Criminal Justice Bill
As amended, (in the Standing Committee), considered.
On a point of order, Mr. Speaker. You were good enough to have put up in the No lobby your provisional selection of amendments to the Bill. Numerous and generous as your selection has been, may I appeal to you to look favourably upon new clause 20? Much has happened since the Bill received its Second Reading, and even since it was in Committee. Those events have generated a groundswell of opinion throughout the country that the Court of Appeal should have power, in cases of gross under-sentencing, to review the sentences upwards on the application of the Crown. You would be doing the House and the country a great service, Mr. Speaker, if you allowed new clause 20— in the name of my hon. Friend the Member for Lancashire, West (Mr. Hind)— to be debated and divided upon, although before those recent events it was debated in Committee.
On a point of order, Mr. Speaker. If one issue above all others has attracted the attention of lawyers—judges, solicitors, barristers and all those responsible for the administration of the courts and the law—it is clause 29. As it stands, the clause provides for a quite absurd reference to the Court of Appeal to consider a matter about which it has no power to do anything. The feeling among lawyers has been so strong that it would simply not be understood if, when the Bill was on Report, the House was given no opportunity to debate the issue.The matter arises not only in relation to new clause 20, to which my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) referred, but, more essentially, in relation to amendment No. 60. That amendment calls for the deletion of clause 29, and is in the name of my hon. Friend the Member for Lancashire, West (Mr. Hind) and myself. Amendment No. 61, on which my hon. Friend the Member for Leicester, East (Mr. Bruinvels) can speak for himself, falls into the same blatant error as new clause 20. Error or no error, it is a matter of such substantial importance to those who will have to administer the law that—in my respectful submission—it is unthinkable that the House should not be given an opportunity to consider the good sense of clause 29 and what, if anything, should be done about it. I support the application made by my hon. Friend the Member for Tiverton.
On a point of order, Mr. Speaker. Let me underline what my hon. and learned Friend the Member for Burton (Mr. Lawrence) has said, although with a different interpretation. Amendment No. 61 would give the Court of Appeal the opportunity to review sentences that were considered excessively lenient. Clause 29 has caused great concern outside the House, because there appears to have been some misunderstanding. It seems to have been thought that, when a case was reviewed, that might change the sentence given. It will not do that; it will merely establish a precedent.The amendments tabled by my hon. Friend the Member for Lancashire, West (Mr. Hind) and me would give the opportunity to review the actual sentence, and overturn it if it were considered excessively lenient. There is concern outside the House, and I urge you, Mr. Speaker, to give further consideration to the matter and select the amendment.
On a point of order, Mr. Speaker. My hon. and learned Friend the Member for Burton (Mr. Lawrence) is right: there is concern among lawyers. However, there are considerably more non-lawyers than lawyers in the country, and they too are extremely concerned. They feel strongly that we should have a chance to consider whether sentences should be increased. I respectfully ask you, Mr. Speaker, to allow us to debate the matter today.
When I made my selection this morning, I considered this matter very carefully. For the benefit of those outside Parliament, it should be said that this matter was debated exhaustively in Standing Committee. In view of the representations that have been made to me, I shall of course consider the points that have been made and will let the House know my decision.
On a point of order, Mr. Speaker. I am sorry to trespass further on your time, but if clause 29 is important, barely of less importance is clause 30. It increases the sentence for firearm offences from the present maximum of 14 years to life imprisonment. It formed the subject of a number of speeches on Second Reading. If life imprisonment is to be the sentence for the mere possession of firearms, there will be no difference between the sentence for possessing the firearm and that for killing somebody. The police made strong representations that there would be an incentive to kill if somebody could face life imprisonment merely for possessing a firearm and not using it.
I wonder whether the hon. and learned Gentleman will help me by drawing my attention to the amendment that I imagine he is saying has not been selected?
I tabled amendment No. 157 to leave out clause 30. I readily admit that it is a starred amendment and that it was easily within your sphere of responsibility not to call it. Nevertheless, this is an important matter, not just to me or to lawyers, but to the police, who have to rely upon the statute. The matter ought to be ventilated in this House before the Bill goes to another place. I urge you, Sir, to consider selecting this amendment when it is no longer starred, so that the House will have an opportunity to consider whether it would do more harm than good to raise the sentence for a substantially less serious offence than murder.
The hon. and learned Gentleman is correct when he says that this is a starred amendment. I remind him that the Bill left the Standing Committee on 17 March and that he has therefore had a number of weeks in which to put down this amendment. I shall certainly consider what he has said, and if the matter is not reached today, it may be unstarred tomorrow.
On a point of order, Mr. Speaker. I refer to new clause 23, which stands in my name and those of my hon. Friends. It has not been selected for debate and it is to he found on page 495. New clause 23 deals with the criminal liability of persons acting under duress, necessity or coercion. The reason for putting down new clause 23 is that about a fortnight ago there was a very important decision in the House of Lords in a murder case, the case of Howe. That case has changed views as to the efficacy of the defence of duress in certain cases. The matter could not have been considered properly in Committee, because at that stage the Howe case had not been decided.Recommendations were made by the Law Commission in 1977 about the defence of duress and other defences, which have been incorporated in the new clause. There is a good deal of uncertainty now. I respectfully ask you to consider allowing a debate on this issue, as this appears to be the only clear opportunity in the near future for the matter to be considered by the House and the Government.
I have looked carefully at that new clause, but it is outside the scope of the Bill. Therefore, I cannot give the hon. and learned Gentleman any guarantee that I shall allow it to be debated today.
New Clause 16
Power To Petition For Winding Up Etc Oninformation Obtained Under Section 2
The words "or section 2 of the Criminal Justice Act 1987" shall be inserted—
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.New clause 16 amends section 440 of the Companies Act 1985 to allow public interest petitions based on o information obtained under clause 2 of the Bill to be used for the winding up of a company. A little amplification is necessary. Section 440 of the Companies Act 1985, as subsequently amended by the Financial Services Act 1986, allows public interest petitions based on Companies Act and Financial Services Act information to be used for winding up a company. The new clause further amends section 440 so as to allow public interest petitions based on information obtained from the serious fraud office to be used in the same way. The serious fraud office will not itself wind up companies. That will remain a matter for my right hon. Friend the Secretary of State for Trade and Industry.
Question put and agreed to.
Clause 16 ordered to stand part of the Bill.
New Clause 25
Remands In Custody For More Than Eight Days
'.—(1) The following section shall be inserted after section 128 of the Magistrates' Courts Act 1980—
"Remands in custody for more than eight days.
128A.—(1) The Secretary of State may by order made by statutory instrument provide that this section shall have effect—
(2) A magistrates' court may remand the accused in custody for a period exceeding 8 clear days if—
but only if, after affording the parties an opportunity to make representations, it has formed a view as to the minimum period likely to elapse before the next stage in the proceedings other than a hearing relating to a further remand in custody or on bail and only for a period not exceeding—
whichever is the less.
(3) Nothing in this section affects the right of the accused to apply for bail during the period of the remand.
(4) After paragraph 9 of Schedule 1 to the Bail Act 1976 there shall be inserted—
"Cases under section 128A of Magistrates' Courts Act 1980
10. Where the court is considering excercising the power conferred by section 128A of the Magistrates' Courts Act 1980 (power to remand in custody for more than 8 clear days), it shall have regard to the total length of time which the accused would spend in custody if it were to exercise the power".
(5) A statutory instrument containing an order under this section shall not be made unless a draft of the instrument has been laid before Parliament and been approved by a resolution of each House.".'.— [Mr. Mellor.]
Brought up, and read the First time.
I beg to move, That the clause be oread a Second time.
With this, it will be convenient to discuss Government amendment No. 107.
New clause 25 deals with matters that we said in Committee we would bring forward on Report. The new clause deals with remands in custody, a matter that is of considerable significance to the criminal justice system.We shall have the opportunity to consider later the present arrangements for the granting or refusal of bail. The new clause deals with a different but important aspect: the basis on which a court should remand a defendant in custody. At present, a person may not be on remand and in custody for more than eight days. A consultative document that was issued a few months ago by the Home Office made it clear that a number of magistrates courts hearings are purely formal and that a defendant may have to be brought a very considerable distance from prison to appear in court. Prison officers are required to escort the prisoner, often to the detriment of the prison regime. Court time is taken up by remands, during which nothing of substance can be achieved, thereby causing delay to the hearing of other cases, in which substantial progress might be made. Consultations were therefore held on the proposal that courts should be permitted to remand for up to 28 days. We suggested that that would be a legitimate extension of the arrangements that were introduced under the 1982 Act, whereby defendants who are remanded in custody can agree that they do not wish to appear in court. Research shows that between a third and a half of those who are eligible to say that they do not wish to appear have chosen not to do so. A number of the organisations that dissented from this proposition said that the only consequence would be an extension of the period in custody that would be imposed on a number of remand prisoners. This decision has to be taken against the background of the remand population having grown substantially in recent years—from about 4,000 in 1979 to about 8,500 today. Therefore, the new clause represents a modest step forward. We believe that it would provide an opportunity to find out, from practical experience, which of the various contending opinions that have been advanced in response to our document is correct. The proposal is that the first remand should be for a period of eight days, but thereafter the court should be able to remand for up to 28 days in the event that it was determined that substantive progress with the case would not be possible until the expiry of a period greater than eight days. The new clause is subject to a number of safeguards. For instance, the accused will be allowed to apply for bail during the period of remand if it is suggested that circumstances have changed. No one will be kept in custody for a substantial period who has grounds to mount a bail application. There is also a modification in the new clause to the Nottingham justices case which, as the House will recall, deals with the question when a bail application may properly be made and restricts a fresh bail application to occasions when there are fresh circumstances. That allows the court to have regard to how long an individual will spend in custody when deciding whether to consider bail once again. That is provided for in subsection (4) of new clause 25, which states:
"Where the court is considering exercising the power conferred by section 128A of the Magistrates' Courts Act 1980 … it shall have regard to the total length of time which the accused would spend in custody if it were to exercise the power."
Will the Minister ensure that he is not misunderstood? Is he saying that a fresh bail application can be made when the only thing that has changed is the length of time spent by the accused in custody?
It means that the fresh application can be made if the period spent in custody is longer than was envisaged at the outset. It would mean, I would have thought, for the most part, that a fresh application could be made at each stage of an extended period of remand in custody. To that extent, it loosens the rules. Of course, the question of the proper construction will be a matter for the courts.The background against which we have taken the decisions lies in research carried out last year, which showed that, of an average of eight hearings that took place in the magistrates court prior to committal for trial in the cases sampled, five of the hearings were purely formal occasions and nothing of substance occurred. It is scarcely surprising when dealing with a number of major cases that it is not possible to progress speedily to committal. The argument that has been put forward in favour of making the change rests on the clear basis that all those who play their part within the system will get on with the job—that the prosecution will always state the earliest time when it can be ready and that the court will look critically at applications for remands and will not allow remands for extended periods to take place without good reason. It would be devastating to the system if the ability of the courts to remand for periods of up to 28 days were to become a general habit to remand for 28 days. That objection has been raised by many organisations. In tabling the new clause, the Government are well aware of those objections and accept their force, not as something that is bound to happen, but as something that is sufficiently likely to happen that we should not proceed with an across-the-board reform without taking the opportunity to see whether in practice things work out in the way that we would wish or whether the scepticism that has been expressed about the manner in which the courts would discharge the functions can be justified. I hope that the new clause is not controversial. The proposal sets a period within which an experiment will take place. This has happened before with regard to tape recording and time limits and is a well-trodden path. We should be able to designate a number of areas in due course and a number of offences which would be the subject of an experiment to allow remands of this kind to take place. We have in mind a number of different areas of the country drawn to reflect different court conditions and the offences would, of course, be those that were likely to be committed for trial. There would then be an experimental period and, as subsection (5) makes clear, we can only bring the proposal into force if there is an affirmative resolution of both Houses of Parliament. The matter will be fully considered by Parliament and if matters proceeded in a way that seemed to clear some unnecessary hearings from the court without unduly prolonging remands in custody, I feel sure the House would wish to see the proposal introduced more widely. However, if we were to find that unnecessarily long adjournments and remands in custody were being granted without good justification, we would be able to leave the position as it is at present without any damage being done to the system. I hope that the new clause will establish that we have listened to those people whom we consulted and that we have recognised that it is in the interest of justice for the courts to be freed from unnecessary hearings. It is also in the interests of justice that people should not be locked up in prison on remand for longer than absolutely necessary. The experiment gives us a chance to find out which of those contending priorities should in the end be favoured by the full-scale change that could lie at the end of the experimental period.
I do not want to delay the House for very long because we debated the matter fully in Committee. However, the Minister will be aware that we have some reservations and he already referred to one of our main reservations, the possibility that there may be an extended remand period. For that reason, we welcome the fact that the Government are introducing this provision as an experiment to see how it works.We expressed concern in Committee—and I restate our concern now—that some people might not be well enough represented or, in some cases may be unrepresented, and therefore have difficulty in bringing to the attention of the court the fact that their circumstances have changed. Theoretically, there should be no difficulty. Theoretically, all they need do is to inform their solicitor or inform the clerk of the court through the prison authorities. However, in a number of cases, especially those involving less articulate and less well represented defendants, there may be periods when we remand in custody people who, had the changed circumstances been put before the court, could have been released on bail. I urge the Minister, when he carries out the experiment, to ensure that that aspect is checked carefully. We need to understand that the reason why the proposal is being introduced is not that we believe that it is right in justice—none of us would argue that—but that we are taking this action because of the pressure on the courts and the prison system. At the end of the day, that is not the best of reasons for legislating in this way.
We should all be grateful to the Minister for avoiding being too dogmatic about this matter. The pilot experiment, or experiments, will be welcome. Will the Minister assure the House that the monitoring of the experiment will be carried out carefully and independently? I urge him to consider that the magistrates courts that are asked to deal with the hearings should not be the bodies to undertake the research. If they were, I fear that the research would be somewhat subjective. I should be grateful if the Minister would tell the House what arrangements he has in mind for the research that will be necessary to discover whether the experiment works. I ask the Minister to consider whether the pilot projects might not be carried out in the same areas, and at the same time, as pilot projects, to limit the delay between arrest, committal and trial.As the Minister knows, in Committee I expressed the view that there were other hearings in the magistrates courts with which we could dispense, particularly the formal committal proceedings which take place in most cases, although not in every case. I ask the Minister to consider not only my view but the strongly expressed private view of the Under-Secretary of State for the Home Department— the hon. Member for Grantham (Mr. Hogg)—who, I think, agreed with me in Committee, speaking not as a Minister but as an individual Member. Will the Minister consider, if these experiments are successful, a possible pilot project to deal with committal proceedings in a similar way?
I am grateful to hon. Members for the manner in which they have received the new clause. The hon. Member for Hammersmith (Mr. Soley) was right to say that this decision is being taken for severely practical reasons. One cannot run a system as complicated as the criminal justice system without having severely practical considerations always in the forefront of our minds. There is nothing magic about eight days. It just happens to be the figure that was determined by previous legislation. We are anxious to be businesslike and to strike a fair balance. I am grateful to the hon. Gentleman and to the hon. and learned Member for Montgomery (Mr. Carlile) for recognising that we have here an opportunity, as they say, to suck it and see. I hope that we can explore the results in a way that will enable all of us to reach the appropriate conclusions.That leads me to what the hon. and learned Member for Montgomery said about the manner in which this experiment will be monitored. We have not reached any settled conclusions on that. If the hon. and learned Gentleman would like to write in a little more detail about what he has in mind, we would be delighted to hear from him. Obviously, we want the research process to take proper account of the views of those who will have an influence over the final shape of these matters. The hon. and learned Member for Montgomery referred to formal committals, or the section 1 committals, as they were known in my prehistoric days of practising at the Bar. Inevitably, a spotlight is shone on the committal arrangements. We have reached no concluded view on the future of committal proceedings, but the hon. and learned Gentleman well knows that these are matters that fall to be examined. I dare say that, in due course, a Minister will come to the Dispatch Box to talk more about that. It is certainly not an item on our present agenda. I should like to clarify a point where I might not have been at my most clear. It concerns the impact of proposed subsection (4), which amends section 128A of the Magistrates' Courts Act 1980 and what it means. We are saying in that proposed subsection that the decision to remand must take account of the time in custody. It does not of itself make the lapse of time a new factor for bail applications, but, read in conjunction with the Nottingham justices case, it will make a material difference. That case suggests that a lapse of time might in some cases count as one already. Each court's decision on what difference that makes will determine whether it will hear an application. In fairness, it places squarely before the court a major issue that must be in its mind— the length of time that a person will remain in custody as a consequence of a particular decision. I hope that that makes the position clearer.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 27
Enforcement Of Compensation Orders
(1) The following subsections shall be substituted for section 36(1) and (2) of the Powers of Criminal Courts Act 1973 (suspension of compensation orders pending appeal)—
"(1) A person shall not be entitled to receive any payment due to him under a compensation order—
(a) In any case until the expiry of the period prescribed by law for the giving of notice of appeal against the decision of the court by which the order has been made; and (b) where notice of appeal is given within the period so prescribed, until the determination of the appeal.
(2) Where a compensation order has been made against any person in respect of an offence of which he has been convicted, the order shall cease to have effect if he successfully appeals against this conviction of the offence."
(2) The following subsection shall be inserted after subsection (3) of that section—
"(4) Rules under section 144 of the Magistrates' Courts Act 1980 may make provision regarding the way in which the magistrates' court for the time being having functions in relation to the enforcement of a compensation order is to deal with money paid in satisfaction of the order in the event that the order subsequently ceases to have effect.".'.—[Mr. Douglas Hogg.]
Brought up and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to take Government amendments Nos. 110 to 112 and Government amendment No. 114.
The purpose of new clause 27 and the amendments grouped with it is to change the procedure governing the enforcement of compensation orders. At present, the operation of compensation orders is suspended until the time during which an appeal may be made has elapsed or until any appeal which is made has been resolved. New clause 27 provides that, although payment may not be made to the victim during that period, enforcement against the offender is not specifically prohibited. We envisage that, as is the case with fines now, enforcement would not normally be pursued while the question of an appeal remained, but the unqualified total suspension pending appeal, which is unique to compensation orders, allows the defendant to avoid payment for a long time, and that is undesirable where large sums may be involved. It has been suggested that in some cases the system has been abused.The enforcing court would hold any money collected from the offender until an appeal, or the possibility of one, had been resolved, or had elapsed. It will then be paid over to the victim, if the appeal was unsuccessful, or to the offender, if the appeal was successful. The amendments which are grouped with the new clause are consequential and perhaps require no further amplification.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 29
Review Of Postponement Of Warrant Ofcommitment
"The following section shall be inserted after section 77 of the Magistrates' Court Act 1980—
Review of postponement of issue of warrant of commitment.
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to take Government amendments Nos. 154 to 156 and Government amendments Nos. 149 to 153.
The new clause and the consequential amendments respond to Opposition concern expressed in Committee about the provision in clause 40 that notice shall be deemed to be served if sent by registered post or recorded delivery to a defaulter's last-known address. That concern centred on the possibility of deserving cases—for example, hospitalisation— where that provision might lead to the warrant's being issued without the court being aware of the circumstances. The hon. Member for Hammersmith (Mr. Soley) suggested then that the solution might be to allow the officer enforcing the warrant a discretion not to do so in such cases. We considered that seriously but did not feel that it was desirable to undermine the authority and finality of the order in that way because it might put the enforcing officer in an invidious position, second-guessing the court.We have come up with an alternative, of which I hope the hon. Member for Hammersmith will approve—to follow the present arrangements for the enforcement of maintenance in the courts. This will allow the defendant to apply to the court, at any time, for the case to be reviewed in the light of circumstances arising since the court decided to issue the postponed warrant. In the cases identified by the hon. Member for Hammersmith, enforcing officers could advise defaulters of the possibility of applying for a review and could delay acting on the warrant. That is common practice already, and it could continue under what is proposed. It is, of course, important that this new proposal should not be a pretext for deliberate abuse and delay in unmeritorious cases— hence the clear provision in amendment No. 153 that the court's original decision on the terms of postponement and any subsequent decision to activate the warrant may be reviewed only on the basis of information not before that court. It is right also that the onus should be on defaulters to notify the court of any adverse change in their circumstances and, in the context of the "deeming" of notices to be served, of any change of address. This new right for the defendant to apply for a further hearing is additional to, and independent of, the court's power, as specified by clause 40, to hold a further hearing to consider activating a postponed warrant in the event of further default. I hope that that shows that we have done some constructive thinking since Committee stage and that these measures will be acceptable to the House.
I am grateful to the Minister. This is a difficult area in which we do not wish to undermine the court's authority. However, the Minister recognised in Committee that there had been occasions when a warrant might not have been served effectively because of reasons that were outside the control of the person who was to receive the warrant—for example, if that person was working away from home or in hospital. As this measure has been designed to meet such special cases, I accept the new clause.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 2
Restrictions On The Imposition Of Custodialsentences On Offenders Under 21
(1) The following subsection shall be substituted for section 1(4) of the Criminal Justice Act 1982—
"(4) Where a person under 21 years of age is convicted or found guilty of an offence, the court may not—
(a) make a detention centre order in respect of him under section 4 below; (b) pass a youth custody sentence on him under section 6 below; or (c) pass a sentence of custody for life on him under section 8(2) below;
unless it is satisfied that the circumstances, including the nature and gravity of the offence, are such that if the offender were aged 21 or over the court would pass a sentence of imprisonment and that no other method of dealing with hirn is appropriate because—
(2) The following subsection shall be substituted for section 2(4) of the Criminal Justice Act 1982—
"(4) Where a court deals with a person under 21 years of age by a method whose use in the case of such a person is restricted by section 1(4) above, it shall state in open court the reasons why, having taken account of those restrictions, it is satisfied that no other method of dealing with him is appropriate".'.—[Mr. Clive Soley.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.This new clause is designed to consider the problem of locking up young people. We know that in this country we lock up more young people than any other comparable country in the Western world. We also know that the failure rate—the number of people who are reconvicted within two years of release— is incredibly high, far higher than that for almost any other form of disposal. The failure rate varies between 70 per cent. and 80 per cent., although occasionally it falls a little below 70 per cent. Therefore, by any standard, it is a pretty disastrous form of treatment for young people which does little other than to teach them to live in an institution, and perhaps make it that much easier for them to return. It is in all our interests to reduce the number of young people in custody and to use other sentences wherever possible. That is not to avoid the obvious problem that some young people, like some older people, can be a danger to society. If that is the case, they must be locked up. However, from all the evidence from the Home Office and elsewhere, we know that we lock up far too many people. Successive attempts have been made to tighten up this issue. The new clause tightens up the guidelines that a court must apply before imposing a custodial sentence on a young person under 21 years of age. I expect that the entire House, including Ministers, will join me in thanking the parliamentary all-party penal affairs group which is behind the thinking on this. I should like to thank also Mr. Paul Cavadino, who has done work of a high standard for that Committee. I understand that that does not always receive the recognition that it deserves. The new clause spells out—as has been spelt out on other occasions— that a young person should not be locked up unless
As I have already stated, the new clause clarifies the statutory guidance currently governing the use of custody for young offenders, contained in section 1(4) of the Criminal Justice Act 1982. In practice, the criteria contained in that section of the 1982 Act have been of some use in guiding the courts. However, many courts have applied them loosely and that has considerably reduced their usefulness. Most magistrates and justices' clerks appear to welcome the idea of more detailed statutory reasons for custody. A research study by Elizabeth Burney, conducted in 12 magistrates courts, concluded that the principle of giving statutory reasons in court was"(4) Where a court deals with a person under 21 years of age by a method whose use in the case of such a person is restricted by section 1(4) above, it shall state in open court the reasons why, having taken account of those restrictions, it is satisfied that no other method of dealing with him is appropriate."
