§ 3 p.m.
Earl FerrersMy Lords, I beg to move that this Bill be now read a second time. The Bill is a major and important piece of legislation. It is also a fairly formidable document. It runs to 152 clauses and 11 schedules and covers a variety of different subjects. Your Lordships will be relieved to know that I do not propose to summarise all its provisions. I shall contain myself, and refer to some of the main themes.
One starts from the premise that crime is bad; it is an offence to society, and it ruins people's lives. But it is created by people—and people are responsible for what they do. No one has to carry out crime. No one has to ruin the lives of others—and, if people do, the responsibility for doing so is theirs, and theirs alone. Protecting the public is an essential responsibility of government. The Government are determined to deal with those who create crime and to protect the ordinary citizen.
Some of what we propose is controversial. I make no apology for that fact; it is inevitable when one alters the state of the law. In the Bill we are responding to concerns widely felt throughout the country. These, put simply, are that the balance of justice needs to be tilted slightly more in favour of the offended and slightly less in favour of the offender. It will not have escaped your Lordships' attention that the Bill has been subjected to the rigorous scrutiny of another place. It received overwhelming approval, with a majority of no less than 176 at Third Reading—and no guillotine.
Some of the proposals were announced in Her Majesty's gracious Speech; some respond to recommendations made by the Royal Commission on Criminal Justice, which sat under the distinguished chairmanship of the noble Viscount, Lord Runciman; and some were added in another place. The Association of Chief Police Officers, the Superintendents' Association and the Police Federation have enthusiastically welcomed the Bill. The Police Federation has said that the Bill will enhance the ability of the criminal justice system to reduce crime; will help to bring criminals to justice; will reduce the fear of crime; and will thereby improve the quality of life for many people in society.
The Bill begins with the problem of juvenile crime and in particular with the problem caused by persistent 381 young offenders. It is a fact—a fact frequently drawn to my attention when I visit police forces throughout the country —that a large number of crimes are in many cases committed by a very small number of offenders, many of whom are juveniles. There are reports of a 14 year-old from Tyneside who has 28 convictions and who has escaped 22 times from local authority accommodation. Another 14 year-old boy in south London has admitted taking part in more than 1,000 burglaries of shops and homes in the past two years. On a single night he, and other teenagers, raided 23 branches of one particular store. He has stolen over 100 cars to ferry himself between burglaries, and the total value of all the goods stolen and the cost of damage caused is estimated to be in the region of £2 million. He has been arrested 40 times but is too young to be given a custodial sentence for the crimes he has committed. That is pretty hot stuff.
These are examples of youngsters who have committed dozens of offences, and who have had cautions, discharges, supervision orders and local authority care; in fact, the lot. Yet they are still out there putting people's lives at risk and making people's lives a misery. I suggest that Parliament has a right, and, indeed, a duty, to protect the public from persistent offenders.
Cautioning has worked well with many juveniles. It is frequently an adequate response to keep the majority of juveniles out of further trouble. Community penalties also have a crucial role to play in tackling offending behaviour by young people. But despite the success of many of those methods of dealing with young offenders, they have not always worked on all people. There is considerable public concern about a small minority of youngsters. I share that concern. This small hard core of young juveniles commit crime after crime; they cock a snook at the law, at the courts and at society; they commit a disproportionate number of crimes, often including burglary and the theft of vehicles; and they wreck the community for everyone else and destroy the lives of other youngsters by leading them into criminal ways. Moreover, too often, they get away with it—sometimes laughing at the courts, the victims and the police in the process. Parliament cannot disregard that.
No one likes putting youngsters in secure premises. Of course not. But where they have been offered the opportunity to respond to other measures, including supervision orders—and have rejected them—and when they continue to offend against the community and to ruin the lives of others, it is in everyone's interests that they should be removed for a while. At least efforts can then be made to get the youngster back on to the right track, and at least the rest of society can be given a respite from the persistent plundering of the wayward youth.
The powers of the courts to order the detention of juveniles are at present very limited. Detention in a young offender institution is available only for youngsters over 15 years of age. But there is a significant gap which needs to be filled in order to deal with young people who now so often do the offending. The Bill therefore gives the courts a new power to make a secure training order for 12, 13 and 14 year-olds who 382 persistently offend. But strict criteria will have to be met before an order can be made. The offence before the court must be sufficiently serious to be able to attract a custodial sentence. In every case, the young offender will have been convicted of three imprisonable offences and, in every case, he will have to have breached a previous supervision order. It is not the intention that custody should be the immediate response to offending behaviour.
The young offender who is sent to a secure training centre will almost certainly have been cautioned, and will have failed to respond to it. He will also have had a community sentence, and will have failed to respond to that. The secure training centres will be for young offenders who have failed, not once but consistently, to respond to other forms of remedial help. The secure training order will have a minimum length of six months and a maximum length of two years. Half of the time will be spent in a secure training centre; the other half will consist of supervision in the community.
The Government's view is that the necessary provision for this purpose should be made by central government—either directly, or, as we propose, through the involvement of the private sector. We considered the alternative of expanding the stock of local authority accommodation, a proposal which, I know, attracts some people. But most local authority units are relatively small—often only eight to 16 places. The regime and activities available in those circumstances are, therefore, necessarily limited. In contrast, the secure training centres will be larger regional units with about 40 youngsters in each. That kind of size will allow a much broader range of facilities and programmes to be developed so that an individual training plan can be drawn up for each youngster. That will be an important part of the secure training order sentence. When the young offenders come to leave their secure training centres, we intend that they should have benefited and learnt from their time there. At the very least, their detention in the secure training centres will have given their local communities some respite from their unacceptable and intolerable behaviour.
The Bill makes two other important changes in the sentencing of juveniles. It raises the maximum sentence of detention in a young offender institution for 15, 16 and 17 year-olds to two years, and it widens the range of serious offences for which long terms of detention will be available. The Bill also extends to 12, 13 and 14 year-olds the existing powers of the courts to order secure remands for 15 and 16 year-olds. The proposals in the Bill on juvenile offenders represent a considerable strengthening of the courts' powers. They enable the courts to be better able to deal with the small hard core of young criminals.
The Bill also addresses public concerns about the use of bail. There are too many cases in which people who are accused of a serious offence offend again—sometimes repeatedly—immediately after being released on bail. It has been estimated that some 50,000 offences are committed each year by people who are on bail. This means 50,000 unnecessary crimes, with all the grief and personal misery which they bring, committed 383 each year by people who are already charged with having committed another offence. That is something we can tackle. And it is something we should tackle.
There is at present a presumption in favour of bail, even for those who have been accused of offending while on bail. The Bill will change that. It will also allow the police to grant bail with conditions, as the Royal Commission recommended, thereby avoiding the need for a person to be brought before a court for the purpose.
