HL Deb 10 May 1960 vol 223 cc561-91

4.41 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AILWYN in the Chair.]

Clause 1:

Right of Appeal

1.—(1) Subject to the provisions of this section, an appeal Shall lie to the House of Lords, at the instance of the defendant or the prosecutor,—

  1. (a) from any decision of a Divisional Court of the Queen's Bench Division in a criminal cause or matter;
  2. (b) from any decision of the Court of Criminal Appeal on an appeal to that court.

(2) No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House.

LORD CHORLEY moved, in subsection (1), to leave out "of general public importance". The noble Lord said: This is the first of a series of Amendments which stand in my name on the Marshalled List. With your Lordships' permission, I will make one or two preliminary remarks before proceeding to the substance of the first Amendment. I should like to express my appreciation of the great help which I have had from the organisation of lawyers called "Justice", who accepted the responsibility of the actual drafting of these Amendments.

I am putting forward these Amendments as a Member of your Lordships' House, but I think I am entitled to say that an organisation, of which (as I think most of your Lordships are aware) the noble Lord, Lord Shawcross, is President, of whose executive committee a well-known Q.C., Sir David Scott Cairns, is chairman, and which includes many prominent members; of the Bar, is heartily in support of these Amendments. I had hoped to have the endorsement of the noble Lord, Lord Shawcross, but unfortunately I have not been able to get in touch with him during the last few days, since the Amendments were ready. The noble Lord, Lord Meston, agreed to endorse them, but owing to a misunderstanding his name does not appear on the Marshalled List. I should say that the Bar Council are behind a number of these Amendments and I shall indicate which these are as we go along, because I wish your Lordships to appreciate that there is a great weight of opinion in the practising part of the legal profession behind them.

The first Amendment relates to the qualification on appeals in criminal cases. This was discussed at some length on Second Reading, and I made the point which, in my contention, substantiates the case for the Amendment. As your Lordships are aware, the present position is that an appeal from the Court of Criminal Appeal can come before your Lordships' House, sitting in a Judicial capacity, only on the fiat of the Attorney General, who can grant this only in cases of particular importance. This clause is undoubtedly a very considerable improvement on the position which has existed ever since the Court of Criminal Appeal was established in 1908, and it has been accepted by everybody as an improvement. But those who hold the view for which I am acting as spokesman for the moment feel that a mistake is still being made in dealing with the matter in the way in which it is tied up in subsection (2)—namely, that your Lordships' House cannot give leave to appeal in a case from the Court of Criminal Appeal, or indeed from the Divisional Court of the Queen's Bench Division, unless the court below which tried the case certifies that a point of law of general public importance is involved. Your Lordships' House may feel that there is a point of general public importance involved; but unless the judge or court which has tried the case below certifies that there is such a point involved, your Lordships cannot give leave to appeal.

Of course, as I pointed out on Second Reading, in civil cases the court itself can give leave to appeal; and where the court refuses leave the parties can apply to your Lordships' House, which can take a general view of the case and, coming to it with a new vision perhaps, grant leave to appeal. Every practising lawyer is well aware that that happens from time to time. I do not say that it happens in anything like the majority of cases, but within the experience of any working lawyer, in quite a proportion of these cases your Lordships' House allows the appeal. That shows that if, in these civil cases, a right of appeal had been dependent on leave being granted by the court below—the court which had made the original decision—the appeal eventually permitted by your Lordships' House could not have taken place, and obviously there would have been a miscarriage of justice.

Surely if this procedure is adopted in civil litigation, where what is at stake is rights of property, rights of compensation, damages and matters of that kind, it is even more important that it should be possible in a case where the liberty of a subject is at stake, where it is a question of a man going to prison, or possibly being executed. If, in a civil case, the would-be appellant, having been refused leave in the court below, can come to your Lordships' House and gets leave, surely in a criminal case there is an even greater reason for this procedure. That is the view which has received great support in the profession, and there has been little opposition to it. So far as correspondence in The Times and elsewhere in the legal periodicals goes, I think the weight of the argument has been entirely on that line. I should say that the Bar Council take up what one might perhaps call an intermediate position with regard to this matter; they feel that it should be "a point of law of importance." That is going not quite so far as the Bill goes, but goes a little further than the Amendment goes. I felt that, having received that communication, it was only fair to bring it to the attention of your Lordships.

I should like to add a point to what I said in the Second Reading discussion, in that it is very familiar in the Privy Council, which of recent years has become more and more a Court of Appeal in criminal cases from many parts of the Commonwealth territories. Applications are continually being made to the Privy Council asking for leave to appeal. The Privy Council give careful consideration to the requests; there is argument, usually competent argument, before the Privy Council, and a decision is taken as to whether or not it is a suitable case for appeal. It seems to me that there ought not to be a difference in favour of the would-be appellant in a colonial territory, which may enable him to obtain leave to appeal from the Privy Council, whereas his opposite number in this country might not be able to obtain leave to appeal to your Lordships' House because the judgment below or the court below had not certified the case.

The noble and learned Viscount the Lord Chancellor, in his speech on Second Reading, did not give a great deal of time to this particular point. So far as I could follow the argument which he put forward, it was that we should all agree that there should not be two full examinations of every aspect of the case. I am not quite sure how far that argument was in fact directed to this point, but in so far as it was, we are not really asking for two full examinations of the case. We all agree, I think, that these cases should come to your Lordships' House only where points of law are involved. In civil cases, every aspect of the case may go to the Court of Appeal, and every aspect of it may come to your Lordships' House, because questions of fact, as well as questions of law, may be important. But in this case we are limiting the right of appeal to a question of law, and the only point is whether that question of law should be of general public importance and one which is so certified by the court below. I do not think your Lordships' House, on an application being made to it, would be likely to grant leave to appeal unless it was generally felt that the point was one that was worthy of consideration by your Lordships' House. But surely the decision on that should be left to your Lordships' House to take, and should not be, so to speak, already pre-judged by the decision of the court below. It seems to me that no real argument has so far been made against the view which is taken by those who support this Amendment—namely, that there should be an appeal from the Court of Criminal Appeal on a question of law, where either that court—because in most cases we shall be dealing with the Court of Criminal Appeal—or your Lordships' House thinks fit to grant leave to appeal. That is the substance of the Amendment. I beg to move.

