§ Order of the Day read for House to be put in Committee.
§ Moved, "That the House do resolve itself into the said Committee."—(The Lord Chancellor.)
THE EARL OF HALSBUBY
Before the House goes into Committee, I would like to take this opportunity of saying a few words in regard to some of the provisions of this Bill, because really the explanation I wish to make is one that is not applicable to any of the Amendments that I have to move. I am anxious to explain why I do not move a great number of Amendments which appear to me to be appropriate to the Bill as it stands. I confess I entertain very grievous doubts whether the Bill would prove workable, even if it were amended to the extent to which I had wished to amend it. Bui I have felt that if I had moved all the Amendments which are in my mind to move—for example, upon the question whether or not the Court of Appeal, if constituted, ought to have before it the witnesses, for reasons which I gave on the Second Beading, and which I do not mean to repeat—I quite think that if that Amendment were carried it would be absolutely fatal to the Bill. I quite agree that where you are dealing with the enormous amount of work which undoubtedly would arise if such an Amendment were to pass into law, and if the Bill were to be loaded also with the necessity of having all the witnesses who had been heard before in the original trial, it undoubtedly would be fatal to the Bill, and I assure my noble friend on the Woolsack that it is not my desire—at all events, by indirect means—to wreck the Bill. I am anxious, if it is to pass, that it should pass with as little difficulty in its administration as it is possible to procure. I associate myself with my noble friend in his appeal to your Lordships that one should not be supposed to be excluded from discussing the questions arising here by reason of not being a lawyer. I believe that many of the questions which arise, and which are very broad questions—questions both of policy and of ordinary experience of life—are questions on which your Lordships are quite as well qualified as any lawyer to decide, whether you have been trained as 236 lawyers or not. No doubt a great many of your Lordships have been, in the course of presiding at quarter sessions, very familiar with the administration of justice in the very form in which this Bill brings the matter before one's mind. The only difference, I think, between my noble friend and myself is that I do not think that a lawyer ought to be excluded from having an opinion on the Bill, and that seemed to be rather the tendency in his mind. I think he was good enough to exclude myself from the category of those persons who are always against any amendment, but he attributed that attitude to lawyers generally. I think he was unjust to his profession, because I have heard of Sir Samuel Romilly, who was a lawyer, and I have heard of Jeremy Bentham, concerning whom it is hard to calculate the amount of amendment of the law for which he was responsible, to a greater degree perhaps than anybody else. Whatever may be the real questions we have to determine here they are not technical at all. I have not the least notion how it can be said that any part of this discussion shares any technicality at all. The broad question is whether, when a person has been tried, and tried openly and in the presence of a person who will direct a jury in point of law and to some extent guide their judgment, he ought to be tried again—and, as I understand, the idea of the Bill is that he should be tried again by a Committee of Judges, and tried in private. I disapprove of that. I want to make that protest: but inasmuch as there seems to be a desire in some quarters that there should be what in other aspects they avoid as much as they can—namely, a new trial—I desire that that new trial should be as efficient a new trial as it can be. I only want to make one protest. The noble Lord said that there was apparently in some minds an idea that you could get perfect wisdom and perfect knowledge in a human tribunal. I do not suppose so at all—indeed I go further than the noble Lord, because my impression is that if the first jury made a mistake the second Committee might make a mistake too, and, as I have already said, I do not imagine that you will get what is supposed to be one of the great objects to be achieved by this Bill if you have such a trial as the Bill contemplates before a Committee of Judges. 237 That is all the protest I wish to make. I have abandoned any idea of amending the Bill in any sense which would be inconsistent with the whole idea of the Bill, and therefore I give up the idea of doing what I had intended to do originally, because I think it would be an indirect way of destroying the Bill.
Let me say with regard to the Amendments I have put down—although I do not wish to discuss them at this preliminary stage—that a good many of them seem to me proper to be suggested to the noble Lord, but if he will not take them as they are, or modify them in any way, I will not press them to a division. They are not intended to obstruct the Bill in any way, but I merely suggest them to him as what I think would be desirable, and if he will take them and mould them in any way according to his fancy I shall be quite content. If not I shall not press them to a division. But there is one Amendment which I must press, and which I will deal with when it comes. On that Amendment I am afraid I shall have to divide the House, because I fear that my noble friend upon the Woolsack and myself are irreconcilably opposed on the particular matter dealt with. I, however, wish the noble Lord to understand, with regard to the other Amendments, that if he will not accept them as they are, or moderate them, I shall certainly not divide the House upon them.
§ THE LORD CHANCELLOR (Lord LOREBURN)
I should be indeed wanting in courtesy to the noble Earl if I did not say a few words in answer to the remarks he has made to your Lordships. I am very sensible of the handsome manner in which he is treating me with regard to this Bill. I hope to be able to accept some of his Amendments, and I should be very glad if I could accept more. I will only say, with regard to the view that the legal profession ought not to be excluded from consideration of this Bill, that that thought never entered into my mind. I should be very ungenerous indeed, and a very unworthy son of the Bar, if I ever entertained such an idea. All I mean is that this ought not to be exclusively regarded as a legal question. There are questions of policy on which lay judgments are just as good as legal judgments, and all I meant when I took the liberty of warning 238 the House against a too implicit reliance upon legal authority was this—that if you search for yourselves the history of legal reform, there is no one who is familiar with it who will not say that with the best intentions and the highest motives the greatest among lawyers have distinguished themselves by resisting the most obvious and necessary reforms. That has been the systematic tendency, and I may mention one instance which occurred only four or five years ago. Before that a man could not give evidence in his own behalf in a criminal Court—an idea scarcely credible. The noble Lord brought in a Bill to amend that state of things, and I had the happiness I to assist him. With regard to that measure there was an almost universal chorus of protest among the members of the legal profession. Not more than five years have elapsed since that measure was passed, and I do not think that any-one practising at the Bar or above it would deny that that legislation of four or five years ago has been a most conspicious and real success. It was so stated by the Lord Chief Justice of England last year.
I will not further trouble your Lordships now, but I thought I ought to say a few words to acknowledge the spirit of my noble friend's remarks.
§ On Question, Motion agreed to.
§ House in Committee.
§ Clause 1:—
§ THE EARL OF HALSBURY ,
in moving an Amendment substituting the Lord Chancellor for the Lord Chief Justice as one of the nine Judges constituting the Court of Criminal Appeal, said that as this was one of the Amendments to which he had already referred, he thought he ought to say upon it that the whole theory of administration of justice had been to make the Lord Chancellor the Minister of Justice, and it appeared to him that the present Bill was somewhat irregular in dislocating that arrangement and remitting the power in a great measure to the Lord Chief Justice. He was sure that the Lord Chief Justice would not suppose that there was the least idea in his (Lord Halsbury's) mind that he was not perfectly able to do anything that could properly be done, or that his remarks had any reference in any way 239 to a sort of precedence of the hierarchy. But he thought this was an attempt to undo what had been done in the Act of 1875, and to displace the Lord Chancellor from doing what in his opinion he ought to do. The Lord Chancellor ought to be the person to decide upon questions such as this, where they were dealing with selection and so on, and it would be a reversal of the policy that had been found to be useful hitherto to substitute the Lord Chief Justice in the present Bill. For that reason he moved the Amendment, but for the reasons he had already given it was an Amendment which, although he moved it, he would not persist in unless the noble Lord (the Lord Chancellor) himself acquiesced in it.
