§ 4.6 p.m.
§ LORD GODDARD rose to call attention to the recent case of R. v. Devlin and Burns for murder; and to consider how far the necessity for extra-judicial inquiries after conviction and dismissal of an appeal would be obviated if the Court of Criminal Appeal had power to order a new trial and to move for Papers. The noble and learned Lord said: My Lords, when the Criminal Justice Bill (now the Criminal Justice Act of 1948) was in Committee in this House, I moved, and your Lordships accepted, an Amendment which would have given the Court of Criminal Appeal power, in a proper case, to order a new trial. That power, I know, was designedly left out of the Act setting up the Court of Criminal Appeal, as was stated by Lord Loreburn, who was the Lord Chancellor at the time the Bill was introduced. But, of course, the Court of Criminal Appeal Act was a great and novel experiment, and only time could show how it would work. In fact, from the very early days in the history of the Act, as early indeed as the first year, 1909, when the Act was brought into force, the then Chief Justice, Lord Alverstone, expressed his feeling that the Court ought to be given power to order a new trial. That, I believe, has been the expressed opinion of every Chief Justice who has been President of the Court, as every Chief Justice has from that time, and also of many Judges of great experience in these matters, such as the late Mr. Justice Avory and Sir Travers Humphreys, whom I am glad I do not have to refer to as "the late."
§ The Act has certainly justified itself—at least, I think few would deny that—but one reason why people have been nervous about any idea of giving the Court power to grant a new trial is that there seems to 746 be some idea that that would enable the Crown to order a new trial against a man who had been previously acquitted. That is entirely wrong, and if your Lordships accepted this Motion, or if Parliament gave the Court power to order a new trial, it would not for a single minute enable a man who had previously been acquitted to be tried over again. Only a man who has been convicted can appeal to the Court of Criminal Appeal. We have no jurisdiction whatever over persons who have been acquitted. It is only when a person has been convicted and has appealed to the Court of Criminal Appeal that this question of granting a new trial could arise. Your Lordships will see, therefore, that the power to order a new trial would at least give a man a second chance of being acquitted.
§ At present, the Court can only quash the conviction or dismiss the appeal. The Amendment which I moved when we were discussing the Criminal Justice Bill met with considerable opposition, both here and elsewhere. My late friend, Lord du Parcq, made a very impressive speech against it, and so did the noble and learned Viscount, Lord Simon, to whose arguments I naturally pay the greatest attention. I hardly like to differ from him, as I have for him all the feeling that a pupil has for his master, for he was my earliest master in the law. Still, I may say this, possibly as some excuse for differing from my master: that I have now had a good many years' experience of the working of this Court, first as a puisne Judge and, secondly, since I have been Chief Justice. That is an advantage which I have had over my noble and learned friend. In passing, I would say that the Amendment which your Lordships accepted did not find favour elsewhere, and I did not press the matter again when the Bill came back to this House because, if we had differed on this point, of course the Bill would have been lost.
§ But I now want to ask your Lordships to consider whether recent events have not shown that it is desirable that the whole question should be reconsidered. As the terms of my Motion show, I am going to call attention to a recent murder case that was tried in February at Liverpool and came before the Court of Criminal Appeal in March. I want to emphasise as strongly as I can at the outset that I am not going to utter a word of criticism against the action which the Secretary 747 of State took in relation to that case. I recognise that he had to make inquiries and that probably he had no other course open to him than that which he took, to which I will refer in more detail in a moment. What I want to ask your Lordships to consider is whether it is right that he should have to take the course that he did, and whether it would not be far better to confer upon the Court the power for which I am asking. Though it would not altogether obviate the necessity of some inquiry by the Home Secretary in proper cases, it would make a great difference and do away with what I venture to think is, in the end, an unfortunate procedure.
§ To indicate the points that I wish to emphasise, let me give you a brief account of the case. On August 19, which was a Sunday, an elderly woman living alone in a decent street in Liverpool was brutally murdered. The house had been entered and it was obvious that the reason for murder was theft. A considerable interval elapsed before the police were able to get enough evidence to arrest anyone. Early in October they arrested two men who have since paid the penalty for their crime—a man named Devlin and a man named Burns. I suppose I need hardly say that both of them were quite young, for it is the rarest thing at Assizes nowadays to find any criminals over thirty; they are generally between twenty-two and thirty. One of these men was. I think, twenty-one and was "on the run" from Borstal, and the other was a man of twenty-two.
§ The evidence called for the prosecution consisted first of the evidence of a man named McLoughlin who, like these other two young men was a professional criminal. His evidence was that he had been approached by these two men to break into this house. where, they said, there lived an old woman who they believed had money. McLoughlin agreed to help them in that enterprise. He had certainly not agreed to help them in murder, but I should think it highly likely that he gave away what he did and informed against them because he was shocked at the murder that had been committed. As I think any police officer of experience would say, the professional burglar seldom uses violence; he does not think it in accordance with the best traditions of his trade. He will not put his 748 neck in peril, though he will run the risk of a long sentence. At any rate, McLoughlin did give information to the police to the effect that this matter had been planned since August 5. He said that it was well plotted and thought out. He had agreed to take part in the burglary but, fortunately for him, he was arrested on another charge, I think two days before the robbery took place, and he was in prison at the time when it did take place. It follows, of course, that he had nothing to do either with the burglary or with the murder.
§ But in addition to that, two young girls of easy virtue were called. One was a girl named Marie Milne and the other, and for this purpose the most important, was a girl named June Bury. Their evidence was that these men, who were both Manchester men, had come over from Manchester to Liverpool; these girls knew them and they were more or less their mistresses, and at some café in Liverpool and also on a railway journey between Manchester and Liverpool, the prisoners had invited the two girls to give them their assistance. The suggestion was that they, or one of them, should go to the house and engage the old lady in conversation while the men broke in at the back. June Bury's evidence was that from the first she refused to have anything to do with it, and in that she was supported by Marie Milne. Marie Milne's evidence was that she agreed to help these two ruffians. June Bury was a close friend of the prisoner Devlin—she was sleeping with him at the time. Marie Milne, I think, was a friend of the prisoner Burns—but that does not matter. However, there was no question, and it was not challenged, that June Bury had refused to take part in this burglary, though Marie Milne had agreed to do so.
§ Accordingly, these men came from Manchester to Liverpool on the Sunday evening and Marie Milne met them, somewhere about nine o'clock, not far from the scene of the burglary. For some reason or another, they changed their plan and told Marie Milne that they did not want her assistance after all. The evidence was that she left them, having arranged to meet them again at a quarter to eleven, I think at a particular café—I believe I have the times right, but it does not really matter. She did meet them, and it was quite obvious that something had taken place, although she was 749 not told what. Your Lordships will see at once that those three witnesses alone—there were other witnesses with whose evidence I need not trouble the House—formed a deadly body of evidence against the two prisoners, but of all three, from one point of view, June Bury was by far the most important. The learned Judge who tried the case would have to—as he did—warn the jury to regard the evidence of McLoughlin and Marie Milne with particular suspicion, because they were, on their own showing, willing to be accomplices in this matter. June Bury, however, was in a different position because—and, as I say, she was supported by Marie Milne in this—she had said she would have nothing to do with it.
§ The prisoners had nothing to say to this evidence except that it was entirely untrue, because their defence was an alibi—in one way a rather desperate alibi. Their defence was that at the time they were supposed to be breaking into this woman's house and killing her they were engaged with another man named Alan Cunningham, whom they called, at a factory-breaking at Manchester. If they could satisfy the jury of that, it would follow that although they might be prosecuted for breaking into the factory at Manchester they could not he convicted of murder. There was no doubt that a factory had been broken into at Manchester over the week-end, but when it was broken into was quite another matter. The factory was broken into some time between midday Saturday and early Mon-clay morning, when the crime was discovered. In the inquiry which followed, it was shown that the prisoner Devlin, at any rate, had managed to get information—very detailed information—with regard to this breaking-in, so that he could have set up a false alibi, as the jury found. That being the case, the men were tried before Mr. Justice Finnemore and a jury at Liverpool. The case took, I believe, something like eight or ten days. At any rate, it was a very long trial, because a great many witnesses were examined and, after a summing-up which was as completely full and as completely fair as any Judge could possibly have given, the jury convicted the accused men. Of course, if the evidence of the three witnesses I detailed to your Lordships was true, it was an overwhelming case.
§ Then at once an appeal was lodged in the Court of Criminal Appeal. It was 750 lodged on two grounds. First, we had the usual ground of misdirection by the learned Judge. It was not really seriously pressed; there was no misdirection by the Judge. But what was urged upon us was that we should hear fresh evidence of a most important character, and the fresh evidence we were asked to hear, it was said, went to show that June Bury, the importance of whose evidence I have already emphasised, had committed perjury and had admitted that she had committed perjury, and, secondly, that another man had admitted that he had committed the murder. That second man can be briefly disposed of, because he very soon retracted his confession. It is the commonest thing in the world, after any murder has been committed, for various exhibitionists to say that they have committed that murder—why they do it I do not know. But we were seriously asked in the Court of Criminal Appeal to consider evidence which it was suggested went to show that June Bury had committed perjury, and to inquire into the confession of this other man.
§ We declined to consider that evidence, and we declined for very good reasons. Matters of this sort have often previously been before the Court of Criminal Appeal, who have always, in these circumstances, refused to hear such evidence, mainly on the ground that they have no power to order a new trial. Your Lordships probably know that all the Court can do is to quash a conviction or dismiss an appeal. We have no power to try anybody. We have power, under, the Act, to admit fresh evidence, and the Court has often done it where it is relevant to some matter that has been raised by the defence. For instance, the sort of case that comes most quickly to my mind in which we have done so is where the defence has been an alibi and some evidence has been discovered at a time subsequent to the trial which would strongly support the alibi and which had not been before the jury. If the evidence we had been asked to receive in this case had been evidence to strengthen the alibi that these men committed the crime at Manchester when they were said to have been murdering the woman at Liverpool, we might, if certain well-known rules had been applied—such as that certain evidence could not have been called at the trial because it was not known, and so forth—have admitted that evidence.751
§ But how could we, without usurping the functions of a jury, which is something our Court has always refused to do, investigate the case and come to a conclusion as to whether June Bury had committed perjury or not? If we were to quash the conviction of these men on the ground that that girl's evidence was untrue, we could do so only if we came to the definite conclusion that the girl's evidence was untrue—and, only a jury could do that. One of the things I am contending for in the Motion I am putting forward is to uphold the sanctity of trial by jury. It is only a jury which can decide whether a woman has been committing perjury and only a jury which can decide whether another person has committed a murder. If we had embarked upon it, we could not have avoided giving some pronouncement on whether this girl had committed perjury or whether this other man had committed the murder. Supposing we had said that we did find that she had committed perjury, how could she then have been tried afterwards by a jury? The prejudice that would be against her, the Court of Appeal having found that she had committed perjury, would be so great that she could not, I should think, expect to get fairly tried. So, as I say, the Court has always refused to go into questions of this sort as to whether a witness has committed perjury at the trial or whether some other person has committed the crime. It applies for the reasons which I have endeavoured to explain, in cases not only of murder but also of other crimes that may come before the Court.