4.45 pm As I have already stated, it is not just a question of the dire step of depriving a young person of his or her liberty, but a recognition that that is often one of the least effective ways of dealing with a young person, if our interest is in preventing that person from re-offending— which I assume is the case for us all. Elizabeth Burney's study continues:"on the whole welcomed, especially by the justices' clerks. It was felt that, as guidelines, they set the right tone, encouraged the right approach and (taken together with rules about legal aids and social inquiry reports) provided a series of hoops through which sentencers must pass before they could take the dire step of depriving a young person of his liberty."
However, other research has shown that the three criteria that I quoted from section 1(4) of the 1982 Act are interpreted differently by different courts, and often much more widely than was intended. In the first instance—that is to say,"The process 'concentrates the mind and stresses accountability' in the words of one justices' clerk; and a chairman added that it could also be a useful check on 'the odd wayward magistrate' who would otherwise want custody regardless of finer points".
it has been suggested that, although there was a good deal of agreement between those interviewed about how that criterion might apply, on detailed interpretation there was considerable scope for individual differences in sentencing. A study by Frances Reynolds, of juveniles sentenced in a Northamptonshire juvenile court in 1984, included a case in which the magistrates justified custody on that criterion because"because it appears to the court that he is unable or unwilling to respond to non-custodial penalties"—
We are attempting to deal with such issues in these provisions. A study of a juvenile court in the north-east of England stated that some magistrates used the phrase "unable or unwilling""other disposals such as cautions or conditional discharges have not been successful".
No-one who supported the 1982 Act could have conceived that a custodial sentence could be justified on the ground that an offender has re-offended if his only previous disposals had been cautions, a conditional discharge, or an attendance centre order. Turning to the second criterion mentioned in the 1982 Act—"to send a juvenile into custody when his only previous disposal was a conditional discharge … another juvenile had previously had an attendance centre order and the report was recommending either a community service order or supervision as the means of disposal for the current offences".
the phrase "protection of the public" is open to wide interpretations. Elizabeth Burney commented:"because a custodial sentence is necessary for the protection of the public"—
That is a different interpretation from what is normally meant, either in this place or in the higher courts when they are considering the protection of the public. Elizabeth Burney continued:"Some defined it narrowly as relating strictly to the dangerousness of the individual offender in terms of physical harm threatened to another, or else to the public at large on account of pathological behaviour … some sentencers preferred to ascribe 'protection' to the supposed deterrent effect on the individual of receiving a custodial sentence."
In other words, the courts considered the deterrent effect on other people. Therefore, those provisions have proved ambiguous. The third criterion in the new clause is:"In other courts however—and one in particular-there was a very definite view that 'protection of the public' embraced general deterrence."
Different definitions of seriousness were used by magistrates. For some offences, for which custodial sentences were justified on "seriousness", the grounds were not nearly as serious as many committed by numerous recidivists in the sample by Frances Reynolds who were given non-custodial sentences. Therefore, the Act as it now stands has been widely interpreted. One way of improving matters would be for the Court of Appeal to step in and lay down guidelines on the way in which the courts should interpret section 1(4). Indeed, following the research studies to which I have referred, in a series of judgments the Court of Appeal has begun to lay down guidance on the "seriousness of the offence" criterion—for example, for offences of violence, arson, robbery and burglary which do or do not satisfy the criterion. However, few cases so far have shed any light on the "protection of the public" or the "unable or unwilling" to comply criteria. The parliamentary all-party penal affairs group had hoped that the process of judicial guidance would continue. I think that we would all join in that hope, as it would increase the effectiveness of section 1(4). However, some of the other suggestions of this new clause would also help. The new clause makes the following principal changes in the three criteria contained in section 1(4) of the 1982 Act. First, on the criterion"because the offence was so serious that a non-custodial sentence cannot be justified".
the new clause specifies that the need for circumstances"because it appears to the court that he is unable or unwilling to respond to non-custodial penalties",
should be an additional requirement for that and the other criteria. That is designed to met one of the earlier points that I raised—that, as presently formulated, it has been stated that the criterion"such that if the offender were aged 21 or over the court would pass a sentence of imprisonment"
We believe that that will meet the problem. Secondly, a requirement of"can suggest, at least to a bench of magistrates insufficiently advised, that the fact that other non-custodial dispositions have already been tried and 'failed' is a sufficient reason to resort to a custodial sentence regardless of the seriousness of the present offence."
has been added to the above. The word "history" is used in other parts of the 1982 Act and it cannot reasonably be interpreted as a failure to respond to a single conditional discharge, for example, as the present criterion has been interpreted in some cases. To the second requirement, that a custodial sentence is necessary for the protection of the public, we have again added the phrase "serious harm" which has been used in mental health legislation and is interpreted as relating to serious offences against the person. It would prevent courts from using this criterion to justify custody for such offences as shoplifting, as has happened on some occasions. The third requirement, that"a history of failure to respond to non-custodial penalties"
has been left unaltered, because the Court of Appeal has already begun the process of usefully clarifying this criterion and will no doubt continue the process in future judgments. The all-party group favours this approach as a way of reinforcing and building on the criteria established in 1982 which the Court of Appeal has begun to refine and to which its judgments have increasingly drawn the attention of the lower courts. Finally, the new clause requires that courts shall state in open court, having taken into account all those restrictions, the reason why it is satisfied that no other method of dealing with the offender is appropriate. I hope that that will meet many of the problems that courts have found in interpreting the Act. I hope that it will lead not only to a reduced use of custodial sentences for young people when they are inappropriate and counterproductive but to a more consistent form of sentencing for young people."the offence was so serious that a non-custodial sentence cannot he justified",
As the hon. Member for Hammersmith (Mr. Soley) has made clear, the new clause is the work of the parliamentary all-party penal affairs group. It seeks to replace part of the 1982 Act, which was brought about by that same group winning a vote against the Government during consideration of the legislation in the other place. At that time, the Government were doubtful whether statutory restrictions of this type were effective, and we are still somewhat sceptical. However, we see no objection to these proposals being accepted as a refinement of the thinking behind the 1982 Act. I shall recommend to the House that it accepts the new clause.The 1982 Act simplified and rationalised the structure of sentencing for juveniles and young offenders, in effect replacing the mish-mash of custodial sentences, many of which were indeterminate, with two sentences, youth custody and detention centre, while creating a framework in which alternatives to custody could continue to be developed. Community service was extended to 16-yearolds and some 2,000 orders were made in 1985, showing it to be a useful extension of the courts' powers; and the courts' power to make supervision orders were strengthened. The Government have lent their support to the growth in the use of caution. The number of young offenders cautioned for indictable offences increased from 98,000 in 1982 to 122,000 in 1985. The hon. Gentleman argued that the 1982 Act has led to an increase in the use of custody, but I am not sure whether that is the case. In 1982, the last year of the old arrangements, some 7,100 juveniles went into custody, which represented 7·5 per cent. of all sentences and cautions. In 1985, 5,900 juveniles went into custody, which represented 6·1 per cent. of all sentences and cautions, and therefore a decrease. He is on superficially stronger ground in the case of young adults. In 1982, 22,100 young adults went into custody, which represented 17·9 per cent. of all sentences and cautions. In 1985, 24,400 young adults went into custody which represented 20·1 per cent. of all sentences and cautions. It is worth bearing in mind that the 1982 Act abolished suspended sentences and imprisonment, so we must add to the 1982 figure the 5,500 suspended sentences of imprisonment imposed on young adults, many of which undoubtedly would have been imposed as imprisonment as a result of further offending. The picture is by no means as clear-cut as the hon. Gentleman asserted. There is plenty of evidence that the 1982 Act has worked well overall. I have not the slightest objection to changing the criteria. The PAPPAG has had second thoughts and we are happy to endorse them, if the House is.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
Before we move to the next proposed new clause I have a brief statement to make. Mr. Speaker has asked me to inform the House that he has reconsidered his selection of amendments and has decided to add new clause 20. That new clause will now be called immediately after new clause 19 and grouped for debate with it are amendments Nos. 60, 61 and Government amendment No. 62.
New Clause 3
'(1) Any person who shall—
(2) The expression "child" and "young person" mean respectively an individual of or over the age of 10 and under 14 and an individual of or over the age of 14 and under 18.
(3) The instrument used shall, in the case of a child, be a cane, and in any other case shall be a birch rod.
(4) The court in its sentence shall specify the number of strokes to be inflicted, being in the case of a child not more than six strokes, and in the case of any other person not more than 12 stokes.
(5) The whipping shall be inflicted privately as soon as practicable after sentence.
(6) The whipping shall be inflicted by a constable in the presence of an inspector or other officer of police of higher rank than a constable or by some other person appointed by the Court, and, in the case of a child or young person also in the presence if he desires to be present of the parent or guardian of the child or young person.
(7) The instrument to be used shall be—
|Weight not exceeding||9 ounces|
|Length from end of handle to tip of spray||40 inches|
|Length of handle||15 inches|
|Circumference of spray at centre||6 inches|
|Circumference of handle at top of binding||3½ inches|
|Circumference of handle 6 inches from end||3¼ inches|
(8) In all cases where a court is empowered to impose a sentence of whipping a medical report as to whether the offender is fit to receive the punishment will be made available to the Magistrates before they consider sentence.
(9) The whipping shall be inflicted on the posterior over the child's ordinary cloth trousers.
(10) A medical practitioner shall be present during a birching and may at his discretion order the stopping of the punishment at any time.
(11) Where a birching has been stopped on medical grounds a report of the facts shall be forwarded immediately to the Home Secretary.'.— [Mr. Hawksley.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.The new clause provides the House with an opportunity to debate corporal punishment and it is desirable that we should do so. In both the 1979 and 1983 general elections the Government were elected on a policy of law and order and our electors were looking for great things. They have seen an increase in expenditure of 40 per cent. on law and order, and 14,500 extra policemen, many of whom have been taken out of their panda cars and put on the beat, yet the crime figures tell a sad story. The latest figures show a tragic national picture. In my constituency they show a 10 per cent. increase in crime last year. I know that the Opposition led the criticism of those figures, and it is right that our constituents should call for action. If we have not seen the due results from the increases in expenditure and extra police, we are entitled to ask what has gone wrong. We should consider deterrent sentences with encouragement and enthusiasm.
I should like to ask the hon. Gentleman a question so that we can consider his speech in the context of his answer. Is it his view that the United Kingdom should cease to be a signatory to the European convention on human rights?
The hon. and learned Member for Montgomery (Mr. Carlile) should wait and listen, because I shall come to that matter in a moment.
Answer yes or no.
I shall deal shortly with the judgment of that court.Some people may be slightly confused about where I chose the details of new clause 3. Unlike the hon. and learned Gentleman, I am no lawyer and I have no experience in drafting, so I used the wording of legislation that has been applicable in the Isle of Man for many years, namely, the Petty Sessions and Summary Jurisdiction Act 1927, which has stood the test of time and has been of benefit by being on the statute book. 5 pm On my last visit to the Isle of Man to see how they tackled law and order, I heard from the chief of police on the island that many visitors, even after the birch was no longer used, when they arrived at Douglas would ask the first policeman they saw whether use of the birch was still permitted by statute, and when the policeman said yes, the visitors invariably said, "Do not worry, we will not cause any trouble." I think that that indicates the success of a deterrent. This provision would be a deterrent. It worked on the Isle of Man and it would work here. If the new clause is accepted by the House in principle, I would be only too happy to see the details amended in another place to bring it into line with other legislation, rather than have what is applicable in the Isle of Man. If increased expenditure and more policemen have failed to defeat crime, and if the number of assaults is rising, what will solve the problem? Deterrent sentences work, and corporal punishment should be used as a deterrent. When I first raised this issue in Committee on the Criminal Justice Bill in 1982, the debate took place over one day and my speech proposing the amendment took one hour to make with comments from the Opposition. I have no intention of speaking for that length of time now, as this issue can be dealt with quickly. When corporal punishment was considered in 1948, crimes of violence against the person were running at 5,183 a year. By 1981 that figure had gone up to 100,000. Since 1981 it has risen to 125,500, an increase of 25 per cent. Those are the latest figures, which were published the other day. Action is needed, and I believe that the public support action. The last public opinion poll that I saw suggested that about 70 per cent. wanted both capital and corporal punishment. Letters that I have received over the last two weeks have shown support for my proposal. The clause offers, not a finite sentence, but punishment that would be available in appropriate cases to our courts to be used in addition to the remedies that are already available. I believe that most criminals who commit offences at football matches, or who mug the elderly, often for only a few pounds, are basically cowards and would be worried and frightened by the thought of corporal punishment.
Does the hon. Gentleman not agree that those who commit horrible offences of violence will be worried if they think that they will be caught and sentenced to custody? The problem is that the people who commit such offences are rarely caught. Does the hon. Gentleman think that his proposal would change that at all?
I agree that it is important that criminals are apprehended, and I welcome the 14,500 extra policemen that have been provided by the Government.When the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) had responsibility for law and order, he succeeded in getting the police into their panda cars. I welcome the Government's action, because it will ensure that more football hooligans and muggers are caught. Since 1948 we have failed to make any inroads into the fight against crime and criminals. I suggest that this deterrent sentence should be placed in the armoury of the courts. The hon. and learned Member for Montgomery started to shout foul and said that the European Court of Human Rights has said that this cannot be done. I would lose no sleep if we left the European Court of Human Rights. Some of its decisions are most extraordinary. The Tyrer case rested on article 3 of the convention, which says that no one shall be subject to torture or inhuman or degrading treatment or punishment. The court cleared us—although the charge concerned the Isle of Man—on the question of torture or inhuman treatment, and ruled against us only on the question whether it was degrading. The British judge in that case, Sir Gerald Fitzmaurice, not only ruled in our favour, but denied that corporal punishment was degrading. I believe that we should pursue that argument in that court. Is it really degrading to birch a youngster who is prepared to commit horrific crimes at football matches and to mug elderly ladies? I say no. If anything is degrading, it is the treatment that those criminals give to their victims. I hope that the House and the Minister will accept the arguments that we put forward on the new clause. If not, I ask that consideration be given to setting up an independent inquiry, such as the 1968 Barry inquiry, into whether the reintroduction of corporal punishment would be a deterrent. It is now time—20 years after that 1968 inquiry—to have another inquiry and to argue the case if necessary before the European Court of Human Rights. I would welcome such a report, and would look forward to it with interest. I believe that the public are asking for action now. By virtue of the new clause, the House has the opportunity of so acting. I hope that the House and the Minister will accept my new clause.
I believe that the new clause is repugnant, regressive and thoroughly reprehensible. The hon. Member for The Wrekin (Mr. Hawksley) asks not only that this House turn back the clock, but that the clock he turned back to a time that never was, a time when he imagines that public lust for punishment was gratified by corporal punishment. Where does the hon. Gentleman get this nonsense about successful deterrence by the judicial flogging of youngsters?The hon. Gentleman, in putting forward the view that these sentences would have some real deterrent value, is tearing up all the criminological research, including very detailed research that has been carried out by the Home Office under the successive Governments on punishment of young offenders. He is tearing up all the judgments as to how best to deal with young offenders. In addition, he is tearing up what is known of the experience of many schools, especially schools in the private sector, in which corporal punishment has been widely used over a long period. [Interruption.] I hear an interruption from a sedentary position from the hon. Member for Luton, North (Mr. Carlisle), who suggests that it was used successfully. I do not know whether the hon. Gentleman went to a public school, but my recollection, having been to one, is that corporal punishment had little, if any, deterrent value. Few boys felt in any way deterred by the fear of the cane.
Some even like it.
I am reminded that there have been those who have come to like it. Leaving that aside, my view and that of many in education who have been able to judge these things over many years is that corporal punishment in schools never acted as a serious deterrent to anybody for anything to any significant extent.Furthermore, the clause is absolute nonsense. It seeks to introduce into our law a new crime, that of provoking language. I have been subjected to provoking language for the past five minutes from the other side of the Chamber. Is the hon. Member for The Wrekin really asking magistrates courts in his constituency or anywhere else to decide what is provoking language? There is also
What behaviour provokes such a breach? [Interruption.] I wish that Conservative Members would listen. Their pleasure in this new clause is all too worrying. Is the hon. Gentleman saying that behaviour tending to, but not causing, a breach of the peace should justify judicial flogging? Another part of the clause requires whipping, as they are pleased to call it, to be"behaviour tending to a breach of the peace".
Those hon. Members who support this new clause wish to deprive young people of their right of appeal, as is clear from that part of the clause."inflicted privately as soon as practicable after sentence."
The hon. and learned Gentleman will recall from his public school days, as I do, that part of the punishment was the length of time between committing the crime and the punishment being inflicted. The clause says that that time should be lessened. The punishment always waits for the crime. The hon. and learned Gentleman is saying that there should be a great length of time between the time of the offence and the time of the punishment. That is worse than what the clause is proposing.
With respect to the hon. Gentleman, what he is suggesting is more worthy of South Africa than of the United Kingdom. Next, we shall have the hon. Gentleman, whose views on South Africa are well known, introducing an amendment that includes rhino whips. He is saying that he and his colleagues in favour of this new clause want to get rid of the right of appeal. At least we now have it from the mouth of one of the sponsors of the new clause.
No, I shall not give way, because we have other new clauses to debate.In addition, we have heard—at least he put it, as one would expect, frankly—from the hon. Member for The Wrekin that he believes that the 40 years that we have spent as signatories to the European convention on human rights should be thrown away, so that we can have judicial flogging. He also believes that all the advantages that we have had from the convention and the advantages that we have had from ensuring that other signatories adhere to the convention should be thrown away to enable judicial flogging.
Name one advantage.
With pleasure. The Interception of Communications Act was promoted by the hon. Gentleman's Government during this Parliament, and most of its provisions were supported by hon. Members on both sides of the House. That is one occasion when this Government have taken advantage of the European convention, but there are many others.Do the supporters of this new clause really believe that medical practitioners, as required by the new clause, and police officers, as required by the new clause, are prepared to take part in judicial flogging? What a lot of nonsense. The answer to crime among young people is not flogging them. It is better education, which includes some understanding of the role and activities of the police. It is better policing, which places more police officers on the beat so that young people know who they are and expect them to be within the community. It is better sentencing provisions, non-custodial as well as custodial. The real punishment for a child or a young person who commits an offence is when a police officer, almost invariably politely and fairly, comes to that young person, tells him that he has been caught, takes him to the police station, interviews him, and ensures that, if necessary, he is brought up before the court, and when that young person feels the whole panoply of sanctions of the law brought down on him. This new clause is certainly not the way.
I support my hon. Friend the Member for The Wrekin (Mr. Hawksley). I deplore the words of the hon. and learned Member for Montgomery (Mr. Carlile), who obviously has not learnt from the experiences that he, among many on both sides of the House, has had of suffering this form of punishment.The new clause is introduced on the basis of the further deterrent that should be available to the courts in language that the sort of people who perpetrate such crimes for which this punishment is available would understand. The House is right to say to those who physically abuse others, as they do, without thought of property or person, should receive exactly the same treatment at the hands of the courts. In any society, the courts have every right to punish such people in the way that they have punished their victims. This is the type of language that they will appreciate. The hon. and learned Member for Montgomery talked about delay, but it is the very swiftness of punishment that the deterrent would give that is part of what makes it so attrative. I suggest to him that it is attractive because it is swift and has an immediate effect, rather than keeping those offenders— many of whom will be young—of both sexes waiting for some judgment, with the delay that inevitably occurs after these incidents. We have suffered physical crimes in recent times. That is one reason why my hon. Friends are bringing forward tomorrow night the clause on capital punishment that I shall support. One of the reasons why we should inflict this type of punishment on these young offenders is that they so readily inflict it on others. I support the new clause. My hon. Friend for The Wrekin is absolutely right. I supported such a move in 1982 and I hope that the House sees fit to pass the new clause tonight.
I am completely agnostic on the principle that lies behind this proposed new clause, but with some reluctance I have to say to my hon. Friend the Member for The Wrekin (Mr. Hawksley) that I shall not be able to support him. I accept that he is addressing two genuine matters. First, there can be no doubt that large numbers—I am not sure whether it is a majority—of our fellow citizens believe that there is a place for corporal punishment. They tell us that in our constituencies every week. Secondly, it is a fact that among our society today is a significant and growing number of vicious young beasts who, in my judgment, could well be more responsive to corporal punishment than they are to the range of punishments that are generally available through the courts.It was the common parlance, Mr. Deputy Speaker, when you and I were first elected to this House, that there was no such thing as a depraved child, only a deprived child, and that sociological dictum informed a good deal of our criminal justice and sentencing policy for some years. From experience, I have to say that that is not the case. It is a fact that perhaps the most serious crimes are committed now by youngsters between the ages of about 12 and 15, demonstrating, among other things, that whatever else the reason for their crimes, unemployment is not the main one. Much extremely brutal and violent crime is committed by young males between those ages. I shall detain the House merely to give one illustration. Not long ago, an elderly widow in her 80s was imprisoned in the airing cupboard of her council house. She was kept there for many weeks. When her body was eventually taken out, her weight had fallen to four and a half stone. She had lived in darkness amid the bodily juices that had accumulated during the period of her confinement and torture. She was kept there by three youngsters who had stolen her pension book and gone to the post office each week to obtain her pension by forgery. The old lady was about 84, and the youngsters who tortured and killed her were aged 14, 12 and 11. respectively. It is the common experience of the police that many extremely violent crimes are perpetrated by very young people. However, the new clause suggests—
What were the sentences?
I am afraid that I cannot help the hon. and learned Gentleman, but the sentence was certainly not physical chastisement.The issue before us is whether—
The hon. Gentleman has told us of an awful crime, although one such story does not prove that young people are more violent than older people. He said that the old lady died. If that is so, I presume that the offenders are now detained during Her Majesty's pleasure. One whipping would not be adequate to punish such a crime. How can he call that example into play to justify the new clause?
