HC Deb 15 July 1948 vol 453 cc1593-616

Lords Amendment: In page 36, line 6, leave out from "aforesaid" to "has" in line 8.

1.15 a.m.

Mr. Younger

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This Amendment and the tour which follow in lines 12, 16, 29 and 42 are drafting Amendments. They make it a provision that it shall not be necessary in cases coming under paragraphs (b), (c) or (d), where the appellant has successfully appealed to the High Court, for the appellant to appear again before a court of quarter session or a court of summary jurisdiction, as the case may be.

Lords Amendment: In page 37, line 46, to insert new Clause "G" (Power of Court of Criminal Appeal to order new trials). (1) Notwithstanding anything in section four of the Criminal Appeal Act, 1907, where an appeal against conviction is allowed by the Court of Criminal Appeal under that Act and it appears to the court that the interests of justice so require, the court may, instead of directing the entry of a judgment and verdict of acquittal, direct the appellant to be re-tried upon the whole or any part of the indictment: Provided that—

  1. (a) where the appellant was acquitted on any part of the indictment, the court shall not direct him to be re-tried on that part; and
  2. (b) if the appellant, being convicted on the re-trial, again appeals against his conviction under the said Act, the court shall not direct him to be re-tried a second time
(2) An appellant who is directed to be retried under this section shall be re-tried before such court as the Court of Criminal Appeal may direct; and where by virtue of any such direction an appellant is to be re-tried before a court of assize or quarter sessions before which he could not have been tried but for the direction, that court shall have jurisdiction for all purposes connected with the re-trial as if the offence had been committed within the jurisdiction of the court. (3) Where the Court of Criminal Appeal direct an appellant to be re-tried under this section, the court may make such orders as appear to the court to be necessary or expedient for the purposes of the re-trial, including orders—
  1. (a) for the amendment of the indictment upon which the appellant is to be re-tried;
  2. (b) for the custody or admission to bail of the appellant, and for the attendance of witnesses and other persons at the re-trial.
(4) Where an appellant is re-tried by virtue of a direction under this section before any court of assize or quarter sessions before which he could not have been tried but for the direction, any costs payable in the case under the Costs in Criminal Cases Act, 1908, shall in the first instance be paid in the same manner as if the offence had been committed in the county or county borough in which he is tried, but shall be recoverable from the treasurer of the county or county borough in which the offence was or was supposed to have been committed. (5) In relation to an appellant who was tried separately on any count or counts of an indictment, the provisions of this section shall have effect as if those counts had been found in a separate indictment.

The Attorney-General

I beg to move, "That this House doth disagree with the Lords in the said Amendment."

I rather wish that I could content myself with holding the ring in this matter and allowing my hon. and learned Friends on each side of the House to fight out the matter between them, but it is, of course, right and proper that the Government should indicate a view in the matter. Although there is no Departmental interest at all involved, we have after very careful consideration with my noble Friend, come to the conclusion that we ought now to advise the House not to agree with this Amendment. This is a matter which was raised on the Report stage in this House, and I then gave the Government's view. I apologised to the House for reading what I said, but it is right that we should make our position in the matter perfectly clear. I do not propose to read out all I said but just the appropriate sentences. This is what I said: 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. 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 cannot 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. I then set out in some detail the number of disadvantages which I thought were attached to this proposal to enable the Court of Criminal Appeal to order a new trial. I finally said this: 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. 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."—[OFFICIAL REPORT: 14th April, 1948: Vol. 449, c. 1106/8/9.] At that time we thought there was a consensus of legal opinion in favour of the proposal, and that it might be possible to find words—we thought those put on the Order Paper on Report here were unacceptable—which might provide adequate safeguards against the manifest dangers and disadvantages which attach to this proposal that the Court of Criminal Appeal, in criminal cases, should be able to order a man who has already been tried to be put on trial again.

In that understanding my noble Friend in another place introduced the Clause which appears on the Paper. He made it abundantly clear that no Departmental or Government interest was involved in the matter, and still less any party interest, but that the Clause had been put down because some judges of the Court of Criminal Appeal had from time to time indicated that it would be useful to that Court to have the power, in certain cases, to order a new trial. The Clause was eventually carried on a free vote, but not without a very strong conflict of high judicial opinion.

In the meantime it became more and more apparent that it really was rather difficult to devise a Clause which did contain adequate and effective safeguards against what I have called the manifest dangers of this new departure in our practice, and which would at the same time leave the power to order a new trial usefully available in any but the rarest and most improbable cases. On the other hand, it really is not proper, as it seems to us, to legislate for particular and highly unusual cases which perhaps are only likely to occur, if I may use a colloquial phrase, once or twice in a blue moon. It is particularly undesirable when the legislation itself, as in this Clause, is of a highly controversial nature.

