILLE OF CULROSS
My Lords, if I am tempted into the hearsay analogy, I am bound to say that I have some doubts about the complete propriety of that analogy with the solution that is put forward in this Bill. I do not want to get involved in this aspect. I make my point: I do not think that everybody likes the authorised lie—and we should face up to that straight away—but it may be the best method we have so far of dealing with the issue.
Let me first deal with the certificates—that is Clause 4 and the Schedule. It is a little hard, perhaps, on the noble and learned Lord, if he put this in at the behest of the Home Office because we did not see how it was going to work, that he should now receive the next passage of my speech in return. I am sorry about it, but there it is. What one has to do if one can is to devise a method which is suitable for this country. I am fascinated about the law of Ethiopia, and I am equally pleased to know what happens in the courts where the law is derived from Roman law, such as France and probably Austria. But, my Lords, we are not, in this country, dealing with a situation where a criminal conviction carries with it a loss of civil rights as a matter of course. This is the reason why, in most of the Roman law countries, there is some method, whereby, after a time, a man gets his civil rights back and is allowed to vote again and do whatever it is that he was precluded by the conviction from doing. This is the essence of the process of rehabilitation; and although it may have some very useful by-products in other respects as well, it does not apply here because we do not have that system.
743 Without going further into foreign law, I will merely point out that we must have a system that works well for our own country.
The system here is the certificate; that is what the noble and learned Lord suggests. It is intended to have evidential value, but the principal piece of evidence that it carries is of course the one thing that the Bill is setting out to obliterate. It draws attention to the very offence from which the person is to be rehabilitated. Therefore, although I appreciate that it is the best that has so far been produced, it has exactly the opposite effect of what one would hope if it is ever to be produced in any circumstances at all. Either it is produced to show that the man is not rehabilitated, in which case he is no better off, or he produces it and in doing so draws attention to the very offence that he is wishing to get away from.
There are further points than that. One of the points made is that after the certificate has been given in respect of one conviction, there shall not be another one afterwards; or, alternatively, if there were conditions such as the payment of a fine those conditions shall have been fulfilled. Most fines are paid eventually, but they may not be paid in accordance with the order of the court, and one does not know exactly how anybody is to find out whether the full requirements of the sentencing court have been fulfilled. One certainly cannot see from the certificate itself whether there has been a supervening conviction which cancels out the effect of the original certificate and starts the process over again. So, certificate or no certificate, the offender, and anybody else who wants to know whether a stale conviction can be safely disregarded and is indeed obliterated, has one source to go back to; that is, the court records. These will have to be kept very accurately and with a great deal of cross-referencing for many years—for ten years in the case of the longest rehabilitation sentence—and where different courts are concerned they will have to cross-check with each other.
I must suggest to the House that this will mean a good deal in terms of manpower and extra work for the staff of the Crown Courts and the magistrates' courts.
744 The number of people found guilty of criminal offences, both indictable and non-indictable, in 1971 was 1,687,980. That does not mean that they were necessarily all different people, because there may have been several offences in the same case. One could deduct perhaps 3,000 for long sentences not covered by the Bill, but I should have thought that somewhere in the region of 1 million certificates would have had to be issued in 1971 under the Bill. I do not think the noble and learned Lord has consulted the staff of the courts about this point. I do not think he had time and I do not blame him for not doing so; we have not yet done so either. But it is a formidable job that we are putting on them and, at the end of the day, I wonder what use this certificate, if it has been kept, will be except to draw attention to the very thing we want to forget. There is one other technical point about the certificates. The Bill does not deal with what happens on an appeal, and this is something which would also have to be put right.
I should like to look away from the criminal law for a moment at a field that has only been touched on in the Bill and in the speeches so far, and that is the by-product effect of the Bill on the civil law. Like the noble and learned Lord who prefaces his report with some case histories, I should like to give some examples to the House of what could happen under this Bill. I do not think these are ridiculous cases. I have rejected the ones which are so farfetched and so rare as not to be on the cards at all. May I take the example of a road accident involving a young man of seventeen and his motor-cycle, which I regret to say is a fairly common occurrence, in the course of which he seriously injures somebody else, and that other person's injuries are of the sort that take a long time to recover from? As the noble and learned Lord will know very well, in these circumstances a civil action for damages is very often not brought until very near the end of the limitation period, in order that the final outcome of the injuries can be examined. It is no use starting an action too early, because if the damages are assessed before the final outcome of the medical reports you either give too much or too little, owing to the fact that you have not reached the end of the illness.
745 In the case I have mentioned, the young man was fined for the offence which caused the accident. After 2½ years he becomes rehabilitated under this Bill, because he is under 18. The result is that all the evidence tending to prove that he is other than innocent of careless or dangerous driving is precluded from admission in any court, and that includes the civil court. That means that the person who was injured must make certain that his or her civil action for damages for negligence is brought to court before the 2½ years are up, because otherwise the measurements which the policeman took on the road cannot be mentioned, and any evidence connecting the young man with carelessness cannot be mentioned, because they will tend to show that he has been guilty of an offence and such evidence is made inadmissible under the Bill. On the other hand, if the action is started so that it is heard within the 2½ years, you may be in exactly the position that I have mentioned; that you have not yet reached the stage of knowing the final outcome of the injury, and the case ought not really to be tried at that stage.
Then one comes to divorce. The noble and learned Lord mentioned divorce in France. There are some circumstances, which I shall not go into in detail, where wives—or indeed husbands—who wished to base divorce petitions upon criminal incidents in which their spouses had taken part could get into difficulties. The most obvious one relates to an offence for which the other party was put on probation, but since I disagree so fundamentally with the length of time of rehabilitation after probation, I shall leave that out because that could be cured. But may I put one point on divorce to the noble and learned Lord? Everybody now knows that the divorce itself does not turn any more on fault, on guilt or on innocence. But these matters of responsibility for the breakdown are relevant in sorting out the money and property, because although it is behind the scenes it is part of the divorce hearing and the court will wish to go into the full history of the marriage; to try to see how much money each of the two parties should have and how it should be shared out; to go into the question of who should have the children and so on.
746 Are we to prevent the courts from knowing that the reason why the parties originally separated was because the husband went to prison; or the reason why the wife had to sell all the furniture was because the husband was in prison and she had no other money to live on? After certain periods in prison, and after a rehabilitation period, the registrar or the judge would be precluded from hearing any evidence at all on this point, or any evidence to suggest that the husband did anything to the wife, such as beating her up, for which he got a prison sentence. So we could have a very strange state of affairs and a very unfair settlement of the matrimonial property. This is a matter which needs seriously to be looked at, because although it has nothing to do with crime itself it could lead to great unfairness and hardship in another field.
Insurance was considered by the Committee, and the noble and learned Lord said that he has discussed this Bill with leading insurers. But let me tell the House how it will work. Let us suppose that a company had a block fidelity bond insurance with an insurance company, and there was an employee who stole, say, £200 in 1963 and was sent to prison for two years. He came out and in due course, in 1973, got another job with another company which had a block fidelity bond insurance with the same insurance company. Unfortunately, and perhaps as a great exception, in due course he stole from the second company. Now he told his second employer that he had no previous criminal convictions, and he was entitled to do so because, under the Bill, he was rehabilitated, it being more than 10 years. The company therefore claimed on its policy, but the insurance company knew from its own records and from the previous case that this man had a record, and it therefore sought to repudiate, saying, "The company has failed to tell us something which is material"—and under the law it is for the insurance company to show that something material has not been disclosed. Under the Bill they could not do so, because if they were sued for the money under the insurance policy they could not bring evidence to show that that employee had previously been convicted of dishonesty.
I do not know whether the insurance companies have realised that this is the 747 situation, and I do not know whether they are convinced by the noble and learned Lord's statistics, on which, I am bound to say, I place a little less faith, because I have not seen how they break down as between different sorts of offences— and this is relevant in this connection. I do not know whether the insurance companies realise the risks they are taking and what the effects would be on their premiums. But let me say this. Suppose we take the very same case but assume that on the first occasion the employee was not sent to prison but was fined. Then, of course, the rehabilitation period is five years. There is nothing whatever, even in the statistics that have been produced, such as they are, which suggest that he is not a risk again in five years. But, equally, if he does offend again, the insurance company will not be able to find out and the employers will not be able to find out, and the insurance company will not be able to avoid payment on that policy even though they know that that man has been previously convicted of dishonesty. My Lords, I wonder whether the insurance world has fully grasped the details of this.
Of course, to take it further still, we get the ridiculous situation—and I shall come back to this—where if, on the first occasion, instead of being prosecuted and either fined or sent to prison, the employee had simply been sacked, then the insurance company could find out and could act upon the matter, because they could discover from the employer and there would be no rehabilitation period and no bar on the use of this information for ever afterwards. But I shall come back to this in connection with references, because there I think it is even more important.
In defamation, which has also been mentioned, we have a main pivot of the Bill, because it is upon the frightening effect of possible defamation suits that I think many of the changes in the public attitude which the noble and learned Lord wants will turn. In this country, defamation traditionally carries with it the defence that what was said is true. This is the defence of justification. Of course, I hope that private people and newspapers will not go "muck-raking", but let us just consider people's position in the field of defamation. I have already 748 explained that under the certification procedure it will not be very easy to know when a person is definitely rehabilitated from an offence. It will not be very easy for the neighbour next door. He will not go round searching in court records and asking earnestly of the courts to see whether something which he knows has happened to his neighbour has now been cleared from the books. Suppose that he does not do so and that in the course of an argument he says that his neighbour is a very bad driver, and the reason why he thinks this is because a few years ago his neighbour was convicted of dangerous driving and fined. It may be perfectly true that he was fined for dangerous driving; but unfortunately for the man who says it, the offence occurred more than five years earlier. When the neighbour sues the man for slander, he no longer has any defence at all, because he cannot tell the truth about that conviction. Perhaps it serves him right; but, on the other hand, it is not easy for him to know when the five-year period from the conviction is up, and when it is absolutely dangerous to make any further reference to it. One day it is safe: the next day it is a bomb under his path.
But I am much more concerned with the question of references. Despite the fact that I am still not very happy with the drafting of Clause 6(1) (because I am not quite certain what the words in brackets mean), I know that the noble and learned Lord wants references to be retained so that employers can say in honesty what they know in circumstances where it is their duty to pass on even disagreeable information about former employees. But let us look at the situation at the present moment. An employer, in a reference about a former employee, tells the truth. Let us again take the case of the man convicted of dangerous driving. If he is sued by the employee in defamation, he has at the moment two defences. First, he can say that it is true, anyway. That is an absolute defence, and that is an end of it. The other thing he can do is to rely on qualified privilege. Qualified privilege arises (I am not very good at the law of defamation) where the two people between whom the communication has passed are in a position of trust, the one against the other; they are privileged in what they say so long as the person making the allegation is not 749 actuated by malice. So the person who gives the reference has a second defence. He can say that it is true, and he can also say, "This is a matter of qualified privilege, and all I have to say here is that I believed it to be true." The only way the person who says that he has been libelled or slandered can get round that is to claim that the man who made the statement was actuated by malice. Suppose that, in the simple case that I have instanced, qualified privilege was involved, and that the employer who gave the reference says, "I believed it to be true". "Why did you believe it to be true?", asks the other side; and he replies, "Because it is true—and I can prove the conviction." That is the present situation if malice is alleged.
Now look at it under the Bill. The first defence, that of simple truth, has gone, and only the defence of qualified privilege remains. Let us see what the employee who was guilty of dangerous driving, who did not get the job because of the bad reference and who brought the action for defamation will say. He will sue for defamation; the defence will be qualified privilege, and he will say in his reply that it was malicious. The referee, the person who made the reference, says as his part of the case, "I believed it to be true"; the person on whom the reference is given says, "You are just being malicious", and the person who gave the reference says, "No, I am not; I believed it to be true". Then, when pressed, he says, "I cannot tell you why I believed it to be true, but I just believed it to be true". The reason why he cannot tell why he believed it to be true is because under this Bill he is debarred from mentioning the conviction.
