§ 3.10 p.m.
§ LORD MESTON rose to ask Her Majesty's Government whether they will consider introducing legislation to provide that a person who is acquitted of a criminal offence shall in all such cases be awarded costs in his favour; and to move for Papers. The noble Lord said: My Lords, I am under no illusion as to the result of this Motion. I am a voice crying in the wilderness, and I am opposed by about 500 brick walls. However, it may be that there is a ray of light somewhere. I want to be corrected if I am wrong, but I understand that 425 there is a presumption of innocence which, rightly or wrongly, we all enjoy from the date of our birth: every man is presumed to be innocent until he is proved to be guilty, and the operative word is "guilty". The presumption of innocence is not that every person is presumed to be innocent unless he conducts himself in such a way as to create an impression that he might have committed an offence.
§ Let me get to the point. Suppose I get gloriously drunk in Hyde Park one night (it makes me feel 40 years younger to think about it) and I am taken in charge and put in the cells. I will not ask your Lordships anything about that; it might be rather embarrassing. The next morning I appear before the magistrate, and, either because I am very cunning or because the evidence for the prosecution is not sufficiently strong, the magistrate, acting very fairly and in the best judicial manner, acquits me of the offence of drunkenness. I am not half acquitted or half convicted; I am entirely acquitted. I am not half fined or half not fined; I am not fined at all. I am not half sent to the house of correction for a period; I am not sent there at all. I am acquitted.
§ "But", says the magistrate, "the matter cannot rest there. You were conducting yourself in such a way as to create a reasonable impression that you were under the influence of drink. You were waving an umbrella in the air." My reply would be, "But I am not charged with waving an umbrella in the air, and if I was doing so I was not doing it as a result of alcohol but to show my appreciation of the resurgence of the Liberal Party." Your Lordships will understand that you could not say those words unless you were completely sober. The magistrate accepts my story, but ends up by saying, "Never mind, you were behaving as if you had had 'one over the eight'; and although, on the evidence, I cannot convict you, the summons will be dismissed but you will pay five guineas by way of costs". Or it may be that the summons is dismissed and I do not have to pay any costs; but, of course, I am put to considerable expense myself.
§ Why should that sort of thing happen? I cannot understand it. The difficulty is this: I am up against the Costs in Criminal Cases Act, 1952, which gives 426 the court in criminal cases a discretion to award costs to a successful defendant. In my submission the restrictive provisions of that Act are a gloss upon the presumption of innocence, an interference with the liberties of the subject and a derogation from Magna Charta. There are not hundreds but thousands of variations of this problem. Take the case of a person who is charged with an offence and then tells one story to the police and another story to the jury. The jury believe his story and the defendant is acquitted. In those circumstances the court would probably say that the defendant had acted in an inappropriate manner and should not be awarded any costs. But surely that is a confusion of thought. Why should this discretion be all on one side? The defendant has no discretion as to whether or not he should be charged with an offence; the defendant has no discretion as to whether or not he should go into the dock. He is taken there, sometimes by force. He has no discretion in the matter at all and he is put to very great expense; and what is the result? He was an innocent man before he was charged, when he was charged, when he made statements, right or wrong, when he went into the dock and when he came out. He was, like me, clothed in the white sheet of innocence. Why should that man be deprived of his costs?
§ There are numerous other variations of the same proposition. You may have the case of a man charged, shall we say, on nine counts at the Central Criminal Court, affectionately called the Old Bailey, and it may be that he is acquitted on three out of those nine counts. Then he goes to the Court of Criminal Appeal (I hope the noble and learned Lord the Lord Chief Justice will not take exception to anything I am saying) and when he goes there, to his great surprise he is acquitted of another three of the six remaining counts, and so he has won six-three. Unfortunately, the three which have been scored against him are rather more powerful than the six on which he has been successful; nevertheless he has been successful on six counts out of nine. In my submission he ought to get his costs on those six counts. Why not? He was innocent on those six counts before he was charged, when he was charged, and after he went into the dock. He had always been 427 innocent on those particular six counts. Why should he not receive his expenses in connection with those matters?
§ I do not propose to go on at any length, because the matter lies within a very narrow compass. This 1952 Act gives the court discretion to award costs to a successful defendant. I say that a successful defendant is a man who has complied with the presumption of innocence, and he should always have his costs; and I shall always stick by that, though I shall never be followed by anybody else. I thought this matter would arouse very little interest. It appears to have raised rather more interest than I anticipated. I wish to end by saying that there is no sort of reflection on the courts of this country. The courts of this country enjoy a worldwide reputation for efficiency, integrity and absolute fairness. I am not attacking the court or any member of any tribunal. I am saying merely that the system is wrong. With that rather modified view of the matter, I beg to move for Papers.
§ 3.18 p.m.
§ LORD SILKIN
My Lords, whatever we may feel about the merits of this Motion, we should all be grateful to the noble Lord for having raised it in a most delightful speech. This is a very interesting question. Although, happily, most of us have not had personal experience of this problem, I think we have all had to consider it from time to time.
The Motion lays it down that in all cases of an acquittal the defendant should be entitled to his costs, and the noble Lord bases that claim on the fact that an acquittal is equal to a verdict of innocence. Well, it is not quite so in Scotland, for instance, where there is a verdict of "Not proven". And in this country a great many verdicts of "not guilty" are based on the fact that the onus of proof, which is very strong in a criminal case—there must be no reasonable doubt about the facts upon which the person is convicted—has not been discharged, and there is a doubt. I would suggest that that is, in many cases, a very different thing from saying that this person has been proved to be innocent or that his innocence has been 428 established. If it is so, I would submit most humbly that that is a legal fiction.
The noble Lord, Lord Meston, gave the example of the person who is drunk. Curiously enough, I was going to give a similar example. Take the man who, having had four double whiskies, drives a car and runs over somebody, without even knowing that he has done so. And this happened to a person I know. In due course, the number of his car having been taken, he was found and charged. He admitted to the number of drinks he had had but, for some reason or other (I do not know the details of the case; I was not acting for him), he was acquitted. Under the terms of this Motion that man, who admitted having had more drinks than were good for him, would have been entitled to his costs. I would not give that man a bean—indeed, I think he ought to have paid the costs of the police for the prosecution, even though he was found not guilty.
In principle, however, I do not go so far as that. I think we have to distinguish between that case and cases where a person has been charged with an offence in which the evidence was of such a nature that no reasonable person should have brought proceedings. Unfortunately, there have been a number of cases published recently where it could be regarded as unreasonable to have taken criminal proceedings. In such cases, of course, the person concerned ought to be awarded his costs; and the Act of 1952, to which the noble Lord referred, permits of that discretion being exercised. But I believe that it should be discretionary. I think, too, that the discretion to award costs has not been exercised sufficiently freely; in my view, it should be exercised far more freely. There are cases where the person ought never to have been charged on the evidence that was in the possession of the police. There are cases where a person is charged with an offence on the basis of identification which turns out to be wholly wrong. In those cases I agree that it would be right that the defendant should be entitled to his costs.
My Lords, I should be quite content if the Judiciary were given to understand that it was the feeling of this House, and of the country generally, that the discretion which they already have should be 429 exercised more freely and generously on behalf of the defendant. I could attempt to lay down some criterion, but I feel that it would be wrong. It would be fettering the discretion, and so I will not do so. I trust the good sense of the Judiciary in dealing with matters of this kind.
