§ As amended (by the Standing Committee considered.1050
§ *MR. CLAVELL SALTER
moved a new clause with regard to the summary determination of appeals, and he earnestly hoped the Government would favourably consider it. It was a clause which he thought would have a practical bearing in making the new Court more flexible and convenient and less cumbrous and expensive. Some Members had voted against a Court of Criminal Appeal, but the House having decided that there should be such a Court, these who had voted against it now only desired to make it as convenient and sucecessful as possible. It was no doubt necessary that these criminal appeals should be left in the discretion of the Court of Appeal, but at the same time there could be no doubt that the necessity for two separate hearings in the case of every criminal appeal would add greatly to the total expense and delay. The person convicted would have to go through two proceedings for redress. He would first of all have to go to the Court of Appeal for leave to appeal, and the appeal if allowed would be heard some time later. The Court would be working from two lists— one, a long list, for leave to appeal, and the other, a shorter list, dealing with the appeals themselves. power was given under this Bill to make the application for leave to appeal to a single member of the Court sitting in Chambers for that purpose. If the Judge refused leave, then the person convicted was entitled to have his application reheard in full Court Such an appeal would be a long one if a man came before the Court and said his sentence was excessive, and still longer if he said his sentence was unjust. Counsel would refer to voluminous shorthand notes and the appeal would take the greater part of the day, at any rate it would be a long and costly business. Let the House imagine what would happen. A man appealed against his sentence on the ground that it was excessive. Counsel for both sides would come before the Court. Counsel for the convicted man would allege that his client had received an excessive sentence. He would then go through the history of the case, which would take some time, and then it would be the novel, invidious, and repulsive duty of the opposing counsel to insist upon the adequacy of the sentence and to call attention to all the matters he could to aggravate the case. After an hour or two of the time of the 1051 Court had been taken up, the Judges, it might be, would come to the conclusion that the sentence was excessive. Under these circumstances the Court had only one course to pursue—namely, to state to the counsel fur the convicted man that he had made out a prima facie case and give the man leave to appeal against the sentence, in which case the counsel would come back in about two months time and go through the matter all over again. The object of the clause he now moved was to give the Court the right to say in such a case, "Not only do we give you leave to appeal, but we shall treat this application for leave as the substantive appeal." The Court which had come to the conclusion that the sentence was excessive would obviously have come to a conclusion as to what sentence ought to be given, and all this clause did was to give them power to dispose of the whole thing at once. In that way he thought that the clause would operate with great public convenience and save expenditure. It would also operate in the case of appeals against the conviction on the ground that it was unjust. In that case if the Court came to the conclusion that the sentence was not satisfactory, it would be a great convenience to allow them to say so and to order the case to be tried again at the next Assizes. He begged to move.
§ *SIR WILLIAM ANSON (Oxford University)
seconded the new clause. He said it was an unfortunate feature of this Bill that all its stages had been taken at morning sittings, although the Attorney-General had been understood to say that the Report stage should not be taken at a morning sitting.
§ SIR JOHN WALTON
said that he promised to do his best to consider the convenience of Members belonging to the legal profession. He made representations to these who arranged the business of the House. but it was found impossible to take the Bill at any other time.
§ *SIR WILLIAM ANSON
said that it was unfortunate, seeing how this Bill interested the members of the legal profession, who were unable to be present at morning sittings. To that extent the House was deprived of the full criticism which such a Bill as this ought to receive. 1052 He believed that the Attorney-General had under-estimated the amount of business that would be thrown on the Court of Appeal, owing to the large number of very small cases that would be brought forward. He appeared to assume that only large cases involving novel or great questions of criminal law or unusual questions of fact would come before this Court, but criminals of every sort would appeal against sentences, especially as the cost would be provided for them. In a great number of the cases which came before the Court the appeal might be allowed after full inquiry, and then the matter might be postponed for two or three months and have to be gone into all over again. Surely in matters of that kind the Judges could be trusted to deal with the cases which could be disposed of at once. Why was it that the Judge was not allowed to have this discretion, especially having regard to the possible block of business arising from the number of cases which would come before the Committee? Then, again, what was to happen in the interval between the leave to appeal given and the time when the appeal took place to the person who was appealing against his conviction and sentence? He hoped if this clause was not accepted some good reason would be given for it.
New clause—On the hearing of any application for leave 10 appeal the Court of Criminal Appeal may, if they think lit, deal with the matter as though such application were an appeal under this Act."—(Mr. Salter.)
§ Brought up, and read a first time.
§ Motion made, and Question proposed, "That the clause be read a second time."
§ *SIR JOHN WALTON
said that his hon. and learned friend was under a slight misapprehension as to the procedure which would be adopted in order to give effect to this portion of the Bill The motion for leave to appeal would be an ex parte motion made by a convicted person. In other words, it was proposed to revive the procedure of obtaining a rule nisi for a new trial. The appellant would have to satisfy the Court that there were very substantial grounds for setting aside the verdict, and he would have the advantage of doing that ex parte and without the presence of the prosecution. It was important that this step 1053 should be made as economical as possible, and unless there was some point proposed to be raised worth arguing it seemed to him to be unnecessary to burden the Exchequer with the cost of briefing counsel for the prosecution in order that they might attend when there was in reality nothing for them to answer. If the Court thought that there was no real ground for the appeal they would dismiss it; if, on the other hand, they felt some difficulty in supporting the conviction they might be glad to hoar what the prosecution had to say. In these circumstances the Court would have, where it was necessary, both parties present. Pro vision was made against frivolous appeals on questions of law only, because if an application for leave to appeal came before the Registrar, and he thought that it was frivolous, he could say that there was no substantial grounds whatever for it, and then a summary determination would be arrived at.
