Skip to main content

Clause 42—(Application To Scotland)

Volume 65: debated on Monday 20 July 1914

The text on this page has been created from Hansard archive content, it may contain typographical errors.

This Act in its application to Scotland shall be subject to the following modifications:—

  • (1) The Secretary for Scotland shall be substituted for the Secretary of State; the Prison Commissioners for Scotland shall be substituted for the Prison Commissioners; the Prisons (Scotland) Act, 1877, shall be substituted for the Prison Act, 1877; the Police (Scotland) Act, 1890, shall be substituted for the Police Act, 1890; the Fine or Imprisonment (Scotland and Ireland) Act, 1899, shall be substituted for Section nine of the Prison Act, 1898; an institution established in Scotland under Part I. of the Prevention of Crime Act. 1908, shall be substituted for a Borstal institution:
  • (2) Section one of this Act shall not apply and in lieu thereof the following provisions shall be substituted:—
  • (a) On conviction of any person by a Court of Summary Jurisdiction the Court shall allow time for the payment of any sum adjudged to be paid by such person in respect of such conviction, unless it is satisfied that he is possessed of sufficient means to enable him to pay the sum forthwith, or unless, upon being asked by the Court whether he desires that time should be allowed for payment, he does not express any such desire, or fails to satisfy the Court that he has a fixed abode within its jurisdiction, or unless the Court for any other special reason is satisfied that no time should be allowed;
  • (b) Where any such person desires to be allowed time for payment, the Court, in deciding what time shall be allowed, shall consider any representation made by him, but the time allowed shall not be less than seven clear days:
    • Provided that, if before the expiration of the time allowed the person convicted surrenders himself to the Court and states that he prefers immediate imprisonment to awaiting the expiration of the time allowed, the Court may authorise the clerk of Court to issue forthwith an extract of the finding and sentence in the form of the Second Schedule to this Act, and the provisions of the Summary Jurisdiction (Scotland) Act, 1908, shall apply to such extract as if it were one of the forms included in Schedule E to that Act;
  • (c) Where a person so allowed time for payment as aforesaid appears to the Court to be not less than sixteen nor more than twenty-one years of age, the Court may, if it thinks fit and subject to any rules made under this Act, order that he be placed under the supervision of such person as may be appointed by the Court until the sum adjudged to be paid is paid, and in such case, before issuing an extract of the conviction and sentence, the clerk of Court shall again lay the complaint before the. Court, and the Court shall consider any report as to the conduct and means of the offender which may be made by the person under whose supervision the offender has been placed;
  • (d) In all cases where time is not allowed for payment, the reasons of the Court for not so allowing a time shall be stated in the finding and sentence:
  • (3) Section two of this Act shall not apply, and in lieu thereof the following provisions shall be substituted:—
    • "Where time has been allowed for payment of a sum adjudged to be paid by any person in respect of his conviction before a Court of Summary Jurisdiction, the Court may, subject to any rules made under this Act, on an application by or on behalf of such person, and after giving the prosecutor an opportunity of being heard, allow further time for the payment of such sum or order payment thereof by instalments":
  • (4) Section three of this Act shall apply, provided that a reference to the conviction or order shall be deemed to be a reference to the finding and sentence, and a reference to a warrant of commitment shall be deemed to be a reference to an extract of the finding and sentence:
  • (5) Sub-section (2) of Section four of the Act shall not apply:
  • (6) Section five of this Act shall not apply: Provided that in Scotland a Court of Summary Jurisdiction, in fixing the amount of any fine to be imposed on any offender, shall take into consideration, amongst other things, the means of the offender so far as they appear or are known to the Court:
  • (7) Section six of this Act shall not apply:
  • (8) Section ten of this Act shall not apply: Provided that in Scotland Section one of the Prevention of Crime Act, 1908, shall be construed as if after the words "penal servitude or imprisonment" there were inserted the words "or is convicted by the sheriff summarily of an offence for which he is liable to be sentenced to imprisonment":
  • (9) Sections fourteen to twenty-four, both inclusive, and Sections twenty-seven to thirty-one, both inclusive, of this Act, shall not apply:
  • (10) Provision may be made by rules under the Prisons (Scotland) Act, 1877, for enabling a prisoner sentenced to imprisonment, whether by one sentence or cumulative sentences, for a period prescribed by the rules, to earn by special industry and good conduct a remission of a portion of his imprisonment, and on his discharge his sentence shall be deemed to have expired:
  • (11) It shall be lawful for the High Court of Justiciary by Act of Adjournal to make rules for regulating the procedure under this Act.
  • I beg to move, at the end of Sub-section (1), to insert the words,

