HL Deb 14 March 1977 vol 380 cc1352-404

7.10 p.m.

Lord HARRIS of GREENWICH

My Lords, I beg to move that this Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Harris of Greenwich.)

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I rise only to protest against the way in which this Bill is being treated. There is a very thin House. It is now ten minutes past seven. I daresay that there are about to be discussed some of the most important Amendments. From what I can see of them, it is quite likely that some noble Lords will wish to divide the House. It is obvious that no kind of serious or proper view of the House can be obtained in the present circumstances, and I must protest against this procedure with all the vehemence in my power.

Lord HARRIS of GREENWICH

My Lords, I regret, as much as the noble and learned Lord does, the fact that we are beginning at this stage of the evening. But we have devoted, and rightly so, a substantial amount of time to this measure. I do not think seven o'clock is an unreasonable time at which to begin consideration of this Bill, and I think we must get on with it. We have taken, very properly, a lot of time with it and we must try to conclude the discussion of the Report stage. We are now indeed on the third day—again, no complaint at all is being made about that—and I feel it is not unreasonable for the Government to ask for consideration of this matter at this time.

On Question, Motion agreed to.

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

Lord BEAUMONT of WHITLEY moved Amendment No. 68A: Page 39, leave out lines 32 to 38.

The noble Lord said: My Lords, this Bill has the effect of lowering the penalties for male soliciting and making the offence triable only summarily. My Amendment is to restore the status quo, and I can only hope that it is so drafted that, if carried, it would do that. Of course I would welcome the first part of the proposal in the Bill to lower the penalties, if it did not carry with it, as it obviously must do, making the offence triable only summarily. I feel, and so do the greater majority of those representing homosexual public opinion in this country, that this produces a great many dangers and troubles. But they are content—if that is the right word—or prepared voluntarily, to put up with the higher penalties, if only they can have the right to go for trial before a jury, because they feel that only in that way can the danger of wrongful decisions, and indeed of more prosecutions, be avoided.

I think everyone in this House would agree that, looked at in one way, this is a minor offence and should come into that category. Indeed, it probably ought to end up merely as part of a new offence of public nuisance. Although regrettable and deplorable, this offence does not do any very great harm, nor, on the whole, do the courts and informed opinion put very much weight on it. But it is not minor from the point of view of the person concerned, and this is so in a way totally different from any of the other offences which are named in this Schedule. It really can be calamitous from the point of view of the person concerned. It can involve loss of job, although it has absolutely nothing to do with a person's ability to do the job. I know that there is a right of appeal against that, but, nevertheless, it is a very real threat. Only recently, there was a case of someone being fired from a job merely for coming out and admitting to being a homosexual. It can, of course, cause the break-up of a marriage. It can cause the greatest distress to other people in a person's immediate entourage and family. As I say, I believe that it is incomparable with anything else in the Schedule.

The James Committee, on which this part of the Bill is based, said that the criterion should be seriousness in the eyes of society. There are two arguments which could be made against that, and which I propose to make. The first is that a very different situation is raised when, although in the eyes of society the offence may not be great, it still remains a very serious offence in the eyes of a considerable proportion of society; and that is so with this offence today. Secondly, I am glad to know that the Government have not entirely followed James. Small thefts have already been taken out of the Schedule. The principle has been breached, and I suggest that, as part of this welcome flexibility, so it should be in this case.

Prejudice exists very much and very heavily in this matter, and it is no wonder that accused people in cases of this kind often wish to be judged by magistrates, rather than by juries. We all know that magistrates do their very best to be unprejudiced, but they cannot always overcome prejudice. It is one man as against 12. Very often, particularly in certain parts of the country, magistrates are coming up against a large n umber of these cases. They tend to get rather tired of them and say, "There is too much of this going on ". There is also the situation that a very great many of these cases depend entirely upon police evidence, and it is often almost impossible to deploy a defence unless one knows what the prosecution case is to be. As I am sure the noble Lord, Lord Harris, will know, there have been a number of cases where the accused was acquitted because the defence was able to make the rather detailed measurements, to investigate timing and to prove that the accused could not have committed the offence. So for those reasons I suggest that we should think again about this offence being in the Schedule.

I can see various objections which the Government may make to this Amendment, such as expense and time. I do not want to be overly cynical, but I think that if we did not carry this Amendment there would be many more prosecutions and I should have thought that the consequences would just about balance out. There is the principle of the James Committee's Report, and the principle established; but, as we have seen, that has already been breached, and I do not think this point about whether a certain section of society regards an offence as extremely important has been sufficiently considered.

There is also the other point that this merely brings about equality for the sexes, in that it reduces the level of the offence to that of prostitution. The answer to that is that, as a matter of practice, prostitutes are cautioned, but, also as a matter of practice, men soliciting do not appear to be. It is a difficult area, but it seems to me that the arguments of humanity are overwhelming in this case and, to give the Government their full due, all the other arguments are only finely balanced. I ask the noble Lord, Lord Harris, on this occasion to see whether the Government can exercise the necessary humanity to guard against injustice in a case where the danger of it seems to be rather more than is usual. My Lords, I beg to move.

7.19 p.m.

Lord GARDINER

My Lords, I support this Amendment. When I was a young barrister, a highly respected Queen's Counsel whose practice was almost entirely in the criminal courts, in which he had spent his life—sometimes prosecuting, sometimes defending—said to me: "Nothing would ever persuade me to go into a public convenience in Central London. The risk of finding two plain clothes men there, who had recently been asked by a superior officer what they had been doing lately as they had not produced any results, is not a risk which any sensible man would take. If my bladder was bursting", he said, "I would sooner pee in the streets ". He may have been wrong and times may have changed, but the position of an innocent man who is not a homosexual, faced with two plain clothes men and their notebooks—note-books which, as my noble friend Lord Gifford reminded us at the Committee stage, the Court of Appeal has said it is quite in order for them to compile together jointly—is full of difficulty. When asked: "Are you really suggesting that these two officers of unblemished character have invented something which never took place at all?", if you are wise you say, "No, I am only suggesting that they are mistaken". Sometimes the circumstances are such that you cannot do that, but if you can, you do so, because otherwise you know how embarrassing the case would be to the justices. I do not think that my noble friend Lady Phillips will accuse me of bias against justices because everybody in the country knows that I am an enthusiast about justices.

The point was put in a letter to my noble friend Lord Harris of Greenwich which the Law Society—they have no axe to grind as between prosecution and defence—sent to him on 10th January. The Law Society were dealing with assaults against the police, but in my submission the reasoning is the same. They said: …in offences of this kind, the complainant, that is, the constable assaulted, is likely to be well known to the local magistrates' bench, so that many, perhaps most, cases will in any case have to be brought in, or referred to, courts outside the district in which the assault occurred—though this could be a magistrates' court, we think that, taken in conjunction with the other reasons for trial on indictment, it is an argument for trial in a Crown Court ". If it is so embarrassing to the local magistrates—one can well understand that this may involve a police officer upon whose evidence they have been accustomed to rely—and if on the evidence they feel driven to find that he has invented something, what will they do when he gives evidence before them in another case the next week, and the week after that, and the week after that? Therefore, as the Law Society say, more often than not the case will have to be referred to some other magistrates' court.

I am not so much concerned with the homosexual as with the person who is not a homosexual. In any system of justice occasionally innocent people must be convicted. Of course, the ordinary man has no idea what the case against him is when he is charged with soliciting in a public convenience; he has never heard such a case. It is an unpleasant subject, but legislators have to know what happens in real life, and in fact the evidence may vary a great deal. They may say, "You were masturbating while standing at the urinal, to draw attention to yourself as a homosexual". They may merely say, "You smiled at the man next to you, who appeared to be annoyed"; or, "You spoke to somebody who appeared to be annoyed"; or even, "While you were in the convenience two men came out who appeared to be ruffled"; or, "You went into a WC cubicle and they, stooping down on the floor, saw that something or other was happening in there ".

It is practically never the case that the people who are said to have been annoyed are called. It is the policeman who arrests you who is called. It is the individual policeman who decides on a prosecution, and he prosecutes. The individual policeman presents the case, gives the evidence and cross-examines you. Perhaps this is the high-water mark of the deficiencies of not having in this country an independent prosecution service.

Therefore, I respectfully support the Amendment, first because the House has already decided in Committee that the gravity of the offence ought to be taken into account. As the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, for any ordinary man this is a much graver offence than stealing a book from a bookshop. Secondly, as things now stand, the innocent man gets no notice at all of what he is supposed to have done. He does not know what he is supposed to have done until the policeman goes into the witness box. He cannot give prior instructions to his solicitors as to what the cross-examination ought to be, because the next moment he is in the witness box himself. Thirdly, there are relatively few cases—certainly as compared with assaults on the police—amounting to only about 600 a year which are divided between the 97 Crown Court judges sitting in 200 to 300 different courts. Fourthly, unlike assaults on the police, this is depriving a man of an existing right which he has.

I have most carefully considered everything which my noble friend Lord Harris of Greenwich said at the Committee stage. He said that you are rather better off before magistrates than before a jury, because if a jury convicts you, you have "had it"; whereas if the justices convict you, you have a right of appeal, and this is a re-hearing. This seems to me to leave the facts of life out of account. I am assuming that the case of a man who is not a homosexual and who has been wrongly convicted gets into all the local papers. The boys at the school where his two sons are being educated are told by their fathers that they must on no account go to this man's house and that they had better be very careful not to become too friendly with his two boys. Three months later, in some distant Crown Court, the man is acquitted; but the fact is not even published in the papers and for years a great part of the local population will say, 'Oh yes, that is the man who was convicted as a homosexual".

The only other point which my noble friend makes is that this was a Working Party recommendation which was accepted by the James Committee, on the footing that there is no reason why this rather minor offence should merit more than three months' imprisonment, that that would put it on a par with women, soliciting—which on the grounds of sex equality is right—and that as a consequence the man would lose his right to trial by jury. It is not, with respect, the same offence. In the first place, as the noble Lord, Lord Beaumont of Whitley, has pointed out, a woman found soliciting on the streets is not prosecuted until she has been warned three times. This is a very sensible arrangement, because it enables her to speak to the welfare and probation officers who will try to persuade her to adopt another mode of life. A man soliciting another man is a wholly different offence. It would be the same offence if you were comparing it with women soliciting women. So far as anybody knows, there is about the same proportion of women with homosexual inclinations as men. Therefore, if it were a case of women soliciting women it would be the same offence, but to say that it is the same offence as women soliciting men is quite unrealistic.

On all these grounds, particularly because it is depriving men who may be entirely innocent of the right to trial by jury which they at present have, I support the Amendment.