§ *MR. CAVE (Surrey, Kingston)
complained of the inconvenience of such a Bill as this being discussed at a morning sitting and pointed out that it was really impossible for professional men to attend at the House at such a time. He hoped his hon. friend would not insist on this new clause, because if it was the fact that these applications for leave were to be heard ex parte it obviously would not be right to dispose of the appeal itself in the way suggested in the clause. If the Court thought it was a vexatious or frivolous appeal they would dispose of it by refusing leave to appeal, but if they thought there was something in the case it would not be right that they should grant relief without hearing counsel for the prosecution and satisfying themselves that the prima facie case made upon the application for leave to appeal could be maintained.
§ *MR. REES (Montgomery Boroughs)
said he did not know whether the person applying for leave to appeal would be satisfied with the decision of a Registrar. He thought appellants might insist upon a practice similar to that which existed in one of the High Courts of India, in the 1054 Registrar's office of which he had served, namely, to bring the case before a Judge sitting as an admission court whereby real courts, hearings and appeals would result. He had gathered that it would be permissible to some extent to discuss the principle of the Bill on this Amendment. If that were so it would be on Clause 1, Sub-section 1, and for his part he would say that this Bill was unnecessary in so far as it was designed to relieve the Home Secretary of his function of advising in the exercise of the prerogative of mercy. If the Home Secretary asked, as he always did, and followed the advice of the Judge who tried the case, his task and his responsibility would be lightened. It had been his own duty when British Resident at the Courts of Native Princes to exercise this function, and he believed, that upon the advice of the trying Judge it could be properly exercised, and out side pressure avoided or disregarded.
§ *MR. SPEAKER
said the hon. Gentle man had mistaken the question. The question was that the now clause be read a second time, and upon that question the hon. Gentleman could not take the opportunity to discuss the principle of the Bill on Clause 1.
§ VISCOUNT TURNOUR (Sussex, Horsham)
moved the adjournment of the debate on the ground that although no one doubted the good faith of the Attorney - General, it was un doubtedly the fact that it was under stood by hon. Gentlemen with whom he sat that this stage of the Bill would not be taken at a morning sitting. The Bill was of great importance to the general public and the legal professior There were many legal Gentlemen who sat on his side of the House unable to be present. Believing that the Bill was not to be taken, they had made other arrangements. He did not think his hon. and learned friends should be pre vented from taking part in the debate owing to an unfortunate misunderstanding. He begged to move.
§ Motion made, and Question put, "That the debate be now adjourned."1056
§ The House divided:—Ayes, 28; Noes, 173. (Division List No. 294.)1057
|Anson, Sir William Reynell||Du Cros, Harvey||Salter, Arthur Clavell|
|Balcarres, Lord||Forster, Henry William||Sloan, Thomas Henry|
|Banbury, Sir Frederick George||Gardner, Ernest (Berks, East)||Thornton, Percy M.|
|Bignold, Sir Arthur||Hardy,Laurence (Kent,Ashf'rd||Valentia, Viscount|
|Butcher, Samuel Henry||Harris, Frederick Leverton||Wolff, Gustav Wilhelm|
|Cave, George||Harrison-Broadley, H. B.||Younger, George|
|Cavendish,Rt. Hn. Victor C.W.||Kimber, Sir Henry||TELLERS FOR THE AYES— Viscount Turnour and Mr. Carlile.|
|Corbett, A. Cameron (Glasgow)||Liddell, Henry|
|Corbett, T. L. (Down, North)||Lonsdale, John Brownlee|
|Dalrymple, Viscount||Lowe, Sir Francis William|
|Douglas, Rt. Hon. A. Akers-||Pease,Herbert Pike(Darlington|
|Abraham,William (Cork, N.E.)||Gill, A. H.||Massie, J.|
|Ainsworth, John Stirling||Gladstone,Rt.Hn Herbert John||Meagher, Michael|
|Ashton, Thomas Gair||Glendinning, R. G.||Menzies, Walter|
|Baker, Sir John (Portsmouth)||Goddard, Daniel Ford||Mooney, J. J.|
|Baring, Godfrey (Isle of Wight)||Grant, Corrie||Morley, Rt. Hon. John|
|Barlow, Percy (Bedford)||Greenwood, G. (Peterborough)||Morton,Alphcus Cleophas|
|Barnes, G. N.||Griffith, Ellis J.||Murnaghan, George|
|Barran, Rowland Hirst||Halpin, J.||Murray, James|
|Barry, Redmond J. (Tyrone, N.||Hart-Davies, T.||Myer, Horatio|
|Beale, W. P.||Harvey,W.E.(Derbyshire, N.E,||Napier, T. B.|
|Bellairs, Carlyon||Haslam, Lewis (Monmouth)||Nicholls, George|
|Bennett, E. N.||Haworth, Arthur A.||Nicholson,CharlesN.(Doncast'r)|
|Bethell, T. R. (Essex,Maldon)||Hayden, John Patrick||Nolan, Joseph|
|Birrell, Rt. Hon. Augustine||Hazleton, Richard||Norton, Capt. Cecil William|
|Black, Arthur W.||Helme, Norval Watson||O'Brien,Kendal (TipperaryMid|
|Boland, John||Higham, John Sharp||O'Brien, Patrick (Kilkenny)|
|Bottomley, Horatio||Hobart, Sir Robert||O'Donnell, C. J. (Walworth)|
|Boulton, A. C. F.||Hobhouse, Charles E. H.||O'Donnell, T. (Kerry, W.)|
|Bowerman, C. W.||Hodge, John||O'Grady, J.|
|Branch, James||Hogan, Michael||O'Malley, William|
|Brigg, John||Hudson, Walter||Parker, James (Halifax;)|
|Brunner,J.F.L. (Lancs., Leigh)||Illingworth, Percy H.||Philipps,Col.Ivor (S'thampton)|
|Burns, Rt. Hon. John||Jenkins, J.||Pickersgrill, Edward Hare|
|Byles, William Pollard||Jones,Sir D. Brynmor(Swansea)||Pollard,Dr.|
|Campbell-Bannerman, Sir H.||Jones, Leif (Appleby)||Price, C.E. (Edinb'gh,Central)|
|Cherry, Rt. Hon. R. R.||Jones, William(Carnarvonshire)||Rainy, A. Rolland|
