§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I beg to move, in page 3, line 22, to leave out Clause 5.
§ Mr. Deputy-Speaker
I understand that it would be convenient to discuss with this Amendment the Amendment in page 3, line 40, to leave out subsection (4), and the Amendments in Clause 15, page 10, line 12, to leave out from beginning to "an" in line 14, and in line 16, to leave out from "and" to "to" in line 18.
§ Mr. Weitzman
As you say, Mr. Deputy-Speaker, it would be convenient to take this Amendment with the other Amendments which you have specified.
The effect of this Amendment and the two Amendments to Clause 15 will be this. An appeal would lie in any proceedings upon an application for habeas corpus, whether civil or criminal, against an order for the release of a person restrained, as well as against the refusal of such an order, but the right of a person restrained to be discharged would not be affected by the decision on appeal. That would make the position the same in criminal applications as in civil applications.
In Committee we sought to limit the right of appeal. We pressed the view that there should be no such right against an order for the release of a person restrained. We failed to convince the Attorney-General, and I hope that we will now give more sympathetic consideration to these Amendments.
I hope in particular that the right hon. and learned Gentleman will recognise that this Amendment will meet the objection that he put forward in Committee when he said:If the substance of the Amendment were accepted, one might arrive at a very unsatisfactory position as a result a the Court of Appeal deciding an important point of law in favour of an applicant for the writ. The result would be unsatisfactory, because it would be that that point could never be canvassed before the House of Lords, for the decision of the Court of Appeal would be binding both on itself and on the courts below it, so that whenever that point arose again, 1019 it would inevitably be decided in favour of the applicant and no appeal would lie."—[OFFICIAL REPORT, Standing Committee A, 14th July, 1960; c. 87.]That objection would disappear.
It is part of the law that the legality of the discharge of a person restrained upon the ground of a writ of habeas corpus, whether it is civil or criminal—I emphasise that—can never be brought into question. No appeal can be entertained against it and it cannot be reversed. I referred the Committee when we discussed this matter to the decision in Cox v. Hakes and to the O'Brien case which established that principle. It was said by the Attorney-General in Committee that the decision in the O'Brien case was in a narrow field. He also said that there was no question of any sacred principle, that the applicant was entitled to retain his freedom once he had obtained it. The Attorney-General apparently relied for that observation on the fact that the O'Brien case was a civil application for habeas corpus. He assumed that the decision applied only to a civil application for habeas corpus. But, with all respect for the Attorney-General, a study of those two cases shows that that is not correct.
I want to quote a few words from the judgment of Lord Birkenhead in the O'Brien case, because they show clearly that he dealt with the matter upon a general basis, not differentiating between civil and criminal applications for habeas corpus but treating them as one. It is important to note the words he used. They appear in 1923 Appeal Cases, at page 609. Speaking of the writ, he said:It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by courts of law as a check upon the illegal usurpation of power by the Executive at the cost of the liege.In course of time, certain rules and principles have been evolved; and many of these have been declared so frequently and by such high authority as to become elementary. Perhaps the most important for our present purpose is that which lays it down that if the writ is once directed to issue and discharge is ordered by a competent court, no appeal lies to any superior court. Correlative with this rule, and markedly indicative in itself of the spirit of our law, is that other which establishes that he who applies unsuccessfully for the issue of the writ may appeal from court to court until he reaches the highest tribunal in the land.1020 How can it be said that it applies in a narrow field, when the judgments of the highest court in the land show that the principle applies equally to criminal applications as well as to civil applications? Further, how can it be said that there is no sacred principle when that principle is recognised from time immemorial as being one of the most important safeguards of the liberty of the subject? Its importance is indeed recognised by the Government when in the words of the right hon. and learned Attorney-General:That provision is left undisturbed by the Bill, for, although the Bill provides that appeals may be brought, it provides also that in civil cases the applicant having once been released shall not be liable to be restrained again. That is exactly what I was saying. So far as that principle applies, it applies to civil matters and the Bill does not affect it.With great respect, the mistake that the right hon. and learned Gentleman makes is to treat the O'Brien case as if it applies only to civil applications. It does no such thing. Indeed, the Attorney-General himself recognised that that was so, because he went on to say:Before I turn to what I may call the merits of the question, I would only add that the decisions of the courts which culminated in the ruling in O'Brien's case were expressly based on the rule that the applicant for habeas corpus could go from court to court and from judge to judge."—[OFFICIAL REPORT, Standing Committee A, 14th July, 1960; c. 83.]The right of an applicant to go from court to court applied both in criminal and in civil applications. It may not have been what we understand by an appeal, but it was, as Lord Birkenhead said, a right to appealfrom court to court until he reaches the highest tribunal in the land.That right has clearly now gone by the provisions of the Bill. The Attorney-General says that the ruling in O'Brien's case is based upon it. The Bill preserves that right, as he himself says, in civil applications. Why not in criminal applications? I am bound to say that, in my view, this is a retrograde step in what is, in the main, an excellent Bill. It is a very important matter and I hope that the attention of the public through the Press, will be drawn to what is being done.
