HL Deb 12 October 1982 vol 434 cc789-807

26. Offences under sections 50(2) and (3), 68(2) and 170 of the Customs and Excise Management Act 1979 in connection with a prohibition or restriction on importation or exportation of a controlled drug which has effect by virtue of section 3 of the Misuse of Drugs Act 1971.")

The noble Lord said: My Lords, I spoke to these amendments with No. 36. I beg to move.

On Question, amendments agreed to.

Schedule 3 [Maximum fines to be increased by more than the general increase:]

Lord Elton moved Amendments Nos. 98, 99 and 100:

Page 81, line 11, column 3, leave out from ("£20") to end of line 12.

Page 81, Line 15, leave out ("demanding") and insert ("exacting")

Page 81, line 24, column 3, leave out from ("£20") to end of line 25.

The noble Lord said: My Lords, I will, with the leave of the House, speak to these amendments and at the same time to Amendments Nos. 102, 103, 104, 105, 106 and 107. These are all purely drafting amendments. Unless your Lordships wish me to explain their effect in detail, I shall move them en bloc.

On Question, amendments agreed to.

Lord Elton moved Amendment No. 101:

Page 82, leave out lines 3 to 5.

The noble Lord said: My Lords, this amendment is consequential on No. 49. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 102, 103, 104, 105, 106 and 107:

Page 83, line 24, leave out ("(1)" and insert ("(6)")

Page 83, line 30, column 3, leave out from ("£100") to end of line 31.

Page 83, line 34, column 3, leave out from ("£50") to end of line 35.

Page 84, line 11, column 3, leave out from ("£100") to end of line 12.

Page 84, line 32, at end insert ("other than offences of tampering etc, with parking meters and similar apparatus or devices")

Page 86, line 35, leave out ("£5") and insert ("£25")

The noble Lord said: These amendments are all consequential, my Lords, and I spoke to them with No. 98. I beg to move.

On Question, amendments agreed to.

Baroness Gardner of Parkes moved Amendment No. 108:

Schedule 3

Page 86, line 36, at end insert—

HOUSING ACT 1980 (c. 51) Offence under paragraph 7 of Schedule 24 (using or permitting the use of premises without means of escape in case of tire in contravention of an undertaking). Section 147 and Schedule 24 £50 and £5 per day following conviction. £1,000

The noble Baroness said: My Lords, this ties in with the previously accepted amendments to the Housing Act 1957. The Government having accepted those amendments, it would leave a very anomalous situation if they did not accept this one. It is important that the penalty with which we are concerned here should come into line with the other penalties under that Act and I hope that without going into the matter in great detail—because it is clear cut and speaks for itself—the Minister will accept it. I beg to move.

The Deputy Speaker (Lord Ampthill)

My Lords, Amendment proposed, page 86, line 36—and not line 35, as printed on the Marshalled List—at end insert the words as printed.

Lord Elton

My Lords, I am obliged to the noble Lord the Deputy Speaker for making what amounts to an oral amendment to the Marshalled List. During our earlier debate on an amendment on these lines, I said that the increase proposed would result in a penalty significantly greater than for roughly comparable offences. Since then, however, my noble friend Lady Gardner has successfully persuaded the Government to accept the amendment which she moved at Report stage, increasing the penalty for one of these comparable offences: that under Section 27(1) of the Housing Act 1957. In those circumstances the Government's previous objections clearly no longer have the same force, and the Government are therefore prepared to accept the amendment.

Baroness Gardner of Parkes

My Lords, I thank the noble Lord.

On Question, amendment agreed to.

Schedule 6 [Schedule to be inserted as Schedule 7D to the Criminal Procedure (Scotland) Act 1975]:

Lord Elton moved Amendment No. 109: Page 90, leave out lines 3 to 8.

The noble Lord said: My Lords, this amendment is consequential on Amendment No. 49. I beg to move.

On Question, amendment agreed to.

Schedule 8 [Courts-martial etc.]:

Lord Elton moved Amendment No. 110:

Page 98, line 3, at beginning insert— ("(1) The following subsection shall be inserted after section 57(2) of the Army Act 1955 and of the Air Force Act 1955— (2A) If the offender has attained seventeen years of age but is under twenty-one years of age, subsection (2) above shall have effect in relation to him as if the power to impose a sentence of imprisonment were a power to make an order under section 71 AA below. (2B) The subsection inserted by sub-paragraph (1) above in section 57 of the Army Act 1955 and the Air Force Act 1955 shall also be inserted after subsection (3) of section 38 of the Naval Discipline Act 1957, as subsection (3A) of that section, but with the substitution of "43AA" for "71AA".")

The noble Lord said: My Lords, this is an amendment to Schedule 8 to the Bill to modify a provision in the Armed Services Acts enabling a court-martial to deal summarily with contempt in connection with the court-martial proceedings by imprisoning the offender for up to 21 days. The amendment replaces the power of imprisonment by giving the court-martial power to deal with the young service offender by ordering his custody for a period not exceeding 21 days, the order to have effect as if it were a custodial order passed on the young service offender under the Armed Forces Acts.

