HC Deb 15 July 1966 vol 731 cc1949-64

1.40 p.m.

Mr. Antony Buck (Colchester)

I beg to move Amendment No. 1, in page 1, line 17, at the end to insert: and shall consist of the Lord Chief Justice of England sitting together with one Lord Justice of Appeal and one puisne judge of the Queen's Bench Division or of a Lord Justice of Appeal sitting together with two puisne judges of the Queen's Bench Division. This Amendment relates to and seeks to implement paragraph 85 of the Donovan Committee Report on the Court of Criminal Appeal, which is the main Report on which the whole Bill is based. This deals with the composition of the new criminal branch of the Court of Appeal. If I may set the background a little, paragraph 83 of the Report of the Donovan Committee recommends that the: Court of Criminal Appeal should be incorporated into the Supreme Court of Judicature. That recommendation is implemented in the Bill.

Paragraph 84 of the Report suggests the way in which the new Court of Appeal should be divided between a civil division and a criminal division. Similarly, this recommendation of the Committee is implemented in the Bill. Paragraph 84 also suggests that the new criminal division of the Court of Appeal should sit in three courts—two most of the time, with the third court sitting from time to time as the volume of work demands.

Paragraph 85 of the Report sets out the Donovan Committee's recommendations as to the composition of the new criminal division of the Court of Appeal. The paragraph provides that there should be a first court presided over by the Lord Chief Justice, assisted by a lord justice of appeal and one puisne judge from the Queen's Bench Division. It suggests that this court should be concerned principally with appeals, whether against conviction or sentence.

The Committee goes on to suggest that the second and third courts should be presided over by a lord justice of appeal assisted by two puisne judges from the Queen's Bench Division. It suggests that these other two courts should be concerned principally with applications for leave to appeal, whether against conviction or sentence, although all three courts would be armed with the same power to deal with all matters which are at the moment dealt with by the Court of Criminal Appeal.

It is a sensible recommendation that the new criminal division of the Court of Appeal should be constituted in the way set out in paragraph 85 of the Report. The reasons why this is a good recommendation are set out in later paragraphs of the Report. It is a good thing to have two judges of superior rank in the first court, because the bulk of the work of this court will be concerned with important questions of law and practice, and also often with questions involving the liberty of the subject, as, incidentally, will nearly all the work of the other two courts. This is the main reason for having the first court constituted of the Lord Chief Justice, a lord justice of appeal and a puisne judge.

The reason for having a lord justice of appeal presiding over the other two courts is to increase the prestige and the judicial standing of the new criminal division of the Court of Appeal. Further, these courts also will be considering very important questions of law and practice from time to time. As the Report of the Donovan Committee points out, the guidance of a senior judge will be both desirable and helpful.

The reason for continuing to include puisne judges as members of the court is that thereby the court will have the benefit of their very great experience in the day-to-day handling of criminal cases and in the day-to-day sentencing of offenders. Another advantage which is highlighted in the Report of the Donovan Committee is the advantage to the puisne judge himself, in that he will gain experience from sitting in an appellate capacity.

These reasons for so constituting the court should commend themselves to the Committee and should have widespread support. It is not absolutely universally accepted that this is the right constitution, but I think that Parliament will accept that it is right. Judging by what the present Lord Chief Justice and the Master of the Rolls have said in another place, it is certain that they will adopt the same attitude.

We cannot be certain that future lords chief justices will take the same view. It is possible that they would revert to the old practice of having three puisne judges sitting. A future lord chief justice might be impressed with the idea of having a wealth of practical experience available to deal with the day-to-day matters of sentencing and trial of offenders; such a lord chief justice might want the court to be constituted as it is now. I suggest that such a constitution is not right and that the court should be constituted in the way recommended by the Donovan Committee.