The hon. Lady should listen more carefully. I said at the outset that I could not support the new clause. However, I was saying, and I repeat, that my hon. Friend the Member for The Wrekin is addressing a genuine problem, first because, whether we like it or not, many of our constituents believe that corporal punishment has a role to play, and, secondly, because it is a fact that there is in our society a significant and growing number of young beasts who inflict the most appalling physical tortures upon the elderly people whom they abuse.The question is whether the new clause would play a useful part in deterring such conduct, and my difficulties with that are twofold. First, there is no way that, in practice, we could achieve the intention of the clause, that whippings should be administered as soon as practicable after sentencing. There would be bound to be all kinds of prospects of appeal. The whippings would need to take place in the presence not only of parents or guardians, but of a medical practitioner. In some circumstances, it might be necessary for another party— for example, a social worker—to he present. The whippings could not take place in private; they would become a quasi-public exhibition. Inevitably, and rightly, the press would be interested, so the whipping would become a rather macabre and dismaying semi-public event. Secondly. subsection (6) states:
presumably a police constable—"The whipping shall he inflicted by a constable"—
I cannot believe that my hon. Friends—whose purpose I respect—can have consulted the police service before drafting that proposal. I have not consulted the police on the matter, but I am sure that the Police Federation of England and Wales, the Scottish Police Federation or the Police Federation for Northern Ireland would unanimously resist the proposal, for several reasons. First, a very large number of youngsters could fall to be whipped, and a police officer in a Bridewell—in this case a police station— might thus be required over a period of time to administer whippings to a great many youngsters. Any police officer who did that would become a pariah in the local community. Neither he nor his family could possibly live in the community if it became known that he was regularly administering whippings. Secondly, the overwhelming majority of police officers go into the service for a purpose entirely different from the administration of punishment. Their purpose is to prevent breaches of the criminal law and to uphold the Queen's peace. To turn them into surrogate whippers on behalf of the law would be to go against the whole purpose of the police service. Any police officer who was willing to undertake that duty, week in, week out, would not be the kind of man I would wish to have in the police service. Therefore, while I have a good deal of respect for my hon. Friend's purpose in the new clause, I do not think that, in choosing the police, he has chosen the right instrument. The whippings could not be achieved in the speedy fashion that he describes and, on balance, I do not believe that the new clause would fulfil my hon. Friend's purpose."in the presence of an inspector or other officer of police of higher rank".
I did not intend to speak in the debate. I have not put my name to the clause and I shall not support it in the Lobby because it is impracticable. However, the arrant nonsense talked by the hon. and learned Member for Montgomery (Mr. Carlile) should not be allowed to pass without the injection of at least some common sense into the debate.A large proportion of my constituents deplore the appalling level of violent lawlessness in our society. However, whatever resources are made available and whatever action is taken by the Government to promote law and order—and I would be the first to praise the Government in that respect—still the violence increases and the peak age for offenders is 15. None of the 15-year-olds can be affected by economic punishment and, under article 3 of the European convention on human rights, none of them can apparently suffer physical pain, mental pain or anything degrading or humiliating. What then is left of punishment? When I go to Uttoxeter market or to the market place at Burton, people ask me, "What are you doing about law and order? What are you doing about our schools, which are churning out not only truants but young vandals and muggers who have not the slightest respect for others in society?" That is a matter for concern, which was not nearly as prevalent 20 or 30 years ago, before the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) and other hon. Members—mostly, although not exclusively, from the Labour Benches— decided that what was needed to deal with criminality was the soft, gentle, kind, caring, helpful and non-violent approach. It has been an absolute disaster. The hon. and learned Member for Montgomery and other hon. Gentlemen laugh when my hon. Friend the Member for The Wrekin (Mr. Hawksley) puts forward an alternative proposal, which at least makes some kind of attempt to respond to the wishes and demands of the people whom we represent. Those who support the gently, gently, softly, softly, kindly, kindly approach, which has utterly and completely failed, ought to be quiet and not laugh.
The hon. and learned Gentleman mentioned his constituency. Is it not a fact that the BBC programme "The Monocled Mutineer" featured a man called Percy Toplis who I think came from the hon. Gentleman's constituency, or from next door. The programme revealed that he was birched at the age of 11, and he finally finished up a few years later shooting a policeman after he had deserted from the Army. What good did the birching do him?
That is very interesting, but I doubt whether such a confused individual could have come from my constituency. Of course it is possible to point to examples, perhaps many or them, of how corporal punishment at school has had a counter-productive effect and not produced successful results. I am not talking about that. I am saying that hon. Members should not laugh when I and my hon. Friends are expressing the genuine concerns, worries and fears of people who do not accept that corporal punishment in the home or in the school has to be thrown out of the window. The way to control youngsters in their early stages is to use a firm hand, if necessary. We have sold the pass, but if our schools had managed to control youngsters through the use of corporal punishment there would be less truancy, vandalism and violence among the 15, 16 and 17-year-olds in our society.I am sorry that in a matter of this kind, in which I think that the spirit is not only right but is a response to the proper demands of the people in our society, time has passed us by and it is no longer a practical proposal. There are too many obstacles and it is not something that the Government can countenance. I speak because I do not think that hon. Members should laugh at the kind of feeling that is enshrined in this clause.
I rise to support my hon. Friend. My name is on the new clause— not because I get any pleasure from the thought that evil young people will end up being birched, but because constituents— [Interruption.] Hon. Gentlemen never listen to arguments; that is one reason for the situation that we are in today. The logic of the argument for the retention of corporal punishment was not listened to in the halcyon days when the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) was Home Secretary, when he talked about the kind of civilised society that he was creating, from which we are now suffering. The right hon. Gentleman obviously does not have the same concerns as his constituents and those of other hon. Members who live on the council estates and have to tolerate the awful, vicious, nasty youngsters that are running around those estates.I grew up on a council estate when youngsters like that did not exist. One of the reasons was that at that time the law had a much more effective way of dealing with those who transgressed. It is true that some may have graduated to much more vicious and evil crimes; I do not doubt that at all. But there were many more who were deterred, and it is the absence of adequate deterrents today that worries our constituents; it is the absence of what they see as adequate deterrents. It is quite right that this matter should be properly debated. Are we going to say in the House today that there is nothing effective that we can do about the growing number of young people who initially are basically nasty and who, if they are not deterred, can become evil and terribly vicious? It is a sad fact that those who get away with these basically nasty activities move on to more nasty, vicious actions. That is why we get increasing numbers of offenders. That is why 15 is the age of the majority of them. Is it not terribly sad that, when we have raised the school-leaving age to 16 as a statutory requirement, we should get this problem? The statutory age when I was at school was 14, but there were certainly no 15-year-olds at that time running around council estates causing mayhem and frightening old ladies, pensioners and others. That is the situation that exists on many of our large council estates, and it is quite wrong. I would have thought that Opposition Members, who often represent parts of the country where these large estates exist, would certainly have been much more concerned. This is not an occasion for personal abuse; it is not a matter on which we should attack each other or each other's integrity. That is what I find so disturbing—that if one wants to deter, one's integrity is attacked. I cannot understand that kind of logic.
The hon. and learned Member for Montgomery is shaking his head. Perhaps when he reads his speech tomorrow he will realise how offensive he was and indeed how he suggested that there was no integrity among those who put their names to this new clause.
Will the hon. Gentleman give chapter and verse of the evidence which justifies this absurd claim that what is proposed in the clause would have any real deterrent value at all? I believe that there is no such evidence, that the hon. Gentleman cannot point to any and that that is why we have heard nothing about any. I regret to put it this way, but in my view it is just their bigoted opinion.
The hon. and learned Gentleman has again adopted the tactics of the clever lawyer, but he is not clever enough, because there is substantial evidence. The evidence that I gave was that when I was a schoolboy, when I was growing up on a fairly rough and tough council estate there were not the numbers of youngsters indulging in vicious crimes that there are today. That is a statement which the hon. and learned Gentleman cannot refute, because the facts are all there for anyone to examine. If one examines the figures for immediately before, during and after the war, one sees that there was nothing like the number of youngsters involved in those vicious, hideous nasty crimes that there is today, because deterrence was available.
I sometimes wonder where the hon. and learned Gentleman and other hon. Gentlemen like him grew up, because I remember very well what the circumstances were. That is all I can say to hon. Gentlemen who attack the integrity of those who believe that we must look for and try to find alternatives.I take the point made by my hon. and learned Friend the Member for Burton (Mr. Lawrence) that, sadly, we have moved into an era, as a result of the signing of the European convention on human rights and of other factors, in which Governments now find themselves boxed in. But the right place to debate these matters is in this House, so that the country knows that we care. At some future date, we may wish to repudiate agreements that have been entered into internationally, as indeed has happened before. We may wish to opt out at some future date. It is right that we should always put forward the views of our constituents so that they are on the record and at some future date may be acted upon. That is why I support this new clause.
The hon. Gentleman is talking about council estates. Does he not think that prior to 1979 many of the kids he refers to, certainly in the mining communities, would have gone to work at 4.30 in the morning? Does he realise that of the 750 kids who left school in my constituency at the last school-leaving period, only 11 have found work? Those kids would normally go to the pits. Work is the deterrent for the youngsters.
Without realising it, the hon. Gentleman has made my argument. If he reads carefully what he has just said, he will see that what he said in effect is that youngsters of 14 and over would be going to work. He has to realise that over 50 per cent. of those who commit crimes are under 15.
We were at work at 14.
Yes, but today over 50 per cent. of the youngsters who find themselves in trouble are under 14. That is what the hon. Gentleman has to realise. That was not changed by the alteration in the school-leaving age, it was the fact—
The hon. Gentleman should listen to what I have to say, as I listened to him. Youngsters between the ages of 10 and 14 are appearing in our courts today. Things would be no different during the period he was talking about because they would still have been at school and would have been subjected to the disciplines of the school at that time, which included the use of corporal punishment and all the other deterrents I have mentioned. The hon. Gentleman has got it all wrong. Unfortunately, he does not want to face the facts.
Like other hon. Members, I did not intend to speak in the debate. However, if such crude and silly things can be said in the Chamber, they need to be challenged, and we cannot let them go unchallenged.The Government are trying to support a myth and avoid the link that is known and proven whereby in any developed society, when unemployment rises, crime rises. The Prime Minister has falsely asserted that that is not proven but research evidence is absolutely clear. The Prime Minister has denied that twice from the Dispatch Box and she is wrong. The research evidence shows otherwise. The excuse she used—it has been used again today—is to suggest that no one over the school-leaving age commits crime. That is nonsense. We know that some crimes are committed by young people under the school-leaving age but masses of crimes are committed by young people over the school-leaving age and under 25. Conservative Members know that, but they just want to distort the facts and fabricate the evidence to justify their own ignorance and prejudice. Conservative Members have called in aid their own constituencies. In my constituency, there is an enormous problem of rising crime and a terrible problem of burglary, which means that most people are living with the fear of burglary all the time. It has risen rapidly in recent years There is an enormous fear of street attacks and all sorts of other crimes. However, none of my constituents has ever said that the answer is corporal punishment. It is obvious that my constituents have a great deal more wisdom, intelligence and understanding of the nature of the world and the nature of the problem than Conservative Members. Conservative Members have been exchanging views about where they grew up. I grew up in my constituency, and there was not that sort of fear and crime. I remember when we used to hear horror stories about the United States of America. We used to hear how everyone feared burglary, had alarms on their houses and used to take loose change in their pockets to give to the muggers. That was the society they lived in. We could not believe that, and we never thought that it would be like that here, but now it is getting like that. We must ask why. The answer is that society is more divided, bitter and nasty than it ever was in my youth and than I ever expected to see in my lifetime. It is creating a nasty, brutalised atmosphere, a lack of morality and a lack of sharing and concern for each other. This new clause would be a further brutalisation. 5.45 pm What respect would we have for our criminal justice system if it took in young people and beat them when they committed crimes? More and more people would feel antagonistic to the system, they would reject it and lose their respect for it. That is what would come about. Conservative Members are not seeking to solve the problems of crime to make a safer and better society, but are seeking further brutalisation, and they would create nastier and nastier crimes. The extremely important question is, what evidence do they have that beating and whipping would reduce the rate of crime? On one occasion at my junior school, when I was about six, I was hit by a nun with a pointer. I still remember that, and I still have a sense of hatred towards her in my heart. She hit me twice on the hand. I also remember at my school many young lads who used to say, "I can take it." There were those tough kids who were always in trouble and who gloried in being able to be beaten and not mind. They were brutalised by the system and they had less and less respect for the school that hit them in that way. There is no evidence that it would deter crime. Conservative Members should not just keep asserting that it will because there is no evidence. I feel confident that we have not yet reached the stage where this society has so little civilisation that people would seriously recommend corporal punishment. However, if we ever reached that stage it would be just a further twist in the bitterness" division, polarisation, violent and nasty crime and the lack of respect for our criminal justice system.
I support the basic contention of my hon. Friend the Member for The Wrekin (Mr. Hawksley) that corporal punishment should be available once more. It is a fact of life that we have some very nasty youngsters who just do not respect law and order. They have grown up in a permissive society under the poor parentage of people who do not believe in the punishment fitting the crime. These youngsters need quick and severe discipline as a way of correcting them and making them distinguish the difference between right and wrong.I have always believed that discipline breeds respect, and the new clause would certainly bring about some additional respect, just as we once had in the Isle of Man. I can give an example of the "baby squad" in Leicester, which went out of its way to be nasty, to intimidate elderly people and to break into elderly people's houses. Instead of receiving instant and proper discipline when the members of the squad were caught, they effectively got away with it. We have had football hooligans charging into Leicester City football club. They should have been birched. If the clause were to be passed, I believe that they would be birched, and that would be good. We need to correct the anti-social, criminal miscreants who are to be seen wandering on our streets today, within a mile of the House of Commons, and certainly in the Brixtons and Islingtons and many other places of high inner-city deprivation.
What about Leicester?
Yes, even in some parts of Leicester.The fault must lie with the permissive society as advocated by softie Labour Home Secretaries, such as the right hon. Member for Glasgow, Hillhead (Mr. Jenkins). I want to see the punishment fitting the crime. The birch would certainly be an effective punishment. We must realise that many of our youngsters are potential law breakers. What punishment is available now? What sanctions are available to the courts today? It is all very well for Opposition Members to laugh and think that we are being nasty and enjoying speaking in this way, but I can tell them that the majority of parents want to see discipline brought back into society. They do not always discipline their children quickly enough. They believe, wrongly, that the schools will bring about the discipline, but the schools are now precluded from using the cane, which is a great tragedy. The one disadvantage of the royal wedding of the Duke and Duchess of York was that on the eve of that wedding we had our important debate on corporal punishment. I was a teller for the Ayes in support of bringing back corporal punishment in the schools, but, because of the crowds outside in Parliament square, a number of hon. Members—12, I am told—were prevented from getting into the House to ensure that corporal punishment was still available in our schools. I think that it is a great tragedy that we do not have it. The sanctions that exist in schools— lines, cold showers, a cold bath, detention—are no deterrent. How would they correct anything? The short sharp shock that was advocated by the deputy Prime Minister—now the Leader of the House of Lords—was considerably more effective. So it would have been with the cane. It could have been used as instant or belated punishment. Other hon. Members might have had to wait outside the headmaster's door— as I did— to receive a good whacking. It was a nerve-wracking experience waiting to see if he would really cane me. Opposition Members might have a few laughs about the length and weight of the cane, but it is the most effective punishment that is available.
Will the hon. Gentleman give way?
The European Court of Human Rights has no right to interfere in our society. We did not ask it to tell us how to chastise our children. We did not ask it to interfere in the issue of wearing seat belts, either. Slowly, day by day, our rights are being eroded.Parents want the new clause to be accepted. It may not be perfect, but it is right to protect our young people from themselves and to give the courts the power to order a caning. I do not believe that no policeman wants to mete out some sort of punishment. In the old days, when a policeman caught a young lad scrumping apples, he would have clipped him round the ear or taken him home to his parents for instant discipline. Now, they probably say that the apples are on the other side of the fence and that the lad can get away with what he has done, that he must have gone to the wrong kind of school, or that his dad is, perhaps, unemployed. There is no excuse for ever breaking the law. The new clause would bring back a corrective balance and stop the rot. Tomorrow's parents are today's children. Those children are getting away with their crimes. Their parents want better from all of us, and only Conservative Members can bring about what those parents want.
Slum childhoods are often a matter for hilarity in the House. We have heard about a slum childhood in Lancashire. I grew up on a slum in Sheffield, and there were two murders in the back yard of the house in which I lived before I reached the age of seven. Then, Adolf Hitler flattened the area in the blitz. There may have been more murders since then, but it was a rough neighbourhood. One of the two people was murdered by strangling, and the other was stabbed at a party by someone who had jumped off the toilet roof. It was the type of neighbourhood about which people do not brag when they are older, but they have an expert knowledge of crime and criminals.I knew a man who had been birched as a boy. He lived in the next yard, and received 12 strokes of the birch for stealing half a hundredweight of coal. Another acquaintance got six strokes of the birch for stealing the co-op milkman's horse and running away with it. He looked after it very well at the local recreation ground for three days, and the judge said that he would have let him off if he had not stolen the money as well. It is funny to look back at such events 40 years on, but the man who stole the coal and was birched for it brought up five sons to be the biggest villains and criminals that the city had ever known.—[HoN. MEMBERS: "Name them."] I could name them. Three of them later deserted from the Army and finished up in the glasshouse, which did not do them any good, either. They may be getting on in years now, or they may have faded away altogether. I have lost touch with the area. The other week the BBC televised a classic case of what I am talking about. Percy Toplis was birched at the age of 11, and finished up leading a mutiny in the Army and shooting at policemen when he emerged from it. Caning is no deterrent. It hammers revenge into men's bodies and burning iron into their souls. They want to make society pay for the indignity and humiliation that is meted out to them.
Will the hon. Gentleman concentrate on the figures from the Isle of Man, which are relevant? Corporal punishment is used there, and those caned up to 1982 show a recidivist rate of 28 per cent. In this country, the rate is 75 per cent. Why?
The hon. Gentleman is talking about an isolated place that does not suffer from the problems of our inner cities—problems such as homelessness and the absence of a stepladder to better things. Crime went down in the 1950s and 1960s. The incidents that I have described occurred before the war—I was only seven at the time of the blitz. Now, as in the 1930s, people at the bottom are becoming full of despair. There is no stepladder, no hope and no future. People do not expect to jump to the top of the stepladder, but a big strong lad bursting with muscles wants to use his strength in a job.There was no crime in 1950s and 1960s— [HoN. MEMBERS: "None?"] Practically none, because lads left school and went down the pit, into the steelworks or the shipyards, or down to the docks—to Bermondsey—to unload sacks of potatoes for £100 a week. When they came home they were too tired to do anything but have three pints in the pub and go to bed. There was no football hooliganism then, because there were other outlets for their energy—conscription, for example. People played more organised sport and the jobs were physically demanding. Many of us who worked on the shop floor or in the pits can tell Conservative Members that we went home, had our tea and fell asleep on the settee. We were so tired that we slept for an hour before having a couple of pints. We started work at 6 am and were too tired to go out at 11 pm to a disco to play reggae music and keep the street awake until all hours of the morning.
Will the hon. Gentleman please address himself to what is indisputably the major problem of crime in this country—those who are under 15 years old? How will he deal with them? Does he not think that this type of punishment will make them understand that the physical pain that is inflicted on them corresponds to the physical pain that they have given others?
I accept the hon. Gentleman's statistics, but he is discussing petty crime—stealing milk money.
The hon. Gentleman is referring to children who go to supermarkets, grab something and run out— [HON. MEMBERS: "What about mugging?"] A youngster of 14 is not big enough to mug someone. It is a matter of petty theft. Children on their way to a football match run into a supermarket and pinch a bottle of sherry. They drink two mouthfuls of it and start acting like hooligans. That is not the sort of heavy crime that we are discussing.The whole history of punishment, going back to the mutiny on the Bounty, on which vessel British seamen were flogged and mistreated, shows that the worse criminals are treated physically, the worse they will react. Hon. Members should consider what happens when children are battered. They will invariably find that those children's parents were battered themselves. In every case involving battered children, the parents' history shows that they were battered as kids. Often their grandparents, and their parents before them, were battered, too. That is the result of physical punishment, handed down from generation to generation. It does not eradicate, prevent or stop anything. It puts physical violence into a person, and that must come out somewhere else.
Fear. That is the deterrent.
It is not fear. The deterrent is being caught. Any criminal who knows that it is a cast-iron certainty that he will be caught will not commit the crime. Paying the rates is a perfect example of that. People do not dodge them, because they will be caught. If they do not pay them, they will end up in court. They cannot shift the house and run away, so they pay.With rape it is different. Only one in three rapes ever gets reported. The criminal sees from the papers that women are scared and do not want to go through the hassle. They do not report the rape, so the rapist reckons that there is a two in three chance that the rape will not be reported, and he takes the risk. The deterrent is the absolute certainty of being caught. That is why the number of bank robberies went down in recent years.
Perhaps the hon. Gentleman will say what on earth is the deterrent for a young person who is caught if, having been caught, he is not to be punished.
There is a punishment, a great deal of punishment, for young people, and it is not to make them heroes. All too often they would wear these stripes while strutting around with their mates. We have seen them at football matches, as we saw it on the picket lines and everywhere else. If there is a television camera, it enhances the status of the idiot who runs on the field, or takes a punch at someone, or knocks a bobby's helmet off. This sort of punishment would give him a status too. He would parade his stripes to the rest of the kids and he would be the macho hero who took the knocks, the lumps and the stripes awarded to him. The punishment would do the reverse of what hon. Members intend.
I do not believe that anyone of a mature and balanced disposition and who has read the wording of this new clause would vote for it. It talks of people who
If they are under 10 they will be caned—"whipped" is the word, "with a cane"—and if they are 14 they will be whipped with a birch. I put it to Government Members who have been talking about this that they would not do it to their own children. If they tried to do it to their own children, their own children would be likely to be taken into care because they would have failed as parents—and every one of us knows this. These hon. Members do not support the new clause with any intention of voting for it. They are doing so, knowing that they are going to withdraw it, because they want to get their names in their local papers and pretend that they are getting tough on crime. I challenge any Government Member. They can prove me wrong by calling for a vote and putting the tellers in. I will wait until the time comes to see if they do. One thing that a number of my hon. Friends have made clear—some Government Members believe this too—is that violence begets violence. I have worked with an awful lot of very violent people in my time—"make use of provoking language or behaviour tending to a breach of the peace".
If I had to break down how they voted, I would have to say that a goodly number of them voted for extreme Right-wing parties like the Conservatives and the National Front.One thing that I can say with absolute certainty is that of all those people only a tiny handful did not have violence used against them as children. My hon. Friend the Member for Bassetlaw (Mr. Ashton) is absolutely right to talk about the parents of battered children, because we usually find that one parent or both have also been battered. The only bit of hope that the hon. Member for The Wrekin (Mr. Hawksley) could bring up was the experience of the Isle of Man. We all know that crime is low in the Isle of Man because it does riot have, as my hon. Friend the Member for Birmingham, Ladywood (Ms. Short) said, that splintered, disintegrated community that we have in most of Britain but primarily in the inner cities. This is what has driven up the crime rate. The reason why the crime rate has risen faster under this Government than under any previous one is precisely because they have done more to rip apart the fabric of society and undermine family relationships than any previous Government by means of the general pressure that they put on people, particularly those on a low income. It is no wonder that the crime rate is going up in those families and communities which have collapsed. The hon. Gentleman quoted figures for the Isle of Man. He forgets to say that many people birched and caned there did not come from the Isle of Man. The figures are not comparable. It is no good using the absurd argument that they do not go back, because research shows that such offenders would not necessarily have gone back anyway, if given another type of sentence. Those who are fined, for example, in the Isle of Man do not particularly go back either. So the recidivism rate in the Isle of Man tells us nothing. As my hon. Friend the Member for Bassetlaw said with clarity and force, the thing that deters crime is the chance of being convicted. What we are talking about in this new clause is things like criminal damage. Children are going to be whipped for criminal damage, for scrawling a slogan on a wall. That is what we are talking about. We are actually talking about a clear-up rate which is tiny, because the vast majority of people who commit such offences are not caught. So to talk about any type of sentence as a deterrent is absolute nonsense.
