§ 11.7 a.m.
THE MINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS)
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—Viscount Colville of Culross.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ LORD HACKING moved Amendment No. 18A:
§ After Clause 20 insert the following new clause:
§ Power to impose fine together with probation order
- (a) may, at the same time, for the same offence or other offences before the Court, impose a fine, or (as the case may be) fines ;
- (b) shall not, at the same time, for the same offence or other offences before the Court, pass a sentence or (as the case may be) sentences of imprisonment or borstal training or make an order for attendance at a detention centre.
§ (2) In the said section 3(1) the words " instead of sentencing him " shall be deleted.")
The noble Lord said: I am seeking by this Amendment to persuade the Committee to give the court power to fine an offender as well as placing him on probation. The Amendment is directed to Section 3 of the Criminal Justice Act 1948 and it may assist those of your Lordships who are not familiar with that provision if I read it. The relevant part
of the section to which the Amendment is directed reads:
Where a court by or before which a person is convicted of an offence … is of opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, instead of sentencing him, make a probation order. …
The section goes on to explain the terms of the probation order which under the section the court can make. Some of your Lordships will know that this section prohibits the passing of a sentence only on the same offence ; it does not prevent the court from passing a sentence of imprisonment or imposing a fine on another offence which is before it, whether it is in the same or a different indictment. It may, therefore, be helpful to note the practice of the courts in the application of this section.
§ From a very early stage the courts have ordered—there is an authority to support this—that there should not be simultaneous sentences of imprisonment, borstal training or orders in a detention centre together with an order for probation, and the courts have held, on one authority at least, that to do so would be against the spirit of the Act, although it was permissible to retain a probation order for a later sentence of imprisonment. In other words, if an offender at a later stage during the currency of the probation order committed an offence and was sentenced to a period of imprisonment, it was permissible to retain that probation order so that he might have the continued guidance of a probation officer when he came out of prison, if it was during the currency of the probation order. The courts have also considered whether it is right to impose a simultaneous fine at the same time as placing an offender on probation. Without a great deal of logic, I confess, the courts have found it permissible to do this and it has been the practice of the courts since 1948, when there has been more than one offence before them with a single offender, to place the offender on probation in the appropriate case and, on another offence, to fine the offender.
§ In moving the Amendment I am seeking to do two things: first, to permit probation and fines as simultaneous orders, and secondly, to forbid under Statute simultaneous probation and sentences of imprisonment, borstal training 945 or orders relating to a detention centre. The latter needs no explanation, but your Lordships will wish to hear my reasons for arguing that fines and probation should be applied at the same time. My first reason is that this power has long been needed. The courts, and particularly the magistrates' courts, have often had an offender before them who needed both to be punished and to be guided. Of course, under the new compensation provisions in this Bill there are powers for the court—these powers have existed for some time, indeed, it is right to remember that under Section 11 of the Criminal Justice Act 1948 the courts have had power to order compensation, a power which has not been used frequently—to make compensation orders against an offender at the same time as placing him on probation, and this power is extended in this Bill. But compensation orders do not wholly meet the point. There are cases where there needs to be punishment quite separate from compensation—for example, where the misbehaviour has been serious and the damage on which a compensation order could be made has been small. There are also cases where compensation orders are not available, either under the old law—under Section 11 of the 1948 Act—or under the new provisions as set out in Clause 1 of this Bill.
§ Let us consider three examples. The first is an offence of attempted burglary. Sometimes a burglar will have damaged the property, but there are other occasions when all he has had to do is prise open a window and climb in, so that there has been no damage to the property and nothing taken on which a restitution order could be made. The second example could be that of a shoplifter who is apprehended as he is coming out of the shop, so that the goods are recovered and no compensation order or order for restitution is available. A third example can be found in an offender who has committed an offence against one of the drug regulations where, if there has been damage, it is impossible to assess it and certainly impossible to apply any compensation order arising out of it.
§ In view of what has been said during the first day of the Committee it is also important to understand what this Amendment is not doing. In the first place it is not increasing the prison popu- 946 lation. The noble Viscount who spoke for the Government during the first day of the Committee stage on more than one occasion drew your Lordships' attention to the crowding in prisons and the number of persons who received sentences of imprisonment. This Amendment certainly is not doing that and I hope to persuade your Lordships in a moment that it will be doing exactly the reverse.
§ Secondly, it is not involving the Probation Service in the enforcement of any punitive measures. It is certainly not a term—and I am not seeking to make it a term—of the probation order that the fine should be paid. Some of your Lordships may remember that I sought to move an Amendment on rather different lines earlier in the Committee when I sought to couple a compensation order with probation. This does not, and it keeps the Probation Service free from the enforcement of punitive measures. I would argue further that it may assist a probation officer to help the offender to live in the community. That is an argument I certainly frequently use and I suppose I shall frequently use again in the future when I am representing an offender and arguing the uselessness of imprisonment or other forms of detention and argue that the hub of this question, both from the point of view of society and the offender, is to make the offender learn how to live within the community ; and if he has the additional burden of a fine, he is in a sense, having to live in an even more realistic community (with the assistance of the probation officer) than he would otherwise be living in.
§ I said just now that part of my argument in moving this Amendment is that I believe it will save persons from going to prison. Perhaps I may just briefly enlarge upon that at this stage. There are two circumstances in which I argue—if this Amendment is passed—that persons will be saved from going to prison. The first one arises out of the point I made just now: of the assistance a fine could provide to the probation officer in helping a man living with a burden within the community. Of course the fact of living with a burden in a community often causes offenders to commit offences and thus to come before the court because they cannot cope with living not only in society but with the burdens of society. Whenever 947 a fine is imposed upon an offender it is the duty of the court to pass an alternative sentence of imprisonment. It sometimes happens—and indeed too frequently happens—that the person fails to pay the fine. That is not because he is not given a great deal of leniency by the court. He is given in the first place, for instance, an opportunity to pay the fine over a period of time, and secondly, if he should run into difficulties, he is given the opportunity to come back to the court. An offender who is not guided by a probation officer sometimes fails altogether properly to lay money aside for a fine and when he gets into difficulties fails to come back to the court to ask for an extension. In those circumstances, therefore, a person who otherwise would not be in prison finds himself in prison in default of a fine. I argue, of course, that if he is assisted by the Probation Service that that circumstance will be reduced.
§ Secondly, and I think this is also important, it will enable the courts who think it is right to punish, to punish without coupling it with imprisonment. I noted that when the noble Viscount addressed the House on the Second Reading of this Bill he said that since the availability of suspended sentences there has been a marked decrease in both the probation orders and in fines imposed. I argue that this is not without significance. I argue that many courts feel it is right to punish in the exercise of their public duty, and hence that when they are faced with the alternatives of either placing a man on probation or punishing him either by way of a fine or, more particularly, by way of depriving him of his liberty, the courts choose, and regrettably choose too frequently, to move towards punishment rather than towards guidance.
§ I happen to share the view of some of your Lordships who think that some courts in this land are too punitive in approach. I happen in particular to share the views of the noble Lord, Lord Wells-Pestell, who spoke on Second Reading about the uselessness of imprisonment. This Committee must recognise that there are tribunals both of the justices' bench and in the Crown Courts who do hold their duty seriously towards the public and who feel that 948 it is their bounden duty in many cases to punish. In my submission to this Committee, if my Amendment is passed, then this duty will be satisfied and hence the incidence of imprisonment sentences will be reduced.
§ It is certainly not my intention to divide the Committee. If some of your Lordships are against me, and in particular if the Government are against me, all I would ask is this: that if the Government are persuaded by my argument and think that there is some substance in it they will further consider the matter before the Report stage. I beg to move.
§ 11.20 a.m.
§ LORD WELLS-PESTELL
I regret having to join issue with the noble Lord who moved this Amendment. Without going into any great detail, I think I am right when I say that he is trying to introduce into our judicial system something which we have rejected over the centuries ; it has always been a cardinal principle of British law, as I understand it, that we should never punish a man twice for the same offence. I think that is what the noble Lord's Amendment amounts to. Parliament and the High Court, by their decisions, have laid down certain forms of dealing with a defendant : one is imprisonment, another is probation, another is a fine, another is borstal, another is detention centre and so on. I would suggest, with the greatest respect, that the court can do only one of those things, and if you couple a fine with probation you are imposing two penalties for the same offence. I think this would be wrong, and it is something which I hope your Lordships will resist. I hope that the Government will resist the Amendment upon that ground, if on no other.
The other thing I would say is that when a person is placed on probation some considerable care is exercised in deciding whether probation is the right method of treatment for that particular individual. Of course it sometimes breaks down ; the wrong people are chosen for probation. But the whole purpose of probation is to give that person a one-to-one relationship with somebody who is sufficiently skilled and competent to help them overcome their difficulties. This does not always meet with success, 949 and I think that for a defendant to enter into that kind of relationship feeling that he has already been punished for the offence, by having to meet a perhaps quite substantial fine, would interfere very seriously with that kind of relationship.
The noble Lord, Lord Hacking, is quite right ; it is perfectly proper that when a defendant is charged with other offences he can then be fined. I myself on Tuesday of this week put somebody on probation for two years ; there were two other offences and he was fined £25 each on the other two offences. But there are three offences ; he is being punished not three times for one offence ; he is being punished—if " punish " is the right word—in respect of each of the three offences. This seems to me in certain cases to be highly desirable. But I dislike the idea of introducing a double penalty for the same offence.
I do not want to take up the time of your Lordships. The noble Lord said that it is desirable that people should be punished and guided. This, I think, is desirable in many cases. But if we are going to carry that to its logical conclusion, does not every delinquent need guidance? Why not make a probation order in every case, regardless of whether you fine them or send them to prison? But I want to rest my argument on my first point, which is that I think it highly undesirable to depart from what I think is a cardinal principle ; that is, that you never punish a person twice for the same offence.
§ LORD DIGBY
It is seldom a good thing to try to get the best of both worlds. As a magistrate, I have often wanted to have this power. But magistrates have to think of the offender, the victim and the general public. Magistrates are there to take a decision and not to find an easy way out. I think this Amendment would strike at the whole basis of probation, which is that it is voluntary ; the offender has to agree to go on probation and also that he can be brought back for punishment if he does not stick to his probation. For those reasons, I hope that the Committee will not accept this Amendment.
§ LORD CHORLEY
I should like to say a word on this Amendment. On the 950 whole, I agree with my noble friend Lord Wells-Pestell about it, although in the past I have rather taken the other view. I disagree with him, though, when he refers to probation as punishment. I do not regard probation as punishment at all ; it is a sort of suspended sentence. It is only if the man breaks the terms of his probation that he is brought back and then punished. On the whole, I think the provisions are now being made which will enable the court to see to it that an offender who has done damage to property, or in other ways done damage, can now be required to make good that damage. It goes a long way towards satisfying the feelings which I have very often had as a magistrate, that it is a pity that one cannot impose a fine, especially in the case of a probationer who obviously is in good employment and could quite easily pay a fine. On the whole, I would agree with my noble friend's advice to the Committee to reject this Amendment.
§ LORD WELLS-PESTELL
I wonder whether your Lordships would allow me the indulgence to correct something. I hope that I did not say that I regarded probation as a punishment. If I did, I should want to withdraw that.
§ LORD HAMILTON OF DALZELL
I should like to join in this discussion, particularly on the question of the effect of a probation order. I think the difficulty about Lord Hacking's Amendment is that it does in effect combine a fine, which is a punishment, with a probation order, which is not. The whole point of making a probation order is that you say to the person, " We are not going to punish you. We are going to make a probation order for two years (or whatever it may be) and if during that period you can show that you can live an honest and regular life then you will not be punished at all. But if, on the other hand, you fail to do that, you will be brought back before the court and you may then be punished ". It seems to me very difficult for the court, having said all that, then to say at the same time, " We are going to punish you by imposing a fine ". That makes it difficult to see how this present Amendment would work.
I realise that the Committee of the noble Baroness, Lady Wootton of 951 Abinger, envisaged the possibility of fines combined with some form of supervision, but that, I think, would have meant a different form of supervision. The Report says:The form of supervision which we have in mind will be distinguishable from probation inasmuch as the defendant's consent would not be required and no further punishment could be imposed for the original offence.In their argument about this proposal they had already concluded that it would not be possible to ask somebody to agree to a probation order and to agree, simultaneously, presumably, to be fined. Therefore, a new form of order would have to be devised which would not involve asking the consent of the person proposed to be put on probation.
The noble Lord, Lord Hacking, seems to be seeking to get round that difficulty by his following Amendment, which does away with the requirement of consent altogether. That would be bitterly opposed, I know, by probation officers, inasmuch as it strikes at the whole concept of the relationship between the probation officer and his client. That is a point I shall have to enlarge on if he pursues that next Amendment. At present it seems to me that, even if it is thought that a fine and supervision can reasonably be combined together, this Amendment is not the way to achieve it.
§ 11.28 a.m.
VISCOUNT COLVILLE OF CULROSS
Although the noble Lord, Lord Hacking, has spoken from his own experience, he must appreciate that some fairly weighty experience is ranged against him from a number of people who have wide experience, both as magistrates and as probation officers, or in very close connection with the Probation Service. I must confess that I would agree with them, for the reasons that have been given, that this Amendment would be a mistake. It is absolutely fundamental, and always has been the case, that a probation order is made in place of a sentence ; it is not a sentence. I never misunderstood the noble Lord, Lord Wells-Pestell, to be saying anything of the kind ; I know what he means, and I will come back to it. This would really mix up the two and make the long established, and, I believe, valuable, distinction very shaky indeed.
There are in fact the various situations in law which the noble Lord, Lord 952 Hacking, set out—a fine on another occasion, compensation with a probation order. I will not go into them again because the noble Lord has adequately dealt with them. I believe there are two points here ; the noble Lord, Lord Wells-Pestell, crystallised them, but he was strongly supported by other noble Lords. If you fine a person at the same time as putting him on probation you do not necessarily, but you risk, punishing him twice. You fine him and then—and this is one of the points the noble Lord, Lord Hacking, made—you impose as a separate matter the other conditions as part of the probation order. Now if he breaches those other conditions it will have nothing to do with the fine, but he may be liable to be brought back before the court and punished for the original offence. He has already been punished for the original offence, but he is now going to be punished again, not in connection with paying a fine but for failing to comply with one or other of the other conditions of the probation order. I do not think this would be a satisfactory way, either in the purely jurisprudential sense or in the practical sense, of dealing with the matter.
The noble Lords, Lord Wells-Pestell and Lord Hamilton of Dalzell, mentioned the question of probation itself and of the relationship between the offender and the probation officer. My advice is—and other noble Lords will know this better than I—that it is never popular when a probation officer gets too closely involved in one financial aspect of the offender's life ; there are much wider and much more diverse and subtle relationships to be established between a probation officer and the person under probation than concentrating on getting a fine paid. We are afraid that if this Amendment was passed there would inevitably be too much emphasis on the probation officer's part to get the offender to pay the fine. This would spoil and corrupt the relationship he has struck up between himself and the person in his care.
As an illustration of this, there is already a power under Section 71 of the Magistrates' Courts Act for magistrates to make a fine supervision order, and this they quite frequently do. I am told that where this happens the Probation and Aftercare Service has become more and 953 more reluctant to get itself involved in the work of a fine supervision order, and the tendency has been to go for the ancillary staff and to recruit special people, such as former police officers and other ancillaries, to the Probation Service to help with this particular aspect, since leaving it to the probation officer is not conducive to the ordinary relationship which the courts hope to set up between him and the person in his care.
If this is so, we really are in a dilemma ; we are in danger, as the noble Lord, Lord Wells-Pestell, said, of having a double penalty. I also believe that we are in real danger of upsetting the whole probationary relationship, which I believe is a very valuable one and rather more subtle and delicate than the noble Lord has perhaps appreciated. Incidentally, if there is any difficulty about seeing that a fine is paid, there are now substantial powers to attach a man's earnings. This is another way of keeping him out of prison, so that I am not sure that the noble Lord is on a very strong ground in saying that the Amendment would reduce the number of prison sentences.
I should like to mention briefly parapraph (b). The noble Lord is quite right ; it is not stated in the Statute Law that a court cannot pass a custodial sentence on a person and at the same time put him on probation. But the courts established quite early on that such action would be wholly inappropriate and against the spirit of the law. Since those decisions were made, the system has worked perfectly well, and I cannot see any necessity to put this into a Statute. I am not in favour of cluttering up the Statute Book with specific words to cover something which is already working satisfactorily in practice. I hope the noble Lord will appreciate that we have given careful consideration to his arguments ; but the merits, I think with great respect, are all against him and I do not suppose he will wish to pursue the Amendment much further.
§ LORD HACKING
Not having heard one noble Lord speak in favour of my Amendment, I shall be asking your Lordships' leave to withdraw it. But, before doing so, may I take up three matters? First, I do not press paragraph (b) of my 954 Amendment in isolation ; it was put in as a matter of tidiness, assuming that paragraph (a) had met with your Lordships' favour. The noble Lord, Lord Wells-Pestell, said that in moving this Amendment I was challenging a cardinal principle of probation. Certainly that was not my intention. As I made plain at the beginning, I had in mind that there were two quite separate matters under consideration: the guidance of the offender under probation and the necessary punishment for the wrongdoing.
