HL Deb 10 February 1977 vol 379 cc1302-89

4.25 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 DERWENT in the Chair.]

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

Viscount DILHORNE moved Amendment No. 71: Page 40, leave out lines 30 to 38.

The noble and learned Viscount said: We have spent the best part of an hour on business which was, in the course of the debate, described as of little significance. Debates on this Criminal Law Bill have considerable significance. Nevertheless, I think that perhaps we can conduct them at shorter length than the last debate, and I shall endeavour to do so, although on this first Amendment I feel obliged to speak for a little longer than I shall on the others for reasons I shall disclose.

Your Lordships will see that once again an unusual thing has happened. The noble and learned Lord, Lord Gardiner, and I, have our names down to the same Amendment. This should satisfy anyone that it is not an Amendment which is affected by any Party spirit, which I think affected our debate on the last occasion in one respect. The noble and learned Lord, Lord Gardiner, is unable to be present today, and I have told him that I shall do the best I can to put his case for him. But alas before he departed he did not tell me what his case was. However, I think the case for this Amendment can be put in two ways, and I shall try to put both of them. The first is—and I have had some communication suggesting that there is force in it—that where a man is charged with assault on a police officer, and the police officer is a police officer whose evidence has often been heard and accepted by a bench of magistrates, the man charged should be entitled, if he thinks fit, to ask for trial by a jury.

I am not suggesting in any way that there is any bias on the part of magistrates or any leaning towards the prosecution, but I think it cannot be denied, as I said in our recent debate, that it is only human that if you have once heard a witness give evidence and you believed him you are inclined to believe him again. However, there is the complication that at the moment there is no right to go for trial at the instance of the accused in this respect. This may be—and I am putting it forward in this light—one of the reasons for thinking that there should be a right of going for trial that led the noble and learned Lord, Lord Gardiner, to put his name down to this Amendment, but it is not the reason why I put my name down.

My reason is that surely in these days we ought to think at least twice before reducing the protection that the law gives to the police. Under the law as it now stands, on indictment someone who assaults the police is liable to imprisonment for two years, or to a fine of unlimited amount, or both. Under the change that is proposed the maximum will be six months' imprisonment, and a fine of £1,000, or both. Not many persons who assault policemen are likely to be able to pay a fine of £1,000. That is what is happening. I feel that there is considerable force in saying that where such charges are preferred it should still be possible to secure trial on indictment. I know full well that assault occasioning actual bodily harm is indictable and that if a policeman suffers harm as a result of an assault there can be trial on indictment, but circumstances may exist where the case, the assault, is of such gravity that although the officer does not suffer harm, it is right that there should be trial on indictment.

The figures given by the noble Lord, Lord Harris of Greenwich, in his Written Answer lend considerable support to that view, for if your Lordships look at those figures you will see that in 1975, 546 persons were committed for trial at the instance of the prosecution for this offence; 321 of those pleaded guilty on arraignment, leaving 225 to be tried before a jury. One does not know—one can only guess—the number of persons who would elect trial by jury, if they could, if charged with this offence, but in view of the large proportion of those charged who plead guilty, I should not have thought it was likely to be considerable.

It strikes me as odd that at this time we should make this change in the law, the down-grading of this offence, bearing in mind also that it is proposed in the Bill that assault on a policeman with intent to avoid arrest is left as an indictable offence. It seems odd that there should be this disparity. The purpose of this division of offences is, as the James Report indicates, to achieve greater simplicity in the law and relieve the burden on the superior courts. I doubt very much whether, if this Amendment is not carried, the burden on the superior courts will be materially affected in view of the figures which Lord Harris has given.

However that may be, I repeat that we should think twice before making a change of this nature. I may have missed it because I cannot claim to have read the whole of the report, but I have not found that this particular change is recommended by the James Report, paragraph 107 of which deals with offences against the person and says: There is little evidence to suggest, nor is it our experience, that the time of the Crown Court is being taken up to any significant extent by minor assaults that should properly be tried summarily.

Later it says: The evidence of two senior magistrates suggested that some assaults are being tried summarily which ought to be tried on indictment.

The figures which Lord Harris has kindly given us show that over 500 offences of this character were thought proper for trial by indictment in 1975. In these circumstances, I think there is a very strong case for the Amendment on the grounds I have put forward which, I hope, although I do not know, are the same grounds as Lord Gardiner would have put forward if he had been here.

4.33 p.m.


I wish to add my support for the Amendment. The position as I follow it is that, although the general law has been that if there was to be a sentence of three months or more there was a right to trial by jury, there was in the Magistrates' Courts Act 1952 an exception in the words: …unless the offence is an assault. The result of that was that in this particular instance the law has been a little out of line. The James Report says in paragraph 156: Assault on the police is another common hybrid offence which, by virtue of the exception in Section 25(1) of the Magistrates' Courts Act 1952 to the general provisions of that section, does not carry a right to elect trial by jury. A case came to your Lordships' House in 1967 in which the effect of the words in Section 25— …unless the offence is an assault were considered. The paragraph from which I was quoting goes on: There is a case for abolishing this offence altogether on the ground that the general assault offences would be adequate to deal with assaults on the police, the fact that the victim was a policeman being an aggravating feature which can properly be taken into account in considering the appropriate sentence. A little later it says: In our view, the present position whereby in effect the prosecution can choose to take the case on indictment but the defendant has no choice is indefensible. Where the case is contested there is often a straight conflict between the evidence of the defendant and that of the police. If there is such a conflict, it can be said that the prosecution has a special involvement in the case and that therefore it is particularly suitable for resolution by a jury. The James Report is therefore recommending the Amendment which my noble and learned friend has proposed. I should have thought that it commanded great support in many quarters and that it would be only fair that trial by jury should be available in these cases.


I will detain the House only briefly and I will certainly not tangle with the noble and learned Lords who are speaking to the Amendment. I find it deplorable that during the passage of the Bill in this House we have had on several occasions what I can only call a slight suggestion that magistrates are a different kettle of fish from judges. They are a different kettle of fish in one particular, in that they are not professionals and are unpaid, but I challenge strongly the suggestion of the noble and learned Viscount, Lord Dilhorne, that they are more liable to display any particular bias when dealing with a case.


I made it perfectly clear that I was not suggesting that magistrates were affected by bias at all. I said on a previous occasion that I have a high regard for the competence with which they perform their duties. I made no reflection whatever on the magistrates and I would not do so, but I said—and I regret that the penny did not drop—that if one, whoever it may be—judge, magistrate or jury—has heard the same witness on a number of occasions and has believed him each time, the chances are that one will believe him the next time, whereas a jury will not have heard that police officer once.


The noble and learned Viscount may say that is not a reference to bias, but he has repeated that if one hears a certain witness a number of times one will automatically believe him. That can constitute only one tiling: that one does not come to a conclusion, upon listening to the evidence, with an unclouded mind. I feel that it is important to appreciate that though of course the magistrates hear the same people on many occasions, they do not do so to the extent that the noble and learned Viscount is suggesting. The average magistrate—with the exception of the stipendiary magistrates; and they do not make up the majority of the magistrates—does not sit every day, and I believe that it is important to establish that the transfer of these various cases to the lower courts will not in any way prejudice the opportunities of the man who stands in the dock to get an absolutely fair trial of the highest character.

4.40 p.m.


Those of us who are supporting the Amendment are not in any way seeking to criticise the way in which magistrates deal with this or any other class of case. Indeed, I think that I am right in saying that the figures that were produced a week or so ago rather indicated that, for assaults on the police, magistrates acquitted in a rather higher proportion of cases than did juries. There is no complaint about the conduct of cases of this or any other nature in front of the magistrates, whether they be paid or justices of the peace.

The argument in favour of the Amendment—which also follows a recommendation of the James Committee—is that assault on the police is a serious offence and one which, very often and very properly, is dealt with, when it is proved, by a custodial sentence. It is an offence which, of its very nature, almost invariably results in evidence which consists of a direct clash. The policeman says that something has happened; the defendant almost invariably says: "No, it didn't. The policeman hit me first", or makes some defence of that nature.


I should like to make it clear that all cases of assault are serious offences. I only recently had counsel before me who took this line of argument. He said, "It was only an assault on a woman." This was rather foolish because there were two women on the bench. When I asked him to elaborate, he said, "It was not an assault on a policeman." So he made this subtle distinction. Surely, all cases of assault are serious offences.


Yes, indeed; and there is something to be said for saying that assault on a policeman should not be a separate class of offence, but should be dealt with as a particular type of assault in which a particular person happens to have been injured. The point that I wanted to make was that, where one has a situation where there is a serious offence—and there is almost invariably a direct conflict of evidence—if the trial takes place before the magistrates it is very possible that the defendant will go away with the feeling that some injustice has been done even though the magistrates have tried the case absolutely impeccably. The reason is partly that it may be that the magistrates know the police officers who are giving evidence—not socially, but are familiar with them and have met them on previous occasions in court. Clearly, it is difficult for a magistrate in those circumstances to make a finding that disbelieves the sworn evidence of someone who is regularly giving evidence in his court. That is a feeling that, rightly or wrongly, a defendant may have.

Secondly, there is the fact that very often a defendant on this charge is appearing in a court for the first time in his life and he feels that it is the State which is bringing this serious charge against him and, rightly or wrongly, that there is no independent tribunal to deal with the matter but only a bench of justices or a stipendiary magistrate who, in a way, represents the very authority upon whom he is alleged to have committed an assault. To add a third and, I think, rather complicated matter, it sometimes happens that defendants on this charge are coloured people and it is common experience that, where that happens and there is a conviction, it is extremely difficult to persuade a coloured defendant in particular that there has not been some bias or prejudice, even though we would all accept that that is extremely improbable.

For the reasons of the gravity of the offence and because it gives rise to feelings of injustice where there is a conviction recorded by magistrates—however properly the conviction may have taken place—I believe that there is a strong reason for saying that people should have the right to go for trial when faced with this charge. I would only add that the Criminal Law Revision Committee is at the moment considering whether the offence of assaulting a policeman should remain as a separate offence. While that consideration is being given, it is better to preserve the present position in which assaulting a policeman is a hybrid offence rather than to downgrade it into a purely summary offence as the Government now propose.

The other observation that I want to make is that I shall not be terribly surprised if, in a moment's time, the noble Lord, Lord Harris, indicates that some number—perhaps a fairly substantial number—of cases may find themselves at the Crown Court if this Amendment is carried. These would be cases which would otherwise not go to the Crown Court. May I say that I believe that all of us who have been taking part in this debate are very much aware of the fact that when we are debating the principles of the various Amendments we have to do so all the time against the background of the pressure of work on the Crown Courts and the comparative pressure on the magistrates' courts as well as the effect of any particular Amendment on that balance.

However, I find it difficult to see how the Government can at this stage suggest that the Amendment will increase the burden on the Crown Courts when they have, throughout the passage of the Bill, vigorously resisted the very Amendments that would have served to reduce the burden of the Crown Court. I have in mind particularly the Amendments dealing with the prosecution handing over its statements in the magistrates' court—a point to which we shall have to come back in due course—and the Amendments that deal with avoiding unnecessary Clause 1 committals. Had the Government indicated that they were prepared to accept Amendments of that nature and to reduce the pressure on the Crown Court, one would have been prepared to take their contentions on the present Amendment with rather more seriousness than at present one is prepared to accord them.


The noble Lord, Lord Wigoder, mentioned the case of a coloured defendant who might feel that his colour was a factor in the decision: would not this equally be so if he were tried by an all-white or predominantly white jury?


There is that possibility, of course. I think that one's experience nowadays is perhaps that there is a very reasonable possibility that where a jury of 12 people is sworn in—and where there are some seven peremptory challenges available to a defendant—there will be one, two or three coloured people on the jury. That will avoid the problem to that extent but, even where the problem is not avoided in that way, I cannot help thinking that there are some coloured defendants who would have—perhaps quite wrongly—more confidence in the verdict of a jury than in that of justices or a stipendiary magistrate who so obviously come from a different social class and background.

4.48 p.m.


May I begin by expressing agreement with the noble and learned Viscount on two propositions? One is that the issues in the Bill which we are discussing are matters of considerable significance. Certainly, I attach great importance to this one. Secondly, I agree even more strongly in hoping that the debate this evening will be less prolonged than that on the previous issue before the Committee.

Certainly, I recognise the concern that the noble Viscount, the noble and learned Lord, Lord Morris of Borth-y-Gest, and the noble Lord, Lord Wigoder, have expressed on this Amendment. I do so all the more because this is one of the few matters on which the Government have not accepted the recommendation of the James Committee. Nevertheless, I think that our decision to provide in the Bill that an assault on a constable should be a purely summary offence is right, and I shall seek to show why. First, I must emphasise, as did the noble and learned Viscount, that the Bill does not deprive any accused person of any right that he now possesses because an accused at present has no right to demand trial by jury for this offence. It is a hybrid offence; that is, the choice whether the accused should go to the Crown Court rests with the prosecutor and not with the accused. However, although in general any offence which carries a maximum sentence of more than three months' imprisonment automatically carries a right to claim trial by jury, this particular offence is an exception, because of a special provision in Section 25 of the Magistrates' Courts Act 1952.

Secondly, although it is true, as I have indicated, that the James Committee recommended that this offence should be triable either way, they recognised as an alternative the possibility of curtailing the maximum penalties. At present the maximum penalty on second conviction by a magistrates' court is nine months' imprisonment and the penalty on indictment is two years' imprisonment. These maximum penalties are reduced by the Bill to six months' imprisonment, or £1,000 fine, or both.

Thirdly, I turn to the question of the burden on the Crown Court. The noble Lord, Lord Wigoder, made a point with which I warmly agree; that was that I would be deploying the point that if this Amendment were carried it would inevitably increase the burden on the Crown Court. It would indeed. I do not want to go back over the ground which we covered at some length on the previous occasion, but I think, with great respect to the noble Lord, that he brushed aside the Government's argument a little too briskly. As he will recall, public expenditure of £4 million is not an unimportant matter, and that was the argument which I endeavoured to deploy before your Lordships on the last occasion. I think that it is an argument which deserves serious attention, particularly when in fact Members on all sides of the Chamber, not least some of the noble Lord's colleagues, perfectly rightly call for substantial controls over public expenditure.

The problem is this. If the Amendment were to be carried, it would, in our judgment, impose a substantial extra burden on the Crown Court. In 1975, there were 12,000 cases of this offence, of which 1,400 were committed for trial at the Crown Court, presumably at the behest of the prosecution, though the figures recently given in Answer to the Question by my noble friend Lord Gordon-Walker on 26th January indicated—it is important to emphasise this—that in only 546 of those cases actually tried at the Crown Court was this offence the principal offence. If there were a general right to claim trial by jury, it is inevitable that a substantially greater number of cases would then go for trial to the Crown Court, adding to the very substantial burden with which the Crown Courts are already confronted. We cannot of course put any definite figure on this, but the James Committee thought that it might be fairly considerable. As I have indicated, the consequences of this to Crown Court business could be serious. It would mean that any relief to the Crown Court which might be obtained by transfer of drinking and driving offences to the summary category would be almost cancelled out, and that at the end of the day we would find that we had not given as much relief as we want to give to the Crown Court at all, and that, after all, is one of the purposes of this clause of the Bill. My noble and learned friend the Lord Chancellor had already indicated at an earlier stage of the Bill what the consequences of this would be.

The argument on which the James Committee mainly relied was stated in the following terms in the Committee's report: Where the case is contested, there is often a straight conflict between the evidence of the defendant and that of the police; if there is such a conflict it could be said that the prosecution has a special involvement in the case and that therefore it is particularly suitable for resolution by a jury". That was the position of the James Committee. Although inevitably this argument may seem persuasive at first sight, it is rather less so when examined in detail. There is no reason for saying that a jury is a better tribunal for establishing the truth than is a bench of lay magistrates, as my noble friend Lady Phillips has just said. Moreover, the James Committee did not have the benefit of the statistics which were quoted in the reply which I gave in the House to my noble friend Lord Gordon-Walker, which demonstrated that, contrary to what is often asserted, magistrates are not more prosecution-minded than are juries in relation to this particular offence. The Committee will recall that the figures show that the magistrates acquitted 27 per cent. of those pleading not guilty to this offence, whereas of the cases which were tried in the Crown Court, the jury acquitted 20 per cent. of those pleading not guilty. Hence the chances of acquittal by either tribunal seem to be roughly equal, though the balance slightly favours the magistrates' court.

