Lords Sitting of 14 January 1964

Preamble
Reassembling after the Christmas Recess, The House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bristol

CLERK ASSISTANT OF THE PARLIAMENTS
2.35 p.m.
THE LORD CHANCELLOR (LORD DILHORNE): My Lords, I beg to move, That this House do approve the appointment by me, pursuant to the Clerk of the Parliaments Act, 1824, of Robert Westby Perceval, Esquire, to be Clerk Assistant of the House in the place of Henry Montagu Burrows, Esquire, C.B., C.B.E., who has retired.
I am not sure whether it is usual for a Lord Chancellor to say something on an occasion such as this about our former Clerk Assistant. Many of your Lordships have known him for a long time. I cannot claim to have done that, for I have not been a Member of your Lordships' House for so very long. But I should like to express my thanks to him for the way in which he helped me, and I know in what high esteem he was—and is—held by all your Lordships. He was a valued servant of this House, with great knowledge of its traditions and its customs.
He served through both world wars in the Royal Navy; was at the battle of Jutland; and took part in the evacuation of Dunkirk. He also served in the Royal Air Force. Of that record alone there is no man who would not be proud. To that he has added service to this House since 1925.
My Lords, I know that it was with great regret that your Lordships learnt of his retirement. My noble friend the Leader of the House wanted to be here to-day to pay his tribute to Commander Burrows. Unfortunately he is unavoidably prevented from doing so. He has asked me to say that he joins with me in expressing thanks to Commander Bur-
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rows for all he has done and in hoping he will enjoy many happy years of retirement.
Moved, That this House do approve the appointment by the Lord Chancellor, pursuant to the Clerk of the Parliaments Act, 1824, of Robert Westby Perceval, Esquire, to be Clerk Assistant of the House in the place of Henry Montagu Burrows, Esquire, C.B., C.B.E., who has retired.—(The Lord Chancellor.)
EARL ALEXANDER OF HILLSBOROUGH: My Lords, the Opposition desires to assent to the Motion before the House and is grateful to the noble and learned Lord the Lord Chancellor for his references to the Clerk Assistant who has retired. We appreciate the sentiments he has expressed, and I myself am very grateful to the Offices Committee of the House of Lords for the resolution they have already passed with regard to the services of Mr. Henry Burrows.
I seem to be becoming almost a veteran for service in an active capacity in the House of Lords, although some are much more veterans than I am. It is now just about fourteen years since I was introduced into your Lordships' House. During the whole of that time I do not remember any occupant of a Chair at the Table who has been of better or more courteous assistance or who has given more wise advice on the procedure of your Lordships' House than the Clerk Assistant who has just retired. I appreciate very highly the references made by the noble and learned Lord to his services to our country, quite apart from his service in the House. Naturally, as he served as a Commander in the Royal Navy—I have a great affection for all present and past members of the Royal Navy—I value very much the service he gave to the country in that respect.
I have been looking again this morning at the paper-covered red book which is available to your Lordships, the Companion to the Standing Orders of your Lordships' House. I know that Mr. Burrows had a very large part to play in the compiling of that Companion, which I am sure will be of great assistance to all Members of your Lordships' House. I wish him very good health, and his family with him, and great enjoyment in his retirement. I hope it may not be

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the end of his public services in some capacity or other to the country he loves so dearly. I would also express my best wishes to the new occupant of the post.
LORD REA: My Lords, if I may, I would express from these Benches—and I hope it is the opinion of all quarters of the House—my regret at the resignation of Mr. Burrows, coming as it does rather suddenly, and our appreciation of the great services he has rendered not only to the House as an institution but, as I think all will agree, to almost every active Member who has sought his help. The noble Earl who leads the Opposition spoke of knowing him for fourteen years. That is a short time—I have known him for fifteen years. During that time he has invariably been kind, friendly, humorous and extremely expert on the work in which he specialised. I should therefore like to add from these Benches, and, as I have said, from, I hope, all quarters of the House, our best wishes to him and our self-congratulation that his post is to be filled by another whom we all respect and like so much.
On Question, Motion agreed to, nemine dissentiente.

READING CLERK AND CLERK OF OUTDOOR COMMITTEES
2.41 p.m.
THE LORD CHANCELLOR: My Lords, I beg to move, That this House do approve the appointment by me, pursuant to the Clerk of the Parliaments Act, 1824, of Peter Gordon Henderson, Esquire, as Reading Clerk and Clerk of Outdoor Committees of the House in the place of Robert Westby Perceval, Esquire, appointed Clerk Assistant.
Moved, That this House do approve the appointment by the Lord Chancellor, pursuant to the Clerk of the Parliaments Act, 1824, of Peter Gordon Henderson, Esquire, as Reading Clerk and Clerk of Outdoor Committees of the House in the place of Robert Westby Perceval, Esquire, appointed Clerk Assistant.—(The Lord Chancellor.)
EARL ALEXANDER OF HILLSBOROUGH: My Lords, may I say that
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I am not a stranger to Mr. Henderson, and I wish him every possible success in his new post.
LORD REA: My Lords, might I just say "Ditto", most emphatically.
On Question, Motion agreed to nemine dissentiente.

TIDYING-UP OF HYDE PARK
LORD AMULREE: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government when the pieces of the Cumberland screen will be removed from behind the Powder Magazine in Kensington Gardens in fulfilment of the hope exprssed to him on May 29 last.]
THE FIRST LORD OF THE ADMIRALTY (EARL JELLICOE): My Lords, it is expected that the screen will be moved before this spring. It was offered for sale by open competitive tender last autumn, on the basis that it should be removed from Hyde Park as soon as possible after the acceptance of the most favourable tender. The firm who tendered successfully have bought the screen in order to re-erect it at their premises in the North West of England, and to make it an object of interest and attraction in the locality. Her Majesty's Government feel that, in the interests of the satisfactory fulfilment of this scheme, some postponement of the date set for its removal is justified. The area behind the Magazine will then be tidied up as quickly as possible.
LORD AMULREE: My Lords, I should like to thank the noble Earl for his full and friendly reply. May I ask, as a supplementary question, whether he can ensure that in future the Ministry of Works, when they want to move bits of monuments, do not put them in one of the most obvious places in one of the most popular parks in town?
EARL JELLICOE: My Lords, I will certainly undertake to see that the noble Lord's suggestion is conveyed to my right honourable friend.

THE HYDE PARK BIRD SANCTUARY
LORD AMULREE: My Lords, I beg leave to ask the Second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether any steps are being taken or can be taken to improve the appearance of the Bird Sanctuary erected in memory of the late W. H. Hudson in Hyde Park.]
EARL JELLICOE: My Lords, my right honourable friend the Minister of Public Building and Works has been considering this matter in consultation with the Committees who advise him on bird sanctuaries and on forestry in the Royal Parks. The Committees have made recommendations for improvements to the Sanctuary area, which were accepted by the Minister last year. The work involved in carrying out the recommendations is best done in the winter. This work has recently started. The Sanctuary area is to be replanted, together with the adjacent hedge, and three plane trees overshadowing the Sanctuary are now being removed. The ponds have been repaired so that they maintain the right level of water. As a result of these measures, it is hoped to make this area of the Park more attractive and convenient to all its visitors, both winged and wingless.
LORD AMULREE: My Lords, I should like once more to thank the noble Earl very much for his kind reply and, if I may put it as a supplementary, wonder whether in future his right honourable friend the Minister would see that the sanctuary does not get into the terrible state that it got into before the work was undertaken, as I saw on Saturday morning.
LORD HURCOMB: My Lords, as Chairman of one of the Committees and a member of another of the Committees to which the noble Lord referred, may I express the appreciation of both the Committees of the ready way in which the Minister has received the suggestions in this and in a good many other matters, which are designed to maintain the full amenities of these wonderful parks?
EARL JELLICOE: My Lords, I shall be very glad to convey both suggestion and "bouquet" to my right honourable friend.

SHIPOWNERS' LIABILITY TO PASSENGERS
BARONESS BURTON OF COVENTRY: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether this country was a signatory to (or accepted) the agreement reached at the international Carriage of Goods by Sea Convention, 1924, by which it was decided to end the position whereby cargo vessel operators could refuse to accept any sort of liability and, if so, what is our position arising from the subsequent development of 1961 when, in Brussels, a Convention was drawn up to give passengers the same "rights" as goods; and if they will make a statement.]
THE LORD CHANCELLOR: My Lords, Her Majesty's Government have signed and ratified the 1924 Convention on Bills of Lading, and effect has been given to it by the Carriage of Goods by Sea Act, 1924. I should perhaps point out that under that Convention the shipowner is not liable for damage to goods by fire, unless caused by his fault or privity. In reply to the second part of the noble Lady's Question, the Convention drawn up in 1961 does not give passengers the same rights as owners of goods possess under the 1924 Convention. The liability of a shipowner is very different under the two Conventions. The United Kingdom has not signed the 1961 Convention, and no country has ratified this Convention, although it may interest the noble Lady to know that Cuba has acceded to it.
BARONESS BURTON OF COVENTRY: My Lords, in thanking the noble and learned Lord the Lord Chancellor for that reply, might I ask him if he would not agree that the fact that the 23 countries, of which I have a list here, which have actually signed this Convention (I am aware that only Cuba has ratified it) means that they are in general accord with the principles thereof? May

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I put to him one further point? Is it not true that, of the three main provisions of the 1961 Convention, the principal one states that a shipowner is liable up to a limit of £6,000 per passenger for death or personal injury to a passenger due to the fault or neglect of the carrier or his servants or agents? Would not the noble and learned Lord feel that it would be a good idea if this country could accept such a provision?
THE LORD CHANCELLOR: My Lords, the noble Lady spoke of Cuba having ratified this Convention. No country has ratified this Convention: Cuba has acceded to it. With regard to the question of the provisions of the Convention, it is true that there is a provision in the Convention enabling a shipowner in certain circumstances to limit his liability towards any individual passenger to £6,000. As, in spite of recent events, incidents at sea involving more than a few passengers are, happily, infrequent, and as the limit of his total liability under the 1957 Convention of £74 a ton may well apply, a per capita limit of £6,000 may well operate against the passengers' interests.
BARONESS BURTON OF COVENTRY: My Lords, while not being bold enough to pursue the noble and learned Lord the Lord Chancellor on matters of law, may I ask him whether he is aware that the British Maritime Law Association has informed me that in fact Cuba did ratify this Convention? I have here a letter, which I should be glad to give to the noble and learned Lord, which gives that information.
THE LORD CHANCELLOR: My Lords, I am glad that the noble Lady has that information, but it may be that the subtle distinction between accession and ratification has escaped the body to which she has referred.
BARONESS BURTON OF COVENTRY: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether, in view of recent happenings, they would be prepared to consider statutory control of passenger contracts as has already been done in the United States of America.]
THE LORD CHANCELLOR: My Lords, the question whether shipowners should be able to contract out of, or reduce, their Common Law liability is being considered. I must point out, however, that certain legal difficulties may have to be overcome with regard to the application of any legislation on this subject to foreign ships.
BARONESS BURTON OF COVENTRY: My Lords, while thanking the Lord Chancellor for that reply, may I ask him whether it is not true to say that the legislation of many countries, including most of those in Europe, and of the United States, forbids shipowners from contracting out, on grounds of public policy, from liability to passengers, but this is not the case in the United Kingdom and the Commonwealth countries? Does he not agree that this seems unfortunate?
THE LORD CHANCELLOR: My Lords, I am grateful to the noble Lady for the information she has given. I am not in a position to accept or repudiate it.
BARONESS BURTON OF COVENTRY: My Lords, may I try once more and ask the noble and learned Lord whether or not it is true that such an arrangement works perfectly in the air? Is it not true that through the International Air Transport Association limited liability is accepted for loss of baggage or loss of life by passengers? Would it not be possible to make such an arrangement for those who travel by sea? Lastly, may I ask him whether he has not seen the excellent article in the Sunday Times of January 5?
THE LORD CHANCELLOR: My Lords, I have told the noble Lady that the question of whether shipowners should be able to contract out of or reduce their Common Law liability is being considered. I prefer to refrain from answering any specific questions on the matter until the considerations are completed.
LORD STONHAM: My Lords, can the noble and learned Lord the Lord Chancellor say whether there is any difference in liability to passengers on the part of shipowners for passages booked in Britain in ships sailing under the British flag and for those sailing under foreign registration?
THE LORD CHANCELLOR: My Lords, I regret that I am not in a position to answer that question, because in each case the terms of carriage may differ according to the terms of the contract made with individual passengers.
LORD STONHAM: My Lords, can the noble and learned Lord say whether there is any difference with regard to ships sailing from British ports in relation to inspection matters for the safety of passengers whether the ships are British owned or foreign owned?
THE LORD CHANCELLOR: My Lords, that is a question far removed from the original Question I answered.

