§ 2.20 p.m.
§ THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE)
My Lords, I beg to move that the Bill be further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Aberaare.)
On Question, Motion agreed to.
§ Clause 24 [Variation of penalties for certain offences]:
BARONESS PHILLIPS moved Amendment No. 34:
Page 30, line 34, at end insert—
("(3A) In consequence of the amendment in Part III of Schedule 5 to this Act relating to an offence under section 40(5) of the 1972 Act (contravention of construction and use regulations) in Part I of Schedule 4, in column 5 (disqualification) of the entry relating to section 40(5) of that Act—
§ The noble Baroness said: My Lords, I beg to move Amendment No. 34 and, with the permission of your Lordships, to speak at the same time to Amendment No. 39. This is a simple Amendment to which I have good reason for believing that during this festive season the Government may well give some consideration and support. It is to remove an anomaly in penalties for offences which involve infringement of different paragraphs of the Construction and Use Regulations relating to the safety of loads on vehicles. The maximum fine now is £200, and there is discretion to disqualify if the offence involves infringing the regulation that the weight and distribution, packing and adjustment of the load shall be at all times such that no danger is caused or likely to be caused.
§ Where there is an infringment of paragraph 2 of the Regulation which requires that the load at all times shall be so secure and in such a position that no danger is caused or likely to be caused by reason of the load, or part of it, falling 527 off, the maximum fine is only £50, and there is no discretion to disqualify. In paragraph 3, which prohibits the use of a vehicle for any purpose for which it is so unsuitable as to cause danger, or be likely to cause danger, the maximum fine in each case will now be doubled by Schedule 5 to the Bill as it stands. The Amendments under consideration would make the increased maximum fine of £400, and the discretion to disqualify applicable to all three types of offence. So far as I can see, there is no reason for the difference here.
§ LORD MOWBRAY AND STOURTON
My Lords, the effect of this Amendment, coupled with Amendment No. 39 which the noble Baroness discussed as well, is to remove anomalies in the penalties for offences which involve infringment of the different paragraphs of the Construction and Use Regulations relating to the safety of loads on vehicles. This is indeed an anomaly, and we on these Benches are grateful to the noble Baroness for having seen this and for putting down these Amendments to get it right. We are more than happy to accept the Amendment.
On Question, Amendment agreed to.
Schedule 3 [Amendments of Part III of Road Traffic Act 1972]:
§ 2.23 p.m.
LORD PLATT moved Amendment No. 35.
Page 37, line 40, leave out ("more acute") and insert ("substantially more severe")
§ The noble Lord said: My Lords, as your Lordships are aware, Schedule 3 deals with certain Amendments to the Act of 1972. The Amendment which I propose is a purely verbal one. I do not think it raises any matters of principle; it is just a question as to what are the right words in which to describe the aims of this part of the Schedule. Your Lordships will remember that at present you have to sign a declaration every time you get a new driving licence, which is once in three years, to say that you are fit in various medical respects to drive a motor car. If there are to be opportunities for getting a licence almost for life, or, at any rate, until the age of 70 without further questions being asked, the question arises as to whether a person who knows he is suffering from a chronic disease 528 should be compelled to report, or be told that he must report, if at some stage this chronic disease becomes more serious. The examples which the noble Viscount, Lord Colville, gave at an earlier stage of the Bill were sclerosis, by which I think he meant multiple sclerosis, arthritis and cataracts.
§ The point is that if this chronic disease becomes more serious, so that the person is seriously handicapped, then he must declare it, even though he has not reached the age when he has to apply for a new licence. The words used in this Bill are that if the licence holder becomes aware that a relevant or prospective disability from which he has at some time suffered has become more acute since the licence was granted, then he must report it. To my mind, the words "more acute" are not appropriate. As your Lordships will know, "chronic" relates simply to time, and a chronic disease is one that goes on for a long time and is very often incurable. Therefore, to the layman, "chronic" very often means incurable, but it does not necessarily have to be. A chronic disease may have acute exacerbation and thus become more acute. A good example of such a case is a person who suffers from bronchitis. For instance, during the winter he may develop a more acute phase of his bronchitis which puts him to bed with a high temperature for a few weeks, after which is is able to go back to what is for him a normal state of acute bronchitis. Therefore, in medical parlance, "acute" is the opposite of "chronic".
§ I hope that I am not speaking for too long on what is perhaps a minor point, but I should like to draw to the attention of your Lordships this kind of case. It is well illustrated by cataract, which gradually (over perhaps twenty years) becomes more and more serious so that sight becomes gradually more limited. Without any kind of change in timetable—any kind of acuteness—, it gradually reaches the stage when it is no longer proper for that person to be driving a motor car. For that reason, I would prefer the words "more acute" to be substituted for the words "substantially more severe". Since putting down this Amendment, I have wondered whether the words "substantially more disabling" would not have been more 529 appropriate, but I am quite happy to leave it to the Ministers in charge of the Bill to supply whatever they feel to be the most satisfactory wording.
§ Before I leave this point, I should like to ask your Lordships not to be put off by the fact that I have used the word "substantially", because whatever words one uses it is not possible to find a term which does not include sonic kind of subjective judgment on the part of somebody. Medical affairs are not black and white. You do not have a cataract which is not disabling on Wednesday but by Thursday morning has become seriously disabling. You have to describe it in comparative terms, even if you go a long way round and say that "it has reached the stage, in the opinion of the person concerned or that of his doctor when …". But you are nevertheless making judgments. I do not think there is any wording which will get us out of that difficulty altogether. I beg to move.
§ LORD AIREDALE
My Lords, I should have thought this was appropriate, for the adjective we normally use in relation to disability is "severe". We do not talk about people being "acutely disabled" but about being "severely disabled", and I should have thought that this was the right language to use.
