I beg to move, in page 9, line 34. at the end, to insert:
Instrument" shall not include rod and line or gaff or landing net.
Because we feel that the words "an instrument" in the drafting of the Bill are much too vague, my hon. Friend the Member for Cardigan (Mr. Bowen) and I commend this Amendment to the Committee. As the Lord Advocate well knows, although a gaff or landing net is used by many fair and legal fishers, a case can be made out for the wrong use of both those articles. The Lord Advocate has already told us that it is almost impossible to define the word "instrument," because a crafty person would immediately provide himself with an illegal gadget not mentioned in the Bill. I sincerely hope, therefore, that the Amendment will be accepted because it will prevent the annoyance and victimisa-
tion of the fair angler by the over-zealous or bullying bailiff.
As the Lord Advocate stated, one object to the Bill is to provide a standardisation of the angling law throughout Scotland. Surely this is a golden opportunity to standardise the use of the gaff in the fishing season throughout Scotland, and to insert the provision that it shall only be regarded as a legal instrument when the person with the gaff is also in possession of a rod and line.
I am not at all sure that the hon. Gentleman is not, perhaps, under a misapprehension with regard to this Amendment, but, at any rate, I am not out of sympathy with the general proposal which he has just made. As he knows, forfeiture would not take place where there is legal fishing. He referred to one exception which we have made in relation to the gaff during a short part of the season on the Tweed, which is excepted for a very good reason. It is due to the condition of the fish and to the damage which would result if we did not make that exception.
Normally, as we have already indicated to the Committee, the landing net and the gaff, and, as we offered earlier, the tailer, will be excepted. But when we come to illegal methods outside Clause 1, then, quite plainly, one could use a landing net of a gigantic size and certainly not in association with a normal rod and line. One could go into a pool with a specially constructed net and do a great deal of harm. One could construct an instrument which would look like a gaff and which would, indeed, be a kind of gaff, but which would not be used for the normal purpose of assisting ashore fish caught by a rod and line.
I hope, therefore, that the hon. Member will agree that we had better stand where we are, that forfeiture should take place in that kind of condition but being sure that the normal use of the landing net, the gaff and the tailer is permitted at all times, except during this limited part of the Tweed season, and that forfeiture arising under Clause 1, at any rate, does not apply.
I should like to ask my right hon. Friend if he would look at this Clause again. I feel that the case made out by the hon. Member for Roxburgh and Selkirk (Mr. Macdonald) has some value in it, because I think all of us agree that the main purpose of bringing this Bill into being was to prevent what was being done by organised gangs. However. I can imagine something happening in the case of a person, something which might be regarded as a little illegal but which one might well overlook, having regard to the fact that the forebears of these Highlanders have always been on the land—and it is only now that things which their forebears did in gathering food are being made illegal. I feel that it would be harsh and an injustice to inflict these penalties on a fisherman who might be infringing the law in a slight degree.
By using a certain hook that my right hon. Friend knows nothing about. There are many methods. I do not want to give the poacher away, but I feel it would be a harsh penalty to take from that fisherman his rod, reel and line. I appreciate what the Secretary of State has said about a landing net of the type he indicated. While I am sure that all of us who have angling interests at heart deprecate illegal methods very much, there are qualifications to that general statement in the case of some very good persons who do not do a great deal of wrong, and I would be very loth to take away the rod which the angler cherishes so much.
I beg to move, in page 10, line 1, at the end, to insert:
with such bait or lure as is lawful at the passing of this Act.
The purpose of this Amendment is to extend the definition of rod and line fishing to remove any doubt whether the use of a drag hook would be legal. We want it made quite clear that the use of a drag hook will continue to be illegal, as it is at present. We also want to make it clear that any bait or lure lawful at the passing of this Act will continue to be lawful bait and lure, but anything which at the date of the passing of the Act has been held to be illegal will be an illegal method of fishing by rod and line.
There is one possibility which I do not think the Lord Advocate has covered. What about some new lure that may be invented? Every now and again something new comes along and it is generally brought in from America. I suggest, for example, the bait that is called basserino, a wobbling and diving lure used when spinning for pike and salmon. It is a perfectly fair and sporting method of fishing. Do we understand from what the Lord Advocate has said that from now on the baits and lures that exist, if permissible, will continue to be allowed, but that nothing new may be brought in?
What is the basis of the terms "legal" or "illegal" lure?
I was indebted to my hon. Friend the Member for Midlothian and Peebles (Mr. Pryde) for this Amendment. The Committee will remember that when I was discussing this matter on Second Reading, my hon. Friend made the point that the definition in the Bill was a pretty incomplete definition. I have therefore gone out of my way to help him. But if he is going to complain that my previous term was too loose, and now that I make an attempt to meet him he wants to ask more precisely how I know what is a lawful lure, I am tempted to take this back altogether.
I hope the Committee agrees that this is a step forward. As to the lure which may become illegal and which may be invented, we shall look at that when it comes along. Anglers' associations and anglers in general have a pretty good idea of what is legal or illegal. I do not think I could define in vacuo what may become an illegal lure. That would be a massive work of imagination to which I am not at all anxious to commit myself.
I meant as the lure comes along. If inventions come along on the lines of present lures they will be considered.
I beg to move, in page 10, line 7, leave out from "conveyance," to the end of line 9, and insert:
capable of carrying passengers, livestock or goods by road.
The definition of a vehicle in this Clause seems to be open to two disadvantages. The first is that it excludes public service vehicles. It also places in the way of those driving public service vehicles an undue temptation, because quite naturally anybody who wants to move fish that has been poached will think out other means of doing so if he knows that he cannot move it by private conveyance. I think, therefore, it is putting an undue temptation in the way of drivers of public service vehicles.
Secondly, there is the question of the definition of
… the meaning of the Road Traffic Act. 1930.
I have heard of poachers going out with perambulators. That would not seem to be covered by this definition. Obviously, common sense is used in this matter, but the definition does appear to be too narrow. Whilst I do not attach particular importance to the words I have proposed, I suggest that the right hon. Gentleman should reconsider the definition.
