§ 8.2 p.m.
§ House again in Committee.
THE EARL OF MANSFIELD moved Amendment No. 12:
After Clause 13 insert the following new clause:
§ Borstal training
§ (" .—(1) Without prejudice to any other enactment prohibiting or restricting the imposition of imprisonment on persons of any age, a sentence or sentences of imprisonment amounting to more than a period of six months shall not be passed by any court on a person within the limits of age which qualify for a sentence of borstal training unless the court is of the opinion that a sentence of borstal training would be ineffective in all the circumstances of the case and no other method of dealing with him is appropriate.
§ (2) Where a magistrates court imposes a sentence or sentences of imprisonment amounting to more than six months on any such person as is mentioned in subsection (1) of this section the court shall state the reason for its opinion that no other method of dealing with him is appropriate and cause that reason to be specified in the warrant of commitment and to be entered in the register.
§ The noble Lord said: This debate, and I shall try and keep it as short as possible, will, I anticipate, cause a direct conflict between my noble friend Lord Colville of Culross, who speaks for the Government, and what I hope will be a goodly number of noble Lords from both sides of these benches. I say that because I see that at an earlier stage an Amendment was at least tabled by the noble Lord, Lord Donaldson of Kingsbridge, and subscribed to by the noble Baroness, Lady Birk, but in the Marshalled List it appears to have got lost. I hope, however, as the criminal classes say, that neither of those two noble people have lost their bottle and that they will therefore speak up for my Amendment.
§ From time to time, occasions occur when the legislature and your Lordships' House with it pass measures which although passed with every good ambition and in the greatest of good faith have the most appalling results. Section 3 of the Criminal Justice Act 1961 is one of those. There are others with which one could regale the House ; perhaps Section 1 of the Road Safety Act 1967 is pretty nearly as bad. I say that because of the 621 effect which Section 3 has had upon our criminal system. Almost every judge of the High Court, certainly every judge of the Court of Appeal and a number of noble and learned Lords have from time to time said what a bad and unfair fetter this particular enactment is upon the discretion of the courts. Of course, the Section 3 to which I speak, in effect, prohibits a court from passing a sentence of imprisonment on a person aged between 17 and 21 years unless the sentence is six months or less or three years or more. The unfairness which this enactment has produced over the years is really threefold.
§ Firstly, it is unfair upon many of the offenders who are brought before the courts. Wrongly, as it happens, judges are of the opinion that a period of borstal training would be ineffective in their case, are unwilling or reluctant to sentence them to the derisory term of six months and they therefore give them three years. There are many people in gaols now who are serving longer terms of imprisonment than the courts thought proper in the circumstances but who were unwilling to give them the derisory term of six months or less. Secondly, this enactment has been unfair on co-defendants. In various instances, and it happens frequently, you get two persons who are jointly charged and the court decides that the younger one of the two as it happens is perhaps more to blame. He gets the sentence of three years, but so does the other defendant in order to achieve parity.
§ Thirdly, there is unfairness and injustice on the name of the law itself. On many occasions in country assizes I have sat and literally blushed under my wig when in a case which has excited considerable local comment and where local feeling and indignation has been aroused, a judge sentences some young person to six months imprisonment or less not because that is the right thing to do but because of this Section 3 of the 1961 Act. The comments of the various judges in various and many different types of case are so numerous and so condemning that I will not attempt to repeat any of them to your Lordships because so many of your Lordships know as much about this as anyone. Even the noble Lord, Lord Donaldson of Kingsbridge, who persists in telling us that he is a member of the laity, although I very 622 much question his amateur status—I hope I am not being offensive—knows of this iniquitous piece of legislation and the effect it has had over the last ten or eleven years, as indeed does nearly everybody.
§ The question is, therefore, what is to be done about it? Is the situation to remain? If it is to be altered how is it to be altered and when is it to be altered? I am very conscious of the fact that this measure—that is to say, Section 3—was discussed in the other place not quite in the context of my new clause to-night but fairly similar. My feelings on the subject are that this is and has been such a scandal on our national face of justice for so long that it is proper that it should be again ventilated not in some Standing Committee in the other place but on the Floor of your Lordships' House so that those who wish to apologise for this system can do so and those who I hope will join with me in condemning it may also have the chance.
§ The lack of logic which has been displayed before now is this. I yield to no one in my admiration for what the borstal system can do and on occasions does do. But I would never want any person to go to prison of whatever age ; still less a person under the age of 21. There are, however, occasions when a person under 21 has to go to prison for whatever reason ; and for the sake of logic, if not fairness, in my submission he should be sent for a period of imprisonment that the court thinks is just in the circumstances and not for a term of imprisonment which is artificially hatched out in the manner of Section 3.
§ To take the individual—because that is what the court is bound to do—there are a number of offenders between seventeen and twenty-one who simply are not suitable for borstal. There is the sexually mature young man who perhaps very badly assaults a girl indecently. He may well have a good job, he may well not be in need of any training at all, he may well not be criminal in the ordinary course of events. He really must lose his liberty, but should not have an indeterminate sentence to borstal. What can be done? At the moment, what I have described. Then there is a category of people not in need of training for the reasons I have given. Perhaps they can earn their own living, hut they wish to 623 behave in a disgraceful way—I am thinking of gang fights, flick knives, stabbing. If they go to borstal training it is not going to do them any good and could well do a lot of the inhabitants of borstal a good deal of harm. They are frequently well educated, frequently have a good deal of money. There is a third category of offender who in the public interest should not go to borstal, who is so bad and so wicked that he will not derive any good from borstal and will contaminate many of the youngsters with whom he comes into contact. All these types of people—one hesitates to say it, but it must be faced—have no need for borstal and should not be sent there.
§ If it appears to a judge, sitting in his judicial capacity, that somebody should not go to borstal, then the question arises, what is to happen? In this instance I put the cart before the horse, because no judge should make that decision before he has taken several others. First of all, what is he to do with the offender? Secondly, if he is to deprive him of his liberty and cannot put him on probation or something like that, can he send him to borstal? And if he cannot, a sentence of imprisonment has to be faced. My plea, and the purpose of this new clause, is that it should be faced logically and fairly. The way I have drafted the new clause, as your Lordships will see, is so that it follows closely on the last clause which the Committee was discussing ; that is to say, Clause 13. If somebody under twenty-one must go to prison, the court should not pass that sentence without taking the most careful and hard look at all the circumstances surrounding the case. If a superior court is of the opinion that it must be prison, then it should say so. If a magistrates' court is of the opinion that it must be prison—and, with respect to the noble Viscount, Lord Colville, under the new Drugs Act a magistrates' court can sentence to imprisonment for more than six months—then they have to give their reasons on the register. That subject has already been discussed in your Lordships' House.
§ There will be those who say—I have no doubt the noble Viscount will be one —that the Advisory Council of which the noble Baroness, Lady Wootton, is a member is inquiring into this problem 624 and we should wait until they come up with some solution, when they do and if they do. I understand from what was said in another place that the Council may report in a matter of months. If it does, and it has a recommendation, I suppose it could be put into some kind of Bill in a matter of years, and this Bill could then find itself in front of your Lordships—another Criminal Justice Bill of some kind—and be debated. This may literally take years, and in my submission to this Committee the matter is too important and has been a scandal on the face of our court life for too long to wait for that Council to pronounce, when and if it does. At the risk of being told that I am presumptuous in anticipating what this Council is going to say, my Amendment puts a person aged between 17 and 21 in precisely the same position as his elders if not betters—a sympathetic view from the court, followed, if necessary, by the necessary penal action. I beg to move.
§ 8.15 p.m.
§ BARONESS WOOTTON OF ABINGER
I must apologise to the noble Earl for not having heard his opening words owing to there being something wrong with the public address system. As he rightly anticipated, I, on behalf of the Penal Advisory Council, would strongly urge that he does not proceed with this Amendment. It is likely that the Council will report, I think I can say, within a matter of months. I think it is very unlikely that no change will be made—I cannot speak for the present Government—within the matter of years which the noble Earl anticipates. I should have thought that something on the lines of what the Council may report, or perhaps some improvement or perhaps some less good version, will be produced much more quickly, because it is a matter, I agree, of great urgency.
I have two comments to make on the merits of the noble Earl's Amendment. One is that I think it may have a disastrous effect which he perhaps has not anticipated. He does say that sentences of imprisonment amounting to more than six months are not to be passed by a court on any person within borstal ageunless the court is of the opinion that a sentence of borstal training would be ineffective in all the circumstances of the case …".625 I do not like to say it, but if the noble Earl will look at the effect of the borstal system, judged by the reconviction statistics, he will agree that the courts will be tempted to say borstal training is extremely likely to be ineffective in a great many cases. He may in point of fact he sending a great many people to prison who would not otherwise go there.
