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New Clause. — (Provision for charge for careless driving on hearing of charge for reckless or dangerous driving.)

Orders of the Day — Road Traffic Bill. – in the House of Commons on 28th June 1934.

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(1) Where a person is charged before a court of summary jurisdiction with an offence under Section eleven of the principal Act (which relates to reckless or dangerous driving) and the court is of the opinion that the offence is not proved, then, at any time during the hearing or immediately thereafter, the court may, without prejudice to any other powers possessed by the court, direct or allow a charge for an offence under Section twelve of the principal Act (which relates to careless driving) to be preferred forthwith against the defendant and may thereupon proceed with that charge, so however that he or his solicitor or counsel shall be informed of the new charge and be given an opportunity, whether by way of cross-examining any witness whose evidence has already been given against the defendant or otherwise, of answering the new charge, and the court shall, if it considers that the defendant is prejudiced in his defence by reason of the new charge being so preferred, adjourn the hearing.

(2) A defendant in whose case the requirements of Section twenty-one of the principal Act (which relates to notice of prosecutions) have been satisfied, or do not apply, as respects the alleged offence under Section eleven of the principal Act, may be convicted on a charge preferred under the foregoing Sub-section, notwithstanding that those requirements have not been satisfied as respects the alleged offence under Section twelve of the principal Act.—[The Solicitor-General.]

Brought up, and read the First time.

5.9 p.m.

Photo of Mr Donald Somervell Mr Donald Somervell , Crewe

I beg to move, "That the Clause be read a Second time."

I think I am right in saying that this new Clause embodies a suggestion which was made by my hon. Friend the Member for Thirsk (Mr. Turton). He is, unfortunately, unable to be here to-day, but I would like to express our gratitude to him for raising the point, which is a point to be met. The Clause deals with the position where a person is charged before a court of summary jurisdiction with an offence under Section 11 of the principal Act, which is the offence of dangerous driving. The Clause enables the court, if that offence is not proved, subject to all proper safeguards to direct that the person may be charged with the offence of careless driving under Section 12. Under the law at present it is true that it is possible to issue alternative summonses in the first instance, but certain courts rather object to that procedure on the ground that it may confuse, if not the court, the accused person, as to what is actually the charge which has to be met. Therefore in certain cases the prosecution are faced with the dilemma that possibly they think a more serious charge ought to be made. If the accused is acquitted on that charge, although perhaps plainly guilty of careless driving, the charge could not be brought home unless there was the somewhat oppressive procedure of issuing a further summons and bringing him and all the witnesses back again to the court at some later date.

To meet that difficulty this new Clause has been moved. It provides that if the court think proper to direct or allow the lesser charge, the accused person or his solicitor or counsel shall be informed and be given an opportunity, whether by way of cross-examining any witnesses whose evidence has already been given against the defendant, or otherwise, of answering the new charge, and if there is any chance of his being prejudiced by the new charge being brought forward at this time the hearing shall be adjourned. The second Sub-section of the new Clause I need not describe in detail. The House can accept it from me that it is purely consequential, having regard to Section 21 of the principal Act, which deals with notices having to be given.

5.12 p.m.

Photo of Mr Henry Cautley Mr Henry Cautley , East Grinstead

This new Clause will very greatly facilitate the working of the courts on these particular offences. The offences of driving to the danger of the public and driving carelessly shade off one into the other. Hitherto it has been necessary to issue two summonses. The learned Solicitor-General talked of alternative summonses, but they were two separate charges and two separate summonses had to be issued. That meant extra expense. In the Committee stage the hon. Member for Thirsk (Mr. Turton) put down an Amendment that on a charge of driving to the danger of the public the court should be empowered to convict for the lesser offence. There was practical difficulty in that Amendment. I am very glad at the acceptance of my hon. Friend's proposal by the Home Office. It will facilitate the trial of these cases and save expense.

5.14 p.m.

