§ 2.56 p.m.
§ LORD ABERDARE
My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales that they, having been informed of the purport of the Road Traffic Bill, have consented to place their prerogative 837 and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
My Lords, I beg to move that this Bill be now read a third time.
§ Moved, that the Bill be now read 3a.—(Lord Aberdare.)
§ On Question, Bill read 3a.
§ Clause 5 [Provisions supplementary to sections 1 to 4 and Schedule 1]:
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 1:
Page 9, line 17, leave out ("owner of that vehicle") and insert ("person by whom the vehicle was kept and used").
§ The noble Viscount said: My Lords, this Amendment and Amendment No. 2 are in fact purely drafting. If any noble Lord wishes me to explain them of course I will gladly do so, but I hope the House will accept my assurance that they make no difference to the sense of the Bill but I think add clarity to it. I beg to move.
§ On Question, Amendment agreed to.
Page 9, line 18, leave out from ("that") to ("at") in line 19 and insert ("the vehicle was kept and used by some other person").—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§ Clause 12 [Extension of type approval scheme to all vehicles and to vehicle parts]:
LORD MOWBRAY AND STOURTON moved Amendment No. 3:
Page 16, line 39, leave out ("section 47(1)") and insert ("the application of section 47(1) in relation to vehicle parts").
§ The noble Lord said: My Lords, this is a drafting Amendment designed to clarify the interpretation of Section 47(1) of the Road Traffic Act 1972 as amended in subsection (3) of the clause. On behalf of my noble friend Lord Aberdare, I beg to move.
§ On Question, Amendment agreed to.
§ 2.58 p.m.
§ LORD HACKING moved Amendment No. 4:
After Clause 15 insert the following new clause:
. In section 6(1) of the 1972 Act (driving with blood-alcohol concentration above the prescribed limit) the words from "as ascertained" to "Act" shall be omitted and the words "at the time he provides the specimen" shall be omitted.
§ The noble Lord said: My Lords, with your Lordships' leave, I intend to speak to all the Amendments in my name in one single speech, although at a later stage I may ask your Lordships' leave to move them in three groups; that is to say, Amendments 4 and 5, Amendment 6 and Amendments 7 and 8.
§ LORD HACKING
My Lords, I am much obliged to the noble Viscount. This was the course I adopted, a little under protest, at Report stage, and it seems to be the most convenient way to deal with my Amendments. I am most conscious of putting down substantive Amendments at the Third Reading of this Bill, and I am most conscious, too, that many of your Lordships may think that this House has better things to do to-day, on this day of crisis, than to consider the breathalyser law. Indeed, there is a substantive matter later in your Lordships' Order Paper; namely, the Committee stage of the Protection of the Environment Bill.
However, I hope to persuade your Lordships that these Amendments are of importance, not only because of the present state of the breathalyser law which, if I may quote the noble Earl, Lord Mansfield, is "ludicrous, uncertain and unfair" and bringing us "into disrepute", but also because my Amendments focus on a matter which should be of real concern; that is, the efficacy of our laws. Much of our current legislation suffers from the grave malady of being excessively complicated and hence unenforceable (at least within the intention of Parliament) by the user. In my submission, the Road Traffic Bill is no exception, couched as it is in language which few will be able to master, particularly if you take into account the pressures, for example, in the county council office or in a court of law.
Before again being critical about the breathalyser law, I should say that I recognise the climate in which the Roard Safety Act passed through Parliament. Never before in peace time has a law threatened to interfere so much with the 839 personal liberty of so many citizens. Hence Parliament wrapped and wrapped again the Bill with clauses restricting arbitrary action by police and other administrators of the law. It tried, mainly successfully, to protect the liberty of the motorist, although perhaps it did not take sufficiently into account the liberty of such people as a child client of a colleague of mine who, in consequence of injuries inflicted by a drunken motorist, will never be able to enjoy much of the liberty of what remains of her life. What is curious about the stand being taken by the Government, and by other noble Lords, particularly those who were in Government at the time when the Road Safety Act became law, is that those then in Government have recognised the major failings of this Bill, while the present Government have not—at least, not sufficiently to persuade them to amend the law.
Just how bad is the breathalyser law as it was enacted in 1967 may be illustrated by two simple examples. First, if the judges had not from the outset stretched the meaning of the words, "driving or attempting to drive", beyond their natural meaning, hardly any motorist in the land would have been convicted and the breathalyser provisions could never have been enforced. Second, although the Act set out two offences, the offences of driving and of being in charge, it failed altogether to set up the means by which the latter offence could be proved, except by chance of the backdoor through the "unfit to drive" provision.
My Amendments do not attempt to deal with all the problems arising out of the present law, but they do attempt to deal with the three areas of what I believe are major difficulty. At the Report stage, I went through these areas in detail and explained precisely what had gone wrong, and why, and how my Amendment would cure the defects. This afternoon I do not propose to take that course, but shall tell your Lordships what the three areas of difficulty are and, I hope, satisfy you that my Amendments provide the answer.
The first area of difficulty, which is referred to in Amendments Nos. 4 and 5, is Section 6(1) of the Road Traffic Act which confuses the offence with the proof of the offence. The result is that any 840 motorist can bring the whole procedure to a nullity by taking a drink between the time he is stopped and the time of giving a specimen of blood or urine. My Amendments divide the offence from the proof of it and, in doing so, stop up this outrageous escape hole.
The second area, to which Amendment No. 6 refers, is that the Act requires the police to commence the breathalyser procedure while a motorist is still driving or attempting to drive. A moment's thought will enable your Lordships to realise that it is physically impossible to place the first bag of the first breath test into the possession of the motorist while he is driving or attempting to drive, and therefore the courts were faced with a basic difficulty. They therefore attempted to lay down, and did lay down, a test as to when a person is driving or attempting to drive. Not surprisingly, this produced some absurd results. For example, the noble and learned Lord, Lord Hailsham of Saint Marylebone, in his speech in the case of Sakhuja v. A hlen and Others, pointed out that the Law Courts have held that a motorist was still doing something connected with driving when buying a newspaper, and was still held to be driving or attempting to drive. But if he stopped his car to buy groceries he could no longer be held to be driving or attempting to drive.
Even the application of those tests, alas! enables some of the most serious of offenders to escape conviction. For example I cite a case which I quoted during the Report Stage the case of Edkins v. Knowles. In that case, in brief, a motorist was driving at an excessive and dangerous speed. He was seen by detectives who were in a police motor car. They followed him but thought that he was driving far too fast and dangerously for them to overtake him. They followed him to a holiday camp, and when he stopped there they kept him in the driving seat until a uniformed police officer—who of course is the only person who can administer a breath test—arrived.
When the uniformed officer arrived the man had been in the driving seat for fifteen minutes. On being invited by the uniformed officer to undergo a breath test he obliged, and it was found that he was excessively over the limit. But it was held, not unnaturally, that he was no 841 longer driving or attempting to drive, and the procedure came to a nullity. My Amendments recognise the obvious: that the procedure cannot be invoked until a motorist has ceased driving. Hence, if my Amendments are accepted the motorist will no longer be able to drive off at speed with impunity, pursued by detective officers, and then later escape a conviction.
I move to the third area where there is considerable difficulty, and it is referred to in Amendments Nos. 7 and 8. The Act insists at present that a specimen of urine or blood may be taken only from persons arrested under the "unfit to drive" procedure or the "over the limit" procedure. Suppose, for example, a motorist escaping from a crime of grievous bodily harm in a public house is pursued and arrested for that offence and is taken to the police station. If it later transpires that the offender had been drinking excessively, then under the present procedure a police officer is stopped from bringing in the breathalyser procedure. Or take another example from my own experience. An offender was driving a motor car, and, having been stopped by a police officer, proceeded to punch the police officer on the nose. Not unnaturally, the police officer arrested him for that and again the procedure was brought to a nullity. My Amendment ends that nonsense. Above all, my Amendments seek to clarify the law. Amendments Nos. 7 and 8 are concerned with an exercise in grammar and syntax and the only hurtful thing that the noble Viscount, Lord Colville of Culross could say would be that my grammar or syntax is poor.