Amendment moved— Page 1, line 16, leave out ("of general public importance").—(Lord Chorley.)

LORD DENNING

May I say a word or two on this Amendment? It seems to me to be of vital importance if this House is not to be overwhelmed by applications for appeals that there should be a proper sieve to see that only appropriate cases reach this House. If you consider the Supreme Court of the United States, where twenty years ago they introduced the system of certiorari in criminal cases, with due process clauses, you find that that court has been overwhelmed by applications for certiorari, so that the judges of that court have to spend long hours reading thousands of applications without much merit, and their energies and learning are dissipated in that way. In order that that should not happen here there must be an adequate sieve. Previously the sieve has been too closely meshed. The fiat of the Attorney-General did not let through enough cases of importance. The proposal now is that there should be a wider mesh; but my noble friend's Amendment, a point of law, would still let innumerable applications through. In practically every case from a Divisional Court a point of law could be said to arise, and in many, if not all, cases in the Court of Criminal Appeal it could be said that a point of law arose, not of any general importance, but simply on whether, on the facts of the particular case, there was evidence to go to the magistrates on which they could decide, or on which a jury could decide; or there could be a complaint about a direction in the summing up.

Rather than have such innumerable applications of that kind, is it not right that the court which heard the case should be able to certify whether it is of general public importance or not? We hope that the court would take a liberal view, realising that it might be wrong. I have known cases where the court itself has been wrong. I have myself been presiding in the Court of Appeal and have refused leave to appeal, and it has turned out afterwards that leave should have been granted, and this House has overruled that decision. I suggest that the clause as it stands provides a proper sieve.

VISCOUNT SIMONDS

If I add one word on this, I do so because it so happens that I have been a Lord of Appeal in Ordinary for somewhat longer than any other Member of your Lordships' House. I can only say, out of my experience, that I believe the suggestion made in this Amendment would result in absolutely swamping this House and making the administration of justice by this House almost impossible.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

The argument against the Amendment has been so forcibly deployed by my noble and learned friends Lord Simonds and Lord Denning that I do not think I need elaborate it, but I want to deal with it out of respect for the noble Lord, Lord Charley, and those for whom he appears. The first point that the noble Lord has made is that the words "of general importance" are not necessary. I confess that I share his difficulty in appreciating the great difference between "of general importance"and "of importance", and I think that, so far as this Amendment is concerned, I may claim the Bar Council to be broadly on my side of the line. But I wonder whether the noble Lord has really considered, in the sense that my noble and learned friend Lord Denning put it forward, what it would mean to have the effect of his Amendment and make the only limitation that there should be a point of law.

The second point is, why should it be left to the Divisional Court or the Court of Criminal Appeal? I have not the exact numbers in my mind, but even taking into account the cases that go to the Privy Council, the number of criminal cases dealt with by the House of Lords and the Privy Council in each year are relatively few. I think that my noble and learned friend the Lord Chief Justice said that the number coming up to the Court of Criminal Appeal was over 2,000. Similarly, if one looks at it the other way, from the point of view of the magistrates' courts and bringing up cases that have gone thence to the Divisional Court, one really wants to try to deal only with the points of real difficulty—for example, new legislation dealing with particular regulation of human activity. I should have thought that the Divisional Court or the Court of Criminal Appeal are in the best position to say whether it is of general public interest, in view of the great experience which they must have in dealing with such matters.

Then one comes to the main point which my noble and learned friend Lord Simonds has put so forcibly. If in every case in which a point of law was involved the party who had been unsuccessful below would be entitled to come to the Appeal Committee of your Lordships' House for leave to appeal (even though the Committee would be bound to dismiss the application if it thought that the point was not one which ought to be considered by the House of Lords) is that really fair to the Appeal Committee for the good which it would do? The noble Lord, Lord Chorley, has taken the example of a civil case. That is, of course, an a priori argument, but with the greatest respect to him it is an a priori argument which entirely ignores the fundamental difference between the two classes of litigation. The vital difference between the civil and criminal cases is that in the latter the accused, who is the appellant, has everything to gain and nothing to lose by seeking leave to appeal. It is essential that there should, as my noble and learned friend, Lord Denning, said, be a sieve through which cases which are fit for appeal must pass. With regard to that, we have actually narrowed the difficulty. The words, "general public importance", are more liberal than the test of "exceptional public importance", which the Criminal Appeal Act, 1907, provides.

I ask the noble Lord to consider this. Speed in reaching a final decision is of cardinal importance in criminal proceedings. It must not, and no one would suggest that it should, be bought at the expense of careful examination. I intended to convey, in the phrase which the noble Lord quoted, that we all agree there must be one full examination which can cover every angle of fact and of law. After that, we want to limit it to matters of law. The noble Lord, Lord Chorley, took the example of criminal appeals to the Privy Council. I would venture to remind him, without giving him a summary of Dr. Norman Bentwich's excellent book on that matter, that Dillett's case provides in the case of criminal appeals to the Privy Council a very serious and heavy hurdle which anyone who wants to get leave to appeal must surmount. The noble Lord will, I am sure, have it clearly in mind, and I need not summarise it to-day. But that is the position and, as one who in his time has applied to the Privy Council for leave in criminal cases, I do not think I have overestimated the position which Dillett's case takes, and is intended to take, in appeals to that Court.

For all these reasons, I hope the noble Lord will not press his Amendment. If there are any further points and if, on mature consideration, he sees a great difference between "public importance" and "general public importance", I shall be pleased to look at that again. But I should have thought that "general public importance" was about right and has relaxed the matter sufficiently to cover all the necessary aspects of the case.

5.7 p.m.

