CRIMINAL APPEAL BILL [H.L.] (Hansard, 24 May 1966)

HL Deb 24 May 1966 vol 274 cc1324-62 1324

§ 6.10 p.m.

§ Order of the Day for the House to be put into Committee read.

§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

§ On Question, Motion agreed to.

§ House in Committee accordingly.

§ [The LORD DOUGLAS OF BARLOCH in the Chair.]

§ Clause 1 agreed to.

§ Clause 2 [Sittings and practice of Court of Appeal]:

§ THE LORD CHANCELLOR
This is a drafting Amendment to make it clear that "appeal" in Clause 2(3)(b) refers to an appeal from a judgment or order of the High Court. As your Lordships know, it is usual for an application for leave to appeal to be made, in the first instance, to a single Judge. If refused by him, the application may be renewed before the full Court. It is strictly not an appeal, but a further application, although many people, I think, refer to it as an "appeal". The sole object of this Amendment is to make it clear that the paragraph is not concerned with applications renewed before the full Court. As amended, the paragraph would read: an appeal from a judgment or order of that judge when sitting in the High Court or of a court of the High Court of which he was a member.

§ I beg to move.

§ Amendment moved— Page 3, line 26, leave out ("his") and insert (" that judge when sitting in the High Court ").—(The Lord Chancellor.)

1325

§ VISCOUNT DILHORNE
I should like to ask the noble and learned Lord, the Lord Chancellor, just one question. I suppose this is limited to a Judge "sitting in the High Court", in order to distinguish between the Judge and a chairman of quarter sessions, and that the latter will be able to sit in the Criminal Division of the Court of Appeal on an appeal from the court of quarter sessions over which he presided.

§ THE LORD CHANCELLOR
He will not be able to do that. The intention is to remove the old right of a trial Judge to sit on an appeal against his own decision. This is not the modern practice and it would not happen now; but it seems desirable to say so. It was then considered that, as originally drafted, the Bill might be thought to prevent the single Judge from sitting when the full Court was hearing applications.

§ VISCOUNT DILHORNE
I am grateful to the noble and learned Lord. I would ask him to consider whether there ought not to be something to deal with the position of the judge who also sits as chairman of the quarter sessions. I am not sure whether that is covered by paragraph (a) because of the words of the Amendment, which are words of limitation: "when sitting in the High Court". It is really a drafting point and I think there is no difference as to what is desired. I draw attention to it only because the words "when sitting in the High Court" look like words of limitation. It may be covered by paragraph (a), but perhaps the Lord Chancellor will look at it again.

§ THE LORD CHANCELLOR
Yes; certainly I will.

§ On Question, Amendment agreed to.

§ Clause 2, as amended, agreed to.

§ Clause 3 agreed to.

§ Clause 4:

§ Powers of Court of Appeal on determination of criminal appeals

§ 4.—(1) Section 4(1) of the 1907 Act (which requires the Court of Criminal Appeal to allow an appeal, inter alia, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that on any ground there was a miscarriage of justice, subject, however, to a proviso that they may dismiss the appeal if they consider 1326 that no substantial miscarriage of justice has actually occurred) shall be amended as follows:— (b) for the words "on any ground there was a miscarriage of justice "there shall be substituted the words "there was a material irregularity in the course of the trial"; and (c) in the proviso the word "substantial" shall cease to have effect.

§ (2) Neither section 4(3) of the 1907 Act (power of Court of Criminal Appeal on an appeal against sentence to pass another sentence in substitution for that passed at the trial) nor section 5(1) of that Act (power of the Court on a successful appeal against conviction on one part of the indictment to pass another sentence on some other part of the indictment in substitution for the sentence passed at the trial) shall authorise the Court of Appeal to pass a sentence such that the sentence passed on the part of the indictment on which the appellant remains convicted is of greater severity than the sentence passed at the trial taken as a whole, whether or not the last-mentioned sentence was expressed to be passed on that part of the indictment.

§ LORD CONESFORD moved, in subsection (1), to leave out paragraph (b). The noble Lord said: The Committee will remember that on the Second Reading of the Bill the noble and learned Lord, Lord Pearson, while approving the amendment of the law made by Clause 4(1)(a), feared the combined effect of paragraphs (b) and (c), and gave cogent reasons why, in his opinion, that might lead to undesirable consequences. We now have the opportunity of considering paragraphs (b) and (c) in greater detail.

§ I am glad that the noble and learned Lord supports me in my proposal that we should leave out paragraph (b). Why this paragraph appears in the Bill I do not know. The Report of the Committee of the noble and learned Lord, Lord Donovan, did not recommend it, and the noble and learned Lord the Lord Chancellor, in his speech on Second Reading, did not mention this paragraph. Most of the Bill, indeed nearly all of the Bill, is based on the careful Report of the Donovan Committee, but this paragraph is not. I have again read all the relevant paragraphs in the body of the Report, but they give no clue why this paragraph (b) appears. Paragraph 321 of the Report, which sets out the 45 recommendations made by the Donovan Committee, has no recommendation between Recommendation 13, which advises the change made by paragraph (a), and 1327 Recommendation 14, which advises the alteration of the law made by paragraph (c). There is no recommendation in favour of paragraph (b).

§ I expect that the noble and learned Lord, Lord Donovan, may be as puzzled as the rest of us to see it. It certainly is not needed. Nobody, I think, will be found to dispute that, if there were any irregularity in the course of the trial which made the Court wish to allow the appeal, the words of Section 4 of the 1907 Act, as amended by paragraph (a), will certainly give ample power to allow the appeal. The change proposed in paragraph (b) makes no improvement, I think, in the wording of the section of the 1907 Act, and I beg to move the deletion of the paragraph.

§ Amendment moved— Page 5, line 10, leave out paragraph (b).—(Lord Conesford.)

§ 6.20 p.m.

§ LORD PEARSON
I support this Amendment, though I am open to persuasion. If some explanation is given as to what good results are expected to follow from paragraph (b), I am willing to be converted; but on the face of it the objection to paragraph (b) is that it seems to be almost urging people to bring forward appeals on purely technical grounds and with no merits at all. The existing wording which is proposed to be superseded is … on any ground there was a miscarriage of justice. … That means a substantial wrong, and that is obviously a good ground of appeal. But it is proposed to substitute the words a material irregularity in the course of the trial". And it is very easy for an irregularity to occur in the course of a criminal trial where the procedure is of a somewhat elaborate character and in some respects artificial. A good example of artificiality can be drawn from the Report of the Donovan Committee. That appears from paragraphs 67 to 69.
There is a mysterious thing called the allocutus with which some of us are very familiar. That means this: that after conviction and before sentence it is right for the clerk of the court to say to the convicted person, "Have you anything to say why the judgment of the court 1328 should not be passed on you?" In my experience over some years, the convicted person never had the least idea, and it may be nobody else had either, what he was expected to say in answer to that question, what reason he could possibly have at that stage, when he had been convicted, for saying no sentence should be pronounced. And in every case of which I had experience the unfortunate convicted person did not know what to say and he certainly never had anything significant to say. So in practically every case the omission of the allocutus would do no practical, real harm whatsoever, but it would be obviously an irregularity because it would involve the omission of a part of the procedure which ought to have been duly carried out. And secondly it could be presented, at any rate, as a material irregularity because the convicted person ought to have had the opportunity of saying something in answer to that supposed question and he was deprived of that opportunity. That is a material irregularity and it is prima facie a good ground of appeal. It is true the appeal might be dismissed under the proviso to the section, but we have still to find what this Bill is going to do to the proviso, how much weaker the proviso is going to emerge as a result of this Bill.
In any case, I would venture to submit it is not a good thing to encourage appeals on merely technical grounds, mere matters of form of this kind. The old wording was that the ground of appeal, so far as we are concerned at the moment, was "a miscarriage of justice". That wording gives a much better idea of what the right reason for appeal ought to be, and I therefore submit, unless there is some explanation, this paragraph (b) on page 5 is a step in the wrong direction and ought to be omitted.

