HC Deb 29 January 1957 vol 563 cc917-27

Where a prisoner with murder or capital murder is granted legal aid such aid shall include all necessary and proper provision for expert evidence dealing with all matters in dispute upon which scientific or other expert evidence may reasonably be necessary.—[Mr. Elwyn Jones.]

Brought up, and read the First time.

6.45 p.m.

Mr. Elwyn Jones (West Ham, South)

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

The position about the provision of expert evidence in legal aid cases is, in the view of my right hon. and hon. Friends, at present somewhat unsatisfactory. First, there appears to be no statutory provision for expert evidence and the matter is left very much to the discretion of clerks of assize. I confess that I myself have never failed, in any given murder case, to get the necessary expert evidence which I have thought it was in the interests of my client to obtain, but that is not a universal experience. Much depends on the willingness of the different clerks of assize in this matter. On this side of the Committee we feel that it should not be left in that uncertain and somewhat discretionary state.

I know that some of my professional colleagues, both counsel and solicitors, have had great difficulty in, for instance, obtaining the services of psychiatrists of standing in murder cases. First, there is the uncertainty as to whether they will be paid at all when their services are called in aid and, secondly, there is the doubt as to whether the payment will be other than derisory.

The legal position about the provision of legal aid at present—I am, of course, subject to correction by the Attorney-General upon this point—is that there are rules relating to the payment of fees to counsel and solicitors. I should add at once that the fees are of a most modest character, but at least they are provided for. Although the most severe critic of my profession, if he saw the scale, would not be able, if he was maintaining his reason, to contend that the fees were excessive, nevertheless there is provision laid down in the rules and it is better than nothing.

The terms of the law relating to defence of poor persons as laid down in the Poor Prisoners' Defence Act, 1930, are as follows: Any person committed for trial for an indictable offence shall be entitled to free legal aid in the preparation and conduct of his defence at the trial and to have solicitor and counsel assigned to him for that purpose in the prescribed manner… Thus, there appears to be no statutory requirement that in necessary cases expert evidence shall always be made available to the defence for the proper conduct of the defence. In practice, expert evidence is allowed. My experience is—I must be frank with the Committee in the matter—that I have not found in a single case any difficulty after a certain amount of pressure has been brought to bear.

However, as the experience of others has not been the same, and as there have been complaints in the Press and elsewhere about the unsatisfactory nature of the present machinery, we feel that the matter could be put beyond doubt by the inclusion in the Bill of the proposed new Clause which states, in precise and specific terms, that Where a prisoner charged with murder or capital murder is granted legal aid such aid shall include all necessary and proper provision for expert evidence dealing with all matters in dispute upon which scientific or other expert evidence may reasonably be necessary. That seems to us to be a just and reasonable provision, and I hope that the Attorney-General will be able to accept it.

Mr. Anthony Greenwood

I am grateful to my hon. and learned Friend the Member for West Ham, South (Mr. Elwyn Jones) for what he has told us, and particularly for the fact that he has had such a happy experience in matters of this kind. I rise only to supplement very briefly the much more experienced advice which he has been able to give us.

I should like to call attention to a number of facts which are given in Mr. Arthur Koestler's "Reflections on Hanging" Mr. Koestler calls attention to a letter from a solicitor, Mr. N. M. Jordan, which appeared in The Times of 9th November, 1955. Mr. Jordan described a case in which he had been involved, in which he had undertaken the defence of a destitute person who was subsequently found guilty of murder. Mr. Jordan said in his letter that counsel for the defence had been awarded fees of five guineas, and that the solicitors, for six appearances at the magistrate's court, had been paid three guineas, whereas leading counsel for the prosecution had been paid 75 guineas.