Why is it controversial? Mainly I think because it does offend against the fundamental principle to which we have hitherto strongly adhered in matters of this kind, that no man might to be put on trial twice. Under the existing powers which the Court of Criminal Appeal possesses, if it is satisfied that, despite some irregularity which may have occurred in the proceedings in the court of first instance, no miscarriage of justice has taken place and any reasonable jury would have convicted, then the Court of Criminal Appeal, despite the irregularity, is entitled to confirm the conviction. If, on the other hand, the Court of Criminal Appeal concludes that if there had not been any irregularities no reasonable jury would have convicted, then it is its manifest duty to allow the appeal and to set the appellant free.

The intermediate case is that in which the Court of Criminal Appeal is satisfied that there has been some irregularity, that that irregularity is so serious that the conviction cannot be allowed to stand, and it does not know whether or not a reasonable jury trying the case, without irregularity, would have convicted or not. It is in that kind of case that under this Clause the Court of Criminal Appeal would be able to order a new trial. But I must say that for myself, as, indeed, I said in the plainest terms on the Report stage when we discussed the matter, I find it very difficult to think that a second trial in such circumstances could ever really be an entirely fair trial.

The jury in the second case would almost inevitably know that the person whom they were trying had been previously convicted by another jury, that he had appealed to the Court of Criminal Appeal, and that his appeal had not been successful in procuring his acquittal but had resulted simply in the Court of Criminal Appeal deciding that he ought to be put on his trial again. It is difficult to think that in such circumstances a person ordered to undergo a second trial would not start out at a very heavy disadvantage indeed. In well conducted cases—and, of course, in our courts all cases are well conducted—circumstances are not likely ever to occur in which it should be necessary for the Court of Criminal Appeal to order that a fresh trial should be had. If very occasionally, from time to time, such cases do take place I cannot myself think that any very great harm is done—any outrage to our sense of justice—by allowing a possibly, but not certainly, guilty man to go free.

It now turns out that, so far from there being a consensus of legal opinion in favour of this new Clause, there is, in fact, very strong legal opinion against it. Many distinguished lawyers in another place and many distinguished lawyers in this House are apparently wholly opposed to any change in the law in regard to this matter. I have consulted my noble Friend in regard to the matter, and he has felt that if in this House, as in another place, there is a strong conflict of view, we ought not to press for a change in the law which, after all, has been operating now for a considerable time, and in the administration of which, as at present constituted, the public have complete confidence—confidence that might be shaken by making any change in this direction now.

The acceptance by the Government of the principle underlying this proposal was from the first made conditional upon our being able to find a practicable form of words which would embody adequate safeguards, and, of course, on there being a consensus of legal opinion in support of the matter. My noble Friend in another place—and as this was a pronouncement of Government policy I believe I am entitled to quote it—said: They are perfectly prepared to leave it to the collective wisdom of your Lordships" House to decide. It is in no sense a Departmental matter, still less a party one. Of course, we have given the very greatest and gravest consideration to the views that have been expressed by the learned judges in another place and indeed in the course of trials in the Court of Criminal Appeal. Whilst we have the greatest respect for the judges who have expressed those views, we cannot possibly disregard the fact that other judges and other distinguished lawyers have taken diametrically opposite views. In the absence of any agreement about the matter, we do not feel it would be right to ask the House to alter the existing law.

1.30 a.m.

Mr. Gage (Belfast, South)

I have no hesitation whatever in supporting the right hon. and learned Gentleman the Attorney-General in this matter. I do so in spite of that fact that it might involve my voting with the Government for the second time tonight, but that does not trouble me nearly so much as the fact that a number of eminent legal authorities, with far more experience in this matter than I have, take the view that the Court of Criminal Appeal should have this power. I think it is right that should be said, because I have a great respect for those authorities and indeed the Court of Criminal Appeal has itself a number of judges who have constantly said it should have this power. Therefore, I think it is right one should give fairly precisely reasons for disagreement.

First and foremost, I believe that this Amendment infringes the fundamental principle of our criminal law—namely, that it is Better that 20 guilty men should escape the consequences of their crimes than that one innocent man should be convicted. That is something every lawyer learns in his early days. I believe this Amendment infringes that most important principle. It is important that the House should realise that the prosecution in a criminal case has no right of appeal. That is right. There is no member of my profession who, at one time or another, in prosecuting in the criminal courts, has not had the experience that, after the accused man had been acquitted, it was found that that was due to a wrong decision, and felt he would like to appeal. But there is no right of appeal. The only cases in which there can be an appeal are those in which a person has been convicted. The second matter to remember is that the Court of Criminal Appeal at present has the power, even though there has been an irregularity in the trial, to uphold the conviction, provided they consider that no substantial injustice has been done. It is in these circumstances that we are asked to give them this additional power of sending cases back for retrial.