§ LORD MOWBRAY AND STOURTON
My Lords, the House will be grateful to the noble Lord, Lord Platt, and to the noble Lord, Lord Airedale, for their observations. As the noble Lord, Lord Platt, said, this is a matter of agreeing, and the important thing is to get it right. In all cases, what we are trying to do is to see that there is a duty to declare the onset of a new disability or the worsening of an existing one—and I am talking here of people with licences up to the age of 70. As your Lordships know, this is provided for in the new Section 87(1)(a) to the Road Traffic Act, 1972. In suitable cases, it might well be possible for the Secretary of State to grant an "until 70 licence" to somebody who is suffering from a disability provided that assurance can be given that the Secretary of State will be notified when the disability has worsened so that he may judge when the time has come to exchange the "until 70 licence" for a three year licence 530 or even revoke the licence completely. I am advised that the noble Lord's Amendment incorporating the word, "substantially" would leave a licence-holder free to judge when the time had come to disclose the disability affecting his driving more than it did when the licence was granted. This, I have to explain, would be unacceptable.
The noble Lord, Lord Platt, said that the word, "acute" has special significance in a medical context by contrast to the word "chronic", and that the word, "severe" would be more appropriate. I would completely agree and would not quarrel with those words, but there is, however, no evidence that the words, "more acute" in Section 87(3)(a) of the Road Traffic Act 1972 have created any difficulty. We are dealing with words which are in an Act of Parliament already and have gone through thte test of the law courts. If this were amended, the Act would have to be amended as well. The word before "more acute" removes the possibility of the type of misunderstanding that may be worrying the noble Lord. While therefore "severe" might be acceptable if used in Sections 87(3)(a) and 87(1)(b), there is no case for departing from the well-tried words, "more acute". We feel the addition of the word "substantially" would not be acceptable. I accept that it is playing with words, but, bearing in mind that the test of law is established in this matter, and that it has not given rise to any trouble in the past, I ask the noble Lord to consider this matter and in fact leave it as it is.
On Question, Amendment negatived.
§ LORD MOWBRAY AND STOURTON
My Lords, we have already spoken to this Amendment earlier on. This is the main substance of what we were discussing on Amendment No. 18. I beg to move Amendment No. 36.
§ Amendment moved—
Page 41, line 36, at end insert—
("(2) In the said section 101(7), as it applies in relation to an application for the issue of a new licence made on or after the day appointed under section 27 of this Act for the coming into operation of this sub-paragraph, for the words "three" and "ten" there shall be substituted the words "four" and "eleven".")—(Lord Mowbray and Stourton.)
§ On Question, Amendment agreed to.531
§ Schedule 5 [Variation of penalties for certain offences]:
§ 2.33 p.m.
LORD JANNER moved Amendment No. 37:
Page 52, line 20, column 4, at beginning insert ("3 months or").
§ The noble Lord said: My Lords, perhaps the noble Viscount and your Lordships will agree that in moving this Amendment, which I now formally move, it will be advisable to deal at the same time with the subsequent Amendments on the Marshalled List in the names of the noble Baronesses and myself, as the main points I desire to make apply to them all. I understand that the Government's object in bringing in this new provision is to reduce the number of motor cases at present being heard in the Crown Courts. The way this is being done is by withdrawing from the magistrates' court the right to impose imprisonment, and thus the defendant will not be able to opt for trial at the Crown Court. However, the prosecution will still be able to ask for the case to be heard in the Crown Court on the ground that it is of a very serious nature, or that the defendant has a bad record. It may well be that as many cases will reach the Crown Court as at the present time because, as your Lordships are aware, the number of cases of imprisonment are very small in so far as the magistrates' courts are concerned.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)
My Lords, I do not want to interrupt the noble Lord, Lord Janner, but he is so far on a wholly false assumption. We are discussing a series of Amendments, and he says that the main object is to remove cases from the Crown Court. The first two sets of Amendments relate to cases which cannot go to the Crown Court anyway.
§ THE LORD CHANCELLOR
My Lords, I do not want the noble Lord to be under a misapprehension here, and I am sorry to interrupt him. He said that the main object of the Government in all these Amendments is to remove cases from the Crown Court. That simply is not so. The first two Amendments deal with offences which are already summary, 532 and summary only. I think that should be clearly understood by the House.
My Lords, I naturally accept the point of view of the noble and learned Lord, the Lord Chancellor, and I will deal, therefore, with the first two Amendments. I thought I would save the time of your Lordships' House as much as I possibly could, but apparently that would not be quite in order. As your Lordships are aware, at the present time magistrates are entitled to deal with some cases where custodial sentences can be given by them. The Magistrates' Association, which your Lordships will no doubt know is a highly efficient body representing the vast majority of magistrates in the country, has considered this matter in depth, as has the representing body of the justices' clerks, on a number of occasions. They have given careful consideration to the case put forward by Her Majesty's Government in support of the provisions contained in this Bill, but they are still con-convinced that these contentions do not answer their reasons for opposing the terms of the Bill. The magistrates and justices' clerks have a vast experience in dealing with the type of case which is being considered. Justices' clerks are, in the main, professional lawyers, and of course specialists in cases which come before the magistrates' courts. The magistrates are men and women who have been chosen in consequence of their suitability for this work, who now have to be trained before they are allowed to sit in Court.
Today they sit in the Crown Courts together with the judge, with the result that their decisions on sentencing can out-vote the opinion of the sitting judge. That is an extremely important matter, because in fact what the Government are trying to do now is to say that they are not capable, or that they ought not to be entitled to form a decision in those cases in which imprisonment is involved. They will have that power in the Crown Court, in the event of their disagreeing with the judges. It must be clear that magistrates are anxious to see that the cases are treated in a just and effective manner. I hope that the Government will now accept, on reflection, their proposals, taking what I have said into consideration, as some of your Lordships on both 533 sides of the House who are magistrates have done. They are particularly concerned, as am I, that the removal of custodial sentences will not have the result desired by the Government and themselves. They certainly have no personal interest in the matter, as you, Lordships are fully aware. Their object, as is mine and that of my noble friends, is to have a satisfactory procedure for dealing effectively with cases which come before them.
