§ 11.6 a.m.
§ Mr. Clinton Davis (Hackney, Central)
I beg to move,That this House, mindful of the need for Courts of Summary Jurisdiction to maintain the highest standards of justice, calls upon Her Majesty's Government to recommend the establishment of a Royal Commission to inquire into the present arrangements for the administration of justice at Courts of Summary Jurisdiction, and to report what reforms should be made for the more convenient, economic and efficient disposal of the civil and criminal business at present dealt with by these Courts, and that in particular the Royal Commission should inquireIt would be churlish if I were not, before dealing with the Motion, to offer to 854 the Government on this day of all days, the anniversary of their election to office, the very happy returns which they have received from Hayes and Harlington, Bromsgrove, Itchen and Goole. I hope they have many returns of that character in future.
- (1) into the rôle of lay justices,
- (2) whether the Courts should exercise jurisdiction over civil business,
- (3) whether these Courts are adhering to the requirements of the Criminal Justice Act 1967 with regard to bail,
- (4) whether, in the interests of justice, criminal legal aid is being granted as fairly and widely as is necessary,
- (5) whether criminal legal aid should be extended to cover applications to a Judge in Chambers, and
- (6) as to the measures which should be taken to ensure that these Courts provide reasonable and comfortable facilities for Magistrates, Court staff, advocates, accused persons, witnesses and other members of the public.
Since tabling my Motion the Government have produced a consultative document, which has been sent out to magistrates' courts. Whether this has occurred as a result of my Motion I know not—
§ The Under-Secretary of State for the Home Department (Mr. Mark Carlisle) indicated dissent.
§ Mr. Davis
—and, despite the dissent of the Under-Secretary, it is good that the Government should be responding to the obvious need for an inquiry into the administration of magistrates' courts.
I have seen the consultative document and it is useful as far as it goes, but it is related solely to the question of administration. In that respect it is far too narrow, while the Motion covers a much wider sphere; and I hope to persuade the House that it is necessary to embark on a far wider inquiry than the mere administrative undertaking of which the Government speak in their consultative document.
It is generally conceded that something urgently needs to be done about the administration of magistrates' courts. There must be more flexibility in the system. There is a strong case for central control, and that is one argument posed in the consultative document. That would help to avoid the delays which cause so much injustice and a great deal of unnecessary expense, not only to the State but to people who are involved in litigation, to witnesses and to the general public.
The first part of my Motion asks for an inquiry by a Royal Commission into the rôle of the lay justices, on whom there is focused frequently the spotlight of attention and publicity. One gets cases like Desremault, or the case involving a young child who was brought into court to witness the shame of its mother. When these cases arise the blaze of publicity is cast on them by the Press, and there is a condemnation of the whole system of the lay judiciary.
855 This is wrong, though unquestionably the lay justices make mistakes. One finds that some of their mistakes should never have been made, such as the situation when the lay justices retire after a submission by the defence that there is no case to answer, only to come back to say that the man is guilty. This of course happens, though happily not very frequently. But to condemn the whole system because of the relatively few errors that occur is quite unjustifiable.
I declare my interest in this matter, not that I am a lay justice. When I was mayor I was an honorary justice of the peace, but I certainly did not sit. But my wife is a lay justice and, I think, a very good one. I take the view that these people are very dedicated and by and large they do a very difficult job extremely well. They carry very heavy and wide responsibilities. As long ago as 1485—a little before the high water mark of the legislative tide—the Chief Justice of the day asked "How many justices think you will now suffice, without breaking their backs, to bear so many, not loads, but stacks of Statutes?" I wonder what he would have said today.
To be a lay justice today is a daunting job. It is necessary to undergo a substantial course of training before a lay justice can sit, and during the period that they hold office they are requested to undertake sentencing exercises. I wish that all of them were required to undertake those sentencing exercises because there is no more difficult task facing any magistrate or, indeed, any court than that of determining the sentence that should be imposed. It is much easier to find out whether somebody is likely to be guilty or not guilty of an offence than to determine the appropriate sentence.
Also they have to sit very frequently. I do not know whether the Government propose to impose upon the lay judiciary a task that they had during the times of the Tudor Parliament when they were ordered by Parliament to fix prices and wages and to set the unemployed to work. Certainly this is something to which the Government ought to give consideration in the present political context. Unquestionably their tasks are manifestly difficult 856 and one must remember that they perform them voluntarily.
I think some criticism is justified of the system as it is applied at present, because in a long case, whether it is by way of a trial or committal proceeding, which is likely to last many days and possibly weeks, great injustices are caused to the defendants and witnesses, particularly to defendants who are in custody. There was a case recently—I will not mention where it took place because it is sub judice—in which a defendant was in custody and the lay justice dealing with the case could sit only twice a week because he was a busy professional man. Certainly one would not wish to condemn him. But it meant that the committal proceedings were extended over a period of seven weeks, and it would seem to me that that was quite unjustifiable. I would therefore like to see a system whereby we had peripatetic stipendiaries being required to undertake this sort of long litigation, where it is inconvenient for justices to sit for a prolonged period of time.
There is also clearly a problem of accommodation. I suggest that accommodation might be used far more wisely than it is at the moment. Is it really necessary in overcrowded congested magistrates' courts for motoring offences to be dealt with and for matrimonial cases to be tried? Could they not be tried in local town halls? I know that there are some petty sessions already held in local town halls, but there are other places in boroughs where this sort of case could be dealt with and the delay, particularly in the London area, which so invariably occurs in long cases could be mitigated.
I think it follows from what I have said that we ought also to consider—I should like a Royal Commission to consider this—whether courts of summary jurisdiction are the best venue for civil litigation which they have to carry at the moment, particularly so far as matrimonial jurisdiction is concerned. Police officers are present, and these cases are dealt with by people who are almost entirely and exclusively concerned with criminal matters. The stipendiary magistrates or the justices of the peace are concerned largely with criminal matters, and the stipendiary magistrates are almost invariably drawn from people 857 who have been practitioners in the criminal law.
As one who practises in courts of summary jurisdiction frequently, I am never happy at the way in which matrimonial cases are dealt with. These are matters of the greatest importance to the parties concerned, and yet, because of congested lists, it frequently happens that inadequate attention can be given to what frequently amounts to a minor defended divorce cause. I think, therefore, that there is a very strong case at least for an inquiry into determining whether there ought to be some other form of court dealing with this sort of process.
The third point in my Motion deals with whether courts of summary jurisdiction are adhering to the requirements of the Criminal Justice Act, 1967 concerning bail. I think it goes without saying that we have to be especially vigilant about a matter as important as bail. The effect on the accused, if he is denied bail, and the cost to the State of remanding people in custody are vitally important considerations. About 40,000 people each year are held in custody pending their trial, and something over half of those people are ultimately not given any form of custodial sentence. Of those, one in 10 are acquitted. We ought to look very carefully at the way in which bail is being administered by the magistrates' courts.
A very strong prima facie case for an inquiry has been made out by Mr. Michael Zander in the survey which he undertook and which was reported in the Criminal Law Review. He found that where the police opposed bail, defendants who were legally represented had twice as good a chance of getting bail as those who were unrepresented. This would suggest that evidence which is so vital for the court's proper consideration of the question of bail—the home background of the accused, his state of health, his family situation, his employment record and many other factors—are not always presented to the court by an unrepresented defendant. There is overwhelming evidence of that, and it is evidence that is not merely statistical. It comes from one's day-to-day experience as an advocate in the courts.
One often finds an inarticulate defendant who is quite incapable of presenting 858 the points, which are of fundamental importance, to enable the court to determine whether bail should be granted. I am not satisfied—I speak again from my personal experience—that every court is sufficiently vigilant in determining these factors, that every court makes sufficient inquiry. There are some courts which do not bother even to inform an accused person of his entitlement to apply for bail. It is true that there is no legal requirement upon a court to inform a defendant, whether he is represented or not, of his entitlement to apply for bail. But there is a very strong case for making that a legal requirement. It should be the duty of the court to inform a defendant of this entitlement, even in circumstances where it would be totally academic having regard to the nature of the offence and what the court knows about the situation.
§ Mr. Ernie Money (Ipswich)
Does the hon. Gentleman agree that quite a number of summary courts are sometimes flying in the face of the Criminal Justice Act by applying longish, continuing periods of remand in custody from week to week of persons hitherto of good character, on the basis that it may not do them any harm in the long run?
§ Mr. Davis
That is a sinister development. It does occur, but I do not know how frequently. I do not think that there is any statistical information to support what the hon. Gentleman says, but he speaks from his personal experience, and I verify what he has said from my own impressions and experience.
The Criminal Justice Act, 1967, imposed certain duties with regard to bail in the courts. One is that the courts are required to give written reasons for the refusal of bail to defendants who are unrepresented. The trouble with that is that the Home Office, which sent out a circular on the matter to courts, says that for bail to be refused it must be asked for. That adds weight to my suggestion that to overcome that difficulty a court should be duty bound to tell a defendant, "You are entitled to ask for bail. What do you want to say about it?". Then the court should give consideration to the whole matter.
It is important that the courts should say, "We want to know all about you, or as much as we can find out before we 859 make a decision of the kind." I am not satisfied that that happens.
There is serious evidence that where courts have refused applications for bail a number of them are failing to comply with the requirement imposed by the Criminal Justice Act to give written reasons to the defendants. Mr. Zander's survey came to the conclusion that of those who were investigated 68 per cent. of unrepresented defendants who were refused bail were given no reasons for the refusal. That bears out my experience in the matter. It is worthy of inquiry. I put it no higher than this, that Mr. Zander has made out a case which the Home Office should answer by a full-scale inquiry.
Another duty imposed by the Act is that where bail is refused to an unrepresented defendant he should be informed of his right to appeal to a judge in chambers. My experience—and again this bears out what Mr. Zander has said—is that the practice in this regard is far from uniform, and that there is strong evidence to suggest that many courts of summary jurisdiction are not complying with that requirement.
Should so many accused persons who are remanded for medical, psychiatric and social reports be remanded in custody? This must depend on the profundity of the report which is required and how essential it is for the person carrying out the inquiries to have close and frequent access to the accused person. Again, there is strong evidence to suggest that many people under this head are being remanded in custody without just cause.
My fourth point relates to legal aid. It should be available as fairly and widely as possible. Too often at legal dinners we hear people who should know much better criticise the whole administration of legal aid and say that it is subject to so many abuses and so on. We had a singularly inept contribution from the Lord Chancellor in this regard, when he seemed to give succour to backward courts in suggesting that legal aid was too frequently abused. I do not believe that his criticisms were justified. He was speaking not as a Minister, we are told by the Prime Minister, but purely as an individual voicing his own 860 views. Of course, there are abuses of any social service. There are abuses of legal aid, but we must get the matter in the right context. I remember reading of a case at King's Lynn some years ago which on the face of it seemed rather absurd. A man was granted legal aid when he chose to go for trial on a charge of making a false statement for the purpose of obtaining legal aid. But, by and large, the system is administered very well by legal practitioners, and it is fundamental to a civilised system of justice.
Mrs. Susanne Dell, the wife of my right hon. Friend the Member for Birkenhead (Mr. Dell), has just carried out a survey of her own into the question of legal aid. She made it clear that there were enormous periods, particularly in serious cases, in being unrepresented for people who were ignorant of the procedure and the legal implications of taking certain actions, people who were unable to articulate in court, who were unable to present their own case or to litigate effectively. All practising advocates are familiar with that experience from simply being in court and observing that sort of situation.
The Widgery Committee's Report, upon which the Criminal Justice Act was based, set out five major points upon which the courts should examine applications for legal aid. They were:
Those recommendations do not have the force of law, but they were intended to ensure that an accused person should not be prevented through lack of money from defending serious charges or mitigating on the question of sentence as effectively as possible.
- "(a) That the charge is a grave one in the sense that the accused is in real jeopardy of losing his liberty or livelihood or suffering serious damage to his reputation;
- (b) That the charge raises a substantial question of law;
- (c) That the accused is unable to follow the proceedings and state his own case because of his inadequate knowledge of English, mental illness or other mental or physical disability;
- (d) That the nature of the defence involves the tracing of witnesses or expert cross-examination of a witness for the prosecution;
- (e) That legal representation is desirable in the interest of someone other than the accused, as, for example, in the case of sexual offences against young children when it is undesirable that the accused should cross-examine the witness in person."
861 There are too many courts in which even in grave charges legal aid is denied. I have come across a number of cases where in charges of assault on the police the accused person has been denied legal aid. It seems to be a practice in some courts to deny legal aid where there are charges involving the possession of cannabis, and in certain courts where there are charges of shoplifting. Even where no custodial sentence is likely, the shame that follows a conviction, particularly for a first offender, should move courts to ensure that legal aid is granted.
As to the criterion of an adequate knowledge of English, how often do we find, for example, at Marlborough Street Magistrates' Court that legal aid is not even offered to a defendant? He is not informed of his rights in that regard even when serious allegations of shoplifting are made. Very few of those who appear at Marlborough Street Magistrates' Court on charges of shoplifting are represented. Very few are granted legal aid. Foreigners are provided with an interpreter, but that is not good enough, because I do not believe that many of them realise the full implications of the court procedure. It is vital that the accused person should be given legal aid much more widely than is now the case.
Mrs. Dell found, with regard to mental illness or disability, that 90 per cent. of those who were imprisoned and were mentally affected were unrepresented. That is a startling situation. It is very important that the Home Office should turn its attention to this matter.
Are the criteria set out in the Widgery Report being followed? In the debate on 4th December last year the Home Office conceded that there was a disparity between the way in which courts throughout the country deal with legal aid. The Home Office can hardly deny that, but it denies that there is any policy on the part of certain courts and says that it cannot interfere with the discretion of the magistrates. I believe that there is now considerable evidence that the Widgery criteria are not being followd by certain courts. Let us remember that they are criteria which my right hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins), when Home Secretary, said on Second Reading of the Criminal Justice Bill he would undertake to commend to the courts. He said: 862The Widgery scheme, both the favourable and the unfavourable parts of it from the point of view of the Exchequer … should come into operation not piecemeal, but as a whole." —[OFFICIAL REPORT, 12th December, 1966; Vol. 738, c. 74.]Why has that not happened? The Home Office says that there would be an intolerable financial burden if the criteria were to be fully applied, and that there would be an intolerable burden upon the lawyers who practise in those courts. It says that it is a very real problem which it cannot solve at present. That is totally inconsistent with the argument adduced by the Under-Secretary of State for the Home Department on 4th December last year, when he said:The criteria has been referred to by the hon. Member for Hackney, Central. Those criteria were laid down by the Widgery Committee. We have no reason to be aware of any substantial body of disagreement with the criteria, nor do we have any substantial reason to believe that they are not fully known to the different courts. To the extent that there is any lack of knowledge of or disagreement with the criteria, the very fact that we are having this debate will draw the attention of the courts to the criteria and to the way in which they are applied throughout the country as a whole."—[OFFICIAL REPORT, 4th December, 1970; Vol. 807, c. 1740.]That is a totally inconsistent argument with the other arguments adduced by the Home Office, to which I have referred.
I now come to the figures. In the debate on 4th December, 1970, I referred to some very disquieting information revealed in the statistics provided by the Home Office about granting legal aid. In 1969 we had the alarming situation that in summary proceedings at Marlborough Street Court, 32 per cent. of the applications were granted and 68 per cent. were refused. At Lambeth, 29 per cent were granted. There was a totally different situation at Bow Street, nearby, which deals with many similar cases. At that court, 83 per cent. of the applications made in summary proceedings were granted.
What is the reason for the difference? It is not enough to say that the courts deal with different cases. In my view, there is a strong argument for suggesting that different policies are applied.
We now have the figures for 1970. Once again, they show a remarkable inconsistency. In summary proceedings at Marlborough Street, approximately 37 863 per cent. of the legal aid applications were granted as against 88 per cent. at Bow Street. The figure for Clerkenwell was 89 per cent. and, or Hampstead, 96 per cent. Other 1970 figures are rather disquieting. For example, at Old Street there has been considerable decline in the percentage of applications granted. It is now only 43 per cent. in the case of summary proceedings. In 1969 the figure was considerably higher.
The point about Marlborough Street, which has remained a fairly delinquent court in this regard, is that the same situation exists in respect of committal proceedings. That court is at the bottom of the league, with only 68 per cent. of the applications being granted, whereas in most other courts the percentages are in the 90s. Even in the case of trials on indictment, in respect of which most courts grant legal aid, almost as a right Marlborough Street has refused 40 out of 376 applications.
It is patently obvious that Marlborough Street is applying a policy which is different from that of most other courts. I am not sure whether it followed or preceded the debate on 4th December, 1970, but a discussion took place at about that time between the Chief Magistrate and the stipendiary magistrates of the Inner London area relating to legal aid and the practice to be followed with applications therefor. We shall not know the impact of those discussions until the 1971 figures are available. I only hope that the impact will be considerable, and that the present scandalous situation will be overcome.