The noble Lord, Lord Wigoder, was troubled by the fact that a bench of magistrates might have some form of social contact with a policeman who was giving evidence. They might know him socially in some way, and therefore it might be assumed that they were in some form prejudiced. But I say to him that the figures do not demonstrate this at all. I repeat that if one is to make a judgment about whether to take one's trial at a magistrates' court or at a Crown Court, the figures indicate a slight preference, it would seem to me, so far as the accused is concerned, for the magistrates' court. But the noble and learned Viscount, Lord Dilhorne, referred to a further argument; namely, that this would be a serious matter because the police would be deprived of some protection which they already have. This could well be a powerful argument, but on this point I should say that this is not the view of the police themselves. The Police Federation specifically recommended——


The noble Lord referred to the Police Federation; were the chief constables also united in support of it?


I am coming to that. The noble and learned Viscount has anticipated the point. He will be glad to know that it is a very satisfactory answer that I am about to give. The Police Federation was consulted on this matter, and it indicated that the offence should be classed as summary and should be triable only in magistrates' courts, and the Association of Chief Police Officers was on balance also in favour of the offence being a summary one, carrying the new maximum penalty provided for in the Bill. The Association's reasons for this conclusion were that if the assault were of a serious character, a different charge of grievous bodily harm, or assault occasioning actual bodily harm, could be brought according to the gravity of the injuries which had been inflicted. These arguments seem to us to be fairly persuasive.

The Government have certainly given careful thought to the views expressed about this matter by the noble Lords during the debate on Second Reading, and I have of course listened carefully to the arguments deployed this afternoon. Nevertheless, I remain of the view that the offence of assault on the police should be placed in the purely summary category. We do not think that the issues involved are unsuitable for magistrates to resolve. They are well accustomed to conflicts of evidence, and the circumstances are not usually such as to require the special guidance which only a Crown Court judge may give. Although these offences are very numerous, they are not necessarily in all circumstances serious, and where they are, a more serious offence can be charged. The police support the offence being made purely summary, as I have indicated to the noble and learned Viscount, and although I agree at once that their views should not necessarily be decisive, it is only right that they should be taken into account, as they are inevitably the people at the receiving end of this. It seems to me that the case for proceeding as the Government have recommended is a fairly strong one, and I see no reason whatever to change our position on this matter.

4.59 p.m.


I have listened with considerable care to what the noble Lord, Lord Harris of Greenwich, has said, and, for what it is worth, he certainly convinced me. So far as this offence is concerned, as he pointed out, it has never until now been an offence for which the defendant has been in a position to claim trial by jury, and certainly I am not aware that there has ever been a great move to reform the law to bring that about. So one has perhaps to look at this offence as it stands, and devoid of the emotionalism with which sometimes we have in these debates been looking at this type of offence, and ask whether it should be made the subject of a trial by jury at all.

Certainly, in my experience, assaults on the police are nearly always tacked on to some other offence, most frequently a driving offence when an irate motorist is pulled up by the police and then, if I may use the expression, "socks him one". Then there are also cases where the police intervene in matrimonial disputes and are the subject of violence. There are, then, the now happily rare offences, perhaps, of knocking off helmets on Boat Race night. Taking the point of the noble and learned Viscount, Lord Dilhorne, and looking at the proposed maxima of penalties, I must say I find it difficult to visualise a situation where the maximum penalties as set out on page 40 will not be sufficient in the absence of some injury to the police officer. One can imagine that, by behaviour on the part of the defendant, there might certainly be a sense of outrage, but certainly not such a sense of outrage that he would deserve more than is set out.

On the question of summary procedure or trial on indictment, I think, perhaps, the less said the better. I always found—and I am sure the position still obtains—that magistrates' courts were well able to try this sort of case. There really is not any difference between a police officer and any other witness. Frequently, police officers come into court in plain clothes, and they might just as well be one motorist giving evidence against another motorist. One takes the point that in certain circumstances the defendant may feel aggrieved, but defendants always feel aggrieved about something—sometimes, dare one say, about the inadequacies of their own representatives.


Is the noble Earl aware that they nearly always feel more aggrieved when they leave the court than they did when they arrived at it in this type of case of personal conflict? Secondly, does it not occur to him—and I know he has had recent experience—that one of the things we are dealing with is a charge which can be tacked on to another? We have been told that it usually is allied to another when a police officer finds that he has brought one charge which he cannot sustain and may be tempted to add another which is not true but which he is in a position to sustain because he can charge an assault which occurred at a time when there was no other witness available to give evidence.


I hope the noble Lord is not imputing that any of my clients ever felt aggrieved as a result of my effort, because I would be very hurt at that. Again, if I may say so, the noble Lord is somehow hinting that the standard or quality of justice in the magistrates' courts is inferior to that which obtains in the Crown Court. If that is his suggestion, I refute it; and I am sure he would not really make that allegation. If I may say so, this is the sort of case where, really, if one looks at it perhaps a little more coldly than we tend to on these occasions, for myself, at any rate, I think the proposals of the Government are quite reasonable.


We have had a considerable debate on this question, and I have no doubt that we——


I think the noble Lord, Lord Gifford, is endeavouring to address your Lordships' Committee. I do not want to interrupt my noble and learned friend, but I do not think he noticed that fact.


I am very much obliged to your Lordships. I came a little late from other engagements, and I am anxious to take part in this debate and to support the Amendment on a slightly different basis and one which, I suggest, is a more powerful basis than that put forward by the noble Lord, Lord Wigoder. It is not just a question of giving the public greater confidence that justice is being done; it is not just a question of allowing defendants and other persons to see that justice is being done; it is a question of justice being done—and, contrary to what has been said by some noble Lords, there is no doubt in my mind, having seen many benches and stipendiary magistrates at work, that on this kind of offence in particular the quality of justice administered, certainly in the courts of the metropolis, is very much inferior to that administered by juries. The noble Baroness, Lady Phillips, sees justice done only in her court. I have never been in it, but I am sure it is admirable. She does not see justice being administered in a number of other courts—and some of them are notorious.


I think that, for the information of the noble Lord, I should indicate that I sit at three Central London magistrates' courts, and I deplore the line of argument which is being adopted here. I think that the noble Lords concerned, who are mainly of the legal profession, should be able to deploy much more powerful arguments than to constantly reiterate this one, which certainly would need some substantiation. The noble Lord has just said, "in many, many cases". I would need a good deal of evidence of a very strong character before I dealt with that kind of statement if it came before me.


Both the noble Baroness and I can speak in your Lordships' House or Committee only on the basis of the experience we have, re-telling it as faithfully as we can; and I can only say that on this charge of assault against the police, probably more than on any other, I have personally been convinced, so far as one can be convinced, that on a great number of occasions—and far too many to be comfortable—injustice has been done. It is almost always a question of a policeman's notebook against a person's recollection: a policeman's notebook, written up in collaboration with another policeman, as is permitted, some hours after the event in question; a notebook in which both police officers purport to recollect with astonishing precision precisely what happened in an instant of time.

In my experience there are a great number of magistrates' courts for whom a policeman's notebook cannot lie; or, if it lies, it must be proved to have lied. There are many courts where, not merely the untrained client or lay observer but the advocate has the impression that he has to prove the innocence of his client against a case put up in a notebook that such-and-such a particular train of events happened. When one comes to a jury, there is very much more chance of the persons trying the case being able to assess the accuracy, the veracity and the honesty of these witnesses by judging the sort of people they are and the way they give their evidence, and of their being less blinded, perhaps, than some magistrates' courts are, by the uniform. Therefore I say that there is substantial injustice, there is substantial cause for concern, and this is an offence which therefore needs to be tried by jury.

There is another aspect of it. It is not just the casual brush, the assault which does no injury, the occasional contact, which comes before magistrates' courts on this charge. In fact, the mild assault, the technical assault, the push, normally gets charged as an obstruction. What gets charged as an assault is usually something serious and usually something occasioning actual bodily harm. Only last week, in an appeal from a magistrates' court, I had to deal with the case of a policeman who had weals on his shoulders from an alleged assault—weals several inches long—and yet the defendant had been charged in the magistrates' court only with assault on the police.

Magistrates commonly (and, in view of the severity of the offence, often rightly) impose immediate sentences of imprisonment upon people of good character for offences which ought to be charged as assaults occasioning actual or even grievous bodily harm; and I wonder if my noble friend who represents the Home Office can say whether, in the light of assaults on the police being made a summary offence, there is going to be any new policy that an assault which does in fact cause an injury will be charged before a jury or charged under Section 47 of the Offences against the Person Act as an assault occasioning actual bodily harm, thereby giving the right to trial by jury. It is my experience that a lot of forces limit their charge to an assault against the police for the particular reason of denying the defendant the right to go to trial by jury.

There is one other matter that arises from this Amendment and it is one which I hope my noble friend Lord Harris can deal with. As has been mentioned, in a great number of cases defendants are charged with another offence—theft, driving, damage or what-you-will—and assault on the police. The assault is often alleged to have occurred at the moment of arrest. At the moment, if the offence for which a person is arrested is triable by jury and he so elects, the assault charge also goes before the jury. Under this Bill as I understand it, if someone is charged with, say, theft and assault on the police and wishes to take the theft charge to a jury, only the theft charge will go to the jury. Presumably, the assault charge will be dealt with at another trial before a bench of magistrates. That seems to be unsatisfactory. The number of occasions where there is a linked charge of assault on the police and another charge triable by jury are very many; and the defendant will have to go through two trials with perhaps different results. I do not see that that is right.


The noble Lord, Lord Gifford, has raised two interesting points neither of which arise under this Amendment. If this Amendment is carried, it does not give any right of election. The joining of offences for trial together or separately does not arise on this Amendment. With regard to the latter point we might—and ought to—have a useful discussion later to see how this procedure will work. But I do not think it need be done on this occasion.

I had hoped when I moved the Amendment that it would not take too long and that is why I intervene now. I had hoped that I had made it clear at the beginning that I was seeking to put forward every argument that could be put forward in support of it. I am sorry that in doing so I incurred the wrath of that valiant defender of the magistracy, Lady Phillips. The last thing that I wished to do—and I do not think I have ever done it—was to attack the competence and fairness of magistrates. They do their very best. Of that, I have no doubt—and they are nearly always right. But it is a long time since I practised in the magistrates' court. I think it is something like 40 years ago since I last did so.

In those days—and the noble and learned Lord, Lord Hailsham, would probably express the same opinion—I would have no hesitation in advising a client whom I thought had a chance of acquittal—perhaps not a very good chance—to go for trial rather than to be tried by the magistrates. It may be that I was quite wrong or that if I gave that advice today I would be quite wrong. But Lord Gifford's speech indicated that, despite the statistics produced by the noble Lord, Lord Harris, there are some at least who think that there is still force in that view. We could discuss that backwards and forwards and at considerable length and I do not think that we should ever come to an agreement on it despite what the noble Baroness, Lady Phillips, would say and however much she would lecture us because she might think there was an implied attack on the magistracy.

That was not the reason why I myself put forward this Amendment. I put it forward because I was doubtful about the wisdom of lowering protection for the police at the present time. That was my ground. The noble Lord, Lord Harris, has satisfied me that it is the view of the police that this particular offence can be reduced to a triable offence. I am not sure that it would not be wiser to leave out this provision pending the report of the Criminal Law Revision Committee. That depends very much upon time factors of which I am unaware. So far as I am concerned, the noble Lord has satisfied me that my fears were not warranted. I cannot speak for the noble and learned Lord, Lord Gardiner, on whether, when he reads this debate, he will be satisfied that I have put the case that he might have put correctly or adequately. Although he may wish to come back to it at a later stage, for myself I would ask the leave of the Committee to withdraw the Amendment.


Is it your Lordship's wish that the Amendment be withdrawn? Amendment, by leave——


No. Why can I not get in?


I do not want to intervene but I think that there was one Member of the Committee who did not agree. If that is so, I understand that under our Rules of Order, the Question must be put.


That is right. I had thought that the intervention was made after the Amendment was withdrawn.


I only wanted to say one word. I did not seem to be able to do so. I wanted to say that I profoundly disagreed with my own Front Bench. That is nothing unusual for me. I have done that throughout the years and I want to do it now. It is not for any particular reason or owing to what they said, but it struck me during the discussion—and I was in favour of the Amendment—that the Government case seems to rest entirely on what they consider (which they are entitled to do) is the issue concerning the Crown Courts. They went on talking about the Crown Courts and what the Crown Courts wanted and what the difficulties of the Crown Courts were. I do not see that justice depends entirely upon the Crown Courts. If we have Crown Courts with too much to do, then we ought to have done something about it before. I do not see why I could not get up and say that I disagreed with my Front Bench who again were talking about Crown Courts. I was much more interested in justice for the police.

If the Committee does not want to divide, so well and good. I have been a magistrate for many years and it does not worry me what anybody thinks about magistrates. I always think that magistrates try to do their duty. I try to do my duty. I do not think we want to argue about whether magistrates are good administrators or not. It horrified me that the whole of the case seemed to be on the fact that the Crown Courts are getting overloaded. I know something has to be done, but I would be better pleased with the argument if the noble Lord, Lord Harris, speaking for the Government, and my own side who appeared to agree with him—although I did not—could have found some way of dealing with the problem of the overwork in the Crown Courts. It took us in my part of the world—I cannot say exactly how long—almost years to find even a place in which we could hold a Crown Court.

I wanted to say that and my only way of doing so, apparently, was to say "No" when the suggestion was made that the Amendment be withdrawn. Now I have said it—and I will go on saying what I want to say. I do not expect many people to agree with me. They often do not. But it horrifies me when the real difficulty is the Crown Courts and nobody has seemed to argue on the case for the police.

Amendment, by leave, withdrawn.

On Question, Whether Schedule 1 shall be agreed to?


I do not know whether my noble friend will be able to indicate whether the Government have given any thought to linked offences. Will consideration be given to allowing some of these offences to be triable either way in the case of offences charged with them being elected and going for trial in the Crown Court?


I took note of my noble friend's question and also of what the noble and learned Viscount, Lord Dilhorne, said. I will gladly write to my noble friend before the next stage.

Schedule 1 agreed to.

Schedule 2 [Offences triable either way instead of only on indictment]:

5.22 p.m.

Lord MORRIS of BORTH-Y-GEST moved Amendment No. 73; Page 43, leave out line 22.

The noble and learned Lord said: This is a matter which can be dealt with with considerable brevity. It is proposed that the offence of bigamy should be put into the class of offences triable either way. I will submit to your Lordships that that is not a good plan for two reasons. My first reason is that to make this change will not advance the aim that many of us have in mind and wish to further: the aim and purpose of relieving the work of the Crown Courts. The noble Baroness, Lady Phillips, is not in her place at the moment; but may I say that so far as I am concerned my main approach to this Bill is to support taking work away from the Crown Court and to ask the noble Baroness, Lady Phillips, and her colleagues, to accept more work. Nothing that I have said has at any time involved any criticism of the work of justices. I will therefore submit that it is not a good idea to make this change first, as I have indicated, for the reason that this will not materially advance the aim that is in mind—namely, the aim of relieving the Crown Courts—and secondly, apart altogether from that, this proposed change is one that, from the public point of view, is undesirable.

May I remind the Committee in regard to the offence of bigamy that until fairly recent years that was an offence that always went to what we used to call the assizes. It was always an offence that came before a High Court Judge, the "red Judge". Why was this? It was because it has always been regarded as an offence of gravity. Then some years ago there was a committee under the chairmanship of Mr. Justice Streatfeild. They produced, if I may respectfully say so, a most valuable report. The noble Baroness, Lady Wootton of Abinger, was a member of that committee.

As a result of that report the offence of bigamy became triable at quarter sessions. I do not think that the change made has been criticised as being an undesirable one. We know that in the offence of bigamy often difficult legal questions are involved. Some cases may involve questions of law as to the validity of the first marriage; questions as to whether that first marriage was subsisting; questions as to the availability of a defence based on a period of seven years' continuous absence. The offence is still regarded as one of gravity, for the maximum punishment for the offence is seven years' imprisonment.

As I understand it, the number of prosecutions for bigamy in these days is very small indeed. Why that is so I do not know and it does not matter. It may well be that it is as a result of the changes that have been made in our divorce laws, and the dissolution of marriages has been greatly facilitated. Some figures are given in the James Report on offences of bigamy. On page 53 of the Report, at paragraph 118, it is said that in 1959 there were 89 cases. In 1974 there were 27 persons sent for trial for this offence. It may be that noble Lords on the Front Bench will have more recent figures, but that is a surprisingly small number.

