HL Deb 20 July 1948 vol 157 cc1090-2

After Clause 33, and page 37, line 46 at end insert the following new clause—

Power of Court of Criminal Appeal to order new trials.

("(1) Notwithstanding anything in section four of the Criminal Appeal Act, 1907, where an appeal against conviction is allowed by the Court of Criminal Appeal under that Act and it appears to the court that the interests of justice so require, the court may, instead of directing the entry of a judgment and verdict of acquittal, direct the appellant to be re-tried upon the whole or any part of the indictment:

Provided that—

  1. (a) where the appellant was acquitted on any part of the indictment, the court shall not direct him to be re-tried on that part; and
  2. (b) if the appellant, being convicted on the re-trial, again appeals against his conviction under the sail Act, the court shall not direct him to be le-tried a second time.

(2) An appellant who is, directed to be retried under this section shall be re-tried before such court as the Court of Criminal Appeal may direct; and where by virtue of any such direction an appellant is to be re-tried before a court of assize or quarter sessions before which he could not have been tried but for the direction, that court shall have jurisdiction for all purposes connected with the re-trial as if the offence had been committed within the jurisdiction of the court.

(3) Where the Court of Criminal Appeal direct an appellant to be re-tried under this section, the court may make such orders as appear to the court to the necessary or expedient for the purposes of the re-trial, including orders—

  1. (a) for the amendment of the indictment upon which the appellant is to be re-tried;
  2. (b) for the custody or admission to bail of the appellant, and for the attendance of witnesses and other persons at the re-trial.

(4) Where an appellant is re-tried by virtue of a direction under this section before any court of assize or quarter sessions before which he could not have been tried but for the direction, any costs payable in the case under the Costs in Criminal Cases Act, 1908, shall in the first instance be paid in the same manner as if the offence had been committed in the county or county borough in which he is tried, but shall be recoverable from the treasurer of the county or county borough in which the offence was or was supposed to have been committed.

(5) In relation to an appellant who was tried separately on any count or counts of an indictment, the provisions of this section shall have effect as if those counts had been found in a separate indictment.")

Clause 40, page 42, line 18, at end insert— ("(5) Where, in pursuance of a direction of the Court of Criminal Appeal under section (Power of Court of Criminal Appeal to order new trials) of this Act, any person who has appealed to that court is re-tried before a court of assize or quarter sessions, and is acquitted on the re-trial, the sums which maybe directed by the court of assize or quarter sessions to be paid out of local funds under this section shall include—

  1. (a) any sums which the Court of Criminal Appeal might have directed to be so paid on the appeal to that court and
  2. (b) (if an appeal was brought to the House of Lords from the decision of the Court of Criminal Appeal) any sums which the House of Lords might, or might if that appeal had been determined in his favour, have directed to be so paid on that appeal.")

The Commons disagreed to the above Amendments for the following Reason: Because it is undesirable that any person convicted of an offence should again be tried for the same offence.


My Lords, having taken some part in getting this Amendment inserted, I think it is obvious that I deserve, and I shall probably receive, another short and sharp rebuke. I think it is more likely to be sharp than short. I confess I am sorry that the House of Commons took this view. I relied on the fact that I had had the opinion expressed to me by successive Lord Chief Justices, one after the other, that this was a desirable reform. On the other hand, in your Lordships' House we listened to a most powerful speech from the noble and learned Lord, Lord du Parcq. It was obvious that the lawyers were divided, the noble and learned Viscount, Lord Simon, and the noble and learned Lord, Lord du Parcq, taking one view, and other noble Lords taking another view. When the matter went back to another place and soundings were taken (as of course they are) through the usual channels, it became apparent that in the House of Commons the overwhelming body of opinion of those with experience in this matter on both sides of the Chamber was against this new proposal. The exceptions I know of were two honourable Members on the Opposition side, to whose views I pay great regard—Mr. Manningham-Buller and Mr. Hogg. With those exceptions, I believe I am right in saying that there were no lawyers of eminence on either side prepared to support this proposal. That being so, this matter never even went to a Division, and the Amendment against this proposal was affirmed. In these circumstances, I feel it would be idle for us to insist on this point, which was carried by a Division here in which the lawyers were themselves divided and which found no favour in the House of Commons—not even sixty-two. No one at all was prepared to support such an Amendment. In the circumstances, I beg to move that this House do not insist on the said Amendment.

Moved, That this House do not insist on the Amendments to which the Commons have disagreed.—(The Lord Chancellor.)


In view of what the noble and learned Viscount the Lord Chancellor has just said, I suppose it will be impossible to ask your Lordships to retain this clause. For myself, like my predecessors, I valued the change that the clause as it left your Lordships' House would make in the law. I believed, and I do believe, that it would be a most valuable adjunct to the Court of Criminal Appeal to be able to do that which the clause would enable them to do. I recognise that there was a great division of opinion in your Lordships' House, but though I listened attentively to every speech, I cannot say that my view was altered in any way. However, I know that I may be wrong. In view of the division of opinion in this House, and the unanimous opinion in the other place, while I confess that I do not understand it, I must reluctantly bow to it. Therefore, I do not ask your Lordships to insist on the Amendment.


My Lords, I should like to say a few words, which will not in any way be a short, sharp rebuke, but rather a condolence with the Lord Chancellor. The last occasion when we discussed this matter in this House was, so far as my recollection goes, the only occasion in recent years in which the Government have had a majority in a Division in this House. I took some small part in helping them to achieve that result. I must say that when I came to look at the Report of the proceedings in another place, I could have understood it if, at the end of considerable argument there, the Attorney-General had then bowed to that argument. But I was rather astounded to see that he immediately rose and, without any such argument beforehand, moved to delete the very clause that the Lord Chancellor had moved in this House, and which some of us had done our best to support. I am glad to hear that there was some reason for it, and that soundings were taken beforehand. I thought it only right that the Lord Chancellor and I on this occasion should quietly condole together.

On Question, Motion agreed to.