§ But now see how different it would be if the Court had power to order a new trial. Then it would be for a second jury to pronounce upon the matter as to whether witnesses were committing perjury or not, or whether these people had been wrongfully convicted. We, the Court of Criminal Appeal, might no doubt consider the evidence afterwards tendered and see to what issues it went, and if we thought it established a prima facie case, whether it be of perjury or of wrongful conviction or of miscarriage of justice, then, instead of dismissing the appeal or quashing the conviction (which would indicate that we were satisfied that someone else had committed the murder) we could say: "There is a case shown here which ought to be re-investigated. 752 Let it go down for a new trial. Then these men who have been convicted will have the benefit of this new evidence which they say they have discovered. They will be able to cross-examine witnesses, to ask them if it was not true that they had committed perjury and to put to them matters in respect of which they allege the witnesses have committed perjury. They will be able to put to the witnesses suggestions designed to show that they have committed perjury. Then, when there has been a proper trial before a jury, if the jury come to the concluclusion that their case is right no doubt they will acquit the men." And a man, if once acquitted, as I have already said, is acquitted for ever, because the Court of Criminal Appeal has no power whatever to deal with acquittals.
§ Let us see what, in fact, happened. As the Court of Criminal Appeal has not this power, the only alternative was to lay the facts before the Secretary of State. No one doubts, I am sure, and certainly I do not, that the prerogative which the Secretary of State has to exercise is the most difficult power that any man has to exercise, especially in capital cases. As I have said, I am not making any criticism of the line taken by the Secretary of State, except in one very small matter, because he had no alternative but to have an inquiry into this matter. He appointed a well-known Queen's Counsel on the Northern Circuit—and he could not have found a better one—as Commissioner to hold the inquiry. In holding an inquiry, the Commissioner, in fact, retried the case. He had to hear all, or a great many, of the witnesses who had already been before the Court, and he had to make up his mind whether or not there had been a miscarriage of justice.
§ The Commissioner held this inquiry: and, if I may say so, right well he did it. And he came to the conclusion that there had been no miscarriage of justice. He found that June Bury had not committed perjury, and the other man, who had said that he had committed the murder, he dismissed as a mere drunken exhibitionist. Devlin had made a statement in which he had said that two men, McNeill and Rubin, had committed the murder, and therefore the Commissioner had to embark on an inquiry into that as well. In effect, he was re-trying Devlin and Burns, because if he came 753 to the conclusion that the witnesses were telling lies, the Home Secretary would then probably have to advise a free pardon, whereas if he came to the conclusion, as he did, that there had not been any perjury in the case, and that the other confession was bogus, then he was dismissing the prisoners' appeal again.
§ This inquiry which the Commissioner held was not held under the sanctity of oath; he had no power to administer an oath. It was held in private. The prisoners' counsel were allowed to be present to suggest questions that should be asked and matters that should be gone into, but the Commissioner said, and I think he was right, that he could not allow cross-examination. Police officers would have been present, but there was no one representing the prosecution. That is what happened, and it happened, as I say, because we had no power to hold a new trial. But what is, in effect, a new trial takes place without oath, without counsel and in private. I suggest to your Lordships that that is a very unsatisfactory state of affairs.
There is another matter to which I should like to draw your Lordships' attention. I was somewhat surprised to find in the White Paper a letter from the Director of Public Prosecutions in these terms:
I consider it right, in the circumstances, that the Secretary of State should know, for the information of the Tribunal, that no prosecution will be instituted by me based upon evidence given to the Tribunal in respect of any matter relevant to the terms of reference. Moreover, I will not make use, and will take action as is open to me to ensure that no use is made, as evidence in any criminal proceedings, of any relevant information that may be given to the Tribunal.
I do not know, and I am not going to assume, that that letter was written with the assent of the Attorney-General, but it seems to me to raise a most serious question. June Bury had committed perjury, and if the findings of the Commissioner had been different, should she have been prosecuted for swearing a man's life away, and should she have received severe punishment for so doing? If another man had committed the murder, was it right that he should go scot-free? If this letter does not mean that if a murderer or perjurer likes to come forward and make admissions he will be allowed to go scot-free, then the letter is a trap. It was not so considered
by the Commissioner, because he told the witnesses that they were perfectly safe, that they could tell him anything they liked and make any confession, and they would not be proceeded against.
§ Let us consider another aspect of such a letter and what proceeds from a case if extra-judicial inquiries are held in this way. Suppose that June Bury had been Devlin's mistress, or at any rate his sweetheart. Suppose that in a serious case a sweetheart has given evidence against a man, or a mother against her son, and that it has resulted in a conviction. If that woman then hears that she can go before a Commissioner who is inquiring into the case and say what she likes, and will not be convicted, is there not the strongest temptation for her to conic forward and say what is untrue—that she did commit the murder or burglary or perjury—because she has been told that nothing can happen to her if she does so? I think this is an extremely dangerous proceeding.
§ I realise, of course, like your Lordships, that often it is necessary for the police or other persons whose duty it is to investigate crime, to allow somebody to turn what is called King's evidence, because they are less responsible for the crime. Let me take a very common case, that of abortion, where a professional abortionist is being prosecuted. The authorities could never get evidence unless they had one of the women who had been aborted, and who, therefore, in law was equally responsible, to come forward and give evidence. In bringing before the jury a woman who, on her own showing, has been a party to the crime, the Judge will warn the jury about her evidence—and a conviction would he quashed if he did not; he will warn them that they must accept her evidence with the greatest caution and must not act upon it unless it is corroborated. She comes before the jury as a tainted witness, whose evidence they have to consider with the greatest possible care. This case is entirely different. There has been a confession, which is being inquired into, and the witnesses are told that they can tell the Commissioner what they like and make any confession open to them, he having undertaken that they will not be prosecuted. It was a fortunate thing in this case that June Bury was found not to have committed perjury, and that none of the three 755 men who were said to have committed the murder had committed the murder. I am wondering what would have happened if the Commissioner had come to a different conclusion.
§ EARL JOWITT
My Lords, I have only just seen this letter. May I ask whether the noble and learned Lord understands the letter to mean that if June Bury had brought forward evidence that the murder had been committed by somebody else, no proceedings could have been taken against that person?
§ LORD GODDARD
No, I do not know about that. It raises rather a nice question. What I say is that if June Bury came forward and said she had committed perjury and sworn this man's life away, she could not have been prosecuted. The noble and learned Earl will find that that is the explanation which the Commissioner gave to the witnesses who came forward. That seems to me to be a matter that is of very great, I would almost say constitutional, importance. The only criticism that I would make of the action of the Secretary of State is this—and it is a minor criticism. Having held this private inquiry, he publishes the results in a White Paper. No one would ever suggest, and more especially in capital cases, that the Home Secretary is not entitled and ought not (in fact, he always does) to make as many inquiries as he likes. He has to make inquiries into many matters to consider whether he will advise a reprieve. But it seems to me that it is rather a novelty to publish to the world conclusions which I should have thought ought, at the highest, to be no more than private advice to him.
It is no light thing for one man, however competent he may be—and, as I have said, Mr. Gerrard was about the best man who could have been chosen, and he did his work extremely well—to come to a conclusion and have to report that there has been a wrongful conviction by a High Court Judge and jury, and a miscarriage, also, in the Court of Criminal Appeal, who upheld the conviction, and then for that conclusion to be published to the world. If there has been a miscarriage of justice, no doubt everybody would wish it to be put right at the earliest possible moment and in the fullest possible manner. But a matter of this sort, if it does result in 756 overturning the decision of the duly constituted courts of the country, is apt to cause some doubt and disquiet in the public mind as to the competency of the courts. It is really a different matter, because of fresh evidence, but people do not always understand these things. I know that even if we had the power to order a new trial, it still, perhaps, would be necessary in many cases for the Home Secretary to make further inquiries. But I cannot believe that it would be necessary for the Secretary of State to hold these extra-judicial inquiries in this way. If we had thought that there was anything in the evidence which really deserved a new trial, then the matter could have been dealt with in the proper manner, and the only tribunal which, according to the laws of this country, has power to pass upon such matters—namely, a jury—would have had an opportunity of returning a verdict.
As I say, it is not only in cases of murder, and it is not only in cases where fresh evidence comes up, that it is desirable that the courts should have this power. It happens from time to time that a jury gives an inconsistent verdict, and at present, if a jury gives an inconsistent verdict, the court must quash the conviction. Let me remind your Lordships of a case which was very much under discussion in your Lordships' House when I moved an Amendment to the Bill in 1948. Two detectives of the Metropolitan Police Force had been charged at the Old Bailey with robbing aliens. The case made against them was that they had special duties with regard to aliens and interviewed various people, some of whom could hardly speak English, and that they had threatened to prosecute them for imaginary offences if they did not give them money, property or something of that sort. A very formidable case was made against them. They were tried at the Old Bailey on an indictment which I believe contained seven charges. The first was that these two men had conspired together to do this, and then the particular offences which it was said they had committed were set out in the separate counts. The jury came back with a verdict of guilty of conspiracy; but they found the defendants not guilty upon all the other counts in the indictment, which charged the particular offences upon which alone the conspiracy 757 rested. Your Lordships may laugh, but I can well understand the reason for it. The reason was that the jury thought that these two men were obvious rogues, but there was, as we call it, a disagreement among the jury on the various charges. Some of the jury may have thought that in the case of "A" the men did do it; but two or three may have thought that they did not do it in that case, but in another; and possibly the other members of the jury were not of the same opinion in regard to the second case. If the jury had disagreed, then the whole case could have been tried over again.