We have to consider what this is going to mean. I do not believe that anyone who has heard a jury pronounce their verdict of guilty has not been affected by it. Even in the most trifling offences, it is difficult to hear it with complete equanimity and composure. One can imagine the feelings of the unfortunate person on whom the verdict is pronounced. At least he can feel now that that part of it is all over. There is no chance of his being tried and having to go through that dreadful ordeal again. I think that is most important. It is wrong that an unfortunate man should have to go through that ordeal for a second time because the prosecution has made a mistake, as they often do, or the judge misdirects the jury.

Secondly, there is the question of expense. That is a most important point to consider. I know that it has been said, in another place, that there are provisions for poor persons' defence; but after all, most people who are tried on a serious charge are not content with that. They mortgage what little savings they have, probably everything they have, in order to have themselves properly defended. It seems to me wrong that they should be submitted to that tremendous expenditure a second time.

Finally, there is the important question of prejudice. The House will know that a man's convictions are read out if he has been convicted, and it will realise that witnesses are bound to talk afterwards, and that the mistakes which may have been made by prosecution witnesses are likely to be remedied the next time. It seems to me, therefore, entirely wrong that a man should be sent back.

Another very important point is that, as it now stands, this Amendment will not achieve its original object. The House will remember that all the arguments were based on the fact that two members of the Metropolitan Police were found guilty of conspiracy to steal, and not guilty of stealing. Almost all those who supported this particular Amendment pointed to that case, and said that it was the type of case which they desired to remedy because the verdict was repugnant. The Amendment in its present form will not remedy that, because the court cannot send back for trial a case in which there has been a verdict of not guilty. That, I think, is a very important point.

It is only if the court can send back a finding of not guilty that this Amendment achieves its object. In those circumstances, I have no hesitation in saying that I hope the House will disagree with the Lords in this Amendment. I have heard it said that this will be used sparingly. These words are always used when some infringement of our liberties is introduced. I do not think it is at all a satisfactory method of introducing this matter which, in my view, infringes the most fundamental principles of our criminal law. I do not say this out of any sentimental affection for the convicted person, but out of regard for our criminal law, which I am sure rests largely, if not entirely, upon the principle which I stated when I started my speech.

Mr. Manningham-Buller

I am afraid I find myself, on this issue, in disagreement with the hon. Member for South Belfast (Mr. Gage). I think there is, among lawyer-Members on both sides of the House, as well as lawyers outside the House, considerable disagreement upon this issue. I can understand why the Attorney-General wished to content himself with holding the ring, because his speech tonight indicated clearly a departure from acceptance of the principle to which he referred in the speech he delivered on the Report stage, and from which he has already quoted. And it is a departure, I venture to suggest, without any adequate explanation of the reasons which have led him to that conclusion. After all, it was known then what were the views of the Court of Criminal Appeal. It was known then what the objections were to giving this right of re-trial, because the learned Attorney-General referred to them.

The Attorney-General

Perhaps the hon. and learned Member will allow me to say that it was not known, then, that any of His Majesty's judges were opposed to the proposal. I had my own views about it, and I thought it right to express them to the House. But I did not know, at that time, that those views would command support in other legal quarters. I thought that it was not right to insist on the correctness of my own views in the face of the demands made by the judges of the Court of Criminal Appeal for this new Clause.

Mr. Manningham-Buller

I would point out that while the Government have honoured their undertaking to introduce a Clause into the Bill when it was considered in another place to give a right of re-trial, they have, after honouring their undertaking in that respect, now sought to omit Clauses put into the Bill by the Government. In dealing with the speech of my hon. Friend behind me, I have to say that a great many of the objections made are objections which would weigh heavily on any Court of Criminal Appeal before the ordering of a new trial. As to whether the court should have such power, I for one say that if we were considering the Clause as originally introduced into another place, I would unhesitatingly vote against it because I would never agree that any man could again be put on his trial in respect of a charge of which he had been acquitted. I would never support the view that a man could be put on trial again because of something which the prosecution had done or had failed to do. The conduct of the prosecution must surely rest where it is.

Mr. S. Silverman

As I understand it, what the hon. and learned Gentleman is saying is that a case is made out for a limited power; but this is not a limited power. Where it appears to the court that the interests of justice so require it, a new trial may be ordered. What could be more fair than that?

