HL Deb 02 July 1982 vol 432 cc464-539

11.40 a.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Elton)

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

Moved, That the House do now again resolve itself into Committee.—(Lord Elton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord AMPTHILL in the Chair.]

Clause 47 [Remand in custody in absence of accused]:

On Question, Whether Clause 47 shall stand part of the Bill?

Lord Elwyn-Jones

Clause 47 deals with persons who are held in custody on remand. They have not yet, of course, been tried. At present such persons have to be brought before the magistrates' court each eight days. That is not an empty formality. It gives the court and the defendant's solicitor the opportunity to see whether or not the defendant is in good health, and it is regarded—and I think it is—as an important safeguard that defendants should be seen and, if necessary, heard in person at regular intervals, and for their bail to be assessed, their sureties examined and other matters of that kind to be raised.

We think that courts should not delegate their responsibility in regard to these matters entirely to defence solicitors, as is proposed in the Government's amendments. The advantage of the requirement of the appearance of defendants is considerable so far as their solicitor is concerned. Incidentally, the Law Society made strong representations, in opposition to what is proposed in Clause 47 and the schedule. Present arrangements give the solicitor an opportunity of discussing his case with the defendant, and the important value of it is that it puts pressure on prosecution and defence to get on with their case and the preparation of their case. I fear that a good deal of the delay that happens is very often due to both sides and not simply delay on the part of the prosecution.

So it gives a sense of significance to the fact that there is a man who may well be shown to be innocent who is kept in the appalling conditions of remand prisons, like Brixton. The need for a sense of urgency and the requirement of cases to be dealt with at reasonable speed is very important. I think that the personal attendance of the defendant himself, so that he can see what progress, if any, is being made, is a reassuring provision in many circumstances.

The purpose of Clause 47, which the Minister is introducing, is to get rid of the eight-day requirement and permit the defendant to be remanded in his absence. He will be free to consent or to refuse consent to the provisions relaxing the eight-day rule. But what worries me, the Law Society and I think other noble Lords is that defence agreement is a poor safeguard for the protection of his rights, and there is a fear that it will be presented to the defendant in prison as a well-established formality that he does not any longer attend every eight days. The mischief of what is proposed is that the defendant's consent to what is proposed will, according to the calculations of the Law Society, lead to a period of 36 days elapsing before the defendant is brought before the court again. I am advised that, in calculating the eight clear days, the day of remand and the day of the next hearing can both be disregarded. That means that, if a defendant is remanded on the third of the month, he can be remanded under the eight-day rule to the twelfth of the month. A similar interpretation of the meaning of a period of clear days to that which I have indicated is set out in Order 3, Rule 4 of the Rules of the Supreme Court.

If what I have said is well-founded, the result of a period of remand in the absence of the accused of 36 days under the Government's proposal we think would be quite unacceptable. Indeed, as a compromise suggestion, the Law Society has suggested that if the Government must make a change, far preferable would be a straight increase in the remand period from eight days to, say, 15 days on the basis that this will apply for the first two remands, and thereafter the remand period would revert to the present period of eight days.

The justification that is made for what is proposed is, first, administrative convenience. I do not, of course, disregard that and I understand the pressure upon prison officers in having to be taken away from the more important task of looking after prisoners in prison by being taken on what frequently, I am bound to say, is a rubber stamp procedure. Of course, the cost factor matters and I know the concern of the noble and learned Lord the Lord Chancellor about the implications for legal aid costs in the present practice. But these administrative justifications do not justify what, in our opinion, if these recommendations go through, could well result in a serious infringement of existing civil liberties in conditions which administrative convenience do not sufficiently justify. In those circumstances, we presently have in mind to move that Clause 47 should be left out.

Lord Donaldson of Kingsbridge

In the all-party penal discussions we decided to support the Government broadly on this matter. I hope that the noble and learned Lord, Lord Elwyn-Jones, will not press this too hard at this stage. The administrative chaos with the present staff conditions in prisons is very bad indeed, and the first thing anybody who goes and discusses with a governor the conditions under which prisoners are kept will be told is, "I cannot do this because of this wretched business of sending him off by train 70 miles every eight days in different directions, always under escort".

There is here the important element of the prisoner's rights—the noble and learned Lord referred to this—which must be observed. I would ask him to wait and hear what the Government say about the matter, and, if the safeguards are not satisfactory, let us on Report insist on more satisfactory safeguards. In the meantime, please let us not throw out of the window this one and only effort being made in the whole of the Bill to improve conditions in prisons. It is a very important moment and I am sure the noble and learned Lord will do as I ask, and I hope very much that he will.

Lord Wigoder

This is largely a matter of administrative convenience, and that is perhaps the argument on both sides. For the Government, there is the forceful argument of the enormous expense and use of manpower involved in conveying large numbers of people to magistrates' courts for a pure formality, as it is on 99 per cent. of occasions. I suspect that on the other side there is a certain amount of administrative convenience for legal representatives, who find it much easier to see their clients at a magistrates' court than to make the sometimes tedious arrangements to go to a prison to see their clients there.

There are only two other observations I would make. First, I should be grateful if the Minister would elaborate a little on the words in Schedule 9 where it says that the court may make an order if it is satisfied, that he has not withdrawn his consent to their being so heard and determined". I should be grateful for information on how it is proposed that that might operate. Secondly, have the Home Office considered in recent times the possibility—and it is practicable to do so—of establishing special magistrates' courts within the confines particularly of Brixton Prison and perhaps a few of the other major remand prisons at which applications of this sort could be heard without all the administrative inconvenience which is otherwise involved?

Lord Harris of Greenwich

I shall be brief in agreeing with the noble Lords, Lord Donaldson and Lord Wigoder. I appreciate the arguments that motivate the noble and learned Lord, Lord Elwyn-Jones, but I hope the Government will stand firm on this matter, and I have a slight suspicion that they may. Anyone who visits prisons hears repeatedly from governors about cases where men who are desperate not to go through the routine of eight day remands nevertheless have to do it, despite the fact that no earthly purpose will be served by it. We should, rightly, devote some attention to the case of men who may not be legally represented, but that is dealt with in Schedule 9, as a result of my own observations of the situation in our prisons, particularly in the local prisons which are especially affected. The régimes in those prisons are grievously affected because of the demands made on staff to escort prisoners to all parts of the kingdom, often wholly unnecessarily. I regard the Bill as an advance, and I hope the Government will maintain their position.

11.55 a.m.

Lord Elton

I could not accept the approach of the noble and learned Lord, Lord Elwyn-Jones, to this problem for a number of reasons, but perhaps I should start with the safeguards, to which the noble Lord, Lord Donaldson, in particular directed his enquiries.

The first safeguard is that the power of courts to remand a person in his absence will be exercisable only where the person has given his consent. That consent will not be sought in circumstances where the person concerned could not understand what he was doing. It may be given only after the provisions have been explained to him in plain language. That must be done in the presence of his legal adviser. He will, of course, be free to consult that adviser before giving his consent. Furthermore, it will be open to him to withdraw that consent at any time in the course of the proceedings and, should he do so, he will be brought to court for the next remand hearing after the withdrawal or as soon thereafter as is possible. That caveat does not hide a great escape clause; it simply means that if he withdraws his consent on the morning of the remand hearing, it may not be possible to get him to the court on that day and it would have to be the next one, and I shall come to the resons for that later.

A second safeguard is that a court will have to be satisfied that a defendant continues to be legally represented before it can remand him in his absence. If it should appear to the court that he has ceased to be legally represented since giving his consent to remands in his absence, the court will be bound to adjourn the case for the shortest period possible to enable the accused to be brought before it. As to the mechanics of the court satisfying itself on that, in the case of prisoners in receipt of legal aid, of course the legal adviser is himself bound to inform the court of any change in his legal representation and the initiative will not necessarily lie with the court. In other cases it will.

A third safeguard is the requirement that the defendant, even though he has consented to be remanded in his absence, will be brought before the court at every fourth period of remand; that is, he may not be remanded in his absence on more than three successive occasions. The Government specifically made provision for this because suggestions were made that a defendant's appearance before the court reminds the court, so to speak, of his existence and allows it to urge both prosecution and defence to prepare their case quickly. But nothing in the provisions in the Bill gets rid, as the noble and learned Lord suggested it does, of the eight-day rule. Cases will continue to come before the courts at the same, approximately weekly, intervals as is at present the case, and not at the 15 day intervals that the noble Lord suggested might be substituted in the earlier stages.

The noble Lord, Lord Donaldson, was anxious about the total length of remand without the prisoner's appearance which might result, and he will have realised of course that the final safeguard is that eventually the prisoner must be brought up on the fourth occasion anyway, and the noble and learned Lord was anxious to know how long that might in practice mean. As the noble and learned Lord will know, a defendant may be remanded for up to nine days. That period would normally be used only, for example, when a defendant first appears on a Saturday and the court may then remand him to the Monday nine days later. Almost invariably, remands thereafter would be from week to week—that is, from Monday to Monday—so that the normal maximum period will therefore be every 28 days. It is possible that it might be 29 because of the circumstances to which I referred.

The effect of all this is that, when the court considers each week whether a further remand is appropriate, it has to consider whether remand could be on bail or in custody. Thus, bail remains a possibility at each of these hearings, even though the defendant is not present. Furthermore, if an application for bail is made on his behalf at such a hearing, the provisions of the Bail Act 1976, and in particular the presumption as to the grant of bail, will apply.

Perhaps I should at this point make it clear that the reason why I personally heartily support the clause which noble Lords opposite wish to remove from the Bill relates closely to the question of administrative convenience. That is a very real consideration, because I have seen in the prisons the bad effects of finding escorts for remand hearings, and finding people to do the quite elaborate and complicated administrative things that have to be done before every release of every prisoner to every court on every occasion, and when he comes back. They are considerable. The day before, the prisoner must be given a medical examination; every remand prisoner gets a medical the day before he leaves prison to go to remand, which is once a week. On the same day as his release there must be a complete check of his private property held by the prison, and of the private property he holds in the cell, and any discrepancies have to be reconciled. His private cash has to be checked and returned to him, and any working hours that he has clocked up during the week have to be calculated and paid for.

He then has to be accompanied by either the police or prison officers and brought back and the reverse process gone through. There might be 30 to 40 prisoners involved in this in a morning, and that is why, as I said earlier, if a prisoner decides that he wants to attend remand on the day that it is due to be heard, it simply will not be possible, and it will then quite often be necessary to make it the next remand sitting.

All these matters soak up the time of prison officers in a profligate way, and the result is that they have to be taken off workshop duty, escort duty within the prison, with the result that prisoners—if the noble and learned Lord can give me his attention, as he so kindly and courteously asked me to give him mine last night. Sometimes prison wardens are not available even to escort prisoners from the cell to the education block. The result is that if the noble and learned Lord wants the clause taken out, in so far as it means that more prisoners, rather than fewer, would unnecessarily be going to the courts for remand, and, as the noble Lord, Lord Harris of Greenwich, has said, sometimes unwillingly, then more prisoners, rather than fewer prisoners, also will be spending up to 23 hours a day in their cells. That would be wholly against the intention of the Bill, and I think the intention of the noble and learned Lord.

Lord Wigoder

I am not seeking to raise difficulties. I am seeking to ensure that the new system works. I should like to ask the noble Lord the Minister, first, how in practice, on a further application for remand, will a court decide that it is satisfied that the defendant has not withdrawn his consent? Secondly, under the following subsection, where the defendant was privately represented on the first occasion, how will the court establish whether or not he still has a solicitor acting for him?

Lord Elton

As I attempted to explain in my principal response, it will be for the court to satisfy itself, and in the large number of cases where the prisoner is in receipt of legal aid the legal representative is under an obligation to inform the court should that arrangement cease. As to other arrangements, I cannot actually tell the noble Lord what the individual court will do, but it will be under an obligation to do it, to satisfy itself. If that reply does not satisfy the noble Lord, perhaps I ought to write to him, or return to the matter at the Report stage, if a convenient opportunity arises; if it does not, I shall write to him.

Lord Elwyn-Jones

In case your Lordships think that I am engaged on some personal eccentricity in this exercise, I want to make it clear that I have received strong representations from the Law Society; in other words, from the body representing the solicitors who have to handle these difficulties. The Law Society sent a letter dated 28th January to the Home Office, to Mr. Gange, raising various points of detail, with which I have not troubled the Committee, since we have much to cover this morning. In addition, I have received strong representations from the National Association of Probation Officers. I am sorry that on this occasion r seem to be out of step where previously I have been in step, but as I say, these matters are of importance and I raise them because of the strength and authority of those who have communicated with me.

I think that the best course now would be for me to invite the noble and learned Lord the Minister to consider the points of detail raised in the letter from the Law Society dated 28th January—no doubt he will have a copy, or will have a copy made available to him—and then we can revert to the matter at Report stage. If in the meantime there is time for me to be communicated with and perhaps to be assured about the points that are raised, which, with great respect, seem to me to be points of substance, then perhaps we can discuss the matter again at the Report stage.

The account that has been given of the pressures on the prison administration underlines much of what we have been saying throughout the discussion of the Bill; namely, that the numbers that are brought forward should be reduced. However I shall not be tempted into pursuing that general line of thought, though it lies at the root of much of the pressures that fall upon prison officers.

I quite understand the difficulties that arise, but I shall not let this matter go in that way without having further opportunity of communications with, and I hope receiving communications from, the Minister on these points. In the meantime, in the hope of receiving reassurance on some of the matters that have been raised, I beg leave to withdraw.

Several Noble Lords

Oh!

Lord Elwyn-Jones

No? I do not need leave to withdraw? Then, that makes my task all the easier.

Clause 47 agreed to.

Schedule 9 [Amendments of Magistrates' Courts Act 1980 relating to remands in custody]:

12.6 p.m.

Lord Elton moved Amendment No. 141: Page 76, line 21, at end insert ("(whether present in court or not)")

The noble Lord said: This amendment is intended to remove any ambiguity which might exist in this part of Schedule 9. It deals with the situation where a defendant, under the provisions of the schedule, has already given his consent to remands in his absence, following a description of the arrangements given him by the court in the presence of his solicitor. Where he has given his consent, the case, but not the defendant, will continue to come before the magistrates' court at the usual weekly intervals for the purpose of further remands, but it is not intended that the presence of the defendant's solicitor in court should be required before a remand in absence can take place. Provided that it appears to the court that the defendant has a solicitor acting for him in the case, this will be sufficient to allow the procedures for remand in absence to be applied.

The provision will not, of course, exclude a solicitor from attending if, for example, his client has asked him to and he has agreed, or, more importantly, if he has an application to make to the court. Such an application might, for example, be an application for bail, or for a time limit to be set by the court on further remands in the case. As long as the prisoners' solicitor is acting for him, his interests will be watched. It is for the solicitor to decide on his behalf whether or not he should be represented in court. I beg to move.

Lord Elwyn-Jones

On this matter there are points of detail which might well be capable of being disposed of in correspondence, but I might well want to return to the matter again on Report.

On Question, amendment agreed to.

Schedule 9, as amended, agreed to.

Lord Elton moved Amendment No. 142: After Clause 47, insert the following new clause:

("Legal representation in case of committal on written statement Legal representation in case of committal on written statements.

. In section 6(2)(a) of the Magistrates' Courts Act 1980 for the words "is not represented by counsel or a solicitor "there shall be substituted the words has no solicitor acting for him in the case (whether present in court or not)".").

The noble Lord said: The new clause proposed by the amendment amends Section 6(2)(a) of the Magistrates' Court Act 1980, which prevents a magistrates' court from committing a defendant for trial without consideration of the evidence if he is not represented by counsel or a solicitor. The present provision has been interpreted as requiring the presence of a legal representative in court. The purpose of the amendment is to make it clear that provided the defendant has a solicitor acting for him in the case, the court may commit for trial without consideration of the evidence, whether or not the solicitor is present in court. This is a minor, but nevertheless, worthwhile change to the law regarding committals for trial by magistrates' courts. If the noble and learned Lord is satisfied with that explanation of the purpose of the amendment, I shall wait to see his reaction. I beg to move.

Lord Elwyn-Jones

I have no objections to this proposal.

Lord Wigoder

I should like to raise one query. At the stage of a committal without consideration of the evidence is it not very important that the right decisions are taken as to which of the prosecution witnesses are to be bound over to attend the trial, and which are to be only conditionally bound over? A vast amount of unnecessary public expense can be saved if that decision is sensibly taken at that time. Will it not be very difficult to take the decision if the defendant's legal representatives are not present?

Lord Elton

We shall need to make arrangements to ensure that matters such as this, which are customarily dealt with at committal, can be settled before the hearing. I am referring in particular to such matters as which witnesses will be needed at the trial. Giving the defendant an alibi warning is another example. Ensuring that legal aid has been granted to the defendant and specifying the Crown court centre to which the case will be committed are yet other examples. These arrangements are, I quite agree, important, but they can be made without legislative change.

On Question, amendment agreed to.

Lord Hutchinson of Lullington moved Amendment No. 143: After Clause 47, insert the following new clause:

("Limitation of period spent in custody on remand.

.—(1) Subject to subsections (2) and (3) below, an accused who is committed for trial for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than 110 days, unless the trial of the case is commenced within that period, which failing he shall be liberated on bail forthwith.

(2) A single judge of the High Court may, on application made to him for the purpose, extend the period mentioned in subsection (1) above where he is satisfied that delay in the commencement of the trial is due to—

  1. (a) the illness of the accused or of a judge;
  2. (b) the absence or illness of any necessary witness; or
  3. (c) any other sufficient cause which is not attributable to any fault on the part of the prosecutor.

(3) The grant or refusal of any application to extend the period mentioned in subsection (1) above may be appealed against by note of appeal presented to the High Court; and that Court may affirm, reverse or amend the determination made on such application.

(4) For the purposes of this section, a trial shall be taken to commence when the oath is administered to the jury.").

The noble Lord said: The purpose of this amendment is to make a workable and constructive contribution to solving the problem, or the scandal, of the long-remand prisoner in custody—the person to whom noble Lords have already referred this morning. The aim is to apply in a modified way to England and Wales a rule which has existed for a long time in Scotland, called the 110-day rule. Of course, I appreciate that to suggest to the noble Lord, Lord Elton, that the Home Office should put their heads above the parapet and peer over Hadrian's Wall—or, perhaps, at the western end, I should say Willie's wall—is the very stuff of revolution. Nonetheless, the Home Affairs Committee and the All-Party Penal Affairs Group, and those Members of your Lordships' Committee whose names appear with mine above this amendment (representing, as they do, all parties in your Lordships' House), all take the view that this rule should be applied in England and Wales if practicable.

Its purpose is to attack the law's delays and try to make a start on attacking what one can only describe as the monstrous scandal of the plight of the remand prisoner in this country at the moment. In Scotland, the rule lays down that, if an accused person has been kept in custody for more than 110 days awaiting trial, and the case has not begun, he shall be liberated and never prosecuted again for that particular offence. Of course, England and Wales have a different system of criminal law, which no doubt the noble Lord the Minister will be anxious to emphasise. There is no procurator fiscal here, alas! There are no committal proceedings there. There is far greater pressure of work here; and there is no writ of habeas corpus in Scotland.

Therefore, we recognise that the sanction of total release is too draconian—too great a pill, possibly, for the Eltonian digestion at this time. But what we propose is that if, as a result of being committed for trial, an accused is found to have been kept in custody for more than 110 days awaiting trial, he should then be released on bail. In fact, it is a form of gaol delivery, which was of course the original basis for sending the King's judges around the country on the circuits. The accused would still have to be tried, but he would not any longer languish in gaol.

This amendment, one appreciates, would not have a profound effect on the prison population. It would probably directly affect, I understand, approximately 1,000 prisoners. But, of course, some of those prisoners would be ultimately sentenced to imprisonment, and, of course, the time that they had been in custody would count towards their sentence. In some cases, too, of course, the delay will be due directly to the defence. But on any one day one will find locked up in local prisons 1,000 men and women who have been there for more than 110 days. Nearly half of these people will have been locked up for more than six months; one-tenth for over 12 months; and some for as long as two years or more. Yet, 40 per cent. at least ultimately will be acquitted or sentenced to some non-custodial sentence. All of these people will be living in conditions which have been castigated in the May Report as the worst in prison establishments, when, as May points out, as unconvicted and untried members of society they should be in the best conditions. The Home Affairs Select Committee found these conditions completely unsupportable.

To delay in bringing people to trial can, I submit, amount to a scandal. It can lead to great injustice. The strain on some individuals is such that they can hardly face the trauma of a trial after sitting day after day, for 23 hours out of 24, in a cell awaiting that moment. Witnesses, of course, forget; costs rise remorselessly; and a final acquittal in these cases involves not only loss of liberty for this long period but so often loss of job, loss of home and loss of wife, and the whole thing ends up as a personal tragedy instead of a vindication.

My profession, if I may say so, have made valiant efforts to get these delays reduced. Some months ago the Criminal Bar Association, of which I was chairman for some time, sent two long memoranda to the office of the noble and learned Lord the Lord Chancellor, and a copy to the Home Office, setting out a number of detailed proposals for bringing cases on more quickly than they are brought on now. Nothing has been done to implement a single one of these practical proposals, and therefore this amendment is put down in order to force the situation.

Before I sit down, it is right that I should remind the Committee that ever since 1971 there has been a provision on the statute book—Section 7 of the Courts Act—saying that trials in Crown courts should begin not later than eight weeks after committal; but when that matter was tested in the Court of Appeal in a case perhaps somewhat appropriately called Urbanowsky, that section was held by the Court of Appeal to be directory and not mandatory, and, as a result, of course, it has not had the slightest effect in speeding up the date of trial.

This amendment would afford a powerful incentive to all concerned in bringing persons to trial, both lawyers and administrators; and I would end by reminding the Committee of these words of the noble and learned Lord, Lord McCluskey, who has unrivalled experience of the operation of the criminal law in Scotland: It is absolutely plain that the effect of the 110-day rule in Scotland is dramatically to shorten the period of detention before trial".

I beg to move.