§ LORD PARKER OF WADDINGTON
It seems to me that there are two questions involved in this Amendment. The first one is whether the words "on any ground there was a miscarriage of justice" should be deleted and something else substituted. The second is whether what it is proposed to substitute is right. In regard to the first point, I find it very difficult to carry the original provision and the provision as amended in mind. Like the noble Viscount, Lord Colville of Culross, on the last occasion, I have 1329 had the original section typed out and also typed out next to it the law as it is proposed to be.
One of the troubles was that the original section, which none of us perhaps have read heretofore with the care with which it should be read, provided that the court of Criminal Appeal shall allow an appeal on one of three grounds. One was that the verdict was unreasonable and could not be supported, and for that will now be substituted paragraph (a)—"under all the circumstances of the case it is unsafe or unsatisfactory ". That was the first ground. The second ground was that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law—what I think the lawyers would call a misdirection. And the third provision was "or that on any ground there was a miscarriage of justice". I should have thought a miscarriage of justice meant what it said: a wrong conviction, something which caused the prisoner to be wrongly convicted; and the trouble then was how the proviso linked up with that, because the proviso goes on to say that nevertheless the court may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.
I think the reason for the word "substantial" was to draw a distinction between "substantial miscarriage" in the proviso and just "miscarriage" in the effective part of the section. Of course, if, as I think is right, in the first part of the section "miscarriage of justice" means what it says, that justice has gone wrong and there is a wrong conviction, then whether the proviso carries the words "substantial miscarriage" or just "miscarriage" it just does not bite; it can only bite on a misdirection in law. Therefore, it seemed to me at any rate that as a pure matter of drafting it would be wrong to allow these words "on any ground there was a miscarriage of justice" to remain in the Section. That explains, I think, how it was suggested that these words should be deleted.
The second question is whether it is right to substitute for them that "there was a material irregularity in the course of the trial ". If nothing is substituted the court only has power to set the verdict aside if there was a misdirection or it is 1330 unsafe to allow the verdict to stand, the matter going to evidence. And there is case after case—I am not thinking of technical matters like the allocutus—that comes before the court where there has undoubtedly been irregularity which is not technical. "A material irregularity," I venture to suggest, is used in contradistinction to a technical irregularity.
We had a case only the other day where for a three-day trial the prisoner was brought every day in a taxi from the prison and taken back in the evening by no less a person than the foreman of the jury. Obviously, there is an irregularity, and room for a very material irregularity, though it might well be cured by the proviso. If, in fact, neither knew who the other was and did not overhear any conversation, it might be perfectly safe to allow the verdict to stand. Day after day there are irregularities at the Central Criminal Court, in this day and age, any amount of irregularities, where jurors are concerned, all of which are material irregularities, some of which will cause the verdicts to be quashed and others to which the proviso could be applied. Therefore, I suggest that as a pure matter of drafting and common sense the words "on any ground there was a miscarriage of justice" cannot stand with the words in the proviso, and that the words "there was a material irregularity in the course of the trial" are a fair substitute to cover the many irregularities of the sort I have mentioned which may arise.

§ 6.29 p.m.

§ VISCOUNT DILHORNE
I have listened with great interest to the information given by the noble and learned Lord, Lord Parker of Waddington, and the reason why he thinks the words "on any ground there was a miscarriage of justice" should go and fresh words should be substituted for them. He suggests there is really a conflict in the clause as it stands between the words "on any ground there was a miscarriage of justice" and the proviso. He bases that argument, if I follow it correctly, on the interpretation he gives to the words "miscarriage of justice ". He says they can only mean that a man has been wrongly convicted. With the greatest respect to the noble and learned Lord, I should have thought that that is placing upon those words a narrow and restricted interpretation.
1331 Suppose that in the course of the trial a man who has not put his character in issue is cross-examined as to previous convictions. He may or may not be guilty of the offence charged; but would it not be said by any appellate tribunal that allowing him to be cross-examined as to character when he had not put his character in issue was a miscarriage of justice? If that view be right, then the words "miscarriage of justice", as I have always understood them (and I have read this section on many occasions) have a wider connotation than merely suggesting that someone has been wrongly convicted. If it has that wider connotation, then surely there is no conflict at all between the words in the body of the section and the proviso.
I, for one, would find it difficult to suppose that even in 1907 Parliamentary draftsmen would in one clause draft a patent contradiction in terms. So I must say that for myself I do not think that a case has been made out for the removal of the words "miscarriage of justice ", and I cannot recollect any criticism of that expression in the body of the Report of the noble and learned Lord, Lord Donovan. I think it would be much better for those words to stay, provided it is understood that they really should not be given such a narrow and limited interpretation as to mean that that particular part of the section can be used only if the court is of the opinion that there has been a wrong conviction. I entirely agree with the noble and learned Lord, Lord Parker of Waddington, that if that is the correct meaning it becomes extremely difficult to apply the proviso. That reinforces my feeling that it cannot be the correct meaning. It cannot be right to give such a narrow meaning to the words "miscarriage of justice".
As to the words "material irregularity in the course of the trial ", I think the noble and learned Lord, Lord Pearson, has put forward valid reasons for not liking those words. The noble and learned Lord, Lord Parker of Waddington, has distinguished between what he calls a material and a technical irregularity. But I would pose this question: material in what context? Who is to be the judge of materiality? No key is given to that in this proposed new formula. I suppose what is meant is, 1332 material in the sense of seriously affecting the conduct of the trial and so affecting the conclusion the jury might reach. But then, if that be so, it is material in bringing about a miscarriage of justice, because the man will not have been justly tried if that has happened. Therefore, when you consider what the word "material" means, you are brought back, it seems to me, to consider whether the irregularity, such as it is, was material in contributing to, or bringing about, a miscarriage of justice.
Therefore, I see no advantage whatsoever in the insertion of this new formula, and I think we should hesitate long before we accept this suggestion not put forward by the noble and learned Lord, Lord Donovan, and, if I understand aright, a suggestion which really is entirely based upon giving a most restricted view to the words "miscarriage of justice".

§ 6.34 p.m.

§ LORD TUCKER
I feel some diffidence in rising to address your Lordships on this matter, having regard to the fact that it is now more than twenty years since I sat in the Court of Criminal Appeal; and all the more so when I find myself dealing, or endeavouring to deal, with a difference of opinion between my noble and learned friend Lord Parker of Waddington, the present Lord Chief Justice, and my noble and learned friend Lord Dilhorne, the former Lord Chancellor. Having heard both, I wish from my experience of the Court of Criminal Appeal, although it is now twenty years old, to support the view taken by my noble and learned friend the Lord Chief Justice.
I found, when I was in the Court of Appeal, that again and again we were unable to make use of the proviso because decisions had been made in the past which prevented the Court of Criminal Appeal from exercising what I call a robust supervisory jurisdiction over the proceedings and coming to a decision themselves on whether there had been a miscarriage of justice, after an investigation of the trial. They were prevented because of decisions which had been passed and which said that the Court must have regard to what a reasonable jury, properly directed, might, or would, or must inevitably, have done—because those are all expressions which have 1333 occurred in the various decisions on the proviso, and two or three of them were in your Lordships' House. In my view, the net result of that was not to assist the Court of Criminal Appeal but to make it more difficult to apply the proviso.
If the words which are now in the Bill, and which are supported by my noble and learned friend Lord Parker of Waddington, stand, I think that the task of the Court of Criminal Appeal will be assisted, for the reason, as he pointed out, that there is this apparent contradiction between the reference to a miscarriage of justice in the first operative part of the section, and then, in the proviso, the words "substantial miscarriage of justice".
I think it would be much easier now to have the words "material irregularity of the proceedings". Then you have the proviso operating on that; you cut out the word "substantial", which to my mind means nothing, and you have the position in which the Court of Criminal Appeal would be dealing with a case, such as that put by my noble and learned friend Lord Dilhorne, of someone who has been cross-examined as to his previous convictions, where there would obviously be a material irregularity. Then the court would have to decide whether, in those circumstances, they could apply the proviso. I should think that they could not apply the proviso in a case of that kind, because there would have been a miscarriage of justice.
In my view, a miscarriage of justice not only means that an innocent man has been convicted (which is a thing which interests the public more than anything else, and which was one of the reasons why the Court of Criminal Appeal was set up); it also involves, as we have found when we have been exercising our criminal jurisdiction in the Privy Council, that the words "miscarriage of justice" can be applied also to a case where the proceedings have not been carried out in accordance with what we regard as the elementary essentials of justice: that a man has not been given the right to put his own case; that a man has not been given the right to call his witnesses. There are certain matters of that kind which would be covered by the words "miscarriage of justice" as being something which really 1334 does not represent a trial at all, according to British law.
I think that these two clauses in the Bill will strengthen the position of the Court of Appeal rather than weaken it, and will give them an opportunity, notwithstanding what has been said in some of the previous decisions, of applying the proviso more often than they are able to do at present.

