NEW CLAUSE.—(Appeals.) (Hansard, 15 April 1948)

§ Mr. Manningham-Buller
I beg to move, "That the Clause be read a Second time."
This new Clause raises the question which which I regard as of some importance. I hope that the right hon. and learned Gentleman will also agree that it is one of considerable importance in the practice of our courts, particularly after the discussion which we had last Friday. I am glad that the right hon. and learned Gentleman is able to be here this afternoon to give us the assistance of his views upon this matter. Under this new Clause, provision is made for an appeal from the Divisional Court of the High Court in any criminal case or matter. That right of appeal does not exist at the present time.
I think it is true to say that that court not only recently, but in the years gone by, has had to decide questions of the highest constitutional importance, and will have to do so in the years to come. During the war there was the question of whether those who live in Eire were liable to conscription. There was certainly the case of whether a Dutchman, resident in this country could, during war, be arrested and taken away and dealt with as a deserter from the Netherlands Forces. There was a recent case when the Divisional Court determined that a man who had been an officer was not subject to military law at the time of his conviction by a court martial—a case which the Lord Chief Justice of England said was of the highest constitutional importance.
In connection with those cases, no matter how important be the question, 1216 there is no right of appeal at the present time. From the Court of Criminal Appeal on a matter of important principle there is an appeal to the House of Lords with the consent of the right hon. and learned Gentleman, or the Solicitor-General. The result is that, in practice, we may have a decision of the Court of Criminal Appeal on a criminal matter, and a decision of the Divisional Court in a criminal case or matter, which disagree. If the decision of the Divisional Court comes after the decision of the Court of Criminal Appeal there is at the moment no machinery whereby the decision of the Divisional Court can be taken to a higher tribunal.
I hope that the right hon. and learned Gentleman will now agree that there is a great deal of force in the argument that there should be some right of appeal from the Divisional Court. If I have been able to carry him with me, with the pressure of events which have taken place, to that extent, the next question is, what right of appeal should be given? Before I deal with that question I think he will agree that the only way in which we have been able to challenge the decision of the Divisional Court in the past and the only way to do it under the law as it now stands, is by starting what may be a friendly civil action, or resisting a claim for damges for wrongful imprisonment or something of that sort, and taking that case right up to a superior court. It is a cumbrous, awkward piece of machinery to attempt to achieve a simple matter, and I hope that the right hon. and learned Gentleman will agree that there is a case for a right of appeal to a higher court—limited to cases of grave principle and high constitutional importance. I was wrong to use the word "right "—I should say in regard to cases where an appeal should be brought.
If provision is made for an appeal from the Divisional Court what conditions should be satisfied before that appeal can be brought? In this new Clause I have said that no appeal shall be brought without leave of the High Court or the Court of Appeal or the House of Lords. The Parliamentary Secretary, when we debated this in Committee, made some comments on the possible multiplicity of applications for leave to appeal. There is some force in his observations but I am not wedded to that part of this new Clause. It may be that the most satis- 1217 factory manner would be to provide machinery similar to that of appeals to the Court of Criminal Appeal, and then the Divisional Court and Court of Criminal Appeal would be in line, with an appeal to the House of Lords with the consent of the Law Officers. Whichever method is adopted, and whether or not the right hon. and learned Gentleman can accept this new Clause as it now stands, I hope that the discussion will, at least, elicit from him the admission that he now recognises the desirability of providing some machinery for appeal and the statement that he will make provision for that machinery, even if he cannot accept this new Clause, when the Bill is discussed in another place.

§ Lieut.-Colonel Sir Thomas Moore (Ayr Burghs)
I beg to second the Motion.

§ The Attorney-General
I must say at the outset, and emphasise my view, that the mere multiplication of appeals is not in the interests of justice. Finality and certainty are very important elements in the law. I have said before and say again that it is a very grave criticism of parts of our judicial machinery that finality is reached in some cases only after they have been taken through as many as four different stages or levels in the judicial hierarchy.
On the other hand, perhaps it is not generally a good thing that there should be no right of appeal at all. That is certainly the position in regard to some of the cases which come before the Divisional Court. The House will remember, in considering this matter, that in some cases the Divisional Court is itself an appellant court and in some cases it is a court of first instance. By far the greatest part of its work is concerned, I think, with appeals by way of cases stated by courts of summary jurisdiction; part of it is concerned with cases stated from courts of quarter sessions and these cases may themselves be appeals from courts of summary jurisdiction. And part, but quite a small proportion, of the court's work is concerned with cases in which the court is acting as a court of first instance, dealing with what are called the Crown paper cases, under prerogative writs.
Possibly under both of those different forms of jurisdiction, and certainly under the latter, cases sometimes come before 1218 the Divisional Court which are of great legal difficulty and of considerable public importance. I say at once that I have a great deal of sympathy with the view which was expressed by the hon. and learned Gentleman, that in those cases the possibility of appeal to some higher tribunal ought not entirely to be excluded. I do not say that because any of us have the slightest lack of confidence in the Divisional Court, which is very often, and indeed is usually, presided over by the Lord Chief Justice and commands universal respect. But the court sometimes deals with cases which are so important and so wide in their constitutional and public implications that it may seem desirable that the highest tribunal in the land should be able to deal with them, and—this I think is an important point—to do so in a way quite unfettered by the previous decisions of courts of subordinate jurisdiction. Only the highest tribunal in the land can deal with cases in that way.
The hon. and learned Gentleman has pointed out that the Divisional Court occupies a position which corresponds to and is of the same status as the Court of Criminal Appeal. The same reasons may exist as in the case of the Court of Criminal Appeal for providing for the possibility of appeals in exceptional cases. On the other hand, of course, the same reasons, and they are strong and indeed compelling reasons, exist for ensuring that, in the great majority of cases, the decisions of the Divisional Court should be final.
All that I think I can say on the matter now is that if the hon. and learned Gentleman is prepared to withdraw the proposed new Clause we will give the matter the fullest, and by no means an unsympathetic, consideration. I have not had an opportunity of consulting with my noble Friend, or with the other persons whom it would be proper to consult in a matter of this kind. I cannot therefore commit the Government finally to introducing a Clause on these lines in another place; but we will give most careful thought to it. The hon. and learned Gentleman will judge from what I have said that it will certainly not be unsympathetic consideration.

§ Mr. Manningham-Buller
Once again, and it is unusual for me to do so, I have to thank the Government for the way in which they have approached the problem 1219 with which the new Clause is intended to deal. I hope that the right hon. and learned Gentleman will succeed in his efforts to overcome the difficulties which he has indicated. I did not disagree with anything he said in regard to the limitations which it is right to place upon appeals from the Divisional Court or as to the position which the Divisional Court now occupies and should continue to occupy in our eyes and in the eyes of the public. I shall watch with interest to see what takes place on this point in another place and I hope that my observation of the report will lead to my learning that a provision of this kind is made in another place to deal with this point.

§ The Attorney-General
Before the hon. and learned Gentleman sits down I would like to say that I am not sure that I made quite clear what I had in mind. It was that I would consider with sympathy a provision for appeal in exactly the same circumstances as those which now exist in the Court of Criminal Appeal, that is to say, on the fiat of the Attorney-General, where an important point of law is raised and the matter is of public interest.

§ Mr. Manningham-Buller
Speaking for myself, I should be absolutely satisfied. As I rather indicated in moving the Clause, I thought there was something to be said for a right of appeal, subject to precisely the same conditions. I think the Attorney-General would agree that that form of limitation might be better than the one contained in the proposed new Clause. I therefore beg to ask leave to withdraw the Motion.