HC Deb 05 July 1973 vol 859 cc776-804

Amendment proposed: No. 1, in page 2, line 21, leave out Clause 2.—[Mr. Orme.]

Question put, That the amendment be made:—

Question accordingly negatived.

Mr. Whitelaw

I beg to move Amendment No. 2, in page 2, line 22, leave out from 'jury' to end of line 27.

I know that the House appreciates the reasons why I have left the conduct of this Bill in the immensely capable hands of the Law Officers and my hon. Friend the Minister of State, but I feel

House divided: Ayes 69, Noes 94.

Division No. 188.] AYES [6.13 p.m.
Archer, Peter (Rowley Regis) Golding, John Owen, Dr. David (Plymouth, Sutton)
Bishop, E. S. Grant, John D. (Islington, E.) Pannell, Rt. Hn. Charles
Booth, Albert Grimond, Rt. Hn. J. Parker, John (Dagenham)
Boothroyd, Miss D. (West Brom.) Harrison, Walter (Wakefield) Pendry, Tom
Carmichael, Neil Healey, Rt. Hn. Denis Prescott, John
Carter, Ray (Birmingham, Northfield) Heffer, Eric S. Radice, Giles
Cocks, Michael (Bristol, S.) Houghton, Rt. Hn. Douglas Rees, Merlyn (Leeds, S.)
Concannon, J. D. Janner, Greville Rodgers, William (Stockton-on-Tees)
Cronin, John Jones, Barry (Flint, E.) Ross, Rt. Hn. William (Kilmarnock)
Dalyell, Tam Jones, Rt. Hn. Sir Elwyn (W. Ham, S.) Short, Rt. Hn. Edward(N'c'tle-u-Tyne)
Davidson, Arthur Kaufman, Gerald Silkin, Hn. S. C. (Dulwich)
Davis, Terry (Bromsgrove) Kerr, Russell Silverman, Julius
Dell, Rt. Hn. Edmund Lamborn, Harry Skinner, Dennis
Duffy, A. E. P. Lawson, George Swain, Thomas
Dunn, James A. Leonard, Dick Tope, Graham
Dunnett, Jack Lipton, Marcus Wainwright, Edwin
English. Michael Lyon, Alexander W. (York) Wallace, George
Faulds, Andrew McAliskey, Mrs. Bernadette Whitlock, William
Fitch, Alan (Wigan) McNamara, J. Kevin Williams, W. T. (Warrington)
Fitt, Gerard (Belfast, W.) Marquand, David Wilson, Rt. Hn. Harold (Huyton)
Foot, Michael Mellish, Rt. Hon. Robert
Fraser, John (Norwood) Millan, Bruce TELLERS FOR THE AYES:
Freeson, Reginald Morris, Alfred (Wythenshawe) Mr. J. Harper and
Garrett, W. E. Orme, Stanley Mr. A. W. Stallard.
Gilbert, Dr. John
Atkins, Humphrey Holland, Philip Ramsden, Rt. Hn. James
Awdry, Daniel Hornsby-Smith, Rt. Hn. Dame Patricia Rawlinson, Rt. Hn. Sir Peter
Benyon, W. Hunt, John Redmond, Robert
Biggs-Davison, John Hutchison, Michael Clark Reed, Laurance (Bolton, E.)
Bowden, Andrew Irvine, Bryant Godman (Rye) Rees-Davies, W. R.
Bryan, Sir Paul James, David Roberts, Wyn (Conway)
Butler, Adam (Bosworth) Jenkin, Patrick (Woodford) Russell, Sir Ronald
Channon, Paul Jennings, J. C. (Burton) Shelton, William (Clapham)
Chapman, Sydney Joplin, Michael Shersby, Michael
Churchill, W. S. Kellett-Bowman, Mrs. Elaine Sinclair, Sir George
Clarke, Kenneth (Rushcliffe) Kilfedder, James Skeet, T. H. H.
Clegg, Walter Knox, David Sorel, Harold
Cooke, Robert Lamont, Norman Stanbrook, Ivor
Cooper, A. E. Luce, R. N. Stewart-Smith, Geoffrey (Belper)
Cormack, Patrick McMaster, Stanley Sutcliffe, John
Critchley, Julian Maginnis, John E. Taylor, Frank (Moss Side)
Crouch, David Marten, Neil Tebbitt Norman
Deedes, Rt. Hn. W. F. Mather, Carol Thatcher, Rt. Hn. Mrs. Margaret
Dixon, Piers Meyer, Sir Anthony Thomas, John Stradling (Monmouth)
Dykes, Hugh Mills, Stratton (Belfast, N.) Thomas, Rt. Hn. Peter (Hendon, S.)
Elliot, R. W. (N'c'tle-upon-Tyne, N.) Moate, Roger Turton, Rt. Hn. Sir Robin
Emery, Peter Molyneaux, James van Straubenzee, W. R.
Fenner, Mrs. Peggy Monks, Mrs. Connie Vaughan, Dr. Gerard
Fisher, Nigel (Surbiton) Neave, Airey Walder, David (Clitheroe)
Fletcher-Cooke, Charles Nott, John Ward, Dame Irene
Fowler, Norman Onslow, Cranley Weatherill, Bernard
Fox, Marcus Orr, Capt. L. P. S. White, Roger (Gravesend)
Green, Alan Page, Rt. Hn. Graham (Crosby) Whitelaw, Rt. Hn. William
Gurden, Harold Powell, Rt. Hn. J. Enoch
Hall, Sir John (Wycombe) Prior, RI. Hn. J. M. L. TELLERS FOR THE NOES:
Hastings, Stephen Pym, Rt. Hn. Francis Mr. Tim Fortescue and
Havers, Michael Raison, Timothy Mr. Oscar Murton.
Hawkins, Paul
Hayhoe, Barney

that the House will expect to hear from me personally why in this amendment we are seeking to reverse the decision made in Committee.

Indeed, I would say to the right hon. and hon. Gentlemen who served on the Committee that I would recommend such a course only if I was utterly convinced of the need for the provision as it originally stood in the Bill.

I know that the House as a whole wants to give every possible help to our security forces in Northern Ireland in their vital campaign against violence and terrorism. There is no difference between us on that. I accept at once that those who decide that they cannot support some of these measures are in no way weakening in their resolve to give our security forces every possible aid. At the same time, of course, I appreciate that the exceptional nature of the legal powers which we are seeking in this Bill properly raise doubts and anxieties, as they do in this particular case. It is against that background that I want to set out the reasons which led the Government to suggest in the Bill as introduced that the trials of scheduled offences should be by a single judge.