§ LORD GARDINER
My Lords, with respect, and if the noble Viscount will allow me to interrupt, is not the reason why he believed it to be true the reason which he will give—"I read in a newspaper that he had been convicted", or, "Because Snooks, who is an honest man as far as I know, told me he had been"? There is nothing to stop him from saying that.
VISCOUNT COLVILLE OF CULROSS
I think there is, my Lords, because to say, "I read in a newspaper that he had been convicted" is evidence tending to show that he is other than an innocent man, 750 and it conflicts with Clause 2. If that is what the noble and learned Lord wishes, then I am much happier. If he is allowed to say, "Oh!, but I read about it in the newspaper", that is fair enough. But as the Bill stands he cannot say anything that tends to show that that employee is other than innocent of dangerous or careless driving. That is the way the thing stands at the moment, and I am not sure how he is going to establish that he believed it.
At the end of all this, as the Bill stands, I wonder what the honest employer will say to himself. I think he may say, "These references are storing up trouble for me; I will play safe; I will not say anything about that careless or dangerous driving, after all". Will that not, in the end, be contrary to the sort of thing that we want when references are given from one employer to another?
§ LORD DONALDSON OF KINGS-BRIDGE
My Lords, may I ask the noble Viscount a question on that point? It has become a very exaggerated picture. If you are asked to give information about a lorry driver and he had been convicted for dangerous driving, the shortest period in which this can arise is five years. Most drivers do not stay with the same firm for five years, and even if one did and he had driven perfectly ever since it would be an odd employer who made that point. I think it is an exaggerated case and wants toning down a little.
VISCOUNT COLVILLE OF CULROSS
My Lords, my difficulty is that in order to try to explain the law of defamation and of qualified privilege in a form comprehensible to me I have to take it very gently. I am sure that noble Lords are much better off in that respect, but I find it difficult. Therefore, I may have oversimplified and emphasised the situation; but I know that this is something the noble and learned Lord, Lord Gardiner, wants to preserve and therefore I am going through the mechanics to see why there may be difficulties about it under the Bill as drafted. I hope that I have the law right.
Talking about references, I should like to say a word about Clause 7, because this is another area where I know the noble and learned Lord has sought to put in safeguards, and I am not sure they 751 are all there. Certainly he sought to protect many areas of national security and Government Departments and things of that nature, but I wonder whether Clause 7(4)(c) is as tight as it should be. Noble Lords will remember that when we were dealing with the Criminal Justice Bill one matter we talked about (and the noble Baroness, Lady Wootton, was very keen on this) was a register of people who had been convicted of sexual offences, who should not be employed in schools or in certain sorts of hospital. There was no doubt in the House that everybody wanted to make sure that this did not happen. I feel sure that there should be a register and that even if people had been rehabilitated this is something which employing authorities should know about. I do not think the noble and learned Lord will dissent from that.
What is the defence available to the person who gives the information to the hospital authorities, the hospital management committee or the local education authority? The hospital management committee or the local education authority are not a court, not the police, not a Government Department. I am not certain whether the Secretary of State would duly authorise everybody—and this is under Clause 4(c). And if the authority was given, could it be said to be for the maintenance of law and order? It is for the protection of people in the school or patients in the hospital. It is not for the rehabilitated person.
If that is so, we have a gaping hole in the drafting of the Bill which is doing something that the noble and learned Lord would not wish to see. And what about the professional organisations? Incidentally, I should tell the noble and learned Lord that that exercise is still going on. There were quite a lot of professional organisations, quite a lot of people, including the police who would like to get into the act and who may or may not be able to, and in the way things have been going in the past consultations have had to take place between one person to another person in order to get everybody to agree. It is actively under way but it is not yet finished.
Let us look inside the professional organisations. I suspect that the Bar Council, the Law Society and the medical 752 authorities keep a list of naughty lawyers and bad doctors who have committed criminal offences. They take account and are probably told by the court of the criminal offences so that they can take their own disciplinary action. What happens if they use it? They have—I should have thought this was inescapable in the case of those who under the present system are supplied with information by the police—indirect access to official records and information contained in it. That is under Clause 7(2). In other words, they have the information about the conviction. They make use of it. The Church, I suspect, come in this category. I do not suppose the ecclesiastical authorities wish altogether to disregard serious offences committed by vicars or curates when they are coming to consider their further promotion.
THE LORD ARCHBISHOP OF YORK
My Lords, the Church has her own special provision for this kind of thing. If a man is convicted of a very serious offence, on that conviction being reported to the ecclesiastical authorities by the secular court the clergyman in question is declared to be prohibited from holding office in the Church for the rest of his life or until the Archbishop withdraws it.
VISCOUNT COLVILLE OF CULROSS
My Lords, I thought that there was something like that, but I suspect that there are offences lesser than those which lead to such dire results. Nevertheless, it is something the Church will wish to bear in mind.
These professional bodies— perhaps the Church is not the right one to choose, but the Law Society, the Bar Council and the medical authorities come into this category—are in due course bound to pass this information on to somebody. What happens if the barrister is reinstated and does very well and later some question of a judicial appointment comes up? It may be that he has lived it down, but they must he at liberty, if necessary, to tell the noble and learned Lord the Lord Chancellor about it. But if they do so, as I read Clause 7, they commit a criminal offence, punishable on indictment to a fairly substantial term of imprisonment and a fine. In the case of the professional bodies I do not think that this is right. The noble and learned Lord may like to consider whether Clause 753 7(2) does not also catch the employer giving a reference; because he has had, surely, on the words of it, indirect access to the information contained in the official record if he even reads about the event in the newspapers and then passes it on. I believe that he could be in danger of committing a criminal offence if he passes on the information at all.
Another category I am very worried about is the whole range of social workers. There are case conferences about problem families. May I take again what is perhaps an exaggerated example, to give the idea? Dad is in for his third term of imprisonment; Mum is on probation for the second time for shoplifting: little Willie has a care order and two of the elder siblings have been in trouble with the law at one time or another. We have a situation here where another of them, perhaps, is due to be considered for parole. The noble Lord, Lord Hunt, wants a good idea of what the release plan is to be for this person.
Over a period of time those social workers build up their knowledge of this family; they contribute to it; it is in the hands of a probation officer very often for some purposes, but it could go around the children's department and many other people in the social work department. How are they to know when the various offences have been rehabilitated? Are they to go dashing to and from the courts to find out when a 5-year or a 7-year or a 10-year period has run out? Anyway, ought they not to be able to talk among themselves about and present to people like the Parole Board a complete history of this family, so that those who are making delicate decisions, such as an the matter of parole, have the full knowledge they ought to have—not for any evil purpose but simply in order to help and certainly to know whether this is a supported family into which somebody can go back? If they mention any of these things to anybody, or even to each other, as I understand it, they are committing a criminal offence under Clause 7(2). I am sure that the noble and learned Lord does not want that to happen.
I am sorry that I have been so long, my Lords, but I have a good precedent this afternoon. I am coming to an end. I think there are further problems about sentencing. I have already said that I have a great deal of sympathy about the 754 quoting of stale offences in public. I wonder to what extent this is done. There are of course cases which have been quoted. But I remember from my somewhat rare expeditions to quarter sessions, what happened when I used to prosecute what were usually "guilty" pleas. When it came to the police officer being in the witness box and the antecedent history having to be read out, if I did not do it myself the learned chairman or deputy chairman usually said: "I think we will start with that one in 1964, Lord Colville", and we skipped all those going back into the dim and distant past.
This, as I understand it, is commonplace in crime courts to-day. Some magistrates' courts may not be quite so good about it, but what we in the Home Office have just done is to issue a circular about it. In fact, it was the Magistrates' Association who approached us in the first place. They expressed anxiety about this and asked whether we could help them to devise some procedure which would avoid citing old and irrelevant convictions. It was in fact quite a difficult process to come to agreement on it. But what we are inviting in the circular, which has already been issued, is that magistrates should follow the practice of the Crown Court, where a list of convictions is supplied to the court and the court selects those which are irrelevant and those which should be cited in open court. The different circumstances in magistrates' courts may not produce universal application of this process, but we believe that it is going in the right way: and it is something positive that can be done by administrative means—indeed, we have done it already.
My Lords, in this Bill there are some things as to the correctness of which I am not sure. Is it right that the magistrates' courts should themselves be kept in the dark about all the past history of the man in the dock before them, as opposed to telling the public about it? Is it right that the magistrates should not have the full antecedent history? Should they be different from the Crown Courts in this respect? Under the Bill, that is the position. Then, as has been mentioned already, they have power to send a person for sentence to the Crown Court either for borstal training, under Section 28, or for some other sentence under Section 29 (incidentally, Section 28 is not in the Bill, and I think it should be), 755 if they feel that because of that person's character and antecedents the sentence which he deserves is a larger one than they themselves can give. If the magistrates have not the full antecedent history, how can they know about the character and the seriousness of the offence? After all, to take a borstal case, a young offender under 17 is rehabilitated from convictions leading to fines in two and a half years; but these might be very relevant even on a later borstal sentence. Yet under the Bill as it stands, the magistrates are not allowed to see them.
But the worst point of all, I think, relates to probation. Under Clause 3(3) no reference to a probation order may be made after it has terminated, provided that it was satisfactorily concluded: it may never be referred to again. Once more I come back to the Criminal Justice Act of last summer. Did not virtually every noble Lord who spoke on social inquiry reports say that the courts should have these reports in as many cases as possible before sentencing people appearing before them? I think there was an Amendment to make that compulsory in every case. What is the use of putting a social inquiry report before magistrates when it is not allowed to mention the way in which somebody has behaved on a probation order that has just been completed? The probation officer, under the Bill as it stands, cannot say how the person responded, because he is not allowed to mention to the magistrates the fact that there was a probation order at all. But, ludicrously enough, if the case is in the Crown Court it may be mentioned. If it is a case where the magistrates have committed for sentence, it means that we have an expurgated social inquiry report before the magistrates, and a new one for the Crown Court which for the first time exposes the former probation order and how the man or woman responded to it.
§ LORD WELLS-PESTELL
My Lords, is the noble Viscount correct? As I read it (I may be wrong about this, not being a lawyer), the probation officer would be precluded from mentioning it if the person had completed his or her probation period satisfactorily without any breach and had been free of any further charge for the length of time that he was on probation. Is that not so?
§ LORD WELLS-PESTELL
So if the person had been on probation for two or three years, and had kept clear for two or three years after the offence, it could not be mentioned. The noble Viscount is objecting to that, I believe.
VISCOUNT COLVILLE OF CULROSS
Yes, I am indeed; because perhaps the very next day, by ill-chance, he comes back and the magistrates cannot know that he has been on probation yet alone how he has responded to it. It was all very well when probation started—and the noble Lord quoted from Section 12 of the Criminal Justice Act 1948 in his Report. In those days probation was on trial—it was perhaps for the young and less serious offences. But now we are all trying to use it in every case where it is possible for quite serious matters—matters which might, but for some extenuating circumstances, have led to a prison sentence. Yet we have an instant cut-off and no method whereby the magistrates can see whether or not it has been an effective way of dealing with the man. I am sure that that is wrong. I am also sure that the equivalent provision under conditional discharge is wrong, because we have an instant cut-off here. If the man satisfactorily fulfils the period of the, as it were, binding-over, if he commits an offence again in the eleventh month of a year's conditional discharge he can be taken back to the magistrates' court and dealt with for both offences. If he does it in the thirteenth month, he can be dealt with only for the offence that he last committed, and the magistrates are not allowed to know that he was conditionally bound over and that expired exactly one month before.