Supposing all those 27 were in the category of being triable either way? What would then happen? Each case would come before the magistrates and the magistrates would apply themselves to Clause 20 of the present Bill. They would have to consider the appropriate mode of trial. In so considering it, they would have to have regard to the following matters. I quote from Clause 20 (2): The matters to which the court is to have regard under subsection (1) above are the nature of the case; whether the circumstances make the offence one of serious character; whether the punishment which a magistrates' court would have power to inflict for it would be adequate; and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other. I suggest that it might be an embarrassment to magistrates to have to consider these cases. They would have had little or no experience as benches of magistrates as to what view to form in regard to bigamy cases. They could clearly identify the cases where substantial points of law of the nature to which I have referred would arise. They would at once say that those cases must go to the Crown Court.

But what about the remainder? Is this not too great a burden to put on magistrates who, in the nature of things, do not have to deal with these cases? How are they to form a view as to whether one case is more serious than another? What experience have they to draw upon? It may be said that if there are only 27 cases in a year do circuit judges and recorders have much experience? At least they have rather more experience than magistrates, and at least they would have heard of other cases and known how other cases had been dealt with.

The James Report tells us the result of some of the 27 cases. They say that of the 27, seven received sentences of immediate imprisonment. A further eight received suspended sentences; so that is 15 out of the 27. It may be a reasonable assumption that out of the 27 the magistrates would have thought that 15 must go straight away to the Crown Court; but what about the others? Is it not very difficult for magistrates to decide? May the result not be in the aggregate more total time will have been taken up if the magistrates have to approach each one of these cases, consider the facts, consider the gravity and consider what they think would be appropriate punishment?

One remembers that in most cases of bigamy the plea is one of "guilty". If the plea is "not guilty", magistrates would certainly send the case to the Crown Court. But if the plea is one of "guilty" there are many very difficult questions to be decided as to the appropriate course to follow. May not more time, in the aggregate, be taken if these cases go to the magistrates' courts than if the cases—so few in number—remained as cases to be dealt with on indictment? Under the new procedure now available, they would then go straight to the Crown Court after being before the magistrates, with the minimum of magistrates' time being taken in drawing depositions.

I submit that in the aggregate there probably would be a great saving of time if the present practice is adhered to rather than that in the first place each of these 27 cases has to be investigated by magistrates. I would therefore suggest that this proposal to put bigamy in this class is not advancing the dominant purpose of this part of the Bill—a purpose which so many of us are supporting—because the major part of the James Report we support.

That is my first reason. My second and last reason is this: What of the feeling of the public? Do the public regard bigamy still as a serious offence or as one which must be considered to be a serious offence? I would suggest that the public do so regard it, and ought so to regard it. I think the public might be rather shocked. If they thought, some years ago, that it was right to allow these cases to go to quarter sessions they may now ask: Ought we to go any further? Ought this offence, so to speak, to be down-graded? Will not the public think, as I suggest they will, that it is really contrary to the fitness of things to include this offence in the group in which it is now proposed to place it?

For those reasons, I hope that the Government may feel they can accept this Amendment. It would do no damage whatsoever to the purpose of the Bill, but in the public mind there would be retained a serious view of the nature of this offence.

5.33 p.m.


I should like to begin by making one or two general remarks about Schedule 2 to the Bill; it might save time in the long run. There are a number of offences which, following the James Committee, this Bill puts into the "either way" class. Noble Lords opposite and on the Cross-Benches have selected five, because they are the only five which they think should be moved. The five are really in three different categories——


I hope we are not going to discuss the five together.


I am not suggesting that we should discuss the five together and, if the noble and learned Viscount prefers that I should not make these general remarks, I——


It might save time if we omitted them; that is what I was thinking.


That is something which I accept with as good a grace as I can. The recommendation of the James Committee was that this offence should be triable either way, because although it carries a maximum penalty on conviction of seven years' imprisonment, it has, in the words of the Committee, become less seriously regarded than it was ". That view appears to be borne out both by the considerable drop in the number of persons prosecuted and by the relatively light sentences imposed in most cases. The noble and learned Lord asked whether I had further figures to give. I have one further set of figures: in 1975 there were 18 cases, compared with 27 in 1974. Of those, only seven were given sentences of immediate imprisonment and six were given suspended prison sentences. It does not appear that the offence remains one which must invariably be tried in the Crown Court. That is the point. If, exceptionally, difficult or complex questions of law were to arise in a particular case which might make that case unsuitable for summary trial, the accused would in any case have the right to elect for jury trial, as the noble and learned Lord has pointed out.

In the past, bigamy has been regarded as a very serious offence, and conviction carried a considerable stigma because of the social consequences of the crime; but things are very different today, as I think the noble and learned Lord admitted. Up to 1962, the offence was triable only at assizes. It was made triable at quarter sessions by Section 12 of the Criminal Justice Administration Act 1962, following the recommendation in 1961 of the Streatfeild Committee on the Business of the Criminal Courts, which recognised that the particular instances of the offence can vary very widely.

The James Committee took that recommendation a stage further by recommending that the offence should be triable either way, and they commented that many witnesses to the Committee had suggested the change. In accepting that recommendation, the Government believe that it represents a recognition of a further relaxation in public attitudes towards the offence, and therefore consider that the time has now come when it may properly be made triable either way. As the noble and learned Lord pointed out, this is not an aspect of the Government's wish to move cases from one place to another: there are too few cases for that to be relevant. It seems to the Government, as it seemed to the James Committee, that the level of seriousness of this type of case has declined sufficiently in the public view to make it reasonable that the alternative should be available to the defendant.

I do not think there is more to say about this. It is not a case of crucial importance. In the Government's view, it is an improvement on the present system. If the noble and learned Lord would be content not to press the Amendment, my noble friend could think about the matter again.


I must say frankly to the noble Lord, Lord Donaldson, that I am rather on the side of the noble and learned Lord, Lord Morris, about this—and for one reason which I do not think has been mentioned, although it was touched on by the noble and learned Lord. By far the most difficult thing a criminal court has to do, curiously enough, is not to decide, in 19 cases out of 20, whether the accused person is guilty, but to sentence him. That, in fact, is the most complex and difficult task they have to perform.

I do not claim to have a very wide experience of bigamy, but in the course of 50 years I have heard a number of cases in which bigamy was involved and I would make this proposition for consideration by the Government: it is one of the most difficult cases in which to sentence anybody. You have the interest of the maintenance of public justice, with all the implications as to property rights and inheritance which may evolve from an invalid marriage; and you have the question as to whether and to what extent there was an innocent party to the bigamy and, if so, how far deceived and how far the promise of marriage was held out as an excuse for sexual intercourse, and so on. It is a very difficult crime to assess for the purposes of sentence.

I am bound to tell the noble Lord that I absolutely agree that the attitude towards it has changed in the last 25 years, in my knowledge. Nowadays the offence is not always treated very seriously, and it ought not always to be treated very seriously. But I believe that what it requires, in the vast majority of cases, is an experienced judge who really knows, who has some background upon which he can assess the proper penalty. I want to emphasise again that I am not attacking magistrates. I am a tremendous enthusiast for magistrates in 98 per cent. of the cases. But this is one of the cases where I do not think a bench of lay magistrates would know whether they were sitting on their heads or their heels.


The noble Baroness, Lady Phillips, arrived just a fraction too late to hear a denial of another attack upon magistrates. I should like to support what the noble and learned Lord, Lord Hailsham, has said. I do not think that the right test in determining whether a case should go into this Schedule to the Bill is how public opinion regards it. It may be true—I do not know—that, publicly, bigamy is viewed less seriously than it was, but I do not think that that should be the right test or that very much regard should be had to it. Nor do I think that the only consideration is the number of sentences of imprisonment that are passed. Both those things seem to have been the concern of the James Committee, when one reads their report.

I welcome the statement that the Government will consider this again, because it must be recognised that this proposal in the Bill devalues the offence, an offence which I must say—whatever the noble and learned Lord, Lord Hailsham, may think—I should always regard as a serious offence. It may have very serious consequences indeed for its women victims. Of course, the degree of seriousness alters. The difficulty of sentence will nearly always exist. I stress very strongly the desirability of second thoughts about this proposal, when leaving 27 more cases, some of which may well prove to be pleas of guilty, to be tried by the Crown Courts cannot make any material difference to the burden on those Courts.


May I ask the noble Lord, Lord Donaldson, one question? Am I right in thinking that bigamy is one of the comparatively small class of cases in which the Director of Public Prosecutions exercises a very wide discretion as to whether or not to prosecute? Am I right in thinking that if there are mitigating circumstances he does not prosecute, and that therefore the cases in which there are proceedings brought are almost certainly likely to be offences of some gravity?


Subject to checking, I think that is right.


I am grateful to noble Lords who have spoken on this Amendment, and I wholeheartedly agree with everything that was said by the noble and learned Lord, Lord Hailsham, and by the noble and learned Viscount, Lord Dilhorne. I feel that the Government might well, after reflection, give way on this matter; that it does not interfere at all with their plan of campaign, and that in the public interest it is desirable that this offence should still be regarded as an offence of gravity.


May I interrupt the noble and learned Lord? I have promised reflection.


Yes. I was saying that I recognise that, I acknowledge it and I am grateful for it. Because of what the noble Lord has said, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.44 p.m.

Lord MORRIS of BORTH-Y-GEST moved Amendment No. 75: Page 44, line 23, leave out paragraph 19.

The noble and learned Lord said: This, again, is a matter that need take up your Lordships' time for only a very short period. This relates to the offence of complicity in suicide. I do not know whether the Government feel disposed at this stage to accept this Amendment; if so, I need not speak more fully to it. Short of that, may I in a sentence or two indicate why I submit that it is undesirable to have this offence included in the category in the Bill?

We are dealing with the offence of aiding, abetting, counselling or procuring the suicide of another, or with an attempt by another person to commit suicide. May I remind your Lordships as to the serious way in which the law has regarded suicide? The former law was that suicide was self-murder and it was popularly so called, felo de se, and until fairly recently inciting another to commit suicide in a case where that other person did, in fact, commit suicide made the inciter guilty of murder. One remembers those pathetic cases some years ago, when two persons agreed to commit suicide together and attempted to do so. One succeeded and the other did not, but the one who did not commit suicide, the survivor, was guilty of murder.

That was all changed in 1961 by the Suicide Act of that year, and that Act provided that the rule whereby it was a crime for a person to commit suicide was abrogated. But there is still this very serious offence which could involve punishment up to 14 years; that is to say, in the case of somebody who aids, abets, counsels or procures the suicide of another and so on. When that Act was passed, there was a provision in it that the offence should not be triable in quarter sessions. There was also provision that no proceedings should be instituted, except by or with the consent of the Director of Public Prosecutions. But in 1967 there was a change, which eliminated the provision that the offence was not to be triable in a court of quarter sessions, but the consent of the Director is still needed.

How is this matter dealt with in the James Report? I refer to page 60, paragraph 132, under the heading, "Other indictable offences", which states: There are a number of other offences which at present are triable only on indictment, but for which the intermediate category would seem more appropriate, although the effect on the distribution of criminal business would be negligible since proceedings are very rarely brought in respect of them.

Then there is a long catalogue of offences, one of them being aiding or abetting suicide. Are we then dealing with a provision the effect of which would be negligible; and if the effect is negligible is it really desirable to make it, again having regard to the fact that the charge will be preferred only with the consent of the Director of Public Prosecutions? Would magistrates, if they had such a case, not be likely to say, "The Director has given his consent. This had better go for trial"? Is there really any reason to include this? The effect is minimal—"negligible" in the words of the James Report—and would it not be better and more desirable in the public interest not to say that complicity in suicide is to be dealt with in the way proposed? I beg to move.

5.49 p.m.


The case is such a marginal one, in the Government's opinion, that I am not going to produce an argument. I will simply say that, while the Criminal Law Revision Committee did not discuss the mode of trial of this offence in their report, their recognition that the circumstances in which it is committed vary greatly lends support to the James Committee's recommendation that it should be made triable either way. I believe that this is the only argument. In view of the fact that there were only two cases in 1975—one was acquitted and the other was found guilty—and in view of the weight that the Government always give to views of the noble and learned Lords, I feel quite sure that my noble friend will be happy to discuss the matter further. Therefore I do not think that an extended argument this evening will help us very much.


May I add to that what I said in relation to the last offence. What I am afraid of both in the case of bigamy and in this case is that, in the nature of things, a bench of magistrates has not had much experience of sentencing. In a very great number of these cases you do not send people to prison. I am afraid of an inexperienced bench of magistrates sending people to prison when they ought not to do so. It is not that I want the case to be treated more seriously than it is, but that I am concerned that the sentencing court should be a court of experience and able to distinguish the serious from the venial.


I am very grateful to the noble and learned Lord, Lord Hailsham of Saint Marylebone, for what he has said. Again I agree entirely with him. Also I thank the noble Lord, Lord Donaldson of Kings-bridge, for what he said, and in view of that I ask for leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.53 p.m.

Viscount DILHORNE moved Amendment No. 76: Page 44, line 35, leave out paragraph 22.

The noble and learned Viscount said: This is an Amendment to leave out paragraph 22 on page 44 of the Bill, which purports to make burglary in a dwelling where entry has been effected by force or deception, or by the use of any tool, key or appliance, or where any person in the dwelling was subjected to violence or the threat of violence

triable summarily. I cannot claim that this may not affect a considerable number of offences, nor can I claim that it is not a recommendation of the James Committee. However, I hope that the Government will look again at this point. The offence of burglary is extremely prevalent at present. I imagine that there are few offences which cause so much distress, indignation and, very often, alarm. I will not speak about it, but two old ladies who are neighbours of mine and who live alone were burgled last weekend and it caused them great distress and upset. To make that kind of offence triable summarily seems to me to require very careful consideration.

The James Committee thought—I think the relevant paragraph is paragraph 113—that the arguments were fairly evenly balanced. One reason why I think that this matter should be looked at again is that I understand that the Court of Appeal has recently been urging Crown Courts to pass substantial custodial sentences for this offence, even on a first offender. Eighteen months has been suggested as a maximum sentence. If this offence is triable summarily, the maximum sentence that a magistrate will be able to pass will be six months. Therefore the Court of Appeal, if I am correctly informed, think now that what is required is a custodial sentence with a maximum of 18 months, and they are even recommending it for first offenders. It seems to me to be wrong that this offence should be made triable summarily and apparently devalued in the magistrates' court. I have put the point before your Lordships' Committee as shortly as I can. I hope that I have made it clearly and that the noble Lord will say, as he said in connection with the last Amendment, that he will defer consideration of it.


I am certain that any person sitting in any court will agree with the noble and learned Viscount, Lord Dilhorne, about the gravity of this offence. But when it comes to the magistrates' court and a Section 1 committal, magistrates commit straight away to the Crown Court. Magistrates do not even attempt to hear a case if serious damage has been done to property or people. It is sent straight away to the Crown Court. That is my practice.


This is a much more significant point than that which we have already discussed. Although I have no doubt that I shall end by asking my colleagues to have another look at the matter, it is with a rather different expectation of the conclusions to which they may come. We do not know about the number of cases, but we do know that there were 9,249 cases of burglary in dwellings where entry was made by force or deception. However, we do not know how many of those cases fit into this category. Nevertheless, I should think that a fairly large number would fit into it. Therefore we are concerned with a really adverse effect on the general purpose of the Bill.


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


I do not have that figure, I am afraid, but I will try to get it for the noble Lord. The offence of burglary in a dwelling where entry is gained by force or deception was not made triable summarily with the accused's consent in the 1968 Theft Act, although simple burglary was, because the Criminal Law Revision Committee, whose recommendations were implemented in the Theft Act, argued that the offence is especially serious by reason of being committed in a dwelling; that it was important that burglary in a dwelling should be considered not on the level of petty thieving but as one of the most important offences against property; and that there would be a danger that magistrates would be too ready to assume jurisdiction in order to avoid going through lengthy committal proceedings.

I am glad to say that when the James Committee examined these arguments they found virtually no evidence that magistrates are too ready to assume jurisdiction—so my noble friend can remain seated—for indictable offences. But in any case, as the noble Baroness said, most committals are now under the much speedier procedure of Section 1 of the Criminal Justice Act 1967. A more important factor which influenced their decision was that experience had showed that the present categorisation of burglary offences had given rise to anomalies. The James Committee pointed out that a person breaking a window to gain entry to an unoccupied house…is triable only on indictment, whereas a masked intruder entering a house through an unlocked door—a much more serious and frightening offence—is triable summarily with consent". Although the Committee found the arguments finely balanced, they were impressed by the volume of evidence they received in favour of all offences of simple burglary being dealt with on the same basis and being made triable summarily with the accused's consent, and accordingly they recommended that the offence be placed in the "either way" category. Those who favoured this course included the Magistrates' Association, the Justices Clerks' Society, the London Magistrates Clerks' Association, the Criminal Bar Association and The Law Society.


