CRIMINAL JUSTICE BILL.

HL Deb 07 June 1948 vol 156 cc400-39

9.0 p.m.

House again in Committee.

LORD CROMWELL

The value of this House, as all will readily admit, lies in the fact that one can find experts on any topic that is likely to be brought up. Although I have a great mistrust for expert witnesses, as such, in a court, that cannot apply to our debate to-day. As a layman, I think that when all those people most qualified to give their opinion on any particular subject—and it is a legal matter—are on one side, the layman cannot go far wrong in following their advice. But when they differ, as has been the case this afternoon, it makes it much more difficult; and it places the ordinary layman more or less in the position of a Judge in court when one expert witness says that something is black and another says it is white, and the Judge has either to agree with one or the other, or to decide that the colour is grey. I think that in order to come to a decision—and it is up to everybody to come to a decision—it is necessary to ask a series of questions. I am going to ask some questions, the answers to which appear to me to be simple.

As I understand it, cases go before the Court of Criminal Appeal only on a verdict of "Guilt." It may be a case of "Guilty on all counts" or of "Guilty on one or mere counts and not guilty on others." In a case where the verdict is "Guilty on all counts," so far as I can see, the prisoner can suffer no injustice by a re-trial, in that he must at least get the benefit of being found not guilty or reaffirmed as guilty—in which case he suffers nothing at all from the re-trial. But, as I understand, under this clause, if it is put in the Bill and if the Bill becomes an Act, when a man appeals, having been found guilty on one count and, for example, not guilty on five others, the Court of Criminal Appeal may order a re-trial on all counts. I think I am right in that assumption, and if I am right I confess that I am much impressed by the arguments used by the noble and learned Lord, Lord du Parcq. I do think, as he seemed to say, that it is very dangerous to reopen cases on "Not guilty" counts. The noble Lord has suggested that, if he has sufficient following, he will be prepared to move and vote against the inclusion of this clause. If he does so, unless I can hear any other arguments which convince me that I am wrong, I shall, if I am still in doubt, even though not entirely convinced by the noble Lord, Lord du Parcq, vote for the status quo.

LORD OAKSEY

I should like to add a word or two to what has been said. I cannot claim to have had the great experience in the Court of Criminal Appeal which the noble Lord, the Lord Chief Justice, has had. But I think that very great weight attaches to his opinion and to that of other members of the Court of Criminal Appeal who have, as I understand expressed their view in favour of this clause. If I may say so, I think the argument of the noble Lord, Lord du Parcq, to some extent left out of consideration the fact that the clause could apply only when a man had been convicted—and convicted on the very principles of English law upon which the noble Lord relied; namely, that the man should be given the fairest possible trial and should be convicted only if there was no reasonable doubt. That is a point, of course, which is impressed upon juries in every case. When a man was convicted in such circumstances, a re-trial would be ordered by the Court of Criminal Appeal only in cases where, for some technical reason, the conviction had to be quashed. I would suggest that possibly the Court of Criminal Appeal would take into account, in considering in what cases they would order a re-trial, cases where there had been a tremendous amount of publicity. In a case like that of which the Lord Chief Justice spoke, where the two detectives had been tried and convicted on the one count of conspiracy, the unfortunate publicity which attached to the case must make it difficult for a re-trial on fair lines. But I think that is a matter which the Court of Criminal Appeal would consider in deciding what cases should be re-tried. On the whole, I feel that I should support the view of the noble and learned Lord, Lord Goddard.

LORD BLACKFORD

May I be allowed to say, as a layman, hat, in spite of the worthy words which have just fallen from the noble and learned Lord, Lord Oaksey, I was much impressed by the remarks of the noble and learned Lord, Lord du Parcq, and by the feelings underlying them? And if he decides to divide the House on this issue I shall support him.

LORD GODDARD

I would like to try to make the position a little clearer with regard to my suggestion that it would be a good thing to give the Court of Criminal Appeal the power—to be exercised, of course, with great care—to grant a new trial, even though it involved the re-trial of a man on a count on which he had been found not guilty. I am impressed with what Lord du Parcq said about the strain on a man having to stand his trial a second time, but I would remind your Lordships that that is by no means unknown at present. It not infrequently happens that a jury disagrees, and the man then has to stand his trial a second time. In that case, he probably stands it in the same town or place where he was previously tried.

The first case where I should like to see a re-trial is where the verdicts are repugnant. It is not often that you find an indictment containing three or four counts where those counts do not refer substantially to the same subject matter. You can put in quite different crimes. Of course, if quite a different crime were put into the indictment on which a man was found not guilty from those on which he had been found guilty, no one would think of having him tried again on those counts of "Not guilty," because there would be nothing repugnant in the verdict. The re-trial would be only where the counts related to the same set of circumstances—as I illustrated with the conspiracy, on which the jury found the men guilty. If they found them guilty of conspiracy they must have found them guilty of being dishonest men. They could not otherwise have found them guilty. I do not say that I looked into the minds of the jury, because I could not, but the only reasonable explanation I could find of their not having found them guilty on the other counts was chat they were not all satisfied. Some may have found them guilty on one count and some on another—I do not know. If, therefore, there is a verdict which is repugnant, it seems to me that the only fair thing to everybody concerned, including the prisoners, is to re-try them. You can only re-try them once, and no one suggests that you can re-try the m a second time.

I was considering whether I should be prepared, if the noble and learned Viscount thought right, to suggest that the clause should be drafted so that a new trial could be ordered only where the verdict was repugnant. But there is just one other class of case which, for some reason or another, has been very prevalent lately. It is always the custom—and quite rightly—when a man is charged with stealing, to put into the indictment a count for stealing and a second count, which is quite alternative, for receiving goods well knowing them to have been stolen. We constantly find cases in which a jury come back and say: "Not guilty of stealing, but guilty of receiving." Then the objection is taken: "But there was no evidence here upon which the jury could find him guilty of receiving. We cannot understand why the jury should say it was receiving." Receiving is a much more technical matter to prove than stealing. The evidence may show that the man is guilty of stealing, but the jury, for some reason, say: "Not guilty of stealing, but guilty of receiving." One is left in doubt, therefore, as to what the jury really mean. The court must say: "Well, as the jury have found him guilty of receiving we must give judgment." Then when the case comes before the Court of Criminal Appeal the Judges constantly have to say that the verdict does not make sense, and that there is no evidence that the man received the goods from anybody but himself. You cannot receive stolen goods, or any other goods, from yourself; you either have them or you have not. You have either stolen them or you have not stolen them. If you have stolen them, you cannot receive. If, on the other hand, you have not stolen them, there is probably not the least evidence that you have received them from any human being. I admit that that case is not so important as the case of the repugnant verdict, and it is the case of the repugnant verdict which I think ought to be dealt with in some way; and the way I can see is by ordering a new trial. That is the only reason why I think that the Court should have power to do it. If safeguards can be put into the clause, no one would be more pleased to see them than I would.

THE LORD CHANCELLOR

I may perhaps tell your Lordships how my mind is reacting. I do not feel strongly or keenly upon this matter, one way or the other. After all, we all want to see justice in these cases, but justice involves two things: it involves the acquittal of the innocent and the conviction of the guilty. If there is a risk of the first principle being endangered, then I entirely agree with the noble and learned Lord, Lord du Parcq, that it is better that ten guilty men should get off rather than that one innocent man should be convicted. May I point out that, as I see this clause, there are two distinct questions. As to the first, I feel no difficulty at all in my own mind. That was the case of which I gave an illustration, of a billiards club or a billiards room. There a man was found guilty by a jury and, as he had been found guilty, he could not appeal to the court at all. There was some error in the summing up of the Chairman of Quarter Sessions. Surely there is no hardship in saying to that man, "We will give you the benefit of a re-trial by reason of this error." I fail to see any hardship in that, and I do not think the noble Lord who spoke just after the adjournment sees any hardship either. If he agrees with me, the right thing to do is to support the clause and to consider amending it to deal with the second case to which I now come.