There is just one other point that I should like to mention, though I do not know whether it will commend itself to every noble Lord in this House. I am anxious not to deter the police from bringing actions where they, in their discretion, think they should. If it were automatic that every time the police failed in a prosecution costs were awarded against them, it would soon become a black mark against the particular policeman who perhaps failed once or twice to get a conviction; and the police themselves would be tempted to go beyond their province and to press the prosecution further than they legitimately ought to do. I think that would be damaging to our whole criminal system. For all those reasons, my Lords, while I hope that it will be made clear that we should desire the discretion to be exercised more freely, I hope that we shall certainly not go so far as the noble Lord, Lord Meston, desires.
§ 3.25 p.m.
§ LORD PARKER OF WADDINGTON
My Lords, may I crave your indulgence in breaking silence at a comparatively early stage in my membership of your Lordships' House? The subject under discussion, however, concerns the administration of the criminal law, and, as such, is of deep concern to me. May I say at once that, though it may be thought that too rigid an attitude has been adopted in the past in regard to the award of costs, I should certainly feel constrained to resist any amendment of the law which made the award of costs to an acquitted person automatic. I should do so because it seems to me that it is not in line with reason or with common sense. May I give a few illustrations?
A young man of under 24 is charged with having carnal intercourse with a girl under 16. He admits having had intercourse, but he relies on the statutory defence that he had reasonable cause to believe that she was over 16. Your Lordships will observe that until he goes into the witness box nobody 430 can say whether or not that defence has the slightest chance of success. In the end, he is acquitted. Is it really to be said that local funds are to pay for the results of that frolic? Again, take the man who is charged with bigamy. He has left his wife and gone through a form of marriage with another woman. He is charged, and then there emerges at the trial something that even the prisoner did not appreciate, that his first wife was already married and her husband is still living. Again, are local funds to pay for that? Take the many cases of a man who has really brought prosecution upon himself. Of course, when charged he can exercise his right to say nothing. Supposing he chooses to tell a palpably absurd story—an encouragement to prosecute—and then at the trial sets up a plausible alibi. The jury are told, as they have to be, "If you think that there is anything in his story of an alibi, then it will be your pleasure to acquit." And he is acquitted. I venture to think that such a man has really brought the prosecution upon himself. If, instead of telling an absurd story, he had told the police that he had an alibi, the chances are that he would never have been prosecuted at all.
One can multiply such incidents almost indefinitely, and I venture to think that after a day in court any serious-minded person would say that it was quite impossible to provide for an automatic award of costs. As we know, the position is governed by the Costs in Criminal Cases Act, 1952. Under that Act the discretion is a completely unfettered one—there is no presumption one way or the other as to how discretion should be exercised. I venture to think that only by providing for that completely unfettered discretion can one hope to do justice in the varying circumstances that come before the courts. To legislate in advance for these different circumstances would be quite impossible.
My Lords, I said a moment ago—the noble Lord, Lord Silkin, has already referred to the matter—that it may be considered that too rigid an attitude has been adopted in the past. The notion seems to be abroad that it is useless to ask for costs unless it can be said that the prosecution are at fault. Coupled with that is the notion that if a court 431 does award costs that fact is in some way a slur on the police and on the prosecution. I venture to think that that idea is quite wrong. There may be, there must be, many cases where a prosecution is rightly brought, yet where, at the end of the day, the prisoner is acquitted and should get his costs out of local funds—and get his costs without it being thought to be any slur whatever on the police and without any doubt about the propriety of the prosecution. It was with this in view that only last month in the Court of Criminal Appeal we issued a statement which I hope has removed, or at any rate lessened, that rigidity. And it is my sincere belief now that there is no impediment which will prevent that free exercise of the discretion provided for by the Act, and that only thus can justice be done in the varying circumstances of each case.
My Lords, may I ask the noble and learned Lord this question? If a person is acquitted, is he innocent or guilty? I want a reply in one word—innocent or guilty.
§ LORD PARKER OF WADDINGTON
I reply to that that he is innocent. May I say at the same time that I would completely dissociate myself from the view that because the court thinks the prisoner has been lucky, or the jury have been unduly benevolent, for that reason alone costs should be refused.
§ 3.32 p.m.
§ LORD DENNING
My Lords, I am sure your Lordships would wish me in the first place to say how warmly we appreciate the presence here of my noble and learned friend the Lord Chief Justice. It has been my privilege to work with him for many years as a colleague. He has been before me at the Bar, and we have sat together on the Bench; and throughout, the learning, insight, courage and clarity which your Lordships have heard to-day have been present in his judicial and other work. I only hope—and I am sure I speak for all of your Lordships—that we may often have the privilege of hearing him here when he can spare the time from his other important duties.
I cannot help thinking that my noble friend Lord Meston must have put down this Motion, not perhaps as one of his 432 drunken escapades, but rather as an escapade, because even in civil cases the Judges have a discretion. According to this Motion the Judges would have to award every acquitted person his costs—costs, mark you, payable out of local funds, which means out of the people of the county, the ratepayers or whoever it may be. Let us study the matter. First, take the contrast between civil cases and criminal cases. A Judge has discretion in all of them. In civil cases the contest is a straightforward fight, with no quarter given on either side, the Judge, so to speak, holding the balance if it tips one side or the other. As a rule, unless there has been some misbehaviour, he gives the winner his costs. That is the ordinary civil procedure.
How different is our criminal procedure! There are these safeguards which we throw around the prisoner, the accused, at each turn to help him. The prosecution are not a party striving for a conviction. They represent the community as a whole, in the name of Her Majesty the Queen. And what is the duty of the prosecution? First—and I would say that in my experience it is almost invariably fully performed—they must be sure that there is reasonable cause to believe the accused guilty; and secondly, there must be fairness and frankness in the presentation of the case. If the prosecution know of a credible witness helpful to the accused they must call that witness or let the accused know his name. They must not bring up anything against the accused's character or previous convictions. Those must not be mentioned at all. Finally, there is the instruction which every Judge, every day of the year, gives to the jury: "Mark you, you are not to convict this man unless the case is proved against him beyond all reasonable doubt." The prosecution counsel say that; the defence counsel say it, and the Judge says it. But when a man is acquitted, with all the advantages of those safeguards, does it followed that automatically he is to have thrown in the additional benefit of having all his costs? My noble and learned friend has given your Lordships some illustrations. May I tell the House of actual cases which I have tried?
There was the case of a man who came out of a public-house, having had his drink there and drove off up the road. 433 A police car happened to follow him. He was wandering in his car from one side of the road to the other. The police car was able to stop him a few hundred yards further on. The man could hardly get out of his car; he had to hold on to it. The police thought he was not fit to drive and took him to the police station where he was examined, not by a police surgeon but by an ordinary doctor who put him through the usual tests. He could not stand steady with his eyes closed. He could not do the nose test—touching his nose with his finger. His urine was examined and found to have a high percentage of alcohol. One question was asked by him: "Did I jump up the steps of a police station in one leap—three steps—just to show that I was sober?" The answer was, "Yes"; and he was acquitted.
Most people in that position, when the matter comes before the magistrates, say, "No thank you. I would rather not be tried before magistrates. I will go before a jury." In many cases the jury find a verdict for acquittal. I agree that the man is innocent: he is not guilty. But has he not brought this upon himself? He has put society to all the expense of calling in doctors, people from Scotland Yard laboratory and the police, as well as all the expense of the trial. Is he also to put on to the county the cost of the defence?
