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Law Reform (Miscellaneous Provisions) Bill

Volume 526: debated on Friday 9 April 1954

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As amended (in the Standing Committee), considered.

Clause 3—(Written Notice Of Summary Charges Made Otherwise Than By Summons)

3.12 p.m.

I beg to move, in page 2, line 1, to leave out Clause 3.

Perhaps it would be convenient if I explained to the House the reason why I wish to omit this Clause and what has transpired since the Committee stage. Some hon. Members may recall that in Committee I wished to omit this Clause. It is not that I felt that the purposes behind the Clause were no longer necessary, but rather that I was convinced that as the Clause was drafted it would not meet the purposes which I had in mind.

I strongly believe that the defence can often be seriously prejudiced if a person who is arrested otherwise than by a warrant or who is charged with an offence otherwise than by a summons does not know until the last minute the precise nature of the charge against him. That is why I included the Clause in the Bill. As the result of investigation, however, I was convinced that the Clause as I had drafted it would not secure the result which I had in mind.

First of all, it was a good deal too rigid, and a person obviously guilty might have escaped on some mere technical imperfection in the notice given to such a person in the way in which the Clause suggested. That was not my intention. Secondly, in any event the Clause contained no sanctions. I put forward these arguments in Committee and gave an indication of the steps which the Home Secretary and the Home Office were prepared to take, but, much to my surprise and somewhat to my discomfort, hon. Members on both sides of the Committee refused to allow me to withdraw the Clause.

3.15 p.m.

As a result, further conversations have taken place between myself and the Home Office. I have now had a chance of seeing the draft circular which the Joint Under-Secretary of State undertook at the Committee stage to circulate, and I am well satisfied that it will meet the purpose I have in mind. I understand that this matter has been discussed with the chief constables, that they have agreed to co-operate fully in giving effect to the objects of my Clause. A circular will be issued containing a number of points of guidance. I want to comment on it, although I understand that it is not customary for a Home Office circular to be read in the House. I will, however, give an outline to the House of the main points.

One purpose of the circular is to get a uniform procedure adopted throughout the country when a person is charged. The essential point is that as soon as a charge has been accepted by the appropriate police officer, the accused person shall be given a written notice. The form of this notice is important and goes a great deal further than the undertaking given originally by the Joint Under-Secretary of State. The written notice will contain a copy of the actual entry in the charge sheet or book, and give particulars of the offence with which the accused person is charged. The particulars of the charge are, as far as possible, to be stated in simple language so that the accused may understand it but, at the same time, the offence is to be stated precisely; that is to say, if there is a Section of an Act involved it must be quoted as well as the nature of the offence explained.

In Committee hon. Members were anxious that there should be included in the written notice some caution, following the general procedure, when an oral statement of the charge is made. The circular suggests that the written notice shall include a statement on the lines of the caution given orally to the accused person in accordance with the general practice of the judge's rule, that is to say, when a charge is preferred. The form of the notice, therefore, will begin with a clear statement to the effect that the accused person is not obliged to say anything unless he wishes to do so, and that anything he does say will be taken down in writing and may be given in evidence.

Then there was another point which concerned a number of hon. Members. That was when the police, as so often happens, wish to modify a charge or make an additional charge. The circular will include the fact that before an accused person is tried, and the police decide to make an additional charge or an altered charge, they will be required to give the accused person a written notice of the new charge or the altered charge.

This seems to meet all the points raised in Committee in a satisfactory way. The police have been asked to inform the Home Office if they experience any difficulties in practice in applying these suggestions, and the Home Office have given an undertaking that, if there are difficulties, they will consider issuing a revised notice. In all the circumstances I feel that this is a satisfactory undertaking. As this is a Private Member's Bill, I could not bring any pressure upon the Government. I think therefore they have been generous in giving me this undertaking in the proposals they have made to circulate the points I have outlined to all chief constables.

My Clause certainly had no sanction, and it seems to me that in one sense by dealing with this matter by administrative circular there is more likelihood that police constables will carry out the suggestion. They will not want directly to incur the displeasure of the Home Office by not carrying out the terms of the circular. Of course, the Home Office have their own methods of ensuring that their wishes are obeyed, and logically they could, I suppose, even withhold a grant to a police authority which was not carrying out the requirements of that circular. I think this sanction is more effective in practice than anything that I could incorporate in the Bill.

There is the additional point that once this provision is generally known, those appearing for the defence would be placed in the position of being able to ask the police why they had not acted on this circular, why they have disregarded it. This would be a great safeguard to an accused person. I am satisfied with the undertaking that I have been given, and it is for that reason that I am moving to leave out this Clause.