What is worrying some of us, myself included, is whether the definition of a public service vehicle covers all transport, such as that belonging to British Railways or that concerned under the Road Traffic Act because, with the increasing multitude of vehicles belonging to nationalised industries, there may be a great number of vehicles excluded from the definition. It is always within the realm of possibility that the driver of a vehicle which belongs to a nationalised industry might, on his way home, or when he is not busy, or at some other period. be inveigled into assisting poachers in transporting poached fish. The whole object of the Amendment is to deal with that. It is very similar to the Amendment moved by my hon. Friend the Member for Dumfries (Mr. N. Macpherson). We should like this point elucidated.
I have here a certain amount of sympathy for the right hon. Gentleman and his hon. Friend. In framing this definition we thought that, by and large, we had covered the types of vehicle which would normally be employed in these enterprises but, on reflection, it would seem that there might be certain types of vehicle which conceivably could be used and which would not be embraced by the definition. It is difficult to frame a definition which will embrace all the vehicles to which hon. Members refer and, at the same time, exclude those which obviously should be excluded. We are looking into this question, however, and between now and the Report Stage we shall try to devise a definition which will, perhaps, be more acceptable and will serve the purpose to a greater extent than the existing definition.
In his search for a form of words will the Lord Advocate remember that it is important that the right of search should cover all vehicles, including the nationalised vehicles? We are not so much concerned here with the right of forfeiture under Clause 17 because, clearly, a nationalised vehicle would not be forfeited. It could only be given back to the State, and it belongs to the State already. It is the question of the power of search which is important, and I suggest that the form of words should cover every vehicle in connection with the power of search but, in connection with forfeiture, should exclude nationalised vehicles.
I beg to move, in line 14. at the end, to insert:
(3) Nothing contained in this Act shall limit or take away the power of any person or body to take legal proceedings for the enforcement of this Act or of any other Act relating to salmon and freshwater fisheries.
I feel very strongly about this Amendment and I hope the Government will be
prepared to consider it. I do not want again to go over the ground which was covered on Second Reading, and I have re-read what the Lord Advocate said on that occasion in dealing with this point, but, nevertheless, the object of the Bill, and I suppose the object of all of us, is to see that something is done to preserve the stocks of salmon and sea trout in our rivers. What worries my hon. Friends and myself is whether the same effective action will be taken by way of prosecution under this Bill as has been taken in the past.
I am not in the least desirous of belittling the Bill or its intentions, but I do not want to see the power to prosecute whittled down. Under the Salmon and Freshwater Fisheries Act of 1923, outside bodies, river boards and so on, have had powers of prosecution, while in Scotland anybody has had the power to prosecute. As I mentioned before—and I apologise for repeating myself—the Fishmongers' Company, to which reference has been made, has, in the interests of stocks of fish in our rivers, been doing its best over the past 50 years to see that the law was observed and that poaching was restricted. The Secretary of State has agreed, and I am sure the Lord Advocate would agree, that they have been carrying out this function efficiently and with a certain degree of success—not with a view to making money out of it by way of fines, because it has not been a moneymaking business. They know a good deal about the work and have been successful in some 200 prosecutions, with only about five failures out of the last 200 cases.
In support of what I have said, I should like to read a short letter which was sent by the superintendent of the River Tweed Commissioners to the clerk of the company, dated 18th December, 1950. It was dealing with a very important case of salmon poaching in which there was an appeal to the Court of Session. The Lord Advocate referred to certain remarks made by the Lord President of the Court of Session in dealing with this matter. I do not wish anybody to think that anything I say is a reflection on the Bench. I am sure that would be out of order. But the Lord Advocate brought forward the views of the Lord President in his support, and I simply want to point out that the people who carried through this successful prosecution had, in turn, support
from the River Tweed Commissioners. The superintendent wrote:
I have been following this case with considerable interest as it appeared probable that a large proportion of the salmon came from the Tweed district. At our quarterly meeting with great satisfaction I was able to report to the commissioners that the appeal had failed and I was instructed to write to you and convey the appreciation of the commissioners to all concerned, especially to Mr. Gibson for his able handling of the case. This case has probably done more good in Southern Scotland that any other for a very long time as, from all I hear, the market for poached fish for small hotels has received a severe setback.
That supports the view which I am trying to advance. I hope, of course, that the Crown will prosecute with energy in all proper cases, but it seems to me a pity that the power to prosecute should be removed from others who have been dong good work in the past. I am not dealing only with the Fishmongers' Company for I also refer, of course, to all the river boards and to such organisations as the Loch Lomond Angling Association. This is a very important matter and I feel very strongly about it and about the Amendment. I hope the Government will consider the Amendment favourably and will be prepared to accept it. It is I believe, in a perfectly clear and proper form.
I shall deal in the first place with last remark of the right hon. Gentleman, when he said that he thought the Amendment was in proper from. I am afraid that it does not carry out the purpose he wishes. I shall indicate my views rather strongly about the merits of the cases later, but I would point out to him that, as I read the Amendment, it does not achieve the purpose he seeks, because it says:
Nothing contained in this Act shall limit or take away the power of any person or body to take legal proceedings for the enforcement of this Act"—
I would point out that under the Bill the only person who has the right to take proceedings is the Public Prosecutor. The Amendment goes on:
or of any other Act relating to salmon and freshwater fisheries.
We are not interfering with the powers left in any of those earlier Acts, the power of the private prosecutor. I am afraid that the Amendment does not therefore achieve the purpose that is sought.
I wish with much strength and emphasis to resist the Amendment on its merits. In so doing, I am not in any way derogating from the conduct of these private prosecutors—the Fishmongers' Company and so on. The reason why we are stopping the right of private prosecution is not because they have carried out their duties imperfectly, but because there is a big principle at stake. By and large, we recognise in Scotland that private prosecutions play no part in our criminal jurisdiction, and that the right to determine whether a citizen should be hauled before a criminal court is the responsibility of the Public Prosecutor. I appreciate that this differs from the English system and, probably. from the Northern Ireland system.
