§ Order for Second Reading read.
§ 11.5 a.m.
§ The Solicitor-General (Sir Jocelyn Simon)
I beg to move, That the Bill be now read a Second time.
Most law officers during their term of office come to this Table with an Administration of Justice Bill. Such a Bill is usually dry, technical and complex. It is generally confined to detailed matters of procedure, which leads all too often to a debate of the kind described as a "lawyer's paradise"—by which is meant, I take it, one where the serpent is firmly coiled round the tree of knowledge. I am glad to see that the law is well represented in the House, but I hope that lawyers and laymen alike will recognise that this Bill differs from the usual Administration of Justice Bill.
The Bill makes great improvements in the administration of our criminal law, and I think that it will be generally agreed that those improvements are of wide public importance. With one odd exception, this Measure has been warmly and generously welcomed by the organs of enlightened opinion. In fact, I think that it was only the leader writer of The Times, with bees buzzing in his bonnet and bile swilling round his heart, who called it "an unsatisfactory Bill." In fact, he sourly said that it was a case where no bread at all might be better than the half loaf offered.
It seemed to me that that opinion stood in striking contrast to the reactions of the rest of the Press. For example, the Guardian spoke of the Bill as…replete with liberal provisions relating to the criminal law.1694 The News Chronicle said that it is…the most valuable reform which will come before Parliament this session…a measure which strengthens the freedom of the individual and further entrenches the rights of the accused.The comment of the rest of the Press was to similar effect.
It is, therefore, with pride and satisfaction that, in the place of my right hon. and learned Friend the AttorneyGeneral—who, as the House appreciates, is engaged in a forensic capacity in another place—I present this Bill to the House. It falls into three main parts. The first part deals with appeals to the House of Lords in criminal cases. We confidently expect that the changes we propose here will eliminate the grounds of the criticism that has been made in one or two recent cases.
The second part deals with the law and procedure relating to contempt of court. That is a subject of vital interest to the Press and, therefore, to the public at large, which depends on the Press for the information necessary for the formation of opinion and thus the influencing of the conduct of national affairs.
The third part of the Bill makes important changes in the procedure for dealing with applications for the historic writ of habeas corpus, a writ that is rightly regarded by both lawyers and laymen as one of our outstanding contributions to the rule of law and the liberty of the subject—or perhaps in the more homely words of Sam Weller "The have-his-carcase, next to the perpetual motion, is vun of the blessedest things as was ever made."
I will deal with these three main parts of the Bill in turn. First, there are the appeals to the House of Lords in criminal cases. As the law now stands, an appeal lies to the House of Lords in a criminal case only from a decision of the Court of Criminal Appeal or the Courts-Martial Appeal Court. In either case it can only be brought on a certificate by the Attorney-General that the decision of the court appealed from involves a point of law of exceptional public importance—I emphasise the word "exceptional"—and that it is in the public interest that a further appeal should be brought.
1695 The provisions relating to the Attorney-General's certificate have often been attacked as anomalous and wrong in principle, though it is generally conceded that in practice they have worked reasonably and fairly. Perhaps a greater anomaly is that there is no appeal to the House of Lords in a criminal case from a decision of the Divisional Court. That is a court of co-ordinate jurisdiction with the Court of Criminal Appeal; it consists of the same judges, and its decisions in civil matters are appealable in the ordinary way.
It is with that anomaly that Clause 1 is primarily intended to deal. The Government accept that appeals should lie from a decision of the Divisional Court to the House of Lords in a criminal cause or matter. The Clause will get rid of the statutory provision that the decisions of the Divisional Court in such cases should be final. This is provided for in Clause 1 (1). The result is that in future it will be possible for either party to appeal from a decision of the Divisional Court on a Case Stated by magistrates or quarter sessions or on an application for one of the prerogative orders of prohibition, mandamus and certiorari. I will deal with the effect of the Clause on appeals in cases of habeas corpus when I come to the provisions of the Bill directly relating to that writ.
The criteria to be applied in allowing appeals to go to the House of Lords from the Divisional Court must obviously be the same as those applied in deciding whether appeals should lie from the Court of Criminal Appeal. It would not be acceptable to extend the procedure by Attorney-General's certificate to Divisional Court cases. It follows therefore that that procedure should be abolished in its application to cases before the Court of Criminal Appeal.
I can assure the House that no one is more gratified than my right hon. and learned Friend that he should be relieved of this task. It is always an onerous one, as I am sure the right hon. and learned Member for Newport (Sir F. Soskice) will bear out. The Criminal Appeal Act is so drawn that even the most hopeless applications can be laid before the Attorney-General for his consideration. Perhaps I can give one example from the hundred or more applications which the Attorney-General 1696 has to consider in a year. There was recently an application for a certificate to enable a prisoner to appeal to the House of Lords against a decision of the Court of Criminal Appeal which refused him an extension of 7½ years within which to appeal against a sentence which he had already served.
Moreover, the task is itself an invidious one—where, for example, it falls to the Attorney-General to consider an application in a case in which he himself has appeared. Although I do not for a moment doubt that full justice is done in such cases, it will not in the eyes of many people manifestly appear to have been done. Nevertheless, we do not think that it would be possible to take the easy way out of allowing an appeal to be brought from the Court of Criminal Appeal or the Divisional Court simply with the leave either of that court or of the House of Lords. We are convinced that any such provision would lead to the House of Lords, or at any rate its Appeals Committee, being swamped with applications for leave to appeal. The public interest moreover requires the administration of criminal justice to be swift as well as sure.
On the other hand, we do not think it right merely to provide that the court should apply the criteria applied by the Attorney-General under the Criminal Appeal Act. These criteria may be appropriate in the case of a Minister answerable to Parliament in a matter of great public interest. They are not entirely appropriate to a court of law. The new conditions laid down by Clause 1 (2) are less stringent, as the House will have seen. They are that an appeal should lie to the House of Lords if the court below certifies that a point of law of "general" public importance—no longer "exceptional" public importance—is involved in its decision and that court or the House of Lords considers that the point is one that ought to be considered by the House of Lords.
These seem to us to be the right criteria. Their object is to ensure that points of law of general application requiring an authoritative decision should go to the House of Lords. It is not intended that the House should be asked to pronounce upon points of law that are not likely to arise in more than an occasional isolated case, or on those points of general importance which are so 1697 well-established that they ought not now to be called in question.
I think that some of the criticisms of these conditions are based on a misconception. The purpose of allowing an appeal to the House of Lords is primarily to obtain a decision at the highest level on important points of law. It is not primarily to allow a convicted person to have one more chance of securing his acquittal. Moreover, I would remind those who want some relaxation of the prescribed conditions that under the Bill, as indeed under the existing law, an appeal lies to the House of Lords at the instance not only of the convicted person but also of the prosecutor.
I have so far been dealing with Clause 1. The next ten Clauses contain incidental, procedural and consequential provisions, and I think that only in the case of three is it necessary for me to mention them to the House at the moment, and even then only briefly. The first is Clause 5. The combined effect of subsection (1) and subsection (5) of that Clause is that where a prosecutor successfully appeals to the House of Lords the convicted person is not to be rearrested or imprisoned unless the court appealed from has made an order providing for his continued detention pending an appeal, or permitting his release only on bail. Secondly, Clause 8 provides for legal aid in the House of Lords. Thirdly, by Clause 10 the provisions relating to the Court of Criminal Appeal are applied to the Courts-Martial Appeal Court.
Then there are the provisions in the Bill relating to contempt of court. The common law has always taken a stern view of contempt of court. It has always been the law that a person who publishes matter that tends to prejudice pending proceedings commits contempt of court. He cannot escape liability by showing that he did not know that proceedings were pending, nor could the distributor of the matter be heard to say that he was ignorant of its contents. That has always been the law, but the sternness of these rules was, I think, forgotten until they were brought to light in two recent cases.
In one case it was held that a newspaper reporter would have been liable even if, as he alleged, he was not only ignorant of the fact that proceedings were pending but had taken all reason 1698 able steps to find out whether or not they were pending. In the second case, the distributors of a foreign periodical were held liable although it would not have been reasonably practicable for them to have scrutinised every edition of the periodical to satisfy themselves that no contempt was committed.
The law has been strongly criticised in both these respects—and not only by the Press itself, which of course has an interest in the matter. It has also been subject to adverse scrutiny by the organisation known as "Justice," which in recent years has made more than one valuable contribution towards the maintenance and improvement of the Rule of Law in this country and abroad. We are satisfied that the law as I have ventured to set it out to the House is too harsh. The common law on the subject was formulated at a time when there were no newspapers as we know them today, and when the publication and distribution of printed matter were very different from what they are now. We think that the law must be changed to accord with contemporary conditions.
The House will, however, appreciate that it is necessary in this matter to strike a balance between the legitimate demands of a free Press on the one hand and the requirements of the proper administration of justice on the other. Both are essential contributories to the liberty of the individual. We do not want to fetter the Press. Equally, we cannot tolerate in this country anything like what has been called "trial by newspaper".
I think that the House will agree that in Clause 11 of the Bill we have struck the right balance. It allows a publisher the defence that he did not know and had no reason to suspect that proceedings were pending, and a distributor the defence that he did not know and had no reason to suspect that the publication contained matter calculated to interfere with the course of justice.
In Clause 12 we have sought to clarify the law in another respect in which it has been criticised, again notably by "Justice"—that is, in relation to the publication of proceedings in Chambers. Proceedings in Chambers are private, in the sense that the public is not admitted to them; but it does not necessarily follow that publication of proceedings in Chambers, still less of orders made in 1699 Chambers, does any harm calling for the intervention of the law.
We have not, therefore, taken the line which has commended itself to some courts, that the publication of reports of proceedings in Chambers is in itself contempt of court. We have confined the application of the law of contempt to those cases where publication is inherently likely to be harmful. It will continue to be contempt to publish reports of proceedings where the court in exercising its parental jurisdiction over infants, or where the court sits in private for reasons of national security, or where the proceedings relate, for instance, to a secret trade process so that the publication of the details would frustrate the very purpose for which the proceedings were brought.
But apart from those special cases, publication of the proceedings of a court sitting in Chambers is not to be contempt, unless the court has itself expressly prohibited publication of the matter. I shall return to that point in a moment. Even in those exceptional cases it is not to be contempt to publish an order made in Chambers, or an accurate summary of it, unless the court forbids it. Moreover, it must not be thought that the court has an unfettered discretion to prohibit publication of the proceedings or the order. It can do so only by virtue either of express statutory power or of its limited inherent powers, for example, where publicity would defeat the object itself of having the proceedings in private.
Perhaps I may be allowed to quote the striking words of the Guardian again in relation to this Clause. It said:Bentham's aphorism that publicity is the soul of justice has been carried out to the letter.Those two Clauses—11 and 12—deal with the substance of the law of contempt.
Clause 13 deals with procedure. It introduces a comprehensive system of appeals. The law distinguishes between civil contempt and criminal contempt. Civil contempt is disobedience to an order or other process of the court. Criminal contempt is conduct, including publication of matter, which obstructs or prejudices the administration of justice. At present an appeal lies in cases of 1700 civil contempt but there is no appeal in cases of criminal contempt.
Clause 13 gives a right of appeal in all cases of contempt, civil and criminal, to both parties. We have sought to interfere as little as possible with the existing appeal procedure. It is largely for this reason that we have rejected, after very careful consideration, the proposal put forward by "Justice" and incorporated in a Bill introduced by the Chairman of "Justice," Lord Shawcross, in another place, that all appeals should lie to the Court of Appeal.
The proposal made by "Justice" was supported on the ground that it is desirable to have a consistent body of authority on this branch of the law. I suggest that that approach is misconceived. The Court of Appeal has never had any criminal jurisdiction, and it is not constituted so as to deal with criminal matters. It is also, as the right hon. and learned Member for Newport will know well, an exceptionally busy court, so that it would be undesirable to add to its burdens unless this were absolutely necessary. Furthermore, the field where a consistent body of case law is particularly sought is what I may perhaps loosely call newspaper contempt. That invariably comes in the first instance before a Divisional Court of the Queen's Bench Division, and we think it right that an appeal should go from the Divisional Court in this, as in other criminal matters, to the House of Lords rather than to any other tribunal.
As the House will see from the end of subsection (4), where the Divisional Court is sitting as a court of first instance, as it does in cases of newspaper contempt, the appeal will lie simply with leave, and not subject to the conditions on which leave may be granted which are prescribed by Clause 1 of the Bill.
It has been suggested that in the case of contempts committed in the face of the court it is inappropriate that there should be an appeal; and it has been argued in support that we do not contemplate any appeal to the courts in what are said to be the comparable cases of contempts of either House of Parliament. Those arguments were pressed in another place. As long ago as the mediaeval Year Books there is a case described in the current Anglo-French of the period.
1701 It says of a man:Il jetted un brickbat a le juge que narrowly missed.In these softer times the weapon tends to be a tomato or an orange. Happily, the occasions are rare. However, it seems to us to be wrong that in these days anybody could be sent to prison by a court without any appeal, particularly where that court is, of necessity, personally affected by the offence. And I think that there are constitutional considerations which distinguish contempts of the Houses of Parliament.
