HL Deb 05 August 1907 vol 179 cc1471-84

[SECOND READING.]

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (Lord LOREBURN)

My Lords, I do not think it will be necessary to trouble your Lordships with a long speech on this occasion, because this measure, which has come up from the House of Commons, corresponds in its main features with the Bill which received the approbation of this House and was passed through all its stages last year. As I then explained, the object of the Government in introducing the Bill was that there should be an opportunity for appeal in regard to all convictions upon indictment, in order that those who had been struck by the criminal law should be placed in a position, with respect to appeal, similar to that enjoyed by litigants in civil causes.

There was a good deal of feeling against the Bill at that time, but I venture to think that the lapse of time has greatly diminished whatever hostility there was to its principle, because, singularly enough, events have occurred within the last twelve months, which, at least to my mind, raise the question whether there should be an appeal to the Press or an appeal to His Majesty's Judges, and for my part I have no hesitation in expressing a preference for His Majesty's Judges. That is the opinion, I think I may fairly say, of your Lordships also, because the principle of the Bill last year was not really contested, and in some parts the Bill met with the approbation of the greatest living authority on the subject, the noble and learned Earl who preceded me on the Woolsack, although in some matters I agree he was not able to concur. The Bill now comes before your Lordships, with something very near unanimity as to the general principle, from the House of Commons. I shall therefore at this stage confine myself to a very short indication of the points in which the Bill now presented to your Lordships differs from the Bill that was agreed to last year.

First, as to the constitution of the Court. Last year all His Majesty's Judges were to be members of the Court of Criminal Appeal. This Bill provides that only nine of the Judges are to be members of the Court, with the Lord Chief Justice as President. The second point is as to the subject-matter of appeal. Last year all matters of fact and of law and of mixed fact and law were referable to the Court of Appeal by leave either of the Judge or of the Court of Appeal. In this Bill all these matters are still subject to appeal, but there is the additional provision that without leave an appeal is given in all cases of capital sentence. The third point is as to the remedy or relief which can be given by the Court. Under the Bill of last year as originally introduced the Court of Appeal might either confirm the conviction, or quash the conviction, but they were not entitled to order a new trial. That was my own original view, and I thought it was the best view or I should not have inserted it in the Bill. But during the progress of the Bill through your Lordships' House high legal authorities expressed the opinion that the Court of Appeal ought also to be given the power to order a new trial, and I yielded to that opinion, although it did not correspond entirely with my judgment. That provision for a new trial was contained in the Bill as it was introduced in the House of Commons; but the provision was struck out by the Commons. Mr. Akers-Douglas, Sir Edward Carson, Lord Robert Cecil, and others of experience and knowledge took an extremely strong view on this point, and I think there is a great deal to be said for the action of the Commons, because it approaches the confines of torture to put a man on trial twice for the same offence. Those are the only differences of substance—at least they are the principal differences—between the Bill as it left your Lordships' House last year and the Bill as it stands now, and I beg respectfully to commend it to the favourable consideration of the House.

Moved, "That the Bill be now read 2a "—(The Lord Chancellor.)

THE EARL OF HALSBURY

My Lords, as it is not my intention to move the rejection of this Bill it will not be necessary to go very minutely into the objections which I have to it. On the other hand, I think it would be uncandid, and perhaps not quite fair to my noble and learned friend, if I did not point out what was the substance of my objection to the Bill before we get into Committee. I protest, in the first place, against the proposition of the noble and learned Lord that this Bill is in a great measure necessary because events have occurred which raise the alternative of trial by Judges or trial by newspapers. That seems to me to indicate a weakness somewhere, to which I, for one, will not assent. I cannot understand why the legislation of the country in the most serious matter of the administration of the criminal law should be affected one way or the other because irresponsible persons think it proper to assume that they have knowledge superior to that of His Majesty's Judges.

I must say I a little dissent from one observation made by the Lord Chancellor —namely, that feeling has greatly changed in favour of this Bill. I cannot assent to that. I agree that dissatisfaction with the decisions of the Home Office has increased; and I do not wonder at it, when it is found that the only mitigating circumstance in a case of murder is that the murderer thought his victim was his father and shot him. It is said that a new trial can be had in all civil cases. Stated broadly like that, that is not true. It is one of those delusions which pass from hand to hand and nobody has yet apparently corrected the error into which fall people who are not familiar with the administration of the law in our Courts. But it is not true to say there is a right of new trial in civil cases. Upon the question of fact there is no right of new trial, and I deny altogether that you are now making the law as applicable to criminal cases the same as in civil cases. You are doing nothing of the sort. You are giving an absolute power to set aside a conviction on a question of fact. I object to that for two or three reasons. I regard it as a most serious constitutional alteration of our whole system.