Photo of Lieut-Colonel John Moore-Brabazon Lieut-Colonel John Moore-Brabazon , Wallasey

I am not a lawyer and it is a little difficult for me to speak upon this particular point. I thank the learned Solicitor-General for explaining the new Clause very clearly. It seems to be somewhat penal, however. I do not know whether he can quote any other offence in the courts where, after an accusation fails, it is possible to shift back to some minor charge. There may be some other offences, and if so perhaps he will let me know. It seems to me that this is one of the usual attempts to convict the motorist in preference to anyone else. I am, of course, not unfavourable to people being convicted more and more for dangerous driving. That is something I have insisted on throughout the Committee stage. I think that one of our troubles has been that there have not been enough convictions for dangerous driving, irrespective of high speed limits. The most dangerous driving is often in the low speed areas. If we fail on the charge of dangerous driving, we now propose to shift to careless driving, and if we fail on that, we shift to excessive speed, and finally we get the man for going over 30 miles an hour. I do not see why we should charge him with going over 30 miles an hour in the first instance. Perhaps the Solicitor-General will answer my first point as to whether this occurs in other forms of the law.

5.16 p.m.

Photo of Mr Frederick Llewellyn-Jones Mr Frederick Llewellyn-Jones , Flintshire

The introduction of this Clause will certainly facilitate the administration of the Road Traffic Act. Anyone who has had to advise in taking proceedings under that Act has always felt that it would be better if he could decide whether the summons was to be for dangerous driving or for careless driving. It is very difficult, because one offence shades into the other. When the Royal Commission discussed this matter, they came to the conclusion that you could not differentiate between the two, and that careless driving was probably the equivalent of dangerous driving. The legislature thought better, and not accepting the recommendation of the Commission made the two offences of dangerous driving and careless driving. Almost invariably, where a summons has to be issued in respect of an offence which does not appear to be one or the other, the police or their legal advisers have to issue two summonses. What happens? As soon as you get before the court, you have to decide which summons shall be taken. In some cases the defendant or his legal representative states that he is quite prepared that the magistrate should consider the two summonses together and should then decide of which offence the defendant is guilty. In many cases you are faced with a dilemma; if you take the summons for dangerous driving first and it is dismissed, you may have to start on a new hearing for careless driving.

The provision in the proposed new Clause will certainly be of great help in that connection. In some cases it will not be necessary to resort to the procedure which is outlined in the Clause. The defendant or his legal adviser, as soon as he is informed by the court that there will be no ground for convicting for dangerous driving, will agree that the court should take the evidence and come to a decision as to whether an offence has been committed under Section 12 of the Act. The introduction of the Clause will greatly facilitate the working of the Road Traffic Act, so far as dangerous driving is concerned.

5.20 p.m.

Photo of Mr John Llewellin Mr John Llewellin , Uxbridge

In answer to the point raised by the hon. and gallant Member for Wallasey (Lieut.-Colonel Moore-Brabazon) may I say that there are numerous instances in which a man accused of a greater charge can be convicted on a lesser charge. For instance, there is the charge of intent to do grievous bodily harm, as an alternative to which an accused can be convicted, if necessary, of unlawful wounding, or merely of common assault. In the case of breaking and entering into a dwelling-house at night and stealing therefrom, an accused can be convicted not only of that but of breaking into a dwelling-house by day, or he can be convicted of stealing in a dwelling-house, or of simple larceny. There are large numbers of cases of that sort in a criminal court where a man accused of a greater charge can be convicted of a lesser charge.

Photo of Sir William Brass Sir William Brass , Clitheroe

Are those alternative cases at the time, or are they separate charges after the previous one has been dismissed?

Photo of Mr John Llewellin Mr John Llewellin , Uxbridge

The man is indicted on the graver charge, and the court has power to convict on the lesser charge.

Photo of Mr Frederick Llewellyn-Jones Mr Frederick Llewellyn-Jones , Flintshire

Is the hon. and gallant Gentleman not dealing with cases before Quarter Sessions or Assizes? The point here is as to cases before a court of summary jurisdiction where you have to be particularly careful and not duplicate your charges.

Photo of Mr John Llewellin Mr John Llewellin , Uxbridge

I quite appreciate that point, but I understood that the hon. and gallant Member for Wallasey asked whether there were any other instances in the criminal law of this country where a man could be put in jeopardy on two charges at the same time, and I was giving some instances. It is true that those I gave applied only to indictable offences, but there are many more in that category that one could recite.

