HL Deb 01 February 1977 vol 379 cc733-832

3.8 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee.—(Lord Harris of Greenwich.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Lord GARDINER moved Amendment No. 55: Before Clause 36 insert the following new clause:

Limit on date for initiation of proceedings for recovery of tax.

. From such date as the Secretary of State may by order made under section 41(1) appoint for bringing into force Part III of this Act, no proceedings shall be brought in any Magistrates' Court for the recovery of any tax or rate.

The noble and learned Lord said: I beg to move Amendment No. 55. None of the Amendments which I have tabled has been tabled in any spirit hostile to the Government. They all, except one short one, have the following characteristics in common: They are all recommendations of a Committee called the James Committee, in whom everybody has expressed great confidence, and this Part of the Bill is based on the Government's confidence in their recommendations. Secondly, they are all recommendations to none of which my noble friend Lord Harris of Greenwich referred on the Second Reading of the Bill. When he came to that point he did not say, "I ought to say here that there was a relevant recommendation of the Committee, but we have rejected it for the following reason."

Thirdly, they are all recommendations I referred to on the Second Reading of the Bill and specifically asked why the Government have rejected the recommendations. Fourthly, when my noble friend Lord Harris came to reply to the debate he did not refer to any of them in any way at all. Fifthly, I waited until the last possible moment to put down any of the Amendments because I thought that perhaps my noble friend might write to me about the matter, but he did not. I cannot say that I am amazed by all of this because I remember a previous Bill in the last Session, or the one before—another Home Office Bill—where exactly the same thing took place.

I would respectfully suggest that where, as here, we have a non-Party Bill, as we all agree this is—it is a matter of reforming the law—it is only sensible to put one's cards on the table, and that this attitude of secrecy does not help the House or the Committee in itself. I know that I was reproved by some of my colleagues when in office because I gave the noble Viscount, Lord Colville of Culross, when he was handling law reform Bills, a copy of my notes on clauses since it seemed to me then that he would understand from the start exactly why the Government were proposing each clause of the Bill and why they had not proposed other clauses of the Bill.

This Amendment has quite a respectable history. Within the first six months of taking office I appointed a Departmental Committee on the Enforcement of Judgment Debts, and if it is said, as it may well be, "Why on earth did you do an extraordinary thing like that, because you had the Law Reform Committee and you were hoping to persuade Parliament to appoint a Law Commission?", I can only say that I did it because I knew that this branch of the law was extremely obscure and was full of anomalies; that it was a part of our law which had just grown, like Topsy; that nobody had ever planned it; that it badly needed overhaul, and that it had never had examination of any kind at all. Indeed, the only textbook on the subject—and that covered only part of it—was an old book called Mather on Sheriff.

The difficulties were, first, that a lot of people were going to prison, which did not help them to pay their debts. It was only in the case of maintenance orders that a man's wages could be attached, deducted by his employer and sent to the creditor. That was a very much more sensible proceeding, but the Trades Union Congress had let that through only with reluctance and was opposed to any extension of it. One method of enforcement was the sheriff's fi. fa., when the sheriff's officers came and removed all your belongings from your house. The sheriff was responsible for this, but he did not do it all himself because he is rather a grand individual. It was the under-sheriff, who was a solicitor, who did it all; and mostly in the High Court, because the costs were higher in the High Court than they were in the county court.

Then there were judgment summonses for an order that the debtor pay so much a month, when, in default of paying one instalment, he could be sent to prison. It was usually the young barrister's first brief—it was only a guinea—to attend on judgment summons day in the High Court or the county court, and it always took up a great deal of time, except in one court in central London, where we had a very jovial judge (he was somewhat unorthodox, but we all liked him) who, on judgment summons day, used to come into court and say, "Hands up everybody who is prepared to pay ten bob a month". We knew that that was less than the going rate, so we all put our hands up and that was that.

I thought a specialised committee—Mr. Justice Payne kindly acted as chairman—should quietly examine all this, as they did for just on four years. So it was not until my last Administration of Justice Bill that I got a chance to implement any of it; but one of the things they said was that everybody ought to pay their income tax and their rates, but if they do not it is not a criminal offence not to, and that these and other cases where justices of the peace had to deal with debts which by Statute can be proceeded with in a criminal court though not involving a criminal offence—Government Departments, some nationalised industries—ought not to be cluttering up the magistrates' courts at all but ought to be transferred to the civil courts. I will not bother to read the 25 pages or so in which they go into this in great detail and examine all the objections. They won round the Trades Union Congress on the attachment of earnings; and on this point they concluded by saying in paragraph 198 of their 435–page Report: We think it would be anomalous for proceedings for the recovery of sums that are exclusively civil in character to continue to be brought in a magistrates' court. It follows that it would be of considerable advantage if magistrates' courts were to become responsible for the recovery only of…sums enforceable as a sum adjudged to be paid by summary conviction, and…orders enforceable as affiliation orders".

I was unable to implement that part of the report or one other part, which proposed the establishment of an enforcement branch in every county court office, which I think would have been a good thing also; but in this Administration of Justice Bill I also had to implement the Report of the Winn Committee on the trial of personal injury actions, the abolition of the Probate, Divorce and Admiralty Division and the substitution of the Family Division of the High Court, and so forth. Since I have left Office I have from time to time inquired of my noble and learned and indeed most illustrious successors how they were getting on with implementing the remainder of the Payne Committee's Report, but not, I am afraid, with any great success.

The Magistrates' Association has been asking for this for some time, and when the James Committee considered the additional burdens which they were putting on the magistrates they considered this and in paragraph 275 of their report said: The Payne Committee on the Enforcement of Judgment Debts, which reported in 1968, recommended that all proceedings for the recovery of tax debts should be taken in the High Court or the County Courts and that proceedings for the recovery of rates should be brought in the County Courts. The implementation of these recommendations would have the effect of relieving magistrates' courts not only of the long court lists of rates cases, but also of the time-consuming means inquiry hearings which are required in the event of non-payment".

There is nothing further, I think, that I can say until we know what has led the Government to reject this recommendation, except to add only that my Amendment is designed to bring out the point in the fewest number of words. It is not intended to be a redrafting Amendment. Indeed, it would be necessary to provide for the repeal of various Statutes, to create a civil action for rates, and so on and so forth. But it is the simple point: now that we are putting these additional burdens on magistrates, ought we not, in accordance with the recommendations of the Payne Committee, of the Magistrates' Association and of the James Committee, now to transfer at least taxes and rates from these courts to the civil courts? I beg to move.

The LORD CHANCELLOR (Lord Elwyn-Jones)

The substance of my noble and learned friend's Amendment is in essence to transfer to the county court the present jurisdiction of magistrates' courts for the enforcement of rates and taxes. As my noble and learned friend has said, I agree that the Amendment has a very respectable history and, indeed, I am sympathetic with the Amendment in principle. After all, the county court is par excellence the court for the recovery of civil debts, which is in essence, I agree, what these are, and there is certainly an argument for saying that it is anomalous to find rates and taxes enforced through the magistrates' courts. But the fact remains that the distribution of functions between our different courts is usually the result of history, and in consequence is not always tidy, orderly or logical. If one looks at the magistrates' courts themselves, the anomaly to which this Amendment relates is not unique. One can think immediately of the jurisdiction of magistrates in licensing matters and, of course, in matrimonial proceedings.

My noble and learned friend has properly drawn the attention of the Committee to the Report of the Payne Committee on the Enforcement of Judgment Debts, and it is quite true, as my noble and learned friend has said, that it recommended that all proceedings for the recovery of tax debts should be taken in the High Court or the county court, and that proceedings for the recovery of rates should be brought in the county court. That recommendation was part of a package of recommendations which included, in particular, the abolition of imprisonment for civil (including tax) debts, the establishment of an integrated enforcement office and the creation of a wholly new enforcement system. The Payne Committee recommendations, the Government have thought, should be dealt with in stages.

Effect has already been given to the most important of the Committee's proposals by the Administration of Justice Act 1970, by which imprisonment for civil debts other than maintenance, rates and taxes was abolished, and the county court was authorised to make attachment of earnings orders. The establishment of the suggested integrated enforcement offices and the creation of a new enforcement system would involve a considerable increase in the bureaucracy and an increased number of civil servants and further financial expenditure, none of which is immediately attractive at this point of time. The Government are still looking at the matter but, in the light of the problems to which I have referred, I have to disappoint my noble and learned friend by again saying that there is no immediate proposal to proceed with those two recommendations. The Payne Committee in its report recorded that almost all those consulted in this matter were in favour of leaving the jurisdiction with the magistrates' courts. These, as I understand it, included the magistrates' Association itself; but if I am wrong about this I am willing to be corrected. They included the Justices' Clerks' Society, all the local authority associations, and the Rating and Valuation Associations. As I understand it, the local authorities still take the view that county court proceedings (which are the alternative) are less speedy and less flexible than those in the magistrates' courts and would be more costly. Recently the Association of District Councils has expressed a similar view.

As for the tax position, it is the case that the Inland Revenue authorities oppose the tax change on very much the same grounds as do the local authorities in regard to the proposal on rates. So there is a formidable body of all those concerned in this matter who are wholly opposed to what is proposed in the Amendment. The James Committee dealt with the matter but briefly, saying that the civil jurisdiction of magistrates was outside their terms of reference. They said that they had not examined the matter in any detail but they pointed out, however—and it is right that I should say this—that implementation of the Payne recommendations would have the effect of relieving the magistrates' courts not only of the long court lists of rate cases but also of the time-consuming means inquiry hearings which are required in the event of non payment.

While I accept this, your Lordships nevertheless must bear in mind that implementation would not have the effect of making the work disappear; it would simply transfer the burden from one court to another, in this case to the county court. There, the work would principally fall on the registrars who are already very heavily burdened. Indeed, I propose to add to the burden by the proposal I am making in regard to undefended divorce procedures. I should be very reluctant to add further to the burdens on the registrars by transferring to the county courts responsibility for enforcement of rates and taxes—and I say this particularly because, although the principle of what my noble and learned friend says is right, I am not aware that there has been any suggestion that there is anything unsatisfactory or defective about the way in which enforcement work is now being carried out in the magistrates' courts. I should have thought that this was really the crucial question, if I may say so with respect. Certainly, neither the Payne Committee not the James Committee found that the way in which enforcement was done in the magistrates' courts was unsatisfactory.

There is another difficulty about what is proposed. This is that if jurisdiction in respect of rates were to be transferred to the county court it would be necessary for the nature of the rates themselves to be altered. Although it is convenient to refer to them loosely as civil debts, as I have done myself, it is not quite accurate. Strictly speaking, they constitute a statutory liability which can be enforced by distress or by committal through a magistrates' court. If their recovery were to be transferred to the county courts, their nature would have to be converted into true civil debts for which judgment for recovery could be enforced in the normal way. But I am not quite sure whether that method of enforcement would, in practice, be entirely suitable for the recovery of these special public debts. For these reasons, I must disappoint my noble and learned friend by saying that I am afraid that I cannot at present agree to the Amendment for the practical reasons that I have incidated in my observations.


May I comment upon the speech to which we have just listened by telling a parable? There was once in the Parliament of Heaven at the Committee stage of an important Bill a proposal for the closure of Hell. This progressive measure had long been advocated by liberal theologians but the Chancellor, whose name was Peter, had to read the Government brief. And how well he read it!—almost as well as the noble and learned Lord. He said that he had consulted the Society of Devils and the Lesser Torturers and the various "Doorkeepers" of the two establishments and that they had all found various technical objections to the proposal. But the real reason, of course, why there was this unholy alliance between St. Peter and his opposite numbers was that the closure of the establishment would have put them all out of a job. The real reason why the Chancellor is opposed to this is because the revenue authorities and the rate collecting organisations want to send people to prison for debt—which other people are not allowed to do. That is the only reason and that is what the Government brief means.


I am in the hands of the Committee. I should have liked to have heard other views. I do not know what view the Magistrates' Association expressed in 1968 but the James Committee followed the very sensible practice of the Law Commission in publishing their provisional proposal and inviting opinion on that. When the Magistrates' Association read that it was going to be proposed that rates and taxes should be transferred from the magistrates' courts to the civil courts, they said, in paragraph 12 of their memorandum: We agree entirely that consideration should be given to relieving magistrates' courts of certain aspects of their jurisdiction. The Association has already recommended that rates, income tax and certain regulatory aspects of licensing law should be transferred to the civil courts". Unless other Members of the Committee want to press the matter, I shall, of course, consider very carefully what my noble and learned friend has said. We could perhaps consider it again—


Before the noble and learned Lord withdraws his Amendment, may I ask this question? How many people are in jail at the moment for not paying taxes or rates?


Without notice, I cannot answer that question. I have no idea. I think it is probably none, but I do not know and I should not like to give a positive assurance. I should like to say this about the Hellish parable that the noble and learned Lord introduced. It appears that Hell is just as properly proper as Greenwich, Bath or Jodhpur, according to his comparison.

Even in civil proceedings, if the refusal to pay is deliberate and not based on inability to pay, then, as the noble and learned Lord knows, in that situation the gates of the prisons might still be yawning wide for the offender. I will try, before Report stage, to find out whether there are any persons in prison now for non-payment of taxes and rates. The information is obviously not readily available to me.


In my Sunday paper I read of one poor fellow who was imprisoned as a result of £163 of back rent by a local council. A kind-hearted comedian paid the £160-odd and bailed him out and thus cleared him of the debt, so there was one person in prison.


That was in respect of a different breach of the law, if I may put it as neutrally as I can. That was not on rates and taxes. I will find out about this matter. I hope I am right.


As one who has long lists of people who are unwilling or unable to pay their rates before me in court, certainly once a fortnight, I should like to shelve those cases and send them to the civil court. But at the same time I should like to feel that the ultimate sanction of sending somebody to prison for wilfully not paying the rates should somehow in one court or the other be maintained. I hardly ever send anybody to prison; indeed, I never send anybody to prison unless I know very well that if I do they will pay within the hour if they are sent downstairs.


It seems to be an effective threat and sanction, I am afraid. It is not unimportant that rates should be paid, incidentally, to say nothing of taxes.


I will consider carefully what my noble and learned friend has said. I may raise the question again on the Report stage. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdraw.

3.32 p.m.

Lord GARDINER moved Amendment No. 56: Before Clause 36, insert the following new clause:

Safeguards for the defence in summary trials.

. Before giving his consent to summary trial or at any time before the opening of the prosecution case, a person charged with an offence triable either way shall be entitled to receive, on request, copies of the statements of the witnesses on whose evidence the prosecution proposes to rely; and if the prosecution calls as a witness a person whose statement has not been so served, the defendant shall be entitled to an adjournment to enable it to be served; and if the prosecution considers that it would be against the interests of justice to provide copies of the statements, it may apply to a magistrate for a direction that they should not be served; and where witness statements have not been prepared or where a magistrate directs that statements should not be served, a summary of the facts upon which the prosecution intends to rely shall, on request, be supplied to the defendant.

The noble and learned Lord said: This is another recommendation of the James Committee. All lawyers know, and the noble Lord, Lord Wigoder, with his great experience, has told us, that the main reason why lawyers may advise somebody to go for trial by jury rather than before the justices is not because they think the chance of getting an acquittal is higher, but that if you go for trial you then get copies of the witnesses' statements (which is evidence to be given by the witnesses for the prosecution) so that you know exactly the case that you have to meet; whereas in the magistrates' court you do not. The practice varies a little, but I think in most courts you do not get the statements. The James Committee accordingly thought that that ought to be done.

I hold no particular view as between different Amendments. I am not sure whether the noble Lord, Lord Wigoder, is here at the moment. There was an Amendment in the name of the noble and learned Lord, Lord Hailsham of Saint Marylebone, which we discussed briefly last time we had the Bill before us. There is this Amendment and there is the following one, No. 57, in the name of the noble Lord, Lord Wigoder. I hold no particular brief for my Amendment except that it follows exactly the wording of the recommendation of the James Committee. On the face of it, it seems to me sense that if we want people to accept trial before the justices where they have a choice, then they should be able, before they decide whether or not to exercise that right to have copies of the statements of the witnesses, as they would do if they were in a Crown Court. It will help to reduce the numbers who go to trial before a Crown Court.

The only reason given on the previous Committee stage of the Bill by my noble friend Lord Harris of Greenwich for not accepting the recommendation was that it would cost £4 million. I find it very difficult indeed to understand how the cost can be anything remotely like that, £4 million, for handing over statements of the witnesses which have to be produced sooner or later in any case for the prosecution themselves. The James Committee have on all points obviously thought of the other side in relation to the previous Amendment in thinking of the additional burden on justices or magistrates' courts; they thought of an equivalent transfer of work which ought not to be there. Here they were thinking of the position of someone considering in an "either way" case and whether or not he should exercise his right.

I suggest the Government are not entitled to say that here is a Bill on which we are being encouraged by the James Committee to do certain things which will save the Home Office, who pay for criminal legal aid, about £2 million a year to the detriment of those before the courts. We deprive them of legal aid to the extent of £2 million a year; but when we are asked to provide the quid pro quo, which will cost something, then to say there is no public money available. I do not think that they can have it both ways. Any sum which my noble friend mentioned at a time when thefts under £20 were in the Bill must be less than half that now. Thefts under £20 would have accounted for rather more than half the cases. Therefore, it must be less than the amount which the Home Office is going to save on criminal legal aid.

I see that the noble Lord, Lord Wigoder, is in his place now, and perhaps the Committee will allow me to repeat that I have no particular view about what form this Amendment should take. Mine follows exactly the wording of the recommendation of the James Committee. The Committee may prefer Amendment No. 57. What would obviously be convenient would be to discuss the two Amendments together. I beg to move.


If I may make a brief intervention in regard to the previous matter, I have taken instructions and I understand that there are a number of people in prison in respect of non-payment of rent and rates. I will inform the Committee with more particularity later. I did not want the Committee to be misled, as I hope it was not, by my saying that I did not know. But I may have given them a different impression. That is the position.


I asked a question at an earlier stage about the position of people wondering whether to claim trial by jury or not, and that is that one is used to thinking in all the discussions on the footing that the choice obviously would be between a trial by 12 ordinary citizens, or by three or some other number of justices of the peace. Of course so far as the main burden of work is in London, I asked my noble friend whether he would be good enough to find out before the Committee stage of the Bill how far that applies to London, where there are so many stipendiary magistrates. They are essential; we could not possibly get through the work without them; and they do their work to the satisfaction of everybody. But there is still some diffidence if it is not a choice between 12 ordinary citizens or justices of the peace, whom we hope represent all classes of the community and are also lay persons or on the other hand, one lawyer of a different social class from most of those who appear before him. The choice may be a different one. When one is talking of the magistrates' courts in London, I wonder whether my noble friend has been able to ascertain what proportion of cases are tried by the justices and what proportion are tried by stipendiary magistrates.


My noble and learned friend has suggested that we might take Amendment No. 56 together with Amendment No. 57. It seems appropriate to do that, otherwise we are likely to have the same discussion on two occasions.


I am in the greatest possible difficulty, in that I was unfortunately detained elsewhere; I was sitting at the Central Criminal Court and I misjudged my arrival here. As a result, I failed to hear the observations made by the noble and learned Lord, Lord Gardiner, in moving Amendment No. 56. I venture to assume that the Government are in agreement with those of us who are pressing for some amendment along these lines; in principle it is desirable that there should be disclosure to the defence before summary trial in the magistrates' court of the substance of the prosecution case.

I assume the point has been made with considerable force that if some arrangement of that sort can be reached it would serve to cut down the volume of business, first, at the magistrates' courts, because there would be more pleas of guilty if the defence were aware of the strength of the case for the prosecution. Secondly, it would cut down the number of cases in which counsel would feel compelled to advise his client to go for trial before a jury; otherwise he would be in a position of contesting a case with one arm tied behind his back.

Assuming those points have been made—and indeed they were made at a very much earlier stage on an Amendment moved by the noble and learned Lord, Lord Hailsham—the only reason I ventured to table Amendment No. 57 was because I concluded the argument the Government would use in relation to Amendment No. 56 was simply one of" inadequate resources". I think the noble and learned Lord the Lord Chancellor indicated at a much earlier stage that it might cost as much as £4 million for such a proposal to be implemented. I confess I find it very difficult indeed to see how that figure can be reached, if it is simply a matter of photostating copies of statements that in any event have to be copied for use by the court.