A man has the right to be tried by a jury; and to say that the question may, be remitted to a Committee of Judges is to make a serious innovation in our whole legal system. I hope none of His Majesty's Judges will be angry with me if I say, after a somewhat extended experience, that in my view the judgment of a jury is better on a question of fact than that of the learned Judges, who are at times a little disposed to be too technical. At all events, the Constitution has made the tribunal on fact the jury, and for myself I very much regret to see an attack made on that institution. Further than that, the consideration of this subject has been made the opportunity of using expressions about the Judges with which I am sure the Lord Chancellor has no sympathy. Yet this question has arisen apparently, out of cases which were not decided by his Majesty's Judges at all; one case, the Beck case, for instance, was decided by a Recorder, and the Edalji case by the chairman of a court of quarter sessions. Any one would think from the cry that has been got up that no complaints had ever been made before our time against convictions. I remember Barber's case very well. That case was decided before one of the ablest Judges that ever sat on the English Bench, but I do not think that in connection with that case we ever had such observations made against the Judges as I was pained to see were made elsewhere.

I repeat that in my opinion the proposed change will greatly diminish the sense of responsibility in the jury. To my mind, nothing could be more mischievous than to give an unqualified right of appeal in every case of capital conviction. Last year there were twenty-eight capital convictions, and if this right were exercised, as we may assume it would be, there would thus be added to the list of cases twenty-eight which would have to be examined with that minute care which characterises an English trial for murder. I think that many people who speak and write on the subject have never witnessed an English trial for murder, for if any one wants an example of the minute and careful administration of justice it can be found there.

Then, too, if you take nine Judges from their ordinary avocations for this purpose, how are the arrears of work to be diminished, on account of which you are at this moment appointing a new Judge? Then you will have a great many more appeals subject to certain conditions. There were 12,000 people convicted last year, and what proportion of them would appeal I cannot say. It may be said that when loss of liberty and of life are at stake you ought to incur the risk of having a great many arrears; but I believe it is absolutely untrue to say that injustice is done in the administration of the law in this country. Moreover, by establishing this Court of Appeal, are you going to get rid of trial by newspaper? Will those who have commented on a public trial before a jury be silenced if they think there is reason to complain, because the case will be tried by a Committee of Judges?

To my mind, the worst feature of the whole system proposed is that witnesses are not to be heard. It is not, then, to be a new trial, for the life and body of the evidence, as more than one learned Judge has described it, will be lacking. The Committee of Judges are not to have the witnesses before them but they are to have the shorthand writer's notes; but the shorthand writer's notes will not tell the Judges how the witnesses looked, how they spoke, whether they hesitated, or how they stood the test of cross-examination. All they will have will be the record, faithfully taken down, I admit, of the evidence; and I must say I entirely approve of a shorthand note being taken of every criminal trial I do not say that it should necessarily be transcribed, but the note should be taken so that it could be transcribed if required.

These are but a few of the objections which I entertain to this new departure, but, for the reasons I have given, I do not think it necessary to say more at present. I deeply lament what I think is a reversal of our whole system. It is curious that while we are talking about altering our system and so bringing it into consonance with the practice prevailing in the United States, the United States are considering whether they ought not to alter their system and bring it back into consonance with ours, because of the gross abuses involved in this practice of appeal in criminal cases. It is not my intention to move the rejection of the Bill, but I shall endeavour, in Committee, to get rid of some of the evils attendant on its being passed, and I shall hope to carry the majority of your Lordships with me.

LORD ASHBOURNE

My Lords, I feel that this is an extremely important and delicate subject and one to be approached with the greatest consideration and care. It is impossible to overstate the importance of the proposal to found a Court of Criminal Appeal. The mere use of those words contains an immense statement of what may be an obvious and great piece of justice. I know of no civilised country that does not recognise the desirability of having some power of review and examination in criminal cases.