In page 1, line 9, to leave out 'Lord Chief Justice' and insert 'Lord Chancellor.'"—(The Earl of Halsbury.)
§ THE LORD CHANCELLOR
I hope I can meet the noble Earl in regard to this Amendment, and in regard to two or three of those which follow. I agree to what he says about the Lord Chancellor being the responsible person relating to the administration of justice. But this is an appeal relating to criminal justice As a matter of fact since the time of the Star Chamber the Lord Chancellor has always kept out of criminal trials, and he being an Executive Officer very wisely so acts. Therefore the Lord Chief Justice would practically work the Bill, if I may use a popular expression, but still, in the matter of the selection of Judges, all the Judges will be selected with the consent of the Lord Chancellor or by the Lord Chancellor. If the noble Earl will accept this I think it might meet his views—instead of substituting the Lord Chancellor for the Lord Chief Justice perhaps he will take these words, "appointed for the purpose by the Lord Chief Justice with the consent of the Lord Chancellor." I think that would meet his point and I am quite prepared to move that if the noble Earl will agree to it.
§ Amendment in the form suggested by the Lord Chancellor agreed to.240
§ THE EARL OF HALSBURY ,
in moving an Amendment substituting the Lord Chancellor for the Lord Chief Justice as the authority vested with the appointment of the Judges constituting the proposed Court of Criminal Appeal, said that in the same section there was a question of the constitution of the Court. He confessed that he was not able to understand why nine Judges should be selected. He thought that it would be a much more appropriate thing that all the Judges of the King's Bench should be Judges in the Criminal Appeal Court; it gave a larger area of choice. He left the question of the selection untouched, or at all events to be dealt with in the way that the Lord Chancellor had suggested, and he wished to enlarge the area within which Judges might be selected for the Court of Appeal. He thought that that proposition had the advantage that great difficulty might be found if it were confined within the narrower limits, and it would be better to widen the area, because it was to be remembered that this was one of the cases in which the mere fact of delay, even a short delay, might be very serious indeed. Taking the case of capital offences the postponement of the decision of any appeal would be an unmixed evil. Nothing could be worse than what they saw in certain countries in that respect. He did not wish to particularise countries, but there were some countries in which the appeal was not heard until a year or two after the offence was committed. That was an unmixed evil, and of course if the area of selection was narrowed it rendered it more likely that there would be delay than otherwise. For that reason he suggested—although he had not himself put down an Amendment—that the whole of the King's Bench Judges should be members of the Court of Appeal.
In page 1, line 14, to leave out 'Lord Chief Justice' and insert 'Lord Chancellor '."—(The Earl of Halsbury.)
§ THE LORD CHANCELLOR
Last year all the High Court Judges were proposed—all the High Court Judges, I think, and all the Court of Appeal.
§ THE LORD CHANCELLOR
Yes, but the reason the change was made in 241 the House of Commons—and it was strongly represented to me—was that it was desirable to have picked—selected—Judges—I mean not picked and selected by the Government at all, but with the consent of the Lord Chief Justice, so that you should have Judges on a rota, familar with the criminal business, and with real knowledge and experience in working this Act, which of course has undoubtedly difficulties in it. I hope that it will be allowed to remain as it is. The number is surely ample—nine in all. They may sit in three divisions. Three Courts may sit at once. It is quite certain, I think, that there will not be any pressure of work, or any arrear of work, with three Courts able to sit for that purpose. I therefore hope that the noble Earl will be content with a similar Amendment to the one which I suggested before, inasmuch as this relates, after all, to the selection of Judges, which has been always heretofore a function performed by the Lord Chancellor. I therefore suggest that it will be sufficient to say "the Lord Chief Justice of England with the consent of the Lord Chancellor." Will not that be a satisfactory solution?
§ * LORD ALVERSTONE
suggested that the Lord Chancellor should consider the matter between then and the Report stage. At the present time under the Crown Cases Reserved Act, there were always five Judges, and he thought it would be desirable in the present case to have more than three. He was rather disposed to think that the better course would be to make all the Judges of the King's Bench Division members of the Court, but to leave their selection and the decision as to who should sit from time to time with the Lord Chief Justice with the consent of the Lord Chancellor. That was what was practically going on at the present time, because he himself had the duty of selecting, as Lord Chief Justice, who should sit as Judges in Crown Cases. He did not suppose that the Lord Chancellor wanted to be troubled with the matter at all, and he was rather disposed to think that the better course would be to have all the Judges of the King's Bench Division, and to leave the selection of the others to whomever the Lord Chancellor thought right. He had no desire whatever to intrude himself at all in the matter of the selection of Judges, in the ordinary sense 242 of the word, but he was quite satisfied that the selection of the members of the Court for the actual working of this Bill from day to day must be left in the hands of the Lord Chief Justice; otherwise the Bill would become unworkable.
§ THE LORD CHANCELLOR
I need hardly say that I will consider the matter very fully in the sense my noble and learned friend suggests. I will speak to him about it in the interval if he will allow me, and meanwhile I propose that the Amendment should be left as I have suggested, with the understanding that it may be altered on Report after consultation.
§ On Question, Amendment in the form suggested by the Lord Chancellor, agreed to.
§ LORD ALVERSTONE moved an Amendment of which the Earl of Halsbury had given notice. He thought that it would be better that if the Lord Chief Justice was not able to preside the senior member of the Court present should be the President of the Court.
In page 1, line 23, to leave out the words 'such member of the Court as the Lord Chief Justice directs' and to insert the words 'the senior member of the Court present.'"—(Lord Alverstone.)
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 agreed to.
§ Clause 3:
§ THE EARL OF HALSBURY ,
in moving an Amendment providing that a certificate should be obtained from the Judge who originally tried the case that it was a fit case for appeal, said that it was the Amendment upon which, in the remarks 243 he had addressed to the House before their Lordships went into Committee, he had intimated that he should have to ask the House to give an opinion. The Amendment made it a condition that the opinion of the Court of Appeal should not be applied for without the certificate of the learned Judge before whom the person was tried that it was a fit case for appeal. It seemed to him that in order to render it possible to work the Bill care must be taken not to admit frivolous appeals from the 12,000 persons who were tried last year, and the equivalent number, or something like it, who would be tried in the year to come. Was it possible to suppose that everybody would not try as much as they could to get an appeal? Probably they would think that they had some chance, at all events, which at present they had not, and of course they would appeal. Why should they not appeal? It was said, "Oh! but then the Court of Appeal will refuse." But his object was to prevent an application to the Court of Appeal except upon some reasonable grounds, and he submitted to their Lordships that nothing could be more reasonable than that. It was an argument with which they were very familiar in the Courts in civil cases—whether the Judges themselves were satisfied with the verdict. But he did not ask to go so far as that, but merely wished that the Judge should say whether it was a fit case for appeal. It appeared to him that that was the only possibility of making the Bill workable at all. If they allowed a whole flood of appeals to overwhelm the Court of Appeal, not only was the whole litigation of the country sacrificed to get at the one out of 12,000 who ought to have an appeal, but it seemed to him that they would very much imperil the respect for the course of justice if they allowed everybody—even those who might have been convicted half a dozen times before—to have the right of appeal. He put the proposition in the baldest form before the House. Perhaps he might be permitted to use the weapon which the Lord Chancellor himself was fond of using, and to say that this was not a question at all for lawyers. He put it to the plain common sense of the House, what would be the inevitable result of allowing unlimited appeal, because that was what it came to unless they had some check of that sort? He begged to move.