§ 6.39 p.m.

§ LORD DONOVAN
I rise not so much to make a speech as to ask a question. If this clause be passed, someone in due course has got to decide what is a material irregularity, and that person will be the Criminal Division of the Court of Appeal. I take a "material irregularity" to mean something which may have affected the verdict of the jury to the prejudice of the appellant. If that be so, why is that verdict not unsafe or unsatisfactory?

§ 6.40 p.m.

§ THE LORD CHANCELLOR
I suppose I ought to say something, although I am only going to say what the noble and learned Lord, Lord Parker of Waddington, has already said, and I am sure I shall not say it nearly so well. It is a pity that we cannot take Amendment No. 3 before Amendment No. 2. The noble Lord, Lord Conesford, if he will forgive me for saying so, is always logical. In Amendment No. 3, he disagrees with the unanimous recommendation of the Donovan Committee that the word "substantial" should be removed. If he is right as to that, then he is right as to this. The wording here in question is the only thing in this Bill which is not simply implementing a recommendation of the Donovan Committee.
The reason why it is in the Bill is simply that if you are going to take out the word "substantial", and if paragraph (b) in the Bill is not there at all, if the rest of the section is left as it is, then you are left with the situation that The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if … on any ground there was a miscarriage of justice followed by a proviso saying that, although they think there has been a miscarriage of justice, they may dismiss the appeal if they do not think there has been a miscarriage of justice. This just makes a nonsense. You could not simply 1335 implement the recommendation of the Donovan Committee by leaving out the word "substantial" and not do anything about the preceding part of the section, because the distinction which at the moment exists, that you may think there is a miscarriage of justice but you may nevertheless dismiss the appeal if you do not consider it is a substantial one, makes sense. But if you take out the word "substantial", you are simply left with the situation that you are to allow the appeal if you think there has been a miscarriage of justice, but although you think there has been a miscarriage of justice you can dismiss the appeal if you do not think there has been a miscarriage of justice. Therefore, obviously some change in the earlier wording had to be made.
I can well understand any view that this is not the perfect wording. I am encouraged by the view of the noble and learned Lord Chief Justice that he thinks this wording is about right. But one could not leave the thing as it is. If a later Amendment succeeds, in which the word "substantial" is not taken out, then one does not need paragraph (b) at all; the whole section would remain as it is on this point. But that is the reason for it. As I said, I thought that I should not put it as well as the Lord Chief Justice, but the object of the subsection is to ensure that the accused person does not suffer from a mistake or irregularity which took away or materially affected his chance of being acquitted, but that he does not escape conviction merely because of a mistake or irregularity which did not have this effect. I should have thought that the rewording of the subsection achieves this, and in doing so does no more, in effect, than follow the practice of the Court. For those reasons, which are in substance the same reasons put forward by the noble and learned Lord, Lord Parker of Waddington, I hope that the noble Lord, Lord Conesford, will withdraw his Amendment.

§ LORD CONESFORD
I am most grateful to all noble Lords who have taken part, including the noble and learned Lord, the Lord Chancellor. I think that it was well worth while to make the point that this was not a recommendation of what I think is agreed in every section of the Committee to be a most careful 1336 Report. I am, I hope, sufficiently modest not to press any such Amendment in the face of the very strong and lucid opinions which have been expressed. I think that conceivably it may become necessary to return to this matter at a subsequent stage in the light of whatever we do with the next Amendment. Having made that clear, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 6.45 p.m.

§ LORD PEARSON moved, in subsection (1), to leave out paragraph (c). The noble and learned Lord said: We had a most interesting discussion on the previous Amendment which has certainly thrown light on this one, but I think that I must still put this Amendment forward because apparently this is the real matter in issue, whether it is right to delete the word "substantial" from the proviso. Your Lordships will observe that paragraph (c), on page 5 of the Bill, proposes that in the proviso the word 'substantial' shall cease to have effect". I am contending that the word should continue to have effect, and that is the issue. The proviso is summarised, although not fully set out, at the top of page 5, in parenthesis. Your Lordships might like to have the full wording of the proviso, which I will read: Providing that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice had actually occurred". The report of the Donovan Committee, in paragraph 164, recommended that the word "substantial" should be deleted as being devoid of any practical meaning, and paragraph (c) would give effect to that recommendation of the Committee.

§ I venture to object to that proposal on three grounds. First, I venture to differ from the Committee in their views as to the significance or lack of significance of the word "substantial" in the proviso as it now appears in Section 4 of the 1907 Act. I must say that, as I have always read that proviso, I have always understood the whole stress and emphasis of it to be on the word "substantial". The meaning was that the court was to have regard to matters of 1337 substance rather than matters of mere form. So as I have always read that proviso, the word "substantial" is the important word, and if that is right it ought to be retained, or I suppose it should.

§ Secondly, supposing I am not right on that, there is the further reason that if you strike out the word "substantial" it will acquire significance by being struck out. It will lead to an obvious argument in any court of law, to this effect: "Parliament in the year 1966 went out of its way to strike out the word 'substantial' from the proviso. It is not to be supposed that Parliament was engaging in a mere philological exercise. There is an alteration of the wording which must convey an alteration of meaning, and one can see what the alteration of meaning is. Hitherto, a conviction would not be quashed unless there was a substantial miscarriage of justice. But that is now changed. It is no longer necessary that there should be a substantial miscarriage of justice. Any miscarriage of justice whether substantial or not will be sufficient. It means that the proviso is weakened and cannot be so frequently applied in the future as it has been in the past." I am not saying that that argument would necessarily succeed, for it might well fail, but it is a pity to introduce wording which lays the foundation for an argument of that kind.

§ Thirdly, the word "substantial" has been sitting happily in the proviso ever since the proviso began its life in 1907. It has been there for nearly fifty years; it has not done any harm to anyone; and if one view as to the meaning and emphasis of the clause is correct, it has been doing a great deal of good. In my submission, it would be wrong now to tear this word out of the proviso and throw it away. It is a useful word, and I venture to submit that no useful purpose would be served by now getting rid of it.

§ Amendment moved— Page 5, line 14, leave out paragraph (c).—(Lord Pearson.)

§ LORD CONESFORD
In briefly supporting the noble and learned Lord, I only wish to draw attention to two matters. The first is that it is made clear in the Report that it is only because the word is regarded as surplusage that it is proposed to strike it out. No other 1338 reason is given. That is strengthened by the actual wording of Recommendation (14), which says: The proviso to section 4(1) of the Act should be retained in its present form (subject to the deletion of the word 'substantial' which at present qualifies the reference to miscarriage of justice) and there is no occasion for any statutory amendment to alter the construction now placed upon it. In other words, that strengthens from the words of the Report itself what the noble and learned Lord, Lord Pearson, has just said; that it has done no harm at all in the way in which it is now and has always been interpreted. For that reason I support what my noble and learned friend has said.

§ 6.51 p.m.