7.29 p.m.

Lord HARRIS of GREENWICH

My Lords, when we discussed the matter during the Committee stage, I indicated to the House that the Government would look at the question in the light of what had been said, although I emphasied that I could give no commitment, so far as the future was concerned, that we would change our views. Indeed, we have reconsidered the question of the appropriate mode of trial for this offence, but we have come to the conclusion that the Bill as drafted is right and that this offence should become triable only summarily.

If I may deal with the points raised by my noble and learned friend, Lord Gardiner, who always speaks persuasively, I am bound to tell him that although he made a number of gracious remarks about magistrates—and indeed I recall his period of office as President of the Magistrates' Association—the criticisms he makes of magistrates in relation to this particular type of offence (and, I understand, in connection with the next Amendment as well) are central to the whole function of the magistracy. I sat for a time as a magistrate. Of course I knew the policeman who often gave evidence; of course the policeman was cross-examined; and of course those prosecuting for the police said, "Why should this policeman tell lies about this particular matter? What conceivable reason has he for so doing?" That does not arise just in cases of this sort; it arises across the whole area of the administration of justice in magistrates' courts; and on that particular point I am bound to say that I did not think my noble and learned friend was as persuasive as he is on so many other questions.

The situation at present is that this is a hybrid offence which is punishable on summary conviction by up to six months' imprisonment or a fine of £100 and on conviction on indictment by up to two years' imprisonment and an unlimited fine. The accused may insist on a jury trial if, but only if, the immoral purpose is the commission of a homosexual act. That is so because of an express provision in Section 25 of the Magistrates' Courts Act of 1952 as amended.

As has been made clear, the Bill as drafted makes the offence a purely summary one with no right to jury trial but with very much reduced maximum sentences of three months' imprisonment and a fine of £200. The effect of the Amendment would be to make the offence triable either way and in consequence to increase the maximum penalties to slightly more than the existing penalties. In other words, the accused would be able to claim jury trial but would run the risk of up to two years' imprisonment and an unlimited fine if he did, and would also be at risk of up to six months' imprisonment and a fine of £1,000, and this for an offence in respect of which the noble Lord, Lord Beaumont of Whitley, describing the offenders, said: "They do not do very much harm". If that is the scale of penalties for offenders who do not do very much harm, it seems to me that penalties of that description are slightly out of keeping with the gravity of the offence as described by the mover of this Amendment.

The penalties which I have set out are the penalties for all "either way" offences tried summarily under the Bill and these penalties are very much higher than those proposed in the Bill under the Amendment tabled by the noble Lord, Lord Beaumont of Whitley, for the purely summary offence and, as I have indicated, actually higher than the penalties for the existing hybrid offence. The choice therefore is between putting the offence in the "either way" category with high maximum penalties or summary trial with very much lower penalties. In the view of the Government the high penalties are not justified either when compared with the penalties for the existing offence of soliciting by female prostitutes—a point touched on by the noble and learned Lord, Lord Gardiner—or in the light of present-day attitudes of society towards homosexuality.

An additional point was raised and I am sorry that the noble Lord, Lord Wigoder, is not with us because on the last occasion he raised a question concerning acquittals in contested cases for this particular offence. I have written to him and in view of the fact that he is not here I think it is only right to tell the House what the results of our researches have been. I am sure that they will at least give pleasure to my noble friend Lady Phillips because the situation is this. In 1975, of the 627 people who were tried in the magistrates' court, all but 43 pleaded guilty. Of the 43 pleading not guilty, 33—or 77 per cent.—were acquitted by the magistrate. These are the people who one is always told are much more likely to accept the evidence of the police uncritically. In the Crown Court, of the 40 who were tried, 28 pleaded not guilty of whom 17–61 per cent.—were acquitted. I do not believe that an acquittal rate in the magistrates' court of 77 per cent. supports the contention that magistrates are more likely to believe police evidence than that of the defendant.

Lord GARDINER

My Lords, if my noble friend will allow me I should like to ask one question because I have asked his office but I have not had any reply. It is divided between magistrates' courts and Crown Courts: where in these figures do I find the cases in which the man is wrongly convicted in the magistrates' court and acquitted in the Crown Court?

Lord HARRIS of GREENWICH

My Lords, is my noble and learned friend indicating that he had written to me about this?

Lord GARDINER

No, my Lords; I communicated with the noble Lord's office.

Lord HARRIS of GREENWICH

My Lords, I am much obliged to the noble and learned Lord, but, as he will appreciate, I cannot answer the question.

Perhaps I may sum up in these terms. In proposing that this offence should become triable only summarily with much reduced penalties, the Government are giving effect to the recommendations of two separate bodies. The first is the Working Party to which my noble friend alluded, on vagrancy and street offences, which recommended last year that the maximum custodial penalty should be reduced to three months, bringing it into line with the maximum penalty for soliciting by women prostitutes, which also is a purely summary offence; and, secondly, we have the view of the James Committee that with a substantial reduction in the penalty there is no longer any reason why the offence should continue to be triable on indictment, bearing in mind of course that it will remain open to anyone convicted of the offence in the magistrates' court to appeal to the Crown Court where the proceedings take the form of a complete re-hearing of the case.

In short that is the view of the Government. I think it is right for us to maintain our position that for offences of this sort the range of penalties should be sharply reduced and they should be triable summarily only. The effect of this Amendment is certainly to give the right of jury trial but also to carry with it a scale of penalties which in our view is wholly inconsistent with the type of offence.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I agree with the noble Lord, Lord Harris of Greenwich, about this problem. It is a problem which has given me a lot of reason for thought and it is a problem about which I dare say I have as much experience as anyone in the House; probably that is not very much in the case of any of the noble Lords who have spoken, and certainly my experience is nor very much, although not quite as small as one might expect because over 50 years one has heard and taken part in trials of this kind. Of course I would agree (subject to the criticism I am about to make later on) with the noble and learned Lord, Lord Gardiner, that the consequences to a man of being convicted of this offence are certainly more serious than are the consequences to a woman convicted of soliciting for the purposes of ordinary prostitution. I believe that to be the case and certainly the noble Lord, Lord Wigoder, has asserted it and the noble and learned Lord, Lord Gardiner, has asserted it and I do not want to dispute it.

Then one goes on to think of one or two other factors. If the case had been made out that such a man as is charged with this offence had a better chance of acquittal in front of a jury than in front of magistrates I am not sure that if would not have gone along—again subject to criticisms I shall make later—with those two noble Lords who have supported the Amendment. But in fact the evidence is the other way and the figures cited by the noble Lord, Lord Harris, seem to me to be much more than significant: they are virtually conclusive: 43 pleading not guilty before magistrates; the percentage of those pleading not guilty who were acquitted, 33 out of 43, three-quarters or 77 per cent.; before juries, 28 pleading not guilty, 17 acquitted—only 61 per cent.

The fact is, and I believe it to be true, that there are cases where magistrates are more likely to convict than juries and there are cases where juries are more likely to convict than magistrates. They are not an absolutely identical tribunal in every class of offence but these figures really establish what I have always believed, that the rather sophisticated person who knows the world, who becomes a magistrate, is very much more likely to acquit and disbelieve the police than the jury, and in my experience, which is limited but not altogether negligible, the average random voter—which is what the juryman is—has a great deal more prejudice against those who are charged with this offence than a magistrate has. Therefore, not only has the support for this Amendment not got evidence in its favour, but I believe there are conclusive reasons for believing the ocntrary to be the case. That is the first thing which has to be said about the Amendment.

Next, one must look at it in principle. Before the Act of, I think, 1969, when sexual offences were abolished as between consenting males in private, there was a good case both for severe penalties for this offence and for sending it to a jury at the option of the accused, because it was intrinsic to these offences, or almost every one, that the person soliciting was soliciting the other person to commit with him what was then intrinsically a criminal offence; in other words, he was inciting the commission of a crime. When a female prostitute approaches a man she is doing nothing of the kind. She is inciting the man to do something which may be morally reprehensible but which is in no sense a crime at all; namely, to have sexual intercourse with her.

The position since 1969 has been virtually the same in relation to the male solicitor; he is soliciting an adult male to commit with him in private what, if committed in private, is no longer an offence, in the opinion of Parliament. I do not say that I wholly agree with the policy of Parliament in that, but in fact the position of the male solicitor since 1969, or whatever the exact date of the Act was, has been put on a par by Parliament, quite deliberately as a matter of policy, with the female prostitute soliciting in a public place. Therefore, there can be no reason for differentiating between the two. I must say, speaking from some experience of political life, that when one came to discuss with women's organisations the situation of the female prostitute charged with a solicitation offence it was always a matter of grievance to them that the male prostitute, although subject to higher offences, was in fact treated in a different, and, as they said, a superior way.

I want to deal with one or two of the other arguments which have been put forward in support of this Amendment, because I really think they are fallacious. In the first place, the noble Lord, Lord Beaumont, said that what he called—I forget the exact phrase he used—homo-sexual public opinion was prepared to take more severe penalties in order to get trial by jury. Quite frankly, I have never accepted the view—the noble Baroness, Lady Wootton, will remember that I had this battle with her in relation to motoring offences, when I was Lord Chancellor—that in order to give trial by jury it was legitimate to impose maximum penalties which the offence did not deserve intrinsically. This is intrinsically a bad principle of criminal jurisprudence and nothing that one says can really justify it.

Secondly, one of the reasons why the acquittal rate may be substantially much lower in front of a jury than in front of magistrates is the one I have dealt with; that is, because I sincerely believe that the random voter has more prejudice against the man in the dock in respect of this kind of offence than has the rather more sophisticated type who is a lay or professional magistrate. But the other reason is precisely the one which for some reason the noble and learned Lord, Lord Gardiner, gave for supporting the Amendment; that is, that the accused is prosecuted, and, therefore, cross-examined, by a professional prosecutor and not by an incompetent policeman. It is undoubtedly most extraordinary that people should continue going to trial by jury, facing a much lower rate of acquittal, in order to get their clients cross-examined by a professional prosecutor instead of an incompetent policeman—and policemen, believe me, are incompetent at cross-examination; they are not good cross-examiners, and a lot of people get away for precisely that reason.

There is one other remark I want to make to the noble and learned Lord, Lord Gardiner, and to the noble Lord, Lord Beaumont. They have both said, and I accept, that the consequences to a man of conviction for this offence can be extremely serious. I have never defended homosexual conduct. I think it is a corrupt and corrupting offence. But it ought never to carry social consequences, beyond the consequences of prosecution and conviction, for this particular offence, which is not a particularly corrupt or corrupting example of it. If you want to reduce the social consequences of conviction for male solicitation, the very worst thing you can do is to build it up into a jury trial where the man is given the whole panoply of the law. I quite agree with the noble and learned Lord, Lord Gardiner, on the social consequences pending trial. Of course, they attract those consequences, but that is almost necessarily true, whether the man opts for trial by jury, or whether, as he was positing in that particular case, he is convicted by the magistrates and then opts to appeal. The consequences are the same; the delay approximately identical.