These apparently not very successful results of the borstal system are one of the matters before the Penal Advisory Council. I do not think anybody likes—at least I have yet to meet anybody who likes—Section 3 of the Act of 1961, but that hangs together with this whole question of the effectiveness of the borstal system and the need for wide consideration of what ought to be done with young men and women of borstal age. If radically different arrangements are to be made now, it seems more than likely that within a fairly short period, if, as we hope, the Government take some notice of the report we intend to present, other and perhaps more radical changes will have to be made. The whole of the young offender system is at the moment in a state of flux, in a state to some extent of disturbance and disorganisation. It knows it is being reviewed, and it knows it is not able to do the job it was originally set up to do: to train selected trainable people. The present law prevents that because it gives it everybody within these ages. It is therefore already sufficiently disturbed. I think it would be quite disastrous if this Amendment were adopted and then perhaps whatever Government was in power smiled on the Council's report, or something like it, and there was a second disturbance. For the sake of the people trying to run the system, I think it would be wise to hold our hands, at least for a few months.
§ LORD WELLS-PESTELL
I find myself in complete support of the noble Earl and also of my noble friend Lady Wootton. It is not in the least confusing, if I may say so, because I think the noble Earl has made out a first-class case for the repeal of Section 3 of the Criminal Justice Act 1961. I would say—I would not ask my noble friend Baroness Wootton for her view—the borstal system in this country by and large has failed, but I think we have to look at the reasons for the six months and the three years 626 when this became law some 11 years ago. The tendency was to keep young people in borstal for a much longer period. The original sentence of the court was that a person was sent to borstal for a period not exceeding three years but if he came out under three years it was because of the progress he had made and his behaviour. However, in the last few years owing to the increase in crime we have had people awaiting borstal in Wormwood Scrubbs until some of the inmates in borstal institutions are discharged.
This is a ridiculous situation we have got ourselves into. As my noble friend said, the Penal Advisory Council is considering this matter and I think it is much nearer a decision than perhaps can be said at this stage. I would not think it is going to be a long time before something is done in this matter ; I do not think it will be a long time before it publishes a report. If the noble Earl finds something in the report to commend it to him there is nothing to prevent his introducing an amendment to the Criminal Justice Act if this Bill becomes an Act ; so it need not take a long time. I share sincerely the view he expressed, in relation to Section 3 of the Criminal Justice Act of 1961, of the futility and unfairness of dealing with young people in this way—it is either six months or three years. I am aware there has been serious abuses of this and I would say to the noble Lord, with the greatest respect, that I would be prepared to wait a little longer for the report of the Penal Advisory Council, which I am sure I shall find satisfactory as no doubt will the noble Lord.
§ LORD DONALDSON OF KINGSBRIDGE
My noble friend, Lord Wells-Pestell, says he is in agreement with both the previous speakers. I am in agreement in the same sense with all three previous speakers. Although my noble friend came down in favour of the noble Baroness, Lady Wootton, I come down, throwing Party politics aside as we do in this particular debate, on the side of the noble Earl, Lord Mansfield. He chided me for withdrawing my Amendment. I withdrew it only in the knowledge that his stood, and it avoided direct conflict with my dreaded and valued friend the noble Baroness, Lady Wootton, with whom I hate to differ. My views are governed entirely by my main interest in the 627 whole of this Bill, that is, people in prison. The biggest thing which affects the prison population is long sentences ; short sentences have much less effect on the prison population. The noble Earl has made the case, which I had already decided was true, that the result of the present law is that quite a number of offenders are given longer sentences than the courts want them to have. I am in favour of scrapping what we have got and going back to the pre-1967 position.
What we have to consider is whether the noble Baroness has any basis for saying it would be disastrous to do this. I am unable to see it. It seems to me that the law would be perfectly clear. When something new comes out the machinery will work, perhaps faster than the noble Earl thinks, perhaps not. But we shall have saved meanwhile a fair number of unjust sentences and I see no reason not to put right something which is wrong while one is waiting for something better to come along ; it is the old argument of the best being the enemy of the good. My own view is that the noble Earl's Amendment is sound and that we should accept it. I shall vote for it if he brings it to a Division and I shall vote for the Advisory Council's recommendation if I agree with it, as I expect I shall.
§ 8.25 p.m.
§ LORD HACKING
As a practising member of the Bar I should like to give my wholehearted support to the Amendment moved by the noble Earl, Lord Mansfield. I should like to adopt the powerful argument he presented to this Committee. I am a little disappointed in supporting the noble Earl, to find no members of the Judiciary sitting on the Cross-Benches with me, because, as the noble Earl has pointed out, it is members of the Judiciary who have complained more severely about Section 3 of the 1961 Act than practising practitioners, whether members of the Bar or of the other side of the profession.
I support the noble Earl for three reasons. The first is that his Amendment would give discretion to the court. That is one of the admirable themes of this Bill. Secondly, it is simple to apply—and certainly that cannot be said of Section 3 of the Criminal Justice Act 1961, as regards which noble Lords have mentioned periods of six months and three years. 628 However, that is not the end of the story. If one reads Section 3 of the 1961 Act one finds different circumstances in which the courts are empowered to pass sentences of imprisonment. The third reason I support this Amendment is that it does, within the terms of the draft presented by the noble Earl, fully protect young offenders. I do not want to enlarge much on those three points, but I should like to pass one observation upon each part of my argument. May I remind the Committee—and I am a little surprised that little mention has been made of it during the debate—that if a court errs there is a full appellate procedure to put matters right. If the magistrates' court errs there are appellant proceedings to the Crown Court or to the Queen's Bench Division.
I now turn to my second point which is concerned with the simplicity of application of this clause, as opposed to the complexity of Section 3. I would ask your Lordships to spare a thought not only for judges and justices but also for the practitioners. To invoke complicated legislation is to invite mistakes and, as a consequence, to obtain wrong sentences. As for my third point, that the Amendment fully protects the young offender I need to do no more than refer your Lordships to the last three sentences of subsection (1) of the proposed new clause. It reads as follows:… unless the court is of the opinion that a sentence of borstal training would be ineffective in all the circumstances of the case and no other method of dealing with him is appropriate.In my submission, that is quite sufficient protection for the young offender. I have heard with interest the argument presented by the noble Baroness, Lady Wootton, who fears, if I understand her rightly, that if this Amendment were accepted her report would not receive the attention it should. I hope the Government will not be so unworthy. I think the noble Lord, Lord Donaldson, made this point—
§ BARONESS WOOTTON or ABINGER
With all due respect to the noble Lord, that is not what I had in mind. I do not imagine that the Amendment would have any effect upon the reception the Council's report will receive. What I had in mind was that there would be great disturbance throughout the whole of the borstal and 629 prison system if two changes are made within a relatively short period. They are very uncertain as to what they are supposed to be doing.
§ LORD HACKING
I heard the noble Baroness, and if I have misconstrued her argument I apologise to her and to the Committee. I really find myself coming back again to adopt the argument which the noble Earl used when he moved this Amendment. There are wrongs being perpetrated at present. Not only are there wrongs in the sense that sentences are being passed of a lower duration of imprisonment than they should be, but there are occasions—and I would ask your Lordships to recognise this—when young offenders are sentenced to a period of imprisonment substantially longer than they would be given if the court had a discretion. I hope that this is not being too dramatic, but if one young offender is sentenced, because of Section 3 of the Criminal Justice Act 1961, for a longer period than he should be, then the section is unsatisfactory, it is wrong ; and this Amendment, even if it only be an interim Amendment, should receive your Lordships' favour. On that basis I support the noble Earl in moving this Amendment.
§ 8.32 p.m.
VISCOUNT COLVILLE OF CULROSS
I must say that I wish I could join the unanimity on this Amendment, but I fear that if I have to come down on the side of one or the other I must join the noble Baroness, Lady Wootton of Abinger, wholeheartedly on this argument that has gone ahead. I do not think that it comes as a surprise to anyone to know that in certain sources Section 3 of the 1961 Act is unpopular. It was certainly discussed at substantial length in another place, and the remarks of judges and other people concerned have not altogether escaped us.
