Criminal Justice Bill [H.L.]

HL Deb 23 November 1987 vol 490 cc410-527

2.44 p.m.

The Minister of State, Home Office (The Earl of Caithness)

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

Moved, That the Bill be further considered on Report.—(The Earl of Caithness.)

On Question, Motion agreed to.

Schedule 7 [Compensation]:

[Amendments Nos. 67, 68 and 69 not moved.]

The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 69A:

Page 121, line 14, at end insert ('except that the Board may in exceptional circumstances waive this requirement").

The noble and learned Lord said: My Lords, this amendment follows the debate in Committee on the question of the time limit for making a claim. It appeared right that the board's discretion to allow a further claim to be made after a determination in a claimant's condition more than three years after the award is made should be restored. We are not yet satisfied that paragraph 2 is in the clearest form and there may be an opportunity at a later stage of the Bill to improve it without altering its substance.

Perhaps I may also make reference to Amendment No. 70, standing in the name of the noble Lord, Lord Morton of Shuna. We do not accept that it would be appropriate to allow a decision to be that of the chairman of the board rather than of the board itself. I should also say that the decision to be final in all cases is not in our view appropriate. In the case of an award under Clause 103(6) to which this amendment is directed, where there is a deterioration the extent of that deterioration may be an issue in regard to the board's discretion. In that matter we do not feel that the board's decision should necessarily be final. I beg to move.

Lord Morton of Shuna

My Lords, I am pleased that the Government have made this amendment. I should like to take this opportunity of restating my interest in the matter as a member of the Criminal Injuries Compensation Board. I am also pleased to hear that the Government consider that the wording is not quite right. While I am on my feet, perhaps I may also say how pleased I am that the Government are going to do something about finality. That being so I shall not be moving Amendment No. 70.

On Question, amendment agreed to.

[Amendment No. 70 not moved.]

The Chairman of Committees (Lord Aberdare)

My Lords, if Amendment No. 70A is agreed to, I cannot call Amendment No. 71.

Lord Cameron of Lochbroom moved Amendment No. 70A: Page 121, line 26, leave out sub-paragraphs (3) and (4).

The noble and learned Lord said: My Lords, in Committee we expressed a certain sympathy with the noble Lord, Lord Morton, when he warned that the provision made in subparagraph (4) of paragraph 3 would prove cumbersome in practice. Indeed that was not the intention behind this provision. Rather we sought to enable hearings to be held on limited issues prior to a claim being determined. We have looked at the matter again. We think that these provisions may prove to be insufficiently flexible in practice. For that reason we propose to delete subparagraphs (3) and (4) and also by means of Amendment No. 86A to make provision for the procedure for processing claims to be made in rules under paragraph 17 of the schedule. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 71 and 72 not moved.]

Lord Morton of Shuna: moved Amendment No. 73: Page 122, line 17, leave out ("only").

The noble Lord said: My Lords, perhaps I may speak at the same time to Amendment No. 74. Paragraph 5 to Schedule 7 says: The Board may only defer the determination of a claim on the ground that criminal proceedings are current if they consider that the proceedings are likely to be material to their determination of the claim". The purpose of the amendment is to allow the board to defer determination if it considers that the proceedings are likely to be prejudiced by the determination of the claim. I should have thought that it is fairly obvious that if the board makes an award or refuses to make an award before a court decides whether there is a good defence or there is guilt it could only prejudice the situation. One imagines a complainer coming in and being asked by the defence, "Is it the position that the Criminal Injuries Compensation Board has refused your claim?" That might well affect the jury on its attitude to the guilt or innocence of the accused, and it is for that purpose that I beg to move this amendment.

Lord Cameron of Lochbroom

My Lords, we take the view that in principle the board should proceed to deal with the claim as soon as it is made while matters are fresh and not keep a claimant out of compensation. We do not consider that the board should delay its determinations solely because of the fear that its determination might prejudice some future proceedings. In practice, we do not believe that any determination by the board is likely to have that effect. Provided the board is satisfied that evidence exists to support a claim then it should proceed to a determination. Of course, in any case where the board has doubts about the validity of a claim, or where evidence before the board conflicts, the board will have the power under the existing wording to defer their determination until it has the opportunity to consider the evidence given in criminal proceedings.

In passing, in the course of debate in Committee the noble Lord instanced a case. I should have thought that that was a case where matters were material to the board's determination of the claim and were likely to arise in the criminal proceedings and therefore would justify deferring a decision while criminal proceedings are in course. Our view is that the existing wording allows the board ample discretion to postone its determination in any case where criminal proceedings may affect its own decision. On the other hand, the noble Lord's amendments would, in our view, unduly widen that discretion. That could result in unnecessary delay in the board coming to conclusions and thus withholding compensation to which a victim was justly entitled under the scheme.

Lord Morton of Shuna

My Lords, I do not intend to press this amendment to a vote; but I find it surprising that the Government are willing to contemplate the position that the board may make an award to a person prior to a trial. At the trial the person claiming may be found to have been the attacker and a defence of self-defence upheld, and therefore a wrong payment made. But if that is the Government's wish, so be it; and I withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 74 not moved.]

Lord Morton of Shuna moved Amendment No. 75:

Page 122, line 36, leave out from ("to") to the end of line 40 and insert— ("clothing and any personal adjuncts arising from the injury to which the claim relates, but personal adjuncts do not include jewellery, watches or rings and compensation shall not he payable under paragraph (b) above for any other loss of or damage to property.")

The noble Lord said: My Lords, this is an amendment which I would press. At present under the scheme the board can compensate for loss of clothing which is damaged, lost, or destroyed as a result of an assault. One frequently gets cases of, for example, an old-age pensioner being mugged and their clothing—possibly their winter coat—is damaged so as to be useless. The same situation applies to the unemployed and to the single parent.

It may be that this sort of loss is relatively insignificant to those of us who are relatively well off, but it is a very mean approach to the old-age pensioner and others. On the best estimate last year it cost something like £400,000 out of a total expenditure by the board of over £50 million. I should have thought that as this House (and I am sure everybody in the country) wishes to be reasonable towards victims of crimes of violence it is appropriate that those who have had their clothing destroyed or damaged should remain entitled to be compensated for it.

The scheme as laid out in the schedule talks of compensation being payable only: "if he relied on the property as a physical aid". Whether clothing is or is not a physical aid I suppose depends on the weather, but I should have thought that it should be fairly definite that clothing should be compensated for. I beg to move.

Lord Irvine of Lairg

My Lords, I would add a few words of my own in support of this amendment moved by the noble Lord, Lord Morton of Shuna. This may be thought to be a small point, but surely it is an important one. Your Lordships may think that it is mean-minded that the board is to lose the power that it presently has to compensate people for loss of clothing suffered when they incur criminal injury. It is well known that most victims of crime are among the less well off in society. No doubt all of us in this House could reach into our pockets and replace a ruined overcoat, or something of that kind, without great difficulty. However, there are many people—especially, as the noble Lord says, the old—who are not so fortunate.

If the Government are really concerned, as the noble and learned Lord the Lord Advocate claimed at Committee stage, about the disproportionate administrative cost of processing very small claims, then they could have set a minimum figure below which claims would not be considered. Insurance companies in practice do something rather similar. The Government have not done so. Surely on this occasion the Government could show some generosity of spirit and maintain the status quo. Could we be told why not?

Lord Elwyn-Jones

My Lords, I rise to support this amendment. It is a modest, humane and helpful provision for those who tend to be victims so frequently of crime, and who, in the course of violent attack, are liable to suffer injury to clothing, which in the winter in particular is indispensable to them. As my noble friend has said, one thinks especially of old-age pensioners. It would not be a costly provision. I hope that the Minister, who is a humane character I know, will pay due regard to this and give effect to this amendment.

Lord Cameron of Lochbroom

My Lords, I heard the noble Lords opposite, but in this Bill we are putting on to a statutory footing a scheme which exists to compensate innocent victims for personal injuries caused by crimes of violence. The fact that loss or damage to clothing but not loss or damage to other property has been the subject of compensation under the present scheme has long been recognised as an anomaly. When an administrative scheme is to be put on to a statutory basis it is surely the right time to review the scope of the arrangements and to remove obvious and recognised anomalies.

This is not just a matter of direct economies or administrative tidiness. The board now handles over 40,000 applications for compensation for personal injury a year. A significant amount of time of the staff of the board is diverted from the main purpose of the board, which is to compensate for personal injury, to examining thousands of claims a year for loss of damage to clothing. In order to ensure that public funds are not misused, the board is obliged to see that these claims are properly assessed and checked. That means to say that receipts for mending and cleaning have to be obtained and an assessment made of the value of part-worn clothing. The average payments made for loss, cleaning and repairs of clothing as a result of these labour is between £15 and £20.

Reference was made to meanness of approach and the like. However, I have to say that the Criminal Injuries Compensation Board itself, when it gave evidence to the interdepartmental working party recently, recommended that payment of compensation for clothing should cease, and that not just because of the diversion of resources but also because it was outwit the scope of a personal injuries scheme. Of course that was a view that was endorsed by the working party.

I also draw one other matter to your Lordships' attention. Since the present scheme was set up in 1964, there has been a lower limit of award. That now stands at £550, so when a person suffers, say, a broken nose in an assault and may receive in due course an award of upwards of £550 with payment of additional compensation for cleaning his bloodstained clothing, he of course secures such additional compensation. But his unfortunate fellow victim who suffers a nasty laceration and has his clothing also damaged but who fails to qualify for the personal injury payment gets no compensation.

It was suggested that there is an illogicality in the reference to physical aids. It is far from that; I believe that it is a perfectly appropriate matter for inclusion within the scheme. The aids include hearing aids, false teeth or artificial hips, and they are substitutes for the physical attributes of a normal, healthy person.

I believe that they fall within the concept of personal injury. However, while we have paid attention to what noble Lords opposite have said and have considered the matter, we have come to the view that the recommendation of the interdepartmental working party, which was reached after receiving evidence, is the appropriate view for what is to be a scheme placed upon a statutory basis. I regret, therefore, that I cannot accept the amendment.

Lord Morton of Shuna

My Lords, I regret the Government's attitude. I do not think that I can say any more about the matter and I must seek the opinion of the House. I beg to move.

3.1 p.m.

On Question, Whether the said amendment (No. 75) shall be agreed to?

Their Lordships divided: Contents, 76; Not-Contents, 100.

DIVISION NO. 1
CONTENTS
Airedale, L.	Kennet, L.
Amherst, E.	Kilmarnock, L.
Banks, L.	Kirkhill, L.
Basnett, L.	Leatherland, L.
Birk, B.	Listowel, E.
Bottomley, L.	Llewelyn-Davies of Hastoe, B.
Briginshaw, L.	Lloyd of Kilgerran, L.
Broadbridge, L.	Lockwood, B.
Bruce of Donington, L.	McNair, L.
Burton of Coventry, B.	Mais, L.
Callaghan of Cardiff, L.	Masham of Ilton, B.
Carmichael of Kelvingrove, L.	Molloy, L.
Cledwyn of Penrhos, L.	Morton of Shuna, L.
Cocks of Hartcliffe, L.	Nicol, B.
David, B.	Ogmore, L.
Dean of Beswick, L.	Ponsonby of Shulbrede, L. [Teller.]
Diamond, L.	Rea, L.
Donaldson of Kingsbridge, L.	Ripon, Bp.
Dormand of Easington, L.	Ritchie of Dundee, L.
Elwyn-Jones, L.	Sainsbury, L.
Ewart-Biggs, B.	Seear, B.
Falkland, V.	Serota, B.
Fisher of Rednal, B.	Shepherd, L.
Fletcher, L.	Silkin of Dulwich, L.
Foot, L.	Stallard, L.
Gallacher, L. [Teller].	Stedman, B.
Gladwyn, L.	Stoddart of Swindon, L.
Graham of Edmonton, L.	Strabolgi, L.
Grey, E.	Taylor of Blackburn, L.
Hampton, L.	Taylor of Mansfield, L.
Harris of Greenwich, L.	Tordoff, L.
Hooson, L.	Underhill, L.
Hughes, L.	Wallace of Coslany, L.
Hunt, L.	Wedderburn of Charlton, L.
Hutchinson of Lullington, L.	White, B.
Irvine of Lairg, L.	Wigoder, L.
Jenkins of Putney, L.	Williams of Elvel, L.
John-Mackie, L.	Wilson of Rievaulx, L.

NOT-CONTENTS
Allerton, L.	Kaberry of Adel, L.
Ampthill, L.	Kinloss, Ly.
Arran, E.	Kitchener, E.
Beaverbrook, L.	Lane-Fox, B.
Belhaven and Stenton, L.	Lauderdale, E.
Beloff, L.	Long, V.
Belstead, L.	Lurgan, L.
Benson, L.	Lyell, L.
Blyth, L.	Mackay of Clashfern, L.
Boyd-Carpenter, L.	Mar, C.
Brougham and Vaux, L.	Margadale, L.
Broxbourne, L.	Marsh, L.
Butterworth, L.	Merrivale, L.
Caithness, E.	Mersey, V.
Cameron of Lochbroom, L.	Montgomery of Alamein, V.
Campbell of Alloway. L.	Moran, L.
Campbell of Croy, L.	Morris, L.
Carnock, L.	Mottistone, L.
Constantine of Stanmore, L.	Mountevans, L.
Cottesloe, L.	Mowbray and Stourton, L.
Cox, B.	Munster, E.
Crickhowell, L.	Nelson, E.
Cromartie, E.	Nugent of Guildford, L.
Cullen of Ashbourne, L.	Orkent, E.
Davidson, V. [Teller.]	Plummer of St Marylebone, L.
Denham, L. [Teller.]
Denning, L.	Porritt, L.
Dilhorne, V.	Rodney, L.
Dudley, B.	Romney, E.
Dundee, E.	Rugby, L.
Effingham, E.	St. Davids, V.
Ellenborough, L.	Saint Oswald, L.
Elliot of Harwood, B.	Saltoun of Abernethy, Ly.
Erroll of Hale, L.	Seebohm, L.
Faithfull, B.	Simon of Glaisdale, L.
Fortescue, E.	Skelmersdale, L.
Fraser of Kilmorack, L.	Slim, V.
Glenarthur, L.	Somers, L.
Gray of Contin, L.	Strathcarron, L.
Gridley, L.	Strathcona and Mount Royal, L.
Hailsham of Saint Marylebone, L.	Strathspey, L.
Harmar-Nicholls, L.	Sudeley, L.
Havers, L.	Terrington, L.
Hayter, L.	Trafford, L.
Headfort, M.	Tranmire, L.
Hesketh, L.	Vaux of Harrowden, L.
Hives, L.	Whitelaw, V.
Home of the Hirsel, L.	Wise, L.
Hooper, B.	Wynford, L.
Hylton-Foster, B.	Young of Graffham, L.
Johnston of Rockport, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.10 p.m.

Lord Morton of Shuna moved Amendment No. 76: Page 123, line 15, leave out ("essential") and insert ("reasonable and necessary").

The noble Lord said: My Lords, this amendment relates to paragraph 6 (5) which gives the board power to authorise payment for private medical treatment only if it is satisfied that the treatment was, or is, essential. The amendment takes out the word "essential" and puts in the words "reasonable and necessary".

At the Committee stage, I raised the question of the purpose served by the "essentialness" and asked what treatment was to be considered essential. Many situations which must be considered are cases where, under the National Health Service, waiting lists for treatment can occasion long delays. At what stage does the delay become essential? Is two years "essential", or does the period have to be three years?

Private treatment for scarring can entail very considerable delays. For various other types of injury, questions arise as to whether or not the National Health Service will pay. For example will it pay for someone to have false teeth but not to have a bridge? It is very difficult to set a standard as to whether or not that kind of treatment is essential.

In proposing the words "reasonable and necessary", I have endeavoured to give some measure of discretion to the board to work out whether it is appropriate in the proper circumstances to pay for that kind of private treatment. I beg to move.

Lord Cameron of Lochbroom

My Lords, as it presently stands the paragraph is intended to secure that the board should have a discretion to pay the reasonable costs of private medical treatment but only where it is satisfied that such treatment is, or was, essential. That was the conclusion of the interdepartmental working party. It was a conclusion which in our view was correct. We feel that the board should not normally be expected to pay for private medical treatment and that the payment for such treatment should only be made in exceptional circumstances and where the costs are reasonable. The board would have the opportunity, as the paragraph is presently framed, to apply its judgment to the particular case in the light of the medical evidence as to whether the treatment is essential.

The amendment put forward by the noble Lord opposite seeks to substitute three words for one. That is perhaps a departure from his normal complaint that we usually put too many words in a Bill. I was interested enough to go to the Oxford English Dictionary to discover the definition of the word "necessary". I found that it is an adjective which means "indispensable, requisite, essential, needful". In his amendment the noble Lord wishes to include a word which means precisely the same as "essential" and then to add to it the word "reasonable". So he would require two tests instead of one, on which I should have thought that the board could well use its discretion in the normal way. For those reasons among others we cannot accept this amendment.

Lord Morton of Shuna

My Lords, I regret the Government's attitude on this matter. There is something slightly odd when the Government say that treatment should be under the National Health Service and from this side of the House I argue that in certain circumstances health care should be paid for. If the Government are saying that "essential" means the same as "needful" or "requisite", I shall be quite happy; but in that case perhaps they will bring in an amendment to the Oxford English Dictionary.

However, the best answer may be to ask leave to withdraw this amendment and try to find a better word at the next stage of the proceedings. Accordingly I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 77 and 78 not moved.]

3.15 p.m.

Lord Morton of Shuna moved Amendment No. 79: Page 123, line 26, leave out sub-paragraph (8).

The noble Lord said: My Lords, I suggest that this amendment is necessary and the noble and learned Lord opposite will perhaps agree. For the purposes of this paragraph, the appropriate jurisdiction lies in Scotland in the case of an injury sustained there and in England and Wales in the case of an injury sustained anywhere else. If, therefore, a fishing boat with a wholly Scottish crew sets out from Peterhead or Buckie and has an accident, is one to apply the law of England and Wales to that purely Scottish accident? There is a mistake somewhere. I suggest that sub-paragraph (8) is unnecessary anyway. I beg to move.

Lord Cameron of Lochbroom

My Lords, I should like to confirm to the House that it is the intention that the appropriate law shall depend in the first instance on the place where the injury is sustained. Thus, if it were in England, Wales or English territorial waters, then English law would apply. Equally, where the incident occurs in Scotland or within Scottish territorial waters, the matter would be governed by the law of Scotland.

However, there are other areas to be covered. Offshore installations are covered by Clause 102 (2) which specifies the circumstances in which Scottish law will apply. There is also the area that concerns ships which are outwith British territorial waters, so far as claims are concerned. It is our intention that in those circumstances the proper law shall be determined by the place of registration. I accept that at present such intention is not covered by the provisions in the Bill. That being so, while we cannot accept the amendment as it is presently drafted, we do accept that this matter is one that requires amendment. I assure the House that an appropriate amendment is under consideration and in due course will be brought forward. With that assurance perhaps the noble Lord will feel able to withdraw his amendment.

Lord Morton of Shuna

Certainly, my Lords. In the face of that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80 not moved.]

Lord Morton of Shuna moved Amendment No. 81: Page 124, line 18, leave out ("one-and-a-half ') and insert ("twice")

The noble Lord said: My Lords, this amendment is another example of the "generosity" of the Government towards the victims of crimes of violence. The maximum contribution for loss of earnings which at present stands at twice the national average wage is to be reduced by this scheme to one and a half times that figure. It would appear appropriate that the compensation should remain as it is; namely, that there should be a maximum level which should be twice the national average. I beg to move.

Lord Irvine of Lairg

My Lords, I desire to add a few words in support of the remarks made by the noble Lord, Lord Morton. In particular I desire to deal very shortly with the arguments that were put before the Chamber at Committee stage by the noble and learned Lord the Lord Advocate. He said that the rationale for reducing the multiplier from two to one-and-a-half was that the better off ought to have made provision for themselves against loss. He also said that the victim would have to be earning £23,000 a year in order to be affected. It is possible to earn that much but to be far from wealthy. For example, if one has a mortgage, to be kept off work by a criminal assault my lead to serious hardship.

More importantly, I should like to ask for two assurances which I also sought at Committee stage but which I did not receive. First, can the noble and learned Lord confirm that the power contained in paragraph 11(3), which allows the Secretary of State to vary the statutory multiplier, will be exercised only to increase that multiplier? Or does the noble and learned Lord the Lord Advocate say that it may be used to reduce it below one-and-a-half? That is a distinct question to which I should welcome an answer.

Secondly, can be assure the House that the power under paragraph 11(2) to specify the average wage from time to time will be regularly exercised so as to ensure that the power to give real compensation for loss of earnings will not become eroded by inflation? Those are two distinct questions which I asked during the Committee stage and received no answer. I invite answers now.

Lord Cameron of Lochbroom

My Lords, let me just explain to your Lordships, who may not be entirely familiar with the part that this plays in the assessment of compensation, that this is an area in which we are dealing with calculation of loss of support that may arise following injury. The normal course is for the board to consider how long it is likely that the injury will play a part in preventing an individual who has been injured from returning to full employment. To do that it requires to do two things: first, it requires to take a figure for his earnings; and, secondly, it then has to muliply that by a figure which it considers to be the appropriate multiplier expressed in years.

What we are doing here is dealing with the first figure, and the figure which is expressed as one-and-a-half times the gross industrial wage in the Bill is a figure which has been the subject of a recommendation by two interdepartmental working parties that have considered this issue. Obviously some compensation for loss of earnings is appropriate in a scheme of this sort, but the Government's view is that it should not be such that the scheme is seen to be paying out large sums in compensation for loss of earnings to those with very high incomes, while those on low incomes or out of work are paid small amounts or nothing at all.

To put the matter in figures, the figure for the gross earnings, which is to be taken as the upper limit, is to be set at £23,000 a year. That would leave at present about 70 per cent. of full-time earners unaffected. That seems to us to represent a perfectly reasonable level at which lost earnings would be fully compensated by the board.

The noble Lord opposite raised in Committee two points to which I accept I did not then respond. As regards the first, obviously I can give no guarantee as to what any Secretary of State may do. The power in sub-paragraph 11(3) is of course one which would enable the multiplier to be decreased as much as increased. But I have to say, as is plain from the terms of the Bill, that the use of the power will be subject to parliamentary procedures.

As regards the second point which the noble Lord put to me, it is the existing practice of the board to make use of published figures for the gross average industrial wage. It is certainly the intention of my right honourable friend the Home Secretary regularly to specify what that figure should be for the purpose of the statutory scheme. For the principal reasons which I have already outlined, I cannot accept this amendment.

Lord Morton of Shuna

My Lords, I regret that the noble and learned Lord has not seen fit to accept this amendment. I also regret that he did not seem to me to answer the point made by the noble Lord, Lord Irvine of Lairg. What I think the noble Lord was interested in was whether the multiplier is going to come down from one-and-a-half to one or to three-quarters or something of that nature. Also I would point out that the working party acted contrary to the recommendation of the chairman of the board and, if I may, I should like to read from paragraph 14.3 of the working party's report. It reads: We are conscious that our recommendation is at variance with the view of the chairman of the board who in giving evidence to the House of Commons Select Committee on Home Affairs in July 1984 argued that the limit was too low". In my view also it is too low and I regret that I must trouble the House again in order to seek your Lordships' views on this amendment.

3.24 p.m.

On Question, Whether the said amendment (No. 81) shall be agreed to?

Their Lordships divided: Contents, 78; Not-Contents, 105.

DIVISION NO. 2
CONTENTS
Airedale, L.	Fletcher, L.
Allen of Abbeydale, L.	Foot, L.
Amherst, E.	Gallacher, L. [Teller.]
Ardwick, L.	Galpern, L.
Aylestone, L.	Gladwyn, L.
Banks, L.	Graham of Edmonton, L.
Basnett, L.	Grey, E.
Birk, B.	Hampton, L.
Bonham-Carter, L.	Harris of Greenwich, L.
Briginshaw, L.	Hayter, L.
Bruce of Donington, L.	Hooson, L.
Callaghan of Cardiff, L.	Houghton of Sowerby, L.
Carmichael of Kelvingrove, L.	Hughes, L.
Cledwyn of Penrhys, L.	Hunt, L.
Cocks of Hartcliffe, L.	Hutchinson of Lullington, L.
David, B.	Irvine of Lairg, L.
Davies of Penrhys, L.	Jenkins of Putney, L.
Dean of Beswick, L.	John-Mackie, L.
Diamond, L.	Kennet, L.
Dormand of Easington, L.	Kilmarnock, L.
Elwyn-Jones, L.	Kirkhill, L.
Ewart-Biggs, B.	Leatherland, L.
Falkland, V.	Listowel, E.
Fisher of Rednal, B.	Llewelyn-Davies of Hastoe, B.

Lloyd of Kilgerran, L.	Seear, B.
Lockwood, E.	Serota, L.
Longford, E.	Shepred, L.
McNair, L.	Silkin of Dulwich, L.
Maris, L.	Stallard, L.
Molloy, L.	Stedman, L.
Morton of Shuna, L.	Stoddart of Swindon, L.
Nicol, L.	Strabolgi, L.
Ogmore, L.	Tordoff, L.
Paget of Northampton, L.	Underhill, L.
Ponsonby of Shulbrede, L. [Teller.]	Wallace of Coslany, L.
	Wedderburn of Charlton, L.
Rea, L.	White, B.
Ritchie of Dundee, L.	Wigoder, L.
Rugby, L.	Ypres, E.
Sainsbury, L.

NOT-CONTENTS
Allerton, L.	Kaberry of Adel, L.
Ampthill, L.	Kinloss, Ly.
Arran, E.	Kitchener, E.
Beaverbrook, L.	Lane-Fox, B.
Belhaven and Stenton, L.	Lauderdale, E.
Belstead, L.	Lewin, L.
Benson, L.	Long, V.
Birdwood, L.	Lurgan, L.
Blyth, L.	Lyell, L.
Borthwick, L.	Mackay of Clashfern, L.
Boyd-Carpenter, L.	Macleod of Borve, B.
Broadbridge, L.	Mar, C.
Brougham and Vaux, L.	Margadale, L.
Broxbourne, L.	Marsh, L.
Butterworth, L.	Merrivale, L.
Caccia, L.	Mersey, V.
Caithness, E.	Montgomery of Alamein, V.
Cameron of Lochbroom, L.	Morris, L.
Campbell of Alloway, L.	Mottistone, L.
Campbell of Croy, L.	Mountevans, L.
Carnock, L.	Mowbray and Stourton, L.
Constantine of Stanmore, L.	Munster, E.
Cottesloe, L.	Murton of Lindisfarne, L.
Cox, B.	Nelson, E.
Crickhowell, L.	Nugent of Guildford, L.
Cullen of Ashbourne, L.	Orkney, E.
Davidson, V. [Teller.]	Plummer of St Marylebone, L.
Denham, L. [Teller.]	Porritt, L.
Denning, L.	Rodney, L.
Dilhorne, V.	Romney, E.
Dudley, B.	St. Davids, V.
Dundee, E.	Saint Oswald, L.
Effingham, E.	Saltoun of Abernethy, Ly.
Ellenborough, L.	Sanderson of Bowden, L.
Elliot of Harwood, B.	Seebohm, L.
Erroll of Hale, L.	Simon of Glaisdale, L.
Faithfull, B.	Skelmersdale, L.
Fortescue, E.	Somers, L.
Fraser of Kilmorack, L.	Strathcarron, L.
Gainford, L.	Strathcona and Mount Royal, L.
Glenarthur, L.
Gray of Contin, L.	Strathspey, L.
Gridley, L.	Sudeley, L.
Hailsham of Saint Marylebone, L.	Terrington, L.
	Teviot, L.
Harmar-Nicholls, L.	Trafford, L.
Havers, L.	Tranmire, L.
Headfort, M.	Vaux of Harrowden, L.
Hesketh, L.	Whitelaw, V.
Hives, L.	Wise, L.
Home of the Hirsel, L.	Wyatt of Weeford, L.
Hooper, B.	Wynford, L.
Hylton-Foster, B.	Young of Graffham, L.
Johnston of Rockport, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.32 p.m.

Lord Morton of Shuna moved Amendment No. 82: Page 124, line 46, after ("for") insert ("wholly or partly").

The noble Lord said: My Lords, this amendment relates to the deduction of insurance benefits. Under paragraph 12 of this schedule any compensation has to have deducted from it any benefit. "Benefit" is defined as including social security benefits and benefits payable under insurance arrangements other than private insurance arrangements.

It is to the definition of "private insurance arrangements" that this amendment is directed because the only private insurance arrangements that are to be ignored are those where the whole premium has been paid by the person who was injured or his spouse or what could be described as his notional spouse.

Of course there are many insurance arrangements where part of the premium is paid by the employer and part by the employee. It is to cover that kind of situation that I move the insertion of the words "wholly or partly" into the definition of private insurance arrangements so that such insurance would not be deducted from awards.

Baroness Seear

My Lords, what is the difference between a common-law wife and a notional spouse? Why are we talking about a notional spouse? It is a most revolting expression.

Lord Morton of Shuna

My Lords, I am sorry if that word was revolting to the noble Baroness. It was not intended to be anything other than a shorthand way of arriving at the definition under heading (c) of paragraph 12 which is a rather long way round of putting it. It did not imply that "spouse" covers both husbands and wives, common-law or otherwise. It was not intended to refer only to women.

Lord Cameron of Lochbroom

My Lords, the present scheme allows pension rights and insurance benefits to be disregarded only where they accrue solely as the result of payments by the victim or by a dependant. The noble Lord, Lord Irvine of Lairg, inquired during debate in Committee on identical amendments whether it was intended that the statutory scheme, like the present scheme, should exclude arrangements to which an employer had contributed. The answer is yes. The inclusion of the words "wholly or partly" in both instances would allow the claimant or his dependant to avoid a reduction being made by the board in respect of his private insurance or pension arrangements where part—perhaps a large part—of the contributions had been made by some third party. We believe that arrangements of that kind (which are not wholly private arrangements) should be taken into account by the board in the future as they are now. Therefore I cannot accept the amendments.

I should say that it was not our intention to exclude the situation where the parties described in the sub-paragraphs subscribe partly or wholly to each other's private pension or insurance arrangements. For that reason Amendments Nos. 82A and 84A in my noble friends' name are there to make that position clear. For those reasons, I cannot accept this amendment.

Lord Morton of Shuna

My Lords, I regret that attitude, but it is not worth testing the opinion of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendment No. 82A: Page 124, line 46, at end insert ("one or more of the following persons").

The noble and learned Lord said: My Lords, I have just spoken to this in explanation. I beg to move.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 83: Page 125, line 17, leave out ("of any remarriage of his or").

The noble Lord said: My Lords, this is a very odd provision. Sub-paragraph (4) of paragraph 12 instructs the board that in assessing a claim: by the surviving spouse of a person who died as a result of injury…no account shall be taken of any re-marriage of his". That means that the board will need to assess how much social security benefit the surviving spouse would have received if he had not remarried, in spite of the fact that he has remarried, and take off that notional payment which he will never in fact receive. In my view, that is wholly unfair. The amendment is intended to remove the words: of any re-marriage of his", leaving in the words: his prospect of re-marriage to be taken into account. I beg to move.

Lord Cameron of Lochbroom

My Lords, this sub-paragraph is here to cure an anomaly which arises under the present scheme. I shall just explain briefly how it arises. Where a spouse is killed, the survivor is entitled to damages which are based upon the proposition that the society of the spouse has been lost and lost for good.

The common law as amended by statute provides that the court shall in assessing damages disregard both the prospect of remarriage or actual remarriage in assessing the damages. However, when it comes to compensation under the present scheme, a deduction is made of the amount of any social security benefit which is payable to the widow or widower. That means that in the case of a widow who remains unmarried coming before the board, her award is reduced by the amount of her widow's benefit. However, where the widow has remarried, the widow's benefit is no longer payable and consequently no such reduction is made.

The anomaly is simply that the widow of the man who dies as a result of a criminal injury will receive a higher award under the present scheme if she remarries than if she remains single. The purpose of this sub-paragraph is simply to make the provision for deduction apply as though any person who is claiming for the death of a spouse is deemed to remain a widow or widower for the whole period thereafter, as regards both the assessment of damages and the deduction which falls to be made.

