SUMMARY JURISDICTION (APPEALS) BILL. (Hansard, 25 May 1933)

§ THE LORD CHANCELLOR (VISCOUNT SANKEY)

My Lords, I beg to move that this Bill be now read a second time. Its object is to remove a difficulty in the way of a poor man who desires to appeal against a conviction by a court of summary jurisdiction. A stranger to our jurisprudence would find an easy target for his criticism in the case of the multiplicity of opportunities for appealing in civil matters. It is just the opposite in criminal matters, which is the more remarkable when we consider that in such cases a man's liberty and reputation are at stake. Even at the beginning of this century appeals from convictions at Assizes or Quarter Sessions were almost impossible unless under a case stated by a Judge for the consideration of the Crown cases reserved. It was not till 1907 that a Court of Criminal Appeal was established. That Court has now been sitting for 25 years and no one doubts of its success and usefulness. Contrary to expectation it has not led to a large number of appeals. In cases of appeals from Justices of the Peace the law lags behind. It is true that an appeal was given by the Summary Jurisdiction Act, 1879, but it was hedged about by conditions which made it almost impossible for a poor man to take advantage of it.

The existing law relating to appeals from decisions of courts of summary 1035 jurisdiction is contained in Section 31 of the Summary Jurisdiction Act, 1879. Subsection (3) of that section provides that, before a person can appeal from a summary court to Quarter Sessions, he must enter into a recognisance, with or without sureties, conditioned to appear at the Sessions, to prosecute his appeal, to abide by the judgment of the Court and to pay such costs as may be awarded. Instead of entering into a recognisance it is open to him, with the concurrence of the Justices, to deposit a sum of money or to give other security. It is frequently alleged, and I think with truth, that, before any person can appeal under this system to Quarter Sessions, he has either to deposit £50 or get someone to stand surety on his behalf for that amount: and these statutory requirements have been widely criticised on the ground that they prevent poor defendants from exercising their statutory right of appeal.

Yet an appeal is undoubtedly needed. In 1930 there were in such courts 520,000 convictions and 314 appeals. Of these appeals the conviction was quashed in 102 cases, modified in 81 and dismissed in 131. It must not be supposed that this is in any way a serious criticism on the work done by Justices of the Peace. Justices from time to time make mistakes; so do other people. Even Homer nods. On the whole the work done by the Justices of the Peace is beyond reproach. No doubt, there are eccentric decisions from time to time, but every eccentricity is well advertised, and it should not be forgotten that for one such eccentric decision there are all over the country hundreds, indeed thousands of decisions which meet with very general approval. It has, however, long been felt that the appeal section of the Summary Jurisdiction Act, 1879, should be eased so as to prevent its penal section hindering justice being done in necessary cases.

The history of this Bill I may state shortly. A Departmental Committee was set up in July, 1932, with the following terms of reference: To consider the law and practice relating to appeals from decisions of the courts of summary jurisdiction and to recommend such amendments, if any, as may be thought desirable. 1036 This Committee was still pursuing its inquiries when, at the beginning of the present Session, Mr. Turton, the honourable Member for the Thirsk and Malton division of the North Riding of Yorkshire, was successful in obtaining a place in the ballot for Private Members' Bills and he introduced a Bill dealing with this question. When this Bill came on for Second Heading in the House of Commons on March 3 last, the Government expressed full sympathy with the objects of the promoter and stated that they would not be in a position to define their attitude towards the actual proposals of the Bill until they had received the Report of the Departmental Committee. That Report was expected very shortly; and meanwhile, if the Bill obtained a Second Reading, the time of the House might be saved, since, if after considering the Committee's Report the Government decided that this reform might proceed, it might be possible to make during the Committee stage, whatever Amendments might be found necessary to bring this Bill into line with the recommendations of the Departmental Committee. The Bill obtained a Second Reading by acclamation in another place.

In April of this year the Departmental Committee presented their Report. The Committee found that the criticism frequently levelled against the existing system—that it seriously hampers a poor defendant from availing himself of his statutory right of appeal—is "not without good foundation"; and although they remained not in favour of the total abolition of the recognisance, they recommended that it should be retained only for the purpose of securing the appearance of the appellant at Quarter Sessions and the due prosecution of the appeal. The direct recommendations of the Committee were found to be capable of being grafted into the framework afforded by the Bill; and during the Committee stage the Bill was so amended as to give effect to the recommendations made by the Departmental Committee. In the process the main objects of the Bill remained unchanged, but in detail was transformed and greatly enlarged. In the form in which it was introduced it had been merely a skeleton Bill; as it emerged from Committee it was a substantial measure giving full effect to the 1037 recommendations of the Departmental Committee. No Amendments were made on the Report stage and the Bill obtained a Third Reading without a Division on May 12.