Therefore, although I recognise the sincerity of both noble Lords who have put forward this Amendment, I believe that the Government are right; that is, that the balance of argument, whether you look at it from the point of view of principle or whether you look at it from the point of view of practice or of seriousness or humanity, is wholly the other way.

Lord AIREDALE

My Lords, I should have thought there was all the difference in the world between a person who has elected trial by jury, and, therefore, has not been tried at all, and a person who has been convicted, and having been convicted is entering an appeal and is hoping eventually to be acquitted. I should have thought those two things were about as far apart as any two things possibly could be. What I was intending to say was that I do not think very much of a percentage deduction drawn from a sample of only 43 cases. 1 should have thought that was far too small a sample from which to draw any accurate reliable percentage at all.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, if the noble Lord will forgive me, before he sits down, the boot is on the other foot. The case was put forward without a ha'porth of evidence by the two supporters of the Amendment that magistrates were more likely to convict than juries. The burden of proof is on them to support their assertion.

Viscount BARRINGTON

My Lords, it is a very difficult question. I only want to say that, so far as I am concerned, it seems a question of whether somebody should be allowed to opt for jury trial, at the risk of getting a worse penalty and his name in all the papers, of whether he should be allowed not to. If I were a homosexual, which I am not although you may not believe me, I might have the greatest difficulty, because, unlike the gentleman referred to by the noble and learned Lord, Lord Gardiner, I have often been into public lavatories. I have not been arrested but questioned by a plain clothes detective in a mackintosh for running down a street with a typewriter which I had bought. I was catching a train, and I tried to convince him that I had the receipt in my pocket. I could not find it, of course. I then found out his number and tried to put the boot on the other foot; he admitted that he had no evidence. Of course, the moment I had left him I found the receipt in my pocket. I do not believe that if one goes into statistics of this kind it is really relevant; otherwise one would go on a I night. "Tell me not in mournful numbers"; this has the greatest chance of success.

Is it not a policy of a great many people in this House that people should not be treated as children unless they are children. Then they must be defended. But someone who is fairly or unfairly accused of something in certain cases should have the right to go to a jury. I am inclined to think that this is one of the cases that should not be included in the Schedule. I may be wrong, but I say that entirely on the ground of allowing people a choice to make up their minds whether they have committed an offence which may or may not be serious. I agree with the noble and learned Lord, Lord Hailsham of Saint Marylebone, that very often it is a serious offence. However, I believe that that is the fundamental principle.

Baroness PHILLIPS

My Lords, following the speech of the Minister and of the noble and learned Lord, Lord Hailsham, I shall not attempt to gild the lily. I should like to make a small contribution on a general point. Whatever the offence, it is unlikely that magistrates become any more tired, cynical or dispirited than judges. I hope that I can establish at the beginning of my remarks that that it is not a very good argument to advance. I have heard that advanced several times and it is a totally fallacious argument.

Anyone who has sat in a Crown Court is always amazed by the fact that the jury, who are, presumably, drawn from an unsophisticated or an unlearned source, are expected to sit, sometimes for long periods—on one occasion in my experience they sat on a particular case for 21 days—and are never given the opportunity—I do not know why—to make any notes. They are expected to rely totally on their memories despite the fact that the learned judge takes notes, and when I sit on the bench I take notes. Anyone who imagines that the jury brings in the verdict must be suffering from a delusion. The judge directs them and unless they have an extraordinarily good memory, they are bound to be very heavily influenced by his decision.

I appreciate the feelings of the noble and learned Lord, Lord Gardiner about magistrates' Certainly the cases of this type of which I have had experience in central London—and they are quite frequent—do not appear to be couched in quite the terms that the noble and learned Lord described. There always seems to be more than one occasion when the accused has been followed; two plain-clothes men appear to have followed the individual for quite some time. I deplore the waste of time and skilled manpower. However, cases do not appear to have been brought in the way in which the noble and learned Lord described—just one appearance in a public lavatory and a policeman who gave evidence using his notebook.

Magistrates are our peer group and I am deeply indebted to the Minister for the figures he gave which we shall be able to use and re-use. Perhaps we shall be able to have figures for each of these particular offences which have been described. I believe that this is a minor offence and that the case for publicity is diminished when such a case comes before a magistrates' court. I assure the noble Lord, Lord Beaumont of Whitley, that it is highly unlikely that one will see the same policeman every day on every case. There is quite a good chance that one will not know the policeman nor in any way be guided by his evidence. I heartily support the Government in asking for the rejection of the Amendment.

Lord BEAUMONT of WHITLEY

My Lords, I think that there is at least general agreement about one matter; namely, that the penalties are absurd. We have had an extremely good debate on the merits of this Amendment. I still maintain that, although I am distrustful of pressure groups in principle, because they tend to overstate their case, and although I am much more trustful of them when they are on the defensive rather than when, in certain cases, they are on the attack, this is a question where they are on the defensive. I still hold very strongly to the view that if they think these admittedly absurd penalties are worth keeping, then they are putting a very strong case, taking into account their records and experience, for my Amendment.

I entirely agree with the noble and learned Lord, Lord Hailsham, that it is wrong to have penalties which are too great for such an offence. However, we are merely discussing one imperfection of the law against another. If we left the status quo as it is, we should have one imperfection; if we pass this Amendment we should, as the noble and learned Lord pointed out, have another. There are all sorts of ways of getting round this. The way that I should choose is that in cases of this kind no case should be brought without the evidence of a member of the public that he or she had actually been offended. Such an amendment would cut across the whole matter and would solve many problems. However, that is not before us. The Bill is before us.

I am cheered by the figures that have been given—I am impressed by them. I agree with my noble friend that perhaps the sample is not that enormous and I am not certain that in this case the burden of truth is on this side. Nevertheless, I am impressed by the figures. The Government have made out a reasonable case, although I am not completely convinced. I should be most grateful if the Government would answer the question of the noble and learned Lord, Lord Gardiner, and possibly write to him and to me about it. The noble and learned Lord asked about the figures for acquittals in the Crown Court on appeal from magistrates' courts. With that reservation and the reservation that I may have to raise the matter again at another stage, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.57 p.m.

Lord GIFFORD moved Amendment No. 68B:

Page 41, leave out lines 30 to 38.

The noble Lord said: This Amendment is designed to make the offence of assaulting a police constable in the execution of his duty triable either way instead of being, as in the Bill, triable only by summary trial. A similar Amendment was moved on Committee by the noble and learned Viscount, Lord Dilhorne. He was satisfied with the reply of the noble Lord, Lord Harris of Greenwich, and withdrew the Amendment. I was not.

We are now dealing with a wholly different kind of offence from that dealt with in the previous Amendment. First, it is an offence which the James Committee considered should be triable either way. At paragraph 156 of its report the Committee said: There is a case for abolishing this offence altogether, on the ground that the general assault offences would be adequate to deal with assaults on the police, the fact that the victim was a policeman being an aggravating feature which can properly be taken into account in considering the appropriate sentence. Having rejected that as being properly unacceptable to public opinion, the Committee went on to say: Where the case is contested there is often a straight conflict between the evidence of the defendant and that of the police; if there is such a conflict, it can be said that the prosecution has a special involvement in the case and that therefore it is particularly suitable for resolution by a jury.

It is, of course, the case at present that this offence does not carry with it the right of the defendant to elect for trial by jury. He can go for trial by jury only upon the election of the prosecution. Of course it will be said by my noble friend Lord Harris that to accept this Amendment would increase the burden of the Crown Courts. It would. However, in this Bill we seek to classify in some kind of correct and permanent manner the various offences and the modes of trial which are appropriate for them. We really must go back to first principles on this Amendment and consider the basis on which this classification is to be made. I adopt, and I believe the Government adopt, the principle which was the basis of the James Committee's Report, and it is set out in paragraph 41: For the purpose of determining whether a offence should be triable on indictment the primary consideration must be the seriousness of the offence in the eyes of society.

What of the offence of assaulting a constable in the execution of his duty? Let us first see what the Judiciary say about it. In the Court of Appeal in 1975 there was heard the case of Coleman, and this is what was said by the Court presided over by Lord Justice Lawton: When the police were trying to do their important job of maintaining public order, people who deliberately used violence in order to impede them must expect immediate custodial sentences. There should be no exceptions save where the mitigation was wholly acceptable. There could not be a more trenchant view expressed of the seriousness with which at any rate the Judiciary regard this offence, and I have heard those sentiments echoed by judges and magistrates throughout the country.

One cannot say that this is in any sense a minor offence. That it is not a minor offence is reflected in the penalties actually imposed. In Criminal Statistics for 1975, at page 222, are set out the various terms of imprisonment imposed by magistrates for various offences. For assault on a constable there is a total of 579 immediate prison sentences, of which some 248 were sentences of over three months. If one looks down the column, particularly the over three months column, and at all the other offences which are to remain summary offences after this Bill is passed, there is nothing which comes anywhere near assault on a constable in respect of the numbers of prison sentences imposed. One sees that drunkenness with aggravation has a heavy total of 523 prison sentences, but most of them are very short.

By any criteria of seriousness this is an offence which ought to be triable either way, and one fears that the only criterion which is keeping it a summary offence is the criterion of expediency. At Committee my noble friend Lord Harris gave a reply which smacked to me of woolly, and dangerously woolly, thinking. He said among other things: There is no reason for saying that a jury is a better tribunal for establishing the truth than is a bench of lay magistrates.

Let us remember what this Bill is about. If this sentiment expressed here were correct we need not bother about juries at all but could have every offence triable by magistrates. It is no disrespect to the magistracy to say that if they by and large are a good tribunal, a jury is a better one, and where serious offences are at stake then the better one must be one that at any rate has an election in the defendant. My noble friend backed up his argument by quoting the same table of statistics showing that a greater proportion of persons were acquitted in the magistrates' courts on this offence than at the Crown Court. So it seems they are, but those statistics are of no value in this deliberation because the offences that go to the Crown Court are offences of a very different order. They are offences which the prosecution has chosen to take to the Crown Court, and the prosecution has chosen to take them often because they are offences of seriousness, often because they are offences which the prosecution considers it can prove and on which it has a good case, and often because the offences are of a particular class which are linked with other offences.