BUSINESS OF THE HOUSE
2.53 p.m.
EARL ALEXANDER OF HILLSBOROUGH: My Lords, I beg to ask a Question of which I have given Private Notice—namely, To ask Her Majesty's Government whether they will make a statement on the action they have been able to take to protect British nationals in Zanzibar.
EARL ST. ALDWYN: My Lords, with the permission of the House, my noble friend the Duke of Devonshire will answer this Question at a suitable moment after 3.30.
May I also inform the House that my noble friend Lord Lansdowne will be making a statement on the Advisory Committee on Co-operatives, also at a suitable moment after 3.30.

COMMITTEE FOR PRIVILEGES
THE CHAIRMAN OF COMMITTEES (LORD MERTHYR): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Silkin be proposed to the House as a member of the Select Committee in the place of the Lord Wilmot of Selmeston, resigned.—(Lord Merthyr.)
On Question, Motion agreed to.

CRIMINAL APPEAL BILL [H.L.]
2.53 p.m.
Order of the Day for the Second Reading read.
THE LORD CHANCELLOR: My Lords, I hope that this Bill will meet with the approval of your Lordships. Some may criticise it for going too far, but I suspect that the weight of the criticism will be that it does not go far enough. There are, I think, cogent reasons for not enlarging the scope of the Bill, and to those I will refer later. The idea that there should be power to order a new trial of a criminal case, I cannot claim to be a novel one. Between 1844 and 1905 no fewer than 25 Bills with that object were unsuccessfully introduced. When the Criminal Appeal Bill of 1907 was under consideration in another place, an Amendment was proposed, and defeated, which would have given the newly instituted Court of Criminal Appeal the power to order a new trial. Since 1907 this question has often been considered, and it is not, I think, putting it too high to say that it has been the subject of debate among generations of lawyers.
The Lord Chief Justice, in drawing attention to the lack of the power to order a new trial in the recent case of "Lucky" Gordon—a lack which he described as in many ways unfortunate—was repeating regrets expressed by his predecessors. The noble and learned Lord, Lord Goddard, advocated such a power when the Criminal Justice Act, 1948, was before Parliament, and, indeed, the power was very nearly introduced into that Bill. The Lord Chancellor of the day introduced a Government Amendment, which was accepted by your Lordships, providing for new trials. But by the time the Amendment came to be considered in another place, where opinion was deeply divided, the Government had concluded that there was not the consensus of legal opinion which could justify the change proposed, and on their Motion the Amendment was disagreed with. I spoke in that debate, and expressed my regret at its rejection.
A great deal of the difficulty that arose in 1948 occurred, I think, because the proposed power to order a new trial was not to be restricted, as in the

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present Bill, to cases where fresh evidence is received or is available before the Court of Criminal Appeal, but was to apply, too, where the Court of Criminal Appeal felt obliged to quash the original conviction because of some error in the conduct of the trial, such as a misdirection of the jury, or the allowing of cross-examination as to character where that should not have been permitted, or the wrongful admission or exclusion of certain evidence, at the original trial. There was the feeling that a convicted person ought not to stand in peril twice because of a failure in the original proceedings that was no fault of his.
May I remind your Lordships of the powers of the Court of Criminal Appeal at present when they are considering an appeal against conviction? By Section 4 of the Criminal Appeal Act, 1907, the Court must allow the appeal if they think that the jury's verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law or that on any other ground there was a miscarriage of justice. If the appeal is allowed the Court must quash the conviction and direct the entry of a judgment and verdict of acquittal. There is a proviso under which the court may dismiss the appeal if they consider that, notwithstanding some irregularity, no substantial miscarriage of justice has actually occurred. But as a matter of practice the court have applied the proviso and dismissed the appeal only where they have been satisfied that, on the whole of the facts and with the correct direction, the only proper verdict would have been one of guilty. In some cases, therefore, the appeal may be allowed and the conviction quashed even though the odds were strongly in favour of the accused being guilty.
The argument between those who advocate and oppose new trials where there has been an error by the original court is, I think, essentially this. Should there be a means of re-trying cases, so that justice may be done where a guilty man may at present get away with it; or is it paramount that the appellant should get his outright acquittal if the
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courts themselves have erred in his case, and not be put in peril a second time? My Lords, there are strong arguments on both sides. These arguments were rehearsed again in this House on May 8, 1952, when the subject of new trials was raised by the noble and learned Lord, Lord Goddard. On that occasion, however, he was more particularly concerned with the type of case with which we are dealing in the present Bill: the case in which new evidence becomes available after the original trial to throw doubt on the guilt of a convicted person. The then Home Secretary had recently ordered an inquiry into fresh evidence, including an alleged confession, in a case in which two men, Devlin and Burns, had been convicted of murder. The inquiry found that there had been no miscarriage of justice: but it was argued forcefully by the noble and learned Lord that it would have been a better procedure if, instead of the extra-judicial inquiry, there could have been a new trial in the case.
Lord Goddard's views were well supported, and not least, expressing a personal view, by the noble and learned Viscount, Lord Simonds, who was then Lord Chancellor; and a few months later he, with the then Home Secretary, now the noble and learned Earl, Lord Kilmuir, appointed the Departmental Committee on New Trials in Criminal Cases, with Lord Tucker as Chairman,
"to consider and report whether the Court of Criminal Appeal and the House of Lords should be empowered to order a new trial of a convicted person who has appealed to the Court of Criminal Appeal, or whose case has been referred to the Court by the Secretary of State, and, if so, in what circumstances and subject to what safeguards."
In May, 1954, the Committee reported unanimously in favour of a power to order a new trial, but they were irreconcilably divided about how wide the power should be. Three members, including Lord Tucker, thought that the Court of Criminal Appeal should be able to order a new trial in all cases which came before them, including, that is to say, the cases of misdirection, and so on, by the trial court. Five members, the majority, opposed a power which went beyond cases involving fresh evidence.
In recommending unanimously that the power should be available in such cases the Committee said:

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"In cases where new evidence is accepted by the prosecution and the Court are satisfied that it is conclusive in favour of the appellant, their task is, and would still be, simple—to allow the appeal, to quash the conviction and to enter a verdict of acquittal. But in many cases it is impossible to assess the value of new evidence without weighing it against evidence given at the trial. This can be properly done only by a jury who hear and see all the witnesses, including both those who gave evidence at the trial and those whose evidence has subsequently become available."
The Committee envisaged that the new evidence upon which a new trial might be ordered would be evidence admissible on appeal. They pointed out that extra-judicial inquiries might still occasionally be needed; for example, in cases in which the appellant relied on testimony which would not be admissible in evidence at a second trial, or in which there was a "confession", the genuineness of which could not be determined at a second trial, to the crime of which the appellant had been convicted.
The Bill which the Government now introduce implements the majority recommendation of the Tucker Committee. I know that we introduce it to only "two cheers" from The Times, but I feel no need to apologise either for the delay that there has been in bringing proposals before the House or for restricting the power to new evidence cases. This is a field in which there have been shown, over the years, to be strongly held and divergent opinions. And the recent interim report of "Justice", published on January 9, shows that there is still great disagreement among lawyers on this subject. It is a matter involving personal liberty, and it is one in relation to which I claim merit for caution.
We have now, I believe, arrived at a position in which there is solid support from legal and public opinion for the limited powers proposed in the Bill, and we shall, I suggest, make the most useful and assured advance if we content ourselves with those proposals. They avoid the more difficult and contentious problems raised by a general power, for a new trial will be possible only where it is in the appellant's interests, either because he has himself asked for new evidence to be heard or
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because new evidence has come to the notice of the Home Secretary and been referred by him to the Court under Section 19(a) of the Criminal Appeal Act, 1907. The Tucker Committee recommended that the power to order a new trial should be available in such a case, and this is secured by Clause 1 of the Bill, since a case so referred falls, under Section 19 of the 1907 Act, to be treated as an appeal by the person convicted.
I should also remind your Lordships that the Departmental Committee recommended that your Lordships' House should be given the same powers to order a new trial as the Court of Criminal Appeal. Since that recommendation was made, Section 1(4) of the Administration of Justice Act, 1960, has enabled this House, in disposing of appeals in criminal cases, to exercise any powers of the Court below or to remit the case to that Court. So, when this Bill is passed the House will be able, should it wish to do so, to order a new trial on grounds of fresh evidence.
Again as recommended by the Departmental Committee, the power to order a new trial will in no circumstances be exercisable where a man has been acquitted. Nor will the power be exercisable unless the new evidence is the only reason for allowing the appeal. If it is allowed partly because of new evidence and partly on some other ground, the appellant must be acquitted. If it is allowed only because of new evidence, there must still be an acquittal unless the Court are satisfied that the interests of justice require a new trial. The new trial may then be only for the offence in respect of which the appeal was allowed because of fresh evidence, or on any alternative count at the original trial on which the jury was discharged from giving a verdict. This last-mentioned provision, which is in Clause 1(2) of the Bill, covers the case in which the appellant was charged originally with alternative counts of, say, larceny and receiving. If he was convicted of larceny, the jury may have been discharged from giving a verdict on the receiving charge; under the Bill it would be possible for the Court of Criminal Appeal to direct that the receiving charge be revived and disposed of at a fresh trial.

