HC Deb 26 March 1935 vol 299 cc1878-86

Motion made, and Question proposed, "That this House do now adjourn."—[Sir F. Thomson.]

10.59 p.m.


I want to detain the House for two or three minutes to call attention to a matter of very grave public concern. It concerns the right of an individual to appeal against a conviction by a court of summary jurisdiction. I wish to bring to the notice of hon. Members a case in which a man convicted by such a court of a trivial offence gave notice of appeal. The notice was mishandled by the clerk to the justices, and by reason of the fault of the official of the court the man was deprived of his legal right of appeal. I suggest that this accident, which has inflicted a tragedy upon a humble citizen, has raised at the same time a question of grave public concern. The facts of the case I will briefly relate.

A certain John O'Neill, a young married man, employed by a dairy company as a milk roundsman, carried on his calling with success to his employers and with an increase of popularity amongst his customers to himself. He was well thought of until on a certain day the employer introduced a new and somewhat complicated system of book-keeping for the roundsmen. Upon the introduction of this complicated system, this man and many others employed likewise found themselves in trouble with their bookkeeping department, owing to alleged discrepancies between the amounts shown in their books and the amounts paid into the cashier, and this man, amongst others, was warned that this was an undesirable state of affairs. Eventually over a period it was found that this John O'Neill was short on the amount paid in by £3 9s. 10d., and a number of other employés were short as well. It is said by O'Neill that the matter was purely a book-keeping mistake. But with that we are not concerned. The fact remains that O'Neill was charged before the Wealdstone magistrates with embezzling £3 9s. 10¾d., and was sentenced to three months' imprisonment.

It is not my purpose, nor would it be proper for me, to comment on this sentence upon a first offender, but a solicitor was impressed by the fact that the sentence was very heavy on a first offender and he advised this young man to give notice of appeal. This the man duly did in the proper manner on the day following his conviction. He gave notice from Wormwood Scrubs prison to the clerk of the Wealdstone magistrates. This notice of appeal was duly received. It is admitted to be in good order. But for some reason that has not been disclosed the clerk to the Wealdstone justices omitted to deal with it in the prescribed manner and time, and the result is a very grave one: The Middlesex Quarter Sessions were unable to admit the appeal because of the delay occasioned in its presentation by the clerk of the court. This matter was regarded in legal circles as being of very great importance. A well known London solicitor took an interest in the case, and with the help of friends of the accused and a large number of his own customers a petition was prepared and sent to the Home Secretary, asking that in the circumstances the case should be re-opened. On 22nd November, after O'Neill had served two months in prison, the Home Secretary replied: The Secretary of State has caused inquiries to be made, and he agrees it was not due to any fault of his own that O'Neill lost his opportunity of appealing to quarter sessions against a conviction and sentence awarded against him by the summary court, but the Secretary of State has no power to secure that the appeal shall now be heard. So the unfortunate John O'Neill has served his three months' imprisonment. On his release this charge and conviction hung like a millstone around his neck. He was unable to secure employment and he found his whole circle blasted and poisoned. The matter was brought to my notice by the eminent firm of solicitors who regard this matter with very grave concern. On the 18th February I asked the Home Secretary a question which he was good enough to answer in this House. He again said that his attention had been drawn to the case, but there was no way of restoring to the defendant an opportunity of appealing. In answer to a supplementary question, he said this was all due to a misunderstanding and that he had looked into all the circumstances to see whether there was any way in which he could exercise his prerogative. I then made an appeal that if it was not possible to re-open the case and to make any retribution for this loss of an undoubted legal right, would it not be possible, since the sentence had been served, to expunge the record from the court rolls, so that this man should not carry the burden of this conviction for the rest of his life?

The right hon. Gentleman the Home Secretary was good enough to say, with his usual courtesy, that if I would lay all the facts before him and any fresh circumstances that there might be, he would reconsider the matter. The facts were again summarised, all the information was collected, and it was duly forwarded to the right hon. Gentleman, but there were no new facts. There is only one important fact in this matter, beyond the personal tragedy involved, and that is that a British citizen, who has an un- doubted right of appeal against a conviction by a court of summary jurisdiction—and in this case a court composed of lay magistrates who imposed a sentence of three months on a first offender for this, in my view, trivial and questionable offence, because this man still protested his innocence—that that individual should have lost that fundamental right by an error of a clerk of the court, and through no fault of his own.

