HC Deb 30 April 1964 vol 694 cc705-18

9.2 p.m.

Mr. David Weitzman (Stoke Newington and Hackney, North)

I beg to move, in page 1, line 22, at the end to insert: (3) No retrial by virtue of this section shall be directed where by reason of evidence received by the Court of Criminal Appeal under section 9 of the Criminal Appeal Act 1907 there is a reasonable doubt that the appellant is guilty as charged. It is said that if a prisoner applies for a new trial there ought to be power in the court to order it. This Bill now gives that power but only by reason of evidence received or available to be received by the court. If the Bill gave that power where an appellant specifically restricted his appeal to a request for a new trial, I would certainly be in favour of it. But what it, in fact, does is to alter the position that exists today.

Today, if an appellant appeals against his conviction upon the ground that there is fresh evidence available which will show, or help to show, that his conviction is wrong and the court admits that evidence, the court hears the evidence and if there is reasonable doubt the court allows the appeal, quashes the conviction, the appellant is released, and that is an end of the matter.

If the Bill becomes law as drafted, on any such appeal the court may well say that there should be a new trial, with all the unsatisfactory consequences of a new trial. I move the adoption of this new subsection because it seems to me that that entails a clear departure from a well-established and well recognised principle of our law.

In Committee, in moving a similar Amendment, I quoted a passage from a judgment of the Lord Chief Justice, Lord Hewart, in the case of Harding, reported in the Criminal Appeal Reports, Vol. No. XXV, and I should like to inflict it once again on the House. Lord Hewart used these words: The question for this Court to consider is whether, if that evidence had been given before the jury, it might have had the effect of raising in the minds of the jury a reasonable doubt. The function of the prosecution is, of course, to establish the case beyond a reasonable doubt. If it tails to fulfil that condition, the prisoner is entitled "— I emphasise these words— to be acquitted. The burden of proof is never upon the prisoner. Acquittal must follow if the evidence is such as to cause a reasonable doubt, because that is only another way of saying that the prosecution have failed to establish the case. That principle—that if there is a reasonable doubt, the prosecution has failed to discharge the burden of proof upon it and the accused person should be acquitted—is one of the most important in our criminal law.

In Committee, the Solicitor-General said that he recognised the importance of that principle. He sought to distinguish between what he called a clear doubt and he went on to say that it must have this power when it conies to the conclusion that a jury might have had a reasonable doubt. That is the case when the Court of Criminal Appeal would apply the new powers provided by this Measure. I ask the House to note the words he added: I want there to be no doubt in the mind of the Committee that this extended power to he given to the Court of Criminal Appeal will, in my view, be used by the Court to a certain extent to qualify—if one likes to call it that—the principle in Harding's case". My right hon. and learned Friend the Member for Newport (Sir F. Soskice) used these words which are very appropriate to my argument: Finally, does the right hon. and learned Gentleman think that there is any risk that if we pass this Clause we shall, by implication, introduce some amendment into the principle stated in Harding's case? Will the Court of Criminal Appeal, now being armed with this fresh power, be bound to say to itself, 'Until this Clause became law we were bound by the principle in Harding. The two are inconsistent. They will not stand up together. Therefore, we must henceforth regard the principle in Harding's case as, to some extent qualified '". That is exactly what the Solicitor-General said. My right hon. and learned Friend went on: In that case, might it not lead to the dangerous result that the Court of Criminal Appeal, being left in doubt whether the conviction would have stood had the further evidence been given, will say, 'We will not act on that doubt, but will send it back to a new jury to see whether or not our doubt is well founded'? If that is the case, is it not rather an unfortunate situation to bring about by this new legislation?"—[OFFICIAL REPORT, Standing Committee G, 11th March, 1964; c. 103–16.] It is because I feel that there should be no departure from the principle set out in the Harding case that I move the Amendment.

I ask that the principle in our criminal law—that if the prosecution fails to discharge the burden of proof upon it, the accused person shall not be convicted—shall still stand as a fundamental principle of our law, unqualified, as it has stood for centuries.

The Secretary of State for the Home Department (Mr. Henry Brooke)

The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) moved an identical Amendment in Committee. My right hon. and learned Friend the Solicitor-General, who unfortunately cannot be here this evening, replied to it, and although the hon. and learned Gentleman did not withdraw his Amendment he did not divide the Committee on it. On this occasion I will seek to reply to him. I cannot tell whether I can convince him, but I hope that I shall be able to convince the House. I am, of course, maintaining my record in that I am the only non-legally qualified hon. Member to have spoken on the Bill at any of its stages through this House.