As well as seeking to clarify the law, my Amendments would relieve the courts of an enormous burden of unmeritorious cases about which the noble and learned Lord, Lord Hailsham of Saint Marylebone, rightly had some harsh things to say. The matter becomes more critical if this Bill is passed because hitherto difficult cases have gone to the Crown Court; and from the Crown Court there is a right of appeal only by the defence to the Court of Appeal, Criminal Division. One of the consequences of the enactment of this Bill would be that all the breathalyser cases, apart from those where the prosecution elects to go for trial, will be tried before justices, and hence both the prosecution and the de-fence 842 fence will have a right of appeal on law. I am not going to anticipate the reply which the noble Viscount, Lord Colville of Culross, gives to my Amendment here at Third Reading. I can only express the hope that he has been given better instructions than he received at the Report stage, for those instructions which begin. "We are getting on nicely, thank you", provide no comfort and no answer to the problem.
My Lords, before I sit down I should like to express a word of thanks. I am not lucky enough, speaking from this position in the House, to have a number of wise men to supply me with information and corrections. But I had, before coming to this House, been very lucky to receive the advice and encouragement of members of your Lordships' Judicial Committee, many Judges in the High Court, Lords Justices and puisne judges, as well as members of the Bar, and the result is that my Amendments are the consolidated work of a number of people on both sides of the judicial Bench. I beg to move.
§ 3.11 p.m.
§ LORD STOW HILL
My Lords, I should like briefly to support the noble Lord, Lord Hacking, who quite obviously, from the very careful and detailed speech which he has addressed to your Lordships' House, has made a very thorough study of these important problems—problems which are in no sense abstruse. These are matters which affect the safety and conduct of every citizen in the country—if I am right in supposing that at any rate nearly every citizen drives and every citizen is exposed to risk—if a driver has consumed too much alcohol when he drives or attempts to drive. I should be rendering no service to your Lordships' House if I sought to repeat what the noble Lord, Lord Hacking has so clearly put before the House, but I would submit that it is clearly quite indefensible to enact laws which will enable a driver who is stopped and takes a breathalyser test and is asked to come to a police station to have the proper test made, to evade the consequences of his misdoing by taking a flask out of his hip pocket and drinking some whisky. That, as I understand it, is the present state of the law as it has been interpreted. It is equally difficult to justify a state of law which proclaims 843 that you are attempting to drive if in a motor car you buy a newspaper, but that you are no longer attempting to drive if your thoughts wander to the subject of groceries. The distinction is so slight that it really must elude the commonsense of citizens who, as I have said, are so directly affected by this legislation. I should have thought that the culmination of absurdity was that you can escape the consequences of your excessive consumption of alcohol by banging a policeman on the nose when he stops you and asks you to take a breathalyser test.
My Lords, that is what the present law has been shown to enact. The courts do their level best to try to make sense of law as it emerges from the two Houses of Parliament. This, of course, is a new field of law, in this country at any rate, and when one in enacting a completely new scheme from time to time, one is bound to find that anomalies crop up and frustrate the intention of the Legislature. That really has happened, I should have thought, to a rather major extent in this pattern of legislation, and I greatly hope that the noble Viscount will be able to tell the noble Lord, Lord Hacking, that he will carefully consider these seven Amendments, the general objective of which has already been fully explained by the noble Lord, and that he really will make an attempt to cure these monstrous absurdities in the wording of the present Act. I hope he will not just out of hand turn down language which in many respects has been shown, when the law is administered, to be inappropriate. I earnestly ask the noble Viscount to go at least as far as that.
§ 3.15 p.m.
§ LORD FOOT
My Lords, I should like to add any help I can to the noble Lord, Lord Hacking, in moving these Amendments. I am not going to re-argue the points he has made, as followed up by the noble Lord, Lord Stow Hill, because I do not think there will be any argument in any part of the House about these anomalies and absurdities in the present law. Indeed, when the noble Viscount, Lord Colville of Culross, was dealing with this matter at the Report stage he did not seriously argue on the merits of the Amendment moved by the noble Lord, Lord Hacking. He developed a rather different argument. He said that 844 we had had this Statute effectively since 1967, and during the course of the years a body of case law had been built up interpreting and elucidating the enactment, and it would be a pity to disturb that body of case law. His argument, in effect, was, "Do not let us try to alter it now because if you do and try to introduce Amendments to the existing law that will mean that you will only be producing more bones for the lawyers to gnaw upon and you will have the problem of developing a further body of case law to interpret the amended law".
I cannot regard that argument—and I hope I have not misinterpreted it—as being sufficient or satisfactory because, as I understand the point made by the noble Lord, Lord Hacking, it is that despite the judicial interpretation and elucidation of the existing law that we have had for the past seven years, these anomalies have been made clear. Indeed, the anomalies have only been underlined and emphasised by the judicial decisions we have had upon the Act. Therefore it does not seem to me to be any answer to say that the Act ought to be left as it is, and that you can leave it to the process of judicial interpretation to put these things right, because they have not been put right by the process of judicial interpretation and we have been left with these glaring anomalies and absurdities upon which I think everyone is agreed; yet the Government are saying to-day as I understand it, that it is too late in this House in this Bill to do anything about it. My Lords, I think that that, too, is unsatisfactory.
The noble Viscount, Lord Colville of Culross, in his speech on Report gave three very clear hints that if the noble Lord, Lord Hacking, would leave the matter here in this House there would be time for this matter to be considered, and it would be considered, in the other place. If that is true, and if it is the Government's intention to introduce Amendments to the breathalyser law in the other place if and when this Bill reaches them, then I suggest that it is only right that the Government should give us an undertaking to-day that that will be done. If the Government will give an undertaking that they will introduce the necessary Amendments to cure these absurdities and anomalies in the other place I, for once, shall be content to leave the matter there; but if the 845 Minister is not prepared to give us that undertaking, and if in effect this is just stalling, then, if the noble Lord, Lord Hacking, decides to divide the House I certainly will go into the Lobby with him.
We may not have another opportunity of dealing with the faults in the breathalyser law for a long time to come, whether or not there be an Election. It may be another five years before we get a further amendment of that Act. Are these absurdities to remain for another five years? May I say to the Minister, when he talks about putting this right or having something done about it in the other place, that it is in this House where this kind of thing ought to be put right. The Government introduced the Bill into this House in the first instance. We have much better opportunities here for discussing such matters with less Party political debate than they have in the other place. One of the great virtues of this House—I almost said one of the few virtues—is that decisions about these things are often decided by the arguments put forward rather than by the Whips. I suggest that this is the kind of subject which should certainly be so decided. I would therefore say to the Minister that unless he will give us a clear undertaking that the Government will take steps in the other place to propose Amendments to meet the difficulties which the noble Lord, Lord Hacking, has pointed out, then I for one hope that we shall carry this Amendment to a Division, and I hope that we shall be supported by many Members of your Lordships' House who have listened to the argument.
§ LORD CHORLEY
My Lords, I should like to add just a word or two in favour of what has been said about these Amendments. It has always been a puzzle to me that so late in the 20th century a Statute could be as badly drafted as this one in relation to the sections concerned with the breathalyser test. It is no doubt true that the Judicature have done their best to clarify the wording, but it was so bad to start with that it has been almost impossible for them to succeed, whatever the noble Viscount, Lord Colville, may have said about it at earlier stages. Really, it would be very much better to start again and try to put it right. The administration of this section of the law hardly redounds to the credit of the Bench, however hard they have tried to put it right. 846 I should think there is no part of the law which over the past few years has appeared to the man in the street to be so lacking in common sense as these particular sections. I hope that the opportunity will be taken to-day to do something towards putting them right.
§ BARONESS BIRK
My Lords, following the contributions made by the distinguished lawyers, and as the only layman so far to speak, unless there is some very good reason which was put forward either on the Report stage or earlier, it seems to me on the basis of common sense and speaking as a magistrate, that the Amendment standing in the names of the noble Lord, Lord Hacking, and other noble Lords makes good common sense. We are always being told, when trying to introduce what we think is an improvement, that this is not the right place and that one should wait for the relevant Bill before attempting to make a change. It would seem to me that there is no better place for this matter, and all the other anomalies, to be ironed out than this Bill. I hope the Minister will find himself able to take that view.
§ 3.24 p.m.
VISCOUNT COLVILLE OF CULROSS
No, I do not, my Lords. I will try to explain to the noble Baroness and to other noble Lords who have spoken why I take this stand. This is not a precipitate or unpremeditated remark, but it is one that rests upon two fundamentals. Incidentally, I hope the noble Lord, Lord Chorley, is not going to leave his place for one moment, because I should like to commend him very much for what he said just now. The noble Lord intimated—and I do not wish to go into the question of whether or not the basic drafting of the Act of 1967 was or was not sound—that what we ought to do is to look at the whole question again and reconsider the entire structure of the legislation, which I have no doubt he has had to administer in Westmorland over a period of time and which has caused him difficulty, as it has others. Might I just say to the noble Lord that I entirely agree with him; he is entirely right about this, and we must not underestimate the weight of what he has said, based upon his personal experience.