I very much regret to inform the House that the Home Secretary has seen fit to inform me during the last few days that he has again examined the matter and that he can see no way in which he can do anything at all. I submit that there is a very grave principle involved in this matter. This man has lost his legal right through no fault of his own. It is a circumstance that might easily occur again. It might occur to any one of us, and this unfortunate man, young, able, energetic, with a wife and now the beginnings of a small family, finds himself not only with his occupation gone and his chances ruined, but in an unfortunate state of mind, which adds to his personal tragedy, in that he feels he is a victim of an evil process of law. I cannot help thinking that he is right in feeling that, and I would ask this House to consider the matter as one of some gravity and to ask the right hon. Gentleman whether something cannot be done, if nothing more, to remove the record from the roll, and further that steps should be taken so that, in the event of such a thing happening again, the accused, who may be innocent, shall not lose all his rights through a mistake of an official of the court over whom he has no control.

11.9 p.m.

The UNDER-SECRETARY of STATE for the HOME DEPARTMENT (Captain Crookshank)

I am sure that no one could possibly have any criticism to make upon the hon. Gentleman for having raised this important point to-night, nor indeed for the very moderate way in which he has stated the case. I have listened very carefully to all he said, and I think that on the facts there is nothing between us. After all, the House is not met here to retry this case. This is not the place, nor are we the right people to do it, nor have we full evidence in front of us. What actually occurred was that this man was prosecuted for embezzlement on no fewer than six charges.


I am sure the hon. and gallant Gentleman will allow me to say, in justice to this man, that "no fewer than six charges" conveys a sense of gravity which is explained by a series of daily entries in a book.


I had not finished my sentence. I am trying to put it as accurately as I can, but there were six different charges, and they involved actually a sum of about £3 10s. He was found to be guilty on three of them and was sentenced to a month's imprisonment on those three charges, to run consecutively, the other three charges being taken into account. There is no dispute about any of that. He was admitted to prison, and he then forwarded notices of appeal both to the clerk to the justices and to the company who were his employers and who had prosecuted him. There is no dispute about that; but the whole trouble which has arisen has been quite frankly due to a misunderstanding on the part of the clerk to the justices. He made a mistake—there is no denying that fact—with the unfortunate result that the time passed during which an appeal could be lodged. Owing to the misunderstanding that had arisen, the clerk to the justices failed to take steps to enter notice of appeal. Notice was not given, and there was no opportunity for an appeal to take place. That is the grievance which this man has, and which the hon. Gentleman has brought to the notice of the House.

My right hon. Friend had heard of this before my hon. Friend raised the matter in the House, because the solicitors at the beginning of November wrote to the Secretary of State and asked him either to authorise an appeal to be heard, or to pardon the prisoner, that is to say, before the sentence had expired. My right hon. Friend has no authority to over-ride the statute. If the statutory time within which an appeal can be lodged has passed, he has no power to deal with the matter from that point of view at all. Therefore, the first suggestion fell to the ground. The second suggestion was that the prisoner should be let off the rest of the sentence, because he had not had the opportunity to appeal. My right hon. Friend, in reply to the hon. Gentleman the other day, reminded him that the appeal would not necessarily have gone in favour of the prisoner. The court might quite well have increased the sentence, and we must not therefore assume—I think it is fair to say—that even if there had been an appeal there would have been any reduction in the sentence. The question then is: ought the remainder of the sentence to have been remitted, and, in view of the fact that there was this misunderstanding, and the right of appeal was lost, is the procedure under which these matters now come unsatisfactory and ought there to be some amendment of the law?