Coming to the last point, whatever arguments have been presented in support of the distinction between putting the offender on probation on one offence and fining him on another, I submit that the distinction is artificial. The offender goes away from the court both with the probation order and with the punishment of a fine. I will now seek leave to withdraw the Amendment, but before doing so I should like to state publicly that I have not been in any way snipping at the Probation Service. May I publicly state my admiration for it, because, as a practising member of the Bar, I find myself in close contact with probation officers and I count many of them among my friends—I indeed recognise the subtle and delicate nature of their work. I beg leave to withdraw the Amendment.
§ 11.34 a.m.
§ LORD HACKING had given Notice of an Amendment (No. 18B):
§ After Clause 20, insert the following new clause:
§ Removal of consent of offender to probation
§ (" . In section 3(5) of the Criminal Justice Act 1948 the words "and if the offender is not less than fourteen years of age the Court shall not make the order unless he expresses his willingness to comply with the requirements thereof" shall be deleted.")
§ The noble Lord said: I do not propose to move this Amendment, but I would ask your Lordships to bear in mind the words I used about the Probation Service when I spoke on the previous Amendment. Indeed, this new clause was suggested by a much-respected member of the Probation Service with some twenty years' experience, and it was directed only against the artificial circumstances in which a consent is obtained from a man when he is put on probation. However, I had the opportunity before coming to this Committee of discussing the 955 matter with a number of your Lordships, and particularly the noble Lord, Lord Wells-Pestell. I recognise that many of your Lordships feel strongly about this matter, and I certainly should not wish to move any Amendment which might in any way appear to impede the Probation Service. The purpose of my Amendment was indeed to assist the Service.
§ Clause 21 [Deferment of sentence]:
LORD SWAYTHLING moved Amendment No. 19:
Page 18, line 34, after (" on ") insert (" or otherwise dealing with ").
§ The noble Lord said: My Lords, this Amendment is similar to Nos. 20 and 22, and the reasons which prompted me to move them are therefore similar. They have already been mentioned in discussing Amendment No. 18A. It may well be that a court which has deferred sentence under Clause 21 may on occasions wish at the end of the deferment to make a probation order. I understand that a probation order, as has been said earlier this morning, is not a sentence, and Section 3(1), of the Criminal Justice Act 1948 states that, instead of sentencing, the court may make a probation order. Further, as we have also heard, when a court makes a probation order the convicted person is told that he is not being punished then, but that if, during the period of the order, he is convicted of some other offence he may be brought back and sentenced both for the original offence and for the subsequent one. If the Bill is amended to include the words in the three Amendments it will be quite clear that the court has power to make a probation order after the deferment if it so desires. I beg to move.
§ 11.40 a.m.
VISCOUNT COLVILLE OF CULROSS
I am absolutely at one with the noble Lord, Lord Swaythling, in his thinking. I just hope that I can reassure him that the words in the Bill in no way restrict the court from doing exactly what the noble Lord and I would wish. I am advised that this is a technical and drafting matter, and that as the clause stands there is absolutely nothing to prevent the court from subsequently considering what to do with a person at the end of the period of deferment: either placing him on probation, making an order for a conditional discharge or ordering an 956 absolute discharge. The words of the Bill, " may defer passing sentence " are shorthand for " using their sentencing powers ", and their sentencing powers include a power not to sentence under the Criminal Justice Act, to put him on probation, or award a conditional discharge, and that sort of thing.
There would be a positive demerit, as a matter of drafting, in what the noble Lord suggests, because it could suggest that the court could defer sentence before committing him to the Crown Court for sentence. I do not think we would wish them to do that. If the case is suitable for sending to the Crown Court because the magistrates do not think that they have enough powers to deal with the offender, it should go to the Crown Court, and it may be that the Crown Court will consider whether to defer sentence or not. But we do not wish the magistrates to postpone sending the man to the Crown Court under this clause. It is not absolutely apparent to the person first reading the Bill that this is so ; but I assure the noble Lord that the Bill is drawn in the way he wants it, that the words are not defective and will not impose the restrictions he fears. I hope in those circumstances that he will not think that he has to press this Amendment.
§ BARONESS WOOTTON OF ABINGER
I cannot refrain from expressing pleasure that there is one occasion on which the noble Viscount has admitted that the Parliamentary draftsmen have availed themselves of using " shorthand ".
§ LORD SWAYTHLING
While thanking the noble Viscount for his answer, which completely reassures me, may I just refer, as the noble Baroness did, to the use of " shorthand " in the Bill. On the face of it it looks as if the court had only that one power, but I accept what the noble Viscount says and beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD SWAYTHLING moved Amendment No. 21 :
Page 19, line 9, at end insert—
( ) Where a magistrates court which under this section has deferred passing sentence on an offender proposes to sentence him, the court which sentences or deals with him
need not be composed of the same justices as that which convicted him ; but, where among the justices there are any who were not sitting when he was convicted, the court which sentences or deals with the offender shall before doing so make such inquiry into the facts and circumstances of the case as will enable the justices who were not sitting when the offender was convicted to be fully acquainted with those facts and circumstances.
§ The noble Lord said: Many of your Lordships will be aware of the difficulties that arise in magistrates' courts when a case, after conviction, has to be adjourned either for a probation officer's report or for a medical or psychiatric report. The difficulty is to ensure that the magistrates, or at least the majority of them, can be present on the adjourned date. These adjournments are usually for two or three weeks. I feel that if the court under this Bill deferred sentence for six months, this difficulty would be considerably increased. The words of the new subsection which I am asking your Lordships to insert are based on those which are used in the Magistrates Courts' Act 1952, Section 98(7). They were designed in that case to alleviate the difficulty I have outlined, and if inserted here I feel would also alleviate this difficulty. I beg to move.
I should like to support this Amendment, if it is in fact necessary. After we have heard from the noble Viscount I may feel that it is not necessary. There is this point to be made ; I gather that what actually happens is that the magistrates themselves usually arrange for one of the magistrates to be present at the deferred hearing if it is anything in the nature of a serious case where imprisonment is likely to be imposed. I gather it is not essential for them to be present, but I think chairmen of magistrates' benches have shown a fairly good understanding of their duties and of the rights that a person who is to be accused is entitled to. Nevertheless, it may very well be that an exceptional case may arise where the particulars are not given. I may be wrong, but I understand that there is no compulsion to go into the details or give them to a new bench which is sitting. In those circumstances, if there is such a vacuum, it might very well be advisable for these words to be introduced into the Bill. As I say, I stand prepared to be given an 958 understanding which perhaps up to now I have not had of the matter.
VISCOUNT COLVILLE OF CULROSS
Again I am entirely at one with the noble Lord, Lord Swaythling, and the noble Lord, Lord Janner. What, after considerable scratching of heads, we have been unable to detect is why the noble Lord, Lord Swaythling, does not think that Section 98(7) of the Magistrates' Courts Act 1952 applies. We think it does. The situation is that the man would have been convicted ; he would not have been sentenced because sentencing power would not yet have been used, and, therefore, the matter would be deferred or, in the word of the subsection, " adjourned " to a later date. That subsection says that the court need not be the same one,but, where among the justices composing the court which sentences or deals with an offender"—and that covers a probation order, and anything of that sort—there are any who were not sitting when he was convicted, the court which sentences or deals with the offender shall before doing so make such enquiry into the facts and circumstances of the case as will enable the justices who were not sitting when the offender was convicted to be fully acquainted with those facts and circumstances.That is the existing law. So far as we can make out there is absolutely no reason why it should not apply in the case of every deferred sentence. It is entirely apt for it. It meets exactly the noble Lord's point. I do not really think that there is any necessity to write words into the Bill which would merely duplicate the provision which is already in the law.
I hope the noble Lord will be reassured by that, and will feel that he does not need to pursue this matter because his point is already perfectly adequately covered by the subsection that he mentioned.
§ LORD SWAYTHLING
I put down this Amendment because I was advised that it was desirable to have it in here, as it was possible that it did not apply from the original Act if it was not included here. The assurance the noble Viscount has given is very useful and I am grateful for it. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.959
§ 11.48 a.m.
LORD WELLS-PESTELL moved Amendment No. 23:
Page 19, line 15, at end, insert—
( ) Where a Court defers passing sentence under this section, it may, with the offender's consent, make a deferred sentence supervision order of the nature and subject to the provisions of section 11(3) to (11) inclusive.
§ The noble Lord said : I beg leave to move Amendment No. 23 which stands in my name. I can deal with this very briefly. What I am asking this Committee to do is to agree to the defendant being placed under supervision when a deferment of sentence order has been made. Your Lordships will know on reading Clause 21 that the court, after taking into account a number of considerations, can defer passing sentence on the defendant provided the deferment does not exist for a period longer than six months. I think that this takes the place of a rather outmoded practice, which the courts have dropped over the years, when not wanting to deal that day with a particular situation because the chap said, " Well, I have got a job to go to, and I shall be starting work on Monday ", or, " If I am given an opportunity I will make restitution ", or, " If I am given an opportunity I will pay compensation ". The practice many years ago—and I did it myself on a number of occasions—was to remand the person on bail for three months or even six months, and during that period he kept in touch with the probation officers, who sometimes helped him to get a job or to get on his feet, or to make restitution if he had embezzled money, and so on, and it worked extraordinarily well, but he had the help of the probation officer.
I feel that Clause 21 will replace the practice, which has fallen into disuse, of remanding a person on bail for a long time to see what happened. Subsection (1) states:
(including, where appropriate, the making by him of reparation of his offence) or to any change in his circumstances.
This provision is likely to be used only when the court has come to the conclusion that there are good reasons for not dealing with the defendant in any other way, in order to give him an opportunity of taking the job which he assures the court he has secured, to go into the lodg-
ings which he tells the court he has obtained, to make restitution or to pay compensation, as the case may be. But I want to emphasise that it is during that particular period that the defendant needs guidance and help.
There is a second reason for saying that he ought to be under supervision—and when I say " ought to be under supervision ", I mean supervision with his consent. As I understand the clause, there cannot be a deferment of sentence unless the defendant consents to a deferment of sentence. Therefore, he would obviously be expected to consent to the supervision. That is helpful, because there are so many situations during the period between leaving a court and coming up again in six months' time when he could go wrong and when there is no one to help him and no one to whom he can go. It is desirable, if a court is to take this quite extreme action, that at the end of that period it should be able to turn to the probation officer and say, "Will you give us a report on the conduct, behaviour and progress of this man during the last six months?" It is for those reasons that I have set down this Amendment. The only other comment I would make is that in the Amendment I have used the words
… subject to the provisions of section 11(3) to (11) inclusive.
I think that those conditions which normally go with a suspended sentence should also be applied in this case.
§ BARONESS WOOTTON OF ABINGER
While I have some sympathy with my noble friend's observations, I think it was very much in the minds of the non-custodial penalties committee—if I may so call it, for short—that there must be some occasions when an offender stands on his own feet. When considering deferment of sentence, it was our view that all these promises about the nice job on Monday, and about the lodgings and the prospective marriage which we are all very accustomed to hearing, should be verified by the actions of the offender himself ; and perhaps on that occasion, even with his consent, there should not be any additional supervision. I do not feel very strongly about this Amendment, but I should like to put that point forward to be weighed against what my noble friend has said.
§ LORD DONALDSON OF KINGS-BRIDGE
May I support my noble friend Lady Wootton of Abinger here, again without great enthusiasm or feeling? It is a near thing. I feel it is confusing to have too many alternatives which are too like one another. It seems to me that if you are deferring sentence and the man requires supervision, you should put him on probation. I cannot see any point in the deferment of sentence with supervision, unless you do that. What is also important is that if you defer sentence and the man carries out his pledge, he goes away with an absolutely clean sheet and there is nothing of any kind against him. Probation is not a punishment and it is not a sentence, but it is of course a slur on a man's past. I should prefer that deferment of sentence left it to the man to fulfil his word and, if he did so, left him absolutely in the clear.
§ LORD HAMILTON OF DALZELL
The Probation Service feels that in some cases it could well, with advantage, be involved with people whose sentences were deferred, but that may be due to a misunderstanding to which I should like to come back in a moment. But the people in the Probation Service are quite clear that they would not now like to be asked to supervise people with deferred sentences, in view of the general pressure of their work. They accept that on many occasions they will probably have to produce a report on whether or not a person has carried out the undertakings on which the deferment was based, and they are anxious on such occasions not to be asked again for a full social inquiry report on what has gone on during the period of the deferment. But that may be due to a misunderstanding.
It was made very clear in the proceedings in another place, and possibly here on Second Reading, that deferment of sentence is envisaged in only very special cases where some concrete undertaking is required of the person: that he shall make some payment in restitution, that he shall do something which can be easily verified at the end of the period of deferment. But one does not get that impression from reading the Bill. So I shall be happy if the noble Viscount can tell us all how the idea of how the system will work is to be conveyed to the 20,000 magistrates up and down the country who will be required to operate it.
§ LORD GARDINER
If I may add a further word, there are some admirable provisions in this Bill but, as I have said before, it is not quite clear to some of us how the Government intend that some of them should operate in practice. That is very much what the noble Lord, Lord Hamilton of Dalzell, was saying. A view which has been put forward by some magistrates—and I address the Committee having had my own research work done, and knowing that there are 74 of your Lordships who are justices of the peace and will therefore know much more about this matter than I do—is that there seems to be no provision of means whereby a court is to be informed of the way the convicted person has behaved during the period when he was awaiting sentence. It appears that he will not be under supervision of any kind, and that no statutory duty will be laid upon anyone to provide a court with information on which it can rely ; that is to say, about whether the person has been of good behaviour, whether he has taken up his employment and whether he has made any kind of restitution. It is at least advisable that the position should be clarified, either in the Bill or in some accompanying regulations.
Presumably, if a legal aid order remained in force a duty could lie on the solicitor to provide the court with an affidavit, accompanied by any documentary proof required. Alternatively, a man could be required to see a probation officer shortly before the day appointed for sentencing, who could then arrange for any necessary documentation to be obtained. What must not be allowed to happen, but could quite easily happen unless some procedure is laid down, is that a man turns up for sentencing and makes assertions which a court has no means of verifying without a further adjournment. I shall be grateful if the noble Viscount can clarify the minds of the Committee on the practical side of the matter.
§ LORD CHORLEY
There is a great deal in what my noble and learned friend has said. I remember one occasion when a man moved a long way away to a quite different part of England. He really got on very well, but it was difficult to discover that fact. Eventually, the probation officer in the area to which he had 963 moved—on his own, so to speak—provided us with reports about the man and the whole matter worked out very well. But I felt at the time that the situation was far from satisfactory, and my noble friend Lord Wells-Pestell has put forward a valuable suggestion. I do not think it will be so big a strain on the Probation Service as has been suggested if it provides this supervision, as this does not happen very often. But there is a gap here which this suggestion admirably fills, and I hope that the Government will accept the Amendment.
§ BARONESS WOOTTON OF ABINGER
I do not think my noble and learned friend Lord Gardiner really added to confusion at all, because he himself gave the obvious solution. During the period of deferment the man stands on his own feet and tries to fulfil, we hope, the promises which he has made. Before a sentence is passed, obviously the court can ask for a social inquiry report. I should think that every court would do that, but if they did not do it hen an Amendment could be added making it obligatory that they should. But this still leaves the man to stand on his feet and prove himself during the period of deferment.
§ LORD LEATHERLAND
I have listened with care to both sides of this argument and I feel inclined to come down on the side of my noble friend Lord Wells-Pestell. I am not actively engaged at the moment in administering the law, but for 26 years I was a justice of the peace and for the major portion of that time I had the honour of presiding over a magistrates' court. The speeches which have been made so far in support of my noble friend's Amendment have rather been from the angle that it is desirable for authority to have some check upon the man during the period before he finally comes before the court for sentence. I am approaching it from a different point of view. I am approaching it from the point of view that this man—troubled, confused, as he may be—really requires to have a friend to whom he can turn ; and I feel that if he knew that the probation officer was standing by at his side and that if he found himself in any difficulties he could go to that probation officer, it would be all for the better in the long run.
964 Now we have all heard in court the defendant—a youngster, perhaps—who says, " I have got this job to go to on Monday ". But that job may not materialise. The prospective employer may change his mind ; he may have heard something during the court hearing which prompts him to say to himself, " Perhaps it would be as well not to engage this man after all ". We have heard the case of the man who says to the court, " I have some respectable lodgings to go to ". It may well be that the prospective landlady will change her mind. There are all kinds of circumstances like that where a man may find himself in difficulty ; where he may honestly have said to the court, " I have a job, I have lodgings, I have other facilities which will enable me to lead an honest and decent life ", but where those circumstances may change and the poor youngster finds he has no one to whom he ear, turn.
If this Amendment moved by my noble friend were mandatory in its terms, I might modify the attitude which I have been taking, but the Amendment quite precisely says that this course shall be taken with the offender's consent. Therefore it is up to the offender to say to the court, " I should like to have a responsible friend to whom I can turn if I find myself in difficulties, if I find that some of my hopes are being dashed ". Therefore, I feel inclined, on balance—although I admit there are arguments both ways—viewing it from the aspect that it is desirable that such a young man should have somebody to whom he can turn, to support my noble friend's Amendment.
