§ 3.12 p.m.
§ Order of the Day for the Second Reading read.
VISCOUNT COLVILLE OF CULROSS
My Lords, the fourth Report of the Criminal Law Revision Committee, which sits under the chairmanship of Lord Justice Sellers, and has as its members a collection of the most distinguished legal luminaries in the country, was presented to Parliament in September of last year, and there is attached to the Report, as an Annex, the draft of a short Bill. It is this Bill which I am now asking your Lordships to give a Second Reading. It was taken through another place by my honourable friend the Member for High Wycombe. It concerns the prosecution's right of reply at trials upon an indictment. I think the easiest 242 way to explain what the Bill does is to explain the four situations which at present occur, as the law stands, and as they will be if this Bill becomes law.
The first situation is that in which the defence calls witnesses to give evidence on matters of fact as well as, or instead of, witnesses as to character or a witness being accused himself. Where there is evidence of fact other than that given by the accused himself, the present law is that the prosecution has a right of reply, and this reply it can make, if it chooses to do so, after the final speech for the defence. It is chiefly with this set of circumstances that this Bill is concerned, because the major change that will be carried out, if your Lordships allow this Bill to become law, is that the prosecution's right of reply will in future be allowed to them, not after the final speech for the defence, but before it.
This change would bring the law into line with the other two common situations. The first of these is that in which the defence calls no witnesses other than the accused, or witnesses of character, and the accused is defended by counsel or a solicitor, in which case the prosecution may sum up before the defence makes its closing speech. There is a technical difference between a right of reply and summing-up, but in practice it makes no difference whatever. This situation was created by Section 2 of the Criminal Procedure Act, 1865 (to which I shall have to refer again, very briefly, later), and it is proposed that it shall be unchanged, because in this case the defence often has the last word.
The third situation that might occur is where no evidence other than that of the accused himself or as to character is called and the accused is not represented by counsel or by solicitor but defends himself. In such a case there is no right of the prosecution to sum up; and, again, it is not proposed by my Bill to change this situation.
There is one curious fourth situation, and that occurs, as your Lordships will see in paragraph 4 of the White Paper, (Cmnd. 2148), when one or other Law Officers of the Crown appears in person for the prosecution. By a resolution of the judges in 1884 it was laid down that in those circumstances the prosecution shall always have right of reply. But, my Lords, although this is still strictly 243the law, the Law Officers themselves decided in 1929 that they would no longer exercise this right. And this Bill provides, by Clause 1(1)(a), that this right shall no longer be even technically available to them. It will be seen, there fore, that the Bill is dealing only with the first and last of the four situations that I have described: the first, where evidence as to fact other than that of the accused himself is called by the defence, and the last, where one of the Law Officers appears in person for the prosecution. The general effect, as I think I said, will be that henceforth, if this Bill becomes law, in every case the defence, if it chooses, will have the last word at a criminal trial on indictment.
The Report also sets out the arguments for and against this change, and the arguments for it are these. First, in general, the proceedings of British court law ought, if possible, to favour the defence, and it is thought marginally that having the last word would do that. Secondly, there seems to be no real principle whereby there should be a distinction, so far as the order of final speeches is concerned, according to whether evidence of fact other than from the accused is or is not called by the defence. It seems unreasonable, and perhaps not very sensible, to make a distinction on these particular grounds.
The third reason that is quoted by the Report is that it seems a little wrong that counsel for the defence should have to weigh up in his mind the two ideas; one, to have the final word, and second, against that, the possibility of calling evidence of fact—because, of course, if he calls evidence of fact, as the law at present stands, he will not have the last word. Again, this seems to be possibly an unfortunate dilemma to put him in. In support of the conclusion to which they came, the Committee looked at the law of Scotland and found that there the law had always been as this Bill now proposes it should be in England, and they found that this caused no harm, inconvenience or injustice. And I learned to-day from my noble friend Lord Coutanche that for some time the law has also taken this form in the Channel Islands, and there, too, it has not caused any injustice or grievance.
