Clause 8 (Hansard, 15 June 1972)

§ Mr. John Fraser (Norwood)
I beg to move Amendment No. 15, in page 6, line 26, at end insert: 'except upon the ground that in making such order the court so making it erred in law' Under the Bill as it stands, there is no appeal against the making of a bankruptcy order, whether on a point of law or a point of fact, although there is an appeal against the bankruptcy order when appeal is made against conviction as well.
Over the years, we have wisely allowed, almost without exception, for an appeal upon a point of law, and we have extended the principle of appeal on a point of law to the decisions of many tribunals, even down to such humble bodies as rent tribunals. It seems a regressive step, therefore, to oust the jurisdiction of the appellate courts in this case.
The case for the Amendment rests on the general proposition that there ought to be an appeal upon a point of law. Like everyone else, judges occasionally make mistakes, even on matters of law. One cannot say in advance what kind of mistake might be made which could give rise to appeal on a point of law against the making of a bankruptcy order, but here are two examples.
1938 First, the loss suffered may be manifestly less than £15,000, and a mistake might be made on that score. I know of a case in which the court made a mistake in thinking that it could make a restitution order. It was a prosecution under the Metropolitan Police Act, and the court had confused the provisions of that Act with the one involving damage to property. If the amount involved is manifestly less than £15,000, an appeal on a point of law should lie.
Second, no loss whatever may be suffered by anyone at the point when the sentence is given by the judge. There was recently a case of fraud in which the losses suffered were in excess of £15,000 when the case opened, but by the time the case had finished arrangements had been made by the defendant to repay in full all who had suffered loss. That fact could escape the notice of the court and, perhaps by oversight, a criminal bankruptcy order would be made. Here, too, I submit, there ought to be an appeal on a point of law.
It is no good to say that the defendant could explain to the registrar in bankruptcy that he had already paid everything off, and the registrar would not present a petition. That is not good enough. If a person against whom a criminal bankruptcy order is made is in business, for example, he will undoubtedly suffer some hardship, even though he has made restitution, by having an interregnum between the making of the order and the decision of the registrar not to present a petition.
It is curious that under Clause 29 the prosecution has a right of appeal on a point of law where the defendant has been acquitted. Under this Clause, on the other hand, the defendant has no right of appeal on a point of law against a decision when he has been convicted. This is a gross inconsistency. I am sure that it must be an oversight, and I hope that the Amendment will be accepted.

§ Mr. Carlisle
This is not an oversight as such. It was discussed in Committee. The Widgery Committee said specifically: …the order, which would constitute an act of bankruptcy, would not be open to appeal in the criminal courts, but could, if necessary, be questioned by the offender in the bankruptcy procedures in the usual way. 1939 It is hard to envisage circumstances in which an appeal against a bankruptcy order as such could be relevant, when there is already the power to order the conviction.
However, I wish to be friendly and helpful. I shall look at what the hon. Gentleman has said and, if he cares to advance any other possible types of errors on points of law which could occur against which a right of appeal would be some safeguard, I shall be prepared to consider the matter again in another place. But I must tell the hon. Gentleman that the Widgery Committee could not believe that any such right of appeal was necessary and, at the moment, I am not persuaded by what the hon. Gentleman has said.

§ Mr. S. C. Silkin
Did the Widgery Committee consider the question of an error of law? Certainly it considered the question of appeal.

§ Mr. Carlisle
I do not know whether it did. But it is difficult to see what error in law could occur. The hon. Member for Norwood (Mr. John Fraser) took the example of a case where the loss turned out to be below £15,000. Clearly this could be challenged in the bankruptcy, and no harm would seem to have been done. Indeed, some advantage might accrue to the victims of the crime, even if the amount lost turned out to be under £15,000 rather than over it. But if the hon. Gentleman thinks that there are circumstances in which an error in law could arise, I am prepared to consider any further details that he cares to supply me.

§ Mr. Fraser
In the circumstances, and in the hope of getting further concessions later, I beg to ask leave to withdraw the Amendment.