Finally, there are the provisions of the Bill relating to habeas corpus. Clause 14 is an important one. By subsection (1) it provides that on a criminal application for habeas corpus only a Divisional Court may refuse an order for the release of the person restrained. A single judge may grant such an order, in the interests of the liberty of the subject: only a Divisional Court may refuse it.
A further effect of this, read with Clauses 1 and 15 (3), is to give the applicant a right of appeal to the House of Lords. That is an important extension of the rights of a detained person. At present there is no appeal in an application for habeas corpus in a criminal case.
Clause 14 (2) disposes for good and all, I am afraid, of a cherished legend. Most of us, I think, were brought up in the belief that on a refusal by one High Court judge of a writ of habeas corpus the applicant could go to another in the hope that he might grant the writ, and so on until he had exhausted—no doubt in every sense of the term—the whole High Court bench. But a recent decision of the Divisional Court has suggested that if this legend ever had any foundation it was true only of vacation time. Subsection (2) generalises two decisions affecting the applicant in that case, because the decisions, in strictness, applied only to recourse to one Divisional Court after another. With the disappearance of the single judge's right to refuse habeas corpus and the provision of an appeal on law from the Divisional Court, any right to go from one judge to another, even if it existed, would no longer serve any useful purpose.
That brings me to Clause 15. This rationalises the procedure on appeal in habeas corpus cases, which is at present confused and illogical. In a criminal 1702 case there is no appeal beyond the Divisional Court. In a civil case the applicant for the writ can appeal, subject to the normal provisions as to leave, from the Divisional Court to the Court of Appeal and thence to the House of Lords. So, too, can a respondent, unless the case is one involving the liberty of the subject, in which case the order of the court granting the writ for the release of the prisoner will be final. The effect of the provisions of this Bill is that the applicant and the respondent will have identical rights of appeal. An appeal in a criminal case will go direct to the House of Lords, with the leave of the court or the House; but such leave will not be subject to the conditions prescribed by Clause 1 of the Bill. Once a court has made an order granting the writ for the release of the applicant he will be liable to be detained afresh as the result of a successful appeal by the respondent only if the case is a criminal one, and even then only if an interim order for his detention or release on bail has been made under Clause 5 of the Bill.
I think I have said enough of the provisions of this Bill to satisfy the House that it contains many valuable reforms affecting the administration of the law in respects which most closely affect cherished rights and the liberty of the individual citizen. I mentioned earlier a singular article on this Bill in The Times. To my mind it is a very queasy stomach which prefers no bread to half a loaf, but I think from what I have said that the House will feel that this is very much more than half a loaf. It is certainly more than the few slices contained in the useful Bill introduced earlier in this Session in another place, which The Times welcomed with rather incongruous enthusiasm. I quoted earlier from The Guardian and the News Chronicle, and I wonder if I may conclude with a citation from the Economist about this Bill, the heading is "Liberal Reform", and it starts:The Government's Administration of Justice Bill, laid before the House of Lords on Tuesday, has allayed the fears aroused that it would water down the provisions of Lord Shawcross's Contempt of Court Bill, which it supersedes. In fact it goes a good deal furtherAfter reviewing the provisions of the Bill it ends:There is no doubt of its liberalising effect, and it should be given a warm welcome.1703 I believe that that will be its reception here, and I confidently commend it to the House.
§ 11.33 a.m.
§ Mr. Gordon Walker (Smethwick)
I should like to thank the hon. and learned Gentleman for and congratulate him upon the customary courtesy and care and, above all, clarity with which he has laid before us a Bill which is necessarily complicated and which is in a field which is full of technicalities and terms of art. I do not say this in any slighting way. I think that one of the great strengths of our democratic system is that our legislation is lawyer-like and that we do not enact generalisations but deal with particular cases and procedures that will stand up in the courts. I say it because I am not a lawyer and I am very conscious that, as a layman, I may well get my technical terms and terms of art wrong. For that I apologise in advance and shall, no doubt, be corrected.
However, I take some comfort from the fact that, in the end, under our system it is Parliament, which is composed primarily of laymen, that has to make the law, and that that law will work only if laymen respect it, and they will respect it only if it satisfies their general sense of justice and fairness. It is, therefore, I think, important that, while many lawyers should speak upon a Bill of this kind, some people who are not learned in the law should also give their views about it.
The hon. and learned Gentleman rightly said that this was different from many of the rather dry administration of justice Bills which come before us. It does raise many major constitutional issues and matters which concern the liberty of everyone, from rich newspaper owners down to the poorest man in the land. In the nature of things, this will be the last time for many years that a Bill of this sort will come before us, because, obviously, we do not want to be constantly tinkering about with the law, and, therefore, it is very necessary that we should look at it with a critical and far-sighted eye. I shall do my best as a layman to say what I think there is good in it—and I think there is very much good in the Bill—and what seems to me less good, and one thing in particular which I regard as bad, and cer 1704 tain things which seem to me to be left out but which should be in.
I do not agree, let me say straight away, with the criticisms of The Times, though I shall make a certain number of critical observations of my own. I think it best to go through the Bill in its three parts, for that is the only logical way of proceeding.
First, there is the question of criminal appeals to the House of Lords. I think one must unreservedly welcome the initiation of appeals from the Divisional Court. It amazes me that we have gone so long without it. However, here it is, and we are putting that right.
I personally welcome the ending of the Attorney-General's fiat. I agree that this is a logical consequence of appeals from the Divisional Court. One could not have the Attorney-General's fiat for appeals from the Divisional Court and it would be monstrous and intolerable to have to have it for one channel of appeal and not another. Apart from that, I am glad that we have ended the Attorney-General's fiat. It is in my view right to do so. I do not doubt that it has worked well. That may be so. But it just offends my sense of justice. The hon. and learned Gentleman said that it appeared to many to be anomalous and wrong. It certainly seems to me that quasi-judicial decisions should not be taken by a Minister of the Crown and that justice is not manifestly seen to be done where the Attorney-General himself may have to take a decision whether there may be an appeal in a case in which he may originally have himself appeared. If he succeeds, as I have no doubt he does, in distinguishing between his forensic and judicial capacities, nevertheless it does strain one's sense of propriety and common sense and justice that he has to do it, and I am glad that this is to come to an end.
I must say frankly that I do not like the restrictions imposed in Clause 1 upon appeals in criminal cases to the Lords. It is true that the restriction is now somewhat less than it has been. It is to be a matter of general public importance and not exceptional public importance and this will be decided by a court and not by the Attorney-General. But it is still extremely restrictive. I have thought a great deal about this 1705 and, of course, studied very closely the debates in another place. There seem to me to be really extremely strong arguments, which I do not think the hon. and learned Gentleman fully met, against this restriction that the lower court has to find a point of law of general public importance before either court can give leave for appeal.
This does not apply in all appeals. It applies only to appeals in criminal cases and only from British courts and not those which can reach our courts from other parts of the Commonwealth.
Unless I am wrong this particular restriction of the necessity to find a general point of law of public importance does not apply to appeals in cases of contempt under Clause 13 (4). Nor does it apply to appeals in habeas corpus cases under Clause 15 (3), which was Introduced, I am glad to say, on Report in another place.
Therefore, it is only to one of the three things we are dealing with that this restriction applies—only to appeals in criminal cases and nothing else. It does not apply, naturally, to appeals to the Judicial Committee even in criminal cases. We get the anomalous position that I would have a less restricted right of appeal if I committed a crime in a Colony than if I committed it in this country. That is an extraordinary position.
What worries me most is that this restriction does not apply to appeals in civil cases. We must be careful not to insist too much upon this distinction between appeals in civil cases, which go forward only with leave of the court, and appeals in criminal cases, which have this further hurdle, this narrower-meshed sieve, to traverse. We must be careful not to give the impression that our law is more concerned with the rights of property than with liberty and life. It is very important that we should never run any risk of that.
I know the arguments on the other side. One was deployed with force and in some detail by the hon. and learned Gentleman, namely, that the House of Lords, or at any rate its Appeals Committee, would be cluttered up and swamped if we did not have this sieve. I doubt this. Leave is still needed of one or other of the courts, even if we get rid of this restriction, and as far as I know the Judicial Committee is not over 1706 whelmed although it is not shielded by this special extra restriction.
I recall that the same arguments were used by lawyers and judges against the setting up of the Court of Criminal Appeal in 1907. They were used with great force for a very long time. Between 1843 and 1907 there were thirty-two abortive attempts to set up a Court of Criminal Appeal and they were largely frustrated because of this argument about cluttering up the courts. It is a faulty argument, anyway, to say that one must not do something because the courts would be cluttered up. We must adapt the machinery of justice to the needs of justice and not cramp, confine and compress the needs of justice to the machine.
If the court was cluttered up, one of the remedies would be to increase the size or the number of divisions in which the court sits. The only remedy is not to restrict appeals. This is too much of a lawyers' argument. On the whole, the ordinary man thinks that, if justice ought to be done but cannot be done because it will clutter up the courts, the remedy is to adapt and expand the machinery of justice.
Another argument, which the hon. and learned Gentleman just touched on but to which the Lord Chancellor gave a lot of attention, was the need for speed and finality in criminal cases. One must attach weight to this. There is more need for it in criminal than in civil cases, and we do not want in this country the kind of horror that arose around the Chessman case in the United States. Nonetheless, this argument for the need for speed and finality can be exaggerated, and often is.
It really applies with full force only to capital cases. It is only there that there is real need for speed and finality, because it is inhuman to keep a convicted person waiting an intolerable time. One of the most powerful arguments against capital punishment—if I may say this in parenthesis—is that if criminal justice is to be speedy and final, we should not have an irrevocable sentence, because speedy justice is more liable to human error. In all other criminal cases, involving fines and imprisonment, the argument, although it has force, can be easily overdriven. I think that many people in the position of being subject to fine or imprisonment would 1707 sooner have a little delay before starting their sentence if they feel that they have a decent case for appeal.
In this part of the Bill there is one omission that I should like to see remedied. This was a point also made by The Guardian, which the hon. and learned Gentleman quite properly quoted in his favour on a number of occasions. It is the case for a permanent court of criminal appeal, sitting permanently for whatever number of days may be necessary. I understand that there are about 2,000 applications for leave to appeal in a year and all these have to be dealt with only on Mondays in the law term. This gives some people the impression that the court is often rather hurried and has to digest more than it can, and it does not give the clear impression that justice is being done. The date of the article in The Guardian was 15th March. It seemed to me to have force in it and we should give consideration to the setting up of a permanent Court of Criminal Appeal sitting on as many days as is necessary to deal with applications and cases.
I come now to cases of appeals in cases of contempt, both civil and criminal. The Government have on the whole hit the matter about right in changing the substance of the law relating to newspaper contempt, by introducing what is, in effect, a new defence of innocent dissemination. This seems to me about right and I would not go any further in this direction. It is absolutely right—though I abhor this principle in general—that the onus of proving this defence should lie upon the defence because, as the hon. and learned Gentleman said, we must be extremely careful not to get trial by newspaper as is the case often in the United States. That country has a legal system akin to ours; but it has allowed trial by newspaper to arise. We could get that in this country too if we were not careful and constantly on the watch.
On the whole it is better that newspapers should be at a bit of risk than that we should risk slipping into trial by newspaper. On the whole, the Government have this right. I do not know whether the hon. and learned Gentleman is to reply to this debate—
§ Mr. Gordon Walker
I am glad, for we can put questions direct to him. One question which has worried me is that this Bill does not apply to Scotland. Nonetheless, some of the cases which recently have extended the notion, and, to some extent, the uncertainty, of contempt have occurred in Scotland, and many newspapers are published both in England and in Scotland or circulated in both countries. Is it the Government's intention that the Scottish law should also be amended, or are newspapers to have this new protection South of the Border but to remain at the same risk as before—at perhaps a little greater risk—North of the Border?
The Times particularly fastened on Clause 13, dealing with channels of appeal, and described them as uneven, complex and illogical. I do not agree. I think that the channels of appeal contained in Clause 13 are indeed somewhat uneven, complex and even illogical, but they correspond to the actual logic of the structure of our courts. That is something that we should not lightly disturb. If we have a properly working system, structure and relationship between various courts, we should be very reluctant to disturb it.
The Government have, with skill, fitted this new appeal system into the structure of our courts without disturbing them. Though there may not be a very clear a priori logic about it, there is a real, an actual, logic in what they have done. I am glad that there is to be an appeal against contempt in face of the court. This provision has been criticised by judges, but their claims in this matter have swollen over the centuries. The hon. and learned Gentleman went back to 1631, to the case in which a man committed a contempt becauseI1ietait un brickbat against le juge qui narrowly missed.But a jury was empanelled; the fellow was tried. It is true that he had his hand cut off and was hanged in the presence of the judge. But he did have a trial by jury. Today the punishment would be less severe, but it would be imposed by a judge without a jury and, until this Bill becomes law, without appeal. This Bill gives the right to appeal. I think that we are the only civilised country in the world in which, 1709 until this Bill becomes law, a man can be put in prison without any appeal at all. This seems to be a long overdue reform.