That answers one of the objections so constantly urged against the Court's having power to order a new trial. It is said that it puts a man to the misery, or whatever one likes to call it, of having to stand his trial a second time. It often happens that a man has to stand his trial twice, because if a jury disagree—and I think there is an unfortunate tendency in juries to disagree nowadays—then the man has to be tried again. Seldom does an Old Bailey session go by, or a long assize at Liverpool, Leeds or one of the big provincial centres, without there being a disagreement, which means that the man has to be tried over again. Then it is said that if he is tried over again he will not have the least chance of acquittal. Why not'? "Because," it is said, "it would be known that he had already been tried." I do not believe that juries take such an extraordinary interest in police court reports—I am not suggesting that they may not in a very sensational or important case, but ordinarily I do not think they do—that if they were called upon to serve on a jury they would remember that the man had been tried. At any rate, I believe that this power of ordering a new trial exists in all, or almost all, of the Dominions; it exists in every court in America, both State and Federal; and certainly it exists in Canada, where I know that it is very much used.
In only one place have I been able to find out from statistics how often a man gets off if he is tried a second time, and that place is New South Wales. Statistics there show that where a new trial has been ordered the chances are about fifty-fifty as to whether there is a conviction or an acquittal. I once again emphasise—though I do not think it is 758 really necessary—that it is only where a man has been convicted that the question of ordering a new trial can possibly arise. What the objection is to giving the man a chance of getting off on a second trial, I do not know. But one thing I do know is that the number of prisoners who ask if they may have a new trial is quite remarkable. I do not think my late lamented friend Lord du Parcq could have had that in mind: he did not often sit in the Court of Criminal Appeal, although he did on several occasions. I see it much more, because I have to preside in the Court of Criminal Appeal practically every Monday. What I have said it seems to me shows that this idea that it is unfair and hard on prisoners that they should be tried over again has no foundation in fact. We are constantly being told: "Well, somebody might have come and said this, that and the other." Nowadays, when every prisoner is defended at the public expense, they show no gratitude for it, because one of their commonest grounds of appeal is that their; counsel "messed up the case" and would not ask the questions they wanted asked; and they ask for a new trial before a jury. The answer is, "No, you cannot, however deserving you may think it." That seems to me to deal with the argument that is so often put up in this matter—that it would be really a hardship on prisoners to allow a second trial.
With regard to expense I say nothing because nowadays prisoners are all defended at the public expense. They are more often than not very well defended, as they were in this case by two leading Queen's Counsel, the leader of the circuit and a lady Queen's Counsel, whose ability in defending cases will immediately be recognised by anyone hearing her. Therefore, I do not think there is anything in that point. As I have said, it is a remarkable fact that England and Scotland—I am not certain about Ireland—are, I believe, the only places in the British Commonwealth in which this power to order a new trial does not exist. There may be one other, but I am not certain about it. Of course, I realise that if this power were given it might be thought desirable that it should be limited to certain cases or to certain events. Personally, I should prefer that it should be left to the Court. I am sure that it is a power which would be used 759 very sparingly; but that it ought to exist in proper cases I am quite sure.
I make no apology for bringing this matter before your Lordships' House, because I know the great interest which this House—which, after all, is the Supreme Court of Judicature in this country—takes in all matters which relate to the administration of justice; and, as I have said, your Lordships supported the Amendment which I ventured to move in 1948. I bring this question again before the House not in the interests of prisoners, and assuredly not in the interests of prosecutors. I do it in the interests of justice. Those of us who have been in the profession as long as, I regret, that I have are tempted to look upon the Court of Criminal Appeal as a new Court, and certainly it was not in existence until I had been called to the Bar for nine years. But it has been in existence now for forty-four years, and I believe that no one would deny that it has justified itself and that it has gone far to justify the hopes and intentions of its founders. It is because I want to see it, if possible, made a still more perfect instrument in the attainment of justice that I beg to move for Papers.
§ 4.53 p.m.
§ VISCOUNT SIMON
My Lords, my noble and learned friend the Lord Chief Justice has greatly interested this House in his general argument, and I think particularly in his lively, vivid account of a story of mystery and violence, in the course of which he has shown that, if he did not happen to be Lord Chief Justice of England, he might well be another Edgar Wallace, with every conceivable claim to interest the public in shocking crimes of violence. My only reason for intervening is a circumstance to which my noble friend has alluded, and which is a distress to all of us who remember the debates of 1948. In the summer of 1948 we had two debates on this subject, and on both occasions speeches of great power were made by Lord du Parcq who, alas! is no longer with us. I do not think members of the House who remember the debates would challenge me when I say that those two speeches of his made an immense impression on those who heard him, and who were endeavouring with all their might to judge the issue wisely. He is no longer 760 here and, therefore, I hope I am justified in adding a few words. Since the Lord Chief Justice has been so kind as to refer to me as though he were once my pupil, I may say that Lord du Parcq was also my pupil, so I have no prejudice in the matter.
It is necessary for a few moments to be sure that we all appreciate the history of the proposal that the Court of Criminal Appeal should have the power to grant a new trial. It is necessary to get that in focus. It was referred to in a sentence or two by my noble and learned friend, but I think I ought to add a few words. It was in the year 1906—the first year in which I was a Member of another place—that the Criminal Appeal Bill was introduced, and it was carried into law in the following year, 1907. That Bill, as it was framed, provided for the first time for a Court of Criminal Appeal from a conviction at assizes, or wherever it may be. As that Bill was first introduced it contained no provision for a new trial. That provision was omitted quite deliberately, on the view that it was a most essential principle of our administration of justice that once a man had been accused before a competent court of a crime, and once the issue had been pronounced upon by a jury, either convicting him or acquitting him, the best rule to follow was that he ought not to be exposed to that same peril a second time.
When the Bill of 1907 reached your Lordships' House then, for the first time, it was amended by the insertion of a clause of this sort. It came back to the Commons, and a series of speeches were made in the year 1907 against this proposal—speeches which at that time were thought to be so powerful as to require the suggestion to be abandoned. As my noble and learned friend said, Lord Lore-burn (formerly Sir Robert Reid) was Lord Chancellor at the time, and he said in your Lordships' House, when this matter was being considered, that in view of the speeches which had been made in the House of Commons, for example, by Sir Edward Carson, insisting upon this essential and elementary principle of British criminal justice, and by Lord Robert Cecil and others I could name, and having himself always been doubtful on the point, he felt that it was impossible to justify the insertion of the clause in the Bill. The consequence was that ever since the Court of Criminal Appeal was 761 established under the original Act, it has never had that power.
Then we had our debates in 1948—and very interesting debates they were—in which there was an acute difference of opinion. My noble and learned friend the Lord Chief Justice made the persuasive speech which we expect from him, and there were others for whom I have the very greatest regard who agreed with his view. Lord du Parcq did not, and he made the speeches to which I have just referred. It is essential, therefore, that your Lordships should have in mind what were the main arguments which were used by Lord du Parcq, because, though I ant not in the least opposed to this whole matter being reconsidered, so long as it is reconsidered in the proper atmosphere and temper, I think it would be a grave mistake to suppose that there is only one side to the argument.
There is great force in the argument that the Court of Criminal Appeal should have the power to order a new trial. But I think I can show that there is also a strong argument against it. It is the argument which has hitherto prevailed, not only in 1907 but also in 1948. What happened in 1948 was this—I am speaking within the memory of the noble and learned Earl Lord Jowitt, who was then Lord Chancellor. There again, the Criminal Justice Bill as introduced by the former Government did not contain this clause—and deliberately did not, I am sure, because it would have been put in if it had been thought right to do so. The proposal was made in this House as an Amendment to the Bill. I do not recollect that the proposal was originally made by the Lord Chief Justice; I thought it was made from the Woolsack. Difficulties were felt in various forms of amendment, and there was a good discussion. But ultimately this very significant Bill was amended in this House and was sent back to the House of Commons with the proposal in it.
How, then, did this provision fail to become law? It had been the subject of a most important debate here; the then Lord Chancellor had proposed the insertion of the clause. How did it fail to become law? I am speaking, I think, within the recollection of my noble and learned friend, and I have reminded myself by reading the debates. The reason it did not become law was that by the time 762 it got back to another place the authorities then responsible here had begun to realise that it would not be accepted there. The then Attorney-General, Sir Hartley Shawcross, made a very frank speech. He said of the proposal that he was extremely doubtful—and that other people thought so—whether it would he a wise thing to do; and he ended by giving some of the reasons why.
The point is that, having considered the situation and having inquired what the lawyers in the House of Commons thought about it, and what other people thought about it, he came to the conclusion—and so did my noble friend—that they could not consider the proposal. And they dropped it. In fact, the House of Commons moved "not to agree with the Lords Amendment" and that was accepted here, on the advice of the Lord Chancellor. Consequently, although this matter was so carefully considered not so long ago, we still remain under a system of criminal procedure by which this Court of Criminal Appeal may have to hear an appeal by a convicted prisoner and to decide whether that appeal shall be allowed or not allowed. The Court may, if it thinks it right quash the conviction, as it is called or it may, alternatively, refuse to grant the leave, in which case the conviction stands. The Court, as yet, has no power to order a new trial.
All I am concerned with to-day is, without much delay, to state to the House in the simplest terms I can what are the two main reasons which, in the opinion of many people, show that that is the wiser view to take. Not for a single moment would I suggest that there is not a serious argument in favour of the change; and there are other most distinguished and experienced men, lawyers of the highest eminence and others, who think it a natural change to make. But what are the two main reasons which hitherto have been thought such as to show that, on the whole, it is better that the Court of Criminal Appeal should not have this power, even though distinguished members of the Court have asked for it? Let us see, quite clearly, how reasonable the request appears to be. As the law is now administered, there are undoubtedly cases in which it is thought that the appeal to the Court 763 of Criminal Appeal must be allowed because there has been some mistake in the procedure, and yet where it may be reasonably supposed that, if the man were tried over again, he might be convicted. I do not deny that there are cases under the present administration of the law, necessarily, in which a man, probably a guilty man, gets off. It therefore seems reasonable to say "Let us change the law, at least to reduce the risk of that." Many people have put that argument forward with great force and power, both in this House and in another place. I see the noble Viscount. Lord Hailsham, is here: in the other place, he advanced this argument almost first of all.
But what are the two serious difficulties which must be faced? This, after all, is a case in which there are arguments both ways. What are the main objections? Why should we not provide for ordering a new trial in such cases? I think the answer that would be given by those who take the view of Lord du Parcq—and I am concerned to put forward his views before the House, rather than to make any case of my own—would be this. First, it is a fundamental principle in our criminal law that once a man has been put on trial before a competent court, charged with a criminal offence, and that man has been either convicted or acquitted, then he cannot be charged with that same offence a second time. That has been the law of England for centuries. Indeed, it is expressed even now by two phrases which are not English but in the old law French which was used long ago in our Courts. Once a man can say, "I have already been acquitted of this offence" or, "I have already been convicted of this offence," then he cannot be charged again with that offence. He can defend himself by pleading in the old phrase autrefois convict or, on the other hand, autrefois acquit. It is fundamental that a man cannot stand trial more than once on the same charge.