But not the Criminal Law Revision Committee.


But not, as the noble and learned Viscount says, the Criminal Law Revision Committee. I was making a positive, not a negative statement at that stage.


I thought I had better fill it in a little.


In view of what I have said and the weight of the case, the numbers concerned, the strength of the arguments on the other side—apart from the one which the noble and learned Lord put forward—and the support for it, I will ask my noble friend to look at the point again. The likelihood of his coming to a different verdict from that contained in the Bill itself is not very high, but certainly I cannot say that we shall not look at the point again.


Lest it be overlooked, the noble and learned mover of this Amendment has moved an Amendment which embraces not only (a) burglary but also (b) handling stolen goods from an offence not committed in the United Kingdom. This is dealt with in paragraph 132 of the report. It can hardly be thought that the learned draftsman and members of the Committee were very enthusiastic or confident about the suggestion that this particular offence should be triable either way, for they say, in paragraph 132: Handling stolen goods abroad… The Theft Act's exclusion of this offence from Schedule 1 to the Magistrates' Courts Act 1952 followed a recommendation of the Criminal Law Revision Committee. We assume that the Committee thought that it should not be triable summarily because of the difficult questions of law that might arise. We accept that for this reason the offence should usually be tried on indictment, but several witnesses have suggested that it should be triable summarily and we do not think that it is necessary to exclude the possibility of summary trial altogether. Never myself having been engaged in any case—of course I mean professionally—involving the handling of stolen goods arising from an offence not committed in the United Kingdom, though indeed professionally engaged in many which have been the product of an offence committed in this country, I would readily apprehend that there would be most difficult questions of law involved. Whether it was desirable that the matter should be left to the magistrates' court I cannot pretend to be very excited about, but I should have thought that it would be better if it were left as it is.


The noble and learned Viscount did not speak to this point so I did not answer, but whereas the Government would have considerable difficulty in making much change in the first part, the second part—as the noble and learned Lord has just said—is a very much narrower issue. The James Committee thought that there would be difficult questions of law, as the noble and learned Lord has said, but they saw no reason why the possibility of summary trial should be excluded altogether. That really is the point. I do not think it is a vital point, but while my noble friend is looking at the much more difficult point, he might look at this, too.


I am grateful to the noble Lord, and I apologise for omitting all reference to it, but I was trying to keep my remarks as short as possible. I realise that on the burglary point the prospects for my view being accepted are not altogether favourable, but I still think that the degree of pre-valance of the offence should be considered. If I am right in what I have said about the view of the Court of Appeal, our considerations ought to be thought about again.

I do not desire to press either of these Amendments to a Division this evening. One may come back to them again, but in the meantime there may be an opportunity for discussion. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.3 p.m.

Viscount DILHORNE moved Amendment No. 77: Page 44, line 44, leave out paragraph 23.

The noble and learned Viscount said: For the reasons that I am about to advance, I feel very strongly that the proposal to make this offence of dangerous driving and causing death triable summarily is completely wrong, and rather than that should happen I would prefer to see the offence abolished entirely.

I must begin by saying something about the history of this offence; how it came to be created and why. One can read the James Report without finding anything said about that or what purpose this offence was intended to serve. Those are matters which occurred a considerable time ago, and no reference is made to them by the James Committee. They are matters well within my knowledge because I was Attorney-General at the time when this offence was created, and whether I should claim or whether I should admit responsibility for it is a matter to which argument can be directed.

The position in 1955 was that juries simply would not convict of motor manslaughter in the most glaring cases, and when a man or woman was charged with motor manslaughter very often they were acquitted both of motor manslaughter and of dangerous driving. Manslaughter is of course an offence which covers a wide range, varying from near murder to near accident cases, and on a trial for motor manslaughter a judge had—and still has—to give a very complicated direction to a jury about the degree of recklessness or negligence necessary to constitute the offence and on which they must be satisfied in order to convict.

Those directions must have been very confusing to many juries, and I cannot help thinking—and I thought then—that it was for that reason that juries acquitted when it would have appeared to any person on the uncontested evidence that the acquittal was wrong. Another reason may have been the use of the word "manslaughter". So in those days I wondered whether one could not translate that offence of motor manslaughter into more simple language, and I suggested that the offence of dangerous driving causing death should be enacted. That was not without a considerable degree of controversy. I cannot remember what line the noble and learned Lord, Lord Hailsham of Saint Marylebone, took about it——


I can.


The noble and learned Lord has expressed views on so many things that I must be forgiven for not remembering the view he expressed on this one, but I do remember that the Ministry of Transport was not wholly enthusiastic in support of the proposal I made. It was left that the proposal should be put before the House of Commons and that the decision of the House of Commons should be accepted on the matter. So the matter came to be put by me before the Standing Committee on the Road Traffic Bill of 1955. I think the noble and learned Lord, Lord Hailsham of Saint Marylebone, was not a member of that Committee, which was perhaps fortunate.


I was a Member of the House of Lords and I spoke against the proposal in public.


That is one of those speeches I have not read. In the House of Commons I gave instances of cases in 1954, picked out pretty well at random, which I think shocked all the members of that committee. I remember that I had support from the Labour Benches as well as the Conservative Benches and, I think from the only Liberal then present. I had support for the view that something really should be done and the Amendment making it an offence was carried into the Bill without a Division.

This offence was meant to be an alternative to the offence of motor manslaughter and it was subject to this limitation: that as originally enacted this offence of dangerous driving causing death was only triable at Assizes by a red judge. It was realised that, degrees of dangerous driving varying so much, there might be charges where there was a small degree of dangerous driving followed by a death which would not have warranted a charge of manslaughter. This was meant to be an alternative charge where one would have charged manslaughter, and it was felt that if the cases that came before the Assize Court were cases which should not have been brought on this charge, the judges would soon give discouragement. I think myself that by and large this has worked reasonably well in those cases which formerly would have been charged with motor manslaughter.

But alas!—I have no doubt through lack of appreciation of the reasons for the creation of this offence—it has become the case in many parts of the country that where there has been evidence sufficient to warrant an ordinary charge of dangerous driving and where a small degree of dangerous driving has led to death, the police have preferred this kind of charge. It was not intended for that and it is not how it should be used.

I think perhaps all that would be necessary would be that guidance should be given to prosecuting authorities to the effect that the charge of dangerous driving causing death ought not to be preferred unless the case really also warranted a charge for motor manslaughter, because it was only meant to be an alternative to that. What is proposed is that this offence should be made triable summarily. That is completely altering the purpose for which this offence was created. I can say with the utmost confidence that I would never have got the Standing Committee of the House of Commons or the House of Commons to accept this proposal in 1955 if there had been any possibility of it being thought to be triable either by quarter sessions or before a magistrates' court. It was kept for trial before a High Court judge, and deliberately so.

So I would say that, rather than make this offence triable summarily, I would go back to the pre-1955 position, whereby you would have dangerous driving, careless driving and manslaughter. Whether juries would be more willing now to convict of manslaughter than they were then, I do not know; but of one thing I am sure, that it really is wrong to make this offence triable summarily. It is changing its character. This can only cause unnecessary duplication. I would rather see it go. I beg to move.

6.11 p.m.


I am glad the noble and learned Viscount has come clean about the paternity of this offence, and of course I do not reproach him for having paid no attention whatever, when he was a Member of the House of Commons and Attorney-General, to what took place in this House when a humble Back-Bencher said that the offence should never have been created at all. One of the things about which I have tried to be consistent in my life is to make the law a more logical and rational system. If I drive recklessly—which is a phrase I wish to use deliberately without at this stage giving my reasons for it—I ought to be punished and my licence ought to be taken away. Whether I happen to kill somebody or not is a matter of chance. Driving recklessly puts human life at risk, and that is why I deserve to be punished. If the degree of recklessness is severe, I ought to go to prison for it; but that is because I put human life at risk, not because in fact my victim died.

It is quite true that at the time when that revered and much-loved figure, Lord Goddard, was Lord Chief Justice, and the noble and learned Viscount was Attorney-General, they discovered that, for reasons with which I think I sympathise, juries were very reluctant to convict of what was called "motor manslaughter". I do not believe in prosecutions for motor manslaughter at all. I think that to make a separate offence simply because a particular type of driving leads to a particular result is simply to darken counsel, and I think that prosecutions for motor manslaughter deserved to founder, because juries thought so, too. Because juries would not convict, this new offence of causing death by dangerous driving was invented. It was neither motor manslaughter nor simply dangerous driving, and for a time I think juries convicted a little more readily. My information, such as it is, is that they are becoming just as suspicious of it now as they were of the original motor man-slaughter.

I sincerely believe that the Government—they will have great difficulty with the Ministry of Transport, who cannot think straight about driving offences at all—ought to reduce this field of the law to something like reason. Let reckless cases be dealt with seriously; let the licence be taken away, and in the worst cases prison imposed. But let not there be an offence which consists of a lottery; that if you kill your victim you are committing it, but if the victim escapes, either because of robust health or great physical agility, you are guilty of something less serious. Really that is nonsense.

The noble and learned Viscount has done many good things in his life, but this is not one of them. Since he has indulged in personal recollections, may I indulge in a very short one. I can remember saying this 22 years ago, when this offence was created, from the Back-Benches behind the Government. Lord Kilmuir was on the Woolsack and he made a very solemn speech, as he always did from the Woolsack, saying that he very much sympathised with his noble friend—of course, not learned in this House—and that he thought that English law should not be too logical after all. That is a view with which I profoundly disagree. I know I have sometimes been rebuked for introducing too much logic, but I think if law is to be respected it must appeal to the reason, and this is an offence which does not appeal to the reason. I do not particularly care whether or not this Amendment is accepted. What I want to get out of the Government is some promise to look at the reality of this offence before we in this House part with this Bill.


Before the noble and learned Lord sits down, may I say that I am profoundly attracted by his argument, but would he not agree that this would equally be true of a man who carried a firearm and, due to bad aim, did not kill his victim? He would not be charged with the same offence.


There is a difficulty in all homicide cases, of course; but in the main, if somebody shoots at me and misses, I hope he will be charged with attempted murder and not just common assault.


May I venture to agree with what the noble and learned Lord, Lord Hailsham, has said, which is really to the effect that the bad driving offence should be one of reckless driving. The difficulty we have got into with the present offence is that it is not an offence of causing death by reckless driving; it includes the offence of causing death by dangerous driving. Because of the way the law has been refined in recent years it is now extremely difficult to appreciate the distinction between dangerous driving and careless driving. There is no doubt that dangerous driving must be the more serious offence because the penalties are very much greater. As the law has developed, I personally would find it very difficult to draw any distinction between causing death by dangerous driving and causing death by careless driving. If there is a moment of temporary inadvertence on the part of a driver and death results from the accident, I believe prosecutions are being brought for the offence of causing death by dangerous driving, and very often convictions are being obtained. I would hope that the noble Lord will indicate that this extremely unsatisfactory area might be looked at on a rather broad basis.

The only other observation I would make in regard to this Amendment is that as the law has developed since the offence was introduced it is now unusual, I think, for a defendant who is convicted of the offence of causing death by dangerous driving to be sent to prison, an immediate custodial sentence, unless there are particularly aggravating circumstances, usually either drink or the fact that he is a hit-and-run driver, or sometimes a combination of both. Very often the offences are dealt with on the basis of the actual demerits of the driving itself. Very often those demerits are not very substantial, and very often as a result a not very substantial penalty is imposed. I think much opinion would welcome the disappearance of this offence, but if we are to retain it in its present form I can see no reason why it is not an offence that could properly in appropriate cases be triable summarily.


I entirely agree that this is not a satisfactory offence. I should like to see it go; in fact I wish it had never come. But I think that we have to recognise the fact that at the moment it exists, and as long as it does it would be wrong for a case which involves human death by what is still a criminal act to be tried by magistrates. As long as the offence exists, that situation would be entirely wrong.

We know that the range of these offences is very wide, that some of them really are a combination of carelessness and almost bad luck, and that some are very nearly genuine cases of manslaughter. Those that are manslaughter should be manslaughter and not motor manslaughter. The James Committee was very ambivalent about it, on the basis that it did not like magistrates dealing with acts that have caused death. I strongly support that. However, we are faced with the situation that the offence is there. We are guilty of one other matter; namely, that we have a very strong tendency to consider that offences that are committed in connection with motor vehicles are not really offences at all. That is why I do not wish the offence to be called "motor manslaughter".

I very much regret that the James Committee has given some countenance to the view that it is not immoral to commit an offence with a motor vehicle. That Committee said that to be convicted of a driving offence does not carry any serious moral stigma, et cetera. That is a statement of fact, but a great many of those offences jolly well should do. So long as a driving offence is a criminal act causing a death, we should be quite wrong to suggest that we should allow it to be tried by the magistrates.


Some fascinating points of view have been put by noble and learned colleagues. It is rather bad luck that the noble and learned Lord, Lord Gardiner, was not present to contribute a third point, which would have left the Government in even greater confusion. Enough has been said to show that there is something unsatisfactory here, but the noble Lord, Lord Wigoder, will probably prevail in the view that as this offence—well thought out or ill thought out—exists; it is an offence of a kind which should properly be triable either way because of the extraordinary width of guiltiness that it can cover.

I want to address a few remarks on the subject of the statistics. In 1973, 576 people were found guilty and 465—81 per cent.—were fined. Only 11 per cent.—62 people—received sentences of immediate imprisonment and almost half of those were for periods of six months or less. There was a very similar pattern in 1974. To go from a most serious offence to a fairly trivial one is unsatisfactory. If it it is put on the Statute Book, there will be a strong case for making it triable either way. However, in view of the weight of legal argument which has been advanced, I shall certainly ask my colleagues to look at this matter again. I do not believe that they will be able to reform the law in the short time available, but I shall certainly ask them to look at it again.


I am grateful to the noble Lord and to the noble Baroness, Lady Wootton, for their remarks. This particular offence now seems to have very few friends. I rather thought that the noble and learned Lord, Lord Hailsham of Saint Marylebone, was trying to revive the debate which obviously took place in this Chamber 22 years ago, when I was not present. I admire his efforts to make our criminal law logical— it is a big task. In 1955 if I had tried to say that people who by reckless driving killed other people on the roads were not to be liable to be convicted of manslaughter, however illogical it was, I should not have been able to achieve it. It may be that there were illogicalities about the offence that was created, but it was intended to have very limited scope and only to be charged when the recklessness or negligence was of a very grave kind.

I part company with the noble Lord, Lord Donaldson of Kingsbridge, when he says that this offence can cover a wide range of conduct. Of course he is right, but it is an offence—and this is what has been ignored by the James Committee and every other Committee—intended only to be charged where the negligence or recklessness is of a very grave character. I hope that the noble Lord will reflect upon that because instructions could be given that charges, which are always preferred by the police, could be limited to that character of offence.

There is no ground for making this offence triable summarily without altering the whole purpose and effect of the provisions. I do not want to prolong this matter but I agree with the noble Lord, Lord Wigoder, that it is really impossible to draw a line between dangerous driving and careless driving—the one merges into the other. I agree with the remarks made by the noble and learned Lord, Lord Hailsham, that it would suffice if these motoring offences became just one offence, that of reckless driving or dangerous driving—whichever lable we wish to give it. On the one hand, we should get rid of careless driving and, on the other hand, we should get rid of this offence. That would make the law much simpler. If I could be assured that at the next stage of the Bill I should not be savagely bitten by the noble and learned Lord, Lord Hailsham, I should feel quite inclined to table an Amendment, to which he might put his name, to abolish the offence of careless driving—after all, it is a criminal offence—and to abolish the offence of dangerous driving causing death. This would simply leave the offence of dangerous driving. Sufficient to the day. We have had an interesting debate. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Schedule 3 [Offences triable either way by virtue of section 16(1) or (2)]:

Lord MORRIS of BORTH-Y-GEST had given Notice of his intention to move Amendment No. 78: Page 45, line 37, leave out sub-paragraph (i).

The noble and learned Lord said: This Amendment marries with the previous Amendment with regard to bigamy. In view of what was then said, I do not move this Amendment.

