COURT OF CRIMINAL APPEAL (ANTHONY SMITH) (Hansard, 17 December 1963)

§ Mr. Arthur Lewis (West Ham, North)
First, Mr. Speaker, I thank you for your kindness in selecting this matter for the Adjournment debate; secondly, I apologise for the fact that I have a very bad cold. If it were not for the fact that this is an individual constituent's case I would rather have been in bed at this hour. The Solicitor-General, whom I am pleased to see is here to answer on behalf of the Lord Chancellor's Department, is fully au fait with the details of the case, because we have had a considerable correspondence about it, and I will not bore him by going into intimate details. I will quickly run over the position in order to get the facts on the record. I want to make it clear that I make no criticism of the legal or judicial actions which have been taken.
Briefly, the position is that I have a constituent who was sentenced to three years' imprisonment. This prisoner sought leave to appeal against sentence on 24th June. The case was heard by a single judge on 31st July, and leave to appeal was refused. He then appealed against this decision, and this appeal was heard on 11th October by the Lord Chief Justice, Mr. Justice Ashworth and Mr. Justice Inchcliffe. Again, leave to appeal was turned down.
I would not attempt in any way to comment upon that decision, and that is not the point I wish to raise. My complaint lies with the Registrar's Department, which comes under the Lord Chancellor's control, in that, in both instances, neither the prisoner nor his parents—and nor, indeed, his legal advisers—were informed when these cases were to be heard. That is wrong and bad, although I agree unreservedly that the learned judges who heard this appeal and gave their verdicts would be the first to quote the old maxim which I know the legal profession often uses—that justice should not only be done but should be seen to be done. In this instance, the court 1214 officials knew the parents' address and could have written and notified them. However, the parents were not notified.
Unfortunately, the prisoner is somewhat mentally backward. I do not mean any disrespect to his parents, but they are probably not quite as well versed in legal procedure as are some people. At this point in the story, a friend of the parents interceded on behalf of the prisoner and the parents. This friend telephoned the Registrar-General's office. He claims that he has evidence to show that on at least 17 occasions he telephoned that office to ask when the case would be heard. He claims that on each occasion he was told that he would be informed of the date; that he had no need to worry. I have with me a list of 17 dates on which he states that he telephoned. I will not weary the House with the actual details, particularly since the Solicitor-General has this information. Even in the week when the case was to be heard he telephoned and was told—having had to wait for a long time while the relevant papers were found, although I make no complaint on that score—not to worry, that he should not trouble himself and that it would not be heard that week but the following week.
The next the friend heard was that the prisoner had been informed that the case had been heard, settled and resolved—and that the decision was against the prisoner. When I took this matter up with the Lord Chancellor he seemed to think that because legally the parents would not have had the right to have been heard, there was nothing to worry about and there was nothing for them to be concerned about.
That is not the right approach. Even if the parents could not have been heard and even if they did not wish to say anything, they should have had the opportunity of being present at the hearing. I am not saying that this is so, but had they been present they may have felt that the learned judges—and I say this meaning no disrespect, for I am merely citing an example—may not have done their job properly. I appreciate that that would not have been the case, but the parents might have felt that way and, obviously, they would have felt happier had they been at the hearing.