In page 3, line 6, after the word 'appeal,' to insert the words, 'and upon the certificate of the Judge who tried him that it is a fit case for appeal.'"—(The Earl of Halsbury.)
§ THE LORD CHANCELLOR
My Lords, this is an Amendment which really is of a very serious character. When the Bill was first introduced into the House last year the right of appeal was given without qualification, without reserve, without any preliminary permission from anyone being obtained, and that is the state of things that now exists in civil cases. My idea at that time was to place the person whose life, reputation, or liberty might be at stake in as good a position as the person who had £50 or £100 at stake, and if the Law Courts are open to the person who has a small sum of money at stake, ought they not all the more to be open to the man for whom everything he possesses, and all his chances of happiness or prosperity in the future, are at stake? That was the way in which the Bill was first introduced last-year. There was unlimited right of appeal. I was pressed and I gave way—I do not know whether unduly so, I hope not—but I accepted the suggestion that it should only be with the leave of the Court of Appeal, and that appears in the Bill. Accordingly, the Bill as it stands at the present moment provides that no man can appeal unless he gets the leave of the Court of Appeal. There is that safeguard against frivolous appeals. About the number of them I will say a word in a moment. Now an additional permission, which was not mentioned last year, is proposed to be inserted by the noble Lord, and not only is the leave of the Court of Appeal to be obtained, but also the permission of the Judge before whom the case is tried.
§ THE LORD CHANCELLOR
I beg pardon—I accept the correction—that it is a fit case for appeal, which is exactly the same thing as giving leave of appeal. Surely you will always give leave of appeal if it is a fit case and you will never give leave to appeal if it is not a fit case. Accordingly when you say that there is to be a preliminary bar, namely, that you cannot appeal unless you get 245 the permission of the Judge, and he thinks it is a fit case, it is adding a second safeguard, which, as I venture to submit, is perfectly unnecessary to the exercise of this right, attenuated as it was from the original aspirations that I had, and it is doubly placing a person convicted of a crime at a disadvantage as compared with a person mulcted in damages, or with money at stake. Now what is the effect of the clause? It is putting two gates across the road, or making a man go through two nets before he can get through. I do not, with all respect, see what the reason of that can be, except one reason, and that is the reason of over pressure of business. Have you not an ample safeguard when you say that there can be no appeal unless the Court of Appeal gives leave? Apart from the question of plethora of business—I leave that aside—is there any reason that justice demands why you should not be content with one safeguard, namely, that the Court of Appeal itself should give preliminary leave? The question reduces itself to this. The point is as to whether, for the sake of saving expense and avoiding pressure of business and plethora of work in the Courts, you are to put in this second safeguard for the purpose of barring some who otherwise might have an appeal, and that is a point to which the noble Earl alluded. I begin by saying that there is a great number of persons convicted who know they are guilty, and who plead guilty, and if you examine the Home Office Returns—I am sorry to say I have not got them before me now; I had them last year but I did not appreciate that this point would to-day be raised—your Lordships will find that the number of appeals for mercy, for diminution of sentence, and complaining of unjust convictions are very far less than 1,000. I do not remember the numbers, but they are not very very numerous.
§ THE LORD CHANCELLOR
I think that is about right—600 or 700. We have it therefore that the number is 600 or 700. Now let us further examine what the nature of those cases is. They are quite short eases, nearly all of them; your Lordships have sat at quarter 246 sessions, and you know that most of the criminal trials are quite short and simple things, and it would not take long to decide whether leave of appeal should be given; you would immediately say, "It is quite obvious this cannot be allowed," and, as has already been said, there are only about 600 or 700 of them altogether. I ask your Lordships not to put an additional bar, and when you are giving a boon—for it is a boon, relieving the feeling of apprehension in the country, which I think is based upon the generous idea that in principle it is better that several guilty men should escape than that one innocent person should suffer—I hope there will not be any unnecessary bar placed in the way of this Bill, and that notwithstanding the admitted and immense authority of the noble Earl in this House I may be able to secure a majority.
§ LORD ALVERSTONE
said that the speech which the House had just heard from the Lord Chancellor made it necessary that he should trouble their Lordships again with a few observations. He had no intention of repeating the speech he had made last year, especially as he was rejoiced to find that it had made such an impression upon the Leader of the Opposition that he had actually remembered it. He wished to enter a very respectful protest against the suggestion that because he and others ventured to think this Bill required amendment they were opposing reforms of the law. He appealed to his own record, and he was certainly not aware that on any occasion he, although a lawyer, had opposed reforms of the law which had turned out afterwards to be salutary. Certainly his recollection did not concur with the Lord Chancellor's with reference to the state of public feeling at the time when Lord Halsbury's measure was introduced. There was an enormous mass of professional feeling in favour of that Bill. He wanted to bring the mind of the House back to the point suggested by the Amendment of Lord Halsbury. It only applied to appeals upon questions of fact. Lord Halsbury did not propose to interfere with the unlimited right of appeal for mis-reception of evidence, non-reception of evidence, or misdirection of the jury; therefore in the case of an unfair trial, or an improper ruling upon a matter of law, there would be a right of appeal. 247 But what Lord Halsbury had said, and what he (Lord Alverstone) ventured to submit to their Lordships the Government ought to consider was that they ought to lock at the whole question when they were dealing with appeals upon fact. It would be brought out in relief when they considered, as they would in a few minutes, an Amendment as to whether there should be an unconditional right of appeal in capital cases. He could conceive nothing really worse in regard to trials for murder than that they should be invariably—as they would be—tried again before three Judges. But what really would happen? As the Lord Chancellor had said, in the case of a very large proportion of those who were convicted—an extremely large proportion, he believed about 95 to 96 per cent.—there was no question at all about their guilt. Under the present Bill no costs were incurred, counsel might be assigned, and there was therefore every temptation to persons to appeal, especially in the case of those familiar with crime, hardened offenders who had had experience of Courts of Criminal Law. He must again strongly press upon their Lordships that which had never met with any answer from the Lord Chancellor or anybody to whom the argument had been addressed. He felt most seriously the peril in which innocent people would be placed if it was known that there was an appeal upon all cases, even with the leave of the Court. He was satisfied that at the present time it was a great safeguard to innocent people, and a great safeguard to people who were guilty but against whom there was no clear evidence, that juries were told that they ought not to convict unless they were satisfied that the prosecution had made out their case, and that they were the final arbiters on matters of fact. The Lord Chancellor, if he would pardon him for speaking plainly on the matter, had likened this Court of Criminal Appeal to a Court concerned with Civil proceedings, and had said that one was concerned with life or liberty of the subject while the other was concerned with money—with matters involving perhaps £5 or £10. If that was the real comparison, he would go with the Lord Chancellor heart and soul, but he would again point out that the position in criminal cases was entirely different from that in civil cases. In criminal cases there were no two sides. It 248 was the glory of English law that the prosecution had to make out their case, and that the prosecution were told that the onus was upon them of proving their case; juries were told by Judges of Assize, over and over again, that they were to be satisfied that the case was made out by the prosecution, and that there was no onus upon the prisoner to answer anything unless that case was made out. It must impair the feeling on the part of juries of reluctance to convict in cases of doubt if they thought that their convictions could be set right upon appeal by superior Judges—superior lawyers. That was where the peril of the innocent man came in. Juries, knowing that there was a right of appeal, would be more willing to convict in doubtful cases, and the Court of Appeal would then have no witnesses before them, and they would be obliged to say, "Well, there has been a conviction by a jury who have heard and seen the witnesses, and we think we ought not to interfere in the matter." He had mentioned this last year, and the only observation that he could remember which had been made in reply, was that his fears were absolutely ill-founded. He had had twelve months more experience since he made the speech in question, and he had had the opportunity of talking over the matter with those of his friends who were responsible for the administration of justice, and who desired to see that nobody but guilty people were convicted, and they all felt that this unlimited appeal upon questions of fact would create very serious dangers. There was no such appeal known to the law even in civil cases—namely, that where there had been a trial by jury, Judges were to reverse the findings on fact of the jury. The Lord Chancellor had said—and he entirely agreed—that the motive of the present Bill sprang from generous feelings. He hoped the Lord Chancellor did not exclude those who differed with him from sharing in those generous feelings. They all desired that every possibility of injustice in the administration of the law should be done away with. In the last few years, no doubt, cases had occurred which had roused the public mind. In one and all of them an appeal on fact would not have been of the slightest use, because in some cases the evidence was overwhelming, and in other cases there had been improper trial, which would be dealt with by the Bill as a matter of law. 249 There was power on the part of the Home Secretary to refer any case to the Court of Appeal, and he asked the Lord Chancellor not to suggest that he and those who thought with him were trying in any way to wreck the Bill. He himself wanted to see it passed. There were many things in the Bill which were most excellent. But as regarded appeals on matters of fact, he thought they ought not to go too far, and take a step which they could not go back upon. It did not seem to him unreasonable that in matters of fact the Judge should be allowed to say, "I think this is a case in which there should be an appeal." He must reluctantly put himself in opposition to the Lord Chancellor in respect of this matter. He desired to assist him always in matters of reform, and he only opposed him on this occasion because, with his great responsibility in these matters, he felt that this unlimited power of application for leave to appeal in matters of fact was going to hamper the Courts for no useful purpose. He thought the Bill went far beyond the necessities of the ease, and for that reason he asked the Lord Chancellor to pause before he said that he would not accept the Amendment.