I have referred to the situation in Inner London because I know more about it, but in the debate on 4th December I referred to some of the courts outside London. At Bootle, we had the remarkable situation in which, out of 65 applications for legal aid in summary proceedings, no fewer than 61 were refused. There is evidently something alarmingly wrong in Bootle.
§ Mr. Money
There is one other aspect of the situation at Marlborough Street that the hon. Member would probably wish to consider. It concerns the Widgery criterion that where the prosecution are legally represented special consideration should be given to the grant- 864 ing of legal aid to the defence. Marlborough Street, being in an area that receives the catchment of so many of the great London stores, hears many shoplifting prosecutions, in which the prosecution are invariably represented. Therefore, the figures disclosed by the hon. Member are particularly serious in the circumstances.
§ Mr. Davis
I am grateful to the hon. Member who, again, brings his experience to bear on this matter. He is quite right. That is my experience, too.
What is needed? What is overwhelmingly important is that people who are accused of serious criminal offences should receive advice before they go to court. The mere fact that a person does not have the money to pay for a lawyer should not debar him from receiving that advice. That is why the £25 scheme that has been spoken about for long, but remains unimplemented, is so important. It would save time. It would enable a correct plea to be offered. Sometimes a man does not know whether to plead guilty. He requires professional advice, because he does not know what the law is. I am convinced that the implementation of such a scheme would involve a substantial saving on costs.
Mrs. Dell, in her survey, referred to the fact that there were still far too many inconsistent pleas. She was referring to the advice tendered by the police to an accused person that it would be better for him to plead guilty, because certain mitigating facts would then be put before the court. Evidence was accepted by the Royal Commission on the Police in 1962 that that situation persisted then, and in my opinion Mrs. Dell is right in saying that it still persists.
I do not want to cast a slur on the majority of our police officers. The mere fact that I criticise some police officers from time to time does not mean that I have a low regard for the whole of the police force. That would be totally wrong. But a minority of police officers practise that sort of procedure, and it is absolutely wrong. To some extent, that situation could be avoided if people were represented before they appeared in court. A court should also be duty-bound to inform a defendant of his rights to apply for legal aid in all but the least important cases.
865 Thirdly, the Widgery criteria should be rigorously applied. That is clearly not being done at the moment.
The fifth point in my Motion deals deals with legal aid applications to the judge in chambers. On 4th December, 1970, the Minister said that he did not consider that there was any great need for that. I think that he is wrong. Mrs. Dell, in her valuable study, has indicated that a represented accused person stands a much better chance of getting bail on application to a judge in chambers than does anybody who is unrepresented, who may be inarticulate, and who simply fills out a form which then goes before the judge. That is not a satisfactory situation, and there is a strong case for legal aid in that respect.
Does the Minister deny Mrs. Dell's assertion in that regard?
I now turn to the question of conditions in magistrates' courts. There are still too many where conditions are utterly deplorable. I realise that it is a question of priorities, and that hospitals and schools are regarded as more important than the building of courts, but we could do without the extreme luxury of some courts and the squalor of others. With a centralised system a better balance could be provided.
In one of my local courts in North London the conditions are utterly deplorable. There are no consultation facilities, and there are appalling working conditions for the staff. The court is overcrowded, and there is an outside, primitive lavatory. That is not the way to carry the administration of our courts in this part of the twentieth century. There are courts like that all over the place—at Willesden, and in other areas.
I apologise for having detained the House for so long, but this is an extensive Motion. In conclusion, I thank the Under-Secretary of State for his never-failing courtesy in answering so many of my queries. He has provided me, at very short notice, with the statistical information to which I have referred. He has been good enough to provide me with the consultative document. I thank him for that. He is one of my favourite Ministers—and I hope that that will not do him permanent injury.
The purpose of my Motion is not to indict the whole system but to quest for constantly-improving standards. I want 866 to see standards improve constantly because it is fundamental to a civilised society such as ours. I hope, therefore, that the Government will receive favourably the suggestion that there should be a much wider inquiry than that which they have in mind, and one which covers the points which I have set out in the Motion.
§ 11.47 a.m.
§ Mrs. Mary Holt (Preston, North)
The hon. Member for Hackney, Central (Mr. Clinton Davis) is to be congratulated on his interesting speech and the constructive proposals that he put forward. The Motion can be divided into two parts. The first calls for the need to maintain the highest standard of justice in courts of summary jurisdiction. But there is a need to maintain the highest standards of justice in every court in the land and to that extent the Motion does no more than express an object.
I was interested to hear the hon. Member say that this part of the Motion was not intended as an indictment of the quality of justice administered in magistrates' courts. If he had done so I would have had to dissent from that proposition. Our courts of justices of the peace are an old and peculiarly English institution. They deal with an immense variety of cases, and the comparative absence of public criticism is significant of their success. In fact, they dispose of about 98 per cent. of all criminal cases coming before the courts in England, together with a substantial amount of civil work, mainly matrimonial, which is usually acrimonious, tedious and very lengthy.
Magistrates sit in about 900 courts. If they err in any way, the matter can be—and is—taken to appeal. They usually display a very sound common sense, and the great majority of cases never go to appeal. It would be churlish of the House not to acknowlede the wonderful work done by our justices of the peace and justices' clerks. The nation would be much the poorer without them.
The second part of the Motion urges the establishment of a Royal Commission to inquire into the present arrangements for the administration of justice in courts of summary jurisdiction. We had the du Parcq Commission in 1946 and 1948, which resulted in the Justices of the Peace Act, 1949, and which also gave effect to the recommendations of 867 the Departmental Committee on Justices' Clerks.
It would surely be premature to have another Royal Commission so soon. Royal Commissions are very expensive. I presume that if we had a Royal Commission now it would cost at least £100,000, quite apart from printing and postages.
The Royal Commission on Trade Unions and Employers Associations, 1965–68, cost £113,000. The minutes of evidence cost £22,700, and the printing cost £8,150. The Royal Commission on Medical Education, 1965, cost £79,000.
Every day we are told that the country is in difficult financial circumstances. At a time when national economy ought to be paramount in people's minds, surely there are better ways of spending £100,000 than upon an investigation into the working of courts of summary jurisdiction.
In the House, where we have to extract money from the taxpayers' pockets, we should be particularly careful how we propose to spend it. It may be argued that to a nation £100,000 is no more than a penny to an individual, but the maxim, "Take care of the pence and the pounds will take care of themselves", applies as much to nations as to individuals. As I go round this House seeing the reckless waste of electricity and turning off lights when no one is using them, I think that this maxim is unknown to some Members of Parliament.
I am not prepared to suport the expenditure of £100,000 upon a Royal Commission which I consider neither necessary nor desirable. Moreover, I am not convinced that it is the best method of inquiring into these courts.
Royal Commissions are by no means infallible. We have just had the Beeching Commission on the Courts. It was singularly remiss in dealing with a court with which I am familiar, the Court of Chancery of the County Palatine of Lancaster. It never interviewed the judge of that court and was misinformed about the work done there. Nevertheless, it did not hesitate to make the widest recommendations.
Royal Commissions consist of miscellaneous collections of people, many of whom have had little or possibly no contact 868 with the courts, who are not necessarily the best people to carry out such an investigation.
I do not consider that the time is ripe for a Royal Commission. Only this week, on 14th June, a memorandum on the future organisation of magistrates' courts was circulated by the Home Office, and the Government are setting on foot moves to inquire into some of the suggested points for investigation.
It is impossible for me to deal with all the points raised in this comprehensive Motion, but I should like to mention the rôle of lay magistrates. In this country lay magistrates give unstintingly of their time voluntarily to the public. They do an immense service. The du Parcq Commission, rightly in my view, pronounced in favour of their retention. The system is far more economical than any other could possibly be. This does not mean that I consider the system perfect. However, I submit that it does not necessitate a Royal Commission.
The Lord Chancellor could perfectly well review the system himself. He could review the services performed by individual justices of the peace every 10 years. They might usefully be sent on refresher courses from time to time.
Above all, I submit that there should be more women magistrates. On every published list of magistrates appointed the numbers of men far exceed those of women. Under half the numbers of all magistrates in this country are women. It is nothing short of a national disgrace. Time and again women have shown their ability to act as magistrates. Their experience and knowledge is valuable not only in matrimonial and guardianship of infants cases, but in all cases which come before their courts.
We now have a Lord Chancellor with a noble breadth of view and outstanding intellectual quality as well as considerable human experience which he has acquired not only in the hurly-burly of politics, but in the courts. I suggest that he should use his influence to secure the appointment of more women magistrates to the bench so that eventually their numbers equal those of men.
I suggest that we could usefully consider whether some of these courts might from time to time sit in the evenings when people can more easily attend. I 869 welcome the suggestion by the hon. Member for Hackney, Central that there should be peripatetic stipendiary magistrates.
The hon. Gentleman mentioned legal aid in criminal cases. I consider that he gave too little weight to the fact that there are different cases in different courts and that each individual case involves the exercise of a different discretion which is bound to lead to disparities between courts. I make the comment that, from my experience, since legal aid was introduced in criminal cases members of the Bar practising in criminal courts have suddenly acquired a new found affluence.
There is a need to make sure that these courts provide reasonable and comfortable facilities. Some buildings used by magistrates—here I agree with the hon. Member for Hackney, Central—are simply deplorable. Outside some of our large cities, and possibly inside those cities, courts tend to be both old-fashioned and antiquated. A new magistrates' courts is being built in Preston, but the old court, which is still in use, contains two almost perpendicular flight of stairs, and it is impossible for any disabled person to ascend them. I was well acquainted with a most distinguished woman solicitor who suddenly became afflicted by disseminated sclerosis and had to give up her practice because, although otherwise well qualified to carry it on, it was impossible for her to climb those stairs. When new courts are built they ought to provide easy access for disabled persons and also reasonable sitting and interview facilities for advocates.
We should not forget that, after all, courts are for the people, and courts of summary jurisdiction are of the people. That includes women as well as men. However. I cannot agree that a Royal Commission is necessary to achieve the objects set out in the Motion.
§ 11.58 a.m.
§ Sir Elwyn Jones (West Ham, South)
I congratulate my hon. Friend the Member for Hackney, Central (Mr. Crinton Davis) on introducing the Motion in such powerful and effective terms. He has raised a number of important matters to which I am sure the Home Office will pay careful regard.
We are concerned with courts which deal with 98 per cent. of the country's 870 business. It is vital, therefore, that those courts should operate competently and fairly because it is there that the citizen will see whether justice is done or not done, as the case may be. This is where the administration of our justice is more publicly and frequently put on trial than in any other courts in the land.
My hon. Friend has made it clear that the Motion is not in any way intended as a condemnation of the present system. Indeed, since 1948 there has been a remarkable vindication of the conclusion of the du Parcq Committee that the system by which justice is administered in courts of summary jurisdiction mainly by lay justices should be continued. It is interesting that Lord Merthyr gave a dissenting view on that occasion and visualised the lay magistracy withering away as the years went by to be replaced by stipendiary magistrates. He is now one of the most enthusiastic supporters of the lay magistracy. He has been chairman of the Magistrates' Association and commended the lay justiciary, no doubt looking back ruefully to the time he expressed a different view. There is no doubt that the country owes a great deal to the justices, who give freely of their time, and I share also the comments made by the hon. Lady the Member for Preston, North (Miss Holt) about the quality and work of the justices' clerks.
During the period of the Labour Administration we paid a good deal of attention to the magistrates' courts and their procedures. I am in the position today of not having to declare an interest in this matter, because I abolished my own status as a justice of the peace when we did away with ex-officio justices. But we made rather more significant changes than that by the introduction during our term of office à more effective and general course of training which, I think, has greatly improved the quality of the benches. In a number of ways I think we can claim that, for instance, by easing the work of committal procedures we helped to reduce th enormous pressure of work upon magistartes' courts. Nevertheless, there are still serious outstanding problems, which have been highlighted in my hon. Friend's speech.
The first matter of vital importance in considering magistrates' courts is their composition. I think it can be claimed 871 that in recent years magisterial benches have more adequately reflected the community around them than they used to. They reflect better the various social classes constituting the community. More working men are appearing on benches. More women—and I agree that there should be even more—are appearing on the benches.
The basic principle must, of course, be that which was expressed by the du Parcq Commission, that in appointing justices the paramount consideration of the person's fitness for the discharge of official duties. In the old days it was thought that wealth and social position were the best guide to fitness. That attitude, I hope, has changed, and the change is, I believe, reflected in the approaches of advisory committees thoroughout the country. There has certainly been a fresh approach to the matter in recent years, which has improved the composition of our benches a great deal.
I do not know that there is a great deal that I would commend for alteration in the present arrangements for the appointment of justices, although I appreciate that there is still some criticism of advisory committees. The secrecy with which they operate and sometimes, I fear, the selections which they make may be criticised. I confess that I cannot recommend a different system though I can see that those are matters which could perhaps be looked into with benefit.
The real problem that we face now is that the Beeching Commission in its recommendations has, inevitably, produced a situation where further duties fall upon magistrates, and where consequences flow from the changes that are being introduced throughout the country, which I think inevitably call for a rather wider inquiry than that which the Home Office is presently contemplating.
I am not sure whether the inquiry should take the form of a Royal Commission. I do not share the hon. Lady's criticisms of the Beeching Commission. I know that she is still smarting from what has happened to the Chancellor's Court of the Duchy of Lancaster, but one day she will no doubt recover if she sees that the new arrangements are working satisfactorily, as I hope they will.
872 I should have thought there was a strong case for an inquiry—whether it should be in the form of a Royal Commission, or a departmental inquiry or some other form of inquiry I am hot sure—where the laymen—distinguished or undistinguished—can have a voice, where the selection of those conducting the inquiry can be spread over the community and not be confined to the Home Office or to lawyers. There are problems of accommodation and about the powers and jurisdiction of magistrates' courts and their procedures which I think call for urgent investigation. One cannot have listened to my hon. Friend's speech without a feeling of concern that something needs to be done in those respects.
Accommodation, as my hon. Friend said, is a question of priorities. There is a great deal of squalor in many of our public institutions. The great cry for a decline in public expenditure can properly be countered by a cry for better conditions in which these fundamental services to our community are being administered. The kind of situation which I met in a recent extradition case in which I was concerned is intolerable. The case started at Bow Street, before the Chief Magistrate. There was another hearing shortly afterwards at the same court. Then, I suppose because of a lack of accommodation, the court had to move to somewhere in the Guildhall, which was kindly made available by the City. Following that, the hospitality of Stoke Newington was applied to enable the court to be held. Ultimately the court came back to Bow Street. That kind of situation puts an impossible burden on the magistrates, on the clerks, and on all concerned, and something must be done about it urgently.
On the question of the premises themselves, I can tell the House that a visit to the basement of Marlborough Street, which it fell to me to make recently in a professional capacity—and no other—was a most dismaying experience. It is a cross between a Victorian wash house and a railway station lavatory. It is an extremely unattractive place, indeed.
The lack of facilities in some courts is so bad that it is a miracle that witnesses ever come forward to give evidence. That seriously interferes with 873 the administration of justice. I hope that we shall hear some good news of an increase in public expenditure in this respect, although I greatly doubt it.
Quite apart from the inadequacy of accommodation, and the poor facilities, there is room to think that there is some waste particularly by the duplication of staffs. It seems absurd that there should be two petty sessional courts in the same town in a place like Hereford or Cardiff, where there is duplication of staffs, of clerks, and of the whole apparatus. The important recommendations which Beeching made for the higher courts could be applied effectively in some of the magisterial arrangements.
Next, there is the jurisdiction of the courts themselves. I hope that we shall hear some encouraging news about proposals for the family court to take over the matrimonial jurisdiction of magistrates' courts. I hope that there will be early action in that respect.
When we come to procedures, what has been put to the House by my hon. Friend about the question of bail is very disturbing, indeed, and I know that his view will be reflected on both sides of the House. The hon. Member for Nottingham, South (Mr. Fowler), who I hope will have an opportunity to take part in the debate, has written a most disturbing article about this in The Times, and I hope that we shall hear an answer to it today from the Home Office.
It is an alarming thought that such a high proportion of those who are refused bail and kept in custody until they are tried are, when they come to be tried, either acquitted or punished in a way which does not involve custodial treatment at all. There is no compensation for them if they are acquitted after they may have spent months in jail. I feel that the magistrates' courts need to take a fresh look at this and that guidance should be given to them from authority within the limits proper in regard to this.
§ Mr. Carlisle
I hope to deal with what the right hon. and learned Gentleman has just said about bail. I appreciate its importance in this debate. Would he not agree, to put this completely in proportion, that so far as acquittals are concerned it is inevitable that there will 874 always be a certain number of people committed in custody for various reasons who are then acquitted on the particular charge which they are facing? Secondly, I am sure that the right hon. and learned Gentleman will bear in mind that many of the remands in custody may be for the purpose of obtaining reports, and the result of the reports may be the reason why a non-custodial sentence is given.
