CRIMINAL APPEAL ACT, 1907 (AMENDMENT) (Hansard, 31 July 1957)

§ Mr. Montgomery Hyde (Belfast, North)
I beg to move, That leave be given to bring in a Bill to provide for leave to appeal to the House of Lords in criminal matters being determined without a certificate of the Attorney-General. The Bill which I am seeking leave of the House to introduce this afternoon has a simple and straightforward object. It also has the support of hon. Members of all parties. It is to put appeals from the Court of Criminal Appeal to the highest judicial court in the land, that is, the House of Lords, on the same footing as appeals in civil matters in this country and appeals in criminal matters from the colonial courts to the Judicial Committee of the Privy Council.
At present, an appeal to the House of Lords from a decision of the Court of Criminal Appeal can only be brought by leave of the Attorney-General who issues a certificate, or fiat as it is sometimes called, for this purpose. The intention of this Bill is to dispense with that requirement and to leave it to a judicial body, namely, the House of Lords itself, acting through its Appeals Committee, to decide whether a prima facie case has been made out for bringing such an appeal.
I wish to make it clear at the outset that in asking leave to introduce this Bill I am not making adverse reflections on the conduct of my right hon. and learned Friend the Attorney-General or any of his predecessors in office in exercising this power of granting or withholding a certificate. Indeed, throughout the past half century, during which they have exercised this power, it is right to say that successive Attorneys-General have, by and large, been more than fair to appellants and, in some cases, have granted certificates when the Law Lords would have refused leave to appeal if the matter had rested with them.
In one such case, which was heard on appeal by the House of Lords in 1918, the late Lord Sumner defined the Attorney-General's power in these words: The certificate of the Attorney-General, which is the condition precedent to an appeal to your Lordships' House from a decision of 1271 the Court of Criminal Appeal, is granted in his discretion and is the subject neither of review nor of criticism … That did not prevent Lord Sumner from proceeding to criticise the then Attorney-General in the strongest possible terms for allowing an appeal to be brought which, in Lord Sumner's view, should never have been brought at all.
Until 1907, there were no means whereby a person convicted at assizes or the Old Bailey could appeal against the judgment of the court. The Criminal Appeal Act, which was passed in that year, altered the position by creating the Court of Criminal Appeal, consisting of the Lord Chief Justice and the other judges of the King's Bench Division, and also providing in certain circumstances for appeals from that court to the House of Lords.
The relevant section of the Criminal Appeal Act, 1907, is as follows: If in any case the Director of Public Prosecutions, or the Prosecutor, or defendant, obtains the certificate of the Attorney-General that the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance, and that it is desirable in the public interest that a further appeal should be brought, he may appeal from that decision to the House of Lords …. There are, therefore, three points which must be satisfied before the Attorney-General issues his certificate. The ground must be a point of law; it must be one of exceptional public importance; and it must be in the public interest that the appeal should be brought.
I think it is right to say that when the Liberal Attorney-General, Sir John Lawson Walton, in 1907, was moving the original Clause, it contained no reference to the Director of Public Prosecutions, and it was only at the instigation of a Member on this side of the House, Mr. Cave, later Lord Chancellor, who asked that the Director of Public Prosecutions should be responsible in case the prosecutor appealed from the decision of the Court of Criminal Appeal, that the Director of Public Prosecutions' name was inserted in the Clause.
Therefore, the Attorney-General did that at the same time and added the phrase about public interest, so that it should be clear that the Attorney-General would issue his certificate in the case of such an appeal only where he considered 1272 that it was in the public interest that the Director of Public Prosecutions should appeal.
The reason why I am opposed to the continuance of the present system does not rest upon technical grounds. It is a matter of principle. My reason is that the question whether the appellant in a criminal case in the Court of Criminal Appeal—he may be either the prosecutor or the defendant—should or should not go to the House of Lords ought not to be decided by a Minister of the Crown—that is, the Executive which is responsible for the prosecution. It ought to be the decision of a judicial body. This body, in my submission, should be an absolutely impartial body which can weigh the evidence as between the subject and the Crown, removed from any possibility of political considerations or prejudices.
