Clause 9.—(NOTICE OF ALIBI). (Hansard, 26 April 1967)

§ Mr. Taverne
I beg to move Amendment No. 15, in page 8, line 2, after 'court' to insert 'adduce'.
This is a further drafting Amendment which is very necessary because by one of those mischances which occasionally afflict Standing Committees the main verb has disappeared from the Clause. 1729 The ma in verb "adduce" is necessary and this Amendment puts it back in the Clause.

§ Mr. Taverne
I beg to move Amendment No. 16 in page 8, line 29 at the end to insert: (3) The court shall not refuse leave under this section if it appears to the court that the defendant was not informed in accordance with rules under section 15 of the Justices of the Peace Act 1949 (rules of procedure for magistrates' courts) of the requirements of this section. This Amendment is not a drafting Amendment but one of some substance. It is proposed to fulfil an undertaking given by Committee on an Amendment moved by the hon. Member for Cheadle concerning provision for a defendant to be warned by the committing court of his duty to give notice of an alibi defence. It was thought that some such provision should be made in the Bill rather than in Rules and in particular provision should be made about sanctions if the warning was not given at the proper time.
It is not entirely easy to put the whole thing in the Bill because Rules would be the proper place in which to provide for details about the name and address of a prosecuting solicitor to whom the notice should be sent and other information of that kind, but it was felt that we should meet the wishes of the Committee as a whole by this Amendment which makes clear that there is a statutory obligation to warn and also that if the warning is not given, the court cannot refuse leave to a defendant who produces a late alibi defence. I hope that the Amendment meets the practical difficulties by dividing the provisions of the Bill and the details to be provided for in the rules.

§ Dr. Winstanley
I do not want to appear ungrateful for what has been done. It seems that this Amendment meets the point, but it does so in a sense in a rather roundabout way. The object of the original Amendment was to see that this important change in the law whereby notice has to be given of an alibi, provided that the person was clearly informed that notice had to be given. We are now to include an arrangement whereby the person who has not been so informed shall be provided for. I agree 1730 that this refers to the rules and the fact that warning of a alibi must be given. Since there is reference to the rules, the Amendment meets the point, although in a roundabout way.

§ Mr. Deputy Speaker (Mr. Sydney Irving)
The next Amendment is No. 17 with which I understand the hon. Member for Oldham, West (Mr. Hale) would like to be discussed the following Amendments: Amendment No. 23, in Clause 10, page 9, line 24, at end insert: and where the majority verdict is a finding of guilt that each of the jurors composing the majority was satisfied of the guilt of the accused person beyond all doubt; Amendment No. 25, in line 29, at end insert: (4) In any case in which the jury are empowered to make a finding by majority verdict the minority of the jury shall be entitled to state briefly to the court the reasons upon which the disagreement with the majority verdict is founded; and Amendment No. 26, in line 29, at end insert: (5) In any case in which the jury are entitled to find a verdict of guilt by a majority it shall be the duty of the judge, recorder, commissioner of assize, or other person exercising the functions of a presiding judge clearly to direct the jury that they must arrive at such a majority verdict only when each of such majority is convinced of guilt beyond all doubt.

§ Mr. Hale
In deference to the almost certain wishes of the House, I can see no objection, provided I did not have to abandon my right to catch your eye, Mr. Deputy Speaker, to their being discussed together. I consulted the hon. Member for Cheadle (Dr. Winstanley) and he was good enough to express his agreement.

§ Mr. Hogg
On a point of order, Mr. Deputy Speaker. You said, "the next Amendment, No. 17", which relates to Clause 9. Amendments Nos. 23, 25 and 26 relate to Clause 10 and are about majority verdicts. How could those other Amendments possibly be discussed with this one?

§ Mr. Deputy Speaker
Probably it was the next Amendment. No. 18, that the hon. Member for Oldham, West wished to have discussed with the Amendments I have mentioned. They are more appropriate to be dealt with on Amendment No. 18.

§ Mr. Hale
My Amendments to Clause 10 could all be included, if it suited the 1731 House, in the discussion of Amendments to Clause 10.

§ Mr. Deputy Speaker
I think the House is clear now that we should deal with them when we discuss Amendment No. 18.