§ Sir Elwyn Jones
I appreciate those two points; they are good ones. They explain a certain proportion of the cases I have mentioned. But I fear that there is a substantial reserve of cases which do not come into either of those categories, where excessive caution on the part of, perhaps, the police and the benches themselves results in unnecessary imprisonment. When one thinks of that happening in the context of what is going on in our prisons today—the prisons are practically unable to cope with their reformative rôle because they are grossly overcrowded; three to a cell is a common feature of prisons today—it is amazing that the prison officers continue with their job. This is a serious, critical situation. I hope that we shall hear an indication that this is one of the matters that are being investigated and considered.
§ Mr. Ian Percival (Southport)
I do not want to suggest, by the question I am about to ask the right hon. and learned Gentleman, that I underrate the importance of what he is saying. I merely wanted to follow up the questions asked by my hon. and learned Friend. Is there not another category which must be taken into account on another consideration to put the matter absolutely in perspective; that is, the category of case where it is because the person has been in custody awaiting sentence that the court is able to say that that person has had something akin to punishment and has had a taste of prison, and is able then to say that there is now no need for a custodial sentence? That category should be taken into account.
§ Sir Elwyn Jones
That category exists, and it is alarming that it should exist to such a degree. I am sorry to say that one has an uneasy feeling that some courts tend to use denial of bail for the purpose, so to speak, of teaching a lesson before the trial has taken place. [HON. MEMBERS: "Hear, hear."] I hope that it 875 does not happen frequently. But those of us who have been in and out of the courts know that it occurs. The "Hear, hears" from the other side of the House confirm what I have said.
I am not pretending that it is an easy problem. I have heard the former Lord Chief Justice criticising benches for releasing people on bail who immediately start on a course of burglary and the committal of crime. Nevertheless I cannot help feeling that the courts have erred on the side of excessive caution, and that in the result grave injustice has been done to thousands of our fellow citizens.
On the question of legal aid, I confess that the account which has been given of the findings of Mrs. Susanne Dell, published in her book "Silent In Court", have caused me grave concern. I am wondering whether we shall hear comments from the Under-Secretary of State for the Home Department on her findings and conclusions. She has found, for instance, among her inquiries among women prisoners at Holloway that almost 80 per cent. of prisoners found to be psychotic or mentally subnormal were unrepresented at their trials, as were six out of 10 women who spoke no English and 61 per cent. of first offenders. It is apparent that the criteria which the Widgery Committee recommended as the basis for legal aid are not being applied. The criteria were, as I understand it, that there was a real risk of a custodial penalty or of serious damage to reputation, or where the accused could not follow the proceedings, for instance, because of his mental condition or lack of knowledge. It would seem from this study that there is a widespread denial of legal aid in some of those categories where legal aid ought to be provided.
It may be said, and the approach of some courts apparently is, that where what is alleged to have been stolen is of little cost or value, perhaps legal aid does not matter a great deal. But I do not think that the House needs to be reminded of the great Shakespearian comment which we have heard a thousand times:Who steals my purse steals trash;But he that filches from me my good nameRobs me of that which not enriches himAnd makes me poor indeed.Merely because it is a shoplifting case, it does not mean that there should be 876 no legal aid. The real problem is, first of all, one of manpower. But, more than that, it seems that there is so little information available about the case when the decision to grant legal aid has to be made, and many of those who come before the courts are really unaware of their rights in this matter. There is a real job here for the legal profession.
I agree with what has been said about the £25 scheme and how regrettable it is that that has not been introduced—although I do not know whether that would assist very much with regard to this problem. There is no room for complacency about this.
I suppose that I ought to declare my interest here. There is no doubt that extension of legal aid will benefit the legal profession. But it will benefit still more those who come before the courts who ought to receive legal aid and representation.
In conclusion, in my view there is a case for a wider inquiry than at present contemplated. We have indicated, and no doubt we shall hear further suggestions from both sides of the House, some of the wide issues of importance which fall for consideration now. I hope very much that we shall have an encouraging response from the Under-Secretary.
§ 12.19 p.m.
§ Mr. Edward Gardner (South Fylde)
I join with other hon. Members who have congratulated the hon. Member for Hackney, Central (Mr. Clinton Davis) not only on his speech but on the choice of Motion. This gives the House a very valuable chance of discussing a subject which touches all of us—the better administration of justice in magistrates' courts. This is one of those rare days when one is able to discuss an issue of great consequence without political overtones. I have criticisms of the Motion, and I know that the hon. Member for Hackney, Central will not associate them in any way with party policies.
The right hon. and learned Member for West Ham, South (Sir Elwyn Jones) referred to the change of the law on committal proceedings brought about by the Criminal Justice Act, 1967. I know that it will not be thought irrelevant if I say that I am confident, as are other Members of the House, that my hon. and learned Friend the Under-Secretary of State for 877 the Home Department is one of those who has at heart the interests and future of the magistrates' courts in this country. Indeed, that is an interest which I have shared with him personally for many years.
Some time ago, before the 1967 Act was passed, he and I, as he will remember, got together and made proposals in a pamphlet about such changes as we thought were necessary in committal proceedings. We have never complained—it would be churlish to do so—that our clothes had been stolen when these recommendations found legislative form in the 1967 Act.
I have two criticisms about the Motion, first, about what it contains, and second, about what it does not contain. My first criticism is that the Motion calls for the setting up of a Royal Commission to look at the problem of magistrates' courts. I have not the slightest doubt that the administration of justice, and the administration of magistrates' courts, deserves consideration and, indeed, is necessary. But I cannot for the life of me think that we need the ponderous, expensive and slow-motion hammer of a Royal Commission to crack this particular [...].
The conclusions of the du Parcq Committee in 1948, on the rôle of lay justices, seems to me to be as unassailable as ever it was. The reason for the conclusion of the Committee in 1948, namely, that if we did away with the lay magistrate we should have to recruit qualified people to replace him, thus giving rise to the question of where we would find such people in sufficient numbers, seems to me to be stronger than ever because we will have difficulty enough in getting a sufficient number of judges to fulfil the requirements of the new Courts Act when it comes into force. This alone will be a considerable problem.
Barristers and solicitors are under increasing pressure to do more and more work in their everyday practices, and if we are to be called upon to fill our magistrates' courts in England and Wales with stipendiary magistrates we will inevitably risk reducing the number of barristers and solicitors to a critical level.
At the moment, there are only 47 stipendiary magistrates in the whole 878 country, of whom 37 sit in London. We should require hundreds and hundreds of them if we were to do away with the lay magistrates. In fact, the lay magistrates, as one sees them and understands their duties and the way in which they are discharging those duties, now appear to be doing better work than they have ever done in the whole of their long history. I do not think that we need a Royal Commission to establish what is a very obvious need for lay magistrates; nor to establish that they are fulfilling that need in an admirable way.
The other issues raised by this Motion are such particular issues as whether the jurisdiction of the magistrates' courts ought to be amended in any way. The issue of bail, which I would at once concede is a matter of grave importance—I support entirely the views expressed by the right hon. and learned Member for West Ham, South (Sir Elwyn Jones)—is one where clearly we must do something to make certain that people do not go into prison who can be, and ought to be, kept out of prison.
If I do not spend much time on this particular aspect of the Motion, it is not because I underrate its value but because I would like to urge upon the attention of the House another matter which may not be touched upon at such length, and with such emphasis, by other right hon. and hon. Members who speak later.
We must also consider the question of accommodation. That is also important. A long, long time ago I remember going to a magistrate's court with a new bowler hat. It was the last bowler hat I ever had. Unhappily, the accommodation was such that there was no suitable, or, so it turned out, safe place for my bowler hat. I agree entirely with the view that we ought to have better and more reasonable accommodation. It does not seem to me, however, that this is necessarily a justification for trying to persuade the Government to set up a Royal Commission.
My major criticism of the Motion is not that it ask for something—the Royal Commission, which I suggest is unnecessary—but that it does not mention something which I believe is essential if we are going to improve the administration of justice in magistrates' courts. I mean by that, the sentencing policy, the choice 879 of sentences which are available to magistrates in the discharge of their duty.
§ Mr. Clinton Davis
I sought to particularise certain points which I consider to be of interest, but the Motion is drawn in sufficiently wide terms to enable all this to be done. I would concede that the hon. and learned Gentleman has a good point.
§ Mr. Gardner
I would not like to be misunderstood. I am merely pointing out what is obvious—that among the six examples of what we ought to do this suggestion is omitted. I understand—I would be out of order if it were otherwise—that the Motion is wide enough to include the subject of sentencing policy, which I would submit to the House is a matter of fundamental importance, especially for magistrates' courts.
One of the sentences which magistrates have at hand in dealing with first offenders is, of course, the suspended sentence. I have no doubt that everyone in the House, and in the country, would agree that it is just as important to see that the quality of justice which is dispensed in the lower courts is as good as that dispensed by higher courts. There are 900 magistrates' courts in England and Wales, and, as my hon. and learned Friend the Member for Preston, North (Miss Holt) has reminded the House, these magistrates' courts deal with 98 per cent. of the criminal cases in England and Wales. Most of the first offenders come before magistrates' courts. The sentences which magistrates' courts may, and do, pass are of critical importance because they can help to confirm a first offender in a life of crime or, on the other hand, reform him so that he commits no criminal offence again.
I do not consider that an inquiry is necessary, but I should regard as the most persuasive reason for such an inquiry the need to look into the question of sentencing policy, especially in the magistrates' courts.
The suspended sentence began its legislative life with a good deal of promise. There were many who had great hopes that it would be of assistance, especially in the magistrates' jurisdiction. But, over the years, that promise has not been fulfilled. It has become a source of disappointment, and because of the misuse 880 or, indeed, in some cases, I suspect, the misunderstanding of that sentence, it is in danger of becoming something of a disaster, again especially as it is applied in the magistrates' courts.
If I may say so, the magistrates themselves are not entirely to blame for this, because the provisions of the Criminal Justice Act, 1967 gave lay magistrates about to impose a sentence of imprisonment for six months or less no alternative but to suspend that sentence, unless it related to certain offences which were made exceptions to the rule.
Magistrates have, therefore, I believe, been encouraged in the assumption that the suspended sentence can be regarded as a satisfactory alternative to probation. They are allowed to go under a misapprehension of the nature of the suspended sentence. They are persuaded that the fear created by the threat of implementation of the sentence if the offender does not behave himself during the period of suspension will in some way be a substitute for the guidance and help of a probation officer.
There is no substitute for the probation officer in those cases in which his help and guidance is necessary and the circumstances of the offence and the offender justify his employment, and especially is this so for the first offender.
§ Mr. Roger White (Gravesend)
I agree with what my hon. and learned Friend is saying, and I concede that at the outset of the suspended sentence procedure there may well have been magistrates' courts of the opinion which he has just described. But my experience is that both the Magistrates' Association itself and the seminars and training schools for justices have emphasised that a suspended sentence is, in fact, a prison sentence and should not be used as an alternative to any other judgment to which justices might come.
§ Mr. Gardner
What my hon. Friend says conflicts in no way with what one knows about the advice given to magistrates through their Association and the various meetings which are, and have been, held. But what I persist in saying—I believe it to be a manifest and serious matter—is that magistrates are still persuaded, perhaps because of the mandatory nature of the suspended sentence provisions, to impose a sentence of imprisonment upon first offenders who, if that 881 sentence were not available, would be given the opportunity of probation.
The result—we can see it in the figures—is that more first offenders have been going to prison than ever before. Of course, there are those who, whatever we do, will embark on a life of crime and will go back and back again, but I submit that many first offenders, if they had been given the benefit of a probation order and the help and guidance of a probation officer, might well have never seen the inside of a prison or thereafter have pursued a career in crime, which, alas, in present circumstances many of them do.
There is no alternative to the probation order. It ought to be imposed for the offender whose offence and antecedents merit an order of that kind. For the person likely to benefit from probation, and especially for the first offender, we have no alternative anything like as effective.
In all earnestness, I submit that, without an improved, expanded and independent probation service, there is hardly a facet of penal reform which will yield to solution. Without such a service, there is hardly an effective alternative sentence which magistrates can pass on the first offender who, by reason of the kind of case involved and his character, comes within the category of persons who can be helped by probation.
Without a proper probation service, I believe, the present crisis of overcrowding in our prisons, to which the right hon. and learned Member for West Ham, South referred, could well turn into a catastrophe.
§ Mr. Leo Abse (Pontypool)
The hon. and learned Gentleman has very properly emphasised the importance of the probation service, but he has used every adjective in urging how it should be dealt with except the one which points to a solution. Will he not join in the strictures which will certainly come from this side on the parsimonious attitude which has been adopted by the Home Office to the demand for increased pay coming from probation officers? How can the service expand if we do not make it far more attractive than it is at present?
§ Mr. Gardner
That cry has come not only from the Opposition. It has been heard on this side as well. If the hon. Gentleman has taken the trouble—I am sure that he has—to look at an interim report on probation published recently by a committee of the Society of Conservative Lawyers, he will know that that very point about the need to accord proper rates of pay to probation officers is made one of the main themes of the argument for a stronger and better probation service. There is no escape from that; it must be dealt with. However, I suspect that I should be out of order if I were to go further in answering the hon. Gentleman.
I reiterate the point, because it cannot be too strongly emphasised by anyone who has the interests of the administration of justice in the magistrates' courts at heart, as, I am sure, we all have in the House, or who has at heart the future reform of our penal system, which, also, we all have at heart in the House. The very pivot upon which a policy of penal reform must turn lies in the probation service.
I beg my hon. and learned Friend the Under-Secretary of State to assure the House that the importance of probation officers is in the forefront of his mind—I am sure that it is—and is uppermost in the mind of the Government as a whole, and that we shall soon have a solution to the present situation in which, I fear, unless something is done, and done quickly, our probation services will be in serious danger. If they are in peril, we are all in peril with them.
§ 12.42 p.m.
§ Mr. Leo Abse (Pontypool)
Many parts of the vigorous speech of the hon. and learned Member for South Fylde (Mr. Gardner) will raise approving echoes on this side. He has done a service to the House by emphasising the importance of assisting the probation service if we are to succeed in preventing our prisons from becoming yet more crowded and a yet more obvious disgrace to a civilised community.
I do not wish to avoid the question which have been raised, particularly regarding the reluctance of many magistrates' courts to give bail in accordance with the Widgery recommendations. Neither do I wish to demur from the 883 strictures which have been passed upon some aspects of magistrates' sentencing policy. If I pass by those arguments, I do so certainly not because I am not profoundly concerned—as the whole House is—both in the interests of civil liberties and in the interests of preventing overcrowding in our prisons, that there should clearly prevail variations in practice among magistrates' courts which raise profound disquiet in particular on the present manner of granting of bail and granting of legal aid.
I wish however to direct attention to one aspect of the Motion which has been touched upon by my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) and my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) but which has not yet been dealt with in depth. I refer to the future of the matrimonial courts, the magistrates' domestic jurisdiction.
It is becoming clearer that the way the Divorce Reform Act is already working shows how much the whole community desired to be rid of the doctrine of the matrimonial offence. That doctrine, unfortunately, still holds in our magistrates' domestic courts. It would be pretentious to suggest that in the divorce courts the law has completely emancipated itself from the doctrine of the matrimonial offence. Nevertheless, there has been a substantial advance and, clearly, the general community wishes to take advantage of it. No one who looks at the figures now coming in which reflect the present trends of petitions under the Divorce Reform Act can fail to appreciate that there is a decided lurch towards divorces being concluded without the bitter recriminations which have so often enveloped divorces in the past. This must have a particular lesson for the magistrates' courts.
It is a happy conclusion that already it seems likely that the ground of divorce which will be more used than any other in the future is that which allows parties to be divorced by mutual consent after a term of separation. The figures now coming in show that the community wishes to use, above all other methods, this method of ending a marriage that has broken down. Therefore, if we have 884 begun, as we appear to have done, to extract some of the bitterness and recrimination from our divorce courts, certainly we shall have to think how we can do this in domestic magistrates' courts, because it is in these courts that the chances of a possible reconciliation are so much higher.
When, some while ago, I had correspondence with the Lord Chancellor, which has been published, in which I suggested that there was need to review the whole question of the jurisdiction of domestic magistrates' courts, I suggested that the real purpose of the magistrates' jurisdiction has primarily been to provide a wife and family with a speedy method of obtaining financial redress and that, therefore, it may be possible, without retaining in the magistrates' courts the artificialities of the matrimonial offence, to continue to provide such needed relief on the principle that prima facie a man is regarded as responsible financially for the maintenance of his family unless he can show good cause to the contrary.
I suggested that it would be possible, as I believe it to be, to work out perhaps a series of guiding rules in order that that basic principle could be implemented. The Magistrates' Association put forward a not dissimilar programme when it suggested that matrimonial proceedings in magistrates' courts should follow the principle that a husband is prima facie liable to maintain his wife and that if he has not maintained her, he be ordered to do so until he can show that it is unreasonable in all the circumstances that he should be so ordered.
Certainly, if we are to move forward to the implementation of any such proposition, we have to be certain that the community has confidence that the magistrates' courts would be able to exercise what undoubtedly would be a very wide discretion, even if certain mandatory rules were laid down. It is, therefore, dismaying to have to acknowledge that all recent surveys which have taken place have, unfortunately, revealed the most considerable consumer dissatisfaction in the operation of the domestic jurisdiction of our magistrates' courts.