On Committee I raised this question of what is going to happen when a person is charged, as is very common, with, one, an offence which is triable either way, and two, the offence of assault on the police, and he elects to go for trial on the offence triable either way. My noble friend Lord Harris wrote to me indicating that inevitably there would have to be two trials, and there was no way in which one could have both offences triable by a jury. Two trials—perhaps that is right; but it is another reason for making this offence triable either way.

I would ask the House to look carefully at this offence, to re-examine the arguments of expense and expediency that will be put forward. No doubt there are other offences which could be made triable summarily. I do not want to anticipate a later Amendment, but perhaps certain offences of the possession of very small quantities of drugs could be made triable summarily only. At Committee I put forward various arguments from my experience as to the injustice done by keeping this offence triable summarily only. I will not repeat those arguments. They are already on the record. However, they are additional arguments which I commend to your Lordships. I beg to move this Amendment.

Lord GARDINER

My Lords, I do not wish to take up the time of the House about this, but I think that the House should know what I should have told it if I had been able to be here at the Committee stags of the Bill, and which it was not told, and that is the view of the Law Society which they have previously communicated to the Home Office. The Law Society, after all, have enormous experience in these fields, and as a whole are sensible people. They said: On this offence we support the recommendation of the James Committee that the present law whereby the prosecution can elect trial on indictment but not the defendant is indefensible "— the House will remember that that was the James Committee's word: indefensible— and that it should be changed so that the defence also has this choice. There are in our opinion several reasons for special treatment of this offence and why it should not at this moment in particular be reduced to a summary offence only.

  1. "(a) The offence is currently under consideration by the Criminal Law Revision Committee and no change should be made until their conclusions are known other than to bring it into line with the general rule on intermediate offences.
  2. "(b) In offences of this kind the complainant, that is, the constable assaulted, is likely to be well known to the local magistrates' bench so that many, perhaps most, cases would in any case have to be brought in or referred to courts outside 1373 the district in which the assault occurred. Though this could be a magistrates' court, we think that taken in conjunction with the other reasons for trial on indictment it is an argument for trial in a Crown Court.
  3. "(c) The James Committee observed that in cases of this kind there is often a straight conflict between the evidence of the defendant and that of the police. If there is such a conflict it can be said that the prosecution has a special involvement in the case and that therefore it is particularly suitable for resolution by a jury. We support this view strongly.
  4. "(d) We think that public opinion probably attaches a special significance to assaults on the police and would support these being the subject of a separate and perhaps more serious offence.
  5. "(e) We also think that the police should be consulted before this offence is in effect demoted, and if they would like the separate offence retained in recognition of the special risks to which they are exposed, we see no reason why this should be denied."
I would ask the Government again to take these views into account. On the last point, which again was not mentioned when the position was considered in Committee, would my noble friend tell us whether I am right in saying that the police superintendents have made the strongest protest to the Home Office about this crime being demoted to a purely summary offence?

8.10 p.m.

Lord HARRIS of GREENWICH

My Lords, I am trying to find out the answer to the question which my noble and learned friend Lord Gardiner just put to me. The Association of Chief Police Officers and the Police Federation, which of course represent both the overwhelming proportion of uniformed ranks and the chief police officers, have expressed themselves in support of the Government's position in this matter. I am bound to tell Lord Gardiner that. We had a quite prolonged debate on this matter in Committee and I then expressed the view, which I repeat, that the Government do not believe it right to make an Amendment on the lines of that proposed, and there is nothing we have seen in the situation since then that has made us in any way change our views.

I will first discuss the scale of the matter and then come to the arguments which have been adduced tonight and on the previous occasion. Let us have no doubt about it that if the Amendment were carried it would, as the James Committee indicated, be likely to result in substantially more of these cases going for trial to the Crown Court on the defendant's election. In 1975 there were 12,000 cases of this offence, of which 1,400 were committed for trial at the Crown Court, presumably for the most part at the wish of the prosecution. This is inevitably a difficult matter, but it is estimated that if the accused is given the right to choose trial by jury, up to twice as many people—that is, an additional 2,000 cases or more —might elect to be tried at the Crown Court.

This is an important factor—I do not regard it as a conclusive one—which must be taken seriously into consideration at a time when there is very substantial pressure on the Crown Courts. But if there were a fundamental argument of principle which points in the opposite direction, then clearly the Committee should accept that argument. I do not believe that any such argument was deployed on the last occasion, nor, with respect, do I accept that one has been deployed tonight.

The question here is whether the defendant should have the right to claim a trial by jury. Underlying this—it has been put with substantial candour by my noble friend Lord Gifford and by Lord Gardiner—is the argument that magistrates, who are daily accustomed to seeing police officers giving evidence before their court, will tend to accept police evidence in assault cases rather than the evidence of the accused. I apologise for repeating it, but I think it only right to return to the point——

Lord HALE

My Lords, would my noble friend permit me to intervene at this point?

Lord HARRIS of GREENWICH

My Lords, if my noble friend will allow me to deal with this issue I will gladly give way to him. The point I made in answer to my noble friend Lord Gordon-Walker on 26th January was that the statistics showed that of the accused who pleaded not guilty in the magistrates' court, 27 per cent. were acquitted, and of those who pleaded not guilty in the Crown Court, 20 per cent. were acquitted. My noble friend has tried to answer that point today, but, with respect to him, I do not believe he has succeeded in discharging the onus of proof which was on him in this matter, as the noble and learned Lord, Lord Hailsham of Saint Marylebone, said it was on the last matter.

Those who claim that people are less likely to get justice from a magistrates' court must not push on one side quite as brusquely as my noble friend did this evening, evidence which appears to show precisely the contrary. At the moment one is marginally more likely to be acquitted in a magistrates' court than would be the position in a Crown Court.

Lord HALE

My Lords, my noble friend is on the very point I was about to make. I agree there is always a fear, remembering that justice must be seen to be done, that in a local court the Judiciary may know, or think they know, a great deal about the parties to the case, and there is a fear, even if it cannot be fully justified, that they may take their knowledge into account. But of course they can take it into account both ways. They may have a very deep distrust of a particular constable; a constable who possibly has been severely assaulted may be an unpopular constable. They may know quite a bit. In a case which depends so much on personal evidence—and, as my noble friend said, a case which the Judiciary insists must be regarded as having potentially very serious factors—there is a case surely for feeling that either side, the individual constable or the individual defendant, may feel that justice is better served by a completely independent court.

Lord HARRIS of GREENWICH

I hope that any court would be an independent court, my Lords. As I have indicated, it appears that the magistrates have been more likely to throw out cases of this sort. I must repeat this point because those who favour the Amendment tend repeatedly to push it on one side. It is vital to bear something else in mind, and that is the view of the James Committee in this matter. The figures of the acquittal rates in contested cases which I gave in answer to Lord Gordon-Walker were not available to the James Committee. It is of course impossible to say what view the James Committee would have taken if they had had that information. I am simply saying that it is not an unimportant factor to remember that they did not have the opportunity to consider that information.

One of the problems which the James Committee faced was that of penalties. It is true that the James Committee recommended that the offence be triable either way. Their recommendation was, however, qualified by the rider: unless the maximum penalties are severely curtailed. They have been, as I said specifically in answer to the noble and learned Viscount, Lord Dilhorne, with the approval of the police organisations. Incidentally, I have attempted to elicit information about the attitude of the Superintendents' Association, but I have not been able to find any information to confirm what my noble and learned friend put to me. I will continue to try to find out, but I suspect that I shall not be able to discover the information before the end of tonight's proceedings.

That is the position which I put to some extent on the last occasion. During the debate we had on that occasion, Lord Gifford raised the question of linked offences. That is the situation where, if the Bill goes through in its present form, in future an assault on the police is charged at the same time as an offence which is to be tried at the Crown Court. My noble friend suggested that in these circumstances the assault charge should also be chargeable on indictment. As I indicated when I wrote to him, this is not a problem peculiar to the offence of an assault on the police; it could apply in many other cases, and I think it would be a very difficult matter to say that we should deal with assault cases on the police in one way and adopt a totally different method in cases affecting some other charge.

The James Committee specifically considered a proposal that a magistrates' court, when committing a person to the Crown Court for trial, should have power to commit him for trial at the same time in respect of any related summary offence. While recognising that such a procedure would avoid the existing difficulties of whether to try the purely summary offence before or after the Crown Court trial, the James Committee pointed to other difficulties which this would create. They said: It is fairly straightforward for the Crown Court, when sentencing a person for one offence, to consider at the same time the sentence for other offences which would usually be related, since this adds little to the work involved. They went on: It is another matter to make provision enabling summary offences to be tried by a judge and jury. It would add significantly to the already heavy burden on juries if they were required to try a string of minor offences, and moreover offences which in other circumstances were not considered sufficiently serious to justify jury trial. The witness statements and documentation would have to be prepared as for an indictable offence, counsel on both sides would have to be briefed in relation to the summary offences and, in the event of an appeal against conviction of a summary offence, the defendant would presumably be entitled to go to the Court of Appeal. These seem to us powerful arguments against making special provision for linked offences—whether in relation to assaults on the police or some other summary offence—and while we would probably all agree that there may be some circumstances where it may be desirable for the two offences to be tried together, the Government's view is that the remedy would be worse than the disease.

I should just like to deal with one other point raised by my noble friend; that is, the question of the penalties imposed by magistrates' courts in dealing with assaults on the police. My noble friend very kindly indicated to me that he was going to raise this question, and he pointed out today that a very high proportion of those who were convicted in magistrates' courts were sentenced to imprisonment and that a high proportion of these received sentences of over three months.

Let me begin by saying that the statement is only true if motoring offences are left out of account because the table on page 222, which I have no doubt that my noble friend has studied, lumps all motoring offences together in a total of 1,730 and this includes a very high proportion of sentences of immediate imprisonment for the principal offence of driving while disqualified. So that is a point on the factual basis of what my noble friend said. It is perfectly understandable and I would accuse him of no error. It is simply the way in which the figures have appeared.

If we leave aside driving while disqualified, in terms of the absolute number of offences the next most numerous groups are assaults on the police, drunkenness with aggravation, drug offences and frequenting by a suspected person with intent to commit an arrestable offence. But, when these offences are repeated to the total number of prosecutions brought for each of the offences I have just named, the differences are far less striking. For assaults on the police the total was 4.8 per cent.—less than 5 per cent.—who received an immediate sentence of imprisonment. For frequenting by a suspected person with intent to commit an arrestable offence, the percentage was significantly higher. It was 7.4 per cent.