I want to ask the hon. and learned Gentleman a question about Clause 12, which deals with courts sitting in private and which says that the publication of information relating to proceedings in such courts shall not of itself be a contempt of court. If there is an appeal against a commitment for contempt by a judge sitting in private, in chambers or otherwise, when that appeal is heard, presumably by the Divisional Court, will all the facts then be made public? It may be very hard to make an appeal against a commitment for contempt in a court which has been sitting in private or where the judge has been in chambers, unless all the proceedings can be made in public, which would involve us in some difficulty with which the Bill does not deal.
I wonder whether the limited provisions for secrecy will apply to the hearing of an appeal against commitment for contempt if it arises out of a case in which the provisions for secrecy apply. On the one hand, if they do not, injustice will be done; on the other hand, if facts can be produced, then the original need for privacy is infringed and destroyed. Perhaps the hon. and learned Gentleman will deal with that.
As a layman, I am somewhat worried about the extent of litigation in private and the use of judicial powers exercised in private. Immense powers can be exercised by judges sitting alone and secretly—committing people for contempt and so forth. They have all sorts of powers which they can exercise over me and other citizens. It amazes me that so many people hold up their hands in horror at the mere suggestion that preliminary hearings before a magistrates' court should be held in camera, while they never say a word about the immense powers which are exercised in secret by judges.
That offends my sense of justice and fills me with a certain resentment against judicial arrogance, a feeling which I am entitled to have, but which should not be evoked in my breast, being a reasonable sort of man, and which is evoked in my breast by things of this sort. No judge should exercise judicial power over a citizen, except on evidence 1710 examined and cross-examined and, except in the most exceptional circumstances, in public. We should be much more careful about the powers which we allow to courts in camera and judges sitting alone and in secret.
Now I come to the question of appeals in cases of habeas corpus. Of course, I welcome the reform unreservedly, because it is overdue and I am very glad that appeals, either in criminal or civil cases, do not have to go through the extra sieve of the establishment that a point of law of general public importance is involved. But this is one part of the Bill which troubles and worries me, although I welcome most of what it does.
At this point, I did not find it altogether easy to follow the hon. and learned Gentleman and it may be that I have got it wrong. As I understand it, there is now to be a right for the prosecution to appeal against a decision by the Divisional Court releasing a man on an application for habeas corpus—I am now talking about criminal cases, but I think that this applies in civil cases, too. I am horrified by that. The Lord Chancellor said that this was a new and absolutely novel thing and I am amazed that a novel and revolutionary change of this kind should have received so little comment during the debates on the Bill in another place.
Referring to habeas corpus, the Lord Chancellor said:The right of appeal for either side in a criminal case is something entirely new, and gives effect to the desire expressed by the Lord Chief Justice and the other Judges in the recent Hastings cases."—[OFFICIAL, REPORT, House of Lords, 24th March, 1960; Vol. 222, c. 257–8.]Before I accept a change like that, I need more justification than the view of some judges. This is a major change of principle and, as far as I can see, no other reason has been given. The reason given for the change does not satisfy me and I hope that I speak for a great deal of public opinion when I say that we should not depart from this ancient principle of our law.
A prisoner should be absolutely discharged if he is acquitted or if he succeeds in an application for habeas corpus. This new provision, this novel and revolutionary departure from one of the greatest safeguards of the liberty of the subject, obliterates one of the proudest 1711 marks of British justice which distinguishes our justice from that of other lands which do not have the Common Law.
It is also an anomalous provision which does not fit into the logic and structure of the Bill. By Clause 15 (1), the prosecution cannot appeal against the decision of a single judge if he grants an application for habeas corpus in a criminal case, but the prosecution can appeal against the decision of the Divisional Court, which is a superior court. It is most extraordinary that where there is one judge, there is no right of appeal to the prosecution if a man is granted his right to habeas corpus; whereas if a Divisional Court, which is a court higher in the hierarchy, grants an application for habeas corpus, there may be an appeal by the prosecution. There must be some justification for saying that one judge sitting alone can release a man absolutely, without appeal, whilst the Divisional Court cannot do so. Why is there that distinction. It is anomalous, wrong and illogical, as well as wrong in principle.
I cannot understand the distinction between appellants for habeas corpus in civil cases and in criminal cases. If in a civil case a man is released by a Divisional Court and there is a successful appeal by the prosecution, the man is not himself confined again and only the principle of the law is established; but in criminal cases the person can be actually recommitted. Having got his liberty by the grant of an application for habeas corpus, he can then be put back in prison if the prosecution wins its appeal. Why should criminal cases be picked out?
Although I would not agree with it, I could see a certain logic if it were that the same thing applied to civil and criminal cases, but I cannot understand why the State power should be singled out as it is in criminal cases. I feel very strongly that, if an applicant succeeds in an application for habeas corpus, that should be the end. He should have a right of appeal, just like a convicted man, but the prosecution should not. In these matters we should have a bias in favour of the liberty of the subject and against State power, but the Bill has a bias the other way. It is biassed because of this introduction of 1712 a great and revolutionary change in favour of the State's power; for the full severity of the change applies only to criminal cases against the liberty of the subject.
This is the one part of the Bill which, when the hon. Members on this side of the House sit on the benches opposite, I would want to see changed and amended as soon as opportunity offered. I use my words with care—this is the one part of the Bill which I view with horror, which horrifies me.
There is one other matter to which I want briefly to refer. It is not in the Bill, but I think that it is related to habeas corpus, although I may be corrected. The more I think about it, the more concerned I am. It is the whittling away of one of the most important safeguards against arbitrary arrest. The chief safeguard is that no one in this country can be arrested by the police, or any authority, save on a clearly formulated charge which alleges a breach of the known law. Then he has to be produced before a magistrate, who can verify that there is such a formulated charge, on warrant or otherwise.
That seems to be being undermined by the increasing practice of the police of detaining instead of arresting a man. There is often a period of detention during which a statement is made, the charge being then formulated and the man formally arrested. There is a sort of pre-arrest, which is unknown to the law, and then full arrest. I want to know what is the legal authority for detention by the police. Is it known to the law? Or is it a sort of arrest that is technically not an arrest and therefore gets round this great safeguard that none of us can be arrested save on a known charge which is formulated clearly and brought before a magistrate?
A man who is detained may or may not be arrested. He may be released after he has been kept for an unknown and undefined period, allegedly at his own consent but with no one able to check this once he is in the custody of the police. The word "custody" is used and the word "detention" is used. These things deprive people of their liberty, and it seems to me that this is getting round what I regard as one of the great safeguards of liberty. I know that the argument for this is that we 1713 cannot catch criminals without it, but we must balance the need to catch them and the need to protect the rights of my fellow citizens and myself.
I have been a little critical and perhaps have given the wrong impression. This is inevitable when one concentrates on things which one wants altered. I think that there are some inadequacies and one bad thing in the Bill, and I have concentrated upon the things which I would like to see amended or inserted in it. I agree with the hon. and learned Gentleman that the Bill is very much better than half a loaf. It makes very welcome changes in the law which are long overdue and which will improve the administration of justice. Even though some of the things which I should like to see changed are not changed, I still welcome the Bill, in spite of its inadequacies. I will therefore support it on Second Reading. None the less, I feel that there are certain inadequacies in it which I should very much like to see changed.
§ 12.2 p.m.
§ Mr. Dudley Smith (Brentford and Chiswick)
I want to deal only with Clauses 11 and 12, and I speak with some temerity in this debate, because I am not a lawyer. As some hon. Members know, I am connected with the newspaper industry and I must therefore declare my interest in welcoming this Measure, particularly the two Clauses which I have mentioned.
I am sure that both the national and local Press will consider that the law will have been improved and clarified once the Bill gets on to the Statute Book. As my hon. and learned Friend has said, the Bill provides for amending the law so as to give reasonable protection to newspapers in connection with contempt of court. This is of considerable importance, not merely in the interests of newspapers, which, after all, are commercial enterprises, but in the public interest where publication is valuable. The protection of freedom to report within the bounds of decency and reasonable fairness is one which concerns us all, whether or not we admire the Press.
Newspapers commit a criminal contempt of court when they publish something, either in the form of news or comment, which interferes, or is calculated to interfere, with the course of justice This is a valuable provision in a country 1714 which prizes the high quality and fairness of its legal system, but the great difference at present is between civil and criminal contempts, and there is no right of appeal in the case of criminal contempt. For a long time I have felt that this was manifestly unfair, as have many people concerned with the production of newspapers. There has been a great deal of criticism in the Press which is not slow to wage war on its own behalf, and, indeed, criticism has been extended by lawyers, as my hon. and learned Friend said.
The chief worry is when proceedings are pending and the newspaper, in all innocence, is unaware of this. Clauses 11 and 13 regularise that position. Indeed, the Bill provides a new and welcome defence for anyone who can show that at the time of publication he did not know, or had no reason to suspect, that judicial proceedings were pending or strongly contemplated. He must prove that he has taken all reasonable care to find out what is the position. I imagine that when the Bill becomes law the courts will be rather stringent on this point, and it is right that they should be.
Although I favour this particular provision, I can foresee some difficulties over it. For instance, there is the question of the propriety of commenting on a sentence before the time for appeal has expired. This is something which worries newspapers from time to time, and, nowadays, in many cases they err on the side of caution. Even for the highly experienced journalist it is often difficult to know when proceedings are imminent or that there is a likelihood of them. Inquiries can be extremely hard to make and in some cases almost limitless.
I was interested to see this point brought out in the Guardian on 7th December last year when it commented on the Bill. It stated:The question, then, is whether anything a newspaper publishes before an arrest is made can affect the mind of a prospective juryman. There are cases where the police suspect a man of a crime but have not made an arrest. Press reports then could be prejudicial. But for newspapers there is an immediate practical difficulty in distinguishing beforehand between what could conceivably be the prejudicial material and what should be reported in the public interest. The right of free speech should not be further curtailed without compelling reasons. What is more, the practical difficulties will be immensely increased if it is now generally accepted that the mere making of inquiries by reporters is a contempt. How 1715 are newspapers to know—especially in financial and commercial affairs—that the police suspect a fraud or some other crime? The police do not often trumpet it abroad, or hint at it privately.Some popular newspapers run the "exposure" type of article about a man or woman sailing close to the law and committing undesirable practices. They ask, in the public interest, that this person should be prosecuted and, in many cases, they taunt him, with the idea possibly of getting him to sue them for libel so that they may bring the affair more into the open. This is a highly dangerous journalistic practice and it is not one which I favour. Nevertheless, it has been responsible for unmasking a number of rogues who eventually got their deserts. But woe betide any newspaper which publishes such an exposure and then finds that the man has been charged or committed for trial elsewhere for one of the offences which they allege against him, or even has been charged with something entirely different.
As I understand the Bill, it will ease that situation. But in taking all reasonable care, will it be incumbent on such a newspaper, exposing a man, say, in London, to check with all the various divisional courts of the vast Metropolitan area that he has not been made the subject of a charge which is pending? In my experience, most newspapers conscientiously try to observe the law of contempt when publishing news items about crimes which have been committed. They may be running a story of a murder hunt with many descriptive details. Then the news comes in that someone has been detained by the police and a charge is likely. Immediately the story is revised and often the presses are halted so that the page containing the story can be changed.
Once a man has been charged, as most hon. Members know, only the barest details appear until he has stood his trial because the matter is then fully sub judice. There is a particular problem for evening newspapers which are produced at speed and have several editions daily. It is possible for the report of a crime to appear in the news columns and a report of an arrest and charge to reach the stop press of the same edition.
1716 Putting the cause of the Press aside for one moment, I can also foresee possible difficulties over the man who is the chief suspect in a sensational case and is hounded by the Press. I also condemn this practice, even though before entering the House I was a professional journalist. We have all seen the case, for example, where a woman has been murdered and there is a hue and cry for the killer. The police are unable to obtain all the necessary evidence for an arrest at that moment, but, privately, they strongly suspect the husband. He is badgered by the Press and often offered money for his own story, and is talked into making statements, very unwisely, without first being able to consult a solicitor. Headlines shriek out, "'I am innocent,' says husband. 'This gossip about me is untrue'."
This in innocent enough technically, but the world reads the report, nods its head and says, "Oh, it is the husband who did it, is it? He is obviously guilty, otherwise he would not go about making these statements." Such a man has his remedy in the law of libel. Nine times out of ten he is guilty and rightly deserves to be convicted, but he is still entitled to a fair trial and not trial by newspaper, as the right hon. Member for Smethwick (Mr. Gordon Walker) said. Trials can be seriously prejudiced by preliminary publicity, and it is right that the law should require a very high standard of observance.
The new protection of distributors seems fair, and I understand that it is very similar to the defence of innocent dissemination which is available to people who are connected with cases of libel. In my experience distributors who commit contempt of court are practically always innocent, except in those rare cases where as individuals they have maliciously distributed printed material in furtherance of some cause or project. Shops and bookstalls handling reputable publications cannot possibly be more than technically responsible for a contempt.
Clause 12 contains a valuable clarification of reports of hearings in private and in chambers. The present law is rather obscure on this point at the moment and I am one of those who think that the fewer the hearings in private there are, the better, not only in the 1717 interest of the Press, which is very keen to have as many public hearings as possible, but also in the public interest, because without them there is a great amount of innuendo and gossip and inaccurate reports in the Press.
