HL Deb 04 June 1930 vol 77 cc1375-81

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Defence of poor persons committed for trial.

(3) A defence certificate shall not be granted in respect of any person unless it appears to the certifying authority that his means are insufficient to enable him to obtain such aid, but where it so appears to any certifying authority, that authority—

  1. (a) shall grant a defence certificate in respect of, any person committed for trial upon a charge of murder; and
  2. (b) shall grant a defence certificate in respect of any person committed for trial upon any other charge if it appears to tile certifying authority, having regard to all the circumstances of the case (including the nature of such defence, if any, as may have been set up), that it is desirable in the interests of justice that he should have legal aid in the preparation and conduct of his defence at the trial.

VISCOUNT BRENTFORD moved, in subsection (3), to leave out "any" ["any certifying authority"] and to insert "the." The noble Viscount said: This is one of the few Amendments, which are practically verbal, which I wish to make to this Bill. In regard to this Amendment, if your Lordships will look at page 2 you will see that the certifying authorities are referred to in line 4, and the word "any" has crept in where it says, "but where it so appears to any certifying authority." If your Lordships look at the bottom of page 1 you will see that the certifying authority is therein defined as "such justices, Judge, or chairman" of the Court. It is quite obvious the word "any" in subsection (3) should be "the" to correspond to the definition previously given on page 1. I beg to move.

Amendment moved— Page 2, line 4, leave out ("any") and insert ("the").—(Viscount Brentford.)

THE LORD CHANCELLOR (LORD SANKEY)

I think my noble friend is right, and that this is a mistake that has occurred in drafting the Bill.

On Question, Amendment agreed to.

VISCOUNT BRENTFORD moved, in subsection (3), at the beginning of paragraph (b), to leave out "shall" and insert "may" The noble Viscount said: Your Lordships will see that in subsection (a) a certifying authority shall grant a certificate. In paragraph (b) the word "shall" has crept in again. Having regard to the fact that the whole paragraph is of a conditional character, allowing the certificate only under certain conditions, I think the word "may" would be correct. I have consulted the promoters of the Bill and the Home Office, and they agree with me on that point.

Amendment moved— Page 2, line 9, leave out ("shall") and insert ("may").—(Viscount Brentford.)

THE LORD CHANCELLOR

If I may say so, I agree with the noble Viscount. On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

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 or justices shall grant in respect of him 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 assigned to him for that purpose in the prescribed manner.

VISCOUNT BRENTFORD moved to leave out the first "shall" and insert "may." The noble Viscount said: This is the same point, and I do not think I need repeat what I have said.

Amendment moved— Page 2, line 25, leave out ("shall") and insert ("may").—(Viscount Brantford.)

On Question, Amendment agreed to.

LORD ATKIN moved, after "solicitor," to insert "and where he is charged with murder and the justices think fit Counsel." The noble and learned Lord said: This is a matter that I think may be of some importance. Your Lordships will have noticed that the real reform that this Bill makes—and a very substantial and valuable reform—is that for the first time it gives power to the justices to direct that a prisoner, when charged before them, shall have legal assistance. Before this, it was only when a man was committed for trial that the justices had power to give legal aid. This clause now gives a discretion to the justices to direct that there shall be legal aid when the man is charged before them. But in such cases under the Bill the justices only have discretion to assign a solicitor. Now in nine cases out of ten I have no doubt that would be ample, but there is a certain proportion of cases in which I think the person charged would not have effective legal aid unless it is in the discretion of the justices to assign him Counsel.

I may particularly refer to murder cases. There are some murder cases where everybody who has tried them will agree that it is essential the man who is going to fight a murder case at the trial should be in charge of the case at the earliest opportunity, in order that he should really see that the true defence is put before the justices at the earliest possible opportunity, and should also, if I may say so, see that the real defence is not obscured, and perhaps injured, by things being said and done before the justices which would impede the true defence being given at the trial. There are also some cases and some districts where, I am bound to say, it would be rather difficult to find a solicitor who had had any experience at all in murder cases. If I may take the district with which I am familiar. In my own county I do not think there has been a murder case for nearly fifty years, and no doubt that is true of other districts, where it would be very difficult to find a local solicitor who is familiar with the conduct of murder cases; whereas there is no difficulty about finding Counsel. Therefore, I propose, and I hope your Lordships will have no objection to it, that after the word "solicitor" in Clause 2, page 2, line 28, which reads "and thereupon he shall be entitled to such aid and to have a solicitor assigned to him for that purpose", there be inserted "and where he is charged with murder and the justices think fit Counsel." It is a simple reform, and I believe it would be a benefit in the administration of justice, and give an effective defence.

Amendment moved— Page 2, line 28, after ("solicitor") insert ("and where he is charged with murder and the justices think fit Counsel").—(Lord Atkin.)

THE LORD CHANCELLOR

I hope, your Lordships will agree with the Amendment. I think the promoters of the Bill are indebted to my noble and, learned friend for pointing out a real improvement to it. Your Lordships will observe that in the first subsection there is a differentiation in the case of murder where it says that the justices shall grant a certificate in respect of any person committed for trial on a charge of murder. Murder rather stands by itself, and the experience of all of us who have had to do with these cases is that in many cases before the justices it is most important that the prisoner should be adequately represented, especially in the rather dreadful cases of poisoning, post mortem examinations and so forth. It would add but very little expense, and I am sure that the promoters of the Bill are indebted to my noble and learned friend for the Amendment. I give it my hearty approval, and I hope your Lordships will consent to it.