§ LORD DONOVAN
Perhaps, as the villain of the piece, I might say a word or two as to why the Committee made this recommendation. It was simply that we thought the word "substantial" was otiose and that if the 1907 Act were going to be amended this opportunity might be taken to delete it. It is quite easy to see how the word got there. If one reads the debates of 1907, one finds that there were many in Parliament who were very uneasy indeed about granting a right of appeal at all from the verdict of a jury in a criminal case. They foresaw all sorts of dire consequences. Accordingly, when dealing with a possibility that the guilty person might get off on some objection which was technically good but morally worthless, the sponsors of the Act of 1907 went out of their way to quell such fears, even if it meant indulging in a little nervous tautology. Such an appellant might establish his point, but his appeal nevertheless was not to be allowed unless a substantial miscarriage of justice had occurred—and not merely had occurred but had "actually" occurred.
In the circumstances of the time some excess of caution was of course understandable. No one knew how this new court would construe and administer the Act, and a little emphasis was not out of place at the time. But now that, not 50 but 58 years of practical experience lie behind us, it is clear that the word "substantial" in this particular context is not only without practical significance but, in the opinion of some, unfortunate.
1339 How in practice does the matter arise? The appellant before the court has established his point. The court now has to consider whether it will allow the appeal and set him free, or apply the proviso and keep him confined. It accordingly poses to itself this question: Suppose this particular fault had not occurred at the trial, nevertheless, on all the evidence, could any reasonable jury after a proper summing-up have failed to convict? If the answer is, "No", the appeal is dismissed. If the answer is, "Well, they might reasonably have acquitted ", then the appeal is allowed.
In 1944 your Lordships' House laid down that that was the right test and embodied the right construction of the proviso. By dealing with the matter on those lines, the court, if it dismisses the appeal, makes plain its view that justice was done by the verdict of the jury despite the fault; in other words, that justice has not miscarried. But the introduction of the word "substantial" as an adjective qualifying the term "miscarriage of justice" suggests that there is some alternative, so to speak, in between. In other words, the court might say to an appellant, "Yes, you have established your point and we think you have suffered a miscarriage of justice. But it is only a very small one and therefore we dismiss your appeal." The miscarriage of justice, in other words, has not been substantial.
I can understand adjectives like "small", "insignificant", "insubstantial" and so on being applied to irregularities in the course of a trial, but if there has been a miscarriage of justice then by definition justice has not been done and the whole exercise has failed. If a man in such a case received a heavy sentence like poor Mr. Adolf Beck, we would talk of a gross miscarriage of justice. If he had merely been dismissed with a caution we might speak of a minor miscarriage, but we should then be talking of consequences. If justice has gone astray a miss is as good as a mile, and applying adjectives to such a situation does not alter the situation any more than it did when the maid admitted to her mistress that she had had an illegitimate baby but it was a very small one.
1340 I would respectfully suggest that in this matter there is really no half-way house. There is either a miscarriage of justice or there is none, and the proviso should operate accordingly. The presence of the word "substantial" in the proviso has no effect upon this situation. Moreover, it makes the section inconsistent with itself, because as the law now stands, and has stood since 1907, the main part of the section as we have heard directs the court to allow the appeal if on any ground there has been a miscarriage of justice. So in the main part of the section an appellant succeeds if there has been any miscarriage of justice.
Can it really be that under the proviso, which only operates if the appellant has established his point, he has got to do something more and prove that the miscarriage had a particular quality—namely, that it was substantial? I suppose his answer would be, and could only be, "What miscarriage of justice is not?" In all the cases that I have read, and in all the cases of which I was a judge, no distinction has ever been drawn between one kind of miscarriage of justice and another so far as its inherent quality is concerned; and in the case of your Lordships' House which established the true construction of the proviso the word "substantial" was omitted, presumably as being otiose.
As Lord Simon, when he was Lord Chancellor, said in the case of Stirland v. the Director of Public Prosecutions, which is the locus classicus upon this matter: No reasonable jury, after a proper summing-up, could have failed to convict the Appellant on the rest of the evidence to which no objection could be taken. There was therefore no miscarriage of justice, and this is the proper test to determine whether the proviso to Section 4(1) of the 1907 Act should be applied. So that the "proper test" can be applied without the use of the word "substantial" at all. Of course, there are passages in other courts where judges have used the word "substantial" in this context, but that is simply because it is there in the proviso. No one has ever said, so far as I know, that it makes any difference. I would certainly concede that, if there were any real danger that, by striking it out, some change would thereby be 1341 imported which would weaken society's defences against the criminal, then the word should stay; but how can that be when, for years past, the decisions applied by the courts have not relied on the word at all, and when the authoritative construction put upon the proviso in this House omits it? The question will still be, as in practice it is now: has a miscarriage occurred or not? If it has, it ought to be put right: if not, no question arises.
I said there were some who regard the presence of the word as unfortunate. The Law Society which, through its solicitors, has an unrivalled practical experience of the working of this Act, gave evidence before the Committee, and these are the words they used: The Council further believe that the inclusion in the proviso of the word substantial is unfortunate. No doubt what Parliament had in mind is that an insignificant breach or omission would not cause a miscarriage of justice and thus enable the proviso to be operated. It is inconceivable that the Court of Criminal Appeal would, as they might on a strict construction of the present proviso, hold (a) that there was a miscarriage of justice but (b) since it was insubstantial they would apply the proviso. It is the view of the Council that the word 'substantial' should be deleted from the proviso, and if the Court of Criminal Appeal considers that no miscarriage of justice has occurred the proviso should be applied and the appeal dismissed. I respectfully agree, as did all my colleagues on the Committee, with that conclusion, and I hope that the exclusion of the word will be maintained. It is not a good thing to have in an Act of Parliament a word which in its context is, at best, useless and, at worst, confusing; and if, in addition, it has no practical advantage, we may as well bid it farewell. One might say the same, perhaps, of the word "actually" where it occurs before the word "occurred", but perhaps "sufficient unto the day".

§ 7.3 p.m.

§ VISCOUNT DILHORNE
I must say that I find this a very difficult matter. I think the noble and learned Lord, Lord Donovan, has made out a very powerful case for the removal of the word "substantial", but I am not sure that the real difficulty does not arise from the use of the words "miscarriage of justice" when people use them meaning entirely different things. The noble and learned Lord, Lord Parker of Waddington, said 1342 a few moments ago that they meant when someone had been wrongly convicted, and the noble and learned Lord, Lord Tucker, said that one often spoke of a miscarriage of justice when something had gone wrong in the course of a trial. I suppose that, in one sense, any irregularity during a trial is a miscarriage of justice, although it may not result in an innocent person being wrongly convicted or a guilty person being wrongly acquitted.
I must say that I have always read this section as if the words "miscarriage of justice" applied not only to the end result but to what happened in the course of the trial. Only with that interpretation did it seem to me that one could really reconcile the proviso with what had gone before. The words "miscarriage of justice" do create a difficulty, because I think that what was really contemplated was that, although the court should allow the appeal if something of a serious character had gone wrong in the course of the trial, none the less if it was not of a serious character (and I am using very colloquial language) the proviso could be applied and the conviction upheld.
I do not know that at this late hour we can finally resolve this matter, but I should like to suggest to the noble and learned Lord the Lord Chancellor that the whole language of this clause might be looked at again. I do not myself think it is very safe, for the reasons given by the noble and learned Lord, Lord Pearson, just to omit the word "substantial", coupled with the insertion of the words in paragraph (b), because I think there is a very real risk indeed that it may be held that the effect of this deletion means a very considerable narrowing of the instances in which you can properly apply the proviso. At least, putting it at its lowest, I feel there would be considerable doubt about that.
I do not know whether it would be possible to draft a provision, possibly at greater length, which made more explicit what I think is the common intention of all who have spoken in relation to this particular provision. Although we may disagree about the interpretation of particular words and about whether a word serves any useful purpose or not, I for myself do not believe that there is any disagreement about what 1343 we want to achieve. I would have hoped we want to achieve. I should hope that, if Parliamentary counsel could start with a clean sheet of paper and perhaps forget about the words used in 1907, and could re-draft this provision, we might get a provision which was satisfactory to everyone and which achieved what was wanted. I think there is a clear idea of what is wanted, but I doubt very much whether these piecemeal amendments will produce the desired result.