That letter prompted another letter from a solicitor, Mr. E. T. Williams, which appeared in The Times on 12th November, 1955. Mr. Williams wrote: I was instructed to act in the defence of a man charged with murder in South Wales earlier this year, and after three to four months' hard work on the case counsel and I were duly rewarded with fees little higher than those received by Mr. Jordan. Solicitors and counsel do know, however, that when they undertake work of this nature they can expect to be out of pocket at the end of it. But in the case in which I received instructions the defence was one based on insanity, and in these circumstances medical evidence had to be provided by a man well qualified in the highly specialised field of psychiatry. I wrote to the Clerk of the Assize some time prior to the trial setting out an estimate of the fees which the psychiatrist, who had been consulted in the case, proposed to charge, asking whether he considered them reasonable. I had a reply amounting to little more than an acknowledgment in which I was informed that the question of fees was one that would be decided by the Judge at the hearing. The psychiatrist, a well-qualified man of the first rank, had eight interviews with the prisoner (in the main, at the prison), conducted several searching tests on him, attended three conferences with counsel and myself, prepared detailed reports for the benefit of the defence, and attended throughout the two days which the case lasted at the Assize Court. During this hearing he was subjected to examination and cross-examination in the witness-box for at least two hours, and was constantly being called upon by counsel for the defence to provide guidance on the medical evidence supplied by the prosecution. Had this psychiatrist been consulted in a civil case, he could have commanded a fee of between 70 and 80 guineas, but for all his labours in this matter he was allowed 12 guineas. If the Court's attitude to highly qualified medical men in this type of case remains unaltered, solicitors may well expect to find themselves in some considerable embarrassment and difficulty in trying to find psychiatrists of the first rank to undertake such unrewarding work, and the question arises as to whether the public can feel satisfied that a poor person subject to a capital charge will always receive the best advice and assistance available." In view of Mr. Williams' letter, I think that there are grounds for believing that in many cases the advice of a psychiatrist will not be obtained in circumstances where it should.

I should like to conclude by quoting the views of a friend and former constituent of mine, Dr. J. A. Hobson, the well-known psychiatrist, who gave evidence in the Christie case, and who wrote as follows in the Howard Journal, in 1955: Recently, there was a man awaiting trial for murder who, for two months between the proceedings in the lower court and the assizes, was not seen by his solicitor. Though the circumstances of his offence were such as to suggest the likelihood of mental abnormality, no effort was made for him to be examined by a psychiatrist. A leading counsel was called in at the last minute. He at once appreciated the omission in the preparation of the case, and on the evening before the trial asked me, apologetically, to examine the man. I did my best, but my examination was too brief to be complete. There was no time to make necessary outside investigations, which I should have done if I had been called earlier, and no time to write a report. I found Counsel at his club and we had a short conference at 11 p.m. Next morning I gave evidence at the Central Criminal Court and was subjected to hostile examination by the Judge. His summing-up was against us, but the Jury brought in a verdict of ' Guilty, but insane'. I am sure that the verdict was the right one … I am equally sure that if Counsel had not called in a psychiatrist at the eleventh hour, this man would have been found 'Guilty' and might have been hanged. It is clear that if solicitors themselves are rewarded with inadequate fees for work of this kind they are not, in many cases, likely to go to all the additional expense which may be involved in getting the necessary specialist and scientific evidence which may be required. I think it is placing a quite unfair burden upon solicitors and counsel in cases of this kind. That is why we are proposing that the new Clause should form a part of the Bill, and I hope the Attorney-General will be able to deal with it sympathetically.

The Attorney-General (Sir Reginald Manningham-Buller)

I should like to reply to the serious points put forward by the hon. and learned Member for West Ham, South (Mr. Elwyn Jones) and the hon. Member for Rossendale (Mr. Anthony Greenwood).

Perhaps I might pick up, straight away, one point made by the hon. Member for Rossendale. I do not think that it is one that he intended to make, and I am sure that, on reflection, he will say that it was merely inaccurate. I do not believe that there is any substance whatever in the view that solicitors do not, because they may be getting low fees for defences under the Poor Prisoners' Defence Act, take every possible and proper step within their power on behalf of their clients. Certainly, that is the custom at the Bar, where the fees, again, are low.

I think that the hon. Gentleman might have used a sentence inadvertently. I feel that when he looks at the report of what he said—I am not seeking to engage in controversy with him—he will find that there was a sentence which, unless corrected, would give rise to the impression that solicitors, because the fees they were receiving had been low did not do all that could be done.

7.0 p.m.

Mr. Anthony Greenwood

I am most grateful to the right hon. and learned Gentleman for pointing that out. That was certainly not the implication which I wished to convey. What I was trying to say was that the resources available to solicitors are so limited that their style is rather cramped and that, possibly, they are prevented from doing everything which they would like to do in the interests of their client.

The Attorney-General

I realised that something more on those lines was really in the hon. Member's mind, but I thought that I would draw his attention to it because I am sure that he would not want a contrary impression to go out.

The new Clause does not raise the thorny and frequently-raised topic of the adequacy or inadequacy of counsels' fees or solicitors' fees under the Poor Prisoners' Defence Act, 1930. That subject has been raised a great deal in the past and I have answered very many questions on it. It does not arise on this issue and I do not propose to say anything about it.