During our debate on 21st July on Report the noble and learned Lord. Lord Elwyn-Jones, asked how these armed forces provisions would work. In reply I mentioned that there would be consolidated legislation. I am afraid that that was not right, and I should like to take this opportunity to apologise to both the noble and learned Lord and the House for misleading them and to set the record straight. I think that the noble Lord's real concern was to discover how the armed forces tribunals, which of course work by reference to the armed forces legislation, could be expected to be aware of the provisions being made in this Criminal Justice Bill, which is concerned with the powers of the ordinary criminal courts. The answer is that the provision is being made in such a way that the armed forces tribunals will not have to refer to the substantive provisions in this Bill, but only to the parallel provisions which the Bill inserts into the Service discipline Acts.

To give an example, Clause 1(1) of the Bill abolishes the sentence of imprisonment for offenders aged under 21. The effect of paragraph 1(a) of Schedule 8 is that each of the Service discipline Acts is amended to contain a provision that no Service court shall impose imprisonment on an offender aged under 21. The same approach is adopted in all the other substantive amendments which affect the powers of the Service courts. The effect is that they continue to exercise their powers by reference to their own legislation, and not by reference to this Bill. The amendments made to the Service discipline Acts will be set out in the Manual of Military Law.

I hope that that explains the position more clearly than the rather brief and slightly misleading reply that I gave in the earlier debate. I return to the amendment, which I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 111:

Page 99, line 33, at end insert— ("2A.—(1) In section 71B of the Army Act 1955 and section 71B of the Air Force Act 1955 (power to impose imprisonment for default in payment of fines)— (a) at the end of paragraph (b) of subsection (1) there shall be inserted "or

  1. (c) in respect of whom the court makes an order under section 71AA above on the same occasion for the same or another offence, or
  2. (d) who is already serving or otherwise liable to serve a period of detention under such an order.";
(b) the words "or detention" shall be inserted after the word "i m prison ment"—
  1. (i) in the third place where it occurs in that subsection; and
  2. (ii) in subsection (4); and
 (c) the following subsection shall be inserted after subsection (5)— (5A) An order imposing a term of detention under this section shall be given effect as if it were a custodial order under section 71AA above.". (2) The amendments made by sub-paragraph (1) above shall also be made in section 43B of the Naval Discipline Act 1957 but with the substitution of "43AA" for "71AA", in both places where it occurs.")

The noble Lord said: My Lords, the purpose of this amendment is to make provision in respect of young Service offenders who are in default in the payment of a fine. Fines imposed on Service offenders are normally recovered by means of deductions from pay, but there is power for a court-martial, on sentencing a Service offender who is at the same time sentenced to, or is already subject to, imprisonment, to fix a further term of imprisonment to take effect if the fine is not paid before the date on which the offender would otherwise be released. It is necessary for provision to be made in the Bill to enable that provision of the armed forces legislation to be applied to young Service offenders for whom imprisonment will no longer be available. Any order fixing a further term will be given effect in the same way as any other custodial order made by a court-martial on a young Service offender. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 112: Page 101, line 9, leave out (" those Schedules") and insert ("Schedule 5A to the Army Act 1955 and to the Air Force Act 1955").

The noble Lord said: My Lords. I spoke to this amendment with Amendments Nos. 55 and 56. I beg to move.

On Question, amendment agreed to.

Schedule 11 [Probation and after-care]:

Lord Mishcon moved Amendment No. 113:

Page 108 line 19, leave out from ("unless") to the end of line and insert— ("it has first consulted a probation officer as to—

  1. (a) the offender's circumstances: and
  2. (b) the feasibility of securing compliance with the requirements, and is satisfied, having regard to the probation officer's report that it is feasible to secure compliance with them.")

The noble Lord said: My Lords, well-informed and sweet-sounding rumour has it that this amendment may well he accepted by the Government. In those circumstances, and in reliance upon that rumour, I intend to be extremely brief. Your Lordships will remember that this new provision, which deals with requirements in probation orders, was debated, and opposition was expressed to it, but it is now in the Bill. The desire of this amendment is to see that at least there is proper consultation with probation officers: not just the general term "consultation", as mentioned in the Bill, but consultation dealing with the specific items set out in this amendment. I beg to move.

Lord Elton

My Lords, the friendly operation of the House denies me repeatedly the pleasure of holding the noble Lord opposite in suspense. I will speak but briefly longer than him. The amendment seeks to spell out in some detail what should happen when a court consults a probation officer about including a requirement in a probation order which would entail the offender attending a specified place or participating or refraining, from participation in specified activities. As the Bill stands at present, the court must consult a probation officer before making such a requirement. In addition, the offender himself must consent to the requirement, and the agreement of any third party concerned must also be obtained. That is quite a formidable array of safeguards, and might seem sufficient to prevent the making of unsuitable requirements.

We are, of course, well aware of the similar provision which is now included in Clause 21 dealing with requirements in supervision orders. This was introduced by my noble friend Lord Trefgarne at Committee stage. We are anxious to do everything possible to maintain the confidence of the courts in the probation order, particularly when it may be used as an alternative to a custodial sentence. We therefore agree that it is very important that the court is satisfied that there is every reason to suppose that the offender will be able to meet the obligation which is being imposed. That may be particularly relevant when the so-called negative requirement is being considered. We should not wish to prevent such negative requirements from inclusion in probation orders if they were decisive in persuading a court in favour of probation rather than custody.

On balance, therefore, the Government are prepared to recommend acceptance of the amendment, on the grounds that it will give courts greater confidence that requirements in probation orders will be effective and therefore that such orders can present a feasible alternative to custody. While it may be that the noble Lord was not so anxious to hear the reasons for the acceptance, I felt it necessary to put them on the record so that others should understand why we have taken this decision.