|Churchill Rt. Hon. Winston S.||Jowett, F. W.||Raphael, Herbert H.|
|Clynes, J. R.||Joyce, Michael||Redmond, John E. (Waterford)|
|Collins, Stephen (Lambeth)||Kearley, Hudson E.||Redmond, William (Clare)|
|Collins,Sir Wm.J.(S.Pancras,W||Kekewich, Sir George||Renton, Major Leslie|
|Condon, Thomas Joseph||Kelley, George D.||Richards, T.F.(Wolverh'mpt'n)|
|Corbett,C.H.(Sussex,E.Grinst'd||Kilbride, Denis||Roberts, Charles H. (Lincoln)|
|Cotton, Sir H. J. S.||Kincaid-Smith, Captain||Robertson,Sir G.Scott(Bradf'rd|
|Cox, Harold||Laidlaw, Robert||Robertson, J. M. (Tyneside)|
|Craig, Herbert J. (Tynemouth)||Lambert, George||Roche, John (Galway, East)|
|Crooks, William||Layland-Barratt, Francis||Rogers, F. E. Newman|
|Davies, Timothy (Fulham)||Leese,Sir Joseph F.(Accrington||Runciman, Walter|
|Dewar, Arthur (Edinburgh, S.)||Lewis, John Herbert||Rutherford, V. H. (Brentford)|
|Dewar Sir J. A. (Inverness-sh.)||Lundon, W.||Samuel, Herbert L. (Cleveland)|
|Donelan, Captain A.||Lupton, Arnold||Schwann, C.Duncan (Hyde)|
|Duncan, C. (Barrow-in-Furness||Luttrell, Hugh Fownes||Schwann,Sir C.E. (Manchester)|
|Dunn, A. Edward (Camborne)||Lyell, Charles Henry||Seddon, J.|
|Edwards, Enoch (Hanley)||Macdonald, J. R. (Leicester)||Shaw, Rt. Hon. T. (Hawick B.)|
|Elibank, Master of||Macpherson, J. T.||Sinclair, Rt. Hon. John|
|Erskine, David C.||MacVeagh,Jeremiah (Down,S.)||Smyth, Thomas F. (Leitrim,S.)|
|Everett, R. Lacey||MacVeigh,Charles (Donegal,E.)||Soames, Arthur Wellesley|
|Farrell, James Patrick||M'Kenna, Rt. Hon. Reginald||Stanley, Hn.A.Lyulph (Chesh.)|
|Ferguson, R. C. Munro||M'Killop, W.||Strachey, Sir Edward|
|Flynn, James Christopher||Maddison, Frederick||Straus, B. S. (Mile End)|
|Gilhooly, James||Markham, Arthur Basil||Strauss E. A. (Abingdon)|
|Summerbell, T.||Wason,RtHn.E. (Clackmannan||Williams,Llewelyn (Carm'rth'n|
|Taylor, John W. (Durham)||Wason, John Cathcart (Orkney||Wilson, Henry J. (York. W.R.|
|Torrance, Sir A.M.||Waterlow, D. S.||Wilson, P. W. (St. Pancras, S.)|
|Trevelyan, Charles Philips||Watt, Henry A.||Wilson, W. T. (Westhoughton)|
|Verney, F. W.||White, J.D. (Dumbartonshire)||Young, Samuel|
|Walker, H. De R. (Leicester)||White, Luke (York, E.R.)||TELLERS FOR THE NOES— Mr. Whiteley and Mr. J. A. Pease.|
|Walton,Sir John L. (Leeds, S.)||White, Patrick (meath, North)|
|Wardle, George J.||Whitehead, Rowland|
|Warner, Thomas Courtenay, T.||Whitley, John Henry (Halifax)|
§ Original Question pub, and negatived.
§ *SIR JOHN WALTON
asked whether it was in order to move to postpone the operation of an Act without stating it definite period in which it should come into force.
§ MR. SPEAKER
said he could not say it was out of order; he thought the hon. Gentleman was entitled to move.
§ *MR. CAVE
said that if it were not in his opinion important he would not press it. They were all agreed that the King's Bench Division was undermanned, and although the House had agreed last week to the appointment of one new Judge, everyone admitted that that was not enough for the work the Division now had to do. This Bill would add a very large amount of work. There were some 12,000 convictions on indictment in the course of a year, and the probable number of appeals could not be put at less than 2,000 or 3,000. In order to hear these appeals at least three Judges would have to be taken away from their ordinary work for the greater part of the year, and no provision had been made for that contingency. He submitted that before the Bill came into operation some provision should be made to cope with this additional work, and he hoped that the hon. and learned Gentleman would tell the House how it was proposed to cope with it. Unless he had some definite promise that something would be done to meet this obvious need he should press his Motion.
§ SIR F. BANBURY
seconded the Amendment. He was perfectly sure I that his hon. friend would not desire the appointment of three additional Judges unless their appointment was necessary. He was anxious, if they were to have a new Court of Appeal, to get that Court properly conducted. A short time ago there were not enough Judges to carry on the ordinary business, and if they were to have a new Court it would appear to be necessary to have additional Judges.
New clause—Notwithstanding anything herein contained this Act shall not take effect unless and until an Act shall have been passed authorising the appointment by His Majesty of not less than three additional Judges of the King's Bench Division of the High Court of Justice."—(Mr. Cave.)
§ Brought up, and read a first time.
§ Motion made, and Question proposed, "That the clause be read a second time."
§ *SIR JOHN WALTON
said it was difficult at this stage to fix the number of Judges, as they did not know what would be the result of this legislation, whether the appeals by prisoners would be few or many; they could not anticipate with any degree of certainty one way or the other. Further, it could not be seen to what extent it would be necessary to increase the judicial staff until a redistribution of the business of the Courts had been effected in the King's Bench Division and the Court of Appeal. A committee was now considering the subject, and it was quite possible that a portion of the business of the King's Bench would be transferred to a third division of the Court of Appeal. If that change should be effected, the existing staff of the Kings Bench Division should be able to undertake the work which would be created if this legislation were carried. In these circumstances he 1059 thought it was impossible to do more than to ask the House to content them selves for the present with the appointment of one additional Judge.