The Committee will agree, I believe, that there must be a check, some control, on expenditure by the State for the defence. Someone has to do it. When the Legal Aid Scheme was considered very careful thought was given to how that control should be effected, both in civil and criminal cases. In civil cases, of course, where the solicitor thinks an expert witness should be employed, it is possible to go to the area committee and get its approval for the employment of the expert witness. The fee which will be allowed on taxation to that expert witness is still left to the taxing master to assess. In civil proceedings, one can get sanction for the engagement of an expert witness and the taxing master's control is limited to saying what is the proper fee for that expert. He cannot say, "You ought not to have called that expert witness in this case."

The procedure of sending applications to an area committee would not work in criminal cases. I need not go into that, but there are various reasons. Points come up at much shorter periods and that procedure just would not work. I can speak on that with a little authority, as I served on the Rushcliffe Committee on Legal Aid. There must be some other check for the control of public moneys in paying the costs of accused persons. How does that work at present? As the hon. and learned Member for West Ham, South has said, the clerk of assize, or the clerk of the peace—I am dealing with criminal cases generally—acts as a taxing officer. When the case is over, he goes through the bill produced to him by the defendant's solicitors and allows what he thinks proper.

That is how it operates. It resulted in the fact that solicitors appearing for the defence could not know in advance whether the cost of an expert witness would be allowed on taxing and, indeed, they could get no idea of the payment which would be allowed to that expert witness. I gather that the Clause is designed to try to cure that. When I read the Clause, I was not sure whether it was meant to provide that any witness whom the defence called should be paid out of public funds, leaving the taxing officer merely to tax the quantum, or whether it was designed to put the whole lot on public funds. I fully appreciate, because the hon. and learned Member for West Ham, South made it very clear, that what is really wanted is to get some greater certainty before the trial about the possibility of employing an expert and about the remuneration which that expert is likely to be allowed.

This matter was raised by the Law Society, in 1954. It was said then that it would be a great convenience if solicitors could be informed in advance whether expenditure on expert evidence would be allowed under the defence certificate. Consequent upon those representations, there were discussions between the Law Society and the Lord Chancellor's office and it appeared that the difficulty to which the Law Society was drawing attention was confined to medical evidence in capital cases. As a result of those discussions, the Lord Chancellor's office invited the clerks of assize to consider advanced applications for approval in those cases, that is to say, cases of medical evidence in capital charges.

The Law Society published a notice in its gazette, informing solicitors that when they were acting under a defence certificate in capital cases they should approach the clerk of assize before incurring expenditure on expert medical evidence, and that they would then be given such advice as was possible in the particular circumstances of the case, advice both on the reasonableness of incurring the charges proposed and on the fee which might be allowed. Since that arrangement was made, no further difficulties have been brought to notice in relation to either medical evidence or other expert evidence.

I dare say that the letter which the hon. Member for Rossendale read to the Committee may have been written about events which occurred before that arrangement was made, or perhaps written because that arrangement had not been drawn to the attention of those concerned. In that respect at least the debate has served a very useful purpose. The Committee will agree that there must be someone to exercise some control, in the sense that public funds could not be expended on paying for a large number of witnesses' attendance when there might be no justification for their attendance. There must be some control over that. There must be some control, also, over amounts.

I believe—and this is confirmed by the fact that there have been no difficulties since it started—that the new arrangement ought to be given a good trial and that it will work very well, indeed. Clerks of assize are persons of great experience in these matters and are able to judge whether the application of the defence solicitor is reasonable. As it is they who will ultimately tax the amount allowed, clerks of assize are able to give a very clear indication in advance about the amount which will be allowed, on taxation, for a particular witness. While I fully appreciate the difficulty in which some solicitors may have been placed in the past, I hope that these new arrangements will avoid those difficulties in future, as, so far as I am aware, they have done since they were introduced.

The hon. and learned Member for West Ham, South was quite right when he said that under Section 3 of the Poor Prisoners' Defence Act, 1930, the sum payable out of local funds for the defence on a defence certificate can include any other expenses, in addition to those of counsel and solicitors and the cost of the depositions, properly incurred in carrying on the defence, and there is no limit to that.

I hope that I have said enough to satisfy the Committee that these arrangements adequately deal with the matter. We cannot accept the new Clause, because, quite apart from the drafting, it does not appear to us to be clear whether it places on the taxation officer a statutory duty to accept a particular type of expenditure, or whether it also goes on to say that he must approve whatever amounts the defence has spent.