§ LORD PARKER OF WADDINGTON
I quite agree with the noble Viscount that a case could be made out for redrafting the section completely, and I have often thought that there were advantages in that; but, at the same time, I think that any advantage which would accrue must be weighed against the real advantage of the fact that this clause has been in existence and has worked, and on the whole worked well, for some 59 years. The words have become hallowed by cases; and, quite seriously, as to whether the word "substantial" is here or not, I could not care less. The Court of Criminal Appeal will continue to administer the provisions of this section as they see fit, whether the word is there or not. They will continue to do what they have done in the past. On the whole, I should have thought the advantage was in leaving it.

§ LORD AIREDALE
I wonder whether, in sixty seconds, I could pick a quarrel with the expression "cease to have effect". I have listened very carefully to this debate, and, as I understand it, the justification for paragraph (c) is that the word "substantial" has no effect, that it never has had any effect in this context and, therefore, it is superfluous and can be omitted. If one does that in words which say "'substantial' shall cease to have effect", does that not lead people to suppose that, up to now, "substantial" has had some effect, and that the effect that it has had up to now shall henceforward cease? Could we not possibly redraft this very short paragraph to say that the word "substantial" shall be repealed, or use some expression which does not lead certain people to suppose that it is now being deprived of some effect which it has had up till now?

§ LORD DENNING
I would say only one word. In the past the proviso has 1344 not been used as robustly as it ought to have been. Indeed, that means that there is a strong case for reconsidering the whole of this clause and not adhering to the formula of the past; for trying to redraft it in a better way and for perhaps giving the Court of Criminal Appeal more power to see that no technicalities or misdirections which do not affect the justice of the case should interfere with the decision. I should prefer, on the whole, to see an attempt to redraft it.

§ THE LORD CHANCELLOR
On the last point, the one raised by the noble Lord, Lord Airedale, the phrase "cease to have effect" is the normal formula for founding a repeal; the actual repeal is done by Schedule 3.
When a Committee of busy people take a lot of trouble and a long time to produce a Report—particularly if they produce a unanimous one—I should think that ordinarily it should be the business of Government to bring this before Parliament. It is not necessary for a Government to have a passionate view on every point. This was a unanimous recommendation of the Committee, and for myself I can only say that having read the Report it seemed to be right; and having heard what the noble and learned Lord, Lord Donovan, has said this afternoon it seems to me still more right.
I have given careful consideration to the clause as a whole. I can see there might be some advantage in starting all over again, in repealing the whole clause and drafting something new; on the other hand, I would urge the Committee to reflect on the view of the noble and learned Lord, Lord Parker of Waddington, that there is a great deal to be said for keeping what you have when everybody knows what it is and when you are used to it. It did not seem to me then, and it does not seem to me now, that I should be justified in trying to redraft the whole clause in some new way which might only give rise to further problems of interpretation. I would invite the Committee to take the view that this Amendment ought not to be made, in particular for the reasons which were given by the noble and learned Lord, Lord Donovan, in the course of his observations to the Committee.

1345

§ LORD PEARSON
In view of the course of the discussion, and in view of the strong and weighty opinions expressed, I do not wish to press this Amendment, and I ask for the Committee's leave to withdraw it.

§ Amendment, by leave, withdrawn.

§ 7.13 p.m.

§ VISCOUNT DILHORNE moved to leave out subsection (2) and to insert instead: (2) On any appeal against conviction the Court shall have the like power to quash the sentence passed and to pass another sentence as the Court has in the case of an appeal against sentence.

§ The noble and learned Viscount said: Even at this late hour, I should like to put this Amendment before the Committee, because I think it raises a matter of considerable importance. Subsection (2), which this Amendment proposes to leave out, seeks to prohibit the Court of Appeal from passing a severer sentence than that passed at the trial. The first question I should like to ask the noble and learned Lord the Lord Chancellor is in relation to line 25, where one finds the words: is of greater severity than the sentence passed at the trial What exactly is meant by that phrase? It is perfectly understandable in relation to sentences of imprisonment; but how is one to compare the imposition of a fine with imprisonment? Is any fine, no matter how large, to be regarded as less severe a sentence than, say, a month's imprisonment? It may be that the provision is intended only to relate to sentences of imprisonment or sentences involving loss of liberty. If so, I feel that that should be made clear beyond doubt, because I cannot otherwise see how you can easily assess the comparative severity of fines and sentences at all.

§ But my objection to this provision goes much deeper than that. I said on Second Reading that I think the present system with regard to increasing sentences in indefensible and has been so for many years. I entirely agree that it is wrong that the court should have power to increase a sentence only when the appellant appeals against the sentence in the belief that it is too heavy. I agree with the Report of the Committee of the noble and learned Lord, Lord Donovan, on that. But for years past we have been seeking 1346 to get greater uniformity of sentences. When a case comes before the Court of Criminal Appeal and the sentence is obviously grossly inadequate—that is to say, when there has been an error of a serious character in sentencing by an inferior court—it seems to me quite wrong that the appellate court has no power to put that error right unless the appellant himself has been so misguided as to appeal against sentence. It seems to me that the right change to make in the law is to make it similar to what has been in the law in Scotland since 1926 and in Northern Ireland since 1930. For 40 years the appellate court in Scotland has had the power to increase sentence in any case which comes before it; and this has been so for 36 years in Northern Ireland.

§ I would ask the noble and learned Lord the Lord Chancellor whether he could give us any information as to how those provisions work in the rest of Great Britain and Northern Ireland. I have never seen a word of criticism directed to the court having power to increase sentence when there is an appeal against conviction. Has there been any criticism by any body engaged in law reform? Has it worked badly? Has it produced adverse consequences in relation to the appellants, apart from the possibility that their sentences are corrected? If this Bill is passed in its present form criminals in England will enjoy an advantage over those in Scotland and Northern Ireland in that they will be able to appeal against conviction without any chance of having their sentences increased.

§ I think it is a powerful argument in support of my proposal that it will, if accepted, produce uniformity in the law in Great Britain and in Northern Ireland. This was considered by the Donovan Committee and is, in fact, referred to in paragraph 201. From that, the Committee will see that the Amendment I am putting forward met with the support, as the Committee reported, of two judicial witnesses of much experience. They thought that the Court of Criminal Appeal should have this power which Scotland and Northern Ireland enjoy. But the Report went on to say: We are not able to share this view. Apart from its being a complete break with the system which has now been in force for over half a century, the number of cases in which the sentence would be increased would, judging from experience, not be worth the additional work involved. 1347 I am rather puzzled by that, because, first of all, the argument about "its being a complete break with the system which has now been in force for over half a century" does not seem to me to he very convincing when you have had the other system operating in one part of Great Britain for 40 years and in another part for 36 years. Have they been working all right?

§ Then the argument goes on that "the number of cases in which the sentence would be increased would, judging from experience, not be worth the additional work involved." What experience is being judged from there? It cannot be experience in England, because sentences are not increased on appeals from conviction; there is no power to do so. Of course, sentences are seldom increased because there are very few appeals against sentences where there is any risk of that happening. Does this reference to "experience" relate to Scotland and Northern Ireland? It would be interesting to know.

§ Next there is the reference to its not being worth the "additional work involved". What additional work, in fact, would be involved? Surely on every case where there is an appeal against conviction the members of the Court know what sentence has been passed and for what offences; they know for what the man has been convicted; and I daresay in the vast majority of cases—and I hope it is so—there will be no gross error in the sentence that has been passed. In all those vast majority of cases there will not be any additional work involved; it will only be in the exceptional case where something has gone seriously wrong that any additional work will be imposed on the Court. It goes on to say The court would be looking at a considerable number of sentences only to refrain from interfering. Those are the sentences in the course of dealing with appeals against conviction. The paragraph continues: In those cases where the sentence ought to be reduced it is a reasonable expectation that the prisoner himself would be found appealing not only against conviction but against sentence also. I am not dealing with the case where the sentence ought to be reduced; I am 1348 dealing with the case—and the argument, as I thought, was dealing with the case—where it ought to be increased.