§ 12.4 p.m.
VISCOUNT COLVILLE OF CULROSS
The speech of the noble Lord, Lord Leatherland, I think very much underlines the point made by the noble and learned Lord, Lord Gardiner, that we want a good deal of non-statutory guidance to magistrates on this Bill. It is very much envisaged that this will be done. It is no use passing experimental legislation setting out a number of new and untried varieties of powers for the courts without giving them substantial guidance on how we think they may best use them. There will be a number of circulars which will follow this Bill. 965 It may be that they will all be put together or it may be that they will be sent out on separate subjects. I do not know how far this matter has got in the Department and whether I shall get my head bitten off when I get back there, but I think it is time we looked at all the circulars on non-custodial powers of the courts to see whether, if necessary, we can bring them up to date, put them together and have them all in an assimilable form, or in a series, at a time which coincides with the passing of this Bill and the specific guidance on it. I may find that this is impossible, but I have started it off and inquiries are being made to see whether we can do it. Certainly the whole question of deferred sentences is something which would be in the circular which accompanies this Bill, anyway.
But let me see whether I can make a little more clear what we are after. This subject was discussed at some length by a number of noble Lords and noble Baronesses on the Second Reading debate. There must, I think, really be seen to be a distinction between the case in which a court would wish to defer sentence under this clause and the case in which a court thinks, " This is a muddled, confused young man who needs a friend to turn to ". If it is the latter case, I said before (and I am not in any way reluctant to say it again) that I do not think that deferment of sentence is the answer. In a case of that sort a perfectly ordinary traditional probation order should be made on that person, and that would give him a friend to turn to in his need. It may well be that some of his troubles are a job or somewhere to live or something else of that sort ; but if he is the muddled character, the person who needs support, supervision, assistance, friendship and all the other qualities of the Probation Service, then the court should make a probation order and not just defer sentence.
§ LORD LEATHERLAND
I wonder whether I might interrupt the noble Viscount there, because he is impinging upon the point I made. At the hearing in the court the young man may not be muddled, he may not be troubled. He may feel, "I have a job to go to, I have lodgings to go to." But three days later 966 he finds that he has not got a job, it has been cancelled ; that the lodgings are not available, the offer has been withdrawn. Then he becomes muddled ; and, as things stand at the moment, there he is floating about in a vacuum with nobody to whom he can turn.
VISCOUNT COLVILLE OF CULROSS
In those circumstances, on the first occasion the court would probably not think of imposing a supervision order, even if they had power to, because at that stage he is confident, he thinks he has got his job, he thinks he has got his lodgings ; and at the time he tells the court that, they say, " That's fine ; we shall not need to trouble the Probation Service with him. There is an infinite variety, in practice, of what is going to happen, as I see it. Suppose the man says, " Next Monday I am going to move to brand new lodgings ; I am going to take up a job in a factory and the pay is so-and-so ; I have this all laid on ". The magistrates' court is not going to defer sentence for six months in those circumstances. They can defer it until the following Tuesday or Wednesday, or something of that sort. They are not tied to six months: they have any time between the next day and six months for which they can defer sentence, and I have no doubt that they will tailor the deferment to take account of the promises which the man says he will fulfil. I hope that this is plain, because we want flexibility in this matter. We do not want sentence on everybody deferred for six months, because in some cases it will be quite unsuitable—a few days will do.
There is meant to be this distinction. Where a person, in the view of the court does not need to go on probation, the noble Lord, Lord Wells-Pestell, is quite right: there have been difficulties about how to put back the sentencing power, particularly if reparation is involved, because the courts doing this got a nasty shock from the Court of Criminal Appeal in a case called West, when they were told that they had no power to do it at all. The noble Lord is quite right that this practice has dropped out since that time on the grounds that it was illegal, and that is why we have had to put the clause in the Bill in order to restore the situation. These are meant to meet specific circumstances, where a promise has been made to the court that there will be a definite change on account of something that is 967 going to happen. The man says, " Look, if you give me a chance to go and take this job ", or whatever it is, " I can promise you that it will make the whole difference to my way of life. It will enable me to keep out of trouble in the future and to be a good and industrious citizen ". " Very well," says the court, "if you are as confident as that, then we will defer sentence, and let us see how you get on ". In those circumstances, that is not a case for a supervision order. But I want to go on. It is not quite as clear cut as that, because these things never are. There is the point about work-load that the noble Lord, Lord Hamilton of Dalzell, mentioned, and I think this is a serious point. One does not want to burden the Probation Service with more work than at this time they can properly undertake.
Various noble Lords have mentioned, rightly, that the court will want to know, when the man comes back at the end of the period of deferment, whether or not he has done what he promised to do. Although I do not see any necessity to write this into the Bill because I do not think magistrates are so foolish as to need this laid on them statutorily, one would expect them to have some sort of report before them. The noble and learned Lord, Lord Gardiner, may be right that it will come from the solicitor if the defendant is legally aided or even if he is paying for his defence privately. There will be reliable and trustworthy information from the solicitor, with his duty to tell the court what has happened. Probably, and much more likely, one would have some sort of report from the Probation and After-care Service, but perhaps not specifically a full social inquiry report going into all the details which are usually put in those very helpful reports because it may not be necessary. All one needs is verification of the fact that the man has carried out his promise. That sort of work-load would be nothing like so heavy on the Probation and After-care Service as a full blown supervision order from the period of deferment. We would expect to find that courts were asking for this sort of report before finally passing sentence at the end of deferment. For the reasons that various noble Lords have given they would have to do so.
Points of the kind that noble Lords have raised in this debate are rarely go- 968 ing to be met with in practice, but we do not wish to confuse a deferred sentence with a case which needs supervision. As we are experimenting we want to try to get this clear at the outset and not put in a provision which blurs the distinction so that the courts, trying to use this power, find that they are not quite sure what is the difference between deferred sentence and a probation order, and discover that Parliament has not assisted them by allowing them to make a supervision order as well.
There are one or two technical points about the clause which I will not go into, but there is one point which is not altogether clear and is rather more serious. If the court deferred sentence for six months and at the same time a supervision order were imposed, the order would be likely to contain conditions. What happens if the man breaches those conditions before the time at which the court said he was to come back for consideration of the deferred sentence? There is nothing in the Amendment to cover that point and there is real difficulty in working out how one could fit it in. One would have to have some initiative with the supervising officer to bring this back to the court at an early stage.
I am not certain how this fits in with the original decision of the court to defer sentence for a given time, which they could very easily have tailored specifically to the fulfilment of promises which the man had made and to the timetable for those promises. I do not say that this is an overwhelming problem ; perhaps one could get a solution to it. Nevertheless, it is an additional practical problem. Otherwise the supervising officer would be given no control over the situation. He would have to say, " You have broken all the conditions but I cannot get you gack to the court till the 25th of next month, which is the time the court has set for considering the sentence on deferment."
Having tried to explain this, I hope it will be seen that I am not unsympathetic to the point that the noble Lord, Lord Wells-Pestell, and others who have supported the Amendment have been making and that the practical side which really underlay their concern can be covered adequately. On the other hand, there have been some powerful speeches. The noble Lord, Lord Donaldson of 969 Kingsbridge, and the noble Baroness, Lady Wootton of Abinger, assisted me in trying to make this distinction, and I am grateful to them. I hope the Committee will agree that we ought to leave the Bill as it is and not confuse matters in this way. I do not suggest for a moment that the noble Lord, Lord Wells-Pestell, was trying to confuse matters but I should like to keep the distinction that I have been trying to explain and thus allow the courts to see that the situation is clearly distinguished, with an undertaking to give them advice in a circular letter when the Bill is passed.
§ LORD DONALDSON OF KINGS-BRIDGE
Perhaps the noble Lord would clear up one point concerning the order of events. The man gives an undertaking and his sentence is deferred until, say, March 25 next. He comes back on March 25 and is asked whether he has done what he undertook to do. He is asked what proof he has, and says that he never thought of getting any proof. Is the sentence then deferred while a social report is made? The machinery seems to me obscure. The situation ought to be discussed either now or on the Question, That the clause stand part of the Bill ; perhaps it would be better to leave it until that Question is put.
VISCOUNT COLVILLE OF CULROSS
I think I can answer that query now. I do not think the court would defer it again, but they could adjourn the case for a few days while verification was obtained. I should think that in some cases the court, in deferring the sentence, would say that since the man was coming back on March 25 it would be no use his saying that he had done the job, or got married, or something. It could be made clear that verification would be needed. As a matter of fact, it would probably be best to have an informal word with his solicitor who could bring the necessary verification or documentation. If not, the necessary power would exist, but I do not think the case would be deferred again.
§ BARONESS WOOTTON OF ABINGER
Is what the noble Viscount has just said consistent with subsection (2) of Clause 21, which says that the deferment 970 shall not be further deferred? We are going to run into great difficulties.
VISCOUNT COLVILLE OF CULROSS
I had that subsection in mind. That is why I said I did not think there would be a further deferment. But there is a difference between a deferment and an adjournment. A deferment is a technical and formal thing under this clause. In the end there would still be power to adjourn for a few days.
§ LORD CHORLEY
In one case it is just a question of adjourning the court ; in the other of deferring sentence.
§ LORD WELLS-PESTELL
I am grateful to the noble Viscount. I see that the second part of my Amendment presents difficulties. I am in favour of encouraging people to stand on their own feet but those of us who have worked at both ends know that the chap in the cell is very different from the chap who comes into the dock. When he comes into the dock he will promise anything in order to get the sympathy and understanding of the court ; sometimes he will promise the impossible. I merely want somebody who can help him to realise the things he says to the court. This may be impossible for the reasons the noble Viscount has given. The noble Lord, Lord Donaldson, said that if this is a case where help is needed, why not make it a probation order. A lot of these cases can be dealt with in periods of less than six months. I think I am right—perhaps the noble Viscount will put me right if I am not—when I say that one cannot make a probation order for a period under one year. So it could not apply in this case. But having regard to the difficulty which the noble Viscount always puts me in when he says he will see that appropriate advice, rather than instruction, is sent to magistrates and courts when a Bill of this kind finds its way on to the Statute Book, and bearing in mind the matters which have been raised, not least by my noble and learned friend on the Front Bench, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 21 agreed to.971
§ 12.20 p.m.
§ LORD DIGBY moved Amendment No. 24:
§ After Clause 21 insert the following new clause:
§ Attendance at an attendance centre
§ " .…(1) Where the Crown Court has power, or would but for the statutory restrictions upon the imprisonment of young offenders have power, to impose imprisonment on a person who is not less than seventeen but under 21 years of age, the court may, if it has been notified by the Secretary of State that an attendance centre is available for the reception from that court of a person of his class or description, order him to attend at such a centre, to be specified in the order, for such number of hours as may be so specified:
§ Provided that no such order shall be made in the case of a person who have been previously sentenced to imprisonment, Borstal training or detention in a detention centre, or has been ordered to be sent to an approved school.
§ (2) In relation to such an order the provisions of subsections (2), (3), (4), (5), (7) and (8) of section 19 of the Criminal Justice Act 1948 shall have effect as if the order had been an order made under that section, provided that (a) in the said subsection (4) there shall be substituted for the reference to the clerk to the justices a reference to the clerk of the court and (b) in the said subsection (7) there shall be substituted for the references to a justice references to the court."
The noble Lord said: Although this Amendment is a complete new clause, its effect is quite simple. It is to give the Crown Court power to make an attendance centre order on persons between the ages of 17 and 21. This is a power that the lower courts already have, but a Crown Court does not. My object is to implement a recommendation by a Working Party of London branches of the Magistrates' Association under the chairmanship of Mr. Michael Wolff, which investigated the working of senior attendance centres. In their proposals they stated:
In practice, only magistrates' courts make attendance centre orders, though higher courts can do so on appeal or under section 28 of the Magistrates' Courts Act 1952 or under section 56 of the Criminal Justice Act 1967. Since this limits the powers of sentence of the High Court in a most unusual way, we propose that this anomaly be done away with.
This view is also expressed and supported by former stipendiary magistrates, now sitting as judges in the Crown Courts, who find that their powers are restricted.
§ I note that the Government have accepted the recommendation of the 972 noble Baroness, Lady Wootton of Abinger, and her sub-committee, that the question of setting up further attendance centres shall be deferred until the proposed scheme of community service has been tested. I can understand this, but I regret it. I think it is significant that both bodies of magistrates who have had direct experience of these senior attendance centres, those in Manchester and in London, are recommending extending the operation of attendance centres. As I say, I understand the Government's reason for not doing this at the moment. However, my Amendment does not involve any extension of the provisions of these centres, but will enable better use to be made of those that already exist.
§ Under this Bill, the Crown Court will have power to make community service orders, and it would seem illogical to deny them the right to make attendance centre orders. I am enthusiastic about the concept of community service, but I have no illusions about the practical difficulties that will be encountered. Even if these difficulties are overcome, it will be years before such a service can be applied on a large scale, and during those years I feel it would be a tragedy not to make full use of the existing attendance centres.
§ In drafting my new clause I followed the wording of Section 19 of the Criminal Justice Act 1948, but where that section refers to a " court of summary jurisdiction " I have substituted " the Crown Court ". I think the wording makes my intention clear. If the Government were prepared to accept the intention, they may wish to table an Amendment in their own words at a later stage, in which case of course I should be most grateful and would take pleasure in asking leave to withdraw the Amendment. I beg to move.
I rise to support this Amendment, because I feel that attendance centres have already been of considerable value. The fact is that there are only two at the present time to cope with the situation. I have some kind of personal interest in the matter, because one of the persons who served on this committee was my wife, with whom I have discussed this matter. It seems to me that the purpose of these centres is of considerable value in our set-up to try to 973 retrieve people in regard to any wrong ideas which they may have had hitherto about criminal offences. The attendance centre proves, for example, an effective method of dealing with minor hooliganism. It provides an opportunity whereby people can be detained at times when they would want to exercise the kind of action which has brought them into the position in which they find themselves. It provides the opportunity for their minds to be directed from their ordinary pursuits by having physical training, and also for their vocations to be affected in a suitable way by such training as they can get there.
I am not deprecating the idea that alternative methods can, and should, be used. I agree with the pont of view that is expressed, that opportunity should be given to people who come within the kind of treatment that is suggested to use their time in public service, and by helping private people, as happens in some of the club movements that we have in the country. But there are some people who are not suited to that kind of work, and who, if they were put to it, might do more damage than they have done before, whereas these centres about which the noble Lord has spoken have proved to be effective. The cost, so far as these centres are concerned, is very small compared with any other method of dealing with offenders. I know of nobody who has said that they are not of use. If they have this improved value, why should we not continue to use them unless and until we find an alternative which makes them unnecessary?
Consider the absurd position from the point of view of the law as it stands. A magistrates' court can use this particular remedy; and a person who appeals against a magistrate's decision may be ordered by the Crown Court to attend a training centre. Among the offences for which the Crown Court may use these penalties are those for which sometimes a heavy penalty can be imposed. What is left? There is left the fact that for certain offences a person who comes before the magistrates' court—it may be for a trivial offence, like stealing a bottle of milk—can elect to be tried by the Crown Court instead of the magistrates' court. The man or woman who comes before the Crown Court cannot be sent to a detention centre.
VISCOUNT COLVILLE OF CULROSS
Does the noble Lord mean an attendance centre? He said " a detention centre."
I am talking about the centres to which the noble Lord, Digby, referred. It was a slip of the noble Lord's tongue. He did say " detention centres ", and not " attendance centres ". The point is that these people can be sent there. There is left that small section which cannot be dealt with in this way. I think it is an anomaly which should be rectified. I do not know what the Government are going to say about this yet. Before they reject the Amendment I think they should think again because this is an important matter.
§ 12.30 p.m.
VISCOUNT COLVILLE OF CULROSS
I entirely agree that this is an anomaly, but whether or not this is the moment to set it right or to deal with it in the way in which my noble friend Lord Digby has suggested, with the support of the noble Lord, Lord Janner, I am not so sure. Of course I knew about the Working Party and what they have said. What is totally novel to me is that judges of the Crown Court have joined in asking for this power. I have had absolutely no information from any source at all that judges of the Crown Court wanted this power. I should be very much obliged if my noble friend could give me rather more information about this, because it really is new material.
May I say just a few words about this matter to the House? I am afraid that there is at the moment no question of extending the number of attendance centres. We have accepted what the noble Baroness put forward in her Report. If she wants a better " shorthand " than the one she used, I would recommend the use of the words " Wootton Report ", because, with all due respect to her modesty, it is shorter than the phrase she used. In that Report the noble Baroness and her colleagues suggested that for the moment an expansion in the number of attendance centres—of course we are talking here about senior attendance centres—should await the trial of the community service order. The Government have accepted this. 975 They announced it some time ago and they are still to some extent—does the noble Lord wish to intervene?
If I may. I am sorry to interrupt the noble Viscount, but I rather gathered that he was talking about detention centres: I had in mind attendance centres.