The Bill changes too the law concerning what is usually called the "right of silence". It introduces, for England and Wales, provisions modelled on those which have been in place in Northern Ireland since 1988. In doing this we are implementing the recommendations made by the Criminal Law Revision Committee way back in 1972. Despite the eminence of that committee's membership, the report was controversial for many years. But in Northern Ireland it has worked well and without difficulty for the past five years. Our proposals have the unequivocal support of all the police associations, and a majority of the judges who gave evidence to the Royal Commission indicated that they would favour a change.
The Bill would allow a court or a jury, in carefully defined circumstances, to draw such inference as they think fit from the failure of a suspect to answer police questions, or from his failure to give evidence in court. This is an important change. At present, the trial judge has to warn the jury not to assume that because a person has refused to answer questions, or because he has refused to give evidence, that implies he is guilty. An amendment was made to Clause 33 in another place which effected a minor change of procedure. The Bill will also change the Northern Ireland order in this respect. The Bill does not, though, compel anyone to answer questions or to give evidence.
There is also no question of convicting anyone on the basis of silence alone. The effect of the proposals in the Bill is simply that those who remain silent would no longer be specially protected—as they are at present—from any inferences which common sense may suggest might be drawn from that silence. The present rules are too easily exploited by experienced offenders—including terrorists —to their own advantage. That is something which most people would deplore.
The Bill also gives the police a number of new powers designed to help them to meet the complexities of modern-day policing. The police will be allowed to take and store DNA samples in connection with a much wider range of offences than they can at present. In time a national database will be built up which should be a great asset in the investigation of crime. The Bill broadly follows the Royal Commission's recommendations on the matter.
The police will also be given new "stop and search" powers which are aimed against terrorism. They are expressed in the Bill as additions to the Prevention of Terrorism (Temporary Provisions) Act and will therefore be subject to annual scrutiny and to annual renewal by Parliament.
384 A new clause, inserted into the Bill in another place, gives the police new powers to search for offensive weapons when the police anticipate that violence may occur. This is now Clause 55. The present powers of the police can only be exercised when a constable has a "reasonable suspicion" that a particular individual is carrying an offensive weapon or another prohibited article. This, of course, is the right test for ordinary circumstances but it does seriously inhibit effective preventive action being taken by the police when they believe that violence is likely to break out, for example between groups of people. That is why we think a wider power is needed for this sort of occasion—and another place agreed. What is at stake here is the lives of members of the public and of police officers.
The Bill imposes strict limitations on the use of the new power. It can only be used when a senior officer has reason to believe that incidents involving serious violence may take place, and it can then only be used in a limited area and for a limited length of time—up to 24 hours.
The Bill also gives the police and local authorities new powers, and creates new offences, to tackle the destruction and distress which are caused mainly to rural communities by trespassers. The damage caused with impunity at Castlemorton in 1992 demonstrated only too clearly a serious problem which had to be addressed. The Bill therefore strengthens the provisions of Section 39 of the Public Order Act 1986, which gives the police powers to act against trespassers who take up residence on land and where, either because of the sheer weight of numbers involved or because of their behaviour, it is right that the criminal law should be invoked.
Section 39 will be extended to apply in a wider range of circumstances—principally by extending it to minor highways—and by reducing from 12 to six the number of vehicles which are required before the provisions of Section 39 can be used. The police will also be given new powers to seize and to remove vehicles if trespassers refuse to comply with a direction to leave land.
The police will have new powers to deal with unlicensed night-time parties, which, in the general jargon of the day, are described as "raves". These have caused appalling misery to local residents where the peaceful lives of rural societies have suddenly been ripped apart by the all-pervasive sound of what is sometimes delicately described as "music", the noise of which travels for miles, affecting everyone in its path —both man and beast—and from which it is impossible to escape. It can be a modern-day torture for the unwilling and the unwitting.
The new powers will enable the police to prevent a build-up of large numbers of people on land where the police reasonably believe that a rave will take place which will result in the local community suffering serious distress on account of amplified music played during the night. The police will also be given powers to seize amplification equipment so as to stop an illegal rave which is already in progress.
The Bill includes measures to tackle the disturbance which can be caused by large gatherings of trespassers. 385 As with raves, we wish to enable the police to prevent a potentially disruptive assembly rather than leave them to tackle it once it has gathered. The Bill therefore provides a power to prohibit large gatherings of trespassers in the open air which are likely to cause serious disruption to the life of the community or which are likely to result in significant damage to sites of special importance.
The Bill provides new police powers to deal with those who seek to disrupt the lawful activities of others. This is becoming a particularly serious problem, often leading to violence. Those who dislike the activities of other people have a perfect right to campaign against them. But they do not have the right to trespass, to threaten or to intimidate. The Bill introduces a criminal offence of aggravated trespass, and it will give the police powers to direct trespassers to leave land if they have reason to believe that the trespassers will seek to disrupt or to prevent a lawful activity.
Part V of the Bill contains measures for local authorities to tackle illegal camping. There will be a new power for all local authorities to direct unauthorised campers to leave land. If the campers do not leave, magistrates' courts will be able to authorise local authorities to take the necessary steps to remove the campers, their vehicles and their belongings. A nomadic way of life is a way of life which people have every right to choose, but it is necessary to recognise the considerable distress which unauthorised camping can bring to local communities.
Part VII of the Bill seeks to strengthen the controls against pornography. It provides, for the first time, a power of immediate arrest of those who are suspected of trading in obscene material and in child pornography, and it increases the present powers of search and seizure. The possession of child pornography will, for the first time, attract a sentence of up to six months' imprisonment. The Bill will also ensure that the law catches those who create indecent images of children through the use of computers.
Great concern was expressed in another place about the effect which violent videos can have upon children and the relative ease with which they are available to children. An amendment was considered which the Government were unable to accept because its effect would have been to ban the supply, even to adults, of all videos which are unsuitable for viewing by children. The Bill already contained important measures to assist in the enforcement of the current legislation. But the Government also share the concerns underlying the amendment moved in another place and we propose to take further action to improve the control and the regulation of such material. We intend to bring amendments before your Lordships to deal with the issue.
The Bill widens and improves the powers to contract-out the provision of prisons, prisoner escorts and some prison services in England and Wales, and it allows, for the first time, the contracting-out of prisons and prisoner escorting in Scotland and of prisoner escorting in Northern Ireland.
The Bill also gives to organisations which represent prison officers and prison governors the status in law of 386 trade unions. It gives to the staff concerned the same employment rights as have other Crown servants and it provides for the establishment of new pay determination procedures. However, the Bill also puts beyond doubt that it is unlawful to incite prison officers to withhold their services or to commit a breach of discipline.
