§ Mr. S. Silverman (by Private Notice)asked the Attorney-General why he has refused to the defence, in the case of Regina v. Vickers, his fiat to bring a further appeal against conviction to the House of Lords, and whether he will now reconsider his decision.
§ The Attorney-General (Sir Reginald Manningham-Buller)The Attorney-General can grant a certificate for an appeal to the House of Lords in a criminal case only if, in his opinion, the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance and it is desirable in the public interest that a further appeal should be brought. I was unable to reach the conclusion that those conditions were satisfied in this case and it was, therefore, my duty to refuse my certificate.
In answer to the second part of the Question, I do not think that it is open to me to reconsider my decision, but if it 1143 were my decision would be to the same effect.
§ Mr. SilvermanIs the right hon. and learned Gentleman aware that his decision has been received with considerable surprise and great dissent? Will he confirm that in this case two points of law were raised which were described by the Lord Chief Justice as being of grave importance? Will he also confirm that these two points of law were new points of law, in the sense that they arose for the first time under an Act of Parliament which received the Royal Assent as recently as last April? Will he also confirm that the Court of Criminal Appeal at first differed itself as to what its decision should be? Why, therefore, does he not consider that it is in the public interest that these matters should be decided by the highest judicial tribunal?
§ The Attorney-GeneralIt is quite true that this case was first considerd by a Court consisting of three judges. It was later considered by a Court consisting of five members, of whom the original three judges formed part. As the Lord Chief Justice said in his judgment:
At the first hearing of the case last Monday, there being not complete unanimity among the members of the Court who heard the case, I assembled a full Court of five members and I am happy to say that there is now complete unanimity in the Court and the judgment I am now about to deliver is the judgment of the Court and agreed to by all the members of it.So that there was no dissent among the members of the Court, and the member of the Court who felt doubt originally presumably had that doubt resolved. [An HON. MEMBER: "Clearly?"] Clearly, presumably, because he joined in the decision. Counsel for the Crown was really not called upon to argue at all. I said a few words, but did not speak for more than a couple of minutes. [An HON. MEMBER: "Just as well."] [Laughter.] This is a serious matter. It is a capital charge and I do not regard it as a matter for any hilarity. Counsel for the Crown was really not called upon to argue at all, and the Court did not find it necessary to reserve its judgment.I must say, having given this matter the fullest consideration I can, that I could not regard the argument advanced on behalf of the appellant as really a tenable argument, and the judgment of 1144 the Court of Criminal Appeal indicates that it formed the same view. Nor could I really regard it as in the public interest that a further appeal should be brought to try to reverse a decision of the full Court of Criminal Appeal and to get the House of Lords to accept the argument as to the construction of the Statute which was advanced by the appellant and which was similar to the argument advanced by the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) in debates in this House on this Section, and which the hon. Gentleman himself said would make nonsense of the Section.
§ Mr. SilvermanWould the right hon. and learned Gentleman not agree, since he has referred to the debates which took place in the House, that both he himself and the then Home Secretary assured the House of Commons repeatedly that their intention in Section 1 of the Act was to ensure that a man could not be convicted of murder who had no intention to kill? Does not the decision of the Court of Criminal Appeal mean the exact opposite of that?
§ The Attorney-GeneralThe hon. Gentleman is quite wrong. Throughout those debates we made it perfectly clear that the intent necessary to constitute murder was either an intent to kill or an intent to do grievous bodily harm. If the hon. Gentleman will look at the OFFICIAL REPORT of Our debates he will see that this was made clear more than once.
§ Mr. HaleWould the right hon. and learned Gentleman bear in mind two points? First, that until the highest court in the land has decided on a matter of this importance every counsel engaged in a murder case in future will be in the difficulty of knowing that the law may be altered by the highest tribunal once the Attorney-General gives his fiat. Secondly, that the clearest statement was made from the Front Bench opposite, during the discussion on Section 1 of the Act, that the doctrine of constructive malice was being abolished by the Section, and the clear decision of the Lord Chief Justice is exactly what we said. We received assurances to the contrary from the Front Bench. We said that we thought the Section did not succeed in abolishing constructive malice and the Lord Chief Justice has now decided that. 1145 Surely that is a matter upon which the decision of the highest tribunal should be taken.
