§ 4.24 p.m.
§ Report stage resumed on Amendment No. 36.
§ The Earl of MANSFIELD
My Lords, when he rose earlier I thought that the noble Lord, Lord Harris, was going to reply to the debate, and I was going to complain that the Lord Chancellor's largesse had not extended to supplying either my noble and learned friend or myself with a copy of the letter that the noble Lord, Lord Wigoder, is complaining 1189 about. In order that the official Opposition should have a chance to comment on it, I would ask that if there is a copy we might see it. If there is not a copy perhaps one might be procured.
§ Lord HARRIS of GREENWICH
My Lords, I apologise. I will gladly speak now. There is a difficulty about circulating all letters. I have written a substantial number of letters to Members in all parts of the House, and indeed have spent a great deal of time doing nothing else in recent weeks. I certainly apologise if somebody who would have liked this information has been denied it because of any act of inadvertence on my part. It is only fair to say that when this point was put to me I suggested that any noble Lord who might wish further information might put down a Question. Nobody troubled to do so. I make no complaint about that. Nevertheless it was my suggestion on the last occasion because it occurred to me that, given the fact that we spent a lot of time on this issue, it might have been of assistance to the House for a large number of your Lordships to have this information.
We can start off on a happy note, that the noble Lord, Lord Wigoder, and the Government agree on at least one aspect of this matter, and that is the first section of his proposed Amendment. Amendment No. 38 is designed to cover very much the same ground as the noble Lord's Amendment. It is more elaborate, so as to leave no room for doubt as to the extent of the rule-making powers, but these differences are mainly questions of technical legal drafting and not of substance. Therefore, on the first aspect of the matter there is no substantial difference between the noble Lord and the Government.
The main reasons why the Government prefer a rule-making power is that it gives us the necessary flexibility both to devise detailed arrangements in consultation with people and organisations who have practical knowledge of judicial processes, and to adjust these arrangements in the light of experience. The Government do not think that a standardised scheme for advance disclosure is ready-made and to hand. The James Committee did not purport to produce such a scheme, and their outline proposals 1190 have come in for some criticism in detail. It is hardly surprising if we take in to account the substantial variety of cases which in fact come before magistrates' courts. We shall certainly need to discuss this matter in some detail with magistrates and their clerks, with the police, prosecuting solicitors, and others with practical experience in these fields.
Now I come to the point on which there is a substantial difference between the Government and the noble Lord. This arises over the second part of his Amendment which requires the rules to be brought into operation within two years of the coming into force of the Bill. As I said during the debate in Committee, there is no doubt that the full implementation of the James Committee recommendations would be very expensive, both in terms of money and in terms of police resources. One estimate which I made was of the order of £4 million a year. I say quite bluntly to the noble Lord that I waited for him to give some estimate of the cost of his proposals. He has apparently made some form of arithmetical calculation of the number of such statements that might be expected, but he did not disclose it. I do not criticise him in any way for that omission. Nevertheless, I should like to know the public expenditure implications of his proposal because if he is making, as I am sure he is, a serious proposal to the Government, the costing of his proposal is a matter on which we should have to form a view.
Our view is still that the estimate of £4 million is correct. But even if it was significantly lower, even if we concede part of the case of the noble Lord, we would not be able to accept his Amendment, and for a reason which I shall endeavour to persuade the House is right. The noble Lord has recognised in his Amendment, and indeed in his speech, that the financial constraints are central to this matter, and it is one of the reasons why he suggested that the matter should be put off for two years.
By setting an arbitrary time limit of this sort we should be deluding ourselves as to the true nature of the economic problems facing this country. It may indeed be that the economic situation in two years' time will have greatly improved, and I am sure that noble Lords in all parts of 1191 the House hope that the economic problems which have been facing the country in the last few years will have been dissipated to a significant degree within the next two years. But we cannot possibly be sure that we will be in such a happy position. What happens if the economic problems in two years' time are still significant? We should then have an automatic trigger mechanism in the Bill insisting that of all the public expenditure priorities facing the country, this one must take absolute priority over everything else. Why? On what possible criteria would it be right to say that this, important though it is—I would in no way underestimate the value of a proposal of this kind—should alone have this urgent priority?
I pointed out on the last occasion that the pressure, whatever it may be, will fall to a very large extent on civilian employees in the police authorities. They will do a great deal of the work; not only they, because others will be involved as well. These are classes who are being harshly restricted in terms of their numbers at the moment. In my view it would be an act of gross irresponsibility for this House to pass an Amendment of this sort which would pre-empt resources in the way the noble Lord, Lord Wigoder, has put forward.
Of course there is an argument for accepting the principle of his Amendment, just as there are a large number of other claims on public resources which also deserve a high measure of responsibility. If one has worked in any Government Department—in education, health, or housing—one is aware of the urgent matters which require public expenditure, and in all those areas public expenditure is rightly being held back because there is no chance of this country getting out of its economic difficulties unless public expenditure is kept under rigid control.
On the last occasion I said, and I apologise for repeating myself, that there is no point in this House or people outside being in favour in principle of controlling public expenditure, as the noble Lord said he was, if when it comes to an absolute and specific proposal on which one feels strongly one first says that the proposal will cost a great deal less than the Government say it will, and secondly, that it is so 1192 obviously desirable that it must take absolute priority over everything else. As I have indicated, it is impossible to preempt resources in the way the noble Lord has suggested in the Amendment. Even if he is right and the figure is half what I said it would be—I said it would be £4 million, but let us say it would be only £2 million; let me give the noble Lord part of his argument, although I do not concede that he is right and I am wrong—I am afraid we could not possibly say that an Act of Parliament passed this year should automatically ensure that in two years' time there will be an addition of this sort to public expenditure. That would not be a responsible decision.
I accept that Lord Wigoder and many others in this House believe that this is an urgent claim as far as public expenditure is concerned, but if any Government were to accept a claim of this kind it would be followed by a series of demands in many other areas, which, in my view, would be another way of ensuring that public expenditure was not controlled as it must be.
§ 4.35 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, before we become too excited about this matter and accuse one another of irresponsibility, let me make some comments on the difference between the Government Amendment and that proposed by the noble Lord, Lord Wigoder, neither of which will involve a penny of public expenditure. I should acknowledge that the Government have come a long way towards us. The justice of the case which we have been making all through the Bill, and which, all my professional life, or very nearly all of it, I certainly have felt to be a blot on our system of jurisprudence in front of magistrates, has been accepted by the Government. That is a great step forward and I should acknowledge our gratitude for that.
I come to the critical part of what I have to say. Both Amendments, Nos. 36 and 38, give a rule-making power; we more or less agreed on that at the last stage of the Bill. The first difference, which involves no extra expense at all, is that the Government Amendment limits the power of rule-making to the class of case which can be tried either way, whereas Lord Wigoder's 1193 Amendment allows the rule-making power to extend both to summary trials and to trials which can be tried either way.
Obviously, once one has seen that there is this double class of case, I do not see why the rule-making power should not extend to both, although on the clear understanding that it might be exercised at different times and in different ways regarding either. That cannot involve us in one pennyworth of expenditure; we are not here on contentious ground at all. I feel almost as strongly about the summary case as I do about the two-way case, and I believe that the Minister would allay a great deal of my doubts about this matter if he could promise to come, at a later stage here or in another place, a step further along the road which we are inviting him to take.
I tried my hand at drafting an alternative form of Amendment, but it did not meet with much approval either from my noble friend Lord Mansfield or Lord Wigoder, so I dropped it. However, if I had put that Amendment down it would have enabled me to say something I want to say now. Lord Wigoder rightly said that although what I would call decent prosecuting counsel, decent police and decent prosecuting solicitors give defendants' counsel, at any rate on the day of the hearing and before the case is called on, an opportunity of getting the information which is in question in this series of Amendments, many of them do not, and who blankly refuse to do so—not because they want to save money or because it would involve them in a ha'p'orth of trouble if they were to do so but, frankly, because they prefer to catch the defence on the hop. Let us not blind ourselves to that; I am speaking from 50 years' experience of summary jurisdiction courts. If my Amendment had been tabled, although it would have contained the rule-making power to regularise and proceduralise the duty which the great majority of us want to see, it would have laid a duty on the prosecution, at least at the time of the hearing, to do what decent prosecutors do already.
Thus, the point I make to the noble Lord, Lord Harris of Greenwich, on these Amendments is that, apart from the choice between the two Amendments, I would like him to go away with the thought that somewhere in the Bill, somewhere in a 1194 practice note or somewhere in some direction given to prosecuting authorities, it should be laid down that even if it is too expensive to do it in advance by photocopying the statements or providing a summary of the case, they should be under an obligation on request to should the substance of the material to the defence, even at the time of the hearing.
There is all the difference in the world in defending a person—even on a case of careless driving—if one knows what is the substance of the case. To get one's client's instructions on that case so that one can cross-examine the witnesses intelligently instead of just thrashing about; to get one's client who may not always be bright enough, without assistance, to identify the real points of his evidence or to get round to the idea that the prosecuting witnesses are not all committing perjury or conspiring against him; to get him to bend his mind to the real crux of the case can be invaluable. I should like to see it laid down as part of the ethics of the profession—solicitors and counsel—and part of the instructions to prosecuting policemen, that they must do that any rate at the hearing before the case is called on. Why can we not go as far as that? If that were done, many of my anxieties about this matter would disappear. I quite see the noble Lord's point about expenditure: perhaps it would cost more than we can afford. I do not know, but I should feel a great deal happier if the noble Lord would respond to what I have just said.
§ Lord GARDINER
My Lords, when, at the Committee stage of the Bill, I found it very difficult to give credence to the figure of £4 million, my noble friend Lord Harris of Greenwich was kind enough to say that he would write and let me know how that figure had been arrived at. I should like, first, to thank him for his courtesy in having done so. When I found, rather to my surprise, that the noble Lord, Lord Wigoder, had not received a copy, I had one made for him, but I am afraid that I rather assumed that the Opposition would have received one.
I find myself in general agreement with everything that the noble Lord, Lord Wigoder, said; with, I believe, everything that the noble and learned Lord, Lord Hailsham of Saint Marylebone said; and 1195 in substance, with what my noble friend Lord Harris said. That is to say, I believe that we all agree that, as the noble and learned Lord, Lord Hailsham, said on Committee, the provision of information as to what case one has to meet is not merely a question of money: it is a question of justice. I believe that we all agree that this should at some time be done. I think, too, if I may respectfully say so, that the noble and learned Lord is right in preferring the more extended form not limited to each-way cases, and I accept what my noble friend has said in explaining that the Government are unable, for financial reasons, to do this now.
So the only point left would seem to be: should it be a discretionary power given to some Committee to do or not as it thinks fit, or ought we not to include a provision in the Bill providing for it in the form suggested by the noble and learned Lord, Lord Hailsham, to be brought into effect at such time as the Home Secretary may think fit? On the question whether it should be discretionary or should be in the Bill, I would respectfully remind the House that the James Committee, which gave much thought to this whole matter, also thought about non-statutory guidance, but said:It is true that these allow for more flexibility, but we consider that when such an important change in procedure is being made the certainty of a statutory provision is preferable. Moreover, a large number of prosecutions are undertaken by 'private' prosecutors, such as large stores and local authorities, and it is essential that any change should apply equally to those prosecutors as well as to police prosecutions, and legislation would be necessary to ensure this.The Home Office has consulted us about a circular that it is proposed to send to chief officers of police encouraging a greater measure of advance disclosure of the prosecution case in summary trials. We welcome this proposal—the aim of which is very much in line with our own thinking on the subject—as a means of making progress in advance of legislation; but, for the reasons we have given, we consider that in the longer term it is preferable for the procedure to be regulated by legislation.So, my Lords, if we can arrive at a compromise on the lines that have been generally suggested, I hope that we shall do it on the footing of inserting a clause into the Bill, thus making a statutory provision, to be brought into force on such a date as the Home Secretary may decide.
§ 4.47 p.m.
§ Lord HALE
My Lords, as this is Report stage, if I am going to say anything I must say it now. My attention was called to this point and I shall say what I have to as briefly as I can. There are certainly cases where this is of vital importance and has been for a long time. This is the opportunity for considering this proposition. There may be many cases where such a request would not be made. As the noble Lord, Lord Wigoder, has said, if a plea of guilty were contemplated, it would be improper for a defending counsel to seek additional information in order to avoid pleading guilty when his client had told him to do so. What is necessary, particularly in police prosecutions, however, is to know where the police were stationed when they claimed to have seen an offence.
Take a single example which was reported quite recently—and it may be that it was incorrectly reported or that they had information, so I do not quote it particularly. If the police come to a man who has just emerged from the office where he is employed; are dressed in plain clothes and say, "We have seen you trying to snatch women's bags and so on" and, if the defence is to be that the man who is employed in a highly responsible position and has an unblemished character had only just come out of the office and his movements could be timed, the defence should be able to say, "We want to know where the police were." If the police were looking out of a second or third floor window of a shop nearby, keeping general observation looking for offences, then the defence is entitled to know that. In the case to which I refer, the magistrate was finally obliged to go to look at the premises and he came immediately to the conclusion that the police could not possibly have seen what they said they had from where they were and, indeed, that it was extremely doubtful whether they could see the accused at all.
As the noble and learned Lord, Lord Hailsham, has said—and I entirely agree with him—the prosecution in many courts is not in the least anxious to help the defence if it can avoid it, though there are many cases where the prosecution behaves admirably. I believe that this is important. I do not want to repeat myself, but I do not think that it is proper 1197 that the Government should come along and say, as regards every social measure, "This is going to cost a lot; we can't give figures or an estimate." If we are to have a Rules Committee, this is a matter which is within its competence. I agree with the noble and learned Lord, Lord Hailsham, that the response to the, in some respects, very reasonable observations of the noble Lord, Lord Harris, may be an attempt to reconsider whether one can, by additional wording, limit the requirement to supply copies of the evidence to cases where it appears that the information is essential to the defence. It might well be that, if a prosecution failed to comply with the requirement, the defence could automatically apply for an adjournment, though that is an expensive and not very sensible method. But I believe that a refusal to supply could be dealt with in the rules made by the magistrates' rules committee in due course. Proper provision should be made to raise the question of that refusal and its reasonableness in any manner that may seem appropriate to the makers of the rules.