The only arguments that were set out against the proposals in this Bill were, 244 first, that there is no need for a change at all, because nobody has complained about the present law. Secondly, it was suggested that there may be a case (which I suppose could occasionally occur) where counsel for the defence is able to resist pressure put upon him by his client or instructing solicitor to call evidence which he does not think would be suitable by arguing that such a course would deprive him of making a final speech in the case.
The third argument against making the change was that it might be thought that the prosecution, summing up in a long, complicated case, would be impartial and entirely free from bias, as prosecutions are always intended to be, and that this would be of more assistance to the jury than if they heard, as a final word from counsel, perhaps a somewhat one-sided appeal from the defence setting out things which were not always relevant to the main issues. As against that view, the Committee said, I think rightly, that it is not after all, the prosecution's job to sum up; that this should be left to the chairman of quarter sessions or to the judge at assizes. I myself have come to the conclusion that to make this change would be right and that the three arguments set out against it do not outweigh the ones that have been quoted in its favour.
The Bill itself, my Lords, is very brief. Subsection (1)(a) of Clause 1 deals with the position of the Law Officers of the Crown, and that I think I have explained to your Lordships. Paragraph (b) of that subsection provides for the main change in the law that I have described; that is to say, that where the defence calls evidence of fact other than from the accused himself then the prosecution's right of reply shall be exercised before the defence's final speech, if there is one. The reference to Section 2 of the 1865 Act is put in simply because some words in that particular section say that the right of reply shall be "as it is at present"—that is, as in 1865—and what ever it may have been then, it is clearly desirable to except those words from this Bill and its operation.
Subsection (2) of Clause 1 really is consequential upon the removal of the automatic right of reply for the Law Officers of the Crown, and if your Lord ships will look at the Committee's 245 Report you will see in paragraph 7 how this particular matter comes about. Section 3 provides as it stand at the moment:In cases where the right of reply depends upon the question whether evidence has been called for the defence,(That is, of course, it depends upon whether or not the law officers are pre sent in person for the prosecution) thenthe fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.The first part of that sentence is now unnecessary because the special right of the Law Officers is being removed, and therefore it follows that the second half of the sentence will be an automatic requirement in the law because the fact that the person charged has been called as a witness will rot in future ever of itself confer on the prosecution the right of reply; it will depend upon whether or not any other evidence of fact was called besides the accused himself.
The second clause is entirely formal. I hope I have satisfied your Lordships this is a good Bill and that you should agree with the Committee's Report presented last Autumn. Therefore, I hope that you will be able to give this Bill a Second Reading. I beg to move.
§ Moved, That the Bill be now read 2a. —(Viscount Colville of Culross.)
§ 3.22 p.m.
§ LORD MOLSON
My Lords, I am sure that my noble friend Lord Colville of Culross has presented a very con vincing case in favour of this Bill. In any case I am sure that no one would be disposed to oppose a Bill which was recommended by the Criminal Law Revision Committee, considering the extreme weight and distinction of the members of that Committee. It seems to me that this may be an opportunity to urge upon the Government that other matters affecting the criminal law might be referred by the Home Secretary to the same distinguished Committee for consideration.
I am sure—and here I speak entirely as a layman, for although I was called to the Bar I have never practised—public opinion is very much concerned by the very large proportion of accused persons who avoid being convicted. That, I am sure, is a very widespread 246 opinion, and just recently there have been a number of pronouncements by very distinguished lawyers in which they expressed their grave concern about this matter. I propose to quote the noble and learned Lord, Lord Gardiner, my noble and learned friend Lord Reid, and the noble and learned Lord, Lord Shawcross.