VISCOUNT COLVILLE OF CULROSS
I have perhaps fallen into the same trap: if I said " detention centres " I am very sorry. We are talking about attendance centres; and either it is an epidemic or a Freudian slip, but at any rate I am very grateful to the noble Lord. I think the score is now 15-all on this.
We have decided that attendance centres should not be increased in number. That does not mean to say that there is any question of closing down or discouraging the use of the two that there are (one in Manchester and one in Greenwich) but for the moment we are not going to extend the number. That in practice means that only a very limited number of Crown Courts—possibly one or two in London and one in the North—would benefit from this new clause. Until I heard what my noble friend Lord Digby had to say, I did not think that this was particularly significant, even if it was anomalous ; because as the noble Lord, Lord Janner, pointed out, the Crown Court already has power to make attendance centre orders in the cases referred to under Sections 28 and 29 of the Magistrates' Courts Act. But then we were also told by my noble friend that the powers were never used. If that is so, those are the cases where presumably a more serious penalty, at any rate in one of those sections, is envisaged by the magistrates than they are able to give. That is why they send a man to the Crown Court. So obviously this is not in their view a case for an attendance centre. That is the reason why the Crown Court does not use that power at the moment in those cases. Where a man elects to go for trial it may be that in theory the case is a very minor one—stealing a bottle of milk or minor hooliganism, for instance. It may be some quirk on his part, but then equally we have discovered that, so far as can be seen, in those circumstances the Crown Court does not make attendance 976 centre orders. If that is so, one would assume that they act in this way because they do not think that the attendance centres are suitable.
In the serious cases which have to be tried by the Crown Court but do not fall into either of these categories, if they do not use attendance centre orders for the less serious or minor things, what are they doing trying little cases of this sort for which perhaps an attendance centre order would be suitable? They should be trying much more serious cases. If they do not use their powers to try the more minor cases, or the more serious of the minor ones, I do not think that in practice they would be likely to want this—but my noble friend will probably tell me something about the desires of the Crown Court.
I would therefore suggest to the Committee that this is not really the moment at which to make this change because, as I have said, it will affect only two areas and also we are not proposing to extend geographically the area as a result of which the Crown Court in general would benefit. What we really want to do is to gauge the usefulness of attendance centres side by side with the community service orders ; and until we have seen how effective—and we hope they will be very effective—these community service orders can be we shall not make a final decision whether to extend, to keep the same or to restrict the use of the attendance centres that we already have. I hope that the Committee will feel that in these circumstances it would not be right to insert this provision into the Bill.
With respect to the noble Viscount, I do not think he has put forward any argument which should induce the Committee to accept his point of view. First of all, as we have heard, stipendiary magistrates themselves have endorsed the view of the Committee which sat for quite a long time investigating the whole position. Therefore his statement—one which rather surprises me and one which I hope he will reconsider—that the Government have definitely decided not to have any more attendance centres is rather a strong allegation against the training centres' usefulness and efficiency, both of which have been proved. If the noble Viscount had said, 977 "We are not prepared, for a short period "—
That is all right : I will accept the fact. Therefore the courts should be placed in a position which would enable them to utilise this service—I am talking, of course, of the Crown Courts—in the cases which have been referred to. I am not aware of whether or not they have used them before, but this is an absurd anomaly, and if it is found later on that the alternative methods are not as effective as the use of the attendance centres it would mean that if the law stands as it is at present a new Bill would have to be brought forward to carry out what we are now suggesting ought to be done. What it would mean in fact is that you have an effective machinery ; you have something useful. The Crown Courts are not in certain circumstances able to utilise that service ; other services, of a very valuable nature but not yet tested, are going to be brought into effect. Instead of having to wait for the new Bill, if the Government feel that within a period (either a short period or a longer one) that the service is effective or more effective, or effective for certain purposes for which the other services cannot provide, why not take this opportunity of clearing away an anomaly? Nobody can deny that it is an anomaly. If a person who is charged with stealing a bottle of milk decides that he does not like the magistrates' court but wants a trial in a higher court, he can decide to go to that court. But in a case like this the court does not have the opportunity of sending him to an attendance centre. I hope that the noble Viscount will reconsider the position and see the sense of accepting this Amendment. I think that further attendance centres should be opened but apparently the noble Viscount is not of that opinion at the present time. Possibly he will come to that opinion at a later stage. This anomaly should be removed so that if he decides that this valuable service should be extended, it will be available for the other purposes.
§ LORD CHORLEY
I was not impressed by the stonewalling of the noble 978 Viscount. There is a great deal in what my noble friend Lord Janner has said. If, eventually, we find that we want this facility we may have to wait for years before we get it. We do not have a Bill of this kind very often. If we found that this facility would be valuable after the community centre business had been cleared up we might have to wait for a number of years for the facility. Why not put this in the Bill now? The noble Viscount has said that the facilities are not used but this is because the cases sent to Crown Courts by magistrates are not those in which this facility is wanted. Nor am I impressed by the fact that there are only the two courts available. That applies to magistrates' courts which can already do this. You may say, " We will take it away because it is of no use to most magistrates' courts up and down the country ". But I should have thought there was every reason for putting the two types of courts on the same footing and having the facility available so that it can be used when it is required.
§ 12.43 p.m.
VISCOUNT COLVILLE OF CULROSS
I wonder if my noble friend would allow me to intervene, and perhaps then there will be no need for him to make a final speech on this Amendment. I ought to respond to the noble Lords, Lord Janner and Lord Chorley, and this also gives me an opportunity to correct a mistake. I said that if the man elected to go for trial with regard to the milk bottle case the Crown Courts would have power to send him to an attendance centre. This was wrong: it is only on appeal or where the case is committed for sentence.
I am sorry that the noble Lord, Lord Chorley, does not like my stonewalling : I was never very good at cricket, but I am doing my best. The only point on which I am in the least repentant is with regard to the point made by my noble friend, that the Crown Court judges want the power. I have already explained—and I hope that the noble Lord will accept this from me—that the decision not to have more senior attendance centres is going to run while we see how community service works. It is not a final decision, one way or the other ; and I made this perfectly clear. I hope 979 that the noble Lord will accept this. At the moment the resources involved—and there is a limit to the amount of resources we can use on the penal system—are not going into building more attendance centres ; they are going into the other matters that we have in the Bill. That does not mean to say that we are going to run down the centres at Manchester or Greenwich.
With regard to another legislative opportunity, we are talking about the age group of between 17 to 21 years. That is precisely the age group winch the Young Offenders' Committee of the Advisory Council are at the moment considering. We shall undoubtedly need legislation, although I do not know what the Council are going to recommend. We shall certainly have an opportunity then and there will be no difficulty in dealing with this matter. I am not repentant about any of that, and I deny that there will be a shortage of legislative opportunities for a great many years to come. We shall have to deal with the report of the Advisory Council, and it is right bang on the nail of this particular age group.
I should like my noble friend to tell me who are the Crown Court judges with whom he has been conversing who want these powers. If the judges find that in the exercising of their sentencing policy they are being fettered by lack of powers, of course I want to know about it ; and I want to know about the cases where they find themselves hampered in that way. The strange thing is that it is not until to-day that any one of them, so far as I know, has ever complained. What I ought to do is ask my noble friend to give me, as a matter of urgency, the details of these complaints and then to consult with Crown Court judges to see whether what my noble friends say is in fact a universal feeling of complaint. If that is so, then we may have to think about the situation again. But before this morning I thought that this was not only a piece of stonewalling but a fairly sound defensive innings with considerable batting power behind it.
The noble Viscount cannot get away with that. I am talking from the magistrates' point of view ; the magistrates are very experienced people, particularly those who were on this par- 980 ticular working party of London magistrates. Magistrates are sitting with the judges in the Crown Courts and they are participating in decisions of the Crown Courts. They are not entitled to be regarded as dummies when sitting with a judge in a Crown Court. It is the view of experienced magistrates that I am putting before your Lordships' Committee. They will be judges, I assume, of an equal standing ; otherwise the whole thing is nonsense. I hope that they will be consulted, because of their experience and knowledge and because it has been decided that they should be judges in these courts. And I hope the Crown Court judges will consult them on certain matters. The position as it is at present in the Bill is a silly anomaly. A magistrate may decide in the future that it is advisable that a person should be sent to a training centre, and, with the greatest respect, I think that this matter should be reconsidered by the noble Viscount. To wait for another Act—
VISCOUNT COLVILLE OF CULROSS
I wonder if the noble Lord will allow me to intervene. With respect, I do not want this debate to go on for too long, but I have said that I should like to consult the Crown Court judges. I do not want in any way to be disparaging of the magistrates. Of course they are most important ; they sit and participate in some of the Crown Court's proceedings. I have said that I have never previously heard from a Crown Court judge or recorder who wanted these powers. My noble friend has some information which he can give to me. He referred to stipendiary magistrates who sit as Crown Court judges. I want to go and find out from the Crown Court judges whether they are in fact feeling hampered. I should have thought that this was something which was perfectly reasonable to suggest to the noble Lord, Lord Janner, and to my noble friend.
I am sorry to keep interrupting the noble Viscount in this way. But if he is now saying that he will consider this matter between now and the Report stage or Third Reading, I shall be very happy. In that event, one may not proceed to try to get a Division at this stage on this Amendment. But if that is not the position, if it is intended to consult with the judges only after this 981 Bill has become an Act, then that is a different matter.
VISCOUNT COLVILLE OF CULROSS
I must make this plain ; I am sorry if I have been obscure. What I said was that I should like my noble friend to tell me urgently, to-day, which Crown Court judges say that they are hampered by the lack of this power. I should not ask him to tell me this urgently to-day unless I meant to do something about it. I also said to the noble Lord that I would inquire whether there were any other Crown Court judges who held this view. What more can I do? I am trying to get information during the currency of this Bill so that we shall have an opportunity, if it is thought right, to correct this anomaly. I cannot understand why the noble Lord is being so unkind to me.
I cannot give the noble Viscount chapter and verse as to these Crown Court judges other than to say they will be the magistrates who will be sitting as judges in the Crown Court.
§ LORD GARDINER
While considering that matter there is an additional point which the noble Viscount might also look at. I thought that it would have been mentioned ; as it has not been, I mention it only for his consideration. The Wootton Committee were in favour of having an attendance centre for traffic offenders.
§ LORD GARDINER
There is such an Amendment ; it is Amendment No. 32. They then point out in paragraph 107 of their report that this power to send traffic offenders to attendance centres ought to be available in the higher courts. That also ought to be taken into account.
§ LORD DIGBY
I am most grateful for the support I have had from noble Lords. Perhaps I take a slightly different view from some of them in that I accept at this stage that no extension should be made because we are starting a very important new experiment and all the resources we have are required for that experiment. I welcome very much what the noble Viscount has said ; that, first of all, there is no question of closing down the existing centres. This is most important. We do not know what will be the result of the experiments on which we 982 are embarking in this Bill. That these attendance centres should remain as a basis for expansion, if it seems necessary at a later date, I consider most valuable. I am grateful to the noble Viscount for that.
I am also most grateful that the noble Viscount has said that he will consider further my submissions when I can produce to him support from judges of the Crown Court. I am sorry that I did not pass that on to him before. I shall certainly do so ; between now and Report stage I shall be pleased to provide him with this evidence and also, I think, with support from the magistrates in Manchester. As he has offered to look at this before the next stage I should like leave of the Committee to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 12.54 p.m.
§ BARONESS BIRK moved Amendment No. 25 :
§ After Clause 21 insert the following new Clause:
§ Suspended execution orders
§ " .—(1) Without prejudice to the power of any court to suspend the execution of any sentence upon service of a notice of appeal, any court which has passed a sentence may at or after the passing of sentence make an order (in this section referred to as a " suspended execution order ") suspending the execution of the sentence for a period or for successive periods not exceeding three months and any such court may at any time vary or terminate a suspended execution order.
§ (2) In any calculation for any purpose relating to the length of any sentence no account shall be taken of any period during which a suspended execution order is effective."
§ The noble Baroness said: The object of this Amendment is to give the court discretion to suspend a sentence of imprisonment where it feels this is necessary in the interests of the family of the person or persons convicted or to enable the convicted person to make arrangements which, if they were not made, would mean that on release from prison his affairs would be in such disorder that rehabilitation to normal life would be affected gravely. One example which I should like to give has taken place in another country. It is where husband and wife were sentenced to prison and where immediate imprisonment of both parents would have been detrimental to the children. In the recent case concerning Clifford Irvine and his wife in New York 983 as a result of the Howard Hughes fraud case the execution of the husband's sentence has been suspended until his wife has served her two months' sentence. In addition, she was given a few days to make arrangements for the family.
§ Other circumstances where it would seem that the power could be used at the court's discretion would be, for instance, where a woman was sent to prison and would not immediately have time to make arrangements for her family. Here, if a woman is convicted and sent down immediately the children may suffer terribly and unduly. There may be the case where a man is looking after children by himself or where he has a dependant—for example, an elderly mother. Once again he may disappear, as it were, from the court to prison. Although help may be provided by the Probation Service or other social workers to make arrangements, in certain cases it could be imperative that the man himself should be able either to make arrangements or to reassure the person concerned.
§ There could be cases where a suspension of the sentence for a few days or even weeks would enable the convicted person to make business arrangements regarding his shop, practice or barrow so that his future income would not be jeopardised when he came out of prison. Probably we all agree that where the family remains intact there is a greater incentive for the offender to go straight when he comes out of prison. Where he has not lost his complete source of income this means that the family does not suffer so much and that there is something for him to return to. This can affect the offender's behaviour and attitude of mind when he is serving a sentence. I feel strongly that anything which adds to embitterment during the period of sentence must affect rehabilitation afterwards.
§ At present the arrangements made by outside sources are erratic. In some areas probation officers take immense care, and are able to do so, to try to see that the family is as well protected as possible. Reception into prisons varies greatly. I cannot find any consistency so that a man who arrives in prison is always as a matter of policy asked whether there are any problems or anything that can be done for him. Even so, this does not 984 cover the case of a man being able to make the arrangements himself. Imprisonment means loss of liberty, which is a punishment in itself. To add additional hardship is not easily defended. It may be argued that there may be two cases which on the surface would appear similar and that the court might think that it could give its discretion to the exercise of this power in one case but not in the other. I would submit that there is no necessity for there to be equality of treatment in this connection. As the circumstances of each case would be different they would have to be looked into.
§ Subsection (2) of my clause makes it clear that this period shall not be taken into account as part of the term of imprisonment. It would mean that anyone who did not have a genuine cause to be considered would obviously be far better off in getting the term of imprisonment over and done with. There would be no advantage in that case for it to be delayed. The researches I have managed to undertake so far into practice in other countries would appear to show that in America, when implementation of sentence is deferred, this is usually done in the absence of a statutory provision. Sometimes there is one and sometimes there is not. In most States it is the result of judicial discretion. It is evidently usual for it to be employed in the United States.
§ I have also found evidence of the same practice in France. In Sweden, the situation is that provincial governors have power to postpone for up to six months the time at which a sentence begins in respect of most minor offences. This is done on such grounds as pregnancy, ill health or additional personal hardship. In Denmark, the judicial authorities have no power to delay the execution of a sentence but the Minister of Justice may, in accordance with paragraph 1001 of the Administration of Justice Act, defer the start of a sentence when he considers that its immediate imposition would have particularly serious consequences for the prisoner or for the public. I would imagine that the latter refers to someone in a position where it is essential to make replacement arrangements in the public interest. As we do not have a Ministry of Justice, I suggest that what I propose would fit much better into our system of law because the courts would then have 985 this discretion. Legislation in Denmark gives the Minister there power to make orders enabling local heads of police in similar circumstances to postpone the start of prison sentences for up to six months and there is provision for an appeal against police authorities who refuse to postpone sentences in this way. As I say, because we do not have a Ministry of Justice it would seem to be in keeping with our system of law for this discretion to exist with the courts and be used in exceptional circumstances.
§ In debating other Amendments we have heard of the need for the courts still to be able to exercise discretion. I suggest that we are here discussing an area where this discretion would not be used to any great extent but where it would be useful to have this reform so that the courts could if necessary act in this way. Conditions must, of course, be laid down and I imagine that they would be similar to those applying to bail. Indeed, the courts would probably insist on daily or even twice daily reporting to the police and the surrender of passports.
§ The question of people absconding does not present a serious danger. One need only consider the number of people who at present abscond when placed on bail. There is even less likelihood of that happening when people have roots in the sense that the person concerned has a family or business, so giving him or her very little incentive to abscond. I understand that at present there are no powers to take the action which I propose. There must be many magistrates who, like myself, have thought when someone before the court has suddenly disappeared from the dock to go below, " If only it were possible for that person to be given a little time in which to make arrangements for his or her family or business!" This thought inevitably goes through one's mind when a husband and wife appear before the court together. One immediately sees the tragic results, without having them spelt out, of the couple going to prison.
§ If we do not make the sort of provision I propose and a person is sent to prison knowing that the whole of his or her family life is likely to come to an end, that whatever business interests may exist will not be there at the end of the prison term and that there will be no source of income during imprison- 986 ment, the offender is likely to find prison the introduction to a criminal life, and the chance of recividism will become that much greater. In other words, my proposal would help to diminish the incentive to return to crime when the prisoner returns to civilian life. From a practical and economic point of view, what I propose would help to reduce the prison population by persuading the offender not to have recourse to crime.