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Clause 2 of the Bill deals mainly with technical matters consequent upon the ordering of a new trial. I need not detain the House with them now. I should like, however, to draw attention to the important safeguards in Clause 3 which deals with the sentencing powers of the new court of trial. That court, if it re-convicts the appellant, may not impose a sentence of greater severity than was imposed on the original conviction. The powers of the new court in this respect will be closely analogous to those of the Court of Criminal Appeal under Section 5(2) of the Criminal Appeal Act, 1907, which enables that Court, in certain circumstances, to substitute for a trial court's verdict a verdict of guilty of another offence and to impose a sentence which is not of greater severity than the original sentence. Neither in the 1907 Act nor in the present Bill is the concept of "greater severity" defined. It would require complicated provisions to prescribe exhaustively the order of severity of all the sentences which the new court might, in theory, impose, and some of them would be unlikely to arise in practice. The Bill provides a clear and simple principle for the guidance of the courts, and I do not think they will find it difficult to follow.
Clause 3 also contains, in subsections (3) and (4), further safeguards for the appellant who is convicted again. Subsection (3) enables him to count towards his new sentence any time which he has already served under the first sentence, and any time which he has spent in custody awaiting re-trial. Time served under the first sentence will count even though the sentence is changed from one form of custodial sentence to another. Subsection (4) entitles the appellant to count towards a new sentence of imprisonment, corrective training or preventive detention any time in custody awaiting the first trial which he was entitled to count towards such a sentence originally imposed.
I think it will commend itself to the House that we should in these ways protect the position of the appellant as to the time that he may be required to serve if he is reconvicted. His appeal will have been against conviction—or it will be because of a doubt whether he was rightly convicted that the Home
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Secretary has referred his case to the Court of Criminal Appeal—and he ought not, on that account, to find himself in peril of a longer term in custody. At the same time it would not suffice merely to revive the original sentence on a reconviction. The new evidence may, although not securing an acquital, enable the new court to take a more lenient view of the case; or the court may want to change the form of sentence on other grounds.
I commend the Bill, therefore, to your Lordships as one which offers a good and widely acceptable compromise between conflicting views; which strikes, I believe, a sound balance between the concern of us all to see justice done, and the protection which we have traditionally given to those who come before the criminal courts. I do not believe that the Court of Criminal Appeal will very often find it necessary to order a new trial; but I have no doubt that in appropriate cases the Bill will prove to have made an invaluable addition to the Court's powers.
I have endeavoured to explain the purposes of this short but important Bill to your Lordships, and I hope that it will commend itself to the House. I have no doubt that we may be criticised for not going further in this Bill. But, as I have said, it deals, in part, with an issue which has divided, and still divides, legal and lay opinion very deeply. We have gone as far as we can in conferring power on the Court of Criminal Appeal to order new trials where fresh evidence is available. So far, but as yet no further, opinion is, I think, pretty unanimous. For my part, I am happy to think that an important reform is, as I believe, likely to receive the approval of all sides of the House.
My Lords, the Court of Criminal Appeal, as I have reminded your lordships, first sat as long ago as 1908, following on the passing of the Criminal Appeal Act of the previous year. It is, of course, one of the most important courts in the country, exercising as it does an immense influence on the current administration of our criminal law. It is a melancholy reflection that of all courts it is probably subject to the heaviest pressure of business at the present time, and it is, if I may say so

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with the greatest respect to my noble friend the Lord Chief Justice, a great credit to him and to his fellow Judges that its prestige stands so high. Yet it would be surprising if through the passage of years the constitution of the Court and its procedure in the handling of criminal appeals, could not be shown to be capable of some improvement. It is our intention that the administration of the law, both civil and criminal, should be kept up to date, and that that process should take its proper place in the programme for the modernisation of Britain.
Suggestions have been made in various quarters that consideration should now be given to the organisation of the Court in the handling of appeals. I think that those suggestions deserve serious consideration, and to secure it my right honourable friend the Home Secretary and I have decided to set up a Committee to consider them, and other aspects of the problem. The question has been raised whether it would be desirable for certain classes of criminal appeals to be heard not by the Court of Criminal Appeal but by the Court of Appeal, or a division of that Court. For the criticism is sometimes made that it is wrong in theory for criminal appeals, at least those from Assies, to be heard by a court composed of Judges of the same status as those from whom the appeals lie. There are some difficulties about such a proposal, which will need the most careful examination. For example, while it may be desirable for appeals against convictions to be heard by a superior court, such as the Court of Appeal, I can see considerable disadvantages in depriving the Judges of the Court of Criminal Appeal of power to hear appeals against sentence. Whether the two classes of appeal can be satisfactorily separated is obviously a matter of difficulty, and will require the most careful and thorough consideration.
We hope to be able to announce the membership and terms of reference of the proposed Committee quite shortly. In the meantime, I am happy to inform your Lordships that at the invitation of my right honourable friend and myself, my noble and learned friend Lord Donovan has agreed to become Chairman of the Committee. My Lords, I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
3.15 p.m.
LORD SILKIN: My Lords, your Lordships will be grateful to the noble and learned Lord on the Woolsack for the manner in which he has introduced this Bill. He is quite right in saying that it will receive a welcome—perhaps a modest welcome—from all sides of the House. For my part, I regard the Bill as being very belated. A good deal of the noble and learned Lord's speech was directed to showing that this matter had been under consideration for about 120 years. It is high time, therefore, that something was done about the provision of a new trial.
Apart from the numerous Bills that have from time to time been introduced in another place, there was a Royal Commission on the subject which reported in 1879 and recommended that there should be power to grant a new trial. This has been strongly urged by a succession of Lord Chief Justices and particularly strongly by the noble and learned Lord, Lord Goddard, whom we are very glad to see here this afternoon. During the passage of the Criminal Justice Bill in 1948 a clause was inserted in the Bill in this House in much wider terms than the provision in the present Bill; but those were, of course, more enlightened days, and the clause was eventually withdrawn as being too much for another place to swallow.
Then in 1952 we had set up the Departmental Committee which reported in 1954; and I take it that the Government have been deliberating ever since then as to what course of action they should take. I recognise that, so far as the wider powers about granting a new trial are concerned, there is a good deal of difference of opinion. The Departmental Committee itself was divided—five against the wider powers and three in favour. The noble and learned Lord referred to "Justice". They have been examining the matter and, curiously enough, they also were divided, but, I think, roughly in the opposite direction: a majority were in favour of the wider powers and a minority against. The Government have taken the view that they should go no further than the view of the majority of the Departmental Committee. The noble

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and learned Lord describes it as a "compromise between conflicting views", but I should have thought it was by no means a compromise; it is an acceptance of one particular view as against another. It may be that there is no possibility of compromise between the views, but the last thing I would call this is a compromise. It is coming down quite definitely in favour of the restricted right of the Court of Criminal Appeal to grant a new trial.
I imagine that even now nothing would have been done but for the case of "Lucky" Gordon, where new evidence became available on which the jury might have come to a different conclusion, and the Lord Chief Justice and his colleagues took the view that this was eminently a case where a new trial ought to have been possible but was not under the then existing state of the law. We have experience in many countries in the Commonwealth of the way in which this is working. In Australia, in Canada, in Ceylon, in New Zealand, there is the power to grant a new trial, I believe on wider grounds than those contained in the Bill, and there has been no criticism at all, so far as the Departmental Committee has been able to ascertain, of the way in which this is working. Nevertheless, I am bound to say that I recognise the Government's difficulty when they are confronted with the report of a Departmental Committee which is so strongly divided as this one is.
On the question of the grant of a new trial where there is new evidence available, the Bill itself is quite wide and gives the Court of Criminal Appeal the greatest possible discretion, and I am very glad of that. The Court is not restricted under the terms of the Bill to cases where the new evidence was not available at the trial. But in actual practice, as I understand it, the Court of Criminal Appeal has imposed upon itself a limitation in considering what is new evidence, and has laid down that new evidence consists of evidence which the person charged could not have had available by the exercise of the most diligent care. And if, in fact, that evidence could have been available but was not called, either on legal advice or for some other ground, then the Court of Criminal Appeal, as I understand it, has
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taken the view that, because it was available at the trial, such evidence is not new evidence. The Bill as it stands is quite wide, and I hope that this self-imposed limitation of the Court of Criminal Appeal will not be continued and that the Court will feel able to regard as new evidence any evidence which, for one reason or another, was not presented at the trial.
My Lords, I take the view that the Court of Criminal Appeal should have the widest possible powers, at its discretion, to grant a new trial. In other words, I find myself very definitely on the side of the minority of the Departmental Committee and the majority of the Committee of "Justice". I do not propose to argue the matter to-day, because the case has been so excellently presented in the Report of the Departmental Committee. Anyone who wishes to see the arguments either way need only refer to the Report of that Committee; I think he will find them exceedingly well set out. I would only say that my main reason for taking the view of the minority is that, while I think it is imperative in British law that no innocent person should be found guilty, I believe that it is equally important, in the interests of the community, that no guilty person should escape, and certainly should not escape on the grounds of a technicality.
If the technicality is of a minor order and the jury would have come to the same conclusion irrespective of the technicality I recognise that the proviso to Section 4 of the Criminal Appeal Act, 1907, takes care of it. But if it is a technicality of a more important character, then I believe that the person convicted should have the chance of a new trial and should not be acquitted on the technicality. After all, justice is not a game; it is not a sport, where the guilty party, if he is lucky enough to have had a trial which is defective, escapes; and the seriousness of putting a person on trial a second time is far less grave, in my view, than the seriousness of allowing a guilty person to go free and running the risk from the point of view of the community of his committing, offences once more. So I take the view that the Government have been lacking in courage in not going the whole way and making it possible for the

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Court of Criminal Appeal, at its discretion, to grant a new trial. But I propose to develop this point further on an Amendment to the Bill. For the present, I give the Bill a welcome, and I should like to express my own personal thanks to the Tucker Committee, to the noble and learned Lord, Lord Tucker, and all his colleagues, for their excellent and informative Report—which, I may say, it has been a very great pleasure to read—and for the nearly two years of hard work which they have put into it.
3.27 p.m.
LORD PARKER OF WADDINGTON: My Lords, may I say at once how much I welcome this Bill? The power to order a new trial has, I think, been the desire of every holder or almost every holder of the office of Lord Chief Justice at any rate since the Court of Criminal Appeal was formed. Incidentally, it is to be found in almost every ground of appeal of the prisoner which begins by saying, "I want a new trial", little knowing it is the one thing he cannot get. It has, as we know, been advocated by the Committee of the noble Lord, Lord Tucker, and recently by the Committee of "justice". That nothing has been done about it up till now springs I think from the reluctance, laudable reluctance, not to refrom the law for the sake of reforming, but to make certain that what you are putting in its place is something better and something which really commands public support.
I think that the appeal, perhaps an unfortunate appeal, in the case of Aloysius Gordon did focus attention on the limited powers of the Court of Criminal Appeal. There was, I venture to think, widespread misunderstanding as to the conduct of the trial, but at least I think good has come out of it in that public attention has been focused on the limitation of those powers. It is now, I think, recognised by everyone that the Court has no power to substitute its view for that of the jury; it is solely concerned to consider whether the jury, if they had had the new evidence before them, would still have been bound to come to the same conclusion. In other words, an appellant to-day is in the favourable position that he is entitled to an acquittal not because a jury is left in reasonable doubt, but because the Court
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of Criminal Appeal cannot honestly say that the jury would not have been left in reasonable doubt. Surely, therefore, it is very much a question of referring the matter to a jury by way of a new trial. Indeed, I venture to think that such criticism as possibly there will be of this Bill is not that there is a power being granted to order a new trial, but that it does not go far enough.
As has been pointed out, it is to-day clearly still a matter of argument on both sides. It may be that the climate of opinion is moving slowly but steadily in favour of an unlimited power. But, as we have heard, in 1954 the Departmental Committee were divided 3 in favour of the unlimited power and 5 against; and the Committee of "Justice" only recently swung the other way—9 in favour of unlimited powers and 4 against. As a matter of interest, only yesterday at a meeting of the Queen's Bench Judges there were 32 Judges present including myself, and I took the opportunity, rather quickly, of sounding their reactions. Of the 32 present, 2 were against any alteration in the law—in other words, they did not want this Bill; of the other 30, 16 were in favour of unlimited powers and 14 in favour of the limited powers given by this Bill. I venture to think that those are two good illustrations of how at any rate the Judiciary are divided almost 50–50 on this point.
In these circumstances, I am afraid I belong to the school who think that half a loaf is better than none. Unfortunately, of course, it operates in only a limited area. I envisage that the number of cases where a new trial will be granted will be really rather minimal. As a matter of interest I took the year 1962. As it turned out, it was a bad year to take. In round figures, the total of all applications to the Court of Criminal Appeal was 2,600, of which 1,000 were applications for leave to appeal against conviction. Of those 1,000, 48 convictions were wholly quashed and another 25 quashed in part—that is to say, as to one of the counts. That is something in the nature of 4 per cent. But of these, not one, as it turned out—and this is why 1962 was perhaps a bad year to take—was on the ground of fresh evidence. There were four applications for the calling of fresh evidence. In four cases fresh evidence was

