Previous Section Back to Table of Contents Lords Hansard Home Page

Viscount Colville of Culross: I welcome this group of amendments very warmly indeed. There are two underlying themes in it, both of which appear to me to be wholly admirable. First, we are bringing into line all the powers that currently are available, and will be under the Bill, to the High Court and to the County Courts so that the magistrates' courts can have exact parity of powers, which is what was always intended in the first place, but which they did not have in all respects under the drafting of the Bill. Secondly, we are ensuring that the whole of the enforcement of the Bill is done through the common law powers of the court to deal with contempt, and not, incidentally, very largely under the Contempt of Court Act, with the concomitant point that I would like to ask the noble and learned Lord about in one moment.

However, as regards Amendment No. 34, I should like confirmation of a number of points which have caused a good deal of discussion outside the purlieus of Parliament. Does the new phrase which introduces the powers in Clause 16 in fact put the court in total charge of the medical report for the purposes of obtaining, as to how it is to be obtained, and what is to be done with it when it has been obtained, because this has been the subject of some dispute? I would be very grateful if clarification could be given on that.

Secondly, there are on the face of the Bill still two matters which do not appear to be dealt with. They have in fact been dealt with under Amendment No. 38,

24 Apr 1995 : Column CWH19

although it does not say so and it might be just as well to ask the noble and learned Lord to confirm that that is so. Currently, contempts which do not really apply to the magistrates' court very much at the moment, but which will in the future, are dealt with by, among other things, fines and suspended sentences. I have had my own doubts about whether the existing powers of the magistrates' courts under Section 63 of the 1980 Act cover the power to fine, because it talks in fact about default payments. There is no provision anywhere in this legislation at the moment which deals with suspended sentences, although in the County Courts contempts are frequently dealt with by that means. It that is so, then they should be able to be in the magistrates' courts as well.

I therefore would offer to the noble and learned Lord a short passage from a judgment of the noble and learned lord, Lord Denning, in 1970. He said:

"I hold, therefore, that a judge of the High Court still has power at common law to commit instantly to prison for criminal contempt, and this power is not affected in the least by the provisions of the [Criminal Justice] Act of 1967. The powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon. These powers enable the judge to give what is, in effect, a suspended sentence. I have often heard a judge say at common law, for ordinary offences, before these modern statutes were passed:
'I will bind you over to come up for judgment if called upon to do so. Mark you, if you do get into trouble again, you will then be sentenced for this offence. I will make a note that it deserves six months' imprisonment. So that is what you may get if you do not accept this chance.'
That is the common law way of giving a suspended sentence. It can be done also for contempt of court"

I read that passage because I believe that there are a number of people outside this Committee who will wish to follow our proceedings on what appears to be an important group of amendments. If I am correct in thinking that Amendment No. 38 carries with it implicitly, because it refers to the common law power to deal with contempt of court, a power to fine and a power to suspend any sentence, then that, I believe, clears up all the remaining points that I had and which I was worried about at the beginning of the Special Public Bill Committee proceedings. I hope I am right in this and I hope the noble and learned Lord the Lord Chancellor will be able to confirm it.

If I may say so in conclusion, I have not previously been a member of a Special Public Bill Committee, but the complexity of the points that are contained, and indeed resolved, in this group of amendments are fairly substantial, and I am confident that it would have been absolutely impossible to get to the stage that we have now reached in this group of amendments if it had had to be done on the Floor of the Chamber—putting forward tentative amendments to meet one point or another only to have them rejected on drafting grounds or because they were inadequate or improperly thought out. I believe that this is an admirable example of the sort of progress that can be made very swiftly by the proceedings that have been adopted.

24 Apr 1995 : Column CWH20

6 p.m.

Lord Meston: I also join in thanking the noble and learned Lord for these amendments, which indeed meet many of the practical problems that have been thrown up in the course of the evidence. In particular, I welcome the introduction of the ability of the magistrates' courts to receive undertakings. Practitioners who are naive enough—and I include myself in that—in days gone by to have tried to resolve a case in the magistrates' court by offering undertakings have traditionally met a bewildered Bench and a very irritated clerk of the court.