Lord Mishcon

My Lords, I am much obliged to the noble Lord the Minister.

On Question, amendment agreed to.

10.48 p.m.

Lord Mishcon moved Amendment No. 114:

Page 108, line 34, at end insert— ("(4A) A place specified in the order shall 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.").

The noble Lord said: My Lords, the self-same rumour reached me in regard to this amendment, and I hope it was equally correct. Therefore, I can be extremely brief. Your Lordships will appreciate that in this amendment we are dealing with a place specified in an order. If your Lordships look at the new Section 4B. you will find that day centres are there mentioned, and they are geared specifically to the needs of offenders. But the new Section 4A is concerned with other places, and there is nothing in that new section to ensure that the places specified reach a suitable standard. This amendment deals with that provision. I beg to move.

Lord Elton

My Lords, this amendment would require centres of facilities that are included in requirements in a probation order to be approved by the local probation committee before an offender attended them. The provisions in the Bill would already require the consent of the offender and the agreement of any third party involved, as well as consultation with a probation officer. What is being sought here is an additional safeguard about the values and standards of the centre or the activity concerned.

We ought to be clear about the intention behind such safeguards. There is general agreement that courts should be encouraged to make non-custodial disposals wherever that is appropriate. The inclusion of requirements in a probation order may well he the factor which persuades a court to put an offender on probation rather than sending him into custody. What we should be seeking, therefore, is greater confidence on the part of probation officers that they can recommend suitable facilities in a report to the court and greater confidence by the court that any requirement they make will benefit the offender and contribute to his keeping out of trouble during the currency of the order. That is the intention of this amendment as I understand it.

If the local probation committee has approved a particular facility, then the court is more likely to have confidence in its regime, and is therefore more likely to use it. To that extent, this could be an encouragement to the court to give serious consideration to probation as an alternative to a custodial sentence. Therefore, as the noble Lord correctly anticipated, the Government are prepared to recommend acceptance of the amendment.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 115:

Page 108, line 48, at end insert— ("(7) Requirements under this section shall not operate so as to contain a custodial or other punitive element and shall he such as to advise, assist or befriend the probationer.").

The noble Lord said: My Lords, there has been on this occasion a failure of communication as a result of which I have not heard this rumour. However, equally, I can be brief in regard to this amendment. Recently, there has been a tendency to use the probation order as a vehicle for imposing restrictive and punitive elements which are very much like a semi-custodial sentence. The noble and learned Lord, Lord Bridge, was commenting on this when, in a judgment in the case of Cullen v. Rogers, he said: A requirement"— and then follow a few words not relevant to this— must not introduce such a custodial or other element as will amount in substance to the imposition of a sentence". This amendment spells out clearly what the probation service wants to have spelt out—namely, that the aim of probation is to advise, assist and befriend. It can do no harm. The noble Lord the Minister in a courteous letter to me implies that it can do no good because there it is well known and statutorily enforced that this is the job of the probation service. Because it can do no harm, because the probation service want it and because it has an implication in regard to the statement that was made by the noble and learned Lord in that well known case, I would hope that the House would agree to this amendment. But it would be even better if the noble Lord the Minister could save the time of the House by agreeing to it himself. I beg to move.

Lord Elton

My Lords, this amendment would provide that attendance at a facility or participation in activities specified under Section 4A should not in practice introduce a custodial or other punitive element, but should be designed to advise, assist or befriend the offender. I can well understand the motives behind this amendment. None of us wishes to introduce anything which is not compatible with the nature of probation. I am sure that we all wish to see the probation order used to the benefit of the offender and to keep him out of further trouble during the currency of the order.

So much is common ground. But difficulties are introduced as soon as we begin to use words like "custodial" or "punitive". These adjectives are too imprecise in the context in which the amendment places them, and would almost certainly lead to doubt as to precisely what facilities and activities they embrace. To take a lay example, is a requirement to attend a lecture indoors on a warm summer afternoon for my own edification and good entirely educational? It will certainly seem to contain a custodial element to me. Is a requirement to join a cross-country run on a cold and wet winter afternoon for the improvement of my own moral and physical fibre only entirely therapeutic? It will certainly seem to have a punitive element to me.

To avoid litigation, the courts would need to know for sure in every case in which they made requirements in probation orders. In addition, there might well be a series of appeals that certain requirements had fallen foul of such a provision. The result would be great uncertainty about whether it was safe to make requirements or not, and a reluctance on the part of courts to take that risk. They could be forced to conclude that, although they did not wish to do so, they had no alternative in some cases but to give custodial sentences in place of probation. We should, therefore, see the very opposite of what I am sure is the noble Lord's intention.

In cases of this kind we have to make clear what our intention is. Clearly, it is to give the probation order the flexibility to deal with quite sophisticated offenders in the community. Courts then need to have the confidence to make use of probation; and that means they want some idea of how the offender is going to spend his time, and what he will be doing. One can, of course, say that requiring him to attend any centre or take part in an activity is "custodial" or "punitive". I would prefer to say that such requirements are the very opposite, because they are the means of keeping the offender in the community; that is, out of custody and taking part in what would be to his benefit.

