§ 10.15 p.m.
§ Mr. S. C. Silkin
I beg to move Amendment No. 40, in page 35, line 14, at end insert:'and in particular as to the circumstances in which the Crown Court may exercise its discretion so as to refuse costs to a successful defendant or appellant'.In Committee, the Opposition moved an Amendment to Clause 14 which would have enabled Crown Court rules to be made to provide for the practice to be followed under those provisions of the Bill which deal with costs and in particular to provide for an accused person who is acquitted, or whose conviction is set aside on appeal, in the ordinary way to be entitled to his costs, unless the interests of justice otherwise required.
As the Under-Secretary will recall, there was an interesting and valuable debate on that Amendment when the hon. Gentleman said:Out of the debate has come a feeling, expressed by my hon. Friend the Member for Orpington and by hon. Members opposite, that in practice people are not entirely happy about the way in which courts are exercising their powers to award costs to people who are acquitted."—[OFFICIAL REPORT, Standing Commitee A, 11 th February, 1971; c. 195.]582 That fairly summarised the view strongly expressed in the course of that debate.
The Under-Secretary went on to say that the matter was governed by a direction given in 1959 by the Lord Chief Justice and he said that he had been good enough to have informal consultations with the Lord Chief Justice who had intimated that he would be prepared to see whether previous statements made on the subject and the guidance which he had given required to be extended or clarified in order to make clear the uninhibited nature of the existing discretion. He went on to draw attention to some of the confusion which might exist by virtue of a footnote to Stone's Justices' Manual in the 1970 edition which might well be followed by benches of magistrates in particular.
What has emerged from what the hon. Gentleman told the Committee we do not yet know and he may well be able to give us further help on the matter. We now have Crown Court rules provided under the Bill. This is an extremely valuable departure, providing rules for the criminal courts as we have always had them in the civil courts. Under the Bill, directions are to be made by the Lord Chancellor or the Lord Chief Justice. Thirdly, we have intimations or statements which may be made by the Lord Chief Justice on matters such as those I have mentioned, and all of these are matters which in future will govern the way in which the courts act on matters which may well be of considerable importance, such as the discretion in the exercise of their power to award costs to a successful defendant or appellant.
It seems that it would be a more satisfactory way of dealing with these matters if wherever possible they could be dealt with by means of Crown Court rules, that is, even if the Lord Chief Justice were to make a direction, not in the sense in which it is used in the Bill, but were to give an intimation as to the way in which, in his view, the court should exercise its discretion, still, if possible, that should in due course be included in the Crown Court rules in the appropriate form so that the information is readily available and so that a court is required to follow it and if it fails to do so that might be a matter which could be dealt with by way of appeal.
583 In our view the Amendment fits into the wording of Clause 50 as it now stands which provides that:Crown Court rules may authorise the court to award costs and may regulate any matters relating to costs of proceedings in the Crown Court, and in particular may make provision as to—(a) any discretion to award costs.What the Amendment seeks to do at that point is to add:and in particular as to the circumstances in which the Crown Court may exercise its discretion so as to refuse costs to the successful defendant or appellant.It is put in that way deliberately so that it may be seen that if such rules are made they should set out the circumstances in which it would be right for the court to exercise its discretion to refuse costs rather than the other way round.
It is not essential that any such Crown Court rules should be made. This is merely intended to enlarge the ability to make Crown Court rules so that there is no doubt that they can be made on this important subject. We feel that by adopting this Amendment we have taken a compromise position which takes account of what the Under-Secretary said in Committee but which none the less enables effect to be given in Crown Court rules to any directions which may in future be made or which may be made as a result of the Lord Chief Justice taking another look at the existing direction as promised by the hon. Gentleman in Committee.
§ Mr. Carlisle
I appreciate that the hon. and learned Member for Dulwich (Mr. S. C. Silkin) has returned to this question of the award of costs to a defendant who has been acquitted. I am bound to point out that he is misconceived in thinking he can do it in this way since Clause 50 deals with party and party costs and not with costs out of public funds. Subsection (3) says:Nothing in this section shall auhorise the making of rules about the payment of costs out of central funds, whether under the Costs in Criminal Cases Act 1952 or otherwise, but rules under this section may make any such provision as is contained in section 48 above.We had a long discussion on this in Committee. I still feel, and I think that the hon. and learned Gentleman was 584 good enough to accept, that there is force in the argument and much to be said for leaving these matters to the discretion of the court.
I gave an undertaking that, in view of what had been said in Committee, we would consult the then Lord Chief Justice about whether the guidance he had previously given was adequate in achieving the intended object. We are now in correspondence with the Lord Chief Justice about the possible wording of a new statement. No difficulty has arisen in substance. The Lord Chief Justice expressed himself only too willing to consider the matter. We are discussing the appropriate wording of such a statement.
The hon. and learned Gentleman asks whether the statement, once made, should be incorporated in the rules. I do not know whether that would gain anything. It would be a practice direction given by the criminal division of the court of appeal. We all accepted in Committee that the real complaint was not that the discretion was left to the court nor that the ex-Lord Chief Justice had given guidance as to how that discretion should be used, but because we felt that it was being too sparingly used by the courts. I hope that the point will be met by the new lines of guidance given by the new Lord Chief Justice.
In view of what I have said, I hope that the hon. and learned Gentleman will feel that it is best to leave it there and to see what comes out of the consultations with the Lord Chief Justice.
§ Mr. S. C. Silkin
With leave, I should like to remind the hon. Gentleman of the case referred to earlier today and in Committee of the King v. Powell. A practice had been stated to be undesirable and yet, because there was no statutory provision to deal with the matter, the undesirability was not a ground for appeal. I suggest that in cases of that sort there might be grounds for considering whether a rule should be made. However, having put the thought into the hon. Gentleman's mind—and perhaps he will discuss it with the Lord Chief Justice—I am content to leave it there.
I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.