The noble and learned Lord, Lord Gardiner, is well known as a law reformer and a most humane person. In views which were reported in the Sunday Times last Sunday he refers to the seriousness of the large number of accused persons who escape conviction. He spoke in his usual forceful and clear way. He said:The important thing really in the conviction rates. Take a young man who is wondering whether to do that housebreaking job or not. What really decides him by and large is not whether if he is caught he is going to get two years or three, but if he thinks he is going to get away with it he does it; whereas if he thinks he is going to be caught and punished, he does not do it. Before the war the conviction rate for indictable offences was over 50 per cent., so the odds were if you committed a serious crime you would be caught and punished. Ever since the war that rate has fallen and fallen. Last year in London for robberies it was 23 per cent. That means the odds are 3 to 1 if you do a robbery in London you will not be caught or punished at all. This is what causes the trouble.A speech that was made by my noble and learned friend Lord Reid, on January 28 of this year, on the Criminal Court of Appeal Bill will, I am sure, be well within the recollection of a number of your Lordships. He said [col. 1091]:The result is"—and here he was speaking of the number of convictions that were quashed by the Court of Criminal Appeal—… that scores of guilty men are escaping to-day … The public read and take note of that. Some people, I am afraid, think to-day that the public image of the law is becoming tarnished … The spectacle of a stream of almost certainly guilty men escaping on technicalities is not the least of the reasons for any disrepute into which the law may be falling in the view of the general public.The noble and learned Lord, Lord Shawcross, addressed the West Riding magistrates on November 5 last year, and in a speech which I think was intended to be provocative, but at the same time was also very thought-evocative, he said: 247From the moment that a criminal falls under suspicion to the moment of the eventual verdict, the suspected criminal is protected against any kind of inquisitorial examination before trial or even during trial. One can almost say that our system falls over backwards to save him from conviction. In the English system the judge is not concerned with absolute as distinct from objective truth. The judge is more like an umpire in English games. He must make sure that the rules are observed. But the defence of society against crime is not a game. Is it right that judges and magistrates should sit in court not themselves to help in discovering the truth but rather to answer the question 'How's that?'?As a result of this speech by the noble and learned Lord, Lord Shawcross, there was a leading article in The Times, followed by a number of letters written by practising barristers with daily experience of the courts. It is quite true that neither The Times nor most of the correspondents adopted the exact suggestions which had been made by the noble and learned Lord, Lord Shawcross. But among them all there was a general consensus of opinion that the present law and procedure is unduly favourable to accused persons. The Times when writing upon it said this:The crucial question in England seems to be, do too many of the guilty go free? To this the answer of Lord Shawcross and possibly of most police officers is, Yes.Then The Times comments:Justice fails equally when an innocent man is convicted, or when the criminal is not brought to book.The fact that there was appointed by warrant, on February 2, 1959,to be a standing committee, to be known as the Criminal Law Revision Committee; to examine such aspects of the criminal law of England and Wales as the Home Secretary may from time to time refer to the Committee, to consider whether the law requires revision and to make recommendationssuggests that it would be appropriate for the Home Secretary to bring before this extremely weighty Committee the widely expressed opinion supported by three such distinguished lawyers as these three Members of your Lordships' House, and consider whether there may not be other revisions required in the law which, without incurring any danger of the wrong conviction of innocent persons, may result in the conviction of a larger proportion of the increasing number of criminals who are responsible for the 248 appalling increase in violent crime in this country.
§ 3.32 p.m.
§ LORD COUTANCHE
My Lords, I greatly hope that your Lordships will give this Bill a Second Reading. I shall detain your Lordships for only a few moments, but I think it would be remiss of me if I did not state the reasons why I hope that your Lordships will pass this Bill. For forty years before I had the honour and privilege of coming to your Lordships' House I was engaged in the practice of the law in my native Island of Jersey, first as an advocate, then as a Law Officer of the Crown, and lastly for 25 years as Bailiff or Chief Justice of the Island. I was much concerned with criminal proceedings. As an advocate I defended; as a Law Officer of the Crown I prosecuted; and as Chief Jus tice or Bailiff I presided at the trial of persons charged on indictment with the commission of almost every crime in the calendar, from murder downwards.
Almost exactly 100 years ago, the Parliament or States of Jersey enacted, and Her Majesty in Council confirmed, a Statute on criminal procedure which brought in a great number of reforms in the administration of criminal justice in Jersey. Among those changes was the introduction of the system of trial by jury in the sense in which we understand that term to-day. That Statute is, of course, as all Statutes in Jersey were in those days, drafted in the French language, and to endeavour to paraphrase it would really not be of any advantage. But I can say, with complete confidence and sincerity, that the effect of one of the sections—or articles, as we call them —of that Statute was to bring into force the rule which is proposed to your Lordships by the Bill which is at pre sent before this House. That article in fact provided, as is provided by Clause 1(1)(b) of this Bill, that the time at which the prosecution is entitled to exercise the right of reply shall be at the close of the evidence for the defence, and before the closing speech, if any, for the defence.