There was the case of a man who went through one of the great towns at such a great speed that a housewife, with her baby, a shopkeeper and a police officer took his number. He again was acquitted because, as it happened, nothing was coming out of side roads at the time. I suggest that when a man by his own conduct brings proceedings upon himself so that he has only himself to thank for them, there should be discretion in the Judge to refuse him his costs. But, of course, if there is a mistake anywhere—and there is often mistaken identity, or a witness may be mistaken in saying that a man was on the wrong side of the road—then the Judge, when the man is acquitted, should give him his costs, for he has not brought it upon himself at all.
My Lords, those are illustrations of cases on one side of the line and the other where I suggest it is only right that the Judge should have a discretion and should not be fettered. True, in 434 the past it has been too rigidly forbidden, but with the statement that my noble and learned friend has recently made I would suggest to your Lordships that there is no need to fear. One must think of this question in relation to the condition of affairs at the present time, when so many people seem to think that our police are not to be trusted, when people seem to think that if a prosecution fails there must have been some fault somewhere in the people bringing it. From my experience, the police of this country are still the finest body of men to be found, and it is the greatest disservice to law and order in this country that some people should raise calumnies against the police or suggest against them that they do not do their duty. I would ask that this Motion be rejected and suggest that the existing practice is well worthy of your Lordships' support.
§ 3.40 p.m.
§ LORD STONHAM
My Lords, I do not feel that I should apologise for the fact that, so far as the list of speakers is concerned, I am the only layman who has the temerity to take part in the debate, which otherwise appeared to be likely to be a "lawyers' feast". I feel it is necessary for perhaps an uninformed lay point of view to be put forward, because, after all, in all these cases, or in most of these cases, it is lay members of the public who are concerned and who are at the receiving end of any injustice, if injustice there be. It is no use disguising the fact that there is considerable public concern in this matter and over a number of cases that have recently come before the courts. To say that is not to reflect in any way on the police, nor on our judicial system and on the extreme care with which every case is judged and on the way in which every defendant is given the utmost possible benefit of the doubt. However, when that has been said, it is unquestionable that innocent persons are tried and acquitted and do not receive their costs. They have not merely had all the acute anxieties, indignities—social disgrace, if you like—of having to stand in court as an accused person; but they have to pay what often amounts to very heavy costs and far more than they can afford.
I have been surprised by two things during the debate this afternoon: one, by the apparent facetiousness with which 435 in some ways this extremely serious subject was dealt with; and also by the overwhelming weight of the highest legal opinion that in most cases, if not all, anyone who found himself in court in the position of a defendant was there through his own fault. I am sure that in many cases—not in most cases, but numerically in quite a large number of cases; not necessarily a large proportion—that is not so and people are in court through misfortune and certainly through no fault of their own.
My noble friend Lord Silkin pointed out to the mover of this Motion that acquittal was not equal to a verdict of innocence, and he said—and as a layman I think it is quite right—that acquittal is based not on certainty of innocence but because there is a reasonable doubt of the accused person's guilt; in other words, an acquitted person is not necessarily an innocent person but one of whom the jury have thought there was a reasonable doubt about guilt and therefore the person was entitled to acquittal. But what about the person where there is no doubt whatever about his innocence—the accused person who has been found guilty and been sent to prison and of whom subsequently it is found, through new facts being brought forward, that he is an innocent person? Not only does he not get costs automatically, but he does not get any compensation automatically. The noble and learned Lord, Lord Parker of Waddington, referred to the question of an alibi, and said that if a man (if I report the noble and learned Lord correctly) gave one story to the police and another to the jury, it was his own fault if he found himself in that position. But what about the man whose only defence is an alibi and the only story he has told is the truth, because that is the only story he has to tell, and because his alibi is not believed he is found guilty?
These are not hypothetical cases. Two years ago, when I was a Member of another place, I had experience of one such actual case, of a man who had been sentenced for having committed a "smash and grab" offence. I forget the term of imprisonment; it was three or four years. That man had, some years before, been guilty of a similar kind of offence and had served a prison sentence. As very often happens in these cases 436 when the police have no real clue, they look up the persons in that area who have been susceptible to that kind of offence and who are known to be at liberty and go and check on them and put them up for identity parade. When these identity parades take place no photograph of the parade is taken, nor is it allowed to be taken, and consequently the defence is very much handicapped in such matters. This man was picked out on the identity parade and was duly charged and convicted, not because he had said anything different to the police from what he told the jury but simply because the evidence of the police and an independent witness that that man was the man who committed the offence was sufficient to convict him. In these cases which arise from an identity parade, when an accused person has to put up an alibi the alibi is very often from the wife or a relative or a friend, and is often very weak and difficult to believe. But as sometimes happens—as very often happens—it is the truth; but the man is convicted.
In the particular case to which I have referred, it happened that this man had for some years carried on a little business as a dealer. He had a lorry, and at the very time that the offence was being committed he was engaged in negotiating to hire from a reputable estate agent another place of business. He did not in fact hire it, fortunately for him. The estate agent was extremely annoyed at the loss of time, and only after the man's conviction—some time after the man's conviction—did he learn of what happened. He came forward and proved the man's innocence, but he had then been a year in prison. He had lost his business and suffered very great losses. I tried to persuade the then Home Secretary that he should be given some compensation by way of an ex gratia payment, but it was refused.
Now here we are dealing with the kind of case which does not fit in with the cases which have been put forward by noble Lords so far—an innocent person who is found guilty and suffers grievous financial loss and losses of every kind but for whom there is no automatic compensation of any kind and for whom it is extremely difficult to get an ex gratia payment. I believe with my noble friend Lord Silkin that it is not possible and 437 not advisable—certainly not advisable—that there should be an automatic award of costs in all cases when a defendant is acquitted; but I feel most strongly that there should be far greater awareness, and steps should be taken to create far greater awareness, among laymen and magistrates and all who have to dispense justice that where it is manifest, or reasonably manifest, that a prosecution should not have been brought, then steps should be taken to award the defendant costs, and that this blot on the justice of this country—
§ EARL WINTERTON
My Lords, might I ask the noble Lord a question arising out of his very interesting speech? He said that there should be more awareness. What does he mean by that? Is he now suggesting that the judicial authorities, whether juries or magistrates or judges, should understand the law better than they do to-day? What does he mean by "awareness"?
§ LORD STONHAM
My Lords, certainly I would not and did not for one moment intend to suggest that there was any lack of awareness about the law among our judges. But certainly it seems to me that in some cases defendants are not sufficiently well informed about the possibilities of securing their costs—I put it no higher than that. But in the other instance—and, although it affects only a small proportion of cases, quite a number of them exist, and I have given particulars of one—I think that we should make it automatic that compensation should be paid to a person who has been tried, found guilty, and then subsequently found innocent; that he should be awarded not merely his legal costs but fair compensation for all the other losses he has suffered. I would say that justice alone demands this; and if we could get some kind of an assurance from the noble and learned Viscount the Lord Chancellor, when he comes to reply, that that point will be investigated, then this debate, for that reason alone, will have been well worth while.
§ 3.51 p.m.