§ THE LORD CHANCELLOR
I am sorry to trouble your Lordships with a second speech, but the intrinsic importance of the case, and the fact that I cannot conceal from myself that the fate of the Bill rests upon the decision of this matter, leads me to ask your Lordships' indulgence, for a few minutes, in order that I may say a few words further in answer to what has been said by the Lord Chief Justice. Really the speech of the Lord Chief Justice was a speech against allowing an appeal on questions of fact at all. That is what the pith and marrow of his argument was. It was a concession to weakness, and one which therefore might be granted with some safeguard which otherwise would not be justifiable. Now what is the reason—if I may be excused for repeating myself—what is the real reason for saying that there ought not to be an appeal upon questions of fact? There is always an appeal in civil cases upon questions of fact.
§ THE LORD CHANCELLOR
My noble friend will admit that the Court is open to receive an application for appeal in civil cases, and that is all I ask here. I ask for the same right in criminal cases as already exists in civil cases. The Court is open to receive an application for appeal in civil cases; I ask that it should be open to receive an application for appeal in criminal cases too. Decisions of Courts on questions of fact are constantly being reversed or corrected in Courts of Appeal. What does the Court of Appeal in England do all the year round, sitting in two divisions, except correct the mistakes in decisions on fact or in law which have taken place at trial? And the fact that they are so occupied, and that they are constantly reversing decisions of the Courts below, and then that their decisions in turn come to your Lordships' House—and we are working very hard here—shows that there is a liability to error. I want to argue this not as a matter of feeling but as a matter of reason. There is a liability to error which affects Courts, Judges, and juries in the same way as it affects all of us, the only difference in the case of your Lordships' House being that as there is no Court of Appeal to sit over us our errors are never detected and exposed, as very often they might be if there was a Court of Appeal over us. That is the case in civil Courts. Will anyone explain to me by what miracle of nature the same men sitting as Judges, when they don the scarlet and ermine and are accompanied by trumpeters at Assize Courts—
§ THE LORD CHANCELLOR
I withdraw the expression at once. I had no idea of saying anything offensive.
§ THE LORD CHANCELLOR
When they appear in their dignity as Judges in a Criminal Court why are they more free from liability to error than they are in a Civil Court? That is what I cannot understand, and I have never been able to understand it. That is precisely one 251 of those points which I say the lay mind can judge as well as anybody else. It cannot be said that the Judges are inspired in the one case and not in the other. They do their best, and show great learning and great knowledge, and they have earned the confidence of the civilised world. That I fully admit, and no one feels it more than I do; but there is liability to error, and if it exists in civil cases, and demonstrably exists, why are we to suppose that it never exists and that infallibility is substituted when the scene is changed to a Criminal Court? But it is only partial infallibility after all, because it is admitted that there ought to be an appeal upon points of law, although it is not admitted that there ought to be an appeal upon points of fact. The argument appears to be that when you go into a Criminal Court the Judge and the jury may make mistakes upon points of law but cannot make mistakes upon points of fact.
I would like to say one word about the theory that if you do not stop cases on their way to the Court of Appeal you will put in jeopardy the innocent. Just let me appeal again to the lay mind. I have done so already, and I am ashamed to repeat it, but I must do so, for I am really practically alone in fighting this Bill, because after all it requires technical knowledge What on earth—if I may ask the question—is the ground for supposing that a jury will not do their duty, but will sacrifice innocent men, merely because they know that with the leave of the Court there may be an appeal? I do not believe that that will be so, and I put it to every one of your Lordships whether it is in the least degree human, or likely, or in accordance with our nature, that when we are sitting as a jury or as Judges trying a man for his liberty or his life—whatever you please—we are going to say at the back of our minds, "Oh, there is a Court of Criminal Appeal, and the prisoner can get an appeal possibly: therefore we will not give the same attention to the case that we would otherwise give." Is this true of human nature? Is it true of Judges, or of juries, or of Chairmen of Quarter Sessions? I submit that it is not, and if that is the only argument then the only argument for not allowing appeals upon questions of fact disappears.
252 Let me correct one more thing. What is asked by this Amendment is that the Judge who presided at the trial should certify that it is a fit case for appeal. What case? Not merely trials of fact; his certificate must be obtained not where it is a question of fact alone, or mixed law and fact, but upon any other ground which appears sufficient. If this Amendment were accepted you might discover afterwards some new evidence (some crushing conclusive evidence) and yet, the certificate of the Judge not having been obtained, it would be impossible to have an appeal against the verdict of the jury. I respectfully submit to your Lordships that this is an Amendment which ought not to be allowed, and that it is really an Amendment of a very serious kind, and one which is likely to have most serious effects upon a Bill which I hope your Lordships all desire to see passed.