In this respect, the Government followed the recommendation of the commission chaired by Lord Diplock. The commission's conclusion in paragraph 39 was as follows: But we should in any event recommend trial by a single High Court judge or, in the less serious cases, by a single County Court judge, in preference to a collegiate trial. Non-jury trials in civil actions are always conducted by a single judge alone. Our oral adverserial system of procedure is ill adapted to the collegiate conduct of a trial of fact. In criminal proceedings, in particular, immediate rulings on admissibility of evidence and other matters of procedure have constantly to be made by the single judge when sitting with a jury. It would gravely inconvenience the progress of the trial and diminish the value of oral examination and cross examination as a means of eliciting the truth, if a plurality of judges had to consult together, albeit briefly, before each ruling was made.

These observations do not raise merely practical objections. They point to the fact that a court of three judges would mean a system quite foreign to the sort of court that we are used to in the trial of offences: a whole new procedure would have to be set up for such a court. Under our existing system a judge determines questions of law while the jury—with some guidance from the judge—determines questions of fact.

With three judges it would be necessary to provide for the way in which they were to reach their verdicts—for example, whether their decisions wen; to be unanimous or by majority vote and whether all or one of them would be responsible for decisions on questions of law. With a single judge the existing judicial system would remain the same except that the judge, rather than the jury, would determine questions of fact.

I do not in any way, however, wish to appear to be dismissing the criticisms of those who genuinely believe that a single judge should not determine questions of fact in trials of scheduled offences. I think those criticisms are basically on two issues. The first is that it would place too great a burden on the single judge to the extent that it might be unfair on the accused. I fully realise that no disrespect is intended by those who feel like this, to the impartiality of the judiciary in Northern Ireland. The point that is of concern is simply whether a single judge will reach the correct decision on matters of fact in these serious trials.

The second major criticism that has been made is that three judges would be less exposed to intimidation and the threat of intimidation than would be one judge.

Mr. English

The right hon. Gentleman said that it would be necessary to lay down the procedure whereby the judges arrived at their decisions. Can he, therefore, tell us why, in the last of the Irish Coercion Acts, which replaced juries with a commission of judges, no such provision was made? They simply worked on the normal assumption that they were to decide by a majority, and they carried on on that basis. It was not done the last time that juries were abolished in Ireland. so why does it suddenly need to be done now?

Mr. Whitelaw

The hon. Gentleman will appreciate that I would be unlikely to answer that question. The Attorney-General may be able to do so when he replies.

The Government have given the most careful consideration to these criticisms. First, on the fairness to the accused of trial by a single judge, it must be said that it is at least open to question whether a single experienced judge is less likely to reach a correct decision than a panel of three judges. I would concede at once that many people might feel that their trial had been fairer if it had been before a panel of three judges, but even here there is a problem. Some proposals for a three-judge court, for example, have suggested that a verdict should be reached by a majority. I can quite see that some people would find a verdict of two to one more disturbing than the verdict of a single judge. None the less, it would be unreasonable to argue that any man is infallible, and one must provide as far as one can for an error in judgment.

The Government have tried to guard against such an eventuality without creating a system which would be radically different from the one to which people—including the legal profession—are accustomed, and have concluded that the best way to remove any feeling that trial by a single judge was less than fair would be to provide for unrestricted rights of appeal against the decisions of a single judge. My right hon. and learned Friend the Attorney-General will explain in more detail precisely what is proposed by the amendment to give effect to this.

In general, however, the amendments which have been tabled by the Government will give to a person convicted of a scheduled offence before a single judge an absolute right of appeal to the Court of Criminal Appeal of Northern Ireland on any point of fact, law or mixed law and fact, and against sentence. The intermediate stages which normally have to be gone through—for example, by obtaining a certificate from the court of trial, or leave of the Court of Criminal Appeal—would be removed. In order to provide further safeguards for a person convicted before a single judge, the amendments would also require the judge to deliver a reasoned judgment so that the person convicted would have adequate and appropriate material upon which to base any appeal.

I believe these changes go a considerable way to meet the objections of those who have been uneasy about trial by a single judge and that they will remove apprehension that people being tried in this way are having anything other than a fair trial.

6.30 p.m.

As to the second criticism—the intimidation of judges—the Government have come to the view that there is no advantage to be gained by providing for more than one judge. The judiciary of Northern Ireland has been exposed to this problem for a long period of time, and there is no evidence to suggest that its decisions have been influenced in any way by such threats. Lord Diplock and the fellow members of his commission would hardly have recommended the trial of scheduled offences before a single judge had they received any suggestion that the judges were being influenced by intimidation.

I have not sought to deal with the very real practical difficulties that would arise were an attempt made to set up a court of three judges for the trial of scheduled offences. My right hon. and learned Friend the Attorney-General will, however, touch on this later. All I will say at this stage is that those difficulties would be grave in the extreme. The administration of justice in Northern Ireland is already pushed to the limits in dealing with crime and other matters arising out of the situation there. This includes the whole administration of justice, the judges, the legal profession and the courts. No Government can disregard the effect of putting that system under still greater strain at a time when the need to deal with crime quickly and fairly is more crucial than ever before.

It is my honest belief that the effect of these amendments would not in any way prejudice the fairness of a trial. I accept that there is a risk, however slight, in one judge determining questions of fact, as there is, of course, in his determining questions of law or sentences, as at present. But I would suggest that the relaxation which the amendments provide in the right of appeal should enable any error, should it occur, to be rectified.

In conclusion, I must stress again to the House that Lord Diplock and his distinguished colleagues, Professor Cross, Mr. George Woodcock and Sir Kenneth Younger, were convinced of the need for one-judge trials for scheduled offences in the exceptional circumstances of Northern Ireland today. Their view is also strongly reinforced by the Lord Chief Justice in Northern Ireland, who is not only a most distinguished judge but also has long experience of the conditions in Northern Ireland at first hand.

I realise the seriousness of a Government seeking to reverse a decision which was taken by the Committee but I hope I have shown the House, first of all, my own personal concern for taking this step, and, secondly, what I believe to be the clear concession we are making as far as the relaxation of appeals is concerned, which I believe goes a long way to meet many of the doubts previously expressed.