When we come to this question about the length of the sentences of imprisonment, it is certainly true that over half the sentences of immediate imprisonment imposed on people convicted of these assaults are for two months or more, but that is also true of social security offences and, indeed, of the offence of possessing an offensive weapon. Hence, that particular feature of the case is not quite so peculiar as my noble friend no doubt imagined. All I should like to do before I sit down is to repeat that, in our view, it is reasonable in all the circumstances to treat this matter as a summary offence and to say that I believe that[...] that is justified given the argument which I put to the House this evening.

Baroness MACLEOD of BORVE

My Lords, before the noble Lord sit[...]s down, I wonder whether he can answer one question. We are all devoted to law and order and to seeing that justice is seen to be done, and I am wondering whether it would not be better in the interests of the police—and, after all, they are a very special category in our society, certainly so far as the courts are concerned—for any case brought by the police or against the police to be heard other than in their own petty sessional division. I should have thought that to be able to go to the Crown Court or, indeed, to another court outside their division would be in their own interest. I wonder whether the noble Lord can say what he thinks about that.

Lord HARRIS of GREENWICH

My Lords, I never like giving answers off the cuff to questions of that sort but, in my view, I would not favour a proposal of that kind. It would seem to me that to treat this particular case in the particular manner which the noble Baroness has suggested would be quite inappropriate. I do not believe that the figures that I have given indicate that there is a degree of prejudice among magistrates against people charged with this offence. I repeat, the evidence that I have given in answer to my noble friend Lord Gordon-Walker indicates that one is less likely to be convicted of this offence in a magistrates' court than in a Crown Court. I do not believe that there is any basis for the fears which, perfectly understandably, have been expressed in this matter. Accordingly, I would not favour a proposal on the lines put forward by the noble Baroness.

Lord GIFFORD

My Lords, one of the problems of moving an Amendment late in the evening and to a sparse House is that it is difficult to know how far what one says is receiving support or otherwise. In answer to one or two of the points made by my noble friend Lord Harris, I believe that there is a fundamental principle here; that is, the principle that an offence which society considers to be a serious offence should carry with it the right to trial by jury. Something was said about the onus of proof. I am not sure how far it is useful to be to-ing and fro-ing the statistics of convictions and acquittals in the Crown Court and the magistrates' courts. I prefer the evidence of my experience and I believe that, of these very many people who plead not guilty and are convicted in the magistrates' courts—they number some 1,000 to 1,200—a number will have been wrongly convicted and a number, had they had the right to trial by jury, would have exercised it and would, with the more thorough investigation that can take place before a jury, have been rightly acquitted.

So far as the criminal statistics are concerned, we can all bandy figures backwards and forwards, but the fact remains that more people are sentenced to terms of imprisonment—usually long ones—for this offence than for any other offence that is to remain summary. This is not an Amendment which, because of the importance of the issue involved and the numbers of people concerned, that I am prepared to withdraw. I shall take the sound of the House and see what support I get.

On Question, Amendment negatived.

8.28 p.m.

LORD HARRIS of GREENWICH moved Amendment No 69:

Page 43, line, at end insert— ("HEALTH AND SAFETY AT WORK ETC ACT 1974 (c. 37)

20. Offences under section 33(5) (continuing contravention of improvement notice, prohibition notice or court order). Section 33(5). For the words from "liable" to "£50" substitute "liable on summary conviction to a fine not exceeding £100". £50 for each day on which the contravention continues. £100 for each day on which the contravention continues.")

The noble Lord said: My Lords, the Amendment is largely self-explanatory. It increases from £50 to £100 the maximum daily fine which may be imposed for a continuing offence against regulations made under the Health and Safety at Work etc. Act 1974. I beg to move.

On Question, Amendment agreed to.

Lord MORRIS of BORTH-Y-GEST moved Amendment No. 70: Page 44, leave out line 22.

The noble and learned Lord said: My Lords, this Amendment relates to the offence of bigamy. As your Lordships will recall, the offence of bigamy has always been one triable only on indictment. Until very recently, the offence was one which was only triable in the court which we used to call the assize court. In recent years, it has been possible for this offence to be tried in the circuit court.

The purpose of the Amendment is to eliminate change in this respect and to leave the position that bigamy should be an offence triable only on indictment. I moved an Amendment in the same terms on 10th February and, when I had given the reasons in support of the Amendment, the noble Lord, Lord Donald-son, said in his reply that it was not a case of crucial importance and suggested that if I were content not to press the Amendment his noble friend could think about the matter again. The noble and learned Lord, Lord Hailsham of Saint Marylebone, then made a speech in support of the Amendment, and a speech also in support of the Amendment was made by the noble and learned Viscount, Lord Dilhorne. I began to make a brief reply and the noble Lord, Lord Donaldson, said: May I interrupt the noble and learned Lord? I have promised reflection."—[Official Report, 10/2/77; col. 1329.] I acknowledged that and asked leave to withdraw the Amendment.

The reasons why I advance the Amendment can be stated with brevity. I am sure that it will be agreed that the offence of bigamy is one that may vary very greatly in its gravity. There could be some offences of bigamy which approximate in gravity to the offence of rape. In many cases of bigamy difficult questions of law may be involved. To allow the present position to remain rather than to make this change would I think have virtually no effect upon the purpose which we all wish to advance; namely, the purpose of relieving the Crown Court of work to the greatest extent possible.

I should like to remind your Lordships that some of us who have taken some part in these debates have favoured the main parts of the Bill which put into effect the Report of the James Committee, though we have demurred in regard to one or two matters where we have thought that points of principle are involved. For example, there was the provision which would have withdrawn the right to trial by jury in cases of theft if the amount involved was below a certain amount. That was an example of a question of principle that was involved.

We now have figures showing the number of cases of bigamy that come before the court, and it is remarkable to see how in recent years that number has greatly diminished. The James Report told us that in 1959 there were 89 cases. I regarded that as a surprisingly small figure. The James Report further told us that by the year 1974, 27 persons had been sent for trial. Again that struck me as being a very surprisingly low figure, and we were told in the James Report that of the 27, seven persons received sentences of immediate imprisonment and eight received suspended sentences.

The noble Lord, Lord Donaldson of Kingsbridge, was able to give us further information, and he gave us the figure for the year 1975. Again we note the remarkable diminution in the number: 18 cases in the year 1975. He told us that of that number, seven only received sentences of immediate imprisonment and in six cases there were suspended sentences. I should like to submit to your Lordships what these figures show. In the first place they show that if these cases were to be dealt with by magistrates, and only by magistrates, magistrates would in the nature of things not be in a position to acquire or to possess any accumulation of experience as to the appropriate way to deal with these cases. A result of that would inevitably be that it would be an embarrassment for magistrates to have to decide as to the appropriate course to follow.

The noble and learned Lord, Lord Hailsham of Saint Marylebone, in his speech on the former occasion pointed out with great force, if I may respectfully say so, that one of the main problems in cases such as bigamy is to decide, once guilt is established or where guilt is acknowledged, what is the appropriate course to follow. The noble and learned Lord said that if these cases are to be dealt with only in magistrates' courts there might well be peril that magistrates, lacking the experience which others might possess, might on occasion pass sentences that were too severe. It may be indeed that magistrates would not wish to have the additional burden of trying these cases, very, very few in number as they will be.

It was also said on the previous occasion that the offence of bigamy is probably not today regarded by the public as being as serious as the public formerly regarded it. That is probably so. I think also that it is unfortunate that it is so. But if this offence is for the future to be capable of being summarily dealt with, though of course only within the powers that the magistrates would possess on considering a particular case, then as an offence it would be downgraded and it would be made to the public to appear that the offence lacks the gravity that it surely possesses. So I submit that to make this change will not really advance the purpose that we all applaud, and in itself this change would be contrary to the fitness of things. I beg to move.

The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)

My Lords, this Amendment was fully discussed in Committee, and on that occasion, as indeed on this, it was argued that the offence of bigamy is never suitable for trial by magistrates because the legal issues are likely to be too complex. As the noble and learned Lord, Lord Morris of Borth-y-Gest, has pointed out, the Government promised reflection on this. The Government have reflected, but remain of the view that while some cases will present complex issues many, per haps most, do not. Equally the Government recognise, as the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, that magistrates may rarely have a case and that therefore it may be that they could face difficulties on sentencing. But that may well apply to an individual Crown Court judge.

As the noble and learned Lord, Lord Morris of Borth-y-Gest, has just reminded us, there were in 1975 only 18 cases, and there are many hundreds of judges who may sit in the Crown Court, and for every one judge who has to pass sentence in such a case there may be 40 who do not encounter such a case. Where the magistrates are in doubt they may commit for trial at any time up to the conclusion of the case. It therefore seems to us that the magistrates should not be obliged in every case to send the case to the Crown Court, and as was pointed out in Committee the plea in bigamy cases is usually one of guilty. So the Government have concluded, after due consideration of the views which were expressed at Committee, that they should prefer the recommendation of the James Committee that bigamy should be triable either way, and I would urge the noble and learned Lord not to press the Amendment.

Lord HAILSHAM of SAINT MARY LEBONE

My Lords, I am very disappointed indeed in that reply. I do not want to go into the matter of whether the questions of law are sufficiently frequent or sufficiently difficult to take the case, on a contested plea, to the Crown Court. I think the argument there is fairly evenly balanced, though on balance I would have agreed with my noble and learned friend on the Cross-Benches. But where I think the Government have not given due consideration to this is on the question of sentence. I think there is a genuine danger of aberrant and over-severe sentences by inexperienced benches of magistrates. I simply do not accept the Government's reply that some Crown Court judges—who, after all, can be appointed only after ten or more years' experience at the Bar—are so incompetent that they cannot approach the matter with a real professionalism which magistrates cannot ordinarily show. For those reasons, if the noble and learned Lord on the Cross-Benches presses this Amendment, I shall support him.

Viscount DILHORNE

My Lords, for once I entirely agree with what the noble and learned Lord, Lord Hailsham of Saint Marylebone, has said. I do not assume from the brevity of the Government's reply that inadequate consideration has been given to this particular proposal, but I must say that the reasons advanced for rejecting what my noble and learned friend has so persuasively urged seem to me to be wholly inadequate. It cannot be maintained that to let bigamy cases be dealt with as they are now will appreciably add to the burden on the Crown Courts. I do not want to repeat the arguments, but I shall have no hesitation in joining my noble and learned friend in the Lobby should he seek to divide the House on this point.

Lord AIREDALE

My Lords, what is the Government's real object in resisting this Amendment? Is it really in order seriously to relieve the burden upon the Crown Courts? Because we are dealing with an infinitesimal number of cases, and it is not going to have any noticeable effect upon the work in the Crown Courts at all.