§ THE EARL OF SWINTON
My Lords, I think that after the speech of the Lord Chief Justice the general feeling of the House would be that Lord Meston's Motion might be dismissed without costs. However, I want to reinforce what I 438 think the noble Lord, Lord Silkin, regarded as a subsidiary point which he made in his speech but which I regard as vital and as perhaps the most important aspect of the whole of this question. It is this: I think it would be quite inevitable that if costs were given automatically there would be the feeling—both of the noble and learned Law Lords have referred to it—that it was a reflection on the police and a reflection on the prosecution.
What I am quite certain would happen, if the local authority had to pay costs every time anybody were acquitted, is this. Do let us remember—and I have not forgotten all my early days—that it is always the duty of counsel who are prosecuting to bring out everything which they can in the prisoner's favour. They are not there, as they are in a civil case, to fight their action: they are there to see that justice is done. I have no doubt at all that if, in case after case where a prosecution has been perfectly properly brought, the costs were levied on the local authority, who have quite enough burdens to bear to-day in the way of rates and other charges, there would be a resentment against the law; and that is a very had thing to have. It is like prohibition in the United States. If you get resentment against the law, the law comes into contempt, and that is bad, not only for that law but for all law.
But there would be a much more serious effect than that. There would be a resentment that prosecutions had been brought; and, inevitably, the police would be deterred from hunting crime, or made less keen, and from bringing it to justice. My Lords, if there is any issue or problem which at the present time is giving us all the gravest anxiety it is the two-fold problem of the increase of crime, not least among the young, and the difficulty of bringing criminals to justice because of the great ingenuity of criminals and the modern methods at their disposal—the scientific methods, chemical methods, methods of locomotion. These all make crime easier to commit and more difficult to detect.
I remember that in another place—I do not speak technically, but somewhere else—the Lord Chief Justice said that he thought it was more important to 439 spend money on reinforcing the police than on building new prisons. I think that is quite true. But, surely, what is tremendously important is that local authorities and everybody in the State should give every encouragement to the police, who are the most honest and efficient body of men. I believe that the British police—not only the Metropolitan Police, but the police all through the country—are as much the envy of every civilised country in the world as are our courts of justice—and I cannot say fairer than that. But surely it is essential that everybody should be behind the police, not least the local authorities, to whom, in the counties and in county boroughs the police are responsible. The local authorities should encourage them, and the police should know that their local authority—and, indeed, every citizen whom the local authority represent—are behind them in their difficult and arduous task.
I am not saying whether the discretion given to judges is widely enough exercised to-day. The Lord Chief Justice has made it quite plain from the bench that the discretion is there for judges to use whenever they think right, and nobody can tell as well as a judge whether it is right to give costs. But I am quite sure that if you change the law from this discretion vested in the judges and made it an automatic right, you would be giving nothing less than a charter to criminals, and you would be saying to criminals, whether they be old or young, "You criminals have 'never had it so good'."
§ 3.57 p.m.
§ LORD CHORLEY
My Lords, my noble friend Lord Stonham has raised a point of importance and interest, but I think it is really outside the Motion which is before your Lordships' House this afternoon. I hope—because it is a matter of importance—that he will bring it up again and that we can perhaps thresh it out. But in regard to this matter I think the most important point he made was that the situation ought to be better known; and I think it is being made better known. If I may say so, as chairman of quarter sessions I have within the last few days received from the Home Office a note of the judgment, so clearly setting out the position, to which the noble and learned Lord, the Lord Chief Justice, referred in his speech earlier 440 on. I am quite sure that that is already in the hands of all the benches of magistrates up and down the country, and it should bring very clearly indeed to their notice the position regarding the award of costs to prisoners who have in fact been acquitted. Therefore I think that this side of it is being reasonably well looked after.
I should like to add my little support to what was said by my noble friend Lord Silkin and by the noble Earl, Lord Swinton, about the likely effect that this would have on the police. The police are very sensitive in matters of this sort. I have often talked with them. For example, if there has been a succession of dismissals by magistrates in regard to some particular type of conduct—such as youths doing malicious damage to property, and that sort of thing—it is very interesting to notice that after a short time the police say, "It is no good; we will not bring any more". I have been told that by chief constables up and down the country, and there cannot be any question about it. I am sure that what the noble Lord, Lord Silkin, and the noble Earl, Lord Swinton, said about that is undoubtedly right, and it would have a very serious effect from the point of view of prosecutions. My Lords, I think that the case which has been put by the noble and learned Lord, the Lord Chief Justice, and the noble and learned Lord, Lord Denning, is really quite unanswerable.
There is just one further point that I think is relevant and not without its importance. In civil cases, particularly motoring cases, where accidents are so common, there is a very large and thriving business in speculative actions conducted by the rather less reputable type of lawyer who stands to make considerable capital gains—at any rate, gains—out of speculative proceedings. Obviously, that would extend far more widely in criminal cases if this Motion were carried and put into effect. Almost everybody who is prosecuted would be defended, and defended by able and rather unscrupulous lawyers who are practised at building up costs in all directions. The result would be that what is now a perfectly simple case, in which a man makes his own statement and the magistrate weighs it up, and perhaps dismisses the case because it has not been proved, would become a complicated 441 case, often lasting two or three days, with expensive counsel employed, all sorts of expert witnesses brought in and costs built up, perhaps, to hundreds of pounds. This would become a lucrative sideline of legal business, and I am sure would become a very serious matter before it could be checked. I think that this is another reason why this Motion, though it is very well intended, should not be accepted.
My Lords, for centuries the South wind has borne a reproach across the border of my country that we admit a verdict of "non-proven". As soon as I saw my noble friend's Motion drawing attention to this matter I said, like the noble Lord, Lord Silkin, "Why, this is a verdict of 'non-proven', and the only difference is that in my country it walks about naked, while in England it is decently veiled and draped." I only wish that I could consider that this difference measured the difference in hypocrisy between our two countries.
§ 4.2 p.m.
§ LORD CONESFORD
My Lords, I shall detain your Lordships for only a few moments, because I think that the reasons given in the most cogent and welcome speech of my noble and learned friend the Lord Chief Justice are quite conclusive in this matter. Whatever difficulties there may be would certainly be made worse by the adoption of the Motion now before the House. I think that the anxiety which undoubtedly spread among the public recently was really due to a suspected practice in one or two cases which was roundly condemned by the recent statement of the Court of Criminal Appeal. I think that many members of the public were shocked, and rightly shocked, by the idea that a Judge might deprive a defendant of costs merely because he disagreed with the view taken by the Jury. That, I think, would shock the public. But the recent statement of the Court of Criminal Appeal, to which reference has been made, made it clear that any such deprivation would be improper and would not be a judicial exercise of the discretion.
The noble Lord, Lord Stonham, mentioned a matter which, in the experience of some of us, can lead to hardship and to what would popularly be called injustice, but it really has nothing to do 442 with the Motion now before the House. I shall certainly yield to the noble Lord later, if he wishes to intervene, but the case which he put, which all of us know sometimes occurs, is the case where there is a conviction of the defendant after a perfectly proper trial. No complaint can be made of the conduct of the Judge or jury or the result in law of that trial, but subsequently evidence comes to light which shows that in fact an innocent person has been convicted.