The second case seems to me a much more doubtful proposition, because here you are involved in a re-trial of a matter in regard to which the jury have found a man not guilty. Obviously, it should be done only in exceptional cases. I should have thought that if it were confined to the cases of repugnant verdicts no harm would be done, and for that purpose, if necessary, we can consider an Amendment at a later stage. Proviso (a) of the proposed new clause says: Provided that where the appeal relates only to part of the indictment upon which the appellant was tried, the court shall not direct him to be re-tried upon any other part thereof unless in the opinion of the court it is necessary to do so for the purposes of the proper re-trial of the appellant upon any part thereof to which the appeal relates. That is the way we are trying to do it at the present time. I am not saying it is necessarily the happiest way of doing it. You might be able to get a different form of words, and I should be very ready to consider a different form; but I suggest that some limitation of that sort being in the clause makes the second part of the clause also desirable. That is the proposition I advance.

A further point has occurred to me connected with the policemen who have been mentioned. Let us assume the two policemen are honest men wrongly accused. It seems to me rather a hardship on them that they should have standing against them this verdict of a jury and the remark of the judge of the Appeal Court that they were scoundrels; and that they should be without any chance of rehabilitating their character. Is it not right and in their interests, if they really have a grievance, that this matter should be tried again? They may be found not guilty of anything. How difficult a position it is that these men, with a slur of this sort on their character, should go back as detectives in the police force. After all this is justice, not a kind of game we are playing. It is the administration of justice. I feel that, always provided we can trust the discretion of the Court of Criminal. Appeal—and according to my experience I am sure we can—this power will be used very sparingly. In such cases as that of the billiards room I see no difficulty whatever in giving the Court this power, and in the second class of case, so long as it is carefully guarded by proper words, equally it seems to me all right. But I will certainly look at the clause and see whether more careful safeguards should be introduced on the Report stage. If your Lordships will give me this clause now, we can certainly return to the matter on the Report stage, when we shall have had time to digest the very cogent remarks which the noble Lord, Lord du Parcq, made, and see whether we are satisfied that the difficulties to which he called our attention have been removed. Therefore I would ask your Lordships at this stage to give me the clause on the understanding that we will look at the matter again on the Report stage.

LORD CROMWELL

I am prepared to accept the undertaking given by the Lord Chancellor, so far as I am concerned. I think we ought to let the clause go through at this stage. However, I think it is wise to give notice now that I should like to put down an Amendment to leave out the last three lines of proviso (a) and end it by saying: the court shall not direct him to be re-tried upon any other part thereof of which he has been acquitted. I really think that we are entering upon most dangerous ground if we once admit that a person who has been acquitted on a count may be re-tried upon that particular count.

I agree wholeheartedly on that with my noble and learned friend Lord du Parcq. I do not think the noble Lord likes the whole of this clause. I do not mind a man who has been convicted on a count having to go back—because, after all, he has appealed—and I do not mind its being said: "Well, the Court of Criminal Appeal is not going to quash the conviction. What it is going to gave is a second chance; and you have a second chance of persuading a jury that you are not guilty." I make a tremendous distinction between that case and the case of a count upon which a man has already been acquitted. I think we ought to allow this clause to go through now, but that some such Amendment should be made. Perhaps we may be able to have a talk about it between now and Report stage. I feel that there is a real question of principle involved in saying that any court may direct a man to be re-tried on a count upon which he has been already acquitted. I should hate to see this House agreeing to any such principle.

VISCOUNT ST. DAVIDS

After listening to the speeches that have been made, I, as a complete layman, feel troubled about this clause, particularly in the matter of a re-trial on counts upon which a man has been acquitted. The cases upon which trouble will arise will be particularly the ones on the edge of doubt. I can imagine an innocent man going up to the Court of Appeal, having been convicted upon one at a long chain of counts, and his lawyer saying to him "Do you really wish to appeal? Because if you do appeal, you may have those other counts brought up again." I do not know whether that is possible. I should like to hear more upon this point from the legal luminaries. But it seemed to me that it was possible for some such thing to occur, with the result that the innocent man who wished to appeal on the one count where he had been convicted would be deterred by the fact that other counts might be brought up against him again in a case in which strong circumstantial evidence had been partly against him.

LORD SALTOUN

Surely, if he is an innocent man he would face anything to establish his innocence? I have been in that position myself and I know that I would have faced anything to put things right.

LORD RAGLAN

It seems to me that the difficulty of the case put forward by the noble Lord, Lord Llewellin, is this: that in the case of the policemen, about which we have heard so much, if they were not tried again on the count upon which they had been acquitted, they could never have been tried at all.

On Question, Amendment agreed to.

9.24 p.m.

Clause 34:

Amendment of Criminal Appeal Act, 1907.

34.—(1) Subsection (3) of section fourteen of the Criminal Appeal Act, 1907 (which relates to the reckoning of a term of imprisonment pending the determination of an appeal under that Act), shall have effect as if references therein to a prison and imprisonment included references to a Borstal institution, detention centre or remand home, and to detention in such an institution, centre or home, or to detention under a sentence of corrective training or preventive detention, as the case may require.

THE LORD CHANCELLOR moved to leave out subsection (1) and to insert:

"(1) Where an appellant within the meaning of the Criminal Appeal Act, 1907, is admitted to bail under that Act, the time during which he is at large after being so admitted shall be disregarded in computing the term of any sentence to which he is for the time being subject.

(2) Subject as hereinafter provided, six weeks of the time during which any such appellant, when in custody, is specially treated as such in pursuance of rules made under Section forty-eight of this Act, or the whole of that time if it is less than six weeks, shall be disregarded in computing the term of any such sentence as aforesaid:

Provided that—

1. (a) the foregoing provisions of this subsection shall not apply where leave to appeal is granted under the Criminal Appeal Act, 1907, or any such certificate as is mentioned in paragraph (b) of Section three of that Act has been given for the purposes of the appeal; and
2. (b) in any other case, the Court of Criminal Appeal may direct that no part of the said time, or such part thereof as the court thinks fit (whether shorter or longer 408 than six weeks) shall be disregarded as aforesaid.

(3) Subject to the foregoing provisions of this section, the term of any sentence passed by the Court of Criminal Appeal under the Criminal Appeal Act, 1907, in substitution for a sentence passed on the appellant in the proceedings from which the appeal is brought shall, unless the court otherwise directs, begin to run from the time when it would have begun to run if passed in those proceedings, and references in this section to any sentence to which an appellant is for the time being subject shall be construed accordingly.

(4) In relation to a person sentenced to Borstal training, any reference in this section to the term of that sentence shall be construed as a reference to the periods during which, under the Second Schedule to this Act, he may be detained in a Borstal institution; and nothing in this section shall be construed as affecting any period during which a person so sentenced is liable to supervision under the said Second Schedule."

The noble and learned Viscount said: This is a clause dealing with the period of time from which the sentence is to start. As your Lordships are aware, a man appeals to the Court of Criminal Appeal but, assuming that the sentence is not altered, the time, unless some special order is made to the contrary, starts running—I think this is right—from the date of the sentence of the Court of Appeal.

LORD GODDARD

If he applies for leave to appeal and leave is not given. If leave is given, it always dates from the conviction.

THE LORD CHANCELLOR

Yes; that is, subject to the Lord Chief Justice's reminder, that if leave has been given to appeal then the time of sentence dates from conviction. There is no problem about appellants being admitted to bail. Admittedly, assuming the man's sentence is upheld, his time must start running from the sentence of the Court of Criminal Appeal; but where he is kept in custody, unless the court makes some other order, then under this new clause he sacrifices six weeks—that is to say, he will be worse off by six weeks. If he is kept in prison for ten weeks, then four weeks—and four weeks only—will count towards his sentence; but six weeks will not. But that is all subject to the Court of Criminal Appeal having power to make any other order it thinks right. This has been worked out as a reasonable basis, and I hope it will commend itself to your Lordships. I beg to move.

Amendment moved— Page 38, line 1, leave out subsection (1) and insert the said new subsections.—(The Lord Chancellor.)

LORD LLEWELLIN

Does that mean that if anybody appeals without the leave of the Court of Criminal Appeal, six weeks will automatically be added to his sentence because he has appealed?

LORD GODDARD

No.

LORD LLEWELLIN

Then what does it mean?