With great respect, there was one remark in the speech of the noble and learned Lord, Lord Goddard, with which I disagreed. That was his statement that frequently people do have to stand trial more than once—for instance, in the case of the jury disagreeing. Of course, there is no argument about that; you have to 764 proceed with the charge until it is disposed of. But what I am saying. and what the English law has always said, is that once a man, charged before a competent tribunal with a crime, has been either convicted or acquitted of that crime, he cannot be tried for it again.
§ EARL JOWITT
That argument does not apply in the case where a man is acquitted. It applies only where a man has been convicted; the worst has happened; and what you do by having a new trial is to see that he has another chance, when he may not be convicted.
§ VISCOUNT SIMON
I do not think that is a very important consideration. I am perfectly well acquainted with the rule as it applies, and of the fact that it applies only in cases where the man is convicted. I was stating my principle now in the broadest terms. If you alter the rule (I am limiting myself to the case of the convicted man) and say: "Yes, you have been convicted once, but that is no reason at all why you should not be tried again," if the rule were thus altered and you could have a new trial, a second trial on the same charge on which the man had been previously convicted, could you be reasonably certain that the second trial would be altogether fair to the accused? The argument is this (it has not been mentioned by my noble and learned friend, but it was a most important argument in our previous debates), that until the accused has been convicted the jury know nothing about his record. You cannot produce any information about his previous convictions. However many times he has offended, he is treated as though he had never offended before. Indeed, if by accident that good principle were not observed, the trial would not be regarded as satisfactory and he would be told that he must be taken somewhere else and tried.
Once the man has been convicted on the first occasion, the next thing that happens necessarily is that his previous record is made known. His previous convictions are proved. The public discover, and sometimes the jury discover, to their great astonishment, that all the time they have been trying a man who has done this kind of thing several times before. I have seen juries, even in my experience, showing some signs of surprise when informed: "Yes, you were quite right in convicting 765 this man. He has done this kind of thing several times before." On hearing that, the judge decides what the sentence should be, and very often he will make some strong comments about it. The newspapers, which down to that time have been bound to say nothing about the previous history of the accused, may write, and often do write, stories of his sordid life and his past misbehaviour. You cannot stop that; that must happen. Suppose that after all that, this is one of the cases in which a new trial is ordered.
The difficulty felt by many people, who only desire the consideration to be fully weighed, is this: Can you really be reasonably sure, if you say, "Ah, well, there ought to be a new trial," that the new trial can be conducted in a way that is really fair, according to our ideas, to the man who is accused? The former Attorney-General, Sir Hartley Shawcross, in a speech which he made in another place, put this consideration in a most effective way. I am not going to quote his words—perhaps it would not be right to do so—but what he said in effect was this: "In circumstances like that, if a man has already been convicted, when the conviction has been published in the newspapers, when it is perhaps a notorious case which all sorts of people have been reading with avidity in such papers as they may gut hold of, when the whole story of his past life has been publicised far and wide, how can you really say: Oh, I do not think that would matter. He can still have a new trial with all this black record behind him'?". That is the consideration which the late Lord du Parcq urged in this House with so much passion and with such real anxiety to get justice done.
If there is any force in that, your Lordships will, I think, appreciate that this is one of the cases in which you have to choose between two courses, neither of which is ideal. You must choose: there is no alternative which has not an objection. The whole question is, to my mind, which is the more serious objection? It is an objection, of course, that a man who may very well be guilty may, none the less, get off because he, or his counsel, is able, on an appeal, to point to a serious irregularity in the way in which he has been tried. Perhaps evidence has been admitted by the judge which ought to have been excluded. Perhaps the judge 766 has summed up in a way which is not proper. Those are not faults to be attributed to the accused, but it does happen. Indeed, if that were the only consideration, there would be a good deal to be said for saying: "Well, if that is so, try him over again." That is one argument, but it must be weighed against the other one.
The other argument is—and is this not really more important?—you must so devise the practice of the criminal law as to make sure that no one is convicted in circumstances which prejudice a fair trial. I know it is said—I remember the Lord Chief Justice saying it on the last occasion—"If you give us this power, we shall use it only very sparingly; we shall want it in only very special cases." That does not impress me as much as I should like. Of course, I know very well that when the Lord Chief Justice says that, he means it and he would do his best to carry it out; but I do not know how we can put in an Act of Parliament that a court is to have the power to order a new trial and say: "but they are to use it very sparingly." I do not know how that is to be enacted. I cannot imagine words in any Act of Parliament which have said so. It is an assurance which, of course, I accept in its fullest measure, but the point is, what is the law you are making? While it may be true now in the days of the present Lord Chief Justice, or next year, is it going to be true in times to come?
There is a second consideration in this connection. I certainly pay great attention to the argument that they have this system in some other countries without, it is thought, disadvantage. But I certainly cannot agree that it is a good argument to say: "Well, they have such an arrangement in America." They have indeed. There are cases, in the United States, if I rightly understand them, where men have been convicted on a charge of, say, murder or rape, and where, by a series of new trials, for this reason or for that, they have been kept in suspense and doubt for years and years. I much prefer our English system. To my mind, it is a very important element in the administration of criminal justice that the result be attained promptly. I know it is said: "If you gave us this power, we should exercise it so as to have one new trial. There should not be more than one: there should not be a third time." 767 I venture respectfully to ask the question: "Why not, if you please?" In ordinary civil cases between "A" and "B," if something goes wrong you can perfectly well have a series of new trials.
Why do you provide for that or seek to provide for it? Really it is because it is realised that this method, though it has such obvious logical force, is a method which is calculated not to give a man in all circumstances the fair hearing which, according to our view, he ought to have. Therefore, while I am not in the least opposed to a proper inquiry as to whether we can learn more about it, I do not think it would be right for this debate to come to an end without the view which was expressed by the late Lord du Parcq, and which I must admit I shared, being placed before the House this afternoon. I will not say more about the general question, but those are the considerations, as I believe, which have to be weighed on the one side or on the other.
My learned friend gets a new "card of entry" for this much discussed but hitherto rejected proposal by reference to the particular case of these two men in Liverpool who have now been executed. I do not want to discuss that at length. I must confess that I have some feeling with him on the subject of the letter from the Director of Public Prosecutions which he read. I will not go into that further. I must also say this, because I have been Home Secretary in my time. In general, I think it is perfectly right to say that, where the Home Secretary has a duty to obtain additional information before he decides to authorise a punishment, it is much better to keep that information confidential. That has certainly been the case in my experience. I can instance one example which quite often happens in the Home Office. In many cases, after a man has been convicted, there has to be considered by the Home Secretary the question of whether or not there really is reason to form the view that the man is insane, that he is suffering from serious mental defect.
As I suppose most people know, the Home Secretary has a number of extremely experienced alienists, the best in the country, who form a committee and who, in any suitable case, would be asked by the Home Secretary to investigate. That is not a new trial, but it is 768 an absolutely essential part of the information which the Home Secretary must obtain. In my experience he never vouches these people as his authority. He has to decide in the end, and I am very glad to think that his decision is accepted. There may be many cases in which the Home Secretary has to make inquiries in one way or another. I see no way out of it. One can only hope that he can be trusted to do his work wisely, responsible as he is for one of the most serious branches of advice under the prerogative. But generally speaking, I think it is better not to say, "This is because Mr. So-and-so has inquired," for in the end the decision has got to be the Home Secretary's own decision, and nobody else ought to be vouched for it at all.
To turn now to the main question which he has raised in this interesting story, I must say that I have the gravest doubt whether the provision that a new trial might be ordered would overcome the difficulty. I can instance one variation of the fact which will show my point at once. In the case that the noble and learned Lord referred to, these two people were convicted of murder. They appealed to the Court of Criminal Appeal, and before the Court of Criminal Appeal had come to a decision, there was put forward the suggestion that somebody else had said he had done it, or that there was evidence that one of the witnesses had committed perjury. But supposing that suggestion had come forward after the Court of Criminal Appeal had dealt with the appeal, they had already decided whether or not the appeal should be allowed, and had already said that there was no ground for allowing the appeal at all. In that case the particular problem of this kind would be just the same. But it would be no good saying "Let us have a new trial." The Court of Criminal Appeal would already have decided the matter.
§ LORD GODDARD
My noble and learned friend will remember that the Home Secretary always has power to refer a case to the Court of Criminal Appeal, and ask them to consider it on further evidence.
§ VISCOUNT SIMON
I speak subject to correction, but can he do that after the Court of Criminal Appeal have dismissed an appeal?
§ LORD GODDARD
Yes, certainly. Not long ago that was done. Evidence turned up which showed that a prisoner's alibi was absolutely right. It was a case of mistaken identity. We had dismissed the appeal, saying that we could not find any ground for interfering with the verdict of the jury. Further evidence came forward which showed that the alibi was true. We heard that evidence, and we quashed the conviction.
I am very much obliged. That shows that the particular instance I put was not a good one. But, as I say, there are difficulties. Supposing that there is a suggestion that somebody has committed perjury, is the difficulty met by saying "Let the case be tried over again by order of the Court of Criminal Appeal?" It is a very common thing indeed to suggest that some witness has committed perjury. It is a very common excuse which is given in the case of a man who is guilty. I cannot think that the Court of Criminal Appeal would be likely to order a re-hearing on that account.
As for the suggestion that somebody else has come forward and said, "I was the murderer," consider where you would get to. The Court of Criminal Appeal hears that two people who have been convicted of murder are saying or suggesting that somebody else, "A.B.," claims to have been the murderer. Thereupon, a new trial is ordered. Then what happens? I cannot suppose that the man who claimed to have committed the murder would be called by the prosecution, unless indeed the prosecution believed him. I suppose he would be called, if at all, by the defence. The moment he is called by the defence, and the question is asked of him: "Did you commit the murder?" I should have thought he would say at once, "I am not going to answer that question. It incriminates me." I fear the only result would be that there would be more confusion than ever in the minds of the jury. The truth is that no arrangement will work perfectly in all cases. We remain under an immense debt to the good sense and the care which our criminal Judges exercise. But that really does not get rid of the fundamental considerations which the late Lord du Parcq urged so powerfully to the House.