    "a reference to a sum of money adjudged to be paid, shall be deemed to be a reference to a penalty as defined in Section two of the Summary Jurisdiction (Scotland) Act, 1908."
    I apologise for this Amendment and several others which I propose to move not being upon the Paper. The House knows the circumstances under which this Bill is being discussed. I may also say that I have been receiving up to Friday last certain representations from Scotland regarding the Bill, and for that reason I did not put the Amendments down on the Paper. In these circumstances I to-day furnished the right hon. Gentleman the Member for Central Glasgow (Mr. Scott Dickson) and the hon. Member for West Edinburgh (Mr. Clyde) with a copy of the Amendments which I proposed to move. When this Bill went into Committee there was no definition at all of "a sum of money adjudged to be paid." The phrase was thought to be quite intelligible. It was used in an Act of Parliament known as the Fine or Imprisonment (Scotland and Ireland) Act, 1899, and for that reason no translation of the phrase was thought to be necessary. During the passage of the Bill through Committee by Section 41, Sub-section (2), a definition of those words was inserted, as hon. Members will see by referring to the Bill. Although the definition of those words as given is quite accurate and intelligible in England, it is inapplicable to Scotland, and to our procedure and nomenclature in Scotland, and therefore it becomes necessary that these words should be defined in their application to Scotland. The Amendment I propose provides the requisite definition. This could not be done by merely verbal substitution, because that would not make the Clause read.

    As there is not a Scottish Member in the House, of course we cordially agree to this Amendment.

    I do not think there is a single hon. Member in the House who has the slightest idea what we are voting for. Might I suggest that it is a serious matter that we should have to deal with Amendments in this way? The Government ought to have put these Amendments on the Paper some days ago, instead of putting unfortunate English Members to such a brain-straining task. I do not think this is treating the House of Commons fairly. One is anxious to get this Bill, but I do hope that in future the Lord Advocate will give us proper notice of intricate Amendments of this kind.

    I would like to explain that the hon. Gentleman is doing the Scottish Members here a vital injustice. My hon. Friend the Member for Stirlingshire (Dr. Chapple), who put that beautiful algebraical Amendment on the Paper, assures me that this is perfectly simple.

    I know that my hon. Friend the late Lord Advocate, and also the late Solcitor-General, sat here for a long time, and I think some notice ought to have been given to them that this was coming on.

    I said that I not only gave them notice, but I supplied them with copies of the Amendments.

    I heard all that, but that was done early in the day. Probably the late Lord Advocate and the late Solicitor-General, are dining, and do not in the least know what is going on at the present moment. Considering that the Amendments are not on the Paper, it would have been courteous to find out if they were in the House, and acquaint them with what is going on. It is all very well to say that this came on unexpectedly, but that is the fault of the Government. They have put off everything until we do not know where we are.

    The late Lord Advocate spoke to me, said he was leaving, and asked when I thought these Amendments would be reached. I told him I thought it would be about a quarter to nine. It is now twenty minutes past that hour.

    I understood the late Lord Advocate expected to come back and intended to speak.

    We are dealing purely with a matter of definition. It is simply a definition of a term to make it apply to Scotland in a clear way. The hon. Baronet need not be under any fear whatever that the Lord Advocate for Scotland and the Scottish Members who are in the House are not fully cognisant of what is going on, and for the necessity of this particular Amendment. There is no need whatever to discuss it at any length.

    We had the same difficulty upstairs in Committee. We had to send for the Scottish Law Officers, and then, ultimately, when we got them we had these long and complicated Amendments suggested, with arguments on Scottish law which I think would embarrass any person. So long as we are interested, however remotely, in the good government of Scotland, and so long as we have jurisdiction over that portion of the United Kingdom, we ought all of us to try and make ourselves acquainted with the laws proposed to be enacted, particularly when associated with procedure which has always seemed to me to be more than ordinarily complicated and difficult. I dare say that the Lord Advocate lives from hand to mouth, as he told us, in the sense that he never anticipated that this was coming on to-day, but still I do not think that he ought to run so close to the wind. He ought, at any rate, to have put down his Amendments when the Home Office put down their starred Amendments on Friday, so that we might have been able to study for the good of ourselves and our educational advantage such intricacy of the Scottish law as the Amendment discloses.

    I think it only fair to say that we on this side, at least the Scottish lawyers, were unexpectedly called on to discuss this Bill, but the right hon. Gentleman did his very best to put us in possession of what his views were by giving us quite early in the afternoon a copy of the Amendments which he proposed, and, so far as we are concerned, we have no complaint to make at all. The Amendment which is under discussion seems to be one which can be accepted without any question.