It is quite true that inevitably people in matrimonial woe wish to find scapegoats and often express their dissatisfactions with their own partner by blaming the incompetence of magistrates or 885 solicitors who may act for them. But even allowing, as we must, for these emotive facts, conclusions that are reached by surveys contained, for example, within the recent publication by Bedford College, "Separated Spouses", by Professors McGregor and Louis Blom Cooper, are chastening. Half the wives thought that the atmosphere of our magistrates' domestic courts was adverse to a fair hearing. When they were asked to assess the fairness or the unfairness of the hearing, an even higher proportion of the wives felt similarly about the actual hearing.
It may not be surprising to a House which now has many lawyers in its membership that a high proportion of the men against whom the maintenance orders were made thought that the hearing was unfair, although 90 per cent. is a very high proportion. Almost two-thirds of the wives felt similarly about the hearing, and the main ground of complaint advanced by more than half the husbands and wives was that the magistrates' courts had failed to examine the other party fully.
It is, of course, impossible in such assertions to distinguish the facts from the emotions, but this widespread feeling among the husbands and wives who go through the magistrates' courts is inevitably significant. Indeed, it is unnerving to find that only one-third of the domestic hearings in our magistrates' courts lasted for more than an hour. We all know that it may be extremely difficult to calculate the minimum length of hearing compatible with a proper administration of justice, but we equally know that even if all the complainants' allegations were admitted and the amount of maintenance agreed beforehand, according to the law a matrimonial offence must still be proved and the means of both parties inquired into.
It is a gloomy reflection on the value that we place on family life that more than 40 per cent. of the domestic cases in our magistrates' courts are dealt with in hearings of less than 30 minutes. From the surveys which have been made, that would mean that about 5,000 marriages in trouble last year were, possibly, wrecked in magistrates' courts' hearings of less than 15 minutes.
886 Undoubtedly, part of the dissatisfactions that are felt by the community, and some of which are undoubtedly felt, too, by magistrates, is due to the non-implementation in the great majority of our magistrates' courts of the admonition contained within the Magistrates' Courts Act, 1952, thatThe business of magistrates' courts shall so far as is consistent with the due dispatch of business, be arranged in such manner as may be requisite for separating the hearing and determination of domestic proceedings from other business.There are, no doubt, many reasons why that provision is observed more in the breach. A number of these reasons flow from the fact that magistrates' courts are dealt with on a local basis. This clearly becomes obvious when one considers the nature of crime. Crime is not local. It is national. It is anomalous that the magistrates' courts should be dealt with on such a local basis that the ratepayers have often been hard hit by the mere chance that a major crime has been committed in their area or that the man concerned in the crime has been arrested in their area. Many of the difficulties arise through failure to have a national structure of magistrates' courts. This is particularly true in some of our county areas. Magistrates and their clerks can—certainly not in every area, but in far to many areas—be thwarted by the parsimony of county authorities.
Again, there is a need of proper promotional opportunities and mobility for junior staff in magistrates' clerks' departments. There is a need to be able to move cases from one area to another so that the work can be rationalised. There is need to lay down criteria for physical standards and practices and there is, of course, need for the money to ensure that the physical standards and practices required are implemented.
All this, I do not doubt, points to a national scheme under a Government Department staffed by people capable of being, above everything else, first-class administrators. I doubt whether we shall succeed in taking the wider community with us in assigning a more significant, more stabilising rôle to our magistrates' domestic courts unless we succeed in having domestic proceedings courts which are genuinely hermetically sealed and cut off from the ordinary criminal courts.
887 The evidence which was given and reported upon by the Graham Hall Committee in 1968made it clear how unwilling women often are for their matrimonial breakdowns or the determination of the paternity of their children to be the subject of judicial proceedings at all and how this unwillingness is increased when courts have a criminal atmosphere".Therefore, if we are to transform our magistrates' domestic courts, it will not be sufficient merely to extract from the existing law the criminality which is implicit in the doctrine of the matrimonial offence. We have to create the conditions in which a visit to a magistrates' domestic court is not equated with a visit to a criminal court, where there are prosecutors and defenders and where determinations of innocence and guilt are made and punishment is administered.
If we are to take the community with us so that domestic courts have a much more constructive röle than deciding who hit whom, and if they are really to become one of the most important arms of our social service, certainly the wide discretion which must then fall into the hands of magistrates must be counterbalanced by a greater care, among other things, in the maintenance of court records, which vary deplorably in type and quality from court to court in a manner which is not compatible with the proper administration of justice.
It is quite dismaying, for example, that it seems that almost one-half of magistrates' courts' records, in cases where they have made orders for married women only, contain absolutely no information about defendants' income. The records show, too, it is revealed, no defendant's income in one-third of the cases in which there were married women and children in respect of whom orders were made.
All lawyers who have practised in the courts must find it particularly difficult to visualise how there can be an effective adjudication of applications to vary amounts of maintenance awarded if records are kept so haphazardly. Indeed, there must be something radically awry with the workings of our domestic proceedings courts when we find that despite sometimes continuous and raging inflation during the last quarter- 888 century applications to have maintenance orders varied from time to time are so comparatively rare.
The recent survey shows that only 32 per cent. of matrimonial orders were varied during their first five years and the proportion rose only to 39 per cent. after nine years. Only 13 per cent. of affiliation orders had been varied throughout their whole lifetime. Clearly, variation is not working in the way intended by the legislature, and yet some such procedure must surely be an integral part of our present or future system if a just allocation of resources between husband and wife is to be maintained in the face of their changing circumstances and responsibilities over a large number of years.
I think that all of us, in some degree or other, wish to see our magistrates' courts metamorphosed into family courts, but "family courts"means that courts are necessarily courts that do not rely on the certainty of rigid legal rules and procedures.
Reconciliations are not spelled out by a reading of Halsbury's Laws of England, and the familiar bearings will have to be abandoned if magistrates' family courts are, in one form or another, to become what I believe the community want them to become—in other words, healing posts, saving marriages and not smashing them.
It is easy, if wearisome, to establish, according to certain fixed dogmas, that a husband is innocent or guilty of a matrimonial offence, but domestic courts could and should have the more constructive task of prompting reconciliation; and where separations are insisted on, they should assess need and not squander time and public funds on sterile allegations of misconduct.
Solicitors and officers of the court must assist the courts and their clients in a helpful, inquiring process and abandon their present accusatorial rôles. They must become repairers and not gladiators and be joined by properly paid probation officers, no longer denied their proper due by niggardly Governments.
To reach such family courts and to move away from the cheerless waiting rooms where the parties to both domestic and criminal proceedings jostle together—to leave behind the perfunctory domestic 889 proceedings heard at the end of a magistrates' long day—requires a radical overhaul of our present system. The confidence required to be built up in a domestic forum, vested with wide discretion, relying on insight as much as, if not more than, on law, will not be obtained by tinkering on a local basis with our courts. It will need national leadership, and we should be as prepared to tear up history in dealing with these courts as we have done in dealing with the higher courts.
Today there are sitting many, perhaps too many, committees dealing with our domestic courts and their jurisdiction. There is the Committee of the Home Office and the Law Commission presided over by Sir Leslie Scarman. We have the Houghton Committee, which has been invited to express its views on family courts. Then there is the Finer Committee, whose work is bound to impinge on magistrates' courts. The Under-Secretary may deny the need for a Royal Commission, but the House will wish to know how all the work of these various committees is to be programmed and co-ordinated. There may not be a confusion of purpose, but every impression of such confusion remains.
If the Home Office denies the need for a Royal Commission it will need to convince the House that it has thought through the steps which will lead to the work that is now being done by magistrates becoming as constructive as it is now dedicated.
I have confined my remarks to the domestic courts, but when one considers the variety of approaches, doubtless all with the same objective, that are now being made, with official approval, in respect of domestic courts, it is not surprising that we have a demand for a Royal Commission, particularly when we know of the blemishes that exist in our courts which have criminal jurisdiction.
§ Mr. Carlisle
Knowing the hon. Gentleman's concern that alterations should occur rapidly, which has been the burden of his argument, may I ask him to say, in regard to the matrimonial jurisdiction of magistrates' courts, what purpose would be served by setting up a de novo Royal Commission when so many committees are, as he says, shortly to report?
§ Mr. Abse
I have drawn attention to these committees because nobody else mentioned them, because it may be too easily assumed that no work is going on into this subject or that such work that is going on is confined to the document which appeared this week. That would be a fallacious approach.
The fact that there is this multiplicity of committees means that there is bound to be an air of uncertainly. Indeed, I suspect that the burden falling on some of these committees is, in some respects, beyond their capacity. However, while I may have diffidence in responding to the plea to establish a Royal Commission, I am bound to regard it as an understandable request when I consider, for example, the burden that is at present falling on the Finer Committee.
One realises how difficult it must be to give answers to the complex problems which have been thrown at the Finer Committee and which, however the Committee answers them, are bound to have an enormous effect on the domestic side of the work of magistrates.
I therefore repeat that it will not be enough simply to say that a Royal Commission is unnecessary because it might delay, rather than hasten, the objectives we all have in mind. We require a conviction that at the end of this debate there will be a programming and coordination of the work that is going on and that we can see some goals ahead of us. We want to know when these committees are likely to report and how all the various strands will be pulled together.
There is a desire among those who are concerned with all aspects of domestic courts to talk in term of a family court. But it is easier to talk about it than to bring it about. Many people are working on the subject. It is time—and it would be a happy occasion indeed if this debate resulted in this happening—that the Home Office said how it sees the objective of family courts being reached. May we know the time-scale and how the Department proposes to bring together the recommendations that are now being made and will shortly be made by these many hard working committees?
§ 1.8 p.m.
§ Mr. Norman Fowler (Nottingham, South)
I hesitate to interrupt what is 891 so far exclusively a dialogue between practising lawyers. I am not sure whether it is better to claim that I have a legal degree or to make the more dubious claim that I represent the consumer.
I congratulate the hon. Member for Hackney, Central (Mr. Clinton Davis) on raising the subject matter of the Motion. Doubless he will return at some stage to listen to the debate. It is a pity that some of the issues which have been mentioned have not been debated earlier in the House, particularly certain questions relating to penal policy, and especially the question of bail.
I agree with the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) that this is a difficult point. Nevertheless, there seems to be a great deal of ignorance about it. Its technicalities perhaps disguise from the public the fact that we are dealing with a grossly unsatisfactory situation. The simple truth is that there must be hundreds of men and women in prison who should not be there. This is not my judgment but that of the courts which finally have the task of trying them.
Each year—in this I must correct the figures given by the hon. Member for Hackney, Central—44,000 men and women are remanded in custody, but only half of them are given prison sentences at their trials. In other words, although they have served what amounts to short prison sentences waiting for their trial, the court that hears the facts of the case considers either that prison is not necessary or acquits them altogether.
§ Mr. Money
The alarming thing about the situation is that so often the periods served are not particularly short. In the last period for which figures were available, the number of persons who served more than three months on remand and who were eventually acquitted was over 100. This does not seem to indicate that they are necessarily short sentences.
§ Mr. Fowler
I am grateful to my hon. Friend. He brings me on to what is exactly my next point. Clearly, the case of the 2,000 who are actually acquitted is the worst case and perhaps the case about which it is most easy to get worked up and indignant. But, as my hon. Friend says, of these 2,000 who, at the last count, were acquitted after having been re- 892 manded in custody, many had served two or three months actually awaiting trial. As he rightly says, over 100 had waited for over three months for trial on a charge on which they were eventually acquitted.
As I say, in a sense this is the easiest case to get indignant about—innocent men who are imprisoned—and, clearly, it is right that we should be concerned about this question. But there is another case of equally vital importance, and that concerns the 19,000 men and women who have served time in prison, again not necessarily for short periods in the sense of days but maybe going on for weeks and perhaps months, and who in the event have only been fined or put on probation. The point is that the court in its wisdom has felt that prison is inappropriate and is not necessary, and one of the reasons for this is that prison is a very serious business. For however short a period a prison sentence is served, it necessarily disrupts a man's life. It disrupts his working life and his family life. If he is self-employed—I could mention one or two cases which have been referred to me as a Member of this House—he has to put his affairs into the hands of an agent—perhaps a solicitor or some other business associate—in spite of the fact that he is not convicted and that it may be his own skill which is necessary for the continuance of his business.
Prison itself still carries a considerable disgrace even if at the trial the man is not given a prison sentence. Therefore, the courts properly treat prison as a sentence of last resort. The only trouble is that in many of the cases it will have been beaten by the bail decision itself.
§ Mr. Percival
I hope my hon. Friend is not drawing the inference that in every case where a person is not sent to prison it follows that the refusal of bail is improper. I agree that to keep a person in custody as a kind of sentence is a thoroughly bad practice, but there is a case in which bail is properly refused on all the facts. At the trial the person 893 pleads guilty and the one thing that his counsel can say in mitigation is that his client has been inside for 40 days and that, therefore, the magistrates can stretch a point and not keep him in any longer. Such cases, far from being to the detriment of the defendant, sometimes enable a court to do what all of us who have sat in court want to do; namely, refrain from imposing a prison sentence which would be on the man's record for ever more. It would be wrong to assume that every case in which a refusal of bail is followed by not imposing a custodial sentence necessarily indicates that the refusal of bail was wrong.
§ Mr. Fowler
When I said "briefly" I hoped that the intervention would be brief.
I take the case that my hon. and learned Friend has made. He has cleared up the intervention that he made earlier, which was perhaps misunderstood. Perhaps we shall have the pleasure of listening to him on this important question.
As I have also emphasised, I recognise that it is an extremely difficult problem and—if I may touch on a point which I hope to reach later—I do not see, however one improves the bail situation, that one would ever get a perfect situation. But that is no reason for not trying to improve what I consider to be the present very unsatisfactory and imperfect nature of the bail system. It is all very well saying that this short time spent waiting for trial is of no consequence. I think it is important to realise that the person who has been in prison waiting for trial has suffered some of the consequences of prison. Indeed, in at least one way he is rather worse off than the prisoner who has actually been sentenced, and that is in the all-important question of visiting facilities.
Prisons have tried to make some important progress in the facilities which are offered to visitors, relations and wives, to see the prisoner. It is, of course, right that they should have done that. So far as possible and where space will allow, the visit takes place in a fairly informal atmosphere, in a room perhaps set aside, with visitors sitting at tables talking with the prisoners over cups of tea.
But for the prisoner on remand it is not possible to do this. At the local 894 prisons, for example, the prisoner on remand sits in a small cubicle separated from his wife by a glass partition. He can hear his wife but he cannot touch her. It is, if I may say so, one of the most depressing sights in our prisons to see a wife and child huddled up on one side of a glass partition with the father of the family—the untried father of the family—on the other. I understand that there are security problems with remand prisoners. They are untried and, therefore, they are unclassified. But I cannot believe that in this day, in the 20th century, one cannot find a better system than the present one.
This is the present position then, and it adds force to the case that prison in these cases must be a matter of last resort, where it is absolutely essential and where nothing else will do.
But there is one other vital point where the interests of the individual and of public policy coincide. This arises from the state of our prisons. Our prisons are, of course, desperately overcrowded. We have over 40,000 prisoners. There are 14,000 prisoners living two or three to a cell, in cells which all too often were designed in the last century to hold one man. This leads to colossal pressure upon the prisons, and it leads to pressure on the prisoners on remand. It also leads to pressure on the remand centres.
However, my point is not so much related to the discomfort of the prisons, although those conditions may be bad. My point is related to the matter raised by my hon. and learned Friend the Member for South Fylde (Mr. Gardner). It is a point related to the efficiency of the prisons. The present overcrowding means that all the facilities of prisons are stretched to bursting point; that work facilities, for example, are inadequate in many of them; that, rather than training men for release, all too often they are carrying out a mere holding operation; that many prisoners are serving sentences of semi-idleness in conditions of near-squalor. Here the question of bail is relevant and essential.
The effectiveness of the bail system means that the burden of prisons is being increased unnecessarily. It is one of the features that most clearly must be reformed. I do not pretend that it is the only one, but it would, clearly, make an 895 important contribution. The case for its reform is not only the case for the individual, which is an important case, especially to hon. Members. The prisons are being prevented from doing the job that they would like to do and could do much more effectively. Thus there is an overpowering case for the reform of the bail system on grounds of natural justice and general penal grounds.
I am sorry that the hon. Member for Hackney, Central is not here now. An accusation of discreet pussyfooting is perhaps not the most common criticism that he receives in the House. I am sure that if he had been here he would have forgiven me for saying that his approach is normally heralded by the puffings and blowings of an elephant that has gone without water for too long and is finally nearing a pool. His target is normally so wide that he is bound to hit something. But on the question of bail for some reason he has reduced the area of target simply to the question of whether the courts are meeting the requirements of the Criminal Justice Act, 1967. One of the points about that Act is that the exceptions to the general rule on bail are so wide that they make possible no change of policy.