LORD GODDARD

I think I can give a simple explanation to the noble Lord. The original Act provides that where a prisoner appeals or applies for leave to appeal, the time that he has spent in prison waiting for his appeal to come on shall not, unless the court otherwise orders, count towards his sentence. For years past, the Court of Criminal Appeal have worked upon this principle: prisoners can appeal as of right in one of two cases—namely, where a certificate has been given to them by the trial court, or if they appeal on point of law only. If they want to appeal on fact, or mixed questions of law and fact, they can appeal only with the leave of the Court. Applications for leave to appeal are heard every Monday morning. If a prisoner is appealing as of right and his appeal is dismissed, I think I may say the Court invariably order that the time that he has been in prison awaiting his appeal to come on shall count as part of his sentence. If he applies for leave to appeal and that is granted, the appeal will then probably come on after a week. Again, if he has been given leave to appeal, the Court always grants the application that the time he has spent waiting shall count as part of his sentence. That is because the very fact that he has been given leave to appeal shows, at any rate, that there was something to talk about, something to appeal about, and some reason for appealing.

I do not want to exaggerate but at least 80 per cent.—and, I believe, even more—of the cases which come before the Court of Appeal are purely frivolous. The country is put to a very great expense indeed in regard to these appeals, more especially in regard to receiving cases and black market cases, where the appellants usually have plenty of money. Very often 100 or 200 pages (and I have known even 360 pages), of the transcript of the shorthand notes have to be prepared in a case where there has been absolutely nothing about which to appeal—where the question was purely one for the jury, and the jury have convicted. There must, therefore, be some sanction against frivolous appeals.

That sanction was provided in the original Act by making the time which the prisoner has waited for his appeal to come on not count as part of his sentence. Appeal, therefore, may increase his sentence. He is treated as an unconvicted prisoner and there is little difference in the treatment. In effect, he gets eight weeks more, because for years now we have followed this rule. We found that it was almost impossible to get cases before the Court of Criminal Appeal more quickly than eight weeks after the conviction. Shorthand writers are, after all, only human. They have to get their transcripts out and transcripts have to be copied. Very often it is a long business. The transcript has to go to the Scriveners' Department and, if necessary, further copies have to be made. We have found that the average time for an appeal to come on is eight weeks. At present the Court makes this order unless the case is a wholly exceptional one. We always give the man the benefit of what we call the "eight weeks' rule." If the appeal takes, say, ten or twelve weeks to come on, we treat it, for sentence purposes, as if it had in fact come on within eight weeks.

The only difference to the existing practice which this Amendment makes is that in the future we shall give the man who appeals the benefit of what will, in effect, be a six weeks' rule instead of an eight weeks' rule. We shall treat the appeal as though it were heard within six weeks of his conviction, and not within eight weeks. I should view the position with great apprehension if an alteration were made in the original Act and it was said that the whole time that the prisoner was waiting in custody should count towards his sentence. That would mean that every convicted prisoner would put in an application for leave to appeal, 'because he would have everything to gain and nothing to lose. During the time that he is treated as an unconvicted prisoner he can have more visitors and more letters, and it may be arranged for him to have his food sent in from outside. Therefore there would be every inducement for a man to appeal, even if he had absolutely no hope. And, indeed, there are regrettably few cases that come before the Court of Criminal Appeal in which there is any serious question to be argued. Of course the Court does not usurp the functions of the jury. We cannot see the witnesses or hear the witnesses and it would be quite wrong to usurp a jury's functions. Therefore there ought to be some solid ground of appeal, but very often there is not. The only sanction which can be employed is the time which the man will be waiting in custody. If you accept this Amendment—I have no objection to the extra fortnight being granted; it will mean that a man who has been convicted on, say, the first day of the month and whose appeal does not come on for eight weeks will get the benefit of a fortnight—the appeal will be treated as though it were heard within six weeks whereas at present it is treated as though heard within eight weeks of conviction.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment is consequential upon the one which we have just passed. I beg to move.

Amendment moved— Page 38, line 11 leave out ("said Act") and insert ("Criminal Appeal Act, 1907").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This also is drafting. I beg to move.

Amendment moved— Page 38, line 15, leave out from ("mercy") to end of line 18.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 34, as amended, agreed to.

THE LORD CHANCELLOR moved, after Clause 34 to insert the following new clause:

Appeals from High Court in criminal cases.

".—(1) Notwithstanding anything in Section thirty-one of the Supreme Court of Judicature (Consolidation) Act, 1925, any person aggrieved by a judgment of the High Court in a criminal cause or matter (not being a judgment from which an appeal lies to the Court of Appeal or the Court of Criminal Appeal) may, with the leave of the High Court, appeal from that judgment to the House of Lords.

(2) Provision shall be made by rules of court under Section ninety-nine of the said Act for regulating the procedure and practice to be followed in connection with the grant of leave to appeal under this section, the making of applications for such leave, and the abandonment of such appeals; and such rules may in particular make provision—

1. (a) for enabling the court or judge by whom any such judgment was delivered or by whom leave to appeal under this section is granted to suspend the operation of the judgment pending the making or determination of an application for leave to appeal under this section or pending the determination or abandonment of such an appeal;
2. (b) for enabling any such court or judge to release on bail any person who would otherwise be required to be kept in custody pending the making or determination of such an application or the determination or abandonment of such an appeal, or to enlarge any recognizance entered into for the purposes of the proceedings in which the judgment of the High Court was delivered;
3. (c) for authorising the re-committal or committal in such cases and by such courts or justices as may be prescribed by the rules, of persons who are released on bail, or whose recognizances are enlarged, as aforesaid;
4. (d) in the case of an appeal from a judgment of the High Court on an appeal from a court of quarter sessions, for suspending or modifying the provisions of subsection (4) of Section twenty-five of the Supreme Court of Judicature (Consolidation) Act, 1925 (which relates to the entry at quarter sessions of the judgment of the High Court) so far as may be necessary for the purposes or in consequence of the appeal under this section.

(3) Where any person is admitted to bail in pursuance of rules of court made under this section, the time during which he is at large after being so admitted shall be disregarded in computing the term of any sentence to which he is for the time being subject."

The noble and learned Viscount said: This is a somewhat important clause. The law at present—it is stated in the Supreme Court of Judicature (Consolidation) Act, 1925, but, of course, it has a much longer pedigree—provides that no appeal shall lie (a) except as provided by the Criminal Appeal Act, 1907, or this Act, from any judgment of the High Court in any criminal cause or matter. The words "or this Act" refer to the provisions of Section 29 of the Act, which give a right of appeal to the Court of Appeal (and not to the Court of Criminal Appeal) from a conviction or indictment at Common Law in connection with the non-repair or obstruction of any highway, public bridge or navigable river. Leaving aside the Court of Criminal Appeal, there is no appeal from a criminal cause or matter except in regard to the non-repair of a highway or public bridge or navigable river. Mr. Manningham-Buller, who took a prominent part in the debate in another place, as your Lordships who have read the debates will know, moved a clause to provide for an appeal in a criminal cause and the Attorney-General promised to give consideration to the question in order to cover cases of great legal difficulty and considerable public importance which sometimes come before the Divisional Court.

This clause provides that, with the leave of the Court, and only with leave of the Court—there are no other rights of appeal at all—there may be an appeal. It will apply to judgments of the High Courts in such matters as case stated, certiorari, mandamus, habeas corpus, extradition and cases under the Fugitive Offenders Act. The appeal is to the House of Lords, because the Divisional Court occupies a position which corresponds to and is of the same status as the Court of Criminal Appeal. There is another reason. It is desirable sometimes to go to the House of Lords because it is a Court which has authority over both Scotland and England and in the House of Lords difficulties between the two judicatures can be put right. This is a most important clause. At the present moment, if by order of a Divisional Court, or Judge of a High Court, a man is released on habeas corpus proceedings, there is no appeal. If this clause is passed there will be an appeal in such a case to the House of Lords. That is one illustration of the importance of this clause. It covers other cases of appeal by the Crown.

VISCOUNT SIMON

Against whom?

THE LORD CHANCELLOR

Appeal by the Crown against an order discharging a man will be permissible. Obviously it is an important matter which ought to be considered and there will be cases on case stated, certiorari, mandamus, and so on. For these reasons it was thought undesirable to insert in the clause any stipulation, such as we have in the case of an appeal from the Court of Criminal Appeal, that the Attorney-General can use his fiat. Although in many criminal cases the Crown is a party in a nominal sense, in these cases it may be a party in a much more real sense. It is very undesirable that the Attorney-General should have the right of using a fiat. Leave ought to be given only by the Court. I think we can rely on the Court to give leave only in cases which seem to raise important constitutional questions. That is the genesis of the clause, and on the whole I think it carries out the desire which has been expressed, and that it is a useful piece of legislation. I commend it to your Lordships.

