Amendment proposed, in page 5, line 27, at the end to add:
(3) The criminal division of the Court of Appeal shall receive new evidence if that evidence is relevant and credible and if a reasonable explanation is given for the failure to place it before the jury".
§ Question again proposed, That those words be there added.
§ 12.50 p.m.
§ The Under-Secretary of State for the Home Department (Mr. Dick Taverne)
When the debate adjourned, we were discussing this Amendment, which had been moved by the hon. Member for Colchester (Mr. Buck). The hon. Gentleman has told me that he has been detained and is, unfortunately, not able to be present now. At that stage, I said that we were unwilling to accept the Amendment. The Committee will be glad to learn that, on reflection, we have decided that the content of the Amendment would be extremely valuable, for the reasons which the hon. Gentleman gave.
As Mr. Henry Brooke explained on the Third Reading of the Criminal Appeal Bill, 1964, the practice of the Court of Criminal Appeal has already altered, and we think that there would be considerable merit in giving the alteration in practice statutory effect, as the hon. Gentleman suggested. However, his Amendment involves certain consequential changes. We would prefer to have rather different words, and my right hon. Friend has accordingly tabled a new Clause which we shall ask the House later to accept.
I understand that the hon. Member for Colchester would agree to this new Clause replacing his Amendment. I am extremely grateful to the hon. Gentleman and also to my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer) for the proposals which they made, which, we agree, will make a substantial improvement to the Bill.
§ Mr. Mark Carlisle (Runcorn)
On behalf of my hon. Friend the Member for Colchester (Mr. Buck), I thank the Under-Secretary of State for what he said about the usefulness of the Amendment, and I apologise on his behalf for his absence. As the hon. and learned Gentleman said my hon. Friend has been delayed.
On the last occasion, the Amendment was specifically declined by the Under-Secretary of State. Although we have in recent weeks had occasion many times to criticise members of the Government for completely changing their minds within a few days, this is one change of mind which is wholly welcome. Plainly, it is a change of mind, and it has occurred in about three weeks. That is slightly longer than the period taken for some of the changes of mind we have had from the Prime Minister and the Chancellor of the Exchequer, which seems to show that a little longer time to consider matters put forward from this side works in the end to the advantage of the Measure being discussed.
The proposal in the Amendment, now to be embodied in a Government new Clause, will improve the powers of the new Criminal Division of the Court of Appeal. Although the Criminal Appeal Act permitted the Court of Criminal Appeal to allow fresh evidence, the court itself had laid down various conditions which meant that one could submit fresh evidence only when one could show that it was not available at the time of trial. The Donovan Committee specifically stated in paragraph 133 of its Report that it felt that that interpretation had become too narrow and that the court should not be required to reject fresh evidence if reasonable explanation could be given of the failure to call it at the time of trial.
There are various reasons which may lead to evidence not being called at the trial. People who are not represented may not realise that a piece of evidence is relevant; or it may be due to a bad decision by counsel or solicitors which is later regretted when it becomes apparent that such evidence may well have had a bearing on the case.
§ May I say, before asking leave to withdraw—
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
Before the hon. 920 Gentleman asks leave to withdraw, may I be allowed to say something on this question?
§ The Chairman
It may assist the Committee if I say now that no one other than the hon. Member who moved an Amendment may ask leave to withdrawn it.
§ Mr. Carlisle
I am much obliged, Sir. Eric. I conclude by saying that it will be with great pleasure that this side of the Committee, and particularly my hon. Friend the Member for Colchester, will accept the Government's new Clause when it comes before us.
