§ Order for Second Reading read.
§ Order for Second Reading read
§ Motion made and Question proposed, "That the Bill be now read a second time."
§ MR. RAWLINSON (Cambridge University)
opposed the Bill, which, he said, was divided into three parts. It gave leave to every criminal to appeal on any point of law which arose at the trial. He had no particular objection to that provision, for it had been recommended by a Royal Commission. But the present differed from any previous measures in that it allowed an appeal on any question of fact, and, with the leave of the Court of Appeal, it allowed an appeal from a sentence. When the hon. and learned Attorney-General introduced the Bill under the ten-minutes rule he dealt with the wide generality, which must always be attractive to the public, that every person convicted should have a right to state his case before a higher Court. It was only when they came to the particular facts of the case that they found these generalities broke down. One of the great objections to the measure was its expense. The taking of shorthand notes at every criminal trial at assizes or quarter sessions would be paid for by the country. If a person were convicted at quarter sessions he could apply to the Court of Criminal Appeal for leave to appeal, and he would be entitled to come, say, from the north of England to London at the expense of the taxpayers. In his opinion, if such an unlimited right to apply to the Court of Appeal for leave to appeal on every question of fact were allowed, the machinery of the Bill must inevitably break down, for the expense and the labour were too great for any 283 tribunal effectively to carry through. The ground for leave to appeal in regard to a particular sentence was safeguarded to this extent, that any person could appeal for leave to appeal against any sentence, however small or trivial, but that if he got leave the Court of Criminal Appeal could either increase or reduce the sentence. That was relied upon as a deterrent in certain cases against these appeals. His real reason for opposing the Bill, however, was the respect in which the vital part of the Bill differed from the recommendations of any Committee that had ever sat to consider the subject. In regard to appeals on questions of fact, it left to the Court of Criminal Appeal the unrestricted right of giving leave to appeal. His main objection to this Bill was that it was absolutely unworkable. The expense, which had apparently never been estimated, would be exceedingly great, and it would be unworkable in other ways which he proposed to indicate. A person having been convicted and sentenced would apply for leave to appeal at once. For that purpose he would be entitled to come to London and put his case before the Court of Criminal Appeal. He would naturally have no counsel or solicitor, and the Court of Criminal Appeal could then assign him counsel and solicitor to fight his case for him at the expense of the country. The prisoner, therefore, would be entitled to come to London, it might be from the North of England, to appeal to this Court consisting of three, five, or seven Judges, which Court probably would have to sit all the year round to hear applications of this character. He would present the shorthand notes of the Court below, and when once that had been done the Public Prosecutor had to appear unless in the case of a private prosecution the private prosecutor was sufficiently public spirited to come forward. Let the House consider what a tremendous expense would be incurred. If they made the proceeding difficult, if everybody was not allowed to take advantage of it, or restrictions were put upon it, then it would probably operate against the newly convicted who would not know the ropes—if he might use that phrase—like old offenders. When they got before the Court of Criminal Appeal, liberty to appeal would be given or it would not. If leave was given, 284 great expense would be incurred for no particular reason. It was upon that branch of the procedure that he ventured to prophesy a breakdown, in the first instance, of the machinery. Assuming that liberty to appeal was given, and the Court re-tried the case, it would re-try it not upon evidence, unless it was specially asked for, and not before a jury, but by three Judges sitting in London.
