HL Deb 16 August 1907 vol 180 cc1771-7

Read 3a(according to Order).

*LORD ASHBOURNE moved the substitution of the word "or" for "and" in Clause 3, the effect being to make the certificate of the Judge an alternative to giving leave to apply to the Court of Appeal. He explained that when the Bill came up from the House of Commons it contained the qualification that the liberty to appeal on questions of fact should be with the permission of the Court of Criminal Appeal. His noble and learned friend Lord Halsbury was of opinion that it should be upon the certificate also of the Judge who tried the case, and an Amendment to that effect was introduced and was now in the Bill. This Amendment had received criticism, and it had been suggested that, although it might work extremely well in a great number of cases, it might happen in some cases that the Judge would be unwilling to give a certificate which, in the opinion of other Judges, should be given. His noble and learned friend had considered those criticisms, and thought they could be met by giving an appeal from the refusal of the Judge to give a certificate. No doubt that would meet the difficulty, and there were precedents for it in the civil procedure of the country; but, as the result of much consideration, he (Lord Ashbourne) had come to the conclusion—in which he thought Lord Halsbury would concur—that the Amendment he had placed upon the Paper to-day would meet the case in a simpler way. If it were provided that on the refusal of a Judge to give a certificate there should be an appeal from that refusal to the Court of Appeal before the matter was heard, it might lead to delay and complication; and in all the circumstances it would be shorter to allow the certificate of the Judge to be an alternative to the leave of the Court of Appeal. Usually it might be expected that the Judge in proper cases would give a certificate, and in such cases pro tanto the work of the Court of Appeal would be lessened. If the Judge did not see his way to giving a certificate, knowledge of that fact would as an expression of opinion be of advantage to the Court of Appeal. The matter was further assisted by the Amendment which Lord Collins had on the Paper to strengthen Clause 8, requiring that in every case the opinion of the Judge should be available for the Court of Criminal Appeal. He had always felt the importance of utilising in the most convenient way the opinion of the Judge who had recently presided at the trial and knew all the points, and who could say at once whether in his opinion it was a fit case for appeal.

Amendment moved— In page 3, line 10, after the word 'appeal' to leave out the word 'and' and to insert the word 'or.'"—(Lord, Ashbourne.)

THE LORD CHANCELLOR (Lord LOREBURN)

My Lords, I am extermely glad that the noble and learned Lord has put down this Amendment. I am satisfied that your Lordships did not quite appreciate the full bearing of the Amendment which you inserted in Committee, and did not realise that by it it would be in the power of any Judge, or chairman or vice-chairman of quarter sessions, to prohibit the appeal which it was the object of the Bill to allow. Your Amendment has not, I believe, been received with favour in any quarter outside this House, and I have received a suggestion from a very eminent Judge that it should be amended in the way now proposed by my noble and learned friend. What my noble and learned friend is now moving is that there may be an appeal on questions of fact either with the leave of the Court of Criminal Appeal or upon the certificate of the Judge who tried the convicted person that it is a fit case for appeal. I think that in moving this Amendment my noble and learned friend has taken a very wise course. For my part, I think the Amendment is a quite satisfactory and reasonable proposal, and I assent to it.

LORD JAMESOF HEREFORD

said that, as one who had for nearly forty years, in office and out of office, endeavoured to secure a Court of Criminal Appeal, he entirely agreed with the Lord Chancellor. The Amendment which their Lordships inserted in Committee would, had it been allowed to remain, have completely destroyed the Bill. If was with the greatest relief that he saw on the Paper the Amendment which his noble and learned friend had now moved, and he was sure that everyone in favour of this most necessary reform would thank Lord Ashbourne and Lord Collins for the solution they had found for the grave position in which the matter had been left. This Bill was a great experiment, and he confessed that he bad always felt some anxiety lest the setting up of a Court of Criminal Appeal should prove too great for their present judicial strength. But if the Bill passed into law the Government must take the responsibility of meeting any demand for addition to the judiciary occasioned by it, and he was sure the public would not object to such an increase if it should prove necessary. But beyond numerical strength, much depended on the manner in which the Bill was administered. They knew that some of the Judges had expressed a strong opinion against the Bill. He felt confident that whatever might be the opinion of the Judges in respect to this legislation, they would loyally administer the Act. The Lord Chancellor had stated, at a previous stage of the Bill, that Judges were not always law reformers. He was afraid the past had proved the truth of this, and in the future their objection to this Bill would probably be quoted as a further instance of their opposition to useful reform. But he was sure the character of the Judicial Bench would be maintained by their loyal administration of the law.