It is for that reason that this sub-paragraph appears. The consequence of the noble Lord's amendment will be, as your Lordships will see, to perpetuate the anomaly which presently arises and which must surely be thought to be unreasonable. It is for that reason that I cannot accept the amendment.

Lord Morton of Shuna

My Lords, I regret that the noble and learned Lord cannot accept the amendment. I also regret that for once he has made a mistake in the law—or at least his brief is mistaken. My understanding of the law as it presently stands is that under the 1972 legislation the prospects of remarriage of a woman have to be ignored but those of a man do not. The prospects of remarriage of a man must be taken into account in assessing any compensation at common law for the death of a wife but not the prospects of remarriage or the actual remarriage of the woman. If that is correct, then the anomaly that is there to be corrected is not this anomaly, which simply follows on from the statutory anomaly. I suggest that the amendment has merit. If we are to correct the law, this is perhaps not the vehicle and it should be done somewhere else.

Lord Cameron of Lochbroom

My Lords, with the leave of the House, the noble Lord has made what is perhaps a different argument and one at which I should like to look again. I assure the House that the purpose of the amendment is to cure the anomaly, as I indicated at the outset. We have obviously gone beyond that. I should like to consider the matter further. I am grateful to the noble Lord.

Lord Morton of Shuna

My Lords, it seems to be appropriate that I should ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 84 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 84A: Page 125, line 25, at end insert ("one or more of the following persons").

The noble and learned Lord said: My Lords, I have spoken to this amendment previously. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 84B: Page 126, line 44, leave out ("or").

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

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 85: Page 125, line 2, leave out ("and gratuities").

The noble Lord said: My Lords, this amendment relates to the deductions of pension payments. The difficulty is that pension rights are defined at the top of page 126— includes sums paid under insurance arrangements, other than private insurance arrangements, and gratuities". The amendment deletes the word "gratuities". I cannot see why those who receive gratuities to which they are not entitled should have them deducted from any payment which the state makes for a death. Compensation fund payments and appeals payments might come under that. I beg to move.

Lord Irvine of Lairg

My Lords, perhaps I may add a few words in support of the amendment. As my noble friend says, the Bill obliges the board to deduct from compensation gratuities paid to a victim by an employer. As I recall it, in Committee it was conceded by the noble and learned Lord the Lord Advocate that the provision might well deter employers from behaving benevolently towards injured employees. Obviously it will do so. The generous employer wants to benefit his employees and not to transfer the burden of assistance away from the public purse on to his own shoulders.

As I recall it, all that the noble and learned Lord found to say in Committee was that the board might have difficulty in distinguishing gratuities from payments resulting from legal or moral obligations, and so all of those must be deductible. For my part, I cannot accept that the argument has any serious validity whatever. The board will have no difficulty in identifying a legal obligation when it sees one. As for moral obligations, when they inspire payments those payments are plainly gratuitous. One is left with the feeling that the Government's objection is unimpressive and designed to justify yet further petty cost-cutting, this time at the expense of good industrial relations.

Lord Cameron of Lochbroom

My Lords, this matter was the subject of debate at Committee stage and we undertook to look at what was said then. Having done so, we are not persuaded that the board, when determining an applicant's loss of income for the purposes of an award, should not take account of all payments made by an employer as a result of the applicant's office or employment.

We take the view that if this amendment were accepted it would leave the board in a difficult position. It would have to decide whether payments made by employers to employees who had been injured by criminal violence as a result of their work were truly gratuitous or whether the payment resulted from some legal or moral obligation on the employer's part.

It has been said by the noble Lord, Lord Irvine, that the legal obligation is easy to determine. However, it may not be. There is no obvious and workable basis on which the board could make such a decision. If the distinction could be drawn, it could raise questions about the equity of treating employees with such benefits differently from those without. On the whole matter, we have concluded that there is no acceptable alternative other than to regard all gratuities from employers as benefits which the board should take into account in assessing compensation. It is therefore with some regret that I must resist the amendment.

Baroness Seear

My Lords, surely that is ridiculous. An employer who pays an employee who has been injured because he is a long-serving employee towards whom the employer has a strong feeling is not going to pay tuppence if as a result of that act the employee will get less from the state. He has a purely legal obligation if he has undertaken to pay the employee for so many weeks of sickness or whatever it may be. That is easily recognised. But a moral obligation or a generous act beyond that surely cannot be deducted. It would mean that it would never be done again. The employer is not in business to save the state from paying compensation. Surely the noble Lord, Lord Morton, is right about that.

Lord Morton of Shuna

My Lords, encouraged by the noble Baroness and not discouraged, as I was concerning my English some time ago, I find that the answer of the noble and learned Lord is not entirely satisfactory. I seek the opinion of the House.

3.49 p.m.

On Question, Whether the said amendment (No. 85) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 113.

DIVISION NO. 3
CONTENTS
Airedale, L.	Kennet, L.
Allen of Abbeydale, L.	Kilmarnock, L.
Ardwick, L.	Kirkhill, L.
Aylestone, L.	Leatherland, L.
Banks, L.	Listowel, E.
Basnett, L.	Llewelyn-Davies of Hastoe, B.
Birk, B.	Lloyd of Kilgerran, L.
Bonham-Carter, L.	Lockwood, B.
Bruce of Donington, L.	McNair, L.
Callaghan of Cardiff, L.	Mais, L.
Carmichael of Kelvingrove, L.	Molloy, L.
Cledwyn of Penrhos, L.	Morton of Shuna, L.
Cocks of Hartcliffe, L.	Nicol, B.
David, B.	Ogmore, L.
Davies of Penrhys, L.	Paget of Northampton, L.
Dean of Beswick, L.	Ponsonby of Shulbrede, L. [Teller.]
Diamond, L.
Dormand of Easington, L.	Rea, L.
Elwyn-Jones, L.	Ripon, Bp.
Ewart-Biggs, B.	Ritchie of Dundee, L.
Falkland, V.	Ross of Marnock, L.
Fisher of Rednal, B.	Rugby, L.
Foot, L.	Sainsbury, L.
Gallacher, L. [Teller.]	Seear, B.
Galpern, L.	Serota, B.
Gladwyn, L.	Shepherd, L.
Graham of Edmonton, L.	Silkin of Dulwich, L.
Grey, E.	Stallard, L.
Hampton, L.	Stedman, B.
Harris of Greenwich, L.	Stoddart of Swindon, L.
Hayter, L.	Strabolgi, L.
Hooson, L.	Taylor of Mansfield, L.
Houghton of Sowerby, L.	Tordoff, L.
Hughes, L.	Underhill, L.
Hunt, L.	Wallace of Coslany, L.
Hutchinson of Lullington, L.	Wedderburn of Charlton, L.
Irvine of Lairg, L.	White, B.
Jeger, B.	Wigoder, L.
Jenkins of Putney, L.	Williams of Elvel, L.
John-Mackie, L.	Ypres, E.

NOT-CONTENTS
Allerton, L.	Broadbridge, L.
Ampthill, L.	Brougham and Vaux, L.
Arran, E.	Broxbourne, L.
Auckland, L.	Butterworth, L.
Beaverbrook, L.	Caccia, L.
Belhaven and Stenton, L.	Caithness, E.
Belstead, L.	Cameron of Lochbroom, L.
Benson, L.	Campbell of Alloway, L.
Blyth, L.	Campbell of Croy, L.
Borthwick, L.	Carnock, L.
Boyd-Carpenter, L.	Constantine of Stanmore, L.

Cottesloe, L.	Monk Bretton, L.
Cox, B.	Montgomery of Alamein, V.
Crickhowell, L.	Morris, L.
Cullen of Ashbourne, L.	Mottistone, L.
Davidson, V. [Teller.]	Mountevans, L.
Denham, L. [Teller.]	Mowbray and Stourton, L.
Denning, L.	Munster, E.
Dilhorne, V.	Murton of Lindisfarne, L.
Dundee, E.	Nelson, E.
Effingham, E.	Nugent of Guildford, L.
Ellenborough, L.	Orkney, E.
Elliot of Harwood, B.	Peyton of Yeovil, L.
Erroll of Hale, L.	Plummer of St Marylebone, L.
Faithfull, B.	Porritt, L.
Fortescue, E.	Rankeillour, L.
Fraser of Kilmorack, L.	Rodney, L.
Gainford, L.	Romney, E.
Glenarthur, L.	St. Davids, V.
Gray of Contin, L.	Saint Oswald, L.
Gridley, L.	Saltoun of Abernethy, Ly.
Hailsham of Saint Marylebone, L.	Sanderson of Bowden, L.
	Sandford, L.
Harmar-Nicholls, L.	Seebohm, L.
Havers, L.	Shannon, E.
Headfort, M.	Simon of Glaisdale, L.
Hesketh, L.	Skelmersdale, L.
Hives, L.	Strathcarron, L.
Home of the Hirsel, L.	Strathcona and Mount Royal, L.
Hooper, B.
Hylton-Foster, B.	Strathspey, L.
Johnston of Rockport, L.	Sudeley, L.
Kaberry of Adel, L.	Terrington, L.
Kinloss, Ly.	Teviot, L.
Kitchener, E.	Thomas of Gwydir, L.
Lane-Fox, B.	Thorneycroft, L.
Lauderdale, E.	Thurlow, L.
Long, V.	Trafford, L.
Lurgan, L.	Tranmire, L.
Lyell, L.	Trefgarne, L.
Mackay of Clashfern, L.	Vaux of Harrowden, L.
Macleod of Borve, B.	Whitelaw, V.
Malmesbury, E.	Wise, L.
Mar, C.	Wolfson, L.
Margadale, L.	Wyatt of Weeford, L.
Marley, L.	Wynford, L.
Merrivale, L.	Young of Graffham, L.
Mersey, V.

Resolved in the negative, and amendment disagreed to accordingly.

3.56 p.m.

Lord Cameron of Lochbroom moved Amendment No. 86: Page 126, line 12, leave out ("become entitled to") and insert ("received").

The noble and learned Lord said: My Lords, this is an amendment identical with one moved in Committee by the noble Lord, Lord Irvine of Lairg, which we accepted in principle. However, we wished to consider the consequences that might apply to Clause 107. Amendments No. 104A and 104B represent the result of that consideration.

This amendment will allow the board to deduct from the applicant's award only such moneys as have been received by the applicant as a result of the compensation order. I beg to move.

Lord Morton of Shuna

My Lords, it is a rare but very welcome event that a suggestion from this side is accepted by the other side. It is very welcome even though it occurs but rarely.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 86A:

Page 126, line 47, at end insert— ("(cc) make provision as to circumstances in which a claim is to be determined by a decision at a hearing on specified issues and as to the procedure for settling the issues which are to be considered;").

The noble and learned Lord said: My Lords, I spoke to this amendment on Amendment No. 70A. I beg to move.

On Question, amendment agreed to.

Clause 101 [Criminal Injuries]:

Lord Morton of Shuna moved Amendment No. 87: Page 75, line 8, leave out from beginning to ("; or") in line 11 and insert: ("(ii) a crime of violence").

The noble Lord said: My Lords, we now move to Clause 101 and to the definition of a crime of violence. The purpose of this amendment is to take out sub-paragraph (ii) of paragraph (a), where an attempt is made to define a crime of violence, and to insert the words "a crime of violence".

In the case of Warner in 1985 Lord Justice Watkins suggested it was appropriate that there should be a definition, or at least a broad and easily comprehensible statement of policy. That was in the Division Court. In the Court of Appeal Lord Justice Lawton said that the board, will recognise a crime of violence when they hear about it even though as a matter of semantics it may be very difficult to provide a definition which is not too narrow or so wide as to produce absurd consequences". In my view this is the latest in a variety of attempts to define a crime of violence which produces consequences that are too wide, and unnecessarily so.

No doubt it could and will be argued that the word "requires" in the definition means that it is the offence that in theory requires proof of recklessness. However, it might also be read to cover such acts as a deliberate disregard to comply with regulations about fencing off holes in the road, regulations under the Factories Act or under the Health and Safety at Work Act. I suggest that those are not the type of offences which are intended to be covered.

The definitions under subsection (2) refer to the Firearms Act. As far as I can see, if somebody walks across a road from one section of a moor to another and accidentally drops a loaded firearm which goes off, the Criminal Injuries Compensation Board will pay compensation to anybody who is hit. That may be right or wrong, but I do not believe it is exactly what is usually meant by a victim of a crime of violence. This amendment is intended to avoid that type of offence being covered. I suggest that it is not necessary to have a definition of what is meant by a "crime of violence". I beg to move.

Lord Denning

My Lords, perhaps I may say a word against this amendment. The words "crime of violence" are very vague and difficult for a court define. The definition given in the Bill seems to be good enough.

Lord Campbell of Alloway

My Lords, I oppose the amendment not only for the reasons given by the noble and learned Lord but because it does not take on board the crucial question of intent.

Lord Cameron of Lochbroom

My Lords, I am most grateful to the noble and learned Lord and to my noble friend for making points more succinctly than I could have done. We debated this in Committee and I explained the reasons for the use of the terms in subsection (1)(a)(ii). We still hold the view that it is necessary to provide wording which makes the scheme specific in order to eliminate uncertainty at the borders. The noble and learned Lord, Lord Denning, has pointed out how unspecific is the phrase which appears in this amendment. That of course has been the subject of comment in the Divisional Court.

This provision is also analogous to the terms of Northern Ireland legislation, which I am not aware have given rise to difficulty. The noble Lord opposite made a reference to the Factories Act legislation. The terms of this paragraph are very carefully drafted to make clear that the kind of case to which he refers would not be covered because the general definition here is to offences requiring proof of intention or recklessness and the scheme excludes cases where the particular facts may disclose recklessness but the offence concerned does not require proof of it. Those are the kind of offences under Factories Acts or health and safety legislation where a breach of statutory duty gives rise to personal injury and generally an employer or contractor would be liable under civil law and damages covered by compulsory insurance provisions. For these and other reasons which have been deployed, we cannot accept this amendment.

Lord Morton of Shuna

My Lords, I do not intend to press this point. I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendment No. 88: Page 75, line 36, at end insert: ("(gg) in Scotland, the offence of mobbing;").

The noble and learned Lord said: My Lords, this amendment is simply to make further specification of a particular offence in Scotland which is something like the term "affray" which appears in the immediately preceding paragraph. I beg to move.

Lord Morton of Shuna

My Lords, I have no objection to this being added to the list. However, I am puzzled by how the offence of mobbing is not an offence which necessarily implies recklessness where personal injury is caused. Perhaps that could be explained.

Lord Hailsham of Saint Marylebone

My Lords, for those few of us here who are not Scots may I ask my noble and learned friend on the Front Bench to explain the meaning of the word "mobbing" as a criminal offence? I thought it was an expression confined to Etonians dealing with their masters!

Lord Cameron of Lochbroom

My Lords, I am afraid it has gone beyond the playing fields of Eton and spread to Scotland. It simply describes a form of general public disturbance which may involve fighting in public with a number of persons involved; hence, the word "mobbing". I hope that brief explanation is sufficient for my noble and learned friend.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 89:

Page 75, line 38, leave out from beginning to (";and") in line 39 and insert: ("(j) the offence of deliberately placing by any person of himself in the path of an approaching train or engine on a railway, and such person shall be deemed to commit an offence for the purposes of the Part of this Act only").

The noble Lord said: My Lords, this returns to a subject which we discussed in Committee concerning the proper way to cover what can be described as railway suicide cases. It is covered under the Bill by Clause 101(2)(j), which states: an offence under section 34 of the Offences against the Person Act 1861". That section says: Whosoever by any unlawful act or any wilful omission or neglect shall endanger or cause to be endangered the safety of any person conveyed in or being in or upon a railway or shall aid or assist therein shall be guilty of a misdemeanour". That seems to cover any negligent act which causes injury on a railway. For example, it covers somebody who opens the door of a carriage before the train has stopped. I doubt whether that was intended to be covered.

Amendment No. 89 attempts to put in words, no doubt not very happy words, which confine the provision to the situation which we understood the Government intended to cover; that is, where somebody throws himself in front of a train and causes nervous shock to the driver. That was what we understood was intended to be covered, not any negligent act on a railway.

I also speak to Amendment No. 90, which is to take out subsection (3). That contains the curious words: In Scotland, any conduct which, if it occurred in England and Wales, would constitute an offence under section 34 of the Offences against the Person Act 1861".

As I said in Committee, most lawyers in Scotland do not carry 1861 statutes in their offices or in their heads. That Act has never before applied to Scotland and what would be an offence in England is something on which Scottish lawyers may be rather hesitant to advise. For those of us who require to look at old statutes, there is a publication in Scotland called Scots Acts. If it is necessary to have this tortuous reference to the Offences against the Person Act, it would be better to print the whole of Section 34 in the Bill to explain to Scots what it is about, rather than this curious reference which the Scots will have grave difficulty in understanding. I beg to move.

Lord Denning

My Lords, I would not omit subsection (2)(j). It is clear enough, but I suggest that it is as well to consider the position of the railway suicide. Suicide and attempted suicide have not been offences since 1961, but nevertheless if a person throws himself on the railway or puts himself into the path of a train and as a result the train driver, as he may well do and has happened, suffers serious nervous shock, he should be compensated under this provision.

Lord Irvine of Lairg

My Lords, I am encouraged by what has just come from the noble and learned Lord, Lord Denning, to add a distinct point of my own in support of Amendment No. 89. It is really a drafting matter. The point should be uncontroversial. It may be that with the press of business the Government have not had sufficient opportunity carefully to consider the point. After Committee, I had hoped that it would be the subject of a government amendment. I shall reiterate the points which I made in Committee.

The provisions are of course intended to allow train drivers who suffer shock in railway suicide cases to be compensated under the scheme. The point I wish to make, in addition to that made by my noble friend Lord Morton, is that as the Bill stands there first has to be an offence under Section 34 of the 1861 Act which requires someone on the railway to be endangered by the suicide's act. It could be arguable that when someone merely jumps in front of the powerful new high-speed train, without giving the driver an opportunity to do anything, no one but that person is endangered. I do not say that such an argument would necessarily succeed, but it might. If it did, it would rob the change in the law of its purpose. We should then return to the public outcry which ensued when the Court of Appeal was first constrained to hold that such train drivers could not be compensated as the law then stood.

There is a drafting point here which merits further consideration. I hope to hear the noble and learned Lord the Lord Advocate say that he will give further thought to the point.

Lord Cameron of Lochbroom

My Lords, I do not think that there is any difference between us in what we are trying to secure here, which is that a train driver who suffers nervous shock as a result of running down someone on a railway line should be entitled to make a claim under the scheme. As noble Lords opposite will know, and as was explained in Committee, this part of the Bill arises from an Opposition amendment in Committee in another place during the last Session.

The Government then accepted that the provision should cover instances where a person deliberately gets in the way of a train and also where a person is accidentally knocked down and killed or injured by a train while trespassing on the railway. We accept that as it stands the subsection goes a little wider than intended. We have not so far been able to find a satisfactory alternative.

In the light of that, the amendment would seem to be drawn too narrowly, because it would require the board to satisfy itself that the person had deliberately put himself in the way of the train. That may be difficult to determine when someone is struck by a train from behind or in poor light. Again, it would exclude instances of shock where a person was accidentally killed as a trespasser on the railway. The Government have already agreed that the matter should be covered by the provision.

With regard to the present proposal, it seems somewhat objectionable in principle to create a new notional offence to bring certain behaviour within the scope of the criminal injuries compensation scheme. I assure your Lordships that we have been looking carefully to see whether we can find a more attractive way of covering such cases.

At the moment I am not satisfied that the search is yet complete, and I am happy to assure your Lordships that we shall try to see whether there is a way to restrict the matter to one of circumstances which might be somewhat more acceptable than the present somewhat wide formulation. I can do no more than say that. I can give no undertaking that at the end of the day our search will be more fruitful than it has been. I accept the concerns that the noble Lord has expressed. I hope that with that assurance the noble Lord might feel able to withdraw his amendment.

Lord Morton of Shuna

My Lords, with the undertaking that I too will have another shot at trying to draft the provision, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 90 not moved.]

4.15 p.m.

Clause 102 [Qualifying injuries]:

Lord Cameron of Lochbroom moved Amendment No. 90A: Page 77, line 22, leave out ("if the person injured has not so ceased to live,") and insert ("that the person injured has not so ceased to live but that the reason why he has not so ceased to live is").

The noble and learned Lord said: My Lords, in Committee the noble Lord, Lord Morton, drew attention to the rather odd wording of the subsection. I responded by saying that the amendment that he then proposed did not cover all the circumstances of the subsection. I then undertook to obtain an alternative form of words. In doing so, the matter lived up to the warning that I gave: the amendment is longer than what originally appeared. In the circumstances, we have done as well as we can to meet the point being made at that time by the noble Lords. I beg to move.

Lord Morton of Shuna

My Lords, I thank the noble and learned Lord for the efforts he has made to make this subsection sit rather more happily. It is a matter of opinion as to whether it does so, but I do not intend to oppose the amendment.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 91: Page 77, line 27, leave out ("for him to take") and insert ("which was justified in all the circumstances").

The noble Lord said: My Lords, this amendment is designed more or less to restore the wording that is in the present scheme. As I understand it, the amendment is acceptable to the Government. I beg to move.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 92: Page 77, line 29, leave out ("is") and insert ("would be").

The noble Lord said: This amendment is directed towards subsection (7), which relates to road traffic provisions. The Bill provides that in circumstances: such that compensation in respect of the injury is payable under a policy of insurance or under an arrangement made with the Motor Insurers' Bureau, the injury is to be excluded. My amendment leaves out "is" before "payable" and inserts "would be", because there are circumstances where cover under an insurance policy exists so long as the insured person takes reasonable steps to tell the insurance company about the situation. The same applies to the Motor Insurer's Bureau. One is required to give notice to it.

What might happen, and I do not think it is intended to be covered by the provision, is that someone might fail to inform his insurance company of a situation where he would be liable to be compensated by insurance, and therefore claim under the compensation board scheme, which I suggest is not what is intended by the Bill. I beg to move.

Lord Cameron of Lochbroom

My Lords, the intention of the subsection is to deal with the case where some form of insurance provision is already in existence whether this be the normal motor insurance arrangements or in terms of the two agreements of 1978 with the Motor Insurers' Bureau and the Secretary of State for Transport concerning the victims of uninsured and untraced drivers respectively. It is the board's current practice not to consider any case that falls within the scope of insurance arrangements.

The noble Lord, Lord Morton of Shuna, has pointed out a possible loophole. I should like to consider whether the wording in the subsection is adequate to cover that situation as well as what I have outlined. With that assurance, I ask the noble Lord to withdraw the amendment.

Lord Morton of Shuna

My Lords, given that assurance, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker

My Lords, if Amendment No. 93 is agreed, I cannot call Amendment No. 93A or Amendment No. 93B.

Lord Morton of Shuna had given notice of his intention to move Amendment No. 93: Page 77, line 37, leave out subsections (8) and (9).

The noble Lord said: My Lords, in the confident hope that Amendments Nos. 93A and 93B will be moved, I beg leave not to move the amendment.

[Amendment No. 93 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 93A:

Page 77, line 27, leave out from beginning to ("put") in line 42 and insert— ("(8) A criminal injury to a person which is caused by shock is only a qualifying injury if it is attributable to his having been").

The noble and learned Lord said: My Lords, with this amendment, I speak to Amendment No. 93B standing in my noble friend's name.

I undertook in Committee to look at the wording of subsection (8) to see whether it could be revised to cover crimes such as fire-raising and causing explosions where the injurious consequence may follow some time after the initial criminal activity. The amendment retains the effect of subsection (8) while removing the reference to an applicant's presence while the criminal activity was being engaged in.

As to subsection (9), which would fall to be taken out by Amendment No. 93B, on further consideration we do not think that it would be unreasonable to the leave the board to decide application for compensation for nervous shock subject to the restrictions in subsection (8) on the same basis as the test applied for the time being by civil courts in relation to damages for nervous shock. I beg to move.

Lord Irvine of Lairg

My Lords, the amendments are heartily welcomed by noble Lords on this side of the House. It was a subject on which we had a good deal of discussion in Committee. The Government have now accepted the greater part of the criticisms that we made and the worst of the anomalies of which we gave examples will not now occur. I respectfully suggest to the Government that they should give further consideration to going somewhat further to make the point absolutely right.

Subsection (8), as amended, still requires that the victim of the nervous shock has been put in fear of immediate physical injury whether to himself, herself or another. I was interested to hear the noble and learned Lord the Lord Advocate say that the Government had been minded to accept the arguments that we put forward in Committee because it was thought that the board should be left able to follow the common law, and the statute should not depart from the common law.

That being the principle that the Government have accepted, let me give again a specific example that I gave the Committee. The facts are those of a well-known case that the noble and learned Lord, Lord Denning, I do not doubt will remember, Hinz v. Berry, in which he presided over the Court of Appeal. The mother of a family was picking flowers on one side of the road and her family was enjoying a picnic on the other side of the road. A car crashed into the family. The mother heard the impact, turned and saw after the accident that her children had suffered quite horrific injuries. She suffered nervous shock as a result. Rightly she was compensated by the decision of the Court of Appeal but she never feared injury to anyone. Fear of course implies anticipation that something is about to happen. It will not cover the case where shock is suffered on seeing the consequences of a crime. We would argue as we argued in Committee that the entitlement to compensation surely ought not to depend upon whether the victim anticipates the commission of the crime. For example, what if a person is caught in an explosion caused by a terrorist bomb and suffers nervous shock because of the horrors which he or she sees? Once the bomb has gone off, the deed has been done and people will not in the ordinary way fear or anticipate further injury. As the Bill stands, that will exclude them from compensation and seems to us to be an injustice.

The board is already required to apply the general rule. The courts over the years have developed ample safeguards to exclude claims for nervous shock where the victim of the shock is too remote from the event that causes the harm. With great respect, I agree with what came from the noble and learned Lord, Lord Denning, in Committee. On that subject, he said that we should simply stick with the common law (which has been developed satisfactorily by the judges) decision by decision.

As a result of the amendments that have been accepted, little of the initial provision is left. I hope that, in the light of the example I have given, the noble and learned Lord the Lord Advocate will consider that all that remains of these provisions now can safely and beneficially be deleted so that the board can be left to follow the common law as developed by the judges.

Lord Cameron of Lochbroom

My Lords, I have listened with care to what the noble Lord has said. In the Government's view what is presented in the amendment is the proper way to go forward. We have never shut our minds to looking at other circumstances that may be close to the line. I cannot give any undertaking. However, these matters are being considered. I shall obviously draw the remarks made by noble Lords in Committee to the attention of my right honourable friend the Home Secretary at the Home Office.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 93B: Page 77, line 44, leave out subsection (9).

On Question, amendment agreed to.

Clause 103 [Claims for compensation]:

Lord Morton of Shuna moved Amendment No. 94: Page 78, line 18, at beginning insert ("where the appropriate jurisdiction is England and Wales,").

The noble Lord said: My Lords, Amendments Nos. 94 to 98 are an endeavour to correct the jurisdiction question as between England and Wales and Scotland.

Under Clause 103(3), if a person dies as a result of a qualifying injury he is entitled to the bereavement award; that is, the award in England and Wales. There is no mention of the Scottish equivalent, which is the loss of society award. Amendments Nos. 94 to 98 are an attempt to correct that omission and to amend the clause for the better. This again raises the fishing boat issue. If a fishing boat is outside territorial waters and a person dies, the compensation is a bereavement award rather than a loss of society award, which cannot be what is intended. I suggest that these amendments deserve some consideration and that one does not perhaps need to define to the board, all of whom are lawyers, which is the appropriate jurisdiction to apply because the board should know that. I beg to move.

4.30 p.m.

Lord Cameron of Lochbroom

My Lords, the noble Lord has raised two points in his amendment. The first relates to the loss of society award which is one peculiar to Scotland. We had hitherto thought that the right to claim it was implicit in the scheme as set out in the Bill. If there is doubt upon it, it is prudent that the matter should be put beyond doubt. I should be very happy to consider this matter in order to secure that result and the best way to do so.

On the further matter of jurisdiction, I have already undertaken in reference to Amendment No. 79 to consider the drafting of provisions as to the proper law to be applied. We have to take account of the claimant and ensure that he should be quite clear of the proper law. It is not simply a matter for the board, but I assure the noble Lord that I will include the terms of Clause 103 in the process of consideration. Perhaps with those assurances he will feel able to withdraw his amendment.

Lord Morton of Shuna

My Lords, certainly I shall withdraw Amendment No. 94 and, if I may do so at the same time, not move Amendments Nos. 95 to 98.

Amendment, by leave, withdrawn.

[Amendments Nos. 95 to 98 not moved.]

Clause 104 [Powers to withhold and refuse compensation]:

Lord Morton of Shuna moved Amendment No. 99: Page 79, line 5, leave out from ("that") to ("or") on line 6 and insert ("no conduct on his part was connected with the injury").

The noble Lord said: My Lords, this is a matter I raised in Committee which the noble and learned Lord undertook to consider. The difficulty is that the various issues raised in Clause 104, such as conduct, previous convictions, co-operation with the police and so on, as drafted give a different onus of proof on different things to different people which will make it very awkward. There is also the difficulty that Clause 104(1)(a)(iii) suggests that we are bringing into the compensation scheme the question of contributory negligence on the injured party's behalf. I am one of a number of lawyers—certainly the Scottish Law Commission appears to agree with me—who believe there is a difficulty about muddling contributory negligence with crimes of violence. I should be very reluctant to see a victim of rape, for example, penalised because she was held to be in the wrong place at the wrong time and was therefore negligent. People are entitled to go about their business and not to be attacked; even if they are negligent, they go about their business. There is a difficulty in the reference to contributory negligence. My amendments put the onus of proof all on the one side and relate only to the conduct of the applicant coming into issue. I beg to move.

Lord Cameron of Lochbroom

My Lords, we discussed amendments to the same effect in Committee. I indicated then that we were generally sympathetic with the purpose behind those amendments. I regret that in the time available the Government have not been able to bring forward amendments to the Bill, though we intend to do so in time for Third Reading. One question which may yet arise relates to what the noble Lord called contributory negligence. This arises in that one of his amendments constricts the board's discretion by removing the reference to a person being to any extent responsible for the injury in subsection (1)(a)(iii). There may be merit in retaining that provision as well as conduct connected with the injury. We are considering this, as I said we would in Committee. Perhaps with that assurance the noble Lord might withdraw his amendment.

Lord Morton of Shuna

My Lords, I hope that the Government's amendments do appear at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 100 to 102 not moved.]

Clause 105 [Right of appeal by way of case stated]:

Lord Morton of Shuna moved Amendment No. 103: Page 79, line 41, leave out ("28 days") and insert ("3 months").

The noble Lord said: My Lords, this is a simple amendment to give the same time limit for an appeal by way of stated case from a hearing as is given from the initial decision to apply for a hearing. That is the purpose behind Amendment No. 103.

I believe I am supposed to be speaking to Amendment No. 104 at the same time. That uses the same words, there are exceptional reasons for doing so as have been used previously in this part of the Bill. I beg to move.

Lord Cameron of Lochbroom

My Lords, I believe we went over this course in Committee. In the Bill originally we had "21 days" and that was increased to 28 days after discussion in another place when the Bill was before Parliament in the previous Session. It is as well to bear in mind that under subsection (2) the time is to be 28 days, beginning with the day on which the board notified the claimant of its determination. In many cases the claimant will be present when the board gives its reasons for the decision and those will be explained at the time. In other cases he will be notified subsequently, and the appeal time of 28 days does not seem to be unreasonable.

The board has a discretion, as the House will see under subsection (3). It may entertain an application—notwithstanding that the time allowed for making it has expired—if it is satisfied that the appeal was made as soon as is reasonably practicable. We believe that that is the way to deal with it—to give the board the discretion that it has so that it is not left with a large number of cases pending over a fairly long period, for example, the three months which the amendment suggests. For these reasons, I cannot advise your Lordships to accept the amendment.

Lord Morton of Shuna

My Lords, I regret the attitude of the noble and learned Lord. But this is not a matter on which to divide the House and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 104 not moved.]

Clause 107 [Reimbursement and recovery]:

Lord Cameron of Lochbroom moved Amendment No. 104A: Page 81, line 5, leave out from ("Where") to ("before") in line 8 and insert ("after an award of compensation under this Part of this Act has been made to a person he receives any payment which, had he received it").