When the Clause was originally moved by Sir John Lawson Walton, he said that its object was this: In cases where strong public feeling was excited and jurists were divided in opinion, it was only the judgment of the highest court of the realm that would be universally accepted."—[Parliamentary Debates, 19th July, 1907; Vol. 178, c. 1063.] Some people, particularly some lay members of the public, think that this object has not always been achieved, and certainly one experienced criminal lawyer, who is now a judge at the Old Bailey, his honour Judge Maude, a Member of this House in 1948—he was then Member for Exeter—had this to say—and I apologise for this quotation, but I think it is very important: … I believe that the present situation is intolerable … Take, for example, an ordinary murder case. There, the ordinary practise is that either the counsel appointed by the Attorney-General—counsel to the Treasury at the Old Bailey, or, in the provinces, counsel nominated by the Attorney General of the day—appear for the prosecution. The man, who now, possibly, is about to be hanged, then feels that it would be wise, in view of what has been said by his legal advisers, to appeal to the House of Lords, because he believes there is a matter of law involved which is of exceptional public importance and that it is desirable in the public interest that an appeal should be allowed. No one in his senses, if he came from a foreign country, would imagine that the English Parliament had so arranged matters that it was impossible for such a person to go to the House of Lords, unless consent was obtained from the head of the Department responsible for the prosecution or … from the very person who may 1273 have appeared for the Crown, particularly for example in a poisoning case …."—[OFFICIAL REPORT, Standing Committee A, 9th March, 1948; c. 1387–8.] The cases which have disturbed the public mind have been those in which the barrister in charge of the prosecution has been the person who refused the certificate. The most notorious and often quoted case is the prosecution of Sir Roger Casement for treason, in 1916. I myself believe that there is little doubt that the Attorney-General was right in law in refusing a certificate, but to the outside public it did not seem to be in accordance with the British tradition of justice and fair play that the decision should have been taken by the barrister who conducted the case for the Crown throughout, and conducted it with some heat, since, as Sir F. E. Smith, and later, Lord Birkenhead, he was bitterly opposed politically to the prisoner.
More recently, there has been the case of John Willson Vickers. I do not wish to say much about that, because it is to be discussed tomorrow. No doubt, in refusing his fiat, my right hon. and learned Friend gave the matter his fullest consideration, as, indeed, he has himself told the House. What the public, particularly the lay public, finds difficult to appreciate, particularly the public outside the House, is why my right hon. and learned Friend found himself unable to certify that a point of law of exceptional public importance was involved when, first of all, the Lord Chief Justice in the Court of Criminal Appeal has said that the case was one of great importance, and, secondly——

§ Mr. Speaker
Order. The hon. Gentleman should not anticipate tomorrow night's business. I understand that his Bill states a general proposition. Although he may illustrate it by examples, I think that he should avoid an example which is to be the subject of discussion tomorrow night.

§ Mr. Hyde
With all respect, Mr. Speaker, I did say that I did not wish to say anything more about that, except to remind the House that it was a case which had excited a certain amount of public feeling.
There is a very old legal maxim which must be familiar to everyone in the House: Let justice be done, though the heavens fall. I have been trying to find out when this maxim was first referred to in this country, and I have discovered that the earliest reference to it was in 1603, by a barrister of the Middle Temple, John Manningham, who was, I believe, an ancestor of my right hon. and learned Friend. By another coincidence, the first word of this maxim in Latin is "fiat", in the phrase "Fiat justitia"—"Let justice be done".
So long as my right hon. Friends fiat is required for these appeals, justice may well continue to be done, but, in my submission, it cannot be seen to be done with that clarity and certainty which we in this country have been accustomed for generations to expect under our judicial system. That is the primary reason that I now seek the leave of the House to introduce the Bill.