§ Mr. Weitzman
I am glad that the Home Secretary has now tabled new Clause No. 2, "Duty to admit fresh evidence", but I remind the Committee of what my hon. and learned Friend the Under-Secretary of State said when dealing with this matter on the last occasion:I am not sure that I agree with the hon. Gentleman that a failure to provide anything of this kind was, as he suggested on Second Reading, a failure to implement the Report of the Donovan Committee, because the Report is not clear …".—[OFFICIAL REPORT, 15th July, 1966; Vol. 731, c. 1994.]As a member of the Donovan Committee, I wish to point out that the Committee did not, as my hon. and learned Friend suggested, regard this as a matter which, in my hon. and learned Friend's concluding words on 15th July, "should be altered in practice". In paragraph 136 of its Report, the Donovan Committee said:We construe this as meaning that the Court will exercise its power to hear fresh evidence in such a way as to ensure that any miscarriage of justice will so far as possible be avoided or corrected. It will, we think, conduce to this end if the condition as to the evidence not having been available at the trial were discarded, and we recommend that additional evidence should be received, if it is relevant and credible, and if a reasonable explanation is given for the failure to place it before the jury.Recommendation No. 12 was explicit:The present practice of the Court in regard to the admission of fresh evidence in support of an appeal should be modified so as not to exclude altogether evidence which was available at the time of the trial. The Court should be willing to receive such evidence if it is relevant and credible, and if a reasonable explanation is given for the failure to place it before the jury at the trial.Clearly, the Committee did not regard it as merely a question of practice. 921 The Committee recognised that the court adopted that procedure in practice, but it is important that something should be put upon the Statute Book which makes the position quite clear. In these circumstances, I very much welcome the decision now made by the Home Secretary.
§ Mr. Peter Archer (Rowley Regis and Tipton)
I am grateful to my hon. and learned Friend and the Home Secretary for their open-mindedness and intellectual honesty in agreeing to look at this matter again. It demonstrates, as perhaps nothing else could, their determination to conduct the affairs of their Department with great care.
I hope that the hon. Member for Runcorn (Mr. Carlisle) did not intend to imply—I thought I detected the suggestion at one stage—that this was a matter which had at one time divided this Committee. It certainly did not divide us across the Floor. The hon. Member for Colchester (Mr. Buck) and I were very much of one mind about it when the matter last came before us, and my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) clearly took the same view. We are intensely grateful to the Government for reviewing the matter.
§ 1.0 p.m.
§ I should like to make one point, if I may, without appearing ungracious. Had I been invited to draft the Government's new Clause I should have preferred to leave the matter entirely to the discretion of the court rather than to introduce the requirement that the court should be satisfied that there was "a reasonable explanation" for the failure to adduce the evidence at first instance.
§ The Chairman
We are getting into the difficulty of discussing the Government's new Clause entitled "Duty to admit fresh evidence". In these circumstances, it might be convenient if we were to discuss the new Clause now and thereby avoid a debate on it later.
§ Mr. Archer
I am grateful for that indication.
922 Had I been invited to draft the Government's proposal, I should have preferred to leave the matter to the discretion of the court, because it will be a matter for the court to decide whether it would constitute a reasonable explanation for the failure to adduce the evidence at first instance that an accused person who was unrepresented had failed to appreciate the importance of the evidence or, if he were represented, that his counsel had been guilty perhaps of an error of judgment which, on reflection, he regretted.
Fortunately, this is not a matter on which we need to take a particularly firm stand. One hopes that the court, with its customary sympathy for honest human failings, will accept as "a reasonable explanation" matters of this kind. In those circumstances, I shall in due course ask for the leave of the Committee to withdraw the new Clause in my name.
§ Mr. S. C. Silkin (Dulwich)
I should like to say a few words in support of my hon Friend the Member for Rowley Regis and Tipton (Mr. Archer) and emphasise the point which he made that the division on the last occasion was certainly across the Floor but probably more between hon. Members opposite and the Government Front Bench. I am glad that we now have unanimity. I hope that the refreshing new willingness of my hon. and learned Friend the Under-Secretary of State to look at Amendments proposed will be reflected in the way in which he considers subsequent Amendments.
I, too, am concerned about the addition of the words in paragraph (b) of the Government's new Clause, although I appreciate that, in any event, it would probably not be possible within its drafting to omit either those words or similar words. I hope that my hon. and learned Friend will emphasise that the Committee, and I hope the House, would wish the term "a reasonable explanation" to be given a very liberal interpretation by the courts and certainly would not wish to place a person in the position of being prevented from calling fresh evidence in the Court of Appeal simply because he was wrongly advised, or felt that he was wrongly advised, by his counsel or solicitors in the court below. "A reasonable explanation" is a phrase which can 923 be construed in a strict or very liberal way. I echo the hope that the new Clause will be given a very liberal interpretation.