I am a little sorry that the borstal system has come in for quite so much criticism as it has received. It may not necessarily succeed in all its aims, and there may be a good number of people who come back again to one sort of institution or another. But I do not think that this is due to any lack of effort on the part of the staff who work there. Nor, indeed, is it due to the lack of variety in the type of establishments 630 which have been set up. No longer is it a single form of training, as the Committee will know ; it is tailored for a very large number of different sorts of people with differing qualifications and other characteristics. I am a little sad that the borstal system should have been so roundly condemned this evening, when I know some of the people concerned and know how earnestly they try to make something out of some fairly unpromising material that is delivered over to them. I think we should be doing them an injustice if we did not recognise that.
I should like to correct what the noble Lord, Lord Wells-Pestell, said: I do not think that the waiting at Wormwood Scrubs situation is quite so bad as he made out. We have recently improved things quite a lot. On the whole it is between two and four weeks from the time of the sentence before people go off to the training borstal, and not quite the black picture that he painted. Anything further one can do in this direction is, of course, very welcome.
The noble Baroness explained about the forthcoming report of the Advisory Council. I am bound to say that I can think of few worse times than this to initiate a change. If there were some deep mystery about what the Advisory Council were going to say, I suppose that one might say, "Well, let us take a chance on it". But, as I told my noble friend at Second Reading (and I am not going to read out the whole of this passage now, because I gave him the Second Reading reference in Hansard), we did ask the Chairman of the Advisory Council whether the repeal of Section 3 in this form was likely to fit in with the deliberations of that Council. He wrote back a letter to my honourable friend the Under-Secretary of State at the Home Office saying that it did not. The matter is set out in full in the Hansard Report of the Standing Committee in another place. I gave my noble friend the reference on Second Reading. What on earth is the object of making a change which is almost certain to be in direct conflict with the recommendations of this Council, who I hope will report within months, and find ourselves, as a matter of policy set out in Parliament, in a position where we immediately have to start thinking again? I do not know whether or not the Advisory Council's 631 suggestions will be followed, but if this Bill is anything to go by they have not done too badly in terms of legislation, either in content or in timing, as I said before.
The other point that I think has not been made—and it is one that concerns me very much as the Minister responsible for the present system—is what do I do in practice if this Amendment is passed? This is a point, it seems to me, that no noble Lord has thought about. It is plain from the speeches that have been made that the judges would wish to send more people to prison and fewer to borstal. People sent to prison would in most cases have to be treated as young prisoners. Where do I put them? At the moment there is no accommodation available for young prisoners which would take the sort of numbers that have been indicated in this debate. Therefore existing accommodation would have to be converted.
Am I to convert borstals? If so, it will take 12 months at least before any accommodation will be provided. People would have to be moved out, a good deal of money would have to be spent. On the other hand, I could convert a wing of an adult prison. If I do that, it is going to add to the overcrowding which was the topic of debate before the dinner break, when we were discussing the Bill earlier this afternoon. To take people at present in the borstal system, however undesirable it may be thought that they should be there, and put them in adult prisons means, somehow or other, that one has to find room for the adults at present in that wing. Again it means conversion (perhaps not so much), extra overcrowding while it lasts, and money almost certainly all wasted because by the time we have decided which prisons or borstals to convert the report of the Advisory Council will be upon us. This is not the time to deal with this matter.
I am sorry if noble Lords think that this Government would be so dilatory in its implementation of the Advisory Committee's Report when this comes, but I cannot advise the Committee to accept this Amendment this evening because, quite apart from the objections that have been made all round the House, to do so at this juncture—and this is really 632 the noble Baroness's point—would be a waste of time, a waste of morale, a waste of money, and would achieve nothing at all in terms of a satisfactory solution. I hope that the Committee, however strongly noble Lords may feel about Section 3, will think that from the administrative and policy points of view the adoption of this Amendment would be a great mistake. I hope that my noble friend will not decide to take it to the vote. If he does, I advise the Committee very strongly to vote against it.
§ 8.38 p.m.
§ THE EARL OF MANSFIELD
May I first of all thank those noble Lords and noble Baronesses from all sides of the House who have come to my aid, in the sense that they have given their blessings to what I propose would be a satisfactory alternative to the present thoroughly unsatisfactory position. I detected a certain note in what the noble Baroness, Lady Wootton of Abinger, said, and in what the noble Lord, Lord Wells-Pestell, said of what I might call the "impetuosity of youth". As somebody who has had a 15-year-old son in the Chamber for much of this afternoon, I was very flattered indeed. Having said that, I am bound to say that I am now going to deliver a brickbat. It is going to be a short one. It is perfectly true that in the Second Reading my noble friend directed me to a column in a very thick OFFICIAL REPORT of Standing Committee G. The Chairman of that Committee, in that letter which the two of them swapped, was gracious enough to say that his Committee might be reporting in about 12 to 18 months' time, and he would not like to see Section 3 disturbed in the meantime. I am completely inexperienced in the ways of your Lordships' House, but I venture to suggest that that is hardly a satisfactory way of conducting business in Committee in this place. If this House is to be muddled by whatever has gone on—
VISCOUNT COLVILLE OF CULROSS
I am sorry, but I really cannot allow the noble Earl to get away with that. Our proposals are not in final form, but I can say with the authority of the Council that we shall not recommend a return to the pre-1961 system of alternative medium-term custodial sentences of 633 borstal training and imprisonment, which is what a simple repeal of Section 3 of the 1961 Act would produce. That is what the Chairman of the Council said.
§ THE EARL OF MANSFIELD
With respect to my noble friend, that is precisely why I worded my Amendment and drew it as I did. Nobody wants to go back to pre-1961 and nobody wants to go back at all. I should like to advance. May I deal, first of all, with the point which the noble Baroness, Lady Wootton of Abinger, made, that any move now might be disastrous. I do not know, and I do not suppose many of your Lordships know, what is likely to be the outcome of this Report. But it is fair to say that it is unlikely to suggest other than that offenders between the ages of 17 and 21 years will continue with borstal treatment, or be sentenced to terms of imprisonment, or be sentenced to a mixture of the two. Therefore, all that my Amendment does is to give a court discretion.
On the point of the noble Baroness, Lady Wootton, that judges might consider that sentences of borstal training were more likely to be ineffective, my reply is that if a court pays attention to subsection (1) of my new clause it must be considered that in all the circumstances of the case borstal training would be ineffective and that no other method of dealing with an offender would be appropriate, before a prison sentence could be passed. If that is disastrous, then I am speechless.
§ BARONESS WOOTTON OF ABINGER
The noble Earl is fully entitled to speculate as to the probable content of the Advisory Council's Report, but it is also possible that he is quite wrong.
§ THE EARL OF MANSFIELD
I am trying only to peer through a glass darkly. The noble Baroness is much nearer to the other side of the pane than I am. The other matter which was taken up was the criticism of officers in borstal institutions. I have never sought to criticise the borstal institutions or the persons within them. What I criticise is the present lack of logic, the injustice which is written in the face of Section—
§ BARONESS WOOTTON OF ABINGER
I must apologise for interrupting again, 634 but nothing that I said should be interpreted as criticism of the staffs of borstal institutions with whom I have the deepest sympathy. What I tried to convey was that, owing to the present situation and all the uncertainties, they are very often in a state of doubt as to what they are supposed to be doing, and this is not good for morale. I think the noble Viscount mentioned morale. I hope he will greatly emphasise that as one of the reasons why changes ought to be made, and ought to be made at a reasonably early date, and then not be re-made quite soon afterwards.
§ THE EARL OF MANSFIELD
I appreciate very much what the noble Baroness has said. My point is that I should not like it to be thought that I was criticising either the prison officers, or the borstal institutions as they are. I have thought very deeply as to whether I should withdraw this new clause and, on balance, I have come to the conclusion that I should not—not because I am happy with the situation as it will be, but because there is always an excuse for doing nothing. My noble friend said that he would be in difficulties with the prison system if this Amendment were passed, but that was equating criminal justice with a cash register. In a previous speech this afternoon, he said that it is up to the prison service to do what it has to do according to the laws which are passed—
VISCOUNT COLVILLE OF CULROSS
I did, on the basis that they were permanent. What I object to is having to do something in about a year or so, all of which is to be reversed with a good deal of public money wasted in the process.
§ THE EARL OF MANSFIELD
I have not been interrupted so much since I was last in the Court of Appeal. I should like to see noble Lords, from whatever section of your Lordships' House they come, join with me in expressing their distaste of the status quo. It is never a good time to do anything, but come and join me in the Lobby now and say that it is a good time to pass my Amendment.
