§ 3.9 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I rise to move that this Bill be now read a second time. Although your Lordships may think this Bill at first sight to be somewhat dry and technical, it does in fact deal with matters of considerable importance in the history of the law, and this has, I think, been recognised in the comments on the Bill which have appeared in the Press and elsewhere.
The Bill really falls into three parts, the first dealing with appeals to the House of Lords in criminal cases, the second with the law of contempt of court, and the third with certain amendments of the law relating to habeas corpus. I will deal shortly with each of these in turn.
Before I do so I think it might be helpful if I were very shortly to remind those of your Lordships who are not lawyers of the structure of criminal and civil courts and the appeals therefrom. Criminal cases can be tried summarily before magistrates in petty sessions or on 248 indictment before quarter sessions or assizes. From petty sessions there is an appeal on fact to quarter sessions, and an appeal on law from petty sessions (or from quarter sessions sitting as an appellate body) to a Divisional Court of the Queen's Bench Division. From a verdict and consequent sentence on indictment, either at quarter sessions or assizes, there is an appeal to the Court of Criminal Appeal, which is composed of Judges from the Queen's Bench Division. From courts-martial there is an appeal to the Courts-Martial Appeal Court, which again is composed of the Judges of the Queen's Bench Division. Hitherto there has been an appeal from the Court of Criminal Appeal and the Courts-Martial Appeal Court to the House of Lords only on the fiat of the Attorney-General, on which I shall say a word in a moment. There has been no appeal from the Divisional Court of the Queen's Bench Division in a criminal matter, although, as I have said, the Judges are the same Judges of the Court of Criminal Appeal and of the Courts-Martial Appeal Court, however important the point at issue.
Civil cases may commence in the county courts, certain local courts or in any of the three Divisions of the High Court. From each of these there is an appeal to the Court of Appeal, and as your Lordships are probably aware, the Court of Appeal is selected from former Judges, usually from each of the three Divisions; and a Judge from the Chancery or Probate Divorce and Admiralty Divisions need not have seen a criminal case or imposed a sentence in his life. From the Court of Appeal there is an appeal to the House of Lords with the leave of either the Court of Appeal or the House of Lords.
So far as appeals in criminal cases are concerned, your Lordships may remember that the Court of Criminal Appeal was set up by the Criminal Appeal Act, 1907, in order, as I have indicated, to give a right of appeal to persons convicted on indictment. While the Bill for that Act was going through Parliament, a provision was added to give a further right of appeal to the House of Lords where the Attorney General certifies that the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance and 249 that it is desirable in the public interest that a further appeal should be brought. This provision is, of course, somewhat anomalous in that the Attorney General of the clay, who is a member of the Executive and may indeed himself have appeared for the prosecution before the Court of Criminal Appeal, is required to decide in a quasi-judicial capacity whether the case is one in which he ought to grant his fiat for an appeal to the House of Lords. I hope it is not merely as an ex-Attorney General that I say that the system has nevertheless worked well enough in the fifty years or more that have passed since the Court of Criminal Appeal was set up. In that time there have been some 22 appeals to the House of Lords in which matters of considerable importance to our criminal law have been decided.
Apart from this appeal on the Attorney General's fiat, there is no other right of appeal to the House of Lords in criminal matters. There is thus no right of appeal from the Divisional Court of the Queen's Bench Division in the many important types of criminal case which come before it, particularly on appeals by way of case stated from magistrates and quarter sessions. In these cases, as well as on criminal applications for habeas corpus and the prerogative orders—mandamus prohibition and certiorari—the decision of the Divisional Court is final, even though questions of law of considerable importance may arise on which it would be desirable to obtain the opinion of the highest Court in the land. The absence of a right of appeal in these cases was often regretted by my noble and learned friend Lord Goddard when he was Lord Chief Justice, and his words were echoed in a recent case, to which I shall have to refer again shortly, by his successor, my noble and learned Friend Lord Parker of Waddington, whom I am glad to see in his place this afternoon, and who has given me so generously of his help in the preparation of this Bill.
If there is to be a right of appeal from the Divisional Court, the question arises: what test is to be applied? For, clearly, some limitation must be imposed on the right of appeal if the House of Lords is not to be flooded with criminal appeals to an unmanageable extent. Then again, whatever test is applied, it ought to be 250 the same for appeals from the Court of Criminal Appeal as from the Divisional Court.
This has led us to look again at the right of appeal from the Court of Criminal Appeal which was provided in 1907. I think it is important to remember that Parliament in 1907 intended that the decision of the Court of Criminal Appeal should normally be final, and that a further appeal to the House of Lords should be quite exceptional, as, indeed, the Act itself makes plain. An appeal on the fiat of the Attorney General would not, in any event, be appropriate to appeals from the Divisional Court, and the Government have decided that the time has now come to replace the appeal on the fiat by the new procedure made by the Bill. My right honourable and learned friend the Attorney General has asked me to say that he welcomes this proposal.
What we propose is that the machinery for granting leave to appeal should be in the hands of the Court itself, and that only those cases should go to the House of Lords which do, in the opinion of the Court below, raise questions of law of real importance. As I indicated, if leave to appeal is to be a matter for the Court itself, the present test no longer seems to be appropriate. Clause 1, subsection (2), of the Bill accordingly provides that an appeal is to lie only if the Divisional Court or Court of Criminal Appeal, as the case may be, certifies that a point of law of general public importance is involved.
This, of course, is wider than the test of "exceptional" public importance, which at present applies to appeals from the Court of Criminal Appeal. Once this test is satisfied, an appeal will lie if the Court below or the House of Lords gives leave to appeal. Not every case in which a point of law of general public importance is involved is necessarily one for the House of Lords, because the point may be so clear as not to require further argument, or it may be that the law has stood and been acted on for so long that it would not now be right to disturb it.
I have seen some criticism of the fact that the Bill does not give an appeal as of right—that is, without leave—in cases of habeas corpus, but I think this criticism is misconceived, though this is naturally a point which I shall be only 251 too glad to consider at a later stage of the Bill. Here I will only remind your Lordships that leave is always required for any appeal to the House of Lords, and I think this must continue if the right of appeal is not to be abused. So far as habeas corpus is concerned, I cannot think of any case in which an applicant would wish to appeal except on a point of law, or that the Divisional Court would ever refuse a certificate in any case which was fit for appeal.
I need not now detain your Lordships with a description of Clauses 2 to 9 of the Bill which contain the necessary incidental and procedural provisions relating to appeals under Clause 1. These are all important matters, but they do little more than fill up the gaps in the existing law dealing, with appeals from the Court of Criminal Appeal and make corresponding provision for the new right of appeal from the Divisional Court. Clause 10, as your Lordships will see, provides for an appeal from the Courts-Martial Appeal Court corresponding to the appeal from the Court of Criminal Appeal, subject to a number of minor modifications which are needed in order to take account of the special position of a person who is appealing from the decision of a court-martial.
I now turn to the provisions of the Bill relating to contempt of court. Contempt may be either criminal contempt or civil contempt. Criminal contempt consists of words or acts obstructing or tending to obstruct the administration of justice. It may take the form of contempt in the face of the court, by insulting the Judge or refusing to give evidence; or of obstructing the parties or other persons engaged in litigation; or of written or spoken comment which interferes with the course of justice. Civil contempt or contempt in procedure consists of disobedience to an order of the court—as, for example, in connection with proceedings relating to wards of court. The great difference between civil and criminal contempts is that there is no right of appeal against an order made by the court in a case of criminal contempt.
As your Lordships probably know, this branch of the law has recently come in for a good deal of attention and criticism, largely on account of this absence of any 252 right of appeal in cases of criminal contempt, but also on account of the way in which the law operates in cases where newspapers have published comment on pending proceedings, or where there has been some disclosure of information about proceedings which have taken place in chambers or otherwise in private and not in open court. As your Lordships know, my noble and learned friend Lord Shaw-cross has already introduced a Bill of his own on this subject which would give a right of appeal in cases of criminal contempt but which does not make any alterations of the substantive law in the way which the Government's present Bill now proposes.
Clause 11 of our Bill deals with the case of contempt committed by anyone who publishes or distributes any matter which is calculated to interfere with the course of justice in connection with proceedings which are pending before the courts or which are imminent at the time of the publication. Proceedings may be imminent where, for example, no one has yet been charged with a crime but an arrest is hourly expected. The present law is undoubtedly open to criticism to the extent that anyone who publishes comment in cases of this kind does so at his own risk and it may turn out that he has been guilty of contempt of court even though he had no idea, and could not reasonably have been expected to know, that proceedings were pending or imminent.
Clause 11 provides a new defence in cases of this kind for anyone who can show, first, that at the time of publication or distribution he did not know and had no reason to suspect that the proceedings were pending or imminent, or that the newspaper, or whatever it may be, contained offending matter, and—and I repeat "and"—that he had taken all reasonable care to find out what the position was. This defence is very similar to the well-known defence of innocent dissemination which is available under the law of libel to anyone who can show that he has been the innocent distributor of a book, newspaper or other publication containing some libel of which he was quite unaware. Under subsection (3) the burden of establishing the new defence will be on the defendant. This is only right, for we must do nothing to make it easier for people recklessly to publish 253 anything, whether in a newspaper or elsewhere, which tends to interfere with a fair trial. The last thing we want in this country is trial by newspapers. I think, however, that those most closely concerned with these matters will find that the new clause gives them all the protection they can reasonably require.
Clause 12 deals with the publication of information about proceedings which have taken place in chambers or in private, a matter about which the present law is obscure. There has been a good deal of criticism of this and we do not think it right that the obscurity should be allowed to continue. The mere fact that proceedings may have taken place elsewhere than in open court is not in itself ally reason for treating the leakage of information as a contempt. The conditions in which courts might properly sit in private were laid down by this House in 1913 in the classic case of Scott v. Scott, to which we have paid close attention in framing Clause 12. What it comes to is that a mere publication of information is not by itself to be treated as contempt of court, except in cases relating to the welfare of infants or to persons suffering from mental illness; cases where the court sits in private, for reasons of national security; cases where the information relates to a secret process which is in issue in the proceedings, or, fifth; cases where the court has power to prohibit publication of information and expressly does so.
I was rather surprised that The Times this morning seemed to have some difficulty with regard to that last provision. I thought myself it was perfectly clear, because, as your Lordships will see, the paragraph in question makes it a contempt to publish any information of a kind of which the court has expressly prohibited publication, provided the court has power to do so. And the court's power to prohibit publication may derive from Statute—for example, Section 4 (3) of the Defence Contracts Act, 1958; from the rules of procedure of Mental Health Review Tribunals, made under Section 124 (2) (c) of the Mental Health Act, 1959, or from its own inherent powers—for example, where publicity would defeat the object of the proceedings. It seems clear that the words in parentheses in the paragraph, "having power to do so", are important 254 to ensure that courts cannot turn publication into contempt merely by issuing a prohibition against it. I hope that that explanation will clear up a point that seems to have created some worry. Nothing in Clause 12 will have the effect of making something punishable as contempt of court which could not have been punished as contempt under the existing law.
I now come to Clause 13, which gives a general right of appeal in cases of contempt. This goes rather further than Lord Shawcross's Bill, for it deals with all cases of contempts, criminal con-tempts and civil contempts alike, and it also deals with the case of contempts committed before the Court of Appeal or Court of Criminal Appeal, as well as before the High Court or an inferior court. What we have done is to give a perfectly general right of appeal which will in most cases be to the Court of Appeal, but will be to the Divisional Court of the Queen's Bench Division in the case of an inferior court such as quarter sessions, which the Divisional Court is normally concerned to supervise. When the Court of Appeal or the Divisional Court is exercising appellate jurisdiction there will be a further and second appeal to the House of Lords on the same conditions as those provided by Clause 1, that is to say, where a point of law of general public importance is involved. On the other hand, where the Court of Appeal or the Divisional Court or the Court of Criminal Appeal decide for the first time on a question of contempt, there will be a general right of appeal, with leave, to the House of Lords. Your Lordships will see that by Clause 13 (4) so much of the subsection in Clause 1 as limits the right of appeal to points of law of general public importance does not apply here.