I remember a case, which happened now nearly forty years ago, which I heard tried at the Lewes Assizes. I was attending the Court to qualify myself for the South Eastern Circuit and the Kent Sessions. It was a case which worried me very much at the time, because the woman then under trial, in what is popularly known as a "poison pen" case, seemed to me to be puzzled and bewildered and also seemed to me, in the way in which one sometimes has a conviction about these things, to be innocent. As the trial proceeded, I found myself more and more suspicious of the prosecutrix. That case had a dramatic sequel at subsequent trials. It eventually came out that the prosecutrix had committed perjury and in due course she was convicted. But the only way of dealing with the innocent victim of the first trial—a case not unlike that which the noble Lord, Lord Stonham, has in mind—was to exercise the prerogative and pardon her. That was the only method by which justice could be done. She was also given, ex gratia, it is true, because again that is the only method available, a sum of money to compensate her for her sufferings. Whether or not we can devise a better scheme for dealing with that type of case, where there is no fault to find with the trial but where subsequent evidence proves that there has been a miscarriage of justice, that has really nothing whatever to do with the present question, which is, what should follow in the normal trial.
§ LORD STONHAM
My Lords, I am most grateful to the noble Lord for giving way. I am well aware that the Motion refers to persons who have been acquitted and cannot really cover persons who have been convicted and subsequently may be proved innocent. I produce this case because such persons ought to have been acquitted.
§ LORD CONESFORD
The noble Lord says that they ought to have been acquitted. I do not believe in the case, for instance, where there is perjury, that we can always avoid an innocent person, as he is subsequently shown to be, being convicted; but I do not agree that that means that in every case there was something wrong in any remediable way about the conviction. What we are here considering is what should be the consequences of acquittal. I am sorry to have detained your Lordships, but I wished to show, so far as I could, that the case brought by the noble Lord, Lord Stonham, concerned a different problem, and that, in my view, the causes of recent public anxiety were removed by the recent statement in the Court of Criminal Appeal. For these reasons, and for those so admirably stated in the most welcome maiden speech of my noble and learned friend the Lord Chief Justice, I hope that this Motion will be rejected.
§ 4.9 p.m.
§ LORD MILNER OF LEEDS
My Lords, we have had, I hope your Lordships may think, a useful and valuable debate on a matter very much affecting the liberties of the subject. I am sure that we are all obliged, to the noble Lord, Lord Meston, for raising it, though we may not all agree with him. There are one or two factors in the matter which, I think, have not been brought to your Lordships' attention and which I think I ought to mention. But, before doing so, I must take my noble friend Lord Chorley to task. To think that a solicitor or lawyer, speculative or otherwise, would take up the defence of an accused person, spend hundreds of pounds and days of work in the pious hope that his client would be acquitted, and that he would receive costs from the local authority, is really most absurd. It is quite ridiculous for my noble friend to put forward such a proposition. I need not elaborate the point to your Lordships. There are obviously too many doubts in the case and very little likelihood, even with the matter as it at present stands—
§ LORD CHORLEY
I should like to assure my noble friend that when I was practising at the Bar I saw a number of civil actions of this kind in which it ought to have been clear that the case 444 should never have been brought; and I have not much doubt that similar sorts of cases would be dealt with in the same way in the criminal court.
§ LORD MILNER OF LEEDS
I do not know how many years ago my noble friend practised at the Bar, but may I ask him whether he is telling me that lawyers took up cases where in the event of their succeeding in a defence some local authority might or might not pay the costs?
§ LORD MILNER OF LEEDS
That would be a civil matter: there may have been cases of that sort. But I believe that the speculative lawyer is now a thing of the past. At any rate, the noble Lord's proposition with regard to taking up the defence of an accused person on the offchance of being given costs if that person is acquitted seems to me too far-fetched to require further enunciation.
§ LORD CHORLEY
I do not like to keep interrupting, but if this Motion were carried and put into effect it would not be the offchance: if there was an acquittal, the costs would follow.
§ LORD MILNER OF LEEDS
That may be my noble friend's opinion, but I cannot think that it is the opinion of any other noble Lord in the House. However that may be, I feel that it is necessary to bring one or two matters to your Lordships' attention and give a short history as to how the present position came about. There are provisions in more than one Act of Parliament which cover the proposition that a court may order costs to be awarded to an accused person who has been acquitted. They apply to magistrates' courts—and if the noble and learned Lord, Lord Denning, will forgive my saying so, it is not always the case that there are the various protections in magistrates' courts he mentioned. One has not always the advantage of counsel and so on. But the provision as to the awarding of costs applies to magistrates' courts, courts of assize and quarter sessions, and also, on appeals, to the Central Criminal Court.
The original provision in the Criminal Justice Act, 1948, was inserted largely, if 445 not wholly, on the representations made by the Council of the Law Society to the then Home Secretary. The Council urged that a clause should be inserted in the Bill embodying the principle that the court, in all cases in which a defendant was acquitted, should have an unfettered discretion to order payment of the costs reasonably incurred by him. The Home Secretary at the time accepted the principle put forward by the Law Society, and a new clause was put down in the name of the then Attorney-General and was passed by Parliament, it being expressed during the debate that the power then given should be interpreted as generously as possible.
This, however, is the fact to which I want to draw your Lordships' attention. As soon as the 1948 Act was passed the Home Office issued a circular which purported to explain the underlying intention of Section 44, as it was, of that Act. The circular intimated that it should not follow as a matter of course that costs should be awarded in this class of case, and went on to say that the power should be reserved for exceptional cases and that every case should be considered on its merits. Then in 1952 a Practice Note of the Court of Criminal Appeal, then presided over, of course, by the former Lord Chief Justice, was issued which appeared to strengthen the Home Office circular in its insistence on costs being awarded only in exceptional cases. I do not know what your Lordships may think, but I doubt whether in a matter of this kind the Home Office should take upon itself the interpretation of the law set out in an Act of Parliament. It would probably not be proper—and, in any event, I should not be so presumptuous—to express an opinion as to how far the then Lord Chief Justice was entitled to follow up that circular by expressing in a rather stronger form the view which the Home Office had put forward. But as a result of that circular, and of the then Lord Chief Justice's Practice Note, it cannot be doubted that there have been a great many cases where, under the interpretation laid down by the present Lord Chief Justice, costs would probably have been awarded to the acquitted defendant, who, as we have heard, must be considered as being innocent.
If, again without presumption, I may say so, whilst I am not very happy about 446 the former Lord Chief Justice's Practice Note, I think the present Lord Chief Justice, whom we have had the pleasure of hearing to-day, has rendered a public service in bringing this matter out from the difficulties in which it has been placed during the last seven years by the Home Office circular and the former Lord Chief Justice's Practice Note, and making it clear that courts have an absolutely unfettered discretion in this matter. In the statement, to which reference has been made, the noble and learned Lord, Lord Parker of Wacldington, made it clear that the discretion of a court is completely unfettered and that there is no presumption one way or the other as to its exercise: it does not limit the discretion to exceptional cases, as has been done previously, resulting, as I think, and as I gather my noble friend Lord Stonham thinks, in a good many injustices being done in the past.
As I have indicated, the Law Society were originally largely responsible for the clause in the 1948 Bill, and I am authorised by them to say that their view in 1948—and it is still their view to-day—was that courts should have an absolutely unfettered discretion to order costs reasonably incurred by an acquitted defendant, and that those costs should be paid out of public funds. They are not in favour of the formation of a set of rules or guiding principles of general application made by the Home Secretary, or, if I may say so with respect, by the Lord Chief Justice in court or by anyone else who may take that duty upon himself—though, if the noble and learned Lord will permit me to say so, I entirely excuse him (if excuse is necessary) for the statement he made, which cleared up difficulties that had arisen from a previous statement.