My right hon. Friend, on receiving these representations from the solicitors, naturally went into the case very carefully to see whether there were any grounds upon which he could recommend the exercise of the prerogative of mercy, in view of the fact that there had been this error. The police did not prosecute in this case; it was the company who employed the man, and therefore there was no police report. My right hon. Friend saw all the notes of evidence, went very carefully into the whole question, and found that there were no grounds for questioning the decision of the justices after the full hearing which they had had of this case, at which O'Neill had been legally represented. As there were no grounds in my right hon. Friend's opinion for recommending the exercise of the prerogative, there were no grounds for a free pardon, because in his view there were no grounds for questioning the decision, nor was the sentence, on the review which he then made, excessive. He gave the matter his most sympathetic consideration on, not one, but three occasions. The matter was first brought to his notice when the man asked to be released from prison, and again when my hon. Friend raised it in the House. In the exercise of the functions of his office, my right hon. Friend did not think it was a case in which he could recommend the exercise of the Prerogative. Some hon. Members may feel tempted to ask on what my right hon. Friend based that opinion. I need only say that it is a long-established constitutional practice observed by successive Secretaries of State for many years, that this is one of the functions inherent in their office of which they are not called upon to give an explanation, either in this House or to the public outside. Therefore, while the House can be sure that the most careful and sympathetic consideration has been given by my right hon. Friend to this case, he does not feel that it is one in which he can recommend the Prerogative to be used.

The hon. Member asked whether steps could be taken to prevent such a thing occurring in future. It is a little difficult to give any assurance of that kind, for this reason. It is admitted that it was a mistake and a misunderstanding on the part of the Clerk to the Justices, whose attention naturally has been called to the matter. The actual procedure now followed is the procedure under the Act of 1933. It is a little early to dogmatise as to whether that Act is going to be effective or not in all cases, but this is the first occasion on which any such incident has been brought to our notice, and, of course, if there were any likelihood of this recurring even once or twice, the matter would have to be reconsidered seriously. At the moment we have no reason to suppose otherwise than that it was just one of those cases of human error and fallibility to which all of us are prone. While we are naturally sorry at what has occurred, the fact remains that the man was tried, that the ordinary procedure of justice was carried out up to that point; and on full consideration my right hon. Friend proposes to leave the matter where it is, while being much obliged to the hon. Member for having called his attention to it.

11.19 p.m.


May I appeal to the right hon. Gentleman? He will realise that the Crown is the fountain of justice and the fountain of mercy. One understands that everybody makes mistakes and in this case a mistake has been made by a servant of the Crown in the administration of justice. In these circumstances it is not a matter of examining the merits of the conviction in the first instance; it is a question of an obvious injustice as regards appeal rights having been caused by a mistake which everybody regrets. Inevitably there will be created in the mind of this man a permanent sense of injustice. He will be up against the whole system of justice in this country. If the right hon. Gentleman or I met with similar circumstances, we should feel that the matter was entirely out of our control; we should always feel that, if we had only had the right of appeal, the conviction would have been wiped out. We should feel in that way if we were the appellants in the case. Surely this is just a case where the fountain of justice should be brought into play and the prerogative of mercy exercised—a case in which admittedly a mistake has been made by a servant of the administration of justice, which has materially altered the position of the person who was convicted. I am sure the right hon. Gentleman will agree that it does not seem a matter in which we should weigh up whether or not the man would have been likely to win on appeal. He has definitely been deprived of a right, and somehow or other that should be wiped out so as to give him again the free chance that he might have had, even if it was only a small chance, of getting the conviction wiped out if he had gone to appeal. There is nothing more important in the administration of justice in this country than to create the sense that justice has been done to the subject. It cannot do any harm in this case. It cannot form a precedent, unless, unfortunately, such a thing happens again, which we hope it will not. I beg the right hon. Gentleman for the sake of the good name of the administration of justice in this country, about which I care quite as much as he cares, that, having ascertained that this was a genuine and unavoidable mistake in the sense that all human beings make mistakes, and the individual having admittedly suffered by it, that he will not allow the man to have a sense of injustice all his life, and that he will, therefore, whatever the merits may be, wipe out the conviction and enable the man to start again. We hope and believe that because of this action the man would be all the better citizen of this country.

Adjourned accordingly at Twenty-two Minutes after Eleven o'Clock.