HL Deb 29 May 1930 vol 77 cc1212-20

Order of the Day for the Second Reading read.


My Lords, I beg to move that this Bill be now read a second time. The principle it proposes is above Party politics and, I think, beyond the region of controversy. The object is to make better provision for the defence of poor prisoners in criminal cases. Doubtless most of your Lordships have either presided over or taken part in the trial of prisoners at Assizes or Quarter Sessions, and are thus aware how desirable and how necesary it is that a poor prisoner's case should be properly presented to the Court. I suppose that everyone of your Lordships when addressing this House for the first time suffered from nervousness, and felt great embarrassment in doing justice to the cause he had in hand. Here the only penalty which awaits you—an unpleasant one enough I admit, but the only penalty—is the rejection of your arguments. How much must that embarrassment be intensified when the result may mean the loss of your liberty and the ruin of your reputation. The accused finds himself in a public place, standing alone in the middle of a crowded court, the observed of all observers, unfamiliar with the practice and the procedure of a court of justice. In such surroundings how can he properly place his case before the Court? He cannot.

Often enough all he does is to hand in a long and irrelevant statement which he has prepared in the solitude of his cell. If it comes to cross-examining the prosecutor, the difficulty is in turning narrative into interrogation. He is asked if he desires to put a question to the witness. He starts by making a statement; is told that he can do that later, and generally the Judge puts questions for him. When the case for the Crown is closed he does not know how to submit that there is no case to go to the jury, and if a point of law arises he is quite unable to deal with it or to discuss it. He has not the section of the Act of Parliament under which he is charged, or any of the decided cases on it, and if he had he would not understand them. But I need not labour these facts. Your Lordships know them. They have been recognised by everybody, and we are all disposed to see that legal aid should be granted in order that justice may be done in such cases.

The development of the law in this respect forms an interesting chapter in the history of our legal jurisprudence. It culminated with the Poor Prisoners' Defence Act of 1903. The object of this Bill is to amend and extend the provisions of that Act. The Act enabled committing justices, or the Judge of a Court of Assize, or a Chairman of Quarter Sessions, to certify for legal aid to poor persons, but with certain restrictions. Soon after its introduction Lord Alverstone, who was then Lord Chief Justice, drew attention to the fact that there was a condition precedent to the grant of such aid, for it could only be granted where, having regard to the nature of the defence disclosed by the prisoner in his evidence or statement before the committing justice, it was in the interests of justice that legal aid should be given to him. Many people objected to this on principle. They urged that the first axiom of English Criminal Law is that the prosecution must prove their case, and that a prisoner ought not to be forced to disclose his defence as a condition of getting legal aid. Others, perhaps with more justice, pointed out that there may be cases, especially where a point of law is involved, where a prisoner could not at the moment state or formulate his defence. I hope that nothing I say will lend countenance to the idea that a prisoner ought to reserve his defence before the justices. That idea is quite exploded. There may be cases, especially those where an alibi is pleaded, where it is the worst possible thing for an accused person to do.

There was another matter in which it was thought that the Act of 1903 had a shortcoming. It only applied in cases of trial on indictment, and therefore legal aid could not be given in cases before justices. Public opinion, grounded on the experience of the working of the Act, came to the conclusion that both these matters required to be remedied, and in 1925 my predecessor, the late Viscount Cave, and my noble and learned friend Viscount Brentford, who was then Home Secretary, than whom, if he will allow me to say so, poor prisoners never had a better friend, appointed a Committee to consider and report upon the position. The Committee was a strong one. It was presided over by a member of your Lordships' House, Viscount Finlay, one of His Majesty's Judges of the King's Bench Division, and included a number of gentlemen well versed in the practice of the Criminal Law. They produced a unanimous Report, and this Bill is founded on their recommendations. They advised: (1), that the condition precedent to the right to legal aid should be abolished; and (2), that legal aid should be granted in suitable cases before the justices.

Sir John Withers, a distinguished solicitor and the Member for Cambridge University, took the matter up and drafted a Bill which, after being submitted to the Home Office, was approved by Sir William Joynson-Hicks, then Home Secretary, who took a great interest in it. He went through the Bill, amended it in certain particulars and gave it his full approbation, and undoubtedly the Bill would have been introduced a year ago had there been time to give to it. But fate and fortune smiled upon the proposals, and in November last Mr. Turton, the Member for the Thirsk Division of Yorkshire, having obtained a place in the ballot for Private Bills, asked Sir John Withers to allow him to introduce the Bill, to which Sir John readily assented. It was introduced into the House of Commons, was very strongly supported by Mr. Clynes, the present Home Secretary, every speaker was enthusiastic in its favour, and—no one speaking against it—it was carried without a Division. After a few verbal Amendments in Committee, it was again approved without a Division, and it now comes before your Lordships for your approval.