LORD CHORLEY

I am afraid I am not convinced by the arguments of the noble and learned Lords. I think to some extent they have some interest in the problem. They are Members of the House and they are naturally a little worried about the amount of pressure which might be involved. I think they are overestimating that. I have a fair amount of experience of the criminal law. Out of the number of convictions at assizes and quarter sessions the number of cases which go to the Court of Criminal Appeal is not very large. A man who has been dealt with is in most cases satisfied with what has happened. Even if he is not altogether satisfied he does not go on to the Court of Criminal Appeal, and I am pretty sure that these forebodings would not be borne out in the result if this Amendment were accepted. It has so often been found in practice that forebodings of this kind are not borne out when the actual step is taken. Even if they were, I feel that the personnel of your Lordships' House ought to be stepped up to deal with it, if that is in fact what is found to happen. It would not be difficult. It would not cost a large sum of money when one looks at it against the national Budget as a whole.

And, after all, in these cases the liberty of the subject is at stake. As I said in my Second Reading speech, much as one admires the way in which the Court of Criminal Appeal does its work, it has not proved itself in all respects a first-class court of appeal. I think most working lawyers would say that, compared with the Court of Appeal itself, it is not so good. There are all sorts of reasons which one need not go into. It is partly because the pressure of work in the Court of Criminal Appeal is so great, as was indicated, I think, by the noble and learned Lord, Lord Goddard, in his speech. Therefore, I think that makes it particularly important that there should be exceptional opportunities in these cases (many of which do involve difficult points of law, even if they are not points of law of general public importance) in which, very often, there is a good deal of criticism of the decisions which have been taken by the Court of Criminal Appeal. It seems to me that it ought not to rest finally with that Court to decide whether or not the matter comes on to your Lordships' House. However, it is obvious that I cannot persist with this Amendment in the face of the noble and learned Viscount's opposition, and, in the circumstances, I have no alternative but to ask your Lordships' leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.10 p.m.

LORD SILKIN moved, in subsection (2), to omit all words after "decision". The noble Lord said: Having got the first Amendment out of the way, the position remains that if there is to be an appeal to the House of Lords the court below has to certify that there is a point of law of general public importance. It has been suggested that that is a somewhat more favourable criterion to the person who desires to appeal than the one which exists at the moment with the Attorney General's fiat. I would agree, except that there is a second criterion that has to be satisfied in this clause: to get an appeal you have not only to establish that a point of law of general public importance is involved, but also—whatever it may mean—"that the point is one which ought to be considered by that House".

I do not know whether that is a new conception altogether, or whether or not it applies to-day to any kind of appeal, but it is difficult to understand what it means. If it means anything at all, it is a second criterion which must be of a limiting character so that even though a person may have a point of law of general public importance that itself will not be sufficient; it has also to be a point "which ought to be considered by that House". Unless the noble and learned Viscount can satisfy me that that is an expression which is already in force and that even with the Attorney General's fiat it still has to be a point "which ought to be considered by that House", I am bound to say that, far from this being a sieve which allows more cases to go through, it could be operated to allow fewer cases to go through. I would take the point of the noble and learned Lord, Lord Denning, that the House of Lords is very busy; there is a large number of appeals, and they may well quite honestly take the view that this is not a point which ought to be considered on appeal because of the enormous pressure of work or other reasons which are not clear in this Bill. If that were the case and the person making the appeal had to go through that particular criterions, he would suffer as against the present position, when, as I believe, no such condition has to be satisfied.

I wonder whether it is really necessary. If, as I suspect, it does not really amount to very much, why is it put in? Why is this additional hurdle incorporated for the person who wishes to appeal? After all, the whole purpose of this clause is to confer a right of appeal, and what it does is to make it easier on the one hand and then put difficulties on the other. I suggest that the wise thing is to leave it out altogether, and leave as the criterion the one which we have accepted; that is, that it has to be a point of law of general public: importance. For those reasons, I beg to move my Amendment.

Amendment moved— Page 1, line 17, leave our from ("decision") to end of line 19.—(Lord Silkin.)

LORD PARKER OF WADDINGTON

May I say two things on this Amendment? The first is highly technical. I do not think the Amendment laid before the House carries out Lord Silkin's intention. As drafted, it means that there will still be need to get leave from somebody. I imagine that what the noble Lord had in mind was that if there was a certificate that there was a point of general public importance then automatically the applicant should have leave to appeal. Assuming that that is the intention, I do not think the Amendment at present carries it out. What it really comes to is this: that the Amendment is making the court below, whether the Court of Criminal Appeal or the Divisional Court, the sole arbiter as to whether a man should be entitled to go to your Lordships' House. I should have thought that if the matter was to go to your Lordships' House it would be only right that your Lordships should have the final say.

THE LORD CHANCELLOR

This point was argued on Second Reading. For the purposes of the answer to this Amendment I hope your Lordships will allow me to quote the two ways in which it was put. First, because it happens to come first in time, there was the one by myself. I ventured to say [OFFICIAL REPORT, Vol. 222 (No. 59), col. 250): 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. My noble and learned friend the Lord Chief Justice dealt with it at col. 267, and again I venture to quote the way in which he put it: 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. I endeavoured to explain on the last Amendment the way we approached the problem. We first of all wanted to try to get a sound criterion for the "general public importance" point. We took that phrase, and we thought that the tribunal that could decide it was the tribunal which was most experienced in cases of that class. In order to deal with the point that was raised on Second Reading—slightly fantastic, but it was raised—that the court that had given the actual decision might be partipris on the point, we wanted to be quite clear that the point, as to whether it was useful to have a second appeal, ought to be open to decision by two courts, first, the court that had given its decision on the case, and secondly, the Appeal Committee of your Lordships' House. Really, when you have come to the point, as the noble Lord, Lord Silkin, said, that you have got out of the way the question of general public importance, I think it is more helpful to the potential appellant that he should be able to have two bites at the second cherry.