Government Members should remember something else. Not only would they not do it to their own children, but they must ask why it is that a normal healthy adult wants to do this only to a child. Hon. Members will see that adult males are not included, so this will be done only to children. Interestingly, it will not be done to women—it has to be a male child. That tells us a great deal about the psychology of those who wrote this clause, with its careful definition of the length of cane:
Who on earth worked this out? It is a sign of people who have not come to terms with their own problems. They need to think about that very carefully if they are to pursue the matter further. I have already said that Government Members will not push this new clause to a vote. If they do, it will be for one reason—to be able to stand up in their own areas and say that they voted for toughness. Of course, the message that their Government were elected on has failed. Their tough law and order policies have not worked because they have destroyed the very fabric of the communities, the family structures and links within families that prevent crime. In so doing, they and they alone bear the responsibility for the most dramatic increase in crime of all time."Length from end of handle to tip of spray 40 inches … Length of handle 15 inches … Circumference of spray at centre 6 inches".
We on the Government Benches have endeavoured for many years to correct this trouble with law and order.
It is getting worse.
Yes, it is getting worse. We wish to see a country in which women can walk freely without the fear of being molested or raped. We wish to see a country where the elderly can feel safe inside their own homes and out after dark. We also want to see a country where our children can play safely without fear of being abused or killed. That is the sort of vision that we have. This is the sort of thing that we have worked towards.The provisions of this new clause have no great appeal for me, but I must say that Opposition Members have been most unhelpful about other forms of correction that we have put forward, in terms of sentencing powers and provisions under the law. Many of our judges, too, live in a different world. Parliament sets the sentences, but the judges often fail to award them. By the time our judges have read medical reports, psychiatric reports, social reports, probation reports, they look at them and, like the hon. Member for Bassetlaw (Mr. Ashton), they say, "Poor devils, never had a chance in life." They do not think about the victim and the victim's family. This is what we are ignoring. It is very hard for a political party which believes in law and order, which fixes the tariff for sentences and the rest, to be undermined in many ways not only by the judiciary but also on many occasions by Opposition Members who do not seem to vote for things that we would wish to put in place to correct the law and order situation. Time and time again we are frustrated. If the new clause were put to the vote, I would not vote for it. As it happens, I am not one of the "hang 'em, flog' em, whip 'em" brigade, but tomorrow I shall be voting for the reintroduction of capital punishment. Let me explain.
Order. I think it might be for the convenience of the House if the hon. Gentleman sought to do that tomorrow.
Let me explain about the matter that we are discussing at the moment. What are we talking about? We are talking about deterrents.
Beating is not a deterrent.
Beating is a deterrent.
How does the hon. Member know?
If I had a whip, I would show the hon. Lady. I am sorry, Mr. Speaker; we are digressing.I think deeply and sincerely about the protection of the citizen. It is the state's duty to protect its citizens. We are not protecting the citizen sufficiently. The proposed new clause is a typical example of the feeling that we have not come to grips with the problem of law and order. People want extreme measures because they are frightened. We are not winning the war on law and order. Try as we will, we are not, and we are getting precious little help, or none at all, from the Opposition. We must work towards stability on law and order. We must not let the criminal get on top of us. We must think more about the victims and the relatives of victims than about the defendant standing in the dock. We must apply the strength of law and order to the criminal as we do in defence. We say that we must be strong on defence. The balance of terror is the strength in defence that has kept peace for 40 years. We must show the same strength and the same tenacity when we deal with criminals otherwise there will be extremisms.
The House is grateful to my hon. Friend the Member for The Wrekin (Mr. Hawksley) for allowing us to debate a matter which has proved to be of considerable interest. Despite the fact that he made a speech which was both eloquent and persuasive and the fact that he was supported by many of my hon. Friends, I cannot commend the new clause to the House. When I adopt that position, I do so both on general grounds of principle and on grounds of detail.I should like first to deal with the general grounds, which are grounds of principle. We must understand the scope of what is proposed in the new clause. It proposes that all courts, including magistrates courts, should, in respect of offenders between the ages 10 and 18, have the power to impose a birching order for a wide range of offences. Leaving aside assault, for which there is a possible argument, the offences are making use
Should those offences attract a birching order? Not since 1847 have justices had the power to impose a birching order in respect of persons over 14; not since 1861 has a higher court had the power to impose a bitching order for offences of the kind now defined in respect of persons under the age of 14. I am very sceptical about a proposal which is designed to reinstate a legal system which went out of fashion in the days of Lord Palmerston, 150 years ago. That is the premise from which I start—extreme scepticism. 6.15 pm Now we come to the question of deterrence. It was right that my hon. Friend the Member for Luton, North (Mr. Carlisle) and my hon. Friend the Member for The Wrekin should concentrate on deterrence. I must tell my hon. Friends that all the examination into this matter that has been undertaken does not disclose any evidence of deterrence; indeed, quite the reverse. For example, the matter was examined by the Cadogan committee in 1938. I quote a summary of that:"of provoking language or behaviour tending to a breach of the peace".
that is, the Cadogan committee—"They"—
Just in case someone thinks that there was something peculiar about the period between 1921 and 1930, let me tell the House of a further analysis that was undertaken in respect of the period between 1941 and 1948. The whole question was considered again in 1960 by the Advisory Council on the Treatment of Offenders. It considered the subsequent convictions of men under 21 who had been convicted between 1941 and 1948 of robbery with violence, armed robbery or robbery in company. Of 704 offenders in this group, 125, or 18 per cent., received corporal punishment; 579, or 82 per cent., did not. The proportion convicted of further offences of violence was 18·4 per cent. for those who had been flogged and 12·4 per cent. for those who had not been flogged."examined the records of 440 men convicted between 1921 and 1930 of robbery with violence, and compared the subsequent records of those who were flogged with the records of those who were not. They concluded that sentences of imprisonment or penal servitude without flogging were no less effective in deterring offenders from subsequent offences of robbery with violence than sentences of imprisonment or penal servitude with flogging. As regards subsequent crimes other than robbery with violence, they found that those who had been flogged, including those without previous convictions of serious crime, had worse subsequent records than those not flogged."
The statistics that my hon. Friend has given related to men under 21. Can he enlighten us on whether there are figures for those under 15? Half the crimes that we have been talking about have been committed by children of that age. My hon. Friend is talking about mature adults. He is also talking about a report relating to the period before 1960. Does he agree that since 1960 the rise in crime has been horrific and that the crimes committed, particularly by youngsters under 15, have been equally horrific?
No. My hon. Friend is over-refining the matter. I have quoted from two authoritative reports made to the House. I say to my hon. Friends, who have spoken about the Isle of Man that during the whole of the 1970s only five juveniles and six adults were flogged there. Between 1973 and 1978 no juvenile was flogged. To try to extrapolate lessons from that is simply not a helpful exercise.I say with no apology that all the evidence shows unequivocally that flogging is not a deterrent for any offence. It would constitute a breach of article 3 of the European convention, and I do not choose to commit a breach of that convention. Furthermore, it would constitute a breach of article 7 of the United Nation: covenant on civil and political rights. Again, I do not cart to advocate such a breach. One thing we must understand on this matter of principle is that people in this country and in this House feel a deep revulsion against the proposal. If we introduce it, I fear that it will bring the whole corpus of criminal law into disrepute. Those are matters of principle, but I have not finished yet as there are matters of detail to consider.
They are all behind the hon. Gentleman.
I am delighted to hear that all my hon. Friends are behind me.I was about to consider the detail, because we cannot ignore detail on such an issue. The idea that there can be a rapid penalty swiftly following the commission of an offence, is an absurdity. Anyone who knows anything about criminal courts will know that weeks, if not months, pass between the commission of the offence and the imposition of a penalty. My hon. Friend the Member for The Wrekin requires in his new clause the presence of a doctor. That understandable, but the entire British Medical Association is against it. In all probability, it would be unethical for a doctor to attend the carrying out of such a penalty. Then there is the question of the police officer. My hon. Friend the Member for Bury St. Edmunds (Sir E. Griffiths) made an important and telling point when ht said that a police officer would not choose to be in any way tarnished with the imposition of such an act. My hon. Friend is right because, as a matter of principle and for long past, the House has been clear about the role of a police officer, who is not involved in the imposition of a penalty. It would be intolerable for the police to have to play such a role in our criminal system. Despite the eloquence of my hon. Friend the Member for The Wrekin and of those who have supported him—and I speak quite as passionately as them—I am against the new clause and I hope that it will not receive a Second reading.
I wish to reply to a few of the points made in the debate. It has been a good debate and I thank you, Mr. Speaker, for allowing it to take place.As I said earlier, I believe that new clause 3 is desirable, although I was interested to hear the comments from the Opposition which I did not find so surprising. However, I wish to pick up one point made by the hon. Member for Bassetlaw (Mr. Ashton) who mentioned "The Monocled Mutineer". I received a report that the author admitted on a BBC Radio 4 programme that the story had been created from his imagination and that it was in the interests of pacifism. That suggests that the evidence from the Opposition is not very strong. The main argument against the new clause has been its wording. I stressed at the start that I drew my wording entirely from the Isle of Man legislation. I accept that if the new clause were accepted in principle it would need amending in another place. The problem raised by my hon. Friend the Minister and my hon. Friend the Member for Bury St. Edmunds (Sir E. Griffiths), concerning police officers and doctors could be corrected. After we discussed the matter, when the BMA made it clear that it would not support such a proposal, I received a string of letters from doctors offering to officiate at such occasions. The important point that we have missed is the matter of principle—whether corporal punishment would be a deterrent. Earlier, I quoted the figures relating to the recidivist rate on the Isle of Man. I believe they confirm that corporal punishment would be a deterrent. I believe that the electorate are looking to us to introduce such a deterrent. They believe that we should think about the victim more than the person who has committed the crime. For that reason, I leave it to the House to decide whether it wishes to agree to the new clause.
The question is, That the clause be read a Second time. As many as are of that opinion say Aye.
Of the contrary No.
I think that the Noes have it.
Question accordingly negatived
On a point of order, Mr. Speaker. I am not sure whether the new clause is being forced to a Division.
Order. The hon. Gentleman knows that I have collected the voices, and my judgment was not challenged in that respect.
New Clause 5
Director's Powers (Insider Dealing)
'(1) The powers of the Director of the Serious Fraud Office under section 2 of this Act shall be exercisable in any case in which it appears to him that there is good reason to do so for the purpose of investigating the affairs or any aspect of the affairs of the futures market.
(2) For the purposes of this section "Futures Market" means any market, the prices of which are published, enabling persons or undertakings to make forward dealings in physical or financial commodities, assets, or currencies.'.— [Mr. Soley.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.We have now reached a serious part of the Bill that deals with fraud. The new clause seeks to deal with insider dealing on the futures market. We hope to close some of the opportunities for fraud that are available in the City of London and other areas of the country. The Bill introduces a new concept—a concept that is welcomed on both sides of the House—of the serious fraud office. A number of Acts designed to deal with insider dealing have not been as effective as they should have been. The Companies Securities (Insider Dealings) Act 1985 and the Financial Services Act 1986 have not dealt fully with insider dealings. A strong view is still held in society that it is easy to get away with major fraud and that, somehow or another, it is allowed to happen and not too much effort is being made to prevent it. The Government have taken a significant step in the right direction by establishing the serious fraud office. However, having listened to the previous debate, I should have thought that every member of the Tory party would support not only the deterrent aspect of punishment for fraud but, more important, the introduction of a major new measure to catch fraudsters, to ensure that they do not get away with what are often millions of pounds worth of money which belong to other people. As has often been said, fraud has become a regressive tax on society, and it takes money out of the pockets of particular individuals and groups. We must consider double standards in this connection. In 1986 there were no fewer than 138,000 prosecutions for fraud against people on supplementary benefit, yet in the City of London in 1984 there were only 77 arrests and only 18 prosecutions. It seems that far greater resources are used to catch people who defraud social security, when a far smaller amount of money is involved, than are used to catch major fraud when the amounts are much greater—running into thousands or millions of pounds on some occasions. There is also some evidence of friction between the police and the Department of Trade and Industry in investigations. I hope that the establishment of the serious fraud office will eventually help to reduce that. We also acknowledge that, in Committee, the Government increased the sentence for fraud from two years to seven years. But an increase in sentence is not a deterrent unless one is caught. Conservative Members mistakenly believe that one can deal with crime by increasing the length of sentences. That is dependent not only on the state of desperation of people who commit crime but on the chances of getting away with crime. The chances of getting away with major fraud crimes are considerable. The Securities and Investments Board and DTI figures show that since 1980 only 110 cases were reported, and of those only nine were prosecuted. They were largely small-fry cases. The purpose of the new clause is to incorporate the futures market. The example that I am about to describe is the one about which I have most evidence, although there are other cases in which there may be similar problems. 6.30 pm The potato futures market is a fairly recent operation. It commenced trading in 1980. It was modelled on the Dutch example. There is a significant and vital difference between the British and Dutch potato futures markets. The Dutch futures market involves totally free enterprise industries whose futures react to natural fluctuations of supply and demand, and they have no central system of state aid affecting trade. But in the United Kingdom potato production is controlled by the potato marketing scheme and the Potato Marketing Board. In effect, the Potato Marketing Board moves on market support, quotas, grading and other matters of that nature. That produces an immediate effect on the futures market. The Potato Marketing Board's process of continually collating statistics from growers, customers, and Customs and Excise and releasing monthly forecasts provides the information on which people can base insider trading. Prior to the monthly information releases, Potato Marketing Board members and staff are in a privileged position. As they prepare the forecasts, they can at once predict how the potato futures market will react, and trade accordingly either on their own accounts or through friends or relatives. On various occasions, there have been press reports of dips or rises in prices immediately prior to the board's monthly statistical releases. The problem is a real one. I shall quote from an article in the 16 September 1982 issue of Big Farm Weekly. That may sound an unlikely name in a Home Affairs debate—it might sound more at home in an agriculture debate—but it underlines the important and serious point. It states:
"Potato Marketing Board members have been accused by traders of insider trading on the potato futures market—which, though not actually illegal in commodity markets, is regarded in commercial circles as a heinous offence.
The simple fact is that Potato Marketing Board members and staff often have access to figures on plantings, supplies and yields well before that information is released to the general public. Obviously it is possible to trade on the basis of this information.
Of all the soft commodity markets operating in this country the potato futures market is unique in that it is the only one where one organisation has a virtual monopoly on supply information.
Insider trading is now illegal in stocks and shares as well as being banned under the Stock Exchange regulations. At the same time all futures market traders have a clause written into their contracts of employment forbidding them to trade for themselves. However, no such restrictions apply to individuals—whether they be in a position of privilege or not—in trading on either the physical commodity or the futures markets.
Futures traders see this lack of constraint—particularly in the potato market— as iniquitous. As one trader succinctly put: 'If I tried trading off my own account and was caught at it I wouldn't even touch the sides of the door on my way out, and I wouldn't be able to get a job with any of the other companies.'
In 1982, an editorial in the Farmers Weekly stated:For their part, the traders fear that the market will lose credibility if insider trading becomes rife, and public knowledge. and they therefore lose business."
In 1982, there was an awareness in agricultural markets and circles that insider trading on futures of this type was a problem. The rumours suggested behaviour which could be construed as illegal, and would certainly have been construed as unacceptable. The editorial in the Farmers Weekly continued:"The potatoe futures market is a well established institution. It is widely used by merchants, processors and farmers to hedge against market movements and, as such, provides extra confidence to those who need to operate long-term contracts. It must, therefore, retain a spotless reputation."
"The hoard's prompt rejection of the current crop of rumours is timely. It will ease minds and cement confidence.
Clearly, at that stage, the Farmers Weekly took the view that, although it was a rumour, the rumour, rather than the issue, was the problem. We now have further evidence that it is more serious than that. Two years later, on 17 February 1984, Farmers Weekly published a news item headed:But perhaps a change in the law, with the extension of the ban on insider trading to include futures markets as well as the stock market, would be the best way to stop rumour mongers in their tracks."
That is a suitable title, one might think, in the circumstances. The article states:"Hunt for 'mole' at Potato Board HQ."
"A telephone call to Farmers Weekly from a since-untraceable potato merchant claiming to have the figures and asking whether the board had issued a comment on them, alerted us to the fact that the figures were in someone's hands.
An inquiry into the futures market proved that at least one floor trader also had the figures and had traded on them.
That floor trader claimed his client had the information by Wednesday morning direct from an inside PMB source.
Even though so-called insider trading is not actually illegal in the commodities market, the leaking of confidential information of that type is regarded by board chiefs as an abuse of a privileged position. Although it might seem unusual, in referring to the futures market in potatoes, we need to recognise that we are talking about a large and lucrative market in which price fluctuations can lead to large gains if one is able effectively to predict prices, in exactly the same way as applies to stocks and shares. The argument that we put to the Government is that insider dealing on the futures market is as important in principle and probably, in certain cases, as important as the amount of money involved, as insider dealing in stocks and shares. That is why we put forward new clause 5 as an important new step in the Bill. An article in the 27 January 1984 issue of Farming News states:While refusing to disclose the name of the client, the futures floor trader said he was a farmer in the Sussex-Hampstead area."
that is, dealing with the prices and the consumption rate between June and November—"The announcement, made by telex"
"detailed a sharp fall in stocks and a rise in consumption, trends which were likely to lead to a rise in the price of potato futures.
Anyone in possession of such price-sensitive information ahead of the official announcement would be in a good position to trade profitably.
The official announcement, made after the close of business the next day, Tuesday January 17, showed an 899,000-tonne fall in stocks and a 20,000-tonne increase in consumption over the same month a year earlier. The following morning, the market reacted to the announcement. Prices soared by more than £9 a tonne and 575 lots totalling 23,000 tonnes of potatoes were traded. That is evidence of a serious abuse of privileged information which could lead to people making significant sums of money in a way which is unacceptable in the normal behaviour of the futures market and those legally involved in it, and, as I have said already, it would be illegal in dealings in stocks and shares on the stock market. The same magazine has a section called "Big Farm Diary", which says:And this, in fact, is what would seem to have happened."
That is a fair point. The article went on:"Potato Board chairman Geoffrey Grantham and his colleagues refuse to be impressed by the argument that they ought to be debarred from trading on the London futures market because their inside knowledge gives them an unfair advantage over others. They challenged critics to produce firm evidence of 'insider' trading by Board members."
Again, Mr. Speaker, I remind you that this is a matter of considerable sums of money involving acts which would be illegal if carried out on the stock exchange in any way. The wording of the new clause will allow the new serious fraud office to investigate on its own initiative. It is a way of legislating to make sure that the futures market, not just in potatoes but in a number of cereals and other areas as well, could be brought under the auspices of the SFO. If the Government are serious in their intentions, as I know they are, to do something about fraud, I hope that they will accept the new clause. It makes no major difference to the Bill's thrust. I have not created a new offence because to do so would have produced problems of bringing it into line with the way in which the Bill is presently worded. The new clause simply makes clear that the SFO can and should investigate such matters because the evidence is that insider trading is taking place on the futures market. That is not just a persistent rumour, which, as I have demonstrated, has been around since 1982, but a considerable suggestion that that activity is not only known about but frowned upon by many people who are themselves involved and do not like such activities. But, more importantly, it is, as I have already said, a criminal offence if carried out in stocks and shares on the stock exchange. It is unacceptable that we should make insider dealing in stocks and shares an illegal, criminal offence of fraud without involving the futures market."Meanwhile, the Board is sticking to its policy of releasing market-sensitive information to all concerned as soon as it comes to hand—so that Board members can't be accused of taking advantage of prior knowledge. Mr. Grantham and his colleagues appear to be satisfied that this is a sufficient answer. At a very friendly PMB lunch for journalists in London last week, some of us among the guests ungraciously raised this sensitive point over the brandy. The urbane Mr. Grantham was no more put out by this than he is by rebellious interventions at this AGM. As he sees it, the Board members who are using the futures market are the ones who have got their buttons on—so why bring in a ruling which would deprive producers of their valuable services?"
I have listened with great interest to the hon. Member for Hammersmith (Mr. Soley). I think he readily understands that the difficulty that lies in the way of our accepting the new clause is precisely, as he said towards the end of his speech, why he is not making insider dealing on the futures market a criminal offence. At the moment, other than securities, the futures market will be regulated when the Financial Services Act 1986 comes into force, but insider dealing is not at this stage a criminal offence.The position of the serious fraud office on the sort of issues that the hon. Gentleman mentioned can be summed up by saying that if they involve serious fraud, the director of the SFO will be able to instigate an investigation, but not otherwise. It is perfectly proper that that should be so, and if the new clause were to be accepted he would be investigating matters that might not be a criminal offence. Obviously, I cannot help the hon. Gentleman with the particular case that he raised, nor would he expect me to, but I understand that the Association of Future Brokers and Dealers hopes to become the recognised self-regulating organisation for investment business in futures and options under the Financial Services Act. Whether insider dealing in other items traded on the futures market should be made a criminal offence is kept under review, but the Department of Trade and Industry considers that the futures market falls more properly within the framework of regulation than the criminal process. It is the key aim of the Financial Services Act to establish a regulatory regime to cover those dealings in futures which are made for investment services purposes or traded on an investment exchange recognised under the Act. The Secretary of State has powers to investigate investment businesses under the Act, and those powers will be brought into force later this year. Therefore, as the hon. Gentleman concedes, we are set on a major effort against fraud. The creation of the SFO and the powers that it has been given under the Bill will be major step forward in that respect. 6.45 pm The hon. Gentleman has created a one-winged aircraft with the new clause. There is no proposal, nor at this stage should there be, to widen the scope of the insider dealing offence to cover the areas that he has in mind. That being so, the director of the SFO would not be serving any useful purpose in mounting an investigation that was not related to a serious or complex fraud, but if a serious or complex fraud were to arise it would be within the powers of the SFO to mount that investigation. However, as I say, these matters are kept under review and there will no doubt be an opportunity to return to them.
If fraud were involved, there could be a prosecution under an applicable provision of the criminal law. The Opposition's point is rather foolish, because there is no specific need to have an SFO to deal with frauds which happen to occur in the context which the Opposition put forward. I was a member of the Financial Services Bill Committee, and although I am sure that all that will be helpful in due course, it does not mean that without it people cannot be prosecuted for fraud.