My Lords, I do not wish to say more; I hope that I have made it plain that I 770 am not arguing in any sort of heat or certainty about the matter. What I am quite clear about is that it would be wrong to proceed on the assumption that there is only one side to this matter. It is a very difficult matter, and one upon which people may well take different views. If it is felt that the whole question should be reconsidered by some proper Commission or Committee, certainly I should be the last to object. But I thought it my duty to point out to the Mouse, as firmly and as clearly as I could, what were the considerations which in fact did apply when this matter was before the House only three years ago, when this proposal was finally rejected by the Government without dissent in the House. Those reasons are really very important reasons, and they ought not to be forgotten in considering the matter now.
I apologise for keeping the House to give this explanation, but it is only right that the other side of this matter should be slated as clearly and as firmly as possible. Our whole object here is to get the best practical machine for doing justice, and for my part. I must confess that I should be very unwilling to see any change made in the criminal procedure which would have the effect, as I fear this would in some cases, of depriving a man, guilty or innocent, of something which I regard as far more essential than the conviction of every guilty man—that is, a completely fair trial.
§ 5.29 p.m.
§ LORD OAKSEY
My Lords, I intervene for only a few moments, and I do so because I have had long experience as a High Court Judge going on circuit, and still have some criminal jurisdiction as a chairman of quarter sessions. I do not propose to repeat the arguments which have been so forcibly presented by the Lord Chief Justice, but I wish to say that I am in agreement with him. I want to say a word or two in answer to the arguments which have been presented by the noble and learned Viscount, Lord Simon. As he said, it is perfectly true that from time immemorial a man could not be convicted twice for the same offence—that he could plead autrefois acquit or autrefois convict. That, of course, was when there was no right of appeal at all. The question is whether when you introduce an Act like the 771 Criminal Appeal Act you ought to give the Court which has the power of quashing a conviction or letting a conviction stand the power also to order a new trial. The argument that the old practice about autrefois convict and autrefois acquit ought to stand is, I submit, not an argument which has any real substance in it. The question is whether it is necessary and advisable for the jurisdiction of the Court of Criminal Appeal that they should have the power to grant a new trial.
The noble and learned Lord, the Lord Chief Justice, has brought forward a number of arguments, and presented them most forcibly, for saying that the Court of Criminal Appeal should have such a power. I am not going into all those arguments again. A new argument, which was not before your Lordships' House in 1948, is based upon the most undesirable investigation which had to be ordered by the Home Secretary in the particular case to which Lord Goddard referred. There is only one other argument—which I do not think the noble Lord mentioned—with which I should like to deal. It relates to what is known as the proviso in the Criminal Appeal Act. That proviso lays it down that if the court think that there has been no substantial miscarriage of justice, they can let the conviction stand, although there may have been certain irregularities in the trial. But it has been laid down, on the consideration of that proviso, that the court must be satisfied that a reasonable jury would without doubt have convicted if the case had been properly presented to them. That is a most difficult jurisdiction for the Court of Criminal Appeal to exercise. Who is to say what a reasonable jury would, without doubt, do?
Not only is it a matter of extreme difficulty to exercise that jurisdiction, but it is—as I think the Lord Chief Justice said—really usurping the jurisdiction of the constitutional authority—namely, the jury. It is a jury which has to convict in criminal cases; and if the Court of Criminal Appeal exercise peculiar jurisdiction under the proviso, they have really to usurp the function of the jury. What is advocated by the Lord Chief Justice and those of us who take the same view as he does is, not that the Court 772 of Criminal Appeal should usurp the function of the jury in that way, but that the matter should be again committed to the constitutional authority—namely, to the jury—and that the man concerned, instead of his conviction standing, should have a further trial and a further chance of being acquitted.
§ VISCOUNT SIMON
May I ask my noble and learned friend, in order to be sure that I understand him, whether it is his view that in a case in which a mistake in procedure was quite immaterial, the existing law really usurps the functions of the jury, and that instead of doing what the Court of Criminal Appeal constantly does now in such cases, it would be better to have a new trial? I cannot think that that would be the view of many who are concerned with administering the criminal law.
§ LORD OAKSEY
What I was saying was that when the Court of Criminal Appeal exercise the power which was conferred upon them in the proviso, they are, by virtue of the Statute, taking upon themselves the function of the jury—that is to say, of convicting the prisoner although there has been some departure from the law. I submit to your Lordships that that is not only a usurpation of the function of the jury but that it is a most difficult jurisdiction for the Court of Criminal Appeal to exercise. They have over and over again expressed the difficulties which they feel in exercising that jurisdiction, and in a case recently before your Lordships' House, in which the Attorney-General had granted his fiat, your Lordships felt the same difficulty. I wish to add only these reasons to the reasons given by the Lord Chief Justice and to say that I support him.
I ought perhaps to add this—that I recognise the strength of the argument which has been presented by the noble and learned Viscount. Lord Simon, as to the possibilities of publicity. I think that that is by far his strongest argument against the arguments of the Lord Chief Justice. But, as a matter of fact, I do not think that previous convictions are, as a rule, publicised in the newspapers. Of course, I apprehend that if there were to be a re-trial, the fact that it was a re-trial would inevitably be known to the jury, but the details of previous convictions are most unlikely to be known to them. Of course, the danger always exists, 773 to a certain extent, from the evidence having being gone into before magistrates. In cases of notoriety there is always that difficulty. But I do not consider that that is really an argument which overbalances the other arguments which were in favour of the suggestion of the Lord Chief Justice.
§ 5.37 p.m.
§ LORD SCHUSTER
My Lords, rising, as I do, from a seat next to my noble and learned friend, Lord Simon, I naturally rise with very considerable diffidence. There has, apparently, been some doubt whether the noble and learned Lord, the Lord Chief Justice, was or was not Lord Simon's pupil, but there is no doubt at all that I was his slave for quite a number of years. Quite frankly, I greatly fear that I may incur his wrath and arouse his displeasure, because most of what I have to say must necessarily be in criticism of the powerful arguments which he addressed to your Lordships. I have very little to add to what the noble and learned Lord the Lord Chief Justice said. The main question with which I should like to deal is that of the principles which were laid down by Lord Loreburn—as related by the noble and learned Viscount Lord Simon—in 1907, and which the late Lord du Parcq laid down in this House in 1948—the essential principles of English criminal justice
The essential principle of English criminal justice, for which I am contending, and for which I understand my noble and learned friend the Lord Chief Justice is contending, is that criminal trials should be conducted before a Judge of the High Court, assisted by a jury, in public, with the evidence given on oath, the truth of the testimony before the court being tested by examination and cross-examination. Lord Goddard is not desirous, any more than I am, that a person should have another barrel to his gun, so as to have a chance of getting the rabbit with the second if he misses it with the first. What we contend is that these extra-judicial inquiries, however conducted, and however eminent and learned (as Mr. Gerrard no doubt is) and however judicious and merciful in mind the person conducting them may be, cannot and ought not to satisfy the public mind, and that they do injustice to all those who appear before them. What has happened in this case? 774 I think that my noble friend was a little at sea about additional evidence. The additional evidence in this case, apart from absurdities like the man who gave himself up for having committed the crime—which does not matter because that is constantly happening—was the evidence of the two girls who stated that June Bury had told them she had committed perjury The rest was doubtful and I do not think would have troubled the right honourable David Maxwell Fyfe at all. But the statement placed before him by these two girls, that June Bury had told them it was not Devlin but another man who had committed the crime, caused the Secretary of State to regard that as a matter which must be investigated.
What would have happened if a new trial had been ordered? These two men, Burns and Devlin, would have been brought before a court on the precise charge of murder. They would have known exactly where they stood, no irrelevant issues would lave come before the court; the court would have had all the evidence produced at the first trial and which had arisen since then. The witnesses would have been examined and cross-examined and tested in every way, and would have spoken under threat if they committed, perjury. These semi-judicial and extra-judicial inquiries lead almost inevitably to some kind of amnesty for witnesses, as the Director of Public Prosecutions seems to think, and he is a man of great discretion, judgment and learning. The people who gave evidence before Mr. Gerrard did not come within the threat of criminal prosecution for perjury, because they did not take an oath. Their evidence was not so substantiated. Suppose the man who had committed the burglary in Manchester had come forward so as to destroy the statement of Burns and Devlin that that was their alibi. Is it to be said that he should be allowed to go scot-free? And if another man had convinced Mr. Gerrard that he (the other man) had in fact committed the murder, does Sir Theobald Mathew's letter mean that this man must be indemnified for ever and cannot be tried?
What I want to see is that criminal accusations should come before a competent court, in accordance with the essential principles of our law, the accused should be convicted, or not 775 convicted, when the due forms of justice have been observed, not because they are forms but because over a great many years we have gradually come to see that they are the best forms for securing the liberty of the subject when charged with a crime and for securing the safety of the community against those who commit crimes against it. That is the only principle for which we are asking here. We are not asking for additional means of attacking accused persons, who may be guilty or innocent. It is said that the second trial cannot be fair, and my noble and learned friend Lord Simon has presented this argument with all ingenuity and eloquence. In a sense that is true, because persons who come to give evidence before the court have given their evidence before, and it is probably already known to the jury. But which is fairer: that all the witnesses who told their stories before Mr. Gerrard should appear before the court and be examined and cross-examined, and under the penalties of the law if they commit perjury, or that they should be in a closed room, not examined or cross-examined by anybody and tell their untested stories? I think it would be fairer if the Court of Criminal Appeal were able to order a new trial.
It is said that in 1906 eminent lawyers on both sides of the House were against the suggestion that power to order a new trial should be conferred on the Court of Criminal Appeal. Up to that time there was no court which strictly could be a court of criminal appeal. There was the Court of Crown Cases Reserved, in which points of law which Judges might reserve in the trial of a case went to be heard. Forty-six years of experience of the Court of Criminal Appeal by the community, and the growth of opinion and practice in the Court itself, surely present us now, in 1952, with a wholly different set of circumstances from those of 1906. The time has surely come to do that which all logic asks us to do and grant this new power to the Court of Criminal Appeal.