As I have said, in various capacities I have been concerned with that law and prosecutions brought under it for a long period. I believe that the rule which is thus established is just and reasonable, and one which is to be com mended to your Lordships' House. It 249is, therefore, with great pleasure that I support this Bill which is brought before you by my noble friend Lord Colville of Culross.
Having listened with great attention to what has been said by my noble friend Lord Molson, I go a long way with what he has said, subject to one great reservation. I like to think that measures will be brought before this House or before another place which will ensure that the guilty do not escape punishment. But I am convinced that it is essential in any move in that direction that Parliament should make quite sure that, so far as is humanly possible, such changes in the law would not result in an innocent person's being condemned.
§ 3.36 p.m.
§ LORD CHORLEY
My Lords, on behalf of noble Lords who sit on these Benches, I should like to give a welcome to this Bill and to support it. It seems to me to be a really important Bill, and I was surprised to find that it passed through all its stages in another place without a word being said by way of explanation or support of it. I think we were particularly fortunate this after noon to have such a lucid and careful exposition of its terms by the noble Viscount who has introduced it.
The subsection dealing with the final right of reply of the Law Officers, as he has pointed out, is not of great practical importance; but the other subsection is, I think, most important. It is of practical importance in that it takes away the last word from the prosecution and gives it to the defence; and I think it is of substantial symbolic importance and significance. The conception of a criminal trial in this country, which has developed over the last hundred years, and to which the noble Lord opposite referred, is one in which the prosecution is in the position of making and placing before the jury a dispassionate investigation of the facts; not coming before the jury and asking them to find the accused man guilty of the offence with which he is charged, but to place impartially before the jury not only the facts which suggest that the accused man is guilty, but also any evidence which may lead them to find a verdict of not guilty. It is on that basis that it has been well said that the job of the prosecution is to prosecute and not to persecute.
250 I have always felt that it was to some extent an inflection of the conception of the administration of the criminal law in this country that the prosecution should have both the first and the last word to the jury. On the face of it, this is unfair. Generally speaking, I have no doubt that it has been quite temperately exercised. Indeed, in my experience, frequently the prosecuting counsel does not take advantage of his right to have the last word. But there are other cases where the enthusiasm which is generated in a legal contest brings him to his feet, and I have often myself had the rather unpleasant experience of hearing quite a fighting speech made by prosecuting counsel to the jury at the end of a trial. Despite the fact that there follows a careful summing-up by the Judge, such a speech from the prosecution cannot, I think, fail to have some effect on the jury, because emotion often carries much more weight than the dispassionate words of a careful summing-up. This Bill erases what has for a long time been regarded by many people, including myself, as a little blot on the high conception of criminal justice which we have in this country, and therefore it is very much to be welcomed.
Before I sit down, I should like to say a word or two on the subject of the prosecution's having the first word to the jury as well. The object of prosecuting counsel's opening speech should be just to tell the jury about the witnesses who are to be called—enough to enable them to follow the evidence which will be given. After all, it is a strange experience for a jury to be in a court for the first time, not knowing very much about what is going on. That is the purpose the opening speech of the prosecuting counsel ought to meet. It should be quite short, and the object should not be to make a detailed case against the person. That should be made not by prosecuting counsel but by the evidence given by the witnesses in the witness box. In recent years, however, it has become more and more the practice of prosecuting counsel to build up a very careful case against the accused person, and in the hands of an able advocate that cannot fail to have a considerable effect on the minds of the jury. That is the view of many people.
251 I am told by friends well acquainted with the administration of the criminal law in Scotland—and the noble Viscount, Lord Colville of Culross, knows about this better than I do—that that is not regarded as the correct way for the prosecution to open a case. The view taken in Scotland is that the opening speech should be very short and should go no further than to tell the jury what witnesses are to be called, and to indicate briefly the sort of evidence they are to give, but not to go into details. In my view, that is the correct way of proceeding, and the way in which the process has been developing in England is a mistake and is to some extent an infraction of the conception of justice which I mentioned earlier.