The Bill provides for the prosecution, but not the defendant, to ask for such a trial as can bring custodial sentence. The magistrates will have the right to decide whether the case shall go to trial in the Crown Court or be heard in the magistrates' court. In view of what I have said, this is obviously not desirable. The variations of what kind of access is taken in respect of a case does not depend only on the prima facie evidence which the prosecution has been able to gather—I would point this out and I hope that the noble Viscount will appreciate the point I am making—but upon the actual evidence which comes out in the court in the course of the hearing of the case itself. It may very well be that the prosecution in presenting its case—I should like to draw the noble and learned Viscount's attention to this because I think it is a very strong point—would not be aware of the serious nature of the offence itself until the witnesses themselves have been cross-examined and the magistrates have put their questions to the witnesses and have seen them and formed conclusions, not only from the verbal evidence given but also from the manner in which the evidence was given. Thus, in a number of cases which the prosecution might have considered not to have justified a sentence of imprisonment, and which would result in the case not being sent to the Crown Court, it might very well have appeared to be clear to the magistrates, on hearing the evidence, that the prosecution had been wrong in deciding the case to be a serious one—wrong, not through any fault of their own, possibly, but because the actual facts and the examination of the facts were not available.
Surely, this is one of the main reasons for a trial resulting in a proper decision. The idea that the imposition of a larger 534 fine alone can provide a deterrent is not feasible, for reasons which I think your Lordships will readily appreciate. What does it mean? Any court, of course, has to decide what sentence is an appropriate deterrent or penalty. It has to take into consideration in the cases concerned what are the financial or other circumstances of the defendant. A fine of £400 could mean very little indeed to a person who is in affluent circumstances, and that person would be entirely protected against any custodial sentence in his case, where trial would be only by the magistrates' court. Likewise, with a man earning £20 or £30 a week, he cannot afford £400 any more than he can afford the present maximum. The maximum fine would have little effect in the majority of cases coming before the magistrates' court, but the important point is that the public will get the impression that bad motoring offences are not now considered to be serious, and this will have a psychological effect on the dangerous driver. It will become known, or it will be thought, that we are going soft or dangerous—reckless in respect of reckless and drunken driving.
In addition to what I have just said, there are certain side effects of the withdrawal of the right to imprisonment in a magistrates' court which are of great importance and which have not been dealt with by the Government; nor is an Amendment down of any nature to cover the points. That is the problem of people who do not pay their fines. How are the Government going to deal with the position? It means, obviously, that people can ignore the imposition or the result of the imposition of a fine, and they cannot in many cases—in most cases, if not in all—be brought to a court for the purpose of an imposition other than the fine. If this Bill is passed in its present form a person who does not pay his fine cannot, as I understand it, be brought back by warrant to the court. It may be that the Government have another explanation of it, but that is my view of the matter. He may come from an unknown address.
I think an Amendment should be passed to give the magistrates' courts the right to issue warrants. I say this in passing. At present they are not in a position to do that; they would not be in a position to do that if the Bill were carried as it stands at present. The taking away of the right to imprison would also take 535 away the right of the court to detain a person for various motoring offences. This would prevent courts from making detention centre orders, attendance centre orders or community service orders. At one stage the noble Viscount said that he was considering this matter with regard to detention orders (although he later withdrew it with regard to detention orders); but what has happened? We are faced at the present time with a position which does not cover those points at all, and consequently the situation is not being met.
The Minister may recall that the London branch of the Magistrates' Association conducted a survey in depth on the two senior attendance courses, at Greenwich and at Manchester, and drew up a report which strongly recommended that more senior attendance centres should be opened, where there should be attendances on Saturday afternoons for two or three hours at a time until the full number of hours had been completed. The Home Office decided that as they were then about to bring into force community service orders they would not open more senior attendance centres until the experiment of community service orders had been tried. Senior attendance centres are used to a very considerable extent for persistent road traffic offenders, not necessarily for the more dangerous offences. It therefore follows that the Government expected such offences to receive community service orders. This will deprive the Bill of a very useful treatment for the young offenders in the adult court, both as regards the attendance centres and the community service centres. Detention centres where a defendant can be sent for three or six hours are also frequently used for motoring offences and they act as a useful deterrent for the young offender, to prevent him from getting deeper into crime. These, too, will not be available for use.
Perhaps even more important is the effect on the juvenile courts, where attendance centre orders and detention centre orders are useful forms of treatment for motoring offences. Juveniles who make a habit of riding without "L" plates, without a supervisor, with falsified licences and who indulge in various forms of road traffic offences are being dealt 536 with in this way. By taking away these powers from the juvenile courts, what are they left with? They are left with fines, or making a supervision or care order, which in effect to-day means very little indeed.
When the Children and Young Persons Act came into force the dates for bringing into effect the various provisions were left open. One of the provisions was abolishing detention centres. I would point out to the noble Viscount that this Government decided that not only should junior detention centres not be closed but that more should be opened. In other words, there has been a decision for the time being that detention centres are very useful treatment centres for juvenile offenders. As I have said already, motoring offences are offences for which the juvenile court can make a detention centre order and it is quite absurd that these powers should be taken away and the juvenile court left practically powerless. There would seem to me to be no reason why the Government cannot support this Amendment and restore to the adult magistrates' court and juvenile court the possibility of imposing some useful deterrents and treatment, even if they did not send the adult to prison. I greatly hope that the Government will think this imperative.
My noble friends and I have confined the Amendments to what we consider to be some of the most serious matters, matters which involve personal injury. I am sure my noble friends will be talking about other matters, but the Amendment I am moving at present deals with failure to stop when an accident has occurred. Why this should be considered in the manner in which the Government want to deal with it I cannot understand. This is not a matter of deep research. Everybody knows very well, and certainly anyone who has practised in a court knows very well, that it is a most serious thing for a person to fail to stop when an accident has occurred. It may very well mean that a person has been killed in consequence of that accident, and if the driver neither stops nor gives a report, then obviously he is committing a most serious offence, even though he may be innocent of anything which may be considered a crime in consequence of what took place. But the fact is that these cases are not infrequent. It is an extremely serious 537 matter, as are the other offences to which I have referred.