In any event, we are not dealing with these other countries. but with Scotland with its own procedure, traditions and customs. The whole tendency has been to remove the existing rights of private prosecutors and to confide them in the Public Prosecutor, which is a principle I support most strongly. I feel that it is wrong in principle, with our traditions and background, to say that private individuals should have a right to bring a fellow citizen before a criminal court, when that private individual has a vested right in the issue. The person who should determine whether or not a prosecution should take place is the Public Prosecutor, who is an independent person with no vested right in the matter and no interest one way or the other but that of the administration of justice.
It is against that background that I oppose this Amendment. I am fortified in my opinion by the views recently expressed by the Lord President of the Court of Session, which I quoted during the Second Reading debate. For the benefit of the Committee, and particularly those Members who were not here during Second Reading and have not perhaps read the OFFICIAL REPORT, I should again like to quote Lord Cooper's dictum. He had this to say in dealing with an appeal against a conviction in a case where the proceedings had been inaugurated by the Fishmongers' Company as a private prosecution. Lord Cooper has had a long experience now on the Bench. He was Lord Justice Clerk and latterly has
been Lord Justice General. He has had long experience as Lord Advocate—one of my predecessors—in the Government of 1935. This is what he said:
There remains the matter around which the debate centred, namely, the admissibility of the vital evidence relating to the discovery of the salmon in the cold store The respondents, the Fishmongers' Company, are private prosecutors, who appear to have assumed, both in Scotland and England, the responsibility of enforcing the Act, and it is certainly a tittle odd that a matter which has latterly acquired so pronounced an element of public interest should not yet have been confined to the Public Prosecutor alone."—[OFFICIAL REPORT, 13th December, 1950; Vol. 482, c. 1285.]
It shows that under existing circumstances, and having regard to the record and history of this matter, he felt that the right of prosecution should alone be confided in the Public Prosecutor. Whether we are dealing with fish or any other subject, as far as the law of Scotland is concerned I cannot be too emphatic in asserting my opinion that the right to prosecute should be the public duty vested in the Public Prosecutor. I see no justification for continuing the right of private prosecutions where it exists, or introducing it as a new principle where it does not exist, because the whole tendency has been to concentrate the right of prosecution in the Public Prosecutor and to waive the right of the private prosecutor.
A very interesting piece of history can be adduced in support of this tendency, because there are still some Acts in existence which give the right of private prosecution. Under the Sheriff Court and Legal Officers Act, 1927, power is given to the Lord Advocate in any case which can be taken in the sheriff court, either by a private prosecutor or by the Public Prosecutor, to order that the case will be taken only by the Public Prosecutor. Lord Cooper, when Lord Advocate in 1938, applied that rule in relation to the sheriff court in respect of certain statutes dealing with fishing and game. It indicates that even in the days prior to the war there was this tendency to restrict wherever possible the right of private prosecutors. I am rather surprised at the party opposite, which was the party responsible for these Measures in those days, now seeking to maintain in this very limited sphere the right of private prosecution by—and let us be quite frank about it, although I have no intention of saying anything that would reflect on the company—an interested body.
Surely, not only in the interests of the Fishmongers' Company or the river boards, but in the interests of the individual who is to be prosecuted, who would very often far rather be prosecuted by a private individual; otherwise he would have the extra stigma of being prosecuted by the Crown.
That is a very weak point. The criterion is whether a person has committed an offence and has been convicted. I have never heard it suggested in my comparatively long experience in the law that people charged with offences prefer private prosecutions as against public prosecutions because the stigma is slightly less in the case of a private prosecution. The noble Lord apparently prefers to be charged by a private prosecutor than by the Public Prosecutor so far as this particular type of offence is concerned, but he will be disappointed, because I can assure him of equal efficiency in prosecution.
The right hon. Gentleman said something which I am sure was not intended to cast any reflection on the officers of my Department. He wondered whether, if the power were transferred solely to the Public Prosecutor, there would be the same effective action as has obtained in the past. The people who will be prosecuting as public prosecutors will either be the Procurators Fiscal or one of my deputies, who are the most experienced prosecutors in the country. It is no use the right hon. Gentleman saying, as I think he wants to rise to his feet to say, that the Fishmongers' Company have specialised knowledge of this type of case.
I did not mean to cast any reflection. I only meant to put the point whether, with their multifarious other duties, they would be able to do so. I know that they will carry out the prosecutions with which they deal with the utmost efficiency, but there is no harm in supplementing their efforts.
If that argument was accepted the principle could be extended throughout the whole gamut of criminal offences. Why not say, to take an example, that because they may be very busy they should not prosecute under the Road Traffic Acts, and that the people involved in accidents with motor cars should have the right of private prosecution under that Act.
It is part of the office of the Procurator Fiscal and the Lord Advocate's depute to be able to present to the court in the proper manner, supported by the requisite evidence and fortified by the necessary legal arguments, the case to justify a conviction. When they are armed with that evidence it does not matter whether they are dealing with salmon, motor cars or anything else, it is their forensic skill and method of presenting the case which determines whether or not the case is properly presented.
Accordingly, I cannot see that there is any reason for suggesting that these highly skilled prosecutors, who are doing that type of work day in and day out will be any less effective than a person who appears only spasmodically on behalf of one of the boards or one of the companies. Nor do I think that any criterion can be applied in respect of the number of successes or failures in prosecutions. That is not necessarily a touchstone of the administration of justice because it may well be that during a long period a number of convictions are obtained merely because the evidence adduced has been sufficient.
Is there any evidence in the possession of the right hon. Gentleman to show that if the evidence had been provided not to the solicitor engaged by the Fishmongers' Company but to the Procurator Fiscal or the Crown Office there would not have been the same number of convictions? Has the right hon. Gentleman any evidence that those convictions were obtained because the prosecution was undertaken by the solicitor of the Fishmongers' Company, and that they would not have been obtained if the prosecution had been in the hands of the Public Prosecutor?
The company also have the inspector, who is responsible for organising the seizure or apprehension.
And he certainly has the power to continue to do so under this Bill. I presume that is so if he is appointed one of the officers under the Bill, and if those people are carrying out those duties I am sure that if, with full consultation with my right hon. Friend on this matter, they bring the evidence before the Public Prosecutor, there will be equally effective prosecutions.