There is nothing new in this proposal-Some of the greatest legal reformers in this country have for the last half-century applied their minds to this question, not always from the same point of view, not always dealing with the same provisions, not always suggesting the same method or giving the same measure of relief, but all recognising that there should be a right of appeal in criminal cases where there was a possibility that a re-examination might prevent an injustice being done. The whole history of our law shows a steady and sometimes a rapid development towards reform in our criminal procedure. If one contrasts the present administration of our criminal law with what took place in the reign of George III. and long after, when people were hanged for the most trivial offences, one will see the vast development that has taken place. This idea of reform in criminal procedure has grown with our growth and strengthened with our strength. Trials are carried on with every desire to act fairly and to give consideration to every topic of defence that can be urged, and by a recent reform prisoners are now enabled to give their own story and their own point of view. The death sentence is now limited—and rightly limited—to cases not only of murder, but of deliberate murder.

But now a point has been reached. This, as I have said, is not a new Bill. It follows some forty or fifty previous Bills, all seeking to accomplish the establishment of a Court of Criminal Appeal. Therefore I think the noble and learned Lord on the Woolsack is justified in applying his mind as seriously and as earnestly as he has done to seeing whether the time has not been reached when a determined and resolute effort should be made to place such a measure upon the Statute Book. It is not possible in human affairs to get all minds to concur, but there is agreement as to a substantial part of this question of criminal law reform; there is agreement as to the fairness, the justice, and the obvious necessity of giving an appeal to a proper Court in the simplest way on points of law. That is not in controversy. Where differences of opinion and objections arise is as to the giving of an appeal upon questions of fact and upon sentences. The present system is unsatisfactory. It has worked for a great number of years, and I daresay it has often worked very well, but it has sometimes worked in a way that was not satisfactory. The system of the Home Office reviewing cases on petition of the prisoners has one advantage—the Home Secretary and his advisers are not bound by strict rules of law and precedure, and they can take an elastic, untechnical, commonsense view of the case. But, as I say, that system is not always satisfactory. Many thousands of petitions are presented to the Home Secretary every year. The Home Office has to apply itself to this enormously difficult task without any open assistance. It cannot have a hearing in public; it cannot invoke, as far as I know, the aid of an independent Judge who has not theretofore applied himself to the case. The Home Secretary has to deal as best he can with the particulars before him. It is a difficult branch of administration thus entrusted to an official, no matter how highly placed or anxious to do what is just. But, over and above that, I see it stated that Judges themselves are found not infrequently, after a trial, to invoke an investigation by the Home Office. That all goes to show that the larger provision comprised in this Bill is urgently needed. My noble and learned friend who has just spoken, and for whose opinion I have the greatest respect, as I am sure is the case with every Member of your Lordships' House, has put aside, I think too authoritatively, the effect of the interference of the Press and public discussion in reference to the administration of this jurisdiction. It is always a difficulty in the way of the Home Secretary to have discussions going on in the Press and efforts made to form and develop what is called public opinion, not for his assistance, but in order to lead him to a particular conclusion. I cannot see that this can be regarded as satisfactory, but if this Bill is not passed, what is the alternative? It strikes one with surprise that while in civil cases a man may appeal even to your Lordships' House, a man who has been sentenced to penal servitude, and has a strong objection, if not on a point of law, at all events on a question of fact, has no power to make an objection, except by a private petition to the Home Office. Surely that is a condition of things that can hardly be regarded as satisfactory. I do not know any other country possessing a system of legal jurisprudence that shuts out the element of appeal in criminal cases. The noble and learned Earl beside me referred to America. I am not going to defend the American system, but if I were a criminal, or at all events a person charged with crime, I think I should like to emigrate to America rather than stay here. But that is not the question. It is reasonable that there should be some Court which could be asked to say whether there was anything in the case which called for review, subject to the safeguards provided in the Bill. I admit that there is a danger that this change may tend to weaken the responsibility of the jury, but that consideration is not sufficient to prevent my looking at the purposes of the Bill and considering whether it cannot be made a useful and valuable measure There is also the danger that the Court will be congested with a great number of appeals. But I hope the Judges will use their discretionary powers with a firm hand. Moreover, there is no appeal on fact except by leave of the Court, and sentences may be increased as well as reduced. These are checks which were not contained in the Bill of last year. The Bill is a great experiment, and no doubt the teachings of experience will show that some amendment will be desirable, and will enable us to obtain from it a more useful and certain assistance in the administration of justice.