§ Mr. Taverne
I beg to move Amendment No. 17, in page 9, line 2, to leave out from 'alibi' to the end of line 5 and to insert: 'means evidence tending to show that by reason of the presence of the defendant at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission'. I make clear that this is a comparatively innocent Amendment and has nothing to do with majority verdicts but with the defence of alibi of which notice has to be given. This is in some ways a drafting Amendment. In some ways it is to meet a point of some substance which was raised in Committee. It is a drafting Amendment in that it makes quite clear what is meant by evidence in support of an alibi in the comprehensive definition. It is made quite clear that the definition should exclude from the Clause and the penalties under it a mere assertion in evidence by an accused that he was not at the scene of the crime when it was committed.
In Committee the Government gave an undertaking to consider the definition of evidence in support of an alibi". Some questions were raised as to what would happen if an accused said, "I just was not there", and if he were asked in cross-examination, "If you were not there, where were you?"
Both these difficulties are met by the Amendment, because it is made clear that a mere negative assertion by a defendant that he was not at the scene of the crime would not be evidence in support of an alibi. My hon. Friend the Member for York (Mr. Alexander W. Lyon) asked what the position would be if, on a defendant's saying, "I was not there", he was asked in cross-examination, "Where were you?" He then would not be adducing evidence. For these reasons, the Amendment meets the case where a defendant simply denies that he was present at the scene. It is made clear that he 1732 does not have to give notice in advance of such a denial.
If a defendant gave evidence that he was at a different place, if he gave descriptions of where the place was, if he said whom he met there, or if he described persons or things he saw there, this would come within the Clause; and it should do so, because this is precisely the sort of defence which one would want to give the prosecution a chance to check.

§ Mr. F. P. Crowder (Ruislip-Northwood)
I am not certain to what extent the onus of proof in this instance is, as happens throughout the Bill, being placed upon the defendant, a new practice which is directly contrary to all the traditions of our criminal law. If the charge relates to an offence which took place two or three years previously, what situation would the defendant then be in?

§ Mr. Alexander W. Lyon
I am sorry to have to disagree with the assertion that the new definition meets the point I raised. I concede that it weights the previous definition a little more in favour of the position which I wanted the Government to adopt, but it does not go anything like far enough to make it clear that the position in which prosecuting counsel asks an accused, "Where were you at the time?", and in which the accused replies, "I was in the Dog and Gun'", is wholly covered by the new definition. The suggestion that such a situation would not give rise to the bringing into operation of the Clause because the accused would not there be adducing evidence, places an interpretation upon "adduce" which I find it difficult to accept.
I submit that any court would hold that an accused who gave evidence that he was at another place at the time of the commission of the crime would be adducing evidence, whether he intended to give this evidence or whether it came out in the course of cross-examination as the result of a direct question. The mere fact that an accused does not call a witness or put the evidence forward in chief does not mean that he is not adducing evidence at that stage. The point I raised in Committee has still not been met.

§ Mr. Crowder
I agree entirely with the hon. Gentleman, but I should be interested to know his view in the case of an 1733 event so long ago that it would be virtually impossible for the defendant to adduce evidence in respect of that date.

§ Mr. Lyon
I take it that he would not be caught by the Clause because, if he simply said, "I do not remember where I was; it is so long ago", he would not be saying that he was in another place at a particular time. He would be caught by the Clause only when, either in answer to his own counsel or in cross-examination—

§ Mr. Sydney Silverman
I cannot follow this. If a man says that he was not in one place, is there not an inference that he was in some other place?

§ Mr. Lyon
I was willing to give the Government the benefit of the doubt in assuming that he would not be caught by the Clause, but my hon. Friend has a point there and it may well be that there is an inference. However, I tend to think, provisionally at least, that he would not be caught unless he said affirmatively at some stage of the trial that he was at a different place at the material time and gave some details of that place. It would not matter for the purposes of the Clause whether he did so in chief or in cross-examination. Once he had done it, he would be caught by the Clause. That is how I understand it.—[Interruption.] With respect, that is what the Clause is about. It is about making a defendant give notice to the prosecution of an intended defence of alibi. If the hon. and learned Gentleman disagrees with the principle of the Clause, he had his chance in Committee.
Once one accepts that it is a proper development to ask an accused person to give notice of an intended defence of alibi, at least when he proposes to call a witness, one then has to go on to ask whether he should give notice also when he alone will give evidence of alibi.
The dilemma here is that in many cases the defendant will give evidence himself almost as an afterthought, almost inadvertently, when pressed in cross-examination and when he has not given it in chief. Obviously, the Government do not want to catch that situation. They want to catch the case of the clever criminal who comes along with a carefully thought out alibi story, for which 1734 he will not call evidence. In parenthesis, I must say that I would never call a witness in an alibi case unless I had to. My experience—others may differ—is that, if one calls witnesses to an alibi, one virtually cripples the alibi. It is always s better, if possible, to rely on the man himself.
I think that there is force in the Government's view, but if we are to elect between excluding the accused himself or including him in this rather bastardised way proposed in the Amendment, I would be in favour of saying that he should give notice only where he proposes to call witnesses in support. On the whole, I think that, unless the Government can come forward with something a bit better later on, their proposal will create great difficulties.