In 1948, when an Amendment passed in your Lordships' House granting this power to the Court of Criminal Appeal was rejected by another place, we lay down to it and did no more about it. Whether it was wise for us to withdraw 776 before the attitude of another place I do not want to say now. The Lord Chief Justice says that we should have lost the Bill, if we had not done so. I should not have cared very much, because I thought it a bad Bill and I was willing to lose it if I had had anybody to vote with me. That withdrawal in the face of another place was not made with the desire of the House,, nor did it indicate any change of mind on the part of the House. The situation was that we had negatived the clause in the Bill abolishing capital punishment for murder which the Commons had passed, and as we were likely to clash with another place on that point it was thought, perhaps wisely—I never know whether or not it is wise to make terms with the enemy—that it was better not to fight another place on both fronts. On that ground we withdrew. I cannot speak for everybody, but I can speak for those responsible for the Amendment, and it was only on that ground that we withdrew, and not in the least because we assented to the proposition which the noble and learned Viscount, Lord Simon, has laid down this afternoon.
I want to emphasise this further point, on which there is a great deal of misapprehension in the public mind. It is commonly believed that in seeking this power for the Court of Criminal Appeal, we are in some way giving a fresh means of attack on an accused person. That is not so. This power can be exercised only when the accused person himself has come to the Court of Criminal Appeal. If he does not want to run the risk of a second trial, there is no reason why he should accept that risk, but from the point of view of the accused person is it not better that the conviction of which he complains should be investigated by a tribunal like the Court of Criminal Appeal rather than by an individual Commissioner appointed by the Home Secretary?
§ 5.50 p.m.
§ LORD WRIGHT
My Lords, I want to say a very few words, but I feel that I ought to express my agreement with the view put forward by the Lord Chief Justice on this occasion. He speaks with unrivalled experience, and I feel that the House ought to be grateful to him for bringing to their notice a case of this sort and suggesting the remedy for the 777 undoubted evil involved. This is not a case of a man who has been acquitted being again brought before the court by the prosecution; it is not a case of a re-trial of an acquitted man. The acquittal is final, according to English law, and there is an end of it. This is a very different case, of a man who has been convicted saying: "My conviction is wrongful, and I want an opportunity of bringing before the proper authority reasons why that conviction should not stand." That is the sort of new trial which is under discussion here. If the new trial is granted, then the man can bring forward his evidence, poor as it may be, and he will be heard; he will have a fair trial before a jury, and the statutory judge will be able to pronounce their verdict. That is a very different case from the case which the noble and learned Viscount, Lord Simon, has so strongly and forcibly discussed, of a suggested new trial of a man who has been acquitted.
Probably the real point to which attention should be drawn in a case like this is the undesirability of informal, unsworn, and almost unjudicial inquiries where, after conviction, a real point is raised which throws doubt on the validity of the conviction. There it is said by the Lord Chief Justice, and most forcibly so, that there ought to be a power in the Court of Criminal Appeal to say that there should be a new trial. Of course, that is a power which they would exercise only in proper cases: they have heard the whole trial, and they can judge what is the proper course to adopt. If they think the convicted man has adduced sufficient material to justify his having his case re-heard and reconsidered, then it is suggested that the Court of Criminal Appeal should have power to order a new trial. I venture to submit that the reasons which the Lord Chief Justice has adduced would fully justify a change in the law to that effect.
§ 5.56 p.m.
§ VISCOUNT HAILSHAM
My Lords, the temptation of an obscure member of the junior Bar to take part in a debate which has hitherto been illumined only by the brightest stars in the legal firmament has proved irresistible. I trust, therefore, that your Lordships will bear with me for a few moments. I have at least this title to intervene: I believe that I am the only person present in this 778 Chamber to-day who look part in the debate in the other place in 1948. I do not think it would be in order for me to refer in any detail to the speeches made there, but of one thing I have the liveliest recollection—namely, the hour of the day at which that debate took place.
It took place, so far as I remember, between 2.30 and 3 o'clock in the morning, and certainly, speaking for myself, I felt a good deal of alarm and despondency when I read in Hansard the following day the sentiments I had expressed at that hour after what had proved an exhausting debate in the earlier part of the evening on a totally different topic. I therefore think that, great as is the respect which will naturally be paid by this House to the arguments put forward in the other place on that occasion, there will also be borne in mind certain other considerations which may have the effect of leading your Lordships to suppose that they are not necessarily conclusive. If the arguments of 1948 are not conclusive, then I hardly think that greater weight should be paid to the arguments of 1907, because, as the noble Lord, Lord Schuster, observed, it is undoubtedly the case that since then we have had forty-four years' experience of the working of the Court of Criminal Appeal. Even the highest legal opinion has sometimes erred when seeking to anticipate what the results in practice of a particular reform are likely to be.
It is supposed, and, I think, wrongly supposed, that in practice the proposed reform would operate unfairly to the accused. I do not knew that it matters! in particular whether on balance, pro- vided that justice is done, it helps the I accused more than it hinders him, because I venture to hold the slightly unpopular view that the; object of justice is to convict the guilty and acquit the innocent, and not to provide a sort of fox hunt according to conventional rules which must not be broken on either side. It is my opinion—and I think it is relevant to state it—that if the reform were granted it would, on the whole. benefit the accused.
My own experience of addressing the Court of Criminal Appeal is a relatively modest one, but I have not been able to resist the conclusion that one of the difficulties of counsel for the appellants is that the court is often put in an impossible position. Either it has to acquit 779 somebody who, in the safety of this Chamber, one can call an obviously guilty man, or it must invoke the proviso to the Act which permits the Court to override a mistake in the procedure where it is obvious that no miscarriage of justice could be effected by so doing. I believe the effect of the reform would be that a larger proportion of appeals would be successful—not a very much larger proportion, I hope, but a significantly larger proportion—because I believe that the Court of Criminal Appeal would find it possible to send down for re-trial a number of cases where, at the present time, in practice, the Court finds it necessary, on the grounds of justice, to refuse the appeal. That is, I admit, a personal view, but it is none the less the opinion that I hold.
The noble and learned Viscount, Lord Simon, says that it is a fundamental principle of our criminal justice that a man may not be put in peril twice; that he may not be put in peril again once he has received the verdict of a jury, whether it be one of acquittal or conviction. But in answer to that contention I venture to submit that this argument, ingenious as it sounds, is really nothing more than a petitio principii—it begs the question. If you have not a Court of Criminal Appeal, as we in this country had not until 1907, a man cannot be put in peril twice after the verdict of the jury. Either he is acquitted, in which case he is not guilty, or he is convicted, in which case he is punished; or, of course, there is a disagreement, in which case there is no verdict of the jury. Therefore, not very much can be placed upon what is supposed to be this fundamental principle until 1907. But if the power was granted to the Court of Criminal Appeal to order a new trial, ex hypothesi any verdict of the jury which there may have been would be set aside before the re-trial was ordered. In other words, the fundamental principle would not be interfered with. The position would be identical with the situation where the jury had disagreed, since no verdict of a valid kind would have been given.
Then it is said that a new trial would be unfair to the accused. I do not myself think that that is so. It is true that the jury, or some of them, might be supposed to have in mind the fact that the accused had been tried and found guilty 780 at the previous trial. But they would also have in mind that the Court of Criminal Appeal had reviewed the previous trial and had pronounced it to be unsatisfactory. I cannot myself believe that a jury, with both those sets of facts in mind, would necessarily set out with the idea that the accused was guilty. I must say that I am not altogether so impressed with this argument as I should have been were it not for the reflection that it must ultimately be, in effect, the accused himself who has asked for the new trial. It is true, no doubt, that he would have preferred his conviction to be quashed—so would anybody who has been found guilty—but the machine could not have been set in motion except by his own hand, after conviction; and if he were so terrified that unfairness would result, I rather doubt whether he would take that action.
In my submission, the experience of the Court of Criminal Appeal has proved that in a number of cases a new trial is desirable, and one of those cases is undoubtedly the case where an appellant desires to bring forward fresh evidence. There have now been three or four quite different cases, including that to which the Lord Chief Justice has referred, in which the Court of Criminal Appeal have emphasised the dilemma in which they are placed. How can they pronounce upon the alleged fresh evidence by simply hearing the new witnesses themselves? Sir Travers Humphreys, in a well known judgment—I think it was he—pointed out that it was impossible. In order to be certain whether the fresh evidence is to be believed or not, and if to be believed what weight is to be placed upon it, it is necessary for the court listening to the new witnesses to see and hear the old witnesses as well, because otherwise their judgment on the new witnesses must necessarily be fallacious and imperfect. On the other hand, when the Court of Criminal Appeal is not allowed to do more than pronounce, because it is refused permission to order a new trial, it is unable to hear the old witnesses and, therefore, it cannot pronounce at all. That is a situation which may operate very seriously to the disadvantage of the appellant, amongst others, as those who have heard some of the recent decisions could not fail to understand.
Then it is said that the Court of Criminal Appeal is not to be trusted to 781 use its powers sparingly. I am not sure what weight is to be attached to that argument. I have heard it used of Govments by Oppositions in many stages of many Bills in Committee in both Houses, and I think there the argument has a good deal of weight. But when we are dealing with one of our responsible courts of justice we should not, I think, assume in advance that they are likely to misuse the powers which we give them. From the experience of appellate courts of all kinds there is ample reason to suppose that, in fact, the power to order a new trial, where it exists, is somewhat sparingly exercised. I think it is a fair assumption that the Court of Criminal Appeal, had they this power, would exercise it even more sparingly than they do in their civil jurisdiction. We have, above all things, the experience of the Privy Council, who have a jurisdiction of a different kind, to know how sparingly such jurisdictions are exercised in practice. Nor am I personally convinced that it would be beyond the power, either of the Parliamentary draftsmen, or of the Government, or indeed of numerous members of your Lordships' House, to draft a clause, were it so desired, in such a way as 10 make it plain that Parliament intends that the jurisdiction shall be exercised only most sparingly. For these reasons, I remain of the same opinion as I did in 1948, fortified now by having heard a series of distinguished speeches in your Lordships' House.
§ 6.7 p.m.
§ LORD OGMORE
My Lords, when I came down to the House this afternoon I had no intention whatsoever of intervening in this debate. Indeed, I came to hear a series of legal Tritons expounding this most important topic. In particular, I wanted to hear the Lord Chief Justice, to whose speeches on this question I always listen with great pleasure. Just after the Lord Chief Justice started speaking, my noble and learned friend Lord Jowitt informed me that he had, unfortunately, to leave your Lordships' Chamber on an important matter elsewhere. He asked me to apologise to your Lordships for not being here. He had intended to speak, and he asked me to say a few words from these Benches, so a legal minnow will now swim with the Tritons.
