HC Deb 22 July 1960 vol 627 cc1014-8

3.9 p.m.

Mr. Eric Fletcher (Islington, East)

I beg to move, in page 1, line 15, after "by" to insert "any one judge of".

As hon. Members will recall, this Clause makes a considerable difference to the rights of appeal to the other place in criminal cases. Hitherto appeals to the other place have been available only with the fiat of the Attorney-General, and we are all very glad that that procedure, with all its anomalies, is now to come to an end and is to be replaced, although it will be replaced by something which, though better than the existing system, is nothing like as perfect as we hoped and sought to achieve in Committee.

In future, an appeal to the House of Lords in criminal cases will lie subject to two conditions. First, it will be subject to a certificate being granted by the court below that a point of law of general public importance is involved in the decision; and secondly, if it then appears either to that court or the House of Lords that the point is one which ought to be considered by that House. The substitution of the words "of general public importance" is an improvement on the existing phrase "exceptional public importance" as the condition which had to be satisfied to enable the Attorney-General to give his fiat. Nevertheless, we feel that there are a number of cases in which an appeal ought to be taken to the House of Lords, but in which that will not be available unless there is some improvement in the provisions of this subsection.

It would be wrong for me to traverse what was said during the Committee stage, when the Committee came to certain decisions. There was, however, one important point left open as a result of those debates and on which the right hon. and learned Gentleman offered to reflect and give the benefit of his guidance at this stage. The object, therefore, of this Amendment is to enable the certificate that a point of law of general public importance is involved to be granted, not necessarily by the whole court, but by any one judge of that court. Although it is not a statutory requirement, the Court of Criminal Appeal, in fact, in the overwhelming majority of cases, gives a unanimous decision. It is only the very exceptional case in which there is revealed in the judgment of the Court of Appeal a majority point of view and a minority point of view. That is a convention which has grown up and from which there is only an occasional departure.

Nevertheless, it would not seem unreasonable to assume that there must be cases in the Court of Criminal Appeal in which there is a division of opinion, just as there is in civil cases in the Court of Appeal or any other appellate judicial body. It seems to us that it would be an additional and valuable safeguard, in criminal cases where there is a division of opinion in the Court of Criminal Appeal, if any one of the judges of that court should be able to certify that a point of law of general public importance was involved. If that were in fact the case, and if any one judge in that case, although in a minority of three or five, thought that a point of law of sufficient general public importance was involved, it seems to us that that is the sort of case in which there should be a right of appeal to the House of Lords. I hope the Amendment will be acceptable and will be incorporated in the Clause.

3.15 p.m.

The Attorney-General (Sir Reginald Manningham-Buller)

I promised during our discussion in Committee that I would consider this point. I have done so, and I must advise the House not to accept the Amendment. I think that the hon. Member for Islington, East (Mr. Fletcher) was rather thinking that, in some respects, the existing procedure would continue, whereby an interval of time occurs between the determination of the case in the Court of Criminal Appeal and the application for the certificate.

I hope and trust that, in future, the practice in the vast majority of cases will resemble that in the Court of Appeal where, when leave is sought for an appeal to the House of Lords, it is done so immediately and before the members of that court who are fully familiar with the arguments on the points of law that have taken place before that court. I do not think that it would be an improvement to replace the decision of the Court of Criminal Appeal as to whether there was a point of law of general public importance, and as to whether it was desirable that there should be an appeal to the House of Lords, by the decision of a single judge.

I think that it would be disadvantageous in this respect, too. The Amendment appears to contemplate that if the decision of one judge was adverse to the applicant it would be possible to go round to all the members of the court, one after the other, to try to get their consent. I believe it to be much better to leave this to the decision of the court.

I do not entirely agree with the hon. Gentleman's observations about majority and minority views. He is quite right, of course, in saying that the normal custom in the Court of Criminal Appeal is to give one judgment. That judgment having been given, the first question that would arise in an application for leave I appeal to the House of Lords is whether that judgment, however it has gone, involves a point of law. The question is whether, quite apart from the merits of the decision, the point of law is of general public importance.

I should have thought that it would be highly unlikely that there would be any division of view between members of the court on a matter of that sort, and it is of advantage that the application should be made, if possible, straight away to that court. Also, when it is a question of taking the point to the highest tribunal in the land, it is a matter for the court to say whether or not the point is one that ought to be considered by the House of Lords. I am keeping my remarks to the shortest possible compass. I hope that the hon. Gentleman will not think that I am in any way discourteous in doing so. I can assure him I have given consideration to this matter, and we do not think that this Amendment would be an improvement of the Bill.

Mr. Fletcher

Has the right hon. and learned Gentleman borne in mind the fact that this proposal has the support of the Lord Chief Justice who, when the Bill was being debated in another place, expressed the hope that this provision would be embodied in it?

The Attorney-General

I do not think that the Lord Chief Justice said that. The hon. Gentleman cannot recite the Lord Chief Justice's words nor can I, but my impression, and that is all I can give, is that the Lord Chief Justice was really indicating that if one member of the three said that in his view the point was of sufficient importance to warrant it going to the House of Lords—I take it as shortly as I can—it was highly unlikely that the others would feel strongly enough to the contrary view to dissent. That is a practice that the court may adopt, and probably will, but I do not think that the Lord Chief Justice went any where near suggesting an Amendment to the Bill that would enable an applicant to go from one judge to another to seek consent.

Mr. Barnett Janner (Leicester, North-West)

I hope that that is not the Attorney-General's last word, because the very argument he himself puts forward is an argument in favour of the Amendment. He says that it is hardly likely that any court, sitting as a court of appeal, would have a dissentient yoke, but would ultimately come to a conclusion that met with the approval of ill the judges there. If that is the case, it means that one judge will feel so strongly that he is right that he will be prepared to dissent from the majority view. I think that the benefit of the doubt to the applicant when one of the learned judges feels so strongly that he is not prepared to participate in the majority decision. I hope that in those circumstances the Attorney-General realises that it is very unfair to the person concerned who is asking for this leave that a learned judge of high academic standing, high in his profession, and sitting with colleagues, is so determined about the matter that he is not prepared to allow his particular point of view to be flurried by the points of view of others.

In those circumstances, I think it shows that the decision that the Attorney-General has come to is con trary to what ought to be done in a case of this description.

Amendment negatived.