Baroness Trumpington

I rise to support this new clause, which appears under my name, among others. The noble Lord, Lord Hutchinson, has mentioned the May Report. It is only fair to say that the Lord Chancellor and the Lord Chief Justice have made very great efforts to reduce waiting times for trial since that report came out, with some success, and they really should be given credit for those efforts. Nevertheless, waiting times are still much longer than they were in the mid-1970s, particularly in London. The position in London is that the average waiting time in custody of 17 weeks in 1980 compared with 12.5 weeks in 1975.

I would say that long delays seriously reduce the chance of justice being done in a particular case. The more quickly a case is heard, the fresher the events in the minds of witnesses. In the passage of long periods of time, witnesses' recollections fade and facts are likely to become blurred in the memory. The other aspect of this is that the passage of time also prolongs the period of anxiety of witnesses, particularly when the witness has been the victim of the crime and may be very distressed at the prospect of having to testify about the offence in court. To the extent that delay involves repeated adjournments, witnesses are inconvenienced by having to take more time off work and, when the witnesses are police officers, their attendance at court proceedings which result in adjournments reduces their law enforcement capacity.

It is true to say that this proposal does not cut down the amount of prisoners serving sentences, but the case for a limit on the time for which defendants can be kept in prison awaiting trial does not rest on any impact that it may have on the prison population, but on the need to provide safeguards for individual remand prisoners which can prevent inordinate delays in their coming to trial; and a 110-day rule would present such a valuable and badly-needed safeguard.

Baroness Birk

I should like to support this amendment to which I have my name and which was moved so lucidly and comprehensively by the noble Lord, Lord Hutchinson of Lullington and supported by the noble Baroness, Lady Trumpington. It is very unfortunately true that the delays are great and are growing. In 1980, the national average waiting time between committal and trial was 10.7 weeks for those in custody, compared with 7.5 weeks in 1975. The position in London is even worse than that, with the average waiting time in custody of 17 weeks in 1980 compared with 12.5 weeks in 1975.

As both noble Lords have pointed out, these excessive periods on remand in custody are a serious source of injustice. In addition, over 40 per cent. of the defendants remanded in custody to await trial were later acquitted or given a non-custodial sentence, and, if this is deplorable, as the Home Affairs Committee pointed out, when inflicted on persons found guilty of offences, the experience of the many awaiting trial and then found innocent is insupportable. A number of people are spending time in prison who have no right—or should I say "no wrong"? to be there at all.

As noble Lords have pointed out, the longer the period on remand the most the chance of justice being done is reduced. When we ourselves sit in magistrates' courts and cases come on where the alleged offence has taken place many months before, one can see how difficult it is for witnesses to recall what happened when they are pressed on all sides trying to remember details which are almost impossible to recall. It is interesting that in 1980 the then Minister of State at the Home Office, Mr. Leon Brittan, when addressing the Justices' Clerks Society said: It is important not to lose sight of the damage done to the fabric of the criminal justice system by any sort of unnecessary delay, whatever the type of case. It is axiomatic that the staler the evidence that is given the lower the quality of the criminal process must be". This amendment is a moderate one. It allows for exceptions where it is impossible for this to happen or where circumstances are set out in the amendment. Finally, I will come to the point made by the noble Lord who moved the amendment and by the noble Baroness. If this has been found to be the case and it works in Scotland, then it seems to me to be quite wrong for us not to introduce it in this country. I hope that we shall get a favourable and sympathetic response —and by that I mean a positively sympathetic response —from the Minister.

Lord Donaldson of Kingsbridge

I must confess that I think this is putting the Government to a real test. What one expects from Ministers—and I am speaking now of the noble Lord's Secretary of State—and from a progressive Home Secretary confronted with a scandalous situation and with a practical suggestion for modifying it, is action. I think that there are all sorts of difficulties and I could easily reply from the Front Bench opposite about those difficulties, but the point of a really progressive Ministry is to deal with difficulties and not just to brush them aside and continue to do nothing, as we have for year after year. I believe this to be an absolute test of the Government's willingness to supersede the arguments which it will have from its officials—inevitably; because there are difficulties—and say, "This is what we can do and what we will do". I hope that that is what the noble Lord will say.

Baroness Masham of Ilton

I should like to support this amendment, but, while doing so, I would say that even 110 days seems to be a very long time to be remanded in custody if a person is innocent.

Lord Elton

I must congratulate the noble Baroness on the commendable brevity of her interventions throughout the debates on this stage of the Bill. If, as the noble Lord, Lord Donaldson of Kingsbridge, suggested the Government are being given a test, then I fear they have probably been set the wrong paper. I do not rely on the difficulty of what is proposed in the amendment but upon the probable total lack of effect of the amendment as well as the other considerations.

Experience in other countries, as well as common sense, tells us that the speed with which cases are brought to trial will depend on the volume of business before the courts and the resources available to deal with them. To the extent that the Scottish limit is effective, this is attributable to the courts there not being under such pressure that waiting times of more than 110 days result. The Scottish rule is aimed at delay by the prosecution. The noble Lord, Lord Hutchinson of Lullington, pointed out that in their system it is the prosecutor who has responsibility for deciding the mode and venue of the trial and how quickly the case comes to trial. The situation in England and Wales is different.

Control of the trial process here lies in the hands of the court. If the noble Lord, Lord Hutchinson of Lullington, would put his head above the parapet of the fossum which runs to the south of Hadrian's wall (and which was put there for rather obscure and fiscal reasons) he will note that there is already a statutory limit on the time within which a trial must start. That is what he is seeking to bring into the Bill, but we have it already. Under Rule 19 of the Crown Court Rules, all trials must start within eight weeks—that is 56 days, not 110—unless a Crown Court judge has ordered otherwise. Applications to extend the period are normally granted, but the delay is usually attributable to the backlog of work before the court and very rarely the fault of the prosecution.

Lord Hutchinson of Lullington

I drew the Committee's attention in moving this amendment to the fact that that rule has been tested in the Court of Appeal and the Court of Appeal has said that it is not mandatory. As a result, no one takes the slightest notice of it.

Lord Elton

I regret that my archaeological research deflected me at the moment when I should have been responding to that. As I read it, this amendment would still permit extending the time limit in the same circumstances as is permitted in the rule which we are discussing. The net effect would be to add—

Lord Harris of Greenwich

I do not think the noble Lord totally followed the point made by my noble friend. This piece of legislation will be mandatory, whereas the rule is not mandatory. That is a distinction. The noble Lord is missing the point altogether.

Lord Elton

I understand that the 110 day rule is not mandatory either, so we are comparing like with like. The assumption behind the amendment must I think be that the imposition of a time limit would have a salutary effect, and would concentrate the minds of those concerned to work efficiently, and of the Government to make sufficient resources available to enable the courts to cope with the demands made upon them; but such an analysis omits an important dimension, because it takes time to plan and build courts. It takes time to recruit staff to service them, and indeed judges to sit in them. Clearly there is a limit to the amount of money that can be poured into this area.

I can assure the Committee, however, that we are not indifferent to the position of those remanded for lengthy periods. We feel for them and measures are already in hand to reduce the delay in bringing cases to trial. They have already had a measure of success, but we are by no means complacent on them. To reduce waiting times the Crown Court has to handle more cases more quickly, and to cope with more cases new court rooms have been opened and more circuit judges appointed. I believe that between April 1979 and April 1982 there has been an increase of about 63 court rooms and I can also tell your Lordships that on 1st July 1979 there were 303 circuit judges and there are now 333. That is a 10 per cent. increase over three years.

Circuit judges from other areas have volunteered to sit for up to one month at a time in London, where the pressure is very much the greatest, and we are also trying to make the trial itself a more efficient process and encourage early and careful preparation of cases by both the prosecution and the defence, through improvements in procedure and in the system of criminal legal aid.

The measures taken so far, combined with the very strong lead given by the Lord Chief Justice, have reduced waiting times in custody by as much as one-third in London and by one-quarter elsewhere. The average waiting time in London in 1979 was 150 days. Last year it was about 100 days. National waiting times in 1979 averaged 82 days. Last year they averaged around 65 days; and by the last quarter of 1981 average waiting times had dropped to 79 days in London and 50 days nationally. That is still a long time if one is inside prison awaiting one's trial; I entirely accept that. But what I am saying is that we have in hand a policy which is having the effect we seek.

In that connection, one of our main concerns about the amendment is that it might well make matters worse, for it would add to the work of the courts which would have to hear applications to waive the 110-day limit and thus increase the backlog of cases, and add to the inconvenience which my noble friend so rightly wishes to reduce.

I am advised that the 56-day rule is not mandatory in the sense that a conviction will not be quashed if the rule had not been complied with. In this sense the 110-day rule is mandatory. I am a little at a loss among legal terminology at this stage. I will try to clarify this. The point that I believe is of the greatest importance is what is actually happening. What is happening is that waiting times are being reduced and what is proposed, if it has effect, will mean that more time will be taken up in courts reviewing the 110-day cases and having to delay them, and thus the capacity of the courts will not be increased but will be reduced. That militates against what both the noble Lords, and I and the Government, wish to achieve.

Lord Hutchinson of Lullington

I cannot say that the report of the noble Lord the Minister is in any way satisfactory. Perhaps I might start to reply shortly to this debate by saying to the noble Baroness, Lady Masham, that there is no magic in the 110 days, which could quite easily be lowered at some later date. The 110 days was simply taken as a successful part of the Scottish criminal process. The noble Lord the Minister has now, I am glad to say, agreed that he was wrong about the rule which has been held to be not mandatory in this country. Perhaps I may inform him as a lawyer that all "mandatory" means is that the court must follow it. That rule having been made in the Court of Appeal, it simply is not followed and is merely a pious expression of hope.

In Scotland if someone is found to have remained in custody awaiting trial for more than 110 days before the trial starts he has to be released and that is mandatory. That is what must happen. It does not happen, of course, because the prosecutor and all those concerned with the administration see to it that his trial does start, because there would be such a scandal if he were released altogether and acquitted. Having regard to the observation the noble Lord made about there being more business in this country, that is accepted. That is why in this amendment we have made it less dependent and simply provided that a person shall be released on bail.

Baroness Trumpington

I am sorry to interrupt the noble Lord but he said the person would be released altogether in Scotland. Is that correct? Is he not released on bail?

Lord Hutchinson of Lullington

No; he is released altogether, and acquitted in the sense that he can never again be charged with that particular offence.

Lord Elton

I must apologise for disrupting the noble Lord but he has been disrupted in his flow and I would like to get something straight, too. As I understand it, the term "mandatory" is not quite as simple as the noble Lord has put to me because there are provisions for exception in the Scottish rule. If the delay is not due to the prosecutor then the case will continue as it would have done had that rule not existed. I take it that that is what the noble Lord is saying should happen here. So the whole of the amendment is directed simply at delay by prosecutors; but that is not going to address itself to the huge majority of cases where delay is due to pressure on the courts or to the desire of defence counsel to present a more complete case. The noble Lord is therefore suggesting that a great curative effect will be had when the prosecution is dilatory in presenting its case. I suggest that that is caught by Rule 19.

Lord Hutchinson of Lullington

I can only say to your Lordships that it is not, and that the whole of one's experience in the criminal courts is that it is the prosecution that sets the timetable. It is the prosecution which has to get the case committed. It is the prosecution which has to draw the indictment and to provide the statements and so on. The prosecution sets the standards, and this amendment would be directed towards the prosecution and towards the administrators.

Of course, as far as the defence is concerned, if a defendant, after consultation with his lawyers, wishes to remain in custody longer so that his defence shall be properly prepared, or so that some witness should come from abroad, or for some other reason, then, as in Scotland, an exception can be made; but as the noble and learned Lord, Lord McCluskey, has pointed out, the existence of the 110-day rule has, as he said, in Scotland dramatically shortened the period of detention of a large number of accused persons.

In moving this amendment I said that this would not have a profound effect, and I accept entirely what the noble Lord the Minister has said. It will not have a profound effect on the prison population, but the existence of the rule will have a profound effect on those whose duty is it to bring prosecutions and to see that a case is listed at the proper time; and it will have a profound effect on defence lawyers, leading them to hurry up the defence; and it will have a profound effect on those relatively few, out of the hundreds of persons languishing in local prisons, who still remain there for periods of over 110 days. Of course, when you hear that the average time is 82 days—only an average—it means that many, many cases are taking far longer than that and are in fact exceeding the 110-day rule.

As for the suggestion that this would add to the work of the courts because there would be a number of applications to extend the period, of course any rule that you ever bring in you can always say will take up more time because it is a new rule. If there are exceptions, there will be people asking and saying that the exceptions should apply in their case. The number of applications, I suggest, will be minimal in the long run, because most people who have been in custody for 110 days will not be saying to their lawyers, "Please go along to the Old Bailey and make an application that I should stay in custody for another 110 days". In all those circumstances, I cannot but feel that the reply of the Government has been unsatisfactory.

Lord Elton

May I put something straight for the record? The noble Lord referred to 80 as being the average. I presume that he is referring to the London average. The national average waiting time is just under 50 days, which is rather different.

Lord Hutchinson of Lullington

I appreciate that. I feel that I shall have to test the feeling of the Committee on this matter.

12.42 p.m.

On Question, Whether the said amendment (No. 143) shall be agreed to?

Their Lordships divided: Contents, 40; Not-Contents, 47.

DIVISION NO. 1
CONTENTS
Airedale, L. Ardwick, L.
Amherst, E. Aylestone, L.
Balogh, L. John-Mackie, L.
Birk, B. Kagan, L.
Bishopston, L. [Teller.] Kennet, L.
Boston of Faversham, L. Kilbracken, L.
Briginshaw, L. Kilmarnock, L.
Brockway, L. Kinnoull, E.
Collison, L. Masham of Ilton, B.
Cooper of Stockton Heath, L. Melchett, L.
Oram, L.
Davies of Leek, L. Peart, L.
Donaldson of Kingsbridge, L. [Teller.] Ponsonby of Shulbrede, L.
Porritt, L.
Elwyn-Jones, L. Sainsbury, L.
Gaitskell, B. Spens, L.
Hanworth, V. Trumpington, B.
Harris of Greenwich, L. Underhill, L.
Hunt, L. Wigoder, L.
Hutchinson of Lullington, L. Winterbottom, L.
Jenkins of Putney, L. Wynne-Jones, L.
NOT-CONTENTS
Airey of Abingdon, B. Hornsby-Smith, B.
Alexander of Tunis, E. Kinnaird, L.
Ampthill, L. Lane-Fox, B.
Avon, E. Lindsey and Abingdon, E.
Beloff, L. Long, V.
Belstead, L. Lucas of Chilworth, L.
Campbell of Alloway, L. Macleod of Borve, B.
Coleraine, L. Mancroft, L.
Cork and Orrery, E. Marley, L.
Craigavon, V. Merrivale, L.
Crathorne, L. Milverton, L.
Cullen of Ashbourne, L. Mottistone, L.
Dacre of Glanton, L. Murton of Lindisfarne, L.
Davidson, V. Polwarth, L.
Denham, L. [Teller.] Portland, D.
Effingham, E. Rankeillour, L.
Ellenborough, L. Romney, E.
Elton, L. Sandys, L. [Teller.]
Faithfull, B. Sempill, Ly.
Gainford, L. Skelmersdale, L.
Gowrie, E. Teviot, L.
Greenway, L. Trefgarne, L.
Hailsham of Saint Marylebone, L. Vivian, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

12.50 p.m.

Lord Donaldson of Kingsbridge moved Amendment No. 144: After Clause 47, insert the following new clause:

("Power of Court to recommend payment of compensation. Compensation in respect of detention.

. Where in any criminal proceedings involving the trial of a defendant or appeal of an appellant, the Court dealing with the matter finds that the defendant or appellant has—

  1. (a) been remanded in custody, at any stage, by order of a court and detained for a period of 48 hours or more in respect of the alleged offences which form the subject of his appeal or trial; or
  2. (b) been imprisoned or detained pursuant to the order or sentence of a court in respect of the alleged offences which form the subject of his appeal;
and that, in all the circumstances of the case (including the outcome of his trial or appeal, the conduct of the prosecuting authorities, and of any court whose decisions caused him to be detained in one of the manners specified in paragraph (a) or (b) above), it would be appropriate for the Secretary of State to award compensation to the defendant or appellant, the court may so recommend, and give any indication it sees fit as to the nature of the loss that should be compensated and the scale of the compensation which it recommends.").

The noble Lord said: I put down this new clause on the Marshalled List because I was so impressed by the case that the noble and learned Lord, Lord Gardiner, made on Second Reading and, if I may say so, I was not entirely satisfied with the response from the Bench opposite. So I thought this matter ought to be aired. Since putting the amendment down, I have had a long discussion with Justice, whose report is now with the Home Office. They advised me that it would be much better to wait for that and we shall have a proper discussion on that report. I should like to give notice that either the noble and learned Lord, Lord Gardiner, or I will ask an Unstarred Question, if we cannot get time for a debate on this matter. With this in view, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 145 not moved.]

Lord Hutchinson of Lullington moved Amendment No. 145A: After Clause 47, insert the following new clause:

("Grant of bail by Crown Court pending appeal to Court of Appeal.

Bail pending appeal.

.—(1) Section 19 of the Criminal Appeal Act 1968 shall become subsection (1) of that section and at the end there shall be inserted the following subsection— (2) Where the appellant has applied to the Crown Court for bail and that court has withheld bail or imposed conditions the Court of Appeal may, if they think fit, grant bail or vary the conditions.".

(2) In section 81(1) of the Supreme Court Act 1981, after paragraph (e) there shall be inserted— or (f) who has been convicted on indictment and has given notice of appeal or, as the case may be, notice of application for leave to appeal;".").

The noble Lord said: This amendment has the support of the all-party Penal Affairs Group and it is a proposal to give to the Crown Courts power which all magistrates' courts have already: that is, at the conclusion of a trial, for the judge at the Crown Court to be able to grant bail to an accused person who has entered a notice of appeal to the Court of Appeal. Criminal Division, either against his conviction or against sentence.

After an adjudication in the magistrates' court, as your Lordships will well know, the defendant can at once enter an appeal to the Crown Court against conviction or sentence, and apply there and then for bail pending the hearing. If he is refused, he can then go to the Crown Court and renew his bail application there, and eventually again to a judge in Chambers; but if he claims trial by jury at the Crown Court it may well be for precisely the same offence which could be tried either in the magistrates' court or by jury at the Crown Court. If he is then convicted and sentenced at the Crown Court and wishes to appeal, the Crown Court has no power to grant him bail forthwith pending his appeal to the Court of Appeal.

What does he have to do? He has to go to a judge of the Court of Appeal, Criminal Division, in London. He has first to fill in all the proper forms with the notice of appeal and the grounds of the appeal. He has to include the relevant documents, and so on, for the single judge. He has to serve all these papers on the registrar and on the police. Then the judge, before hearing the application, has to read all the papers, familiarise himself broadly with the facts of the case, judge the appropriateness of the sentence and the likelihood of the success of the appeal and listen to the objections at the hearing, if there are any, coming from the police, who themselves have to go to the law courts and attend in order to make their objection.

Your Lordships can see that the whole procedure is an expensive one in man-hours: it is expensive in that lawyers are normally involved, that a police officer has to go and make his objections on instructions; and of course the appellant, during that period of time, has been kept in custody, having been sentenced to some term of imprisonment.

The Crown Court already has power to grant bail to persons, as I have said, who have appealed from the magistrates' court and who have been sentenced there. The Crown Court, of course, has power to grant bail to defendants before and during a trial and before they are sentenced, and the Crown Court has power to grant bail where an appellant wishes to appeal in special circumstances in the Divisional Court. Furthermore, the Crown Court may grant a certificate to any defendant who has been convicted that his case is a fit case for appeal. He can do that and at the same time the judge cannot, having granted this certificate, say: "and I grant you bail".

One asks, of course, and no doubt one will hear from the noble Lord the Minister in due course; why is the situation as it is? Why cannot the judge grant bail after a trial on indictment? What will be said to begin with, no doubt, is that an appeal from the magistrates to the Crown Court involves a complete rehearing of the proceedings if it is an appeal against conviction. An appeal to the Court of Appeal involves seeking leave from the Court of Appeal if the appeal is not one of pure law. If it is on the facts or on a mixture of facts and law, then leave has to be obtained from the Court of Appeal actually to appeal. That is the difference between the two circumstances. But one cannot see, subject to anything the noble Lord the Minister will have to say, any reason at all why the judge in the Crown Court in a proper case should not grant bail, once notice of appeal has been filled in, for the purpose of applying for leave to the Court of Appeal for the leave of appeal and, if it is a question of peer law, simply granting bail on seeing the notice of appeal.

There are obvious reasons for giving the judge this power. As I have already pointed out, it would save an immense amount of paper work, of people having to go to London, of police time and of delay. The trial judge knows all the facts of the case, having just tried it; the police officers are there in court to make their objection if they wish to; counsel and solicitors are there in court; and it can all be done at the conclusion of the case at a great saving of time and expense. Although I am moving this amendment, I am moving it against my own interests, as a member of the Bar, because the whole of this procedure involves a lot of lawyers' time and remuneration—all of which, as I say, could be saved.

It also saves, of course, the appalling trauma and injustice of a person having to spend a week, a fortnight, a month or perhaps even longer in prison with all the horrors of the prison procedures upon reception and so on, if, for instance, he is a first offender before eventually his appeal gets to the High Court and maybe is allowed and his conviction quashed, or the appeal is allowed and the custodial sentence is altered to a non-custodial sentence.

The result of the present procedures is in some cases to give rise to certain undesirable effects. When the Court of Appeal hears an appeal and sees that the appellant has, for instance, already served six months of a sentence of nine months, or whatever the amount may be, and they feel they must allow the appeal, then, if they allow the appeal to the extent of substituting the sentence of imprisonment by a fine, the result is that that appellant will in fact have been fined and sentenced to imprisonment.

If, on the other hand, the Court of Appeal feel that it was wrong to impose a sentence of imprisonment at all, it is a great temptation to them to adjudicate on the basis that, "We think that this sentence should be altered to the number of days that this appellant has already served, which will mean his immediate release". Whereas what they should have done was to say, "The term of imprisonment which was imposed should never have been imposed at all". Because of the embarrassment, and the results which will arise from someone being improperly incarcerated for a period of time, the issue is fudged and the court goes through this rigmarole of saying, "We allow this appeal to the extent that the sentence should have been the number of days which this appellant has already served, which means his immediate release"—and that is not a desirable process.