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called, but in not one of those four cases was an appeal allowed. I mention those figures to show that, while 1962 may have been an abnormal year, the number of cases in which the powers granted by this Bill will be exercised will be small. Nevertheless, I feel that this is a start, and when public confidence in this approach is justified, it may be possible to go further.
There is one other point. The Bill is silent—and I think rightly silent—upon the nature of the evidence which will justify the court in acting by allowing an appeal and granting a new trial. The discretion is an absolute one, as indeed it is under the Criminal Appeal Act, 1907. But it is inevitable, I venture to think, that any court that has an absolute discretion to exercise must inevitably in the course of time, if only to preserve consistency and get some degree of uniformity, exercise its discretion on well-defined lines. The noble Lord, Lord Silkin, has referred to, as it were, conditions self-imposed on the courts; and they do, and I venture to think they must, albeit preserve within those conditions a certain elasticity.
One of them is that there must be fresh evidence in the sense of its being evidence which was not reasonably available at the trial. A moment's thought will convince one that that is necessary. A prisoner cannot, for instance, keep an alibi witness "up his sleeve" and not call him, and then go to the Court of Criminal Appeal and say, "I want to call this witness". At the same time, the Court has been most careful never to define or limit in any way what it mean; by evidence not being reasonably available. Indeed, only recently we proceeded to hear evidence from the wife of a prisoner whose case was that she had attended the Court day after day to give evidence in his favour, and that by the mistake of counsel or solicitor she had never been called. We embarked on that inquiry; we came to the conclusion that the evidence was wholly incredible and it collapsed. I mention that only to show that we were still preserving the right to consider whether, if the evidence was credible, we could say that it was not fairly available.
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The second condition is that it must be relevant. That is obvious. The third is that it must be credible, in the sense of being evidence which is capable of belief. Subject to those conditions, the discretion is absolute and, as I have already said, in course of time any court exercising an absolute discretion must find itself fettered by working along certain defined lines. I would only add that those lines, those self-imposed conditions, are the ones upon which the Court of Appeal itself has always acted in civil cases.
Finally, may I say how much I welcome the proposal to set up a Committee to inquire into the constitution and working of the Court of Criminal Appeal. Naturally, we all have our own views about the Court. Inevitably I feel that, on the whole and working under considerable difficulties, it does a fairly good job; that is only natural. But I am the last person to think that the machine is ideal. Indeed, unfortunately, so many of these matters require legislation. I have for years now been advocating a number of reforms. One simple reform is that ten days is not long enough for a prisoner to put in his application for leave to appeal. if he is going to get legal advice, when he is perhaps in a prison in the North of England and his legal advisers are in London, it is impossible to get it in ten days. Unfortunately, ten days is the period in the Statute, and legislation is required to amend it.
Again as it seems to me, it is vital that after his trial a prisoner, if he cannot afford the costs, should be entitled to legal aid—to assistance from the solicitor and counsel who represented him at the trial—as to his prospects of appeal, and to have his grounds of appeal settled if there are any prospects. At the moment he is not entitled to that as of right, and he should be. That again is a matter for legislation. I mention these two matters only to illustrate the need which I feel there is to-day for an overhaul of the whole procedure of the court, to see if the machine can be made to work even better than it does. After all, times change, the climate of opinion changes, and it is nearly sixty years since the Court was first constituted.

THE REVOLUTION IN ZANZIBAR
3.40 p.m.
THE MINISTER OF STATE FOR COMMONWEALTH RELATIONS AND FOR THE COLONIES (THE DUKE OF DEVONSHIRE): My Lords, I should like to give to the House a statement which my right honourable friend has just made in another place:
"Early on Sunday morning the British High Commissioner in Zanzibar informed me that serious disturbances had broken out in the island. In view of the possible danger to British lives and property H.M.S. "Owen", which was in the vicinity, was immediately ordered to proceed to Zanzibar and arrived there that evening. She has since been standing off-shore ready to evacuate United Kingdom citizens if this should prove necessary. The Commanding Officer has orders not to intervene for any purpose other than the protection of British lives.
"A Royal Fleet Auxiliary vessel, now at Mombasa, has also been alerted so that she could be off Zanzibar within about ten hours. In addition, the frigate H.M.S. "Rhyl", was ordered to steam from Aden in the direction of Zanzibar so as to be available if needed.
"We have received assurances from Kenya, Tanganyika and Uganda that if British nationals have to be evacuated their Governments will afford such help as may be necessary.
"These measures are purely precautionary and, in the opinion of the British High Commissioner, the need for evacuation has not as yet arisen.
"In fact his latest report received this morning states that the situation is calmer and that movement in the town is now resuming though many shops remain closed. He says that all members of the British community are safe and well and in good heart.
"The Sultan left the island on board a Zanzibar ship on Sunday for Mombasa. With him on board were members of his family, members of his Administration, including certain British police officers, and about 25 British subjects. some of whom may
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already have been on the ship as normal passengers before the Sultan came on board. On arrival at Mombasa the Kenya Government felt unable to give permission to anybody on the ship to land. They explained that conditions were exceptional in the Coastal Strip, which had until recently been part of the Sultan's dominions. Thereupon the Sultan got in touch with us to ask for assistance. I accordingly sent an urgent message to President Nyerere; and he has assured me that there will be no difficulties, if the Sultan and his party wish to land at Dar es Salaam and to stay there until they can make arrangements to proceed elsewhere.
"As regards the political situation, the status of the authorities which have seized control is still rather obscure. The Zanzibar radio announced the creation of a Republic with Sheikh Abeid Karume, the leader of the Afro-Shirazi Party, as President, Abdullah Kassim Hanga as Prime Minister, and Sheikh Abdul Rahman Mohammed, known as Babu, as Minister for External Affairs. On the other hand we have just received a telegram signed by Mr. John Okelo, who describes himself as "Field Marshal of the Zanzibar Republic", asking us to recognise the "Revolutionary Republican Government." We cannot, of course, consider the question of recognition until the position is much clearer."
EARL ALEXANDER OF HILLS-BOROUGH: My Lords, I am much obliged to the noble Duke for the statement he has made on behalf of his Minister. I should like to express appreciation of the steps taken so far to ensure the safety of British nationals and, I feel sure, their general interests. It is yet one more tribute to the re-sources of even our limited Navy that it should come to the assistance of British nationals in this way. The situation is surprising—and apparently, subject to what the noble Duke says, was as big a surprise to the three other members of the Commonwealth in the vicinity, Uganda, Kenya and Tanganyika, as it appears to have been to Her Majesty's Government. I hope that the Government in the next day or two will be able to undertake to make further statements on the situation as it emerges.

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I feel it is all the more important to ask for this in view of the rather astonishing claims—at least, to me they are astonishing—recently made by the newly-styled Field Marshal. I think it would be advisable, for I am sure your Lordships' House will want to be kept posted on this matter.
THE DUKE OF DEVONSHIRE: My Lords, I shall, of course, be only too ready to make further statements as the situation develops and clarifies. I should like to associate myself with what the noble Earl says about the rôle and the work of the Royal Navy in this particular episode.
LORD COLYTON: My Lords, I am wondering whether my noble friend has sufficiently emphasised the seriousness of the political repercussions of this matter—although, of course, I think it was quite clear that something of the sort could happen as a result of what I feel must have been the premature independence of Zanzibar.
I should like to ask the noble Duke certain important questions. Is it not a fact that the individual known as Sheikh Babu, now Minister of Foreign Affairs, is a well-known Chinese Communist agent, trained in Moscow and, until recently, in Peking, and that he has been largely responsible for this coup? Secondly, is it not probable that the whole plot was hatched in Peking, with the inevitable result that Zanzibar will become the advance post of Chinese Communist penetration into Africa—a sort of Chinese Cuba threatening directly Kenya and Tanganyika? Thirdly, is it not a. fact that this Communist movement has not got the support of the whole ex-Opposition Afro-Shirazi Party of Zanzibar, but in fact has only been made possible by what I can only describe as the folly of the late Zanzibar Government in getting rid immediately of all their British police officers, on the one hand, and the intrigues of Sheikh. Babu and Messrs. Hanga and Moyo, who are the two leading, and I think probably the only leading, Communist members of the AfroShirazi Party, on the other hand? These all seem to me to be important questions, having regard in particular to the threat which this involves of Chinese intentions in regard to Africa. Is it
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a coincidence that Chou En-lai is in Africa at this particular moment?
EARL ALEXANDER OF HILLS-BOROUGH: My Lords, before the noble Duke replies, may I suggest that it would have been quite easy to put down Questions of this sort at this time from the official Opposition. I would rather deprecate any detailed statements being made in reply to such questions until the matter has been further considered and in the light of proceedings in the next day or two. I would prefer that the House should rely on the promise made by the noble Duke to keep us posted as to the situation and then perhaps to give us the information.
THE DUKE OF DEVONSHIRE: My Lords, I hope the noble Earl who leads the Opposition will be satisfied with my answer. It will be in general terms, with one exception. First of all, so far as Sheikh Babu is concerned, I do not think—and I hope the House will agree with me that this is the moment to try to analyse the political views of the leaders of this revolution. The position is still far too obscure. Nor have I any idea whatsoever—and my noble friend seems very well-informed on this—where the plot was hatched. I can say with absolute truth that neither I myself, my right honourable friend, nor anybody in our office has any idea where the plot was hatched. The only specific point I would make is this. The previous Zanzibar Government did not get rid of the British police officers. They remained on, and indeed a number of them are with the Sultan on board the vessel which is now at sea.
LORD COLYTON: My Lords, I would not contradict my noble friend, but, of course, the Commissioner of Police was removed immediately after independence, and a number of others were under notice; the whole police were certainly disorganised and demoralised. I understand that there is no question of recognising this new Government of Zanzibar at the present time. Are there any steps contemplated for preserving the lives and safety of the Arab minority in Zanzibar?
THE DUKE OF DEVONSHIRE: My Lords, if the implication behind that question is that we should send some force to Zanzibar for this purpose, the

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answer, as I said originally, is that our only interest in Zanzibar is to preserve the lives of British citizens. We must remember that, whether this is approved or not, Zanzibar is now a totally free, sovereign people and any outside interference by anybody is quite out of the question.
LORD COLYTON: My Lords, I recognise that fact, but in the event of the lives of these, I think it is, 56,000 Arabs in Zanzibar being threatened, would there not perhaps be a case for invoking the United Nations?
THE DUKE OF DEVONSHIRE: I think I may say that that is really rather another question from the one we are answering this afternoon. If my noble friend wishes to put down a Question on those lines, I shall of course be only too pleased to answer it.

CO-OPERATIVES OVERSEAS
THE MINISTER OF STATE FOR COMMONWEALTH RELATIONS AND FOR THE COLONIES (THE MARQUESS OF LANSDOWNE): My Lords, I think it might be to the convenience of the House if I now made a statement. I am sure the House will be glad to know that the Committee's Report on Co-operatives Overseas is being published as a White Paper to-day, together with a detailed statement of the Government's views on their recommendations. As your Lordships will see, Her Majesty's Government are able to accept the Committee's recommendations for improving the supply of technical assistance to co-operatives overseas, and the Department of Technical Co-operation is already taking action. My Lords, I should like to express appreciation of the valuable work done by the noble Lord, Lord Peddie, and his colleagues on the Committee.
EARL ALEXANDER OF HILLS-BOROUGH: My Lords, I am much obliged to the noble Marquess for his statement, and I should like to join with him in tribute to the Committee, and their noble Chairman, who made the recommendations. May I ask whether in all the countries which are already covered, as well as in new ones who may ask for assistance, the usual practice will be followed: whether, for example, if
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a new movement is going to be started somewhere, the Government will take steps through that Department which the noble Marquess has mentioned to, let us say, send the proper person to act as the first and initiatory registrar, and steps of that kind? I understand that the cost would then have to be paid by the particular Colony or State in each case. But if that practice is going to work normally right through those who are already receiving assistance and the new ones, I shall be happy.
THE MARQUESS OF LANSDOWNE: My Lords, as I understand it, the assistance will not be limited to any particular countries at all: it is Commonwealth and foreign countries as well. I can give the noble Earl an assurance on that point.
LORD REA: My Lords, I should like to support what the noble Earl has said for the Opposition. May I just raise one point with the noble Marquess on a matter of terminology? The word "co-operative" surely is an ordinary British language adjective, and I hope it will not be interpreted as meaning something greater or smaller than its normal sense.