I venture to say again that we must bear in mind that it is plainly desirable that there should be finality in criminal proceedings, and that some fairly severe limitations ought to be placed on the cases which are fit for the House of Lords. It would not help if the Amendment were made law, for this would enable points of law the importance of which are really academic or unreal to be taken to the House of Lords by appellants who, as I said on the last Amendment, have little to lose by so doing. In initiating reforms it is always difficult to place limitations upon them, because there are always those who, with not only the best will but with the highest possible motives, want to see logical perfection. Broadly, in life logical perfection is beyond the bounds of possibility. What we want to do is to ensure that when there is a really important point of law on which a further decision would be helpful, it will not be shut out. That is why we approach it from the two angles. That is why I should like both angles to remain.

LORD SILKIN

In so far as the language of my Amendment is defective—I have not yet appreciated why it is, but no doubt the noble and learned Viscount will be able to explain that to me—I would not wish to press it. I think that on only one or two occasions have I ever been successful in bringing before this House a technically perfect Amendment. Therefore it is not unusual that my Amendments are imperfect. But on the sense of the thing, the noble and learned Viscount said that a point which is of general public importance might be unreal and academic. I should like to think about that, but at first flush I find it most difficult to reconcile those two things. An unreal and academic point could hardly be one which is of general public importance. But, having said that, I should have thought that that criterion is good enough; or, if the noble and learned Viscount would like to look at that criterion again, in order that the words "of general public importance" are interpreted so as not to include unreal and academic cases, I think it might well be worth looking at.

What I am anxious to avoid is that there should be a double hurdle for a person to overcome, one portion of which is defined in the Act and the other is quite uncertain and, if I may say so with the greatest respect to the noble Lords who are sitting on the Cross-Benches, might be quite arbitrary and depend entirely on the whim or mood of particular individuals who are sitting there—"that the point is one which ought to be considered by that House." While I am going to withdraw my Amendment because it is allegedly imperfect, I think that this is a matter which ought to be reconsidered by the Government, as I undertake that I will reconsider it, and perhaps we can come back to it again on the next stage.

THE LORD CHANCELLOR

Before the noble Lord withdraws his Amendment, may I say that he did me the honour of saying that on all Committee stages when I said I would consider something, he believed that I did consider it. That is what I think is the object of a Committee stage: that points should be raised and the representative of the Government ought to consider them. Of course I will do that. Equally, I have always indicated to the noble Lord whether I thought it was really hopeful or not. I do not want to raise his hopes, but I promise I will consider this, as I always do, and if anything occurs to me I will write to him and let him know.

LORD SILKIN

I thank the noble and learned Viscount very much, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2:

Application for leave to appeal

2.

(3) Except in a case involving sentence of death, the House of Lords or the court below may, upon application made at any time by the defendant, extend the time within which an application may be made by him to that House or that court under subsection (1) of this section.

5.26 p.m.

LORD SILKIN moved, in subsection (3), to omit "except in a case involving sentence of death". The noble Lord said: Clause 2 provides for applications for leave to appeal in criminal cases, and it provides that the appeal shall be made within seven days. Subsection (3) provides that the House of Lords or the court below may extend the period, except in a case involving sentence of death. I want to make two points on this clause. One is that seven days is not very long. I have had representations made to me that the period ought to be at least fourteen. But that is not part of my Amendment. I am saving the time of the Committee, because otherwise I might have raised it on the Question, That the Clause stand part.

I find it difficult to understand why an exception should be made in a case involving sentence of death. I realise that it would be highly inconvenient that a person under sentence of death should be able to wait until the day before the sentence is proposed to be carried out and then be able to make an application for an extension of time within which to make an appeal. But, of course, the granting of such an application is entirely within the discretion of the court, and if the court found that there was no merit in the request for an extension of time it would not grant it: an extension would be granted only in cases where the court was satisfied that there was justification for it.

If that is so, I do not understand why an exception should be made in the case of a person who is under sentence of death. I should have thought that, particularly in those cases, before the sentence is carried out we ought to exercise the greatest care to ensure that if a person has the slightest chance of being able to put up a case which might cause the court to take a different view, he ought to be given a chance. After all, a sentence of death is something final: it cannot be recalled. Sometimes there is fresh evidence. Even if a person under sentence of death were able to secure fresh evidence at the expiration of seven days after the sentence had been pronounced, he could not apply to the court, and the court would have no power to grant him an extension of time. I am sure that my drafting of this Amendment is imperfect, but at least I think I have made the idea behind it quite clear. I hope that the noble and learned Viscount will look again at this question—I am not going to press it—and will perhaps explain to-day why an exception should be made against the person who is involved in a sentence of death. I beg to move.

Amendment moved— Page 2, line 29, leave out from beginning to ("the").—(Lord Silkin.)

THE LORD CHANCELLOR

I hope your Lordships will forgive me if I indulge in a little statutory history on this point, because I want the noble Lord, Lord Silkin, to have it before him when he considers the matter. Clause 2 (3) follows Section 7 (1) of the Criminal Appeal Act, 1907, which enables the Court of Criminal Appeal to extend the time within which notice of an application for leave to appeal may be given except in the case of a conviction involving sentence of death. That has always been the position under the Criminal Appeal Act and the purpose of excepting capital cases from the pro: visions allowing an extension of time within which to apply for leave to appeal is to prevent the execution of the sentence of death being indefinitely postponed by applications made out of time. Under Section 7 (2) of the Criminal Appeal Act, the sentence is not to be executed until after the expiration of the time within which notice of an application for leave to appeal may be given, or until after the application or the appeal as the case may be, is disposed of. There is a corresponding provision in Clause 3 (2) of the Bill.

One has to face that if the court had power to extend the time during which an application could be made it would be open to a prisoner under sentence of death, having failed in one appeal, to ask for an extension of time in which to appeal on some further point, and by a series of such applications to postpone the execution of the sentence. Our law and practice are based on the belief that when a prisoner has been sentenced to death, a final decision in his case should be reached as quickly as is compatible with giving him reasonable opportunities to appeal, and that there should not be opportunities for prolonged delays, at the end of which it might be felt inhuman to carry out the sentence at all.