I hope that I made that point abundantly clear. If there is serious fraud in the futures market, as in any other market, the SFO can investigate. The new clause appears to invite an investigation unrelated to an existing criminal offence. Where there is a criminal offence, as my hon. Friend says, if the director of the SFO considers it to be a serious and complex fraud, he can investigate it.I hope that the hon. Member for Hammersmith does not think that I am giving him the brush-off. I certainly do not intend to do that. However, the only way in which the new clause would work is if a decision were taken to make insider dealing in commodities a criminal offence. As the hon. Gentleman knows, at the moment it is a criminal offence only in relation to company securities under the Company Securities (Insider Dealings) Act 1985. Any further action will have to wait on the need, which does not yet arise, to make a wider provision. At the moment, I would prefer to place my trust in the arrangements that have been entered into under the Financial Services Act. Therefore, I hope that the hon. Gentleman, having given his new clause a considerable airing, will see fit to withdraw it.
I am far from happy to hear the Minister say that he recognises the need for internal regulation but not the need to create a criminal offence. That is undesirable, particularly in view of the evidence that I have produced of a continuing concern within the particular market to which I have been referring over a number of years—five years at least.I recognise that the drafting of the new clause is not perfect, but I would have been much happier if the Minister had said that this is a serious matter, that the Government regard fraud on the stock exchange as a serious matter and that, therefore, insider dealing of this type should also he a serious criminal offence. I come back to what I said in my opening comments about the dangers of the double standards which the Government impose in investigating fraud of one type as compared with another. We know that major efforts are made, and virtually no public expense is spared, to catch those who defraud on supplementary benefit. I make no complaint about the need to deal with such fraud, but it is a gross double standard to put enormous resources into doing that and then to rely on internal regulation to deal with offences which, if committed with stocks and shares, could lead to up to seven years imprisonment under the Bill as it is now drafted and two years under the Bill in its previous form. We should not encourage such a double standard. If we do not vote on the new clause, we shall be sending out a message to the country that, although we consider fraud in relation to such matters as supplementary benefit serious enough to imprison many people for it, we regard this type of fraud—which may involve many thousands, or, in the case of the stock exchange, millions of pounds—as far less serious. We have not thought through the consequences of the legislation to include such matters as the futures market. Unless the Minister is prepared to tell me that he will consider the new clause and come back with a provision in the Bill to make such fraud an offence, we shall ask for a Division.
Question put, That the clause be read a Second time:—
The House divided: Ayes 170, Noes 245.
Division No. 129]
|Adams, Allen (Paisley N)||Duffy, A. E, P.|
|Alton, David||Dunwoody, Hon Mrs G.|
|Archer, Rt Hon Peter||Eadie, Alex|
|Ashdown, Paddy||Eastham. Ken|
|Ashton, Joe||Edwards, Bob (W'h'mpt'n SE)|
|Atkinson, N. (Tottenham)||Fatchett, Derek|
|Banks, Tony (Newham NW)||Faulds, Andrew|
|Barnes, Mrs Rosemary||Fields, T. (L'pool Broad Gn)|
|Beckett, Mrs Margaret||Fisher, Mark|
|Beith, A. J.||Flannery, Martin|
|Bell, Stuart||Foot, Rt Hon Michael|
|Benn, Rt Hon Tony||Forrester, John|
|Bennett, A. (Dent'n & Red'sh)||Foster, Derek|
|Bidwell, Sydney||Foulkes, George|
|Blair, Anthony||Fraser, J. (Norwood)|
|Boothroyd, Miss Betty||Freud, Clement|
|Boyes, Roland||Garrett, W. E.|
|Brown, Gordon (D'f'mline E)||George, Bruce|
|Brown, Hugh D. (Provan)||Godman, Dr Norman|
|Brown, N. (N'c'tle-u-Tyne E)||Golding, Mrs Llin|
|Brown, Ron (E'burgh, Leith)||Gould, Bryan|
|Bruce, Malcolm||Gourlay, Harry|
|Buchan, Norman||Hamilton, James (M'well N)|
|Caborn, Richard||Hamilton, W. W. (Fife Central)|
|Callaghan, Jim (Heyw'd & M)||Hardy, Peter|
|Campbell, Ian||Harrison, Rt Hon Walter|
|Campbell-Savours, Dale||Hart, Rt Hon Dame Judith|
|Carlile, Alexander (Montg'y)||Haynes, Frank|
|Carter-Jones, Lewis||Healey, Rt Hon Denis|
|Clark, Dr David (S Shields)||Heffer, Eric S.|
|Clarke, Thomas||Hogg, N. (C'nauld & Kilsyth)|
|Clay, Robert||Holland, Stuart (Vauxhall)|
|Clelland, David Gordon||Home Robertson, John|
|Clwyd, Mrs Ann||Howarth, George (Knowsley, N)|
|Cocks, Rt Hon M. (Bristol S)||Hoyle, Douglas|
|Conlan, Bernard||Hughes, Robert (Aberdeen N)|
|Cook, Frank (Stockton North)||Hughes, Roy (Newport East)|
|Cook, Robin F. (Livingston)||Hughes, Simon (Southwark)|
|Corbett, Robin||Hume, John|
|Corbyn, Jeremy||Janner, Hon Greville|
|Craigen, J. M.||Jenkins, Rt Hon Roy (Hillh'd)|
|Cunliffe, Lawrence||Jones, Barry (Alyn & Deeside)|
|Davis, Terry (B'ham, H'ge H'l)||Kaufman, Rt Hon Gerald|
|Deakins, Eric||Kennedy, Charles|
|Dewar, Donald||Kirkwood, Archy|
|Dixon, Donald||Lambie, David|
|Dobson, Frank||Lamond, James|
|Dormand, Jack||Leadbitter, Ted|
|Douglas, Dick||Lewis, Terence .(Worsley)|
|Dubs, Alfred||Litherland, Robert|
|Lofthouse, Geoffrey||Rooker, J. W.|
|Loyden, Edward||Rowlands, Ted|
|McCartney, Hugh||Sedgemore, Brian|
|McDonald, Dr Oonagh||Sheerman, Barry|
|McKay, Allen (Penistone)||Sheldon, Rt Hon R.|
|MacKenzie, Rt Hon Gregor||Shields, Mrs Elizabeth|
|McTaggart, Robert||Shore, Rt Hon Peter|
|McWilliam, John||Short, Ms Clare (Ladywood)|
|Madden, Max||Silkin, Rt Hon J.|
|Mallon, Seamus||Skinner, Dennis|
|Marek, Dr John||Smith, C.(Isl'ton S & F'bury)|
|Marshall, David (Shettleston)||Smith, Rt Hon J. (M'ds E)|
|Martin, Michael||Snape, Peter|
|Mason, Rt Hon Roy||Soley, Clive|
|Maynard, Miss Joan||Spearing, Nigel|
|Meacher, Michael||Stott, Roger|
|Meadowcroft, Michael||Straw, Jack|
|Michie, William||Taylor, Matthew|
|Mikardo, Ian||Thomas, Dafydd (Merioneth)|
|Millan, Rt Hon Bruce||Thomas, Dr R. (Carmarthen)|
|Mitchell, Austin (G't Grimsby)||Thompson, J. (Wansbeck)|
|Morris, Rt Hon J. (Aberavon)||Thorne, Stan (Preston)|
|Nellist, David||Tinn, James|
|Oakes, Rt Hon Gordon||Torney, Tom|
|O'Brien, William||Wainwright, R.|
|Park, George||Wallace, James|
|Pendry, Tom||Wardell, Gareth (Gower)|
|Pike, Peter||Wareing, Robert|
|Prescott, John||Weetch, Ken|
|Radice, Giles||White, James|
|Raynsford, Nick||Winnick, David|
|Redmond, Martin||Woodall, Alec|
|Rees, Rt Hon M. (Leeds S)||Young, David (Bolton SE)|
|Richardson, Ms Jo|
|Robertson, George||Tellers for the Ayes:|
|Robinson, G. (Coventry NW)||Mr. Ron Davies and|
|Rogers, Allan||Mr. Sean Hughes.|
|Aitken, Jonathan||Cash, William|
|Alexander, Richard||Chalker, Mrs Lynda|
|Alison, Rt Hon Michael||Channon, Rt Hon Paul|
|Ancram, Michael||Chapman, Sydney|
|Arnold, Tom||Clark, Dr Michael (Rochford)|
|Ashby, David||Clark, Sir W. (Croydon S)|
|Aspinwall, Jack||Cockeram, Eric|
|Atkins, Rt Hon Sir H.||Colvin, Michael|
|Atkinson, David (B'm'th E)||Coombs, Simon|
|Baker, Nicholas (Dorset N)||Cope, John|
|Batiste, Spencer||Couchman, James|
|Beaumont-Dark, Anthony||Cranborne, Viscount|
|Bendall, Vivian||Crouch, David|
|Benyon, William||Currie, Mrs Edwina|
|Bevan, David Gilroy||Dickens, Geoffrey|
|Biffen, Rt Hon John||Dorrell, Stephen|
|Blackburn, John||Douglas-Hamilton, Lord J.|
|Blaker, Rt Hon Sir Peter||Dover, Den|
|Body, Sir Richard||du Cann, Rt Hon Sir Edward|
|Bonsor, Sir Nicholas||Dunn, Robert|
|Boscawen, Hon Robert||Durant, Tony|
|Bottomley, Peter||Dykes, Hugh|
|Bottomley, Mrs Virginia||Eggar, Tim|
|Bowden, A. (Brighton K'to'n)||Emery, Sir Peter|
|Bowden, Gerald (Dulwich)||Evennett, David|
|Boyson, Dr Rhodes||Eyre, Sir Reginald|
|Brandon-Bravo, Martin||Fairbairn, Nicholas|
|Bright, Graham||Fallon, Michael|
|Brinton, Tim||Farr, Sir John|
|Browne, John||Favell, Anthony|
|Bruinvels, Peter||Fookes, Miss Janet|
|Buchanan-Smith, Rt Hon A.||Forman, Nigel|
|Buck, Sir Antony||Forsyth, Michael (Stirling)|
|Budgen, Nick||Fox, Sir Marcus|
|Butcher, John||Franks, Cecil|
|Butler, Rt Hon Sir Adam||Fraser, Peter (Angus East)|
|Butterfill, John||Freeman, Roger|
|Carlisle, John (Luton N)||Fry, Peter|
|Carlisle, Kenneth (Lincoln)||Gardiner, George (Reigate)|
|Carlisle, Rt Hon M. (W'ton S)||Gardner, Sir Edward (Fylde)|
|Carttiss, Michael||Garel-Jones, Tristan|
|Glyn, Dr Alan||McQuarrie, Albert|
|Goodhart, Sir Philip||Madel, David|
|Goodlad, Alastair||Major, John|
|Gorst, John||Malone, Gerald|
|Gow, Ian||Marland, Paul|
|Gower, Sir Raymond||Mather, Sir Carol|
|Grant, Sir Anthony||Maude, Hon Francis|
|Greenway, Harry||Maxwell-Hyslop, Robin|
|Gregory, Conal||Mayhew, Sir Patrick|
|Griffiths, Sir Eldon||Mellor, David|
|Griffiths, Peter (Portsm'th N)||Merchant, Piers|
|Grist, Ian||Meyer, Sir Anthony|
|Ground, Patrick||Miller, Hal (B'grove)|
|Grylls, Michael||Mills, Iain (Meriden)|
|Hamilton, Hon A. (Epsom)||Mills, Sir Peter (West Devon)|
|Hamilton, Neil (Tatton)||Miscampbell, Norman|
|Hampson, Dr Keith||Moate, Roger|
|Hanley, Jeremy||Monro, Sir Hector|
|Hargreaves, Kenneth||Montgomery, Sir Fergus|
|Harvey, Robert||Morrison, Hon C. (Devizes)|
|Haselhurst, Alan||Moynihan, Hon C.|
|Hawkins, Sir Paul (N'folk SW)||Mudd, David|
|Hawksley, Warren||Neale, Gerrard|
|Hayes, J.||Nelson, Anthony|
|Hayhoe, Rt Hon Sir Barney||Nicholls, Patrick|
|Hayward, Robert||Norris, Steven|
|Heathcoat-Amory, David||Onslow, Cranley|
|Heddle, John||Oppenheim, Phillip|
|Henderson, Barry||Oppenheim, Rt Hon Mrs S.|
|Hickmet, Richard||Osborn, Sir John|
|Hicks, Robert||Ottaway, Richard|
|Higgins, Rt Hon Terence L.||Patten, Christopher (Bath)|
|Hill, James||Pawsey, James|
|Hind, Kenneth||Peacock, Mrs Elizabeth|
|Hirst, Michael||Percival, Rt Hon Sir Ian|
|Hogg, Hon Douglas (Gr'th'm)||Porter, Barry|
|Holland, Sir Philip (Gedling)||Portillo, Michael|
|Holt, Richard||Powell, William (Corby)|
|Hordern, Sir Peter||Prentice, Rt Hon Reg|
|Howard, Michael||Price, Sir David|
|Howarth, Alan (Stratf'd-on-A)||Proctor, K. Harvey|
|Howarth, Gerald (Cannock)||Raffan, Keith|
|Howell, Ralph (Norfolk, N)||Raison, Rt Hon Timothy|
|Hubbard-Miles, Peter||Rathbone, Tim|
|Hunter, Andrew||Rees, Rt Hon Peter (Dover)|
|Hurd, Rt Hon Douglas||Renton, Tim|
|Irving, Charles||Rhodes James, Robert|
|Jessel, Toby||Rhys Williams, Sir Brandon|
|Jones, Gwilym (Cardiff N)||Roe, Mrs Marion|
|Jones, Robert (Herts W)||Rossi, Sir Hugh|
|Kellett-Bowman, Mrs Elaine||Rost, Peter|
|Kershaw, Sir Anthony||Ryder, Richard|
|Key, Robert||Sainsbury, Hon Timothy|
|King, Roger (B'ham N'field)||Shepherd, Colin (Hereford)|
|Knight, Greg (Derby N)||Shersby, Michael|
|Knox, David||Silvester, Fred|
|Lamont, Rt Hon Norman||Sims, Roger|
|Lang, Ian||Skeet, Sir Trevor|
|Latham, Michael||Smith, Tim (Beaconsfield)|
|Lawler, Geoffrey||Speed, Keith|
|Lawrence, Ivan||Spencer, Derek|
|Lee, John (Pendle)||Stevens, Lewis (Nuneaton)|
|Leigh, Edward (Gainsbor'gh)||Stewart, Allan (Eastwood)|
|Lennox-Boyd, Hon Mark||Stewart, Andrew (Sherwood)|
|Lester, Jim||Stokes, John|
|Lilley, Peter||Tapsell, Sir Peter|
|Lloyd, Sir Ian (Havant)||Temple-Morris, Peter|
|Lloyd, Peter (Fareham)||Thomas, Rt Hon Peter|
|Lord, Michael||Thurnham, Peter|
|Luce, Rt Hon Richard||Townend, John (Bridlington)|
|Lyell, Nicholas||Trotter, Neville|
|McCrindle, Robert||Viggers, Peter|
|McCurley, Mrs Anna||Wakeham, Rt Hon John|
|Macfarlane, Neil||Walker, Bill (T'side N)|
|MacGregor, Rt Hon John||Waller, Gary|
|MacKay, Andrew (Berkshire)||Watson, John|
|MacKay, John (Argyll & Bute)||Watts, John|
|Maclean, David John||Wells, Sir John (Maidstone)|
|McLoughlin, Patrick||Wheeler, John|
|McNair-Wilson, M. (N'bury)||Whitney, Raymond|
|Winterton, Nicholas||Tellers for the Noes:|
|Wood, Timothy||Mr. Michael Neubert and|
|Yeo, Tim||Mr. David Lightbown.|
Question accordingly negatived.
New Clause 6
Evidence By Children In Relation To Certainoffences
'(1) In any proceedings a video recorded interview with a witness under the age of 14 (other than the accused) shall be admissible as evidence of any fact of which direct oral evidence by him would be admissible as if made under section 38(i) of the Children and Young Persons Act 1933.
This section applies—
(3) In this section "sexual offence" means an offence under the Sexual Offences Act 1956, the Indecency with Children Act 1960, the Sexual Offences Act 1967, section 54 of the Criminal Law Act 1977 or the Protection of Children Act 1978.
(4) The Secretary of State shall make rules to provide—
(5) Before a video recording is used in evidence against any accused person he and or his legal representatives shall have the right to inspect and view it.
(6) Nothing in this section shall affect the right of cross-examination at the hearing by or on behalf of the party against whom the child gives evidence.
(7) Nothing in this section affects the rights of a judge to withdraw the case from the jury, or the duty of the judge to warn the jury of the danger of convicting uncorrobated evidence.
(8) Crown Court rules and rules made in accordance with provision of the Magistrates Court Act 1980 may be made for the purposes of this section;.— [Mrs. Golding.]
Brought up, and read the First time.
I beg to move. That the clause be read a Second time.
With this, it will be convenient to discuss the following: New clause 7—Use of live video links for remand proceedings—
New clause 8— Evidence by children in relation to certain offences by use of live video links—
'(1) A witness under 14 (other than the accused) may give evidence through a live video link in proceedings before a Crown Court on a trial on indictment where the offence is one charged in subsection (2) below. Such evidence may not be given without leave of the court.
(2) This section applies—
(3) In this section—
"sexual offence" means an offence under the Sexual Offences Act 1956, the Indecency with Children Act 1980, the Sexual Offences Act 1967, section 54 of the Criminal Law Act 1977 or the Protection of Children Act 1978.
(4) Where the court consider it necessary it may if it so wishes allow the questioning of the child to be conducted through a fit person other than the prosecution and defence counsel.
(5) The court may only give leave under subsection (1) above if it is satisfied that the video link allows evidence to be given in a way which allows all persons concerned in the case to see, hear and communicate with the witness.'.
In moving new clause 6, I speak on behalf of young children in this country who are, or who have been, subjected to sexual abuse and violence. I speak also for those who are now adults but who have been scarred by the perverted desires of some men and women who abuse small children.Our law has been described as a molesters' charter. Can any of us doubt that, when recent Childline statistics have spoken of up to 700 calls a day from children who need help? They are the young victims of violence and sexual abuse and they need the help of the law. They also need the help of this House. We must listen to them. We must no longer pretend that these young victims can be ignored by the law. It does not bear thinking about that our own children, or grandchildren, might be the victims of child abusers who cannot be brought to trial. Why should we, as Members of Parliament, think that it is any easier for families in our constituencies when they see the law act in this foolish and uncaring way? Yes, we need to consider the accused and to protect their rights, but at what point does the molesters' charter consider the victim— the child? The Bill certainly provides for the use of video evidence, but the Opposition believe that there is an overwhelming need for such an important provision— and the safeguards—to be clearly stated. As the Bill stands, that is not so. To that end, we have tried to take into account, when framing new clauses 6 and 8, all the objections that have been raised. A video recording should he made as soon as practicable after an alleged offence. Nothing should be added; nothing should be omitted; and nothing should be altered. It should be made by a fit person—somebody who is acceptable to the court. Before it is used in evidence, the accused and their legal representatives should have the right to inspect and view the video recording. It would not affect the right to cross-examine at the hearing, or the right of the judge either to withdraw the case from the jury or to warn about uncorroborated evidence. A video recording is not a pre-trial hearing. It is a piece of evidence that is similar to any other evidence, and it is there to be either accepted or rejected by the jury. It is important that the use of a live video link should be understood. The child will be in another room, outside the court, and will be accompanied by somebody w ho is acceptable to the court, such as a court attendant. The child will be able to see only the person who is speaking to him or to her—that is, one person at a time, be it the judge, or defence counsel or prosecution counsel. The child will be unable to see the accused or anybody else in the court who might be able to influence his or her evidence.
The whole country is united in its abhorrence of this type of crime, but may I put a practical point to the hon. Lady that she ought to consider? I say this as one who has experience of the criminal courts in this country.We agree with what the hon. Lady is trying to achieve, but her proposal may result in more acquittals of defendants. Counsel for the defendant would be able to say to the jury at the end of a trial that less weight should be given to the child's evidence because it had not been tested in open court. I think that the hon. Lady should address that difficult problem.
I thank the hon. Gentleman. As I make progress with my speech, I think that he will see that we have considered that problem.With a live video link, everybody in the court would be able to see the child and watch the child's face on the television screen. In video-link evidence, a court may, when it thinks fit under the terms of the new clause, allow the question to be put
That would be useful where very young children are involved who may have great difficulty in communicating. Will video recordings and live video links increase the chance of wrongful convictions? I do not believe that they will. In seeking to find the truth, while protecting a child from undue influence, we are also seeking to guard the accused against wrongful conviction. A growing tide of people are no longer prepared to accept the law as it stands, and want to see it changed on this issue. I have received many telephone calls and letters of support. These have come from such organisations as the National Children's Bureau, the Police Federation, the National Society for the Prevention of Cruelty to Children. the Royal College of Nursing, from doctors, nurses, barristers, teachers, playgroup organisers and many people in all walks of life. Indeed, yesterday I received a telephone call from a group of women in Belfast who told me that they were about to go around the estate to collect a petition. The usefulness of the provision of video recordings cannot be questioned. The Texas police on the BBC programme "Panorama" said that of 235 accused facing video evidence, 221 pleaded guilty after watching the video recording. That meant that 221 children were spared the ordeal of a court appearance and that the offenders could be identified and offered psychiatric help, which is very important when we consider that many of these offenders are often part of the same family. With all this concern, will the Minister give the House some assurance that there will be specific provisions in the Bill about video recording? If he is not prepared to accept the new clause, he should tell the House where the proposals fall short of the Government's requirements. If he will not make provision in the Bill, he should tell the House that the Government are not prepared to help those children who so desperately need our help. New clause 7 deals with the"through a fit person other than the prosecution or defence counsels."
The clause allows further use of the video system and allows it to be more cost-effective, with the saving of police and court time. I hope that the Government will consider the proposals, for which I have received much support from members of the legal profession."Use of live video links for remand proceedings."
As I know that many hon. Members wish to speak in the debate, it might be helpful to the House if I explained the Government's position, so that those who speak subsequently will be able to do so knowing the context in which I believe the proposal should be viewed.I want to begin by congratulating the hon. Member for Newcastle-under-Lyme (Mrs. Golding) on raising these issues, which I believe are of fundamental importance. I very much welcome the opportunity to debate these matters and hope that our discussions will have the widest currency, because I can think of few more useful tasks upon which Parliament can embark than considering this issue. I want to set out what I believe would be the effect of the three new clauses. New clause 6 would allow statements made by a child under the age of 14 in a video-recorded interview to be admitted as evidence of the truth of their contents, where the child is a witness—either as a victim or otherwise—in a trial of a sexual offence or an offence of violence. The right of the accused to cross-examine the child at the trial would not be affected. That is an important point in relation to the matter raised by my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) in his intervention. My hon. Friend was correct to point out that some of the proposals, notably that submitted by Professor Glanville Williams—at least in its first form—appeared to trench on the rights of cross-examination. I am not sure that Professor Williams holds that view any longer. However, new clause 6 does not affect the right of cross-examination, and that must be a major point in its favour. New clause 7 does not relate to children and should properly be dealt with separately. It would allow remand hearings to be conducted by live video link, with the agreement of all parties. I believe that that is a most interesting idea. Plainly, there are technological and resource implications that do not allow me to accept the proposal tonight. However, the difficulties of bringing prisoners from prison to appear in court, could be solved if there was a video link. The time for that idea will come, but, alas, I cannot say that its time is tonight.