1215 I put a Question to the Home Secretary on this general question when, earlier this month. I asked him …whether…he will introduce legislation to ensure that the parents or legal advisers of prisoners are notified of the time and date of the hearing of prisoners' appeals, and are permitted to be present at such hearings. The right hon. Gentleman gave me a typically Ministerial Answer, that Hearings before the Court of Criminal Appeal are open to any member of the public."—[Official Report, 9th December, 1963; Vol. 686, c. 42.]: I appreciate that, but unless they know when the case in which they are interested is coming up it is no good telling Mrs. Smith or Mrs. Brown, "You can go to the Court of Criminal Appeal any time you like and listen, but you will not be notified when the case in which you are interested is coming up." In such circumstances the interested party must attend the court every day for every hearing in the hope of being present when the relevant case is considered.
I am suggesting that some system should be evolved whereby the Registrar, his Department or someone else should tell the next of kin—in the case I am raising it would have been the father and mother of the prisoner—when the appeal is to be heard so that they may have the opportunity of being present to at least witness what is going on.
I do not disagree when the Lord Chancellor says that the judges would not have decided the case any differently if the parents or a legal adviser had been there. It would not have made the slightest difference in that respect, but the parents would have felt much happier and more contented in the knowledge that they were present. I do not wish to be out of order, but the same would apply if the parents were now in the Public Gallery listening to this debate. They would feel that their case was being put and being dealt with fairly.
I ask that in future when cases of this kind are heard the Registrar's Department should go out of its way by telephone, telegram, registered letter or express letter, or by the more lengthy process of notification by letter, according to what the circumstances require, to notify Mrs. Smith or Mrs Brown when 1216 the husband's or son's case is due to be heard. It might well be that the Lord Chancellor's Department would say that it could not guarantee that the case would be heard on the date notified, but the communication could be framed accordingly to allow for an approximate date of hearing.
I know that nothing can be done now in this case, but I should like to see a better procedure established for the future. Notification is not now incumbent upon the Registrar's Department. There is no obligation to give information in response to a telephone call. When it is given it is out of kindness and courtesy. There is no obligation even to give a detailed reply to a letter. I ask the Solicitor-General to ensure that in future some system is introduced whereby a standard form of letter is sent out notifying an appellant or the next of kin when a case is due or approximately due for hearing so that those concerned or their legal representative may be present.
I know that the question of clemency is a matter for the Home Secretary, but I would ask the Solicitor-General to request his right hon. Friend to consider clemency in this case. I make no comment, adverse or otherwise, on the sentence but this boy is mentally retarded. Unfortunately, he was born during the blitz. A bomb which fell outside the home when the mother was pregnant seriously affected the child. He and his parents feel that he has been made to suffer three times. When the case was due to be heard, he was kept in custody for nine weeks while those associated with him were let out on bail, and he feel she was unfairly treated. When leave to appeal was refused without him or his parents being present he thought he was unfairly treated. Again, when his appeal against refusal to grant permission to appeal was heard, he and his parents and his legal advisers were not informed and were not present, and he feels that he has had a raw deal.
I feel that the case can be looked at from the point of view of clemency. Perhaps the Solicitor-General will whisper in the ear of the Home Secretary and ask him to see the parents and talk about it and see whether something can be done. If he would, he will be doing a good job for the boy and the parents. 1217 If he could get the general position dealt with, it would be helpful to others who may be in this unfortunate position.