§ LORD GARDINER
My Lords. I wonder whether the noble Viscount has considered this in relation to probation, because, after all, this committee of stipendiary magistrates sentences people every day of the week. Is it not right that if a man is put on probation for two years, and he completes his two years without further offence, what he is told is: "If you behave properly, do what the probation officer says and get into no further trouble during these two years, you will never hear of this offence again."?
§ LORD GARDINER
If after the two years he does something wrong, the first thing that happens is that his old conviction is raked up against him. The exact opposite of what he has been told. We thought that put it right.
VISCOUNT COLVILLE OF CULROSS
My Lords, this is a matter which we shall plainly have to argue about, because I think we should have a longer period in the case of probation orders, and possibly conditional discharges as well, because they are sometimes the result of quite serious offences which under this Bill would, if they have been dealt with by way of a fine, have carried a 5-year rehabilitation period. If they are dealt with by a probation order, they carry two years, or perhaps three years at the outside, and the magistrates cannot know afterwards that any such thing was ever in existence. What happens if it is the same magistrates' court and they remember perfectly well anyway, I do not know. We have not had the reaction in Scotland as yet; I do not know what this means.
Foreign convictions worry me a little. There are Admiralty cases and arbitration cases relating to foreign ships. What happens if the master of a Greek or Liberian tanker has been convicted in his own country for an offence relating to matters that arose out of the collision and has now under the Bill been rehabilitated? Are we not going to find the courts and the arbitrators in this country precluded from knowing any piece of evidence relating to that collision which might have a bearing on showing that that man was guilty of criminal negligence in the Greek court or the Liberian court? That is the way that the Bill would work at the moment, I think, in relation to foreign convictions: and it is not very easy.
The Bill is completely silent on appeals. If a convicted person wins his appeal and has his conviction quashed, he is presumably regarded as never having been convicted, so that anybody can talk for ever about the original conviction, the facts that surround it and all the other concomitant matters. There is no rehabilitation period at all, even if he got off on a technicality. I do not 758 think that reflects the spirit of the noble and learned Lord's Bill, and it may be something he would care to consider—though how to deal with it is a very difficult matter, and one for which I have no solution. I looked at the cases at the beginning of Living it Down. Two of them, I think, are specifically helped by the Bill: three of them would be helped as well by our circular as by the Bill. There are some aspects of one or two of the other ones which in some circumstances might be helped by the Bill but in others might not.
I am afraid that, wearisome though this analysis has been and very lengthy, it has led me to the conclusion that we have not solved, even with this Bill, all the problems. We have created a great many others—of which I have given some examples, though by no means the whole list—particularly if we are going to insist on the present provisions about probation orders, because we shall get into serious trouble in the divorce courts if we do that. I left out specific instances relying on probation. I know that the noble and learned Lord would like to consider with great care these points—and no doubt any others that I give to him privately—because I put them forward in all honesty in an attempt to show that there are many difficulties that we have not so far considered, mainly in the civil law.
My Lords, I hope that the House will consider these matters again. I am certainly not going to suggest that we should vote against the Bill to-night, but I believe that we have a long way to go before this is a satisfactory piece of legislation—and I am not absolutely certain that this Bill is ever going to be the vehicle for it. But I do not want to abandon hope. I hope that we shall go on with this debate and that we shall be able to make some constructive amendments during subsequent stages.
§ 5.52 p.m.
§ LORD SHACKLETON
My Lords, I am most grateful to the noble Viscount, not only for the clarity of his speech but for the fact that he just managed to miss cutting the 50 minute line.
§ LORD SHACKLETON
I know, my Lords; and I wonder at times how it is possible for us in this House to find the time to deal with these highly technical measures. I rise now to speak very briefly because I hope—encouraged by what the noble Viscount has said—that your Lordships will give this Bill a Second Reading. I think we can all take it as proved by my noble and learned friend's speech that grave mischief is caused to individuals in the present situation and that people are suffering very grave hardship which we would not think it right for them to suffer. I believe his eloquent speech has very clearly made the case on that point. Therefore, the first question is whether satisfactory legislation can be produced to deal with this situation.
I have listened very carefully to what the noble Viscount has said, and some of the points he has raised have bothered me personally. I have been in correspondence with my noble and learned friend about this very interesting document, in regard to which I had a number of reservations on technical and practical grounds. I should like to mention very briefly some of the points that still bother me, but all against the background that I believe it is right that this Bill should have a Second Reading to-day and should be examined in Committee and, if necessary (though my noble and learned friend may not perhaps welcome this course) be examined by Select Committee. This Bill, if I may say so, is a very much better and much more practical Bill than the Anti-Discrimination Bill to which we gave a Second Reading, and which I supported in principle and indeed urged should go to the Select Committee. Thanks to the efforts of my noble and learned friend Lord Gardiner, it is likely now to emerge as a satisfactory measure.
Briefly, my first point of anxiety concerns Clause 2. I really am bothered that it should so appear to a layman, although I am encouraged to believe that there are some lawyers who are also bothered by Clause 2(a) which says:any statement made by him … shall not render the maker guilty of any offence"—that is, in denying that there was a conviction. I find it risky in the extreme always to argue legal matters with such brilliant colleagues but I do not, any more than the noble Viscount, find the 760 analogy drawn by the noble Lord, Lord Foot, in relation to hearsay evidence to be a valid one. Nor was I happy about my noble and learned friend's statement that it is perfectly reasonable to say that something in an Act of Parliament can be deemed to be such, when it is not in fact said in this particular subsection. This has worried me most about the Bill; nevertheless, I believe the difficulty can be overcome.
My noble and learned friend referred to the fact that in France they acknowledge it as a legal fiction. I would hesitate to start looking at French law, but I see no reason why it should not be possible to find a phrase which, instead of sayingany statement made by him … shall not render the maker guilty of any offence …",says thatany statement shall be deemed to have the meaning …or possibly better still:any question in regard to this matter shall be deemed to have the meaning as in the subsection above.It seems to me there is here a real problem, not only to me personally but perhaps also to lawyers. It may be that the noble and learned Viscount, Lord Dilhorne, shares my view on this matter. I believe there may be a real difficulty to individuals who may be very honourable people and who, having had such a conviction, would find it intolerable to have to say in court or anywhere else that they had not been convicted, simply because the law says that, as I understand it, they would not be guilty of an offence in so doing. I do not believe it to be impossible to redraft this clause in a way which would not create this particular difficulty.
I make these criticisms because I am most anxious to see this Bill, amended as necessary, become law. Therefore I should like to mention two other areas of criticism. I am also worried about certificates being automatically sent. Surely it would be possible to amend that provision so that people could apply for a certificate if they so wanted. Perhaps I have misunderstood, but it appears that there is an obligation to deliver a certificate; it arrives in a special envelope which somehow becomes recognisable—though of course it might be possible to disguise it as an income tax return. Frankly, I would rather not have it automatically 761 given. This again is the sort of Committee point which can be dealt with later.
I come now to the area in which I have had some experience, namely, references. I have been responsible for giving or handling references of more people than practically any noble Lord in this House. This is because in my personnel management days in a large organisation I had to operate this system over the whole organisation. I believe there is scope for some legal inquiry of the kind that Justice has carried out as to how references are given. I believe that most people attempt to give references in a responsible way, but the recklessness with which some references are given and the fact that they are not available to the individual about whom they are written is, to my mind, a very serious handicap and I am coming on now to explain why I am not entirely happy about this part of the Bill.
My organisation used to issue references under specific rules. We never volunteered information for which we were not asked. We never concealed that somebody had been convicted; we always said that the reference could be shown to the recipient, and we always refused to take information by telephone. The art of reference examination covers not only the details of the information given, but the completeness of the career check. Time and again one found, in looking into somebody who was being considered for a very sensitive job, like a security post, for which a responsible employer might well ask for almost a lifelong reference —certainly 10 years—that almost immediately there was a glaring gap. How does the individual explain this away? I hope that Justice, or someone, will look at this particular system. None the less, I am worried about the action of a responsible employer anxious to be honest and to do his duty, but doing so against the background of certain of the provisions of this Bill.
Access to the Criminal Record Office has been all too easy. My noble and learned friend Lord Gardiner exercised some caution in not revealing the extent to which access has been had to that Office. This is a disgrace. I find it difficult to see how information, which properly should be made available to certain employers, is to be sifted or judged. We 762 can talk about the public authority, but what about the private authority? I am not sure whether I want the private authority to have access to the Criminal Record Office. A school, or an employer who employs a large number of young girls, does not want somebody who has had a previous conviction of a sexual kind. The position of the employer needs further examination, and I hope that this can be dealt with in Committee.
If I may hazard one suggestion to the noble Viscount, he has listed a number of areas where it appears to him that this Bill creates difficulties, and particularly in civil cases. He produced some powerful arguments, and I will wait with interest to see how some of my legal friends deal with them. It is surely not beyond the bounds of possibility to draft a clause which would make it possible within defined and appropriate examples—the noble Viscount certainly gave some, and I cannot believe that the categories are inexhaustible—where it was necessary to give this information. I have a difficulty regarding Clause 2; the conviction is not expunged under this Bill; it remains for ever in the records, and it may have to be referred to, for instance, when a person applies for a visa to the United States, or is at a foreign port. Would it be possible to define those areas where this could not be regarded as a spent conviction?
This is not the first Bill that has come before your Lordships' House that has had, as I hope it will have to-day, a Second Reading, and which has finally become Statute Law. Although many of the earlier Bills have not had quite the legal distinction that has gone into the drafting of this particular Bill, none the less I believe that we ought not as a House to reject this Bill, but that we should seek seriously to meet the arguments which the noble Viscount has put forward. It will almost certainly be better to do this in Committee than go into great detail during the Second Reading, unless we are going to be here all night. I suspect—and I apologise for this—that some of us will have to be absent for some of the time. Therefore, whether it be in this Session or in another Session, we shall get an Act of Parliament which will deal with a mischief that is causing great anxiety, and sometimes the grossest injustice and hardship, to individuals. 763 Therefore I shall certainly support the Bill.
§ 6.7 p.m.
§ LORD DONALDSON OF KINGS-BRIDGE
My Lords, the best way I can help this Bill forward is by speaking very shortly. All I had intended to say was that I agreed with every word my noble and learned friend said, and leave it there; but as I disagreed with so many words that the noble Viscount on the Front Bench opposite said, I must say a little more. We had 47 fascinating minutes of trees, and two minutes of wood. This is a very important point. The Second Reading is supposed to be concerned with principle. Is there anybody in this House who differs with the principle contained in this Bill? Even the noble Viscount does not do so. We need to find a way of putting the intentions of this Bill into practice. That is easily said but difficult to do. If the noble Viscount thinks that I, as a layman am going to take him on point by point, I would remind him that we have some of the most expensive counsel and solicitors in the world on our side of the House. I shall leave it to them to deal with detail.
This Bill is trying to do something which everybody with any knowledge whatever of the penal field thinks ought to be done, which will relieve a good deal of hardship, and which, at any price, must not be allowed to disappear. The noble Viscount knows that I respect him and his views—we have often discussed things before. I do not wish to be personal, but I think he spoke as though he had spent two or three days working out a brief on how to destroy this Bill. That is absolutely the wrong attitude. The noble Viscount ought to have come to the House and said: "This is a Bill that we should all like to see go through. I do not think that it is right as it stands; there are many problems and I will help you sort them out in Committee." If his team of research workers, and his own extraordinary, brain, can be devoted between now and Committee to finding ways round the problems that he has posed, he will be doing the House and the nation a much greater service than by opposing the Bill.
