CLAUSE 32.—(Appeals from courts of summary jurisdiction to quarter sessions.) (Hansard, 15 July 1948)

§ The Attorney-General
I beg to move, as an Amendment to the Lords Amendment, at end, to add: (d) an order made in pursuance of any enactment under which the court has no discretion as to the making of the order or the terms thereof. This is a matter raised by the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) on Committee and Report stages and to which, when the matter was in another place, we were able to give further consideration. I think the Amendment which now appears will largely meet the point which the right hon. Gentleman had in mind. It will give a right of appeal against any order made on conviction by a court of summary jurisdiction. The Amendment to the Lords Amendment contains an exception in regard to an order made in pursuance of any enactment under which a court has no discretion as to the making of the order or the terms in which it is made. It is little more than a drafting Amendment, and unless the right hon. and learned Gentleman wants me to deal with it, I hardly think it is necessary to do so. Its purpose is obvious, as where there is no discretion, there obviously can be no appeal.

§ Sir David Maxwell Fyfe (Liverpool, West Derby)
I wonder if the House will allow me to intervene for a moment to express my gratitude to the Government for meeting this point which we raised on the Committee stage?

§ Mr. J. Foster
May I ask if this covers the unfortunate case where a man was obviously unjustly convicted of peering through opera glasses at girls undressing when in fact he was using a dictaphone? I agree it sounds funny, but it was a tragedy for this young man in the Public Trustee Office. This case came before the magistrate who, if I may say so with great respect, took the wrong view and bound the man over to keep the peace. He tried to appeal on the ground that he never had any opera glasses and was only using a dictaphone which these girls had 1591 mistaken for opera glasses, and they thought he was peering at them while they were undressing. He could not appeal, and, therefore the case went against him because it was thought that the magistrate was of the opinion he was looking at the girls through opera glasses. Whether this Amendment does cure that sort of thing I do not know.

§ The Attorney-General
The answer to that question is "no," because in cases like that where a man is bound over he has consented to be bound over, and having consented he cannot subsequently change his mind and appeal. The person in the case to which the hon. Member refers evidently thought that the simplest course would be to consent. It would be quite inappropriate for him to reopen the whole matter by taking it to appeal.

§ Mr. Hale
I think that explanation a little unsatisfactory. I say this with some seriousness. It is now seven minutes past one o'clock, and to carry on this discussion I am holding the 35 pages of Lords Amendments to the Bill in one hand and a copy of the Bill itself in another hand and the Order Paper in my third nonexistent hand. I am wondering whether it is wise to go on so quickly when some matters are being passed before discussion. As I understand Clause 32, it is intended to give the right of appeal to everyone convicted by a court of summary jurisdiction even if he pleaded guilty. There is a right of appeal against sentence after conviction and that appears to me to be an important Clause. If I read correctly the proposed insertion at the end of the Amendment, it limits it so that you cannot appeal against a probation order.
If a man consents to be bound over that really is a highly technical and grossly misleading representation of what takes place.
When a man is before the court and is told that the Bench has found the case proved, the next thing that happens is that a request is made to know whether he has any previous convictions and if the police inspector has omitted to bring a record or has not any, that fact is reported and then the Bench go back and say, "You are bound over." Then the clerk mutters to the man, who may be very glad to get away anyhow. He is given this choice and he either says, 1592 "Yes" and goes, or he is given a fair hearing.
I do feel that in many cases it is exceedingly important to have the right of appeal. If a person is found guilty and is conscious of innocence, he ought to have the right of appeal. There is, unfortunately, a growing practice, particularly in the metropolis, in my limited experience here, of magistrates taking the view that on the whole, a dismissal on payment of costs is a fair compromise between a doubt about the guilt or innocence of the accused, a desire to do justice to the diligence and vigilance of the police and a feeling that people who come into the courts, after all, should not go away thinking that it is the sort of place one can venture into with equanimity.
When the Bench is left with a feeling of doubt and a thought that the accused is probably innocent, the question of dismissal on payment of costs is frequently employed as a useful method of registering some measure of deprecation of some part of the conduct of the accused while, at the same time, not desiring to express to clear a conviction of the guilt of the accused. There are many cases where a man wants a right of appeal to restore his character, and he ought to have that right.

§ Mr. Pritt
I wish to support the hon. Member for Oldham (Mr. Hale) and to say emphatically how important it is that there should be a right of appeal for people who are bound over. The point I should like to put is that these people who are supposed to have consented to be bound over may not even have gone through the mental processes mentioned by the hon. Member for Oldham. Many of them are simple people. They are told that they are to be bound over and they accept that they are being bound over. They do not know that they are bargaining away the right of appeal which they ought to have.

§ The Attorney-General
I think that there is some misunderstanding here. A person put on probation or conditional discharge can, of course, appeal against his conviction. What he is not permitted to appeal against under this Clause is a probation order. If he agrees that he has been justly convicted and then agrees that he should be placed on probation it is not right that he should subsequently be allowed to reopen that matter. The 1593 very basis of a probation order is that the defendant has agreed to be bound over and placed on probation. Having consented and having agreed to be bound over—one has to assume that these things are properly done in the courts which have jurisdiction to administer this branch of the law—it really would be quite wrong to allow such a person to reopen the whole matter.

§ Mr. J. Foster
I think that it is wrong to say that under the Statute of 1362 one has to consent. The surety for good behaviour is the requirement which the magistrates can impose on people to keep the peace—

§ Mr. Pritt
I do not think that that can be relevant, because the whole of that statute concerns being bound over without being charged. That is very different.

§ Mr. Foster
It is a very great injustice if somebody who maintains that he has not committed an offence—has not intended to break the peace—is asked to give sureties and then finds that he cannot appeal.

§ Mr. Hale
A most interesting article was published in 1912 which established by photographs that the origin of that law is that a clerk writing in the reign of Queen Elizabeth missed a "not" out of the statute passed in the reign of Edward III.

§ Mr. Deputy-Speaker (Major Milner)
Quite a number of hon. Members have spoken more than once. This point is purely recondite, and I doubt very much whether it has relevance to the Amendment before the House. In my view, the matter to which the hon. Member is now referring has no relevance to the Amendment.