Amendment moved— After Clause 34 insert the said new clause.—(The Lord Chancellor.)

9.41 p.m.

VISCOUNT SIMON

I agree with my noble and learned friend the Lord Chancellor that this is an important matter. I always like to agree with him when he is expounding the law, but the reason why I interposed and asked who would be the person who would appeal in the case he mentioned is that, according to my understanding, it has been laid down quite clearly that the Crown—the prosecutor—is not a "person aggrieved." I have provided myself with one precedent.

THE LORD CHANCELLOR

I gladly accept the correction.

VISCOUNT SIMON

I quote from the case of The Queen v. The Keepers of the Peace and Justices of the County of London, 25 Q.B.D., at p. 361, where the Lord Chief Justice Coleridge, dealing with a Statute which gave power to a "person aggrieved" to appeal, says this: Is a person who cannot succeed in getting a conviction against another a person 'aggrieved'? He may be annoyed…but is he 'aggrieved' because someone is held not to have done wrong? It is difficult to see that the section meant anything of the kind. I speak subject to correction, but I may be confirmed, when I suggest to the Lord Chancellor that a "person aggrieved," in the case of a criminal trial, can mean only the person who is convicted. Therefore this clause will not in fact enable a prosecutor, however much annoyed he may be, to appeal.

There is a second point. The Lord Chancellor gave us some instances of intended application. Again, I suggest this observation—and I think it may be supported. I question whether, when a court grants a writ of habeas corpus, and orders the discharge of the person applying, the court has delivered any "judgment" at all; if that is right, then this clause again does not, in fact, do what the Lord Chancellor suggested.

I should myself, take the greatest objection to the view that, in a criminal cause or matter, once a man has applied for a writ of habeas corpus and has succeeded, and the court has given an order that he is to be freed, the matter can be taken by appeal any further. My noble and learned friend the Lord Chancellor was anxious to avoid technicalities, but it is important to remember this one. In the case of writs of habeas corpus the whole idea is that the man who has succeeded in his application is now and thenceforth free.

There is another kind of case in which habeas corpus comes in; it is not in a criminal cause or matter at all. Suppose that a husband locks up his wife, or that a trustee puts improper restraint upon his ward, the person who complains can apply for a writ of habeas corpus and may obtain one; but in that case, since it is not a criminal cause or matter, there is an appeal. I quite appreciate that my noble and learned friend was speaking generally and without looking the point up precisely.

It must therefore be remembered that it is the principle of our law, and a most precious principle, that once a man has been freed by the order of the court, and becomes again a free man, there cannot be—except in special cases provided for by Statute—an appeal to have him put back in prison. I will content myself with quoting from a very famous predecessor of the Lord Chancellor and myself, who in matters of law everybody regards as a very high authority—namely, Lord Halsbury. What Lord Halsbury said in the well known case of Cox v. Hakes was this: It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last court of appeal. As, on the Lord Chancellor's invitation, I sometimes sit on the final Court of Appeal, I am rather troubled at the idea that is proposed by this new clause, as at present framed, to place on the House of Lords—with, of course, the leave of the High Court—an entirely new form of appeal, which I should have thought conflicted with rather well-established principles. I do not wish to say more. I am contributing only what I can to show the difficulties which I feel. If I am right when I say that it has been held for a long time as beyond dispute that a person who is aggrieved by a decision in a criminal case cannot be the prosecutor (even the Attorney-General is allowed to be "annoyed" if he does not succeed, but that does not mean he is "aggrieved") then this clause does not do what is suggested. If I happen to be right in my belief that writs of habeas corpus are not judgments at all, then this clause appears to me to be doubly faulty.

LORD GODDARD

May I say, first, speaking as Head of the King's Bench Division, that I should have no objection at all to there being some right of appeal from the King's Bench Division? I think it is unfortunate that in many cases, because they come within the words "criminal cause or matter," the judgments should be final and not open to question. In many cases—sometimes cases stated by magistrates—important questions are raised, on which it would be fitting to have the opinion of a higher court. No court worth its salt ever objects to having its judgments placed under review. It welcomes such review because it provides guidance for the future. But, with regard to this clause, I am bound to say that on one particular matter—to which, it so happens, I have given a great deal of attention in the last few months—I am quite convinced that the clause will not achieve that which it is intended to achieve in regard to a large part of the jurisdiction. I share to the full the doubts which my noble and learned friend Lord Simon has just expressed, with regard to the desirability of allowing the discharge of a person under a writ of habeas corpus to be questioned elsewhere. The same applies in the case of a writ of certiorari, which may allow a conviction or any order of an inferior court to be examined and, may be, quashed. That is a matter of policy which, no doubt, has been carefully considered but, of course, it will be a great departure from what has hitherto been the recognised principles of this country: that a prisoner discharged under a writ of habeas corpus is free once and for all.

But what I want to point out to the Lord Chancellor—because I am sure that it has to be most carefully considered—is this. He suggests that this clause will give a right of appeal to the House of Lords in matters relating to what are called the prerogative writs—namely, habeas corpus, mandamus, certiorari and prohibition—provided they relate to "criminal cause or matter," which words are given—and we are told to give—a very wide interpretation. It has been the law ever since the days of Lord Coke that those decisions in the matters of prerogative writs are not judgments. They are said to be mere warrants of the court, and not judgments. It was decided in this House at some time in the reign of George II. I gave my note to the noble and learned Viscount, Lord Simon, this morning, and I cannot give your Lordships the name of the cases. There are two cases, one in the House of Lords, in which it is definitely laid down that error did not lie. There was no appeal in the modern sense until the judicature Act, and with that I think the Lord Chancellor will agree. The only way in which the decision of a superior court could be challenged was by a writ of error. The reason given in two or three cases—which I have net at hand at the moment, but which I shall supply to the Lord Chancellor in due course—why error did not lie, was because there was no judgment in the case of a prerogative writ. It is a highly technical matter, and it is one which I am rather surprised has not been considered by the draftsmen, because I sent my note on the subject to the Attorney-General when I knew that this clause was contemplated.

This matter does require very strong consideration, and far more consideration than has been given to it. Consideration should be given to it not only by the draughtsmen but by others, because it raises points so technical that in these days one rather wonders how it ever came about that the courts gave the decisions they did. But there are the decisions, and they will not be get rid of by this clause. The reason why—if I may tell your Lordships and if it does not bore you to be told of this matter—was this. The case was that of The King v. the Dean and Chapter of St. Patrick's in Ireland in the reign of George II. I should say that in those days the Court of King's Bench in England assumed jurisdiction in error over the King's Bench in Ireland. There came up one of these prerogative writs—I think it was a writ of mandamus on an error—and the Court refused to entertain it because they said there was no judgment. The reason why there was no judgment: was because there were not in the judgment the words idio consulium est. There was no judgment and there never is a judgment, so they said, in those cases. Therefore, I say that if it is desired to give power to challenge these, writs, a great deal more thought, inquiry and research needs to be given to the matter than has been given. I will gladly supply to the Lord Chancellor the note I prepared on this subject, because, as I say, it is extremely technical. Unless one goes very deeply into these matters one would not readily understand it. But, of course, the more serious point is whether you are to allow an appeal in the case of habeas corpus. I confess that my mind wavers a little for this reason: it would not only enable the Crown to appeal but it would the prisoner to appeal.

THE LORD CHANCELLOR

Not the Crown.

LORD GODDARD

I thought that was the whole object.

VISCOUNT SIMON

What is the noble Lord's view of the words "any person aggrieved"? Does it, in his view, include the Crown?