In Committee, the Attorney-General said that he would yield to no one in 1021 his regard for the fundamental principles underlying the English law in general and the writ of habeas corpus in particular. I have no doubt that that is true. I hope that he will accept the Amendments so that the position shall not be—I use the words of Lord Halsbury in Cox v. Hakes—… that the policy of centuries has been suddenly reversed and the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last Court of AppealIn view of all those considerations, I hope that the right hon. and learned Gentleman will accept the Amendments.
§ 3.30 p.m.
§ The Attorney-General
I must advise the House not to accept the Amend-me its. The effect of them would, I fear, be quite contrary to that which the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) thinks would be the case. I will explain to him why.
As the hon. and learned Gentleman knows, Clause 5 gives the Divisional Court and the Court of Criminal Appeal power to order the detention or release on bail 'pending an appeal to the House of Lords of a person who would but for the Clause be entitled to be released by virtue of the order made by the court. In effect, this re-enacts Section 16 of the Criminal Justice Act, 1925, which, of course applied only to the Court of Criminal Appeal.
Subsection (4) of this Clause provides that where a person to whom the order relates has been detained in pursuance of an order or direction under Part V of the Mental Health Act, 1959, any order made for his detention under the Clause shall be an order authorising his continued detention under that Act. Subsection (5) provides that, where no order is made for the continued detention, or release subject to bail of the pert on concerned, he should not be liable to be detained again by virtue of any order made by the House of Lords on the appeal.
I would ask the hon. and learned Gentleman to remember why it was that Section 16 of the 1925 Act was enacted. It was because in the first case which went to the House of Lords under 1022 Section 1 (6) of the Criminal Appeal Act, 1907, the case R. v. Ball, the Court of Criminal Appeal held that it had no power to order detention pending an appeal to the House of Lords of the appellant whose appeal it had allowed.
The effect of the Amendments would, therefore, make it impossible to detain a person pending an appeal by the prosecution. It would have the incidental effect that if the prosecution's appeal succeeded, the defendant, in all cases, would be liable to be re-incarcerated, whereas under the Clause as it now stands that would not be the case. This would follow from the omission from the Bill of subsection (5) of the Clause, since Clause 1 (4) provides that:for the purpose of disposing of an appeal … the House of Lords may exercise any powers of the court below, or may remit the ease to that court.In the case of Ball, the Court of Criminal Appeal held that where the House of Lords restored the conviction, the court must give effect to its decision by reimposing the sentence of imprisonment passed on the defendant. Therefore, the hon. and learned Gentleman is wrong in what he said would be the effect of the Amendments. The Amendments would not achieve the object which the hon. and learned Gentleman desires and would, in fact, result in the imprisonment of people, or the liability to imprisonment of people, who under the Bill would not be liable to be detained again, because no order was made for their detention pending appeal or their relase on bail.
It is for these reasons that I ask the House to reject the Amendments which do not do what the hon. and learned Gentleman has suggested. He has used these Amendments—I am not complaining at all, but am trying to deal with them as shortly as I can—as a ground for raising again the interesting debate that we had on this question in Committee. On that occasion I made a lengthy speech in which I dealt with the matter in detail—the speech which the hon. and learned Gentleman has now criticised. Having heard his criticism and having reflected more upon the matter, I do not wish to depart in any way from what I said on that occasion. I hope that hon. Members will forgive me if I do not take up time in reminding them of that.