The noble and learned Lord said: My Lords, I also speak to Amendment No. 104B. These amendments have already been spoken to with Amendment No. 86. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 104B: Page 81, line 11, leave out from ("him") to end of line 12.

On Question, amendment agreed to.

Clause 110 [Abolition of peremptory challenge]:

Lord Wigoder moved Amendment No. 105: Page 83, line 3, after ("cause") insert ("or to require jurors to stand by for the Crown").

The noble Lord said: My Lords, with your Lordships' leave, I wish to speak also to Amendment No. 106. Your Lordships will recollect that during Committee stage of the Bill the House abolished the right of the defence to challenge jurors peremptorily up to the number of three. That abolition was done in your Lordships' Chamber on an argument based on two factors: first, that such a process by the defence interfered with the random selection of jurors upon which a proper trial should be based; and, secondly, that that right of peremptory challenge was capable of being abused. Some anecdotal evidence was given that it was in fact being abused to distort the balance of a jury in favour of the defence. Perhaps I may say—because it may affect your Lordships' approach to this matter—that when I turn to the prosecution's right of summary challenge I do so not in any spirit of sour grapes, because I did not oppose the Government's amendment to abolish the right of peremptory challenge by the defence.

I turn now to Amendment No. 105, which with Amendment No. 106 seeks to abolish the prosecution's right of summary challenge. The prosecution's right is not limited to three challenges. It is in fact unlimited. It is true that it is not called summary challenge. It is called standing by for the Crown, but it is for all practical purposes exactly the same. My argument is basically exactly that which was used last time in your Lordships' House in relation to the defence right of summary challenge. It interferes with the random selection of the jury and is capable of being abused and distorting the balance of the jury.

That it interferes with the random selection of the jury does not need arguing in your Lordships' House. It has been conceded by the Government and indeed by the Attorney-General. In 1987 the Attorney-General issued draft guidelines on the use of stand by for the Crown as a procedure, and said in terms: Derogation from the principle that members of a jury should be selected at random should be permitted only where it is essential". In other words, the Attorney-General was conceding at that time that when the prosecution exercises its right of stand by for the Crown it is interfering with the principle of random selection of the jury. That is not in issue today.

Secondly, there is the question of whether, as was said against the defence right, the prosecution right is not also capable of being abused and may perhaps on anecdotal evidence have been abused. That it is capable of being abused is clear from the extent to which it is used. I shall put aside security cases, which are a wholly separate category. The noble Earl the Minister revealed in Committee that the prosecution was using its right of stand by in something like one in every 20 or 25 cases. That is quite a substantial number; it is certainly not a number to be ignored. Whether or not it is being abused nobody knows. Nobody knows because the Crown does not need to give any reason for exercising its right of stand by. One is then forced back on the kind of evidence that was used in the previous debate in your Lordships' House.

I recall a case many years ago where for some reason—and I cannot now remember it—the prosecution decided that it did not want any working-class jurors on the jury. The defence decided that it wanted as many working-class jurors as possible on that long case. Therefore the whole morning was taken up by either the prosecution or the defence challenging peremptorily each juror as he or she came forward according to what was an informed guess as to the social class from which that juror came. That is quite wrong when it is done by the defence. I accept that. It is equally wrong if it is done by the prosecution.

I know that in the course of his guidelines the Attorney-General indicated to prosecuting counsel that they should not use the right of standing by for the Crown for that purpose but no advice from the Attorney-General is binding on counsel for the Crown. So long as this right persists there is nothing whatever to prevent counsel for the Crown abusing the right if he wishes to do so, just as counsel for the defence was able until the Committee stage of the Bill to abuse it on behalf of the defence.

Therefore I suggest that the argument is overwhelming as to the first stage—namely, that just as peremptory challenge ought not to be allowed to the defence because it interferes with random selection and is capable of abuse, so equally it ought not to be permitted to the Crown on precisely the same grounds. That point may well not be essentially in dispute in your Lordships' House. In the short debate we had on this issue in Committee the matter went further. It was suggested that it would be fair, equitable, common sense and seen to be just to put both the prosecution and the defence in the same position and abolish the right of summary challenge on both sides. The court could say to both sides, "Simply show cause. If you have a reason, challenge for cause any particular juror and it will be determined by the court". That procedure is open at the moment to both the prosecution and the defence.

When that was suggested the argument was put forward that the prosecution right of standing by for the Crown ought to be preserved because there were certain situations in which it was difficult for the prosecution to challenge for cause. On examination these situations turn out to be not very persuasive. It was suggested in Committee, and indeed in the Attorney-General's draft guidelines to which I have referred, that there were two separate problems. There was a problem of embarrassment and a problem of security. Let us take those in turn.

There was a problem of embarrassment, it was suggested, where for example a juror might appear to be illiterate and the prosecution did not wish to have him on the jury. That is not much of a problem really, having regard to the fact that already the court officer and the trial judge have powers to remove a juror who on the face of it appears to be illiterate. More to the point is this: if by any chance an illiterate juror who has evaded the preliminary sieve of the court officer and the judge chooses to take no action, why should the prosecution and the defence then be in any different a position? It may well be that the defence will want to remove a juror because he is illiterate.

That is not in any way unknown. Indeed, if I am not mistaken it was the noble and learned Lord, Lord Havers, himself who many years ago told me of the time that he had a substantial practice in Cambridge but it was the rule there that defence counsel invariably challenged jurors in order to secure on the jury as many university dons as possible. This was not based on the presumption that university dons were illiterate. It was based on the presumption that no two university dons would agree with each other and therefore unanimous verdicts of guilty were singularly unlikely.

There are many long, complicated fraud cases where the defence would find it in its interest to remove illiterate people from the jury. It is not able to do so by peremptory challenge any more following your Lordships' decision at the Committee stage. Why should the prosecution now have that right? Why should it be said that the defence, if it wants to remove a juror on that ground, must exercise the right of showing cause? As for the argument that it is embarrassing, it is not when one comes to think about it very embarrassing. It is not very embarrassing for a tactful lawyer, assuming that there is such a person, to get up when a jury is being sworn in and say "My lord, this is a very long and complicated case with many documents. It appears that this juror has difficulty in reading the oath. Would it not be better if he stood down, and therefore I challenge for cause?". The prosecution and defence should be an example and should be in exactly the same position.

Sometimes the embarrassment can go obviously very much further. In a fascinating observation during the Committee stage the noble and learned Lord, Lord Havers, mentioned a case that had come to his knowledge as Attorney-General. One of the ladies on the jury, a potential juror, was in fact the girlfriend of an international terrorist. That indeed might be very embarrassing to bring out in open court. It might be just as embarrassing if the defence happened to know that one of the ladies on the jury was the mistress of the officer in charge of the case and just as likely or unlikely. On the face of it there would be embarrassment if the matter were raised but perhaps not all that much embarrassment. And, again, why should the prosecution or the defence be treated differently?

If it is said that the embarrassment would be substantial, that is provided for in Amendment No. 106 which says that the court can, if necessary, sit in camera to hear a challenge for cause. In other words, the public and the press will be excluded and then the embarrassment will be reduced. The embarrassment argument on analysis really does not stand up.

I come finally to the security aspect. There are a limited number of cases where the prosecution has the duty of vetting the jury in advance to see if, for security reasons, there are particular jurors who ought not to serve. It is used very rarely indeed. I think the figures that the noble Earl, Lord Caithness, gave at Committee stage were that between 1982 and 1985 only eight jurors were stood by for the Crown on that basis. But I accept of course that there can be security considerations.

Let me pursue, for example, the case of the girl and the international terrorist. It may be that it is not simply that the girl about to serve on the jury knows an international terrorist. That could be mentioned in open court probably without anything more than mild embarrassment. It may be—and my imagination is now beginning to run riot—that the security services know the girl and are tailing her in the hope that she will lead them to the terrorist in due course. That would obviously stop it being mentioned in open court. One would not want to put either the girl or the terrorist on their guard.

For that reason the remaining part of Amendment No. 106 is included. It gives the judge power to hear a challenge for cause not simply in camera but in chambers in a situation in which the defendant will not be there and the jurors will not be there. The judge can decide who is there and deal with the matter simply on a counsel to judge basis. In those circumstances I should have thought that the security aspect can be properly safeguarded. If counsel for the prosecution can be told by the security services of a particular security risk I find it inconceivable that the judge cannot also be told or trusted with that information.

I appreciate—taking the example of the girl friend and the terrorist for the last time—that if the prosecution stands up when she is called into the witness box and says, "I challenge this juror for cause", and the judge then says, "What do you want me to do with her?" and the prosecution says, "Will you please hear it in chambers?", it might be said that that is going to warn the girl and therefore the terrorist that something is known about their connection. But it would be exactly the same if the prosecution's right of stand by is preserved. lf, when the girl is called into the jury box, prosecuting counsel gets up and says "Stand by" for the Crown, it alerts the girl and the terrorist in exactly the same way. It seems to me therefore that in those circumstances it is right and proper that both the prosecution and the defence should be put on an equal footing.

I am pleased to see that there is support for this view from the Roskill Committee. That committee—and your Lordships have had it cited many times with approval in the course of these debates, not always from this side of the House—reported in paragraph 7.35: The third question which arises is whether the abolition of the defendant's right of peremptory challenge would have to be accompanied by the abolition of the prosecution's right to stand by for the Crown". Listen to these words: Unquestionably, in our view, it would be necessary for both sides to be treated in the same way, so that each side should be able to challenge but only for cause. If the prosecution had a reason for challenging a juror which might cause particular embarrassment to the person concerned if disclosed in open court (for example, relating to a previous conviction) the matter could always be raised with the judge in chambers for him to decide whether and how he should proceed to hear and determine the challenge".

That was not the ex-cathedra view of a number of distinguished people sitting on that committee. That was the view of that committee after reading the written evidence and listening to the oral evidence of a number of witnesses, who included the Attorney-General, the Director of Public Prosecutions, the Commissioner of Police of the Metropolis, the Criminal Bar Association, the new Director of Public Prosecutions, and the Lord Chief Justice. I suggest that the Roskill Committee, on this issue at any rate, was completely correct for the reasons I have given. I beg to move.

5 p.m.

Lord Havers

My Lords, perhaps I may first of all say about the second amendment, which has not yet been called, that I agree with it, although I do not think that it is necessary. I think the power exists with the judge. I should just like to remind the noble Lord, Lord Wigoder, of what I believe to be the position. Although the judge sitting in chambers can control who attends him in chambers, there is nothing binding upon those who have heard that hearing to stop them from going outside and repeating it to anybody they like. There is a problem even in chambers, although not in camera.

I am going to seek to persuade your Lordships' House that we must maintain the right of the Crown to stand by. I start by saying that there is a difference between the ordinary right of peremptory challenge, which has now gone by your Lordships' decision in Committee, and the right to stand by. They are not the same. The Crown's attitude to the trial is not the same. The Crown's attitude to the trial is to conduct the trial on behalf of the prosecution in the public interest.

It may well be that during the course of the trial, because the evidence has changed or has not come up to proof, the Crown will say to the judge, "We no longer invite the jury to convict". But their attitude is quite different. It was when this was being considered in the original Criminal Justice Bill back in the early spring that I was asked to consider drafting rules of guidance for Crown counsel when they came to challenge jurors. I made those rules very confined indeed—strictly limited categories. They may in fact have altered because, as my noble friend knows, I am slightly out of touch now, and they may have been tightened up even more. The case that I particularly emphasised was the case of a trial which followed an authorised jury check—what we call in shorthand jury vetting. Those two occasions, terrorism and national security, are the only ones.

I remind the House of some of the things that were set out in those rules which have been quite openly disclosed from the Committee stage in the other place in the original Criminal Justice Bill. It was made clear that extra precautions were needed in security cases where there was a danger, that a juror, either voluntarily or under pressure, may make an improper use of evidence which, because of its sensitivity has been given in camera; (b) in both security and terrorist cases the danger that a juror's political beliefs are so biased as to go beyond normally reflecting the broad spectrum of views and interests in the community, to reflect the extreme views of sectarian interest or pressure group to a degree which might interfere with his fair assessment of the facts of the case or lead him to exert improper pressure on his fellow jurors". Those were the tests that I had applied when I revised the guidelines for the checking of jurors in those two classes of case, terrorism and national security. In my guidelines, which I only drafted, and which I think are still waiting to be used after this Bill has received Royal Assent, it was made quite clear that the right of stand by for the Crown was used sparingly and in exceptional circumstances. I said: It is generally accepted that the prosecution should not use its right to challenge to influence the overall composition of a jury or with a view to tactical advantage". In my nearly 40 years at the Bar, I do not know of an occasion on which I had the slightest suspicion that the use of stand by was being used for any improper purpose by the Crown.

I then dealt with the Juries Act, which set out the disqualifications. Then I went on: The enactment by Parliament of legislation abolishing the right of defendants to remove jurors by means of peremptory challenge"— this was in anticipation— makes it appropriate that the Crown should assert its right to stand by only on the basis of clearly defined and restrictive criteria. Derogation from the principle that members of a jury should be selected at random should be permitted only where it is essential; the direct interests of the prosecution are not relevant factors". I added in paragraph 4 that primary responsibility for ensuring that an individual does not serve on a jury, for example because he cannot read or write, lies with the judge or the court official. I went on and said that there were occasions on which such a person had slippped through the net and the Crown, so often with the full consent of the defence, would stand by because it obviously was unsuitable to have somebody who could not read or write.

I then spoke of the jury check, authorised in accordance with the relevant guidelines, revealing information justifying exercise of the right in accordance with the paragraph I have just read to your Lordships' House, and where a person who is about to be sworn as a juror is manifestly unfitted. That would obviously be somebody who could not read and write. Those are the principles which the prosecution will act upon, subject to amendment by my successor, about which I know nothing. However, I suspect that the main principles which I laid down in February this year will be the basis of instructions to counsel.

The noble Lord, Lord Wigoder, says that the Attorney-General has no power. He has not served in that great office. The Attorney-General does have a lot of power. He is head of the jury and he can always send for counsel and say, "Why did you disregard the guidelines that I have published through the Director of Public Prosecutions and the Crown Prosecution Service?" I say to the noble Lord that I doubt very much if there would be any cases at all in which prosecuting counsel for the Crown would disregard the guidelines which are laid down by my successor.

I told your Lordships' House that I had never seen, in the many years I have been at the Bar, a misuse of this advantage, as it may be. I believe that the Crown is pursuing the public interest when it comes to prosecute. The proper use of the power to stand by is all part of that general duty to act in the public interest. Let me give an example, although it does not really cover this. I was Attorney-General in a case in which a respected city professional man was challenged. He was very cross and he went to the press. He wrote to The Times and said he felt it was a great slight upon him that he had been stood by for the Crown.

I made inquiries, which revealed the oddest situation. The panel of jurors was being looked at casually by a detective sergeant in charge of this case, which was a case of terrorism. He recognised a name among the jurors. He went to exhibit 96, which was one of the hit-lists of the terrorists. The top name on that hit-list was this professional man. So he had to be taken off and nobody could say in public why he had been stood by for the Crown. I think it clearly would have been one of the cases in which one would go into chambers and show cause.

However, when one comes to the contemptuous approach, if the noble Lord, Lord Wigoder, will forgive me, for speaking about cases where security is involved, he has anticipated me about international terrorism. If that wife was known to be the girl friend of the international terrorist and the police were keeping a very close check upon her, hoping that she might lead to the man whom they dearly wanted to see and arrest, the very fact that it was disclosed would of course immediately alert her and destroy the purposes of the operation.

In the case to which I referred at Committee stage, I have to tell your Lordships' House that I stood by for the Crown four people: three for no purpose at all; the fourth was the women in question. The reason for standing by four was to try to stop her realising that she was being singled out from all the others. I think it worked, so far as I am told.

We have one last point, which I think is important and which the noble Lord, Lord Wigoder, has hinted at or brushed side. What happens if, in an authorised jury check case, something is thrown up which would make a juror very unsuitable for the defence? If the right is withdrawn from both the defence and the Crown and it is one of those matters that I have spoken of in which nothing can be said, because to say anything would probably blow it, then what is the Crown to do? It cannot say, as it has done up to now when a jury "vet" has disclosed something: "I think you would be wise to get rid of Mr. Smith". "Why?" "I cannot tell you, but I advise you that Mr. Smith would not be the sort of juror you would want on your jury". The Crown cannot do that because it will not have the right.

I am absolutely certain that if this right is preserved any ordinary prosecuting counsel for the Crown, if it is a case in which he learns anything to the detriment of the defence in the sense that a juror might be unfavourable or unsympathetic, will make certain that the defence is not in any way prejudiced. I think it is a very important issue. I have touched upon it only in a brief way because it is a debate that I suspect will take some time. But with my experience as Attorney-General I have no doubt whatsoever that your Lordships' House should leave that power with the Crown.

Lord Elwyn-Jones

My Lords, before the noble and learned Lord sits down, perhaps he might like to correct a pure slip of the tongue when he described the Attorney-General as the head of the jury. I know that he and I often wished that we were, but it was clearly a slip of the tongue.

Lord Havers

My Lords, the noble and learned Lord is absolutely right: head of the Bar. If that is the only slip of the tongue, I am content.

Lord Simon of Glaisdale

My Lords, I rise to support both of these amendments because to my mind the second, Amendment No. 106, is vital to the first. I myself had no hesitation in supporting the Government in abolishing the right of peremptory challenge by the defence.

There were two reasons given by the noble Earl in his very helpful speech in Committee as to why the right to stand by for the Crown should be preserved. There were two sets of circumstances. The first was the one just referred to by my noble and learned friend Lord Havers, where the Attorney-General has ordered a jury check which turns up something disquieting. Those are limited to cases of terrorism and national security. The second set of circumstances were where a potential juror is obviously inadequate to serve in such a capacity.

As regards the first set of circumstances, I thought that there was great force in what was said in Committee by my noble and learned friend Lord Denning; namely, that in cases of national security and terrorism the Crown cannot announce publicly the risk to security. That is why I believe that Amendment No. 106 is essential and crucial. What cannot be said in public can be said in camera or in chambers.

My noble and learned friend Lord Havers says that there is nothing to prevent anybody in chambers repeating outside what was said. However, those people in chambers can be limited to professional men. There is no question but that if counsel repeated outside what was said in chambers—quite apart from the fact that it would be contempt of court—it would be a matter for disciplinary action on the part of the Bar authorities. To my knowledge it has happened in a civil case where counsel improperly canvassed with a witness what was said in chambers. I apprehend that exactly the same position would apply to a solicitor. In my respectful submission, Amendment No. 106 entirely takes care of cases of terrorism and national security where the Attorney-General orders a jury vetting.

The action taken by my noble and learned friend Lord Havers during his most distinguished and prolonged tenure of that office puts the matter on a rational and fair basis. Both the noble Lord, Lord Wigoder, and my noble and learned friend Lord Havers have quoted passages from the guidelines. Both are cogent and each supports his own case. However, the quotation of the noble Lord, Lord Wigoder, was crucial to the issue. Another former Attorney-General, my noble and learned friend Lord Elwyn-Jones, has put his name to this amendment.

We come to the second class of case, where a potential juror is obviously unsuitable to take part in the adjudication of the case. The noble Earl said that such cases are practically always disposed of by arrangement between counsel for the prosecution and the defence. If they are not so disposed of then they can be disposed of without any kind of embarrassment by a hearing in camera or in chambers.

There was a time when the right was abused by the Crown. It was said that in Ireland during the last century the Crown habitually challenged anybody coming forward to the jury box not wearing a collar and tie. At that time there was a notorious figure in Irish jurisprudence called "Peter the Packer". Such a thing would never happen today in this country nor, I apprehend, in Ireland.

Nevertheless, one must put the matter in its total setting. I was deeply disturbed to read in the current issue of the Spectator a commentary on this Bill taken together with a number of other statutes which have been passed by this Government or their predecessors. The whole tenor of that argument was that what has been done has been consistently done in order to strengthen the position of the police at the expense of an accused person. This particular provision was mentioned in that connection. I did not agree with much that was contained in the article, least of all the description of my noble and learned friend on the Opposition Front Bench as Lord Selwyn-Jones! Nevertheless, the article was written and that kind of thing will be increasingly said.

In Committee it was put in homely terms by my noble and learned friend Lord Roskill that it will be said that what is sauce for the goose is sauce for the gander. I entirely accept what was said by my noble and learned friend Lord Havers as to the mode in which the prosecution in this Kingdom conducts its case. The object is to secure justice and the duty on the prosecution is to act fairly. However, it will be said, "You are taking away the right from the defendant and his advisers of peremptory challenge, but you leave it with the Crown, and that is manifestly unjust". That is what will be said and that is one of the reasons why I support the amendment.

5.15 p.m.

Lord Denning

My Lords, as the debate goes to and fro I should like to say that I strongly agree with my noble and learned friend Lord Havers. I can put the matter in two sentences. The right of peremptory challenge was abused by counsel for the defence, doing what he thought to be in the best interest of his client, in order to obtain a jury as favourable to his client as possible. There was clear evidence of abuse, on which this peremptory challenge has been abolished.

On the contrary, the right to stand by for the Crown has, in my experience, never been abused. There is no evidence of any abuse. What may be said to have happened in Ireland never happened in England. The right to stand by is exercised by the Crown only on good information and in the public interest.

We have instances of such cases. There have been cases involving terrorism where the police may be aware that a woman on the jury is the girl friend of the man in the dock. There have been cases of robbery, burglary, theft, bank fraud and the like in which the Crown may be aware that on the jury there is an associate of the accused. A great deal may be known which it is undesirable to state in open court. It is in the public interest that the jury should be as impartial as it is possible to make it, and that this can be done without having anything stated in open court. Counsel for the prosecution should be able to say when a name is called, "Stand by for the Crown", and that should be the end of it. I think that the right of the Crown to stand by should be preserved entirely as it is now in our law.

Lord Hutchinson of Lullington

My Lords, I should like to support the amendment on the basis put forward by the noble and learned Lord, Lord Simon, and also as someone who has been involved in a large number of cases involving the Official Secrets Act as counsel, or, in the words of the noble and learned Lord, as the goose. I support the amendment for the reason that what is sauce for the goose should be sauce for the gander.

In Committee the noble and learned Lord, Lord Havers, observed that it could not be right that someone should serve on a jury who was prejudiced and biased to the cause of the prosecution when there were reasons that were known for it but could not be disclosed. The noble and learned Lord, Lord Denning, said that the prosecution may know but cannot disclose openly that some juror is associated with the defendant in the dock. Those observations in Committee as well as some of the observations in today's debate indicate that some speakers seem to have forgotten that there are two parties to a criminal trial and not only one.

Curiously, there is something called the cause of the defence and there are jurors who are sometimes associated with the prosecution. Moreover, jurors are sometimes prejudiced and biased against the defence. In fact, very often the defence has information just as does the Crown. I found it very difficult indeed to understand the basis of the argument put forward by the noble and learned Lord, Lord Havers, a few moments ago. I was at a loss to discover under which of his three criteria fell the challenge to the lady who was the girl friend of the terrorist.

Perhaps I may spell out a few of the cases that are known to me in which the defence has been in possession of information: information that one of the jurymen on the panel was a police informer; that a businessman on the jury panel had contacts with the intelligence services because he was a man who went abroad and had business contacts behind the Iron Curtain; that a member of the jury was a member of an anti-Semitic or an anti-Arab society; that a member of the jury was having a homosexual affair with a senior civil servant; that a member of the jury panel was the mistress of a soldier who was serving in Northern Ireland. That sort of information comes within my own knowledge as being given to the defence while defending persons charged under the Official Secrets Act.

How are these matters to be dealt with now, with the prosecution having the right to stand by, which is a peremptory challenge on their part? What is the defence to do now? Ironically, the noble Earl, Lord Caithness, said in Committee that by the use of stand by, a juryman can be quietly removed with the minimum of embarrassment. That is the very reason, of course, why many noble Lords supported the vital importance to the defence of the peremptory challenge. It is exactly because the person could be quietly removed with the minimum of embarrassment in all those cases that I have indicated.

The only challenge available now will be the challenge for cause. As in the cases cited by the noble and learned Lord, Lord Havers, no cause will be able to be established. One cannot establish that someone is a police informer, that someone is having a homosexual affair with a top level civil servant or that someone is in touch with the intelligence services when he goes abroad to do business. There is no way of establishing such facts. The information will come to the defence from someone who is not prepared to come forward and give his name or in other ways.

I have been involved in a case concerned with the Official Secrets Act in which there was an Army sergeant in the dock and information came forward that one of the members of the jury was an ex-officer of the SAS. The information had not come forward in time to challenge. But, after a day or two, it became perfectly clear that that gentleman was organising the jury. Whenever a matter came up, he would be passing notes round and so on. That was clear to everyone including the press. In the end, because of the publicity that leaked out through the press, the judge was seen by both sides and the case was brought to an end and later restarted. That was a case of a vetted jury. There was information which came forward but it came forward without it being possible to justify it.

If I may say so, this is not a one-sided matter. It is not just that the Crown should have this right because the Crown is not capable of putting forward the real reasons for challenge. This is an absolutely 50:50 situation. The right has now been removed from the defence and it makes the situation in cases such as those which I have cited extremely difficult. As the noble and learned Lord, Lord Simon of Glaisdale, said, it is perfectly simple to go into chambers and be told by either side that there is an objection to a member of the jury for a certain reason or indeed an objection for a reason which the Crown cannot give for security reasons. One can perfectly well understand if that comes from the Attorney-General, and of course one would accept it.

There is no reason why that should not happen in chambers. It is not right to suggest that a member of the Bar would go into the street and give away information that has been disclosed in chambers. My own head must be stuffed with official secrets in respect of all the cases with which I have dealt, but as a professional man I am not liable to run out into the street and tell the world about them. Therefore I urge your Lordships to support this amendment.

5.30 p.m.

Lord Hooson

My Lords, I find myself in a quandary over these two amendments. The reason is quite simple. I was very much in favour of retaining the peremptory challenge, knowing, as I said on the occasion of my speech in Committee, that it had been misused. In my experience at the Bar I have never known the right to stand by for the Crown misused. On my circuit I have used the right to stand by for the Crown more often than I have used the right to peremptory challenge, although I did not use either of them very much at all. I remember once prosecuting a case and standing by a police informer. A senior police officer had told me that the man was a police informer; so, in order to save him embarrassment, I told defence counsel that I stood him by for the Crown. Nevertheless there is a quandary here. I entirely agree with my noble friend Lord Hutchinson about the instances he gave from his experience—and I could repeat one or two from mine, though nothing like as many—that you learned sometimes for the defence of some embarrassing fact relating to a person on the jury panel, and the right way of dealing with that was surely to have the right of peremptory challenge.

The noble and learned Lord, Lord Havers, referred to his guidelines, and I assume it is because successive Attorney-Generals have laid down guidelines that the right to stand by for the Crown has not, in my experience, been misused. Nevertheless the scope for misuse would be—

Lord Havers

My Lords, may I assist the noble Lord? There had not been guidelines for stand by until this Bill was in its preliminary stage, its Committee stage, in the House of Commons and the discussion about stand by came up.

Lord Hooson

My Lords, I am most grateful to the noble and learned Lord for informing me of that point. All I can say is that there were conventional guidelines, conventions that were certainly followed by the Bar, because I knew of no barrister who misused the right to stand by for the Crown either on circuit or in London. On my circuit—and I was discussing the situation with an ex-member or a member of the western circuit—I have never known the peremptory challenge to be misused either, and nor had he on his circuit.

I think the great mistake that we have made in this House is to abolish the right of peremptory challenge rather than making sure that one got rid of the misuse of it; and the misuse could have been controlled by guidelines issued by the Bar Council. They would govern the Bar and defence counsel in their use of peremptory challenge. But now we are embarking on a different course. I can see the value of retaining the right of stand by for the Crown, because it is a safeguard if properly used. At the same time, we know that, just as peremptory challenge was not misused for many generations but has been misused a little in recent times, and as the right of stand by was grossly misused in Ireland in the last century and in the early parts of this century, the power to misuse would still exist in this country. Therefore there is a considerable attraction in, what is good for the goose is good for the gander.

But the remedy that is suggested, that one goes to the judge and explains in chambers what the situation is is full of problems for the future. It involves the judge in selection of the jury and that is an objectionable process in itself. But if the defence is to be forced to rely in the future on challenge for cause, then there is no way in which we can prevent the judge from being over the years increasingly involved in the selection of the jury.

I do not know whether your Lordships fully appreciated the path upon which you were embarking when the Committee voted away peremptory challenges without considering, I think, the full consequences which we see revealed for the first time in these two amendments. On the basis that if we are to go down this road it will give an appearance of fairness and will at least keep an even balance between the defence and the prosecution, there is a good deal to be said for the amendments.

Lord Hailsham of Saint Marylebone

My Lords, I was at first not intending to take part in this debate but I feel that so many things have been said that require comment of some kind from someone who has neither the experience of my noble and learned friend Lord Simon nor the experience of my noble and learned friend Lord Havers that perhaps I am justified in doing do.

First I think that it is an important point to repeat that which has fallen from the lips of my noble and learned friend Lord Denning. if it had not been for, to my mind, overwhelming evidence that the right of peremptory challenge by the defence had been abused, I should certainly have not approved or supported its abolition. But when a right is proved to have been abused, I think one must contemplate—and I did contemplate and vote for—the abolition of the right of peremptory challenge by the defence. But as my noble and learned friend Lord Denning said, there is absolutely no evidence, anecdotal or otherwise, that the right of stand by for the Crown—which is not, despite what has been said, the same thing but sometimes amounts to the same thing—has ever been abused and no suggestion that it is ever likely to be abused.

I now come to the arguments which, always persuasively, fell from the lips of the noble Lord, Lord Hutchinson of Lullington. First, I think one should ignore any case or example which has been given where the objection to a member of the jury arises after the time when the stand by or challenge arises. It arises during the course of a case from time to time, but this has no relevance whatever to the question which we are discussing, which is the right of the Crown to stand by before the juror comes to the Book to be sworn or whatever.

I can remember, if I may be forgiven for making an absurd recollection of my own, that in a civil case where there was a common jury a pupil in my chambers came to me one afternoon and said, "I hope it does not matter, Quintin. I have just had lunch with the foreman of the jury". I was, to say the least, somewhat flummoxed. I said, "But I am afraid it does matter", and I told my opponent at once. We went into the judge and told him what had happened and appropriate action was taken. But that has nothing to do, whether in a civil or a criminal case, with the point we are discussing now. It has only to do with how you deal with something during the course of the trial.

In passing, I must say that it is much more likely that something happens in relation to a jury during the course of a trial than before a juror goes to the Book to be sworn. I remember that I had the honour of presiding before some of my noble and learned friends not so very long ago in a criminal case where we discussed what would happen as a result of something which had taken place during the course of a trial when a juror had not merely behaved improperly but had behaved improperly twice. Again, we were able to take suitable action but only when the case had reached the House of Lords. But that again is not relevant to the point we are discussing.

I come now to what seems to me to emerge as the crux of this matter and that is the goose and gander argument. I think nearly all false arguments depend upon a false analogy, and I do not accept that the goose and gander argument is in itself relevant or helpful to the point which we are discussing. That brings me back to what the noble Lord, Lord Hutchinson of Lullington, said in many of his examples where the case arose before the potential juror came to the Book to be sworn. I listened to all he said with a great deal of sympathy, but I can only say that had I been prosecuting in any of those cases—and of course I do not have the advantage of having been a Law Officer, although I am the son of somebody who did—I should have thought it my duty to have said at once, and in the interest of the defence, that that person whose quality as a juror was in dispute should be stood by. In other words, the prosecuting counsel is not just the other party to the case, as he is in a civil case, representing the plaintiff rather than the defendant. He is there to help to see that justice is done. The function of counsel for the prosecution and the profound and lasting tradition of the Bar is to the effect that counsel for the prosecution is not there simply to get a conviction. If it were the whole criminal process in this country would fall rightly into disrepute. He is there to act as a servant of justice as it were. His primary duty is first to justice and then to the court. Of course he has to present the case against the defendant as well.