* THE MARQUESS OF LANSDOWNE

My Lords, my noble and learned friend Lord Halsbury is not able to be here this evening, but I am assured that he is quite prepared to accept an Amendment, if not in these actual words, at any rate one the effect of which would be substantially the same. I know that Lord Halsbury was most anxious to arrive at a settlement which would be acceptable to the noble and learned Lord on the Woolsack, and I should be sorry if it were thought that any decision on this question to which he was likely to take exception were come to in his absence.

THE LORD CHANCELLOR

I may say that I have to thank Lord Halsbury for his generous and considerate treatment of this Bill.

On Question., Amendment agreed to.

LORD COLLINS moved to omit from Clause 8 (Judge's notes and Report to be furnished on appeal) the words— In all cases of an appeal against sentence only, und 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, He explained that the object of this Amendment was to make it certain that in all cases the Court of Appeal should be furnished with the opinion of the Judge or chairman of the Court before whom the applicant was convicted. The Amendment inserted the other day on the Motion of Lord Halsbury had been construed as having the effect of leaving it to the absolute discretion of the Judge who tried the case whether there should or should not be an appeal. He believed that was not the intention of the mover; it was certainly not the intention of those who supported the Amendment. The object of Lord Halsbury's Amendment was to assimilate as far as possible the criminal to the civil procedure, and it was a well-known practice in civil actions that the right of appeal in certain cases depended upon leave being given by the Court appealed from; but it had never been held that the refusal of the Court whose decision was being reviewed to give leave to appeal had ever stopped an appeal, the reason being that the Court of Appeal had jurisdiction to review the exercise of that discretion on the part of the Court below. Although the Court of Criminal Appeal did not start in life fully equipped with inherent jurisdiction such as existed in the present civil Court of Appeal, still he would have thought it quite an arguable question whether the Court of Criminal Appeal would not have had discretion to review the decision of a Judge in ruling that a case was not a fit one for appeal. But in order to remove any doubt on the matter he had placed an Amendment on the Paper which had for its object to secure that in every case, as a matter of necessity, the opinion of the Judge who tried the case should be before the Court of Appeal when they came to review the decision. If his Amendment were agreed to. Clause 8 would read— 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 Rules of Court, his notes of the trial; and 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. This Amendment was strictly ancillary to the Amendment already agreed to on the Motion of Lord Ashbourne, and he hoped the Lord Chancellor would accept it.

Amendment moved— In page 6, line 18, to leave out from the first 'and' to the word 'shall' in line 20."—(Lord Collins.)

THE LORD CHANCELLOR

My Lords, there can be no objection to this Amendment, the purpose of which is to require that in all cases where there is an application for appeal the Judge who tried the case should furnish the Court of Appeal with a report on the case. I think it is very satisfactory that it should be so, and I make no objection to the Amendment.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

The object of the next Amendment is to I require that the charges for the furnishing I of a transcript of the shorthand notes of the trial to any party interested shall be upon the payment of charges to be fixed by the Treasury, instead of being prescribed by rule.

Amendment moved— In page 10, line 36, to leave out the words 'the prescribed' and to insert the word 'such,' 'and after the word' charges 'to insert the words' as the Treasury may fix.'"—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

The next Amendment is simply to enable the Secretary of State, if he thinks fit in any case, to direct that a transcript of the shorthand notes should be made and furnished to him for his use. I cannot imagine that there will be any objection to this.

Amendment moved— In page 10, line 36, after the word 'charges to insert the following new subsection:—'(2) The Secretary of State may also if he thinks fit in any case, direct a transcript of the shorthand notes to be made and furnished to him for his use.'"—(The Lord Chancellor.) On Question, Amendment agreed to.

Consequential Amendment agreed to.

THE LORD CHANCELLOR

The next Amendment is simply one of business. Rules are made as they are required by a committee of Judges, but I desire to provide that if they affect the governor or any other officer of a prison, or any officer having the custody of the appellant, they shall be subject to the consent also of the Secretary of State.

Amendment moved— In page 11, line 19, after the word 'Chancellor' to insert the words 'and so far as the rules affect the governor or any other officer of a prison, or any officer having the custody of an appellant, subject to the approval also of the Secretary of State.'"—(The Lord Chancellor.) On Question, Amendment agreed to.

Drafting Amendment agreed to.

THE LORD CHANCELLOR

I have now come to the last of my Amendments. Its object is to provide that a recommendation made by the Court of Criminal Appeal as to the sending of an alien out of the country shall have the same effect as a recommendation of the convicting Court.

Amendment moved— In page 13, line 29, after the word 'recommendation' to insert the words 'and a recommendation so made by the Court of Criminal Appeal shall have the same effect for the purposes of Section 3 of the Aliens Act, 1905, as the certificate and recommendation of the convicting Court.'"—(The Lord Chancellor.)

On Question, Amendment agreed to.

Bill passed, and returned to the Commons.