I do not object to him showing us the difficulties in the Bill; but we heard some 764 exaggerated language, such as "a bomb in your path". I thought that was overdoing it a bit. It was an advocate's speech, and I am deliberately complaining about it.
This is a Bill which we have to get through Parliament. If it is wrong in certain ways, let us employ the lawyers—this is, after all, what they are for—to find a way of doing what we want. This is what you do when you go to a solicitor. You usually have to tell him how to do it, but even so this is the normal practice. And with the talent we have here, I think it is absurd for me to start telling the House how to do it. But I shall not be content—nor will anybody, I think, on this side of the House—if we fail in the end to find a way of doing what my noble and learned friend, and so many of us, wish to see done.
§ 6.10 p.m.
§ LORD BALLANTRAE
My Lords, it takes a great deal of nerve for a layman to take on the noble and learned Lord, Lord Gardiner, and risk breaking a lance with him; and my only qualification for doing so is this. I am a member of the Committee on Defamation set up in 1971 by the Lord Chancellor and the Lord Advocate, under the chairmanship of Mr. Justice Faulks, to go into the whole question of the law of defamation and how it can be amended. Much of what we are discussing this afternoon comes very much under this heading. All of us on the Committee have studied, read, discussed, and I think I can say sympathised with, Living it Down—a most persuasive pamphlet, with those eight heartrending cases quoted early on, some of which the noble and learned Lord has resurrected for us this afternoon. By the fact of his courtesy we were able to see an early draft of his Bill. The Bill in its present form we have not yet had a chance to discuss in our Committee, but we have all seen it. We hope to be able to report before the end of this year, anyway. Some of us are more optimistic than others about how early in the year. Of course, everything that has been said to-day, and what may be said later on, will be taken into account by our Chairman, my colleagues and myself, and will be studied very carefully. I think all my colleagues would agree with me in saying that I hope very much that no attempt 765 will be made to deal with the law of defamation—that very tangled area of the law—piecemeal.
So far I am pretty sure I have been saying what my colleagues would approve of. Now I launch out on my own, speaking entirely for myself, though I think that some of my colleagues would agree with most of what I am going to say. Personally, I am nervous of the idea of creating a whole category of people about whom we cannot tell the truth, whether it is in the public interest or in the interest of the individual. We are all concerned with the hardships which have been so eloquently described by most speakers to-day, and which the noble Viscount, Lord Colville of Culross, did not gloss over in any way. But to take just one minor point—or perhaps a major one—the task of historians, of biographers, let alone journalists, would be made incredibly difficult if this Bill were to pass in anything like its present form. Also, I feel there is a great danger that in its eagerness to protect the deserving it may result in protecting a great many undeserving, and protecting them in their self-imposed task of fleecing all the rest of us.
There are several anomalies about the Bill—I say this with great respect. Here is one; and I think the point has been hinted at before, if not made. Although the Bill protects the convicted, it does not protect the unconvicted. One case particularly springs to my mind: I am not going to mention the name again, but your Lordships will know whom I mean. I recall the career of a distinguished politician which crashed about 10 years ago. That man has lived it down; one might say that he has lived it down nobly. He was convicted of nothing, and the story can be raked up again and again, and is raked up again and again; in fact it was raked up again by the B.B.C. three weeks ago. Of the other people in that case, a young woman was found guilty of perjury; a man, who afterwards took his own life, was found guilty of living on immoral earnings. Because they had been convicted they would have protection under this Bill. This seems to be an anomaly, and I do not know how on earth one would set about curing it.
Quickly let me take two hypothetical cases. Again, the noble Viscount touched 766 on something very like it. X is employed by a company. He embezzles. The company has mercy and does not prosecute. As I understand it, you and I can go around saying "You know about X …" till the cows come home. But Y belongs to a less merciful company. He embezzles; they prosecute and he is convicted. He is completely protected from anything we might say.
Let me take a third case, in my own experience—and a very sad one. A nation-wide association of youth clubs was looking for a new secretary. Among the applicants was a man whom I will call Z. I was asked if I knew Z. I did know Z. I also knew that he had had a conviction 10 years earlier for an offence of indecency against a male. Now what could I say morally? It was not the right job for him; he was not the right man for the job. But because he had been convicted, as I understand it, he would have protection under this Bill as it stands, and if I had said what I knew I should have been liable. I do not think I could have pleaded qualified privilege. Frankly, I am not very good at understanding Bills: I find them as difficult to understand as the Athanasian Creed. But I find that even my legal friends tell me that some of Clause 6 of this Bill is incomprehensible to them.
To sum up, my Lords, I recognise that this Bill, like the pamphlet, is inspired by the highest motives, and motives with which one must sympathise. Secondly, I think that if it were to pass into law in anything like its present form it would complicate still further this highly complicated law of libel which my colleagues and I were appointed to try to simplify. Thirdly, I repeat that although many deserving people would benefit from it, I am nervous about how many others who do not deserve to might benefit from it—people who would regard it as a mere cover for further misbehaviour. Finally, let me say again what I have said already. I believe that this part of the defamation law ought not to be treated in isolation, and I would ask your Lordships to have patience with our committee who are working very hard and earnestly to produce a really worthwhile report which would be a solid foundation for a new law of defamation.
§ 6.18 p.m.
§ THE MARQUESS OF HERTFORD
My Lords, every now and then there comes before your Lordships' House a measure which is so obviously right, so clearly just and so extremely necessary that one's first reaction is one of amazement that this is not already the established law. This, I feel, is such a Bill. I am quite sure that it is essential and long overdue. Until I heard the noble Viscount I also thought that it was a relatively short and simple Bill and one that was easy to understand, and I did not suppose that it would be unduly controversial. I feel that its merits are enormous and far outweigh any difficulties that it may create. If this Bill becomes law, a dark shadow will be lifted from the lives of perhaps a million people. My Lords, we do not every day have the opportunity to help so many.
I have the honour to be the Chairman of the New Bridge, a voluntary society founded by the noble Earl, Lord Longford, the official title of which is an Association of Friends of the Discharged Prisoner. In that capacity I of course welcome the Bill. But I must say that I am a little disappointed by the proposed periods of rehabilitation shown in Clause 3 of the Bill. Many of us who are concerned with the care and resettlement of offenders would like to see some hope held out to ex-prisoners who have been sentenced to more than two years. The periods of five, seven and 10 years suggested here seem considerably longer than is either necessary or desirable. A great many of the prisoners and ex-prisoners who come to the New Bridge for help have been sentenced to more than two years, and of course nearly all of them have only just left prison. To these people this Bill brings no immediate benefit. Their punishment will continue long after the sentence of the court has been served.
It would seem right to offer some hope of eventual rehabilitation, even to the more serious offenders. No doubt these details can be discussed at a later stage. I certainly do not want to say or do anything to delay the passing of such a useful Bill as this one. It is perhaps surprising to find such a very conservative measure coming from the noble and 768 learned Lord opposite. If he feels that nothing more radical is likely to be accepted by this Parliament, then of course I must bow to his wisdom and experience. I sincerely hope that your Lordships will give your approval to this excellent Bill and that its passing will not be long delayed.
§ 6.22 p.m.
§ THE EARL OF LONGFORD
My Lords, it is most agreeable to follow the noble Marquess, Lord Hertford, who at the moment is probably doing more for ex-prisoners than anyone, unless it be the noble Lord, Lord Donaldson of Kings-bridge, who was kind enough to mention me. I wish to speak briefly in strong support of this measure. Indeed, I cannot imagine a measure of penal reform introduced by the noble and learned Lord, Lord Gardiner, which I would not wish to support. I might even feel inclined to "sign on the dotted line", which perhaps is dangerous, even in his case, but naturally anything coming from him has a first claim on my allegiance. He has powerful support for the Bill, both in this House and in the preparation of it. So as far as I am concerned it comes with every advantage on its side.
I do not think this is quite such an easy matter as perhaps even some noble Lords who were speaking in favour of the Bill might suppose. I do not think that it is quite so easy that we can say, "Here is an obvious principle of which we are in favour and it is just a question of the lawyers working out the details". I believe that some of the points raised by the noble Viscount, Lord Colville of Culross, are fundamental points which force one to ask oneself—to use the language of the noble Lord, Lord Ballantrae—how far one is ready to have information of a certain kind suppressed and how far that is interference with human knowledge, which is usually regarded as a dangerous process. One has to face that fact and to make up one's own mind, not in a mood of sentiment, although sentiment is a fairly good guide, but to make up one's mind whether, on balance, one is in favour of a measure of this kind, and for my part the arguments for it are far stronger than any possible difficulties. I will not go into detail now. The noble Viscount, Lord Colville, and my noble friend Lord Shackleton, raised a number 769 of points which will clearly have to be answered. I would call them Committee points, and in that sense they can be answered during the Committee stage of the Bill. But they are points which one could not ignore and I am sure that the noble and learned Lord, Lord Gardiner, would not wish to ignore them.
I also wish to support what has been said by the noble Marquess, Lord Hertford, and I can assure the House that we have not been in any sort of collusion. This is not some New Bridge conspiracy. I did not know what the noble Marquess was going to say, although perhaps I might have guessed if I had been intelligent. I agree that this is a good Bill, but of course it does not go far enough. I agree with the noble Marquess, Lord Hertford, that no one is more imaginative or in that sense more radical in these matters than the noble and learned Lord, Lord Gardiner; and if he thinks this is as far as we can get on this occasion then it is extremely likely that he is right. But to say, as is said here, that no one who has served more than two years in prison is to receive any benefit at all under the Bill as it stands is to rule out completely a great many people who are in need of redemption and are in need of encouragement. All the language about "the shadow", which is good and eloquent language, applies to them, and indeed in a sense it applies to them more than to anyone else because the shadow is darker and deeper.
So I would not like anyone to suppose that this Bill goes far enough. But to be fair, one must point out that it lies within the power of the Secretary of State to extend the period, and so far as I am concerned I hope that he will not delay very long and that pressure will be brought to bear on him to extend the period. I agree absolutely with the principle which I have enunciated many times, that no human being is irredeemable, and I shall not be satisfied until this measure goes a great deal further and holds out hope even to the worst criminals. Nevertheless, I hope that this Bill will obtain a Second Reading and that it will not run into the kind of troubles at the Committee stage which the noble Viscount, Lord Colville, seems to envisage. I hope that it will go on the Statute Book and I am sure it will be a blessing.
§ 6.26 p.m.
§ VISCOUNT DILHORNE
My Lords, the noble and learned Lord, Lord Gardiner, moved the Second Reading of this Bill with an eloquence and clarity which one expects from him. It may suprise him to know that I completely support the object which he seeks to achieve, and I hope that whatever I may say after that he will recognise that his objective in this Bill is one that I wholeheartedly support, because I think it is wrong that a man who has been convicted a long time ago should have his career prospects wrecked many years later by the disclosure of his past conviction.
The noble and learned Lord told us that there were something like a million people who have not had a further conviction in the space of ten years after their first conviction. It is very gratifying to know that. One does not know, of course, how many of those have met with the kind of difficulties of which the noble and learned Lord gave us an illustration. One would hope not very many. But be it a small number or a large one I think we should do what we can to remedy that situation.
Where I part company with the noble and learned Lord, Lord Gardiner, is in thinking that this Bill, as it stands, provides the right solution to the problem. I must confess that in the light of the criticisms made of it by the noble Viscount, Lord Colville of Cuirass, in a speech which I thought was excellent in its clarity and also which condensed into a very small compass some difficult and intricate subjects and in which he could not justly be accused of advocating any particular course—it certainly was not an advocate's speech, nor, so far as I could judge, was he guilty of the slightest exaggeration—and in the light of the criticisms which have been made from other quarters I myself venture to doubt whether it is possible within the framework of this Bill to construct in a Committee stage the sort of measure which should go out from this House.