Your Lordships who are familiar with these matters will see that the Court to which an appeal is to lie in contempt cases has been chosen with a view to interfering as little as possible with the existing channels of appeal. I know it has been suggested that all appeals in cases of this kind should go direct to the Court of Appeal. I do not think this would always be appropriate, as, for example, in cases where the contempt has taken place before the Court of Criminal 255 Appeal, and I believe that what we propose will be found to work satisfactorily in practice.
Here I should like to take the opportunity of saying that, while there has been considerable pressure for the provision of a right of appeal in cases of contempt of court, for reasons which I well understand and with which I sympathise—for no doubt it is unsatisfactory in principle that anyone should be undisputed judge in his own cause—I should be somewhat surprised if much use were made in practice of these new provisions. Contempt in the face of the court is a rare occurrence, and the judges must have power to punish it promptly where it occurs, but I do not think there has been any suggestion that in these cases they have acted harshly or oppressively. I believe that the points on which the present law of contempt is most open to criticism are those dealt with in Clauses 11 and 12 of the Bill, and that in the case of criminal contempts dealt with by the Divisional Court of the Queen's Bench Division—and it is cases of this kind which attract most attention—the relaxation of the law we are now proposing in favour of newspaper editors and others will make it much less necessary to rely on a right of appeal than might otherwise have been supposed.
It remains for me to deal with the amendments in the law of habeas corpus made by Clauses 14 and 15 of the Bill. These clauses deal with matters of some technicality, and I hope your Lordships will forgive me if I explain the background in some little detail. The writ of habeas corpus ad subjiciendum is, of course, an extremely ancient remedy and ranks high in the history of our constitutional liberties. There is no need for me to-day to describe the part which it has played in helping to secure the supremacy of the rule of law. All I need say is that the existence of the right to have the legality of a person's detention tested by means of habeas corpus is as important to-day as it has ever been, and the operation of the writ is not, of course, confined to this country.
An application for habeas corpus may be either civil or criminal. It is criminal where the applicant is in custody under a sentence passed in criminal proceedings where the application is made in con 256 nection with proceedings in which the applicant may be punished for an offence. This may be by either an English Court or by a foreign court where there has been a request for extradition. A civil application for habeas corpus may be made where anyone is deprived of his liberty otherwise than in criminal proceedings—for instance, where a child is detained by someone who is not entitled to his custody, or where it is desired to question the detention of someone suffering from mental illness.
The circumstances in which the right to apply for habeas corpus may arise received a good deal of attention recently in some litigation concerning a Mr. Hastings, who alleged that his conviction by the Crown Court at Liverpool was, for technical reasons, a nullity and that his detention in prison was therefore unlawful. His first application to the Divisional Court of the Queen's Bench Division, which was then presided over by my noble and learned friend Lord Goddard, was dismissed. Mr. Hastings thereupon applied afresh to another Divisional Court, this time presided over by the present Lord Chief Justice, my noble and learned friend Lord Parker of Waddington. The grounds of his application were exactly the same as on the previous occasion, but he alleged that an applicant for habeas corpus still retained the right submitted to have been conferred on him by the Act of 1679 to apply from one Court or Judge to another until he finds a Judge who is prepared to grant his application. The Divisional Court, after an exhaustive review of the law, held that this was no longer the case and that since the merger of the old Common Law Courts and the Court of Chancery in one High Court of Justice in 1873, an application which had been heard by one Court could not be renewed before another.
Undaunted by his failure before my noble and learned friend Lord Parker of Waddington, Mr. Hastings then went to the Divisional Court of the Chancery Division which confirmed the views expressed by Lord Parker of Waddington and his brethren. In the Chancery Divisional Court Mr. Justice Harman, as he then was, said:It is always sad to be stripped of any illusion and I, like. I expect, most lawyers, have grown up in the belief that in cases of habeas corpus the suppliant could go from judge to 257 judge until he could find one more merciful than his brethren. That illusion was stripped from me when I read the report of the decision in the Queen's Bench Divisional Court last year in this very case.In the Hastings cases the Courts were concerned only with the supposed right to apply from one Court to another during term-time when the Divisional Court was sitting. They were not concerned with the right to apply from one Judge to another, wherever he might be—whether at his house or on the golfcourse—when the Courts were not sitting. This, however, is a matter which ought not to be left in doubt, and subsection (2) of Clause 14 accordingly provides that once an application for habeas corpus has been made, whether in a civil or a criminal case, no other application may be made on the same grounds to another Court or Judge unless fresh evidence is brought forward in support of it. The subsection also provides that no such application is in any case to be made to the Lord Chancellor, thus abrogating the ancient rule enshrined in the Act of 1679. Applications to the Lord Chancellor are rare, but they do occur; indeed, my Lords, one was made to me some five years ago. In modern times, and in view of the change in the law which I have mentioned, applications to the Lord Chancellor are highly inconvenient, not only to me, and something of an anachronism; and I am satisfied that the liberty of the subject will not be injured by their disappearance.
The effect of Clauses 14 and 15 of the Bill read together is this. It will still be possible to apply for habeas corpus to a single Judge as well as to a Divisional Court. But in a criminal case a Judge sitting alone will not be able to refuse the writ but must, unless he grants the application—this, in effect, sets the man free—refer it to a Divisional Court of the Queen's Bench Division. From the Divisional Court both the applicant and the person concerned to uphold the legality of his detention will be able to appeal to the House of Lords under the conditions laid down by Clause 1; that is to say, if the Divisional Court certifies that a point of law of general public importance is involved, and leave to appeal is given by the Divisional Court or by the House of Lords. This right of appeal for either side in a criminal case of habeas corpus is entirely new, and gives 258 effect to the desire expressed by the Lord Chief Justice and the other Judges in the recent Hastings cases. In the case of civil applications for habeas corpus—which, as I have said, may arise where someone is concerned to question the detention of an infant or a mental patient—the applicant for habeas corpus has always had a right of appeal from the Divisional Court to the Court of Appeal and thence, with leave, to the House of Lords. We now propose to give a right of appeal to the other side as well, for questions of law of consideraable importance, for example, to the working of our social services (noble Lords who were interested in the Mental Health Bill will remember that we discussed that sort of point at that time) may easily arise in these cases which ought to be reviewed and settled by the House of Lords. But in a civil case, unlike a criminal case, the applicant for habeas corpus will not be liable to be again detained if the decision on appeal goes against him. This is the result of subsection (3) of Clause 15.
My Lords, I am sorry to have had to deal with this matter at such length, but your Lordships will see at once how important it is, and I hope the House will agree that the changes we propose do what is necessary to fill out the gaps and remove the anomalies in this branch of the law The only other Clause I need mention to your Lordships is Clause 16. The effect of this is that where a conviction before a magistrates' court or quarter sessions is brought up for review by the Divisional Court of the Queen's Bench Division, that Court, if it finds that the court below has passed a sentence which it had no power to impose, will be able to pass the right sentence instead of quashing the conviction, which it has to do at present. The present state of the law was the subject of frequent criticism by my noble and learned friend, Lord Goddard, when he was Lord Chief Justice, and I do not think that any of your Lordships will quarrel with what we propose.
I hope that I have said enough to convince your Lordships that this is a Bill of real importance in the development of the law, and that it is in full accordance with the spirit of liberty which has always characterised the common law. The Bill proposes considerable changes. It gives a right of 259 appeal for the first time in the event of the many important criminal matters coming before the Divisional Court of the Queen's Bench Division. It deals, virtually for the first time in an Act of Parliament, with both the substantive and procedural aspects of the law of contempt, and finally it amends the law of habeas corpus which was last considered by Parliament in the year 1816.
I have no doubt that the Bill needs, and will receive, close scrutiny in Committee, and I sincerely hope that that will be the case. I believe, however, that it represents a considerable improvement in the machinery of justice, and I am glad to see that it has been described as being replete with liberal provisions relating to the criminal law. It is in that spirit that I commend the Bill to your Lordships, and I beg to move that it be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.43 p.m.
§ LORD SILKIN
My Lords, the House will appreciate the learned and erudite manner in which this Bill has been introduced by the noble and learned Viscount and will also agree with him that the Bill is a matter of great importance. Her Majesty's Government are to be congratulated on the speed with which they have dealt with a number of subjects which, in recent months and years, have given rise to some criticism and dissatisfaction. Whether in fact the Bill does all that was hoped for is a point with which we shall have to deal in the further stages, as the Bill proceeds.
The noble and learned Viscount devoted a considerable amount of time at the outset of his remarks to the general question of appeals, and it is a fact that appeals are an important, indeed a vital, feature of British law and administration. That allows for the possibility of human fallibility and error in our institutions and in our personal judgments; and from experience there is no doubt that appeals have been shown to be necessary. I have had considerable personal experience of appeals against decisions of local authorities and I have found that those authorities were wrong—at least in the view of the appellant 260 tribunal—in about one case in three. It can be said that if there had been no appeal there would have been a substantial injustice in that number of cases.
I do not know how often the courts themselves are wrong. My guess would be that about one case in four is upset on appeal. I may be wrong, but I believe I am not very far out. If that is so, it indicates the great importance to the subject of being allowed to put his case before a higher tribunal; and, if I am right, in one case out of three, four or five his judgment is confirmed on appeal. Furthermore, it often happens that there is a further appeal from the appellant court to a higher court and that, again, is often allowed; so, while I make no criticism, of course, of the fact that one court may disagree with another, that does indicate the fallibility of judgment, even in the highest quarters, and the need for making appeals as widespread as we possibly can.
Generally speaking, there is no criticism about the right of appeal in civil cases. To me, as a layman, the extraordinary thing is that appeals in criminal cases, or quasi criminal cases, which affect the liberty of the subject are much more restricted—they certainly have been and still are under this Bill—than appeals in civil cases. The noble and learned Viscount gave one possible reason why that is so: his fear of congestion in the courts. I wonder whether that is really a valid reason. If, in order to do justice to the subject and to preserve his freedom from imprisonment, it is necessary to increase the facilities for appeals, then surely it is the business of authority to provide these increase facilities; and I think it is quite wrong to say, "These are the facilities that exist. They are to remain as they are for all time and we must do nothing to congest these facilities." The real test is: are additional facilities necessary to give every person who is in peril of his freedom the right to a further opportunity of having his case considered?
These are general remarks, and my friends and I propose to go through this Bill at the Committee stage and see how it measures up to the general considerations which I have laid down. I want now to turn to one or two aspects of the 261 Bill in rather more detail. The first part of the Bill deals with appeals to the House of Lords in criminal cases and lays down that there shall be an appeal, with the leave of the Court below—that is, the Divisional Court or the Court, of Criminal Appeal, as the case may be—to the House of Lords. But it restricts such right of appeal to cases where it is certified by the Court below (that is, the Court which has itself already come to a decision against the proposed appellant) that a point of law of general public importance is involved in its decision.
The difference between that and the existing law is that under the existing law it has be a point of exceptional public importance, whereas this has to be a point of general public importance. It is difficult to foresee what will be the effect of that change; whether it will permit of a large number of appeals to the House of Lords or not. My own provisional view, for what it is worth, is that there is nor a great deal of difference between the two conceptions.
But the appellant also has to satisfy a second condition, and that is that it must seem to the same Court, or to the House of Lords if that Court is not satisfied, that the point is one which ought to be considered by the House of Lords. Frankly, I do not understand where the two may differ. Once a point has been agreed to be a matter of general interest, general public importance, I do not understand in what circumstances it could be a matter which ought not to be considered by the House of Lords. But, there again, I am content to leave that until a later stage when we can thresh this matter out.