This Bill would have been an opportunity to deal with I know not how many 847 points arising out of the Road Traffic Acts. We have put in this Bill a number of important measures to deal with road safety. I need not catalogue them because they are familiar to your Lordships; but the Bill has been restricted in its area according to priorities and pressure on Parliamentary time. This has happened on purpose. I am not saying in reply to the noble Lord, Lord Foot, that a review of the blood alcohol legislation is never going to be necessary, but I must also tell the noble Lord that whatever the result may be in terms of going through the Division Lobbies, I cannot possibly give any undertaking (in view of what the noble Lord, Lord Chorley, has said) that we are going to be able to get this whole thing completely re-thought in order to put down major Amendments in another place. If said something on the Report stage which led people to believe that that is what I was saying, then I am very sorry. But I must make it quite plain now that I was not making any such promise, and noble Lords will have to act accordingly.
I accept that this legislation is not very easy. It was attacking a problem which is perhaps not very familiar to the criminal law. There was a stage before the courts got at it when it appeared that it might also fail because of errors of drafting. In fact, it has not failed. The number of breath tests and the number of convictions (no doubt partly due to the folly of motorists) has risen fairly steadily year by year in fairly constant proportion to each other. In 1972 there were 120.000 breath tests, of which quite a large number proved negative, and there were 44,000 convictions. So there we have not got a picture of legislation which has failed; and when the noble Lord, Lord Hacking, tries to make out how had this law is, we must remember that large numbers of convictions are being obtained under this law.
I think that against those figures, one has to look at a comparatively small—indeed, probably miniscule—number of anomalies that arise out of one very simple fact. If you get caught by the police with more alcohol in your blood than the prescribed limit automatically you get disqualified. There is nothing that a person who has a motor car dislikes more than being disqualified. Therefore, this law, whether it was drafted well, badly or indifferently, 848 has inevitably been under supreme pressure. Every possible technicality to do with the procedure of the police, the drafting of the Act or with anything else that could be thought of by the ingenuity of those concerned, has been tested and re-tested in the courts. That is why in a comparatively small number of cases only anomalies have occurred. I am not saying that if we were to start again we would do it in the same way. What I am saying is that there is a fairly strong argument for not tinkering with the law at this stage in its development. I am afraid that I do not agree with the noble and learned Lord, Lord Stow Hill, that it is not abstruse. The very arguments that the noble Lord, Lord Hacking, put forward show that there are matters in it which are by no means easy of interpretation and it is precisely for that reason that he has put down the Amendment. It is not a simple law, but is one that is gradually being understood and worked out by those who have to deal with it.
My Lords, the noble Lord, Lord Hacking, has rightly dealt with these matters in three parts to which I will come in a moment. We think that although procedures under the present law may be tiresome for the police, the police and the courts are now familiar with them; and, as I have just said, the law is working. Certainly when it comes to the question of driving, one can pick fun out of the difference between stopping to buy a newspaper and stopping to buy one's groceries, but if one reads the opinion of my noble and learned friend the Lord Chancellor in Sakhuja v. Allen, it will be seen that that is with respect, perhaps a rather superficial way of looking at what is rather a profound interpretation of the law about when or when you are not driving for the purposes of this Act. We feel that we should gain still more experience of the present law before we start any process that somebody might think right of a practical re-building of the whole thing. I am afraid that no rebuilding from the very start is practicable within the timetable of this Bill.
The noble Lord, Lord Hacking, advised I know by a great deal of eminent legal opinion, has taken a great deal of trouble about this matter and he has given ample notice of what he wants to do. He explained it most thoroughly on a previous occasion and he has given me every possible assistance in preparing for 849 it. I am deeply grateful to him. It is the most helpful way of carrying on proceedings in this House, and I earnestly hope that he will accept my thanks. My thanks also go to those who have assisted him.
What I should like to do—and I will try to do this briefly because, as the noble Lord has said, we have important business to follow—is to look at some of the points he has raised and to see whether he has got it right, because I suspect—whatever the noble Lord, Lord Foot, thinks and whatever other noble Lords think about the weaknesses of the law—that if noble Lords are going to divide on these Amendments then they will want to be perfectly certain that they are flawless. Without going into horrid little drafting points, I should like to point out one or two of the difficulties which are quite substantial in the drafting of these Amendments and suggest to your Lordships that, despite the erudition that has gone into their preparation, they may not quite do.
Let us look for a moment at the first two new clauses. We are here involved, as the noble and learned Lord, Lord Stow Hill, said, with the person who takes a drink either after he has been stopped by the police or after he has had an accident. He may take it out of a hip flask; he may go into a pub; or he may be given a drink by some misguided but kindly person nearby. He may do it dishonestly or he may do it out of the purest of motives. What are we to make of it? It partly depends upon the definition of whether or not he is still driving, and to that the Sakhuja case has made a considerable contribution. If there has been an accident and he has taken a drink in between and there is no way of telling whether or not he has done so with malice or out of pure innocence, it may pause a genuine difficulty. But I suggest to your Lordships that that does not happen very often. What do we find, however, in the tightening up of the law as proposed by these first two Amendments, and in particular by the defence, the new subsection (2A) that the noble Lord, Lord Hacking, has put down as Amendment No. 5? What we shall then have is this: we shall have an offence deemed to have been committed when the tests prove the prescribed limit or more in the blood unless the contrary be shown, and the proof is 850 upon the defence. How does the defence prove it? That is what one has to work out. First of all, it has been established that you cannot apportion the amount of alcohol that was in a person's blood while he was still driving the car and the amount of alcohol that has been added to that amount in his blood by means of him taking a drink later. That has been established by the Rowlands case, and beyond doubt, as I understand it.
§ LORD HACKING
My Lords, may I intervene to say that I had very much in mind the case of Rowlands v. Hamilton, but my Amendments would overrule that judgment.
VISCOUNT COLVILLE OF CULROSS
They may overrule the judgment, my Lords, but they do not overrule the fact that you cannot apportion the amount. At any rate, the Amendments do not specifically allow you to do it nor do they say how you can do it. As I understand it, the practical difficulties of this, depending on different people's metabolism, are intense. I may be wrong, but that is the advice I have had, as prepared by the noble Lord and the advance notice that he has given me. If one cannot apportion the amount of alcohol that you had in your blood before you took the extra drink after driving—if your Lordships see what I mean—then this defence can only work if you can establish that you had no alcohol in your blood at the time you were driving the car. That, I suggest, is going a bit far because, after all, you are entitled—for better or for worse—to have up to 80 milligrammes per millilitre without committing a criminal offence. This defence indeed requires a very heavy burden on the defence and one which, I would suggest your Lordships, has not been sufficiently clearly thought through. The mere fact that the noble Lord, Lord Hacking, says that it overrules Rowlands—which is not the advice that I have been given—in itself shows that there is still an area of dispute whether the noble Lord is right or whether I am right on this particular matter.
§ LORD HACKING
My Lords, it clearly must overrule Rowlands v. Hamilton for the very good reason that it divides the offence from the proof of the offence. The difficulty of Rowlands v. Hamilton was that the previous legislation did not do so, and it became merged 851 into the two; hence their Lordships in the Judicial Committee were forced to make the decision in Rowlands v. Hamilton.
VISCOUNT COLVILLE OF CULROSS
My Lords, I think that this becomes another lawyers' paradise and the whole object of the exercise is to avoid such splendid excesses and banquets for lawyers. As we have a laboratory test and a specimen which has been taken after the person has had, first of all, the amount of alcohol in his blood, if any, which he had when he was driving, and secondly, the amount of alcohol in his blood as a result of having taken a drink after he stopped driving, and there is only one laboratory test and you are not allowed to apportion between the two, I still do not understand how the defence works. That shows the complication of this particular matter and we think that it goes too far.
I can see that there is a problem here, but what I cannot at the moment devise is a satisfactory mid-point between something of that sort which goes a very long way to make this a strict offence—to which there is virtually no defence at all—and the present law; and I cannot do it without attempting to construct the whole of the breathalyser offence. For the sort of reasons I have given, I think that this particular Amendment is defective and it would, on its wording, give rise to yet another series of major legal battles.