§ Mr. Taverne
I must bow to the view of my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) about the intentions of the Donovan Committee since he was a member of it. It was not clear to anyone who was not a member of the Committee from reading the Report whether it recommends that the present practice should be modified as a practice or by legislation. However, that is now an academic point.
The reasons for the new Clause have been sufficiently discussed. It provides that, subject to one condition, new evidence tendered to the court is to be received as admissible evidence if likely to be credible and if there is a reasonable explanation of the failure to produce it at the original trial.
Dealing with these provisions alone, it is clear that there must be something in the nature of an explanation of why the evidence was not called before. If this were not the case, an appellant could keep evidence back and produce it in the appeal court and have a second bite at the cherry. This would clearly be wrong. If provision is necessary, those words seem to me to be as reasonable as one could provide. It could be left to the court to interpret what "a reasonable explanation" was, but I echo the hope of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) that the courts will give it a liberal interpretation.
The condition subject to which new evidence can be received is that the court need not receive the evidence if, although it satisfies paragraphs (a) and (b) of the Clause, the court is satisfied that it would not afford any ground for allowing the appeal. This condition is necessary to protect the court from having to receive evidence when it is clear that the evidence, weighed against all the other evidence given at the trial, could not possibly call the conviction into question.
The new Clause is acceptable to the Lord Chief Justice who has confirmed that it reproduces the court's present approach. Consequential Amendments to 924 Clause 10 are required to apply the new Clause to Northern Ireland. Amendments are necessary to Schedule 1 to make similar provision for the Courts Martial Appeal Court. The fact that we have changed our mind shows how reasonable and ready the Government are on all occasions to make concessions if they are worthy concessions.
§ Amendment negatived.
§ Question proposed, That the Clause stand part of the Bill.
§ Mr. S. C. Silkin
I wish to say a few words about subsection (2) to which I tabled an Amendment which was not selected. I was delighted to hear the last remarks of my hon. and learned Friend the Under-Secretary of State. I am sure that the Home Office is most reasonable and very willing to listen to suggestions for the improvement of the Bill.
On Second Reading, I, together with others, drew attention to the difficulty which arises under subsection (2) by the use of the words "greater severity" and the difficult problems which it might create. In replying to the debate, my hon. and learned Friend dealt with the matter in c. 1144 of HANSARD for 11th July and recognised the difficulties, but suggested that the word "severity" is a general guide which can indicate to the court the intention of the legislature without tying its hands in an undesirable way. I should be the last person to wish to tie the hands of the court in an undesirable way, even if I were capable of doing so.
However, the court, when faced with wording of this kind which will certainly be of much greater importance having regard to the passage of this Clause than it has been in relation to former legislation, would welcome some guidance as to what is meant by "greater severity". I had hoped that the Amendment which I tabled, which was generally to the effect that it would always be of greater severity to deprive a person of freedom for a longer period, or a potentially longer period, might commend itself as a principle to hon. Members.
I am not in a position to move that Amendment, and in any event the drafting of it may not have appealed to my hon. and learned Friend. Now we are to have a Report stage—at least I take it 925 that we are—and if in due course the new Clause which is proposed is passed, with other Amendments, this will give the opportunity to my hon. and learned Friend to consider whether there might be some way of ensuring that the court obtains guidance in this matter, which I believe to be very necessary. I hope that the sort of principle which I have suggested will commend itself to my hon. and learned Friend.
§ Mr. Taverne
I am afraid that there are difficulties about the line which the hon. and learned Member has suggested. We discussed this difficult question about how "severity" is to be interpreted when considering one of the Amendments in Committee last time. If one places a rigid limit it might be difficult for the Court of Appeal, in certain circumstances, to substitute a period of borstal training. This can be dealt with only by leaving it to the discretion of the court. It is practically impossible to draw up a table of sentences. One can only leave it on the general basis, which the courts have had to interpret in the past, both in the original 1907 Act and under the Criminal Appeal Act, 1964.
§ Question put and negatived.
§ Clause ordered to stand part of the Bill.