My Lords, we are coming towards the end of the consideration of this Bill in this House. We have left out a very large number of offences—I have a list here—and there are dozens of offences with which we are not proposing to deal at all. Perhaps they may be considered later on in another place. They may consider that some other offences ought to be dealt with in a similar manner to the offence in this Amendment. But surely the time has come when the Government must realise that they must take the opinion of experienced people, the man or woman who is daily on the job and who knows what is happening, who has had the handling of these matters and has never abused them but who is going to have his or her hands tied if the Bill remains in its present form. In these circumstances, the House will undoubtedly come to the conclusion that this and the subsequent Amendment should be accepted. I beg to move.
§ 2.54 p.m.
THE MINISTER OF STATE (HOME OFFICE) VISCOUNT COLVILLE OF CULROSS)
My Lords, I wonder if I could intervene at this stage, because at the end of the debate the noble and learned Lord the Lord Chancellor, I think, would like to contribute to this discussion. I ought to tell the House the results of the thoughts that I promised the noble Baroness I would have about some of the points she has raised, but perhaps I may first say a word about the speech of the noble Lord, Lord Janner.
I entirely agree with him that he has picked the hard core of this offence. I am not absolutely sure that tampering, which is the subject of an Amendment, is part of the hard core, but for the most part I agree that here we are really dealing with the crux of the matter, and the noble Lord has selected it, quite rightly. I also entirely understand that this is a matter upon which people feel very strongly. I hope that there is no thought among the body of magistrates that there is some exercise here by the Government whereby we are denigrating the good sense and the experience of the magistracy; that we are in some way undermining their status; that we are devaluing their position; that we are "knocking" the magistrates. There is absolutely 538 no question of this, and I said so on the previous occasion. I see the noble Lord nodding his head, but I must emphasise this part, because it is too awful that anybody should think the Government are doing this. We have no doubt whatever about the value of the magistrates' experience, and the work they do; it is immensely appreciated, and there is no question of our trying to undermine them in any way.
My Lords, would the noble Viscount permit me? I am sorry to interrupt and I am grateful to him for allowing me to do so. I do not think anyone would suggest that there is any denigration intended by the Government. What we say is that unfortunately the noble Viscount and his colleagues have not appreciated the points that have been made by the magistrates, who are really in a better position, if I may say so with due respect, than those handling the matter for the Government.
VISCOUNT COLVILLE OF CULROSS
My Lords, I have made that point. I will now come to those points, in a minute, if I may. I do not think we have failed to appreciate the points; I think we have appreciated them perfectly well, and I should like to set out the arguments on them.
It is just worth repeating (I do not want to go through the whole of my speech in Committee) that if it is a matter of showing how serious one considers these offences to be, there is the provision for a greatly increased fine and there is a retention of the power to go on indictment to the Crown Court. May I just say that if we are really arguing this point on the basis that the prosecution did not know, until it heard the evidence cross-examined or the witnesses questioned by the magistrates, that this was a very serious offence, then I am afraid I do not think the cure for this is to retain the power of imprisonment in the magistrates' court; the cure for that is to get rather more efficient prosecutors. Because, quite frankly, if they did not realise that this was a very serious offence, having looked at the evidence which they themselves collected and were going to present, having looked at the record of previous convictions, I am afraid it is not an efficient prosecution. It cannot quite honestly be argued upon that basis.
539 Let us look at some of the details of what the noble Lord has been arguing about. I am not going to give all the figures again about the number of people who were imprisoned, because I did that before, and I think I probably convinced the Committee on the previous stage that this is in fact a power, whether it is actual instant imprisonment or indeed suspended imprisonment, which is used very seldom by the magistrates and very much as a last resort. The noble Baroness, if I may say so, on the last stage of the Bill really gripped this subject when she said, if I may paraphrase her, I hope accurately, that the magistrates do not want the power to imprison simply for the sake of imprisoning people. That is what the Government say, too, and I cannot make this too clear. We wish to take an opportunity that we have in the Road Traffic Bill to do away with the power to send people for short terms of imprisonment when we think that there is no requirement to imprison them for the protection of the public. This is our stated general policy. We wish to implement it on occasions when we think we can, and here we have such an occasion.
Let us look at some of the consequences of trying to carry out that policy and to put into practice what we preach. Let us first of all see about the burden on the Crown Court. Again I am not going to go into the statistics. The noble Lord, Lord Janner, has just suggested that the result of this Bill may very well be that there will be as many cases in the Crown Court as there were before. I should be surprised if this were so. It is really my noble and learned friend's sphere of activity, but why is it that 96 per cent. of the options to go for trial for the drink and drugs offences under the Road Traffic Act go at the election of the accused, the defendant? Only 4 per cent. go on indictment at the election of the prosecution. Why is it that 100 per cent. of the dangerous or reckless driving cases that go to the Crown Court go on the election of the defendant, and nil per cent. on the election of the prosecution? Does this indicate that if we make this change we are going to have the same, or anything like the same, number of cases tried by 540 the jury in the Crown Court? I would suggest ont.
Let us look at one or two of the other consequential but, I accept, extremely important matters that I promised the noble Baroness I would look at. I accept that if one removes the power to imprison one removes a number of other things as well. I have considered very carefully with my advisers whether there is any way round this difficulty. I should like to tell the noble Baroness and others who are interested the conclusions we reached. I am afraid they are very disappointing, but this is not for the lack of my trying. I hope that this may be accepted.
First of all, let us take the community service orders. I agree that community service orders are, so far as we can see, very promising, or reasonably promising, as an alternative to imprisonment. But those who took part in the discussions on the Criminal Justice Bill last year will know that these orders were specifically tied to a situation where otherwise the person would have gone to prison, either directly or on a suspended sentence, and they were intended to be a replacement for prison. The whole experiment—it started in six areas—has been worked upon that basis. The magistrates are operating it on that basis, and the whole thing is being monitored and tested on that basis, to see whether it is a viable alternative to imprisonment. We shall never come to any sensible conclusion about this if we change our datum in the middle.