§ MR. CARLILE,
speaking with afl diffidence as a layman, said the Attorney-General had told them distinctly the other day that the average of arrears when the Courts rose for the Long Vacation was at least 600 cases, and he did not see how the transference-of work from one Court to another would diminish arrears—especially when the Court of Criminal Appeal was established—without an increase of the number of Judges. The Attorney-General had recently proposed the appointment of one additional Judge, but there was a division of opinion as to whether the number ought not to be three, in view of the great glut of work already existing, and the increase of work which must be caused by the Court of Criminal Appeal.
§ MR. F. E. SMITH (Liverpool, Walton)
pointed out that if the clause were adopted the Government would be deprived of the opportunity of judging what addition to the judicial staff would be rendered necessary by the establishment of a Court of Criminal Appeal. What the Government wished to ascertain was what additions would be necessary after this Bill had come into operation. As he understood, the intention of the Government had been declared un equivocally that such additions would be made to the judicial staff as might be rendered necessary by the state of business after the Court of Criminal Appeal had been established. With that assurance, further discussion would be useless.
§ Question put, and negatived.
§ SIR JOHN WALTON
moved to leave out the word "seven" and insert the word "eight" in Clause 1. He had, he said, given a pledge in Committee to increase by one the number of Judges on the panel for the proposed Court of Criminal Appeal.
§ Amendment proposed to the Bill—
§ "In page 1, line 7, to leave out the word 'seven' and insert the word 'eight.'"—(Sir John Walton.)1060
§ Question proposed that the word "seven" stand part of the Bill.
§ *SIR WILLIAM ANSON
said he did not think that this proposal was what some of them had contended for in Committee. There were times when a great many Judges would be absent on circuit and it would be extremely difficult and inconvenient to make up the Court if any particular group of Judges was required to sit constantly in London. As they were considerably increasing the business of the Court, and they declined to appoint more than one additional Judge, it would be better to leave the Lord Chief Justice power to draw upon the whole resources of the King's Bench Division, and from time to time to constitute the Court with such Judges as it might be convenient to summon. While the substitution of eight for seven was a great improvement, the Lord Chief Justice making the ninth, and so enabling three Courts to be set up, he thought it would be preferable to accept the Amendment of his hon. friend the Member for the University of Cam bridge, to leave it open to the Lord Chief Justice to summon such judges as could be summoned with least inconvenience to the course of public business. He suggested that the Attorney-General should drop the word "eight" and insert the word "the," as proposed by his hon. and learned friend the Member for the University of Cambridge.
§ *MR. CLAVELL SALTER
said the proposal of the Attorney-General was that there should be a panel of eight from which the Lord Chief Justice was to select three Judges for the Court of Criminal Appeal, whereas the Amendment of his hon. and learned friend the Member for Cambridge University was that the Lord Chief Justice should be left free to select three from among any of the King's Bench Judges. They all desired to get the most suitable men for this Court, and they might be very sure that the most suitable men available would always be selected by the Lord Chief Justice. He thought it would be very undesirable to make changes in the composition of the Court, and that it would be most desirable to keep continuity of personnel. The Judges appointed to the-Court of Criminal Appeal would not be 1061 available for circuit work, at any rate for a long time. He thought the hands of the Lord Chief Justice should be left as free as possible in the making of arrangements already difficult to accomplish. It was suggested that some Judges were suitable for one class of work and some for another, but he could not see why a Judge who was fit to go on circuit should not be fit to sit in the Court of Criminal Appeal. But that was a minor matter. The major matter was that the choice of the Lord Chief Justice of Judges for the Criminal Appeal Court should be free and not limited to eight.
§ Amendment agreed to.
§ SIR JOHN WALTON
moved an Amendment to Subsection (4) of Clause 1, which provides that any question before the Court of Criminal Appeal should be decided by a majority of the Judges, but that there should be only one judgment delivered. The Amendment was to the effect that this provision should be modified where there was a question of law on which it would be convenient that there should be separate judgments by the members of the Court. The Government, he said, had maintained in Committee that the practice of the Privy Council to have no minority judgment should be followed in criminal matters, so that the executive, in the execution of a sentence, should have the full support of the tribunal. It had been pointed out, however, that questions of law might occasionally arise in reference to which it would be desirable to have the view of a minority of the Bench having regard to the possible necessity for further legislation. This argument had convinced him, and he thought it might be consistent with the general rule of the section if an exception were created in these cases referred to in the Amendment.
Amendment proposed to the Bill—In page 2, line 1, to leave out the word 'and, 'and insert' (5) Unless the Court direct to the contrary in cases where, in the opinion of the Court, the question is a question of law on which it would be convenient that separate judgments should be pronounced by the members of the Court.'"—(Sir John Walton.)
§ Question proposed, "That the word 'and' stand part of:he Bill."1062
§ *SIR WILLIAM ANSON
said he had a similar Amendment on the Paper, but he thought the Attorney-General's proposal better answered the object he had in view, and they were grateful to the Government for having introduced it. As the Bill was first drafted the practice of the Privy Council was to be followed, and no dissentient judgment pronounced, but the Privy Council had the power, and sometimes under careful restrictions exercised it, of departing from its own previous decisions, or modifying them; that was maintained by very high authority in various decisions. In regard to the Court of Criminal Appeal, if there was a dissentient judgment which might point to the necessity of legislation, it would be unfortunate if the judgment was not reported, and an Amendment made in the criminal law where necessary.
§ Question put, and negatived.
§ Proposed words there inserted in the Bill.