Finally, we should remember what are the general duties of a probation officer. These include the statutory duty to "advise, assist and befriend" those who are placed under his supervision by the courts. We can properly draw the inference that the probation order is intended to create the framework for that duty to take place. It may be that at times the order will impose certain restrictions, or impose some discipline upon an offender's life. I do not think any of us would see that as being custodial or punitive, but it would be open to that interpretation. It is rather creating the conditions for realistic advice, assistance and effective friendship. Let us not put any artificial barriers in the way of allowing the probation service to tackle the problems of those who might otherwise well end up in prison.

I hope the noble Lord does not think that I am being pettifogging. It is an honest opinion that those interpretations could be placed on these terms and would be so placed in circumstances which would eventually lead to a limitation of the freedom of disposal of the courts rather than otherwise.

Lord Mishcon

I would never accuse the noble Lord of being pettifogging in any respect; but I think that the House will be very disappointed in the personal examples he gave of his lack of cultural and athletic appetite. Having said that. I think it would not serve a useful purpose to the House if at this stage of the Bill and at this time I tried to press this amendment. I have put my point of view; I have put the probation officer's point of view. The noble Lord has given me a courteous reply. In those circumstances, I do not propose to press the amendment.

Amendment, by leave, withdrawn.

Schedule 12 [Community Service Orders]:

10.57 p.m.

Lord Elton moved Amendment No. 116: Divide Schedule 12 into two schedules, the first consisting of Part I and the second of Parts II to IV.

The noble Lord said: This amendment is consequential on Amendment No. 80. I beg to move.

On Question, amendment agreed to.

Schedule 13 [Minor and consequential amendments]:

Lord Elton moved Amendment No. 117: Page 131, line 37, after ("Scotland).") insert ("and in section 42(2) (application to Northern Ireland).").

The noble Lord said: My Lords, this is a purely technical amendment relating to transfer of young offenders in custody between the various British jurisdictions. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 118: Page 131, line 45, leave out from ("after") to ("Where") at page 132, line 1. and insert ("subsection (1B)— (1C)").

The noble Lord said: My Lords, this is a purely drafting amendment. As it stands the Bill inadvertently creates two new subsections 1(A) in Section 60 of the Criminal Justice Act 1967—in Clause 33(a) and in paragraph 18 of Schedule 13. This amendment simply corrects the latter reference to Section 1(C). I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 119: Page 133, line 38, at end insert—

("Criminal Appeal 1968 (c. 19))

22A. In section 10 of the Criminal Appeal Act 1968 (appeal against sentence passed by Crown Court for an offence not tried on indictment)—

  1. (a) in subsection (2)(b), after the word "discharge" there shall be inserted the words "or an attendance centre order";
  2. (b) in subsection (3)(a), after the word "imprisonment" there shall he inserted the words "or to youth custody under section 6 of the Criminal Justice Act 1982": and
  3. (c) the following subsection shall be inserted after subsection (4)—
(5) If by virtue of an order made under section 14 of the Criminal Justice Act 1982. the term of 4 months specified in section 4 of that Act is increased to a term of 6 months or more, subsection (3)(a) above shall have effect, for so long as the term so specified is 6 months or more, as if after the word "more" there were inserted the words "or an order for his detention in a detention centre for a term of 6 months or more has been made under section 4 of the Criminal Justice Act 1982".")

The noble Lord said: My Lords, the purpose of this amendment is to make two changes to Section 10 of the Criminal Appeal Act 1968 which provides a right of appeal to the Court of Appeal against sentence when a person is sentenced by the Crown Court for an offence for which he was not convicted on indictment. I indicated at the Report stage of the Bill, on 23rd July, that these changes would be necessary to take account of the new provisions of the Bill in relation to young offenders.

The first part of this amendment concerns attendance centre orders, and a young offender's right to appeal to the Court of Appeal against a sentence imposed by the Crown Court. At present, the Crown Court can make an attendance centre order only when it is dealing with a young offender who has been convicted by a magistrates' court and committed to the Crown Court under Section 37 of the Magistrates' Courts Act 1980 with a view to a sentence of borstal training. If the Crown Court decides not to pass such a sentence it can deal with the offender in any way in which the magistrates' court could have dealt with him, which includes making an attendance centre order. Any breach of the order will however be dealt with by the magistrates' court.

The Bill enlarges the power of the Crown Court to make attendance centre orders and gives the Crown Court power to deal with an offender who is in breach of such an order. When it deals with a breach, the Crown Court can pass sentence for the original offence as if the attendance centre order had never been made. The Criminal Appeal Act 1968 does not cover a sentence passed by the Crown Court in that situation where the offender was originally tried summarily by a magistrates' court. The purpose of the first part of this amendment is to ensure that in such circumstances the offender has a right of appeal to the Court of Appeal against the resultant sentence.

The remainder of this amendment concerns the new sentence of youth custody and the detention centre order. As I explained in relation to the earlier part of this amendment, Section 10 of the 1968 Act deals with the circumstances in which an offender who was convicted by a magistrates' court but sentenced by the Crown Court can appeal against that sentence to the Court of Appeal. Such an appeal does not usually lie where the Crown Court decides not to use its greater sentencing powers, but instead passes a sentence which would have been within the competence of the magistrates' court. As a limited exception to that broad rule, paragraph (a) of subsection (3) provides that there can be an appeal under Section 10 where the Crown Court passes a sentence of imprisonment (or more than one such sentence) totalling six months or more. That provision should also apply where a young offender is sentenced to youth custody for six months or more, and this amendment achieves this by adding to the statute a reference to the new young offender sentence.