The other result of the present situation is that when a number of offenders who are sentenced to fairly short terms of imprisonment are advised that they have a good ground of appeal, they will say, "No, I would rather serve the sentence, because I shall not be granted bail and my application will not come on, in any event, for a considerable time. If the appeal goes forward, then I shall very likely be in the position of having served one month's imprisonment, and then the court will quash the imprisonment and will put me on probation for two years. I do not want to go to prison and be put on probation for two years, so I would rather serve my six months and get rid of the whole thing".

That is the effect of this situation. Whereas, if this person, particularly a first offender, could be granted bail immediately, he would proceed with his proper appeal on the advice of his lawyers. That is another effect of the lack of power of the Crown Court judge to grant bail, which in itself is highly undesirable also. I beg to move.

Lord Elton

If I may clear my mind, of course I recognise the great desirability of what the noble Lord proposes. But, at present, an appeal against conviction on indictment is submitted in writing to the Court of Appeal, and it would seem to follow from that that only a judge in the Court of Appeal (Criminal Division) would have before him the material upon which the decision as to bail would have to be based. I want to consider what the noble Lord has said, but it could not be dealt with elsewhere, if that is where the material was; for example, as the new clause proposes, by a judge of the Crown Court.

As I understand it, the noble Lord's amendment gives the power to grant bail to all Crown Court judges and not just to the trial judge. Therefore, the material would not be to hand, because it would presumably have gone to the Appeal Court with the application for appeal. Therefore, no application for bail could, in practice, be dealt with elsewhere, without applying to the Criminal Appeal Office to provide the essential information, which would delay the application and thwart precisely the aim behind the clause.

I may have misread what the noble Lord intends, but I think I should also tell your Lordships that we accept that it is important that, if there are strong grounds of appeal, the question of bail should be considered as a matter of urgency. It is desirable that those cases should be drawn to the attention of the Registrar of Criminal Appeals without delay. It is at present understood that the trial judge may get in touch with the Registrar to say whether he regards an appeal as urgent, and I am glad to be able to tell your Lordships that this arrangement is to be put on a more regular and formal footing, and that the Lord Chief Justice intends to issue formal guidance on the point. I hope that this will achieve a great deal of what the noble Lord wishes and I should be most interested to hear what is his view on that.

Lord Campbell of Alloway

May I support the spirit of this amendment? The reason why I cannot support it in its present form is that there are problems which have been mentioned by my noble friend the Minister concerning the precise functions of the judge and of the Court of Appeal. I do not want to take time on Friday in your Lordships' House. I would most respectfully ask my noble friend whether he would take it back, pending further consideration of what the Lord Chief Justice might think by way of guidance.

Lord Hutchinson of Lullington

I am very glad to hear what the noble Lord the Minister has said about the Lord Chief Justice issuing some proposals for seeing that short sentence appeals are given some special treatment as a matter of urgency. I should like to take the opportunity of paying a compliment to the efforts which the Registrar at the Court of Appeal (Criminal Division) always makes, if one asks him to try to expedite appeals of this kind. I know that every effort is made to do so. Nevertheless, the delays continue to be too long. But I am encouraged by what the Minister has said, particularly in his opening words, and I would ask him whether, in the period which elapses before this matter comes back, further thought could be given to this idea of the Crown Court judge of trial—of course, it would have to be the judge of trial when the amendment is properly drafted—being given this power. As the Minister said, he is wholly on the side of the idea and, apart from the procedures which are now laid down for putting your appeal in writing, taking it to the Registrar's office and so on, we are surely all agreed that we might expedite these appeals in a very simple way by giving the judge power to grant bail in proper cases. So would the Government consider bringing this forward as an idea at a later stage? But, in the circumstances, I am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 145B not moved.]

Clause 48 [Persons recommended by courts for deportation]:

On Question, Whether Clause 48 shall stand part of the Bill?

Lord Elton

I wonder whether I might at this point tell your Lordships that we have it in mind to table a further amendment to the Immigration Act 1971, which the Government will propose at Report stage. That amendment, like the amendments that we have been debating today, concerns the procedures relating to the prosecution of offences under the Act. Section 24(1)(b) of the Act provides that a person commits an offence if he knowingly remains beyond the time limited by his leave to enter or remain in the United Kingdom. In the recent judgment of your Lordships' House in the case of Grant v. Borg, it was ruled that the offence of knowingly overstaying under this subsection of the Act can be committed only on the day after a person's leave expires and on no other day. This judgment has greatly reduced the ability of the police to prosecute overstayers, and thus to play an effective role in the proper enforcement of immigration control. We therefore propose to amend that subsection to make overstaying a continuing offence. I thought it proper to give your Lordships notice of that intention at this stage.

Clause 48 agreed to.

Schedule 10 [Amendment of Schedule 3 to Immigration Act 1971]:

1.10 p.m.

Lord Elton moved Amendment No. 146:

Page 77, line 32, at end insert— ("1. In paragraph 2— (a) in sub-paragraph (1), after the word "directs", in the first place where it occurs, there shall be inserted the words "or a direction is given under sub-paragraph (1A) below,"; (b) the following sub-paragraph shall be inserted after that sub-paragraph—

(c) the following sub-paragraphs shall be substituted for sub-paragraph (5)—

The noble Lord said: This amendment is concerned with a narrow category of cases: those where a person who is convicted of an offence is recommended for deportation by a court under Section 6 of the Immigration Act 1971. Under that Act such a person is detained pending the making of the deportation order unless either the court or the Secretary of State directs his release. Previously release had to be unconditional, but Clause 48 and Schedule 10 to this Bill, which were introduced on Report in another place, enable a court to impose restrictions, so allowing courts to release people whom they would not otherwise think they could release.

This amendment, which was foreshadowed by my honourable and learned friend in another place, takes the process one stage further by giving a court of appeal power to direct the release of a person recommended for deportation—whether subject to restrictions or otherwise. At present it appears that some appeal courts do not have this power. It also gives the Secretary of State the same power as the courts to impose restrictions when directing release. The amendment will make a small but nevertheless important contribution to the object of reducing the number in custody. I beg to move.

Lord Avebury

This matter has caused endless correspondence, as the noble Lord, Lord Elton, may be aware. Certainly his predecessors in office have had to deal with an enormous number of cases where, because the Secretary of State does not get around to considering a recommendation for deportation made by the court until towards the end of a man's sentence, the procedures have not been completed by the day on which he ought to have been released. He is then held, sometimes for fairly considerable periods, under the Immigration Act powers after he would otherwise have ended his sentence. This is clearly quite contrary to the rules of natural justice and I am pleased that some steps have been taken in this Bill to give power to the courts to direct the release, whether subject to conditions or not, of a person who would otherwise be so detained.

I wanted to take this opportunity to say that I do not think the amendment goes quite far enough. As I have tried to emphasise to the right honourable gentleman Mr. Timothy Raison in endless correspondence over the years, the right course of action to take is to see that the Secretary of State does consider recommendations for deportation in good time before a person comes to the end of his sentence. The objection to this, which has always been raised in correspondence, is that circumstances may change and that the Secretary of State may be less or more disposed to comply with the recommendation of the court in the changed circumstances which may apply when the person reaches the end of his sentence.

I do not believe that this is very generally true. It could hardly ever happen that some change in a man's circumstances or in the knowledge of the Minister of his case would cause him to change an opinion which he would otherwise have held by the lapse of time. Therefore, once a prisoner has exhausted his right of appeal against conviction and sentence, I think that consideration of a court's recommendation for deportation should be initiated and, if the person has any right of appeal against the deportation order and he does not wish to exercise it, which is not often the case, that then he should be given the opportunity to say so at that stage. If these things were done, I believe that very few instances would arise where a person needed to make an application to the court in accordance with this schedule.

Lord Elton

I am not sure whether the noble Lord wishes me to reply, because he probably knows the facts which I should put before him in the reply as well as anybody in this Committee. He will know that some of the delays are inevitable. One important factor is the period for lodging an appeal. Three weeks in the case of a magistrates' court order and four weeks in another case has to elapse before the Home Secretary may sign a deportation order. Then the person has another fortnight in which to appeal against the destination specified in the removal direction. So there is an irreducible period during which a person is liable to be detained, and if he appeals the period is longer. If the person concerned receives a noncustodial sentence, he will be detained solely as a result of the recommendation for deportation.

I do not think that this will assuage the noble Lord's anxiety. All I can say is that I am aware of it. If I thought that he would not make my honourable friend continually aware of it, I should undertake to make good the omission. However, I do not think I can tempt the noble Lord into reducing his correspondence by that means.

Lord Avebury

There is only one point I would ask the Minister perhaps to consider as a result of his intervention: that in the case of the non-custodial sentence where, as he rightly points out, a person is held in detention only because of the powers of the Immigration Act and not because of any sentence of a court of law, it is not necessary for time to be allowed for that person to appeal against destination. Although formerly Ministers always used to say that this was legally necessary, there have been instances, as the noble Lord may be aware, in which the person concerned has signed a memorandum waiving his right of appeal against deportation. The Secretary of State has then, very reasonably in my opinion, proceeded with the deportation notice without waiting for the two weeks to elapse in which the person would theoretically have had the right to appeal against destination.

I hope the noble Lord will confirm that this procedure is now operated regularly, because there is no point whatsoever in keeping somebody in prison for an extra two weeks in order to exercise a right which he does not wish to exercise.

Lord Elton

I think I had better look into that point and let the noble Lord know.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 147:

Page 78, line 20, after ("Justiciary;") insert— ("(cc) the Crown Court in Northern Ireland;

The noble Lord said: This is a purely drafting amendment. Clause 49(1) deletes the words "and after-care" from the designation of the probation service and probation areas and committees. It is expressed to affect every enactment relating to any such area or committee. It should also have been expressed to affect every enactment relating to the probation service. The amendment adds the necessary additional words to the subsection. I beg to move.

On Question, amendment agreed to.

Schedule 10, as amended, agreed to.

Clause 49 [Probation and after-care]:

Lord Elton moved Amendment No. 148: Page 50, line 21, at end insert ("or that service").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 49, as amended, agreed to.

Schedule 11 [Probation and after-care]:

Baroness Birk moved Amendment No. 149: Page 79, leave out line 45.

The noble Baroness said: In the absence of my noble friend Lord Longford, I am moving this amendment. I shall move it very briefly, because it ties up very closely with Government Amendment No. 149A which is to be moved next. The purpose of Amendment No. 149 is to prevent the repeal of that part of the schedule which deletes day training centres. We should like to see them back in the Bill so that they can continue in existence. They were introduced to offer an alternative to custody for petty persistent offenders who become recidivists. Unlike many attempts at providing alternatives to custody, these have been singularly successful and their retention has the full support of the National Association of Probation Officers. We feel it is wrong that, at a time when alternatives to custody have never been more necessary than they are today, the Government propose to repeal this provision. Rather than repeal it, we believe that the Government should instead be introducing day care centres in all large urban conurbations. Since this matter of retaining these centres was raised in another place, the whole question resulted in the case of Cullen v. Rogers, which is some of the substance of Amendment No. 149A which the Minister will move shortly, I will leave it at that point so that we do not go over the same ground twice. I will leave it on the basis that whatever way this is decided, and however it is taken in the Government amendment, we consider the question of retaining day centres of the utmost importance. I beg to move.

Lord Hunt

I am glad to give strong support to the amendment moved by the noble Baroness. On 12th May in another place an identical amendment was moved by Mr. Kilroy-Silk. In replying to the Motion, the Minister gave the impression, at any rate to me as a reader of his remarks, that he would take carefully into consideration the arguments for retaining day centres, and therefore that amendment was withdrawn. It is for this reason that it is most important that this amendment should be considered again.

I have visited three out of the four day training centres in this country. The only centre I have not visited is that in Sheffield but I have received very full documentation about that centre. Recently I was in Liverpool and saw the latest state of development there. I have also visited a considerable number of day centres run by the probation service. I make that point because the Minister, when he was finishing up his remarks in the other place, seemed to make some kind of comparison between day centres and day training centres. I will not read out what he said but he was talking about the respective merits of the day centres as distinct from the day training centres. In case there is any doubt in your Lordships' minds, there is really no basis for comparison between the two types of centres.

The day centre is a general, social resource for providing shelter for all sorts of people; alcoholics, people who are out of work, and many other people who are inadequate in one way or another. They come in and find warmth, people to meet with, a place to sit where they may sleep in their seat, and television. But by and large, they do very little all day apart from drinking cups of tea. I do not wish in any way to make derogatory remarks about day centres because they certainly provide for an essential need, and for those for whom attendance at a day centre is ordered by a court, it may be a very good thing that they are required to go there.

A day training centre is a centre with a structured, positive programme of one sort or another in crafts and technical training and education. It also provides for recreation and for a good deal of counselling and group discussion, all aimed at enabling people who are for the most part petty persistent offenders to find self-confidence, to become more self aware, socially conscious, and be able to communicate with themselves and with other people. They are doing an admirable job and there is no question but that places are now being filled, largely by the courts. The fact that places were not filled earlier—and this point was mentioned in another place by the Minister—was in no sense on account of the courts, on the merits of the centres or on the probation service which runs them. It was in large part due to prevarication under a previous Administration over the question of who should pay social benefits to the clients inside those centres. I believe it would be a grievous loss of a non-custodial facility if these centres were to be deleted from existence by this Bill.

1.25 p.m.

Lord Elton

It might be for the Committee's convenience if I refer also to Amendments Nos. 149A, 149B, and 149C, which address themselves to the same problem. I can indeed assure the Committee that arrangements have been made with the four probation areas concerned for the centres in question to continue in use as an alternative to a custodial disposal by the courts. Repeal of Section 4 will enable the centres to be used more flexibly and intensively as day centres with their facilities available to courts from a wider area. The complication has been that your Lordships' House recently dismissed an appeal, to which the noble Baroness referred, in the case of Cullen v. Rogers and upheld the decision of the Divisional Court that there was no power to require a probationer to attend a day centre. In order to ensure that the courts do have such a power, we have tabled Amendments Nos. 149A to 149C.

During the Report stage of this Bill in another place the Government did undertake to amend the law relating to probation orders in the light of the judgment of the House sitting on that case. This undertaking is fulfilled in Amendment No. 149A. At the last moment, the noble and learned Lord, Lord Elwyn-Jones, moved the alternative amendment to take account of Cullen v. Rogers. I am addressing myself to these things in parallel. The judgment concerned the nature of the requirements which can be inserted in a probation order made under Section 2(3) of the Powers of Criminal Courts Act 1973. The unanimous decision of your Lordships' House was that no requirement might be made under that section if it involved a substantial element of custodial punishment, or if a probationer was thereby subjected to unfettered control at the discretion of a probation officer.

The case arose from a requirement that a probationer should attend a day centre run by the Northumbria Probation and Aftercare Service. Day centres are a recent development in the probation service and are used as a community-based facility to assist in supervising offenders. They offer a variety of services from an informal unit with the probation officer to well-organised courses of literacy and social skills. There are about 80 of these day centres and we understand that before the Cullen v. Rogers judgment a number of courts included a requirement to attend such centres. The noble Lord, Lord Hunt, is concerned with this. As a result of the judgment, no further requirements of that kind could be made.

We believe it is important that provision should be made to enable courts to insert in a probation order requirements to attend day centres. They offer one of the means whereby the probation service can contain in the community quite sophisticated offenders. There has been widespread concern for years at the decline in the number of persons being placed on probation as opposed to being put into custody. Over 33,000 offenders were given probation in 1972 but this total fell to under 27,000 by 1978. There was a welcome rise in 1979 and that rise continued into 1980, when the total again rose to just over 33,000. That represents 6 per cent. of all persons sentenced for indictable offences. This growth in the number of people placed on probation is some evidence of the increased confidence of sentencers in this form of disposal and we all wish this trend to continue. Day centres are an important element in ensuring the further development of a probation order.

It is important that any provision that is made should be compatible with the nature of probation. That is why the comments made by the noble and learned Lord, Lord Bridge of Harwich, in his judgment on the Cullen v. Rogers case about custody and control, were significant. He pointed out that no requirement made under that section might be properly imposed if it involved a substantial element of custodial punishment or if it subjected the probationer to the unfettered discretionary control of the supervising probation officer. I think we are all agreed that it would be wrong to attempt to make provision for requirements which did not command the confidence of the probation service or which introduced confusion into the minds of sentencers; I think it is at this point that the Government amendment and that proposed by the noble Baroness differ.

The Government amendment seeks to do two things. The first, in new Section 4B, is to make provision for requirements to attend the day centre. These provisions are largely modelled on the existing Section 4 in the 1973 Act, which deals with day training centres. The judgment of your Lordships' House offered no criticism whatever of that existing provision. There was no hint that it was not compatible with the ethos of a probation order. We have, therefore, extended that provision to cover day centres. We have made one or two minor changes; for example, that approval of such centres should now be made by the local probation committee rather than by the Secretary of State. We believe that this is a move in the right direction and reflects other measures in Schedule 11 to this Bill. We have also made reference to centres run by other bodies. That is another important point, to harness the resources of the local community as a whole.

Secondly, in new Section 4A we are making provision for further developments in this sort of requirement. We believe that both the courts and the probation service may wish to make use of a whole range of facilities in the community which are not run primarily for the benefit of offenders but from which they may well profit if they are required to attend. There are possibilities here for working with offenders who have a drink or drugs problem, or those with psychological problems who will need professional help. We do not very often have the opportunity to amend the law. The probation order is now at a very interesting stage, and we do not wish to place any statutory limit on its use which will prevent it from developing in a proper way.

I recognise that the amendment moved by the noble Baroness is also an attempt to deal with Cullen v. Rogers. I would like to say that repealing Section 2(3) removes the power of the court to insert the standard requirements, to be of good behaviour, to report to the probation officer and to inform him of any change of address. That, in our view, is a serious omission, and one which is, I expect, unintentional. I think that in seeking to introduce safeguards for the offender the amendment goes a little too far with the result that it places obstacles in the way of the supervisor.

Baroness Birk

I wonder whether I could help the Minister and save time. I realise that he is now referring to Amendment No. 150A. We shall not be moving it.

Lord Elton

I am afraid I spread my net too wide in anticipating the noble Baroness. I do apologise. I think nonetheless it may have been useful to speak of the whole Cullen v. Rogers area, and it was helpful of the noble Baroness to introduce this debate in the way that she did.

Lord Mishcon

Perhaps I may say that we will not be moving Amendment No. 150B, either.

Lord Elton

Well, the more amendments that are not moved, the more quickly we shall be able to get to the end of the day. Accepting this glad news, I hope that I have managed to describe to your Lordships, without confusing you too much as to the relevance to other amendments, what our intentions are in the principal amendments which relate to this area of the Bill.

Baroness Birk

It has all become a little confusing now. Perhaps I can start at the end. The reason why my noble friend are not moving Amendments Nos. 150A and 150B is that we think on balance the Government's amendments are better than those. So that is out of the way.

What I want to be quite sure about, and also to feel that the noble Lord, Lord Hunt, is satisfied about, is that under the new Government amendments it will be possible for the day attendance centres to continue and to be encouraged, and that there will be opportunity for them to expand. Then there are two questions I want to ask. I was listening carefully to what the Minister said, but he will forgive me if I am going over the same ground; I find it quite difficult, as I was going to move the amendment originally. Are we satisfied that in view of the House of Lords judgement in Cullen v. Rogers the Government's amendments do ensure that probationers can now be required to comply with such basic requirements as reporting regularly to the probation officer, reporting change of address, and the other conditions which are usually conditions of probation?

The second Question is this. Section 4B(2) of the Government's amendments prevents the courts from imposing a requirement of attendance at a day centre on an offender who is also required to undergo treatment for a mental condition. This seems to be reasonable enough if residential in-patient treatment is required, but there does not seem to me to be any reason why somebody who has to attend for treatment as an out-patient once a month should necessarily be considered an inappropriate person to be required to attend a day centre. I would say there is a strong case for saying that many such offenders could benefit from the structure and support the day centres can provide. If I am right, that this is not included, I would ask the Minister whether the Government would amend their proposal at Report stage so as to exclude in-patients only. We are grateful to the Government for their response to what took place in another place in bringing forward these amendments. All we want to be assured of is that these are really watertight and do cover the points that worry us, and that if they do need amendment no doubt the Minister will be able to bring them back on Report.

Lord Elton

The noble Baroness has asked for reassurance, which I am fairly confident I can bring; in fact, I reassure her. The intention of the amendment is indeed to foster the development of the day centres. It is further explicitly drafted to include the standard probation requirements such as regular reporting. As to the out-patients issue, that, I think, will take me a little longer to answer.

Baroness Birk

I thank the Minister very much for that very reassuring reply. I think what my noble friend Lord Hunt and I are concerned about is that there is no possibility of abolishing the day training centres. I think we would want a competely specific answer on that.

Lord Elton

That is what it is all about. I think the noble Lord, Lord Hunt, can be quite reassured about that. That is why we are where we are. On the question of out-patients, I am not absolutely certain I have got the noble Baroness's question right. We might discuss this matter between this stage and the next. There is concern, if it is out-patients for mental treatment, whether they would be entirely suitable. I am speaking without sufficient particular knowledge about this. If it is an issue that she wishes debated, she can bring it forward at Report stage. If I can satisfy her in correspondence or conversation before then, perhaps she would allow me to do so.

Baroness Birk

Our concern is that there will be some, but of course not all, mental patients who attend as outpatients, who would be quite suitable for attending a day training centre and it would benefit them as well. The example I gave was somebody who goes once a month or once every few weeks to a mental hospital for treatment. If the person, even as an out-patient, is not suitable, obviously one would not ask for that. But as the situation is at the moment, I understand that outpatients are excluded from day training centres in the same way as are in-patients. Of course, with in-patients that is understandable, but what we are asking for is that out-patients should, where it is appropriate, have the opportunity to attend the centres.

Lord Elton

The obviously important phrase is "where it is appropriate", and what I will try to discover is where it would be and where not. I would not wish to mislead the Committee about the day training centres. What we are bringing about is that the four centres in question will continue under the new day centre powers I have described. That is to say, that the statutory day training centres will cease to exist in that form, but the four centres will continue under the new day centres power.

