§ 4.14 p.m.
§ LORD CHORLEY
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Chorley.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.214
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1 [Offences of accosting or importuning for sexual purposes]:
§ LORD STOW HILL moved Amendment No. 1:
§ Leave out Clause 1 and insert the following new clause:
§ The noble Lord said: I beg to move Amendment No. 1. In doing so, may I say that this Amendment is one of a series which hang together, and I believe that I should be acting generally in accordance with the practice of the House if, in moving the first Amendment, I deployed, at any rate reasonably briefly, the reasons which stand behind the other Amendments which follow it on the Order Paper.
§ I know how keenly my noble friend Lord Chorley feels about this Bill. Last year he introduced a Bill on slightly different lines and he has come back to the attack this year. For that reason, I am all the more sorry to have to say to him—and I hope that he will understand that I am perfectly sincere—that I cannot persuade myself to think that this Bill is other than a very bad one. I voted against it on Second Reading. Your Lordships thought that it should be read a second time. If I divine correctly the thought in the minds of many of the speakers who took part in the debate on Second Reading, it was on these lines: "The Bill no doubt has defects. They can be examined further in Committee and such vices as are disclosed during the Committee stage can be removed." Many noble Lords spoke, but the only Amendments on the Order Paper are those which I hope I have not been too audacious in putting down. They constitute a series of proposals which I submit for your Lordships' consideration.
§ I think that legislation in this field is extremely difficult and extremely dangerous. It can touch every one of us. A wrongful conviction for the sort of behaviour with which the Bill deals is a disaster to the person convicted, unless 215 he has been properly convicted, and even if he has been properly convicted. I am profoundly convinced that the Bill before your Lordships is one which substantially enlarges the risk of wrongful conviction. When he was speaking on the first version of this Bill, my noble friend Lord Chorley admitted so in terms. His case to-day would be that he has lessened the danger by narrowing the scope of his present proposals. I submit to your Lordships, with great respect, that he has not succeeded in doing so and that the Bill in its present form is every bit as dangerous as the Bill which he first introduced and in some ways is more dangerous.
§ I do not like this Bill for the following reasons. First, I do not think it at all necessary. There is quite sufficient legislative power to deal with the sort of behaviour which the House is considering. Secondly, I think that it would be almost entirely ineffective. Its only effect will be that from time to time some unfortunate person, owing to a bona fide mistake on the part of witnesses, will be convicted and his life made a tragedy. That will be the only effect it will have. Thirdly—and this objection I regard as far the most important—it gives rise to the risk of wrongful conviction and creates a danger for every citizen in this country. I hope that I do not exaggerate. I shall try to make that good, at any rate to some extent. If I do exaggerate, I hope that your Lordships will discount it.
§ May I take the first point first. It is difficult to measure the extent of the nuisance. Nobody disputes that the unwelcome attentions of a discourteous male are thoroughly disagreeable. There is no question that the sort of conduct which we are discussing is very much resented and I do not think that any noble Lord would wish to question that. But, with great respect, I do not think that that is the question we have to ask ourselves. That sort of behaviour is certainly a nuisance, but the relevant question we should put to ourselves in considering this Bill is whether it is a nuisance on such a scale that we ought to amend the criminal law specifically to deal with it and bring about the various consequences which I have ventured to adumbrate.216
§ This also imposes an extra burden on the unfortunate police force. We had an exchange across the Floor of the House yesterday on recruitment to the police, and more than one noble Lord was disturbed about it. One noble Lord asked whether it was really right to keep police officers hanging about the courts in the way that they are these days when they have such a heavy burden upon them trying to protect us against serious crime. I would ask your Lordships to say that unless this is a nuisance of serious proportions we ought not to ask the police to undertake this, because it often means a police officer, who has perhaps been on duty all night, having to give evidence before the magistrates' court the next morning.
§ LORD STRABOLGI
I am sorry to interupt my noble friend, but may I remind him that this is a Committee stage and, very interesting as his speech is, it would appear to me, with great respect to him, to be a Second Reading speech about a general matter. I wonder whether he could perhaps start moving his Amendment and telling the Committee its advantages.
§ LORD CONESFORD
May I, before the noble and learned Lord replies, say that I think it is for the convenience of the Committee, no matter what the views of noble Lords on the measure are, that the noble and learned Lord, Lord Stow Hill, should explain the background of this series of Amendments, which he seems to be doing very efficiently and, I am certain, knowing him, with the maximum brevity, because every word that he now says will avoid spending time later on.
§ VISCOUNT DILHORNE
May I support my noble friend in hoping that the noble and learned Lord, Lord Stow Hill, will go on putting forward the full reasons for his Amendment, which is very brief in its language, but very important in its effect.
§ LORD STOW HILL
I am obliged to all three noble Lords who have spoken. I will certainly try to conform with the practice of the Committee. I sought to indicate the reasons why I was proceeding in the way in which I was by saying that the Amendment to which I am now speaking is really fundamental to all the other Amendments, and unless I deploy 217 the case for the Amendments as a whole the case for this particular Amendment will not become clear. This Amendment is to leave out Clause 1 and to insert a different clause. I cannot support the case I am putting before your Lordships in favour of deleting Clause 1 from the Bill, which is the clause which contains the whole substance of the Bill, unless I say what the objections are which I urge against it. But I will try to say what I have to say as briefly as I can, and I have already said a good deal of that which I wish to say in support of the Amendment.
I have given three reasons. May I deal with each of them as shortly as I can? How does one measure the extent of a nuisance of this sort? I should have thought, in a sense, that the best way was if each of us were to consult our own experience. Let each of us ask ourselves how often in the last year, the last two years or the last three years, this has been the subject of conversation; how often have reasonable, sensible women of our acquaintance or our family circle complained that they have been molested, or even raised the subject, discussed it or shown the slightest interest in it?
I have made some researches on these lines, and one sensible lady of my acquaintance said: "Of course, if you ask for that sort of thing you probably get it." If you go for a stroll by yourself at twenty-past nine in Rotten Row, for example, I daresay you may have your bag snatched and various things may happen to you. But sensible women do not do that sort of thing. I should have thought that one's experience tells one that sensible women, when somebody behaves like a blackguard and tries to molest them, just pass on and the thing is over in two seconds; nobody takes any more notice, and the lady concerned completely forgets about it.
The noble Lord, Lord Chorley, in support of the case which he deployed, referred to the Wolfenden Report. He is very anxious about kerb-crawling. I suppose that there are kerb-crawlers. I daresay I am not a very interesting proposition myself; I do not remember ever having seen any, but I am told that they do exist. I have no doubt that if I went to some parts of London at some hours of the night I might well discover some. But Sir John Wolfenden and his 218 colleagues expressed a view about kerb-crawling. The noble Lord, Lord Chorley, read out part of it. I do not wish to agree with what he said, but he told your Lordships that the Wolfenden Report contained no recommendation that there should be any specific measure taken to curb kerb-crawling. It was for this reason. The paragraph from which the noble Lord quoted continues as follows:To meet the problem it would he necessary to frame an offence the essential ingredient of which would be driving a motor-car for the purposes of immoral solicitation. Whilst we appreciate the reality of the problem, and we consider that it should be kept under review, the difficulties of proof would be considerable, and the possibility of a very damaging charge being levelled at an innocent motorist must also be borne in mind. We do not feel able to make any positive recommendation.Is not that good sense? I should have thought that the Report is absolutely right in summarising the position as it does. There are no doubt unbalanced women who are firmly convinced that their often very modest charms are far more appetising to the male sex than anybody else would think that they conceivably could be. I think they are sometimes known as "ingrowing virgins". But I am talking about sensible women, ordinary, balanced, normal women that one knows. To them, I would respectfully submit to your Lordships, this is hardly a real matter of concern.
I have just read out what the Wolfenden Report says about kerb-crawling. But the noble Lord, Lord Chorley, thinks that the present legislation and the present authorities do not deal with kerb-crawling. He cited the case of Crook v. Edmondson, decided under Section 32 of the Sexual Offences Act 1956, which, as I understood the noble Lord, seemed to him to be an authority in favour of the view that if you were insulted in a car you could not be prosecuted, whereas if you were insulted on foot, you might be. I can only say that I would beg the noble Lord to read that decision again. It really says nothing of the sort. However, if the purpose for which you are soliciting is the purpose dealt with in the 1956 Act, you commit an offence under Section 32; and it does not matter whether you commit it while driving in a motor car, flying a helicopter around somebody, or 219 standing on your head in front of somebody. The question is: are you soliciting for a purpose which the Act considers a thoroughly immoral purpose? Are you soliciting an idiot woman? Are you soliciting a child? Are you soliciting for some purpose of that sort? If you are, then I should have thought it was obvious from the reading of Lord Justice Winn, who pronounced the leading judgment of the Court of Appeal in that case, that you could commit an offence under Section 32 of the Act.
If for any reason kerb-crawling is not included in the existing legislation—and I should have thought that it clearly was—it is certainly included in the Amendment on the Marshalled List, which I shall ask your Lordships to consider later on, which creates a new offence of molesting another person, which you can do on foot or wherever you may be. Therefore, I submit that this is quite unnecessary.
I should have thought that one's attitude to these things had rather changed. There used to be a time, I suppose, when we talked in terms of "a fate worse than death", and "an insult to a lady's honour" which could be avenged only in blood. Most of that sort of thing we left behind with the troubadours. I should have thought now that it was our pleasure and pride to contemplate our magnificent young 5 ft. 11 ins. viragos, splendidly developed in athletics, with fine complexions and clear eyes, every bit as determined to excel in whatever may be the career of their choice as the most ambitious and bouncing of her male counterparts. In point of physique, I should have thought that a sound box on the ears from a young lady of that type was every bit as effective a deterrent as the more conventional punch on the nose that perhaps in a bygone age might have been administered by her male escort.
We have three women Prime Ministers to-day. I should have thought there was to-day very much less room for the operation of the phrase that we used to revel in in our sentimental moments of the "weaker sex" and the "frail sex". That is one of the reasons why, in framing the Amendments which I have ventured to put before your Lordships, I have not limited molesting to molesting for an 220 immoral purpose. If one goes to a place where there are coloured immigrants, one may see white louts walk after them and call some unfortunate coloured boy or coloured young man a name, or use some inappropriate epithet towards him. That is, I should have thought, just as bad a kind of molesting as molesting for an immoral purpose. Therefore I hope that the noble Lord will be able to forgo his preoccupation with the sort of behaviour which he describes and recognise that there are other forms of molesting which are just as bad. I hope that the Committee, if these Amendments are acceptable, will feel that I am right in including them.
Will the Bill be effective? I should have thought that I should not raise any dissent if I said that our personal disciplines prevent us from behaving in the kind of way the noble Lord has in mind. Our respect for women, and respect for ourselves, deters us from molesting women for sexual purposes. If it does not, if we are the kind of people who are not held in by inhibitions of that sort, I think it really is completely unrealistic to think that, because you might be fined 40s. in a magistrate's court if you are unlucky and get caught out, you are going to stop trying to "date" a girl or trying to force yourself on some lady in the hope that she may prove accommodating to your inclinations. Therefore, I think that in any case in this sort of legislation there is very little effect. It will go on just as it did before.
Then, should one bring in the person whom I might term "the customer"? The noble Lord has the laudable desire to equate women and men. I tried to go some way towards him by bringing in the male prostitute. I should have thought that the man in the street could not care less whether the male prostitute is or is not included in the 1959 Act, and would really be rather surprised that, in such a very exciting age, Parliament should take up its time in matters of that sort. But I have, I hope your Lordships may think rightly, put down an Amendment to say that "common prostitute" in the 1959 Act includes a male prostitute, and as a measure of justice I have extended to the male prostitute the protection which the 1959 Act gives by way of warning to the female prostitute. So I have gone some way to meet my noble friend.
221 The noble Lord wants to put the customer on the same footing as the lady who provides the services for which the customer is seeking. We do not make prostitution itself an offence. Keeping a disorderly house, yes. Displaying yourself in public in such a way as to create a nuisance, yes. But the Legislature has never tried, and does not now try, to say that the act of prostitution is a criminal offence. Why? Because we have long accepted, I should have thought, that courts of law are not courts of morals; and in any case we could not stop it if we tried. It would be completely ineffective to try to prevent the act of prostitution. If so, is it not wholly illogical to say that the customer commits a crime whereas the prostitute herself, by prostituting herself, does not commit a crime?
I do not suppose that any of us feels any violent stream of sympathy for gigolos. If a gigolo hangs around a watering place on the look-out for an elderly lady whom the passage of years has not treated too kindly, I do not suppose that anybody would shed any bitter tears over his being brought within the scope of the 1959 Act. I think it is a little hard on the unfortunate elderly lady, who perhaps has to humiliate herself and give him a sports car in the hope that she may enjoy his companionship; and that would be one of the consequences of doing what my noble friend wants to do.
What about the risk of wrongful conviction? Speaking for myself, I think that one of the most precious experiences I have had is working closely with the police—and I hope that I have an understanding of their point of view. If an experienced police officer tells me that he kept somebody under observation for a period of time and that that person was molesting women, peering into their faces and so on, I should think that in nine cases out of ten he is right. Indeed, in 49 cases out of 50 he is right. But in the fiftieth case he may be wrong. And if he is wrong, there is a tragedy.
