Previous Section Back to Table of Contents Lords Hansard Home Page



Page 43, line 46, after ("sample") insert (", print or impression").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 48, as amended, agreed to.

Clause 49 agreed to.

Clause 50 [Jurisdiction of district court in relation to statutory offences]:

Lord Rodger of Earlsferry moved Amendment No. 135:


Page 44, line 30, after ("court") insert (", as respects any statutory offence,").

The noble and learned Lord said: This is a minor drafting amendment. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 50 shall stand part of the Bill?

Lord Macaulay of Bragar: I have given an indication that I would oppose the Question that Clause 50 stand part of the Bill. I ask these questions for information purposes. It is rather a stark clause. I wonder whether one or other of the Ministers can explain to the Committee what the end result of the particular clause will be. For example, statutory offences are of importance to the individuals involved. Does this clause envisage the gradual shifting down of important matters to a lower level within the court structure?

I should also like to know what the impact will be on the legal aid scheme once this matter is through. Will legal aid be available to all persons affected by this provision? What does the Minister believe that the ultimate costs of that will be to the legal aid scheme? I appreciate that these matters are being raised at short notice and that I have not given notice of them, but I think that it may be of interest to practitioners in the courts at least to have a general picture of the objective behind the clause.

Lord Rodger of Earlsferry: It might be helpful if I explain the thinking behind the clause. It is related to Clause 51, which follows it. As noble Lords who have studied the matter will be aware, the power of the procurator fiscal to make a conditional offer of a fixed penalty is defined in Section 56 of the Criminal Justice

16 Jan 1995 : Column 503

(Scotland) Act 1987 by reference to offences which may be tried in the district courts. It is in order to provide an increased range of offences in relation to which the procurator fiscal may, in appropriate circumstances, grant or make an offer of a fixed penalty that the matter has been put in this way. As I have said, the provisions are defined by reference to the district courts.

The clause provides that, except so far as any enactment otherwise provides, a district court shall be competent to try any statutory offence which is triable summarily, subject to the proviso that the sentencing power of the district courts is not increased. The fact remains that the Crown will be able in appropriate cases to put such a case to the district courts under any statute, but will do so only where the Crown considers that it would be appropriate for that offence to receive only such a sentence as can be imposed by the district courts.

More significantly—or in a wider context—the provisions will allow the procurator fiscal (again where all the circumstances make it appropriate) to make an offer of a fixed penalty in minor cases involving a wider range of statutory offences. It is for that reason that the clause has been introduced. I am not aware that it will have any effect on the legal aid position. It is certainly not driven by any such consideration. There is no intention to drive cases down into the district courts. I have sought to explain the thinking behind the clause to the Committee and that it will still be appropriate to decide by reference to the gravity of any offence which is the most appropriate forum in which to try it.

Lord Macaulay of Bragar: I am obliged to the Lord Advocate for that explanation. Like a number of people, I am becoming concerned about the extension of fiscal fines and whether that involves a diminution of the quality of justice. I wonder whether people are not being driven into a court where they will be offered a fiscal fine where, no doubt, solicitors will not be involved in the consideration of such cases. That seems to involve not only a diminution in the quality of justice, but also in the advice that might be proffered to people who are charged with offences that are serious to them. Such people are then faced with the temptation either of paying £50 in the form of a fixed penalty with no conviction or of taking advice when a lawyer might say, "You have a good defence". I am a little concerned about that and we shall watch developments with interest. In the meantime, I withdraw my Motion.

Clause 50, as amended, agreed to.

Clause 51 [Conditional offer of fixed penalty by procurator fiscal]:

Lord Rodger of Earlsferry moved Amendment No. 136:


Page 44, line 41, after second (""the"") insert ("in the second place where it occurs").

The noble and learned Lord said: In speaking to Amendment No. 136, I should like to speak also to Amendment No. 137, which provides that procurators fiscal may make a conditional offer of a fiscal fine to cover more than one offence. It often happens that a report by the police contains evidence of the commission of more than one minor offence arising out of the same incident. The amendment would avoid the

16 Jan 1995 : Column 504

need to make several conditional offers requiring the accused to pay several separate small fines by instalment at the same time. I beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 137:


Page 44, line 42, at end insert:
("( ) After subsection (3) there shall be inserted the following subsection—
"(3A) A conditional offer may be made in respect of more than one relevant offence and shall, in such a case, state the amount of the appropriate fixed penalty for all the offences in respect of which it is made.".").