The courts have power to prohibit publication, but in my view those powers, at present, are rather ill-defined. I hope that eventually the recommendations, or many of them, of the Tucker Committee will be implemented, because some of them impinge on these arguments. There was the recent case in Nottinghamshire which was held in private and on which I wrote to the Lord Chancellor. Quite rightly, the Lord Chancellor pointed out that the committal court has full power to go into private session. Obviously, a certain amount of local damage was liable to be done. Nevertheless, under this Measure the fact that proceedings have not taken place in open court is not in itself a reason for treating the report as contempt. That is very good.
This Bill contains a number of most useful improvements and I personally am very glad that it has come before the House.
§ 12.12 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
Everybody who has studied this Bill must, I think, welcome it as, one of constitutional importance and as one which is certainly important in the administration of our law.
I have always been struck by the extraordinary contrast which exists with regard to appeals in civil cases as compared with criminal cases. In civil cases, there is a right of appeal with the leave of the Court of Appeal or with the leave of the House of Lords. Yet in criminal cases the appeal to the Court of Criminal Appeal is on a question of law only or with the leave of the Court of Criminal Appeal or on the certificate of the trial judge. There is no appeal as, of right otherwise. As far as criminal cases are concerned, the appeal to the House of Lords can be given only on the Attorney-General's fiat in special circumstances.
When we look at the causes dealt with by the Divisional Court, we see that they are of the greatest importance. They involve, among other things 1718 habeas corpus and the prerogative orders—mandamas prohibition and certiorari.
Appeal in civil matters lies with leave of the Divisional Court or Court of Appeal, while there is no appeal at all in criminal matters. We must remember that this has sometimes led to the extraordinary position of irreconcilable decisions where there is no chance of having these matters resolved by any decision of the House of Lords.
I start with the fact that judges are clearly not infallible and that persons should have the right of appeal. In particular, they should have the right of appeal, in my view, in criminal cases where the liberty of the person is involved. I think that they ought to have that right even if it means the risk of frivolous appeals and the necessity of providing against congestion in the court. After all, the establishment of the innocence of one person is worth setting off against the waste of time which may occur in dealing with unnecessary or frivolous appeals.
The Bill is a good Bill. It removes anomalies and provides for appeal where it did not exist before, but in my view it is a good Bill to some extent only. I say "to some extent" because of the fact that the right of appeal is limited by the provisions of Section I (2). One must study that carefully to see how the right of appeal is limited. The leave to appeal is sub-divided in this way. First of all, the Divisional Court or Court of Criminal Appeal may give leave on the ground that it is a matter of general public importance, and that point, I apprehend, can only be decided by the Divisional Court or by the Court of Criminal Appeal and not by the House of Lords. Having done that, the court must go further and must say that the point is one properly to be considered by the House of Lords, and if the Divisional Court or the Court of Criminal Appeal does not say so then the would-be appellant hat the right to go to the House of Lords so that the House of Lords may say so.
Why is this distinction in appeals in criminal matters persisted in so much? Why do we have that procedure compared with appeals in civil matters where the Court of Appeal or the House of Lords can give leave? In other words, in civil cases it is a matter for the discretion of the Court of Appeal or the 1719 House of Lords whether leave to appeal should be given.
Let us assume that in the Divisional Court or in the Court of Criminal Appeal there is a matter in which one judge differs from the rest of the court on a point of law which affects the litigant directly but which is not a matter of generai public importance. There will be no appeal—there is no provision for it. Why is not that litigant entitled to ask the court or the House of Lords for leave to appeal? After all, injustice may well be done in cases even when the matter is not one of general public importance.
It seems to me that the Bill is based upon the previous practice with regard to appeals from the Court of Criminal Appeal with the leave of the Attorney-General. The test in the 1907 Act was that it was a point of exceptional public importance and that it was desirable in the public interest that there should be a further hearing. The Bill really follows that test except that it substitutes the word "general" for the word "exceptional" and except when it says that it is a point that ought to be considered by the House of Lords instead of it being desirable in the public interest that there should be a further hearing.
My submission is that there ought not to be this distinction between the right of appeal in civil cases and the right of appeal in criminal cases. Surely the proper thing is to leave it to the court to say, in its unfettered discretion, whether there ought to be an appeal or not. No doubt the courts will have regard to matters like general public importance and to the question whether the House of Lords ought to be troubled with the matter at all. But they will not be trammelled by those conditions because, after all, one can conceive of matters that ought to be heard by the House of Lords in the interest of the litigant where there is an important point of law even though it may not be a matter of general public importance.
I would point out the anomaly that will now exist. In the case of an appeal in a civil matter from the Divisional Court a person still has the right to obtain leave to appeal, untrammelled by the conditions set out in Clause 1 (2).
1720 It is only in a criminal matter that those limitations exist, and therefore we are going to create an anomaly in that direction. Why should the position be that whether a point of law is one of general public interest is merely left to the decision of the lower court? If the lower court decides that it is not a matter of general public importance, there is an end of the matter. The litigant has no right, the defendant, the criminal—or whoever he may be—has no right to go to the House of Lords and ask whether they consider it a matter of general public importance. Why should there not be the right to go to the House of Lords for such leave?
It was said by the Lord Chief Justice that if one judge considered it a matter of general public importance that would be enough, the court would grant leave. That view was criticised by one of the noble and learned Law Lords who said that he was rather sorry that that had been said and that the view of the majority of the court ought to prevail. There is an example of the sort of confusion which may arise when opinions differ.
I appreciate that it is said that the House of Lords might be flooded by appeals and that there may, of course, be many ill-conceived appeals. I have already said something about the importance of appeals in criminal matters. I think that is something fundamental, to which we should have regard. But on this point about flooding out the House of Lords, or ill-conceived appeals, after all, is there any reason why we should not make provision in the House of Lords, by way of a committee or otherwise, for a number of Law Lords to sit and consider whether leave to appeal should be given? They do not take up a considerable amount of time; we know how they are dealt with in considerable numbers by the Court of Criminal Appeal. Surely it is not a reason to say that the tribunal of the House of Lords would be flooded out with appeals. Provision should be made for that sort of thing. My submission is that it is so vital a matter that it is wrong to say that because of the question of convenience the right to apply to the House of Lords should be denied.
I do not mind the argument that many of the appeals are ill-conceived. It was 1721 said, I think by the Lord Chief Justice, that in many of the appeals in the Court of Criminal Appeal if one sat in the court one would see the number of hopeless appeals which were made. There may be many hopeless appeals, but if among those appeals there are one or two deserving of attention, surely in the interests of justice it is worth making provision to deal with them.
Our criminal law could well do with far more decisions from eminent judges sitting in the House of Lords. I submit that generally the procedure with regard to leave should be as in civil cases. If we are not to have that, I respectfully suggest that the limitations as set out in Clause 1 (2) should not remain but that it should be proper to apply for leave to appeal to the House of Lords on either of the grounds referred to, including the first ground, whether the matter is one of general public importance.
I welcome the provision relating to contempt of court. Obviously, there should be a right of appeal in criminal contempt as there is in matters of civil contempt. I recognise that there is a great deal of force in the criticism which has been made that there may be awkward results in cases where the dignity of the court is offended or where witnesses refuse to answer. But I think that, on balance, the answer is that there ought to be an appeal in these cases, particularly on the ground that justice would appear to be done; especially where we get a judge who obviously is adjudicating in a case in which he is personally concerned. I am very glad that opportunity has been taken to insert provisions in Clause 11 with regard to innocent publication and distribution. It is a long-needed reform, to remove the offence of contempt from those publishing matter in ignorance or having no reason to suspect that proceedings were pending.
I wish to say a word about habeas corpus. Clearly the present law presents another anomaly. There has always been the right of appeal in civil cases and not with regard to criminal matters of habeas corpus. The Bill, as originally presented, gave a right of appeal subject to those limitations which are set out in Clause 1 (2). I am glad to see that as a result of deliberations in another place, these limitations have gone and now there is an 1722 unrestricted right of appeal. I am hopeful that some of the present limitations may go after further discussion during the Committee stage proceedings in this House.
I agree with the point made by my right hon. Friend the Member for Smethwick (Mr. Gordon Walker) relating to the right in habeas corpus of an appeal on the part of the prosecutor, so to speak, or the other side. I think that my right hon. Friend referred to a very important point. In our law we have always taken the view with regard to crime that when a person is tried by a jury, the jury may be utterly unreasonable in returning a verdict of not guilty, but that verdict stands and there is no appeal from it on the part of the Crown. Why should we suddenly depart from existing procedure and a state of affairs which we have always recognised with regard to habeas corpus, and suddenly take the opportunity afforded by this Bill of enacting something which I regard as a retrograde step?
My right hon. Friend referred to it as one which he viewed with horror. Whether or not it is one which ought to be viewed with horror, it is certainly a retrograde step. Here we are giving a power to the other side, so to speak, to interfere with a decision which gives liberty to a person who has obtained his writ of habeas corpus. What justification there is for that I do not know. I do not know where the clamour for such a thing came from, I do not know whetherr public opinion demanded it, but I suggest that it is a matter which ought to be put right. A right should not he given to appeal against a decision where a man is let free on a writ of that kind.
I should like to take the opportunity to support the view advanced that there ought to be a permanent Court of Criminal Appeal sitting to deal with cases. Anyone who practises in the courts knows how difficult is the position with regard to that. A criminal under appeal, waiting for his appeal to be heard, loses, as we know, a certain amount of time with regard to his sentence until that appeal is heard. That is one point.
The second point is this. There are many cases of criminals, people found guilty, especially in cases of an involved character which have taken a long time to try, who wait many months before 1723 the hearing of the appeal takes place in the Court of Criminal Appeal. It may be because there is so much work on the part of the Court of Criminal Appeal. But there is another reason which I put before the learned Solicitor-General. It is something which I hope may be taken up. There is very often great delay because of the difficulty in getting the transcript of evidence as quickly as possible. One knows of cases in which months are taken before the transcripts are made available to the defence in order that counsel may properly study the matter, formulate grounds of appeal and be ready to fight an appeal. I take this opportunity of drawing the attention of the Solicitor-General to what I think is a very vital matter—this question of delay in the hearings in the Court of Criminal Appeal in many cases.
I think that the two matters to which I have referred—expediting the provision of transcripts and the setting up, as my right hon. Friend suggested, of a permanent Court of Criminal Appeal—would certainly assist to a very great extent. I have made some criticisms, and I hope the points raised will receive further consideration. I fully recognise that this Bill is an important step forward. It is, I am sure, a matter for sincere congratulation that a speedy attempt has been made to deal effectively with matters which have been the subject of considerable criticism and dissatisfaction.
§ 12.31 p.m.
§ Mr. Ronald Bell (Buckinghamshire, South)
This is a valuable and important Bill, as the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) has just said. Like previous speakers, I feel that a list of criticisms of it would give a wrong impression of my general attitude to the Bill. May I, therefore, say compendiously at the beginning, as each of my predecessors has said at the end, that I regard this as a good Bill and a step in the right direction, and I concentrate upon criticisms only because the merits are perhaps quite obvious?
I associate myself first with what was said by the right hon. Member for Smethwick (Mr. Gordon Walker) and the hon. and learned Member who has just spoken about the limitation of appeal from the 1724 Court of Criminal Appeal to the House of Lords in criminal cases. I feel that, although there is this change of words from "special importance" to "general importance," we are working upon the same principle as before, with this difference. The appellant is going to be a little bit worse off, because it is the court which has just found against him which is to have the final and only say whether he should appeal to the House of Lords. Naturally, judges will execute their duty here with complete impartiality, and not be influenced, consciously at any rate, by the fact that they have just given a decision adverse to the accused, but still they will be asked to decide, and I imagine that the decision will be made there and then very quickly in court, whether this is a point of general importance.
Further, I agree with what the hon. and learned Member for Stoke Newington and Hackney, North has just said—that even if the point of law is not one of general importance, it still may be one which should go to the House of Lords for decision. If it is a doubtful point of law, the fact that it may apply only to a few cases should not shut out the appellant from having a decision of the House of Lords. The Court of Criminal Appeal always delivers a single judgment, which is the judgment of the court. If one of the three judges disagrees, that fact is masked from the public by law. That may be a good rule, but it does not alter the fact that a majority judgment on a point of law may send a man to prison, and then the court may decide, quite rightly, that the point is not one of general interest, so that, although it was doubtful on the first occasion, but of immense interest to the individual affected, no appeal will lie.
If it were a civil matter, an appeal in such a case would clearly lie, because that is the criterion, and if the Court of Appeal thinks the matter is extremely doubtful and that it had reached its decision by a very narrow balance, it gives leave to appeal. In a criminal matter, where liberty or honour itself may be at stake, the consideration is much harsher and the mesh against the appellant is much finer. I therefore feel that he was, in a way, better off when he could go to someone who had not before been engaged in the case, such as the Attorney-General, and at least get 1725 a decision on the fiat which was detached and could be leisurely reached after due consideration, perhaps between a number of people in the Law Officers' Department.
