HL Deb 13 May 1936 vol 100 cc1000-4

Read 3a.(according to Order).

Clause 1:

Privilege of Peerage in relation to criminal proceedings to be abolished.

1.—(1) Privilege of Peerage in relation to criminal proceedings is hereby abolished.

(2) The procedure to be followed, the punishments which may be inflicted, the orders which may be made, and the appeals which may be brought shall, whatever the offence and wherever the trial is to take place, be the same in the case of persons who would but for this Act be entitled to privilege of Peerage as in the ease of any other of His Majesty's subjects.

LORD RANKEILLOUR moved, at the end of subsection (1), to insert: Provided that if any Peer be committed for trial for treason, the trial shall take place before three of His Majesty's Judges and a special jury either at liar in the King's Bench Division or in virtue of a Special Commission elsewhere. The noble Lord said: My Lords, after the minds of your Lordships have been so earnestly concentrated and absorbed by constitutional points of the highest importance, and by the relations of the Government at home to the Colonies, I hope that it will still be open to you to consider the very minor point in connection with this Bill and with the administration of justice which I wish to raise by this Amendment. But first of all I feel an initial difficulty. Treason is so great an offence, the responsibility of your Lordships as legislators is so great, and therefore the commission of treason by any one of your Lordships so aggravates that offence, that the trial of any one who should be so committed should have every possible care, dignity and solemnity in its course. Of course, this principle and this argument are equally valid when applied to legislators in another place, and I would gladly have included them, if it had been possible, in this Amendment. Indeed, I should have gone farther and included Privy Councillors, whether members of either House of Commons or not, and I should have no objection if this procedure which I suggest were extended to all subjects of His Majesty. Unfortunately that cannot be done. We cannot bring in commoners and Privy Councillors, as such. Certainly when I first came to this House I was amazed, and perhaps a little shocked, by the licence in procedure which your Lord-ships ships enjoyed; but I think it would be an almost unheard-of extension of that licence if, in a Bill which professes to take away the privilege of Peers, an Amendment were proposed to give additional privileges to commoners. Therefore I can only hope that if this Amendment is accepted the Government will, in their wisdom, take steps to put commoners on the same plane, and give them the same rights, if they be members of the other House, as I think your Lord-ships will obtain under this Amendment.

What I seek to do by this Amendment is to give to any Peer committed for trial for treason the benefit of what in fact is the ordinary practice in trials for treason, though not the universal practice, that is, that the case should not be taken at the Assizes or the Central Criminal Court, before a single Judge, but should be taken before three Judges. That was done in the case of Roger Casement and in the case of Lynch, within, recent memory. They were tried at Bar in the King's Bench Division, in both cases, although they had no right to such trial. It could only have been done, and was done, on the motion of the Attorney-General, that is to say, of the Government of the day, and the Government of this day might be actuated by political motives in giving or withholding assent to the Attorney-General in making such a motion. Since I first raised this point at an earlier stage of the Bill I have been informed that there was actually in the year 1914—I have been so informed by a learned Lord—a case for treason which resulted in a conviction during the War, and a sentence of death was passed, but the Court of Appeal set the verdict aside on the ground of misdirection. Therefore it does show it is a matter of great importance that a case of this, extreme gravity should not be left to the discretion of a single Judge and a common jury.

There is another point and that is, as I understand it, that even when a trial at Bar is allowed, a special jury is not allowed, and that of course my Amendment would seek to remedy. It has also been put to me that to transfer everyone of such cases into the King's Bench Division might result in great hardship to the prisoner and inconvenience to the Crown, if the witnesses were to be drawn from a distant part of the country, and in fact this case of conviction for high treason did take place at Newcastle Assizes. Therefore, if those considerations were to prevail it might be fair to the prisoner and convenient to the administration of justice that a special Commission of three Judges should be appointed to hear the case. Just to sum up my argument, in a case of this great gravity, I think that every precaution should be taken to secure the administration of justice, and that can be secured by the procedure of trial at Bar, or the other procedure which I suggest, and now that your Lordships are parting with your privileges in this respect I think at least they should be given that substitution which is already allowed in the course of justice, and which I suggest should not only be allowed but required. I beg to move.

Amendment moved— Page 1, line 14, at end, insert the said proviso.—(Lord Rankeillour.)