The defendant's counsel is there to put forward what can properly be done, in accordance with the ethics of the profession, on behalf of his client. He is not in the same position. My own belief is that a situation exists in which the prosecution has a right which can be used in the interests of justice for a variety of different reasons, one class of which is undoubtedly the interests of the fair trial of the defendant himself. There is no evidence, anecdotal or otherwise, to suppose that the right has ever been abused within living memory or that it ever will be abused in the foreseeable future. It has been supported and constrained by guidelines put forward in the first place by my noble and learned friend when he was Attorney-General in the interests of justice. In those circumstances, despite the goose and gander argument, I feel quite strongly that we have a valuable right and that no case has been made for its abolition.

Lord Elwyn-Jones

My Lords, I venture to think that there will be agreement in your Lordships' House about the proposition that it is essential in a democracy that there should be confidence in the fairness of the criminal trial process. In the past that has commanded the view that justice not only must be done but must be seen to be done. I know that that is an old-fashioned expression but it is a very important one.

If the outcome of our deliberations on this matter is that, having decided to abolish the right of peremptory challenge on the part of the defence we nevertheless retain the unlimited power of challenge by the Crown, there would be a public sense that fairness has gone out of the doors of the House of Lords. That is why I support the amendment we are now debating.

We are discussing Amendment No. 106 along with Amendment No. 105. I feel that there should be a sense of an equality of footing by prosecution and defence. That sense would go if the outcome of our discussions on this matter was one-sided and one-sided only. Naturally I have even more years of experience as Attorney-General than another noble Lord who has spoken. At any rate I am aware of the importance of the fact that the issue of the public interest may make it desirable that matters known to the Crown should not become publicly stated in the process of showing cause. That is why I support Amendment No. 106 and have had full sympathy with, and support for, the approach of the noble and learned Lord, Lord Simon of Glaisdale, on this matter. That approach, it seems to me, achieves a balance which is not merely theoretical but goes profoundly to the sense of confidence in the courts. It is for the reasons that the noble and learned Lord has given and I have given that I propose to support the two amendments on the Marshalled List.

Lord Benson

My Lords, I was a member of the Roskill Committee. Amendments Nos. 105 and 106 appear to meet exactly what that committee had in mind. In other words if the Crown has the right to challenge for cause and it also has the right of having confidential matters heard in chambers, it seems to me appropriate for stand by to be abolished. I was therefore puzzled as to why the Government wished to retain stand by and I made inquiries about it. I received two pieces of information, both of which have been given to the House this evening by the noble and learned Lord, Lord Havers.

The first was that in cases of terrorism or national security, the tip-off (if that is the right word to use) or the secret information available was so sensitive that it was not appropriate for it even to be disclosed in chambers. The second piece of information, also confirmed tonight, was that very stern measures would be taken to ensure that the right of stand by for the Crown would not be abused. If that information is correct—I have no wish to disagree—I accept it. I do not know what the other members of the Roskill Committee would have done if they had had the same information as has been made available tonight. For my part I accept those two pieces of information as conclusive and I hope that stand by for the Crown will be retained.

5.45 p.m.

The Earl of Caithness

My Lords, this is perhaps the single most significant issue left for us to discuss on the Bill. Therefore, it is good for the House that we can welcome back the noble and learned Lord, Lord Elwyn-Jones, after his travels to America. I am grateful to the noble Lord, Lord Wigoder, for placing his arguments before us, as ever with his normal cogency and clarity.

My response to what has been a stimulating debate will take two forms. First, I want to question very vigorously the argument of principle on which the noble Lord bases his case. Secondly, I think it might be of assistance to your Lordships' House—and indeed of some reassurance—if I set out the practical arrangements which the Government have in mind for the use of stand by in future.

The first argument boils down to something that the noble Lords, Lord Hutchinson of Lullington and Lord Hooson, said. That was that there is no reason why what is sauce for the goose should not also he sauce for the gander. It is an attractive argument and I have great respect for those who have advanced it in debate today. But I, like my noble and learned friend Lord Hailsham of Saint Marylebone, do not believe that it is well made.

It assumes in the first place that identity of treatment between prosecution and defence over procedural matters of this kind is necessary for a fair trial. But the law does not provide identity of treatment now. Peremptory challenge is limited to three for each defendant. The ability of the prosecution to stand jurors by for the Crown is unrestricted. As often happens in our common law system, the two procedures have developed differently over time, as the judges have responded to changing circumstances. Theoretically they differ, because theoretically the Crown stands ready to give cause should the panel of jurors be exhausted. I shall not make too much of that. The noble Lord, Lord Wigoder, chided me for mentioning it in Committee and described the distinction as entirely academic in practice. Although I would not necessarily dissent from that view, there is distinction in law and it is worth remarking on.

The practical distinction which can be made and which is by no means academic is in the use which is actually made of the two facilities. The survey conducted last year by the Crown Prosecution Service suggested that stand by is used sparingly, in no more than 4 or 5 per cent. of all cases. Peremptory challenge is used in 20 per cent. of cases with a single defendant and in almost a third of those with more than one defendant. In multi-defendant cases in inner London, the rate rises to 45 per cent. and a survey of cases handled by the Director of Public Prosecutions before the establishment of the Crown Prosecution Service found that one or more peremptory challenges were used in three-quarters of them.

Stand by is also used for reasons quite different from those usually put foward for the exercise of the right of peremptory challenge. One cannot be sure, but my impression from discussion with those who are more familiar with the courts than I is that it is very often used for the convenience of the court and certainly not to advance the tactical interests of the prosecution.

That brings me to the more important difference of principle. I agree with my noble and learned friend that in our system the prosecution's interest in conviction is not identical with the defence's interest in acquittal. The prosecutor is almost always a public official, pursuing a public interest, which is not invariably best served by conviction. That is why, in contrast to some Continental systems, our system provides that the decision whether to prosecute is a discretionary one. Sometimes the wider view of the public interest which the prosecutor brings points towards not bringing a case to court even though there may be sufficient evidence to secure a conviction.

The same is true during the trial. The prosecutor's purpose is to secure a conviction where the facts justify one, but it is not his only purpose. He has a wider public interest in view. That is why, while it can be argued quite plausibly that defence counsel has a duty to use peremptory challenge, even tactically, in his client's interests, no one could argue that prosecution counsel is under a duty to use stand by in the same way. The truth is that there is a fundamental difference between the motives of the two parties in a criminal trial.

The case for identity of treatment between prosecution and defence does not therefore seem to me to be made out, either in principle or by reference to what now happens in practice. But we have accepted that it would be right to accompany the abolition of peremptory challenge with a severe restriction of the future use of stand by. As my noble and learned friend Lord Havers mentioned, he as Attorney-General looked at the Bill at Committee stage in another place and arranged for guidelines to be drafted for prosecutors on the future use of stand by, which some of your Lordships will have seen.

Those guidelines make it clear that stand by is to be used only sparingly and not with a view to influencing the overall composition of the jury or gaining a tactical advantage for the prosecution. But they do more. They restrict very severely the types of cases in which stand by could be used. In the first place there are the terrorist and security cases which my noble and learned friend Lord Havers mentioned in Committee and has mentioned again this afternoon. In such cases, under published guidelines which have existed for some years, the Attorney-General may authorise a check of the jury list. These cases are few in number. There were only 11 in the whole of the period from 1982 to mid-1985 affecting eight jurors. Checks are authorised personally by my right honourable and learned friend the Attorney-General. Their purpose is to identify jurors who may constitute a security risk or be vulnerable to improper pressure.

Those are highly sensitive matters. Sometimes the information on the basis of which it is decided to stand a juror by, or more particularly the source of that information, cannot be revealed without risk of substantial damage to the national interest. In the Government's view, the right of stand by must be retained to meet circumstances of that kind. For reasons which I shall come to, we do not consider that the hearing of challenges for cause in chambers or in camera would be an adequate substitute.

The noble Lord, Lord Wigoder, said that there might be alleged abuse by the prosecution because there was no control by the Attorney-General. We have thought about that point. I can tell your Lordships today that in future my right honourable and learned friend the Attorney-General will expect to give authority for the removal of jurors in such circumstances personally, just as he is personally responsible for authorising jury checks in those sensitive cases. I hope that is of some reassurance to your Lordships. It is a major move by Her Majesty's Government to meet the concern of the noble Lord, Lord Wigoder.

The second type of case for which under our proposals stand by would continue to be available is the case in which someone is manifestly unsuitable for jury service. Again those of your Lordships who are more familiar than I with life in the courtroom may correct me. But my understanding is that it sometimes happens that a juror comes forward who may be clearly disoriented, distressed or unable to read the oath. Defence and prosecution counsel exchange glances, and the person is removed without embarrassment using stand by.

There is no advantage to the prosecution in that, but it seems to us a sensible arrangement which it would be a pity to lose. What I can say, however—and it is a development of our earlier position—is that my right honourable and learned friend the Attorney-General would be prepared to consider revising the guidelines so that the prosecution would not stand by a manifestly unsuitable juror without the agreement of the defence. This would be a substantial further narrowing of the use of stand by and goes a long way to meet the concerns of the noble Lord, Lord Wigoder. It would mean in effect that the only cases in which the prosecution stood jurors by without defence agreement would be those rare ones involving terrorism or national security in which my right honourable and learned friend the Attorney-General had authorised a jury check. Even then my right honourable and learned friend would personally authorise the use of stand by.

Perhaps I may turn now to the noble Lord's second amendment, in which he has proposed that the judge should have power to order that challenges for cause should be heard in chambers or in camera. This raises two distinct issues. The first is whether, as the noble Lord has argued this afternoon, such a procedure would be an adequate substitute for stand by in security and terrorist cases. I do not believe that it would. As I have said, the information on which a decision to stand a juror by would be based in such cases can often be highly sensitive. It would in the Government's view be most undesirable for it to be disclosed, even in chambers.

A particular consideration which I must draw to your Lordships' attention is that, if there were a hearing in chambers, it would be highly questionable whether one could properly deny the defendant the right to be present. It might be said that his counsel could be trusted to maintain the confidence of a hearing in chambers. But what if he chose not to be represented, perhaps even as a tactical ploy to provoke precisely the kind of dilemma I have described? If we accepted the noble Lord's amendment, we would be legislating for all cases. We would be running the risk that at some future time a vital prosecution could not be mounted because of the risk that sensitive information would be compromised. I must say to your Lordships frankly that I do not believe it would be right to take that risk.

The noble and learned Lord, Lord Simon of Glaisdale, said that it would be a breach of professional duty for counsel to leak details of proceedings held in chambers. That may be so and I do not wish to cast any aspersions on the Bar. But in the world of terrorism and national security the consequences could be catastrophic if any defence representation did fall short of the standards which are expected. The consequences would be disastrous.

The second issue which the noble Lord's amendment raises is more general. Would it be right to give the court a power to order the hearing of challenges for cause in chambers? Here there are conflicting considerations. I dare say that if we were considering the issue in a vacuum some of your Lordships would argue that to do so would breach the principles of open justice. That is an argument that has been levelled at me earlier in our debates.

On the other hand, it might be argued that the abolition of peremptory challenge and the considerable restriction of stand by, as I have described this afternoon, strengthens the case for challenges for causes to be heard privately where the judge sees good reason for doing so. There may well be cases which could be argued as challenges for cause but never get that far now because the juror can be removed without reason given. In some of those, the giving of reasons in open court could well cause avoidable embarrassment or distress to the juror or others involved in the case.

I should like, if the noble Lord agrees, to reflect on this aspect of the matter between now and Third Reading. It is not altogether clear what effect the noble Lord's amendment would have on the law as it stands. It may be that, if it were decided to establish such a power, it would be better to tackle the matter in rules, if the Crown Court Rules Committee agreed. I should like to give further thought to that with my noble and learned friend the Lord Chancellor and come back to it later.

On the major issue before us I am, however, in no doubt. Prosecution stand by and peremptory challenge are not identical, any more than are the roles of the prosecution and the defence. The issue is therefore not the clear-cut one of equity which the noble Lord represents it to be. We have brought forward proposals to restrict the use of stand by to a bare minimum, under the authority of my right honourable and learned friend the Attorney-General, who is answerable to Parliament for its operation.

Perhaps I may recap on the proposed situation following what I have said. As a result of the further restrictions which I have announced today, stand by would be available only in a tiny number of the most sensitive cases and only on the personal authority of my right honourable and learned friend the Attorney-General or where the defence agrees. Notwithstanding that our debate this afternoon has again been dominated by five noble and learned Lords and three QCs, I do not believe that the impartial witness—the man on the Clapham omnibus—who witnessed our debate today would regard that as unreasonable or in any way reducing his confidence in the judiciary. Should the noble Lord decide to divide the House on this issue, I urge your Lordships as strongly as I can to register your support for that view in the Division Lobby.

6 p.m.

Lord Wigoder

My Lords, the noble Earl, Lord Caithness, has recognised the weight of the argument in this case and has indicated significant concessions. It is absolutely right that I should say that with regard to the merits of Amendment No. 105. On Amendment No. 106, the noble Earl has said that he would like to reflect upon the matter between now and the final stage of this Bill. I take the view that it would be churlish of me in the circumstances not to go along with the spirit of what the noble Earl has said, and to enable him to reflect upon this matter between now and the next stage.

Perhaps I may indicate what has primarily concerned me and many noble Lords who have spoken in this debate. I am most grateful for the contributions that have been made. First, it is the determination that our criminal trials not only should be fair, but should appear to the outside world—to the general public—to be fair; and secondly, it is the determination to show that your Lordships' House is capable of being fair by holding a proper balance in this Bill between the prosecution and the defence.

In clause after clause, perfectly properly—and I have gone along with a great deal of it—we have put forward measures which will strengthen the hand of the prosecution. This amendment relates not to whether we should strengthen the hand of the defence but to whether we should hold both prosecution and defence in a proper balance. Perhaps the noble Earl ought to reflect upon that matter between now and the next stage. Subject to those observations, I shall beg leave to withdraw the amendment.

The Earl of Caithness

My Lords, perhaps I may make it absolutely clear that I would reflect on Amendment No. 106. However, the reflection on Amendment No. 105 seems to have reached as far as we can go.

Lord Wigoder

My Lords, if it is appropriate for the noble Earl to reflect on Amendment No. 106, perhaps it is equally appropriate for me to reflect on Amendment No. 105. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 106 not moved.]

Lord Wigoder moved Amendment No. 107: After Clause 111, insert the following new clause:

("Discretionary deferral of jury service.

. The following section shall be inserted after section 9 of the Juries Act 1974—

"Discretionary deferral.

9A.—(1) If any person summoned under this Act shows to the satisfaction of the appropriate officer that there is good reason why his attendance in pursuance of the summons should be deferred, the appropriate officer may defer his attendance, and, if he does so, he shall vary the days on which that person is summoned to attend and the summons shall have effect accordingly.

(2) If an application under subsection (1) above has been granted or refused, the powers conferred by that subsection may not be exercised subsequently in relation to the same summons.

(3) Crown Court rules shall provide a right of appeal to the court (or one of the courts) before which the person is summoned to attend against any refusal of the appropriate officer to defer his attendance under subsection (1) above.

(4) Without prejudice to the preceding provisions of this section, the court (or any of the courts) before which a person is summoned to attend under this Act may defer his attendance.").

The noble Lord said: My Lords, on the basis that one cannot win them all, I now come to Amendment No. 107, which is a very short and non-contentious matter. At Committee stage I put forward an amendment which proposed that, in addition to the power which the court has to order a person to do jury service, or to exempt him from jury service, there should be an additional power to enable the court to defer jury service, a power that at the moment the courts do not have. I indicated at that time that as I had drafted it myself the drafting was clearly faulty. The Minister was good enough to say that he agreed in principle with the proposal. He has reflected on it and has now provided me with the draft which is the subject of Amendment No. 107.

I am most grateful to the draftsman for his help in the matter, and to the noble Earl, Lord Caithness, for his support. In the circumstances I do not think that I need say any more. I beg to move.

The Earl of Caithness

My Lords, as the noble Lord, Lord Wigoder, said, not all of us can win all the time but the noble Lord has won on this amendment. I am very happy to support him.

On Question, amendment agreed to.

Lord Wigoder

I should have said that I was speaking at the same time to Amendment No. 137, which would be consequential, my Lords.

The Deputy Speaker (Lord Strabolgi)

My Lords, when we come to Amendment No. 137, perhaps the noble Lord will move it formally.

Clause 114 [Custodial sentences for young offenders]:

Baroness Faithfull moved Amendment No. 108: Page 85, leave out from beginning of line 1 to ("offender") in line 2 and insert ("an").

The noble Baroness said: My Lords, this amendment concerns the age at which juveniles may be detained in a young offenders' institution. The amendment would mean that the age of 15 years should be the minimum for both boys and girls.

The Bill as it stands provides that the minimum age for the new sentence shall be 14 years for boys and 15 years for girls. At our last debate on this matter the Minister said that it did not infringe the Sex Discrimination Act. However, may I ask my noble friend whether he has taken into account the European Convention on Human Rights? Would it not infringe that convention? With the introduction of a unified custodial sentence it is difficult to see any justification for maintaining sexual discrimination. I ask the Minister to consider this matter.

Lord Hunt

My Lords, I am very happy to have my name attached to this amendment in support of the proposition of the noble Baroness. With regard to the age—upon which the noble Baroness did not expatiate—one has only to look at the statistics for reoffending by young people who have had the experience of prison department junior establishments. These figures have been repeated time and time again. The latest figures I have are the failure rate. The rate of reoffending within two years of leaving a detention centre is 72 per cent., and of leaving a young custody centre, 83 per cent. The evidence is that the highest rate of reoffending on leaving one or other of those establishments is at the lowest end of the age range; that is among the 14 year-olds.

The inference to be drawn is clearly that the younger the offender is subjected to the experience of a prison department establishment the more likely it is that experience will turn him or her into a young criminal. The argument which follows naturally from that inference is that the 14 year-olds should be kept out of the young offender establishments run by the prison service. If one accepts that there are undoubtedly a few 14 year-old boys and girls who, in the course of their growing up, constitute a physical danger to the public, they should be kept secure in a care establishment—I have forgotten the exact name—but they should be kept in the secure unit of a care establishment not run by the prison service.

The Earl of Caithness

My Lords, as I said during the Committee stage, the principle that we followed in establishing the new custodial sentence was to leave what I described as the "coverage" of custody unaffected. This means, as my noble friend has reminded us, that the courts would have power to impose a custodial sentence of up to four months on a 14 year-old boy, as they do now. We adopted this approach on the basis that Parliament had gone into these matters in some detail in 1982, and that the prime need was to create a unified sentence.

In relation to 14 year-old boys, we also felt that there were some boys of that age who committed offences which, while not sufficiently serious to attract a longer sentence under Section 53 of the Children and Young Persons Act 1969, nevertheless justified custody. There are not many such cases—only just over 500 in the whole of last year—but they occur and it seemed to us that it was better to preserve the courts' powers as they are.

It will be clear from what I have already said in Committee, and, indeed, on this part of the Bill at Report stage, that the Government are keen to encourage the sparing use of custody for juveniles. I referred then to the very substantial drop in the numbers of immediate custodial sentences in that age range, from 7,900 in 1981 to 4,500 in 1986. We are therefore not out of sympathy with my noble friend on this subject, but I can give her no encouragement to pursue further the specific issues in the amendment.

My noble friend asked me a specific point on the European Court of Human Rights. I am not aware that this matter has any implications with regard to our obligations under the European Convention on Human Rights. But if my noble friend would like to say against which article she believes our policy offends I shall be glad to look at the matter in some depth.

Baroness Faithfull

My Lords, I thank the noble Lord, Lord Hunt, for his support. I am sad and sorry that the Minister feels unable to accept this amendment. It hurts me to say that there is now not much difference between boys and girls, in that as many girls commit offences as do boys. I believe that those of us who deal with boys and girls do not really consider that there is much difference in that respect. I shall not press the amendment, but I hope that the Minister will bear it in mind. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 108A: Page 85, line 17, leave out from ("institution") to ("less") in line 18 and insert ("for")

The noble Earl said: My Lords, I beg to move Amendment No. 108A and, with the leave of the House, to speak to Amendments Nos. 108B, 110A, 111A, 111B, 111C and 111D. These Amendments make several minor corrections to the provisions which were added to the Bill in Committee to bring about a unified custodial sentence for young offenders. I beg to move.

Baroness Faithfull

My Lords, I believe the Minister included Amendment No. 110.

The Earl of Caithness

Amendment No. 110A, my Lords.

Baroness Faithfull

My Lords, nevertheless, on the question of the abolition of the power of the court to commit juveniles to remand centres instead of to local authority care, we wish to support, or at least thank, the Government for considering this matter. Many people will welcome the amendment.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 108B: Page 87, line 3, leave out ("(3)") and insert ("(4)").

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 109: After Clause 114, insert the following new clause:

("Detention of young offenders in Scotland.

.—(1) In each of sections 207 and 415 of the Criminal Procedure (Scotland) Act 1975 for subsections (5) to (10) there shall be substituted the following subsection— (5) A sentence of detention imposed under this section shall be a sentence of detention in a young offenders institution.".

(2) Subject to subsection (3) below, in any enactment—

1. (a) for a reference to a detention centre there shall be substitued a reference to a young offenders institution; and
2. (b) for a reference (however expressed) to a detention centre order there shall be substituted a reference to a sentence of detention in a young offenders institution.

(3) Nothing in subsection (2)(b) above applies—

1. (a) to section 21 of the Firearms Act 1968;
2. (b) to Part I of Schedule I to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980;
3. (c) to section 41(2) of the Criminal Justice (Scotland) Act 1980.

(4) The amendments and transitional provisions in Schedule [Detention of Young Offenders in Scotland] to this Act shall have effect.")

The noble Earl said: My Lords, I beg to move Amendment No. 109 and, with the leave of the House, to speak to Amendment Nos. 111, 112, 141, 146 and 150. The purpose of this group of amendments is to provide for a single custodial sentence for young offenders in Scotland by deleting from statute the sentence of detention in a detention centre and relying solely on the sentence of detention in a young offenders' institution. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 109A: After Clause 114, insert the following new clause:

("Abolition of power of court to commit juvenile to remand centre instead of local authority care.

. Section 22(5) of the Children and Young Persons Act 1969 shall cease to have effect.").

The noble Earl said: My Lords, I beg to move Amendment No. 109A and to speak to Amendment No. 143. These amendments discharge an undertaking that I gave in Committee. They repeal a provision of the Children and Young Persons Act 1969 under which a court may commit to a remand centre a juvenile for whom it has made, or is considering making, an interim care order. For the reasons which I gave in Committee, we are satisfied, after consultation, that it would be right to dispense with this power. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 110: After Clause 114, insert the following new clause:

("Amendment of section 53(2) of Children and Young Persons Act 1933

. The following words shall be substituted for words in section 53(2) of the Children and Young Persons Act 1933 (punishment of certain grave offences) from the beginning of the subsection to "law"— Where:—

1. (a) a young person is convicted on indictment of any offence punishable in the case of an adult with imprisonment for fourteen years or more, not being an offence the sentence for which is fixed by law; or
2. (b) a child is convicted of manslaughter,".").

The noble Earl said: My Lords, I beg to move Amendment No. 110 and to speak to consequential Amendment No. 142. With the leave of the House, I shall speak also to Amendment No. 114 in the name of my noble friend Lady Faithfull and the noble Baroness, Lady Ewart-Biggs. This amendment follows up an undertaking that I gave in Committee to consider whether we could legislate to remove an anomaly in Section 53(2) of the Children and Young Persons Act 1969. At present the section covers juveniles under 14 where they are charged with manslaughter and where they are jointly charged with an adult.

It seems right that these exceptional powers should be available, even for such young people, when the offence is manslaughter, as they are for murder. But it is curious, to say the least, that they are otherwise available only when the child happens to be jointly charged with an adult.

My noble friend Lady Faithfull somewhat anticipated our decision on this, and her Amendment No. 114 has the same purpose. I hope, however, that she will be willing to join me in supporting the Government's version. I beg to move.

On Question, amendment agreed to.

6.15 p.m.

Schedule 8 [Custodial sentences for young offenders]:

The Earl of Caithness moved Amendment No. 110A: Page 128, line 15, leave out ("Part II of").

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 111: Page 128, line 34, leave out ("a detention centre or").

On Question, amendment agreed to.

The Deputy Speaker

My Lords, in calling Amendment No. 111A, I have to inform the House that, due to a printing error, there are no line references on page 129 of the Bill.

The Earl of Caithness moved Amendments Nos. 111A, 111B, 111C and 111D:

Page 129, line 1, at end insert— (".In Part I of Schedule 1 to the Juries Act 1974 (persons ineligible for jury service), in the definition of "penal establishment" in Group B, for the words from "prison" to the end there shall be substituted the words "establishment regulated by the Prison Act 1952".").

Page 129, line 2, leave out paragraph 7.

Page 129, line 37, after ("A") insert ("person who at the commencement of section IA of the Criminal Justice Act 1982 is detained in a detention centre or youth custody centre by virtue of a").

Page 129, line 43, leave out from ("be") to end of line 44 and insert ("detained in such young offender institution as the Secretary of State may direct, and any enactment applying to persons detained in young offender institutions shall apply to a person so detained under this paragraph.").

On Question, amendments agreed to.

The Earl of Caithness moved Amendment No. 112: After Schedule 8, insert the following new Schedule—

("SCHEDULE

DETENTION OF YOUNG OFFENDERS IN SCOTLAND

PART I

AMENDMENTS

Prisons (Scotland) Act 1952 (c. 61)

1. In section 31(1) of the Prisons (Scotland) Act 1952 for paragraph (d) there shall be substituted the following paragraph— (d) young offenders institutions, that is to say, places in which offenders sentenced to detention in a young offenders institution may be kept.

Army Act 1955 (c. 18)

2. In section 71AA(6) for paragraph (b) there shall be substituted the following paragraph— (b) where the offender is in or removed to Scotland, a young offenders institution.

Air Force Act 1955 (c. 19)

2. In section 71AA(6) for paragraph (b) there shall be substituted the following paragraph— (b) where the offender is in or removed to Scotland, a young offenders institution.

Naval Discipline Act 1957 (c. 53)

2. In section 43AA(6) for paragraph (b) there shall be substituted the following paragraph— (b) where the offender is in or removed to Scotland, a young offenders institution.

Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55)

5. In paragraph (b) of Part II (Persons Disqualified) of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 in sub-paragraph (i) for the words "or detention" there shall be substituted the words "detention or youth custody".

Criminal Justice (Scotland) Act 1980 (c. 62)

6. In section 41(2)(b)(ii) of the Criminal Justice (Scotland) Act 1980 after the words "detention in a" there shall be inserted the words "young offender institution or."

PART II

TRANSITIONAL PROVISIONS

7. An offender who was ordered to be detained in a detention centre on a date before the commencement of section [Detention of young offenders in Scotland] (1) of this Act shall, if the order has not expired at the commencement of that section, be treated for all purposes of detention, release and supervision as if he had been sentenced to detention for the like term in a young offenders institution.

8. A custodial order—

1. (a) under section 71AA 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,

shall be treated for all purposes of detention, release and supervision of the offender as a sentence of detention in a young offenders institution.

9. Section 5 of the Rehabilitation of Offenders Act 1974 (rehabilitation periods) shall continue to apply as regards any person who, before the commencement of section [Detention of young offenders in Scotland] (1) of this Act, had served a sentence of detention in a detention centre as if the said section [Detention of young offenders in Scotland] (1) had not been commenced.").

On Question, amendment agreed to.

Schedule 9 [Supervision]:

The Deputy Speaker

My Lords, in calling Amendment No. 113, I have to inform the House that in paragraph (ii) (a), line 4, "imposing" should read "including".

Baroness Faithfull moved Amendment No. 113:

Page 134, line 28, leave out ("that it is making the order instead of a custodial sentence") and insert— ("(i) that it is making the order instead of a custodial sentence; (ii) that it is satisfied that—

1. (a) The offender has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to any non-custodial penalty other than a supervision order imposing such a requirement; or
2. (b) only a supervision order including such a requirement or a custodial sentence would be adequate to protect the public from serious harm from him; or
3. (c) the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it other than a supervision order including such a requirement could not be justified; and

(iii) why it is so satisfied.").

The noble Baroness said: My Lords, this matter was discussed at the last stage of the Bill. I wonder whether the Minister feels able to reconsider the situation. In this amendment, if the court imposes a specified activities requirement and the young person infringes that requirement, then the case can come back to court and a custodial sentence may be made.

We are all trying hard to keep children out of custody. I feel that perhaps this is a loophole where they may have a custodial order made for an offence which is not a criminal offence. They have not committed a crime. If the Minister is unable to accept the amendment, will he consider that when making a custodial sentence the magistrates should give the reason why they consider it necessary? I beg to move.

Lord Hunt

My Lords, I rise again to support the noble Baroness, particularly with regard to paragraph (iii)—the requirement that a court should state in open court the reason why it thinks that a custodial sentence is justified, even though at that point the court does not propose to impose a custodial sentence.

I see this as a brake on the disposition of any court, particularly a magistrates' court, to impose a custodial sentence. As far as that is so—in that it acts as a brake at that point on the imposition of a custodial sentence—the amendment is obviously to be welcomed.

The Earl of Caithness

My Lords, there has not been time to consult bodies such as the Magistrates' Association about my noble friend's amendment, and we shall be ready to listen to argument on it as the Bill continues its progress. But on the face of it it is a sensible refinement of our original proposal and one which should cause the courts to use the new procedure sparingly and only in cases where, were it not for the availability of the strengthened supervision order, a custodial sentence would be necessary. I am therefore glad to be able to say that we can accept my noble friend's amendment.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 113A: After clause 117, insert the following new clause:

("Computation of sentence—time passed in care of local authority in accommodation provided for restricting liberty.

.—(1) At the end of section 67(1A) of the Criminal Justice Act 1967 there shall be added the words "or—

(c) any period during which, in connection with the offence for which the sentence was passed, he was in the care of a local authority by virtue of an order under section 23 of the Children and Young Persons Act 1969 and in accommodation provided for the purpose of restricting liberty.".

(2) This section shall not have effect in relation to any sentence imposed before it comes into force.")

The noble Earl said: My Lords, I beg to move amendment No. 113A. It may be convenient if at the same time I speak briefly to Amendment No. 134A.

This is the amendment to which the noble Lord, Lord Henderson of Brompton, referred when he was good enough not to move his own similar proposal. It responds to the case made in Committee by the noble Lord, Lord Irvine of Lairg, among others, for allowing time spent by young offenders in secure accommodation to count towards their eventual sentence.

As I said when we discussed the matter in Committee, we already encourage the courts to operate informally in accordance with that principle, and local authority social services departments are encouraged to supply the information to enable them to do so. But there is a strong argument, which the Magistrates' Association among others has put to us, for putting this on a formal basis. Hitherto, we have doubted whether the information available from social services departments was sufficiently clear-cut and reliable for a statutory provision to be workable in practice. We have now overcome these doubts and are ready to make the necessary provision.

Amendment 134A corrects an error in the same provision of the Criminal Justice Act 1967. I beg to move.

Lord Henderson of Brompton

My Lords, I thank the noble Earl very much for moving this amendment and the subsequent consequential amendment. It is only fair that that should be done. I am sure that the noble Lord, Lord Irvine of Lairg, would wish to be associated with my thanks. I am grateful to the noble Earl.

On Question, amendment agreed to.

[Amendment No. 114 not moved].

Baroness Ewart-Biggs moved Amendment No. 115: After Clause 117, insert the following new clause:

("Detention of person aged 17 to 20 for default.

.—The following section shall be substituted for section 9 of the Criminal Justice Act 1982—

Detention of a person aged 17 to 20 for default.

9. In any case where, but for section 1(1) above, a court would have power to commit a person under 21 but not less than 17 years of age to prison for contempt of court or any kindred offence, the court shall have power, subject to section 1(5) above, to commit him to be detained under this section".")

The noble Baroness said: My Lords, the purpose of the new clause is to remove the courts' power to order detention for a young person aged between 17 and 20 for non-payment of a fine. My first point is that a large number of young people serve custodial sentences for not paying their fines. In 1986, out of 18,000 people received into prison in default of payment of a fine nearly 4,500 were young males between the ages of 17 and 20. That means that nearly one-quarter of those received into prison in default of payment of a fine were young people between the ages of 17 and 20. The proportion nearly doubled between 1976 and 1986.