I do not want to speak in over-painted tones (if that is not a mixed metaphor) but I would ask your Lordships to consider the person who is absent-minded, who is short-sighted; the elderly man, perhaps, who lives in a room by himself and who really would like to have companionship and walks up and down and perhaps does look into people's faces. It 222 is possible to make a mistake; it is not too difficult to make a mistake in that sort of case. However careful and fair-minded police officers are in these matters—and I am convinced that they are—even if they are right in 49 cases out of 50, they may go wrong on the fiftieth case and that is an unspeakable tragedy. I should have thought that the disaster which that means to an individual far outweighs the advantage to society of imposing a very slight curb on behaviour of this kind which this Bill, if it were passed, might impose.
I shall be told by the noble Lord that I do not know what goes on in courts because I am not a practising lawyer. I should have thought, if I may respectfully say so to him, that the right judge in this kind of situation is the layman, the ordinary person in the street, who can form a common-sense point of view about this question. The very first criminal case I ever appeared in in 1927 was that of a rather ineffectual middle-aged gentleman who was arrested for walking up and down at Leicester Square peering into ladies' faces. He was acquitted by the magistrate because the police fair-mindedly said that he had been walking in and out of public houses, and the magistrate thought he was probably rather intoxicated and did not know what he was doing. But he might have been convicted. And if he had been convicted, in that case it would have been a wrongful conviction. So my third objection, and the major objection that I raise, is that this Bill enlarges the possibility of wrongful convictions. Therefore, the first object of my first Amendment is to leave out the first clause.
I cannot help thinking, if I may respectfully say so to the noble Lord. Lord Chorley, that in any event the wording of that clause is most unsatisfactory. I should have thought it elementary that when one drafted criminal legislation one tried to draft it clearly. What he has said is that it is to be an offence:persistently to accost any person or persons with a view to offering or obtaining sexual services for payment or reward".What on earth is a "sexual service"? If a young lady accompanies a young gentleman to the cinematograph and in the cosy intimacy of the cinematograph lets him hold her hand, is she affording him a sexual service? Why not? If she lets him put his arm around her shoulder 223 and implant a kiss upon her lips, other than that which might be inspired by brotherly affection, is she affording him a sexual service? I should have thought he would experience far less pleasure in holding Mr. Jack Dempsey's or the late Mr. Primo Carnera's hand than he would experience in holding her hand, so why is that not a sexual service?
Without trespassing on the indelicate, I should have thought that there are all sorts of gradations in intimacy. Are we really to have the courts deciding, as a solemn matter of law, at what point an intimacy permitted transgresses the limit from being a non-sexual service to becoming a sexual service? Are magistrates who have to deal with these cases, and police officers who decide whether to prosecute, really to have to bother their heads by trying to find out whether it can be proved against him that the individual wanted to go beyond the Rubicon and solicit a sexual service? Surely that is an absolute reductio ad absurdum. The noble Lord says, "Oh, yes; but the service has to be for payment or reward." Is not buying a cinematograph ticket payment or reward? Is not a few drinks in a public house payment or reward? Is not a ride in a motor car without having to pay for the petrol payment or reward? I myself should have thought that this is about as undesirable language in a criminal Statute as one could well think of.
There is the second paragraph. The noble Lord will no doubt say, "Yes, but there you have a safeguard. That need not be for payment. It is just for molestation. It need not be for payment because there is a safeguard. that the person importuned has to give evidence." With great respect to him, it is no safeguard. In a case where there has been molestation, 99 sensible women out of 100 pass on and take no notice. The one case out of the 100 in which the woman was ready to give evidence might be just the case—I do not say it would be, but it might be—where the woman was prepared to exaggerate and to see more devils than vast Hell can hold. I could not help thinking that the letter which the noble Lord read out in 1968 when he was commending the first version of his Bill was rather a letter of that sort. It was a perfectly sincere letter from a 224 lady who thought that Notting Hill Gate was full of streams of people riding about in cars, molesting anybody between the ages of 12 and 60, I think she said. Imagine that lady giving evidence in a case against a man who had involved himself in suspicion of belonging to the train of sexual service seekers.
What I ask your Lordships to do is, in effect, to jettison the Bill and to substitute for it in the first place provisions which put the male prostitute on the same footing as the female prostitute. That is what I formally move at the moment—that the first part of the Bill should be left out and that there should be inserted instead a provision equating the male with the female prostitute, as I proposed. If your Lordships decided that that Amendment should be carried, I should have formally to move the other Amendments because they go with it; but I have sought to deploy the case in favour of all of them. If I speak on the others I shall be very brief.
If I may just add one word on the new clause, I would say that it is deliberately designed to catch only the serious case. I will enlarge on that further later, if I may, but that is my case in favour of the first Amendment. I beg to move.
§ 4.43 p.m.
§ LORD SANDFORD
I am sure that it would be the wish of the Committee that I should start by thanking the noble Lord, Lord Stow Hill, for the thoroughness and, if I may say so, the elegance with which he deployed the case for his Amendments. I am sure that it will save us time later on. I would go on to give the Committee the apologies of my noble friend Lord Derwent who was in charge of this Bill from this side of the House at Second Reading but who is prevented by illness from being with us to-day. In those circumstances, and because I was not present, or did not myself take part in the Second Reading debate (although of course I have since read the proceedings) perhaps the Committee will allow me just to express my attitude before I deal with this particular Amendment. My personal attitude is that I wish this Bill had not had a Second Reading. I hope that it will not get a Third Reading. But at the present time I would join with the noble Lord, Lord Stow Hill, in his efforts to remove what I believe to be some of its worst features.
225 It is hardly necessary to add much in the way of further reasons for removing Clause 1, but I would mention two particular reasons. As at present drafted Clause I contains three elements, all of which were thoroughly considered by the Wolfenden Committee and firmly rejected. Subsection (1A) contains the need to prove that there has been persistence. That point was considered fully at paragraph 260 of the Wolfenden Report and firmly rejected. Subsection (1B) contains the need to prove that annoyance was caused to a particular person. That point also was fully considered by the Wolfenden Committee.
§ LORD CHORLEY
With respect to the noble Lord we are now dealing with an Amendment concerned with subsection (1A) and not with subsection (1B).
§ VISCOUNT DILHORNE
With great respect, the Amendment proposes to leave out both subsection (1A) and subsection (1B). The Amendment is to leave out Clause 1 and therefore covers both subsections.
§ LORD SANDFORD
We are indeed dealing with an Amendment to leave out the whole of Clause 1. I am adducing two arguments for supporting that Amendment, and the first of those reasons is that there are three elements in various parts of Clause 1 which were all considered fully by the Wolfenden Committee and firmly rejected. The second element, which is in subsection (1B) of Clause 1 of the Bill, that of the need to prove annoyance to a particular person, was fully considered by the Wolfenden Committee and firmly rejected. Further down, in the second paragraph of subsection (1B) of Clause 1 it is suggested that evidence is required from a particular person. That, too, was fully considered by the Wolfenden Committee (it is referred to in paragraph 255 of their Report) and was firmly rejected. So that, at least, is one reason for supporting the noble Lord, Lord Stow Hill.
My second reason is that on the Second Reading the noble Lord, Lord Stonham, made it clear in his speech (column 32) that in his view the new clause is likely to reduce the effectiveness of the present law in dealing with the abuse of our streets for the plying of their trade by prostitutes. Just exactly 226 how, having said that, the noble Lord can continue to hold the view with which he began his Second Reading speech, that the Government are neutral in this matter, I rather fail to understand, particularly as in the conclusion to his speech he pointed out to your Lordships that the Criminal Law Revision Committee are about to embark upon a review of the whole area of sexual offences. Surely we should wait for that review before attempting a piecemeal amendment.
I would add to these two reasons a further consideration. My prime consideration in speaking on this Bill, and particularly on this Amendment, is by no means that of the noble Lord, Lord Chorley. My prime consideration is the same as that of the Wolfenden Committee in their Chapter 9 on "Street Offences". It is to ensure that our public streets should be peaceful and pleasant places to walk about in and that the ordinary and decent citizens have rights to the enjoyment and use of these streets, and that those rights ought to be secured. I believe, with the noble Lords, Lord Stow Hill and Lord Stonham, that in the pursuit of abstract concepts of social justice the present Clause 1 seriously jeopardises the very fair success that the Street Offence Act 1959, as at present drafted, is having in the practical and worthwhile aim of keeping prostitutes off our streets as they ply for their trade. Because I believe that, I shall certainly support the noble Lord, Lord Stow Hill, in his Amendment and shall gladly go into the Lobby with him if he decides to press it; and I hope that many of my noble friends on this side of the Committee will accompany me.
§ BARONESS GAITSKELL
I wish to support the Amendments of my noble friend Lord Stow Hill because with the new clauses that he has put forward he has brought legal validity into this Street Offences Bill, which without them does not as a matter of fact bear any kind of legal analysis. I am afraid that I shall have to refer back occasionally to the earlier Street Offences Act, even at the risk of being accused of making a Second Reading speech. Lord Chorley's Street Offences Bill is a hotchpotch of good intentions, based on a social disapproval of prostitution which bypasses the fact that prostitution is not in itself 227 illegal, as has been said by my noble friend Lord Stow Hill, and therefore is not a crime. This glaring omission, which was ignored in many of the speeches during the debate on the Second Reading, was illuminated best in the devastating speech of the right reverend Prelate the Bishop of Exeter. With faultless logic he laid bare the muddled thinking behind this Bill, masked though it was by worthy principles.
The aim of the Bill as stated was to remove various discriminations in relation to street offences, discrimination between men and women; that is, between the prostitute and her client, and the discrimination between male and female prostitutes. The net was also to be drawn wide enough to catch the particular nuisance of kerb-crawling. In fact this seemed to be the main purpose of the Bill. If prostitution is no crime, then the 1959 Act takes care of the particular nuisance of soliciting in public places. As for the argument of sex equality, punishment equally for prostitutes and their clients, it might have been nobler, as the noble Lord, Lord Foot, said in his speech on Second Reading, to remove the discrimination against prostitutes themselves.
My noble friend's short opening Amendment in precise legal language deals with both these objections and ensures verifiable evidence. The Amendments also bring male prostitution into line with female prostitution instead of just adding to Section 32 of the Sexual Offences Act 1956. Without these Amendments the 1959 Act is endangered and the 1956 Act just patched up. The Amendments of my noble friend Lord Stow Hill are clearer and likely to be more just when put into practice.
No one will deny that kerb-crawling is a squalid nuisance, that it is a cause of annoyance, even of alarm to some women. But are we not exaggerating the alarm? I have been told by many young friends of mine that a sharp brush-off can he effective and cause alarm to the kerb-crawler himself. Surely the presence of a police patrol car might be more effective than to bring in a law. I am afraid that in some large cities in many parts of the world it is becoming hazardous in varying degrees for women 228 to walk alone at night in dark and lonely areas. All the same, kerb-crawling, which is an irregular nuisance all over the country, should not be put in the category of a criminal offence.
Sometimes I think that we in the Western Hemisphere are full of hypocrisy in our attitude to all aspects of sex. When I see these beautiful and tempting young women with their disappearing skirts and abandoned looking coiffures I find it hard to believe the accounts of the traumatic effect on them of unwelcome advances from kerb-crawlers. Somehow it does not add up with reality. It seems ridiculous to assume that these free strong young women flaunting their sex cannot ward off unwelcome advances or approaches without one having recourse to legislation, which will be difficult in any case to prove and implement and which will increase the powers of summary arrest; legislation which is drawn so wide that the net will catch the innocent as well as the guilty. Perhaps the Minister of Transport, who sets a speed limit for certain stretches of roads which the motorist must not exceed, can set speed limits on other stretches of road below which any respectable man drives at his peril.
There is much serious crime, as many noble Lords pointed out, that needs our attention. I really think that there is something absurd as well as dangerous about legislating for kerb-crawling. Doubtless it will lead to many absurdities. If such a Bill became law many of us would be filled with apprehension. Suppose I were to transgress the conventions of this noble House and were to refer to the noble and learned Viscount, Lord Dilhorne, on the opposite Benches as my noble friend, might I be accused of importuning? With the lack of plain common sense and sense of humour which this Bill has, I must support the Amendments of my noble friend Lord Stow Hill.
§ 4.55 p.m.
§ VISCOUNT DILHORNE
If I may follow the noble Baroness, who referred to me, I certainly do not think that that limited advance would ever be regarded as importuning. I should like to encourage her to take a little further step forward. When I found that she had got near the line I would unhesitatingly warn her. On this occasion I am very glad to find that she has very clearly and 229 very cogently expressed the views which I hold in relation to this measure. If I may say so, for once I find myself—and it has not been and I hope will not be the only time—on the same side as the noble Baroness and on the same side as the noble Lord, Lord Stow Hill.
I did not speak on the Second Reading of this Bill. I had a great deal to do in another place with the passage of the Street Offences Act, as it now is. I thought that after the powerful speech made in this House on Second Reading by the noble Lord, Lord Stonham—one of the most powerful and effective speeches that I have ever heard him make, when he took this Bill and tore it to pieces line by line; there was hardly a word in that long speech which was not a word of condemnation—that that was the end of the Bill and there would be no need for me to contribute. But the noble Lord, Lord Stonham, gave some encouragement, no doubt, by refraining from voting in the Division that ensued.