Finally, I want to say that the noble Lord, Lord Harris of Greenwich, has raised clearly in his remarks the whole question of legislation, and he reserves the right to come here and say to the man who is passionately keen on the arts, "We really cannot spend anything on the arts and you must not try to improve things"; or in general to say, "We cannot improve". Consider the position if he is going to apply this kind of reasoning to Concorde; if he is going to recall the agonising hours we spent on the Community Land Bill, when, with a heavy heart, I trooped through the Lobby voting "Content" every time; if he is going to recall the days and the weeks we spent on a Race Relations Bill, in relation to which I was grateful to hear the noble and learned Lord, Lord Hailsham, at the end, express quite frankly some reservations which I had shared completely from the start about whether the things was really worth doing at all and what it would cost.
Consider also that after the two long reports on criminal law reform from distinguished, admirably manned committees, which obviously have sought to 1198 introduce essential measures in our administration of justice (which is having to stand some very hard knocks at the moment and which is going to face new and difficult problems), the position of the police and the courts is such that no one looks at the future with entire confidence in the existing work. This House is normally deprived of all judgment on questions of expenditure, and it may be irrelevant, but I am tempted to point out, that our financial position has steadily decreased since 1910 when the House was deprived of any financial jurisdiction. In all those circumstances, I should have thought that such an Amendment can best be made by the Commons who are now responsible for judgment on financial requirements.
§ 4.53 p.m.
§ The Earl of MANSFIELD
My Lords, I wonder whether it might quicken the labours of the House if I were to suggest a course of action for this afternoon which I believe commends itself to my noble and learned friend as well as to me, and therefore might have some bearing on the future action of the noble Lord, Lord Wigoder, so far as this Amendment is concerned. I must remember that I subscribed my name to the Amendment, and I think that we would all agree that to a very large extent we are pushing at an open door, or a door which is three-quarters of the way open, and there are but few matters which remain between us.
The first concerns whether summary trials should be brought into the Amendment, or a future Amendment, or an Amendment to the Amendment at a later stage of the Bill. A certain amount has been said about that already and my own brief observation would be as follows. Quite a number of much more serious and more complex offences have been added in the Schedule to those which can be tried only in a summary court Therefore it seems to me that it will certainly be ust, and probably in the end will make life easier for the magistrates' courts, and possibly cheaper, if the defendant has in good time a sight of the evidence which the prosecution wishes to adduce against him. This applies especially to drinking and driving cases—and I separate them. So often a defendant, once he knows the strength of the case against him, will plead guilty.
1199 The other matter is the timing of this operation. I think that all of us are completely in sympathy with the noble Lord, Lord Harris of Greenwich, and indeed the Government in our present precarious financial situation. So to that extent there is very little between us. I was very interested to hear, perhaps in a more formal form, the suggestion of my noble and learned friend that it should be some rule of conduct or practice that the prosecution should, before a case is actually heard, make available their cards, which I think would otherwise be held closely to the chest. That seems to me a very reasonable argument.
However, it takes for granted two things: first, that the prosecution, and, secondly, that the defence are both honourable; and whereas we always do take that for granted, I am not sure that in matters of criminal law we always can. I am sure that the noble and learned Lord prosecuted a great deal in his earlier days, though I am not sure whether he prosecuted the type of cases that I did; but at any rate very often the prosecution case is inextricably bound up with facts, comments and opinion as to the defendant, which would not only be of interest to his legal advisers but to most of the criminal fraternity in the locality as well. So if this were to become a part of our system there would certainly have to be some reorganisation in the thinking of the prosecuting authorities.
There is just one point where I would ask the noble Lord, Lord Harris, to consider Amendment No. 38. It applies to subsection (3), which in effect says that it shall not be open to a defendantto appeal against the conviction on the ground that a requirement imposed by virtue of subsection (1) above was not complied with by the prosecutor.The instance that I have in mind is that in subsection (1) (b) a magistrates' court, if it is satisfied in effect that the prosecution have not complied in the way that they should with paragraph (a), is required to adjourn the proceedings unless it is satisfied,that the conduct of the case for the accused will not be substantially prejudiced by non-compliance with the requirement.What the magistrates' court is being asked to do is to evaluate the scene as presented to it and to make a judgment. 1200 If, for instance, the defence say, "We know that (whatever the case is) a certain witness was there and could satisfy the court as to our innocence, and we want to see that statement"; and the prosecution say, for instance, either that a witness is ill, or unavailable, or the statement does not in fact say anything of the kind; or if they at any rate persuade the magistrates' court that there is nothing in the defence submission, the case proceeds and the man is convicted. The defence then has no right of appeal if in fact that magistrates' court is wrong. Of course it would not be wrong in law; it would be wrong because it misdirected itself on the information which was available to it at the time, and I leave that for the noble Lord's consideration.
I suggest that this afternoon, first, we should agree to Amendment No. 38, with the proviso that there is still another stage of the Bill in this House, and it may be that on further consideration some noble Lord will suggest an Amendment to Amendment No. 38, possibly along the lines that I have described. If we adopt that course, perhaps the way would be clear for the noble Lord, Lord Wigoder, to withdraw Amendment No. 36, at least for this afternoon, so that we would have the liberty to come back to the matter in the last stage of the Bill in this House, whenever that takes place.
§ 5 p.m.
§ Lord HARRIS of GREENWICH
My Lords, with the leave of the House perhaps I might speak again. I will try not to do this too often because we are on Report stage and I know that, perfectly reasonably, people are slightly ill at ease when Ministers try to address the House on two occasions on every Amendment, and later in the evening it may even be mildly exhausting so far as the Ministers are concerned. I want to reply to two points made by the noble and learned Lord. First, I should certainly not suggest that he—no doubt he did not think that the charge was directed at him—had been, or was ever likely to be, irresponsible on a matter affecting public expenditure, nor indeed, choosing my words carefully, I hope, did I suggest that the noble Lord, Lord Wigoder, was irresponsible. I said the House would be irresponsible if it were to pass this Amendment, and I repeat that 1201 point: that we cannot in fact pre-empt future resources in the way that this Amendment suggests.
There were two points put to me, the first concerning the language of Amendment No. 38 and the question whether a statement should be available in all cases. I will look at that. I would not want to commit myself on that matter today. On the second question, affecting the police and prosecuting authorities, that does not, of course, affect the Statute. I will look into that again before the next stage of the Bill. I would normally say that I would write to the noble and learned Lord, but, as he will realise, that is rather controversial language to use this afternoon. Therefore, I will say that I shall do my best to inform him before the next stage of the Bill. If anybody else wishes to come back to this matter on Third Reading, as the noble Earl, Lord Mansfield, has said, they can of course do so.
It is of course only right to say—and I am quite sure that the noble Lord, Lord Wigoder, is about to say it—that we have in fact moved a very substantial way to meet the point which was raised on the last occasion. One does so sometimes, even in matters as important as this, with some degree of hesitation. There is a grave danger of putting too many things on the Statute Book, for there then forms up behind each of these provisions on the Statute Book a large army of people who demand the implementation of that particular provision. This is particularly so at a time when one is having to cut back—not just maintain, but actually to reduce—the quality of public services in many areas. Nevertheless, as I have said, I think that we have gone as far as we can in Amendment No. 38. We cannot accept Amendment No. 36 for the reasons I have indicated. On the particular points which the noble and learned Lord has made, we will look into the matter before the next stage.
§ Lord WIGODER
My Lords, the noble Lord, Lord Harris of Greenwhich, invited me to cost the proposal, as I understood it, in Amendment No. 36. I regret that I cannot do so. The resources of the Liberal Party are not quite equal to those of Her Majesty's Government. I am content to take the figure of £4 million as given by the noble Lord, to make the obvious substantial deductions for 1202 the overestimates of figures contained in his letter to the noble and learned Lord, Lord Gardiner, and then to make further substantial deductions for the fact that savings will be effected by way of pleas of guilty and summary trials. I can only say that I suspect the result would be that a comparatively small sum is involved. It is a trifle ironic, perhaps, that the noble Lord should find himself resisting the expenditure of such a comparatively small sum at any date within the next two years on the very afternoon that your Lordships' House has bid farewell to some £400 million of £500 million of the taxpayers' money on a measure which at least I, for one, regard as far less important.
The noble and learned Lord, Lord Hailsham, suggested a practice direction. I am a little doubtful whether there is any authority in anybody to give such a practice direction to prosecuting authorities or to local police authorities. The noble and learned Lord also said that it would at least be some help if those authorities would supply copies of statements at the time of the hearing. I accept that that would be so, but, of course, if the case as disclosed at the time of the hearing takes the defence in some way by surprise, as it may well do, the result is that the defence will not be properly prepared, witnesses may not be available, and it is by no means a complete solution to the problem.
The noble and learned Lord, Lord Gardiner, indicated that perhaps we might find some formula which we might insert into the Bill to ensure that the provisions were to be brought into effect by the Home Secretary. Again, I would invite the noble and learned Lord to reflect whether that is really going to be a satisfactory answer when it is clearly accepted by many of your Lordships that there will be strong pressures on the Home Office from some prosecuting authorities and some police authorities never to put the provisions into effect, not on the grounds of cost at all but on the grounds of the forensic advantage that the present situation gives them. I doubt whether that, perhaps, in the circumstances, is a wholly adequate solution.
My Lords, in these circumstances, I take the view that perhaps the proper course, if your Lordships would agree 1203 to it, is this: that, first of all, I should ask leave at this stage to withdraw Amendment No. 36; and, secondly, that I, for one, should indicate that I would be prepared at this stage to support Amendment No. 38, in the name of the noble Lord, Lord Harris. I would do so subject to two provisos. One is that I would seek to amend it at a later stage, at Third Reading, certainly to extend the power to cover all offences and not merely those triable either way. Secondly, I should like, if I may, to discuss with some of the noble Lords who have taken part in this debate, and others who may be interested, whether it may be possible to add to Amendment No. 38 some provision which gives some certainty that in the foreseeable future the powers will be operated.
I appreciate it is difficult for your Lordships' House to commit itself to even the smallest expenditure even at some date two or three years hence. On the other hand, two or three years hence there may well be no Criminal Law Bill before your Lordships' House, and this is therefore the only opportunity that we will have of ensuring that regulations of this sort are brought into effect. I would hope that by Third Reading—as the noble Lord, Lord Harris, has said, we have made substantial progress together in this matter—we may find a satisfactory and unobjectionable way of achieving that end. In those circumstances, I would ask your Lordships' leave to withdraw Amendment No. 36.
§ Amendment, by leave, withdrawn.
§ 5.7 p.m.
§ Lord CAMPBELL of CROY moved Amendment No. 37:
§ Before Clause 36 insert the following new clause:
§ Execution of English and Scottish process in Northern Ireland
§ .—(1) Notwithstanding any provision or restriction to the contrary in any previous enactment, any process issued under the Summary Jurisdiction Acts may be served and executed at any place in England, Scotland and Northern Ireland as if the process originated in the country where it is to be served or executed.
§ (2) In this section, the expression "process" includes any summons or warrant issued under any of the provisions of the Summary Jurisdiction Acts.1204
§ (3) In this section, "Summary Jurisdiction Acts" means in England the Magistrates' Court Act 1952, in Scotland the Summary Jurisdiction (Process) Act 1881, and in Northern Ireland the Magistrates' Courts Act (Northern Ireland) Act 1964 and any statutory provision amending or re-enacting the same.
§ The noble Lord said: My Lords, I beg to move Amendment No. 37, standing in the names of my noble friend Lord Inglewood and myself. I think it would save the time of the House if, at the same time, we considered Amendments Nos. 41, 42, 43 and 63. Incidentally, I should mention that my name ought also to have been joined with that of my noble friend in three of those Amendments. I am told there was a misunderstanding at the printers. My noble friend Lord Inglewood cannot be here today as he has an engagement in the North of England. He waited patiently during the whole of the last day of the Report stage, and he much regrets that he cannot be here today. But he did raise this matter at Question Time on 2nd February, when I came in on a supplementary question and described the situation as "a dangerous anomaly". It is a matter of concern in the South of Scotland and in the North of England, but I would also point out to your Lordships that there is a matter of concern for the whole country arising from what is a defect.
§ I shall try to describe this as concisely as I can. At Question Time on 2nd February, the Government accepted that there was a defect in the present state of administration of the law regarding Northern Ireland. If an offence is committed in England, Scotland or Wales, a summons can be issued by a court to an accused person in Northern Ireland, but it cannot be enforced unless it is a serious offence punishable by imprisonment. Lesser offences, including most traffic offences, are not in that category. The procedure for enforcement by warrant cannot therefore be applied in those cases.
§ Operators of road vehicles whose only business address is in Northern Ireland can disembark defective vehicles at Stranraer. These can then travel all over Scotland, England and Wales in that defective condition, apparently with impunity. They may be stopped by the police, they may be reported as in a dangerous state. Indeed, they can be registered as offending against the law in 1205 being on the road at all. But if a summons is served in Northern Ireland as a result, nothing further happens. The same vehicle can come over again and again in the same condition, or in a worse condition. Police in the area, in the South of Scotland and the North of England, may find it becoming monotonous to stop the same lorry, whose driver knows that he is apparently immune.
§ It is the same with other road traffic offences such as exceeding the speed limit. Indeed, the impression is being given in the area concerned in South West Scotland that a driver must be accused of murder with his lorry before he has offended seriously enough to validate the warrant procedure in Northern Ireland. This is clearly grossly unfair to other drivers who operate in the United Kingdom. The final irony is that foreign vehicles are not privileged in this way. They are caught by the 1972 Road Traffic Act so that an offending vehicle or driver from the Republic of Ireland or from a neighbouring country such as France is subject to certain corrective procedures which do not apply in the case of operators or drivers based in Northern Ireland. They appear to escape due to a gap which cannot be intended and which ought to be filled without undue delay.
§ To illustrate the extent of the anomaly, I draw attention to operators' licences. As your Lordships will know, in certain circumstances an operator of a lorry has to have an operator's licence in order to be able to run lorries on the roads of this country; but I am informed that there are occasions where an operator's licence has been refused or taken away from operators based in Northern Ireland but still their lorries can travel with impunity on the roads on this side of Stranraer. Of course, the offences are committed by a small number of irresponsible operators. I am not suggesting that the large majority of lorries and other vehicles from Northern Ireland are not operating within the law. But it is a matter of anxiety to think that if any noble Lord were travelling on the motorways between London, or Dover, and the North, he might find himself driving very close to a lorry which could have been found to have had defective brakes, or to have been condemned because of faulty steering, or which has a tyre that is about to burst; yet though that lorry is stopped and checked, it cannot be 1206 stopped from going on. The effect of the service of a summons in Northern Ireland does not stop the lorry from returning.