That points to the fact that for many reasons young people find it difficult to pay their fines. First, young people are more likely to have low incomes. They may be unemployed, or employed for the first time; and in any event they are in the process of learning how to manage their finances. With the changes in entitlement under the Social Security Act, due to be implemented in April, young people who are not married and who have no children will receive lower rates of benefit that other claimants. Therefore, my first point is that young offenders may be more liable than their adult counterparts to fail to pay fines because they have less money.

My second argument is one that is often put by the Government; namely, that if the proposal were accepted it would serve to reduce the total number of people in prison and, in particular, limit the number of young people in custody. It has been proved time and time again that if custody is imposed on young offenders it is counter-productive. That argument has been put forward many times during the Bill's passage.

Young people suffer lasting damage from custodial sentences, through loss of job prospects, damage to family relationships, and so forth. In addition, NACRO has carried out research which shows that most young offenders grow out of crime. Most young people go through a period when they have much less respect for the law. One notices, even in fairly well-ordered families, that young people pass through a stage when they have little respect for the law. They gain a greater respect as they become older. That being so, some allowance should surely be made for young offenders who largely commit minor offences for which they are likely to have to pay a fine. Nonpayment should be wilful before people are imprisoned for it.

As I have pointed out there are various reasons for young people not paying their fines. They may merely be unable to pay a fine through lack of funds, and therefore their non-payment is not wilful. If the new clause were to be incorporated into the Bill, offenders aged between 17 and 20 who did not pay their fines would still be eligible for attendance centre orders; and it might be appropriate to enact a new provision making community service orders available, or to utilise other types of sentence.

Lastly, I shall point out that on 5th November this year Mr. John Patten, in a Written Answer in another place, stated: it is the Government's policy to encourage more use of non-custodial measures for offenders under 21. There has been a positive response to this approach with juvenile offenders under 17, and the Government are considering how the use of such measures might he developed for 17 to 20-year-olds".—[Official Report, Commons, 5.11.87; col. 826.]

My amendment would make a substantial contribution to such measures. I hope that the Minister will respond favourably to it.

The Earl of Caithness

My Lords, the fine is by a long way the most used of any disposal available to the courts in dealing with young adult offenders. In 1986, about 40 per cent. of all young adults convicted of indictable offences were fined. This heavy use suggests that the courts see the fine as the most useful of the sentences available to them. It has many advantages. It is a clear and forceful indication of the courts' disapproval of the young offender's behaviour. It punishes the offender without interfering significantly with his life. While not necessarily a direct alternative to a custodial sentence, it has the great virtue, which I am sure your Lordships' House will endorse, of being one way to ensure that young people are spared the custodial experience.

The noble Baroness has explained that the objective behind this amendment is to help reduce the number of young people going into custody. The reduction in the unnecessary use of custody for young people is an aim that the Government share. The noble Baroness quoted a Written Reply made in another place by my honourable friend. We are not persuaded, however, that this amendment would help in that respect. The fine is likely to be effective only so long as there is an effective sanction to enforce it. At present most young adults who receive fines pay them. I ask your Lordships to consider what the likely effect would be of the removal of custody as a sanction for non-payment of fines. We cannot know, but a common-sense view is that there would be a significant reduction in the proportion of fines paid.

That of course is undesirable of itself. But we must also further consider what the courts' likely reaction to such a change might be. Is it not likely that they would reassess their view of this most useful of disposals and find other ways to deal with offenders? That may be perfectly acceptable. But my fear is that it may mean some move towards a greater use of custody as an initial disposal. Thus the intended purpose behind this amendment would be confounded. This, I accept, is speculation. But I would suggest that it is a plausible ever-likely scenario. I would not wish to run the risk of being proved right.

The better approach, I suggest, is to continue our efforts to encourage the courts to use committal in default very much as a last resort, and not to overlook the other options open to them. We discussed this earlier in the Bill's progress, and I shall not go into it now.

In the light of what I have said, I hope that the noble Baroness will see the logic of my argument and agree to withdraw her amendment.

Baroness Ewart-Biggs

My Lords, I do not see the logic of the noble Earl's argument. The purpose of my amendment is to ensure more non-custodial measures for offenders between the ages of 17 and 20. I pointed out that one-quarter of all people in prison for fine default are between the ages of 17 and 20, which is the age group that we are trying to keep out of prison. While I am grateful to the Minister, I do not feel that what he has put forward is any comfort to those of us proposing the amendment.

I beg leave to withdraw the amendment, and I shall read carefully what has been said.

Amendment, by leave, withdrawn.

6.30 p.m.

Baroness Faithfull moved Amendment No. 116: After Clause 117, insert the following new clause:

("Children's hearing system

.—(1) No child or young person shall be prosecuted for any offence except on the instructions of the Director of Public Prosecutions or at his instance.

(2) A panel (to be called "the children's panel") shall be formed for every local authority area for the purposes of this section.

(3) Sittings of members of the children's panel, hereinafter referred to as children's hearings, shall be constituted from the panel to perform, in respect of children who may require compulsory measures of care, the functions assigned to those hearings by this section.

(4) A children's hearing shall consist of a chairman and two other members and shall have both a man and a woman among the members.

(5) Any children's hearing shall be conducted in private and no person other than a person whose presence is necessary for the proper consideration of the case which is being heard, or whose presence is permitted by the chairman, shall be present.

(6) The Secretary of State may make rules for the constituting and arranging of children's hearings and for regulating the procedure of those hearings.

(7) Where a prosecuting officer receives information from any source of the commission of an offence by a child or young person or of abuse or neglect of a child or young person, he shall, after making such initial investigation as he may think necessary, proceed with the case in accordance with the provisions of this section.

(8) Where the prosecuting officer decides that no further action on the case is required, he shall, where he considers this to be the proper course, so inform the child or young person and his parent.

(9) Where the prosecuting officer considers it to be the proper course, he shall refer the case to the local authority with a view to their making arrangements for the advice, guidance and assistance of the child or young person and his family.

(10) Where it appears to the prosecuting officer that the child or young person is in need of compulsory measures of care, he shall arrange a children's hearing to whom the case shall stand referred for consideration and determination.

(11) Where the prosecuting officer has arranged a children's hearing in pursuance of subsection (10) above, he shall request from the local authority a report on the child or young person and his social background and it shall be the duty of the authority to supply the report which may contain information from any such person as the prosecuting officer or the local authority may think fit.

(12) A parent of a child or young person shall have a right to attend at all stages of a children's hearing who are considering the case of his child.

(13) When the case of a child or young person is being considered by a children's hearing, his parent shall attend at all stages of the hearing unless the children's hearing are satisfied that it would be unreasonable to require his attendance.

(14) At the commencement of a children's hearing, and before proceeding to the consideration of the case, it shall be the duty of the chairman to explain to the child or young person and his parent the grounds stated by the prosecuting officer for the referral of the case for the purpose of ascertaining whether these grounds are accepted by the child or young person and his parent.

(15) Thereafter—

1. (a) where the child or young person and his parent accept the grounds stated by the prosecuting officer for the referral the hearing shall proceed; and
2. (b) in any other case, unless they decide to discharge the referral, the children's hearing shall direct the prosecuting officer to make application to a magistrates' court for a finding as to whether such grounds for the referral as are not accepted by the child or young person or his parent are established.

(16) When a children's hearing have considered the grounds for the referral of a case, accepted or established under subsection (15) above, the report obtained under subsection (11) above and such other relevant information as may be available to them, they shall proceed to consider on what course they should decide in the best interests of the child.

(17) Where a children's hearing decide that no further action is required they shall discharge the referral.

(18) Where, after the consideration of his case, a children's hearing decide that a child or young person is in need of compulsory measures of care, they may make a requirement, hereinafter referred to as a supervision requirement, requiring him—

1. (a) to submit to supervision in accordance with such conditions as they may impose; or
2. (b) to reside in a residential establishment and be subject to such conditions as they may impose.

(19) A supervision requirement shall be in such form as the Secretary of State may prescribe.")

The noble Baroness said: My Lords, on 3rd November I spoke at length on the amendment, which concerns the juvenile court system in England and Wales as compared with the children hearing system in Scotland. I will not rehearse all the arguments that I put forward in Committee.

I wish to ask my noble friend the Minister several questions. He said in Committee: While the Government's consideration of the family court idea is still continuing, my noble friend will not expect me to give completely definitive answers to the questions. He added that, the Committee can rest assured that my noble and learned friend will read the debate with interest as it will add to their considerations of the idea of a family court".—[Official Report, 3/11/87; col. 903.] Should Her Majesty's Government decide not to introduce a family court into England and Wales or to defer such an introduction, what will become of the amendment? Will no further consideration be given to it?

My noble friend said that inadvertently I had insinuated that the juvenile magistrates dealt with cases insensitively and unduly harshly. With respect to my noble friend, at no time did I insinuate that. It is not the quality of service given by the magistrates that is in question; the point of deepest concern is the system by which cases come before the juvenile court.

I have attended children's hearings in Scotland and know that the role of the reporter is impressive. The strength of the reporter is that he is objective, being outside the social services and probation, police, health and education services. One cannot and should not judge the Cleveland situation until the report is published. However, judging from the press reports, there were differences of opinion between the professionals involved. Under the amendment it is recommended that the reporter's role might be taken on by the prosecution service by way of an objective person sifting through the cases.

The Scottish system of a hearing involves the parents, the child, education and health professionals and those close to the child. Much is said about the lack of parental responsibility. In Scotland parents are involved in the process of decision concerning the placement and future of the child in a way that the juvenile justice system in England and Wales does not allow. I suggest that one of the most effective ways of reducing juvenile crime is to inculcate parental responsibility. In the Scottish system this is done by involvement.

I plead with the Minister seriously to consider the amendment. Week in week out, we hear of overcrowded prisons and of young people who have left home and are in trouble. Would it not go some way to solving the problem of an overloaded penal system if there were a system of juvenile justice that involved the parents and encouraged them in their responsibilities?

Baroness Elliot of Harwood

My Lords, this is the third occasion on which we have brought forward such an amendment for your Lordships' consideration. I have studied the two earlier debates with much interest. I cannot add much to the case made by my noble friend Lady Faithfull.

This system has been working for 10 years. It is extremely successful. It was started as an experiment to see whether it would work. As my noble friend has said, it involves parents and children and those in education. Everyone who has any connection with a child is, or can be, consulted. The reporter is a trained person who has had considerable experience.

I know that many people have different theories. I have never had dealings with the English courts; so I do not know exactly where the faults lie. Listening to the debates I have a feeling that this method would do for England what it has done for Scotland: it would provide an easier, better and more helpful way of dealing with children who get into trouble, and it would assist the parents.

I cannot understand why the English courts are not prepared to experiment with the system, if nothing else. If provision were made in the Bill, this could be done. My own experience is quite long, and I have had connections with the system since it started. I assure your Lordships that it is a highly successful way of dealing with the problem of delinquent children. I recommend it strongly. If the Home Office does not believe me, I hope that its officers will speak to the people who are involved in this in Scotland. If they speak to reporters and to those who are carrying it out, they will receive the information that they want. I am sure that England would benefit a great deal from what we in Scotland have done for 10 years.

Lord Simon of Glaisdale

My Lords, when a similar amendment was put forward in Committee I said that I should prefer to see the problem identified and the solution advanced within the ambit of a system of family courts. I was much encouraged by the noble Earl's reply that consideration of setting up a system of family courts is proceeding.

Since I first put forward a system of family courts, I have had occasion to modify my thinking in two ways. I hope that the noble Earl will forgive me if I outline what I mean. First, at every level of the family court there should be a welfare side and a judicial side. Only problems that could not be solved on the welfare side should go to adjudication. There is a model for that in the French Council of State. I should like to see the family courts dealing with minor—I emphasise minor—delinquency by young persons.

I was very much impressed by a Home Office circular which, when it came out, suggested a system of family councils. Has the noble Earl yet run that circular to earth in its pigeon-hole in the Home Office? Has he yet dusted it down so that it is legible? I should very much like to see a family council dealing with minor delinquency as the lowest level of family court. Although I certainly would not oppose the amendment, I ask that the problem should be considered in the thinking that is obviously now going on about family courts.

The Earl of Caithness

My Lords, my noble friend Lady Elliot of Harwood was a little surprised that the Home Office had not taken on the Scottish system and wondered why this was not so. As I said in Committee, the reason is that there is an historical difference between the way things have been done in Scotland and in England and Wales. Indeed, the Scots did not have a systematic juvenile system before 1971, so it could equally well be asked why the Scots did not follow the English development of a system of juvenile courts pre-1971.

To a very large extent the reason is historic, and there are the developments that have taken place. Among recent developments in the English system have been the growth in cautioning, the improved arrangements for liaison among the police, the social services, the probation services and the educational welfare services and the willingness of some juvenile Benches, which I welcomed at Committee stage, to experiment with the existing procedures to make a court appearance, when it occurs, a less daunting experience for the child. The two systems appear to be looking much more at the experience of the child and what the child will suffer, but approaching it from different points of view.

My noble friend Lady Faithfull slightly misled your Lordships into believing that to accept her amendment would reduce our overcrowded prisons. The experience to date is that this is not the sector of prison population that is over-crowded. As I said at Committee stage, the number of custodial sentences for juveniles has fallen from 7,000 in 1981 to 4,500 in 1986; that is, the lowest for 10 years. The alternative to custody that the Government have proposed, plus the improvements in the arrangements, have gone a long way to tackling the problem of juveniles. It is not juveniles who are overcrowding our prisons but a different sector of the community. I cannot foresee what the discussions on the family court idea will result in or what decisions my noble and learned friend will reach on this matter, so what becomes of my noble friend's amendment in due course is very much a hypothetical question which I cannot answer.

However, I can say to the noble and learned Lord, Lord Simon of Glaisdale, in answer to his observations on the shape of the family court, that I can do no better than draw these to the attention of my noble and learned friend. I am grateful that the noble and learned Lord has put them forward today so that they can be taken into account.

I do not want to recap on what I said in Committee. It would be wrong for me to do so at this stage. We watch the Scottish system with great care, and we shall not cease to make improvements to our system for juveniles and the juvenile system of justice should any improvements commend themselves to US.

6.45 p.m.

Baroness Faithfull

My Lords, I thank my noble friend the Minister for that reply. I make just two points. First, although there are some improvements in some juvenile courts in this country, the improvements in the way juvenile justice is administered is uneven through the country. That is not to say that the magistrates are not doing their work well, but the problem is the way that the courts are run. To my certain knowledge, the courts do not and cannot in many cases involve the parents in the way that is done in Scotland.

My second point is that when I spoke about overcrowded prisons I did not mean for one moment that juveniles would bring down the prison population now. But I believe that if we had a different juvenile justice system there would over many years be a change of opinion, a change of atmosphere, and parents and families would inculcate a sense of responsibility which perhaps in some areas is not prevalent at the moment.

I shall obviously not pursue the amendment at this stage. I am grateful to my noble friend the Minister for taking note of what has been said. I hope that this is not lost in the future. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 10 [Administration of the probation service etc.]:

The Earl of Caithness moved Amendment No. 117: Page 138, line 6, leave out paragraph 2.

The noble Earl said: My Lords, my noble friend has sent me a message that he regrets being unable to be in your Lordships' House this evening. The amendments he wanted to move, Amendments Nos. 117 and the consequential amendments, Nos. 118 and 145, are consequential on the substantive provision that was agreed in Committee. I should have accepted these, naturally enough, and perhaps I may be allowed to move them on my noble friend's behalf.

Lord Harris of Greenwich

My Lords, I should like to make a point on this. The noble Earl is quite right. The amendment was moved by his noble friend, and very much to the surprise of a number of us the Government accepted it. It obviously has substantial implications for the inner London probation service and the City of London probation service. Since our last debate I have been approached in my capacity as president of the senior probation officers to ask for a clearer statement of the Government's intention on this matter. I shall not press the noble Earl tonight, but I should be grateful if he would send me a letter setting out in rather greater detail than he was able to undertake in Committee the real reasons for the Government's change of position on this matter.

The Earl of Caithness

My Lords, I shall be happy to write to the noble Lord.

On Question, amendment agreed to.

The Earl of Caithness move Amendment No. 118: Page 139, line 21, leave out paragraph 8.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, before calling the next amendment, I have to inform the House that if Amendment No. 119 is agreed to I cannot call Amendment No. 120.

Clause 120 [Offence of having article with blade or point in public place]:

The Earl of Caithness moved Amendment No. 119:

page 89, leave out lines 3 to 9 and insert— ("(1) Subject to subsection (1C) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence. (1A) Subject to subsection (1B) below, this section applies to any article which has a blade or is sharply pointed except a pocketknife. (1B) This section applies to a pocketknife if—

1. (a) it has a blade which is longer than 3 inches; or
2. (b) it has a blade which, when the knife is open, locks automatically or can be locked manually.

(1C) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place and, without prejudice to the generality of this subsection, to prove that he had it with him in that place—").

The noble Earl said: My Lords, in moving Amendment No. 119, I am seeking to fulfil the undertaking which I gave in Committee to re-examine the drafting of the new offence of carrying a bladed or sharply-pointed article in public without good reason. I was grateful to the Committee for accepting the amendment at that stage, despite some reservations about the form of words used in relation to the offence.

I believe that this amendment now makes the position absolutely plain. On my reading, the pocket-knife exception is clear, and for fear of confusing the issue I shall say no more about it. I also believe that there is now no doubt that the burden of proof lies on the accused in the general defence of showing good reason for possession of a bladed or sharply-pointed article in public, as well as in the more specific defences. This is a purely drafting amendment, fashioned in the interests of clarity. I beg to move.

Lord Denning

My Lords, in Committee I raised the question of burden of proof. It was not dealt with, and for that reason I put down Amendment No. 120. However, I am quite content with the amendment now moved by the noble Earl, which puts the burden of proof quite clearly on the defence. I accept the amendment and will not move my own.

Lord Simon of Glaisdale

My Lords, in Committee I expressed the view that the clause as drafted was absolutely correct. It was clear that the offence of carrying a flick-knife in a public place was established by the drafting. I expatiated on that in a letter to the noble Earl, analysing further the drafting and adhering to that view. I added that if the draftsman could recast the clause in a more affirmative form (although I did not think it was necessary) he would please the noble Earl, Lord De La Warr, and the noble Lord, Lord Mishcon; and that he has done. I slightly prefer the original draft, but it would be churlish and curmudgeonly of me if those two noble Lords are pleased, although they are not present to pursue any stylistic argument.

As regards subsection (1C), I thought the draftsman had a formidable argument in favour of his original draft, though as I wrote to the noble Earl I thought that there might be argument against it. As it is, he has redrafted it most felicitously in a way that leaves no doubt that the burden of proof of the matters set out there is on the defendant. Normally one expects the burden of proof to lie on the prosecution, but in the case of "good reason" or "lawful authority" it seems an impossible burden to put on the prosecution. Therefore in substance as well as in drafting I heartily welcome the noble Earl's amendment, and in so far as I expressed doubt about the burden of proof I can only express my gratitude.

Lord Silkin of Dulwich

My Lords, perhaps I may also express to the Minister the gratitude of the Opposition for having taken on board the many criticisms that were made of the original drafting and for coming forward with what I am sure is a very much clearer version than the original one. Having said that, I hope that I will not be accused of being curmudgeonly if I draw attention to one phrase and ask the Minister to explain it. Subsection (1B)(b) applies to a pocket-knife if: it has a blade which, when the knife is open, locks automatically or can be locked manually". I think I can recognise an open blade, although I am not sure that I can recognise an open knife. I wonder whether the Minister can explain that one.

Lord Molloy

My Lords, ordinary people do not understand immediately the complicated jargon, if I may use that word, of lawyers' expressions which appears in Bills from time to time. An ordinary member of the British public would find it very difficult to explain exactly what an Act of Parliament means. We had an interesting debate on this subject some time ago in which the noble and learned Lord, Lord Denning, said that it was about time that we started to use the English language in the normal way it is used so that British people can understand it.

Am I right in thinking that the amendment means that anyone who deliberately takes with him a knife which will not close can have only one purpose in mind; that is, to do some possible damage? Am I correct in believing that unless he can prove otherwise he is guilty of an offence? Is that what this really means? Innocent people are stabbed, have knives stuck in them, on Underground trains and on buses all over the country. The problem is growing. So long as the person who sets out to threaten, to stab or to hurt someone or to steal a handbag or purse does not use the knife he is not committing an offence simply because no opportunity presented itself to do just that.

Henceforth, under this measure, if anyone walks around with a blade as described both in the original Bill and in the amendment he will be committing an offence and if he cannot prove otherwise he will be guilty. Is that how this will read and be understood by the ordinary people of this country?

Lord Broxbourne

My Lords, we have been told that if the amendment is carried the amendment standing in the name of the noble Lord, Lord Paget, cannot be called. Is that incorrect? I hope that it is.

The Earl of Caithness

My Lords, perhaps I may correct my noble friend. It is Amendment No. 120, in the name of the noble and learned Lord, Lord Denning, which cannot be called.

Lord Denning

My Lords, that is correct. I am quite satisfied with the burden of proof as it is. Perhaps I may say to my noble friend Lord Molloy that he is quite right. One comes across a man in a public place who has a knife with a blade or one of these flick-knives. "What are you doing?", the policeman asks. Unless he can show he has a lawful excuse he is guilty of an offence. That is the ordinary English language.

Lord Broxbourne

My Lords, I am in the happy position in which Metellus Cimber hoped to be: Is there no voice more worthy than my own, To sound more sweetly in great Caesar's ear". I shall refrain from any more observations until the noble Lord, Lord Paget, has moved his amendment with his customary clarity and cogency.

Lord Paget of Northampton

My Lords, I am blushing. This is far and away the most important clause of the Bill. The Bill on the whole is a tidying-up Bill. It tightens up procedure. This matter goes to the roots of a very fundamental right of the Englishman—the right to defend himself. When I raised the matter in Committee the Minister took the view, as expressed at col. 93 of the Official Report of 2nd November, that I was a radical trying to upset the traditions of the English law. I have much enjoyed the way in which—

Lord Simon of Glaisdale

My Lords, I wonder if I may interrupt the noble Lord, Lord Paget. Is he not now speaking to Amendment No. 121, to which we shall come in a moment? That will be called whatever we do with Amendment No. 119.

The Earl of Caithness

My Lords, perhaps I may briefly reply on this amendment. I am grateful to the three noble and learned Lords for their support. The answer to the noble Lord, Lord Molloy, is, broadly speaking, yes. However, I do not have the qualifications of the noble and learned Lord, Lord Denning, to be able to answer as the noble and learned Lord can.

The noble and learned Lord, Lord Silkin, asked about the exact terminology about when the knife is open. We believe it to be clear because it has to be that' when the blade is taken out of the sheath it will be open. But may I look at that again between now and another stage so that I may be absolutely clear?

The Deputy Speaker

The Question is that Amendment No. 119 be agreed to? Does the noble Lord want to say something?

Lord Paget of Northampton

My Lords, I think that the amendment that I was about to move is an amendment which is quite inconsistent with Amendment 119. It is in fact an amendment of Amendment 119.

The Deputy Speaker

My Lords, at the moment we are on Amendment 119. Will the noble Lord sit down? I shall call Amendment 121 in due course, to which he has given his name.

On Question, amendment agreed to.

[Amendment No. 120 not moved.]

7 p.m.

Lord Paget of Northampton moved Amendment No. 121:

Page 89, leave out lines 11 and 12 and insert— ("(b) to enable him to perform a public duty; or (c) for his own defence or for the defence of his property or the property of others with which he has been entrusted.").

The noble Lord said: My Lords, I am most grateful. It is a little complicated. I was for a moment trying to defend myself from the allegations that I was a radical trying to upset the law. I am in fact a conservative character seeking to uphold the principles of English law as they have been understood from time immemorial.

I am not impressed by talk of natural rights. I do not believe that they exist. The rights that we enjoy are derived from the society into which we are born and to which we owe concomitant obligations. In other words, I am concerned for the rights of Englishmen. These include, and always have included, the right of self-defence. Indeed it is the right of self-defence that the Americans took from us and put into their constitution. As is their habit, sometimes they exaggerated a bit in taking it, but it is the fundamental idea of the right of self-defence both here and taken to America. That right includes the right to arm oneself against dangers which one may reasonably anticipate. That is the law, and I do not want to see it altered.

The most recent case, and one from which I wish to quote, is the Lord Chief Justice's judgment in what is generally known as the petrol bomb case. There is a law against making petrol bombs or other explosive instruments unless made for a lawful object—the same words we are considering here. In this case the accused had his shop wrecked by a crowd. He had feared that the same thing would happen again—it was in a difficult area—and made six petrol bombs to defend his shop against a mob which might attack it.

When somebody found the bombs, he was prosecuted. I am bound to say that I would find it a little hard to feel that petrol bombs as an anti-personnel weapon were reasonable, or indeed that one is really entitled to defend one's shop by setting fire to a district. Nonetheless the Lord Chief Justice found that the accused was entitled to since the object for which he made these bombs was a lawful one to defend his property.

In the course of that judgment he referred to the case of R v Fegan. There the defendant was a Roman Catholic married to a Protestant. On that account he had been subject to threats and beatings. He described how he bought the gun for his own protection and if need be for the protection of his house and family. He was charged and convicted under Section 4 of the 1883 Act—that is, the firearms Act—for having a gun without reasonable excuse. He was acquitted, and the Lord Chief Justice here says that he was quite rightly acquitted. The court found that the appellant genuinely and reasonably feared for the life and safety of himself and family and held the pistol for use if necessary as a protection against danger. There was the right to arm yourself for defence.

I turn to the judgment and the question that the defence has to be a spontaneous reaction; and the Lord Chief Justice said: There was no question of a person in danger of attack 'writing his own immunity' for violent future acts of his. He was not confined for his remedy to calling in the police or boarding up his premises. He might still arm himself for his" own protection, if the exigency arose, although in doing so he might commit other offences". Then finally this is the reply to the question put by the Attorney-General and the formal finding: The defence of lawful object is available to a defendant against whom a charge under section 4 of the 1883 Act has been preferred, if he can satisfy the jury on balance of probabilities that his object was to protect himself or his family or his property against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers". I think that establishes my proposition that the right of self-defence and the right to arm yourself for your defence despite the firearms Act, despite the Explosives Act, despite this Bill, is an Englishman's right which must be preserved and I believe guarded.

The case which brought this to the fore was the case of Mr. Butler, with which most people here will probably be familiar. He was a man of the highest character, aged about 50, a little lame and walked with a stick. He had been a collector for the Royal Lifeboat Society and I think was made the head of that division. His job involved collecting boxes, which he needed to carry by Tube. He regarded it as his duty and right to defend himself and indeed to defend the money that he was collecting. He did not feel that he did his job properly if he did not defend himself against the obvious and well-known dangers of the Tube and the muggers. He therefore got himself a sword-stick.

The anticipated event happened after about a year. He was attacked in the Tube by a mugger who got hold of the boxes that he was carrying, got him by the throat, shoved him up against the door and was banging his head against the wall. With great skill, which I can only admire, he succeeded in drawing his sword and putting it through his assailant. Certainly I think most of us felt that he deserved no more than the heartiest congratulations, but he found himself taken to the police station and having difficulty to get bail. After that he was in court. He was fined £200 and given a suspended sentence of two months' imprisonment. This gave him a criminal record.

I have never met anything, frankly, which outraged me more than that judgment or which appeared to outrage other people. I wrote and said, "Can we not do something to help this chap?" I stated the limit required to reimburse him, which was in fact to reverse the judge's finding by a practical method. The public produced more than twice that. I was very heavily employed for weeks in returning money over what we had asked for with polite letters.

I would have thought that a swordstick was a defensive weapon, if you are going to misuse words. But I do not think any inanimate object is capable of being either offensive or defensive. It depends on the chap who is holding it. It is at the man and not the tool that you have to look.

The trouble with the Butler case was that it not only made a lot of people very indignant but also made the law ridiculous. It made the law ridiculous not only here, but it very much satisfied European publications, in which it was on the front page from Spain to Germany, of the idiocy of the English. Our people took it up too. There was a charming Giles cartoon of Grandma Giles wielding her handbag. Anybody here acquainted with the Giles family will have no doubt that Grandma's handbag was an offensive weapon. It was smashing down on a thug, who was saying, "'Ere, don't 'it me. You'll get two years for that. I only pinched your pension".

This is the kind of comment which this idiotic treatment of the law gets from the people. It is very bad from the point of view of respect for law. Of the 700 leters which I received in this case, not one had a good word for what had happened. This is bad for the law.

As to the social consequences, I am not a pacifist. I do not think appeasement works, and I do not think it works to appease muggers. Crimes of that sort can be committed in a full tube train—and on this occasion nobody went to Butler's assistance—and in many other places. One cannot just let muggers get away with it. The Greeks described decadence as not being on your own side. That is a state of affairs which is rather alarming here. We seem to be on the side of the mugger and not of the people who try to defend themselves.

There was another case just the other day. A man was continually having his farm, which he had bought but not moved into, damaged and his slates stolen. He asked the police to protect it, I think, on four occasions and nothing happened. So he took his gun, went there and waited. When the chap was on the roof taking the slates off, he let him have it in the legs; it was only bird shot. I was horrified to find him sentenced to two years and four months. Whose side are we on in this progressively lawless society?

I just want to turn to the amendment and see what it does. First, I would cut out subsection (2)(b), "for religious reasons". What are the religious reasons which require a man to carry a knife in public? Is one circumcision? I do not know, but I should have thought any purpose that I can think of would be covered by the phrase, "for use at work".

What is meant by, "as part of any national costume"? Is it the dirk? The dirk is the most splendid fighting weapon that any knife bearer has worn. A dirk is here at the stocking, by the hand, ready to go in. Are we really going to give specially selected gangs, selected on national lines, this winning armament against the other gangs?

I said last time I spoke that these knives were used for gang warfare much more than for the mugging occupation. I wrote to the noble Earl about it and asked: "In these cases in which you say such weapons were used, on how many occasions was the attacked old lady or whoever it was cut?". He was not able to produce to me a single instance which anybody had actually been cut. They had been threatened but no more. These are the fighting weapons of the gangs. They are used in fighting for territory and that sort of thing. Are we going to give these Scottish gangs a special armaments monopoly? The only fighting knife to match the dirk is the kukri. Is the kukri a national symbol that can be worn too? We are going into the depths of absurdity on this one.

The other point that I also wish to take up is subsection (4): In this section 'public place' includes any highway and any other premises or place to which at the material time the public have or are permitted access, whether on payment or otherwise". Does that include a church? I do not know. If we cannot get a better definition than that, it is far better not to have one and to allow people to use their common sense as to what a public place is.

If the police close a road to traffic, does it cease to be a public place for knife-bearing purposes? Does it or does it not? You would never find out from that wording. How long does it have to be a public place? Can it be like an intermittent disease—it is occasionally public and occasionally unpublic and, therefore, you can take a knife on Friday but not on Saturday? The provision needs a little more thought than it has had. I beg to move.

7.15 p.m.

Lord Denning

My Lords, may I say a word on this? I can well understand the anxiety of my noble friend Lord Paget to say that if a man has a knife with him for self-defence then he is not guilty of any offence. I quite agree with that. He wants to put it in express terms, but it is really covered by the existing terms. The man has to prove that he had good reason or lawful authority. Surely the best of reasons—the "good reason"—is that he had it with him for the purpose of self-defence or with lawful authority, as the case may be. Therefore, the case of self-defence is already provided for by the section; that if he has it for self-defence or with any lawful authority it comes within "good reason".

The noble Lord is anxious about the case of Mr. Butler, who went on an Underground railway and had with him a swordstick. It looked like an ordinary stick but he could draw out a sword from it. When a mugger came along he managed to run him through with it. Many people might think that that was a good thing to do. However, there is no doubt that the court found him guilty, fined him £200 and gave him a suspended sentence of two years' imprisonment.

I should not like to criticise the judgment and I do not know whether it is under appeal. I believe that if the accused could persuade judge or jury that he had the stick for the purpose of self-defence only, it would in the ordinary way be a good defence. I do not know all the circumstances and I should like to know the reasons and whether there is an appeal. In any event, if a person has good reason for having a knife or sword with him in a public place it is a defence under the terms as set out.

Lord Simon of Glaisdale

My Lords, I hope that the noble Earl will give consideration to paragraph (b) of the amendment, because there are a number of people (for example, a high sheriff) who must carry a sword as part of their public duty. I imagine that the same consideration will apply in the case of a bayonet carried by a guardsman on parade.