The first matter which I find it really impossible to accept is that to which the most reverend Primate drew attention, but it seemed to me that he did not really attach quite so much importance to it, as I do, because he spoke about it as being "one of the warts on the Bill". Here I refer 771 to the provision of which the noble Lord, Lord Shackleton, spoke—the provision legalising perjury, because that is what it does. Clause 2(a) provides that a man who has been convicted of a crime and who has gone through the rehabilitation period, or anyone else who speaks of that crime and who gives evidence on oath, shall not be liable to any penalty if he gives a false answer in relation to the question whether such a crime has been committed. To me such a proposal is wholly novel, wholly wrong and quite impossible to justify.
Having said that, as I am in favour of the object of the Bill, I have been giving some thought to the possible ways by which that situation can he avoided. I believe that it can be avoided but it means a radical alteration of this Bill and acceptance of one of the alternatives of the noble and learned Lord, Lord Gardiner—which, for reasons I did not find wholly convincing, in his speech he rejected: that is, (and it would also be far simpler) to provide that after the lapse of a certain length of time, without any conviction occurring within that period, the conviction (be it five, ten or 15 years ago) shall be deemed never to have occurred and should be treated as a nullity. It seems to me that if you so provide, and after that conviction has been wiped out by Act of Parliament, a person asked about his previous convictions can, if he is asked "How many convictions have you had?" in the light of the fact that he has had one conviction which has gone, say "I have none." But that result may need to be subject to the further qualification that you cancel those convictions for all purposes except proceedings in criminal courts. I do not see why there should be that exception. I am very doubtful whether it is really necessary to provide that judges dealing with these cases should be given particulars of convictions which have taken place perhaps 10 years before when there has been no conviction in the intervening period. I do not believe that people faced with the task of sentencing will pay any attention to a sentence passed so long ago; they will be inclined to treat that man, despite his previous conviction, as a first offender. So far as actual sentencing in the criminal court is concerned, and provided that the period 772 of rehabilitation was long enough, I doubt that it would matter at all if the cancellation affected convictions put before criminal courts for the purpose of sentence.
I shall not deal with social inquiry reports and matters of that kind. The noble Viscount, Lord Colville of Culross, dealt with those very fully and met a great many of the difficulties. Nor shall I deal with the periods of rehabilitation proposed. Of course, as the noble Earl, Lord Longford, has said, this Bill covers a rather narrow field, namely, only those sentences of up to two years in prison. I feel that I should ask the noble and learned Lord, Lord Gardiner, to consider the disparity between the periods to be undergone for rehabilitation. It seems to me that a five-year period of rehabilitation when the sentence does not exceed six months imprisonment, and seven years for a sentence of two years imprisonment, shows a certain lack of proportion.
Having spoken about what I feel to be one of the major defects of this Bill, namely, the statutory perjury which it proposes, I come to one or two matters which I hope the noble and learned Lord will have a look at before the Committee stage. One of the difficulties about the operation of this Bill is that no one, apart from the convicted person who may get a certificate, will probably be able to find out whether or not he has been rehabilitated; and whether the period has elapsed. How will the ordinary member of the public know that? The period may be extended. If the man commits a further offence during the period, the period is prolonged. In that connection I feel that the Bill is a little harsh. The Bill says that the second offence must be of an indictable character. Supposing it is. Supposing it is dangerous driving in the fourth year of a rehabilitation period that will expire in five years. Is it right that that shall extend the rehabilitation period of a conviction for theft four years or so before?
I feel that more thought—and I say this with the greatest respect—ought to go into this measure. I should like to see the kind of offence which will extend the rehabilitation period to be one either of dishonesty, or of violence, or of a sexual character, or something of that kind. I would exclude indictable offences 773 such as dangerous driving from having that operation and those consequences. When one comes to the position of the ordinary person, it will be very difficult for him or her to tell, or remember, whether or not the rehabilitation period of a particular person is over. It is one thing if that conviction is talked about or published years after the event in the Press only to effect sales, but an entirely different matter when particulars are given because someone wants a reference. I am glad to know that the noble and learned Lord, Lord Gardiner, wants fully protected references given in good faith.
I do not think it is possible to deal with the defamation provisions—if you are going to have this Bill—only after receiving the report of the Committee on the Laws of Libel of which the noble Lord, Lord Ballantrae, is such a distinguished member. That is a committee before which I had the pleasure of giving evidence, and they gave me a very rough time. But that is by the way. If you are going to have this particular scheme you must have some provision for dealing with defamation, and I do not think that this one will do.
I admit that I am puzzled in my mind as to what is a satisfactory alternative. The man who perchance says, "So and so has been convicted", after he has been rehabilitated, will be liable in damages. He will have no defence of justification, as the noble Viscount, Lord Colville of Culross, said. He will not say, "I am not liable to pay you anything because what I said was true." That defence is taken away by Clause 6. But it is said that he can have the defence of absolute privilege or of qualified privilege. Qualified privilege will arise, as the noble Lord said, where he has spoken without malice; and where there is that plea the question of malice will arise, and he will say, as the noble Lord said, "I honestly believe what I said." Is he to say, as I gathered from the noble and learned Lord, Lord Gardiner, that he was to say, and could say in answer to that point: "I honestly believed that because I read it in a newspaper"? That is only another way of saying, "I honestly believed it because I knew it to be true." If that can be said on a plea of qualified privilege, what nonsense it makes of not being able to say it unless you plead qualified privilege.
§ LORD GARDINER
My Lords, would the noble and learned Viscount consider whether there is any difference in this case between what we propose and the present law? The present employer is given a reference and is always told by his lawyers: "You need not plead justification; all you have to show is that you honestly believed it to be true, and if you are asked why, you can say so." All we are proposing is that this law should stay the same.
§ VISCOUNT DILHORNE
My Lords, I do not believe that the Bill does that. The Bill says that you cannot give any evidence tending to show that a person has been convicted; and if that is so you cannot go on to say, "I honestly believed it because I knew he was convicted." That seems to be a nonsense. I believe that a better approach would be to pursue what I call the cancellation approach, giving limited use, despite the cancellation for certain purposes—but not many—for statistics, research and that kind of thing where the use will not gain publicity but dealing specifically with the reference question and dealing with it as a separate subject.
I believe one can produce a workable and satisfactory Bill. I am very doubtful indeed whether it can be done by amendment of this present measure. Supporting the noble and learned Lord, as I do, in his objective—and I hope he will accept that I do support it—I hope that he will give serious consideration to the question thrown out by the noble Lord, Lord Shackleton, that this Bill should be considered by a Select Committee in an endeavour—everyone here has spoken in favour of the principle—to find a more workable solution than this Bill provides.
May I say, in conclusion, that I hope the noble Lord will forgive me because I have another engagement, and I am sorry to say that I shall not be here for his reply. I think this is the first time I have ever said that. If he says nothing in reply to what I have said, I will understand.
§ 6.41 p.m.
§ LORD WELLS-PESTELL
My Lords, I rise to add my support to the Bill presented by my noble and learned friend Lord Gardiner. I hope the noble and learned Viscount who has just sat down will not think me impertinent if I say how 775 much I myself appreciate his sympathetic and understanding approach to this Bill. It may be a bad Bill—I would not know; I am concerned only with what it seeks to achieve. I hope that noble and learned Lords like the noble and learned Viscount, Lord Dilhorne, and other distinguished lawyers in this House will give their time and attention to converting it perhaps into a workable Bill, so that the principle behind it does in fact come into being.
In my opinion, it is very appropriate that a Bill of this kind should start in your Lordships' House. In the years that I have been a Member of this House many goods Bills have emanated from here and have become Acts of Parliament. I need not go into them. But perhaps this House has been more far-seeing than another place when it comes to measures for the welfare and the happiness of people generally. It is for that reason that I hope this Bill will not be referred to a Select Committee, because I think that would limit the number of people who, like myself, would wish to participate in it. Even though we could not do it on a legal level, we could perhaps make some contribution at a sociological level. Having said that, I must say that the noble Viscount, the Minister, depressed me. There has been no collusion between my noble friend Lord Donaldson of Kingsbridge and myself; we have not discussed the Bill. I had hoped that after the noble Viscount had, quite rightly, pointed out the pitfalls and set out very clearly, as he always does, what this House ought to be directing its attention to, he would have finished by saying that he and his Department would direct all their energies towards improving the Bill and making its purpose feasible.
If I were asked why I support the Bill, I should reply that it is for a very simple reason. For many years, as your Lordships know, I have been interested, concerned and involved in the Probation Service. I have sat regularly for something like 26 years as a lay magistrate, and have had the privilege of sitting in the last year fairly regularly in a Crown Court. This means that I, along with other Members of your Lordships' House, have had direct contact over the years with a good many delinquents. I know 776 what society has tried to do for them. I know what Governments have tried to do for them, and we who are working in the field of the ex-offenders are very grateful to this Government for what they have done in the last few years and for the money they have provided for these things to be done. We are most grateful. I know that my noble friend Lord Donaldson feels precisely as I do about this.
We are doing a great deal by way of social rehabilitation. Is it not time that we began to direct some of our energies, some of our thoughts, towards providing opportunities for legal rehabilitation? I do not want to go into the disadvantages that ex-offenders are under, because this aspect has been adequately covered by my noble and learned friend. I do not suppose many people outside will believe that some offenders go on offending because they believe they cannot live down the past. But they do. Many feel they cannot live down the past, so why bother; and so they go on and on. This may be true of only a very small percentage, but this attitude of mind does exist. Many of these people live in fear of their past coming to the surface, and of much that they have done being undone. I feel that, having done so much on the social side, we ought now to be concentrating on providing opportunities for legal rehabilitation.
At this stage I do not think I am competent to enter into the field of discussion with regard to the various matters which the noble Viscount the Minister has raised. I hope that we can do this in Committee, and that the Government will come forward with sufficient Amendments to make this Bill workable. I believe it is of supreme importance that, however inadequate or deficient this Bill may appear to be to those who are better able to make a judgment, it will be made workable, because it is in the interests of the community that we should do so. I think we ought to give people an opportunity of living down their past, of being able to wipe it out completely and entirely. I am sure that this is the sort of step that we ought to take at the earliest possible opportunity.
§ 6.48 p.m.
§ LORD GOODMAN
My Lords, the noble Lord who has just spoken I think 777 said precisely what needs to be said about this Bill, because he emphisised the realities of it in contradistinction to the technicalities. This is a humane and coinpassonate measure that we ought to try to enact if we possibly can. It has be-en my experience that if you want to make some progressive move you nearly always encounter formidable procedural difficulties. I do not think we ought to be deterred by procedural difficulties from achieving the objectives of this Bill, which the noble and learned Lord, Lord Gardiner, if I may say so, has so convincingly presented in point of principle.
When I heard about the Bill and looked at the text, it was quite clear that there were considerable difficulties, and the noble Viscount, Lord Colville, has presented them with great skill and ability, even with a faint gusto, if I may say so. But I am sure that that does not mean that he is not strongly in support of the measure. There are difficulties, and I think it must be very encouraging to the noble and learned Lord, Lord Gardiner, to have heard assent on almost all sides to the principle—because we all accept the principle—and I am sure that if we put our heads together we cannot fail to achieve a measure that will make this modest change in our criminal jurisprudence.