The Minister has said that there are resource implications. However, in terms of the Treasury, are there not negative resource implications? The cost of installing the equipment will be gained many times over by the saving in the time of police and prison officers and, in addition, there will be a very important law and order saving because, as the Minister knows, a considerable amount of police time is taken up by police escorts for prisoners on remand.
The right hon. Gentleman is absolutely right to say that there would be what are known in the trade as "offsetting savings". Whether the costs would be totally or partially offset I do not know. Amidst the many other points that we have considered, this is not a point that we have had a chance fully to cost or discuss. It is an interesting idea which, I am sure, in due time cannot be denied. I am afraid that I cannot say that we can accept it this evening. However, I am sure that in due course exploratory work would have to be done.
Will my hon. Friend contact the authorities in Texas? I have seen the video links operating with the consent of both parties in criminal and civil proceedings. That practice saves a lot of money.
I am concerned that our criminal justice system should reflect the advantages that technology can apply. All too often, our criminal justice system appears to many people to be rooted in an altogether older and bygone age, important for some matters of principle but not so important— indeed, regrettable—in respect of some matters of practice. I would have no objection to the proposals in due course, but I must say—I do not mean this rudely— that new clause 7 is perhaps a trifle premature at this stage, although it is well worth airing.New clause 8 reproduces those parts of clause 21 which deal with children's evidence by live video link. It is important that those who did not soldier through the three and a half months of Committee proceedings should understand that the Bill proposes a major innovation, that children should be able to give evidence via a live video link. That is a major step forward. Basically, new clause 8 reproduces clause 21 with the added provision in subsection (4) that the court should be able to
It is not clear whether that would be with or without the agreement of the parties. It would introduce into law a novelty—namely, a person other than counsel for one side or the other. Before making my detailed response, it may be helpful if 1 try to set the discussion in context by describing the real practical evidence that the Government have given of their concern to root out child abuse and ensure that the criminal justice system is responsive to the needs of children. We looked carefully at the Criminal Law Revision Committee's report on the criminal law on sexual offences against children. That revealed no significant gaps, but recommended increases in penalties for certain offences. The Government assisted my hon. Friend the Member for Plymouth, Drake (Miss Fookes) to take through the House of Commons the Sexual Offences Act 1985, which increased the penalties for indecent assault on a young girl from five years to 10 years and for attempted rape from seven years to life. It is worth stressing that in 1985 there were about 300 rapes or attempted rapes of girls aged under 16. I hope that that Act significantly strengthened the ability of the courts to sentence appropriately in those cases. My right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan), when Home Secretary, set out a policy, which my right hon. Friend the present Home Secretary has continued, that those sentenced to life imprisonment for the sexual or sadistic murder of children may expect to serve at least 20 years. I point out, from my experience of handling life sentence cases for three and a half years in the Home Office, that some such offenders were released after 12 or 13 years under the old arrangements. Some such offenders will never be released, and I am confident that that meets with the approval of the whole House. Those sentenced to more than five years for crimes of violence—which include the sexual abuse of children—will not normally be paroled. We must consider also, in due course, the laws of evidence which bear very much on video links. I hope that I am forgiven for pointing out that in the Police and Criminal Evidence Act 1984 important changes were made in the law of evidence to facilitate the routing out before a court of incidents of abuse, many of which take place behind closed doors and within the home and which therefore are some of the most difficult offences to bring to light. Section 80 (3) of the Police and Criminal Evidence Act 1984 makes a wife or husband a compellable witness where the spouse is accused of a sexual or violent offence against someone under 16. Those who love the law of evidence—I cannot claim to be one— know that it has some rather bizarre rules about whether one spouse can be compelled to give evidence against the other. We have entirely removed those rules from the scene. Often, in the case of abuse of a child within the home, the act will be committed by one adult and the only other adult in the home who can give evidence is likely to be the spouse. My hon. Friend the Member for Bury St. Edmunds (Sir E. Griffiths), a battle-hardened veteran of the Standing Committee on that legislation, knows only too well that that was an important, although perhaps not the most commented on, point in the legislation. It is worth pointing out that section 62(10) of the Act provides that, if an arrested person refuses without good cause to permit the police to take an intimate sample—say blood or semen— a court or jury may treat the refusal as corroboration of other evidence against the accused. That is important in relation to child sex abuse. Where the victim is too young to be sworn, his or her evidence must be corroborated, and section 62(10) provides a forensic basis for corroboration in certain cases. The pilot project which the Metropolitan police are running in the London borough of Bexley is designed to ensure that youngsters, when they have a complaint to make about physical or sexual abuse, are taken to and interviewed in a hospital. When children are taken to a police station, they tend to associate that with a suggestion that they have done something wrong. The evidence is then taken by a specially trained person, who may or may not be a police officer. It is videoed to avoid the child having to go through the ordeal of making statements over and over to different people who need to know. That video can be shown— this is relevant to the Texas experience mentioned by my hon. Friend the Member for Stockport (Mr. Favell)— to the accused. The United States experience shows that, where video recordings of the complaint are shown to the accused while he is interviewed, it increases the likelihood of an admission that might prevent the ordeal of court appearances. We have already said—I want to build on this later—that the- Bexley experiment and other police practices are being collated by the chief inspector of constabulary with a view to our reviewing police procedures, with the aim of issuing a circular to chief officers that would mirror the successful circular on the treatment of rape victims which led to many more women being prepared to make complaints of rape. I am afraid that this has led to some lurid headlines in the newspapers which have asserted that the increased willingness of women to complain about rape means a substantially increased incidence of rape during the past few years. I do not believe that that is the case, but we must take it on the chin and try to improve our procedures. That is certainly our aim."allow the questioning of the child to be conducted through a fit person other than the prosecution and defence counsel."
The Bexley experiment is impressive. but I am impatient about how soon we shall get such procedures throughout the country. As the hon. Gentleman knows, the procedures to be recommended in the circular on rape have not been implemented throughout the United Kingdom. When will the circular be issued? How much force can be put behind it? Will it be just a recommendation, or is there some guarantee that such changes will be implemented everywhere?
I cannot give the hon. Lady a precise time scale, for reasons to which I shall come. We want to proceed with it. As the hon. Lady knows, one problem is that there are separate, autonomous police forces., accountable to their own police authority. Many argue, rightly, that that is an advantage, since it prevents the problems that many envisage in the creation of a national police force. But there is a downside to that—change is sometimes slow to come to some parts of the country. That must be accepted. The climate for interviewing rape victims has changed very much since the notorious television series a few years ago—which, paradoxically, did a great deal to wash out one or two practices which were not otherwise known to the public. This is a real step in the right direction.Prevention is a crucial element in all this, because youngsters must be warned of the dangers which they can sometimes face if they accept the blandishments of a stranger to enter his car or to go off with him. That is why we are running a "Stranger Danger" campaign. Its aim is to increase the awareness of children, parents and teachers of the problems of child molestation, to get across a set of simple rules for children to follow and to alert parents and children to the need to ensure that children know and follow those rules. One such scheme was successfully linked with the showing of "Peter Pan". Children who attended the cinema were issued with a document jointly sponsored by the Home Office and Walt Disney Productions on the never-never code, which sought to put across to children in a non-frightening way the points that they need to know for their safety.
I am sorry to interrupt the hon.. Gentleman twice, but I am worried about the "Stranger Danger" education programme. About 80 per cent. of child sex abuse occurs in the home or the neighbourhood where the child lives. If we teach our children that they are in danger only from strangers, we arc not addressing the problem. We are not arming them with the ability to go to someone to complain and to feel confident that they will be cared for. Most children who are abused are terrified about complaining to anyone. That is part of the problem.
Plainly, there are problems with the home., but that would not be a reason for us not acting against the particular problems the child faces from a molester. Some of the most notorious and repugnant cases have involved children being abducted or lured into cars by strangers. We must address all parts of the problem, one of which is certainly the threat from strangers.
I am pleased to hear the Minister's sympathetic response to this social evil. Given that most attackers are men and that most victims of sexual abuse are young girls, does it not make sense to have more women police surgeons examining these victims outwith police stations?
The hon. Gentleman has raised an important point, but I wonder whether—I am not trying to evade this, because it is a significant point—he would bear with me for a few minutes, because that is the final point that I wish to raise. I have much sympathy for it.We have also put into place a wide-ranging system which allows checks to be run on people employed by public authorities who will come into contact with children. This follows the relevation that one child murderer had worked as a baby sitter, notwithstanding the fact that he had a long record of sexual offences. We are closely considering with voluntary bodies extending that system to the voluntary sector. I hope that the House agrees that these are all major steps forward. This allows me to say, as more than an act of piety, that my right hon. Friend the Home Secretary and I are very concerned about the problems of child abuse, not least because, as parents of young children, we know only too well how vulnerable young children are and how utterly monstrous and repugnant— among many monstrous and repugnant offences—offences against children are, whether within the home or outside it. Therefore, we advise the House to accept the live video link as a major step forward, because it must be our aim to try to ensure that a child victim of physical or sexual abuse comes to the end of that dreadful experience when he or she complains to the authorities, and that the dreadful experiences do not continue after the complaint has been made. One of the worst of those experiences is to have to give evidence in a busy courtroom, in the presence of the offender. A child will often find that a wholly intimidating process. It is difficult to see how the system can allow a child to relax while requiring that child to go into such wholly alien surroundings. We hope that a live video link will remove the most acute aspects of that trauma.
If I could finish my point, I shall give way to my hon. and learned Friend later.Several important points of detail remain to be dealt with. Clause 21 provides for the giving of evidence by a live video link. However, I should make it clear that we should like to consult widely about important details. For example, should the judge and counsel be present in the same room as the child, or should they be in the courtroom? Who should be with the child if the judge and counsel are not? Should the child see what is happening in the courtroom? Plainly, as the hon. Member for Newcastle-under-Lyme explained, the jury must see the child. However, does it help or hinder the child's feeling of relative ease to see the court? It is inevitable that any reconstruction of what has happened will be a disturbing experience, but would it make it more or less disturbing for the child to see what is happening in the courtroom, as well as to been by those in the courtroom? We shall need to consult on all those points to ensure that the major advance that is secured by clause 21 works. It is not good enough to legislate on the overview. We must get the detail right. I know that several hon. Members will wish to assist in that process, as will several interest groups outside the House. I now give way to the hon. Member for Burton (Mr. Lawrence), a fine upstanding representative of the legal profession, who will want to welcome this progressive move.
Flattery will get my hon. Friend almost anywhere.I am not opposed to this sensible, interesting and exciting provision. However, the Minister has not yet told us— although he came close to doing so— how this provision will be implemented. It seems that, since it is a novel scheme, we should do what is normally done in such circumstances and run a pilot scheme, a controlled experiment, or series of such experiments, in some parts of the country to see how it works out and the problems that are thrown up. Is that what the Minister has in mind?
Yes, that is certainly what we have in mind. That is partly what I was discussing in dealing with where we go from here. It is not good enough simply to say that we should have live video links: we must ensure that we get the technology and the atmosphere right. That will be advanced by conducting experiments, and we shall do so.I hope that I have not taken an unduly long time to come to the central issue of this new clause, but it is important that we see the proposals in the proper context, which is whether it would be a further improvement if video recordings of interviews with child witnesses were more readily admitted as evidence. I should like to make it clear, as I did in Committee, that it would be wrong to deprive the accused of his right to cross-examine the child in a trial in which a video recording had been admitted. I am sure that we all agree on that. Of course, that would be traumatic. I sympathise with parents who do not like the idea of the child being questioned critically about what happened. However, we would go from one extreme to the other— from an alleged insensitivity to the rights of the complainant, to a certain insensitivity to the rights of the defendant—if we did away with cross-examination. Such cross-examination cannot be carried out other than by the counsel who has been appointed by the defendant to represent his interests. I say that quite firmly because, however much we envisage a well-meaning person interposing himself between the defendant and his lawyers on the one hand and the child on the other, that would dilute the interaction between counsel and child which is a key part of protecting the rights of the accused person— who we must remember is innocent until adjudged guilty. It would be inappropriate for us to fail to recognise that fact. I have yet to be persuaded that such a person exists who could properly carry on the business of asking questions on both sides and do so in such a way as to satisfy us all that justice had properly been done. However, that is not to say that anything goes and that the child should be subjected to brutal cross-examination. I do not believe that many counsel employ such techniques, because that would be wholly counter-productive. I am glad that those hon. Members who are lawyers and have some practical experience know that that is not the case. It is the judge's duty to prevent the bullying of a child. We hope that we would make the child's position easier by putting the child in a room away from the defendant and possibly—this remains to be decided—physically away from counsel also. However, the question whether the video recording should be shown as part of the case remains to be considered. The child could be further examined in chief on that by the prosecution and cross-examined by the defence, all via the live video recording. I have considerable sympathy with that idea, because I can see advantages for the child and for the jury who have to decide the issue. The would have the opportunity to see the child's first full coherent attempt to explain exactly what he or she had been subjected to. A video showing the child's responses would be a telling document to put before those with the difficult task of unravelling the truth and deciding upon an issue of guilt or innocence which has severe consequences for both sides. We must face up to the difficulty of whether we can be sufficiently sure of our ground in making such a change now. We already have to confront the difficulty, on which opinion is seriously divided, whether there is a role for an amicus figure who would interpose himself between counsel and child to ask questions. There is also the question whether the use of a recording advances or derogates from the efficient transaction of court business, and whether it is an assistance or detriment to the child. Those are not issues on which we are entitled to plunge in on our own value judgements. Indeed, it has been suggested that the prospect of wider cross-examination because of the availability of the video could be detrimental to the child. It is possible that that could yield more fruits for cross-examination than if the child recounted the evidence live, via the video link, that very day. In that case, it might be a mixed blessing. The dominant consideration in experiments such as the one at Bexley is to reduce the formality of interviews, to help the child come to terms with the situation and, sometimes, to provide a basis for intervention by social workers rather than criminal proceedings. If everyone knew that the recording was to be a key document at any future trial, it would be difficult to resist a tendency for the interview to become more rather than less formal. Those genuine issues need to be addressed. I am extremely well disposed to this proposal, but it would be wrong for us simply to change the law now without consulting all the interest groups. The Law Society and the Criminal Bar Association, whose assistance has been properly prayed in aid by Labour Members on other parts of the Bill, have expressed the gravest reservations about the impact of such proposals on the right to cross-examine and on the retention of the oral tradition. Indeed, Labour Members often prayed in aid the retention of the oral tradition in relation to other parts of the Bill, and I make no criticism of that. There should be an examination, the details of which my right hon. Friend the Home Secretary will want to give a little later because they are bound up with some other matters that I shall turn to. Having secured the live video link—we must not overlook that major step—there should be proper consideration coupled with proper consultation, with some research evidence base, to see whether what seems to be a good idea can be shown to be such. I hope we can see how it would work in practice and, perhaps, has worked in other jurisdictions. That should be done, not to kick the ball into the river from which it will take years to fish out, but as a tightly disciplined exercise which will enable the results to be available within a sensible time span—it is significant that during the dinner hour we have such a well-attended House to discuss these issues—and will enable the House to return to the issue. We will then have a proper factual base on which to make a properly considered decision, having, rightly, consulted those who have a right to make their views known to us before we legislate. That would be a proper way of recognising the strength of the case and is in no sense an escape from the responsibility of making a decision.
As I did not serve on this Committee but have been worried about the matter and been unable to reach an easy conclusion, I welcome what my hon. Friend said. It is common knowledge that many tape recordings are made of initial interviews of children who have been sexually abused. For the experiment and reference work to be done properly, those consulted will need to be able to look at some of those recordings before they form a judgment. Will they be eligible to do that, or will the police recordings be excluded from examination?
That is a good point and further illustrates the details that cannot be avoided in providing us with a basis on which to make sensible progress. I hope that those recordings can be made available because, plainly, they are at the heart of the matter. I cannot answer conclusively, but I hope that they will be available on the basis that they will not be published but will be used to inform consideration by people of experience.Several elements of child abuse need further consideration within a properly disciplined time span to enable early decisions to be taken. There is the question of the manner in which complaints are dealt with. I welcome and do not resent this debate, because I appeared on "Childwatch" to challenge one of the more stuffy old cobwebs of the law's approach to children. One of the most depressing aspects of the programme was the evidence of several doctors about the way in which medical examinations are carried out on children—the very point raised by the hon. Member for Greenock and Port Glasgow (Dr. Godman). The ordeal of giving an account of events and of being physically examined must not be worse or more humiliating for the child than the ordeal of having been sexually assaulted and brutalised in the first place. To pick up the point of the hon. Member for Birmingham Ladywood (Ms. Short), there is a case for sending messages by circular to the police about how these things should be dealt with. There is a case for considering how the various agencies involved in the investigations of these matters conduct themselves. That would involve not only the police but doctors and social workers. Many complaints lead not to court but to social work action. We want to explore more technically precisely what can be done to improve the present position and to discover how inadequate it is. At present, most evidence and information is anecdotal.
I am pleased to hear what the Minister is saying about the examination of children in such cases. Does he agree that the medical examination of a child who has been abused could form part of the healing process, if the medical examination is conducted properly by those who are appropriately trained? Does he further agree that, as part of the healing process, a genital examination should always form part of a wider medical examination?
I certainly agree with that, but as I found during my work on drugs, what I think about clinical matters does not matter much; what matters is the duty under which doctors regard themselves. They tend to respond to the views of their colleagues and to certain appropriate medical directions. At the heart of the exercise would be an exploration of whether the medical profession would want to consider in more detail the way in which these examinations are carried out.There is room for further exploration of the video link and the appropriateness of using video recordings; there is room for exploration of the way in which a complaint is handled by the authorities, whether by the police, doctors or social workers; and there is room for a close examination of the way in which the rules of evidence bear on child witnesses, particularly whether the present rules of corroboration are appropriate and whether it is appropriate for a child to give sworn evidence. It is particularly important that we take up the compelling strand of medical evidence that a child is less likely than an adult to invent an account of a sexual experience which is otherwise beyond the child's knowledge. The question is whether that can be established sufficiently as part of a medical consensus to make the present basis on which the laws of evidence are founded factually inappropriate. There is room for further exploration. My right hon. Friend the Home Secretary proposes to make an announcement soon setting out the precise details of the way these examinations should be conducted. I hope that the proposals can go forward in a non-partisan way. There is concern on both sides of the House and my views have been greatly assisted by the points made orally and in writing to me during the passage of the Bill. I hope that what I have said will satisfy the hon. Member for Ladywood and her colleagues that we are not fobbing them off or kicking the ball into the river. A great deal has been done, but more remains to be done. We will be better able to do that which remains to be done when we have cleared the thicket of facts, circumstances and consultations, and carried out our legitimate legislative function, after proper consideration has been given to very weighty matters.
I support the new clause. Clauses 17 and 21 are welcome advances on current practice. I believe that no child should be medically examined in a police cell. The practice of children being examined in police stations must cease forthwith. A focused medical examination, where gentle treatment is required, should form part and parcel of a wider medical examination of a child. As I said earlier to the Minister, a medical examination of a child in those circumstances can form part of the healing process.It is deeply regrettable, even disgraceful, as the Scots have sent me here, that the Criminal Justice (Scotland) Bill contains no similar provision. That Bill was debated in Edinburgh last Monday. I informed the Solicitor General that I would table two new clauses that would be similar to clauses 17 and 21 of this Bill. Remembering that we have children's hearings in Scotland, these new clauses may be more appropriate, with certain changes, for the courts in Scotland. New clause 6 is, I believe, more radical than clause 17, even though that clause allows a judge to admit a video recorded interview as admissible evidence. New clause 6 will encourage such an interview to be conducted as soon as possible after the offence has taken place, although I acknowledge that many horrible incidents often do not come to light for weeks or months. The police officers and social workers are doing fine work in the experiment in Bexley. I have met the social workers and police officers involved in this most useful and human approach to the difficult task of interviewing a child in dreadful and deeply distressing circumstances. New clause 8 is more radical in approach than clause 21. The present practice of submitting children to cross-examination in the sombre surroundings of a courtroom is disgraceful and, in today's climate, indefensible. The antique formality and arcane lawyer's language of those proceedings must prove to be for many children a harrowing experience. Child witnesses or victims should be cross-examined in informal surroundings—similar in some respects to the children's hearings in Scotland, although many of those cases proceed to the sheriff court or even to the High Court. Every Crown court in England and every sheriff court in Scotland should have a children's room, where such a cross-examination could take place in much less foreboding and disturbing surroundings than in a courtroom. In a recent case in a sheriff court in the east of Scotland, an advocate, representing a teacher who, it was alleged, had sexually assaulted a eight-year-old boy, shouted at that boy in the witness box. The manner and behaviour of that advocate was so disgraceful that the sheriff was quite right to adjourn the proceedings for five minutes to allow the advocate to calm down. That disgraceful incident involved the bullying of a eight-year-old child by a lawyer. Our aim must be to make the examination of a child as compassionate and sensitive as possible. Although I may be persuaded or dissuaded on this matter, I believe that the judge, prosecuting council and defence agent should be in the room with the child. They should be informally attired and should sit at the table with the child, rather like in our children's hearings, which have in attendance the reporter to the children's panel, three members of the panel, the child, his or her parents, and the social worker. The child should be accompanied by an adult, perhaps by a social worker who is independent of the case. There should also be what we in Scotland call, in our children's hearings, a befriender, someone who can calm down the child. The accused, the jury, the press and the public can watch the proceedings on a large monitoring screen in the courtroom. The press and the public do not need to be present. In the High Court, at the trial of a serious charge of sexual abuse, 35 to 50 people can be present. In Scotland the judge has the right to clear the courtroom of certain people. Nevertheless, the jury of 15 is still present, as are officials and others. That is not the solution. The answer is to cross-examine the child in informal surroundings. Every Crown court building should have a children's room for the examination of children in the most informal circumstances. I believe that these new clauses push off—as do clauses 17 and 21—into an era of more compassionate and sympathetic examination of children caught up in these crimes. Compassion and sympathy must be shown from the first moment that a child reports such an offence to a teacher, school attendance officer or health visitor. That sympathetic approach to the child must not stop once the case goes to court. The video presentation or closed circuit television network mentioned in the new clause should be part of a more humane approach to the examination of children. I next ask the Minister about women police surgeons. Most victims are young girls. Most perpetrators of these attacks are men. Most examinations should be conducted by women doctors who have had the appropriate training. These examinations should not take place in a police station. One case that was brought to my attention recently was of a child being examined in a police station in a room that had had a sticky label, with the title "Medical Room", attached to the door. That is a disgraceful state of affairs. Children should be examined by appropriately qualified doctors in hospitals. That is why I say that we need an increase in the number of women police surgeons. Clauses 17 and 21, or more appropriately these new clauses, take us much further down the road to compassionate investigation of a child involved in a case of sexual abuse.