Different considerations apply as regards paragraph (c) of the amendment. With an education Bill looming, your Lordships may remember Lord Melbourne's observation to Queen Victoria: I cannot think why there is all this fuss about education. None of the Pagets can read or write, and they get on very well". I happen to know that the noble Lord, Lord Paget of Northampton, can both read and write because as young men we used to practise on the same circuit. However, what passes my understanding is why, at the advanced age at which we have both arrived, he should wish to carry swords and swordsticks in public places. As my noble and learned friend Lord Denning said, if there is a genuine reason for self-defence the matter is already covered. However, it would be lamentable if we went back. The noble Lord, Lord Paget, described himself as a conservative. In fact he is in the true sense a reactionary. He wants to return to the days when every gentleman carried a sword and was prepared to use it. I hope that the Minister will not countenance any such thing.

Lord Broxbourne

My Lords, the noble Lord, Lord Paget, has moved his amendment with the clarity and cogency which I ventured to invite the House to look forward to with confidence. He does not seem to have carried the complete conviction of the two noble and learned Lords on the Cross-Benches. However, as your Lordships know, the law is not an exact science and even Law Lords differ in their interpretation of the law.

I support the amendment of the noble Lord. In the language of the courts, which he used to adorn and in which I used to practise. I adopt the majority of his arguments. That has the uncovenanted benefit for your Lordships that I can be brief.

We start from the common position that, although there are important differences in the language of the two amendments (the Government's amendment and that of the noble Lord), there is a common acceptance that the important factor is not the nature of the knife but the use, or the intended use, to be made of it. The Bill recognises that by prescribing the test in Clause 120: good reason or lawful authority". The Bill falls short, and the noble Lord's amendment is an improvement, in that it fails adequately to define those terms. In particular it fails to make clear beyond peradventure that self-defence constitutes "good reason". Indeed, it is arguable, in spite of what was said by the noble and learned Lord, Lord Denning, whom I respect so much, that by implication on the Minister's wording self-defence would be excluded.

There are three specific instances in Clause 120. It is quite true, as the noble and learned Lord will be quick to point out, that this is qualified by the phrase, "without prejudice to the generality". Nevertheless, there would be those who would argue. I can imagine the noble and learned Lords, Lord Denning and Lord Simon of Glaisdale, putting forward the most attractive arguments that by implication self-defence is necessarily excluded in these words. They would pray in aid the principle that to specify the one is to exclude the rest.

I think that we are entitled to ask: why specify national costume and omit self-defence if it is intended that self-defence constitutes "good reason"? Would it not have been better to use the phrase "lawful object", as in the Explosive Substances Act to which the noble Lord, Lord Paget, referred? That phrase has the benefit of judicial consideration and interpretation in the Court of Appeal, where, as the noble Lord has reminded us, they adopted the conclusion of R v. Fegan. I am not sure which of us has the correct Irish pronunciation of the name and it may be that we are referring to the same case. It stated: possession of a firearm for the purpose of protecting the possessor from acts of violence may be possession for a lawful object". The Court of Appeal then defined the position in law: The defence of lawful object is available to a defendant if he can satisfy the jury on balance of probabilities that his object was to protect himself or his family or property against imminent apprehended attack by means no more than reasonably necessary to meet the force used by the attackers". A fortiori one would think if that applies to anticipated or apprenhended attack, surely it must apply to the kind of attack which Mr. Eric Butler suffered in the Underground train, as so graphically described by the noble Lord.

I support the amendment of the noble Lord which gives statutory force to the ruling of the Court of Appeal in that case and which therefore should be incorporated in the Bill. An added advantage—one which non-lawyers at any rate may think is not its invariable characteristic—is that the law will then be in accord with the commonsense of the people.

7.30 p.m.

Lord Harris of Greenwich

My Lords, I should like to say a few words about the amendment. I assume that the noble Earl will be recommending the House not to accept it, and if so he will certainly have our support. I am bound to say that I am very worried about paragraph (c) of the amendment and the words "for his own defence". As chairman of the Parole Board I must have seen scores, possibly hundreds, of cases of unlawful wounding and grievous bodily harm by young men who had been convicted and sentenced to very substantial periods of imprisonment. These were cases in which the Parole Board had to decide whether to recommend to the Secretary of State that the men should be released.

One reviewed the papers and examined what was said at the trial. In 70 per cent. to 80 per cent. of cases in this category, many of them offences committed in public houses, it was said on behalf of offenders that the knife had been carried for their own defence. In my view, to include an amendment of this kind is highly undesirable. For that reason alone I oppose it.

Secondly, I was surprised to hear the noble Lord, Lord Paget, say that we could learn from the American experience. I should have thought that American experience would make us realise the risks involved in any suggestion that people carry deadly weapons for their own defence. As a result of that implied provision in the American constitution and the very liberal firearms laws that exist in many states, in many years more American policemen are killed than there are people murdered in this country. The justification for the kind of firearms policy pursued in so many American states is that it gives people the right to bear arms "for their own defence".

For those two reasons, I find that the case for the amendment has not been made out. I very much hope that the noble Earl will recommend the House to reject it.

Lord Paget of Northampton

My Lords, I just wanted to say something more about my amendment—

The Earl of Caithness

My Lords, we are at Report stage. The noble Lord introduced his amendment for 20 minutes and he can speak at the end or with the leave of the House. However, I think it is right that I should answer the arguments that have been put forward.

As the noble Lord said, this amendment would remove the specific defences in Clause 120(2) for those who carry knives and similar articles for religious reasons or as part of a national costume. It would replace them with new defences for those who carried such articles to perform a public duty or for the purposes of self-defence, including the defence of property. The Government do not believe that this amendment is acceptable for reasons that I shall explain.

The primary defence under this clause for anyone who carries a bladed or sharply pointed article in a public place is to show that he has a good reason. What should constitute such reason in any particular case will ultimately be a matter for the courts to decide in the individual circumstances. But, in drafting this clause, we considered it right that in addition to a specific defence for those who carried these articles for their work, we should also safeguard the position of those groups for whom the carrying of a knife is important either for religious reasons or for forming part of a national costume.

Times have changed since the days, not very long ago, of the noble and learned Lord, Lord Elwyn-Jones, and Lord Morris of Borth-y-Gest. The four government Front Bench spokesmen all have a great deal of Scottish blood in their veins, as indeed do two of the leading Front Bench spokesmen for the Opposition. I am sure that we all feel that it is right for the provision as regards national costume to remain in the Bill. As the clause stands, those defences will be available when the articles are genuinely carried for those purposes. That accords with this country's traditional respect for religious freedom and national costumes. We believe that it is important that those defences should be retained.

The noble Lord, Lord Paget of Northampton, referred to a dirk or what, by his action, might be a skean dhu which would be a special exemption if it were worn purely as an item of national dress. However, if it were carried with intent to cause injury, it would be caught by the existing offensive weapons provisions in the Prevention of Crime Act 1953. The noble and learned Lord, Lord Simon of Glaisdale, put the case for me to consider paragraph (b) of the amendment, and he particularly mentioned the case of the high sheriff. I should have thought that the case of the high sheriff was well covered in the Bill as having good reason or lawful authority to carry a sword.

The noble Lord's amendment seeks to introduce a new defence for a person who carries a knife or similar article to enable him to perform a public duty. But as drafted it is not at all clear what activities this part of the amendment is seeking to protect and what would constitute a public duty. It would import an area of uncertainty into the legislation which could be exploited by those seeking to circumvent the law. There is already a general defence of good reason or lawful authority for those who have a legitimate reason for carrying a knife as well as the specific defence for those who carry one in the course of their work. The Government do not believe that the public duty defence is either a necessary or desirable addition to this clause.

I turn now to the noble Lord's inclusion in his amendment of a specific defence for those who carry such articles in their own defence or in the defence of their own or other people's property. It is an issue that the noble Lord raised in Committee. I am afraid that I have to say that such a defence would not only be contrary to the spirit and purpose of this clause but would also be at odds with the existing law. Under the Prevention of Crime Act 1953, it is an offence to have an offensive weapon in a public place without lawful authority or reasonable excuse. An offensive weapon is defined as any article which is made to cause injury or carried with that intention. The law does not therefore allow for the routine carrying of weapons. The courts have held that in no other than the most extreme circumstances would a person be entitled to carry a weapon for self-defence on the chance of being attacked. This has been the position for over thirty years.

We undertook a review of the law on offensive weapons because we were disturbed by the alarming increase in the carrying of knives on our streets. The result of that review was the new offence on possession which your Lordships accepted in Committee and which will significantly strengthen the law in relation to the carrying of knives. If we were now to weaken the law by making it possible, for the first time, for people to carry weapons in self-defence it would provide muggers and hooligans with an easy excuse to escape prosecution and conviction. It would also lead to a proliferation of knives on the streets and make them even more dangerous. We simply cannot have people going about with weapons with which they are prepared to inflict injury.

That is exactly what the gangs want. They will be grateful to the noble Lord, Lord Paget, and to my noble friend for permitting them to do exactly what they want to do. If one examines the statistics in relation to London, one sees that between 1985 and 1986 street robberies involving sharp instruments increased by 29 per cent. So one can imagine the extent to which those statistics would soar. It really surprises me that my noble friend with all his experience would wish to take us into pretty desperate days.

Experience shows that where such weapons are carried they are likely to be used. If this amendment were accepted it would undermine the whole purpose of the clause which is to restrict the carrying of weapons and make the streets safer. Therefore I very much hope that in the light of what I have said the noble Lord will not feel it necessary to press his amendment.

Lord Paget of Northampton

My Lords, this is a very remarkable situation indeed. The Government have apparently succeeded in completely deceiving the two noble and learned Lords—judges—who have spoken. Both thought my amendment made no practical difference, that what I wanted was an assurance that self-defence was a legitimate defence and that it was already in the Bill. Both the noble and learned Lords, Lord Denning and Lord Simon, were convinced that that was a just and proper reason for carrying the article and that it was unnecessary to go to the length of explaining it. Having completely deceived the House and the learned judges in the House, the Government asked me to accept the position. I think I was a little wiser in seeing the dangers of the Government's suggestion.

The noble and learned Lord, Lord Denning, said that, if the jury had thought that Mr. Butler's swordstick was solely for his defence, he had no doubt that they would have acquitted and that they would have been instructed to acquit. Actually it was admitted and agreed on both sides that the sole reason why Mr. Butler had a swordstick, and the sole reason why he used it, was to defend himself and the savings boxes that he had. That was agreed. The judge in his summing-up said that that was no defence and that requiring it for his own defence was not a lawful purpose under the Act. If he interpreted the Act in the same way as the noble Earl has just interpreted it, they would have been in complete agreement.

I am certainly very disinclined to withdraw my amendment. I think that this is one of the most strikingly odd cases that I have encountered for a long time. The Government support it by the most expert opinion, upon the basis that that expert opinion has totally misunderstood both what the Government intended to do and what they think they have done. Surely this requires a lot more consideration.

On Question, amendment negatived.

The Earl of Arran

My Lords, perhaps this might be a convenient moment for your Lordships' House to adjourn for dinner. I beg to move that the House do now adjourn during pleasure until 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.43 to 8.45 p.m.]

Baroness Macleod of Borve had given notice of her intention to move Amendment No. 122: Page 89, line 15, at end insert ("and the offensive weapon shall be confiscated").

The noble Baroness said: My Lords, the Minister very effectively dealt with my amendment by moving Amendment No. 57 to Clause 62. That covers the point that I wanted to make. Therefore I shall not move the amendment.

[Amendment No. 122 not moved.]

[Amendments Nos. 123 and 124 not moved.]

The Earl of Caithness moved Amendment No. 124A: Page 90, line 17, at end insert ("(including, in Scotland, the sheriff)").

The noble Earl said: My Lords, I beg to move Amendment No. 124A and to speak to Amendments Nos. 148 and 148A. The purpose of these amendments is to extend the provisions of Clauses 122 and 123 of the Bill to Scotland. As your Lordships are aware, Clause 122 provides the Secretary of State with the power to make an order applying to offensive weapons specified in the order the prohibitions on manufacture, sale and hire contained in the clause. The prohibition will extend to the giving and lending of such weapons and their importation will be prohibited. Clause 123 provides the police with powers of search and confiscation of such weapons by providing that a justice of the peace may issue a warrant to a police officer to enter and search premises if he is satisfied that there are reasonable grounds for believing that prohibited articles are to be found there and that one of the conditions specified in subsection (3) is satisfied. A constable may seize and retain anything for which the search is authorised. I beg to move.

Lord Morton of Shuna

My Lords, as Amendment No. 148 is included in this group, I should speak to it as well. The reason it is there is because the Government appear to have forgotten that it might be inappropriate not to prohibit the sale of offensive weapons in Scotland where such weapons are prohibited in England. That is the purpose of Amendment No. 148.

Once they are prohibited, it is of course appropriate that in Scotland the sheriff should be included in the amendment to which the noble Earl has spoken. On the assumption that Amendment No. 148 is acceptable to the Government, which I hope it is, I should have no objection to Amendment No. 124A.

The Earl of Caithness

My Lords, with respect, I think that perhaps Amendment No. 148 is not quite as good as Amendment No. 148A, which I think covers the point more precisely, as it includes Section 123, which the noble Lord omits. Perhaps that section also should apply to Scotland. I believe that it should.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 125:

Page 90, line 22, at end insert— ("(aa) that an offence under section 1 of the Restriction of Offensive Weapons Act 1959 or section 122 above has been or is being committed in relation to them; and").

The noble Earl said: My Lords, I beg to move Amendment No. 125. The purpose of this amendment is to make clear that before a justice of the peace may issue a warrant under Clause 123 he must be satisfied that there are reasonable grounds for believing that the specified articles are on the premises for a purpose constituting an offence under either Clause 122 or the Restriction of Offensive Weapons Act 1959. I beg to move.

On Question, amendment agreed to.

Schedule 11 [Evidence before courts-martial etc.]:

The Earl of Caithness moved Amendment No. 126: Schedule 11, page 141, line 47, leave out ("video").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 125. I beg to move.

On Question, amendment agreed to.

Lord Hutchinson of Lullington moved Amendment No. 127: After Clause 130, insert the following new clause:

("Withholding of bail.

. Where a person to whom section 4 of the Bail Act 1976 applies has been remanded in custody under section 128(1) of the Magistrates' Courts Act 1980, a magistrates' court cnsidering whether to grant bail to that person shall not be bound by any previous decision of the court or of another court to withhold bail from that person.").

The noble Lord said: My Lords, I move this amendment because it seeks to cure a situation in magistrates' courts which has given rise to a great deal of trouble and has had very bad results. Most people who are concerned with defendants in magistrates' courts in relation to the questions of bail and remand have found that the mischief which my amendment seeks to cure has caused great difficulty. The effect of the amendment is to seek to reverse the decision made in 1980 in what has been called the Nottingham justices case. This amendment is supported by the All-Party Penal Affairs Group and would give effect to a recommendation of the House of Commons Home Affairs Committee.

The Nottingham justices decided in around 1980 to refuse to hear any argument in support of a bail application at a subsequent remand hearing where bail had been refused at the first hearing unless new circumstances had arisen since the first hearing. That case was taken to the Divisional Court and the court upheld the decision. It said that the court should treat as an essential fact that at the time of refusal circumstances existed which justified refusal under the Bail Act; on the second occasion they should only consider the question of whether those circumstances had changed.

The first observation I should like to make regarding that decision, with great respect to the learned judges who gave it, is that the original decision of the justices is not a finding of fact. It is a finding as to what the defendant might do in the future. Might he commit further offences; might he abscond; might he interfere with witnesses? It is a decision involving informed guesswork on the part of the Bench. That informed guesswork would vary greatly between one group of magistrates and another, who happened to be sitting on the day in question. Some justices might take a very different view of the evidence of a police officer as to the likelihood of such things occurring. They might take a quite different view of a submission on behalf of the accused by his legal representative.

As everyone who has practised in the magistrates' courts knows, some Benches take a far more restrictive view on the question of bail than others. I therefore suggest to the Minister that it is quite wrong that a decision which is often taken after a few minutes' hearing in the bustle of an overcrowded magistrates' court should then be binding for the whole period of a very lengthy remand, which grows longer every year.

The circumstances when an application is made on one date and when an application is made two or three weeks later may change in the most subtle way. Inquiries by the police continue; the situation changes; witnesses are found not to be as they were thought originally to be and so on. The whole position on both sides changes in a way which cannot be put down in terms on a sheet of paper.

There are two mischiefs involved in the Nottingham justices decision. The first was clearly set out in an article by a practising barrister. He said that in his experience a number of matters were not considered to amount to a change of circumstances. His article in the New Law Journal of April 1982 listed: acquiring a job, offering sureties, securing an address at which the defendant can reside, deterioration of health of dependants at home, completion of police inquiries so interference with witnesses is less likely and securing an address away from the scene of the alleged offence". All those matters have been held by various magistrates' courts as not amounting to new circumstances.

The other mischief, which is a very real one, is that because of that decision solicitors do not make an application for bail on the first appearance before a court. In many cases, because they feel that they have not been fully instructed as to the merits of a bail application, they fear that if they make an application which has not been perfected it will be turned down. Then, when more information comes in, they will not be able to make a second application at the next appearance. The result is that many defendants are being remanded in custody with the acceptance of their legal representative, who tells them: "Look, don't make a bail application on this occasion because I can't get it perfected before the next hearing". That means swelling even further the numbers of people on remand in custody. It means great unfairness to defendants and it is a mischief which ought to be cured. It is one which directly results from the Nottingham justices case and which cannot be statistically worked out in any way. It is also a mischief which will not be apparent to those who are sitting in the courts.

For all those reasons, I wish to move the amendment. Perhaps I may also mention the answer which the Government have hitherto given, which is twofold. The first answer is that if a defendant is turned down, he can go to the Crown Court to make an application there. That is perfectly true. However, it can only be done once. With long remands, once that has been done the opportunity is gone.

The other point which has been made by the Government is that the delays in the courts are only added to by a number of bail applications which are not worthy of being made. I am sure that the answer to that is that it is unacceptable to try to reduce delays at the expense of justice for people who still have not been tried and who are in the face of the law innocent. I beg to move.

Lord Henderson of Brompton

My Lords, I should like to support what the noble Lord said. I think he has deployed all the arguments and I can add little except to say that it looks to me as if the Nottingham justices, supported by Lord Justice Donaldson in the Court of Appeal, have overturned the wishes of Parliament. There is no question about that. The wishes of Parliament are that remand hearings should be held every eight days. That decision has effectively overridden the wishes of Parliament. It cannot be right that a judicial decision should do that. This is the shortest and plainest expression of our dissatisfaction with what the Nottingham justices have done.

This amendment seeks to return the law to the state it was in in 1980 before the Nottingham justices' case, and Parliament should take this opportunity of so doing. Not only the noble Lord, Lord Hutchinson, but the Select Committee of the House of Commons has also reported quite recently to the same effect: that this decision should be reversed effectively at the first opportunity. This Bill is the first opportunity.

I believe that all the arguments have been covered by the noble Lord, Lord Hutchinson. I do not need to repeat them. What is at stake essentially, is that the will of Parliament up to now—it has been reversed only by the Nottingham justices and the Court of Appeal—is that magistrates should decide each and every case that comes before them on its merits. That seems to me the nub of the argument. For those short but, as I regard them, very powerful reasons I support the noble Lord.

9 p.m.

The Earl of Caithness

My Lords, as the noble Lord, Lord Hutchinson of Lullington, has told us, this amendment would reverse what has become known as the Nottingham justices' judgment in which the Divisional Court ruled that, when considering a renewed application for bail, the magistrate should be confined to investigation of whether there were any new considerations which were not before the court on the previous occasions. This means, in practice, that repeated applications for bail on identical grounds will not be entertained.

Reading the Nottingham justices' judgment in preparation for this evening's debate, I was struck by the fact that the policy followed by the Nottingham justices was inspired by what the judgment referred to as certain extra-curial remarks made by the noble and learned Lord, Lord Ackner. It seems that the two great protagonists, the noble Lord, Lord Hutchinson of Lullington, and the noble and learned Lord, whose exchanges have enlivened our proceedings on this Bill, crossed swords even before on this issue.

The noble Lord has argued that if this rule were relaxed bail might eventually be granted in more cases. There is nothing between us on the desirability of bail being granted as often as is consistent with the proper protection of the public. In our debates last week, I drew attention to the extent to which the very high remand population contributes to the problems of overcrowding in the prison system. It is a source of great concern both to my right honourable friend the Home Secretary and to myself.

The amendment of the noble Lord, Lord Hutchinson of Lullington, raises two questions. The first is whether allowing repeated bail applications on identical grounds is likely to increase significantly the courts' use of bail. I have to say that I doubt whether it would. In the first place, where a defendant has been refused bail by the magistrates but believes he has a good case, it has been open to him, since the Criminal Justice Act 1982, to make a further application, on the same grounds, to the Crown Court. We made that change in 1982 specifically with the Nottingham justices' judgment in mind. So far as we are aware, the new procedure is working satisfactorily.

I think that that is the flaw in the argument of the noble Lord, Lord Henderson of Brompton, when he said that the Nottingham justices' judgment overruled Parliament and that this is the first opportunity to correct it. It was carefully considered in preparation for the 1982 Bill, which became the 1982 Act. There has therefore been an opportunity before. Indeed, the House considered whether the Nottingham justices overruled Parliament and came to the conclusion that they did not.

The second question is whether it would in any event be right to let the defendant have a second bite at the cherry. I emphasise to your Lordships that what is envisaged is a second bite at the cherry on precisely the same facts. If there has been a change of circumstances, many of which the noble Lord alluded to, the court can consider a fresh application for bail. Indeed, it has no choice but to do so. Given that there is the channel of a further application to the Crown Court, it does not seem to us to be right in principle for the defendant who has been denied bail by one Bench of magistrates, on the application of the Bail Act criteria to be able to shop around until he finds a more sympathetic Bench.

Whatever view one takes of the issue of principle, it would significantly add to the burden on the magistrates' courts if repeated applications were allowed. This would add to delays, and in doing so might have precisely the opposite effect on the prison remand population to that which we all seek.

As I have said, I entirely share the noble Lord's concern that bail should be used to the greatest extent possible. The presumption in the Bail Act is clearly in favour of bail. We are troubled by the extent to which, notwithstanding that presumption, the courts still rely on remands in custody. We are also struck by the wide disparities between different parts of the country and have written to justices' clerks drawing their attention to them. There is therefore a considerable degree of common ground over this, but we really do not believe that reversing the Nottingham justices' judgment is the solution. It would in our view neither be acceptable in principle nor have the effect argued for it. In that respect, I fear that the noble Lord and I must part company.

Lord Harris of Greenwich

My Lords, when the noble Earl says that there is an objection in principle to what my noble friend has recommended, he appears to ignore the fact that until the Nottingham justices' decision one could make such applications. The second point which I would raise with him on the basis of his reply is that the implication of his remarks is that Benches of magistrates would take exactly the same view on such applications. But as we know from all our experience on the basis of decisions taken by different Benches of magistrates, there is absolutely no certainty that a second Bench of magistrates—hearing no doubt, as is often the case, about the intolerable conditions in which people have been kept while in custody, and hearing the argument put on a subsequent occasion—would not take the view that it would be right to grant bail.

I believe that the basic error in the speech of the noble Earl is that a second application to a different Bench of magistrates would automatically lead to their confirming the decision of the first Bench of magistrates. I know of no evidence that that is true.

Lord Hutchinson of Lullington

My Lords, I do not want to take up any more time at this hour of the night. It is yet another example of arguments which are theoretical being put forward. They have no connection with the reality of work in the courts. Work in the courts means an application for bail in an overcrowded court with five minutes in which to do it, with 28 remands and 10 trials waiting. The solicitor, who is enormously busy, makes his application and off goes the person, having been refused bail, with the next case called. There he is, in prison, many miles away.

That is not a decision which can be looked at as a decision of fact. That is the reality of it. In fact, circumstances change and change, but when it comes to trying to argue that the circumstances have changed one is up against this general principle. I beseech the Minister to look again at this matter in due course. Without any question, it is enlarging the number of people being held on remand in prisons—being held for long as well as short periods. This reform would assist the Minister in his efforts which we recognise on this side of the House. We recognise that he is making efforts to reduce the remand population and that he appreciates the scandal of the remand situation. Clearly, the amendment is a way of reducing that number. However, in all the circumstances I beg leave to withdraw the amendment at this stage.

Amendment, by leave, withdrawn.

Lord Monson moved Amendment No. 128: After Clause 130, insert the following new clause:

("Customs and Excise's requirement to publish results of strip searches.

.—(1) The Annual Report of the Commissioners of Her Majesty's Customs and Excise shall contain the following information in respect of the period to which it relates—

1. (a) the total number of strip searches performed under section 164 of the Customs and Excise Management Act 1979;
492
2. (b) the result of the searches carried out.

(2) The information shall also include, as separate items—

1. (a) the total number of strip searches which are drug offence searches; and
2. (b) the result of those searches.

(3) In this section—"strip search" mean a search which involves the removal of more than outer clothing.").

The noble Lord said: My Lords, there is room for honest disagreement about whether it is right for the powers of Customs and Excise to continue to be greater than those of the police in the matter of strip searches, intimate searches and ancillary matters. On the important question of whether to bring the powers of Customs into line with the powers of the police, I am happy to await the report early next year of the right honourable Member for the City of London and Westminster South, Mr. Peter Brooke, as the Minister urged us to do when we last debated this matter three weeks ago.

In order to meet the Government more than half way—indeed, more than three-quarters of the way—I have not moved the greater part of my Committee stage amendment. I have come back with something which is much more modest but, at the same time, extremely important because there are surely four issues on which we can all agree, whatever may be our political outlook.

First, the majority of people bodily searched by the Customs turn out to be innocent. How large a majority is still a matter of dispute, but a majority it undoubtedly is. Secondly, however tactfully such searches are carried out—and one accepts that in most cases they are tactfully carried out—the very nature of such a search makes it inevitable that it will be a distressing and humiliating experience for the innocent individual who is searched in this way. Any noble Lord who may be inclined to dispute this would, I suggest, sing a different tune if it were his wife or daughter being strip searched.

Thirdly, even those noble Lords, if they exist, who are impatient with the moral aspects of the question must be worried at the hostility towards authority in general that strip searches of innocent people are bound to engender. In other words, there are hard-headed practical considerations to take into account as well as purely moral ones.

Your Lordships may be interested to know that the Thames Valley police force—one of the largest in the country—did not carry out a single intimate search last year. I have it on good authority that this is because the police in that area feel that it is totally counter-productive to engage in an intimate search unless one is 95 per cent., and preferably 99 per cent., certain of the person's guilt. In other words, the backlash against the police which occurs when innocent people are searched in this way encourages the police to use these powers as sparingly as possible.

Fourthly, the maximum amount of information on this controversial topic should be made available to both Houses of Parliament and, indeed, to the press and the public so that constructive suggestions for improvements can be put and so that the effect of such improvements can be monitored year in and year out.

At the moment, the total number of searches of the person are recorded, analysed and published. The total number of intimate searches of the person by the Customs are recorded, analysed and published, in consequence of the Police and Criminal Evidence Act 1984—but no separate analysis of purely strip searches is published, although records of such searches are certainly kept. That represents a very worrying gap in our collective knowledge.

The reason this is so worrying is that, unlike the police who are required by their codes of practice to treat any strip searches which involve more than simply requiring persons to take off their clothes and stand with their arms at their sides as de facto intimate searches, the Customs have a much narrower definition of what constitutes an intimate search. When a naked man or woman is forced to bend over a table with their legs apart, that is treated by the Customs and Excise as a mere strip search and is therefore unrecorded, whereas the police would treat it as a much more serious intimate search. It is especially shocking to know, as the honourable Member for Greenock and Port Glasgow, Dr. Norman Godman, revealed in a debate in the other place on 6th May this year, that convicted female prisoners in Scottish prisons who are being strip searched are permitted a greater degree of modesty than is permitted to many wholly innocent women who happen to be passing through Customs halls. The disparity is surely unacceptable.

One remembers the tremendous fuss that there was in 1984 here and in another place in Committee and on Report on the Police and Criminal Evidence Bill about the new powers which enable the police to require people to remove their hats to see whether knives or other weapons are concealed underneath. One is also reminded of the continuing powerful opposition to random breath tests: an opposition which I believe to be wholly justified. For an individual to be required to lift his hat, or for a life-long teetotaller to be required to take a breath test is—I am serious about this—about 100 times less humiliating than an intimate search would be. That is why the matter is so important.

Above all, we need information that will enable us to reach a balanced judgment. Such information is already recorded for the private use of the Customs and Excise. All that is needed is for the information to be collated and published in the annual report of the Customs and Excise, as is the information that is published, as the law now stands, concerning intimate searches.

The Bill is not due to become law for several months, so the constraints of time will not be a problem. I beg to move.

9.15 p.m.

Lord Henderson of Brompton

My Lords, I should like to support the amendment moved by my noble friend Lord Monson. I believe that there is a committee under the chairmanship of Mr. Peter Brooke looking at this matter at the moment. It will no doubt report in due course and legislation will follow. How soon, we do not know. Meanwhile, it is necessary for this modest amendment to be passed. Goodness knows when the Government will find time within their busy legislative programme to include a measure which will tighten up or give statutory force to the procedures that Customs officers have to adopt when conducting these searches.

I have also been looking at the debate on the 6th May in another place. The honourable Member for Greenock and Port Glasgow said: the interests of innocent travellers must be protected at all times".—[Official Report, Commons, 6/5/87; col. 838.] That is important. As the noble Lord, Lord Monson, said, we should consider what such a search would mean to one's wife or child travelling from the most vulnerable departure points, such as Jamaica and Amsterdam. It is horrific to contemplate. The least we can do is to have the information which has been asked for by the noble Lord, Lord Monson, which, as we know, is already available. Why should it not be publicly available? It is available to officials, so why not to the rest of us?

It is an important point. I should like to pray in aid the words of Mr. Peter Brooke, who, when he was Minister of State at the Treasury, answering the debate on 6th May said: Customs officers depend a great deal on the understanding and good will of the ordinary travelling public".—[Official Report, Commons, 6/5/87; col. 839.] This simple amendment would help to command that essential public good will. For that reason, I support the amendment.

Lord Hutchinson of Lullington

My Lords, I also support the amendment. I shall not take up any time in doing so because I spoke on this matter in Committee. It is, after all, a plea that there should be information for the public to see. A horrifying number of people who turn out to be innocent are subjected to this procedure. The Customs have an appalling and incredibly difficult job to do. As has already rightly been said, those people who are subjected to this humiliation should appreciate why it is done. The public should appreciate how often it happens and what the problem is that the Customs experience. Published information can help everyone. It can help the Customs, the traveller and everyone else to see whether the procedure is necessary.

Lord Trafford

My Lords, I have every sympathy with the three noble Lords who have spoken with regard to both the horrendous experience through which people may have to pass and the requirement for information. If I recall correctly—I confess that I am speaking off the top of my head—the Minister told us in Committee when we discussed this matter that there was a positive result in about 20 per cent. of such searches. I am not sure of those figures. I am sure that I shall be corrected if I am wrong.

That is a very high result compared to what one might expect if they were truly random searches. It does not alter the fact—I agree with all three noble Lords—that we need information and we need to know exactly the criteria that Customs may use to decide who will be searched. I suspect, for example, but do not know, that most of those searched are from Nigeria, Pakistan or the Caribbean. I suspect that this is largely because it happens to be fairly well known to the police and to Customs that the methods of bringing drugs into the country are methods used on those particular routes which will be detected only by particularly intimate searches, which on the whole do not apply to your Lordships' wives, about which we have been asked. Nonetheless, it may well be that that is where most of the searches take place.

If it is confined to that kind of area and route, it may be that the positive result rate would rise to something like 40 per cent., but overall it would be about 20 per cent. It is still remarkably high, unless one believes that 20 per cent. of travellers coming to the country are carrying drugs, especially in an intimate sense. I cannot believe that. I believe that Customs authorities frequently act on information received and on knowledge of the route concerned. Indeed, they do a remarkable job in difficult circumstances. The problem in regard to the information is that if it were to be revealed precisely what routes were to be searched and what criteria were going to be applied, the exercise would be pointless. All those whom one was hoping to catch would be warned precisely what route not to use and how not to behave.