§ *SIR JOHN WALTON
next moved to insert a new subsection, "If in any case the prosecutor or defendant obtains the certificate of the Attorney-General that a decision of the Court of Criminal Appeal involves a point of law of exceptional public importance, he may appeal from that decision to the House of Lords, but subject thereto." There were cases of the greatest public importance where questions of law might possible arise in the Court of Criminal Appeal which it should be possible to carry to the highest Court of the realm. He quite recognised the importance of securing finality; yet in the cases in question, in order that the law should be authoritatively laid down, so as to carry the greatest weight, not only in the Empire, but throughout the world, it seemed desirable to make some provision for an appeal. It had occurred to him originally that they should allow appeal by the procedure of writ of error, but they might have an error of law of the greatest magnitude which could not form the subject of a writ of error, because it was not apparent on the face of the proceedings, and, there fore, he had come to the conclusion that the best plan was to do away 1063 with the institution of the writ of error and to propose this Amendment. Inasmuch as the appeal would be brought in the public interest, care would be taken that no hardship was suffered by an accused person by reason of the appeal. In cases where strong public feeling was excited and jurists were divided in opinion, it was only the judgment of the highest Court of the realm that would be universally accepted. He begged to move.
Amendment proposed to the Bill—In page 2, line 7, at the beginning, to insert the words, 'If in any case the prosecutor or defendant obtains the certificate of the Attorney-General that a decision of the Court of Criminal Appeal involves a point of law of exceptional public importance, he may appeal from that decision to the House of Lords, but subject thereto.'"—(Sir John Walton.)
§ Question proposed, "That these words be there inserted."
§ MR. ATHERLEY-JONES (Durham, N.W.)
thought the House would welcome the Amendment, but he pointed out that this was an entirely new departure with regard to the prerogative of the Attorney-General. It seemed to him that the Court which tried the case and might be divided in opinion upon some very grave point of law should also have power to grant leave to appeal. He suggested that, while reserving his own rights, the Attorney-General should extend these rights to the Court.
§ *SIR WILLIAM ANSON
welcomed the Amendment. He did not think it extended the power of the Attorney-General unduly. He understood the object was to limit appeals of this nature to matters of great public importance or juristic interest. This power to give leave to appeal was not inconsistent with other powers which the Attorney-General possessed.
§ MR. CAVE
thought the fiat of the Attorney-General was the best course to adopt, because it brought a fresh mind to the subject, and he would carefully read the judgment of the Court in cases of this kind. He thought the Executive officer was the proper person to take the necessary step. He wished 1064 to point out that the prosecutor in a criminal case was often only a name. Therefore the Director of Public Prosecutions ought to be able to apply for this certificate. He thought it was quite novel to have an appeal direct from the High Court to the House of Lords. The power of the House of Lords to take the opinion of the Judges still existed, and probably in cases of this kind they would take that course. If this Amendment was adopted it would be necessary to provide that the Director of Public Prosecutions should have charge of the proceedings on the part of the prosecution in the House of Lords.
§ SIR JOHN WALTON
said he was pre pared to amend the Amendment so as to give the Director of Public Prosecutions, as well as the prosecutor or defendant, power to obtain the certificate. He would move his Amendment in the following altered form:-"If in any case the Director of Public Prosecutions or the prosecutor or defendant obtains the certificate of the Attorney-General that a decision of the Court of Criminal Appeal involves a point of law of exceptional public importance, and that it is desirable in the public interest that an appeal should be brought, he may appeal from that decision to the House of Lords, but subject thereto."
§ Amendment, as amended, agreed to.
§ MR. BOULTON (Huntingdonshire, Ramsey)
moved to insert in Clause 2, after the word "registrar" the words "and deputy registrar" His object was to provide that in the case of the illness or absence of the registrar, the deputy registrar should be able to take his place.
Amendment proposed to the Bill—1065In page 2, Hue 23, after the word 'registrar' to insert the words 'and deputy registrar' "—(Mr. Boulton.)
§ The Amendment was not seconded.
§ Amendment proposed to the Bill—
§ "In page 2, line 28, to leave out the word 'Supreme' and to insert the words 'King's Bench Division of the High.'"—(Sir John. Walton.)
§ Amendment agreed to
§ *SIR WILLIAM ANSON
moved an Amendment to Clause 3 limiting the right of appeal to persons convicted ''of an indictable offence other than an indictable offence triable by summary jurisdiction'' He reminded the Attorney-General that there were a very large number of cases of indictable offences which were triable on summary jurisdiction, but in which the magistrate had to put before the prisoner the option of being dealt with summarily or sent to trial. It would surely be right that the prisoner should be informed that if he chose to go to quarter sessions or assizes he would have a right of appeal against the conviction and sentence. There was also the right of the prisoner, wherever a court of summary jurisdiction could give a sentence of more than three months imprisonment, to claim to go before a jury and have his case treated as an Indictable offence. To allow this great bulk of cases which were now dealt with at the smallest possible expenditure of time to come within the class of cases carrying with them a right to an appeal under this Bill, would overwhelm the Court with work and would bring under the notice of his Majesty's Judges a number of cases which were really unworthy of their consideration. He asked whether an accused person under the circumstances he had described ought not to be informed of the prospect before him if he chose to be tried by quarter sessions. He thought the framers of the Bill had somewhat under-rated the activities of local practitioners. Until the prisoner was convicted, the solicitor would have no particular object in framing the defence with any elaborate subtlety. As soon as the prisoner was convicted there came the opportunity of 1066 making out a case for the Court of Appeal. These who moved in criminal circles, or in the neighbourhood of such circles, were not so particular about truth as one would wish, and if they found after a prisoner had been convicted that certain evidence would have been of value to the prisoner at the trial had it been forth coming, persons would be found who would not be deterred by their regard for truth from putting the evidence before the Court of Appeal. To allow the great bulk of cases which were now dealt with at the smallest possible expenditure of time, to come within the class of cases carrying with them a right to an appeal under this Bill, would over whelm the Court with work and would bring under the notice of His Majesty's Judges a number of cases which were really unworthy of their consideration.