LORD GODDARD

I quite agree that as it stands at the present time it does not give the Crown a hope. But my point was that I thought the object of the clause was to give this appeal. The matter is a highly technical one with which I felt obliged to trouble your Lordships. If it is desired to give an appeal, I dare say the difficulties could be got over by skilful drafting. This would also enable the subject to have an appeal if he was either refused his writ or was remanded. At present the position is that if a person applies in term time for a writ to the High Court and it is refused, he can go to every Judge and see if he can find one to grant it. That was laid down in a judgment which the noble Viscount, Lord Hailsham, gave in a case relating to the Government of Nigeria—an interesting and instructive case. I never thought that it was a very hopeful proceeding. But one thing is quite certain and that is that in the old days a man who applied to the Court of King's Bench and was refused could try the court of Common Pleas, and if he did not succeed in the Court of Common Pleas he could still go to the Exchequer.

Under this provision, if an appeal did lie one of two things could happen. The man who was refused his writ of habeas corpus or was remanded and sent back to prison could still, when the writ was argued, go from judge to Judge; or he could apply for leave to appeal to your Lordships' House. That might be desirable; I am not sure that it would not be. There was a recent case during the war in which a man, a Dutch subject, who was arrested for failing to report to the Dutch Army, to which he was liable to report under the Visiting Forces Act in this country, applied for habeas corpus and was refused by the Divisional Court. He sought to appeal to the Court of Appeal. I happened to be a member of the Court of Appeal in those days and was sitting on the Appeal. We refused to entertain the appeal because of this section in the Judicature Act. It seems to me a matter of high policy.

VISCOUNT SIMON

It came to the House of Lords.

LORD GODDARD

I had forgotten that the case went on appeal to the House of Lords; but my judgments have been upheld sometimes. It seems to me that it is a matter of high policy and it requires the most careful consideration as to whether, in this high prerogative writ, which is the greatest protection of the subject in the world, it is desirable that where a court has thought that the prisoner was wrongfully in custody he should be subject of appeal. I think there is much to be said for that point on both sides. I call the attention of the noble Lord in charge of this Bill to the other difficulties.

THE LORD CHANCELLOR

Let me hurriedly withdraw this clause before I receive any more lectures on the law! I am inclined to think that I have done what I could to meet Mr. Manningham-Buller's desire. I will look into this clause between now and Report to see if I can improve on it. The noble Viscount, Lord Simon, has shown that he has infinitely greater knowledge of the law than I have——

VISCOUNT SIMON

On this particular point.

THE LORD CHANCELLOR

I have not had the benefit of the Lord Chief Justice's note since this morning. I dare say that had I been able to give this matter approximately the amount of time which the noble and learned Viscount has given to it, I also might have scored many points. My only desire was to introduce a clause which might have been of some practical utility. However, if it is of no practical utility, I will not put it down again.

LORD GODDARD

On that point.

THE LORD CHANCELLOR

If, on the other hand, I think it is of some practical utility, I shall put it down in an amended form. Although I have not looked it up, or considered it for many years, I had thought that since 1938 there had been a change in these prerogative writs: that whereas up to that time they were merely writs, since that date they were orders. I had thought that that was so. I thought that it had made a fundamental difference. I have not looked at this matter for several years, and certainly during the recent few days or weeks I have not gone into this matter in detail. I will withdraw the clause now and consider whether I shall put it down again in an amended form on Report stage.

Amendment, by leave, withdrawn.

LORD MERTHYR moved, after Clause 34, to insert the following new clause:

".—(1) If upon the hearing of any information in a court of summary jurisdiction the court has adjudged that the case against the defendant has been proved, the court may be informed before it proceeds to pass sentence and notwithstanding the fact that the defendant has failed to appear to answer the said information and provided that the provisions of subsections (2) and (3) of this section have been complied with of any previous occasions upon which the defendant has been convicted or upon which a case against the defendant has been found proved, and it shall not be necessary for such conviction or finding or the identity of the defendant to be otherwise formally proved.

(2) A notice in writing, stating the intention to inform the court of such previous convictions or findings shall be served upon the defendant not less than five days before the hearing of the case.

(3) The notice shall contain a list of all the convictions or findings of which it is intended to inform the court and shall be served with or in the same manner as the summons issued upon free said information or by being sent by registered letter to the defendant at the address given upon that summons."

The noble Lord said: This Amendment is designed to deal with a situation that must be extremely common in every court of summary jurisdiction. In fact, I would say that there must be many thousands of cases every year in which the court is dealing with charges of a comparatively minor character against an accused man who is not present in court, and where it obviously would be quite unreasonable to insist upon his presence. He might be at the other end of the country. In suitable cases the charge could be heard in his absence. He is convicted, and then comes the question of whether he has had a record of previous convictions or otherwise. According to my information, the law is that whilst a court may ask whether he has been previously convicted and be told "Yes" or "No," is it improper and contrary to law for a list of the previous convictions to be read out to the court if he is not there and unless those previous convictions are strictly and formally proved. The strict and formal proof of convictions may be a cumbersome, lengthy and possibly an expensive business, because it would strictly be necessary either to call evidence from some witness who was present in court when the man was convicted or take various other means to prove the convictions.

I think that that is an unsatisfactory situation. The result of it is that either a court is obliged to do without the record of previous convictions or, being told of it, they must ignore the fact that he has been convicted. Then the situation is that merely by his absence from the court, which may have been intentional and meant for that very purpose, either the man in escapes the disclosure of his previous record or the case has to be adjourned for his attendance (which may be extremely inconvenient and expensive), or for the attendance of some witness who can formally prove the convictions. That is a difficulty which I believe is sometimes overcome by devious means, which I think are strictly illegal. I may be wrong and, if I am, I shall be glad to be corrected. The proposition contained in this Amendment is that in these cases there shall be no insistence upon the attendance of the defendant, if he does not want to come, but that if he chooses to remain absent his previous record may be read out to the court. I am quite certain that mistakes have been made in this matter. I heard of a case where the record of a father was read out in court when the son was being tried and had been convicted. That was a genuine mistake though, of course, the names were the same; but that sort of thing does happen and may have unfortunate results.

To safeguard against such a mistake it is proposed that a list of the previous convictions which it is proposed to read should be sent beforehand to the defendant, who will therefore be acquainted with the fact that if he is convicted that record will be read out. And he will thus have an opportunity of attending or of writing to the court and saying (if it be the fact), that it is wrong. I think that the House will agree that if a man stays away from a court merely in order to rid himself of the consequences of his previous record, it is most undesirable. I am satisfied that that does sometimes happen and I have, therefore, put down this Amendment. I am aware that it is a rather lengthily worded Amendment, which I dare say could be improved upon. Indeed, suggestions have already been made to me with that intention in view. Before I go into that matter, however, I would like to move the Amendment to see whether it finds favour in any part of the House. I beg to move.

Amendment moved— Page 38, line 18, at end insert the said new clause.—(Lord Merthyr.)

LORD RAGLAN

I think this whole question of trial in the absence of the defendant is one which requires very careful attention. In the small petty sessional court over which I have for many years presided, I have always made it a rule never to proceed to the trial of anybody unless he is present or represented, or has written to the court clearly admitting his guilt. I understand that there are courts which proceed to conviction upon proof of service; but several cases have come to my notice in which that has caused a serious injustice. During the war, for instance, there were many long-distance lorry drivers who were driving about the country from place to place and were often absent from home for many weeks. If at the beginning of his tour such a man did something which led to a charge, what happened was that the summons was served upon his wife, who perhaps did not know where he was; and, when the man got home, he found that the day of the hearing had already passed—and this although he may have had a perfectly good defence; for instance, he may have left his driving licence in another coat. I think that in the matter of previous convictions the danger of injustice is small, but mistakes do sometimes occur, and I do not think it is safe to assume anything merely because a person does not reply within five days.

THE LORD CHANCELLOR

I feel with the noble Lord who has just spoken. I do not very much like this clause. I think there are dangers about. Of course, I agree that it is only the odd case where the man stays away in order that his convictions may not be proved against him, although it does happen. On the other hand, the great majority of these cases where the defendant is absent are not very serious cases. I do not much like the idea of convictions being proved in this somewhat lax way. After all, notice of the previous convictions would be served like a summons—that is, by leaving it or sending it by post to the last known address of the defendant. If it is sent by post it may be opened by a servant or by a friend of the defendant, or by someone else, and there is very real doubt whether the man himself would ever get it. The clause, as drafted, is further defective—I point this out to the noble Lord; he can easily put it right, if he desires to do so, at a later stage—in that it does not deal with what is to happen if the man, on receiving notice of previous convictions, writes to say that that notice is untrue. The clause does not deal with that, and, obviously, it is a matter that ought to be dealt with.