I am puzzled that, in speaking of the amendment and these searches, the purpose of which is clear—that is, largely to catch drug traffickers—not one of the three noble Lords supporting the amendment even mentioned the words "drug trafficking". In fairness, perhaps they all assumed that we knew what they were talking about. I see the noble Lords nodding frantically, and of course I accept what they say.

It is a dangerous, serious and demoralising situation that has allowed this vast increase of drugs coming into the country. Sometimes, I think, we have to take a balance and tell people that we are very sorry that such things have to happen although three-quarters of them will be innocent. We have to tell them that we know they are innocent but that, if we catch one-quarter, the good we have done will outweigh the sacrifice, the inconvenience and—to repeat the word used by the noble Lord in moving the amendment—the humiliations sustained.

Personally I should not object to a Customs officer making a reasonable search under reasonable circumstances if he had reason to think—which of course I hope that he would not—that I might be carrying drugs or be part of such a ring. This is something that citizens have to put up with if they wish to play any part in defeating a most dangerous criminal activity.

Lord Henderson of Brompton

My Lords, I ask the noble Lord to withdraw the imputation that noble Lords who have spoken are not concerned about the detection of people carrying drugs into the country. I think that that was unworthy of him.

I wish to ask him also what part of the amendment requires the Government to lay before the public routes that are specially searched. There is no such requirement.

Lord Trafford

My Lords, I said that I thought none of the three noble Lords had mentioned the words "drug trafficking" because they expected that everyone knew what they were talking about. I accepted the nods of the noble Lords agreeing that that was so. If there was any other imputation, I withdraw it unreservedly and apologise to all three noble Lords.

As to the noble Lord's second question, I believe that it is valuable to have information and knowledge of these matters. I agree that it would be unnecessary and not called for, as he rightly points out, in the amendment.

Lord Winstanley

My Lords, it may be helpful if I make clear that noble Lords on these Benches are totally united on this point, if not on all other points, which perhaps we are. I should also make it clear that doctors in your Lordships' House—the noble Lord, Lord Trafford, has just spoken—are united on at least one aspect of the matter; that is, that an intimate search of this kind is a desperately humiliating experience for the person who is subjected to it and something about which your Lordships' House should think very carefully indeed.

Noble Lords will recollect that we have debated this matter on many occasions. From these Benches we have said over and over again that all possible support must be given to those who are doing what they can to halt the import of drugs of addiction into this country. I hope that the noble Lord, Lord Trafford, will accept that I at least, as a person who is very much aware of that problem, have it very much in mind. Nevertheless it would be helpful if the noble Earl were aware that noble Lords on these Benches agree with the noble Lord, Lord Monson, that the proposal he has put forward is desirable and would in the end be very helpful.

Lord Houghton of Sowerby

My Lords, has anything of great worth been discovered as a result of these searches? It seems to me that it has to be very important to justify this kind of treatment of human beings. I wonder whether it is not the sort of pursuit that bureaucracy wants to make in enforcing the taxation system or operating against contraband. How important are discoveries that make it worth putting people through this experience? That is what I am doubtful about. After all what can be carried about is surely very small indeed. Even if it is not, it seems to me that some risks have to be taken in the name of human decency. When one puts this alongside all sorts of other activities that one has to contend with in the field of smuggling, tax avoidance, tax evasion and so on, in no other sphere is the entrant to the country submitted to this sort of treatment. I wonder whether it is justified on grounds of simple humanity and decent treatment of people.

It is a very serious invasion of privacy of the individual. It has to be justified in the national interests very strongly indeed. It has to be almost indefensible and must be stopped in the national interest. Whatever bits and pieces may come in, do they matter? Are they important enough to justify the steps which are taken to stop them? Some inquiry into this ought to be made. It is so easy to fall into the habit of bureaucracy subjecting a citizen to this oversight and that oversight, this treatment and that treatment, in pursuit of such endeavour.

This must be seriously questioned in the much wider field. Steps which may be taken lawfully under an Act of Parliament ought to be reviewed. We regard these things in too perfunctory a manner. We become used to them. We must look at them all again to see whether we are justified in continuing with them.

Lord Irvine of Lairg

My Lords, we on these Benches strongly support this amendment. When the noble Earl rises to reply we ask him to answer this distinct question: what conceivable objection can there be to giving this information? What prejudice to the public interest can there be in making this information known to the public?

9.30 p.m.

The Earl of Caithness

My Lords, the noble Lord, Lord Monson, moved an amendment dealing with information—

Lord Tordoff

My Lords, the noble Earl may not be aware of it but the internal communications of the House have failed. He may have to raise his voice.

The Earl of Caithness

I shall try again, my Lords. The noble Lord, Lord Monson, moved an amendment dealing with information, whereupon the hare ran all around the field of Customs and strip searching. An important subject though it is, it has absolutely nothing to do with the amendment. It had more to do with the amendment we discussed at Committee stage.

Perhaps I may just comment on the remarks of the noble Lord, Lord Houghton of Sowerby, who asked what it is that makes strip searching so necessary. One has only to see a drug addict and the pedlars of death and narcotics to realise what an important subject it is and what a good job Customs does. This is substantiated by the figures. Of the 816 intimate searches from 1st April 1986 to 31st March 1987 224 were successful. As my noble friend Lord Trafford said, it is a great tribute to the work of Customs workers that they have achieved such a high percentage.

In returning to the amendment perhaps I may first explain that certain information about searches of people is already published, as required by the Police and Criminal Evidence Act 1984. This includes the number of people detained at Customs offices following arrest, the number searched, the number of successful searches, the number of arrested people who are intimately searched, the number of intimate searches which disclose Class A drugs and the number of non-intimate searches which disclose Class A drugs. The noble Lord's amendment would apply also to searches of people who have not been arrested and it would apply to strip searches only. I am sure he would agree that his clause is not expressed quite in a form in which it could be accepted, but the intention is perfectly clear.

I mentioned in Committee that a record was kept of the total number of searches of the person. In 1985 there were 46,215 such searches. But it is not at present possible to break this figure down by the type of search. So it includes intimate searches, strip searches and simple frisking. I understand, however, that Customs has very recently started to collect the information in a way which would enable the various types of searches to be separately counted. I am sure the noble Lord will welcome this. It is, I am afraid, too soon for any figures to have emerged so I cannot tell your Lordships how many of the total number of searches are strip searches.

I understand too that in order to produce reliable statistics it will be necessary to test and verify the figures which come in from the field in order to ensure that they are correctly defined and do not duplicate the figures already provided under the Police and Criminal Evidence Act. Indeed the noble Lord, Lord Monson, has drawn attention to some of the definitions which will need to be addressed. I think therefore that it would be premature at this stage to introduce a statutory requirement to publish the particular statistics mentioned in the noble Lord's amendment. This is no doubt a matter which my honourable friend the Economic Secretary will wish to consider when the statistics which are now being recorded start to flow in and to be analysed. I shall of course draw your Lordships' remarks to the attention of my honourable friend.

I cannot accept the amendment tonight. Because of the strength of feeling right across the House I think I ought to discuss it with my honourable friend to see if something can be done in this Bill or whether it will have to wait for another day. With that perhaps the noble Lord will not seek to press his amendment.

Lord Harris of Greenwich

My Lords, before the noble Earl sits down—no, the noble Earl can, with the leave of the House, speak a second time and I hope he will do so.

I should like to be clear on the point we have now reached. As I understand it, the other searches conducted by the Customs and Excise, not including the ones with which the amendment of the noble Lord, Lord Monson, deals, are already done on a statutory basis arising from the Police and Criminal Evidence Act. As I understand it, the noble Earl, Lord Caithness, goes on to say that this particular type of search, the one described in Lord Monson's amendment, is now not only the basis of serious consideration by the Customs but that the Customs have started counting on this particular basis. If indeed they are counting on this basis, given the fact that this piece of legislation cannot possibly get Royal Assent until the summer of next year, what is the difficulty so far as the noble Earl is concerned in accepting this amendment?

Some of us would have had some hesitation in accepting the views of the noble Lord, Lord Monson, in Committee because in my view not only do the Customs do the job well but in fact it is necessary to continue searches of this kind because of the scale of the heroin and cocaine epidemic that we are suffering. Therefore, there is nothing between the noble Lord and I on that issue, but the one point I do not understand is why, if the Customs are now carrying out calculations which will enable them to provide this information, and given the fact that this Bill cannot get the Royal Assent before the summer of next year, the Government cannot indicate that they are prepared not necessarily to accept this amendment today but that they will accept a similar amendment during the later stages of this Bill's proceedings.

The Earl of Caithness

My Lords, with the leave of the House, I think that that is the side I want to look into between now and a later stage—whether all the facts that the noble Lord would like printed are being collected and in what form. This is something that I have to discuss with my honourable friend in another place. It would be wrong for me to try to answer this question now because I might mislead your Lordships. I cannot guarantee by Third Reading to come back with the answer. When I have discussed it I shall write to your Lordships, as I did between Committee and this stage, on matters such as this.

Lord Monson

My Lords, I am glad that the noble Earl accepts that this amendment does not seek to change the current practice of the Customs and Excise in any way. That answers the partial objection raised by the noble Lord, Lord Trafford. All it seeks is enlightenment. I would say that it stands or falls on its own. The investigations currently being carried out by the right honourable Member for the City of London and Westminster, South have no bearing upon this amendment. It is perfectly obvious that it will be many months if not years before any legislation can result from that investigation, given the crowded parliamentary timetable.

I believe that this change is something that is desirable in any case. It has long seemed to me that the Government have an excessive passion for secrecy, which in this case hampers Parliament in its deliberations. I wish I knew whether there was any serious intention by the Government to come back with something at Third Reading. The decision whether to divide rather hangs on that.

I, and I am sure my noble friend, would be happy to accept a revised amendment which provided that this new clause, if it is agreed to, will not come into effect until, say, 1989. This would allow plenty of time for the groundwork that the noble Earl says needs to be done. If that would satisfy the noble Earl, I should be happy if we could come back to it at Third Reading.

The Earl of Caithness

My Lords, with the leave of the House yet again, I do not think I can add anything more to what I said, which is that I do not know what I am going to be able to tell the noble Lord until I have talked to my honourable friend. As soon as I have, I shall be able to let your Lordships know.

Lord Harris of Greenwich

My Lords, perhaps I may suggest, with the leave of the House, that the noble Lord, Lord Monson, should take note of what the noble Earl has said and ought not to press this amendment tonight.

Lord Monson

My Lords, with the leave of the House, it seems to me that it would perhaps assist the the Government in their deliberations if the feeling of the House were tested now. No? Very well. I should like to say to the noble Earl that the reason why I drafted the amendment in the way I did is that intimate searches are already covered by the Police and Criminal Evidence Act and, therefore, it seems superfluous to repeat that cover in this amendment. However, perhaps there is some technicality of drafting that I have missed. With the noble Earl's at least partial assurance for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 131 [Remands in custody for more than eight days]:

Lord Morris moved Amendment No. 128A:

The noble Lord said: My Lords, I believe it would be convenient if I were to speak to Amendments Nos. 128A and 128B together.

Page 94, line 2, leave out ("formed a view as to") and insert ("decided").

Page 94, line 3, leave out ("likely").

The purpose of Clause 131 we know. As a result of consideration by Her Majesty's Government and others, the maximum period for which magistrates' courts may ordinarily remand in custody a person who has not been convicted or committed for trial has been changed from eight clear days to 28 clear days. We should do this with proper safeguards. It was the absence, in my view, of proper safeguards to the standard originally set in the discussion document that most concerned me about this clause. Those standards in the discussion document suggested a new statutory emphasis on the duty of the court to consider actively the progress of the case. The reason for the safeguard is obvious; the whole purpose of the eight-day rule was so that the courts could do just that.

It is the Government's contention that this system is not working properly. The eight-day rule is not cost-effective and is doing no good to the Crown Prosecution Service or anyone involved in the process of prosecution. It is my understanding that the need for change flowed from the penal service, which, of course, is the responsibility of the Home Office. Their major concern was to save money in the escorting of prisoners. It has turned out that the major saving of money will come from savings on legal aid. If that is the case, the safeguard in the clause as drafted is not so strong as was originally intended. That is why I have changed the wording of the clause from "formed a view as to the minimum period likely to elapse" to "decided the minimum period to elapse before the next stage in the proceedings".

I believe this is important because it gives effect to the intention already published by the Government. I suspect that my noble friend will consider the wording of this safeguard will now be too inflexible. With regard to that point, I know that my noble friend has considered the most telling letter in The Times by the new Director of Public Prosecutions—

Lord Tordoff

My Lords, I am sorry to interrupt. I do not know whether the noble Lords are aware that the public address system in this House has failed. I think, in the interests of the Official Report, it would be helpful if noble Lords could perhaps raise their voices above their normal persuasive level so that Members in all parts of the House can hear what they are saying.

9.45 p.m.

Lord Morris

My Lords, I am worried because I doubt whether the public address system will help the way in which I deliver my speeches in any event, but I shall do my best.

Perhaps I may return to the letter of the Director of Public Prosecutions, which is relevant to this point. He states inter alia: For the Crown Prosecution Service to play its own role effectively, it is essential to have the wholehearted and ungrudging cooperation of the magistrates' courts and the police, among others. Magistrates' courts can help by organising their lists with some consideration for the limited resources of the service, and by giving the CPS proper advance notice of the cases to be heard.". That is one element of the problems that the service has to face. It might be asked: what on earth has it to do with remand prisoners? I believe strongly that if the court, having had the opportunity to hear representations by both the prosecution and the defence, is given the power to set down a period it considers reasonable, we shall get closer to the Scottish system. under which the mind is concentrated by firm time limits of remand. I do not want to make it too restrictive, but I think it would help, not least when one considers that the process of prosecution is dependent not only upon the Crown Prosecution Service but also upon all those who contribute to that service.

In the course of an earlier amendment, my noble and learned friend Lord Hailsham of Saint Marylebone stated that prosecution serves the interests of justice, not one side or the other. It is absolutely essential that the prosecution submits its case properly and likewise that the defence does not muck about. The forensic services are short staffed and it is important that proper resources are brought to bear to aid the prosecution process. If the amendments are passed it will help those interested to put realistic pressure upon our unholy mother the Treasury for more resources for this department in order to expedite prosecution of cases, which will reduce the number of remand prisoners and save costs.

The argument should appeal to my noble friend because, as he is no doubt aware, there are shortly to be introduced national statutory time limits—which I support—under the provisions of Section 22 of the Prosecution of Offences Act 1985. It may be argued: why try to change the eight-day rule at this stage? Why not wait for this welcome change to come about? It will have a direct bearing on the prosecution of cases. I hope that we shall have a comprehensive answer from my noble friend. I am sure that he will do his best. I beg to move.

The Earl of Caithness

My Lords, with respect to my noble friend, I think that he is seeking by his amendment to introduce a greater degree of certainty about future events than can possibly obtain. In practice, a case is most commonly adjourned, and a defendant may be remanded in custody in given circumstances, because either the prosecution or the defence is not able to proceed. Even after hearing representations, as is already required under the clause, the court will not be able to decide when progress will take place. Moreover, before the expiry of the period of remand, the circumstances of either the prosecution or the defence might easily change.

Having said that, I understand the thought which has led my noble friend to make his proposal. I share his concern that cases should not be allowed to drift, and that when a case has been remanded for a particular period it should go ahead on that date unless there is very good reason why not.

This is precisely what we see as likely to happen under the clause as it stands. The presumption must be that the next stage in the proceedings will take place at the end of the period of remand, except of course in those cases where the court has recognised, in remanding for 28 clear days, that that period of 28 days is less than the minimum period likely to elapse before the next stage.

Under the clause as it stands, the court will be well placed, and certainly better placed than now, to insist on progress with cases. If at the end of a period of remand under the clause either party professes not to be ready after all, it will at the least have to explain to the court what has happened to change the position since the parties last had an opportunity to make representations. If there are new and good reasons for a further adjournment then, as now, the court would have to consider them. The difference will be that the court will do that against the background of a view which it took when remanding the defendant. This should strengthen its hand in calling the parties to account if there are occasions when, a period of remand having been decided upon, it is then suggested at the next appearance that there are reasons for not proceeding.

My noble friend also mentioned time limits and I can confirm that time limits exist in three areas of the country at the moment and will be further extended once the trial periods are over. In the light of what my noble friend has said I should like to look again at the language of the clause to see whether there is any way in which we might make it more positive. My present feeling is that, as it stands, it is probably as positive as it can be in an uncertain world about the view that one can realistically expect the court to take about future progress. However, I shall look again at the wording and hope that my noble friend will leave matters as they are for the time being.

Lord Morris

My Lords, I am most grateful to my noble friend for that answer. I was unhappy about this matter but I am grateful that he will be having another look at it. However, perhaps I may just make one quick point. As he stated, there is very little certainty in this world, particularly in the context of estimating the timing of prosecution. How can my noble friend possibly live with the contention, which he has made very strongly at Committee stage and now, that subsection (2)(ii) is in fact a safeguard? That is precisely the point that I am trying to make. With that in mind I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128B not moved.]

9.53 p.m.

Lord Irvine of Lairg moved Amendment No. 129: Leave out Clause 131.

The noble Lord said: My Lords, I rise to oppose the inclusion of Clause 131 in the Bill. Clause 131 means that in designated areas the maximum period for which magistrates may remand a person in custody pending committal or summary trial can be increased from eight days to 28 days. At this stage it is intended only to experiment with the civil liberties of those who are unfortunate enough to live in those designated areas, but noble Lords will note that the experiment may be extended to all parts of the country and be made permanent without any further statutory authority being required.

I have a number of serious questions to raise about this provision, to which I hope the noble Earl will give answers that are practical and not purely theoretical. In looking for answers that are practical and not theoretical I am conscious that I am echoing the words of the noble Lord, Lord Hutchinson of Lullington, when he spoke on Amendment No. 127. He sought to have this House reverse the Nottingham justices case, a point which obviously is closely connected with the points that arise on this clause. In the context of the debate on Amendment No. 127, on the one hand, we were told that magistrates have had to be written to about the need for consistency in dealing with bail applications and, on the other hand, we were told that one application is the most that can be made unless there is a change in circumstances, although the very inconsistency that there is, and is acknowledged to be, in magistrates' practice demonstrates that a renewed bail application on the same facts to a different Bench of magistrates could well succeed. Therefore, in the debate on this clause we look for answers which are practical as distinct from objections which are theoretical.

In debate in Committee on Clause 131, serious objections to this experiment were expressed by the noble Lords, Lord Morris and Lord Hutchinson of Lullington, as well as by myself. On reading the debate in Hansard, I fear that the Minister did not answer any of the questions of substance, and that that was a rather striking failure when one considers that there has been considerable public debate, and debate in the journals, about this proposal. So what I would do is reiterate, shortly at this hour, the objections; and I hope that we may hear some realistic responses on this occasion.

First, the whole change is based upon the assumption that there are every year 68,000 unproductive remand hearings which this change will eliminate from the system. A defendant, though, may already voluntarily be remanded in his absence on up to two occasions. Given that possibility, do the Government really believe that there are as many useless hearings as they suggest? Have the Government defined a useful hearing as one at which there is some formal progress in the proceedings? If so, have they not left altogether out of account the benefit that an accused obtains from being able to consult with his solicitor on those occasions when he is brought before the court?

Further, I invite the noble Earl to tell us whether the Government stand by this figure of 68,000 unproductive hearings put forward by the court escort scrutiny. If the Government stand by that figure, what weight has been given to the fact that the Home Office has itself stated in a consultation document that defendants remanded for long periods were overrepresented in the sample of 400 cases taken by the scrutiny? If the scrutiny overestimated the average period of remand in custody, it almost certainly got the average number of hearings wrong as well. So is it not a fact that the whole statistical foundation for this change is flawed?

Secondly, how does the noble Earl answer the argument that this change will increase the cost of remands to the public purse and not decrease cost? What provision has been made for the increased burden on the Legal Aid Fund when solicitors have to travel long distances to prison to see their clients instead of meeting them at court? Or is the truth of it that the Government envisage that the defendant will simply do without any legal assistance for 28 days? If so, does the noble Earl agree that the right to apply for bail during the remand period will for all practical purposes be rendered meaningless?

The Government have quoted figures for the savings that they hope to make. What I should like to know is just how much extra costs they anticipate will be incurred. Obviously these should be put into the other side of the balance sheet if it is a matter that is to be reckoned in terms of costs. Thirdly, do the Government concede that in practice the 28-day maximum is bound to become the norm? That is a point that was emphasised in Committee. We emphasise it again and we ask whether the Government appreciate that the 28-day maximum is bound to become the norm. How can it be otherwise when the Crown Prosecution Service is so scandalously underfunded? I noted on re-reading in Hansard the debate in Committee that there was no denial that the Crown Prosecution Service is scandalously underfunded. Will that service not take this change as meaning that, hard-pressed as it is, it is only every 28 days that it need trouble to show some progress in the case?

In Committee, the noble Earl engaged, if he will forgive me, in what certainly in retrospect appears to be some quite remarkable double-think. He denied that 28 days would be the norm, but when he sought to justify the argument that savings would be made he expressly stated that they were based on 28 days as the normal remand period. Does that therefore mean that 28 days is to be the norm after all? We invite a distinct answer on that. If not, does it not follow that the savings will be less than have been claimed even on the Government's own rather lopsided arithmetic? Again, the noble Earl assured the Committee that the Government would reconsider their position if it were proved that the change led to an increase in the remand population. The noble Earl rightly said that the growth of the remand population was one of the most pressing problems that we face. He agreed that unconvicted persons are held in extremely unsatisfactory and overcrowded conditions.

For my part, I do not see how it can be doubted for one moment that a 28-day rule will be bound to aggravate the problem. At present an accused must be brought to court every eight days. He has an opportunity on those occasions to speak to his solicitor and if appropriate he can apply for bail on the spot. If the change goes through he will instead be remanded for 28 days and that is in all probability the last that the court will hear of him for another month. That is as certain a way as we can imagine of increasing the prison population yet further. It will also involve increased costs which may well outweigh any savings that could be looked for from this change.

Finally, is it not a serious thing to remand a man in custody? He is still presumed innocent because he has not been proved guilty. Indeed, there is an almost 40 per cent. chance that in the end he will be found not guilty or will receive a non-custodial sentence. If he is to be incarcerated he should at least have the right to appear in court every eight days so that he can have every opportunity to demonstrate why he should have bail.

Also, on those occasions he has a proper chance to talk to his solicitor and the court can exercise some degree of control over the way in which the Crown Prosecution Service, sadly underfunded as it is, is proceeding with his case. I oppose this clause of the Bill because we should not trade the civil liberties of unconvicted men and women for wholly speculative economies. For those reasons we urge your Lordships' House not to permit this clause to remain part of the Bill.

10 p.m.

Lord Hutchinson of Lullington

My Lords, I strongly support this amendment for one particular reason. I support all the arguments which have been put forward so well. This is an attempt, by depriving defendants of their rights, to solve what is an entirely administrative problem. The basis of this 28 day idea is an attempt to save the escort duties of prison officers and to get at the hours and hours of overtime they are earning through these duties. That is not a proper way of solving the problem. The Minister shakes his head. But the justification for this experiment—the 68,000 unproductive hearings—is put forward strongly as an enormous waste of time and money on the part of prison officers who have to do the job.

The way to solve that problem is to stop prison officers doing useless jobs in court such as sitting in the dock with defendants who do not require them to sit there and from whom there is no danger whatever as regards security. In dock after dock throughout the country prison officers are sitting there doing absolutely nothing other than earning overtime and enjoying themselves with a day out, listening to amusing cases. If you attack that problem, you will begin to solve the problem of escort duty. This is not the way to do it.

I entirely agree with the comment regarding sloppiness which the noble Lord made in speaking to a previous amendment. The words, formed a view as to the minimum period likely to elapse", should not be found in an Act of Parliament.

It is our duty to oppose any suggestion to increase the numbers of people on remand and in custody. It must be our job to opppose that. What a pity it is that instead of this clause we do not have one directed towards making bail more possible to grant, having information sent to justices, organising particular bail courts, increasing bail hostels and all those matters which would attack the problem where it ought to be attacked. This clause does nothing except increase the number of people on remand.

The Earl of Caithness

My Lords, deprivation of liberty pending trial is a very serious matter. We have sought in Clause 131 to make a provision which balances scope for improvements in the management of cases before the court and in the deployment of Prison Service resources with safeguards for the liberties of the accused person.

The clause which is before us today is a result of much careful thought. As your Lordships are aware, the operation of current procedures by which a person may not normally be remanded in custody for more than eight days was considered in the course of the scrutiny by the Home Office and the Lord Chancellor's Department. That scrutiny involved extensive discussions with and visits to a wide range of prison establishments, Crown Court centres, magistrates' courts and police forces.

We found that many remand hearings resulted in no progress in bringing cases to trial after the first or second appearance—

Lord Harris of Greenwich

My Lords, will the noble Lord repeat what he has just said? The public address system is not working.

The Earl of Caithness

The scrutiny found that at many remand hearings no progress is made in the process of bringing the case to trial after the first or second appearance when applications are often made for bail or legal aid appearances are very often pure formalities. And yet these fruitless appearances impose a burden on the court, which must conduct a hearing, and on the prison service, which must produce the prisoners, often from considerable distances away. On the basis of findings in the court escort scrutiny, we issued a consultation document in December 1986 on the proposal that courts should be permitted to remand for up to a maximum of 28 days.

The proposals which I commend to your Lordships today are the result of a scrutiny report and of the consultations. We believe that what has finally emerged produces satisfactory safeguards for the defendant. The proposal is that the first remand should be for a period of eight days, as at present. At that early stage there is therefore no change proposed. There would be two appearances a week apart at which an application for bail could be made. Therefore, the court would be able to remand either to the day it considered that proceedings were likely to go ahead or for up to 28 days, whichever was shorter.

The clause imposes a specific requirement on the courts to provide an opportunity for representations to be made before remanding for more than eight days. In addition, nothing in the clause affects the defendant's right to apply for bail at any time during the period of remand if circumstances have changed. The court will also be required, when considering a remand of more than eight days, to have regard to the overall length of time the defendant would have then been in custody.

I was very surprised to hear the argument put forward by the noble Lord, Lord Hutchinson of Lullington. Times have moved on since he sat in court. The great majority of prison officers do not have overtime any more. Since the introduction of Fresh Start, which is now in about 100 prisons, they work a certain number of contracted hours. It is not overtime-driven as it was before. I was very surprised to hear the noble Lord use that rather outdated argument.

The noble Lord also said that we should tackle the remands by further bail hostels, and so on. If he had been in his place when the noble Lord, Lord Harris of Greenwich, raised the question of police cells last week he would have been able to hear me say what provision the Government were making as a result of the Autumn Statement of the Chancellor. It was an announcement welcomed by the noble Lord, Lord Harris of Greenwich.

Turning to the point raised by the noble Lord, Lord Irvine of Lairg, on the figure of 68,000, the scrutiny report took account of the existence of remands in absence. It is no doubt not beyond improvement but it still seems to us a reasonable estimate of the information available.

The noble Lord also suggested that bail opportunities are reduced because the defendant will see his solicitor less often and that routine remand hearings are useful occasions for that purpose. However, it cannot surely be sensible to hold court hearings simply to allow defendants to meet their solicitors. Obviously visits by lawyers to prisons are likely to increase if remand hearings are less frequent, but the basic case for bail is likely to have been put already and there is still a clear potential gain in the overall deployment of legal resources by avoiding unnecessary hearings.

The court escorts scrutiny estimates that there could be a saving of £3 million per annum in legal aid from the reduced number of remand hearings. Against this must be offset the legal aid costs of an increased number of visits by legal representatives to clients held in prison because the opportunities to see clients at court would be reduced, as the noble Lord said. Even allowing for increased visits to prisons, it would still be reasonable to estimate savings at £1.7 million per annum in legal aid. The savings to the public purse as a whole will be even greater since the cost of mounting a court hearing falls on the prison service, the police and the courts in addition to the Legal Aid Fund.

However, it is not just a question of narrow cost-cutting but of ensuring the most effective use of the resources which are already applied. It is surely not sensible where, for example, a case cannot possibly progress, or that the defendant has no intention of applying for bail, that the defendant should be brought before the court automatically every eight days. It disrupts the defendant and the prison, and it unnecessarily clogs up the court. We are advocating this provision because we believe that it would be of real assistance in streamlining court business.

I understand the concern that the noble Lord, Lord Irvine of Lairg, expressed about the Crown Prosecution Service and that it should be adequately staffed to play its part in the process as I have described it. But I think that the noble Lord gave too little weight to the efforts we are making to improve the resources available to the new service. The financial provision for the Crown Prosecution Service in 1988–89 is £169 million, an increase of £17 million or 11 per cent. over the previous year's provision of £152 million. Furthermore, approval has been given for the staff complement of the service to rise from 4,120 in April 1987 to 4,540 in April 1988 and 5,180 in April 1989. That represents an increase of over 25 per cent.

Those who say that the Crown Prosecution Service is under-funded seem to have a lot in common with those who say that our prisons are overcrowded. There is no substantial basis for that. It may be true that in some parts the Crown Prosecution Service is facing difficulties, but if the noble Lord had read the letter in The Times he would have seen that the Crown Prosecution Service is doing very well in a great many parts of the country.

Both noble Lords said that our proposals would increase those on remand. I give the House the assurance that if that happens we shall not pursue the experiment. We believed it right that this measure should be brought in at one time but we took account of the representations made to us that it would increase the number on remand. That is something my right honourable friend and I certainly do not want and it is for that reason we opted to begin with the experiment. If the experiment proves that the numbers on remand increase, then of course we will not pursue it. However, we firmly believe that the experiment will show that the numbers on remand will be reduced as a result of the government proposal. I strongly commend this clause to the House.

Lord Donaldson of Kingsbridge

My Lords, noble Lords on this side of the House are not affected by the suggested argument of the Minister that prisons are not overcrowded.

The Earl of Caithness

My Lords, with the leave of the House—if I need it before I sit down—it is said that all prisons are overcrowded but, as the noble Lord knows, about half are at or below capacity.

Lord Morris

My Lords, my noble friend rightly referred, in his response to the amendment, to the depth of consultation. I do not require an answer today but he could write to me. As he rightly said, the discussion document was published on 16th December 1986. The House rose for the Christmas Recess on 18th December and the public discussion was open over the recess until 31st January the following year. May I ask my noble friend if the opportunity for public discussion was extended beyond 31st January? My noble friend the Chief Whip is totally out of order to reprimand me as I have not yet spoken on this amendment.

Lord Henderson of Brompton

My Lords, too, have not spoken on this amendment. I should like to put one question which arises out of the reply of the noble Earl. I take the point that he is going to experiment to see whether or not this provision, Clause 131, does or does not increase the number of prisoners on remand. Whether or not it does, indubitably it does diminish civil rights. That was also the case in Amendment No. 127. I was properly rebuked by the Minister for not mentioning the 1982 Act when I spoke to that clause. But the fact is that both Amendment No. 127 and Clause 131 represent a diminution of civil rights and I do not believe there is any gainsaying that.

I am always prepared to concede that there is a case for diminishing civil rights when it is a matter of national security. That must be so. It is done under very careful scrutiny and circumscribed with safeguards. However, in this clause civil rights are being reduced, not for national security but for the saving of administrative costs. To call this "narrow cost cutting" or "most effective use of resources"—both phrases used by the noble Earl—does not matter. What you are in fact doing is cutting civil liberties for the sake of saving a few pence.

I believe one ought to tread very carefully before doing that. I am glad that the noble Lord, Lord Irvine of Lairg, has raised this question. I would be interested to learn whether the noble Earl agrees that this is a case of diminishing civil liberties for the sake of administrative cost cutting.

10.15 p.m.

Lord Irvine of Lairg

My Lords, at this hour I shall be brief. The noble Earl has answered some of the questions which I raised and has half answered others, but some he has completely ignored. He recognises that the opportunity to consult a solicitor is an advantage which derives from these eight-day remands, but says that it does not justify eight-day remands which otherwise are not necessary because no progress is being made in the case. On the other hand, he recognises that the approach will mean that when solicitors visit unconvicted accused persons in prison extra costs will have to be borne by the legal aid fund. He then told us that some calculations of comparative costs have been made. He does not tell us the basis upon which those calculations were made. I would welcome it if he were to write to me on this subject so that we can see how these calculations, which were not available in Committee, have been made and upon what basis.

