§ 4.3 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, I beg to move that this Bill he now read a second time. The Bill covers two major areas, and each derives from an important report. First, Parts I and II implement recommendations in the Law Commission's report on conspiracy and criminal law reform. Second, Part II and several of the Schedules give effect to the major recommendations of the 802 James Committee's report on the distribution of criminal business between the Crown Court and magistrates' courts. The Bill also touches on a number of other important subjects, but these reports provide the main themes of the Bill. Ministers are often called on to explain why this or that report has still not been implemented, so I hope I may be forgiven for pointing out that the two reports on which most of this Bill has been based were published as recently as March 1976 and November 1975.
I turn, first, to Part I of the Bill. This follows thorough and, as yet, incomplete study of the law of conspiracy by the Law Commission. There have been six consultative working papers as well as the report earlier this year. Further recommendations on conspiracy to defraud, and offences against the administration of justice are expected in due course. We owe the Law Commission a debt of gratitude for their thorough work and for their helpful tradition of extensive consultation on the basis of their draft proposals. Part I tackles the two major criticisms of the law of conspiracy, first, by limiting conspiracy to an agreement to commit a criminal offence and, second, by linking the penalty for conspiracy to the penalty for the completed offence.
In consultation, the Commission found general support for the proposition that it should not be a crime for two or more people to agree to do something which it would not be a crime for one of them to do. Clause 1 creates a statutory offence of conspiracy in place of conspiracy at common law which, in general, is abolished by Clause 5. Under the present law, the penalty for conspiracy is generally at large which means, for example, that an unlimited sentence of imprisonment may be imposed for conspiracy to commit a summary offence for which imprisonment may not be imposed at all. Clause 3 contains comprehensive rules to determine the maximum penalty for any conspiracy by reference to the penalty for the object of the conspiracy.
I turn now to Part II of the Bill. This modernises and amends the criminal law about entering and remaining on property. The Law Commission's work on the common law offences of forcible entry and detainer, and the related Statutes, which are abolished and repealed in 803 Clause 13, began as a task distinct from the work on conspiracy. As a result of the decision on conspiracy to trespass in Kamara v. Director of Public Prosecutions, the subjects were linked. The five new specific offences in Part II take account of the abolition of conspiracy to trespass in Part as well as the abolition of forcible entry and detainer. As in the case of Part I, Part II contains only minor changes from the clauses annexed to the Law Commission's report. The offences in Clauses 6 to 10 cover violent entry on to premises, a failure to leave premises at the request of a displaced residential occupier, trespassing with a weapon of offence, trespassing on diplomatic premises and the obstruction of court officers executing an order for possession against unauthorised occupiers.
I should like to pause for a moment on the offence of refusing to leave premises in Clause 7. This, I know, has aroused widespread interest. As the Law Commission recommended, the scope of Clause 7 is very limited. It will be of assistance to the lawful occupier of residential premises and then only if he had been living in the premises before the trespassers arrived. The Government are not committed to the view that the criminal offence in Clause 7 ought inevitably to remain as narrow as this. There is increasing concern at the consequences of unauthorised antisocial squatting. There may be some scope for further improvement in civil procedures, though it is at present unclear whether this can provide a sufficient answer. The Government will wish therefore to hear the views of both Houses on whether, taking into account the undoubted difficulties of extending the criminal law in this sensitive area, there is a need for wider provisions in place of Clause 7 to deal with squatting which seriously impinges on the rights of individuals and which prevents local authorities from discharging their responsibilities. During the passage of the Bill we intend to continue consultations about the problem with the local authority associations and the police.
The clause could be extended in a number of ways. For example, the offence could be extended to deal with cases where squatting was preventing a new owner or tenant, as opposed to a displaced residential occupier, from 804 moving into his house. A wider extension, which would need even more careful examination, might cover areas where squatting was interfering with the proper management of the public housing sector. It is our policy to encourage authorities to make the fullest possible use of their stock, including, for example, letting to responsible groups of licensees. There are, however, different considerations where unauthorised squatting affects the ability of a housing authority or registered housing association to discharge its responsibilities towards the community, for example, by holding up letting procedures or impeding the planned progress of improvement or other works, especially where contracts have been let. We shall wish to scrutinise any detailed proposals that are made to see that there are satisfactory safeguards against abuse. Subject to that proviso, the Government will consider whether or not the Bill ought to be amended in the light of the views of Parliament and other interested groups.
Before I go any further, perhaps I can say something about the Government's decision not to legislate on the basis of Part III of the Law Commission's Report on Conspiracy at the same time as on Parts I and II. It was clear to the Government that the introduction of legislation along the lines of Part III of the Law Commission's Bill would be bound to raise more fundamental questions about the general law on obscenity than it was the task of the Law Commission to examine in the context of its review of the law on conspiracy. Taking account of the limited time available in the present Session, the Government thought it better that before legislation on part of the problem was brought forward, we should take a broader look at the subject. The Government have therefore decided that a committee should be appointed to undertake a fundamental review of the laws in the field of obscenity, indecency and censorship. It is the Government's intention that the committee should have a broadly based membership and my right honourable friend the Home Secretary will be announcing the names of the chairman and members in due course.
I turn now to Part III of the Bill which gives effect to the principal recommendations of the James Committee. Your 805 Lordships will recall that in his speech on the humble Address my noble and learned friend the Lord Chancellor gave an account of the problems besetting the Crown Court and the continually growing pressures resulting from the increase in the crime rate. The stark facts are these. In 1974 the backlog of cases awaiting trail in the Crown Court numbered around 8,000; by September of this year it had grown to 12,000. And this, despite continual increases in the number of judges available to try cases, and despite the greater flexibility in the conduct of court business which the setting-up of the Crown Court in 1972 has afforded. But there is a limit to the extent to which resources can be expanded. It is clear that some alternative, and perhaps radical, means must be found of relieving the extreme pressures on the Crown Court.
The James Committee said, in the opening of Chapter One of their report, that:the existing rules governing the distribution of business between the Crown Court and magistrates' Courts are complicated, confusing and anomalous".They went on to identify and describe six existing categories. This complexity is not by any means the result of deliberate decision, but has come about as a result of piecemeal and largely unrelated historical developments.
The James Committee recommended the radical simplification now embodied in Clause 14 of the Bill and amplified in detail by Clauses 15 to 24. Under Clause 14, which follows recommendation 12 of the James Committee, the classes of offence for mode of trial purposes are reduced to three: First, offences triable only on indictment; second, offences triable either way; and, third, offences triable only summarily. The Bill then allocates existing offences to one or other of these three categories.
Taking these categories in order, your Lordships will find that the offences triable only on indictment are substantially reduced by Clause 16 and Schedule 2. Where, as is so in nearly every case, these offences are instead made triable either way, this reduction is wholly in favour of the accused, since he will still be entitled to be tried by jury in the Crown Court if he so wishes. But, in addition, he will be able to have his case 806 disposed of more speedily by the magistrates.
I now turn to the category of offences which are described in the Bill as offences triable either way. The practical effect of an offence being placed in this category is that it will become triable in much the same way as the offences now covered by Section 19 of the Magistrates' Courts Act 1952. It may be tried in the magistrates' court if the court thinks the circumstances justify this course, and the accused consents. The offences so covered are defined in Clause 16, and the procedure for determining the mode of trial is set out in detail in Clauses 19 to 22. Here again, the Bill follows the recommendations of the James Committee.
Lastly, there is the third category of offences—those which are triable only summarily. The James Committee addressed their minds particularly to the principles to be applied in the formulation of decisions on particular offences. This is a difficult matter, which is explored in some detail in Chapter 2 of their report. Briefly, they concluded that the decision whether an offence should be in the summary category, or the either way category, should depend primarily on the seriousness of the offence in the eyes of society (as distinct from its importance to the defendant), and also that (despite some weighty arguments to the contrary which were addressed to them) the defendant should continue to be able to choose trial by jury over a wide range of offences. But at the same time, they considered that some offences which are now triable by jury if the accused so wishes should become purely summary offences. I think that most of the controversy on this part of the Bill will arise on the question, which offences these should be.
I do not wish to embark, in advance of the debate—and of course of the Committee stage—on a detailed justification of the provisions relating to thefts not exceeding £20 and criminal damage not exceeding £100. But I should perhaps draw attention to the provisions of Clause 23 and Schedule 4 and explain why they are drafted in this way. Noble Lords will recollect that the James Committee recommended that offences of small thefts and small criminal damage 807 should be triable in the magistrates' court, and this is the effect of Clause 23. However, it is not possible simply to make these summary offences, because there may be a preliminary issue whether the theft or the criminal damage is below the stipulated limit. The procedure for resolving this issue is set out in Clause 23. It is designed to reduce, so far as possible, the need for precise estimations of value.
The offences which were formerly hybrid and which became triable only summarily, as distinct from either way, are those referred to in Clause 15, and also listed in Schedule 1. I will not go through these offences in detail, but I should perhaps draw attention to two. First, it will be noted that (as both the James Committee and the Blennerhassett Committee recommended) the drinking and driving offences will be triable only by the magistrates, and not, as at present, on indictment at the accused's option; also, that the maximum penalty is increased to six months' imprisonment and/or a fine of £1,000. Second—and this is one of the very few points on which the Government have departed from the James Committee's recommendations—the offence under Section 51(1) of the Police Act 1964 of assaulting a constable is made purely summary.
Noble Lords are no doubt already aware that the maximum summary fines for some offences—and notably those offences which may be committed by football hooligans—are raised in the Bill to £1,000. The increase is effected by a general provision in Clause 28, which gives the courts power to impose a fine of £1,000 on summary conviction of all offences triable either way. The maximum fine which magistrates can normally impose at the moment is £400, a figure which was set in 1967. The James Committee recommended that a standard fine should be available summarily for all either way offences to achieve a further simplification of procedure, and that the fine should be £1,000 with very few exceptions. It is a recommendation the Government have been happy to accept. A wide range of offences will carry this new maximum. Football hooligans, vandals and violent offenders who are convicted of offences of assault and substantial criminal damage will all be liable to £1,000. The maximum compensation which a magistrates' court may 808 order an offender to pay is also raised to £1,000.
Realistic penalties alone are not a simple solution to the problem of increasing crime. If they were, crime prevention would be a far simpler matter than it is. But it is important that the courts should have available to them adequate powers. In addition to the enhancement of fines which flows directly from the recommendations of the James Committee, I might in this connection mention Schedule 6 to the Bill, as that increases the maximum fines for certain purely summary offences where the present penalties are plainly inadequate. It also establishes, by example, a new and simplified procedure of summary fines, taking as its starting point the new maximum of £1,000 for summary conviction of an offence triable either way. The selection of offences for inclusion has necessarily been limited to those where present levels of fine have been found by experience to be inadequate. We regard this Schedule as a first step towards a rationalisation of the structure of fines throughout the Statute Book.
I turn, finally, to deal briefly with some other important provisions which do not owe their origin to either the Law Commission or the James Committee. The Government recognise that the level of juvenile delinquency continues to be a cause for profound concern. The Government's views about the law in this field were set out in the White Paper on the Children and Young Persons Act 1969 published earlier this year. The White Paper made a number of proposals for change, most of which do not require legislation. We recognised, however, the need to provide some form of sanction for the juvenile who defaults on payment of fine, and that this sanction should in appropriate cases extend to the parents or guardian of the child. Clause 35 provides for this. Clause 41 raises the maximum levels of fines which may be imposed on juveniles.
The Bill also enlarges the power available to the police and the courts to deal with breaches of the antirabies controls. The Government consider it of great importance that these controls should be maintained and vigorously enforced. The police and courts already have considerable powers to deal with breaches of 809 the antirabies controls, including such matters as the illegal importation of animals from abroad, but the Government consider that there is a case for further strengthening these powers. Accordingly Clause 38 extends the powers of arrest available to the police in this connection, and increases the maximum penalty on summary conviction for a breach of the controls from £400 to £1,000.
Clause 39 brings to an end the criminal jurisdiction of the coroner, which goes back at least to the days of Edward I. The duty of a coroner's jury to name any person they find to be responsible for causing a death and of the coroner to commit that person for trial is at present to be found in Section 4 of the Coroners Act 1887, but that did no more than reenact the Common Law. The scope of this jurisdiction has in fact been severely limited by changes made in 1926, which confined the criminal role of the inquest to those cases in which the normal prosecuting authorities had decided against initiating proceedings; in other words, the most difficult and uncertain category. When the matter was looked at by the Brodrick Committee, which reported in 1971, they concluded that this jurisdiction was incompatible with present-day concepts of justice. They also found that, in recent times, inquest proceedings had scarcely ever been decisive in leading to a decision to prosecute. They accordingly recommended the abolition of this jurisdiction, coupled with various consequential changes of procedure.
The provisions in Clause 39 and Schedule 7 implement the major part of those recommendations. But these provisions themselves will not complete the change. Further changes will be needed in the Coroners' Rules. For this purpose the Home Secretary has set up a Working Party on the Coroners' Rules to complement the changes which are being made in this Bill. This Working Party will be having its first meeting next month. Clause 40 enables the Secretary of State to vary the minimum or maximum period of probation and the maximum period of conditional discharge by order subject to Affirmative Resolution. The existing limits of probation orders are currently a matter of debate within the Probation and After-Care Service. Under this clause any action which seems desirable could 810 be taken, with the consent of Parliament, without undue delay.
Although the Bill is primarily an England and Wales Bill, some of its provisions are being extended to Scotland also. The Scottish applications are effected by Clause 44 and Schedule 8. I should stress that all the new substantive provisions for Scotland are being inserted into the Criminal Procedure (Scotland) Act 1975 by virtue of Schedule 8. The Scottish practitioner will, therefore, not require to have recourse to a predominantly English Act to find substantive provisions of the law of Scotland. This approach is in accordance with the recommendations of the Renton Committee on the Preparation of Legislation, and should, therefore, I hope, commend itself to your Lordships. My Lords, I hope that I have given a clear picture of the main proposals of this Bill. It represents an important further step towards the modernisation and codifycation of our criminal law. It will also relieve the pressure on the Crown Courts. And it will also ensure a small but signifycant saving in public expenditure. This is an important Bill. It deserves, and I am sure will receive, your Lordships' support. My Lords, I beg to move.
§ Moved, That the Bill be now read 2a—(Lord Harris of Greenwich.)
§ 4.29 p.m.
§ The EARL of MANSFIELD
My Lords, may I extend the thanks of the House to the noble Lord, Lord Harris, for explaining and taking your Lordships through this Bill in his customary lucid and equally short way. It is a Bill which I think will be welcomed in general in all parts of the House, although many noble Lords, I feel, will have certain reservations, possibly even strong reservations, over different parts of it. If I say that it is a hotchpotch of a Bill, I do not say so in any offensive way. It is of necessity so, because it consists of a number of largely unrelated reforms of and changes in our law. Nevertheless, it is an important Bill because it fundamentally affects the rights of citizens and the treatment which they will receive under the law. It is a Bill which merits, and I am sure will receive, careful consideration by your Lordships. Indeed, it is a Bill largely, if not completely, outwith Party political considerations but which will, I feel, 811 arouse no little feeling, if not passion, over some of the provisions. Lastly, it is a Bill which is preeminently suitable to start its Parliamentary passage in your Lordships' House, bearing in mind the wealth of expertise which there is to give consideration to it.