§ The Minister was kind enough yesterday to inform me that as at present drafted my Amendment would go too far because it would cover all sentencing. I accept that criticism but, even so, I am not sure that it is completely valid. If one considers the alternatives to a custodial sentence—for example, fines—then we already have power to delay the payment of fines by, say, instalment payments or by allowing a period before the fine need be paid. It is obviously better for the person concerned to be put on probation right away. But I am referring only to custodial detention and I again stress that it would be at the discretion of the court.
§ From the discussions that are gong on and the concern that has been expressed about the number of people remanded in custody rather than placed on bail before conviction, I do not think there is any indication that the courts would abuse this power. Nor do I feel that this concept is particularly complicated, for it seems to be in line with many of the humane and experimental principles that are included in this Bill. When dealing with an earlier Amendment the Minister referred to the use of circulars. While there may be many instances where I would rather see matters written into the Statute, it seems that in this case it would be appropriate for guidelines to be included in a circular. I beg to move.
§ LORD STOW HILL
I rise to support my noble friend, Lady Birk, in this proposal. She deployed the arguments in support so admirably that I can make my intervention brief. I do so in the presence of a number of your Lordships who can draw on a much wider, richer and more immediate experience of the matters under discussion than I can claim to possess, but I am emboldened to intervene by an observation made in 987 the course of these deliberations by my noble friend Lord Wells-Pestell who said, in effect, that the man in the cell was very different from the man in the dock.
Some years ago I had responsibilities which resulted in my spending considerable periods of time in discussions with prisoners actually in their cells in an endeavour to try to understand the human problems that they presented. If, in the course of those discussions, there was one clear impression which I derived and which has remained with me ever since, it was the desperate importance of trying to keep the family unit of a prisoner together and to prevent it from gradually coming to nothing because of his absence while in prison.
I am firmly convinced that although prisoners differ infinitely, the man who has a family outside which he has built up and to which he hopes to return when he is released suffers much more mental distress than the man who is wholly detached and has never succeeded in winning for himself any affection or loyalty from other persons. It is therefore of the greatest importance, as the noble Baroness said so movingly, that we should try to enable a prisoner, before he disappears from his family circle, perhaps for a considerable time, to make such arrangements as are possible to enable the family to continue and remain stable while he is absent from it.
My noble friend gave a number of instances which were extremely apposite. The prisoner may have built up a business ; there may be illness in the family ; still more important, there may be children and they may suddenly find that their father has disappeared ; the prisoner may wish to enlist the help of relatives or friends to cover the situation during his absence. My noble friend is envisaging a situation which is entirely different from that which your Lordships were discussing on the previous Amendment. The deferred sentence situation is entirely different from this consideration. There, one does not have in general the sort of accused my noble friend has in mind. She is concerned with a situation where the court has come to the clear conclusion that a custodial sentence is necessary and must be served. I have made some research to try to ascertain whether there is any power at present in our legislative 988 code to enable the courts in that sort of situation, after they have clearly come to a conclusion that there must be a custodial sentence, to do what my noble friend wants done—that is to say, to postpone the time when it has to begin —but I have not been able to discover any such power. I do not believe that there is any such power.
It is for those reasons that I hope that the noble Viscount will look upon this proposal sympathetically. As my noble friend has pointed out, her actual drafting would cover the situation not only where there is a custodial sentence but where there is a non-custodial sentence. Her primary purpose is to cover the case only where there is a custodial sentence and she has made it very clear. In that case, I think that this power—which, as she has said, would not be constantly exercised ; it would be rarely exercised and in an appropriate case—could do an immense amount of good. Or perhaps I should state it in the converse form, and say that it could prevent a great deal of harm. It could reduce the suffering of the prisoner and it would tend to prevent him, as she pointed out, from becoming embittered. It would make it much more likely that he could afterwards be—if the phrase is appropriate—reconciled with society and take his place in society as a useful member of it and as a friend to it instead of an enemy of it.
It is the duty of the courts to protect the public, but we should all accept that not only for that object but for general reasons of humanity a major endeavour should be made to try to bring the prisoner back as a useful citizen again to resume his place in society. I feel quite convinced that if the courts could, in appropriate places, enable the prisoner to make such arrangements as he might perfectly well be able to make to accustom those whom he has to leave for a considerable or for a shorter period of time to the idea that he is going away, to enlist such help as he can get, to make such financial or other arrangements as may be necessary, it would be doing a great deal of good. It would enable many men who find it infinitely more difficult now to accommodate themselves back in society after a prison sentence to take their place there, forget what has happened and lead a useful life 989 in future as one of the community. I hope that the noble Viscount will look sympathetically on this proposal.
§ 1.13 p.m.
§ BARONESS SUMMERSKILL
I intervene in this debate with some trepidation as I listen to all the expertise of those who have served as magistrates and in other fields in the legal world, but I would add my plea to that of my noble and learned friend who has just sat down. This seems to me the very essence of commonsense. All that is being asked is that the court should be given another option. Already apparently they have a very large number of options as to how the prisoner should be treated. This, in my opinion, is a most important option: that a man or woman who has a custodial sentence should be allowed a short time to try to put in order those affairs about which he or she will think most during the whole of their sentence.
I should have thought that the next thing society should think about after the person is in prison is whether he or she is going to be a model prisoner or not. Whether that person is or not makes all the difference, of course, to the people who work in the prisons, and it makes all the difference to the final length of the sentence that the prisoner serves. In my opinion, therefore, one of the first things with which we should concern ourselves is the peace of mind of that prisoner. He has been convicted. He is guilty and society should say "How can we, so far as we are able, try to remove some of the bitterness? Although he has been well-deserving of his sentence, how can we give him some peace of mind?" The very first thing we should think of is how this individual can settle his home affairs.
I am not only concerned with him ; I am concerned with the wife. Here is a woman who perhaps did not know that she was married to a criminal. Some women are different from others: some forgive men easily and some are not so forgiving. Whichever kind of wife he has married, it is better for him, for society and for the family that the marriage should last. I would suggest that it is very wise in these cases to let the man or woman go home to their spouse, sleep together for a few nights and explain that these things do happen. He can make his promises to behave 990 better, and so on. The promises may never come true but, nevertheless, society should give him the chance. Then I am concerned with the children. I believe that as the twig is bent so the tree inclines ; and here we will have children in a family where the mother or father is a criminal. If we just leave this man or woman to go to prison, those children may just be put in care or they may be sent to an aunt or grandmother who is sick of them. It is of essential importance to those children that we should do our very best to ensure that they have the best care. It cannot be guaranteed, but at least the effort should be made to ensure that whichever one of the parents is in prison should go home to the other in order to try to help these children. I would remind noble Lords that in these days, when we see so many boys on the streets, this is the time when an adolescent who may well be a potential criminal in consequence of the family background, should at least have an opportunity of chatting with the family and other friends in order to ensure that life might perhaps be a little better. The time to do this no doubt is when the man is facing a sentence and when perhaps he may be more approachable by his family and friends than he ever has been in the past.
§ LORD FOOT
Although in view of the way this small debate has gone up to now it does not appear that the noble Baroness, Lady Birk, is in need of any further assistance, nevertheless I should like to add a few words in warm support of this Amendment and to urge upon the noble Viscount that it would be most disappointing to very many of us if he were to reject it out of hand. It may be that the most we can hope to do to-day is to persuade him to have another look at this matter, but I hope that he will not turn us down altogether.
The only matter that has led me to intervene in this debate at all is that I have had this sorry experience, which is certainly not unique but is particular, that I have been a solicitor practising in the criminal courts for something approaching 40 years, and I have always regarded it as the duty of a person in that position not to abandon the client at the moment when he goes down from 991 the dock under a custodial sentence. One of the most dismal and unhappy duties which it falls to us to perform is to go down and see the client afterwards, and sometimes see him later in prison, and discuss his affairs with him. What has been borne in upon me, and I am sure upon anybody else who has had a like experience to this, is that there is a vast difference in the incidence of this rule that the sentence must come into effect forthwith, as between one individual and another. To some people who have few connections, possibly the more feckless people, it is a matter sometimes almost of indifference, but other people are bewildered and beset by the question: what is going to happen about this and what is going to be done about that? The tragedy to my mind here is that this extra dimension of punishment, adding to the punishment itself the fact that it will come into effect forthwith, falls particularly severely upon the responsible people, the people who have a sense of obligation to their family or to their connections and their relatives, and falls with comparative lack of severity upon the people who are indifferent and feckless and with perhaps few associations of any depth of consequence. Therefore, I would ask the noble Viscount sympathetically to consider this.
There is one other reason why I should ask him not reject it out of hand. He may be inclined to say that there has not been sufficient debate and discussion in this country on this proposal for the suspension of execution of a custodial sentence ; that it ought to be a matter for further debate, and that we can deal with the matter later on. If he were inclined to advance that argument, I would say that it seems to me that this proposal—which has, after all, been tried out in other parts of the world ; it is not something entirely novel—fits very well into this rag-bag Bill, and is relevant to one of the major purposes of this Bill, which is to get our sentencing policies right. I should have thought that if one had tried to find an Act of Parliament in which it would be appropriate to insert a clause of this kind this would be the very one for that purpose. Therefore I warmly support everything that has been said, and I hope the noble Viscount will give us some encouragement.
§ LORD DONALDSON OF KINGS-BRIDGE
I do not think there is a great deal to be added to the arguments which have been fully deployed. I would make only two points. Anybody who is concerned, as I am, with the fate of the man who has offended and been convicted and sentenced must support this Amendment, because clearly it is for the convenience of my client. But the inconsistency in our present approach to the law is revealed by the fact that there is only one good reason as I keep on saying in this House, for sending people to prison, and that is that they are dangerous, and if they are dangerous it is very difficult to leave them with 24 hours to do further damage. My own view is that most are not dangerous and should not go to prison anyway. So I have no difficulty in supporting the Amendment.
My noble friend Lady Birk, in quoting foreign sources missed the best-known one, which we all know from our constant enjoyment of Strauss's opera, Die Fledermaus, which is based on this very point. I feel in my bones that the noble Viscount is going to say this can be done, or that he will look at it again, because this is such an obvious and harmless and desirable Amendment that I expect no less than one of those alternatives.
§ 1.24 p.m.
I should like to endorse what has been said by the noble Lord, Lord Foot. Those who have had any experience of the type of case to which this Amendment refers know that one of the biggest difficulties facing a solicitor is to try to deal with a situation which comes as a blow to some people—not to all—who find themselves in the difficult and very serious situation of not being able to settle their affairs. What is asked here is not that every person should be entitled to this, but that the court which has dealt with the case and knows the circumstances relating to the case, has had advice and evidence with regard to the background of the individual concerned, should be entitled, in such cases as it thinks fit, to make an order of this description. What would happen assuming that the Amendment were accepted? A solicitor in the magistrates' court, or counsel, whoever it might be, if he was asked by his client 993 to plead that a concession of this sort should be granted, would make his plea to the magistrates explaining why the concession should be made ; and the magistrates, having the facts before them on both sides, would be able to make a decision.
What does one find in criminal cases? I am sure the noble Viscount will know from his own experience that if a person is sentenced justly he is in most cases content to serve his sentence, to accept the verdict of the court and feel satisfied that justice has been done and that in the circumstances he must suffer the penalty for the offence which he has committed. I have found, and I am sure the noble Lord, Lord Foot, has found, that even when they have been sentenced to a term of imprisonment some people—not all—do not feel that a sentence which deprives them immediately of any opportunity to settle their affairs is a just one. If this Amendment were put into force a very large number of people (I think the noble Baroness, Lady Summerskill, was quite right when she said a large number) who had been sentenced would feel that they had been justly dealt with ; that the circumstances of their families and whatever other arrangements they needed to make had been taken into consideration. They would then be able to serve their sentence without feeling the bitterness that comes to a person who considers the sentence or penalty imposed on him greater than should have been imposed in the circumstances.
I know that the noble Viscount himself feels deeply in these matters, and I am quite sure he will look at this not only from the strictly practical angle, which may appear to his mind to override any real heartfelt desire to make a person feel that he has been justly treated. I do appeal to him. At the Bar one does not get the same intimate information as one gets in a solicitor's office. It is very difficult and sad and tragic for all concerned. In cases where the court considered that a concession of this kind should be granted, it would mean that they themselves would feel that the penalty imposed on the individual, albeit a correct one, was being cushioned, as it were, by the possibility of the individual's being able to deal with his affairs. I do not think it is a great deal to ask, and I hope that the noble Viscount will see his way to accept this Amendment.
VISCOUNT COLVILLE OF CULROSS
That I am afraid I cannot do because the drafting is so wide that I do not think the Amendment as such would do ; there are such a large number of technical points that I am simply not going to trouble the Committee at present. What I will say is that I will respond to the speeches made and consider them. I have to apologise to the noble Baroness, Lady Birk : she wrote to me—I got the letter at the beginning of this week—on what the specific point of her Amendment was, and here I have to confess that neither I nor my advisers had the faintest idea, until the letter arrived, what the Amendment was about. I had been given a great amount of paper relating to possible interpretations—in fact, one of the pages covers the point, but there were a good number of others as well. There have been a large number of extremely difficult Amendments on the Bill and there is a limit to the time of the people who advise me, and I have not had an opportunity of going in depth into the noble Baroness's point. I am afraid it is inevitable at this stage in the Parliamentary Session, with the massive list of important Amendments which have been put down on this Bill, that there is a limit to what can be done.
Let me address myself to the merits of what has been said. The humanitarian arguments put forward are very powerful. The noble Lord, Lord Stow Hill, is right ; there is, so far as I know, no power in the courts to enable them to do what the noble Baroness would like. It is possible that under the prison rules a short period of parole could technically be given, but it is unlikely that it would at the beginning of the prison sentence, because that is exactly the moment when the inmate or trainee is being first introduced to training and when the authorities are up to their eyes in assessing his character. That is not the moment they would be inclined to let him out. One has to be realistic about this. I entirely agree with those who have spoken that one should, if humanly possible, do everything that can be done to allow a man to rehabilitate himself and reduce bitterness. But the noble Lord, Lord Foot, the noble Lord, Lord Janner, the noble Baroness, Lady Birk, and I expect other noble Lords, and certainly the noble Lord, Lord Stow 995 Hill, have all seen the conclusion of a criminal trial ; they have seen the person who has just been sentenced immediately afterwards. I expect, at any rate, that the noble Baroness has seen such a person the moment before he goes down.
I have little personal experience of this, but it seems to me that that is the time when the maximum strain has been imposed upon that person. The sentence, and if it is a sentence of imprisonment, will have come as a great shock. If he or she has been told that a sentence of imprisonment has been passed I am seriously in doubt whether there would be many people—there may be some and I concede this—who could be trusted at that stage to walk out of that court with their freedom for even a few days or a week and return to the prison gates after that time. Therefore I doubt whether this Amendment would have widespread application. I should not have expected that the optimism with which some noble Lords have spoken in the debate could be widely fulfilled in the large-scale release of people to go home and sort out their affairs in the way that has been suggested.
It is not really like bail. The noble Baroness cited that as an analogy, but at the stage when bail is granted—except for an appeal where it is true there is only pre-sentence bail—a man does not know whether or not he is going to get a custodial sentence, and there is every incentive, one would hope, for him to turn up so that the courts would take the best possible view of him.
But what about the man or the woman who has just been sentenced when the period of the sentence stretches before them and they are filled with gloom and despondency? What about the people who have secreted the proceeds of their crime? What about the temptation to abscond? It is all very well to talk in humanitarian terms, but there are severe practical difficulties about this proposal which have to be thought out carefully. I should like to do that, but I am afraid it means that there has to be a pretty wide range of consultation. I do not think it would be responsible for the Government to allow this Committee to think that it could be done without consulting the police and the courts, who, 996 after all, are the people who would have to pick these cases. I should like to know whether they thought they had enough information before them reliably to choose the people who would respond to this treatment. I should like to consult them and a number of other people who are involved. I would hesitate to say that I can accept this Amendment. Certainly there is going to be difficulty in doing so by the Report stage ; but there is, after all, another stage later.
I do not want to be discouraging to the noble Baroness but I hope she appreciates that this is a very serious matter and one which requires a good deal of thought, which I am giving to it. I wish to say in conclusion that I am not certain that all the Committee realise quite what is the function of the Probation and indeed the Prison Welfare Service in relation to people who have been newly received into prison. It is true that it is not the same as if the person himself were to go and sort out his business. It certainly cannot be the same as if the person himself were able to go back to his home and try to arrange for his wife and children. But at least there is the primary responsibility, and it is very much undertaken, for the Prison Welfare and Probation Services to assist at the moment immediately following sentence to try to clear up the very things to which this Amendment has been directed. I do not say that what is done is perfect, but the Committee should not think that nothing is done and that a man goes gloomily off to serve his prison sentence, with no help from anyone. This sort of work is done at the moment.