Schedule 3 agreed to.

Schedule 4 [Offences for which the value involved is relevant to the mode of trial]:

6.28 p.m.

Lord MORRIS of BORTH-Y-GEST moved Amendment No 83: Page 37, leave out Part I of the Schedule.

The noble and learned Lord said: I would point out that in the Amendment the words, "Page 37" should read "Page 49". I think that the noble Lord, Lord Harris of Greenwich, will agree that acceptance of this Amendment is consequential on the acceptance by the Government of the earlier Amendment relating to Clause 23. I therefore beg to move.

On Question, Amendment agreed to.

Schedule 4, as amended, agreed to.

Schedule 5 [Alteration of penalties on summary conviction of certain offences triable either way]:

Lord GIFFORD moved Amendment No. 83D: Page 51, line 33, leave out ("3 months or £500, or both") and insert ("in the case of offences relating to cannabis or cannabis resin, £500; in the case of offences relating to other Class B drugs, 3 months or £500, or both.").

The noble Lord said: We come now to part of the Bill which reviews some of the penalties on conviction for various offences. When Criminal Law Bills review penalties the object is almost always to increase them. My Amendment reduces the penalties for two offences—the simple possession of cannabis and cannabis resin and the cultivation of cannabis. Some 100 years or 200 years ago Parliament was concerned to reduce various penalties, now thought to be barbarous, in relation to transportation and death and other barbarities for what were considered to be minor offences. It may be that in another 10 or 20 years, let alone 100 or 200 years, it will be considered to have been somewhat barbarous that persons were sent to prison for the simple possession of cannabis or cannabis resin.

The offences which are concerned in this Amendment are offences under the Misuse of Drugs Act 1971. When that Act was going through Parliament, there was a body of opinion of which I was a part, together with the noble Baroness, Lady Wootton, and, I think, the noble Lord, Lord Foot, who sought to persuade the Minister speaking for the Home Office that cannabis ought to be in a class on its own, and should not be subject to severe penalties of imprisonment both on summary conviction and conviction on indictment for the simple possession of it. Those arguments did not find favour, and the position at the moment is that the simple possession of however small a quantity of cannabis can be visited with imprisonment. My Amendment seeks to take away the possibility of imprisonment in the magistrates' court.

I am informed that in 1975 some 514 people were sent to prison for the simple possession of cannabis. That, of course, is bearing in mind that there is another offence of possessing a drug with intent to supply it, and therefore persons who are convicted of possessing it only, one may presume, are persons possessing it without intent to supply. This is the first time that there has been an opportunity to review the penalties relating to cannabis since 1971. I would suggest that all the indications since then favour those who were arguing in this House and elsewhere that the penalties for the possession and cultivation of cannabis ought to be sharply reduced.

In many States of the United States of America, there is no longer a penalty of imprisonment for the simple possession of small quantities of cannabis. I am informed that about eight States have changed their law; not legalising cannabis, but providing that up to a certain quantity the only penalty should be a fine. This is what this Amendment seeks to bring about. It is no doubt going to be said that any reduction of the penalties relating to cannabis indicates that the Government, or the House, are approving of the use of cannabis. It is not a question of approval. This Amendment does not seek to legalise the use of cannabis. The Committee need no more approve of cannabis if it does not want to than it approves of speeding or other offences of a minor motoring category. The Committee does not approve of speeding, but it would never think of putting people in prison for it.

The imprisonment of people for the simple possession of a drug which, on all the indications, is one which, as the noble Baroness said in her report, used in moderate quantities does not cause anyone any harm, should be regarded as a barbarity. I urge the Committee to reconsider whether this part of our prison population ought to be there at all, and whether the type of penalty envisaged for this kind of offence ought not to be changed. I beg to move.


I should like to support this Amendment. I think that the offences of the possession and taking of cannabis are still serious, because I believe it can still lead to the use of hard drugs. I think that no good has ever been done by imprisoning people for taking cannabis. I have never done so, and therefore I have not contributed to the 514 people the noble Lord mentioned. I support this Amendment because imprisonment has been deleted, and the fine of £500 kept in. For those young people who have come before me I have usually asked for a report from the social services. Usually they have been fined and put on probation. Often they are young people who need outside help and counsel.


I must apologise because the Committee having speeded up so much I failed to hear the opening of Lord Gifford's speech, but I am quite sure that I would have supported everything that he said. This is a very timely Amendment. Perhaps I might take this opportunity of repeating once more what I have said over and over again in the past nine years. The report of the Advisory Committee on Drug Dependence of 1968 did not recommend the legalisation of cannabis; it recommended rather modest changes in the penalties that could be imposed for possession or even trafficking. This Amendment proposes that there should be further modification.

The previous proposal was denounced, usually by people who mistook what it contained. It was denounced very savagely in all directions. Since then a lot of water has flowed under bridges—or perhaps I ought to say a lot of pot has been smoked—and the climate of opinion now is different from the climate of opinion nine years ago. There have been great changes—and no doubt the noble Lord may have mentioned them—in other countries where simple possession, and certainly simple possession of small quantities, is not an imprisonable offence, as we now say.

All that is proposed in these Amendments is that it should not be an imprisonable offence on summary conviction. You could hardly take a more modest step than to discriminate between this particular drug, which stands in a class very different from the one about which we are so much concerned at the moment; namely, heroin. You could hardly take a more modest step in the direction of liberalisation. I therefore wholeheartedly support this Amendment.


In general I absolutely support what the three speakers have said; that is, the removal of the imprisonment part of the sentence for what the noble Baroness, Lady Wootton, has called the simple possession of small quantities. The only thing that worries me a little is whether I would think that this was a suitable penalty for somebody deliberately bringing cannabis into this country and promoting its use among young people, because that seems to me a much more serious offence. Perhaps that was covered in the opening remarks which, I am afraid, owing to the sudden hurrying of the time-table, I also missed.


Perhaps I could help the noble Lord. My Amendment does not touch the existing offences of both supplying cannabis and indeed importing cannabis, both of which have substantial penalties attached to them and which would remain intact. It is only the simple possession and cultivation.

6.38 p.m.


My noble friend's Amendment, as he has indicated, seeks to remove imprisonment on summary conviction for the offence of possessing cannabis or cannabis resin. The point which he did not put forward in his speech—and I make no complaint about that—is that the Bill reduces the period of imprisonment that is available at the moment for magistrates when sentencing for this offence from six months to three months. The Bill in fact does that, so it represents a change in the law.

If we were to remove imprisonment for offences of possession of cannabis, we should in fact be creating a fourth class of drugs, and placing cannabis in a class of its own as regards possession though not as regards the other offences under the Misuse of Drugs Act 1971, because that Act differentiates between the seriousness of the same offence according to the kind of drug used; A, B, and C classes of drugs. Cannabis is at the moment classified as a Class B drug. Possession of drugs in Class C is taken to be less serious an offence than any other kind, and in recognition of this the maximum penalty will be, once the Bill is enacted, three months' imprisonment or £200. But of course the Amendment deals only with cannabis, which, as I have indicated, is regarded as a more serious matter than Class C, which would be untouched by the Amendment. I am sure that my noble friend will have taken this point.

I am glad that my noble friend Lady Wootton is here because she was involved in 1968 in the consideration given by a sub-committee of the then Advisory Committee on Drug Dependence which prepared the report on cannabis to which she referred. That sub-committee while expressing the view that the long-term consumption of cannabis in moderate doses had no harmful effects, nevertheless observed that it was not recognised for a very long time that tobacco smoking could produce lung cancer. It was not therefore possible to say that the long-term consumption of cannabis was necessarily free from danger. I am trying to summarise her report as accurately as I can.

The sub-committee considered the scale of penalties which they felt appropriate for offences involving cannabis and expressed their intention of removing for practical purposes the prospect of imprisonment for possession of a small amount of cannabis. Although inclined to prefer that imprisonment should not be available for offences of possessing cannabis, the Wootton Committee concluded that they could foresee situations where a short prison sentence could be an effective deterrent, particularly to someone repeatedly engaging in small-scale trafficking. Their recommendation was that there should be, on summary conviction, a maximum penalty of four months' imprisonment in addition to the fine. What we are proposing in the Bill is three months. In 1971, following the consideration which was given to my noble friend's report, six months' was in fact written in and, as I have indicated, in the Schedule the Government are proposing to reduce the period to three months, which will go a considerable way to meet the point made by my noble friend and her Committee.

The Committee recommended that the Advisory Committee should keep the problem of the use of cannabis under close review. The Committee's successor, the Advisory Council on the Misuse of Drugs, has a special working group devoted to the study of cannabis. In 1975 the Advisory Council as a whole considered cannabis and informed the then Home Secretary of its interim conclusions and of its intention to consider the position again within the next 12 months; the working group has recently been reconvened. The Advisory Council in its observations last year recognised the anxiety felt about the use of custodial sentences for offences of possession of cannabis. They noted however that there had been a substantial reduction in the use of custodial sentences since the publication of the Wootton Report and that the judicial processes now emphasised the desirability of alternatives to custodial sentences wherever possible. It is only fair to say that in 1974 only one first offender was sentenced to imprisonment by a magistrates' court for simple possession of cannabis as the only offence, and in 1975 the number was three. The total found guilty in those two years in the same category was 6,495 and 5,954 respectively.


Would the Minister say whether those figures include the Channel Islands, because I am told that magistrates there are particularly strict on cannabis possession and have been in the habit of sending people to prison for a first offence?


I am sure that on reflection the noble Lord will realise that that is not a matter for the Parliament of the United Kingdom. Jersey and Guernsey have their own Legislatures and would not be touched by any Amendment to this Bill.

The Advisory Council felt that nothing should be done at the moment to amend the law relating to cannabis as long as the matter was kept under review. They felt that the potent and dangerous cannabis concentrates which are now available require strict control and that there was still considerable uncertainty about the harmfulness of the use of cannabis. As I have already said, a fresh review of the position has now been begun by the Cannabis Working Group of the Council and I feel sure that we will all be anxious to consider their conclusion, before wanting to amend radically the law on cannabis. The reduction in imprisonment which the Bill already effects will, I think, serve as a pointer to the courts that simple possession of all the drugs in Classes B and C under the 1971 Act is still seen as a relatively less serious offence than the others under the drugs legislation. I would certainly not wish to seem in any way to undermine the Wootton Committee's recommendation that imprisonment was not in general the appropriate sanction for the possession of cannabis. But I am not persuaded that the time is yet right to go wholly in the direction put forward by my noble friend.

I shall of course reflect on what has been said in this debate and I am sure he will want to reflect on the point that it would be wholly illogical to move, dealing with Class B drugs, in the way he has recommended and leave Class C untouched. I would not wish to indicate at the moment that the Government are likely to change their position on this matter but, as I have indicated, I will take note of what has been said.


I wish to correct my noble friend in certain of the interpretations he gave of the Advisory Committee's Report. I do not have the report with me, but we said that custodial sentences might be appropriate in cases of repeated supplying, but at that time the Committee was given to understand that it would not be possible to make separate offences of supplying and possessing, and therefore we had to cover supplying as well. Since then it has been made possible by the Misuse of Drugs Act to find a way round this difficulty and trafficking and possessing are now distinct offences. Had we been able to do that we should certainly have said "No imprisonment merely for possessing".

We did not particularly want four months' imprisonment; we picked four months' because it gave a right to trial by jury, and for no other reason whatever. It may be said that we were fairly consistent in our view that imprisonment was not appropriate as a penalty for possession. Imprisonment is a very serious matter for young men or women—it is mostly young people we are considering—who are seeking to undertake a professional career. Indeed, it may be a total barrier to a number of professional careers if they have done this indiscreet thing of having in their possession possibly a small quantity of this drug. If in fact very few sentences of imprisonment are imposed, that is a good reason for saying "If so few, why not none"?

6.49 p.m.


I apologise to the noble Lord, Lord Gifford, for not being in my place to hear him move the Amendment. A few points need underlining as a result of the Minister's speech, and particularly his reference to the reduction in penalties being allowed for in the Bill. I recall that in the debates on the Misuse of Drugs Act 1971 it was pointed out that the penalties were being substantially reduced as against those which had operated in the Dangerous Drugs Act 1965. Now the Minister says there is to be a further reduction. Why not continue the process?

What is the logic of saying that imprisonment is not an appropriate penalty for the offence of possession, which the Minister has said—he said he was delighted that there were various alternatives to custodial sentences—when, this being the second time round in our consideration of the situation, and everyone is agreed on all sides that imprisonment is not appropriate, we are not continuing the process? We have the experience of the Misuse of Drugs Act 1971. Nobody has produced evidence to show that imprisonment has done good to the people given these sentences and, although the noble Baroness says that people are delighted that the numbers are going down, I would remind your Lordships that, in 1975, according to the report of HM Inspector of Constabulary, over 500 people were given custodial sentences, with what effect on their lives your Lordships can imagine. As the noble Baroness has said, these are mostly young people on the threshold of their careers, which may be irreparably ruined because so many occupations will be denied to them as a result of the courts having imposed these sentences.

I understand that the noble Lord, Lord Gifford, referred to the more liberal legislation which now operates in many of the States of America. He may also have referred to the situation in Holland where I understand that, although no explicit change in the law has been made, custodial sentences are not imposed for possession of less than one ounce. This is a matter that might be considered before Report stage by the Minister and, if he cannot go as far as removing the custodial sentence, perhaps it could be provided that custodial sentences for possession of a very small quantity of the drug could be removed. I understand that there are other means of bringing to court and imposing sentence upon persons who are in possession of much larger quantities which are clearly not for (heir own use. Perhaps the noble Lord would look at what has been done in Holland in this respect, and perhaps also ask the Working Group to look at the evidence which is emerging in Australia, where an inquiry is under way.

However, I would say to your Lordships that a time comes when inquiries have to cease and politicians have to take decisions. There is a mass of evidence available. There is the noble Baroness's extremely thorough inquiry and there is the report of the United States Department of Health, Education and Welfare on the long term effects of cannabis. I do not know whether the Minister has had a chance to study it, but I am reliably informed that it produces no evidence whatsoever to show that there is any long term harm from taking cannabis. With the greatest respect, I doubt whether the Working Group is likely to come up with more evidence than is available to such a powerfully-funded body in the United States, so I am not sure that there is really much point in ducking this decision and saying that we must await the report of some further investigation by the Working Group.

I said in a previous debate, when we talked about imprisonment for soliciting, that this might be the last opportunity that your Lordships would have of considering the matter for very many years. That was in the case of vagrancy and street offences. Now the noble Lord makes all sorts of reassuring noises about the Government's willingness to consider amendments to the law later on, but it is not that easy to find gaps in the Parliamentary timetable where legislation can be introduced to deal with one particular problem.


I take that point completely. The noble Lord pressed his Amendment on the last occasion and the Committee came to a conclusion on the matter. What I am saying on this Amendment is that the Amendment is, for the reason I have given, defective in any event and that I can give no undertaking of any sort that the Government are likely to change their position on this matter. What I have said is that I will reflect on this matter. If my noble friend or the noble Lord, Lord Avebury, wish to put down the Amendment again at Report stage they will of course be entitled to raise the matter again and will secure some further information about the Government's position.


The noble Lord has anticipated me because I was going to suggest to the noble Lord, Lord Gifford, that, having taken soundings of the Committee this afternoon and having attracted a substantial amount of support for his Amendment, he will have an opportunity of testing the feeling of the House not this afternoon but when we come back to the subject on Report stage. I very much hope that if he withdraws his Amendment this afternoon he will give us another opportunity of returning to the matter.


I should like to say a brief word, having listened to the very lucid and logical speech of my noble friend Lord Harris. I am not at all sure that the Amendment is not right, though I do not think that it should be pressed at this moment. It seems to me that it is very dangerous to try to enforce laws that a great many people do not regard as punishing something that is morally wrong. My noble friend drew an analogy between cigarette smoking, which is harmful, and cannabis, which has not yet been proved to be harmful. But, although we know that smoking is harmful, no one thinks of prohibiting it because the country would not stand it.

There are a great many young people who do not regard the occasional smoking of pot as being worse than drinking whisky and so on. While this is not so true of older people, there is no doubt that, among younger people, a very great many do not regard this as a moral offence. This having a small amount and occasionally having a go at it is quite separate from pushing or anything of that kind. Young people say that grown-ups drink as much whisky as they like, whereas they are not allowed to smoke any pot at all. They do not regard this as a moral offence and I think that it is a great error to try to force upon large numbers of people laws upon a matter which they do not regard as immoral.