As the noble Lord, Lord Harris of Greenwich, has told us, the Bill conveniently falls into a number of parts, the first of which deals with the law of conspiracy. There are very few parts of our law which excite so much feeling as that of conspiracy among the lay public. There is, generally speaking, a feeling that it is some form of a catchall offence which can be tacked on to an indictment at the behest of the police either if they think that the evidence which they would have in relation to a substantive offence is deficient, or if they feel that the maximum offence, with maximum penalty, which the substantive offence attracts is insufficient to deal with the particular offender before the court.
Speaking personally for a moment of the days when I was concerned with these matters, I think a charge of conspiracy was used most frequently, where the actions of one or more of the defendants did not amount to an attempt to commit a crime and, more particularly, where, while there was evidence of an agreement to commit an offence, there was no evidence that one or more of the conspirators in the dock had gone any way to carry out the committal of the offence. But, generally speaking, where this Bill seeks to tighten up the definition of what is or is not a conspiracy there will, I feel, be a general welcome. Equally, where the Bill relates the penalty to a substantive offence there will equally be a general welcome. One is left with this philosophical thought: if the offence of conspiracy did not exist it would have to be invented.
I, for one, am much less happy—and a political flavour creeps in here—about the apparent future immunity which seems to be given to those who organise such demonstrations as mass sit-ins or other forms of trespass for political ends. If we are to see to it that a reform such as this is fair and comprehensive, we must also see to it, as I submit to the House, that we do not perhaps by mistake introduce some form of charter for intimidation, 812 because that would make the cure far worse than the disease. This is something to which we shall no doubt return in Committee.
I now turn to Part II of the Bill which deals, if I may so call them, with squatting provisions. This activity has presented authorities of one kind or another, public or private, and individuals with considerable problems in the last few years. One has great sympathy with the problems of the homeless, and one cannot but sympathise with the innocent victims of the present shortage of appropriate housing, which itself is brought about by our national economic weakness so that we cannot provide that housing. There is no doubt that much of the squatting difficulties will disappear if the housing shortage could be ameliorated to a large extent. Nevertheless, there have been many cases where it is plain that the squatter is really more concerned with finding himself, or herself, free accommodation than merely a roof over their heads for which they may have to pay rent.
It is grossly unfair, as well as a reflection on our legal system, that such people have in many respects enjoyed, and continue to enjoy, immunity from the legal process. Speaking again philosophically, I suggest there should be no difference between someone who steals a dwelling-house by squatting in it and any other thief who steals a chattel, because the value of a dwelling-house, or any other building for that matter, lies broadly in the use to which it can be put. To deprive the owner of the use of the house is really not substantially different from depriving the owner of the use of the chattel.
I have gone down this byway shortly, I hope, to reflect whether in Part II of the Bill the Government have, first, recognised the problem which undoubtedly exists and, secondly, if they have, whether the proposals which they make in this Bill are first, fair and, secondly, will go towards resolving the problem. There is no doubt from what the noble Lord, Lord Harris, said, and no doubt from any perusal of the Bill, that the Government perceive that there is a problem. Whether they go about it in a fair and logical way so far as the relief is concerned is problematical. For instance, in Clause 6 of the Bill, 813… any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises …is guilty of an offence, but only if someone is present on the premises, whether or not that person is lawfully present on those premises, and the person who wishes to enter and uses or threatens violence knows that that person is there.
So by virtue of subsection (3) of the clause we have the situation where the "displaced residential occupier", as he is called, may take steps to get back into his own house. That is fine. But, for instance, the landlord who wishes to restore his tenant, so to speak, or restore his premises to a situation in which they can have a tenant, is not given any protection. Philosophically it may fit in with the Government's political ideas but it does not fit in with anything that could be called logic or fairness. This is something to which we shall have to come back.
In Clause 7 we have here what is called the "Adverse occupation of residential premises". It says:… any person who is on any premises as a trespasser is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of a displaced residential occupier of the premises".So that there again it is a charter, if one looks at it in this way, for a squatter to defy any other owner of property than a displaced residential occupier. Anybody other than a residential occupier in this situation will have to resort to the ordinary civil methods which we know are slow, cumbersome, and ineffective. This again is something upon which one would hope that the Government will reflect and possibly produce a better and fairer mechanism in Committee.
One way of getting round it might be to insert in Clause 6(1) the word, "lawfully" in paragraph (a), where "there is someone lawfully present …". That is something to which we will return. My farewell comment, as it were, on Part II is to say that it is a matter of regret that where, for example, a newly built housing estate is occupied by squatters, it is no offence by those squatters if they occupy those houses and thereafter defy the local authority. That cannot be right.
I come to Part III, which is concerned with criminal procedure. Under this Part of the Bill various offences are re-classified so that, as the noble Lord 814 explained, some offences are triable only on indictment, some only summarily and some by what is described as "either way". Some offences which were triable only on indictment can now be tried either way, and those are contained in Schedule II. Curiously enough, those offences include bigamy. But the clause which I think will cause the most debate and certainly the most disquiet in a number of quarters is Clause 23(1), which restricts the right of the defendant to elect trial by jury in certain cases—and of course this applies particularly to cases of theft or dishonesty where the value of the article or articles involved does not exceed the arbitrary figure of £20. In Schedule IV we see the offences in which the value involved is relevant to the mode of trial set out, a matter to which I shall return later.
I suppose the justification for this reform, if it can be called such, is the pressure of work in the Crown Court and, to a lesser extent, the cost of legal aid. I think one has to balance the waiting lists and the convenience to the public against the rights and welfare of the public who may find themselves before the court. Generally speaking, I think people believe that the quality of justice is higher when decisions on fact are taken by a jury of fellow citizens and that the stream of justice is rather more clear and possibly more satisfactory in such instance than when such decisions are taken by a bench of magistrates. More crudely, perhaps one can say that many members of the public believe that their chances of getting off are better if they appear before a jury.
Nobody denies the seriousness of a charge of dishonesty against any citizen. Equally, one must reflect that there are charges of dishonesty which have never been the subject of jury trial. I think I am right in saying that travelling on the railway without paying one's fare and with intent to avoid payment thereof has never been tried or been triable on indictment, and I suppose that that is an offence of dishonesty. Equally, in charges which are serious in all events, such as an assault on a policeman in the execution of his duty, there is no right of election, as I understand it. Thus, one has to balance those various offences with the explanation which has been given by both the 815 noble and learned Lord the Lord Chancellor and by the noble Lord, Lord Harris of Greenwich, as to whether the right of trial by jury should be withdrawn in those cases.
It is also fair to reflect that trial by jury is to be withdrawn in what I might call breathalyser cases and I imagine that that will save the superior courts a great deal of work; and by "superior courts" I mean the Court of Appeal and the House of Lords sitting in its judicial capacity. I have not detected any outcry about the breathalyser; the public at large seems to be content that breathalyser offences should be heard by magistrates, and therefore the uproar is based solely in relation to the question of theft. One has to ask oneself whether this uproar is without foundation or whether it is something with which one feels some sympathy.
Uproar there certainly has been. My attention was drawn to an article by Mr. Geoff Robertson in the New Statesman on10th December—a paper which I do not frequently read—which in the first sentence uses adjectives which I certainly would never choose to use against any member of the Government, certainly not in this House. But we can perhaps dismiss that by saying that it is a typical piece of muddled Left-Wing thinking. However, it is indicative perhaps of the emotion which has been engendered by this proposal. My mind is fairly finely balanced, but I would say that there have been cases of High Court judges who have been convicted of a breathalyser offence and who have remained in their position of authority. I do not think that there has ever been a judge who has been convicted of an offence of dishonesty who has remained on the Bench, and to that extent there may be a difference as between theft and other offences which your Lordships will wish to consider.
I find the £20 limit very hard to reconcile, if only for the difficulty in establishing £20. Schedule IV has a column headed, "How measured" and it answers that question in these words:What the property would probably have cost to buy in the open market at the material time",whatever that means. I can illustrate it in this way, and I have to do it in terms of drink and tobacco, hopefully before the 816 mini-Budget tomorrow. The more depraved Members of your Lordships' House may buy these commodities in bulk at "cash-and-carry". One can, for example, get a case of cream sherry for no more, or no less, than £19. One puts it on a trolley, passes through the check-out and away one goes. If one took an extra case of cream sherry—or 1,000 cigarettes, which I believe cost £18, although I do not smoke—bearing in mind that in a "cash-and-carry" the value is £19 but would be very much more in a retail store, if one is apprehended in the act of dishonesty in the "cash-and-carry" would it be a case for the magistrates' court when the open market valuation would be considerably more than £20? How will this be reconciled? To me it will cause some unfair discrimination between one defendant and another.
I welcome the increase in the range of fines, something that has been long over-due. We will gloss over how magistrates will extract as much as £1,000 out of a young rip who has misbehaved himself on the terraces when it is difficult, in my humble experience, to get even £100 out of him. Nevertheless, it is a welcome move in the right direction. I wish to make a personal act of thanks, if that is the right phrase, to the noble Lord in relation to Clause 38, which deals with rabies. I first drew the Government's attention to the lack of powers of arrest without warrant by a constable on 31st March in your Lordships' House. My remarks appear at col.1248 of the Official Report. Others took it up in the other place far more effectively than I, but it is a matter for congratulation to the Government that within a matter of months the power to make such an arrest in the important and worrying circumstances such as the importation of animals has been put into a Bill, and I wish to thank the Government for so doing.
We shall have plenty of time to reflect upon the Bill because, as I understand it, the Committee stage will not be until after the Christmas Recess. But with the various matters which I have tried to set out before your Lordships, perhaps this is a Bill which will be welcomed in great measure, if not wholly.
§ 4.50 p.m.
§ Lord WIGODER
My Lords, it is impossible in a short space of time to 817 make an adequate Second Reading speech upon each of these three Bills, because in fact quite separate Bills on three quite separate topics are incorporated in the measure before your Lordships. Therefore, I propose to make simply one comment on Part I of the Bill, one comment on Part II of the Bill, and then to pass on to what I regard as the most significant part of the Bill. the third Part.
My Lords, as to Part I dealing with conspiracy, I want only to observe that it is with some regret that one sees that in Clause 5, in which it is proposed to abolish the common law offence of conspiracy, it is proposed to preserve for the time being the offence of conspiracy to corrupt public morals. It was made clear by the Law Commission that they strongly recommended the abolition of that offence. It is an offence that has given rise to a series of very great difficulties in practice, largely because of the uncertainty as to what it means. The Law Commission made a number of pungent criticisms of that particular offence. I welcome what has been said today by the noble Lord, Lord Harris of Greenwich, to the effect that a committee is to be set up to consider this matter. But one cannot help thinking that inevitably that must mean that any proposal now to deal with the offence of conspiracy to corrupt public morals may be postponed for several years to come. I will invite the noble Lord in due course to consider whether or not it might be desirable in those circumstances to implement that particular recommendation of the Law Commission and to take this opportunity, while this Bill is going through this House, to abolish the offence of conspiring to corrupt public morals.
So far as Part II of the Bill is concerned, this deals with offences relating to entering and remaining on property. One will want to consider carefully in Committee not only the clauses of the Bill as now drafted, but the possible extensions indicated by the noble Lord, Lord Harris of Greenwich, in his observations this afternoon. I would only say this. I have no doubt that the Government will agree that there are many cases in which people are squatters out of social necessity and not out of political protest. There are also many cases in which people are desperately homeless and are able only to install themselves in houses which are long empty and derelict. It is important that, in the 818 course of passing the significant Part of this Bill, we ensure that those people are not dealt with harshly when they are the people who, above all, need sympathy and assistance.
I come now to Part III of the Bill dealing with the recommendations of the James Committee. May I begin by saying that I and, I believe, the overwhelming majority of the Bar, accept the great bulk of the proposals put forward by that Committee under its distinguished chairman. But I want to comment on two matters that arise, and two matters only at this stage. The first is the one already mentioned by the noble Earl, Lord Mansfield, and no doubt about to be mentioned by many others of your Lordships; that is, the proposed abolition of jury trial where there is an offence of dishonesty alleged and the amount involved is less than £20. I would suggest that this proposal is to tamper with a principle of some importance in the interests of a non-existent expediency.
The principle can be stated with some simplicity, and it is merely this. If a person's honour and reputation are at stake that is a matter of importance to him, and of importance to his family, whether that person be a judge, or a Minister of the Crown, a bishop, or the most humble of persons carrying out the most humble of occupations. The loss of his good character may affect him not only financially in terms of a job or of a pension; it may have disastrous consequences so far as his self-esteem and family relationships are concerned. Therefore, it is not unreasonable to regard the tradition that has been established in this country as worth while, that where a person's character is at stake in that way, a man should have the right to say, "I will have the issue determined by a body of my fellow citizens rather than by a stipendiary magistrate or a bench of lay justices"
In saying that, may I say at once that that is not intended as any criticism of magistrates or justices of the peace. Stipendiary magistrates work desperately hard for long hours making extremely difficult decisions. Lay justices undergo periods of substantial training, and devote many, many days in the year to the service of the community. Indeed, if I may say so, I have no doubt that in the overwhelming majority of cases the decision that 819 would be arrived at by the magistrate or lay justice is exactly the same as the decision which would be arrived at by a jury. But the mere fact that the decision may be the same does not, in my view at least, justify the course proposed in this Bill of whittling away the principle of jury trial, the right to jury trial where a man's character, honour and reputation are at state.
If that principle is to be eaten into in this way, it must be done only on the basis in the first place that it is demanded by the interests of expediency and, in the second place, that no other method of dealing with the problem presents itself. If I may do so, I should like first of all to query whether in fact an argument on the basis of expediency is as valid as has been put forward. If one reads the James Committee Report it is clear that it was entirely on the basis of expediency and not in any way on the basis of principle that this proposal was eventually put forward by that Committee.
My Lords, it is said that the load on the Crown Courts at the moment is so great that there are unacceptable delays in the administration of justice. I accept at once that the avoidance of delay is extremely important. It is extremely important that a crime should be dealt with when it is fresh in the public memory. It is extremely important that a crime should be dealt with when the witnesses still have a proper recollection of the events. It is sometimes said that it is only fair to a defendant that his case should be tried rapidly. I am not entirely convinced that this is an accurate statement of fact. if the noble Lord, Lord Harris of Greenwich, cares to stroll up Newgate Street outside the Old Bailey at half-past nine on a weekday morning he will not find queues of defendants hammering on the doors of the Old Bailey, eager to get in so that their cases can be tried at the earliest possible moment.