I say this in all seriousness. The Government have a responsibility for the criminal law. The Street Offices Act of 1959 was a Government measure, and it really is deplorable if a speech like that of the noble Lord, Lord Stonham, branding this Bill as an excrescence on our criminal law, is not followed by Government action to prevent its passing into law. I hope that we shall not have that line taken again to-day. The Government really cannot divest themselves of responsibility for maintaining the criminal law in good order.
I am opposed to Clause 1 of the Bill, which this Amendment seeks to delete, for this reason. If you take out Section 1 of the 1959 Act and replace it by this clause, you might just as well repeal the whole of the 1959 Act. If I may, I should like to remind your Lordships, very shortly, of the problem which had to be tackled in 1959. That Act was not an Act which purported to deal with moral questions; we tried to keep all moral questions out of it. What we were concerned with was the very real nuisance, in London and in other great cities, of the streets being infested with prostitutes. This Act was brought in; it met with a good deal of opposition; it was very strongly criticised, examined line by line, and was passed, to cure that evil. On Second Reading the noble Lord, Lord 230 Stonham, paid great tribute to its success. I was glad to read it. It has worked and it has worked well.
But if this Bill is passed with Clause 1 in, that situation will revive again, because really—and I agree with the noble Lord, Lord Stow Hill—it will be quite impossible to obtain the conviction of someone who is loitering in the streets for the purposes of prostitution, or someone who is a prostitute who is seeking customers, under the terms of this particular provision. If the prosecution have to prove that there has been persistent accosting of a person or persons, does that mean that one person has to be asked more than once to make it persistent? I think it does. Or does it suffice to be able to establish that a number of people have each been accosted once? This is not clear at all. But you do not have to prove, difficult though that is, persistent accosting; you have to prove that it was done with a particular object. How can a person standing by, watching what is going on, assume and establish by evidence that the accosting was with a view to offering or obtaining sexual services?
I enjoyed Lord Stow Hill's examination of the content of the phrase "sexual services". It is not defined. No one really knows its ambit and what it embraces. Even if you get over those difficulties, you have then to establish that it was not voluntary; that it was for payment or for reward. How on earth is the policeman who is watching what is going on to be in a position to establish these matters? This is a complete charter for prostitutes and we shah have the same nuisance back on our streets as we had to tackle, reluctantly, in 1959.
I know that the noble Lord, Lord Chorley, is most concerned with regard to kerb-crawlers. I believe that one of the consequences of the 1959 Act was that a lot of the prostitutes became kerb-crawlers. But are they any real nuisance? Is there any real need to amend the law to deal with them? I should have thought not. There are, as the noble Lord, Lord Stonham, said, a number of local provisions which deal with this question. But, quite apart from that, if a man or woman is driving along a street in a town with his or her eyes on the pavement to see whether there is a suitable customer or victim (whatever the right word may 231 be), is it not clear that that person is driving without due care and attention, and could they not clearly be convicted, on proof of that, of a motoring offence? I think it is ridiculous that we should go to all this trouble, as the noble Lord, Lord Chorley, does, to try to define a specific offence for kerb-crawlers.
I will not repeat the criticisms that have been made of subsection (1)(b) of this clause in the Bill. In my opinion they are completely valid. I welcome Lord Stow Hill's proposal not only to repeal Clause 1 of the Bill under consideration, but also to make it clear that the word "prostitute" includes "male prostitute". But I think that if his Amendment is carried he will require to have one further Amendment passed; namely, to leave out the word "common" before "prostitute". His Amendment does not do that. The words "common prostitute" have become almost a term of art, but I do not myself see that in these days the inclusion of the word "common" (which is pretty unsavoury) really does anything at all, and certainly I have never heard of a "common male prostitute". I would therefore suggest to the noble Lord that if his Amendment is carried, as I hope it will be, at a later stage an Amendment to leave out the word "common" would be desirable, and if he cares to table it I would certainly support it. For those reasons, and in the hope that what I have said may help to secure the removal of this clause of the Bill and preserve our criminal law, I have ventured to speak on this occasion.
THE LORD BISHOP OF EXETER
On the whole, I would rather have this Bill thrown out, amended or unamended, but if we are going to have it at all I should much prefer to have it in the form as amended by the noble Lord, Lord Stow Hill. I should like to ask the noble Lord one question about his Amendment. Is he absolutely certain that the words "male prostitute" will be interpreted by the courts as a man who is soliciting another man; or will the courts take the line that being a prostitute involves only heterosexual activities? It has been suggested to me that there is a real doubt whether the Amendment as it is phrased will in fact include either the female or male homosexual trying to get what she or he wants.
§ LORD STOW HILL
May I just intervene to answer the question of the right reverend Prelate? My own view would be that the answer to that is, Yes; but he having raised the point, may I give it further consideration if this Amendment is carried?
§ 5.5 p.m.
§ LORD CHORLEY
I should like to say something about this Bill. I have listened particularly to the speech of my noble and learned friend Lord Stow Hill really with astonishment, and also to the later speeches. What he is asking your Lordships to do is, in Committee, to reverse the decision which was come to by a substantial majority on Second Reading in a well-attended House. That is to say, on Second Reading the Bill was passed in principle. What Lord Stow Hill is now asking your Lordships to do this afternoon. together with others who have joined in—and, mark you, practically none of them favoured your Lordships with a speech in the Second Reading debate—is, in Committee, to reverse a decision of the House, and I say that that is altogether wrong.
The noble Lord is quite wrong in saying that we made a decision to pass the Bill. Surely we did not; we only gave it a Second Reading in order to consider it.
§ LORD CHORLEY
I have always understood that a Second Reading is in fact a passing in principle of the policy of a Bill, and that a Committee stage is to put it into proper shape.
§ LORD CHORLEY
Of course I have heard of a wrecking Amendment. There are on the Marshalled List before the Committee today six or more wrecking Amendments in the name of my noble and learned friend Lord Stow Hill. But these are wrecking Amendments of a kind which is most unusual. I have not seen wrecking Amendments like these before in Committee. My noble friend is asking you really to have a Second Reading debate this afternoon and to completely reverse a decision which was come to by a substantial House. Over 100 Members of your Lordships' House 233 were present on that occasion, and we had a long and valuable debate in which the noble and learned Viscount opposite, the noble and learned Lord and the noble Baroness in fact took no part. Now they come here on the Committee stage and ask. for a reversal of all that afternoon's work. I submit to your Lordships that this is really entirely wrong and is reducing the legislative process to contempt.
I wrote an article in Public Law of which I sent a copy to the noble and learned Viscount opposite and on which he congratulated me in a letter which I was pleased to receive. He is now doing exactly the thing I complained about in the article. He is asking your Lordships to reduce the legislative process to contempt.
§ VISCOUNT DILHORNE
The noble Lord really must not say that. He is misinterpreting the legislative process. He got a Second Reading for this Bill. I did not speak, it is quite true; but I was here, and I was satisfied by what the noble Lord, Lord Stonham, said. But the Bill having had a Second Reading we now proceed to the Committee stage, and it is our function to consider the Bill line by line and clause by clause and to take out the clauses we do not like. That is a perfectly proper legislative function.
§ LORD CHORLEY
You are proposing to take out every single clause in this Bill and to amend the Title, which had to be altered by, I think, the insertion of two words, otherwise it would have been quite out of order. It is as near the wind as that. Earlier this afternoon we were told by the noble Lord who leads the Liberal Peers that the country is beginning to lose confidence in its Parliament. Well, if Parliament behaves in this way the country will have no confidence in it whatever. There were the 60 Members of your Lordships' House who, having considered this matter, voted for it at Second Reading. That vote would be treated as a nullity. I said that with your Lordships' help I would try to improve the drafting of the Bill if it was given a Second Reading. Within two or three days of securing that Second Reading those who have been helping me draft this Bill met. We went through every speech very closely and we came to the conclusion that no really 234 effective proposals to improve the drafting had been made, and there was nothing that we could do about it. Otherwise I myself would have put clown Amendments.
The Amendments put down this afternoon are nothing but wrecking Amendments, and the speeches this afternoon have all been Second Reading speeches. It was typical when my noble friend Lord Stow Hill said that he does not think kerb-crawling is a serious business, and laughed it off. I am sorry the noble Baroness is not here, because I thought that her speech about these young athletic women, and that sort of thing, was almost contemptible. The people who are worried and upset and very often made ill by this conduct of kerb-crawling are not these athletic young women who can knock the men back; they are young school girls. My noble friend Lord Stow Hill referred to one letter written by one of these girls and which I reed last time. I have received letters from all over the country from quite middle-aged and elderly women.
The noble Lord asked your Lordships to ignore the Home Office evidence on this matter. My noble friend Lord Stonham said that there was no question about this at all—that this was a menace. He used the word "menace". That is the Home Office evidence, and yet Members of your Lordships' House come here this afternoon and ask us to say on their authority—and some of them have talked apparently to a few athletic young women about it—that there is really nothing in this. I suggest to your Lordships that this is really altogether wrong, and that we really cannot do our work in this sort of way, in effect ignoring the Wolfenden Committee. It was suggested that I had not properly dealt with the Wolfenden Committee Report. I discussed that Report for nearly a column in Hansard. I gave the reasons why I agreed with the Wolfenden Committee that this was a serious problem, and I also gave the reasons why I did not agree with the conclusion of the Wolfenden Committee that it could not effectively be dealt with. The noble Lord, Lord Foot, who has had a great deal of experience in these matters, fully endorsed that view.
I do not want to make a Second Reading speech this afternoon. My noble friend Lord Stow Hill said that we are 235 adding to the dangers because the police occasionally make a mistake. That can be said about any proposal to amend the criminal law. Indecent assault is one instance where from time to time a mistake is made. But is my noble friend suggesting that the law relating to indecent assault should be removed from the Statute Book because occasionally mistakes are made? It is quite absurd. It is the sort of legal argument which really reduces the ordinary man in the street to hysteria about the way lawyers talk, and it is so with all these arguments which have been produced this afternoon. If the noble Lord would make some real attempt to amend the wording of Clause 1 then I should be very happy to go along with him. But simply to condemn it out of hand in this sort of way, and in effect to say that the votes of 60 of your Lordships given on March 4 should be of no effect, I suggest is really something we ought not to take.
§ 5.15 p.m.
I should like to speak against the Amendment, and I would say that had I been here for the Second Reading I should have spoken in favour of the Bill, but I was in the United States on a Government assignment. My noble friend Lord Stow Hill gave three main reasons for his Amendment. First of all he said that the Bill was not necessary. With great respect to him, I would say that this is absolutely untrue. In the first place, Clause 1 of the Bill as introduced by my noble friend Lord Chorley does away, by making it an offence for "any person in a street … persistently to accost" with a term that most of us find so objectionable. I certainly, sitting as a magistrate, curl up with horror when a woman is referred to by the police as "a common prostitute". I know that the noble and learned Viscount, Lord Dilhorne, has suggested a change, but that is not in the Amendment, so we are not considering that at this particular moment.
What this Amendment seeks to do is, in my opinion, an extremely retrogressive step. It seeks to turn a male prostitute into a common prostitute as well. It seems to me against the entire principles of British justice that a policeman can come into court and say, "This woman, who I know as a common prostitute", and so 236 on. Why do we not have a policeman coming to court and saying, "This man who I know as a common thief"? When we sit in the magistrates' court, and when a judge sits in the High Court, we do not know, except in a case of a suspected person and some of us are very dubious about that, anything about the man or woman's record until the case has been heard. So on that first point it seems to me that this Bill is absolutely necessary.
Because the first clause sets out to say "persistently to accost" and "importune", I think it makes the offence absolutely clear and defines it more narrowly than, if I may say so, does my noble friend's Amendment further down. I must touch on this because it connects with the first Amendment where he uses the word "molest" which entirely widens the offence and could extend it to flag sellers and other people. This wording keeps it within the sexual field. I am not particularly happy—and I do not think any of us were who were working on this Bill—with the phrase "sexual services", but it was adopted in order to get round the point about "payment or reward". I have forgotten who it was, but one noble Lord spoke about the boy sitting in the cinema holding his girl's hand. We all know that this is absolutely ridiculous and it is becoming very dramatic, extravagant and fantastic, because everybody has a choice of sexual behaviour. If you are holding somebody's hand you are neither being accosted nor importuned; you are agreeing with.
The second point my noble friend made concerned the chances of wrong convictions. We all know that in almost any sort of case one can think of there is always a chance of a wrong conviction, and so far as possible the law must be legislated and administered in such a way as to cut down that possibility. His third point—the danger for every citizen—seems to me to be more or less connected with it. I think this is again, if I may say so with great respect, a very extravagant way to deal with something that is pretty clearly defined. The idea that the client, the innocent customer, is now going to be dragged before the court is also nonsense if one reads the Bill carefully. This arises only if the man or woman importunes or accosts; and this is only a question of equality of treatment.
237 As the noble Lord, Lord Foot, said on Second Reading, it really is primarily a case of public order and seemliness. It has nothing to do with sexual morals. It is not a question of making prostitution illegal (which we all know it is not); it is a question of the behaviour of people. My noble friend Lord Stow Hill said that our personal disciplines prevent us from behaving in this way, but here again, I think, if I may say so, he is living in rather an enclosed and narrow world. We are not talking now about Members of this House and perhaps our friends, or about people we know; we are talking about a great range of human beings from different backgrounds and with different personalities. One of the arguments in favour of, for instance, the Race Relations Act was not that those of us supporting it felt that overnight one could change people's attitudes; but that one could control their behaviour. That is what this Bill is about.