I would first ask the Government at this stage whether they would give a rather more critical look at the figure of £4 million, to see whether it can be substantiated. Secondly, I would ask whether, before the next stage of the Bill, they would look at the specific proposal made in Amendment No. 57. The proposal really amounts to this: Instead of the Government committing themselves in this Bill to such a procedure, at once, they should reserve to themselves the power to make appropriate regulations, accepting the principle and implementing it as rapidly as financial circumstances and available resources permit. What I had in mind concerning Amendment No. 57 was that, for example, the Government might introduce a pilot scheme, rather as they did at attendance centres, for a particular area of the country, limited to a particular class of case where there would be no undue strain upon resources of any sort. If that were done for a short period, one could then compare results in that area with the results in other areas, and see whether it had had the beneficial effect that I suspect it would have in increasing the number of uncontested cases and reducing the number of committals for trial. This would allow the Secretary of State, having accepted the principle in Amendment No. 56, to move towards its implementation in stages as rapidly as possible as resources permitted.

3.43 p.m.


I should like to say just a word, although I have already said most of what I wanted to say on my two earlier Amendments. The Committee will realise that I am in sympathy with both these Amendments, or indeed with any Amendment which gives effect to the principle underlying each of them. My own Amendment was a "cheaper" one, because it was limited to those whose rights were being taken away by this Bill. I thought that was a logical limitation, to substitute an added safeguard for those whose rights were being taken away, without dealing with the wider problem. But in fact this has been a grievance for a very long time and it ought to be remedied.

The noble and learned Lord, Lord Gardiner, following the James Committee, has put forward an Amendment which is superior to mine in one respect because, by adding the words "on request" in the second or third line of his Amendment, he has managed to avoid the pitfall into which I fell and which was pointed out to me on the last occasion by the noble Baroness, Lady Wootton, among others; that is to say, a number of potential defendants would rather "get it over" than have the witnesses' statements.

The Amendment of the noble Lord, Lord Wigoder, has the advantage of being more flexible, being dependent on a rule-making power rather than on statutory provisions. That might be a way out. I hope the Government have been thinking seriously about this since we had our last debate. I am sure we shall come back to it again in some form or other on Report stage and, if we do not, I am sure it will be discussed in another place.

I believe the Government ought to give way in some form, and I hope they will. If it would ease their consciences a little on the subject of finance, certainly I should be happy to accept a rule-making power, with a commencement date to be at the Government's discretion, subject to such pressure as both Houses of Parliament may bring to bear on them. I should be disappointed if, either now or on Report stage, the Government did not give some encouragement to those of us who believe in the principle, that within a measurable period of time defendants dealing before a magistrates' court with complicated issues for which they can be sent to prison, and in respect of which a right to trial by jury does not exist, would have the opportunity, if they felt they required it, of knowing what the prosecution case was in time for their legal advisers to obtain proper instructions—because I must tell the noble Lord, Lord Harris, that to fail to do that is a substantial denial of justice and, although it may cost £4 million to do justice in this country, there are still people who believe that such a sum of money might not be an outrageous sum to have to pay.

However, as I explained last time, my colleagues in another place are anxious that I should not get them into trouble with their opposite numbers by demanding increased Government expenditure at this time; so I personally am quite prepared to settle for something with the request provision of the noble and learned Lord, Lord Gardiner, and the rule-making provision of the noble Lord, Lord Wigoder. With that, I trust that the Government will give us some reason for hope. I do not think we ought to divide at this stage, but there may come a time when we have an altogether different frame of mind.

3.47 p.m.


This is an important matter. We began to discuss it on the last sitting of the Committee, in connection with the Amendment of the noble and learned Lord, Lord Hailsham. I then thought it appropriate to indicate what our appraoch would be to the Amendment of my noble and learned friend Lord Gardiner and that of the noble Lord, Lord Wigoder. Let us be quite clear about this. The cost of this proposal of my noble and learned friend, which we have attempted to calculate as accurately as possible, is still £4 million. The Government could not possibly contemplate expenditure of that sort, for reasons which are self-evident and which I dealt with on the last occasion, because of the economic situation with which this country is confronted at the moment.

If I may turn to the terms of the Amendment, there are a number of problems involved in what is proposed. Indeed, they go some way to explain why, in our judgment, the cost would be somewhere in the region of £4 million. The statements would frequently have to be edited to remove material which would be prejudicial to third parties, inadmissible as evidence, or contrary to the interests of justice in relation to offences other than the one charged. Where such statements are required for committal proceedings now, they are examined, the material is deleted, the statements are retyped and the witnesses are asked to sign the revised versions. At present, this needs only to be done in the 50,000 or so cases which are committed for trial. If this had to be done, in addition, for the other 370,000 or so cases triable either way in which, under the Amendment, the accused would ask for the statements (and he would probably be advised to do so in the overwhelming majority of cases) the extra burden which this would put on the prosecution would be considerable and would give rise to the additional expenditure I have outlined.

It is only fair to say that this extra burden would be placed on the prosecuting authorities and also on the police. We are at the moment engaged in telling our police authorities that they have to hold down their civilian manpower. They are allowed to recruit up to existing establishments so far as the police are concerned, but there is a very harsh restriction so far as civilian manpower is concerned. In this area, an Amendment of this kind would clearly bite. In my view, it would be quite impossible for the Government to tell police authorities, at a time when, in many cases, they were being told to trim their civilian manpower. that a new obligation was to be put upon them.

I now come to the Amendment of the noble Lord, Lord Wigoder. I do not know how the noble and learned Lord, Lord Hailsham, will rate my response, but I hope to indicate that we are not hopelessly reactionary, because we understand that there is genuine concern on this matter. I wish to emphasise today that, when resources permit—but only when they permit—we might well come to a different view. The Amendment of the noble Lord, Lord Wigoder, is in a rather different form from that of my noble and learned friend Lord Gardiner, because it would give the Secretary of State a regulation-making power. If the Committee took the view—and on reconsideration, the Government agreed with that view—that it would be better to have a regulation-making power than to deal with this matter by circular, it might be possible to devise a suitable power in a rather different form from the one put down by the noble Lord, Lord Wigoder. The general line would be that the Secretary of State may make regulations for the purpose of providing, in the circumstances and for the classes of case specified, and subject to such exceptions as the regulations may specify, for information to be given by the prosecutor to the defendant or his legal representative, in advance of the trial, as to the evidence which is to be given by the prosecution.

It is only fair to warn your Lordships—and I must do this—that the making and bringing into force of such regulations would have to be deferred for some time. I would not wish to give your Lordships any indication that, in the immediate future, it would be possible to use a regulation-making power of this character. We could not contemplate the expenditure of £4 million at the present time, when one of the most urgent necessities facing this country is to control public expenditure. When we bear in mind the various statements which have been made from all quarters of this House about the urgent need to hold down public expenditure, I I am sure that I do not have to emphasise this too often. Nevertheless, if this is the view of your Lordships, we should certainly be prepared to consider an approach on the general lines which I have indicated. This I think goes some way to show that the Government accept that there is justifiable concern in this matter, which was of course, referred to by the James Committee, and we would be happy to take a more positive view when the economic situation justified it.


Before the noble Lord replies to the debate, which of course he will do, may I press the noble Lord, Lord Harris, one stage further? I realise the fact of life—the facts of life being what they are—that the noble Lord is bound by instructions to observe this expenditure limit; and I also have pressures brought upon me in some ways. But there is a point upon which he could give way—at least, in my opinion—even in advance of the full loaf for which the noble Lord, Lord Wigoder, is asking, and that is this.

When one goes to the magistrates' court with instructions to defend in a small theft case, and instructions, also, that the accused is willing to be dealt with summarily, by appealing, on what is sometimes called an "old boy" basis to the better nature of prosecuting counsel, or solicitors, or policemen or what-have-you, one can very often get information as to what their case is. I believe that the noble Lord, Lord Harris, cannot be right in thinking—if he does think, and perhaps he does not—that, when a prosecution is mounted, the police do not know what it is that they are trying to prove. I should have thought they must do. Even when the case is being conducted by a police officer, it is not infrequent that he knows what questions to ask the witnesses, so he must have some kind of written material.

If the noble Lord cannot promise that in advance of the day of trial this matter should be made available to the defence, and assuming that at a later stage, or now, the Committee is willing to put up with that—I do so reluctantly myself, but I suppose that that is likely to be the case—cannot he, by circular or otherwise, lay it down that, on an old toy basis between defending counsel and prosecuting authority, whatever it is, it is the duty of the prosecution to let the defence know, at least in substance, what case they have to answer? It is absolutely no good being told that you are accused of shoplifting on the night before, and that what you lifted was a pair of tights or something like that. You have to know the kind of case which is being met—that you extracted the article, concealed it behind your person and gave an equivocal or untrue answer when you were challenged, or something different.

I believe that the Home Office ought to be firm about this. This is not simply a question of money; it is a question of justice. It is natural justice that the defendant should know in sufficient detail what he is being accused of doing, for his advisers to be able to elicit the right answers in evidence-in-chief, to know whether to ask leave to call witnesses, and, if so, what kind of witnesses, to controvert the prosecution's case. I ask the noble Lord, Lord Harris, to press his officials—because they need a good deal of pressure—to be a little firmer than hitherto.


I wonder whether I may ask the noble Lord, in his reply to the Committee—and I am very much in favour of what the noble and learned Lord, Lord Hailsham, has said—to say whether he can in any way go along with the suggestion of the noble Lord, Lord Wigoder, that we should have a pilot scheme in some part of the country.


I will certainly consider the latter point. But it would not have any statutory force, because I must make it quite clear that, in the economic situation in which we find ourselves, it is quite impossible to advocate additional expenditure at a time when we are having to cut back on the quality of a very large number of major public services in this country.

The noble and learned Lord, Lord Hailsham, referred to the instructions which I have received, and indeed to the pressures which are brought upon him. It seems to me, quite apart from any instructions that I may have received, that we are all members of a society which is facing a grave, long-term economic crisis. In any debate which this House might be having at the moment, on any one of a number of major subjects—be it education, be it the National Health Service, be it the police, or be it the Prison Service—powerful cases can be deployed for additional public expenditure. On every occasion, someone can rise and say "It is crucially important that an exception should be made in this case". To give way to pressure of that kind would be to condemn this country to a continuance of the economic problems which we have been facing over the last few years, and I, for one—and I am quite sure that I am joined by the overwhelming majority of your Lordships—want to bring this period of grave and continuing national economic difficulty to an end. What that means is resisting Amendments of this kind, which impose new obligations to spend public money.

There is no way in which we can have the best of both worlds in this area. Certainly the noble and learned Lord has asked me, perfectly reasonably, whether I will consider looking at the point and dealing with it by circular. Of course, I will do that, but I must make it quite clear that I could not advocate additional public expenditure, even by circular. Nevertheless, the noble and learned Lord has made a very reasonable point and I will look into it.

At the same time, may I deal with the point, which I regret to say I did not deal with earlier, which was made by my noble and learned friend Lord Gardiner who asked me about the number of cases which are tried in Inner London. As I understand the situation, between three-quarters and four-fifths of Inner London cases, which turn out to be about one-fifth of the total number of cases, are tried by stipendiary magistrates. There are 40 stipendiaries in London and 11 outside. If there is any additional information which my noble and learned friend would like on this point, I will attempt to deal with it by correspondence.


The noble Lord, Lord Harris of Greenwich, did not answer one point which my noble friend raised. That is to say, what is the amount of the saving which might be achieved through people not opting for trial by jury as a result of being given the information provided for in either of these two Amendments? If the noble Lord could give the Committee any information on that point it would be of assistance.


Unhappily it is quite impossible to answer that question. It is impossible to know and to measure with any degree of accuracy whether there would be such a saving. We dealt briefly with the matter during the discussion last week of the Amendment moved by the noble and learned Lord, Lord Hailsham of Saint Marylebone. I should like to be able to make a calculation of this kind, but for obvious reasons, I am afraid that it cannot be done.


Before asking the Committee for leave to withdraw the Amendment, I wonder whether my noble friend could help me by providing some kind of breakdown of the £4 million for which he was asked at the previous hearing? This seems to some of us to be a most extraordinary figure. The prosecution have the statement of the witness's evidence which is going to be given. I should have thought that it would be possible for a copy to be made at the time that the original is made. All that is involved is handing it to the defence, or the defence could come and collect it. On the face of it, it would assist some of us and give us an indication of how this astonishing figure is arrived at.


I will gladly deal with this point by correspondence, although we may well have to come back to it on Report. It would take up too much time for the Committee to listen to a detailed breakdown of this figure. I will correspond with my noble and learned friend.


May I ask my noble and learned friend Lord Gardiner to stand firm on this Amendment, particularly in the light of the remarks which have been addressed to us by the noble and learned Lord, Lord Hailsham of Saint Marylebone. It is quite clear, even to a person like myself who is not skilled in the law, that the position as it is leads to very substantial injustice. The argument which has been addressed to us by my noble friend Lord Harris of Greenwich very rightly puts the argument of extra expense into perspective, albeit without the detail requested by my noble and learned friend Lord Gardiner. However, the question of the necessity for economies in public expenditure, while being universally recognised, does not, I submit, take away from this Committee the responsibility of enunciating its own priorities. To my mind it is quite clear, and I venture to suggest that it is clear to the mind of every noble Lord who is here, that within a free society the question of justice is of paramount importance. I suggest that this Committee is failing in its duty if it does not indicate by its vote that it has a proper sense of priorities. This Committee is not the final arbiter of public expenditure.

A Bill goes from this House to another place, which deals principally with the priorities to be accorded to both cuts in Government expenditure and to the various services provided by the State. If another place sees fit to enforce this further economy, then it will be up to the other place to do so. However, I do not feel that this Bill should go to the other place in the form in which it now is, and I inform my noble and learned friend Lord Gardiner that, if he declines to withdraw his Amendment, I, for one, will support him in the Division Lobbies.

4.8 p.m.


I agree with every word that the noble Lord, Lord Bruce of Donington, has just said. In the case of a previous clause it was said that the abolition of juries would save £4 million. We were trying to consider this question most sincerely. I am a person who believes in the jury system. Any abrogation of the right of trial by jury would affect the general reputation of British justice and the respect in which it is held. On the other hand, I realised then that we were in a dreadful economic situation and that at last the Chancellor was doing his utmost, with some success, to try to rectify it. Every time somebody gets up and says that something is expensive can one say that we must save money? So far as the merits of this Bill are concerned that is irrelevant. The question of the curtailment of expenditure is a matter for the Chancellor.

It is not very easy, when we shall shortly be discussing a Bill which failed to get through last year to assist authors in connection with libraries, to face the fact that as a result of the recent economies Oldham has just closed down five libraries which it prized and valued because it has been told by the Government that it has to cut expenditure. However, that is its responsibility. It is not very easy, when we are speaking about social reform, to face the problem of play groups, about which I happen to know something; to be told that Oldham has cut down a large number of semi-voluntary play groups while another Department of the Government, the manpower group, is imposing play groups on Oldham in order to provide employment and to be able to produce new figures.

We are discussing the Criminal Law Bill and considering its merits. If this Committee says that it believes in certain things, it is for the Chancellor to deal with economic matters and, if necessary, to impose cuts upon us which he makes clear are beneficial and desirable because in his view, having allocated the priorities, he does not feel that effect can be given to those matters which we think are desirable. However, in the case of every Bill which involves expenditure we are going to be told by the Government Front Bench that as part of the system, and for perfectly good reasons, we cannot increase expenditure and, indeed, must reduce it. However, in the case of Bills affecting matters of this kind I happen to believe that justice is of the first importance.

In my view, the argument is not available on its merits that something may be very good but that it is going to cost a certain estimated amount of money. With great respect, the figure of £4 million which the Minister gave a moment ago was precisely the same figure as he mentioned in connection with juries. I doubt very much whether any estimate could be made and I found it difficult to accept as an appropriate figure.

I do not necessarily press the noble and learned Lord, Lord Gardiner, to force the matter now, for two reasons. The first is that it seems to be the general opinion of the Committee that the matter can be discussed at the Report stage, and the second is that the noble and learned Lord, Lord Gardiner, knows ten times as much about these matters as I do and is perfectly capable of taking his own decision without any advice from the less informed. But I think we should make it clear that we cannot discuss every clause of this Bill on a financial basis, and that however much we recognise the gravity of the economic situation—and, God knows! I have been recognising it almost day to day in my own private life for a long time past—it is not relevant in considering the merits of the administration of justice as to what is desirable to protect the innocent, or even the possibly innocent, and we should ensure a fair trial in cases before the courts.


I should like to raise a point which I find extremely important. I did not quite appreciate the way in which the answer was given from the Government Front Bench. Of course one realises that expenditure must be cut and that it is not really any good arguing for a particular expenditure, however good a reason there might be for it. I understand that perfectly, but I think it would have been a bit more helpful if we could have had some discussion on priorities. I read today in one of the newspapers (and I cannot remember now whether it was the Daily Telegraph or The Times) a long description of what is going to happen in regard to the development of main roads. It was given in great detail. I realise that many of these roads are necessary, but I query whether it is a good thing to have such statements in the Press which appear to come from the responsible Government Departments. It is difficult for the ordinary members of the public to understand, some of whom would undoubtedly support what has been said by the noble and learned Lord, Lord Gardiner, and others in this Committee who know about the problems of justice. It would be helpful if a Front Bench spokesman could give some idea of Government priorities. In connection with these major roads the notice in the Press did not say specifically that we should have to wait a long time for them, as I expect we shall—although I hope not too long because I trust that things will return to normal before I leave this life.

4.14 p.m.


Being realistic, I feel that the position is that we shall not get these Amendments passed in the form in which they now appear. A suggestion has been made by my noble and learned friend—and I call him "friend" because I believe we think alike on many points—that the question here is how we can convey to the person who is accused an idea to enable him to decide whether to be tried summarily or whether he desires to be tried by a higher court. I think the suggestion made by the noble and learned Lord, Lord Hailsham of Saint Marylebone, is one to which we ought to get a definite answer from my noble friend Lord Harris of Greenwich. It is not a costly matter. Obviously circulars are sent out fairly frequently by the Home Office in any case and it would only entail adding something to a circular which has gone out. In most cases people who practise in the courts know very well that the prosecution is not loath to answer a solicitor who applies to them for some idea of the evidence that is likely to be adduced. We are not living under a system in which prosecutions, except in very exceptional cases, are carried on in a vindictive way. If one goes to the prosecuting solicitor one can usually find out from him the real essence of the charge that is being laid and it surely could be made clear that such information should be given.

I think my noble friend Lord Harris of Greenwich could agree that an instruction should be given by the Home Office that such information as is reasonably required should be given to those who are conducting the defence. It is difficult to decide until the last moment whether or not a defendant should apply to be tried in a higher court. It would ease the position very considerably, and does in many instances already, if the basic information were available, through his legal representatives, to the defendant who is being tried. This might not entail any expense other than the addition of a few lines to a circular which has already been issued.


I should like to support the noble Lord, Lord Bruce of Donington. I could not agree more with every word he said. We are here discussing the principle that justice should be available to everybody. The fact that it costs £4 million, to my mind, is virtually immaterial, because if you do not get justice in this country £4 million means nothing. To the person who is at what I call the sharp end of this thing justice on the day means everything, and if he does not get it or is not put in a position where he can get it, it will mean that we shall have a number of very embittered people. I feel that is most undesirable.

The noble Lord, Lord Harris, is to communicate with the noble and learned Lord, Lord Gardiner, on the subject of the expense. Every now and then Ministers say: "I will write and set out how this arises". On a matter of principle like this, may we ask the noble Lord, Lord Harris, to make the text available to us all so that we can see what happens?


Yes, if a Question is put down, obviously I will answer it. I should like to deal briefly with some of the points made. The noble Lord, Lord de Clifford, said that the question of £4 million is immaterial—I think that was the term he used. I suppose that is one way of looking at it.