That is, I think, as far as I can go at the moment, but I will certainly consider the point. I hope that those noble Lords who have spoken will realise that it is not so simple or widespread a matter, or quite so universally a matter, as some have thought. I think the noble Baroness and others realise this. Perhaps I may be allowed to think about this proposal, and, of course, it can always be reverted to at another stage. Meanwhile, I am grateful to the noble Baroness for having introduced it to the House. I hope she will agree that we have done justice to it in the debate and will perhaps withdraw the Amendment.
§ LORD GARDINER
The noble Baroness, Lady Birk, has performed a 997 public service in making this proposal, which is a very interesting one. On the face of it there would seem to be no harm in having, in a proper case—though I imagine the cases, at all events to start with, will be few—this additional weapon in the armoury of being able to suspend execution of a sentence though not the sentence itself. One appreciates the difficulties the noble Viscount has had in dealing with all these Amendments, which are rather numerous. I am always a little spectical when I am told in effect that something which has been proved to work pretty well in a number of other countries could not possibly do here. But I am sure my noble friend will be grateful to the noble Viscount for his assurance that he will consider the matter further and there will be consultations, and I hope that on that assurance she will be prepared to withdraw her Amendment until the later stage of the Bill.
§ LORD HALE
I do not intend to prolong the debate for more than two sentences, but in view of the generous way in which the noble Viscount has responded to the Amendment and the appeal, with which I agree, from the noble Lord, Lord Gardiner, I want to ask the noble Viscount when he does consider it, to remember one aspect of the problem. I often used to say that I was a little afraid of the " metropolitan mind ", particularly in penal affairs. The noble Viscount said that immediately after the trial is not the moment to consider it. I do not agree so far as the metropolis is concerned, but in the Provinces it is virtually the only time that it can be considered. The police are there ; representations can be made ; the sentence will be passed, the magistrates or the judge are apprised of the matter.
Take the case of a lady who gets three months and is put in a van at Derby and driven to Winson Green Prison 40 miles away. She is deprived of all possibility of contact with her advisers, and has the greatest possible difficulty in making a later application of this kind. I recall a specific sentence where, on the advice of the prison governor, a lady withdrew notice of appeal against sentence because he was quite wrongly of the opinion—I am sure he acted perfectly fairly and honestly—that her sentence could be increased. And he so advised her. Another lady, charged with her, had her appeal 998 heard, and it was allowed with acclamation. Therefore, the provincial problem is a much more difficult one than is the problem in the metropolis.
The noble Viscount responded as though the terms of the Amendment were mandatory. They are not. A man who has concealed the proceeds of his crime might very well have some difficulty in succeeding in such an application, but a woman of unblemished character, convicted for the first time, and the mother of children, ought really be able to make such an application forthwith.
VISCOUNT COLVILLE or CULROSS
In order to avoid prolonging the debate, perhaps I may invite the noble Lord, Lord Hale, to read what I actually said instead of discussing what he thinks I said ; because I was on a quite different point.
§ 1.42 p.m.
§ BARONESS BIRK
May I first thank all noble Lords who have kindly supported me on this Amendment for the kind things they have said about it, and also for the substantial points they have made both in supporting it and in clarifying it? I am also very grateful to the noble Viscount for his courtesy. Being myself rather full of words, I thought that this was an economic piece of drafting. Evidently it was so economic that I have had to spend time explaining what it was about. I take his point on that, and I am grateful to him for agreeing to look at it again.
I would just make one point on what he said. I think he said (I do not want to misquote him) that there will not be many people who could be trusted to come back again. However, I think that under what I am proposing this is probably not so. If this discretion is known and becomes part of the law, as it will be if it is included in this Statute, then if counsel or anybody is going to plead and ask for this discretion to be employed, he will have to make an extremely good, careful, and detailed case to the court about the person's circumstances, his character and so on. Very full information will be before the court. I am not suggesting that the person should leave the court just unattended ; but there are all sorts of ways of making quite sure where people live, where they are ; and they could even be escorted back in the first 999 place. This seems to me to be much more a matter of administration than of legislation if the Committee accept, as it seems to me they do, not only the spirit but the execution of this particular Amendment.
I tried to cut my opening speech to the minimum, but I stressed—and I think this point has also been taken up extremely well by other speakers—that quite naturally this provision would apply only to people who the court were satisfied intended to honour this suspension. Otherwise, first of all, there would be no point in it ; and secondly, the chances of a person's being caught if he tried to abscond—and this of course would mean either a further lack of remission or an increase in punishment—would be a disincentive to do so. Because of personal reasons, because of family reasons, or because of sound work or business reasons, the offender has a tremendously high stake in honouring his side of the agreement.
I should like, before I close, to thank my noble and learned friend Lord Gardiner for what he said. As this kind of suspension order has already been tried in other countries, and is continuing, there is no reason to suppose that we could not bring it in here. I know what the noble Viscount has on his hands in the whole of this Bill, but I feel that it would be a great pity, and I should be greatly distressed, if we missed this opportunity now: because, as the noble Lord, Lord Foot, pointed out, we do not get a Criminal Justice Bill every day, every week, or even every year.
§ BARONESS BIRK
Yes ; I am sure the noble Viscount is very pleased about that. But this seems to me exactly the Bill to introduce such a scheme, because this is both a reforming and an experimental Bill, and it follows on from the whole concept of trying to get a better and more progressive look at sentencing. I hope that the noble Viscount will come back on Report stage, and perhaps we could have a word together before then. I am quite prepared to have another go at drafting a rather fuller Amendment, which perhaps explains it and also confines the execution of these orders rather 1000 more than the original Amendment does. Having said that, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 1.47 p.m.
§ On Question, Whether Clause 22 shall stand part of the Bill?
§ LORD STOW HILL
I think it perhaps right to raise for consideration one or two points that were advanced when this particular clause was discussed in another place. I do not for a moment oppose the clause, which seems to me to be a useful one. However, certain questions were asked, and I should be grateful if the noble Viscount would let the Committee have his views as to what the answers to those questions would be. Clearly the clause is designed to deal with flick knives, knuckle dusters, jemmies, and that sort of property found in the possession of a person convicted of an offence. But there is no definition of " property ", and the question was asked in another place, " How far does it extend? If one looks at the clause and at subsection (2) one sees clearly by implication that it is intended that the property is property of which you can say that it can be taken into possession. I suppose that limits it to moveable property in the ordinary sense. I make the point because the question was raised, " Well, could it apply to a house? Could it apply to a house to which the convicted person had invited his fellow wrongdoers in order to discuss the carrying out of the crime which they subsequently carried out? " That sort of question was asked. The noble Viscount may think that it is possible to say of a house that you can take possession of it ; there may conceivably be some doubt as to whether a house could be included. If so, possibly between now and the Report stage or a later stage, it would be desirable to insert some definition of what is intended by the word " property ".
It occurred to me that one might say, for example, that a joint banking account might come within the definition of " property ". I suppose you could take possession of a banking account. It would be a bit hard on the wife if the husband had drawn upon it, and she could not say for certain that the amount which he had drawn on the joint banking account, which might represent the family savings, 1001 had not been used for the purpose of facilitating the commission of a crime. I simply say that in support of the view that perhaps it would be desirable at a later stage to insert some sort of limiting Amendment in the clause. I know perfectly well that a practical answer to this is that the court does not make silly orders ; it makes orders at discretion, and it would only make orders where it is quite obvious that the property is the sort of property which, in a general sense, it is intended to cover. Nevertheless, I am sure the noble Viscount will agree with me that in a criminal Statute extreme precision is desirable, and that wherever one can one should try to avoid any ambiguity in the language used.
A further point was raised, I think by my right honourable friend Mrs. Shirley Williams, on paragraph (b) of subsection (3). It was said that, clearly, a car, a lorry or a van would be within the type of property which would be included in the Bill, and one might have a situation in which a bandit had used a car for get-away purposes, or a van for removing property from a warehouse, or something of that sort. The question was asked: What would be the situation if a van was used, for example, for the purpose of a joint venture carried on by a husband and wife, or if a wife's earnings had contributed to the purchase of a motor car in which she really had an interest? It could perfectly well be said of that motor car or that motor van that it was in the possession or control of the husband if in fact he was driving it, so that that part of the clause would be satisfied. But if that were the situation the unfortunate wife, if she wanted to regain possession of the van or car, would have to satisfy the court under paragraph (b) of subsection (3) that shehad not consented to the offender having possessionof that motor van or motor car—but, probably, she would have assented to his having possession in the normal course of events—or that shedid not know, and had no reason to suspect, that the property was likely to be used for the purpose mentioned" ;namely, for the commission of the crime.
I submit that it is easy to conceive a situation in which it might be very difficult for a wife, who, after all, is constantly with her husband, to satisfy the 1002 court affirmatively that she had no reason to think so. He might be a person who had previously been convicted of doing precisely the same sort of thing as that which led to his present conviction ; that is, using the van for the purpose of removing stolen goods. I agree that she would probably be able to satisfy the court that she did not know it was to be used on that occasion. But if he had a criminal record and had done that sort of thing before, it might be very difficult for her, if she were cross-examined, to establish that fact, and the position might be extremely invidious.
An unfortunate wife whose husband is sentenced to imprisonment, who wants to recover the van in order to carry on the haulage business, or something of that sort, which he and she had been carrying on, would, I suppose, be subjected to questions designed to show that she might have had some guilty knowledge. It would be extremely unfair and very invidious for a wife to be called upon to undergo an interrogation in those circumstances. I submit that that might lead to results which none of us would like, and which would seem oppressive. The wife might, after all, be under sufficient distress from having her husband in prison. It really would be unreasonable to expect her to undergo that further distress, which she would have to undergo if she wished to carry on the business while he was in prison and to support her children until he came out. That is a point which was raised ; it is a point which I put to the noble Viscount, and it is a point which goes to the humanity of the situation.
We must try to avoid our criminal law being oppressive. I quite agree that, very likely, the situation would not arise, because in a case of that sort a court would probably not make an order. But it might. In the case of a van used for get-away purposes, or for removing stolen property, it might very well be that a court would make an order, and then the wife would be put in the distressing situation which I have sought to describe. I raise these questions on the Question, That the clause stand part of the Bill, simply because it seems to me that they deserve further thought. Perhaps the noble Viscount will say—I shall be perfectly content if he will be so 1003 good as to indicate that it is the case—that he would like to give thought to these matters between now and Report stage, perhaps with a view to introducing a definition clause to define " property ", and perhaps to try to import into the clause some mechanism which would prevent certain wives being placed in the distressful situation which I have sought to adumbrate.
VISCOUNT COLVILLE OF CULROSS
I do not know whether, despite the moderation of his speech, I can promise the noble Lord very much change here, because, as he pointed out, this matter was substantially discussed in another place and I am bound to confess that I am convinced by what my honourable friend the other Minister of State said about it. On the first of the noble Lord's points about the definition of " property ", it is quite deliberate that we have not put in a definition. He is quite correct in saying that the commonest form of property which would be forfeited under this clause is something directly connected with the crime ; that is, a bunch of skeleton keys, a short-wave radio set and indeed, as the noble Lord was perfectly right in saying, possibly a car. But I very strongly suspect that if one started to define for this purpose one would get into a situation where the freak case would occur, where the one thing that had been defined out of the clause was the one thing that ought to have been confiscated, and one would do very much more harm than good.
The truth of the matter, really, is as the noble Lord said. The courts can be trusted to be sensible about this, and if they confiscate an elephant, a house, a bank account or something which is wholly inappropriate, then, fortunately, there is provision for an appeal. I should have thought the answer was to allow such a case to go through the ordinary process of appeal, because the appellate court is usually fairly sensible and lays down a common sense and practical application of the law. We do not want this provision to be too tied up. Forfeiture is meant to be a deterrent and it is meant to be fairly tough, because we think it right that these goods should be forfeited. I am bound to say that 1004 I am very hesitant about a definition clause in this case.
As regards subsection (3)(b), this is really a matter of the standard of proof and, again, the noble Lord has attractively put a hard case. But this matter was discussed on the basis that one should try to work out a different form of test for the courts and, so far as I can recall, all propositions which were put forward made it far too easy for associates of the criminal to satisfy the court, so that they would get the goods back again and there would be endless " put-up " jobs. The wording as devised is supposed to prevent that happening, but not, I hope, in such a way that unreasonable use will be made of it by the courts in the sort of case that the noble Lord has spoken about. I shall look at the points again but, without another form of wording which the noble Lord thinks more appropriate, we think we have gone pretty closely into them and are fairly satisfied that in the clause as it stands we have got the balance right on both of these matters. But if the noble Lord would like to suggest other forms of wording, I shall of course be prepared to look at them.
§ Clause 22 agreed to.
§ Clause 23 [Driving disqualification where vehicle used for purposes of crime]:
§ The noble Viscount said : Amendment No. 26 goes with Amendment No. 27 and also with an Amendment to Schedule 2. There are two very brief points. First of all, the Road Traffic Acts have been consolidated, so that we now make reference to the Consolidation Act rather than to the previous Acts. Secondly, in the second of my Amendments paragraph (b) provides for what happens when somebody applies for removal of a criminal disqualification, what the court does about it and how the Secretary of State is told ; because the Secretary of State will be keeping a register of disqualifications in South Wales when all the driving licence machinery is put together, as is proposed, very soon. Therefore, these are really 1005 drafting Amendments. My Lords, I beg to move Amendment No. 26.
§ On Question, Amendment agreed to.
Page 21, line 2, leave out from (" and") to end of line 7 and insert—
("(a) if he does not produce the licence as required he shall be guilty of an offence under section 101(4) of the Road Traffic Act 1972 (failure to produce licence for endorsement) ; and
(b) if he applies under section 95 of that Act for the disqualification to be removed and the court so orders, subsection (4) of that section shall not have effect so as to require particulars of the order to be endorsed on the licence, but the court shall send notice of the order to the Secretary of State and section 105(5) of that Act (procedure) shall apply to the notice.").—(Viscount Colville of Culross.)
§ LORD SWAYTHLING
Looking at paragraph (a) of this Amendment, I am reminded that many people are not happy at the continued reliance which is placed on the present arrangements for ensuring the production of driving licences. Many of your Lordships may know the difficulties that courts have, especially in the totting-up cases, to cause licences to be produced in court for that purpose. I should like to remind the noble Viscount that, although it is probably inappropriate to insert any Amendment into this Bill for the enforcement of the production of driving licences, it may well be that much sterner provisions may be required in the near future.
VISCOUNT COLVILLE OF CULROSS
I am much obliged to the noble Lord, Lord Swaythling. I really think it would be inappropriate in this Bill, because we are dealing with the specific point of criminal disqualification. But I will note what he says and will try to see if I can find somebody who will do something about it.
§ On Question, Amendment agreed to.
§ Clause 23, as amended, agreed to.
§ 2.2 p.m.
§ BARONESS WOOTTON OF ABINGER moved Amendment No. 31:
§ After Clause 23 insert the following new clause—1006
§ Prohibited employment orders
§ "23A.—(1) Where a person is convicted of an offence to which this section applies, then, if the court is satisfied, by reason of his character and antecedents and the circumstances of the offence, that it is expedient to protect children and younger persons from him, the court may impose a prohibited employment order.
§ This section shall apply to any offence of a sexual or violent nature against a child or young person.
- (2) If while a prohibited employment order is in force the person to whom it applies obtains or seeks to obtain employment of a kind specified in Schedule 1A to this Act, he shall be guilty of an offence.
- (3) Any person guilty of an offence under subsection (2) of this section shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds, or to both.
- (4) Any person who, knowing another person to be subject to a prohibited employment order, assists or seeks to assist him to obtain or gives him employment of a kind specified in Schedule 1A to this Act shall be guilty of an offence.
- (5) Any person guilty of an offence under subsection (4) of this section shall be liable to a fine not exceeding one hundred pounds
- (6) A court shall not impose a prohibited employment order on a person unless it has considered a social enquiry report, that is to say a report about him of the kind specified in section 57 of the Criminal Justice Act 1967, and a report about him by a medical practitioner approved by a local health authority for the purpose of section 28 of the Mental Health Act 1959 as having special experience in the diagnosis or treatment of mental disorder.
- (7) A court which makes a prohibited employment order may specify a period after which the order shall cease to be in force.
- (8) A court which makes a prohibited employment order may direct that it shall not apply to one or more of the kinds of employment specified in Schedule 1A to this Act.
- (9) A person with regard to whom a prohibited employment order has been in force for a period of a year or more may apply to a court for the rescinding of that order ; provided that if the order was imposed by the Crown Court the application shall be made to the Crown Court but otherwise shall be made to a magistrates' court.
- (10) A court to which an application under subsection (9) of this section has been made shall obtain and consider fresh reports of the kind specified in subsection (6) of this section.
- (11) A court which has received an application under subsection (9) of this section and considered reports of the kind specified in subsection (6) of this section may rescind the prohibited employment order, or may direct that it shall not apply to certain kinds of employment to which it has hitherto applied.
- (12) An application under subsection (9) of this section may not be made more than once in any period of twelve months in respect of the same prohibited employment order.
- (13) Where an application is made under subsection (9) of this section or a prohibited employment order is rescinded or modified under subsection (11) of this section, it shall not be lawful to publish in Great Britain a written report, or to broadcast in Great Britain a report, of any particulars calculated to lead to the identification of the person to whom the prohibited employment order related."