Baroness Birk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn,

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

As I understand it, the Minister has already spoken to Amendments Nos. 149A, 149B and 149C.

Lord Elton

No, my Lords. Amendment No. 149B is separate. I have spoken to Amendments Nos. 149A and 148C.

The Deputy Chairman of Committees

In that case, perhaps we can take Amendment No. 149A formally.

1.40 p.m.

Lord Elton moved Amendment No. 149A:

Page 80, line 8, at end insert— ("1A. In section 2 of that Act (probation orders)

  1. (a) in subsection (3), for the words" and 4 "there shall be substituted the words", 4A and 4B"; and
    2. 493
  2. (b) in subsection (6), for the words" or 4"there shall be substituted the words, 4A and 4B"; and
1B. The following sections shall be inserted after section 4 of that Act— Requirements in probation orders. 4A.—(l) Without prejudice to the generality of section 2(3) above, the power conferred by that subsection includes power, subject to the provisions of this section, to require the probationer—
  1. (a) to present himself to a person or persons specified in the order at a place or places so specified;
  2. (b) to participate or refrain from participating in activities specified in the order—
    1. (i) on a day or days so specified; or—
    2. (ii) during the probation period or such portion of it as may be so specified.
 (2) A court shall not include in a probation order a requirement such as is mentioned in subsection (1) above unless it has consulted a probation officer. (3) A court shall not include a requirement such as is mentioned in subsection (1)(a) above or a requirement to participate in activities if it would involve the co-operation of a person other than the probationer and the probation officer responsible for his supervision, unless that other person consents to its inclusion. (4) A requirement such as is mentioned in subsection (1)(a) above shall operate to require the probationer—
  1. (a) in accordance with instructions given by the probation officer responsible for his supervision, to present himself at a place for not more than 60 days; and
  2. (b) while there, to comply with instructions given by, or under the authority of, the person in charge of the place.
 (5) A requirement to participate in activities shall operate to require the probatione—
  1. (a) in accordance with instructions given by the probation officer responsible for his supervision, to participate in the activities for not more than 60 days; and
  2. (b) while participating, to comply with instructions given by, or under the authority of, the person in charge of the activities.
 (6) instructions given by a probation officer under subsection (4) or (5) above shall, as far as practicable, be such as to avoid any interference with the times, if any, at which the probationer normally works or attends a school or other educational establishment. Probation orders requiring attendance at day centre. 4B.—(1) Without prejudice to the generality of sections 2(3) and 4A above, the power conferred by section 2(3) above includes power, subject to the provisions of this section, to require the probationer during the probation period to attend at a day centre specified in the order. (2) A court shall not include such a requirement in a probation order unless—
  1. (a) it has consulted a probation officer; and
  2. (b) it is satisfied—
    1. (i) that arrangements can be made for the probationer's attendance at a centre; and
    2. (ii) that the person in charge of the centre consents to the inclusion of the requirement,
and no such requirement shall be included in a probation order which includes a requirement under section 3 of this Act with respect to treatment of the probationer for his mental condition. (3) A requirement under subsection (1) above shall operate to require the probationer—
  1. (a) in accordance with instructions given by the probation officer responsible for his supervision, to attend on not more than 60 days at the centre specified in the order; and
  2. (b) while attending there to comply with instructions given by, or under the authority of, the person in charge of the centre.
 (4) Instructions given by a probation officer under subsection (3) above shall, so far as is practicable, be such as to avoid any interference with the times, if any, at which the probationer normally works or attends a school or other educational establishment. (5) References in this section to attendance at a day centre include references to attendance elsewhere than at the centre for the purpose of participating in activities in accordance with instructions given by, or under the authority of, the person in charge of the centre. (6) In this section "day centre" means premises at which non-residential facilities are provided for use in connection with the rehabilitation of offenders and which—
  1. (a) are provided by a probation committee; or
  2. (b) have been approved by the probation committee for the area in which the premises are situated as providing facilities suitable for persons subject to probation orders.".").

On Question, amendment agreed to.

Lord Elton moved Amendment No. 149B: Page 80, line 23, leave out ("and").

The noble Lord said: The word "and" where it appears in the text is superfluous. This amendment removes it. It is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 149C:

Page 80, line 30, at end insert ("; and"). (c) in sub-paragraph (1) of paragraph 3 (which relates to the cancellation etc. of requirements) for the words "or 4") there shall be substituted the words", 4A or 4B".").

On Question, amendment agreed to.

Schedule 11, as amended, agreed to.

Lord Sandys moved Amendment No. 149D: After Clause 49, insert the following new clause:

("Right of appeal of probationer etc.

.—(1) The following subsection shall be inserted after subsection (1) of section 50 of the Criminal Appeal Act 1968 (meaning of "sentence")— (1A) Section 13 of the Powers of Criminal Courts Act 1973 (under which a conviction of an offence for which a probation order or an order for conditional or absolute discharge is made is deemed not to be a conviction except for certain purposes) shall not prevent an appeal under this Act, whether against conviction or otherwise".

(2) The following subsection shall be inserted after subsection (1) of section 108 of the Magistrates' Courts Act 1980 (right of appeal to the Crown Court)— (1A) Section 13 of the Powers of Criminal Courts Act 1973 (under which a conviction of an offence for which a probation order or an order for conditional or absolute discharge is made is deemed not to be a conviction except for certain purposes) shall not prevent an appeal under this section, whether against conviction or otherwise".

(3) In the Powers of Criminal Courts Act 1973—

  1. (a) following subsection shall be inserted after subsection (1) of section 11 (substitution of conditional discharge for probation)—
  2. (b) in Schedule 1 (discharge and amendment of probation orders)—
    1. (i) the following sub-paragraph shall be inserted after paragraphs 1(l) and 3(1)—
      • "(1A) No application may be made under subparagraph (1) above while an appeal against the probation order is pending.";
    2. (ii) the following sub-paragraph shall be inserted after paragraph 2(1)—
      3. 495
      • "(1A) No order may be made under sub-paragraph (1) above while an appeal against the probation order is pending.";
    3. (iii) in paragraph 4, for the word "Where" there shall be substituted the words" Subject to paragraph 4A below, where"; and
    4. (iv) the following paragraph shall be inserted after that paragraph—
      • "4A. No application may be made under paragraph 4 above while an appeal against the probation order is pending.".").

The noble Lord said: The Government have brought forward these amendments primarily to resolve a problem which has arisen in relation to the Court of Appeal's jurisdiction to deal with appeals against sentence where an offender has been put on probation or given a conditional discharge. The problem arises out of the interaction of Section 13 of the Powers of Criminal Courts Act 1973 and the provisions in the Criminal Appeal Act 1968 governing appeals against sentence.

Section 13 of the Powers of Criminal Courts Act, which is an early rehabilitative measure that first saw the light of day in the Criminal Justice Act 1948, provides that a conviction which results in a probation order or an order for discharge: shall be deemed not to be a conviction for any purpose other than the purpose of the proceedings in which the order is made.

There is a saving in Section 13 (4)(a) which permits the offender to appeal against his conviction, but there is no comparable saving for an appeal against sentence.

Under Sections 9 and 10 of the Criminal Appeal Act 1968, which provide the right of appeal to the Court of Appeal against sentence, the right is given only to persons who have been "convicted". Since by virtue of Section 13 of the 1973 Act, offenders given a probation order or order for discharge are deemed not to have been convicted for the purpose of subsequent proceedings, the Court of Appeal has interpreted this to mean that it has no jurisdiction to hear an appeal against sentence.

An unintended side effect of these provisions is to exclude any right of appeal against ancillary orders contingent on a conviction for which a probation order or order for discharge is made, for example, a compensation order. I say "unintended" because since the right of appeal against a compensation order exists when it is combined with other, more severe, sentences, it is clearly illogical that it should disappear because the offence or the offender's circumstances were such as to merit more lenient treatment. Such orders can represent a substantial penalty and the Government believe it would now be right to correct this anomaly, and to do so in respect of cases tried summarily as well as those tried on indictment, as it appears similar problems exist in relation to appeals to the Crown Court against sentences imposed by magistrates' courts.

In deciding to provide a right of appeal against ancillary orders imposed in conjunction with a probation order or order for discharge, the Government have further come to the view that there is no justification for denying a right of appeal against a probation order or order for discharge. The traditional argument against allowing a right of appeal against a probation order is that it is made with the offender's consent. I would suggest that this argument may be less than wholly persuasive. The protection which the requirement of consent can give the offender should not be exaggerated. He gives it knowing that refusal would probably result in a more severe disposal. There may subsequently seem to be good justification for appealing against the order which he has consented to—for example, if he comes to realise that it contains stringent conditions with which he cannot comply.

I would remind noble Lords that a community service order which also requires the offender's consent, is appealable. The considerations in relation to orders for conditional discharge are somewhat different, but here too there may be special features in the case which justify an appeal. There have, in fact, been one or two occasions over the years on which offenders have sought to bring such appeals before the Court of Appeal. These amendments will therefore, if accepted, permit an appeal in future against a probation order or an order for discharge, whether or not this is combined with an ancillary order. Such appeals will, of course, be likely to be very rare.

As may be known to your Lordships, there are in existence provisions whereby application can be made, either by the probationer or by the probation officer, for a probation order to be discharged or amended or substituted by an order for conditional discharge. It would be inappropriate to allow such an application to be considered while an appeal against the making of the order itself is pending, and amendments are proposed to Section 11 of the Powers of Criminal Courts Act 1973 and to Schedule 1 to that Act to ensure that this will not happen. The amendments to Schedules 13 and 15 to the Bill are purely consequential.

We believe that these amendments will achieve a welcome and useful clarification of the powers of criminal courts to deal with appeals, albeit in a very limited area. I may say that the Lord Chief Justice is known to be in favour of clarifying the Court of Appeal's jurisdiction in this regard. I therefore commend these amendments to your Lordships and I very much hope that you will agree to them. I beg to move.

Lord Mishcon

I can deal with these amendments in one sentence—they are very sensible.

On Question, amendment agreed to.

1.49 p.m.

Baroness Birk moved Amendment No. 150: After Clause 49, insert the following new clause:

("Maximum period of probation.

. In section 2(1) of the Powers of Criminal Courts Act 1973, the words ("three years") shall be omitted and the words ("two years") shall be inserted.").

The noble Baroness said: I beg to move Amendment No. 150. This amendment is to reduce the maximum period for which a person can be put on probation from three years to two years. It has been very strongly supported by the probation officers. Although it is true that there is a trend towards shorter periods of probation, nevertheless in 1980 just over 6 per cent. of the probation orders made that year were made for something in the region of three years. The courts have been prepared to move towards shorter periods of probation and these trends have found expression in legislation.

When it comes to probation—and I shall be as quick as I can—the probation supervision should be purposeful and aim to achieve identifiable goals within a reasonable time space. Most probation officers are agreed that the first few months of a probation order are the most productive period. In most cases, any beneficial effect will be realised within that period, when one hopes that a good relationship is formulated and continues for the rest of the probation period.

Longer orders encourage a less positive orientation and may sometimes demoralise the probationer. I might add here that, in discussing this yesterday morning at a probation case committee in the court where I sit, the probation officers put forward the view that, so far as they are concerned, very often when they are faced with a three-year probation order they also feel that it will be almost a life sentence—as, indeed, does the probationer.

It is very much better for people, particularly the young, to see an end in view. When they are told that it is to be three years, many of them receive it rather badly because it seems to them that it will go on for ever. This is a very bad start to their period of probation and can, in fact, spoil it right from the beginning.

I think that it should also be remembered that offenders placed on probation remain liable throughout the duration of the order to be sentenced for the original offence should they reoffend or breach the order. At present this period of jeopardy can extend to three years. The longest period for which a court can suspend a sentence of imprisonment is two years. It seems unfair, anomalous and even unjust that a person placed on probation may face a longer period at risk than a person subject to a suspended sentence. When this amendment was discussed during the Committee stage in another place, the Minister responsible, Mr. Mayhew, argued that he did not want to restrict the powers of the courts and that longer orders might sometimes be used in circumstances where the court would not be prepared to make a two-year probation order. This very seldom seems to be the case now, but one wants to prevent the odd court making a longer order, which it may think would be beneficial but which, in fact, practice and experience have shown overwhelmingly is not so. Even with two-year orders the probation officers come before the probation case committees very often to have the orders discharged earlier.

When he was speaking in another place, the Minister accepted that a trend was apparent and he said that, if it continued, there would be a case for bringing the law into line with sentencing practice. I am arguing again that it should be brought into line with sentencing practice in the Bill that we are now discussing.

There is one further and, I think, very important practical point. All the time that we are asking for more to be done, especially in the non-custodial field, we are, quite rightly, told about the problem of resources, the pressures on the probation service and the need for more people. We heard this when we were discussing the amendments on the parole system yesterday. If the maximum probation order should be for two years—and it seems to be widely accepted— it seems quite wrong to tie up a number of probation officers unnecessarily in carrying out a further year's order, which has been shown to be of no use to the probationer and an added burden as well as becoming rather tedious, which is bad for the relationship with the probation officer as well. I beg to move.

Lord Hunt

I rise very briefly to add to what the noble Baroness has said, with all of which I totally agree. In general, the shorter the probation order, the more likely it is that the person serving that order will, of his or her own accord, wish to continue his or her contact with the probation officer on a voluntary basis—what is called aftercare. Conversely, the longer the order, the less likely is it that that kind of relationship will grow up. From my connection with the probation service, I certainly think that the more people who still need to be befriended and counselled on a voluntary basis, the better.

Lord Sandys

The Government have taken particular note of this amendment, which, as the noble Baroness so rightly said, was moved in precisely similar terms in another place on 30th March, 1982, and I am holding the proceedings in my hand at the moment.

As the noble Baroness has said, this amendment would reduce the statutory maximum length of probation orders from three years to two. I am sure that there is general agreement that probation orders should run no longer than is necessary for offenders to gain any benefit that they may obtain from supervision. Here the Government would entirely agree with both the noble Baroness and the noble Lord, Lord Hunt. To that extent, I am in sympathy with the intention behind the amendment. At the same time we do not wish to do anything which might make the probation order a less attractive disposal to the courts. What concerns me about this amendment is that there are a significant number of cases where the courts might turn to a custodial sentence if the proposal were to be accepted. For that reason, I cannot agree that the maximum length should be reduced.

It is perfectly true that the number of orders made for a term longer than two years has decreased steadily over the years. Eight thousand seven hundred persons were given orders of this length in 1971, compared with just over 2,100 in 1980. This fact was referred to and commented upon in proceedings in another place. There has also been a proportionate decline in the use of longer orders. In 1971 nearly 27 per cent. of persons given orders were placed on probation for more than two years, compared with only just over 6 per cent. in 1980. I think that these figures demonstrate a growing awareness on the part of the courts and the probation service that a short or medium length order can often be just effective as a long one.

But, despite this trend, the fact remains that the courts still find the three-year order a useful option in certain areas. It would be contrary to our whole approach in this Bill to limit the flexibility of the courts by depriving them of a disposal which they find helpful to deal with certain difficult cases. We must also consider how the 2,100 offenders who in 1980 were put on probation for more than two years would have been dealt with if the courts had been restricted to making two-year orders only. It would be rash to assume that they would all have been given shorter orders. We cannot rule out the possibility that some of them might have received custodial sentences. That would have been a highly regrettable consequence.

So I think that the statutory framework of the probation order should remain as wide and as flexible as possible. It should be remembered that within this framework there are arrangements designed to ensure that probation orders are not continued for longer than they need to be. The great majority of orders are made following a favourable assessment in a social inquiry report prepared by a probation officer. In 1974, the Home Office, with the support of the then Lord Chief Justice, Lord Widgery, encouraged probation officers to suggest a specific term for an order when offering advice to the courts on the suitability of an offender for probation. This advice still stands, and so if a probation officer considers that a short period of probation will suffice in a particular case, he is quite free to say so.

It is also open to probation officers or probationers themselves to apply to the courts to have orders discharged early, or replaced by a conditional discharge, if they believe that the order has achieved its purpose within the original term. In fact, about one-fifth of the three-year orders which terminated in 1980 were either discharged because the probationer had made good progress, or because the court substituted a conditional discharge. Probation officers are encouraged to review the progress of orders regularly, particularly the longer ones. So there is every opportunity for probation orders to be terminated when they have served their purpose.

The noble Baroness referred to the question of staffing. From my inquiries, I understand that, given that relatively few three-year orders are made, the extra load is slight. The trend towards shorter orders may well continue and eventually courts may cease altogether to make orders for longer than two years. If that were to happen, there would perhaps be a case for bringing the law into line with sentencing practice. A future Home Secretary could do that by exercising the powers conferred on him by the Powers of Criminal Courts Act 1973 to vary the statutory maximum and minimum length of probation orders. That would be subject to affirmative resolution of Parliament. I am certain we have not reached that point yet. The courts still find the three-year order a useful option in a significant number of cases, and we should not take it from them. I therefore ask the Committee to reject the amendment.

Baroness Wootton of Abinger

The Minister's extremely complicated explanation seemed to have two halves which were in direct conflict with one another. All the evidence is that the courts like the two-year order and that they increasingly like making two-year orders. Occassionally they make three-year orders, but, as time has gone by, it has looked as if they are becoming obsolete. The noble Lord there makes the extraordinary assumption that if they could not make three-year orders, then, instead of accelerating two-year orders, they would be caused to think of custodial sentences instead. There is no evidence whatever for that and it is an unrealistic assumption to make. As the trend is towards two-year orders, such orders should be the maximum now.

Lord Harris of Greenwich

I agree with the noble Baroness, Lady Wootton. To be blunt, I have heard the argument used by the Minister for a long time, even before he was presented with his brief, and it does not sound any better now than when I first heard it. I tried to make this change when I was a Minister at the Home Office but did not succeed because of opposition from some of the interested parties who were consulted, through certainly not the probation service.

The point which the Minister does not make any allowance for is that a high proportion of the most experienced people in the probation service are firmly opposed to orders as long as three years. With great respect to the noble Lord, Lord Sandys—and I am glad that the noble Lord, Lord Elton, is now with us, given the fact that I believe he has direct responsibility for the probation service—he really must make up his mind which leg of the argument he wishes to use. Either this is significant—and the noble Lord said that a significant number of orders were being made—or it is not. But almost immediately he said that it seemed to have no resource implications at all. That was a complicated and difficult matter to accept.

I repeat, I am glad the noble Lord, Lord Elton, is present, because I can refresh his memory by referring to the discussion we were having last night on the question of reducing the parole threshold to six months. One of the issues raised then by Lord Elton was the resource implications for the probation service. I must tell him bluntly that I and others will not be persuaded by arguments about the resource implications regarding the probation service when it comes to reducing the parole threshold to six months, and still maintaining that it is necessary to maintain three-year probation orders in the face of virtually unanimous opinion from those most experienced in this field that it plays very little role in terms of deterring those concerned from committing offences again. There is very little evidence to that effect. We managed to reduce probation orders from a minimum of 12 months to six months, and I at that time tried to bring down the three years to two years, though unsuccessfully.

I hope the Government will look at the matter again between now and Report, because there are clear resource implications here, and I repeat that, if noble Lords opposite propose to argue that they cannot take action as speedily as they would otherwise wish to reduce the parole threshold, with the very substantial implication that has of reducing prison numbers very speedily indeed, at the same time as accepting the resource implications so far as maintaining three-year probation orders are concerned, some of us will be extremely dissatisfied.

Baroness Birk

I am grateful for the support the amendment has received. I, too, found the Minister's reply disappointing; I would, with respect, call part of it absolute nonsense; when a court sits and decides what it should do with regard to an offender, it decides whether it should be a fine, probation or whatever. Even among ourselves at that stage, we do not say that, if it is to be a three-year order, we will put the offender on probation. Things do not work that way. The noble Lord also said that in their reports—or they may be asked to include details in their report—probation officers recommended periods for probation orders. Would the Minister let me know—he is probably unable to do so now; perhaps he will write to me in good time for Report stage—what evidence there is (in how many reports have there been such recommendations) of recommendations of three-year orders being given? Nor did the noble Lord answer any of the points about the views of, and the effect on, probation officers, and the whole question of resources; I entirely agree there with the noble Lord, Lord Harris. That matter was just swept away. No real evidence has been adduced to support what I can only call the Government's obstinate and obsolete line on this matter. However, in view of the hour and the scarcity of people in the Committee today—

Lord Harris of Greenwich

Before the noble Baroness goes further, may I ask the noble Lord, Lord Elton, in view of the number of appeals that have been made on this subject, if he would at least agree to look at the matter again before Report, of course without giving a final commitment?

Lord Elton

I try to make it a rule not to intervene in debates of which I have heard rather less than 50 per cent, I could only take the noble Lord's points out of context, and I do not think that would be helpful. I will look at what he said, but, not having heard the rest of the debate, I could not say what we might feel able to do as a result of what has been said. But if the noble Baroness, Lady Birk, feels able to withdraw the amendment at this stage, I shall of course read the Official Report of what has taken place, and, if it then appears appropriate for me to do anything further, I shall. However, I cannot undertake to do so.

Baroness Birk

There is no point at this time on a Friday afternoon pursuing a matter of this kind. We shall certainly return to the subject on Report, when, I am sure, there will be even greater support than there has been today, if only because there will be more noble Lords present. I advise the Minister to reconsider the matter very carefully, because a very good case for what we propose has been made out. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 150A and 105B not moved.]

Clauses 50 and 51 agreed to.

Schedule 12 [Community service orders]:

2.8 p.m.

Lord Mishcon moved Amendment No. 151: Page 83, line 18, after ("officer") insert ("or a social worker of a local authority social services department").

The noble Lord said: I can be very brief. We are considering here the question of a community service order, as well as the question of a report from a probation officer being available to the court when such an order is made. I hope that it is absolutely obvious to your Lordships' Committee that there could be the alternative situation of a social worker attached to the local authority who knows all about the question of community services and the services that are available. He might also know how the delinquent concerned has fared under a previous community service order. I hope that the amendment is so reasonable that a short speech will procure its acceptance. I beg to move.

Lord Donaldson of Kingsbridge

May I say that 1, too, hope so.