If I may——


Perhaps I could just deal with the point, because I do not want in any way to misrepresent what the noble Lord said. The point he made was that the Amendment was so inherently desirable that £4 million was a fairly cheap price to pay for it; that summarises his argument. But that argument is deployed on issue after issue on every major question of public policy in this country. There are people who say that and who passionately believe it. All I am saying is that the Committee must come to a conclusion as to whether it is prepared to acknowledge the reality of this country's economic situation. There is no point in taking a certain view when it comes to a debate on the economic situation, and then taking a totally different view when it comes to a question of public expenditure of this sort. Four million pounds is not immaterial, whatever it may be expended upon.

My noble friend Lord Hale said that this was a matter for the Chancellor. Well, of course it is; he is the Minister responsible for the economic management of this country. But in a wider sense it is a responsibility of every Member of your Lordships' House. The Chancellor of the Exchequer cannot by himself make decisions of this sort. He requires, and I think in a situation of the kind we are confronting at the moment he deserves, irrespective of which Party he may belong to, the support of both Houses of Parliament. It was only a short time ago that we had negotiations with the representatives of the International Monetary Fund because of the nature of the situation we were facing in this country. Yet within months we are now talking in terms of £4 million being neither here nor there, and that we can agree to spend it.

My noble friend Lord Bruce said that we should establish our priorities. Indeed we should. That is a matter for the Government, and, of course, it is a matter for both Houses of Parliament. But the establishment of priorities means something more disagreeable than that. If one decides to spend £4 million more on something, what is one going to spend £4 million less on? That is the sort of recommendation that those who advocate additional public expenditure at this time in our country's economic affairs have to put before the Committee if their arguments are to be treated with the degree of seriousness which I am sure they deserve.


Would my noble friend forgive me if I intervene on this single point. During more than 20 years in the House of Commons and from time to time in five years in this House, I have put forward suggestions for the saving of several thousand million pounds on armaments, which, in my view, are quite useless, serve no purpose except decorative purposes, provide no protection for the country, and in some respects increase danger by making us a target. In the circumstances, my noble friend can hardly charge me with not having put alternative proposals.


My noble friend is quite right; he has made his position perfectly clear on a number of occasions. It is not a view which I or the Government share, or, as I understand it, one that many other Members of your Lordships' House share. But my noble friend is quite right; he has consistently taken the view that there should be swingeing cuts in defence expenditure. Certainly I would not in any way wish to criticise him for any lack of precision in regard to his own view on this matter.

However, my noble friend interrupted me at just the right moment, because I was about to comment on what he had said. He said that what I had said today on this Amendment was the sort of thing one is going to hear all the time from Ministers. Well, he is absolutely right. He is going to hear it all the time from Ministers, whatever Party may be the Government. If he does not hear it from Ministers the economic crisis of this country is going to get worse and worse. This appears to be a small matter of £4 million. I have indicated that I will gladly do my best to explain the basis on which we come to that view of the amount of money involved. But it is in fact a much larger question. It is whether this Committee is prepared to accept, at a moment of great national economic crisis, that we can afford to provide new and fresh services of the kind set out in this Amendment.

I have done my best to indicate to the Committee that we perfectly recognise the strength of feeling on this matter. I do not know whether this matter was discussed in this House—I was not then a Member of it—during the passage of the 1972 Criminal Justice Act. Perhaps some of those who were here at that time might have felt it was an appropriate moment to put it into effect, when we might have been able to afford it. Certainly we cannot afford it at the moment. I have indicated that I would certainly be prepared to consider, before the Report stage, an Amendment along the lines suggested by the noble Lord, Lord Wigoder, although in rather imprecise form, with no guarantee that we would operate it.

I have also indicated, in reply to the noble and learned Lord, Lord Hailsham, that I would look at his particular point, which was also raised by my noble friend Lord Janner, about a circular. Certainly I will do that, but I do not want in any way to give easy assurances even on that. Certainly I will look at it and consider the matter. But what I cannot do is to oblige a police authority, which at the moment is being told by the Government to trim its civilian staff—the sort of people who would in fact be involved in this sort of operation—to take on new responsibilities as a result of assurances given during the passage of this Bill. Nevertheless, the point has been made, and certainly if there is something that can be done to assist the Committee with regard to this particular matter I will look at it. Obviously, the Government want to be of as much assistance as they can. We recognise the strength of feeling, which is wholly understandable in a matter as important as this. But I have gone as far as any responsible Minister could at a time of serious economic difficulty.

4.30 p.m.


With regard to what my noble friend has said about finance, I should say that I entirely agree with every word he said. Our first priority must be the attack on inflation. That means containing public expenditure, and it is quite wrong for anybody to suggest increases which are against that policy. I strongly support what my noble friend said. However, he may not have appreciated that what may follow is: "We are very sorry, but as a country at present we cannot afford to implement the James Report. We ought to withdraw the Bill". After all, the James Report is a package deal which takes everyone's interests fairly into account. We know it says that the justices are overworked. We are very reluctant to put further burdens on them but we should; but at the same time they should be relieved of their commitment to rates and taxes. I remain extremely sceptical about the £4 million. I should not be surprised if, on examination, it is reduced to £1 million.

One proposal of the Bill would mean saving the Home Office—the Exchequer—£1.5 million to £2 million on legal aid alone. What cannot be quite right as regards a package deal—and my noble friend has not mentioned this—is to say that we will accept all the recommendations of the James Committee which mean a reduction in public expenditure but we reject all those which mean an increase. After all, we start with £1.5 million to £2 million in pocket. If this is a package deal and we accept all the recommendations which mean a saving in public money and we reject all those which mean an increase in expenditure, we may end up with a grave injustice.

I shall say no more at this stage because I prefer the Amendment tabled by the noble Lord, Lord Wigoder. My Amendment takes the form it takes because it is exactly what the James Committee said. I think the noble and learned Lord, Lord Hailsham, indicated that he prefers his Amendment. Convincing reasons have been given and in the light of those reasons I ask the leave of the Committee to withdraw my Amendment.

Amendment, by leave, withdrawn.

Lord WIGODER moved Amendment No. 57: Before Clause 36, insert the following new clause:

Safeguard for defendants in summary trials

. The Secretary of State shall make regulations from time to time to ensure that, so far as is practicable, where an offence is tried summarily, the prosecution shall supply to the defendant before the hearing copies of the statements of the prosecution witnesses.

The noble Lord said: In the light of what has been said this afternoon, particularly the suggested alternative version indicated by the noble Lord, Lord Harris, I should like to consider this matter and table a similar but not necessarily identical Amendment at a later stage. Unless any of your Lordships wish to comment further at this stage, I would beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 36 agreed to.

4.33 p.m.

Lord HAILSHAM of SAINT MARY-LEBONE moved Amendment No. 57A: After Clause 37, insert the following new clause:

Restriction on applications in the Crown Court to amend pleas of guilty in Magistrates' Courts

Where, before a magistrates' court, a defendant has pleaded guilty to, and been convicted of, an offence and thereafter, in respect of that offence:

  1. (a) appeals to the Crown Court against the sentence imposed by a magistrates' court, or
  2. (b) is committed by a magistrates' court to the Crown Court for sentence,
the Crown Court shall not hear any application to allow the said plea of guilty to be changed to one of not guilty unless the requirements of the Crown Court Rules as to notice and inquiries in respect of such applications have been complied with.

The noble and learned Lord said: I should explain that in this and the other Amendments standing in the name of my noble friend Lord Mansfield I am acting the part, in the legal sense, of a devil. Any shortcomings are due to this fact. All these Amendments—and they are on various topics—have been suggested to us by the Magistrates' Association. We support them with different degrees of enthusiasm, but we took the view, after discussing the matter between ourselves, that a body as responsible and so widely respected as the Magistrates' Association ought to have its views aired in this House. It is with this view in mind at this stage of the Bill that I rise to move the present Amendment.

The purpose of the Amendment is as follows. The Magistrates' Association believes that a provision should be included in the Bill so that a guilty plea before the magistrates may be changed only to a plea of "not guilty" after due notice and by leave of the court. I believe that an unequivocal plea requires the leave of the court under existing procedure, but if a case has been sent for sentence to the Crown Court or on appeal is taken to the Crown Court, the Crown Court has been known on occasion to allow a change of plea without communicating with the magistrates who heard the unequivocal plea of guilty in the first place. I believe that this has caused some disquiet to the Magistrates' Association.

Originally it took the view that the matter could be dealt with by a practice direction issued by the Lord Chief Justice. I have quite a long correspondence between the Association and the Lord Chief Justice in my file, but the outcome of it was that the Lord Chief Justice believed that the reported decisions had, perhaps, led to a hardening of the law and that a practice direction would be of doubtful validity. Therefore, the Association suggests, and I now move, that this new clause should be included in the Bill to end what I am told is a growing abuse of legal aid. I beg to move


Neither my right honourable friend the Home Secretary nor my noble and learned friend the Lord Chancellor dispute that the Crown Court should inform itself fully of the circumstances surrounding the making of a plea of guilty at a magistrates' court, where it is alleged to the Crown Court that a change of plea to "not guilty" should be permitted; for instance, because the original plea of guilty was equivocal or made as a result of some possible misunderstanding. But in the Government's view there is no need to provide for this by Statute. All that seems to be needed is for Crown Court judges, in the light of the case law, to remember that they should so inform themselves and that where the information is not already available to the Crown Court, they should adjourn the hearing of the appeal and ask for it.

Although it may not be necessary to make any Rule on this matter, it would seem that if a Rule of Court is necessary, the existing powers in Sections 14 and 15 of the Courts Act 1971 would be wide enough to enable this to be done. If therefore the noble and learned Lord is prepared to withdraw his Amendment—and I take note of the correspondence to which he referred—the Lord Chancellor's Office and the Home Office will pursue, in consultation with the Magistrates' Association, the question of the giving of guidance to the Crown Court on this matter.

4.38 p.m.


I am grateful to the noble Lord, Lord Harris, for that explanation and advice. All of us are, of course, familiar with the fact that a plea of guilty may on its face be unequivocal, but may be due to inadvertence in the magistrates' courts. Indeed, I have heard such pleas while cases have been going on in my hearing. Very often in a theft case an unadvised defendant pleads guilty because he took something which does not belong to him, without realising that it is a complete defence to a charge of theft that he did so under a claim of right made in good faith or with the intention of returning the property to the true owner. Of course in such circumstances if, after advice, he discovers his mistake, he should be allowed to change his plea. However, in a case where, perhaps, he finds that after a plea of guilty he is dealt with rather more severely or finds himself liable to a rather more severe penalty than he supposed, one would exercise a good deal more restraint in allowing a change of plea.

I am grateful to the noble Lord for his remarks. I note that he thinks that the existing powers under the Courts Act give a width of discretion to make Rules if necessary. It may be that after having taken note of this debate the Lord Chief Justice himself may find it possible in the Court of Appeal to remind Crown Court judges of the steps they should take before allowing a change of plea. I am sure that that would be a desirable step. In these circumstances, I ask leave of the Committee to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 37 [Committal for sentence for offences tried summarily]:

The DEPUTY CHAIRMAN of COMMITTEES (Lord Nugent of Guildford)

I see that I have not yet move Clause 37 into the Bill. I therefore do so now before calling the next Amendment.

Clause 37 agreed to.

Lord HAILSHAM of SAINT MARY-LEBONE moved Amendment No. 57B: After Clause 37, insert the following new clause:

Power to remand between magistrates' courts

Where a magistrates' court convicts an offender of an offence punishable by imprisonment or in respect of which that court has a power or duty to disqualify him from driving under section 93 of the Road Traffic Act 1972, it may, if it appears practicable and in the interests of justice so to do, remand him to be sentenced for that offence to any other magistrates' court before which he has been convicted of another offence so punishable or to which the said power or duty applies and is due to appear within twenty-one days to be sentenced in respect of that other offence:

Provided that this power shall only be exercisable with the consent of that other court.

The noble and learned Lord said: The same general remarks that I made at the outset of the last Amendment apply to this one too. In the opinion of the Magistrates' Association there should be power to remand as between magistrates' courts in order to concentrate sentencing in the same hands. The new clause which stands in my noble friend's name is intended to avoid the occasional difficulties which arise when habitual offenders collect convictions from neighbouring courts within a relatively short period of time.

In these cases the Association think it desirable (and I am bound to say that I, at first sight, agree with them) that so far as possible sentencing should be concentrated in the hands of one court, which can take into account the series of events. It will be seen from the text of the proposed new clause that it provides: Where a magistrates' court convicts an offender of an offence punishable by imprisonment or in respect of which that court has a power or duty to disqualify him from driving under section 93 of the Road Traffic Act 1972, it may, if it appears practicable and in the interests of justice so to do, remand him to be sentenced for that offence to any other magistrates' court before which he has been convicted of another offence so punishable or to which the said power or duty applies and is due to appear within twenty-one days to be sentenced in respect of that other offence: Of course there is a proviso that the power should be exercised only with the consent of the other court. It seems a reasonable Amendment. I beg to move.


It is indeed a perfectly reasonable Amendment, and I want to indicate at the outset that we have no objection in principle to what the new clause is designed to achieve. There are, however, a number of points of detail which will have to be explored, such as how the provision can be drafted so as to give the justices jurisdiction to deal with offences tried by a magistrates' court from a different commission of the peace area. If the noble and learned Lord would agree to withdraw his Amendment on the understanding that the Government will examine this proposal on the basis I have indicated, we shall do our best to put down a Government Amendment at a later stage.


Might I sound one note of caution about this Amendment. If it were carried into force, it would mean that justices would be passing sentence on a defendant in a case which they had never heard. It is something that is extremely difficult to do at times. If that were the more important of the two offences with which the court were asked to deal, it is asking a great deal of any tribunal to deal accurately and sympathetically with a case of substance, which may have been a long-contested case, when they know nothing more about it thin a brief summary of the facts from somebody appearing before the court. It may perhaps be thought desirable as a safeguard that when the new clause, if there is to be a new clause of this nature, is finally drafted it may include some indication that this course should be taken only if the defendant consents to it being adopted.


I must confess that I am not entirely happy about this provision, and I hope that the noble Lord, Lord Harris, will look at it a little more critically. I do not like the idea of one bench of magistrates considering the appropriate sentence to pass upon a man who pleaded "not guilty" before another bench of magistrates, and on evidence which the bench of magistrates sentencing has never heard.


No doubt the noble Lord, Lord Harris, will take into account what the noble and learned Viscount and the noble Lord, Lord Wigoder, have said. Of course it is not altogether uncommon in another jurisdiction for a magistrates' court to remand for sentence before another court which has not heard the evidence available on conviction. Although the technicalities are different, the common case where a number of similar offences are taken into consideration involves practically the same series of consideration. However, on the satisfactory assurance given by the noble Lord, Lord Harris, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.46 p.m.

Lord AVEBURY moved Amendment No. 58: Before Clause 38, insert the following new clause:

Amendment of Street Offences Act 1959

. In section 1(2) of the Street Offences Act 1959 (penalties for loitering or soliciting for purposes of prostitution) for the words from "not exceeding" where they first occur to the end of the subsection, there shall be substituted the words "£50".

The noble Lord said: I beg to move Amendment No. 58 standing in my name. This Amendment seeks to abolish the offence of imprisonment of a common prostitute for the offence of loitering or soliciting in a street or public place for the purposes of prostitution. This offence, and the powers of the courts to deal with it, stem from the report of the Wolfenden Committee 20 years ago. They said in making this recommendation that they had in mind both the deterrent effects of convictions and sentencing for the offence, including imprisonment of persistent offenders, and also the use of imprisonment as a means of inducing a woman to accept probation.

The law on this matter has been reviewed by a Home Office Working Party on vagrancy and street offences which reported on 8th September last after no less than five years' deliberation. They considered soliciting and loitering and their findings have, I understand, been accepted by the Government in principle, and the Government have undertaken to introduce legislation on the matter when Parliament can find time—although it has taken this initiative of accepting the recommendations without waiting to hear whether Parliament has anything to say on the matter itself.

The Working Party wanted to repeal what the Home Office called in its Press statement on the report: The archaic vagrancy laws with their division of offenders into idle and disorderly persons, rogues and vagabonds, and incorrigible rogues. But they at the same time advocated retention of a law which brands a woman as a common prostitute, and they want to increase the fines which a court may impose on such a woman for loitering or soliciting and retain the penalty of imprisonment as a last resort. They do make the daringly radical proposal that Section 3 of the Vagrancy Act 1824 and Section 3 of the Universities' Act 1825 should be repealed, so that your Lordships will no doubt be pleased to hear that it will no longer be an offence for a prostitute to behave in a riotous or indecent manner in a street, or to be found wandering in any public walk or highway within the precincts of the University of Oxford without giving a satisfactory account of herself. However, that is as far as the Working Party felt themselves able to go.

As the Howard League for Penal Reform has pointed out the composition of this Working Party was hardly calculated to produce a balanced and effective policy on the social problems of vagrancy and street offences. Out of the 12 members of the Committee six were officials of the Home Office, four were senior police officers, one was from the office of the Director of Public Prosecutions, and one from the DHSS. The Working Party included the usual statutory woman, who was also one of the Home Office officials.

Since I shall be citing the Howard League for Penal Reform in support of this Amendment, perhaps I could contrast this with the composition of their Committee which looked at the cautioning and imprisonment of prostitutes. The chairman of their Committee was the chairman of the board of visitors of Holloway. The Committee included the former chief welfare officer of the Ministry of Health and Chairman of the Committee of Inquiry into voluntary workers in social services; Mrs.Bligh-Scrutton, late of the Josephine Butler Society; a probation officer and former welfare officer of Holloway prison; the chairman of the Albany Trust; two barristers, and the director of the Howard League itself, a committee which your Lordships might think is slightly more balanced and more wide in its experience than that which had been set up by the Home Office.

Let us see how Section I of the Street Offences Act works in practice. To come within the definition of a common prostitute, a woman must have been cautioned by a police officer on two previous occasions for loitering or soliciting, and if she is then charged with the offence under Section I and pleads not guilty, the officer reads out the so-called evidence of the caution before any offence is proved. That is obviously very much more damaging to the accused person than a conviction, which of course cannot be recited until after the court has reached its verdict. I am also informed that many women are unaware that under Section 2(1) of the Act they have a right of appeal against the caution, and one should note that the system of cautioning lends itself to abuse in that a currupt police officer might use it as a means of extorting money from prostitutes. I believe that that has been found to take place in the past, although one hopes that in recent years, under Sir Robert Mark, the practice has been stamped out. At any rate, it is a theoretical possibility that one should bear in mind.

It is only after two cautions and then two convictions which have been punishable by fines that a woman can be sent to prison for loitering or soliciting; she must have been caught by a police officer no less than five times, which means that in her case these penalties have not acted as a deterrent. The Working Party says that to remove the sanction …would have a negligible effect on the prison population while risking a tangible increase in the number on the streets". That was not the view of the late Lord Justice James, who was the architect of that part of the Bill which we were just considering. He said in the Riddell Lecture of 1974 that if the offence of soliciting were abolished— …there would be a substantial reduction in the population of Holloway Prison". As the noble Lord, Lord Harris of Greenwich, may know, I put down a Question on this matter in August 1975 which was answered by the noble Lord, Lord Wells-Pestell, who told me that women convicted of soliciting in 1973 represented 8.4 per cent of all admissions to women's prisons and, in 1974, the figure was 6.2 per cent—your Lordships will agree by no means a negligible proportion of the total, and that of course is without counting the additional one-third of all women who go to prison as a result of soliciting for default in payment of a fine. One might have thought that a Working Party which was as dominated by the Home Office as the one I have described would have given proper weight to arguments concerning a reduction of the prison population and would have presented some calculation of the potential savings in the Report.

In the same Answer which was given to me by Lord Wells-Pestell, he said that the average cost of keeping one woman in prison in 1973–1974 was £2,773 per annum, and I think it would be reasonable to assume, with inflation since that date, that it must be about £5,000 today, so by my calculation, if the average length of sentence has remained the same since then, every time a court sends a woman to prison for loitering or soliciting it costs the taxpayer £1,140. That is surely a very high price to pay for keeping that woman out of circulation for 12 weeks and is inconsistent with Government policy, to which such great emphasis was given by Lord Harris, of cutting public spending. I was very encouraged when I heard him say that always, whatever the area we are discussing—be it in the Prison Service, he said—a powerful case may be made for exceptions.