§ LORD GARDINER
What I like, and what cheers me up, is that we have now really got away from any Party political division. I have listened to all this discussion and there have been no Party 635 politics in it at all. I can hardly remember any occasion in British public life when I have ever disagreed with my noble friend Lady Wootton of Abinger. I think that on this occasion I do, and that I shall vote with the noble Earl, Lord Mansfield. But it is the right spirit that we should get away from all of this Party
§ Clause 14 [Community service orders in respect of convicted persons]:
§ 8.54 p.m.
LORD GARDINER moved Amendment No. 13:
Page 11, line 36, leave out ("less than forty nor more than two hundred and forty") and insert ("more than one hundred and twenty").
§ The noble and learned Lord said: We are here in the field of community service orders, and the effect of the Amendment is to omit the minimum number of hours provided in the Bill for community service work—namely, 40 hours—and to omit the maximum provided in the Bill of 240 hours, and to substitute no minimum and a maximum of 120 hours. The concept of community service orders is a promising and, I think, an exciting one, because it does not remove the offender from the community but includes him in the community and in working for it. It can win the voluntary co-operation of 636 political stuff, and all say what we think is right.
§ 8.46 p.m.
§ On Question, Whether the said Amendment (No. 12) shall be agreed to?
§ Their Lordships divided: Contents, 24 ; Not-Contents, 40.635
|Ailwyn, L.||Gainford, L.||Milner of Leeds, L.|
|Bacon, Bs.||Gardiner, L.||Morris of Kenwood, L.|
|Beswick, L.||Hacking, L. [Teller.]||Phillips, Bs.|
|Blyton, L.||Hoy, L.||Ruthven of Freeland, Ly.|
|Davidson, V.||Jacqucs, L.||Shackleton, L.|
|Donaldson of Kingsbridge, L.||Janner, L.||Stow Hill, L.|
|Elliot of Harwood, Bs.||Maelor, L.||Taylor of Mansfield, L.|
|Evans of Hungershall, L.||Mansfield, E. [Teller.]||Watkins, L.|
|Ardwick, L.||Eccles, V.||Northchurch, Bs.|
|Auckland, L.||Elles, Bs.||Rankeillour, L.|
|Belstead, L.||Ferrers, E.||Sandford, L.|
|Birk, Bs.||Gowrie, E.||Segal, L.|
|Brabazon of Tara, L.||Greenwood of Rossendale, L.||Slater, L.|
|Brooke of Cumnor, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Stocks, Bs.|
|Brooke of Ystradfellte, Bs.||Swaythling, L.|
|Champion, L.||Hanworth, V.||Wade, L.|
|Colville of Culross, V.||Jellicoe, E. (L. Privy Seal.)||Wakefield of Kendal, L.|
|Craigavon, V.||Llewelyn-Davies of Hastoe, Bs.||Wells-Pestell, L.|
|Delacourt-Smith, L.||Lothian, M.||Windlesham, L.|
|Denham, L. [Teller.]||Macleod of Borve, Bs.||Wootton of Abinger, Bs.|
|Digby, L.||Mowbray and Stourton, L. [Teller.]||Wynne-Jones, L.|
|Dundee, E.||Young, Bs.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ such people in the rules of society, rather than their sullen acceptance for fear of the consequences.
I think we are all greatly indebted to my noble friend Lady Wootton of Abinger and her Committee for this imaginative alternative to prison sentences. But it would be a pity to spoil the effect by making the community service work go on for too long. A minimum of 40 hours would make it more difficult to find suitable tasks, and any minimum would fetter the discretion of the courts. One thing I am very puzzled about is this. We have had this distinguished Advisory Committee, comprised of men and women of great distinction and great experience in this field, who have proposed this system of community service work. They considered very carefully whether there ought to be a minimum and/or a maximum number of hours for this work, and in paragraph 57 of their Report they said:
The order of the court would need to specify the total period of service to be performed, within a maximum to be prescribed
by legislation. We suggest that this overall maximum might be of the order of 120 hours. We think it preferable not to specify in legislation any maximum number of hours of work to be performed on any one occasion, so that there would be complete freedom to fit in with arrangements for volunteers. It would clearly be undesirable for a very long period to elapse before the service was completed: one suggestion made to us was that the order might provide for a maximum period of six months during which the community service should he completed, within a probation order of two years' duration. We think, however, that, since there might be changes both in the offender's circumstances and in the programme of work which would hamper the implementation of the order, it might be preferable to leave the supervising probation officer to decide within what overall period the order should be carried out",
and so on. So they very seriously considered this question of what should be the minimum period of the community service work and what should be the maximum. They came to the conclusion that there should be no minimum and that the maximum should be 120 hours.
§ How does it come about, then, that in the Bill we have a complete departure from this suggestion? We have a rigid minimum of 40 hours and a maximum, not of 120 but of 240 hours. I have naturally read all the proceedings in another place to find out how this has come about. The answer, as I understand it, is that a little clique of officials in the Home Office came to the conclusion that the Advisory Council were wrong in recommending that there should be no minimum period ; so the little clique of officials put "40 hours" in the Bill as the minimum. They came to the conclusion that the Advisory Council were wrong in recommending that the maximum should be 120 hours ; so they put in "240 hours".
§ I have the highest regard for the officials of the Home Office but the difficulty, I feel, is this. An Advisory Council give their reasons for the conclusions to which they have come—and they have given their reasons in this Report. But the little clique of officials at the Home Office give no reasons at all ; and from what has been said in another place I have been unable to ascertain what is the ground on which the officials have overruled the Advisory Council on both these points. I confess that I think the Advisory Council are right and that the clique of Home Office officials are wrong. Two hundred and forty hours spread over a year could lead to disillusion, boredom and an un 638 necessarily high rate of breaches of the order. There is nothing to stop community service work from going on longer voluntarily and there is nothing to stop the Secretary of State from later increasing the maximum. There is power, which I quite approve of, in the Bill to enable the Secretary of State by order to vary the figures.
§ So the question is this. Do we start by assuming that the Advisory Council were wrong ; do something entirely different and then say that if experience shows that the Advisory Council were wrong then the Secretary of State can alter the figures ; or do we say, "Let us start by assuming the Advisory Council were right and if experience shows that they were wrong, then the Secretary of State could alter the figures"? I must say that I think that we should start with the proposition that this very experienced Advisory Council are right and that if it is found from experience that they were wrong then we should alter the figures ; rather than that we should start with the proposition that the clique of Home Office officials (who give no reason for their views) are right and then, if we find that they are wrong, the Secretary of State should alter the figures.
§ Let us take the example of a seaside town. A number of young hooligans come down from London or from somewhere else to this seaside town and make an infernal nuisance of themselves. What could be more sensible or more just than, if they agree, that they should be told, "Instead of your being sent to prison or fined, we are going to ask you to help us with community work for this town. We have just had an oil slick outside and this oil slick is making a confounded mess of the beach. Come along! Will you agree to help the citizens of this town (in which, you must admit, you made a bit of a nuisance of yourselves) by clearing away the effects of the oil slick from the beach?" Does it make sense to say that because on the evidence it would only take 30 hours of work to clear this oil slick from the beach, the magistrates should be quite unable to make an order of community service work because it is less than this minimum period of 40 hours which the clique of Home Office officials thought up? This is silly, is it not? Why fetter the discretion of the court?639
§ I would ask the Committee to say that this is not sensible and that we should accept the advice of the Advisory Council and that there should be no minimum. Why should there be a minimum? This must depend upon the circumstances of the case, and the circumstances of such community work as may be available. If 30 hours is all that is available, why not order that? Why have a rigid minimum? So far as the maximum period is concerned, we know that whether you are clearing a canal or doing any other kind of community work, the time comes when the drop-out rate very much increases because people get bored. Therefore, would it not be much better to accept the advice of the Advisory Council and have no minimum, and to have a maximum of 120 hours—so that in the Bill there is a very wise provision enabling the Secretary of State, if he finds in the result that this does not work out, to alter it rather than to start by rejecting the views of the Advisory Council and accepting the views of this Home Office clique who give no reasons for rejecting the views of the Advisory Council? For these reasons I would hope that the Committee will accept this Amendment. I beg to move.