In fact, there comes a stage at which it is impossible to remove delay altogether because the defence require time to prepare their case just as much as do the prosecution. As the noble Lord will know, in complicated cases the prosecution, with the assistance of every possible expert resource—accountants, scientists, doctors, 820 or whatever it may be—may take not merely months, but years in order to be able to present a case before the court. In those circumstances, it is not unreasonable that those who are preparing the defence should ask for a mere fraction of that time in order that the defence may be adequately prepared. Therefore, some degree of delay is inevitable.
I do not believe the degree of delay at the moment to be unacceptable. The noble Lord, Lord Harris, spoke of a backlog of 12,000 cases; I should be grateful if he would explain the significance of this figure when he comes to reply. If there are cases submitted for trial and afterwards there are trials, there is bound at any one moment to be a substantial number of cases awaiting trial. To call them a "backlog" is, if I may say so, to use an emotive expression that has very little significance. There are some 250 Circuit judges and a substantial number of recorders, and I suppose that there must, on any one day, be some 300 to 400 Crown Courts sitting dealing with criminal cases. A backlog, as it is said to be, of 12,000 cases means that there are 30 to 40 cases awaiting trial in any one court.
In fact, apart from London, as I understand the position, delay is no problem. If one goes into the Provinces, to the Crown Courts in the country, one finds application after application being made by the defence—very often with the support of the prosecution—that the case should stand out because neither side has had time to prepare the matter properly. There are no complaints of any substance about delay outside London. Such complaints as there are arise almost entirely in the situation as it has developed in London.
What is proposed under the Bill? It is proposed that, dealing with offences of dishonesty relating to sums under £20, somewhere between 3,000 and 4,000 cases should be transferred from the Crown Courts to courts of summary jurisdiction. By whom will these cases be tried? When and where will they be tried? The position in the London magistrates' courts is really just as bad as it is in the London Crown Courts. We are not talking here, I assume, about the case that lasts a mere hour or hour and a half. Those are of no great consequence in terms of causing delay at Crown Courts. We are 821 speaking of cases that last perhaps over a day, cases involving a small amount of money but which relate to a substantial issue involving, let us say, a day or a day and a half to be tried.
Yesterday, I asked my clerk to make a very simple inquiry by telephoning three magistrates' courts in London, one in the centre of London, one in the suburbs and one on the fringe. He was to ask when was the first day on which that court could offer two consecutive days to try a case. No one can try a case satisfactorily on the basis on which at the moment they are dealt with in the London magistrates' courts. There, one gets an hour one day, then a remand for a fortnight, then another hour if one is lucky, then a remand for a week, then a third hour in which the case may perhaps be completed. It was not an unreasonable request, therefore, to ask when two days would be available for a summary trial. The answers were these: the court in the centre of London said that it would be in the middle of February and added the words, "at a struggle"; the court in the suburbs said that it would be in the middle of March but that it Would be at the expense of everything else; the other court said that it would be at the end of March or some time in April. That would have been the situation yesterday had an application been made for a case to be dealt with in the magistrates' courts.
Such applications are not made on the first day when a man comes before the courts. Weeks of remands of one sort or another will usually have elapsed before the prosecution will be ready to say, "We will proceed at a convenient time". Therefore, the situation appears to be that, although there are difficulties, particularly in the London Crown Courts, there are almost equal difficulties in the London magistrates' courts.
There was very little in the way of documentation in the James Committee Report as to the actual delays that were occurring both at Crown Courts and magistrates' courts. I hope that the Government may find it possible, before the Committee stage of this Bill, to produce evidence of rather more statistical validity than my clerk's telephone calls, which may enable your Lordships to consider in detail just what is the pressure 822 on the Crown Courts in and particularly outside London, and how it is proposed that magistrates' courts should find the resources and facilities for dealing with the workload that it is here proposed should be added to their existing burden.
That observation was devoted primarily to the proposal that offences of dishonesty should no longer be made triable by jury. There is one other proposal to which I must refer; it is the proposal that assaults on the police should not be tried by jury. At the moment, assaults on the police are not triable by jury, although they are frequently dealt with with great severity—no doubt, quite properly so. The James Committee proposed that they should be triable by jury at the election of the defendant. I venture to suggest that the James Committee was quite right and that the Government are not right in with-drawing that type of offence from the right to jury trial.
The reason is perfectly simple: in any case of that nature, it is almost inevitable that the case, if it is contested, will revolve round the issue of whether the policeman and his colleagues who give evidence are to be believed or whether the civilian, with his other civilian witnesses, is to be believed. It is quite inevitable that any defendant in those circumstances will regard the police as one manifestation of authority and the magistrates or the lay justices as another such manifestation. However fairly, properly and carefully such a case is tried, it is quite inevitable that, if there is a conviction, the defendant will leave court with a grievance that one form of authority has merely been supporting another. I therefore regard it as important that that class of offence should be one in which there is a right to jury trial if the defendant so wishes.
I have dealt with those two proposals. I said, when I referred to the pressures of work on the Crown Courts, that it was desirable to see whether there were other ways apart from these drastic and, I suggest, unjustified proposals in which those pressures can be relieved. Some of them have, rather ironically, arisen because of the attempt that was made some years ago to reduce the pressures on the magistrates' courts. A procedure was devised under which defendants could be committed for trial without taking up the time of the magistrates' courts. It was a 823 wholly admirable procedure so far as the magistrates' courts were concerned, but it has added substantially to the workload of the Crown Courts because many cases now go for trial that should not have been committed for trial at all, and because the vast majority of cases that are committed for trial under that procedure reach the Crown Court in a state of confusion in which there are far too many documents, exhibits and statements, none of which have been properly sifted before-hand. Although work is being saved at the magistrates' court level, it is being increased at the Crown Court level. It is a trifle ironic that an attempt to save the time of the magistrates' courts has led to the increase of work in the Crown Courts so that it is now necessary, in the view of the Government, to bring forward these proposals restricting the right to jury trial in order to try to redress the balance.
That is one way in which much time is being unnecessarily taken up in the Crown Courts. The second is this: there is a vast variety of prosecuting authorities and a very large number of prosecuting counsel in this country. There task is frequently approached in quite different ways. The competent prosecutors go to the point where they choose what defendants have done, something which makes it desirable that they should be before the court; they choose what is the easiest charge to prove, and they prove it in the simplest possible way. But there is growing up among some authorities and some members of the Bar a school of thought that every possible avenue must be explored, every possible defendant must be put in the dock, even if he is so far on the fringe that his trial becomes a formality; every possible charge must be preferred; every possible witnesss must be brought before the court and at vast expense.
Without wishing to give examples of that (because I am going on a little too long myself) I would venture to make just one suggestion to the noble and learned Lord on the Woolsack, and that is that he and his Department require very properly those who exercise any judicial function to take part in lengthy residential training courses on the subject of sentencing. I cannot help thinking that it would be helpful if prosecuting authorities, and those members of the Bar who prosecute, could be brought together for a similar 824 length of time in order to discuss what is the practical and sensible way in which to exercise their discretion in dealing with prosecutions. I have no doubt that had the advice of the present Director of Public Prosecutions and the present Senior Treasury Counsel at the Central Criminal Court been followed by those who prosecute up and down the country there would be a vast saving of time and expense in the Crown Courts.
My Lords, the last matter to which I should like to refer is this. Much time is wasted and much expense is involved because in this country we leave the conduct of a prosecution at an early stage to police officers. We leave it to police officers to choose whom to arrest, whom to summons, what offences to prefer, and what witnesses to call. Once a person has in fact been charged or summonsed, it is for practical purposes impossible for the prosecution to abandon the case because of the danger, which they feel is inherent in the situation, of an action for malicious prosecution or wrongful imprisonment.
It is to some extent a long-term solution to this problem, but I would ask the Government to reconsider urgently particularly the proposals that were put forward in a Justice report four or five years ago, that in this country we should adopt the Scottish system of procurator fiscals, under which there is at a very early stage in every criminal case an independent analysis, an independent selection, not by the police but by skilled authority, of exactly who is to be prosecuted, for what offence, and what evidence is to be called in support of it. I think that if we go over to that system, as I have no doubt we shall in due course, we shall save infinitely more time and expense than is going to be saved by the proposals of the Government in Part III of the Bill in relation to the two matters I have dealt with where it is being suggested now that jury trial should be excluded.
My only other observation is that I would hope that your Lordships would acquit me of any dishonesty, or rather of any discourtesy—when one is talking about this topic it is perhaps a little easy to get one word confused—if I find it necessary to leave before the end of the debate in order to fulfil a prior commitment. I shall peruse with the greatest possible interest those of your Lordships' 825 speeches to which I shall not have the privilege of listening.
§ 5.14 p.m.
§ Lord MORRIS of BORTH-Y-GEST
My Lords, I am quite sure that no one of us could approach a consideration of this very important and most comprehensive Bill without feelings of admiration for the scholarly, careful and diligent work that is undertaken by the Law Commission, and that was undertaken by the Inter-Departmental Committee under the distinguished chairmanship of the late Lord Justice James. I join with other noble Lords in thanking the noble Lord, Lord Harris of Greenwich, for explaining this measure to us. In the remarks that I propose to make, while giving a general welcome to the Bill, there will be a few points that I should like to raise in the hope that the noble Lord, Lord Harris, can give us a little further enlightenment and perhaps a little reassurance on a few points.
It is often said and thought, and I am sure frequently with justification, that charges, counts for conspiracy, are unnecessarily brought. That may well be so, but I think the means are there to deal with that situation. In his speech to the House some days ago the noble and learned Lord the Lord Chancellor explained to us in a very interesting way the procedure that is often now adopted of having a pretrial review. I feel that all that the noble and learned Lord Chancellor described to us shows a very valuable and important development in procedure. I should have thought that at any such pretrial review there was good opportunity for the judge to see that the charges of conspiracy were not unnecessarily left within the trial.
Much judicial guidance has been given in regard to this matter, and I should like to summarise just one or two points that have been laid down. It has been laid down that as a general rule where there is an effective or sufficient charge of a substantive offence, the addition of a charge of conspiracy is undesirable. But it has been pointed out that there may be some cases in which it is fairer to try the conspiracy charge separately. It has been pointed out that it is wrong to have a count for conspiracy if its inclusion would be unfair to the defence. It has been 826 pointed out that there ought not to be a charge for conspiracy if in substance it is a charge that includes more than one conspiracy, a sort of rolled up plea.
In posing a few questions in regard to Part I of the Bill in relation to conspiracy, it seems to me that principally what Part I is doing is contained within Clause 5; that is to say, abolishing certain common law offences. If we are changing the law of the land, as opposed to mere procedure, I feel that it is very important for us to know exactly what we are doing and why we are doing it. Therefore, I should like to consider what it is we are doing, if we pass Clause 5 of the Bill, in abolishing certain common law offences.
I think that we should always be a little careful about tampering too much with the common law of England; a little careful before we jettison it. I think that the noble and learned Viscount, Lord Radcliffe, had a phrase in one of his writings, "the unravished remnants of the common law". Those of us brought up in the common law tradition believe that we have a rich heritage in the common law, something evolved and developed over centuries, reflecting and embodying the notions of right and wrong, of fairness and unfairness, believed in by those whom we can call the free and lawful men of Britain.
The common law spoke of the liber et legalis homo: the sturdy free man of good repute who looked to the law to ensure for him life, liberty and the pursuit of happiness. So it seems to me that the common law has ever remained a living force, and has remained the support and prop of ordered life in this country. Over the years the judges have understood and have interpreted the wish of all well-disposed citizens that there should be fair and peaceful dealings between man and man, and certain standards of honesty and decency that the law should uphold.
The common law has, I think, served us well, and it has done so because it has that flexibility which preserves its vitality. In the civil law, we speak about the notion of a neighbour; the duty to exercise care, and not to be negligent in our conduct that may affect others. But we do not imprison the notion of what may amount to negligence within the constriction of a written code, which may have all the agonising 827 exactitude of an Income Tax Act. We cannot forecast every set of circumstances which may arise and then, with exactitude, lay down what a careful person should in such circumstances do or not do. Of course, in our common law system sometimes it is desirable to change the law; sometimes it is desirable to correct an error that has crept in; sometimes it is desirable to codify some section of the law —and many codifications have proved very successful and beneficial. Many times in your Lordships' House, in speaking of industrial matters, many of your Lordships have proclaimed their belief in a mixed economy. So, I think, in the law, it has been shown that both common law and statute law can separately exist.
I would suggest that if you have an old building that is functionally satisfactory you do not pull it down merely in the interests of some constructional tidiness or uniformity. So, in approaching Part I of this Bill, I feel it is important that we should know exactly what we are about. There are certain conspiracies now which are common law conspiracies. Some of those are agreements which would involve the commission of an offence, and some are agreements which will not necessarily involve the commission of an offence. What does this Bill do? Here, I would be glad if the noble Lord could enlighten us a little. In regard to all the first Part, it seems to me that Clause 1 makes no difference. They will simply be called statute law conspiracies in the future, whereas until now they have been common law conspiracies. Then, in regard to Clause 5, most conspiracies of the second kind to which I have referred will continue as before, though some, by the sweeping general words of Clause 5, are abolished.
It is here that I should like the noble Lord to help us. What exactly are we abolishing; and are we sure that it is safe to abolish whatever we are abolishing? What are we keeping? We are keeping conspiracies to cheat and defraud, and no one suggests that they should not be kept. The Law Commission, even though they made wider proposals than those in this Bill, said that you cannot deal with a conspiracy to cheat or defraud. That, my Lords, is a very wide field. This Bill retains conspiracy to corrupt public morals. This Bill retains conspiracy to outrage public decency. The view has been 828 expressed—I think the noble Lord, Lord Wigoder, took this view—that perhaps conspiracy to corrupt public morals might go. I do not think I agree. It has been laid down by your Lordships' House in a judicial capacity that that is an offence known to the law. Many lawyers have had doubt about it; they have wondered whether it was academically sound to retain it. But it is part of the law of the land. Is this any time to jettison something from the armoury of the law which may—which may, at least—be needed?
My Lords, we are keeping all those conspiracies. What about conspiracy to pervert the course of justice? It is not made at all clear in the Bill whether that is preserved, but I am rather assuming that the operation of Clause 1 is believed to preserve that because it is thought that there is a substantive offence apart from the conspiring. I should like the noble Lord to tell us, if he would be so good, whether I am right in assuming that, though conspiracy to pervert the course of justice is not mentioned in this Bill, it is in fact being preserved, because it would be very serious if it were not.
Just a glance at Clause 1 of the Bill. Clause 1(1) deals with making conspiracies statutory conspiracies. May I just read subsection (2). That says:Without prejudice to the generality of subsection (1) above, for a person to be guilty of conspiracy by virtue of that subsection in relation to a particular offence both he and the other person or persons with whom he agrees must intend to bring about any consequence which is an element of that offence, even where the offence in question may be committed without that consequence actually being intended by the person committing it".I think one can see one's way through that. If you wanted to set a question to judges, Circuit judges, recorders, magistrates and justices' clerks, if you wanted to test their skill, you might put that subsection before them and say to them, "What does it mean?" I venture to submit that most of them would be puzzled. They would ask if they might read it two or three times, and then might read the explanation in regard to it given in the report of the Law Commission. Do we really need that? I do no wish to take a Committee point at this stage.