Mr. Manningham-Buller

I may have been misled because of the words of the Lord Chancellor in another place. I may not, of course, quote what was said, but my impression, based on what I have read, was that there would, in practice, only be a right of re-trial where an error had been made by a judge or chairman of Quarter Sessions in his summing-up. I base that observation on what I have read, and if that is the right interpretation, then I, personally, am in favour of this Clause. I believe that there must be very great difficulty in the Court of Criminal Appeal in reading the long record of offences, in determining cases in which there has been a substantial miscarriage of justice. Due weight may have been given to the evidence; the weight which was attached to that evidence months or weeks before by a jury, and in certain cases a wrong conclusion will be drawn. It might be said by the court that the error made no difference, that there was consequently no substantial miscarriage of justice, when the error made a lot of difference in the minds of the jury, and vice versa. I feel that the right should be given to the Court of Criminal Appeal to order a retrial in these few unusual cases where there had been an error, not on the part of the prosecution but on the part of the court.

1.45 a.m.

The Court of Criminal Appeal has often said, from the very first year of its existence, that in order to do justice in certain cases, not often, but occasionally, the Court should have the power to order a new trial. I believe that if the court had that power justice could be done in those few cases. I do not personally feel that this would tell against the accused person. I can see the possibility that the accused person, against whom the evidence has been very black, who has been convicted, and who gets acquitted as a result of the decision of the Court of Criminal Appeal, on a technicality, might, in certain circumstances, prefer to take his chance again at the hands of the jury, and have their verdict on the facts. I assume from what has been said that we shall disagree with the Lords upon this Amendment, and I express my regret that it has not been accepted that the Court of Criminal Appeal should have this power.

Mr. Paget

I always listen with very great respect to what is said by the hon. Member for South Belfast (Mr. Gage), but on this occasion I must admit that I cannot see that any question of principle is involved here. I cannot see that the question of a second trial involves any principle in our law. After all, when juries disagree there is a second trial. The important thing is whether we are providing machinery which would give a satisfactory second trial. When juries disagree the evidence of a man's character, his previous convictions, are not given in evidence. Here, when the man has been convicted in unsatisfactory circumstances the evidence of his previous convictions is published and known publicly. That seems to me to militate against the fairness of a second trial.

The next point is this: A man may have exhausted his financial resources in defending himself. Surely it is utterly unfair, if, because of a mistake which was not his mistake, he is involved in that new expense. I would not be opposed to the principle of ordering a retrial provided, first, that the State provided the whole costs of that second trial. I think that is the first essential. Second, I think that the trial should take place in quite a different district from the first so that the jury should not be prejudiced by the evidence, particularly the convictions which might have been given in the previous trial.

Third—and it is vitally important—there cannot be a satisfactory second trial if the issues upon which a man has been acquitted are not re-opened. We all know that in framing indictments there are alternative powers. A man may be charged with stealing or with receiving. He may be convicted for receiving when the evidence is to the contrary. That man's re-trial might be ordered, but it would be quite a futile re-trial when the other issue was not open to the jury. I would say, of this Amendment, that the provisions made for re-trial are highly unsatisfactory and that upon these grounds we should reject it.

Mr. Hogg

This is a difficult hour at which to address the House on what is admittedly a technical subject, and one upon which far greater experts than I are profoundly in difference with one another. But I have this claim to address the House—I am the putative father of this Clause. I did propose the original Clause on the Report stage, which the Attorney-General accepted in principle and which led to the present Clause being introduced in another place. It is on this account that I feel I ought not to abandon my stepchild quite so readily as the Attorney-General has done, he being the mother of the infant. I think he has jettisoned the baby too soon, and I must say that although I regret the difference between distinguished lawyers of various political parties, I am not particularly daunted by it. They always differ, in my experience, on most subjects and one must in the end use one's professional experience, even if it is only small and humble, to the best of one's ability in an effort to achieve what is right.

I differ from my hon. Friend the Member for South Belfast (Mr. Gage), and I differ fundamentally from those who take the opposite line. I think all English people—if I may say so, as a Celt—rather tend to regard criminal justice as something rather like fox-hunting—an elaborate ritual to be followed with highly technical rules in which, whatever is done, the fox must not be shot but may be torn to pieces by hounds.

Mr. Pritt

Is not the difference that there is a pretence that the fox enjoys it?

Mr. Hogg

It is described as the kind of sport which must be played according to the rules. One recognised rule is let the best man win, and let the Devil take the hindmost. Being a rather emotional Celt, I do not take that view about criminal justice. I think its prime object is to convict the guilty and acquit the innocent and I am prepared to agree that where there is a danger of a mistake taking place, it is better that a guilty man should escape than that an innocent man should be convicted. I am concerned that it has always been a fundamental principle of our criminal law that 20 guilty people should be acquitted, rather than that one innocent person should be convicted.