I support the Clause because I think it will save time and prevent additional trials when you can convict on the lesser charge without having to hear all the evidence a second time. If a man gets off the charge of dangerous driving, a fresh summons has now to be issued on a charge of careless driving, and the whole thing is heard over again, which is not good for the time of the court or in the best interests of the defendant. The only thing I would urge upon the Home Secretary is that he should discourage the police, if he can, when they get these additional powers of alternative conviction, from proceeding on the heavier charge in cases in which before they would have proceeded only on the lighter charge. That is the only danger. The police may say in all cases, "We will start on the charge of dangerous driving, and then"—with the good old English compromise idea—"the magistrates will probably convict for careless driving." I hope that the procedure conferred by the Clause will not lead to that kind of thing. Somebody in this House ought to enter that caveat while the Clause is being passed.

5.24 p.m.

Photo of Mr Barnett Janner Mr Barnett Janner , Stepney Whitechapel and St George's

The argument adduced by the hon. and gallant Member for Uxbridge (Major Llewellin) should be sufficient to induce the House to reject the proposed new Clause. It is important when summonses are issued to let a defendant know what are the charges against him. If he receives an additional summons for careless driving, he knows that he may be charged with that offence as well as with that of reckless or dangerous driving. He is put on his guard. Every person is not legally represented in the courts, and every person certainly would not know if a Clause of this description were in existence that he would be liable to be charged with the commission of the other offence in the event of the larger charge being unproved. It does not matter about advice given by the House. This would not carry very much weight. A Member of the House may urge that if this Clause is inserted the police should not take the graver charge when the lesser charge is the correct one to prefer, but I do not think that such a direction is going to help either the police officer or anyone who is likely to be prosecuted. The reason is very simple. A policeman may not know, at the time when he is charging an individual or when he is applying for a summons, what kind of charge he will be able to prove in the court. Consequently, instead of pressing the lesser one, he would take the graver one.

It is a very simple matter to issue two summonses, if necessary. They can be delivered at the same time, and when the person who is charged appears in Court, he knows what he is being charged with and he has an opportunity of answering the charge. If the prosecution are not sure of their facts, and are going to rely upon something which may come out in the case when it is in court, inevitably only the grave charge will be taken at first. The police will naturally rely upon the graver charge if they know that they may proceed later with the lesser charge of carelessness. This is a serious matter, particularly where the driving licence of a person is involved. The duty is incumbent upon the prosecution to decide whether they have a prima facie case in respect of dangerous or careless driving. In present circumstances, if the two summonses are not issued together, the summons can be issued for the lesser charge at the hearing, but the defendant is invariably given the option of deciding whether the case should be proceeded with forthwith, or whsther he requires an adjournment in order that the case may be proceeded with at a later date. According to the Clause, the matter is left in the hands of the court. I do not say that courts as a rule are unreasonable, but I think it is reasonable to suppose that some courts are not infallible. It may be that the court before which a defendant is being tried wrongly feel that the time of the court should not be wasted, and that it is very much better in the intereests of the saving of time and of expenditure of money that the case should proceed forthwith, without having regard to the fact that the defendant is entitled to a fair opportunity of meeting the case. We ought to consider very carefully before we accept a departure of this description.

In present circumstances there is sufficient safeguard by enabling the court to issue two or three summonses, as the case may be, and calling upon the prosecution to decide beforehand which case it is proceeding with. In these circumstances, I hope that the Solicitor-General will not press for the inclusion of the Clause.

5.30 p.m.

Photo of Mr James Stevenson Mr James Stevenson , Glasgow Camlachie

I should like to know whether the Scottish Law Officers have been consulted on the terms of this Clause. On perusal it appears to me to be contrary to our procedure in Scot land. We have a common practice there of charging a man with an alternative complaint, and, as far as I know, it is very seldom that any person is charged under Section 11 of the Road Traffic Act without there being at the same time an alternative charge of careless driving under the following Section. The de fendant knows that he has to meet both charges, and it is left to the court to decide whether he shall be convicted on either charge. In view of the existence of that procedure in Scotland, it seems to me to be unnecessary that the Clause should be made applicable to Scotland, particularly as it infringes—

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

I am not quite sure that the hon. and learned Member is right in discussing that question on the Motion that this proposed new Clause be read a Second time. There is at the end of the Bill a special Clause, namely, Clause 35 (Application to Scotland), and I think it would be more proper to raise the question when we come to that Clause. It may be in order now just to ask the question whether the proposed new Clause applies to Scotland or not, or whether it requires any alteration or amendment.