The noble Earl has not responded to the question as to whether the Government expect that 28-day remands will, in practice, become the norm, and nor has he dealt with the hopeless position that those unconvicted accused will find themselves in when seeking from prison to apply for bail.

All I propose to say at this stage is that we put on record the fact that our objections to these provisions have not been properly or adequately answered. Now is not the time to test the opinion of the House, but we promise to return to this subject on Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ewart-Biggs moved Amendment No. 130: After Clause 131, insert the following new clause:

("Periodic Crown Court review.

The following subsections shall be inserted after subsection (5) of section 23 of the Children and Young Persons Act 1969—

"(6) Where a child or young person is committed to the Crown Court for trial or sentence, the period of a remand to care by virtue of subsection (1) of this section or of a committal to a remand centre or prison by virtue of subsection (2) of this section shall not exceed a period of 8 clear days.

(7) Where the court is satisfied that the child or young person is unable by reason of illness or accident to attend court, the court may in his absence remand for a further time under subsection (6) of this section".")

The noble Baroness said: My Lords, I shall move this amendment briefly. It is important because it seeks to remedy an inconsistency. Its purpose is to ensure that children and young people committed for trial or sentence at the Crown Court have the same rights as those being dealt with in the juvenile court. That is important for young people remanded to care who are locked up in secure accommodation and for those in prison establishments under unruly certificates who at present may be locked up for many months without a court review of their incarceration.

Under Section 128 of the Magistrates' Courts Act 1980, anyone who is refused bail and remanded to care or custody has to be brought back to a juvenile court every eight days. Under the Bill, that period is to be altered to 28 days for all except those under 17. The arguments put forward by the Children's Legal Centre and others are that young people should be excluded from this change in the law. However, those children and young people who have been charged with murder or an offence for which a Section 53 sentence is appropriate, or who are charged jointly with an adult and are therefore committed to the Crown Court for trial, are not protected by any periodic return to court, let alone one every eight days.

All young people in secure units have a periodic review of their placement by the court. That provision was introduced by the Criminal Justice Act 1982. It was subsequently decided that those who are placed in secure units by the social services should have a court review at three and then six-monthly intervals. But for those on remand, the Secure Accommodation (No. 2) Regulations require that the period of court authorisation for placement in the secure unit should be the period of the remand.

That means of course that those young people, who may of course be deemed innocent of the alleged offence, would have a court review every eight days. The Children's Legal Centre was closely involved with the regulations. It feels that when so much care was spent to ensure that young people would have a regular review of their placement it is anomalous that one small category of young people—namely, those committed to the Crown Court—should have no review.

I hope that the Government will reply to what seems to be an inconsistency: they agree that children who appear before a juvenile court should have a periodic review every eight days, but for those who appear before the Crown Court there is no review. I beg to move.

Lord Henderson of Brompton

My Lords, I support the amendment. So far as I can see, the noble Baroness is correct to bring this up. I can only conclude that it is by some oversight or hole in the procedure that the periodic Crown review does not take place in these cases. If that is so, perhaps the Minister will consider introducing a provision to meet the case so ably put by the noble Baroness. Although the words of the amendment may not be entirely right to fill the hole, I hope that something can be done before the Bill leaves the House.

The Earl of Caithness

My Lords, this amendment raises some very important points about the way in which juveniles awaiting trial or sentence in the Crown Court are dealt with. The purpose of the amendment would be to secure regular eight-day remand hearings for such juveniles who have been remanded in custody or local authority care. There are two main points at issue: the need to ensure that juveniles remanded in custody awaiting a Crown Court hearing are not deprived of their liberty unnecessarily; and to ensure also that the court hearing takes place with as little delay as possible.

In considering the first of those two points, it is necessary to have regard to the process by which juveniles arrive at this position. They may already have been convicted by a juvenile court and committed to the Crown Court because the juvenile court felt its sentencing powers were inadequate. In practice, this would be likely to mean that the juvenile court felt that a custodial sentence of more than six months was necessary, so the likely eventual outcome of the case will be a custodial sentence.

Alternatively, the juvenile may have been committed for trial at the Crown Court. This can happen either where the juvenile is being tried jointly with an adult or where he is charged with a very serious offence for which the magistrates feel that, if he is convicted, a long custodial sentence under Section 53 of the Children and Young Persons Act 1933 should be available. In either case there will have been preliminary hearings at the magistrates' court in which a prima facie case will have been made out. So we are dealing here with a situation which is rather different from that prevailing in the juvenile court where there is provision for eight-day remands. The decision to remand in custody or in care rather than grant bail has to be set against that background. Nor does the present procedure mean that the juvenile who is remanded in custody or care is deprived of any opportunity of regaining his liberty before the case is heard, since he may make a further application for bail to the Crown Court.

The other primary purpose underlying this amendment concerns delays. I wholly accept that it is undesirable for the hearing of any case involving a person remanded in custody to be unnecessarily delayed. It is especially important to avoid delay in the case of juveniles. Many factors can contribute to delay. For example, either the prosecution or the defence itself may not be ready for trial at an early stage. So far as concerns the prosecution, the code for crown prosecutors refers to the need to, deal with the juvenile as expeditiously as possible consistent with the interests of justice". I am aware, however, that there is real concern about the delays that can occur. Following an approach from the London Boroughs' Children's Regional Planning Committee the Home Office is alert to the problem. We have asked the committee for more information about the reasons for delay in the particular cases that have been drawn to our attention with a view to seeing what might be done to improve matters. Crown Court listing officers are instructed to give priority to cases where defendants are held in custody and they will have regard to the fact that where a juvenile is involved there is a greater need to bring on the case as soon as possible. We have discussed the problem with the Lord Chancellor's Department and it will be issuing further guidance to listing officers about the need to give suitable priority also to cases involving juveniles held in secure accommodation during a remand in local authority care. Where there is concern about the time taken in an individual case the defence solicitor should certainly not hesitate to approach the Crown Court listing officer.

We in the Home Office are very anxious indeed to ensure that juveniles do not have to wait for unnecessarily long periods either in custody or in secure accommodation before their cases are heard. I do not believe that statutory provision of the kind envisaged in this amendment is the right way forward. Somewhat paradoxically, perhaps, it could worsen the position since regular remand hearings would mean extra work for the Crown Court and thus increase the chance of delay. It is better to attempt to resolve the problem without recourse to legislation. I have mentioned some of the steps that have already been taken. In addition, I shall ensure that the question of delay is carefully examined on the basis of evidence that the London boroughs' committee may put forward, so that we can see what more might be done to improve matters. I am sure that this is the right way forward and I hope that what I have said will relieve some at least of the legitimate anxieties of the noble Baroness on this question.

Baroness Ewart-Biggs

My Lords, I am very grateful to the Minister for having made it quite clear that this apparent inconsistency is being given a great deal of attention and that there is genuine concern that young people who are locked up in secure accommodation or in prison establishments under the unruly certificates should not be kept there longer than necessary. I am grateful to him for having explained it so carefully. I look forward to reading what he said and consulting with those who advise me. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Lord Hunt moved Amendment No. 131: After Clause 131, insert the following new clause:

("Day detention.

.—(1) The Secretary of State may provide day detention centres.

(2) In this Act "day detention centre" means a place at which offenders aged 17 or over may be required to attend and be given under supervision appropriate occupation or instruction, in pursuance of orders made by the Crown Court or magistrates' courts under subsection (4) below.

(3) The Secretary of State may by statutory instrument make rules for the regulation and management of day detention centres.

(4) Subject to subsection (6) below, where a court—

1. (a) has power, or would have power but for section 1 of the Criminal Justice Act 1982, to pass a sentence of imprisonment on a person who is not less than 17 years of age or to commit such a person to prison in default of payment of any sum of money or for failing to do or abstain from doing anything required to be done or left undone; or
2. (b) has power to deal with any such person under section 6 of the Powers of Criminal Courts Act 1973 for failure to comply with any of the requirements of a probation order,

the court may, if it has been notified by the Secretary of State that a day detention centre is available for the reception of persons of his description, order him to attend at such a centre, to be specified, in the order, for such number of hours as may be so specified.

(5) An order under subsection (4) above is referred to in this Act as a "day detention centre order".

(6) The aggregate number of hours for which a day detention centre order may require an offender to attend at a day detention centre shall be not less than 40 and shall not exceed 200.

(7) The times at which an offender is required to attend at a day detention centre shall be such as to avoid interference, so far as practicable, with his school hours or working hours.

(8) An offender shall not be required under this section to attend at a day detention centre for more than eight hours on any occasion.

(9) Where a day detention centre order has been made and it appears on information to a justice acting for a relevant petty sessions area that the offender—

1. (a) has failed to attend in accordance with the order; or
2. (b) while attending has committed a breach of rules made under subsection (3) above which cannot be adequately dealt with under those rules,

the justice may issue a summons requiring the offender to appear at the place and time specified in the summons before a magistrates' court acting for the area or, if the information is in writing and on oath, may issue a warrant for the offender's arrest requiring him to be brought before such a court.

(10) If it is proved to the satisfaction of the magistrates' court before which an offender appears or is brought under this section that he has failed without reasonable excuse to attend as mentioned in paragraph (a) of subsection (9) above or has committed such a breach of rules as is mentioned in paragraph (b) of that subsection, that court—

1. (a) if the day detention centre order was made by a magistrates' court, may revoke it and deal with him, for the offence in respect of which the order was made, in any manner in which he could have been dealt with for that offence by the court which made the order if the order has not been made;
2. (b) if the order was made by the Crown Court, may commit him in custody or release him on bail until he can be brought or appear before the Crown Court.

(11) Where by virtue of subsection (1)(b) above the offender is brought or appears before the Crown Court and it is proved to the satisfaction of the court that he has failed to attend as mentioned in paragraph (a) of subsection (10) above or has committed such a breach of rules as is mentioned in paragraph (b) of that subsection, that court may revoke the day detention centre order and deal with him, for the offence in respect of which the order was made, in any manner in which it could have dealt with him for that offence if it had not made the order.").

The noble Lord said: My Lords, in rising to move the amendment I have some misgiving because I feel quite strongly that a proposal which is seen by the All-Party Penal Affairs Group as being of considerable importance should, by misfortune, be heard by so few of your Lordships so late in the evening. I move the amendment because I think it only right that the response of the Government should be known and placed on the record.

The purpose of the amendment, which I am moving on behalf of the All-Party Penal Affairs Group, is to provide a further alternative to custody for adults in local prisons—in view of what the noble Earl said, I am well aware that it is in local prisons that the real need arises—and the need for which requires no emphasis from myself. Despite the length of the amendment which is necessary to put the proposal into its proper statutory form and backing, it is a very simple proposal. Day detention would be no more than an extension to include offenders of 17 onwards into adulthood in the successful use of attendance centres for juveniles and young offenders under 17. The name is chosen to make this distinction and to make it clear that the period to be served is a whole day's work rather than a half day, as is the case for young offenders.

Attendance centres have been described in a White Paper published in 1980 as: One of the most useful penalties for young offenders". It is the contention of the All-Party Penal Affairs Group, to which I strongly adhere myself, that this could be true for adults. I should mention—this is very important—that the Magistrates' Association would particularly like to have this power for use in its courts. However, it would prefer to have the name changed to attendance centres rather than day detention centres. For those whose offences would make this form of punishment appropriate, it would involve detention within daytime of one day each week for eight hours spread over a period of months within a maximum of 200 hours. The sentence would be served in some existing institution, such as a school or a college, when such premises are not in use. It may be possible to double up, in a separate part of the building and under separate staffing arrangements, with junior offenders undergoing attendance centre treatment.

The regime, about which I shall say very little, would be varied. There would be further education programmes; group discussions about the offences for which offenders are serving their detention-centre periods; skills training, some form of community service, and so on. There is a useful precedent for this form of deprivation of liberty in New Zealand. It is entitled Periodic Detention, and it is well established there after 10 years. In the 1981 report of the New Zealand Policy Review Committee, it was described as follows: A much needed innovation; a constructive penalty which does not involve the social and economic costs of imprisonment; and results in tangible benefits for many sectors of the community".

In New Zealand the sentence is imposed for a variety of lesser offences within the categories of theft, deception, wilful damage, assault, drunken driving and driving while disqualified. I suggest that to these might be added in British courts fine defaulting, failing to comply with various court orders, such as community service orders, supervised activities orders and probations orders. It is claimed to be especially appropriate for people who lack the self-discipline and positive motivation needed for serving community service orders. This was one of a number of proposals for intermittent custody put to the Home Secretary in 1983 following a visit to Holland and Belgium by the All Party Penal Affairs Group.

The discussion of those proposals was contained in a Green Paper in 1984, but unfortunately that Green Paper referred only to those which would involve overnight detention in a prison or daily attendance at some centre such as I have described. Both those possibilities have obvious drawbacks and attracted understandable criticism, whereas this proposal for day detention was ignored. However, when a new clause was debated in Standing Committee F on the Bill in the House of Commons in the last Parliament it received a sympathetic reception from Mr. David Mellor, who was a Minister in the Home Office. He said that the proposal was premature but he went on to say that he hoped the day might dawn when the House could come back to it. He hoped that such a time might arise in the future. That was before the prison population had risen to the even more astronomic heights of more than 51,000 as it did last summer.

In New Zealand this form of punishment was described as a much-needed innovation. At a time when the situation here at home cries out for innovative ideas to reduce resort to imprisonment who can claim that such an idea is premature now? I beg to move.

Baroness Ewart-Biggs

My Lords, I should like strongly to support the noble Lord, Lord Hunt. I agree with him that it is most unfortunate that this extremely important amendment has come up so late this evening and that there are not very many noble Lords here to listen to the arguments. It represents a valid non-custodial measure for dealing with offenders in a certain category. As the noble Lord made clear, a similar system has been tried out successfully in New Zealand and therefore we have an example to go by. It also has the virtue of having had the support of the All Party Penal Affairs Group.

Earlier this year the Minister of State, David Mellor, gave it strong support. When speaking about it he said: Our minds are not closed on the matter. Most changes to sentencing come about not because of the will of the Government, but by a climate being up among interested organisations which believe that the time has come for a specific idea. Clearly, 1984 was not the right time for intermittent custody. Nor is it right for it to be introduced now. However, such a time might arise in the future". As the noble Lord, Lord Hunt, said, that time may well have arrived now. I shall be very interested to hear what arguments the Minister could have against this amendment.

The Earl of Caithness

My Lords, I was very surprised at how the noble Lord, Lord Hunt, and the noble Baroness, Lady Ewart-Biggs, started off their speeches. At the Committee stage, the same amendment was tabled. It was to be discussed at a much earlier hour. It was the same with Amendment No. 127, which the noble Lord, Lord Hutchinson of Lullington, has moved and spoken to.

Lord Hunt

My Lords, with great respect, I did not move the amendment. I was not in your Lordships' House when it came up.

The Earl of Caithness

My Lords, that is exactly what I have said. It was there at Committee stage to be discussed, but no noble Lord moved the amendment. It was identical to this.

The Government were extremely interested in the idea of periodic or intermittent custody, which was being floated by the Magistrates' Association among others several years ago. As a contribution to debate, we published in 1984 a consultative paper which described some of the models which had been proposed, explored their implications and invited views. The response was very mixed. Some, notably the Magistrates' Association, remained enthusiastic. But many of those who commented feared that intermittent custody would not be used instead of full custody, and would instead displace non-custodial measures. For that reason they were apprehensive about change on these lines, and on reflection we shared their apprehensions.

It is perhaps significant that there were widely different views about what would be involved. The new clause illustrates that very clearly. The Magistrates' Association had in mind something that would involve an overnight stay, perhaps confined to the weekends. But the new clause seems to me to envisage something much closer to the existing day centres run by the probation service (but in this case run by the Home Office) with a maximum of eight hours attendance each day and no overnight stay. There is a huge difference between a sentence that involves an overnight stay and one that does not, both in terms of impact on the offender and of likely use by sentencers.

On the general issue, our conclusion, having considered very carefully the responses to our consultative paper, was that there was not sufficient common ground about the need for a new sentence of intermittent custody or the form it might take to justify going ahead. I suspect the same would apply to day detention as proposed in this new clause. However, I would say, as my honourable friend said in another place at an earlier stage, that our minds are not irrevocably closed on this matter. It may be that the idea will find its time. But our present disposition is against pursuing any of the proposals which have been made for intermittent custody, and I could not support the noble Lord's proposal today.

Lord Hunt

My Lords, I can only express myself as extremely disappointed by the response of the noble Earl. Over the period of the consideration of this Bill in Committee and on Report, quite a number of us—and not all from this side of the House—have seen this Bill as an opportunity to offer amendments which would be conducive to reducing the use of imprisonment and to reducing the length of prison sentences, neither of which needs any argument in its favour by me.

By my count, something like six such amendments were offered during this Report stage in Part V of the Bill, something like three in Part IX, and as many again on Committee. They have all been resisted by the Government, and I can only say that this is missing an important opportunity.

The Earl of Caithness

My Lords, I wonder whether the noble Lord was here when I accepted the amendment moved by the noble Lord, Lord Harris of Greenwich.

Lord Hunt

My Lords, I still maintain that an important opportunity is being missed to use this Bill as a vehicle for doing something to our penal system which it badly needs. It merely means that the Bill will go to another place without those opportunities having been taken. At this time, late in the evening, there is no point in testing the opinion of the House, and on a note of regret I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 134 [Anonymity in rape etc. cases]:

The Earl of Caithness moved Amendment No. 132:

Page 96, line 8, at end insert— ("(6) In section 7(2), in the definition of "a rape offence", for the words "and incitement to rape" there shall be substituted the words, "incitement to rape, conspiracy to rape and burglary with intent to rape".").

The noble Earl said: My Lords, during the Committee debate on this clause the noble Lord, Lord Meston, drew attention to the fact that conspiracy to rape and burglary with intent to rape were not included in the definition of rape in the Sexual Offences (Amendment) Act 1976, and so the victims of these offences were not automatically covered by the anonymity provisions. This amendment puts right that anomaly. I beg to move.

On Question, amendment agreed to.

10.45 p.m.

Clause 135 [Judicial review of orders under ss.4 and 11 of the Contempt of Court Act 1981 relating to trials on indictment]:

Lord Irvine of Lairg moved Amendment No. 133:

Page 96, line 12, leave out from second ("to") to end of line 14 and insert— ("review judicially

1. (i) an order made under section 4 or section 11 of the Contempt of Court Act 1981;
2. (ii) any order restricting the access of the public to the proceedings or part of the proceedings;
3. (iii) any order restricting the publication of any report of the proceedings or part of the proceedings.")

The noble Lord said: My Lords, Clause 135 of the Bill would insert after Section 29(3) of the Supreme Court Act 1981 a new subsection (3A) as follows: The High Court shall also have power in relation to a trial on indictment to make an order of certiorari with respect to an order under section 4 or 1 of the Contempt of Court Act 1981".

These orders relate to the reporting of court proceedings. They have nothing to do with the powers of courts to sit in camera. The effect of the amendment which I move would be to take away from the proposed new subsection (3A) the words, make an order of certiorari with respect to an order under section 4 or I of the Contempt of Court Act 1981", and replace them with the words, review judicially

1. (i) an order made under section 4 or section 11 of the Contempt of Court Act 1981;
2. (ii) any order restricting the access of the public to the proceedings or part of the proceedings;
3. (iii) any order restricting the publication of any report of the proceedings or part of the proceedings".

Lest it is not understood why I have included sub-paragraph (iii), it is included lest the courts hold that there is a common law power to restrict publication of court proceedings which survives these specific provisions of the 1981 Contempt of Court Act.

When Clause 135 was introduced into the Bill at Committee stage I ventured to say that it was very much in the right direction, but by this amendment I am seeking to carry the right principle through to its logical conclusion. The Minister was good enough on that occasion to indicate that the Government would give the matter further thought. Since the Committee stage I have heard most usefully and helpfully from the noble and learned Lord the Lord Chancellor in correspondence on the subject. I respect the concerns which lie behind the Government's hesitation about this amendment and I hope in a few short remarks this evening to allay those concerns.

This clause concerns open justice in the Crown Court. Section 29(3) of the Supreme Court Act 1981 says that matters relating to a trial on indictment (that is, Crown Court trials) shall be excluded from the scope of judicial review. In other words, it is no use going off to the Divisional Court and complaining that the judge's decision was irrational or that he did not observe the principles of natural justice. The only remedy under the present state of the law is for the defendant, if convicted, to appeal to the Court of Appeal on the ground that his conviction was unsafe and unsatisfactory.

The judges have certain powers at common law and under statute to restrict the application of the normal basic principle that justice must not only be done but must also be seen to be done. The judges can restrict public access to the proceedings and they can restrict reporting of the proceedings. It is very proper that these powers should exist. However, they represent a derogation from open justice, and it is essential that their exercise be subject to some measure of control.

An appeal by a convicted defendant is not of much help because a decision to proceed in camera will not lead to a miscarriage of justice. It is the wider public interest in open justice which has to be protected. The only way to achieve that is to extend the scope of judicial review to embrace these matters.

In this view I am not alone. The European Commission of Human Rights agrees. It considers that our existing law does not match up to our international obligations. The Government agree too; hence Clause 135. But Clause 135 does not go far enough. First, it extends only to orders made under Section 4 or Section 1 of the Contempt of Court Act 1981. Those sections relate to reporting of proceedings. But what if the judge decides to sit in camera? That is a much more draconian power than merely restricting reporting. However, there is no provision for the exercise of that power to be reviewed, hence paragraph (ii) of my amendment. Unless we make such a provision, I fear that we shall almost certainly still be in breach of the European Convention on Human Rights. It cannot be right that the further the judge goes in his order the more far reaching it is and the less open to challenge that order becomes.

I know that the Government take the point and see the force of it. What they fear—it has been well expressed to me in the letter I received from the noble and learned Lord the Lord Chancellor—is that in some cases the prosecution will hold evidence to be so sensitive (perhaps on the grounds of national security) that it would rather proceed without that evidence at all than risk it becoming public. An example would be this. Suppose an order to sit in camera is obtained, the prosecution could still not be confident that the information would not be revealed later following a successful application for judicial review. My answer to that is that there would be no problem. Cases of such acute sensitivity are very rare, and it will often be agreed on all sides that they should be heard in camera. If that sensible course is followed, there is an end of the matter.

Therefore, the problem can arise only in a minority of what is in itself a tiny minority of cases. In those cases, I suggest that it could legitimately be required that any application for judicial review should be made and heard virtually forthwith, and the trial could be adjourned for a short time pending the expedited determination of any such application. I concede that that would cause a little disruption and a little delay, but in so few cases that it would be a small price to pay for the general vindication of an important principle.

The second point is that, as it stands, Clause 135 allows an applicant only to seek certiorari—that means the quashing of the offending decision—but not any of the other familiar forms of release. That is rather bizarre. For example, if a representative of a local newspaper were to come and complain of a regular practice at the local Crown Court which was said to be unlawful, I should not advise seeking an order quashing a particular decision. I should advise that the appropriate remedy was a declaration that the practice was unlawful. However, that remedy is not available under the provision as presently drafted. Likewise, one might want an order of prohibition to prevent the court sitting in camera, or an order of mandamus to compel it to disclose the name of a particular witness. This is achieved by the use of the words "review judicially" in the amendment.

I understand from the letter to which I have referred that the Government are concerned that proceedings might be disrupted if a witness were to seek a mandamus requiring the judge to conceal his identity. With respect, I invite the Government to think again about this concern because it appears to me that there is probably an error that lies behind it. Clause 135, with or without the amendment that I am moving, only permits a positive order limiting access of the public or reporting to be reviewed. It does not catch a refusal to make such an order. That would remain unreviewable. Therefore, the concern which has been expressed to me is not, I respectfully suggest, soundly based. I think the fact that the amendment does not catch the refusal to make such an order is clear on the language of the amendment that I am moving, but if it were thought to be not absolutely clear, it would not be difficult to find words which would make it even clearer should it be thought necessary.

Finally, and briefly at this hour, I stress that in order for this section to work properly it is absolutely vital that there should be some expedited procedure for dealing with judicial review applications in this kind of case. That applies as much to the clause in its present form as to the clause in its wider form, if the amendment I move or some variant of it in due course were to find favour with the Government. I understand that the Government concur in principle but are willing to make do with informal arrangements. With great respect, I suggest that it would be much better to make formal provision by way of rules of court and I hope that that too will be considered.

In his letter the noble and learned Lord the Lord Chancellor was good enough to say that he is considering all these matters but that they are difficult points on which he will need to consult colleagues and the judiciary. I hope that the observations that I have made at this late hour may prove to be of a little assistance. Meanwhile, I commend this amendment to the House as an effective means of upholding the principle of open justice.

The Earl of Caithness

My Lords, as the noble Lord says, these questions require further careful consideration, which makes it impossible for me to accept the amendment today. Indeed, it will not be possible for the Government to reach a conclusion on this difficult issue before this Bill has passed through your Lordships' House. As the noble Lord said, my noble and learned friend the Lord Chancellor has written to him canvassing most of the points that I shall make. My noble and learned friend will doubtless consider what the noble Lord has said and in due course will probably receive a letter from him reinforcing the arguments that he has given to the House tonight.

The most important aspect of the noble Lord's amendment is that it seeks to make a decision of a Crown Court judge to sit in camera subject to judicial review. In addressing this issue of course I accept the importance of the public's right of access to Crown Court trials, but on this point that principle is in conflict with others of equal importance.

Trials in the Crown Court must reach their conclusion as quickly as possible because society has an interest in seeing punishment given to criminals; and, more important still, any innocent man accused of a crime has the right to his liberty and the removal of the stigma and worry caused by that accusation. Therefore, Crown Court trials cannot be interrupted, whatever decisions of their presiding judge may be open to review. But let us consider the position of the prosecutor, if a judge's decision to sit in camera is subject to review.

The prosecution may consider that information to be revealed in the conduct of a case is so sensitive that it would prefer not to prosecute rather than make it public. It may, for example, identify (and so, endanger) an undercover police officer. The prosecution would not be freed from the risk that the proceedings might become public until after any review of the decision to sit in camera had been completed. As the question of the mode of trial may have been important in deciding whether to proceed or not, the prosecutor could find himself in an impossible position.

The possible review of decisions to sit in camera merits full consideration, which it will receive, but I urge most strongly against imposing such a review procedure upon the Crown Courts before those deliberations can be completed.

I turn now to the two other aspects of this amendment. First, it seeks to make available the whole range of judicial review powers. With respect to the noble Lord, this would serve no useful purpose, and may even work to restrict the publication of reports of proceedings. The intention is that it should be possible to set aside an order restricting publication, and this will be achieved by certiorari. The remedy of mandamus—to which, as the House will recall, the noble Lord specifically referred when this matter was mentioned in Committee and again this evening—has the effect of requiring a tribunal or court to make an order. Only witnesses or parties to proceedings who wish to keep certain details out of the public realm would seek to use this remedy and their interests are already adequately protected by the trial judge.

For these reasons, I hope that the noble Lord will not press his amendment tonight. But he can rest assured that my noble and learned friend will look very carefully at what he has said in the course of his further consideration of this important subject.

Lord Irvine of Lairg

My Lords, on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 141 [Northern Ireland]:

11 p.m.

The Earl of Caithness moved Amendment No. 134: Page 99, line 15, leave out ("31") and insert ("[Abolition of requirement of corroboration for unsworn evidence of children]")

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 32. I beg to move.

On Question, amendment agreed to.

Schedule 12 [Minor and consequential amendments]:

The Earl of Caithness moved Amendment No. 134A:

Page 144, line 37, at end insert— ("14A. In subsection (6) of section 67 (computation of sentences) for "(1)" there shall be substituted "(1A)".")

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 113A. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 135: Page 146, line 44, leave out from ("1985";") to end of line 48.

The noble Earl said: My Lords, this amendment takes into account a point made by the noble and learned Lord, Lord Ackner, which on reflection we considered appropriate. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 136:

Page 147, line 4, at end insert— (""25A. The following paragraph shall be inserted after paragraph 1 of Schedule 2 (orders for retrial)— 1A. Subject to paragraph 1 above, evidence given orally at the original trial must be given orally at the retrial."")

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.

On Question, amendment agreed to.

Lord Harris of Greenwich moved Amendment No. 137:

Page 148, line 36, at end insert— ("37A. In section 20(A) of that Act (offences) after the word "excusal" there shall be inserted the words "or deferral".")

The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 138: Page 149, line 19, at end insert—

("Judicature (Northern Ireland) Act 1978 (c. 23)

41A. In section 49(6) of the Judicature (Northern Ireland) Act 1978 (variation of sentences) after the word "appeal)" there shall be inserted the words "and for the purposes of paragraph 2 of Schedule 3 to the Criminal Justice Act 1988 (time limit for notice of an application for leave to refer a case under section 33 of that Act)".")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 34. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 139:

Page 151, line 50 at end insert— ("57A.—(1) In section 44(1) (constitution of Court of Appeal on appeals or references), after the word "Act" there shall be inserted the words "or section 33 of the Criminal Justice Act 1988". (2) In section 44(4)(b) (judge of the Court of Appeal not to hear or determine applications relating to reference under section 14 or 15 where he was the trial judge), after the word "Act" there shall be inserted the words "or section 33 of the Criminal Justice Act I988".")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 34. I beg to move.

On Question, amendment agreed to.

Schedule 13 [Repeals]:

The Earl of Caithness moved Amendment No. 140:

Page 154, line 19, column 3, at end insert—

("in section 38(1), the proviso.")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 32. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 141:

Page 154, line 27, at end insert—

1952 c. 61.	Prisons (Scotland) Act 1952.	In section 31(1), paragraph (b).
		In section 31(3) the words "detention centre".
		In section 31(4) the words "detention centres" wherever they occur.
		In section 34 the words "or a detention centre".
		In section 35(1) the words "detention centres".
		In section 37(1) the words "or detention centre".
		In section 37(2) the words "or detention centre" wherever they occur.")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 109. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 142:

Page 154, line 27 at end insert—

("9 and 10 Eliz. 2 c.39.

Criminal Justice Act 1961.

Section 2.")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 110. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 143:

Page 154, line 47, column 3, at end insert—

("Section 22(5).")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 109A. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 144:

Page 154, line 51, at end insert—

("1971 c. 40.

Fire Precautions Act 1971.

In section 40(2)(b) the words "detention centre".")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 109. I beg to move.

On Question, amendment agreed to.

Viscount Brentford moved Amendment No. 145: Page 155, line 15, leave out ("paragraph 1(4),")

The noble Viscount said: My Lords, I beg to move. On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 146: Page 156, line 34, column 3, leave out ("(1)")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 109. I beg to move.

On Question, amendment agreed to.

Clause 144 [Commencement]:

The Earl of Caithness moved Amendment No. 147: Page 101, line 5, at end insert ("section 121;")

The noble Earl said: My Lords, Amendment No. 147 brings the stop and search powers in Clause 121 into effect two months after Royal Assent; that is, at the same time as the new offence provisions in Clause 120. I beg to move.

On Question, amendment agreed to.

Clause 145 [Extent]:

The Earl of Caithness moved Amendment No. 147A:

Page 101, line 25, at end insert— ("section [Causing death by reckless driving—increased minimum disqualification period]").

The noble Earl said: My Lords, this amendment seeks to extend to Scotland the new clause which was inserted by the amendment of the noble Lord, Lord Monson, to increase the minimum period of disqualification for causing death by reckless driving from one to two years. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Lord Ampthill)

My Lords, Amendment No. 148A should have been printed before Amendment No. 148. If Amendment No. 148A is agreed to I cannot call Amendment No. 148.

The Earl of Caithness moved Amendment No. 148A: Page 101, line 32, at end insert ("sections 122 and 123;")

The noble Earl said: My Lords, I beg to move the amendment.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, I cannot call Amendment No. 148.

[Amendment No. 148 not moved.]

The Earl of Caithness moved Amendment No. 149:

Page 101, line 37, at end insert—

("Part IV (including Schedule 3)")

The noble Earl said: My Lords, this amendment is consequential on Amendment No. 34. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 150. Page 102, line 15, at end insert ("section [Detention of Young Offenders in Scotland]")

The noble Earl said: My Lords, this amendment is consequential on Amendment No. 109. I beg to move.

On Question, amendment agreed to.

House adjourned at six minutes past eleven o'clock.