Sir Elwyn Jones

I venture to think that not only my hon. Friends but, it may well be, a number of hon. Gentlemen on the Government side will feel disappointed at the Secretary of State's decision, on behalf of the Government, to reverse the Committee's decision and to restore trial of the scheduled offences by a single judge. That decision of the Committee was reached after an excellent debate in which the weight of argument persuaded the majority of 13 members of the Committee against 11 to reject the single-judge proposal. There were powerful speeches emanating not only from the Opposition side of the Committee but from the Government side in support of the proposal that there should be three judges charged with the burden of responsibility for dealing with crimes which, after all, are the most serious crimes in the criminal calendar and those carrying the most severe sentences.

It is a matter of primary importance that the public in Northern Ireland should have confidence in the system of trial of criminal cases there and, indeed, all those connected with proceedings in the courts. We are of the opinion that the substitution of three judges for the single-judge proposal that is now made by the Government would go to strengthen confidence in the administration of justice in Northern Ireland. I believe, with respect to what has been said earlier in the debates in this Report stage, that it is important to emphasise that confidence and faith in the courts of Northern Ireland have survived even the near civil war through which we are passing.

That has been an important and crucial source of strength and cohesion in that divided community and, therefore, we must not meddle in or interfere with it in a way that would reduce that confidence. Those who supported what was decided upon in the Committee did so for the reason that it would be likely to create a tribunal more likely to inspire confidence in this critical field of the criminal law than would a judge sitting alone. The matters that were canvassed in support of that proposition were the following. First, a point was made most effectively by the hon. and learned Member for Darwen (Mr. Fletcher-Cooke), initially I believe on Second Reading, when he said that in a small, divided community not only are the religious allegiances of jury men well known but, unfortunately, the religious allegiances of judges are also known. He pointed out, and I respectfully agree with him, that with three judges the chances of one being of a different faith from the other two are high; and that in itself, in the unhappy state of mind of Northern Ireland, would be a source of strength for the tribunal.

The second argument in favour of having three judges is that this would tend to reduce the risk of judicial error. It is only right that the House should remember that the changes in the rules of evidence which are contained in the Bill certainly increase the risk of a wrong conviction, for the very reason that they reduce the opportunities available to a defendant to challenge the admissibility of quite a wide range of evidence; so that the risk of judicial error is inherently increased by the processes which the Bill will permit in these trials.

Accordingly, it is our view that three minds are less likely to fall into error than would be one judge sitting alone. When I say that, I do not in any way wish to suggest any lack of confidence on my own part or on the part of my hon. Friends in the competence, ability, impartiality and integrity of the judges. But this is a field in which the human mind and human judgment are fallible; and where the matters at issue are of such grave importance to the individual's liberty, we feel that the responsibility should rest upon three men rather than one.

The other factor which was referred to was the anxiety that many hon. Members felt about the exposure to danger and the vulnerability of the single judge having to decide these cases day in, day out.

It is perfectly true that those exercising judicial functions in places of danger are always somewhat exposed. But—without wishing to create any sense of alarm—never will judges have been exposed to the extent that they will be if what the Government propose in the Bill comes into force.

I ventured to put it in this way in Committee: There is the danger of the single judge, faced day in, day out, with the confrontation which will be involved in this kind of case, being isolated and identified, so making him far more an object of terrorist attack, and possibly more vulnerable than if he were making these grave decisions with other colleagues sitting alongside him."—[OFFICIAL REPORT, Standing Committee B, 15th May 1973; c. 117.] I can only admire the courage of the judges who have said that they do not want what we deem to be the additional protection which sitting in a trinity of three rather than alone would create.

The Attorney-General, in the impressive speech that he made on the jury system, called in aid, very rightly, the views of the men on the spot in regard to the jury question. I was impressed by the communication which I received from the Bar of Northern Ireland, to which I drew the attention of the Committee when we were discussing this matter. It was a resolution which was passed by 35 of 74 practising members of the Bar, done, as I understand it, on short notice. The Bar of Northern Ireland passed a resolution which, in effect, expressed the same views as those I have just adumbrated to the House.

The Bar of Northern Ireland put it this way:

First, The change from a jury trial to a single judge is too drastic and could undermine public confidence in the Court. Secondly, The three-judge court would spread the responsibility for decisions and accordingly reduce the risk of personal danger to individual judges. So the members of the Bar of Northern Ireland certainly think that that is a factor that those of us who are concerned with the protection of our countrymen who submit themselves to these risks, should bear in mind. Thirdly

The existence and efficient working of a three-judge Court in the Republic would reduce criticism of the change from jury trial here. As to the manpower question, about which I shall say something shortly, the Northern Ireland Bar expressed the view that Manpower difficulties should not be allowed to determine such an important issue. Those are the factors which led the majority of the Committee to the view that the interests of justice required a three-man tribunal of the kind which is now provided for in the Bill.

Two main arguments, as I understand it, were developed by the Government in Committee. These were referred to by the Secretary of State today. The first is that it would take more time. There was the strange reference to so-called "collegiate trials". When one bears in mind that most of the criminal trials in our own country are conducted on a so-called collegiate basis, that is a criticism which I find difficult to follow. Most magistrates' courts are involved in a collective decision, and sitting alongside judges in the Crown courts, dealing with crimes, we find that the so-called collegiate process is certainly not time-consuming.

6.45 p.m.

Mr. Whitelaw

The right hon. and learned Gentleman has referred to "the strange reference" to a collegiate trial. That reference was made by Lord Diplock and his commissioners and not by the Government.

Sir Elwyn Jones

I fully appreciate that. In Committee we had a lot of pleasure in regarding it as a somewhat curious ground for rejection of what is proposed, because in practice in a tribunal of three lawyers the presiding judge would determine the matters as they go along and control the proceedings. Those of us who have experience of the appellate courts and the Divisional Court, as many hon. Members have, see that the process of consultation which is involved is minimal from the point of view of expenditure of time.

In any event, time will be saved in the criminal trials by the elimination of the jury. So this is very much a featherweight argument. It is an inadequate reason balanced against the other factors that I have borne in mind.

On the manpower question I shall not traverse the ground again, but this should not be an insurmountable problem. If the members of the Bar, and, if necessary, the solicitors' profession in Northern Ireland, are called upon to assist in this work. I have little doubt that there is enough ability in the legal profession in Northern Ireland to man these courts on the lines that I have suggested.