But this procedure is to take the place of the present Attorney General's fiat. I certainly do not want to advocate the retention of the Attorney General's fiat. But the noble and learned Viscount made a strong point of the fact that the Attorney General may himself have been involved as an advocate in a particular case and it is then rather difficult for him to have to be asked to give his fiat that this is a matter of exceptional public interest. I respectfully would not agree. Let me say to the noble and learned Viscount himself—and I say this in no flattering sense—that I would feel perfectly confident in the noble and learned Viscount's judgment, even if he had been in the case as advocate, to decide whether 262 or not he ought to exercise his fiat on the ground that it was a matter of exceptional public interest. And, as the noble and learned Viscount's predecessor, the noble Viscount, Lord Simonds, is here, I will pay him the same compliment and say that I would trust him to do the same; and I believe that any Attorney General, even though he might hold a political appointment, could be well trusted to exercise his discretion in a fair and judicial manner.
But if the case against the Attorney General is that he has been in the case, surely there will be the same objection to the Court to which the appellant, or prospective appellant, applies. Your Lordships will remember that they have only just given a decision and the appeal is against their decision, and if there is to be a prejudice, a Court is just as likely to be prejudiced in desiring that there should be no appeal against their decision as the Attorney General. In point of fact, I do not believe the Court will be prejudiced and I do not believe that a Law Officer of the Crown would be. So I myself would not attach great importance to the objection that the noble and learned Viscount has raised to the fact that the Attorney General has to issue a fiat before an appeal can be allowed. Nor would I attach very great value to the change which has been made, although I recognise that the test is to be possibly a lighter one: that is, to be of general importance as against exceptional importance. But even if one were retaining the Attorney General's fiat one could quite well make that improvement.
Nevertheless, I feel on balance that I would support the change, because it is not merely a matter of whether appeals will be facilitated: I think it must appear to the subject to be fair that such decision should be made by a Court of law rather than by a political officer of the Crown, however eminent he may be in the field of law and however trustworthy. And I think the general public would be more satisfied if this decision rests with the Court. But do not let us by any means overestimate the improvement in the position. In actual practice, apart from the fact that the test is a lighter one, I doubt whether the Court would exercise their discretion substantially differently from the way the Attorney-General would have done.
263 I should now like to say a few words about the amendment of the law relating to contempt of court and to appeals on habeas corpus proceedings which the noble and learned Viscount dealt with under Clauses 13 and 14. In cases of appeals against contempt, the restrictions against appeal are similar to those applicable to the criminal law, though I think that they are slightly less onerous. There, again, I do not want to go into detail. But since the noble and learned Viscount has referred to The Times of to-day, I should like to draw his attention to some of the other items in their leading article. If I may say so, it is a very well-informed leading article—I thought so—on this question of contempt of court and what they state to be certain omissions from the Bill.
First, they suggest that it might have been possible to introduce into the Bill provisions for the removal of doubt as to what constitutes contempt, and they give a number of instances: first, the limits within which the judicial conduct of a Judge may be criticised in the Press or otherwise than in Parliament, where of course the position is open because Judges are completely vulnerable in Parliament. But in the Press or outside, to what extent is it permissible to criticise the judicial conduct of a Judge? We know—and there have been cases—that it is certainly not permissible in court to say offensive things about Judges, and only a fool would do so. But Judges have sometimes laid themselves open to criticism. There have been recent cases where that is so. Sometimes the criticism has been not very well informed, but there have been cases and I need not mention names. Your Lordships will remember one quite recently. To what extent does that constitute contempt of court?
Then, they mention the propriety of commenting on the sentence of a court while there remains any possibility of appeal—how far should that be permitted?—even though it may be in the public interest that such comment should be made. And how far should the broader public interest which may be served by publication be regarded as available as a defence against alleged contempt? The Times, having suggested that these points are omissions from the Bill, rather illogically then go on to say that they do not suggest these questions should be 264 dealt with by specific amendments of the law. I am very relieved to hear that that is so, and I may perhaps be relieved of the obligation of having to argue them before your Lordships in Committee. But what they do say is that the existence of these questions underlines the necessity for an appeals procedure which would give the Judges themselves an opportunity to arrive at a consistent body of law which takes into account other matters of public concern, such as the freedom of discussion. The surest way of effecting this, they say, would be to allow all appeals to go to the Court of Appeal as a matter of course, and thence by leave to the House of Lords.
I should like to identify myself with that view. Nobody who has listened to the explanation of this Bill by the noble and learned Viscount will fail to agree that the procedure set out in the Bill is very complicated, and it seems to vary from one place to another without, so far as one can see, very satisfactory reasons. The Bill lays down three types of procedure for appeals: one type of appeal is n the case of appeals which would reach the Court of Appeal; another is, as in some cases dealt with by the Bill, where there are appeals from the court of first instance direct to the House of Lords; and the other is in cases from an inferior court, through the High Court, to the House of Lords. In some cases the appeal to the House of Lords is simply by leave of the Court of Appeal; sometimes as of right; and sometimes, as in criminal cases and, to a modified extent, in contempt of court cases, only on a certificate of the lower court that a point of law of general public importance is involved.
I should have thought that, while we were dealing with this question of appeals, there was a case for considerable simplification; and, in my view, the simplification should be that there should be an appeal as of right to the Court of Appeal and then an appeal, by leave of the Court of Appeal, to the House of Lords. I do not think that that would unduly cumber the judicial organisation of this country; and, even if it did, I think that, if it were in the interests of justice, we ought to create the necessary organisation to enable such appeals to be made.
Many of the points that I have raised can, I think, be appropriately dealt with 265 at a later stage on the Bill, but I thought it right to raise them because, in my view, apart from being Committee points, they really raise questions of general public interest and of principle. In the meantime, I am sure that the whole House will welcome this Bill and will welcome the fact that the Government have applied themselves to dealing with a number of matters of considerable public interest, and we look forward to the further stages of the Bill.
§ 4.4 p.m.
§ LORD PARKER OF WADDINGTON
My Lords, I should like, if I may, for a few minutes to discuss certain aspects of this Bill—a Bill which intimately concerns me—and, on the whole, to commend it to your full support. Now the Divisional Court of the Queen's Bench Division, as you know, has a very varied jurisdiction. It has appellate jurisdiction, dealing with appeals on points of law from magistrates and from quarter sessions. In addition, it has original jurisdiction to grant or refuse writs of habeas corpus and orders of certiorari, prohibition and mandamus—and in that last respect I venture to think that it is a very important Court of the land. Yet there is no appeal in the many cases which are criminal causes or matters—indeed, I might say in the overwhelming majority of cases—and in those cases difficult points of law occur; important points of law which are worthy of the consideration, not merely of a higher Court but of the highest Court in the land.
Apart from this, the Divisional Court, as a final Court, has always treated itself as bound by its own decisions, and it often occurs—indeed, it is inevitable—that a decision will be given at an early stage of some new legislation which, as time goes on, proves to be an embarrassment. I think the Judges of the Court have themselves learnt how to distinguish on many occasions, but it is clearly a matter in which there should be an appeal and an authoritative ruling given as to what is the law on the subject. It is for those two reasons—important questions of law, and the difficulty of being bound by one's own decisions—that has prompted me already, in my very short term of office, to feel constrained to advocate an appeal; and I am happy to say that, in doing so, I was following the noble and 266 learned Lord, Lord Goddard, whose opinion I know we all value so much.
Now one reaches the stage that there is to be an appeal from the Divisional Court, and the next question is: to what Court should the appeal go, and under what conditions? There are no doubt some who think that every appeal from the Divisional Court should go to the Court of Appeal and from there, by leave, to the House of Lords. My Lords, if that were introduced it would be a revolutionary change, because in its history the Court of Appeal has never as yet had jurisdiction in criminal matters. Moreover, merely from the practical aspect, I have little doubt that the Court of Appeal has as much work as it feels it can do. But the real reason, I venture to think, is that unless an appeal were to go direct to the Appellate Committee of your Lordships' House, it follows that there would be a multiplicity of appeals. We are here dealing with criminal matters, and it is vital, I venture to think—and I believe everyone would agree—that in a criminal cause or matter finality should be reached at the earliest moment. Nobody can suggest that your Lordships' House is not a fit tribunal to consider these important questions of law. There is nothing novel in it, because, as you know, appeals in criminal matters that come from the Court of Criminal Appeal, the more important ones on indictment, go straight to your Lordships' House as it is.
Secondly, under what conditions are the appeals to be permitted? I am dealing for the moment only with appeals from the Divisional Court. It is true that, in general, that Court is already dealing with points of law, and it may be suggested that there should be an appeal to your Lordships' House on every point of law. But fact and law can never be put into watertight compartments. I suppose that half the appeals to the Divisional Court take this form: that, as a point of law, there was no evidence upon which the magistrates could so find. My Lords, if appeals in all those cases were to come before your Lordships' House, it would not be a question of the machine being clogged, but a question of taking a hammer to crack a nut. That is not to say that there are not very important points of 267 law; but the whole question is to introduce somewhere a sieve through which will pass the points of law which do not merit further consideration—and it is with that in mind that the formula that is to be found in Clause 1 of this Bill has been arrived at.
There must be a certificate from the lower court that there is a point of law of general importance, and it must be one which is worthy of consideration by your Lordships' House. I know that it has been said that if the point is of general public importance then it must be worthy of consideration by your Lordships' House. It does not work out that way, however, because there are many vital principles of law which may have been laid down for years and years. The certificate of the lower court must state that the case raises a point of law of general public importance, but clearly it would not, in such a case as I have mentioned, be worthy of consideration by your Lordships' House. That is not to say that in many cases the old decisions ought not to be reviewed; it does mean that every case must be considered on its merits.
Now, my Lords, I should like to turn for a moment to the Court of Criminal Appeal. There is already machinery for appeals to your Lordships' House through the Attorney General's certificate. There the formula is rather more strict. It must be a point of law of exceptional public importance; and not only that: it must also be in the public interest that there should be an appeal. I do not subscribe in any way to a criticism of the way in which Attorney Generals in the past have exercised their powers. For my part, I see no reason why that procedure should not continue, were it not for the further provisions in this Bill: because I venture to think that it would be quite illogical that appeals from the Divisional Court should go to your Lordships' House by leave of the Divisional Court, whereas appeals in criminal cases heard on indictment, cases of far greater importance, should reach your Lordships' House only through the certificate of the Attorney General. I venture to think that there must be uniformity in this respect, and that the proper course would be to have the sieve which is introduced by Clause 1 of this Bill. Incidentally, although it 268 may not be very different, it does not introduce quite such a rigid test. A point of law of general public importance is not quite so stringent as one of exceptional public importance; and there is no longer the element that it must be in the public interest.
Of course, it is quite true, as has been pointed out, that if the lower court does not certify that there is a point of law of general public importance, there is an end of the matter. But I earnestly hope that your Lordships will feel able to believe that the Divisional Court or the Court of Criminal Appeal will look at each case carefully and decide it on its merits. Indeed, I think the procedure for which we should work should be that if any one of the three Judges sitting felt that it was such a case worthy of consideration by your Lordships' House leave should be given. The noble Lord, Lord Silkin, suggested, as I understood it, that a Court which had just tried a case might be prejudiced and was not the proper body to consider the matter dispassionately and decide.
§ LORD SILKIN
My Lords, I must correct that statement. I think, and hope, that I said the very reverse. I said that the Court would be no more prejudiced than the Attorney General; and I disclaimed the fact that the Attorney General was prejudiced.
§ LORD PARKER OF WADDINGTON
I am glad to hear that from the noble Lord. But I would say that such a Court is in the very best position to decide whether there is a point of law; whether it is a difficult point of law, and whether it is one which merits a consideration by your Lordships' House. Believe me, my Lords, presiding, as I do, in that Court, I do not want to take over the burden myself—it is much easier that criticism should be made from time to time of the Attorney General than of myself. But I do feel that it is the proper machinery for producing a sieve in these cases.
