HL Deb 12 July 1906 vol 160 cc1002-8

Order of the day for the Third Reading read.

Moved, "That the Bill be now read 3a."—(The Lord Chancellor.)


My Lords, I am extremely sorry that I am not able to allow the Third Reading to pass without a few words of protest against the Bill as it now stands. I have no doubt that some of your Lordships will think I am acting somewhat ungraciously in the matter. It would have been far more congenial to me to have admitted that the Amendments which the Lord Chancellor has accepted mot some of the objections that I was obliged to take to the Bill in its original shape, in which it was certainly incapable of being applied with justice. But I have had no opportunity whatever of pointing out to your Lordships, or through your Lordships to those who are interested in this matter, my objections to the Bill except on the present occasion, and therefore I ask your Lordships to permit me for a few minutes to call attention to four or five matters, and to point out that unless those points are dealt with in another place the measure will be one which cannot possibly be effectively worked.

I am not going to refer to any matters which could be dealt with by rule or which could be the subject of verbal amendment, but I am obliged to call attention to four or five matters which would arise under the working of the Bill as it now stands. Your Lordships now allow an application to be made by persons convicted for leave to appeal, and it is upon that that the present state of difficulty arises. You Lordships have not inserted in this Bill any provision at all for the release on bail of persons who either give notice of appeal or have a right of appeal given them. That is a most serious consideration. It cannot be cured by rule. At present, by the Statute law, no convicted person can be released on bail except under the provisions of the Crown Cases Reserved Act, which is actually repealed by this Bill.

What is the position to be? A man is imprisoned, either at Cardiff, Liverpool, or Newcastle. There is no provision in this Bill as to how he is to make his application, no provision whereby he can either get out of prison or get aid in prison; and the result is that that part of the Bill must remain almost a dead letter except in the cases, as I ventured to mention to your Lordships on the last occasion, of rich criminals as compared with poor. It is the more remarkable that that most useful Act of Parliament, the Crown Cases Reserved Act, has been repealed. Under that Act there is given to a Judge power to state a special case, power to respite a sentence, and power to permit the prisoner to bail. In this Bill the only sentence that can be respited is the sentence of death.

I pass to another point which seems to me to have been overlooked by those who have no doubt been assisting my noble and learned friend on the Woolsack in the preparation of this Bill outside this House. I refer to the fact that no provision is inserted as to how the prosecutor is to be dealt with. That is an extremely important point when you see the practical working of this Bill. At present, in a great number of cases, orders are made for the restitution of goods. What is to happen with regard to those goods under this Bill? There is no provision for suspending the operation of these orders, and the consequence is that a prosecutor who is not going to be represented, or at any rate can only be represented at his own expense, will not know as to how these orders are to be dealt with.

But it touches a far broader question. What is to be position of the prosecutor?

This Bill makes no provision for his costs. That is a really serious difficulty. The prosecutor, sometimes the police but more often a private individual who has been bound over to prosecute, will be obliged, if the case is properly conducted, to appear and bear his own expenses. If the Bill is to pass in its present form it is imperative that the State, through the Public Prosecutor, should take up the conduct of cases for the prosecution on appeal. That leads to another point governed by statute as to which this Bill makes no provision the binding over of witnesses. Witnesses are bound over by the committing magistrate to give evidence at the trial, but, as this Bill stands at present, it provides for a new trial but makes no provision of any sort for securing the attendance of witnesses when the new trial is ordered. This is a very practical question in great seaports like Liverpool and Cardiff, because there are not a few crimes every year tried at these assizes which necessitate the attendance of seafaring witnesses, who are very difficult to obtain. It is essential, if this Bill is to be worked, that this provision should be amended. No rules that could possibly be made under the Bill would enable this difficulty to be got over.

The only provision in the Bill for legal assistance is in cases in which the Court of Appeal is of opinion that a prisoner requires it for the purpose of getting up his appeal and supporting his appeal before the Court. It will be absolutely essential, if the Bill is to have the effect in any number of cases that the noble and learned Lord on the Woolsack desires, that this should be dealt with by an alteration of statutes and not by a mere question of rule. There is another important point which seems to me to involve a question of principle. Power is now given by the Bill to convict a prisoner in his absence of an offence of which he has not been found guilty at the trial. The Bill provides that the Court of Appeal may sentence a man for a crime which he has not been found guilty of by the jury if the Court of Appeal thinks he is guilty of it, and that is done in the absence of the prisoner unless the Judges order the prisoner to be present. I submit that, as a matter of constitutional justice, the Bill ought to have been framed the other way. The prisoner should be present, and such an extraordinary anomaly as judgment in a criminal case behind a man's back should not appear on the Statue Book. This, again, is no mere theoretical grievance. If a prisoner is convicted behind his back of some offence with which he was not charged at the original hearing, it might at once be said that if he had known that this was to be charged against him he could have given an explanation.