§ The final argument put in the Donovan Report against this proposal is this: One undesirable feature of the innovation would also be that some meritorious appeals against conviction would not be prosecuted because of fear that, in the event of failure, the sentence might be increased. But what has been the experience in Scotland and Northern Ireland in relation to that? Is that a really valid argument for not giving the Court of Appeal power to correct something which is obviously wrong?

§ Perhaps the most powerful argument which can be put against this is that errors can be corrected only in cases in which there are appeals to the Court of Appeal; and although the number has increased so very much in recent years, it still forms a very low proportion of the total. The argument was advanced that if we were to give the Court the right to increase a sentence, we should have to give the prosecution a right of appeal to the Court to have a sentence increased. I am absolutely and utterly opposed to that, because the prosecution is in no way concerned with a sentence which is passed by the court: it is none of their business.

§ But I am wondering very much (this goes, perhaps, beyond the particular proposal in the Amendment) whether it is not worth seriously considering having a system whereby the clerks of the various courts—quarter sessions and assizes; courts from which an appeal lies to the Criminal Division of the Court of Appeal—should report the sentences passed for the particular crimes. If that were done, it would take but a short time to glance down the list to see whether there were any sentences that were right out of the usual range; and the Appeal Court could be given power to call up those cases where, prima facie, the sentence was out of the usual range, whether too high or too low, so that the Court might satisfy itself that in fact no error had been made. I should like to see the Court of Appeal have the power to do that, both when they thought a sentence was excessive and when they thought it was too low. If we had some procedure of that kind, I believe that we should be 1349 making a long stride forward to securing greater uniformity of sentence, which I think is extremely desirable.

§ There is one other argument that I should like to advance, and I will deal with it as shortly as I can. I do not put forward this Amendment, which is modelled on the language in the Scottish Statute, to achieve the same result, as a deterrent to people against bringing frivolous appeals, unmeritorious appeals. That is not my argument. I base it on a broader ground of principle, of enabling the Court to do what is right in relation to cases that come before them. It seems to me hard to justify the proposition that, because the Court have had their hands tied for years, they should continue to have them tied and should not be freed, as they are in Scotland and Northern Ireland. At the same time, it should be recognised that if this change were made, it would operate (and I do not think this would be a bad thing) as a considerable deterrent to those who might attempt to bring appeals against conviction in the belief, and the knowledge, that, whether they won or lost, whatever the result, they could be no worse off than they were before they brought the appeal. Be that as it may, the force of the argument I am putting forward depends primarily, in my belief, on securing uniformity of the law in Scotland, England and Northern Ireland, and in taking a step to secure more uniformity of sentence, and giving the Court of Appeal more power to act as they think fit. I beg to move.

§ Amendment moved—

§ Page 5, line 16, leave out subsection (2) and insert: ("(2) On any appeal against conviction the Court shall have the like power to quash the sentence passed and to pass another sentence as the Court has in the case of an appeal against sentence.").—(Viscount Dilhorne.)

§ 7.26 p.m.

§ LORD PARKER OF WADDINGTON
I have every sympathy with the noble and learned Viscount in his desire to do what we can to secure uniformity of sentences and, in particular, to see that the rogue gets his full deserts. If I thought that this Amendment would go any way towards achieving that object, I should vote for it wholeheartedly; but having looked at the figures, I doubt whether it is of any practical significance.
1350 Over the last ten years (this is an approximate figure, because the full figures for 1965 are not out) there have been 250,000—that is to say, a quarter of a million—convictions on indictment. And the number of cases in which there has been an appeal against conviction only (and it is to that class that this Amendment would apply) is no more than 4,575. That means that, under this Amendment, there would be only 1.8 per cent. of all convictions upon which the Court of Criminal Appeal could operate to put up the sentence—not, of course, in all of them; but the only field the Court would have to find the lenient sentences would be in 1.8 per cent. of the total number of cases. I ask: is it really worth it for that small number? It touches only the fringe of the problem.
The noble and learned Viscount also suggested that some scheme might be devised whereby there would be a large Court of Criminal Appeal office to which reports would be made of the sentences, and people would be charged to look through them to judge which were lenient sentences. That would be a vast operation. One has only to sit in the Court of Criminal Appeal, or as a single Judge doing their work under Section 17, to see from the outside of the papers sentences which look completely wrong. It is not until you have had a complete transcript—and you would require a transcript in every case to see the exact facts—that you begin to know why that sentence was passed, and can begin to judge whether it is a severe or a lenient sentence.
I hope that we can do something to secure greater uniformity, but my idea would be to see that it was done as far as possible at the trial level, without appeals to the Court of Criminal Appeal. I would hope that this strengthened Court of Criminal Appeal, strengthened as constituted by this Bill, might perhaps be more free with expressions of opinion in regard to sentences, and that their opinions might go, not, as to-day, merely to the deputy-chairmen of quarter sessions who deal with the cases, but to all the 347 recorders, assistant recorders, chairmen and deputy-chairmen dealing with indictable offences.
The other day we came across a sentence of nine months imprisonment passed 1351 for highjacking a lorry with £15,000 worth of goods. There was no appeal against sentence—that indeed would be a case within the noble and learned Viscount's Amendment. And, despite the fact that there was no appeal against sentence, we expressed complete horror at that sentence. Our comments received some publicity in the Press, but the only person who saw it in the transcript was the deputy-chairman himself. It seems to me that a remark like that ought to be circulated among all the 347 people dealing with indictable offences. That is only an illustration, but I would hope that a strengthened Court of Criminal Appeal could do something towards achieving something of this sort.

§ LORD DONOVAN
I wish to say only a few words. I have come to realise that the noble and learned Viscount, Lord Dilhorne, when he is upon his feet in this House, and elsewhere, carries a great deal of weight; and he has put the case for this Amendment with all his wide gifts of persuasion and eloquence. Nevertheless, I would respectfully ask him whether he will reconsider it. I know, of course, that it would bring us into line with Scotland and with Northern Ireland, but one of the noble Viscount's political ancestors castigated consistency in terms which it is unnecessary for me to recall. Those courts have a much smaller problem compared with ours, and they can afford these things. But we have each year, if I take the 1964 figures as an example, something like 500 appeals against conviction, and in those cases it is a rarity, or at least it was, to find anything wrong with the sentence.
The noble and learned Viscount asked: What experience is the Committee referring to?—and we used those words in our Report. The experience was that of Mr. Justice Lawton and myself. In ten years of looking at these cases, where the appeal was against conviction only, I never saw any more than half a dozen sentences of which I thought: "Well, this man is very fortunate that he has not appealed against the sentence as well". That means this: that, unless times have changed, the Court will be looking each year at some 500 sentences really in order to alter something like half a dozen of them. At this time of day, and with the heavy programme which the Court of 1352 Criminal Appeal has, it is not the time to put upon the Court additional burdens which are not absolutely unavoidable.
Secondly, the Departmental Committee which considered this proposal felt that a person with good grounds for thinking that his conviction was appealable might be deterred from appealing because he receives a light or moderate sentence. He might well say to himself: If I do appeal, the Court will then take the opportunity to put up my sentence." In those circumstances, he is worse off than the man who thinks his conviction is perfectly good, and wants merely to appeal against his sentence if, after consideration, he thinks it right to do so. The Court can do nothing at all to him unless he himself sets the wheels in motion. If he has a light sentence, all he has to do is to sit tight and do nothing.
Thirdly, this Amendment leaves intact the somewhat unwholesome spectacle, with which we dealt at length in the Report, of one of Her Majesty's Courts having to put on a mask and conceal its true intentions from an appellant who hopes for a reduction of his sentence, but who is given leave to appeal only so that the Court may increase it. This Amendment would leave that situation unchanged, and on that ground I hope that the noble and learned Viscount will, upon reconsideration, withdraw the Amendment.