I am not in any way saying that the fiat should be retained. I am pointing out only that if we replace it by this procedure, it may very well not be an advantage to the appellant, but a disadvantage. I cannot help feeling that the right solution is to leave this out altogether, and to leave it generally to the Court of Criminal Appeal, or the Appeals Committee of the House of Lords, to grant or refuse leave to appeal. That would put an increased burden on the Appeals Committee of the House of Lords, the more so because we are extending legal aid to the House of Lords under this Bill.
After all, we shall have to face, quite soon, the question of extending legal aid to the House of Lords in civil appeals. I hope it will be very soon, and I believe that the matter is under consideration. When that is done, because a litigant can get legal aid in the House of Lords and might be described as having nothing much to lose by appealing, are we to introduce a provision of this kind in relation to civil appeals in order to regulate the burden upon the Appeals Committee? Of course, the answer is that we are certainly not going to do that. If that is true in civil cases, the fact that we are extending legal aid to the House of Lords in criminal cases by this Bill is no excuse for imposing this rather capricious extra test, and I hope that in Committee this will go.
I also agree with what has been said about a permanent Court of Criminal Appeal. I see the advantage of the present one, which is constituted of judges who are normally sitting alone at first instance trying criminal cases, which is naturally a very valuable qualification for sitting as a Court of Criminal Appeal. At the same time, they are extremely busy people. They also constitute the Divisional Court and they have to go out on circuit and sit at first instance in the Queen's Bench Division. Though I have no doubt that the papers are most scrupulously read by the judges, and I do not doubt that the many applications for leave to appeal which they deal with very promptly on Mondays are given their best attention, I 1726 doubt whether the public get that impression, and that is a serious matter.
The procedure is extremely brisk, and I think that anyone who has experience of appearing in appeals in both the Court of Criminal Appeal and the Court of Appeal will have a very strong sense of the difference in the amount of time and elbow room which is at their disposal in the Court of Appeal. One really can develop an argument as fully as one feels justified in doing. One does not want to make any sort of imputations about the Court of Criminal Appeal, but I would say that the atmosphere there is a little bit more intense, and I think that that is a pity.
§ Mr. Bell
I hope I am not being guilty of an understatement, but the difficulty should be got over by the appointment of a permanent Court of Criminal Appeal.
I pass to the question of contempt. Here I think reform of the law is long overdue. I am very pleased indeed with the provisions which appear in the Bill. I should like to say a few words about the importance of what is being done because, in my opinion, the law of contempt has grown at quite an alarming rate in the last twenty or thirty years. It is a flexible weapon which allows the courts to extend their jurisdiction without any authority from Parliament and to exercise a remarkable degree of power over the individual.
I felt very strongly in agreement with the right hon. Member for Smethwick when he spoke about the powers exercised by judges, more or less in private, through the law of contempt. I think the time is overdue when Parliament should look at the law relating to ward-ships in Chancery and the general practice of that court in enforcing obedience to its views about infant wards through the law of contempt.
One has to remember, also, that a whole new jurisdiction has arisen through contempt in relation to criminal offences where Parliament has laid down a maximum penalty. If there is any case where a person commits a number of breaches of that law, he may be ordered by injunction of the courts not to go on doing it, and then punished by 1727 an indefinite period of imprisonment for contempt in disobeying the injunction, even though Parliament has laid down that the maximum penalty for a second and subsequent offence shall be only so much.
This is an extremely wide field where Parliamentary control over the criminal law can be completely undermined by judicial discretion. It is most important that a right of appeal should exist. I personally should be glad to see further statutory intervention in this field to limit the power of the court to extend its jurisdiction and alter the penalties proposed by Parliament through development of the law of contempt.
Lastly, I come to Clause 15, which deals with appeals in habeas corpus proceedings. I say once again how strongly I agree with what has been said in the debate. I cannot support the introduction of an appeal by the prosecution in habeas corpus: I say "the prosecution" and use a broad phrase which is not entirely accurate. This is an innovation in a basic constitutional procedure on which we have prided ourselves for centuries. I know that one can bring up arguments about it, but the whole essence of habeas corpus has been to incline to the liberty of the subject and, whatever risks are taken, they should be in favour of the liberty of the subject. To introduce now an appeal against the issue of an order is to my mind constitutionally indefensible. Once the writ has been ordered to run, it should not be recalled.
When I listened to the hon. and learned Member saying that it is a basic rule of our jurisprudence that there should be no appeal by the prosecution, I felt that unfortunately he was overstating the case, because in fact there are only too many such appeals nowadays. There is one on in another place at present, I believe. In fact, I rather suspect that the reason we had the pleasure of listening to the Solicitor-General this morning was precisely because there is an appeal against acquittal in another place. I have been depressed by the way in which this practice has grown in recent years.
I speak as a lawyer who is very proud of our law and its administration by the courts, but I have felt in recent years that the threat to freedom does 1728 not come any longer from the executive Government or bureaucrats, who in these days are an abused community and not allowed for a moment to inflate their egos without attack. It comes from the extension of jurisdiction by the judges in these ways, through contempt of court and inventing procedures for the prosecution to appeal.
The House will know that one has arisen within the last generation, appeal from magistrates' courts to the Divisional Court by the prosecution on the ground that the finding of innocence by the magistrates was perverse. That is a ground of appeal invented out of the inherent jurisdiction of the court, which never existed before. I submit that the contemporary threat to the freedom of the subject may lie in the courts and in the judges. This House must be extremely vigilant to protect the individual against threats to his liberty, from whatever direction they may come. I shall not be able to support Clause 15 (1) of the Bill. I earnestly hope that it will be taken out in Committee.
In conclusion, I think that, as a precaution, I had better repeat what I said at the beginning. I support and like this Bill, in spite of what I have been saying about it. It is a valuable step in the right direction, but it has these serious blemishes in it. I hope that it will be greatly changed in its course through this House.
§ 12.47 p.m.
§ Mr. Dingle Foot (Ipswich)
Everyone is agreed about the chief purposes of this Bill. Indeed, it is a rather remarkable thing that we have had to wait so long for its main provisions.
We take great pride in this country in the administration of the criminal law. Whenever we have occasion to compare our British way of life with that of less enlightened countries, we almost invariably dwell on the independence of judges and juries and upon the care which is taken in our criminal courts to ensure that, as far as is humanly possible, no innocent man shall ever be convicted. Yet it is one of the most difficult things in the world to obtain any reform of the criminal law. Take, for example, Clause 13, which provides for appeal in the case of criminal contempt. Ever since I can remember—and I have now quite a long forensic memory—this has been a matter of complaint.
1729 Except in cases of contempt in the face of the court, I have never heard anyone defend the existing law under which a person found guilty of a criminal as distinct from a civil contempt had no right of appeal. Yet, as we know, generations, indeed centuries, have gone by without any reform of the law in this respect. Similarly, there has been the position regarding appeals from the Divisional Court in criminal causes or matters. Again, it has been a constant matter of criticism, sometimes by the judges themselves—we all remember the observations of Lord Goddard on this matter—that there should be an appeal from the Divisional Court in civil proceedings, but none in criminal proceedings. Here again, we have had to wait for many years for the position to be changed.
I therefore agree with my right hon. Friend the Member for Smethwick (Mr. Gordon Walker) that we so rarely have the opportunity of dealing with these matters in Parliament that we ought to approach the provisions of the Bill with the greatest care. It may be that we shall not see a further Measure of reform such as this in our lifetime.
Most of us also welcome the abolition of the Attorney-General's fiat. I have not the slightest doubt that successive Attorneys-General have exercised the most anxious care over all the applications made to them for leave to appeal to the House of Lords. Nevertheless, it has happened on occasions that there has been the most acute difference of opinion as to whether the case involved a point of law of exceptional public importance or whether it was desirable in the public interest that an appeal should be brought to the House of Lords.
Let me remind the House of just two examples. I have always been a great admirer of the late Lord Birkenhead, who brought both to the law and to politics superlative gifts. He will always rank as one of the greatest occupants of the Woolsack. But he was a great deal criticised when, as Attorney-General, he refused his certificate for Sir Roger Casement to appeal to the House of Lords. No one would ever suggest that his decision was given otherwise than in good faith, but it could not have been easy for him to arrive at that decision when he himself had conducted the prosecution in both the courts below.
1730 The other example of which I remind the House was the case of The King v. Sims, which was decided by the Court of Criminal Appeal in 1946. It seemed to many of us who were interested in the criminal law that the decision of the court in that case extended the law in cases in which a man is charged with one offence and evidence is given tending to show that he has been guilty of other offences, too. But on that occasion the fiat was refused.
Precisely the same point came before the Judicial Committee of the Privy Council a year or two later in the case of Noor Mohamed, and the Judicial Committee said on that occasion that they could only regard the dicta in the Sims case as in some degree inconsistent with earlier dicta in the House of Lords, the Court of Crown Cases Reserved and even the Court of Criminal Appeal itself. There was a clear conflict, and eventually the fiat was granted in a case of this description, and this branch of the law, as you, Mr. Speaker, may possibly remember, was reviewed in the House of Lords in the case of Harris v. the Director of Public Prosecutions.
I therefore welcome the advances made in this Bill. Nevertheless, like other hon. and learned Members I can regard it with only modified rapture. It still preserves, albeit in a slightly altered form, what have always seemed to me to be two astonishing anomalies. The first, in which I find myself in entire agreement with the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) and the hon. Member for Buckinghamshire, South (Mr. Ronald Bell) is the difference between civil and criminal appeals. I have never understood why it is that a man who is likely to be deprived of his liberty, or it may be even of his life, should have a more restricted right of appeal than an unsuccessful litigant in civil proceedings. But so it is.
I believe that this differentiation is a sheer legacy from the past. A hundred years ago many of our ancestors were deeply shocked at the very notion of criminal appeals. They had a feeling that the verdict of a jury in a criminal case should be sacrosanct and should not be liable to be upset. It was not until the Adolf Beck case at the beginning of this century, and the commotion which 1731 that aroused, that public opinion became sufficiently moved, and the Court of Criminal Appeal was eventually established in 1907. But even now we still apparently cling to the idea that it should be more difficult for a man to appeal in criminal than in civil proceedings. That is one anomaly.
The second anomaly is the difference between the position of Her Majesty's subjects in this country and the position of Her Majesty's subjects in other parts of the Commonwealth. I am fully aware of the difficulties which confront the would-be appellant to the Privy Council from a conviction in a Colony or some other territory in the Commonwealth. I spend a large part of my working life meeting what is generally known as the rule in Dillet's case, which is the limitation which is placed by the Privy Council on criminal appeals. That limitation was expressed forty-six years ago by Lord Sumner, when he said:Misdirection as such, even irregularity as such, will not suffice. There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future.That is a very stringent test. But the fact remains that if a person convicted of a crime in an overseas territory can satisfy that test, he has a right of appeal which is denied to anyone convicted of a similar offence in this country.
Both these anomalies are preserved, albeit in a slightly different form, by this Bill. The would-be appellant in a criminal case will still have to satisfy conditions which do not apply in civil proceedings, and the test applied to criminal appeals in this country will still be quite different from that which is applied in the Privy Council.
I appreciate that in the other place the provisions of Clause 1 (2) received the approval not only of the Lord Chancellor but also of judges of the greatest eminence. It requires, I appreciate, a certain degree of temerity to differ from their conclusions. Nevertheless, I comfort myself with the knowledge that in some of what I am about to suggest I have the support of the Bar Council. 1732 Clause 1 (2) lays down a double test. Leave is not to be granted unless it is certified by the Court of Criminal Appeal that a point of law of general public importance is involved. I do not believe that that will be an easy test to apply. Indeed, I think that it is rather tautological to speak of "general public importance," and even among judges there must be differences of opinion as to what constitutes a point of law of "general public importance."
But then there is the still more astonishing provision that the certificate can be given only by the court below. The Lords of Appeal in Ordinary and the Lords Justices of Appeal are all judges of great experience and of proved capacity, but it not infrequently happens, as we all know, that they differ and that the House of Lords overrules the Court of Appeal. Indeed, it is by no means unknown for leave of appeal to be refused in the Court of Appeal and then granted by the Appeals Committee of the House of Lords.
That means that the civil appellant has a double chance. If he cannot get his leave from one court, he can go to the other. But under the Bill the convicted person, even though his life may be at stake, must be content with the decision of the lower court. It seems to me that it takes a great deal to justify such a differentiation as that.
The defence which was offered in the other place and which has been offered by the Solicitor-General this morning was that if the House of Lords could give leave to appeal in criminal cases, they would be swamped with applications. Speaking for myself, I cannot see that that is a valid argument. If it is right in principle that the certificate should be obtainable from the House of Lords as well as from the Court of Criminal Appeal, we ought not to resist the change simply on the grounds of convenience or of shortage of judicial time or manpower.