The purpose of the Amendment, as I understand it, is to ensure that the Court of Criminal Appeal will direct a verdict of acquittal, not only in cases when it is satisfied that, having regard to the new evidence, the jury would have had reasonable doubt, but also in cases where it concludes that the jury might have had a reasonable doubt.

There is a distinction between them, and I am sure that my right hon. and learned Friend the Solicitor-General was right in saying that the Bill does to some extent qualify the Lord Chief Justice's judgment in Harding's case. Indeed, it is part of the purpose of the Bill to give a wider discretion to the Court of Criminal Appeal.

Under the present law, if the C.C.A. considers that the fresh evidence that it has heard would be bound to have raised a reasonable doubt in the mind of the trial jury, it will direct acquittal. If, on the other hand, it is satisfied that the evidence would not have persuaded the jury to any other conclusion, it will dismiss the appeal.

Those are the simple cases. Between those extremes there is a wide range of circumstances in which the court has the very difficult task of assessing whether the jury's verdict might or might not have been affected. But, having heard the whole of the evidence given at the trial, and without knowing what weight the jury attached to various parts of it, the C.C.A. must now decide what effect the new evidence would have had. If as a result of this very difficult assessment the C.C.A. concludes that the jury might have been led to a different verdict, under the existing law it would allow the appeal and enter an acquittal.

But there are cases in which the C.C.A. finds extreme difficulty, on the limited material before it—not having heard the original trial—in deciding whether the jury's verdict at that trial might have been affected had the new evidence been before it. It is in these borderline cases that the evaluation of the evidence can best be done by presenting all the evidence to a new jury. This is what the Bill will permit. It seems to the Government that it is desirable that the C.C.A. should have this wider discretion.

I do not want to be too severe on the hon. and learned Gentleman, but it seems to me that if his Amendment were written into the Bill, it might be a wrecking Amendment. Indeed, some words that he used in Committee made me wonder whether he intended it to be a wrecking Amendment, but I am not going to treat it as such.

I rest my case on this: there are cases in which the C.C.A. feels quite clearly that there would have been a reasonable doubt in the mind of the jury had the new evidence been before it; there are other cases in which the C.C.A. feels that there would be no doubt even if the new evidence had been presented to the jury; and there are these intermediate cases in which the C.C.A. feels that there might have been some doubt. But the Court itself, not having been present at the original trial, cannot, with certainty, assess what would have been the verdict of the jury had this additional evidence been available. These are the cases in which, in the view of the Government, the C.C.A. should have the discretion to order a new trial.

Mr. Weitzman

Will the right hon. Gentleman tell us quite clearly that the intention of the Bill is to alter the law as laid down in the words of the Lord Chief Justice in the case of Harding?

9.15 p.m.

Sir Frank Soskice (Newport)

I do not want to prolong the debate, but my hon. Friends and I feel real anxiety about this matter. We are dealing with the Court of Criminal Appeal, which is the linchpin of our administration of justice. The Home Secretary has struggled with the legal problem with great skill and courtesy, as he always does, and he has done his best to help us, but I do not know whether the Attorney-General has had an opportunity of considering the point, and whether he could give us some help in addition to that which we have already received. We should have this quite right.

I put this to the Home Secretary: there may be cases in which the Court of Criminal Appeal says that the further evidence could not have influenced the jury. Those cases are out; we are not dealing with them. There may be cases in which the Court of Criminal Appeal says, "This further evidence would have influenced the jury." We are not considering those cases and we can leave them out of account. Then we come to the intermediate case, about which I am not sure that we are clear where we are going.

The Home Secretary has said that that was the case in which the Court of Criminal Appeal said, "This is a case in which the further evidence might have influenced the jury." As I understand the existing law, if that were the view of the Court of Criminal Appeal it would have resulted in the allowing of the appeal. That is the effect of Harding's case. The Home Secretary then said that there is a further sort of case in which the Court of Criminal Appeal says, "This evidence might or might not have affected the jury." I may be wrong, but logically I cannot distinguish that case from the case in which the Court of Criminal Appeal says, "This is a case in which the evidence might have affected the view of the jury." There is no distinction between the two.

If it is said of a case, "In the circumstances of this case the jury might or might not have been influenced by the fresh evidence," it is said, ipso facto and automatically, "This is a case in which it is possible that the jury's verdict might have been different." That is another way of saying, "This is a case in which the jury might have been influenced by the fresh evidence." I put it to the right hon. Gentleman that the distinction that he is trying to make between the case where a jury might have been influenced or might not have been influenced is a non-existent distinction.