§ This is a danger to everyone on the roads in England, Scotland and Wales, but the main concentration of such traffic is in the stretch of road between Stranraer and Carlisle. Naturally the communities in that area feel very aggrieved and the police in that area feel helpless. It is more difficult to enforce the law with British drivers and operators when they can see their Northern Ireland colleagues apparently getting off. There are arrangements between England and Scotland to deal with such cases. Although Scots law is different and Scots jurisdiction is separate, summonses from one side of the Border are effective on the other side. It is, therefore, paradoxical that Northern Ireland apparently should be an exception within the United Kingdom.
§ My Lords, when this matter was raised at Question Time on 2nd February the noble Lord, Lord Wells-Pestell, replied for the Government. He agreed with the situation which my noble friend and I then described—naturally, at Question Time, much more briefly than I have done today. He stated that consultations had already started between officials. Presumably that was between officials in London, Edinburgh and Belfast. That was five weeks ago. He also confirmed that this situation was not confined to road traffic offences and that it applied in other cases as well. He said that legislation was required, and so my noble friend and I felt that we ought to put down Amendments to see whether this Bill was not the appropriate place to take action. It is not something which is restricted to road traffic legislation even though that is the way in which it is causing a particular grievance.
§ The Amendments which I have mentioned proffer alternative ways for the Government of putting right this defect. I should be the first to say that these Amendments may not be precisely what is needed. There are later stages of the Bill. Perhaps at Third Reading in this House or in another place the Government may be able to find a better way of putting the situation right. At the beginning of February the noble Lord, Lord Wells-Pestell, appeared to confirm that action is needed and that the Government 1207 agree with that. The noble Lord said that it was a complicated situation and I can see that some time will be required, following consultation between officials, to reach an agreed solution. But no one, I suggest, can defend the present anomaly and if legislation is needed this may be the opportunity which offers and we may, as the noble Lord was saying just now, have to wait for some time before another Bill of this kind is before this House. Therefore, this opportunity should not be missed. Certainly, there is time; because this Bill will be before Parliament for some weeks if not for several months during this Session.
§ Lord HARRIS of GREENWICH
My Lords, the noble Lord. Lord Campbell of Croy, is quite right. This is a difficult problem and the Government are well aware of it. The basic difficulty is that under the present law people who commit minor offences in England, Wales or Scotland and who then return to Northern Ireland cannot be prosecuted because the law does not allow summonses to be served in Northern Ireland. And, of course, the same difficulty exists in reverse—though in terms of numbers of people involved, it is a lesser problem. This is not a new state of affairs but I would agree with the noble Lord that it is a worrying matter because of the continuing increase in traffic between Northern Ireland and the mainland. It is a growing problem, to which a solution should be found.
I must, however, tell the noble Lord that, much as we sympathise with the object behind his Amendments, it would be wrong of me to hold out any hope of being able to resolve these difficulties in this Bill. This is an extraordinarily complex area of the law, involving three jurisdictions and three quite different sets of legislative provisions and court procedures, and it is no easy task to reconcile those differences. While I commend the noble Lord for his valiant attempt to produce a solution, I do not think he will be surprised to hear me say that we do not consider the Amendments would necessarily produce the results he desires. But the main objection is not so much the language of Amendments as the extraordinarily complicated situation which is now confronting us. Perhaps I may go into it in detail so that noble Lords are aware of the problem.
1208 We have doubts whether it would be sufficient to provide for the reciprocal service of process between Northern Ireland and the other parts of the United Kingdom because such provisions would, in our view, depend for their operation on the addition of further provisions to Northern Ireland, first to allow for persons summoned "across the water" to plead guilty in writing and have their cases dealt with in their absence, and, secondly, to provide for the transfer of responsibility for enforcing any fine that was imposed on conviction to a court in the area where the defendant was residing.
I can perhaps best illustrate the difficulties by giving an example. Let us assume that a lorry driver who normally resides in Northern Ireland (and whose firm is based in Northern Ireland) comes over on the ferry to England with a defective lorry. He is stopped by the police. Since the offence is not punishable with imprisonment, the police have no power to arrest him and bring him before a magistrates' court in England. That is the present state of the law. Therefore they must seek a summons from the court and serve it on him. If by then he has returned to Northern Ireland, the summons would be served on him (by whatever method the law then allowed). On the date specified in the summons the man concerned does not appear before the English court.
If service of the summons were proved, it would be open to the court to proceed in one of two ways: either it could issue a warrant for his arrest for failure to appear (though it would be unlikely to do so in the case of a relatively minor offence) or it could proceed to try him in his absence under the provisions of Section 15 of the Magistrates' Courts Act 1952. Let us suppose that the defendant were convicted in his absence and fined, and the court were to send him notice of the conviction and of the fine imposed.
If he failed to pay the fine, the normal procedure would be to issue a summons (or more likely a warrant) to bring him before a means inquiry. It is unlikely that he would appear in response to a summons because the cost of travelling over to England for this purpose (bearing in mind the loss of earnings and the expenditure which he would incur in the process) would be likely to exceed the 1209 amount of the fine imposed. Similarly, would it be justifiable for the courts to issue a warrant for his arrest, bearing in mind the hardship to the defendant and cost to public funds of executing that warrant in Northern Ireland and bringing the defendant before the English court?
Of course a similar situation arises both within England and Wales and between England, Wales and Scotland where a person is dealt with for a summary offence by a court many miles from his home. But where this occurs, there are provisions within English and Scottish law which allow the accused in certain circumstances to plead guilty by post, setting out the mitigating circumstances in writing, and also allow a convicting court to transfer the fine to the court in the area where the defendant resides, in which case, the second court takes over all responsibility for enforcing the fine. This kind of procedure would need to be introduced in Northern Ireland to enable any legislation on cross-border process between Northern Ireland and Great Britain to function satisfactorily and without hardship to the defendant.
Unfortunately, however, neither this concept nor that of allowing persons to plead guilty in writing and be dealt within their absence are embodied in existing Northern Ireland legislation. These—I must emphasise this, I am afraid—would be fairly fundamental changes for Northern Ireland, and it is clear that a wide measure of consultation with the courts, the police and other interests there would be necessary before such provisions could be introduced.
Having said that, I should emphasise that the Government recognise the importance of this problem which, as the noble Lord, Lord Campbell of Croy, said, has been causing increasing and justifiable concern particularly in the areas to which the noble Lord referred. As my noble friend Lord Wells-Pestell indicated in the reply on 2nd February to the noble Lord, Lord Inglewood—and the noble Lord, Lord Campbell, commented on this—consultations between officials are now in progress about the formulation of proposals for legislation. The complexity of this operation is considerable for the reasons that I have had to indicate this afternoon, particularly because it involves the modification of Northern Ireland domestic law as well as the provision of a cross-border procedure.
1210 It is therefore too early to say how long discussions and the formulation of the necessary legislation will take, but I can assure the House that we recognise the importance of finding a solution to this problem. Although I cannot undertake any commitment as to timing, I can assure the House that there will be no unnecessary delay in introducing this legislation per-haps by an addition to the present Bill in another place. That obviously would be a very desirable objective. I would not wish to give an absolute cast-iron guarantee that these consultations will have been concluded even in the time it will take for this Bill to get through another place.
The noble Lord, Lord Campbell of Croy, has referred to this as a matter of concern to the whole country, and that is indeed the position of the Government. Certainly we will act with as much despatch as we possibly can. I hope that on the basis of what I have said today the noble Lord will see fit to withdraw his Amendment.
§ 5.25 p.m.
Lord CAMPBELL of CROY
My Lords, I am grateful to the noble Lord, Lord Harris of Greenwich, for the trouble which he has clearly taken into the complicated matter which I and my noble friend raised. I am grateful to him for spelling out some of the difficulties which his noble friend Lord Wells-Pestell could only refer to briefly at Question Time. The noble Lord, Lord Harris, has confirmed that the Government accept that there is something which needs to be put right here. I know that my noble friend Lord Inglewood will be disappointed that the Amendments were not drafted in a way which would have attracted the full approval of the Government because he spent a great deal of time in endeavouring to perfect the wording of the Amendments and to provide alternatives for the Government.
As I indicated earlier, I have no intention of pressing any of these Amendments. They were illustrative of what we thought could be done in this Bill. The noble Lord has spoken of difficulties, and the particular one which he has mentioned and which will register with your Lord ships, is that Northern Ireland domestic law would need to be changed. I can see that it may be difficult to do that in a few weeks or months when there are many 1211 other things which occupy the attention of those who are concerned with Northern Ireland and its good administration. But I hope that the Government, in pointing out that a gap needs to be filled and that rectification is necessary, will make it clear that it is in the interests of Northern Ireland—the people of Northern Ireland and government in Northern Ireland—that the ill-feeling which has been caused on this side should be removed. The ill-feeling is increasing and, as the noble Lord said, it is valid. There should be some pressure in Belfast to try to make any necessary alterations in their own domestic law, if it is going to remove this cause of grievance.
I am glad to have had this opportunity of drawing attention to this defect. I trust that the Government, even though they say that time will be needed—and I know the Minister cannot give any guarantee that this matter will be included in this Bill—will pursue this matter as vigorously as they can. If there is any thing that my noble friend and I can do to assist at a later stage, we will be glad to do so. I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Lord HARRIS of GREENWICH moved Amendment No. 38:
§ After Clause 37, insert the following new clause:
§ Power to make rules as to furnishing of information by prosecutor in proceedings for offence triable either way
§ .—(1) The power to make rules conferred by section 15 of the Justices of the Peace Act 1949 shall, without prejudice to the generality of subsection (1) of that section, include power to make, with respect to proceedings against any person for an offence triable either way, provision—
- (a) for requiring the prosecutor to do such things as may be prescribed for the purpose of securing that the accused or a person representing him is furnished with, or can obtain, advance information concerning all, or any prescribed class of, the facts and matters of which the prosecutor proposes to adduce evidence; and
- (b) for requiring a magistrates' court, if satisfied that any requirement imposed by virtue of paragraph (a) above has not been complied with, to adjourn the proceedings pending compliance with that requirement unless the court is satisfied that the conduct of the case for the accused will not be substantially prejudiced by non-compliance with the requirement.
§ (2) Rules made by virtue of subsection (1)(a) above—
- (a) may require the prosecutor to do as provided in the rules either—
- (i) in all cases; or
- (ii) only if so requested by or on behalf of the accused; and
- (b) may exempt facts and matters of any prescribed description from any requirement imposed by the rules, and may make the opinion of the prosecutor material for the purposes of any such exemption.
§ (3) Where a person is convicted by a magistrates' court or the Crown Court of an offence triable either way, it shall not be open to him to appeal against the conviction on the ground that a requirement imposed by virtue of subsection (1) above was not complied with by the prosecutor.
§ The noble Lord said: My Lords, I beg to move. We discussed this Amendment with Amendment No. 36.
§ The Earl of MANSFIELD
My Lords, may I ask the noble Lord to bear in mind the question of an appeal. It may have slipped his memory when replying to the previous debate.
§ On Question, Amendment agreed to.
§ 5.29 p.m.
§ Lord WIGODER moved Amendment No. 39:
§ After Clause 37, insert the following new clause:
§ Committal for trial under section 1 of Criminal Justice Act 1967
§ .No case shall be committed for trial by virtue of the provisions of section 1 of the Criminal Justice Act 1967 until there has been deposited with the Magistrates' Court a certificate, in a form to be prescribed by the Secretary of State, signed by the person conducting the prosecution and the defendant's legal representative, to the effect that they have each examined the witness's statements tendered to the Court, and are satisfied that the case is suitable for committal for trial under the said section 1.
§ The noble Lord said: My Lords, the noble Lord, Lord Donaldson of Kingsbridge, indicated at the Committee stage when this Amendment was discussed that he recognised that there was a real abuse here which had to be dealt with. He said he would welcome the opportunity of considering whether there was any effective way of dealing with it. The abuse is simply this: where a committal for trial takes place under Section 1 (in other words where there is no consideration given by the court to the evidence at all because both the prosecution and the 1213 defence agree that the case should go for trial) experience has shown that a number of cases are thus going for trial which should not do so because the evidence is either non-existent or very slender. Indeed, it has been estimated that, of the cases in which acquittals are recorded at the Crown Courts, something like one-third are recorded as a result of a direction by the judge at the end of the prosecution case; and many of those must obviously be cases which should never have troubled the Crown Courts, and should never have led to the substantial waste of time and expenditure involved.
§ In Committee, the noble Lord, Lord Donaldson, in a sense, admitted the strength of the case by putting forward what the objection was, because he said at col. 815 of the Official Report that the Magistrates' Association and the London Stipendiary Magistrates feared that if this Amendment were carried, and the prosecutor and defending counsel or solicitor both had to certify that they thought the case an appropriate one for the Section 1 procedure, this would result in more "old style" committals under Section 7 of the Magistrates' Courts Act 1952. That was really a tacit admission that what was being said was that if the police or the solicitors or the counsel involved did their duty properly and studied the papers before agreeing to a Section 1 committal, they would discover that there were many cases in which the evidence was very slender and would therefore insist on the matter being explored in the magistrates' courts.
§ It was then pointed out by the noble Lord, Lord Donaldson, that this would, of course, increase the pressure on the magistrates' courts. That is quite correct, but at the same time as it did that it would substantially reduce the pressure on the Crown Courts; and of course the expense is very much greater in the Crown Courts. Indeed, it is not very long ago that at an earlier stage in this Bill the Government were arguing in relation to the small thefts proposals how important it was to reduce the pressure on the Crown Courts, and how the extra work could easily be assimilated by the magistrates' courts. They really are seeking to have it both ways in these circumstances.
§ There is clearly a serious abuse here. I recognise that it may well be said that 1214 the procedure set out in the proposed Amendment—that the person conducting the prosecution and the defendant's legal representative should sign a certificate to the effect that they have examined the statements and are satisfied that the case is suitable for committal for trial—is not entirely effective. But it was the best that the James Committee could come up with, and it might go some way towards solving this problem.