There is a point which I would not suggest has any bearing on the matter because I do not wish to impute to the company any wrong motives, but the fact remains that if there is a private prosecutor he gets the fine. There is not a great deal in that because experience shows that most of the fines are eaten up in defraying the expenses in conducting the prosecutions, so that it is not a money making concern for the private prosecutor. Nevertheless, having regard to the general trend, and fortified by the opinion on this matter of such an eminent person as the Lord Justice General, and looking at the merits of the case, I have no hesitation in rejecting the Amendment, and in inviting the Committee to do likewise.
We evidently differ quite considerably as between England and the Scottish Office because in this matter we want to have somebody who will prosecute the poacher. Although under Scottish law it may be the Public Prosecutor who will do it, I feel that he has no urge to do it, and so far as I know he has—
I cannot let that comment pass. These people are officers of my Department. The hon. and gallant Member says that they have no urge to do it: they have the duty to do it.
If the Lord Advocate will excuse my saying so, his officers and the Public Prosecutor are not on the spot. The man who is on the spot is the man who wishes to undertake the prosecution—the owner of the river.
There are conditions in which the owner may wish to prosecute. There are also conditions in which the owner does not wish to prosecute. What happens in the case in which the owner does not wish to prosecute? The poacher gets off scot free. If he has been caught by people other than the owner, those people cannot report him to the Public Prosecutor apparently. [An HON. MEMBER: "Why not?"] I am told that the owner is the man who should do it. [An HON. MEMBER: "No."] Then is the position that a common informer from anywhere can walk into the office and report the offence?
I know of a case in which poaching occurred on water owned by the Forestry Commission. They had all the necessary evidence, they considered the case for a long time and then said that they were not interested in what was in the water and that they would, therefore, refuse to prosecute. They having refused to prosecute, it was rather invidious for anyone else to call in the Public Prosecutor; he never got to hear of it, and that case went by default. That is the kind of case I want to avoid. I say that the man who has the urge to prosecute is the man who is interested in the result and that he should be the one to undertake the prosecution. That is how the matter is looked at in England.
I rather regret having to speak at this moment. The Lord Advocate has made some very sweeping statements of a general, rather vehement kind and has accused my own party of this or that view. I do not for one moment doubt or question the sincerity of my right hon. Friend the Member for Moray and Nairn (Mr. Stuart), and my hon. Friend the Member for Lanark (Lord Dunglass) and the others who are supporting this Amendment. They are absolutely entitled to do so, and I frankly confess that I was impressed by the force of their argument. However, I must make clear my own point of view.
For the last 20 years I have been, and still remain, strongly and even passionately opposed to private prosecution in any shape or form. I have frequently spoken against it and I am aware of the attitude in this House of the present Lord Justice General on the issue when he was Lord Advocate. He made it plain to us all before the war, and he has subsequently made it plain on the Bench. I hate private prosecutors and common informers. I should like to see them all done away with. The best form of administration of the criminal law is to confine it increasingly and finally and totally to the prosecuting department under the Lord Advocate.
I am sorry to have to differ from some of my hon. Friends, but this is a question on which I have felt strongly for many years, and I have rejoiced to see the whole system of prosecution in Scotland passing steadily over the past 15 years out of private hands into public hands. That is right as a question of principle, and I agree on that point with the Lord Advocate. In view of the sweeping statements which have been made on both sides of the Committee in this interesting debate, which has obviously been conducted with great sincerity on both sides, I could not, representing as I do a constituency with great fishing interests, both private and public, allow this occasion to pass without saying what I conscientiously feel on this point as a matter of principle.
I am astonished at the Lord Advocate not accepting this Amendment. I regard it as very important and as involving an important principle. I would like to refer to one thing that my hon. Friend the Member for East Aberdeenshire (Mr. Boothby) said. I can well understand his dislike of private prosecutors and public informers, but I should like to make it quite clear that there is nothing in common between a private prosecutor and a common informer.
A common informer is one who for personal gain takes a civil action based on a breach of a statute. A private prosecutor is simply one who endeavours to enforce the criminal law as it is without getting any gain from it at all. No private prosecutor has ever made a penny out of a private prosecution. That may be a misapprehension, which ought to be cleared up.
It does not necessarily follow that a common informer has personal gain. He may do it just for the sake of it.
He may fail in his action, but if he succeeds, he is bound to get something from it. What he does with it afterward, one does not know. However, there is that distinction which I think should be known by the Committee.
The Lord Advocate is quite right when he says that we in Northern Ireland have the same system as in Scotland, and I know that in my own country there is very strong feeling in favour of it. We have the Crown Prosecutor and Scotland has the Public Prosecutor, who perform the same function. In England, however, there has always been a system of private prosecution, and, much as I dislike saying it, I am bound to say that I think that, on the whole, the English system is better than the system in either my own country or Scotland.
This is an important matter, and I do not for a moment make any reflection on the very able officers who carry out these functions in Scotland, and who prosecute with great ability and skill, and I am sure, in every circumstance, do their duty. But it is a dangerous principle to confide in any officials the right of saying whether or not there should be a prosecution, and in England, where I think they have a greater and deeper regard for these things, their attitude—and I am sure it is a proper one—is that it should be not only the right but the duty of any member of the community who sees a breach of the law to take' proceedings if it is necessary. I am sure that on the whole that makes for greater liberty.
Though I am sure there never has arisen, there might arise an occasion when, for one reason or another, the officials of the Department would not desire to prosecute. That has not arisen in Northern Ireland, nor in Scotland, but it is always a danger that is there, and then the ordinary person is left helpless. I have myself taken part in England in both Crown prosecutions and private prosecutions, and my experience has been that the private person moves very reluctantly; he knows that he will probably have to pay certainly quite an amount of the costs which he can never recover, and he would much prefer the prosecution to be done by the police, or by other official bodies. There are occasions, however, when it is inexpedient or difficult for public persons to prosecute, and the private person then has to do so.