There is one other point that I want to make. I believe that if the Amendment or something on the same lines were made it would be one more barrier in the way of the pusher. If it is made very difficult and illegal to have even small amounts of pot, the pusher will have a certain status, whereas, if that is abolished, it will knock out one field in which the pusher works. The pusher, of course, is not really concerned with pot. He is concerned with heroin and he wants to get hold of people who use pot in order to push heroin further along. Anything we can do to make that more difficult and to destroy the market of the pusher is for the good.


My noble friend Lord Harris has indicated that he will take careful note of what has been said in this debate. The Amendment has attracted support from a very wide spectrum of your Lordships' Committee and I hope that when my noble friend's advisers consider this matter they will take into account one or two further points. My noble friend talked about the advice that he was getting from the Advisory Council. He said, if I have it right, that it was concerned about people being imprisoned for the possession of cannabis but was glad to note the substantial reduction in the number of such terms of imprisonment. It is a great tribute to the work of the noble Baroness, Lady Wootton, that magistrates have come to recognise that simple possession is not something for which young people should be put into prison. Nevertheless, some are. My noble friend gave figures of one and three for the persons sentenced to imprisonment on first offence. He did not give the Committee the numbers sentenced other than on first offence. I do not know whether he has those figures and would be able to give them to me. I see that he shakes his head, so I hope that he will be able to give them to me in writing.

If there is even one, let alone 500—as I am informed there are—persons sentenced to terms of imprisonment not for supplying, when supplying charges are open, but for simple possession, I believe that, in the light of current knowledge, that should not happen, even on second, third or fourth conviction. It is not an answer to say that there has been a reduction if some persons are still suffering through ignorance on some benches.

My noble friend indicated that the Amendment was putting cannabis into a separate class. I believe that that is right. Those who spoke in 1971 thought that it should be a separate class of drug. Magistrates and others who have had to deal with the problems arising through its use have come to recognise that it is indeed in something of a class of its own. What I hope is that when we next come to consider this matter, as we shall, we can be told whether the advice received by the Home Office is beginning to confirm that there should be a separate class, in which case, no doubt, Amendments or new regulations enforcing the Misuse of Drugs Act would be the best way of going about it rather than by an Amendment to this Bill.

Another matter which has been raised, notably by my noble friend Lady Wootton of Abinger, and by the noble Lord, Lord Avebury, is whether consideration should be given, perhaps as an alternative to this Amendment, to the removal of the danger of imprisonemnt for the possession of very small quantities. A great number—the majority—of persons who are hauled up before magistrates' courts, perhaps because of the action of some over-zealous policeman, appear there for having very small quantities indeed. There are various ways of liberalising the law relating to cannabis to bring it into line with what the noble Lord, Lord Gordon-Walker, quite rightly said were the views of a large section of the population, particularly the young. I hope that serious thought will be given to this matter by the Government,

Page 53, line 5, at end insert—

Offences under section 42 (common assault or battery). Section 42 (as amended by Schedule 3 to the Criminal Justice Act 1967). £50. £200.
Offences under section 43 (aggravated assault or battery). Section 43 (as amended by Schedule 3 to the Criminal Justice Act 1967). £100. £500.")

The noble Lord said: This Amendment increases the maximum fine for the purely summary offences of common assault or battery, and aggravated assault on a woman or child under 14.

Page 54, line 14 at end insert—


Offences under section 1 (unregistered persons using title of architect) Section 3. £50. £500.")

The noble Earl said: I beg to move this Amendment in the absence of my noble friend Lord Kinnoull. The Amendment seeks to raise the maximum fine under the Architects Registration Act 1938. If I had a hint from the noble Lord that he would receive this Amendment favourably, then I could deal with it very quickly; otherwise I should have to take a little more time. This is not blackmail.


I am sure that it is not blackmail. I should

and in the light of that suggestion I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord HARRIS of GREENWICH moved Amendment No. 84A: Page 52, line 31, leave out from second ("the") to end of line 33 and insert ("prescribed sum (within the meaning of section 28 of the Criminal Law Act 1977 or, in Scotland, of section 289B of the Criminal Procedure (Scotland) Act 1975) or both.".").

The noble Lord said: This is a drafting Amendment. I beg to move.

On Question, Amendment agreed to.

Schedule 5, as amended, agreed to.

Schedule 6 [Increases of fines for certain summary offences]:

Lord HARRIS of GREENWICH moved Amendment No. 84B:

On Question, Amendment agreed to.

The Earl of MANSFIELD moved Amendment No. 84E:

never associate such a grave matter with the noble Earl. I should say at the outset that we would recommend the Committee to accept the Amendment.


I am much obliged to the noble Lord. For the record, I should like to say that as in so many other spheres of our national life, inflation has made actions taken in the magistrates' court under this Act increasingly of less consequence to the defendants because of the miniscule fine of £50 which is all that can be extracted from them. This proposal is in line with very many others in the Bill, and I commend it to the Committee.

On Question, Amendment agreed to.

7.4 p.m.

The Earl of MANSFIELD moved Amendment No. 84F: Page 54, line 20, in column 4, leave out ("£50") and insert ("£200").

The noble Earl said: This is an attempt to do much the same thing as in the previous Amendment but in relation to a very different enactment, and it follows consultations with a very different body, to wit, the Magistrates' Association. It might seem slightly unusual that a magistrates' court might wish to fine parents whose children are truants as much as £200. I must say that I was faintly surprised when this point was first put to me, but I am assured that there are cases of persistent truancy where the child in question apparently earns a very good living by undertaking some form of employment when he should be at school, and magistrates' courts feel inhibited from dealing with the parents in the way that they feel they should be dealt with. I do not think that I can put the matter any higher than that. Perhaps the noble Lord, Lord Harris of Greenwich, is in a better position than myself to comment, but I put the Amendment forward for the consideration of the Committee.


I should like to speak briefly in support of the Amendment of the noble Earl. I do so because a great many of the cases which come before me in juvenile court arise from children playing truant, and it is very difficult to persuade parents, without the force of fining them, that they should insist that their children go to school. They say that they take their children to school, but there the matter rests. One can hardly envisage an occasion upon which one would actually fine a parent £200 in such a case, but this is the kind of amount which might make parents more aware of their duty in sending their children to school. The maximum fine of £10 which we have been able to impose in the past has been quite ludicrous, and we have had real problems, with parents going out of court laughing at the bench because we have been unable to fine them more than £10. The proposed £200 is merely a maximum, and I do not think that many courts would impose such a fine. But the threat of such a financial penalty against parents who do not ensure that their child goes to school, and thus almost aid and abet the child to get into trouble, would be very helpful to juvenile benches.


In the main I should like entirely to support this proposal. As someone who has had experience in all levels of education, I agree that the magistrate has a problem, and if we want to build up a new Britain children must be encouraged to attend school. But I regret having to say that sometimes there is discouragement. Nevertheless, during a period of recession there might be the odd occasion upon which to exploit—I do not know whether I should use that word—a child who is selling newspapers or doing something similar, and so encourage some truancy. The mitigating circumstances of special cases should certainly be taken into account. This is a well-informed Chamber and there is no need to develop the argument, except that I believe it to be worth while to put forward the caveat that mitigating circumstances should be taken into account, if the Government accept the Amendment.


I hope that the Government will accept the Amendment. I appreciate the point put by my noble friend, but of course that is a matter for the magistrates themselves to decide when they impose a penalty. The important feature is that where there are cases in which parents have not exercised the duty which they are capable of exercising, magistrates should be in a position to impose a heavier penalty. I should say in parenthesis that there are other cases in which parents cannot possibly control, or are in a difficult position in which to control, their children. But that again is a matter for the magistrates themselves to decide. But the opportunity should be afforded to magistrates to impose a heavier penalty, and I believe that of itself the possibility of imposing a penalty would act as a deterrent to those who were committing the offences concerned, and I hope that the Government will consider this proposal favourably.

7.10 p.m.


The proposal in the Bill for an increase to £50 is, in fact, for a first offence, a doubling in real terms since the fine was last increased, which was to £10 in 1967, and it is our present view that that is about right and that it is possible that the noble Earl's Amendment goes rather too far. Quite apart from any other consideration, there is the point that on a third or subsequent conviction there is available to the court the other possible sanction of one month's imprisonment. Taking a parent to court for failing to comply with a school attendance order is in fact a fairly drastic step, and I know that my right honourable friend the Secretary of State for Education and Science views the possibility of prosecution as a comparatively minor aspect of the programme for dealing with unjustified absence from school. There are, I should inform your Lordships, two surveys by Her Majesty's Inspectorate under way. One is of secondary schools in urban areas which are having particular success in dealing with truancy or behaviour difficulties, and the second is of the special units which some local education authorities have set up to cater for truants and for disruptive pupils. We are looking to these surveys to provide practical and useful information for the schools and the local authorities.

It is important, I think, not to lose sight of the fact that in many cases much can be done within the schools—for example, by good pastoral care by the teachers and educational welfare officers and, indeed, initiatives in the curriculum—to influence non-attendance before it ever gets to the stage where it is necessary even to contemplate prosecuting the parents. I also think that it is important not to let the penalty for these offences become disproportionate, and I hope that, in the light of what I have said, the noble Earl will not press this matter. As I have indicated, it in fact represents a doubling in real terms, so far as the first offence is concerned, since 1967, and the Government attach the greatest importance to the initiatives which I have just outlined.


I am bound to say that on this occasion I find the reply of the noble Lord, Lord Harris, less than satisfactory. Leaving aside what efforts schools, teachers and so on are making to reduce the incidence of truancy, which is an entirely different question, the matter before the Committee is: What powers are the magistrates to be given in those cases—and, in the nature of things, they must be few and far between—where there is a flagrant breaking of the law by parents in the circumstances which I have described? I have received unexpected but powerful support from my noble friend, who instanced cases of parents and children who leave her court laughing. As against that, the noble Lord, Lord Harris, says, if I may say so, that it is a matter of arithmetic, and that just because the maxima have been increased so far that is some argument against increasing them very much further.

I really think that we sometimes get out of proportion when we consider a Bill like this. As I shall be telling your Lordships' Committee on the next Amendment I shall move, the penalties for careless driving are shortly going to be put up to £500; and, without going into the past history of my noble and learned friend or of the noble and learned Viscount, Lord Dilhorne, who is no longer with us, it is a fact that, because of the fall in the value of money and the rise in the standard of living, the courts have to take a much more rigorous view of certain cases which come before it.

I noticed a certain Arabian tendency, if I may so call it, on the part of the noble Lord in his answer. I do not know whether we could strike a bargain over this, in the manner of horse-dealing, but I obviously do not intend to divide the Committee tonight. Perhaps we may both have second thoughts, with the various people with whom we communicate, before the next stage of this Bill; and I warn the noble Lord that I may put down another Amendment.

Amendment, by leave, withdrawn.

Lord HARRIS of GREENWICH moved Amendment No. 84C:

Page 55, line 33, at end insert—

("MIDWIVES ACT 1951 (c. 53)
Offences under section 8 (falsely using title of, or implying certification as, midwife). Section 8 (as amended by Schedule 3 to the Criminal Justice Act 1967). £10 for a first offence and £50 for a second or subsequent offence. £500.
Offences under section 9 (persons other than certified midwives attending women in childbirth without medical supervision). Section 9. £10. £500.
Offences under section 10(3) (disqualified midwives attending women in childbirth in contravention of a prohibition). Section 10(3). £10. £500.
Offences under section 11(1) (unqualified persons acting as maternity nurses for gain). Section 11(1). £10. £500
Offences under section 4(8) (contravention of prohibition from attending women in childbirth other than as midwife). Section 4(8). £10. £500.
Offences under section 9 (falsely using title of, or implying certification as, midwife). Section 9 (as amended by Schedule 3 to the Criminal Justice Act 1967). £10 for a first offence and £50 for a second or subsequent offence. £500.
Offences under section 10 (persons other than certified midwives attending women in childbirth without medical supervision). Section 10. £10. £500.
Offences under section 11 (unqualified persons acting as maternity nurses for gain). Section 11. £10. £500.
Offences under Section 12(1), (2), (3) and (4) (unlawful use of titles, Certificated, etc.). Section 12. £10 for a first offence and £50 for a second or subsequent offence. £500.")

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 84D: Page 56, line 10, at end insert—

("NURSES ACT 1957 (c. 15)
Offences under section 27 (false assumption of title of registered or enrolled nurse etc.). Section 27. £10 for a first offence and £50 for a second or subsequent offence. £500.
Offences under section 28(1) (restriction on use of title of nurse). Section 28(1) £10 for a first offence and £50 for a second or subsequent offence. £500.")

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 85: Page 56, line 31, leave out ("education authority") and insert ("appropriate Health Board").

The noble Lord said: This is a drafting Amendment. I beg to move.

Lord HARRIS of GREENWICH moved Amendment No. 85P:

Page 57, line 14, at end insert—

"HOUSING ACT 1964 (c. 56)
Offences under section 65(1) (failure to comply with notice requiring execution of works) where committed in respect of a notice served under section 16 of the Housing Act 1961 (provision of means of escape from fire). Section 65(1). £100. £500.").

On Question, Amendment agreed to.

7.18 p.m.

The Earl of MANSFIELD moved Amendment No. 85T: Page 57, line 20, at end insert—

Offences under section 13(4) (contravention of provisions as to use of special roads). Section 13(4) (as amended by Part II of Schedule 5 to the Road Traffic Act 1974). £100. £500.")

The noble Earl said: This Amendment seeks to put the maximum penalties in respect of what I might term motorway offences on the same basis as those in respect of the ordinary driving offences, such as careless driving. It is a fact—or it will be when this Bill becomes an Act and comes into force—that for careless driving, as I said a few moments ago, the maximum penalty which may be imposed by a magistrates' court can be as much as £500. But in the case of motorway offences, which can themselves be very much more dangerous in certain circumstances than careless driving, for some reason the maximum fine remains at £100. One can think of examples fairly readily. The ones that I would suggest might be driving down the wrong side of a motorway, which happily does not happen very frequently but which does happen; or, secondly, perhaps, making a U-turn on a motorway, which again happens from time to time. It may be said, of course, that in that event a second charge of careless or dangerous driving might be preferred against a defendant. I would submit that it is perhaps tidier to make a new maximum penalty in respect of motorway offences, and I beg to move.


As the noble Earl has said, the offences covered by Section 13(4) of the Road

On Question, Amendment agreed to.

Traffic Regulation Act 1967 can include some very serious and potentially danger-our acts on motorways. Performing a U-turn and being forced to drive in the wrong direction along a motorway is not a breach of the regulations to be taken lightly. I appreciate and share the concern which I know is expressed by magistrates about such offences, and I should certainly like to indicate to the noble Earl that I accept the case for an increase in this maximum fine. However, I should like to consider, before the next stage, the extent of that increase.


I wonder whether my noble friend would consider discussing these matters between now and the Report stage with those who actually perform the duty of imposing the penalties. It is very interesting to find in this House that people, no matter what they are proposing, make laudatory statements about magistrates and apologise to the magistrates if they are proposing something which the magistrates disagree with. The fact of the matter is that tremendous respect for the experience of magistrates prevails throughout the country. I do not know whether the general public realise that today magistrates sit in the Crown Courts and have a considerable influence on the judges who sit there. I am quite certain that many of the judges, in coming to decisions, rely upon the advice they are given by the magistrates who sit with them. If they do not, I gather that in some cases the magistrates can out-vote the judges so far as penalties et cetera are concerned.

I do not think that the standing of those who give this voluntary service and who are people who devote themselves voluntarily to doing a duty for the country is always fully appreciated. Incidentally, I wonder whether my noble friend has ever calculated how many millions of pounds the lay magistrates save the country. If he is going to use the kind of argument frequently being used—that, "We cannot do this or that because of the cost"—the Government might take into consideration the fact that a tremendous amount is saved by the use of magistrates.

I, personally, do not want to put it on that basis, but I do so because the Government, from time to time—and I believe the Opposition approve of it—put that as the basis of opposing something which they think is essential even for the benefit of justice being given. I intervened because I think that close co-operation should exist between the Government and the Magistrates' Association between now and the Report stage on the points brought out in order to see what their practical experience leads them to advise.


This Amendment was drafted by the

Lord HARRIS of GREENWICH moved Amendment No. 85Q:

("HOUSING ACT 1969 (c. 33)
Offences under section 61 (failing, after a previous conviction, to comply with an obligation to execute works) where committed in respect of an obligation to execute works in pursuance of a notice under section 16 of the (Housing Act 1961 (provision of means of escape from fire). Section 61(2). £100. £500.")