CRIMINAL APPEAL BILL [H.L.]
3.53 p.m.
Debate resumed.
LORD REID: My Lords, it is very nearly ten years since Lord Tucker's Committee reported, and for my own part I do not regret the delay at all, because I am sure that since then public opinion, both legal and lay, has moved very considerably in favour of a much wider power of ordering a new trial than that which this Bill would confer. I do not recognise the statements with regard to public opinion which are made by the majority of the Tucker Committee as at all appropriate to-day. I think that if one were reassessing opinion to-day one would come to a very different conclusion. In the great majority of cases, when people are thinking about a new trial and what powers the Court of Criminal Appeal ought to have, they are thinking about cases where verdicts of guilty have been quashed on the ground of misdirection by the Judge or other error of procedure in the course of the trial.

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This Bill, much to my regret, is extremely narrow—so narrow that it hardly touches the fringe of the general question. My noble and learned friend Lord Parker of Waddington has just given your Lordships figures with regard to one year—no fewer than 48 cases in which the Court of Appeal had to interfere because of some error in the proceedings, and not a single case to which this Bill could have applied. I hope that before the Committee stage of this Bill we may have figures for the whole of the last five years, and I shall be surprised if, taking that period, the proportion of cases to which this Bill would apply would be as much as 5 per cent.—it might be only 1 or 2 per cent.—of the total number in which the Court have had to quash convictions.
My noble and learned friend said that half a loaf is better than no bread, but let us at least have a bit of the loaf and not just a crumb from the edge of it. Really, to put this Bill forward as a genuine measure of reform seems to me almost derisory, and I am sure the figures will bear that out. Certainly if no other Member of this House puts down an Amendment to widen the scope of the Bill, I will, and I understand that there is no difficulty about the competence of such an Amendment. I hope that by that time, as a result of this debate and of general knowledge, this House will show in no uncertain manner that it is not prepared to rest on this rather miserable compromise. Indeed, I would go so far as this: if this Bill were not subject to amendment I would oppose it, and I would oppose it for this reason. If it passes in the present form, it will be said for many years to come that Parliament had its chance in 1964 to make a thorough-going reform but it chose to accept this compromise; and once compromises are accepted and passed into legislation we all know perfectly well that it takes a generation before the matter is ever reopened. There is no doubt that this is a compromise. It is an illogical compromise, and illogical compromises are rarely satisfactory, and to my mind would not be satisfactory in this case. I say that it is illogical, because there does not seem to be one single reason to justify this Bill which would not also justify a Bill to provide for new trial in the case of misdirection.
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What are the considerations which one ought to have in mind in dealing with a proposal for criminal law reform? There seem to me to be two fundamental questions. The first question is: does this reform substantially diminish the chance for guilty people to escape? If this Bill is going to apply only to one case in every other year, it does not do much there. Secondly, does it increase the risk of the conviction of an innocent person? That second question, to my mind, is fundamental. Of course, there is always a risk in any trial that things may go wrong. There is always a risk—we shall never avoid it wholly—that an innocent man may be convicted. But I venture to think that the arrangements of our criminal law to-day have reduced that risk to an almost irreducible minimum, and whether it is a first trial or a second trial I think the risks are such that we really cannot hold up desirable measures because there is a risk of innocent men being convicted.
I would never subscribe to any proposal which substantially increased that risk, and it is very much understating the case to say that it is better that ten guilty men should escape than that one innocent man should be convicted; but, provided the risk of convicting an innocent man is not increased, then surely every reasonable and practicable step should be taken to see that guilty men are brought to book—and for this reason. The growing crime wave has directed public attention much more than ever before to the affairs of the criminal law, and seeing a succession of men who have been convicted by the unanimous verdict of twelve of their fellow countrymen going scot-free on a technical misdirection by the judge is a matter that does not inspire public confidence. Not only that, but it lessens the deterrent effect of the law. Who is to say whether some optimistic criminal does not say to himself, in the back of his mind, "Oh, well, even if I am convicted these people often make a mess of it, and there is quite a chance that I shall escape."? They do not think, of course, about statistics. They do not think that it is only one case in several hundred. They see a succession of cases, and they say, "Oh, well, with any luck that will be me."
I think that, unless the objections are overwhelming, we ought to try to stop

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this loophole, because, as my noble and learned friend has already said, convictions are not quashed because the Court of Criminal Appeal think that the man is probably innocent. If that were so, of course one would not want a new trial. They are quashed because, if there had been a proper direction, or if there had been a proper ruling on a question of law, then perhaps the jury might have reached another conclusion; it would not be safe to assume that they would have reached the same conclusion. But I think that few people, if any, who are at all acquainted with this matter would not be quite satisfied that the majority, at least, of those who escape at present on technicalities would in fact be convicted on a new trial on precisely the same evidence as that on which they had been convicted previously but with a better direction. As has been said, other countries have very largely adopted a much wider form of new trial procedure than this, and I certainly have never heard a whisper to the effect that they wish they had not. I should think that if one were to consult any authority who is acquainted with such affairs in any of these countries he might say, "Well, our new rule is not perfect", but he would certainly say, "It is a great deal better than what we had before."
There is another principle, undoubtedly, which is at the back of the minds of many opponents of wider reform, and it is a very important principle. That is that it is in the public interest that questions should not be litigated twice—and, so far as possible, that is right. But already there is an enormous breach in that rule in the criminal law. I do not know what is the number of cases in which the jury have failed to agree and there has therefore been a new trial, hut, as the Committee themselves recognise, whenever there is a new trial as a result of the disagreement of a jury the accused is put in peril twice. He is again subjected to all the strain, hardship, if you like, and expense (though not so much now because of legal aid)—in fact, all the difficulty involved in a second trial—and he is on a second occasion in peril of losing his liberty. But nobody has
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suggested that we ought to abolish a second trial where a jury disagree.
I think it is fairly obvious from the reasoning of the majority in Lord Tucker's Committee that they would much rather not have a second trial. They refer to a second trial in very curious language, which I think would not be accepted by most people. But if we accept that there must be a second trial where a jury have disagreed, what possible reason can there be for saying that there should not be a second trial where the first trial has proved abortive because of misdirection? There is precisely the same hardship to the accused in both cases. It does not matter a bit to him whether the reason why the first trial failed to produce a result was a disagreement of the jury or the failure of the judge to make a proper ruling. Indeed, in the case of the disagreement of the jury, the accused man can at least say this in his own favour: "Well, some of the jury must have thought that I was not guilty or there would not have been a disagreement"; whereas, when there is a misdirection, in fact all the jury thought he was guilty, although, of course, they may have been influenced by the misdirection, for which reason the new trial is ordered.
My Lords, let me make clear that I would never reopen a verdict of not guilty. Logically, of course, one should, because the very next day new evidence may turn up which shows beyond a doubt that the man was guilty after all, and it was only because that evidence was not available that the jury found as they did. But we cannot go by logic in matters of law, the criminal law in particular, and I am quite sure that neither the legal profession nor the ordinary layman would support the reopening of any verdict of not guilty, no matter how wrong it may appear to be the next day or the next month. Also, I would not be inclined to have a new trial in what I think is the very rare case of the Court of Criminal Appeal holding that a jury which found a verdict of guilty was perverse because the evidence was not sufficient to support the verdict. If the evidence at the trial was not sufficient to support a verdict of guilty, then that is an end of the matter: the Crown

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must not have a second chance. I am entirely in favour of that; but I cannot see why, in the other case, we should not be rather more logical than we are.
The Committee, after saying that this matter will arise only rarely—that might have been so ten years ago, but I do not think it is so to-day—seem to give three reasons. First of all, they refer to hardship to the accused. I have tried to point out that hardship to the accused is just as great where there is a disagreement of a jury as where there is a misdirection. Secondly, they refer to publicity. It is perfectly true that there is a risk of a jury coming with rather preconceived ideas when there has been an earlier trial, but publicity from the magistrates' preliminary hearing would, it seems to me, be a great deal worse than publicity from the possible earlier trial, and I should not attach very much importance to that.
The other reason—though they do not say so in so many words—is some apparent reluctance to entrust so great a discretion to the Court of Criminal Appeal. It is, of course, the case (and I am not sure whether this is fully realised by everybody) that this Bill is wholly unnecessary where the new evidence makes it probable that the man was innocent; because the Court of Criminal Appeal would never exercise their discretion to order a new trial if the new evidence made it clear that it was probable the man was innocent. The discretion would apply only where it would not be safe to say that the new evidence would have had no effect. In such a case the man has, in the interests of justice, to submit to a further trial instead of being acquitted as he otherwise would be. It has been suggested, I think, that it is in the interests of the accused that this Bill should be passed and a new trial granted. My Lords, it is anything but in the interests of the accused. If it were not for this Bill the man would go free; this Bill enables him to be tried again and convicted, if the evidence convinces the jury.
I must say that I find the argument in the Committee's Report very difficult to follow. If this Bill, following the Committee's recommendation, is introduced, then it is in the interests of justice, in this limited class of case, to
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neglect the doubt about the fairness of a second trial which the Committee stress in their Report. It is in the interests of justice to disregard the hardship of a double peril. I really do not see why it is in the interests of justice to disregard these matters in the very limited class of case to which the Bill applies, but not in the interests of justice to disregard them in other cases. I should have thought this Bill gives us the worst of both worlds. It makes a breach in the old-fashioned ideas which are certainly defensible, although I do not agree with them, but it makes such a small breach as to have no practical result. That does not appear to me to be a very good method of legislating.
4.12 p.m.
LORD MORRIS OF BORTH-Y-GEST: My Lords, I rise to express, although with the utmost brevity, my support for the proposal itself which is embodied in this Bill. If the course of this debate is any indication, it may well be that your Lordships will not have doubts that the proposal embodied in this Bill, unanimously put forward in the Report of the Committee presided over by the noble and learned Lord, Lord Tucker, nearly ten years ago, is one that can be commended. The only concern you may have will be whether the Bill stops short of enacting that which could with advantage be enacted. There are certain principles in the administration of our criminal law which we all firmly cherish and would wish to maintain. I cannot think that these are impaired if, in certain circumstances, the Court of Criminal Appeal can order a new trial. Our system sets itself resolutely against anything that savours in any possible way of oppression. Statements or confessions, if they are to be admitted, must be shown to have been made voluntarily, and not induced by promises or by threats. Someone under arrest awaiting trial is not to be questioned or hectored. We set ourselves against hearsay evidence; the onus is always firmly on the prosecution. All these principles are basic and fundamental.
Again, so far as possible, we wish to ensure finality in criminal trials. Section 9 of the Criminal Appeal Act,