1023 I would say only this to the hon. and learned Gentleman in relation to the O'Brien case. That case was an appeal on the civil side. There could be no appeal on the criminal side. The hon. and learned Gentleman read the very passage which shows the ratio decidendi, that there was at that time the belief that one could go from court to court in an attempt to get the writ to issue. As I said, that was one of the governing considerations. Anything said in relation to habeas corpus on the criminal side, as I am sure the hon. and learned Gentleman will agree, in that case and in the other case he mentioned is obiter because no question of criminal habeas corpus arose.
What is new here is that we are giving the right of appeal to the House of Lords in habeas corpus cases. As I said in Committee, we regard it as essential that when that right is given the Court of Criminal Appeal should have the power of saying in appropriate cases that the accused must remain in detention or can be released on bail. If it exercises that power and the appeal is allowed, the ordinary consequences will follow. I certainly do not recognise the existence of any sacred principle to the effect that if a court goes wrong in releasing a man, that can never be put right by a superior court. Where a man wrongly gets his release from the Court of Criminal Appeal that can be put right if that decision is reversed. That has been the case, as the hon. and learned Gentleman knows, since 1907.
I do not think that I can usefully debate with the hon. and learned Gentleman the effect of the cases which have been mentioned and which are familiar to me, except to say, with great respect to him, that I do not see that the decisions in those cases in any way support the arguments which he has put forward. In those circumstances I must ask the House to reject the Amendments.
§ Mr. Fletcher
I am most disappointed with what the Attorney-General has said. I think it important that the House and country should appreciate the vital change which is being made in the law of habeas corpus as a result of the Bill as it stands. The right hon. and learned Gentleman reminded the House of the position in 1024 the days of the O'Brien case. It is perfectly true that in those days one thought, and it was the practice, that an applicant for a writ of habeas corpus could go from one judge to another until he got the writ. It has only recently been decided in the Hastings series of cases that that was not the strict law. The fact and the practice was that anyone who thought that he was entitled to the ancient writ of habeas corpus, which is and has been for centuries the foundation of the liberty of the subject, in practice could go from judge to judge. Once he had obtained from any judge a writ of habeas corpus that was final. His release was ordered and he could not be restrained or detained by any other court. There was no appeal against it.
Not only in the cases which my hon. and learned Friend the Member for Stoke Newington and Hackney. North (Mr. Weitzman) has cited, but in all the textbooks it is laid down as the touchstone of the liberties of the British people that that is the one prime safeguard which protects the subject against invasion of arbitrary power by the executive, whether authorised or unauthorised.
What will happen as a result of the Bill is this. It is perfectly true, as the right hon. and learned Gentleman said, that appeals are allowed to an applicant for habeas corpus against the decision of the court which refused it. We all welcome that. We are all glad that in future if the Court of Criminal Appeal, the Divisional Court or any other court refuses to grant a writ of habeas corpus, that will not be final against the applicant. It is right that the applicant should be able to take his case to the House of Lords, but it does not follow that it is equally right that the prosecution should be able to appeal against the man's release and take it to the House of Lords. The release ought to be final.
Then, the Attorney-General said, as he argued in Committee, that it may well be that a point of law has emerged in the divisional court and that, if a point of law has emerged, it is just as essential that the prosecution as well as the person restrained should be able to get that point of law clarified. We all agree with that.
It does not follow from that, however, that the person whose release has been ordered by the lower court should again 1025 be restrained, because for centuries the historic position has been that once the writ of habeas corpus has been granted by a court, the person should be released and at liberty. It is because the Bill infringes that historic principle that we have put down these Amendments.
§ Mr. Weitzman
I am sorry that this debate is taking place on a Friday afternoon, when we are pressed for time in discussing a most important principle. A great deal more attention should be paid to this matter, which I regard as fundamental.
The Attorney-General said something about my misunderstanding of Clause 5. I point out, however, that under Clause 15, the prosecution having a right to appeal against an order for release of the person restrained, it is necessary to enact Clause 5 to deal with what shall happen to that person by way either of releasing him, detaining him or granting him bail.
In putting forward the Amendment, the logical course was to omit Clause 5, because those provisions would be quite unnecessary if under Clause 15 we removed the effect of the decision upon a person in a case where the prosecution made such an appeal. I am disappointed at the answer of the Attorney-General. I regard this as a most important principle. This is a retrograde step and puts back the clock in an important matter in what is an excellent Bill.
§ Amendment negatived.