LORD SILKIN

If the noble and learned Viscount would forgive my interruption, would he explain how this would mean postponing the execution of a sentence? To put an extreme case, suppose a person under sentence of death applies for an extension of time on the day before the sentence is to be carried out, and the court decides that it is a frivolous application and refuses it, then the sentence can be carried out exactly as intended. How then does the noble and learned Viscount fear an extension of the time in carrying out the sentence?

THE LORD CHANCELLOR

The sentence would have to be postponed for the application to be made to the court (I am taking the noble Lord's own hypothesis), and if that application for further time is made on the day before the sentence is to be carried out, then the carrying out of the sentence would have to be postponed for a certain number of days—at least a week—in order to give time for the application to be made to the court, and the possibility that the court would have to consider it. That could go on. This is very serious. I know the difficulty.

My noble and learned friend Lord Goddard may remember that on two occasions when I was Home Secretary a question was raised in the Court of Criminal Appeal with which he and his brethren felt they could not deal. One was a case in which someone came forward with evidence that someone else had confessed to the crime, and the Court of Criminal Appeal being unable to help on that point, I had to order an inquiry into it, I believe I am right in saying that that was suggested by my noble and learned friend himself in his judgment in the Court of Criminal Appeal. At any rate, he said that it was for me, as Home Secretary, to deal with the matter; and I did so. By the extrordinary speed and hard work of both persons holding the inquiry, it was possible to have that done in a limited time, but I remember being intensely worried by just this problem: I had to have the inquiry. But even if the inquiry shows no foundation for any action, at what time does it become inhuman to have the person hanged? I believe that that is a point which we have always to bear in mind.

There is another interesting point which the noble Lord, Lord Silkin, may already have considered, but at any rate I draw it to his memory. There is at present no power to extend the seven days during which an application must be made to the Attorney General for his fiat. Clause 2 (1) of the Bill allows seven days in which to apply to the court below for leave to appeal to the House of Lords, and a further seven days in which to apply to the House of Lords, if the court below refuses; so that there is additional time there. An appeal to the House of Lords will be made only on a point of law, and since any points of law arising on the case will have been considered in the course of the application to the Court of Criminal Appeal, there should be no difficulty in deciding within the period of seven days whether to apply for leave to appeal to the House of Lords. The point ought to have become crystallised by that time and a decision could be made within the seven days; and when an application has been made the defence can, if necessary, ask for time before the application is considered.

I want to be "more Royalist than the King", and introduce another point which the noble Lord, Lord Silkin, did not mention, but which I believe it is material that he should consider in this regard, because it might be put to me. That is an argument the force of which we see in the case where there is no reprieve. But suppose there is a reprieve. The objections urged in this argument might then be said to have no force. It was held by the Court of Criminal Appeal in the case of Twynham in 1920, where a man was sentenced to death and reprieved, and applied eight years later for leave to appeal out of time, that the court had no power to grant such application notwithstanding that the death sentence had been commuted.

That raises another point and one which might well have importance; and, as the noble Lord will be aware, the Home Secretary can ensure that the court is not estopped from hearing a case by referring it under Section 19 (a) of the Criminal Appeal Act. That was done in the case of George Fratton, in 1929; and, of course, if the point at issue is one of law and is decided against the prisoner, he will have then a fresh right to apply for leave to appeal to the House of Lords under Clause 1 of this Bill.

That still leaves the point (I want to face up to all the difficulties) that it could be suggested that a reprieved prisoner's access to the Court of Criminal Appeal out of time ought not to depend on the exercise of the Secretary of State's discretion. There, I think the answer is that that really raises a point which relates to the powers of the Court of Criminal Appeal and is not appropriate to this Bill.

But I should like to undertake to consider, when a suitable opportunity arises, whether the Criminal Appeal Act should be amended so as to enable the court to give leave to appeal out of time to a person who has been sentenced to death and reprieved. That is primarily a matter for my right honourable friend the Home Secretary who is charged with reforms in the criminal law. I should like to discuss it with him, and I should like to have the advantage of discussing it with my noble and learned friends Lord Goddard and Lord Parker of Waddington, with their immense experience in the matter. But I think there is a distinction between the two points. At the moment I am impressed with the point which I have endeavoured to put to the Committee, on the question of whether the death sentence is ping to be carried out. But I am quite prepared to look into the second point and, if an opportunity presents itself, to deal with it. I am sorry to have taken so long, but I should not have liked the noble Lord, Lord Silkin, to think I had not given fairly deep consideration to his point.

5.42 p.m.

LORD CHORLEY

May I say a word on this Amendment? I have a great deal of sympathy with the Amendment of my noble friend Lord Silkin. I would have said a word or two in respect of it, but before intervening, I wanted to hear what the noble and learned Viscount had to say. I must say that, while I can understand how the situation in the clause developed from the existing terms of the earlier Act, it seems to me that, on the whole, the argument which the noble and learned Viscount has put forward emphasises the need for something of the kind for which my noble friend Lord Silkin is asking.

I quite agree with the noble and learned Viscount that one ought not to allow the dreadful sort of situation which we have recently been looking at on the other side of the Atlantic to arise in this country by means of the possibilities of certiorari. In the United States we have in the Chessman case the ghastly situation the whole world has looked at. We should not allow anything of that kind to develop here, and I appreciate that point. But, after all, seven days is a very short time, and a man in this sort of situation becomes—or many men do—numbed by the shock of the Court of Criminal Appeal's dismissal of the appeal, and it may easily be more than seven days before the man is in a position to decide what he wants to do.

It seems to me that it ought to be possible—and I am sure it would be, with the ability of the noble and learned Viscount and those who help him in these things—to devise some sort of regulations by means of which the prisoner would be prevented from obtaining an indefinite postponement of the carrying through of the sentence by means of making applications of this kind. I am quite sure, in looking at the matter broadly, and in the interests of justice as a whole, that there ought not to be a distinction against the interest of a man who has been sentenced to death in respect of getting extended time in which to appeal; and the Amendment assumes that in the particular case he has an argument on which the Court of Criminal Appeal or your Lordships' House would feel there ought to be an appeal. It seems to me that a fundamental matter of justice is at stake here, and the necessary regulations ought to be devised to enabie this matter to be carried through.