But is it correct that the House of Lords would be so impossibly overburdened? Here again, we have experience in this matter. We have the experience of the Privy Council. In the days, before 1949, when Indian appeals still came to the Privy Council, a considerable number of petitions were presented for leave to appeal. I have not been 1733 able to obtain the number exactly, but there were certainly well over a hundred each year, and "roughly over a hundred" was the figure mentioned this morning by the Solicitor-General as the number of applications made for the Attorney-General's fiat. In those days those petitions, although I admit that some of them were quite hopeless, came regularly before the Judicial Committee. Indeed, at one time almost every Monday used to be devoted to dealing with criminal petitions from India and from other parts of the Commonwealth.
The judges in the Privy Council did not find that an intolerable burden. It may have added to the volume of their work, but it was work which they were perfectly well able to do. If that could be done in the Privy Council, I find it very difficult to understand why similar work should not be discharged in the House of Lords. Therefore, speaking for myself, I do not believe that it is impossible from the administrative point of view to accord to persons in this country the same right of appeal to a court of last resort as is given to British citizens elsewhere.
I come to the next test, which is that it must appear to the Court of Criminal Appeal or to the House of Lords that the point is one which ought to be considered by that House. Here again, it is very difficult to see how this can be applied. We are not given any sort of criteria, and the judges are in effect being asked to express their own notions of public policy. That is something which, as a rule, they have been very reluctant to do. I think it was the late Mr. Justice Rigby Swift, whom many of us remember, who said that public policy is always a very dangerous horse to ride.
Here again, why do we need to depart from the sort of test laid down by Lord Sumner in Ibrahim's case in the Judicial Committee? If, to quote his words, there is something,which deprives the accused of the substance of fair trial and the protection of the law,why should he not be entitled to go to the House of Lords as much as to the Privy Council?
The learned Solicitor-General suggested this morning that this right of appeal should exist, or at any rate be invoked only in the sort of cases in which a large number of people may be involved. I 1734 find that reasoning very difficult to follow. Even in the wholly exceptional case, I would have thought that the man convicted should have the same right of appeal. The test, I suggest, is not whether certain judges think that a point of law of general public importance is involved or whether they or other judges are of opinion that the point is one which ought to be considered by the House of Lords. The question in a criminal case should be simply whether at the trial there has been some irregularity or misdirection which may have brought about a miscarriage of justice. If there is reason to suppose that that is so, I suggest that any appellant should have the right to go to the highest court in the land.
There is only one other thing that I want to say. I associate myself with what was said by my hon. and learned Friend the Member for Stoke Newington and Hackney, North about cases of habeas corpus. It is perfectly true, as the hon. Member for Buckinghamshire, South said a few moments ago, that we have a form of appeal by the prosecution from magistrates' courts, and I agree that that has been carried a very long way, perhaps too far. Nevertheless, leaving aside that exceptional procedure, we have always preserved the principle that if there is an acquittal that is final. We preserve that principle at least in this country. The matter of habeas corpus is analogous to that. We have for centuries stood upon the principle that if a man is freed, either by the verdict of a jury or by order of a judge, there can be no further appeal—he goes free. I do not believe that sufficient reason has been shown either in another place or in the speech of the Solicitor-General this morning why we should depart from that principle now.
§ 1.6 p.m.
§ Mr. Barnett Janner (Leicester, North-West)
I have listened very carefully to most of the debate. Many of the points have already been made very well by those who have spoken before me, and I intervene only because I happen to be, I believe, the only person who is taking part in the debate who has another aspect to put before the House from practical experience in dealing with the matters involved.
I am in practice as a solicitor and I think that the experience which solicitors have in the courts is one which the 1735 House may find of some interest in dealing with the Bill. The Bill in the main is a very good one and long overdue. I do not think that it is sufficiently well appreciated either by laymen or counsel, that every man who is charged with a criminal offence, whether it be large or small so far as the penalties are concerned, values his character highly. I have referred to this fact time after time in the House and it cannot be over-emphasised. Many people are subjected to the possibility of a very small sentence but, nevertheless they feel that sentence infinitely more than those who are hardened to sentences and whose feelings are not perhaps so much affected by long sentences.
In our experience, many people who have been convicted before and have had long sentences feel very keenly about being wrongly convicted of a minor offence. Rather than suffer a term of imprisonment which might be a very small one when compared with those that they have served before, they desire to appeal against the conviction. The average man considers that his liberty is not only of considerable importance to himself but that an attack upon his personal liberty is a matter of the greatest importance to the community. That is sometimes overlooked.
The test in deciding whether an appeal should be allowed is to be whether the point of law involved is of general public importance. What is the definition of "general public importance"? I may consider that it is of extreme general public importance that I, as a man in the street, a common man, have been accused and convicted of an offence when I consider it to be a wrong conviction. The common man may regard it as of extreme importance to the whole community.
Is it not because of the experiences which a single individual has suffered that we ultimately bring about changes in the law and outlook? It is fairly well known and accepted that no great change in human relationships has ever occurred except through one single person having commenced it somewhere. At the time when it was being first considered, wherever it may have been, the fact that it was of general public importance might never have crossed anyone's mind. Yet in many cases it 1736 was of such general importance that vast changes have been made in the law in consequence.
Those of us with experience of meeting the individuals affected by the matters which we were discussing professionally realise that they know no distinction between what is of personal importance to them and what is of general importance to the community. To the individual concerned, his case, whether it be civil or criminal, is the most important case in the world. Very often, the simple case of an individual ultimately leads to vast improvements in the approach of Parliament to public issues.
I am disturbed about what I consider to be the two hard conditions which have to be satisfied before an appeal will lie. Who is to decide the issue of general importance? It is the learned judge. He may have been quite out of touch with public opinion for a very considerable time. I say that intending no disrespect to the judges concerned. The learned judge's duties may have led him into special spheres to which he has given particular attention and in which he may be the highest authority in the country.
General public importance goes a little beyond that. Perhaps the phrase providing that the point of law must be one which should be considered by the House of Lords could be used to cover both tests. The provision I have in mind would be a general term to be used in a general sense. There certainly should not be two distinct provisions. It should not be necessary for the Divisional Court to have to decide on one point and also for the House of Lords to have to decide on something else.
Questions of expense, time, and very considerable anxiety are involved. I do not think that the average layman appreciates the amount of time legitimately spent by people who are liable to have their liberty taken from them in discussions with their lawyers—first, their solicitors, and later with counsel—and the expense involved to them. Above all, there is the anxiety. These things must be taken into consideration. We should accept as a first principle that a person is entitled to appeal unless there are strong grounds to the contrary. The onus should not be on the 1737 individual applying to appeal. The onus should be on the party saying that leave should be refused.
It is all very well for the argument to be advanced that it will involve expense and be a great imposition on the time of judges. If we were to accept such a view we should reduce the whole situation to one in which it could be argued that it would not be necessary to have any judges, or perhaps only a few. We should merely say, "We cannot be bothered with these things." That is what it would amount to. Nobody would dream of suggesting that there should not be an adequate judiciary. Nobody dreams of it in civil matters. There are so many civil cases before the courts that we just have to increase the number of judges, and that is that. I do not think that any one is justified in adopting a different approach when dealing with criminal cases.
I want to ask the Solicitor-General to consider a point for the Committee stage. It has been overlooked so far and may easily be overlooked later. I refer to the time within which an application to appeal can be made. I know what the hon. and learned Gentleman will say, but I hope that he will reconsider what I think is in his mind.
Clause 1 provides that the court is entitled to give leave, but Clause 2 does not satisfactorily deal with the length of time within which a man should be entitled to lodge an appeal. I remember the days when there were very strict rules about the length of time in which appeals could 'be lodged from lower courts. There were regulations about the length of notice which had to be given. It was ultimately appreciated that the time must be extended, because the individual was not in a position to make his decision within a short specified period.
Although it may seem a small detail, I strongly urge that consideration should be given to extend the time in Clause 2 from 7 days to 14 or 21 days. It certainly should not be less than 14 days. A person convicted has no time within 7 days to consider the point with his solicitor or counsel. He has not even time to consider in his own mind whether he should appeal. It is true that an application could be made to the court under the provisions of the 1738 Clause for an extension of time, but the fact remains that if the convicted person goes beyond seven days before lodging his appeal he does not know whether his application will be successful.
I have heard the arguments on other matters, one or two of which I want briefly to underline. There is the question of appeal. People, particularly those who have not been convicted before, and especially if they are kept in custody, do not understand the reasons for the delay in hearing their appeal. They just do not understand why they have to wait two or three months. Even if they are eventually found not guilty, the matter is hanging over their heads and they just cannot understand why so much time elapses. Consideration should 'be given to the setting up of a permanent criminal court of appeal as speedily as possible.
I turn now to the writ of habeas corpus. A practitioner like myself cannot understand why there should be an appeal against an order of habeas corpus. A man has obtained his liberty. A judge has said that the man is entitiled to be free. Is not the person who is in a position to grant the order sufficiently capable of forming his opinion on such a matter without his decision later being reversed?
The learned Solicitor-General smiles, but he knows as well as I do that judges differ from each other, and we have to approach a Bill like this in the knowledge that one court decides one way, the next court not infrequently reverses the decision, and the following court decides in favour of the first. These things happen, and it is that which is behind the whole of my plea. What right has anyone to suggest that if one judge, or one person who has been placed in authority to say whether a man should have his liberty and has given an order of habeas corpus, that person in authority should be overridden by others? Such a view goes against the grain.
The others may be right. They may form a different opinion which may be considered to be the right one, but I say that here we should adopt the principle that, a competent person having decided that a man's liberty should be given to him, he should not be overriden by anyone else. If one such person—and he 1739 is not just an ordinary individual, a layman, but a person competent in these matters—thinks that the man is entitled to his liberty, the man should be entitled to his liberty in spite of all others, whoever they may be, deciding that the competent person did not exercise the discretion as they themselves would have exercised it. We should not have any doubt on that at all.
Those are my reservations, and I trust that after giving, as I am sure he will, due consideration to what has been said by my hon. and right hon. Friends, and to what I feel as one coming into contact with these matters in a somewhat different capacity, the learned Solicitor-General will come to the conclusion that the Bill should be amended in the ways suggested.
§ 1.25 p.m.
§ Mr. Edward Gardner (Billericay)
I should like to draw the attention of the House to a very narrow but none the less important point, namely, the distinction between appeals against the refusal of the issue of a writ of habeas corpus in criminal cases and the same right of appeal in civil matters. Under the present law, in criminal matters, there is no appeal available to an applicant by right or by leave of the court against a refusal to issue a writ of habeas corpus, but in civil matters that right of appeal exists without any letters.
The law relating to applications for habeas corpus in civil matters will be materially unaffected by this Bill, but in criminal cases an applicant is given the opportunity to appeal only by leave of the court below or by the House of Lords. Although the restrictions of Clause 1 (2) are removed by Clause 15 (3), the fact remains that the applicant in a criminal case cannot appeal to a higher court as of right.
I concede that it may be possible to justify the imposition of the restrictive conditions in Clause 1 (2), namely, thatNo appeal shall lie … except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House.
§ Mr. Janner
But does the hon. Member think that if a point of law is at issue it should depend on whether it is of general public importance?
§ Mr. Gardner
I entirely agree that this is a very important point, and I particularly said only that it may be possible to justify those restrictions, but I do not at present attempt to argue that point as it is a separate issue. I point out that these restrictions do exist, and exist in relation to criminal cases generally where the merits of the case have been tested. Of course, an argument that could be raised by someone justifying the restrictions is that there must be some gate against the flood of frivolous appeals that might otherwise flow into the House of Lords. However, I am not dealing with that point at the moment. I am on the narrow point of the distinction between the right or opportunity to appeal that is available to an applicant in a criminal matter and to the applicant in a civil matter against a refusal of a writ of habeas corpus.
For example, proceedings under the Extradition Acts and the Fugitive Offenders Act are criminal proceedings, and, in consequence, where an applicant uses the common way of testing the validity of detention under either of those Acts, he frequently applies for a writ of habeas corpus. In that case, the merits of his case, of the allegations which are made against him, are quite untested. They are for trial, presumably, in the courts of another country. Furthermore, the consequences of his being extradited in this way might well be calamitous to him. Even so, if he wishes to appeal against the refusal of the issue of a writ of habeas corpus, he can only do so if he gets the leave of the court below.
§ Mr. Gardner
Unrestricted. There are no fetters upon the discretion of the court in exercising that power to give leave to appeal.
However, my point is that the applicant in this case has no right of appeal if the court decides against granting him leave to appeal. He has no further steps which he can take, and when one considers that if, for example, a deportation order were made against the same 1741 person by the Home Secretary, the proceedings would then be considered as civil proceedings and he would have as of right an ability to appeal against the refusal of habeas corpus, I would suggest that there is no rational basis for a distinction between the two classes of application, that is between an application under the Extradition or the Fugitive Offenders Acts and the application which would be dealt with under a deportation order.
I would suggest that the Bill as it stands ought to be amended so as to provide that appeals against refusals of applications for habeas corpus in matters arising under the Extradition Acts or the Fugitive Offenders Acts should be treated as if they were in respect of civil causes and not of criminal causes of matters.
§ 1.32 p.m.