As the hon. Member for Hayes and Harlington (Mr. Skeffington) rightly said, in moving the withdrawal of this Clause he has met with expressions of opinion to the contrary in many quarters. I am bound to say that I am reluctant to see a Clause of this value go at this late stage. When one remembers how difficult it is for a Private Member to get a Private Member's Bill past all the obstacles which face it, it seems a great pity that a valuable Clause of this kind should be lost at the last minute.

I should like, at the outset, to congratulate the hon. Gentleman on having got his Clause as far as this. But, having got it so far, I should have thought that he would have been well advised to overcome the remaining difficulties. I have the feeling that something in the nature of a deal has been done here, and that the hon. Gentleman, after his consultations with the Home Office, is giving away this Clause in order that he may keep Clauses 1 and 2. I feel that Clause 3 is the most valuable in the Bill, because there is nothing more important in a criminal charge than that the accused person should have complete particularity as to what he has to face. This Clause has always struck me, since it first appeared in print, as a very valuable contribution in that direction.

There are many reasons why it is of vital importance that an accused person should know exactly what he is charged with; so that he can give proper attention to the preparation of his defence, so that there is no risk whatever of a conviction being recorded upon wrong grounds, and so that an accused person should have every safeguard that the law is properly and duly administered.

One can think, for instance, of a recent incident in which a matter of this kind might have been of considerable importance. There was a recent trial which attracted considerable notoriety, on which a Question has been asked in this House with regard to entry being made upon the premises of the accused person without that person having any idea that such an entry was being made, and without any search warrant being in existence. I should have thought that search, in circumstances of that kind, should be strictly limited to evidence which might be material to the offence charged. That is the relevance of this case to the matter that I am now considering. Suppose that in that recent case this Clause had been in existence and assume that search must be limited only in respect of anything material to the charge. That would have been a very important factor in this incident, which has been raised in the House.

Many people are rather unhappy about the reply which was given by the Home Secretary on that occasion. The events appear to be beyond dispute, that a police officer went to one of the residences of an arrested person, who had two residences, and, while the accused person was being arrested at one residence, the police went to the other.

I think it is not putting it too high to say that they bluffed their way in because there was no warrant and they knew perfectly well that the man was not there because they were arresting him somewhere else. It is not putting it too high to say that they bluffed themselves in and searched the premises. As he was not present, he could exercise no control over the search and they could have produced evidence of totally unrelated offences.

If such a Clause as this had been in existence, no police officer would be justified in searching for evidence which might incriminate the accused person other than that in relation to the offence charged. That is why it is important that there should be particularity of the charge and that no search should take place other than that set out in the form, which the hon. Member had in mind should be given to the accused person.

The hon. Member said that there was no sanction in his Clause. He now says he is perfectly content to leave this matter to administrative action. He knows as well as the rest of us that now he has less sanction than ever, because there is no sanction whatever in respect of administrative action. But there was a quite powerful sanction in the Clause which he originally intended to include in the Bill. The sanction was that no prosecuting authority would dare to omit to deliver particulars of the charge which the hon. Member said should be delivered, because they would know that once it became a statutory requirement for them to do so it would be fatal to their case to omit to do so.

The hon. Member knows, for instance, of provisions where something of this nature is required, such as the Section of the Road Traffic Act—I think it is the careless driving Section, where notice has to be given in 14 days. There is the strongest possible sanction there for seeing that the Section is complied with. Any police officer who takes a prosecution under that Section knows that if he arrives at court and is taken up on that point and has not complied with the condition precedent, the prosecution will fail. In the eyes of a police officer, one could not have a stronger sanction than that.

I think the hon. Member has been wrong in being persuaded, as I believe he has been persuaded, that there was no sanction. It is true that there was no legal sanction in that no action could be taken against the police officer who failed to comply with the Section, but there could not be a stronger sanction than insisting on complying with the condition, which operated perfectly well in the instance I have given, under the Road Traffic Act. There are many other statutes in which there are similar requirements of a notice being given and of a notice being a condition precedent. As it stood, this Clause did not fall below similar Sections containing a like requirement of giving notice.

3.30 p.m.

What the hon. Gentleman has accepted instead is this process of administrative action by which a circular is sent out to police authorities throughout the country with which they may or may not comply. It does not matter in the least whether they do or do not. Certainly, there is no sanction now, and all any police officer will have done, if he has failed to comply with the administrative order, the circular or whatever it is that has been sent out, is to have offended against a Home Office requirement which will not affect the validity of the proceedings.