I am, nevertheless, somewhat glad to have the opportunity of speaking on this 782 matter, because I had some years of experience in criminal matters as a lawyer at the Colonial Bar, as a solicitor in this country and also as a teacher of law. I have long been of the opinion that the reform advocated by the Lord Chief Justice should come into being, and should form part of our judicial system. This afternoon we have heard a series of arguments extremely well put on both sides. The arguments, have adduced all the questions for and against the principle we are considering. The Lord Chief Justice summed up the arguments for this principle, and his remarks were corroborated by a number of eminent lawyers, including, if I may say so, the noble Viscount who has just sat down. There is no need to go over the arguments which they have mentioned, because I entirely agree with them. And so, I believe, does my noble and learned friend, Lord Jowitt.
On the Report stage of the Criminal Justice Bill of 1948 my noble friend Lord Jowitt recalled to your Lordships that he had discussed this matter not only with the present Lord Chief Justice but with three of his predecessors, and he said that all these eminent Judges had agreed that such a reform as is now advocated should come into being. My noble friend Lord Jowitt told your Lordships, on that occasion that he was much impressed by the weight of testimony of these learned Judges who, after all, are more concerned than anyone else with this matter. Then my noble friend went on to say [OFFICIAL REPORT, Vol. 157, col. 181):… I feel that His Majesty's Judges do know something about this topic. That being so, I should myself be in favour of conferring upon the Court of Criminal Appeal power to order a new trial. I stale at once that I think it is a power that ought to be very sparingly exercised. I am certain that it would be the view of the Court itself that such a power should be seldom exercised.I understood from the Lord Chief Justice to-day in his speech that he agreed with that view.
The experience of my noble and learned friend is this. He supported this suggestion in Committee and, as I have said, on the Report stage he moved an amended clause. There was a Division on Report and, as your Lordships will remember, the House supported my noble and learned friend. The decision was not 783 by any means taken on political grounds; there were noble Lords on either side who thought differently on this question. Later, when the Amendment went to another place, the then Attorney-General told my noble and learned friend that there was very little chance of getting this measure through the other place with this particular clause in it: that the clause would certainly be struck out there. That was his opinion, and in view of that opinion my noble friend abandoned this particular clause. As the noble Viscount said, there were lawyers in the other place at that time, including the present Solicitor-General, who were in favour of the clause, but they were said to be in a minority.
The arguments against this suggestion were put by the noble and learned Viscount, Lord Simon. They are twofold. The first—and the House has been told this by a number of noble Lords—was that it is against British practice to put a man in peril twice for the same offence. The object, of course, is to prevent a man who has been acquitted from standing trial again, and, equally, in the case of a man who has been convicted, to prevent him from being punished again for the same offence. But here, of course, neither would happen, and I should have thought that giving the Court of Appeal the right to order a re-trial would come well within the scope of the maxim—and, indeed, should reinforce it. As the noble Viscount, Lord Hailsham, has said, no one need be put in peril if he does not want to be.
As regards the other point, that the second trial would not be fair because of the publicity attracted by the first, we feel that this argument has some merit. It was put strongly by the noble and learned Viscount, Lord Simon. However, as the noble and learned Lord, Lord Oaksey, has pointed out, proceedings before the magistrates are now widely reported, and in all probability they are widely reported in the district from which the man has come not long before the trial at assizes or quarter sessions takes place: whereas after a fairly considerable period has elapsed, the mind of the average citizen being what it is, he is highly unlikely to remember what has been said weeks or months before.
§ VISCOUNT SIMON
I did not interpose before, though I heard the same observation made by Lord Oaksey. There is a misunderstanding. I was not making any reference to proceedings before the magistrates. You can no more prove before the magistrates that the man had been previously convicted than you can at the assizes. That is not the point. The point is that, after a man has been convicted, though for the first time, his whole past record is made public; and, as my noble friend knows well, in certain cases there is notoriety, for the newspapers publish detailed accounts of the man's previous evil life. It is nothing to do with evidence for proceedings before the magistrates, for the magistrates could not hear any of this evidence any more than the jury could until after conviction. There is clearly a misunderstanding.
§ LORD OGMORE
There is no misunderstanding, so far as I am concerned. I was going to say that this was a strong point in the noble and learned Viscount's favour. Proceedings before the magistrates are often widely reported, but previous convictions will not have been published then, whereas in the second case they would be reported. It is on that point that the noble Viscount's case has merit. I give him the merit of that particular point. There is no case in history which is absolutely black or absolutely white, 100 per cent, sound or 100 per cent, unsound. There are always considerations for and against; and this seems to me to be a strong point for the case put by the noble and learned Viscount. There is, therefore, no misunderstanding so far as I am concerned. But we have to take the points for and against and weigh up the good and the bad; and I personally feel, and my noble and learned friend feels, that, on balance, in spite of the important argument put forward by the noble and learned Viscount, this is a reform which should be brought about. We should therefore like to see the Court of Criminal Appeal have the extra power which the Lord Chief Justice has suggested for it. We also feel, however, that as this proposal was turned down in 1948, it is a little early yet to bring it up again in any legislative form. We are of the opinion that the Lord Chief Justice and others who feel this way will have to do a good deal of hard ploughing in the wilderness before the legislative minds of 785 the nation and of the two Houses of Parliament are ready for such a change.
There are two other matters to which I should like to draw attention. They are very important matters, which arise as a sort of corollary to the argument of the Lord Chief Justice. The first is with reference to the letter in Appendix 1 of the inquiry by Mr. Albert Denis Gerrard. My noble and learned friend Lord Jowitt and I regard this letter as being an improper one. We feel that it must be read and must have the plain meaning that the words import. So far as we can see, it means that anyone who gave evidence—not evidence on oath, but testimony, or whatever you like to call it—whatever that testimony might be, even if it meant that the man had committed burglary or murder or perjury, he would not be proceeded against by the authorities in this country. I see the noble Viscount, Lord Waverley, sitting there. The noble Viscount has had great experience at the Home Office. Other noble Lords who have been Home Secretaries are also here, including the noble and learned Viscount, Lord Simon. I should think that this is the first time in history that any such letter has been written by a public servant in a matter of this kind. I should have been surprised if any such letter were written during the term of office of any of these noble Lords at the Home Office.
One other point which I wish to raise, with the support of my noble and learned friend, is this. I believe that the Home Secretary ought not to act in the way that he has acted in this instance. We believe that it is quite wrong for him to appoint a Commissioner and to publish a White Paper and to do the things he has done in this case. It is an undesirable practice and a breach with tradition and with all former practice in the Home Office. We think the Home Secretary should use such agencies as he thinks fit and make such inquiries as he thinks desirable, and not reveal to the public the method by which his views, and the advice which he gives to Her Majesty, have been formulated. With these criticisms of the action, both of the writer of the letter and of the Home Secretary, I support the strong arguments, as I feel them to be, of the Lord Chief Justice, and I beg to commend his suggestion to the House.
§ 6.20 p.m.
§ LORD MANCROFT
My Lords, before the noble and learned Lord on the Woolsack speaks, may I make one point in criticism of the otherwise excellent speech which the noble Lord, Lord Ogmore, has just delivered to the House? Whilst commending the Lord Chief Justice's views, he has suggested caution, and said that the time may not yet be ripe to bring up again a matter which did not find much favour in another place but a few years ago. But surely the case is not parallel. The reason it did not find favour a few years ago was not so much upon the merits of the case as upon the highly political arguments attending upon other clauses of the Bill. There was involved in the Bill not only the wholly controversial question of the death penalty, but also a highly controversial timetable which made it imperative for the Bill to be hustled through. So far as I remember, was not upon the merits of the case which we are now discussing that the Amendment was dropped, but because by general opinion it was considered advisable to withdraw it at the time and say no more. With great respect, offering my humble support to the Lord Chief Justice, I hope that he will not be discouraged by the advice of delay which the noble Lord, Lord Ogmore, has just offered him.
§ LORD OGMORE
My Lords, may I say, in answer to the noble Lord, Lord Mancroft, that, so far as I remember, I was abroad on Government business in 1948, and I did not hear many of the strong arguments put forward by the noble Viscount, Lord Hailsham, and others at the time, I came back, I know, just in time to vote in favour of the death penalty, but, apart from that, I was out of the country at the time. My authority for the statement I have given to the House is my noble and learned friend, Lord Jowitt. I have explained what happened—that the then Attorney-General said that the climate of opinion in another place was not such as would accept this clause. My noble and learned friend did not tell me that this was bound up in some way with the death penalty. I had not realised that. It may be so. I do not want to "damp down" the Lord Chief Justice at all. I am supporting him. I say only that I do not think that 787 the present is a good time to bring forward this matter in a legislative form. More propaganda is needed before action is taken.
§ 6,23 p.m.
§ THE LORD CHANCELLOR (LORD SIMONDS)
My Lords, I think your Lordships would wish me, in a matter vitally affecting the administration of the criminal law, to say a few words from this place, but I must make it quite clear that the view which I am expressing is my personal view. This is not a matter which has been considered by Her Majesty's Government, nor, if I may venture to say so to the Lord Chief Justice, is there yet such a weight of opinion behind his views as would justify Her Majesty's Government in now introducing legislation, even if—and this is a very big "even if"—there was room in our crowded legislative programme for the introduction of a measure which is certainly controversial. But if I may now give my personal view, it is most emphatically in favour of that which the Lord Chief Justice has pronounced—and so it has been these many years. I beg him to go on "ploughing the wilderness" in the hope that in time he may overcome the anti-prejudices of his master—I hope I have put the epithet in the right place. He will remember how many years those who advocated anti-slavery measures had to bring their Bills before the other House and this House at the end of the eighteenth and the beginning of the nineteenth centuries. It often takes a long time for the beneficent reform to find its way into the heart of the public. I beg him to go on with his crusade, and in time I feel sure that the Court of Criminal Appeal will have the power which he postulates for it.
May I, in a very few sentences, say why I am in favour of the Lord Chief Justice's view? In doing so I realise that I shall only be repeating what has been said; I am in the position of one summing up. These are the considerations that move me. I believe that experience is more valuable than any a priori view, and in the fellow members of our Commonwealth we have the experience of a good many years of a Court of Criminal Appeal with just this power to order a new trial. Although, of course, one cannot prove a negative, and although, if 788 this became a matter of immediate legislation, I should certainly cause further inquiries to be made, I believe that those fellow members of our Commonwealth, inheriting their Common Law and system of legal procedure in criminal matters from us but introducing this system of giving to the Court the power to order a new trial, have found that this power has not militated in the least against the due administration of justice. That is a powerful argument.