In this Amendment I am not making a powerful case for exceptions. I am offering the noble Lord an opportunity to cut public spending and to cut the prison population. I hope that I shall also have the support of the noble and learned Lord, Lord Hailsham of Saint Marylebone, in this matter because he said on the same issue that his colleagues in another place were anxious that he should not get them into trouble by advocating increases in public spending. Here is an opportunity for the noble and learned Lord to mend his ways by supporting this considerable reduction in public spending on the Prison Service.

Does the threat of imprisonment actually keep women off the streets? I suggest that things have changed since 1957 and that competent and attractive prostitutes have become more efficient and have more convenient ways of getting their clients than soliciting, and I do not think they are likely to return to the discomfort of standing on cold and windy street corners even if Section 1 were repealed altogether. As Mr. Leo Abse pointed out in his Note of Dissent to the Report of the Younger Committee on Young Adult Offenders, what has happened as a result of the Street Offences Act is that a class of middle men has come into existence—escort agencies, landlords, taxi drivers, hotels and porters—who assist in creating contacts between prostitutes and their clients so that the only ones still left on the streets are the least successful prostitutes, sometimes, he says, women with a history of mental breakdown, attempted suicide, alcoholism and drug dependency and often in addition suffering from physical handicaps.

I might add that I have checked his description with both magistrates and very senior officials of the Prison Service and I find that they agree with that and it seems obvious that these women are not likely to be deterred by either fines or imprisonment. Thus, as the Home Office Research Unit Bulletin on Women Offenders said in July 1974: It is quite widely acknowledged that prison is inappropriate for prostitutes. The women involved tend to regard it as a calculated risk of their profession. It can have slight rehabilitative value, even if it affords temporary respite from an exacting life.

As to the concept in the Wolfenden Report of using powers of imprisonment to make offenders more willing to accept probation, the Working Party Report of the Home Office does not mention that at all but confines itself to what it calls "maintaining the status quo in the streets." But the Howard League says that this idea …is totally alien to all current thinking and practice and must be rejected absolutely. Preventive work, they say, is very necessary indeed, but it— …demands the patient construction of personal relationships between social worker and client"— a process which, I suggest, is exactly the opposite to the use of the threat of imprisonment as an inducement to a woman to accept welfare.

Finally, I would point out that we are here talking about a blatantly sexist piece of legislation. If a man persistently importunes women in the streets for the purposes of sexual intercourse, he can be got at, if at all, only by taking the sledgehammer of Section 5 of the Public Order Act 1936, which deals with threatening, abusive or insulting words or behaviour in a public place, or by the very indirect means available to the courts such as the road traffic legislation. The Home Office Working Party recognise that such a difference of treatment of men and women under the criminal law is intolerable and they propose to create a new offence of accosting by men. I suggest that this is entirely contrary to the tendency of recent years, which is to reduce so far as possible the catalogue of offences which are subject to imprisonment, as, for example, Parliament has done in cases of driving a motor vehicle without insurance. But this offence which it is proposed by the Working Party should be created is not exactly the same as that for women under the Street Offences Act because one of the ingredients of the proposed offence is that it should be likely to cause annoyance to the public such as residents and users of the street in which the accosting takes place, whereas a woman can be sent to prison for soliciting on the sole evidence of the police officer.


A noble Lord: For the second time!


For the second time round. This is the last point I shall make. Since the Government have committed themselves to legislation on vagrancy and street offences, why not take the opportunity of making the change now and using the next year or even two years which may elapse before the introduction of the promised legislation for an experiment? If we abolish imprisonment for soliciting now and there is not—as I suspect there would not be—a perceptible increase in the nuisance or, at any rate, not to the extent that public opinion finds it intolerable, we can do without this penalty permanently and avoid altogether creating this new offence of accosting by men. If on the other hand the nuisance did become far more severe, contrary to my expectations, Parliament would have the opportunity of implementing the Working Party's recommendations in full and would do so with the strengthened hand that would come from having first tried the alternative solution that so many expert witnesses prefer. I beg to move.


I should like to support the Amendment proposed by the noble Lord, Lord Avebury, more particularly as I believe that no possible good can be done by sending prostitutes to prison. It may be that the change would not make a substantial reduction in the prison population because the number of prostitutes might form 8 or 9 per cent. of the admissions, but they usually receive a short sentence and therefore do not add very much to the daily population. Nevertheless, a short sentence for a prostitute has absolutely no effect either way. I have heard of cases where a sentence of community service has been imposed on a prostitute. This may sound a little odd, but I think that it has great possibilities if a wise choice of the type of service is made. Instead of doing something that is quite obviously totally unconstructive, such as sending a prostitute to spend a fortnight or so in prison, the courts might use a little ingenuity in thinking out forms of community service that might enlist human interest and turn a prostitute to consider other ways of life. I should like very strongly to support the Amendment proposed by the noble Lord.


On the point made by my noble friend Lady Wootton, she will of course recall—and I hardly have to say this, given her own responsibility for the introduction of community service—that community service was seen as an alternative to imprisonment. I shall come back to the way in which people convicted of this offence should be treated, but it is only fair to say that I cannot this afternoon tell my noble friend how many prostitutes have been sentenced to community service. It may well be that a number have been, but I repeat that it is an alternative to imprisonment and it is on that basis that it has been supported by Governments of both Parties.

Before coming to the noble Lord's Amendment, I should like to say one thing. The noble Lord moved the Amendment in reasonable terms, but he slightly misquoted me—inadvertently, I am sure—about what I said about expenditure so far as the prisons were concerned. What I was endeavouring to say to the Committee on an early Amendment was that, in my view, there could be no case for special treatment of anybody and that that, unhappily, included the Prison Service.

The Amendment seeks to introduce a single maximum line for each conviction of loitering or soliciting for the purpose of prostitution in place of the present system which, as the House will recall, is based on progressively higher penalties. It is our view that the House should not accept this proposal. As the noble Lord indicated, progressively higher penalties were introduced following the report of the Wolfenden Committee on Homosexual Offences and Prostitution in 1957. It considered that repeated fines of the same amount, even if substantial, had proved futile as a deterrent in the past and would continue to do so. This view was endorsed by the recent Working Party on Vagrancy and Street Offences which noted that the substantially higher fine available on second or subsequent offences was useful as a deterrent and should be retained.

The Wolfenden Committee was also concerned that fines alone were inadequate for dealing with persistent offences, since they could be passed on to the customer. The Committee therefore recommended that a short term of imprisonment should be available on a third or subsequent conviction. The Working Party whose recommendations on this question the Government have, as we indicated last September, accepted in principle endorsed the Wolfenden Committee's view, and the noble Lord, Lord Avebury, alluded to this in his speech.

When we have the views of a Working Party which has gone into these matters very carefully and over a period of time and consulted widely, I do not believe that we should lightly depart from its recommendations. I think it right to remind ourselves of what the Working Party said in its report, and I should like to quote the appropriate passages. It said: We have no strong feelings on the amount of fines. A maximum of £100 for a first offence as has been suggested to us is not a large sum though street prostitutes are generally the least successful in their profession. On balance we feel that the amounts should be as we have suggested. Imprisonment, we feel regretfully, is a necessary final sanction. Fines easily become just a tax on prostitution, as did the £2 maximum in London before 1959. The amount of time spent in prison by prostitutes is not significant as a proportion of prisoner days and to remove the sanction would have a negligible effect on the prison population while risking a tangible increase in numbers on the streets. Keeping the unusual three-fold progression to imprisonment is, in our view, still justifiable as an attempt to warn off the younger beginner before she finds herself in prison, though it must be admitted that its effectiveness is limited and that combined with the protection of the cautioning system, it allows the prostitute four encounters with the law—that is two cautions and two convictions—before she runs the risk of being imprisoned". On the basis of that, I feel that it would not be right to depart from the principles that were accepted by the Wolfenden Committee and which have so recently been endorsed by the Working Party.

In Schedule 6 to the Bill, it is proposed that the maximum penalties for soliciting should be increased to £50 for a first offence, and the noble Lord's Amendment would keep it at £50. However, this is where the Government diverge from the terms of the Amendment. We say that the penalties should be up to a maximum of £200 for a second or subsequent offence. A maximum of three months' imprisonment will remain available upon third or subsequent conviction. I believe that these penalties are at an appropriate level and I hope that the noble Lord will not press his Amendment.


I rise to support what the noble Lord, Lord Harris, has said. I could not agree more with the noble Baroness, Lady Wootton, in the words that she used when she said that it was no good sending prostitutes to prison. I do not think it is, but that is not what the law does. This is not a question of punishing prostitues for prostitution—happily we in this country are not so hypocritical as to make prostitution per se an offence, and, in my judgment, it should not be an offence. One may have one view or another about it. One may believe that remedial treatment or preventive welfare treatment is a desirable thing, but I do not believe that the criminal law has any very useful part to play in putting an end to prostitution. On the contrary, I believe, slightly modifying the words of the Roman historian Tacitus, that this form of activity will constantly, so long as history exists, fall foul of the law in one way or another but will never be abolished. To use a cliché it is, as we all know, the oldest profession in the world.

The question is not what one should do with prostitutes to stop them from being prostitutes, but how prostitutes should be allowed to behave in the streets. The Wolfenden Committee reported in 1959, at a stage when the degree and activity of prostitution, particularly in West London, had reached a totally intolerable extent. The conclusion they arrived at was that physical penalty for that form of solicitation (that is to say, street solicitation) was necessary in order to put an end to that. The report was enacted I think during the time when Mr. Butler was Home Secretary, and he, I say in passing, was not the least liberal of Home Secretaries of this century, and within a matter of weeks the whole face of the streets of London and the West End—and I can speak from personal knowledge—had altered for the better.

It was always said at that time that one would only drive them off the streets to somewhere else, but that was the whole object of the exercise. They are better somewhere else, off the streets, both in their own interests and in terms of the convenience of using the streets. I must say in passing that I myself think that a great deal more weight ought to be given to the argument which was deployed by the noble Lord, Lord Harris of Greenwich, than is normally given. If, after deliberation—and there was plenty of deliberation here—Parliament decides upon an alteration in the law, it is better that it should then be allowed to remain un-altered for quite a substantial time after the reform has been carried out. If one is constantly fiddling with the law, in either one direction or another, one loses all respect for the legal situation.

The noble Lord, Lord Avebury, talked about the possibility of police corruption and the possibility of various hangers on to the prostitutes' trade who are never desirable and are sometimes criminal in other ways, either by way of violence or by way of blackmail. I can only say this, and this is again a matter of experience. Before the war when prostitution—I am talking about street walking—had not anything like reached the degree of frequency and violence that it had done by 1957 or when the Wolfenden Committee was set up, the prostitute very often had a protector hanging around the corner. There was very frequent violence, and I am sorry to say—I believe it to be true and I cannot prove it, but sometimes one has to say things which one believes to be true but cannot prove—that the police quite frequently took: regular payments from prostitutes for not being interfered with. When they went to court they went to court in a more or less regular rota and as the Wolfenden Committee reported, they treated this as an on cost of their trade and passed it on in due course to the customer.

As for the sufficiency of the £50 fine, I should like to give this personal reminiscence which gives your Lordships some idea of the kind of money which was made in, say, 1938 or so, by people carrying on street walking. I can remember defending a prostitute and her ponce somewhere about 1937 or 1938. They were accused of attempting to bribe the police on this occasion and that was how in the end they came to me. He was accused of living on her immoral earnings which at that time, as it was a second offence, rendered him liable to a theoretical possibility of corporal punishment. The economic facts about that particular business were that she worked solely during the hours of daytime, that is to say, from nine to six, ordinary office hours. She operated in Wardour Street and during that time she made enough money from passers by to keep herself in the professional flat, a maid in the professional flat, a separate residential fiat in Maida Vale, where she lived with her ponce and her small child, and she sent her little boy in due course to a very good school.

The idea that purely a £50 fine, administered at regular intervals, would stop that kind of activity is a little naive. I have said, and I say again, that I do not believe that the criminal law will in fact play any part at all in bringing prostitution to an end. It is a permanent feature of human society, much as one may regret it. Nor have I the smallest desire to persecute prostitutes as such, male or female, for the sake of the fact that they carry on this unfortunate trade. But the way they behave can amount to a public nuisance and to the extent that it does it has to be dealt with by criminal sanctions. My own belief is that this criminal sanction has proved its worth, as a result of the enactment of the Wolfenden Committee Report, and I should be very sorry to see it lost.


My noble friend is quite right; community service can be ordered only for what is known as an imprisonable offence. This point has come up previously in Committee in relation to some road traffic offences. But I should point out that we are getting into a rather ridiculous situation if we are now trying to keep prison as a penalty for offences in order that we should be in a position not to use it but to substitute something else, and a consequential Amendment elsewhere would take this difficulty away.

5.18 p.m.


I should like to say to the noble Baroness, Lady Wootton of Abinger, that the average length of sentence for soliciting or loitering is much longer than a fortnight. In fact, in the same Answer to which I have already referred, the noble Lord, Lord Wells-Pestell, gave the figures of 63 days in 1973 and 82 days in 1974. I am sorry that I have not more recent figures, but I should assume that it is unlikely that sentences of shorter duration are being passed since then.

I am sorry that I altered the fines that were already provided for in the Bill as it stood, and I think that this has been a bit of a red herring. If I can persuade the noble Lord, Lord Harris of Greenwich, and the noble and learned Lord, Lord Hailsham of Saint Marylebone, to go along with the abolition of imprisonment, I should perfectly readily put back the fines as they already stood, if they considered that that is the way to keep people off the streets, to fine them £200 instead of £50. But I suggest that looking at it in the way that they have done, they have forgotten the point that I tried to underline, that the ones who are now on the streets are not the ones who can afford these very large sums of money, such as the client of the noble and learned Lord before the war. Those people have already disappeared off the streets and are operating from expensive flats in Mayfair or Hampstead, and they do not need to solicit or to loiter in order to get their customers.

The ones who are left, as every authority which has looked at the subject has declared, are the most inadequate and therefore the least likely to be able to pay the increased fines that are provided for in the Bill. If it would make the Minister happy, then I would be prepared to call it £200. And, of course, he ignored the other point, which is that one-third of the number of women who go to prison under the Act we are discussing do so because they are unable to pay their fines in the first place. Therefore, if you are going to put the fines up to £200 it will simply increase the proportion of these women who default in the payment of their fines and are committed to prison as a result. If that is what Parliament wants to do, I should be very surprised indeed. I thought it was contrary to the whole thinking of the times that we should put people in prison for the non-payment of fines.

The Minister rests heavily on the views of the Working Party, and there is no difference between us as to what the Working Party said on the subject. What I should like to underline is that, although the Working Party has been in operation for, as I said, five years and it published a discussion paper in 1974 which solicited the views of experts in this field, looking through its final report one sees that there is no departure whatsoever from the recommendations which were made two years ago; we have not moved on since then. Yet there is this caucus of other views which it could have taken into account, and the Howard League is only one of the ones I could have cited. I am sorry the noble Lord did not think it worth even mentioning that there are people who take the view that it is a retrograde step to introduce a new offence for men, so multiplying the number of offences which are subject to imprisonment—contrary, as I said, to the idea of recent times, when we have been abolishing more and more of the offences which are subject to imprisonment in the hope that we are somehow going to be able to keep down the prison population.

Lastly, on the question that the noble and learned Lord, Lord Hailsham, mentioned, he said that we are not trying to impose any kind of morality on people and that we shall never stop prostitution; what we are doing is to legislate on how they should behave in the streets. I rather take the view that the noble and learned Lord, Lord Simon of Glaisdale, I think it was, mentioned the other day when we were talking about legislation on morality: that of the actor Kemble, who said at the time of the Oscar Wilde trial that a man should be allowed to do anything he likes in the streets as long as he does not frighten the horses. After deliberation, as the noble and learned Lord, Lord Hailsham, said, Parliament decided on certain changes in the law 20 years ago.

It is time we reviewed whether they were right in making those changes and whether now, in the light of more modern conditions, by abolishing imprisonment for this offence we should not maintain the status quo on the streets, if that is what is wanted, to use the Home Office phrase. I think it would be a very great shame if we missed the opportunity we have in this Bill to see what would happen after the abolition of imprisonment, if necessary going back, as I say, to the status quo when the Government introduce the legislation on vagrancy and street offences which they have promised. Therefore, I hope the Committee will not let this opportunity pass; and, in order to test the feeling of your Lordships' Committee, I should like to press this matter to a Division.

5.24 p.m.

On Question, Whether the said Amendment (No. 58) shall be agreed to?

Their Lordships divided: Contents, 39; Not-Contents, 100.

Airedale, L. Granville of Eye, L. Phillips, B.
Avebury, L. [Teller.] Gregson, L. Ritchie-Calder, L.
Banks, L. Grey, E. Ruthven of Freeland, Ly.
Brockway, L. Hale, L. St. Davids, V.
Bruce of Donington, L. Houghton of Sowerby, L. Shepherd, L.
Byers, L. Kagan, L. Taylor of Gryfe, L.
Caradon, L. Kilbracken, L. Vaizey, L.
Castle, L. Kimberley, E. Wade, L.
Fisher of Rednal, B. Maelor, L. Wells-Pestell, L.
Foot, L. [Teller.] Meston, L. Wigoder, L.
Gaitskell, B. Noel-Buxton, L. Willis, L.
Gladwyn, L. Northfield, L. Wootton of Abinger, B.
Goronwy-Roberts, L. Ogmore, L. Wynne-Jones, L.
Allerton, L. Hailsham of Saint Marylebone, L. Parry, L.
Ardwick, L. Peart, L. (L. Privy Seal.)
Aylestone, L. Halsbury, E. Ponsonby of Shulbrede, L.
Bacon, B. Hanworth, V. Popplewell, L.
Belstead, L. Harris of Greenwich, L. Porritt, L.
Berkeley, B. Harvington, L. Redesdale, L.
Birdwood, L. Hawke, L. Rhodes, L.
Burntwood, L. Henderson, L. Rusholme, L.
Cathcart, E. Home of the Hirsel, L. St. Aldwyn, E.
Champion, L. Hornsby-Smith, B. Saint Oswald, L.
Chesham, L. Hylton-Foster, B. Salmon, L.
Clifford of Chudleigh, L. Inglewood, L. Sandys, L.
Clitheroe, L. Jacques, L. Segal, L.
Coleraine, L. Killearn, L. Sempill, Ly.
Crook, L. Kilmany, L. Slater, L.
Daventry, V. Leatherland, L. Somers, L.
Davies of Leek, L. Lee of Asheridge, B. Stedman, B. [Teller.]
de Clifford, L. Lee of Newton, L. Stewart of Alvechurch, B.
Denham, L. Llewelyn-Davies of Hastoe, B. Stone, L.
Dilhorne, V. Lloyd of Hampstead, L. Strabolgi, L.
Douglas of Barloch, L. Long, V. Strathcona and Mount Royal, L.
Drumalbyn, L. Lovell-Davis, L. Strathspey,L.
Elles, B. Lyell, L. Tenby, V.
Elliot of Harwood, B. McCluskey, L. Vivian, L.
Elwyn-Jones, L. (L. Chancellor.) Mais, L. Wallace of Coslany, L.
Evans of Hungershall, L. Mancroft, L. Walston, L.
Falkland, V. Merrivale, L. Ward of North Tyneside, B.
Ferrers, E. Morris of Borth-y-Gest, L. Westbury, L.
Fraser of Kilmorack, L. Mowbray and Stourton, L. White, B.
Gainford, L. Murray of Gravesend, L. Wigg, L.
Geoffrey-Lloyd, L. Northchurch, B. Wilson of Radcliffe, L.
Gordon-Walker, L. Oram, L. Winterbottom, L. [Teller.]
Greenwood of Rossendale, L. Paget of Northampton, L. Young, B.
Gridley, L. Pargiter, L.

Resolved in the negative, and Amendment disagreed to accordingly.

Clause 38 [Amendment of Rabies Act 1974 and Diseases of Animals (N.I.) Order 1975):

5.33 p.m.

On Question, Whether Clause 38 shall stand part of the Bill?