§ At this stage, the only other matter I would raise is this. I suggested to the noble Lord that before this stage was reached he might care to consult some of the Judiciary at the Crown Courts who see this problem at first-hand, and confirm—as I am sure he would confirm on inquiry—that there were a substantial number of cases slipping through the net in this way, which were causing a great deal of inconvenience and unnecessary expense. So I should be glad if he would indicate whether any inquiries have been made and, if so, what is the result. My Lords, I beg to move.
§ The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Lord Donaldson of Kingsbridge)
My Lords, in accordance with my promise, we have been looking carefully at this problem. It is an important matter, and I think we should all agree that, in so far as cases are being committed to the Crown Court which ought not to go there, that is a waste of everybody's time, particularly that of the Crown Court, and that some method should be found to avoid it happening. The difficulty is not this but rather in finding out why such cases reach the Crown Court, and what means can be devised to stop this happening.
The James Committee recommended the method embodied by the noble Lord, Lord Wigoder, in his Amendment, but as I explained at Committee stage various organisations concerned with the courts—the noble Lord mentioned them in connection with another matter; the Magistrates' Association, the London Stipendiary Magistrates and the Prosecuting Solicitors' Society—have since urged on us, for what seem to us to be sound reasons, that this would not provide an effective remedy.
All these organisations are directly concerned at the committal stage. There 1215 has been some contrary advice, including that from some judges, but the usefulness of the Amendment is clearly open to question.
Our doubts about the answers to these problems centre on the question of what are the reasons for directed acquittals—a question to which there appears at present to be no single or certain answer. Some contend that it is mainly the fault of the prosecution for not preparing the case adequately. Others contend that it is mainly the fault of the defence solicitor for not reading the papers, or for not making a submission of "no case to answer" in the lower court. There may also be other reasons. Part of the answer may lie, for example, in changes in the circumstances between committal and the trail. The main prosecution witnesses may have left the country, or have died. The defence solicitor may have taken the view (as he may quite properly do) that it would be best in his client's interest to save the submission of no case to answer for the judge at Crown Court, because the magistrates are likely to commit the case for decision, anyway, and by showing the defence hand at committal stage he will have given the prosecution an opportunity to bolster the case against his client by obtaining further evidence.
Therefore, the Government's view is that it would be wrong to jump to the conclusion that to require both sides to sign a certificate is the answer to the problems. What is needed is a more detailed examination of the reasons for directed acquittals. We consider that before steps are taken in this direction, research is needed—as, indeed, the James Committee propose. As the noble Lord knows, some research is already in progress—by the Institute of Judicial Administration at Birmingham University—and when the results of this are available, probably later this year, we shall examine their findings and, if necessary, consider whether supplementary research is needed. Meanwhile, however, we do not consider that it would be appropriate to introduce a procedure such as the Amendment contemplates—and, indeed, there are some positive dangers in doing so.
Much has been said during the passage of this Bill about the existing burdens on magistrates. The Bill, itself, will 1216 undoubtedly add some work load to the magistrates' courts and this Amendment will, at the very least, mean more pieces of paper passing from prosecution and defence to the magistrates' court. Another danger to which the Magistrates' Association have drawn attention, is that this procedure might result in more "old-style" Section 7 committals, as the noble Lord said, because those concerned with the prosecution and defence might develop a more cautious attitude to Section 1 committals, lest they attract criticism from the judges. This would certainly be a retrograde step, and would inevitably mean an addition to the burden of work.
I want to stress that the Government do not deny the reality of the problem, and they are quite clear that a solution must be found, but we do not think that this Amendment contains that solution. The Department has not made the inquiries which the noble Lord suggested we should make, on the grounds that it thought the information from the bodies more closely concerned with committals, which had already given their opinion, was sufficient to make us very doubtful of accepting the Amendment. If Birmingham University, on further discussion, bring up a satisfactory solution, then I see no special difficulty in introducing it fairly quickly, either in future legislation or under existing rule-making powers, so that the problem can be dealt with. So that, much as we sympathise with the aim of the noble Lord, and little as we deny the reality of the problem, we cannot, I fear, support the Amendment.
§ 5.40 p.m.
§ Viscount DILHORNE
My Lords, I must say that I regard that as a most disappointing reply. I should think that probably one of the biggest wastes of money in the administration of criminal courts results from the committal of cases which ought not to be committed for trial, with the need to incur expenses in securing the attendance of witnesses at a trial, and all to no end. I regard the answer we have had from the noble Lord, Lord Donaldson of Kingsbridge, as very unsatisfactory indeed. Earlier this afternoon we had a great address—quite what its relevance was I do not know—about the impossibility of spending another £4 million. Here is an opportunity to save a considerable sum of money. I do not 1217 believe, from what the noble Lord has said, that he has any indication of the amount of money that is going down the drain as a result of the committal of cases which would not, in the old days under the old procedure, have been committed at all.
One of the main objects of the Bill is to relieve the pressure on the Crown and circuit courts. This is one obvious way in which that can be done; but we are told that nothing can be done because the Government do not know what are the reasons for this happening. Surely one reason is that the prosecuting authorities are seeking committals and consent to committals on material which they ought to know is wholly insufficient for the purpose. I do not say that that covers the whole field, but from what I have heard it covers a considerable amount.
When the noble Lord says that defending counsel will not want to submit before magistrates that the case discloses no case to answer because it may mean that the defence case will have to show their hand, with great respect that is complete nonsense. All that defending counsel has to submit is that the case for the prosecution does not constitute a prima facie case. He does not have to show his hand.
I hope that the noble Lord and the Government will have a further look at this point. I am not entirely happy about the wording of the Amendment which stands in the name of the noble Lord, Lord Wigoder, but it is far better than nothing, and, rather than have nothing, I would have that.
§ Lord GARDINER
My Lords, if the Government are anxious to save money there is no doubt at all that here is a way in which a great deal of money could be saved without waiting for research work into how this waste of money comes about. It comes about because about 30 per cent. of all acquittals are not by juries but by judges directing the jury that they cannot convict.
Will the noble Lord take into account at the same time the Justice proposal about an independent prosecuting authority? This is one of the difficulties facing the police, and county prosecuting solicitors in those counties in which there are county prosecuting solicitors. As the House 1218 knows by now, this is the only part of democratic Western Europe in which, as well as carrying out duties which they carry out in every country, the police also prosecute. In democratic Western Europe it is only in England and Wales that the police still prosecute.
Until I conducted the Oxford research work when I was considering this kind of question, I must confess that I did not know that there were cases in which the police said that they had prosecuted for policy reasons—not because they thought for a moment that they would get a conviction but because they thought it was good for the man to be prosecuted, or because the chief constable had said, "Too many bicycles are being stolen and, whether or not we are going to prove anybody is guilty, we must prosecute somebody for stealing a bicycle". I had no idea that these policy prosecutions took place.
Even where there is a county prosecuting solicitor we have to remember that although he may tell the police, "This is a hopeless case and you ought to drop it", the police representative may say, "I don't care what you say; we're going on with it". The relationship between the police and the prosecuting solicitor is that of solicitor and client, and the county prosecuting solicitor has jolly well got to do what the police authority tell him. If they insist on going on with a case, he has to go on with it. If we have to wait for research work to take place, which is very disappointing, before there car be any saving of money, is my noble friend able to undertake that, as a way of stopping this happening, that question, among others, will be taken into account?
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, by leave of the House may I say that I will certainly undertake to do that. The Government's position is perfectly clear. They admit the evil but they regard as inadequate the remedy put forward. They are taking active steps to find a better one, and when they do they will enforce it.
§ Lord WIGODER
My Lords, I am bound to say that I also find the reply a little disappointing, primarily in that inquiries seem to have been limited to those who prosecute in the magistrates' courts rather than to those who know 1219 about the situation, namely, the people who sit as circuit judges and recorders in the Crown Courts, where over and over again such cases occur. It becomes perfectly apparent after 10 minutes or half an hour that there is no case on the papers; yet, on the existing authorities, the judge is powerless to intervene until the end of the prosecution case, which may be days ahead, during which time witnesses are present, jurors are away from work and a vast amount of time and expense is taken up unnecessarily.
The Government clearly accept that there is an abuse here to be dealt with. I am not entirely happy that the proposal in the Amendment is the most effective way to deal with the matter; I accept that at once. With your Lordships' leave, before the next stage I should like to consult those noble and learned Lords who have taken part in the discussion to find out whether we can find a more effective way of dealing with the problem. In those circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.47 p.m.
§ Lord DONALDSON of KINGSBRIDGE moved Amendment No. 39A:
§ Before Clause 38, insert the following new clause:
(". —(1) For sections 1 and 2 of the Road Traffic Act 1972 (causing death by reckless or dangerous driving, and reckless, and dangerous, driving generally) there shall be substituted—"
Causing death by reckless driving.
1. A person who causes the death of another person by driving a motor vehicle on a road recklessly shall be guilty of an offence.
2. A person who drives a motor vehicle on a road recklessly shall be guilty of an offence.".
(2) For section 17 of that Act (reckless, and dangerous, cycling) there shall be substituted—
17. A person who rides a cycle, not cycling, being a motor vehicle, on a road recklessly shall be guilty of an offence.
In this section 'road' includes a bridleway.".")
§ (3) Nothing in subsection (1) or (2) above or in any related repeal provided for in Schedule 10 to this Act shall apply in relation to an offence committed before the coming into force of that subsection.")
§ The noble Lord said: At Committee stage the noble and learned Viscount, 1220 Lord Dilhorne, sought to delete the provision that the offences of "causing death by reckless driving" and "causing death by dangerous driving" should be triable either way, instead of being triable only on indictment. The debate which ensued demonstrated that there is no single view on this. The noble and learned Lord, Lord Hailsham of Saint Marylebone, expressed a view similar to that of the James Committee, that it would be preferable to abolish these offences altogether. But it is apparent to the Government that many people, both in this House and outside it, would deprecate a move which might seem to diminish the importance attached to the most serious instances of culpable driving. It would in any case be premature to take a final view on the need for an offence concerned with causing death on the road, when this is among the aspects of homicide under consideration by the Criminal Law Revision Committee. Its Working Paper on Homicide was issued for comment last August.
§ Much of the difficulty which was discussed both by the James Committee and in the debate on 10th February arises from the concept of "dangerous driving", which can range from instances of deliberately hazarding other road users down to relatively minor faults which are with difficulty distinguished from "driving without due care". It seems inevitable that while there is a Road Traffic Act offence of "causing death by dangerous driving", many cases in which the driver's fault is well short of recklessness would result in such a charge on account of the fatal but fortuitous consequence of the driver's lapse. This difficulty does not arise in the case of "causing death by reckless driving", since the courts' interpretation of the word "reckless" would preclude this.
§ The James Committee pointed out that there is also a problem, to which I have already alluded, in distinguishing between "dangerous" and "careless" driving. This is not, as is commonly supposed, a question of degree, as is the question of distinguishing between "reckless" and "careless" driving. It has been recognised since 1962 that the concept of "danger" in this group of offences is a source of difficulty because it covers such an enormous range of seriousness. The committee proposed that it should 1221 be eliminated, so that the more serious offences in section 2 of the Road Traffic Act 1972 would be limited to the other ingredient of "reckless driving". The committee did not make a specific recommendation about the Section 3 offence, but in fact all offences which are now charged as "dangerous driving" can be charged either as "reckless" or as serious instances of "careless and inconsiderate" driving. The present Bill would raise the fine for this latter offence from £200 to £500. The Government Amendments therefore eliminate the term "dangerous" from the definitions of driving and cycling offences, leaving those two categories.
§ The noble and learned Viscount, Lord Dilhorne, proposed the abolition of the "causing death" offence. The Government Amendments retain an offence of causing death by reckless driving——
§ Viscount DILHORNE
My Lords, with great respect I did not propose the abolition of the offence of causing death by driving. I said that I would much prefer the offence of causing death by dangerous driving to be abolished than to be made triable summarily.
§ Lord DONALDSON of KINGSBRIDGE
My Lords, I am grateful to the noble and learned Viscount for his correction. The Government Amendments retain an offence of causing death by reckless driving; and by Amendments to Schedules 2 and 3 this would be restored to the category of offences triable only on indictment as was urged by the noble and learned Viscount, Lord Dilhorne. That must be right, because the potentially less serious offence of causing death by dangerous driving would be dropped, leaving one which is a form of manslaughter. It may be argued that this remaining offence is redundant, since death by reckless driving is always manslaughter. However, the Government are impressed by the considerations which led the former Administration in which the noble and learned Viscount was Attorney-General, to introduce the present offence; namely, that juries were often unwilling, even in a flagrant case, to convict a reckless driver of manslaughter. It is possible that juries might take a different view now, but there is no reason to assume that they would. Moreover, 1222 the repeal of the "causing death" offence might give the impression, mistaken though that would be, that the Government attach less importance to it than they did to road safety. If the tentative proposal in the Criminal Law Revision Committee's working paper to substitute an offence of causing death recklessly for involuntary manslaughter were to be adopted, then the position would be different. Meanwhile, however, the Government think that, on balance, an offence of causing death by reckless driving should be retained.
If the House accepts these Amendments, some further Amendments will be necessary, including a provision to cover the situation where the court acquits on the reckless driving charge but considers the defendant guilty of careless driving. These could not be drafted until the will of the House was known, but will be tabled by the Government at a later stage. I hope the noble Lords who spoke on the previous occasion will agree that this compromise goes most of the way to answer the criticisms directed at the existing law, with the added advantage of implementing a further James recommendation on the motoring offences generally I beg to move.
§ 5.53 p.m.
§ Viscount DILHORNE
My Lords, I should like to welcome these Amendments. In my view, they make a considerable improvement to the Bill. As I understand it, the offence of dangerous driving, as such, will go and will be replaced by the offence of reckless driving. However, that is not the primary concern here. I got into a little trouble at the Committee stage by referring to the offence of "motor manslaughter ". The noble Baroness, Lady Wootton of Abinger, seemed to think that that was a particular kind of manslaughter. Of course it was not. "Motor manslaughter" is the way in which we lawyers commonly refer to manslaughter by motorcar. If you are going to charge manslaughter by motor car, I fear that you will have the very same difficulties as we had in 1954 and 1955 when the charge of manslaughter on the clearest uncontradicted evidence resulted in a complete acquittal—not even in a conviction of dangerous driving. In one instance which I gave in the other place at that time there was not even any 1223 evidence called for the defence. I remember that there was then opposition—although I was only recently reminded of the noble Lord's speech—but I remember that I had very strong support for moving that clause into the Bill from members of the Labour Party once they knew what was happening.