I have been convinced by those who say that we cannot now change the criteria upon which community service orders can be imposed. No longer are they to be the result of the tremendous discussions that took place on the Criminal Justice Bill on this subject only eighteen months ago. No longer is this to be maintained any more. We are totally to change the situation. If we are to test out these community service orders, to see whether they are effective—and I pray that they will be—we must stick to our guns and use them as a genuine alternative for imprisonment, at any rate until we have experimented with them. With a slightly heavy heart I have to come down in favour of the argument that we must keep these as an alternative to imprisonment. Therefore, if imprisonment goes, then the power 541 of the magistrates on these road traffic offences to use the community service order must go, too. It is logical, and I think it is logic that makes sense.
Then we have the whole area of the young offenders. Here again I should dearly like to be able to report some progress. I know that there are in the detention centres and borstals a fairly substantial number of young men who have committed road traffic offences. May I preface this part of my remarks by saying that if what they have done is to take conveyances without consent, which is what many of them have done, this offence is prosecuted under the Theft Act and not under the Road Traffic Acts, and it is not covered by this provision. So that we can leave that out of account altogether. That is quite an important consideration, because quite a number of those who are in the young offenders establishments are there for that offence. They may have been sentenced for dangerous driving as well, but the reason they are there is because it is a t.w.o.c. case.
What about the rest of them? Borstal was never available to the magistrates: they have to commit to the Crown Court. The detention centres at the moment are available, but they are imprisonment, There is no doubt, if you read the letters of those who are in a detention centre, that they regard it as imprisonment; and so do their parents. And, I must say, when I have been to see them so do I, Let us see on Lord Janner's case how much use the juvenile courts that the noble Lord was talking about have made of this power. In 1972 there were 19,000 cases of motoring offences and 300 junior detention centre orders were made. Again, my Lords, this is the very margin of the activities of the courts and it is only in very extreme cases that they make these orders.
Regarding attendance centres, the same 19,000 motoring offences for the junior attendance centres (that is from ages 14 to 17: the juvenile court cases) only 184 orders were made. That is to say in 19,000 cases in those two categories, only 484 attendance centre orders were made. This is very much in line with the general penalties being handed out by magistrates to offenders as a whole. I have to add that we are expecting the Report of the Advisory Council on the Penal System very soon. In this Bill I have to 542 resist legislation which changes the penalties available to the courts for young offenders, because we must wait and look at this matter as a whole. I should not be surprised if the noble Baroness, Lady Wootton of Abinger, were to agree with me on that. We want to debate the whole subject and get the thing straight.
VISCOUNT COLVILLE OF CULROSS
Yes, my Lords; but the public have not. Therefore I have to add this footnote that on the young offender side we must wait and we ought not to make a change by this Bill. The noble Baroness mentioned hospital orders, and I have looked this up, too. In 1972, I think, about 1 million cases came before the magistrates' courts. That total includes motoring cases—it may be that there were 1 million motoring cases. Only four hospital orders were made, and I should have thought that such orders, which have to be based on a certain amount of medical knowledge in advance, meant that the cases were suitable for indictment. Therefore I think we are at the very fringe of the problem.
§ BARONESS PHILLIPS
Would the noble Viscount permit me to interrupt him, before he extends his argument, which is very convincing? I think we all know that the moment you change powers of punishment because you have not needed to use them very much until then, the very next day you get a case about which you say, "If only we had been able to do this …". I think it is a slightly dangerous argument; one could almost say that we do not really need as many laws as we have because so very rarely do we have to deal with people under them.
VISCOUNT COLVILLE OF CULROSS
My Lords, I hear my noble and learned friend saying that we do not need so many laws, and I should think he is absolutely right; and I certainly agree with him.
But may I come on to the last of the consequentials, which is the question of finance? I know that magistrates feel very strongly about this aspect. I have looked into this as well. The only thing that is lost is the power to compel attendance before the fine is imposed. That 543 can be done only if there is power to imprison. Take away the power to imprison, while you can fine somebody in his absence you cannot compel him to be there. On the other hand, if he does not come, he fails to attend at his peril, because the magistrate can impose whatever penalty he thinks fit and the defendant has no opportunity to complain that he cannot afford the fine or to ask for time to pay. That is the only thing that is lost.
Let us see what is not lost. Without his attendance the magistrates are not empowered to disqualify him from driving. Therefore if he is not there he cannot be disqualified: he has to be sent for, and he will not be disqualified unless he turns up. Equally, if he is fined, either in his presence or in his absence, he can be arrested and brought before the court if he does not pay. So the only thing that is lost is the power to compel attendance before the fine is imposed. And I would just add, finally, that of course if the defendant is arrested because he does not pay and is then brought back to show cause why he does not pay; and if the magistrate goes through the assessment of means and all that sort of thing, and gives him time and the defendant still does not pay, he can be sent to prison for default under the ordinary fine enforcement proceedings. It may be marginally more cumbersome, but there are still substantial reserve powers to deal with people who do not pay their fines to bring them before the magistrates to explain why and, if their explanation is not satisfactory, to send them to prison.
My Lords, I am obliged to the noble Viscount for giving way. Does the Bill enable a warrant to be issued for the arrest of a person who has failed to pay a fine?
VISCOUNT COLVILLE OF CULROSS
No, my Lords, because the existing law does. There is no necessity to change the law; that matter is perfectly satisfactorily dealt with under the law as it stands. I have accurately explained the position so far as I know. Of course I shall apologise if I am wrong, but I believe my advisers have got it right and that I have accurately set out the situation.
544 There it is, my Lords; this is the argument. I went through the figures and the arguments at Committee stage. I know that feelings are very strong on this matter. I suggest to the House that the number of occasions on which magistrates wish to use custodial penalties are precisely those cases which can be identified by an efficient prosecution beforehand and dealt with on indictment; that we are reinforcing our view of the seriousness of these offences by putting up the fines; and that we have, albeit a little reluctantly, come to the conclusion that we have on non-custodial sentences. I should just add that day training sentences remain, because they are not dependent upon prison, but apart from that I have been through them. I cannot go into details, but the reasons are I think fairly valid reasons, or at any rate they are respectable, and can be argued. It is now for the House to decide: do we or do we not wish to take this opportunity to take away prison as a penalty where we think that there is no requirement that the courts should have it in their powers? That is the issue.