§ The noble Baroness said: This Amendment is also an attempt to put into effect one of the recommendations of the Non-Custodial Committee on which the Government frowned when the Report was discussed some months ago. I apologise to the noble Viscount that I cannot bring myself to refer either to this Committee or to any other by the name of the chairman—a practice which has grown up in recent years and which I think is very unfortunate because it leads the public to believe that the chairman is the sole author and, therefore, deserves the sole credit for any recommendations by the Committee of which they approve. Also, as I know to my cost in a different connection many years ago, it visits on the head of the chairman all the odium which may be aroused in the public and which some years ago caused a large number of members of the public to write to me, none of them I am glad to say actually threatening to kill me but many expressing satisfaction that in the course of nature I shall not encumber this earth a great deal longer and that after the happy event of my death youth will no longer be corrupted.
§ This Amendment has two purposes, one of which is to protect children—and I think that is the major purpose—and one of which is perhaps to keep out of prison a few people whom it is not necessary to send there. We cannot protect children in all circumstances, and we certainly cannot protect all children in all circumstances ; but children in institutions and in school are particularly vulnerable, sometimes because they have no responsible parents and sometimes because their own situations make it difficult for their parents to advise them. It is quite easy for a parent to say, " Do not accept presents from strangers or lifts from strangers ", but it is a little difficult 1008 even for parents to say, " Be very careful about the things which your schoolmaster may say to you or that somebody employed on the staff of your school may say to you." The Amendment, I am afraid, is a little long, but I think it may be for the help of those members of the Committee who have not followed it in detail if I say that it has been professionally drafted, but I do not defend the drafting in every respect. Particularly, I am aware that the Schedule to which this new clause refers is a somewhat elementary attempt to cover a very difficult field ; and my Committee said that they regretted that it was necessary to keep the Schedule so short, because they did not feel able to say how much further the inclusion should go.
§ In principle, the Amendment follows the kind of law which governs disqualification from driving. It proposes to introduce disqualification from holding particular forms of employment. If I may run through them very quickly and not totally accurately, what it proposes is that any person who is convicted of a serious offence of violence or of a sexual nature against a child shall be prohibited from taking employment in children's institutions or employment of a nature closely concerned with children. If he does so, he is guilty of an offence which carries a penalty of either a £100 fine or six months' imprisonment, or both ; and if an employer knowingly employs somebody subject to such an order, he is guilty of an offence which carries a penalty of a fine but not of imprisonment. It is further laid down that the court is not to make a prohibited employment order unless it has already had a social inquiry report and unless there has been a report from a psychiatrist or a doctor who is recognised as having special experience in the diagnosis or treatment of mental disorder under the Mental Health Act 1959.
§ As with driving disqualifications, the court may put a term to the order and, in this case, may say that it applies to one or more of the various occupations set out in the Schedule. The Amendment also gives the person subject to a prohibited employment order the right to apply for it to be rescinded, just as one has the right to apply for one's licence back, except that a limit of a year is set before such an application can be made. Then, if a court is faced with such an 1009 application, it must again get a social inquiry report and a report from a qualified medical practitioner ; and it may then rescind the order either in toto or in relation to the particular occupations mentioned in the Schedule. An application for an order to be rescinded is not to be made more than once in any 12 months, and if an order is rescinded—and this is a point of some importance—nobody is to broadcast or to publish in any way particulars which would lead to the identification of a person who has been but is no longer subject to such a prohibited employment order.
§ Your Lordships will see how this is intended for the protection of children. There are the numerous safeguards that I have listed. There must be a medical report and there must be a social inquiry report before any such order is made. There is the ordinary power to appeal against such an order, which is not specifically mentioned, but there is also power to ask for it to be rescinded after a period of a year. It was contemplated by the Committee that the information that a person was subject to such a prohibition would be imparted to local authorities and would be confidential to them except in cases where a recognised employer—one of the institutions named in the Schedule—asked for it. It is not to be broadcast in any other form. That is not in the Amendment, but it was certainly in the minds of the members of the Committee.
§ Now I come to the arguments which the Government used when they blew cold upon this recommendation at the earlier discussions. The arguments were, in effect, that if this order became available to the courts it would discourage the unofficial inquiries which are at present made by the Home Office, and, therefore, in a sense, it would probably defeat its own object.
VISCOUNT COLVILLE OF CULROSS
With respect, it is not the unofficial inquiries made by the Home Office but the unofficial inquiries made by employers of people—the Department of Education and Science or the local education authority and the hospital Boards under the ægis of the D.H.S.S.
§ BARONESS WOOTTON OF ABINGER
I accept the noble Viscount's correction but I will come to the point about 1010 the Home Office in a moment if I may. My answer is that if this discouraged unofficial inquiries it might be a good thing. I do not like underground inquiries. I do not think it would be effective in that way but it might supplement them and indeed make some of them unnecessary. I am reinforced in this view—this is where the Home Office comes in—by an editorial note in the current issue of the Criminal Law Review which refers to this matter. It says the idea of having a prohibited employment order seemed sound in principle but that there may have been features in our proposal to which objection might reasonably be taken. That seems a safe comment on any proposals. I quote :It now appears that what the Committee recommended should be brought in at the front door has already been taken in at the back. According to Press reports the Home Office has admitted that it has asked Chief Constables to report to the relevant employer or authority the convictions of a wide class of people such as teachers, doctors and nurses. While the principle that certain employers or authorities should be informed of certain offences committed by their employees or members … there is a whole lot wrong with this sort of procedure recommended by the Home Office. A man's job is ordinarily his most valuable possession. He is entitled to have clear notice of any official action which puts it at risk. He is entitled, in addition, to the sort of safeguards which the Advisory Council would have given him. At the hands of the Home Office he has neither prior notice nor legal safeguards.Those are the comments which the Criminal Law Review made recently on these proposals.
I have only one other thing to say and that is about the scale of this. I do not think the numbers could be very large. I have tried to trace the number of convictions in the Criminal Statistics for 1970, which are the latest available figures of what are definitely likely to be relevant offences. I know they are not complete because some offences are concealed under the Offences Against the Person Act and under legislation dealing with grievous and actual bodily harm and so on. But if we confine ourselves to cruelty to children, unlawful sexual intercourse with girls under 13 and gross indecency with children we get a total, for 1970, of 134 convictions. Of those convicted, 69 were sentenced to either immediate or suspended imprisonment. It seems to me, therefore, that notification of these offences, at least to 1011 local authorities, could not be a very large operation and that it would be a very simple matter for any employer in one of the scheduled occupations to ring up the local authority and ask whether a certain person was on its list.
In short, those are the intentions of the Amendment. The primary purpose is the protection of children, particularly vulnerable children. We do not know the history of the 69 persons sent to prison but it seems likely that a certain number of them had this peculiar propensity to offend against children in circumstances in which they had special opportunities for so doing but who were otherwise responsible citizens who could be employed in offices or factories with no danger to the public. On those grounds I beg to move.
§ LORD DONALDSON OF KINGSBRIDGE
I put my name to this Amendment with some diffidence. It is a difficult one for somebody who works from my point of view. Clearly it saddles a man with his offence for some time after his release. On the whole this is the thing which I find most objectionable. Before very long my noble and learned friend, Lord Gardiner, will have before your Lordships a Bill based on the report which the Howard League and my own organisation prepared under his chairmanship, called Living it Down. In respect of sentences of a certain length that report lays down a period after which they can no longer be referred to. I am strongly in favour of eliminating the scar of an offence after a certain period but his Bill does it after a very long time. I do not think there is a conflict with my noble friend's Amendment here.
The other point which to me is more difficult to get over is that I believe with increasing enthusiasm in the American experiments, which have been so succesful recently, under which offenders are employed in various aspects of social work. As I said a couple of days ago, they have found jobs for over one million offenders in this sort of work and the fall-back rate seems to be lower than if these people go into the Post Office or somewhere like that. It seems to provide satisfaction for both parties, and they seem to do the work very well. We have an initial proposal which, in con- 1012 junction with the Home Office, I hope will shortly be fully off the ground.
It seems to me that one or two of the restrictions in Schedule 1(a) of my noble friend's Amendment might conflict with this. I should like to think that after a certain period offenders, having been given some training, could actually go into the Probation Service. I would not want to rush them and one would have to have a very careful preparatory period. On reflection I think that a man who came out and went into one of these new careers training arrangements would be under a ban for the first year and that this would not affect his training. At the end of that time if the people who were training him thought the danger had receded, application could be made under the Amendment and he could be relieved of the restriction. I think the two original objections which were in my mind do not stand up.
There is one very important argument in favour of this. It will make it easier for the Parole Board to let people out. This is very important. In a number of cases concerning sexual offenders the Parole Board feels pretty certain that the people are all right, but one can never be quite certain. If an offender was allowed out with a bar on employment which was particularly dangerous both for him and for other people this would be a help to the Parole Board in letting him out earlier. So on balance I support the Amendment. I think it is quite a difficult conception. I do not think somebody would be very violently wrong just because he differed from it, but on the whole I think it will not do any harm in the two directions in which it might do harm and that it will do good in making it easier to let out people for whom it is extremely difficult to provide a certain prognosis. On those grounds I support my noble friend's Amendment.
§ BARONESS BIRK
I support the Amendment. Like my noble friend Lord Donaldson, I had some reservations about it at first. In my view, anything which prohibits somebody from taking up employment is something to worry about. It is another inroad on the liberty of the individual. I think this is the sort of special case about which my noble friend Lady Wootton so ably argued: that as it is concerned specifically with children, 1013 and the offender himself has perhaps an absolute compulsive need to go back to the same sort of work in order to make the same sort of sexual contacts, it really is necessary for the protection primarily of the child, and secondly of the offender himself.
I am not altogether sure that I agree with what my noble friend Lord Donaldson said about the American social work. But, apart from that, I do not think it is exclusive of this, or that it cuts across the Amendment of my noble friend Lady Wootton. There seem to me to be safeguards. One of the important things is the point my noble friend Lady Wootton mentioned about disqualification from driving. A great many people, once this order is enacted, will use it as a deterrent. If they know that they are prohibited from taking this employment, I believe that this will have an effect in a great many cases without the necessity to activate the consequences of their doing it. I should have thought that this was an extremely sensible clause, and that this is the Bill in which it should be included, since we are trying to keep people out of prison and to deter them from repeating the same sort of offence and are also concerned with the protection of the young.
§ 2.32 p.m.
VISCOUNT COLVILLE OF CULROSS
There cannot be anybody in this Committee who is not wholly sympathetic with the object that underlies this Amendment moved by the noble Baroness, Lady Wootton of Abinger, and supported by the other two speakers. We are faced here with one of those difficult balances that occur from time to time, and I am afraid that at the moment I would advise the Committee that marginally the weight comes down against accepting the Amendment. I will try to explain tolerably briefly why. Perhaps I could deal first with a specific point raised by the noble Lord, Lord Donaldson : that it would help on this question of parole if the court had a power to make a prohibited employment order in the first place. To a limited extent it might, but only to a limited extent, because on granting release on licence the Parole Board can impose conditions, at any rate for the duration of the parole. Therefore the only way in which it would help 1014 would be that the prohibited employment order would last for longer than the parole. I do not think there is great significance in that, in view of the powers that they already have.
Supposing that a prohibited employment order under this clause was a comprehensive check ; and supposing that it provided a complete system whereby one could record all the cases in which it would be unsuitable for people to be employed in the list of establishments set out in the Schedule, there would, I think, be an overwhelming reason for accepting the Amendment. The difficulty about it is that it would not. In the first place, under any system that could be devised—not only under this particular piece of drafting, but under any piece of drafting of this sort—the discretion whether or not to make a prohibited employment order has to be left in the hands of the courts. It cannot be something that is automatic on certain forms of conviction (this is the usual trouble about taking away from the courts their discretion) because sometimes there would no doubt be sexual or other offences which prima facie would be covered by this sort of case where the court would say: " No ; this is not a case where we feel we should make a prohibited employment order ". There would also, I think, be the risk of a certain diversification of the types of case in which different courts throughout the country made these orders. Therefore what at the most you would get would be a list of people on whom this sort of order had been made.
I suggest to the Committee that it is not necessarily conclusive of the desirability or otherwise of further employing a person who has propensities of this sort that a court has thought fit to make a prohibited employment order on him. There might be other cases where—perhaps because they did not wish to saddle him with the sort of stigma that some noble Lords have talked about ; or because they thought it was a minimal case ; or because they were not aware that there were other offences of this sort, or because some mistake was made—the court did not make a prohibited employment order. Yet on a subsequent application for a job involving the sort of people whom we are concerned to protect that sort of person ought not to be employed. Therefore inevitably 1015 the list set up would not be fully comprehensive—I see the noble Baroness nodding. I am afraid that any system is bound to suffer from this.
The other thing is this. Supposing one gives this power to the courts, one is, as two speakers have said, attaching to a man's name a judicial stigma. Apart from the possible arbitrariness that I have been discussing, I can see that to do this judicially is a disagreeable thing to do. Nevertheless, the fact remains that there are people who, whether or not they have actually been convicted of offences, are for one reason or another probably not suitable for the sort of employment we are talking about. I suggest to the Committee that it is primarily the duty of the employer, the person who wishes to take on staff in hospitals, schools and other of the protected institutions mentioned in the noble Baroness's Schedule, to make sure that he does not employ people who are liable to carry on in this undesirable way, and that it is not the primary duty of the court to try to decide for the employer which people to ban. If that is right—and I think it would happen, anyway—I am sure that we ought to do nothing to discourage employers from taking up references themselves. They would have to do this over a much wider field, I believe, than that simply covered by a prohibited employment order.
The sort of scale of this is fairly alarming. It is quite true, as the noble Baroness said, that there are comparatively few convictions of the sort that might attract one of these orders. Her clause would impose (and I think this is right) a criminal liability on an employer who knowingly employed somebody upon whom one of these orders had been made. That means to say that the wise employer would have to ask in the case of all staff he proposed to take on whether or not they were on the list. The turnover of staff in the hospital service is something in the region of 100,000 a year. It is true that not all of them would be operating in the parts of the hospitals mentioned by the noble Baroness in her Schedule, but one cannot necessarily tell, when a person is taken on, in exactly what position he is going to work in a hospital. Some hospitals move their staff around, and in some cases employees would go into wards where they would 1016 come into contact with children. Teaching is equally important and there is a fairly large turnover of teachers. It would be organisations of that sort—the local education authorities, private schools and the hospital boards—who would need to consult the register every time they took on staff. That would be a major operation. It would require a large staff simply to run the machinery under the Order.
Even then, it is not going to cover the whole field. We still have, in the realm where protection is needed, a very large number of voluntary organisations. There are goodness knows how many most admirable organisations who operate with voluntary staff—at any rate in the sort of spheres that the noble Baroness has scheduled. Those who work there are not employees: they are very often volunteers. What about them? Is it not the responsibility of the organisation concerned to see that it does not employ people who have these sexual and other reprehensible tendencies and who may come into contact with children or are given jobs where they would have the opportunity to go in for these disagreeable practices? The Prohibited Employment Order situation would not cover this situation, but I still think the responsibility is there.
Then there is the question of enforcement, because one would have to do a certain amount of checking up to see that people were not being employed in spite of the fact that they were on the police list. This would require further staff. All in all, good though the idea is, and full of exactly the right sort of tendency to try to give protection for these sorts of offenders, I do not believe that it is comprehensive enough. I am terrified lest it become the source to which the employers would alone go. They might be encouraged not to take up their references, and in that event they would not be aware of the background of some of the people they were employing. I genuinely believe that there is a danger of our increasing rather than decreasing the danger in such a way. As I said, it is not a clear-cut case either way.
I have tried to explain what the difficulties are, as we see them. I am sure that the noble Baroness and her Committee thought about this and I am very 1017 sorry that although we have considered this again very seriously since my noble friend Lord Windlesham mentioned it in December, we are still convinced that the advantages here outweigh the disadvantages. We are very grateful to the noble Baroness for putting before us once again the whole idea so that it could be further discussed in Committee.
§ LORD GARDINER
Before my noble friend Lady Wootton speaks further, could the noble Viscount tell us, if not to-day then perhaps at a later stage of the Bill, about the alternatives? Not many people, I think, have known until quite recently that the Home Secretary has a secret list of organisations to which he regularly refers—or at least the police do so on his behalf—for certain convictions, though no one knows which convictions they are. The contents of the Criminal Records Office are subject to the Official Secrets Act. There are already, I am afraid, unhappy reasons—they were set out in the Report of the Committee of which I was chairman—to believe that there are occasions on which, either knowingly or unknowingly, information which should be subject to the Official Secrets Act is given to third parties. Of course the police are fully entitled to do so if authorised by the Home Secretary. What really seems to be intolerable under the present practice, although I know that the present Home Secretary is considering it, is that there are unknown lists of organisations—nobody knows who they are and their names are not published—to whom either all convictions or some convictions are regularly reported by the police. As we have seen in a recent case, the information is not necessarily accurate. Anybody who has thought about privacy is convinced above all else that whatever Government or other computers have about us, we ought to be entitled to see what it is, particularly if the information is to be shown to somebody else.