Lord McCLUSKEY

My Lords, with the leave of the House perhaps I may answer that question and the other points that have been raised. First, it cannot be argued, I have not argued and I do not argue, that the Government defend their

8.52 p.m.

Lord MORRIS of BORTH-Y-GEST moved Amendment No. 71:

Page 45, line 23, leave out paragraph 19.

position on the basis of the burden on the courts. The Government rest on the recommendation of the James Committee and upon the other reasons which I gave; namely, that the great majority of cases, certainly, and it appears most of the cases, are unlikely to raise difficult questions of a kind with which the magistrates cannot properly deal. I certainly do not suggest, and I hope no one will attribute to me, the words which the noble and learned Lord, Lord Hailsham, used. I do not suggest that the judges are incompetent, or "so incompetent", at all. What I suggested, and what I think the figures establish, is that very few Crown Court judges can have any experience of sentencing in relation to bigamy.

Lord HAILSHAM of SAINT MARY-LEBONE

I find that an astonishing suggestion having regard to their previous experience at the Bar.

8.43 p.m.

On Question, Whether the said Amendment (No. 70) shall be agreed to?

Their Lordships divided: Contents, 25; Not-Contents, 33.

CONTENTS
Airedale, L. Hornsby-Smith, B. Rankeillour, L.
Avebury, L. Long, V. St. Just, L.
Barrington, V. Lyell, L. Sandys, L.
Beaumont of Whitley, L. Macleod of Borve, B. Seear, B.
de Clifford, L. Morris, L. Strathclyde, L.
Dilhorne, V. [Teller.] Morris of Borth-y-Gest, L. [Teller.] Trefgarne, L.
Faithfull, B. Ward of North Tyneside, B.
Falkland, V. Mottistone, L. Young, B.
Hailsham of Saint Marylebone, L. Northchurch, B.
NOT-CONTENTS
Blyton, L. Goronwy-Roberts, L. Pannell, L.
Boston of Faversham, L. Hale, L. Parry, L.
Brimelow, L. Harris of Greenwich, L. Peart, L. (L. Privy Seal.)
Brockway, L. Henderson, L. Phillips, B.
Champion, L. Janner, L. Segal, L.
Collison, L. Kilbracken, L. Stedman, B. [Teller.]
Davies of Penrhys, L. Kirkhill, L. Stone, L.
Donaldson of Kingsbridge, L. Lee of Newton, L. Strabolgi, L. [Teller.]
Elwyn-Jones, L. (L. Chancellor.) McCluskey, L. Taylor of Mansfield, L.
Gifford, L. Northfield, L. Wallace of Coslany, L.
Gordon-Walker, L. Oram, L. Wells-Pestell, L.

Resolved in the negative, and Amendment disagreed to accordingly.

The noble and learned Lord said: My Lords, this relates to the offence of complicity in suicide. I moved an Amendment in Committee to the effect that the law should remain as it is. It was said that consideration would be given to this matter. I have reason to think that consideration has been given to it, with the result that this Amendment is going to be favourably viewed. If that is so, then your Lordships will be spared hearing me utter anything further. I beg to move.

Lord McCLUSKEY

My Lords, I can confirm that the Government have given further thought to this matter in the light of the views expressed in Committee. Although the James Committee evidently thought that this offence is not so serious as to warrant trial at the Crown Court in every case, they did not argue the point in any detail. In view of the very small number of cases involved, the Government are prepared to recommend that the House accept this Amendment. I should add that it will require a matching Amendment to remove the offence from Schedule 3.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I congratulate the Government on having, for once, changed their mind. I am quite sure that it is a change in the right direction but I must say, frankly, that I do not regard the carrying on of these debates at this hour of the night, with such a thin House, as at all a good way of improving our criminal law. In the light of the last Division, I am confirmed in the protest I made to begin with. It is sheer incompetence on the part of the Government that they have to do this.

On Question, Amendment agreed to.

8.54 p.m.

Viscount DILHORNEmoved Amendment No. 72:

Page 45, line 36, leave out sub-paragraph (a).

The noble and learned Viscount said: My Lords, I am sorry to move this Amendment at this late hour. I think it is an important Amendment—perhaps more important than the last two Amendments that the House has considered. I share the views of the noble and learned Lord, Lord Hailsham of Saint Marylebone, about the undesirability of the House considering this matter on the Report stage of this important Bill in such a thin House. I am not in the least satisfied that there is such urgency about the passage of this measure through the House that this belated procedure is in the least degree necessary.

I moved a similar Amendment to this in Committee and I make no apology for moving it again. It is an Amendment to remove the provision making burglary in a dwelling, where entry was obtained by force or deception or by the use of any tool—and mark these words!—or where any person in the dwelling was subjected to violence or the threat of violence, triable summarily. The Criminal Law Revision Committee, which was responsible for most of the recommendations which were enacted in the Theft Act 1968, recommended against making this offence triable summarily. If your Lord ships care to look at it, you will see that in paragraph 184 of their report they said that cases which came within this category make up one of the two most serious categories of burglary, or at least: those in respect of which the objection to summary trial is strongest. That was a very responsible committee. It reported in 1966. I do not know how many cases there were of burglary in 1966 which came within that category. I suspect that there are a great many more now.

In Committee, the noble Lord, Lord Donaldson, who was replying to the debate, said that there were 9,249 cases of burglary in dwellings where entry was made by force or deception. He did not state, according to Hansard—and I do not recollect that he did so—what year he was speaking about; but he went on to say he did not know how many of those cases came within the category now under consideration. We were not given any information then—and I do not suppose it is available now—as to the number of cases where burglary was effected in a dwellinghouse where violence was used or threatened towards persons in the dwellinghouse. It would be interesting to know how many cases there were of that category.

I accept that in these days the number of those cases may be considerable. I recognise, too, that the effect of the acceptance of this Amendment will mean that the Crown Courts are not relieved of the burden to the extent that this Bill proposes; but I believe that, having regard to the gravity of offences within this category and their prevalence, this is not the time when it should be made triable summarily. This is not the time to denigrate the character of the offence and make it look less serious than it is. I need not dilate upon the distress that this crime causes. The noble Baroness, Lady Macleod of Borve, said that in serious cases it was the practice of her court to commit straight away. If that is the usual practice throughout the country, and the practice remains unchanged, I recognise that the non-acceptance of this Amendment will have little effect. But I fear that if the Bill is passed in its present form it will mean that many of these most serious cases of burglary will be dealt with summarily; and I do not think that is right.

My Lords, in Committee I said that I understood it to be the case that the Court of Appeal (Criminal Division) had been urging Crown Courts to pass substantial custodial sentences for this offence even on a first offender, and that 18 months had been suggested as a maximum sentence. No observation was made in reply with regard to that, and I take it to be the case that that has been the view urged by the Court of Appeal (Criminal Division). Now, as a result of what happened last week, that sentence can be passed on those who commit offences in this category and who are under 21. I suspect—and it will be interesting to know if the Government can confirm—that a great number of these very serious offences, serious in the consequences on the people affected, are committed by persons under 21.

I think I have the support of the Court of Appeal (Criminal Division) as well as the view of the Criminal Law Revision Committee that offences in this particular category are extremely serious. As I say, in my view their prevalence is such that they should not be downgraded at this time. I am not going to assert that magistrates are too ready to assume jurisdiction, because I do not think that that is likely to be so when they know the full circumstances of a case. But I have known of cases where, at the instance of the police, magistrates have exercised jurisdiction in cases which clearly should have gone for trial.

I remember one case which occurred when I was Lord Chancellor. A bench of magistrates were dealing with a case summarily which shocked public opinion throughout the country. There was a considerable fuss about it which led to inquiry and a lot of criticism of the magistrates. What emerged upon inquiry was that it was at the instance of the police that the case was dealt with summarily by the magistrates, that the bench had not been fully informed as to the circumstances, and one of the circumstances which was relevant to the decision to deal with the case summarily was that at the time when the case would have been heard, if committed for trial, some of the police witnesses would have been on holiday and would have had to be recalled.

I do not wish to blame the police; there may be cases where, owing to the pressure on police time, there is a great argument for dealing with a case speedily and disposing of it quickly in the magistrates' court rather than incurring the trouble of attending at the Crown Court, possibly in a few months' time, and the taking up of police time on that.

I am not for one moment suggesting that magistrates would too readily assume jurisdiction; but I fear that if this Bill is carried in its present form, one may well see the police asking for cases to be dealt with summarily. If they do that, it will require a strong bench to say that that should not happen. We have had one Division tonight, my Lords. I feel strongly about this Amendment. The reason put forward by the James Committee was that the present law led to an anomaly. They pointed out that a person breaking a window to gain entry would be triable only on indictment, while a masked intruder entering through an open door would not. I do not think it is ever difficult to find instances where anomalies might arise, however unlikely, but the existence of such an anomaly does not seem to me to have produced any cogent reason whatsoever for making burglaries where violence to a person in a dwelling was used or threatened triable summarily.

If those cases were excluded and made not triable summarily, then, in a spirit of compromise I should be willing to accept the Bill with the extraction of that part from the proposal in the Bill; that is—to make it quite clear—that if cases where violence was used or threatened to persons in a dwelling remained triable only on indictment and were not triable summarily, I should be prepared, only because it is perhaps a late hour, to agree to the other part of the Bill remaining unamended. I say that in a spirit of compromise. If the noble and learned Lord who is going to reply is not in a position to give an answer to that tonight, then that might be a reason which would justify my putting down this Amendment, or some similar Amendment, on Third Reading. Having remained here until this late hour, I hope that it will be possible for the Government to accept that suggestion, in which case I will withdraw the Amendment and seek, with the aid of the Government, to put down an Amendment to give effect to it on Third Reading.

I put that forward as a reasonable compromise. I do not know the number of cases which would be involved, and I suspect the Government do not either, where burglary has involved the use of violence or threat of violence in the past year to persons in the dwelling. I beg to move.

9.6 p.m.

Lord McCLUSKEY

My Lords, when a similar Amendment was moved in Committee, the Government undertook to reconsider the appropriateness of making this offence triable either way in the light of the views which had been expressed. On that occasion, the noble and learned Viscount, Lord Dilhorne, said it would not be desirable to allow magistrates to try these burglary offences at a time when they were becoming more prevalent. He has repeated that view today. He also added then, as he did today, that the Court of Appeal had been urging the Crown Court to pass substantial custodial sentences for them, even on a first offender, and I am not going to challenge that way of putting it.

