HC Deb 17 February 1955 vol 537 cc633-7
Mr. Hector Hughes

I beg to move, in page 55, line 16, at the end, to insert: (h) requiring the accused to give notice prior to trial of his intention to raise any special defence, such as insanity, alibi or self defence. This Amendment speaks for itself and I can move it very briefly. As I generally appear for the defence in criminal trials and also in courts-martial, it may seem a little surprising that I should put forward an Amendment which would assist the prosecution, but I do think that it would assist the course of justice. It will prevent the prosecution from being taken by surprise.

The Clause provides that the Secretary of State can make rules. That is permissive, not mandatory. It sets out a number of things upon which he may make rules.

The Temporary Chairman (Major Anstruther-Gray)

If I may interrupt the hon. and learned Member, perhaps it would be for the convenience of the Committee if we also take the next two Amendments standing in his name.

Mr. Hughes

The same kind of considerations apply to all three. If the Government are willing to accept my Amendments, I am quite agreeable to proposing them all together. If not, I must say a word about this Amendment and about each of the other two, but I do not want to bring about the defeat of the Government through anything done on their part. If that is to happen, I want it to be done by design—and by my design.

This Amendment, as is obvious, would add a matter on which the Secretary of State may make rules. It would facilitate the course of justice and prevent the prosecution being taken by surprise by requiring the accused to give notice of any special defence he might wish to put forward. It would prevent confusion, and enable the prosecution to have the appropriate witnesses available. In the case of insanity, it would be necessary for the prosecution as well as for the defence to have expert witnesses such as psychiatrists and doctors. If the defendant wished to put forward an alibi, the issue would be "who were you with last night, out in the pale moonlight?" and it would be necessary for the prosecution to adduce evidence to rebut the alibi. In the case of self-defence, it would be necessary to have people who were present at the row in which the self-defence took place. This Amendment seems to speak for itself.

The next Amendment dispenses, … with opening speeches by the prosecution and defence. The object of eliminating those speeches is to enable the issues of the case to be determined on the evidence rather than on opening speeches. I say no more about that.

7.15 p.m.

The third Amendment provides for: (h) permitting the defence to make the closing speech whether or not witnesses (other than the accused) are called for the defence.

My submission is that the accused or his counsel should have the last word. That last word should not be with the prosecution. The order of events would then be that the evidence would be adduced, a summing-up speech would be made by the prosecution and a final closing speech by counsel for the defence. This, unlike the first Amendment, is in favour of the accused, but I do not balance them like that. I put forward the Amendments as three improvements to the Bill.

Clause 103 provides that the Secretary of State may make rules upon a variety of topics running from (a) to (m). The three elements which I seek to include are similar in character to those others. It seems to me that there are gaps in the series of things concerning which the Secretary of State may make rules, and three of the gaps will be filled if the Amendments are accepted.

Mr. Elwyn Jones

I rise to oppose this Amendment. I am, indeed, amazed that my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) should have moved it at all. The fact that it is in defiance of the tradition of our criminal law may not, perhaps, be an impressive argument to call in aid from this side of the Committee, but the Amendment is calculated, or might indeed have the effect if passed into law, seriously to prejudice the defence. It is introduced, apparently, by my hon. and learned Friend so as to ensure that the prosecution is not taken by surprise. He has told the Committee that he appears on many occasions, as I am sure he does, for the defence. That being so, I am astonished that he should make his own task so much the more difficult in the multitudinous cases in which, we are all sure, he will be appearing in the near future. He would, indeed, curse himself if the Committee permitted him to act according to his own folly.

My hon. and learned Friend said that he has introduced his second Amendment to ensure that the trial of the case will be conducted upon the basis of the evidence and will not be determined by the quality of speeches. Perhaps I ought to speak modestly about the rô1e of counsel in these matters but, by and large, an opening speech by the prosecuting counsel is of some assistance to the court. I will not seek to put it higher than that. It may be that there are some prosecuting counsel who throw more confusion than light upon the proceedings, and I do not exclude that possibility. It may well be that there are some defending counsel who may have the same unhappy effect upon the proceedings.

Mr. Hector Hughes

No.

Mr. Elwyn Jones

I am not by implication referring to my hon. and learned Friend in saying that. Generally speaking, it is helpful to a court-martial to have a picture of the case before the case ever begins, and indeed from the point of view of the defence, it is imperative that the prosecution should be well and truly tied down at the beginning of the case in the opening by the prosecution and should not be allowed to wander at large into fresh fields and pastures new.

Therefore, there is abundant reason for rejecting this Amendment, and I am indeed surprised that so experienced a defending counsel as my hon. and learned Friend should have been so misguided as to give it publicity upon the Amendment paper.

Mr. Hughes

Does my hon. and learned Friend not realise that in presenting my argument I regard myself not as an advocate on one side or the other but as an officer of justice seeking to set up the best possible system by which soldiers can be tried?

Mr. Elwyn Jones

I appreciate that the object of my hon. and learned Friend is purely public-spirited and that he is entirely concerned with the administration of justice.

Mr. Hughes

I am obliged to my hon. and learned Friend.

Mr. Elwyn Jones

But having said that, I am astonished that he should propose a course which would have the exact opposite to the effect which he has in mind and which would pervert the course of justice by gravely imperilling the rights of the accused.

In the last Amendment my hon. and learned Friend has sought to be on the side of the angels, if making the task of the defence easier may properly be so described. I see no reason why, in the Rules of Procedure applicable to courts-martial, we should depart from the ordinary rules applicable to criminal proceedings. Therefore, I also oppose my hon. and learned Friend's third Amendment.

The Lord Advocate

We from north of the Border are naturally gratified that some of our procedure should be suggested here, and I am obliged to the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes) for drawing attention to it. While I agree with the general attitude of the hon. and learned Member for West Ham, South (Mr. Elwyn Jones), I cannot agree with his strictures on the proceedings which it is sought to introduce.

However, I invite the Committee to reject the Amendment, in the first place because it is unnecessary. It is open to my right hon. and learned Friend when the Rules of Procedure are drawn up to make the very provisions which are suggested here. Subsection (2) of the Clause says: Without prejudice to the generality of the last foregoing subsection. Rules of Procedure may make provision with respect to"— certain things. Paragraph (f) is: the procedure to be observed in trials by court-martial. It is competent for my right hon. and learned Friend, in drawing up the Rules of Procedure, to introduce rules to cover the matters to which the hon. and learned Gentleman has referred. It would be a pity if we were to depart from the present well recognised code which is followed satisfactorily in the conduct of courts-martial.

Mr. Hector Hughes

This not being the Lord Advocate's maiden speech—he made it some little time ago—I make bold to interrupt him. If he is going to construe (m) in the wide way that he has indicated, why include paragraphs (a) to (l)? Surely it would be sufficient to couch subsection (2) in this way: Without prejudice to the generality of the last foregoing subsection, Rules of Procedure may make provision with respect; to all or any of the following matters and then: any matter which by this Part of this Act is required or authorised to be prescribed. The intervening paragraphs are unnecessary on that construction.

The Lord Advocate

It may well be that this Clause could have been framed in a different way, but what I am clear about is that under paragraph (f) these suggestions of the hon. and learned Gentleman could be incorporated in the Rules of Procedure. There is a good deal to be said for and against each of them. I am far from saying that their mere introduction as a group or even individually would necessarily improve the procedure in any particular form.

Amendment negatived.

Clause ordered to stand part of the Bill.