I warmly support the proposals embodied in new clause 6. Had it not been for my absence from the House last week with a Select Committee, I would have been happy to add my name to it. I congratulate the hon. Member for Newcastle-under-Lyme (Mrs. Golding) on the manner in which she has handled this issue both in Committee and outside. She has shown the vigour and enthusiasm for a cause which we learnt to expect from her predecessor, although she has not yet demonstrated his prolixity.I have had experience as a magistrate in a juvenile court. I voice the support of the National Society for the Prevention of Cruelty to Children, which is naturally anxious about this. I serve on its central executive committee, as does the hon. Member for Wentworth (Mr. Hardy), who wishes to be associated with my remarks. It has long been possible to produce a record of events in writing, and, with the development of technology, it is now possible to have a record of events in sound. A further development now makes it possible to have a video recording. If a written and a sound recording are acceptable in a court, why not a video recording? After all, the principle has been started upon in this very building, by having a live television link. If a live television link is acceptable, it is not such a great step to have a recording of TV proceedings.
There is, of course, a substantial difference. One can cross-examine live the police officer who is putting before the court a tape-recorded interview, but what we are discussing here is not being able to cross-examine live.
I think that my hon. Friend the Minister made it clear that that is exactly what could happen in subsequent proceedings. A video recording would simply be another form of evidence. I thought that was clear from what my hon. Friend had said. One point that he did not clarify, and on which the hon. Member for Greenock and Port Glasgow (Dr. Godman) touched, has been put to me—that under clauses 13, 14 and 15, video recordings would be admissible as a document. He used the expression "document" in referring to video recordings.
My hon. Friend is right. Video recordings would be a document and would be admissible, but the way in which clause 16 is phrased is such that the judge would be likely to rule in favour of admissibility only in exceptional circumstances. It would be possible, if we were to make progress with this, in due course to change the presumption, which at the moment is against admissibility.
I am grateful for that intervention. It strengthens the desirability of a specific legislative proposal to cover the idea that we are discussing. Child abuse is a serious and growing problem, as is demonstrated by the number of children who have taken advantage of Childline, which was set up a few months ago. Therefore, it is important that we should not only obtain convictions of those guilty of child abuse but do all that we can to reduce its incidence, in particular by dealing with cases as promptly as possible.If evidence comes to light suggesting that there has been a case of child abuse, many week may elapse between the defendant being arrested and charged and the matter being aired in court. It may be that by that stage the parents of the child who has been the victim may simply not be willing to allow that child to appear, for very understandable reasons. They do not want the child to have to go through the trauma of appearing in court, whether it be with a video link or in the court itself. In that case, a conviction would be most unlikely. Even with the live television link, the problem is that, because of the long time that has elapsed between the events that are the subject of the hearing and the hearing itself, the child's memory is bound to be dim. At that age, children have short memories. They are also more impressionable, and it may be that the child has been schooled to tell a particular story. Inevitably, whatever it says, it will carry that much less weight and make it less likely that a conviction may be secured. If, as soon as possible after the discovery of a possible abuse, the child victim can be interviewed face to face, not with a television link, by an experienced person, in neutral surroundings and with the aid perhaps of models or pictures, surely that video can be extremely useful in court proceedings. Indeed, if all that interview has been videoed, it may make court proceedings unnecessary. As the hon. Member for Newcastle-under-Lyme said, experience elsewhere suggests that whatever the initial protests of the defendant, faced with a video along the lines that I have described, he will confess. The great advantage then is that he can be dealt with forthwith, whatever may be the appropriate form for dealing with him, which may he a question of punishment or treatment. The important thing is that that can be undertaken straight away without a lengthy wait and court proceedings. If we have to wait for the court proceedings to take place, the video of such an interview can surely offer to the court important and valuable evidence to which it can give appropriate weight. I appreciate that the whole question whether there should be subsequent cross-examination comes into the matter. My hon. Friend the Minister will be aware of the considerable work done by Professor Glanville Williams, to whom my hon. Friend referred, and to Mr. J. R. Spencer, in his sector. I do not wish to protract the proceedings on the new clause by going into their arguments in detail, but they seem to me to be formidable. I am glad to know that my hon. Friend is sympathetic to the case. I understand that there may be shortcomings in this clause as drafted. However, I am a little concerned that nothing may be done at all. I take the liberty of reminding my hon. Friend the Minister that in Committee he said:
This is an opportunity. I listened carefully to what my hon. Friend said about taking a careful look at this, and his promise that we shall shortly have a more detailed statement on what form that will take. He suggested that the House could return to the issue. I was not clear what sort of time span there would be. Before long, presumably, this Bill will become law, and other events may intervene. One would like to think that something could be done on this front. Therefore, before the Bill completes its passage, I wonder whether my hon. Friend might consider including in it some general provisions which would allow my right hon. Friend the Home Secretary to make suitable regulations and take appropriate steps to implement the general principle of what we are trying to support without necessarily going into details at this stage. Having said that, I thank my hon. Friend for the sympathetic reception that he has given to the new clause and hope that he will take on board the suggestion that I have made."Legislative opportunities do not arise every year."—[Official Report. Standing Committee F; 12 March 1987, c. 1066.]
I agree with the hon. Member for Chislehurst (Mr. Sims). Obviously, the Minister's remarks about promising to review all of this and to move forward urgently are welcome, but we are left with a worry about the time scale and the exact nature and terms of reference of the review. He referred to a statement that is to be made by the Home Secretary. That means that we are responding to his arguments without all the information that we ought to have in front of us. Like the hon. Member for Chislehurst, I wonder whether it is possible to put some amendment into the Bill that could be used after the review has taken place rather than wait for the next appropriate Bill to amend the law. In that way we could make progress in this area.The evidence of the scale of the problem in this country is quite horrifying and terrifying. The research evidence is that at least 10 per cent. of all children are sexually abused, half of them when under the age of 10 years. There have been studies in various countries, including the United States, but this evidence has been accumulated in Britain by asking adults about what happened to them in the past. So if the problem is getting worse, as suggested by the NSPCC and so on, it might be even worse than that. The perpetrators are almost without exception males, although occasionally there are colluding wives or cohabitees. But it is a male problem; it is men that do it to children. This part of our sexual culture—the way that men behave sexually—is shocking and horrifying. Two thirds of the victims are girls and one third are boys; and 80 per cent. of the abuse takes place in the family or in the neighbourhood where the child lives. This is the most shocking thing of all. Virtually every woman with whom I have ever discussed this issue has had some experience in her childhood, be it a flasher or some bloke at a cinema trying to put his hand on her knee. But that is something quite different from living in a family where it is going on all the time and the child cannot turn to the people who are supposed to look after it to get protection. That is a much more serious problem. When we discuss these matters we talk as though it is the odd man, a stranger; we talk as though that is the nature of the problem and that is how it has to be dealt with. Unfortunately, it is not. There are horrific cases of abuse that hit the headlines, but 80 per cent. of it is repeated abuse within the family or in the neighbourhood in which the child lives. It is also clear that such abuse in childhood is enormously damaging throughout life. I have been approached recently by some very impressive women who are working in therapy in this area in Birmingham. They talk about groups for adult women who were abused as children and are still bruised and emotionally upset; it is still affecting their whole attitude to life, their emotions and their relationships with their husbands and children. They have never had any help or assistance over a period of 20 years or more, and they are still in a damaged state because of that. The reason is that there are not enough facilities for that kind of help. We know that much abuse goes undetected and unprosecuted. In this review—I do not know how wide it will be—the question of the education of those who deal with children in detecting the signs of abuse is very important. In the past—and Freud was partly to blame for this—it was often put down to child fantasy. Freud suggested that children fantasised about these matters, and much of the education of nursery nurses, teachers and so on indicated that that was so. But all the current evidence is that it is not so. As the Minister said, when children talk about these matters, they are more likely to be telling the truth than are adults even, because they can only get experience of these matters through being abused in the ways they allege. We really must look at the training of all individuals who deal with young children so that when children complain they are believed. Part of the problem is that children complain and are not believed. 8.15 pm The Minister referred to the Bexley experiment. Like everyone else, I am extremely impressed by that but I am impatient to see it extended throughout the country. Just a week ago, when I was in the bar one evening, a stranger who was visiting the House approached me and told me what happened to his daughter, a four-year-old girl, who had been abused by a neighbour. The first time she told her father he did not believe her; the second time he did. He rang the NSPCC, not knowing what to do, and was told that he should report the matter to the police. He went along to the police station with his daughter. A policeman in uniform interviewed her and she started to cry and said, "Daddy, what have I done wrong?", and she would not speak. It went on, and she had to have a medical examination. The father asked if her own doctor could conduct the examination, but was told that that was impossible. So the medical examination took place. The child cried, she was hurt, and she said that was what was done to her by the neighbour. It was obviously a continuation of the distress: what the doctor did that hurt was what the man next door had done. A few weeks later the child had to go to her doctor with an ordinary chest infection. She would not go in, and became hysterical. That is evidence of how much it distressed her to be medically examined in that way. The outcome of the case was that the police said that there was insufficient evidence. No prosecution has been brought, the father feels deeply aggrieved and the neighbour is still living next door. The father is unemployed and cannot afford to move house. When he said to the police that if that was it he might deal with the matter himself by some kind of violent attack on the neighbour, he was told that if he did that he would be prosecuted. I tell that story because I feel that it is typical of what is taking place throughout this land. Children are being hurt by the investigation that is supposed to assist in bringing about a prosecution—and that is not as crude a form of abuse as sometimes takes place. When one considers the damage that the experience of the police station and the medical examination does to children, one is tempted to conclude that in some cases it is better not to prosecute. I am told by those advising me that that is absolutely wrong. One of the problems for children who have been subjected to continuing abuse is that they blame themselves and think there is something wrong with them, something impure. The experts say that prosecution is very important to the child, so that it may have a sense that society is on its side, and very important to the perpetrator so that he may have a sense that this sort of thing is going to be stopped. There are families, my experts in Birmingham tell me, in which abuse has gone through generations—men who have abused their children have gone on to abuse their grandchildren. It is unbelievable, but they are aware of those patterns, and they are serious workers in this area; they are not just making wild allegations. So prosecution is extremely important, as is the promise of the review, but it is not the whole of it. Detection is part of it and so is therapy. Some of the children who have been abused do not even know that they are entitled to control their own body and tell people that they are not allowed to touch them and use them in this way. Small children who have been abused do not have our conventional understanding of what they are entitled to do sexually, because they grow up in households in which they learn from adults that this kind of treatment of children is normal. Part of the therapy when such practices are discovered is to re-educate the child about its own emotional behaviour. For example, where abuse is detected, one finds children being taken into care and blaming themselves because they are the ones who are taken out of the family as though they have done something wrong. Then they are put with foster parents, where there is sometimes evidence of their being abused. That is partly because of the way in which children who have been constantly abused behave. When they are being friendly they often behave in a sexually active way, and this seems to trigger continuing abuse. All these questions must be looked at. We need more prosecutions, we need to look at the nature of the evidence, video links, and so on, but we must also look at training —so that abuse is detected and children are protected—and at the facilities for therapy throughout the country, so that children who have been damaged can be helped to overcome the effects of the abuse that they have suffered. I agree with the Minister that these matters are so important that we should not deal with them in a party political way. However, we are entitled to be impatient. I hope that before the end of today the Minister will give us some indication of the time scale of the review and what views he has on the sort of legislative vehicle he envisages for any changes he wishes to make. Perhaps he should go back to the suggestion made by his hon. Friend the Member for Chislehurst—that some amendments should be put into the Bill, perhaps in another place, in broad enough terms to be triggered later so that, once the review has taken place, there will not be another long delay before an appropriate Bill comes along.
I was delighted to hear the Minister refer to the Bexley experiment, because there is no doubt that when children have been sexually abused, their first recollections are very important. By the time the child comes to the remand hearing, the committal proceedings and then the Crown court, that child has filled its head with so many things in between and its memory can be hazy and so cause problems in cross-examination. Therefore, it will be valuable if a child makes a statement and it is recorded at the first opportunity. I hope also that that recording could be shown to the child again so that he or she can recall what was said before going into each of the court hearings. That would be important.Such a system works very well in Texas. Indeed, the sheriff of Dallas who visited the House of Commons had words with me. He gave me lots of useful information. For instance, in America, certainly in Texas, when children are nine years old they can give evidence and be sworn and believed just as an adult but if a child is under nine he has to go in front of a competency panel. That is a group of eminent people who ask the child questions such as, "Do you get smacked when you arc naughty? Do you tell the truth? Are you good?" In the end, they give the child a certificate of competency. Once a child has that certificate, even if it is under nine years old, it can go into court and be believed in the same way as an adult. Parents in this country feel most strongly that the law and our court proceedings are loaded heavily in favour of the sex abuser and against the child. It is hard for the child to be believed. In fact, judges will place great stress on telling members of the jury that it is unsafe to convict on the uncorroborated evidence of a child. Of course that is right; we do not want innocent people to be prosecuted. However, we do not want a charter for the child abuser. On most occasions, the child abuser commits the offence not in public but in private. There is seldom an audience. Sometimes they let themselves down by involving more than one child, but often when the child complains or the offence is found out by the parents, or the child has to go to the doctor with some medical problem, it is too late even for forensic corroboration, and things are very difficult. I have received on my desk many cases involving children's homes where the children are mentally disabled and people are certainly abusing them but the Director of Public Prosecutions is unable to act in spite of the fact that he, the police and the Attorney-General know very well that those things are happening. I am encouraged to hear the Minister speak about the Bexley experiment. However, I agree with the hon. Member for Birmingham, Ladywood (Ms. Short) that we are impatient because children are being abused all the time. The quicker we get safety valves in place so that the system is not loaded against the child and the parents of a child have a chance to bring someone to court and obtain a conviction, the better. There is no doubt that child abuse is growing in this country, but parents are much more willing now to allow their children to testify. They feel that if they do not allow the child to go through the terrible experience of testifying, the man or woman—the hon. Member for Ladywood is correct, it is mostly men—will strike again and the problem will be pushed on elsewhere. In America, where the initial videos are shown to the defence, as they would have to be, the defendant sits there with his lawyer and watches the film. Sometimes it is remorse that makes him plead guilty and sometimes it is the fact that he does not want the video shown in open court. On other occasions he can see that the evidence is strong or it might be part of a plea bargain where he feels that if he spares the child any further embarrassment the judge will be more lenient with the sentence. That is sometimes the case. I am not a lawyer and I think that plea bargaining has its place to save the child that traumatic experience. I speak simply as a parent and trustee of Childwatch. The Government have been making rapid strides. They have reviewed the child care law, published inquiries into the sad deaths in cases of child abuse—we have learned from the lessons—and put the names of those who have been warned or convicted of child offences on a central computer so that there can be a blackball system when someone seeks employment to work with children. Those are all marvellous things that the Government have been doing, and I applaud them; I do not attack them. I should like to place on record my thanks to the Home Office and the departments within the Home Office for following up the many cases that I keep sending to it. I should also like to thank the Attorney-General. They have been very helpful and a strength to me in my campaigns. I think that the Opposition's new clauses are right. I should like to see those things. However, it seems from what the Minister has said that it is a little premature, because we have the experiments and we want to get it right. It is a shame that we have to start our own pilot schemes when there is so much evidence in other countries on which we could draw. However, that is probably due to the volume of work within the Department, the problem of getting it right and the pressure from our legal friends who are obviously guarding their preserves. The Home Secretary has to deal with all those things. I want to be fair, and I say to the Opposition that I agree with what they have said. I am sure that the Lords will have something to say on the new clauses. I have great sympathy with them, but I am satisfied with the answers that the Minister has given. However, I urge him and his Department to deliver the goods quickly. A general election will not make any difference, because this is an all-party issue. We are not fighting each other on protecting children in this honourable House; we are united. I am sure that the Home Office will continue to deliver the goods so that we can protect children, so that the child is heard more readily, so that the scales are not loaded in favour of the abuser but a balance is restored on behalf of the victim. There should be justice, so that people are not acquitted simply because of the way in which our legal system operates. Therefore, I support the Bill as it stands but the new clauses are marvellous and I am sure that in a short time they will be part of our legislation.
I rise, not to guard my preserve, but to guard the preserve of everybody in this country who wants to see that justice is done. I congratulate the Government on bringing forward clause 21 as an attempt to deal with a substantial modern evil.The video link is such a significant and revolutionary proposal that everybody will think it is a good idea in principle. However, we must take great care before its details are put in train because of the very real possibility, if we are not careful, not only that innocent people might be convicted—it sometimes happens that innocent people are accused in our courts, even of sexual offences against children—but that the guilty will more easily go free. That is why I do not see much merit in new clause 8, because the
may not be fit enough in experience and practice to ask the child the right questions, either for the prosecution or for the defence. 8.30 pm New clause 6 seems to offer an alternative to the live television link. It is difficult to conceive that the interview would be videoed or the child would give its evidence live via a television link. Of the two possibilities, it is obviously better for the child to give evidence live by the television link. The other should be relegated to an alternative, to be used if there is no live television link in certain circumstances upon which the court may subsequently decide."fit person other than the prosecution and defence counsel"
I want to put the hon. and learned Gentleman right, as I am afraid that he is confused about the use of video recording and the live video link. The video recording is a presentation of a piece of evidence that is recorded before—often well before—the case comes to court. The video link provides the facility within the court to cross-examine a child, if need be.
There is a possibility that the child could be interviewed in chief on a television link. That would make the video recording of what had been said earlier redundant. That possibility should be considered. If the video interview is to be used only as evidence in chief and the child is then wheeled in for cross-examination, I doubt whether the marrying-up would be a successful procedure.
My hon. and learned Friend, who is one of my most clear-headed colleagues from the legal profession, has shown how necessary it is to explore the ground further to see how we stand. As I understand it, the video link provision would permit examination in chief and cross-examination via the video link in circumstances to be determined. The case for video recording in no way depends on whether the live video link is available. Rather, it depends on whether there is some advantage in a system that allows the child's first account of what happened to be given to the authorities in the form of a video recording, and whether that would be a valuable document that could be shown to a jury and would assist it to determine the truth or otherwise of that account. The child would then be available, via the live video link, for further examination in chief and cross-examination, should that be necessary. The matter that we must consider further is the balance of advantage of allowing a video that is taken in such circumstances to be admitted.
I am grateful to my hon. Friend for making the position clear. It shows that there are many variants of the use of video links that have to be considered with great care.I agree with what has been said about children being good witnesses in court—my experience confirms that. They do not seem to he over-intimidated by circumstances in court into forgetting their complaints. The courts have been most considerate to children: judges usually take off their wigs, and sometimes their gowns, and ask council to do likewise. The usual forbidding formality of the court is reduced so that children can give evidence in more informal and friendly surroundings, and my experience is that they give it well. The greatest problem in many cases might be the child's identification of the offender. That is unlikely to be admissible, as part of the evidence in a case, on a video link. It is inconceivable that children would produce evidence of identification at an identification parade. That may be another complication. That apart, the problem does not seem to be quite as severe, because it is not as traumatic for the child to recount afterwards what happened as to identify the offender, if he is a stranger. If it is possible for the defence counsel to say to the jury, "Of course, if you had seen this child and been able to judge its demeanour in court as it was asked questions by both sides, that would have been better than seeing it on television"—
The impression that the hon. Lady might give when seen on television being questioned by an interviewer or an audience might sometimes be misleading. The only way to remove all the misleading factors that sometimes obtain on television is to have the viewer present. That is why it would he desirable, if it were not otherwise undesirable, to have the child in court. If the child's absence makes it more likely that an accused person will get the benefit of the doubt and be acquitted, even though he is guilty, that would be counter-productive. Therefore, the quality of the television must be excellent.At present, defence solicitors and counsel say to an accused person in these circumstances, "You must realise that if you are guilty and are found guilty, and have caused a little child to go into court to give this kind of evidence, you will receive no mercy whatever from the judge." That constitutes a great deal of proper pressure on an accused person who is guilty to plead guilty and avoid what might be the worst consequences of trying to brazen it out and force a child into the witness box to give evidence. If it becomes easier for an accused person to plead not guilty and see how matters develop on television, the measure may be counter-productive. I do not want that to happen. That is another reason for considering the matter with care, lest someone who is guilty finds it easier to be acquitted under the television system than under the present one. According to clause 21 and new clause 6, the television link cannot be used without the leave of the court. Defense counsel might say that he did not want the television link, and the judge might say that he overruled him, and wished to keep it. If there is a television link and the man is convicted, there could be an appeal. If someone who was otherwise guilty and would have been convicted was acquitted on appeal because he had not had a fair trial, as the wishes of his counsel had not been observed by the judge, who gave his leave for a television link instead of refusing it, that, too, would be counter-productive. The Lord Chief Justice will have to lay down careful guidelines on the way in which a judge at a Crown court deals with these video links—
and circulate them to Crown court judges, so that they can follow and abide by carefully worked-out procedures.There are dangers in this procedure, but I do not think that they outweigh the very real advantages. If they do not, we will strike a significant blow against the child abuser. Because there are dangers, there must be care. Every detail must be properly worked out so that nothing goes wrong. Although I should like to see this matter concluded as quickly as possible, I do not think that it would he right for my right hon. Friend to skip over any of these problems in order to put the matter immediately or very speedily into action. I hope that my remarks have not been too lengthy.
May I say how much I welcome the Minister's remarks on new clause 7? We welcome the comment that perhaps one day its provisions will come to fruition. I welcome also what the Minister said on new clause 8 about the live video link. Perhaps when he looks at the proposal in new clause 8, when he considers additions to clause 21, he will see how excellent new clause 8 is.On new clause 6, while I welcome some of the things that the Minister said, I cannot see that there are any real difficulties with the new clause. It has been gone through most carefully to get rid of many of the objections raised in the House, and although I understand that the Minister needs to consult the legal profession—perhaps it is the main stumbling block in his mind—other professions have put their weight behind the new clause. The nursing profession, the National Children's Bureau, the National Society for the Prevention of Cruelty to Children, the Police Federation—many people—have already considered these things and said that this provision needs to be made now. I hope that when the Home Secretary makes his statement to the House he will ensure that it is something that can happen in this Bill and not have to be carried over for yet another Bill. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 9
'The following shall be substituted for section 12(1) (a) of the Juries Act 1974 (as amended by the Criminal Law Act 1977)—
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.The new clause seeks to maintain the right of peremptory challenge of up to three jurors for each defendant in a criminal trial. In the Bill the Government are seeking to remove that existing right of peremptory challenge. This is one of the most important changes in the Bill. In Committee, we made it clear that Opposition Members regard it as an unacceptable change. We wish to retain the right of peremptory challenge, so we have tabled this new clause. It is very important to maintain peremptory challenge to ensure not only the fairness of jury trial but also the perception of that fairness by those who stand trial in front of a jury. In Committee, the Home Secretary set out in some detail his arguments for seeking to remove all right of peremptory challenge. I went back to those proceedings today in preparing these remarks and found that his arguments seemed to centre round two specific points. 8.45 pm The first was that the right hon. Gentleman saw the right of peremptory challenge as giving what he called "a substantial tilt" in favour of the defendant in court proceedings. His second argument was that peremptory challenge was a derogation from the random principle which ought to exist in the selection of juries. Both arguments are faulty. The evidence does not substantiate the case that peremptory challenge gives a substantial tilt in favour of the defendant. The Government themselves set up the Crown prosecution service survey of peremptory challenge and the published results of that survey are now available. That survey, set up and published by the Government, says:
The evidence of the survey is absolutely crystal clear. There is no tilt in favour of the defendant where peremptory challenge is exercised. The Home Secretary himself admitted later in Committee that, as he said,"In both single-defendant and multi-defendant trials, the use of challenges does not appear associated with a lower likelihood of conviction. Over half (60 per cent.) of all trials in which one or more peremptory challenges were used ended with convictions on one or more counts. This is slightly higher than the conviction rate of 53 per cent. in trials in which no challenges were used."