Therefore I am sympathetic to my noble friend's Amendments, although not particularly enthusiastic about it. One has to consider what sort of alternative measures the Government propose. I have very much in mind the fact that their attitude to any of these matters can be decided only by the Home Secretary, and of course we must bear in 1018 mind that he has held office only since Tuesday. But perhaps at some later stage we can be told whether he has had an opportunity of considering the practice and whether he intends to go on with it. What he is doing ought to be known, together with the list of organisations to which information is sent ; and certainly it should be possible for the individual to be told and put into a position where he can, if necessary, correct the records.
VISCOUNT COLVILLE OF CULROSS
I am very much obliged to the noble and learned Lord for reminding me of that, which was something the noble Baroness herself had raised. I do not think I can go much further than my right honourable friend the Member for Barnet went on June 29 when he answered a Question about this in the other place. He said, as the noble and learned Lord reminded us, that he was reviewing this. It relates only to convictions in open court. He did say that he looked very favourably upon the idea that the person concerned should be given a copy of information affecting him. However, the review that he mentioned has been in force for only about three weeks and has not yet been completed. I think the best thing to do about this is to see, when we revert to this Bill at some later stage, if anything has happened, that a statement on the subject is supplied. I will certainly undertake to do that, but I am afraid I cannot help the noble and learned Lord any further to-day, except to say that the review is in progress.
§ 2.37 p.m.
§ BARONESS WOOTTON OF ABINGER
I am very much indebted to the noble Viscount for his sympathetic reaction to this Amendment. It seems that the burden of his case is that half a loaf is better than no bread—I should say better than a whole loaf. I am not sure that he has in any case got a whole loaf : neither is he. I cannot take very seriously his argument that employers would give up making their own inquiries and taking up references. Employers take up references for a great many more reasons than to inquire whether an applicant has been convicted of an offence of this character. It seems to me that it would soon become a routine matter, when taking up references, simply to add this one thing, 1019 allowing the local authority to say whether there was any order in force against the person applying for employment.
No matter what unofficial precautions various employing authorities—and perhaps the Home Office, too—are taking, cases do occur. Cases have occurred in which people have taken jobs in schools and have committed very serious offences. It has then come out that they have a considerable record of similar offences ; and of course it is very understandable that people with these particular propensities should seek employment in schools and children's institutions. It seems to me that for that reason this would be one additional safeguard in such cases. I do not pretend that it would cover the whole field, and I appreciate the noble Viscount's concern that it would not. Perhaps a wider, looser net would be needed to cover such cases and to make sure that everybody who was a potential risk had been caught. Even then one would not succeed in 100 per cent. of the cases. But there are quite serious cases of people who have been before the courts—people with quite serious records, and people whom the courts could have made the subject of a prohibited employment order. In present circumstances, the courts do nothing except put them on probation, discharge them, or perhaps send them to prison, as they sometimes do, for quite considerable periods. Whereas if such people were kept out of this kind of job, they would be perfectly safe persons to be at liberty in the community.
I am well aware that there are practical difficulties involved, and I am particularly well aware, as I said at the beginning, that there are difficulties in what to include in the Schedule. Theoretically one ought to introduce a great deal more into the Schedule than is already there. We did, regretfully, keep it down as low as possible. I realise that the hospitals present a specially difficult case. In the circumstances I shall ask leave to withdraw the Amendment, but in the earnest hope that the noble Viscount will watch what is happening, and report to us upon the inquiries which he says are being made. And I hope that when we come back at a later stage in the Bill he will find an 1020 opportunity to tell us what the situation is. I hope, optimistically, that he may be able to suggest that there may be some improvements so that his three-quarters loaf, as he thinks it is, may be made a little larger.
VISCOUNT COLVILLE OF CULROSS
In response to the noble Baroness, may I say that what we should be doing would be administrative, and would not therefore be dependent upon fitting in with the timetable of this Bill. I cannot promise to make a statement before we leave the Bill. I do not know how long the review is going to take, nor do I know the timetable of this Bill—it seems to get longer every day.
§ BARONESS WOOTTON OF ABINGER
I appreciate the difficulties, particularly the one last mentioned by the noble Viscount. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 2.42 p.m.
§ BARONESS WOOTTON OF ABINGER moved Amendment No. 32:
§ After Clause 23 insert the following new clause :
§ Attendance at an attendance centre for motoring offences
(" . In section 19 of the Criminal Justice Act 1968 (which provides for attendance at attendance centres) there shall be added after subsection (1) the following subsection—
(1A) At least one attendance centre under this section shall provide training exclusively in the use of motor vehicles and matters related thereto and the courts shall have power to order persons of seventeen years of age or over who have been convicted of motoring offences to attend at such a centre in accordance with the provisions of this section. The proviso to subsection (1) above does not apply to this subsection." ")
§ The noble Baroness said: First of all I must call attention to a misprint in this Amendment. The misprint must originally have been due to my bad writing and my carelessness in not picking it up in this and earlier prints of the Marshalled List. The first line of the Amendment reads: " … the Criminal Justice Act 1968 …" but it should read : " … the Criminal Justice Act 1948 …" This is a proposal for attendance at attendance centres for adults. It will mean extending the possible age range. At least one attendance centre will be 1021 devoted to motoring offences alone with a programme that deals entirely with motoring law, motoring manners, skills and related matters.
§ Some very flattering references were made at an earlier stage to attendance centres. There are two senior attendance centres. At present they cater only for persons up to the age of 21 years. That would be absurd for a centre dealing with motoring offenders. Therefore legislation will be necessary to raise the age limit to anybody over 17 years of age. The difficulty about these two attendance centres, and the junior ones as well, is that hitherto the people who ran them really did not know what to do with the young men who attended on Saturday afternoons. Part of this difficulty goes back to the historical origin of the centres. When they were first introduced Parliament was uncertain whether the centres were to be a deterrent or whether they were to be educative and constructive. Some years ago I visited a junior attendance centre where this dilemma had been resolved, so far as one could see, by making the attendance of two hours a deterrent as to the first hour and, allegedly, constructive in the second hour. This did not seem to be a very happy solution. Much more recently I visited the London senior attendance centre, which is the nearest parallel to what we are proposing here. The programme was divided between exercises in weight lifting in the first half of the afternoon, and in the second half of the afternoon there was a very valuable demonstration, from which I learned a great deal and which I hope I still remember, as to how to give the kiss of life in cases of emergency. I was very concerned about the weight lifting because there is no medical examination of the people who come to these afternoon attendance centres. I thought some of the exercises were extremely strenuous and possibly dangerous to people who were not strong, or had heart trouble, for instance.
§ This proposal provides a programme which will be strictly relevant to the offence committed, and would once and for all in this case solve one's problem of devising some way of occupying people on Saturday afternoons who have committed offences which were not serious, when one did not know 1022 whether one was supposed to be deterrent or to be constructive, or whether one could be constructive in the odd hour on the odd Saturday afternoon. The centre would provide something which in our penal system is rare ; namely, something definitely related to the offence committed and designed to help the offenders to keep out of trouble in future in respect of that particular offence.
§ The curious sentence at the end of my Amendment is designed to remove the proviso in the Criminal Justice Act 1948 and means only that people who have already served custodial sentences should not be excluded. It would be inappropriate for somebody who had been to borstal as a young man and had then started committing a series of motoring offences when he was 35 years of age to be prevented from benefiting from this kind of attendance centre. This Amendment need not involve adding to the attendance centres. It is an experimental proposal; it could take place in one of the existing senior centres with the increase in the age limit. Alternatively, we could have one more centre which would be experimental. It is intended that it should be an experiment in the first place. I beg to move.
§ LORD ROYLE
May I utter one or two words in support of my noble friend's Amendment? It is a very wise provision that she is endeavouring to make in connection with motoring offences. Before a person is sent to an attendance centre we have to decide what type of offence has been committed. The people I have in mind are those whom we have become accustomed to calling " aggressive drivers "—those many people who as soon as they have passed their driving test, think that they are absolutely perfect in their driving and that they can take all manner of risks, push everybody else off the road, cut through when it is not safe to do so, and so on. That type of individual would gain much benefit from attendance at a special centre for that purpose. He would realise there was something more to learn about driving a motor car than what he had been taught in readiness for the driving test. There is a much deeper significance attaching to this matter. It can be very serious. People of that kind are almost potential murderers in the way in which they behave on the road. We have talked 1023 in other connections about sharp shocks and so forth ; but to be sent for a couple of hours on a Saturday afternoon to be taught how to drive a motor car in a more advanced fashion would be of great help. I hope that the noble Viscount will say that he is prepared to accept this Amendment.
§ LORD DONALDSON OF KINGS-BRIDGE
Although my name was on the Amendment the Marshalled List does not make this clear. I should like to support the Amendment. The whole theory of penal reform nowadays is to deprive people of their liberty so as to protect the public and, while you are doing it, to do something for the offenders. Your Lordships have probably heard this theory before ; it has been said a thousand times. This Amendment provides an exact instance for producing an interference with leisure and at the same time doing something constructive. Just as in order to get the best free psychiatric treatment in the country you have to commit a crime and be sent to Grendon Underwood, I hope that very shortly in order to get decent tuition in driving a car people will commit small crimes in order to attend the centres. I warmly support the Amendment.
§ BARONESS BIRK
I support this Amendment. My noble friend Lord Donaldson of Kingsbridge joked about the psychiatric side, but I hope that if we have these attendance centres they will try to find out the motivations of some of the young people who are always going before the courts. This is a rather different point from the one made by my noble friend Lord Royle about aggressive drivers. These are drivers who are addicted ; they take away cars, they get disqualified and are given some penalty. This becomes a circular thing. At a very early age they have a long list of probation or other penalties. This is a serious problem. As well as actual tuition on the mechanical side, if the attendance centre could be used to try to find out the motivation and try to divert some of the energy which is used in this way it would be helpful. I and other colleagues who sit in the courts find that this is one of our biggest headaches in regard to young people.
§ 2.50 p.m.
VISCOUNT COLVILLE OF CULROSS
I am acutely aware that recently this afternoon I have been discouraging, although I started off rather well. I have some more goodies later, but not to-day. There are two snags about this Amendment from the point of view of the Government. The first, as the Committee will appreciate, is that we are breaking a good deal of new ground in this Bill and we are spreading our resources widely in the process of doing so. As the Committee will know, some of the measures will have to be introduced slowly, because of lack of experience for one thing and lack of manpower for another. Others, such as deferred sentences, are on a different sort of experimental basis. In order to deal with the sort of motorists who have been mentioned in this short debate we should want a substantial chain of attendance centres. I know that the noble Baroness mentioned only one, but I think that if we are to have them at all we should be aiming at a pretty large number. Otherwise it is not going to make any impact, because we shall not begin to cover the ground.
I have to confess to the Committee that the Government, for reasons which I will give in a moment, do not think that this is the right point in time to embark on this proposal. It is a matter of pure resources. For one thing, we think it would be expensive. There are other difficulties. I was interested in what the noble Baroness, Lady Birk, said about the motivation of the people who commit offences of this kind. Nobody knows how to re-train these people. From the driving point of view it would be comparatively simple, but then one must look at it from the point of view of preventing them from using motor vehicles in an anti-social way. That is what matters. One can go to 10,000 schools of driving around the British Isles and it is comparatively easy to be taught the mechanics of how to use the clutch and the brake, how to change gear and to follow the Highway Code; but what nobody has yet been able to discover is how to dissuade people from getting into a frenzy when in a queue, going across solid white lines, coming out of junctions without stopping and doing other idiotic things which more people do than should. Nobody knows 1025 why they do so or how to train them to stop it.
When I saw this Amendment on the Order Paper I thought that there might be some information within the Prison Service. I asked whether any of the staff in our remand centres or borstals, where there are quite a number of young people with this addiction to which the noble Baroness referred, could help. I was told that there were details of the numbers of people and that sort of thing but nothing so far about the motivation which would give them a line on how to re-train. That is the situation.
What is the régime going to be? At the moment I have to tell the Committee that I do not know. Nobody else knows. I do not think that the Road Research Laboratory, the Home Office or the police know. That being the case, what sort of régime does one set up ; and who runs it? I have to say that to put the Probation Service on the job is not possible, for the reason which I have given about 500 times in this Committee—staff. I do not think the police would be particularly anxious about it. They do a certain amount in connection with attendance centres. This is a " dicey " area of conflict between the public and the police. Their manpower is not perfect either, as the noble and learned Lord, Lord Gardiner, mentioned on Second Reading. I do not think they would be particularly anxious to take this on as part of their responsibility. I rather doubt whether it falls plainly into the lap of the Prison Service. In these circumstances, we should have to recruit and train a different sort of person, probably a civilian.
Then there are problems about discipline. Because this is an attendance order imposed by the court, the person who is running the course and is in charge of the offender has to be able to take disciplinary powers if the person sent by the court does not attend. A disciplinary service is needed in order to do this—and a trained service at that. That is the position. It might be very attractive to have one attendance centre. Nobody could say that that would be grossly extravagant or an impossible waste of resources, but it is the problem about régime and staffing that concerns me. This Amendment is mandatory and is not something that my right honour- 1026 able friend could do if he managed to find the answer ; it is something which in these terms he must do. I have to tell the Committee that I do not think we know how. For those reasons, although it may be a terrible confession to make, I must appeal to the noble Baroness, Lady Wootton, not to force us into doing it because I think that in the present state of our knowledge we should do more harm than good.
§ BARONESS BIRK
Before the noble Viscount sits down I would refer to one point arising out of what he said relating to my remarks on addiction to motor vehicles. As so little is known, could he tell me whether there are any plans to do research? If so, the setting up of even one attendance centre would be almost like a pilot scheme. One could do there some of the research. There would be a group of people all concerned with the same type of offence.
VISCOUNT COLVILLE OF CULROSS
If I may respectfully suggest it to the noble Baroness, this is objectionable. I do not think that people could be sentenced to go to an attendance centre to be researched on. One must know what one is doing before giving courts power to send someone to an attendance centre of this sort. I do not think we could treat people as guinea pigs.
§ LORD DONALDSON OF KINGSBRIDGE
Does the noble Viscount seriously think we know what we are doing when we send people to prison?
VISCOUNT COLVILLE OF CULROSS
I think we know a little more than we do about training people to behave socially on the roads.
§ BARONESS WOOTTON OF ABINGER
I think there must be a misunderstanding in what the noble Viscount said just now. I do not think there has been any suggestion by anyone that people should be sent to an attendance centre for research to be done on them. I am sure the noble Viscount would not accept the view written into a good many recent penal developments that when they are started research into their effect should also be coincident.
VISCOUNT COLVILLE OF CULROSS
I entirely accept the point. Probably what I said is plain to the Committee.
§ BARONESS WOOTTON OF ABINGER
I entirely agree. I know no bounds to my admiration for the noble Viscount's ingenuity. I think he has surpassed himself this afternoon in his arguments against this extremely modest proposal. He first of all argues that it might be a failure because we do not know what to do. This is true. But we do not know what to do with people in attendance centres at the moment. I have tried to point that out. We do not know with any clarity what to do with the erring motorist. But at least we could try. If before we tried we always waited to know what to do, a great part of our penal system would disappear tomorrow because we are blundering in the dark all the time. Here we have responsibility for attendance centres for a particular class of offender who might be provided with a programme which was at least related to what they have done. That is more than can be said about what goes on in attendance centres at present.
The noble Viscount also asked about who was to run the attendance centres, and he said that they would be expensive. We only ask modestly for one as an experiment. If it is a failure it can be closed up quickly and we can go back to the present system, or abolish the attendance centre altogether. When we came to consider who should run them, we thought that a good many people could do this job and that one of the most likely classes would be retired police officers, who like a little extra work and who have had a good deal of experience. Indeed, many of them have had experience on the motoring side of the police service.
The noble Viscount piled up his arguments in support of failure with remarkable skill until I wondered when he would run out of material, but suddenly he went to the opposite side of the coin and said that if the centres were a success they would be spread all over the country. 1028 Nothing could be better than to achieve that sort of success and have them spread in that way because we might then save literally thousands of lives. The noble Viscount cannot have it both ways. We are not asking him to assume that the centres will be a success and be spread all over the country, though no one would be more delighted than my Committee and myself if they were. We are simply asking that with a couple of attendance centres, with programmes thought up out of nothing, as it were—because people do not know what to do with them—he should provide this one exception which would enable us to have a programme at least related to what the offender has done. One compromise occurs to me. This Amendment would require legislation because it would raise the age above 17—
§ BARONESS WOOTTON OF ABINGER
I am obliged to the noble Viscount. Would he consider administrative action for the 17 to 21 age group, which is at present covered by senior attendance centres, by perhaps switching the programme? Might it be possible for this to be done without legislation in one such centre?
VISCOUNT COLVILLE OF CULROSS
I do not have any idea whether that would be possible. I can therefore say to the noble Baroness with all honesty that I will consider the matter and that I do not know what the result of that consideration will be.
§ Amendment, by leave, withdrawn.
VISCOUNT COLVILLE OF CULROSS
We seem with our usual unerring accuracy to have arrived at three minutes past three o'clock. The Committee may think this a convenient moment to pause and we can revert to this happy subject on 1029 Monday. If noble Lords agree, I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.