My Lords, I was rather hoping that someone else might have answered my noble friend, rather than myself, but I should like, if allowed, to state what is my own personal view about the matter, I find myself in a certain measure of agreement with my noble friend Lord Rankeillour. I think that trials for treason, which is almost by itself as the supreme offence against the State, ought to be tried, or be capable of being tried, by a special tribunal erected for that purpose, and in fact the tribunal which has in practice been used is what we call trial at Bar, by three Judges. My noble friend will forgive me. He has, I think, made one slight mistake in his usually very accurate statement of the law. It is quite true, as my noble friend has said, that the Crown has a right, on the motion of the Attoney-General, to claim that such a case be removed for trial before three Judges, either with a special or common jury, according to the category of the offence. But it is not true that that is the only way in which it can be done, so that it rests with the Crown whether it shall be done or not. Equally with the Crown the subject has a right to apply for trial at Bar, the only difference being that the Crown has the right to demand it, and to insist that it shall be granted, but the subject only has the right to ask for it, and it is in the discretion of the Court to say whether the case is one which is proper for such a method of trial. In practice, one can hardly imagine any Court failing to recognise that a trial for treason is pre-eminently the sort of case which ought to go before this special tribunal. Therefore the danger which my noble friend thought he had detected, that it rested with the Crown to settle whether or not this mode of trial should be adopted, does not exist.

The objection to my noble friend's Amendment as it stands is this: The essence of this Bill is that this House, having carefully considered the whole matter, has come to the conclusion that there ought to be no difference in the method of trial between a Peer and any other citizen of the realm, and that we ought to accept the same form of trial as that which prevails for anyone who is not a Peer. The essence of this Amendment, if carried, will be that Peers will have a special privilege which is denied to everyone else, and that I think is a mistake, and runs counter to what I think is the principle of the Bill. I think, however, I can help my noble friend. The Business of the Courts Committee, over which my noble and learned friend Lord Hanworth presided with so much distinction, recommended that this method of trial at Bar should be preserved, and that it should be dealt with in the appropriate Crown Office Rules when any legislation authorising them should take place. It happens that to-day, for some obscure reason which I am unable to elucidate, if a man is accused of treason committed without the realm, committed for instance by assisting the King's enemies abroad, he must be tried at Bar. That already is the law. There remain only the cases where a man is accused of treason committed within the realm, where the rule is, as I have said, that the Crown can claim that he should be tried at Bar and that he can apply to she Court that he shall be so tried. I think it would be a desirable alteration that both the Crown and the subject should each of them have the right to claim that in cases of treason the trial should take place at Bar.

It will be necessary—I am afraid not to-day or to-morrow, but certainly within a short time—to introduce legislation to give effect to the Business of the Courts Committee's recommendation and to make alterations in the Crown Office Rules, which are in a very confused and unsatisfactory state, and which we have got to put right and modernise. As soon as I cap persuade my colleagues in the Government to find a little time I am hoping to introduce legislation to that effect, and I certainly should be prepared in that legislation to include a provision by which a trial at Bar shall be the right of the subject equally with the Crown instead of being the right of the Crown and at the discretion of the Court in the case of the subject. That, your Lordships appreciate, will effect for everybody what my noble friend desires to effect for members of your Lordships' House. Although undoubtedly it means waiting until that legislation is enacted, it does avoid what I think would be a very unfortunate thing—namely, the perpetuation of a distinction which it is the object of this Bill to do away with. It is for that reason that I rather hope that my noble friend may see fit not to press this Amendment.


My Lords, I sincerely thank the noble and learned Viscount on the Woolsack for the reply he has given. May I say, in extenuation of the point that I missed, that I delved deeply in Halsbury's Laws of England, as revised under the noble and learned Viscount's own authority, and failed to find that the subject had the right to move for a trial at Bar that he now says that he has. I raised this point on each occasion that this Bill was before your Lordships, and until now, although there was no want of noble and learned Lords in the House, none of them corrected me. May I say also that I have no wish to assert a special use for your Lordships, but merely that the Rules of Procedure obliged me to move the Amendment in the form that I did; but after the extremely sympathetic assurance that the noble and learned Viscount has given me I cannot do other, and I wish not to do other, than ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Bill passed, and sent to the Commons