Clause 1 provides that a poor prisoner shall be entitled to a defence certificate in trials for indictable offences: (1), whenever the trial is upon a charge of murder; or (2), whenever, having regard to all the circumstances of the case, it is desirable in the interests of justice that he should have legal aid. Clause 2 enables a legal aid certificate to be given in cases before justices where, having regard to the gravity of the charge or to the exceptional nature of the case, it is desirable that such a certicate should be forthcoming. The remainder of the Bill is mere machinery. Clause 3 provides that the cost shall come out of the local funds, while Clause 4 enables rules to be made for carrying the Act into effect. Clause 5 is the repeal clause. The position therefore is this: that a Committee presided over by a High Court Judge has recommended these proposals; they have been approved by two Home Secretaries, my noble friend Lord Brentford and Mr. Clynes, and unanimously passed by the House of Commons. What need I say more? May I in my last words quit the argument of an advocate and give the testimony of a witness? It has fallen to my lot, as your Lordships are aware, to preside over Assizes in nearly every county in England and Wales. I must have tried hundreds of these cases. I should deprecate—indeed, I would go further and deny—any suggestion that the absence of the present proposals has led to any appreciable number of miscarriages of justice, but, having regard to my experience, I think it is incumbent upon me to say that in my view the Bill will make for the better and safer administration of the Criminal Law. I beg to move.

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


My Lords, I do not think that, after the clear speech of the noble and learned Lord upon the Woolsack, it is necessary for me to detain the House. I had intended to speak in support of the Bill, which, as the noble and learned Lord so kindly said, the Home Office produced at the time when I was there, but I can save your Lordships' time by accepting and adopting, if I may be permitted to say so, as my own every word that the noble and learned Lord has said, except only his kind reference to myself.


My Lords, it is with considerable fear that I address your Lordships for the first time, and I only find courage to do so because I happen to be a member of the Old Bailey Bar and also of the London Sessions. I should think I am probably the only member of your Lordships' House who, in the last few weeks, has defended persons under the provisions regarding poor persons' legal aid. I did that only a fortnight ago. It is quite clear to all members of the Criminal Bar that this Act is a necessary one, because what often happens is that a person appears at a police court on a certain charge and he and his friends and relations have been able to raise enough money, perhaps, to instruct solicitors and even to brief counsel. Acting under the instructions of his legal advisers he says: "I plead 'Not guilty,' I call no witnesses here and I reserve my defence." When the case comes for trial the money has run out, and the unfortunate person then finds that he is unable to be defended and is quite unable to defend himself. I do not pretend for one moment that innocent men are ever found guilty for that reason, because our Judges are always counsel for the defence if necessary, but I do say that very often the case is not put as well as it might be put, and that there are often extenuating circumstances which would mean that the punishment would be quite different.

But I do not speak for the poor prisoner; I speak for quite a different person, for the poor barrister—a poor but deserving class. Lately all legislation has told very heavily against that branch of the legal profession and barristers find themselves in a worse position year by year. I do not know what effect this Bill is going to have on them—whether it means that those barristers who have plenty of work to do are going to have more and those barristers who have no work to do are going to have less. It will obviously kill the dock brief. Prisoners will naturally not pay £1 3s. 6d. for a dock brief when they know they can get legal aid by asking for it. I presume that it will be for the barristers themselves to make arrangements by which this legal aid will be distributed in the same way that the prosecutions are distributed now. Of course it will become much more elaborate. I am convinced of that. It will end that every prisoner eventually will be granted legal aid, and it will almost come to a question of there being a Public Defender in the same position as the Public Prosecutor. Of course there are dangers that in time the jury will know that if a prisoner is not defended there must be a very good reason for it. Juries know now quite well that if a prisoner's character is not put in it is because it is a shockingly bad one. I do not think that that has any effect upon their verdict, but in time it will become known that if a prisoner is undefended it must be because the Chairman or the Judge thinks he has not got a chance.


My Lords, I have been asked to say a few words concerning this Bill, and it is not necessary to say much, because the noble and learned Lord on the Woolsack has so thoroughly explained what has been the working of the present system at Assizes and Quarter Sessions. As my noble and learned friend Lord Carnock has just said, it has long been the theory and the truth, with regard to people put upon their trial at Assizes, that the Judge is counsel for the prisoner. Therefore it is that it is almost impossible to point to any case where a prisoner has been wrongly convicted. The Judge, if there is a legal point in his favour, will see it and mention it to the Jury. It is his duty to do so and he does it. Of course the difficulty is that if the prisoner has not stated what his defence is, and does not say much before the Judge, it may well be that the Judge is quite unacquainted with the real facts, which might entitle the prisoner to acquittal. I say "entitle to acquittal" because he is so entitled, even although he may be guilty, unless he is proved to be guilty. It is not because the English law is altogether wrong that so many people are acquitted, although they are guilty enough: it is because it is not possible to prove it in fact or from a legal point of view and so they are entitled to be acquitted.