Lord Sandys

Since the noble Lord, Lord Mischon, has been so commendably brief, perhaps in my remarks I may be able to emulate his brevity. I believe that the professional interests to which he has referred should be reconciled, and although the amendment as it stands is not acceptable, it holds out the possibility of recognising a contribution from social workers as well as from probation officers. That is the thrust of the amendment. We should like to consider this matter further and see whether it is possible to achieve what the amendment seeks to do, and at the same time to recognise the necessary contribution from the probation service. I hope that what I have said will be sufficient to enable the amendment to be withdrawn.

Lord Mishcon

I am most grateful to the Minister for what he has said, and I look forward with great interest to seeing moved by the Government an amendment along these lines, so that we can consider it at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sandys: moved Amendment No. 152: Page 86, line 39, leave out from beginning to ("it") in line 48.

The noble Lord said: With the permission of your Lordships' Committee, in addressing myself to Amendment No. 152 I should like at the same time to speak to Amendments Nos. 153 to 156. These amendments concern the arrangements in Northern Ireland when community service orders are transferred there from England and Wales. The Probation Board for Northern Ireland will henceforth have the duty of securing that arrangements exist for work to be done under such orders throughout Northern Ireland, and it is also responsible for selecting a probation officer charged with carrying out the duties of the relevant officer. The amendments give effect to the necessary changes in the schedule. I beg to move.

The Deputy Chairman of Committees

In putting the Question on Amendment No. 152, I should like to draw your Lordships' Committee's attention to the fact that in Amendment No. 156, relating to page 87, the reference should be to line 28, not line 29, which is printed on the Marshalled List.

On Question, amendment agreed to.

Lord Sandys moved Amendments Nos, 153 to 156:

Page 86, line 49, leave out from ("made") to end of line 50 and insert ("by the Probation Board for Northern Ireland (in this section referred to as" the Probation Board") for him to perform work under the order.".").

Page 87, leave out lines 8 to 15.

Page 87, line 17, leave out from ("made") to end of line 18 and insert ("by the Probation Board for him to perform work under the order,").

Page 87, line 28, leave out ("Secretary of State to select or assign") and insert ("Probation Board to select").

On Question, amendments agreed to.

Lord Sandys moved Amendment No. 157:

Page 91, leave out lines 16 to 41 and insert— ("(a) the said section 1 shall have effect as if, in subsection (2) thereof—

  1. (i) paragraph (b) were omitted;
  2. (ii) for paragraph (d) there were substituted the following paragraph—
(b) the order shall specify that the unpaid work required to be performed by the order shall be performed under the provision made by the Probation Board for Northern Ireland and referred to in section 1(2)(d) of this Act as substituted by paragraph (a) above.").

The noble Lord said: In speaking to Amendment No. 157 I hope that the Committee will permit me to address myself at the same time to Amendments Nos. 158, 159, 160 and 161. Part III of Schedule 12 to the Bill deals with arrangements for the enforcement in England, Wales and Northern Ireland of community service orders made by a Scottish court, and with arrangements for enforcement in Scotland of community service orders made by courts in other countries. Paragraph 7 of Schedule 12 inserts Section 6A into the Community Service by Offenders (Scotland) Act 1978 to deal with community service orders relating to persons resident in Northern Ireland.

The amendments, which are entirely of a technical nature, result from the making of the Probation Board (Northern Ireland) Order 1982. The order establishes the Probation Board for Northern Ireland, which has the duty of securing that arrangements be made for persons aged 17 and over to perform work under a system of community service orders throughout Northern Ireland, and which has responsibility for the selection of persons who supervise offenders during the period of their community service. As a result, a Scottish court, when considering the making of an order in respect of such offenders who reside or will reside in Northern Ireland when the order comes into force, will be entitled to assume the existence of such a system and will not need to be notified formally of this by the Secretary of State (as is at present provided by the new Section 6A, which paragraph 7 inserts into the Community Service by Offenders (Scotland) Act 1978).

Amendment is therefore necessary of paragraph 7 of Schedule 12 to the Bill, first, to remove the references in the new Section 6A of the 1978 Act to that notification procedure, and, secondly, to refer to the Probation Board instead of the Secretary of State in relation to the selection of persons who have functions to discharge in respect of offenders who are subject to community service orders. Parallel amendments are being made to the equivalent provisions for England and Wales in Schedule 12 to the Bill. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendments Nos. 158 to 161:

Page 91, line 47, leave out from beginning to ("and") in line 4 on page 92.

Page 92, line 6, leave out ("under those arrangements") and insert ("by the Probation Board for Northern Ireland").

Page 92, line 11, leave out from ("the") to ("of") in line 12 and insert ("provision made by the Probation Board for Northern Ireland and referred to in paragraph (c)").

Page 92, line 20, leave out ("Secretary of State to select or appoint") and insert ("Probation Board for Northern Ireland to select").

On Question, amendments agreed to.

Schedule 12, as amended, agreed to.

Clauses 52 and 53 agreed to.

Baroness Birk moved Amendment No. 162: After Clause 53, insert the following new clause:

("Abolition of imprisonment for exposure of person.

.—(1) The Vagrancy Act 1824 shall have effect subject to subsection (2) below.

(2) No court shall pass a sentence of imprisonment on any person convicted of wilfully, openly, lewdly and obscenely exposing his person with intent to insult any female.").

The noble Baroness said: In moving this amendment I think I should point out rightaway that the rather scarlet language in which the amendment is drafted is not my wording, but the reference is Section 4 of the Vagrancy Act 1824 as amended by the Criminal Justice Act 1925, Section 42. I would have made it very much shorter if I had been drafting it myself.

The purpose of this amendment is to make this offence non-imprisonable, in the same way as soliciting, and other offences—for instance, sleeping rough and begging. Many of them have now been made non-imprisonable offences by this Bill, because, really, I think they should be categorised as social nuisances rather than criminal offences. Certainly imprisonment is a particularly inappropriate method of dealing with them. I think many magistrates would agree with this; and certainly the National Association of Probation Officers also feels very strongly about this particular offence.

The people who are brought before the court for committing such an offence are usually, on the whole, very sad or inadequate people, and to send them to prison would seem to be quite ridiculous. Further, it would add, even in a small way, to the overcrowding in prisons, and would be of no help to them at all. The most recently published figures on imprisonment for indecent exposure are for 1979, when there were 63 immediate custodial sentences for this offence plus 89 suspended sentences, some of which, presumably, were later activated. If the Minister says in reply, or if anybody says, that those 63 immediate custodial sentences were probably given to people who had a record of such offences, then I would reply that sending compulsive offenders of this sort to prison is really no answer.

What people who have committed these offences need is some help or some treatment; and, of course, this is what one is trying to provide for here, which is the trend today. The emotional and psychological factors which may bring a person to commit an act of indecent exposure are, as I have said, unlikely to be affected by punishment through prison, and the deterrent effect is usually the public embarrassment of arrest and trial. I think that acts as sharply as, and often more sharply than, the unnecessary and, in most cases, as it would be, cruel act of sending them to prison.

It is obviously not a very pleasant thing for the person (the victim, if you like) who witnesses this offence, but we are a very much more sexually sophisticated and sexually better educated society—certainly the young people are—and although they may dislike this I do not think the tremendous shock and embarrassment is as great as perhaps it might have been years ago. One does not want to encourage this kind of behaviour in any way or minimise the effect it has on some people. But to send the offender to prison seems to be quite wrong, to be inappropriate and also ineffective.

Lord Donaldson of Kingsbridge

May I support this very quickly. In my opinion, anybody who thinks there is any point in sending to prison somebody whose offence is sexual exposure needs his head examined.

Baroness Masham of Ilton

This amendment fails to say where these disgusting but pathetic people should be treated. I agree that prison is not the place for them, but in protection of young girls and boys who may be greatly frightened and repelled they should go somewhere. We may live in a permissive society but when an exposure happens to unsuspecting young people, often an innocent young girl, who knows what the long-lasting, damaging effects on her might be. The amendment should say where these people should go to be treated, Otherwise, what would happen if the amendment were accepted?

Lord Monson

I am sorry to disagree with the noble Baroness, Lady Birk, but I am afraid that I must do so. Although there is no physical injury caused, indecent exposure is surely in essence a form of assault, assault which is almost invariably carried out on a younger and certainly weaker person and therefore it is in no way comparable to a genuinely minor offence like soliciting which, rightly in my view, is no longer to be punishable by a term of imprisonment. I put it to the noble Lord, Lord Donaldson, and to the noble Baroness that they have ignored the factor of free will. People may find it difficult to exercise self control but it is not beyond the bounds of possibility.

Baroness Wootton of Abinger

I should like briefly to support this amendment. We are making a mountain out of a molehill, a criminal offence, a prisonable offence, out of a social nuisance.

Lord Elton

This offence was among the vagrancy offences examined by the Working Party on Vagrancy and Street Offences during its review of the Vagrancy Act. If the Government's flexibility in this field is open to question, I would refer your Lordships to Clause 53 which we have just put in the Bill which met the recommendation of taking vagrancy out. In its report published in 1976 the working party recommended the repeal of the existing offence of indecent exposure in Section 4 of the Vagrancy Act and its replacement by a new offence more appropriately worded to apply to the conduct aimed at. In view of the offence and distress this form of conduct can cause, and to which the noble Lord, Lord Monson, and the noble Baroness, Lady Masham, alluded the working party took the view that the maximum sentence available should be three months' imprisonment.

As is generally accepted—and the working party recognised—in many cases indecent exposure is a symptom of sexual maladjustment, if not of sexual disorder, and ideally should be treated as such. For many offenders, particularly first offenders, the mere fact of an arrest or a court appearance may well be sufficient to prevent any recurrence of the offence by reason of the shock it provides. It is not surprising therefore, that, in the vast majority of cases, courts do not consider it necessary to impose a custodial sentence. But it also has to be recognised that in some cases indecent exposure can be very persistent, and can cause considerable offence and distress. It can be wholly intentional with no suggestion that the offender's responsibility is impaired. There is also evidence that some of the men who commit this offence are guilty of indecent assaults in conjunction with other non-sexual offences. I regret that I am not in a position to give your Lordships any figures on the numbers who fall into these categories. That would involve research into personal records of prisoners and court papers; but it would be very dangerous to assume that indecent exposure is always a relatively harmless offence or that it has little effect on the victim.

I have considerable sympathy with the motives of the noble Lords who put down this amendment. No one, least of all the Government, wants to see offenders sent to prison if this can be avoided without putting the public at risk. The great majority who commit this offence clearly do not fall into that category, and the courts find it possible to deal with them without using imprisonment. There were 2,153 convictions for this offence last year but only 64 sentences of imprisonment. The next thing down from that is a suspended sentence and in 1980, which is the last year for which I have the numbers of suspended sentences, the number suspended was 68.

It would be very unwise to remove this provision unless we are certain that it will leave no gap in the courts' ability to deal with those convicted of this offence in the most appropriate way. The noble Baroness may say that it is not appropriate to detain offenders but if they are not susceptible of treatment they cannot be left to have the really very damaging effects on young people in particular that they can have, unrestrained. I believe your Lordships would be wise to resist this amendment.

Lord Donaldson of Kingsbridge

What does the noble Lord the Minister mean by saying offenders are not susceptible of treatment? Obviously if they are given treatment and offend again they may need some kind of confinement in a mental health place. The one place where they should not be is in prison.

Lord Elton

I spoke too quickly. I intended to say, "if they are not susceptible of treatment" then they must be detained by some means. Of course, if someone is mentally ill and is an offender there comes a stage when he is detainable under the Mental Health Act if he is treatable. That is the test and we have argued that up and down and back and forth across this House for a long time under the Mental Health (Amend- ment) Bill which is to come back to us shortly from another place. All I am saying is that there has to be somewhere for such cases, and if the person is not treatable that place cannot in law be a hospital and the court must have somewhere to detain the persistent and sometimes malicious and perfectly self-controlled offender.

Baroness Birk

I do not find the arguments against this amendment very convincing. In answer to the noble Baroness, Lady Masham, I would say of course there are people who, as the noble Lord, Lord Donaldson of Kingsbridge, has pointed out, do need treatment. Many do and some of them should be given some form of hospital or residential treatment; but it is not going to help them or the people whom they offend by their acts to send them to prison. This is the whole point of the amendment. There is no need to have given alternatives in this amendment because the alternatives are there. The alternatives are there before the court and they do not have to be spelled out in this amendment. This amendment seeks to take away one of the alternatives, which is sending these people to prison.

The noble Lord, Lord Monson, spoke about this being a form of assault, but it is not. In talking about these things we must use terms very accurately and in their legal sense. It is not a form of assault. One can say that it is highly insulting and may be highly upsetting, but it is not a form of assault. If, as the Minister has said, it is sometimes tied up with an indecent assault, then of course it would be dealt with as an indecent assault, which is something quite different and is not the subject of this amendment.

I find it very sad when we are, as we feel, making progress not necessarily, unfortunately, in practical terms but in the knowledge that we are getting on penal reform, on offences committed by people and on human behaviour, and when we have all this information building up year after year, that we should not take notice of it in practical terms and translate it into ways of dealing with offenders in offences like this, which are —and I say it again—social offences, not criminal offences and are compulsive.

When the Minister said that there are people who know perfectly well what they are doing and do this, I would say then one must ask the question: why does a normal man go round behaving like this? One cannot say he does it because he is normal and it is part of his normal behaviour. It is not. It is not an offence like burglary where he is going to gain something from it. In doing this he is putting himself in a position where, if he is aware of it, he knows he is going to get into trouble. It is usually something which is compulsive or, as in many cases in my court, when you have reports on these people you find that they have been going through a very difficult period which has affected them badly psychologically and it has resulted in this. Therefore, one needs to treat these people. However, to send them to prison—apart from the old argument about resources and it not being right or necessary—I think is cruel. I beg leave to withdraw the amendment but will probably return to it on Report.

Amendment, by leave, withdrawn.

2.31 p.m.

Lord Avebury moved Amendment No. 162A: After Clause 53, insert the following new clause:

("Abolition of imprisonment of drunkenness offenders for fine default.

. A magistrates' court shall not issue a warrant committing a person convicted of drunkenness to prison for a default in paying any sum adjudged to be paid by the conviction.").

The noble Lord said: I was very glad to hear the Minister say that no one wants to see offenders sent to prison if this can be avoided. We move on here to a group of offenders where not only can it be avoided if we take the necessary steps but for some time recommendations have been accepted by the Government which will lead to the abolition of imprisonment of this group of people and their treatment in another, more humane way. We are not talking about small groups of people. In 1980 as many as 2,530 drunkenness offenders were received into prison following convictions for simple drunkenness or for being drunk and disorderly, in spite of the fact that the offences themselves are non-imprisonable and those who were sent to prison invariably went there because they had not paid the fine which had been imposed.

The report of the May inquiry into the United Kingdom prison services of 1979 recommended that prison should be avoided wherever possible for drunkenness. This recommendation had the strong support among all those working in all parts of the criminal justice system. Going back to 1971, the Home Office working party on habitual drunken offenders recommended: Persons who under present arrangements will be arrested for being drunk in public should be taken by the police to special detoxification centres and there detained while they are dried out and any necessary medical and social investigations carried out. These detoxification centres were to be supported by a network of other services, including hostels, to which those with the motivation to achieve sobriety could be referred".

Unfortunately, to date only two of these detoxification centres have been established, one in Leeds and the other in Manchester. There is a third centre run by the Salvation Army in Tower Hamlets, but they do not accept referrals from the police, so it does not constitute a direct alternative to the criminal justice system. In addition, the Government have financed an experimental scheme in Birmingham which provides over night accommodation for drunks whom the police take there instead of to the police station. Taking the progress over the whole of this decade since the Home Office working party reported, what we find in England and Wales is that there are only three small-scale experimental schemes for diverting drunkenness offenders from the courts.

Alcoholism is a relaxing condition and detoxification centres are not the final answer. They do not achieve miracle cures. For some habitual drunkenness offenders they could become another revolving door, replacing the traditional one of repeated passage to the police and the prison cell. Where this is the case, they at least provide a more humane revolving door than the penal system. Experience has shown that some habitual drunken offenders succeed in achieving permanent sobriety through the operation of a detoxification centre and its supporting facilities—something that they would be very unlikely to manage through repeated sentences of imprisonment.

It is true that the money involved the establishment of these centres is considerable but so are the costs of processing drunkenness offenders through the police cells, courts and the prisons. The Leeds police have estimated that each person brought to the city's detoxification centre saves them 12 hours of police time. This is estimated to cost £20 an hour. Of course, the time of the courts is also saved.

In 1979 in Leeds only 243 homeless men were arrested for drunkenness as compared with 1,098 in 1974. In relation to the experience of Leeds, I should like also to refer to the Home Office document, Dealing With the Petty Persistent Offender, which was an account of Home Office Research Unit studies and referred particularly to the work of Corden, which led to the Socially Isolated Prisoners' Project in the West Yorkshire area, aimed at providing a service for those men who were released into Leeds from Armley and Rudgate prisons and who were not subject to statutory or voluntary supervision by a probation officer. This is the kind of ancillary service which must accompany the establishment of the detoxification centres, if we are to provide a valid alternative to imprisonment for such people.

The cost of keeping people in a local prison, though less than for other forms of establishment, at the moment is something like £160 a week. Therefore, the total cost of arresting and convicting a drunkenness offender and committing him to prison for two weeks is something like £600. With the money that we saved from that, we could have established a network of detoxification centres and ancillary facilities. I hope that if your Lordships pass this amendment it will provide a powerful incentive to the Government to get on with the job.

Lord Donaldson of Kingsbridge

I have been chairman for the last year of a body which calls itself Out of Court, which consists of all people concerned with the problems of drunkenness, including the police. We have just completed a unanimous report which very shortly we are sending to the Home Secretary. Included in it are many of the facts and figures quoted by the noble Lord. They are very powerful, and I hope that when the Home Secretary sees them something will be done. I support this amendment, not in any expectation of its being carried, but I think that by the time the Home Secretary sees our paper he may initiate some constructive work in this direction.

Lord Elton

I think your Lordships will be agreed that imprisonment is not in general an appropriate disposal for cases of drunkenness. There are some drunkenness offences for which imprisonment is still available—being drunk in charge of a child or being drunk in charge of a loaded firearm, for example. These are serious offences, for which it is right that the court should have the option of imprisonment; but in general drunkenness offences do not in themselves merit imprisonment, and indeed imprisonment is not available as a penalty either for simple drunkenness or for being drunk and disorderly.

However, I think we must accept that public drunkenness, particularly when combined with disorderly conduct, can created considerable alarm and inconvenience. Whatever the background of the offender, the police and the courts must be able to take some action to deal with this problem. At present they are only too often forced to have recourse to the fine as a sanction, when other forms of disposal are inappropriate or simply not available. And of course there are cases, and no doubt there will always be cases, where a fine is the most appropriate penalty. The problem that this amendment recognises is that many drunkenness offenders who receive a fine end up in prison because they have failed to pay the fine imposed. At any one time there are about 60 or 70 such offenders in prison, though the throughput is fairly large because the sentences are usually very short.

The noble Lord, Lord Avebury, referred to detoxification centres—I hope I do not sound as though I needed to attend one myself: If I do, it is fatigue and not inebriation—and I will just say a word about these. The working party on habitual drunken offenders recommended in 1971 the establishment of experimental centres to test whether such offenders could benefit from detoxification as part of the treatment and rehabilitation services, and also to see whether such a sentence could function as a satisfactory alternative to penal measures.

Two centres were established in 1976, funded mainly by the Department of Health and Social Security and they were established in Leeds and Manchester—the noble Lord referred to Leeds a moment or two ago. Under Section 34 of the Criminal Justice Act 1973, as amended, the police are able to take a person who has committed a drunkenness offence to an approved centre, as an alternative to arrest and prosecution. The two detoxification centres were approved centres for this purpose. The Department of Health and Social Security initial funding for the centres was set at three years and was extended for a further six months. One of the two centres in Manchester is not now in operation. The Department of Health and Social Security are currently carrying on a programme of research to assess the effectiveness of the two centres, and the results of this research will be available later this year.

Your Lordships are probably also aware of the experimental wet shelters, one of which was established in Birmingham and has been operational since July last year. That has a total of 10 beds and, so far, has handled well over 200 clients. Police records seem to indicate that the availability of the shelter has reduced the number of arrests and proceedings for drunkenness in the City, particularly in the central division area where the shelter is located. Research work is in hand to monitor the effectiveness of the shelter, and we are seeking to establish another shelter elsewhere. I put that in parenthesis, because I think that the noble Lord, Lord Avebury, and other noble Lords will be interested to hear it.

Reverting to the question of numbers in prison, the other figure to which I need to draw your Lordships' attention is that in 1980 over 100,000 persons were fined for offences of drunkenness, and yet, as I said, at one time only 60 or 70 are imprisoned. This gives an indication of the way we have swung away from imprisonment. If the fine is to remain effective, there has to be something done if the fine is not paid. That view is shared by the NACRO Working Party on Fine Default, so ably chaired by Lady Howe. It is a principle of wider application than is called into question by this amendment; but it is hard to argue that all drunkenness offenders are so different from all other offenders that they, alone, should be excused imprisonment in the case of default. While that is the case, to take legislative action of this kind would be to restrict undesirably the motivation of the courts to deal with a large number of cases brought before them. That would be unacceptable. But I can assure the noble Lord, Lord Donaldson, that the report which he is submitting to my right honourable friend will be read with the greatest of interest by him, and I suspect me, and this may well be the sort of background that we ought to have for the reconsideration of this issue.

Lord Avebury

It really is depressing the way every single suggestion that has been made during the course of this Committee stage for reducing the prison population has been rejected, for some reason or other, by Ministers. Even when we come down to this one, which I should have thought everybody would have agreed with, the noble Lord, Lord Elton, has reasons for maintaining prison in the case of defaulters, largely on the Civil Service-like ground that, if you abolish imprisonment for default in the case of drunkenness offenders, you will be creating an anomaly because people could still sent be to prison for default on other types of fines. All right, the Government could solve that one very easily, if they would agree to extend this amendment and abolish imprisonment for default of fines altogether, which I would warmly endorse.