LORD GODDARD

Surely in practice no difficulty will arise in this matter—would it?—because this is dealing with an appeal to this House from a decision of tie Court of Criminal Appeal. The first thing that will have to be shown is that there is a point of law of general importance, and the court below has to certify that. In giving judgment in a capital case, surely it will emerge at once from their judgment whether or not there is a point of general public importance. The prisoner is always represented by counsel, who can ask the court at once to say that the decision raises a point of general public importance; and if there is a point of general public importance in a capital case of course the Court of Criminal Appeal will say so. Once they have said that, then the prisoner can at once give notice; he can ask them there and then for leave to appeal; and if the court refuse leave all he has to do is to give his notice to this House and ask this House to give him leave to appeal. Once he has leave to appeal, he can put in his notice of appeal. But it seems to me that in practice everything would be done at the hearing of the appeal. I do not think any difficulty will arise.

LORD SILKIN

The difficulty arises where it has not been done and the person under sentence of death has allowed the seven days to go by and then finds, possibly, as a result of further evidence—

LORD GODDARD

But one cannot appeal on further evidence. It is only on a point of law to this House. That is just the point.

LORD SILKIN

At any rate, I should like to study what has been said by the noble and learned Viscount, and by the noble and learned Lord, Lord Goddard, and possibly raise the matter again. But in the meantime I am grateful for small mercies; and if my Amendment has had the result of bringing to the attention of the noble and learned Viscount the case of people who are reprieved and still suffer the same disability, it will be something. However, I should like to look at the matter again, and I know the noble and learned Viscount will not mind if I raise the matter again later.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clauses 3 and 4 agreed to.

Clause 5 [Power to order detention or admission to bail of defendant]:

THE LORD CHANCELLOR

This is purely a drafting Amendment. I beg to move.

Amendment moved— Page 4, line 1, leave out from ("Where") to end of line 2, and insert ("the court below has power to make an order under subsection (1) of this section, and either no such order is made or the defendant is released or discharged by virtue")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 agreed to.

Clause 7 [Restitution and revesting of property]:

THE LORD CHANCELLOR

This also is a drafting Amendment. There is an interesting historical and technical argument, which I shall spare the House. I beg to move.

Amendment moved— Page 5, line 14, after first ("conviction") insert ("on indictment")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 agreed to.

Clause 9 [Procedure]:

LORD CHORLEY moved to add to subsection (3): or where his presence is necessary to enable him to argue his case in person. The noble Lord said: I am moving this Amendment, really ex abundanti cautela. The third subsection of Clause 9 states: A defendant who is detailed pending an appeal … shell not be entitled to be present on the hearing of the appeal or of any proceedings preliminary or incidental thereto except where an order of the House of Lords or rules of court, as the case may be, authorise him to be present or where that House or the court below … gives him leave to be present. It seems that, unless it is intended to cover this in the regulations—and I think it is a matter which should appear in the Bill itself if that is the proposal—the position when the prisoner himself is arguing his own case has been overlooked. Therefore the Amendment proposes that the words or where his presence is necessary to enable him to argue his case in person should be added to the clause. I hope that this will commend itself to the noble and learned Viscount, and I beg to move.

Amendment moved— Page 6, line 25, at end insert the said words. —(Lord Chorley.)

THE LORD CHANCELLOR

I am very pleased to consider this, but all my researches so far show that it is not necessary. An appeal to the House of Lords under the Bill may be brought only where a point of law of general public importance is involved in the decision of the court below, so that it is unlikely that a defendant in custody would wish to argue his case in person. But if he does wish to do so, on appeal from the Court of Criminal Appeal or the Courts-Martial Appeal Court, whether on an application for leave to appeal or on the hearing of the appeal itself, it is in the highest degree unlikely that the court below or the House of Lords, as the case may be, would refuse him leave. No instance is known of this having occurred, and the point therefore appears to be of no practical importance.

May I leave it in this way? I am anxious not to make an unnecessary Amendment, because it is conceivable that there might be repercussions on the practice which my noble and learned friend the Lord Chief Justice has laid down in regard to applications for habeas corpus. But if those for whom the noble Lord, Lord Chorley, is speaking have any cases in mind, or if they or he on their behalf could convey to me whether they have any feeling of a danger of practical injustice, I should be most glad to consider it. Perhaps the noble Lord would withdraw his Amendment on the terms that, if he or they would write to me, I should be very pleased to consider it again and, if it proved necessary, to put something in the Bill.

LORD CHORLEY

I am grateful to the noble and learned Viscount. As I said, I am moving the Amendment ex abundanti cautela. I am inclined to agree with him that the chance of its being needed is a small one. I will, in fact, consult with those who are interested in these matters, and will let him know, as suggested. On that basis, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Innocent publication and distribution]:

LORD CHORLEY moved to add to the clause: () Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this motion.

The noble Lord said: This Amendment is really rather similar, in the sense that I am moving it also in order that a possible interpretation (although, one might say, perhaps not a very likely one) may not creep into the clause as it stands which might possibly lead to a new punishment for contempt. We therefore think that this subsection should be added to the clause. I should like to hear what the noble and learned Viscount thinks about the need for it, and for that purpose I beg to move.

Amendment moved— Page 7, line 17, at end insert the said subsection.—(Lord Chorley.)