I believe that one of the major defects of the Bill is that it has been too conscious of the technical problems. My own view is that it might well be that in the end it will be necessary to exclude altogether from the Bill considerations such as defamation; and even to exclude from it any penalty for the unauthorised disclosure of a conviction. I would venture to suggest to the noble and learned Lord, Lord Gardiner, that there is an objection in principle to imposing a penalty because someone has disclosed the fact that another person has a conviction. I think the objection in principle is to making the appearance of the conviction seem even worse than it is. If it becomes a dark secret that people may not speak about except under the threat of possible prosecution and very dire penalties, I am not sure that in a way we do not make it worse in the sense that we convey to the minds of people that there is something rather awful about this conviction that makes it necessary to bring the man 778 to the Old Bailey if he is foolhardy enough to disclose it.
A point that I would venture to suggest the noble and learned Lord might consider at the Committee stage, is that really it is not necessary to impose penalties but that what one really wants in essence is that a man should not be obliged himself to have to disclose the fact that he has a conviction, and that the record of the conviction should no longer be extant. This would achieve everything that is really required.
I have a feeling that when we come to the question of defamation, and how one seeks to defend an action where someone alleges that a conviction has taken place, we shall be pursuing the most difficult course and end up with the most complicated legislation, and not really have achieved a great deal. Hence I believe that what we want to achieve in this Bill can certainly be achieved by ordinary Committee processes.
It is a very short Bill, and I do not think that it is necessary for us to make quite such a mouthful of it as to send it to a Select Committee. I am quite sure that appropriate Amendments, which might even involve the substitution of totally new clauses, can be dealt with in Committee, and that we shall be able to bring about a modest measure of social reform about which we shall all be very contented. I see that there is no longer a Bishop on the Bench, but may I say that in this way we shall demonstrate that the quality of mercy can exist on this earth as well as in heaven.
§ 6.52 p.m.
§ LORD HUNT
My Lords, I rise to speak now and not in the place shown on the list of speakers, at the request of the noble Viscount, Lord St. Davids, who had not expected to be back in his seat in time. I understand that I am in order by agreement between the Whips on both sides of the House.
As one who had no legal training—and this, I have no doubt, is well known to your Lordships—I confess that the first time that I heard of a principle and a system by which a citizen could be spared from the prejudice arising out of his criminal background was during a visit to Israel in 1970, when I met Professor Feller, of the Hebrew University in 779 Jerusalem, who told me of his own researches into this subject in countries on the Continent of Europe. He very kindly sent me a copy of his treatise which was, unfortunately for me, in Hebrew, so I promptly sent it on to the noble and learned Lord, Lord Gardiner, who no doubt had no difficulty at all with the language. Had I known of his interest, I would have sent it to the noble Lord, Lord Janner, instead.
I rise, like all other noble Lords whom I have heard to-day, to say that I support this Bill in principle, although as a result of earlier speeches I am now wiser than I was about some of the snags which have emerged. May I make two brief observations, the first of which has been made already, but I should like to add weight to it? From a background of reading thousands of dossiers of the cases of prisoners for parole in the past five and a half years, I believe that the two-year sentence, beyond which this Bill does not propose to allow for rehabilitation, is too short. It could be extended to 30 months, or anything short of three years, in my opinion, without detriment. It is possibly of interest to know that there are in our prisons at the moment over a thousand prisoners serving a sentence of over two years and under three years, and when one adds up the total it would no doubt add considerably to the million citizens who have served sentences of two years or less mentioned by the noble and learned Lord, Lord Gardiner.
From my experience reading these cases, offences commanding a sentence of three years are of the same order of seriousness as those of two years. The three-year sentence is the divide which we, on the Parole Board, have seen for some time, broadly speaking, as the divide between the more serious offences and the less serious ones. Of course I am talking strictly in the context of the consideration of a person for parole. Sentences within this rather wider bracket, in my experience, normally represent much the same order of seriousness as those of two years. They also reflect the considerable variation in sentencing by the courts, and they often include a breached suspended sentence which, I think many of your Lordships will agree has not always in the past been wisely imposed. Sometimes such sentences 780 have been imposed unfairly, in terms of the stress to which they have subjected offenders; nor has proper support been given to them to stand up to that trial. I should like to see this somewhat bolder approach. I should like to see a 10-year gap, following a sentence of under three years, as causing a criminal record to be "spent". I hope that some Amendment to this effect may be made to the Bill when it goes into Committee.
I should like also to be reassured on one point. In the document, Living it Down, at pages 11 and 12, Lord Gardiner's Committee have not followed the Continental practice of expunging or cancelling, or destroying, the record—and the noble and learned Lord referred in his speech to this aspect. Does this mean that under the terms of this Bill the record will be available to the Parole Board and the local review committees when we are considering prisoners for parole, even though that criminal record has been spent? There is no mention of this point in Clause 5(3) of the Bill, but I certainly think that that record should be available to us. This is a slightly different point from the one made by the Minister when he was speaking about the home surroundings, although I agree with what he then said.
Substantial gaps in recorded offences are normally, and naturally, viewed by ourselves as a factor in a prisoner's favour when we are deciding on parole, and this is especially the case when we are looking at the record of a recidivist, where particular credit may be due to an inadequate and insecure offender for keeping out of trouble even for a year or two. I have in mind one or two people now serving their sentence in the community on parole for very long periods. Considerable risk was taken in granting them parole, but so far they are holding out and have not got into trouble again. One would like to think that we have gives, them credit for the gaps in their back ground. Of course there are some cases in which we are sceptical about the reality of those gaps, because, as everybody knows, not all offences are uncovered and brought to the courts.
I have made this point to allay any fear that the availability of a prisoner's con: victions to the Parole Board, despite a successful rehabilitation period, might pre- 781 judice a man's chance of parole. It would not—with one possible exception, which I mention simply to stress the need for the Board and the local review committees to have the full record, no matter what the interval of time is. This exception is that of the sexual offender. Of course I am not thinking of the sort of woman referred to by the noble and learned Lord, who was guilty of soliciting in the distant past: I am thinking of the sexual offender who uses some violence, and particularly the sexual offender against children. It may be significant, in the case of a prisoner serving currently a prison sentence for such an offence, to note that even as long ago as 11 years or more there was a previous and similar offence, or perhaps more than one offence. I am pretty sure that my eminent psychiatrist colleagues on the Board would support me in saying this. Certainly it is my experience over the past several years that this is something we must take into account before we decide whether it is appropriate to parole a person. Perhaps the noble and learned Lord, Lord Gardiner, would support me on this point, and consider amending the Bill in this sense. In all other respects, I support the principle of the Bill as strongly as any of your Lordships who have spoken so far.
§ 6.59 p.m.
§ LORD VIVIAN
My Lords, we have had a very interesting and informative debate this afternoon on the Second Reading of this Bill. Like many other noble Lords, I feel that great credit is due to the noble and learned Lord, Lord Gardiner, for introducing it into your Lordships' House, and I owe him my apologies for not having replied to a letter received from him concerning this Bill. In apologising to the noble and learned Lord, I can only say that inadvertently his letter came to hand only two days ago. So in an attempt to make amends, I thought I should make a special effort to speak this evening.
This is a subject which interests me a great deal. It is not a Party issue, but it is an important issue concerning humanity. In this country, due to the research of Justice, the Howard League for Penal Reform and the National Association for the Care and Resettlement of Offenders, it would appear that at last we have guidelines for this Bill, which suggests legislation whereby we can- 782 and, I would add, should—accept back into the community a person who, despite a conviction, goes straight for a number of years. I understand that at the present time the United Kingdom is the only member country of the Council of Europe which has no legislation on the Statute Book to help the citizens whom we are discussing this evening. I hope I use the term "citizens" forcefully. In my opinion—and I trust that it is also the opinion of many of your Lordships—the citizens whom we are trying to help by this Bill have, through living down a previous conviction, earned the right to be fully accepted into the community again. I submit that it is inhuman if we do not legislate for this.
Are we in your Lordships' House to turn our hacks on them? No, my Lords; it would be unthinkable. I would go so far as to suggest that we in this House would be failing in our duty if we did not legislate to help these people to regain their full rights as citizens, when, through their own efforts over a period of from five to ten years, they have lived down their conviction. I agree with Clause 3, which lays down different rehabilitation periods geared to the original sentence imposed, but I would beg your Lordships to give these people a chance of having the slate wiped clean, which I think is the main intention of the Bill. Is it right that we, a progressive country, should be one of the very few who do not have rehabilitation laws to expunge from the record the first offence of a juvenile, or for that matter of an adult, or second offence by either a juvenile or an adult?
My Lords, the hour is late and we have had many interesting and informative speeches, especially from the noble and learned Lord, Lord Gardiner, who introduced this Bill so lucidly. So may I say in conclusion that my noble friend Lord Colville of Culross quite correctly criticised some of the drafting and content of the Bill, and I am in agreement with him on some of his points. But I hope that both noble and learned Lords can get together to perfect this Bill, which I consider can, in its right form, relieve great hardship and prove to be one which can be of great benefit to the cause of humanity. I therefore hope that your Lordships will give this Bill a Second Reading.
§ 7.4 p.m.
§ LORD SOPER
My Lords, in rising most enthusiastically to support the principle of this Bill and to advocate its Second Reading, I remind myself that this is an attempt to put into legal constitutional form an article of moral philosophy. Therefore, it surprises me a little that more has not been said about the nature of that rehabilitation for which this Bill seeks to provide the appropriate measures. It was adverted to, of course, by the most reverend Primate the Archbishop of York, and there was a penultimate aspiration about it in the speech of the noble Lord, Lord Goodman. But if we believe that there must be a place in all penal administration for the process of reformation, then we are committed to the subsequent principle that there must be a place for forgiveness; and forgiveness is a process by which the past is, if not obliterated, disregarded as having no further impact upon either the present or the future in the life of the man who is forgiven. This Bill is an exercise in both justification by faith and justification by works, and it seems to me to be much better able to deal with this problem than some of the ecclesiastics have been. But it certainly means that the beginning of a new life must be the ending, in principle, of that life which has preceded it.
It occurs to me that a number of the very real problems which arise in the implementation of the principle behind this Bill are problems which arise precisely because the concept of real forgiveness is a much more absolute concept than perhaps we are inclined to think. I would say, with some diffidence, that Charles Wesley has said this very well in a hymn in which he records the words:He breaks the power of cancelled sin and sets the prisoner free.There is a manifest difference between the august author of that blessing and the authors of this Bill, but nevertheless it contains two principles which are identical. One is that a sin can be cancelled, a crime can be cancelled, but unless the prisoner thereafter is free then the impact of that crime continues. This has been referred to again and again in your Lordships' debate to-day, and is a very real and an absolutely vital element in our consideration.
784 I hope, therefore, that the real concept of the new beginning will be regarded as the primary objective of such a Bill as this, and that the various practical difficulties which arise will not be considered sufficient to relegate this Bill to any kind of dustbin because it is inefficient. I think it is inefficient in many respects, but your Lordships are embarking upon a principle which, in fullness, has not yet been appreciated, which is a very radical and, from the standpoint of moral philosophy, completely new idea, as represented, I suppose, in British law, of what we regard as the new beginning and of how we regard the total ending of the processes and the impact of punishment, which after expiation and reformation, and indeed penitence, makes a new man. This has an immediate impact upon the concept of forgiveness for those whose prison sentences have not been as much as two years, when the same principle is denied under the Bill to those whose offences have attracted longer sentences. This is a very dangerous thing to do, and I hope very much that we shall not divide miscreants into those whose sins can be forgiven and those who have committed unforgivable sins.
I am sure that this is a matter which can be resolved in the processes of debate and in Committee. But it would be disastrous if we endeavoured to drive a wedge between those who find available to themselves this kind of reparation and opportunity, and those who, because their sentences are longer though their crimes may not have been more grievous, are denied this opportunity. Furthermore, if we consider this concept of forgiveness and the beginning of a new life in such a way as to regard the prisoner or ex-prisoner or ex-convict as now blameless—and this is the only kind of word which can really fit the case—. then I am sure that the noble and learned Viscount, Lord Dilhorne, was right in suggesting that it will not be beyond the wit of this House to devise words which can express the difference between the fact that a man has in the past committed errors, sins or crimes and has justly been punished for them, and the fact that he must now be regarded as a new man and that the past must not be held up against him.
