§ Amendments reported (according to Order).
§ Clause 2:
§ Legal aid before courts of summary jurisdiction.
§ 2. If it appears to a court of summary jurisdiction or examining justices that the means of any person charged before them with any offence are insufficient to enable him to obtain legal aid and that by reason of the gravity of the charge or of exceptional circumstances it is desirable in the interests of justice that he should have free legal aid in the preparation and conduct of his defence before them, the court of justices may grant in respect of him a certificate (in this Act referred to as a "legal 247 aid certificate"), and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the justices think fit) counsel assigned to him for that purpose in the prescribed manner.
LORD DARLING moved to leave out "and (where he is charged with murder and the justices think fit) counsel." The noble and learned Lord said: My Lords, I have set down an Amendment to this clause, and I think I should explain to your Lordships at once that I did not devise it, but it was thought in the Home Office, which has charge of these matters, that difficulty would arise if this clause were passed in the terms in which it now appears. Therefore it was suggested that this Amendment should be moved fur your Lordships to consider it, and it is simply for this reason that I suggest that these words should be left out. The clause as printed in the Bill provides that the court or justices may grant in respect of the person accused
a certificate (in this Act referred to as a legal aid certificate') and thereupon he shall be entitled to such aid and to have a solicitor.
There is no objection anywhere to that, but the clause goes on to say, "and (where he is charged with murder and the justices think fit) counsel assigned to him" for his defence.
The Amendment proposes to leave out the words "and (where he is charged with murder and the justices think fit) counsel." As I understand it, the objection taken is this, that murders are not confined to those towns in which there is a sufficient local Bar practising and attending at Assizes, accustomed to deal with murder cases. You might have a murder committed in a very obscure little place, where there is no counsel or, if there is counsel, no counsel with the kind of experience which would be of the least use to any prisoner, if that man were to defend him before a Judge of Assize. It is thought that, this being so, the magistrates might, if they were to appoint counsel, not have that large choice which they would have in large towns like London, Manchester, Liverpool or Birmingham. They might take, if there was a barrister at all, simply some local barrister, utterly unaccustomed to deal with murder cases, and perhaps a man who had never had such a case before, and he would naturally be seized of the case when it came to the Assizes.
That is the opinion of those entitled to be heard in this matter, and I simply undertook to bring the point to your Lordships' notice. I think I ought candidly to say that I think there is not much danger in it, because the words are that the justices
may grant in respect of him a certificate … and thereupon he shall be entitled to such aid and to have a solicitor.
All that would stand, and then come the words objected to, which are "and (where he is charged with murder and the justices think fit) counsel assigned to him." It is only where the justices think fit.
§ I think it was Lord Atkin who put in these words when the Bill was before your Lordships in Committee, and I should think it very probable that he may say that the justices will be entitled not to use this power improperly and only to use it if they think fit. It may well be that, if they do not know of any counsel in the neighbourhood whom they can assign, they would not assign any counsel but leave the case to go to the Assizes, or for that to happen which always happens in respect of such cases—that some people interested in a spectacle being provided for the public will provide for the best known counsel at the Bar to be secured. I have said all that I have to say in regard to the Amendment, and no doubt my noble and learned friend will state his attitude towards it.
Page 2, line 28, leave out from ("solicitor") to the end of line 29.—(Lord Darling.)
§ LORD ATKIN
My Lords, I venture to think there is no real reason for altering the decision that your Lordships arrived at some four weeks ago, unanimously, and if I were not speaking of this House I should say agreed to with enthusiasm. On that occasion I ventured to point out that there were a few cases in which a poor prisoner might not have the full effect of the provisions for legal aid—not all cases but some cases—and therefore I framed a very carefully guarded Amendment, which was confined to murder cases, and which even in murder cases gave the justices a discretion as to whether they should assign counsel or not. That discretion seems to me to remove altogether the difficulty, even if it existed, because if there were no counsel likely to be able to take the ease, the justices need not exercise 249 their discretion to assign counsel, but may leave it to the solicitor, and it seems to me to be a very poor reason for preventing poor persons from having adequate defence where adequate counsel can be provided, to say that in a few cases counsel might not be had.