The noble Lord said: This Amendment will increase the maximum summary fine under the Housing Acts for offences concerned with fire precautions. I beg to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 85R: Page 59, line 11, column 1, at end insert ("section 33(1)(n) (falsely pretending to be an inspector).").

Magistrates' Association.


I believe that this should be considered by the Magistrates' Association because of their experience. I am surprised to hear that the noble Earl did not himself consider it advisable to have a word with the magistrates about the Amendment.


This Amendment has been put down at the request of the Magistrates' Association. That is why it has been put down.


Then I entirely misunderstood—and I apologise—what the noble Earl said. I gathered that he did not consult the magistrates. I am talking about the Government being in consultation with them. I would strongly recommend that on these issues they should be advised by those who are really experiencing what takes place from day to day.


Whichever end of the stick the noble Lord, Lord Janner, has got hold of, I am personally certain, to use the fine art sense, that the noble Lord, Lord Harris, knows the provenance of this Amendment. Obviously I accept the proposition which he has put forward that he will consider the matter; and, for now, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The noble Lord said: This Amendment will provide an increase from £400 to £1,000 as the maximum for the offence of falsely pretending to be an inspector under the Health and Safety at Work Etc. Act 1974. This offence is closely linked with others under Section 33(1) of that Act and it is appropriate that the penalties should be kept in line.

On Question, Amendment agreed to.

Schedule 6, as amended, agreed to.

Schedule 7 agreed to.

Schedule 8 [Amendments of Criminal Procedure (Scotland) Act 1975]:

Lord HARRIS of GREENWICH moved Amendment No. 85A: 62, line 38, leave out from ("by") to ("may") in line 40 and insert ("a relevant enactment").

The noble Lord said: This Amendment applies to Scotland and is comparable to and consequential upon Amendments tabled for England and Wales.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendments Nos. 85B to 87D en bloc: 62, line 43, leave out ("£1,000") and insert ("the prescribed sum"). Page 63, line 1, leave out ("any") and insert ("a relevant"). Page 63, line 16, leave out from ("enactment") to ("a") in line 18 and insert ("(in whatever words)"). Page 63, line 30, leave out from ("under") to ("a") in line 31 and insert ("a relevant enactment (in whatever words)"). Page 63, line 37, leave out ("£1,000") and insert ("the prescribed sum"). Page 63, line 46, at end insert—

("( ) In this section— the prescribed sum" means £1,000 or such sum as is for the time being substituted in this definition by an order in force under section 289D(1) below; relevant enactment" means an enactment contained in the Criminal Law Act 1977 or in any Act (including this Act) passed before, or in the same Session as, that Act.").

Page 65, line 10, leave out ("but only if"). line 12, leave out from second ("the") to ("fixed") in line 14 and insert ("prescribed sum (within the meaning of section 289B above) was"). Page 65, line 16, leave out from ("order") to ("to") in line 20 and insert ("substitute for that sum such other sum as appears"). Page 65, leave out lines 22 and 23 and insert— ("(2) Where it appears to the Secretary of State that the difference between a sum to which subsection (3) below applies and the prescribed sum (within the meaning of section 289B 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. 1370
  3. (b) the making of the order or proposed order under subsection (1) above.
(3) This subsection applies to any sum specified in any enactment contained in the Criminal Law Act 1977 or in any Act (including this Act) passed before, or in the same Session as, that Act as—
  1. (a) the maximum fine which may be imposed on summary conviction of an offence triable either summarily or on indictment, 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 summarily or on indictment.
(4) An order under subsection (1) or (2) 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 proviso (b) to section 46(7) of the Criminal Law Act 1977, shall not affect the punishment for an offence completed before that order comes into force.").

Page 65, line 23, at end insert— ("4. In section 312(z) for "£10" there shall be substituted "£25".").

Page 66, transpose the Table to after line 36 on page 65.

Page 67, line 3, at end insert— ("Offences against the Person Act 1861"). Page 67, line 9, at end insert ("Children Act 1948 "). Page 65, line 9, at end insert— ("Midwives Act 1951 Nurses Act 1957"). line 14, at end insert— ("Housing Act 1964 Housing Act 1969").

The noble Lord said: Perhaps I could save the time of the Committee if I move this Amendment and all the Amendments to Schedule 8 en bloc.

On Question, Amendments agreed to.

Schedule 8, as amended, agreed to. Schedule 9 [Minor and consequential Amendments]:

7.28 p.m.

The Earl of MANSFIELD moved Amendment No. 87A:

Page 69, line 20, at end insert— (". In section 70 (restriction on committal after conviction, means inquiry), in subsection (2), after paragraph (b) insert— (c) fix a time and place for the offender to appear before the court and release him on a recognisance, without sureties, conditioned for his said appearance unless the fine is sooner paid: Provided that the court shall not fix such a time and place except in the presence of the offender on the occasion when the fine is imposed.".").

The noble Earl said: The effect of this Amendment would be that a magistrates' court, when imposing a fine, should be able to set a date before the amount of the fine must be paid or the offender must then return, in effect, to explain why it has not been paid. We seem to be getting depleted on our magistrates present in this Committee, but everybody who has had anything to do with the law will know the difficulties with which magistrates are faced when trying to extract money from the defendants they have fined. This is an Amendment which (shall I say?) has occurred to the Magistrates' Association. I beg to move.


I am relieved that the magistrates have left, because I cannot welcome this Amendment with quite the degree of enthusiasm that I have welcomed some of the others. Nevertheless, even on this I do not want to take an entirely negative line. There is a problem here. The proposal which the noble Earl has made is for magistrates to be empowered to fix a date for the re-appearance of offenders who fail to pay a fine imposed on them. We have a great deal of sympathy with that objective. I know that the Magistrates' Association have been keen for some time that such a power should be available. We feel that it would be a useful addition to the powers of fine enforcement. There are, I am afraid, one or two matters of detail on which we would differ so far as the way in which this Amendment is phrased. Nevertheless, I will look at this particular point in rather more detail. I hope to bring forward an Amendment at a later stage of the Bill's progress.


I feel bound to point out that I have been collecting the undertakings of the noble Lord and his noble colleagues as this Bill has progressed. It is fair to say that they number now about 39. Nevertheless, on the noble Lord's assurance——


It I is only the persuasive powers of the noble Earl which has caused us to reconsider so many of these matters, as I am sure he realises.


It was an ancestor of mine who was described as being silver-tongued. I have never laid claim to that appellation and certainly do not in the present circumstances. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The Earl of MANSFIELD moved Amendment No. 87B: Page 69, line 43, leave out paragraph 11.

The noble Earl said: This is an Amendment which I tabled with some sense of doubt; nevertheless, I should like the Government's reaction to it. Paragraph 11 of Schedule 9 provides for magistrates' courts to sit on any day including Christmas Day, Good Friday, or any Sunday. It may be argued—I think rightly—that magistrates already have the power to sit on any day and therefore one asks: why is this enactment put into the Bill? I suppose the answer will be, for the avoidance of doubt. My reply is: There is no doubt, anyway. This provision is unnecessary because there is not any doubt and it may well be deleted in such case. There are those who feel that a provision such as this could be mistaken to be some form of encouragement for magistrates' courts to sit on these very special days which, being human like the rest of us, they do not wish to do unless it is their plain duty to do so. They see no reason why that should be written into the Bill. I beg to move.


I am aware that the Magistrates' Association have some reservations about this provision. They suspect or fear that it may be the thin end of the wedge and could lead to pressure on magistrates to have regular Sunday courts. Let me at once allay those fears, so far as the Government are concerned. The purpose of the provision is simply, as the noble Earl anticipated, to remove doubts about the power of a court to sit on a Sunday if it decides that there are compelling reasons for doing so. The doubts are best summed up in an editorial opinion expressed in Stone's Justices Manual from which I should like to quote: There is no statutory provision preventing a court sitting and adjudicating on a Sunday. However, we are of opinion that except where authorised or required by statute, magistrates should not perform judicial acts on a Sunday, Christmas Day or Good Friday, and it is undesirable and probably improper for a court to sit on a Sunday unless it is a matter of unavoidable necessity. We understand that courts have on very rare occasions sat on a Sunday; for example, where a Saturday court held to deal with people arrested at a Pop Festival has gone on into the early hours of Sunday morning. There have also been occasions when, had the law been clear on this point, it would have been desirable to hold a Sunday court to deal with a seaman whose ship had arrived on Saturday and was sailing on the following Monday, and who was charged with an offence which, though serious, was not likely to be sent to the Crown Court for trial.

This provision in the Bill will enable—I emphasise the word "enable"—a court to be held on a Sunday. It will only be exercisable if the court thinks fit. I can assure the Committee that the Government have no intention of pressing or even encouraging magistrates to hold Sunday courts. The power will be there beyond doubt if circumstances arise such as those that I have mentioned. There is therefore no dark plot to bring in Sunday courts as a regular feature. I hope that the noble Earl will not press the Amendment.


Far be it for me to quarrel with the contents of Stone, an excellent work of reference which in my earlier days I frequently used. Stone does not apparently say that it is anything other than improper for a court to sit on these days, and nobody claims it is wrong in the legal sense for a court to sit. Nevertheless, I am sure that those concerned will derive some comfort from the remarks of the noble Lord, and, on that basis, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord HARRIS of GREENWICH moved Amendment No. 88: Page 70, line 25, leave out ("sum there mentioned ") and insert ("prescribed sum within the meaning of that section").

The noble Lord said: This is a drafting Amendment. I beg to move.

On Question, Amendment agreed to.

7.36 p.m.

The Earl of MANSFIELD moved Amendment No. 88A:

Page 70, line 26, at end insert— ("Section 4 (detention of offenders aged 14 to 20) shall be amended as follows—

  1. (a) in subsection (2)(a) for "three nor more than six months "substitute" six weeks nor more than six months;"
  2. (b) in subsection (2)(b) for "three months "substitute" not less than six weeks nor more than six months.".").

The noble Earl said: This is an Amendment of rather greater complexity than those that we have been discussing before now. It certainly raises much more difficult questions. The effect of the Amendment would permit magistrates' courts to make what I term detention centre orders for a minimum period of six weeks instead of the present minimum of three months. Magistrates feel that this power should be open to them for the following reasons, which are, broadly speaking, threefold. First, it is open to the Executive, so to speak, to shorten the sentences, should they so wish, so that we have a situation where by an administrative order a sentence of detention may be shortened to six weeks, but the courts which impose the sentence in the first place on the merits of the case are denied that right. This is something which I have no doubt some magistrates feel very strongly about. The second matter is that there is presently a grave shortage of places in detention centres, and magistrates' courts feel, rightly or wrongly, that because of the minimum of three months they are stopped from making a detention centre order because they know that there is no place for the offender. The effect is that the course of action which the magistrates' court wishes to take cannot be taken. In other words, justice gives way to expediency.

This is not the only part of our law where justice has to give way to expediency; but I urge upon the Committee the thought that this is unnecessary in this case. Shorter sentences would relieve overcrowding in detention centres and allow magistrates' courts to make use of their powers in cases which they thought fit, where at the moment they are physically stopped from doing so by the shortage of places.

The third matter which I would raise is this. As I understand it, there is remission for good conduct, and I suppose it is essential to retain that in order that the authorities at the detention centre should have some sort of control over the boys in their care. Nevertheless, I believe the practical effect under the rules would be that if the magistrates passed a three months' detention order, with remission, the offender would serve a total of six weeks. I think I am right about that but, if not, the noble Lord will no doubt correct me. That would still give the offender a lesson—and indeed a short sharp lesson, which is the point of the detention centre—but it would be long enough for the authorities there to do some good and to make some impression for the future. I think that is as far as I need take the argument at this stage. I beg to move.

7.42 p.m.


In considering whether there should be a sentence shorter than the existing three months, we have to consider the objects of detention centre training and what would be accomplished by a shorter period. With remission, a 17 to 20 year-old, sentenced to three months in a detention centre, serves two months. A 14 to 16 year-old serves only six and a half weeks. The proposed Amendment would provide for an additional sentence of six weeks which, with remission, would give a training time of four weeks and three weeks respectively. The question which the Committee have to face is whether such a short period of detention is desirable.

Your Lordships may recall that the Advisory Council on the Penal System carried out a fundamental review into detention centre régimes, and the recommendations made in the 1970 report of their sub-committee, which was chaired by a former Member of your Lordships' House, the then Lord Bishop of Exeter, have been the basis of our policy since that date. I think it is right to say that considerable progress has been made towards implementing those recommendations. The aim has been to make all aspects of the detention centre regime constructive, and, on the establishment of mutual respect, to have discipline increasing.

To that end, staff have been encouraged to get to know individual trainees and to prepare them as far as possible for return to the community. There has been an increased emphasis on education, particularly remedial education; and I accept that the increase in remission in junior centres in 1975 meant that we now have only six and a half weeks in which to achieve our objectives with the younger boys. But members of the staff have tried very hard, and with considerable success, to maintain standards. Any further reduction in training time would make it very difficult indeed for that constructive approach to continue. An effective sentence of 4 to 3 weeks' detention would be too short a period in which to build up any kind of positive relationship. But if the teaching staff could achieve very little in the available time, and although many of the boys are certainly in need of remedial treatment, it would be difficult to motivate them even towards remedying their deficiencies on release. The discipline staff would be increasingly occupied with reception and discharge procedures, and would have time only for minimal involvement with boys as individuals. In circumstances of this sort, they could hardly avoid seeing their role in a negative light.

While these remarks apply to both senior and junior centres, we would see very little need for a six-week detention centre sentence for the 17 to 20 age group. Your Lordships will be only too well aware of the increase in the junior population at Prison Department establishments as a whole; but to take the point made by the noble Earl, that does not at present apply to the detention centre population, and we are at the moment able to accommodate all those whom the court wish to send. We are not, therefore, forced to consider shorter sentences as a matter of expediency. If, however, the magistrates' courts were empowered, as a result of the other part of this Amendment, to pass sentences of six months on the 14 to 16 age group, the situation could be very different. Obviously I have no means of assessing how frequently the power might be used, but if six months' sentences were available to the magistrates for this age group, we should soon have to tell the courts that the centres were full and to ask them to refrain for a period from making orders of any length. That, I think, would be a serious matter and one which we should do everything possible to avoid.

In the light of what I have said, I hope the noble Earl will not press his Amendment on two counts: first, the introduction of shorter sentences of detention could mean, and I think probably would mean, a return to a less constructive regime, which was explicitly rejected by the Advisory Council on the Penal System. Secondly, to give the magistrates' courts the power to pass a six months' sentence for those in this age group could well overload the system, and I am quite sure we all want to avoid that.


I am very well aware of the force of the remarks made by the noble Lord, Lord Harris, and of course it is very difficult to argue against them. One wonders really what one can do with any child for three months, let alone six weeks. Nevertheless, there are those who feel it would be a useful extension of the armoury, so to speak, of the powers of a magistrates' court to make a detention centre order for six weeks rather than for a minimum of three months; and I have no doubt they may well be a little disappointed—I will put it no higher—at the slightly predictable attitude of the noble Lord. As I say, one is a little disappointed, but I personally see the force of the argument and, in the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.49 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 88B:

Page 70, line 26, at end insert— (". In section 12(1) (return to borstal institution on re-conviction) for paragraph (b) (which relates to the re-conviction of a person who has become unlawfully at large from such an institution and has not returned or been returned thereto) substitute— (b) being detained or liable to be detained in a borstal institution,".").

The noble Lord said: I beg to move this Amendment, which is necessary to deal with a practical problem involving the return to borstal under Section 12 of the Criminal Justice Act 1961 of offenders convicted of offences committed while unlawfully at large. At present the courts have no power to return an offender under that section if he has, as often happens, already been returned for borstal by the police. The Amendment therefore makes good this omission and provides the power to return to borstal an offender convicted of another offence during the currency of his borstal sentence. I beg to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 89:

Page 72, line 14, at end insert— ("1. In section 43(2) (penalty for contravention of designation order having effect by virtue of section 39(1)(a)) the words from "in the case of "to" carriageway "(the consequential omission of which was inadvertently not provided for in column 5 of Part II of Schedule 5 to the Road Traffic Act 1974) shall be omitted.").

The noble Lord said: Perhaps I should speak to Amendment No. 98 at the same time as this Amendment. This is a minor amendment to Schedule 9, with a consequential addition to Schedule 10, designed to rectify an inconsistency between two columns in Schedule 5 to the Road Traffic Act 1974, which amended Section 43(2) of the Road Traffic Regulations Act 1967. I beg to move.