I should like to address the Committee briefly in order to ask the noble Lord in charge of this Bill two small points. We welcome this clause whole-heartedly—it is one with which nobody could disagree—but one of the noble Lord's right honourable friends, Dr. Gavin Strang, said in Edinburgh the other day that they were considering extending it. Provision is made in the Bill as at present drafted for powers of entry into ships, planes and boats, and apparently those powers may be extended to include even homes, which are not covered in the Bill. Also he said that another suggestion had been made which would give the authorities power to destroy animals illegally imported. I believe that this power already exists. Might I ask whether it is going to be made compulsory?


I will look into that point. I saw a Press report of my honourable friend's speech but I did not give it the degree of care that the noble Lord has given it. I will look into it and write to him.

Clause 38 agreed to.

Clause 39 [Coroners' inquests]:

Lord HARRIS of GREENWICH moved Amendment No. 59:

Page 31, line 30, at end insert— ("(4) The City of London Fire Inquests Act 1888 (which makes provision as to the functions and proceedings of the coroner for the City of London with regard to inquests upon fires within the City) shall cease to have effect.")

The noble Lord said: This Amendment repeals a local Act which permits the coroner for the City of London to hold an inquest into the cause of a fire in the City and to initiate proceedings against a person for arson. The Act is an anomaly since coroners generally have ceased to hold fire inquests since the passing of the Coroners Act 1887.

On Question, Amendment agreed to.

On Question, Whether Clause 39, as amended, shall stand part of the Bill?


Before this clause passes, might I say how much I personally welcome it? As your Lordships may remember, it was as a result of an act by a coroner's jury, which was not in favour of the coroner, that I was arraigned before your Lordships' House. It had extremely good results, I might say. In fact, it removed ultimately the right of any of your Lordships to be tried by this House. I trust that there are no more constitutional matters which might need attending to; but I personally would like to give a wholehearted welcome to this clause.


I welcome the noble Lord's welcome to this clause and rejoice with him at the outcome of the proceedings.

Clause 39, as amended, agreed to.

5.38 p.m.

Lord MORRIS of BORTH-Y-GEST moved Amendment No. 60: After Clause 39 insert the following new clause:

Repeal of s. 3 of Criminal Justice Act 1961c. 39.

. Section 3 of the Criminal Justice Act 1961 (elimination of intermediate and short prison sentences) is hereby repealed.

The noble and learned Lord said: In asking leave to move this Amendment I think that I may safely assume that, if your Lordships are disposed to accept it, it is one that comes well within the Long Title of the Bill. Among the many purposes of the Bill now before us is the purpose of amending the law relating to the proceedings and powers of criminal courts, including the law as to the penalties which they can impose". Other words in the Long Title are: to make…provision with respect to the methods of dealing with offenders,". I do not suppose that it will be contested that the matters I raise by this Amendment are matters that are very germane to the purpose of a Bill dealing comprehensively with the criminal law and with the penalties that may be imposed.

Your Lordships will recall the general provisions of Section 3 of the Criminal Justice Act 1961. The first subsection of that Act is in these terms: 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—

  1. (a) for a term not exceeding six months; or
  2. (b) (where the court has power to pass such a sentence) for a term of not less than three years."
May I remind your Lordships that subsection (3) of the section has the effect that in the case of someone who has served a previous sentence of imprisonment for a term of not less than six months or a previous sentence of borstal training, then for the period of three years is substituted the period of 18 months.

I shall submit to the Committee that here is a supreme and welcome opportunity to get lid of a section which, as I suggest, in practice has given rise to many and great difficulties and a section which, in essence and in philosophy, is one that is wholly undesirable. Of course everyone supports a principle and an idea that lay very much as the basis of this section to which I have referred; namely, that i so far as possible young people should be kept out of prison, and also that if a young person had to have a custodial sentence and if he was eligible for borstal training—that is to say, came within the age limits making it permissible—then borstal training was to be preferred to a sentence of imprisonment.

How does it work out? Supposing the moment comes when a judge has to determine what is the appropriate penalty to impose on someone. The judge must consider the offence; he must consider all the circumstances surrounding it, and then he must consider all the circumstances affecting the person who is before him. I am sure that I can say on behalf of every judge that, if possible, there is a wish and desire in the mind of a judge that he will not deprive somebody of his liberty unless he feels that it is essential. Supposing the judge, having someone before him, considers the offence, and considers the age of the offender. Supposing the offender is somebody aged 19 and that the judge considers all the circumstances affecting that individual, whose fate is in the hands of the judge. The judge has the duty to apply himself faithfully to consider what is the right thing to do.

First the judge would have to consider: "Is this a case where I must deprive this young person of his liberty for a period?" Supposing the judge says, "Yes, I must." He then has to consider whether it would be right to send the 19 year old offender for a period of borstal training. Supposing the judge considers that most carefully and says, "No, having regard to what has happened before, having regard to all the circumstances affecting this young man, that would not be right" Then, supposing the judge, having a wealth of experience upon which to form his decision and base his judgment, and approaching the matter with the desire to be wise in the interests of the community and to the greatest extent possible lenient in the interests of the person before him, says: "The sentence that is right is one of 21 months".

Supposing he passes that sentence. What then happens? The judge is at once reminded, "You cannot do it; it is against the law to do it". It is a very strange law. If the judge having, with all his experience, considered every aspect of the matter, says the right sentence is 21 months, is it fitting that he should be told by Parliament, "You cannot do it; you must not do it. You must pass a sentence of either less than six months or more than three years." Supposing the judge says, "Less than six months would be inadequate but more than three years would be wrong"? Is it right that we should have a provision of this kind still on the Statute Book?

My noble friend Lord Harris of Greenwich has been good enough to write to me regarding this matter; and perhaps I may be allowed to say that in every point I have raised regarding this Bill, or any previous Bills with which the noble Lord has been concerned, he has gone out of his way to be courteous and helpful. On this occasion, as on others, he wrote to me very fully. I think I may assume—the noble Lord will correct me if I am wrong—that I may at this stage refer to the letter that he wrote to me in regard to this matter. He pointed out—and of course it is so right—that the provision in 1961 was introduced following the recommendations of the advisory council on the treatment of offenders. The noble Lord said that it was intended as part of a general move towards the abolition of imprisonment for young offenders and the substitution of a system of more constructive training. Admirable! The letter goes on: In the years following the enactment, the difficulties which the restriction in Section 3 placed upon the courts became apparent".

A very clear statement. "Became apparent" is, if anything, a very generous understatement, but absolutely true.

Then the noble Lord points out that the difficulties were one of a number of factors which prompted an inquiry in the sense that the advisory committee on the penal system was asked to review the treatment of young adult offenders, and the result was that they reported in 1974. We are now of course in 1977 and the Advisory Council's report acknowledges the unhappy fact that there are considerable numbers of young adult offenders whose persistently anti-social behaviour requires that they should be held in custody. Unhappily that is true. For these offenders the report recommended the consolidation of the existing sentences of imprisonment, borstal training and detention into a new form of custodial sentence: the custody and control order.

The noble Lord says in his letter that one effect of this change would be to remove limitations regarding length of sentence which the borstal sentence has imposed on the higher courts, and the availability of such an order would restore to judges the freedom to relate the length of a sentence more directly to the particular offence. What then? The letter says that the then Home Secretary gave a broad welcome to the proposals. The letter goes on: There had been extensive consultation about publication of the report but no decision has yet been reached on its detailed and complex recommendations. All that can be said with certainty is that our ultimate response is bound to be conditioned by present financial constraints".

"Present financial constraints". I seem to have heard a little about that before during this afternoon. No one who has been present would accuse the noble Lord or accuse the Home Office of being unmindful of "present financial constraints". Then the letter goes on: The question of the future of section 3 is of course closely bound up with the response to the Advisory Council's proposals ". It rather seems as though it will be bound up for a very long time ahead. The letter concludes as follows: …quite apart from the serious practical difficulties which a repeal of section 3 would create, a return to the position before 1961, perhaps adding substantially to the numbers of young offenders sent to prison, would be regarded by many who are concerned with penal policy as a serious retrograde step". I am unaware of "any serious practical difficulties". This section can be got rid of straight away, at a stroke, immediately: and as for the suggestion that it will add to the numbers of young offenders in prison, I submit that is an assumption which cannot be made. It may well be that if this section disappears from out Statute Book, the effect may be to reduce the numbers in prison.

May I just tell your Lordships of a case about which I read in the All England Law Reports: the case of Gillespie. This is what happened in that case. The man, who made an application to the Court of Appeal, was aged 19. He had 11 previous convictions mainly for dishonesty. What had happened to him? He had at one time been given a conditional discharge; then in 1967 he had been put on probation; another time he had been sent to an approved school; another time he had had a conditional discharge; another time he went again to an approved school; another time he went to a detention centre. Then he was put on probation, then he was fined; and finally, in 1971, he was sent to borstal. What did he do then? He absconded and, having absconded, committed three offences of burglary and one offence of going equipped for theft. He was charged with those offences and pleaded guilty. The learned judge, knowing that he had been in borstal, thought: "I can pass a sentence provided it is over 18 months". Therefore he passed a sentence of 21 months. Then he was told, "but you cannot do that". The judge had thought that was the appropriate sentence, but after being told that he could not do it, the convicted man was brought back some 13 days later and an argument took place as to whether Section 3 really applied. Could it be said that somebody had served a borstal sentence when he had actually absconded from borstal? It was argued, and the judge came to the conclusion that it could not be said. He decided that his previous sentence was a nullity, and he substituted a sentence of three years' imprisonment on each charge.

The convicted man said that the judge earlier had thought 21 months was right but now he had passed a sentence of three years. He applied to the court for leave to appeal against this sentence, and the result was that the Court of Appeal said that the judge had given reconsideration to the matter; he had had second thoughts and, after considering it all, he thought that three years was the right sentence for what the man had done. The Court of Appeal therefore saw no reason to think that three years was not the appropriate sentence for those offences. Had they come to the conclusion that it was not the appropriate sentence, what could the court do?

Here we have this trammel on a judge's discretion, of not less than six months but otherwise it must be more than three years, or, if someone had served in borstal or been in prison, then it must be not less than 18 months. I submit that this is wholly illogical and wholly undesirable. It is quite wrong in principle to fetter judges in that way. Matters are entrusted to the judges so that they may apply their accumulated experience to do what they think is right in all the circumstances. Can it be reasonable to say: "Whatever you think, we lay it down as a matter of law that it must be not less than this or not more than that"?

I submit that such a prohibition is indefensible, and the result of this Amendment, if carried, might well be that the number in prison could be less. There may be some cases where the judge has felt constrained to pass a sentence of under six months, although, if unfettered, he might pass a sentence of more than six months. There may be other cases where a judge has said: "Parliament says it must be more than three years", and he has taken that advice of Parliament, although in his heart of hearts he thought that a somewhat shorter sentence would be appropriate. Therefore, I suggest to your Lordships that here is an Amendment that would not involve any expenditure but might result in a diminution of expenditure, if the length of time for which some people are in prison might be diminished.

The section has given rise to troubles over and over again. I am sure the noble and learned Lord the Lord Chancellor will know that time after time this section has proved a trap. A judge has been concentrating his mind on what may be the right thing to do, having regard to the particular case, the particular offence and the circumstances of a particular offender, and, having concentrated his mind, has reached a conclusion and is then told: "You cannot do it. The law says you cannot do that". I submit that is intolerable, and I believe this section has had few, if any, defenders. Again and again—I am sure that the noble and learned Lord will bear me out—from the Bench there have been cries that this section was an impediment. I respectfully submit that we have now an opportunity to remove it and, by its removal, to benefit the law of the country. I beg to move.


May I crave the indulgence of your Lordships for one moment in order to supply the information for which I was asked earlier. It is not strictly in order, but I hope that I may be permitted to do it. The noble Lord, Lord Hawke, asked about the number of people now in prison for non-payment of rates and taxes. I am informed by the Home Office that at any one time there are about 20 such persons. That figure has remained fairly constant over the last three years.

6 p.m.


That gave me a little time to think what I would say in following my noble and learned friend Lord Morris. My noble and learned friend has made a powerful and devastating attack on Section 3 of the 1961 Act. So far as I can recollect, the noble and learned Lord, Lord Hailsham, was a member of the Government at the time that Act was passed, and I was Attorney-General. I have forgotten what office he held, but as Attorney-General I was certainly involved in all the discussions which led to the enactment of this provision. So that, in a sense, what my noble and learned friend has said is a criticism of those responsible for this section initially.

I regret very much that the noble Lord, Lord Butler of Saffron Walden, who was Home Secretary at the time, is not here to hear what my noble and learned friend Lord Morris has said. I do not think it would be improper of me to say that there were long and, sometimes, controversial discussions before this section ever found its place in the Bill which became an Act. Nor do I think it would be right for me to say what part I played in those discussions. But this I can say, that this section was. introduced with the very best of intentions.

No one who has heard the speech of my noble and learned friend can think that this section has fulfilled the hopes with which it was passed. He has referred to it as a trap, and I must say that ever since it has been enforced I myself have heard nothing but criticism of it from all concerned in the administration of justice in the criminal courts. My noble and learned friend Lord Morris has very long experience as a High Court Judge in considering what sentences to pass. My noble and learned friend Lord Diplock, who is unfortunately unable to be here, has also had very long experience of that. I cannot claim anything like the same experience. But my noble and learned friend Lord Diplock has asked me to say that he very strongly supports this Amendment moved by my noble and learned friend Lord Morris. Also, I understand—and I hope it is the case—that my noble and learned friend Lord Salmon will say a few words, for he, too, has great experience as a High Court judge.

I do not want to multiply instances of the unfairness which this section can cause, but I should just like to give one. My noble and learned friend Lord Morris has referred to individual accused. But the problem arises more often, and in a more acute form, where there is a gang of youths before a court charged with an indictable offence, and where it is not really possible to distinguish between them on account of the parts they played in the commission of that offence, and the only distinction between, say a gang of four is that one is of 20 years of age and three are of 21 or 22. The case is a serious one and let me assume that the judge, in the exercise of his discretion and having considered every relevant fact, comes to the conclusion that the right sentence is one of 12 months, or maybe 18 months. He can pass that sentence on those aged 21 and 22; he cannot pass it on the one aged 20. Yet would it not be patently unfair for a sentence of 12 or 18 months to be passed on the three who are 21 and over, and of only six months on the youth because he was born a year later?

So what happens? I think that in most cases the judge feels that that would be so unfair that the operation of this section compels him to pass a sentence which is the maximum—unless he goes to the other extreme of about three years—that he can pass on the youth of 20, and he gives them all six months; a sentence which may well appear to the public wholly inadequate for the offence committed, a sentence which may make many young people think that the criminal law can be flouted with impunity. That is not a good thing.

Again, if you look at the other end of the scale, you may get some judges who are thinking, "Can I give three years, or will a little less be sufficient"? Not having the power to give a sentence a little less than three years, the possibility may come that they pass a sentence of three years. So that if this section was not there the prison population might be less, because the judge might pass a lesser sentence.

I have had the advantage of reading a copy of the letter of the noble Lord, Lord Harris, and I am grateful to him, as I am sure is my noble and learned friend, for expounding the reasons for this proposal. But I cannot accept the argument, for I do not think that there is any foundation for thinking that the repeal of this section will lead to a substantial increase in the number of young persons sent to prison. At one end of the scale, it may lead to people being kept in prison a little shorter time. At the other end of the scale, it may lead to some being kept in prison a little longer time. But, so far as I can see, it certainly will not lead to more people being sent to prison. Yet in this letter, to parts of which my noble and learned friend did not refer, there is a sad reference to the 40 per cent. increase in young offenders in the last two years, and the argument is put forward that one reason for resisting this proposal is that it would lead to an increase in young offenders sent to prison. I do not myself accept that it will.

I will not spend any more time in dealing with the serious problems, the inadequacies and the injustices which result from this section, but I should like to deal with what is likely to happen in future and there I found the letter of the noble Lord, Lord Harris, most disappointing. The then Home Secretary was obviously so impressed with the difficulties which this section was causing that, despite the fact that it had already been before one advisory committee of the Home Office, he sent it to another—the Advisory Committee on the Penal System—and, as my noble and learned friend has said, that Committee reported in favour of the abolition of this section. That was in 1974—three years ago—and for those three years the learned judges' powers have been fettered, as they were since 1961, and these problems have continued to exist. One could put up with those three years if there was any real prospect of the provisions of this section being brought to an end. But when one examines the noble Lord's letter, no real hope is held out of that being brought about.

My noble and learned friend has referred to the powerful argument about financial restraints. I will not touch upon that point again, because it has been so adequately dealt with by my noble and learned friend. There is a reference to the prison population. It is said in the letter that if any more young persons are sent to prison, they can be kept only in local prisons—a confession, as I read it, that the facilities are not present in the Prison Service for the proper treatment of young persons who are sent to prison.

Quite apart from this section, it may be the case that the number of young persons whose conduct leaves it possible only to send them to prison increases and that they will then have to go to the local prisons. But that is no argument, I suggest to the Committee, for keeping this section, a cause of injustice and a cause for bringing the criminal law into contempt, still in operation. The noble Lord ended his letter by a reference to …a return to the position before 1961. Perhaps adding substantially to the number of young offenders sent to prison would be regarded by many who are concerned with penal policy as a serious, retrograde step. It would certainly not accord with the approach adopted by the Advisory Council which envisages a shift in emphasis from treatment in custody to treatment in the community". That is the final argument advanced. I ask your Lordships' Committee to bear in mind that the basis of the argument is an assumption that repeal of this section means more young persons being sent to prison. For the reasons I have given, I do not think that that assumption is warranted. Looking back upon it, I take the view that the Section 3 approach is wrong. I doubt very much whether a sentence of any period up to six months serves any useful purpose. Also I doubt very much whether a sentence of one, two or three months does any good to a young offender. I should prefer powers to pass that kind of sentence to be restricted rather than that it should be made impossible for a judge to pass a sentence between six months and three years. By all means let us bring in this new policy; let us have some hope of it being done. But there is no hope held out here of it being done in the immediate future. Unless this Amendment is accepted we are to go on with judges faced day after day with this problem, with this fetter on their powers, which is productive of injustice. As one who has to admit in some degree responsibility for the enactment of this section, I urge upon the Home Office now to agree that it should be got rid of as speedily as possible.

6.13 p.m.


Originally I had put my name to Amendment No. 96 which sought to achieve precisely the same end in a slightly different way; namely, by including the repeal of this section in the repeals clause of the Bill rather than by making it a separate clause, as has been proposed by the noble and learned Lord, Lord Morris of Borth-y-Gest. It would be presumptuous of me to seek to add very much to the weight of what has been said by the two noble and learned Lords who have already spoken. If I may say so, on a somewhat lower stratum than the Appellate Committee of your Lordships' House, I have never met a judge accustomed to trying criminal cases who had anything other than criticism for this section and who did not regard it as wholly inhibiting his discretion in dealing fairly and justly with young persons, causing him sometimes to pass sentences that were unfairly long and sometimes sentences that were unfairly short and therefore in both cases leading to injustice.

I want to draw your Lordships' attention only to one odd anomaly that has arisen as a result of this offending section. In the Power of Criminal Courts Act 1973 a constructive and humane form of treatment and punishment was devised in Section 26. This was the suspended sentence supervision order. The section provides that where a court passes on an offender a suspended sentence for a term of more than six months for a single offence, the court may make a suspended sentence supervision order. If the offender is aged between 17 and 21 and the provisions of Section 3 of the Criminal Justice Act 1961 apply, the sentence of imprisonment would have to be either six months or less, or three years or more. If the sentence is six months or less, the provisions of the suspended sentence supervision order are not applicable; if it is three years or more, a suspended sentence cannot be passed because the maximum suspended sentence is one of two years' imprisonment. Therefore the result of the putting together of three separate statutory provisions is that a form of treatment which was devised in 1973, which was regarded as being humane and sensible and a way of keeping people out of prison and helping them to reform, is not available at all in the ordinary way for young persons.

I doubt whether the legislature could have intended that we should have arrived at such an absurd situation. It is an illustration of some of the undesirable consequences that have flowed from the existing Section 3 of the 1961 Act. I venture to hope that in those circumstances, having regard to the observations which have been made this afternoon, the Government will agree that the time has now come when this offending section should be repealed.