§ Sir Frank Soskice (Newport)
The right hon. and learned Gentleman the Solicitor-General, in his most courteous and clear speech, introduced this Measure as one which might be appropriately described as a lawyers' paradise. I always thought the phrase was "lawyers' holiday" and it meant debates in which lawyers worked particularly hard. Lawyers in this debate have made what, everybody will agree I think, are valuable contributions, but, as my right hon. Friend the Member for Smethwick (Mr. Gordon Walker) said, this is a debate in which non-lawyers are most welcome, and we have had speeches from some hon. Members who are not members of either the barristers' or the solicitors' profession who have shown by their speeches the sense of urgency and sense of importance which is attached to this Bill—quite rightly. I hope I shall not be thought to be unduly partisan to my own side of the House if I single out for special mention the speech of my right hon. Friend the Member for Smethwich. It had a tone of sincerity and a power of analysis which a Bill of this sort merits.
In winding up the debate, I should like to dwell on only some few points which seemed to emerge as the debate went on. Clause 1 deals with the Attorney-General's fiat. It has departed from this House unwept, as it departed from another place unwept. I do not seek to resuscitate it. There is only one 1742 thing I should like to say about the Attorney-General's fiat.
Having held that office myself, albeit for a limited period of some months, having also been privileged to work very closely indeed as Solicitor-General with a very great Attorney-General, Lord Shawcross, I find it very difficult to accept the view that having to act in one's own cause, as it were, in giving or refusing a fiat imposes any difficulty or strain upon the holder of the office. I do not believe any Attorney-General finds such difficulty in looking at the question, whether he should give or refuse his fiat, with complete objectivity. I do not think that imposes any difficulty in his way. I certainly found no difficulty, and I am quite sure Lord Shawcross found no difficulty, and, if I may say so, I am sure that that applies to the present holder of the office.
However, I do accept the argument which is put forward in favour of the change, that justice should not only be done but be manifestly seen to be done, and I understand that it may seem difficult to comprehend, to persons not actually in the Law Officers' Department, that the Attorney-General, who may have conducted a prosecution, should be the Officer of the Government who is called upon thereafter to decide whether the defendant whom he may have successfully prosecuted should have leave to appeal to the House of Lords.
The test which the Attorney-General had to apply certainly was a difficult test. That does not make it a bad test. After all, if one holds that office one realises that one will be confronted with difficult problems. The test of exceptional public importance is one of difficulty. But, I think, the really difficult test is the test of its being in the public interest that there should be a further appeal. The test which is now substituted and which is to be applied by the court before whom the matter comes is that the point of law should be one of general public importance. Hon. Members in this debate have expressed the view that that is a difficult formula. It is a difficult concept to apply in any given circumstances.
Again I say it is no doubt difficult, but it is one which the court has been frequently asked to apply when, for example, leave is asked to appeal from 1743 the Court of Appeal to the House of Lords in civil matters. That is one of the considerations which the Court of Appeal does quite often have to take into account in deciding whether to give or withhold leave. I do not shrink at all myself from the idea that learned judges should be called upon to consider that formula in deciding whether or not they should give leave. Furthermore, I myself do not feel so shocked at the idea that it should be the court below, as it is described by the Clause, which should be called upon to answer the question as to whether a point of law of general public importance is involved. After all, it is that court which has just tried the case, and it is that court which has had to address its mind to the actual point of law involved.
I would have thought myself that there was wisdom in saying that if a mind has to direct itself to the question whether a point of law of general public importance is involved in the decision it should be, after all, the mind of the learned judges who, sitting in the Appeal Court, have just heard the point argued. After all, they will know and they will have considered its ramifications and will be fully conscious of the general application of the point involved. So I do not myself feel that there is any difficulty about that.
I do, however, feel the strength of the point strongly urged by my hon. and learned Friend the Member for Ipswich (Mr. Foot) that one test which is imposed, namely, that the point is one which ought to be considered by the House of Lords, is a test which involves the consideration of what he broadly described as the public interest Learned judges have for many years past felt reluctant to undertake the task of indicating in a given case what their own view is as to where the public interest lies. That reluctance is very understandable, and the view has been held that it is not fair to place upon judges sitting in courts the duty of formulating views and expressing general principles affecting the public interest. It does seem to me that the test which is embodied in Clause 1 (2) does now, to some extent at any rate, require learned judges to address their minds to the public interest.
1744 One of the advantages of the Attorney-General's fiat was that, after all, he was an Officer of Government, and he was, broadly, the person who, if the public interest entered into it at all, might have been thought appropriate to be required to consider whether in the light of the broad public interest his fiat should go or be refused.
It may be—and this is a point of view which my hon. and learned Friend the Member for Ipswich might feel disposed to come some way towards accepting—that it would be a way out of the difficulty to apply some formula of the kind at present applied when special leave is asked in criminal cases in the Privy Council. It provides a comparatively narrow gate through which the applicant for leave to appeal must pass.
The broad question is whether it is in principle right that an appellant in a criminal case should find himself faced with a restriction to his right of appeal which is not in the way of an appellant in a civil case.
Hon. Members on both sides of the House feel that, on the whole, it would be wrong that there should be that distinction. The right hon. and learned Gentleman the Solicitor-General, and the Government accepting the responsibility of the Bill, accept that it is right in principle that there should be that distinction, and that view was also accepted in another place. I have the misfortune to differ somewhat on this non-party question with my hon. Friends. I feel that it is right that there should be a distinction. There always has been, though that is not necessarily a reason. It may be a reason for the opposite view.
The solid reason which justifies a distinction is, in my view, the consideration that criminal justice, as the Solicitor-General has expressed it, should be final and swift. I have always felt that that is right. One should regard trial in a criminal court as an ordeal. Reputation, freedom and, indeed, life may be at stake, and I have always thought that it is essential, in a civilised community, when one is faced with the possibility of punishment for a breach of the criminal law, that at the earliest possible moment one should know one's final fate. The principle of our criminal jurisdiction as embodied in the Criminal 1745 Appeal Act, 1907, has for some fifty years been that there should be a one-tier appeal in criminal cases. The accused person after all will have had the opportunity of presenting his appeal to the Court of Criminal Appeal.
§ Mr. Ronald Bell
The right hon. and learned Gentleman is not quite right. There is no appeal as of right in a criminal matter from a verdict of the jury.
§ Sir F. Soskice
I agree. On a point of law there is appeal on right, on a point of fact by leave, and where the appellant qualifies he will have had the advantage of presenting his case to the Court of Criminal Appeal. It has been for fifty years past the concept that there should be a one-tier appeal in criminal cases. I have always thought that the basis of that point of view was that criminal justice should be swift and final.
My right hon. Friend the Member for Smethwick mentioned the case of Chessman in the United States. Public opinion in the United States was perhaps not as shocked as one might have hoped about the sequence of events that led finally to Chessman's execution. In this country, I think that the public would be quite horrified as to 99 per cent. of public opinion if anything of that sort were possible here. I am not suggesting for a moment that it will be if the distinction is abolished between appeals in criminal and in civil cases, but at any rate it will be likely to happen that there will be more possibility of delay, though of course not so inordinate as that, than there is under the present system where it is only in a limited class of case, where a matter has already been considered by the Criminal Court of Appeal, that there can be a final appeal to the House of Lords. I would have preferred to have left the matter in that situation.
I cordially agree with my right hon. Friend the Member for Smethwick and other hon. Members that the consideration that the House of Lords may be cluttered up with frivolous appeals should carry no weight at all. I believe entirely with my right hon. Friend that if there are appeals which ought in justice to be heard, the manpower of the judicial bench should be so expanded as to be able to cope with those appeals. The consideration of 1746 convenience—and that is what it really comes to—ought not to bear any weight at all if it is a fact that justice requires that more appeals should be heard than the House of Lords as at present constituted can deal with.
I wholly discount that consideration. I re-emphasise my personal conviction that we have rightly framed our legislation, and the Government have rightly reflected the principle in the terms of the Bill, upon the basis that in civil cases delay does not matter so much. In criminal cases it matters tremendously. My right hon. Friend the Member for Smethwick says that that consideration would apply only in capital cases. I cannot agree with him there.
Let us take the case of a person charged with or convicted of a comparatively trifling offence which reflects on his moral character. It may be a comparatively small offences or one of those unfortunate sex offences which are committed from time to time. That unfortunate person is in a state of acute agony until he knows how he is ultimately to fare. If the conviction stands, he runs the risk of being an outcast of society. Perhaps we go too far in that direction, but that is the position at present as public opinion forms itself. In any case, conviction by a criminal court involves the consequence of opprobium that may hang over his name for the rest of his life. He should have the earliest possible opportunity of knowing what his final fate is to be.
I do not know whether hon. Members who practise as barristers and solicitors will agree, but I think that criminal cases broadly speaking—I do not say in every case—involve issues of fact and comparatively simple principles of law. Generally speaking, they do not involve the kind of intricate analyses of legal principle which constantly have to be undertaken for the purposes of the decision of an appeal in a civil case.
A man is said to have stolen, and that depends on simple facts which can be analysed by the judge and jury. No intricate point of law is likely to be involved. If the man is said to have committed manslaughter, the same applies, and so it is with violent assault or a sex crime. No principle of law is involved in these cases and an appeal to a court well versed in that kind of case and that sort of consideration, 1747 namely the Court of Criminal Appeal, should result in justice being done. It would be only in a few cases indeed that a point of law emerges which requires further consideration in the House of Lords.
I therefore sum up my views on the first and, in a sense, the major point with which the Bill deals. I do not seek to recall the Attorney-General's fiat for the limited reason which I have given, but I seek and ask the Government to maintain the existing distinction that is drawn between the comparatively free right of appeal in civil cases and the much more restricted form of appeal in criminal cases.
My hon. and learned Friend the Member for Ipswich mentioned two cases, one in 1946, the Sims case, in respect of which he felt that the decision might have been different. I am sure that there was a very good defence for the decision, but I do not recall the circumstances. I recall the decision, of course, and I am sure that if I recalled the circumstances I should find that there was a very good defence for the decision of my former chief, the then Attorney-General.
§ The Solicitor-General
I am told that there was no application for a certificate by or on behalf of Sims at that time. There was an application two and a half years out of time. This would certainly bear out the point that the right hon. and learned Member is making.
§ Sir F. Soskice
I am extremely grateful for that intervention. I knew perfectly well that there must have been an adequate reason and a complete defence for the decision. I hope that the House will not think that the hon. and learned Gentleman and I are becoming too clanny on this matter.
§ Mr. Foot
Perhaps my right hon. and learned Friend the Member for Newport (Sir F. Soskice) will forgive my intervening, since I was responsible for raising the matter. It was certainly my understanding at the time from counsel who were engaged for the defence that the application was made and was refused. I should like to make this point clear. I was not making any attack upon the Attorney-General concerned—nothing was further from my mind—but was merely referring to the case as an 1748 illustration and comparing it with what happened in Noor Mohamed's case to show how there may be a difference of opinion on these matters.
§ Sir F. Soskice
So long as the complete wisdom of the decision in question given by the then Attorney-General has been fully vindicated, I am content to leave the case of King against Sims.
I should like to say a word with regard to the argument that there should be something in the nature of a permanent Court of Criminal Appeal. I shall make only this one comment, and I hope that the judges who sit in that court will not think that I am guilty of the least disrespect in making it. It would be unfortunate if it were ever the case that the impression got around that the court was in any sense overburdened, and if there were any risk of that I would wholly assent to the proposal that there should be something in the nature of more time and more facilities made available for the purpose of disposing of criminal appeals. The Court of Criminal Appeal is in a sense the pivot of our judicial arrangements so far as criminal jurisdiction is concerned, and it is essential that everything should be done, including, if necessary, the holding of some permanent court, to make certain that there is ample time for the disposal of what is, after all, business of the greatest importance to the liberty of the subject.
I now pass to the question of contempt. I share in the general commendations which have been expressed on this matter from both sides of the House. As has already been said, the Government have nicely drawn the balance between the claims of a free Press and the danger that individual cases may arise in which justice may be hampered if the Press is too free in its comments with regard to it. I should have thought that in Clause 13 the Government have drawn the line in the right place. I say no more about that.
However, I venture to make this point on the question of appeals in cases of contempt of court. In another place the present Lord Chief Justice, and the former Lord Chief Justice, Lord Goddard, and Lord Simonds, a former Lord Chancellor, all expressed doubt as to the wisdom of an appeal in respect 1749 of contempt in the face of the court. Those learned judges are judges whose collective wisdom and experience is obviously enormous and is entitled to the very greatest respect on a matter of this sort. Speaking for myself, I confess that I have very considerable sympathy for their point of view.
The point of view as they express it is, after all, this. One should be very careful not in any sense to undermine the dignity of the judge in his own court. If there were any real risk that judges might make a harsh use of the power which they have to punish in the case of contempt in the face of the court—I think it is the rotten eggs type of case, to use the term which has been used today; the Solicitor-General described as the tomato type of case—or if there had been any complaint, one might be induced to take a different view. But, speaking for myself, I have never heard of any suggestion that a judge has been a little too rigorous in the exercise of his powers. It seems to me that we ought to be able to trust judges in the case of insult to them in their court or interference with their proceedings by behaviour which amounts to a contempt of court to use their powers wisely and humanely, as they do now and as they have done for long past. I feel considerable reservations with regard to the granting of an appeal in the case of contempt in the face of the court, and my doubts are based upon the arguments used in the speeches on this topic by those noble Lords in another place.
