HC Deb 05 August 1966 vol 733 cc925-38
Mr. Carlisle

I beg to move Amendment No. 8, in page 5, line 32, to leave out from "subject" to the end of line 36.

This is a very short Amendment, the purpose of which is to widen still further the discretion given to the court in deciding whether to give a direction that the time spent in custody pending an appeal should not be reckoned as part of the sentence. As the Committee will know, Clause 5 as it stands changes the present position. At the moment time spent in prison awaiting appeal does not count towards the sentence unless the court makes an order that it should do so. As the Donovan Committee pointed out, this means in practice that, more or less automatically, people who make use of their right to appeal lose time,, normally up to a maximum of 63 days.

The recommendation of the Donovan Committee was welcomed by both sides of the House and has been implemented in Clause 5 in order to change the burden of proof on this issue. I would like to ask the Parliamentary Secretary why the Government, having decided to change the burden of proof on this matter but still leaving it in the hands of the Criminal Division of the Court of Appeal in its discretion to direct that time shall not count where the appeal is one which is clearly without merit and might be described as being of a frivolous nature, have felt it right to go on to limit that discretion in any way? It may be that even where leave to appeal had been granted, the circumstances would nevertheless be such as to lead the Appeal Court to say that the appeal was without any merit and that the time spent in custody should not count towards the sentence.

1.15 p.m.

I fully accept that, in practice, in such a case it would be very seldom that the court would have made an order giving leave to appeal. Merely because a thing is unlikely to happen or because it only happens on rare occasions——

Mr. Weitzman

Surely the hon. Gentleman knows that there are cases when the Court of Criminal Appeal has granted leave in order to increase sentence?

Mr. Carlisle

I appreciate what the hon. and learned Gentleman says, but that will now go because the power to increase sentence has been removed by Clause 4 of this Act. This Clause that we are discussing is saying that where leave has been granted by one judge of the court, on the basis that the ground of appeal is either against sentence or on a mixed question of fact and law, once that leave has been given, in no circumstances could the court ever count the time spent in custody as not being towards the sentence.

Although it is on rare occasions only that one can imagine the court wishing to use this power, the Parliamentary Secretary would surely agree that one can foresee a situation in which a man has quite deliberately induced the court to give him leave to appeal. When the appeal is heard it is plain that it is completely without merit of any kind. A man could arrange the granting of leave to appeal by putting in a statement or saying that there were various facts which he had not had the opportunity to bring before the court previously and which appeared to raise a question that this was a matter which should be considered by the Court of Appeal.

If that statement is not correct and the Court of Appeal was to find that there was no merit at all in the application, the court had been deliberately misled. It is in circumstances such as this that we feel that, since one has given discretion to the criminal appeal division of the Court of Criminal Appeal it should be completely unfettered in any way. It would be better if the lines dealt with in this Amendment were left out of the Clause.

Mr. Weitzman

I would oppose this Amendment very strongly. The three cases proposed to be left out are in my view cases where it would be manifestly unjust to make a provision of this kind. When leave is granted in the first instance, a judge has heard the case and granted leave. Once a judge has listened to a case and granted leave, it surely cannot be said that it is vexatious or an abuse of the court or it is wrong that the man should go on with his appeal if it turns out afterwards that the appeal is dismissed. A judge has taken the view that leave to appeal ought to be given and in my submission it should be wrong that a man should be penalised because of this.

I referred to the case when leave is given in order to increase sentence. That is something of a farce and leave to appeal ought to be granted only when a judge has taken the view that there is an arguable case. If there is an arguable case the man ought not to be penalised. The second instance referred to in Clause 5 is where a certificate has been given in Section 3 of the 1907 Act.

A certificate is granted because the trial judge finds that it is a fit case for appeal on any question of fact or mixed law and fact. It surely cannot be suggested that where a learned judge has taken the view that a certificate ought to be granted because there is an arguable case, that a man should be penalised for going ahead with his appeal. This is particularly so in regard to the third instance, where one has reference made by the Home Secretary under Section 19(a) of the 1907 Act. We all know that a reference will never be made by the Home Secretary unless there is a substantial point, some new evidence something new relating to the matter or something which in the view of the Home Secretary merits attention by the Court of Criminal Appeal. To suggest that in all three cases where there is clearly an arguable case to be put before the Court of Criminal Appeal the man should be penalised because he goes on is manifestly wrong and I hope that the Amendment will be rejected.