Of course, we cannot have a Bill to deal with a situation of this kind. It can be dealt with only on the basis of a change of attitude on the part of members of the Bar who act as prosecuting counsel, but it seems to me that the Judges themselves could do something to control the situation. I hope that the Lord Chief Justice, whose sincere desire is that there should be fair play to the prisoner, will do all he can in this matter. After all, it is even more important that there should be fair play to the person in the dock than that convictions should be secured. In the last resort, one of the great prestige elements of this country is the fact that we are one of the countries in the world in which the man in the dock gets a fair trial, and anything which militates against a fair trial ought to be checked and dealt with. Therefore, I hope that the Lord Chief Justice, whose views are well known, will bring these matters to the attention of his colleagues on the Bench; so that we shall deal, as in this Bill, not only with the position in regard to the last word, but also with the position of the over-use of the first word, in order that it may be controlled and checked by the Judges themselves.
§ 3.45 p.m.
§ LORD OGMORE
My Lords, I should like to say a few words on the subject raised by Lord Molson, which I assume is in order on this Bill, because to some extent it affects the right of the defence, and, indeed. in most cases enhances the 252 rights of the defence. But we should be a little careful about agreeing to the sort of proposition made by the noble Lord, Lord Molson. I know very well that there is a school of opinion in this country—and very eminent opinion, too—which holds that the party which they think is guilty gets too good a chance and that some guilty people get away with it. But the fact is that if one makes any amendment to the system it means going over to the Continental practice, which is an inquisitorial system; that is to say, with the judge or justice, as the case may be, brought into the case at the very beginning. The Juge d'Instruction is the examining magistrate who comes into the case right from the start. Your Lordships who follow the "Maigret" series on television will have seen Inspector Maigret constantly being upset by the fact that he has to instruct the Juge d'Instruction. This, of course, is not the case in this country. Here, the first the magistrate knows about the matter is when the case comes up in court, when it is fresh to him.
To my mind, there are two defects in the Continental system. First, it penalises the accused. To give an example, towards the end of the war I attended in Paris some of the trials of people who were alleged to have been guilty during the war of collaboration. I remember one case in particular. One old man, who seemed to me to be decrepit, and, indeed, vast knowing exactly what he was doing, a man of well over 70, was in the dock, and the very first words put to him by anybody were spoken by the presiding judge. The words were: "What excuse have you to give for the commission of this appalling crime?". To our ears, of course, such a question is absolutely unheard of.
This old man, who, as I have said, was extremely decrepit, and who seemed very vague, was alleged to have given away to the Germans a few months earlier two R.A.F. officers who were escaping through the pipe-line down to Gibraltar. The evidence was so thin that in this country it would never have got to the magistrate, and would certainly not have got past the petty sessions. But there was the picture of this old man in the dock, on extremely thin evidence, all hearsay so far as I could make out, and the first words he heard put to him by the presiding judge were the words 253 I have just quoted. It seemed to me completely unfair. If those Members of your Lordships' House who think in this way were to be put in that position, I doubt whether they would be as much in favour of that system as they are to-day.
Secondly if one were to go over to this system, one would get a completely different attitude on the part of the public to the police and the courts. In this country our police are not armed, there are comparatively few of them, and, by and large, they have the support of the public as a whole. We all support the police, and that is an important factor in civic life. But in many cases on the Continent one does not find support for the police. The: public tend to think "That's their business. Let them get on with it. It's nothing to do with me." It is partly because people here feel that they will get a perfectly fair trial; that the police will have to make out a case before the magistrate, and then if necessary before Judge and jury, with the whole matter being threshed out—and if there is any leniency shown it will be shown to he accused—that we find this attitude to the police and the courts. I believe this is a strong point in our system. The accused gets not only justice but also mercy, and a very fair deal indeed.