LORD COLERIDGE

My Lords, I hope this Bill will pass its Second Reading and eventually become law without any very substantial amendment. That there should be an appeal on all questions which are not of a criminal nature, and yet no appeal in cases in which life and liberty are at stake, must strike all persons as an anomaly which cannot be allowed permanently to exist; and if this Bill passes into law I venture to prophesy that those who come after us will wonder that we remained so long without remedying so substantial an injustice. Many efforts have been made to remedy this state of things. Your Lordships will recollect that years ago a very learned Commission was appointed to codify the criminal law and that that Commission reported in favour of an appeal on questions of law; but the rock upon which most of those recommendations have split has been the fact that the recommendations have taken the line of advising that in questions of appeal the Court of Appeal should be able to grant a new trial. There are obvious objections to this course—objections on the score of delay, on the score of being unable to get together the witnesses, on the score of expense, and, more potent than all, there is the objection that if the Court of Appeal grants a new trial on the ground of misstatement of fact that is equivalent in law and in logic to their stating that the man ought never to have been convicted, and if he ought never to have been convicted then by our law he is entitled to acquittal. Therefore there was a certain illogicality running throughout the recommendations in suggesting that the Court of Appeal should, in one breath, say that a man ought not to have been convicted upon the evidence, and give the go-by to the old maxim that the prosecution must prove the case beyond reasonable doubt or otherwise the prisoner is entitled to his acquittal. This difficulty is removed by the present Bill, and I presume the really disputable point in the Bill is the question of appeal on matters of fact. To my mind that is the most important and the most valuable part of the Bill. The public is not interested in the unravelling of knotty points of law; what the public is interested in is to see that substantially no injustice is done so far as human foresight can prevent it.

No one can doubt that mistakes have been made and will be made. Mistakes may arise out of questions of identity, they may arise out of a defence of alibi, or they may arise out of placing too much trust or reliance on the evidence of experts in handwriting. There are other grounds on which mistakes have been made and will be made, and when made they have led to injustice. It may be said that such mistakes can be corrected by the Home Office and its officials. No doubt that is so, but that is a tribunal sitting in secret which does not give its reasons; and, though I do not doubt for a moment that they deserve every confidence in the manner and the result of their investigations, yet you cannot expect people outside to have the same confidence in a secret tribunal of this kind that they would have in a public tribunal. For these reasons I trust that the Bill will pass into law without any essential change.

*THE MARQUESS OF LANSDOWNE

My Lords, I hope the noble and learned Lord on the Woolsack will not be shocked at my temerity in rising to say two or three words before he replies. The noble and learned Lord who has just addressed us said a moment ago that only lawyers were interested in these knotty points of legal procedure. I am not quite sure that I entirely admit that. I am quite prepared to admit that only lawyers may be competent to discuss them thoroughly in all their technical bearings. But the public is interested, I think, and very much interested in the question that we are discussing this evening. We, the lay Members of your Lordships' House, are always at considerable disadvantage in debates of this kind, and we are usually glad and ready to be guided by those who do possess the requisite amount of expert knowledge and to the best of my recollection we are generally fortunate in finding that the eminent lawyers who sit in this House are able to give us, without distinction of Party, advice which the House is able to follow as a whole.

But upon this occasion I own I have listened to the discussion with feelings of some misgiving. It appears to me that we are all of us agreed up to a certain point, and up to a certain point only. We all desire to see some change in the present law. We are all dissatisfied with what the noble and learned Lord described as trial by newspaper. We are all ready to see an appeal given in criminal cases on points of law; but beyond that point there does not seem to me to be any unanimity. My noble and learned friend beside me, Lord Halsbury, is certainly unable to agree with the noble and learned Lord on the Woolsack, and so far as I was able to follow my noble friend, Lord Ashbourne, he does not seem entirely to agree with either of those two great authorities. Then we all remember the speech which the Lord Chief Justice delivered last year, and we have no reason for believing that the noble and learned Lord has changed his mind.

Speaking as an ignorant layman, there are one or two points in the Government Bill which I regard with a considerable amount of apprehension. There is, I think, in the minds of many of us an uneasy feeling that if the Bill is likely to do good in certain cases by preventing a miscarriage of justice in such cases, at other points it may lead to a very inconvenient disturbance of our judicial system. It seems to me to follow obviously that if this Bill becomes law there will be a great increase in the number of criminal appeals. In capital cases the right of appeal will be exercised without the deterrent effect of a possible increase of the sentence, and is it not almost inevitable that our already overburdened tribunals will have thrown upon them a great additional burden by the number of these appeals. Is it not also obvious that a great expense will be occasioned by the number of additional trials which will take place and, I presume, the number of additional Judges who will be required to try them?