I think we must apply the rules of common sense to criminal justice, and not those of an elaborate mathematical sort. The real question at issue is whether the Court of Criminal Appeal should, in any circumstances, have the right to order a re-trial, rather than to direct a verdict of not guilty in the event of an appeal succeeding. It is important to add those last words—"in the event of an appeal succeeding." Most of us would be content to say, for reasons which have been given from all sides, that in the ordinary case, where an appeal succeeds, the correct result would be for a verdict of acquittal to be entered straight away. That is the ordinary case. But the contention has been made—it is a contention with which I, personally, agree—that there is a minority of cases where justice is not done simply by entering a verdict of acquittal. The examples have been given.

I only want to put one or two considerations why I find them conclusive. I pay great attention, in spite of Lord Simon, Lord du Parcq and the right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe), to the repeated asseverations of the Court of Criminal Appeal itself. I do not believe that hon. and learned Gentlemen in this and in another place are entirely right in supposing that this is a provision which applies against the fox which is being hunted according to the English rules.

Now I will say something which I hope will not cause offence, or be thought disrespectful. I have from time to time—not very often, because it is not really my line of country—appeared before the Court of Criminal Appeal. It is not a tribunal before which I like appearing very much. There is a nasty atmosphere about that court. [Laughter.] I was afraid that hon. Gentlemen would laugh, but I mean that seriously. It has an atmosphere of repressed misery, of bad temper—bad temper between bench and Bar—or even bad feeling, harsh judgment and all kind of things. I am not criticising the court in any way. I am going to say what I think about it, and what I have found about it.

My belief is that the reason for that unpleasant atmosphere in that court is very largely that that court has not got power in a suitable case, to order a re-trial. That is my belief: I may be wrong, but that is the view which I have formed about it. I think it is the case that if it had power to order a re-trial in a suitable case it would listen more sympathetically to appeals than it does, knowing that the matter could be investigated again. One of the reasons why it is so very difficult in present circumstances to get a criminal appeal on its feet is the feeling of the court itself that it must not allow appeals because if it does so, many guilty people will get off. I sincerely believe, as a result of my experience, that if it had the right in a suitable case to direct new trials it would listen far more sympathetically to appeals than it does now. I may be wrong about that, but it is my view, and it has been my view for a number of years.

May I also direct the attention of the House to another factor in which I think they would be wrong in supposing that the power to order a new trial necessarily tells against the fox in this English blood sport? Take, for instance, the case which happened not very long ago where a murder was committed and, after the conviction, somebody else confessed to the same murder. Let me remind the House of what actually happened. I agree that, as matters stood in that case, no great injustice was done, because the confession happened to be bogus; but sooner or later we will get a case where a conviction of this kind takes place and the confession is genuine. That will happen sooner or later, because sooner or later everything happens and sometimes it happens rather sooner than later.

Mr. Paget

It might even happen after execution.

Mr. Hogg

We are not talking about that now. We have come to a conclusion about that, and I certainly do not want to reopen the matter. This topic is difficult enough by itself without re-opening other questions which we have already discussed.

Let us consider what happened on that occasion, and why it happened. It so happened that I was sitting in the court when the case came on, because I had other business to transact afterwards. The court decided that in spite of the other confession it could not listen to any fresh evidence at all—in other words, that conviction, which was being impugned by the appellant, must stand so far as that court was concerned. It said, "If we listened to the other confession the whole matter would have to be reopened and tried again. We are not constituted in such a way that we can hear the evidence and, under the law as it stands, we cannot direct anybody else to listen to it."

2.0 a.m.

Mr. Hale


Mr. Hogg

I ought to conclude what I was saying, and I will try to anticipate the hon. Member's interruption. The next stage in this rather unhappy story was that, faced with this confession, and with the obviously unsatisfactory situation which the decision of the Court of Criminal Appeal gave rise to, the Home Secretary said, "I will institute an inquiry of my own. A most unsatisfactory situation has arisen." The inquiry which the Home Secretary instituted was the best thing he could do, but an administrative inquiry, held under the auspices of the Executive, is not the proper way to find out the truth in criminal proceedings. I have no doubt that the inquiry was very properly held by a distinguished lawyer, the facts properly gone into, and, in this case, a perfectly correct decision was arrived at. If, in fact, the power had existed in the Court of Criminal Appeal to order a new trial a very much more satisfactory situation would have obtained, both from the point of view of the public and the prisoner.

Mr. Hale

My recollection of the case differs slightly from that of the hon. Member. I recall that the Court of Criminal Appeal had power to hear fresh evidence, but declined to do so. They have the power to hear evidence, and they will hear it if it was not reasonably available to the man when the case was originally heard, but they will not hear evidence that was reasonably available at the original hearing. This new Clause would not give the Court of Criminal Appeal the power which the hon. Member suggests. They can order a new trial on the basis of the facts before them, but could not, under this new Clause, secure the evidence to enable them to consider whether a new trial would be worth while.