§ The Attorney-GeneralI really cannot reconcile the hon. Gentleman's remarks with the observations of the Lord Chief Justice in giving the judgment of the Court. He made it clear that the doctrine of constructive malice was removed by the Section as was announced to be the intention in this House. [HON. MEMBERS: "The exact opposite."] He said, and I will read the last part of the judgment:
The Court desires to say quite firmly that in considering the construction of Section 1 (1), it is impossible to say that the doing of grievous bodily harm is the other offence which is referred to in the first line and a half of the Section. You have to show independently of the fact that he is committing another offence that the act which caused the death was done with malice aforethought as implied by law. The existence of express or implied malice is expressly preserved by the Act and, in our opinion, a perfectly proper direction was given…Nothing I have said today is in any way inconsistent with what was said at this Box during the passage of that Bill.
§ Mr. PagetSurely the whole point, and one which we debated at very great length, was this—I raised the point myself. I said that I was very doubtful whether Clause I did, in effect, abolish constructive malice, and whether, under that, it was necessary that there should be either an intention to kill or an intention to maim. The Government said that it was their intention that there must be an intention either to kill or to maim. The medical evidence in this case was that the blows were intended to prevent the old lady interfering but were not of a nature to maim. The Lord Chief Justice held that there need not be an intention to kill her or an intention to maim, and that is the whole point.
On that, since an interpretation has been put on it by the Court of Criminal Appeal which is precisely the opposite to the meaning which the Government assured us it would bear when they asked us to pass the Section, we might at least see whether the House of Lords agrees with the Court of Criminal Appeal or with the Government on their interpretation of the Section.
§ The Attorney-GeneralI am sorry, but the hon. and learned Gentleman is quite wrong. The decision of the Court of Criminal Appeal fully endorses the view expressed from this Box as to the effect of that Section. It was said more than once from this Box that the effect of Section 1 was to preserve as an ingredient of the offence of murder an intent to do grievous bodily harm, and that the Court of Criminal Appeal has held to be the case. Therefore, there is no inconsistency between what the Court of Criminal Appeal has held and what the Government have said was the effect of this Section.
§ Mr. S. SilvermanI ask your leave, Mr. Speaker, to move the Adjournment of the House under Standing Order No. 9—
§ Sir I. FraserOn a point of order—
§ Mr. SilvermanI ask leave, Mr. Speaker—
§ Mr. SpeakerSir Ian Fraser. A point of order.
§ Sir I. FraserI hesitated to raise my point of order, Mr. Speaker, because of the obvious importance of the questions which have passed to and fro across the Floor of the House, but, without dealing in any way with the merits of what has been said, may I, in the interest of order and of the House, ask you what sense of urgency there is in this matter, Sir? If there is a sense of urgency and someone is to be hanged tomorrow, I deeply apologise to the House and to you for rising now, but I cannot help feeling that abstruse legal matters such as those which have been discussed are not best dealt with by question and answer. Unless there is a sense of urgency in the matter, may I, with respect, ask you why the Private Notice Question was allowed?
§ Mr. SpeakerThe hon. Member may rest assured that I satisfied myself that there was an element of urgency in the matter.
§ Mr. SilvermanI ask leave, Mr. Speaker, to move the Adjournment of the House, under Standing Order No. 9, to call attention to a definite matter of urgent public importance, namely,
The refusal of the Attorney-General to grant his fiat to enable John Willson Vickers, now 1147 lying under sentence of death, to appeal against his conviction to the House of Lords as provided for by the Criminal Appeal Act, 1907.
§ Mr. SpeakerThe hon. Member asks leave to move the Adjournment of the House under Standing Order No. 9 to call attention to a definite matter of urgent public importance, namely,
The refusal of the Attorney-General to grant his fiat to enable John Willson Vickers, now lying under sentence of death, to appeal against his conviction to the House of Lords as provided for by the Criminal Appeal Act, 1907.That is not within the Standing Order Parliament has, by the Criminal Appeal Act, cast upon the Attorney-General the duty of either certifying or refusing to certify that a case of this character raises such issues that he ought to let it go to the House of Lords. That is a discretion cast by Statute upon the Attorney-General, and, therefore, it becomes a part of the ordinary operation of the law. Matters of that sort have been ruled by my predecessors on many occasions not to be subjects which can be raised under Standing Order No. 9.