Having said that, I ask one question. It may be that I did not hear the noble and learned Lord correctly. Is it the intention that a power of arrest can, in certain circumstances, be attached to an undertaking as distinct from an order? I notice that there is a specific provision in Amendment No. 54 which relates only to undertakings in certain specific circumstances and says that no power of arrest may be attached to any undertaking given under the new Section 44B.

I am not clear whether it is intended that a power of arrest might be attached to an undertaking given under the main body of the Bill, and I would welcome clarification.

The Lord Chancellor: May I take that last point first? My intention would be that the undertaking would not have a power of arrest attached to it; but, on the other hand, the powers of the court to deal with the matter as if it were a contempt would arise on the breach of the undertaking. So there would be another stage before an arrest would arise. The ordinary way in which that would be developed, if it was wanted to go down that road, would be, of course, to apply for a warrant of arrest. That is my intention and I believe it is what was wanted.

I now turn to my noble friend Lord Colville's questions. The amendment to Clause 16 (1) is intended simply to introduce as a preamble the basis on which the court should have power to ask for a medical report. It is that they consider that the medical report will be required. My view of Clause 16 as it stands is that the court is receiving the medical report for the purpose for which it considers that the medical report is required by the court, and therefore the court has complete power over the report.

It may be that this issue within which a report should be handled is an issue which would require to be elaborated in detail in rules of court. But my intention so far as concerns the primary legislation is that the amendment should make clear the basis on which a report is asked for, and then that Clause 16 itself, with that amendment in place, leaves the court in control of the report, as it is submitted.

I come to a slightly more difficult question as regards Amendment No. 38:

"The powers of the court in relation to contempt of court arising out of a person's failure to comply with an order under this Act may be exercised by the relevant judicial authority."

24 Apr 1995 : Column CWH21

The idea is that the powers of the court are of course defined, but it means that anyone following under the description of the relevant judicial authority will have the powers of the court. This arises most directly in relation to the district judge and his or her powers.

So far as concerns the magistrates' courts' powers, they are already dealt with; they are statutory powers. The power upon which I rely to give the magistrates jurisdiction in dealing with this matter is in the section to which the noble Lord referred, but it is wide enough to cover this kind of situation because it is a power to deal with the kind of default that would arise if there was failure to obey one of these orders. That is my answer. It means that the common law powers are essentially powers of the High Court judge and the powers of lower courts are basically statutory powers, and I rely on these in this connection.

Viscount Colville of Culross: In that case it is something to which I would like to return at a later stage, for this reason: if the county court is currently passing suspended sentences for contempts of the legislation which is going to be replaced by this Bill, they must have some statutory jurisdiction to do so. They certainly are not relying upon the Criminal Justice Acts, let alone upon the Criminal Justice Acts limited as they now are since 1991 to very exceptional circumstances. I do not know what powers they are relying on when they impose suspended sentences, but they certainly do impose suspended sentences and it is a useful remedy for them to have. I hope that therefore may be clarified.

So far as concerns the magistrates' courts, if we are to give the magistrates' courts parity of powers and jurisdiction, which is the whole thesis that underlies the Bill, then they too will have to have statutory powers if they cannot do it under the common law power that the noble and learned Lord, Lord Denning, was talking about in the passage from which I read. I therefore very earnestly ask the noble and learned Lord, the Lord Chancellor to look at this again, because I believe that suspended sentences are something that ought to be clarified so that they can continue to be used in suitable cases. Certainly I will not go back to the question of Section 63 if the noble and learned Lord thinks they can fine under it, which is what they are doing now, although with some misgivings. I am certainly not going to interfere with that situation. As for suspended sentences, I am afraid I am not at the moment content that there are necessary powers.

Next Section Back to Table of Contents Lords Hansard Home Page