The final part of this amendment makes provision in relation to a detention centre order of six months or more. The Bill provides that a detention centre order is a sentence of four months or less, but Clause 14 of the Bill contains an order-making power which would allow the Secretary of State to move the threshold of four months between detention centre orders and youth custody sentences. If that power were ever exercised so as to provide an upper limit of six months or more on detention centre orders, such orders would need to attract the substantive right of appeal under Section 10 of the 1968 Act, and this reference makes provision against that event. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne moved Amendments Nos. 120 and 121:

Page 138, line 18, leave out from beginning to ("(provision") and insert— ("42A. In section 10(2) of the Child Care Act 1980 (parental powers of local authorities) for the word "regulations made in pursuance of section" there shall be substituted the words "section 21 A of this Act and to regulations made in pursuance of section 21A or". 43. In section 21 of that Act")

Page 138, line 25, at end insert— ("43A. In paragraph (c) of section 39(2) of that 'Act (regulations as to conduct of community homes etc.) after the words "other requirements" there shall be inserted the words "(in addition to those imposed by section 21A above)".")

The noble Lord said: My Lords, on behalf of my noble friend Lord Elton. I beg to move Amendments Nos. 120 and 121. which are both consequential to Amendment No. 12.

On Question, amendments agreed to.

11.4 p.m.

Lord Foot moved Amendment No. 122:

Page 138, line 26, at end insert— ("In section 11(1) of the Magistrates' Courts Act 1980 insert at end "and where the trial of an information so proceeds such trial may take place together with the trial of other informations against the accused as the Court thinks fit".").

The noble Lord said: My Lords, if I have read the Marshalled List aright, I think this is probably the last amendment on the Marshalled List which involves any controversy of any kind. First of all. I will not apologise but I will express my regret that this small amendment of mine should be considered at such a late stage and that it was not possible for me to put the amendment down at an earlier stage of the Bill. The reason for that, as I have already explained to the Minister, is that the amendment I am seeking to move arises from, and has been occasioned by, a decision in a divisional court as recently as 25th June of this year, and of course that was too late to allow me to put the amendment down at an earlier stage.

What I seek to do is to make a minor amendment but. I suggest, a not unimportant one, to Section 11 of the Magistrates' Courts Act 1980. That is a section which deals with the situation which arises in a magistrates' court where somebody has been summoned to appear on an information, and fails to do so. Subsection (1) provides that where that happens and where a person is due to appear on a certain date to answer a certain information, if he fails to appear but the prosecutor does appear, the magistrates, if they choose, can proceed to try the case in his absence. What they have to do then is to listen to the evidence. Only if they are satisfied on the evidence that the case is proved can they find that an offence has been committed.

It is obviously necessary to have some system of that kind to deal with a situation where a defendant simply fails to turn up, because otherwise the work of the courts could be frustrated by defendants who persist in not turning up for their trials. But there was one omission from subsection (1) of Section 11; that is, that it did not say what was to happen if an accused person was charged not on one information only but on two informations or more.

It has been supposed, I think, by magistrates' courts, and magistrates' courts clerks in particular, over the last 15 or 20 years that when a person fails to turn up to answer more than one information they can properly deal with the two, three, or however many informations it may be, together. That is the view which has been held for a very large number of years. But as a result of this case, which was heard the other day in the divisional court, that conclusion appears to be erroneous. It was a case entitled Regina v. Hunstanton Justices ex parte T. E. Clayton and E. A. Clayton. The Claytons were man and wife and I am going to confine my remarks, for the sake of simplicity, simply to the case against Mr. Clayton.

There were three informations against him under the Post Office Act 1969 and he failed to appear, although there was no dispute that he knew of the time and date fixed for the hearing of the case. He also knew of the informations which were laid against him. The magistrates proceeded to deal with the cases in his absence under the terms of Section 11. But they made what subsequently turned out to be the basic error of hearing all three informations together. They fined him £50 on each information and he appealed to the divisional court on a question of law. It was argued on his behalf that the magistrates had not been entitled to try the three informations together without his consent and, since he had not been there to give his consent, his consent had not been given. The divisional court, having heard the argument, upheld that contention and decided that they were bound by an earlier decision of the divisional court running right back to 1962. the case of Brangynne v. Evans.

I think it will be sufficient for my purposes if I do what that court did and simply quote the headnote of that 1962 case.

It was a divisional court presided over by Lord Parker, who said this: It has always been a principle of law that a defendant in a magistrates' court can only he called on to answer one charge at a time, unless he consents either expressedly or impliedly to informations being heard together. Accordingly, a magistrates' court should never proceed to hear two or more informations at the same time without expressly asking the defendant whether he consents to that course. That was the perhaps rather surprising decision, in view of the previous history of the matter, that the convictions which had been recorded against Mr. Clayton were invalid and could not be upheld. As I said before, the only reason why Mr Clayton's consent had not been obtained was that he had not been there to give it.

The other point which I suggest should be noted is that, so far as Mr. Clayton was concerned, the outcome of the matter would have been exactly the same if the magistrates had dealt with each of the informations separately. He would have found himself tined £50 on each of the three informations.

Perhaps to finish off the matter, and to emphasise what seems to me the very surprising consequences of that decision. I may quote what was said by Lord Justice Griffiths in his judgment. I am leaving out some words which are not material.

