MR. IVOR GRAHAM (Hansard, 25 June 1976)

§ The Under-Secretary of State for the Environment (Mr. Kenneth Marks)
On a point of order, Mr. Deputy Speaker. We have had a long debate, during which a number of hon. Members have waited to speak to other matters. My hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) has been waiting for some considerable time to begin his debate—and as he has now arrived in the Chamber I will resume my seat.

§ Mr. David Weitzman (Hackney, North and Stoke Newington)
I am grateful for the opportunity to raise the case of Mr. Ivor Graham. It is an extraordinary case. Mr. Graham is a constituent of my hon. Friend the Member for Hackney, Central (Mr. Davis) but as my hon. Friend is a Minister, he is precluded from raising the matter. I do so with his consent, as the Member for the adjoining constituency.
On 5th and 6th December 1974, Mr. Graham was arraigned and tried on a charge of theft at the Inner London Crown Court. He was a man of excellent character and had never before been 2146 accused of any act of dishonesty or any crime. In fact, on one occasion, he was commended by the police for his honesty in a certain incident.
After the whole of the evidence had been given, the judge indicated to the jury that he had taken a certain view of the effect of the evidence upon them and explained that the burden of proof lay with the prosecution, and that it was absolutely necessary to satisfy the jury that Mr. Graham had acted dishonestly. If the jury were not satisfied, Mr. Graham was entitled to be acquitted. In other words, the judge was saying to the jury "You may think you have heard enough and stop the case." The jury wished to retire and consider the matter, and they were given permission to do so. After 11 minutes they returned to the court, and this conversation followed: Judge: Mr. Foreman, do you wish the case to proceed or not? Foreman: No. Judge: You realise that it follows, therefore, that the result you have reached means that the defendant will be acquitted? Foreman: Yes. Judge: Very well. I will ask Mr. Clerk to put the question in the normal way. Clerk: Members of the jury, have you reached a verdict on which you are all agreed? Foreman: No. It was 11 to 1. On the next morning, despite strong arguments put by counsel for the defendant, the judge discharged the jury and ordered a retrial. The second trial followed at the end of January 1975. One can imagine the shock felt by Mr. Graham, who at one moment believed himself cleared by the judge and then found himself facing a second trial almost two months later. It is not surprising that he was ill during the period and that he did not acquit himself well in the witness box. The prosecution was able to surmount the difficulties it had encountered in the first trial in cross-examination by the defendant's counsel and the second jury consequently found Mr. Graham guilty. He was fined £250 and ordered to pay costs of £200.
It is an important principle of our law that a man cannot be tried twice for the same offence. It is true that as no verdict was returned at the first trial a plea of autrefois acquis could not be pleaded. But the defendant had been virtually 2147 acquitted. He should not have been tried again. The judge in the first trial was clearly wrong in what he did. He should not have d]ischarged the jury and ordered a retrial. He should have summed up and then asked the jury to consider their verdict. If they could not agree he was empowered after two hours to take a majority verdict which was 11 to 1 for a finding that Mr. Graham was not guilty. The defendant would have been formally acquitted.
The judge was later strongly criticised by the Court of Appeal. In its judgment the court said: That trial ended in an order for a new trial made by that learned Deputy Judge in circumstances of unusual and one hopes unparalled confusion for which, reluctant as we are to criticise, the sole responsibility must rest on the learned Deputy Judge. What I am concerned about is the action taken by the prosecution in this case, the Chief Constable of the Port of London Authority. I think that I may claim over many years to have had some experience in the conduct of criminal cases on behalf of both the prosecution and the defence. I have not the slightest doubt that if the prosecution had been not private but undertaken by the Director of Public Prosecutions, having heard the result of the first trial and the virtual acquital of the defendant, counsel would have advised—I certainly would have done—and the Director would have authorised, that no evidence would be offered at the second trial and a verdict of not guilty would then have been entered.
That was not done by the police of the Port of London Authority. They persisted in their effort to obtain a conviction. One wonders why. Was there an ulterior motive? If there is the slightest possibility of that, it is disgraceful. If they could strengthen their case against this man and secure a conviction, they could dismiss him and he would lose his pension and severance pay, by which the Port of London Authority would benefit.
That object was achieved. As a result of the verdict, this man of excellent character, who has served the PLA well for 21 years with no blemish on his character, was not only fined £250 and ordered to pay £200 costs but was dismissed by the authority and lost his pension and severance pay of over £7,000.
2148 What is one to think of the conduct of the authority in following this course when, if the DPP had been prosecuting, he would, I believe, in the light of the circumstances, have offered no evidence at the second trial? Certainly the PLA made a personal gain. It was said by Mr. Justice Channel in the case of Regina v. Lewis: A Jury should not be discharged in order to allow the prosecution to present a stronger case at another trial. That is what the private prosecution hoped to do.
Mr. Graham appealed to the Court of Appeal. The only possible ground of appeal was based on the interpretation of Section 2(1)(a) of the Criminal Appeal Act 1968, under which the court had power to quash a conviction upon the ground that the verdict of the jury should be set aside, because, "in all circumstances" of the case, it was unsafe and unsatisfactory.
The appeal was dismissed in a reserved judgment upon the narrow grounds that the words "in all the circumstances" referred only to the second trial. However, the court certified that a point of law of general public importance was involved, the question being: Ought the Court of Appeal to have quashed the conviction at the second trial on the ground that that verdict was unsafe and unsatisfactory by reason of the fact that at the first trial the action of the Deputy Circuit Judge in discharging the jury deprived the accused of the probability of acquittal, having regard to the fact that that jury had (albeit improperly) announced that they were 11–1 in favour of acquittal? The House of Lords did not give leave.
I venture to suggest that, when the Criminal Appeal Act was discussed in this House and in Committee, if anyone had suggested that it was not possible to consider the words "in all the circumstances" as being applicable to this case, but merely the narrow interpretation placed upon it by the courts, the Minister in charge would have given an assurance or had words inserted to prevent that narrow interpretation.
That is my case in asking the Home Secretary to recommend the exercise of the Royal Prerogative. A man found not guilty by a jury by 11 to one was put in jeopardy. A course was adopted by the prosecution in not electing to offer no evidence at the second trial—the latter 2149 being a course that I believe the DPP would have adopted. I ask the Minister to ensure that this matter is put right, that justice is not only done but seen to be done.
In a letter dated 6th April this year, the Home Office said, inter alia: The Home Secretary can consider recommending the grant of a Free Pardon only if some fresh and compelling consideration comes to light which the courts of trial and appeal were unable to take into account and which provides substantial grounds for believing that the person concerned was innocent of the offence of which he was convicted. That there are substantial grounds for thinking that Mr. Graham is innocent is clear from the verdict of the first jury.
My hon. Friend may rely on my quotation from the letter, but that covers the very grounds that I am putting forward. The courts of trial, including the second jury, the Court of Appeal and the House of Lords, could not take into account the injustice which had occurred—on the second trial because of the course adopted by the prosecution, and in the appeal court because of its interpretation of the relevant section of the Criminal Appeal Act 1968. They could not take into account the obvious injustice which had occurred.
But the Home Secretary can and should take that into account. We have heard a great deal lately about the dangers of conviction in identification cases. In those cases consideration has been given, although there are certainly a number where there can be no question of fresh evidence.
I understand that the machinery of the grant of a free pardon exists to correct an obvious injustice where the court cannot do so. This is such a case—a man found not guilty by a jury by 11 to one, a judge making a mistake in failing to proceed, a second trial where no evidence should have been offered. If ever there were a travesty of justice, this is it. I hope that my hon. Friend will go into the facts again very carefully and give them the most careful consideration.