§ MR. RAWLINSON
said it was not like all appeals. There was no other appeal like this. On the contrary, if they asked for a new trial, and it was granted, the case was re-tried before another jury. That was just what did not happen under this Bill. A case would not go to a fresh jury, but it would be re-tried before three Judges, who, unless they chose to ask for witnesses, would never hear witnesses and there would be no jury to try the man at all. It was not, therefore, like other appeals; it was absolutely and intrinsically an innovation. At present, in any case tried by a jury, if the Court of Appeal found that they had come to a wrong conclusion upon a question of fact, that the verdict was against the weight of the evidence, they sent the case back to be re-tried by another jury. But the appeal now proposed was an innovation, because the re-trial would take place without witnesses, possibly without evidence, but only on such materials as were afforded by the notes of the Judge or the Chairman of Quarter Sessions, the shorthand writer's notes, and the statements of counsel who appeared before the three Judges. Was that a satisfactory mode of trial? Not only that, they apparently empowered the Court of Criminal Appeal to find any sort of verdict they chose. If it was a case of murder and it came from the Court below on the question whether or not the man charged committed the crime, the Court could find the man was guilty, or not guilty, or they could find him guilty of manslaughter, or arrive at some other of the verdicts which were set out in the Bill. Further than that, the Court could literally 285 go to the extent of taking a defence which had never been set up by the prisoner. There was the question of insanity which had been brought before them in a recent case in America. They would really be following in the steps of the American case. A man was tried for murder and the jury convicted. The defence in the Court below was on the facts only, and in the Court of Criminal Appeal the defence on the facts was still persisted in; but under the Bill the Court could find that the man was guilty of the act, but could also find that he was insane at the time he committed it. That was a bad innovation and contrary to our criminal law at the present time. Personally, he thought it was undesirable to grant an appeal on a question of fact, but whether or not they thought it desirable, his reason for opposing the Bill was that he considered it absolutely unworkable. The Bill did not solve the problem, which he ventured to think was unsolvable. It was got up without any regard to expense. There was the expense of the transcript of the shorthand writer's notes, the expense of the Public Prosecutor appearing in every case of an application for leave to appeal, and there was the expense of providing counsel for a poor prisoner. All that had to be done in the Court of Criminal Appeal. But there was another form of expense which was not indicated in the Bill and which had not been referred to by the Attorney-General, and that was the expense of the judicial tribunal which they would have to keep up to keep pace with the work thrown upon it. Three King's Bench Judges were to be told off for the work, and they would be kept constantly employed. In the Court of Appeal and in the King's Bench Division they were blocked by arrears, and the number of Judges was not sufficient to do the work. The Attorney-General suggested that they were going to have more Judges.
§ MR. RAWLINSON
said there was no sort of pledge that Judges were to be appointed for the purposes of the Bill. It could be easily put in the Bill that 286 three Judges should be appointed to do this work. It was not in the Bill because they could not afford it at the present time. Already they were pressing for more Judges for the Court of Appeal and the King's Bench Division, and the need was a very urgent and real one. But they were met at every turn by the non possumus of the Treasury that they could not for the moment relieve the gigantic pressure on the Court of Appeal and in the King's Bench Division. If they could not do that, how could they provide the three Judges required under this Bill? He moved the rejection of the Bill because it was unworkable. If it had been confined to clauses based on the recommendation of the Beck Committee, as to appeals on points of law, it would have been a different Bill, and he would have been in favour of it, But the innovation of this measure was the liberty to ask leave to appeal on questions of fact, and the granting of leave to appeal on questions of fact. He moved, "That the Bill be read this day six months."