Mr. Hogg

The hon. Member is wrong on both points. The decision certainly was as I stated, because I heard it and I had to refer to it in another matter. The Court of Criminal Appeal have, under the statute, power, in certain circumstances, to hear fresh evidence, but they declined to do so in this instance on the grounds that I have stated. They have decided in similar cases not to hear fresh evidence, because—

The Attorney-General

I am loath to interrupt the hon. Gentleman, but I do not think that is what the court decided. I had to consider the matter with a view to the possibility of the case going to a higher court. If they decided that in any circumstances they would never hear fresh evidence, I should have had carefully to consider whether such a decision could possibly be upheld. I do not think that that was the effect of that decision.

Mr. Hogg

I cannot argue a point of law with the Attorney-General at this hour of night, nor would I seek to do so—it would be both foolish and wasteful. But I am convinced that that was the effect of the Court of Criminal Appeal's decision, to which I listened. What is certain is that whether or not it would be followed in a similar case, and I am certain it would be, it was the court's decision in that particular case.

Mr. S. Silverman

I think I can clear up the doubt here. Is it not the case that the Court of Criminal Appeal declined to hear the new evidence, not because that would involve them in retrying the case of the appellant, but because, in their opinion, that would involve them in trying a man who had never been charged at all? They said, "If we are to consider this confession, we can only do so on the basis that the confessor is the guilty person, and that we are not competent to do." That is what they said, whether they were right or wrong.

Mr. Hogg

I do not altogether agree with the hon. Member. Although they said what he says they said, they also said what I say they said. They gave two reasons for their decision, and one of them was the one I am talking about now. It was plain, on reading the judgment of Mr. Justice Humphreys in that case, that he was taking up the attitude that the Court of Criminal Appeal could not retry a whole murder case itself, and that the new evidence which was to be adduced would have involved a retrial of the whole case. The point I was seeking to make on that is this, that it would have been very much more satisfactory for the appellant, and for the public, if the result of these proceedings had been that the matter could have been sent back to the jury, instead of to an administrative tribunal, for public trial and for consideration according to the ordinary forms of law.

Mr. Julius Silverman (Birmingham, Erdington)

This Clause would make no difference.

Mr. Hogg

My own view is that it would. I do not think it worth while discussing the actual drafting of this Clause. What we are discussing, and what we must make up our minds about, is whether, in principle, there ought to be a limited power of retrial or not. My conclusion is that it is desirable to have a limited power of ordering a new trial. The alleged objections seem to be theoretical and academic, and even sentimental, rather than real.

It is alleged that there is a fundamental principle in our law that a man should never stand his trial twice. That is news to me. The hon. and learned Member for Northampton (Mr. Paget) has already pointed out that it is the commonest thing in the world for two, and sometimes three trials to be held—although three is less common, but I have known it happen where a jury has disagreed. The normal thing in the last case is for the Attorney-General to enter a nolle prosequi. But it does happen that three trials have been held, and to pretend that a new innovation is taking place if two trials are held on the same indictment is flying in the face of experience. To take the famous case of Oscar Wilde—

Mr. Speaker

Is the hon. Gentleman opposing or agreeing with the Amendment?

Mr. Hogg

I was trying to make it clear—and I thought I had, at any rate, to the majority of the House—that I was agreeing with the Lords, and regretting the decision of the Attorney-General. Perhaps you, Sir, have not heard the whole of my observations. I have been very much interrupted, and I have explained that I think it right to put on record what my views are.

In the Oscar Wilde case the jury disagreed on the first criminal trial. There had already been a criminal trial in the same direction. There was finally a trial which led to conviction. My own feeling has been that the point which is put against the Lords Amendment, to the effect that a second trial is in all circumstances to be avoided, is not good enough. It is then said that the appellant may have exhausted all his financial resources in the first trial. That would be a sound argument against the re-trial if it were a sound argument against this Clause. But it is not usually considered so. There are, as a matter of fact, means by which persons who have no financial resources can get adequate means of defence; if there were not, our system of justice would not be worth very much. I cannot think that that is a very good reason. Then it is said that a man's previous convictions are read out after conviction by a jury. I regret that I cannot find anything particularly persuasive in that, either. It is not always the case that a man has any previous convictions if he is convicted on indictment. It is not, perhaps, usually the case. I do not know, but there are a certain number of first offenders.

The fear that a previous conviction may influence the mind of a subsequent jury is already dealt with fully in the Clause by the fact that the court has power to order a re-trial in another place remote from that in which the original trial was held. Nor am I prepared to say that the Court of Criminal Appeal, in considering whether or not to exercise the discretion given them by this particular Amendment, would not take that particular objection into account as one of the matters which it was proper to consider.