The EARL of HALSBUKY
regretted having to speak again on the subject, but he thought the Lord Chancellor had failed to understand the objection of the Lord Chief Justice. The Lord Chancellor was arguing as though only one single mind was applied to a particular case. That was not so at all. It had happened again and again that juries were very much divided—some being for conviction and some for acquittal. There was not an assize and not a sessions in which that condition of things did not arise. What was the temptation when they had that condition of things, and when they had, perhaps, one member of the jury objecting on one side or the other, whether for acquittal or conviction? Was it not a temptation for the jury to say, "Well we are not agreed, but the Court of Appeal will set it right; let us return our verdict in accordance with the opinion of the majority "? It seemed to him that that would almost invariably happen. The noble Lord upon the Woolsack would not appreciate, apparently, what their objection was. The analogy which had been evoked over and over again as between the Civil and Criminal Courts was no analogy. The Lord Chancellor himself could not deny that there was no analogy. In the one case they had a plaintiff and a defendant, but in the other case there was simply a prisoner on trial, with whom the sympathy always rested, because he was on 253 his trial, and every Judge on the Bench and every Chairman of Quarter Sessions told the jury, "You must not convict unless the case has been brought home beyond all reasonable doubt." When the jury were told that, that was one thing; but if they disagreed under this new provision it would be said, if there were a majority for conviction, "Oh, do not let us discuss it any more, because the Court of Appeal will set it right." Was not that a thing likely to mislead people? He thought it was, particularly if the jury had been kept very long in Court, under conditions which were not always conditions of extreme comfort. He could not help thinking that under such circumstances it was not in human nature not yield to such temptation.
§ * LORD ASHBOURNE
said that his noble and learned friend the Lord Chancellor had remarked that it might be that late in the day new evidence of a startling character might be found, and that it might be found after the certificate of the Judge had been given. It might also be found after the decision of the Court of Appeal refusing the appeal. But there was always the Home Office open. If anything new turned up which required investigation the Bill wisely provided that the jurisdiction of the Home Office remained unimpaired. The real point that struck him in the Amendment of his noble and learned friend Lord Halsbury was this: Why was it regarded as wise or common-sense to exclude from giving an early opinion upon a trial that had taken place the Judge who had tried it and who knew most about it? Why should not the Judge who had presided at the trial, who had listened to every atom of the evidence, who knew every point that had been stated, be encouraged without delay to give his opinion? He approved of the Bill in principle, though some of the details were in his opinion open to criticism. It was an important subject, and it was a very great experiment. He had no doubt whatever that later on the Bill would require amendment, but he desired the Bill now to pass in the best form possible. It was not in dispute that there should be a Court, of Criminal Appeal. The Amendment did not challenge that there was to be an appeal upon any legal point. Nor did the Amendment challenge that it was open to any person convicted to 254 appeal against his sentence. That was not in question. All that was in controversy was whether it was wise and reasonable to permit the judge who had presided at a criminal trial to say whether the case was a fit case for appeal. Surely if their Lordships would look at the common sense aspect of the question, and put aside everything relating to technicality and law, the Amendment was reasonable. Here was a great change in which 10,000 or 12,000 persons who had been convicted were suddenly told, "You may appeal not only upon law, not only upon your sentence, but upon the facts." The Bill itself showed that that was so wide as to be dangerous, and if 10,000 or 12,000 people, the great majority of whom it was to be assumed were clearly guilty upon a perfectly satisfactory trial, were told without qualification that the Appeal Court was open, it was obvious that unless leave to appeal was required it would flood the tribunal.
§ LORD ASHBOURNE
said he supposed the concession was given because it was thought to be just. The Bill was brought in this year, and they were now dealing I with the Bill in an amended form—he thought in an improved form in many particulars—but the changes introduced to meet the obvious suggestion that the Courts would be flooded and congested to an unworkable point, showed that the Courts could not be left open without some check, and that leave must be given by somebody. He submitted that that was common sense. There was further, the safeguard that if a man appealed wildly, recklessly and without grounds, he was admonished that his sentence might take an upward tendency instead of a downward tendency. That was a further check. Was it not a wise element of safeguard to introduce this also—not to forbid an appeal, but to say that the Judge who tried the case might give his opinion that it was a fit case to be brought into the Court of Appeal? He himself was unable to see any valid reason why the experience, the observation, and the ability of the Judge who tried the case might not be brought in to aid in this great question.
§ LORD ASHBOURNE
said he was aware that the Judge might be asked to give his report, and he hoped on the Report Stage to present an Amendment upon that, and to require that in every case the Judge be asked to give a report of his opinion. He was quite conscious of that clause, and he thought it was imperfect because it was incomplete. He was quite alive to the fact that the Court of Appeal might, and of course in nine cases out of ten would, ask for such a report. The point he was on now was why should not the Judge, when all the facts were present to his mind, when he knew everything connected with the case and every point, not give an opinion and say whether such and such a case was fit for an appeal? They must have some confidence in those who fulfilled the great position of Judges. He admitted that there was a distinction in the position of Judges presiding at assizes. The Judges who went on circuit filled the great position of King's Bench Judges and they also would supply those who would sit in the Court of Criminal Appeal. Was it not reasonable to permit those Judges of Criminal Appeal when they had presided at a trial to say, "This is a fit case to go before the Court of which I may myself be a member?" The Lord Chancellor had spoken about the distinction between civil and criminal courts. Of course there was a difference, but there was a considerable analogy, and they had a right to take the teachings of that analogy as far as it went. In a civil case they must all bear in mind that if the verdict of the jury was set aside the consequence generally would be a new trial. There were other Judges, of course, besides King's Bench Judges, and that was a matter that might suggest a certain measure of criticism. Chairmen of quarter sessions and recorders were often men of great ability, and often men with a considerable knowledge of law. They presided at many trials but of course they were not in the same position, or clothed with the same rank or authority, as King's Bench Judges; but he was not aware how any ready distinction could well be drawn between them, although, if any could be suggested, he would himself be quite willing to consider it. The Lord Chancellor had alluded to this Amendment as if it were some startling and novel reform suggested by his 256 noble and learned friend. This reform was not a suggestion of yesterday, or of to-day, or of the year before. It had been dealt with as far back as 1879 by the Royal Commission on the Criminal Law Code—a great Commission presided over by Lord Blackburn and other distinguished judges—recommended this very thing, that the leave of the Judge who presided at the trial should be obtained. There was a Select Committee of the House of Commons about twenty years ago recommending the same thing. It was not novel—it was what one might expect to find in a criminal code. He himself was not at all wedded to the particular words that found their place in the present Amendment, but he would himself desire—because he thought it would be in furtherance of justice and common sense—to utilise in every reasonable way the opinion and the knowledge of the Judge who presided at the trial.
There was a point which should never be lost sight of in reference to the advantage of this Bill, and the openness of the Court to appeals upon questions of fact. That was the Home Office. He did not know the figures, but he had seen in the papers in the last few days that there were some 2,000 petitions or more presented to the Home Office every year. There might be more—he did not know the exact figures. But power was given in this Bill to the Home Office to refer any case which came before it to the Court of Criminal Appeal. What a number of cases that at once gave, without the permission or leave of any Court or any Judge, that might find their way into the Court of Criminal Appeal. The criminal had only, instead of presenting his petition through the machinery of this Bill, to present a petition to the Home Office, and if the capable and trained advisers of the Home Secretary were of opinion I that there was a fair reasonable case made, they had perfect jurisdiction under this Bill to send the appeal on to the Court of Criminal Appeal without anyone's consent or anybody's leave. The question in his opinion was one of importance. One of the great difficulties in the Bill was as to its workability. He was quite in favour of the Bill giving the relief that it sought to give, and setting up a Court of Criminal Appeal but the great question was—would it be workable? 257 The danger of its being unworkable would be found very soon after it passed into law. If it was blocked by a great rush of appellants and petitioners, it would be imperilled. It would be a great difficulty for the Judges to succeed in coping with their work, and in laying down and methodising their rules. He was of opinion that the Amendment suggested by his noble and learned friend, or some such Amendment, would be desirable, because it would tend to make the Bill work more smoothly, and to make its provisions capable of application without so much friction and difficulty, and he thought it might tend to check the presentation of petitions in frivolous cases, where there was very little chance or prospect of anything but disappointment awaiting those who had unwarily presented very thoughtless petitions.