§ LORD DONALDSON OF KINGSBRIDGE
I should like briefly, and a little less abrasively, to come to the support of my noble and learned friend. I doubt whether the Home Office officials are responsible. In so far as there is any blame, then I lay it squarely on the shoulders of the Minister. But I do not think this is so much a question of blame as of anybody's judgment as to the best way of doing something quite new. It is worth pausing to see how new this is. Imprisonment, over the last 30 or 40 years, has replaced that kind of punishment—the stocks and the whipping post—which went on before for more than a hundred years. Imprisonment is now the only sanction we have. This Bill, in the most imaginative way, is trying to introduce the concept that the deprivement of leisure is a punishment as well as the deprivement of liberty. It is most important, if we are to keep people out of prison—as we have ad nauseam expressed ourselves as being in favour of doing—that the public 640 should accept the alternative sanction as being a genuine sanction.
My noble and learned friend argued about the minimum in a way in which I thought one could not answer him. It seems to me perfectly clear that there is no particular virtue in a minimum, and the case which he gave of the oil slick is a good one. Equally, there may be a rich young man who commits a terrible driving crime, or something of that kind, and it is considered that imprisonment is not necessary. If he knows that he has tickets for Wimbledon, one Saturday would have a great effect. One has to realise that 40 hours—eight Saturdays at five hours a day—is quite a long period. Again, 240 hours, which is really a year of Saturdays—48 Saturdays if my arithmetic is right—is probably long enough to interfere seriously with this method as an effective sanction, because you have to obtain consent and I doubt whether many young men would accept or stand up to that length of time. Either they would not accept the offer and would go to prison or they would fall down on it after a certain time and then go to prison. So there is a strong case for sticking to Lady Wootton's figures.
It is worth remembering that the community service order can be used in lieu of a fine, as we see from Clause 40, and also that a fine may be used in lieu of a community service order. There is a curious circular effect by which failure in respect of either produces the other. It is important that the initial experiment should be as moderate as possible, and I think that 240 hours is rather an immoderate figure. I should prefer to see 120 hours as the maximum, but it is a question of anyone's judgment ; and so long as we are all trying to do the same thing I shall not feel bitter if the noble Viscount does not agree with me. But I am inclined to think that my noble and learned friend and I are right and I am happy to support my noble and learned friend.
§ BARONESS BIRK
I wish to support the Amendment for the reasons which have been given by my noble friends. It is much easier when experimenting to increase something rather than to reduce it. I agree with what was said by my noble friend Lord Donaldson of Kings-bridge, that what to us may appear to be 641 a comparatively brief amount of time may appear to he almost a lifetime to a young person. We bear this in mind in the courts when deciding on a period of disqualification from driving, because one realises that what may appear at first sight to be a short period may be a very long period in the opinion of a young person. So far I can see no reason that would lead one to feel that the advice of the Advisory Council should be changed. I hope that the Government will accept this Amendment, which would provide a much more flexible introduction. Also, there would be fewer breaches and a much greater impact would be made on young people.
§ LADY RUTHVEN OF FREELAND
I wish to support what has been said by the noble Baroness, Lady Birk. I work with volunteers and I know that you would not be able to pin them down to 240 hours, or even 120. You have to take them when you can get them, and you are lucky if you can get them.
VISCOUNT COLVILLE OF CULROSS
I am sorry that the noble and learned Lord, Lord Gardiner, should have taken the occasion to pick upon an alleged clique of Home Office officials. In my respectful submission to the Committee, it is quite unjust that the noble and learned Lord should say such a thing. The noble Lord, Lord Donaldson of Kingsbridge, was perfectly right ; if anybody should take the responsibility for this provision it is I, and in another place my right honourable friend. I do not think it does a service to anybody to suggest that it is something concocted by a clique of Home Office officials and to go on referring to them. I would much rather take the responsibility for this myself, and if I can succeed in explaining the matter to the noble and learned Lord I may have made some progress, but perhaps I shall not.
The noble Lord, Lord Donaldson of Kingsbridge, said that this is a matter of judgment, and so it is. Here we have a totally new "animal" in the form of non-custodial treatment. Though one respects the work put into this subject by the Committee, I do not suppose that even the noble Baroness, Lady Wootton of Abinger, would say that all their exercises of judgment were necessarily infallible. The noble Baroness is too modest, 642 and not the sort of person who would make that claim. One ought to bear in mind that this is meant to be a genuine alternative to imprisonment, something quite different but something which is acceptable as an alternative to a sentence which would deprive someone of his liberty—the noble Lord, Lord Donaldson of Kingsbridge, rightly says not his liberty, but his free time. For that reason the Government consider that one cannot have a minimum which is simply derisive. That is why a minimum has been inserted in this Bill, because if the scheme is to gain any credence, I do not believe we can leave an unspecified lower end of the range which the courts might use.
The oil slick may be a very good point in theory, but unfortunately it is not likely that the scheme will work in that way. The court, when sentencing somebody to a certain number of hours of community service, in lieu of what might otherwise have had to be a prison sentence, will not know what jobs the person will be called on to do. There is no oil slick in front of the court as there is on the beach. The court simply sentences the person to the system run by the Probation Service which happens to be operating in the area—that is, of course, when the areas are all covered and the courts can do this. So they will not have in mind that there is some particularly apposite remedy for that person. Indeed, I read the Advisory Committee's Report to suggest that one was not attempting in this form of treatment to fit the punishment too closely to the crime, but rather the contrary. I felt that the whole concept of this was not to rub the offender's nose on the beach where he had offended, but to have a much more broadly based system whereby he might do something that might have had nothing whatever to do with his offence, but nevertheless would be most useful for the community and, one would hope, useful to him as well.
If that is not going to be seen by the public as being the "soft option" of all time, then it is the view of the Government—and I grant that it is a matter of judgment—that there must be a minimum period. That minimum period has been set at 40 hours, which, assuming an eight-hour Saturday, means five Saturdays ; or, if it is a five-hour Saturday, eight Saturdays. The maximum period is about 643 a year, if it is worked on the half-day ; it is seven months on the basis of service all day on Saturdays.
The noble and learned Lord, Lord Gardiner, asked, "Why do we not start from the recommendation of the Wootton Committee?" I can give no better reason than that we consider it to be inadequate. There is no particular reason why we consider it to be inadequate. There is no particular reason why we should pick on 240 hours as being adequate, save for the acceptability of this matter in the eyes of the public. If this is going to be a genuine, accepted alternative, we believe that the public who hear these sentences given out by the courts must feel that there is a really worthwhile effort being put into it by the offender ; that he is going to do something which will purge him, as it were, of the liability of going to prison—because this is obviously what he might have done instead. Then one has in mind, as with all maxima, that the courts are in no way bound to impose 240 hours: they can impose anything between the minimum and the maximum. If in any particular case the court thinks it is far too much, then it will not impose anything like so many hours ; and one would perhaps expect it not to, except in a very bad case, or in a case where there is some particular reason why the court thinks that a long period of this work would be suitable for the offender.
The noble and learned Lord reminded us of the powers to reduce. There is also the power in Clause 17(2) whereby the order can be revoked on the application of the offender himself or of the probation officer who is supervising the scheme. And if the whole thing has gone wrong, and the period appears much too long, then it may well be in the interests of justice, as the subsection says, that the order should be reduced. There are a certain amount of checks and balances on this provision.
Perhaps I might finally say to the noble and learned Lord, in regard to exercising judgment, that I think I have heard before something which echoes strongly of the speech that he made. He may remember that at the time when we were discussing the Theft Bill in 1967, throughout the Committee stage and on Second Reading he said: "We have had this Committee sitting for seven years. There 644 are 13 of the most experienced criminal lawyers on it, and they recommend this and that. It has been drafted by the best Parliamentary draftsmen that we have. We do not think it can be wrong." Then on the Report stage he put down 35 Amendments.
§ BARONESS WOOTTON OF ABINGER
I should feel much happier about the noble Viscount's answer if he could assure us that the Government are at least considering working some of this community service in with residential weekend centres, such as have been established in New Zealand.
VISCOUNT COLVILLE OF CULROSS
I am in a certain amount of difficulty in explaining how this community service will work out. I do not think there are any bars on the way it can be done. As I told the House on Second Reading, we have five experimental areas. We are beginning to discuss with the Probation and After-care Services and voluntary bodies in those areas as I mentioned earlier on this afternoon, how best this can be done. It may be that in some places a residential scheme would be a good thing. If that is so, then the 240 hours or the 40 hours could be compressed into a much shorter period, if that was felt to be a good way of doing it. But I do not think I should be truly doing a service to those who try to work this scheme if I made a pronouncement which might bind its form. It is an experiment. It is a pretty skilled job, as the noble Baroness will realise, having discussed it at the length she did, to work out precisely how this might be done. But I would not rule out a residential course at all and I hope that will add point to the calculations about the length of service.