The noble Lord's third new clause deals with the question of driving. Here again we have a situation where the noble Lord, in his Amendment, has gone a good deal further than the law at present goes. I know that there are anomalies and that where a person is seen to be drunk or thought by a plainclothes C.I.D. man to be drunk, and is stopped and held in the driving seat until the arrival of a uniformed constable (who alone can administer the breathalyser), he is held to have stopped driving by the time the breathalyser is applied, so the law does not catch him. That was the case of Edkins v. Knowles. Equally, if the person is prevented from driving, as in the Bates case, by somebody else, a member of the public, for a period of time until the policeman 852 arrives, he has stopped driving and so he is no longer in a position to be caught under the Act as it stands.
Those cases are one end of the scale. But what about the situation which would arise under the wording of Amendment No. 6? I shall give two examples. If I remember rightly, my noble friend Lord Mansfield suggested to your Lordships the other day the example of a party being attended by a husband and wife who made a pact. The husband was to drive there and the wife was to refrain from alcohol and drive home again—of course, it might be the other way round. Whoever drove to the party drove rather fast and the police were apprised of the situation. They found the couple at the house where they were having dinner. By that time the person who was driving had been released under the pact from abstention from alcohol and had had a considerable amount of drink. There was more than the prescribed minimum amount of alcohol in his blood. But he was not going to drive home; his partner was going to do so. Yet under this legislation, as drafted in the Amendment, there would be a power to arrest the person who had driven perfectly soberly to the party at any time in the course of the evening. This is absurd. I am afraid that that is the effect of the Amendment.
I need not go quite so far as that. Supposing that I, perfectly sober, drive to dinner and drive too fast because, as usual, I am late, and upon arrival, I have several drinks. I can be breathalysed by the police halfway through dinner, by which time they have caught up with me and at which time I have more than the prescribed amount of alcohol in my blood. But I am staying the night, I am not going to drive home. I have committed no offence. The noble Lord's Amendment does not take account of these things, and again it goes too far. I cannot see the midway point between, unless you take what may be a sophisticated but is nevertheless a fairly common-sense attitude about what is and what is not the state of driving, such as the noble and learned Lord the Lord Chancellor took in the Saklwja case.
Incidently there is not a gap in the law under Section 6(2) and (3), as the noble Lord, Lord Hacking thought. It was specifically provided under Section 853 6(3) that a person who thought he had too much alcohol in his blood should be able to relinquish the effect of driving the car by some means until he had sufficiently sobered up to be able to drive home. It is a fairly complicated procedure; but there is no gap in the law which was created by some mistake. This was put in on purpose. The noble Lord may say that there is no power to enforce Section 6(2), but in fact there is in a rare number of occasions. It follows that it will be rarely used. Those two subsections are there on purpose and they are not, as the noble Lord considers, a gaping hole.
§ LORD FOOT
My Lords, the only illustration the noble Viscount has given of the way in which Amendment No. 6 might work out wrongly is the illustration of somebody who goes sober to a dinner party and who has a drink after he has arrived there. Has not the noble Lord overlooked the proviso which the noble Lord, Lord Hacking, is proposing: the requirement that the breath test is taken as soon as is reasonably practicable after that person ceased driving or attempted to drive. Supposing somebody drives perfectly sober to a dinner party, takes drinks and then police officers go into the private house and breathalyse him. If he was brought before the magistrates on this charge is there any magistrates' court in the world that would regard that as taking a sample as soon as was reasonably practicable after he had stopped driving?
VISCOUNT COLVILLE OF CULROSS
Yes, my Lords. I have been into this in great detail. I can explain to the noble Lord exactly why. Let me give an illustration. On my way to lunch I was driving fast and badly. My car number was taken by somebody, maybe a policeman, who did not stop me at the time. My car registration number is traced through the registration authority, which will very soon be based in Swansea and computerised. The police, having discovered the name and address of the owner of the car, telephone or visit my house and find that I am out to lunch. They go immediately to the place where I am having lunch and breathalyse me. What could be more than "as soon as reasonably practicable" than that? Nobody could be quicker, more efficient or more off the mark than that.
854 The noble Lord wags his head and the noble Baroness wags her head, too. Very well, if noble Lords wish to avoid a ridiculous situation of that sort, so be it. I do as well. But I say that the proviso does not have that effect. This is the difficulty about law under pressure. This is the point that is going to be taken one way or the other unless we get it right. I suggest that when you have this type of proviso, and it is defended on those grounds, the Amendment is not right.
§ LORD HACKING
My Lords, I am sorry to interrupt again, but I should draw to the noble Viscount's attention the fact that the proviso is in almost identical language to the proviso that has been in the Act from the outset concerning paragraph (b).
VISCOUNT COLVILLE OF CULROSS
My Lords, whether or not my arguments are accepted, I cannot go on for much longer in this matter. I am sorry that I have already done so for so long, but I know that it is an important matter. I have tried to concentrate my arguments.
May I go on to the third group, Amendments Nos. 7 and 8. This is the question of what happens when somebody is arrested. I appreciate—and the noble and learned Lord, Lord Stow Hill, mentioned this—that there are circumstances in which if you are drunk when driving a car and a policeman stops you you can punch him on the nose and get arrested, and by the technicality of having been arrested for that offence and not for an offence under the Road Traffic Act, you cannot be breathalysed and disqualified as a result of a conviction. But I think that by this time the police know that, and although it may require a certain presence of mind, if you are a police officer and are punched on the nose, to arrest somebody under the Road Traffic Act before you also arrest him for punching you on the nose, it is something which is capable of being dealt with under police procedure. If the policeman gets it right the person is breathalysed and disqualified. There are practical methods of avoiding that difficulty.
The noble Lord, Lord Hacking, also said that there were circumstances in connection with a theft where somebody who had burgled a house, or something of that sort, had been driving a car with 855 more than the prescribed amount of alcohol in his blood. I grant that these are circumstances that can arise, but we have one or two points about this, one of which is of some substance. First of all, under the Criminal Justice Act if somebody has used a car in the course of a criminal expedition he can be disqualified. Secondly, we have the case of Weir, which was heard in the Liverpool Crown Court, where a man was being questioned regarding stealing a car. After he had been taken to the police station somebody smelt alcohol on his breath and decided that they would also try to get him for driving the car with too much alcohol in his blood. Your Lordships can imagine all sorts of similar circumstances where burglars who come in a car or van are caught red-handed and the police wish to prosecute them also for driving under the influence of too much alcohol.
I suggest that we are getting some way from the direct nexus of driving a motor vehicle and having alcohol in the blood and a subsequent arrest. If you can arrest somebody for anything, and after that say "Incidentally, he came here by car, and I think he has too much alcohol in his blood," we are going a long way from the direct connection between driving and alcohol which is the basis of the present law in the Road Traffic Act. It may be right; perhaps we ought to have less close a nexus between the two. But if we do then we are getting into the area of a much looser application of the whole question of breath testing and alcohol testing in the blood. We are getting into the area of random testing for people who are picked up for any offence, or indeed for no offence, but simply because they are stopped at random. I believe we should consider the principle, and I believe that this House and another place would wish most seriously to consider the principle, because it was very seriously considered when the 1967 Bill was being debated.
When we come to this secondary charge, which arises out of an arrest for some other offence, we are getting into a much wider field altogether, a field which is inevitably entrenched upon by this last group of Amendments by the noble Lord, Lord Hacking. It is being done—I do not in any way suggest that the noble Lord has done it on purpose, 856 but this is the effect—without anybody being told or given a chance to consider the full consequences of where we are heading when we do it this way.
My Lords, this has been a very long speech; I am sorry. I accept that this is an important subject. I also suggest to your Lordships that it is an extremely difficult one, and it is one that we ought to be very careful to try to take on board this way with the best will, the best drafting, the best endeavour in the world. I am afraid that I think all these Amendments are faulty, and I would still suggest to the House that we must look at the whole matter, keep it permanently under review. This is not the right time, nor the right way, to set about making an amendment.
§ LORD FOOT
My Lords, before the noble Viscount sits down, and since he has now made it perfectly plain that the Government are not prepared to accept Amendments of this kind to the breathalyser part of this Bill, I wonder whether I might ask him what he meant when on three occasions on Report he said that the matters which have been raised here have been very usefully raised because they provide a basis for discussion in the other place. May I ask him in particular what he meant us to understand when, after asking the noble Lord, Lord Hacking, not to press his Amendments, he said this:I hope the noble Lord may think it has been worth while to do it in this way, to make his speech, to produce his erudite comments and allow us more time to consider the matter when the Bill goes to another place in due course."?—(OFFICIAL REPORT, 17/12/73, col. 141.)What did the noble Viscount intend us to understand by that?