Part XI of the Bill contains a number of miscellaneous but important provisions. Prison officers and staff are given new powers to search for drugs and weapons. Penalties are raised for the possession of Class B and C drugs. Those have not been raised since 1977 and have become out of kilter with the fines for other offences. The police are given the power of immediate arrest of those who publish or distribute racially inflammatory material; and we hope to bring forward an amendment to give tougher penalties for persistent harassment.
The Bill also contains provisions which were added to the Bill following free votes in another place. The use of human embryos or foetuses for the purpose of providing fertility services is made an offence; and the minimum age for homosexual acts is lowered from 21 to 18.
The measures which the Bill contains cover a wide spectrum of our national life. We want to see the police properly equipped to tackle crime. We want the courts to have sufficient and appropriate powers. We want to see crime reduced. We want to see the criminal properly dealt with, and we want to see the life of the ordinary person better protected from the anxiety and the misery which are so often caused by crime. This Bill will help to achieve those objectives, and I commend it to your Lordships.
Moved, That the Bill be now read a second time.—(Earl Ferrers.)
§ 3.21 p.m.
§ Lord McIntosh of HaringeyMy Lords, the House will be grateful as always to the Minister for his lucid explanation of as many of the provisions of the Bill as he could reasonably be expected to refer to. We forgive him for his omissions because it is clear that it would not be possible to refer to the wide range of subjects covered by the Bill. I hope to follow his example.
We object to the Bill for two reasons: that it is what it is; and that it is not what it is not. Let me deal first with why we object to it on the ground that it is not what it is not. What we had expected from a criminal justice Bill and what was urgently required from the Government was a legislative response to the Royal Commission report. In a debate in October of last year the noble Viscount, Lord Runciman, made a remarkable maiden speech. Virtually all who took part in the debate agreed, first, that it was necessary for the Government urgently to take action to deal with the problem of miscarriages of justice which had given rise to the setting up of the Royal Commission in the first place. Secondly, virtually everyone agreed that it had to be done in a coherent and comprehensive way rather than by picking out bits and pieces of the Royal Commission report —I believe the current jargon for that is "cherry picking"; I do not know what that means—and choosing the bits that the Government like without 387 recognising the necessity for a coherent approach. Unfortunately the Government have picked out bits of the Royal Commission report. They have done worse than seek to enact them. In the case of the right to silence they seek to go against the Royal Commission's firm recommendation. Yet there is no reference in the Bill to the fundamental recommendation of the Royal Commission that in criminal cases there should be a review authority.
My thoughts about the criminal cases review authority have been considerably changed by the discussion document which the Home Office issued this month. In a non-partisan spirit, I wish to congratulate and thank the Government for the issue of that discussion document. In many cases it supports the view of the Royal Commission. In many other cases in which it is unable to support those views without further consultation, the document appears to be couched in the frame of a genuine discussion document. On the basis that it appears to be the Government's firm intention to introduce legislation—I hope that that means in the next Session, although I understand the limitation on the Government's ability to say so—and on the basis of the open-mindedness and fairness of the discussion document, I believe that we shall be able to support legislation when it arises. I believe that one of the fundamental criticisms of the Bill has thereby been postponed. I hope that I am not being naive. I hope that I do not expect too much. I seems to me that there has been a genuine response in that respect to the report of the Royal Commission.
I turn now to why we object to the Bill being what it is rather than what it is not. It is, in the jargon phrase, a Christmas tree. I believe that I understand that: everyone can add what they want to the Bill, and indeed many people have already done so. I fear that your Lordships will not be immune from that failing.
The Bill is not a coherent approach to the problem of crime, despite what the Minister said in moving the Second Reading. We have a ragbag of promises which were made to the Conservative Party Conference last year, a rejection of previously hard-acquired wisdom and understanding about how to deal with crime, a preference for punishment rather than for effective reform, and a wide mixture of misunderstandings of the nature of crime and of the causes of crime. In our view those have to be considered together if the very real problem of crime is to be tackled.
Let me take, first, the issue of young offenders referred to in Part I of the Bill. I commend the Government's 1990 White Paper which states:
For most offenders, imprisonment has to be justified in terms of public protection, denunciation and retribution. Otherwise it can be an expensive way of making bad people worse".That is a far cry from the claim of the Home Secretary last year that prison works. Prison works only in the most limited conceivable way: that while someone is in prison he is not capable of committing a crime outside prison. But that is no justification either for the existence of prison or for the extension of prison, which appears to be the Government's intention.388 That argument applies to all prisoners, but it applies with even greater force to young offenders. In a report published in February of this year, the Policy Studies Institute described young offenders in a way which your Lordships will recognise as being fair: that young offenders tend to have chaotic, disturbed, traumatised lives; that it is highly likely that they have been abused at some stage during their childhood; and that it is highly likely that they have been excluded from school. Yet on the basis of a very small number—I must emphasise the point —of chaotic, disturbed and traumatised children, the Government propose a totally new form of institution.
What is the evidence that there is a problem? How many children aged 10 to 14 actually come to court each year? The figure across the whole country is 2,800. What is the evidence about the recidivism of those who come to court and are confined? I rely on a Written Answer given by the Minister as recently as 27th March of this year. Of the 2,750 15 to 16 year-olds who were placed in custody, 83 per cent. were reconvicted. It is not a large problem. It is not an increasing problem. Juvenile crime has been decreasing during the 1980s, not increasing. Imprisonment, custodial sentences and increased custodial sentences are not the answer to the problem.
Indeed, the example which Ministers like to give of their secure training centres comes from the Lisnevin Centre in Northern Ireland. That centre has an 85 per cent. reconviction rate, quite apart from the horrors of the costs. We are talking about £30 million of capital expenditure and £30 million of running costs per year. That is £150,000 per child per annum in the secure training centres. It is not as though there was not an answer to the problem. Local authority provision at the moment is 290 places per year and it is already planned that there could be an increase of a further 175. There is no reason why those numbers should not be increased considerably, if there is shown to be a demand.
The great advantage of local authority centres and smaller centres is that they would be much more local and there would not be the same separation from contact with the family, which is the only realistic hope of child offenders getting better. I was most unimpressed by the Minister's argument that local authorities with eight to 16 places were too small compared with the 40 proposed. In practice, I suggest that the centres with 40 are likely to provide a wider range of criminal experience to be passed on to those who are sent to the centres.
Part II deals with bail and I have to pass over it fairly rapidly. The Minister rightly said that the Bail Act 1976 includes a presumption against custody; quite rightly so. Only 40 per cent. of those who are on bail in the end receive custodial sentences, so that a majority of those on bail have their only experience of prison as remand prisoners. They are crowding the prison system, to no conceivable effect or value. If they are on bail and do not receive custodial sentences, then the judgment of the court has been that the public does not need to be protected from them. How many cases are there where those who have been previously convicted of murder, manslaughter and rape obtain bail? Surely, this is not a 389 case for an automatic denial of bail; it should be a judicial decision rather than a decision made here and now in all cases by Parliament.