There is one final matter that I should like to mention among those which I selected for the purpose of this winding-up speech, and that is one which has caused some considerable feeling among hon. Members on both sides of the House who have considered it. In the case of appeals in habeas corpus proceedings, I understand the present position to be that in accordance with the decision of the Home Secretary against O'Brien, which was decided in the House of Lords in 1923, there was no appeal against a release in civil cases. The Bill, in Clause 15 (1) gives an appeal to the prosecutor in criminal cases of habeas corpus and, as a matter of tidiness and logic, in those cases extends the right of appeal in the case of a release also to civil cases, although it makes this odd distinction that in a civil case the 1750 released person will not be liable to be detained again even if the appeal against his release is successfully argued but that in the case of a criminal case he will be liable to such detention if his release is over-set in the appeal court.
I feel very much, as did my hon. and learned Friend the Member for Ipswich, that if a person is acquitted by a jury or set at liberty by the order of a judge, let him be as guilty as he may be, it has always been one of the sacred tenets, as I understand it, of our criminal law that he should be treated thereafter as a free man until he commits another offence.
We have, I suppose, from our very earliest years become accustomed to the idea that it is better that 100 guilty men should go free than that one innocent man should be convicted, and we have always firmly adhered to the idea that if one has committed a crime but is in the fortunate position that by some accident or other, some concatenation of circumstances or another, it is impossible to bring that crime home to one, one is entitled to walk out of the dock and proclaim that one is as innocent as the dawn and hold one's head up again as if one is the most honourable man in the kingdom.
That may be a concept which does not wholly correspond to reality, but it is a very valuable concept and is absolutely the foundation of our whole judicial thinking and our whole approach to the criminal law. The suggestion has been made in the past that the Court of Criminal Appeal, for example, should be allowed to order a new trial in a case in which it thinks there was an irregularity in the first trial but where there was clearly a case of guilt which might have been established. I have always deplored that sort of suggestion and set my face against it. Equally, here I cannot help feeling strongly that, as my right hon. Friend and other hon. Members have said in the debate, if one is fortunate enough to be set at liberty, we should let that be final and nobody should thereafter challenge that order. One may have been fortunate to obtain it, and it may have been one which, in the circumstances, had more been known, ought not to have been made, but one has been lucky enough to get it. In those 1751 circumstances, one ought, in my submission to the House, not again to be put in jeopardy of being recommitted to custody by an appeal against release.
I would say that that should be equally the case in civil cases and in criminal cases. I would press upon the Government that they should reconsider their attitude to this matter. I heard no adequate justification, as it seemed to me, for the change in the speech of the right hon. and learned Gentleman, nor in my reading of the debates in another place did I see any justification which satisfied me, and there was obviously none which satisfied any hon. Member here who has spoken on that topic.
I hope that the Solicitor-General will consider earnestly whether, in his view, there really is a case for a change. Should we not adhere to the old principle that, lucky or not, if one is set at liberty by an order of a judge nobody should question that order? As my right hon. Friend pointed out, in any case it is an odd anomaly that if one is set at liberty by order of a judge alone his order cannot be challenged, whereas if one is set at liberty by another court other than a judge alone one may find oneself recommitted to custody in the event of the order being overset on appeal. That is a matter of basic principle. It is not merely a tidying-up change which can be accepted without minute and anxious scrutiny. I hope that the hon. and learned Gentleman will accept that point of view.
These are the considerations that I would put forward on Second Reading. I join with those who have congratulated the hon. and learned Gentleman in having introduced it. He introduced it, if I may say so, felicitously and clearly. We have had a very useful debate in its exploration of these highly technical matters. We shall want to look at them closely in Committee. This is a useful Bill and marks a great and important change in our law. These changes are not often made, in the nature of things. I hope that the House will give the Bill a Second Reading.
§ 2.1 p.m.
§ The Solicitor-General
I will, with the leave of the House, briefly reply to the debate. I do not propose to weary the House by a recapitulation of arguments 1752 which have been deployed before. I thank the right hon. and learned Member for Newport (Sir F. Soskice) very much for his kind references, not only to the Bill but also to me; and indeed I thank all right hon. and hon. Members who have spoken for what they have said about the Bill.
I make no complaint that although—without exception, I believe—they welcomed this Bill enthusiastically, they then proceeded to devote their speeches to criticising its provisions. I know that the Bill is welcomed as a whole, and it is only natural—and indeed the debate would be quite unconstructive unless it it were so—that detailed scrutiny should be devoted to those provisions which can be called in question.
As I find myself largely in agreement with the right hon. and learned Gentleman, I do not propose to deal with those matters, even if they are matters of controversy, on which I deployed arguments in my opening speech, even on Clause 1, particularly as his view of Clause 1 did not entirely coincide with many views expressed in the debate.
But one point has been raised in this House—and raised seriously for the first time—on which it might be helpful if I say something before the Bill goes to Committee. That is on the question of appeal in habeas corpus cases. I feel apologetic that I did not devote much time to it in my opening speech, but it was not a matter which excited much comment in another place. It is obviously a subject to which this House will desire to devote considerable consideration. It might help if, first of all, I made clear what is the difference between a criminal contempt and a civil contempt. An application is criminal—
§ The Solicitor-General
I am much obliged to my hon. Friend. I was referring to habeas corpus proceedings. An application in habeas corpus proceedings for a writ of habeas corpus is criminal if it constitutes a criminal cause or matter, as is found in Clause 17 (2). That does not really tell one what sort of proceedings are criminal causes or matters for purposes of habeas corpus. They fall 1753 into two categories. The first is where the application is made in relation to proceedings in which the applicant may be punished for an offence by any English or by a foreign court, and the second is where the applicant is in custody under a sentence passed in criminal proceedings.
The other habeas corpus proceedings are civil. The main categories are those relating to children, those whom we until recently called mental defectives, and the sort of cases which concerned the 18B detainees during the war. Having said that, I shall compare how the appeal works under the present law and how it will work under this Bill when it becomes an Act. Let us take, first, civil habeas corpus proceedings. They could either go to a judge in chambers or to a judge in his court, or to a Divisional Court, or, on appeal, to the Court of Appeal. In the case of a judge in chambers there is an appeal by the defendant only—I use that term for the person whose liberty is concerned—to the Divisional Court; that is to say, under present law the defendant only can appeal to the Divisional Court.
That is by virtue of the case which the right hon. and learned Gentleman mentioned, the Home Secretary v. O'Brien, which said that where there was, in a civil case, a grant of the writ, there was no appeal from it. I think I am right in saying that it is subject to exception, in that it probably does not apply to custody of infants. Under this Bill both sides will be able to appeal to the Divisional Court.
An application can also go to a judge in court. Again, only the defendant now has an appeal to the Court of Appeal, but under the Bill both sides will have an appeal to the Court of Appeal. If the application is made to the Divisional Court, the defendant only, for the same reason, has an appeal to the Court of Appeal; under the Bill both sides will have an appeal to the Court of Appeal. In the case of appeals to the Court of Appeal the defendant only, at the moment, with leave, can appeal to the House of Lords; under the Bill, both sides, with leave without conditions, will be able to appeal to the House of Lords.
On the other hand, in criminal habeas corpus proceedings application can be made to a single judge and there 1754 is no appeal under the present law. Indeed, under the Bill there will be no appeal, because a single judge cannot refuse an application. If he grants an application, then in that case the prosecutor—if I may use the term, for it is the one used in the Bill—cannot appeal. The reason why that case is exceptional is because the single judge will not grant a writ except in the clearest cases. If there is any doubt in a case, he will refer it to the Divisional Court. Instead of going to the single judge the applicant may go direct to the Divisional Court, or his application may go on reference by the single judge to the Divisional Court. At the moment there is no appeal; under the Bill there will be a right of appeal by both sides, with leave, to the House of Lords.
I now come to examine the reason for the changes which have been made by the Bill. I take first civil habeas corpus applications. This is the only respect in which any existing right—that is, not to be subject to further appeal by the prosecutor—is taken away. The Bill reverses the decision in the case of the Home Secretary v. O'Brien. But it must not be thought that that affects the liberty of the subject. As the right hon. and learned Member for Newport pointed out, under Clause 15 (4) it is only as provided by Clause 5 that a successful appeal may result in a re-arrest or re-detention of the subject of the proceedings, and Clause 5 applies only in criminal appeals.
Therefore, the right hon. Member tot Smethwick (Mr. Gordon Walker) was labouring under a misapprehension when he said that the reversal of the decision in that case affected the liberty of the subject. We must remember that what we are concerned with is an appeal on a point of law and, if it is right for the defendant to be able to appeal in order to clarify the law, there can be no conceivable reason why the prosecutor should not equally have an appeal, provided, as we have seen, that it does not imply the re-detention of the subject of the application.
§ Mr. Gordon Walker
I was referring to re-detention in criminal cases. That is what horrified me. I take it that the hon. and learned Gentleman is coming to that.
§ The Solicitor-General
Yes. I have made it plain, I hope, that we are not taking away any existing rights in so far as we have reversed that decision. That does not affect the liberty of the subject and that is the only existing right which we are changing.
Now I come to criminal habeas corpus applications. At present, there is no appeal by either side. The Bill provides an appeal for the first time. In a civil application, there is no objection to conferring a right of appeal on the prosecutor, because under subsection (4) the applicant for habeas corpus cannot be detained again if the decision on appeal goes against him. But it would be inappropriate to confer such an immunity in criminal cases.
This is not a new provision. Clause 5, which is the only Clause by which re-detention can take place by virtue of Clause 15 (4), is not new law. The power conferred by Clause 5 (1) already exists in Section 16 (2) of the Criminal Justice Act, 1925 in relation to applications by the prosecutor for the Attorney-General's certificate for an appeal against a decision of the Court of Criminal Appeal.
I disagree with those hon. Members who have said that it is an innovation in our law to give the prosecutor a right to appeal. It is true that there is no appeal from the verdict of acquittal by a jury. But there are countless cases in which the prosecutor has the right of appeal, countless cases which come before the Divisional Court on appeal from the magistrates' court. They are cases which may involve imprisonment. Then there are the cases of appeal from a decision of acquittal by the Court of Criminal Appeal to the House of Lords, at present on the Attorney-General's fiat, and, under the Bill, under Clause 1 (1).
What we are doing in allowing an appeal in criminal causes by the prosecutor is not anything new; and in providing for redetention in such cases, in the case of a successful appeal, again we are not doing anything new. What the Bill does is to make clear what is implicit in the law at the moment but not completely clear, that there is no power to re-detain in the case of a successful appeal by the prosecutor except in those cases where the court below has ordered either the detention or the 1756 release on bail of the defendant pending appeal. That was the provision in Clause 5 to which I drew attention. It is only when there is an order by the court below for either detention pending appeal or release on bail pending appeal that there is any right to re-arrest. In all the other cases, the case falls under the provisions of Clause 15 (4).
That limited power in Clause 5—that re-enactment, in effect, of an existing power—is particularly necessary in habeas corpus appeals. The defendant may be a person who is the subject of extradition proceedings and in respect of whom the Government consequently has treaty obligations to the requisitioning State. The defendant may be a person who is compulsorily detained for treatment under the Mental Health Act after going before the courts in criminal proceedings and who cannot be discharged without danger to others—for example, a psychopath. It is that type of case which we have to bear in mind. Without arguing the case further, I felt that it would be helpful to the House before the Bill goes to Committee if I put this matter in its setting, because it has not been raised before and, in our view, it does not constitute the constitutional, cataclysmic alteration which the right hon. Gentleman and other hon. Members suggested.
§ Mr. Gordon Walker
I was basing myself on what the Lord Chancellor said, which was:This right of appeal by either side in criminal cases is something entirely new …"—[OFFICIAL REPORT, House of Lords, 24th March, 1960; Vol. 222, c. 257.]That seems to conflict with what the hon. and learned Gentleman is saying.
§ The Solicitor-General
It does not conflict. The right of appeal in criminal cases for habeas corpus by either side is entirely new. It is entirely new to give that right to the applicant and it is entirely new to give it to the person who is detaining the applicant. On both sides it is new. What we are concerned with is the power to re-arrest on a successful appeal by the person detaining the original applicant.
I do not think that the House will want me to go into the other matters which were raised. The ground has been fully and usefully covered with a view to discussion in Committee. In 1757 view of the pleasant things which were said at the beginning by every hon. Member except my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell)—
§ Mr. Ronald Bell
My hon. and learned Friend is mistaken. I said pleasant things at the beginning and at the end. It was in that respect that I differed from other hon. Members.
§ The Solicitor-General
I am grateful to my hon. Friend. In view of that, it suffices for me to commend the Bill to the House.
§ Mr. Janner
Will the hon. and learned Gentleman comment on the point that I raised on the time for lodging an appeal? This is an important matter. I said that I thought that seven days were totally inadequate.
§ The Solicitor-General
I do not dissent in any way from the hon. Member's estimate of the importance of the point, but it seems to me something which can be fruitfully discussed in Committee.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).