§ The Minister of State, Home Office (Mr. Brynmor John)
Even at this late hour, I am grateful to my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. 2150 Weitzman) both for raising this subject and for the manner in which he has done so.
My hon. and learned Friend rightly made the point about a personal problem. It is always a tragedy when somebody without a previous conviction and prominent in the community is charged with and convicted of a criminal offence. When that conviction is accompanied by controversy and subsequently by advocacy which has culminated in this Adjournment debate, it behoves us to look into the matter with especial care.
I should like to set the debate in its general framework, because my hon. and learned Friend invited a recommendation by my right hon. Friend the Home Secretary for the exercise of the Royal Prerogative. That can be exercised in two ways. The first is by recommending remission of the sentence where there is doubt in the case. It is generally agreed, and I am sure that my hon. and learned Friend would not be dissent, that that would not be helpful here, as the fact of the conviction would remain. I emphasise that that course is followed where there is doubt about the evidence.
The second way is the grant of a free pardon, which can be recommended by my right hon. Friend when he has evidence of the innocence of the person in question and not doubts about his guilt. This exercise, as it is not a usurpation of the position of the courts, must be carried out on new evidence. It cannot be done where there is a belief that the Home Secretary would have decided the matter differently had he been the judge. The Home Secretary cannot take the place of the courts. He can exercise his power to recommend only when new evidence is available. That is the general framework within which I set my approach to this debate.
It is true, as my hon. and learned Friend said, that the first trial at which Mr. Graham stood ended thoroughly unsatisfactorily. But my hon. and learned Friend has on several occasions referred to the verdict and referred to a finding of "not guilty". In fact, as the learned counsel who appeared for Mr. Graham both at first instance and on appeal accepted, there was no verdict formally rendered and it is a cardinal matter which was accepted not only by counsel 2151 for the defendant on that occasion but by the courts on the subsequent appeal proceedings.