But the problem is not such a tiny one as the noble Lord suggests, and it is a wholly spurious comparison to set the 100,000 offenders brought before the courts in 1980, against the 60 to 70 offenders who are in prison at any one time for default of fines on this class of offence. The 60 to 70 should be compared with those convicted of drunkenness offences over the period in which they are serving their sentences, which, as the noble Lord has said, would be fairly short. Alternatively, if you want a figure to compare with the 100,000, it is the 2,530 offenders who were sent to prison during the course of 1980 for default on fines imposed for drunkenness.

But I dare say that we are not going to get any further with that this afternoon, and I am going to be realistic about it. I would certainly not like to have to wait until the report of the noble Lord, Lord Donaldson, has been submitted and fully considered by the DHSS and the Home Office, because I think we could wait several more years. But I shall, at least, possess myself in patience until Report stage and, in the meantime, I beg leave to withdraw the amendment.

Lord Elton

At the Report stage, perhaps the noble Lord will explain how one can have a system whereby one is told, "What you have done is bad, but it is not bad enough to put you in prison, so we will make you pay a fine, and if you do not pay the fine we shall not do anything more". I brought in the reference to other cases only to ask why this privileged treatment should be given to those who default on fines.

Lord Avebury

The noble Lord invites me to upset the noble Lord, Lord Denham, and I shall not do that at this stage, I shall save my reply to that last remark for the next occasion.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

2.46 p.m.

Baroness Birk moved Amendment No. 163: After Clause 54, insert the following new clause:

("Male soliciting to be non-imprisonable.

.—(1) Section 32 of and Schedule 2 to the Sexual Offences Act 1965 shall have effect subject to subsection (2) below.

(2) No court shall pass a sentence of imprisonment on any man convicted of persistently soliciting or importuning men aged 21 or over in a public place for immoral purposes.").

The noble Baroness said: This new clause would remove the penalty of imprisonment for importuning—that is, soliciting by males. It embodies a recommendation of the Parliamentary All-Party Penal Affairs Group in its report Too Many Prisoners, published in 1980. That report recommended that soliciting by females should not be an imprisonable offence. Effect was given to this proposal by Clause 54 of the Bill. It is a welcome addition. The report also recommended that there should be similar changes to the law relating to importuning. This is not in the Bill—hence the amendment.

Some of those who commit the offence of importuning are male prostitutes, but the majority are not out for financial gain. As long go as the Wolfenden Report it was pointed out in paragraph 120 that for the most part those convicted of importuning are in no sense male prostitutes; they are simply homosexuals seeking a partner for subsequent homosexual behaviour.

During the passage of the Bill through another place the Parliamentary All-Party Penal Affairs Group brought forward an amendment to remove the penalty of imprisonment for female soliciting, and it was incorporated in the Bill. Among the arguments which proved convincing then was the argument that the imprisonment of women for soliciting is an excessively harsh punishment in relation to the offence, and that it serves no useful purpose in terms of either rehabilitation or deterrence. All these arguments, I would say, have similar force in relation to male soliciting.

A further argument was put forward, that the imprisonment of female prostitutes is actually counterproductive, since imprisoned prostitutes recruit young prisoners who have not previously been prostitutes but who become involved in prostitution on release. Having many years ago been a prison visitor, I myself saw evidence of this happening. The imprisonment of homosexuals for soliciting would, I believe, be counterproductive in other ways. Locking up a homosexual in an overcrowded male prison is really like locking up an alcoholic in a brewery.

The clause would not result in any radical change in practice, since imprisonment is rarely used for this offence. In 1980, of 1,184 men found guilty of importuning, only 16 received an immediate custodial sentence; the vast majority were fined or conditionally discharged. Nevertheless, on the basis of some form of sex equality it seems to me to be essential that, since arguments against imprisoning women for soliciting have now been accepted by Parliament, similar changes should be made in regard to male soliciting, unless Parliament considers it justifiable to mete out harsher punishment to certain offenders for a similar offence, solely on the grounds of their sexual orientation.

When this proposal was discussed in Committee in another place on 30th March, the Minister of State then said that offences of importuning can take the form of approaches to young men and that a custodial penalty may be appropriate in these cases. This point has been taken into account. Therefore, the amendment exempts from its approaches those under 21, which is the current age of consent to homosexual activities. I believe that this is extremely important. All that the amendment is asking is that it should apply to those who are over the age of 21 and that anybody who is being importuned should not be under the age of 21.

A third argument was made by the noble Lord, Lord Elton, during the Second Reading of the Bill; that it would be preferable for any decision on the availability of imprisonment for this offence to await the outcome of the Criminal Law Revision Commission's review of the law relating to prostitution and sexual offences. However, the fact that the commission is carrying out a wide-ranging review of this part of the law has, fortunately, not prevented Parliament from including a provision in the Bill to make female soliciting non-imprisonable. Therefore, it seems wrong and inequitable not to mete out the same treatment for male soliciting.

In fact, when the Bill was at Committee stage in another place the Minister of State consulted the Criminal Law Revision Commission over the proposed abolition of imprisonment for female soliciting. The majority of the commission favoured the proposed change. The Minister gave this information to the committee, which then voted overwhelmingly for the change. There does not seem to be any reason why the change proposed today should be deferred until after the commission has reported.

This may be a minor amendment in a very long Bill but it is one of great importance to many people. Also, it shows an appreciation of a different outlook on these matters today, and it is also very much fairer when, as it will, it balances the view now taken of female soliciting. I beg to move.

Lord Hunt

I believe that this amendment deserves support and I am quite sure that the noble Baroness, Lady Birk, deserves support for moving the amendment. I say "believe" because it is a golden rule in your Lordships' House not to speak on matters in which one is not personally expert. I cannot say that this is my field. The expertise, of course, lies with the police, the courts, and the probation service in particular—to say nothing of the prisons. But I support the noble Baroness in everything she said because I have very strong views—as I am sure all your Lordships do —on social equity and on not discriminating between the sexes.

The noble Baroness pointed to the pragmatic reasons for not imprisoning males guilty of this kind of offence, however distasteful it may be—and it is to all of us here—on grounds of its ineffectiveness and the corruptive influences it has in the case of females. The noble Baroness referred to her experience as a prison visitor. I also have visited most of the prisons in this country and have been made only too aware of the corruptive influences of people of either sex who have these propensities. I recall very clearly an unforgettable experience when I was addressing an audience of inmates at Holloway Prison. I was so astonished by the number of apparent fellows in the audience that I addressed the assembled company as Ladies and gentlemen". That brought the house down! That is nothing to do with this amendment, but I would just like to emphasise that in the case of male prostitutes committed to penal establishments, the corruptive influence is even greater. Indeed, I wonder how many of your Lordships are aware of the extent to which homosexual activities are commonplace, if not rife, in Her Majesty's prisons.

Lord Hutchinson of Lullington

I would very much like to support this amendment although, again, not as an expert in opportuning—nevertheless, as an expert in the sense that I have spent a lot of time in magistrates' courts on one side or the other in these cases. Surely, this is a nuisance offence, if ever there was one, and surely here at last is an amendment which could be accepted by the Government. It is the greatest and most monumental waste of time to have these vice squads in centres of high population, spending hours going round public lavatories and drilling holes in walls, hiding themselves behind tanks, and very often acting as agents provocateurs; in the end arresting these unfortunate men who are doing no more than trying to find another man with the same proclivities to achieve some form of sexual satisfaction, either there or somewhere else. They are a nuisance in public lavatories and that is all. I was very pleased to see only last week that the Manchester vice squad was disbanded by the chief constable, and I am sure that is what is happening in many centres of population in the country at this moment.

I hope the Minister will not put it forward for making a distinction between women and men here that the maximum sentence for importuning is two years whereas I think the maximum sentence for women soliciting is six months. Your Lordships may not be aware that the reason for that is that importuning for an immoral purpose under the statute originally had nothing whatsoever to do with homosexuality. It was a statute that was passed to deal with "bully boys", as they were called, who would go out in the street and try and importune men to go into brothels. That was the origin of the matter, and it gave rise to a great deal of violence of one kind or another, and so the sentence happens to be a sentence of two years. Then the police saw that this was a very good statute to deal with these unfortunate people.

As for waiting for the report of the Criminal Law Revision Committee, I hope the Minister will not put that forward as a reason for resisting this amendment. He will know very well that there was a Home Office working party on vagrancy and street offences set up in 1976 which recommended that the punishment for male soliciting should be the same as for female soliciting. Here we are in 1982 still waiting for someone to do something about that. I really would like to support this amendment and ask the Minister seriously to consider whether lie could not at least go along with the terms of this amendment.

Lord Elton

I think at the outset I should say that there may be a large number of homosexuals in prisons, but it does not follow that they are all in prison because they are homosexuals. Before I turn to the detail of the clause, it may be helpful if I give the House an indication of why the Government believe that it is right to oppose this clause here when it took an attitude of neutrality towards the amendment in another place abolishing imprisonment for soliciting by prostitutes under the Street Offences Act 1969. With one single exception, no one spoke against that amendment in Standing Committee. In the circumstances, the Government took the view that they should not stand in the way of an amendment which clearly commanded nearly unanimous support. But that is not the case with this one.

No one in Standing Committee sought to argue that the seriousness of conduct covered by that other amendment—loitering or soliciting by prostitutes—was such as to merit imprisonment of itself. Rather the justification has been that imprisonment was a necessary deterrent to a prostitute who persisted in soliciting because taken over all large numbers of women engaging in such behaviour constituted, at the time imprisonment was introduced, a considerable public nuisance. It is, I think, fair to say that street soliciting by prostitutes is no longer the problem it was, and the general view seems to be that imprisonment should accordingly cease to be available for that offence. This is a relatively minor change. The maximum penalty was only ever three months, and that only on a third conviction.

The change we are considering here is, however, much more drastic, and, as the debate in another place has indicated, it is one which evokes strongly held but opposing views. We feel that it would be wholly imprudent for any decision to be taken in relation to this offence—several Lords are waiting for me to say this and will doubtless groan, but I none the less believe it should be said—in advance of the review of the law on sexual offences being undertaken by the Criminal Law Revision Committee and the Policy Advisory Committee on Sexual Offences.

The offence is one of a man "persistently soliciting or importuning in a public place for immoral purposes". This is a very widely drawn offence; it covers more than a male homosexual soliciting a fellow homosexual with a view to the commission of a homosexual act, as the noble Baroness when she moved this amendment seemed to suggest. As a reflection of its potential seriousness, it carries the right to jury trial when it is punishable with up to two years imprisonment. It is undoubtedly true that this offence is mostly used against homosexuals merely seeking a partner whether or not there is an element of payment in the transaction. Consequently, in the majority of cases, the courts find it possible to deal with those convicted of this offence without resort to imprisonment. Most offenders are fined but there is a small number—I fully accept that it is a small number—where the courts find it necessary to impose a sentence of imprisonment.

As an example I would refer your Lordships to a case reported in 1978 of Regina v. Dodd in which a man was sentenced to imprisonment under this provision for persistently soliciting three 14-year old girls for the purpose of sexual intercourse. This example has a good deal to do with the amendment. It illustrates what I said earlier about the offence being a widely drawn one.

There is also the case where soliciting in the homosexual context can be directed towards an act which is itself illegal—for example, where one of the partners is under the legal age of consent. Then, too, it is possible to envisage circumstances where an approach even to another adult might merit imprisonment because of the form which the approach took, or the degree of persistence.

Baroness Birk

I am sorry to interrupt, but I am getting quite lost over this. It does not refer to the amendment at all. The amendment quite specifically states: any man convicted of persistently soliciting or importuning men aged 21 or over". With respect, that has nothing to do with the case which the Minister has been citing about the man and the 14-year-old girls. It has nothing to do with girls.

Lord Elton

I ask your Lordships to bear with me for a minute. There appears to be a slight discrepancy. I regret that I have advance material and what I see here renders less appropriate what I see there. Nonetheless, a good deal of what I have to say remains valid. I knew that your Lordships would groan at some stage—it came rather later than I expected. Rather than retire in complete confusion, I would say that we do have the review of the Criminal Law Revision Committee. Noble Lords knew that I would advance this reason and have tried to disarm me of it in advance by saying that I was going to use it —I am. There is also the report of the advisory committee. I do not want to detain your Lordships by trying to retrieve my position further. We are opposed to this amendment and the grounds for our opposition are good. I am prepared to elaborate them at a later stage if necessary, but I hope it will not be necessary.

Baroness Birk

I am very sorry that the Minister put forward the arguments which he did in opposing this amendment. It is very sad that this age-old prejudice and emotional approach continues when he says that this is much more drastic than the soliciting of females. The noble Lord also mentioned the small number who are imprisoned. However, that does not alter the fact that in some courts people are sent to prison on very minor offences. There is a deep built-in prejudice as regards this and unfortunately it permeates Parliament and everywhere at the moment—it is about time we broke out of it. I think that I shall return to this matter at a later stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

3.4 p.m.

Lord Wigoder moved Amendment No. 164: After Clause 54, insert the following new clause:

("Abolition of right of accused to make unsworn statement.

. In any criminal proceedings the accused shall not be entitled to make a statement without being sworn, and accordingly, if he gives evidence, he shall do so on oath and be liable to cross-examination; but this section shall not affect the right of the accused, if not represented by counsel or a solicitor, to address the court or jury otherwise than on oath on any matter on which, if he were so represented, counsel or a solicitor could address the court or jury on his behalf.").

The noble Lord said: I beg to move Amendment No. 164. Perhaps I might make it perfectly clear to the noble Lord the Minister that this is Amendment No. 164, and it is the Criminal Justice Bill that we are discussing! This amendment deals with the position that arises when a defendant comes to have the opportunity of making his defence in criminal proceedings. In that situation at the moment the defendant has a choice of three courses. In the first place he may give evidence on oath in the witness box, be cross-examined and thus, in effect, be treated as any other witness in the case. So the jury or the magistrates, as the case may be, have the chance of assessing the value and the weight of his evidence. This amendment does not affect that in any way.

The second alternative that is open to a defendant is one which is open to him only and not, I think, to a witness, and that is to remain silent; because a witness who remains silent may, in certain circumstances, be in contempt of court. But the defendant has the right—and it is a very important right—to remain silent without any inference of guilt arising in any way should he choose to take that course. I regard that as an extremely important option which should be left to a defendant, and this amendment does not affect that in any way.

There is, however, a third course open to a defendant, and that is to make an unsworn statement on the facts from the dock, in a position in which he cannot be cross-examined and his evidence, not on oath can in no way be checked or tested. This amendment simply seeks to remove that one opportunity which at the moment is available to a defendant.

It arises as a historical accident. In 1898, when the Criminal Evidence Act was passed, the defendant was given for the first time the right to give evidence on oath. Up to that time in general terms he only had the opportunity of making an unsworn statement. No one at that time knew—and, of course, at that time, on the whole, defendants were unlikely to be legally represented—to what extent the defendant might wish to take advantage of the opportunity of giving evidence on oath from the dock, and it was, therefore, thought desirable at that time to leave in the existing opportunity that he had of making an unsworn statement.

What has happened since 1898 is that the commonly accepted practice, of course, is that a defendant—in fact, usually represented—goes into the witness box, takes the oath, gives evidence and is cross-examined. At the same time, the hangover from pre-1898 days of this opportunity of making an unsworn statement from the dock is one which has continued and, to some extent, has indeed increased in usage in recent years, with the result that in the cases where it is so used it totally distorts our criminal procedure.

I say that for various reasons. First, it means that information is put in front of the magistrates or the jury which is not tested or checked and which is not subject to cross-examination and which, therefore, cannot be fairly adjudicated upon by the magistrates or the jury or compared with the evidence given by witnesses from the witness box.

Secondly, confusion is bound to arise in the minds of the magistrates or a jury as to what they should do, as to how they should treat such information given to them from the safety of the dock. I only have to read very shortly the passage in Archbold in paragraph 583 as to what a jury should be told for your Lordships to realise the impossible position in which they are placed by that present right. It says: The judge should remind the jury of the statement and tell them that though it is not sworn evidence which can be the subject of cross-examination, nevertheless they can attach to it such weight as they think fit and shall take it into consideration in deciding whether the prosecution have proved their case. Such a statement is certainly more than mere comment and, in so far as it is stating facts, it is clearly something more and different from the comments in counsels' speeches. What is said in such a statement is not to be altogether brushed aside, but its potential effect is persuasive rather than evidential. It cannot prove facts not otherwise proved by the evidence, but it might show the evidence in a different light. The jury should be invited to consider the statement in relation to the evidence as a whole. It is perhaps unnecessary to tell them whether or not it is evidence in the strict sense, but it is right to tell them "that a statement not sworn to and not tested by cross-examination has less cogency than sworn evidence. It is hardly surprising that juries who receive a direction along those lines are thoroughly confused as to what importance should be attached to what they have heard.

Thirdly, the opportunity of making a statement from the dock in that way is clearly capable of abuse, and is being abused, and I give simply two examples of that. First, if a defendant in the course of a trial, either through his own mouth or through his counsel, launches an onslaught on the character of the prosecution witnesses—whether they be police officers or civilian witnesses is immaterial—it is obviously right that the jury should know what is the character of that person making the onslaught. If the defendant goes into the witness box and gives evidence, he is then of course cross-examined as to his previous convictions. However, if he prefers to stay in the dock and make his statement from there, exactly the same onslaught takes place on the prosecution witnesses but not a word can be said to the jury by way of cross-examination of the defendant to indicate that he is a man of bad character who is making such an attack.

Another abuse that arises not infrequently is that a defendant, from the safety of the dock, may make an onslaught on his co-defendant and accuse him of having committed the offence, of being the ringleader or whatever it may be. No attack can be made on the defendant who chooses to take that course. There can be no testing of his story byway of cross-examination and all that happens at the moment is that the judge is obliged to tell the jury that what one defendant has said about another defendant's part in the commission of the offence is something which is wholly ineffective and must be disregarded. I once heard a defendant in a case make a statement from the dock lasting five days which consisted entirely of an attack on his co-defendant as being the ringleader and the principal conspriator in the particular crime as alleged. How absurd it is in those circumstances to say to a jury afterwards, "You must totally disregard everything you have heard for the last five days".

That the defendant should make a statement from the dock is really a ploy—a perfectly legitimate ploy but no more than a ploy—in the course of our criminal trials. It is invariably apologised for by defending counsel, who feels obliged to explain to the jury why his client is not going into the witness box. Almost invariably it consists of counsel saying that his client is illiterate, nervous, poor, has family worries or may not be able to do himself justice in the witness box. It is not often that counsel go so far as one of my learned friends once did, when defending a man who was as fit as a fiddle. He apologised to the jury for not calling his client but letting him make a statement from the dock saying that it was not for the jury to speculate on the reasons; for all the jury knew, he might be in the last throes of terminal cancer and physically completely unfit to stand in the witness box and be cross-examined. There are of course occasional cases where a defendant is perhaps at a disadvantage, physically or through his education, in going into the witness box, just as many witnesses are. But the jury or magistrates are perfectly capable of taking full account of that and assessing the value of his evidence accordingly. In those circumstances, it seems to me and to those who have supported the amendment that this hangover from pre-1898 days of the opportunity of making an unsworn statement from the dock gives totally unfair advantages to the defendant, and does so when put to skilful use in a way which is not in the interests of justice or in the interests of there being a fair trial.

I should perhaps add that not only is the amendment supported by noble Lords of some experience in criminal procedure, as the Committee will see from the Marshalled List, but it was supported as long ago as 1972 by the Criminal Law Revision Committee, which consisted entirely of lawyers and which dealt with the matter in this way: We are strongly of opinion"— I quote from page 65 of the committee's report— that the right to make an unsworn statement about the facts instead of giving evidence on oath or affirmation should be abolished. Whatever justification there may have been for preserving the right in 1898, we think that nowadays the accused, if he gives evidence, should do so in the same way as other witnesses and be subject to cross-examination". That was what eminent lawyers thought in 1972. In 1981 there were eminent non-lawyers who formed the Royal Commission on Criminal Procedure that was chaired by Sir Cyril Philips. Dealing with this particular right, the Commission reported at page 91 that the Criminal Law Revision Committee, recommended its abolition as a useless anachronism, and that position gains almost unanimous support in the evidence to us. All but one of us think it should go. Although it is of relatively long standing, its purpose has long since gone. And there are some positive objections to it. It provides an opportunity for the accused to engage in attacks on the prosecution or upon his coaccused which cannot be tested in cross-examination. Its status is unclear and may be confusing to a jury and magistrates; since it is not on oath and cannot be tested by cross-examination, it is not formal evidence. But the jury can scarcely ignore it, and have to be instructed merely to make of it what they wish. In our view, this is extremely unsatisfactory. It is anomalous that this part of the defence case should not be subject to the law of perjury, and we are aware of a number of cases in which the freedom has been abused". In those circumstances, and with that weighty support, I commend the amendment to your Lordships' Committee. I beg to move.

Lord Diplock

The abolition of this historical anachronism was, I believe, the least controversial of the proposals of the Criminal Law Revision Committee in 1972. Indeed, but for the fact that I understand that one Member of your Lordships' Committee is to oppose it, I should have thought that it was devoid of any controversial content. I do not know a single judge who approves of it. It has nothing to do with the so-called right of silence. What it has to do with is the right to lie to the court with impunity.

The Criminal Law Revision Committee said in 1972 that the practice very seldom occurred. During the 10 years that I was judging criminal cases—a period which, I fear, finished in 1961-1 never remember it happening. But of recent years it has become a ploy in certain courts—by no means all of them, I am glad to say. What happens is that it enables a character destructive cross-examination of prosecution witnesses. It may be the victim in a case of rape. Often it may be a co-defendant. It is very frequently the police. After the suggestions have been made to witnesses and denied, the accused, instead of going into the witness box, where he would be faced by cross-examination as to the truth of the allegations and where he would put his character in issue, repeats his allegations from the safety of the dock, sometimes in a statement written out for him by counsel.

This right, surviving from the Act of 1898, is not only anachronistic: it is confusing to the course of justice, as the kind of direction that has to be given to the jury illustrates, and it is gravely unjust to innocent witnesses who appear in court. It is not a moment too soon to abolish it.

Lord Hutchinson of Lullington

The noble and learned Lord—

Lord Elton

It may be for the convenience of the Committee, in case noble Lords should injure themselves pushing too hard at the door, to let your Lordships know that the door is open. I propose to suggest to your Lordships that this amendment should be accepted.