If that is logically right, I ask for a little more guidance from the Government as to what we are doing by the Bill, which is now almost an Act. We are raising this question in this debate, as we have raised it before. Although the Bill is now almost an Act this point is none the less important. Therefore, I hope that we may have some clearer thinking about this. I say that with due respect to the Home Secretary. I do not know whether the Attorney-General has had an opportunity of going into the matter in order to see whether he can clarify it, but he is very learned in the law and he may be able to take the matter a little further.

What are we doing by the Bill? The Solicitor-General said that we are altering the ruling in Harding's case. What alteration are we making in it? How is Harding's case now to be regarded as qualified by the wording of the Bill? I hope that we may be given some help on this matter, which is one of great importance. It will govern the law for many years to come, and it is possible that we are getting ourselves into a state of confusion and putting a very difficult task before the Court of Criminal Appeal.

The Attorney-General (Sir John Hobson)

As I see it, the Amendment would preserve the law in its present form. It would still leave the Court of Criminal Appeal as the determiner of the facts. The difficulties that have arisen in this connection have arisen not in cases where the facts are agreed and the only question is what inferences should be drawn from those facts, but in cases where, the jury having heard a lot of evidence and the Court of Criminal Appeal having only seen the transcript of the evidence and having heard a lot of additional evidence, the Court of Criminal Appeal has to make up its mind what the jury would have thought if it had heard that evidence, when it does not know what impact the witness made on the jury, or the basis upon which it came to its conclusion.

As I see the Clause and the Bill, the purpose of it is this. If the additional evidence that comes before the Court of Criminal Appeal is undisputed, and the inference is plain that it would clearly influence a jury in coming to its decision and might have led to the conclusion that there was a reasonable doubt as to the guilt of the accused, in those circumstances, the appeal will be allowed as heretofore. On the other hand, if it is plain that the evidence is irrelevant or wholly unreliable, and would not have made any difference to any rational jury, the Court of Criminal Appeal will dismiss the appeal.

While it is absolutely logical to say that if it might have affected a jury, then there ought to be an acquittal as heretofore, that jumps over the initial stage in which the Court of Criminal Appeal has to take a decision whether it is right that it should make up its mind about the impact of the facts. At present, upon an appeal, the Court of Criminal Appeal has to look at the additional evidence and take it with a lot of evidence which it has not heard in a trial in an atmosphere of which it is unaware. It has to add that additional evidence to the transcript and determine whether the charge is made out, despite the additional evidence, beyond all reasonable doubt, or whether a jury might have allowed an acquittal because of a reasonable doubt.

All that is happening is that where the evidence leaves the Court of Criminal Appeal in a state of mind in which it says, "With this additional evidence against the transcript, we cannot say what a jury might have done" the right thing to do—particularly where there is a direct conflict in the additional evidence with the evidence on the tran- script—is to say that a jury is the right machinery under which the whole evidence ought to be looked at again, in order that the jury, taking note of the evidence, can determine what effect it had.

As I see it, the golden thread running through our law—that the prosecution must prove its case beyond reasonable doubt—remains unaltered. The only question is whether, in certain circumstances, that decision must be taken by the Court of Criminal Appeal, acting partially on behalf of a jury, or whether, in those intermediate cases, it might be transferred to a new jury to take that decision. That is why the power is granted, and that is the purpose of the Bill.

Amendment negatived.

Mr. Weitzman

I beg to move, in page 1, line 22, at the end to insert: (3) No retrial by virtue of this section shall be directed where the appellant has been found guilty by a second jury after a first jury has failed to agree. This Amendment seeks to restrict the application of subsection (1) of Clause 1 of the Bill. I ask that the provision contained there should not apply to cases where the appellant has been found guilty by a second jury after a first jury has failed to agree. In my view, a second trial is always unsatisfactory. If a jury disagrees, surely that means that the prosecution has failed to prove its case beyond reasonable doubt to the satisfaction of the jury, who are the judges of fact. I have always taken the view that once a jury has disagreed, the accused person should be adjudged to be not guilty, and acquitted.