§ MR. CLAVELL SALTER (Hants, Basingstoke)
in seconding, said that although there were features in the Bill which he supported, he felt himself constrained, after giving the matter as much consideration as he could, to support the Motion of his hon. friend. It was not as though they were considering whether or not they should devise machinery for checking that great calamity, the conviction of an innocent man, because they had such machinery in existence already. With regard to sentences of undue severity and wrongful conviction, they had at the present time in the Home Office machinery which revised both sentences and convictions. The practical question for them to consider was not whether they should devise machinery for revising sentences and convictions, but whether the machinery provided by this Bill was not more costly and less efficient than the machinery they had already got for that purpose. He did not contend that the present machinery was in any way perfect, but he held that the machinery proposed under the Bill would be more costly, more cumbrous, and more dilatory, as well as less practically effective. With regard to the appeal against sentence he desired to say that 287 the machinery proposed to be set up was unnecessarily cumbrous, and he thought the Court should be given power to dispose finally of the matter and revise or alter the sentence upon the original application for leave to appeal against the sentence and then one application might take the place of three. The Bill proposed to set up a Court of Appeal from the verdict of a jury, with, so far as he could gather, very limited powers. Sub-section 1 of Section 4 which limited the powers of the new Court of Appeal seemed to him to be the most important. He was not quite sure that he understood Section 4. Under that clause the new Court of Appeal was to be at liberty to set aside the verdict of the jury convicting a man in any case where on a civil appeal the verdict of the jury could be set aside. It then went on to say that it might set aside the judgment on very much wider grounds. He did not clearly understand what the second provision added to the powers of the Court. What was meant was that wherever a verdict could be set aside in a Civil Court it might be set aside in a Criminal Court. If that was what the section meant then this Bill gave little or nothing to the convicted man who thought his conviction was unjust. What were the grounds on which a verdict could be set aside on a civil appeal? They were that the verdict was against the weight of evidence, that was, that there had been a perverse unreasonable verdict. If they were going to wait in a criminal case until the jury had found a verdict of conviction which was perverse they would never have such a case. Juries in criminal cases, acting in the teeth of the evidence, might acquit, but they never convicted in the teeth of the evidence. There would be no such cases as that brought before the Court of Appeal. With regard to appeals on grounds of mistake, the discovery of fresh evidence and such matters, there would be few, if any, applications which would comply with the rule laid down in the Bill that they must bring forward grounds which would induce a Civil Court of Appeal to set it aside. It would not be possible in a Court of Criminal Appeal to rely upon those rules enforced by public opinion in a Civil Court of Appeal. In a Civil Court of Appeal 288 public opinion supported the Court in being satisfied with something less than abstract justice in the Court below, but the moment they went into a Court of Criminal Appeal, and suggested to any Court that there was such a thing as a man in prison undergoing punishment and wrongfully convicted, the whole complexion of the thing would be altered in a moment, and no Court could attempt, or would be supported by public opinion in attempting, to enforce the rigid rules which limited Civil Courts. Counsel would appear and say "My client was undefended in the Court below, he is a poor man and has never been in a Court of Justice before, and he did not understand it was open to him to give evidence. He thought his wife was not an admissible witness, and other witnesses might have been called. The Court has not got to the bottom of the matter, and there is reason to fear that the conviction was unjust, and I ask for leave to appeal." That was the kind of application that would be made and whatever the House might say about the rules which governed a Civil Appeal, no Court of Criminal Appeal would reject an application of that kind if they saw even the slightest grounds to fear that an injustice might have been committed. Therefore, what would happen in practice would be that the Court of Appeal would be uneasy in view of suggestions of that kind and would proceed to deal with the matter. In what way were they to deal with this question under the Bill? He confessed that it was a little difficult to understand what they were to do. The Bill was very peremptory and provided that if they set aside the verdict of the jury they must enter a verdict of acquittal. Was it to be supposed that the Court of Appeal, merely because their confidence in the conviction had been shaken, merely because they had had some reason, not to think the man innocent but to doubt whether he was fully proved guilty, would proceed to set aside there and then the verdict of the jury and set that man free? He ventured to say that no Court would do that. There was only one way in which the Court of Criminal Appeal could act if it was to be a practical reality. It had to be satisfied prirna facie that there was some reasonable cause to fear that there had been a miscarriage, and then, having arrived at the conclusion, the 289 matter must be reheard and retried de novo upon its merits either in the Court of Appeal or in the Court