§ LORD DONALDSON OF KINGSBRIDGE
This frightens me a little ; this is a very delicate matter between punitive and rehabilitative. We know that local prisons are punitive rather than rehabilitative: this is pretty well a general view. What about these community service orders? The Minister in another place, Mr. Carlisle, did stress the punitive side in the Committee discussion and I was hoping to get the other side discussed here. I think it is not enough to deal only with the punitive side: you lose public acceptance. I accept this, but 645 I think magistrates, if they are not going to send to prison somebody who they think ought to go—and that is the only condition under which they can use this—will tend to go towards the maximum. It is very dangerous to have a maximum which will almost inevitably lead to many breaches. I believe this is an indiscreet maximum. It is not a wrongheaded one but I think it is liable to lead to a lot of trouble. I am rather frightened about it in case we lose the good that is in this scheme.
VISCOUNT COLVILLE OF CULROSS
I am very grateful to the noble Lord and I should like to think about what he has said. I should not like to be committed at the moment to the punitive, as opposed to the curative, methods of treatment and I should like to see what he has had to say considered by those setting up the schemes.
§ LORD GARDINER
I am very glad to hear that the noble Viscount is prepared to think about this. I am entirely unrepentant about the theft law for the reason that I would never have proposed any Amendment of that Bill had it not been for the fact that the noble and learned Viscount, Lord Dilhorne, proposed every sort of amendment differing from the recommendations of the Committee. The Amendments that I proposed were merely to try to meet him on the point which he raised. I hesitate to say this, because although he was here earlier he is not here now, but nearly all the difficulties which have since arisen on the Theft Act, so far as I can make out—and the House rightly or wrongly accepted the views of the noble and learned Viscount when making alterations in the proposals which this Committee had been considering for a very long time—have arisen from the alterations which were made.
I remain unrepentantly of the view that where you have a committee, and particularly a committee of ordinary people, and, I suppose, still more so if there are experts on it, one ought to consider that what they recommend is probably good sense. My experience of public committees of this kind is that they are extremely conscientious and extremely good ; and they usually come up with 646 the right solutions. If I have referred disrespectfully (which I have no intention of doing) to the Home Office "clique", this is simply because here is this Advisory Council of considerable distinction and acknowledged experience which comes up with this proposal for community service orders, and the Government say, "Yes, that is a very good plan: we entirely accept that". When it comes to the Bill you find that in relation to the number of hours for which these orders are to work, there is a complete departure. Naturally one asks: "What is the reason for this?" Having carefully read the proceedings in the other place, I think the only reason for it, so far as I can understand, is that a body of officials in the Home Office, for which the Minister must take responsibility, have differed from the Advisory Council.
One of my difficulties is that the Advisory Councils in their reports give reasons ; Home Office officials do not give any reasons. Until the noble Viscount had spoken I found it very difficult to understand why the Bill says that the Advisory Council are absolutely wrong in not providing a minimum number of hours. They say, "We must have a minimum number of hours". If it is found that there is some good local community work that they might do, but that it is only going to take 35 hours, the officials say, "It cannot be allowed". That is what is in the Bill. But, why?
Similarly, when it comes to the maximum, I thought the Advisory Council gave very good reasons why 120 hours was a reasonable maximum. If you increase the number of hours you will find the drop out rate will be higher, people will lose interest, they will get bored, and so on. We never had any good reasons, because officials do not give reasons, why the Advisory Council were wrong in saying that it would be a mistake to make the maximum number of hours more than 120. I am delighted to hear that the noble Viscount is prepared to reconsider what has been said. It is obviously useless at this hour to try to carry this Amendment to a conclusion by a Division. We shall have to reconsider this matter at the Report stage of the Bill.
§ Amendment, by leave, withdrawn.647
§ 9.27 p.m.
BARONESS WOOTTON OF ABINGER moved Amendment No. 15:
Page 13, line 4, at end insert—
(" (9) On making a community service order the court shall in ordinary language explain to the offender—
The noble Baroness said: This Amendment can be dealt with fairly shortly. In a number of cases where new provisions are introduced it seems desirable that they should be explained in ordinary language to the persons concerned. Amendment No. 15 deals with community service. It proposes that, in ordinary language, the following should be explained to a person who is subject to a community service order:
the purpose and effect of the order (and in particular requirements as specified in section 15 of this Act) …
Those requirements are that he should report to the relevant officer and notify him from time to time of any change of address, and that he should perform for a number of hours specified in the order such work at such time as he may be instructed to do.
§ Necessarily this is rather vague, because the court cannot know whether the young man will be instructed to go and dig somebody's garden or help bath a paraplegic. They will not be able to tell him what kind of work he has to do—that comes at a later stage. He has to report to an officer who will set him his task and give him instructions. Secondly, he is to be told of the consequences which may follow if he does not do what he is told, which in effect means that he may be brought back to court and dealt with in any way that he could have been dealt with for the original offence. Thirdly, the offender is to be told that the court has power under Clause 17 of the Bill to review the order, to let him off on either his or the probation officer's application.648
§ With the consent and approval of my noble friend Lord Wells-Pestell, may I also deal with Amendment No. 16? This also requires attendance at a day attendance centre, which is another innovation which should be explained in ordinary language. It is not necessary to spell out in detail all these consequences in relation to the day attendance centre because the day attendance centre requirement is the condition of a probation order and these consequences are implicit in the probation order. That explains the difference between Amendments Nos. 15 and 16. The whole point, therefore, of both these Amendments is to explain in ordinary language so far as we can what the offender is to expect. I beg to move.
§ LORD WELLS-PESTELL
I commend these Amendments to the noble Viscount. I will be very brief. A number of probation orders are made these days without conditions being explained. They cause concern to probation officers who are responsible for the supervision and in order to overcome that and difficulties with other orders which are being made I would commend these Amendments to the Committee.
VISCOUNT COLVILLE OF CULROSS
On Amendment No. 15 I entirely agree with everything said and I recommend the Committee to accept the Amendment. Amendment 16—if I may deal with it at the same time—I do not think is necessary. The whole matter will be dealt with in the context of the probation order itself, and therefore the statutory requirements to explain the probation order will include a statutory requirement to explain the day training centre. Therefore Amendment No. 16 is not necessary: it is already covered by Statute Law.
§ BARONESS WOOTTON OF ABINGER
Amendment No. 16 has not been formally moved. Perhaps I had better not move it, if that has the consent of my noble friend Lord Wells-Pestell.
§ On Question, Amendment agreed to.
§ Clause 14, as amended, agreed to.649
§ Clause 15, as amended, agreed to.
§ Clause 19 [Probation orders requiring attendance at day training centre]:
§ 9.32 p.m.
LORD DONALDSON OF KINGSBRIDGE moved Amendment No. 17:
Page 18, line 9, at end insert—
(" (9) If the person in charge of the day training centre considers that the offender would benefit by further attendance at the day training centre, the offender shall be permitted to continue to attend up to a maximum of one hundred and twenty days and to receive payments towards the cost of maintenance of himself and his dependants as provided in section 45.")
§ The noble Lord said: This is a very interesting clause in that it is the first clause in the second Part which does not come directly out of my noble friend Lady Wootton's Report. I should like to claim a kind of indirect parentage of it. In your Lordships' House in December two years ago I drew attention to a paper which had been read to the Howard League by Philip Priestley, who is one of our employees at NACRO, suggesting exactly this. He proposed that community training centres should be set up using cheap housing in dense urban areas which offenders who would normally he given short prison sentences might be required to attend as a condition of a probation order, and so on.
§ The point of this Amendment is twofold. First of all, we want to discuss in a probing sense the right period for this supposed treatment ; and secondly, we want to find out from the Government a little of what they have in mind over the day training centres because, apart from the Home Office circular, which is fairly comprehensive, they have so far given us very little information. We want to make sure that these training centres are used for rehabilitation rather than punishment. We have no suggestion from the Minister in another place that he is thinking more of punishment than rehabilitation in these cases—rather the other way round. The extension from sixty to 120 days which the Amendment suggests will of course not be desirable in all cases, or even in most cases. But we put it forward having in mind the kind of man who has drifted from job to job and from prison to hospital and back to prison again, who is given this 650 order and whom it fits. He is presumably a man who finds it very hard to obtain employment, but suddenly he makes a relationship with one of the employees of the attendance centre and begins to do very well. He begins to do very well from a very low base, so it may easily take him some time.