He also said:"Not much can be built on the statistics in the only form in which we could provide them".
He is saying, in effect, that the statistical evidence shows the impact of peremptory challenge to be relatively neutral when it comes to securing a conviction. The conclusion must therefore be that there is no substantial tilt in favour of the defendant, the evidence for this coming from the Government's own figures and survey. Let us just look at the other argument of the Home Secretary—the importance of the random principle. To say that the random principle must be maintained and can only be distorted by the use of peremptory challenge assumes that the system of jury selection is perfectly random at present. It is not. First, there is the use of limited areas for drawing jurors from the electoral lists; then there are further restrictions in drawing names from simply some particular pages of the electoral lists. The composition of jurors ends up far from a random reflection of society at large. Substantial evidence was also revealed by the research of Baldwin and McConville. The evidence was adduced at considerable length by my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) in Committee, but it bears reiteration because it is very important. They discovered that only 28 of 3,912—that is, 0·7 per cent—of jurors in Birmingham were of West Indian or Asian origin. That is not a random reflection of the population of Birmingham. One would almost certainly have expected the figure to be 15 or 20 times as great if it were to be a random reflection. They noted a similar, although slightly less marked, disparity in the use of jurors of Irish origin. They also found that 72·5 per cent. of jurors were male, whereas the percentage of males in the 1976 household survey was 49·7. As if to reinforce that point in the Baldwin and McConville survey, there is the example of the Bristol riot trial, in which all the defendants were black and the judge advised the defence during the initial court proceedings to use the right of peremptory challenge to obtain a more racially balanced jury. When that advice comes from a judge, it must surely lead us to question whether the system is perfectly random. To remove the possibility of a safety valve that can correct some of the imbalances which may on occasions occur in the production of juries is, we believe, to go in the wrong direction. The use of peremptory challenge helps to adjust in favour of balance where an ultimately nonrandom and imperfect system has not operated to produce balance. Those seem to be the two principal reasons that the Home Secretary was advocating for the Government's decision to move for the abolition of the right of peremptory challenge. However, there are several reasons, in addition to the arguments against the Home Secretary's points, which can and must be made to reject the Government's case. There are two particularly over-whelming reasons which were made by the Government themselves in the White Paper "Criminal Justice", published in March of last year, which started the process which germinated into the Bill which we are discussing today. In paragraph 35 of the White Paper, the Government said:"they do not show anything the other way".—[Official Report, Standing Committee F, 3 March 1987; c. 840.]
There are two important points there. The first is the likelihood of an increased and perverse use of challenge for cause. If the right of peremptory challenge is removed, there is likely to be a much more frequent and much more obstructive use of challenge for cause. I do not think that that would necessarily be in the interests of the proceedings of the court or of the feelings and dignity of jurors. One point which has been made is that a juror, if peremptorily challenged, may feel aggrieved. I believe a juror is far more likely to feel aggrieved if he has been challenged for cause than if he has been challenged peremptorily. The likelihood of an increase in challenge for cause is one reason which must be borne in mind and which leads us to wish to retain some degree of peremptory challenge. The other major reason—in some ways the most important reason of all—is the crucial importance of the need for the defendant to have confidence in the fairness of the system. One of the pillars of our system of justice is that the defendant must feel that he has been given the fullest possible chance to have a fair trial. If no peremptory challenge is open to him, we have removed what is in many ways a vital safety valve to enable him at least to feel that he has had the opportunity to secure a completely fair and balanced jury. It is a very important point about the perception of the system by those who are accused, be they innocent or guilty but particularly when they are innocent. That above all leads the Opposition to say that peremptory challenge must stay. Therefore, we hope that the House will vote for the new clause."The problem is whether that result can be achieved without either leaving defendants with an understandable sense of grievance or opening up challenge for cause to an unseemly and disturbing degree."
Speaking in the debate on another new clause, my hon. Friend the Minister said that it was the duty of the Government to legislate only after proper and due consideration of a matter. Indeed, in the context in which he was speaking, he was also talking about there being a preliminary trial of the evidence obtained by the use of a video. That is a sentiment which I wholeheartedly applaud.The proposition put forward is that the jury system should be changed radically without any evidence to support it. It is said that the jury system is not random and is not representative. Of course, statistically that could never be so when a jury was selected. That has been well set out by the hon. Member for Islington, South and Finsbury (Mr. Smith). He also stressed something with which I, as a lawyer of considerable experience in defence as well as in prosecution agree: the importance of a fair trial and the feeling of a defendant that he has had a fair trial. That is fundamental to our system of justice. Why is that so important? If a defendant has a sense of injustice, he will never be satisfied with the result of his trial. If he is sent to prison—and we seem to be sending more people to prison than any other nation—it is important that when he is in prison he should feel that he had a fair trial with an opportunity to be fully represented and to express himself. One has only to think why that is so important. We have one prison officer to every 10 or 20 prisoners. If a prisoner is unhappy, he will not be very manageable in prison. He will have a sense of injustice and a tremendous chip on his shoulder. Undoubtedly, in terms of pure cost, it will mean a higher proportion of prison officers to prisoners. It is important that a prisoner should feel that he has had a fair crack of the whip. 9 pm Not only is jury selection not random, but on the many juries that I have encountered, out of 15 jurors, 12, 13 or 14 are women. I have no objection to women serving on a jury. It is important that they should be on juries. One has only to walk around the streets to find that women comprise 50 per cent. of the population. One cannot say that random selection is necessarily representative. The hon. Member for Islington, South and Finsbury drew attention to the statistics in Birmingham, where only 0–7 per cent. of black people perform jury service, whereas the percentage should be higher. A defendant from the middle of Brixton will not be happy if he sees 15 white people from Acacia avenue. He will not feel that e is getting a fair trial. He will think, "Those people do not understand my position, the sort of problems that I have, or the sort of pressures that I have been under." He will not feel that he will have a fair trial. Likewise, if a young male person stands trial by a jury with 12 or 15 middle-aged ladies on it, he will think that they will not understand young people, their problems and the things that they do and feel. He will not feel that such a jury is representative. I do not believe that by having two black people, by challenge, on a jury, one is any more likely to be acquitted. I do not think for a moment that if one has a few more males, a few more females, or younger people on a jury, one will get an acquittal. Indeed, the statistics show that one will not. However, the defendant will feel that he will have a fairer trial and a more representative jury. It is far better to have a trial heard by what amounts to a representative jury. The right to peremptory challenge is often used merely to keep a better balance on a jury. The statistics show that such challenges do not give defendants an unfair advantage. The whole argument started because the Home Secretary said they give defendants an unfair advantage. Of course, statistics now show that when there is a challenge, a defendant is slightly more likely to be convicted. It is said that it is to protect defendants that this measure is being put forward, and that it will be more helpful to defendants. We have no statistics or evidence. The only argument that we have had has been based on a hunch. Hon. Members continue to hear phrases such as, "I feel," "I think," "people say," "some judges think," and we have even heard, "the Lord Chief Justice thinks." We are trying to change the evidential practice of centuries. In evidential terms, a thought or a hunch amounts to zero. Adding hunches to thoughts amounts to nothing. One has no evidence upon which to change the practice of centuries. I am sure that, after proper consideration, most people would feel that the jury system should not be changed on the basis of a hunch, thought or feeling. A change should be based on evidence. The judicial system is good, and the jury system is delicate. It is not to be lightly overthrown or changed. It needs to be changed on the basis of hard facts and evidence. All the hard facts and evidence point to a need not to change the jury system. The matter started when my hon. Friend the Member for Twickenham (Mr. Jessel) rather sensationalised the Cyprus secrets trial. I am bound to say that he was not alone. Many people at that time were looking round for a scapegoat for what was a sensational acquittal. Many of us felt that that acquittal showed the maturity of the British system of justice. I cannot think of any other country in the world where allegedly confessed traitors would have been acquitted. That spoke of the maturity and independence of our judicial system. However, the Bill speaks of immaturity, not maturity. It speaks of rushing into something without thinking; of acting on the spur of the moment on the basis of the sensationalisation of the secrets trial when one was really looking for a scapegoat. In that case, a solicitor tried to sell confidential material to the papers, in breach of all ethics. We have in that case an anecdote of a most dishonest and disreputable member of the legal profession.
No one has ever denied it.
Apparently, part of that anecdote is that one person said that he wanted one sort of jury, a second another sort of jury, and the third, a distinguished lawyer, said, "What the devil, we cannot choose our jury anyway."My hon. Friend the Member for Twickenham says that no one has denied it—
No one has.
but he will appreciate—if he does not, I am telling him now—that any decent member of the legal profession, any barrister, could not speak even now to deny, affirm or anything else what went on in that conversation. He could not do that.
Is not the irony of this that all of us who have earned our crust at the criminal bar have challenged jurors in the hope that we may obtain a jury that is advantageous to our point of view, but usually it does not work out that way? The extraordinary mystery of the jury system is that juries act against what we, as defenders, believe to be our interests.
Yes, I could not agree more. One cannot go into how a jury reaches a decision. That, as my hon. Friend rightly says, is the marvellous mystery of a jury, and long may it last.
I agree with everything that the hon. Gentleman has said so far, but is he mindful of the fact that, when talking about manipulation or alleged manipulation in the Cyprus spy trial, all the jurors who tried the case, whether there were challenges or not, had been vetted by the prosecution to ensure that they were suitable for such a case?
I understand that to have been the case. Certainly that was reported in the press to be the case. However, I was not at the trial. I know no more than what I have read in the press and what has been said in the House.Some people say that the secrets trial was a multiple trial and that in multiple trials the right to challenge should be limited. However, one should recognise that multiple trials are at the behest of the prosecution which puts together a number of people. In law, each individual is being tried individually. Technically, all the defendants are put together in one trial as a convenience. To impose such a limitation would be a complete breach of that principle. My right hon. Friend the Home Secretary said that challenges for cause were acceptable and allowable. Such challenges for cause are limited. The question is asked of the judge and many, if not most, challenges are not allowed. Much has been made in respect of peremptory challenges and much has been said of the fact that we should have challenges for cause. One point that arises for the practising advocate is that most barristers are aware that jurors attend trials willingly. We all know that they give up their homes and their jobs to perform a public duty. A random selection process can throw up jurors who are, to say the least, illiterate. As trials become more and more complex, many documents are involved. An experienced advocate is always quick to detect a juror who cannot read, or who appears to be illiterate, and challenges. I know that my right hon. Friend the Home Secretary will say that that is simply a challenge for cause, but it is important that most advocates should feel that they are not putting a juror through the degrading experience of having his shortcomings exposed to the entire court. Such a juror always starts by saying that he has left his glasses behind, or that he cannot read from that distance, and asks for the oath to be read to him. When there is a pile of documents, if a peremptory challenge is made, the juror will not feel that he has been picked on specifically or that his shortcomings have been exposed; yet he will be out of the trial, and it can quickly be established that the next juror can read.
I have listened to my hon. Friend and to other learned counsel who are present this evening. As they all appear to agree that the challenge is completely hit and miss, why on earth should we keep it?
I hope that I have been saying that it is not.
It is hit and miss; that is the advantage of it.
First, I was talking about a way of obtaining what appears to be a fair and balanced jury. My second point is not hit and miss. Peremptory challenge is often used as a polite way of challenging for cause without offending someone who, for example, cannot read. I am sure that few advocates have not done that time and again.It is as necessary for the prosecution to stand jurors by—in other words, to challenge them—as it is for the defence. That applies to what might appear to be peremptory challenges. Justice must be seen to be done, and be seen to be even-handed. Without that, we have no justice. If the prosecution can challenge without cause, the defence must have the balancing right. Not to give that right would violate the very principles raised by my hon. Friend the Under-Secretary of State when he spoke in support of the European convention on human rights, which insists that the prosecution and the defence should have equal rights. As I have said, my experience runs contrary to my right hon. Friend's hunches. However, it coincides entirely with his research. Challenges do not alter a jury to make it convict or acquit, but they can alter a jury to make it more representative. They make all parties in the court happy with the trial and more prepared to accept a conviction because it follows a fair trial. If a single piece of evidence can be adduced to rebut what I have said, I shall reconsider my decision to vote in favour of the new clause.
The Home Secretary has what appears to be a personal determination to get rid of the right of peremptory challenge. In my view, that determination is based on myth. The Home Secretary appears to regard the right of peremptory challenge as a Trojan horse invading the jury system and leading to an abuse of jury trials—through abuse of the peremptory challenge itself—and to an unfair advantage in favour of the defendant. However, as the debate on this issue has continued over the months, that Trojan horse has been shown to be no more than the Home Secretary's hobby horse. We considered this matter in detail in Committee, and I spoke at length on it. You will be comforted to know, Mr. Speaker, that I do not intend to speak tonight at great length on the matter. However, I wish to reiterate a few points which, I suggest, are important.9.15 pm It has been suggested in recent years, particularly in relation to the Cyprus spy trial, that there has been abuse of the right of peremptory challenge, but no evidence whatsoever has been produced to justify that allegation. At most, there has been a little bit of anecdote about what happened between counsel in the robing room during the Cyprus spy trial. But neither the hon. Member for Twickenham (Mr. Jessel). nor anybody else, other than those members of the bar, knows what happened. The most one can say is that it appears that at that trial there was some discussion between counsel as to how the right of peremptory challenge should be exercised. That discussion was completely proper. It happens in many cases, and it is right that it should happen. It is a proper, and sometimes an important, part of the duty of counsel. The allegation that in some way the use of peremptory challenge gave an unfair advantage to a defendant has been thoroughly laid to rest by the Crown prosecution service survey, to which the hon. Member for Islington, South and Finsbury (Mr. Smith) adverted a little while ago. We know that the Government enthusiastically expected that the CPS survey would show that if jurors were peremptorily challenged at a trial, the defendant was more likely to be acquitted. In fact, the CPS survey showed the opposite. Putting it at its highest, there is no evidence whatsoever that peremptory challenge gives any advantage at all to the defence. My next point is a very serious one. If we remove the right of peremptory challenge so that all jury challenges by the defence have to be challenges for cause, we shall open up a hornet's nest of practical problems that will beset the courts for years to come. I shall give a few general examples of situations in which peremptory challenges are sometimes used. The first is the kind of case to which the hon. Member for Leicestershire, North-West (Mr. Ashby) referred— the apparently illiterate juror. I agree with him that experienced counsel can tell very quickly whether a juror appears to be illiterate. If the right to peremptory challenge is exercised, all that the defence counsel has to say is, "Challenge." The juror leaves the jury box; there is no embarrassment, and he does not know why he has been challenged. The judge usually refers very simply to the right to challenge and to the fact that it has been exercised and says that the next person should step forward. It is all over within a matter of seconds. If, however, defence counsel had to challenge for cause on the ground that the juror was illiterate but the prosecution did not agree that the juror was illiterate, or the juror did not agree that he or she was illiterate, the juror would know what was being alleged on behalf of the defendant and might regard that as an insulting allegation. A test may have to be applied as to whether a person is illiterate. In a fraud case, for example, it would be absurd to have an illiterate person on the jury, because there would be many documents to examine. What tests will be applied? Will there be reading or arithmetical tests? If at the end of the day the judge decides, having considered the matter, that the juror is literate and therefore should be on the jury, how can the defendant expect a fair trial from that juror? What will be the effect on the rest of the jury if that juror turns out to be the strongest character among the 12?
Is the hon. and learned Gentleman in favour of the American system, in which each juror is cross-examined independently before a decision is made by the defence counsel as to whether that juror should appear on the jury? That is what the hon. and learned Gentleman appears to be advocating.
Not at all. The hon. Gentleman has riot been listening. I am simply warning the House that if peremptory challenge is removed that very American system which he and I both dread so much will develop. He has hit the nail on the head. I do not know why the Home Secretary finds this such a funny subject. Right through the Committee stage he wore the same grin as he is wearing tonight. I doubt whether the Home Secretary has ever seen a jury trial through in his life. It would be interesting to hear if he had.As those of us in practice know, it sometimes happens that among the waiting jury there is a person who appears to be asleep, labile, frivolous, apparently drunk or apparently drugged. In those circumstances, responsible defence counsel would again use that one word "challenge" and that would be the end of the matter. What happens if he has to challenge for cause? He will have to stand up and say to the judge, "Challenge for cause. That juror, in my opinion, is drunk or drugged." What will happen then? There will be a debate in front of the juror in question. The judge must decide the issue in the presence of the juror. If he finds that the defence counsel, albeit acting in good faith, was wrong and the juror was not drunk, drugged, labile, frivolous or sleeping, what effect will that challenge have on the defendant's prospects of a fair trial? In my submission, those prospects could be very severely damaged. Another example, and one that was not raised in Committee, relates to trials in Wales, including those in my constituency. As the House will know, a substantial proportion of people in Wales speak Welsh as their first language. It is very easy to tell when a jury is being sworn in Wales whether a juror is more comfortable in Welsh or English. That is a very small practical problem that is solved by experienced counsel, because there is an alternative oath. The Welsh version is printed on the back of the English version. Therefore, as soon as the juror stands up to take the oath, as long as the counsel can see the language on the back of the jury card, he knows in which language the juror will take the oath, and so can challenge before the oath is taken. Quite understandably, many defendants in Wales, people who are not standing trial for offences with any kind of political overtones, simply feel more comfortable in their native Welsh language and wish to be tried by people who understand that language. Although in some courts in Wales there are simultaneous translations— a system which works well—that practice is not followed in all courts. Defendants are often interviewed by the police in the Welsh language because, fortunately, many officers speak Welsh. The nuance, inflexion and emphasis of the Welsh word may be very difficult to identify for an English-speaking jury. All those of us who have practised in Wales have experienced that from time to time. What will happen? Will counsel have to stand up and say to the judge, "Challenge, your Honour, because that juror does not speak Welsh."? Will we then have a Welsh language test to distinguish between learners like myself, who in those circumstances might or might not be allowed on the jury, and fluent Welsh speakers, who would be allowed on the jury? What standards will be applied by the courts? If the judge decides that the juror should remain on the jury, that decision could have a devastating affect on the defendant on whose behalf the challenge had been mounted. If the House goes down the road proposed by the Government— I notice with some pleasure that this is opposed by a substantial number of Conservative Members—we will introduce into our law a dangerous area of dispute, debate and complexity. I believe that about 600 Crown courts sit on any given day. Will there be 300 or 600 different practices? Even 15 different practices in this important matter of challenge for cause would do a grave disservice to the reputation of our criminal justice system. Our present system may not be very logical, but sometimes the best things are not very logical. This system has stood the test of time. It makes defendants feel that they have had a fair trial, although, as we know from the evidence, the use of the peremptory challenge does not really affect the outcome of the trial. There is something about our system of jury challenge, which I know from talking to people from abroad who have watched our courts, that people at first find surprising, but when they have seen it operate find very acceptable and praiseworthy.
I think that we all admire the ingenuity of the hon. Member for Islington, South and Finsbury (Mr. Smith) in securing this debate. I understood that, if one tabled an amendment on Report which just said, "Leave out clause 86", it would not be called. What one now does is table a new clause repeating what would have been in clause 86 and, happily, it is called. I am delighted that it has been. I say to my right hon. Friend the Home Secretary, in case he gets the wrong impression, that not all the lawyers in this House disagree with what he is doing. I support his intention to accept the Roskill committee's recommendation to get rid of the right of peremptory challenge.I disagree totally with one point made by the hon. and learned Member for Montgomery (Mr. Carlile), which was expressed differently by my hon. Friend the Member for Twickenham (Mr. Jessel). The hon. and learned Gentleman described the spy trial as an abuse of the system of peremptory challenge. So long as the right of peremptory challenge exists, it is the responsibility and duty of defence counsel, if they consider that it is in their client's interest, to use it. I do not believe that there was any abuse in that case.
One of the mysteries of this system is that all of us have used the right of peremptory challenge to try to rig juries in our favour but, more often than not, it does not work that way. Although we believe that we have done a great service for our client, more often than not we have not.
The delight of my hon. Friend is the honesty of the language that he uses. As he said, he has attempted to use the peremptory challenge to rig juries in favour of those whom he has represented.
It would not be an abuse.
It would not be an abuse. It is the duty of defence counsel, so long as that power exists, to use it in what he believes are in the interests of his client. The question is: should it exist?
It does not work.
I shall come to that point.Frankly, I do not believe that it should exist. I am a strong believer in the jury system. I believe that it means trial by 12 of one's fellow citizens, chosen at random, and that it should not be the right of the defence to "rig"—to use the word of my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen)— a jury to assist his case. The fact is that, totally properly and rightly, especially in multi-handed cases, clear efforts are made by the use of peremptory challenge to achieve a jury that the defence rightly or wrongly believes— I concede to my hon. Friend the Member for Wolverhampton, South-West that the defence may do so wrongly—to be more likely to give a verdict in its favour. That is not what the jury system is about. If one is to defend that system and the vital importance of the right for trail by a jury of 12 of one's fellow citizens, one must accept that they should be 12 of one's fellow citizens who are chosen at random, and that there should be no power to attempt to manipulate the jury in favour of the defence.
Would my right hon. and learned Friend accept a jury of 12 men, or an all-female jury? Does he think that that would be a reasonable random selection?
One must accept that the right to challenge for cause can be removed. I see no reason why one should not argue that it is wrong to have a jury of one sex trying a particular case and put to the judge the argument that there should be someone of the other sex on that case.I have never claimed to be an amateur psychiatrist, nor do I believe that one is employed as a barrister to act as a psychiatrist. As my hon. Friend the Member for Wolverhampton, South-West has said, one is often wrong when one challenges. The existence of that right is largely archaic. Therefore, I support what the Government are trying to do. As we want to get on with all the other matters in this debate, I have made the point that I wanted to make and have tried to do so succinctly. I hope that the House will support my right hon. Friend the Home Secretary in the view that he has taken.