He said: We have some sympathy with the clerk of the justices who has sworn an affidavit pointing out that he has great experience in magistrates' courts sitting at Southampton. Dudley. Birmingham and Coventry, and who says 'In my court experience, stretching back over some 16 years, the practice of dealing with several cases against an accused person which are of a summary nature, frequently motoring offences, is one which has been followed for many years, is widespread throughout the magistrates' courts and is accepted as normal practice in the vast majority of cases'".

Lord Justice Griffiths went on to say: As Mr Fanner"—

who was counsel for the Crown— pointed out, it would have greatly added to the inconvenience of the procedure and taken up needless time if the magistrates in this case had gone through the process of hearing each information separately, pronouncing judgment and then having the same officer re-sworn and proceeding with the evidence on the next information. As Mr Farmer said, if that procedure had to be multiplied many times a day, it would considerably slow down the work of the magistrates' court. So it may, but administrative inconvenience is no good reason for this court to disregard authorities that are binding upon it".

The only other words of Lord Justice Griffiths that I wish to quote are the concluding words. They are, I suggest, particularly significant: Perhaps the damage will not be quite so great as is feared by the clerk to the justices in this case. If it does cause inconvenience, then the remedy must be for the magistracy to consider whether some amendment to that procedure should be placed before Parliament, but that is not a matter for this court".

Finally: On the facts of this case, although for my part I sec absolutely no merit in the applicants' case at all, they are entitled on this technicality to have their convictions quashed".

The whole purpose of my amendment is to do what Lord Justice Griffiths impliedly suggested: that is, to invite Parliament to put right this technical absurdity, as I would suggest it is. The effect of my amendment is simply this. It would add to Section 11(1) of the Magistrates' Courts Act these words: and where the trial of an information so proceeds"— that is, in the absence of the accused— such trial may take place together with the trial of other informations against the accused as the court thinks fit". I beg to move.

Lord Elton

My Lords, the Government do indeed recognise the importance of' the judgment in the case of Regina v. Hunvanton Justices ex parte Clayton. particularly for the work of magistrates' courts, but we do not think that this amendment is sufficient to deal with the problem, nor do we think that it is advanced altogether at an appropriate time.

As to the untimeliness of the amendment, I should point out that, as the noble Lord himself has indicated, the divisional court has certified two points of law as being of general public importance arising in the judgment. It is open to the respondents in the case to apply to your Lordships' House for leave to appeal. We understand that it is probable that such an application will be made. I cannot, of course, foresee the outcome of such an application, but this is a case where the divisional court were not interpreting a point of statute law. They were expressing a view on a basic principle of English law, and there remains an avenue of appeal to a court which might express its own view on that principle. It therefore seems appropriate to the Government to await the outcome of the case before deciding how to proceed.

Even if this approach were not adopted, we would have to oppose the amendment on the ground that it fails to do the job for which it was intended. In attempting to allow a magistrates' court to try several informations together when those informations arise from the same or similar sets of facts, the amendment has in fact gone far too wide. It would, for example, permit a court to try any outstanding information against the defendant, no matter what the circumstances of the offence or the occasion on which it was committed. The only criteria to guide the court would be that the informations were indeed outstanding against him. I am sure that this is not what the noble Lord intended to do, but it is, I regret, what would result from the drafting.

The Government are not unaware of the difficulties to which this particular judgment might give rise in the work of magistrates' courts.

We shall certainly consider the problem further—particularly when we have the views, if any are eventually expressed, of your Lordships' House on appeal from the divisional court. We shall have to consider whether an amendment to statute is indeed necessary to overcome these problems, but we do not want to rush into this without considering all the arguments for and against what the courts have determined to be a basic principle of English law. None the less, I am grateful to the noble Lord for the care with which he has reviewed this matter and brought it to your Lordships' attention. But I would urge your Lordships not to accept this amendment.

Lord Foot

My Lords, of course I accept that. I am glad to hear that the matter is regarded as one of some concern by the Home Office, and that is some consolation at any rate.

On the matter of its still being open to the magistrates to take this matter to the House of Lords on a point of general publicimportance, I would say to the Minister that I know what the question was which was being certified as being of general public importance. It was this: whether the consent of the defendant is necessary in the trial together of' two or more informations. If I may say so, that question does not answer my point. My point is this. If a defendant is absent and not in a position to give his consent, can the magistrates then try a number of informations together or must then try each of them separately? So the question which has been certified does not achieve the object and does not meet the question which I tried to raise here. Having said that, I will leave it there. I am much obliged to the Minister for having considered it even at this very late hour, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 15 [Repeals]:

Lord Elton moved Amendment No. 123: Page 149, line 32, at end insert—

("Section 67(1)(b).".

The noble Lord said: My Lords, Amendments Nos. 123 and 128 simply correct a drafting error in the Bill as it stands. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 124: Page 149, line 33, at end insert—

("1968 c. 19. Criminal Appeal Act 1968 In section 20 the words "(hereafter referred to as "the registrar")".").

The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 33. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 125: Page 149, line 43, at end insert—

("1971 c. 77. Immigration Act 1971. In section 6(5) the words "except in Scotland,", and paragraph (b) and the word "and" preceding it.").

The noble Lord said: My Lords, this is a drafting amendment, and I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 126: Page 150, line 57, at end insert—

("1976 c. 52. Armed Forces Act 1976. In section 13, the words "not exceeding 12 months".").