In any event, what the hon. Gentleman seems to be suggesting is the wrong approach. My view of the magistrates is that they do not want to send people to prison except as a last resort. Doubtless there are exceptions, but generally the reason why they send people to prison, when ideally they should do otherwise, is that they do not believe that they have the alternative, or that they do not have the information necessary to come to a good decision.
Both cases apply with regard to bail. Some of the men now remanded in prison are so remanded because there are no bail hostels to which they can be sent. I hope that my hon. Friend the Under-Secretary will deal with that very important question. It also applies because magistrates do not have the basic information on the man who is being considered. Some men may not be represented. Others, it must be said—and probably in the midst of lawyers it is better that I say it—are perhaps represented badly. That is one of the main reasons, though 896 it is not the only reason, why in so many cases the magistrates follow the advice of the police.
It would be foolish to pretend that we shall ever have a perfect system of bail. It will always depend on the exercise of human judgment. But that is no excuse for failing to provide adequate information upon which that human judgment can be based.
In the United States, as has been pointed out for a number of years, there is the Manhattan bail scheme, a points score, which is purely advisory to the courts upon whether or not to grant bail. We need something along those lines. Every man should automatically be considered for bail, and there should be an automatic report upon every man who comes up for that consideration, which would include his family links, whether, for example, he had a fixed address, his work record, and how long he had been in his job—in other words, information which would make it easier for the magistrates to come to their decision. At the same time, legal representation should be made more available.
I agree with what the hon. Member for Hackney, Central said about the other requirements of the Criminal Justice Act.
Therefore, my Royal Commission would go further than the hon. Gentleman proposed. It is axiomatic that if we are to have a Royal Commission on the question my hon. and learned Friend the Member for South Fylde must be right, that it must look at the question of sentencing, and particularly of suspended sentences, which is one of the most debatable provisions of the 1967 Act. It has been criticised by men like Professor Leon Radzinowicz, of the Cambridge Institute of Criminology, whose basic case seems to be that it is unnecessary. Whether or not we think it is unnecessary, there can be fairly general agreement that it is not working out in the way that was intended, and that too often suspended sentences are given in place of non-custodial senstences. Therefore, the net effect is to put more people at risk rather than fewer.
My last point is on the desirability of a Royal Commission as such. It is a great pity that the hon. Gentleman is not here now. It is important to remember that one of the best-known 897 Royal Commissions in this area in the past few years was the Royal Commission on the Penal System—and that was disbanded by the last Government. The story of that Royal Commission will doubtless be told one day, and the arguments and disagreements that I gather took place inside it will become slightly more public. After it had done months of work, the last Government sent it packing. If he were here, I would tell the hon. Gentleman that it ill befits a Labour hon. Member now to say, "We want a Royal Commission in a very similar field." I resist the temptation to say that, for I know that Labour hon. Members will agree that they do not find themselves bound by the sins of their last Government.
The argument advanced at the time of that Royal Commission's disbanding was interesting. It was basically that Royal Commissions, broadly, were out of date and that the need was for specialist advisory committtees. Therefore, a Home Office advisory committee on the penal system was set up. I do not want to criticise it; it has done some extremely useful work. In the treatment of security prisoners it has proved a very valuable corrective to the bad report, on the point of the dispersal of security prisoners, of Lord Mountbatten.
The desirability of a Royal Commission as such is that it has an effect upon public opinion that a special advisory committee can never have. Therefore, I do not share what I took to be the Home Office policy of the last Government that Royal Commissions were outdated. Especially in penal matters, they have an important part still to play, and particularly on the matter of prisons, where public opinion is important.
Therefore, I do not support the Motion because of what it leaves out and what it should include. But I am in principle not against Royal Commissions, and I oppose the Motion with some regret.
§ 1.30 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I congratulate my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) on having taken advantage of his luck in the ballot to move the very important Motion we are considering. It is par- 898 ticularly pleasing for me to do so as he is my colleague in Hackney. I also congratulate him on the very efficient way in which he set out his salient points.
The Beeching Report on the higher tier of courts led to the Courts Act, which implemented to a considerable extent the recommendations of the Beeching Committee. An examination of the magistrates' courts is no less necessary. I gather that the Home Office has recognised in a recent announcement that future organisation and administration of magistrates' courts in England and Wales is to be the subject of consultation between it and all interested bodies.
There has been criticism of my hon. Friend for asking for a Royal Commission to inquire into the present arrangements for the administration of justice by the magistrates' courts. He has also been criticised for narrowing the terms of reference. But I would point out that he has said that he wants a Royal Commission not onlyto inquire into the present arrangements for the administration of justice at Courts of Summary Jurisdictionbutto report what reforms should be made for the more convenient, economic and efficient disposal of the civil and criminal business at present dealt with by these Courts, …".He has thus asked for an inquiry into the whole structure of magistrates' courts.
As to the criticism that my hon. Friend has asked for a Royal Commission, I do not suppose that he desires to stick to that request. Whether it be carried out by a Royal Commission, a departmental committee with Members of the House represented upon it, or one of the number of Home Office committees, there is no question but that an inquiry is long overdue.
The last Royal Commission to deal with matters of this kind, the Royal Commission on Justices of the Peace, which was appointed in 1946 and reported in July, 1968, was rather limited in its terms of reference. It dealt mainly with such matters as the appointment of justices, their qualifications, the position of stipendiaries, expenses and matters of that kind.
Magistrates play such an important part in our judicial work that, whilst everyone will pay tribute to the immense service 899 they render to the community, it is time we had a more detailed examination of their courts and procedure, in whatever form that examination may be made. I agree with the criticism about a Royal Commission. It is essential that there should be as little delay as possible. That is one of the objections to the procedure of a Royal Commission.
My hon. Friend has drawn attention to certain matters that ought to be inquired into. I can assure the Minister that I shall not be as long as some of his hon. Friends have been. I want to talk about the inquiry that my hon. Friend wishes to be made into the rôle of lay justices. In my early days at the Bar justices outside London had a wide jurisdiction to deal with all sorts of cases, while in London they dealt only in a very narrow field. Now in London, too, they deal with a much wider range of cases, relieving stipendiaries of much work. I say that because criticism has been expressed by my hon. Friend about the great delay that often occurs because courts do not have a magistrates—this applies especially with lay justices—who can spend all the time required, and because it is said that this jeopardises the hearing of other cases. The fact that lay justices now have a much wider jurisdiction in London helps matters, but there is still room for improvement.
No one can doubt that magistrates deal with matters efficiently, and that we could not do without them, but my hon. Friend has posed a question: should magistrates have jurisdiction in civil business? Today justices have a limited jurisdiction in certain civil work and I should have thought that they had enough to do without an extension of that jurisdiction. I concede, however, that there is a case for inquiry into the whole question of magistrates' jurisdiction in civil matters.
The question of bail has been referred to by many hon. Members. I, too, feel strongly on the matter. There is certainly room for inquiry. In my view the clear principle should be that bail is granted in all cases unless it can be shown to the satisfaction of the magistrate that the accused is unlikely to attend to stand his trial. That should be the cardinal principle. Today, bail is refused in many cases when it should be granted. An officer attends court and tells the 900 magistrate that further inquiries have to be made, and that he opposes bail. He may say, "Other charges are likely to be made. I oppose bail", or, "There is some suspicion that witnesses may be got at. I oppose bail". Immediately, and often without any further inquiry, magistrates accept the word of the officer, and bail is refused.
In many cases the accused person who has been refused bail awaits trial in prison—and that may mean quite a long period in prison—and is then acquitted. That is a real injustice, which should not occur. In many cases the denial of bail is the denial of the principle—I emphasise this to the Under-Secretary—that a person is innocent until he is proved guilty.
In some courts legal aid is readily granted; in others very rarely. Remembering that the accused in magistrates' courts are often ignorant and illiterate, and find it difficult to conduct their defences, it is particularly necessary that they should be represented so that their defence can be properly put forward. I suggest that the refusal of legal aid should be the exception, and that it should be refused only where there is clear justification for such refusal. The test should not be whether a person is obviously guilty. Even if an accused person is guilty of the crime charged there are matters which can be put in mitigation, and which should be put by a trained advocate on behalf of the defendant.
There is no power to grant legal aid on an application to a judge in chambers. This means that a person who is refused bail and loses his liberty is not assisted if he desires to appeal against that decision. We have always regarded the liberty of the subject as being most important. On an application to a judge in chambers, because it involves the liberty of the subject the parties go in first, before any other case is heard by that judge. Yet there is no power to grant legal aid in such a matter.
I want to quote one case from Susanne Dell's "Silent in Court"—Occasional Papers No. 42—which will serve a double purpose. It is case 549. I hope that the House will forgive me and not think that I am wearying it too much:A 17-year-old girl with no previous convictions, was an in-patient in a mental 901 hospital. When out for the day, she stole a dress from a local shop and was arrested. She appeared in court, unrepresented; pleaded guilty and was at once remanded to Holloway for three weeks for psychiatric reports.She was fortunate in having a father who was concerned about her. He engaged a solicitor, who persuaded the court that the reports could as effectively be made from the hospital, and she was granted bail to return there. She was released after four days in prison. Had she had legal help at the outset she would never have come to Holoway: without it, she would have spent the full three weeks there.That case touches upon the point made in an intervention by the Under-Secretary when my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) was speaking—namely, that people are put in custody so that a report may be received. How often does the magistrates' court realise that such a report can be obtained without sending a person to gaol? I suggest that this is a real hardship.
I want to say a few words about the provisions in our courts—their situation and the facilities provided. There is no doubt that although some new courts are very efficient, and provide proper facilities, in many others there is a crying need for the provision of much more reasonable and comfortable facilities. In older courts an advocate often has to interview a person in a dismal little cell, outside the magistrates' court—because there is no other accommodation for interviews—with no proper provision for witnesses or for the public, and in a dingy atmosphere. Justice should be dispensed in a proper atmosphere, with proper provision for all the interested parties, and not in the atmosphere of the condemned cell.
One point that has not yet been touched upon concerns costs. I have always taken the view that the maxim that we adopt in civil actions—that costs should follow the event—is correct. I take the view, especially in criminal cases, that unless there is good reason to the contrary an accused person who is found not guilty should be awarded costs. I am aware that legal aid alleviates the position, and that a more liberal granting of legal aid would help further. But in many cases the accused person suffers not only detention in prison, awaiting trial, but hardship, distress and a serious financial loss. He may then be found not guilty, but he is not awarded costs.
902 I remember the case, a short time ago, of a person—I believe that he was an actor—who was charged with having drugs in his possession. He was found not guilty at his trial, and an application was made for costs, and was refused. Why, I do not know. There may have been a reason. In many cases, however, magistrates and judges are inclined to take the view that there is no smoke without fire, and that although the accused has been found guilty there should be no costs for him. That is utterly wrong. The courts should dispense the right to costs much more freely.
I obviously meant "not guilty". I hope that the Minister will find time to say something about that point.
I understand that the Home Office is going to have consultations. According to the Press—I have not read the papers sent to interested parties as my lion. Friend has—the Home Office is extremely concerned about the relationship between magistrates and local authorities, and whether there should be a central magistrates' court service, forming part of the higher courts, in buildings provided by the central Government and not by local authorities.
No doubt that would help considerably, in terms of the provision of proper facilities in our courts, but I am sure that the Under-Secretary recognises that there is scope for inquiry on a much wider scale. The speeches that have been made today, and the injustices that have been stressed, have shown that that is needed, and I hope that we will soon be able to initiate such an inquiry. I hope that we shall not be fobbed off—I am sure that the Minister would not be guilty of that, but it is the only phrase that I can use—by some suggestion that the Motion asks for a Royal Commission and that we cannot have a Royal Commission because it would take too long; that many committees in the Home Office would be able to deal adequately with the matter. Let us get down to the task. Something must be done about this situation.
My hon. Friend has done a real service in raising the matter, and the debate has shown how necessary it is to improve the 903 situation. I hope that the Under-Secretary will respond in full by promising us the fullest inquiry into these matters.
§ 1.48 p.m.
§ Mr. Ernie Money (Ipswich)
The House has every reason to be grateful to the hon. Member for Hackney, Central (Mr. Clinton Davis) for initiating this debate and for the measured and sensible way in which he has brought so many of the points contained in the Motion before the House.
As a lawyer of only 15 years' experience, I find that one of the interesting things about the law is that the greater claims we make upon it and the less eulogistic we are about it the better it becomes. Imagination boggles that only in this century—as recently as 1912—a sophisticated and highly complex scholar like Sir Frederick Pollock was able to say at an American university:We are here to do homage to our Lady the Common Law; we are her men of life and limb and earthly worship. But we do not worship her as a goddess exempt from human judgment or above human sympathy. She is no placid Madonna sitting in a rose garden; rather she is like the Fortitude of the Florentine master, armed and expectant, her battle mace lightly poised in fingers ready to close, at one swift motion, to the fighting grasp. Neither is he a cold minister of the Fates. Her soul is founded in an order older than the gods themselves, but the joy of strife is not strange to her, nor yet the humours of the crowd. She belongs to the kindred of Homer's gods, more powerful than men but not passionless or infallible. She can be jealous with Hera, merciless with Artemis, and astute with Athene.I do not understand how someone of Sir Frederick Pollock's reputation could in all seriousness put forward such highfalutin nonsense, even on an academic occasion when lawyers, academic or otherwise, tend to get carried away.
It is encouraging that, little by little, we are losing the extreme admiration and smugness which we had about the administration of our criminal law and the kind of complacency which led Lord Hewart, at a Mansion House dinner just before the war, to say that Her Majesty's judges were universally pleased with the respect and approbation with which they were met by the whole country. We are beginning instead to take a longer, cooler look at our institutions to see in what ways they can be improved.
904 In those circumstances, I was particularly glad to hear the speech of my hon. Friend the Member for Nottingham, South (Mr. Fowler). One of the criticisms which we often so rightly hear about this type of debate is that it becomes a lawyers' occasion. Nothing is more encouraging than that the voice of the general public, who, as my hon. Friend said, are the consumers in this instance, should be heard with such strong effect.
The hon. Member for Hackney, Central said that it is particularly right that we should look at the position of the magistrates' courts not only because, as has been pointed out in speech after speech, 98 per cent. of the country's criminal business is conducted in them, but because the largest number of people sent to prison are committed by lay justices or by magistrates' courts of lay and stipendiary justices.
It behoves us to remember that the mere act of sending to prison is not only deeply involved with the whole future of the individual concerned but is, in effect, fining society a very large amount. The cost of keeping a defendant in custody, whether on remand or after conviction, according to the most recent figures, is about £25 a week. In addition, other costs are involved: for example, the supplementary benefit consideration to wives and children in so many cases, the loss to the revenue on the National Insurance stamp and the tax which would normally be paid by somebody in other than those circumstances. It means that every time society, through its courts, sends someone to prison, it is punishing itself by way of a very substantial fine.
We need not only to balance the equation as to how far we are getting value from our courts and prisons in the sense of protecting the citizen and looking after the special problems raised by so many different classes of defendants, but at the same time to look carefully at our courts of summary jurisdiction, because they are, as it were, the biggest area of productivity, to see whether they are sending people to prison only when necessary or because the courts do not know what to do with them otherwise, or whether they get themselves into such a 905 state that they automatically follow traditions which they have been following over the years without really knowing why.
The most serious aspect of our adversary system—the system of the charge and the defence as opposed to the inquisitorial system—is that representation as such becomes immensely important in contested cases because the acquittal or conviction of the defendant depends so often on the skill of his advocate. The advocate is there to perform for the defendant the functions which he would perform for himself if he were both used to speaking in public and had specialised knowledge of the law.
One unhappy feature which sometimes arises is when, for instance, chief constables criticise members of the Bar for putting forward defences in breathalyser cases, which are valid and are upheld, on the basis that they are some clever lawyer's racket. It is right that an advocate should put forward the best defence available in law on behalf of his client.
The matter goes further when it comes to mitigation. We pride ourselves on swift justice. However, there is the unfortunate story, told I think by the late Mr. Justice McCordie, of a judge on the Northern Circuit who, having before him an advocate mitigating at some length, interrupted him with the words, "Time is passing, Mr. So-and-so. There are other cases in the List", to which the answer came, "Yes, my Lord, but not one save this in which my client takes the slightest interest." The moral is that, as in every case of mitigation, it is a terrifying situation in which the whole future not only of an individual but of all other persons involved with him can be decided in the space of, probably at best, half an hour in terms of a plea of guilty and the mitigation which follows.
I do not suggest that the German system or the system appertaining in so many foreign courts, where there is a thorough investigation going into considerable detail of the whole background, antecedents and psychological history of a defendant, is necessarily right. Obviously that leads to delays often of the kind which we would regard as totally unconscionable. None the less, it means 906 that in so many cases—the frightening figures from Mrs. Dell's study "Silent in Court" have been quoted—defendants are being sent down, particularly for short sentences which probably do the greatest social harm, without having been represented. Again, one wonders whether society is adequately balancing the amount which would be involved in paying for their representation against the cost involved in such a sentence.
I wonder whether we have looked sufficiently closely at either the Scots or the Ontario system of a roster of duty lawyers who are prepared to attend and assist the court by discovering those facts which might make it possible for the court to take a different line with a defendant and, therefore, putting it at its meanest, saving society enormous amounts of money.