The objection seems to me to be quite ill-conceived. I do not believe there is a place in England where it would not be possible to obtain adequate and good counsel. There is no profession that has ever given more willingly gratuitous service for the aid and relief of the poor than the profession of the Bar, both in England and in 'Scotland. It is a tradition that they should do it, and I am certain that counsel will be prepared to make sacrifice, if sacrifice be necessary, for the purpose of conducting the defence of prisoners. I do not believe there is a place in England where a poor person would not be able to get the services of entirely adequate counsel, and I venture to suggest that on principle it ought to take a strong case to induce this House to reverse in a few weeks time a decision arrived at unanimously in Committee. I venture to ask your Lordships to adhere to the Bill as it now stands.
§ VISCOUNT BRENTFORD
My Lords, as I was somewhat responsible for the Bill, may I say one word upon this matter? I think my noble and learned friend Lord Darling has moved the Amendment in such a manner as, to show that he is not very keen on its being carried. I think there is one point that has not been made by the noble and learned Lords who have spoken, which inclines me to think we can safely leave the provision in the Bill—namely, that two certificates may be given, a legal aid certificate under this clause, which is given for the purpose of appearing before the local magistrates, and a second certificate when the case goes before Quarter Sessions or the Assizes; and in that case, if I may respectfully say so to Lord Darling—it is the one point of substance he raised—the objection in regard to the capacity or otherwise of the counsel who might be assigned in some more remote country district would be got over.
I know that the view of the Home Office was in the first instance in favour of the Amendment moved by the noble and learned Lord, Lord Darling, but I think on the whole your Lordship's would 250 not do any harm in at all events letting the power remain to the magistrates to assign counsel if they see fit. It is purely permissive. I think the probability, even the certainty, is that no bench of magistrates would attempt to assign counsel if it was not in so remote a part of the country that no counsel lived there or—if I may be allowed to say so in these days of advertisement—that no counsel would be willing to go down in order to take up a murder case. My own experience of the legal profession is that in a case of this kind there would be no difficulty in getting a good counsel to go and take up the case.
§ THE LORD CHANCELLOR (LORD SANKEY)
My Lords, I think I ought to say that when my noble and learned friend Lord Atkin moved this Amendment in Committee to insert the words welcomed it as I thought the words were very useful. I am afraid I am still unrepentant and prefer those words. I think they ought to remain, and I hope your Lordship's will allow them to remain and reject the rather half-hearted Amendment of the noble and learned Lord, Lord Darling. After all, the power given to the justices is only permissive.
§ LORD DARLING
My Lords, as the noble and learned Lord knows quite well this was not my invention at all. I promised to bring it before your Lordships. It was really a brief which I accepted. Like many others I accepted the brief in a bad form and I am quite satisfied at its having led to this debate. I would like to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6:
§ Short title, commencement, interpretation, extent and repeal.
§ THE LORD CHANCELLOR moved to leave out "September, nineteen hundred and thirty" and to insert "January, nineteen hendred and thirty-one." The noble and learned Lord said: My Lords, this Amendment I also move with reluctance. It is an Amendment to postpone the date of corning into operation of the Bill. The difficulty is that there is not time to get the machinery into 251 operation by September 1 this year. A great deal has to be done in the way of consultation, and regulations have to be made under Clause 3 by the Secretary of State in connection with the new arrangements. In addition to that, rules and regulations have to be drafted by Parliamentary Counsel and to be put not only before the Home Office but before the solicitors' profession and the profession of the Bar, and there really is not time to enable that to be done. I am afraid it really is a necessity to ask your Lordships to alter the date of the coming into force of the Bill from September 1, 1930, to January 1, 1931. I need hardly say that with regard to this I consulted Sir John Withers.
Page 4, line 3, leave out ("September, nineteen hundred and thirty") and insert ("January, nineteen hundred and thirty-one").—(The Lord Chancellor.)
§ VISCOUNT BRENTFORD
My Lords, whereas on the last Amendment the noble and learned Lord on the Woolsack was unrepentant, I hope he is repentant in regard to this Amendment. As long as he admits his repentance I will not trouble your Lordships any further. I am very sorry it has been necessary to make this Amendment. The effect of it is, of course, that any poor prisoner who is prosecuted during the period between September 1 next and January 1, 1931, will not get the benefit of this Bill.
§ On Question, Amendment agreed to.