I am completely in favour of the Bill, but there is just one question that I should like to ask the noble Viscount or the noble and learned Lord who sits on the Woolsack. Sc far as I see it, there is one case in which the accused is going to be worse off under this Bill than he is now, and that is where he is not defended by counsel or a solicitor. If I am wrong, I will, of course, gladly withdraw, and I hope I am wrong, but I see that in Clause 1(1)(b) it is said:the time at which the prosecution is entitled to exercise that right shall, notwithstanding anything in section 2 … be after the close of the evidence for the defence and before the closing speech (if any) by or on behalf of the accused.Could either of those noble Lords clear that point up? Where no counsel or solicitor is appearing on behalf of the accused—that is to say, where the accused appears in person—there is now no right of reply by the prosecution, even before the accused has himself said the final word.
VISCOUNT COLVILLE OF CULROSS
think I can answer the noble Lord, Lord Ogmore, on that point. The distinction in this case is between the right of reply and the summing up. The Bill I am introducing to your Lordships this afternoon deals only with the right of reply, whereas the particular circum stance that the noble Lord has in mind is the case of summing up. Therefore, as I hoped I had explained, there will be no change in the situation under Section 2 of the 1865 Act. There will be no change at all so far as this Bill is concerned.
§ LORD OGMORE
I am much obliged to the noble Viscount. I did not think I was really dealing with summing up, which I gather is a matter for the judge to the jury. But the noble Viscount having convinced me that the accused is not in any worse position under this Bill than he is now, then of course my solitary—I will not say objection, but my solitary hesitation, is completely gone, and I support the Bill in its entirety.
§ 3.53 p.m.
§ LORD GUEST
My Lords, I do not intend to intervene in this debate on a Bill dealing with English procedure, except to correct what may be a misapprehension arising out of the remarks of the noble Lord, Lord Chorley, in regard to the law of Scotland. In Scot land, unlike England, there is no opening speech by the prosecution. The evidence is led right away for the prosecution, and in Scotland it always has been the rule that the defence has the last word. I think it goes back even further than the law of Jersey which, apparently, was enacted only a hundred years ago. It has been the universal rule in Scotland that the defence has the last word, and that has worked perfectly well in Scot land, as the Committee have reported. It is for these reasons that I personally would support this Bill. I thought it right to correct any misapprehension that there might be as to Scottish procedure.
§ 3.55 p.m.
§ LORD DOUGLAS OF BARLOCH
My Lords, I want to say just a word on the topic which has been raised by the noble Lord, Lord Molson. I confess that I am not at all clear what it is that he has in mind, except that he starts off, as apparently some other noble Lords do, from the assumption that a very large 255 number of guilty persons, or persons who ought to be found guilty, are brought to trial and are acquitted. That may be so; but there is one fundamental principle which we have had in this country for quite a long time past, and that is to make every effort to ensure that innocent people are not convicted. The general view rightly seems to be that it is a far more detrimental and offensive thing that an innocent person should be convicted than that some guilty person should escape.
I do not know what kind of reform the noble Lord had in mind, except that he deprecated the fact that the judge in this country has to act, so to speak, as an umpire. Some of us who are familiar with the practice of the courts have occasionally had the experience of seeing a case conducted before a judge who rather departed from that practice and who continually interrupted and asked questions, and the results were extremely unfortunate. Indeed, one can call to mind cases in which that has happened and the Court of Criminal Appeal has felt obliged to quash the conviction, because of the way in which the trial was conducted.
It seems to me that you cannot have a halfway house in this matter. Either you have our system, or else you have the Continental system in which there is an inquiry by a judicial officer who interrogates the accused and the witnesses. That is, as the noble Lord, Lord Ogmore, has said, a very different conception of the way in which proceedings in criminal cases should be conducted. I do not deny that something can be said in support of it, but I do not consider that a matter of that kind is one which should be properly referred to the Criminal Law Revision Committee. It goes to the whole root of the system of Criminal Law in this country, and if that is to be questioned it should be done after a very strong case has been made out that it is necessary; and it should be done by a body of the utmost weight and distinction. I think we should hesitate very much before entertaining any ideas of that kind.
As to the Bill itself, I welcome it very much, because it does a comparatively rare thing in our legislation; that is, it simplifies the law, instead of making it more complicated. If it errs at all it 256 errs in the general direction which I have mentioned; that it favours, no doubt to a very slight degree, a person who is charged, by enabling him or his representative to have the last word in the discussion.