I raised this matter on Second Reading. The Under-Secretary of State dealt with the matter in winding-up. He said this: It would be very rigid if we said that there must be so many judges of a particular standing who were on a particular appeal. Questions of illness might arise. Of course questions of illness might arise. This is a hazard which confronts all courts at all times, but it is not a particularly major hazard. The possibility of an epidemic amongst the judges should not be dealt with by lowering the standard or calibre or status of the judges who sit in the new criminal division of the Court of Appeal. This is hardly an argument which will appeal to the Committee. The argument that it is necessary to lower the status of the court to keep pace with any possible flu epidemic which might arise is not worthy of the Under-Secretary.

1.45 p.m.

The Under-Secretary continued: It might not always be possible to have the Lord Chief Justice and a lord justice and a puisne judge hearing an appeal which is an appeal against conviction. So be it. The Donovan Committee does not recommend that of necessity these matters shall be dealt with by the Lord Chief Justice, a lord justice and a puisne judge. These matters could be dealt with, if these senior judges are not available, by the second court or the third court which I have already mentioned, and which are referred to in paragraph 85 of the Report of the Donovan Committee. The hon. and learned Gentleman's argument falls, because the question does not arise.

The Under-Secretary then said: A certain amount of flexibility must be allowed ". The hon. and learned Gentleman has not backed that up with any argument which appeals to me. He then said: The whole matter is amply covered by Clause I and it will be a matter for administrative arrangements to see how the Donovan recommendations will be dealt with in practice."—[OFFICIAL REPORT, 11 th July, 1966; Vol. 731, c. 1140.] Parliament should determine the way in which the Donovan recommendations are dealt with in practice and we should adopt this recommendation in statutory form, as we have adopted most of the remainder of the Report.

These are the arguments which have been advanced against laying down in statutory form the composition of the court. We may have some new ones today, I have not found the arguments so far advanced against it convincing.

I am perfectly prepared to concede that the wording of my Amendment may not be totally satisfactory. It does not deal with the question of the need from time to time for there to be a court constituted of five judges or more. It is an absolute scandal that there is not available to us in the House of Commons a team of parliamentary draftsmen to assist us in framing Amendments. I have held this view during all the five years I have been in Parliament. Although I am a lawyer, I do not hold myself out as an able parliamentary draftsman. I doubt whether the Under-Secretary would hold himself out in this way. It is a highly esoteric art and we know that back benchers make mistakes in the niceties of drafting. I put forward this Amendment in the hope that its spirit will commend itself to the Committee. It is that the recommendations laid down in the Donovan Committee Report should be implemented in statutory form, and if the Committee, as I think likely, is swayed by the force of this, we would ask the Government to undertake on Report to draft an Amendment which meets this point.

I should like to know what is the position of the Amendments generally which are now before the Committee. If the Committee is minded to accept the spirit of this Amendment, may I take it that the Government have not manoeuvred us into a position where there will be a substantial inconvenience and loss of this Bill for a prolonged period because the Committee wishes to accept this Amendment? I hope it will be possible to complete the various stages of this Bill by the end of this Session. If this is not the situation, something very disturbing will have arisen because the Government would then be saying to us, "We know you welcome the Bill. Everybody welcomes the Bill. Everybody wants to have it by the end of this Session, but we are afraid that you will not be able to have it by the end of the Session if you amend it." I hope the Government are not saying that, and I would welcome an assurance that the Committee has not been manoeuvred into a position such as have just outlined.

I think this Amendment makes sound sense, perhaps not in precisely the form in which it is at the moment, but it is sound sense that we should implement the Donovan Committee recommendations as to the composition of the court, just as we have in the remainder of the Bill implemented so many of the other Donovan Committee recommendations

Mr. A. J. Irvine (Liverpool, Edge Hill)

I cannot bring myself to agree with this Amendment. It would have the effect, as I understand it, that there could never arise the possibility in any set of circumstances or at any future time of a court of the Criminal Division of the Court of Appeal ever consisting of three puisine judges. That, I think, would be a consequence of the Amendment. I should have thought that to spell that out in the Bill would be to impose what, for practical purposes, is an unnecessary and undesirable straitjacket to the courts.