§ LORD COLLINS
could not help think-that the Lord Chancellor, to some extent, failed to appreciate the character of this Amendment. He thought that, rightly understood, it was calculated to give full effect to the avowed intention of the Lord Chancellor himself. It was agreed on all sides that this was a great new departure. It was the granting of an appeal on questions of fact in criminal cases. It was therefore clearly advisable, and the Lord Chancellor had admitted it, that that right ought to be fenced about with adequate safeguards. The Lord Chancellor had based his arguments largely upon the analogy of civil cases. But in civil cases they had to deal with points of law, and in a sense sometimes questions of fact became points of law. Where the element of misdirection entered, or even where the verdict was thought to be against the weight of evidence—both those heads were treated as headings of law, and the error was accordingly as to a point of law. But still the Courts in civil cases had felt that where the question, although nominally one of law—giving the right to ask for a new trial—was really a question of evidence, the first and most essential factor in dealing with that by the Court was to ascertain the opinion of the Judge who had tried the case. All those who had sat in Courts of review knew that where the question in review was, as it 258 sometimes was, though not so often as it was upon other grounds, as to whether or not the verdict was against the weight of evidence, the first thing that was insisted upon was the necessity of finding out what was the opinion of the Judge at the trial. He admitted that nowadays, when Courts were sitting in London to review cases while the Judges were on circuit, it was very often difficult or impossible to ascertain what the opinion of the Judge was, but still the theory was that it ought to be known, and immense weight was attached to it when it was known. But now they were not dealing with civil cases—questions of pounds, shillings and pence—they were dealing with a more important issue, the liberty, the character, or, it might be, even the life of the prisoner. Therefore, it seemed to him that as it was regarded as a useful provision in civil cases, it should be regarded as an indispensable provision in criminal cases, and that it should only be on the certificate of the Judge that appeal should be allowed. Here the ultimate question was, aye or no, did the jury go wrong in point of fact, did they disregard the evidence, and it was essential that the person best entitled to give an opinion upon the matter should be consulted. Therefore he thought they were giving full effect to the principles stated by the Lord Chancellor, and assimilating the Bill in that respect—as he desired it should be assimilated in other respects—to the civil procedure of the country. He made these observations with no desire to oppose any obstacle to the passing of the Bill, though in many respects he confessed he did not think it was quite so good as that introduced by the Lord Chancellor upon the recommendation of the Beck Committee. As, however, he had been Chairman of that Committee, it might be that he was somewhat prejudiced in favour of its recommendations.
§ LORD COLERIDGE
remarked that the last speaker had expressed a wish to assimilate the present Bill to the procedure in the civil Courts, and he had introduced the fact that the Courts of review in this country desired first of all to know, as a guide to their decision, what was the opinion of the Judge who had tried the case. The noble Earl had 259 forgotten the procedure in the present Bill. If he would read Clause 8 he would see that—The Judge or Chairman of any Court before whom a person is convicted shall, in the case of an appeal under this Act against the conviction or against the sentence, or in the case of an application for leave to appeal under this Act, furnish to the Registrar, in accordance with the Rules of Court, his notes of the trial; and in the case of an appeal against sentence only, and in any other case if he thinks it desirable in the interests of justice to do so, or if required by the Court of Criminal Appeal, shall also furnish to the Registrar in accordance with Rules of Court, a report giving his opinion upon the case, or upon any point arising in the case.Therefore it seemed to him that if the Bill remained as it was, unamended, it did in this matter assimilate the criminal procedure of the future to the present procedure in regard to civil cases. But the noble Lord wanted to differentiate the two proceedings, and to say that in criminal matters the report of the Judge should be a bar to the appeal. He would like to ask the noble Lord whether he would wish to introduce that principle into appeals in civil matters. The noble Lord had sat long in Court of civil appeal: would he like, looking back upon the past, to have said that in any case where the Judge had reported in favour of the jury, that should be a bar to the Court of Appeal entertaining the idea as to whether or not the verdict was against the weight of evidence? It seemed to him that the noble Lord in his argument, trenchant as it was, forgot the provisions of Clause 8. He would like to ask one question. The Court of Criminal Appeal under the Bill was enabled to hear fresh evidence, and it was given large powers to enable it to do so, because it was considered that only on the power of hearing and summoning fresh evidence could justice be done. What power, if this Amendment was carried, was given to the Judge of first instance either to hear fresh evidence, or to summon fresh evidence for the purpose of assisting his mind? None. Therefore his certificate must be based, and based solely, upon the evidence called at the trial before him, excluding the possibility of having recourse to any fresh evidence or having any powers placed in his hands to enable him to summon fresh evidence, or to see fresh documents for the purpose of enlightening or guiding his mind. It seemed to 260 him, therefore, that if this Amendment was carried, it would absolutely defeat the whole object of the Bill. The Bill was introduced last year and this year, owing to what? Owing to the existence of grave dissatisfaction at this very provision of the law which the noble Lord now wanted to introduce, namely, that the Judge of first instance should have to give leave before any appeal on a point of law could come before the Court of Criminal Appeal. That was the object of the movement outside in the public world; it was the object of that movement to get rid of that initial difficulty, and to enable persons to appeal without that bar being placed in their way.
§ LORD COLERIDGE
said that he was perfectly well aware of that, but if there was dissatisfaction in the public mind that there should be a bar in matters of law, would there not be a still greater dissatisfaction in the public mind if there were to be a bar also in matters of fact? It seemed to him that the proposed Amendment cut at the root of the Bill, and he trusted that before the Amendment was carried, some of the objections with regard to its working might be answered.
§ LORD HEMPHILL
said that it was impossible to hear the speeches that had been made by the noble Lords opposite without being struck with their great importance and ability. But at the same time those speeches appeared to him to be not ad idem to the Amendment now before their Lordships, because the Amendment required that the Judge at the trial should give a certificate of leave to appeal, superadded as he read the Amendment—
§ LORD HEMPHILL
said that as he read the Amendment, it was to been certificate that it was a fit case—that was to say, in substance it was liberty to appeal.
§ LORD HEMPHILL
said he had not the Amendment before him, but the sense of it was as he had stated. How would the fact of the Judge's giving a certificate that it was a fit case, answer the objection so forcibly put by the Lord Chief Justice? The Lord Chief Justice said that if the jury were indolent or doubting—or if some of them were indolent or doubting—they might be influenced to consent to a verdict, thinking that it would be ultimately in the power of the Court of Appeal to alter or reverse that verdict. He did not see how the fact of the Judge at the trial being required to give a certificate would in any way obviate that. As it was, leave to appeal must be given by the Court above. If there was no leave of appeal required by the Court above, or no application for leave to appeal contemplated, then indeed he thought that it would be very reasonable that there should be a certificate given by the Judge who had heard the case that it was a fit case. There was one argument more, which to his mind had not been anticipated, or at least put forward, by their Lordships. Would it not be placing a Judge in a very invidious and odious position to throw upon him in a capital case the odium of refusing a certificate that it was a fit case? He could not imagine a more painful position for a Judge to be placed in in a case of treason, in a case of capital felony, or in
§ a case involving some aggravated political issue, than that he should be called upon to withhold from the prisoner the opportunity of going to a higher Court. The noble Lord, Lord Coleridge, had pointed out that this certificate of the Judge at the trial precluded the possibility of any advantage arising from after-discovered evidence. It was impossible to answer that question. It was impossible for the Judge at the trial to be assured that something might not turn up which would alter the aspect of the case. He could very well understand noble Lords being against appeal in criminal cases at all. He thought that was a question which was open to a great deal of debate, but it seemed to be conceded by noble Lords opposite, and especially by Lord Ashbourne, that it was desirable that there should be an appeal in criminal as well as in civil cases on matters of law. On that postulate he said with the utmost respect that this Amendment was unnecessary, that it was more than unnecessary, it was mischievous, and that it would place the Judge who was called upon to exercise that discretion in a most odious and invidious position.