Lord Hutchinson of Lullington

Far from pushing at the open door, I intend to push the door shut, if it is not too late to do so, and to oppose this amendment. The noble and learned Lord, Lord Diplock, has said that he knows no judge who would do other than support this amendment. So far as the Bar is concerned, there is a very strong division of opinion about it for reasons which I shall outline.

The proposal has no doubt arisen because of the Stonehouse case, where the defendant had distinguished lawyers to make a submission on his behalf attacking the indictment at the beginning of the case and, that having failed, then sacked his lawyers and proceeded to make a six-day statement from the dock. The learned judge who was trying that case was the distinguished judge who later served on the Royal Com- mission, and no doubt had some influence on the recommendation which has been read out by my noble friend Lord Wigoder.

But I would suggest that this proposal is really the thin edge of the wedge to water down and eventually get rid of the right to silence and the rule against self-incrimination, which, unfortunately, we know from what happened in 1972 with the Criminal Law Revision Committee, was in fact supported by those distinguished judges who have been referred to by my noble friend Lord Wigoder, who at the time, of course, made the outrageous proposal that the right to silence should be abolished and that if a defendant did not give evidence on oath the jury could take that fact as evidence of his guilt.

That proposal resulted in an outcry and a famous debate in this House in which a number of learned Law Lords came down here and spoke against it, including the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lords, Lord Salmon and Lord Simon. In fact, I think the only noble and learned Lord who spoke against it was the noble and learned Lord, Lord Diplock; and, therefore, I am not surprised that he has in fact sought to support this amendment on this occasion.

Lord Diplock

I did not speak on it at all.

Lord Hutchinson of Lullington

If I am wrong about that then I apologise at once. The fact of the matter is that this proposal of course formed part of the package which was put forward at that time by the Criminal Law Revision Committee.

There are some specific objections to it which I should like to lay before your Lordships. First of all, I do not know whether my noble friend Lord Wigoder has really thought about what would happen in a magistrates' court if this amendment was in fact accepted. Over and over again in a magistrates' court, in simple criminal cases, whether they are motoring cases or whatever else they may happen to be, the magistrates will say at the end of the evidence given by the police, "You can now go into the witness box and give the evidence you want to give on oath, or say what you want to say from the dock". In case after case, the person will say, "I don't want to go into the box. I can say what I have to say from here". In three sentences he will say that, for example, in a parking offence, he was" not there for 20 minutes "or he was" only there for 10 minutes", or he was" not driving this way but that way" or whatever the simple defence may be.

Is it really suggested that from now on in every single criminal case, however trivial, in every magistrates' court in the country, the defendant who comes into court must either remain silent or go into the witness box, take the oath, and then be subjected to cross-examination by the police officer dealing with the case or by some keen young solicitor or young barrister who is there? The amount of extra time involved will be enormous. I would suggest that it is really a rather ridiculous suggestion that people in magistrates' courts cannot make their statements from where they are and get the cases dealt with in a few minutes, as they are over and over again at the moment.

Some of your Lordships may have been in Marlborough Street Magistrates' Court at Christmas time when the sellers of goods on the pavements, who are repeatedly arrested for obstructing the pavements, build up a relationship with the magistrates. They come into court; they know their magistrate. There may well be seven, eight, nine or 10 cases dealt with in a few minutes. Each of them will have his little say from the dock, asserting that he had had an unfortunate day, that it was a bad time, that his wife was ill and so on. Is it suggested that every one of them should go into the witness box or sit silent in the dock?

The other objection is an objection of principle and profoundly important and is one of the reasons why numbers of defendants in the last seven, eight or nine years (and more recently perhaps than that) have taken to making statements from the dock rather than going into the witness box—described, of course, by senior judges as a ploy; and by some senior lawyers, and, I am afraid, by my noble friend Lord Wigoder. In many cases it is not a ploy. A defendant with a record is arrested by the police. He is, say, a man who has robbed banks in the past. He will be arrested by the police when there has been a bank robbery; he will be taken to the police station, kept there for three or four days and will be interviewed and interrogated at great length because either the police think he was one of the gang involved or they picked him up at random as being a likely person to be involved.

He may say throughout his interrogation that he does not want to say anything and will not say anything until he has a solicitor. Later, he is charged with the offence and the police officer says that he made a confession of some kind and said, "Can't you overlook it this time?" or words to that effect. The jargon now at the Bar is," the verbals"—putting words into a defendant's mouth. If that defendant, when the trial comes on, goes into the witness box and says, "Those words were not spoken by me; they have been invented by the police", then the prosecuting counsel is entitled at once to cross-examine that person on his past convictions. He may say" Ha, that is what you are saying, but you are a man who committed a bank robbery four years ago, did you not? —and that is precisely what you are charged with here". This is not a ploy. That is something which has happened a great deal in the last years, and, as your Lordships will know, one of the problems in criminal trials has been this repeated dispute as to what goes on in police stations, and the desire by many of us to see that there are tape recordings and so on in police stations, accurately to record and to discover whether this kind of thing goes on or whether it does not go on.

I can only say to your Lordships that repeatedly one has established in court that it does go on. It puts enormous power in the hands of those police officers who are not as scrupulous as some of their bretheren, and, if one knows, or thinks one knows, that a man with a record has committed an offence and there is not sufficient evidence against him, there need be only the one word of some form of confession that one alleges was said in a police station on the third day of interrogation. One knows that that man cannot go into the witness box and dispute it because immediately his record will be put in and then he will be lost; and he may be totally innocent.

I would submit to your Lordships that it is very important that, because this right of the individual not to be pushed and forced into the witness box and subjected to skilful cross-examination by a professional advocate is sometimes abused, one should not get rid of these kinds of rights which individuals still have—not at all by some chance of 1898. It is a basic simple right—is it not?—that anybody charged with an offence who does not wish to subject himself to cross-examination by a skilled advocate, because he may consider, and may consider quite rightly, that he has been "verballed" by the police or by anybody else and that if he goes into the witness box his whole record will be put in, is entitled, if he so wishes, to stay in the dock and simply say, "the statement that I made to the uniformed officer I saw when I was charged was that I was entirely innocent and was at home in bed with my wife at the time. The police officer invented that confession. I said that at the time to the officer in charge of the police station and that is the truth; and I remain where I am. You have heard the police officer cross-examined and you may well take the view that he was not telling the truth".

I would submit to your Lordships that there is something unpleasant and oppressive in forcing a person into a position where he has to submit himself to this procedure. Incidentally, the abuse to which my noble and learned friend Lord Wigoder has referred of persons staying in the dock while their counsel makes a speech will not be cleared at all by this amendment, as the amendment points out. We cannot stop a person making a speech from the dock in his own defence if he wishes to do so. All that will happen if this amendment is accepted is that we shall have a further abuse whereby defendants will now repeatedly let Counsel conduct the case to the end of the case for the prosecution, let Counsel cross-examine the witnesses, and will then say, "I now want to get rid of my Counsel. Having got rid of the Counsel, they will then proceed to do what Mr. Stonehouse did, which was to make long speeches from the dock in his own defence. People will be able to do exactly the same as they do now. So this clause will not clear the abuse and will give rise to another abuse which in my submission will be far worse. I would ask the Committee to reject this amendment.

3.35 p.m.

Lord Elwyn-Jones

The arguments and facts brought forward by the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Diplock, seem overwhelming. The provision of the amendment expressly establishes and reasserts the right of the accused who is unrepresented to address the court or the jury otherwise than on oath on any matter on which, if he were so represented, counsel or a solicitor could address the court or jury on his behalf. Whether a ploy quite as blatant as that to which the noble Lord, Lord Hutchinson, referred would even possibly do any good to the accused person in the given case, I doubt very much indeed.

There is no doubt that this practice has increased enormously in recent years and in my experience of these matters there is abuse of the practice. It tends to cause more injustice to innocent persons than the risk involved in what is proposed. On the question of "verbals", I fully agree that this part of interrogation and investigative procedures needs a thorough and early overhaul. I hope that very soon we may have an opportunity of discussing the Phillips Report on this matter. I agree that the present arrangements are unsatisfactory and run the risk of unacceptable "verbals" going in that ought not to be admitted. That, it seems to me, is a different issue.

I do not regard what is proposed in this amendment as the thin end of the wedge to get rid of the right of silence. I strenuously sustain that right, as I suspect would the two noble Lords who have spoken in support of the amendment. Therefore from a personal view point—and I speak in this matter only for myself—I support the amendment.

Lord Elton

I shall try to be brief, because it seems to me that the ground has been so eloquently, adequately and compellingly covered by the noble Lord, Lord Wigoder, and the noble and learned Lords, Lord Diplock and Lord Elwyn-Jones. I have listened with great care to what the noble Lord, Lord Hutchinson, has said. I believe that the right to silence is accepted and has become clearly established. The defendant has a choice whether to give evidence or not. That is right and the law provides that if he chooses not to give evidence, the prosecution may not comment on his failure to do so; neither do I see any wedges in this amendment to open the door to end the right to silence.

The preservation of the unsworn statement is therefore not necessary in order to make the right not to give evidence an effective one. In our view, the unsworn statement is quite out of place in modern legal procedure. Facts or allegations contained in an unsworn statement occupy an anomalous position. It is clear that they are less than evidence yet they seem to be regarded as something more than argument. Juries are often told to make of them what they will, but they must find them confusing. I realised that more clearly after the noble Lord, Lord Wigoder, read out the directions, than I had realised before.

Abuse of the right is on the increase. Defendants have used the unsworn statement to blacken the characters of prosecution witnesses, safe in the knowledge that their own credentials cannot be called into question and that they cannot even be cross-examined as to the truth of the allegations that they make. Some have simply taken the opportunity to waste inordinate amounts of time. I do not intend to do that myself.

The noble and learned Lord, Lord Elwyn-Jones, has already made the point that the unrepresented defendant will certainly still be able to answer questions. It is my belief that the represented defendant probably could be questioned also without going into the witness box, but I should have to ascertain that for sure. The noble and learned Lord, Lord Diplock, has already put the noble Lord, Lord Hutchinson, right about his part in the debate on this issue; but at about the same time in his address he implied that the Royal Commission had recommended that the right to silence should be modified or withdrawn. The noble Lord is saying that he did not. So I need not correct him on that point. The Royal Commission thought the unsworn statement, on the other hand, should go. So do the Government, and so does almost everyone else who has spoken in this debate. I hope that the noble Lord presses the amendment if it is necessary to do so.

Lord Wigoder

May I make one observation? Supposing since 1898 the courses open to defendants in this country had been, first, to remain silent with no inference of guilt whatever to be drawn from that, or, secondly, to go into the witness box like everybody else, take the oath and be cross-examined, which would be the position if this amendment were carried. I cannot help wondering whether it would ever remotely have occurred to the noble Lord, Lord Hutchinson, if I may say so, to come here today and say: "I have had the most marvellous idea: why do we not give the defendant the right to make an unsworn statement from the dock?"It is not a logical position; therefore I beg to move.

On Question, amendment agreed to.

Lord Donaldson of Kingsbridge moved Amendment No. 165: After Clause 54, insert the following new clause:

("Possession of cannabis personal use to be non- imprisonable on summary conviction. Possession of cannabis.

. In paragraph 1(1)(c)(i) of Schedule 5 to the Criminal Law Act 1977, the words "3 months or £500, or both "shall be omitted and the words"£500 where the drug concerned is cannabis or cannabis resin, and 3 months or £500, or both, if the drug concerned is not cannabis or cannabis resin "shall be inserted.").

The noble Lord said: In the absence of the noble Baroness, Lady David, I beg to move this amendment. It is a very simple one; it is very late on Friday afternoon and so I shall move it very rapidly. The thing to remember about this amendment is that it does not suggest that the possession of cannabis should be unpunished nor that the possession of cannabis for sale should be unpunished; it is not suggesting that the cannabis pusher should not be subject to imprisonment. It is suggesting that somebody who is found in possession of cannabis and tried in a summary court can he fined up to £500 but cannot—I repeat, cannot—be sent to prison.

I do not see that there can be any argument either way about this. It is a question of what you think about cannabis. I believe cannabis to be very much the equivalent to alcohol and rather more damaging than tobacco. I believe that if neither alcohol nor tobacco were known in this country and somebody was introducing them here we should try to stop it. That is the position over cannabis, and I am not trying to alter it. I am merely saying that in my opinion the taking of cannabis is not more damaging or more evil than the taking of alcohol—which several noble Lords are known to do, self included—or the smoking of nicotine, which I am glad to say I do not do.

Therefore, as part of the campaign to stop cannabis from spreading, which we think is a dangerous thing but not widespread at the moment, there is a perfectly good case for not making it illegal. There is no case whatever for sending to prison the simple offender who has cannabis which he or she is meaning to use himself or herself. I do not think that further exposition will make the position any clearer, and I beg to move.

Baroness Birk

Very briefly, I should like to support this amendment and to underline what the noble Lord has said, that it is not legalising cannabis and it is not doing away with the fine but it is giving the matter a better sense of proportion. When the penalties were first put into the previous Act many of us felt they were very draconian and did not make enough distinction between cannabis and other more serious drugs. In 1980, 150 people were given immediate custodial sentences by magistrates' courts for the simple possession of cannabis, and a further 200 received suspended sentences, of which probably some were activated at a later date.

A number of alternatives can be used, and once again I would stress that this amendment deals with the possession of cannabis for a person's own use. It does not give any leeway to the pusher: nor does it legalise cannabis. It seems to me to be much more in line with the sort of penalties we are talking about in this Bill, and it involves another category of person who should be kept out of custody.

The Earl of Listowel

I should like to support this amendment and the subsequent one, because I do not believe that the penalty of imprisonment is an appropriate punishment for the mere possession of cannabis whether imposed by the magistrates' courts or any other court. I should like very briefly to give my reasons for this view. First, it is a serious interference with the liberty of the individual to invoke the criminal law against someone who has done no harm and caused no damage to other people. A private pleasure, which does not result in anti-social behaviour, should not be prohibited by the criminal law, least of all, by the sanction of imprisonment. We do not prohibit alcohol, as my noble friend Lord Donaldson remarked, although its consumption is much more likely to result in anti-social behaviour.

Secondly, the Government's own Advisory Council on the Misuse of Drugs has for the last four years advocated a change in the law, so as to abolish the present power to send a person to prison for the mere possession of cannabis. At the end of 1978, the council made a number of recommendations to the Government to relax the harshness of the law against cannabis, which included a recommendation to remove this power of imprisonment altogether. In view of differences of opinion about the health risks of cannabis, this council set up an expert study group to go into the whole subject again, and the study group reported at the end of last year. The council then stated—having taken the views of the study group into consideration There is nothing in the report of the expert group which gives any grounds for the reconsideration of its earlier conclusions and its recommendations remain valid. This view is shared by all the organisations concerned with penal reform, such as NACRO, the Howard League for Penal Reform and the National Council for Civil Liberties.

A third reason is the general agreement that our prisons are grossly overcrowded and that this overcrowding, apart from its inhumanity, has led directly to more crime. Everything possible is being done by the courts to relieve overcrowding in prisons. It seems highly undesirable to aggravate this problem by sending more people to prison for such a trivial offence. Moreover, it should not be forgotten that even a light prison sentence can do lasting damage to the career and personality of the offender, without necessarily changing his private habits.

It is not the case that the police turn a blind eye to the use of cannabis. In 1978, there were over 10,000 convictions for simple possession, representing 75 per cent. of all drug offences. Two years later, in 1980, the figure of convictions for this offence had increased to over 12,000. Unfortunately, there is no breakdown of this figure between custodial and non-custodial sentences passed on the offenders, so we have no up-to-date figure of the number of prison sentences. It would be useful to the Committee, if the noble Lord, Lord Elton, when he replies, were able to give us some more recent figures. But if, as I hope, the number of prison sentences for mere possession has gone down, even one, to my mind, is too much.

My final reason for opposing penal sanctions for this offence is that it brings the law into disrepute, if thousands of people are breaking it every day without being prosecuted. The law cannot be respected, unless it is considered to be reasonable and is, therefore, supported by public opinion. Any conflict between legal prohibitions and public opinion should be resolved by Parliament as soon as possible, before such conflict can weaken regard for the law. This is surely an issue which does not concern Government policy or party policy, and I hope that the noble Lord opposite will leave it to the sense of the House.

Lord Avebury

When I last raised this matter in, I think, 1977, figures were available for the number of sentences of imprisonment that were passed on offenders for simple possession of cannabis. The number was certainly not significant, although I am glad to say that the practice of imposing sentences of imprisonment for first offences in the United Kingdom had virtually disappeared by that time. However, in the Channel Islands, where they have a rather antiquated view of these matters, there were many cases where people were being sent to prison for first offences; unfortunately, we do not have jurisdiction there.

I agree with the noble Earl that it is an enormous stain on somebody's reputation to be sent to prison, even for a short period, for an action which 3 million other people in this country take with impunity, and we have to remember that those who go to prison are only a minute fraction of those who, customarily or habitually, consume cannabis in large or small quantities.

I do not think it is sufficiently realised by some of the older people of this country that almost every young person in this country has tried cannabis at one time or another. I do not say that they are regular users and I do not say that I would like to encourage it, because I am not in favour of any drugs being used to the detriment of a person's health. But if they are going to ingest foreign substances of this kind, then cannabis is certainly less harmful than tobacco, which kills people with lung cancer and with various diseases of the heart and arteries, and is infinitely less harmful than alcohol, a drug which one eminent psychiatrist described to me as worse in its effects than heroin. And some of them we have discussed on previous amendments.

We have talked about the number of offences which people commit when they are under the influence of alcohol, which causes a vast number of criminals to be brought before the courts. We know about the incidence of psychiatric illness which is caused by alcohol. We know about the number of deaths and injuries on the roads to which that drug gives rise, yet alcohol is a socially acceptable drug which people take in large quantities. They will leave this Committee and go and have a drink in the bar, and this will be thought to be perfectly normal. The encouragement of alcohol by official agencies in the form of receptions at which alcohol is served is considered to be perfectly normal and part of the social scene. Yet when we come to cannabis, a drug which is infinitely less harmful than alcohol, every measure possible is taken to discourage it, even bringing the sanction of custodial sentences to bear on the offenders who dare to ingest this substance.

We really are living in the nineteenth century as long as we have this law on the statute book. If we do not take the opportunity to sweep it away now, it may be many years before we get another chance. We should have done it in 1977 when an amendment was before this House. Public opinion would have been with us, as it is now. The vast majority of people will say that we have taken a small but useful step in the revision of the criminal law if this amendment is passed.

Lord Monson

On this occasion I am very pleased to be able to support the noble Lord, Lord Donaldson of Kingsbridge, and the noble Baroness, Lady Birk. Excessive consumption of cannabis is almost certainly harmful, just like excessive consumption of tobacco. But one knows far too many people who have smoked cannabis occasionally or who have taken it in some other form, with absolutely no ill effects whatsoever, to believe that there can be any possible justification for sending people to prison for this offence.

Lord Elton

We have been smoking tobacco for some 350 years. Medical research into its effects is relatively recent, is hugely financed, is backed by the Government and has very recently revealed that it has exceedingly damaging and often lethal—and painfully and hideously lethal—effects upon the people who use it. Cannabis is recently imported into this country. The medical research into it has not been fully coordinated. It has not had massive support and its results are at present thoroughly uncertain. As has been revealed in the report of the Advisory Council on the Misuse of Drugs into the effects of cannabis use, the evidence is incomplete and inconclusive.

The great anxiety which I have is that we may be putting ourselves unwittingly in the same position with cannabis as we now are with tobacco. If it receives the tacit approval of Government, and this is the first step towards that, we shall be in the position, perhaps, when the proper research is done—your Lordships will no doubt have read this report and seen how weak at present the ground is—that after we have started this process of legitimising and making respectable the process, which at present seems to be just as legitimate and respectable as, no doubt, the noble Lord, Lord Donaldson of Kingsbridge, thought of tobacco as being in his youth, we shall find it equally difficult to restrict its use.

Lord Donaldson of Kingsbridge

Fining somebody £500 is not the same as legitimising it.

Lord Elton

No. I said that this is the first step. The difficulty your Lordships place me in in the first place is that I would be agreeing to what can be seen by the public the consuming public—as a turning towards a new policy, which will encourage a habit in many which could not subsequently be discouraged and which might cost them grievously in terms of their health. That aside, if the clause was adopted, magistrates would lose the power to impose suspended sentences, community service orders or hospital orders under the Mental Health Act. That is the effect of the amendment as it is drafted, and I do not believe that noble Lords would wish to do that as well. I believe I have said enough to show why I cannot recommend that your Lordships should accept the amendment in its present form.

Baroness Birk

Before the noble Lord sits down, may I ask him, if this is carefully worded to cover personal use, whether one thinks people should smoke themselves to death, drink themselves to death or do what they like in their own way? That is one thing—a point which was taken up by my noble friend—but to say in argument that one cannot use a community service order or a suspended sentence returns this to the whole criminal orbit. All this amendment is saying is that, if people in their own homes want to indulge in something of which other people may disapprove very greatly, then they should be allowed to do so. It is quite ridiculous to talk of community service orders for people like them.

The Earl of Swinton

I should like to support my noble friend Lord Elton. I do not know a great deal about drugs, but have always understood that starting with what is supposed by some to be a relatively innocuous drug is but a step to a very much worse and harmful drug such as heroin. Therefore I believe that the use of cannabis should be discouraged as much as possible. It has also been said that this amendment does not prohibit the prosecution of those who are selling the drugs. But neither does it prohibit the prosecution of those who have the drug for their own use but who—as a number of your Lordships carry cigarettes in their pockets and offer them as a free gift to friends would introduce the drugs gratuitously to young people, which would then lead the young people on to very much nastier and more unpleasant drugs in the future.

Lord Donaldson of Kingsbridge

There is no evidence whatsoever that the use of cannabis is cumulative in the sense that it takes one on to other drugs. There is every sort of evidence to show that the type of person who takes drugs experiments with all sorts of different drugs. A connection does not exist and, in my opinion, that is pretty well established.