Subsection (3): Is that not the law already as laid down in this House? Subsection (4): Is that not the law already 829 as laid down in an existing statutory provision? Subsection (5): Is that not the law already as laid down in a decision of this House? Subsection (6): Is that not the law already as laid down by Statute? So far, my Lords, what is achieved? I would suggest, unless the noble Lord can disillusion me, that so far nothing is achieved.
I come to Clause 5 and again I ask: what exactly are we doing? We are abolishing all common law offences except those preserved. I think we ought to know what we are abolishing. Perhaps the noble Lord could tell me whether I am right in mentioning one or two. Is it at present an offence to conspire to charge somebody falsely with a crime? If so, are we saying that that is no longer to be an offence? Is it an offence at present to conspire to publish a defamatory libel? If it is, are we saying that that must go, that one cannot prosecute for that? Is it at present the law, or may it be the law, that it is an offence to conspire to spread false statements about a person? May there be some vicious form of character assassination which might well be met by procedure in the criminal courts? Lastly, is it an offence to conspire to injure a person in his trade?
There may well be an argument as to whether those various offences are of any value to day. The Law Commission examined these matters and they pointed out that there have not been charges in recent years in regard to those matters to which I have referred. It may well be so, and I am not saying that there is a necessity to retain these; but I do urge that we should know exactly what we are doing and why we are doing it. The Law Commission, having considered those various matters in a very reasonable way and having suggested that there are alternative procedures that would be open to somebody who is affected, point out —in particular in regard to the last one I mentioned, conspiracy to injure a man in his trade—that there has been no case for very many years—I think since 1872. They say that the consequent elimination of these forms of conspiracy will accordingly clarify this area of the law.
I do not know quite how it clarifies this area of the law. I am not saying that we need keep these various offences; I 830 am not saying that they have been recently employed; my only point is this. Do I understand correctly the application of Clause 5 and that it does involve that for the future, if these still are substantive offences —and one cannot argue a legal point in a debate of this kind—we are making them no longer offences?
My Lords, I would say only very little in regard to the other Parts of the Bill. As I say, I should like to have the assurance of the Minister that I have correctly understood what Clause 5 does and I should like to know whether we are quite happy to proceed on the basis that none of those offences is today of any value. I can think of a library in which you may have some valuable book. It might be said: "No one has asked for that book for a long time. Let us throw it away or let us sell it". Then a scholar comes in and asks for it. It is not a very satisfactory answer to say that no one has needed it for some time. I am not opposing Part I of the Bill, but I should like to have a little further enlightenment from the Minister as to whether I have correctly interpreted what we would be doing and whether he is satisfied that we run no risk of harm in abolishing those offences.
I wish to say only a very few words in regard to the other two Parts of the Bill. As to Part II, I really ask the noble Lord again just for one or two matters of enlightenment. Does Clause 6(3), mean that if a displaced residential occupier wishes to go back to his premises he may use violence, even directed against the person, in order to secure re-entry? Is that the effect of it? Then, in regard to the adverse possession as a trespasser being an offence, is that only an offence in regard to residential property? Is it no offence if it is a factory or a building or is it no offence if it is an empty residential house?
Clause 9 makes it an offence to enter or be on premises as a trespasser if the premises are those of a diplomatic mission or certain consular premises or premises of an international organisation. Does that mean that it would be an offence for somebody to trespass on and remain on, say, the Sierra Leone Embassy but not an offence for somebody to be on and remain on, say, the Foreign Office? Is that the effect of Clause 9? Lastly, 831 on this, I wonder whether the noble Lord could tell us at all whether or not the case of Kamara, decided in your Lordships' House judicially, is being overruled by Part II?
I apologise for detaining your Lordships and I come to Part III of the Bill. I will confine my remarks to an indication of my feelings in regard to Clause 23. share the approach expressed by the noble Lord, Lord Wigoder. I think that if somebody is charged with an offence, the offence of theft, dishonesty, the amount (if it is very small) the matter may be of such consequence to him that I think it would be a grave step to disentitle him to take the verdict of a jury. In this respect I differ from the conclusion reached by the James Committee. I would quote only one sentence. They say:It is right that society's view of the most serious offences should be signified by their being tried at the higher level of court. It would be impracticable, even if it were desirable, to categorise offences in accordance with their importance to the defendant since that importance varies widely according to his character and position in society".To charge somebody with an offence of dishonesty, it matters not whether he is somebody occupying a prominent position in the land; it matters not what his status in society is. If he is the humblest of persons his reputation, his character, is of equal importance to him as to anyone else and I would think it is the consideration of the effect on the individual that ought to govern.
There are many offences which, under this Bill, will go to magistrates without the chance of a jury. Where they are not offences that would bring a man's character into question, I think that there are different considerations. I would only add in conclusion that we must recognise that we are going to impose a great additional load upon magistrates. Those of us who have had some contact with the work of magistrates have always been full of admiration for all they do. I am sure that they will be willing to undertake a greater load, but we must recognise that we are imposing that load upon them. Regarding costs, it may well be that the number of appeals as a result from magistrates must be increased, and I think the somewhat hopeful view put forward in the introductory notes ought 832 to be read having regard to the fact that inevitably there will be more appeals from magistrates.
Lastly, may I ask the Minister this point. I do not expect him to give an answer today as I have not been able to give notice of this question. In a Bill changing our criminal law is the time not now ripe to consider whether Section 3 of the 1961 Act should be altered? Your Lordships will remember that it says:Without prejudice to any other enactment prohibiting or restricting the imposition of imprisonment on persons of any age, a sentence of imprisonment shall not be passed by any court on a person within the limits of age which qualify for a sentence of borstal training except—May I ask whether it is the experience of the noble Lord, who has contacts with so many of these cases, that that section has proved a restricting section for magistrates and has very often been the subject of criticism? I do not ask the noble Lord to say anything about that today, but would he give consideration to whether, when we have this comprehensive Bill, it is right to consider whether some change in that provision might now be made?
- (a) for a term not exceeding six months; or
- (b) (where the court has power to pass such a sentence) for a term of not less than three years."
§ 5.42 p.m.
§ Lord GARDINER
My Lords, this is the first year since I left office that I have not addressed your Lordships on home affairs day on the gracious Speech from the throne. I have usually done so to call attention to the increasing number of unimplemented reports in the field of law reform. The reason I said nothing this year was simply that with the Devolution Bill in the other place taking up so much time, I felt sure that my noble and learned friend on the Woolsack and my right honourable friend the Home Secretary would have done their best to get as much Parliamentary time for such Bills as they could and it is unlikely anybody else could have done anything different.
I confess I should have felt happier if the time had been occupied by some of a number of Bills all of which are directed to increasing the liberty of the subject. We have now quite a number of these. It is four and a half years since publication of the Younger Report on privacy, and after four and a half years I have failed 833 completely to obtain any reply from the Government on whether they have come to any conclusion at all about any of the 30 recommendations in that report which had nothing to do with computers. We have had the Franks Committee on the Official Secrets Act. We have had the Phillimore Report on contempt of court. We have had Salmon on corruption and Devlin on identification. We are continuing to see cases of men imprisoned for some years and then their conviction set aside because of difficulties of identification. The Devlin Report recommended a short Statute and two codes. I ask my noble friend Lord Harris whether or not the Secretary of State regards the implementation of the Devlin Report as a matter of real urgency. Instead, we have an admirable Bill although one of its consequences will be to deprive a number of citizens of their right to trial by jury.
Starting with the beginning of the Bill, the second sentence of the Explanatory Memorandum is wrong. It appears to say that these parts of the Bill implement the recommendations of the Law Commission in this field. As has already been pointed out, they do not do so in the field of conspiracy to corrupt public morals. I hope that the noble and learned Lord, Lord Morris of Borth-y-Gest, will not think me discourteous if I do not repeat tonight the reasons which I have often given in the past why I consider that it is a great blot on our legal system that it should continue to exist. As the noble and learned Lord, Lord Hailsham of Saint Marylehone, will remember, my noble friend Lady Birk and I, in discussions on the Criminal Justice Bill of 1972, put down Amendments with the hope of getting this blot on our law removed. My noble friend made a prophecy which I thought at the time was perhaps a little extravagant. On 24th July, at column 1106 of Hansard, she said:… It is now seven years since the Commission …"—That is, the Law Commission—… pointed to the need to examine and reform this area of the law. Even when it has reported, if one goes by what has happened in the past and the piling up of legislation, both legal and otherwise, action is bound to be slow to follow. It took Jacob seven years to attain his first wife and another seven years before he obtained a wife of his choice. Have we to wait another seven years before something is done here? I submit that, socially, humanely and legislatively,834we cannot wait for the slow wheels of the Law Commission to grind before at least something is done in the interim.Seven years from the summer of 1972 will be the summer of 1979. It is some 14 years since the Law Commission first pointed out the urgency of this subject. They strongly recommend abolishing the crime of conspiracy to corrupt public morals. They deal with films and the theatre in other ways. There is the draft bill attached to the report all ready to be implemented. After what is now at least 11 years, what do we get? The Government say that they are going to appoint a committee. They have thrown the recommendation of the Law Commission on this point out of the window and if a committee be appointed now I will venture the prophecy that it will be at least seven years from now before we ultimately get rid of that crime. That is so far as conspiracy is concerned.
The view I have expressed has already been expressed in a leading article in the Justice of the Peace of last Friday when they said how disappointing the Bill was on this point. They concluded:The Law Commission, in its report … was quite definite in recommending the abolition of both these offences; their retention, it asserted, would he incompatible with the objective of codifying the criminal law.This is the task on which the Law Commission, with the approval of Parliament, has engaged for some time. Nearly every other country takes the view that you cannot have a law which it is impossible to put into words. They all codify particularly their criminal law and they are engaged in codifying accordingly our criminal law. This is merely a branch of it.
I do not propose to say anything about vandalism or squatting. Several speakers have already dealt with those subjects. I come to the James Report. The first thing I should like to say about that is that I had the highest regard for Lord Justice James. He survived what no doubt was a great disadvantage of having started at the Bar as my pupil. In a short space of time he was a leading practitioner and had in my view all the best qualities which a judge can have. I regard his sudden death as a great loss to our Judiciary as a whole. The case for what is proposed in the James Report is not really very strong, when one looks at it. There are difficulties 835 only so far as London is concerned. Paragraph 23 says:The rate of disposal of cases has more or less kept pace with the number of cases received. Although there has been some increase in the number of cases outstanding, national average waiting times between committal for trial and trial have been reduced from 11–2 weeks in 1972 to 9–9 weeks in the first quarter of 1975 and, for cases where the defendant was in custody, from 8–3 to 7–4 weeks. In the main, long delays are now confined to the South-Eastern Circuit, particularly London.I have had, of course, the advantage of reading, though I did not hear them, the observations made by my noble and learned friend on the Woolsack during the debate on the loyal Address, and I gathered from him, too, that the trouble really concerns London.
What about the magistrates' courts? The trouble there is also mainly in London and in two or three large provincial centres. The Law Society have told us—of course they work in both courts—that delays are more serious at present in the magistrates' courts than in the Crown Courts. Therefore is this not rather robbing Peter to pay Paul? I am told that at Old Street, for example, it takes five weeks to get on a case other than some very short one.
The other thing which troubles me about the recommendation, apart from the fact that the case as a whole does not seem to have been made out, is that the remedy deals with cases in which people who are not hardened criminals are most likely to be involved in conflict with the police and where, as the noble Lord, Lord Wigoder, has already pointed out, England and Wales are the only countries in any part of Western democratic Europe where the police prosecute. As f have said before and am in danger of saying again, in Scotland the police have never been allowed to prosecute; and in Northern Ireland, on the recommendation of the Hunt Committee, the rector always prosecutes now except in trivial cases.
Where that is so, I should have thought there should obviously be a right to trial by jury. The sort of case that we have in Schedule 1—conduct conducive to a breach of the peace, proceedings under the Public Meeting Act, proceedings under the Public Order Act, proceedings arising over causing a breach of the peace by 836 putting on a particular play in the theatre—are ordinarily things that concern not hardened criminals but dissenters. We all strongly support dissenters when they are in Red Square in Moscow, do we not? Dissenters are really people who are still thinking and who desire some change to he made. We say that it is intolerable—as indeed it is—that people should be treated as they are in Moscow; but these are just the sort of cases which bring people into conflict with the police. These are cases such as men soliciting—the public lavatory cases, with police in plain clothes—and, as has already been said, assaults on the police.
The James Committee were very clear in their view that these cases should be triable by a jury. I would submit that an assault on the police in any country where it is desired to maintain the rule of law must always be treated as a serious offence. It is now to be six months or a fine of 1,000 or both—and quite right too. But what the James Committee said was this:On the basis of the existing law the offence"—that is, of assault on the police—would fall within the intermediate category and so carry a right to elect trial by jury. In our view, the present position, whereby in effect the prosecution can choose to take the case on indictment but the defendant has no choice, is indefensible. When the case is contested there is often a straight conflict between the evidence of the defendant and that of the police. If there is such a conflict, it can be said that the prosecution has a special involvement in the case and that therefore it is particularly suitable for resolution by a jury. If the offence is retained, we recommend that it should carry a right to trial by jury unless the maximum penalties are severely curtailed… this recommendation … was strongly supported in the evidence we received",and so on.
That is the recommendation which has been flatly turned down by the Government. I appreciate that they had some difficulty with the Bill as regards the inclusion of some kind of independent representation in the case of complaints against the police. I could understand it if my right honourable friend the Home Secretary felt that he really could not do something now which might upset the police, but I think he needs to do a good deal of explaining when a Committee has made a unanimous recommendation that those offences at least should carry with them the right to trial by jury and that recommendation is plainly ignored 837 by the Government. As the Guardian said last week in a leading article:What must be changed, however, is the proposal to deny people charged with assault on the police the right to a trial by jury. This is both too serious a charge and too delicate a one—in the present state of police-immigrant relations—to confine to magistrates' courts. It runs counter to James and MPs should insist that it be restored.Lastly, I am still worried by the position of the magistrates, though of course I am looking forward to hearing what the noble Baroness, Lady Macleod of Borve, may have to say. The Magistrates' Association has never left the Committee in any doubt about what they feel regarding this. To start with, they sent a memoandum and then later, when the Committee published their provisional conclusions, they addressed them again. On the second occasion, they said this:We agree that it is absolutely essential that there should be adequate staff and accommodation.The Committee themselves have recommended there must be adequate buildings and staff. They go on:We cannot emphasise too strongly that the Committee's proposals to transfer business from the Crown Court will simply not work, and in particular will not achieve one of the aims—to shorten the waiting time before trial—unless more buildings and staff are made available. We are mindful of the lessons learned from the enactment of the Children and Young Persons' Act 1969 before the necessary resources had been made available.As I find myself incapable of understanding financial memoranda, I should like to ask my noble friend Lord Harris these two questions. First, how much money arc the Government providing for new buildings for magistrates? Secondly, how much money are the Government providing for the additional staff for magistrates? The James Committee in their Report point out that the money and resources have always been devoted to the Crown Courts and it is the magistrates' courts which have been starved. Also, I do not understand what the financial arrangements are. The James Committee themselves recommended that the workload of the magistrates' courts should he reduced by transferring all the tax cases to the High Court and all the rating arrears cases to the county court. That had in fact been recommended by the Payne Committee as long ago as 1968, but I am 838 afraid that both the Treasury and the local authorities prefer trying to collect their debts in a criminal court, because they think that way is easier. However, these are not criminal matters: they ought to be in civil courts. The Magistrates' Association accordingly asked whether they could not at least now, 1968 being some time ago, be released from this work, and the James Committee supported that request. Is anything to be done about this and, if not, why not?
