NEW CLAUSE.—(Amendment of 7 Edw. 7, c. 23, s. 9.) (Hansard, 14 April 1948)

§ Mr. Hogg

I beg to move, "That the Clause be read a Second time."

I think it might be convenient if I were to describe the purpose of this and the next new Clause on the Order Paper relating to the Criminal Appeal Act. It has long been complained of in our criminal law that the Court of Criminal Appeal has no power, as have other courts of appeal in this country, to order a new trial in circumstances where the previous trial has, for some reason, proved unsatisfactory. I think I may say, in moving this new Clause, the purpose of which is to give the Court of Criminal Appeal the right to order a new trial, that I have the support of a great body of opinion inside the legal profession and of repeated judicial statements of the opinion of the Court of Criminal Appeal itself. I have the support, too, of one of the most eminent academic lawyers in this country, who supported this Clause in a long letter in "The Times."

10.45 p.m.

The absence of the power to order a new trial has led to inconvenience and injustice in two separate ways. One of these, I think, is a hindrance to the conviction of the guilty, and the other is a hindrance to the rights of the innocent. So far as the guilty are concerned, the facts of the matter are these. Where a person is charged with an offence, and for any reason either the verdict of the jury does not make sense, or the learned judge is guilty of a technical misdirection which none the less is of such a character that it could not have had any influence on the jury's mind, the Court of Criminal Appeal is visited with the necessity of quashing the conviction and releasing the prisoner, even though most reasonable people would have considered the prisoner a guilty person. The Court of Criminal Appeal has again and again said that the proper remedy is to order a new trial, and I submit that that is the right course.

If the first of the Clauses standing in my name is accepted, it will have this effect, that where a convicted person appeals—and it must be remembered that the Crown cannot appeal from an acquittal—and the Court of Criminal Appeal comes to the conclusion that the appeal should be allowed, they have the power, if it is apparent that the interests of 1106 justice demand it, to order a new trial instead of simply quashing the conviction.

The other case is in the interests of accused persons. Hon. Members will recall that, in a recent case of murder for which a person was convicted, it so happened that, in the interval between the time of the conviction and the date fixed for execution, another person confessed to the very same crime. The convicted person thereupon asked for leave to appeal against his conviction on the basis that he wished to call fresh evidence before the Court of Criminal Appeal. Up to that time it was thought that the Act of 1907 covered the case, but it was decided by a very strong court that it did not exercise such a power. I was present and heard that decision, and I must say that I was rather shocked to think that an injustice might some day be done if the Court of Criminal Appeal would not hear fresh evidence in such a case. I found, however, that the decision was right and sound. The Court of Criminal Appeal was not a tribunal of the right kind to hear oral evidence, and the proper course would have been to have had a new trial.

I will not trouble the House with the phraseology of the Clauses, but I would say, incidentally, that there is a serious misprint. What I ask from the Attorney-General is that he should indicate that the Government are sympathetic to the view that the principle behind these new Clauses is right and that, either they will accept the new Clauses, or that they will frame new Clauses of their own which will cover the same points as those which I have put forward.

§ The Attorney-General (Sir Hartley Shawcross)

I must confess at the very outset that I have great doubt about the wisdom of the innovation which is proposed in this new Clause. I think there are occasionally before the Court of Criminal Appeal cases where the facts are perfectly clear, where there is no doubt that the jury's verdict was correct but where, owing, as my hon. Friend has said, to some possible technical mistake in the summing up or some mistake on the part of the prosecution, the Court of Criminal Appeal has been compelled to hold that there has been some misdirection or some wrongful admission of evidence and consequently, to allow the appeal and to let the appellant go free. 1107 But these cases are really very exceptional. I do not think that the interests of justice are substantially prejudiced by the fact that on occasion a guilty man may go scot-free. Certainly, I do not sleep uneasy in my bed, or allow my sense of justice to be outraged because now and again an accused person has in the past got the benefit of a mistake made by the prosecution or even, occasionally, by the courts.

Moreover, the Clause as drafted—and I appreciate that the hon. Gentleman is not wedded to the terms of the Clause as drafted—would enable a man to be tried again for an offence for which he had actually been acquitted, and I think that the case to which the hon. Member referred, that of Cooper and Compton, the two police officers, was actually a case of that kind. It was a charge of conspiracy based on particular, separate offences which were themselves also the subject of individual and distinct counts of the same indictment. The jury found that these men were not guilty on any of the individual counts which formed the basis of the general conspiracy charge; in other words, they clearly indicated by their verdict that they disbelieved the evidence of the prosecution on these individual charges, but none the less they found the prisoners guilty of conspiracy, thus holding that the greater did not include the less, at least on this occasion.

That was, of course, obviously a bad and illogical verdict, but retrial in such cases, on the individual charges in such cases, would mean, that a man was tried again for an offence of which the jury had specifically found him not guilty. Hitherto it has been a fundamental principle of our law that the plea of autrefois acquit is an absolute bar to any further proceedings against that individual for the offence of which he has been acquitted. If we are to encroach upon that old principle by a new provision of this kind, I think we shall have to do it with the very greatest care.

Moreover there is another objection to this new Clause to which I now feel bound to draw the attention of the House. Can the retrial in circumstances of this kind ever really be a fair trial? A man has been convicted already and that conviction has been published in the newspapers. If he had previous convictions, 1108 these have been announced in court and probably published in the newspapers. The judge, perhaps, before sentencing the man has made scathing comments upon his offence and upon his past career. Very likely the Sunday newspapers, unless they are more deterred in future than they have been in the past—and of course their legal position would be altered by the adoption of this provision in our law—by the fear of proceedings for contempt, of court, would have taken the opportunity of publishing lurid details about his private life and other alleged offences that he had committed. Then, on top of all that, the case would have gone to the Court of Criminal Appeal, which would have decided that in spite of technical grounds for allowing the appeal—there may have been a technical misdirection or possible admission of evidence not strictly admissible—the case was so serious against the appellant that he should be put on trial again. In face of these facts, with that knowledge present in the minds of the second jury which would re-try the case, it would not be easy for a second jury to take a retrial with completely open minds and to banish all sense of prejudice from them.

Again, on the Clause as drafted, how often is a new trial to be ordered? Suppose that after a second trial there is a further appeal to the Court of Criminal Appeal, and it is again found that there is a misdirection or a wrong admission of evidence. Is the wretched appellant to be submitted once more to a further trial for an offence for which he has perhaps been acquitted twice by a jury? What provision is to be made with regard to costs? These are difficulties which I am bound to point out to the House because I view this proposal with a great deal of misgiving.

On the other hand, the Government cannot close their minds to the fact that the judges of the Court of Criminal Appeal have repeatedly sought some such power as this as being necessary for the proper administration of justice. We must accept the view that occasionally—very occasionally, and subject to great safeguards—there may be some cases in which it is desirable that there shall be a, new trial. We must feel assured, as indeed we would expect, that if this new power is given, judges will exercise it with the greatest discretion, most sparingly, and in only quite exceptional cases.

1109 We are therefore not prepared to accept the Clauses in the terms drafted on the Order Paper, but to accept the principle. We are prepared to accept the principle subject to safeguards as to new trials for the same charge, as to the possibility of more than one trial being ordered in respect of the same matter, in respect of costs, and so forth. If, in the light of what I have said, the hon. Member for Oxford is prepared to withdraw the new Clause now, we will undertake to give consideration to the matter and the principle involved, and to introduce Clauses into the Bill when it is considered in another place.