HC Deb 05 August 1966 vol 733 cc938-44
Mr. Buck

I beg to move Amendment No. 11, in page 5, line 48, after "transcript" to insert "or such record".

The Chairman

Perhaps it would be convenient for the Committee to discuss at the same time, Amendment No. 13, in page 6, line 9, at end insert: and that he shall have access to any such record.

Mr. Buck

That would be convenient, Sir Eric, because they go together and relate to an admirable Clause which provides … for the making of a record (whether by means of shorthand notes, by mechanical means or otherwise) of any proceedings at assizes or quarter sessions in respect of which an appeal lies … The real purpose of the Clause is to make more readily available the tape recordings of the proceedings, and hon. Members who have had experience of court work will agree that it is right that the new criminal branch of the Court of Appeal should be armed with transcripts and that they should be available in the original oral form. We therefore welcome the Clause.

Bearing this in mind, the Amendment is designed to make it absolutely clear that the Court of Appeal can hear the tape recordings—as well as the Secretary of State; that comes under Amendment No. 13—which may be made under regulations made under the Clause. It is right, it may be thought, that the Court of Appeal should, in certain circumstances, hear the actual words uttered by the judge. We all know how, in the course of a judgment, words which can appear innocuous in type may have been delivered with a certain intonation which may be damaging and prejudicial. That is why, in certain circumstances, the Court of Appeal should be able to hear the actual words spoken. It may be said that the Clause as drafted makes this possible. If that is so, it is certainly not clear and the Amendment is designed to make it clear.

Mr. Taverne

I understand the purpose of the Amendment, and it was lucidly explained by the hon. Member for Colchester (Mr. Buck). If I ask the Committee to reject it, it is not because I am being obstructive or because we lack time. Nor was that the reason why I urged the Committee to reject the last Amendment. I ask for it to be rejected because it is unnecessary and could have some undesirable consequences.

If it were accepted, rules would have to be made for the supply of records to the court and other persons, records including both shorthand notes and tapes. This means that the parties could, under those rules, get the shorthand notes and the tape. If the tape is in possession of one of the parties, it could be falsified or, if not falsified, damaged in some way.

Under the present rules shorthand notes are never supplied to anyone except the court. Under the rules in the Criminal Appeal Act, 1907, it is stated in Rule 5B: Shorthand notes shall be taken of the proceedings … and on … appeal a transcript of the notes … shall be made if the registrar so directs … for the use of the Court … or any judge thereof: Provided that a transcript shall be furnished to any party interested … The aim of the rule is that the original records remain in official custody. The Amendment would have the undesirable effect of breaking this rule. It would mean that the shorthand notes and tapes could be put in the possession of the parties.

The hon. Member for Colchester explained that the Amendment would enable the parties and the court to hear the original tape, but there is nothing to stop provision being made under the existing rules for the tape to be played back by the proper officer of the court on the instructions of the court or that it should be heard by the court. Under Section 18 of the 1907 Act rules may be made to … regulate generally the practice and procedure under this Act … The hon. Gentleman will see, therefore, that what he seeks to achieve by the Amendment can already be achieved by the existing rules. He will also see that Clause 11(3) states: This Act, so far as it relates to appeals to the criminal division of the Court of Appeal, shall be construed as one with the 1907 Act". That means that the rules under Section 18 of the 1907 Act could provide the effect desired by the hon. Gentleman in his Amendment. The Supreme Court Rules Committee could make such rules.

I may be asked, "If the rules can be made for this purpose, why have Clause 6(1) at all?" The answer is that if express provision is made for particular rules, it is incumbent on the Rules Committee to make rules in this matter. Obviously the parties must have the transcript and, whether or not we make further provision in respect of tapes, that is something that can be left to the Rules Committee.

Mr. Buck

That does not appear to follow because Clause 6(1) merely provides that the … court may provide … a record … It is not mandatory. Does it necessarily follow that regulations must be made under the Clause?

2.0 p.m.

Mr. Taverne

The hon. Gentleman could argue that it is not absolutely essential but since certain rules are intended in the Bill itself it would be incumbent upon the Rules Committee to make rules dealing with that provision.

I do not think that there would be any undesirable side effects to Amendment No. 13, but again I do not feel that it is necessary. The Secretary of State has never yet had to call for the shorthand note but there is nothing to stop him asking for the tape. No rule prohibits his doing so because there were no tapes when the rules were made. Again, it might be asked—and in some ways it is a legitimate question—why there should be specific provision at all. In the past there were specific provisions about transcripts and hence there is a specific provision to that effect in this Bill. In almost all cases, transcripts will be sufficient but there is nothing to stop the Secretary of State calling for the tape.