The second and third courts of the proposed Criminal Division will deal principally with applications for leave to appeal, whether against conviction or sentence. In these two courts important questions of law will admittedly arise from time to time, but the Report of the Departmental Committee points out that they will only occasionally arise. Sustained important issues of law will come before the first court in the Criminal Division where the Lord Chief Justice is sitting with another judge, and the two other courts in the proposed division, as I understand it, will be dealing with cases which, in the language of the Committee will only occasionally raise significant or important points of law. That being so, take the view that it would be quite undesirably inflexible not to permit a free discretion to the Lord Chief Justice to determine the constitution of the second and third courts of the criminal branch of the Court of Appeal, taking into account the circumstances for the time being.

Factors of illness are very relevant. The distribution of work at assizes, with the prospect of Lords Justices sitting at the assizes, are matters making it desirable that there should be a considerable degree of flexibility allowed for the manning of the second and third courts of the criminal branch of the Court of Appeal.

The Report of the Committee sets out as the purpose of its recommendation that the Lords Justices should sit in the criminal branch of the Court of Appeal to improve or raise the status of the courts. I fully understand that purpose and I agree with it as an objective, but I cannot really believe that the status and standing of the courts in the Criminal Division of the Court of Appeal will suffer at all if occasionally it happens that puisne judges are sitting together. They are judges experienced in criminal law. As I say, if they are sitting together on rare occasions in a court where only occasional points of law arise, it seems to me not to be a matter which will be in delegation of the status of the court, but a matter which it would be desirable to keep open as a possibility for administrative reasons and to take account of factors which may be relevant at any given time—factors of an enforcing kind making it desirable that that should be the constitution of the court.

Mr. Percy Grieve (Solihull)

I support my hon. Friend the Member for Colchester (Mr. Buck) in moving this Amendment. I hope that I shall be in order, not having had the opportunity of taking part in the Second Reading debate, in expressing my own sincere welcome to this Measure taken as a whole, and in adding my congratulations to the very many more distinguished congratulations which have already been given both to the noble Lord, the then Lord Chancellor, to the then right hon. Member for Hampstead in having appointed this Committee, and to the Donovan Committee for the great care which it has put into its deliberations and for the results of those deliberations which have now been largely enshrined in this Measure. One would like also to congratulate the Government for having brought forward this Measure, albeit perhaps having taken rather longer to do so considering that the Committee reported as long ago as August, 1965.

I support my hon. Friend for this reason. I am not one of those who criticise the present composition of the Court of Criminal Appeal. I believe that in saying that, I am very much at one with the members of the Donovan Committee who went out of their way to commend the work that has been done year after year by the members of the Court of Criminal Appeal, and with all those who took part in the debates in another place on this Measure as well as those who participated in the Second Reading debate in this House.

There is no doubt that the puisne judges have had the great advantage in the Court of Criminal Appeal of bringing to the deliberations of that court their great experience gathered on circuit and at the Old Bailey of the day-to-day administration of the Criminal Law. For this reason, at first I was myself inclined to think, as many others were, that there was really no cause for making a change in the composition of the court. In one way or another, I have for many years had experience of the operations of that court, and, in all humility, I would do nothing but commend its work.

As I understand it, the reason why a change in the composition of the court has been proposed is to raise the status of the court so that everyone may be aware that criminal appeals are treated no differently, or very little differently, from civil appeals and may be aware that judges of the status and standing of Lords Justices of Appeal are sitting in that court. With that argument, it being important that justice should not only be done but be seen to be done, I have no quarrel. Therefore, I welcome the change in the status of the court, with, as an incident of that change, the recruitment or appointment to it of Lords Justices of Appeal.

2.0 p.m.