§ Amendment proposed to the Bill—
§ "In page 2, line 33, to leave out the words 'on indictment,' and insert the words 'of an indictable offence other than an indictable offence triable; by summary jurisdiction.'"— (Sir William Anson).
§ Question proposed, "That the words 'on indictment' stand part of the Bill."
§ SIR JOHN WALTON
said the proposal of the hon. Baronet would unduly limit the scope of the Bill. It was not intended to afford any appeal from convictions by summary process. The whole scope of the Bill was to provide an appeal from convictions obtained before a judge, or chairman of quarter sessions, and a jury. It was obvious that a trial before a magistrate or a bench of magistrates was in an entirely different position. There was already a Court of Appeal applicable to such cases. He thought the short answer to this Amendment was that if a case could be tried by a Judge and jury, why should not the result be the subject of 1067 appeal? He did not think it would be proper to draw a limiting line such as that proposed, and he hoped his hon. friend would not press the Amendment.
§ Question put.
§ The House divided—Ayes, 185; Noes, 37. (Division List No. 295.)1069
|Adkins, W. Ryland D.||Gladstone, Rt.Hn Herbert John||O'Brien,Kendal (TipperaryMid|
|Agnew, George William||Glendinning, R. G.||O'Brien, Patrick (Kilkenny)|
|Ainsworth, John Stirling||Goddard, Daniel Ford||O'Connor, T. P. (Liverpool)|
|Alden, Percy||Gooch, George Peabody||O'Donuell, C. J. (Walworth)|
|Ashton, Thomas Gair||Grant, Corrie||O'Grady, J.|
|Atherley Jones, L.||Greenwood, G. (Peterborough)||O'Shaughnessy, P. J.|
|Baring, Godfrey (Isle of Wight||Gulland, John W.||Philipps, Owen C. (Pembroke|
|Barker, John||Halpin, J.||Pickersgill, Edward Hare|
|Barlow, Percy (Bedford)||Hart-Davies, T.||Pollard, Dr.|
|Barnes, G. N.||Harvey,W.E.(Derbyshire, N.E.||Power, Patrick Joseph|
|Barran, Rowland Hirst||Haslam, Lewis (Monmouth)||Price, C. E. (Edinb'gh, Central|
|Barry, Redmond J. (Tyrone,N.||Haworth, Arthur A.||Rainy, A. Rolland|
|Beale, W. P.||Hazleton, Richard||Raphael, Herbert H.|
|Beauchamp, E.||Helme, Norval Watson||Redmond, William (Clare)|
|Beaumont, Hon. Hubert||Henderson, Arthur (Durham)||Renton, Major Leslie|
|Bell, Richard||Higham, John Sharp||Richards, T. F.(Wolverh'mpt'n|
|Bellairs, Carlyon||Hobart, Sir Robert||Robertson, J. M. (Tyneside)|
|Bennett, E. N.||Hobhouse, Charles E. H.||Roche, John (Galway, East)|
|Bethell, T. R. (Essex, Maldon||Hodge, John||Rogers, F. E. Newman|
|Birrell, Rt. Hon. Augustine||Hogan, Michael||Runciman, Walter|
|Black, Arthur W.||Holden, E.Hopkinson||Rutherford, V. H. (Brentford)|
|Boland, John||Horniman, Emslie John||Samuel,Herbert L.(Cleveland)|
|Bottomley, Horatio||Hudson, Walter||Schwann,Sir C.E. (Manchester)|
|Boulton, A. C. F.||Illingworth, Percy H.||Seaverns, J. H.|
|Bowerman, C W.||Jenkins, J.||Seddon, J.|
|Branch, James||Jones,Sir D.Brynmor-(Swansea||Shaw, Rt. Hon. T. (Hawick B.)|
|Brigg, John||Jones, William (Carnarvonshire||Sheehan, Daniel Daniel|
|Brunner, J.F.L. (Lanes., Leigh)||Jowett, F. W.||Sinclair, Rt. Hon. John|
|Burns. Rt. Hon. John||Joyce, Michael||Smyth, Thomas F. (Leitrim,S.)|
|Byles, William Pollard||Kearley, Hudson E.||Soares, Ernest J.|
|Carr-Gomm, H. W.||Kekewich. Sir George||Steadman, W. C.|
|Causton,Rt.Hn. Richard Knight||King, Alfred John (Knutsford)||Strachey, Sir Edward|
|Cheetham, John Frederick||Laidlaw, Robert||Straus, B. S. (Mile End)|
|Cherry, Rt. Hon. R. R.||Lambert, George||Strauss, E. A. (Abingdon)|
|Churchill, Rt. Hon. Winston S.||Law, Hugh A. (Donegal, W.)||Summerbell, T.|
|Clarke, C.Goddard (Peckham)||Layland-Barratt, Francis||Taylor, John W. (Durham)|
|Cleland, J. W.||Leese,Sir Joseph F.(Accrington||Tennant, H. J. (Berwickshire)|
|Collins, Stephen (Lambeth)||Lewis,John Herbert||Torrance, Sir A. M.|
|Collins,SirWm.J.(S.Pancras,W||Lloyd-George, Rt. Hon. David||Toulmin, George|
|Condon, Thomas Joseph||Lundon, W.||Ure, Alexander|
|Cooper, G. J.||Luttrell, Hugh Fownes||Walton,Sir John L.(Leeds,S.)|
|Corbett,C.H.(Sussex,E.Grinst'd||Macdonald, J. R. (Leicester)||Ward,W. Dudley(Southampton|
|Cornwall, Sir Edwin A.||Macnamara, Dr. Thomas J.||Wardle, George J.|
|Cotton, Sir H. J. S.||Macpherson, J. T.||Wasner, Thomas Courtenay T.|
|Cox, Harold||MacVeagh,Jeremiah (Down, S.||Wason,RtHn.E(Clackmannan|
|Crean, Eugene||MacVeigh,Charles (Donegal, E.||Wason,John Cathcart(Orkney)|
|Crombie, John William||M'Killop, W.||Waterlow, D. S.|
|Crooks, William||M'Laren, Sir C. B. (Leicester)||Watt, Henry A.|
|Davies, Timothy (Fulham)||Maddison, Frederick||White, J.D. (Dumbartonshire)|
|Dewar, Arthur (Edinburgh, S.)||Markham, Arthur Basil||White, Luke (York, E.R.)|
|Dewar, SirJ. A. (Inverness'sh'||Massie, J.||White, Patrick (Meath, North|
|Donelan, Captain A.||Masterman, C. F. G.||Whitehead, Rowland|
|Duncan, C. (Barrow-in-Furness||Meagher, Michael||Whitley,John Henry(Halifax)|
|Dunn, A. Edward (Camborne)||Menzies, Walter||Williams, Llewelyn(Camarth'n|
|Dunne,Major E.Martin(Walsall||Morton, Alpheus Cleophas||Wilson, Henry J.(York,W.R.)|
|Elibank, Master of||Murnaghan, George||Wilson,J. H. (Middlesbrnugh)|
|Erskine, David C.||Murray, James||Wilson, P. W. (St. Pancras, S.)|
|Everett, R. Lacey||Myer, Horatio||Wilson, W. T. (Westhoughton)|
|Farrell, James Patrick||Newnes, F. (Notts, Bassetlaw)||Young, Samuel|
|Fiennes, Hon. Eustace||Nicholls, George|
|Flynn, James Christopher||Nicholson,Charles N.(Doncast'r||TELLERS FOR THE AYES—Mr. Whiteley and Mr. J. A. Pease.|
|Gilhooly, James||Nolan, Joseph|
|Gill, A.H.||Norton, Capt. Cecil William|
|Anson, Sir William Reynell||Fell, Arthur||Roberts,S.(Sheffield, Ecclesall)|
|Balcarres, Lord||Fletcher, J. S.||Salter, Arthur Clavell|
|Banbury,Sir Frederick George||Hardy,Laurence(Kent, Ashford||Sassoon, Sir Edward Albert|
|Bignold, Sir Arthur||Harrison-Broadley, H. B.||Sloan, Thomas Henry|
|Bridgeman, W. Clive||Hay, Hon. Claude George||Smith,F.E.(Liverpool, Walton)|
|Bull, Sir William James||Hornby, Sir William Henry||Thornton, Percy M.|
|Butcher, Samuel Henry||Kimber, Sir Henry||Turnour, Viscount|
|Carlile, E. Hildred||Liddell, Henry||Wolff, Gustav Wilhelm|