Lastly, so far as the finances are concerned, we are apparently going to save £1¼ million on legal aid; that is to say, people are to be deprived of legal aid to the extent of £1¼ million. Legal aid is generally granted in practically all cases in the Crown Court. Magistrates' courts differ very much. There are even differences between those courts which are staffed by justices of the peace, and those which are staffed by stipendiaries. In different parts of the country, they differ very much as to how they do or do not grant legal aid. The magistrates say that there ought to be a general financial pool. Am I not right in thinking that the position is this? The cost of prosecutions in the Crown Court is borne by central Government, and the cost of prosecutions in the magistrates' court is paid by the local authority, subject to substantial refunds from central Government?
Perhaps t may ask my noble friend Lord Harris, though he may not be able to tell me today, what view the Government take about the Magistrates Association's plea in paragraph 15, where they say:… certain offences now triable on indictment would become triable summarily only, and would be outside the provisions governing the award of costs from central funds. We believe that any changes in distribution should be accompanied by the establishment of a unified costs structure. The arrangements for a central fund to bear the court costs of indictable offences should be extended to provide such a fund in respect of the court costs of all criminal offences. We strongly recommend that the proposal for such a costs structure made by the Association in a memorandum submitted to the Lord Chancellor and Home Secretary in 1975 be examined together with the James Committee proposals, and that any legislation in respect of redistribution should include the unification of costs.May I ask my noble friend what is the Government's opinion of that oft-stated view? Subject to those observations, I warmly support this legislation as a whole.
§ 6.2 p.m
§ Baroness MACLEOD of BORVE
My Lords, I should like to thank very much the noble and learned Lord, Lord Gardiner, for asking me to give of my views this evening. He is an impossible person to follow with his enormous amount of wisdom, but I will do my best. I welcome this Bill—not, of course, all of it, as other noble Lords have said—because the intention behind it is correct. It is a very important Bill which will affect the Judiciary, the magistracy, the courts staff and, indeed, the defendants.
As the noble and learned Lord, Lord Gardiner, has said, this Bill will mean that we shall need more staff in the magistrates' courts. I found out today what our complement is. We have a court sitting with five courts, five days a week. Yesterday, when I was sitting, we had 157 summonses and 45 charges and remands, while today we had 199 summonses and 124 charges and remands. The present building is fully stretched and we could not take any more work, so I support all that has been said, and all that has been put forward by the Magistrates' Association in that context, about the need for more staff to help us. But we should be willing to do the work, if and when we could have those extra staff.
I welcome the three tiers—the summary, the either way and the indictable. I shall not mention Part I on conspiracy, because my noble and learned friend Lord Mansfield covered it very accurately. But I should like to say one or two words about squatting; that is, Clauses 6 to 13. I support all the clauses, because they are intended to prevent people from going into other people's property and trespassing, and doing, as they have done, a very great deal of damage. But as has already been said this afternoon, there are a very great number of homeless people in our society today and the Government do not at all seem to be tackling this problem. I would certainly not sympathise with any squatters, but I doubt very much whether any noble Lord in this House knows the enormous number of people who have no roof over their heads in our cities today. Theirs is a very sorry plight indeed.
Having said that, I will go on to Clause 19, which is the road traffic clause, under which driving and attempting to drive after having taken alcohol is now 840 to be tried summarily. We welcome this, and we also welcome the increased penalties. But what we are wondering at the moment is this. In so many cases of driving while unfit through drink or drugs, there is a second charge of driving in a manner dangerous, which is heard at the same time. What is to happen if the first charge cannot go to the Crown Court but the second charge, of driving in a manner dangerous, can? It seems to us vitally important that both charges should be tried together. Another noble Lord has already touched on the subject of assault on the police. The same argument applies there, because an assault on the police can also mean a charge of attempted murder, as can other charges, and that must be taken to the Crown Court. I should have thought that that was almost sufficient reason for taking it out of the summary trials, and putting it into the third category.
On Clause 23, is it right that the financial assessment of theft should be the guide for trial? The sums of £20 and £100 are very arbitrary figures and, as my noble and learned friend Lord Mansfield has said, who is to judge which figure is correct; whether it should be the wholesale one or the retail one? Who is to be the arbiter of that?
As some of your Lordships will expect, my main interest in this Bill has to do with juveniles. As every noble Lord will know, there has been, and still is, a vast increase in juvenile crime. Some of us who sit, as I do, once a week as chairman of a very large court, will know that in many cases juvenile crime is caused by truanting. It is because the children are not going to school, are bored and have nothing to do that they turn to crime.
So I am very pleased that, instead of being able to fine parents—who, after all. are ultimately responsible—the sum of £10, we shall be able to put up the penalty to £50. Another facet of the increase in juvenile crime was drugs. As everybody will know, this country has been through a very bad period of juveniles taking drugs, but I am informed, and it certainly seems apparent to me, that juveniles are now taking to drink. In my view, this is not quite so serious, but it is bad enough and it seems extraordinary that the penalty for selling alcohol to an under-18 year old will still be only £50. But for the child buying the alcohol or for somebody buying 841 it for a child the increase is to be up to £200. As is the case with trafficking in drugs, where one always fines the trafficker more than the taker of drugs, I believe it is very important that people who sell alcohol to the under 18s, however difficult it is in this age to tell whether or not a person is under 18, should be able to be fined at least as much as a young person will he fined for taking alcohol.
Another item which comes under juveniles is defaulting on fines. As we all know, parents are responsible, in any case, for the payment of their children's fines. Before fining a young person it is our practice to ask for a social services report. Very often we can gain background knowledge from the report of the parents and children and whether the children are going to school, and an insight into the financial ability of the parents to pay. Therefore the requirement in the Bill to look into means before sending a child to an attendance centre in default of paying a fine does not apply. Certainly it would not apply in our court because we have all that information at our fingertips before we fine a child. Clause 41 deals with binding over to keep the peace. I agree that in the case of a child the binding over amount should be put up from £25 to £50.
I come now to another part of the Bill with which, in company with the noble Earl, Lord Mansfield, I have had a certain amount to do. Although I find that the fines under the Rabies Act will go up to £1,000, I am upset to see that apparently there is to he no imprisonment penalty as part of the consequence of importing an animal. I hope that I have not misread the Bill, but I am certainly open to correction. At one stage in your Lordships' House I advocated the mandatory destruction of any animal that was illegally brought into this country. I advocated this course mostly as a deterrent, as I believe that it would he a deterrent and I should like such a provision to be added to the Bill.
The imprisonment penalty that magistrates can enforce still remains six months, but the fines have gone up to £1,000. I hope, and it is only a pious hope, that the maximum fines of £1,000 will act as a deterrent. If they act as a deterrent to people who might break the law, then we shall have fewer cases. Only time will tell. 842 One thousand pounds is a great deal of money, whereas £50 is still, to some people, not a great deal of money. I support most of the Bill and I shall look forward to taking part in the Committee stage. Meanwhile I give it my support.
§ 6.14 p.m.
§ Baroness WOOTTON of ABINGER
My Lords, that part of the Bill to which I wish particularly to address myself, namely, Part III, is extremely complicated. May I ask my noble friend the Minister kindly to interrupt and correct me at once if I have misinterpreted it, if only for the reason that I am involved in considerable transport difficulties tonight and might have to leave before I hear his final reply.
I want to say only one thing on Part I of the Bill: that I share the general relief that we shall not be guilty of a crime if we conspire to commit something which is not a crime. Also I share the misgivings of the noble Lord, Lord Wigoder, that this somehow excludes offences against public decency and public morality. These seem to me to be such vague conceptions that one might do almost anything in present circumstances that would be outrages of that kind. I do not wish to say anything on Part II of the Bill because, to be quite honest, I have not read it and I would not understand it if I did.
Part III of the Bill seems to me to involve two revolutions, and possibly three. The first revolution is the one which my noble friend the Minister has described. I should like to add my congratulations on the lucidity with which he has described an extremely complex procedure. That is the part which redistributes business between the Crown Court and the magistrates' court. The other revolution, to which nobody in this debate has referred, is to be found in the final paragraph of Clause 19 which states that a single justice may perform the functions of a magistrates' court under Clauses 20 to 24. I will follow that up in a moment. The combined effect of these two revolutions might be extremely alarming in some respects.
First, leaving aside the single justice point, it is proposed that the powers of the magistrates to impose imprisonment should not be increased. This was 843 specifically stated in reply to recommendations that were put by witnesses to the James Committee that magistrates should be able to impose 12 months' imprisonment. I support entirely the view that magistrates' powers should remain limited to six months, but indirectly, in certain cases, their powers have been increased. I remember that when the once notorious cannabis committee, of which I had the honour or misfortune to be chairman, burst upon the world, we included a recommendation that the penalty for the possession of cannabis should be a fine (the amount of which I forget but it does not matter in this context) or imprisonment for four months. We did not want four months' imprisonment but we knew that under Section 25 of the Magistrates' Courts Act 1952, four months' imprisonment would give the right of election to trial by jury, and that is the reason why we included it.
There are one or two cases—to be honest, I thought that there were three cases but I corrected myself to think that there were two, though what has been said in this debate makes me think that there are three cases—in the new summary offences in which the right of election to trial by jury, derived from that section of the 1952 Act, goes when that section is, as proposed in the Bill, to be repealed. One is keeping a person under the age of 16 in a brothel; the second is sexual solicitation by males; the third is assaults on police.
I thought that assaults on police carried the right of election to trial by jury, because Section 25 of the Magistrates' Courts Act 1952 exempts from compulsory summary trial offences of assault. However, I am probably wrong about that, in view of what has been said by the noble and learned Lord, Lord Gardiner, and by the noble Lord, Lord Wigoder. I am not concerned about the small thefts which, as I have said, upset some people very much. A very large number of people commit small thefts, and at the moment most of them are dealt with by the magistrates. The loss of election to trial by jury has been covered by the other provision in the Bill, that under the new clause there is not to be more than three months' imprisonment.
I am not greatly upset by this. I appreciate, as the noble Earl, Lord 844 Mansfield, has said, that there is a distinction in public attitude, which he illustrated by what happens to a High Court judge who is caught with excess alcohol and to a High Court judge, if there were such a one, although there never is, who is guilty of an offence of dishonesty. The noble Earl illustrated the difference in public attitude towards these two offences. I do not take the same view as the noble Earl implied about the difference between these two offences. It seems to me that there is a difference between an offence which involves a threat to human life and an offence which involves a small intrusion upon the possession of property, but I would rate them exactly the opposite way round from what the noble Earl implied.
The upshot of this is that we are taking away the right of trial by jury in a small number of cases, but I take it we are not modifying the composition of the bench in the case of those offences which are compulsorily subject to summary trial. However, nobody has referred to the final paragraph of Clause 19 which says that in Clauses 20 to 24 the functions of the magistrates' court may be performed by a single justice. If we follow those Clauses 20 to 24 we see that they say that the court—which in this context might mean, one presumes, the single justice—must consider whether cases belong to the intermediate class which are triable either way. The court must consider whether they ought to be tried on indictment or whether it should be summary trial. And when they have come to their provisional conclusion if they decide that it must be summary, then they must give the defendant an opportunity of saying whether he would rather go to trial by jury, and if he presses it then they must concede this. But if he does not, then it is trial by summary court. However, if he insists on going to trial by jury then it said in the Bill that they must act as "examining justices"—in the plural. If —the other way round—they think it ought to go for indictment, but he says "I would rather get it over with" then they must go into the matter and if they agree that it should be "got over with" they must do it by summary trial.
As I read the Bill—and I hope my noble friend will correct me if I am wrong—it says that a single lay justice may exercise all these functions. Does that 845 mean that he may exercise all these functions in the case of the "trial either way" offences in which the defendant has accepted that he will be tried summarily? If it does, and we still retain among the "trial either way" causing death by dangerous driving, this will mean that people such as myself, or like one or two of my colleagues in this House who are lay magistrates and for whom I have the greatest respect—greater respect than I have for myself—will find themselves in a position of trying the case of somebody who by a criminal act has destroyed a human life, and trying it alone; having the responsibility such as a sole stipendiary magistrate has, both of finding the question of guilt or innocence, and of imposing the penalty, which in this case is not particularly severe. If I am wrong about this I hope my noble friend will correct me. If I am not wrong then I hope that for heaven's sake he will cause the Government to remove this single-justice clause or make it clear that it only refers to the procedure and not to any subsequent dealing with the case.
So much for the two revolutions. The possible third revolution refers to the fines. A fine of £1,000 looks splendid when it is splashed all over the Evening Standard and I am sure it will put fear into the hearts of many. But let us be realistic. These fines will not be imposed and if they are imposed they will not be paid. Let us see what actually happens. As the maximum fines go up there is some evidence—it is not easy to get accurate evidence, but from time to time the criminal statistics or the special return of motor vehicle offences shows the total amount paid in fines and the number of offences for which they are paid, and if you can do the arithmetic you will arrive at the average fine. I think your Lordships will find that over a number of years the average fine by magistrates is usually somewhere in the region of one third of the maximum and that cases which go to the Crown Court, which can impose an unlimited fine, generally go to about half of what the magistrates could impose. When the level of fines is increased, as it was put up from £100 to £400 not so long ago in the case of a large number of scheduled offences, there is some evidence that the actual fines went up but there is very little evidence that they were multiplied by four; and I believe there is very 846 little evidence that they will now be multipled by two and a half if they go up from £400 to £1,000. Therefore we must not expect too much from the increase in fines.
Secondly, I say that they will not be paid. My evidence for saying that is that the number of committals to prison for fine defaulters is steadily going up. In 1969 there were 8,500 such committals; in the latest report, which I think was for 1975, there were over 14,400, which is a substantial increase. In the case of fines for motoring offences the increase over that period was 95 per cent. and in the case of fines for property offences—theft, fraud and so on—the increase was 72 per cent. If we are going to put up the fines I think we should put up the machinery for enforcement.