from which it came. In every case where it gave leave to appeal it would have to exercise those powers which the Bill gave it of summoning witnesses and hearing the matter de novo. No one acquainted with these matters would suggest that the Court of Appeal would set aside the verdict of a jury on the mere investigation of documents, petitions, or shorthand notes or reports. When a case had been tried with great pains by the Judge of Assize and a jury, and after careful examination and cross-examination they had found the man guilty, was any Court of Appeal to set aside the verdict and acquit the man on the strength of a private examination of a document? Would public opinion be satisfied with that? It should not be overlooked that public opinion was not always on the side of the prisoner, and there was a public opinion which desired that justice should be done and crime properly punished. If a case, after being tried at great length, was again tried on appeal, and after examining certain documents and shorthand notes the man was released, that was not a result which would satisfy public opinion. In practice the Bill meant the continuous retrial in London of a large amount of ordinary criminal business. That was a very serious prospect and a very serious undertaking. The cost and the inconvenience involved was something which the Government and the House ought seriously to consider. How many applications were there likely to be for leave to appeal? There were some 10,000 men convicted on indictment every year in this country. How many of those were likely to ask for leave to appeal against the justice of their sentence? He believed they would almost all do so, and why should they not, because they would have every assistance under this Bill? They would have counsel. This would all tend to delay their sentence and they might possibly gain something, but they could not possibly lose anything. His belief was that the vast majority of prisoners convicted would ask for leave to appeal against their sentence. When a man was convicted under this Bill he was to be treated for the first ten days as a person under detention. His 290 friends and solicitor would have access to him, and it would be very strange indeed if the solicitor was not able to find some very specious ground upon which an application could be based for leave to appeal. There would be a great number of applications, they would have to be made to the full Court, and they would be lengthy matters, because they would involve the examination of the shorthand notes in every case. There were some 200 working days in the year, and if half the prisoners convicted applied, and the Court was able to deal with as many as twenty-five cases every day—which he did not suppose they would—half of the 200 working days of the year would be so occupied. That calculation left out of account the main work of this Court in rehearing cases. They would be rehearing cases with witnesses. He did not think hon. Members realised the length of time that even an ordinary case like that of a man charged with stealing throe ducks would take. Such cases in the ordinary Courts took a long time and before three Judges they would take much longer. It would be said that "If you had heard the evidence you would have come to a different conclusion." That was why a Court of Appeal did not set itself up against the verdict of a jury. It merely sent down the case to be tried by another jury. That was where this Court of Appeal differed essentially from any other Court of Appeal in the country. A Court of Civil Appeal found error only. It had only to be satisfied whether a Court had gone wrong, and it was not concerned with what was the right conclusion of the matter. But this Court of Appeal would be called upon to do this. He asked the House to imagine the expense and inconvenience of the proposed Court. It would have to send for witnesses from all parts of the country under the powers given by this Bill, it would have to question them and try to get at the bottom of the case and the real truth of the matter. There were, he thought, considerations graver oven than those of expense and inconvenience to many people. With 10,000 convictions in a year the number of persons who had the misfortune to be summoned as witnesses was very large indeed. They were already put to great expense and inconvenience in going to Potty Sessions 291 and Assizes—going first before the Grand Jury and then before the Petty Jury—and it would be a hardship if they had to come to London and go through the matter again in a Court of Appeal. But there were worse mischiefs which might arise. He had spent the best part of his life in the presence of juries, and no small part of it in the presence of criminal juries. He thought there were few things finer in this country than the demeanour of a jury in any serious criminal case. That was, he believed, mainly because they felt that the life or the liberty of a follow creature was put into their hands to dispose of finally. If this Bill passed what would be the effect upon jurymen? What happened now? He instanced the ordinary doubtful case. The jury had been charged that if the matter was one merely of grave suspicion, they must acquit; and that if it amounted to practical certainty they must convict. They retired, and some of them would be for conviction, while others would think that the case did not go beyond grave suspicion. In nine cases out of ten prudence and caution would prevail, and the party for acquittal would triumph. How would juries deal with a case like that if this Bill were enforced? The Bill gave an appeal to one side. The appeal in civil cases was upon both sides. It would be said that if the jury wrongfully convicted the prisoner could appeal. He felt, as had been said by great lawyers in another place, that to set