The objects of the Bill are carried out in its various clauses. I need not trouble your Lordships with Clause 1. It is simply a small technical matter enlarging the time for appeal and making the necessary consequential amendments if the rest of the Bill goes through. With regard to the remaining clauses, I would like to say that they are rather longer than would appear to be necessary, but the object of this was to avoid legislation by reference. The important paragraph in Clause 1 is subsection (3) which provides that: The appellant shall, after giving notice of appeal and within 21 days after the day on which the decision of the court was given, enter into a recognisance with or without sureties as that court…may direct, and in such reasonable sum as, having regard to the purposes of the recognisance and to his means, they think necessary to fix, conditioned to prosecute his appeal with diligence. Your Lordships will observe that there is no recognisance there as to costs. Paragraph (4) applies provisions.

Clause 2 of the Bill deals with the provisions as to legal aid. It really puts into this Bill, instead of legislating by terms of reference, the Poor Prisoners' Defence Act, 1930, and provides that where a person who has been convicted of an offence by a court of summary jurisdiction desires to appeal to Quarter Sessions but has not sufficient means to enable him to obtain legal aid for the purpose, then a certificate may be given. The same applies to the other party to the appeal. If your Lordships will be good enough to look at the word "convicted" in the phrase "where a person has been convicted of an offence," the reason is that it was not thought right to include bastardy, affiliation cases, in this Bill because they are civil matters and not in the nature of cases with which the Bill is intended to deal. Clause 3 deals with rather a technical matter as to the way in which an appeal shall be entered. Clause 4 says what is to follow if an appeal is abandoned. Clause 5 is the provision as to costs. Clause 6 contains provisions as to what is to be done with the forfeited cognisances.

1038 Clause 7 is not without interest because it relates to the procedure on appeals: The powers and duties of a Court of Quarter Sessions with respect to appeals to which the Act applies shall, in the case of Quarter Sessions for a county, be delegated to, and exercised and performed by, a Committee of the Justices of the county to be appointed by Quarter Sessions and to be known as the Appeal Committee. The remaining paragraphs of the clause simply provide the machinery for carrying out the purpose. Clause 8 refers to the application of the Act and construction of references. Clause 9 provides that the provisions of the Bill shall not extend to Scotland or Northern Ireland.

The only other matter to which it is necessary for me to draw your Lordships' attention is to consider for a moment the question of what the possible cost of the Bill may be. The attitude of the Government towards the Bill was explained in the course of the debate on the Third Reading. It was pointed out that during the Second Reading debate the Government had referred to the question of expense, and had expressed the hope that some estimate might be given by the Departmental Committee. The Committee, however, had been unable to form any estimate of the additional cost which would be involved by the adoption of the new procedure recommended, for they had not found it possible to calculate how many persons would appeal under this simplified procedure. I can only give you one figure. From certain inquiries which have been made it appears that the taxed cost of the respondents to an appeal on an average amount at present to about £35 for each appeal. While it is not possible to forecast the expenditure, the experience of what happened after the setting up of the Court of Criminal Appeal shows that it is not likely that there will be a large number of appeals, nor must it be forgotten that an appeal to Quarter Sessions is in the nature of a re-hearing, upon which an appellant, if unsuccessful, may have to pay costs.

In view of the impossibility of framing any estimate of the additional cost which may be involved, the Government cannot regard the new system which would be introduced by this Bill as other than experimental. Until experience has shown what proportions the addi- 1039 tional cost is likely to assume, the new system must be regarded as a trial rather than as a permanent part of the machinery of criminal administration. If it should be found that a large number of frivolous appeals are being made, or if the cost for some other reason should prove to be excessive, the Government may find it necessary to introduce and pass into law further amending legislation for the purpose of limiting the cost of the new procedure. The Government are in no way hostile to the proposals in this Bill—in fact, they have now expressed full sympathy with the objects which it is intended to secure—but naturally they must reserve to themselves the right to modify the new system by amending legislation if experience shows that it imposes an excessive financial burden upon public funds. Subject to this reservation, the Government welcome the proposals put forward in this Bill. As your Lordships have already been told, this Bill was passed in another place not only without a Division but with a chorus of approval. It is felt that it is not sufficient to remove the difficulties which prevent a poor man from appealing, but it is also desirable to make the crooked straight and the rough places plain. This is one of the rough places of the law and its harshness will be remedied by this Bill which has secured very general public approval. I beg to move that it be now read a second time.