I want to say a few words about the matter of habeas corpus. Here again, provision has been made for an appeal direct to the House of Lords from the Divisional Court, which now alone can refuse the writ. If a single Judge is minded to refuse the writ, he must refer the matter to the Divisional Court, and in that way it can reach the House of Lords. I have seen it suggested that there 269 should be an appeal as of right in every case of an applicant for habeas corpus: that it should go to the Court of Appeal, and from there, by leave, to the House of Lords.
It is said that it is the right of every citizen that that should occur. My Lords, that sounds all very well in theory; but I would recommend anyone who is so minded to come to the Divisional Court on Tuesdays and Fridays. There he will see that by far the majority of these applications are, on the face of them, hopelessly misconceived. The vast majority are made by prisoners serving long terms of imprisonment, serving sentences imposed by a court of competent jurisdiction from which an appeal has fed to the Court of Criminal Appeal and which has been refused. Those applications are misconceived. But if the suggested course of appeal is to be invoked, such men, who have nothing to lose, who will do anything for a day out of prison, will immediately go to the Court of Appeal. When their application is refused there, they will apply for leave for appeal to your Lordships' House; and when that is refused they will go to the Appeal Committee of your Lordships' House. I venture to think that the whole machine would be clogged, and that there is absolutely no need for it. Any applicant for a writ of habeas corpus who has a point of law to be considered will have the matter referred to the House of Lords.
Lastly, I would say a word or two on the vexed subject of contempt of court. I feel strongly that a case has been made out for what I may call the newspaper type of appeal. These cases do raise points of law. They may well raise points of law under the clause in this Bill which gives newspapers a further defence; and it will, under this Bill, always be possible for any question whether in law a contempt has taken place to reach your Lordships' House and to reach it direct; to avoid the multiplicity of appeals and to ensure that finality is quickly reached.
But what does concern me—and I hope at a later stage your Lordships will carefully consider it—is the question of contempts in the face of the court—what I may call the "tomato" type of case. It is a difficult question. Happily, it does not occur often. But what is to be done? It is said: "Oh, but there 270 should be an appeal." Nobody has yet suggested, so far as I know, that there is any case in which a penalty or sentence imposed by a Judge for a contempt before him has been in any way oppressive. It has never been suggested that his powers have been abused, and I venture to think that they never will be. But then the old argument is used: "If you are right, what is the harm in putting it in?" I myself think there is a great deal of harm. Once you have an appeal these people, happily few, who have been guilty of contempt, no doubt from some form of grievance or mental aberration, will avail themselves of the right of appeal. It is not a dead letter; if it is there they will appeal. What really concerns me is whether, in the result, the authority of the Court below will not be undermined.
May I give an example? Suppose that a tomato is thrown at a Judge of the High Court, and suppose that it is in such circumstances that he sends the party to prison for three or seven days and adjourns the case. Immediately the party concerned will go to the Court of Appeal. Is the Court of Appeal to stop the case on which it is engaged and listen to that, or will they not grant the party bail for 24 or 48 hours until they can deal with it? Then when he comes before the Court of Appeal, he is full of repentance. What can the Court of Appeal do but to say, We accept your apology and send you back"? Then that same man comes back before the lower Court on the adjourned proceedings. Where, I venture to think, is the dignity and authority of the Judge?
One gets to the argument then, "Nobody should suffer a penalty. Nobody should go to prison without an appeal." But, with all humility and deference, I ask: what would be the position in the Houses of Parliament? They both have power to commit to prison for contempt of court. What would happen if somebody should say, "Oh, but that is subject to an appeal to some outside body"? Is not the answer to that that it would jeopardise and interfere with the dignity and authority of your Lordships' House? I feel that there is a real danger here; that if this purely theoretical argument, that there should be an appeal in these cases, is persisted in, it will jeopardise the authority of the courts. There are 271 many assize courts now sitting throughout the country, and I venture to think that it is a remarkable thing to see the dignity and decorum with which their proceedings are conducted. I do not hesitate to boast about it, and I think that anything which interferes with the authority of the Judge to deal with 'Miners summarily before him would be a most retrograde step. That is a matter which I hope your Lordships will consider at a later stage.
§ 4.23 p.m.
§ LORD DENNING
My Lords, this Bill is of considerable constitutional significance, and as it has been belittled in some places I hope your Lordships will give it a warm welcome, because it deals with three matters of great importance: first, the jurisdiction of your Lordships' House, secondly, the law of contempt of court and, thirdly, the law of habeas corpus. Take the jurisdiction of your Lordships' House. Right from the earliest times in the records of this House it has been the ultimate tribunal which has had power to call to itself the record of any court in the land to be examined for error, so that this House judicially can, as the old words of the Writ of Error say:… do right according to the law and custom of England.There has been within the last 80 years one category of court from which no appeal has laid at all: I refer to the Divisional Courts. They are Courts dealing with matters of great significance to ordinary people. They hear what are in effect appeals from magistrates on points of law. If they have a difficult point of law, the magistrates can state a case for the opinion of the Divisional Court, and the Divisional Court, if it is a criminal cause or matter, gives a decision which is final and binding on itself without appeal.
Let me give your Lordships one illustration of the troubles which occur. It goes back to the last century. There was a question under the Betting Act whether Tattersall's enclosure at Kempton Racecourse was indeed a place of resort kept for persons resorting thereto for the purpose of betting. It was held by the Divisional Court—cases one way and another were cited—that it was quite illegal and contrary to the Act for the 272 bookmakers to be there laying bets. That was final, un-appealable. I think it was Mr. Asquith who thought of a way round it. One shareholder of the company brought an action against the company to declare that the company could not do it. It was a friendly action which was fought on a device. It reached your Lordships' House, and the decision was overruled. That is only one case where it was done by that device.
But there are a large number of cases, such as those dealt with in this Bill, which cannot get to your Lordships. There may be decisions by the Scottish courts differing from those of the English Divisional Courts. They are irreconcilable. How are they to be reconciled? It is clear that there should be an appeal to your Lordships' House in that important category of case. Furthermore, it should be not a general appeal. As my noble and learned friend the Lord Chief Justice has said, very often it is simply a case stated on whether there was evidence on which the magistrates could find so-and-so. That is not really a point of law, though we treat it as one to get it before the courts. But in any point of general public importance there is, and by this Bill will be, an appeal to your Lordships' House. That is the first point I would mention.
The second point relates to contempt of court. Your Lordships will have read of cases where newspapers have commented on pending trials, like that where a man was arrested and one newspaper came out with headlines accusing him of being a vampire, and where the Divisional Court sentenced the editor to three months' imprisonment and fined the newspaper £10,000. Is there not to be an appeal in those cases, at all events where they involve a point of law or, at any rate, as this Bill provides, with leave either of the Court or the House of Lords? What about the recent instance where a newspaper concern in the United States distributed newspapers here which had details in them of a case pending here? Is that a contempt of court or not? This Bill provides for amending the law so as to give reasonable protection to newspapers.
But there are a large number of points which are left unsettled. These points ought to be elucidated by an appeal to 273 this House in contempt cases of this kind. But what about the cases my noble and learned friend has mentioned of contempt in the face of the court? There is a difficult question. May I give your Lordships one or two examples of the problems that arise? I think the first one that might interest your Lordships was in about 1631, where, in the old Norman French, it is recorded against a man that:Il jetait a brickbat against le juge qui narrowly missed.On that he was not condemned by the judge straight away. An indictment was drawn and he was convicted properly. His hand was cut off, and he was hanged in the presence of the judge.
But, ray Lords, there are different ways of doing it. In most of these cases it may be thought best, as Lord Campbell thought, that there should be either an indictment or a summons. I was once sitting myself with Lord Justice Bucknill in the Court of Appeal. We had a very dull, dry case; the atmosphere was very stuffy, and one of the people in the court got up and walked across to the window and smashed it through with his stick to let a little fresh air in. He was not committed for contempt of court: he was taken to Bow Street and summoned there, and, of course, was dealt with by the magistrate-I think he was remanded for medical observation. The other alternative is to do as was done on one occasion when I was present in court. A tomato was thrown at the Judges—I saw it myself. The Court came back in a minute or two, and committed the man to prison for six weeks.
§ LORD DENNING
No; fortunately, it missed. But there are the two machineries, to go before a magistrate or a trial court or for the Judge to deal with it himself. It is a very difficult question to know whether there needs to be an appeal in those circumstances where the Judge deals with the matter himself.
Far more difficult, however, are those cases where a witness refuses to answer a question. That is a contempt of court, and it can be punished by a Judge. There was a case a hundred years ago at the York Assizes, where there was a 274 trial for bribery at an Election. The witness was asked had he not received so much money from the election agent, and he refused to answer. He had an indemnity in his pocket, but the question was whether he might even be impeached in this House. At all events he refused to answer, and the Judge sentenced him to six months' imprisonment in York Castle and fined him £500. That would not happen nowadays. It is the fact that Lord Selborne introduced a Bill, but did not proceed further, for giving appeals in contempt of court cases. I would suggest to your Lordships that this Bill, although it needs careful consideration, is, on the whole, right to give an appeal in contempt of court cases which has not been done before. It may need working out in detail to safeguard against abuses, but on the whole, as I say, I think it right that there should be an appeal.
Lastly, I turn to the very important question of habeas corpus. Your Lordships will know that this is a great right which protects every person in this country from being detained except in accordance with the law. I was always brought up to believe—indeed, Lord Halsbury, one Lord Chancellor, said it; and another, Lord Hailsham—that if a person was detained and applied to a Judge for a writ of habeas corpus, and it was refused, he could go from one Judge to another, around the whole corps of Judges, to see whether he could be released, because there was no appeal from that decision. But my noble and learned friend the Lord Chief Justice has shown that we were in error. There is no such right to go from Judge to Judge; there used to be in the old days to go from Court to Court, from the King's Bench to the Court of Common Pleas or the Exchequer Chamber, but not from Judge to Judge. There is now only one court, the High Court, the Supreme Court. There is no right to go at all, and in those circumstances is it not right that there should be an appeal from a refusal of habeas corpus?
But an even more important change is that it gives the right of appeal to the other side. When a man has been granted his liberty under a writ of habeas corpus, the constitutional law of this country for centuries has said that no one can challenge it. That is his safeguard: when he is released under a writ 275 of habeas corpus it is not to be challenged by the prosecutor under appeal. The significance of this Bill is that it does give the right to the other side. May I tell your Lordships why I believe that to be right, with the safeguards which are there? There are two cases which I believe have given rise to this. There was a case shortly after the war in which an Army officer who had been demobilised twelve months—he was a bank clerk in Westmorland—was taken by the Provost Marshal over to Germany and there court-martialled for an offence committed while he was in the Army. And he was sentenced to two years imprisonment. He brought his writ of habeas corpus before the King's Bench and the whole question was whether he was or was not liable to be tried. That question depended on whether he was a Regular officer still on active service. The Court held that he was not; that he could be tried only within three months of demobilisation. In that case twelve months had elapsed, so the Court discharged him then and there. The Attorney General of the day thought that decision was wrong. He could not appeal against it. It may have been wrong, but he could not appeal. Nevertheless, ought it not have been possible, for the sake of all other cases, to obtain a final decision?
The other case was a case under the Mental Deficiency Acts, where there was a question of a person who had been detained under the Acts as a mental defective; indeed, he was said to have been "found neglected". In 1956, when the meaning of those words was decided in the Divisional Court, it was held that he had not been "found neglected", within the meaning of the Act; and he was released. A very serious question arose as to the meaning of those words "found neglected". The authorities could not challenge them. The man had been released under habeas corpus, and no appeal was open to them. I believe that, in consequence, some thousands of people, 3,000 to 4,000 people, were released. That interpretation of the words "found neglected" could not be challenged or questioned in any court, because there was no appeal once the man had been discharged on his application for habeas corpus.