VISCOUNT COLVILLE OF CULROSS
My Lords, what I intended the House to understand by that was that before I heard the very careful speech of the noble Lord, Lord Hacking, I had not had an opportunity fully to analyse this matter and to see what were the implications of what he was putting forward. It may have been an over-promising reply, but my ambition in this House in speaking from the Front Bench is not to turn down, out of hand, helpful and constructive Amendments such as the noble Lord has put forward. I hope that is the right 857 attitude and one that will be supported.
I have now had the opportunity to look at this matter, and I find the prospect most unpromising for the reasons I have attempted to describe. I do not in any way suggest that the noble Lord, Lord Hacking or others who have supported him have been foolish in pursuing this matter, Far from it. It continues to be helpful and to give us ambition. But looking at the implications, as I have attempted to do briefly this afternoon, I am afraid I am now convinced that we have something too difficult to take on board in this Bill, and so I have to be less encouraging than I was previously.
§ 3.54 p.m.
§ LORD CHAMPION
My Lords, I seek eventually to enter paradise, but not into a lawyers' paradise. In any case, I would have no standing there. I have listened with very close interest to all that has taken place on these Amendments, both on Report and to-day. I have listened to the noble Lord, Lord Hacking, to the noble Lords, Lord Stow Hill and Lord Foot, the noble Lord, Lord Chorley, and certainly to the noble Viscount who argues always so persuasively. I am bound to say that since 1967 we have had six years' experience of what was a new departure. The 1967 Act was introduced by the Government of which I was then a member. That Act was not perfect; nor were the clauses dealing with the breathalyser. I believe that the six years that have passed have given us sufficient time to make up our minds that some Amendment is necessary. I believe that although Lord Hacking's Amendments may not be perfect, they certainly seem to me to be a step in the right direction and would do something to remove some of anomalies which the noble Viscount has said definitely exist.
My Lords, the noble Viscount said that the Act has not failed. I do not think it has failed. He went on to quote figures of convictions to prove that that is the case, that it has not failed. But he was unable to quote any figures to indicate that there may have been very many more prosecutions if it had not been for the gaps in the Act itself. He said that the anomalies have been thrown out. My Lords, ought we not to deal with anomalies in the law as and when we can, and as and when they are brought to our attention? I believe that that, surely, 858 is our position in relation to this matter because the Bill that is now before us seems to me to be a suitable vehicle for just the kind of Amendment which the noble Lord, Lord Hacking, is proposing. The noble Viscount certainly conceded that there were anomalies, and I feel that we ought to deal with them now in the Bill that is now before us. I think I ought to say that we do not regard this in any way as being a Party matter. I would not from this Box ask my noble friends behind me to accompany me into the Lobby in support of these Amendments as though it was something I would urge upon them as a Party matter. I must say that I have no hesitation at all about going into the Lobby in support of these Amendments. If the noble Lord, Lord Hacking, decides to go to a Division, I certainly hope that some of my friends behind me will accompany me.
§ 3.57 p.m.
§ LORD HACKING
My Lords, may I begin by expressing my gratitude to all the noble Lords who have taken part in this debate, and not least the noble Viscount, Lord Colville of Culross, for the contributions that he has made. He thanked me for the hard work that I had put into the case. Quite clearly, my learned friend (if I may refer to him as my learned friend) has gone to a great deal of trouble before coming to your Lordships' House to-day. He was kind to me and I am going to be kind to him. Of course, all barristers, whether they be in Government or out of Government, from time to time receive a bad brief; and that is exactly what has happened to the noble Viscount to-day. He has received a thoroughly bad brief from those who advise him. I did not wish my Amendments to result in a debate on legal points between barristers or lawyers. Indeed, I was most grateful to the noble Baroness for intervening and approaching the matter from common sense. That is precisely how I am now inviting your Lordships to approach this matter. I propose to divide the House—and for this reason: the present law does not match up to common sense; more than that, it defies common sense.
In dividing the House I am putting only one question to your Lordships: has the present breathalyser provision efficacy? If it has not, now is the time to start to improve it. In the words of the noble 859 Lord, Lord Champion, let us take a step in the right direction. I do not pretend, and have never pretended, that my Amendments are flawless or perfect. I have never pretended that they cannot be improved. Indeed, at the Second Reading and the Report stage I precisely said that when this Bill goes into the other place improvements can be made. But let us
§ start the ball rolling. Let us pass these Amendments, whether they are perfect or have imperfections. It is upon that basis that I divide the House.
§ 4.0 p.m.
§ On Question, Whether the said Amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 59; Not-Contents, 84.859
|Amherst, E.||George-Brown, L.||Roberthall, L.|
|Amulree, L.||Greenway, L.||Rochester, L.|
|Archibald, L.||Hacking, L. [Teller.]||Saint Edmundsbury and Ips-which, Bp.|
|Ardwick, L.||Henderson, L.|
|Arran, E.||Henley, L.||St. Davids, V.|
|Balogh, L.||Hoy, L.||Segal, L.|
|Birk, B.||Hughes, L.||Shackleton, L.|
|Brockwuy, L.||Hylton, L.||Shannon, E.|
|Buckinghamshire, E.||Hylton-Foster, B.||Shepherd, L.|
|Burntwood, L.||Janner, L.||Shinwell, L.|
|Champion, L.||Kennet, L.||Simon, V.|
|Chorley, L.||Kinloss,, Ly.||Stocks, B.|
|Clwyd, L.||Leatherland, L.||Stow Hill, L.|
|Davies of Leek, L.||Llewclyn-Davies of Hastoe, B.||Strabolgi, L.|
|Erskine, of Rerrick, L.||Lloyd of Kilgerran, L.||Summerskill, B.|
|Faringdon, L.||Loudoun, C.||Taylor of Mansfield, L.|
|Fiske, L.||Peddie, L.||Walston, L.|
|Foot, L. [Teller.]||Phillips, B.||Wells-Pestell, L.|
|Gaitskell, B.||Rea, L.||White, B.|
|Garnsworthy, L.||Rhodes, L.||Winterbottom, L.|
|Aberdare, L.||Drumalbyn, L.||Merrivale, L.|
|Aldenham, L.||Ebbisham, L.||Mersey, V.|
|Alexander of Tunis, E.||Eccles, V.||Milverton, L.|
|Alport, L.||Effingham, E.||Mowbray and Stourton, L. [Teller.]|
|Amory, V.||Elliot of Harwood, B.|
|Balerno, L.||Emmet of Amberley, B.||Northchurch, B.|
|Belhaven and Stenton, L.||Exeter, M.||Nugent of Guildford, L.|
|Berkeley, B.||Ferrers, E.||Onslow, E.|
|Brookeborough, V.||Fortescue, E.||Platt, L.|
|Brooke of Cumnor, L.||Gage, V.||Rathcavan, L.|
|Brooke of Ystradfellte, B.||Gainford, L.||Redesdale, L.|
|Camoys, L.||Gowrie, E.||Ruthven of Freeland, Ly.|
|Chesham, L.||Grenfell, L.||St. Aldwyn, E. [Teller.]|
|Clancarty, E.||Gridley, L.||St. Helens, L.|
|Clitheroe, L.||Grimston of Westbury, L.||Sandford, L.|
|Coleraine, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Sandys, L.|
|Colville of Culross, V.||Selkirk, E.|
|Conesford, L.||Harvey of Prestbury, L.||Sempill, Ly.|
|Cottesloe, L.||Headfort, M.||Stamp, L.|
|Courtown, E.||Hill of Luton, L.||Strange of Knokin, B.|
|Cowley, E.||Hood, V.||Strathspey, L.|
|Craigavon, V.||Howe, E.||Sudeley, L.|
|Craigton, L.||Ironside, L.||Teviot, L.|
|Crathorne, L.||Jessel, L.||Tweedsmuir of Belhelvie, B.|
|Daventry, V.||Kilmarnock, L.||Vivian, L.|
|Davidson, V.||Kinnoull, E.||Ward of Witley, V.|
|de Clifford, L.||Limerick, E.||Windlesham, L. (L. Privy Seal)|
|Derwent, L.||Macleod of Borve, B.||Young, B.|
|Digby, L.||Mancroft, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ House adjourned during pleasure, and resumed by the Lord Chancellor.