THE LORD CHANCELLOR

I have considered this very carefully, and I do not think it is necessary. I should like to explain my reasons. I observe that the new subsection which the noble Lord, Lord Chorley, wishes to add to Clause 11 is in the same terms as subsection (4) of Clause 12. There is, however, no need for a provision of this kind in Clause 11, which is designed solely to give a new defence in certain cases of innocent publication and distribution. There can be no implication from Clause 11 as it stands that a person may be guilty of contempt in circumstances in which he would not be so guilty apart from the clause. In the case of Clause 12, however, subsection (4) is desirable, if not strictly necessary, in order to put it beyond doubt that, even in the excepted cases mentioned in subsection (1), publication of information is not to be treated as contempt where it would not have been so treated under the law as it stands at present. Without a provision of this kind, there might be room for argument as to whether the listing of the cases in which mere publication may amount to contempt had not replaced the existing law under which publication in these cases does not always amount to contempt. There is no room for such an argument in the case of Clause 11. I am quite positive in the matter. I have put it out, I hope clearly; and again, per- haps, the noble Lord and his friends might consider and see whether there is any aspect that I have inadvertently ignored. If so, I shall be pleased to consider it; but, personally, I have no doubt about the point at all.

LORD CHORLEY

I am grateful to the noble and learned Viscount. I must say that my own impression was much that which he has so lucidly explained to your Lordships. I should like to reserve the possibility of putting the matter down again, but, in the meantime, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 [Publication of information relating to proceedings in private]:

LORD CHORLEY moved in subsection (1), after the first word "private" to insert: (including information relating to any order made by the court in any such proceedings)".

The noble Lord said: This, again, is rather of the ex abundanti cautela type, and I move it with much the same feelings as I did the last Amendment. Your Lordships will see that the first subsection in Clause 12 reads in this way: The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, which are set out. We feel that it would be safer, so to speak, to expand that a little by putting in these words after the word "private" so that it would then read: The publication of information relating to proceedings before any court sitting in private (including information relating to any order made by the court in any such proceedings) … The noble and learned Viscount may say that it is not necessary to put these words in. I should like to hear what his views are on this particular point, and on that basis I beg to move.

Amendment moved— Page 7, line 19, after ("private") insert the said words.—(Lord Chorley.)

THE LORD CHANCELLOR

Again, I do not think that there is any need to make express provision for this purpose. It is true that subsection (2) refers to publication of the text or a summary of the order, and it may be that the contrast between this and the reference to information relating to the proceedings in subsection (1) has led the noble Lord and his friends to doubt whether subsection (1) does in fact cover information about the order itself. I can, however, assure him that there is no room for doubt on this point. The reason why express provision was made in subsection (2) about the text or a summary of the order was that it seemed desirable to draw attention to the existing position under which, even in the special classes of case mentioned in subsection (1), publication of the order cannot normally amount to contempt; and at the same time to make it clear that the court may go so far in certain cases as to prohibit publication of the order where it has power to do so and this course seems desirable. As the noble Lord knows, it is always undesirable to add words to a Bill which, in one's own view, serve no useful purpose. On the other hand, the last thing I want to do is to appear to be stalling for the stake of stalling, and if the noble Lord and his friends have any doubt and they will let me know, I will consider the matter again. But I myself am very clear at the moment.

LORD CHORLEY

I am grateful to the noble and learned Viscount. If I may, I would deal with this on the same basis as the last two Amendments, and on that basis I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13:

Appeal in cases of contempt of court.

13.

(2) An appeal may be brought under this section by the defendant against any order or finding made against him, or by the prosecutor against the refusal of an application for committal or attachment; and the appeal shall lie—

6.2 p.m.

LORD CHORLEY moved, in subsection (2) (b), after the first "of" to insert "a Divisional Court of the Queen's Bench Division". The noble Lord said: This is the first of a series of Amendments which have the same object in view—which is, to route the appeals from the Queen's Bench Divisional Court to the Court of Appeal. The Divisional Court may come into contempt cases, either as a court of first instance or as a court of appeal under paragraph (a). This Amendment, as framed, covers both aspects of this. It has been suggested to me since I put down the Amendment that it is not so clear as it might be. If the noble and learned Viscount takes that view, I should be glad to have it cleared up at the next stage.

It seems to me particularly important that in cases where the Divisional Court have been acting as a court of first instance there should be this routing through the Court of Appeal, rather than an immediate routing to your Lordships' House, partly for the reasons which I have already given. But on Second Reading the noble and learned Viscount, the Lord Chancellor, pronounced so definitely against this course that I have confined my Amendment to contempt cases, though it might be desirable that the practice should be more widely applied.

I think that it will be rarely necessary to have more than one appeal in cases of this kind, and the procedure for appeals to the Court of Appeal is so much simpler and expeditious than that to your Lordships' House that the argument seems to me to be strongly in favour of that procedure. This is also the view of the Bar Council. I have a letter from the Chairman of the Bar Council, which says that the Council have considered the matter and are very much in favour of this course. The organisation of the noble Lord, Lord Shawcross, takes the same view. I feel that, on the whole, the Court of Appeal would deal with this sort of matter more expeditiously, and it would be cheaper. I think that there is a very strong argument in favour of its being routed in this way. I think that puts the matter as shortly and as clearly as I can. I beg to move.

Amendment moved— Page 8, line 21, after ("of") insert ("a Divisional Court of the Queen's Bench Division").—(Lord Chorley.)

THE LORD CHANCELLOR

I do not make a habit of dealing with Amendments on a technical basis, but the noble Lord, Lord Chorley, has invited me to point out where his present series of Amendments are defective, and in reply to that may I briefly do so? I am considering Amendments Nos. 9, 11 and 12, which form this series together. These Amendments would leave appeals from inferior courts other than county courts (in particular quarter sessions) to go to the Divisional Court of the Queen's Bench Division under paragraph (a). The effect of his proposal however would be to insert a further tier of appeals in these cases by giving a right of appeal from the Divisional Court to the Court of Appeal and thence to the House of Lords, and this is plainly undesirable. The Amendments are in any event defective in point of form, for they make no provision for what is to be done about a Divisional Court of the Chancery Division or of the Probate, Divorce and Admiralty Division. The last mentioned Court sits frequently to hear appeals from magistrates in matrimonial cases, while the Chancery Divisional Court hears bankruptcy appeals from the county court and also sat recently to hear the case of Re Hastings (No. 3).