The criteria involved in the Widgery Report have been set out on several occasions in the debate, but there is one other interesting summary in the course of that documentation. With regard to the objectives of a satisfactory legal aid system, that distinguished Committee concluded:… (i) that the object of the system should be to secure that injustice does not arise through an accused person being prevented by lack of means from bringing effectively before the court matters which may constitute a defence to the charge or mitigate the gravity of the offence; and (ii) that it is essential to secure that the resources available are used to the best advantage … ".The question that we ought to be asking ourselves is whether those two criteria are being met. With regard to the whole organisation of the courts, I follow very strongly the argument that was put forward by my hon. Friend the Member for Nottingham, South, and I echo the point made by hon. Gentlemen opposite about the unwieldiness of the list in ordinary magistrates' courts hearings. There is a strong case for moving the bulk of driving offences out of the ordinary list. Nothing brings the law and, in particular, the police into greater disrepute than hauling the ordinary, respectable motorist before a court for so many classes of offence which carry no sort of moral stigma. They are very often technical offences. The inconvenience to which they, their witnesses, and witnesses for the Crown are put, and the thorough squalor in which they often have to wait to give evidence, brings the whole process into disrepute.
907 Nothing could be more frightening than the lack of accommodation at some courts, and often what is so worrying is that there is a brand new court in one division, while in the next division there is a court of an antiquity which takes it back to the period immediately following Dickens. Matters which are sufficiently distressing or inconvenient for witnesses in any circumstances become quadrupled by circumstances of that kind.
The other day my attention was directed to some horrifying aspects of a case involving a family from my constituency. The parents of a child, and the child, who had to give evidence in a case involving indecent assault on that child had to sit in the same waiting room as the man against whom the charge was being brought. They had to wait there all afternoon. The child, because of what it was alleged had happened, suffered tremendously. At the end of the day, the case not having been reached, but they having had to spend two hours in the same room as the man involved in the case, the parents rightly refused to let the case go to court on the adjourned occasion because they thought that the child had already suffered too much.
From grave cases of that kind, one goes to the other extreme and gets cases in which witnesses are put to considerable inconvenience by inadequate listing, by the fact that in many cases, particularly in country areas—and one pays tribute to the London courts, where counsel receive great assistance with regard to listing—it is almost impossible to find out when they will be wanted. It is almost as difficult for a witness to get that information as it is for an advocate to find out when his case will be heard. Very often witnesses are asked to be at a court in the depths of the country at 10 a.m., only to find, on arrival at that hour, that they are not required until some time after lunch.
The time has come when, unless the present situation is remedied, the ordinary citizen will be extremely loth to give evidence, except in a case of the most serious nature, because he is beginning to think that the whole set-up is so badly run, and so farcical that he is not really contributing to the administration of justice by attending court.
908 The matter of bail has been fully investigated today, and I do not intend to go into this issue in any detail, save as of three aspects of it about which I am particularly concerned.
The first aspect is touched on in the Motion, and it is very close to the nub of the problem with which we are faced. I am referring to the whole question of giving reasons for refusing, and explaining to defendants their position about, bail. So often one hears police objections put forward in almost time-hallowed words. The officer says that he is objecting to bail on the ground of the gravity of the offence, or on the ground that the defendant is charged with an offence which might lead to a sentence of imprisonment, on the ground—which can so rarely be substantiated—that there is a risk that he might commit further offences of the same sort.
The only real criterion to be taken into account by the courts is whether the, defendant will surrender to his recognisances, or whether there is any real risk that he will commit further offences. Over and over again, after an hour, or perhaps an hour and a half, of argument, supported by evidence, all that the bench of magistrates have to say is that they take the view that it is not right to give bail. They give no reason and no explanation for their decision.
What applies in that respect applies even more seriously to the question of costs, because here the discretion is absolute. Nothing is more damaging to the public image of magistrates' courts than the situation in which, at the end of an argument about costs, the chairman blandly announces that he is not going to grant costs because he does not think it appropriate to do so. He gives no reason for his decision, and one is left with the feeling—and this is felt particularly by the defendant—that the bench is punishing him for having been in the dock in the first place. That is the sort of thing which, particularly in motoring offences, creates a great deal of bad feeling between those responsible for enforcing the law and respectible citizens.
§ Mr. Peter Archer (Rowley Regis and Tipton)
I intervene now to give the hon. Gentleman an opportunity of dealing with this point. There is a great deal of force in what he has said, but would he accept 909 that lay magistrates are not practised in formulating their reasons, and, therefore, their reasons would not have to be criticised as critically as reasons which came from someone who was judicially qualified?
§ Mr. Money
I accept that point. In using the word "reasons" I was thinking not in terms of reasons for the Divisional Court, legal reasons, but more in terms of an explanation for its decision. It is unsatisfactory that the public should so often be left with the feeling that the decision is purely arbitrary.
The third matter about bail is one on which I have already pressed my hon. and learned Friend the Under-Secretary of State, but I propose to press him again on this occasion, and that is the question of application to a judge in chambers.
I tried a brief experiment by asking three of my hon. Friends in this House who happen to be magistrates—but not legally qualified magistrates—whether they knew—because they must, from time to time, have told defendants that they were refusing bail, but that they had every right to apply to a judge in chambers—just what was involved in an application to a judge in chambers. In each case I received the startling reply that he supposed that the defendant's representative would go off and apply to a judge somewhere. What is particularly alarming about the whole situation is that over and over again when courts shuffle off their responsibility by saying that the defendant can go to a judge in chambers they do not begin to appreciate the financial implications of that for the defendant. In this civilised day and age, I find it very difficult to understand why we have legal aid for almost every other side of the criminal law involving the citizen and not this particular aspect that goes closest, perhaps, to one of his rights, the right of not being incarcerated before trial unless there is the strongest reason for it.
It is an alarming situation, in which the smallest figure that I have been quoted, on asking my solicitor colleagues and friends the smallest amount for which this could be done, is between £50 and £60. Distinguished members of the solicitors' profession are present in the 910 House and will correct me if I am wrong in that assumption.
§ Mr. Clinton Davis
I do not want to discuss the tariff, even if there is one, but it depends very much on whether the case is of such moment that counsel is to be instructed, because obviously that would reflect on the fees involved. The hon. Gentleman's point is one of great substance. Even if solicitors find it necessary to do these cases—as they do all too frequently—for costs which are really quite ridiculous, having regard to the circumstances of the case, and they recognise that a loss must be carried, solicitors should not be placed in this position, nor for that matter should the clients.
§ Mr. Money
I am grateful to the hon. Member. That in itself is a very unsatisfactory lacuna with regard to the administration of the law. Where we have an adequate and, in many ways, admirable legal aid scheme, it is wrong that on this type of work either solicitors should be expected to carry it for their clients or that the process should be so expensive, complicated and so slow—particularly by the method of engrossed affidavits and formal application for a fixed hearing—that in many cases a defendant has to be advised that it is really not worth his while making an application to a judge in chambers.
§ Mr. Clinton Davis
Is there not also the additional point that, because of the matters to which the hon. Gentleman has referred, the formalities of the affidavit, of giving notice to the prosecution, who frequently accept short notice, an additional day has to pass before application can be made, and possibly a week? Should it not be possible to dispense with this and for an officer of the court to say, "This is what my client avers ", and to leave it like that?
§ Mr. Money
That would be entirely right, and I accept the hon. Gentleman's argument. That is at one end. At the other end is an equal complication. Supposing that a judge in chambers grants bail, an equally cumbrous process is entered into whereby the representatives or relations of the defendant then have to apply to the prison governor to get the defendant out. Very often that entails a further application, if he has been incarcerated in an out-of-London prison, to magistrates in another town 911 to get the matter dealt with, and on occasions it takes 48 further hours merely to get the order of the judge in chambers put into effect.
I turn to another aspect of representation, on which I have pressed the Under-Secretary but which again I ask him to look at very carefully once more. It is an aspect of the criminal law on which we have to be particularly careful because it affects the rights of citizens who are, as it were, foul of the criminal law in any case. It is especially disadvantageous that visiting magistrates dealing with offences committed in prison by serving prisoners should have the power to inflict what is, in effect, the equivalent of a year or more's sentence without representation and without facilities for legal aid. This is especially disadvantageous because it so often adds to the kind of bitterness that creates a situation in prisons that undoes so much of the present hard work being done by the Home Office. Again on this subject I ask my hon. and learned Friend the Under-Secretary whether he can deal with some of the matters that Members of the House will find deeply disturbing with regard to allegations made in the Press on the treatment of some young persons on remand, in custody, in Ashford.
§ Mr. Carlisle
Perhaps I can clear up that matter now. The only thing I could possibly say is that as a result of the allegations made and published, the Home Office has decided to hold an inquiry. It would be quite wrong for me to say anything at all which would tend in any way to presume the result of that inquiry.
§ Mr. Money
I am grateful to my hon. and learned Friend. I was not asking him to prejudge it. I was not aware that an inquiry had been instituted. One would welcome that as obviously a correct step to have been taken.
Probably the most important side of the Motion, which should be stressed, is that when we compare money expended on other social services, on health and on education, we are probably not dealing—even with matters as important as that—with aspects of the individual's life which are as important, or basically as long-term, in their effects as when they are unlucky enough to come into contact 912 with the criminal law. Nothing can affect a person's whole future more seriously than to obtain a criminal conviction and, in particular, to suffer a sentence of imprisonment. That alone, apart from the cost that prison itself involves on behalf of society, should cause us to look very carefully at the matters raised by the hon. Member for Hackney, Central.
On this occasion the hon. Member has called for a Royal Commission. I believe and hope that a Royal Commission is unnecessary, because the Widgery criteria and the recent reforming legislation which has been introduced over the last 10 to 15 years by successive Home Secretaries have made a situation and a system which is viable if it is administered. But the matter of concern to the House is whether the criteria envisaged by the Widgery Committee are being administered and whether, in fact, in so many cases lay justices, for the best—or, very occasionally, the worst—reasons, are applying the law as fully as they should.
§ 2.18 p.m.
§ Mr. Ivor Stanbrook (Orpington)
I ask for the forgiveness of the House for my absence from the earlier stages of the debate. I am anxious to contribute to the debate because the whole House is indebted to the hon. Member for Hackney, Central (Mr. Clinton Davis) for providing it with the opportunity of discussing what, as a general subject, perhaps is not sufficiently often discussed in the House.
I have some reservations about the possibility that a Royal Commission might be of assistance on this particular subject. One naturally turns to the Beeching Report and the subsequent Courts Bill as a model for what might be achieved for the administration of justice by the appointment of a Royal Commission. But sometimes I wonder whether it was a good model, because the administration of justice is not really a question of the application of business principles. With great respect, I do not think it was appropriate for a distinguished business man to assist in the application of new rules for the reform of the administration of justice.
Speedy justice, indeed, was perhaps what was desirable, and it was a particular scandal—if one may call it that—and one which still persists, and may 913 continue to persist, until the Courts Bill has had an effect in cutting down the lists of cases coming before the more senior courts. That scandal was dealt with adequately by the Courts Bill, but it might equally have been dealt with in other ways. I have in mind, for example, the institution of a double-shift system for courts, not merely for quarter sessions, as they are now, or Crown courts as they are to be, but magistrates' courts sitting for one session from 9 a.m. until 1.30 p.m. and for another completely different session, with different personnel, and using the same court buildings, from 1.30 to 6 p.m.
It is perfectly possible for that system to be used whereby the acute shortage in our administration of justice—the shortage of buildings, facilities, equipment and trained staff—can be utilised more efficiently than it is now on the 10.30 a.m. to 4 p.m. principle.
The reason for my absence this morning was partly due to the fact that I was appearing before the chairman of the North-East London Quarter Sessions at 10.30, when he swore in a number of new justices of the peace. After being sworn in, they gave their oath of allegiance and then took the judicial oath. That judicial oath is worth repeating. I am sure that those who took it this morning appreciated it and were sincere and realised its gravity. They said that they would… well and truly serve Her Majesty in the office of Justice of the Peace and will do right to all manner of people after the law and usages of this Realm, without fear or favour, affection or illwill.That is the oath which has been taken by innumerable judges and justices of the peace down the ages; which has secured for us a system of justice in this country which is, perhaps, unparalleled. We do not realise how lucky we are in this country to enjoy such high standards. Even more probable, is that the people of this country do not realise how much they owe to lay magistrates—the men and women who, unqualified in the legal sense, are prepared to give their time and trouble to the task of adjudicating in the magistrates' courts. They deal with something like 90 to 95 per cent. of all criminal cases. They do so on an unpaid basis—one could almost say that we in this country get our system of justice on the cheap. We would have to pay a lot 914 more if, as some people suggest, we did without lay magistrates and imported only professionally qualified people.
It is necessary to make the point that we are served admirably by such people. Having said that, however, I ought to add that magistrates' courts fall into error from time to time in individual cases. There is perhaps cause for criticism with regard to the way in which trials are conducted, and, in particular, the comparatively poor facilities offered by the clerk. An appeal is by way of a rehearing, and very often, in a number of cases, that is the first time the merits of the issue are properly ventilated.
After that point, there is no appeal, except on a point of law. It follows, therefore, that it is essential for us to obtain as efficient and fair a system of justice as we can at magistrates' courts level, otherwise injustices will be perpetuated.
It has been said that stipendiary magistrates provide better judges, that they are quicker and more efficient. They are also much more expensive. One respect in which we could improve the quality of the magistrates' courts straight away is by raising the standards of the clerks. Their qualifications are most important and, with respect, insufficient attention has been paid to their training and qualifications. After all, they advise the justices on the law: if there is a point at issue and the defendant is represented by counsel as is the prosecution, someone has to have a knowledge of the law for the resolution of that issue. It has to be the clerk. He acts as a sort of judge, akin, perhaps, to a Judge-Advocate in a court-martial.
There are some hair-raising stories that I could tell about occasions when young, inexperienced clerks have been called upon to advise upon the law, and two distinguished members of the Bar have been tilting at each other about it. I would submit that a minimum legal qualification is desirable in all clerks before they sit in magistrates' courts. Their status should be fixed, and they should be paid accordingly.
With regard to the position of magi-states themselves, I would submit that a clearer definition of their powers is required. They have a tremendous task. Stone's Justices' Manual, which is their 915 bible—two volumes, 5,000 pages, £10.50p—is indispensable to them. It is a miracle of compression, but it is perhaps not fair to expect them to be able to find their way through it without proper assistance from the clerk. We need, in other words, a criminal code for effective justice. That can be obtained with some modification of the position of the clerks and surrounding conditions which apply to magistrates' courts.
The status of justics of the peace has been referred to by the hon. Member for Hackney, Central. It is an honorific title and an honourable one. It gives power over one's fellow citizens which, perhaps, is a corrupting influence unless there is great integrity. No qualifications are laid down for being a justice of the peace. There is no way of training oneself for the post of justice of the peace that is formally accepted or recognised but character and personality of the individual are perhaps most important.
Juries in some ways are more heavily circumscribed than justices of the peace. The question is how to promote among them that quality of judicial detachment which is such an outstanding quality of the best judges.
If judges and justices of the peace are fair and firm, they will give Great Britain a great bastion of decency and make a contribution towards the quality of our life in these permissive times. It was often said of the late Lord Goddard that he was a great judge as much because of his public personality as because of his professional qualities, for he looked, spoke and behaved like a great incorruptible British judge. If justices of the peace will take him and those qualities for their model, they will do a service which will put us all in their debt.
§ Mr. Abse
I am sure that we do not want to have the controversy in The Times spilling over into the House, but, when the hon. Gentleman makes provocative remarks like that, I must say that, for my part, whatever qualities there were—and there were many—to emulate in the late Lord Goddard, I very much hope that justices do not follow his sentencing policy.
§ Mr. Stanbrook
I can accept that from the hon. Gentleman. There are differ- 916 ences of opinion about the sentencing policy adopted by that great judge. I still maintain that in many respects he was a great model which could well be followed by justices of the peace.
What I am trying to say about justices of the peace—perhaps I ought not to use these words—is that there should be less pomposity about them and a little more pomp. A good J.P. should be mature, worldy-wise and intelligent. Perhaps such a person does not need training, except in procedure. A bad J.P. no amount of training will cure.
I submit that the true function of the justice of the peace is to administer the law on behalf of society, with the maximum of common sense, a sense of fair play and a spirit of public interest, in a manner which can be understood by his fellow citizens. Most of our justices are doing just that. I welcome what the Government are doing to inquire into the future arrangements for training and for qualifications, and for the improvement of the system of magistrates' courts generally.
§ 2.33 p.m.
§ The Under-Secretary of State for the Home Department (Mr. Mark Carlisle)
I join in what has been said by all who have spoken in the debate so far in congratulating the hon. Member for Hackney, Central (Mr. Clinton Davis) on choosing this Motion for debate when he had the good fortune to come out first in the Ballot. Perhaps I may be slightly more objective than some hon. Members who have taken part and say that I congratulate him not merely because of the kind remarks he made about me. Indeed, in many ways I should have been relieved if he had not chosen a Home Office subject, for I should not then have had two consecutive Fridays—I think that it will be three by next Friday—on which I had to speak at this Box.
