§ Lords Amendment: No. 21, in page 15, line 18, after "15" insert "(2)".
§ Mr. Taverne
I beg to move, That this House doth agree with the Lords in the said Amendment.
It may be convenience if with this we take Lords Amendments Nos. 22 and 246.
§ Mr. Taverne
The substantive Amendment is the second, the first and third being purely consequential.
This is a fairly difficult provision and I might have to explain it at slightly greater length.
After the passing of the Bill a magistrates' court will be able to issue a warrant for a defendant's arrest if the offence is punishable with imprisonment or if the court proposes to disqualify him. It will be able to do this even though he may not have acknowledged receipt of the summons, since the Magistrates' Courts Rules will be amended to dispense with strict proof of service. Similarly, without proof of service, the court will be able to proceed in the absence of the accused. If, however, the court chooses to do neither, but instead adjourns the hearing, perhaps to give the defendant the opportunity to be present, it would not subsequently, under the Clause as originally drafted, have been able to proceed in his absence or to issue a warrant for his arrest unless it is satisfied—by strict proof of service—that the notice of adjournment came to his knowledge.
Under Clause 20 of the BillRestrictions on passing sentence in the absence of the defendantthe court is under a duty to adjourn if the defendant fails to appear. His presence is necessary for a sentence of imprisonment to be passed, and he must be appraised of the court's intention to disqualify him. In effect, therefore, if the court adjourned, either because it must do so, or if it merely wishes to give the defendant a second chance to appear before issuing a warrant, it would, under the Clause as originally drafted, lose the procedural advantage that will accrue from Clause 18 and the subsequent Amendment of the Magistrates' Courts Rules.
The Government consider that there is no reason why, on the non-appearance of the defendant at an adjourned hearing, a warrant should not be issued without strict proof that the defendant received the notice of adjournment. Where the offence is punishable with imprisonment a warrant could have been issued in the first instance, instead of a summons, and on the first occasion of non- 794 appearance a warrant could similarly have gone out. If the court does not have the power to issue a warrant on the second non-appearance without strict proof that the defendant received the notice of adjournment, there may well be a tendency to issue one on the first occasion instead of following the perhaps more enlightened course of adjourning.
Section 15 of the Magistrates' Courts Act 1952 is therefore amended to dispense with the need for the court to be satisfied that a defendant received the notice of adjournment before issuing a warrant under that Section for his arrest.
There are some important provisos. The court is not enabled to proceed with an adjourned hearing in the absence of the defendant unless it is satisfied that he received the notice. Where, under Clause 20 of the Bill, the court necessarily adjourns in order to give the defendant an opportunity to be present at a hearing where it is proposed to disqualify him, it would obviously be wrong for it to proceed in his absence without being satisfied that he received the notice. In other cases, where the question of disqualification has not arisen, the fact that the court has adjourned will usually indicate that it would prefer him to be present, and it would be incongruous then to proceed regardless of whether he had received the notice of adjournment.
§ Question put and agreed to.
§ Subsequent Lords Amendment agreed.