The matters to which I have referred affect the working of the Bill as it is now framed. They are all matters that depend upon statute except the last one, which is a new provision in this Bill allowing a prisoner to be convicted in his absence, and they are matters which in my judgment must be considered before the Bill as now framed can possibly work. Ending as I began, I regret I cannot abate my objections to the Bill. I have never heard, from the beginning to the end of this discussion, any case made out for the proposed alteration in the law. If it is to be carried into effect, I do respectfully submit that it ought to be after this kind of legislation had been carefully examined by experts who are acquainted with the administration of this branch of the law; if necessary by some Departmental Committee or Select Committee that really could deal with the practical question. It is my duty most unwillingly to say that I believe the Bill as it leaves your Lordships' House to be unworkable, and I deeply regret that legislation in this shape on so important a matter as the criminal law should be sent down from your Lordships' House to another place.


My Lords, I think your Lordships will feel that it is very unfortunate that my noble and learned friend's judicial duties have prevented him from Attending and making these observations at the earlier stages of the Bill. We had the Committee stage and the Standing Committee stage, which lasted some time and in which the noble Earl the late Lord Chancellor and other noble and learned Lords took part, and at which, too, several of the matters referred to were considered. In regard to the other points to which my noble friend has referred, I have heard them for the first time now, and I believe, with all respect, to my noble and learned friend, that his objections are unsound.

It is said that there is no provision for the release on bail of those who appeal No; they have been convicted before a judge and jury, and I do not propose that they should be released on bail unless the Court of Appeal decides that they ought to have a new trial. I am paying respect to the decision of the Judge and jury by whom they have been convicted. They are not persons who are awaiting trial; they are persons who have been convicted, Let the appeal take place as soon as possible, but, until then, why not allow them to remain in prison after sentence has been passed? The next point raised was that there is no provision for applying for leave to appeal. There is. It is provided that rules can be made in regard to all notices of appeal. The next observation was, how is the prosecutor to be dealt with? He is one of those who may have notice given to him under the rules in accordance with one of the clauses of the Act. I did not understand the point made in regard to the restitution of goods. Until the appeal is settled and acquittal takes place the order for restitution stands good.

As to the binding over of witnesses to appear at the second trial, I should like to have had an opportunity of looking up the statute which provides for this matter, but my impression is that the recognisances would be binding at the second trial. If they are not the witnesses could be again summoned, if available, for the second trial, and if they are not available they could not be forthcoming whether you have recognisances or not. The provision with regard to punishment for a minor offence on a conviction for a major offence was discussed in Committee in the presence of the noble and learned Earl the late Lord-Chancellor, who is the greatest criminal authority in this country. That provision is intended for this kind of case. Suppose a man is convicted of murder, and the Court of Appeal does not think he is guilty of murder but of the lesser offence of manslaughter, they may then convict him of manslaughter. The exact wording of the clause is— Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court that the jury must have been satisfied of facts which proved him guilty of some other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of such other offence, and pass such judgment in substitution for the judgment passed at the trial as they think proper. What does that mean? If the Court thinks that the person convicted has not been guilty of the greater offence of murder but has been guilty of manslaughter, then they may reduce the sentence to one for manslaughter. That is all that is meant. I do not see any great harm in that. For my part I think it is a sensible provision.


I did not object to that. I objected to the absence of the prisoner.


The other point raised by the noble and learned Lord is the absence of the prisoner. It would be very difficult alway to require that the prisoner should be present whenever he thinks proper to appeal. It would be a very serious matter to bring up prisoners in this way. It must be remembered that the man has been already convicted. You are giving him another chance; you allow him to either send in a document to the Court asking them to reconsider the case or to appear by counsel, and you authorise the Court of Appeal to say he shall be present in person if necessary. He having been convicted, the country should not be put to the expense of bringing the prisoner up to the Court in order to hear the arguments, because there are not witnesses, except in rare instances, to be heard. It is reasonable to say that the prisoner shall not be brought up under these circumstances unless the Court thinks he ought to be. I have now come to the end of the criticisms of the Lord Chief Justice, and I think everybody will agree that they are substantially Committee points.

I wish to express my gratitude for the assistance I have received from many noble Lords in the passage of this Bill. I believe the Bill to be a good one and to be sincerely desired outside by people of all opinions. I have valued from the commencement the criticisms directed against it, and I think I may say that except on minor, I might almost say minute points, there have only been two things said against the principle of this Bill. The first is the objection to the expense. I do not believe there will be any expense to speak of. If there was an expenditure of £10,000 or £15,000 a year, it would be perfectly insignificant in comparison with the object attained. The second argument, one which has not been renewed, is that juries when they thought there was going to be an appeal would cease to do their duty with the same vigilance as before. I believe there is no foundation whatever for that statement. I refrain from answering the numerous criticisms which have been made outside, not always in temperate language, and I am glad to think that opinion has now come round to the belief that the Bill is a good one, and is, on the whole, destined to be a valuable addition to the statute law of this country.

On question, Bill read 3a; an Amendment (Privilege) made; Bill passed, and sent to the Commons.