§ BARONESS WOOTTON OF ABINGER
. My Lords, I must apologise for not having been present at the beginning of this discussion, but I gather we are discussing a series of Amendments together.
§ BARONESS WOOTTON OF ABINGER
My Lords, I thank the noble and learned Lord. I should like to say that it seems to me that they are on a rather different footing, and that the case is very much stronger in regard to No. 37, which I think is the one immediately before the House, than it is in regard to some of the others.
§ BARONESS PHILLIPS
My Lords, I think we are adding confusion to confusion. Originally, we asked if we could move these Amendments together. The Lord Chancellor pointed out that of course there was a difference, and my noble friend then said that we would deal with the first two. So we are not discussing the last batch of Amendments.
§ 3.14 p.m.
§ THE LORD CHANCELLOR
My Lords, I am very much obliged to the noble Baroness. I was under the impression (I shall be corrected if I am wrong, but I gather I am from what the noble Baroness says; and it is important to me, because I have got to put the Question) that we were discussing the series but voting separately on the individual Amendments. But if it is now the case that we are discussing only Nos. 37 and 38, then I hope that we shall act on that basis and discuss the later ones later. It may be more convenient, because the reasoning behind the later ones is certainly quite different from the reasoning behind the first two.
VISCOUNT COLVILLE OF CULROSS
Except this, my Lords, that I hope I shall be forgiven if I do not make another speech.
§ BARONESS WOOTTON OF ABINGER
In those circumstances, my Lords, am I in order in speaking solely to No. 37?
§ BARONESS WOOTTON OF ABINGER
I thank the noble and learned Lord. No-one could be more enthusiastic about community service orders than I am, and for very good reasons, and nobody could be less enthusiastic about sending people to prison who are not a danger to the community. But I would suggest that a person who demonstrably is a danger to the community is a person who fails to stop after an accident. A great deal depends, I know, upon the nature of the accident. It can be quite trivial; and in these cases the magistrates impose a fine and nothing further happens. The person found guilty is probably very shocked by the proceedings, and is no danger to the community. But we all know of cases where people cause accidents and very serious injuries and fail to stop. I should have thought that this sort of case—a very much stronger case than the other situations covered by these Amendments—was one in which a reserve power for the magistrates to imprison should be kept. It is quite true to say that the prosecutor would realise the seriousness of the case and ask for it to be sent to the Crown Court.
§ BARONESS WOOTTON OF ABINGER
In that case, my Lords, I misunderstood the noble Viscount. There seems to be a slight difference of opinion between the legal authorities.
§ THE LORD CHANCELLOR
My Lords, my noble friend has failed to read his brief. I am only looking at the brief. We are talking about Amendment No. 37. The brief says that both these offences are purely summary offences.
VISCOUNT COLVILLE OF CULROSS
We really must get this straight, my Lords. This is absolutely right, but the others on which I was also speaking are hybrids. I was talking about indictments because I thought that we were discussing all the Amendments. It is perfectly true that the first two are not hybrids, but those in the other Amendments are.
§ BARONESS WOOTTON or ABINGER
My Lords, now that our learned legal authorities are of one mind, this strengthens my case, because the let-out of the case going to the Crown Court is no longer available.
§ THE LORD CHANCELLOR
My Lords, I am not anxious to weaken the noble Baroness's case. I was asking that she should not proceed on a false hypothesis, even if it was strengtheing her case to do so.
§ BARONESS WOOTTON OF ABINGER
My Lords, I am sure that the learned and noble Lord always acts with judicial impartiality. May I come back to my case; that is, that the offence of failing to stop after an accident varies from the trivial to the extremely serious. It is true that magistrates may impose very high fines, but experience shows that the maximum fine imposable for any offence is usually a very long way away from the maximum fine actually imposed for an offence. I should have thought that if we were going to accept the principle—which I would fully endorse—that one only imprisons in extreme cases persons who are a danger to the community, here we have such a case. Magistrates can imprison persons who burgle houses. No, I am wrong—magistrates cannot imprison persons who burgle houses; they can imprison persons who burgle premises other than dwelling houses. I should have thought that a person who causes serious accidents involving injury is a 547 great danger to the community. He may be well-to-do and quite able to pay a fine of £100, or a fine of £50 or £60, which is more probable, and he may not be deterred from acting in the same way again. I would strongly urge upon the House that this Amendment is one which stands rather in a class apart from those which follow.
§ LORD COLLISON
My Lords, I did not intend to speak in this debate, but may I quote two examples which I know personally, and then bring them together? Rather late one night my wife and I parked at the kerb in order to look at a shop. She wanted to do so. We both got out of the car, fortunately. Just at that moment a driver came along at about 70 m.p.h. and drove smack into the back of my car on the offside wing. He almost ran up the wing. I saw this. He slid off, went on, and no one ever found him. No one was hurt.
The other example I want to quote is the case where my wife and I were coming home again late one night when the roads were deserted. We saw a very serious accident. I should not like to say which driver was at fault, but a car crossing the main road double carriageway was hit in the rear portion very hard by another car again travelling at great speed. In this case the person had to stop because his own car was damaged and he was injured. It so happens that my wife and I were the only people there.
I combine these two stories because this is exactly what would have happened had my wife and I been in my car on the other occasion. There were four people in the car in front. The man in the front nearside seat was clearly dead. A young girl had come through the back window of the care. Her legs were hanging over the back of the seat and her body was curved over the bonnet. She was bleeding very badly from the mouth. There was simply no one there except my wife and I. I held that girl in a horizontal position while my wife rang for an ambulance. I held her for 20 minutes at least, and your Lordships may imagine the strain that caused. But later I had the satisfaction of learning from the hospital that my action had undoubtedly saved her life. I think that any driver with a sense of what should be done surely would report such an 548 accident. Having looked at the Schedule I see that the fine which may be imposed is now £100. Both morally and also from the point of view of the damage which may be caused one asks, "Is this enough?" If there is an answer, in the sense of action capable of being taken elsewhere, I should like to know. I apologise for intervening, but this is a matter of which I had personal experience. It was a shocking experience and so I was moved to say the few words that I have said.