I should like now to refer to the minority proposal in the Report of the Advisory Council on the Penal System on Noncustodial Sentences —a terribly long title which is more shortly referred to (although I would not like to use the title) as the Wootton Report. In that a minority of the committee recommended that, instead of going through the still inadequate machinery though improved by the 1967 Act for finding out the difference between he who will not pay and he who cannot pay, we should make wilful non-payment an offence in itself, which has to be proved in its own right by the ordinary processes of proof in court. There is an analogy in this in the machinery which is used for convicting persons who fail to support their families under, I think, Section 30 of the Ministry of Social Security Act 1966, which makes it possible for the Department of Health and Social Security to prosecute those who in the last resort refuse to maintain their families. Those who refuse to pay their fines might be dealt with under similar machinery if there were proper proof in court that the omission was wilful.
Those are the only things I want to say about this Bill. I hope that the point about the single-justice will be cleared up because, admirable though lay magistrates may be, I am quite sure this is not a responsibility we would wish to bear. Your Lordships may say that the example of causing death by dangerous driving would be very unlikely to be chosen by the court as being suitable to be dealt 847 with summarily in these circumstances, but if I have read the Bill correctly it would be possible for this to happen. I do not think we ought to write it into law that it could even be possible for this to happen, because one could conceive of circumstances in which it might actually happen.
§ 6.28 p.m.
§ Lord EDMUND-DAVIES
My Lords, I will venture to make a very few observations on only one part of a clause in this Bill. The brevity of my observations and the narrowness of the target must not be regarded as an indication that the topic involved is other than one of great public interest, as several noble Lords have already indicated by their speeches. I have in mind Clause 23 of the Bill, which embodies the recommendation made by the James Committee—a distinguished body of people whose dedication to public duty is immemorialised by this Report, headed by a devoted public servant whose intellectual stature and devotion to the public service was such that his untimely death inflicted a great blow upon the public weal and nothing that I say must be regarded as qualifying in any respect my sense of gratitude to them for the product of their long deliberations.
I have in mind that part of Clause 23 which provides that in the case of theft and related offences where the subject matter involved does not exceed £20—and I am not disturbed about the process of assessing that amount for the present time—then there shall be no option for trial by jury. The case must be tried by the magistrates' court without the option. As the noble Baroness, Lady Wootton of Abinger, has just pointed out, that involves that the magistrates' court apparently may consist of a single magistrate.
Nothing that I say about the magistracy must be regarded as reflecting on the quality of their work. I have long experience of it, and I know how devoted they are to the rendering of this unpaid public service. What I am not sure about, among many things, is this: I wonder whether the magistracy desire to have this new burden imposed upon them. I have sat with magistrates and I know how often they are glad that a trial by jury is selected. I can well understand magistrates greeting with a heavy heart the 848 news that in the future, in all cases of theft, if the amount involved does not exceed £20, they have no alternative but to exercise jurisdiction in the matter. But there it is; that is the effect of this clause.
My Lords, why is this before us? It is founded, frankly and expressly, on the basis of expediency. The conclusion is that criminal business demands that this should be so. The Committee base themselves largely upon the figures given of cases in 1974, a time when the business of the court was overburdened and it was said that there would be considerable delay in bringing on cases, even of a substantial character, in the Crown Court. In paragraph 78 of the Inter-Departmental Committee Report, we learn that over one-quarter of all those committed to the Crown Court were charged with theft and related offences, but what does not emerge from that report is how many of those 16,000-odd dishonesty cases were cases involving sums not exceeding £20. We simply do not know, and we are left, I am afraid, in the area of guesswork.
My Lords, in Appendix F of the report there is a striking comparison of the cost of trial on indictment and on summary trial, both in such cases of dishonesty and cases of criminal damage—and that part of the clause does not disturb me. As one would expect, the difference in time and money involved in the trials in the two courts varies a great deal. That is undeniable, but time is not money. Far from it. Nor is money everything, although it is axiomatic that the longer a trial takes, the greater the delay in other cases lower down in the queue in being heard. We are always told, and so rightly told, that justice delayed is justice denied.
Both time and money are important. These have impressed themselves upon the Committee who say, in their paragraph 80:… can an efficient criminal justice system afford the manpower, time and accommodation involved in the Crown Court trial of such a comparatively trivial matter?The Committee answered their own question in the negative. With profound respect to them, I have to say that I am equally certain that the question, if it does arise, and if it has to be answered, is one which demands an affirmative.
If I may be permitted to make a personal reference for a moment, I speak from 849 many years of presiding over trials with juries, ever since I first sat as a recorder during an Army leave in 1942. I believe it is a melancholy fact that, with the possible exception of the Master of the Rolls, I have a longer judicial experience than any other present full-time occupant of the Bench in this country. I relate that melancholy fact not by way of pride, but merely to indicate that it is in the light of a long experience that I have formed the view that Clause 23 will not do. In my submission, it is wrong to deprive people charged with theft of an opportunity of being tried by jury, regardless of how small the matter involved may be. In the Services we cashiered officers, and in many cases saw to it that other ranks were discharged with ignominy, many times for a comparatively trivial theft. In civilian life, a postman of long service is dismissed, and he runs grave risk of losing all his pension, for stealing maybe a postal order of a face value of 50p. In other ranks of civilian life, people lose a lifetime's reputation for probity by a single action of dishonesty of a material triviality. In the face of such grave consequences, the Committee make their startling recommendation.
What are the grounds upon which the Committee advanced this recommendation? They appear to me to be three in number. I bow to your Lordships' indulgence while I summarise them. First, they say that offences of dishonesty are plainly distinguishable in their gravity according to the amount involved. Well, that is true, but they are alike, nevertheless, in remaining cases of gravity. In my judgment, none of them can be described as "comparatively trivial", to use the Committee's own phrase in another part of their Report.
Secondly, the Committee say:The primary consideration is the gravity of the offence in society's eye".They say that as opposed to how it may be regarded by the accused man himself. They go on:We do not believe that society regards small thefts as falling within the most serious 2 or 3 per cent. of offences …".That may be so, but they remain offences which are serious in the eyes of all honest men.
Thirdly, the Committee say that while they accept that monetary value is not 850 always a realistic guide to the gravity of the offence, they continue:… in the majority of cases the value of the property involved provides a reasonably reliable guide to the gravity of the offence".But they also acknowledge that their recommendation would also exclude jury trials, particularly for mean thefts from an old or disabled person, theft by a person in a position of trust, and other cases where although the stolen property may be of small material value, the circumstances of the offence may well be odious.
In the end, the Committee, as they saw it, had to choose between the two conflicting claims; on the one hand the existing right to a trial by jury for any charge of theft, and, on the other hand, the right, especially important to anyone defending a serious charge, to be tried as speedily as possible. I fully recognise the importance and the cogency of the second reason, but it cannot and does not overtop the first. The attainment of speed for the second man must not be purchased by denying the first man a right which has been his for centuries.
The difficulty confronting the Committee was clearly a great one, and that confronting this House is, I think, great; certainly its responsibility in this matter is great. I cannot for my part accept the solution advanced by that Committee. It is said that our standards of honesty have sadly declined, and the criminal statistics certainly appear to bear out that there is a very large number of offenders, far greater than years ago. But an increase in the number of offenders does not lower the standards of honesty in the eyes of all reasonable and respectable citizens. I would have nothing done that encourages the belief that small thefts are trivial and can therefore be summarily disposed of. My Lords, that belief lies at the heart of Clause 23. It is one which, with all respect to the Committee, I have to reject. I sincerely hope that that part of Clause 23 which relates to thefts and dishonest offences will be expunged and that that part never reaches the Statute Book.
§ 6.42 p.m.
§ Baroness STEWART of ALVECHURCH
My Lords, I welcome this Bill, in particular those sections of it that are based on the recommendations of 851 the James Committee, and those in relation to the redistribution of cases between the Crown Courts and the magistrates' courts. As the James Report tells us, the existing methods of allocating cases between the courts is complicated and confusing—my noble friend referred to that in his opening speech—and it often leads to long delays before cases are heard in the Crown Courts. It has been suggested during this debate that these delays are not serious. Certainly in my experience and observation the delays are sometimes very serious indeed. I have known a case of a defendant who was in prison for several months before being found Not Guilty in a Crown Court. Then the evidence of witnesses becomes blurred with the passage of time, and the uncertainty relating to the time of the trial and its outcome can make very great difficulties not only for the defendant himself or herself but for the family and friends, and only too often for employers.
The transfer of some thousands of cases a year from the Crown Courts to the magistrates courts should significantly reduce the time elapsing between arrest and the court hearing. Magistrates' courts are by their very nature much more flexible than Crown Courts. Again, in my experience, a magistrates court can start early and sit late. It can sit on an extra day without a great deal of difficulty. This is clearly quite impossible for a Crown Court whose timing is something rather more rigid than it need be and perhaps should be.
I should like to urge upon my noble friend that when this Bill comes into force, as I hope it will, very close watch should be kept on the procedure both in Crown Courts and in magistrates' courts, with special reference to the time factor, to ensure that, so far as possible, time is not wasted. We are told in the James Report that the delays in court hearings may be due to avoidable adjournments. I have no professional information about that, but it may very well be true, and certainly a number of clerks who gave evidence to that Committee said that these avoidable adjournments did take place very frequently. Matters of that kind should be looked into.
The raising of the maximum fines which can be imposed by magistrates 852 for certain offences seems to me clearly desirable, having regard to the rise in the cost of living. I was glad to note that the Bill enables the court to make an attendance centre order if a juvenile fails to pay the fine. I wonder whether my noble friend the Minister would consider the possibility of extending the role and the facilities of these centres for young people. I suggest this because I think the existing centres are undoubtedly successful within the very narrow limits in which they work. I wonder whether it would be possible, for example, for these centres to be in touch with voluntary bodies in their neighbourhoods who could perhaps help the young people to get jobs and provide for their free time in more acceptable ways than the young people have found for themselves in the past.
Finally, I wonder whether my noble friend would consider the possibility—this may not be a practical suggestion—of keeping young people better informed about the laws of our country, particularly those which concern them. It would be possible for his Department and the Department of Education to consider this, as I am sure they would get the help required from the local education authorities. I think the Home Office would have to set the wheels in motion.
§ 6.48 p.m.
§ Lord PONSONBY of SHULBREDE
My Lords, I am sure we all welcome the fact that the Criminal Law Bill has now been introduced and is making many proposals to sort out some of the antiquated aspects of our system of criminal justice. There are many aspects of the proposals which I welcome, but there are some aspects which I find hard to reconcile with my concept of justice. The proposals are drawn up in order to smooth the administration of justice and also to result in a legal aid saving of some £1¼ million a year. I am sure we would all agree that a saving in legal aid is something to be desired, but if this is to be made at the expense of justice it is a saving which is not worth making.
Part of this proposed saving may well arise from the fact that legal aid is more difficult to obtain in the magistrates' court than in the Crown Court. In one particular court in Inner London, I am told, only 30 per cent. of defendants were granted legal aid, whereas in the Crown 853 Courts it is rare to hear of any defendants who so qualify not being granted legal aid. Indeed the noble and learned Lord, Lord Gardiner, referred in his speech to this loss of legal aid. Legal aid in the magistrates' courts is in many cases granted on application to the magistrates, whereas in the Crown Courts it is usually granted on application to the courts' administrators. Your Lordships may perhaps be reminded of the unequal treatment granted to some recent well-known defendants. I will only mention the name of Mr. Peter Hain, who was denied legal aid in the magistrates' court and granted it in the Crown Court, and he was acquitted. If legal aid is not to be readily available to those defendants who need it in the magistrates' courts, one might ask how are they to be defended?
Another aspect of the administrative savings which could be made is the better deployment of judge power. In his speech on the loyal Address my noble and learned friend the Lord Chancellor referred to the increase in judge power, particularly of the second tier bench. He also referred to the beneficial effects of the Courts Act 1971, which had enabled judge power to be used as flexibly as possible, so avoiding certain hold-ups in the administration of justice. One would also hope that judge power is being used as economically as possible. Too often I fear that courts are run for the convenience of judges which can result in sittings ending unduly early in the day, thereby prolonging proceedings and often wasting the valuable and highly costly time of expert witnesses.
But I am sure, as has been voiced in many speeches today, that the greatest concern of your Lordships is the so-called administrative means by which the higher courts are to be unblocked. Last week we were reminded by the noble and learned Lord, Lord Salmon, that equality before the law is one of the pillars of freedom. The proposal to dispose of the right of trial by jury for those committing offences where the value of the article stolen is under £20 means that equality before the law for such offences will not exist. In our society I am glad to say that we still regard theft as a very serious offence, and the seriousness of a conviction for theft can determine the course of a person's life, regardless of the value of the goods alleged to have been stolen.
854 Any one of your Lordships who has sat through a morning at one of the magistrates' courts which, by nature of its geographical location, has many shops within its jurisdiction, can have nothing but the greatest sympathy for the magistrates who have endlessly to try cases of petty shoplifting. Inevitably in such a situation a magistrate, or a lay bench, must become exasperated and cynical. It is at this point that the greatest danger arises because the innocent person is in danger of having his case prejudged. Our present system at least ensures that he has the right to be tried by 12 of his fellow citizens whose minds have not been blunted by hearing interminable, similar cases, many of which I regret will have had put up a similar defence. It is far better that we, as a society, should preserve our established right to trial by jury in the case of theft than for innocent people to be found guilty in such circumstances.
There are genuine cases of women absentmindedly putting goods to be purchased in a supermarket into the wrong shopping bag and forgetting to declare them at the check-out. Indeed, my own wife is so terrified of doing this that she refuses to venture into the supermarkets and sends me out to do the shopping. One might ask who is to decide the value of the goods alleged to have been stolen. There may not be much difficulty in deciding this in the case of goods stolen from shops, but what happens when the goods, for example, are second-hand clothes? Who is to decide the value? Will legal aid be made available if there is to be an argument about the value? If so, how can this possibly make the savings in legal aid or court time which are envisaged in the Bill?
The interests of justice demand that theft is an offence which should be tried by jury, and indeed my noble and learned friend the Lord Chancellor, in speaking on the loyal Address, said that these proposals had caused him some anxiety, but that he was convinced, after reading the James Report, that better justice would be achieved by bringing such cases to trial in the magistrates' court earlier than letting them hang fire until they could be tried in the Crown Court. Yet the James Report made it clear that it was primarily an administrative problem:… that defendants on serious charges are suffering the injustice of long delayed trial while855the time of the Crown Court is partly occupied with minor cases of low monetary value.Yet delays of up to three months are already occurring in the magistrates' courts in London, as we heard from the noble Lord, Lord Wigoder.
Whatever decision is finally come to by your Lordships' House on this matter we must also give serious consideration to the method of trial in the magistrates' courts. It has been suggested that prosecution evidence in the magistrates' court should be disclosed in the same way as it is disclosed in the Crown Court. There are no proposals in the Bill concerning this. This is a serious omission. No defendant can possibly consider that he has had a fair defence when his defence counsel has had no previous knowledge of the case he is expected to answer. These, my Lords, are some of the matters which I feel you will have to look at very seriously at the Committee stage of the Bill.