For all these reasons I find the arguments against the Lords Amendment unconvincing. I am aware that in finding them so I differ from high legal authority; but I also agree with other high legal authority. This House is quite competent to come to a decision of its own, undeterred by the legal authority on the one side or the other. My conclusion—and it is one which I arrive at without doubt, though not without hesitation—is that, on balance, it would be advisable to give the court this power, and that that would not be to the disadvantage of the appellant or our liberties and traditions.

2.15 a.m.

Sir D. Maxwell Fyfe

I wish to urge, as shortly as possible, the reasons which make me agree with the thesis of the Attorney-General, and differ from my hon. Friends who have addressed the House. I disagree with them in the regret which they have expressed for being at the other end of the gun. I want to say only a few words to my hon. Friend the Member for Oxford (Mr. Hogg). During the time when he was not criticising the Court of Criminal Appeal I did feel a certain sense of relief that my geographical position in this House protected me when he was criticising something. He said there is no fundamental principle of our criminal law against somebody being tried twice. I think he will agree with me there is a fundamental principle of our criminal law against somebody being tried again after position that occurs in this case is that the man has been convicted and if my hon. Friend then says, "But that conviction was quashed by the Court of Criminal Appeal," I would answer: "The man stands acquitted and his trial has been brought to a conclusion." It is not then really relevant to the case which my hon. Friend quoted, where the trial had been abortive. That was the only matter on which my hon. Friend and the hon. and learned Member for Northampton (Mr. Paget) could rely. I suggest that that is not really a good analogy.

My hon. Friend took a further point. He said it might be that this position would help the accused person. I must say as a practical matter I find great difficulty in appreciating that. There are two cases usually quoted in favour. One is where there has been some irregularity which goes beyond what is excusable under the proviso of Section 4 of the Criminal Appeal Act. I have not the slightest sympathy with that case. If the prosecution have made an irregularity in bringing a criminal charge, it is a very sound thing that they should pay for it by the person being acquitted. Let us fix the highest standard for the prosecution and let them take the rub if they do not come up to that standard. The second case, which I think is the one more worthy of consideration, is when the accused person has failed for some good reason to call evidence at the trial, and indicates to the other court by the procedure open to him the nature of the evidence, its relevancy and importance.

As the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) and I know very well, the Court of Criminal Appeal would apply the test: Might this new evidence reasonably have affected the jury? If they apply that test and let him off, then again I think it is right. I do not know why the hon. Member for Oxford quarrels with the general proposition of my hon. Friend the Member for South Belfast (Mr. Gage). He may disagree with the hon. Member's quantification and say that 20 is putting the number a little too high, but I think he will agree with the general proposition that it is better that guilty people should occasionally get off than that any innocent person should be condemned. I cannot understand anyone who has, as he obviously has, the feeling for English jurisprudence in his bones quarrelling with that proposition.

There is just one other point on this and I hope that the House will bear with a little history, because the language in which it finished is most appropriate to our discussion. The history of this provision is that when the original Criminal Appeal Bill was introduced into the House of Commons, it contained a provision for a new trial. The House of Commons considered it very carefully in the Committee stage. After this lapse of time it is not uninteresting to note who were the people—again, from all parts of the House, just as tonight—who pressed that it should not have the right to grant a new trial. There was Sir Edward Carson, whose experience of the criminal law will, I think, be admitted by everyone; Mr. Akers Douglas, who had been Home Secretary before in the Conservative Government; Lord Robert Cecil, as he was then, practising at the Bar; and, I am told, though it was not quoted in the Report, Sir John Lawson Walton.

The House of Commons threw out the provision. It then went to the House of Lords, and in dealing with it Lord Loreburn, after referring to the history which I have mentioned and referring to some of the personages whom I have named, went on to say: I think there is a great deal to be said for the action of the Commons, because it approaches the confines of torture to put a man on trial twice for the same offence. I do not think that anyone in this House will contradict me when I say that it is not often that a Lord Chancellor in another place uses language as strong as that on a matter within his own purview. I know that at this hour of the morning I ought not to detain the House; but I could not give a silent vote on this matter. I know as well as anyone who has had experience, of the learned judges who take a different view. I differ from them with real diffidence. But on these matters I think it is essential for us to try to form a view, and one which belongs to the real foundation of English justice; which is not a matter, as my hon. Friend has light-heartedly suggested, of national sporting characteristics, but of the deep sense of freedom which so widely exists, that the advantage should be given to the prisoner and nothing done to prejudice him or put him into a position where anyone might say that unfairness must result from a second trial.