276 Cases of great importance may be decided on habeas corpus, and there ought to be an appeal allowed to those who would detain them. This Bill has the safeguard that such a man, if once released, is not to be put back. You can get the law settled if you like, but that man who has been released should not be put back again. I suggest that, with these safeguards, this great constitutional development is quite satisfactory. There may be details to be worked out, but with those three matters which I have mentioned to your Lordships, as I say, of great constitutional consequence, I would ask your Lordships to give a warm welcome to this Bill which represents a great advance in our constitutional system.
§ 4.39 p.m.
§ LORD GODDARD
My Lords, this Bill has received so many encomiums already that there is little left for me to say. I should like to deal with one small point, a point of criticism made principally in the newspapers discussing this Bill since it has been introduced. In the articles they seem to think that the Bill is one which is restricting people's right of appeal and not giving them the right of appeal as a right. They entirely overlook the fact that in the only case with which this Bill deals, namely appeals in criminal cases to the House of Lords, the people have one appeal already. I have always understood that one of the matters which people regard as unfortunate is the giving of double appeals except in exceptional cases. A man who has appealed to the Court of Criminal Appeal has made his application or had his appeal heard as of right. If he fails in that, this Bill, so far from restricting any appeal, gives him a chance of a second appeal, but only by leave.
Your Lordships will remember that in civil cases the parties have a right to appeal to the Court of Appeal, and they have a right to come to this House if they can get leave to do so. They have to get leave to appeal to this House in a civil case. In a criminal case it is just the same—the man has had one appeal; and that is true whether his appeal has gone to the Divisional Court or to the Court of Criminal Appeal. I do not think that one wants too greatly to facilitate double appeals. It is a great misfortune to have double appeals, 277 although it is right that cases of great importance should come before this Court for final decision.
There are just a few other matters to which I wish to refer. I think there is a feeling that a great many cases may come to this Court. I rather doubt it. The noble Lord, Lord Silkin, wondered whether one in four cases were not the subject of successful appeals. So far as the Court of Criminal Appeal is concerned, I invite him to attend on a Monday morning, when I am sure my noble and learned friend Lord Parker of Waddington will be delighted to see him. During the twelve years that I sat in the Court of Criminal Appeal, the registrar made careful note of the number of appeals that were successful. We [...]ed to deal with 20 or 30 every Monday morning, and in the course of the year the number of appeals ran into 2,000 or so. The registrar calculated that between 3½ and 4 per cent. of those appeals were successful. So there is not much fear of this House being overwhelmed with appeals from the Court of Criminal Appeal. Appeals against sentence are quite a different matter. They form a large part of the successful and unsuccessful appeals in the Court of Criminal Appeal; but they will not come up here, because sentence is not a point of general importance—it is simply a matter of the facts of a particular case.
The only other thing I want to say is that I entirely support my noble and learned friend Lord Parker of Waddington with regard to his opinion on contempt in face of the court. Perhaps I may be allowed to say a word on that because I am the remaining Judge who was a target for tomatoes. It happened in the days when I was sitting in the Court of Appeal. Lord Justice Clauson and I were sitting together, and a litigant who asked for leave to appeal in a case which had been dismissed ten years before was told that he could not have leave. He went out and bought a few tomatoes and aimed them at us. I am glad to say he missed, because they were ripe ones. But one did go through the door at the side of the Court and fell at the feet of a perfectly innocent Judge who had nothing to do with the case and who said. "Good Heavens, is it raining tomatoes?"
When an incident like that occurs, it is surely right that the Court should deal with the matter in a summary way. Is 278 there really any necessity, in those circumstances, for an appeal to anyone? Judges do not give savage sentences. In that particular case we committed the man for six weeks, but at the end of a fortnight we brought him up, because Christmas was coming, and we let him out. We had always intended to do it, but we thought it a good thing to give him a little more than a fortnight straight away. Judges can be trusted not to give savage sentences which require the opinion of the Court of Appeal.
A more important matter, I think, with regard to contempt in the face of a court, is where a witness refuses to give evidence. What happens at present when a witness refuses to give evidence in the course of a case is that the Judge commits him. He is taken down and, as a rule, a night in the cells makes a great difference, and he comes back next day and gives his evidence. If he is given a right of appeal he may say, "Well, I have been told I have a right of appeal, and I will make an application to the court and possibly to the Law Society to give me legal aid", and a few other matters of that sort. What is to happen to the criminal trial which is going on? It may be a most important murder case. Is the Judge to adjourn the case because an important witness will not give his evidence? Of course, if he will not give evidence the only thing one can do is to put him in the cells, and the case may have to go on without him. This would surely put the Court into a great difficulty. I suggest to your Lordships that contempt in the face of the court should be excluded in the matter of appeal.
Another matter that has been greatly discussed in some journals is whether or not a person should have a right to go straight from the Divisional Court or from the Court of Criminal Appeal to the existing Court of Appeal. My noble and learned friend the Lord Chief Justice has pointed out that the Court of Appeal, which of course is the creation of Statute, has never had any criminal judisdiction at all. I submit to your Lordships that it is far better that cases of real importance for which permission to appeal is given should come straight to this House, where a Committee of five at least will be sitting, rather than that they should go to the Court of Appeal, because in the latter event it is an appeal from three Judges to three 279 Judges, which never seems to me to be very satisfactory. Three Judges sit in a Divisional Court, three Judges sit in the Court of Appeal, and it may not be that in a particular case—for instance, one relating to the licensing laws—more wisdom would be found in the Court of Appeal than there was in the court of first instance.
With regard to contempt generally, I am glad that it will be possible to bring matters before this House. Some reference was made by the noble Lord, Lord Silkin, to a decision of the Divisional Court some years ago, that during the time that an appeal was pending it was contempt to comment upon the sentence that had been passed. I think it was held that it was contempt. I should like to see that decision reviewed in this Court, because I always thought it was wrong.
§ 4.48 p.m.
§ VISCOUNT SIMONDS
My Lords. I shall detain your Lordships for only a few moments. I had not come here intending to speak at all. I had not intended to speak because the noble and learned Viscount on the Woolsack had been good enough, may I say, to consult me upon many aspects of this Bill, and persuaded me what a good Bill it was. Therefore, I did not intend, and I do not intend now, to rise in any spirit of criticism. But there have been one or two observations made which lead me to intervene. First of all, I should like your Lordships to get into proper perspective this question relating to contempt in the face of the court. An impression may have arisen that that is a matter of frequent happening which requires special legislation. It is the rarest possible event. During all the years that I was at the Bar, and the many years that I sat on the Bench as a Judge of first instance, I never knew such a thing to happen. It is true that I was, for the most part, in the quieter waters of the Chancery Division; but I never knew it happen, and I never heard of its happening except in three or four cases.
There was, of course, the legendary case of which your Lordships may have heard, which illustrates at the same time the indulgence which the Court extends to such cases. That was a case that happened some time ago when there were 280 two Vice-Chancellors, as they were then called, in the Court of Chancery—the one Vice-Chancellor Malins and the other Vice-Chancellor Bacon. A disappointed litigant threw an egg at Vice-Chancellor Malins, but incurred no more severe a reprimand than the observation, "That must have been meant for my brother Bacon". If I am not introducing a spirit of levity into these proceedings, may I say that that is really the spirit in which the Judges meet conduct of this kind. From time to time no doubt they have to be severe, but I do not think anybody who listens to the Lord Chief Justice of England, whom we heard with so much pleasure to-day, could disapprove of the spirit in which Her Majesty's Judges deal with conduct of this kind. I would therefore s[...]ngly urge the noble and learned Viscount on the Woolsack, if he can see his way to do so, to amend the Bill in Committee so that it excludes from appeal cases of contempt and cases of contempt in face of the court, which have to be dealt with at once.
There is only one other point with which I wish to deal. I venture to mention this because, alas! I have been so much longer a Member of your Lordships' House than any of my colleagues who now take part in the judicial work of the House that I can claim to have very long experience. Frankly, I am a little nervous lest this sieve through which appeals from the Court of Criminal Appeal must pass should prove to have too wide a mesh. Though it is too late to advocate it now, I have always had a great doubt whether there should be a third criminal trial at all. When there has been a trial, at assizes, maybe, and the matter has been thoroughly ventilated again in the Court of Criminal Appeal, I have always doubted the expediency of a third appeal; and although it is true that the House of Lords may have rendered useful service in the clarification of the law I have always doubted whether that is sufficient justification for not having in criminal cases that finality of which the noble Lord has spoken. I should myself have thought that there should be no appeal to the House of Lords; but it is too late to say anything of that kind.
I hope, however, that the mesh will be as close as possible and, with some doubt, I welcome the introduction of 281 these words in Clause 1 which make the test less rigid than it used to be under the Attorney General's fiat. I confess I should like to see just those words restored and just the same measure accorded to petitions for leave to appeal as guided the Attorney General himself. The one thing about which I felt a little doubt in the speech of the noble and learned Lord the Lord Chief Justice of England was when he suggested that leave should be given when one of three of the Judges of the Court of Criminal Appeal thought it should be given. I would much rather have heard him say that leave should be given only when a majority thought it should be given; and I hope he may be persuaded to take that view.
I have nothing further to add except that I should like to say with what pleasure I heard the noble and learned Lord, the Lord Chief Justice of England, how much I, for one, enjoyed the eloquence of his speech, and how grateful I was to find his learned predecessor succeeded by so worthy a successor. May I conclude with words that will appeal to your Lordships: uno avolso non deficit alter.
§ 4.54 p.m.
§ LORD CHORLEY
My Lords, I intervene after speeches by so many distinguished members of the Judiciary with some hesitation, but I should like to make a few comments on this important Bill. First, I should like to congratulate the noble and learned Viscount on the Woolsack, not only for his speech in introducing it, which was so illuminating, but for having provided a great deal of dynamic energy which has brought such an important Bill before Parliament at the present time. Over the period that I have been privileged to be a Member of your Lordships' House we have done a great deal in the way of improving the laws of this country, and I hope we shall continue to do so.
That has not, perhaps, been as evident on the criminal side as on the other side, and I feel that both on the side of criminal law and on the constitutional side, this Bill, as my noble friend Lord Denning has said, is of very great importance; and I should like to congratulate the noble and learned Viscount on his initiative (if I may use that term) in bringing it before Parliament at the 282 present time. I am in very general agreement with it, and if the remainder of my speech is a little critical I hope the noble and learned Viscount will not feel that my general approval is more than, so to speak, a little toned down.
First, with regard to appeals from the Divisional Court, I heartily accept everything that has been said. Their absence has long been a very serious blemish on our administrative arrangements in connection with the law. I entirely agree that that entails cases coming from the Court of Criminal Appeal to your Lordships' House in the same kind of way. I take a diametrically opposed view to that just put to your Lordships so eloquently by the noble and learned Viscount who comes from the Chancery Division, where perhaps they have not the same experience of criminal law as some of us have had of practice on the other side.
I feel that the words in the Act which gave the fiat to the Attorney General are unduly cramping, and I have no doubt whatever, speaking as, I hope, a reasonably close student of criminal law and one who has practised at assizes and quarter sessions, administered it in a very junior way as chairman of a quarter sessions and lectured on it to generations of Bar students, that we have never had the advantage of enough opinions from your Lordships' House in regard to criminal jurisprudence. Many foreign lawyers who have come here have told me that they do not think our criminal law, from the jurisprudential point of view, has been developed in anything like the same way as our admirable commercial law, common law and equity law generally.