This is an important matter and perhaps the hon. Gentleman will forgive me interrupting once again. Surely he must see that it is repugnant, or might be repugnant, to a great many people to bring a private prosecution. Therefore, a great many private prosecutions will never take place, but if it were a case of merely giving information to the Procurator Fiscal many private owners who caught somebody poaching would be prepared to do that and let the Public Prosecutor prosecute, if necessary, rather than prosecute themselves.
I entirely agree. My hon. Friend is perfectly right, but this really is not taking any right from the Public Prosecutor. It is merely saying that those people who do not wish to prosecute could go to the officials concerned, but those who may be able to afford it and do not wish to place a burden on the Lord Advocate's Department can pursue this criminal matter themselves. The Lord Advocate is the first member of the Department whom I have ever heard reject something which might save a good deal of work for what are, I am sure, his overworked officials in these prosecutions.
The hon. Gentleman is pointing out that if a private prosecutor does not desire to proceed he need not proceed. Is there not equally the danger that a person who can well afford to initiate a prosecution, a person to whom money does not matter, might turn it into a persecution? In other words, if people can, for personal reasons, not prosecute, might there not also be people who, for personal reasons, will instigate a prosecution against somebody, even though the case does not succeed, and carry out a personal vendetta against somebody else in the district? That would be quite improper. If the evidence is submitted to the Lord Advocate's Department in Scotland, or to the Public Prosecutor, it is sifted and it is for the Public Prosecutor to decide whether there is sufficient evidence on which to bring anyone into court.
I am sure that the right hon. Gentleman has far more confidence in the very brilliant judges who sit on the Scottish Bench than he appears to have from what he has just said.
That is not the point. If a matter is brought into court some of the stigma sticks, and damage might be done which ought not to be done when there is no evidence to justify bringing a prosecution.
If anyone is so foolish as to bring a prosecution in those circum- stances, the judge invariably not only acquits the person charged but makes it very clear that it is a case in which the prosecution ought never to have been brought and awards heavy costs. In criminal cases—and here I speak subject to correction on the practice in Scotland—in England the costs are not taxed; the judge can award any sum he wishes to the defendant in the case. That in itself is a tremendous deterrent against people bringing private prosecutions. I can assure the right hon. Gentleman, from my own experience, that in England people do not bring private prosecutions just for the pleasure of persecuting people. I never heard of a case where that was done, and I am sure it never has been. They do it from a sense of duty.
There are sometimes cases where private ownership is infringed, and those are just the sorts of case where there might well be a private prosecution. I can understand the Lord Advocate's argument in the case of a major criminal offence such as manslaughter, murder or treason; that type of thing should not be the subject of a private prosecution. But here, of course, part of the offence is the infringement of private rights, and it therefore seems to me that those are peculiarly appropriate cases for private prosecutions.
I hope that the right hon. and learned Gentleman will accept this principle. I am aware that there is some difficulty in the drafting, which, I have no doubt, can be put right. I feel very strongly on this matter. I have had a certain amount of experience in my own country, where the law is similar to that in Scotland, and I think that the right to private prosecutions would not be abused, but would be, as it were, of substantial assistance to the ordinary liberties of private people.
I apologise to the Committee for speaking again on this subject, but in view of the speech of the hon. Member for Belfast, South (Mr. Gage), I feel that I should intervene, because this is a matter of great principle so far as our law in Scotland is concerned. I have a great respect, admiration and liking for the hon. Gentleman, who usually makes very useful contributions to our debates. I say that in all sincerity. I must say, however, with regret, that this occasion is an exception. I think he spoke in this instance without, if I may say so, the proper background of our legal system in Scotland. For instance he talked about the right of a court to award costs, and sometimes heavy costs, in a case. That does not play any part in the law of Scotland.
I said that I spoke subject to correction.
Yes, but the hon. Gentleman prayed in aid as part of his argument that it was a deterrent, and I felt quite naturally that perhaps he did not have sufficient background knowledge of our procedure to enable him to get a proper appreciation. I see that my right hon. Friend the Home Secretary has just come into the Chamber, which is fortunate or, perhaps, unfortunate, in view of what I am going to say. The hon. Member for Belfast, South, said that having balanced the matter as fairly as he could, he thought that the English system of prosecution was better than the Scottish.
I know that I shall be accused of being partisan, but I think the law of Scotland is better than the law of England. I say, with deference to the Home Secretary, that within that generalisation I am satisfied that the criminal law of Scotland is considerably better than the criminal law of England—even with the verdict of "not proven," and with no hearings in magistrates' courts before a person comes to be tried.
Do not rub it in.
That being so, I think there would be a certain degree of perturbation throughout Scotland if it were thought that the House of Commons and this Committee were seeking to bring our traditional method of prosecution into line with the alien method employed in England. I am rather surprised to find so many hon. Members opposite, not from Northern Ireland, but from Scotland, with one notable exception, giving support to this proposition, because people will wonder why we should isolate this case, why we should make this case the exception.
Why, if we confine prosecutions to the Public Prosecutor in other spheres, must we retain the right to the private prosecutor in this sphere? It is against the whole tendency of our law. If we come to the principle which was argued by the hon. Member for Belfast, South, I think it is much better before a person is brought into court at all that the decision should be made by a person who has no interest in the case other than his public duty of administering the law. Once the case comes into court it is a matter for the court to determine whether a person is guilty or not.
I am sure the Lord Advocate is not implying that private prosecutors in England have any interest in the case except to see that the law is enforced?
With all due respect, they may not have, but we are dealing with the type of prosecutor in this case—whether it be a board or a company—whose special function is to protect Certain interests in this particular sphere. The Public Prosecutor is motivated by no considerations of that nature, and we must remember that even if the person is brought into court and acquitted, the unfortunate thing is that often a stigma attaches to him albeit he has been acquitted. Therefore, we should not lightly allow people to have the right of bringing a fellow citizen into court and facing him with that stigma. As one Italian client said to me on one occasion, trying to use an old Scottish expression, "There's nae smoke without reek."
In those circumstances, I defend the general principle, which is a fundamental and cardinal principle of our administration of criminal law, of vesting the right in the Public Prosecutor. I should like to thank the hon. Member for Aberdeenshire, East (Mr. Boothby) for his support and recollection of the attitude of one of my predecessors who was a Member of his own Government, in relation to this matter.