    Question, "That those words be there inserted in the Bill." put, and agreed to.

    I beg to move, in Subsection (3), to leave out the words "or order payment thereof by instalments."

    The procedure in England is quite different from that in Scotland. There is in England, as I understand it power to order payment by instalments, but there is no such power in the Scottish Courts. The Clause as drafted allows a further extension of time or payment by instalments. The proposal in the Amendment is to delete that last alterative. It does seem anomalous in Scotland where there is no power to order payment originally by instalments, that you should be able to order payment by instalments after time has been given.

    Question. "That the words proposed to be left out stand part of the Question," put, and negatived.

    Further Amendment made: In Sub-section (5), leave out the word "the," and insert instead thereof the word "this."

    I beg to move, at the end of Sub-section (8) to insert the following new Sub-section:—

    "(9) Section thirteen of this Act shall apply with the substitution of the expression 'an extract of the finding and sentence' for the expression 'the order.'"
    This Amendment is required simply to bring the procedure in line with the procedure under the Summary Jurisdiction (Scotland) Act, 1908.

    Question, "That these words be there inserted in the Bill," put, and agreed to.

    I beg to move, in Subsection (9), to leave out the words "twenty-four," and insert instead thereof the words "twenty-five."

    A new Clause, No. 23, was inserted in Committee, and that altered the numbering of the subsequent Clauses. Clause 23 is not applicable to Scotland. It deals with the matter of bail which in Scotland is regulated by another Act applicable to that country alone.

    Amendment agreed to.

    I beg to move, in Subsection (9), to leave out the words "and Sections 27 to 31 both inclusive," and to insert instead thereof the words "Subsections (1), (2), and (4) of Section 28, Sections 29 to 40, both inclusive, and Subsection (2) of Section 41."

    This Amendment is necessary, in the first place, to apply to Scotland, Clause 28, Sub-section (3). I think those who are familiar with our procedure will agree that that is desirable. It is further necessary, in consequence of the insertion in Committee of certain new Clauses, namely, Clauses 29, 31, 32, 35 to 39, and 41. It is proposed that none of these Clauses should apply to Scotland. They are obviously inappropriate, whereas Section 41, Sub-section (2) is quite appropriate to our Scottish procedure. These are the reasons for which the Amendment is moved.

    This is a very serious Amendment to make without notice. It alters the law of evidence in particular cases, and as one who opposed for twenty years the so-called right of a prisoner to give evidence in his own behalf, and who secured from the right hon. Gentleman the Member for the City of London (Mr. Balfour) a promise that that particular provision should never be applied to Ireland, I wish to draw attention to the serious steps it is now proposed to take, especially in view of the fact that, in a most recent case in England, in which an accused person gave evidence, the learned judge (Mr. Justice Avory) commented with anything but goodwill upon this alleged right. It is very serious without notice to practically force persons in criminal cases to go into the box. Is it desirable to extend to Scotland that important provision in the English judicature, which enables a prisoner to be examined and cross-examined and bullied and brow-beaten, as sometimes occurs. I think the Scottish Members can hardly realise what a great change is being made in the criminal procedure of their country. It is being effected without notice. No doubt the Lord Advocate had good reason for not having been able to put his Amendments on the Paper, but then those which were of a technical kind were apparently non-contentious. This, however, does not partake of that character. It is a very serious alteration in the law, which ought not to be pressed without the universal assent of Scottish Members.

    I, too, should like to enter my protest against the way in which this has been sprung upon the House. I understood that this was more or less an agreed Bill which had been gone over in Committee. There is a very great deal in the Bill which I do not like. But, with the exception of a certain provision in Clause 10, I have kept silent whilst it has been under Debate. Now we come to a provision which makes a great difference in the way of giving evidence in Scotland. The words are not on the Paper. We have heard a lot of Sections included or deleted, but no one could tell us why, and my right hon. Friend the Lord Advocate seems to think that he has only to speak to the two distinguished lawyers on the front Opposition Bench, and for the rest the House need not bother about the matter. No one knows what Sections come in or go out, and very few people appear to care. This is the way in which we are making our criminal law. I have always understood from my friends in the legal profession that they felt far more sensitive as lawyers in dealing with criminal cases than with civil actions, and I understand it is the custom of the Crown to be scrupulously fair to opponents in such cases, and even to supply them with information. Lawyers, in fact, are greatly concerned to see that justice is done in criminal matters, and now we are manufacturing new criminal legislation. I wash my hands of the matter. I will take no responsibility for it. There is one other matter as to which I wish to enter a protest. Scottish lawyers continually take part in Debates on our Bills. Their votes sometimes turn the scale, and then we suddenly find when we come to a particular proviso that certain things are not to apply to Scotland. That I presume has been the price which the English lawyers have paid to secure the support of Scottish Members. It has been done repeatedly. A distinguished law officer of the Crown, now on the Bench, was rebuked by me for doing this. He could make no reply whatever, clever as he was, because I caught him in the act. I should like hon. and learned Gentlemen opposite to take some share of this responsibility. This is evidently not Government legislation. It has been arranged in some tea-room or Scottish Committee room. The Lord Advocate and one or two distinguished lawyers have agreed upon Clause after Clause, and Section after Section, but this House knows nothing whatever about it, and no one takes the trouble to explain what is being done.