Secondly, I believe that there is much force in the argument that almost without exception, but not quite, our own judges entrusted with the administration of the criminal law, whose duty it is to secure freedom for the innocent and to punish guilt, demand that, in the interests of justice, this power should be given to, the Court of Criminal Appeal. I have heard it said that it is contrary to the principles of British law, and contrary to the principles of British justice, that this power should be given. Who for centuries have been the guardians of the principles of British justice but the judges from whom these proposals now proceed? I, for one, should hesitate long before I dared to say that a proposal backed by the Lord Chief Justice of England, by Sir Travers Humphreys and by their predecessors who have sat for forty years in the Court of Criminal Appeal, was in any way contrary to the principles of British justice which they maintain.
This argument—I say it with the greatest respect to the noble and learned Viscount, Lord Simon—appears to me to be really a misconception of the position. The noble and learned Viscount said that a fundamental principle of British justice is that a man should not be put in peril twice: that having been convicted once he should not be convicted again. A man who is tried and convicted and appeals and is ordered to be tried again does not suffer the peril twice. It is all one peril that he is suffering. He is convicted and he chooses to appeal, and, if this proposal is accepted, he gets the benefit of a further chance. I venture to think that that is no infraction whatever of the elementary rule of justice, that a man should not be put in peril twice. After all—I say it with deference—is it not really paying tribute to a shibboleth? "A man is not to be put in peril twice"—that was a maxim that was developed 789 at a time when there was no right of appeal. But the whole aspect of the criminal law has changed. As soon as the criminal is convicted he has a right to go to the Court of Criminal Appeal and say: "I have been wrongly convicted."
There is one matter on the other side that has weighed with me, as it has with others of your Lordships. Of course there must be arguments on the other side or we should not be discussing the matter here; it would have gone through long since. That matter is the fear entertained by the noble and learned Viscount and by others that there may not be a fair trial. That is a matter to which the noble Lord, Lord Ogmore, referred—the fear lest a man who has been tried and convicted, upon a second hearing may not get a fair trial. because the jury may know too much about the case. I wonder how much there is in that fear. Here, again, I should venture to put a great deal of faith in those who, unlike myself, have had a lifelong experience of criminal trials. One is not to suppose that that consideration has not weighed with them when they advocate that this new power should be given. That being present to their minds, they yet think that it is not a consideration which should outweigh the considerations on the other side.
I doubt very much whether anybody can form an opinion as to the extent to which, if at all, that consideration would militate against a fair trial of a prisoner who is ordered to be retried. At any rate with me, it does not weigh in the scales against the other considerations applied to the question. Therefore, my Lords, for those reasons, I am, as I have been, strongly in favour of the view of the Lord Chief Justice. On this occasion the Lord Chief Justice of England links his proposal with events that have recently happened. I quite agree with him that one of the reasons—and a cogent one—for giving the Court of Criminal Appeal power to order a new trial, is the possibility of fresh evidence being adduced to which the Court of Criminal Appeal cannot, themselves, properly listen. I think that that is a very cogent reason.
The Lord Chief Justice has dealt specifically with the appeal against conviction for murder by Devlin and Burns, 790 and with the action of the Home Secretary. The Lord Chief Justice was careful to say that he did not in any way criticise the action of my right honourable friend, the Home Secretary, in the course which he took. On the other hand, the noble Lord, Lord Ogmore, did venture upon some criticism of it. That puts me in rather a difficult position, because if an attack is to be made upon the conduct of the Home Secretary, it is in another place that that attack should be launched, and not by way of a side wind on the Motion of the, Lord Chief Justice. For my part, I say emphatically that the Home Secretary took the course that he was bound to take. Here was a case where a man's life was at stake, and in advising Her Majesty how to exercise the Royal prerogative of mercy he was hound to take every step that was open to him to see that an innocent man should not suffer. As the Lord Chief Justice said, this may very well be an argument for giving a new power to the Court of Criminal Appeal, but as that Court had not that power my right honourable friend was bound to take the steps he took to see whether there was any truth in the allegations which had been made, both in regard to perjury and in regard to confession.
§ LORD OGMORE
I hope the noble and learned Lord will excuse my intervention. I do not think he would wish to misrepresent what I have said. My point was that I quite agree that the Home Secretary should take all the steps necessary to satisfy himself as to the truth of the allegations in order to make his advice to Her Majesty as sound as possible. What I said was that I think it is undesirable that both the fact of the Commission should be noted and that a White Paper should be published with the result of the Commissioner's findings. I maintain that the facts upon which he bases his conclusion should be for him, and for him only.
§ THE LORD CHANCELLOR
If I misunderstood the noble Lord, I apologise. I understood that his criticism ranged more widely than that. At any rate, let me say that in my view the Home Secretary was well entitled to take whatever steps he thought necessary in the interests of justice; and if, in his view, it followed that the allegations that were made should be investigated by an 791 impartial Queen's Counsel as being the best person to test the statements that were made, that was the proper course for him to take. I may add that in doing that he was not creating any new precedent, but was following exactly the precedent adopted in December, 1946, upon the conviction for murder of one Walter Graham Roland, who was convicted at Manchester Assizes on December 16 of that year. On that occasion, the Home Secretary invited a learned King's Counsel, Mr. Jolly, to make a report. The terms of reference were substantially those which were given to Mr. Gerrard in this case. Mr. Jolly made that report, and in 1946 the Home Secretary of the day duly published it as a White Paper. May I say that the Home Secretary has a very difficult question to decide? I would concur wholly with what the noble Lord said, that it is very undesirable that publicity should be given to these matters if it can be avoided. But in the exercise of his discretion, the Home Secretary may very well conclude that there is a degree of public anxiety which can be allayed only by publication, and I have no doubt that it was that consideration which moved the Home Secretary in 1946 and the present Home Secretary in 1952—I have not had an opportunity of consulting with him, as I heard for the first time this evening that this matter was likely to be raised.
Another criticism was made—and again I have been somewhat in difficulty because of it. The Director of Public Prosecutions, whose letter has been criticised, under the Statute acts under the supervision of the Attorney-General, who in criminal matters is responsible, and I venture to think that it would be a great breach of our Constitutional principles if anybody were to interfere with the Attorney-General in the exercise of that jurisdiction. I believe that your Lordships would be left under a grave misapprehension if you thought that there was any impropriety in the action of the Director of Public Prosecutions. I am afraid it is commonplace that, in order that justice may be done, immunity is, on numerous occasions—I would say innumerable occasions—offered to those who are participants in a crime. Common examples are cases of abortion and of corrupt practices, where it is necessary to promise 792 immunity if evidence is given by those who alone can assist in the conviction of guilty persons. It may be that this is an example in a slightly different field of just that aspect of our criminal law, which cannot be properly administered without its occasional exercise. So, on the spur of the moment, I have had to deal with this matter, and I beg your Lordships not to think that the Director of Public Prosecutions has been guilty of any impropriety whatever in the course which he has taken. My Lords, at much greater length than I had intended, I have said what I wished to say both upon the general and upon the particular aspect of this problem. I heartily support the Lord Chief Justice and wish him well, if not this year, then next year, and if not next year, the year after.
§ 6.39 p.m.
§ LORD GODDARD
My Lords, I find that I have so much support from your Lordships in regard to this Motion that it is unnecessary for me to take up much of your Lordships' time in replying. With regard to the two principles which my noble and learned friend Lord Simon put forward as Lord du Parcq's fundamental principles, I will say no more about the first—that it is a fundamental principle that a man should be convicted or acquitted once and for all—except this. Before 1908, if a man was acquitted there was an end of the matter, as there is now. If he was convicted, you directed him straight over to the executioner, if he was a murderer, or to the governor of a prison if he had been sentenced to imprisonment. And there was an end of the case, because there were no means of appeal.
In 1908 the Court was given power to inquire into a conviction, and to consider whether the conviction ought to be quashed or should be allowed to stand. A corollary to that—because it is unsatisfactory in the highest degree to have to quash a conviction when you feel morally convinced that the man is guilty—is that you should be able to order a new trial. And the same applies in other cases where the Court feels there really is some doubt as to whether the man is guilty or not. We cannot substitute ourselves for a jury, and it is highly unsatisfactory in the latter type of case that a man should not be given a further chance of being acquitted. The point which has, I think, caused most concern to your Lordships is 793 whether, on the second occasion the man would get a fair trial. There, again, many of your Lordships have pointed out that it is the man who, in effect, asks for a new trial; and if the court granting a new trial had the smallest fear that in any particular case the man might run the risk of the jury knowing too much, it could always order that the trial should take place in another county. There would be no difficulty about that. If the case had been tried originally in a small county, where the local newspapers had published reports of the proceedings, it would certainly be very difficult to find a jury which had not heard about it. But in places like the Old Bailey, which covers the enormous Central Criminal Court district, or the courts at Birmingham or Manchester, which also cover great districts, I do not suppose that juries hold these things in their minds or would be likely to do so.
Moreover, speaking from a long experience—though it may have happened; I do not say that it has not—I do not remember an instance of the evidence of the police inspector, who conies at the end of the trial to give the previous convictions, being published in the Press. Sometimes, as my noble and learned friend has said, newspapers have published details of a man's life, but they have now been shown pretty firmly by the courts that they must not do that while an appeal is pending, or while there is the possibility of an appeal. Therefore, by the time the case came before the Court of Criminal Appeal there would have been no publication, nor would there have been any publication after the court had ordered a new trial, or the editor responsible would go to prison for a very long time.
There are two other matters with which I should like to deal very briefly. My noble and learned friend Lord Oaksey referred to the proviso, as it is called. The proviso is to the effect that, while a court is of opinion that the question of taw might be determined in the favour of the appellant, they may dismiss the appeal if they are satisfied that there has been no miscarriage of justice. I confess that there are cases when one is strongly tempted to apply the proviso, because one very often feels the moral conviction that the man appealing is guilty. But there it is. I do not say that the proviso is very freely used. 794 but it is used from time to time. But if we had this power, which I am suggesting we should have, it would surely be more satisfactory to the prisoner and to everyone else. Instead of a court saying: "We are going to say the jury ought to have found you guilty in spite of this misdirection or whatever it be," they would be able to say: "You shall go back and have another trial, with proper direction, and we shall see what the jury does then."
The other matter upon which I wish to touch is this. I repeat that my Motion was not intended in any way as a criticism of the Home Secretary, because I agree with the noble and learned Lord who sits on the Woolsack that what he did was really all he could do. I have brought this matter up now, although I am conscious that it was debated here only four years ago, because I think that the recent case of which I have spoken shows how desirable it is that the Court should have this power so that the Home Secretary should not be placed in the position in which he was placed. My Lords, I ask leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.