CRIMINAL CASES (RESERVATION OF POINTS OF LAW) BILL [H.L.] (Hansard, 30 June 1905)

EARL RUSSELL
My Lord, this Bill was introduced to meet the recommendation of the Beck Commission. Your Lordships are probably aware that there is a considerable body of opinion in favour of the establishment of a larger Court of Criminal Appeal; but, recognising that this Bill was introduced simply to meet that specific point, I did not take any part in the earlier discussions. The Bill, however, has been considerably amended since it was introduced, and I notice a very curious provision in it of which I should like to have some explanation. In Clause 2 of the Bill, as now printed, it is provided that— The Court hearing and determining a question of law with respect to which a case is stated under the Crown Cases Act, 1848, whether in pursuance of this Act or otherwise, shall, in addition to the powers given to them by that Act, hive power to order the retrial of the case— So far I have no objection to the clause. But then it proceeds— and may also order that any conviction or judgment shall stand, if they consider that no miscarriage of justice has, in point of fact, occurred, notwithstanding that they are of opinion that the question of law should have been decided in favour of the person convicted. I am bound to say that that seems to me rather a strong order, because, if I understand those words correctly, they mean that this Court of Criminal Appeal may say in one breath that a person has been wrongfully convicted from a strictly technical legal point of view, and in the same breath may say that, though not legally convicted, he is at 639 the same time to be punished. The effect of those words has, perhaps, not been fully considered.
There is another aspect of the clause which I think can scarcely have occurred to those who drafted that provision, and it is this: that the wrongful conviction of a person will depend upon whether he is tried in the first instance by a Judge who knows the law or by one who does not know the law. If he is tried by a Judge who does know the law the Judge will rule that the evidence cannot be admitted, and the prisoner will escape conviction; but if he is tried by a Judge who does not know the law, that Judge may wrongfully admit some irregularity at the trial, and the prisoner may, in consequence, be convicted; and in that case the Court of Appeal can, under this clause, allow the conviction to stand although the conviction arose through the Judge making a mistake in law. I do not think the anomalous effect of this provision has been fully considered.
I should also like a little explanation of the words "miscarriage of justice." The clause provides that the Court may order that any conviction or judgment shall stand if they consider that no miscarriage of justice has, in point of fact, occurred. I should have thought that to a lawyer a miscarriage of justice meant an illegal conviction. If it means in the popular sense of the term that a man ought to be punished, although not legally guilty of the particular thing for which he was tried, I do not see why you should not give that power also to the Court of First Instance. I think these words introduce what might become a rather dangerous practice, and one which might lead to rather unfortunate results, and I should be glad to hear what explanation or what justification there is for them.

§ THE LORD CHANCELLOR (The Earl of HALSBURY)
My Lords, the explanation is very simple. In both the civil and criminal Courts it has been the subject of grave animadversion that some technical objection outside the 640 real moral merits of the cases has decided a case the wrong way. In respect of civil procedure, since 1873 it has been recognised and enacted that wherever the Court is of opinion that justice in its broadest sense has been done, notwithstanding some technical irregularity, the decision ought not to be set aside on the ground of some mistake which did not affect the real justice. of the case. This system has worked with extreme efficiency in civil cases, and when the measure was introduced for the purpose of aiding persons who were before a criminal tribunal it was pointed out that if the Court was invested with the power of inquiring into every one of these cases, and if they should be of opinion that some question which really did not affect the merits of the case one way or another had been wrongly decided, without some provision of this kind they would be compelled to allow a criminal to escape from punishment, although he might be guilty. Where, therefore, there had been no miscarriage of justice in the ordinary and popular sense of the word it would be undesirable to allow a technical error to disturb the due course of justice. That is the meaning of the clause. I think that the object sought to be attained is a right one.

§ LORD ALVERSTONE
My Lords, this provision has been most carefully considered by the Judges of the King's Bench who have to administer the criminal law in assize towns. The Judges arc unanimously of opinion that some such clause as this is absolutely necessary. I would cite by way of illustration the recent trial of a hotel manageress for fraud, and owing to a technical misdirection on a minor point of law by the chairman of quarter sessions the conviction had to be set aside. In more than one case the Judges have been satisfied that there has been no real miscarriage of justice at all, and it is felt that if this state of things is not to become part of the practice it is absolutely necessary that, if there is some minor point to argue which has nothing to do with the real merits of the case, the Judges should have the power to say that it is not necessary to have a new trial, thereby saving expense and delay, and preventing a miscarriage of justice.

§ THE LORD CHANCELLOR
explained that the Amendments standing in his name were of a purely technical character. They were put down originally for Standing Committee, but as no sufficient explanation of them was forthcoming at the time he declined to move them. He now begged to move their insertion.