§ On Question whether the words "and upon the certificate of the Judge who tried him that it is a fit case for appeal" be there inserted, their Lordships divided:—Contents, 54; Not-Contents, 32.263
|Northumberland, D.||Plymouth, E.||Burton, L.|
|Richmond and Gordon, D.||Powis, E.||Cheylesmore, L.|
|Sutherland, D.||Vane, E. (M. Londonderry.)||Clinton, L.|
|Waldegrave, E.||Clonbrock, L.|
|Ailesbury, M.||Collins, L.|
|Lansdowne, M.||Churchill, V.||Dunboyne, L.|
|Salisbury, M.||Falkland, V.||Ellenborough, L.|
|Zetland, M.||Hill, V.||Fairlie, L. (E. Glasgow.)|
|Hood, V.||Kenyon, L.|
|Camperdown, E.||Hutchinson, V. (E. Donoughmore.)||Lawrence, L.|
|Cathcart, E. [Teller.]||Lovat, L.|
|Cawdor, E.||St. Aldwyn, V.||Ludlow, L. [Teller.]|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Muskerry, L.|
|Alverstone, L.||Newton, L.|
|Eldon, E.||Ashbourne, L.||Ranfurly, L. (E. Ranfurly.)|
|Haddington, E.||Atkinson, L.||Robertson, L.|
|Halsbury, E.||Avebury, L.||Saltoun, L. s|
|Hardwicke, E.||Balfour, L.||Sanderson, L.|
|Northesk, E.||Barrymore, L.||Waleran, L.|
|Onslow, E.||Braye, L.||Zouche of Haryngworth, L.|
|Loreburn, L. (L. Chancellor.)||Beauchamp, E.||Selby, V.|
|Crewe, E. (L. President.)||Portsmouth, E.||Allendale, L. Blyth, L.|
|Ripon, M. (L. Privy Seal.)||Althorp, V. (L. Chamberlain.)||Colebrooke, L.|
|Coleridge, L.||Fitzmaurice, L.||Pirrie, L.|
|Courtney of Penwith, L.||Glantawe, L.||Sandhurst, L.|
|Dawnay, L. (V. Downe.)||Granard, L. (E. Granard.) [Teller.]||Swaythling, L.|
|De Mauley, L.||Templemore, L.|
|Denman, L. [Teller.]||Hamilton of Dalzell, L.||Tweedmouth, L.|
|Elgin, L. (E. Elgin, and Kincardine.)||Haversham, L.||Weardale, L.|
|Hemphill, L.||Welby, L.|
|Eversley, L.||Nunburnholme, L.|
On Question, Motion agreed to.
§ THE EARL OF HALSBURY ,
in moving the omission of the proviso at the end of Clause 3 giving the right of appeal to a person convicted upon a charge involving sentence of death, said this Amendment was one which he thought would receive the assent of a great many persons who were favourable to the passing of the Bill. It was an Amendment which was proposed at the very last moment, not under the authority of the Government at all, giving an absolute right of appeal to every person capitally convicted. Let anyone imagine what the condition of things was. This was a thing about which there could be no doubt—that everybody, under these circumstances, would appeal. It was impossible to exaggerate the evil that would be done by that. The postponement of the execution of the sentence was one evil, no doubt, but he thought that a much greater one was the sort of feeling that must be induced by every person who was convicted, appealing and having the matter discussed over again whether or not the conviction was proper. He did not want to repeat what he had said before, but nobody who had witnessed a trial for murder in the English Courts would have failed to recognise the minute and severe care with which everything was done, and to say that there should be an appeal against sentence of death in every case was really to him intolerable. It was not in the purview of the Bill originally, and he did not think the Lord Chancellor could think it would aid the administration of justice to have such a right of appeal as that introduced.
In page 3, line 13, to leave out from the word 'law' to the end of the clause."—(The Earl of Halsbury.)
§ THE LORD CHANCELLOR
I will tell your Lordships exactly what my feeling is about this. What I am saying is not in the least, I assure the noble Earl, affected by anything except a cool view of the whole clause as it stands. I should 264 not have offered any strong resistance to the proposal to omit this clause, were it not for the consideration of the Amendment that has just been passed by the House. If that is persisted in by the House, what will be the result assuming the Bill passes? The result will be that you will have a man sentenced to death, and not allowed to go to the Court of Appeal by the interdict of the Judge who tried the case. Just think of the situation that is created by that. I think it would be a very unfortunate result, and for that reason alone I hope this Amendment will not be persisted in. Think of the situation created now. A man is tried and sentenced. Feelings are aroused—and wise men take account of feelings and try and persuade the world, and satisfy it, as I think we do, that justice is openly and fairly administered. A man is tried and sentenced. There is a good deal of doubt about his guilt or innocence. The Judge, very able, very honourable, and very upright, is supposed to have taken a "view," and he says, "No, this is a painful ordeal, but I do not see that it is a fit case"—and it would be stopped from going to the Appeal Court.
§ THE LORD CHANCELLOR
I know the noble Earl thinks it should not, but I think that that creates a situation which might lead to strain, and which would not be in the interests of justice. That is my only feeling in regard to this clause.
§ LORD ALVERSTONE
wished to point out, if the Lord Chancellor would not think him impertinent, that his Lordship had really overlooked the provisions of the Bill. Every case of murder must be tried at the assizes, and therefore, in the first place, was presided over by one of the King's Bench Judges Every case of murder went at once to the Home Secretary and was most carefully considered 265 by him, and he consulted the Judge, and by Clause (a) of Section 19 that case could be sent at once by the Home Secretary for Appeal. Therefore the suggestion of barring a man's appeal was not consistent with the Bill. But he would respectfully point out that there was something to be said on the other side. The Lord Chancellor had said that because the House had inserted the Amendment which had just been carried, this clause ought to stand. Could there be anything really worse than that there should be, as there would be in every murder case, for there was nothing to prevent it—an appeal lodged by someone, and got up, as the Lord Chancellor knew perfectly well was very often the case, by people who had not any knowledge of the case. He was satisfied that in no case where there was any doubt would any Judge of the High Court say that it was not a fit case for appeal; and even if he did, the Homo Secretary could send it there at once over his head. Therefore, he thought it was not quite giving fair weight to what the House had decided to say that that decision made any difference in the present case.
§ THE LORD CHANCELLOR
I am not in the least chiding or complaining. I am a Member of the House, though I very seldom vote with the majority—I hope I may some day. But I accept, as every man does, the decision of the House, and I have not made any complaint. I am only trying to point out the result. It is quite true that every Judge who tries a case will do his duty. I believe he will, whether there is an appeal or not, do his very, very best. But we all know that it is precisely because the very best Judges, with the very best intentions, take "views" that appeals are necessary.