Our attitude to this Amendment is governed very largely by the policy of the Government in relation to the proposals of the Penal Advisory Council's report on the young adult offender. The report recommended that instead of having this great variety of institutions—borstal, the detention centre and young persons' prisons—we should have a single type of custodial institution for all young adults and the new sentence of a custody and control order which would be of an indeterminate character, in the sense that the total run of the order would be fixed and that the part of it to be served in custody would be completely open; that is, any kind of length within the total maximum of the order would be legal. This would do away with the 1961 Act provision, which I agree has created great confusion. It has not only annoyed the judges very much, as we have seen, but it has also totally altered the nature of the borstals. Previously these were selective institutions to which young people were sent if it were thought that they were good subjects for training. Now the borstal institutions or the detention centres have to take everybody who is given an intermediate sentence. If the Minister can tell us that there is hope that the recommendations regarding the young adult offender are likely to be put into operation, I would suggest that this is not the time to take two bites at this cherry—even if it is ever the time to take two bites at a cherry—because this Amendment would fall by the wayside straight away.


I should like strongly to support the Amendment. I support it almost as strongly as I would support the principle that no young person should be sent to prison for the first time if the public interest can be protected by using some other method of deterrent. Also, I am inclined to think that nobody under the age of 21 should be sent to prison for the first time except for crimes of violence. I have no doubt at all that the view which I have expressed is shared by all the Judges who try crime. It is with the greatest reluctance that any young person of 21 or less is sent to prison. It has been said that Section 3 has annoyed the Judges. It saddens me, because it really prevents justice from being done. My noble and learned friends have given instances of how it has acted in a way inimical to our ideas of justice; how it has prevented the Judge from doing the job that he is sitting there to do, and I am not going to repeat them. But if anyone thinks that Section 3 is cutting down the prison population, in my humble view he is making a big mistake.

I should like to give your Lordships just one example from my own experience—and I have had six and a half years' experience as a Judge in the Queens Bench Division, which may explain why I feel so strongly about this matter. It was my misfortune to try four young men for the most shocking robbery with violence. They got hold of a couple of bank messengers, cracked their skulls and got away with several thousand pounds. These young men were in their early twenties: one was only 21, one was 22 and I think the others were 23 or 24. However, it was my duty to send them away for considerably more than three years. Before I did so the officer in charge of the case went into the witness box to tell me about their previous records and I will give one, which is symptomatic because they were all very much alike. This young man had a long list of previous convictions for which he had received sentences of quite small fines and the last two offences which he committed were as follows.

He went into a billiard hall where the tables were full, so he went up to one table and said to the players—I do not think he used these exact words but he said words to this effect—"Would you mind if I came and played at this table and you went away?" He received a reply something to the effect that it was unlikely that they were going to give up the table. So he walked over to the rack where the billiard cues were kept, he picked up a billiard cue, he broke it in half and he then ripped the boy's face to pieces so that he had to have 30 stitches in it. He came up (it is true not before a judge but before the local magistrates) and he was fined as much as £25. A few months later—certainly less than a year later—he made a proposal to a girl friend who did not receive it with the enthusiasm which he thought it deserved, so he knocked her down, he then put in the boot and smashed her jaw and one cheekbone. On that occasion the tribunal hardened their hearts and sent him to prison for six months.

I reckon that that boy was almost encouraged into a life of crime because the tribunals before whom he appeared left him with the feeling "I rather enjoy crime and there is nothing much in it. If I can do what I have done and get away with it for £50 on one occasion and £60 on another and six months on a third, this is not a bad way of earning a living". I am quite certain—or as certain as I can ever be—that if that young man and his companions had been treated adequately on the occasions to which I have referred I should never have seen them standing in the dock, charged with one of the most grave robberies with violence that one could imagine.

So this clause is not helping to keep young people out of prison; it is encouraging them to commit acts that will send them there. Without it the courts would have the power to deal with them justly and I am sure your Lordships will accept from me that we are not ogres on the Bench. It is very painful to send any young person to prison and it is a power that would only be exercised in the rarest circumstances, but in circumstances where it was necessary, not only in the interests of the public but in their own interests, to teach them a lesson. I believe if we could get rid of Section 3 we should do a great deal to diminish crime among young men and I have no doubt at all that we should be doing nothing to achieve an object which no one would deplore more than I should, that is to increase the prison population so far as young people are concerned.


I hope the Government will take this Amendment very seriously as they have heard three or four extremely weighty speeches by extremely experienced Judges and I do not want to repeat in any degree what has been said. This section was passed with the very best of intentions and it has proved to be bad in its effects. The noble and learned Viscount, Lord Dilhorne, reminded us that I was a Member of the Government at the time, and so was he. The only difference was that I was Minister for Science and he was Attorney-General—a difference to which he did not draw the attention of the Committee.


With great respect, I disclosed that I held the office of Attorney-General but the noble and learned Lord has held so many offices that the office which he held at that particular moment escaped my recollection.


I am sure the noble and learned Viscount was entirely inadvertent in his failure to point out the distinction between us. However, as I was quite unaware of the terms of the Act of 1961 at the time it was passed but learnt of it later, it allows me to approach the matter with a considerable degree of detachment.

Let us consider what we have heard. Let us suppose that standing in the dock at the Old Bailey there are three young men, each of the same age, and the Judge at the Old Bailey considers that 20 months is the correct sentence. One has been to borstal and served his sentence. He can go to 20 months, unless I am mistaken, because the bar imposed by Section 3 is not available for those who have served their sentence at borstal. Number two has been to borstal but has absconded before his sentence is complete; he cannot go to 20 months, because it is rightly held that to abscond from borstal—although one might think it aggravates the guilt of the young man—does not constitute serving your sentence at borstal; so he cannot get 21 months. He has to be given either three years, which is more than appropriate, or six months, which is less than appropriate.

The third young gentleman has a widowed mother and there are other extenuating factors, and the judge considers that although 21 months is the appropriate prison sentence he can suspend it. He discovers that he cannot do that, for the reason explained by the noble Lord, Lord Wigoder. Is that justice? The answer is obviously that it is not, and nobody supposes that it is. Then the noble Baroness, Lady Wootton, says "But it all depends on what happens to the Advisory Committee"—I forget its exact title—which reported in 1974 and about which nothing so far has been done. I do not altogether agree with that, because—I forget at what stage, but I think it was the noble Lord, Lord Harris, said "This is going to cost money because it involves a totally new form of custodial sentence". So we cannot do it in this dire moment of our national humiliation, brought about—well, we will not say why it was brought about, it would introduce an unseemly note of controversy into this happy atmosphere. So we know that he is not going to do it.

The question is really why should the Judiciary be compelled to operate this absurd system for an indefinite number of years because the Government cannot afford to introduce the recommendation of this Committee, which may well be rational but which would cost too much money, but which at least involves the abolition of this absurd section. I do think that is not quite good enough. I am not dominus litis in this case; the formidable array of cannon sitting on the Cross-Benches are domini litis in this case, but if they are charged with shot, as distinct simply from firing blanks as I fear they are sometimes inclined to do, I shall follow them into battle.


May I speak for a very few minutes. I have found this a most interesting debate. I shall be only too delighted if Section 3 is removed. But what really worries me, as an ordinary individual and an ordinary magistrate, is why it has taken so long for the learned judges and all the learned people who have spoken this afternoon to bring this forward with a view to getting the section removed. As a matter of fact, having been a long time in another place, I always used to argue to myself that it took 10 years before you could arrive at removing some injustice; but considering the importance of the people concerned I still find it very worrying that it should have taken so long.

I am not really interested in Governments. All Governments sometimes say they cannot find time, or they do not agree with it or the civil servants do not agree with it, or the advice tendered is not the right course for them. That never interested me, and I am not in the least interested what this Government think they are going to do. I hope that your Lordships' Committee will divide if you do not get your own way, because I think this is very important. All I am saying is that the matter seems to be so important that it worries me that it has taken so long before this galaxy of learned and experienced people have come to their decision that Section 3 must be removed. I can only hope, having listened to the debate, that Section 3 will be removed, even though the Government do not seem to want it to be removed.

6.36 p.m.


I think this has clearly been an important debate. It has had a number of agreeable features, one of them undoubtedly being the instant memoir writing we have had the benefit of hearing from the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Hailsham. I understand that when the noble Viscount was actively involved in discussing this question in 1961 the noble and learned Lord, Lord Hailsham, was busy on scientific questions. However, I have some good news for the noble Viscount; when this matter was debated in 1972 in this House, and the then Government took the view that I am now taking, the noble and learned Lord, Lord Hailsham, was the Lord Chancellor, and therefore had perhaps rather more direct responsibility.


No, no; the Home Office had responsibility, as every Lord Chancellor knows to his cost.


In that case I will merely say that the noble and learned Lord snared the collective responsibility with the Home Secretary and other Ministers. I was delighted to see the noble Viscount, Lord Colville of Culross, enter the Chamber a few minutes ago, because he on that occasion suffered the same experience as I am suffering today; namely, putting the case of the Home Office as to why we do not favour the Amendment, though recognising the very serious issues of policy that have been deployed during this debate.

If I may say so, I will, I fear, have to speak rather longer on this Amendment, for a reason which will become obvious to the Committee; that is that my right honourable friend the Home Secretary made a Statement in another place today in his Answer to a Written Question; I want to cover this evening in this Committee the same ground, indeed in rather greater detail than my right honourable friend had the opportunity of doing in his Written Answer. The matter which we are discussing today does raise a very broad issue of criminal policy relating to the sentencing of young offenders; that, of course, is the core of this debate.

The treatment of young adult offenders—that is, people between the ages of 17 and 21, and those for whom the borstal and detention centre system is primarily provided—has preoccupied Parliament, the Judiciary and the Administration for many years. In the late 1950s there was a review by the Prison Commissioners, and then subsequently by the Advisory Council on the Treatment of Offenders, which led indeed directly to the 1961 Act, which is what we are now discussing; it is, of course, as has been emphasised, a major amendment to that Act which we are now discussing.

That Act, I acknowledge, has not given general satisfaction, and that is something of an English understatement in the light of the comments made this evening by a number of distinguished members of the Judiciary. Indeed, dissatisfaction with that Act was one of a number of factors which a few years ago contributed to a general uncertainty about our arrangements for dealing with this age group, which contributes disproportionately to the amount of detected crime and indeed to the population of custodial establishments. This led my right honourable friend the Prime Minister, when he was Home Secretary, to ask the Advisory Council on the Penal System to carry out a wide-ranging review. The results of that review were set out in the Younger Report, which was published in 1974. The then Home Secretary gave the report a welcome in broad terms and commended it for further discussion and consultation.

Against a background of a general policy of reducing reliance on custodial measures and more treatment of offenders within the community, the Council recommended two new sentences. The first, the custody and control order, which was referred to by my noble friend Lady Wootton of Abinger, would replace the existing custodial sentences—borstal training, detention centres, and imprisonment—subject to the statutory restrictions which the new clause seeks to remove. Under the new sentence the court would be able to specify the length of sentence in each case—as with a prison sentence—but there would be flexible release arrangements. The second new order—the supervision and control order—would be essentially a non-custodial measure, co-existing with probation but having a stronger emphasis on the control of those supervised and a new and wider range of associated powers and conditions.

My right honourable friend the Home Secretary has been considering the Council's report and the reaction to it, particularly in the light of subsequent developments as regards public expenditure. Although a statement on this subject at this stage can only be to some extent interim, it will, we hope, help towards clearing the air and removing some of the uncertainty that there is at present on this issue. As regards custodial sentences, we see a good deal of sense in a single sentence of broadly the kind recommended by the Council. It follows from that that we do not favour the solution embodied in the new clause, which we are now discussing and about which I shall say more in detail shortly. That would once again mean asking the courts to select some offenders for a training sentence while relegating others, on a much larger scale than now, to serve prison sentences.

Our conclusion therefore is that our eventual objective should be a single sentence which would give flexibility both to the courts and to the administration. This would not mean abandoning all classification of offenders. The advice reaching us is that to mix all types in the same institution, as the Advisory Council recommendations could imply, would be likely to have unfortunate results. But offenders can be sorted out and grouped without a hierarchy of different sentences. Nor do I imply acceptance of any particular solution of the problem of when and how to release offenders back into the community under supervision; here there are a number of options for consideration.

However, while we see this as the direction of future policy, I must emphasise that we see no prospect of early changes in the law or developments in practice. To make a good job of the custody and control order would be costly in buildings and manpower, and in the short term would have a disturbing effect on a custodial system which is under heavy strain—not least through the continuing presence, in increasing numbers, of juveniles under 17 years of age, contrary to what the Advisory Council recommended. It would be an act of folly to attempt implementation ahead of the resources needed. It is often said that implementation of the Children and Young Persons Act 1969 has been hampered because changes in law and administration outpaced the supply of resources. We believe there is some truth in that, and the last thing we should wish is to have a repetition of that situation.

So our conclusion is that for the present we must hold to the custodial system that we have, accept its shortcomings and do our best to improve its performance. On one minor, but not I hope unimportant aspect of this matter, however, I should tell the Committee that we are examining the provisions on supervision of young offenders released from borstal, where we believe there may be advantage in concentrating the limited available resources into a shorter period of supervision. This is something that the National Association of Probation Officers has been advocating. If our examination of the position points in that direction, we shall bring forward Amendments to the Bill.

Before I turn to the new clause, I need to say a word, for the sake of completeness, about the other main limb of the Advisory Council's plan—the new supervision and control order. This would also require considerable probation and other resources to make it a reality. But here there is also much less agreement over the policy. I shall take two major questions which have arisen. First, is the concept of "control" by social workers realistic, or would it arouse expectations which no system of supervised liberty could possibly fulfil? Secondly, would the order offer anything which the well-tried probation order cannot offer? In short, there does not appear to be sufficient measure of agreement that the line of advance should be towards the supervision and control order, rather than by building up the existing non-custodial orders and the resources devoted to them. There is no such agreement so far that we have been able to establish. In that situation our view is that, although the idea should certainly not be discarded for all time, it should indeed be put aside for the present.

I hope that what I have said about our thinking on the young adult offender report will be helpful to those working in the courts and in the services and agencies concerned with young adult offenders, and will provide a basis for discussion and planning in the short to medium term, as well as providing the backcloth to considerations of the new clause, to which I now turn. First, I acknowledge that many members of the Judiciary would support the noble and learned Lord in the view that Section 3 of the Criminal Justice Act 1961 imposes a fetter on the exercise of judicial discretion which they feel to be irksome. But it is legitimate to recall the intention when this provision was adopted in Parliament in 1961—the noble and learned Viscount did indeed touch upon it. This was, to exclude young offenders from prison as far as possible and to give them greater training opportunities than the prison system could offer. It was also thought difficult for the courts to make the distinction which the previous law required between young men whom training could be expected to reform and others for whom such beneficial consequences could hardly be expected.

The goal of removing as far as possible young offenders in the 17 to 20 age group from the adult prison system remains the aim of the present Government and will, I hope, be shared by the majority in your Lordships' House. It is no doubt true that the difference of régime between borstals and young prisoner establishments may not be as great now as the pre-1961 law assumed, and in all prison establishments the aim of helping the prisoner to help himself to a more constructive way of life remains. But it is still the case that the borstal system provides a better opportunity than prison for training and rehabilitating young offenders who have not previously been in custody or whose only previous custodial treatment has been in a detention centre. It would, I think, be a step backwards, and one which I should not like to contemplate, if we were to permit any young offender whose case did not warrant a really stiff sentence—of three years or more—to be deprived of this advantage.

I must also emphasise the practical consequences of a repeal of Section 3 at the present time. The noble and learned Lord, Lord Salmon, and indeed others, doubted whether there would be an increase in the prison population. I am bound to say that we do not share his view. Certainly I take the point that a number of noble and learned Lords have made that in some cases it may well be so; that a judge has awarded a greater sentence because of the provisions of the 1961 Act than otherwise would be the case. It would be quite absurd for me to pretend or seek to argue that such a thing had not on some occasions taken place. One has to try to establish what is the basis of probability in a case of this sort.

The noble and learned lord, Lord Salmon, went on to refer to two particularly horrifying cases of gross assault. In one case the magistrates had, after a most serious assault, fined a young man £25, and on the second occasion had given him a sentence of six months' imprisonment. As he would recognise, this is not touched by this Amendment, because if in fact they had awarded a greater penalty on the first occasion it may well have been—and I do not in any way disagree with him—that he might not have appeared before a court on a subsequent occasion. So that does not go to the heart of the argument that we now have before us.

I recognise at once that the effect of a change on sentencing practice of the kind envisaged in this Amendment cannot be predicted precisely, but I must repeat that in our judgment it could and might well lead to a substantial rise in the number of young offenders sentenced to imprisonment instead of to borstal training and, as a consequence, an increase in the number of young offenders in custody generally. Both borstals and young prisoner establishments are at the moment under extreme pressure. There is no surplus accommodation, and resources for expansion are simply not available. The young prisoner element in the total population now stands at an all-time high. As the noble and learned Viscount, Lord Dilhorne, rightly said, it is 40 per cent. higher than it was only two years ago.

The specialist young prisoner centres simply cannot accommodate even half the numbers we now hold, and an increased use of imprisonment for this age group could only result in an increase in the number of young prisoners remaining in wholly unsatisfactory conditions in grossly overcrowded local prisons. Last week, as a result of this debate, we carried out a spot check on the degree of overcrowding of young prisoners in local prisons. About two-thirds of the young prisoners in local prisons are held in five establishments. On 28th January in these five prisons there were 684 young prisoners in accommodation designed for 477. Four hundred and seventeen, almost two-thirds of the total of 684, were thus living in overcrowded conditions—two or more to a cell designed for one person. If anybody has been in these establishments—as has the noble and learned Viscount, who was an assiduous visitor of prisons when he was Minister of State at the Home Office—and seer the conditions which obtain, he would know the degree of the seriousness of the situation we are now discussing.

These harsh figures serve to underline the serious nature of the consequences which could flow from the proposed repeal. But the fundamental reason for not adopting the proposal in the new clause, certainly in the view of the Government and of the Advisory Council on the Penal System, is that it would be a major move in the wrong direction: back to selective sentencing and more use of imprisonment, and not forward to a single, flexible sentence which builds on the best of our experience in penal provision for young offenders.

For the reasons I have made clear, we cannot contemplate that forward move immediately, but our present view is that the direction pointed by the Advisory Council is right. We therefore oppose the clause which has been moved by the noble and learned Lord, Lord Morris of Borth-y-Gest. It would carry with it the grave difficulties which I have endeavoured to outline to the Committee.

We do not support the principle behind the new clause. But quite apart from that, I must emphasise that there would simply be no resources to implement the new clause if there were, as we believe there would be, a significant increase in the number of young prisoners in custody. Our young prisoner establishments are grossly overcrowded. The Amendment could make this still worse. Nor could we provide a switch of other resources. The serious overcrowding in the remainder of our prison system at the moment would simply rule this out. The central question is not simply that of resources; it is the statement which I have endeavoured to make today about the future as we see it of one of the principle recommendations of the Younger Committee. It is on that basis that I hope that the noble and learned Lord will not press his Amendment.

6.57 p.m.


May I, in reply, make three points. I am grateful to the noble Lord, Lord Harris, for all that he has said. First, I do not think that we have heard from the noble Lord one single word in defence of the present section. I do not think that anything has been said to refute the point I endeavoured to make, and other noble Lords have made, that this section is indefensible in theory, and the noble Lord has agreed that in practice it has given rise to very great difficulties. I therefore submit to your Lordships first that this section cannot in theory be defended. Its philosophy is wrong and cannot be defended.

Secondly, I listened to all that the noble Lord said, and I agree entirely that we want to diminish the prison population of young people and, where possible, if a custodial sentence has to be passed, that it should be a borstal sentence and not prison. The repeal of this section will not interfere with that for one moment. Nor is it of any relevance to this proposal to say that at present the population of young people in our prisons is very high. Of course it is, and one regrets it and does not want it. But repeal of this section, if I am right in submitting that it is illogical and indefensible and causing sentences to be passed which are to be regretted, will in no way add to the population of young people in prison, and in no way will it deter judges from imposing a sentence of borstal imprisonment wherever that is the right thing to do.