On Question, Amendment agreed to.

7.51 p.m.

The Earl of MANSFIELD moved Amendment No. 89A: Page 74, line 33, leave out from ("for") to end of line and insert (""within the period of fourteen days beginning with" substitute "at the next normal sitting of the court after"").

The noble Earl said: This Amendment seeks to change the period within which a court may review what it has done and, in effect, to re-open a case for the purpose of rectifying a mistake or something like that. Under the Bill, the Criminal Justice Act 1972 is being amended, in effect, by increasing the time limit for review from 14 days to 21 days. It has been urged upon me that there are magistrates' courts which sit only once a month—and indeed there are—but I should hate to be asked for instances now. But I am informed of this rather leisurely life which apparently goes on in some parts of England and Wales. In those instances, it would obviously be difficult for such a court to rectify its mistakes—and I say in parentheses that if it sits so infrequently it will probably make some— at its next normal sitting, without requiring a special sitting if the 21-day rule were to be applied, and I therefore gave a little thought to the problem. I say that because, on this occasion, the wording of this Amendment is my own drafting—I see that the noble Lord, Lord Janner, is not in his place—and it may well be that somebody will find fault with it. But it is apparently something which is needed by way of an amendment to the Bill. I beg to move.


In view of the fact that the noble Earl indicated that he had drafted this Amendment himself, I regret to say that I have to begin by saying that it is defective in form, because, if made as it stands, it would oblige a court which sits daily to vary its decision the following day or not at all. I assume, however, that that is not what the noble Earl intended, but I make that point by way of introduction.

Apart from this consideration, however, we see objections in principle to the lengthening of the period within which a magistrates' court may change its mind to more than 21 days. These objections are based both on the original purpose of the provision, which was introduced by the Criminal Justice Act 1972, and on its interaction with the prescribed period for an appeal to the Crown Court.

The provision was intended to make possible a quick remedy if a mistake came to light directly after a magistrates' court had made a decision; for instance, when a defendant accidentally failed to appear and the court went on to deal with him in his absence, or if a fine higher than the prescribed maximum was imposed. A time limit of 14 days was chosen to allow for difficulties in reconvening the bench. The result of this Amendment, where the magistrates' court met infrequently and the Amendment was therefore used, would be that the defendant would have to wait over three weeks before the mistake would be put right. This would largely nullify the original objection of a quick remedy.

A further difficulty is that since three weeks is the prescribed period for lodging an appeal to the Crown Court, if a defendant had to wait more than three weeks before getting a mistake rectified by the magistrates, he would be placed in a dilemma on where to seek his remedy. He would almost certainly be advised, in that case, to lodge an appeal to the Crown Court, and thus the whole arrangement would be frustrated.

Moreover, notwithstanding what the noble Lord said—and I look forward to hearing about these magistrates' courts which sit at monthly intervals—I am sure he will accept that few courts sit so infrequently, and where they do a special sitting is the way out of this difficulty and not an Amendment to the law, as is suggested in this Amendment.


I must take refuge in the time honoured phrase, "I will write to the noble Lord". But I see the force of the noble Lord's remarks, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.56 p.m.

The LORD CHANCELLOR (Lord Elwyn-Jones) moved Amendment No. 90:

Page 74, line 36, at end insert—


  1. 1. In section 9(4) (abatement of salaries of holders of certain judicial offices, including the stipendiary magistrates mentioned in subsection (1)(e) and (f), by reference to pensions payable in respect of any public office in the United Kingdom or elsewhere), after "United Kingdom or" insert ", except as respects any holder of judicial office mentioned in subsection (1)(e) or (f) above,".
  2. 2. Paragraph 1 above shall be deemed to have had effect as from the passing of the Administration of Justice Act 1973.").

The noble and learned Lord said: It may be convenient also to speak to Amendment No. 106 in this connection. This Amendment is intended to put right a drafting error which occurred as long ago as 1973.


I wonder who was Lord Chancellor then.


I would not venture to guess, or to suggest anything so unfriendly as that it might have been the noble and learned Lord himself. This drafting error in the Administration of Justice Act 1973 has the result, unless it is amended, of penalising stipendiary magistrates who have served overseas in public office in respect of which they receive a pension.

The salaries of stipendiary magistrates are governed by Section 9(4) of the 1973 Act, which provides that if the stipendiary is in receipt of a pension in respect of any public office which he has held, either in this country or elsewhere—and I underline those words—his salary shall be abated by the amount of the pension. The same provisions also apply to the higher judiciary, but not, however, to circuit judges, whose salaries are abated only to the extent of any pension derived from a public office in the United Kingdom, and that is provided for by the Courts Act 1971.

The higher judiciary have been liable to have their salaries abated also in respect of pensions from overseas, as well as in the United Kingdom, and that is provided for by the Judicial Pensions Act 1965. This has not, in practice, occurred, since no one to whom it could apply has been appointed to the High Court Bench. Until the 1973 Act this has never applied to stipendiaries, nor was it intended that the Act of 1973 should do so or make any change in their position. Unfortunately, owing to an oversight, the words "or elsewhere" which followed "in the United Kingdom" were extended also to stipendiaries by that Act.

I am sorry to say that this mistake, for which my Department and the draftsman of the 1973 Act must accept responsibility, went undetected until very recently, with the result that four of the metropolitan magistrates now holding office are subject to abatement of their salaries by the amount of pension they receive in respect of public offices they held overseas, in Commonwealth countries, in Africa, in Asia and in the Pacific. The result in one case would be that the magistrate was practically doing the work for nothing; or, at any rate, for very little. Had they been circuit judges and not stipendiaries, they would not have had to suffer these deductions. I have identified one case where the impact of the abatement would be severe. Your Lordships may think that it would be unfair to allow those concerned to be prejudiced by what was an inadvertent error in the drafting of the 1973 Act. A further difficulty is that the present provision makes it extremely unattractive—indeed, almost impossible—for any one who has had pensionable service in a public office overseas to accept appointment as a stipendiary, unless the amount of the abatement is very small. This, I fear, would result in our being deprived of very valuable candidates for the stipendiary bench. It is in the public interest that suitable applicants should not be discouraged.

The effect of the Amendment will be that any metropolitan magistrate, or stipendiary magistrate serving outside the metropolitan area, whether holding office now or in the future, will be subject to an abatement of salary only in respect of a pension received from a public office in this country and not from one which he held overseas. The Amendment will therefore place stipendiary magistrates on the same footing in this respect as circuit judges. I beg to move.


I think I need only say that I agree with the noble and learned Lord the Lord Chancellor.

On Question, Amendment agreed to.

8 p.m.

The Earl of MANSFIELD moved Amendment No. 90A:

Page 75, line 46, at end insert— ("Provided that where an offender has been convicted of a further offence committed during the period of deferment for which he is committed for sentence to another court the above restriction on committal for sentence in respect of an offence for which sentence has been deferred shall not apply.").

The noble Earl said: This is a somewhat technical matter. Subsection (6) on page 75 amends the powers of the Criminal Courts Act 1973. As I understand the position, it perpetuates what I might describe as the ruling in a case called Gilby which was reported in 1975. Magistrates view this with some anxiety, if not alarm. Their association feels that it may produce a practical sentencing difficulty. Already the effect is that some magistrates now hesitate to defer the passing of sentence.

To quote an example, if there is a case of a young man of previous bad character who is eligible for borstal training and who is convicted of an imprisonable offence at a magistrates' court, he may persuade the court to give him a further chance—by promising to make restitution, or whatever it happens to be—and the court defers passing sentence for a period, which it has power to do. If during the period of deferment that offender is convicted again of an imprisonable offence, the magistrates' court may then commit him to the Crown Court with a recommendation for borstal training in respect of the subsequent offence. However, under the rule in Gilby's case, and what will now be the statutory rule in this Bill, that court must also deal with him in respect of the case where sentence was deferred.

In these particular circumstances, therefore, the sentencing of the offender is placed in two sets of hands, if I may use the expression. The effect is that the magistrates' court must either pass a nominal sentence for the first offence, which it is now, under this enactment, bound to pass—and if it does that the motive will be to allow a freer hand for the Crown Court before whom the offender will eventually appear—or, alternatively, deal with the deferred case on its merits and risk embarrassing the Crown Court, who eventually will dispose of the subsequent offence.

In the circumstances, it seems logical and right to preserve the right of a magistrates' court to commit for sentence on the first offence in the event of conviction for a subsequent imprisonable offence during the period of deferment. I venture to suggest that the original decision in Gilby was something of a surprise when it came out and has produced, perhaps, a result which was neither contemplated nor desired. I beg to move.

8.6 p.m.


As the noble Earl has indicated, his Amendment would modify the effect of the decision in Gilby's case, which this Bill seeks to embody in Statute. The matter is not an easy one to resolve, but the Government take the view that the decision of the court in Gilby's case was correct. The magistrates have to consider whether to commit for sentence on the basis of the nature of the offence and the character and previous history of the offender. Clearly that is a matter for them. All the relevant data are available at the moment of conviction and if, in all the circumstances, the court judges the case to be appropriate for sentence by the Crown Court, then it should commit for sentence and leave to the Crown Court the decision whether or not to defer passing sentence under Section 1 of the Powers of Criminal Courts Act 1973.

While subsequent misbehaviour may properly influence the level of sentence imposed by the deferring court—within, of course, its own powers—it should not reopen the initial decision that the case was not of such a kind as to merit a more severe sentence than it was within the power of the magistrates' court to impose. The Lord Chief Justice, whom we consulted, thought that while Parliament may not have intended the result produced in Gilby's case it might nevertheless be quite a good thing to require justices to answer the question, Commit or no? before they deal with deferment.

I accept at once that the arguments are by no means all the same way. In the case of a very serious offence committed during a period of deferment, it might be thought that the offender should be exposed to the severer penalties available in a Crown Court. But if the offence was not thought serious enough to warrant committal for sentence in the first place, it seems on balance wrong for something which happened subsequently to open up that possibility.

A further and rather different matter is the practical problem for a magistrates' court in dealing with a deferred sentence at a time when the offender is awaiting sentence in the Crown Court for another offence. In our view, the noble Earl's Amendment is not really necessary to deal with this situation. Where the magistrates' court, dealing with a subsequent either way offence, is the same as the magistrates' court which deferred sentence for the earlier offence it may, if it commits for the second offence, commit also for the first offence under Section 56 of the Criminal Justice Act 1967, which is indeed extended by Clause 37 of the Bill. This section would not be affected by the restrictions on committal for sentence contained in the new subsection (8) of Section 1 of the Powers of Criminal Courts Act 1973. Where a different magistrates' court commits for the second offence, the Crown Court will have power to deal with the earlier offence under the new subsection (4A) of Section 1 of the Powers of Criminal Courts Act.

Under both of these procedures the powers of the Crown Court in dealing with the offence for which sentence was deferred are limited to those of the magistrates. The noble Earl may not, I think, have realised the extent to which the practical problems of sentencing by different courts can be overcome under the powers which are already contained in the Bill. On the more fundamental issue—that is, the power to commit during or at the end of a period of deferment with a view to an enhanced sentence—we think on balance, and only on balance, for the reasons I have given, that it would be better not to erode the principle established in Gilby's case. I hope that on that basis the noble Earl will agree not to press his Amendment.


I shall need to study in the Official Report what the noble Lord has said in order to understand it in any detail, but one matter which I had gathered from what he has said is this. It seems to me most unlikely that what he proposes in this Bill will do anything to reduce what I might call the caseload of the Crown Court, because a result of this provision is that there will certainly be more cases going up to the Crown Court. That will bear upon public funds and of course that is, if not the theme of this Bill, certainly the theme of a large part of the Bill, to reduce the number of cases going to the Crown Court and to reduce the amount of money which has to be spent, both on the Legal Aid Fund and on the administration. I may well return to this question at a later stage, but for the nonce I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 9, as amended, agreed to.

Schedule 10 [Repeals]:

8.11 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 91:

Page 79, line 42, at end insert—

"51 & 52 Vict. c. xxxviii. City of London Fire Inquests Act 1888. The whole Act.")

The noble Lord said: This Amendment is consequential on Amendment No. 59. It deals with the repeal of the City of London Fire Inquests of 1888. I beg to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 92:

Page 79, line 42, at end insert—

("52 & 53 Vict. c. 63. Interpretation Act 1889. In section 27 the word "coroner".")

The noble Lord said: This is a technical Amendment to the Interpretation Act 1889 to take account of the fact that coroners will no longer be responsible for committing any person for trial. I beg to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendments Nos. 93 to 95 en bloc:

Page 79, line 47, at end insert—

"15 & 16 Geo. 5. c. 86. Criminal Justice Act 1925. Section 28(3).")

Page79, line 52, at end insert—

("10 & 11 Geo. 6. c. 14. Exchange Control Act 1947. In Part II of Schedule 5, paragraph 2(3)")

Page 80, line 42, at end insert—

"7 & 8 Eliz. 2. c. 66. Obscene Publications Act 1959. In section 2, subsection (2) and in subsection (3) the words "on indictment".
8 & 9 Eliz. 2. c. 57. Films Act 1960. Section 45(3)")

The noble Lord said: I beg to move Amendments Nos. 93, 94 and 95 en bloc because they go with Amendment No. 67 which has already been agreed by the Committee.

On Question, Amendments agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 97:

Page 80, line 57, at end insert—

("1966c. 27. Building Control Act 1966. Section 1(8).
1966c. 34. Industrial Development Act 1966. Section 8(10).
1966 c. 36. Veterinary Surgeons Act 1966. Section 19(2). Section 20(6).")

The noble Lord said: This Amendment, again, goes with the last series of Amendments. I beg to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 98:

Page 81, line 11, column 3, at beginning insert—

"In section 43(2), the words from "in the case of" to "carriageway".").

The noble Lord said: This Amendment is consequential on Amendment No. 89 which deals with a defect in the Road Traffic Act, 1974. I beg to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 99:

Page 81, line 17, column 3, at end insert—

("Section 91.")

The noble Lord said: This, again, deals with the same point that was dealt with in Amendment No. 67. I beg to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendments Nos. 99A and 99B en bloc: Page 81, line 23, column 3, after ("to") insert ("the Offences against the Person Act 1861,"). Page 8, 1line 27, column 3, after ("1948") insert ("section 8 of the Midwives Act 1951, section 9 of the Midwives (Scotland) Act 1951,").

The noble Lord said: I can deal with Amendments Nos. 99A and 99B at the same time. These are consequential on those to Schedule 6, increasing maximum summary fines under the Offences against the Person Act 1861, the Midwives Act 1951 and the Midwives (Scotland) Act 1951. I beg to move.

On Question, Amendments agreed to.

Lord HARRIS of GREENWICH moved Amendments Nos. 100 to 105 en bloc:

Page 81, line 42, column 3, at end insert—

("In Schedule 8, paragraph 8.")

Page 81, line 44, at end insert—

("1969 c. 51. Development of of Tourism Act 1969. In paragraph 3 of Schedule 2, sub-para-graph (2) and in sub-graph (4) the words "2 and", "the Director of Public Prosecutions or" and "as the case may be ".")

Page 81, line 57, at end insert—

("1969 c. 56. Auctions (Bidding Agreements) Act 1969. In section 1, sub-sections (2) and (4).")

Page 82, line 13, at end insert—

("1972 c. 60. Gas Act 1972. Section 43(2)(b)and the word "or" preceding it.
1972 c. 63. Industry Act 1972. In paragraph 4 of Schedule 1, sub-paragraph (2) and in sub-paragraph (5) the words "the Director of Public Prosecutions" where first occurring")

Page 81, line 16, at end insert—

("1973 c. 43. Hallmarking Act 1973. In paragraph 2 of Schedule 3. sub-paragraph (2) and in sub-paragraph (5) the words "(2) and".")

Page 81, line 55, at end insert—

("1974 c. 40. Control of Pollution Act 1974. In section 87(3) the words from "section 3(2)" to "18(2) of this Act or under".")

The noble Lord said: These Amendments are consequential. I beg to move.

On Question, Amendments agreed to.

Schedule 10, as amended, agreed to.

In the Title:

The Lord CHANCELLOR moved Amendment No. 106: Line 16, after ("amend") insert ("section 9(4) of the Administration of Justice Act 1973,").

The noble and learned Lord said: This Amendment was dealt with in relation to Amendment No. 90. I beg to move.

On Question, Amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with the Amendments.