The hon. Gentleman appeared to have a touching faith in the power of the Home Office to exercise authority in these matters. I should have thought that with his experience in this House and in the law, he would have known that that is far from being the case. I will give him one single instance. There have been several occasions on which some of us have tried to put down Questions in this House to the Home Department on subjects affecting police authorities in different parts of the country, only to find it almost impossible to do so because the Home Secretary is only responsible for the Metropolitan police, and that he exercises no power at all over county and borough police forces.

I know that when I have wanted to raise matters affecting the police, I have found very considerable difficulty in doing so. The Table immediately raises the point, as it properly should, whether the Question refers to a county or borough police force outside the Metropolitan area, or whether it is a matter for which the Home Secretary is responsible. Incidentally, I might say for the instruction of hon. Members that there is an ingenious way by which one can sometimes get round that difficulty. I have been able to do it myself on at least one occasion, and if any hon Member wants some advice on how to do it, I may be able to help him at a suitable time.

I do not think it would be relevant to the Amendment under discussion, to which I must return.

The position is that if the Amendment is carried this Clause will disappear from the Bill altogether, and the Bill will be a considerably worse Bill than it was when it was originally introduced. While I appreciate that the other two Clauses serve a very useful purpose and command general support, I think that the most valuable contribution which this Bill had to offer was under Clause 3.

As I say, I cannot help feeling that there has been some horse trading going on here, and that the hon. Gentleman has bought Clauses 1 and 2 at the price of Clause 3. I feel sure that those of us who do not share his view that Clause 3 ought to be abandoned are well behind him in his original intention. I hope that he will be fortified by the fact that there is a considerable body of opinion in this House which thinks that he ought to stand up to the Home Office opposition to this Clause and do his best to try and get it through.

For the reasons I have given, I hope that the hon. Gentleman will think again before letting this Clause go, and will feel assured that if he stands firm upon it there are very many of us ready to give him our support.

I fully appreciate the arguments put forward by the hon. and learned Member for Hove (Mr. Marlowe). It was largely those arguments and considerations which led us, when this Bill was in Standing Committee, to resist the proposal now being made. I think that was the correct course, and that it has borne some fruit. Had we lost this Clause in Standing Committee, we should not have had the further statement by my hon. Friend this afternoon. I hope the Joint Under-Secretary of State will have an opportunity to amplify that statement before we leave the Clause.

In spite of the arguments which have been advanced, I think we should accept the suggestion made by my hon. Friend. Having been a humble P.P.S. at the Home Office in my day, I am not so distrustful of the Home Office, and I feel that the Joint Under-Secretary of State has conscientiously endeavoured to meet the points raised in Committee. I congratulate the hon. Gentleman on the action he has taken. I think he has met the various points which were raised by hon. Members on both sides of the Committee upstairs where this rather unusual combination of my hon. Friend and the Joint Undersecretary of State had the effect of leaving them in isolation, because the whole of the Committee upstairs felt that we should have another opportunity to look at this matter.

I am satisfied that the hon. Gentleman has looked at it again and gone as far as he can. Regarding the point made by the hon. and learned Member for Hove about taking steps by administrative and not by legislative action, I think that in this case it would be better to try to deal with this matter first by administrative action and see how it goes. I occasionally ask questions about police recruitment, and so on, and we must recognise that police forces are faced with difficulties at the present time. It might be better to deal with this by administrative action and then review the matter subsequently to see if legislative action is necessary.

I am satisfied that chief constables will pay regard to the circular from the Home Office, and that the Home Office has gone as far as possible in the matter. If the House remains vigilant—and after all it will be widely known following this debate that the Home Office is taking this step—

That is the point I was making. The hon. Gentleman says that the House should remain vigilant. The difficulty is that however vigilant hon. Members may be, there is difficulty in asking a Question in this House regarding any instance relating to a chief constable or a police authority which ignores the administrative action and which is outside the Metropolitan area. In such a case I doubt whether it could be raised in this House however vigilant hon. Members may be.

I think I can claim to share the ingenuity of the hon. and learned Member for Hove in putting down Questions and raising matters in this House. I think that if a circular goes out from the Home Office, and following our debate this afternoon, in one way or another we shall be able to raise the matter.

I hope hon. Members will be vigilant about this. I am sure that the hon. and learned Gentleman has had experience of the inconvenience and probably the miscarriages of justice which have arisen from the lack of adequate notice. If the Joint Under-Secretary of State can give an assurance that we shall be able to raise such matters I would ask the House—having opposed it before in Committee—now to accept the proposal which is made.