Thirdly, in regard to the long-term plan, I listened attentively to all that the noble Lord said in regard to the report. The report came in 1974, and the idea was a splendid one; namely, let us try and devise some new system; let us try and consolidate imprisonment, detention centres, borstal for those of an age group to be affected. Let us try and do that. That was admirable. The noble Baroness, Lady Wootton, gave her splendid support to that idea.

What does the noble Lord, Lord Harris of Greenwich, say? It must take time, he says, and of course it must. He also says that some new system will take expense, and of course it will, and we cannot afford it at the present time. However, to remove this section will not in any way delay any new system. It will not in any way make it difficult to carry out any new proposal. But are we, during the inevitable wait—in the period before this can be put into effect—to perpetuate a system that really cannot be defended, that is illogical and that has been condemned by all who have had to administer it? Are we to go on in the meantime with something that is wrong and ill-advised? Or are we to go on in the meantime with imprisonment on a rational basis, plus borstal sentences, plus detention centres, and then try as soon as possible to evolve some new system? In the meantime surely we must not perpetuate something that is wrong in principle and disastrous in practice. From all I have heard I think it is the view of your Lordships that this matter should be tested in the Lobby.

7.2 p.m.

On Question, Whether the said Amendment (No. 60) shall be agreed to?

Their Lordships divided: Contents, 62; Not-Contents, 73.

Allerton, L. Faithfull, B. Morris of Borth-y-Gest, L. [Teller.]
Amory, V. Falkland, V.
Avebury, L. Ferrers, E. Mottistone, L.
Aylestone, L. Fletcher, L. Mowbray and Stourton, L.
Barrington, V. Foot, L. Northchurch, B.
Beaumont of Whitley, L. Gainford, L. Paget of Northampton, L.
Berkeley, B. Grantchester, L. Pargiter, L.
Broadbridge, L. Hailsham of Saint Marylebone, L. Ruthven of Freeland, Lady
Brockway, L. Hanworth, V. St. Aldwyn, E.
Brougham and Vaux, L. Harmar-Nicholls, L. Salmon, L.
Bruce of Donington, L. Hornsby-Smith, B. Sandys, L.
Carr of Hadley, L. Inglewood, L. Sempill, Lady
Clifford of Chudleigh, L. Killearn, L. Somers, L.
Colville of Culross, V. Kinnoull, E. Strang, L.
Cork and Orrery, E. Lindsey and Abingdon, E. Swansea, L.
Daventry, V. Lloyd of Kilgerran, L. Tranmire, L.
De La Warr, E. Long, V. Vivian, L.
Dilhorne, V. [Teller.] Lyell, L. Wade, L.
Drumalbyn, L. Macleod of Borve, B. Ward of North Tyneside, B.
Elliot of Harwood, B. Merrivale, L. Wigoder, L.
Emmet of Amberley, B. Morris, L. Young, B.
Bacon, B. Hirshfield, L. Peart, L. (L. Privy Seal)
Balogh, L. Houghton of Sowerby, L. Phillips, B.
Beswick, L. Jacques, L. Pitt of Hampstead, L.
Birk, B. Janner, L. Plurenden, L.
Blyton, L. Kagan, L. Ponsonby of Shulbrede, L.
Brown, L. Kennet, L. Popplewell, L.
Burntwood, L. Kilbracken, L. Rhodes, L.
Castle, L. Kirkhill, L. Ritchie-Calder, L.
Champion, L. Leatherland, L. Rusholme, L.
Crook, L. Lee of Newton, L. Shepherd, L.
Cudlipp, L. Llewelyn-Davies, L. Soper, L.
Davies of Leek, L. Llewelyn-Davies of Hastoe, B. Stedman, B. [Teller.]
Davies of Penrhys, L. Lloyd of Hampstead, L. Stone, L.
Diamond, L. Lovell-Davis, L. Strabolgi, L. [Teller.]
Donaldson of Kingsbridge, L. McCarthy, L. Taylor of Mansfield, L.
Elwyn-Jones, L. (L. Chancellor) McCluskey, L' Vaizey, L.
Fisher of Camden, L. Maelor, L. Wallace of Coslany, L.
Fisher of Rednal, B. Mais, L. Walston, L.
Gaitskell, B. Milner of Leeds, L. White, B.
Gordon-Walker, L. Morris of Kenwood L. Willis, L.
Goronwy-Roberts, L. Murray of Gravesend, L. Wilson of Radcliffe, L.
Greenwood of Rossendale, L. Northfield, L. Winterbottom, L.
Gregson, L. Oram, L. Wootton of Abinger, B.
Harris of Greenwich, L. Parry, L. Wynne-Jones, L.
Henderson, L.

Resolved in the negative, and Amendment disagreed to accordingly.

7.10 p.m.


Before we move on, and as a matter of convenience for the Committee, may I ask the noble Lord, Lord Harris of Greenwich, how long he proposes to go on tonight, so that we may make our plans accordingly?


I think the noble and learned Lord will agree that we have made only limited progress today; we would like to make a substantial amount of further progress. If it is for the convenience of the Committee, I am perfectly content to discuss the matter through the usual channels, and I shall be glad to do so within, say, the next three-quarters of an hour, when we will see how we are getting on.


I was noticing how much better an effect a gin and tonic or two had than a three-line whip for the Labour Party! I just wondered how long the party was going to continue because I have no doubt that, from that moment onward, the noble Lord will be only too glad to suspend the proceedings.

Clauses 40 to 42 agreed to.

Clause 43 [Power to alter sums specified in certain provisions]:

The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Lord Donaldson of Kingsbridge) moved Amendments Nos. 61, 63, 64 and 65 en bloc:

Page 33, line 24, leave out ("but only if").

Page 33, line 29, leave out from ("order") to ("substitute") in line 31.

leave out line 36 and insert— ("(b) the definition of "the prescribed sum" in section 28(6A) above;")

Page 33 line 41, leave out subsection (3) and insert— ("(3) Where it appears to the Secretary of State that the difference between a sum to which subsection (4) below applies and the prescribed sum (within the meaning of section 28 above has been or would be altered or eliminated by an order made or proposed to be made under subsection (1) above, he may by order amend the enactment specifying the first-mentioned sum so as to substitute for that sum such other sum as appears to him to be justified by a change in the value of money appearing to him to have taken place between—

  1. (a) the last occasion on which the sum in question was fixed; and
  2. (b) the making of the order or proposed order under subsection (1) above.
(4) This subsection applies to any sum specified in any enactment contained in this Act or in any Act passed before, or in the same Session as, this Act as—
  1. (a) the maximum fine which may be imposed on summary conviction of an offence triable either way, or
  2. (b) the maximum fine which, in the exercise of any power by subordinate instrument to impose penal provisions, may be authorised on summary conviction in respect of an offence triable either way.
(5) An order under subsection (1) or (3) above—
  1. (a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and may be revoked by a subsequent order thereunder; and
  2. (b) without prejudice to priviso (b) to section 46(7) below, shall not affect the punishment for an offence completed before that order comes into force.")

The noble Lord said: With the leave of the House, I should like to speak to Amendments Nos. 61, 63, 64 and 65 together. After the fascinating discussions that we have been having, these will be rather humdrum Amendments. They are a very complicated series which try to effect something that is in itself quite simple. They are designed to spell out in detail the wav in which the inflation- proofing power will operate in respect of the maximum fine which may be imposed on summary conviction of an offence triable either way, laid down in Clause 28. The Amendments are linked to those to Clause 28 and between them they provide that enactments which create offences triable either way attract the operation of the power under Clause 43 to increase the maximum fine to take account of the change in the value of money in a way which preseves any existing differentials in the fines available in respect of different offences. In connection with Clause 28, the power to increase the maximum fine will be of great benefit in simplifying the penalty structure. It can, of course, only be operated by order, subject to the Negative Resolution procedure, and only if it appears to the Secretary of State that there has been a change in the value of money.

The first of the Amendments, the removal of the words. "but only if", is a drafting Amendment. The words, "but only if" are therefore redundant: the use of the word "if" alone provides an absolute restraint. The new subsections (3) and (4) which are introduced by this Amendment are designed to provide a power for the Secretary of State to increase by order the maximum fine imposable on summary conviction of an offence under an existing enactment attracting a fine which is different to the fine fixed by Clause 28. That clause fixes £1,000 as the normal maximum fine on summary conviction of offences triable either way, but this does not apply to offences which already carry a summary penalty of more than £1,000 or to certain drugs offences carrying a lower fine. If the power contained in the new subsections (3) and (4) were not provided it would be possible that, as orders were made increasing the maximum of £1,000, the differentials between the normal offences and these few exceptions would be eroded.

As I have already explained, when talking about Clause 28, future enactments which carry as the maximum fine on summary conviction of an offence triable either way the sum prescribed in Section 28 of the Criminal Law Act 1977, will be able to attract the power to increase the fine which is provided in this clause. Similarly, future enactments could attract the new subsections (3) and (4) to Clause 43 which I am now proposing for the purpose of maintaining differentials should Parliament see fit to do so. I hope that noble Lords will agree that this set of Amendments improves the way in which the power to increase penalties by order would operate, and I beg to move.

On Question, Amendments agreed to.

Clause 43, as amended, agreed to.

7.17 p.m.

Lord WIGODER moved Amendment No. 66:

After Clause 43 insert the following new clause:

Committal for trial under s. 1 of Criminal Justice Act 1967. 1967 c. 80

. No case shall be committed for trial by virtue of the provisions of section 1 of the Criminal Justice Act 1967 until there has been deposited with the Magistrates' Court a certificate, in a form to be prescribed by the Secretary of State, signed by the person conducting the prosecution and the defendant's legal representative, to the effect that they have each examined the witness's statements tendered to the Court, and are satisfied that the case is suitable for committal for trial under the said section 1.

The noble Lord said: I move this Amendment with a light heart and a springing gait because I know that it will diminish the resources that are at the moment being expended on the administration of the criminal law and will lessen the grave pressures on the Crown Court. It seeks a modest amendment to the committal procedure under the Criminal Justice Act 1967 and is entirely in accordance with the recommendations of the James Committee. Your Lordships will recollect that there is what used to be called the "old-fashioned" style of committal for trial in which witnesses give evidence at length and the evidence is taken down in the magistrates' court and considered at length by the magistrate. Under the Section 1 procedure introduced by the Criminal Justice Act 1967 it was possible, provided the defendant was legally represented, to dispense with the whole of that procedure. The statements were simply served by the prosecution and, provided both parties consented to the committal, the magistrate did not consider the evidence at all and there were no proceedings lasting more than 20 or 30 seconds in the magistrate's court. That has saved a great deal of time in the magistrates' courts but it has given rise to the problem that some cases are apparently now being committed for trial which should not have been committed for trial at all, and would not have been committed for trial if there had been a proper scrutiny of the evidence by the parties concerned. It is difficult to assess to what extent this goes on. I believe that research has disclosed that, of the number of acquittals at the Crown Court, something like one-third are acquittals by the direction of the judge at the end of the prosecution case.

Of course it does not by any means follow that those are all cases that ought not to have gone to the Crown Court—much can happen during the prosecution case that may lead to the judge stopping the case. But it is the experience of many judges who deal with criminal cases on a day-to-day basis in the Crown Courts—and I spoke to some only today about this matter—that there are a certain number of criminal cases being committed for trial under the Section 1 procedure that should never have got there at all. This has resulted in a great waste of resources. Legal aid is being spent unnecessarily, judge time is being taken up and expenditure incurred that could be avoided.

The provision in this Amendment seeks to apply what was suggested in the James Committee Report which was simply that, before there was a committal for trial under Section 1 from the magistrates' court, the person conducting the prosecution and the defendant's legal representative should each sign a short, perhaps informal, document to the effect that they had read the statements and that they regarded the case as being one that was suitable for committal for trial. I believe that that would obviate the problem and might save a certain amount of expenditure.


I do not believe that there is any conflict of principle here. The question is simply whether, as the noble Lord suggested, his procedure would obviate the problem. On the whole, the Government's view is that it would not. We accept, of course, that under Section 1 an enormous saving of time has taken place and it is used in the vast majority of cases.

Some witnesses to the James Committee expressed the view that, as a result of the Section 1 procedure, a significant number of cases are committed for trial, as the noble Lord suggested, on evidence which does not justify a committal. It was claimed that this was due partly to a lack of proper consideration of the evidence before committal proceedings by the defence and prosecution, and partly to the parties and the court being too ready to adopt the Section 1 procedure. The James Committee were given examples of cases committed for trail under Section 1, which would probably not have been committed had proper consideration been given to the evidence by the parties. They therefore concluded that steps should be introduced to avoid this and proposed a procedure whereby both the prosecution and the defendant's legal representatives would have to sign a statement to the effect that they had each examined the witnesses' statements and were satisfied that the case was a suitable one for committal under Section 1. This is the force of the Amendment which the noble Lord is moving.

In the consultations which took place with representative organisations after publication of the Committee's report, reaction to this recommendation was mixed. The Magistrates' Association and the London Stipendiary Magistrates feared that this would result in more old style committals under Section 7 of the Magistrates' Courts Act 1952, because some advocates and police officers might be excessively cautious in regard to the signing of certificates, so as to avoid the possibility of criticism in the Crown Court. The Magistrates' Association suggested that the likely effects of implementing the recommendation should be very carefully considered. The Justices' Clerks' Society supported the recommendation in principle, but said that any significant increase in committals under Section 7 could result in further serious congestion in magistrates' courts. The Prosecuting Solicitors' Society found it difficult to understand the advantages that would flow from the signing of a certificate. They pointed out that it is stating the obvious to say that prosecuting solicitors do not prosecute in any case in which they are of the opinion that there is insufficient evidence to put before the court. I think that there was a fairly valid point made there.

The Government gave very careful consideration to these views and concluded on balance that the recommendation should not be implemented in the Bill. A major factor in reaching this decision was the probability that, if it were accepted, the number of old style committal proceedings would increase, for the reasons given by the Magistrates' Association. So far as the prosecution is concerned, the point has been made that prosecuting solicitors do not prosecute anyway if they think there is insufficient evidence. So far as the defence is concerned, it is not clear what criterion of suitability would be used. In paragraph 236 of their report, the James Committee observed that it would be unreasonable and wrong for a solicitor to be expected to certify that he was satisfied that there were insufficient grounds for a submission of no case to answer; this suggests that the Committee accepted that signing the certificate is not to imply that the defence thinks there is a case to answer. What then would be an unsuitable case?

As already stated, the Government's view is that, in so far as the proposed new clause would have any effect at all, it would be to increase the number of old style committals. This might be tolerable if it would also result in a decrease in cases actually committed, but it is by no means clear that this would be the result and the Government therefore consider that it would be undesirable on balance to adopt the proposal. I repeat that I do not think that there is any question of principle. It is a question of whether signing to the effect that one has done something that everybody knows one ought to have done has any very great effect, and the Government view is that in so far as it did have any effect it might have effect of the wrong kind. So I hope that the noble Lord will not feel obliged to press this matter.

7.24 p.m.


I hope that before the Report stage the Government will give further consideration to this matter, possibly with a view to coming back with an Amendment of their own. I go back to the days when one used to go before a stipendiary magistrate and all the witnesses had to give their evidence, which was taken down by the clerk in longhand. Then the magistrate would say, "I can't do any more today. Come back today fortnight." I am sure that it is not too much to say that if we had not accepted the recommendations of the Tucker Committee to stop all that nonsense, the magistrates' courts would have completely broken down. There can be no doubt about that at all. But there has been this disadvantage, that when Sir Robert Mark got out his famous figures of the number of acquittals in cases tried at the Crown Courts, we found that 30 per cent. of them were cases in which the jury had not acquitted at all; the judge had directed the jury that they must acquit because the case ought never to have been there at all. This is a defect, and I should have thought that something ought to be done about it.

Whether the exact Amendment of the noble Lord, Lord Wigoder, with the matter of the certificate and so forth, is the right one is no doubt a matter for argument, but there is here a real problem. Indeed, there are too many cases going to Crown Courts when there is no case to try. This cannot be right, and I would respectfully invite the Government to consider before the Report stage whether they might think of some way of dealing with this matter themselves.


I should like to support the noble and learned Lord, Lord Gardiner, very strongly about this, and I am sure that this is one of the major causes for congestion, perhaps particularly in the circuit court. The noble and learned Lord, Lord Hailsham of Saint Marylebone, said that a judge who knew his business could stop a case immediately if it was wrongly committed. But I venture to think that there is some doubt about that, in view of some of the decisions. If he is not able to persuade the prosecution to offer no evidence, he must I think hear the evidence for the prosecution before he is entitled to direct a jury to bring in a verdict of not guilty on the ground that there is insufficient evidence to warrant the case being answered. That all must take time, and quite apart from taking time there is one aspect of the matter which the noble and learned Lord, Lord Gardiner, did not touch upon. When a case is committed for trial it is on statements; but when it comes to the place of trial all the trouble has to be taken to secure the attendance of those witnesses, and the expense of that cannot be inconsiderable. They all have to attend the trial when in fact there ought never to be a trial at all. I hope that the noble Lord will have a further look at this matter.


The Government view is that this particular suggestion would not do any good, but I do not think that the Government deny the reality of the problem which the two noble and learned Lords as well as the noble Lord, Lord Wigoder, have been speaking about. I am quite sure that we will look at this to see whether we can devise something other than this proposal, which we do not think is effective; but, naturally, I cannot promise that we will succeed.


Of course I will not seek to press the Amendment this evening, and in a moment I will ask leave to withdraw it. I should like to mention two comments arising out of what has been said by the noble Lord, Lord Donaldson of Kingsbridge. First, I do not think that it is a satisfactory answer to say that the prosecuting solicitors are satisfied that no case would ever go forward unless there was a prima facie case, because in a very large number of cases the prosecuting solicitor has nothing at all to do with the preparation of the documents for a Section 1 committal. A police officer simply bundles up every conceivable statement that he can find and regards that as constituting in some ways a prima facie case.

The other observation that I wish to make as a suggestion to the noble Lord is that he might consult some of the Judiciary at circuit court level as to whether in fact there are cases being committed for trial which would never have been committed if both parties had had a proper look at the papers beforehand. If, for example, he would approach the Recorder at the Central Criminal Court and the chairmen of the various Inner London Crown Courts, I suspect that he would find that, there is here a rather more serious problem than at the moment he admits to, and that there is a practicable way of dealing with it, perhaps along the line of the Amendment. No doubt we would all want to look at this matter again, and for the moment I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 44 [Provisions applying to Scotland]:

Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 67:

Page 34, line 27, at beginning insert ("sections 43(2) and 80 of the").

The noble Lord said: I think a very brief introduction to this long and complicated series of Amendments will probably be enough, but if noble Lords ask for more they can certainly have it. The effect of this group of Amendments, which are consequential on Clause 18 of the Bill, is to repeal (in relation to England and Wales only) certain statutory provisions which impose a time limit on the summary trial of an offence which, under the Bill, is triable either way. Clause 18 abolishes such time limits, and these Amendments bring the relevant Statutes into line by repealing specifically the provisions which thereby become inoperative. That is all I will say by way of introduction, but I shall be very happy to expatiate in detail if noble Lords wish me to. I beg to move.

On Question, Amendment agreed to.

Clause 44, as amended, agreed to.

Clause 45 agreed to.

Clause 46 [Citation, etc.]:

Lord HARRIS of GREENWICH moved Amendment No. 68:

Page 36, line 14, at end insert— ("(c)section 31 and Schedule 6, so far as they amend any enactment which extends to the Channel Islands or the Isle of Man, extend to the Channel Islands or the Isle of Man, as the case may be;")

The noble Lord said: This Amendment has been made at the request of the Governments of Jersey, Guernsey and the Isle of Man. The Amendment will enable the increase in maximum fines listed in Schedule 6 to apply to the Channel Islands and the Isle of Man in respect of such enactments listed in the Schedule as so apply. I beg to move.

On Question, Amendment agreed to.

Clause 46, as amended, agreed to.

Schedule 1 [Offences made triable only summarily, and related amendments]:

7.33 p.m.

Lord BRUCE of DONINGTON moved Amendment No. 69A:

Page 37, leave out lines 6 to 23.