|Cave, George||Long, Col. Chas. W. (Evesham)||Wortley, Rt.Hon. C. B.Stuart|
|Cecil, Evelyn (Aston Manor)||Lonsdale, John Brownlee||TELLERS FOR THE NOES—Viscount Valentia and Mr. Forster.|
|Coates,E.Feetham(Lewisham)||Lowe, Sir Francis William|
|Craik, Sir Henry||Meysey-Thompson, E. C.|
|Dalrymple, Viscount||Nicholson, Wm.G.(Petersfield)|
Motion made and Question, "That the Debate be now adjourned,"—(Lord Balcarres)—put, and agreed to.
§ MR. RAWLINSON (Cambridge University)
moved to leave out sub-section (d), which extends, with the leave of the Court of Criminal Appeal, the right of appeal on grounds other than these of law—that is to say "on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal.'' He said this sub-section raised the most important question in the Bill. The opponents of the measure had little objection to allowing the right of appeal on questions of law, It was to the unlimited right of appeal on questions of fact which would be set up by this sub section that the opponents based their objection. Ho ventured to say that the majority of these who had experience of criminal work—Judges, chairmen of quarter sessions, and lawyers who practised in the criminal courts—had come to the conclusion that the Bill, if passed in its present form, would be absolutely unworkable. In the event of the Government not accepting the Amendment to omit this sub-section, he reserved to himself and his friends the right to move Amendments later on with the view to such modifications being made as would do away with the objection they now had to the sub-section. It was proposed that every prisoner should have the right 1070 to apply for leave to appeal on matters of fact as well as of law. If a man brought before a Court, say in Cornwall, pleaded not guilty, and after trial was convicted by the jury, he would be more than human if he did not apply for leave to appeal. If he could get leave to appeal, he would lose nothing. There were reasons why a prisoner's friends should assist him to appeal. In the ordinary case which came before quarter sessions a trial might last a whole day, and a full note of the case was to be taken by a shorthand writer. If the Registrar wanted the transcript, that would involve an expense of £5 or £6. Then the solicitor and counsel who conducted the case at the trial might have the right to appear at the expense of the country when the case came before the Court of Appeal. Therefore, there were persons interested in an appeal being lodged. These observations applied to the man who had been wrongfully convicted, and who probably was justified in taking advantages of every means the law allowed him to vindicate his character. But in the case where a prisoner had been rightly convicted, there would be the same right to ask leave to appeal. If that man was ever to go back into the world again, he would be forced to say "I do not acquiesce in the verdict of the jury, I want to go the Court of Appeal.'' 1071 The result would be that there would be such a glut of business that the Court of Appeal would not be able to get through it unless the work was done in a perfunctory way. If the work was to be done in a perfunctory way, this Bill would be an absolute farce and delusion. They would have 600, 700, or 800 cases at least coming before the Court of Appeal in one year asking for leaves to appeal, and, even if the three Judges sat not less than forty weeks in the year, they would be fully occupied hearing applications. That would make the Bill in its present form a mere delusion, and a farce. Instead of a prisoner getting a better chance, it would be worse for him After he had got leave to appeal, the appeal would have to be heard before the Court, and for the first time in the annals of criminal law they were to have trial by three Judges in substitution for trial by jury. He challenged the Attorney-General to find any precedent for this. Assuming that a jury had convicted a person of one offence, the Court of Appeal could set that sentence aside and find him guilty of another offence of which the jury had not found him guilty. The Court would have power to send for additional evidence, but they could hardly expect them to do so in the majority of cases. This appeal upon facts was said to be for the benefit of the prisoner, but he ventured to submit that it would neither be in his interest nor in the interest of the good administration, of the criminal law. Juries and chairmen of quarter sessions were only human, and, if the Bill were passed, they would know that the final word did not rest with them, and that a prisoner could go to the Court of Appeal; and whereas now they had a keen sense of their responsibility and always gave a prisoner 1072 the benefit of any real doubt, they would be inclined to think that if they made a mistake the Judges above would put it right. Of course, a jury would not convict a man simply because he had the right of appeal, but, if they were divided, the fact might change the balance of opinion in favour of his conviction, whilst under the existing law the balance of opinion went in favour of acquittal. He wished to deal with the case of the innocent man wrongly convicted. Such cases were not so frequent as the Press seemed to indicate. He had still confidence in juries at quarter sessions, and he had had considerable opportunity of seeing their work. An innocent man wrongly convicted would apply for leave to appeal, and, if he got it, his case would be heard before three Judges by the same technical rules of evidence as the Court below. Supposing they upheld the conviction, or supposing leave to appeal was refused, he would have power to apply to the Home Secretary. Would not this procedure, however, considerably weaken not only the position of the Home Secretary, but also the chances of the prisoner of receiving money as well as justice at the hands of the Secretary of State? It would be a strong thing if the Secretary of State intervened in a case before the man had exhausted all the proper legal remedies