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 138:


Page 45, line 14, at end insert:
("(7B) There shall be no fixed penalty without conviction for those penalised as a result of violence or threats of violence against women and/or their children.").

The noble Lord said: The amendment is of some significance. As I mentioned in relation to an earlier amendment, there is some concern at the dilution of the legal system and that an easy financial way out of a proper justice system is being looked for. The amendment relates purely to charges of violence or threats of violence against women and/or their children. It refers to what is broadly recognised as being domestic violence. Such behaviour, as we all know, carries with it on many occasions considerable physical, psychological and social distress, with consequences for wives, partners and children.

The amendment is put down to serve notice so that the husband or partner who inflicts violence, or threatens violence, on people, especially within the domestic situation, is not just taken down to an office or receives a letter from the fiscal—I understand that is how it is done—saying, "We propose to offer you a fiscal fine of £50, and goodbye". It is important from the public's point of view that people who assault mothers and children or partners and their children should have brought home to them that society regards it as a serious offence. A fiscal fine, certainly from experience in divorce work, will be laughed at by some of the people who inflict violence on their partners and cause distress to the children. We know that violence to the partner has a knock-on effect on the children. Equally, violence to the children has a knock-on effect on the partner, and violence to both in a family fracas has drastic effects on both sets of people.

What is proposed in the amendment is that persons who indulge in such violence should have a message sent to them by the community that it will not put up with such behaviour; there will be no easy way out; and the person concerned will be forced to come to the court and, if the evidence is sufficient, be prosecuted; or, if the partner or wife decides not to pursue the matter, that will not be news to those involved in the courts.

The amendment is saying that there must be a limit to fiscal fines. This is one area in which the Government might consider saying, "No, you are not going to have a fiscal fine. Come and tell us how it happened. You

16 Jan 1995 : Column 505

can hear the evidence from your wife, child or other person. If convicted, the court will deal with you in the normal way." I beg to move.

Lord Rodger of Earlsferry: I cannot accept the amendment. I understand what the noble Lord is saying, but as he knows, in any case, including cases of the kind mentioned in the amendment, it is always open to a procurator fiscal, in the exercise of his discretion, to take no proceedings or to issue a warning letter. That applies to cases of alleged violence towards women.

All the amendment would do would be to make it impossible for a procurator fiscal to make an offer of a fiscal fine, but a fiscal fine would be a more stringent penalty, or approach, than that of taking no proceedings or of issuing a warning letter, neither of which is struck out by the amendment. We do not believe that it is appropriate to put a straitjacket on the procurator fiscal's discretion. The procurator fiscal is used to approaching all these delicate matters and to considering in all cases what is the most appropriate approach. For example, it might be that the violence offered to a woman was offered by another woman, or that the threat of violence was to be seen as a foolish threat which was not intended to be carried through. It might also be that the whole thing appeared to be a trivial or relatively petty matter.

There is a range of circumstances and we do not believe that one can prescribe for this kind of approach in this particular case. We believe that it is important that the procurators fiscal should always consider the circumstances in any case. When they do so a whole range of disposals—from taking no proceedings through to prosecuting in the matter—may be appropriate. We consider that it is proper for them to have that range open, including a fiscal fine in appropriate cases.

10.30 p.m.

Lord Macaulay of Bragar: I note what the noble and learned Lord says. The amendment may not be happily phrased, in common with a number of amendments before the Committee. The great compulsitor on an offending partner—if we narrowed it down to an offending partner or husband, or a wife who assaults her husband—is publicity. No man likes to be known in the local community as someone who thumps his wife or abuses his children, physically or otherwise. Taking the matter out of the public domain causes some degree of concern. Of course, the procurator has various options open to him and can send the case to mediation. If there is any hope of saving a marriage or improving a situation, that is important.

We shall see how matters progress once the fixed penalties are in operation. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 agreed to.

Clause 52 agreed to.

Clause 53 [Legal aid in criminal appeals]:


Next Section Back to Table of Contents Lords Hansard Home Page