The Law Society are also in complete accord with what I think has not been mentioned—namely, the representations made to the present Home Secretary last month by the Bar Council. The Bar Council informed the Home Secretary that in their considered opinion the statutory provisions conferring the discretion upon the court are entirely adequate to deal with the matter. The Bar Council said that the restrictions upon the exercise of the discretion should be removed and its exercise under the Statute left unfettered. They have informed the Attorney General and the 447 Law Society of their views, and they wish them to be considered by the Home Secretary, with any other representations which might have been made to him on the question. The position may therefore, I hope, be clear, and the House is grateful to the noble Lord, Lord Meston. None of us can fully agree with the terms of the Motion he has put forward, but the matter has been ventilated and one hopes that the unfettered discretion will be exercised much more frequently than has been the case in the past, and that to that extent the fair administration of justice in this country will be furthered in the future.
§ 4.22 p.m.
§ LORD CITRINE
My Lords, I had no intention of entering into this discussion when I came into the House this afternoon. I have no particular qualifications to speak on the subject at all. I remarked in my maiden speech that in this House there appeared always to be in some quarter or another of this House people who were expert in particular subjects, and I was filled with admiration at the exposition of their expert knowledge. This afternoon your Lordships have listened in the main to people who are in some way identified with the administration of the law. I have never occupied that position. I have never been a member of that public-spirited body of people who serve as magistrates. I have never envied them their duty, nor wished to participate in it. I have never been a member of a jury, but at one time in my life I did go quite frequently to the law courts to hear civil and criminal cases being tried. I well remember the way in which my mind swung one way or the other as the case developed, largely because of the eloquent and convincing speeches of counsel and, of course, largely because I did not know the other side of the case. I think an average juryman is in that position, and I will make a comment on that in a few minutes.
It is quite clear to me, now that I have heard the speeches of the noble and learned Lords who spoke earlier in this debate, that there could not possibly be a case for the automatic awarding of costs. What I did feel, however, particularly in regard to certain 448 sentences which fell from both noble and learned Lords, was that there might well be a greater exercise of the discretion than there has been in the past. This debate itself may help in that process.
Without offence to those who are learned in the law, perhaps I may say that I do not believe that the average defendant enters the courts without some presumption of guilt against him. First of all, the mere fact of arrest by the police is some indication that there is a prima facie case for the person who is being charged with the offence to answer. Newspaper reports which, fortunately, are not so extended on preliminary hearings to-day as they used to be, are read by hundreds of thousands, if not millions, of people, who make up their minds at that stage one way or the other as to whether the defendant or the prisoner is guilty. It is expecting too much of human beings that even a juryman can listen to a case without having some feelings about it. It is almost impossible for jurymen to have been in a state of complete ignorance about the pleadings in lower courts, and I should be surprised if juries are ever brought to that same stage of impartiality which is so manifest in the administration of justice in this country by judges. I say, therefore, that the defendant or the prisoner starts under a handicap.
The police case as a rule is well planned. They have the benefit of expert advice; they have many precedents to guide them of the particular kind of case, and when their case comes into court, and particularly if it reaches the assize courts, I think, speaking as a layman, that it is beyond argument that the police are in a stronger position for the presentation of their case than the ordinary defendant. I do not know how many defendants are in a position to brief leading counsel in their cases, although I know that provision is made by law for them to be defended. But certainly in the law cases it seems to me fairly certain that the defendant is at all events under some handicap.
I join entirely with those who say that we should not handicap the police too much. I think it is common knowledge that very often the police are pretty certain as to who has committed a particular crime. I have heard it said, and 449 I believe it to be true, that in regard, say, to safebreaking and that sort of thing there are a limited number of criminals upon whom suspicion rests. I might go even further and say, at all events speaking for myself, that I am certain that there are many cases in which the police know who has committed the offence, but to get the evidence to prove it is quite a different matter. I suppose we have all at some time or another been rather appalled at the very common instance in the United States of America of witnesses who have already given sworn testimony, but not in court, disappearing before the trial takes place. That is very common. I am sure that we in this country do not want to make it more difficult in any way to prove guilt where there is a strong presumption of guilt—I hope that is not at variance with what I have said earlier. I feel convinced that while the defendant is under a handicap, that fact will be prominently in the minds of judges if and when the case reaches them.
One cannot quite see how this matter can be put into more specific form, but I hope that a result of to-day's debate will be an extended exercise of the discretion which now rests with the judges. I would not, of course, urge that discretion should be used in cases with a bias, but I would most certainly say that it would give great satisfaction to the people of this country if it were more widely exercised.
§ 4.30 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I am sure that your Lordships are all most grateful to the noble Lord, Lord Meston, for initiating this debate. It is of great importance, not only to those who are prosecuted and acquitted but to the administration of justice as a whole; and it is, of course, a subject that has received considerable public attention during the last few months. Were none of those things true it would be a memorable debate for many of us, in that it has attracted the maiden speech of my noble and learned friend the Lord Chief Justice. I am most grateful to him, as I am sure the whole House is, for speaking to us on this subject, and I underline the hopes that we shall hear him often again.
My Lords, I should like to deal with the subject before your Lordships and 450 only to say a word or two about the wider subjects that have been raised by the noble Lord, Lord Stonham, and the noble Lord, Lord Citrine. I shall not forget those aspects, although they are outside the immediate point which is before the House.
I think the first point that your Lordships ought to have in mind is that there is no question of the courts not having the discretion to award costs. The noble Lord, Lord Meston, started from that premise, and no one has disputed it in the debate. I should only like to draw your Lordships' attention to the words in which the matter is expressed in the Costs in Criminal Cases Act, because I think they show that Parliament was anxious that a fair result should eventuate. The words which I had in mind are that the costs which may be so paid are defined as—… such sums as appear to the court reasonably sufficient to compensate the accused for expenses properly incurred by him in carrying on the defence, and to compensate any witness for the defence for the expense, trouble or loss of time properly incurred in, or incidental to, his attendance and giving evidence.If I may summarise the position, because I think it is important, in view of this debate, that the position should be clearly on the records of your Lordships' House, the position in brief is that the superior courts and magistrates' courts, when dealing with indictable offences, have power, where the accused is acquitted or the case against him is dismissed, to order the payment out of local funds of the costs of the defence; and there is also, in the case, of indictable offences, a limited power, in certain specified cases, to order the payment of costs by the prosecution. In summary cases—that is, cases dealt with summarily in magistrates' courts—the position is that the magistrates' court, on dismissing the information, has power to make such order as to costs to be paid by the prosecutor as the court thinks just and reasonable. So that there is no doubt that the power is there.
As has been pointed out in the debate, the provision allowing the courts to order the payment from local funds of costs to an acquitted defendant is comparatively new. It derives from Section 44 of the Criminal Justice Act, 1948, and before that enactment the powers were much more limited. I think we ought to 451 consider the practice because I think it is in the change of practice, to which my noble and learned friend referred, that a great deal of the misunderstanding which has aroused this matter has come in, because I do not think it has been fully understood how clear the position is to-day.