§ Clause 25 [Authorised insurers required to be members of Motor Insurers' Bureau]:
§ 4.9 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, on behalf of my noble friend Lord Aberdare, may I say that this is another of the Northern Ireland Amendments which results from the change in the law under the Constitution Act. I beg to move Amendment No. 9.
Page 30, line 31, leave out subsection (4). —[Viscount Colville of Culross.]
§ On Question, Amendment agreed to.
§ Clause 26 [Variation of penalties for certain offences]:
§ 4.10 p.m.
§ LORD JANNER moved Amendment No. 10:
Page 31, line 35, at end insert—
("() For the purposes of sections 26, 28, 109 and 110 of the Magistrates' Courts Act 1952, section 19 of the Criminal Justice Act 1948, sections 4 and 12 of the Criminal Justice Act 1961, section 24 of the Criminal Justice Act 1967, section 15 of the Criminal Justice Act 1972, section 7 of the Children and Young Persons Act 1969, and sections 60 and 67 of the Mental Health Act 1959, an offence under sections 2, 3, 5(1), 6(1), 9(3), 25(4), 29, 143, 164(1), 167, 169(1), 170 or 171 of the Road Traffic Act 1972, sections 233, 234 or 235 of the Road Traffic Act 1960, or 31(3), 42(4), or 86(2) or (3) of the Road Traffic Regulation Act 1967 shall be deemed to be an offence punishable on summary conviction with imprisonment.")
§ The noble Lord said: My Lords, in rising to move this Amendment I must frankly admit that I just cannot believe that the Government are really serious about retaining the clause as it stands at present. It would be fantastic, for many reasons. If we look at the Amendment we shall see how many penalties the magistrates' courts can impose to-day, and the clause is designed to take those away from the magistrates' courts in dealing with motor offences leaving the magistrates literally devoid of any possibility of action other than the imposition of a fine. That is sheer nonsense, and for the life of me I cannot understand why the Government did not themselves move this Amendment, which indicates what has 862 been tried out over the past 15 years. Your Lordships will observe that the Acts to which this Amendment refers extend over a period of 15 years. There are eight Acts which have been in operation from various dates during that time, and they have contributed in no small measure towards making the magistrates' courts effective. Now, all that is to be swept aside on the assumption that fewer people would be sent to prison.
§ Our Judiciary is admired throughout the world. This applies also to our magisterial system, and the fact that it has been operated in accordance with certain rules, which I call the "Westminster rules" and which have been improved from time to time, has indicated that the opportunities which have been given to magistrates to help in the removal of crime, so far as that could be done, have in fact been put into proper practice by reliable persons who, in many instances, have given the greater proportion of their lives to helping in the administration of justice. They have felt that it is a social duty on their part because of their particular abilities. Today, they are being told that all that has been done before is sheer nonsense so far as motoring offences are concerned, and that in future when a motoring offence comes before them all they can do is to impose a fine of £400. Apparently it is thought that that is not serious; it is a triviality, and that it is not necessary to send a person to prison. Obviously, if the prosecution decide that the case is serious they can take it to another court. The magistrates' court itself may impose a fine of £400, and apparently the offence may or may not be considered as serious. This is an absurd state of affairs. There are cases where a fine of £400 could be imposed instead of putting into effect the processes of detention which this House and the other place had thought necessary in order to provide for effective justice.
§ I know that the noble Viscount, Lord Colville of Culross, and the noble and learned Lord the Lord Chancellor, are convinced that they are right. The question is, how can I persuade them that they are wrong? I am convinced that they are wrong, and that if they persist in their attitude it will deal a serious blow—and I mean a serious blow because this is not a trivial matter—to our judicial 863 system. This is something which is beginning to undermine the whole edifice of the Judiciary in this country and it cannot be treated in a flippant manner. It is in fact the commencement of an operation which is destined to have very serious consequences because it is undermining the powers of the court of first instance—which after all is an important court—and frustrating the magistrates, who are anxious to do their best.
§ The magistrates are convinced that by the clause as it stands the Government intend to move in a disastrously wrong direction. They are supported in this view by the justices' clerks who serve their courts; and in an humble way may I say that they are supported by myself as well. The noble Baroness, Lady Phillips, and other noble Baronesses and I have endeavoured to show that the removal of imprisonment as a penalty for motoring offences from the jurisdiction of the magistrates is a grave error. When we come to examine its effects, as I shall endeavour to do in moving the Amendment (and I hope your Lordships will forgive me if I take somewhat longer than I ought to take, because I feel that one has to explain this, particularly to those who are not themselves magistrates), I hope and believe that your Lordships will give this Amendment your approval.
§ As I have indicated, this Amendment refers to 38 sections of eight Acts, passed at various times over a period of 15 years, and while I appreciate that the clause refers to road traffic offences only, nevertheless its passage without amendment would certainly be the thin end of the wedge and would remove the methods which the magistrates have been required to use over so many years. I have it from a reliable source that many magistrates, particularly in juvenile courts, are considering resigning from the Bench if the clause is passed in its present form.
Yes; that is so, my Lords. I would not say it unless I had been told by a reliable source; and the reason is that they feel it would be useless to attempt to deal at all effectively with road offenders. The magistrates would be absolutely frustrated in their work. 864 Is it not ridiculous that fines of as much as £400 may be imposed for some offences where a magistrate is called upon to give a decision where the prosecution is not prepared to consider the case sufficiently serious to be sent to a higher court, and to have no other course open to them? If a fine is imposed it is practically impossible to enforce its payment.
As I have said before, I hold the noble Viscount and the Lord Chancellor in very high esteem but I should like to draw the attention of the House to the speech made by the noble and learned Lord the Lord Chancellor at cols. 568 and 569 of Hansard for December 20, 1973. He said—and this is at the bottom of column 568:…the answer to the noble Baroness, who asked what we are to do with a man who has not paid his fines and comes before the court again, is simply to send him to the Crown Court to get a proper sentence.I do not want to re-fight a battle, but the noble and learned Lord the Lord Chancellor is incorrect if he implies that with drunken or dangerous driving there is a power to commit an offender to the Crown Court for sentence.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)
My Lords, the noble Lord is really barking up a wholly wrong tree. I do not want to reiterate what I said in the earlier debate, but it was perfectly plain that my intention throughout that debate was that if a person was charged with an offence which he had repeatedly committed before, he ought to be taken to the Crown Court on indictment. I said nothing at all about committing for sentence.
Well, my Lords, I do not want to enter into a long argument. If the noble and learned Lord the Lord Chancellor says that is what he intended to say, I can only say, with the greatest respect, that it was not the interpretation put on what he actually said; and if the persons who brought the matter to my notice have misinterpreted it, or if I have, I am sorry. I am glad that the noble and learned Lord has now put the matter right because it is obvious, if the clause stands as it is at present, that it cannot mean sending for sentence. I have the wording here, but am quite satisfied with the interpretation that the noble and learned Lord the Lord Chancellor has 865 given. It helps to prove my case, because obviously all one can do is to say, "Do not be a bad boy in future; pay a fine."—a fine which is not enforceable in fact; it may be in theory, but not in fact. Everyone knows there are a large number of people who have been fined but who cannot possibly be sent to prison in consequence of the fact that they have not paid the fine.
My Lords, may I say why I am concerned about this matter? What are these penalties?—Let me take some examples. Attendance centre orders of 12 to 24 hours for juvenile adults up to 21 years of age, the number of hours to be worked off in two-hourly periods, mostly on Saturday afternoons, usually on alternate Saturdays. This is decided by the warden of the centre. There are only two senior centres for offenders of 17 to 21 years of age, one in Manchester and one in Greenwich. Their use is mainly for persistent road user offences and they are also useful in preventing less serious hooliganism at football matches because they prevent the offenders from going to the matches. There are senior centres, but I do not want to go into great detail on those.
In practice, the two-hour periods are divided into approximately one hour's physical exercise and some cleaning chores, and one hour's constructive tuition. At Greenwich there is a course of car and motor-cycle maintenance, intended to appeal to men who persistently take and drive away cars, so that they can understand and take a proper interest in cars, for which they obviously have some sort of obsession. Then there are lectures in citizenship, and so on. The juvenile centre in London is run by the police. These are centres to which in future the courts will not be able to send an offender for a motor offence. In London the centre is something like a boys' club. There, too, they have physical exercises and are taught useful hobbies, basket work and so on. Experience has shown that several of those who have gone through juvenile attendance centres have now joined local youth clubs. There is opportunity for private talks with the warder and other instructors with whom the boys or men can discuss problems. The attendance centres have been used considerably by juvenile courts as they have the double effect on the youngster of providing an opportunity to do con- 866 structive work, and also some punishment in the necessity to give up some leisure hours at weekend.