§ THE LORD CHANCELLOR
My Lords, clearly the House will have listened with a great deal of sympathy to the noble Lord, Lord Collison. It must indeed have been an agonising experience, at any rate on the second of the two occasions which he described. Nothing which I am about to say is designed in any way to qualify what I have just said. But I think that we must try to clear our minds about these first two Amendments and what we are talking about and what we are not talking about. My view has always been that this kind of Amendment in this kind of case is very much overdue. May I say two things by way of preface. I share to the full the respect and admiration for the Magistrates' Association expressed by the noble Lord, Lord Janner. As the noble and learned Lord whom I see below the Gangway will know full well, Lord Chancellors are President of that Association ex officio. I do not think that they could carry on their work in this particular department of their business were it not for the mutual co-operation and respect with which the Lord Chancellor's Office and the Magistrates' Association regard each other. Therefore, nothing that I say must in any way be construed as critical either of the Magistrates' Association or of magistrates in general. When I refer to them separately it is because I believe that the Association is a 98 per cent. "closed shop". So, happily, there are few magistrates who are not also members of the Magistrates' Association.
The other thing I want to say is that I do not want in any way to deny the basic seriousness of the two offences or the three offences which we are discussing under the first two Amendments; under Section 25(4) of the principal Act, failing to stop after an accident and 549 giving particulars or reporting the accident; under Section 9, tampering with motor vehicles, and regarding the second of the two Amendments, driving uninsured or unsecured against third party risks. These are serious matters and they are commonly dealt with by monetary penalties of a relatively serious kind. Part of this exercise is to ensure that they are covered by monetary penalties rather more serious either than the maximum now allowed or that magistrates commonly inflict.
May I also say that I am commonly depicted by people who criticise my utterances as being a sort of hard-liner on crime who spends his time chewing glass and bleeding at the mouth. The fact of the matter is that I do not want to be soft on crime at all. But, equally, if anybody knows the state of our prisons at the present time and if anybody reflects on the little value to a man's or girl's or boy's character by taking away their liberty for three months and then letting them out again, all I can say is that they would be as keen as I am to get rid of short sentences of imprisonment whenever we can, partly because it does no good to the criminal who is treated in this way—if he is going to prison, he ought usually to go for a longer period—and partly because it makes almost impossible the task of those who wish to make our prisons, badly designed and disgustingly sanitated as they are, slightly more civilised places. I feel that strongly, and I think we are losing sight of it in talking about relatively minor motoring offences. I start therefore with the strong conviction that prison is altogether inappropriate in these cases. I also say that it is quite wrong to talk as if we were taking away from the magistrates their right to send to prison. That is not what we are doing. We are stating, if Parliament supports us, that we do not think prison is an appropriate penalty to impose for a type of offence. That is Parliament's business and, with the greatest respect to the Magistrates' Association, not magistrates' business.
As a matter of fact—and I can speak with a long experience of magistrates' courts going back to 1933—I have never known a sentence of imprisonment inflicted for any of the offences covered by these two Amendments, although I think some of them were not offences during part 550 of my experience at the Bar. I find that my experience is incomplete, because taking failure to stop, which the noble Baroness described as the worst offence, I find that there were 13,500 cases of conviction in 1972 for that offence, of which 38 only were sent to prison—something like 2 per cent. I ask the House to consider what this reflects. Does it mean that a given bench of magistrates, having 100 such cases in the course of about five years, will select two appropriately bad ones and send those miscreants to prison? My Lords, it does not. Do not let us deceive ourselves. The reality is that it reflects a slightly inconsistent sentencing policy on the part of some benches. What in fact one wants to avoid more than most things is an inconsistent sentencing policy about relatively minor offences in different parts of the country. If prison is used as a deterrent to that extremely limited extent, I should have thought that the case for abolishing it was absolutely overwhelming.
My Lords, I move on from that to the arguments used by the noble Lord, Lord Janner. He began by talking about the alternative sentences which the noble Baroness talked about in Committee stage. I share most of my noble friend's predilection for these novel methods of sentencing, but I should like to put a rather more broad and perhaps philosophical point about the treatment of the young in magistrates' courts, These alternative methods of dealing with young people—community service and attendance centres—are designed as alternatives to prison. I beg the House to accept that they are not designed as additional nasty ways of treating young people. They are designed in order that when a young person comes before you for whom prison would otherwise be the inevitable sentence, you give him something other than prison. They are not designed to substitute, in a case where an adult would get a fine, a kind of alternative to prison for a young person. It is by treating young people in this way that magistrates get themselves a bad name. Young people are to be treated for the purposes of sentencing at least as kindly as adults, and I should think more so.
The next thing I should like to say is this. What one has to consider in this 551 case is not the kind of horror put forward by the noble Lord, Lord Collison. Quite obviously, if a man drives dangerously, drunkenly or carelessly, fails to stop and is later caught, he ought to be prosecuted for failing to stop. But that is not the case you posit when you are discussing the maximum penalty for that offence, because if the man is caught he will be punished for driving dangerously, drunkenly or carelessly, and, I hope, punished severely. The case you have to posit for the logical discussion of an offence of this kind is not the case where the man has driven dangerously, but the case where he has not driven dangerously and can be prosecuted only for failing to stop, unaccompanied by the aggravation of any other crime. The question that the House must face is not what you would do to such a man if he had driven dangerously: the answer is that you would treat him as having driven dangerously, and this offence would be subsumed under the dangerous driving offence and a nominal penalty, perhaps, attached in addition to cover it. But you have to consider the case where he has done nothing else except fail to stop. If you really face that issue, my respectful submission to the House is that, in the light of sentencing policy which we have been trying to persuade the public of for years now, short sentences of imprisonment are to be avoided if possible and the only answer you can give, if that offence is isolated from any other criminal offence, is that the person ought not to be sent to prison.