    I think the indignation of the hon. Member for Pontefract (Mr. Booth) is a little bit wasted. There is no ground for his suspicion that there has been a Machiavellian compact between the Government and the Front Bench or any of those persons whom the hon. Member has spoken of as "Scottish lawyers." After all, the hon. Member and those who think with him, if there are any, should recollect that what the Lord Advocate proposes to do is to make, in this small particular, the law of Scotland and the law of England the same.

    It was never the law of England before. This Bill changes the law of England.

    I suppose even the hon. and learned Member has been a party to Sub-section (3) of Clause 28 which was passed this afternoon?

    At any rate, Sub-section (3) of Clause 28 now expresses the law of England. So far as the law of Scotland is concerned, it must be remembered that already the approximation in this matter was exceedingly close. There was an Act passed in 1898 which did two things—first, it allowed the wife or the husband of a person charged to be called as a witness. No doubt that meant that they might be called as a witness for the defence. The hon. Member must also remember this, that under Section 4 of that Act either the wife or the husband of a person charged with an offence under any enactment mentioned in the Schedule—I agree that the Schedule is not exhaustive, but it is very long—might be called as a witness for either the prosecution or the defence, and without the consent of the person charged. All that is proposed by the right hon. Gentleman's Amendment is to make in this particular, namely, with regard to the crime of bigamy—which I agree was not covered by the Schedule to the Act of 1898—the law the same as it was made in 1898 with regard to a long series of crimes and offences that were covered by the Schedule to that Act. I do not think that in making in this respect the law of Scotland the same as the law of England any harm is done to the interests either of Scotsmen or Scotswomen, or even to the interests which may be dear to the hon. Member for Pontefract (Mr. Booth). I therefore venture to support the Amendment.

    While I do not wish to oppose the Amendment proposed by the Lord Advocate, I think some further explanation ought to be given of his proposal and the reason why it is made in this specific manner this evening. This Bill has been before the Standing Committee, and the Clause we are now discussing has come from that Committee in the form in which it now appears in the Bill. Doubtless there were strong reasons why the Lord Advocate's Department decided that this special Sub-section should not be applied to Scotland, and apparently, up to the present, the House of Commons has regarded those reasons as adequate. Now this evening, without any reason stated, unless it be at a conference which has been held behind the Speaker's Chair between my right hon. Friend and the hon. and learned Gentleman opposite, this provision is to be changed. That is treating the House and the Scottish Members with less respect than is their due. I do not see any special reason why this Sub-section should not apply to Scotland. I do not hold the same strong views on this question as are held by the hon. and learned Gentleman the Member for North-East Cork (Mr. T. M. Healy). Doubtless, if I did. I should be as resolute in opposing any extension of this Clause to Scotland as he has been in opposing any application of the Clause to Ireland. Believing as I do that, on the whole, the right to give evidence on his own behalf by an accused person has been to the advantage of the accused person, I am not inclined to oppose the provision now proposed by the Lord Advocate. At the same time, I think it is unfortunate that the proposal has been brought forward at this stage, and that no reason was put forward by the Lord Advocate for making it.

    The speech to which we have just listened shows that Scottish Members have failed to appreciate the meaning of the Clause. The hon. Member spoke of the Clause as if it made the prisoner a competent witness. That is not so. As I understand the law, he is at present in Scotland and in England a competent witness, but this makes him a compellable witness, whether he likes it or not. I know no precedent of that kind dealing with any other offence in the calendar except the offence of bigamy. I do not know the reason why that course was adopted in that case. It was a very strong measure. Hon. Members do no appreciate what they are doing in making this very revolutionary change. The speech just delivered shows that Scottish Members are wholly ignorant of the effect of the Amendment moved.

    Question, "That the words proposed to be left out stand part of the Bill," put, and negatived.

    Words Sub-sections (1), (2), and (4) of Section twenty-eight. Sections twenty-nine to forty, both inclusive, and Sub-section (2) of Section forty-one inserted in the Bill.