The number of cases which have come before your Lordships' House on criminal points in the period since the Court of Criminal Appeal was established is really minute as compared with those involving civil points. Yet if one studies these, they appear as replete with the wisdom one would expect to get from the eminent Judges who deal with cases in your Lordships' House; whereas the Court of Criminal Appeal, of course, as the noble and learned Lord, Lord Goddard, has pointed out, is really overworked. Two thousand cases a year make it really impossible to gel that poise and reflection which is needed for first-class judgments.
283 I believe it would be the opinion of most of those who teach criminal law in our universities that the Court of Criminal Appeal has never really had a proper chance—and the House of Lords has never had a proper chance either, because of the constricting words of the Act which have really prevented the Attorney General from giving his fiat in a number of cases where I am sure it would have been to the advantage of the law had the fiat been given. Indeed, I should like to eliminate the words "general public" from subsection (2) of Clause 1 and leave it first to the discretion of the Court which is appealed from, and then, if it refuses, to your Lordships' House, to give leave in a proper case; as indeed they do in civil cases.
I am sorry that the noble and learned Lord the Lord Chief Justice is not here, because I cannot altogether agree that it is sufficient to rely on leave being given by the trial Court. If we take the civil Court of Appeal, time after time that Court, having tried a case, feel there is no need for it to come to your Lordships' House. But there the litigant has the right to come to your Lordships' House, despite the refusal in the Court of Appeal, and to ask your Lordships for permission to come here; and your Lordships quite frequently, bringing new vision to the problems involved, grant that permission. I have known quite a number of cases where afterwards the case was argued out and the decision given in the Court of Appeal was overruled. Therefore, I should prefer to leave it to your Lordships' House to decide, on application, whether it is a proper case to be fully considered in your Lordships' House, and I think there is a great deal of feeling in the profession that that would be a better way of doing it. There was only the other day an admirable letter in The Times from an experienced practitioner in which that point was excellently made. Those are the main points. I hope at the Committee stage an attempt will be made to leave the question of whether there should be an appeal to your Lordships' House, to your Lordships' House to decide.
I should like to say something on the subject of contempt, which has been so much discussed this afternoon. I am 284 very much in sympathy with Clause 12, and I do not think there is any need for me to say any more about that. What I do wish to deal with, though, is this question of whether there should be a right of appeal under Clause 13 from a decision of a Judge alone in what are called cases of contempt in the face of the court. The noble and learned Lord, Lord Goddard, has taken rather an extreme case, the case in which a tomato was thrown, but that is not quite a typical case. There have been a number of cases. The noble and learned Viscount, Lord Simonds, said that he had never come across one in person, but there have been a number. I have here a letter from the noble and learned Lord, Lord Shawcross, who is very interested in the whole of this problem, as your Lordships know, because he himself has introduced a Bill; and he asked me to say how much he regretted that his important engagement in Central Africa would make it impossible for him to be here and to speak in this debate.
§ A NOBLE LORD: He is ill.
§ LORD CHORLEY
He is ill now, but this letter was written before his unfortunate illness started. He said he had come across these cases in practice, and in at any rate one of them he himself thought that the Judge had come to a wrong conclusion, and that this matter had been considered by the Bar Council, of which, as your Lordships know, he was for a number of years the Chairman. I will quote from his letter:The Bar Council consider it essential that there should be a general right of appeal. They made considerable inquiries at one time, and this appears to be the only case in law in a civilised country in which a person can be sent to prison by a Court from whose decision there is no appeal.That seems to me a very important point indeed. This is the only civilised country, apparently, in the world in which a person can be sent to prison by a Court from whose decision there is no appeal. And it is not as if this were a new point. As the noble and learned Lord, Lord Denning, has pointed out, in the old days, when in a way we were much more severe than we are now, a jury used to be empanelled on the spot and the alleged contempt, which is of course a criminal offence, was tried then and there—as in 285 the case of throwing the brickbat—by the jury; and if the jury found the man was guilty, as, in the face of clear evidence like that they could hardly fail to do, the man was dealt with like an ordinary criminal. That is, in a way, much more satisfactory, because there is always a possibility outside that people who were not there will say the Judge was judging his own case.
Some of your Lordships may possibly have studied the Tichborne case. Orton, the claimant in the Tichborne case, got cross with the Lord Chief Justice of that time, Lord Cockburn, a great lawyer but a man of rather forceful character, who was sometimes a little irascible; and as a result of it quite a number of people thought Orton was being hardly dealt with. He was in fact committed for contempt of Court. He appealed to the Court of Appeal, and in his speech in argument there, a remarkable effort, he said, in effect, "This is a case where the Judges are judging in their own cause, and it is a fundamental principle of the law of England that people should not be judges in their own cause." That is why I myself feel that, despite the practicality of the arguments which have been addressed to your Lordships this afternoon by the present Lord Chief Justice and his most eminent predecessor, there is a great deal to be said for giving a right of appeal in this sort of case, and not leaving to the Judge before whom the contempt was actually committed the final say in the matter.
There is one other rather technical point which possibly one ought to raise in the Committee stage of this Bill, but I will raise it now as I am not quite sure whether I shall be here then. In any case, it is one that might be looked at in the interval. Looking at the Bill of the noble Lord, Lord Shawcross, I thought that Clause 3 of that Bill provides a procedure on application for attachment or committal where it states:Provision shall be made by rules of Court—,(a) for the hearing in public of any application in the High Court to attach or commit any person for contempt of Court"—the gravamen of the point being "the hearing in public". I wondered how that would fit in with the provisions for hearing certain types of case in private and providing that in those cases something written in the papers or elsewhere 286 would be a contempt of Court. In the four cases which the noble and learned Viscount referred to under Clause 12, if a contempt were committed in that way, so to speak, in private, would it be brought up and dealt with in public, or would it be dealt with behind closed doors in that sort of way? The noble Lord, Lord Shawcross, obviously had that point in mind when drafting his clause. It seems to me to be one of some importance, and I should like the noble and learned Viscount to look at it, if he will be so good.
I should like to turn for a minute or two to the habeas corpus side of this question—and here I have two or three points which have been worrying some of us. They are points which perhaps might be more satisfactorily raised on the Committee stage, but again in order that the noble and learned Viscount may look at them I will mention them now as quickly as possible. As the noble and learned Lord pointed out, in the case of an application for habeas corpus in a civil cause, an appeal, of course, lies to the Divisional Court, and to the Court of Appeal, as a right. The Bill we have before us this afternoon provides, for the first time, for appeals from decisions of the Queen's Bench Divisional Court in these criminal causes and matters. This change we welcome very much, of course. But here an appeal will lie only with leave, and will have to satisfy the conditions which are laid down in subsection (2) of Clause 1, on which I have already commented, because this covers not only the straight appeal in an ordinary criminal case but also these habeas corpus cases, as well. Why should applications for habeas corpus in criminal matters be dealt with on a different footing from applications for habeas corpus in civil matters? The noble and learned Viscount did just touch on this point, but I do not feel that he quite cleared it up.
There is, of course, the point that applications for habeas corpus in criminal matters are very often difficult to distinguish in substance from applications for certiorari in criminal matters—where, of course, the applicant has already been tried and sentenced by a competent Court, and is, in fact, contending that the Court acted outside its jurisdiction or in excess of its jurisdiction. I suppose it could be said that what goes for certiorari should 287 also go for habeas corpus. There is a good deal to be said for that, of course, in that type of case, but this is by no means the whole of this side of the matter.
The answer is not a complete answer, because, my Lords, there are certain types of cases, particularly cases under the Extradition Acts and the Fugitive Offenders Act, where the matter is dealt with, in the first instance, by a magistrate, who has to pass judgment on very important and difficult points of law: and there, of course, the proceedings are not a trial of the merits of the case at all, and the consequences of surrender may obviously be quite catastrophic from the point of view of the prisoner. My Lords, even if it is necessary to maintain generally this distinction beween the criminal case and the civil case, it seems that there ought to be some special provision made in order to protect the situation in regard to the sort of case which I have just been mentioning, the sort of case which occurs from time to time—in fact, fairly frequently—under the Extradition Acts and the Fugitive Offenders Act. That is the first point.
The next point is a slightly technical one, and it may well be that the noble and learned Viscount will be able to satisfy me on it immediately. As has, in effect, come out in the course of discussion this afternoon, there is nothing to prevent a person who wishes to apply for a writ of habeas corpus in a criminal matter from applying to a single Judge in any of the Divisions of the High Court. I think it appears quite clearly from the Hastings case, which has been referred to more than once this afternoon, that he can, if he likes, go to the Chancery Division. Normally speaking, he goes to the Queen's Bench Division; but he could go to the Chancery Division, or to the Probate, Divorce and Admiralty Division. Clause 14 (1), which was referred to, I think, by the noble and learned Lord, Lord Denning, provides that an order for release should be refused only by the Divisional Court of the Queen's Bench Division. What we are wondering is this: if the applicant chooses to make his application to a Chancery Judge, and the Chancery Judge dismisses his application, how does he get from the Chancery Judge into the 288 Queen's Bench Division? It may be that that is possible, but on the face of it it looks a little difficult. I should like to know whether it would not be wiser just to leave the matter open to a Division of the High Court rather than to confine it, as is at present done, to the Queen's Bench Division.
The third point on this particular matter is this. It would be convenient for a Court which hears an application for certiorari to quash an order for error in law appearing on the face of the record in a civil case to be able, in an appropriate case, to vary the order. This is a little on the periphery of the Bill, and the noble and learned Viscount may say that it cannot properly be brought into it. But at the present time, where the Court finds that the record ought to be quashed, all it can do is to quash it outright, although it may be quite obvious that by a small amendment the whole thing could be put right. But on the decision in the recent case of the Medical Appeal Tribunal, ex parte Gilmore [1957; 1 Queen's Bench Division], which is commonly referred to as the "paired organ" case, it is perfectly clear that the Court has at present not the power to do this. And it would, I think, be an obvious improvement in the law if the Court could be given the power to put the record right—in a proper case, of course. In that way, a great deal of multiplicity of proceedings would be avoided. That is a suggestion. The noble and learned Viscount may say that it cannot be brought in, but I should like to bring it to his attention. I hope that he will be able to help me, at any rate on some of these matters, because, as I say, this is such a good Bill that one would like to see it made even better than it is already.
§ 5.16 p.m.
§ LORD CITRINE
My Lords, in latter months, when I have had the opportunity of being present in your Lordships' House, there have been two measures brought before this House which have struck me as being singular in one respect. The first measure concerned proceedings before magistrates. I have not the precise Title of the Bill in my mind, because I did not anticipate taking any part in this debate. On that occasion I noticed that every person who spoke in the debate was either a practising lawyer 289 or a person concerned in some way or other with the administration of justice. I take the precaution usually of carrying with me Dod's Companion, because it always helps me to understand the background of the speaker and helps me to realise more keenly, as it were, his point of view.
We have had much the same experience in regard to the participation of Members of the House in this Bill to-day. So far as I can judge, every speaker other than myself is a lawyer. We have had four Judges who have spoken in this debate, and we are all very grateful to them, of course, for the frank and fair-minded way in which they expressed themselves to the Members of this House. But the House is not made up exclusively of lawyers or Judges: it is safe to say that there is a predominance of laymen. Some of the laymen, surely, somewhere, must have minds upon this question, and have points of view to express; and I must confess my disappointment that, on the two occasions I am referring to, there has not been a more general participation in the debates by laymen. I can well understand the impatience of the Members of your Lordships' House who may feel that on these questions it is better to leave matters to the experts. I have on a previous occasion given some views about experts in spheres with which I am acquainted, and I have never yet found it an advantage to rely exclusively on the opinions of experts.