afforded him. Surely it would be practically impossible for the right hon. Gentleman to intervene where a prisoner had not been to the Court of Appeal. The Home Secretary must not for a moment suppose he was going to stop popular clamour, for which purpose the Bill was mainly introduced. Newspaper critics were not so logical that they would be deterred from criticising the judgments of three especially selected Judges. Attempts thus to 1073 prevent criticism were unworthy of public officials, and if the meaning of giving this right of appeal was to destroy news paper criticism he thought it would fail as it ought to fail. A person who administered the criminal law, however humble his position, should do his duty firmly to the best of his ability and be absolutely indifferent to criticism. The same thing applied to the Secretary of State. He ventured to press this point very strongly upon the House, and to ask them to reject the clause in its present form. Instead of doing good it would do harm. It would weaken the responsibility of juries and the position of the Home Secretary, and it would injure the chances of the persons who appealed to him. Furthermore, the Court of Appeal would be unworkable, and would bring discredit instead of credit to the criminal law. The criminal law at present was the one institution which could bear the light and defy criticism, and the pro posed unlimited right of appeal on questions of fact was unnecessary, and would tend to injure the administration of justice in the country.
§ *MR. CAVE
seconded the Amendment. He said he had for many years been in the habit of trying prisoners with juries, and he thought with his hon. and learned friend that it was a mistake to give unlimited power of appeal on questions of fact. He had not the least doubt as to the desirability of giving a right of appeal on points of law, and if there had been an appeal on points of law the error which occurred in the Beck case would have been remedied at once. But it was contrary to the opinion of the very great majority of persons who had experience in the criminal law that there should be 1074 an unlimited right of appeal on questions of fact. It was opposed by the majority of the Judges, by the late Lord Chief Justice, and by the present Lord Chief Justice in a speech of very great weight made in the other House, and had been referred to with disapproval by Judges in charges to grand juries. One Judge of great distinction had said:—Such of us as have experience of Courts of Appeal on questions of fact in foreign countries know something of the abuses which these Courts create. They are the resort of rogues, who by money and delay trick justice of her due.When an experienced Judge with all the responsibility of his office used such words as these, he thought the House ought to pause before it lightly made the proposed change. It would be a complete reversal of the criminal system, for it was now proposed for the first time that the verdict of a jury might be set aside by three Judges. He knew that many Members were under the impression that the verdict of a jury in civil cases might be set aside on questions of fact; but they were mistaken. It was only when the verdict was not founded on any evidence or was what was called a perverse verdict—a verdict which no reason able man would give—that it could be impeached. In criminal cases no such appeal had ever existed, and he thought the proposal was founded on a wrong view of the criminal law. The trial of a man on indictment was not a case where one side was striving for victory over the other; it was really a solemn public inquiry, by a jury drawn from and representing the public, into the question whether the prosecution could prove beyond doubt that the person charged was guilty of the alleged offence. Everything was in 1075 favour of the person accused and opposed to the possibility of a wrong conviction. They were going to change all that and to substitute for trial by a jury, trial by three judges, who might, while acquitting a man of the charge upon which he had been tried and convicted, convict him on an altogether different count, and sentence him for an offence for which he had never been tried by a jury. It would be an injustice to convict a man in that way. Apart from that, he considered that there would be some danger in empowering these Judges to acquit a man of an offence of which he had been convicted by a jury. It would be a different thing if power were given to the Judges to order a new trial; but, when a man had been unanimously convicted by a jury who had had him before them and had seen and heard the witnesses, it was undesirable that three Judges, how ever eminent, should be authorised on the mere perusal of shorthand notes to release him altogether. He had a good deal of admiration for the way in which appeals had been dealt with by the Home Office, but even the Home Office admitted that it was not satisfactory that they should decide upon the case without seeing the witnesses. The same thing j applied to the proposed Court of Appeal, and he thought that in the interests of justice the right of that Court should be confined to ordering a new trial. There might be objections even to that course, but the main objection to the present Bill would not apply. He had followed the discussion carefully, and he still held the view that the step which they were asked to take was not in the interests of the administration of justice. It would strike a blow at the present system, and would lead to results which few Members really foresaw.
§ Amendment proposed to the Bill
§ "In page 3, line 1, to leave out paragraph (b) of Clause 3"—(Mr. Rawlinson.)
§ Question proposed, "That the words 'with the leave of the' stand part of the Bill."
§ LORD BALCARRES
said he was not familiar with the details of the Bill, but he respectfully submitted that the two speeches to which they had listened were of a character to demand some reply, and he begged to move the adjournment of the debate.
§ Debate to be resumed upon Monday next.