§ THE LORD CHANCELLOR
I would venture to express the same hope. The Amendment which the noble and learned Viscount, Lord Dilhorne, has moved has had a very full, interesting and, I am sure, worthwhile discussion, but I hope that, having heard the debate, and in view of the immense experience which lies behind the observations which have fallen from the noble and learned Lord. Lord Donovan, and the noble and learned Lord, the Lord Chief Justice, he may feel able to withdraw the Amendment.

§ LORD CONESFORD
I should like to say just a few words before my noble and learned friend replies. One observation of my noble and learned friend the Lord Chief Justice causes me some doubt. He mentioned to the Committee a case where the Court of Criminal Appeal found that, in a case of great importance to the public in a class of crime that is 1353 increasing to the horror of the public, an absurdly light sentence had been given. The noble and learned Lord said that the Court made some adverse comments on that fact, and that those comments (I think he said) reached a deputy chairman of quarter sessions. Think of the difference in the publicity given and the effect on the criminal classes if, instead of the observations going to one deputy chairman of quarter sessions, the proper sentence had been substituted by the Court of Criminal Appeal. The publicity would have been immense. The possible effect in the prevention of crime might have been considerable.
What troubles me so much is that we consider, and rightly consider—I do not complain of it—and almost lean over backwards to do justice to the individual. But sometimes I think we slightly forget the public and the necessity of protecting the public against crime. I appreciate, of course, what the noble and learned Lord, Lord Donovan, says about (I forget his exact expression) leading the appellant into a trap. But suppose that what my noble and learned friend Lord Dilhorne proposes were the law: then everybody would know that in every criminal appeal the question of sentence was at issue: not that the Court of Criminal Appeal or, as it will be, the Court of Appeal would lightly interfere with sentence, but in a proper case it would do so. It would be universal knowledge, as it is in Scotland, that in every appeal the sentence could be altered to what was thought to be right. I do not know in the least what my noble and learned friend Lord Dilhorne proposes to do with his Amendment on this occasion, but, speaking for myself, I very much hope that it is not the last we shall hear about something of the sort during the passage of this Bill.

§ VISCOUNT DILHORNE
I have listened with great attention to what has been said in the course of this debate, and I should like, if I may, to reply to some of the observations that have been made. My noble and learned friend Lord Donovan indeed fired all his guns at this Amendment. I should like to say, in relation to the last argument he advanced, that this Amendment still leaves what I might call the trap open to the man who appeals against sentence. I did not really deal with that in moving 1354 the Amendment, except to say that I was against that trap continuing. The reason why the Amendment is in the present form is because it is the simplest way to raise the issue, and it is the way it was done in the Scottish Act. I think that if this principle were accepted it would be much easier to get rid of the distinction between appealing against sentence and appealing against conviction. You would give the right to appeal, and the man would specify which it was; and, as my noble friend Lord Conesford said, it would be generally known in every case that where there was an appeal there was the possibility that the sentence would be increased, if was unduly light, and the possibility that an excessive sentence, if it was excessive, would be reduced.
I should like to deal shortly with some of the other arguments which have been advanced. I personally am not very impressed by the argument that some might he deterred from appealing when they had meritorious appeals. Having regard to the legal advice which one hopes will be available to them, if it is not at present, one would have thought that their chances on that could easily be assessed; and I should have thought that if a man was really innocent of the offence, he would not be deterred from appealing against conviction on the slight chance that the sentence would be increased. I thought the most powerful argument against the Amendment was the small number of cases out of the total number of convictions which would be affected by it. The noble and learned Lord, the Lord Chief Justice, gave the figure of 1.8 per cent. of the total, and the noble and learned Lord, Lord Donovan, said 500 in the course of a year. These are small figures.
But I wonder whether it is really right to approach this matter entirely on the basis of statistics? I remember a case that happened in my constituency when I was a Member of another place, where a woman had been killed in terrible circumstances, and where there was a conviction and a sentence to imprisonment which anyone would have regarded as wholly inadequate. There was an appeal to the Court of Criminal Appeal, and the court could do nothing about the sentence. The effect of that sentence in that neighbourhood, following upon the conviction, 1355 was something which would take me perhaps too long to describe. It did a great deal of harm to the reputation of British justice. The fact that the man concerned was free in that neighbourhood within a very few years was a cause of great alarm and disquiet, not only in the village where this particular crime occurred, but in many areas round about.
If the Court had the power they have in Scotland, I personally adhere to the view that it would be beneficial to the administration of justice. I think it would be a desirable reform, and I entirely agree with the observations made by my noble friend Lord Conesford in saying that one increase of sentence which is widely publicised can have much more effect on those potential criminals than many words of admonition to chairmen of benches, quarter sessions, and so on. It is not for me to seek to force through this House a proposal which does not meet with the support of those actually charged with the responsibility in this connection. But I do ask that further thought should be given to this, because I believe the time is bound to come when the court itself will realise that, without this power, they really cannot do justice as they should and no doubt wish to do. With those observations, I ask leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 4 shall stand part of the Bill?

VISCOUNT COLVILLE OF CULROSS
If I may, I should like to make two comments on Clause 4. The first of them follows to some degree, although not completely, from the discussion on the last Amendment, and that is the question of the number of appeals against either conviction or sentence, or both, with which the Court of Appeal, Criminal Division, would have to deal.
On the Second Reading the noble and learned Lord, the Lord Chancellor, gave it as his opinion that the proper way to deal with the problem was to implement, or seek to implement, the provisions of the Widgery Committee on Legal Aid. He said that he was not in a position at that time to state what attitude his right honourable friend the Home Secretary would be able to take on this matter. 1356 It seems to me that, although clearly it cannot go into this Bill, this particular provision is so closely involved in the success of the new Court of Appeal, Criminal Division, that it ought not to be divorced from it by any length of time. I seriously hope that the noble and learned Lord will be able to get a decision out of the Home Secretary on this particular matter, and will be able to legislate on it fairly early.
If the information I have is right—I believe it gives me some backing on this—there has been a considerable increase in the number of appeals since the noble and learned Lord, the Lord Chief Justice, made his announcement, last August I think it was, that the provision that now appears in subsection (2) of Clause 4 was in practice to be implemented from that date. My information seems to have been somewhat unsatisfactory as to its accuracy, but I hope that part at least is correct. If this is so, this problem is likely to be urgent, and I hope the noble and learned Lord will press for what he considers to be the right solution. I do not think I disagree with him.
I have had some correspondence with the noble Lord's Department (because he was not here) about the question of drafting. I was perhaps a trifle overenthusiastic in my criticism on Second Reading about the drafting of this clause. I appreciate that this is a difficult matter. I have looked at the draft of a Keeling Schedule for this clause, and I am enormously grateful to those who have done some work upon it. It is extremely long, and means re-writing sections out of five or six Acts of Parliament, one of them a Northern Ireland Act; and I also realise, on account of the way that Clause 1(6)(a) is drafted that it will mean further alterations in the substance of the Bill.
It seems to me that there are other more important things that the draftsmen have to do than to deal with Keeling Schedules and other amendments to Clause 1, and I have therefore not pursued this matter at this stage, and do not intend to do so any more. But I hope it will be borne in mind that these Keeling Schedules make life a great deal easier for Parliament, even if they do not make it all that much easier for the practitioner afterwards, because he uses a book which 1357 is brought up to date regularly, and at frequent intervals. When one is dealing with this sort of Bill in Parliament, it is the greatest help to have the matter set out on the back and not to have some provision in the substantive part of the Bill which makes it impossible to do it. I am glad to see that in another Bill produced by the noble and learned Lord it has indeed been done.

§ THE LORD CHANCELLOR
May I say in answer to those points, first, that I have no reason to suppose that my right honourable friend the Home Secretary does not share my approval of the Widgery Report. But I must add that two other things are involved, first money, and, secondly, Parliamentary time, and I am not in a position to give any undertaking. On the second point we took some trouble to get out a Keeling schedule in this case, but I am glad that the noble Viscount appreciated that it was very long and did not really help, though—I must not say this entirely to please him—we have a Keeling schedule in the Family Provisions Bill, which has been read a First time.

