SOLEMN APPEALS (Hansard, 23 July 1980)

HC Deb 23 July 1980 vol 989 cc649-54 649

§ Amendments made: No. 78, in page 59, line 36, leave out 'an appellant' and insert 'a person'. No. 79, in page 60, line 7, leave out 'appellant' and insert 'convicted person'. No. 82, in page 61, line 20, leave out from 'in' to 'subsection' in line 25. No. 83, in page 61, line 27, at end insert '; and (b) after subsection (2) there shall be inserted the following subsection—

§ "(3) For the purposes of subsections (1) and (2) above, 'appellant' includes not only a person who has lodged a note of appeal but also one who has lodged an intimation of intention to appeal.".'.—[Mr. Rifkind.]

§ Mr. Dewar
I beg to move amendment No. 80, in page 60, line 41, leave out 'may' and insert 'shall'.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
With this we may take the following amendments: No. 81, in page 60, line 43, leave out from 'specify' to end of line 44. No. 110, in schedule 3, page 74, line 44, leave out from 'period' to end of line 45.

§ Mr. Dewar
This matter refers to the report from the trial judge, which is usually obtained when an appeal is marked.
In schedule 2, paragraph 8, as the Minister will notice, the word "may" appears. The wording is: Where the judge's report is not furnished as mentioned in subsection (1) above, the High Court may call for such report". I should have thought it was essential for the High Court to call for such report. The amendment is designed to make it mandatory and to ensure that a report is available.

650

§ Mr. Rifkind
The hon. Gentleman's amendment seeks to make mandatory the requirement for a report. Indeed, in virtually every case a report will be called for. The only—but substantial—reason why a mandatory requirement is not felt to be appropriate here is that the judge in question may have died.

§ Mr. Buchan
How do we know?

§ Mr. Rifkind
If the amendment were introduced, the effect of it, if the judge had died, would be that the appellant would have no right to appeal because the report would not have been provided. The appellant would be put in an indelicate and unacceptable position.

§ Mr. Dewar
I am convinced. I beg to ask leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Mr. Rifkind
I beg to move amendment No. 85, in page 62, line 38, after 'may', insert,' subject to subsection (4) below.'.

Mr. Deputy Speaker
With this it will be convenient to take Government amendments Nos. 87 and 89.

§ Mr. Rifkind
The purpose of the amendment is to include in the new solemn appeal procedure the existing power of the High Court to set aside the verdict of the trial court and substitute a verdict of acquittal on the ground of insanity. The court would also quash any sentence and order that the accused be detained in a State hospital.
The provision was unintentionally omitted from the schedule and the amendment is designed to deal with that anomaly. I commend it to the House.

§ Amendment agreed to.

§ Mr. Millan
I beg to move amendment No. 86, in page 62, line 46, leave out from 'court' to end of line 3 in page 63.

Mr. Deputy Speaker
With this we may take amendment No. 90, in page 63, line 24, leave out paragraph 19.

§ Mr. Millan
This amendment deals with the question of new prosecutions and new trials in cases of solemn procedure. The Minister knows that in principle, in appropriate cases, I am not against the idea of new prosecutions and new trials. The changes that we are 651 making in this area are extremely desirable. The question has been raised before whether, in solemn procedure, it is possible to get a fair, unprejudiced trial when there has already been a prosecution, and perhaps a good deal of publicity, which will have been available to the members of the new jury.
I raised this matter on Second Reading and the Secretary of State then said that the previous publicity might be favourable rather than prejudicial to the accused. With due respect, may I say that that is not the point. I do not wish the jury to come to the new trial in any way trammelled by prejudice, either in favour of or against the accused. I agree that it would be particularly undesirable that the jury should be prejudiced in any way against the accused. I agree that it would be particularly undesirable that the jury should come to a trial with any kind of prejudice. Therefore, although we accept the idea of new prosecutions and new trials with summary procedure, where we are dealing with a professional judge who can set aside any knowledge of the case because of previous publicity, we are not happy about new prosecutions and new trials in solemn cases. This amendment and the associated amendment would prevent that.
The Minister is familiar with the arguments, and I need not elaborate on them. Nothing that has been said so far in the debate has persuaded us that this is a good provision.

§ Mr. Rifkind
I concede that this is a difficult area. The Thomson committee registered the fact that when we enter the realms of retrial we have to be careful to get the balance right. The problem that the committee faced was that at present the courts interpret their ability to quash a conviction because of strict new evidence, and they have to be satisfied, in effect, that if the new evidence had been available to the jury it would not have convicted—not that it might not have convicted, or that there was an area of doubt, but that it would not have convicted.
The difficulty that the Thomson committee recognised was that if there were not an opportunity for retrial the appeal court, when deciding whether to quash a conviction, could not know anything other than the formal evidence that was before 652 the court in the first instance. It would not be able to judge the demeanour of a witness, or consider the reliability of a witness, or whether his evidence was trustworthy—the sort of questions that are important to a jury. Therefore, it was felt appropriate by the Thomson committee—the Government share the view—that, on balance, in order to ensure the widest possible discretion to an appeal court and to ensure that the interests of an accused were not subject to this rigid test when new evidence was available, it was right that the option of a retrial should be available to the appeal courts. If, in special circumstances, they want to quash a conviction because it is a marginal case, they will be more likely to do so if the prosecutor has an option of bringing a retrial, if the court so decides. It is for those reasons that the provision is inserted in the Bill.
I accept the concern of the right hon. Member for Glasgow, Craigton (Mr. Millan) about the implications. It is a difficult balance to achieve, but I hope that he will equally accept that the present interpretation that is required is not acceptable. It is necessary to make some change to ensure that new evidence leads to the appeal court being able, without restraint, to use that as a factor in determining how to deal with the appeal. On that basis, we felt that this was the proper way in which to proceed.