I turn to Part III and the right to silence. I ask the question which I asked at the beginning: why is it that this issue above all should be picked out from the matters considered by the Royal Commission? Why, when it has been picked out, should the considered advice, after much research and cogitation of the Royal Commission, be overturned in Part III?
The questions that we must ask ourselves about the right to silence are: does it offend against the presumption of innocence which is the basis of our law? Does it offend against the prohibition on self-incrimination? Does it offend against the European Convention on Human Rights, to which we have subscribed and which recognises those rights?
We have to ask ourselves whether such a right is likely to run the risk of convicting more of the innocent. Are the safeguards in the Police and Criminal Evidence Act 1984 adequate? If we consider the fact that only 31 per cent. of those accused ask for solicitors, only 25 per cent. actually see a solicitor and only 13 per cent. have legal advisers present when they are questioned in a police station, we must at least allow the possibility that PACE procedures have a good way to go before they are perfected. Finally, we must ask ourselves whether such a right is likely to convict more of the guilty.
All the evidence that has been produced to the Royal Commission and elsewhere is that the right to silence is much more important to those who are weak, vulnerable, perhaps mentally vulnerable; and it is more likely to be necessary for it to be available to them than it is to hardened criminals who may use it in an attempt to defeat the procedures of the law. Again, we must ask how many are concerned: 4 per cent. of those who are accused actually exercise the right to silence. Of that 4 per cent., a large proportion either plead guilty or are found guilty, leaving 1 per cent. or at most 2 per cent. of those who exercise the right to silence who are then found to be not guilty—that is on the assumption that they are wrongly found to be not guilty, which is not an assumption that I would wish to make.
We believe that the provisions here are wholly wrong. They are retrograde, they take away from the fundamental assumptions behind our criminal law which are necessary for justice and fair trials. We will wish to oppose them radically. There are particular ways in which I am sure amendments will be brought forward which may be considered fall-back amendments. I think that they are likely to achieve widespread support in your Lordships' House. It seems absurd that the right to silence should at any time include questioning outside the police station—perhaps on the scenic route to the police station in the back of the police car. It seems absurd that the right to silence should be abolished before information has been given to the accused on the right to legal advice and before an opportunity has been given to see a solicitor. It seems absurd that there should be no protection for the mentally vulnerable, no provision for the appropriate adult procedure which exists for the mentally vulnerable. When we consider those who have been wrongly convicted—Judith Ward, 390 Enghin Raghip and Stefan Kiszko—over and over again they are the mentally and physically vulnerable rather than hardened criminals.
Under those circumstances there will be strong opposition to this part of the Bill and I believe that particular elements of what the Government propose will find widespread opposition in the House.
I do not have time to deal with the question of intimate samples, although clearly it is right for the Government to seek powers to keep pace with scientific advance.
The other major issue with which I wish to deal is collective trespass or nuisance on land. There are two issues: first, the issue of legislation and in order to simplify it, we can call it the hunt saboteur legislation. It is extraordinary that the provisions are very thorough in dealing with the nuisance of a hunt saboteur but because it is not an offence to trespass inadvertently and then cause distress, there is no protection against the disruption which may be caused by the hunt itself. That seems to me at any rate—it is not a matter on which my party will wish to impose a Whip—to be a particularly one-sided piece of legislation.
On a much more important issue, there is the whole question of caravan sites. The Caravan Sites Act 1968 provided that local authorities could have the power to move campers on, provided they had taken the necessary steps to provide legal sites for gypsies. Why should the sites not also be for Irish travellers or New Age travellers? Only 38 per cent. of local authorities have been able to find such sites, but where they have done so—and I acknowledge the difficulties of finding legal sites—it has proved to be a boon and a successful piece of legislation. I suggest to the House that the way to proceed is not to abolish the provisions of the Caravan Sites Act, but instead to move on to strengthen those provisions and make sure that local authorities have the power to move campers on, but only if they take responsibility themselves for providing for nomadic people. There are not only legal reasons for that but also social reasons because they are people whose children need to be educated, they need to have access to social services, they do not need to be dragged into a static society but they should not be denied the opportunities which a static society can provide.
I must move on. It is clearly right for the child pornography laws to be updated to cover computer pictures. We shall look carefully at the amendments proposed to the Video Recordings Act and ascertain whether they overcome the difficulties which the Home Secretary originally anticipated in opposing the Alton amendments in another place.
I can pass over the embryology question fairly quickly. My noble friend Lord Haskel will deal with that later in the debate.
I want to say a word about Clause 137 on racial harassment. We support new Clause 13 moved by Mr. Alun Michael and new Clause 127 moved by Sir Ivan Lawrence. Yes, of course it is right that Section 19 of the Public Order Act should be extended. As we understand from the British Crime Survey, it is a fact that there have been 130,000 racially motivated incidents in the course of a year. Clearly something must be done to put a stop 391 to that. We need a new arrestable offence of harassment. We look forward to the government amendments that have been proposed. We should like the Government and the House to consider whether the augmented penalties which are used as a deterrent in 40 of the 50 United States would be appropriate for use here.
In paragraph 34 of Schedule 9, an abolition of the requirement for pre-sentence reports has been sneaked in. Pre-sentence reports have been in operation for only 18 months. They appear to have worked in the sense that they have reduced unnecessary custodial sentences. Prison sentences cost more than £25,000 a month; whereas probation orders and community service orders cost less than £100 a month. We suggest to the Government that it is wrong to abandon the question of pre-sentence reports in this cavalier way at the fag-end of a very long and complicated Bill.
I shall not refer in detail to the question of the age of homosexual consent. That matter will be subject to a free vote among my colleagues here, as it was in another place. I express my own support for the wise reduction, and indeed extension, in the age of consent put forward by another place. I support the proposals which will be described by my noble friend Lord Ponsonby of Shulbrede.
Finally, if we judge the Bill by the Government's own standards, we must conclude that it is a failure. This Bill does not tackle the most important issue of crime prevention in this country. It does not provide a statutory basis for collaboration between police and local authorities on crime prevention. It does not provide the increased resources and encouragement for local authority secure accommodation for juveniles to which I have already referred. It does not rationalise and extend the cautioning procedures, which have been successful. It restricts bail rather than providing for bail support and enforcement. It makes certain provisions in respect of drugs, but does not make funded provision for drug education. It does not deal with the problem of dangerous weapons being sent by mail order. It does not deal with many of the issues relating to the judiciary to which I simply do not have time to refer.
As has rightly been said, this is a complex Bill. The way in which the Government have put it forward is a grave disappointment. It is not the Bill about crime that it should be. As it proceeds through this House, we shall do our best to improve it in every way that we can.
§ 3.43 p.m.