The question then arises, should we in Parliament make sure that the Donovan Committee's recommendations are implemented in the letter? It is to that that the Amendment is directed because it does no more than enshrine the recommendation in paragraph 85 of the Committee's Report. The answer to that question, given by the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) this morning and given also by the hon. and learned Member for Lincoln (Mr. Taverne), the Under-Secretary of State, on Second reading, is based on the need for flexibility. Will it make the administration inflexible if paragraph 85 of the Report is made law? I see the force of that argument, but, as my hon. Friend the Member for Colchester said, the Amendment is not put forward as the last word in drafting. It would not pass the capacity of the Parliamentary draftsmen to insert as part of the Amendment a proviso that in certain circumstances the composition of the court should be varied but that as a matter of principle it should be as set out in the Amendment, the Lord Chief Justice of England sitting together with one Lord Justice of Appeal and one puisne judge …. or a Lord Justice of Appeal sitting together with two puisne judges ". If this Amendment to the Bill is not made, we shall, as regards the composition of the court, be acting like one who carefully dismantles a house and moves it, brick by brick, from England to America, re-erecting it on the other side of the Atlantic. The Court of Criminal Appeal is to be dismantled and re-erected as a division of the Court of Appeal. It is provided that in the new division, the new Court of Criminal Appeal, it shall be possible for lords justices of appeal to sit, but it is not provided that they shall sit. Thus, if I may continue my metaphor, the house re-erected on the other side of the Atlantic is very much like, and very little different in status from, the house as it was before. I submit that the Amendment meets the recommendations of the Committee and is worthy of the most serious consideration. I put it no higher than that.

May I end with a personal word to the hon. and learned Member for Lincoln? I should like to say how very happy I am to see him sitting where he is as Under-Secretary of State and to make my public congratulations to him. He and I have a friendship which is one of those friendships resulting from battle in the hard and fierce fires of a by-election. I am very glad to see him there.

Mr. S. C. Silkin (Dulwich)

I oppose the Amendment. I would not wish to add anything to what was said by my hon. and learned Friend the Member for Edge Hill (Mr. A. J. Irvine) but for the fact that my reasons for opposing it are almost the reverse of his. In my view, it is most undesirable that there should be forced on the appellate system a rigidity which would prevent it, if the occasion arose, from having two or even three lords justices sitting together to deal with a case which merited so high a judicial standard.

I find it difficult to believe that the incidence of sickness or other extraneous cause is likely to produce a situation in which it would be necessary or desirable that three puisne judges should sit in the criminal division. Sickness, of course, affects lords justices, but the Court of Appeal, although it calls upon a puisne judge from time to time, has never in my experience sat with more than two together with a lord justice. I cannot myself remember it sitting with more than one. One must not forget that lords justices are, in the ordinary course of events, puisne judges who have been promoted, They have, therefore, the very great experience that my hon. and learned Friend regards as being desirable in an appellate court on criminal matters, and, because of their ability, they have been advanced to the Court of Appeal.

In the circumstances, I should much prefer to leave the matter as it is in the Bill, so that, when a case merited a really high-powered court consisting, if necessary, entirely of lords justices or of the Lord Chief Justice and two lords justices, there would be no bar to such a court being gathered together to hear the case.

Mr. Mark Carlisle (Runcorn)

This has been a useful debate enabling us to discuss the whole composition of the new division of the Court of Appeal, which, of course, is the most important aspect of the Bill and constitutes its whole purpose. If one looks at the Donovan Report itself, one finds that the first purpose for which it was set up was to consider whether the powers of the Court of Criminal Appeal should be transferred to the existing Court of Appeal.

All the Amendment would do would be to put into legislative form the proposals made in paragraph 85 of the Donovan Committee's Report. The whole House will agree that in that section of the Report very good reasons are given for saying that the court should consist, first, of the Lord Chief Justice, a lord justice and one Queen's Bench judge, and second, of a court presided over by a lord justice. If the whole purpose of the Bill is to improve the stature of the criminal division of the Court of Appeal, it is important that a lord justice should always preside in that court. If we leave it open that the criminal division of the Court of Appeal may consist of three judges as at present, although we shall have passed a Bill the purpose of which is to improve the stature of the court in practice, its status and composition will remain exactly as they are now, and one may wonder, in that event, what purpose the Bill has achieved.

I do not know whether the Under-Secretary of State will say that the drafting of the Amendment meets the proposals of my hon. Friend the Member for Colchester (Mr. Buck). The opposition to the Bill, particularly that put by the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) has very little merit. As the hon. and learned Member for Dulwich (Mr. S. C. Silkin) said, it is difficult to see any situation arising in which all the members of the court of appeal are struck down with illness, and it is difficult to see why greater flexibility is required than is proposed in the terms of the Amendment, which enable the court to consist of any of the lord justices and any two of the many judges of first instance.