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which gives supplemental powers to that Court, uses the words
"may if they think it necessary or expedient in the interests of justice."
The power to receive new evidence is qualified by the words "if they think fit…". As the noble and learned Lord the Lord Chief Justice has informed us, it must be necessary for any tribunal having such a discretion to give some general guidance as to the way in which such absolute discretion will ordinarily be exercised. If the defence had some evidence which they were not anxious to call, and decided to take their chance without calling it, I cannot think that it would be satisfactory if thereafter they had free rein to call such evidence in the Court of Criminal Appeal. But if new evidence is received, and if it is relevant and seems capable of belief, then the Court of Criminal Appeal, if they think that the jury, if they had heard the evidence, would still have convicted, may dismiss; at present, if they cannot say that, they must allow the appeal. It would seem to be satisfactory that the evidence should be assessed in relation to all the other evidence and should be assessed by the jury who have to hear and decide the whole case.
My Lords, when Her Majesty's Judges assemble once a year in Westminster Abbey at the commencement of the legal year one of the prayers in reference to their solemn duties uses the phrases:
"to clear the innocent and to convict and punish the guilty".
Your Lordships will note the sequence. The first is "to clear the innocent"; and Her Majesty's Judges, brought up in that tradition, can, I think, safely be entrusted with the sort of powers that it is suggested a court of Criminal Appeal might possess. Although the first—as it must be, and rightly—is: "to clear the innocent", surely the second must not be forgotten: "to convict the guilty". It is right that the guilty should be convicted. It is bad for the community if they are not. It stimulates crime if they are not.
The words used in Clause 1 of this Bill are:
"Where… it appears to the court that the interests of justice so require…"
It seems to me that if these thoughts that I have submitted to your Lordships
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have validity they apply to situations other than those in which new evidence is called. If there is some misdirection, if something has gone wrong at the trial and the Court of Criminal Appeal cannot apply the proviso, it seems to me that there must be some cases where the interests of justice require that there should be a new trial. I confess, therefore, that I, for one, should have wished that this Bill had gone further. In our system we adhere firmly to the vital principle that the utmost vigilance is to be maintained to ensure that no innocent man is ever convicted. That vital principle is in no way eroded if some procedure brings it about that fewer people are acquitted who are, in fact, guilty.
4.20 p.m.
LORD CONESFORD: My Lords, when I heard in the gracious Speech that we were at last to have a measure enabling the Court of Criminal Appeal to order a new trial, I was encouraged, but I was discouraged by the words of limitation. I wondered why the new power should be so limited. And that drove me, not unnaturally, to look at all the debates that took place when the matter came before Parliament in 1948. In the hope that before the Committee stage is reached other noble Lords may make themselves acquainted with the arguments that were then deployed, perhaps I may say that the two occasions of debate in this House in Committee were on June 7 and July 1, 1948, and that the occasion when the Amendment of this House was not adopted in the House of Commons was on July 15 of that year. As the Departmental Committee itself pointed out, the matter was again discussed in this House on May 8, 1952, on the Motion of my noble and learned friend Lord Goddard. It was no doubt as a direct sequel of that debate that the Departmental Committee, known as the Tucker Committee, was appointed, some of whose recommendations form the basis of the measure now before us.
When I saw how many noble and learned friends of mine who are Law Lords were to speak, I wondered whether I should myself withdraw, but I was encouraged by the fact that the noble Lord, Lord Silkin, another speaker not himself a Judge, has also contributed to this debate.
I should like to support most emphatically what has already been said by

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my noble and learned friends Lord Reid and Lord Morris of Borth-y-Gest. What is particularly important is that on this occasion we shall get the matter right. After all, the Statute we are amending was passed in the year 1907. Every Lord Chief Justice, from that day to this has asked that the Act should be amended to give some power to order a new trial—I think, every Lord Chief Justice, without exception. The Court of Criminal Appeal themselves have repeatedly expressed this view. Nevertheless, it has taken more than half a century for a Bill to be introduced to bring about this necessary reform.
Therefore, it is quite idle to suppose that, if we pass the Bill in the form in which it now stands, and that is an insufficient reform, we are likely quickly to get another. To get this introduced has taken more than half a century. I could understand and respect the Government decision if they said that they had considered the rival arguments in the Tucker Committee's Report of those who say that there should be only this limited right and of those who say that there should be an unfettered discretion, and had come to the considered conclusion, for the reasons which they now gave, that the majority view was right. I think that most informed opinion has come to the conclusion that the minority view is right. The Government must make up their mind. They cannot say that we should adopt one view of a certain number of those who sat on the Departmental Committee and reject the other, merely because the matter is controversial.
I agree with what was said by the noble Lord, Lord Silkin, that the expression "compromise" is not a very adequate expression to describe the choice of one set of views and the rejection of another set of views. I agree with the noble Lord, Lord Silkin, and with my noble and learned friends Lord Reid and Lord Morris of Borth-y-Gest that the views of the minority on the Tucker Committee are to be preferred to the views of the majority. I thought that, even when I first read them. What gave me the greatest reason to hesitate, let me confess it at once, was the arguments of my noble and learned friend the late Lord du Parcq, which he deployed in the debates in 1948 to which I have referred.
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Rather more than 44 years have passed since I became the pupil of the late Lord du Parcq. After I had been his pupil for a year, he invited me to stay on in his Chambers, and we were in daily association until he was made a Judge. He was my friend and there was no one whose humanity and whose learning I more respected. Any knowledge of advocacy that I acquired I owe entirely to him. But when I read those very effective speeches, I thought, nevertheless, that they contained two errors. My noble and learned friend obviously was driven to oppose an unlimited power to order a new trial by the fear that the second trial could not be a fair one, or that it would be very difficult for the new trial to be a fair one. In the course of that argument, he said, in one of those two speeches, that it would be assumed by a jury that the Court of Criminal Appeal would not have ordered a new trial unless they themselves thought that the man was guilty. I cannot believe that that is so. I think that it would be quite clear to the new jury that the Court of Criminal Appeal ordered a new trial because they considered that there was something that ought to be tried.
The second reason why I think that this fear was erroneous is the experience abroad, which is set out in the Report of the Tucker Committee and which has been alluded to in several previous speeches this afternoon. I cannot believe that if a second trial could not be fair, this fact would not have been noticed in Australia or New Zealand, or in the many other countries where juries are composed of people not so very unlike those who form juries in this country.
I agree with what was said by both my noble and learned friends, the Law Lords who last spoke, that the aim of justice is to acquit the innocent and to convict the guilty. Both of those aims are important. Of course, if it were necessary occasionally to fail to convict the guilty in order to make quite certain of acquitting the innocent, then we should have to do that, for the reasons that both my noble and learned friends have given. But if there is no reason to think that the risk need be involved, then, as was said by the Tucker Committee and also by the noble Lord, Lord Silkin, this afternoon, this matter of trying criminals is not a game, and it is

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necessary in the interests of justice itself that we should get the best result possible.
The opinion expressed in this debate so far has, I think unanimously, been in favour of a more extended right of ordering a new trial than has been provided in this Bill. As my noble and learned friend on the Woolsack reminded us in his speech, this was his own view in 1948. I suggest that the view he then held was right and has been confirmed by some very weighty opinions in the Tucker Committee's Report and by noble Lords this afternoon. My Lords, I will strongly support on the Committee stage the Amendment which my noble and learned friend Lord Reid proposes to put down.
4.28 p.m.
LORD CHORLEY: My Lords, I should like to add a few words in this debate on the side of those who, while welcoming this Bill, have felt that it does not go far enough. The noble and learned Lord the Lord Chief Justice used the old argument about half a loaf. I must say I agree very much with the noble and learned Lord, Lord Reid, especially after the statistics which the Lord Chief Justice has given us, that this is nothing more than a crumb. But surely the argument about accepting half a loaf depends on your not being able to get the whole loaf, and in this case we are entitled to have the whole loaf if that is our view about what should be done in the interests of justice and of the public. The noble and learned Lord, Lord Reid, has told us that he will give us a chance of getting the whole loaf, and I shall be glad to add my name to the Amendment he has told us he is going to move when the time comes. We can get the whole loaf if we are determined to have it, and I should have thought, on the basis of all the speeches that have been addressed to your Lordships this afternoon, it is right and proper that we should.
Commonwealth experience has been referred to. I have amongst my friends some of the most eminent criminal lawyers in Australia with whom I have discussed this problem. They had rather similar fears in the Commonwealth at one time. It is not so long since that they introduced this reform there, but, so far as I know, they are all quite
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satisfied and very glad that they did not let their fears interfere with making this reform.
I think it is most important in the public interest that men who are clearly guilty of criminal offences should not escape on the basis of technicalities. But this is what happens. It is quite right that the Court of Criminal Appeal should quash an appeal if a mistake has been made in a summing up; but it is not right that that should be the end of the matter. The case should go back to a jury of the man's fellow countrymen so that they can deal with it, as was so eloquently put to your Lordships by the noble and learned Lord, Lord Reid, on the basis of its being properly put to them. We must remember that a great deal of the criminal justice in this country is administered by not very experienced judges. A large proportion of these cases come before courts of quarter sessions, of one of which I am the chairman. No doubt in other courts of quarter sessions there are much more experienced chairmen administering the law, but summing up a case to a jury is one of the most difficult things one can imagine, and if you are not doing it often, it is all the more difficult. In my county, fortunately, we are rather law-abiding people, and it may be only once or twice in a year that I or my deputy have to sum up a case to a jury. But I have often heard chairmen of quarter sessions in districts where there is more work, agree with me that summing up a case accurately and properly to a jury when you do not do it frequently is a most difficult job.
Of course, High Court Judges, who go round on circuit all the time, have a great deal of experience and practice, but even they occasionally make mistakes. As I have said, in courts of quarter sessions quite often mistakes are made, and the Court of Criminal Appeal quite properly puts us right; but it seems to me that that should not be a reason why the criminal as from that point should escape. In a proper case the matter should be sent back—it should be in the discretion of the Court of Criminal Appeal to decide whether it should be sent back and properly dealt with.
The one argument against this is that referred to by the noble Lord, Lord Conesford, a moment ago, and it is one

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which weighed very much with Sir Hartley Shawcross (as he then was) when the clause which your Lordships agreed upon in this House was not proceeded with further in another place—namely, that there is obviously a good deal of publicity attached to a decision in the Court of Criminal Appeal; that the case goes back usually to a local jury (or that is what one would expect to happen) and, of course, it has been reported pretty well in the local papers; and that the new jury will, therefore, know that the man has once been found guilty by a jury and the case has been sent back on a technical point. I think there is something in that argument. I did not altogether agree with the noble and learned Lord, Lord Reid, that the case was clear. There obviously is the possibility that the jury might be influenced by having that knowledge, and being so influenced may feel before the case has started that the man is guilty, and in those circumstances he would not get a fair trial.
As I say, I agree that there is a certain amount of strength in that argument. But I think it could be got over—the number of these cases, as the Lord Chief Justice pointed out, is quite small—by altering the venue. Your Lordships probably know that from time to time a case arises where there is reason to suppose that local prejudice will make it difficult to get a fair trial and an order is made that the venue of the trial shall be in some other part of the country where a jury which does not know about the matter can deal with the case in a fair manner. I should have thought that there would be no difficulty in getting over this position in that sort of way. After all, it is not as if this will happen all the time. Apparently there were only 48 cases in 1962, which is quite a small number when you consider the large number of jury trials in criminal cases going on all over the country. I do not think it would he difficult to obviate this problem, which, on the face of it, seems to me to be a very real one.
It is said that it is better that ten guilty men should escape than that one innocent man should be convicted. Well, up to a point, I suppose we should all subscribe to that. But surely there comes a time when you cannot go on letting guilty men off in order that one innocent man may not be convicted.
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I think we have reached the stage at the present time when we should look at the matter more in the interests of the community as a whole and decide that this necessary alteration of the law should be carried through forthwith.
4.40 p.m.
THE LORD CHANCELLOR: My Lords, I have listened with interest to this debate. As the noble Lord, Lord Conesford, has said, this was debated in another place on July 15, 1948, when I expressed my opinion very clearly in these words [OFFICIAL REPORT, Commons, Vol. 453, col. 1603]:
"…I express my regret that it has not been accepted that the Court of Criminal Appeal should have the power"—
that is, the power which was then contemplated. That, of course, was a wider power than is now proposed in this Bill. I then went on to have regard to the course of events that took place on that occasion and on previous occasions. There have been many attempts—and I referred to them—throughout the years to try to give the Court of Criminal Appeal some power to order a new trial. So far all those attempts have failed. In 1948 the wider power met with the approval of your Lordships. It went to another place, where it was not even put to the vote, because the then Government came to the conclusion that they must ask, That this House doth disagree with the Lords in the said Amendment. The reason they did so appears in the words of the then Attorney-General if I may quote from that debate, when he said [col. 1598]:
"It now turns out that so far from there being a consensus of legal opinion in favour of this new clause, there is, in fact, very strong legal opinion against it."
He asked why it was regarded as controversial. He said [col. 1597]:
"Mainly, I think, because it does offend against a fundamental principle to which we have hitherto strongly adhered in matters of this kind, that no man ought to be put on trial twice."
That was also expressed to be a fundamental principle by, I think, Lord Simon and Lord du Parcq. Of course, there is at the present moment an exception to it where you get a new trial on the ground of the disagreement of a jury. I think that in considering this proposal one must have regard to the course of events and the failure that has resulted from every attempt throughout