§ Lord WigoderMy Lords, I join with the noble Lord, Lord McIntosh of Haringey, in thanking the noble Earl, Lord Ferrers, for his courteous and clear exposition of the Bill. Unfortunately, the clearer it was, the more apparent it became how objectionable some of the provisions were.
The Secretary of State has made two major speeches on this Bill. His first major speech was made before the Conservative Party Conference last year; his second was when he introduced the Bill at Second Reading in another place. I must say, having read those two speeches, that despite them we are dealing with a serious matter and one that is of grave concern to the 392 community as a whole. It is appropriate that this House should consider the contents of the Bill calmly, rationally and in a spirit that is very far removed from crude party politics. It should be considered also in a spirit that does not give undue or exaggerated weight to the opinions of the legal profession; it is a matter that concerns every single Member of this House.
Of course I cannot seek to cover the Bill as a whole. I do not seek to do so. I should like to comment on only two parts of it. The first is the part about young offenders, about which the noble Lord, Lord McIntosh, has already spoken. It is obviously a very serious matter and one that concerns us all. Yet at the same time it is not a matter that we should seek to exaggerate. Criminal statistics are, and are very liable to be, misleading. But the statistic that between 1980 and 1990 the number of juvenile offences declined by some 37 per cent. is a matter that cannot be explained as a mere statistical aberration. There still remains a serious problem in relation to juvenile crime. The noble Earl was right to draw attention to some of the individual instances of it when he moved the Bill a short while ago.
The causes of juvenile crime are complex and have been the subject of much rather indecisive research. However, I suspect that most of us would agree that the principal causes are not touched upon in any way in this Bill. I refer to the problems of broken homes; lack of parental control; the breakdown in school discipline; the decline in the influence of the Church; and the exposure of youngsters to gratuitous violence in the media and on videos. None of those matters was mentioned by the Government at any stage throughout this Bill until my colleague, Mr. Alton, ventured to press the matter in another place. As a result of his action we are later to hear about that aspect. There is the whole problem of the alienation from society of the younger generation—largely because they are brought up in conditions of semi-poverty and perhaps sometimes of semi-squalor; and very often with their father standing in a dole queue. Those are the real problems that we want to tackle if we are seriously to deal with the question of juvenile delinquency.
Instead, we are given as the answer in this Bill the idea of more custody. Let us in effect lock up as many young people as we can for as long a period as we can get away with. What a disastrous solution that is to propose! It flies in the face of the whole of our experience over the past 10 or 20 years. Time after time methods of keeping youngsters in custody have been proposed. There have been borstals, approved schools, detention centres; there was talk of the short, sharp shock. There were all those and many other variations on the same theme. Without exception they all gave rise to the result that within two years of release somewhere between 70 per cent. and 80 per cent. of the youngsters who were placed in custody in that way re-offended. I venture to think that the Government were right in their Green Paper in 1988 when they said that even a short period of custody is quite likely to confirm children as criminals—particularly if they acquire new criminal skills from more sophisticated offenders.
If putting youngsters into custody has failed in the past, why should it succeed now? I hope that the noble 393 and learned Lord, Lord Fraser, when he comes to reply to the debate, will remind us of the research that shows that the methods that are now proposed by the Government are likely to succeed, whereas over the past 10, 20 or 30 years similar methods have totally failed.
I have one other comment about the position of young offenders. It is suggested in Clauses 16 to 18 that perhaps some of them should be locked up for longer and longer periods. The Home Secretary appears to have discovered that if people are locked up, they cannot commit offences. I suppose that that is true, and will be true even when the prisons come to be entirely privatised. If people are locked up, they cannot commit further offences. It is neither a profound nor a constructive viewpoint. It leads logically to the view that if all prisoners were locked up for the whole of their lives, there would be no crime. It is not a very helpful suggestion to make. As for doubling the maximum sentences, as proposed in the Bill, the fact is that it is very rare for existing maximum sentences to be applied to juvenile offenders. Doubling them is very little more than an empty gesture.
I do not pretend that there is any easy solution to the problems of juvenile crime. I believe that we have to work to reduce the causes of juvenile crime slowly, steadily and consistently over the years. We should recognise, as the Government at present do not seem to recognise, that most delinquent juveniles grow up and grow out of their criminal ways, whether or not they have been sent in to custody during that time.
I believe that we have to devote our main efforts to working in the community and recovering those children for the community. I do not mean to say that we may not have to contemplate custody in some cases. But I believe that custody for juveniles should be contemplated with reluctance as a last resort and not, as I suspect that this Government are doing, with enthusiasm as a first choice.
My noble friend Lord Mar and Kellie will make his maiden speech on these issues, which I await with great interest. My noble friend Lord Henniker, too, has had much experience of dealing with juvenile offenders.
The other matter in this Bill that I propose to deal with is the right of silence. I know that it is a misnomer to talk about the Bill abolishing the right of silence, but we all know what it means when we say that. I do not think that there is a convenient phrase for getting round it. There are only two general observations that I want to make on the right of silence because my noble friend Lord Hutchinson of Lullington, who for many years was the doyen of the English Criminal Bar, will speak principally on that issue.
The first observation is that a criminal trial is by its nature an artificial process. It consists of the haphazard development over the years of what amounts to a whole series of checks and balances. If one alters one particular check or balance, it is impossible to say what the overall effect will be. The present position of our checks and balances is that we aim to achieve two objects. First, we aim to ensure that most guilty people are convicted. I believe that that is being done. If any support is needed for that statement it lies in the research which shows that, when interviewed on the subject, most of the 394 judges, particularly the High Court judges, who have experience of the more serious type of crimes, agree that most of the time the juries reach the right verdicts on the evidence. I do not believe that we need to trouble about that side of the matter. Secondly, it is and must be an object of our criminal justice system that almost all innocent people are acquitted—I say "almost all" because only the Almighty can ensure a system in which every innocent person is acquitted. But the fact is that it is not being done. Looking at the history of the past few years in particular, where a substantial number of convictions have been quashed, it is apparent that it is not being done.
I am not so naive as to believe that because an appellant has his appeal allowed in a court of criminal appeal, it proves that he is innocent. Of course not. But the fact is that among many of the cases where convictions have been quashed in the past few years, there have been a number where beyond peradventure—it is not a matter of something going wrong with the trial or inadmissible evidence of anything of that kind—a totally innocent person has been detained, brought to trial and convicted. In that situation I venture to suggest that this is a very strange time to start deliberately to tilt the balance in favour of the prosecution. It will have incalculable repercussions. It removes one of the cornerstones of what I described as our artificial system of trial and will almost inevitably lead to more innocent people being convicted. There is no other result possible.