May I ask the Under-Secretary of State one or two particular questions about the composition of the court. I do it now rather than have to speak on the Question, That the Clause stand part of the Bill. I ask particularly how he envisages the proposal of the Donovan Committee as set out in paragraphs 89 and 94 of the Committee's Report. On Second Reading he said that he feels that the composition of the court is a matter for the administrative decision of the courts themselves. If one looks at the Donovan Report one sees in paragraph 94 that the Committee very strongly recommends first, that there should not be a permanent lord justice sitting on criminal cases, for to have one man sitting all the time on criminal cases is a bad thing, and secondly, that the lord justices assigned to the criminal division should change every few months. Does he envisage that happening or does he see the possibility of having a second permanent lord justice trying criminal appeals?

The other recommendation made is that we should draw the lord justices who are to sit in the criminal division from those members of the court of appeal who have existing criminal experience. I am sure that the Under-Secretary of State agrees that this is a very important recommendation since one knows that the courts of appeal as at present constituted contain members who have been judges in the probate division or judges in the commercial courts and who have not, as such, ever tried any crime on assize. It is envisaged that the recommendation will be carried out and that the lord justices who sit in the criminal division of the court will be drawn, as is suggested, from a panel of six or seven of the existing members of the court of appeal who have that experience.

The final point which I would raise on this issue is the proposal that those who are to sit in that capacity should be encouraged to go out from time to time either on assize or to the central criminal court to try crime throughout the country. This I believe to be equally important. I believe that the Under-Secretary of State will agree that it is important that the judges who are in charge of either of these courts should be in contact with what is happening in the criminal courts throughout the country, and they can get that experience only by going out themselves on assize. This will be a quite substantial change from the present position since I think I am right in saying that it is very seldom today that any lord justice, rather than the Lord Chief Justice, goes out on assize, and that is usually only to try civil work where there has been a shortage of judges due to illness or some other cause.

Will the Under-Secretary of State deal with these points? How far does he see these recommendations being implemented? I ask him to say that he accepts the spirit of the Amendment and that he proposes that the criminal division of the court of appeal should be constituted in the way that the Donovan Committee recommended.

2.15 p.m.

The Under-Secretary of State for the Home Department (Mr. Dick Taverne)

I certainly accept the spirit of the Amendment, because the Government and certainly myself accept the recommendations which were made in the Donovan Committee Report. I must, however, ask the House to reject the Amendment for the reasons which I gave on Second Reading and which I will elaborate a little now.

The Bill is deliberately silent on the question of how each court will be composed, and I think that it is silent for the good reasons which were given both by my hon. and learned Friend the Member for Liverpool (Edge Hill (Mr. A. J. Irvine) and by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), which were in a sense complementary. While one hopes to see the court or the courts constituted on the lines recommended by the Donovan Committee, there will be occasions when this is impossible, and it may be convenient occasionally for reasons of illness or of the absence of the Lord Chief Justice to have a court in which perhaps the Lord Chief Justice sits with two puisne judges or two lord justices sit with one puisne judge. Sometimes it is intended, in accordance with the recommendation of the paragraph 88 of the Donovan Report, that on a difficult point of law five judges will sit, and that would be precluded by the terms of the Amendment.

What would happen if the Amendment were accepted? First, it rather suggests that there would not be a third court, which is one of the specific recommendations of the Donovan Report. If the Lord Chief Justice were ill—and illness occasionally strikes even the highest in the land—only one court could sit, which would he very undesirable and very unsatisfactory. No court of five judges could sit. There is at the moment from time to time a spare lord justice who may go out and try cases at first instance, but it would not be possible to use this spare lord justice instead of a puisne judge who was ill.