May I also say, with great trepidation and respect, that when my noble friend said that we should consult our own experience over the last two years, I was thinking that the age level of this House is rather high for that as a very relevant argument in this matter. He went on to say that this problem is hardly a matter of concern to the ordinary sensible woman. But that just is not so. In the area of the court where I sit we have some woods and a road alongside them, and we are quite aware of a large amount of kerb-crawling. But under the present law, unless someone is charged with creating public nuisance or an assault, the position is very difficult and we cannot get at them at all.
It is no good talking about the sensible woman, or about these 5 ft. 11 in. girls. Incidentally, it seems to me that, somehow, the older men get the taller the girls get. I do not know why that should be. But this experience can be not only very unpleasant, but very frightening. One noble Lord said on Second Reading that some women and girls in this country will get into a car if there is nobody around because they are frightened of an assault. That sort of thing is on the increase. I read with great interest the Report of the Second Reading debate, and I noticed that even of those people unhappy about the Bill not one of them, 238 including the Bishops who spoke, denied that kerb-crawling was on the increase.
My noble friend also mentioned the question of the mistakes that were made if somebody was short-sighted. I am reminded that on one occasion (I am myself short-sighted and also rather vain, so I do not like wearing glasses if I can avoid it) I went up and tapped a man on the shoulder and said, "Hullo, darling." He turned round and I then said, "I thought you were my husband"—which I did—to which he replied, "Your husband must be a very good-looking man". I do not feel that I should be terribly frightened if this Bill were in operation now, because I have mole confidence in our courts than some noble Lords who have spoken to-day evidently have.
With great respect, I do not think my noble friend Lady Gaitskell has understood the Bill (I am sorry that she is not here, because I always feel that if I criticise someone he or she should hear it) because the Bill does not make prostitution illegal. From my experience of her speaking, I think she always speaks on subjects of which she has great knowledge, but kerb-crawling does not appear to be something about which she is informed, because she asked, "Are we not exaggerating the alarm?" I do not think we are. What has changed in our society to-day is the fact that far more accosting by men is taking place, and while this Bill is not dealing solely with that problem we are dealing with the protection of girls and women, so far as one aspect is concerned. I find it quite appalling that the point should be made that the tempting young girls with short skirts are more or less getting what they are asking for. So long as a girl is not dressed in a way that is either obscene or likely to cause a breach of the peace, why should she not have from the law the same protection as anybody else? She really should have it. Following the logic of this argument, one could say that when skirts go down, as no doubt they will at some time—or perhaps I should say when the hems drop—that will also encourage men, because they will be so frustrated by not being able to see the girls' legs. So women will then be blamed for men raping them, because the skirts are longer and the men are therefore more frustrated. This argument 239 about flaunting sex and so on is an awful one.
The noble and learned Viscount, Lord Dilhorne, talked about the streets being infested again if this Bill goes through. I think there is one important point about this. It is possible that there may be more prostitutes on the streets, but even if that were so I think it would be worth while. We should not go back to the pre-1959 situation, because a great deal of the 1959 Act is still operative. But even if we did, because this Bill is far more just and also treats men and women on a more equal basis, as well as dealing with kerb-crawling, I think that, as the noble Lord, Lord Foot, said on Second Reading, that is a reasonable price to pay. However, I think that such an effect would be cancelled out by the effect of the deterrent. Once a law like this is passed, a great many men who normally accost or persistently importune women or indulge in kerb-crawling will be frightened, because there is a law in existence. In exactly the same way as many people do not now take out their cars and drive when they have had much less to drink than would take them above the alcohol level, so this law would act as a deterrent. I think that is a very important point.
Finally, may I say that one of the things that those of us who talk or lecture about this House are always very proud to say is that on so many of the controversial social reforms it has led the way in the legislative field. It would be a great pity if, by accepting this wrecking Amendment to-day, we showed ourselves as reactionary as some people seem to think we are. On Second Reading, my noble friend Lord Stonham said very frankly that this matter will not go to the Law Revision Committee very soon. There is no question of that now. Also, as I said on the Second Reading of the original Bill—and this is certainly a very much better one—we are deciding social policy here. We are deciding whether this law should be changed. I think it is up to us to decide the policy, and there is even more urgency now because it cannot be argued that if we wait only a few months we shall get another Bill. Speaking both as a magistrate and as a mother, I very much hope that this Amendment will be rejected and that the Bill will go through.
§ LORD FOOT
My Lords, I should just like to make two points against this Amendment and in support of the Bill. The first point that I should like to impress on the House is that if this Amendment to remove Clause 1 and to substitute the words on the Marshalled List is carried, the Committee should be perfectly clear that it is cutting the Bill's throat. The whole force and substance of this Bill is contained in Clause 1. If that goes and nothing comparable is put in its place, the Bill might as well be forgotten now. If this first Amendment to Clause 1 is carried, then the Bill is dead, and I think the Committee ought to recognise what it is being asked to do. I agree with the noble Lord, Lord Chorley, that what we are now being asked to do by this first Amendment is to reverse the decision which was taken on the Second Reading of the Bill in this House.
The second point that I want to make—and I want to confine myself to the third of the reasons which were advanced by the noble Lord, Lord Stow Hill, for his opposition to the Bill—is about the risk that innocent people might be wrongly convicted. I fully share his anxiety over the risk of any innocent person being wrongly convicted for any kind of offence, and I agree with him that it is vital that in legislation one should try to build in all the safeguards one can to try to avoid wrongful conviction. But I think the noble Lord has overlooked the fact that the Street Offences Act 1959, as it stands, and as it would be amended by the Amendment which is now proposed by the noble Lord, is an Act which is wide open to wrongful conviction of innocent people. What it says is that once it is proved that a woman is a prostitute—with the contemptuous word "common" put in front of it—and once it is proved that she has loitered on one single occasion in a street for the purposes of prostitution, then she is automatically convicted of the offence.
What are the possibilities of a woman being wrongly convicted? All that is necessary is for a single policeman to say that he was standing in the street, that this woman was known to him as a prostitute and that she was loitering. How readily will the court infer that she was 241 loitering for the purposes of prostitution! Is the noble Lord concerned about common prostitutes being wrongly convicted? What we have done, and what the sponsors of the Bill have done, is to try to correct that, to try to prevent a prostitute from being wrongly convicted. What we have done is to insist on importing the word "accost", and also that it should be persistent: it must be persistent. That is the alteration in the law which is made by the Bill, and that is the safeguard which the noble Lord's Amendment would now remove.
Under this Amendment, a prostitute, whether it be a female prostitute or a male prostitute, would be open to that awful hazard of being wrongly convicted simply because he or she happened to be loitering on one single occasion in a public place. Far from avoiding wrongful convictions, the Amendment proposed by the noble Lord would in my estimation be likely very largely to increase them. Of course, the noble Lord may say that it does not matter if a prostitute is wrongly convicted, but I really do not think the noble Lord would use an argument of that kind. I think that if a male or female prostitute is wrongly convicted it is just as had as if a respectable person is wrongly convicted. Everybody ought to be equal before the English law, and I dare say the noble Lord would agree that that is a reasonable proposition.
I therefore invite the Committee to say that it is not right that on this occasion we should carry an Amendment which, in effect, kills the Bill dead, and that the proper course here is to let the Bill be discussed and to entertain on this occasion only such Amendments as are really framed to try to safeguard us against risks, and things of that kind, but which are Amendments within tile framework of the objects with which this Bill was put forward.
§ 5.33 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)
I hope that your Lordships will not object if I follow the noble Lord. Lord Foot, and talk about the Amendment that we have under discussion. If I do, it will be only the second speech, out of the nine that we have had, that does so. For whatever reasons—and my noble friend Lord Stow Hill put forward reasons, which were 242 supported—we have had a Second Reading debate, and unquestionably, as the noble Lord, Lord Chorley, has said, the decision that the Committee is being asked to take this afternoon is one that would entirely reverse the decision on principle that was taken on second Reading. Or, as the noble Lord, Lord Foot, put it, we are being asked whether we should now cut the Bill's throat.
I do not wish to enter into second Reading matters, but I must deal with one or two points that have been raised, and then I shall proceed as quickly as possible to deal with the Amendment. The noble Lord, Lord Sandford, found it difficult, in view of what I said at the end of my Second Reading speech, to see how the Government could adopt a neutral attitude to this Bill. At the risk of boring your Lordships, I must read again what I said on Second Reading. This is what I said in opening my speech:I hope it will be of assistance if I intervene thus early in the debate to indicate the Government's attitude to the Bill. As I understand it, the Bill's objectives are to remove discrimination between men and women, between prostitutes and their clients, and between heterosexual and homosexual behaviour in relation to street offences. Another of the proposed effects of the Bill is to make the con duct known as 'kerb crawling' an offence." [OFFICIAL REPORT, 4/3/69; col. 23.]I went on:The issues involved touch on matters of social conscience about which strong opinions are held, and I should like to make clear at the outset that the Government adopt a neutral attitude to the principles of the Bill and believe it is right that your Lordships should be free to vote on the Bill, if there is a vote, as you will.I think that gives a complete answer to the point raised by the noble Lord. I was talking about the principles of the Bill. But I then said that:… we have the clear duty also to consider the practical implications involved",and I went on to point out what the Government regarded as defects in the Bill, which I summed up at the end of my speech.
The noble and learned Viscount, who I regret is not now in his place, saw fit to mention that when it came to the vote I too abstained. That was, again, for reasons that I thought quite good ones; namely. that I was the Minister, representing the Government, in charge of the Bill. My views on this issue are 243 very clearly known. My personal wish, of course, would have been very much to vote for the Bill though I thought it right, obviously, as the Minister in charge on behalf of the Government, to abstain. Now that the matter has been raised, I can tell the noble and learned Viscount that when it is known on this side of the House that he is going in one Lobby, that is at least a prima facie case for somebody on this side of the House to go into the other. Perhaps that is why he made reference to it in his speech.
There is one other point. I regret that my noble friend Lady Gaitskell has not been able to stay (she told me that she had an urgent engagement), but I must correct an obvious lack of knowledge on her part, because she said that, "Kerb-crawling should not be a criminal offence". Of course it is a criminal offence now; and, as the noble and learned Viscount pointed out, there are Acts of Parliament under which men who commit this offence can be picked up and charged with it. So it is a criminal offence. On the same point, I must say this to my noble and learned friend Lord Stow Hill. Although he suggested that if we wanted to know whether this kerb-crawling was a menace we should consult our own experience, this, unfortunately, is something which I cannot accept. We in the Home Office know—and I said so during the Second Reading debate—that this is a menace. It is indeed a growing menace. This is not hearsay, and is not knowledge gained through consulting my wife or her lady friends. This is, unfortunately, a fact.
It is also unfortunately a fact that since the Crook v. Edmondson judgment there have been no prosecutions under the 1956 Sexual Offences Act; and it is the Government's intention, as I indicated on Second Reading, that when this matter has been considered by the Law Revision Committee—and we have recommendations from them—if legislation is then found advisable we shall of course proceed to deal with this problem. I should not like anybody to think that it does not matter. Therefore, let me say to the Committee once more that the Government's attitude on all these Amendments that we are to consider is a neutral attitude. In each case it will be my duty to give the facts and the Govern- 244 ment's view of the Amendment, its merits and demerits—and that is what I now intend to do on this particular Amendment.
I would ask your Lordships to base your decision on what we have before us, which is Amendment No. 1. That Amendment proposes to delete the new offence in Lord Chorley's Bill and thus to leave untouched the existing offence under Clause 1(1) of the Street Offences Act 1959, which provides that:It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.One of the effects of my noble friend's Amendment, if it were accepted, would be to leave that where it is. The noble and learned Viscount, Lord Dilhorne, said that perhaps at a later stage my noble and learned friend might consider amending his Bill by removing the word "common". He found something objectionable in the word "common"; but it would still leave "prostitute". Apparently, that is not so objectionable. The noble and learned Viscount said in another place during the discussions on the 1959 Act, for which he was largely responsible, that there was no question of morality raised. It has been suggested that in the phrase I have just read there is not much question of justice, either. That is what the opponents of this particular clause of the Bill wish to alter.
As my noble friend made clear, his Amendment further provides that, for the purpose of that offence, the word "prostitute" shall include a male or female prostitute. I would point out that the wording of the Amendment would extend the term "prostitute" to include men, but only for the purposes of Section 1(1) of the Street Offences Act 1959 and not in any other context. I do not know whether that is my noble friend's intention.