Frankly, I am not in favour of the clause as a whole. If you are dealing with a motoring offence, or something similar, is it necessary to bring it up against a man that when he was sixteen or seventeen years of age he was convicted, say, of stealing apples? I would not mind so much if the previous offences which were brought up were confined to offences of the same class as that being investigated by the court. But I also feel that there is a real danger about this because, as the noble Lord himself has said, police records are not so perfect that mistakes do not occur—it may be through similarity of names and causes of that sort. So I do not really think it is safe to rely on notice being given to a man—given it may be in this rather indirect sort of way so that it may never, in fact, be brought to his attention at all—that reliance is to be placed on those previous convictions. On the whole, I think this innovation would be dangerous, though in some cases it would be useful in preventing abuses. Perhaps, between now and the Report stage, the noble Lord would like to consider what I have said, and put his Amendment in more correct shape. But I must warn him that, even if he does, on the general principle I should not be in favour of such a clause.

LORD CROMWELL

May I ask the noble and learned Viscount the Lord Chancellor whether it is not a fact that, in practice, the police ask for a remand where it is clear that a man has not attended the court for the particular reason to which Lord Merthyr has alluded.

THE LORD CHANCELLOR

Yes, I believe that is so.

LORD LLEWELLIN

I have known cases where that request has been made and, in my experience, the court has always granted it. So the few exceptional cases which the noble Lord has in mind can easily be met.

LORD MERTHYR

I would like to say one or two words more about this if I may. The noble and learned Viscount has dwelt upon the dangers of this suggested method of procedure. I think the present dangers are greater. I think it is a fact that many courts—by no means all of them; I would not say even the majority, but certainly a good many—ignore the law in this matter and do, in fact, take account of previous convictions which are read out. I myself have seen it happen many times. That surely is a greater danger. And the temptation to do that is considerable. It is to avoid that very occurrence that I have put down this Amendment, and, whilst I quite see his point, I can assure the noble and learned Viscount that it was to make the position more correct and safer that I put down this Amendment. The noble and learned Viscount suggested that in the case of a motorist who had been fined for something trivial years before it would be unfair to drag in his previous conviction. I entirely agree. It is quite wrong to take any account of his previous conviction, but there is little harm in hearing about it.

I would like to put this to the Committee. Suppose that a case came before a court in which a man was charged with failing to take out a dog licence—and I am thinking of a particular case which did actually occur. That in itself is a trivial matter, but when it turns out that this man never takes out a dog licence and has been previously convicted eight times in as many years, surely that makes a considerable difference to the penalty which ought to be imposed. It is of that sort of case I am thinking when I suggest that the court should have the previous record of the accused person. It is true, as the noble Lord, Lord Llewellin, pointed out, that the prosecution can formally appeal for adjournment in order to prove previous convictions, but they do not do it in a vast number of cases where a man's previous record would be most valuable to the court. At present, I am satisfied that in many cases the law is not being carried out, but in view of what has been said, I shall not press this Amendment this evening, I would like to consider it further. I am grateful for the suggestion, and I may put the Amendment down at a later stage in a better form. Meanwhile, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

10.17 p.m.

LORD LLEWELLIN moved to insert the following new clause:

Duty to give notice of additional counts in indictment.

".It shall be the duty of the prosecution to supply to the accused person a copy of so much of an indictment as contains counts additional to or in substitution for the charges upon which such accused person was committed for trial and such copy shall be supplied free of charge at the time at which tine accused person is notified of any evidence which it is proposed to adduce at the trial additional to that contained in the depositions."

The noble Lord said: This is a simple, but in some ways important, Amendment. It is nothing new. For many years a defendant has not been given a copy of any new counts that were to be proved against him. He knows what is in the summons in the original court, but when he comes up before the Assizes or Quarter Sessions there may well be additional evidence supplied. Additional evidence has to be served on him or witnesses cannot be brought to court. Additional counts often arise from that additional evidence, and what happens in practice is that unless he is defended he hears of the additional counts only when they are read to him by the clerk when he comes into the dock to be arraigned. He has never heard them before. They are read out to him, and on the spur of the moment he may plead guilty to the charges. Where a man is defended, generally his counsel has a word with the counsel for the prosecution and asks what additional counts are being preferred. In 999 cases out of 1,000 the prosecuting counsel will tell him what they are. I think the defendant ought to be given a copy of additional counts, not only for the benefit of the accused, who ought to have a prior notice of what is to be charged against him, but because often a man would plead guilty to a new count if he had time to think it over. When it is sprung upon him, he hesitates, and naturally the clerk thinks that it is a plea of not guilty. In every case where additional evidence is served upon a prisoner, he ought at the same time to be told what additional counts are to be preferred against him. I beg to move.

Amendment moved— Page 38, line 18, at end insert the said clause.—(Lord Llewellin.)

THE LORD CHANCELLOR

It appears to me that this matter might well be dealt with under the Indictments Act, 1915, under which there is power to make rules, and a rule of this sort could be made. One of the rules—Rule 13—lays down the duty of the Clerk of Assize, when a Bill of Indictment has been prepared and signed, to give the applicant a copy of the indictment free of charge. I think that the Rules Committee under the Indictments Act could deal with it. The noble Lord, Lord Llewellin, is familiar with this matter, but for the benefit of those who are not so familiar I should like to say that it is wrong to suppose that new counts can be added only where there is additional evidence, and, secondly, it is wrong to assume that the prosecution is responsible for the framing of these indictments. Unless the consent of a High Court Judge or Commissioner of Assize has been obtained, the new counts must be founded on the evidence given in the depositions. In the great majority of cases the indictment is drafted by the Clerk of the Peace or the Clerk of Assize; but, whether or not the indictment is drafted by the prosecution, it is finally settled and signed by the Clerk, and it would be of no use for the prosecution to supply a copy of the indictment unless and until the Clerk had approved it. Therefore I do not think that the proposed new clause would be a means of meeting the difficulty and, as I said before, this is a matter which might well be taken into consideration by the Rules Committee under the Indictments Act, 1915.

LORD LLEWELLIN

I am much obliged to the noble and learned Viscount, the Lord Chancellor. This is rather a problem, and it is one which has to be met. It think it would be far better if it were met by the Rules Committee, and, of course, we have no control over them here. But I did see the difficulty of putting the duty on the Clerk of Assize, because the Clerk of Assize was said in another place not to have the staff to do this work. I am well aware that he or the Clerk of Quarter Sessions is the man who is finally responsible for settling the indictment. I think that in a matter of this kind we ought to try to clear up the difficulty. I believe that in some cases the time of the court is wasted when a man pleads "Not guilty" when he would otherwise perhaps, if he had understood it, have pleaded "Guilty" Certainly, if this is done the presiding Judge or Chairman ought always to adjourn the case to give the man sufficient time to know of what he was accused before the trial starts. But I am quite content to withdraw my Amendment on the understanding that this kind of case will be dealt with, if possible, by the Rules Committee.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Clause 36 [Taking of finger-prints by order of justices]:

LORD CHORLEY

This Amendment is really a drafting Amendment. Subsection (4) was accepted on the motion of a Member in another place, but it was necessary to put it into rather better form, and this Amendment has been put down to achieve that object. I beg to move.

Amendment moved—

Page 39, line 23, leave out subsection (4) and insert: (4) Where the fingerprints of any person have been taken in pursuance of an order made under this section, then if that person is acquitted or discharged under Section twenty-five of the Indictable Offences Act, 1848, or if the information against him is dismissed, the fingerprints and all copies and records thereof shall be destroyed.

VISCOUNT TEMPLEWOOD

There is one question which I should like to ask the noble Lord. What happens in the case of a probation order? Supposing finger prints are taken and the probationer makes good, that is not an acquittal or a dismissal. Am I right in assuming that the finger prints would be destroyed? They certainly ought to be.

LORD CHORLEY

I am afraid I cannot answer that off-hand, but I will have inquiries made and let the noble Viscount have the information. If the Committee as a whole would like it, I will make a statement at a later stage.

VISCOUNT TEMPLEWOOD

I am surely right in assuming that if they are to be destroyed in the case of an acquittal, they ought equally to be destroyed in the case of a probation order.