It is true, as the noble Lord, Lord Milner of Leeds has said, that the practice of the courts in exercising their discretion was until recently guided by a statement by the former Lord Chief Justice, my noble and learned friend Lord Goddard, in the Court of Criminal Appeal in 1952. With your Lordships' permission, I should like to quote that statement, for two reasons; one, because the noble Lord, Lord Milner of Leeds, referred to the Home Office circular, and it is important to note that the circular was approved by the Judges, and secondly that your Lordships should have in mind how it was then put. Lord Goddard said:The Court desires to take this opportunity to correct some impressions which appear to have arisen about the exercise of the power conferred by section 44 of the Criminal Justice Act, 1948, to award the payment of costs out of local funds to a person who has been acquitted on his trial. The misunderstanding may have arisen out of a circular sent, after consultation with the Judges of this Division, to Chairmen of Quarter Sessions and Recorders in November, 1948 ….I draw attention to that passage because the noble Lord, Lord Milner of Leeds, said that in his view it was undesirable that the Home Office should send circulars. I want to point out—I think it is only fair to a Department over which I once presided—that that circular was sent after consultation with the Judges of the then King's Bench Division. Lord Goddard's statement continued:… and we thought that this circular may have been construed in a more rigid manner than was intended.In the circular of 1948 the Judges approved a circular that had been sent out by the Home Office to the effect that costs under Section 44 should be awarded only in exceptional circumstances. Some instances of exceptional circumstances were given, but they were intended only as examples and not as a comprehensive list.Let me reiterate the principle that the Judges think should be followed in this matter. While Section 44 in terms imposes no limit on the discretion of the court, it was never intended, and it would be quite wrong, that costs should be awarded as of course to every 452 defendant who is acquitted. Its use should be reserved for exceptional cases, and every case should be considered by the Court on its own merits.I may add that a reference to Hansard shows that this is in accordance with what the Attorney-General stated in Parliament was the intention of the clause when it was being considered in Committee".The Attorney-General then was my noble and learned friend Lord Shawcross, who was Attorney-General in the Labour Government in 1948. What he said was:I am not by any means saying that costs should automatically be awarded in every case to a successful defendant. In the majority of cases whereas we all rejoice with the defendant on his acquittal, it would be wrong to impose on the community the burden of paying costs of the defendants. But where the case is one which, for instance, the court considers perhaps ought never to have been brought, where the proceedings have been unusually protracted, or where the prosecution has been a private one—it seems right that the courts, before cases are tried on indictment, should have the same powers as are already possessed by the justices, awarding costs at their discretion".My Lords, these principles were followed, but during the summer of this year there was public discussion on the principles upon which the courts were acting in the exercise of their powers. It was argued by some that their interpretation was too narrow, and that there were cases in which acquitted defendants ought in justice to have received costs but had not done so. The noble Lord, Lord Milner of Leeds, put a Question in this House, and there were several Questions in another place put to my right honourable friend the Home Secretary. My right honourable friend said that this was a matter which it had always been thought right to leave to the discretion of the courts, but he undertook to consider the matter further. It was in those circumstances, and with that background, that my noble and learned friend the Lord Chief Justice made his statement of October 19 this year to which he has referred to-day. He said that the discretion conferred upon the courts was completely unfettered and that there was no presumption one way or the other as to the manner of its exercise.
I hope your Lordships will not think that I am imposing on your patience, but I think it is so important that we should have this matter clear that, with your Lordships' approval, I will quote the 453 statement that my noble and learned friend made on October 19. He said:In a statement issued on the 24th March, 1952, this Court, while emphasising that every case should be considered on its merits, said that it was only in exceptional cases that costs should be awarded. That statement referred to a circular issued by the Lord Chief Justice, after consultation with the Judges of the Queen's Bench Division, approving a Home Office circular issued in connection with section 44 of the Criminal Justice Act, 1948, now replaced by Section 1 of the Costs in Criminal Cases Act, 1952.While no attempt was there made to catalogue the exceptional cases in which costs might be awarded such illustrations as were given were cases where the prosecution could be said to be in some way at fault. On the other hand a suggestion has been canvassed that the mere fact of an acquittal should carry with it the expectation that the discretion would be exercised in favour of the acquitted person. Were either of these views correct, the effect would be to impose a fetter upon the exercise of the absolute discretion conferred by the Statute. As we have said, there is no presumption one way or the other as to its exercise. Each case must be considered on its own facts as a whole, and costs may and should be awarded in all cases where the court thinks it right to do so. It is impossible to catalogue all the factors which should be weighed.Clearly, however, matters such as whether the prosecution have acted unreasonably in starting or continuing proceedings and whether the accused by his conduct has in effect brought the proceedings, or their continuation, upon himself are among the matters to be taken into consideration. On the other hand, the Court desire to make it plain that they entirely dissociate themselves from the view that the Judge is entitled to base his refusal to award costs on the ground that he thinks that the verdict of the jury was perverse or unduly benevolent. The mere fact that the Judge disagrees with the verdict of the jury is no more a ground for refusing to award costs to the acquitted person than the mere 'fact of his acquittal is a ground for awarding them.My Lords, I am glad that my noble and learned friend made that statement in specific terms.
The present position is that it has been made clear that the courts, when dealing with indictable cases, have an unfettered discretion to order the payment from local funds of the costs to an acquitted defendant. The courts have been enjoined by my noble and learned friend to consider every case on its merits. Indeed, the noble Lord, Lord Silkin, to-day spoke, if I may say so, wise words about the danger of clogging that discretion by giving many examples. In the view of the Government, this is eminently a matter which it is proper to leave to the discretion of the courts, and I have 454 reason to believe that this is a view widely held by those who have knowledge and experience of the working of the criminal courts. The circumstances in each case are different. In some it may be clear that a mistake has been made and that the prosecution was founded on the mistake; in others, the accused may have behaved in such a way as to make prosecution inevitable. But only the court in possession of all the facts—and, what I think is so important, the facts relating to each stage of the case, so that they can ascertain whether it has continued because a position has been taken up, or has continued with propriety—is in a position to judge whether costs should be granted. When I say "court" I am referring, of course, to magistrates' courts just as much as to courts of assize.
My Lords, I have listened with great attention to the charming and amusing speech of the noble Lord, Lord Meston, but I think that although he approached it in a rather different way, he had in mind what certainly other people have had in mind: that the law ought to be amended to provide for the costs of acquitted defendants to be paid as a matter of course in all cases, being influenced by the established practice in civil proceedings where costs normally follow the event. Even in that field, however, as my noble and learned friend Lord Denning, said, there is a wide discretion.
I do not think that the analogy of civil cases is a valid one. Again my noble and learned friend Lord Denning, dealt with that point. Civil proceedings are ordinarily brought by one party against another for the advancement or protection of their rights or interests. Criminal proceedings are instituted, in the great majority of cases, by the police in the exercise of their public duty. Moreover, the fact is constantly brought to the attention of the police that a prosecution can succeed only when the evidence is proved beyond all reasonable doubt. In a civil case the test is the balance of probabilities. As several speakers have laid down—I cannot refrain from repeating it, because it is one of the glories of my own profession as well as of our criminal justice—in a prosecution it is not the duty of an advocate for the prosecution to try to win his case; it is his duty to bring out the full facts, whether 455 they tell for conviction or acquittal, that are relevant to the matter before the court; and, as my noble and learned friend has said, either to call the witnesses himself or, where it is better or more convenient, to place them at the disposal of the defence, but to see that every opportunity is given for the truth to be brought out.