§ Clause 4 agreed to.

§ Clause 5 agreed to.

§ Clause 6 [Record of proceedings at the trial]:

§ On Question, Whether Clause 6 shall stand part of the Bill?

VISCOUNT COLVILLE OF CULROSS
Again, I am sorry to intervene on this. On Second Reading, when dealing with the mechanical recording of proceedings in courts, the noble and learned Lord the Lord Chancellor let fall the view that any copy typist can transcribe from a tape recording of a court trial. It may well have been that his view of the usefulness of this clause has been coloured by the view I have just mentioned. I believe that it is very far from the case that any copy typist can do this work.
There may well be some clash between the desirability of freeing the shorthand writers from actually sitting in the court and taking down the evidence and proceedings as they go along, and the necessity to keep them rather longer than they are now kept in the transcription front tape recording to produce a proper 1358 transcript. I believe that it can take considerably longer to transcribe from a tape recording than it does for the shorthand writer to transcribe a fair copy from his own shorthand notes. If there is any difficulty about this in terms of money, time or staffing, I hope the noble and learned Lord is prepared for these difficulties, and realises that there is this particular problem which may arise. It may be a different one from that we have now, but it may turn out to be serious, and I hope the necessary protection and encouragement which is given to the professional shorthand writer will not be in any way overlooked in this matter.

§ THE LORD CHANCELLOR
I am obliged to the noble Viscount for what he has said. I have so far received only the Interim Report of Mr. Justice Baker's Committee on Mechanical Recording of Court Proceedings. I have certainly come to no conclusion, and shall not do so until I have seen the Final Report. Certainly whatever is done, the interests of the present court shorthand writers, for whose services we are so much indebted, will be carefully borne in mind.

§ Clause 6 agreed to.

§ Clause 7 [Witnesses' expenses]:

§ 7.51 p.m.

§ THE LORD CHANCELLOR moved, in subsection (1), to leave out "witness who attends and gives evidence on an appeal under that and insert: person properly attending to give evidence on an appeal under the 1907". The noble and learned Lord said: I should like to take Amendments Nos. 5, 6, 7, 10, 11 and 12 together. Clause 7 at present provides that the Court may order the payment out of local funds of such sums as appear reasonably sufficient to compensate any witness for the expense, trouble or loss of time incurred in his attendance and giving evidence. But, as the noble and learned Lord, the Lord Chief Justice, pointed out during the course of the Second Reading debate, it sometimes happens that persons attending are not called upon to give evidence. 1359 The effect of the first three of these Amendments is to enable the Court to order the payment of the expenses of such persons.

§ As to the other three, the paragraph 7(1) of Schedule 1 provides a power, in similar terms to Clause 7, for the Courts-Martial Appeal Court to compensate witnesses for expenses, and so on, for attendance, whether or not in obedience to an order of the Court. The three Amendments, like those I have already referred to, enable the Court to order the payment of the expenses of persons properly attending to give evidence who are not in fact called upon to give evidence when they attend. I beg to move the first of the Amendments.

§ Amendment moved— Page 6, line 24, leave out from ("any") to ("Act") in line 25 and insert the said new words.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I beg to move Amendment No. 6.

§ Amendment moved— Page 6, line 26, after ("appeal") insert (", whether or not he gives evidence,").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I beg to move Amendment No. 7.

§ Amendment moved— Page 6, leave out line 28.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 7, as amended, agreed to.

§ Clauses 8 and 9 agreed to.

§ Clause 10 [Provisions as to Northern Ireland]:

§ THE LORD CHANCELLOR
This Amendment deletes from Clause 10(2) the words which extend to Northern Ireland those provisions of the Bill which amend or repeal the Criminal Justice Act (Northern Ireland) 1966. At the time when this Bill was drafted it was thought that the Criminal Justice Act (Northern Ireland) 1966 would have been 1360 in operation by the time this Bill was before Parliament, but the Irish Bill is still before the Parliament of Northern Ireland. I understand it has run into some difficulties, and accordingly it will be necessary for them to come into line with us rather than our aligning with them. That is the object of this Amendment. I beg to move.

§ Amendment moved— Page 7, line 24, leave out from ("Act") to ("as") in line 25.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 10, as amended, agreed to.

§ Clause 11 agreed to.

§ Schedule 1 [Appeals from and confirmation of findings of courts-martial]:

§ THE LORD CHANCELLOR
This is purely a drafting Amendment. Paragraph 2 of Schedule 1 permits the exercise of the "single judge" powers of the Courts-Martial Appeal Court by any Judge of the Queen's Bench Division, any Lord Commissioner of Justiciary and any Judge of the Supreme Court in Northern Ireland. Paragraph 2 is intended to, and does, permit the exercise of "single judge" powers by a Judge who has not been nominated to be a member of the Court, as well as by one who has. The reference to "the person nominated" is, therefore, inappropriate. I beg to move.

§ Amendment moved— Page 9, line 26, leave out ("the person nominated") and insert ("he").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I beg to move.

§ Amendment moved— Page 10, line 25, leave out ("witness who attends and gives") and insert ("person properly attending to give").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I beg to move.

1361

§ Amendment moved— Page 10, line 27, after ("appeal") insert ("whether or not he gives evidence,").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I beg to move.

§ Amendment moved— Page 10, leave out line 29.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Schedule 1, as amended, agreed to.

§ Schedule 2 [Consequential and minor amendments]:

§ THE LORD CHANCELLOR moved to leave out the paragraphs relating to the Criminal Justice Act (Northern Ireland) 1966. The noble and learned Lord said: If I may take this and Amendment 14 together, these again delete from the Bill the Amendments to the Criminal Justice Act (Northern Ireland) 1966, which were intended to bring its provisions relating to appeals from findings of not guilty on the grounds of insanity into line with the corresponding provisions of the Criminal Procedure (Insanity) Act 1964 as amended by paragraphs 7 and 8 of Schedule 2.

§ As I said before, the Bill for the Northern Ireland Act is still before the Parliament of Northern Ireland. It had been anticipated that it would be passed in the very near future. It is obviously impossible for that Bill to anticipate the form which the amendments to the Act of 1964 might eventually take, and the most convenient way of keeping the two enactments in line was to let the Northern Ireland Bill proceed and amend it by the Criminal Appeal Bill. Unfortunately, the progress of the Northern Ireland Bill has been retarded, and apparently it will not be passed for a considerable time. Moreover, its passage will not be facilitated if it is still being debated in Belfast while being simultaneously amended at Westminster. It will therefore be more convenient for the Northern Ireland Parliament that the Criminal Appeal Bill should not amend their Bill. The latter can then be amended in Belfast, so as 1362 to keep the relevant provisions in line with the corresponding provision of the Act of 1964, in whatever form this may emerge after being amended by the Criminal Appeal Bill. Amendments for this purpose will be within the legislative competence of the Parliament of Northern Ireland. I beg to move.

§ Amendment moved— Page 12, leave out lines 18 to 28.—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS
Is the retardation of the Northern Ireland Bill such that there is any danger of its not coming into effect at all? I am a little concerned lest, one way or the other, we should fall between two stools, and end up by this Amendment to the existing law not coming into force in Northern Ireland.

§ THE LORD CHANCELLOR
I cannot answer that very specifically, hut, as I understand it, there is no prospect of its being dropped or not going through at all. Some difficulty has been run into, the precise nature of which I am afraid I do not know.

§ On Question, Amendment agreed to.

§ Schedule 2, as amended, agreed to.

§ Schedule 3 [Repeals]:

§ THE LORD CHANCELLOR
I beg to move.

§ Amendment moved— Page 13, leave out line 41 and 42.—(The Lord Chancellor).

§ On Question, Amendment agreed to.

§ Schedule 3, as amended, agreed to.

§ House resumed: Bill reported with Amendments.