I am afraid that the hon. and gallant Member for Wells (Lieut.-Colonel Boles) does not understand the procedure. He complained that the Public Prosecutor would not be the man on the spot, whereas the private prosecutor would be. We do not prosecute people on the spot. We do not hold our courts on the river, but in the sheriff court buildings. We are not concerned about the prosecutor at that stage; we are concerned about the person collecting the necessary evidence to justify the prosecution. If that evidence is available and collected and the person passes it on to the Public Prosecutor and he thinks that it justifies a prosecution, there will be a prosecution. If he does not pass on the evidence, then the Public Prosecutor will not have the evidence and there win not be a prosecution; but that does not alter the position, because if he does not pass on the evidence, presumably he would not have prosecuted himself had he been a private prosecutor. In those circumstances, I cannot understand the hon. Gentleman's objection to that procedure.
I do not know what he meant about the case of the Forestry Commission, but, in any event, it is covered by the general principle which I have enunciated. People have a public duty to report to the Commission any offence, and we trust that they will do so. If the evidence comes before the Public Prosecutor and it justifies a prosecution, there will be a prosecution. I invite the Committee for these and other reasons which I have submitted to reject the Amendment.
We have had a very interesting debate on this subject. I was surprised that the Lord Advocate succeeded in raising a certain amount of heat in defending his principle. Hon. Members on this side who have spoken appear to me to be also defending a principle. I, too, was rather worried when the Lord Advocate referred to tradition, because surely the right of a particular individual to prosecute has existed for a number of years.
I meant the general tradition in Scotland, not the tradition in relation to this particular type of offence.
When the right hon. and learned Gentleman talks of tradition, I think that what he means is the tendency of the law to remove the right, not the tradition. It is a process that has been going on, but it is not a tradition in the real meaning of the word. But that is a small matter.
The Lord Advocate seems to have been fortified in his argument by the view of the Lord President. Naturally, there is no one in this House or in Scotland who does not listen with all seriousness to any view expressed by the Lord President of the Court of Session; but it may well be that there is other eminent legal opinion that may take a contrary view. Would the right hon. and learned Gentleman assure the House that there is no such opinion?
I think that is a reasonable statement to make. It may well be that there is other eminent legal opinion which takes a contrary view to that of the Lord President, and the right hon. and learned Gentleman is not in a position to deny it, because he does not know any more than I do. I think that it is very probable that such opinion does in fact exist.
I agree with what the right hon. and and learned Gentleman has said about the efficiency and diligence of the Public Prosecutor and his deputies. No one would seek to say anything to the contrary. But what I have in mind—and I am going upon certain experiences which one has had in the course of one's lifetime—is that there is a great unwillingness on the part of the Public Prosecutor to bring a prosecution unless he can be reasonably certain that there will be a conviction. It is no good the right hon. and learned Gentleman looking so surprised. I am telling him of my experience, and I have a perfect right to say that. It is no good the right hon. and learned Gentleman flying into the air as he has done already this evening. We are having a quiet and careful discussion, and I am at perfect liberty to put my views as he is to put his. My experience is that Public Prosecutors are sometimes enjoined not to prosecute unless they feel they have the evidence to secure a conviction.
Before the hon. and gallant Gentleman leaves that point, the Committee should be kept right as to the duty of the Public Prosecutor. He is not entitled to initiate a prosecution unless there is before him evidence which, if accepted by the court, would entitle the court to convict. That is the criterion to which he should apply himself.
The right hon. and learned Gentleman is proving the point that I have made, and I am grateful to him for his assistance in that direction.
Here we are dealing with officials, who are working at continuous pressure with a great mass of matters to consider, and they have to decide whether a prosecution should be taken or not. A comparatively minor offence is here brought to their notice. It is only human in those circumstances if those officials feel that they have many other things to do, that the matter is trifling in comparison with other things, and that therefore, they will not proceed.
The right hon. and learned Gentleman raised the point of the great stigma which attaches to anyone who is prosecuted for poaching and brought before the court. Having listened to a great deal of this debate and the debate on the same Measure on a previous occasion, I have almost come to the conclusion that there is no stigma for poaching whatsoever. That is a view that is honestly held not only by many hon. Members on the other side of the Committee, but by Members on this side of the Committee. On the other hand, according to the Lord Advocate, anyone brought into court for poaching has a terrible black mark against his name and reputation for ever afterwards. It just is not so, and that argument does not hold water.
What we on this side of the Committee are trying to do is to make this Bill effective, and I suggest that it is in the interests of the Bill that we leave this right in the hands of private individuals. We are not making a new right, but are merely leaving a right which has existed for I do not know how long. Perhaps the right hon. and learned Gentleman will tell me how long this right of private prosecution has existed in our country.
What has that got to do with it?
It has a great deal to do with it.
For over 100 years.
This right has existed for over 100 years, and I have not heard any hon. Member or even the right hon. and learned Gentleman bring forward evidence to the effect that this has been misused. There is no evidence of anything of that kind at all. Therefore, I suggest that what has been the law for over 100 years might well in those circumstances be allowed to continue. That is my view.
If the hon. and gallant Gentleman is arguing that because a law has existed for 100 years we should not interfere with it, then we should withdraw the Bill which we are considering now.