§ 3.59 p.m.
§ THE LORD CHANCELLOR (LORD DILHORNE)
My Lords, I am sure the whole House will be grateful to my noble friend for giving us this early opportunity of considering, and indeed acting upon, the latest published Report of the Criminal Law Revision Committee. I think, also, that tribute is due to the Bar Council, who in 1963 in formed my right honourable friend the Home Secretary that they favoured an early amendment of the law on the lines now proposed. They suggested that the matter should be referred to the Criminal Law Revision Committee for consideration, and that of course has been done. It is in these circumstances that we are considering the Bill which the Committee put forward with their Report.
I do not want to say very much this afternoon, but I should just like to make a few observations in relation to various matters that have been raised in the course of this debate, as well as in relation to the Bill itself. As has been pointed out, Clause 1(1)(a) of the Bill abolishes the right of the Attorney General and the Solicitor General when they conduct a prosecution to address the jury last, and that proposal merely regularises the present practice. That right on the part of an English Law Officer has not been exercised since 1922, and in 1929 the then Law Officers announced that they would not exercise it in future. Of course, they could not bind their successors, but the fact that the right existed continued to be published in every edition of Archbold's Criminal Law and Practice.
When I had to conduct prosecutions as a Law Officer, my opponents were always concerned to find out whether I was contemplating exercising that right. I made it clear on every occasion that I had no intention of doing so; and I cannot believe that, even if this provision were not contained in this Bill, any English Law Officer would seek in future to exercise that right. So, really, 257 Clause 1(1)(a) is merely taking out a bit of deadwood; and I am glad to say that my right honourable and learned friends the Attorney General and the Solicitor General both agree there is no point in continuing the existence of this right, and that it should be abolished.
My noble friend Lord Molson has used this debate for introducing a subject which I am sure is lot only of great public concern but of great concern to everyone in your Lordships' House, and that is in relation to the number of per sons who are accused and who, he said, avoid conviction. Of course, one has no statistics of the persons who are accused who avoid conviction and yet are guilty of the offences, but I think there are two parts of the propositions that he was advancing to be considered. First of all, if it is to be suggested that juries are finding people not guilty when they should be finding them guilty, then, indeed, so far as I can see it, the noble Lord is suggesting, rather as the noble Lord, Lord Douglas of Barloch, has suggested, that the burden of proof which rests on the prosecution should be lightened.
That indeed would be a major change in our criminal law as established over a very long period, and I, for one, would not be in favour of lightening in any way the burden of proof that ordinarily rests upon the prosecution of establishing the case with a sufficient degree of certainty. When there is a provision before your Lordships' House putting the onus on the defence in relation to a criminal charge, that is nearly always questioned, and a case for doing so has to be made out to your Lordships' satisfaction.
The noble Lord, Lord Molson, then reminded your Lordships of the words used by my noble and learned friend Lord Reid in a recent debate, when he said that scores of guilty men escape conviction. The noble and learned Lord, Lord Reid, was on that occasion dealing with the work of the Court of Criminal Appeal. The powers of the Court of Criminal Appeal were under consideration at that time, and your Lordships will remember that, under the Criminal Appeal Act, 1907, the Court has power, although something may have gone wrong in the course of the trial, to apply the proviso to Section 4 and sustain and uphold the conviction if it is satisfied 258 that there has been no substantial miscarriage of justice.
I would remind the noble Lord, Lord Molson, who asked that the matter should be referred to the Criminal Law Revision Committee, that the Home Secretary and I have recently appointed a Committee, over which the noble and learned Lord, Lord Donovan, is to pre side, and is presiding—a Committee which I believe has already started sitting—to review the whole powers, procedure, and indeed machinery, of the Court of Criminal Appeal. I think that may have escaped his notice, and if it did I am sure he will be glad to hear that that is now happening and that that matter is now under review.
A great deal has been said about its being too easy for the accused person; and I must confess that I do not myself agree with the statement in paragraph 10 of the Report of the Criminal Law Revision Committee that there is—and I quote their words—… a general principle that procdure should be such as to favour the defence so far as possible ".I do not believe there is any such principle. I know of no principle that the scales of justice should be tilted in favour of the defence. The objective, surely, must be that the procedure at the trial should be as fair as possible, not that it should favour either the defence or the prosecution.