§ LORD STONHAM
Well, it is not in respect of any other Statute. My noble friend has prefaced his new clause with the words, "For the removal of doubt". In our view, those words are probably superfluous; but that is a small matter. The wording of the prostitution offence in the Sexual Offences Act 1956 implies that the term "prostitute" relates only to women. There can be little if any doubt 245 that offences relating to prostitution are generally interpreted in this sense. I believe that this was in the mind of the right reverend Prelate, for although he is, if I may say so, a strong opponent of the Bill, he dislikes the Amendment a little more. There can be little if any doubt that offences relating to prostitution are generally interpreted in this sense; namely, that it applies only to women. The criminal statistics show offences by prostitutes as being committed by women. The law has for many years recognised the term "prostitute" as applying to female prostitutes and, although the term has never been statutorily defined, the police and the courts appear to have had no difficulty in interpreting it in relation to women. In other words, prostitutes, common or otherwise, always mean, to the courts and to the police, women. No similar legal recognition of the term as applying to male prostitutes can be traced. The interpretation of that term would be uncertain. Because of this it is unlikely that the 1959 Act offence would ever be used to deal with male prostitutes. We are dealing with the 1959 Act now.
Alternatively, in our view there is the risk that the term "male prostitute" might be given a wider meaning than is intended; that is, a wider meaning than any of us intend and certainly a wider meaning than my noble and learned friend would intend. Such uncertainty in the criminal law is undesirable. On that I am sure we all agree. The Bill leaves untouched the provision in Section 32 of the Sexual Offences Act 1956, which makes it an offence for a manpersistently to solicit or importune in a public place for immoral purposes.It seems likely that this provision would continue to be used for cases of homosexual importuning. In other words, I am saying that in our view if the Amendment now before us were approved and the Bill became an Act, it would not lead to any prosecutions of men under this proposed new provision. As was indicated in the speech of the noble and learned Viscount, if the Amendment were to be approved it would leave the law in an uncertain state; and if it were so approved the Government would have to consider the position at a later stage of the Bill.
That is all I have to say about the Amendment, purely as an Amendment, 246 and I have dealt with it faithfully and fairly according to the best advice available to me, Your Lordships may therefore feel that it would be wisest to let your attitude be decided on the basic issue of principle, which is whether to retain the term "common prostitute" (which is what the Amendment proposes) or to replace that term in the way that Lord Chorley has provided in his Bill, a Bill which was given a Second Reading a few weeks ago.
§ LORD CHORLEY
Before the noble Lord, Lord Stow Hill, replies, I should like just to say this. The noble Lord, Lord Stonham, raised an important point when he pointed out that if this Amendment were accepted the law under the Street Offences Act 1959 remains on the Statute Book, including this discrimination against the common prostitute. The noble Lord, Lord Stow Hill, in a speech in another place on this Bill (which I was told was a very eloquent one) pointed out how very unfair to the common prostitute is the present Statute. He said that it was not fair to them. He said that he had had experience as a Junior practising at the Bar in every police court within fifty miles of the Palace of Westminster which satisfied him that the law which enabled a policeman to say, "This woman I know to be a common prostitute, and this woman I saw loitering," meant that in almost every case she was bound to be convicted. Lord Stow Hill asks you to add to that a similar discrimination against the male prostitute; thus making two blacks instead of the one that we now have on the Statute Book. I should like him to deal with this point when he attempts to reply.
§ LORD STOW HILL
I believe that it is in accordance with custom that the mover of an Amendment replies to the arguments advanced. I will do this as briefly as I can. I will deal first with the speech of my noble friend Lord Stonham. I find it difficult to follow his reasoning in some points. He was saying, as I understood it, that Section 1 of the Street Offences Act 1959 would be construed as relating only to a female prostitute. But it was for that very reason that I put down the Amendment that the Committee is now discussing. That Amendment begins: "For the removal of doubt …". With great respect to the noble Lord, that phrase 247 appears in Statutes over and over again. I have defended it over and over again. The Amendment reads:For the removal of doubt it is hereby declared and enacted that in section 1, subsection (1), of the Street Offences Act 1959 the word 'prostitute' shall include a male and a female prostitute.By reason of the argument he was advancing about Section 1 of the Street Offences Act 1959 I put down the Amendment which your Lordships are now considering. I am asking Parliament to enact—
§ LORD CHORLEY
May I interrupt the noble and learned Lord? Are we not discussing the first Amendment, which is to leave out Clause 1? We have not got on to the second Amendment, which is after Clause 1.
§ LORD STOW HILL
The noble Lord, Lord Chorley, is a great expert on Parliamentary procedure, as he has just made clear to all of us, but may I, with great respect, refer him to what is in front of the Committee, which is to leave out Clause 1 and to insert the new clause, which I read out before? There are not two Amendments; that is the one Amendment which we are considering. It is the Amendment to which my noble friend Lord Stonham addressed a great deal of his argument, and it is the Amendment to which I am now respectfuly asking permission to reply. May I go on to say to my noble friend Lord Stonham that whatever the Home Office think about it, I cannot understand what the uncertainty is. The noble and learned Viscount, Lord Dilhorne, suggested that I should put down a further Amendment to leave out the word "common". I am grateful to him for suggesting it and I should certainly like to consider it; but what the confusion is that my wording introduces passes my understanding. Probably that is my fault and not the fault of the noble Lord.
It is perfectly true that this Amendment, in inviting the Committee to leave out Clause 1, substantially abandons, substantially changes, the whole frame and scheme of the noble Lord's Bill. That is precisely what my intention was. I know that the noble Lord, Lord Chorley, feels very strongly on this subject, and he spoke in moving terms, but, if I may respectfully say so to him, vituperation is 248 not always a substitute for argument. If I think his Bill is a thoroughly bad Bill, I do not know how I can interpret my duty to this Committee other than to try to devise an Amendment to improve it and to take out of it those characteristics which I think are bad characteristics. That is what I have tried to do. Having done that, I am not conscious of having contributed to the alleged decline in respect for Parliament about which he is so concerned. I will certainly think over my conduct, but I cannot really think that I am guilty of the charges he made in the highly coloured language that he has used.
I think, for the reasons I have said, that Clause 1 of his Bill is bad and what I have tried to do is radically to change it in order to make it apply only to the serious sort of soliciting. That I do in the second new clause that I move. I have generally indicated my reasons for that new clause, but, if I may say so to the noble Lord, Lord Chorley, and to the noble Baroness, Lady Birk, it is not as if, when a lady is subjected to intolerable conduct, the law will be powerless to deal with it if the Committee accepts my Amendment. The law will provide that a person commits an offence who persistently molests another person so as to cause annoyance in circumstances that a breach of the peace is likely. That is very close to what the law is already.
Section 5 of the Public Order Act 1936 comes very near to an enactment in that form. It can be used now, and I believe I am right in saying that the police do now use Section 5 of the Public Order Act 1936 to deal with cases where you get conduct which is beyond the bounds; where you do not simply get a boy trying to date a girl or, to use a phrase used nearly fifty years ago when I was young, giving a girl a "glad eye"—I do not know whether that term is used now—but where you get somebody who really is so persistent and tiresome in attempting to thrust his company on a lady that she really cannot be expected to tolerate it and she feels inclined to break her umbrella over his back; or someone else feels inclined to intervene. That is what the later Amendment which I have put down would effect, and I say that to the noble Baroness, Lady Birk.
I doubt whether it is really necessary, because the offence of insulting words 249 and behaviour which is created by Section 5 of the Public Order Act 1936 is, I believe—and I think I am right in saying that some police opinion coincides with my own—perfectly adequate, when you get the evidence, to deal with intolerable behaviour. The difficulty, as was pointed out on the last occasion by the noble Lord, Lord Stonham, is that you cannot get the evidence. A police officer said to me, "Sometimes, not often but sometimes, a lady rings up and says, 'Somebody kerb-crawled me; will you please do something about it?' The question is then, 'Well, did you get his number?', and the answer is, 'No, I did not.'". So what is the unfortunate police officer to do?
The difficulty is not that the powers are not there; they are there. There are ample powers. There is the Metropolitan Police Act 1839; there is power under Section 5 of the Public Order Act 1936; there is power to prosecute for indecent assault and for common assault, There are various powers. The difficulty is, you cannot get the evidence; and you will not be able to get the evidence under this Bill. Therefore, what I have tried to do is to say that prosecutions, if they take place, are to take place only in serious cases where the individual charged has gone beyond what can reasonably be expected to be tolerated.
I am in a difficulty in that I am now anticipating a further Amendment that I have put down, but so far as it is relevant I hope shortly to deploy the argument and invite the attention of the Committee to the Amendment, if we get as far as that, when we come to it in due course. Kerb-crawling either is or is not a serious nuisance. If it is, as the noble Lord said, it is now within the criminal law. It would be within the scope of the new clause that I have put down about molesting. If it is not a nuisance we need not bother about it; if it is a nuisance there is ample power to deal with it, if you find the evidence to prosecute the individual.
§ LORD STONHAM
If the noble and learned Lord will allow me to interrupt him, may I say that I am entirely with him about the difficulty of getting the evidence, whatever the law. But the 1839 Act is the only measure under which the police are now dealing with kerb- 250 crawlers, or able to deal with them in the Metropolis and in certain parts of the Provinces where they have similar local Acts. But it is the case—and I ask my noble and learned friend to accept this—that we regard these powers as inadequate. The police are handicapped at times and we hope at a later stage to be able to deal with this matter.
§ LORD STOW HILL
If they are inadequate. I hope that my clause will be adequate. The noble Lord, Lord Stonham, as I understand it is making—
§ LORD CHORLEY
I cannot take it from the noble and learned Lord that his clause will be adequate, because I shall certainly deploy reasons to suggest that it does not cover kerb-crawling at all.
§ LORD STOW HILL
I hope that they will be in less unfriendly terms than the reasons hitherto deployed, and I shall listen to them with interest. I also, if I may say so, have done some research, and have some slight knowledge of this subject. The noble Lord says that the Metropolitan Police Act 1839 is used. I know perfectly well that the Metropolitan Police Act contains a section which is the one which I think the noble Lord is referring to. It makes disorderly behaviour, insulting words and behaviour in a public place, an offence. That is used; but that section in the Metropolitan Police Act 1839, which applies only to London, has been repeated word by word in Section 5 of the Public Order Act 1936, which is of general application and not only applicable to London. There is only one slight difference—that Section 5 of the Public Order Act 1936 includes the words "or at any public meeting". May I read it out?Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence.The words are the same as in the Metropolitan Police Act 1839, except that it includes the additional words, "or at any public meeting".
If the noble Lord is right in saying that the Act of 1839 was used, a fortiori, Section 5 of the 1936 Act can also be used. The view I would put to the House—and I believe that it is not only my view—is that the Act is per- 251 fectly adequate to deal with cases of offensive kerb-crawling, offensive looking through a window and so on. I do not think there is any real need to amend the law at all, but in case that section turns out in experience not to be adequate I have put down a further Amendment which I hope your Lordships will consider in due course.
The noble Lord, Lord Foot, suggested that by leaving Section 1 of the 1959 Act in its present form I was opening the door wide to wrongful convictions. I am not opening any door there. That is the position as it is at the moment. I am told, on the authority of the noble Lord, Lord Stonham, that the Act has in point of fact worked perfectly well, without complaint, for some ten years. I did not like it when the noble and learned Viscount, Lord Dilhorne, in his capacity as Attorney-General, commended it in another place and I ventured to obtrude some modest arguments; but the noble Viscount's eloquence prevailed, as always, and I was voted down. I did not like the Act, and say so perfectly frankly, but it has worked. I hope that I am not being unfair to the noble Lord, Lord Foot, when I say that all that has been done in my noble friend's draft is little more than insert the word "persistently", the word that the noble Lord founded upon.
§ LORD STOW HILL
It certainly would not break my heart if the word "persistent" were put into Section 1 of the 1959 Act, and if the noble Lord, Lord Foot, feels that that would be an adequate safeguard I should like to consider
§ it. I do not like the Act at all but it has worked very well. When the noble Viscount originally proposed it, I doubted whether it was really necessary. I have lived in London practically all my life and I cannot remember being seriously incommoded by any lady who tried to attract my attentions; but perhaps I am particularly obtuse in those matters and did not notice what other people did.
§ VISCOUNT DILHORNE
If the word "persistent" were introduced, which I hope the noble Lord will not agree to, the noble Lord will probably notice the accosting.
§ LORD STOW HILL
May I say that I should like to leave this an open question. I am anxious to be helpful and to see what I can do to meet the point of view of noble Lords who feel difficulty about my proposals. The noble Lord, Lord Foot, has made a suggestion and I simply say that I should like to consider it, as I should like to consider the suggestion made by the noble and learned Viscount about omitting the word "common". I have tried to equate the male and female prostitute and, though I do not believe that the Heavens would fall if we did not suceed, I believe I have succeeded in doing so. I shall be glad to consider any suggestion from any part of the House, if the House thinks my approach is helpful and useful. If not, your Lordships will vote against it. If it does, I am amenable to any suggestion, so long as it does not put back the main purpose and principle of the Bill, which I thoroughly dislike.
§ 6.5 p.m.