Mr. Carlisle

The Under-Secretary of State has given an unsatisfactory answer. The Amendment is perfectly simple and would merely permit the Criminal Division of the Court of Appeal, if it thought it desirable, to listen to the tape recording of a trial. There is nothing in his point that this would mean that all the parties could have access to the tape. Clause 6(1) specifically says: … the … transcript of any such record and for supplying the transcript … to the registrar of criminal appeals for the use of the criminal division of the Court of Appeal or any judge exercising the powers of a judge of that division and to such other persons and in such circumstances as may be prescribed by the rules. If one is going to prescribe rules for the provision of the transcript or, as we say, the recording itself, surely one can prescribe the rules so that the record could be provided only to the Court of Appeal and to the judge and not to the parties.

Another confusing remark by the hon. and learned Gentleman—but perhaps it is my fault rather than his—was that there was no need to have rules for the Secretary of State because there were no tapes in existence at the time the previous rules were made and therefore the Home Secretary could, if he wished, call for a tape.

Mr. Taverne

There are no rules which prevent the Secretary of State getting the tape.

Mr. Carlisle

Surely the purpose of the Clause, as my hon. Friend the Member for Colchester (Mr. Buck) pointed out, is to make rules covering the use of the tape or transcripts from the tape. If one is specifically making rules for that purpose, surely it is better to make specific rules which would permit a tape to be provided to the court or to the Home Secretary.

I strongly support what my hon. Friend said about the merits. Time and again one has had the experience of saying to a judge in court, "I agree, my Lord. On reading the transcript it appears all right". But one knows at the same time that the important aspect was the intonation of the voice and the effect of the words.

One of the objectives of going over to tape recorders rather than the use of shorthand notes is not only the saving of costs in the use of shorthand writers but also that the emphasis given to words and the intonation with which they were used can be shown by playing back tapes. I regret that the hon. and learned Gentleman is not accepting the Amendment which, though of a minor nature, would assist the Court of Appeal and the Secretary of State.

Mr. S. C. Silkin

I hope that my hon. and learned Friend the Under-Secretary of State will look at this matter again. I feel great sympathy with what has been said by hon. Members opposite. If we are putting into a Statute certain provisions which supersede what may have taken place in the past, then, under the ordinary rules of construction, once that Statute is passed it will be assumed, from the fact that a particular power is not expressed, that it is intended to be excluded. Surely that will be the probable reading of this Measure in future, notwithstanding that a tape recording may be in existence. If there were doubt it would be desirable to set it at rest. This is an occasion when my hon. and learned Friend might feel it proper to accept the advice given by the Committee and think again.

Mr. Buck

I will keep the advice going a little longer while the Under-Secretary of State cogitates and considers the great wisdom of the hon. and learned Member for Dulwich (Mr. S. C. Silkin). The arguments deployed by the Under-Secretary of State were either arguments against having the Clause at all or concealed arguments really in favour of having a more complete direction about these matters. The hon. and learned Gentleman cannot blow hot and cold in this way. Either regulations are necessary, in which case they should cover all relevant matters, including what is suggested by my Amendments, or the whole Clause is superfluous.

As has been pointed out by my hon. Friend the Member for Runcorn (Mr. Carlisle), there seems no validity in the point about the parties getting the tape, taking it away, tampering with it and turning it into an inaccurate record. The regulations made under the rules of court in accordance with this Clause could provide for that circumstance.

The rules could provide that a tape supplied to any of the parties should be an oral copy of the original. Copies can be made of tapes. I am glad the hon. and learned Gentleman said that the consideration of tampering with the record did not apply to Amendment No. 13, which relates to the supply of advice to the Secretary of State. Nothing has been said which casts any doubt on the merits of the Amendments and I hope that the hon. and learned Gentleman will consider whether they could not be accepted.

Mr. Taverne

I am afraid that I cannot accept the Amendment. As the hon. Member for Runcorn (Mr. Carlisle) said, this is not a matter of great importance. I do not think that the point I made was without validity. Clause 6 suggests that rules should be made to provide for supplying the record to other persons apart from the Registrar … in such circumstances as may be prescribed … It suggests that the rules should be made for supplying it to those persons. This is contrary to the existing rules.

In reply to my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) I would say that, if the point he made had any validity, it would be a strong argument in favour of the Amendment but that it cannot have validity. He should look at the words of Section 18 of the 1907 Act, which are comprehensive. Section 18 says that Rules … may … be made … and may regulate generally the practice and procedure under this Act … It was these rules under which Rule 5B was made. There is nothing in the Amendments and I ask the Committee not to accept them.

Amendment negatived.

Amendment made: In page 6, line 9, at end insert: (3) The cost of making any such record in pursuance of the rules and the cost of making and supplying in pursuance of the rules or the last foregoing subsection any transcript ordered to be supplied to the registrar of criminal appeals or the Secretary of State shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of moneys provided by Parliament, and the cost of providing and installing at a court of assize or quarter sessions any equipment required for the purpose of making any such record or transcript shall also be defrayed out of moneys so provided.—[Mr. Taverne.]

Clause, as amended, ordered to stand part of the Bill.

Clauses 7 to 9 ordered to stand part of the Bill.