Moreover, there are considerations in this Bill which are not questions of law at all, but which are in the main, questions of what I may call the public sense of justice. I am no lawyer, as your Lordships cart readily appreciate from what I have said and as you will the more readily appreciate as I go on; but I have read sufficient about the biographies of lawyers and eminent Judges, some of them Lord Chancellors, to know that they are as subject to the ordinary human emotions as I am. I also know that the conceptions of Judges and the interpretations of the law which have been given over the centuries reflect in the main the attitude of mind of the community. They are not static; they change as public opinion changes. Usually they change much more slowly than public opinion changes, but they change none the less.
290 If I were wanting to give instances in support of what I am saying, I would say this. Even 100 years ago it was practically impossible for the trade union movement to gain elementary justice at the hands of even the most eminent Judges in this country. We have an outstanding event in trade union history which has reference to the trial and deportation of the Tolpuddle Martyrs. I can say without doubt that the deepest sense of injustice at the way those men were treated rests to-day in the minds of the vast majority of trade unionists. If I wanted to give instances of bias, they would be simple to give. If we go as far back, for example, as to the trial of Sir Walter Raleigh, we find that the language used in cross-examination by that eminent lawyer, Chief Justice Coke, to whom I think the noble Lord, Lord Chorley, referred (he was not Chief Justice, I believe, at the time) was something which would horrify any modern judge.
I am glad, of course, like all humble members of the community, of the wider conceptions that are brought to bear upon legal questions to-day by Her Majesty's Judges. I remember the time when Judges were rather proud to say that they had no knowledge of even the commonest factors which were bandied about in public, merely because—presumably, anyhow—the evidence in regard to that particular incident was not given in their court, which made them laughable in the eyes of the ordinary public. Consequently, it is a great relief to me to know, as I hear it in the House, the breadth of view which is brought to bear on these questions by the noble and learned Lords who are Members of this House. The opening statements on the Bill by the noble and learned Viscount the Lord Chancellor were, as always, eminently fair. I have yet to detect him in anything approaching what I would call political bias, or an attempt to score off an opponent; and I have admired the way in which he has conducted the business of this House and the statements he has made in it. I have nothing but admiration for his statement to-day. It was clear; but, needless to say, it could not embrace all the various features of the legislation, and particularly he could not project himself into, say, the Committee stage or beyond that as to what might arise. I suppose that people like myself have to depend almost exclusively 291 on the Explanatory Memorandum that is attached to the Bill. I have tried to look at the particular clauses referred to in the Memorandum, but the Memorandum is my standby in what I have to say.
The noble Lord, Lord Silkin, who followed the Lord Chancellor, made a significant point which perhaps impressed me more than it did the noble and learned Lords who are connected with the legal profession. He used words to the effect that if there was an increase in the number of appeals, then the proper course would be for the machinery of the law to be adjusted in such a way that those appeals could be dealt with. I understood him to mean that the argument that the courts would be cluttered up by appeals if certain extensions of the right of appeal took place was not one that ought to be used in this House. If a factory was engaged in producing products, and the demand for its products increased, it would be a poor businessman who did not expand his capacity. Surely, in a realm like the law, where the liberty of the individual is affected, and with modern communities, being constantly and inevitably hedged round by the development of society itself, where that kind of issue is at stake it cannot be a valid argument that the law would be cluttered up if the right of appeal were widely extended. I thank the noble Lord, Lord Silkin, for making that, to me, most valuable point.
The Bill, so far as I can see, is a good Bill. It certainly extends the rights of the subject. But perhaps we ought to look at what kind of extension there is in, say, the case of contempt of court. Clauses 11 and 12 deal with this subject, and they give much more adequate protection, for example, to the newspapers, and the distributors of publications than exist at the present time. But it is an extension in an area where the people who are affected by the extension in present circumstances are among the most capable in the community to defend themselves. They are usually large newspapers. The cases I have heard about in the last two or three years have been of that kind, where eminent counsel could be engaged and large sums of money could be spent on defence against a charge of contempt of court. In the case of distributors it may not be quite the same and there may be instances 292 where small men are affected; but I should say that, even in that case, there is the probability that the people who have been given this protection will, on the whole, be able to defend themselves much better than the ordinary member of the community.
The noble Lord, Lord Chorley, concentrated on the same point that I had in mind in rising. I rose a little earlier in the debate—I did not know that the noble Lord was behind me and that he had risen at the same time—and consequently I may be guilty of repeating something of what he said. But, after all, it is the Members of this House who will have to say whether this is a good or a bad Bill, and whether it should be passed into law, and in that sense I have my excuse for even extending one of the points, at least, that he raised; that is, the question of contempt of court. "Contempt in the face of the court" is a new expression to me, but evidently it is a well-known one. I am quite sure that lawyers generally do not realise the state of mind in which the ordinary person enters the witness box. I do not know about the other kind of box, because I have never been in it; but I do know about the witness box, and the browbeating I saw time after time in court when I used to attend regularly at one part of my career was most surprising in the administration of the British law.
I say nothing about the changes of technique. Counsel will make an assertion which is not a question at all. Instead of asking a question, he makes an assertion, and the witness is supposed to regard it as a question and answer it. I would say that the average witness, when he enters the witness box, is at a great disadvantage. It might easily be that some form of contempt of court is committed quite unwittingly. When a man enters a witness box I see no reason why he should be frightened of a judge, jury or anybody else. I see no reason why he should regard the judge as a different kind of person. But I am quite sure that there are many who are put into that position. There are many people who have to enter a dock to be tried on charges, who cannot act normally and who are intimidated by their surroundings. I think my judgment on that point would be endorsed by the overwhelming mass of people 293 who have had experience of the courts. I am not talking about the criminal classes.
I say, therefore, that when we come to the question of contempt in the face of the court we ought to see that a measure of protection is afforded in that case at least as adequate as that afforded in the other cases mentioned to-day under Clauses 11 and 12. Can it be right that a judge, without any kind of examination, can at once pass sentence in his own cause because the dignity of the court has been offended in some way? Can it be right in principle that that judge, whose dignity is offended in the degree that he conceives it to be offended, can at once decide what penalty is justified on the person committing the alleged contempt? I say that that is a flaw in the law, and that it is something which has existed too long. Quite clearly, it is something that has arisen from the ancient past, and something which is out of harmony, in my opinion, with modern public opinion.
I realise that there are some forms of contempt which cannot be dealt with in what I might call the same way as other forms. I do not know whether, for example, the question of offending against the dignity of the court embraces the refusal to answer questions. I can see that it would be utterly wrong for a person to be able with impunity to refuse to answer questions in court, and the question of his or her contempt would have to be tried subsequently. But I cannot see how it is a case for summary action. That is not in the same category as where the dignity of the court—particularly if it comprises one single judge; and that is the case I am applying myself to now—is alleged to be offended. Until I began to learn shorthand I did not discover that "court" and "judge" were used simultaneously to mean the same thing. I say it is utterly wrong for that judge to have supreme power to pass whatever sentence he thinks fit.
I will not mention names, but I was rather sorry to hear one of the noble and learned Judges who spoke in this debate appearing to resist this. I have the highest regard for that Member of your Lordships' House, who has always struck me, in his utterances in Court, in public and in this House, as being fair-minded. I thought he was resisting it, but I may be wrong about that. I got the impres 294 sion that he felt that, in this realm of contempt in the face of the court, it was something that ought to be left entirely to the judge himself. It is not always easy to remember precisely what was said, but he used words which conveyed the meaning to my mind that judges in such cases would not be likely to be too severe. That is as good as saying that the climate of public opinion restrains them from being too severe because, clearly, if something of that kind were done there would be a public outcry, and even judges are not sacrosanct and free from public comment.
I say that this gap in the law with regard to contempt in the face of the court ought to be stopped up, and I hope that in the Committee stage this point will be examined. I realise that there is a tricky point involved here—how on one side to maintain the dignity of the court, and on the other how to secure justice to the individual and get rid of this obnoxious principle of the judge being the judge in his own cause. I say that quite plainly. I know that different degrees of contempt must require different treatment, and my only plea is that in the Committee stage, with the broadmindedness which the noble and learned Viscount the Lord Chancellor has always displayed in this House, he will bring his power and his experience to bear upon that point. I say it is a good Bill. It is a Bill we all welcome, and it can be made a better Bill if some of the points raised in the debate are incorporated.
§ 5.36 p.m.
§ LORD CONESFORD
My Lords, I shall not detain the House for more than a few moments. I rise only on account of a remark made by the noble Lord, Lord Citrine. Of course, I agree with him and with other noble Lords who have spoken that there will be some important questions that we must consider on the Committee stage. I would, however, mildly protest against the description of a judge who acts when there is a contempt in the face of the court as being a judge in his own cause. When the dignity of the court is insisted upon, that does not mean that the judge is a judge in his own cause—he is maintaining something that is essential for the administration of justice. I should like 295 to protest against the delusion that the judge who then acts is being a judge in his own cause.
What should be done in those circumstances, about which there is an apparent difference between what has been suggested by my noble and learned friend the Lord Chief Justice, and what has been said by other speakers, can safely be left to be discussed during the Committee stage of this Bill. Likewise, I am sure that there will be important discussions on what has been called the sieve provided in the first clause of the Bill. The noble Lord who has just sat down should make no apology because he intervened as a layman. I know that my noble and learned friend on the Woolsack will agree with that, because he took some trouble to explain the Bill in language which would be clear to laymen as well as to lawyers.
In addition to the principle of the desirability of the right of appeal, there is the other principle to which my noble and learned friend Lord Simonds drew attention—the desirability in criminal matters of getting a final decision as soon as it can justly be obtained. How to reconcile those two things can be considered in greater detail when we come to the Committee stage of the Bill, and particularly to a discussion of the first clause. I rise only to congratulate Her Majesty's Government, and above all my noble and learned friend on the Woolsack, on what I believe to be a major measure of legal reform.
§ 5.40 p.m.
§ THE LORD CHANCELLOR
My Lords, it is my first happy duty to thank your Lordships for the reception which you have given to this Bill, and to say how much pleasure I have received from hearing the Lord Chief Justice of England and his predecessor. I was also pleased, if he will allow an old friend to say so, by the fact that my noble and learned friend Lord Simonds changed his intention and joined in this debate. I think the whole House appreciated that we had three remarkable additions. That is not, of course, in any way to denigrate the contributions that have been made by the other legal figures—Lord Silkin, Lord Denning, Lord Chorley and Lord Conesford. But all that only underlines our pleasure that 296 Lord Citrine should have taken the trouble not only to interest himself in the Bill but to take part in our debate. I assure him, as one who has spent a quarter of a century in debates of the sort that are usually rather grudgingly called "lawyers' holidays", that we lawyers really like it when a layman comes in; and I hope he will do it again.
The noble Lord, Lord Silkin, dealt with one or two points on which I would like just to say a word. The first was the point which was repeated and discussed by the noble Lord, Lord Citrine, about whether the courts of appeal should be made for the appellant rather than the appellant for the courts of appeal. I think it has emerged from the other speeches, especially that of my noble and learned friend Lord Goddard, that there is no difficulty at all in getting to the Court of Criminal Appeal and having the case examined. The problem to which we have to direct our minds is, as propounded by my noble and learned friend Lord Simonds, when you have had one appeal, and that has been a full appeal, on fact and law, and any other features of the case, what are the conditions on which you are going to have a second examination? I think that is really the point to which we must direct our minds. I think we shall all agree that two full examinations of every aspect of the case would not be to the public advantage, and what we have tried to do is to evolve conditions which we think will meet that difficulty. The noble Lord, Lord Silkin, in the end accepted the position that it should be left in the hands of the Courts, and on behalf of that important trade union of ex-Attorneys General I thank him for the kind words he said about us as a class.
On the point that he raised, that this is asking the Court, which has ex hypothesi decided the other way, for the answer to the questions in the condition, he will note that what we suggest is that the Court that has tried the case should certify that a point of law of general public importance is involved. The Court is not dealing at that stage of its activity with whether the decision was right or wrong, but with whether a point of general public importance is raised. I would ask the noble Lord, Lord Silkin, to consider that. The Divisional Court 297 have literally hundreds of cases coming up from the magistrates, and seeing the sort of Acts on which difficulties arise, I should have thought they were a good forum for considering that point.