I do not think that the argument about status is a very telling argument. Already by becoming the criminal appeal division of the court of appeal the status will be enhanced. If in practice most of the time when it is possible the recommendations of the Donovan Committee are adopted, the status of the criminal appeal division will be enhanced. But it is not necessarily a loss of status if, owing to the absence of one lord justice at a particular time, the Lord Chief Justice sits with two puisne judges, and it may well be desirable in certain cases to have more than one lord justice sitting.

It seems to me that these matters can safely be left to the Lord Chief Justice and the Master of the Rolls to man the courts at their discretion, and I think that we can expect them to take account of the Donovan recommendations and to implement them wherever possible. If it is thought that they could and would neglect the recommendations. that is not something which one can consider likely because it is in envisaged that under the powers of the Judicature Act, 1925, two lord justices will be appointed, and these will be lord justices with special criminal experience. If these two lord justices were there, it is quite inconceivable that they would not be used.

There are, in addition, some drafting defects to the Amendment, but I think that the observation of the hon. Member for Colchester (Mr. Buck) is fair: back bench Members cannot always be expected to draft with perfection. The word "or" suggests that at one time one can have only three judges of the criminal appeal division sitting. Under the Bill all the judges of the court of appeal and such puisne judges as are requested to sit will compose the criminal appeal division, and they can form any number of courts of three judges under Clause 2.

There were some additional questions —for example, what is the position about time and Amendments? If the Committee wishes to adopt an important Amendment, time will have to be found and it would no doubt be possible to see that the Bill is passed before the Recess. I would not deny that it would cause considerable inconvenience and would depend to some extent on what kind of Amendment it was, because there might be some Amendments on which further consultations were needed. I may have to make some remarks on this in relation to one Amendment already on the Order Paper.

I was asked by the hon. Member for Runcorn (Mr. Carlisle)—we are both here in a relatively fresh capacity—whether a lord justice will sit permanently in the criminal appeal division. I have no doubt that the Lord Chief Justice and the Master of the Rolls will again take into account the recommendations of the Donovan Committee. It is intended that continuity and consistency should be given to decisions of the appeal division —something that has been missing all too often in the past—and no doubt the Lord Chief Justice and the Master of the Rolls will consider the desirability of having one lord justice permanently concerned with criminal appeals and nothing else.

I have been asked whether the lord justices have been encouraged to go out of London. The same answer applies. No doubt the courts in their administrative arrangements will take account of the recommendations of the Donovan Committee. This is not a matter one can legislate about and I think that the Opposition recognise this. We cannot lay down precisely what administrative arrangements should be made; that is something that can safely be left to the courts. The same observations apply to the subject matter of the Amendment.

Mr. Buck

I am grateful to the hon. and learned Gentleman for what he has said. He stated that he accepts the spirit of the Amendment. I am surprised, therefore, that he does not take it away for the benefit of advice from the vast Ministry behind him, give it proper legal form and bring it back to the House on Report.

I was disappointed not to carry with me the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine). I found that his reasons for speaking against the Amendment alarmed me somewhat as they did the hon. and learned Member for Dulwich. The sort of circumstances which the hon. and learned Member for Liverpool, Edge Hill adumbrated, whereby three puisne judges will sit, is something against which the Donovan Committee has come down. It would not enhance the status of this new branch of the Court of Appeal. It is to prevent the honing down of the calibre and quality of the court that I put down the Amendment.

Mr. A. J. Irvine

I only want to emphasise that I would not regard it as desirable to have these three puisne judges in the Court of Appeal except on rare occasions. What I do not like about the Amendment is that it excludes the possibility for all time. J would not like anyone to think that I do not in principle agree with the desirability of Lord Justices in the court.

Mr. Buck

This is where the hon. and learned Gentleman and I part company. I do not think that there are circumstances where it would be legitimate to have three puisne judges sitting. I can envisage circumstances in which an appellant would feel aggrieved that his appeal had only been heard by three judges of the same status as the judge who sentenced him, because justice must be seen to be done as well as done.

In view of what has been said, and as I am conscious that the Amendment as drafted does not fully implement all the recommendations as to the composition of the court, I beg to ask leave to withdraw the Amendment.

Amendment by leave withdrawn.

Clause ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.