The noble and learned Lord on the Woolsack has said that this Bill has the approval of two Governments. Of course, on the face of it, it is one of those Bills which come under the general heading of Social Service. It deals with the industry carried on by a very large number of people, and I imagine that one object of this Bill in having people defended by learned Counsel and solicitors is this, that prisons are not now what they were when Miss Elizabeth Fry visited them on behalf of the public. They are places where one can enjoy many amenities and therefore this Bill properly recognises that no one should get into prison unless he has been genuinely seeking hard labour, and the Counsel appointed will certainly see to that. He will not get there unless he deserves it. It is a curious matter, seeing how humane the English law is, that for centuries it was possible for a prosecutor to get the aid of the State in preferring his charge against the accused, but it was impossible for the accused person to get any aid whatever, except that he trusted to the righteousness of the Judge, whose business it was to see that the case was proved.

In this House it may be interesting to notice that in cases of high treason for a very long time the accused was not entitled to have any legal aid whatever. High treason has always been recognised, particularly in the time of the Plantagenets and Tudors, as what is called in labour circles a gentleman's job, and yet I have no doubt that the fact that no lawyer was allowed to appear on behalf of a man accused of high treason must have led to this, that many of your Lordships sitting on these Benches would not be here if your ancestors had been properly defended. Therefore the paths of glory led to Tower Hill, and the honours passed to the cadet branch. That cannot occur if this Bill should receive, as I have no doubt it will receive, your Lordships' assent. It is odd, as I have said, that for long the State gave its aid to those who prosecuted and made no provision for those who were accused. We recognise on high authority that the rain falls upon the just and the unjust in equal proportions, and it is only right that if the State provides an umbrella for one it should provide an umbrella for everybody. Then no one will get too wet.

This Bill makes a difference in the procedure which I think is a very valuable one. It gives help to the accused at a very early stage of the proceedings against him. Before the magistrates the man accused cannot, if he has no money, get the witnesses—that is truthful witnesses. He can sometimes get witnesses who will not tell the truth and do not wish to do so, but that is a dangerous thing owing to the law of perjury. This Bill will allow him, owing to the action of the justices, to get the help of a solicitor and money to pay the witnesses, who would be properly summoned and brought into Court. In this way a good many cases will be disposed of before the magistrates and will never come to the Assizes or Quarter Sessions at all. It means, I think, that perhaps more people will be acquitted at the Assizes and Quarter Sessions than are now, but whether they are acquitted or not they will be acquitted or convicted after their cases have been better put before the Court. To a lawyer it is a great pleasure to know that not only will they be acquitted but acquitted, if I may say so, secundum artem. It may be that there is an evil in this Bill—there is in most things—but it is a negligible one. It is part of the duty of an advocate for the defence to see that facts particularly prejudicial to his client, the prisoner, do not reach the Court. If they do it makes a very great difference in the sentence. I dare say that when this Bill is passed, and everybody is defended by a barrister, a good many facts which a prisoner now blurts out, or allows to come out for want of taking proper objection, will be excluded from the knowledge of the Judge. It might be said that that would be a great pity, because it is in the public interest that everything should come out, and it may be that this Bill will work some little injustice in this way. If anyone doubts whether the conduct of Counsel does result in the case of a person not being presented in its full blackness before the Court, I would, with your Lordships' permission, tell a story which was told me of his own practice by Sir Frank Lockwood—known, I dare say, to many of your Lordships, and beloved by everybody who knew him.

He told me that he was retained to defend a prisoner on a very serious charge, and the prosecution had told Sir Frank Lockwood that they would be quite content to take a plea of "Guilty" upon a minor charge, which would involve a much lighter sentence. Sir Frank Lockwood, in consultation with the prisoner, told him this, and the prisoner said he was not going to plead "Guilty" to any charge whatever. Sir Frank Lockwood said: "Well, I have told you my opinion about it, and I can only say this, that it will be very much worse for you if you plead 'Not guilty' and the facts come out." The prisoner said to him (Sir Frank was in his robes, wig and gown): "Facts come out, did you say? Why, you fuzzy headed fool, what do I employ you for except to keep them back?" And that is one of the duties of a really successful defender of people accused. It may be that this Bill will give them an undue advantage, but on the whole I think that the injustice will be so small that it would be well if this Bill should pass into law.

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