LORD CHORLEY

That would certainly appear to follow, but I have not been authorised to make any statement. I think it would be better if I make inquiries and procure the information for which the noble Viscount has asked.

On Question, Amendment agreed to.

Clause 36, as amended, agreed to.

Clauses 37 to 39 agreed to.

Clause 40 [Payment of costs of defence on acquittal, etc.]:

LORD CHORLEY moved, after subsection (4) to 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 may be 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 noble Lord said: This Amendment is consequential on the new clause which your Lordships accepted giving power to the Court of Criminal Appeal to order a new trial.

The precise form of that new clause has been remitted to the Report stage, as your Lordships remember. This clause makes the necessary provision to include among the costs of the defence, which may under Clause 40 be awarded by a court on acquittal, the costs incurred by the defendant before the Court of Criminal Appeal—or, possibly, before the House of Lords, if the case goes so far—if, eventually, as a result of the appeal, he is acquitted on a re-trial. I beg to move.

Amendment moved— Page 42, line 18, at end insert the said subsection.—(Lord Chorley.)

On Question, Amendment agreed to.

LORD GODDARD moved, after subsection (6) to insert as a new subsection: (7) The Court of Criminal Appeal may when they dismiss an appeal or an application for leave to appeal order the appellant or applicant as the case may be to pay the whole or any part of the costs of the appeal or application. The noble and learned Lord said: Clause 40 introduces an entirely novel principle, to which I do not think there can be any real objection. For the first time it enables the court to make an order providing that the defendant, if he is successful, should have his costs paid out of local funds. It seems to me that there is no objection to that in principle, because nowadays, under the Poor Prisoners' Defence Act, nearly every prisoner, if necessary—and certainly if he is contesting and has not the means—is provided with counsel and solicitors, who are paid out of the county funds. Clause 40, as see it, will merely enable what is generally called a dives prisoner—namely, a prisoner who has the means of defending himself—to obtain his costs out of the county funds in the same way as a poor prisoner has his costs paid from the county funds.

No doubt your Lordships will agree that that may be a desirable change in the law, but at the present time, as I told your Lordships earlier this evening, many cases in the Court of Criminal Appeal are absolutely frivolous appeals. Therefore, I want, by this Amendment, to give the Court of Criminal Appeal power to order an unsuccessful applicant to the court to pay the costs. Of course, in the great majority of cases the court would not do so, because it would not be of the least use. But with these receivers and black market offenders, with hundreds of thousands of pounds, who have been making that money out of their crimes, it does seem to me absurd that when they put the country to the expense of a transcript of the shorthand notes—as I say, often running to 200 or 300 pages, and which is supplied free—they should not, in cases which are dismissed, pay something towards the cost of the transcript of the shorthand notes. That would give some of these gentry reason to think before they brought these frivolous appeals, at no cost to themselves, and where the court cannot now make an order for costs.

I ask your Lordships to accept this subsection which will give power to make an order for costs. There is power in a court of first instance, and sometimes, when such a court has well-to-do defendants, appearing before it, they are ordered, in addition to the other penalty, to pay £50 or £100, or whatever it may be, towards the cost of the prosecution. That is what I ask for here. The court would never do it in the case of the ordinary sneak thief or a person of limited means, because there would be no object in doing so. It would not be done except in a few cases. It seems to me in all common sense that we should have the same power when the defendants enter these frivolous appeals. I beg to move.

Amendment moved— Page 42, line 35, at end insert the said subsection.—(Lord Goddard.)

THE LORD CHANCELLOR

It was suggested to me that before accepting this Amendment I should ascertain what was the general feeling of the Committee. I looked anxiously around to see who was going to get up next, and no one rose. Therefore, I hope that if I sit down your Lordships will let me know the general feeling of the Committee, so that in accordance with my instructions I may accept or reject the Amendment.

LORD SCHUSTER

At half past ten in the evening one is rather averse to expressing any more opinions than one can help. I had hoped that the eminently reasonable nature of the Amendment would require no remarks from me.

VISCOUNT SWINTON

If a mere layman may intervene, and come quite fresh to this, I must say that the reasoning of the Lord Chief Justice appears to make extremely good sense. One leaves this right to the Court of Criminal Appeal with complete confidence. Here is not a case where one would run any risk against a man's interests. Obviously, the matter could not be in better hands, and nobody would suffer who ought not to suffer. I cannot see why a very rich criminal should cost the country a great deal more for any appeal.

LORD OAKSEY

I will say only that I strongly support the Amendment.

THE LORD CHANCELLOR

Under those circumstances, I think I shall be carrying out my instructions if I accept this Amendment.

On Question, Amendment agreed to.

LORD CHORLEY

This Amendment is consequential. I beg to move.

Amendment moved— Page 42, line 37, at end insert ("and references in any enactment (including any enactment in this Act) to costs payable under the Costs in Criminal Cases Act, 1908, shall be construed as including references to costs payable by virtue of the provisions of this section").—(Lord Chorley.)

On Question, Amendment agreed to.

Clause 40, as amended, agreed to.

LORD SALTOUN moved, after Clause 40 to insert the following new clause:

Compensation for victims of robbery with violence.

". Where any person by reason of any assault or personal violence upon him by any person is unable to carry out his normal business or household or other duties, and such person makes an application under this section to the Court of Summary Judisdiction acting for the place in which he resides, there may be paid to him out of local funds within the meaning of the Costs in Criminal Cases Act, 1908, such sum by way of compensation as will re-imburse him for any expenses reasonably incurred by him in making arrangements for the duties normally carried out by him to be provided by some other person on his behalf; and where such assault or personal violence results in permanent injury or disablement such sum shall be so paid to him as the Secretary of State may in all the circumstances consider reasonable."

The noble Lord said: The Amendment on the Marshalled List needs one alteration, in the small note at the side. It refers only to compensation for victims of violence and it was not my intention to annex the word "robbery" to this Amendment. We have had forty clauses, all dealing with the criminal and all discussing the best way to treat him. I think it is quite right that I should suggest that we should have one clause, at least, in the Bill about his victim. It is the more necessary because we have to remember that we may be persuaded to put back Clause 1 and accept Clause 3, and though this would add to the importance of my proposal, I shall not be able to urge it again upon your Lordships.

If one goes back 150 years in this country one finds that every man was expected to be able to defend himself—and he was generally ready to do so. Your Lordships will recall the familiar cry "Who goes home?" when they disperse in another place, which will remind your Lordships that honourable Members and noble Lords were always ready to defend themselves. The establishment of the London Police Force altered that situation. The Police Force, by their extreme efficiency, produced such a state of affairs that that readiness for self-defence was no longer necessary. But to-day we are short of police. We cannot get recruits for the Force, we have no accommodation for its members, and recruiting is bad. I submit that one advantage of the clause that I am suggesting is that it will in the first place make the Police authorities careful to use the force of Police which they have for the most important duties, and to concentrate their efforts on dealing with crimes of violence. That is the more important because the right of self-defence is not so strong as it was 150 years ago. As a matter of fact, I have seen it stated by a magistrate in a court that people ought not to defend themselves from assault but that they should send for the police. I noted that with considerable regret. At any rate, there is a general sense in the population that they do not receive the protection to which they are entitled. One finds on turning to the history of punishment that it started with the idea of compensation. It is only later that the idea of punishment as such came in. Now, in this Bill, the one thing that we have before us is the idea of reform; compensation and punishment have gone by the board, and with them the old principle that damage that has been wantonly done must be made good.

I will give your Lordships one kind of case I have in mind. I had a letter a few days ago from a man whose wife and daughter were held up in the hall of their home by two men armed with pistols. The man was old. They came into his room, threatened him with a pistol, and demanded money. He saw a chance of making a fight of it, and he and his wife and his thirteen year old daughter did make a fight. They were all badly damaged but, owing to what they did, the villains were apprehended. One of these men was most indignant. He said that if the man had only given him the money, there would have been none of this trouble and he would not have been injured. The unfortunate man reckoned up that he is considerably the loser by the services he has done for the community. He had only £32 in the house but he has lost more than that by his action. He has suffered damage, he has had to pay doctors' bills and extra expenses and he is considerably the loser by reason of the services which he rendered to the community.