785 I am sure that there is a real importance in one other matter—and because the hour is late I shall talk about only one other matter—and that is the question of certification; the idea that a man who is convicted of a crime and is about to serve or is in the process of serving his sentence will be furnished with a document. The noble Viscount the Minister referred to this as something of evidential value. I think the value of it is much more personal and much more psychological than evidential. In my experience as a prison chaplain, I have come across how little heed is paid to verbal assurances, and how much even a very small piece of paper can be treasured. I should like to see this document set out in the most impressive style, because I am completely satisfied that in many cases it will be a source of comfort, inspiration and incentive to those who can take it out of their pocket from time to time and look at it.
I should like it supplemented—and I think this is very important—by a certificate at the end of that process. If I may delay your Lordships a little, I remember one occasion when, in the open air, I was talking about this and that, and a man in the crowd said, "The trouble with you parsons is that you are all mad". I resisted that, but he went on and finally said, "If you are not mad, can you prove you are not mad?" I found that a bit "dodgy", and hoping to play for time I said, "Can you prove that you are not mad?" He said, "I can", and he did: he produced his discharge certificate from a mental institution. That is not entirely apposite, but I thought I would drag it in. At least it confirms in my own experience the value of the definite statement which can be read again and again and is not merely of oral tradition, which, as everyone with any historical background knows, is extremly dangerous.
I believe that this Bill is a very good Bill in its intention. I think it strikes new ground. I think that theologically, as well as in general terms of moral philosophy, it is compatible with what Christians ought to believe. I think it has many difficulties; and I have listened with great care to the presentation of the technical disadvantages or difficulties within it. But I am sure that it ought to have a Second Reading; and I would 786 echo words that have already been said, that within that Second Reading it is possible, if we hold fast to the principle of the Bill, to work out the various processes by which it will become effective and, I believe, of great value in the community.
§ 7.13 p.m.
My Lords, let me say at once that the expression of opinion which has just been given vent to by the noble Lord, Lord Soper, as to what is a Christian outlook is certainly a Jewish outlook as well, and I strongly commend what he has said to the consideration of those who are still left in the House and to those who may read it to-morrow. I think the position as it stands at present is really an alarming one. It is high time that this matter was dealt with; and in my view my noble and learned friend has rendered a great service to us and to the country by having introduced this Bill and by having preceded the introduction by going very carefully, as is obvious from the report which has been issued by his Committee, into the circumstances relating to the matter and the method of dealing with it. I would say to the House that we are very considerably indebted to my noble and learned friend, whose advice in other respects many of us have sought, at very much greater expense than has been placed upon the shoulders of this House. When a situation perhaps as significant as this has arisen, we have relied on his judgment and his manner of handling the matter in the definite certainty that he has given the fullest consideration to the points involved.
I am satisfied that this Bill forms the basis of what we need, and I sincerely hope that not only shall we give it a Second Reading but that we shall give it enthusiastically, so that in the end, when it has passed through its Committee stage, we may have a Bill which will please, I hope, all the Members of this House. The idea that a sentence, once having been imposed on an individual, remains with him, as it were, from the moment of sentence "until death us do part", has to be destroyed. Once a man has in fact served his sentence and has satisfied all the needs of society in respect of the crime which he has committed, he is entitled to live in a free world, free from what has been hanging over his head. In 787 my view, the success of the three periods of rehabilitation—that is, in custody, during after-care and when free in the world—depends on one essential factor: the finding of work for the ex-offender. In this respect, of course, the Bill has a very important part to play. But I go further. In my opinion we should have a provision—I do not think it will be very acceptable to the Government; perhaps it may be a far-reaching idea—that would enable the Government of the day actively to help in the rehabilitation.
One of the chief drawbacks to employers offering work to ex-offenders is the difficulty of their not being able to be covered by a fidelity bond. Many employers would gladly employ such people if the Government or some responsible body would bond the offender. If it could possibly be done, I should like to see inserted in this Bill a clause empowering the Government to bond such offenders as, after proper inquiry, they can find reason to believe will not be recidivist. I should like the Government to say that they would then bond such persons. Let me give, as an example of such a provision, the case of a man who went to a Bridgehead House which, as your Lordships know very well, is a place which provides a home for ex-prisoners, enabling them to live in proper circumstances while they seek to go to work. This man had a wife and two children, to whom he was hoping to return when he had established himself in a job. He gained a post as a salesman and was doing well until he was asked to take out a fidelity bond. This he could not secure owing to his past record, and after nine days he was dismissed. That was in June, 1972: and he has been unemployed since, with his family on social security. He has now changed his name by deed poll to try to overcome the difficulty, but, of course, everybody in this House knows that this kind of thing can be held against him.
When I was listening to the noble and learned Viscount, Lord Colville, I thought he was finding every conceivable reason why the Bill should not be given its Second Reading while at the same time commending it to the attention of the House. Of course there are difficulties. We are changing from one set of ideas to another; and since we are looking for a 788 way in which to give an individual a chance in life, a chance to which, as I have said before, he is entitled, having paid the penalty and having fulfilled the obligations placed upon him, there are bound to be difficulties the nature of which has been raised. I am sure they can be overcome. All other Governments have overcome them. I am sure I am quite wrong but I thought the noble Viscount was talking as though he had no knowledge of the fact that legislation in this respect had been passed in so many countries—and certainly, I believe, in the countries that we are going to have close connections with and are already having close connections with in Europe. Nobody has suggested that these provisions have failed hi their objective.
I was going to suggest to the noble Viscount if he had been here, that he might go into some of the provisions which are in legislation in these countries. One noble Lord mentioned Germany. The question of a man stating in court that he has no convictions has, in fact, been passed into legislative being in Germany. It happens to be in the provisions operating in Germany and, I believe, in France. Rehabilitation wipes out all the convictions and all punitive incapabilities. The conviction is not mentioned in extracts from the criminal records, and (here I quote):legal fiction is created that the reinstituted person has not been convicted".It worked in France. I know that we are not the same as the French. We may differ in our outlook from some of the countries that pass these laws; but they cannot all be wrong and we be right. In the course of the Committee proceedings we ought to investigate what they have been doing and see whether what apparently has been successful in those countries should not be brought into use in the Bill itself. I am glad the noble Viscount, Lord Colville, has come back. I appeal—
VISCOUNT COLVILLE OF CULROSS
My Lords. I apologise to the noble Lord. I was talking to a very important member of the team behind the Bill. I was not wasting my time.
My Lords, I do not for a moment blame the noble Viscount; he has been here throughout the proceedings. With his, if I may say so, brilliant 789 approach to matters (and I have had occasion to sit under him in Committee; so I know), I hope that he will find it possible (either himself or together with his very useful helpers) to devise an appropriate method of dealing with the points he raised. Perhaps he will go into the provisions of the Acts which are in existence in the other countries and see why they work—because they do. There is no suggestion here that what the other countries have been doing has gone wrong. Therefore, there must be a method of meeting many of the points he raised. I hope he will give enthusiastic support to the Bill because I believe that a question of time is involved here. It is high time and very important that we should deal with this problem.
I am going to make another suggestion which I hope will not upset even my noble and learned friend. I am not happy at all about the two-year limit. I hope it will extend to those who have served sentences for more than two years. I cannot see why there should be a two-year limit. In this connection I would draw the attention of my noble friend to the Criminal Justice Act 1961. Section 3 reads:Without prejudice to any other enactment prohibiting or restricting the imposition of imprisonment on persons of any age, a sentence of imprisonment shall not be passed by any court on a person within the limits of age which qualify for a sentence of borstal training except—In a case like this the two-year limit would act very heavily against a person; because apparently the court has no alternative but to impose either a six-months sentence or a three-year sentence. This may be a very exceptional case, but I came across it in the course of my inquiries. I think it is interesting and one that we should consider.
- (a) for a term not exceeding six months or
- (b) (where the court has power to pass such a sentence) for a term of not less than three years."
Under that section young people so sentenced would automatically be outside the provisions of this Bill. It may be that the limitation is a concession to public opinion. We know that there are certain views held by a large number of the people on how crime should be dealt with. I remember the great fight on the question of the death penalty. I hope it is not a concession to them. I think we 790 ought to consider the limitation. The Living it Down Report suggests that rehabilitation following sentences of over two years might be possible by application after the period prescribed. I would strongly commend that that possibility be considered carefully.
Clause 6(2)(b)(i) could defeat the objects of the Bill. Names can be mentioned in textbooks or articles for educational, scientific or professional purposes. I should like to see this altered so that professional articles and textbooks could mention the date and the court but not the name of the convicted person, once he has been rehabilitated. I do not know whether that is a practical suggestion, but I think it ought to be considered. Reprints after the date of the rehabilitation would require to have the name deleted. That would solve some of the problems about referring to previous cases.
I should like next to refer to the form of the certificate. In the Schedule, paragraph 6, referring to reconviction, says:If you have been convicted before, and a similar certificate was given to you, then you will become a rehabilitated person…"—This is a technical point. I hope your Lordships will not mind my referring to it—both in respect of that other conviction and your conviction to-day on the later of the two dates given in paragraph 3 of the two certificates, but only if you fulfil the conditions set out in both certificates.Paragraph 3 says that certain conditions must be fulfilled in order to be rehabilitated. These include paragraph 4(b), which gives the conditionthat you do not commit any other offence on or before the date given in paragraph 3…Paragraph 6 says that a person must fulfil the conditions set out in both certificates. This, in my view, cancels out the provisions of paragraph 4. I make this technical point in conclusion, and I hope that the House will consider this a matter of extreme urgency.
I practised as a solicitor in the courts many years ago, and in a solicitor's office one really gets to know what people think. In my experience in the courts there must have been a considerable number of people who, if a law of this description had been in force, would never have gone back to crime and who were forced back to it simply because the world would 791 not accept them. I think we have to provide an opportunity for them to be re-accepted into society. It will save them and their families, and taking the example I have already mentioned, it will save the State a considerable amount of money by preventing them from becoming charges on various national funds. This is a human Bill that is needed. It may have faults, but whatever the faults are, I think we can rectify them, and I hope that your Lordships will give it a warm welcome on Second Reading.
§ 7.32 p.m.
VISCOUNT ST. DAVIDS
My Lords, I want to speak to-night for three reasons: first of all, because this is a good Bill; secondly because on the parts that I know something about, those relating to juveniles, I feel even greater enthusiasm for the Bill; and thirdly, because I have a private duty to perform. I will not speak in general support of the Bill because I strongly dislike repeating other men's speeches, but on the subject of juveniles I think I have something that I should add. If a juvenile comes before the court and is convicted, it is of course partly his fault: but in these days, to a large extent, it is very much more the fault of his family, and maybe of their advisers. It is a common practice in these days, which I strongly support, not to bring a juvenile before the court except for some special purpose, and there are many juveniles who, although they have committed precisely the same offences as those who are brought before the court, are not brought before the court and therefore are not convicted. So that a juvenile's conviction is not necessarily very much related to what he has done, but much more related to his background, his family and perhaps their advisers.
My Lords, in the course of my seven years at a children's club I have seen many children go before the court, and a few I have had to send there myself. A great many, thank God!, I have managed to save from going to court. But I have one particular case in mind which occurred fairly recently. Two boys took a boat without the owner's consent—the offence, as we all know, under the Theft Act, of taking and using a vehicle. They had confessed to two different sets of people; there was full identification, and 792 no doubt at all about the offence. I wrote to the parents. The mother appeared with one boy. The matter was admitted, with the consent of the parents; it was dealt with out of court, and the court never heard the boy's name.