§ Mr. Millan
I shall not press the amendment. I accept nearly everything said by the Minister. Having some experience, as a former Secretary of State for Scotland, of people appealing to me to recommend the exercise of the prerogative, and so on, I accept that the present system is not satisfactory and that there may be cases in which a new trial would be a satisfactory way of dealing with new evidence. I do not object to this proposal in any violent way. We shall have to see how it works out.
I take seriously the idea that a jury may come to a new trial not innocent of the facts and arguments but with preconceived notions about the case. Therefore, we may want to reconsider this matter on some other occasion. We shall have to see how the courts use these new procedures. However, we should approach them with a good deal of care. I am sure that the courts will do the same.
653 On that basis, I beg to ask leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Amendments made: No. 87, in page 63, line 14, after 'may', insert, ', subject to subsection (4) below, '.

§ No. 89, in page 63, line 23, after 'therefor.', insert— '(4) In relation to any appeal under section 228 (1) of this Act, the High Court shall, where it appears to it that the appellant committed the act charged against him but that he was insane when he did so, dispose of the appeal by—

(a) setting aside the verdict of the trial court and substituting therefore a verdict of acquittal on the ground of insanity; and
(b) quashing any sentence imposed on the appellant as respects the indictment and ordering that he be detained in a state hospital or such other hospital as for special reasons the court may specify.

(5) The provisions of subsection (4) of section 174 of this Act shall apply to an order under subsection (4) (b) above as they apply to an order under that section.'.— [Lord James Douglas-Hamilton.]

§ The Solicitor-General for Scotland
I beg to move amendment No. 91, in page 64, line 20, leave out from '(2)' to end of line 24 and insert— 'for the words "ten days", "a note of appeal or of application for leave to appeal" and "the determination thereof" there shall be substituted, respectively, the words "two weeks", "an intimation of intention to appeal (or in the case of an appeal under section 228 (1) (b) of this Act a note of appeal)" and "such appeal, if it is proceeded with, is determined".'.

Mr. Deputy Speaker
With this it will be convenient to take Government amendments Nos. 92 to 103 and Government amendment No. 130.

§ The Solicitor-General for Scotland
These are minor drafting amendments which seek to ensure that the various sections that deal with disqualification, forfeiture, extract convictions, custody of trial documents and the like will be commenced in different ways. I commend them to the House.

§ Amendment agreed to.

§ Amendments made: No. 92, in page 64, line 33, leave out from ' convictions)' to end of line 38 and insert 'for the words "ten days", "a note of appeal or of application for leave to appeal", and "the determination thereof" there shall be substituted, respectively, the words "two 654 weeks", "an intimation of intention to appeal (or in the case of an appeal under section 228 (1) (b) of this Act a note of appeal)" and "such appeal, if it is proceeded with, is determined'.'.

§ No. 93, in page 65, line 6, after 'leave', insert 'to appeal'.

§ No. 94, in page 65, line 7, leave out '"; and' and insert 'to appeal (or in the case of an appeal under section 228 (1) (b) of this Act a note of appeal"; '.

§ No. 95, in page 65, line 9, after 'leave' insert 'to appeal has been lodged'.

§ No. 96, in page 65, line 9, leave out '"an intimation of intention"; ' and insert '"there has been such lodgement"; and (v) for the words "determination thereof" there shall be substituted the words "appeal, if it is proceeded with, is determined".'.

§ No. 97, in page 65, line 11, after 'words "', insert 'an appellant or applicant who has lodged'.

§ No. 98, in page 65, line 12, after 'leave', insert 'to appeal'.

§ No. 99, in page 65, line 13, leave out 'an intimation of intention' and insert 'a person who has lodged an intimation of intention to appeal (or in the case of an appeal under section 228 (1) (b) of this Act a note of appeal)'.

§ No. 100, in page 65, line 16, after 'leave ', insert ' to appeal'.

§ No. 101, in page 65, line 17, after 'intention', insert: 'to appeal (or, in the case of an appeal under section 228 (1) (b) of this Act, note of appeal.'.

§ No. 102, in page 65, line 17, leave out 'and'.

§ No. 103, in page 65, line 19, at end insert: '; and (iii) at the end there shall be added the words "; and they shall be so dealt with if, there having been such intimation, the appeal is not proceeded with.".'.—[Lord James Douglas-Hamilton.]