§ Baroness PHILLIPS
My Lords, before the noble Lord sits down, as a magistrate who sits in Central London and is frequently confronted by the type of case to which the noble Lord has referred, may I say that I should not like it to go on record that magistrates become cynical or exasperated. Magistrates retain their patience and their care with every case they hear, as do the Law Lords.
§ Lord PONSONBY of SHULBREDE
My Lords, I note the noble Baroness's remarks, and I am quite certain that she does not in fact herself move into that cynical sphere of feelings.
§ 6.57 p.m.
§ Lord GIFFORD
My Lords, I have not ventured to speak in your Lordships' House for some two years. I have been devoting my energies to the practice of law. It is because this Bill affects areas in which I have had very much direct experience that I break a rather long silence, and in doing so I declare the possible interest that I have as a member of the Bar. I want to deal with the two most far-reaching Parts of this Bill. First, the Part which takes away the right to jury trial from thousands of people, particularly those accused of dishonesty, and, secondly, the Part which creates a battery of offences directed against squatters and 856 other occupiers of property, for it is my view that both equally are unnecessary, both are retrograde, and both will have dangerous and damaging consequences.
Given that so many noble Lords have spoken so eloquently about the first of those two Parts, I can cut down the remarks that I was going to make. May I limit my contribution to two matters so far as the James Committee proposals are concerned. First, to ask your Lordships to remember who are the people who are going to be affected by the change that is to come. They are often the ordinary citizens who are most likely to need the guarantee which is recognised as one of the best guarantees of liberty; the right to trial by jury. They will be housewives mistakenly thought to have been shoplifting; employees wrongly believed to have dipped into the till or pinched the petty cash, or of taking something from a fellow employee's wallet. They will be tradesmen who honestly, but foolishly, buy stolen articles. They will be customers who, by honest miscalculation, write cheques which bounce. They will be journalists who obtain access to confidential information.
Every person who has practised in the criminal law has known cases of this kind where juries have proved to have been a guarantee of innocence and liberty, where they have done justice to an innocent person. They are cases where the consequences of conviction would be crushing. They are cases where the value of the thing alleged to have been stolen is irrelevant. Your Lordships will know both in fact and in literature of the story of the Winslow boy accused of taking ten shillings.
That is one consideration—the kinds of people who will he involved and affected. The other consideration, which perhaps has not been sufficiently spelled out, is the reason why in fact the right to trial by jury is considered a necessary and desirable guarantee of liberty, a good test of innocence. There are three reasons. First and foremost, juries are drawn from the common people; young and old, rich and poor, black and white. Nearly every accused person will find on a jury people who have an understanding of his or her conditions of life, habits of thought, of speech and of conduct. Magistrates, with the best will in the world, do not have that 857 wide understanding and knowledge of human living conditions, and it is precisely the people whom benches of magistrates find it difficult to understand—difficult even to understand their speech, the way they express themselves or the way they may be thinking—in respect of whom, it is suggested, magistrates should deal with some of these serious offences.
The second reason is that juries come fresh to their task. I am sorry that the noble Baroness, Lady Phillips, is not in her place because she intervened to say that she, as a magistrate, dealt with many such cases as I have described. I am sure she does and that she does justice to them, but many magistrates become casehardened and too often that experience of case after case of this or that crime leads them to be contemptuous of the persons whom they see before them in their dock. The jury comes fresh to it and in my experience and in the experience of many wiser than I, the jury bring a conscientious common sense into their deliberations.
Thirdly, as has been pointed out, jury trials have a much fairer procedure. Also as has been pointed out, the case against one in a magistrates' court is not known until the trial begins. One is often denied legal aid and frequently the hearing of one's case will be adjourned half way and put off for weeks and sometimes even months. My plea to your Lordships is to extend jury trial; extend it to serious offences where it is not at present enjoyed, and particularly extend it to cases of assault against the police, which everyone recognises, and particularly the magistrates who try it, to be an offence of great gravity involving conflict between citizens and authority yet which carries no right of jury trial. Extend it and make such arrangements as are necessary to build more courts, which has been done, and create more judges, which has been done. But do not cut it down.
I come to Part II of the Bill, and I do so having had experience of representing many squatters and occupiers of property, students who sit in and so on, for let us not forget that we are talking in Part II not only about squatters but also about persons involved in industrial disputes and those involved in disputes at university campuses and other arenas. The overwhelming majority of persons who resort 858 to the occupation of premises are decent people who sit in, occupy or squat not for gain or greed, for there is very little to be had, and certainly not for pleasure, for there is none to be had, but as the victims of a desperate predicament. They have no home or they have been made redundant from a lifetime's job, or the grievances which they have tried to have redressed are spurned by an unhearing authority. Time and again I have heard hard-bitten judges moved to sympathy when faced with some of the civil proceedings which come before them, where the law of course takes its course and evictions are ordered but where judges cannot stop themselves listening to the pleas that are put forward and expressing understanding of the plight.
Often it has been healthy for society that those people have taken the stand that they have. There have been occupations by workers that have saved jobs; for example, in the Triumph factory at Meriden, in the Fisher-Bendix factory at Corby, or, to take an example from Scotland, of the shipbuilders of the Upper Clyde who saved jobs by refusing to accept the decision of a bankrupt management and stayed put in order to try to keep their jobs and their business going.
Except for a tiny few, squatters have occupied empty and not residential property, public and not private housing. Squatters in recent years have shamed many complacent local authorities into much-needed action. In these unhappy conflicts, as unhappy they are, between the haves and have-nots, generally the police stand aside, are not involved and tell the parties to pursue their civil remedies, civil remedies incidentally which, contrary to the views of the noble Earl, Lord Mansfield, are effective and speedy. But the police, rightly, are not involved if there is no violence. It would be a recipe for uncontrollable social tension if the persons about whom I have been talking were to be subject to arrest as common criminals.
As it stands, the Bill will affect and change this position of general nonintervention by the police in a number of cases. To take an example of the occupation of a factory faced with closure where the workers stay put, it may be said that their very numbers, because numbers will be involved, constitute a threat of violence 859 within the terms of Clause 6, or maybe a caretaker or a security officer will complain and say that he has been threatened with violence. In those circumstances, the police will have a duty to enter under the powers given by Clause 11 and to battle it out with the persons inside the factory. Is that a desirable way of resolving such a conflict? I ask particularly: has the TUC been consulted about the possible effects of the Bill on their membership?
The Bill makes it an offence to use or threaten violence, but that is not a new offence; there is a perfectly good offence of assault which from time to time persons who squat are charged with. There is a perfectly good offence of criminal damage —violence to property—with which squatters are charged. What is the need for this new offence created in Clause 8? One can ask the same question for the other clauses. What evidence is there that they are needed? What purpose do they serve? What justification is there for the harm they will undoubtedly cause if the powers in question are over-used or abused, as they certainly will be from time to time, by unjustified complaints to the police or by hasty action by the police?
Clause 7 deals with adverse occupation of residential premises. It is designed to allow the police, if someone occupies residential property, to arrest and charge the person concerned; but the police, as I believe they have made clear on a number of occasions, act mainly in the rare cases where there has been an occupation of residential property. The power of arrest is not needed. The power to eject on the invitation of the owner is there. What is the evidence that this new power of arrest is needed? Clause 8 covers trespassing with a weapon of offence. What is the evidence that squatters up and down the country have been arming themselves with weapons to justify this new offence? It is certainly capable of being abused by false allegations. Anybody who uses a weapon of offence against a person who has a right to go on property can be charged with various other offences. Why is this new power needed?
There is also Clause 9 which contains the embassy power. A Question was asked in the House of Commons on 21st June which elicited the information from Mr. Brynmor John that there had been six 860 incidents involving embassies known to the police in London in the last two years. No weapons were used or displayed and there was no actual bodily injury. The police act promptly and efficiently if called upon to deal with a sit-in at an embassy. Such occasions are usually the result of very severe grievance against the Government concerned. Is it right that a person should be treated as a criminal if he expresses a protest in a peaceful way by sitting in an embassy? I ask again, what evidence is there to justify it? What purpose is being served?
So much for the Bill as it stands, but it is now necessary to talk of the Bill as my noble friend Lord Harris threatens it may become. He has said that an extension of Clause 7—a much more generalised criminal offence of staying in a property as a trespasser after being asked to leave—is "up for grabs" and may well go into the Bill. Let me remind the House that this debate has been going on for a very long time. In June 1974 the Law Commission issued a working paper in which it proposed the creation of such an offence. There followed 21 months of prolonged discussion, with representations coming in from all sides, as to whether a generalised offence of remaining on property after being asked to leave should be put on the Statute Book. Twenty-one months later, in its report, the Law Commission changed its view and decided that such an offence was not desirable or needed. The reasons it gave are set put in paragraph 42 of the report. It is necessary to read them:Views were sharply divided on the acceptability of the proposed offence of remaining on property after having been ordered to leave. Some commentators were strongly in favour of the creation of this offence. These were mainly organisations concerned with the administration and ownership of property. Others were strongly opposed to such an offence. Some of these considered that such a provision would be an unacceptable limitation of the right to peaceful protest; some considered that such a provision would unduly limit action in support of industrial disputes; and some considered it inappropriate to meet the practical initiative of the homeless with criminal sanctions. But among those who were opposed to the offence were organisations who based their opposition on the widest social ground that a criminal offence which might be applied at an early stage in a delicate situation could aggravate the social tensions involved. Among these were the Law Reform and Procedure Committee of the Senate of the Inns of Court and the Bar, who considered that the ' remaining on' offence should not apply to private premises, whether residential or business, and the Association of Chief Police Officers, who saw danger in new areas 861 of confrontation with misguided but well meaning members of the public which could be avoided by not extending the criminal law. In addition, a number of local authorities with experience of squatting problems and some university proctors were opposed to the introduction of the criminal law in this area.That debate, resulting in that conclusion, might well have resulted—and we thought that it had done so—in the Government taking the view that the Law Commission's proposals should not be further extended. But, today, on the Second Reading of the Bill, my noble friend invites the country, in Parliament and outside, to yet another trial of strength, yet another bout of discussions to take place over the few months of the Parliamentary timetable. Is it right that that should be the way in which new offences come on to the Statute Book? Will Parliament be able to make the best decisions? I appeal to my noble friend not to allow himself to be stampeded, by people who have not considered the implications of a new offence very deeply, into making amendments which many persons, including local authorities, police officers and lawyers who have, have come to the conclusion should not be entertained. It would be a disastrous extension to the criminal law. It would make into potential criminals the many thousands of people—some 50,000, it is estimated—who have resorted to squatting in desperation at their homeless condition. It will bring many more cases into the magistrates' and Crown courts than the proposals of the other Parts of the Bill will remove. I appeal to the Government at least to stand—if it is decided that any of these new powers are needed—by the Law Commission's report.
§ 7.18 p.m.
§ Lord HALE
My Lords, I apologise if I rose a little late to make this speech, but if anyone cares to look at the list of speakers he will find that I have had to pause for a moment to see what has happened to four or five of the speakers who were down to precede me. I have therefore been in some difficulty and have committed a discourtesy to the noble Lord in front of me in returning from my second very brief absence from the Chamber. I have been here for the whole of the afternoon apart from that, and I have been here all that time because I have been thoroughly enjoying myself and because there has hardly been a speech 862 that I have not enjoyed. There have been some that have thrilled me.
I appreciate that, in the face of the problems confronting the nation today, all this may seem an enclave of non-reality to those outside. It is not, of course. No one in this Assembly needs to be told that the preservation of the law, of its decency, of its sincerity and the increase of public trust are a vital element in our life while we are facing tragedy in many directions and where revolution, if it ever came, could come through the law courts, as has been threatened in America. There, the disruption of justice, the cooperation of counsel in the disruption of justice, the prevention of the carrying out of what is believed to be justice—often on quite sincerely held grounds that justice is not being done—are becoming a matter of some magnitude.
I have long since forgotten what tiny bit of law I ever knew. I read the report of the Law Commission with very great joy and very great pleasure. It is well written, it is fascinating to read; the arguments in it and in particular the papers that were issued are fascinating, too. I understand that it has been suggested that the Commission have taken rather a long time over this matter, but at least it is time that has been well employed, and I am one who has considerable grievances in regard to the time employed in such Commissions. One knows that they are bound to have this criticism, that there is bound to be some consideration for the Government. I must confess that I think we owe them an apology—I really do—if, after the labours they have put in, after the earnestness and the brilliance they have put in to what is a very serious problem, it is said, "We are going to set up another committee on that; we are leaving out this clause and that clause; and we are not going to adopt your proposal, a very important proposal, about the abolition of conspiracies in connection with the one or two matters outside the general ambit which we have drawn attention to and which we have incorporated clauses on".
On the whole I could not be too critical of the Government of leaving out the clause which seems to be a complete aberration on the part of the Commission. Somewhere or other—I think it is Clause 24 863 or it may be Clause 22—there is the proposal to make a special penalty for being seen committing sexual intercourse or other sexual acts in public. The Law Commission's report states regarding Clause 21:This clause creates a new summary offence penalising anyone who engages in sexual intercourse or (whether or not with another) in other sexual behaviour in circumstances when he knows or ought to know that he is likely to be seen by others to whom his conduct is likely to cause serious offence.I think that at least the word "seen" ought to have been defined, as to whether someone was seen through a telescope, or with binoculars or with the naked eye; and the distance should also have been defined. This is really, in these days, not the wisest of proposals, when the lady who has watched through binoculars for a couple of hours, rung up the police, and complained, then goes to see it all on television. I think it is singularly objectionable. I really do. To start with, we shall have people employed by sensational newspapers performing the act in order to get a prosecution reported on a really juicy page or two. Secondly, we will be coming back in terms of evidence to something like the old "Crim. Con." case, and then a very shy policeman will have to describe the sort of evolutions that were performed in order to commit the offence.
In the end, when somebody is "pinched", the young lady will say, "Well, I am getting married tomorrow and I thought that we might start an hour or two in advance." Frankly, this is the type of thing that is more likely to bring justice into contempt. If, with very great respect, I may humbly engage in a very minor conflict with a very distinguished Lord Justice who has sat on the Bench longer than almost any living judge, I should say that I just did not understand the point that the amount you pinch makes the claim worse. My hearing is bad and I am liable to err, but I understood that it was said that the question of whether you pinch £20 or £40 is really material. I have had a very long experience indeed with, at any rate, petty offenders. They pinch what they can get. If you graduate as a safe-breaker and break into Lloyd's Bank, and you open the safe and find 150 quid or 300 quid in it, you take what is there.
864 When all is said and done, theft is a serious matter, as the noble Lord said, and I respect that point. It can occur in very odd circumstances; it can occur in mitigating circumstances. I was rather surprised to hear a Lord Justice stating that point with such clarity, because one knows that this is what happens, except slightly in reverse: if you pinch enough you are not prosecuted at all. If you steal a million there is never any question of a prosecution. Nobody ever heard of anyone stealing a million. We read in the financial Press every day—not, as it used to be, once every three months—about a great sensation, a financial scandal. the resignation of directors and so on, and then there is the whole ambit of procedure, and the Board of Trade is investigating. Then when people start to ask questions in another place—and they are very anxious sometimes to ask questions there—it is said that the Director of Public Prosecutions has been appraised of the matter and is investigating. Then six months later the witnesses have gone abroad, and so on. I do not greatly object to people not being prosecuted. I doubt whether prosecuting anyone ever did very much good to anybody, but the selectivity of it is a matter of comment and it is a matter that should undermine the system.