Some advocates I know take the view that it is a very considerable advantage to address the jury first—and that, of course, under our system, the prosecution do, because they have to present their case. The noble Lord, Lard Chorley, made some observations with regard to that. I am afraid I could not entirely agree with what he said. The duty of counsel conducting the prosecution is to present the case for the prosecution, and although I am all in favour of short speeches on appropriate occasions—and not least in your Lord ships' House—at the same time I can not see how a case (for instance, a long firm fraud case) with a mass of documents and possibly thirty witnesses for the prosecution can possibly be understood by a jury unless the case has been adequately presented by the counsel for the prosecution in opening, so that when the jury come to hear 259 the evidence they can see how the particular pieces of evidence fit into the puzzle. But that does not mean, of course, that prosecution should be persecution, and the most incompetent way of conducting a prosecution is to give any appearance of unfairness to the accused, because that will lead almost certainly to an acquittal. It is the duty of counsel for the prosecution to prose cute, and to present the case fairly and impartially.
Far from agreeing with the noble Lord, Lord Chorley, in his view that there has been a deterioration in the conduct of prosecutions in recent years, my mind goes back to a considerable time ago. When one looks at the old law reports, one sees that the practice in conducting prosecutions was very far different from what it is to-day. In those days the criticisms that the noble Lord, Lord Chorley, made would have been justified. They are not, in my belief, to-day. But if the prosecution are to have, as I think they must have, the right of opening the case and of presenting it to the jury in a way the jury can understand—and it is only if they can do that that they have any opportunity of satisfying the jury beyond reasonable doubt—then it certainly seems fair to me that, if they have the first word, they should not have the last word, too; and that is what this Bill proposes.
I should like to say a brief word about the application of the procedure proposed in this Bill to the procedure in the magistrates' courts. The present Bill refers only to trials on indictment—that is to say, to trials before courts of assize and quarter sessions—because it is only in these courts that the order of speeches is governed by legislation. The procedure in magistrates' courts is similar, but that is prescribed, not by Act of Parliament, but by the Magistrates' Courts Rules. These are Rules which I am empowered to make after consultation with the Rule Committee of the Supreme Court. It is obviously desirable that procedure in this matter should be the same in all criminal courts, and, therefore, if Parliament accepts my noble friend's proposals for the amend ment of the law in the higher courts, appropriate action will be taken by Rule to make an equivalent change in the lower courts.
260 The noble Lord, Lord Ogmore, asked a question about the position where the accused was not represented by counsel or solicitors. I should like, if I may, just to answer that question by saying this: this Bill confers no new right on the counsel for the prosecution of making speeches. It merely alters the order in which he can speak where he has the right to do so. There fore, I do not think we need feel that the undefended defendant is in any way prejudiced by this measure. This is a short Bill. It does not purport to do more than make a small improvement in the procedure of the Criminal Courts; but it is still, I would say, an important improvement in that procedure. It is a change which many who practise in the courts have long thought to be desirable; and I think that my noble friend has good reason to hope that it will command general support.
§ 4.11 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I am very glad this Bill has given rise to an interesting debate induced by my noble friend Lord Molson, and I am sure your Lordships will be equally glad that it has been the occasion of so interesting a speech from the noble and learned Lord who sits on the Woolsack. I would not attempt to add to what he has said, except to thank all noble Lords who have spoken for the support they have given this Bill and to say that I think it is an excellent thing that there should have been a full debate on it, seeing that there was no word spoken in another place to explain it at all. I feel that the OFFICIAL REPORT of to-day may be of great interest to practitioners of the law who want to know exactly what this Bill would mean. I hope that I did not muddle the noble Lord, Lord Ogmore, when I was talking about summing up. It was not in reference to summing up by a chairman or judge. It is, in fact, technically a right in some cases for the prosecution to sum up the evidence; and it was to that that I was referring. There is in practice no difference between that right and the right of reply. I am grateful for the reception that this Bill has had, and I hope that your Lordships will now give the Bill a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.