I come to my other observation about the right of silence. I know that there will be strong support for the Government's proposals, particularly from many noble Lords opposite. I fully understand that there should be that support. There are many intelligent and articulate people who will say, and indeed convince themselves, that if they were accused of a serious crime, they would at once reveal the full details of the reasons why they were innocent to whoever was investigating the crime. They will say that it is a matter of common sense that any innocent person would do that and that if a person does not do so, it is because he is concealing something and the only thing that he could be concealing is guilt.
I venture to suggest that that is a fallacious and dangerous approach. It is dangerous for two reasons. First, the intelligent and articulate people who put forward that argument—we shall hear it many times in the course of our debates in your Lordships' House—are probably, almost certainly, people who have never been snatched up in the street or had their homes invaded by police officers who have knocked at their door in the early hours of the morning. They have never found themselves hustled off by car to strange and hostile surroundings in a police station to be interrogated by skilled police officers, perfectly properly but nevertheless firmly and terrifyingly. One ventures to wonder whether some at least of those intelligent and articulate people might find it just a little more difficult in those circumstances to tell police officers exactly where they were on such and such a day or exactly why it is, for some reason or other, that they are innocent of the 395 charge and exactly to whom the police can go to interview as witnesses. That is the first reason why I believe that it is a fallacious approach.
The second reason is that in our criminal courts we are not dealing by any means only with charming, intelligent and articulate people. We are dealing very largely with frightened, suspicious people who are often mentally retarded and often under the influence of drink or drugs. Some of them are members of ethnic minorities. We are dealing with people who, for good reason or bad, find themselves terrified when a police officer speaks to them. That raises wholly different issues about the likely conduct of people at police stations which makes it very different from that of those people who say that they would always tell the police straightaway exactly what happened about this, that and the other.
I suggest that there is room for very serious debate on this part of the Bill when we reach it in due course. It would be quite wrong to accept the precarious balance which now exists and which might lead to the conviction of more innocent people.
It is particularly appropriate that in a few moments, when I sit down, your Lordships will hear the maiden speech of the former Chief Justice of Northern Ireland, the noble and learned Lord, Lord Lowry. I hope that he will be able to satisfy me that it is only the perversity of the Irish that has led to the somewhat curious situation over the past four years in Northern Ireland. When the right of silence became limited in the way that is now proposed for England, the result was that a lower proportion of convictions was obtained both for terrorist and non-terrorist offences. Perhaps the sample was inadequate. I do not know. I must confess that it is a very odd result, having regard to the rest of the debate in which we shall all participate.
I have dealt with only two parts of the Bill out of 11. I know that my noble friends Lord Avebury and Lord Mayhew will raise other matters a little later in the debate. There are 152 clauses and 11 schedules with which I have not dealt. I can only hope that the 42 Members of your Lordships' House who are waiting to speak will forgive me if I do not proceed to discuss them further this afternoon.
The Bill was described by the noble Lord, Lord McIntosh, as a ragbag; I would call it a hotch-potch, but it comes to much the same thing. Parts of it, of course, are quite unexceptionable. But if I look at the history of the Bill from the time of its inception, I confess that I begin to think of the Secretary of State as a sort of "Coco Pops" Home Secretary. I visualise him eating his breakfast cereal every morning surrounded by the tabloid newspapers, and almost every morning what he thinks is a bright idea flashes across his mind. Lo and behold, by lunchtime the same day he has tabled it as an amendment to the Criminal Justice Bill, without any reflection, discussion, consultation or research. That is not a very satisfactory way of proceeding. I exempt from that critical comment—because I want to be fair—what I thought was a thoughtful and brave speech he made in 396 the debate on capital punishment in another place, which I hope we shall not have to repeat in your Lordships' House.
In general terms I suggest that this has been no way to legislate and the result is an extremely odd Bill. Your Lordships will deal with the Bill in its various stages. I believe that it will be an uphill task to turn it into something that does not cause irreparable harm to our criminal justice system.
§ 4.2 p.m.
§ Lord LowryMy Lords, Sir Denis Henry, the first Lord Chief Justice of Northern Ireland, once said to my father—then hoping soon to take Silk—"Lowry, are you nervous when you go into court?" My father resorted to his usual policy in an emergency and took refuge in the truth. "Yes, Chief Justice", he said. The reply was, "Good. When you lose that feeling you are finished". It is some years since I took Silk but at this moment, addressing your Lordships for the first time, my main consolation is that if Sir Denis was right, I may not yet be finished.
I derived great encouragement a short time ago when I looked round the Chamber and saw four old and trusted friends. I refer to the noble and learned Lords, Lord Hailsham and Lord Rawlinson, and the noble Lords, Lord Merlyn-Rees and Lord Mason. Divided in some respects, they were united by being friends of mine and friends of all the people of Northern Ireland; united by their caring and supportive attitude at all times.
I had the honour to become a Member of this House 15 years ago. My failure to participate in the debates was not due to any lack of interest in your Lordships' proceedings. To start with, by reason of my former office, I felt inhibited from saying things which might seem contentious; thereafter I continued to feel that I was unlikely to utter thoughts which had not been or would not be expressed as well or better by someone else. Indeed, I still harbour that suspicion. But in venturing to mention the right of silence I have the small personal advantage of possessing some fairly reliable but second-hand information regarding the working of the Criminal Evidence (Northern Ireland) Order 1988.
Conscious of my duty to avoid controversy I shall try to be as factual as possible in proposing some matters for your Lordships' consideration. I must first declare an interest, or rather bias, in favour of the clauses, but not a blind acceptance of their entire contents. Just before I ceased to be the Lord Chief Justice I was asked what I would think of adopting the parts of the 1972 report which became the 1988 order. I said that I approved in principle and that I thought the proposals should apply to ordinary as well as terrorist crime and should also preferably be applied in England and Wales, which would help to safeguard the reputation of the Diplock system of trial.
In November 1988, after my successor, Sir Brian Hutton, had assumed office, the order was made. I cannot say much about summary proceedings, but I understand that the order worked well in trials on indictment. By far its greatest use has been in relation to the failure of the accused to testify—Article 4 397 corresponds to Clause 33 of the Bill—mainly in the non-jury Diplock courts. Most of my points will relate primarily to the trials. There was an appeal to this House of Murray v.The Director of Public Prosecutions in 1992 when the Court of Appeal's dismissal of an appeal against conviction was affirmed and Article 4 was authoritatively discussed by my noble and learned friends Lord Mustill and Lord Slynn of Hadley. I understand that Article 4 is due for further scrutiny in Strasbourg from the point of view of human rights.
The judges have a formula for calling upon the accused to give evidence but the county court judges, who as well as sharing in the Diplock work conduct most of the jury trials, are, because of that fact, more acutely concerned than the High Court judges with the danger of seeming to side with the prosecution when calling on the accused. It behoves us, taking our cue from the noble and learned Lord the Lord Chief Justice, to be extremely careful about the wording of Clause 30. I am pleased to think that his words have already been heeded, although I am not yet quite sure what would be the best wording for the clause. However, in my opinion, that necessity does not affect the principle. I am also pleased to be able to tell your Lordships that I have not heard of any anxiety among counsel in the Bar Library over the 1988 order.