The Government have given very careful thought to what was said on that occasion; but, despite the noble and learned Viscount's argument, we still favour the James Committee recommendations. My noble friend Lord Donaldson of Kingsbridge referred in Committee to two very powerful arguments which weighed heavily with the James Committee and to which the Government also attach great importance. I should like briefly to remind your Lordships of these. The first is the one to which the noble and learned Viscount referred: serious anomalies have arisen from the subdivision by the Theft Act 1968 of the offence of burglary in a dwelling. It is indeed anomalous that a person who enters an unoccupied house by breaking a window to gain entry must be tried at the Crown Court, while a masked intruder who walks in through an unlocked front door can be tried summarily with his consent.

Secondly—and I think this must be set against what the noble and learned Viscount urged upon your Lordships—there was a wide measure of agreement among those who gave evidence to the James Committee that all burglary should be triable summarily with the consent of the accused. As well as the Magistrates' Association, the Justices' Clerks' Society and the London Magistrates' Clerks' Association, they included also the Criminal Bar Association and the Law Society. Those are not opinions lightly to be tossed aside.

Viscount DILHORNE

My Lords, were there any opinions from judges?

Lord McCLUSKEY

I cannot quote the opinions of judges, my Lords.

Viscount DILHORNE

My Lords, have they been consulted?

Lord McCLUSKEY

My Lords, the Lord Chief Justice was asked to comment upon the noble and learned Lord's remarks about what the judges urged, and he confirmed what the noble and learned Lord said.

Viscount DILHORNE

My Lords, I am sorry to interrupt the noble Lord again, but could he say whether there is any judicial opinion which supports the proposal that they should be triable summarily?

Lord McCLUSKEY

My Lords, I am not able to say that to this House. The Government are not, however, seeking to devalue the seriousness of this offence or to suggest that it should not, in appropriate cases, be dealt with severely. Let it be understood what we are saying. Like many offences which are already triable either way, the offences in this category vary very considerably in gravity and there are some cases which would be suitable for summary trial. In effect, the noble and learned Viscount is urging the House to say that there are no cases that are suitable for summary trial. We do not believe that the Government's view will result in very serious instances being tried summarily because we think the magistrates will make sure of that. Indeed, the noble Baroness, Baroness Macleod of Borve, observed during the debate in Committee (column 1333) that: Magistrates do not even attempt to hear a case if serious damage has been done to property or people."—[Official Report, 10/2/77.] I am surprised, to put it no higher, to hear the noble and learned Viscount suggest that the police sometimes opt for the smaller penalty in cases where a higher penalty ought to be provided.

It is difficult to be precise about the numbers of people prosecuted for the particular kind of burglary covered by the Amendment, because separate figures are not available from the Criminal Statistics. My noble friend Lord Donaldson of Kingsbridge referred in Committee to the fact that in 1975 some 9,749 people in all were committed for trial for burglary in a dwelling and, in reply to a question from the noble Lord, Lord Wigoder (column 1333), he undertook to try to find out how many of these cases were contested. I understand that the number of people who were actually dealt with in 1975 in the Crown Court (as opposed to being committed for trial in that year) for burglary in a dwelling was 8,648 of which 812 (9 per cent.) pleaded not guilty. Of these 46 per cent. were acquitted.

Baroness MACLEOD of BORVE

My Lords, can the noble and learned Lord possibly tell us how many of that number were juveniles?

Lord McCLUSKEY

I am sorry, my Lords. I was going to come to that subject because the noble and learned Viscount asked a question about persons under 21, but I cannot give the incidence.

Baroness HORNSBY-SMITH

My Lords, before the noble and learned Lord leaves that point, can he tell us, in view of the increase in attacks on the person, how many of those burglaries were accompanied by attacks on the person of unfortunate victims inside their property?

Lord McCLUSKEY

My Lords, I have not been asked before for those details and I do not have them. I am not sure whether they are available, but certainly they are not available through me tonight, and I am sorry for that.

I will come to the matter of violence in a moment or two, but, to take the magistrates' courts, the total there was about 15,000, of which 887 (6 per cent.) pleaded not guilty and 65 per cent. were acquitted. As has been said, however, we think it likely that the people prosecuted for the offence to which the Amendment relates will be a significant proportion of those dealt with by the Crown Court for burglary in a dwelling and, therefore, to make the offence triable either way, as the Bill proposes, will have an impact on the distribution of business.

I said I would say something about cases involving violence, and the noble and learned Viscount, Lord Dilhorne, specifically mentioned cases where persons in the dwelling-house were threatened with violence or where violence was used. If that is to be the consideration which weighs with noble Lords then it could be considered, although I cannot give any commitment on that. No doubt, as the noble and learned Viscount has said, it would be possible to draft the Bill SO as to except specifically those cases but, as he would surely recognise, that would create some complication, since in[...] would involve the creation of yet another subdivision of the burglary offence. So looking at the Amendment as it stands, and having considered all the arguments, the Government remain of the view that there are good grounds for upholding the James Committee's recommendation that the offence be made triable either way. I hope that in those circumstances the noble and learned Viscount, Lord Dilhorne, will feel able to withdraw his Amendment.

Viscount DILHORNE

My Lords, after that reply I do not feel able to withdraw my Amendment. So far as the main part of it is concerned, we have had a discussion of that and the noble and learned Lord has really repeated the speech of the noble Lord, Lord Donaldson, in Committee. But if he could be a little more forthcoming about the violence proposals, then I should feel disposed to take a different course. It is not creating a third category, or another category, of the offence of burglary. If you take the course which I have suggested the actual offences will remain the same. We are not at all amending here the offence of burglary. The noble and learned Lord seems to be under a misapprehension with regard to that. What we should be doing is saying that offences of burglary in a dwelling-house, where violence is used to a person or threatened to a person, would not be triable summarily.

If the noble and learned Lord says that he is disposed to recommend to his colleagues acceptance of that proposal, which I think will not be unduly difficult to draft, then it will be possible to leave this matter now and come back to that proposal on Third Reading, because I think that that goes to the heart of it. I do not myself think it can be right to say that where burglary involves violence, or the threat of violence, it should ever be triable summarily. Could not the noble and learned Lord go a little further than he did in his speech?

Lord McCLUSKEY

My Lords, with the leave of the House, may I answer on just two points? First, what I intended to say (and I hope I did not say it incorrectly) was that the proposal of the noble and learned Viscount, in relation to offences where violence or the threat of violence was involved, would necessarily mean the creation of a fresh sub-division of the burglary offence, and courts and others would have to distinguish between these different categories of the burglary offence. Secondly, I cannot go so far as to recommend for acceptance the proposal which the noble and learned Viscount has produced today. As I understand it, it was not produced before today and all I can do is to repeat what I have

already said, that the Government will consider the matter. But I cannot give any commitment on it.

Baroness HORNSBY-SMITH

My Lords, may I put one lay voice in here. I do not pretend to be a lawyer. In my youth, very few burglars applied violence to the person, but over the years we have seen more and more violence applied. I would beg the noble and learned Lord to appreciate how many people, living in isolated circumstances or alone, consider the circumstances quite different if somebody breaks a window and filches their belongings—although it is sad; it is heart-breaking—from where violence is applied. Where old ladies are tied up or coshed on the head, they expect the Government—even if that means an extra piece of legislation—to define the slick-handed burglar as quite different from one who is prepared to wield an iron bar in attacking an old lady, and who ties her up so that she may starve or die before somebody finds her. They regard very strongly indeed, and feel desperately anxious about treating it lightly, this new trend in burglary which brings in violence. So I hope that the noble and learned Lord and the Government will feel able to consider the demarcation line which the noble and learned Viscount, Lord Dilhorne, put forward. We should think again, even if it means an alteration to the general legislation on burglary, because burglary with violence must be regarded as a new and unhappy classification which is growing.

9.19 p.m.

On Question, Whether the said Amendment (No. 72) shall be agreed to?

Their Lordships divided: Contents, 25; Not-Contents, 27.

CONTENTS
Airedale, L. Hailsham of Saint Marylebone, L. Northchurch, B.
Avebury, L. Hale, L. Rankeillour, L.
Barrington, V. Hornsby-Smith, B. [Teller.] St. Just, L.
Beaumont of Whitley, L. Long, V. Sandys, L.
Campbell of Croy, L. Lyell, L. Seear, B.
de Clifford, L. Macleod of Borve, B. Trefgarne, L.
Dilhorne, V. [Teller.] Morris, L. Ward of North Tyneside, B.
Faithfull, B. Morris of Borth-y-Gest, L. Young, B.
Falkland, V.
NOT-CONTENTS
Boston of Faversham, L. Harris of Greenwich, L. Peart, L. (L. Privy Seal.]
Brimelow, L. Janner, L. Phillips, B.
Brockway, L. Kagan, L. Pitt of Hampstead, L.
Champion, L. Kilbracken, L. Segal, L.
Davies of Penrhys, L. Kirkhill, L. Stedman, B. [Teller.]
Donaldson of Kingsbridge, L. McCluskey, L. Strabolgi, L.
Elwyn-Jones, L. (L. Chancellor.) Northfield, L. Wallace of Coslany, L.
Gifford, L. Oram, L. Wells-Pestell, L.
Goronwy-Roberts, L. Parry, L. Winterbottom, L. [Teller.]

On Question, Motion agreed to.

9.26 p.m.

Viscount DILHORNE moved Amendment No. 73: Page 45, line 42, leave out sub-paragraph (b).

The noble and learned Viscount said: My Lords, I move this Amendment with some degree of confidence. On the last Marshalled List of Amendments I had this Amendment down and I saw to my astonishment that an Amendment to the same effect had been tabled by the noble Lord, Lord Harris of Greenwich, as a separate Amendment and it took precedence over mine. I could not understand that, except on the basis that he was unprepared to join with me in moving this particular Amendment, but now that he has added his name to mine on this Amendment I move it with the utmost confidence and without any fear that it will lead to a Division. I beg to move.

The CHAIRMAN of COMMITTEES (Lord Aberdare)

Amendment proposed, page 45, line 42, leave out sub-paragraph (b)—is that the Amendment which the noble and learned Viscount is moving?

Viscount DILHORNE

My Lords, I am so sorry; I have been speaking to the wrong one.

Lord HARRIS of GREENWICH

My Lords, I am relieved that the noble and learned Viscount has been so candid in saying that. For an alarming moment my colleagues and I assumed that all our papers were in even more undistinguished disorder than is normally the case.