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the years (and I referred, when I moved the Second Reading of this Bill to the number of Bills that have been introduced on this subject) to get agreement to the Court of Criminal Appeal's having power to order a new trial.
The noble and learned Lord, Lord Reid, made a powerful speech of criticism of this measure, and many other noble Lords expressed somewhat similar views, although, if I may say so with great respect, perhaps with not quite the same degree of force. I would say to the noble and learned Lord, Lord Reid, and indeed to the others who have spoken on the same line, that we have not heard to-day the case that can be made against this proposal, although, as I expressed the views that I expressed in 1948 and which are on record, I do not think we should ignore the fact that there are many people who think it would be entirely wrong to go further than this Bill now proposes. It is common ground, as I see it, that if the prosecution fail to secure a conviction and a man is convicted, it should not be open to the prosecution to come back and to say, "Now we have some more evidence. Please let us try this man again." Where exactly do we draw the line?
There has been a lot said about illogicality. Suppose in a particular case a man is convicted because the judge has allowed the prosecution, quite wrongly, to cross-examine as to character, or a man is convicted because there has been a misdirection. The man who appeals to the Court of Criminal Appeal is saying, "For these reasons, I have not had a proper trial. I should be allowed to go free." That has been the practice up till now, but the advocates for a wider provision say, "Oh no, although it is not your fault, although you have not done anything to bring about this result, and although you have been convicted because of this error when you might not have been if this error had not been made, we are not going to acquit you now. We are going to order that there be a new trial." One must not underestimate the major change in the administration of criminal law that that would make, and the major change in relation to a person who is at that time an innocent person.
The noble Lord, Lord Chorley, said, "Why should the criminal escape?"
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But the position is of a man who has been charged and has been convicted ex hypothesi in a case where there has been a misdirection or where something has gone wrong and the conviction has to go. He must not be treated as though he is a convicted man escaping. The question here is whether that man, who still claims to be innocent, should be put upon his trial again. That is to my mind a major question. The noble and learned Lord, Lord Reid, made some reference to the illogicality of this proposal. I should have thought that there was quite a distinction between the case where the request for a new trial comes on account of something having gone wrong in the procedure of the courts or upon the trial of the judge, and the case where the appellant himself is saying, "Please, I should like a new trial, because I have some new evidence." There I should say it is clearly right that he should have it.
I do not intend at this stage to take up your Lordships' time by debating this issue any further, but I do say with the greatest respect to the noble Lords who thought, as indeed was thought in 1948, that the power should be much wider, that one really should not ignore the fact that still to-day there is a great deal of opinion to the contrary view than that expressed in the course of this debate. The noble and learned Lord, Lord Reid, thought that a reassessment of opinion to-day would lead to a very different conclusion. I wonder whether there really are any grounds for that view when one sees that there is still a complete division of opinion in the report of the Committee of "Justice" upon this subject.
I ventured to say in my opening observations that I thought the case I should have to meet in relation to this Bill was that it did not go far enough. I was right in that. I still ask your Lordships to give this Bill a Second Reading, and I put it forward to your Lordships bearing in mind that every attempt made by your Lordships, or made in another place, to give the Court of Criminal Appeal wide powers for ordering a new trial has always failed. I move the Second Reading of this Bill with the knowledge that it has the support of the Lord Chief Justice, who has present experience and great experience of the

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requirements of the Court of Criminal Appeal.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

TRUSTEE SAVINGS BANKS BILL [H.L.]
House in Committee (according to Order).
House resumed: Bill reported without amendment; Report received.

ADMINISTRATION OF JUSTICE BILL [H.L.]
4.50 p.m.
Report of Amendments received (according to Order).
Clause 2 [The London commission areas]:
VISCOUNT HANWORTH VISCOUNT HANWORTH moved, in subsection 2(1)(d), to leave out "southwest London" and substitute "metropolitan Surrey". The noble Lord said: My Lords, this is a small Amendment, dealing with the matter of nomenclature, but it is important to local interests. On the Second Reading of the Bill the noble and learned Lord the Lord Chancellor was sympathetic to the wish of the Middlesex justices to retain the county name in the commission of peace for what was called in the Bill, "north-west London". An Amendment to this effect was agreed, the area now being referred to as the "Middlesex area". The present Amendment is suggested for similar reasons.
The south-west area referred to in the Bill comprises London boroughs 21 to 24. These are Kingston-on-Thames, Richmond-on-Thames, Sutton and Merton. With the exception of the present borough of Twickenham, which is being absorbed in the new borough of Richmond, the area lies within the Surrey county boundary. I believe that when making changes we should always try to maintain links with existing institutions and local esprit de corps, if this can be done without loss of efficiency or confusion. As the principle of doing this with the Middlesex area has been accepted, I suggest that my present Amendment is logical and should cause no difficulties. I very much hope that it will be agreed. I beg to move.
Amendment moved—
Page 2, line 29, leave out ("south-west London") and insert ("metropolitan Surrey").(Viscount Hanworth.)
THE MINISTER OF STATE, HOME OFFICE (LORD DERWENT): My Lords, my noble and learned friend the Lord Chancellor has asked me to apologise to the House for his enforced absence. In fact, most of the Amendments on the Report stage of this Bill are Home Office Amendments, and I should in any event he moving them. But there are a couple that my noble friend would have liked to deal with himself. He would, for example, have liked to deal with this Amendment of the noble Viscount (he has dealt with the matter before), but he has been compelled to go to a most important meeting. So, again, on his behalf, I offer the House his apologies.
As my noble friend has said, the object of this Amendment is to replace "south-west London area", which is the terminology used at the moment, by the terminology "metropolitan Surrey area" as a description of one of the five London commission areas. The Amendment adapts to the south-west London area the suggestion made for Essex by the noble Earl the Leader of the Opposition at the Committee stage of the Bill: that the "north-east London area" should be named the "metropolitan Essex area". My noble and learned friend resisted this suggestion, first of all on the ground that the description was too long, but principally because confusion might, and probably would, arise between quarter sessions for the metropolitan Essex area and Essex quarter sessions. My Lords, I am afraid the same arguments that my noble and learned friend used in regard to Essex apply in the case of this Amendment; indeed, more so, because, in the case of Surrey, Croydon, together with Coulsdon and Purley, which at present form a sizable area within the county of Surrey, will form part, not of the southwest area at all but of the south-east area; so that we are really getting the suggestion that we are, in fact, going to have two Surreys.
My noble friend is quite right in thinking that the Government are at one with him in wishing to find suitable names for these areas. We should prefer names rather than simply descriptions of "south-

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west", or "south-east". As the noble Viscount knows, a great deal of thought is being given to this matter, not only by Her Majesty's Government but by many other people; and not only for this area. But we find that we cannot accept a description which would be objectionable either because it was fanciful (though that does not apply here) or because it would be misleading. The objection here is under the heading "misleading". We feel that quite probably there would be a lot of muddle in the public: mind, and even perhaps in the official mind, if we had a "Metropolitan Surrey Quarter Sessions", and a "Surrey Quarter Sessions", and so on. It is not analogous, unfortunately, with the case of Middlesex, because no muddle will arise here since Middlesex will cease to exist altogether. Now that we have called that particular part "Middlesex" we shall have a Middlesex Quarter Sessions and nobody will be in the least muddled. But in this case, when a part of Surrey is going to quite a different area altogether, we regret that we cannot accept the idea of having a "Metropolitan Surrey Quarter Sessions" and a "Surrey Quarter Sessions". In view of what I have said, I hope that my noble friend will withdraw his Amendment. At the same time, I would tell him (and I say this advisedly) that we should be very pleased if he would go on thinking about this matter, because, although this idea of taking an existing name when the existing county will persist elsewhere is in our view not workable, we should like a name for this area.
VISCOUNT HANWORTH: My Lords, in the face of the noble Lord's argument, I should not wish, certainly at this stage of the Bill, to press this Amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 8 [Clerks of the peace and other officers]:
LORD DERWENT LORD DERWENT moved to leave out subsection (7) and to insert:
"(7) The Local Government (Clerks) Act 1931, except sections 4(5) and (7), 5(2) and (3) and 12, shall not apply to a London commission area or the clerk or deputy clerk of the peace thereof; and the reference in the said section 12 to the powers and duties of a court of quarter sessions under that Act shall include a reference to the powers
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and duties of a court of quarter sessions under this section
(8) The Recorders, Stipendiary Magistrates, and Clerks of the Peace Act 1906 shall not apply in relation to a London commission area."
The noble Lord said: My Lords, this is primarily a drafting Amendment. The form of subsection (7) has been recast, but the only change of substance is that the position of a clerk of the peace of a London Commission area with regard to retirement age is made clear; it is to be 65, but subject to annual renewal after that date. The re-drafting is to make that matter clear. I beg to move.
Amendment moved—
Page 7. line 26, leave out subsection (7) and insert the said new subsections.—(Lord Dement.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this is purely a drafting Amendment. I beg to move.
Amendment moved—
Page 7, line 40, leave out ("arising with respect") and insert ("relating").—(Lord Derwent).
On Question, Amendment agreed to.
Clause 17 [Administrative and financial provisions]:
LORD DERWENT: My Lords, this also is a drafting Amendment, necessary because it is intended that the Receiver should be able to use the Greater London superannuation fund for the payment of local government superannuation benefits to the staff of the inner London magistrates courts. Staff who come under the Metropolitan Police staff Superannuation Acts will be superannuated out of the Metropolitan Police Fund. I beg to move.
Amendment moved—
Page 14, line 40, after ("Act") insert ("other than benefits payable by the Greater London Council").—(Lord Dement.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this is another drafting Amendment. There are certain superannuation payments other than employers' contributions which the Committee of Magistrates may have to make, and the Amendment recognises this. I beg to move.
Amendment moved—
Page 14, line 40, after ("contributions") insert ("and other payments").—(Lord Derwent.)
On Question, Amendment agreed to.
Clause 25 [Counties adjoining Greater London]:
LORD DERWENT: My Lords, this is also a drafting Amendment to achieve consistency with the wording of Clause 2(3), of the new clause which will be introduced by the next Amendment. All three provisions perform the function, among others, of securing that relevant parts of the law relating to the administration of justice apply to particular areas. I beg to move.
Amendment moved—
Page 21, line 42, leave out from second ("of") to second ("the") in page 22, line 2 and insert, ("the law relating to justices of the peace, quarter sessions, magistrates' courts, the custos rotulorum, lieutenants, sheriffs, juries, clerks of the peace and matters connected with any of those matters").—(Lord Derwent.)
On Question, Amendment agreed to.
5.0 p.m.
LORD DERWENT LORD DERWENT moved, after Clause 25, to insert the following new clause:
The Inner and Middle Temples
". It is hereby declared that the Inner Temple and the Middle Temple are included in the City of London, and in no other area, for the purposes of the law relating to county courts, commissions of the peace, justices of the peace, quarter sessions, magistrates' courts, lieutenants, sheriffs, juries and matters connected therewith."
The noble Lord said: My Lords, this requires slightly more explanation. This clause is designed to place it beyond doubt that the Inner and Middle Temples are to be treated as part of the City of London for the purposes of the law relating to county courts, magistrates' courts, Lords lieutenant, sheriffs, juries, et cetera In mediaeval times the Inner and Middle Temples were not part of the City, but were under the direct protection of the Papal See. In later times their exact status was undefined and, in so far as they did not govern themselves, they were usually treated as part of the City; thus the magistrates of the City seem to have exercised jurisdiction there without objection. Moreover, the High Sheriffs of London and Middlesex did not exercise any functions there, while those of the City did. For county court purposes the Temples have in practice been treated as lying within the jurisdiction of the Mayor's and City of London Court. There has remained,
562
however, some doubt about the local government and judicial status of the Temples, and an attempt was made in 1959 to obtain a declaration from the Mayor's and City of London Court that members of the Inner Temple were not entitled to vote in the local elections in the ward of Farringdon Without. The attempt was unsuccessful, but it has been thought wise to clear up the position by Statute. Section 82 of the London Government Act, 1963 (and the subordinate legislation to be made under that section), clarifies the local government position of the Inner and Middle Temples, and it now seems right that the position of the judicial authorities, who in practice exercise jurisdiction there, should be similarly established beyond the possibility of challenge. In other words, we want to make absolutely clear by Statute that fact which in practice pertains and has pertained. I beg to move.
Amendment moved—
After Clause 25, insert the said new clause —(Lord Dement.)
On Question, Amendment agreed to.—
Clause 26 [General Provision for Indemnity]:
LORD DERWENT: My Lords, may I speak on Amendments 8 and 9 together? These two Amendments go together. Their purpose is to bring the staff of a part-time justices' clerk as well as those of a full-time clerk under the indemnification provisions of Clause 26 of the Bill. I beg to move.
Amendment moved—
Page 23, line 22, leave out ("and").—(Lord Derwent.)
LORD CHAMPION: My Lords, I have some little doubt about this Amendment. In every case where there is likely to be or there may be an indemnification, the person to be indemnified is appointed by a magistrates' court committee or by, I take it, a stipendiary magistrate. In this case, so far as I can see, a part-time justices' clerk may appoint anybody from his office without reference to any superior authority at all, and I just wonder whether it is quite a right thing to indemnify any member of a part-time justices' clerk's staff in this rather wholesale way.
LORD DERWENT: The position is approximately as the noble Lord has