I do not want to go into detail about the other penalties, such as the possibility of keeping a man for the day in charge in the magistrates' court, in cases which do not justify harder penalties. Even that is one of the penalties that will be removed; and so are the various other penalties or opportunities which are given by the Acts as they stand. I should imagine that those of your Lordships who are in the Chamber at the moment and are magistrates will understand that what I am saying is correct, and that this is the feeling of the vast majority, if not all, of the magistrates in this country.
My Lords, why should the Government be stubborn about not doing something which they have said they will consider? It is not suggested that the matter is one which does not require or justify consideration. The Government have said to the magistrates in various places—indeed, in this House—that they would consider dealing with these matters at a later stage. The whole idea of the various Amendments that we moved earlier to enable magistrates' courts to imprison was mainly on account of the fact that under the Bill as it stands all these methods would be taken away from magistrates' courts. I think this House will agree that this would create an impossible situation. I hope the Amendment will be carried and that the Government will see to it that in another place the clause is not revived in its present form. I beg to move.
§ 4.28 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I hope that the noble Lord, Lord Janner, and other Members of the House will forgive me, but I do not propose to go back over all the arguments of principle that have been raised in this House about this subject on the previous stages of the Bill. The noble Lord, Lord Janner, has made, and is entitled to make on Third Reading, what is in effect a Second Reading speech on this point. I do not object to that in any way. I understand that what lie is saying is largely a plea for, as it were, those powers in magistrates' courts which flow from the fact that the offences carry imprisonment, although they are not only custodial sentences. I do not know 867 whether any one remembers, but at cols. 540 onwards of Hansard on Report stage, I dealt with every single one of these points at considerable length, and argued, with great regret (and I think I made the regret plain at the time), that the Government could not see their way as a matter of principle and as a matter of practice, as it were, to reimport these non-custodial sentences so that magistrates could continue to use them. The noble Lord, Lord Janner, did not refer to the arguments I put forward—I do not blame him for that—but if noble Lords cast back their minds, they will rememeber that I argued this fairly fully. At the end of that particular argument the House divided, and the argument for which I was the proponent held the day.
I do not want to go over all this again, but to deal only with one thing. It is something I did not then cover, so therefore it is novel, and it relates to juvenile courts. I know there is a particular problem here. I do not know where the noble Lord got his information from that certain juvenile courts magistrates propose to resign. I am sorry to hear this and hope that perhaps on second thoughts they will not do so, but I do understand that there are problems for the magistrates who run the juvenile courts when one has to deal with youngsters, usually boys, who are persistent road traffic offenders, particularly in areas where secure community homes are not provided.
I appreciate that there are severe problems. I. wondered, therefore, what was the extent of the problem and what would need to be done about it. I assume that in these cases the juvenile court magistrates do not make much use of the power to bring parents along and bind them over or get recognisances from them, or indeed fine them. I have not got the figure, but I assume that this is not a popular course with the magistrates, although it is available to them under the law. They would rather deal with the juvenile himself. The noble Lord said that fines were not very effective; at any rate he said that they cannot be enforced. I must make it perfectly plain that there are goodness knows how many offences in the criminal calendar which do not carry imprison- 868 ment for which fines are available, for which fines are passed by juvenile courts and other courts, and they are, I assume, enforced, and the mere fact that we are taking away the power to imprison for certain road traffic offences really does not seem to me to make it impossible for fining to take place in cases where the juvenile court wish to impose it simply because of the removal of special powers of warrants to be issued in cases where somebody does not turn up. I am afraid I really cannot accept that argument, because there are certain other cases where imprisonment is not available and yet the magistrates satisfactorily impose fines.
What I really wanted to look at was the detention centre and attendance centre argument. Let me first of all make it plain that I accept that it is a very rare occurrence indeed for a juvenile—that is, someone from 14 to 17 years old—to be committed to the Crown Court for trial, because, as I understand it, it is only where he is tried with somebody else who is older that this happens. Indeed, I observe that in 1972 there was only one finding of guilt for a person of this age brought before the Crown Court for road traffic offences, and that person was fined, so the vast majority have been dealt with by the magistrates. May I look at the statistics. In 1972, there were just over 19,000 findings of guilt for persons between 14 and 17 for road traffic offences.
The noble Lord, Lord Janner, said that attendance centres are widely used. Well, they are not. Out of 19,000 findings of guilt, there were 184 attendance centre orders. I dare say the attendance centres are admirable, but they are not widely used. I do not know what the percentage is, but those are the figures. I look at the detention centre orders, which are at the moment available. Incidentally, I have seen to it that more junior detention centre places were made available recently although I do not think this applied in 1972. Of the 19,000 findings of guilt, there were 344 detention centre orders and 340 committals to borstal. So out of 19,000 juveniles, we have something in the region of 800 people who were dealt with in one way or another custodially. That does not seem to me to be a very large number. Included in that, although I think the numbers are fairly small, are a number where one or 869 other of these custodial orders was made for driving while disqualified. I have just been told that there were 39 orders against parents—fines, damages or compensation—and 8 orders for recognisances to be entered into; that is for road traffic offences. So I assume that that part of the 1969 Act has not been used.
I go back to my argument. There were a few of these custodial sentences where the sentence was imposed for driving while disqualified. That power remains. I want to see what is available to the magistrates and what is a typical case that comes in front of them. Take the road traffic case. First of all, let us remember that what used to be taking and driving away, which was a road traffic offence until the Theft Act, is now dealt with under the Theft Act and therefore is not involved in this. A frequent reason why a juvenile, particularly somebody who is persistently involved in meddling about with motor cars, comes before the juvenile court is for what used to be taking and driving away. That is not affected by the Bill. Power to send him to a detention centre remains; this is in no way taken away. Secondly, I should think that the juvenile courts—I would be surprised to hear to the contrary—are disinclined to send juveniles to detention or attendance centres on the first occasion when they appear for misbehaving in some way with motor vehicles. If the offender is between 14 and 17 there is a very strong probability that if he misbehaves with a motor vehicle he drives it without an adequate licence, and I imagine that on the first occasion he gets disqualified. The next time he misbehaves and comes back to the juvenile court he can be prosecuted—and indeed I would expect him to be—for driving while disqualified. In those circumstances, under this Bill the power to send the person concerned to a detention centre or attendance centre remains.
We are therefore left with the rest. After all, if you have a charge of dangerous driving or careless driving or tampering with vehicles, or whatever it is, and it is accompanied by a charge of driving while disqualified, there is still power to send to a detention centre. What we are taking away is what I should have thought to be a fair and a minimal number of cases for imprisonment. I have set this out time and again. The figures that I 870 have given to-day specifically relate to the juvenile offender, because this is something I am worried about. I do not say that the Government have stopped thinking about this, but I do not believe that we can deem this whole list of offences set out in the Amendment to be imprisonable for the purpose of applying all these non-custodial penalties in the setting of these road traffic offences by themselves.
My Lords, I hope I have been reasonable and that I have tried to argue this matter carefully to show that I have thought about it. I hope that the combination of what I said on Report, together with what I have said to-day indicates to the House that the magistrates are not in practice going to lose powers that they employ with any frequency. I hope also that I have been able to establish that in the case of adults there will still be the possibility in serious cases to indict and send to the Crown Court, where any sentence can be imposed, including imprisonment, and in the case of juveniles there are still powers for commoner sorts of offences. If fines against the persons concerned are considered by the courts to be inadequate, I just draw attention to the fact that parents can be involved. I hope that the noble Lord will realise that we do not do this in any sense, as he tried to put it, as beginning to undermine the whole edifice of the judiciary. I have made it pellucidly clear that we are doing no such thing. There is no onslaught upon the integrity or the power of importance of the magistracy. I have said this over and over again, and so has my noble and learned friend on the Woolsack. It comes very much more importantly from him than it does from me. But we have both said it and we both mean it—there is no question of undermining this edifice. Nor is there any question of treating this, as the noble Lord suggested, in a flippant manner. I treat it very seriously. I have attempted to argue it very seriously, and I hope that the House will be convinced by my arguments.