Mr. Carlisle

The hon. and learned Gentleman is wrong when he says that I suggested that the man should be penalised. I accept everything the hon. and learned Gentleman says, but is he not saying that he finds it difficult to foresee the type of circumstances in which the court, having given leave, would then make its direction that time should not pass? That I accept. For the reasons he has adduced, I think that he will agree that this power would be used very rarely but surely that is different from saying that the court should never have the power, if it had been deliberately misled into granting leave.

Mr. Weitzman

The court having given leave to appeal, or the trial judge having given a certificate, or the Home Secretary having referred the matter, there should be no question of the Court of Criminal Appeal having the right to penalise the man for pursuing the appeal.

Mr. Taverne

Of the various Amendments which have been moved, this is one of the least meritorious. I was asked why it was proposed to limit the discretion of the Court of Appeal. A simple answer is that it was limited before. Section 38(2) of the Criminal Justice Act, 1948, which provides that time waiting for appeal shall be disregarded, has a proviso which specifically says: the foregoing provisions of this subsection shall not apply where leave to appeal is granted under the Criminal Appeal Act, 1907, or any such certificate … has been given for the purposes of the appeal. The whole purpose of the Donovan Committee was that appellants should be in a better position and the Amendment would leave them in a worse position. For those reasons, as well as the difficulties mentioned by my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman). I hope that the Amendment will be rejected.

Amendment negatived.

Mr. S. C. Silkin

I beg to move Amendment No. 9, in page 5, line 38, at the end to insert: and no such direction shall be given unless the court is unanimously of the opinion that the conduct of the appellant in bringing or in pursuing the appeal has been vexatious or an abuse of the process of the court". As was made clear on Second Reading, there is considerable difficulty in the application of the court's power to order that a part of the sentence shall not be counted towards the total. The dilemma was clearly stated by my hon. and learned Friend in replying to the points which I made on Second Reading when he said: I think that there are difficulties about not having it in the way in which it is now proposed. The fact remains that some sort of deterrent must undoubtedly be provided against being utterly swamped by a very large number of appeals. There are a number of cases where people appeal simply because they wish to have the extra visits. This has been found by certain studies which have been carried out. There are a large number of cases where people do not appeal now because of the possibility of this happening"— that is to say, of their having to serve extra time. There is, therefore, extremely good reason for providing some sort of deterrent, even though one recognises that it is rather unsatisfactory."—[OFFICIAL REPORT, 11th July, 1966, Vol. 731, c. 1144–5.] That sums up the position very clearly. There is the dilemma that there will always be a few people who, because of the extra privileges which they get during the period when waiting for their appeal to be heard, consisting largely of extra visits and, I think, more power to write and receive letters, will appeal for that and no other reason.

At the same time, there are many cases when people are deterred from appealing because of their fear that as a result of their doing so their sentence will be longer than it otherwise would be. That fear, of course, will still be a difficulty, even though the effect of Clause 5 is to reverse the former procedure and to ensure that it is only by direction of the Court of Appeal that extra time has to be served.

As I pointed out on Second Reading—and in the intervening period this comment has been reinforced by action taken by the Court of Criminal Appeal in one or two cases which I have noticed—it is very often the case that people who on the face of it have a completely unmeritorious appeal are treated most leniently by the Court of Criminal Appeal. The other day, someone with a very long record of imprisonment, who had hardly spent a day of his adult life out of prison, appealed and the Court of Criminal Appeal took the view that, for the first time in his life, this man should have a real chance, and it therefore allowed him to go free, under supervision, from that time onwards.

It is that kind of case which I am most anxious not to deter from appealing. So long as we have any sort of sanction against the appeal which ought not to be made, so long will there be some people who as a result are deterred from appealing. I would sooner have no sanction at all, but I recognise the force of the argument that there must be some sort of sanction against the purely frivolous appeal which is induced simply by the desire for a certain amount of improvement, during a very limited time, in the living conditions of the appellant.

My view, therefore, is that the restrictions should be of the most minimal character, and it is in that sense that I have moved the Amendment. I suggest that the direction to increase a sentence should be given only, first, if the court unanimously thinks that it should be given, which is a very reasonable provision, and, secondly, if the conduct of the appellant in bringing or pursuing the appeal has been vexatious, or an abuse of the process of the court.

My hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) referred to these words as summing up what he thought ought to be the principle upon which the court should act. There would be no harm and much merit in making it abundantly clear through Statute that it is upon this principle and none other that the court should act when dealing with appeals which it may think ought not to have been made, but which in other circumstances, despite the apparent lack of merit, might well succeed.

1.30 p.m.

Mr. Archer

In supporting the Amendment moved by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), I seek to repeat an appeal which I endeavoured to make at an earlier stage of consideration of this Bill. I follow the argument advanced by my hon. and learned Friend the Under-Secretary on Second Reading that there are occasions when a prisoner seeks to obtain special privileges on the purely empty pretext of appealing, but this argument should be restricted as narrowly as possible.

The argument that where there is an acknowledged right, particularly where that right protects personal liberty, those who seek to exercise it should be penalised on the ground that it would be administratively inconvenient if too many seek to avail themselves of it is a principle which should be kept to the very narrowest limit. The practice of saluting a principle and then seeking to emasculate it on the ground that its progeny may be over-numerous can be carried to dangerous limits. It could be applied, and has in fact been applied, to every safeguard since Magna Carta, from Habeas Corpus and the right to petition the European Commission on Human Rights to the right in a police station to send for one's solicitor. I should hope that where it is to be invoked it should be invoked with the greatest possible reluctance.

The difficulty as I see it, when one is inviting the court to consider whether an appeal is without merit—I was a little perturbed when the hon. Member for Runcorn (Mr. Carlisle) earlier equated an appeal without merit with a vexatious appeal—when the court has to make this decision we are asking the very tribunal which has dismissed the appeal to go on to consider whether the appeal had merit. While clearly a court might arrive at different conclusions on the two issues there is always an element of predisposition where one has rejected an argument to come to the conclusion that no reasonable court could ever have entertained that argument. The two issues should be separated as widely as possible.

The purpose of this Amendment is to ensure that the two issues are separated completely. What the court would now be invited to decide is, not whether an appeal was without merit, but whether it was proceeded with purely vexatiously. For these reasons I support the Amendment.

Mr. Taverne

I appreciate the spirit of this Amendment. As I said on a previous occasion, this is a very difficult point, but I am afraid that the Amendment is not acceptable.

I think it is recognised by a number of people, although my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer) did not recognise it, that one must keep some deterrent against a wholly unjustified appeal with no ground whatever. If one did not do so meritorious appeals would be bound to suffer. Even if we had more courts sitting hearing appeals there would be such a flood of appeals if nothing whatever were to be lost by an appeal that those who had merit would find their appeals indefinitely delayed.

However, to avoid the injustice of lengthening a sentence in the case of meritorious appeals and invite the court to address itself to whether an appeal had merit the recommendation of the Donovan Committee was that the court of criminal appeal must give reasons and direct its mind to the merits of an appeal. This is provided under Clause 5(2). In my view this provides an adequate safeguard that in practice it will be only appeals without merit in which this kind of Order will be made.

The effect of this Amendment, as I think my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) admitted, would not be to restrict appeals without merit because the words: vexatious or an abuse of the process of the court probably mean that there can be no order if an appeal is brought for the purposes for which Parliament gave the right. If there were simply an intention to secure more visits that might be an abuse of the process of the court. If an appellant simply appealed because he wished to stay in London for a longer period that might be an abuse of the process of the court, but it would be something very difficult to prove. It is one thing to establish by means of sociological investigation as has been done in the past, and another to prove before the criminal appeal division.

Mr. S. C. Silkin

If that is the argument, I do not see how one is better off under the position in the Bill as it stands. What reasons is the court to give? If it is unable to say that in its view the appeal was brought simply in order to bring extra privileges, what sort of reason would it give? Would it simply say, "In our view this appeal is without merit"? If that becomes the practice it will create the very evil which we are trying to avoid.

Mr. Taverne

Obviously I cannot anticipate the way in which the court would express itself, but presumably the reasons would cover those cases where the appeal is regarded as being without merit. If one accepts the principle that appeals without merit must be discouraged as a necessary concession to keep the number of appeals under some sort of control, this is the kind of circumstance one must accept. If there were nothing to be lost by exercising one's right, undoubtedly there would be a flood of appeals.