That might be the hon. Gentleman's desire; it is not
mine. I want the Bill to go through. I think it is a very good Bill, and what I am trying to do is to strengthen it in every way we can. In view of the arguments put forward by my hon. Friend the Member for Belfast, South (Mr. Gage) and other Members on this side of the Committee, I hope we shall proceed to a Division. [HON. MEMBERS: "Oh!"] Yes, certainly, because I am absolutely convinced that the principle on one side is as strong as the principle on the other, and we have every reason to support a tradition which has hitherto existed for so long.
|Division No. 33.]||AYES||[8.47 p.m|
|Aitken, W. T.||Grimston, Hon. J. (St. Albans)||Pickthorn, K.|
|Alport, C. J. M.||Grimston, R. V. (Westbury)||Powell, J. Enoch|
|Amory, D. Heathcoal (Tiverton)||Harden, J. R. E.||Price, H. A. (Lewisham W.)|
|Arbuthnot, John||Hare, Hon. J. H. (Woodbridge)||Profumo, J. D.|
|Ashton, H. (Chelmsford)||Harris, F. W. (Croydon, N.)||Raikes, H. V.|
|Assheton, Rt. Hon. R. (Blackburn, W.)||Harvey, Ian (Harrow, E.)||Rayner, Brigadier R|
|Baker, P.||Harvie-Watt, Sir G. S||Redmayne, M.|
|Baldock J. M.||Heald, L. F.||Remnant, Hon. P.|
|Baldwin, A. E.||Henderson, John (Cathcart)||Roberts, P. G. (Heeley)|
|Bennett, Sir P. (Edgbaston)||Hicks-Beach, Maj. W. W.||Robinson, J. Roland (Blackpool, S.)|
|Bennett, W. G. (Woodside)||Higgs, J. M. C.||Roper, Sir H.|
|Bevins, J. R. (Liverpool, Toxteth)||Hill, Mrs. E. (Wythenshawe)||Ropner, Col. L|
|Birch, Nigel||Hill, Dr. C. (Luton)||Russell, R. S.|
|Bishop, F. P.||Hollis, M. C.||Savory, Prof. D. L.|
|Black, C. W.||Hornsby-Smith, Miss P.||Scott, Donald|
|Boles, Lt.-Col. D. C. (Wells)||Horsbrugh, Rt. Hon. Florence||Shepherd, W. S. (Cheadle)|
|Boyd-Carpenter, J. A.||Howard, G. R. (St. Ives)||Smiles, Lt.-Col. Sir W.|
|Boyle, Sir Edward||Howard, Gerald (Cambridgeshire)||Smithers, Peter (Winchester)|
|Braine, B.||Hudson, Sir Austin (Lewisham, N.)||Smithers, Sir W. (Orpington)|
|Bromley-Davenport, Lt.-Col. W||Hurd, A. R.||Spens, Sir P. (Kensington, S.)|
|Brooke, H. (Hampstead)||Hutchinson, Geoffrey (Ilford, N.)||Stanley, Capt. Hon. R. (N. Fylde)|
|Buchan-Hepburn, P. G. T.||Hutchison, Lt.-Com. Clark (E'b'rgh W.)||Stoddart-Scott, Col. M.|
|Bullus, Wing Commander E. E||Hylton-Foster, H. B.||Storey, S.|
|Burden, Squadron Leader F. A||Jones, A. (Hall Green)||Strauss, Henry (Norwich, S.)|
|Carr, Robert (Mitcham)||Joynson-Hicks, Hon. L. W||Stuart, Rt. Hon. J (Moray)|
|Carson, Hon. E.||Keeling, E. H.||Summers, G. S|
|Channon, H.||Kerr, H. W. (Cambridge)||Sut[...]liffe, H.|
|Clarke, Col. R. S. (East Grinstead)||Legge-Bourke, Maj. E. A. H.||Teevan, L. T.|
|Clarke, Brig. T. H. (Portsmouth, W)||Lindsay, Martin||Thomas, J. P. L. (Hereford)|
|Colegate, A.||Llewellyn, D.||Thompson, K. P. (Walton)|
|Conant, Maj. R. J. E.||Lloyd, Selwyn (Wirral)||Thornton-Kemsley, C. N.|
|Corbett, Lieut.-Col. U. (Ludlow)||Lockwood, Lt.-Col. J. C.||Thorp, Brigadier R. A. F|
|Craddock, G. B. (Spelthorne)||Longden, G. J. M. (Herts, S. W.)||Tilney, John|
|Crosthwaite-Eyre, Col. O. E.||Lucas-Tooth, Sir H.||Touche, G. C.|
|Crouch, R. F.||McAdden, S. J.||Turton, R. H.|
|Crowder, Capt. John F. E. (Finchley)||Mackeson, Brig. H. R.||Tweedsmuir, Lady|
|Crowder, F. P. (Ruislip—Northwood)||McKibbin, A.||Vaughan-Morgan, J. K|
|Darling, Sir W. Y (Ed[...]nburgh, S)||McKie, J. H. (Galloway)||Vosper, D. F.|
|de Chair, S.||MacLeod, Iain (Enfield, W.)||Wakefield, E. B. (Derbyshire, W.)|
|Deedes, W. F.||Macmillan, Rt. Hon. Harold (Bromley)||Wakefield, Sir W. W. (St. Marylebone)|
|Digby, S. Wingfield||Macpherson, N. (Dumfries)||Walker-Smith, D. C.|
|Douglas-Hamilton, Lord M||Maitland, Comdr. J. W.||Ward, Miss I. (Tynemouth)|
|Drewe, C.||Manningham-Buller, R. E.||Waterhouse, Capt. Rt. Hon. C|
|Dugdale, Maj. Sir T. (Richmond)||Marshall, D. (Bodmin)||Watkinson, H.|
|Duncan, Capt. J. A. L||Mellor, Sir J.||Wheatley, Major M. J. (Poole)|
|Dunglass, Lord||Moore, Lt.-Col. Sir T.||While, J. Baker (Canterbury)|
|Duthie, W. S.||Morrison, Maj. J. G. (Salisbury)||Williams, C. (Torquay)|
|Eccles, D. M.||Nabarro, G.||Williams, Gerald (Tonbridge)|
|Fisher, Nigel||Nicholls, H.||Wills, G.|