I conclude with one political argument, also in support of the three-judge tribunal. It was made very effectively by the lion. Member for Dorset, North (Mr. David James) in Committee when he said that he was particularly impressed by the fact that the Republic of Ireland, in its special powers procedure, had three judges. He said that it would be a very unhappy day if anyone was able to say that Parliament in Westminster was less liberal than a neighbouring country in taking care of the liberty of individual subjects.

There it is. It is, at any rate, a factor to be borne in mind.

In our view a three-judge tribunal would inspire greater confidence in Northern Ireland, would reduce the risk of judicial error and, finally, would reduce the risk to the lives of the judges themselves who will face this heavy responsibility.

Mr. W. F. Deedes (Ashford)

As the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) observed, we had a considerable argument in Committee on this topic. I kept my mouth shut throughout those proceedings. I was, frankly, intimidated by the wealth of knowledge which was readily available from both sides of the Committee. There are moments when it seems best not to say anything. On reflection, however, and having read what learned counsel had to say, I am persuaded that there is just a corner for a lay point of view on this particular issue.

There were two main arguments in Committee. The first was whether we could find a sufficient number of judges if we had three judges where there was no jury. I was not much persuaded by that argument. It does not seem to touch a principle. It might be very difficult in the context of Northern Ireland to find a sufficient number of people, and I have no doubt that a good argument could be made, as it was by my right hon. and learned Friend the Attorney-General, but I do not find that convincing. It is not very important.

The second and bigger argument is whether the single judge may be considered competent to do what is required of him, whether we can trust a single judge to reach the right verdict, or, as the right hon. and learned Gentleman has just put it, whether we are less likely to fall into error when there are three judges rather than one.

That seems to be a very important issue and one which carries weight outside the Province of Northern Ireland. There is something very important at stake. I say this as a layman, not as someone who practises at the Bar. Lawyers are sometimes very shy at seeing the virtues of their own profession. I see considerable virtue in the respect attached to the decisions of a single judge. I perhaps see more virtue in that respect than do those who practise at the Bar.

The first objection is that of the vulnerability of one judge, a matter on which the right hon. and learned Gentleman touched. I accept that in Northern Ireland one judge is perhaps more vulnerable to the forces at large than three would be. However, when I think about it I am not totally convinced that that is a persuasive argument. So much irrational conduct goes on in Northern Ireland that I am not persuaded that one judge out of three might not be singled out.

The second argument is whether there is not just an element of mistrust in the capacity of a single judge without a jury to do what is required of him. In a sense, my point is a very simple one. I do not want to repeat it too often. I simply offer a lay voice to defend the capacity of the single judge, even in the peculiar circumstances of Northern Ireland.

I take the point made by my right hon. Friend when he moved the amendment that we could give rise to an almost unrestricted right of appeal against the decision of a single judge if we allowed this to go too far. I am concerned about the likelihood of undermining the capacity of a single judge, not merely to reach a verdict without a jury, which is what this is about, but even to sentence when a jury is present at the trial.

There are arguments advanced—I think that hon. and learned Gentlemen will support me—to the effect that sentencing would be better done by a sentencing court than by a single judge. This is an issue which could have repercussions outside Northern Ireland and perhaps rather greater repercussions than we now think. I am not persuaded that a sentencing court would be an improvement on our present system.

We live in a world in which there is a growing reluctance to accept a decision by an individual sitting in almost any capacity. Where any decision has to be reached, it is broadly concluded that a committee is the safest instrument for finding the right solution. If that fails, we have sub-committees. We are in this sense very collective-minded. The right hon. and learned Member spoke of the collegiate system. There is also something called the collective system—the belief that six men will automatically produce a better answer than one man thinking about the problem. I am not persuaded that this is a very good thing.

The judge remains now almost singularly in our national life a lone eminence. It is difficult to think of any corresponding figure who has such a lone eminence. In some eyes—I think that hon. and learned Members, even those on the Opposition side of the House, will agree—he is almost anomalously so. To many people it is not a convincing place for a single man now to be. I think that that view would be strengthened if the Bill went forward as amended in Committee.

This is a prime example of where the singular difficulties of Northern Ireland to which we are applying our minds could react on us. We would not be immune from the conclusion reached in this matter. I am sufficiently reactionary as a layman to wish to continue to repose my trust in the work of a single judge. That is an indivisible principle. That is why I support my right hon. Friend the Secretary of State.

Mr. Gerard Fitt (Belfast, West)

We had a long discussion in Committee on this important matter. I hope that all hon. Members have read the report of the proceedings in Committee. We regard the Government's decision to abolish the jury and to substitute therefore one judge as of paramount importance. Many hon. Members on the Government side expressed their doubts. The hon. and learned Member for South Fylde (Mr. Gardiner) said that he did not like the legislation and that he hoped it would not be a dress rehearsal of events which could take place in this country at some future time.

We heard the other argument advanced by the Attorney-General that in this country one judge was able to adjudicate in important cases and that, if it was good enough for this country, it should be good enough for Northern Ireland. We heard other arguments advanced by Government spokesmen to the effect that the sole reason for this legislation was the emergency situation and political atmosphere existing in Northern Ireland.

The Government cannot have every argument. Either there is an emergency situation in Northern Ireland which merits this type of legislation—legislation which will not have to be applied in this country—or in the existing circumstances the judicial system as it is known in this country should be made applicable to Northern Ireland.

We have heard Lord Devlin's defence of the jury system. As I said in Committee, it is interesting to conjecture what would have appeared in the report on detention of terrorists if Lord Devlin had been chairman and not Lord Diplock. I do not think we should have had a proposal to abolish the jury system. Even if Lord Devlin had been forced into taking a decision, he would not have agreed to the substitution of a judge and 12 men by one judge. Lord Devlin, with his respect for the jury system, would have recognised that such a dramatic step as the abolition of the jury system in any circumstances should be accompanied by other measures to ameliorate its effect.

That is why I had thought that the Government, having listened to the arguments which were advanced in Committee by Opposition Members and some of their own back benchers, would conclude that they had achieved something of a victory in the abolition of the jury system and would be prepared to accept the proposal for three judges instead.