§ Mr. Weitzman
I said that there was no formal finding, but virtually there was clearly a finding of innocent by 11 to one.

§ Mr. John
That is what my hon. and learned Friend says. I want to go on from the technical point about the verdict. When no verdict has been delivered, the judge has a discretion to discharge the jury, from which no appeal lies. That really is the position which was arrived at.
I know my hon. and learned Friend has a strong belief, based upon a study of the case, that a finding in favour of Mr. Graham would have occurred had the case proceeded to a decision on that first occasion. But it did not. It went to a second trial.
Again my hon. and learned Friend, on behalf of Mr. Graham, has properly questioned whether evidence should have been proffered on behalf of the prosecution, and he has said that in his considerable experience he would not have tendered advice of that nature had he been the person to advise. That again is something for which the Home Secretary, as he knows, has no responsibility.
My hon. and learned Friend went on from there to deal with the question of ulterior motive. I think that I should state from the record how the prosecution was and is initiated by the Port of London police. The prosecuting authority is the chief constable who acts, I understand, independently of the Auhority itself. It was he who decided to proceed upon the advice of solicitor and counsel. The position was that the Port of London Authority itself was certainly not consulted by the chief constable; nor was there any factor in his mind, I am told, that led to his initiating this case because of the question of saving the Port of London Authority money.
However, after that there was a second trial at which, according to the Court of Appeal transcript, which my hon. and learned Friend and I have read carefully, a decision was arrived at on what the Court of Appeal after a very short retirement called overwhelming evidence. 2152 That was a finding of "guilty" and the fines which my hon. and learned Friend mentioned.
The Court of Appeal then considered the verdict and dealt with, among other things, the question of Section 2(1)(a) of the Criminal Appeal Act 1968. My hon. and learned Friend will know perfectly well that although he may say that a Minister would have intervened in a parliamentary debate in 1968, had it been thought that the words would have the connotation they had, to emphasise to the contrary, nevertheless the ordinary canons of statutory interpretation by the judiciary apply, and it had to construe this section as it did. That being so, it decided that since it could not consider the circumstances of a trial at which no verdict was brought in, that was not part of the matters which it had to consider upon appeal.
My hon. and learned Friend has rightly said that Mr. Graham, through his legal advisers, sought leave to appeal to the House of Lords, but permission was refused. There is no new evidence which was not before the court at the time of the judicial process. That being so, the Home Secretary is in a difficulty about acceding to what my hon. and learned Friend has said.

§ Mr. Weitzman
It is true that in a sense there is no new evidence, but the evidence which existed could not be considered by the court. The court could not take into account the finding of the first jury of 11 to one but the Home Secretary can.

§ Mr. John
My hon. and learned Friend says that, but it was canvassed before both courts before they came to their conclusions. My right hon. Friend would have a difficulty about making any recommendations because he is not anxious to put the Home Secretary in the position of the courts, either of appeal or of first instance.
My hon. and learned Friend has put forward the case fully and frankly on behalf of Mr. Graham. I make no undertakings because I cannot see any way in which the Home Secretary could properly intervene to exercise the Royal Prerogative.
Earlier, I referred to the care with which one has to look at a case when a 2153 first offender loses a character which he dearly prizes and whose loss is an irreparable blow. I promise in the light of the debate to look at the evidence yet again. I will go through it carefully and write to my hon. and learned Friend about my views. I do that in friendship to my hon. and learned Friend—and that is not a formal expression of friendship but a true expression—in fairness to the case that he has put forward and, above all, in fairness to Mr. Graham.
2154 When I have concluded that examination I shall let my hon. and learned Friend know as fully as I can. I cannot be very hopeful, but I hope that he will think that what I am prepared to do is at least a helpful and positive response to the case that he has made.