On the first point, I hope that the noble Lord appreciates, and that it is generally appreciated, that under the scheme of the Bill there is one unrestricted right of appeal from any court acting as a court of first instance in cases of contempt, and that the restrictions which we have been discussing in relation to other matters in the Bill do not apply where a court is sitting as court of first instance. The Amendments do not propose that appeals from the Court of Criminal Appeal in contempt cases should go to the Court of Appeal and one has then to consider whether the same should not apply to the Divisional Court of the Queen's Bench Division. The noble Lord suggests that these cases should go to the Court of Appeal and not to your Lordships' House. I think that he would agree that in nearly all cases such proceedings contain a quasi-criminal element and that, broadly, that would be inappropriate for the Court of Appeal. The result of this Bill will be to make a clear channel from the Divisional Court to your Lordships' House in a variety of criminal matters, and I consider that these cases should go through the same channel.

Most of the cases that have caused the worry have been newspaper cases, which come to the Divisional Court as the court of first instance, and where there is now to be an unrestricted appeal to your Lordships' House. I hope that the result will be, in the matters which are mentioned in "Justice's" pamphlet and which have been mentioned on previous occasions, that guidance will be given and the position made clear; and even though there is no criminal appeal from Scotland, if a case comes to your Lordships' House, clearly, notwithstanding any lack of binding authority, the views expressed in your Lordships' House will be treated with great respect in the Court of Session. Therefore I feel that we have built up a sensible structure. Everyone, of course, is predisposed in favour of his own child. But I arrived at this structure not only after great consideration (which may not be very important) but with a great deal of help from a number of people of immense experience. I believe that this will work and will do much to help those people in the newspaper world who, for various reasons, have been afraid. I hope that on consideration the noble Lord will feel that the new structure is the right one and will not press me on that point.

LORD CHORLEY

Obviously I must withdraw this Amendment and not move those which follow, because of the difficulties which the noble and learned Viscount has pointed out, but I should like to safeguard the position in respect of putting something down on the next stage of the Bill. I think the noble and learned Viscount has been a little too much influenced, if I may say so, by the newspaper aspect of these contempt cases. After all, they are not the only cases. While no doubt newspaper owners would wish to come to your Lordships' House, there may be other people to whom the cheaper and more expeditious procedure of the Court of Appeal would make a stronger appeal. I feel that the Court of Appeal is a very good court to deal with this sort of case. It may be that technically this is a criminal case; but it is only technically so, and it is certainly not like the ordinary sort of criminal case with which criminal courts are concerned. I do not feel that the fact that the Court of Appeal does not in the ordinary way handle criminal cases is a very strong argument in this particular connection. However, I do not want to take up your Lordships' time at this rather late hour by arguing the merits of Amendments which I have indicated I will withdraw or not move, and therefore I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

This is little more than a drafting Amendment. Broadly, in the clause as it stands the class of persons in judicial capacities is confined to official referees. There are other persons who I think are best described as any court, tribunal or person having the powers of the High Court or of a judge of that court". This would include, inter alia, official referees. For that reason, I put forward this Amendment. I beg to move.

Amendment moved— Page 8, line 23, leave out ("an official referee") and insert ("any court, tribunal or person having the powers of the High Court or of a judge of that court").—(The Lord Chancellor.)

On Question, Amendment agreed to.

On Question: Whether Clause 13 shall be agreed to?

LORD CHORLEY

May I say a word before we leave this clause? As the noble and learned Viscount will remember, on the Second Reading of this Bill we had a good deal of discussion about contempt in face of the court. As I understand this particular clause, it includes contempt in face of the court; but one or two people have asked me if I am sure about this, because they are not so sure. I should like to have the assurance of the noble and learned Viscount on this important point before we leave the clause.

THE LORD CHANCELLOR

It includes contempt in face of the court, in the various courts, and there is to be one unrestricted appeal in each case. When you get to the Divisional Court as an appellate court, then the second appeal is restricted. I hope that I have made myself clear. You always get one unrestricted appeal, but when you come up from the appeal court, then it is a restricted appeal. But there is an appeal, and the Bill provides for an appeal in the case of contempt in face of the court.

LORD CHORLEY

That means that it is restricted by the provisos we were considering earlier on?

THE LORD CHANCELLOR

Yes.

LORD CHORLEY

I should perhaps take this opportunity of indicating that the Bar Council's view about this is that in respect of these contempt cases, and also habeas corpus cases, they do not want to include points of law of importance. They think that in this type of case a right of appeal should be completely unrestricted. It may be that I shall put down Amendments with the object of trying to get half a loaf where I could not get the whole loaf as a result of the noble and learned Viscount's resistance to my first Amendment.

THE LORD CHANCELLOR

I should be grateful if the Bar Council could develop it on paper, because it is sometimes easier to follow that way. I find some difficulty in seeing why there should not be the restriction when the Divisional Court is acting as an appellate court. If the Bar Council could direct their attention to that, and would care to let me see their views in writing, I should be pleased to consider them. But, of course, I should be equally pleased to consider them through the mouth of the noble Lord, Lord Chorley.

LORD CHORLEY

I am grateful to the noble and learned Viscount. I think the substantial point is that in this type of case we are not so much concerned with points of law as with the broad impingement of the facts as a whole. It is there, I think, that they feel there ought to be the unrestricted right. However, I will bring the views of the Lord Chancellor to the attention of the Chairman of the Bar Council, and I feel sure that the noble and learned Viscount will get an indication in writing of the reasons why they take such a view.

Clause 13, as amended, agreed to.

THE LORD CHANCELLOR

I think that will be a convenient moment for us to break off, and I beg to move that the House do now resume.

Moved, That the House do now resume?—(The Lord Chancellor.)

THE DEPUTY CHAIRMAN OF COMMITTEES

Does the noble Lord, Lord Conesford, wish to say something?

LORD CONESFORD

I only wanted to say something in respect of Clause 13, and I can say it in a sentence. I would express my great regret that there had been no Amendment put down by the Government to Clause 13 to meet the points so forcibly put by the Lord Chief Justice and supported by my noble and learned friend Lord Goddard on the last occasion.

On Question, Motion agreed to, and Ho use resumed accordingly.