I must point out that one judge will be in a very vulnerable position. He will have no social life if he is put into the position of daily trying this type of case. For him to have any social life, he will have to be accompanied by members of the security forces. In such circumstances it is a very onerous responsibility to place upon the shoulders of one person.

I was hoping that the Secretary of State would express some reason for thinking that the system in the Republic, which has three judges, had failed. I do not say that I support the system in the Republic. I am voting against all this legislation tonight. I have no time for it. I have made my position clear repeatedly. However, with the across-the-border relations and talks which are now taking place, I have not heard the Government raise any serious objection to the special criminal courts as they are now constituted in the Republic.

7.0 p.m.

In trying to justify his proposal to reverse the decision made in Committee, the Secretary of State has promised to move an amendment at a later stage which will give an unrestricted right of appeal to those found guilty. That may sound reasonable, but Clause 3 places restrictions on the granting of bail and, even though an unrestricted right of appeal might be written into the Bill, it could mean that a person who was found guilty and given that unrestricted right would be refused bail because of the provisions of Clause 3 and might be incarcerated for up to a year. At the end of that period he might be found not guilty, but he would have spent a year in gaol without compensation.

I can see no valid reason why the Government should attempt to reverse the decision taken in Committee. Many Conservative Members were happy to accept three judges. They expressed their concern and opposition at the abolition of trial by jury. The proposal put forward in Committee was a compromise between the abolition of the jury and the substitution of one judge in its place. Eminent Conservative Members of the legal profession who were members of the Committee were prepared to accept this compromise, but the Government, for reasons which I fail to understand and which will not be understood in Northern Ireland, are determined to steamroller the amendment through in order to reverse the Committee's decision. I cannot understand the Government's attitude on this and I cannot accept their justification for it. It will not be accepted in Northern Ireland, and I intend to vote against the amendment.

Mr. Charles Fletcher-Cooke (Darwen)

When I attempted to come to the rescue of the Government in Committee, my help was not altogether welcomed. I said that my right hon. and learned Friend the Attorney-General had not persuaded me on the principle of the matter, but he said that he had gone to endless trouble and labour in an attempt to see whether sufficient judge-power could be produced to match the requirement of the Committee that no less than three judges should serve at these important trials. He was most persuasive on the question of numbers. One could see from the poll conducted by the members of the Northern Irish Bar that the catchment area is small. Only 35 members voted. We all know that in any Bar in any country there are probably—

Mr. Fitt

A lot of drunks.

Mr. Fletcher-Cooke

There may be a lot of drunks, but that was not my point. My point is that there are a lot of people, probably 50 per cent. of the members, who are called to the Bar and are nominally members of it but who have not practised for years. There are many like that in the Bar of England, the Bar of Scotland and, no doubt, also in the Bar of Northern Ireland.

Mr. Stallard

And in Annie's Bar.

Mr. Fletcher-Cooke

If the total number of the Northern Irish Bar is 70, it is clear that the number of practising barristers must be considerably less and the number of 35, or perhaps up to 40, strikes me as being probably the effective Bar of Northern Ireland.

Consider the effect on the administration of justice if the three judges had to deal with all scheduled offences. No doubt they could be found for the work, but the effect on the trial of nonscheduled offences, still by far the greatest part of the criminal work in any province, in spite of the troubles in Northern Ireland, would be most serious and the effect on the trial of civil actions, which always take the lowest priority in these matters, would surely be disastrous. I imagine that, with the amount of damage and personal injury which is at present rife in Northern Ireland, the number of cases dealing with claims for damages, for personal injuries and for damage to property about and beyond the normal civil actions in a community must be enormous.

Therefore, as a matter not of principle—because I am not persuaded on the principle—but of practice, the administration of justice might break down if the Bar and the bench were denuded in order to provide three judges for the trial of scheduled offences. I imagine that the trial of these offences will be considerably increased once the Bill is passed.

In these circumstances, there is nothing that can be done except to plumb the depths—that is a rude word—or to scrape the barrel—that is ruder still—of the solicitors' profession. Even there the same arguments apply because of the tremendous strain on solicitors' offices, and, therefore, the only reserve is the Bar of England. We have never heard why that is not a possible catchment area. I am not in the market for the work, nor, should I think, are any right hon. or hon. and learned Members of this House. It would be a most disagreeable task, a most responsible and most honourable one. It may be that there are reasons, either psychological or technical, why the English Bar could not be used, and I hope that my right hon. and Learned Friend the Attorney-General will explain.

The reason for my vote in Committee and the reason I expect, though not firmly, what my vote will be tonight is that I do not want to see a strain put on the machinery and structure of the legal system in Northern Ireland so soon and so drastically as the numbers suggest will happen.

It is all very well to say that three judges sit in the special courts in the Republic. The reservoir of legal manpower in the Republic is far greater than it is in Northern Ireland. I do not know how many members there are in the Bar of Dublin, or of the Republic, but I imagine that the total runs into hundreds. There is a far greater reservoir of manpower there than there is in the 35 or 40 members of the Northern Ireland Bar who are, for all practical purposes, the only possible reservoir in Belfast.

Mr. S. C. Silkin

The hon. and learned Gentleman has made the point a number of times about 35 out of 40 effective members of the Bar being a high proportion, if the figure of 40 is correct, who thought that this could be done. But is there any reason for thinking that, however many practising members of the Bar there may be in Northern Ireland, their number does not as reasonably equate with the work in Northern Ireland as the number here equates reasonably with the work here? If there is no reason for thinking that, why should one assume necessarily that this process will impose an undue strain?

Mr. Fletcher-Cooke

The reason is that with small numbers every individual counts far more than when there are hundreds or, as we have here, thousands. If there are 35 or 40 members the abstraction of 10, or whatever number may be necessary, is a serious diminution, particularly as their work is now increasing and will increase rapidly each day after the Bill is passed.

The number of cases which will he dealt with as a result of the Bill will be much greater and the trials will be infinitely shorter. Jury trials take much longer than trials in which there are only judges, whether there is one judge or three judges. Therefore, the activity rate of the Bar, in Northern Ireland will be stepped up enormously. If at the same time its numbers are substantially reduced, there will be grave danger of a breakdown.

I have thrown out a life line to the Government, but they seem disinclined to take it. I hope to get from my right hon. and learned Friend some confirmation of what I am saying. If he continues to say how much better trial by law and fact is by a single judge rather than by a judge and jury, and that one judge is ideal and three judges are wrong, my vote is in jeopardy.