§ The Solicitor-General (Sir Peter Rawlinson)
The House is indebted to the hon. Member for West Ham, North (Mr. A. Lewis), who, despite his cold, has come here and given the House a very clear and vigorous exposition about the incident, which arose from what I completely accept was a most unfortunate misunderstanding. I will deal with that first, and then with the request which the hon. Gentleman directed to me.
The position was, and the substance of the hon. Gentleman's complaint is, that the parents of Anthony Smith lost—I use the word advisedly—their opportunity to address the Court of Criminal Appeal on behalf of their son when his application for leave to appeal against sentence was being heard. First, he himself was informed of the application. I have no record, and am not advised, of his having any legal advisers at all.

§ Mr. Lewis
The day before.

§ The Solicitor-General
It may be that it was the day before, but in these circumstances he himself gets the information that his application is coming on.
I turn to the important matter with regard to the parents. I want to make it clear that I do not dispute that the parents lost the opportunity. But it must be realised, as the hon. Gentleman appreciates, under the Statute setting up the Court of Criminal Appeal, that they have no legal right to be heard in such circumstances. Indeed, again under the Statute, the applicant himself has no legal right to be present when an application in such circumstances for leave is heard. But, as a general rule, if the parents of an applicant of the age particularly of this young man are present in court and wish to address the court on his behalf, the court is very willing to hear what they have to say. That appears to be the practice. No doubt if Mr. and Mrs. Smith had been present in court on this occasion and had sought the leave of the court to address it, their request 1218 would have been very sympathetically considered.
I want to make it clear—I do not think the hon. Gentleman and I are in any disagreement about this—that if the Criminal Appeal Office, the Registrar's office, had received a direct request from the parents for information about the date of the hearing, they would have received a written notification in advance.
I come now to the misunderstanding, because the unhappy truth is that, whatever else it was that the Criminal Appeal Office received, there is a conflict of evidence about the number of telephone calls which Mr. Leonard made and their precise content. What was never received was a direct and personal request by or on behalf of the parents of Anthony Smith. This certainly was a great pity. As Mr. Leonard, the gentleman who telephoned, himself wrote to the hon. Gentleman and the hon. Gentleman in his turn passed on to my noble and learned Friend, the officers of the Criminal Appeal Office throughout showed every courtesy and every willingness to help. Indeed, the misunderstanding which arose was the direct result of their willingness to help, because they were under the clear impression that what they were being asked to do was to expedite the hearing of Smith's application for leave to appeal. It now appears that this was not so—because as an applicant for leave to appeal Smith enjoyed all the privileges of a person in that position in the way of visits by his parents to which he would not be entitled as an ordinary prisoner—and that the parents were anxious apparently to prolong the period during which he was specially treated and they could have more opportunities to visit him.
But the true position is that the parents were anxious to attend the hearing of this application, and Mr. Leonard, the gentleman who did telephone, was acting on their behalf. The hon. Gentleman has suggested that with great courtesy, but with proper vigour, that there was some neglect or slip on the part of the staff of the Criminal Appeal Office, but this I cannot fully accept. That there was misunderstanding I certainly do, but the staff never appreciated that Mr. Smith's patents wished to attend the hearing, and all they understood was that 1219 the person on the telephone wanted the appeal to come on quickly. In fact they were under no duty—this is another point made by the hon. Gentleman—in the Criminal Appeal Office to inform them of the date which had been fixed for it, but no one is more sorry that this misunderstanding should have occurred than the responsible officers of the Criminal Appeal Office, to whom Mr. Leonard has paid his tribute, and they regret equally the conflict of evidence which has arisen.
To take one example, they simply do not recollect the large number of telephone calls which Mr. Leonard claims to have made, but it is fair to observe that in the Criminal Appeal Office, as the hon. Gentleman can imagine, they do receive a very large number of telephone calls every week.
The hon. Gentleman has accepted the perfect propriety of the judicial proceedings which took place, and this was, as he said, an appeal against sentence only, and the court had before them when hearing the appeal, a long letter which had been written by the parents of Smith and which was asking for clemency, and neither my noble and learned Friend nor the court nor I know whether the parents have anything to add to what in fact was set out in the letter. The question whether in these circumstances the matter can be reopened is not one, as the hon. Gentleman appreciates, for the Government but for the court, but it is open to the parents to take the matter up with the court, and if they so wish to write to the Registrar of the Court of Criminal Appeal at the Royal Courts of Justice.
So far as the past of this case is concerned, a very thorough inquiry has been held. Every single member of the staff has been asked about it, and my noble and learned Friend is wholly satisfied that the source of this misfortune was this misunderstanding.
The staff of the Criminal Appeal Office will continue to do, as they have done in the past, all they can to help, and if the parents of an appellant wish 1220 to attend the hearing of the appeal and the Registrar is notified in writing, they are informed of the date of the appeal. They need no special permission to attend the court, which is open to the public, of course, but the Registrar usually arranges in such circumstances for them to be admitted to the body of the court instead of the gallery.

§ Mr. Lewis
If I may interrupt the hon. and learned Gentleman, for the first time, I think, may I ask, if that is the case, as there are many of these people who do not understand the procedure, could they not be notified in any case that they could attend? Because it is not generally known.

§ The Solicitor-General
The position is that if persons write saying they wish to be there, then they get information as to when the appeal will be heard, and that they can come. This case has shown that misunderstandings may arise from telephoned inquiries, and in future if an inquiry is made about a case which is not listed for hearing, the inquirer will be asked to put his request into writing. I think that this will prove a more accurate and safer method of proceeding. It is hoped in future to avoid misunderstandings of the kind which occurred in this case.
In reply to the last part of the matter which the hon. Member raised, I will certainly undertake to draw my right hon. Friend's attention to it, although perhaps it does not arise from these proceedings. I will certainly pass on his request.

§ Mr. Lewis
May I thank the Solicitor-General for his remarks and hope that he will be able to do something to put right what appears to be a grievance through misunderstandings, whichever way they may have been caused. I thank him very sincerely for the way in which he has dealt with the matter.