Photo of Mr James Stevenson Mr James Stevenson , Glasgow Camlachie

I was going to suggest that the Clause should not apply to Scotland. If you would rather that I deferred what I wanted to say until we come to the Clause dealing with the application of the Bill to Scotland, I am prepared to do so, but I thought it might be more convenient if I stated my objection now.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

I want, as far as I can, to put the Debate in order for the convenience of the House. I think that perhaps the hon. and learned Member was right as regards raising the point as to the application of the Bill to Scotland, and, if that point is answered one way or the other, the question can be dealt with on the later Clause.

Photo of Mr Wilfrid Normand Mr Wilfrid Normand , Edinburgh West

It is not intended that this Clause should be applicable to Scotland, for the reason which has been stated by the hon. and learned Member for Camlachie (Mr. Stevenson), and in another place an Amendment will be put down to deal with that point.

5.34 p.m.

Photo of Mr Walter Greaves-Lord Mr Walter Greaves-Lord , Lambeth Norwood

There is one question that I should like to raise on this Clause. Speaking from recollection, I think that a charge under Section 11 of the Road Traffic Act for dangerous driving is one in regard to which the defendant has the right of electing to go before a jury, whereas a charge under Section 12 is dealt with summarily. Suppose the position to be that a charge is levelled against a man under Section 11, that he elects to go for trial, and that the jury acquit him. Is the position then to be that a fresh charge—as it will be, since it will not necessarily follow that he has ever been in jeopardy on the charge of careless driving—will have to be made, and that fresh proceedings will have to be taken against him in a court of summary jurisdiction for careless driving? In order to safeguard him from the expense of two trials, would it not be necessary to give the court the power, although finding him not guilty of dangerous driving, to find him, upon the same facts, guilty of careless driving? On the other hand, suppose the position to be that an information is laid under Section 11, and another information is laid under Section 12, and the man elects to go for trial under Section 11. What is then to happen to the other information? Is it to be sent back to the court of summary jurisdiction after he has been tried at quarter sessions, in order that the court of summary jurisdiction may then decide that, although he has been acquitted of dangerous and reckless driving, he is nevertheless guilty of careless driving. After all, there are not two sets of facts; the evidence will not be different, whatever the charge may be. The evidence is the same as to what actually occurred, and it may well be that evidence which it was thought at first would justify a charge of dangerous driving proves not to justify it, but an acquittal on that charge should not prevent the starting of proceedings for careless driving. The result of the law as it stands at present is that, if only one summons were issued, it would be for dangerous driving, and if he were acquitted on that charge, and the police saw fit, fresh proceedings altogether would have to be started on a new information, and the man would be put to all the expense of a second trial, possibly before another bench of magistrates. It would seem to be a convenient course that the court which tries the case and comes to the conclusion that the facts do not justify a charge of dangerous driving, but is perfectly clear on the facts that there are grounds for an inquiry as to whether there has been careless driving or not, should say then and there, with everyone present, "The other charge should, in our opinion, be preferred." Moreover, as against the present procedure, where there are alternatives on indictment, it seems to me to be a much more merciful course, because, where there are alternatives on indictment, the defence are not given the right of a second cross-examination and a second speech as to whether the man is guilty of the minor offence; it is all dealt with on the one occasion. A man is charged, say, with unlawful wounding, and the case goes to the jury on that charge, but the jury are told by the judge, "Although you find him not guilty of unlawful wounding, you may find him guilty of a common tort." In these cases there is no such privilege as is given here, of special notice of the minor charge, and the special right to have the evidence over again and a second cross-examination. That is a luxury which has never been dreamt of before. On the same evidence a man may now be found guilty on alternative charges, one of which is greater and the other less; and certainly the new procedure now proposed will be a great advantage 60 the person accused rather than to the prosecution.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

I have to acquaint the House that a Messeage has been received from another place.