The Attorney-General

I seize the lifeline which has been flung out so gracefully by my hon. and learned Friend and I tug on the other end, hoping that I may tug sufficiently to pull him into the correct Lobby when it comes to the Division. I am sorry that he in any way thought his support was being rejected. I fully support what he has said. He was only attracted by the matter of practicalities and the practical administration of justice, which I place immensely high because it has to be carried out by the judges who must do the duty which the House imposes on them. As my hon. and learned Friend has pointed out, the Bar in Northern Ireland is a small one. Two-thirds of the Bar have been called since 1969, and so they have not had much practical experience—there is only one silk who took silk before 1964. If they were sitting with a High Court judge on matters of this kind they would not have a great deal of experience to contribute.

7.15 p.m.

These members of the Bar are much overstretched in that they are being used a great deal in prosecuting and defending. Twenty-three members appear for the prosecution out of the 25, made up of 17 Queen's Counsel and eight junior counsel. It would be wholly wrong, particularly with the provisions of the Bill, to deprive accused persons of the services of the best members of the Northern Irish Bar. They must be available and free to defend. Therefore, we cannot invite them to sit on the bench.

Similarly, solicitors with practical experience of criminal matters have their important duties to perform. In the present climate in Northern Ireland, it would be impossible for them to be sitting on the bench part of the time and then interviewing clients and representing them in criminal matters.

Therefore, on the matter of administration and practicality, my hon. and learned Friend is wholly right. The need is for civil cases still to be tried. Important matters with regard to personal injury are to be decided. There are about 20,000 county court cases pending and about 1,285 High Court cases under civil jurisdiction. It is important that they should be dealt with.

I hope that my hon. and learned Friend will forgive me if, having corralled him, I turn to some of the other matters which have been raised. As my right hon. Friend the Secretary of State pointed out, what

we are considering is a trial by one judge alone, but one in which there are considerable additional rights of appeal. Under Amendment No. 3 there is to be provided appeal on any ground where a person has been convicted on trial by a judge alone, without leave of the court, and without leave of the Court of Appeal, a right to appeal on matters of law, of fact and of mixed law and fact. Therefore, effectively, four judges will consider the issue of the guilt of the accused.

The Lord Chief Justice proposes establish by direction that there will be a system of practice directions. A judgment will be given which will analyse the counts, set out the special directions, analyse the Crown's case and the defence case, set out broad findings of fact and the conclusions drawn from those findings, and then the verdict. That gives a convicted person on appeal a position of far greater advantage than he has if he is appealing from the verdict of a jury, because the verdict of a jury merely expresses guilt. It is never possible to discover the reasons for it and the facts the jury found which made it come to its conclusion. The three judges of the Court of Appeal will be able to examine the evidence on which the single judge has come to his conclusion, and be able to reverse it if they think he has made an error. My right hon. Friend places the greatest importance upon the appeal.

I commend the pithy but very wise speech of my right hon. Friend the Member for Ashford (Mr. Deedes), who paid our profession some compliments which we are unused to hearing in the House from laymen, by speaking of the confidence which is placed in the judge. I commend his arguments to the House. I know that we are placing the judges in Northern Ireland in a very vulnerable position. They are very conscious of that, but they are men determined to do their duty, and they have done their duty. They are confident that if the House gives them this task they will carry it out with courage and integrity.

Question put, That the amendment be made:—

The House divided: Ayes 86, Noes 54.

Division No. 189.] AYES [7.20 p.m.
Atkins, Humphrey Boscawen, Hn, Robert Churchill, W.S.
Awdry, Daniel Bowden, Andrew Clarke, Kenneth (Rushcliffe)
Benyon, W. Bryan, Sir Paul Clegg, Walter
Biggs-Davidson, John Chapman, Sydney Cooke, Robert
Cormack, Patrick King, Evelyn (Dorset, S.) Rawlinson, Rt. Hn. Sir Peter
Critchley, Julian Kinsey, J. R. Redmond, Robert
Crouch, David Knight, Mrs. Jill Reed, Laurance (Bolton, E.)
Deedes, Rt. Hn. W. F. Knox, David Russell, Sir Ronald
Dixon, Piers Luce, R. N. Shelton, William (Clapham)
Elliott, R. W. (N'c'tle-upon-Tyne, N.) McMaster, Stanley Shersby, Michael
Emery, Peter Maginnis, John E. Sinclair, Sir George
Fenner, Mrs. Peggy Mather, Carol Soref, Harold
Fletcher-Cooke, Charles Meyer, Sir Anthony Stanbrook, Ivor
Fortescue, Tim Mills, Stratton (Belfast, N.) Sutcliffe, John
Fowler, Norman Miscampbell, Norman Taylor, Frank (Moss Side)
Fox, Marcus Moate, Roger Tebbit, Norman
Green, Alan Molyneaux, James Thatcher, Rt. Hn. Mrs. Margaret
Gurden, Harold Money, Ernie Thomas, Rt. Hn. Peter (Hendon, S.)
Hall, John (Wycombe) Monks, Mrs. Connie Turton, Rt. Hn. Sir Robin
Hastings, Stephen Murton, Oscar van Straubenzee, W. R.
Havers, Sir Michael Neave, Airey Vaughan, Dr. Gerard
Hawkins, Paul Bolt, John Walder, David (Clitheroe)
Hayhoe, Barney Onslow, Cranle Ward, Dame Irene
Holland, Philip Orr, Capt. L. P. S. Weatherill, Bernard
Hornsby-Smith, Rt. Hn. Dame Patricia Page, John (Harrow. W.) White, Roger (Gravesend)
Hunt, John Powell, Rt. Hn. J. Enoch Whitelaw, Rt. Hn. William
Hutchison, Michael Clark Prior, Rt. Hn. J. M. L.
Jenkin, Patrick (Woodford) Pym, Rt. Hn. Francis TELLERS FOR THE AYES:
Kellett-Bowman, Mrs. Elaine Raison, Timothy Mr. John Stradling Thomas and
Kilfedder, James Ramsden, Rt. Hn. James Mr. Michael Jopling.
Archer, Peter (Rowley Regis) Harrison, Walter (Wakefield) Pendry, Tom
Bishop, E. S. Hayhoe, Barney Prescott, John
Booth, Albert Heffer, Eric S. Rees, Merlyn (Leeds, S.)
Cronin, John Janner, Greville Ross, Rt. Hn. William (Kilmarnock)
Davidson, Arthur Jones, Rt. Hn. Sir Elwyn (W. Ham, S.) Short, Rt. Hn. Edward (N'c'tle-u-Tyne)
Davis, Terry (Bromsgrove) Kaufman, Gerald Silkin, Hn. S. C. (Dulwich)
Dell, Rt. Hn. Edmund Kerr, Russell Silverman, Julius
Dunn, James A. Lane, David Skinner, Dennis
Dunnett, Jack Lawson, George Stallard, A. W.
English, Michael Leonard, Dick Swain, Thomas
Faulds, Andrew Lyon, Alexander W. (York) Tope, Graham
Fitch, Alan (Wigan) McAliskey, Mrs. Bernadette Wainwright, Edwin
Fitt, Gerard (Belfast, W.) McNamara, J. Kevin Wallace, George
Fletcher, Raymond (Ilkeston) Marquand, David Whitlock, William
Foot, Michael Mellish, Rt. Hn. Robert Wilson, Rt. Hn. Harold (Huyton)
Fraser, John (Norwood) Millan, Bruce
Freeson, Reginald Morris, Alfred (Wythenshawe) TELLERS FOR THE NOES:
Gilbert, Dr. John Orme, Stanley Mr. Thomas Cox and
Grimond, Rt. Hn. J. Pannell, Rt. Hn. Charles Mr. J. D. Concannon.
Harper, Joseph Parker, John (Dagenham)