I very strongly approve of the proposal that the authority of someone—the Bill says the Director of Public Prosecutions—should be obtained to authorise certain prosecutions; it is an eminently sensible procedure. But I am a little concerned about the position that the Director of Public Prosecutions plays in the judicial hierarchy today. I have nothing against him. I do not know him. I do not make the slightest imputation on his ability. on his character, or anything else. But he is too big. If one goes back and reads the history of this matter we see that this was a nice little institution in which a very honourable and very honest man was appointed. But now he really is too big; he is running the show to a very large extent, and he is hand in glove with that mysterious man—I am not talking now about my Member of Parliament, Mr. Silkin, but the holder of the office—the Attorney General, who is not merely a hermaphrodite, but is whatever is the appropriate word for a person with three, four or five functions and conflicting personalities and conflicting offices, some 865 judicial, some semi-judicial, some quasi-judicial (if that is different; I do not think it is) and so on. He has to advise the Government on one thing and not tell the Government about another. It is an anomalous position which has been recognised for years.
My Lords, I want to say why I rejoice about the abolition of conspiracy. I agree with every word the Commission say upon this point, but I think that perhaps even they do not realise that there is another very evil thing about conspiracy. It is not the use of the charge of conspiracy. In my native Midlands, where we were fairly well behaved, conspiracy did not pop up; we have very few trials. It is the threat of the use of it. It is the double standard of justice. It is the saying to Mr. Jones, "Yes, but there were two of you in this. You were working together, and you know what could happen to you if we charge you with conspiracy. It is not a question of your going before the beaks, where you have a friend or two; it is going to the Assizes—and there is practically no limit to the punishment." It is the fear of "the red judge"—and there was a fear of "the red judge" in those days.
I look back now and I see quite surprising alterations. Conspiracy was always used in connection with trade disputes: not merely trade union disputes, but the organisation of farmers trying to get the price of corn down, and so on—the sort of thing that could produce the threat of charges. It had a political connotation. Indeed, of course, in those days a lot of law had a political connotation. If one reads the history of our industrial law since Lord Halsbury became Lord Chancellor, one finds that it did not even progress. One finds things that, now, no judge likes to read or remember. So this threat of a prosecution—so vague, so difficult to resist—was always something which rather undermined the general faith in the courts and detracted from the respect which they enjoyed.
As to the rest of the Bill, I listened to what I could of the noble Lord in front of me talking about the problem of overcrowding and the problem of those who trespass to occupy. Of course, that was another facet of the conspiracy law in the case of the Sierra Leone Embassy. When the decision in that case was laid down I 866 understand that counsel asked whether it was not now the case that a dozen girl guides walking together, in organisation, through the fields picking primroses might not be convicted of conspiracy and sent to prison for years. I understand—I do not know the truth of this; I have not read the quotation—that the Judiciary replied that that was all right, no one would dream of prosecuting them for anything like that. But if girl guides get bright and read the law, they might think they might get prosecuted, and even that is not good for the health. So the Government come along again and they say, "We are going to delay this; we are going to postpone that; we are going to appoint a committee".
I have said more than 1 intended, and this debate has gone on for a long time. It has been a very good debate. I must say that I listened to the speech of the noble Lord, Lord Wigoder, with very great respect and with very great attention. He said better than I could almost everything I would have wished to say. He put forward better than I could many things; and, what is more, he was able to talk as one who is practising now about what is happening now, what are the problems now and how it works now. I do not believe in ordering people to pay £1,000 when you know they have not got 1,000 shillings. It is dishonest. I sat for four years on the Committee dealing with the collection of debt. We had a very distinguished judge—a very nice one, too; from the Probate, Divorce and Admiralty Division—and the present Queen's Remembrancer, and so on. We tried very hard. I suggested in the end that we should pass a Statute to say that everyone was a limited company at birth and then could operate from the age of 18. I still suggest that that is the simplest way to deal with a lot of silly problems. It is not really the job of judges to collect debts.
My Lords, I apologise. I am very grateful to all your Lordships. I have listened with passionate attention. I felt for a moment that I was returning from the Elysian Fields with pleasure; and I hope that, in Committee, Lord Gardiner and others will propose some of the Amendments that they and others have shown are necessary to this Bill.
§ 7.37 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I think this has been a valuable debate and, certainly speaking for myself and, indeed, for the Government collectively, we are very grateful to all those who have participated in it. We will certainly study with considerable care and attention what has been said. I started the debate in rather a hopeful mood following the speech which the noble Earl made on the previous Bill, the Marriage (Scotland) Bill, in which he indicated that he regarded this typically as such a fairminded measure proposed by the Government that he thought we could probably even dispense with the Committee stage. I waited with some spirit of optimism to hear the same assurance given on this Bill. Unhappily, it was not forthcoming. Nevertheless, I welcome the general attitude, if I may say so, of the noble Earl to this Bill, and indeed of most other noble Lords who have participated in this debate. I will go through the matters which we have been discussing today, dealing with a number of the points which have been made. Inevitably, I shall fail to deal with some, but I shall attempt to clear up any outstanding points before the next stage of the Bill. If I tried to deal with all the points made during the cross-examination to which I was subjected by the noble and learned Lord, Lord Morris of Borth-y-Gest, I think I would probably devote virtually the whole of my speech to dealing with the points he made. It was a vigorous cross-examination, gently delivered. As I say, I will deal with some of the points but I will deal with others, if I may, in correspondence.
First, perhaps I may deal with Part I of the Bill and the law on conspiracy. I think this was welcomed, broadly speaking, subject to a few qualifications, by the noble Earl speaking from the Front Bench opposite, and by the noble Lord, Lord Wigoder, and indeed by most others. The noble and learned Lord, Lord Morris of Borth-y-Gest, said he was not opposing Part I of the Bill. Nevertheless, he did have a number of questions, and I shall deal with some of these now. The effect of Part I is, of course, to limit the offence of conspiracy to agreement to commit a substantive criminal offence. Except for conspiracy to defraud and conspiracy in relation to decency and 868 morals, an agreement to do something which would, in itself, be an offence will no longer he a criminal conspiracy. Conspiracy to pervert the course of justice is preserved because that is a substantive offence, as the Law Commission mentioned in their report, but conspiracy to trespass, laid down in Kamara, is abolished by Clause 5. The gap left by that abolition is filled by the new offence in Clause 9.
The noble and learned Lord was also correct in suggesting that the later subsections of Clause 1 do no more than to set out what is probably the effect of present law. My noble and learned friend Lord Gardiner and the noble Lord, Lord Wigoder, raised the question of Clause 5(3). This has been added to the Bill drafted by the Law Commission; but this has been done in consequence of the Government decision not to include in this Bill Part III of that Bill. While the law in the field of obscenity and indecency is being reviewed, common law in the field of public morals and decency should be preserved in its present form. That is why that particular subsection remains. I should say, while dealing precisely with the point on obscenity, that the Government are considering one minor and technical Amendment, which experience has found to be desirable in the procedure relating to seized publications laid down by the Obscene Publications Acts.
My Lords, I will now come to the question of squatting. I think that there was a general welcome, again in somewhat guarded terms, for the Government proposals. I indicated when I spoke earlier that we would listen with care to the speeches made in this House. I invited a particularly vigorous examination of the Government's proposals on this particular point. We recognise that there is widespread public concern in this matter. If I may say so to my noble friend Lord Gifford, I do not think that my invitation to the House to participate in this debate is quite as sinister as he implied. We must recognise that there is serious public concern in this matter. I recognise at once with my noble friend and with the noble and learned Lord, Lord Gardiner, that many decent people do become involved in squatting. Nobody will try to suggest anything other. But I must say that there have been a number of episodes in recent months where I 869 would not describe the people in quite that particular fashion. It is acts of this sort which lead to a great deal of anxiety which has been expressed both in this House and in another place. It is because of that that we are particularly anxious to take the collective view of Parliament on this matter to decide how we should proceed. We recognise that we are dealing with a highly sensitive area of public policy here and that, I repeat, is why we are particularly keen in this matter to listen to what is said both in this House and in another place.
The noble and learned Lord, Lord Morris of Borth-y-Gest, also asked a question about Part II. Clause 6 provides that it should not be a criminal offence under this Bill for a displaced residential occupier to seek to enter his own home, but in this respect the Bill does not affect the existing common and statutory law which might be relevant to such circumstances. Clause 8 is not limited to residential premises and will apply to any other premises and also to land not built on. I can also confirm in relation to Clause 9 that simple trespass on the premises of the Foreign Office, or, for that matter, on the premises of the Home Office, will not be a criminal offence, whereas trespass in a foreign embassy will be. The reason why this particular recommendation was made by the Law Commission is set out on page 69 of their report in paragraph 2.86 where they say:Special considerations apply to trespass on foreign embassies by reason of our international obligations towards them. The Vienna Convention on Diplomatic Relations signed in 1961 set out in the schedule to the Diplomatic Privileges Act 1964 requires the receiving State to take all appropriate steps to protect the premises of a mission against any intrusion or damage and to prevent any disturbance of the peace of a mission or impairment of its dignity.That is clearly an international obligation and, to consider the matter in self-interested terms, it seems to me desirable from the point of view of British domestic interests that we insist on a high standard in this matter.
My Lords, I will now return to the James recommendations where I accept that there is widespread anxiety in the House, quite properly, because there is involved here a major consideration to which my noble and learned friend drew our attention in the Address on the recent Queen's Speech. I will begin by 870 dealing with a point of definition raised by the noble Lord, Lord Wigoder. He asked what was meant by the backlog. The backlog to which I referred means the total number of cases which have been committed for trial and where trial has not started, Of course, there is a proportion of those cases which are not yet ready for trial, as he said. Clearly, no precise figure can be given for these. But it is clear that the latest figures are much too high. The intervals between committal and trial in London are 15 weeks on average—that is where the defendant is in custody—and 25 weeks where he is on bail. The noble Lord, Lord Wigoder, may argue that a proportion of the cases awaiting trial are not ready for trial. I indicated in some cases that this was so; but the fact is that the number of such cases has increased by 50 per cent. in the last two years and this is perhaps the most worrying single aspect of this matter.
The backlog in the London Crown Courts is therefore nearly six months in bail cases and in the South-East circuit, outside London, it is nearly four months. My noble friend Lady Stewart said that these delays are serious. They are serious because, despite all the steps that we took—and the noble Lord, Lord Foot, and I spent a lot of time on the Bail Act in the last Session—we all recognise that a significant number of people will, in fact, be remanded in custody notwithstanding the provisions of the new legislation, kept in custody and then, at their trial, acquitted.
These delays are a matter of profound importance certainly to this group of people and more than to just these people. Consider the anxiety in the family of a man remanded on bail. Week follows week and perhaps there has been publicity in the local newspapers; and, as I indicated, in London the backlog can be up to six months in bail cases. I think I must be clear in this matter. There is a substantial problem here. I recognise only too clearly the anxieties expressed by the noble and learned Lord and by others in this matter, but I think we have to recognise the severe pressures on judicial business.
§ Lord FOOT
My Lords, I think that my noble friend Lord Wigoder was making this point. He was asking the Minister to define what he meant by a backlog. He was saying that obviously there is a 871 delay between somebody being committed for trial and being tried. He was asking the Minister to explain what he meant by saying a "backlog" as opposed to the ordinary delay between committal and trial.
§ Lord HARRIS of GREENWICH
I think, my Lords, with respect, that I have answered that question; and however it is defined, what is clear is that the period is expanding rapidly. My Lords, what I know in terms of my own day-to-day Home Office responsibilities for the police is that in a substantial number of police force areas in this country at the moment the level of crime is still increasing, and therefore the pressure on the system is increasing. This is an unfortunate and unpalatable situation which we have to recognise when we have this debate today.
My noble friend Lady Wootton asked whether it would be right for a single lay justice to determine the mode of trial even in an "either way" offence, such as causing death by dangerous driving. My noble friend correctly interpreted the Bill. We will certainly consider further in Committee whether the Government's proposals in this matter are right. Under the existing law, a single lay justice can be examining justices as defined by the Magistrates' Courts Act 1952. It is therefore possible for a single justice to accept an application by the accused that an indictable case be tried summarily. Since, however, the single justice, both under the existing law and under this Bill, could not go on to try the case, it is unusual for a single justice to deal with the case unless he knows in advance that the case will go to the Crown Court. Nevertheless, my noble friend has expressed anxieties on this point, and we will gladly look at the matter before the next stage of the Bill.
My noble and learned friend Lord Gardiner referred to the extra work on magistrates' courts. He is absolutely right in this matter. He asked about staff and accommodation. We are providing an additional £500,000 more for staff. Nevertheless, we must remember that magistrates' courts now deal with 400,000 indictable offences and one and a half million other cases. So an extra 8,000 cases—which is what we are talking about here—is hardly an intolerable 872 additional burden, even though I accept some of these, cases will inevitably take longer than average.
There is a clear difference of opinion which has been expressed today. The Government believe that the James Committee were right. The Committee said in paragraph 87 of their report that defendants on serious charges were suffering the injustice of long delayed trial while the time of the Crown Court was partly occupied with minor cases of low monetary value. I repeat this point before going on to turn to other matters: we cannot pretend that there is not a real dilemma here. The House must recognise that, unless there is some change in the division of criminal business, the delays in the Crown Courts will continue to lengthen. There is no point in pretending that we have open-ended resources, either physical or, if I may say so, of judicial manpower where we can just continue to add ceaselessly to the number of Crown Courts in this country. We must recognise that if in fact we decide it would be wrong to follow the James recommendations, this would have a direct bearing on the delays in the judicial system which we are experiencing at the moment.
My noble and learned friend Lord Gardiner criticised the fact that the Bill does not include provisions to implement the recommendations of the Devlin Report on the evidence of identification in criminal cases. My right honourable friend the Home Secretary has already announced that he did not expect to bring forward legislation until there has been an opportunity to assess the impact of the guidelines for cases involving evidence of visual identification which were laid down in the Court of Appeal judgment in R. v Turnbull. My right honourable friend intends issuing a new circular to the police about conduct of identification parades and the showing of photographs, revising the current guidelines along the general lines recommended by the Devlin Committee. We are considering at the moment whether any other desirable changes should be effected by administrative action.
My Lords, I hope that I have covered most of the major points raised in the debate. As I have indicated, I personally found it an interesting and useful debate. Certainly the Government will study what 873 has been said. This is an important and valuable Bill. Even so, I am sure that in many respects it can be improved. We will therefore listen carefully to what is proposed at a later stage of our deliberations. I hope the Bill will now be read a second time.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.