If the Bill becomes law in its present form, an accused person may be faced with three trials. He may be tried first by a jury which disagrees. He may be tried a second time and convicted. He may appeal on the grounds, of fresh evidence being available, and a new trial may be ordered by the Court of Criminal Appeal, so that he is tried a third time. I remind the House that if an accused person is tried and the jury disagrees, and if he is tried a second time and the jury again disagrees, the Crown recognises that it is wrong to put him on trial a third time. A verdict of not guilty is entered and he is discharged. Why should there be power under this Bill to order a new trial in a case where it means a third trial?

One has only to think of what it means to an accused person, of the anguish and worry that would be caused to him. One has only to think how unsatisfactory a third trial would be, especially in a case where the court says that consideration has to be given to fresh evidence. If the fresh evidence is such that the verdict of the jury cannot stand, surely it is a case of reasonable doubt and the court in those circumstances should quash the conviction and order the prisoner's release.

Mr. Brooke

The hon. and learned Member moved an identical Amendment in Standing Committee and on that occasion it was I who replied to him. After had given a reply which reads to me quite logically and cogently, the hon. and learned Member was gracious enough to say: I do not understand a word of what the Home Secretary has said."—[OFFICIAL REPORT, Standing Committee G, 11th March, 1964, c. 108.] That might have been my fault or his fault. May be there is a difference of opinion between us on that question, but I shall seek to present the case again.

Nobody is in doubt, as he said, that when two successive juries have failed to agree it is the normal practice for the prosecution to offer no evidence, so that the case falls and the man is acquitted. But that is not the position here. Here there has been a trial and the jury has disagreed. Then there has been a second trial and the new jury has decided that there was no reasonable doubt that the man was guilty. The man then appeals to the Court of Criminal Appeal and it is at that point that we have to consider what the Court of Criminal Appeal should do. Surely the Court of Criminal Appeal should concern itself—and Parliament and everyone should be concerned—with the fact that at the second trial a jury of 12 men or women came to the conclusion that there was no reasonable doubt that the man was guilty, and consequently found him guilty. That overrides what had happened earlier, the division of opinion among the jury at the first trial.

It is to that situation that the Court of Criminal Appeal has to address it- self. It has to consider, as we discussed on the previous Amendment, whether it thinks that, had the new evidence been available, the jury would have felt there was doubt as to the man's guilt; or whether the jury would have felt no doubt; or whether the jury might have felt a doubt. What happened at the first trial when the jury failed to agree is not relevant to the problem to which the Court of Criminal Appeal has to address itself in deciding whether to dismiss the appeal, or to quash the conviction at the second trial, or to order a new trial.

The hon. and learned Members says that it is unfair that in any case there should be a third trial, but what he is proposing, as I pointed out in Committee, would also have unfair consequences. Suppose there were two men before the Court of Criminal Appeal on similar charges in similar circumstances, and in each case the Court of Criminal Appeal felt that the jury at the trial might have felt doubt, had the new evidence been available, as to the man's guilt.

In those circumstances, under the Bill as it stands the Court of Criminal Appeal would have discretion to order a new trial. But if one of those men had gone through a trial where the jury had failed to agree and had been convicted at a second trial, the acceptance of the Amendment would take away the power of the Court of Criminal Appeal in that man's case, but not in the other man's case, to order a further trial. As I understand it, if a man had a first trial at which the jury failed to agree and had then been convicted at a second trial, the Court of Criminal Appeal, even though it wished and would have thought right to order a new trial, would, if the Amendment were accepted, be debarred from doing so.

9.30 p.m.

Mr. Weitzman

Does the right hon. Gentleman not appreciate that in those circumstances the Court of Criminal Appeal would quash the conviction?

Mr. Brooke

Under the Amendment, because the original jury had not been able to come to a unanimous conclusion, the Court of Criminal Appeal would have to quash the conviction. As I was pointing out, in a virtually similar case where the jury had agreed at the first trial on a verdict of guilty, the court of Criminal Appeal would have discretion to order a new trial. I do not think that we should take away that discretion from the Court of Criminal Appeal simply and solely because, when the man first stood his trial, the jury had failed to agree.

I am pointing out to the hon. and learned Member that if the Amendment were accepted it would cause unfairness between two men in similar circumstances. In this connection, the hon. and learned Member said in Committee that he thought it would be unfair for the man to stand a third trial; but he did not address himself to the point I put—that it would be unfair to treat two people similarly placed differently, simply because in one case the jury had failed to agree. I am bound to advise the House, as I advised the Committee, that to accept the Amendment would not improve the Bill, although I entirely appreciate the compassionate reasons which led the hon. and learned Member to suggest it.

