JUSTICES AS JUDGES OF CROWN COURT

HC Deb 07 April 1971 vol 815 cc535-9

Mr. S. C. Silkin (Dulwich)

I beg to move, Amendment No. 3, in page 4, line 2, after 'peace', insert: 'and the circumstances in which a person concerned with any proceedings prior to the hearing by the Crown Court is to be disqualified from sitting in the Crown Court and the circumstances in which any hearing by the Crown Court is to be valid notwithstanding that any person sitting therein is disqualified'.

Mr. Deputy Speaker

With this Amendment, we are discussing Amendment No. 9, in page 12, line 15, Clause 14, leave out paragraph (e).

Mr. Silkin

The purpose of the Amendment is to clarify the position with regard to the right of justices of the peace who have taken part in proceedings in the lower court so far as the proceedings in the Crown Court are concerned related to the same matter, and to enable the rules of court to make provision for showing when and in what circumstances they are to be regarded as disqualified from sitting in the Crown Court and when and in what circumstances the hearing in the Crown Court is to be regarded as valid notwithstanding that a disqualified person takes part.

I moved an Amendment in Committee to Clause 5(1) which would have provided an absolute disqualification for justices who had taken part in earlier proceedings from sitting in the Crown Court. The Under-Secretary of State for the Home Department drew attention to the fact that Clause 14(2) makes such provision in the case of the hearing of appeals, and added that the practice would be the same whether the matter were before the Crown Court by way of appeal or otherwise.

My hon. Friend the Member for Bradford, East (Mr. Edward Lyons) rightly drew attention to an authority under which the Court of Appeal had held that a decision of the higher court could not be attacked simply because a practice was followed which the Court of Appeal considered undesirable, the chairman of the bench having sat as chairman of sessions.

The Under-Secretary of State, having promised on the earlier Clause to look into the matter again, expressed the view when we came to Clause 14 that the Clause dealt with this matter adequately because the first subsection gave a general power to make rules and the second subsection specifically provided for the making of rules in the case of the hearing of an appeal covering the matters to which reference had been made.

The hon. Gentleman may be right. But one has the curious situation, on the advice which he gave the Committee, that, in respect of matters other than appeals, one has the very general provision in Clause 14(1), which simply enables rules to be made for the purpose of regulating and prescribing the procedure and practice to be followed in the Crown Court, and that in Clause 14(2), which deals with appeals and contains a specific provision under which rules can be made in respect of the circumstances in which a person concerned with the decision appealed against has to be disqualified from hearing the appeal.

It would appear, at first sight, that the question of disqualification in the rules is to be limited to appeals and not to other cases, as the hon. Gentleman said was the practice.

8.0 p.m.

The purpose of the Amendment is to insert into Clause 5 at an appropriate point, namely, where it deals with the qualifications to be possessed by justices of the peace, the general provision in the same wording as now appears in Clause 14(2) relating to appeals, but covering all classes of cases before the Crown Court. That would enable rules to be made. If it were thought necessary to cover appeals or other matters before the Crown Court, or all matters before the Crown Court, it would introduce greater flexibility in/to the Bill. As we have been reminded on many occasions, the purpose of the Bill is to provide a flexible procedure or, if it is said that that is already done, to make absolutely clear that it is done without having to rely upon the possible doubt arising from the wording of Clause 14. It is for that reason that it becomes necessary to remove those words from Clause 14.

I hope that the right hon. and learned Gentleman will appreciate that this is simply a tidying up Amendment to remove any doubt whatsoever. I hope that he will feel able to acept the Amendment.

The Attorney-General

The effect of these linked Amendments would be to provide for the circumstances in which a justice is to be disqualified irrespective of the nature of the proceedings in the lower court.

There are three categories of case where it may be desirable for justices to be disqualified. The first is on appeal to the Crown Court. That is obviously the most important case. Though the rules will be a matter for the Rule Committee, the Government—I say this categorically—intend to ask the Rule Com- mittee to make such a rule under Clause 14(2)(e). That assurance was given by my hon. Friend the Under-Secretary of State.

There are and will be practical problems. The staff may not know which justice of the peace was sitting. We shall have to rely a great deal on the justices themselves drawing the facts to the attention of the staff when they see the papers. To deal with any accidental oversight, Clause 5(7) prevents any decision being questioned unless objection is taken at the time.

The second category—this again is what my hon. Friend said he would look into—concerns committals for sentence. My hon. Friend and I have together consulted about this matter. I give the categoric assurance that the Government intend to ask the Rule Committee to make a rule in that category of case also.

The third category is the committal for trial. This gives the most practical difficulty. There are many more committals for trial than there are appeals. This creates a considerable practical problem. One has also to consider that in committing for trial all that the committing justice is doing is deciding whether there is a prima facie case against the accused. Therefore, there is no strong ground of principle for disqualifying in that particular circumstance. Many committals under Section 1 of the Criminal Justice Act are automatic and the documents may not have been looked at by the committing magistrate. Nevertheless, no administrative action will be taken in regard to the third category. The first two categories have been covered by the undertaking to approach the Rule Committee. On the third category, instructions will be given to the Crown Court staff to take all practical steps to avoid committing justices sitting.

Mr. S. C. Silkin

Is the right hon. and learned Gentleman saying, regarding the second category, that the rules would be made under the general power of Clause 14(1) and that that is wide enough to cover these matters, notwithstanding the specific reference in Clause 14(2)(e) to rules of this character in relation to an appeal?

The Attorney-General

That was my understanding. Clause 14(1) provides: Crown Court rules may be made for the purpose of regulating and prescribing the procedure and the practice to be followed in the Crown Court. I am reminded that Clause 5(2) provides: Crown Court rules may, subject to subsection (1) above, prescribe the number of justices of the peace constituting the court on any hearing within subsection (1)(a) or (b) above, and may prescribe qualifications to be possessed by any such justices of the peace; and the rules may make different provision for different descriptions of cases, different places of sitting or other different circumstances". The House will appreciate that that has just been presented to me. I should, however, be wholly content that the rule could be made under Clause 14(1). It is certainly the Government's intention to ensure that the rule is made in the second of the three classes which I have mentioned.

In the circumstances, I ask the House to reject the Amendment.

Amendment negatived.