The hon. Gentleman has given us a well worth while opportunity to have a wide-ranging discussion about the rôle of the magistrates' courts, a discussion covering problems of legal aid, important problems of bail, questions of sentencing policy, conditions in our prisons and, indeed, even probation officers' pay. It is useful that we should have this debate in which all who have taken part on both sides have been able 917 to speak from close personal knowledge of the issues involved. I shall try to deal with the separate points which the hon. Gentleman has listed in his Motion and say something about the Government's attitude to them, but before coming to that—I hope that the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) will not think that this is the start of a fobbing-off speech, or whatever his phrase was—I must say something about the opening words of the Motion which specifically call for the setting up of a Royal Commission.
I do not doubt that many of the matters raised today need inquiry. I hope to show that many of them are being inquired into by the Government and various committees at this time. I do not doubt that a great many of the matters raised regarding legal aid, bail and conditions in our prisons are matters which cause concern and may well need administrative decision. What I do doubt—I suspect that, in a sense, the call for a Royal Commission was used as a peg on which to hang the debate—is whether a Royal Commission to inquire into the matters covered by the Motion and, more generally, into the administration of the magistrates' courts is necessary or desirable at this time.
The purpose of a Royal Commission is to ascertain facts. A body of highly respected persons is called together as a Royal Commission to ascertain the facts on some social problem or aspect of life. Here, however, the facts are, to a large, extent known. We know the problems in the administration of the magistrates' courts. We know the figures regarding bail and the figures regarding legal aid. We know the condition of our prisons.
What is needed is not a wide-ranging Royal Commission inquiring and ascertaining facts and, perhaps, taking years to report. What is needed on almost every aspect of these matters is consideration and decision. It must be a political decision, a Ministerial decision, based on facts which are largely known.
Therefore, I resist the call for a Royal Commission not because I doubt that there are matters which need review but because, where inquiry is needed, that inquiry is largely under way, and on many of the questions raised the need is not for inquiry but for decisions if changes 918 are called for on the basis of facts already known to the House.
I come now to the question of the future organisation of the magistrates' courts. The Home Office is at this moment in consultation with the Lord Chancellor to consider the future organisation of the magistrates' courts. This inevitably arose out of the work of the Royal Commission which inquired into the assizes and higher courts—the Beeching Commission—and the implementation of its recommendations in the Courts Bill.
I know that it was argued by certain hon. Members on both sides during the passage of the Courts Bill that we ought in the same way to have a Royal Commission on the magistrates' courts. But it was the view of the Home Office and the Lord Chancellor's Department that the problems in the organisation of the magistrates' court are much less complex and far less fundamental than the problems which had grown up over many years in our system of assizes and quarter sessions, and that to refer the question of the magistrates' courts to a Royal Commission was unnecessary, the need being for consideration of their organisation by Government Departments.
To that end, we have sent out to the organisations which we believe to be interested—the Magistrates' Association, the Justices' Clerks Society and all those directly concerned with the administration of the courts—a memorandum which attempts to set out the case as we see it either for a Beeching-type reorganisation, that is, bringing the whole of the magistrates' courts under a centralised system, or for leaving the magistrates' courts from an organisational point of view very much in the position they are now, with their roots much more in local areas than in a national system, though with the implication and acknowledgement that if we do that there remain nevertheless certain minor matters which probably require to be rectified.
The paper sets out, without commitment and without indicating a view, the arguments as seen by the Government in favour of remaining local and the arguments for moving over to a centralised system for the magistrates' courts. We have invited the bodies concerned to give their views to the Home Office by the end of September. It would not be right 919 for me, therefore, to attempt to prejudge their views now, when we have deliberately not put forward any view in the paper save to say that the Home Office believes that there are merely the two alternatives, either very much a system based on local areas such as exists at the moment or a complete change to a centralised system.
I come now to the individual matters raised in the Motion, and I take, first, the rôle of lay justices. I emphasise at the outset, as did the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) and my hon. Friends the Members for Preston, North (Miss Holt) and for Orpington (Mr. Stanbrook), the appreciation felt by both sides of the House for the immense amount of work done by lay magistrates. As the right hon. and learned Gentleman reminded us, 98 per cent. of criminal cases are dealt with in magistrates' courts, and, on top of that, they have fairly substantial civil and domestic jurisdictions and responsibilities.
That we manage in this country to run a system in which the vast bulk of the administration of justice is done, and done successfully, by people without legal training working voluntarily for society is a great credit to our society and a great credit to those who take part as justices of the peace.
I am glad that at the beginning of April this year we were able to implement the recommendation that we should provide a loss of earnings allowance for justices. Unpaid lay justices have an important part to play. I accept what the right hon. and learned Gentleman said, that they must be well trained and have the opportunity of attending courses and meetings, but the important requirement is that they should represent a cross-section of the society in which they are called upon to sit in judgment. It is important, therefore, that a loss of earnings allowance should be available to those who are willing to take part in this valuable work so that they may serve the community without intolerable financial sacrifice to themselves.
I remind the House that when the Royal Commission on Justices of the Peace reported in 1948, it referred to the 920 Lord Chancellor of the day and expressed the view that he wasin contestably right in saying that it would be impossible to find a sufficient body of persons equipped with knowledge of law and, what is certainly not less important, a judicial temperament and knowledge of the world, to provide the large body of stipendiary magistrates which would be required if the suggested changeto wholly stipendiary magistrateswere made,The Royal Commission also observed:Apart from this practical consideration the present system is to be commended because, like that of trial by jury, it gives the citizen a part to play in the administration of the law and prevents the growth of a suspicion in the ordinary man's mind that the law is a mystery which must be left to a professional cast and has little in common with justice as the layman understands it.That was the view expressed by the Royal Commission. It is the view which, I believe, has been shared by Governments of all political persuasions since that time: that although, clearly, there is an important place for the stipendiary or metropolitan magistrate, it would be impossible to move entirely to a system of stipendiary magistrates and that, indeed, there are strong arguments for retaining a lay element on the bench.
Although I often argue the case, which, I know, the hon. Member for Hackney, Central supports, for the idea of a few more stipendiaries on a peripatetic basis—there is much to be said for that; I believe that in answer to a Question from the hon. Member, my right hon. and learned Friend the Attorney-General said that this matter would require legislation, but it is the sort of matter which at some stage might have to be considered—we should never underestimate the work done by lay justices.
I turn, therefore, to the question of matrimonial jurisdiction, whether it is right that lay justices should have civil and matrimonial jurisdiction and what we are doing about the family courts. I had a great deal of sympathy with the view which the hon. Member for Pontypool (Mr. Abse) summarised by saying that those who go to a domestic court for a domestic matter should not feel that they are going into the atmosphere of a criminal court as persons charged with an offence. That is something that we would all echo.
921 The hon. Member asked specifically what was happening about the matrimonial jurisdiction of the magistrates' courts. As he knows, the alteration of the law as a result of the Act with which he was very much concerned in its passage through the House has made it necessary for us to look at the law and procedure as it applies to matrimonial cases in magistrates' courts. As the hon. Member mentioned, the process of deciding what equivalent alterations are needed in the law and procedure in magistrates' courts has been undertaken by the Law Commission, and the Law Commission and the Home Office are currently engaged on a review of matrimonial jurisdiction of magistrates' courts.
I would go further and remind the House, as did the hon. Member, that it is part of the Law Commission's second programme of law reform to consider the possibility of constituting new courts with jurisdiction in family matters. I am sure that anyone who has taken part in debates of this sort has read with interest the views expressed from time to time on the possibility of a system of family courts. We have that review in progress.
As the hon. Member reminded the House, a Committee under the chairmanship of Mr. Morris Finer, Q.C., the terms of reference of which refer to one-parent families, is considering the whole question of maintenance and problems arising out of affiliation proceedings and the maintenance of children whose parents are separated. In addition, as the hon. Member said, we have the Houghton Committee looking at the question of adoption. That Committee has already produced an interim working paper and is now receiving comments on its interim proposals.
Therefore, as I said in an interruption, I do not believe that anything would be gained by superimposing a Royal Commission on top of those inquiries. All I can say is that the findings of those three different inquiries are bound to be relevant to the setting up of family courts. I think I can say without hesitation that when we have had the final recommendations of those committees we must consider what their effect will be upon the matrimonial jurisdiction of magistrates' courts and whether a fundamental alteration is needed in the form of court trying that kind of action. It would not, how- 922 ever, be right to take any steps to do that until we have received the reports of those three committees.
§ Mr. Abse
I am obliged to the Under-Secretary for adumbrating the position, but some of those committees will report much sooner than others and some may take a very long time. What, I think, troubles everyone concerned is that there does not appear to be a specific programming and that the matter is being left, as it were, without all the strands being brought together. Can the Under-Secretary help a little about this?
§ Mr. Carlisle
I will try to help a little. The Houghton Committee on Adoption should make its final report reasonably soon. I hesitate to give a date without being absolutely sure, but it has produced its interim report and has invited comments upon it. The whole idea of the possibility of constituting new courts in family matters is within the second programme of the Law Commission. I cannot indicate when the Finer Committee will report, although I understood that it was well on with its work and was looking into the financial and other hardship of one-parent families. However, I accept the valid point made by the hon. Member that we should also look overall at the effect that the individual recommendations of those committees may have on the argument which has continued for a long time about family courts. It raises not only Home Office matters but matters for other Departments. I do not think we can look at this issue in advance of getting the individual results of the various committees.
I now turn briefly to the last of the hon. Member's points about measures to ensure that courts provide reasonable and comfortable facilities. As I am sure the House knows, the Justices of the Peace Act, 1949, places the major responsibility for deciding what kind and size of magistrates' courts should be built on magistrates' courts' committees, which are, of course, elected from among the magistrates of the area. Local authorities are then required to provide whatever accommodation a magistrates' court's committee decides is necessary, subject to the right of appeal to the Home Secretary. The Home Office administers the grant payable under Section 27 of the 1949 Act towards the expenditure of 923 local authorities on magistrates' courts, which amounts in practice to about 80 per cent. of the total expenditure.
It is true that during the last few years there have been hesitations and delays in new court buildings pending the outcome of the Beeching recommendations and their likely effect on the siting of quarter sessions and assizes in certain towns. I remind the House, however, that expenditure on magistrates' courts buildings is now running at about £5 million a year. It is likely to rise to about £9 million a year by 1975–76. Of the 1,000-odd magistrates' courts buildings, about 100 have been built in the last 10 years and many more have been extended or improved.
My only comment is this. It is often argued—I heard the right hon. and learned Member for West Ham, South argue it many times on the Courts Bill—that the standard of magistrates' courts is such that they should be improved and that the suggested way to improve them is to have a central courts system such as we are now having for the higher courts.
It may be true in London that one can point to county courts and say how good they are and to magistrates' courts and remark how poor they are, but I believe that in many parts of the country—certainly Lancashire, which I know well—the reverse would often be the case. The fact that the local authority, and civic pride, is involved often leads to the building and provision of better magistrates' courts than the county courts which are provided by the central Government. It is, therefore, an open argument whether anything would be gained in the type of buildings to be produced by changing the organisation.
Whilst in a busy town we should, of course, ensure that the courts, while not being lavish, are wholly adequate to their purpose, it must be remembered that a great deal of local justice is, indeed, local. When the desire to sit locally means that a court building is used only one or two days a week, we have to bear this in mind in deciding the type of modern building that may be provided for the trial of cases in the area.
Two other major matters which have been raised on the Motion are bail and 924 legal aid. First, bail. Mention has been made of the number of unsentenced prisoners who are at any time in prison, the average number of male unsentenced prisoners held at any one time is now 4,400, or slightly over 10 per cent. of the prison population. I concede at once that this problem is in many ways concentrated in the area of the prison population where overcrowding is worst, in the remand centres and the local prisons.
That figure compares with only 2,981 in 1968. Before anybody imagines that this shows an alarming increase in the number of people remanded in custody, however, the two figures must be looked at in relationship to the percentage of those remanded either on bail or in custody. Although the number of unsentenced prisoners in custody on remand at any one time has risen to 4,400, the percentage of remands in custody compared with remands on bail has fallen during the equivalent period.
Two matters are involved when we discuss bail or the number of people in prison at any one time. One is the number of people on remand and the other is the length of time for which they are remanded before being sentenced. Both these factors have an effect on the daily prison population.
As regards the length of remand—both my hon. Friend the Member for Ipswich (Mr. Money) and my hon. Friend the Member for Nottingham, South (Mr. Fowler) have mentioned this—I would point out that the answer to this is to attack the delay in the courts system. I, and, I believe, hon. Members opposite, believe that the implementation of the Courts Act should help in reducing the delay in time in awaiting trial, which will reduce the length of time that people remain in custody awaiting trial. That is one thing.
The other point is the question of those who are remanded for reports. It has normally been the practice, I think, to remand for report—medical, social or psychological—if the remand has been made in custody for a definite period, which usually, I think, is three weeks. We believe that administrative measures can be taken for speeding up the provision of reports required by the courts and, as a result of this belief, a circular to clerks of courts was issued 925 on 14th May of this year to the effect that when a defendant has been remanded in custody for a medical or psychiatric report, the governor of the remand centre or prison should notify the court when the report is completed with a view to bringing forward the adjourned hearing or, alternatively, to consider the release of the defendant on bail until the date when the proceedings are to be resumed.
It was drawn very much to my attention when I visited Ashford Remand Centre that when a person was remanded in custody for a report, not only could the report be made available within the 21-day period, but often, on appeal to a judge in chambers, the judge had allowed bail from the moment when the report was completed.
We are, therefore, suggesting to clerks of courts in this circular that arrangements should be made for the governor of a remand centre to notify the court when the report has been completed with a view to bringing forward the date of the adjourned hearing or, alternatively to consider the release of the defendant on appeal until the date when the proceedings are to be resumed.
The next matter with which we are dealing by administrative action concerns bail hostels. Negotiations are in train for the establishment, on an experimental basis, of a bail hostel for defendants on remand who would otherwise be refused bail because they have no fixed abode, and the Chief Metropolitan Magistrate has indicated his willingness to co-operate in any such scheme.
When one is dealing with the period of time that a person spends in custody awaiting trial or sentence—not the overall numbers but the length of time spent by the individual in custody—one becomes convinced that a great deal of this problem is tied up with court procedure. A meeting was held last February with representatives of the London judiciary—the Bar, London solicitors and members of the probation service of the Inner London courts—at which it was agreed that remand procedures should be explored in more detail by the courts and practitioners, and a further meeting will be held in due course to take stock of what has been achieved.
926 For too long we have ran our procedure without taking account of the effect it has on the remand population. We are anxious to do something about this now. We want to see whether we can also alter some of our court procedures so as to reduce the period spent by anyone in prison pending appeal.
It is right to say, as has been pointed out in the debate, that of those who are refused bail, under half subsequently receive a custodial sentence. I repeat what I pointed out in an intervention, that it is important to remember that many of them are remanded for the purpose of reports, and these reports may enable courts to decide not to impose custodial sentences.
I appreciate the question that has been asked: why need they be remanded in custody? We have gone into the question whether medical reports could be provided without remand in custody, but we believe that difficult practical problems would be involved in requiring a person to report to a National Health hospital, where the delay and queue could be even worse than it is in the remand centre. We feel that it is better to approach this by trying to speed up the provision of the reports and by providing means by which the person concerned can be referred back to the court rather than attempting the provision of the medical report without any custodial remand at all.
There is also the matter of those who are remanded and get acquitted. I think this is inevitable. There will always be some who are remanded for proper reasons and are later found not guilty of the charge on which they have been remanded. I am not surprised at this. I think this comes back to the point that I made earlier about tackling the question of delay between the date of remand and the date of trial. However, I think that the discretion to give bail rests in the court.
I am sure that people will have noted the concern which has been expressed today about the proportion of remands in custody. I remind the House that, on the other hand, it has been said that there is equal concern among the police about those who are released on bail and then commit other offences in the period before their trial. This must be a matter for the individual court. But 927 I hope that by the administrative methods that are being adopted we shall manage to reduce the periods which people spend in custody awaiting trial and, indeed, reduce the numbers failing to obtain bail.
I was asked specifically whether or not we were satisfied that the mandatory provisions of the 1967 Act, relating to drawing the attention of the individual to his right of appeal, are being successfully worked by the courts. All I can say is what I said before, that the matter is being further considered by the Magistrates' Association and, if necessary, a circular will be issued.
§ Mr. Fowler
Am I not right in saying that at present the figures show that the numbers who actually jump bail are remarkably few? I believe that a very small percentage does that. Will my hon. and learned Friend also say something, before he leaves this point, upon whether more information can be provided on the background of people who will be concerned with bail, and also about the facilities in prisons, particularly visiting facilities for relatives of prisoners held on remand?
