Schedule 1.—(PROVISIONS AS TO NEW TRIALS BY COURT-MARTIAL.) (Hansard, 30 April 1964)

§ Mr. Brooke
I beg to move, in page 6, line 27, to leave out "Admiralty" and to insert "Defence Council".

§ Mr. Speaker
I suppose that it would be convenient to take at least the Amendment to page 6 together.

§ Mr. Brooke
If the House would agree, perhaps it would be possible to discuss the five remaining Amendments to the Bill together because the point of them is the same.

§ Mr. Speaker
If the House so pleases.

§ Mr. Brooke
The effect of the Amendments is simply to substitute throughout the Bill references to the Defence Council for references to the Admiralty, the Army Council and the 719 Air Council. This reflects the provisions of Section 1 of the Defence (Transfer of Functions) Act, 1964.

§ Mr. Weitzman
On this Motion, I wish to take what is, perhaps, a final opportunity of expressing my regret that the Bill in its present form should receive a Third Reading. I have throughout expressed my opposition to it and attempted, unsuccessfully, to modify its application.
In my view, Clause 1 is badly drawn. It refers to evidence…available to be received by that Court under section 9 of the Criminal Appeal Act, 1907". In fact, Section 9 contains no provision with regard to evidence available to be received, and I imagine that this point may well be taken when an appropriate case is heard by the courts after the Bill becomes law.
I have no doubt also that a second and, possibly, a third trial which may be ordered by the court will be unsatisfactory. Reference may well have been made to the former trial or trials—a degree of publicity may well have been given to such trial or trials—and, on any view, these matters must affect the fairness of the proceedings. In my view, the evidence at such a trial is stale. Cross-examination cannot be effective because, clearly, the witnesses are prepared with their answers.
The Amendments which were rejected in Committee showed, I submit, in no uncertain way the difficulties which must result from this reform. But, more than anything else, I regret the admitted qualification which the Bill 720 makes, the interference with the well-recognised principle that, if the prosecution has not discharged the burden of proof which is upon it, the accused should be found not guilty and the conviction quashed.
In Standing Committee, the Solicitor-General said, with regard to the new power, that the court would take the attitude of saying, This should go to a fresh jury to hear the evidence in relation to and in the context of the rest of the evidence rather than that we should give a judgment ourselves as to what the effect of such evidence would have been on a jury'."—[OFFICIAL REPORT, Standing Committee G, 11th March, 1964; c. 117.] I see a real danger here. As the law stands, the court will hear the evidence, decide whether there is a reasonable doubt, and if it finds that there is, quash the conviction. Now, with the power given under this Bill, the court may well adopt the practice of sending cases back for trial without actually hearing the evidence or even after having heard the evidence.
On Second Reading, the Home Secretary referred to a new Committee under Lord Donovan which the Lord Chancellor had appointed to review the whole procedure of the Court of Criminal Appeal. Why this power to order a new trial in criminal cases, restricted as it is to cases of fresh evidence, should be dealt with now—piecemeal, so to speak—I do not know. The number of cases to which it can refer is admittedly extremely small. According to the Home Secretary—these are his words on Second Reading— For more than 100 years there have been proposals of one kind or another for the introduction of some such power, but for just as long a time there has been dispute about the wisdom of doing so."—[OFFICIAL REPORT, 13th February, 1964; Vol. 689, c. 584.] I venture to suggest that there is still considerable doubt about the wisdom of doing so.
If a reform of that kind were contemplated, it ought not to have been introduced in this way. It should have awaited the detailed examination which Lord Donovan's Committee will give when reviewing the whole position of the Court of Criminal Appeal. I am sure that the Committee will pay due regard to the problems which will be raised by the Bill.

§ Mr. Brooke
The whole House recognises the sincerity of the position which the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) has taken throughout our proceedings on the Bill. He, for his part, will recognise that this is a Bill which has been criticised here and in another place both as going too far—that is his view—and as not going nearly far enough. All these criticisms have shown how right the Tucker Committee was in saying that on the subject of new trials there was a considerable divergence of opinion both among judges and among members of the two branches of the legal profession.
However, the Tucker Committee was unanimous that the Court of Criminal Appeal should have the power which the Bill provides to order a new trial on grounds of fresh evidence. The implementation of that recommendation cannot please everyone, I know, but it has been widely welcomed as a significant and needed reform.
The hon. and learned Gentleman himself will agree that the issues of principle raised by the Bill have been very fully considered by the House both on Second Reading and in Committee. As he indicated, the essence of the Bill is in Clause 1(1). All hon. Members who served on the Standing Committee will agree that the significance of almost every word of that subsection was thoroughly and scrupulously scrutinised.

§ Mr. Weitzman
Will the Home Secretary allow me to put just one final point? Will he tell the House why it was necessary to introduce this Measure piecemeal, particularly as it can affect only a very few cases? Why, having appointed a Committee to review the whole procedure of the Court of Criminal Appeal, could he not have left it until later?

§ Mr. Brooke
The Government had received a recommendation to this effect some years ago from the Tucker Committee. Indeed, we have been criticised for not implementing the Tucker recommendation. We received a further recommendation from a Committee of Justice not so long ago, and it appeared that opinion was steadily moving in favour of the Court of Criminal Appeal having the limited power to order a 722 new trial on the grounds of new evidence. The hon. and learned Member for Stoke Newington and Hackney, North will forgive me if I do not go over again some of the interesting and important points which he raised in AmendmentS which were not carried.
I said on Second Reading that it might well be that the availability of a power to order a new trial would lead the court to revise the principles as to receiving new evidence which it had hitherto found it necessary to apply. But the view was expressed by certain hon. Members, particularly by the hon. and learned Member for Northampton (Mr. Paget), that the court would have no power to do so. The Government's advice was that the court would not be bound by its previous practice in that way.
I knew of the interest which hon. Members had taken in the point and I therefore thought it right to consult the Lord Chief Justice about it. He has authorised me to say that, while it is essential for the court to decide what evidence it will treat as admissible, it is not bound by its previous practice as to the admission of evidence, and that it can and will review the practice in the light of the Bill, the governing principle being to ensure so far as possible that there has been no miscarriage of justice.
The Bill has thus had a direct and an indirect effect upon the work of the Court of Criminal Appeal. As the hon. and learned Member has indicated, it touches one aspect, and one only, of the law relating to criminal appeals, and the Government have recognised that the whole arrangements for criminal appeal, including the power of the Appeal Court, need comprehensive examination. It is that examination which is now being undertaken by the Committee which my right hon. and learned Friend the Lord Chancellor and I appointed under the chairmanship of Lord Donovan.
It appeared to the Government, however, that that it was not necessary to wait for the conclusion of the work of that Committee, which might take some time, before legislating on the matter. It appeared to us that opinion, both legal and other, had sufficiently crystallised in favour of giving the Court of Criminal Appeal this new power in the limited class of cases where there 723 was new evidence. It was on those grounds that the Government brought forward the Bill. I remind the hon. and learned Member for Stoke Newington and Hackney, North that the Bill was given a Second Reading without a Division, which was an indication that the House as a whole, although not necessarily satisfied concerning every detail about it, endorsed and supported the general principle underlying it.