Under this Amendment, the offence of causing death by dangerous driving is being changed to causing death by reckless driving. I see no objection to that. It is only seeking to do what the original offence sought to do—spelling out manslaughter by motor car in terms which are more easily understood. I hope it will work: I see no reason why it should not, and I think it will lead to a considerable simplification of the law. I hope that encouragement will be given to securing that the charges under Section 1 will not be preferred except in cases where a charge of manslaughter would be thought properly to lie. I regard that as very important. One of the troubles with the present offence has been that it has been gradually downgraded and the prosecuting authorities have used it for quite different ends from that which it was intended to serve.
§ The Earl of MANSFIELD
My Lords, I should like to give a welcome to this Amendment on a rather lower plane than that given by the noble and learned Viscount. If there is any part of this Bill which is to be welcomed I think it is this Amendment. It will cause more rejoicing and more satisfaction, if only to the legal profession, than any other enactment that we could make in the Bill. I first heard of the term, "causing death by dangerous driving" when, partly through the good offices of the noble and learned Viscount, Lord Dilhorne, I marshalled for Lord Devlin, he then being a puisne judge, shortly after I was called to the Bar. Even then, in its very early stages, the offence of causing death by dangerous driving caused no little difficulty to Assize juries. Even a man of the erudition of Lord Devlin found it not easy to put across the facts and the new law in a form that could be understood and appreciated.
So far as the general public are concerned, it will not be denied that those of them who appear in criminal courts in the vast preponderance of cases do so as 1224 a result of a motoring offence. Very few of them have ever appreciated the difference between dangerous driving and careless driving. So many times it is said by one's client that they never intended to cause danger to anyone; that they were trying to drive as best they could, and yet here they were in a court, accused of an offence which they knew to be very serious and yet to them the culp-pability did not match the consequences. That may have been a mistake and even the wrong view for them to take, but it was the general view and one which it was by no means easy to explain as their legal representative.
Also, the difference between dangerous and careless driving was taken advantage of in many cases by prosecuting authorities. On many Saturday afternoons I used to go to a magistrates' court somewhere in London where they had traffic light cases, and in every single case where somebody had gone across a red light they were automatically charged, first with dangerous driving, secondly with careless driving, and thirdly with failure to obey an automatic traffic signal. Almost invariably, unless there was evidence of flagrant driving, one pleaded not guilty to dangerous driving, and the charge of careless driving was gratefully accepted by the magistrate because he wanted to get away, and the traffic light offence was left on the file. Indeed, so keen were courts on this that there was one magistrate in St. Marylebone who, if anybody pleaded not guilty to careless driving as well as to dangerous driving, he would immediately say that he was going to send them for trial and start an ill-starred committal, until while the clerk was scratching out the evidence and the representative had hasty words with his client, between him and the dock, his mind was changed.
I hope I have not been too frivolous, but this distinction between dangerous and careless driving caused a great deal of anguish to a number of people and certainly put the country to a large amount of expense and quite unnecessary work. I am quite sure that in the future this Amendment will be the cause of rejoicing.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, I only want to add a few words. I really did not expect that 1225 we should "hit the jackpot" in this case, and I am really rather pleased and surprised that up to a point we have done so. I am bound to say that I am a little less enthusiastic than either my noble and learned friend on the Cross-Benches or my noble friend behind me. The caravan moves on slowly, but how slowly; a slight edging towards rationality in the disreputable jurisprudence of the motor car, but only very slight.
It is a good thing that we are getting rid of this element of dangerousness in the offence; I rejoice with my noble and learned friend and my noble friend. The noble Lord, Lord Donaldson, was pleased as Punch that he was advancing, now says, "We will keep it as an offence of causing death by reckless driving". So yet again it is still true that if the man skips out of the way quickly enough the motorist cannot be convicted of the more serious offence. If the man is sufficiently decrepit and old, like me, then he has to commit another offence. But the driving may be the same in both cases, and it depends upon pure chance as to which offence is committed, at least so far as the driver is concerned.
I would quite agree with my noble and learned friend, who I think still has lingering love for his misbegotten child of the 1957 vintage or 1955 vintage, but I make this faint observation. It would be perfectly good enough to lay down a rule that reckless driving was reckless driving and that if it resulted in death it always had to go to trial, and that would be rational. But nobody in this House appears to want rationality in our criminal law. Who am I to stand in their way?
§ Lord WIGODER
My Lords, I think the noble and learned Lord, Lord Hailsham of Saint Marylebone, is clearly caught by the new Section 17, which deals with reckless cycling. Might I also very briefly welcome this Amendment. I believe it to be a great improvement. Recklessness and carelessness are both states of mind which magistrates and juries can understand. The concept of dangerous driving has always been an extremely difficult one to appreciate. I am sure this is a very great improvement.
§ On Question, Amendment agreed to.1226
§ 6.2. p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 40:
§ Before Clause 38, insert the following new clause:
. In section 10 of the Sexual Offences Act 1956 (incest by a man), after subsection (2) insert—
(2A) Where any man incites a child under the age of sixteen to commit with him an act prohibited by this section, and which would be an offence under section 11 of this Act if committed by a woman of the age of sixteen or over, he shall be guilty of an offence punishable in the same manner as if she had been of the age of sixteen or over, and if he had incited her to commit one of the acts prohibited under section 11 of this Act.
§ The noble and learned Lord said: My Lords, it is seldom that one has the opportunity of proposing an Amendment to give effect to a recommendation of the Court of Appeal within about 10 days of its taking place—perhaps a little more, certainly under a month. On 18th February last there was heard a case called The Queen v. Whitehouse—nothing to do with the well-known lady—in which Lord Justice Scarman made a suggestion for the improvement of the criminal law. It was headed in The Times report, "Lacuna in the law for protecting girls". I am always in favour of protecting girls, so immediately I looked at the case with more than my usual attention.
§ The position is, roughly speaking, this. When Lord Kilmuir was Lord Chancellor, in 1960 or thereabouts, there was a Protection of Children Act which protected young children, of 14 and under I think, from a very curious kind of offence, where they were not assaulted by a man and where no complete offence was committed by the man, but where a man solicited behaviour on behalf of the child which if it had been committed by an adult, would amount to an offence. The man was then made guilty of a substantive offence under that Act. If the man is the father of the girl from whom he solicits conduct of this kind, and the girl is over 16, he is guilty of inciting an offence of incest, if the act amounts to full sexual intercourse, because the girl herself would then, under the Sexual Offences Act 1956, be guilty of a substantive offence. But it was pointed out, with irreproachable logic, in the case of Whitehouse to which I have referred, that if a father solicits a girl, his daughter, being of an age between. 14 and 1227 16, to commit incest with him, he cannot be convicted of anything, because the daughter is not protected by the Protection of Children Act, and, as there is no substantive offence in the girl being under 16, he has not incited or aided or abetted or counselled commission of a crime. This is obviously an absurdity.
§ I am much too pessimistic about the extent of my Parliamentary draftsmanshp to believe that the Government will accept my words, but if they will accept my intentions I will be more than delighted. I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, I am most grateful to the noble and learned Lord for having dealt with this matter with such speed. It is undoubtedly an important matter. As he rather suspects, the drafting of his Amendment is not wholly appropriate. If he will be good enough to withdraw it, I will undertake that the Government will, at a later stage, introduce Amendments to deal with this point.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I am most grateful indeed to the noble Lord. As he will see at a later stage in the Bill, some kind of alteration to the Title of the Bill will be required. I am grateful to him and beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.6. p.m.
Lord HARRIS of GREENWICH moved Amendment No. 44:
Page 28, line 39, leave out ("section") and insert ("sections").
§ The noble Lord said: My Lords, perhaps I may be permitted to speak to Amendments Nos. 45 and 46 at the same time. The effect of these Amendments is to make sure that the police have power to enter and search any vessel, boat, hovercraft, aircraft or vehicle for the purpose of exercising any of their powers of seizure of animals under the anti-rabies import controls. Your Lordships will observe that a reference also appears in the text of the Amendments to a power of entry for the purpose of arresting offenders. This provision is not, however, new to the Bill; it is merely being transferred, with minor drafting changes, within Clause 38.1228
§ If I may briefly sketch in the background to these Amendments, the Government have recently completed a review of the anti-rabies import controls, as set out in the Rabies (Importation of Dogs, Cats and Other Mammals) Order 1974, and have, earlier this week, laid an amending order before Parliament. The order extends to police officers in their own right the powers of seizure of animals conferred on diseases of animals inspectors under the 1974 order, which at present the police possess only in those areas where they have been appointed diseases of animals inspectors by the local authority. The amending order also strengthens the powers by giving both police and inspectors a power to seize animals not properly confined on board vessels, this being an obviously important part of our anti-rabies defences. The purpose of these Amendments is, therefore, to ensure that the police have adequate powers to enforce the new powers of seizure which it is proposed to confer upon them by the amending order. I beg to move.
§ The Earl of MANSFIELD
My Lords, when this Bill was debated on Second Reading I paid tribute to the Government for filling a gap which had shown itself in our law so far as rabies was concerned, and indeed one which I had raised in an Unstarred Question in your Lordships' House sometime last year. This improves upon what has already been done, and I think your Lordships will welcome it.
§ Viscount SIMON
My Lords, before the Question is put, may I ask the noble Lord, Lord Harris, whether, if it is necessary to mention hovercraft specifically, it should also be necessary to mention hydrofoils?—because there is a proposition to have a hydrofoil service between London and Belgium.
§ Lord HARRIS of GREENWICH
My Lords, the noble and learned Lord, Lord Hailsham, assures me that it is a ship. Almost certainly the noble and learned Lord is right. I will gladly look into the matter and confirm that he is right. I will communicate with the noble Viscount.
§ On Question, Amendment agreed to.1229
Lord HARRIS of GREENWICH moved Amendment No. 45:
Page 29, leave out lines 3 to 9.
§ The noble Lord said: My Lords, with this Amendment, I should like to move Amendment No. 46.
Lord DE CLIFFORD
My Lords, regarding Amendment No. 46 this gives power to a constable to:enter…any vessel, boat, hovercraft, aircraft or vehicle…When it says "any vessel or boat", could the noble Lord tell us where the boat is to be. Is it to be tied up or at anchor or might there be occasions when it might be necessary to enter while it was moving down the coast within the three mile limit? Could he inform me on that point?
The DEPUTY CHAIRMAN of COMMITTEES
My Lords, I had better put the Amendments separately. The Question is that Amendment No. 45 be agreed to?
§ On Question, Amendment agreed to.
Lord HARRIS of GREENWICH moved Amendment 46:
Page 29, line 27, leave out ("section.".") and insert ("or the following section.
Powers of entry and search.
5B.—(1) For the purpose of arresting a person under the power conferred by section 5A above a constable may enter (if need be, by force) and search any vessel, boat, hovercraft, aircraft or vehicle of any other description in which that person is or in which the constable, with reasonable cause, suspects him to be.
(2) For the purpose of exercising any power to seize an animal or cause an animal to be seized which is conferred on constables by an order made under the principal Act and expressed to be made for the purpose of preventing the introduction of rabies into Great Britain, a constable may enter (if need be, by force) and search any vessel, boat, hovercraft, aircraft or vehicle of any other description in which there is, or in which he, with reasonable cause, suspects that there is, an animal to which that power applies.".")
§ On Question, Amendment agreed to.1230
Lord HARRIS of GREENWICH moved Amendments Nos. 47, 48 and 49:
Page 30, line 7, leave out ("Article") and insert ("Articles").
Page 30, line 7, leave out lines 14 to 19.
Page 30, line 37, leave out ("Article".") and insert ("or the following Article.
§ Powers of entry and search
§ 7B.—(1) For the purpose of arresting a person under the power conferred by Article 7A a constable may enter (if need be, by force) and search any vessel, boat, hovercraft, aircraft or vehicle of any other description in which that person is or in which the constable, with reasonable cause, suspects him to be.
§ (2) For the purpose of exercising any power to seize an animal or cause an animal to be seized which is conferred on constables by an order made under the principal Act and expressed to be made for the purpose of preventing the introduction of rabies into Northern Ireland, a constable may enter (if need be, by force) and search any vessel, boat, hovercraft, aircraft or vehicle of any other description in which there is, or in which he, with reasonable cause, suspects that there is, an animal to which that power applies.".")
§ The noble Lord said: My Lords, these Amendments achieve the same effect in Northern Ireland as earlier Amendments dealing with powers of entry of the police in Great Britain. I beg to move.
§ On Question, Amendments agreed to.
§ Clause 39 [Coroners' inquests]:
Lord HARRIS of GREENWICH moved Amendment No. 49A.
Page 31, line 34, leave out ("or dangerous").
§ On Question, Amendment agreed to.
§ 6.15 p.m.
§ Lord MORRIS of BORTH-Y-GEST moved Amendment No. 50:
§ After Clause 39 insert the following new clause:
§ Repeal of s.3 of Criminal Justice Act, 1961 c. 39.
§ The noble and learned Lord said: My Lords, this matter was discussed in your Lordships' House on 1st February and some of us thought it would be appropriate that your Lordships should have an opportunity of considering it again. As your Lordships will recall, it concerns Section 3 of the Criminal Justice Act 1961 which imposes what has been rightly described as a fetter upon the power of 1231 the judges. No doubt the section was designed with the object of ensuring that in appropriate cases young people should go to borstal rather than to prison. Everyone agrees that that is right, but the section provides that in certain circumstances the court can only pass a sentence of up to six months' or over three years' imprisonment, and it is the submission of those of us who are concerned in this Amendment that that is wholly indefensible.
§ Supposing in a particular case a judge considers that it is quite inappropriate to send a young person to borstal and yet he is satisfied that some custodial sentence must be imposed. He may think that the right sentence is one of 12 months or perhaps some different sentence. He is then told that Parliament has laid it down that in certain circumstances it must be either less than six months or more than three years. With all the knowledge that is possessed in the Home Office, I am sure that noble Lords on the Front Bench will agree that over and over again this section has proved a trap. Furthermore, in my submission it has had the result of producing injustice.