|Fort, R.||Oakshott, H. D.||Wilson, Geoffrey (Truro)|
|Foster, J. G.||Odey, G. W.||York, C.|
|Fraser, Sir I (Lonsdale)||Orr-Ewing, Ian L. (Weston-super-Mar[...])|
|Gage, C. H.||Osborne, C.||TELLERS FOR THE AYES:|
|Galbraith, Cmdr. T. D. (Pollok)||Perkins, W. R. D.||Mr. Studholme and Mr. Heath.|
|Galbraith, T. G. D. (Hillhead)||Peto, Brig. C H. M|
|Albu, A H||Grenfell, D. R.||Neal, H.|
|Allen, A C (Bosworth)||Grey, C. F.||Orbach, M|
|Anderson, A. (Motherwell)||Grimond, J.||Padley, W. E.|
|Awbery, S. S.||Gunter, R. J.||Paling, Will T. (Dewsbury)|
|Ayles, W. H.||Hall, J. (Gateshead, W.)||Pannell, T. C|
|Bacon, Miss A||Hannan, W.||Peart, T. F.|
|Barnes, Rt Hon. A. J||Hardy, E. A.||Poole, Cecil|
|Bartley, P||Hargreaves, A||Popplewell, E|
|Benn, Hon. A N Wedgwood||Harrison, J.||Porter, G.|
|Benson, G.||Hastings, Dr. Somerville||Proctor, W. T.|
|Bing, G. H C||Hayman, F. H.||Pryde, D. J|
|Boardman, H||Herbison, Miss M.||Pursey, Commander H|
|Boothby, R.||Hobson, C. R.||Rankin, J|
|Bottomley, A. G>||Holman, P.||Rees, Mrs. D|
|Bowden, H W||Holmes, H. E. (Hemsworth)||Reeves, J.|
|Bowen, R||Houghton, Douglas||Rhodes, H.|
|Braddock, Mrs. E. M.||Hoy, J.||Richards, R.|
|Brockway, A. Fenner||Hudson, J. H. (Ealing, N.)||Roberts, Goronwy (Caernarvonshire)|
|Brook, D. (Halifax)||Hughes, Emrys (S. Ayr)||Robertson, J. J. (Berwick)|
|Brooks, T. J. (Normanton)||Hughes, Hector (Aberdeen, N.)||Robinson, Kenneth (St. Pancras, N.)|
|Broughton, Dr A. D. D||Isaacs, Rt. Hon. G. A.||Ross, William (Kilmarnock)|
|Brown, George (Belper)||Janner, B.||Royle, C.|
|Brown, T. J. (Ince)||Johnson, James (Rugby)||Shackleton, E. A. A.|
|Burke, W A||Johnston, Douglas (Paisley)||Silverman, J. (Erdington)|
|Burton, Miss E.||Jones, Jack (Rotherham)||Simmons, C. J|
|Butler, H. W. (Hackney, S.)||Jones, William Elwyn (Conway)||Slater, J.|
|Carmichael, James||Keenan, W.||Smith, Ellis (Stoke, S.)|
|Castle, Mrs B. A||Kenyon, C.||Snow, J. W.|
|Champion, A. J||Kinley, J.||Sorensen, R. W|
|Clunie, J.||Lee, F. (Newton)||Soskice, Rt. Hon Sir F|
|Coldrick, W||Lever, L M (Ardwick)||Steele, T.|
|Collick, P.||Lewis, A. W.J. (West Ham, N)>||Stross, Dr. B|
|Collindridge, F.||Lindgren. G S.||Summerskill, Rt. Hon. Edith|
|Cook, T. F.||Logan, D. G.||Sylvester, G. O.|
|Cooper, G. (Middlesbrougn, W.)||Longden, F. (Small Heath)||Taylor, H. B. (Mansfield)|
|Cove, W. G.||McAllister, G.||Taylor R. J. (Morpeth)|
|Craddock, George (Bradford, S.)||MacColl, J. E.|
|Cullen, Mrs. A.||McGhee, H. G.||Thomas, D. E. (Aberdare)|
|Dalton, Rt Hon. H.||Macdonald, A. J. F. (Roxburgh)||Thomas, I. R. (Rhondda, W)|
|Davies, A Edward (Stoke, N.)||McGovern, J.||Thomas, I. O. (Wrekin)|
|de Freitas, Geoffrey||McInnes, J.||Thurtle, Ernest|
|Deer, G||McKay, J. (Wallsend)||Timmons, J.|
|Delargy, H J||McLeavy, F.||Tomlinson, Rt. Hon. G.|
|Donnelly, D||MacMillan, M. K. (Western Isles)||Ungoed-Thomas, A. L|
|Dye, S.||McNeil, Rt. Hon. H.||Vernon, Maj. W. F.|
|Ede, Rt. Hon. J. C||MacPherson, Malcolm (Stirling)||Viant, S. P.|
|Edwards, Rt. Hon. N. (Caerphilly)||Mallalieu, J. P. W. (Huddersfield, E.)||Wade, D. W.|
|Evans, Albert (Islington, S.W.)||Mann, Mrs. J.||Wallace, H. W|
|Evans, E. (Lowestoft)||Manuel, A. C.||Weitzman, D.|
|Evans, S. N. (Wednesbury)||Mellish, R. J.||Wells, P. L. (Faversham)|
|Fornyhough, E||Messer, F.||West, D. G.|
|Finch, H. J.||Middleton, Mrs. L||Wheatley, Rt. Hon. John (Edinn'gh, E)|
|Follick, M||Mitchison, G. R.||White, Mrs. E. (E. Flint)|
|Forman, J. C||Moeran, E. W.||Whileley, Rt. Hon. W|
|Fraser, T. (Hamilton)||Moody, A. S.||Wilcock, Group Capt. C A B.|
|Freeman, J. (Watford)||Morgan, Dr. H. B.||Wilkins, W. A.|
|Ganley, Mrs. C. S.||Morley, R.||Williams, D. J. (Neath)|
|Gibson, C. W.||Morris, P. (Swansea, W.)||Winterbottom, I. (Nottingham, C.)|
|Gilzean, A.||Morris, R. Hopkin (Carmarthen)||Winterbottom, R. E. (Brightside)|
|Glanville, J. E. (Consett)||Mort, D. L||Woodburn, Rt. Hon. A.|
|Gooch, E G.||Moyle, A.||Yates, V. F.|
|Granville, E. (Eye)||Mulley, F. W.|
|Greenwood, A. W J. (Rossendale)||Murray, J. D.||TELLERS FOR THE NOES:|
|Greenwood. Rt. Hon. Arthur (Wakefield)||Nally, W.||Mr. Pearson and Mr. Sparks|
Question put, and agreed to.