On Question, Amendment agreed to.

On Question, Whether Clause 2, as amended, shall be agreed to?

LORD ATKIN

: May I say a word upon this? I do not propose any specific Amendment, but I want to call attention to one feature in the Bill which does not appear to me to be quite satisfactory. It divides legal aid into two departments. One is a legal aid given, and the act begins a little late in the proceedings. The first clause deals with committal which, chronologically, comes rather late. The committing justices give what is called a "defence certificate," and there is no controversy about that. In Clause 2 the examining justices—I am dealing again with the case of murder as an instance—give what is called a "legal aid certificate," but the legal aid certificate is only given for legal aid in the preparation of the defence before them. It therefore follows that Counsel and solicitor may be assigned to the defence before the justices, and then the justices have to go through the form of giving a different certificate with a different title and involving different persons at a later stage.

I should have thought it essential in a murder case that the person entrusted with the defence before the justices should have control of the whole matter from the beginning to the end. No doubt it is contemplated that the committing justices, when giving a legal defence certificate, will see that the same solicitor is assigned as before, but the Bill makes no provision in terms as to how Counsel and solicitors are to be assigned. That is to be done by rule. There is no guarantee, unless it is to be in the rule, that the solicitor appointed by the justices for legal aid will be appointed afterwards for legal defence. I do not quite understand why it is so and it may be that there is some adequate explanation. I have no Amendment to move, but if the noble Viscount would consider the matter and see if something could be done to make it quite clear I think it would be an improvement in the Bill.

VISCOUNT BRENTFORD

I must confess I had not had my attention drawn to the point raised by my noble and learned friend, but I will take it into consideration. Between now and the Report stage I will consult the Home Office, who were responsible in my time for the origination of the Bill, and also the Parliamentary draftsman. Perhaps the most convenient way will be for me to communicate with the noble and learned Lord, the Lord Chancellor, and my noble and learned friend and then perhaps we can get something agreed before the Report stage.

THE LORD CHANCELLOR

Perhaps if the noble Viscount does bring up an Amendment—of course we cannot draft it at the moment—he will kindly remember that under the new Act the trial might be on a different circuit. Therefore, some laxity must be left to the justices and they should not be compelled to appoint the same Counsel, because if the case goes to another circuit it might be necessary to appoint another barrister.

LORD DARLING

I do not think the noble and learned Lord, the Lord Chancellor, has altogether gathered the point taken by my noble and learned friend. What he said did not apply merely to Counsel who might be Counsel on another circuit, but it applied to the solicitor as well.

THE LORD CHANCELLOR

Certainly.

LORD DARLING

I can quite imagine that people trying to do the very best for the prisoner might feel inclined in some cases not to appoint the solicitor who had charge of the case from the first, but to appoint another, because it is perfectly conceivable that the man who came into the case at the first would not have done it particularly well. There are very injudicious people in the world, some of them solicitors and many of them Counsel. Therefore, if a person showed before a magistrate that he was very injudicious in the way he cross-examined witnesses and so on, in the interests of the prisoner it would be a very good thing that the solicitor appointed afterwards to see the case conducted at the Assizes and instruct Counsel should be another solicitor. I do not expect that we can do anything to ensure that everybody will be acquitted. Perhaps it would not be desirable that we should; but if we are going on that line I should move a little later—perhaps on Report—that the State should not only provide solicitor and Counsel but should provide an alibi for the defendant. That would do him, in most cases more good than anything.

THE LORD CHANCELLOR

I am much obliged to the noble and learned Lord. Perhaps he will be good enough to draw up a common form of alibi.

LORD DARLING

I will think about it.

Clause 2, as amended, agreed to.

Clause 3:

Amendments of 8 Edw. 7. c. 15.

(2) Subject to the regulations of the Secretary of State made under the Costs in Criminal Cases Act, 1908, the costs directed to be paid by such an order as aforesaid shall include—

and may include any other expenses properly incurred in carrying on the defence.

VISCOUNT BRENTFORD moved, in subsection (2) (a), to leave out "which shall be in the discretion of the Court." The noble Viscount said: The reason for this Amendment is rather curious. As far as I can make out from the report of the proceedings in another place, these words crept in by mistake. An hon. Member moved an Amendment and he said: "I only put the Amendment forward as a suggestion to the Solicitor-General, this being, I find, the only way in which I can raise the question of fees." He wanted to raise the question of fees and the promoters of the Bill, being anxious to get on with it, accepted the Amendment and stopped the debate. These words are quite out of place, because under the Act of 1908 costs are in the discretion of the Court, and the effect of these words, I am advised, would militate against the full discretion of the Court.

Amendment moved— Page 3, line 9, leave out from ("Counsel") to ("and") in line 10.—(Viscount Brentford.)

THE LORD CHANCELLOR

I hope your Lordships will follow the advice of the noble Viscount and omit the words and stop the debate.

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Remaining clauses agreed to.