§ What the Amendment is asking for is that if the warden or director of the centre (or whatever he is called) and the probationer, who has of course already consented to his probation, ask for further time to continue this treatment, not only can they get it without going to the court, but under Clause 45 the probationer's expenses may be paid as laid down in the Bill. This is important. Government acceptance of this Amendment—if they do accept it—would show that they regard this as a serious attempt to do something for people who need to have something done for them.
§ If one may take this opportunity to look around a little at the day training centres I think one must confess that they will stand or fall by how they are run, yet nobody has the slightest idea how they are going to be run. We have some ideas of what ought to be done. Clearly illiteracy is one thing that must be dealt with. Many offenders of this type are nearly illiterate and I suppose some training in writing letters, interviewing for a job, and so on, will be included, but it is difficult to do. I think it has to be done almost individually. The set-un for the centres now is three probation officers, each dealing with fifteen men—five before, five in situ and five after ; in other words, each probation officer will have a load of fifteen men: he will have five waiting to go in, five in the centre whom he is looking after and five to whom he is giving after-care. The first thing one notices is that they will be the only probation officers in the British Isles with a load of one-third of normal. This is a remarkable step forward ; we praise it and are strongly in favour of it. In my opinion this kind of person can only be dealt with by something approaching a one to one relationship. This will be a five to one relationship, and in my opinion there will be a great deal of room for volunteers as well.
§ It is interesting that Giles Brandreth in his book Created in Captivity, tells us 651 that at the T.V. station which is run for and by the inmates at Michigan State Prison, the most popular courses, written and presented entirely by prisoners, are on letter writing and on how to fill in the tax form. Whether the latter will be quite so prominent here I do not know ; I think probably not. I think one must realise that this is a difficult and highly skilled operation and we want an assurance that the money will not be stinted. We were told during the discussions on the Bill in another place that everything in the experimental period will be paid for by the Home Office ; in other words, the local authority will not have to make a contribution. There is no limit imposed and I think it will be very expensive. In my view they must have good typewriters, plenty of pencils, ink which is not full of blotting paper. It must not be like an old-fashioned post office, but well run with clean tables ; and the whole thing must be "slap up" if it is going to do any good.
§ I think it is worth looking at the "profile"—which is the modern word for what people look like—of the type of person we are hoping to deal with. I suppose one could say that this man will have a bad work record, poor health ; he will probably come from a broken family, or if he had ever formed a marriage relationship he will certainly have lost it. He will be grossly incompetent at managing his own affairs, and will often be inarticulate, particularly with middle-class officials. I expect some of your Lordships have read some of Mr. Bernstein's works on articulacy and the difference in vocabulary between ill-educated working class and the highly educated middle class ; the gap is almost total. A great deal of the total case, which is to do good for this class of offender, comes from lack of communications. Once again, this gap can only be bridged by very skilled teachers and a large number of volunteers.
§ There are three ways in which persons of this type can be "attacked", if one can use that word in this context. First, one must consider their position in the world, and as a rule it is dreadful. Most of these men are bachelors. Those who are not bachelors need help from the marriage guidance people, and in this respect those centres can be of help to 652 them. When we refer to bachelors we normally have in mind rather agreeable people—the sort of men one might see in St. James's Street. It is perfectly good to be a bachelor, but in the sector of society we are discussing the word relates to a common lodger, a dosser or a vagrant. There is no social background on which such people can lean. The task of the day training centre is somehow to provide that background, and I am not saying how it can be done because I do not know. I only know that some of the voluntary hostels have succeeded in achieving a great deal.
§ The second aspect is that of work. People at this level of failure require interest and status rather than money. Of course they like plenty of money for the jobs they do, but above all they want to feel respected ; they want to do jobs which make them forget some of the humiliation they have earned and suffered. This means that one must look at the sort of skills that can be taught to them and the jobs that they can fill once they have learnt such simple skills. When driving towards the South Coast towns one comes across many men thumbing a lift to, say, Bournemouth. When one asks them, "What are you going to do once you get there?" one is often given the reply, "We're going into the summer catering trade, guvnor" Many of them go into the catering trade for the summer and spend the winter on building sites.
§ We must try to get them to aim a little higher than that. Not that there is anything wrong with building sites or the summer catering trade ; indeed, holteliers often point out that the pilfering from which they suffer is highly organised and is not necessarily caused by the people we are considering to-night ; and that is remarkable. The sort of work they can do is quite varied and includes such jobs as hospital porters, working a little way up the ladder from there. The new careers plan in America has placed over a million offenders in lower grade (if I may used that phrase) social work jobs. This is something that we in Bristol are considering, and I understand that the Home Office intends to help us start something there. These are early days, but it could have a great future.
§ The first aspect, therefore, is personality and the situation in society, while the 653 second is work. The third is transient skills. These people have terrible deficiencies. Many of them cannot read, talk properly, spell or add up. They are in many instances frightened of those who give them money and other forms of help. A great deal can be done about this problem, but those who do it must be highly skilled and specialised and be prepared for unrewarding work. If the Government are serious in trying to make these day training centres work they will have to spend a lot of money on them ; but, having done so, they will have secured something that will be cheap at the price, because these men are the most expensive offenders we have. Home Office circulars on this subject leave many of these points open. A great effort will have to be made if success is to be achieved, and the Amendment would help in that it would meet the wish of those men who desire, on their warden's recommendation, to serve a longer period and be paid for so doing. I beg to move.
§ LORD GARDINER
I rise very shortly to support my noble friend's Amendment. Most of us are in favour of this imaginative conception of day training centres as an alternative to imprisonment. The short point of this Amendment is whether we are wise in limiting the number of hours. I must say that a number of my noble friends are very sceptical about day training centres although they are in favour of them. I rather think that my noble friend the Baroness Wootton is, though it was her conception. The reason why they are sceptical about it although it is their conception is because the Home Office do not seem to have applied their minds to the question of what is going to happen in these day training centres. One of the governing questions obviously is finance. If you are going to look on this as the alternative to prison then it is £24 per man per week ; if it is the alternative to probation then it is about £1 a week. You cannot really run an effective day training centre unless you are going to provide the money which, if it prevents their going to prison, the State can well afford. They do not seem to have thought out what they are going to do.
The only point of this Amendment is not to limit the number of hours. It seems so silly to fetter the discretion of 654 the justices and everybody in this way. If the real trouble with this young man is that he has left school without being able to read—and this applies to some older people too who conceded for years that they simply cannot read—then this is what he really needs. Does it make sense that, because when he comes to the end of a particular number of hours and he has not quite got there but he will if you give him a few more hours, you must refuse him any more because of the limits imposed by the Bill? The sole point of this Amendment is to provide that there should not be this absolute limit on the number of hours. If the man is doing well and is reported on well—"Yes, he has worked hard on this and is getting on well but does need a few more hours "—he should be able to go on. That is the only point of this Amendment and I should have thought with respect that this is right.
§ 9.47 p.m.
VISCOUNT COLVILLE OF CULROSS
It is perfectly right but it is already in the Bill. Under subsection (5), heavily disguised by one of these revolting pieces of cross-referencing, there is power in the court upon the application either by the probation officer or the offender, with the offender's consent, to alter the probation order so that he can further attend the centre, and he will go on getting the money under Clause 45. There is no difficulty about that at all. It is perfectly adequately covered in the Bill. The only requirement will be an application by one or other of those concerned, and it is probable that it will be by the probation officer, who is the one who can judge whether the man could profit by a further period. I hope that is satisfactory. I am advised that there is absolutely no problem about it at all.
Assuming that is so, may I just say a word to both noble Lords, and particularly to the noble Lord, Lord Donaldson, about the content of the courses in the training centres. It is plain from the speech that he made that the noble Lord is drawing heavily upon the experience—and I am glad he did—of the discussions that are already taking place, probably in connection with the Bristol scheme. I do not think that we have committed ourselves to it at the moment but I know that it is a matter that is going forward. The noble Lord says that we soon will. 655 I hope that perhaps will be right. The noble Lord has given a pretty good picture of the sort of person who is likely to be helped by one of these day training centres. If I may be forgiven at this hour of the night, having been going since half past two, I will not go through all this criteria again, but I could perhaps just emphasise some of the things we might be able to do. I appreciate that it is expensive and this will be done, by comparison with the rest of the service, on a very small ratio of probationers to probation officers—about a third or less of the usual workload—so there will be pretty intensive supervision and help.