May I digress for a moment, out of respect for the speech of the noble Lord, Lord Citrine, because he dealt with the much wider problem of the fairness of our criminal process. That is a matter which we could debate for a much longer (time, but I want to say this to the noble Lord: commentators from the beginning of time have been impressed by the same point as has impressed him—that, after all, the defendant does go into the dock. It is a physical fact that happens and he is in that position. But I should like to say to the noble Lord, Lord Citrine, that the most tremendous care has been taken to see that, being in that position, he is given every assistance and is treated with the most scrupulous fairness.
I do not think there is any difficulty to-day in getting competent counsel. We are bringing into force the sections of the Legal Aid and Advice Act which provide even more fully for the defendant's obtaining legal advice from both counsel and solicitor. But again, looking back over an experience of forty years (though it is true counsel were younger) my experience is that it was a delight and an honour for counsel at the Bar to take these cases, even when there was no question of payment; and, broadly speaking, I do not think defendants have suffered in that way.
On the other side, I would remind the noble Lord, Lord Citrine, of what was said by my noble and learned friend Lord Denning—which I would ask him to read, for I do not want to repeat in absolute detail what he said. Because there is the other side of it: the point I have already made, that the prosecution must not press its case, and there are all the safeguards against previous convictions being brought out, and various rights that an accused has as to evidence. I believe that, given a prosecutorial system where the essence of the system is that the prosecution must prove its case, we have tried to find every possible means 456 to provide for fairness to the accused. I am not saying that it is the end of the story. I should be the last person in the world to have a closed mind, and I am prepared to consider anything that is suggested, but I should not like the noble Lord to think we are not conscious of his point and have not tried to meet it.
§ LORD CITRINE
My Lords, I do not wish to interrupt the noble and learned Viscount, but I believe he is rather misconstruing my point, I am sure not intentionally. I did not in the least wish to inpugn the fairness of a trial. I know how insistent judges are in instructing juries that they must approach cases without bias, and how they emphasise that the prisoner is innocent until he is proved guilty. But I say that there is a natural handicap, and I think the noble and learned Viscount has himself postulated that. What I am trying to say is that if, with those handicaps, the prisoner is found not guilty, it seems to me to be a stronger reason why discretion should be exercised more freely.
§ THE LORD CHANCELLOR
My Lords, on the final conclusion there is no difference at all between the noble Lord, Lord Citrine, and myself. Our argument is for keeping an unfettered discretion. I only wanted to make clear that we do strive to secure the utmost fairness for defendants and to counteract that position (which we cannot but recognise) that he is a defendant and that somebody has charged him. The whole of the changes and improvements in criminal law over the last two hundred years have been to try to displace that difficulty. All I say—and I should hate to be complacent—is that we have moved a long way in the right direction; and may I say at once that if anyone can suggest how we can move any further in that direction he will get a most attentive and sympathetic ear from me so long as I am head of the legal profession.
To return to the point which is immediately before us, I was saying that there are these differences between a civil and a criminal case; and, of course, there is the other point which those of your Lordships who are magistrates will fully appreciate, that in the criminal case where costs are likely to be heavy, the case tried on indictment, there is the sieve of the examining justice and the opportunity for 457 the accused to have the matter ended there if he cares to fight it, so to speak, before the examining justice, and to develop his case at that point.
The noble Lord, Lord Stonham, raised a point on which I should just like to say one word, as to the person who is wrongfully convicted, where the wrongfulness of the conviction emerges only at a subsequent period. Again, it is a reason for seeing that the costs provision is properly and sympathetically applied, but it is not directly relevant. I want to say only this, and I am grateful to my noble and learned friend Lord Conesford for having dealt with it: as the noble Lord, Lord Stonham, will appreciate, if the arrest is wrongful an action will lie for false imprisonment as to whether or not there was reasonable and probable cause for making the arrest; and in the case where a prosecution is malicious, where there were not reasonable and probable grounds for prosecuting and evidence of malice can be shown, then, again, an action will lie.
In cases where those elements do not exist, where there has been a perfectly proper arrest and a proper case has been honestly brought against a defendant on reasonable grounds and it is shown afterwards to have been wrong, then, as my noble and learned friend Lord Conesford mentioned, the practice is that the Government are ready to consider an ex gratia payment, in suitable cases; and some such payments have been made in recent years. The noble Lord will appreciate that a decision must be taken on the facts of each case, but I should not like it to be thought that that was the end of the matter in all cases.
I come back now to the position to-day. The view of Her Majesty's Government is that it would not be right to provide by legislation, as Lord Meston suggests, for the automatic award of costs to all persons who are acquitted of a criminal offence. This is a matter which should be left to the wise discretion of the courts. For that very reason, as the noble Lord, Lord Silkin, pointed out, it would not be right for me, as the spokesman of the Government, to express my opinion or seek to offer guidance as to how that discretion should be exercised. But this I can say: in view of the guidance recently given by my noble and learned friend the Lord Chief Justice, it may be expected that the courts will in future 458 feel able to award costs to acquitted defendants more freely than they have done in the past. I think that the rigidity, of which many noble Lords have spoken, has been removed from the situation by the words of my noble and learned friend; and I am sure that the wisest course will be to watch the position over a period and observe what use the courts have been able to make of their power, which it has been made clear beyond doubt is an unfettered one. I hope that in view of my last words the noble Lord, Lord Meston, will see that there is a great advance in the position; and perhaps in these circumstances he will not press this Motion this evening.
§ 5.1 p.m.
My Lords, I should like to thank the noble and learned Viscount the Lord Chancellor for his consideration and to thank other noble Lords who have spoken on this Motion. I am sure we are all especially grateful to the noble and learned Lord, Lord Parker of Waddington, the Lord Chief Justice, for his very authoritative observations.
In conclusion, may I mention four matters, extremely shortly? First of all, there is no conceivable attack on the police. I myself am a great admirer of that body of men and women. Secondly, I have specifically avoided any reference to civil cases, because I think the difference between criminal and civil cases is very considerable. Thirdly. I would point out for the first time—I should have pointed it out before—that the public pay for the Director of Prosecutions and the preparation of cases against the defendant; but there is no public defender, and unless a defendant receives legal aid there is no public purse to help him in his defence or to reimburse him in his consequential expenses such as loss of business. Fourthly, I would submit that where a person is acquitted the question of conduct should not come into the matter at all. A person is not charged with misconduct; he is charged with a specific offence, and if he is acquitted of that specific offence then the question of conduct should not come into the matter at all. We do not accuse a person of negligence or foolishness but we accuse him of some specific offence, and if he is acquitted of that specific offence then he should be acquitted of everything.
459 But your Lordships all oppose me on that point, and I propose to get my own back by writing to the authors of all legal textbooks in the country and suggesting that in the next edition of their works the presumption of innocence should be expressed as follows: "A person is presumed to be innocent unless he waves his umbrella in the air, or tries to shake hands with a letter box, or kisses a police officer, or leaps up a staircase three steps at a time or conducts himself in a similar manner."
460 I cannot carry the matter further. I am sorry that on the next occasion when I appear in a certain court and am acquitted I shall not get my costs so as to reimburse me for the expenses of the night before. Until that happy day comes, I beg leave to withdraw this Motion, and respectfully ask that there be no order for costs.
§ Motion for Papers, by leave, withdrawn.
§ House adjourned at four minutes past five o'clock.