Question accordingly agreed to.

The Solicitor-General

I beg to move Amendment No. 3, in page 2, line 36, leave out subsection (3) and insert: '(3) Where an indictment contains a count alleging a scheduled offence and another count alleging an offence which at the time the indictment is presented is not a scheduled offence, the other count shall be disregarded. (4) Without prejudice to subsection (2) above, where the court trying a scheduled offence on indictment are not satisfied that the accused is guilty of that offence, but are satisfied that he is guilty of some other offence which is not a scheduled offence, but of which a jury could have found him guilty on trial for the scheduled offence, the court may convict him of that other offence. (5) Where the court trying a scheduled offence convict the accused of that or some other offence then, without prejudice to their power apart from this subsection to give a judgment, they shall, at the time of conviction or as soon as practicable thereafter, give a judgment stating the reasons for the conviction. (6) A person convicted of any offence on a trial under this section without a jury may, not- withstanding anything in Section 8 of the Criminal Appeal (Northern Ireland) Act 1968, appeal to the Court of Criminal Appeal under that section— (a) against his conviction, on any ground without the leave of the Court of Criminal Appeal or a certificate of the judge of the court of trial; and (b) against sentence passed on conviction without such leave, unless the sentence is one fixed by law. (7) Where a person is so convicted, the time for giving notice of appeal under section 20(1) of the said Act of 1968 shall run from the date of judgment, if later than the date from which it would run under that subsection.'

Mr. Deputy Speaker (Miss Harvie Anderson)

With this Amendment it will be convenient to take the following:

Amendment No. 4, in Clause 4, page 3, line 18, leave out from 'offence' to 'shall' in line 19.

No. 5, in page 3, line 23, leave out from 'offence' to 'shall' in line 24.

No. 6, page 3, line 32, leave out from 'offence' to first 'or' in line 33.

No. 8, in Clause 5, page 4, line 1, leave out from 'offence' to 'a' in line 2.

No. 10, in Clause 6, page 4, leave out line 15.

No. 22, in Clause 30, page 18, line 12, leave out from 'offence' to end of line 13.

The Solicitor-General

The grouped amendments are consequential upon Amendment No. 3. That amendment deals with three separate matters—namely, the prevention of counts of scheduled and non-scheduled offences being included in the same indictment, the kind of judgment which must be given by a court which convicts somebody under Clause 2—that is on indictment without a jury—and the right of appeal of anybody so convicted.

In Committee there was some discussion about the joining in the same indictment and in the same trial of scheduled and non-scheduled offences. I undertook to reconsider the matter. I made it clear that I had some sympathy with it. The new subsection (3) and subsection (4) makes suitable provision. Subsection (3) provides that if an indictment contains a scheduled and non-scheduled offence the non-scheduled offence should be disregarded. The subsection leaves the power which was discussed and, I think agreed generally in Committee, that the court should on a scheduled offence have the right to convict the accused of a lesser offence even though it might be a non-scheduled offence.

Subsection (5) puts into effect the suggestion which was made in Committee that there should be what I called a reasoned judgment. The draftsmen have preferred that there should be a judgment stating the reasons. The House will see that only upon conviction would such a judgment be given. That is for the obvious reason that upon an acquittal such a judgment could perhaps be damaging to the accused person.

Finally—this is of great importance—provision has been made to short circuit or bypass the ordinary provisions which apply on appeal from conviction and sentence in Northern Ireland where leave has to be given before the Court of Appeal can deal with the appeal. That hurdle has been taken away, and now there is a direct right of appeal, without any question of obtaining leave or consent of the judge of the court of trial, not only against conviction but against sentence passed on conviction in any case where the conviction arises out of a scheduled offence. It was felt by the Government, and I am sure that the whole House would agree, that in a serious case decided—as the House has now ruled—by a judge sitting alone it would be a valuable safeguard that there should be provision for direct access to the Court of Appeal.

7.30 p.m.

Mr. Kevin McNamara (Kingston upon Hull, North)

In welcoming the amendment we welcome the Government's partial conversion. Having spent most of today in exterior darkness they have not emerged into interior light but have at least come into the gloom. We are particularly pleased with the steps which the Government have taken relating to appeals and scheduled and nonscheduled offences, which was an obnoxious part of the Bill as it first appeared before the House and in Committee. We are glad that the Government have seen the light in that way.

There is a little confusion which I draw to the attention of the hon. and learned Gentleman about line 7 of the amendment. The new subsection as a whole says: Without prejudice to subsection (2) above, where the court trying a scheduled offence on indictment are not satisfied that the accused is guilty of that offence, but are satisfied that he is guilty of some other offence which is not a scheduled offence, but of which a jury could have found him guilty on a trial for the scheduled offence, the court may convict him of that other offence. We appreciate the reasons for placing that provision within the Bill. In many ways that is the proper thing to do. I draw the hon. and learned Gentleman's attention to line 7, which says: but of which a jury could have found him guilty on a trial for the scheduled offence … Does that mean an offence upon which a jury could have found him guilty on trial for the scheduled offence with the new and amended rules of evidence as they appear within the Bill, or it is where a jury could have found him guilty of the lesser offence and when the rules of evidence as they exist outside the Bill would have applied if he had been tried for the lesser offence?