§ BARONESS WOOTTON OF ABINGER
My Lords, it is with very great diffidence that I interrupt the noble and learned Lord, but I think it must be some time since he has heard these cases in the courts. It is a fact that the only convincing evidence that can be brought before the court is evidence of failure to stop, although there may have been a very strong probability that he drove dangerously, and so forth. I do not raise the question of drunken driving, but where very serious injury has been caused to somebody and the driver has not stopped, I think the noble and learned Lord will agree that there is a great a priori probability that he has a sense of responsibility or guilt about it, and in any case it is the only charge which will lie.
§ THE LORD CHANCELLOR
My Lords, I am afraid the noble Baroness is shocking me more than I liked to be shocked. If there is no evidence that that man drove dangerously, he must not be punished for another offence on the assumption that he may have driven dangerously. If the only charge which lies is failing to stop, and nothing else, then I would submit that prison is an inappropriate sentence and that a sentence of three months, even if you inflicted the maximum, would do no good. This is an attempt to turn away from the sentencing policy, about which I had thought Parliament was fully agreed, and to do it in relation to an offence for which custodial sentence is totally inappropriate if it stands by itself. If it does not stand by itself, then I respectfully submit to the House that the penalty should be inflicted for the offence which is proved and not for any offence which may be suspected.
I fully agree that the offence of failing to stop is one which ought to be treated seriously, and I hope I have said nothing which does not imply that. That maximum penalty is being multiplied by four, but I still maintain that the maximum penalty for that offence alone ought to be a monetary penalty. The noble Lord, Lord Janner, attempted to ask: "But what if he does not pay his fine?" Apart from the technicalities, which have already been answered by my noble friend so I will not repeat them, the short point, as my noble friend demonstrated, is that that situation arises when anybody is fined. That, if it is to be accepted, would be an argument against fining anybody. The fact is for a very large number of offences a fine is the penalty inflicted by the court; indeed, for a very long list of offences it is the only penalty the court may inflict. In my respectful submission, to say that the fact that a man may not pay his fine is a reason for imposing a sentence of imprisonment in the first instance, is to put the cart before the horse and move away from the kind of liberal approach to sentencing policy which I feel sure we all want to see. I submit that on these two cases the sentence of imprisonment is obsolete. The length of sentence contemplated will do more harm than good, and the power should be swept away, as in many other cases where there 553 is an option to send to prison for three months.
§ BARONESS BIRK
My Lords, there are two points which I, as a serving magistrate, feel that the noble and learned Lord, with respect, seems to have overlooked. Regarding his very able argument about the use of such alternatives as the community service order, and that it should be used only instead of imprisonment, I think he is overlooking the great difficulty that many magistrates' courts are in every day in these particular times when they do not want to send people to prison. So far as I am concerned—and a great many colleagues in my court and in other courts take exactly the same view—magistrates get to a stage where they are either at the end of the road with, for instance, a young person, and the idea of paying a fine or even a disqualification has either been tried before or does not work, and they want to use the community service order instead of imprisonment. It becomes a fatuous argument to say that the courts would send them to prison. Taking it quite coldly, magistrates may want to say that the person should be sent to prison, but in fact they would rather use a community service order instead. They cannot do so, however, because according to the Criminal Justice Act the order can be used only instead of imprisonment. I would say that this and that provision ought to be made for magistrates' courts to be able to use these alternatives.
§ THE LORD CHANCELLOR
The noble Baroness used, perhaps inadvertently, the example of driving while disqualified. Nobody denies that prison for driving while disqualified is an appropriate sentence; that is not what this Amendment is dealing with.
§ BARONESS BIRK
I did not say that, my Lords. What I said was that we had often tried disqualification; that has been used but then the person comes before a magistrate for another offence. I think this means that the whole aspect of sentencing ought to be looked at. Why on earth do the Government not wait for the James Committee Report? The James Committee are sitting at the moment.
§ THE LORD CHANCELLOR
My Lords, I am sorry to interrupt the noble Baroness, but the James Committee have 554 nothing to do with this Amendment at all.
§ BARONESS BIRK
I am sorry; I am confusing the Amendments.
My Lords, I do not want the right of imprisonment: I want the right to be able to use other methods. I also want the right to be able to compel the defendant to come to court, not on a warrant when he or she has not paid a fine, but to ensure they have to go to the trouble of coming to court. For many people the actual appearance in a court is really part of the penalty. I object to what I call a "post office method" of dealing with these matters. As the noble Viscount said, the defendant cannot be compelled to attend, and that does away with what should be in some cases a more personal relationship between the court and the defendant.
§ 3.40 p.m.
My Lords, with the greatest respect to the noble and learned Lord the Lord Chancellor, I beg to disagree with the conclusions he has formed from some of the arguments he has used. Let me put it in a simple form. If, in fact, the magistrates have sentenced very few people to imprisonment, although there have been many cases and many offences committed, does it not show that the magistrates themselves are capable of deciding whether imprisonment should be inflicted? They have experience and ability. I say this with the greatest respect, but some of us have practised in their courts, and know this to be the case. The fact of the matter is that magistrates have before them thousands of cases a year and they do not sentence people to imprisonment unless they are satisfied that this is the only way in which the case can be dealt with. Under this Bill they are deprived of that possibility. I say that that is entirely wrong.
With regard to the point the noble Viscount made in relation to failing to stop, if a person fails to stop he may regard it as a trivial matter, and motorists, unless there is a possibility of sentencing a person to prison for this offence, will regard the whole thing as trivial. It may well be that the consequences of an accident have not been fully understood by the person who has failed to stop. It is highly essential that any person who fails to stop should be 555 liable to a term of imprisonment if the magistrates think this is appropriate, apart from any other offence which he may have committed. This is my view and I think it is the view of the magistrates and they are entitled to express it. I do not want to detain the House any longer; we are getting towards the end of the day. Many arguments could be used. I am hoping your Lordships will go to a vote on this matter. I am sure your Lordships will agree that the magistrates—the practical people in these matters—should not be deprived of the possibility of imposing imprisonment, which carries with it the points that have been made about the detention and other orders.
§ THE LORD CHANCELLOR
My Lords, before I call the next Amendment I think my noble friend wishes to make a statement.