up a permanent Court of Appeal and invite the reconsideration of the verdicts of juries in criminal cases, would be to destroy finally that deep feeling of conscientiousness which was the great glory of our Criminal Courts, and the great safeguard of persons who were accused. He had heard a great Judge say that the common expression "the benefit of the doubt" was an odious phrase. In a sense it was odious, but it was a convenient phrase. If there was set up a Court of Criminal Appeal it was exactly the "benefit of the doubt" which the accused would in practice lose. If the House was going to pass the Bill, he urged the Government to consider carefully whether they ought not to give to the Court of Criminal Appeal the option, at their discretion, to order a re-hearing or re-trial, or whatever the proper expression might be. The case would then be sent down to the Assizes of the county 292 in which it occurred. He would not suggest the sending of it down again to Quarter Sessions. Considering the enormous expense to witnesses, he thought there would be every ground for sending the matter down to be retried in the country. That would mean an immense saving to the Court of Appeal, and no appreciable addition to the work of the Assizes. On the whole he viewed with alarm this proposal to set up a Court of Criminal Appeal. How many cases would there be in which this costly machine would operate to sift out cases of admitted injustice? No one doubted that in the Courts, not being infallible, the occasional calamity did occur of unjust conviction. This Court of Appeal would work at great expense and inconvenience to discover in the course of the year very few cases in which men had been unjustly convicted. The Home Office in doing this work now investigated these matters, and he had never heard any experienced man suggest that the Department did not do its work in the most admirable fashion. The Home Office was not restricted in its methods as the Court of Appeal would be. It was not limited by rules of evidence, and he thought it was a fact that in the majority of the very few cases in which the Home Office did trace out a miscarriage of justice it did so, not on any material placed before it by the prisoner or his friends, but on independent inquiry conducted on its own lines. He thought there were cases in which the Home Office had found that there had been miscarriage of justice where a Court of Appeal would not have interfered with the conviction. To substitute this most costly machinery for the present system would deprive our Criminal Courts of their principal glory in the deep sense of care, caution, and responsibility which was pervading the atmosphere of every Criminal Court in the country at the present time. He begged to second.
To leave out the word 'now,' and at the end of the Question to add the words 'upon this day six months."—(Mr. Rawlinson.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. A. J. BALFOUR
said he did not rise to support the Amendment or to 293 discuss the merits of the Bill. Nobody who had listened to his hon. and learned friend could have a doubt as to the enormous importance of the issue raised, and he rose to put before the Government the inconvenience of attempting at such a time a discussion of a Bill proposing such a great change in the criminal jurisprudence of the country. He had no charge to make against the Government of breach of faith; he did not even suggest that they had gone contrary to Parliamentary traditions; but the fact remained that some of those most capable of taking part in the discussion were absent because of a natural miscalculation. The Bill had come on unexpectedly, and the fact that there had been a miscalculation was evident from the fact that the Attorney-General was not in his place when the order was called. He did not think the Government would gain anything in economy of time by pressing on a discussion which would have to be interrupted at a quarter-past eight o'clock. Let the Government look at the benches behind them and note the absence of legal talent so often to be seen there. The Bill for the first time would introduce into criminal jurisprudence the power of Judges, in the absence of a jury, to decide on questions of criminality. It would be an entire change in what had hitherto been essential, and he did not think the Bill should be taken in an hour and a half accidentally and unexpectedly available through the drying up of the flow of eloquence upon the Butter Bill. He moved the adjournment of the debate.
§ Motion made, and Question proposed, "That the Debate be now adjourned."(Mr. A. J. Balfour.)
§ SIR JOHN WALTON
said herecognised the force of the right hon. Gentleman's remarks, and had no objection to his Motion. But, having regard to the considerable amount of business before the House, he hoped when the Bill came; on again the debate would not be prolonged.
§ MR. A. J. BALFOUR
said he would exercise any influence he possessed to prevent any discussion of the Bill being used to obstruct other business.
§ MR. S. T. EVANS (Glamorganshire, Mid.)
said that this Bill was of a very 294 important character, and he hoped that opportunity would be given to discuss it very fully. Its subject matter had been in the mind of law reformers for more than a generation, and a similar Bill was passed by the House of Lords last year. It had been said that when they came to discuss the details of the Bill, legal practitioners would have to say a good deal about them. But what about legal performers? Lord Eldon, who was a great lawyer, approved of capital punishment for the theft of articles of the value of 5s. The Bill ought to be discussed in a larger way in the interests of the public, and every effort should be made by the Government to pass it into law this session.
§ Debate to be resumed upon Monday next.