When I left your Lordships' House the other night, the porter who took my bag at the station told me that one of his neighbours had been called to the door of her house, she had been knocked on the head, the house had been robbed and she was still in hospital. There she is in hospital, and who is to look after her house? She has to pay somebody to take on that duty. But there is an even more serious kind of case: that is, those horrible cases of concerted rape such as the noble and learned Viscount on the Woolsack told us about a year or two ago. In those cases it is not only the act itself. I expect that most of your Lordships know as well as I do that very often there is tremendous physical damage done at the same time—broken ribs, ruptured kidneys and things like that. Such unfortunate people certainly deserve some compensation as well as consideration because, if people do not obtain from the country the protection to which they are entitled, then they will try to get it in another way.

This Bill contains a great deal that everybody welcomes, I know, but I humbly submit to your Lordships that it removes many of what expert witnesses have told your Lordships are deterrents to crime. We have been told, but I can hardly believe it, that our learned Judges do not study penology; whether they do or not I maintain that they are expert witnesses of whose testimony the Government should take some account. If we are to carry out an experiment of this kind in the teeth of such testimony, I do not think that we should do it entirely at the risk of the people who are entrusted to the care of the Government. If this Amendment is agreed to, think it will go a great way towards satisfying the people of this country that in the Bill they have not been entirely disregarded in the matter by the Government. I beg to move.

Amendment moved— After Clause 40, insert the said new clause.—(Lord Saltoun.)

LORD CHORLEY

I regret that I cannot accept the noble Lord's Amendment. Your Lordships will obviously have the greatest sympathy with the unfortunate victims of the outrages to which the noble Lord has referred, as of course your Lordships would have with anybody who suffered injury in the various hazards of life. But it is really not possible for the State to undertake the burden of compensating people for all the damage and suffering from one sort of cause or another which occur to them as they go through life. Obviously, if this particular avenue were opened up, it would lead to an astonishing range of insurance, covering almost anything that could happen to anybody. Apart from that, there are a number of technical difficulties in the way of the noble Lord's Amendment which make it, I think, quite impracticable. In the first place, a court of summary jurisdiction is obviously not at all the appropriate court for dealing with a problem of this kind. The noble Lord provides for compensation in respect of getting assistance. Apart from the case at the end, where he puts upon the Secretary of State the duty of assessing the sort of compensation which ought to be given in respect of permanent injury, he limits it to the one case. That, I am quite sure your Lordships would agree, is a quite impossible and impracticable suggestion. Therefore I think your Lordships will agree that this Amendment cannot be accepted.

VISCOUNT TEMPLEWOOD

I agree with the noble Lord in that his criticisms against the drafting of this clause are valid. At the same time, I cannot help saying that I do feel—and I have often expressed my view upon the subject—that we ought to reconsider the whole question of compensation. I feel there are many cases in which an offender ought to pay much more compensation than he at present does. I will not argue this general question now, upon this Amendment, but I have noticed many cases recently in which the defendant was a young man of means who might well have been called upon to pay a considerable sum in compensation to his victim. I have also felt (although I do not go so far as does Lord Saltoun in this clause) that there are more cases in which the State should pay compensation. I have in mind particularly the type of case that has been mentioned more than once in this discussion—namely, of escapes from Borstal. The State is responsible for keeping these young men under control, and I think there is a good argument to be made where, as a result of the methods we employ—methods that I believe are good upon the whole—these young men escape and rob the neighbourhood. There, I think, there is a strong case for the State to pay compensation. I do not press these general considerations upon this particular Amendment, although I feel it is necessary to make this reservation before we part with this clause. As to the Amendment, I think the objections against it are valid, but I think we ought in future to reconsider the whole question of compensation to the victims.

LORD OAKSEY

I entirely agree with what has fallen from my noble friend Lord Templewood. It seems to me that it is no great hardship upon the State, in the case of damage which has been inflicted upon a private individual by a convicted criminal, that it should pay some compensation. I will not say anything more. I think there may be difficulties about the wording of the Amendment, but I do think that the subject deserves close consideration by the Government.

LORD RAGLAN

I think I can reassure the noble Viscount upon this point. Although the Government assume no liability for absconders from Borstal they do pay compensation in appropriate cases.

LORD SCHUSTER

It depends what is meant by "appropriate cases" I know plenty of cases where damage has been done, and I suppose they have not been very "appropriate"; but that is hardly the view taken by the man whose shop has been broken into and whose stock has been ruined.

LORD CHORLEY

May I just say that the Prison Commissioners have authority, in a proper case, where damage is done by lads escaping from Borstal, and where they injure people, to make compensation payments? And that is not infrequently done.

LORD SALTOUN

I am grateful to my noble friends for the support they have given to this Amendment, and I hope that its principles, in some form, will receive the serious attention of the Government. I would remind the Committee that self-defence was originally a private matter, and it is certainly not desirable, at this time of day, that people should again form associations to defend themselves and to take over duties which have now been undertaken by the State. I should like, if possible, to have a word in private upon one side of this question as there is something relating to it, which I do not wish to put before the Committee now, in reinforcement of what I have to say about this matter. As the Amendment is defective in form, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Clause 42 [Approved probation hostels and homes]:

VISCOUNT SAMUEL moved, in subsection (2), to omit all words after "provide," and insert: for consultation with the Secretary of State as to applicants for appointment to the charge of an approved probation hostel or home and empower the Secretary of State to prohibit the appointment of any particular applicant therefore except in the case (if any) in which the regulations dispense with such consultation by reason that the person to be appointed possesses such qualifications as may be prescribed by the regulations.

The noble Viscount said: On behalf of my noble friend Lord Reading, I beg to move this Amendment which deals with a minor point and which, I think, need occupy your Lordships for only a very few minutes. Clause 42 provides for the approval of premises as probation hostels and homes. Among the voluntary organisations which manage such institutions are the Salvation Army, and the Salvation Army have made the suggestion that the clause should be amended as proposed in this Amendment. The Salvation Army now have eight probation hostels and homes, and plans are in hand for considerable further developments. The officers in charge of those homes are experienced people who are specially trained for the work. As Clause 42 now stands, the Salvation Army think it will require them to obtain consent from the Home Secretary for all changes in the appointments held by these officers. Those changes are frequent. They may arise through individual circumstances—questions of health, home circumstances, or extensions of work. Or they may be made in pursuance of a policy which the Salvation Army have adopted of changing officers from one place to another in order that they may gain wider experience and not grow stale in one particular centre.

The Salvation Army submit that to require the approval of the Home Secretary before any such change is made is really an unnecessary interference in the internal administration of the system. If any unsuitable person were, in fact, to be appointed, the Home Secretary has power to require his removal or, in an extreme case, to withdraw approval of the home or hostel. That is the sole matter raised by this Amendment. It may be pointed out that the form of the Amendment follows the model in Clause 15 of the Children's Bill. In the opinion of the Salvation Army, it will allow a reasonable latitude in administration without causing undue complexity and delay, while, at the same time, it will retain proper control in the hands of the Home Secretary. If there are any defects in the drafting of the Amendment, I need hardly say that we will gladly accept any alteration which may be suggested by the Government. I beg to move.

Amendment moved— Page 43, line 35, leave out from ("provide") to the end of line 37, and insert the said new words.—(Viscount Samuel.)

THE LORD CHANCELLOR

Without committing myself now to acceptance, I think that I may be able to go some way to meet the noble Marquess. I shall be glad to discuss the matter with Lord Reading, and if he sees me and those advising me I think that we shall probably be able to agree on some form of words which will give him what he wants. But I could not accept this Amendment in its present form. Particularly I do not at all like the provision that the mere fact that a man possesses certain qualifications shall in itself dispense with the Home Secretary's approval. On the other hand, I quite understand that there may be frequent changes among a small group of people, and it may be possible to evolve some way of meeting that point. Without making a definite promise, I would ask the noble Viscount to withdraw the Amendment, on the understanding that I will have a discussion between now and Report stage with the noble Marquess, Lord Reading, and with the noble Viscount, if he will come, to see if we can agree to some form of words which will give the noble Marquess the substance of what he wants.

VISCOUNT SAMUEL

I am grateful for the sympathetic reception which the noble and learned Viscount the Lord Chancellor has given to my noble friend's Amendment, and on that assurance I now ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 42 agreed to.

Clause 43 agreed to.

House resumed.