The noble Lord said: With Amendment No. 69A it will be convenient to take Amendments Nos. 69B, 70A, 71A, 71B, 83A, 83B and 83C. The purpose of these Amendments is to effect such changes in Schedule 1 as would then, subject to two modifications which I shall mention in a moment, bring this Schedule into more precise conformity with the proposals I put forward in Committee on 27th January when discussing Clause 14. The Committee will recall that I stated that I stood upon the opinion that no person accused of an offence which, if there was a conviction, carried the risk either of imprisonment or of damage to his honour or good name, should have taken away from him the right to elect for trial by jury.

I will not enlarge on the theme that I ventured to lay before the Committee on that occasion, save to say this. My noble friend Lord Harris, when replying, dealt at some length with the effects of the actual Amendments that I tabled on that occasion, as indeed he was entitled to, which of course, due to the fact (as I admitted when introducing my proposal) that they were not correctly drafted, gave rise to a series of quite ridiculous considerations, which I suspect he knew very well I had not in mind when producing my original proposal.

At the same time, the only answer that my noble friend gave to the proposition, which I venture to repeat today, was the argument that the proposal would do nothing to alleviate the overcrowding or the long waiting list of cases in the Crown Court. The Committee will recall that the noble and learned Lord, Lord Morris of Borth-y-Gest, in what I thought your Lordships' Committee agreed was a devastating and simple speech, had the short answer to that—and I quote from his concluding remarks: I suggest that there are many ways of shortening trials that might well relieve the present position. I submit that here is an important point of principle and that the case for a change involving the withdrawal of a cherished right has not been made out".—[Official Report, 27/1/77; Vol. 379, col. 676.] As I say, I do not propose to enlarge upon the theme which I sought to lay before the Committee on the 27th, but I do suggest that nothing that we have heard has done anything to change the correctness of the essential judgment which the noble and learned Lord, Lord Morris of Borth-y-Gest, made; and it is with the establishment of these principles in mind that these Amendments have been put down.

Your Lordships will notice that they cover all except two of the offences in Schedule 1 that involve the risk of imprisonment. The first of those two concerns offences under the Post Office Act 1953, which cannot be dealt with by my Amendment since it would necessitate the Amendment of Clause 16(1) of the Bill, which has already passed through your Lordships' Committee. As to the other one, which concerns the Sexual Offences Act 1956, there is already an Amendment in connection with that seeking to establish the same principle as that which I have laid before your Lordships. That has already been tabled in the names of four noble Lords, and it is therefore not possible for me to move that as well, although, of course, I shall support it.

The Amendments numbered 83, 83A, 83B and 83C are there purely to ensure that, on the basis of my proposal being accepted, at any rate the amended sentences or the amended penalties shall stand part of the Bill in any event. I have no quarrel whatsoever with the increased penalties proposed by the Government for the various offences that are described. The only thing I object to, and upon which I invite the Committee to stand, is contained in the same proposal that I made before: that there is no case whatsoever for abandoning in this Bill the principle that a person accused of the particular offences which are listed in Schedule 1 should be entitled to elect for trial by jury.

I repeat that I do not want to pursue the argument again, but I am bound to assert it here and I am bound to point out to your Lordships that, when it leaves here, the Bill is going to another place; and I hope, once again, that your Lordships' House will show the other place that it is mindul of the liberties of the subject and that, in spite of the part that it plays as a reputed member of the establishment of the country, it is not going to be perpetually more executive-minded than the Executive. I beg to move.

7.40 p.m.


I will endeavour to be less executive than the Executive, if such be possible. My noble friend is labouring under a curious misapprehension in this series of Amendments because he is proposing to give a right which did not exist before this Bill came in. For example, if we take cases he has quoted: allowing persons under 16 to be in brothels; this was not triable at Crown Court except on application by the prosecution. The same applies to conduct conducive to breaches of the peace; and the same applies to the Representation of the People Act—offences in connection with service declarations—and so on. With the exception of the Road Traffic Act, my noble friend is not restoring something which this Bill takes away but is putting in something which neither this Bill nor previous law was aware of or thought necessary.

In view of this fact, I must recommend that we should resist this Amendment because the point at issue with which my noble friend is really concerned, I think, is the right of every man to have a jury trial if he is threatened with imprisonment. This is introducing a new factor. The effort of this Bill, and this Part of the Bill, is largely designed, following the James Report, to relieve cases in the Crown Courts and to move them, where it is considered fair, to magistrates' courts. This Amendment would be going further than anything the Bill has said to reverse the process. I do not believe that my noble friend really means to do that.

As the Bill stands the offences by their inclusion in Schedule 1 become triable only summarily, although there is a right of appeal—and this must never be forgotten—against conviction or sentence to the Crown Court where the case shall be reheard. As I have said, none of these offences with the exception of drinking and driving is triable by jury now unless the prosecution asks for trial at the Crown Court—which prosecutions do because they think the accused will get longer sentences and not because they think the man will get an easier or more just trial. I think this has gone back to front. I understand what my noble friend was after in his original speech, but I think he has gone off the line in this and it is not really what he means to do.

I could deal with the offences in detail and discuss the considerations which led in every case to the James Committee recommendations that they should be recategorised as purely summary. So far as most of the offences are concerned, it was in recognition not of the seriousness of the offence but of the fact that the maximum penalties available on indictment were within the range of summary maxima available to magistrates. This is a useful reflection of the seriousness with which the offences were viewed. I hope the Committee will not find it necessary to accept these Amendments. I think I need not say more about them. The situation is as stated, that the Amendments are trying to introduce a right which did not exist before. I do not believe that my noble friend meant that, but if he did I cannot support him.


I can only endorse from this side of the Committee what has just been said by the noble Lord, Lord Donaldson of Kingsbridge. I quite understand the attachment of the noble Lord, Lord Bruce of Donington, to trial by jury and I think that up to a very high degree I would go along with him in that attachment. What I do not think he has quite hoisted in is this. The purpose of the James Committee was to reduce the number of categories of triable offences from, I think, six to three. One of the categories was the cases like those to which the noble Lord, Lord Donaldson, has referred, in which the prosecution had the option of whether to prosecute for a summary offence (in which case the penalties were light) or to prosecute for an indictable offence in which case the penalties were relatively heavy. In the main, they chose the lighter option where the offence was slight or trivial; and the heavier option where they thought it a really serious offence or where serious questions of law were involved.

The purpose of Schedule 1 is largely to give effect to that. It is not so in the main—although this is not absolutely true. In the main, Schedule 1 is not concerned with the removal of the right to trial by jury but with the removal of the option of the prosecution to insist on indictment. This is what he has not hoisted in. The second point which he has not hoisted in—and which we must get clear about—is this. In the existing categorisation of offences as to which can be tried by jury, which can be tried summarily and which can be tried either way, even if you ignore the classifications to which I have referred, there is only an indirect relationship to whether there is a danger of imprisonment and only a tangential relationship to whether it affects your honour or not. I see my noble and learned friend Lord Morris of Borth-y-Gest in his place. I thought at one stage of his speech the other day he had not sufficiently taken that second point into account.

Broadly speaking, the situation is (apart from individual cases) that ever since 1879, which is quite a considerable period of time and a respectable degree of experience is involved in it, the test of whether an offence is hybrid in the sense in which the noble Lord, Lord Bruce of Donington, imagines it, is whether or not it carries a penalty, not of imprisonment but of three months' imprisonment. Imprisonment for under three months does not as a rule carry with it any right to trial by jury. Nor do I think it should. The reason why three months was chosen in 1879 is a peculiar one, intelligible only in the light of legal history. It was because magistrates then only had the right to imprison up to three months and nowadays the ordinary rights of magistrates go up to six months. But they did not alter the three months' limit at the time they altered the ordinary jurisdiction of magistrates. That is a curious piece of legal anomaly. None the less it is so. Magistrates have for more than 100 years dealt with cases in which, under three months, the penalty gave rise to short periods of imprisonment. The other point is that honour does not come into it, except to the extent that cases in which honour is involved tend to be those which carry a heavier penalty; but it is not always so.

Let me give one or two examples. The late Professor Joad was convicted of defrauding the railway company. He could not have chosen trial by jury. It did affect his honour because it was a fraudulent offence. It did affect his honour and in fact it affected his pocket for he was practically ruined for a period of months afterwards, because the BBC stopped employing him. His honour was involved but there was no right to trial by jury. If somebody asked me which would affect my honour more: if I was accused of stealing a book from a bookstore or of committing one of those disgusting little masturbating offences in a public lavatory, I would be quite sure I should rather be convicted of stealing a book. The first carries a right to trial by jury; the second does not. If somebody asked me which would affect my honour more, committing a small fraud or being particularly bestially cruel to an animal, I would say that the small fraud was far less dangerous to my reputation. But one does carry a right to trial by jury and the other does not. I do not think that you can deal with Schedule 1—and this brings me back to this complicated series of Amendments that we are now embarked upon—simply by, holus-bolus, putting back the old penalties, because it would have a number of very bizarre results.

In the first place, I could point, if I looked at the various Amendments which the noble Lord proposed to be discussed with this one, at a whole series of instances where he is putting back quite serious penalties of imprisonment which are being taken away by this Bill. This is not something we would want. I do not think that it can be handled in this way. We have to look at individual cases, I am afraid, and see whether a jury trial is an essential part of the administration of justice, and consider each on its merits from time to time. I could not support the Amendments in the form in which they are proposed for the reason that I have given.


I am indebted to my noble friend Lord Donaldson of Kingsbridge and the noble and learned Lord, Lord Hailsham of Saint Marylebone, for the illumination that they have thrown upon this subject. I had not fully apprehended, as the noble and learned Lord, Lord Hailsham, saw, the precise consequences of what I had proposed. Nevertheless, I am still constrained to stand upon the proposal that I originally made. The best course, in the circumstances, is to withdraw the series of Amendments—and by that I mean all of them—with the object of affording me time to consult with other legal colleagues who are far more capable and learned than myself, with a view to assisting me to produce further proposals at Report stage. I therefore ask the latitude of the Committee in this matter and beg leave to withdraw all the Amendments that I have listed.

Amendment, by leave, withdrawn.

7.52 p.m.

Lord GARDINER moved Amendment No. 70:

Page 38, leave out lines 32 to 38.

The noble and learned Lord said: This is a very short point. We are trying here, whatever the past, to arrive at some sensible decisions as to the cases in which a man or woman should be entitled to trial by jury and those in which they should not. This raises the question of male solicitation. A great many bodies, including The Times and the Law Society, have said in this case obviously there ought to be a right to trial by jury, and there are two arguments in favour of it. One is that if, as in the case of theft, as we have said, something gravely reflects on a man's moral character, he ought to have a right to trial by jury.

I agree with the noble and learned Lord, Lord Hailsham of Saint Marylebone, that if I had to be charged with either male solicitation or with stealing a book from a bookshop, I should prefer the latter. The first is one of the most unpleasant charges which can be made against a man. It has this further feature—which is not necessarily so in the case of theft—that the police (so long as England and Wales are the only part of Western Europe in which there is no independent prosecuting authority) are both prosecutors and witnesses. As one does not usually take witnesses in with one to a public lavatory, it is inevitably your word against that of plain clothes detectives, and there is so much mixed up with the prosecution that this seems an additional reason why in this case, at least, there should be a right to trial by jury. As the Law Society put it: This is an offence for which conviction can seriously damage reputation in much the same way as conviction for theft".

That is putting it in a nutshell. I beg to move.


It is not very often—and it is the first time I comment on it—that I have had my name to the same Amendment as the noble and learned Lord, Lord Gardiner. I support completely what he has said. It is impossible in this Bill to draw a line right through the offences, as it should be drawn, between those for which a man can go for trial and those for which he cannot. The fact that there will remain after this Bill is passed some offences only triable summarily, conviction for which will mean a serious and a permanent blot on a man's character and reputation, is no argument for adding to the number of those offences some for which a man can go on trial.

I agree with all that the noble and learned Lord has said regarding male solicitation. The test always ought to be: is the offence one which involves dishonesty and a tremendous reflection on a person's character, or of another kind which again involves serious reflection on a person's character? The object of these changes is fundamentally to relieve the circuit courts and Crown Courts of the burden of work. I cannot believe that the acceptance of this Amendment is going to make very much difference in the achievement of that object.


Under the Bill, the offence of solicitation by a man under Section 32 of the Sexual Offences Act 1956 is made triable only in the magistrates' court, with maximum penalties of three months' imprisonment or a fine of £200 or both. The Amendment seeks to remove it from the purely summary category and to make it triable either way, with a right to elect trial by jury. That is the issue before us.

Section 32 of the 1956 Act provides that: it is an offence for a man persistently to solicit or importune in a public place for immoral purposes". This is a hybrid offence at present and is punishable on summary conviction by up to six months' imprisonment or a fine of £100, and on conviction on indictment by up to two years' imprisonment or an unlimited fine. Although the maximum penalty on summary conviction at present exceeds three months' imprisonment, the effect of Section 25(1) of the Magistrates' Courts Act 1952, as amended by Section 9(1) of the Sexual Offences Act 1967, is that the offence carries a right to elect jury trial only where the immoral purpose is the commission of a homosexual act.

This raises a point of legal history. The noble and learned Lord raised one on a recent Amendment, and I just touch upon this because this offence (which originated in Section 1 of the Vagrancy Act 1898) has a rather curious history. Its purpose then was mainly to deal with men (known as bullies) touting on behalf of women prostitutes and these men had not, and still have not, the right to claim trial by jury for the offence triable summarily. This is, however, an obsolete aspect of the offence, which nowadays is in practice a homosexual one.

In paragraph 278 of their Working Paper, published in 1974, the Working Party on Vagrancy and Street Offences had little doubt that soliciting in public by homosexuals causes offence to the majority of people who have to witness it or who are themselves unwillingly accosted. The Working Party endorsed the Wolfenden Committee's view that this offence should stand, but thought that the present maximum penalty was too high. Their recommendation was that the offence should become a summary one with a reduced maximum penalty of £100 and/or three months' imprisonment; that is the same as the maximum penalty for female prostitutes soliciting in the street (and for the new offence they recommended of kerb-crawling). This Bill adopts these recommendations with a reduced penalty both for the offence under Section 32 and for street soliciting by female prostitutes; but with the increased fine of £200.

With the reduction in penalty the Working Party saw no reason why the homosexual importuner should be treated more favourably than the female importuner, to whom the right of trial by jury is not available. The James Committee, in paragraph 169, expressed agreement with the Working Party's proposal that it would be desirable to bring the penalty for the offence under Section 32 into line with penalties for related (heterosexual) offences, and further observed that if the maximum penalty was to be no more than three months' imprisonment, they saw no reason why the offence should be triable on indictment.

The choice here lies between, on the one hand, making the offence triable either way, with the accused having the right to elect trial by jury, but at the same time risking maximum penalties on summary conviction of six months' imprisonment and a fine of £1,000 or, on indictment, of two years' imprisonment and an unlimited fine and, on the other hand, making the offence triable only summarily, with no right of election, but with a severely curtailed maximum penalty of three months' imprisonment and/or a fine of £200. The Government's view is that, in the circumstances I have outlined, the second alternative is to be preferred. Although importuning for homosexual purposes occasionally can give rise to difficult problems of whose evidence to believe, it does not follow that it is particularly suitable for jury trial on that account, bearing in mind that the magistrates are as able to weigh the value of police evidence as a jury. Further, there is the important consideration that it is open to anyone convicted of the offence in a magistrates' court to appeal to the Crown Court, where there is a re-hearing of the case.

Accordingly, the Government take the view that the Bill as drafted is right. Certainly I will consider the matter before the next stage but without, I must emphasise, giving any indication that in our view at the moment it would be right to move in this matter.


I venture to support this Amendment, to which my name has become attached in error. I intended that it should be attached to Amendment No. 71, concerning the assault on the police, which I consider as raising even more important considerations.


It may still be able to be added to that Amendment.


I am grateful. I regard the offence of solicitation by a man as being of a nature which ought to entitle the defendant to claim right to trial by jury. I would ask the noble Lord, if I may, whether he could help me about the figures. I remember that the view of the James Committee was that if their report as a whole were adopted it would save about 8,000 cases a year being tried by the Crown Courts. From that number we now have to deduct some 2,000 as a result of the Amendment accepted by your Lordships last week. That means there will still be a very substantial saving on the Crown Court if the rest of the proposals of the James Committee are carried into force. Could the noble Lord tell me how many contested cases of male solicitation there are in the course of the average year?


I will gladly give that information. Of course, it is only fair to say—and I am quite sure the noble Lord, Lord Wigoder, will take this point—there are a substantial number of Amendments on the Marshalled List which, if carried, would change very substantially the saving of Crown Court cases which we hoped to achieve. In answer to the noble Lord's precise question, in 1975, 685 men were proceeded against for offences under Section 32, of whom only 59 (8.6 per cent.) were committed for trial. Of those tried summarily, 591 were found guilty; only six were sentenced to immediate imprisonment and two were committed to the Crown Court for sentence.


Could the noble Lord tell us how many of those were contested cases?


Not without notice, I am afraid.


Could the noble Lord say how many of those committed for trial elected to go for trial?


I will gladly find out the answer to that question and I will write to both the noble and learned Viscount and the noble Lord, Lord Wigoder.


Obviously I do not want to press this matter to a Division tonight but I still hope the Government will reconsider it before the next stage of the Bill. I should like to remind the Government that the Committee have already decided that the question of who ought to have a right to trial by jury is not to be dependent on whether you can be fined one sized sum or another sized sum, but on the effect on a man's character of a conviction of that sort. It was on that ground that they took the stand they did with regard to small thefts. Finally, I should like to quote from the conclusion of the leading article in The Times: By retaining the provisions in the Bill making drink and drive offences, criminal damage involving under £100 and some other minor categories, triable only by magistrates, while abandoning those provisions doing the same for petty thefts, male importuning and assaulting the police, the Crown Court would still be relieved of nearly half the estimated reduction of 8,000 cases which the reform was expected to achieve". I very much hope that before the next stage of the Bill the Government will reconsider that point. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


Before we go any further, I think the time has come to ask the noble Lord, Lord Harris, how long we are going to continue. I was given to understand it would be a matter of five hours from the commencement, which is about now. There will be a series of quite important discussions later. They will be reduced to something like a farce as soon as the Government party of the Prime Minister comes to an end, because there will not be enough people to vote on either side. Indeed, already there are not enough on my side. I have been sitting on this Bench, almost entirely unsupported, for five hours, conducting the entire thing from the point of view of the Opposition, and I am fed up at the moment and I want to stop!


If it would help the noble Lord, Lord Harris—because he may not be aware of it—many of the Amendments down in Schedule 3 in the names of my noble and learned friend and myself are in fact consequential.


I am much obliged. What I suggest—and I fully share the noble and learned Lord's feelings in the matter, having myself sat here with him for most of that time—is that we should conclude our deliberations on the Bill today after the next Amendment which my noble and learned friend Lord Gardiner is going to move. After that, it would be my intention to move the appropriate Motion.


I suggest that this is an Amendment of very considerable substance, having aroused widespread public interest. It might be thought that your Lordships' Chamber was not perhaps really representative at the moment and able to do justice to what I regard as an extremely important Amendment.


I am bound to say that I agree with the observations made by the noble Lord, Lord Wigoder. Although my own remarks were perhaps slightly frivolous, I feel personally that this Chamber would not be doing justice to itself or to the next Amendment; and if for any reason the noble Lord, Lord Wigoder, or the noble and learned Lord, Lord Gardiner, wanted to take it to a Division, I think we need to have a representative Chamber. I really do not think we should be able to do justice to the Amendment if we took it now.


If I may say so, I have every sympathy with the views expressed. My difficulty is that I have to go abroad on Thursday for ten days. I suppose our deliberations will be continued some day next week. At the same time, I appreciate the considerations which the noble and learned Lord, Lord Hailsham, has advanced. Others have already put their names down to this Amendment, and perhaps it would be the wish of the Committee that I should leave it in their hands and not press for it to be taken tonight.


If I may give my noble and learned friend an assurance, we shall certainly do our best to devil for him.


I am perfectly prepared to meet the wishes of the Committee on this matter, given the remarks which my noble and learned friend has just made. I therefore move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.