§ Mr. Carlisle
I support the hon. Member for York (Mr. Alexander W. Lyon). The Government's new Amendment on alibi improves the situation compared with what it was in the Bill, but I still say that the terms of the Clause are too wide. I have always thought that the strength of an alibi defence came when one called witnesses in support to prove that the man was somewhere else.
I have always believed that when one talks about the "sprung alibi" one means the case where one calls witnesses to support one's story that one was somewhere else. In those circumstances I believe that it is right that one should be required to give evidence and notice to the prosecution that one is calling people to prove the alibi. The Clause is still too wide because when the defendant may be merely saying, "I was not there", the court may say, as the hon. Member for Nelson and Colne (Mr. Sydney Silverman) said, "We must assume from that that you were elsewhere." It will catch the man who says, "I was not there. I was in the pub." The purpose which the Clause is aimed to meet is too wide and I support the hon. Member for York in hoping that the Government will still think that it is worth while looking at it again before it goes to another place.

§ Mr. Hale
The hon. Gentleman will recall that one cannot say, "I was not there. I was in the pub," because the jury might be teetotal. That was the problem of Frank Lockwood, who first had an 1735 alibi saying that the chap was on the sands at Blackpool buying whelks, which was considered too frivolous; then that he was at the races; and finally that he was burying his mother-in-law, unaccompanied by the undertaker. The judge said, "That's a pretty good alibi", and Frank Lockwood declared, "It was the best of three, and it ought to be."

§ Mr. Carlisle
In the town which the hon. Gentleman represents I have never found any difficulty in putting forward on behalf of clients at sessions that they were in the pub rather than in the area where the offence was committed. I have never found that that met a great deal of resistance from the jury.
The danger with Clause 9 is that we are putting into the Bill provisions which may prevent a man giving evidence on his own behalf because, if he has not given notice, then without leave of the court he may not be allowed to say, "I was in the pub ", or "I was in bed", or, "I was somewhere else." Whereas I welcome the Amendment to the extent that it a least reduces the narrow definition of alibi given earlier, I still hope that the Under-Secretary of State will re-examine it and see whether the Clause could be limited to cases where one is calling witnesses in support rather than the defendant's evidence.

§ Mr. Taverne
I was not entirely clear from the speech of my hon. Friend the Member for York (Mr. Alexander W. Lyon) whether he wanted to safeguard the answer in cross-examination or whether he was concerned about the defendant who gave alibi evidence himself, describing in circumstantial detail where he was, as opposed to stating where he was not. I should have thought that that position in the cross-examination was completely covered by the Clause. "Adduce" means to lead or bring forth evidence, and one cannot describe answers extracted under cross-examination as adducing evidence. From a practical point of view, the sanction is that the court shall not give leave that that evidence be given, but no court will stop a person giving an answer in cross-examination if he is pressed. Therefore, clearly the Clause would in no way affect a person pressed in cross-examination who then gives whatever explanation he can.
1736 I repeat that where the defendant does give circumstantial descriptions of where he was that is precisely an example of the sort of case where one wants to give the prosecution a chance in advance to check up on it, because if it finds that the defendant was there it may well not bring the prosecution at all. If it finds pretty definitely that he was not there, that is evidence to which the prosecution should be allowed to lead at the trial.
For those reasons, the provisions about giving notice should apply to that kind of case as well as where someone calls witnesses. The hon. and learned Member for Ruislip—Northwood (Mr. Crowder) asked how that affects the onus of proof. It does not affect it in any way. It is still for the prosecution to prove its case, and it will be for the defendant to produce his evidence of alibi, if he can, to throw some doubt on that. But in the end the jury will still have to be satisfied that the accused was there. The burden does not shift in any way because of the provisions of the Clause. Whether alibi evidence is two years old, 10 years old or two days old, will make no difference whatever.