There is another point which seems to me to be intelligible even to the understanding of the humblest layman, and it is this, that the passage of this Bill cannot fail greatly to diminish the feeling of responsibility which now attaches to our jurymen, and that it will be likely to lead them to be less careful than they are now in the performance of their difficult and responsible duties. Again, if these cases are to be heard on appeal, the second trial, in the absence of the witnesses, is likely to be less conclusive and satisfactory than the original trial. These are all points which seem to me to be comparatively simple and easily intelligible, and I confess that they are points which fill me with a certain amount of apprehension in regard to this Bill. Before sitting down I venture to make, with great deference, a suggestion. Upon former occasions when those differences of opinion have arisen there have been informal exchanges of opinion outside the House by its great legal authorities. I cannot help hoping that between the Second Reading debate and the Committee stage it may be found possible, as it was found possible last year, to find some means of reconciling the divergent views which have been expressed this evening, and of submitting the Bill to the House in a shape which may make it acceptable to all of us without the apprehensions which some of us now feel.

THE LORD CHANCELLOR

My Lords, though this debate has been short, the subject-matter of it is of very real importance. I have never attempted to attenuate the importance of the subject, knowing as I do that the giving of an appeal of this kind is in substance a novel proceeding in the criminal law of this country. It is not, however, a proceeding which has been thrust un-expectantly or without long preliminary deliberation upon Parliament. It has been the subject of deliberation by many very distinguished men, and I hope we shall now come to a satisfactory conclusion upon it.

I can only say that I have always been willing, and always will be, to attempt to come to an agreement on any measure in which I have been interested, but I must say that some of the differences are more than skin deep. However, I need hardly say that I will respond to the expression of hope which the noble Marquess has uttered. Everybody agrees that on questions of law there should be an appeal, but questions of law are very rare in criminal cases. It is nearly always a question of fact, either as the sole element or as the main ingredient in it. The reason for wishing to have an appeal on the question of fact is derived, in the first place, from the antecedent probability that human nature will make mistakes, or is liable to make mistakes, and that there ought to be some means of obtaining a skilled review in appropriate cases. It is a terrible thing for a man to be convicted. It ruins his future; his character is gone, and it causes infinite pain and anguish and misery to all who belong to him.

But apart from the antecedent probability of error there is the acknowledged fact that error exists. We are constantly investigating in this House and in the Court of Appeal cases in which juries have gone wrong on questions of fact; and we are often unable to agree with the views of Judges on points of law and on directions of law upon the question of fact and their treatment of questions of fact. If men are liable to go wrong in their judgments in civil causes, why are they not under similiar liability in criminal cases? In a civil cause any one can appeal down to £50; but that a man should have no right of appeal against a conviction which may involve penal servitude and a career and character blasted for life is most extraordinary, and in this position this country is unique among nations. I do not believe there is any country that has not some form of appeal.

When I spoke of trial by newspaper, I meant that, when a case arose in which facts were disputed, newspapers brought the matter forward, partially and inadequately, and what agitated the public mind was that there was no impartial tribunal to settle the dispute. I put aside the question of the necessity of appointing more Judges; we are not so impoverished that we cannot afford £15,000 or £20,000 for such a reform. As to the impairing of the sense of responsibility among jurymen, I do not think the knowledge that there is an appeal will influence their consideration for a moment or affect their judgment. If such knowledge would have such effect, then it is the most complete condemnation of the jury system applied to civil causes. In answer to what the noble Marquess said, may I offer him in the first place an exhortation, and in the second place a respectful admonition. The exhortation is that he will take part in legal discussions. The law is nothing but educated commonsense as a rule, and as he possesses common-sense, although he has not had a special legal education, I can assure him that his contributions will be most grateful. The admonition is that difference is the breath of our nostrils, and that there is no likelihood of unanimity among members of the legal profession. In reply to the remarks of the noble and learned Earl, it is to be observed that among lawyers there are at the commencement always differences of opinion upon, and objection to, any reform of the law; but I will venture to prophesy that in two or three years this reform will receive a chorus of approval from the profession and gratitude will be accorded your Lordships' House for having passed it into law.

On Question, Motion agreed to. Bill read 2a accordingly, and committed to a Committee of the Whole House.