§ On Question: Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 58; Not-contents, 22.253
|Ampthill, L.||Dundee, E.||Kahn, L.|
|Auckland, L.||Eccles, V.||Kinnoull, E.|
|Barrington, V.||Emmet of Amberley, Bs.||Kirkwood, L.|
|Belstead, L.||Exeter, L. Bp.||Lambert, V.|
|Birdwood, L.||Falkland, V.||Lansdowne, M.|
|Bowles, L.||Goschen, V.||Lindgren, L. [Teller.]|
|Conesford, L.||Grenfell, L.||Lucas of Chilworth, L.|
|Cork and Orrery, E.||Gridley, L.||Luke, L.|
|Daventry, V.||Grimston of Westbury, L.||McCorquodale of Newton, L.|
|Denham, L.||Hacking, L.||Margadale, L.|
|Dilhorne, V.||Henley, L.||Massereene and Ferrard, V.|
|Drumalbyn, L.||Jessel, L.||Merrivale, L.|
|Molson, L.||Rockley, L.||Somers, L.|
|Mountevans, L.||St. Aldwyn, E.||Stow Hill, L. [Teller.]|
|Mowbray and Stourton, L.||St. Oswald, L.||Strang, L.|
|Nugent of Guildford, L.||Sandford, L.||Trefgarne, L.|
|Raglan, L.||Sandys, L.||Vivian, L.|
|Rankeillour, L.||Selkirk, E.||Winterbottom, L.|
|Rea, L.||Sempill, Ly.||Wootton of Abinger, Bs.|
|Addison, V.||Leatherland, L.||Plummer, Bs.|
|Birk, Bs. [Teller.]||Listowel, E.||St. Davids, V.|
|Brockway, L.||Lloyd of Hampstead, L.||Stocks, Bs.|
|Burden, L.||Milner of Leeds, L.||Stonham, L.|
|Chorley, L. [Teller.]||Moyle, L.||Strabolgi, L.|
|Cottesloe, L.||Ogmore, L.||Wilson of Langside, L.|
|Foot, L.||Phillips, Bs.||Wise, L.|
|Hilton of Upton, L.|
On Question, Amendment agreed to.
§ Resolved, in the affirmative, and Amendment agreed to accordingly.
§ LORD STOW HILL moved Amendment No. 2:
§ After Clause 1, insert the following new clause:
§ Amendment of s. 2 of Act of 1959
§ ". In section 2 of the Street Offences Act 1959 for the word 'woman' where that word occurs in the said section there shall be substituted the word 'person', and the words 'the', 'her' and 'prostitution' where they occur in that section shall be construed accordingly as applicable to a male or female person as the case may be."
§ The noble and learned Lord said: This Amendment is one which would accomplish, I hope, a fair measure of justice in procuring for the gigolo the advantage of a warning procedure which is at present contained in Section 2 of the Street Offences Act 1959. That procedure, as the Committee probably knows, is one under which if a police officer warns a prostitute that her behaviour is objectionable she can apply to a magistrates' court to have that warning expunged if she wishes to assert that it is unjustifiable. What this Amendment provides is that the warning shall be available to protect a male prostitute in exactly the same way as at present, under Section 2 of the Street Offences Act 1959, it is available to protect the female prostitute. In a sense, it really follows on from the previous Amendment. I beg to move.
§ LORD CHORLEY
I should not raise any objection to this Amendment. I think experience is that it is not of any particular value, and this section is very little used. Possibly the Minister can tell us something about the Home Office information on this point. Obviously, with 254 the Bill back more or less into the form of the 1959 Act, there is now a case for this sort of thing, and I should net object to it.
§ LORD STONHAM
I agree with what my noble friend Lord Chorley has said. This Amendment, as I am sure try noble friend Lord Stow Hill will agree, is virtually consequential on the passing of Amendment No. 1. But there is rather more to it than that, because the cautioning system is not a statutory procedure. It is given statutory recognition in Section 2 of the 1959 Act so as to provide that a woman who has been cautioned may challenge the caution and apply to a magistrates' court for an order that it should be expunged. This Amendment would apply the same procedure to men. But since women prostitutes are usually identifiable as such, the system with them gives rise to few, if any, practical difficulties. However, in our view, this would not be true of men or youths, and we feel doubtful whether a regular cautioning system would in any way be practicable in respect of men. Nevertheless, I would advise the Committee, in view of the fact that my noble friend's first Amendment was adopted, that this Amendment is consequential and should probably be accepted. But if it is accepted, I would advise my noble friend (because this would increasingly become Lord Stow Hill's Street Offences Bill) that we should have to consider with him, before the next stage, the practical implications of this Amendment. Beyond that, there is no further advice that I can give to the Committee.
§ VISCOUNT DILHORNE
I was glad to hear the last words of the noble Lord, Lord Stonham. In principle, there is 255 nothing against this Amendment. But I think there are implications in it which should be seriously considered, and I have no doubt that the noble Lord will consider them. Subject to that, I should have thought we could carry this Amendment without delay.
§ LORD STOW HILL
Needless to say, I should be glad to consider with the noble Lord, Lord Stonham, or any other noble Lord who may wish to make any proposal, how this might work.
§ 6.20 p.m.
§ LORD STOW HILL moved Amendment No. 3:
§ After Clause 1, insert the following new clause:
§ Offences of molestation
§ ". A person commits an offence who in a street or public place persistently molests another person so as to cause annoyance to that other person with the intention of causing a breach of the peace or in such a manner and in such circumstances that it is likely that a breach of the peace will be caused:
§ Provided that no person shall be convicted of an offence under this section unless the person annoyed by such molestation and, in addition, not less than one other person give evidence of the conduct relied on by the prosecution as constituting such molestation."
The noble and learned Lord said: This is an Amendment of slightly more substance. I have previously deployed the case that I seek to make on the Amendment. It seems to me that we should take steps to safeguard against mistaken convictions, so far as we possibly can, and I have tried to do it in this way. I have followed pretty closely Section 5 of the Public Order Act. As one precaution against wrongful convictions, I have inserted the words:
with the intention of causing a breach of the peace or in such a manner and in such circumstances that it is likely that a breach of the peace will be caused.
The object of that provision is to limit the clause to the more serious case and to exclude from its ambit the more trivial case where a young man is audacious and saucy, perhaps, but has not transgressed beyond what in our daily concourse with 52 million people—we do not meet them all every day—we really have to put up with. That is the first feature of it.
§ Secondly, I have always felt uncertainty when I have listened to cases in which 256 the evidence is that an accused person has peered in the faces of various women. Over and over again I have heard the evidence of the prosecution that, "He walked up and down peering into the faces of women as they passed by. They appeared to be annoyed and went on." I always think myself that in that kind of evidence lurks the danger of a mistaken conviction in the kind of case I mentioned—a short-sighted, absent-minded person, perhaps really genuinely seeking some companionship, lonely and so on. I think that is dangerous, and therefore what I have provided is that there is no offence unless the accused person molests another person so as to cause annoyance to that other person. In other words, it must be shown there was an individual he would not leave alone; he went after that individual and kept on trying to attract the attention of that individual. Of course, he can commit a number of offences against different individuals, but in each case it must be shown against him that he persistently molested a particular individual. I believe that that is a safeguard because it would exclude from the ambit of the clause the kind of case I have seen so often where the evidence against an accused person is that he looked first at one woman and then at another woman, then at a third woman and then at a fourth. There can be mistakes in that connection.
§ Then I insert a proviso that at least two people have to give evidence, one the person molested and somebody else. It may well be said, "You will not often secure a conviction." That is my intention. I do not think one should often have convictions. There should be convictions only in the bad cases where, as I have said (I hope I do not repeat myself), the individual has gone too far and his conduct is really intolerable. There will however be convictions. Two women may be walking along and one is annoyed and gives evidence, and the other, her companion, will support her in evidence. A woman may be molested and a bystander is prepared to come forward to give evidence. That will happen only in a case where the incident is a more serious one. That is my intention.
§ I very well remember a case in an underground railway train (which I think would be a "public place" under the 257 Public Order Act 1936 and would, I suppose, apply here) where a young girl sat down in a nearly empty compartment. There was a gentleman opposite and a nasty disagreeable type came and sat next to the girl. He was very extrovert and insisted upon blowing his beery breath at her and making advances to her. In that sort of case the gentleman opposite may feel very much inclined to intervene forcibly. The young lady puts up with as much as she can and she then really becomes hysterical because he has gone too far, and the incident may end in the gentleman opposite requiring the disagreeable individual to go away. That would be a case in which both the young lady and the gentleman might be prepared to give evidence. It is a bad case where there is clearly a likelihood that a breach of the peace may be caused.
§ I am very glad to say that the gentleman concerned in the case I have in mind, known to me, asked the young lady if she would like to exchange places with him. She gladly accepted. The disagreeable person relapsed into a morose silence and the incident was ended. That is a case that ended in a different way, but it might well have come before the courts; and that would be my intention. I beg to move.
§ LORD CHORLEY
I think this is really a very dangerous Amendment. It goes beyond the Street Offences Act 1959, which is concerned purely with sexual offences.
§ LORD STOW HILL
I wonder whether the noble Lord would forgive me for interrupting because there is one other point I meant to add. I should be much obliged if the noble Lord would allow me to do so. I apologise for getting on to my feet again but there was one relevant point which I forgot to add. It is not limited to sexual offences. I said earlier that I regard the sort of molestation by a white lout of a coloured man in a place where a number of coloured people live as at least as objectionable and as something which the criminal law should be so fashioned as to stop. One can picture the white lout walking after the coloured man and using abusive epithets about him regarding his colour. That case I personally would 258 intend to cover. I think it would be within the scope of the clauses I have framed. I do not really see that there is any reason to limit this provision to sex solicitation. If one is really going to deal with molestation, let us deal with it properly. Let us bring in the kind of cases where there is really thoroughly disagreeable conduct which goes beyond what can be expected to be tolerated.
§ 6.26 p.m.
§ LORD CHORLEY
I am very glad that the noble and learned Lord mentioned this point, which in my submission is a very important one and makes this altogether too wide an Amendment. The Street Offences Act deals entirely with prostitution and with what one might call sexual nuisances in the streets. But this Amendment is not confined in any such way. It is true that the example which the noble and learned Lord gave when he mentioned that his Amendment had this wide extent is one which is allied to the sort of problem which is dealt with in the 1959 Act. But this Amendment is not of course limited like that in any sort of way. It is simply limited by this question of whether there might be a situation in which a breach of the peace could probably or possibly arise. That covers all sorts of conduct in the streets. It might cover the case of a too persistent flag seller. I myself have witnessed incidents where the too persistent flag seller has very nearly brought about a common assault. A much more serious case, and one which I suggest might happen quite frequently, is the case of the political leaflet distributor. Frequently one has seen in connection with the anti-Vietnam demonstrations and cases of that kind situations arising in which a breach of the peace is very likely owing to the persistence of the protagonists on each side, and particularly of course on the pacifist side. I do not blame them. They are making their case and are protagonists of very strong feeling in the community, and they carry that very often to a stage where a breach of the peace is likely to occur. It would be a very dangerous inroad on our methods of carrying out political propaganda in this country if we were to give the police the kind of powers for which the noble and learned Lord is asking.
259 I suggest that it is altogether wrong by a sidestep or a sidewind, so to speak, to bring into the Street Offences Act 1959 a matter of this intense importance. It is intensely important from the point of view of civil liberties. Last year in a powerful speech the noble Earl, Lord Arran, because he felt that my Bill might lead to interference with civil liberties, persuaded your Lordships in effect to throw it out. But I suggest that the danger inherent in this particular Amendment is far worse than anything that existed in last year's Bill. It is a matter which requires the very gravest consideration. It should be looked at from all angles, and I submit that a step of this kind should certainly not be taken by a sidewind in a Bill of this kind. I think there is a case, subject to proper safeguards, for making conduct in the streets which amounts to a nuisance—pedlars and such types of people often cause a nuisance—an offence, and it may well be that a properly framed Act of Parliament is needed to deal with this sort of conduct. But surely it ought not to be introduced by a sidewind in that way. Therefore I suggest to the noble and learned Lord that he should withdraw this Amendment and think about it again.
§ BARONESS STOCKS
The case of a man persistently following another man and making offensive remarks about his colour, as indeed sometimes happens, would surely already be covered by the Race Relations Act. Meanwhile, might not this Amendment be applied to importuning by somebody who supported a strike and wished to importune a possible strike-breaker? I agree with the noble Lord that it would open the way to all sorts of forms of molestation.
§ BARONESS BIRK
When my noble friend Lord Stow Hill was answering on the first Amendment he seemed to think it answered my point on the breach of the peace, but I entirely agree with my noble friend Lady Stocks, that this Amendment enlarges it. There would have to be a much bigger incident before the man or the woman had any protection, especially on the second paragraph. The words,and in addition not less than one other person to give evidence260 seem to nullify the whole purpose of it. If a woman wants to complain about a kerb-crawler, or, if accosted, is inconvenienced and upset, it means that unless there is another witness—and usually these things take place where there are no other witnesses—she or he (because it may be a man) will have no case at all. These things together seem to me to nullify the effects of what the original Bill was trying to do.
§ 6.33 p.m.
§ LORD STONHAM
My noble friend Lord Chorley and my noble friend Lady Birk feel that this Amendment would increase the danger. I know this is a point that my noble friend Lord Stow Hill will look at. I have to say to all my noble friends that my view is that this Amendment will do almost nothing at all. May I say briefly why I take that view?