§ On the previous occasion when I moved the Amendment standing in my name, I listened very attentively to the reply of the noble Lord, Lord Harris of Greenwich. Since then I have had the opportunity of reading and reconsidering the answer that he made to the debate that then took place. I venture to submit to your Lordships that the arguments put forward by the noble Lord really are not convincing. They were just two. First, it was suggested that if this section went, there would be a tendency for young people to be in prison to a greater extent or for longer periods. The second argument was that there has been received a report from the Committee that advises the Home Office and that it is proposed to have some new form of custodial treatment.
§ The report to which the noble Lord referred—and he was very courteous in writing to me in advance to explain the course he was going to take—was made in 1974. It may be a splendid report and the proposal that is in mind may be an admirable one. The idea is to amalgamate, so to speak, the various courses that may be open in the case of young people; that is 1232 to say, detention centre, borstal or alternatively imprisonment, and in addition to have a new form of treatment called custody and control.
§ It sounds splendid, but the noble Lord, Lord Harris, told us—and I am sure he is right—that it will not be possible to proceed to implement that scheme for the time being. It has not been possible since 1974. Three years have gone by and from all we have heard from the noble Lord and others sitting near him, financial stringencies will have the result that action is likely to be long deferred. There seems to be no possibility in the near future of having this new proposal considered and, if found to be acceptable, put into practice.
§ What is the result? Are we in the mean-time to go on with a system that really is indefensible? Is it right that if a judge, having considered every aspect of a case, decides that borstal is not a reasonable course to be followed, he must then impose a sentence of imprisonment of up to six months or over three years? I submit that that is both a senseless and a cruel provision and it produces injustice.
§ The noble Lord took the view that if this section disappeared more young people might be in prison. I venture to submit that that suggestion has not been proved, and that on the contrary the indications are the other way. May I illustrate that by referring to one or two cases that have taken place? I refer to the case of McLeod which was in 1966. He was a young man aged 20 who had been before the courts many times. He had been sent twice to an approved school, he had been sent to borstal, he had been put on probation and had been sent to a detention centre. The assistant recorder took the view that he needed punishment and that borstal would be inappropriate. He told the young man, "You will go to prison for 12 months". However, it was pointed out to the recorder that as the young man had been to borstal he could not pass a sentence of less than 18 months because that is what the Statute says. The recorder said, "Then you will go to prison for 18 months".
§ Is it right that in this country we should have a Statute that enforces such a ridiculous result? Of course, a man in that position would go to a court of appeal 1233 and would say, "The judge heard everything; he considered all the facts and the circumstances. He said that I should go to prison for 12 months. Now he says that I am to go for 18 months. Why?". Because there is still a section of an Act of Parliament which says that that must be so. That is one illustration where, but for this section, someone would have been imprisoned for a shorter time than he had to be.
§ On the last occasion I spoke on this Bill I referred to the case of Gillespie. I do not want to reiterate the facts too fully; they are recorded in Hansard of 1st February at columns 787 and 788. The young man was 19 years old and had an appalling record; it was probably worse than the case I have just mentioned. He had been sent to borstal, but he did not think it right that he should have been sent there, so he did not stay. He said, "I do not like this" and he absconded. Having absconded, he committed every kind of further offence and was brought before the court and pleaded guilty. The judge thought that it was quite inappropriate to send him to borstal so he passed a sentence of 21 months' imprisonment. He thought that he could do that because the section provides that if someone has been in borstal for the three-year period he could substitute 18 months' imprisonment. So as the young man had been to borstal the judge passed a sentence of 21 months' imprisonment. However, it was later pointed out to him that under the wording of the section the judge could not say that the young man had been to borstal. He had been sent to borstal, but he had absconded and the judge was told that all he could do was pass a sentence, not of 21 months, which he thought was right, but of 36 months. So the judge passed the sentence of 36 months.
§ The young man went to a court of appeal, and perhaps one can appreciate his line of thought and reasoning. He said, "I am a bad lot; all this is true. But the judge knew all that and sentenced me to 21 months. Later the judge was told that he must impose a sentence which was over 50 per cent. longer than that which he thought was right, so he passed the sentence of three years." The appeal court said that the second thoughts of the learned judge were rather better and that 36 months was the right sentence.1234
§ I turn to a different contex: and refer to a case of death by dangerous driving. My noble and learned friend Lord Dilhorne will be interested in this. The man concerned was a member of the Armed Forces of another nation and was stationed in this country. In fact, he was about to be sent back to his own country. It was a bad case and the judge thought that, had the convicted man been an Englishman, the sentence should have been one of 18 months' imprisonment; but, as the man would soon be going back to his own country, it would not be right for him to do other than pass a custodial sentence. So he said that in all the circumstances he could be very lenient and he gave the man six months' imprisonment. Then it was pointed out to the judge that under the provisions contained in Section 39 of the Criminal Justice Act a sentence of six months involved a mandatory suspension, so what the judge wanted to do he could not do—he could not send the man to prison for six months. The judge thought again and decided to send the man to prison for seven months, and that was the result.
Do not these illustrations show that to impose artificial fetters on a judge is quite senseless and may produce unjust results? Might it be that the whole position has been greatly changed in recent years by the passing of the Powers of Criminal Courts Act 1973? The noble Lord, Lord Harris of Greenwich, will correct me if I am wrong, but is it not laid down under that Act that no imprisonment is to be imposed on a person under 21 years of age unless the court is of the opinion that no other method of dealing with him is appropriate? Section 19(2) says:
No court shall impose imprisonment on a person under 21 years of age unless the court is of opinion that no other method of dealing with him is appropriate: and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances and shall take into account any information before the court which is relevant to his character and his physical and mental condition.
The judge does all that. Our judges have positions of responsibility of which at all times they are conscious. To the very best of their application they try to decide the right course of action.
§ Let us suppose that the judge, following the statutory rule laid down, says, "I have 1235 considered whether borstal would be right, but I think there is no method of dealing with him other than a custodial sentence", and then he proceeds to consider what that sentence should be. He might think that it should not be less than 18 months' imprisonment. Then, having concentrated and tried to do what is right, he is reminded that he cannot do that, and that it must be less than six months or over three years' imprisonment. Is not that a ridiculous provision? Is it not time that we got rid of it? Should we not take this further opportunity of so doing?
Of course it has been considered before. I see the noble Earl. Lord Mansfield, in his place, and I recall that he raised this as long ago as 26th June 1972. I think it was in his maiden speech which, if I may say so, and as the record shows, was greatly appreciated, and upon which the noble Earl was much complimented. At column 606 of the Official Report he said:
But while on this matter"—
this was on a Criminal Justice Bill—
of fetters on the discretion of the court, may I express regret that opportunity has not been seized to repeal Section 3 of the Criminal Justice Act 1961. This is the provision which in general prohibits a court from passing a sentence of imprisonment on a person aged between 17 and 21 and who is thus eligible for borstal training unless the sentence is one of six months or less or three years or more.
The noble Earl went on:
Over the last ten years, this one measure has been one of the most frequent sources of complaint by the courts, not least because it leads to so much injustice.
I submit that those words were justified. Later on the noble Earl said at column 607:
Again and again I have heard judges complaining of this fetter upon what they consider to be the right course to adopt.
The noble Earl gave illustrations of injustices that had resulted. The noble Lord, Lord Harris, will know how the Home Office dealt with the matter then. I think they said, "Oh, but we are awaiting the report of a Committee". What does the noble Lord say now? He said, "Oh, we have had a report of the Committee. It is true it was three years ago and we rather like it, but it is quite impossible to put it into operation. There is financial stringency, you know ". How eloquent the noble Lord is when he says that. But for how long are we to wait until we get rid of this nonsense of saying
that though a judge, fulfilling his statutory duty, says that borstal is inappropriate, yet is told, "This amount and no more".
I happened to come across some lines in a poem of Macaulay's. May 1 just quote one or two lines from it. It begins:
From all the angelic ranks goes forth a groan".
"From all the angelic ranks" clearly refers to noble and learned ex-Lord Chancellors in your Lordships' House, and any other noble Lords who spoke on this matter.
From all the angelic ranks goes forth a groan
'How long oh Lord, how long'
The still small voice makes answer
'Wait and see oh sons of glory,
What the end shall be'.
For how long are we to wait to get rid of a piece of nonsense and injustice?
§ 6.34 p.m.
§ Viscount DILHORNE
My Lords, my noble and learned friend Lord Morris has explained to the House in a most admirable speech the kind of difficulty that this section produces. I do not intend to cover the same ground that he did. I remember what went on before this section was enacted. It was the product of a Tory Government: it is now of course strenuously defended by a Labour Government. But from start to finish it has been the creature of the Home Office. The noble and learned Lord, Lord Hailsham, referred a little while ago to somebody not being willing to abandon his child. This is a clear instance of the Home Office, whose paternity is not in doubt, not being prepared even at this stage to abandon its child.
I should like to go back to the thinking which lead to the enactment of this provision because it is that thinking that has really led to all the trouble, and it is thinking which still affects the noble Lord, Lord Harris. The reason for that provision was that it was thought that if judges could not send young persons to prison for sentences between six months and three years many more young people would go to borstal; the judges would be compelled to send them to borstal instead of to prison. That was on a completely false premise, because I have not ever myself known a judge who would not strain every effort to avoid sending a young person to prison. If he thought, quite apart from the passage of this 1237 section, that it was appropriate to send him to borstal, he would go to borstal there would be no question of a prison sentence. Therefore, I believe that this section started on a wrong basis, and has continued on a wrong basis. I do not believe for one moment that it has led to any persons going to borstal who would, if it had not been enacted, have been sentenced to a prison sentence.
§ Baroness WOOTTON of ABINGER
My Lords, could the noble and learned Viscount say what would have happened to them?
§ Viscount DILHORNE
Certainly, my Lords. As I was indicating, every judge whom I have ever known is most reluctant to send any young person to prison. He does it only if there is no other course open, having regard to the gravity of the offence and all the circumstances. If there is any other course open, he takes this one. The noble Baroness knows as well as I do that there are many other courses open to judges, and they would always take them if they could. That has been my experience, and I think that my noble and learned friends will confirm it.
What has happened since then? My noble and learned friend has indicated the way that judges' powers of passing the right prison sentence, when prison is the only possibility, have been completely shattered, and injustice has resulted. He has dealt with the case of one individual, but there are also cases where you get a gang and two of them are, say, under 21 and two are 22. The right sentence for what they have done would be a sentence of imprisonment for 12 months. Well, if there is no possibility of distinguishing between their guilt, you cannot with any appearance of fairness and justice imprison two for 12 months and two for six months for the same sort of conduct. So what is the result? They will probably all get six months, which, in the eyes of the public, and possibly in the eyes of the convicted persons themselves, will be regarded as a very light sentence.
I cannot think that this section does any good whatsoever. I am comforted by the thought that, by referring the matter to the Advisory Council on the Penal System, the Prime Minister recognised that this section was being harmful 1238 in its consequences. We know what they have reported. So the evil is recognised at least by the Prime Minister. The noble Lord, Lord Harris, does not use those terms in relation to it. He said that he recognises that this is "irksome to the judges". I thought that a curious word to use. It is not irksome to the judges in any personal respects at all. What they complain about is that it impedes the administration of justice. It makes it impossible in certain circumstances for judges to do what is right. That is the basis of it. If a judge sentences someone to imprisonment when he could sentence him to borstal, there is the right of appeal to the Court of Appeal against sentence and the matter can be put right.
I am not going to take up more time in going into the consequences of this provision, but I would say that when judges are appointed—persons of great experience—by the recommendation of successive Lord Chancellors, we ought to have confidence in them and we ought not to tie their hands. We ought not to make it impossible for them to pass what is the right sentence. We know that the Council made these recommendations and we know, to use the words used by the noble Lord, Lord Harris of Greenwich, in the letter he wrote on 24th January, that their recommendations—…would restore to judges the freedom to relate the length of a sentence more directly to the particular offence.That was a wonderful piece of Civil Service language for saying that it would enable judges to pass proper sentences in future, and it was recognition that they cannot do so now.
What are the reasons why it is said that this change cannot be made now? I should like to deal shortly with them, and I think I am right in saying that the main reason is the assumption by the Home Office—I think I am right in saying that Lord Harris, in his speech in Committee, put it forward as his main reason—that it would lead to more persons being sent to prison. That I simply cannot accept. Again, that statement is based on the assumption that judges will send to prison when a borstal sentence would be appropriate. The converse is the case and to my mind there are no grounds for saying that the abolition of this section would lead to a greater population in prison.
1239 Lord Harris went on to say something that I found even more curious when he said that it would lead to an increase in the number of those in general custody; by that I took him to mean in borstal and in prison. I cannot possibly see why that conclusion should follow. It seems that the barrel has been scraped for arguments in trying to support the retention of this provision. I have dealt with most of them. The noble Lord said that if the section were repealed it could lead to a substantial rise in the number of young offenders sentenced to prison instead of to borstal training. That he put in the forefront of his argument, and to my mind it demonstrates that the argument was based on an entirely false premise.
This matter has been raised before. Tonight we have an opportunity to make a very beneficial change in the criminal law. My noble and learned friend Lord Edmund-Davies is here and I hope he will add his voice to our debate. My noble and learned friends Lord Diplock and Lord Salmon unfortunately cannot be here, but they agree with us that it could do nothing but good to remove this section of the Act. I do not know the views of the Lord Chief Justice—unfortunately, he is not with us; but I have not met one judge or recorder or person who actually knows the problems and difficulties of sentencing in the Crown Courts and the superior courts, who defends this section. We have an opportunity tonight to do what the Advisory Council recommended, namely, to restore to the judges freedom to relate the length of sentence more directly to the particular offence. I hope the House will take that opportunity.
§ 6.44 p.m.
§ Lord EDMUND-DAVIES
My Lords, as one who for years has had the baffling experience of trying to work this ridiculous Section 3 of the 1961 Act, the only good thing I can say about it is that it is fortunately unique. I can understand an Act of Parliament which required that no person under 21 should be dealt with other than by sending him or her to borstal; I would not agree with it but I should understand it. I wholly understand, and have always wholly agreed with, the provision of Section 19 of the 1973 Act, that no one should be sent to 1240 prison if he or she is under 21 unless, after proper investigation and report, the court is satisfied that no other possible course is open. Those are wholly understandable approaches.