§ Mr. Carlisle
As to visiting facilities, my hon. Friend has raised rather a different point. I have not had notice of it. As he knows, those on remand are entitled to wider visiting facilities than those who have been sentenced. Inevitably there has to be some limitation on the period of visits, due to the problem of overcrowding and staffing in the remand centres, but it is a matter at which we are looking. We have opened Latchmere House as an adjunct to Ash-ford Remand Centre in order to reduce the degree of overcrowding which exists in remand centres.
I must reiterate that whilst I am sure that all those concerned will take note of what has been said in the debate, it is not the duty of the Home Secretary or, indeed, of the Home Office to attempt to direct courts on how they should exercise discretion in individual cases. It is, of course, the duty of the Home Office to see that the requirements of the 1967 Act are being carried out, and, as I say, we shall consider issuing a circular on that matter if we decide it to be necessary.
928 May I now move to the question of legal aid in applications for leave to appeal to a judge in chambers against refusal of bail? I must adhere to what I said in the debate on 12th December last year. I would, however, point out that everyone who has spoken has ignored one important factor, which is that under the Courts Bill in future anyone who is committed for trial to a Crown Court will have the right to apply for bail at once to the judge of that court. That application will be covered by the legal aid certificate. If anyone has been granted a legal aid certificate on committal for trial, it will cover an application on his behalf to the judge of that court for bail. So I think that this point is largely met.
Civil legal aid is available to anyone wishing to pursue an appeal to a judge in chambers. Those who are not represented are assisted by the Official Solicitor, who puts their application for them. I accept at once that research has shown that the figure of successful applications is higher among those who are represented before a judge in chambers than among those unrepresented.
§ Mr. Clinton Davis
When does the hon. and learned Gentleman expect the deliberations of the Magistrates' Association to be completed? Does he expect that he will make a statement consequent thereon?
§ Mr. Carlisle
I should not have thought it a matter justifying a statement to the House. Obviously, the Home Office will decide, having consulted the magistrates, whether further guidance and reminder to the courts is necessary.
On the question of legal aid, concern has been expressed about the book "Silent in Court" by Mrs. Susanne Dell. The book was published on the basis of information derived by Mrs. Dell in 1967 from a research project financed by the Home Office. The figures she quotes relate to the population of Holloway in 1967, just before the passage of the Criminal Justice Act and before the recommendations of the Widgery Committee on the granting of legal aid could have any effect. Therefore, although I accept that the figures make disturbing reading, they relate to a period since when we have had the Criminal Justice Act and the implementations of the 929 Widgery Committee's recommendations on legal aid. That is a very important consideration.
Over recent years the grant of legal aid in the magistrates' courts has increased substantially. In 1966–67, the last financial year before the introduction of the 1967 Act, expenditure was about £550,000. In the calendar year 1966, 41,209 applications for or offers of legal aid were made, and 30,407 defendants were legally-aided. Expenditure in the year 1969–70 has risen to £1.8 million, and in the calendar year 1969–97,604 applications were made, of which 83,755 were granted. There is no doubt that far greater use is being made of legal aid in the magistrates' courts than a few years ago. Those figures included committal proceedings. Legal aid was applied for in summary trials in about 69,000 cases and was granted in 56,000; roughly 80 per cent. of the applications are granted.
§ Mr. Carlisle
The right hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) said when he was Home Secretary that he proposed formally to commend the Widgery recommendations to the courts, but the last Government did not do so. I stand by my statement last December, that we believe that the criteria of the Widgery recommendations are well known to the courts. In so far as they are not, we will see whether we believe that any further guidance is needed.
The last question was on sentencing policy. I cannot accept the use by my hon. and learned Friend the Member for South Fylde (Mr. Gardner) of the word "disaster" to describe the suspended sentence. That was an overstatement. It is true that suspended sentences have not led to the automatic and sustained reduction of the prison population that might have been expected. It is clear that their introduction has led to a significant increase in the use of imprisonment by the courts. If we take together immediate imprisonment and suspended sentences, are are driven to the conclusion that, despite the advice of the Lord Chief Justice, the courts did—though I believe that this 930 is now changing—certainly in the early days, give suspended sentences where, but for their introduction, they would not have imposed sentences of imprisonment. It is equally clear that they are perhaps not quite so careful over the length of sentence they impose when they do not see the accused person immediately go down the stairs from the dock to be taken to prison. From our estimates it appears that about 42 per cent. of all suspended sentences are likely to be activated during the period of the suspension.
My right hon. Friend the Home Secretary has made clear on many occasions that he is well aware of the feeling on the mandatory provisions. He has said that he is giving the matter consideration with a view to possible legislation.
Although I have spoken for rather a long time, I am conscious that I have not answered many of the points raised. I will end by taking up the comment by my hon. Friend the Member for Nottingham, South and my hon. and learned Friend the Member for South Fylde that there is need for a great deal to be done in the penal field, on sentencing and the condition of our prisons.
I remind the House that we are now engaged on the biggest prison building programme ever. We have 20 major schemes on the drawing board. We are also considering alternatives to imprisonment as a means of punishment available to the courts. I hope that as a result of what I have said in reply to the debate—which I appreciate has been wide-ranging—the hon. Member for Hackney, Central will feel able to ask leave to withdraw the Motion.
§ 3.18 p.m.
§ Mr. Peter Archer (Rowley Regis and Tipton)
I begin by adding my voice to those of hon. Members who have expressed the gratitude of the House to my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) for initiating this debate. His good fortune in the Ballot was the good fortune of the House and of all those who have to do with magistrates' courts.
It has been 23 years since the last Royal Commission on this subject, and the intervening period has seen many social changes. I was therefore rather puzzled by the comment of the hon. 931 Member for Preston, North (Mrs. Holt) that a further inquiry would be premature although I hasten to say that I take the other objections to the Royal Commission mentioned by the Under Secretary and other hon. Members.
Clearly at the moment we have a great deal of information available. I certainly join with the Under-Secretary in voicing the opinion that our function is no longer to understand the world but to change it.
I agree with the hon. Member for Nottingham, South (Mr. Fowler) who expressed some disappointment at the fact that he was the only non-lawyer to take part in the debate. We ought to remember that what my hon. Friend is asking for is not better conditions for the legal profession, but a better deal for the general public. It is a great pity that debates of this kind are confined to lawyers. We should all benefit from the views of some of our non-legal friends.
The hon. Member for Ipswich (Mr. Money) pointed out that this debate is all part of the general insistence that the activities of lawyers should be judged not by standards of abstract jurisprudence but whether they meet the needs of the public—and by "public" I mean not only defendants and litigants but witnesses, practitioners, probation officers, and all those who, in the words of the traditional formulahave anything to do with my Lords the Queen's justices".If we do not pay attention to those needs, the standard of justice itself will suffer.
In some courts lists are compiled on the assumption that no matter who may be kept waiting—litigants, witnesses, experts, doctors, probation officers and practitioners—there is one fundamental principle to be followed, namely, that never, in any circumstances, should there be the remotest risk that the court will be kept waiting for five minutes. That situation must be remedied, especially since in many such courts those who are kept waiting—no matter what their business—have to stand huddled together in some kind of passage outside the court. If we insist on treating people like that it will be difficult for us to persuade the general 932 public that they should pay for the benefits of a sound legal system by being prepared to come forward as witnesses.
It is true that there are all sorts of difficulties about accommodation. These have been exacerbated by the general increase in crime and the proliferation of such implements of crime as the motor car. But even within the existing accommodation, a little more imagination could sometimes be used. At the moment those who are concerned with the criminal list and those who are concerned with domestic or family jurisdiction are compelled to wait together, so that they feel, in a sense, all tarred with the same brush.
In many courts separate accommodation is available, and is used for domestic, juvenile and family jurisdiction. One example of such a court is in Dudley, Worcestreshire, in my own area, where I was discussing this problem with the clerk last week. If this could be formalised a little and we could set up courts that, if not yet family courts, were at least domestic courts—like Walton Street domestic court in London—these administrative difficulties might be overcome.
I was pleased to hear from the hon. and learned Gentleman that the Home Office is considering the question of the organisation of magistrates' courts. I hope that he will have in mind the question how, for all legal purposes, court accommodation in any one area can be shared so that one courtroom does not stand idle for two or three days while, somewhere else, another court has to sit in an ante-room in a town hall, or in what appears to be a converted lavatory. And I agree that, in many areas, county courts suffer from the same deficiencies of accommodation.
I have no doubt that the Home Office is keeping in mind the scheme that originated in the School of Architecture at the University of Birmingham, for purpose-designed court buildings to accommodate all the legal functions in an area. If the hon. and learned Gentleman is not aware of that project, I shall be happy to have a word with him after the debate, because it deserves more study.
If the participation of the public is to be maintained the importance given to appointments is very important. I agree with my hon. Friend about the lay 933 magistracy. If it is any comfort to the noble Lord, Lord Merthyr, I can tell him that he is not alone in his conversion to support for the lay magistracy. There was a time—as those who care to look up some of the speeches that I made years ago may be interested to see—when I wanted to see it abolished. I am now convinced that if we were to abolish the lay magistracy we should lose not only the services of many able and dedicated people anxious to do justice, and to sacrifice themselves in the process, but a very important element of representation within the framework of the legal system of the non-legal public. It is important that we should have this element, which has been described as a mirror of the community, because it provides an element of public scrutiny of the habits of lawyers.
But it is important that the lay magistracy, if we use this as justification for it, should in fact be representative. We on this side of the House take pride in the fact that over the last 10 years it has become more representative. Ten years ago there were justices in many areas which had not altered greatly since the days of Chaucer's justice of the peace of whom he wrote:As noted as St. Julian was for bounty He made his household free to all the county …And in his hall a table stood arrayedAnd ready all day long, with places laid.As justice at the Sessions none stood higher;He often had been member for the shire….As sheriff he checked audit, every entry,He was a model among landed gentry.That picture has, happily, changed over the last 10 years.
However, as my right hon. and learned Friend said, a broad social background is no substitute for the criteria set out in the 1948 Report, namely, the capacity for doing the job in terms of character and intelligence. We believe that this has been achieved to a remarkable degree. Even if I did not believe that, I hasten to add that self-preservation would compel me to say it. Like my hon. Friend, I have a wife who is a justice of the peace and who makes a practice of reading my speeches. However, I can say it with a clear conscience because it is something which I genuinely believe.
We have shown over the last 10 years, if not earlier, that these qualities are not 934 the monopoly of any one group or class. As the Under-Secretary said, the quality of appointment can depend only on the people who make the recommendations. But perhaps something can be done to improve the general practice.
And tribute should be paid to my noble and learned Friend Lord Gardner for some some of the reforms which were mentioned by my right hon. and learned Friend the Member for West Ham, South. For example, there was the abolition of ex officio justices. Even now we sometimes welcome the appointment of those who hold civic office, but they now serve at their own wish and on their own merits.
There was the establishment of retirement at 70. In consequence, some good and capable magistrates have been lost. But I hope that they will feel comforted by the reflection that at least they went when their going was regretted. Perhaps the most that can be hoped for any of us is that we shall retire while we are still alert and capable, rather than wait until we ourselves are persuaded we are no longer so.
There was also the extension of training for magistrates. Nowadays, com-monsense may still be essential, but it is not a substitute for knowledge of the broad techniques of justice.
My hon. Friend the Member for Hackney, Central took many of his examples from London. As a provincial Member perhaps I might be allowed to say that not all the same criticisms could have been made if he had taken a wider cross-section. Certainly in many areas, both justices and magistrates' clerks are concerned to point out that London standards are not necessarily typical. Practices vary from area to area. When the Home Office is considering this matter, it should not be too reluctant to consider the virtues of local justice. If standards vary, that is not accidental. It is a direct consequence of making justice truly local and adopting it to local conditions. In my area many justices of the peace—some of them among my own friends—have earned their places because they truly mirror the ordinary Black Country people, with their many virtues and occasional vice. It is neither surprising nor worrying if they stamp their personalities 935 on the courts, provided that they are restrained by training and judgment.
The third requirement,—and I hasten to say that I shall not take up many more of the diminishing moments of this day—if public involvement is to be meaningful, is intelligibility. I sometimes have the view that the procedure of our magistrates' courts is not designed to emphasise to those who appear there as defendants or litigants that they are being tried by their peers, who are really representative of the general public. Of course it is necessary, in procedure, that there should be a measure of respect and decorum, but the purpose of legal procedure is to ensure that everyone is assured of a fair hearing, not to petrify people into silence.
That depends partly on the care and sense of fairness of those who conduct the proceedings, to make sure that litigants understand what is happening and are given every opportunity to express themselves (which may be another argument for shortening the lists). For many people articulation is often difficult, but sometimes when it comes it comes with blinding clarity.
I cannot resist the story which Sir Gervais Rentoul, a distinguished London magistrate, told against himself, of a case that he heard about six weeks before Christmas. A little man was brought up for picking pockets. He obviously thought that if he relapsed into silence he might get away with a month's sentence, so nothing that was said to him could induce him to produce more than than a shake or nod of the head. Completely inarticulate, he left the dock a sad man, because the learned magistrate took the view that he required a sharp lesson after so many previous convictions, and sentenced him to imprisonment for three months. There was a slight commotion at the door, and the officer said, "The prisoner wants to make an application, Sir". Being a fair man, the magistrate insisted on having the defendant brought back to the dock and said kindly to him, "Is there something that you want to say to me?" Again struggling for words, the defendant said, "Yes, beg your pardon, Sir, but are you hoping to have a Christmas dinner this year?" Puzzled, the benign magistrate said that he was, 936 whereupon the little man, finding the words for which he was seeking, said, "I hope it ruddy well chokes you."
The existence of lay magistrates encourages the profession to make legal jargon intelligible to the layman, and perhaps in the process to ensure that it relates to the real world. We ought to welcome an understanding public and its criticisms.
I now propose to say something about legal aid. Perhaps the Minister will make representations to those who manage these affairs that on some occasion we ought to have a much more extended debate on this subject than we have had today. It is true that, here again, we have a great deal of information already. It is probably fair to say that the information collected by Mrs. Dell relates to 1967, but there has been more disturbing recent information, particularly from the survey of legal aid in criminal proceedings carried out by the Institute of Judicial Administration of Birmingham.
In 1969, that Institute surveyed applications for legal aid in four courts in the West Midlands. The percentage of refusals respectively in those four courts was 60, 3, 36 and 15. I find it difficult to believe that local conditions or requirements should have varied quite to that extent.
I have two comments to make about legal aid. First, however we decide its availability, it ought not to be conditional on any plea of guilty by a person who, by definition, has not been tried. Second, it ought to be reviewed in the context of all the obstacles which already stand between the layman, struggling with legal difficulties, and his access to advice. It should take account of districts in which there are no practising lawyers, or none practising in the subject about which he requires advice, where it is necessary to cross frontiers into middle class areas to consult a solicitor. It should take account of the feeling that a lawyer belongs to a different class, and that if one wants to consult him, one must wear one's best suit.
Those are some of the matters which the Minister will recollect we reviewed in the Fabian Society publication, written by the Society of Labour Lawyers, "Justice for All". We have a 937 good system of magisterial justice of which we have a right to be proud, but it is not beyond improvement, and it is not incapable of occasionally perpetrating a grave injustice. It is true that a number of committees are considering various aspects of the matter, but one would have thought that there was some requirement for a long, hard look at the whole operation of the magisterial system. One hopes that it will certainly be hard, but not too long.
§ 3.35 p.m.
§ Mr. Clinton Davis
I shall not detain the House for more than two or three minutes. I thank the House for the kind remarks about the Motion. The only thing that concerns me, as it concerned my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer), was that we had the participation of only one lay Member in a matter which so vitally affects civil liberties generally. That is a very sad thing. It was true also of the Courts Bill. Members who are not lawyers ought to address their minds to the point made so forcibly by my hon. and learned Friend, that these are matters which go far beyond the interests of lawyers. As lawyers, we are proud to be concerned in these matters. Sometimes we have an unfortunate image painted of us by the public. To the extent that we are all interested in these matters, perhaps that image may be a little better in future.
I apologise to the hon. Member for Nottingham, South (Mr. Fowler), whose speech I missed. I made apologies to a number of other hon. Members before I was obliged to leave the Chamber. I hope that the hon. Member will accept my apology and will not be too hard upon me.
Regarding legal aid, the hon. and learned Gentleman's reply was a little disappointing. But we have had certain assurances from him and we look forward to reading the figures for 1971 to see whether there is any substantial improvement. I hope that there will be, because his interests in this matter are identical with those of all of us who have expressed doubts about the activities of certain courts.
My hon. and learned Friend referred to the retirement age of lay justices. Not very long ago I read a report about a certain lay justice who was celebrating 938 his 97th birthday by retiring from business. He had been in business for about 80 years. When he was 94 he resigned from the chairmanship of the Weymouth Bench owing to defective hearing. But he said that after he had retired from business he intended to return to the bench. Of course, that is no longer possible.
I hope that I have done no harm to the hon. and learned Gentleman by paying him the compliments that I have, and that his prospects of promotion are not finished for all time.
Having said that and having listened to the assurances which he gave, I beg to ask leave to withdraw the Motion.
§ Motion, by leave, withdrawn.