There is a minor difficulty about the Amendment but I do not put stress on it. The word "unanimously" is wrong because the powers may be exercised by a single judge. The main reason why I must reluctantly resist the Amendment is to enable meritorious appeals to be more swiftly heard than if this Amendment were allowed.

Mr. Archer

Can the Under-Secretary say how it is proposed to deal with the difficulty mentioned by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) when he moved the Amendment that in many cases it is quite impossible to predict whether the court will hold that an appeal is unmeritorious? One may have a hardened offender who appeals to the court in mercy to give him one more chance.

Mr. Taverne

This must be left either to the judge or to the criminal appeal court. I realise that there will be cases in which someone thought he was justified and where the court and the judge will hold that is an appeal without merit and he will lose time. That is an unfortunate necessity, however, which one has to accept to prevent a flood of appeals.

Amendment negatived.

Mr. Carlisle

I beg to move Amendment No. 10, in page 5, line 38, at end insert but such a direction shall not, in the case of any appellant, relate to a period in excess of 90 days". Whatever the Under-Secretary may have said about the merit or otherwise of the last Amendment I moved, I hope he will agree that this is certainly not one without merit. I am sure the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) will accept that it is not an Amendment intended in any way to penalise people for making use of their right to appeal, because the purpose of this Amendment is exactly the opposite. While leaving in the discretion of the court power to make a direction where it feels fit, that due to the vexatious or unmeritorious nature of an appeal the time spent pending appeal should not count as sentence, the purpose of this Amendment is to say that that cannot be done in a way which would add more than 90 days to the sentence. The Amendment is specifically designed to limit the total length of the penalty which the appellant would be in a position to incur by reason of pursuing his right to appeal.

It is felt by those on this side of the House—I think the Under-Secretary conceded this on other occasions—that there is an obvious danger, or perhaps I should say, likelihood, that the passing of this Bill may lead to an increased number of appeals and the increasing number of appeals may mean that the delay in hearing in Bills which is already substantial may of necessity become greater still. It is wrong that a person should be unduly punished because he has pursued an unmeritorious appeal or because other people appealing has delayed his appeal. The average time now taken between conviction and the hearing of an appeal is about 18½ weeks. If that is the average time, obviously some appeals take considerably longer. Therefore, there are men in custody for perhaps up to five or six months awaiting the hearing of their appeal.

If the Bill leads to more appeals, that period may be enlarged still further and people may have to wait at least six months before appeals are heard. Prior to the introduction of the Bill, the length of time which a person could spend in custody and which did not count towards his sentence was specifically laid down by enactment. In Section 38 of the Criminal Justice Act of 1948, the time is limited to six weeks. Section 38 says: Subject as hereinafter provided, six weeks of the time during which any such appellant, when in custody, is specially treated as such in pursuance of rules made under section fifty-two of this Act, or the whole of that time if it is less than six weeks, shall be disregarded in computing the term of any such sentence as aforesaid: In the Second Reading debate, the Parliamentary Secretary said: It is only a limit of practice. If the hon. and learned Gentleman turns to the Criminal Justice Act, 1948, Section 38, be will find that there is no provision about 63 days or 42 days there either."—[OFFICIAL REPORT, 11th July, 1966; Vol. 731, c. 1145.]

Mr. Taverne

I realise that I was wrong about that. There is provision for 42 days.

Mr. Carlisle

I am glad that the hon. and learned Gentleman agrees that there is a clear statutory provision for 42 days.

Section 38(2) of the 1948 Act is specifically repealed in Schedule 7 of the Bill. The effect of repealing that subsection and the effect of Clause 5 of the present Bill is that, in those cases where the Criminal Division of the Court of Appeal makes a direction that the time spent in custody pending appeal should not rank towards the sentence, there is no statutory limit on the period between conviction and the date of the court's direction. In other words, the previous limitation laid down under the 1948 Act has disappeared. That is why we feel that the Amendment is necessary.

The hon. and learned Gentleman may tell me that there is an answer to this which I have overlooked, but the Amendment was felt to be justified as it attempts to set a limit on the time a person may be required to spend in custody on top of his sentence, merely because he has chosen to appeal. I commend the spirit of the Amendment to the Under-Secretary of State and I hope that he can accept it.