What we have in this case is, I repeat, unique. One has to postulate that the judge is driven to the conclusion that in all the circumstances, including of course the gravity of the case, although the person charged is under 21, there is no course open other than an immediate custodial sentence. That is the first thing, and one must approach the problem on the basis that that is a judgment arrived at with great gravity and after considerable thought, because it is a dreadful thing to have to send a person under 21 into immediate custody.
As my noble and learned friend Lord Morris of Borth-y-Gest said, if a person has been to borstal before and has served his borstal sentence, but not otherwise, then one may impose a sentence of 18 months' imprisonment. Indeed, also if he has previously served a sentence of imprisonment of not less than six months, a sentence of 18 months may be imposed, but not otherwise. The judge is driven to an abdication of one of his basic duties, namely, of deciding the case and disposing of the matter of sentencing in accordance with what he believes to be just. I should have thought that one of the prime requirements of a judge is to deal with the odious task of sentencing by arriving at as just a conclusion in all the circumstances as they appear to the judge. This section deprives the judge of that opportunity of doing his duty. He has to say to himself, "This is a dreadful case and I am driven to the conclusion, having had reports, that an immediate term of imprisonment is called for"; and then he thinks, "It is the first time he has faced this situation where he is going to be sent to prison; I think that what will meet the case is 12 months", or it could be 15 or 18 months. He cannot impose any of those sentences.
While of course it would be improper for me to refer to specific cases, which I have dealt with—McLeod and Gillespie are two cases reported and referred to by Lord Morris of Borth-y-Gest—let none think that, by citing merely two cases, they could not be multiplied a large number of times. It would be an easy task to cite 1241 to your Lordships a large number of cases where the judges have said, "I am hamstrung in this case. I cannot dispose of it in the way I think justice for the accused person, and of course justice for the country, requires. I maintain that this section, although I have no doubt beneficently intended, has, to repeat the phrase I used, hamstrung judges and has prevented them from dealing with cases justly. I hope the section will be banished from the Statute Book.
§ 6.50 p.m.
§ Lord WIGODER
My Lords, I have a few further illustrations of what the noble and learned Lord, Lord Edmund-Davies, had in mind. In 1964, in the case of Lowe, the then Lord Chief Justice and the present Lord Chief Justice were in a court in which a man had been appealing against a sentence of three years' imprisonment for assault. Lord Parker said:The Court would like to say that they would consider that a sentence of two years' imprisonment were appropriate were it not for the coming into force of the Criminal Justice Act.In the case of McLeod which has already been cited, where the Recorder had to increase the sentence from 12 months to 18 months, the Court of Appeal, presided over by Lord Parker, felt obliged to support the sentence. In the case of Hughes in 1968—this was the man who had absconded from borstal—Mr. Justice Roskill, as he then was, said, perhaps rather wearily,This is yet again one of the anomalies to which this court has often referred and to which the relevant subsections of Section 3 of the Criminal Justice Act all too often give rise.In 1971, Lord Justice Megaw said, in the case of Pike,This appeal is concerned with yet another of the many problems which arise out of the limitations imposed by Section 3.He concluded his judgment by referring to counsel's argument, by thanking him for his clear and forceful argument,which necessarily, though unfortunately, raises intricate questions of statutory interpretation of both the 1961 Act and 1967 Criminal Justice Act. We say 'unfortunately' because it is undesirable that matters of this sort relating to the powers of the court as to sentence should be anything other than simple, clear and straightforward.Finally, in 1975, the case of Quinn took place, where Lord Justice Scarman had to deal in the Court of Appeal with a young man of 20 who had hit a man on the head with a milk bottle and stabbed 1242 him with a knife. This was a man of previous good character and the judge had said at the trial that he would have liked to give less than three years but that six months would have been farcical and borstal would have been inappropriate. The Court of Appeal felt obliged to support a sentence of three years' imprisonment.
I invite the Government to recognise that judges are at all times anxious not to send young persons to custodial sentence and that, if a custodial sentence is necessary and borstal can possibly be regarded as appropriate, it is a sentence of borstal that will be passed. If a sentence of imprisonment has to be passed as the only alternative, the judge should be free to pass as short a sentence as he possibly can in the circumstances of the case.
§ Lord HARRIS of GREENWICH
My Lords, I should like to begin with two amiable references to the noble and learned Viscount, Lord Dilhorne. However, before doing so I should just point out that we are going over the ground that we covered in some detail on Committee. On that occasion—I believe, to the slight surprise of the noble and learned Lord, Lord Hailsham—as a result of an agreeable social occasion that was taking place that evening, the Government found themselves in the very unusual position of defeating the entire combined resources of all other parts of the House.
§ Lord HARRIS of GREENWICH
I dare not speculate, my Lords. Unhappily, I was here and not at the other function. I repeat that I wish to begin with two references to the noble and learned Viscount which are intended to be amiable, all the more so because he is sitting where he now sits. Had he been sitting anywhere adjacent to the noble and learned Lord, Lord Hailsham, I should of course remind him, as I believe he reminded the House on the last occasion, that he occupied the office of Attorney-General when this far-sighted proposal was put on the Statute Book.
§ Viscount DILHORNE
My Lords, the noble Lord cannot try to put any of the burden that rests on the Home Office on my shoulders.
§ Lord HARRIS of GREENWICH
By one of those happy chances, my Lords, I was just coming to that issue. I am aware that there are so many ex-Lord Chancellors present this evening—I am not sure what is the collective noun for a number of Lord Chancellors—that the Home Office is very much in a minority. I am bound to admit that I do not know quite what happened in 1962. I assume that there were things called "Home Affairs Committees" and august organisations of that sort where senior members of the Government could argue out any policy differences that there might be. No doubt I have committed a grievous breach of the Official Secrets Act by indicating that such Committees now exist; but I should be slightly surprised if they did not exist when the noble Lord, Lord Butler, was Home Secretary and when he, as the Home Secretary of the time of the passing of the Act in question, put the section on the Statute Book.
My second point is that I realise that I shall not carry the noble and learned Viscount with me when it comes to discussing the public expenditure implications of this proposal. They are significant, as I shall indicate. The noble and learned Viscount was kind enough to say that a point which I had made earlier—namely, that one proposal put forward by the noble Lord, Lord Wigoder, would cost £4 million—was irrelevant. I was slightly surprised to hear that particular argument coming from the lips of a member of a Government which, I remember, lost a Chancellor of the Exchequer because of a difference on a matter of public expenditure. It seems to me that when I am putting forward, as I am this evening, the views of the Home Office, it is only right that I should explain not only any philosophical differences that there may be between noble and learned Lords and ourselves on this matter but also what will be the implications in terms of prison numbers.
§ Viscount DILHORNE
My Lords, when I said that what the noble Lord had said about £4 million was irrelevant, I meant that it was irrelevant to the argument addressed by the noble Lord, Lord Wigoder, not that the expenditure of £4 million was something that one could treat as irrelevant at the present time. The noble Lord should not take my words 1244 out of context. I thought that I had made myself clear.
§ Lord HARRIS of GREENWICH
My Lords, the noble and learned Viscount will, I am sure, be grateful, because any student of Hansard in the future who might have been as misled, as I was, by what the noble and learned Viscount said on that occasion, will now realise that he, like myself, was wholly mistaken.
The position on the Amendment is as follows. There are two reasons why we are opposed to it. The first arises from the central purpose of the penal system for young offenders and the second from the harsh practical question which has so far not been discussed in this debate of how an already seriously overcrowded prison system could cope with the consequences of the change that has been proposed. The noble Lord, Lord Wigoder, looks sceptical. I wish that he would listen to the argument because I think that it is a rather persuasive one in terms of the actual effect upon numbers, and I believe that it is very important that the House should realise what the consequences of the passage of an Amendment of this sort could be.
§ Lord WIGODER
My Lords, I was looking sceptical because of the innumerable illustrations which showed that shorter sentences would be passed if the Amendment were accepted.
§ Lord HARRIS of GREENWICH
My Lords, I am aware of those illustrations, but I am afraid that the figures do not support the noble Lord's argument. In fact the figures demonstrate exactly the opposite. However, I shall come to that in a moment, if I may. I should like to begin with the general question of penal policy.
As your Lordships will know—certainly if they did not know it before this debate began they will do so now—the effect of Section 3 of the 1961 Act is to create a presumption that a young offender will be sent to borstal rather than to serve a term of imprisonment. If Section 3 is repealed, it will throw upon the courts a clear choice between prison on one side and borstal on the other. I fear that there would inevitably be a risk of a tendency towards polarisation. Some courts might say to 1245 themselves, "Is this young man in need of punishment—in which case we will sentence him to imprisonment—or is he in need of training?—in which case we will sentence him to borstal". A distinction as sharp as that would run counter to the very essence of the proposals which were put forward by the Advisory Council on the Penal System. Far from encouraging a situation in which there is a variety of carefully graded treatments available for the young offender, it would encourage a situation in which a sharp and, I fear, positive distinction was drawn between borstal training and punishment in a prison. I believe that there is a real risk of a development of just that kind if an Amendment on the lines proposed were carried.
I accept at once that Section 3 has failings and I would not for a moment suggest that, if Section 3 did not exist on the Statute Book today, I should now be putting forward a proposal on behalf of the Government that it should be written into the Bill. Instead, I am sure that following the report of the Advisory Council on the Penal System, we should now seek to choose some halfway house between the clear presumption that young offenders should go to borstal and the presentation of a sharp choice to the courts between borstal and prison. As I have already said when this same Amendment was debated in Committee, resources are severely limited and it is difficult to make profound changes of this kind.
Therefore we are faced with the clear choice of whether we leave Section 3 as part of the law or move away from it, and in that kind of situation we must consider what the consequences would be if Section 3 were to be removed from the Statute Book. It begins, with all its failings, with one practical advantage. It is part of a system which we can operate. At the moment, the pressures on the Prison Service are so intense that I seriously fear for the consequences if we were to disturb the delicate balance of sentencing powers available to the courts in this particular area.
At the moment we have 2,000 young prisoners in our prisons; that is, young men between the ages of 17 and 21. In common with adult prisoners, their accommodation is seriously inadequate. We have already been forced to reclassify 1246 numbers of young men as adult offenders and to place them in accommodation intended for adult prisoners, while others are housed in wings of adult prisons where it is almost impossible to provide the kind of training facilities we would wish.
So already we have the sad spectacle of young men in this category—between the ages of 17 and 21—who have been sentenced to prison in the expectation, no doubt, that they would be subject to the distinct régime which Parliament has considered should apply to prisoners under the age of 21, but in fact serving their sentences in the company of older and far more sophisticated criminals. The overcrowding in this part of the system is preventing us giving a substantial number of our young prisoners the kind of treatment which Parliament and successive Governments have clearly decided it is important that they should have.
Any increase in the number of young prisoners is likely to mean that more of them will serve their sentences as adult prisoners. We simply do not have the extra accommodation available in which we can create a separate regime for young prisoners. Of course it is possible to argue that, following the repeal of Section 3, there will be some saving in the number of borstal places; if they are in fact sentenced to a term of imprisonment, it will at least save their places so far as borstal is concerned. The problem about this argument is as follows. It is difficult to accept that those who propose to repeal Section 3 do so with the intention that the courts should pass shorter sentences than those undergone at borstal at the moment. After all, the courts are already free to pass sentence of six months or less on any young man who may appear before them.
I think it is clearly to be inferred from the proposal to repeal Section 3 that it is intended that the courts will make use of their new freedom to pass longer sentences than those involved in borstal training, and that will mean an increase in the prison population. In Committee I produced figures to show the degree of overcrowding suffered by those young prisoners who are now forced to serve their sentences in our local prisons, and I have touched on this point already. I cannot produce figures this evening to show precisely how many young prisoners will need to be crammed into the same prisons if Section 3 1247 were to be repealed. But I can certainly do the next best thing and show the situation in reverse; that is, the effect of the introduction of Section 3 on our young prisoner population. Section 3 came into force on 1st August 1963, and in 1964, following the introduction of Section 3, the proportion of young prisoners dropped sharply. The number of young men sentenced to a term of imprisonment, as distinct from borstal training, dropped and the average number of young prisoners, compared with borstal trainees, dropped.
I should like to take just one example. In 1961, 41 per cent, of young men given custodial sentences were sentenced to terms of imprisonment. By 1975, the proportion had dropped to 31 per cent.; that is, from 41 per cent, to 31 per cent. That is the decline in the number of young prisoners in penal institutions as a result, in my view, of the passage of Section 3 of the 1961 Act.
I must say that it is impossible to answer the question of exactly how many more people will go to prison if this section were to be repealed. All one can say is that if Section 3 did not exist and there had not been this change between the years I have just illustrated—1961 and 1975—there would now be substantially more young men in prison rather than in borstal in this country, and the conditions affecting young men in many young prisoner establishments are at the moment quite appalling. It is one of my responsibilities to go around and see the prisons, and I know that a number of your Lordships have done so as well, particularly the noble Viscount, Lord Colville of Culross, who did a great deal of this when he was my predecessor in the previous Administration.
If we tonight persuade ourselves that it would cost us nothing if Section 3 were to be repealed, I think that we would find that we were in for a very disagreeable surprise. The principal consequence of the 1961 Act has been to cause a dramatic fall in the number of young men who are sentenced to terms of imprisonment. That is a fact, and on the basis of these statistics it is quite impossible to ignore the reality of the situation.
Of course I would accept, with the noble and learned Lord, Lord Morris of Borth-y-Gest, that there may have been 1248 some examples which point in the contrary direction. I would not for a moment dismiss the examples he gave. But although it is possible to admit that there may have been some occasions on which young men have received longer sentences as a result of Section 3, what I am saying this evening is that, looking at the broad totality, the fact is that there has been a significant reduction in the number of young men who have been sentenced to imprisonment as a result of the 1961 Act. I say this quite bluntly to the House: the idea that we are in a position at the moment, at a time when we have very nearly the largest prison population in this country's history—just on 42,000—suddenly to start producing new facilities to put young men in prison seems to me a rather curious order of priorities. I do not believe that at the moment it would be prudent to pass an Amendment of this kind, and for the reasons that I have given this evening I hope that the House will reject it.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, this matter was very fully debated previously, and I expressed my views at greater length then than I will now. On this occasion I simply wish to remind the House of some facts which it should bear in mind before taking this matter to a Division. On 17th July 1972 an identical Amendment was moved and was rejected by a majority, after having been opposed by the Government of the day in the form of my noble friend Lord Colville of Culross, every bit as impressive, if he will allow me to say so, as the noble Lord, Lord Harris of Greenwich. But who voted for the Amendment on that occasion? I have the Division List in front of me: Lord Donaldson of Kingsbridge, Baroness Bacon, Lord Beswick, Lord Gardiner, Lord Jacques, Lord Janner, Lord Milner of Leeds, Baroness Phillips, Lord Shackleton (the then Leader of the Opposition), Lord Stow Hill, and Lord Taylor of Mansfield.