I would also emphasise that, like so much of the rest of this, what we have at the moment is, as it were, suggestions for what might be done at day attendance centres rather than any fixed views about whether the scheme is right or not. It is experimental and it would be a mistake at this stage to adopt an inflexible attitude. I agree about reading and writing. We have a certain amount of experience in detention centres and short prison sentences which shows that something can be done in two months. There is a good deal in what the noble Lord said about filling in forms and generally finding one's way about officialdom and language, and all the paraphernalia of modern life. Every person must have a course tailored for him or her ; it is no use providing a general course with this sort of arrangement: it must be tailored for the particular person.
Health is a problem ; and that includes alcoholism, with the possibility of suggesting somebody to Alcoholics Anonymous or some other sort of cure. There is the problem of getting work and keeping time ; of learning how to conform to the regime in a factory, and how to get used to the whole idea of a regular period of work. For some it may be helpful to have attendance based upon working hours, and the question of timekeeping and that sort of thing. It is possible to train somebody for a short period in the idea of a job and what is entailed. Then there is occupational training, the use of tools and so on ; and again we have a good deal of experience in the Prison Service. I have seen people maybe less inadequate than those in day training centres who are doing comparatively 656 difficult joinery cuts after only two or three days. The noble Lord is also right when he says that there is sometimes need for help with family relationships, if they manage to keep their wives or have some other family relationship. That would include home economics, how to budget, things of that sort. The bachelor might very well profit from it, too, whether he is in Seven Dials or St. James's Street—I think Seven Dials is more respectable now. But that is the sort of picture.
I think the noble Lord has done us a service by raising this discussion and he was very accurate and very much on the ball. Perhaps I have expanded it a little and given him some encouragement. I hope now that the noble Baroness, Lady Wootton, will not be quite so unenthusiastic. Perhaps she is not. Anyway, we must see if these experiments work. I appreciate they are going to be expensive, but it is thought that they will be worth while.
§ LORD DONALDSON OF KINGSBRIDGE
I apologise for having moved an Amendment which was unnecessary, but we have extracted from the noble Viscount the kind of thing I was hoping to hear, and my noble friend has explained to him that he has £24 a head to spend, which ought to enable him to do the job very well. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 9.54 p.m.
§ On Question, Whether Clause 19 shall stand part of the Bill?
§ BARONESS WOOTTON OF ABINGER
We seem to have strayed into discussing Claue 19 in toto on an Amendment of a very small part of it, and I was rather embarrassed as to whether I should speak on my noble friend's Amendment or on the Question, That the Clause stand part ; and I propose to do the latter. I do not know where the story came from that I am unenthusiastic about the whole idea of day attendance centres. This is not true. I am very enthusiastic ; I think it is a highly imaginative proposal. But I am a little concerned about what I have just heard, about how the sentence is going to work out. My noble friend gave a very vivid profile of the type of person expected to attend these centres, and it 657 did not quite coincide with what I had imagined. I hope that attendance is not to be restricted to this particular type of very inadequate person.
The Explanatory Memorandum says that the day attendance centres are places where social education will be provided in conjunction with intensive probation supervision. In the clause itself there is no reference to the content of the training. The clause itself says (and I am trying to make my remarks as short as possible) that the person is required to attend only if there is a centre to go to. That is reasonable. He is not to attend for more than 60 days unless this is extended, and when there he has to do what he is told. The Secretary of State may make rules and regulations, and no person is to be appointed to be in charge of the centre without his approval. It does not say a single word about what will go on at the centre, or that the Secretary of State may make regulations as to what will be carried on. The noble Viscount gave a description of some elementary social education, and I hope that if people cannot read or write they will be able to learn there. He has given a description of their learning how to deal with forms and how to hold down jobs.
All this, however, suffers from one extraordinary vacuum which seems to run through the whole penal arrangements ; that is, that one must never mention that the whole object of the exercise is to prevent people from committing offences. The noble Viscount has said we may help them to get on with their families and other things like going to work, good timekeeping and so on. The Explanatory Memorandum says that social education means behaving like a responsible citizen. I hope that when the attendance centres are brought into being they will pay a good deal of time and attention to people's ideas about what is right and what is wrong ; why certain things are prohibited, or ought to be, and how people can be encouraged to see sense behind all these things. A number of people take the view that it is all right to steal from a railway company but quite wrong to steal from someone they know. They need to be led to widen their horizons so that they see that theft from some corporate body is just as criminal as theft from an individual. No 658 reference has been made to social education in this widest sense at all and I hope the noble Viscount will be able to assure us that it is not going to be just the three R's, and of keeping a job and being a steady workman.
VISCOUNT COLVILLE OF CULROSS
It would be foolish of the Government not to listen carefully to what the noble Baroness has said. I may have orientated my description too far in one direction. Fortunately for all concerned I am not trying to run or to set up day training centres. The points the noble Baroness has made about the other ingredients in the treatment are very valid and I entirely accept them. Exactly how this is done in any given case must be left to the discretion of the person who is having to train the individual. That aspect of the régime is something we should be reminded of.
§ BARONESS WOOTTON
I hope some day we shall have a profile of persons who will run these centres because I think the reason the Committee did not dare recommend them was because they thought they would have to be run by archangels of genius and intelligence.
§ Clause 19 agreed to.
§ Clause 20 agreed to.
§ 10.0 p.m.
§ THE EARL OF MANSFIELD moved Amendment No. 18:
§ After Clause 20 insert the following new clause:
§ Mental treatment for offenders subject to probation order
§ " . In section 4(1) of the Criminal Justice Act 1948 as amended by Schedule 7 to the Mental Health Act 1959 the words ' not extending beyond 12 months from the date of the order ' shall cease to have effect."
The noble Earl said: I beg to move Amendment No. 18. If this new clause were to take effect Section 4(1) of the Criminal Justice Act 1948 as amended by the Mental Health Act 1959 would then read:
Where the court is satisfied, on the evidence of a duly qualified medical practitioner approved for the purposes of Section 28 of the Mental Health Act 1959, that the mental condition of an offender is such as requires and may be susceptible to treatment but is not such as to warrant his detention in pursuance of a hospital order under Part V of that Act the corm may, if it makes a probation order, include therein a requirement that the offender
shall submit, for such period … as may be specified therein, to treatment by or under the direction of a duly qualified medical practitioner with a view to the improvement of the offender's mental condition.
I will say at once after the last matter that I raised in your Lordships' House that this is intended to be helpful. It is intended to give the courts the greatest possible discretion. I do not think it is going to cause any trouble to anybody. I have moved this Amendment hoping that the noble Viscount would at least consider it. For my own part, in my own professional practice the only time when I have come up against psychiatrists and persons of that ilk who like to have more than 12 months is in those desperately sad cases of infanticide where women kill their young children. I beg to move.
VISCOUNT COLVILLE OF CULROSS
I am very much inclined to advise the Committee to accept this Amendment. Whether the Committee would like to do it on the drafting of my noble friend—and it is no insult to him for me to suggest that there may possibly be snags in drafting, as there always is, so far as I can make out, in drafting by anybody other than the official draftsman—or whether it would be better to leave this for me to put down an Amendment at Report stage, I do not very much mind.
I should like to make one point, and I think those who advocate this should bear it in mind. As my noble friend said, I think it is not very often that it will be suitable to carry on the mental treatment as a condition of the probation order for very much longer than 12 months. Usually it is found that if success is to be achieved with these cases it is possible to establish a relationship between the patient and the doctor which does not need to be supported by a compulsory condition in the probation order for that length of time. If it is not possible, then it is probably better not to try to do it under a probation order but to go for a hospital order instead, although I know that that needs certain certificates. I do not wish it to be thought that this Amendment will provide the complete cure for the difficulties that arise for those who are on probation with a mental treatment order, because at the moment the usual case is somebody who can be helped quite quickly by a 660 psychiatrist but still needs the supervision and help of the probation officer, even after that treatment is over. That is the standard sort of case to which the provision at the moment applies, though I understand that there can be exceptions. I think that it would be useful if we extended the discretion of the court in this way. If the noble Earl would like to have the Amendment in this form I do not mind. It might need some consequential Amendments, however, and he might prefer to withdraw it and put down an Amendment at the next stage.
§ THE EARL OF MANSFIELD
I am most grateful to my noble friend. I thought that I drafted the Amendment rather well, and should prefer it to be accepted.
§ On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS
Although we still have a certain way to go, some of the bulk left is in fact in large Amendments in my name which I think—and I pray—are going to be fairly non-controversial. The Committee may think that this might be an appropriate hour at which we could break off and resume another day. If so, I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.