The situation is all right at present, but if, in future, there is any difficulty about obtaining information in advance from clerks of assize on the lines suggested, I hope that those difficulties will be brought to the notice of either my noble Friend or myself, because we can probably overcome them in a friendly manner, having regard to the wide discretion which now exists, rather than by introducing provisions of this kind.

Mr. Hector Hughes (Aberdeen, North)

I hope that the learned Attorney-General will think again about this Clause. He puts his opposition to it upon a very poor basis. His excuse is a very poor one when he says that a check must be put on expenditure by the State. Of course, we all agree that a check must be put on expenditure by the State; but, also, a check must be put upon the burdens of proof which are put upon accused persons, and this Bill seeks to put a new burden of proof upon accused persons.

The new Clause is not an unlimited one. It is limited with regard to the expenditure that would be put upon the State. It deals with The necessary provision for expert examination and evidence … It is not at large. It is limited to necessary expenditure, but if one looks at Clause 2 (2) of the Bill one seems that it puts a new burden of proof upon the accused. That subsection reads: On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder. I would remind the Attorney-General that it is the business of the Crown to see that justice is done and it is not the business of the Crown to get a conviction at any price, even by the exclusion of expert evidence. I am surprised to find that any member of the Bar, a fortiori the Attorney-General, objecting to a Clause of this sort, which would not give undue assistance to an accused person.

All that we ask is that when this new burden of adducing expert evidence is put upon the accused, at least the Crown should accord to the accused the opportunity of adducing evidence to discharge the new burden of proof. I would have thought that the inherent rightness and rightousness of this new Clause would have appealed to the Attorney-General. The Crown has adequate resources to get all the evidence, expert and other that it requires. Why should the accused not be given co-relative opportunities to defend himself, especially, as I have said, where there is this added burden upon the accused?

On all these grounds, I ask the Attorney-General to consider his ethics, to consider his sense of justice to accused persons, and to realise that the Crown's duty is not at any cost and at any price to seek to get a conviction. The duty of the Crown is to see that justice is done and to give the accused a fair opportunity of defending himself. That is all that this Clause, limited in its expression, would do.

Mr. Elwyn Jones

While I am most grateful to my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) for his spirited defence of the new Clause which I have moved, I am bound to confess that in view of the observations of the Attorney-General I shall not be disposed to press it to a Division.

I am reassured by the attitude which the Attorney-General has adopted towards this matter, but I must say to him that it would not be right to say that there are no difficulties in the operation of this matter at the present time. It would be invidious of me to refer to a clerk of assize of any particular circuit, but it is within my knowledge that in one assize, before a leading counsel charged with the responsibility of conducting a defence was able to obtain the services of the required psychiatrist, that counsel had to threaten to withdraw from the case, which fearful sanction was enough to induce that clerk of assize to give way. I am not identifying the clerk of assize, and I hope that anything that I say will not be related to any particular person.

The Attorney-General

If the hon. and learned Gentleman would like to discuss that with me later I should be glad to do so, and perhaps avoid the necessity of giving any further publicity to what must have been a very unfortunate incident; and publicity that might lead to certain suspicions being aroused in some quarters.

Mr. Elwyn Jones

That may be the more expedient course from everyone's point of view. I attach importance to the matters which have emerged in this debate, and I trust that the publicity which will follow from the discussion that we have had will draw the attention of solicitors to their rights under the new arrangements and will also draw to the attention of clerks of assize in particular their responsibilities.

Certainly, those of us on this side of the Committee who have proposed this new Clause do so in no reckless disregard of the need for having control over public expenditure. Of course, we appreciate the necessity that there should be responsibility in that regard. On the other hand, we attach very great importance to equality before the law, the absolute necessity that there should not be one law for the rich and one for the poor in a capital case, or, indeed, in any other criminal case. There is no doubt that the arrangements which exist still do give certain advantages to the rich man accused of murder. I think, however, that through changes in the administration of justice in this century the differences have been narrowed down a good deal, and that, certainly in some areas, a good deal of latitude is allowed for the provision of the best man available on behalf of the defence in murder cases. But it is important that we should not relax in our determination to maintain the principle of equality before the law. I am glad that that is the approach which has actuated the mind of the Attorney-General in this matter, and in view of the assurances which have been given from the Front Bench opposite, I beg to ask leave to withdraw the Motion.

Motion and Clause, by leave, withdrawn.