Well, well, my Lords, circumstances alter cases! Perhaps there is one name I ought to have mentioned: in the Not Contents Lobby there was the Lord Chancellor, Lord Hailsham of Saint Marylebone——
§ Lord HARRIS of GREENWICH
My Lords, the noble and learned Lord 1249 anticipated the question that I was about to rise and ask.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I am not quite so guileless as to lead with my chin, but what I say to your Lordships is this. Circumstances alter cases, of course. Ministers come and go. Even Lords Chancellor, if the noble and learned Lord will forgive me, come and go. But it is the same silly old Home Office. So if the noble and learned Lord chooses to press his Amendment, I am going to vote against them this time.
§ Lord GIFFORD
My Lords, many of us may have seen on the television some weeks ago a programme put out by the BBC "Panorama" team about the conditions in British prisons today. It showed a deplorable situation of overcrowded prisons, with prison officers saying that they could not cope. It was a matter which was recognised by many who commented on it as being something of a national scandal. It is fully open to Parliament to say that they do not wish to see any young person go through that ordeal at present. My only criticism of the law which is sought to be amended, of the section which it is sought to repeal, is that the fetter put on the Judiciary is too slack. It is anti-social to ask people under 21—not yet mature people, whatever they may have done—to undergo something which is not rehabilitation, not training, but one of the most likely experiences to lead them on to adult crime that anyone could think of. My Lords, there are already fetters upon judges when they deal with young offenders, and no one complains about that. It is not open to a court to sentence a young person under 17 to prison at all, whatever may be the thought about the heinousness of his or her offence.
Much has been said in this debate about the experience of judges, the care with which they consider sentencing and the unpleasant duty that they have of sentencing young people to prison. To that I would say this, that if I were to be asked what body is most experienced in the rehabilitation of young people and young offenders, it would not be the Judiciary. Many who have to deal with these cases have not much judicial experience, not much experience of penology. 1250 There are occasional sentencing conferences, but no organised course of training for judges who sentence; and many of them, in my experience, over sentence. The judge will see before him, in many cases, someone whom he will regard as a hooligan, and he will see what he conceives to be his public duty. He will not see a young person who is also, if at all possible, in need of rehabilitation, of training, and who should be kept out of the prisons rather than pushed into them. I believe there is a major issue of principle on this Amendment: that it is right, as a matter of policy, to impose fetters on the courts in dealing with young people; and I hope the House will reject this Amendment.
§ Viscount HANWORTH
My Lords, in speaking to this Amendment I require the indulgence of the House on at least two counts. The first and most important one, of course, is that I was not here at the start; but what I should like to say can be said very simply. It is that I do not think that, today, we have the alternatives which we ought to have in dealing with offenders. We have, of course, the idea, the excellent idea, of young people reporting daily, and so on, and doing something in a specific centre; but I wonder whether we have considered seriously the possibility of labour camps. That is an unpleasant name because, of course, it has a connotation with what happens in Communist countries. But it happens in Sweden, so I believe, If you are convicted of driving under the influence, to a labour camp you go. Now there is plenty of opportunity in forestry, or something like that, to do constructive work which would not interfere with the unemployment situation or with the unions. Having heard what has just been said, I seriously think that we ought to consider these alternatives and that the cost of doing so would not be very great.
§ Lord MORRIS of BORTH-Y-GEST
My Lords, if I am entitled to a light of reply may I add a few words? I listened, as I always do, most attentively to everything that the noble Lord, Lord Harris of Greenwich, said. In my submission, he is making an entirely unwarranted assumption in suggesting that if this section disappears from the Statute Book then the result will be, as a consequence of 1251 that, an increase in the prison population of young people. The situation with which we are dealing, the 1961 Act, must be considered with reference also to the 1973 Act, to which I referred. The position is that by Statute a judge must not send anyone under 21 to prison unless he is satisfied that no other course is appropriate. So, my Lords, the noble Lord, if he will permit me to say so with deep respect, is really not facing up to the situation. It is no longer, in what we are debating, a choice between prison and borstal. We are debating the situation where, in the case of a young person, of someone under 21, the judge, having thought it all out, having heard reports and having had every fact drawn to his attention, decides, and no doubt decides with great reluctance, "I cannot avoid sending this man to prison; borstal just would not do."
So your Lordships are not faced with the situation, borstal or prison. We are here dealing with a situation in which the judge has had to decide that borstal is out of the question: it is not suitable, it is not right in the public interest, he cannot be sent to borstal, it would be inappropriate—and, being inappropriate, and the offender being under 21, the judge has the power to send the young person to prison. Then comes the question, "For how long?", and it is then that there
§ comes in this restriction, which I really venture to submit to your Lordships is now long out of date, has been wholly discredited, has produced great confusion in the courts and has been rejected by all those in the courts who have been administering justice.
§ The choice at that stage is not borstal or prison. Borstal has been ruled out because the judge has decided it is inappropriate; and he will consider prison in the case of somebody under 21 only if, reluctantly, he says that borstal will not do. Then, when he is faced with the situation that it must be prison, is it right that there should be this restriction of under six months or over three years, when a judge, with all his experience, may think that the right course in the interests of justice, in the interests of the young man and in the interests of the community is something in between? Are we to preserve a section now, I submit, outdated and productive of a great harm, that curtails a judge from doing what he thinks is his duty? I hope that your Lordships will accept this Amendment.
§ 7.20 p.m.
§ On Question, Whether the said Amendment (No. 50) shall be agreed to?
§ Their Lordships divided:
§ Contents, 38, Not-Contents, 23.1251
|Auckland, L.||Edmund-Davies, L.||Morris, L.|
|Avebury, L.||Falkland, V.||Morris of Borth-y-Gest, L. [Teller.]|
|Barrington, V.||Gladwyn, L.|
|Beaumont of Whitley, L.||Gray, L.||Mottistone, L.|
|Belstead, L.||Hailsham of Saint Marylebone L.||Mowbray and Stourton, L.|
|Brougham and Vaux, L.||Hanworth, V.||Northchurch, B.|
|Carr of Hadley, L.||Hornsby-Smith, B.||Rankeillour, L.|
|Coleraine, L.||Long, V.||St. Just, L.|
|Colwyn, L.||Lyell, L.||Simon, V.|
|Cullen of Ashbourne, L.||Macleod of Borve, B.||Swansea, L.|
|de Clifford, L.||Mansfield, E.||Trefgarne, L.|
|Denham, L.||Merrivale, L.||Ward of North Tyneside, B.|
|Dilhorne, V. [Teller.]||Monck, V.||Wigoder, L.|
|Brockway, L.||Goronwy-Roberts, L.||Snow, L.|
|Champion, L.||Hale, L.||Stedman, B. [Teller.]|
|Collison, L.||Harris of Greenwich, L.||Stewart of Alvechurch, B.|
|Donaldson of Kingsbridge, L.||Henderson, L.||Strabolgi, L. [Teller.]|
|Douglass of Cleveland, L.||Lovell-Davis, L.||White, B.|
|Elwyn-Jones, L.(L. Chancellor.)||McCluskey, L.||Winterbottom, L.|
|Gifford, L.||Pitt of Hampstead, L.||Wootton of Abinger, B.|
|Gordon-Walker, L.||Ritchie-Calder, L.|
|Resolved in the affirmative, and Amendment agreed to accordingly.|
§ 7.28 p.m.
§ Clause 42 [Increase in maximum amount of compensation which may be ordered by magistrates' court]:
Lord HARRIS of GREENWICH moved Amendment No. 52:
Page 33, line 30, leave out ("completed") and insert ("committed")
§ The noble Lord said: My Lords, I beg to move Amendment No. 52, which is a drafting Amendment.
§ On Question, Amendment agreed to.
§ Clause 43 [Power to alter sums specified in certain provisions]:
Lord HARRIS of GREENWICH moved Amendments No. 53 to 56 en bloc:
Page 33, line 34, leave out ("or sums").
Page 33, line 35, leave out ("were") and insert ("was").
Page 33, line 37, leave out ("or sums").
Page 33, line 39, leave out ("or sums as appear") and insert ("as appears").
§ The noble Lord said: My Lords, with the agreement of the House, I beg to move Amendments No. 53 to 56 en bloc. These are minor drafting Amendments consequential on acceptance on Committee stage of the Amendment to remove small thefts provisions from the Bill.
§ On Question, Amendments agreed to.
§ Lord DONALDSON of KINGSBRIDGE moved Amendment No. 56A:
Page 33, line 43, at end insert:
(" ( ) paragraph (a) of section 29 above;").
§ The noble Lord said: My Lords, there is in Clause 43 of this Bill a power to increase by order the maximum fine which may be imposed on summary conviction for an offence triable either way if it seems to the Secretary of State that such an increase would be warranted by a change in the value of money. This Amendment expressly provides that it will become possible to increase the maximum fine which may be imposed on conviction of an offence of small criminal damage, which Clause 23 of the Bill makes purely summary. The maximum fine for such offence may be found in Clause 29 and stands in the Bill at £500. This is half the maximum fine which may be imposed on summary conviction of an offence triable either way and it is logical that it should remain 1254 connected to this maximum line. If we did not have the power which this Amendment will supply to increase this maximum fine, then the differential between the two will get exaggerated as the fine for offences triable either way is in the future increased.
§ On Question, Amendment agreed to.
§ 7.30 p.m.
Lord DONALDSON of KINGSBRIDGE moved Amendment No. 56B:
Page 34, line 19, after first ("Act") insert ("(except paragraph (a) of section 29)").
§ On Question, Amendment agreed to.
Lord HARRIS of GREENWICH moved Amendments Nos. 57 and 58:
Page 34, line 32, leave out ("proviso (b) to section 46(7) below") and insert ("Schedule 11 to this Act").
Page 34, line 33, leave out ("competed") and insert ("committed").
§ The noble Lord said: My Lords, with the leave of the House, I will move these Amendments en bloc. They are drafting Amendments. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 44 [Provisions applying to Scotland]:
§ The noble Lord said: My Lords, this is consequential on Amendment No. 39A. I beg to move.
§ On Question, Amendment agreed to.
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 59:
Page 35, line 1, at end insert ("and Schedule 11;").
§ The noble Lord said: My Lords, the Amendment ensures that the transitional provisions which affect the operation of the penalty Amendments in the Bill will apply also to Scotland. I beg to move.
§ On Question, Amendment agreed to.
Lord DONALDSON of KINGSBRIDGE moved Amendment No. 60:
page 35, leave out line 4.
§ On Question, Amendment agreed to.
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 61:
Page 35, line 7, at end insert ("Health and Safety at Work etc. Act 1974,").
§ The noble Lord said: My Lords, the Amendment to Schedule 9, which this Amendment applies also to Scotland, ensures that there will be no limit on the amount of fine which may be imposed on indictment for an offence against regulations made under the Health and Safety at Work Etc. Act 1974. I beg to move.
§ On Question, Amendment agreed to.
§ The noble and learned Lord said: My Lords, Amendment No. 62 is a paving Amendment, and I should also like to speak to Amendments Nos. 90, 91, 92 and 102. These Amendments are to achieve the same purpose. The main provisions in the Bill for the increase in summary fines derive from the James Report, a report about courts in England and Wales, though where statutory offences extend to Scotland they have also been increased. But one effect of this would be to put the fines for statutory offences in Scotland out of line with those for common law offences until there was an opportunity for further Scottish legislation. This would be unfortunate since many of the more serious offences dealt with summarily—for example, those relating to violence or football hooliganism which are statutory in England and have enhanced fines under this Bill—are dealt with at common law in Scotland. Accordingly, the Amendment proposes to raise to appropriate levels the general powers of the district court—which is the lower court—and the sheriff summary court to deal with common law offences. The Amendments also make corresponding increases in the courts' powers to impose caution— 1256 that is security—for good behaviour and the new levels of fines and caution are all made subject to the inflation-proofing provisions of the Bill.
§ Initially, Scottish Ministers were reluctant to allow changes to be made in Scottish criminal law and penalties in a Bill of this kind which is largely concerned with criminal law and procedure in England and Wales. But of course had no Amendments of this kind been made the provisions in Scotland would have gone very much out of line with those in England and that would have been anomalous. Accordingly, these Amendments are deemed to be necessary.
§ On Question, Amendment agreed to.
§ Clause 46 [Citation, etc.]:
§ Lord HARRIS of GREENWICH moved Amendments Nos. 64 to 67:
Page 36, line 28, leave out from beginning to end of line 38 and insert—
(" ( ) Without prejudice to any other transitional provision contained in this Act, the transitional provisions contained in Schedule 11 to this Act shall have effect.").
§ Page 36, line 39, leave out ("the proviso to subsection (7) above") and insert ("Schedule 11").
§ Page 36, line 41, leave out ("that subsection") and insert ("subsection (7) above").
§ Page 37, line 5, after ("section") insert ("and paragraph 4 of Schedule 11").
§ The noble Lord said: My Lords, I beg to move Amendments Nos. 64 to 67 en bloc. These Amendments introduce Schedule II to the Bill, a new Schedule, which seeks to amplify the arrangements for the coming into force of the penalty changes in the Bill. It is standard practice to meet the requirements of Article 7 of the European Convention on Human Rights which, quite properly, provides that no one should be liable to the increased penalties in respect of an offence committed before increased penalties were available. Clause 46(7)(b) was intended to provide that this should be the case, but the penalty changes in this Bill, linked as they are to changes in the mode of trial, are more complex than in previous similar pieces of legislation. We have therefore thought it necessary to explain in more detail exactly how the penalty provisions should operate, and it is convenient that this should be done in a Schedule.
§ On Question, Amendments agreed to.