Mr. Niall MacDermot (Derby, North)

Until the Home Secretary's last phrase, I doubted in my mind whether he had appreciated the point underlying the Amendment. He told the House that he is the only non-lawyer to have addressed either the House or the Committee on this Bill. To any other non-lawyer listening to the right hon. Gentleman and ignorant of the fact that the Home Secretary is a non-lawyer, he would not have guessed it from the right hon. Gentleman's reply. Most non-lawyers would consider the right hon. Gentleman's reply to have been a typically lawyer's answer. It sought to draw a highly technical legal distinction in answer to what is basically a simple, humanitarian issue.

As my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) said, lawyers dislike and detest retrials. It is not only lawyers but anyone who knows what is involved in a retrial who hates and detests them—although it is generally only lawyers who know that, although everyone knows or is capable of understanding that for a man to undergo a trial by jury is in itself a great ordeal. If he is innocent—and we must assume that we are discussing the cases of at least some people who may be innocent—then to have to go through that ordeal a second time is bound, to some extent, to be oppressive.

The law has accepted, before the Bill was introduced, at least one exception; that is, where a first jury disagrees the man can be retried, when it is thought right to see if a second jury reaches finality. However, if the second jury is unable to reach finality the prosecution offers no evidence and there is no third trial. Why not? On the argument put forward by the Home Secretary there is no earthly reason why there should not be a third.

It might be convenient for me to borrow his argument—if it be an argument at all, which I do not think it is. It might be most unfair if there were two men in like circumstances charged with similar crimes and if one of them had the good fortune that the jury agreed the first time but the second jury disagreed. How unfair it would be if the first man who got convicted saw that his friend, in a like situation, got away with it because the soft-hearted prosecution decided to offer no evidence the third time.

The reason I say that this is no argument is that I do not think that any convicted criminal feels any sense of resentment when another person who may have been a co-accused and, perhaps a co-criminal, got away with it. The attitude of the convicted man in such a case is usually, "Good luck to him". This shows that the argument of the Home Secretary is not realistic or even an answer.

The reason why the prosecution do not offer evidence the third time if two juries have disagreed is simply that it is thought to be oppressive beyond the limits of what the law can stand or defend. Therefore, if two juries disagree the man is not put through the ordeal a third time. I agree that there is a distinction between the situation which we are now considering and that where two juries disagree. The distinction is very fine. It is that on the second trial we are assuming that the first jury has agreed and now we are assuming that fresh evidence has been brought forward before the Court of Criminal Appeal which is sufficiently cogent for the Court of Criminal Appeal to say, "We think that that second jury might have come to a different conclusion if they had had this evidence before them." What in those circumstances—and I wish that there had been more non-lawyers present—does the House consider is the really fair thing to do?

Which would give the most credit to our legal system, that in that situation we should say that he must go free a third time, or that we should say that we think it would be oppressive to put him through a third trial and that we do not think that in those circumstances it would be right to allow the conviction to stand and therefore he should be acquitted? If the House does not apply the Amendment, I like to think that the Court of Criminal Appeal in its humanity will apply Clause 1(1) of the Bill and say that it does not think that the interests of justice require that he should be tried again. I should like to think that the Court of Criminal Appeal will use its discretion with such humanity that in effect the Amendment would not be necessary because it expresses the viewpoint which would be that of the Court.

But I cannot be certain in my mind that that is how the Court of Criminal Appeal would do it and I sincerely hope that the House will take that view and will press the Government to reconsider the matter and to think whether the Amendment would not improve the Bill and that the Amendment is truly in the spirit of it. The Home Secretary knows that in Committee I have supported the Bill and that I have supported a further exception to the rule that a man should not be put at his peril twice, but my hon. and learned Friend's Amendment greatly appeals to me, as I hope it does to the House.

9.45 p.m.

Mr. Brooke

If I may speak again with the leave of the House, I think that the hon. and learned Member for Derby, North (Mr. MacDermot) is quite right in saying that the Court of Criminal Appeal, in its humanity, might decide that it was not right in a case such as this to order a new trial. But surely this is the sort of discretion which can be and should be left to the Court of Criminal Appeal. That court might feel very strongly that this was exactly the type of case where a new trial was desirable. Yet if we accepted the Amend- ment, the court would be debarred from doing what it thought to be right. I am firmly of the opinion that it would be better to leave this to the discretion of the court than to debar that court, ab initio, from doing what it thought would further the ends of justice in a particular case.

Amendment negatived.