My noble friend Lord Stow Hill proposes by this Amendment to create the quite new offence of persistent molestation, and he intends it to cover many offences, including kerb-crawlers. We are doubtful, however, whether it would be effective for this purpose, or indeed whether it would have any practical value for any other purpose. My noble friend has once or twice quoted Section 5 of the Public Order Act 1936, which, as he has reminded us, provides that:Any person who in any public place uses threatening, abusive or insulting words or behaviour with the intention of provoking a breach of the peace, or whereby a breach of the peace is likely to be occasioned, shall be Guilty of an offence ".Section 9(1) of the Act has a definition of "public place" which in our view is wide enough to include a street. Although the Public Order Act offence was primarily intended to deal with disturbances arising in public meetings and demonstrations it was nevertheless thought wide enough to cover any conduct that would be likely to be caught by the proposed new offences, and I agree with my noble friend Lady Stocks that the kind of offence which she described is likely to be caught (or possibly it depends on the exact circumstances) under the Race Relations Act.
Admittedly, the words "persistently molests" used in the Amendment could by themselves cover conduct which falls 261 short of the threatening, abusive or insulting words or behaviour required for the Public Order Act offence. For example, the man who pestered a woman by persistently following her and speaking to her, without using patently insulting language, might be said to be persistently molesting, which I have no doubt is what my noble friend has in mind. But the proposed offence would require the conduct to amount to persistent molestation of the person so as to cause annoyance to that person with the intention of causing a breach of the peace, or in such a manner or in such circumstances that it is likely that a breach of the peace will be caused. Taking all these ingredients together I think that molestation in such circumstances would involve words or behaviour of a threatening, abusive or insulting kind, and I doubt whether, in practice, my noble friend's Amendment, if accepted, would cover any conduct that cannot already be dealt with under Section 5 of the Public Order Act 1936. Indeed, when we were considering the first Amendment I rather felt that my noble friend Lord Stow Hill was arguing to that effect.
There is the further difficulty to which my noble friend Lady Birk drew attention, that the new offence proposed to be inserted by my noble and learned friend would require evidence of the molestation to be given not only by the person molested but, in addition, by not less than one other person. We are all agreed that persons molested are seldom willing to go to court to give evidence of the fact, and the requirement that there should be evidence from at least one other eye-witness of the conduct would, in my view, make the provision perhaps even impossible to enforce in most cases. But if we are thinking just of kerb-crawling—and in the context of this Bill I think this is what we should be thinking about—the provision would in any event be unlikely to be of value in dealing with such cases, because in many of them it would be difficult to prove that the conduct was such as to be likely to cause a breach of the peace: and this quite apart from the fact that in most cases there would be no witness other than the person molested. I have not had experience of these matters, but I thought the usual form with the kerb-crawler was that he attempted to pick 262 up one women and so that there would rarely be a witness, and these would be the most serious cases, about which I am sure my noble friend is mainly concerned. There would not be a possibility, even if the molested person was willing to come forward, of getting a conviction under this clause because there would be no witness.
I am in this dilemma. I am impressed by what my noble friend Lord Chorley said; that he thought this was a danger. On the other hand, I feel that the Amendment almost does nothing, and therefore, as always, apart from any decision my noble and learned friend Lord Stow Hill may make about his Amendment it is entirely for the Committee to decide. We do not think that it would serve any practical purpose if it were included in the Bill, but if the Committee feel that there should be a separate offence of molestation then the Amendment may be accepted. But we should certainly have to give further consideration to its terms. with particular reference to the points made by my noble friend Lord Chorley. But, as I say, without further consideration I do not think the Amendment makes much difference to the Bill at all.
§ LORD CHORLEY
What the Minister has just said about the ineffectiveness of this clause to deal with kerb-crawling reminded me that in an intervention I promised the noble and learned Lord, Lord Stow Hill, that I would adduce reasons why it was ineffective.
What the Minister has said about a breach of the peace is one of these reasons. But if your Lordships will look at the Amendment, you will see that it refers to "persistently molesting another person''. Let us try to apply this to the typical kerb-crawler. He does not persistently molest any particular person. He drives along soliciting one woman after another, and if one pushes him off he goes a bit further and tries to find another one. How could you possibly successfully bring a prosecution against him under the words of this Amendment? Indeed, could it be said that this was really molestation? Molestation is surely something a little more serious than driving up to a woman and inviting her to come for a drive, which is the typical approach of the kerb-crawler. So in addition to this breach of the peace point, which is another very 263 important point why this Amendment would not bite, so to speak, on the kerb-crawler, there are these two other reasons, each of which, I suggest, are unanswerable. Therefore, in a sense my clause has gone and the kerb-crawler is being given a charter, and I would suggest that the noble and learned Lord is leaving him with that charter, because this Amendment certainly will not touch the kerb-crawler at all.
§ LORD STOW HILL
I thought the noble Lord, Lord Chorley, might be grateful for small mercies. It might well be that if this clause goes the whole of his Bill goes. That would not break my heart. But at least I am putting something in place of it. When the noble Lord first got on his feet he was full of gloomy forebodings; he thought this proposal might have a terrific effect, with all sorts of people dragged before the courts. I thought the answer was given by the noble Lord, Lord Stonham, very effectively when he said that in his view it would not have any effect at all. I do not know if that satisfies the noble Lord, Lord Chorley. If the noble Lord, Lord Stonham, is right, I hope the noble Lord will agree that there is no really adequate ground for his anxieties.
May I come to the argument of the noble Baroness, Lady Birk? She says it will have inadequate effect, very little effect. It is my intention that it should be applicable only in a thoroughly bad case. The noble Lord, Lord Chorley, says it will not apply to a kerb-crawler because he does not persistently molest one individual; he says something to one lady and then passes on and says something to another and a third. I think it would be repugnant to common sense if he could be prosecuted for that. What happens? He says something to one lady, who says nothing and passes on and forgets it, and he goes to a second and a third, who do the same, who take no notice and pass on. People ought not to be dragged into court and the time of the police and everybody else wasted if that is what they have done. If he does pursue one lady, goes 10 or 20 or 40 or 50 yards at a crawling pace beside somebody on the pavement, and persistently makes indecent remarks to her or something of that sort, then that should be the sort of thing the Bill deals with.
264 I am not, if I may say so with great respect, content to leave the Bill in a position in which on the evidence of one person another person shall be convicted of an offence of that kind. Why? Because I should have thought that experience showed us that of 100 women subjected to treatment of this sort 99 take no notice and pass on; if there is a turning they turn to the left and leave the man in his car and that is the end of it. Generally speaking, if a kerb-crawler sees he is having no luck he gives it up because he is wasting his time. But if he does it persistently in the way I have described and is so persistent that she feels inclined to strike him—I suggested with an umbrella but whatever instrument it may be—if somebody else sees it (after all the streets are not completely empty; somebody else can see it and is equally indignant and equally inclined to take vengeance on the wrongdoer) that is the sort of case I have in mind which should conic to court.
I gave the example of the case of the Underground railway. That would be clearly within the scope of my clause: the case of the young girl sitting down and a ruffian comes and sits next to her. I do not want to repeat the circumstances of that case. If it had not ended in the way it did by her changing places with the gentleman opposite, and if the annoyance had got so that it was likely that one or other would burst out, the offence would be committed.
The noble Lord, Lord Stonham, said a kerb-crawler does not generally molest two ladies at the same time. Sometimes he does. Sometimes the second person will be an independent person. It may be a companion of the lady; one does not know. Once you have the safeguard of two people ready to swear on oath, so that you can eliminate the risk of the unbalanced woman being the only person to give evidence against a man, I should be perfectly content for it to go to the court. That is the sort of case I should have thought Sir John Wolfenden was considering when he put into the Report the passage that I read about kerb-crawling. He is frightened of charges being made against innocent motorists. I try to eliminate the risk by saying there should be two people to give evidence. If it means fewer prosecutions, so much the better.
§ BARONESS BIRK
I wonder whether I may ask the noble and learned Lord a question. Am I correct in assuming that by the passing of his first Amendment the situation still remains where the prostitute can be called and known as a common prostitute? And now we have added the male prostitute, and left loitering or soliciting in the case of one person. But a man kerb crawling can go on and on until it is decided at some point that he has persistently molested enough people. It seems to me a most extraordinary discrepancy. Does the noble Lord mean that the Bill can go forward in that rather contradictory way?
§ LORD STOW HILL
I am sorry to incur the displeasure of the noble Baroness. I should have thought the clause described a perfectly clear and intelligible set of circumstances. If he speaks to one person persistently so that she is prepared to give evidence, together with somebody else ready to give evidence there being a likelihood of a breach of the peace. a provable offence is corn-milted. I do not see anything obscure in that. I said in answer to the noble Lord, Lord Chorley. that I did not think it would be right to bring before the courts a person who drove a car and said something to one person and then to another and then to a third, when what happens is that each passes on and does not pay much attention to it and that is the end of it. One has to draw the line between what is serious and intolerable conduct and the sort of disagreeable conduct that one has to put up with in everyday life. The police cannot insulate one against the latter; nor can the law. I would limit it to the serious sort of case, whether it is to do with sex or cat-calling or whatever it is.
The noble Baroness, Lady Stocks, asked whether the matter is not covered by the Race Relations Act. In some cases, yes, in some cases, no. Furthermore, the noble Lord, Lord Stonham, said a good deal of it would be overlapped by the Public Order Act, Section 5. I agree with him that in a good many cases it would. but I suppose not the case in which a person who has molested a lady or anybody else could not be shown to have used insulting or threatening language hut had approached her on a more conciliatory basis and in dulcet tones, and therefore it might be 266 a matter of uncertainty as to whether insulting or threatening language was used. I say perfectly frankly that my object is to eliminate the sort of case which is not a serious case. Where it is a serious case it will be within the section and it will be subject to serious penalty. It is my intention that that should be the result; and I respectfully submit to the House that I do achieve it.
§ BARONESS STOCKS
Would it apply to the molestation of a potential blackleg in connection with a trade dispute? If it did, so much the better; but it would not be exactly a sexual offence.
§ LORD STOW HILL
No, it would not be a sexual offence, and it is my intention that this should not be limited to sexual offences. I can conceive circumstances in which that might happen. What would have to be shown is, first, that there is molestation of a persistent character of one person to his annoyance; secondly, that it was either with the intention of causing a breach of the peace or in circumstances in which it was likely to; and, thirdly, that the person molested, plus one other person, was ready to give evidence of the molestation. I submit that that is a reasonable result.
§ LORD STONHAM
I gather that my noble and learned friend wishes to persist in his Amendment and to add it to the Bill. I am not going to advise the Committee against that step, but I hope my noble friend accepts that we feel that if this Amendment is accepted by the Committee and added to the Bill we shall have to give consideration to its terms.
§ LORD STOW HILL
May I say at once that my only purpose in putting down these Amendments is to try in such way as I can to improve the Bill. I should be only too glad of advice and help. which I am perfectly ready to accept. I have not got far in achieving my objective, but I believe I have gone some distance in that at any rate the Bill has received some consideration. I should be only too happy to receive advice, and delighted to co-operate with the Home Office or the Government in any changes that they may wish to discuss with me.
§ 6.52 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?267
§ Their Lordships divided: Contents, 29; Not-Contents, 12.
|Auckland, L.||Hacking, L.||Royle, L.|
|Barrington, V.||Hall, V.||St. Oswald, L.|
|Belstead, L.||Henley, L.||Sandford, L.|
|Bowles, L.||Kinnoull, E.||Sandys, L.|
|Colville of Culross, V.||Lambert, V.||Sempill, Ly.|
|Conesford, L.||Lindgren, L. [Teller.]||Somers, L.|
|Daventry, V.||Massereene and Ferrard, V.||Stow Hill, L. [Teller.]|
|Denham, L.||Mowbray and Stourton, L.||Trefgarne, L.|
|Dilhorne, V.||Rankeillour, L.||Vivian, L.|
|Falkland, V.||Redesdale, L.|
|Beswick, L.||Collison, L.||St. Davids, V.|
|Birk, Bs. [Teller.]||Listowel, E.||Stocks, Bs. [Teller.]|
|Burden, L.||Phillips, Bs.||Strabolgi, L.|
|Chorley, L.||Plummer, Bs.||Wise, L.|
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 7.0 p.m.
§ LORD STOW HILL moved Amendment No. 4:
§ After Clause 1 insert the following new clause:
§ Penalties and procedure
§ ".A person convicted of an offence under the preceding section shall be liable
- (a) on summary conviction to a fine not exceeding £25 and on a second or subsequent conviction to a fine not exceeding £100, and
- (b) on indictment to a fine not exceeding £100 or to a term of imprisonment not exceeding six months or to both such fine and such imprisonment:
§ Provided that a person against whom proceedings are taken summarily for any such offence shall be entitled, if he so opts, to be tried by indictment, and at the outset of any such proceedings such person shall be informed in open court that he is entitled at his option to be proceeded against by indictment and in the event of his thereupon exercising his option such proceedings shall continue in all respects as if they were proceedings by indictment."
§ The noble and learned Lord said: I hope I may deal with this Amendment shortly. It provides the penalties, and I think perhaps it is not necessary for me to say more than that they are not trivial but they are not gravely severe. The proviso enables an accused person to opt for trial by jury. That would not be effected by Section 25 of the Magistrates' Courts Act 1952. I think it is necessary only for me to say that it would not be brought about automatically by that Act, and therefore I have to provide for it separately. The 268 accused has to be informed in open court, and he must opt straight away if he wishes to be tried by a jury. I beg to move.