Viscount DILHORNE

My Lords, mine were in a state of disorder and I apologise to the House. The Amendment I am moving is No. 73: Page 45, line 42, leave out sub-paragraph (b), and I can move it quite shortly. This is the proposal to make the offence of handling stolen goods from an offence not committed in the United Kingdom triable summarily. I have myself not known of any charge of that character being brought. It is an offence which is defined in the Theft Act 1968, and, as my noble and learned friend Lord Edmund-Davies pointed out in the course of the debate in Committee, it was not very enthusiastically recommended by the James Committee that this should be triable summarily. He cited this passage from their Report—paragraph 132: We assume that the Committee thought that it should not be triable summarily because of the difficult questions of law that might arise. We accept that for this reason the offence should usually be tried on indictment, but several witnesses have suggested that it should be triable summarily and we do not think that it is necessary to exclude the possibility of summary trial altogether. It can hardly be regarded as an enthusiastic recommendation for summary trial for this offence. I cannot believe that there are many offences of this character tried by the courts and that it would add appreciably to the burden of the Crown Courts if they were left triable on indictment.

Under the Theft Act in every case where this charge is proffered it must be proved that the stealing amounted to an offence "where and at the time when the goods were stolen ". If I understand it correctly, that must mean that it must be an offence against the law of the land where the offence was committed. The Act itself does not say what the offence must be, but I assume it must be an offence equivalent to our offence of theft; the section of the Theft Act does not say so. However that may be, it seems to me that in almost every case where this charge is brought proof of foreign law is necessary to establish guilt. Where you get questions of proof of foreign law, then indeed questions of considerable difficulty may arise in the magistrates' courts. I think it would be much better to leave it where it is for the few offences which come within this field. I do not propose to take up any more time in outlining this. There being so very few offences involved—perhaps the noble Lord will be able to give us some figures—I hope on this occasion he might be able to accept this proposal. I beg to move.

Lord McCLUSKEY

My Lords, the noble and learned Lord, Lord Morris of Borth-y-Gest, and the noble and learned Viscount, Lord Dilhorne, moved a similar Amendment in Committee, though it was not discussed in detail. I will not repeat the arguments which my noble friend, Lord Donaldson of Kingsbridge, put up for the previous Amendment and which I have mentioned again, some of which apply to this Amendment as well. In recommending that these offences should be triable either way the James Committee realised that the offences should usually be tried on indictment but they did not wish to exclude the possibility of summary trial altogether. I should have thought that one can properly have confidence in the magistrates. They have the power under the provisions of this Bill to send a case for trial to the Crown Court at any time up until the end of the prosecution case, and one would have thought that if in fact there were cases of difficulty that would be their fate. But one should not exclude the possibility of summary trial altogether because there must be at least some cases, perhaps many cases, where there would be no difficulty in law at all.

As there was no indication in Committee of widespread or vigorous opposition to their recommendations—even the noble Lord, Lord Edmund-Davies, who was the only noble Lord to speak specifically to this Amendment, said he "could not pretend to be very excited about it"—the Government do not consider in these circumstances that grounds have been made out for amending the Bill in the way proposed. Accordingly, the Government are inviting the House to support the James Committee in this matter. In these circumstances, perhaps the noble Viscount, Lord Dilhorne, would consider not pressing this Amendment.

Lord HAILSHAM of SAINT MARY- LEBONE

My Lords, I am starting to feel that the noble Lord is beginning to treat this House with less than the consideration to which it is entitled. He says that he thinks that there are a good many cases, or might be many cases, in which magistrates would be content to deal with this rather unusual offence themselves. How many? How many cases altogether have taken place in the last 12 months? The noble and learned Viscount on the Cross-Benches asked the question: he has not been told the answer.

The trouble is that what the Government have done throughout is to have the debate at a highly inconvenient time, to Whip their own supporters and not to take the real feeling of the House. I warn the Government that they are building a great deal of trouble for themselves on Third Reading by this attitude. This is the third time I have had to complain of Lord McCluskey's approach to the very reasonable Amendments moved from the Cross-Benches. I must tell him frankly that we on this Bench are profoundly dissatisfied with the way in which noble and learned Lords have been treated. If the Government go on like this, we shall see to it that they will learn better on Third Reading.

Lord McCLUSKEY

My Lords, with the leave of the House perhaps I might reply to what has been said. I regard what the noble and learned Lord has said as being absolutely and totally unfair to me. He constantly reminds noble Lords who speak from this Bench that they speak for the Government and then singles me out by name. To put the matter in that way is totally and utterly unfair. Secondly, he is quite wrong in saying—I do not know what justification he has for such an assertion—that the Government have a Whip on this matter. The Government have no Whip on this matter.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I said that simply because the noble and learned Lord said that the Government did not propose to accept the Amendment of the noble and learned Viscount, Lord Dilhorne. If that does not mean that there is a Government Whip on these proceedings, all I can say is that ordinary Parliamentary language has no meaning at all. I point out to the noble and learned Lord that I have seen whipping on the previous Amendment upon which he allowed the House to divide. In each case two Government Whips were acting as tellers. That means that there is a Government Whip on the proceedings, and it is idle for the noble and learned Lord to say that it is not so because we have seen that it is.

Lord HARRIS OF GREENWICH

My Lords, perhaps I may speak as I do not have to ask for the leave of the House. I assure the noble and learned Lord, Lord Hailsham, that there is no Government Whip on the proceedings which have taken place this evening. I believe that on one occasion during the Committee stage of the Bill there was. The position as regards today's proceedings and, I believe, last week's proceedings, is that there has been no Whip on Back-Bench supporters of the Government.

Lord HARLSHAM of SAINT MARY-LEBONE

My Lords, in each case the tellers have been Government tellers.

Lord HARRIS of GREENWICH

My Lords, with great respect to the noble and learned Lord, what I say happens to be the truth, as I am quite sure he will accept. Although the Government have expressed a clear position and have, of course, supplied Whips because it is a Government position, the fact is that all Back-Bench supporters of the Government have been told that there is a free vote.

Viscount DILHORNE

My Lords, with the leave of the House——

Lord McCLUSKEY

My Lords, I was in fact speaking when the noble and learned Lord, Lord Hailsham, rose. I think I had obtained the leave of the House to reply when the noble and learned Lord intervened.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I certainly did not intend to interrupt the noble and learned Lord. This is becoming rather disorderly because we have had a whole speech from the noble Lord, Lord Harris, intervening. Although I do not want to stop the noble Lord speaking a third time—I certainly will not refuse leave if he wants it—to pretend that what happened was an intervention by me when we bad been listening to a vigorous speech by his colleague sitting next to him, is almost as absurd as to say that when there are Government tellers there is no Government Whip.

Lord McCLUSKEY

My Lords, with respect, I was on my feet speaking when the noble and learned Lord, Lord Hail sham, stood up. I sat down as a matter of courtesy. With the leave of the House, my third and last point is simply as follows. In relation to this type of offence it must be plain to any lawyer or layman that, when it comes to a question of handling goods stolen abroad, there would be some cases in which difficult legal questions arise and there would be some where there would be no difficult legal questions at all. That is the point I seek to make and it lies behind the recommendation of the James Committee that in some such cases one should allow summary trial.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, could the noble and learned Lord answer the question which the noble and learned Viscount from the Cross-Benches asked and which I have repeated? Can he tell us how many cases of handling goods stolen abroad have been tried in the whole of England and Wales each year?

Lord McCLUSKEY

My Lords, with out notice I cannot answer that question.

Lord AIREDALE

My Lords, that is very disappointing because we suspect that the number of cases a year is very small. If the Government's purpose here, as elsewhere, is to try to relieve the work load upon the Crown Courts, if we are dealing with a very small number of cases it will not relieve the work upon the Crown court to any noticeable extent. So it hardly seems worth not passing this Amendment.

9.40 p.m.

Viscount DILHORNE

My Lords, one thing I hope will be beyond all controversy, and that is that I hare not had any Whips on. I do not intend to enter into that controversy. I mist say that I do not regard the reply of the noble and learned Lord, Lord McCluskey; who I recognise is speaking for the Government and I assume speaking to the Government brief, as in the least degree satisfactory. I hope that we shall not hear many more of that kind of reply. It is not good enough to say that one does not know how many of these offences have been involved at all. Statistics are surely available. There are officials in the Box who ought to be able to provide the noble and learned Lord with the information if he has not got it ready at hand. There has been plenty of time to provide it. My suspicion is that there have not been 10 of these cases in the last year, but the noble and learned Lord is unable to say.

We are dealing with this matter at a very late hour of night. I put forward on the last Amendment an alternative which I thought was a reasonable com promise. It was not, with great respect, adequately dealt with at all. I have put forward a proposal now which cannot affect the main purpose of this Bill. We are dealing with it at a very late hour of night. I do not think that it is usual or the practice of the House on Third Reading to put down Amendments which have already been discussed in Committee and on Report, but I am not at all sure that in these circumstances, taking this at this very late hour of night, and in view of the total inadequacy of the reply, that one would not be justified in raising this again on Third Reading. I shall take advice upon the point. I am certainly not going to withdraw the Amendment, but I will not ask the House to vote upon it.

The LORD PRIVY SEAL (Lord Peart)

My Lords, I have listened carefully to the arguments. I think there has been some misunderstanding here. Whatever arguments there may be on the merits, I do not want the House to go late on this matter and I understand why the noble and learned Lord, Lord Hailsham, feels strongly about this. I thought there was a very good attendance here at this time of night. As a matter of fact, I am certain that if honourable Members in another place were debating this Bill there would be fewer people there. No doubt in another place there may be a smaller attendance than in the Lords, because I always feel that on legal matters the Lords excel. I take note of what the noble and learned Lord, Lord Hailsham, has said, and I should like this debate to conclude reasonably. We could go to Amendment No. 74A, which I think would suit the convenience of all.

On Question, Amendment negatived.

9.43 p.m.

Viscount DILHORNE moved Amendment No. 73A:

Page 45, line 44, leave out paragraph 23.

The noble and learned Viscount said: My Lords, this is the Amendment I moved a few moments ago out of order. I will not take up time by saying what I said then, except to repeat that I am very glad that after the controversy the noble Lord, Lord Harris, and I can unite in supporting this Amendment. I beg to move.

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

Lord HARRIS of GREENWICH moved Amendment No. 74A:

Page 49, line 15, leave out paragraph 32.

The noble Lord said: My Lords, this is a consequential Amendment. I beg to move.

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I believe that the noble Lord, Lord Peart, indicated that he wished to propose that the Report stage be now adjourned.

Lord PEART

Yes.

Moved, That the Report stage be now adjourned.—(Lord Peart)

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, may I say to the noble Lord the Leader of the House that I think he has taken a wise decision. I ought to say that we do not in the least mind staying up late. I do not think that anyone could accuse me of any want of diligence in the service of the House, but I felt that the House was not doing justice to itself and that this late debate, after the intricate and complicated debate on the Miscellaneous Provisions Bill, was not doing the House credit. That is why I objected to going on with it.