The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 81. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 127: Page 150, line 57, at end insert—

("1976 c. 63. Bail Act 1976. In Schedule 2, paragraphs 40 and 42.").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 33. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 128: Page 151, line 12 leave Out ("paragraph 10") and insert ("in paragraph 10, the words from "and at"onwards.").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 123. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 129: Page 152, line 28, column 3, at end insert (""respectively" and ""£50" and",")

The noble Lord said: My Lords, this is a drafting amendment designed to ensure the correct repeal of redundant words in Section 46(1)(c) of the Criminal Justice (Scotland) Act 1981. I beg to move.

On Question, amendment agreed to.

Schedule 16 [Transitional provisions]:

Lord Elton moved Amendment No. 130: Page 154, line 6, leave out paragraph 5 and insert— ("5.—(1) A custodial order to which this sub-paragraph applies shall he treated as a youth custody sentence for all purposes of detention, release and supervision of the offender in respect of whom it was made. (2) Sub-paragraph (1) above applies to a custodial order specifying a maximum period of detention which has not expired at the commencement of sections 1 to 16 above—

  1. (a) if the maximum period of detention which it specifies is more than 4 months: or
  2. (b) if—
    1. (i) the maximum period is 4 months or less: and
    2. (ii) the offender is female.

(3) A custodial order to which this sub-paragraph applies shall he treated as a detention centre order for all puposes of detention, release and supervision of the offender.

(4) Sub-paragraph (3) above applies to a custodial order made in respect of a male offender and specifying a maximum period of detention of 4 months or less which has not expired at the commencement of sections 1 to 16 above.

(5) In this paragraph "custodial order" means an order—

  1. (a) under section 71 AA of the Army Act 1955, section 71AA of the Air Force Act 1955 or section 43AA of the Naval Discipline Act 1957; or
  2. (b) under paragraph 10 of Schedule 5A to the Army Act 1955, Schedule 5A to the Air Force Act 1955 or Schedule 4A to the Naval Discipline Act 1957.").

The noble Lord said: My Lords, this brings us back to the forces. This amendment relates to the transitional provision for those young offenders sentenced by armed forces tribunals who are in the custody of the prison department when the Bill comes into force. Those with short sentences are to be treated as if they had been given detention centre orders. One inadvertent effect of this basically straightforward provision is that it could oblige us to hold young women in detention centres. As noble Lords will recall, there are no detention centres for young women. Any young women in custody during the brief transitional period should therefore be treated as if they had been given short youth custody sentences, and that is what this amendment provides. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 131: Page 158, line 9, leave out from ("thereafter") to end of line 11 and insert ("have effect as if it were a requirement imposed under section 4B of that Act specifying as the day centre which the probationer is required to attend the day centre at the premises of the day training centre")

The noble Lord said: My Lords, the purpose of this amendment is to enable a requirement to attend a day training centre, included in a probation order by a court prior to the enactment of this Bill under powers contained in Section 4 of the Powers of Criminal Courts Act 1973, to continue in force as if made under the new Section 4B of the 1973 Act. It will be recalled that the Government introduced the new Section 4B as an amendment in Committee to overcome the courts' lack of power to require probationers to attend a day centre disclosed by their Lordships in the appeal of Cullen v. Rogers. This is a consequential amendment which should have been introduced with the new Section 4B.

We are indebted to the chief probation officers with day training centres in their area who alerted us to the necessity for this amendment. As the Bill stands and without this amendment, it would be necessary for probationers attending the four day training centres, or awaiting a place on a course, to be taken back before the courts for a fresh requirement to be made under the new Section 4B to the 1973 Act. The amendment will also enable probationers with a requirement in force when the Bill is implemented to be taken back to court under the new legislation if they fail to comply with a requirement to attend a day centre. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 132: In the Title, line 12, after ("persons") insert ("and to the grant of bail to persons convicted or sentenced in the Crown Court")

The noble Lord said: My Lords, I spoke to this with Amendment No. 33. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 133: In the Title, line 12, after ("abolish") insert ("subject to savings")

The noble Lord said: My Lords, this is a purely technical amendment to deal with a point made by my noble friend Lord Renton on Report. It makes clear in the Title that the right to make an unsworn statement is not to be totally abolished. An unsworn defendant will still be able by virtue of subsection (1) of Clause 71 to make any statement which he is required by law to make personally, and a statement made after the verdict and before sentence by way of mitigation. I beg to move.

On Question, amendment agreed to.

[Amendment No. 134 not moved.]

11.24 p.m.

Lord Elton

My Lords, I beg to move that this Bill do now pass.

Lord Elwyn-Jones

My Lords, is the noble Lord going to address the House?

Lord Elton

My Lords, I think it is normal for the Minister bringing the Bill to the House to speak first. As I am now up perhaps your Lordships will permit me to do that. Our labours have been long. I think your Lordships would prefer my concluding remarks to be brief.

Your Lordships received from another place a Bill of 62 clauses. We are about to return for approval there a Bill of over 80 clauses. Your Lordships' work has been thorough and productive—and by no means entirely directed by party allegiance. While some of your Lordships would wish that the Bill could have achieved more, it really cannot be claimed that what it does achieve is of little account. It will imprint indelibly upon the statute book that custody is a measure of last resort. It will give to courts both a greater control over the duration of custody when it is applied and a greater range of alternatives to custody to reduce its application. It has provided for the use of the most restrictive accommodation under a care order. It has entailed a thorough revision of the powers under which probation orders are made. It abolishes the anachronisitic unsworn statement from the dock. It has been the occasion of close scrutiny of the means and acceptability of shortening the minimum qualifying period for parole. It has, without having recourse to custody, strengthened the powers of the courts to deal with young offenders in care who re-offend. It has strengthened the powers also in prescribing the supervision of young offenders. It widens the power of suspending sentences in part. It provides for a saving in the number of productions of unsentenced prisoners for bail hearings, but only permits its application with their consent. It does a great deal more of a technical nature to facilitate both existing procedures and future legislation.