On the other point, whether there is to be an appeal, I did say—and perhaps he will do me the honour of looking at my speech again to see how I put it—that there are only two possibilities: first, that although it is an important point it is really an unarguable point; and second, that there has been a decision which has stood for such a long time that to disturb it would not be a good thing. Those are really the points to be considered in the second limb of our condition.
On the other general point which the noble Lord made, I am sure he appreciates, even if I failed to make it clear, that the importance of this Bill is that in addition to altering the conditions of appeal from the Court of Criminal Appeal to the House of Lords and the Courts-Martial Appeal Court, it does for the first time create an appeal from the Divisional Court. I think he will agree that this is a great step forward and will be very helpful to us who have to legislate in a number of spheres that touch the ordinary individual closely.
The noble Lord said that he was rather worried by the different appeals in contempt of court. If he will do me the honour of looking for a moment at Clause 13 (2), I should like just to make quite clear what was in my mind. The noble Lord will appreciate that there is, first of all, the question of the appeal from another court; and paragraph (a) of Clause 13 (2) says:from an order or decision of any inferior court, other than a county court. …That is intended really to cover quarter sessions. That is the most important one, because quarter sessions have a right to commit for contempt in the face of quarter sessions, and it has for countless years, centuries, been the work and function of the Divisional Court to look after inferior courts of that kind and supervise their work. Therefore, I thought the proper appeal there was to the Divisional Court. In the next batch, paragraph (b), we have:from an order or decision of a county court, the Chancery Court of a County Palatine, a single judge of the High Court or an official referee, to the Court of Appeal.298 My Lords, I have no feelings about the criticism at all; I do not take it amiss. But I do not think my critics have appreciated the point which I had to deal with there, that so far as criminal matters are concerned, the Court of Criminal Appeal has always been the last court in the realm under the House of Lords. To have an appeal from the Court of Criminal Appeal, which is the final court of appeal in criminal matters, to the Court of Appeal itself (which, of course, is the court of appeal under the House of Lords in civil matters) would, I think, have been wrong, and might well have been thought derogatory to the position of the Court of Criminal Appeal. It followed from that—as I think the noble Lord will see—that the appeals for any contempt committed in the three ultimate courts of appeal except the House of Lords had to be to the House of Lords. That is the way that it was worked out; and I would ask—I am sure the noble Lord will comply—that he would look at it from that point of view.
He asked me about the various points that were raised in the leader in The Times to-day, and he very fairly drew attention to the fact that, after saying that the Bill does not deal with these points, they say that they are not points which they would expect to be dealt with by a Bill. The noble Lord was quite fair on that point. But are they really as difficult as all that? Take the first one—the question of the limits within which the judicial conduct of a judge may be criticised. I hope your Lordships will forgive me for reading, on that, one of the most famous passages in the law, because it is the product of a very dear friend of mine and a brother Bencher—one of the greatest judges I ever had the honour to appear before, Lord Atkin. In dealing with this I quote from Ambard v. The Attorney General of Trinidad and Tobago. reported in 36 Appeal Cases. The words are so remarkable that I venture to quote them, especially to Lord Citrine, because I think they are words that would appeal to a layman just as much as to any lawyer. He said:But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in 299 good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.For what it is worth, I agree with every word that my late noble and learned friend said in that passage.
The next point was on the question of the propriety of commenting on the sentence of the court while there remains any possibility of appeal. I am not quite sure what the new answer to that passage is, but I thought it was perfectly clear from the King v. Davis, and that Mr. Justice Humphreys was right when he saidThere is ample authority in saying that during the time between the conviction of an accused person on indictment and his appeal to the court of criminal appeal the case has not ended at all, but is still sub judice, and the publication of improper material may amount to contempt of court.I should have thought that that was obviously so. It is only ten days and, in the corresponding position, when we were considering the case to which the noble Lord referred, without mentioning any names, he will remember that his noble colleague who wanted to ask certain questions, at my request even in this House postponed the matter until the time for appeal had gone.
The next point is one which has frankly puzzled me, and that is the expression:The extent, if any, to which the fact that the broader public interest may have been served by publication of matter calculated to interfere with the course of justice in particular proceedings constitutes a defence against alleged contempt.If that means anything—if it means what I understand it to mean—it means that we concede that there has been a publication of material calculated to interfere with the course of justice. I must say that I find great difficulty in that. If you admit that matter has been published which is calculated to interfere with the course of justice, what is the defence which the writer of the article had in mind? I do not want to 300 say any more, because somebody may be able to read something more into it than I have, and develop it.
The fourth point the noble Lord will remember I dealt with in my opening statement—as to these words about having the power to do so, and I explained where that power came from. I only wanted to say that because I should not like the noble Lord, Lord Silkin, to think that these points had not been considered by us. As I say, after 25 years in Parliament I resent no criticism at all; my hide is as thick as would shame a rhinoceros. On the other hand, I always like Members of your Lordships' House to know that their points have been considered.
The noble Lord, Lord Chorley, raised certain points, and I should like to do my best to help him. I think he first asked me a question on Clause 3 of Lord Shawcross's Bill about the application for attachment and committal being heard in public. I think the answer is that such applications can be dealt with by Rules of Court. There does not seem to be any difficulty about dealing with these cases in public, even when they relate to a class of case which, under Clause 12 of the Bill, is heard in private. I do not think that Lord Chorley would want me to say that they must be heard in public; at any rate, I should like to reserve the position and to discuss it with him, because I think you might do a grave injustice by producing in public matters which have attracted attachment and committal. If somebody has said something utterly untrue and scandalous, then at any rate I want to reserve my opinion whether that should be given publicity, although I see the desirability of the fact of attachment and committal. Perhaps the noble Lord would consider that point.
He also wondered about the habeas corpus applications being routed to the Divisional Court of the Queen's Bench Division. Of course, in the ordinary way, as he knows, the application would be made to the Queen's Bench Judge in Chambers. Then, because he cannot refuse it under the Bill, he would have to refer it. I do not think there will be any difficulty if it is during the vacation and a Chancery Judge is sitting as vacation Judge. We do not think there would be any difficulty in going to the Queen's Bench Divisional Court. I did 301 not check this point before I came in this afternoon. I think that that is what the Rules generally provide, but we certainly believe that that would be done. The point of my noble and learned friend Lord Parker of Waddington in regard to the Hastings case is that you have one High Court, and in those circumstances I do not think there would be any difficulty.
Then the noble Lord had a point with regard to extradition. As he knows, the procedure at the moment is that the accused person is required to be brought before a Metropolitan police magistrate who must release him unless a prima facie case of guilt is made out. If the magistrate commits him to prison, he must inform him that he will not be surrendered for fourteen days and that he has the right to apply for a writ of habeas corpus. The determination of that application, being a criminal matter, is at present final, but under Clauses 1 and 15 of the Bill an appeal on law will henceforth lie from a Divisional Court of the Queen's Bench Division to the House of Lords. The Divisional Court is not a court of appeal but investigates whether, on the evidence before him, the magistrate had authority and jurisdiction to commit—I think I have the words right. Thus any question on which a future appeal could be sought will always be a question of law, and, if it is one of general importance, capable of being brought to the House of Lords.
The other point about certiorari is really, if I may put it shortly, that the idea of Clause 16 of the Bill should be applied to civil cases. I think the noble Lord understood that that point wants a lot of consideration. He called it a "peripheral" point. I will certainly consider it, but the noble Lord will have noticed that in Clause 16 one has dealt with one point of certiorari—namely, the substitution of a new sentence. I hope I have dealt with the noble Lord's points. It is difficult to remember them all, but if he has anything in mind I hope he will interrupt me.
§ LORD CHORLEY
My Lords, the noble and learned Viscount has certainly dealt with them, though whether I am altogether satisfied with what he has said is perhaps another matter. No doubt he will look at what I have said, and I am sure that if something can be done, he will do it.
§ THE LORD CHANCELLOR
My Lords, the noble Lord said he would be grateful for my views, and what I have said does not preclude my going into it, and perhaps being wiser, in the sense of getting nearer to the noble Lord's point of view, when I have considered the matter.
I believe that I have dealt with the main points of criticism raised, except for one point on which there has been a major division between speakers; that is, whether we are right in giving an appeal for contempt in the face of the court. As the noble Lord, Lord Chorley, disclosed, that is a matter on which my noble and learned friend Lord Shawcross feels extremely strongly. In parenthesis, I would say that I am sure I shall be speaking for your Lordships in every part of the House when I say how much we wish that the noble and learned Lord, Lord Shawcross, will have had a good and successful passage in his operation to-day and will soon be restored to his public duties. My Lords, there is that difference, and, frankly, I thought that the noble and learned and distinguished backers of the noble and learned Lord's Bill took the same view as he himself took in desiring this appeal in the case of contempt in the face of the court. I understood that the support for the Bill which disclosed itself was support for that point.
To-day I have listened very carefully to the speeches of the noble and learned Lord, the Lord Chief Justice, and my noble and learned friends Lord Goddard and Lord Simonds. They have developed a strong case against the Bill of the noble and learned Lord, Lord Shawcross, on this point. I will of course consider it, but I believe that we have to give grave consideration to the quotation from the noble and learned Lord, Lord Shawcross, which the noble Lord, Lord Chorley, made to-day, which I have heard from the noble and learned Lord, and which, I suspect, has been heard by everyone who has discussed the matter with him: that we are the only country in the civilised world where such a state of things obtains (I think I have got it right), and that is a serious position which must be taken into account.
With regard to the speech of the noble Lord, Lord Citrine, I was delighted that a layman should take sufficient interest in this subject to come into our debate. 303 May I recall to him something which I believe will give him and the House pleasure? I remember the late Ernest Bevin saying to me, when we were colleagues in the war-time Government, that in his trade union experience he had always felt greatly indebted to the House of Lords for their approach to and consideration of workmen's compensation matters and matters concerned with the trade union movement. He probably said the same thing to the noble Lord, Lord Citrine. One of the objects of this Bill is to introduce new methods of approaching the House of Lords, and I should like the noble Lord, Lord Citrine, when considering the points I have mentioned, also to bear that in mind.
On the other point, I am not by any means belittling what he says. I had the same point put to me when I was in charge of the debate on the proposals of the noble Lord, Lord Beveridge, during the war, for altering workmen's compensation procedure—the point that lawyers are apt to underestimate the effect on ordinary people, and especially on people who have not a very varied experience of life, of merely coming into court. I should like, again as pure reminiscence—for I think it is long enough ago for me to quote it without offence to anyone—to say that I have cross-examined a good many people in the course of my life, probably as great a variety as any living person; but I have never found anyone more difficult to cross-examine than that pillar of the trade union movement, the late Mr. Havelock-Wilson. So when the noble Lord, Lord Citrine, talks of his own diffidence in coming into court I cannot help wondering about the diffidence felt by the court when they heard the noble Lord, Lord Citrine, give his evidence. I know he will take that comment as spoken in a friendly way.
§ LORD CITRINE
My Lords, if everybody was cross-examined by the noble and learned Viscount, or by lawyers, in the same way as he has explained these matters in your Lordships' House, nobody would be nervous.
§ THE LORD CHANCELLOR
My Lords, on reflection I do not know whether that is a compliment to my cross-examination. I only wanted to say that because we are delighted to hear the noble Lord, Lord Citrine, on this 304 subject—and, I am sure, the view of the noble Lord, Lord Conesford—even though he made his point with such vigour. I repeat, I am sorry to have detained your Lordships. I am afraid that I have kept you rather a long time, but I wanted to try to answer the points raised, and adequately to express my gratitude for the reception the Bill has received. I hope that your Lordships will now give it a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.