That afternoon the father of the other boy appeared, with the boy. Regrettably, he was a father of the type that one finds occasionally, who was quite convinced that his boy always told him the truth—and I rather suspect the reason why the boy did not tell him the truth was because lie would be far too severely dealt with if he did. The father refused to hear any evidence, even plain evidence, which was a matter of geography which he could have investigated simply by looking at it. The father was convinced that his son was innocent. and nothing could be done about it. For that reason, we could not even use the admirable provisions that now exist by which a boy can be warned by the police. Unfortunately, this course cannot be adopted without an admission of guilt, and of course the parents' consent. In this case even that admirable and useful power was denied to us. Short of letting the boy go, nothing could be done but to put him in front of the court. This was done; the evidence was quite clear, and the boy was convicted. It was a minor offence—although a little more important than it looks, because if a boat is left adrift it can become a killer of small children—and the boy was convicted through no fault of his. I only hope that the most careful provisions will appear in this Bill to make sure that that kind of conviction is removed from the boy's record at a very early date. I am not sure whether the noble and learned Lord, Lord Gardiner, can tell me whether a police warning can be struck off—or perhaps it does not appear.
VISCOUNT ST. DAVIDS
My Lords, that is better still. Hearing that, and with that one point which I wish to bring out, that is all I wish to say about this Bill. However, I should like to tell your Lordships that I intend to send a copy of my speech to the father of that boy, because I feel that I got him convicted. In that I did my duty, but I should not consider that I had done my whole duty 793 if I did not do my utmost to get that conviction removed from the boy's record at the earliest possible moment.
§ 7.38 p.m.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)
; My Lords, before the noble and learned Lord, Lord Gardiner, garners in the sheaves of almost universal acclamation with which his efforts this afternoon have been greeted, perhaps he would listen with compassion to one or two rather critical things that I should like to say so that he may take them into account. No one who has read the Justice pamphlet or heard the noble and learned Lord this afternoon—and I have done both—would doubt that he has a very real problem here, and one which needs tackling constructively There are a number of different points that he has made, I think of varying importance, but certainly which might yield varying results. The first is the sentencing problem. I think everybody would be agreed that when a man comes up for sentence it is abominable for many irrelevant and past convictions to be read out against him. The only point about that I would make, quite briefly, is that that could be dealt with much more simply than by this Bill by simply prohibiting it administratively. That, at any rate, is the purpose of the circular to which my noble friend Lord Colville referred. I am bound to say that I am surprised that this has not been done before. I am equally doubtful as to how great an evil the evil is, because my experience has been rather similar to his namely, that judges and magistrates have the wisdom and humanity to prevent an error of that kind being made, unless a very inexperienced police constable happens to be giving the antecedents.
Secondly, the noble and learned Lord has made what I think is an absolutely valid point—the pamphlet makes it at somewhat greater length—about cross-examination as to credit in civil proceedings. I want to say straight away that I believe judges and advocates are much too lax about this matter. Judges ought to be much more stern in dealing with cross-examination as to credit, and advocates ought to be much more restrained and careful about the use of what I might call discreditable incidents they may 794 happen to know about the opposing party. There is less justification than ever for reckless cross-examination of this kind now that the main body of civil proceedings is tried by a judge alone—and the judges are usually wise enough to disregard certain matters. However, damage might be done outside the court if cross-examination is permitted.
The only two points I make about that is, first, that this could be done entirely without legislation—that is, by a greater degree of self-discipline on the part of the Bar and a greater degree of severity on the part of the Bench against members of the Bar who forget their duties and responsibilities. Secondly, it is not by any means confined to previous convictions. I should like to return to this because it leads me very much to the heart of the matter of the mischief to be discussed, which is living down disreputable incidents in one's past. The truth is that this is not confined to previous convictions. It can be a finding of guilt of some kind in a civil proceeding; it can be a finding of guilt in a matrimonial court or affiliation proceedings, or it can be something disreputable which did not ultimately result in any proceedings of any kind.
I think that most of us in this House would agree that it is abominable to rake up incidents out of anybody's past, whether there are convictions or not. I want the noble and learned Lord who proposed the Second Reading to bear that in mind when I come to say what I have to say, because my view is that there ought to be some legal protection against the resurrection of disreputable incidents after a certain time, whether there are convictions or not. It may be that it ought to be made a summary offence to publish episodes, true or false, of events coming out of the past. It may be, again, that it ought to be a tort, yielding an action for damages; or both of them. But the fact is that, for reasons which are perfectly intelligible if one reads the pamphlet but the logic of which is not absolutely plain to me, the sponsors of this Bill have made two classes of humanity: those who have been convicted of a crime and who are put in a privileged position, because their past may not be resurrected (although they are, of the two classes, probably the less meritorious), and those 795 who have not been convicted of a crime and who are given absolutely no protection at all. I think that is a serious criticism of this approach to this Bill.
That brings me to one or two of the broader criticisms that I should like to make. The noble and learned Viscount Lord Dilhorne, from the Cross-Benches touched on this point, which was also touched upon by the noble Leader of the Opposition: that the method adopted by this Bill is not to expunge the events by a legal fiction of saying that it cannot be used for certain purposes. It is to license the person affected to tell a lie about it and to prohibit anybody else from telling the truth about it. I believe that is much more serious than people might think at first sight. I believe that it diminishes the value of truth-telling as a vital moral principle in the community. And though I would not necessarily by any means oppose such a proposal if it were the only way of setting about it, I am not wholly satisfied that it is the only way of setting about it, for the kind of reason given by the noble and learned Viscount from the Cross-Benches.
Moreover, I think it is at least arguable that if you choose to set about it in this particular way—that is to say, licensing untruthfulness on the part of the former criminal and prohibiting truthfulness on the part of everybody else—you do (and this was a point of detailed criticism put forward by my noble friend from the Front Bench earlier) perhaps give rise to a greater number of anomalies and injustices, spread over quite a wide range of largely unforeseen contingencies, than you save by prohibiting the disclosure of truth in certain circumstances.
The other thing I would say about this Bill—and I would echo what the noble Lord, Lord Goodman, said on this, although he was an enthusiastic supporter of the Bill—is that to my mind, it tends to be much too complicated. It complicates the law instead of simplifying it. I am not at all sure that that is a good thing. The complications into which we have had to go this evening indicate to me that there may be a basic vice about this Bill. Here I would say a word to the noble and learned Lord, Lord Gardiner. When he was discussing earlier in this Session the proposals 796 of the Criminal Law Revision Committee, he made what may or may not have been a valid point in favour of the Law Commission—the immensely wide range of consultation which he recommended as a necessary preliminary to law reform. I wonder myself whether the process of consultation in regard to this matter has gone quite far enough, because clearly a very wide range of potential commercial and other interests are involved. There is the whole of matrimonial law and the whole of defamation law. It so happens that this is the one field into which I have been able to make an inquiry, and the Defamation Committee have grave reservations about Clause 6. Then, of course, there is the whole field of insurance and employment. These things require very careful consideration. I wonder whether there has been enough.
The fact of the matter is that, for reasons for which this House is in no way responsible, it is quite unlikely that this Bill will, with the best will in the world and with all the enthusiasm it has engendered, reach the Statute Book this Session. I therefore wonder whether it might not be a good thing to consider seriously the suggestion made by the noble Lord the Leader of the Opposition that the matter might be referred to a Select Committee or that in some other way a more detailed examination of its proposals might be possible. It is easy to say, with the noble Lord, Lord Janner, that this is an extremely important matter, although it refers to a state of affairs which has existed for a very long time; but I believe that if we are to do a legislative job here, we ought to make sure that it is a good one. With that word of caution, I leave the field to the noble and learned Lord. He has every reason to congratulate himself on the result of this evening's debate. I do not wish in any way to delay or obstruct the passage of this measure, if and in so far as on reflection it receives the good will and approval of the House; but I think that, standing where I do in the Office which I hold, I ought to utter cautionary words where cautionary words may improve the situation. I hope, therefore, that the noble and learned Lord will not take it amiss that I have said these very few words in criticism of what he has proposed.
§ 7.49 p.m.
§ LORD GARDINER
My Lords. I am extremely grateful to all noble Lords who have been good enough to take part in the debate on the Second Reading of this Bill—one of the largest number of speakers that I remember. There has not been a single speaker who has opposed the Second Reading of the Bill. It never occurred to me that the Bill was likely to be properly drafted—very few Private Members' Bills are—and I am very grateful that a great number of points have been taken. To those who have been good enough to stay to the end of the debate, may I say that we shall take all these points into account, the ones, for example, made by my noble friend Lord St. Davids, with his great knowledge of boys, and the point made by my noble friend Lord Janner, about the two years in the Schedule.
If I may mention one point raised by the noble Lord, Lord Hunt, the position is that criminal records come under the Official Secrets Acts; therefore, those who maintain the records have no right to divulge them to anybody without authority. The normal source of their authority is the Home Secretary, and while the noble Viscount could answer this point better than I, I simply cannot conceive of any Home Secretary who would not allow both the Parole Board and the local committees full access to all information, whether the person concerned is rehabilitated or not. It is, I am afraid, the fact that sometimes the police reveal things in a sense rather off their own bat. I will read, even at this hour, a very nice letter from a boy (I am indulging myself really in referring to it). It is an example of an unauthorised disclosure. It was a letter written to the son of my noble friend Lord Janner, who, as you know, is a Labour Member in another place. The boy wrote:Dear Mr Janner,I see you want ideas for new laws. I am 15 and have a good idea. My Dad is a good kind man and votes labour too. He has worked in his job for 17 years.Two months ago some goods was stolen from a shop near to us. A policeman came round in plain clothes and asked everybody questions. My Dad was being questioned downstairs and the policeman said, 'We know you have a record and been in trouble You was in trouble in 1954'. My Dad said, Yes I was only bound over for a year'. We all heard 798 it and Mum cried and we was all upset. But it was not my Dad who done it and two other men was fined…I think you should change the law so as if a person lives a good life for some years these things should be forgotten and taken off the records. I won't give my address as we have had enough worry and we have all forgiven Dad. I was not born then anyway.I am very grateful to all noble Lords who have made such helpful comments and raised a number of very clear Committee points. When we reach the Committee stage I shall rely particularly on my noble friend Lord Shackleton, and the noble and learned Viscount, Lord Dilhorne, as well as the Home Office, for their assistance.
I will confess quite frankly that something we never considered is the Liberian tanker in Greek waters. Some of these points may be matters of opinion. The Committee would probably still feel, rightly or wrongly, that if you say to a man, I am giving you a chance, putting you on probation. Do what you are told for two years and there will be no trouble; you will never hear of this offence again", it is not right if, after the two years he does offend again, then the first thing he gets is the old conviction thrown at his throat—the conviction he was told by the judges he would never hear about again.
The defamation position has been somewhat exaggerated. One of the very few branches of the law that I know anything about is the law of defamation. There was a time when I was in danger of being thought of as a libel specialist. This is always fatal at the Bar, as the noble Viscount knows. It is not uncommon in a libel action for somebody who has given a reference, to plead justification; but he is under no obligation to do so. If he has not pleaded justification he cannot say, "Yes, this man was convicted". But, having qualified privilege, he is entitled to say, "I believe what I said was true, and I will tell you why". However, all these fascinating points can be considered on Committee, and I shall rely very much on the kindness and help of those who have promised to help. I believe that the noble Lord, Lord Goodman, was right in saying that with good will on everybody's part we shall get the Bill right.
§ On Question, Bill read 2ª, and committed to a Committee of the Whole House.