I chiefly wanted to say something about the Northern Ireland experience, but perhaps I may now be allowed to make one or two other points. First, the aim is a fair trial with a just result. The judge must, in his discretion, tailor his directions to the specific facts. But the jury will, as I am sure it does even now, form views based partly on what the accused said or did not say both before and at the trial. Mistakes will sometimes occur, as they do in all trials. But let us choose and operate the best method of trial. Both the method and the judge's approach to the failure to testify must be watched carefully. Your Lordships will probably remember the cogent examples given by the noble Lord, Lord Wigoder, on a previous occasion in this House when illustrating how even a good judge may be betrayed into making a comment on the failure to give evidence which would be far from justified were the true facts known. I believe that the Bar Council produced a suggestion—I shall not deal with it in detail—which it believes may help in that respect.
Secondly, the innovations could positively help innocent defendants by tending to produce early disclosures in cases where the solicitor, in his prudence but not always in his client's best interests, would at present be likely to counsel reticence. The information given may be checked and found correct and the accused released. At worst he may fare well at the trial, reaping the credit which is nearly always given by the jury to those who make early disclosure.
Thirdly, a prima facie case will always be the prerequisite of operating the new drill. Your Lordships may feel that the burden and standard of proof, despite some comments that have been made, will not be changed. My fourth point is that even now, when one thinks of the evidential burden being transferred, there is, first, the case where the accused elects not to testify. The judge may invite, and the jury almost certainly will 398 draw, conclusions. Secondly, we are already using the notice of alibi procedure. And, thirdly, I recently counted 24 statutory provisions which impose an evidential burden of proof on the accused.
My fifth point is that our present law on what the judge can tell the jury about an accused person's non-disclosure or failure to testify has become so confused that even an experienced judge cannot be sure what to say. Your Lordships may feel that we need a fresh, clear start, agreed after mature debate. And that fresh start may simply amount to the reorganisation of some existing commonsense ideas. The speeches in Murray's appeal show that Clause 33 will not make a great change in reality. I might add that a tidying operation is likely to have more effect in a jury trial by cutting down the chance of confusion and alleged misdirection by the judge. This does not apply in quite the same way in a non-jury criminal trial.
Finally, your Lordships will know that the Criminal Evidence Act 1898 gave the accused and spouse the right to testify and that Section 1B prohibited the prosecution from commenting on their failure to give evidence. I believe that that provision was an attempt to satisfy opponents of the Bill. I believe also that it was a most unfortunate idea, because, instead of having Crown counsel comment with moderation. as one would hope, and subject to scrutiny by the judge, the situation is that a judge who comments, as in a proper case he may, can appear to the jury to be doing the prosecution's job and siding against the defendant.
The debates on the measure, both in this House and in another place, make fascinating reading and, as with this Bill, give us a sight of distinguished lawyers and laymen strongly divided. Speeches for and against transcended party lines and your Lordships will find those great criminal advocates and political opponents, Edward Carson and T.M. Healy, united in opposing the Bill, one result of which was that the change did not make its appearance in Ireland until an Act of Northern Ireland in 1923. There were in place, curiously enough, by 1898 26 Acts which in specific cases allowed the accused and spouse to give evidence, and those in favour of the Bill appealed to the experience under those Acts, as perhaps some of your Lordships may do in relation to the experience in Northern Ireland. Your Lordships may wish to ponder how far the forebodings of those who were against the Bill are justified 96 years later.
Your Lordships have heard me most patiently. I apologise humbly for the fact that the clock, which I think has an ordinary speed, has reached the figure of 12. I would now crave your Lordships' further indulgence if I leave the Chamber momentarily at six o'clock and for a slightly longer time at half-past seven.
This is a time for principle, not for detail. But the right formula must be found to help the jury apply their logic and common sense while the law and the practice of the trial court scrupulously ensure the protection of the legitimate interests of every accused.
§ 4.15 p.m.
§ Lord Hailsham of Saint MaryleboneMy Lords, when I first saw the list of speakers this afternoon I said to myself, "What a marvellously lucky fellow I am. The first time I have put my name down on a Second Reading for a very long time and I have to begin by congratulating an old friend and a man whom I very greatly admire, the noble and learned Lord, Lord Lowry, on his maiden speech"—and I believe I do so on behalf of the whole House.
§ Lord Hailsham of Saint MaryleboneI am particularly happy that he has chosen this occasion for his maiden speech because, of all the lawyers in this House —and quite a number are present this afternoon —he is probably the only one who has had operational experience of some of the proposals in the Bill on a most contentious and delicate matter. I hope he will help us at the later stages of the Bill when we come to deal with them in detail. But in the meantime, he has been at the sharp end and I believe that he has made a real contribution to the Second Reading debate by making his maiden speech on this occasion; and if I may be allowed to say so, we fully understand the reasons which led him as Lord Chief Justice in Northern Ireland, and later as a Lord of Appeal, to retain his silence in our deliberative discussions for so long. It was a pity, but he did the right thing in the right way.
It has been said more than once that this is a massive Bill. It is nearly 180 pages long. It has five parts, 152 clauses and 11 schedules. In the circumstances it is almost irresistible to make one's speech a long catalogue of Committee and Report stage comments. But I wish to resist that temptation. There were moments during the speech of the noble Lord, Lord McIntosh of Haringey, when I thought that he was perhaps falling into the trap.
§ Lord McIntosh of HaringeyMy Lords, I am grateful to the noble and learned Lord for giving way. We believe that it is the duty of the peer speaking from the Opposition Front Bench to give some indication of the way in which we shall be proceeding with the Bill at later stages. That is why it was necessary to go into rather more detail than I would otherwise have wished.
§ Lord Hailsham of Saint MaryleboneMy Lords, I am very glad the noble Lord admits that there was a certain amount of truth underlying my criticism. I want to avoid falling into that trap myself and also to avoid any form of party political speech. That was the course recommended by the noble Lord, Lord Wigoder, in his speech. I am not sure that there was not a time in his treatment of my right honourable friend the Home Secretary when he had forgotten his own good advice. But we shall have plenty of opportunity to go into that later.