§ BARONESS PHILLIPS
My Lords, I will not delay the House very long because my noble friend Lord Janner has done so much research on this and has presented the case. But I should not like it to be thought that I have changed my views in any way since the early stages of the Bill. 871 I find the noble Viscount's arguments curious. They are skilful, as he is very practised, and very eloquent. But what he seemed to me to be saying, in essence, was that because the magistrates have not used the powers of imprisonment then they do not need them; so the powers should be taken away and the magistrates should deal with these matters simply through fines.
The mere fact that, from the figures given, magistrates have not necessarily used even the powers relating to attendance centres is not a true reflection of the situation, as I feel sure the noble Viscount knows. I know from sitting in court that there are many things that one would like to do but that in fact the facilities do not exist. I cannot speak for the juvenile court. There are many occasions when one would like to deal with offenders in a particular way, but we all know that many of the services written down on paper do not in fact exist when it comes to the actual carrying out. I do not think that the figures show a completely true reflection of the way these sentences would have been imposed had there been more attendance centres available.
While I have not heard of magistrates proposing to resign, I cannot give the noble Viscount, or the noble and learned Lord the Lord Chancellor any comfort on this matter. The feeling of the magistrates on this matter is quite strong. I am very proud to be a magistrate. Here is a group of people who work voluntarily to carry out this arduous and not very pleasant service, and if they, as the consumers here, feel that the Government are not handling this in the way that they would like, it is only fair that we should state their case in this House. I hope that when the Bill goes to another place they may be a little more fortunate in this matter.
My Lords, I listened with great interest to what the noble Viscount said, but I am bound to say that I
§ was not convinced. He has overlooked the fact that quite recently the London branch of the Magistrates' Association undertook a survey on this particular subject, and they drew up a report which strongly recommended that there should be more senior attendance centres opened.
VISCOUNT COLVILLE OF CULROSS
My Lords, I really cannot let the noble Lord get away with that. We argued interminably about this on the Criminal Justice Bill.
My Lords, what I am trying to do is to get the noble Viscount to see that there are people who are called upon to give a certain service, and who give that service, and know what they are talking about. The Magistrates' Association and the clerks to the justices feel very strongly on this point, and indeed the Government said to the committee of magistrates studying senior attendance centres that they would hold up the provision of more attendance centres until the community service orders scheme had been fully put into operation. How can he say at this moment that he is going to deprive them of all this? It is a ridiculous position. Is he saying that what has been going on all these years was all useless, that the operating machine has been futile, that it was not working, and that it should have been done away with before? Of course he cannot say that. If he is attempting to do away with it for one set of offences, what is there to prevent other steps from being taken to deal with other kinds of offence in a similar way? I do not think that that is an argument.
My Lords, this is a matter of great public interest, and is regarded as such by the public and by the magistrates. I am certainly going to ask that the House should divide.
§ 4.45 p.m.
§ On Question, Whether the said Amendment (No. 10) shall be agreed to?
§ Their Lordships divided: Contents, 29; Not-Contents, 89.873
|Amherst, E.||Foot, L.||Janner, L. [Teller.]|
|Amulree, L.||Gamsworthy, L.||Leatherland, L.|
|Birk, B.||Hacking, L.||Longford, E.|
|Brockway, L.||Henderson, L.||Ogmore, L.|
|Burntwood, L.||Henley, L.||Phillips, B.|
|Champion, L.||Hoy, L.||Rea, L.|
|Chorley, L.||Hughes, L.||Rhodes, L.|
|Shepherd, L.||Stocks, B.||Taylor of Mansfield, L.|
|Shinwell, L.||Stow Hill, L.||Wells-Pestell, L. [Teller.]|
|Snow, L.||Summerskill, B.|
|Aberdare, L.||Ebbisham, L.||Mancroft, L.|
|Aldenham, L.||Eccles, V.||Merrivale, L.|
|Alexander of Tunis, E.||Elliot of Harwood, B.||Mersey, V.|
|Alport, L.||Emmet of Amberley, B.||Milverton, L.|
|Amory, V.||Erskine, of Rerrick, L.||Molson, L.|
|Atholl, D.||Exeter, M.||Mowbray and Stourton, L.|
|Balerno, L.||Ferrers, E.||Northchurch, B.|
|Belhaven and Stenton, L.||Fortescue, E.||Onslow, E.|
|Berkeley, B.||Gage, V.||Platt, L.|
|Brookeborough, V.||Gainford, L.||Redesdale, L.|
|Brooke of Cumnor, L.||Gowrie, E.||Roberthall, L.|
|Brooke of Ystradfellte, B.||Greenway, L.||Ruthven of Freeland, Ly.|
|Caccia, L.||Grenfell, L.||St. Aldwyn, E. [Teller.]|
|Clithcroe, L.||Grimston of Westbury, L.||St. Helens, L.|
|Clwyd, L.||Hailes, L.||Sandford, L.|
|Coleraine, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Sandys, L.|
|Colville of Culross, V.||Selsdon, L.|
|Conesford, L.||Harvey of Prestbury, L.||Sempill, Ly.|
|Cottesloe, L.||Hawke, L.||Strange of Knokin, B.|
|Courtown, E.||Headfort, M.||Strathcona and Mount Royal, L.|
|Cowley, E.||Hood, V.|
|Craigavon, V.||Hylton, L.||Strathspey, L.|
|Craigton, L.||Hylton-Foster, B.||Sudeley, L.|
|Crathorne, L.||Killearn, L.||Tweedsmuir, L.|
|Daventry, V.||Kilmarnock, L.||Tweedsmuir of Belhelvie, B.|
|Davidson, V.||Kinloss, Ly.||Vivian, L.|
|de Clifford, L.||Kinnoull, E.||Wakefield of Kendal, L.|
|Denham, L. [Teller.]||Limerick, E.||Ward of Witley, V.|
|Derwent, L.||Loudoun, C.||Windlesham, L. (L. Privy Seal.)|
|Digby, L.||Lucas of Chilworth, L.||Young, B.|
On Question, Motion agreed to.
§ Moved, That the privilege Amendment be agreed to.—(Lord Aberdare.)
§ On Question, an Amendment (privilege) made.
§ 4.53 p.m.
§ LORD ABERDARE
My Lords, I beg to move that this Bill do now pass. In doing so, I should like very briefly to take the opportunity of thanking all of your Lordships who have contributed to the passage of the Bill. We have a considerable number of experts in this House on the matter of road traffic. We have had some extremely useful debates on the subject and have made some very important Amendments, particularly on the subject of road safety. We have included a very significant new clause enabling the wearing of seat belts to be made compulsory, about which we had a wide-ranging debate and on which your Lordships' views will be very useful to 874 the Government when making decisions in the future.
I should like to thank my two noble friends Lord Colville of Culross and Lord Mowbray and Stourton, who have done most of the work on this side of the House; I am very grateful to them. I should also like to thank the noble Lord, Lord Champion, and his helpers for their co-operation. We have not agreed on all matters that have come before us, but we have conducted our debates amicably, and I thank the noble Lord, Lord Champion, for his co-operation in many of the administrative arrangements that have been made in connection with the Bill. My Lords, I beg to move that this Bill do now pass.
§ Moved, That the Bill do now pass.—(Lord Aberdare.)
§ LORD CHAMPION
My Lords, this is undoubtedly a useful measure to which we are bidding goodbye today. As I said on Second Reading, it is something of a hotch-potch, but it is none the worse for that. I very much regret that the Government did not accept some of the excellent Amendments that the 875 Opposition moved in an attempt to improve the Bill, but it is always the fate of Oppositions in this House and in the other place that we so seldom manage to persuade the Government that they are wrong. But I was glad that the right reverend Prelate the Bishop of London managed to persuade the House that the Government were wrong, and that we passed the new Clause 7 which deals with parking on pavements. Clearly, the Government were not in favour of the Amendment and it will now be interesting to see what they do in another place, when they consider this Bill and, in particular, that Amendment.
The Opposition are very grateful to the Government for starting the consideration of this Bill in this House, and for enabling us to take a first look at it in times when we are not under particularly heavy pressure. We see the Bill on its way, hoping that it will bring about improvements in road safety and in certain other aspects. I cannot let the Bill pass without thanking individual Ministers who have been in charge of this Bill for the care which they have brought to the consideration of all the Amendments and for their unfailing courtesy to the House. This is my first opportunity to congratulate the noble Lord, Lord Aberdare, upon the step up which he has taken during the period when this Bill has been going through the House. I cannot imagine that that step up has been made because of anything arising out of this Bill, but we are happy to see it and we certainly congratulate him. I end by hoping that this Bill will prove to be the source of improvement for which the Government hope.
§ On Question, Bill passed, and sent to the Commons.