§ Mr. SilvermanMay I submit that, in spite of that, Mr. Speaker, this is not the ordinary operation of the law if that expression means that it is a judicial act of any kind? If it were a judicial act, naturally one would not be permitted to ask questions about it and certainly not to move this Motion. It is the duty laid upon the Attorney-General by the Criminal Appeal Act, but it is an administrative duty for which, as with all other administrative duties, the Attorney-General is responsible, like other Ministers, to the House of Commons. Therefore, I submit to you that if the Attorney-General comes to a decision which the House of Commons wishes to question, and if it is an urgent matter and of public importance, the House, if it so wishes, ought to be allowed to discuss it under the Standing Order.
§ Mr. SpeakerI have considered this matter with great care, foreseeing that such an application would probably be made, and I am quite satisfied that this is not within the Standing Order. The action which the Attorney-General has taken is in discharge of a burden laid upon him by Parliament, and it is part 1148 of the machinery of criminal appeal. If, at a later stage and on a proper Motion, the House can criticise the decision to which he has come, it is not a matter which can be debated under Standing Order No. 9.
§ Mr. WoodburnOn a point of order. If this is a judicial function of the Attorney-General, how is the House entitled, first, to question him on it? Secondly, how can the Attorney-General be wholly judicial since he was also the prosecutor in the case? He called for a verdict, and it would seem that the court, having come to a decision, he has now vetoed the possibility of the verdict being questioned.
§ The Attorney-GeneralFurther to that point of order, Sir. May I make it clear that I did not conduct the prosecution of the man? I appeared on the appeal before the full court.
§ Mr. SpeakerWith regard to the first point raised by the right hon. Member for East Stirlingshire (Mr. Woodburn), I myself had the same doubts as he has expressed, but I find that in 1911 the then Attorney-General, Sir Rufus Isaacs, was asked a similar question by Mr. Bottomley—not the right hon. Member for Rochester and Chatham (Mr. Bottomley)—which was then allowed, and in face of that precedent I felt that I had to allow the Private Notice Question today. But I cannot allow a debate on it.
§ Mr. J. GriffithsFurther to the point of order. I gather from what you have said, Mr. Speaker, that the authority which the Attorney-General has been exercising is a burden laid upon him by this Parliament. If it is a burden laid upon him by Parliament, will you tell us how the House can raise the matter and call the Attorney-General to answer for the responsibility placed upon him in this way?
§ Mr. SpeakerThere are all sorts of ways open to the right hon. Gentleman and the House, by Motion or otherwise, but it is not a question which can be raised on a Motion for the Adjournment of the House under Standing Order No. 9.
§ Mr. SilvermanIf it is conceded, Mr. Speaker, that under some other procedure the House of Commons might debate this 1149 matter, then surely the only question for you to determine is whether it is of sufficient urgency and importance to displace the ordinary business of the day?
§ Mr. SpeakerThat is not a proper statement of the Parliamentary procedure. There are many things which are important and urgent, but which cannot be raised under the Standing Order.
§ Mr. HaleFurther to the point of order, Mr. Speaker. Every Adjournment debate that has taken place on a Motion of this kind over the last two years has been in respect of a Ministerial responsibility placed by an Act of Parliament upon a Minister, including appointments to nationalised industries. I recall one such case. Here is a political responsibility placed upon the Attorney-General by Parliament, and it has been the subject of an important reply by Sir Rufus Isaacs, one of the most distinguished holders of the office of Attorney-General who later became Lord Chief Justice of England. May I say that that was in the case of Stinie Morrison, which has been the subject of controversy ever since, and that a great many people are still very dissatisfied that that case did not go to the House of Lords? In those circumstances, if this can be the subject of a Private Notice Question, is that not ipso facto a demonstration of the fact that it can be the subject of an Adjournment Motion?
§ Mr. SpeakerI do not think that it follows at all that because a Question may properly be asked by Private Notice it is necessarily a matter which can be debated on the Adjournment. I must adhere to my decision that this is part of the ordinary administration of the law.