I wish to speak in support of the Bill and to congratulate my noble friend Lord Ferrers on what I thought was an admirably concise and restrained contribution to the debate. The Government are to be congratulated on tackling this problem. Despite some 400 slightly encouraging details in the latest figures published last week, it is a melancholy fact that, since the war, crime has increased, is increasing and ought to be diminished. The purpose of criminal justice is to prevent, detect and convict the guilty and to subject them to appropriate penal treatment, and to acquit the innocent. I emphasise the last point, not, I suppose, for the first time in this debate, because it ought to go without saying, although it must still be said, that in our anxiety to convict the guilty we should not be seduced into cutting any corners, reducing the safeguards properly surrounding the burden or the standard of proof of guilt—the safeguards surrounding suspects—or diminishing the duty of human treatment of those in custody, whether as convicted criminals or on remand. To do so would not merely be unjust—and it would be unjust—but it would also, at least in my opinion, be counterproductive. I believe that it would reduce the conviction rate by encouraging perverse acquittals and undermining the confidence of the public in the underlying justice and humanity of the system.
At this stage it is right for me to emphasise the fact that it is also a melancholy truth that both the detection rate and the conviction rate of crime have diminished over recent years. When nearly quarter of a century ago I was first appointed Lord Chancellor, the conviction rate in England and Wales as regards indictable offences on pleas of not guilty was of the order of 70 per cent. I wish that it had been higher, as long as innocent people were not convicted. But it is now standing at less than half. I believe that the rate is now about 40 per cent. unless I am mistaken. Therefore, there is every reason to congratulate the Government on making a serious attempt to address the problem.
This is no time for a serious discussion of the causes of crime. But there is one point which I believe I should make. It is my conviction that among the causes is a general decline in public moral standards in the broadest sense of the word. I am not now talking about any particular religious or philosophic tradition. The point is not a religious one, but it was well made in a little remembered volume called The Abolition of Man by the late C.S. Lewis. To illustrate it I am going to quote (or very nearly quote) from his biographer, Mr. A.N. Wilson. He said that Lewis's contention, which cannot historically be denied, was that there has been a system of values discernible in almost all moral and religious centres from the beginning of literature until the mid-20th century.
To emphasise that he was not just talking about Judaeo-Christian tradition, but something deeper and wider than that, Lewis borrowed the Chinese word and called this system of values "the Tao". He quoted in support of his thesis from old Norse, ancient Egyptian moral literature, the Chinese Analects and the classical authors Cicero and Epictetus to establish,
the existence of something outside individual feelings or the purely utilitarian requirements of a society, something which might be termed a generally accepted standard of right and wrong".According to Mr. Wilson,All these sources abhor murder, dishonesty, theft, unkindness, disregard of the old, cruelty to children and ruthless justice untempered by mercy".401 In the long run I believe it to be the case that only a restoration of a generally-held respect for moral values in this sense will serve our purpose; and that cannot be directly achieved by Act of Parliament.In debating this Bill we are dealing with the fact of crime and not any generalised theory of the kind which I have been discussing. It is therefore inevitable that we should be dealing with a series of practical proposals on a wide range of different subjects, each of which has to be discussed and argued at a later stage in terms of its particular merits. The Government here are concerned with the art of the possible. We have to deal with the situation as it is.
I was glad to hear my noble friend in opening this debate fix in the first place on three particular areas of discussions which have also attracted the attention of the three previous speakers. These areas are the widespread commission of repetitive, serious offences by juveniles; the continued commission of offences by persons while out on bail; and the inferences which it is legitimate, or not, to draw from silence by the accused during the course of criminal proceedings, starting from the first interviews with the police to the moment of summing up by the judge, verdict or judgment, as the case may be, as happens, as we have already heard, in Northern Ireland.
I wish to emphasise that I am no advocate of severity for its own sake. You do not improve a man's character by depriving him of his liberty, especially if that means associating him compulsorily with other known delinquents. There is no evidence that severity as such deters crime. After respect for moral values, the best deterrent is certainty of detection and certainty of conviction.
However, in addition to the cases cited by my noble friend at the beginning, the other day there was a widely reported case of a juvenile aged 13 years, I believe, who was guilty of 225 offences, mainly of burglary and theft. There comes a time when it is necessary to protect the public against the serious repetition of crimes of this kind. We must not forget that crimes against property are very often associated, and almost invariably ultimately lead, to crimes against the person, including violence.
If you are going to resort to custody of any kind, it is not a question of locking the offender up for as long as you can get away with it, as the noble Lord, Lord Wigoder, said in one remarkable passage in his speech, but you must provide training at the same time. It is perfectly true that the chances of re-offending are very much greater for juveniles of this kind than one would like. Training is no guarantee against re-offending. But in some cases training may be effective. In any case, it is only rational and more humane not to leave the young person in prison by himself, stewing in his own juice, without any kind of treatment at all or any attempt at treatment.
The second point is bail. I have interested myself in this subject, at any rate since my first term as Lord Chancellor. I am not making a party political point about it at all. I began, I remember, with a speech to magistrates in Gloucester in which I said that the presumption must usually be in favour of bail. The man 402 has not been convicted and is therefore presumed innocent. I also criticised the government of the day when I was in opposition for changing the criteria which then existed. I criticised this Government when I spoke from this Bench for continuing the same criteria in a relaxed form. I predicted that if the new criteria were continued without alteration there would be a gradual increase in the number of offences committed while on bail, and that has happened. The number of offences committed while on bail is, I believe, currently at the rate of about 50,000, which is too many.
It has always been my contention that there comes a time when the chances of offending while on bail present an unacceptable risk to the magistrates or other bail authorities. It may be the gravity of the offence. When I first went on circuit as a judge's marshal in 1931 to Mr. Justice Roche, as he then was, he told me that in cases of murder, bail was almost never granted. This Bill is much milder than that. It states that you have only to have a previous conviction for one of these very serious offences for the presumption to be removed. The Government are to be congratulated on dealing with this subject.
Thirdly, I do not wish to add much, although I had intended to say something more, about the highly contentious matter of the right of silence, so called. It must be said at the outset that a man, an accused person—I always refer to him as a man, and must be added that he nearly always is —is entitled to speak and entitled to remain silent. That right remains inviolate. Nobody can make him speak and nobody can make him remain silent. There is also a stage in the earlier stages of the investigation when the prosecuting authorities must be disciplined by refusing to admit evidence improperly or oppressively obtained: that I fully agree with. But after that the question is one of relevance, and the test of relevance is whether it is or can be thought reasonably to be logically probative, and the judges of relevance are the tribunals of fact: the judge in summing up to the jury, the jury in giving its verdict, the Diplock judge in Northern Ireland, who tries the case alone, or in the case of 95 per cent. and more of the crime which is in fact dealt with in England, the magistrates' court.
There is too much mystagogery about this business and too much gobbledegook. The fact is that the rule is or should be that which I think the the noble and learned Lord, Lord Lowry, said in his maiden speech—that the test should be one of common sense and logic—and the standard and burden of proof should remain where they are, namely on the prosecution to prove its case.
For these reasons I think the Government are to be congratulated on introducing this Bill. It will no doubt be carefully scrutinised on Committee and on Report, though I hope less carefully on Third Reading. In the meantime, I commend it to the House for Second Reading.