I wish to join in the congratulations to the hon. Member for Hayes and Harlington (Mr. Skeffington) on seizing the opportunity provided by his success in the Ballot to bring forward this important and interesting Bill. I share the apprehensions of my hon. and learned Friend the Member for Hove (Mr. Marlowe) about this Amendment, which would result in Clause 3 being taken out of the Bill. Yesterday afternoon I had an opportunity to speak in the debate on the Budget statement and I mentioned—

I beg the hon. Gentleman's pardon, I did not mean to be discourteous. I hope he will shout out again if he cannot hear me.

In my remarks yesterday I made reference to the fact that before becoming a barrister I had spent many years in business. I repeat that now because I do not pose as an expert in law. I have practised for only five years, but from my limited experience I should say that I should like to see this Clause stand part of the Bill. Most barristers when they start, as you, Mr. Deputy-Speaker, will know from your own experience, do work in the police courts.

I should like it to be made clear that nothing that I say is in any way to be taken as any reflection on the excellent work of the police. They have a difficult job and one hears many criticisms of them, but my experience is that they do that difficult job very well indeed. We are most fortunate in that we have such a fine body of men and women who do such excellent work.

Having said that, I would say that we know the tremendous pressure under which the police courts work. We realise the difficulties. Nevertheless, it is a cardinal principle of our law—indeed, it is one of the things we have always stood for—that the critizen has rights against the executive or against the police.

When I first saw the Bill I was not very keen on Clause 2. There is a lot to be said against that Clause. The Clause that appealed to me was Clause 3. It is only right and proper that there should be an absolute guarantee that when a person is charged, even with a summary offence, he should be assured of getting full knowledge in advance of what he is charged with. I do not like the idea of the Home Office sending out an administrative instruction. I do not doubt that the police will do their best to act on such an instruction but, frankly, I have a deep-rooted objection to giving too much power to the executive.

There is a real danger. One might have been less inclined to criticise the suggestion that the Clause should be deleted if one had been able to see a copy of the circular which it is understood that my right hon. and learned Friend the Home Secretary will send out. Until one has had an opportunity to study that, one's feelings cannot be moved by anything said in support of the Amendment.

I feel very strongly that the power of the police or the executive should not be enlarged. We should know clearly what the position is. Every citizen has that right. I have always regarded it as one of our birthrights that our people should know quite clearly, without equivocation or secrecy, what they are being charged with under the law of the land—not as a result of some administrative circular or anything like that.

With great respect, I suggest to the promoter of the Bill that he should be good enough to reconsider the matter. On the other hand, I have not heard what my hon. Friend the Joint Under-Secretary of State has to say. I shall be very interested to hear why the Home Office has suggested that the Clause should be omitted and that the substitution of a circular advocating certain administrative action is better than having it in black and white on the Statute Book. Consequently, I shall reserve my judgment on the question.

3.45 p.m.

I endorse what has been said by the hon. Member for Hayes and Harlington (Mr. Skeffington). What he said was correct. I am very glad indeed that he has seen fit to take the steps which he has taken in this matter. I gladly give a definite undertaking, on behalf of my right hon. and learned Friend, that a circular on the lines which he described will be sent out and that it will cover all the matters which he mentioned.

The hon. Member for Sunderland, North (Mr. Willey) asked whether it would be possible to raise in the house questions relating to the circular. I should be out of order if I attempted to answer that question, but perhaps I might, within the bounds of order, say that I have not the slightest doubt that hon. Members who thought that the circular had been disregarded would have no great difficulty in finding means of raising the matter in the House.

I can certainly say that, in the event of there being any question of the circular being disregarded, I would make it my business, if hon. Members approached me direct, to look into the matter and take whatever action lay within my power, and I am sure that the same is true of my right hon. and learned Friend.

My hon. and learned Friend the Member for Hove (Mr. Marlowe) said that the Clause was of very great value. I do not disagree with that view at all. The intention of the Clause obviously has the endorsement of hon. Members in all parts of the House. The question is how to give effect to the intention in the best possible way. I think I am not exaggerating when I say that all hon. Members in the Committee who pressed for the retention of the Clause felt that as it stood it would not give effect to the Committee's intention and that, if the matter were to be dealt with by statute, it would be necessary to have something different, longer and more complicated.

It is not true to say that there has been anything in the nature of a deal here. The truth is that all hon. Members in the Committee felt that it was desirable to give the matter further consideration. It was the hon. Member for Sunderland, North who suggested that it would be better to leave the Clause in the Bill so that it would be in order to raise the subject today. If the Clause had been deleted, there would have been nothing left in the Bill to enable the matter to be raised today. Consequently, the Clause has been valuable. Its value has now gone because it is superseded by another arrangement as a result of the discussions which have taken place, and I advise the Committee to accept the Amendment.