As a result of proceedings in your Lordships' House, the Bill gives courts greater flexibility in the deferment of sentences. It has made legal aid available for care order cases. It has strengthened the social inquiry report requirements. It has placed strict limitations on the holding of juveniles in prison. It enables the court to require a person in care to spend the night hours, when he may be most particularly at risk, in a specified place, and it provides a readier access to bail for prisoners whose cases are pending appeal.

The Bill has provided a challenging exercise for your Lordships in what was at first, for me, a new field and for all of us one of the utmost importance. I am greatly obliged to your Lordships not only for the thorough and often selfless work your Lordships have put into the Bill, but also for the courteous and patient way in which you have contributed from your collective wealth of experience to the improvement of my own knowledge and understanding. It leaves us with a Bill that is one-third larger and, I hope, a little more than one-third better than when it came to us. I hope your Lordships will join me in wishing it well.

Moved, That the Bill do now pass.—(Lord Elton).

Lord Elwyn-Jones

My Lords, at this valedictory stage I know that the House will join with me in thanking the noble Lord, Lord Elton, for the way in which he has borne the heavy burden of conducting this case through the House, which he has done with courtesy, patience, thoroughness and sense of humour. Heaven knows, that was called for from time to time, not only from the Government Front Bench but from the Opposition Front Bench.

In the circumstances, I think it is appropriate that I should acknowledge, on behalf of noble Lords from each side of the House, the assistance that we have received from a number of organisations working in the sphere of criminal justice, particularly the National Association for the Care and Resettlement of Offenders, the National Association of Probation Officers, the Justices' Clerks' Society, the Association of Directors of Social Services and the Children's Legal Centre. It may also be appropriate to pay tribute to the work of the Parliamentary All-Party Affairs Group, in which members of all parties have played a notable part and I have little doubt have been partly responsible for the beneficial changes that have been made to the Bill during its progress through the House.

Many individual provisions of the Bill are sensible. A small number are retrograde. However, the main criticism of the Bill concerns what has been left out. It contains no measure to tackle the prison crisis effectively and, consequently, represents a tragically missed opportunity.

Lord Wigoder

My Lords, it has sometimes seemed today that any resemblance between our proceedings and a normal Third Reading has been purely coincidental. At this late hour I shall confine myself to two short observations. First, my noble friend Lord Harris of Greenwich and I owe it to your Lordships to explain in a sentence why the amendment we tabled on Report and on Third Reading dealing with disqualifications for jury service was not moved. It was an attempt to deal with the very serious and increasing problem of jury nobbling, of interference with juries, by ensuring that persistent or serious criminals were not available for jury service.

I believe that the amendment would have won widespread support both inside and outside your Lordships' House. However, there were those who took the view that, interesting though the amendment was, it was not relevant to the subject matter of the Bill. That appeared to the noble Lord, Lord Harris, and myself to be an arguable matter. However, it appeared also that if we were to pursue our amendment as regards this Bill it would have meant indulging in something of an altercation on a procedural issue across the Floor of your Lordships' House, and neither of us thought that that was appropriate. In those circumstances we decided not to move that amendment. Perhaps I might be allowed to say that we shall await with great interest what the Government propose to do about this urgent matter in the next Session of Parliament. If the Government do not make positive proposals, then my noble friend and I will have no alternative but to proceed directly in your Lordships' House.

The other observation that I want to make is by way of conveying congratulations from my noble friends, and I am sure from all in the House, to the noble Lord, Lord Elton, for the way in which he has conducted this Bill. It is a better Bill than it was when it came to us. The amendments that have been carried have improved it. Some have been carried against the advice of the noble Lord, Lord Elton, but many of them have been carried as a result of the careful, kind and constructive consideration which he has at all times given to the arguments that have been urged upon him. I should like to say how very grateful we all are to him for the part that he has played in securing those amendments.

11.31 p.m.

Lord Donaldson of Kingsbridge

My Lords, I should like to associate myself with the other speakers. We are grateful to the noble Lord for his courtesy and for the friendly way in which he has dealt with the Bill. It is longer and better than when it came to us. But I must say that I am filled with absolute despair when I look back at the opportunities missed. What we should have done is to have passed the amendment of the noble Lord, Lord Hunt, which would, at a stroke—if I may coin a phrase—have taken between 6,000 and 7.000 out of the prison population. Equally, we should today—and we missed by only three votes—have passed the amendment of the noble Lord, Lord Harris, which would have taken a couple of thousand out and made the situation tolerable. However, I do not want to go on about this matter.

In view of the time and energy spent on this Bill, I believe it is dreadful that a Bill of this kind should pass without a single step being taken in regard to the only thing that is important. Only two measures in the Bill are of any relevance to the matter as a whole; they are Clauses 32 and 33, which give the Home Secretary power to do certain things. I wish just to say that if he does them, and I think that he will have to do them, he will have our fullest support.

On Question, Bill passed, and returned to the Commons.