Mr. S. C. Silkin

Before the hon. Gentleman sits down, will he deal with one matter with which he has not so far dealt? Why is the limit 90 days? Would he not agree that the effect of putting in a limit of 90 days, when the present statutory limit in certain cases is 42 days and the limit in practice in other cases is 63, inevitably is that the court will tend to think that its power should be increased rather than decreased?

1.45 p.m.

Mr. Carlisle

I should have dealt with this question. Obviously, some figure must be imposed and we were trying to fix a figure which would not unduly limit the court's discretion. At the moment, if no figure is imposed, of course, the existing average time taken in hearing an appeal is considerably longer than 90 days. It does not mean that, if appeals are heard earlier, the time need be 90 days, but we say 90 days should be the maximum additional time which anyone should be required to spend. The hon. and learned Gentleman might say that 60 days or 40 days would be just as valid. I concede that the figure chosen must be an arbitrary one. This figure was taken on the grounds that it is three months.

Mr. S. C. Silkin

I am obliged to the hon. Gentleman for his explanation, but part of it seemed to suggest that the factor which the court might take into account in extending the period would be the length of time which the man, through no fault of his own, had to wait before his appeal was heard. That surely cannot be right, and I hope that this is not what the hon. Gentleman was suggesting.

Mr. Carlisle

There was no intention to encourage the court to use its power to penalise or to extend the power. All we are saying is that, as at present drawn, if no provision of this kind is put in, it may mean that more than 90 days are spent in custody pending the appeal. We felt that three months was a reasonable term.

Mr. Taverne

I concede that this Amendment is not altogether without merit. It is certainly well-intentioned, although the period of 90 days has a somewhat unfortunate connotation—"90 days in custody" in other places. I also concede straight away that I made a mistake on Second Reading. While not wishing to be dogmatic, in the light of the fact that I made a mistake before, I think that the hon. Gentleman is right in saying that a specific provision for 42 days will not be preserved.

Under the previous law, the Court of Criminal Appeal could direct that the period which should be discounted should be shorter or longer than six weeks. The reasons I cannot accept the Amendment are those given by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), in his questions. It may have the undesirable effect that, if a period is specifically mentioned, although as a maximum, it might lead the courts to suppose that this was the period which Parliament had in mind as reasonable.

If this is so, it might well mean that, in practice, those appellants who appeal without merit might lose a longer time than is the case at the moment. Although appeals take longer, on average, than 90 days, the time lost on appeal is normally still 63 days.

As drafted, the Clause seems an adequate deterrent in the difficult process of keeping a balance between the injustice of the lost time and the need to deter—a constant theme of a number of the Amendments. The Amendment might have the effect of tilting the balance too much on the side of injustice. For that reason, I would ask the House to reject the Amendment.

Mr. Antony Buck (Colchester)

I apologise for not having been in the Chamber for all the debate. I was disappointed in the hon. and learned Gentleman's response to the Amendment. He could go a little further in trusting the courts. There is no reason, if a maximum period is put on, why the court should at once regard itself as almost obliged to rule that the longer period would rank for sentence. I fail to understand that. This point could be made by a small alteration in the drafting. Perhaps by inserting the words "such a direction shall not in any event" we would indicate that this is very much a maximum period and would thereby give guidance to the court that it should not allow the full 90 days as a general rule.

The Amendment has great merit in bringing a further degree of certainty into the Bill. A person would know what he would, at worst, be up against. I admit that, while my name appears in support of the Amendment, I had doubts about the period of 90 days. However, as I said in an intervention, it could be 100 days—which might have an even more unfortunate connotation in the mind of the Under-Secretary—or any other figure. Perhaps, on reflection, the hon. and learned Gentleman will think that 60 days would be appropriate.

It is unfortunate that although the Government concede that this is an Amendment of considerable merit—while there may be minor objections to it—the House of Commons has been manœuvred into a position in which the Government do not have time in which to take the Bill away for reconsideration so that our suggestions which have merit may be fully considered and, perhaps, inserted in the Measure. Here is an Amendment which the Under-Secretary admits has considerable merit, yet he cannot do anything about it. I regret the hon. and learned Gentleman's response, although I have great sympathy with him in view of the position in which he finds himself.

Amendment negatived.

Clause ordered to stand part of the Bill.