Before we part with this, I ought to say that there is one aspect of dealing with the matter in this way which is of great importance. If we attempted to lay down statutory rules, the rules would perforce be of a very definite character and not easily changed. If we deal with the matter administratively as is proposed, by means of a circular to chief constables, it will be possible to make changes as and when they are found necessary.

This is something of a new departure and an important one, and it does seem that it will be much better to have the flexible procedure which we shall have by this means. If, in due course, experience showed that there were certain things that can be definitely laid down as desirable, if it became clear that the matter can be dealt with by statute, I have no doubt that the procedure could be incorporated in a Bill in due course. It may be that, in a year or two, we shall find ourselves here on a Friday afternoon approving a Bill giving effect to the proposal of the hon. Member for Hayes and Harlington. In these circumstances, I hope the House will agree with this Amendment, and with the further Amendments proposed by the hon. Member.

Amendment agreed to.

Clause 4—(Short Title And Extent)

I beg to move, in page 2, line 8, to leave out "(Miscellaneous Provisions)," and to insert "(Enforcement of Contracts)."

There are a great many law reform Acts, and it was thought that, now that this Bill has been shorn of some other matters and is now a good deal smaller than originally drafted—since other Clauses for other reasons have been omitted—this alteration in the short Title would be of assistance to practitioners. I hope that the House will accept the Amendment.

Amendment agreed to.


I beg to move, in line 1, after "1677." to insert "and,".

This Amendment is needed to make the Title conform to the Clauses of the Bill as they now stand.

Amendment agreed to.

Further Amendment made: Leave out lines 3 to 5.

3.52 p.m.

I beg to move, "That the Bill be now read the Third time."

May I say at the outset that I am very grateful to all those who have helped in the various stages in the preparation of this Bill, both in drafting outside and also the assistance which I have had inside the House. Particularly am I grateful to those hon. Members who have taken part in the various stages of the Bill, particularly the Committee stage, and for all the suggestions they have made.

I hope one can say that even the remaining two Clauses of the Bill do constitute a useful piece of law reform, and I cannot conceal from the House the satisfaction which I feel in altering the Statute of Frauds nearly 300 years after it was passed. There is some satisfaction in that, which I hope the House will grant me. Seriously, I think that the provisions of Clauses 1 and 2 bring the law more into accord with the times. The proposals have been made by very weighty and authoritative law reform committees, whose views I have respectfully followed. I gather that one of the ancient universities is not yet printing its law syllabus until it ascertains the fate of this Measure. Future students of law will, I hope, have their labours lightened by the passing of this Measure. I hope that, in its final form, this Bill will afford some assistance to those who have not been able to succeed under the Statute of Frauds, 1677, and the Sale of Goods Act. 1893, in those contracts which the law now requires to be evidenced in writing.

3.55 p.m.

I can only deal now with what is left in the Bill, after the best part was taken out in the Amendment which was before the House on the Report stage. This is not such a good Bill as it was when originally drafted and when it went to Committee.

It will now remove the requirement for written evidence in many contracts. I am sorry to see the requirement in regard to written evidence go. I remember that when I was reading for the law I always counted on this as a safe one for the examination. It had great merits in that it was easily memorable and was absolutely certain to come up in the examination paper. Perhaps the reason why I was ever able to qualify was that this was the only thing I really ever knew. I fear that students will, in the future, be faced with considerable difficulty in having to learn something else.

This alteration of the law has been contemplated for a very long time, but opinion is not all one way in the matter. There are many people who believe that the requirement of written evidence has been of very considerable value in the actions to which it relates, and that it might have been desirable to retain it. I recognise that there is a body of opinion to the contrary, and that is the side which the hon. Member for Hayes and Harlington (Mr. Skeffington) has espoused.

One has also to consider whether this alteration will not lead to increased litigation. Many actions have been kept out of the courts by the knowledge that it was hopeless to attempt to pursue them because the requirement was not there. I have no doubt that many litigants have gone to their solicitors and said, "I want to bring this matter into court," but have been advised by the solicitors that they did not stand a chance because the necessary written document was not available.

For further litigation now to be brought about would be a very unhappy event, the courts being already over crowded. Many cases are waiting to come on, and the prospective litigants are anxious, and it would be a great pity if the courts were cluttered up with further cases. No doubt the hon. Gentleman has considered that possibility. Although we recently agreed to pay the judges more money, I think they would be glad to be relieved of many actions which might result from the passage of the Bill, and—

rose in his place and claimed to move, "That the Question be now put."

Question, "That the Question be now put," put, and agreed to.

Question, "That the Bill be now read the Third time," put accordingly, and agreed to.

Bill accordingly read the Third time and passed.