Mr. Hale

I am sorry to have to discuss a very important matter like this at this hour of the morning. I have remained in this House since 2 o'clock yesterday for the purpose of discussing this Clause and the important matters which arise upon it. This is a proposal for a fundamental alteration of the judicial system, and of the primary principles which have prevailed for centuries. I am definitely opposed to this proposal. I agree with a number of the things said by the hon. Member for Oxford (Mr. Hogg), particularly about the Court of Criminal Appeal I agree with his diagnosis, even if it does not appear to me that the Court is frustrated for the reason which he suggested.

This is a matter which concerns primarily the appellant. This House is too often apt to discuss our criminal jurisprudence as if it were an easy matter to draw a line, on the one side of which were the sheep, and on the other side the goats; to say that certain people were guilty and others were not, and so to differentiate between the two. It is well that we should acknowledge that we have a certain responsibility in this matter and that we should realise that, day by day, offences of the greatest possible complexity are being committed, and it is a most difficult task for the most skilled investigator to decide whether a man is guilty or not. The present law contemplates an appeal to the Court of Criminal Appeal by the defendant, and one knows that one opinion may differ very considerably from another on the issue.

I had to sit in the Court of Criminal Appeal a few weeks ago, and I think the facts are worth recording to the House; I can give them in a few seconds. The accused was a man of irreproachable character; he had served in the Army with an unblemished record, and he married. Within a week he found that his wife had both gonorrhoea and syphilis; he forgave her, and suggested that she should undergo treatment. This she did, but she soon returned to her old habits, and indulged in some form of rural prostitution. This man, her husband forgave her a second time, and tried to get her to mend her ways, but she was seen to leave a public house with a soldier and to go down some dark lane, after which she was seen to accept money.

The husband sought legal advice, but was told that gonorrhoea and syphilis contracted before marriage did not constitute grounds for divorce. The husband reasoned with her, and a third time he forgave her, but she was again seen to receive money. It was then that he struck her—the one occasion on which he did so. He had in his pocket a clasp knife, and he struck the unfortunate woman with it causing what could be classed as "a dangerous wound." In this case, the woman recovered after two or three weeks, and was, in fact, never in any danger. But, of course, it was ruled to be a wound with intent to endanger life. I do not know what hon. Members would have thought adequate punishment for this tragic affair. I should have given the man one day's imprisonment, or bound him over. He was given five years' sentence, and he is now serving it. The Court of Criminal Appeal listened to the case with considerable attention—more than it gave to some other cases, but the Lord Chief Justice and other judges gave a decision, and that unfortunate man is now serving his five years' sentence.

There is a wide disparity of views, and the same thing applies in the case of a conviction and sentence where there may be an increase of sentence. Under the old practice in the Court of Appeal, before a sentence was increased upon appeal, a warning was always given to counsel for the appellant or to the appellant himself that there was the danger of an increase in sentence. That is now withdrawn and some harsh sentences—some really savage increases—have been made without any warning to the accused.

There is another aspect to which I would refer briefly. There are no shorthand writers available today; there is a great shortage of shorthand writers and it is months after conviction before the evidence is available and if, as often occurs, there is a change of advisor, there are no means of ascertaining the facts at all. The practice of the courts is to date sentence from the hearing of the appeal although there is a lapse between the time of the sentence and the hearing of the appeal, but the period is so long that, nominally a period of six weeks is added to the sentence.

2.30 a.m.

I disagree with the hon. and learned Member that there are ample facilities for defence without money. There are people I admit who do give their aid generously, but I do not agree that there are ample or adequate facilities. We are always confronted with this position. Instead of having a right of appeal we are faced with a whole series of provisions, expenses, doubts and fears. Then there is the risk of having the sentence increased on appeal to the Court of Criminal Appeal, and, of course, the Court of Criminal Appeal can still say that although there were irregularities in the trial, there were mistakes in summing up, they have come to the conclusion that those do not constitute a fundamental matter, or ground for saying that there should have been a different verdict. Indeed, they have disregarded them quite frequently and quite properly.

We are now asked to add to this power, a power for the Court to say that there was an irregularity, that there was a fundamental error—because that is what it comes to in this Clause—but they feel that this chap might have been guilty after all, and he ought to be put to the expense of a new trial, which presumably would take place with the man still in custody.—[AN HON. MEMBER: "He can apply for bail."] The hon. Member knows that bail is virtually never granted between the period of sentence and appeal. I can think of only two cases in the past few years, and one was a case in which there were very special circumstances. I did take an exceptional case for advice to counsel but his advice was that it was quite hopeless to apply and was never granted without very special reasons put forward. If we are to add to the fear of an increased sentence, the fear and expense, and detention of a new trial we are virtually going to wipe out the right of appeal altogether. Already I think the Court of Criminal Appeal have too much power in this matter, and I ask the House to say by a substantial majority that they disagree with the Lords Amendment and refuse to dive this new power.