It is generally accepted that we are lessening in this context the rules of evidence. Perhaps "lessening" is not the correct word. In fact, we are removing many of the stringencies of the rules of evidence regarding scheduled offences. On a non-scheduled offence, does the judge convict using the rules of evidence as they are at the moment or as they will be after the passing of the Act'? That is an important point, and those who read our proceedings will want to have some indication of the hon. and learned Gentleman's attitude to the matter as that may prevent future litigation.

The Solicitor-General

The answer I can give the hon. Gentleman, not from any room of interior gloom but perhaps with some brightness shining about us at the moment, is that the procedure would be that of a Part I procedure throughout.

The reason has to be because otherwise the learned judge would be creating a sort of Jekyll and Hyde character for himself. He would be looking at the evidence with one eye to see whether it was the ordinary Part I procedure. and, having decided that perhaps the principal element of evidence was lacking and. therefore, it was no longer a scheduled offence aggravated burglary or something of the sort, he would then say "I do not feel that the essential element is there but in the absence of that element there is the lesser offence"—what we called in Committee the "blood brother"—"and, therefore, I convict of that."

I would have thought that the whole of that trial—the Part I trial—would be conducted as a Part I trial throughout. The alternative power given to the court under the new subsection is the question, based on the Part I trial procedure, whether a major offence has been made out, and, if not, whether the lesser offence comes in, about which the learned judge has heard and about which he is satisfied.

Mr. S. C. Silkin

The Solicitor-General has given his view of what the amendment means. I am bound to say that my hon. Friends and I take the view that if it means what he says it means it is most unsatisfactory. The Bill sets up a special procedure, to which I have referred many times as "diluted justice", in respect of scheduled offences, and scheduled offences only. It does not set up any such procedure in respect of any other offence than a scheduled offence. But if the hon. and learned Gentleman's interpretation of the amendment is right, the effect would be to extend vastly the area of diluted justice by applying it to any charge of which the defendant could have been guilty upon indictment for the scheduled offence.

The hon. and learned Gentleman must see that that would be widening immensely the area in which the provisions of Part I of the Bill would apply. It would be applying them wholly illogically to offences which would not be scheduled offences if directly charged. Thus, we would have the situation that if two people were involved in the same incident and it were thought that A could be charged with a scheduled offence on the evidence but that B could not, B would be tried without the Part I procedure being applied to him and his guilt or innocence, therefore, would depend upon the normal rules of the criminal courts. On the other hand, A. having been tried under the Part I procedure and acquitted of the scheduled offence, could be found guilty under Part I of the lesser offence.

Such a situation would create a gross anomaly between the two people concerned and a grave injustice. If, therefore, the amendment means what the Solicitor-General thinks it means—no doubt he will think further about it—I suggest that the wording should be amended in another place so as to avoid the anomaly and the injustice.

The Solicitor-General

I feel it right that the House should analyse for a moment the effect of what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) has said. Let us look at Clauses 5, 6 and 7, taking them separately. One has a trial on a scheduled offence in which, for example, a statement has been admitted in the absence of the witness, under the provisions of Clause 5. That statement is part of the case. It may not be the only evidence.

At the end of the case, the judge says that he is not satisfied upon one element of the offence charged, and, therefore, he takes it out of the category of scheduled offence. But there is the lesser offence on which the court can convict. Is the learned judge, then, to work back and say "There was a statement by a witness, who did not attend, which was admissible under Clause 5. I have to consider whether that statement was material in the absence of the witness, but I am prepared to accept it as far as the other offence is concerned"?

The judge, in that situation, has to go on to say that there was an admission by the accused, however; but defending counsel did not object to that admission because it was not obtained in contravention of Clause 6. The judge then has to say "I am not satisfied that a scheduled offence has been committed, but on the basis of the evidence before me I am satisfied that a lesser offence has been committed, and I invite defence counsel to say whether he has grounds for excluding the admission, which he did not object to under Clause 6, because there may be different grounds on which he would be entitled to object to that admission if it is not a scheduled offence trial."

If that situation is not absurd enough, on Clause 7, relating to the onus of proof, is the learned judge to say "I have to consider whether the evidence given to me, not only under Clauses 5 and 6 but under Clause 7, is evidence that I must review again now that it is a non-scheduled offence that I am considering."? In our view it would make nonsense of the process and create an intolerable burden which is totally unrealistic.

Mr. McNamara

By leave of what is left of the House, I must tell the Solicitor-General that what he has said with regard to the admissibility of a statement, the onus of proof, and the rest, really is not sufficient answer. This matter is something to which both he and the Attorney-General must set their minds when the Bill reaches another place.

Throughout the Committee stage we were told "We must not bother about the jury because all the judges have trained legal minds; we must not insist upon three judges because, after all, every judge has a trained legal mind." Whenever we have come to a point where there is a lessening of the defences available to the accused, we have been told "The judge has a trained legal mind." Now the hon. and learned Gentleman says that the judge would not be able to reconsider his decision. Yet surely a judge has a trained legal mind.

Welcome as many of the amendments are, and although we will not divide the House on this amendment because of what is contained in it for the general lessening of the evil in the Bill, nevertheless this aspect must be looked at very carefully in another place. One paramount factor arises. In the difficult situation in Northern Ireland it would be so easy for people, from whichever camp, to say that all that was done by the Attorney-General was to accuse them of a greater offence, knowing that it would not be established but certain that, under the rules which have been relaxed with regard to the presentation of evidence, it would nevertheless ensure a conviction. That cannot be satisfactory to anyone.

7 45 p.m.

Mr. Peter Archer

Is there any insuperable difficulty, if the judge finds the scheduled offence not proved, in indicting the accused in the normal way by the normal procedure?

Mr. McNamara

I would not have thought so. This is something at which the Government ought to look in another place. We are not really satisfied on this point, particularly on the basis of the argument employed by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin). The Government should look at this if only to prevent future extensive and expensive litigation in the Northern Ireland courts.

Amendment agreed to.

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