However, there is no point in dividing the House because it would tell us nothing about the reality. At this stage, I want to withdraw this amendment so that I may discuss it with the noble Lord, Lord Melchett, who has a rather stronger amendment which he is not going to move because he is not here, and possibly bring it back at Report stage. What I did not say when I opened this discussion was that this is supported by the All-party Penal Affairs Group, which is a fairly wise and careful body that is not trying to intoxicate the young. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 166 to 170 not moved.]

3.59 p.m.

Baroness Faithfull moved Amendment No. 171: After Clause 54, insert the following new clause:

("Revised penalties for offences under Schedule 24 to the Housing Act 1980 (provisions of means of escape in case of fire).

.—(1) In paragraph 7 of Schedule 24 to the Housing Act 1980 (enforcement of undertaking not to use for human habitation part of house without means of escape in case of fire) for the words"£50"and"£5"there shall be substituted the words"£1,000"and"£50"respectively.

(2) The following paragraphs shall be inserted after paragraph 7 of the said Schedule 24— 7A. Subject to the provisions of section 65 of the Housing Act 1964, if a person on whom a notice has been served under paragraph 2 of this Schedule wilfully fails to comply with the notice he shall be guilty of an offence and be liable—

  1. (a) on summary conviction, to a fine not exceeding £1,000;
  2. (b) on conviction on indictment, to a fine or to imprisonment not exceeding 2 years, or both.

7B. Any obligation to execute works in pursuance of a notice served under paragraph 2 of this Schedule shall continue notwithstanding that the period specified in the notice (with any extension permitted by the authority) or the period specified in relation to an appeal by section 65(5) of the Housing Act 1964 has expired; and a person shall be guilty of an offence if he wilfully fails to comply with that obligation after being convicted under the foregoing paragraph of failing to comply with the notice, or after being convicted under this section of failing to comply with the obligation, and any person guilty of an offence under this paragraph shall be liable—

  1. (a) on summary conviction, to a fine not exceeding £1,000;
  2. (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years, or both.".").

The noble Baroness said: On behalf of my noble friend Lady Gardner of Parkes, I beg to move Amendment No. 171 standing in her name. I will not speak to this amendment, but I will be grateful to hear what the Minister has to say. I beg to move.

Lord Elton

This amendment is concerned with Schedule 24 to the Housing Act 1980 dealing with the exercise of local authority powers to require the provision of means of escape from fire in houses in multiple occupation. Where a local authority consider a means of escape from fire is necessary they can serve a notice specifying the works which are required to provide the means of escape and requiring the works to be carried out within a specified period. If it appears that the means of escape would be adequate if part of a house were not used for habitation they may accept an undertaking that it will not be so used without their permission. Any person who then uses that part of a house or permits its use in breach of an undertaking is guilty of an offence. The amendment also concerns Schedule 23 to the Housing Act 1980 which sets out revised penalties for certain offences in relation to houses in multiple occupation paragraph 6 of which concerns the penalties for failing to execute works. Paragraph 8 concerns the penalty for wilfully failing to comply with an obligation to execute works after being convicted of failing to comply with a notice or with an obligation.

The amendment is intended to change Schedule 24 by increasing the penalty for breach of an undertaking not to use part of a house from a fine of £50 and a further fine of £5 for every day the offence continues, to £1,000 and £50 respectively. The amendment is also intended to increase the present fine of £500 in Schedule 23 for failure to execute works to £1,000. It would also make the offence triable either way and introduce an additional penalty on indictment of an unlimited fine or imprisonment for a term not exceeding two years. The amendment would also replace the penalty under paragraph 8 of Schedule 23 of £500 for wilfully failing to comply with an obligation to execute works by a penalty of £1,000 and, on indictment an unlimited fine or imprisonment for a term not exceeding two years.

I appreciate the noble Baroness's wish to improve standards of fire safety in houses in multiple occupation. Under the Housing Act 1980 the Government took powers to require local authorities to deal with those houses most at risk from fire, and we introduced grants for the provision of means of escape from fire. We also reviewed the levels of penalties for offences in regard to such houses and the levels in the Act conform to the general level for broadly comparable offences. At that time the initial fine for a breach of an undertaking not to use part of a house in multiple occupation was increased from £20 to £50. The maximum fine for failure to comply with a notice to execute works remained at £500 although the penalty of a maximum three months' imprisonment for a second or subsequent offence was removed. The maximum fine for failure to comply with an obligation to carry out works to provide means of escape from fire remained unchanged at £500. Both these £500 penalties were provided for in the Criminal Law Act 1977. Prior to that Act, the maximum fine had been £100 for both offences.

The increased penalties proposed by the noble Baroness would result in penalties which were significantly greater than for roughly comparable offences. Moreover, it is Government policy to reserve imprisonment for the most serious criminal offences. It was for this reason that imprisonment was removed from these offences in the Housing Act 1980. The proposal in this amendment to reintroduce imprisonment would run counter to that policy.

The Government have taken steps under the Housing Act 1980 to introduce more positive encouragement for the provision of means of escape from fire by allowing special grants for houses in multiple occupation to be made for this purpose as well as for standard amenities. A special grant must be paid if the relevant work is necessary for compliance with a notice served by a local authority under Schedule 24 to the Housing Act 1980. The eligible expense limit for such grants is at present £9,000 in Greater London and £6,750 elsewhere. In view of the Government's policies on penalties and their alternative approach of positive encouragement in the form of financial support for the cost of providing means of escape, I must advise your Lordships to reject the amendment.

Baroness Faithfull

My Lords, on behalf of the noble Baroness, Lady Gardner of Parkes, I thank my noble friend the Minister for that reply. She will read with interest what he says and perhaps bring it back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 171A: After Clause 54, insert the following new clause:

("Transfers between English and Scottish prisons.

. In section 26(1) of the Criminal Justice Act 1961—

  1. (a) for the word "may" there shall be substituted the word "shall"; and
  2. (b) at the end there shall be inserted the words unless there are special circumstances which make such a transfer inappropriate".").

The noble Lord said: This amendment is concerned with the transfer of prisoners between one part of the United Kingdom and another, which is dealt with in Section 26(1) of the Criminal Justice Act 1961. That contains a power which enables the Minister, if he sees fit, to make an order for the transfer of a prisoner from one part of the United Kingdom to another. In correspondence with the noble Lord, Lord Elton, he has explained the circumstances in which this power is exercised. He tells me that, first, obviously the prisoner himself must make an application for transfer from one part of the United Kingdom to another. He then says: Generally speaking the prisoner must have at least six months of his sentence left to serve", which is obviously sensible. He goes on: The most important criterion, however, is that to qualify for a permanent transfer, the prisoner should have been domiciled in the other country and have been in the country where he is in prison only temporarily when he committed his offence". That is really what I think we should examine because, as I have pointed out to the noble Lord, the restriction that I have just mentioned is not compatible with the obligations which we may take on under a draft Council of Europe treaty for the transfer of prisoners between one country and another.

There was a great difference in attitude between the Scottish Office and the Home Office when I raised this matter with them. Mr. Malcolm Rifkind, when he was at the Scottish Office, told me in a letter of 29th March: I fully accept that if there is to be an international arrangement for the transfer of prisoners in the United Kingdom to other European countries and possibly to other parts of the world, we should not create artificial harriers to transfers within the United Kingdom". That is all that I am saying. If we agree to an international instrument that enables us to exchange prisoners with other countries that are signatories to this draft treaty, then we should not impose more restrictions on transfers within the United Kingdom than we would between the United Kingdom and some foreign country.

The draft Council of Europe treaty provides, as we do here, that the sentenced person must still have at least six months of the sentence to serve and that the offence which he has committed must be an offence according to the law of the administering state as well as the state to which he will be sent. The offence must be subject to the criminal law in both states. But it does not say that he must be domiciled in the original state. Quite obviously, when we come to think of how a draft Council of Europe treaty would be applied, we realise that there might be citizens of other EEC countries who had entered the United Kingdom for the purposes of employment and had been resident here for many years before they were convicted in an English court of law, and they might still wish to be repatriated to their country of origin in order to serve their sentences.

As the noble Lord, Lord Elton, knows, we have prisoners from France and from Spain. I know that Spain is not a member of the EEC at the moment, but it probably will be by the time we get around to signing this draft treaty. In many cases, as the noble Lord is well aware also, these prisoners have enormous difficulties of communication within the prison and they are isolated because there is nobody who speaks their language. For instance, as the noble Lord has just told me in answer to a Parliamentary Question, there is no welfare officer in Parkhurst Prison who speaks Spanish and there is no inmate in Parkhurst Prison who speaks Spanish with the sole exception of one Bolivian citizen who finds himself located there and who is totally in communicado because nobody can speak his language. Obviously a person of that kind would very much like to be repatriated to his country of origin and so would the many British citizens who are living overseas, like to be repatriated to the United Kingdom to serve the rest of their sentences.

All I am saying is that, similarly, a Scottish prisoner, for example, who is serving his time in an English prison and who may have lived in England for many years prior to his conviction and be domiciled in England, may nevertheless wish to be, as it were, repatriated within the United Kingdom to Scotland, to serve his sentence. Also the case has arisen of Northern Irish prisoners, as the noble Lord, Lord Elton, knows, who are convicted of offences in Great Britain and who would like to be sent back to the Province in order to serve out their sentences there. I think that except for the one instance of the Price sisters when Mr. Roy Jenkins was Home Secretary, the Home Office has resolutely declined to permit any person from Northern Ireland who is sentenced in an English court to be sent back there to complete his sentence.

I do not think that this attitude is compatible with the genuine negotiations which I assume that the Government are undertaking in the Council of Europe with a view to signing this draft treaty. Therefore, in this amendment I provide that if a prisoner applies to be sent to another part of the United Kingdom, the Secretary of State shall comply with that request instead of being allowed to impose conditions which make it almost impossible for the prisoner to be transferred. I beg to move.

4.10 p.m.

Lord Elton

It is one of the distressing features of this job that so often one starts by telling the noble Lord, Lord Avebury, that one entirely agrees with his aspirations, but cannot concede the point. In this case we entirely agree that prisoners should, in general, serve their sentences in establishments which are as near to their homes as possible. This obviously helps them to maintain their contacts with their friends and families, and reduces their sense of social isolation. It assists their rehabilitation and their reintegration into the community on release. But ease of visiting is only one of many factors which have to be taken into account when a decision is made about where a prisoner serves his sentence.

I should like to direct myself specifically to two of the points which the noble Lord raised, and perhaps return to others at his request. On the question of the draft Council of Europe convention, it is not the case that this would entitle foreign prisoners to repatriation. The draft convention is part of arrangements which would enable us to repatriate prisoners. Like the provisions in the 1961 Act, there would be no obligation on us to agree to a transfer, and each application would be considered individually. If repatriation arrangements come into force, we shall, of course, draw up administrative criteria for deciding transfer applications. We would certainly not propose to treat foreigners more favourably than prisoners from other parts of the United Kingdom. However, there is a practical difference in that there is no equivalent to nationality which can be used in defining those who belong in the different jurisdictions of the United Kingdom, and thus the criteria would almost certainly operate slightly differentially

As to the case of applications for transfer from England to Northern Ireland, your Lordships will be aware of the difficult issues involved in this where terrorist offences are concerned. I can assure the noble Lord, Lord Avebury, that if a prisoner has not been convicted of that type of offence, and if his family lives in Northern Ireland, and if he was domiciled there before the offence, a transfer is possible. But, in fact, very few of the applications we receive fall into this category

I think that those are the principal matters of concern, but I may possibly have overlooked others which the noble Lord would wish to put forward while I was drawing these out of my brief. The noble Lord will perhaps let me know—not whether I have satisfied his wish to convert me to the amendment—but at least whether I have satisfied his wish to acquire information from me.

Lord Avebury

At this late hour I do not want to prolong the debate, but I quite accept the Minister's contention that he would not want to treat foreigners more favourably than we do prisoners within the United Kingdom. But if we are to sign this draft Council of Europe treaty, it surely presupposes that someone who is domiciled here and who is a citizen of one of the other countries that are signatories to the treaty, will normally he repatriated if he satisfies the conditions laid down in the draft treaty and if he has applied for a transfer.

But the noble Lord has told me quite plainly in our correspondence about Scottish prisoners that if they have been living in England for some time and they are domiciled in England, they lose their entitlement to be considered under Section 26(1). Therefore, I cannot see how the existing rules, which the Secretary of State applies in deciding whether to transfer a prisoner between England and Scotland or England and Northern Ireland under Section 26(1), can be brought into conformity with the obligations that we would take on if we signed the draft Council of Europe treaty. However, in view of the lateness of the hour, I think that I would prefer to leave that thought in the Minister's mind and perhaps return to it at a later stage.

Lord Elton

I wish merely to point out that there is a distinction of nationality between a Frenchman or a Bolivian and an Englishman, and an Englishman and a Scotsman, which is what I was trying to say earlier on. That is why the criteria would operate differentially. But the convention is in draft form and, if it is implemented, we shall obviously review the criteria.

Lord Avebury

I hope we shall review the criteria, and perhaps there will be an opportunity to discuss the matter at a later stage. It would be wanton cruelty to the Committee if I were to prolong the discussion on a matter which is of interest only to the noble Lord and myself, and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 55 and 56 agreed to.

Clause 57 [Minor and consequential amendments]:

On Question, Whether Clause 57 shall stand part of the Bill?

Lord Elton

While I do not wish to address the Committee on Schedules 13 and 14, to which reference is made, I thought I should at this point give notice that I shall be bringing forward two further amendments on Report in fulfilment of undertakings given during the passage of the Bill in another place. One is to give magistrates' courts the power to commit an offender to the Crown Court for sentence following a period of deferment under Section 1 of the Powers of Criminal Law Courts Act 1973. This will reverse what has been an unwelcome restriction on magistrates' courts and is a reform for which a number of organisations, including the Magistrates' Association and others, have been pressing. The second is to provide for legally aided bail application to the Crown Court by persons remanded in custody to appear before magistrates' courts.

Clause 57 agreed to.

Schedule 13 [Minor and consequential amendments]:

Lord Elton moved Amendment No. 172:

Page 98 line 46, at end insert— ("(2) The following subsection shall be added at the end of that section— (3) For the purposes of this section—

  1. (a) section 33 of the Criminal Justice Act 1982 (the standard scale of fines for summary offences); and
  2. (b) an order under section 143 of the Magistrates' Courts Act 1980 which alters the sums specified in section 33(2) of the Criminal Justice Act 1982,
shall extend to Northern Ireland.".").

The noble Lord said: This amendment is consequential to the Bill's taking over the separate inflation-proofing powers in the Merchant Shipping Act 1979 which are rendered unnecessary by Clauses 33, 38, 40 and 41. If the Committee is content with that amount of information, I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 173:

Page 98, line 46, at end insert—

("Customs and Excise Act 1952 (c. 44)

. For section 283(5) of the Customs and Excise Act 1952 there shall be substituted the following subsection— (5) The proviso to subsection (2) of this section shall not apply to Scotland; and in the application of the said subsection (2) to Scotland the maximum term of imprisonment which may be imposed on summary conviction in the sheriff court shall be 6 months, and the penalty for an offence which is triable only summarily by virtue of paragraph (b) of that subsection shall be that to which a person was liable on summary conviction of the offence immediately before 29th July 1977 (the date of the passing of the Criminal Law Act 1977) subject to any increase by virtue of Part IV of the Criminal Justice Act 1982.".").

The noble Lord said: I will, with permission, speak at the same time to Amendments Nos. 176 and 183. The purpose and effect of these amendments is to bring the mode of trial and penalties in Scotland for offences under Customs and Excise legislation into line with those of England and Wales. This is legal machinery, and I beg to move.

On Question, amendment agreed to.

[Amendment No. 174 not moved.]

Lord Elton moved Amendment No. 174A:

Page 103, line 28, at end insert— ("25A. In section 13 of that Act (under which a conviction of an offence for which a probation order or an order for conditional or absolute discharge is made is deemed not to be a conviction except for certain purposes)—.

  1. (a) in subsection (1), after the word" below, "there shall be inserted the words" and to section 50(1A) of the Criminal Appeal Act 1968 and section 108(1A) of the Magistrates' Courts Act 1980,"; and
  2. (b) in subsection (4)(a), for the words" appeal against his conviction or rely on it "there shall be substituted the words" rely on his conviction".".).

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 175: Page 104, line 39, leave out paragraph 30.

The noble Lord said: This is consequential. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 176:

Page 106, line 36, at end insert—

("Customs and Excise Management Act 1979 (c. 2)

. Section 147(5) of the Customs and Excise Management Act 1979 is repealed.

. In section 156 of that Act (saving for outlying enactments of certain general provisions as to offences)—

  1. (a) in subsection (3), the words "This subsection does not apply to Scotland" are repealed;
  2. (b) for subsection (4) there shall be substituted the following subsections—

The noble Lord said: This is consequential in that it was taken with No. 173. I beg to move.

On Question, amendment agreed to.

[Amendment No. 176A not moved.]

Schedule 13, as amended, agreed to.

Schedule 14 [Minor and consequential amendments-Scotland]:

[Amendment No. 176B not moved.]

Lord Elton moved Amendment No. 177:

Page 112, line 43, at end insert—

"Immigration Act 1971 (c 77)

. In section 6 of the Immigration Act 1971 (recommendations by court for deportation)—

  1. (a) in paragraph (b) of subsection (3), for the words "first offenders" substitute the words "persons who have not previously been sentenced to imprisonment";
  2. (b) in subsection (5), "the words "except in Scotland, and "paragraph (b) and the word "and" preceding it are repealed.").

The noble Lord said: This is a minor amendment consequential on the Criminal Justice (Scotland) Act 1980. It should have been made in the Act but was overlooked.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 178:

Page 113, line 1, at end insert— (". In section 193A of the Criminal Procedure (Scotland) Act 1975 (fines on conviction on indictment to be without limit)—

  1. (a) at the beginning, insert"(1)";
  2. (b) for the words "section 8 of the Criminal Justice (Scotland) Act 1980" substitute the words "section 457A(4) of this Act";
  3. (c) after the word "fine" where first occurring insert the words "of or";
  4. (d) for the word "section" in the second and third places where it occurs substitute the word "subsection";
  5. (e) at the end, insert the following new subsection—
(2) Where any Act confers a power by subordinate instrument to make a person liable on conviction on indictment of any offence mentioned in subsection (1) above to a fine or a maximum fine of a specified amount, or which shall not exceed a specified amount, the fine which may be provided in the exercise of that power shall by virtue of this subsection be a fine of an unlimited amount.".").

The noble Lord said: Section 193A of the Criminal Procedure (Scotland) Act 1975 is designed to give the courts a completely unfettered discretion as to the amount of the fine which should be imposed in cases where a person is convicted on indictment. This amendment is designed to correct two defects in Section 193A.

On Question, amendment agreed to.

Schedule 14, as amended, agreed to.

Clause 58 agreed to.

Schedule 15 [Repeals]:

Lord Sandys moved Amendment No. 178A: Page 116, column 3, leave out lines 11 to 14 and insert—("Section 2(8).").

The noble Lord said: With amendment No. 178A, I should like to speak to Amendment No. 179A. These are purely drafting amendments which are consequential on Amendment No. 149A. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 179:

Page 116, line 23, column 3, at end insert—

("In section 45(4), the words "Borstal training or detention in a detention centre".").

The noble Lord said: This amendment is consequential.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 179A: Page 116, line 35, leave out from ("1,") to end of line 36.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 180: Page 117, line 4, column 3, at beginning insert— ("Section 8(2).").

The noble Lord said: This amendment is consequential, and it has already been spoken to with Amendment No. 117. I beg to move.

On Question, amendment agreed to.

Lord Eltonmoved amendment No. 181:

Page 117, line 6, column 3, at end insert— ("Section 291(1).").

The noble Lord said: This amendment is consequential. I beg to move.

On Question, amendment agreed to.

[Amendment No. 182 not moved.]

Lord Sandys moved Amendment No. 183:

Page 117, line 43, at end insert—

("1979 c. 2. Customs and Excise Management Act 1979. Section 147(5). In section 156(3), the words "This subsection does not apply to Scotland.".").

The noble Lord said: This amendment is consequential on Amendment No. 173. I beg to move. On Question, amendment agreed to.

Lord Elton moved Amendment No. 183A:

Page 117, line 57, column 3, at end insert— ("Section 108(3)(a).").

The noble Lord said: This amendment has already been spoken to with Amendment No. 149D. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 184:

Page 118, line 11, column 3, at end insert— ("Section 8.").

The noble Lord said: This amendment was spoken to with Amendment No. 117. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 185:

Page 118, line 20, at end insert—

("1981 c.22. Animal Health Act 1981. Section 70.").

The noble Lord said: The proposed amendment here seeks to remedy the situation and give effect to Parliament's wishes of the last Session by repealing the appropriate offence in the consolidating measure. I beg to move.

On Question, amendment agreed to.

Schedule 15, as amended, agreed to.

Clause 59 agreed to.

Schedule 16 agreed to.

Clause 60 agreed to.

Clause 61 [Citation and extent]:

[Amendment No. 186 not moved.]

Clause 61 agreed to:

Lord Elton moved Amendment No. 187: In the Title, line 6, after ("courts);") insert ("to make provision for the prescribing of criteria for the placing and keeping of children in different descriptions of accommodation in community homes;").

The noble Lord said: This amendment is to bring Clause 23 within the scope of the Bill. I beg to move.

On Question, amendment agreed to.

[Amendment No. 188 not moved.]

Lord Elton moved Amendment No. 189: In the Title, line 6, after ("courts);") insert ("to amend the law of Scotland relating to the mode of trial of certain offences;").

The noble Lord said: This is an amendment which was spoken to with Amendment No. 117. I beg to move.

On Question, amendment agreed to.

On Question, Whether the Title, as amended, shall be agreed to?

Lord Donaldson of Kingsbridge

Perhaps I may take the opportunity, before we vote on this Motion, to congratulate the noble Lord, Lord Elton, on having got through this very long Committee stage.

Lord Elton

May I also take the opportunity to thank all noble Lords who have exercised restraint and, less generously, those who have not exercised restraint on the length of their speeches.

Baroness Birk

May I also thank the noble Lord, Lord Elton, for his patient and courteous manner and congratulate him on the numerous ways he found of saying "No" all the way through.

On Question, Motion agreed to.

House resumed: Bill reported with the amendments.