§ LORD CHORLEY
The noble Lord has suggested that the present fines should be substantially stepped up. The 1959 Act introduced very much heavier fines than those which had previously existed in connection with these street offences, and I think the general feeling was that they were pretty steep. My noble friend is now suggesting that these should be heavily increased. The present fine for the first offence is £10; he proposes to put that up to £25. I think (if my memory is correct) the second offence attracts a fine of up to £25, which he proposes to put up to £100, which I suggest is a very heavy fine indeed for the type of conduct with which this clause deals. Fines of this nature ought to be looked at in connection with the other fines for this sort of conduct, and I think it is a mistake to approach individual offences of this kind piecemeal.
Moreover, in the later part of this Amendment it is suggested that this type of offence should be dealt with on indictment, and imprisonment, even on a first offence, would apparently be possible. I suggest that conduct like this is essentially the sort of conduct which should be dealt with summarily and not made the subject matter of the elaborate process of trial on indictment before a jury, with all the paraphernalia involved. That is making altogether too heavy weather of it. The noble Lord himself has said that in the ordinary way this is very trivial sort of 269 conduct, and he hopes that very few cases will be brought under it. Yet he wants it tried on indictment, with a sentence of imprisonment as a possible penalty. I suggest that he should not press this Amendment.
§ LORD ROYLE
I would support my noble friend Lord Chorley in this matter, except that I do not agree with him and agree with my noble friend Lord Stow Hill with regard to paragraph (a), trial by magistrates and a fine not exceeding £25 on a first offence. I do not regard £25 as being too heavy, because obviously magistrates would exercise their discretion with regard to the matter and in accordance with the case. But I agree with my noble friend Lord Chorley that to think of these offences in terms of indictment is carrying the matter too far, and therefore we should not accept the second part, paragraph (b). I am prepared to accept paragraph (a) in the Amendment but not paragraph (b), because I do not believe this is something which ought to go through the whole course of the higher courts.
§ LORD STOW HILL
May I say, in answer to my noble friend Lord Chorley, that I deliberately made the maximum fines rather higher than those in the 1959 Act because, as I have explained to the Committee, it was my intention that this new clause should apply only to the more serious type of conduct. As my noble friend Lord Royle has said, the magistrates need not impose a maximum fine; this is simply an empowering clause which enables them to impose that fine if they think it appropriate. My noble friend Lord Royle asked whether one can envisage a case in which conduct of this sort ought, in the first place, to go to indictment. I take his point, and I should like to give it further thought. I should not have thought it was within the Rules of the House to strike out that point now, but certainly I will give the matter further thought. I should, however, be very reluctant to omit the proviso which enables the accused person to exercise his option to go before a jury. That is because, if there is a charge of this sort, frequently it will be one which involves his character, his sexual behaviour, his whole reputation. It may bring ruin to him, and it seems to me that that is a matter on which, if he 270 desires the opportunity of trial before a jury, he should be entitled to have one. And I think that the defendant ought to be told that he can go before a jury if he wishes to do so. Therefore, while I do not, with great respect to my noble friend Lord Chorley, feel that the fines in paragraph (a) are too high, I see the force of the argument of my noble friend Lord Royle about paragraph (b), and trial on indictment in the first instance. As I say, however, I should be very reluctant to leave out the proviso. As it is not possible, I believe, under the Rules of the House, to move the Amendment in any other form than that in which it is on the Order Paper, I will ask the Committee to approve it, for the time being, in that form.
§ 7.8 p.m.
§ LORD STONHAM
I am wholly in agreement with what has been said by my noble friend Lord Chorley and my noble friend Lord Royle with regard to penalties. I make it clear to your Lordships that as we have accepted Amendment No. 3 it is logical to accept Amendment No. 4, which is at present before the Committee. But the penalties will need a great deal of further consideration and amendment. Even if it were possible (and it is possible to consider a manuscript Amendment) it is extremely unwise to attempt to amend on one's feet. I would put it to my noble friend Lord Stow Hill that this Amendment would be unacceptable and most unwise, except on a clear understanding that he accepts that the proposed penalties must be modified.
But I think that the considerations of this Amendment go deeper than the mere penalties themselves. My noble friend proposes in the Amendment that the offence of molestation should be a hybrid, triable either summarily or on indictment, and it contains the quite unusual provision enabling an accused person who is proceeded against summarily to claim the right to trial by jury. We think that the offence of molestation is scarcely serious enough to warrant making it triable on indictment. Indeed, my noble friend Lord Stow Hill apparently recognises this, because the penalties imposed in the clause on conviction on indictment, as regards both the amount of the fine and the length of the term of imprisonment, are very low, 271 being well within the maxima normally available to the magistrates' court. I am sure my noble friend is aware of these things. It is true that the comparable offence under Section 5 of the Public Order Act may be tried on indictment, but that provision is clearly designed to cover more serious misconduct than the proposed offence of molestation.
My noble friend made it perfectly clear that his object in this part of the Amendment is to ensure that a person accused of this offence should have the right to claim jury trial. But under the general law, in Section 25 of the Magistrates' Courts Act 1952, anyone charged before a magistrates' court with an offence for which he is liable to be imprisoned by that court for more than three months can claim to be tried by a jury. Apart from this general right of trial by jury where the maximum summary penalty is more than three months, there are very few precedents even in 19th century Statutes for giving an accused tried for a summary offence a right to claim trial by jury where the maximum penalty is less. Indeed, there is no such precedent in modern legislation and there seems no special case for this kind of exceptional provision which my noble friend suggests in relation to this proposed offence of molestation. But if the clause were redrafted so as to make available on summary conviction the penalties proposed on conviction on indictment, and if the specific reference to a prosecution on indictment were dropped altogether, the accused would still have the right to claim trial by jury without elaborate special provision, as I hope my noble friend will accept.
On merits, the case for providing for imprisonment for more than three months on conviction of this offence is weak, and we think it would be undesirable to provide for punishment greater than the offence warrants in order to enable a defendant to claim trial by jury. It would be equally unjustifiable to create a special category of case in which a defendant could, notwithstanding the relative triviality of the offence as marked by the maximum penalty provided by Parliament, and the established arrangements for the administration of criminal justice in relation to the less serious offences by magistrates' courts, determine for himself the mode of trial to be employed. I submit that these 272 considerations are more serious than the actual penalties, although as I have indicated it would appear that the maximum penalties proposed by my noble friend are greater than would be justified by the nature of the offences.
I thought it advisable to say what I have said to him, in order that he could consider this aspect and the possibility of amendment at a later stage, so as to get rid of the alternative of an indictable offence, but leaving it to the person concerned under other legislation to apply for trial by jury if he felt so disposed. I hope my noble friend will accept that as an endeavour to be helpful.
§ LORD STOW HILL
I am grateful to my noble friend for endeavouring to be helpful, but I must say that I am not at all convinced by his arguments. To take, first, trial on summary conviction, of course I know perfectly well, having looked up the Statute, that if I had provided that the accused could be sent to prison for three months or more on summary conviction he would have had an automatic right of trial by jury. I think it not right that on summary conviction he should be liable in this sort of case to imprisonment. He should be liable, in my judgment, only to a fine. Therefore, if he is ever to be allowed to go for trial before a jury, it must be because he is specifically given an option by the Statute. That is what I seek to give him. I am not impressed by the argument that this is not a customary mode of legislation. This is one which deals with a very special sort of behaviour. To my mind, if a man is charged with soliciting women, with the result that he may be expelled from his job and his reputation ruined, he ought to be entitled to ask that the matter should go for trial by jury.
The noble Lord, from a brief which was obviously prepared before the argument that I adduced had been heard, talked about this offence as a triviality. I have tried again and again during the course of this debate to explain that I have endeavoured so to draft the clause that it should only apply to the more serious sort of misconduct and not to trivialities. I believe I have succeeded in doing that. I have introduced the element about a breach of the peace, persistent molestation of one person and so 273 on. If this is not a triviality, then it seems to me that there should be a moderately heavy fine prescribed when the case comes before a magistrates' court.
I take the point—and would like to give it further thought—made by the noble Lord, Lord Royle, that there should be no option on the part of the prosecution to proceed by way of indictment in the first place. if, I may respectfully say so, I should have thought there was force in that argument, and that I was mistaken in providing as I have provided in paragraph (b). But I think it is essential in legislation of this kind, where a man's character and whole livelihood and possibly his whole mode of life for years—perhaps a young man on the threshold of his career—may be at risk, that he should be entitled, if he wishes to have a jury's opinion, to opt for a jury. That is what I have so provided. I would not myself feel able to accede to the invitation to accept the changes suggested by the noble Lord. I should like to ask the Committee to accept the Amendment which is before it in its entirety, but
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Clause 2 [Definitions]:
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ LORD STOW HILL
The Motion in my name to leave out Clause 2 is really consequential on what your Lordships have already decided. I dealt with the aspect of the Bill which equates male homosexuals with female homosexuals, and I should have thought, in those circumstances, that this could be regarded as purely consequential. So is the second part of the clause—
274 I would indicate without commitment that I should like to consider very carefully whether I ought to omit paragraph (b).
§ LORD ROYLE
I wonder whether I may appeal to my noble friend to proceed the other way round, to withdraw the Amendment and think again about it before the Report stage, to see whether he can meet with what is in our minds on the matter. It seems to me that that is the better way round, and if he is still sticking to his present views about the whole of the Amendment he can then put the Amendment down again in this form on Report stage. I should feel much happier if this Amendment were not carried at this moment, and if we had the opportunity to see an alternative draft at Report stage.
§ 7.20 p.m.
§ On Question, Whether the said Amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 21; Not-Contents, 12.273
|Belstead, L.||Falkland, V.||Redesdale, L.|
|Bowden, L.||Henley, L.||St. Oswald, L.|
|Colville of Culross, V.||Kinnoull, E.||Sandford, L.|
|Conesford, L.||Lambert, V.||Sandys, L.|
|Daventry, V.||Lindgren, L. [Teller.]||Sempill, Ly.|
|Denham, L.||Mowbray and Stourton, L.||Stow Hill, L. [Teller.]|
|Dilhorne, V.||Rankeillour, L.||Trefgarne, L.|
|Birk, Bs.||Plummer, Bs.||Stocks, Bs.|
|Burden, L.||Royle, L. [Teller.]||Stonham, L.|
|Chorley, L. [Teller.]||St. Davids, V.||Strabolgi, L.|
|Collison, L.||Shepherd, L.||Wise, L.|
§ VISCOUNT DILHORNE
May I ask the noble Lord whether all the other Motions and the Amendment in his name—to leave out Clause 3, to leave out Clause 4 and the Amendment to the Title—are not consequential? Because if they are all consequential, would it not be to the convenience of the Committee at this hour to deal with them together?
§ LORD STOW HILL
I think they are all consequential, and if it suits the convenience of the Committee I should very much like to deal with them together. I do not think they raise any issue of principle.
§ LORD CHORLEY
I do not think that the Motion to leave out Clause 3 is really consequential, although I would not raise any objection to it. That is the Repeals clause.
THE CHAIRMAN OF COMMITTEES
Does the noble Lord wish to deal with the consequential Motions and Amendment en bloc?
§ LORD STONHAM
Please let us do this thing in order. The Motion to remove Clause 2 is, of course, consequential on Lord Stow Hill's Amendment No. 1, but that to remove Clause 3, if the Committee agrees to it, is not consequential on anything. I would submit that the Motion before the Committee is that Clause 2 be deleted.
§ On Question, Clause 2 disagreed to.
§ Clause 3 [Amendment of s.1(5) of Act of 1959]:
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ LORD STOW HILL
I should have thought, with respect, that my Motion to leave out Clause 3 is consequential. That is the clause in the Bill which leaves out, in effect, the end of Section 1, subsection (5), of the Act of 1959. In other words, it leaves out that provision in Section 1(5) of the Act of 1959 which enables convictions under various Statutes which are mentioned in the subsection to be taken into account in answering the question whether the prostitute concerned is, or is not, a common prostitute. I would respectfully submit to the Committee that in view of the decisions already made, quite clearly those words must remain in Section 1(5) of the 1959 Act, and that in those circumstances my Motion is clearly a purely consequential one.
§ On Question, Clause 3 disagreed to.
§ Clause 4 [Repeal]:
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ LORD STOW HILL
The Motion to leave out Clause 4 is consequential in this sense: that unless Clause 4 is taken out of the Bill which is before the Com- 276 mittee then the warning procedure which is specified in Section 2 of the 1959 Act is no longer applicable. I should have thought that that was a clear protection for the prostitute or for the innocent woman who is mistakenly warned as a prostitute. There can be no doubt, as the original section of the 1959 Act is to remain substantially as it was, that the warning procedure should remain in.
§ On Question, Clause 4 disagreed to.
§ Remaining clause agreed to.
§ In the Title:
The Title: at end insert ("and for connected purposes").—(Lord Stow Hill.)
§ VISCOUNT DILHORNE
This Amendment being for connected purposes", should not this Bill in future be known as Lord Stow Hill's Bill and not Lord Chorley's? I am sure that we all sympathise with the noble Lord, Lord Chorley, who is leaving the Chamber, in his enthusiasm for what was his measure. I am sorry that he cannot give support for what has now become Lord Stow Hill's measure.
§ On Question, Amendment agreed to.
§ Title, as amended, agreed to.
§ House resumed: Bill reported with Amendments.