§ THE LORD CHANCELLOR
They do take "views," and they might perfectly honourably make mistakes in murder cases as well as in other cases. But at all events there is a feeling that you cannot get to the Court of Appeal. I had the Home Secretary in my mind. What you can do is this. You can get to the Court of Appeal by leave of the Home Secretary, and the consequence is 266 you are just re-introducing the very system that is thought so unsatisfactory. I hope the noble Earl will think that I want to act loyally towards him, and I do not suppose it is any use our offering opposition to the noble Earl if he wishes to go to a division.
§ LORD ASHBOURNE
said he did not like to hear the Lord Chancellor speak as if the reason was all on his side of the House and the voting all on theirs. Let them take the particular Amendment, and consider it by itself, on its own merits and its own words. That was the way the clause stood until almost the last hour of going to Committee.
§ LORD ASHBOURNE
said he quite recognised that, but the Amendment introduced in another place was not defensible on its own merits. It weakened the sense of responsibility in the very case where it was most desirable that that it should be kept, so that the jury should feel that they were the arbiters of a man's life or death, and that upon them rested an immense responsibility which could not be devolved upon anybody else. The interest of the unfortunate criminal would be, of course, to rush into the Court of Appeal, and everyone would see that, that was a matter which was evidently open to the gravest objection, and the proposal could not stand serious criticism. If any Judge felt that in such an immense question as a man's life any kind of doubt was involved, he would at once say, "This is a fit case for appeal." If he did not do it, all the man had to do was to send in a memorial to the Home Office, and if the Home Office thought there was any kind of reason for an appeal, the matter would go to the Court of Criminal Appeal.
§ Clause 3, as amended, agreed to.
§ Clause 4:—
§ THE LORD CHANCELLOR
I think this clause wants alteration, and I imagine the noble Earl will agree with me that it does. I am very happy to agree with him in any way, and I hope 267 he will agree with me in this. I propose the Amendment that I have inserted in the Paper, so that the clause shall read in this way:—The Court of Criminal Appeal on any such appeal against conviction snail allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that upon any ground there was a miscarriage of justice.
In page 3, line 22, to leave out from the word 'on' to the word 'or' in line 24, and to insert the words 'the ground that it is unreasonable or cannot be supported, having regard to the evidence.
In line 27, to leave out the words 'or fact or of mixed law and fact,' and insert the words 'or that on any ground there was a miscarriage of justice.'"—(The Lord Chancellor.)
§ THE LORD CHANCELLOR
I do not know whether I am too particular', but I think it is best to put in the words "warranted in law by the verdict." It may be that it is implicitly contained in the clause, but I think it is best to insert those words.
In page 4, line 1, after the word 'sentence' to insert the words 'warranted in law by the verdict.'"—(The Lord Chancellor.)
§ Clause 4, as amended, agreed to.
§ Clause 5:—
§ THE LORD CHANCELLOR
This is very much the same, my Lords; it is really to carry out what is the purpose of the clause. I beg to move.
In page 4, line 9, after the word 'proper' to insert the words 'and as may be warranted in law by the verdict on the count or part of the indictment on which the Court consider that the appellant has been properly convicted.'"—(The Lord Chancellor.)
§ Further drafting Amendments agreed to.
§ Clause 5, as amended, agreed to.
§ Clause 6 agreed to.
§ Clause 7:—
§ THE LORD CHANCELLOR
I wish to put in a provision that the rules that are to be made shall enable any convicted person to present his case and argument in writing instead of by oral argument, and that any case or argument so presented shall be considered by the Court. That will make it unnecessary for an appellant who is a poor man either to attend and appeal himself or to send a solicitor; he may send a written application.
In page 5, line 28, after the word 'conviction' to insert the words 'such rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case or argument so presented shall be considered by the Court.'"—(The Lord Chancellor.)
§ Clause 7, as amended, agreed to.
§ Clause 8 agreed to.
§ Clause 9:—
§ THE LORD CHANCELLOR
The purpose of this Amendment is this; according to the Bill as it stands now evidence may be taken by the Court, and I think this is quite clear—that no sentence ought to be increased by reason of any new evidence that is not before the jury.
In page 7, line 14, to leave out subsection (J). In line 19, after the word 'Court' to insert the words 'provided that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial.'"—(The Lord Chancellor.)
§ Clause 9, as amended, agreed to.
§ Clause 10 agreed to.269
§ Clauses 11 to 14 agreed to.
§ Clause 15:—
§ LORD ALVERSTONE
said he did not wish to move a formal Amendment, but he hoped the Lord Chancellor would kindly consider this clause between then und the Report stage. He was quite satisfied that in its present form it would never work, and that it was only interposing the Registrar to put papers in order for the Court. But his real objection was that if the Bill was going to be worked—as he was sure it would be—loyally and effectually, it was the Court of Appeal which ought to decide whether a case was one which should be dealt with summarily. He did not like deputing or delegating to any official, however good he might be, the duty of picking out certain cases and saying that they were so unsubstantial that they ought to be referred to the Court at once for decision. He thought the Lord Chancellor would bear him out in saying that very often it was impossiable to tell, until a case had been partially inquired into, whether or not there was any substantial point in it, and he thought it would be putting the appellant at a disadvantage if the Registrar was to be allowed to pick out cases and say, "These appear to me to be frivolous, and they ought to be dealt with summarily." Let the Court do its work itself. It was important work, and ought to be gravely done, and feeling, as he did, that this was a new jurisdiction of a very important character, he objected on principle to anybody under the status of a Judge saying that cases were such that they should be dealt with in a summary way. He was sure it would increase the work, and he hoped the Lord Chancellor would be kind enough to consider, between then and the Report stage, whether that subsection ought to stand. If it did stand, it would require either very considerable additional enactments, or else to be supplemented by rules.
§ THE LORD CHANCELLOR
I will of course consider the matter, and I shall be very glad if my noble and learned friend will speak to me about it. Of course the purpose of the clause is, not to allow the registrar to decide anything, but if he sees anything which is really absurd—as for example a claim to appeal on the 270 ground of some great public event or anything of that sort—he may show it to the Court in order that the Court may deal with it. It is, after all, only a very small matter, but as I say, I am quite willing to consider it.
§ Clause 15 agreed to.
§ Clause 16:—
§ THE LORD CHANCELLOR
I have a small Amendment to move with reference to the matter of the shorthand notes; I want to put in the words "directed to be made by the registrar."
In page 10, line 29, to leave out the word 'required' and insert the words 'directed to be made by the registrar."—(The Lord Chancellor.)
§ Amendment agreed to.
§ Clause 16, as amended, agreed to.
§ Clause 17 agreed to.
§ Clause 18:—
§ THE LORD CHANCELLOR
I want to say a word if I may—but I am afraid the noble Earl (Lord Halsbury) is away—about this clause. I should like upon Report to make a little alteration in the clause. I think it is anomalous that the Court of Criminal Appeal should sit, and that their registrar should sit alongside of them as one of the Rule Committee, and that there should be different people, clerks of the peace and so forth. I think the form of words ought to be varied, so as to bring in "with the consent of the Lord Chancellor, with the advice and assistance of the Committee hereinafter mentioned."
§ LORD ASHBOURNE
A point that occurs to me is this. I am sure it is a mere slip, but this clause provides that the Rule Committee may act by any five of their number, and according to the way the clause is drafted it is quite possible to make up the five without putting on a single Judge.
§ Clause 18 agreed to.271
§ Remaining clauses agreed to.
§ Standing Committee negatived. The Report of Amendments to be received on Monday next, and Bill to be printed as amended. (No. 165.)