§ LORD ATKIN

My Lords, I am quite sure that anybody interested—and I am certain all your Lordships are—in the administration of criminal justice, and especially before our courts of summary jurisdiction, will be very gratified that this appeal has been introduced and has the support of the Government, for it remedies what has been a blot on the administration of the Criminal Law in this country for a great number of years, and one that has been suffered by everybody engaged in the administration of justice. The position has been that, whereas a man charged upon an indictable offence since the passing of the Criminal Appeal Act could appeal to the High Court, either from his conviction or from his sentence, practically with no expense to himself, a person convicted before the Justices 1040 could not appeal at all unless he found recognisances for a sum which, as the Lord Chancellor has just said, was generally a matter of £50. In other words, the appeal that was given from the Justices was a mere mockery, and all the more a mockery because in theory a man can now appeal from any conviction by Justices which involves a fine of more than 40s.; but it has been, as I say, mere waste paper to most poor people.

This appeal is going to remove that abuse, and it is all the more necessary in view of the fact that the jurisdiction of the Justices is being extended day by day. An immense amount of work goes before the Justices now in connection with the Criminal Law, and the sad position is that those who have to practise before the Justices know that the ordinary manual, Stone's Justice of the Peace, has grown to a volume of 2,200 pages and it grows every year; and it is not only increased by the increased jurisdiction given to the Justices, but it is very much increased by the power which is given to the Justices, with the consent of the accused person, to try a man summarily, though he is charged with a criminal offence. That is becoming a very prevalent, and I think too prevalent course, because a great deal of the serious crime of this country is now determined before the Justices on a kind of bargain—not an avowed bargain—that is made between the authorities and the criminal, by which the criminal says: "On condition that you will not give me a sentence of more than six months I will undertake to submit to your jurisdiction, and thereby save you the expense of sending me to Quarter Sessions or Assizes."

That is happening in a very large number of cases, and the result is that a, man who is charged before the Justices and given six months has practically no appeal at all unless he can find sureties for £50, whereas, if the man goes to Quarter Sessions and is convicted of the same offence and gets the same punishment, he can appeal without any money at all. That is going to put an end to this anomaly and I am very glad it is. Personally I should like to see some of the formalities that still attend appeals to Quarter Sessions modified. You still 1041 have to give notice, and yon still have to give recognisances and—this House will hardly believe it—the technicalities are so great that, in one case that I remember came before the Court of Appeal when I was a member of it, a man had appealed from Quarter Sessions but had, under the rule as it is now, to given notice of appeal and then to enter into recognisances. He had on the same day and the same hour entered into recognisances and then given notice of appeal, and the Quarter Sessions refused to entertain his appeal because they said it was irregular, and not in accordance with the Act. Unfortunately we were unable to set that right. But that is an abuse, and I should be very glad to see a change by which Quarter Sessions would have the right of saying that they would entertain an appeal even if there was an irregularity if they thought that no injustice had been done. Possibly the Lord Chancellor will consider that point.

There is another point. If appeals are going from the Justices one has to be very careful to whom they go. They go to Quarter Sessions. The present proposal is that there should be a Committee of Appeal, consisting of not less than three nor more than five persons, and I venture to think that that is really an unworkable provision for this reason. The appeal is not, as an appeal to the High Court is, on facts which have already been found and on the evidence which has been given in the Court below. As the Lord Chancellor pointed out, the appeal to Quarter Sessions is a re-hearing, and all the witnesses must be present and all of them must be heard. And it appears to me that, inasmuch as the appeal would be on questions of fast, it is an almost impossible position that if a man has been convicted, we will say of an act of cruelty—unanimously convicted by a Bench of Justices consisting of six or eight or ten members—there should be an appeal to three other Justices, who are rot more qualified, because they are simply Justices of the Peace, who should have the power of reversing the decision of the eight or ten. To my mind that is not in the least likely to cause respect for decisions of the Court of Quarter Sessions, and I cannot help feeling that this provision is 1042 one that will have to be very seriously considered.

For my part I cannot help suggesting that the whole position of the Chairman of Quarter Sessions might very well be reconsidered in the future. It is nowadays such a technical job that it ought to be in the hands of an experienced lawyer. I think it is very difficult for any layman, whatever his qualities, really to steer his way through the intricacies of law that constantly arise on these questions of appeal; and I should be very glad to see, either in this Bill or in some other measure, some provision that, not necessarily the Chairman of the Quarter Sessions, but the President of the Court of Quarter Sessions, should be a lawyer. In fact he might very easily be the County Court Judge of the district. But these are matters which I suppose arise more properly on Committee. I am sure that this Bill will remove a real blot on the administration of justice, but I rather shrink from contemplating the consequences suggested by the Lord Chancellor—namely, that, though there was a blot on the administration of justice, still it ought to be restored, even though it is removed now, if it turns out to be somewhat expensive to do the justice that ought to be done. I do not think it is very likely that, once the Government have had experience of this Bill in operation, they will wish to restore the old practice.