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stated it. But, remember, this deals with indemnities under Clause 26. It is a comparatively narrow point. Clause 26 refers to the staff of a justices' clerk as persons
"appointed by a magistrates' courts committee to assist the justices' clerk".
A part-time justices' clerk, however, is usually a solicitor in private practice who employs his own staff, and the clause as at present drafted would give no indemnification at all. We think it right, in view of the fact that we have not had any scandals of the kind suggested by the noble Lord, that they must have indemnification. I believe it to be right. I do not see how they can be left out of this clause.
On Question, Amendment agreed to.
LORD DERWENT: I beg to move.
Amendment moved—
Page 23, line 23, after ("clerk") insert ("and any member of the staff of a part-time justices' clerk assisting the clerk in his duties as such").—(Lord Derwent.)
On Question, Amendment agreed to.
Clause 27 [Prerogative proceedings and acts done in quarter sessions]:
LORD DERWENT: My Lords, may I deal with Amendments 10, 11 and 12 together? Clause 27(2)(a) allows the Lord Chancellor, if he thinks fit, to indemnify out of monies provided by Parliament a justice or justices' clerk for costs awarded against him in proceedings for an order of prohibition, mandamus or certiorari. This Amendment and the next two extend the indemnification to the clerk of the peace and his staff. I beg to move.
Amendment moved—
Page 23, line 42, leave out ("or justices' clerk") and insert ("justices' clerk or clerk of the peace").—(Lord Dement.)
On Question, Amendment agreed to.
LORD DERWENT: I beg to move.
Amendment moved—
Page 24, line 7, leave out from first ("peace") to end of line 8.—(Lord Dement.)
On Question, Amendment agreed to.
LORD DERWENT: I beg to move.
Amendment moved—
Page 24, line 10, at end insert ("and clerk of the peace' includes a deputy clerk of the peace and a member of the staff of a clerk of the peace").—(Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, Section 19 of the Children and Young Persons Act, 1963, which requires a recorder to sit with two members of a juvenile court panel as assessors when he is dealing with an appeal or committal for sentence from a juvenile court, has been found not to apply to the Crown Courts at Liverpool and Manchester when they are exercising the jurisdiction of quarter sessions. We think it highly desirable that the section should apply, and it is the purpose of the Amendment to apply it. I beg to move.
Amendment moved—
After Clause 31, insert—
Assessors in Lancashire Crown Courts in appeals and committals from juvenile courts
(". Section 19 of the Children and Young Persons Act 1963 (assessors for recorders in appeals and committals from juvenile courts) shall apply to the Crown Court at Liverpool and the Crown Court at Manchester as it applies to the court of quarter sessions for Liverpool or Manchester, as the case may be, but as if any reference therein to the recorder included a reference to any judge of the Court.").—(Lord Derwent.)
On Question, Amendment agreed to.
Clause 32 [Protection of existing officers]:
LORD DERWENT: My Lords, this is a purely drafting Amendment. I beg to move.
Amendment moved—
Page 25, line 29, leave out ("Regulations under this section shall") and insert ("The Secretary of State shall by regulations")—(Lord Derwent.)
On Question, Amendment agreed to.
Clause 35 [Interpretation]:
LORD DERWENT: My Lords, this is consequential on Amendment No. 7 to which your Lordships have already agreed. I beg to move.
Amendment moved—
Page 26, line 30, leave out from ("London") to end of line 31—(Lord Derwent.)
On Question, Amendment agreed to.
Schedule 1 [The Central Criminal Court]:
LORD DERWENT LORD DERWENT moved, in paragraph 12, to leave out "in custody". The noble Lord said: My Lords, Clause 1(2) of the Bill allows a reduction in the number of sessions at the Central Criminal Court from twelve to four. This means that in future they are to

565
be longer sessions lasting up to three months. That is already in the Bill. Paragraph 12 of Schedule 1 to the Bill provides a safeguard for a person committed in custody to the court for trial in the form of a time limit within which he must be arraigned "unless the court otherwise orders". The time, in fact, is 28 days if the person is committed to the current session; it is 28 days or seven days after the beginning of the session, whichever is later, if he is committed to the next session.
At present under the Bill this safeguard applies only to persons in custody, and it is, of course, especially important that their interests should be protected. But we have also been considering, in consultation with the interested authorities, whether it would be right to apply it to a person on bail. We have to bear in mind that a considerable proportion of bail cases involve lengthy preparation, and if the "28-day rule" is applied to them there will inevitably be a number of exceptions to the rule, in that cases will not be ready to begin within the specified period. In those cases, the court will have to "order otherwise" and set down a new date for the hearing of the trial. However, while recognising that there will be these exceptions to the rule, we think on the whole that it would be right to give persons on bail as well as those in custody assurance that the Central Criminal Court will take cognizance of their case within the specified period. The Amendment has that effect. I beg to move.
Amendment moved—
Page 30, line 21, leave out ("in custody").—(Lord Derwent).
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this is a further drafting Amendment, which makes it clear that if the Central Criminal Court finds it necessary to order that the trial of an accused person shall not begin within the time limit prescribed in Schedule 1, paragraph 12, the court must make the order before the time limit has been reached. I beg to move.
Amendment moved—
Page 30, line 22, leave out ("otherwise orders") and insert ("has otherwise ordered").—(Lord Derwent.)
On Question, Amendment agreed to.
Schedule 3 [Adaptation, amendment and modification of enactments]:
5.11 p.m.
LORD DERWENT LORD DERWENT moved to add to paragraph 12:
"(3) Section 64(3) shall apply in relation to each London commission area as if for references to the county council there were substituted references to the Greater London Council".
The noble Lord said: My Lords, this Amendment deals with the provision of quarter sessions accommodation and equipment. The Greater London Council is to provide these for the London commission areas, and the Amendment makes the necessary adaptation to Section 64(3) of the Local Government Act, 1881, which relates to the equivalent duties of county councils. I beg to move.
Amendment moved—
Page 33, line 30, at end insert the said subparagraph.—(Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this, again, is a drafting Amendment. I beg to move.
Amendment moved—
Page 33, line 33, at end insert—
("(4) Section 83(4) shall not apply to a London Commission area.").—(Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this is a drafting Amendment. I beg to move.
Amendment moved—
Page 34, line 45, leave out ("9") and insert ("7").—(Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this Amendment makes it clear that expenditure out of the Metropolitan Police Fund to meet the cost of the probation service in inner London is to qualify for Exchequer grant, as does expenditure on the probation service elsewhere. I beg to move.
Amendment moved—
Page 34, line 46, at end insert—
("(2) In section 77(3)(a) the reference to Schedule 5 shall include a reference to section 21(4) of this Act.").—(Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this, too, is a drafting Amendment. I beg to move.
Amendment moved—
Page 35, line 25, leave out ("(10)(d)").— (Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this Amendment enables the usual Exchequer contribution to be paid towards the cost of indemnifying justices and their clerks under the new procedure provided in Clause 26 of the Bill as it is under the present procedure. I beg to move.
Amendment moved—
Page 35, line 26, at end insert ("and in section 27(2) the reference to functions under Parts III and IV of the Justices of the Peace Act 1949 shall include a reference to functions under section 26 of this Act").—(Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this is a drafting Amendment. I beg to move.
Amendment moved—
Page 36, line 11, leave out second ("of") and insert ("for").—(Lord Derwent.)
On Question, Amendment agreed to.
5.17 p.m.
LORD DERWENT LORD DERWENT moved, after paragraph 27, to insert:
"THE OFFICES, SHOPS AND RAILWAY PREMISES ACT 1963
28. In section 52(3), for paragraph (c) there shall be substituted the following paragraph—
'(c) premises provided and maintained for purposes connected with the administration of justice by the council of a county, the Greater London Council, a local authority or the receiver for the metropolitan police district'."
The noble Lord said: My Lords, the purpose of this Amendment is to ensure that in respect of court houses and probation buildings provided by the Greater London Council and the Receiver the provisions of the Offices, Shops and Railway Premises Act, 1963, are enforceable by factory inspectors, as is the case with other local authority buildings. I beg to move.
Amendment moved—
Page 37, line 29, at end insert the said paragraph.—(Lord Derwent.)
On Question, Amendment agreed to.
Schedule 4 [Transitional provisions]:
LORD DERWENT: My Lords, this Amendment corrects a mistaken belief
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that October has 30 days. I beg to move.
Amendment moved—
Page 41, line 2, leave out ("30th") and insert ("31st").—(Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT LORD DERWENT moved to add to paragraph 9:
"(4) A member of a juvenile court panel for one or more petty sessional divisions of a county adjoining Greater London appointed under arrangements mentioned in paragraph 8 of this Schedule shall hold office until 31st October 1967."
The noble Lord said: My Lords, the purpose of this Amendment is to keep the period of appointment of juvenile court panels for new or altered petty sessional divisions of counties adjoining Greater London in step with the three-yearly rhythm elsewhere; and a similar provision is made for Outer London by paragraph 9(3) of this Schedule. I beg to move.
Amendment moved—
Page 41, line 3, at end insert the said subparagraph.—(Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this is another drafting Amendment. I beg to move.
Amendment moved—
Page 45, line 10, leave out from ("committed") to ("or") in line 11 and insert ("to the court for trial, sentence or order or under section 5 of the Vagrancy Act 1824.")—(Lord Dement.)
On Question, Amendment agreed to.
Schedule 5 [Repeals]:
LORD DERWENT: My Lords, with the permission of the Committee, I should like to speak on Amendments Nos. 29 to 33 together. These are all part of Schedule 5. They are all drafting Amendments. They have nothing of substance in them. If no one has any objection, to save time I should like to deal with these five Amendments en bloc. I beg to move Amendment No. 29.
Amendment moved—
Page 48, line 52, at end insert ("Section 46(6)").—(Lord Derwent.)
On Question, Amendment agreed to.
Amendment moved—
Page 48, line 56, leave out ("to") and insert ("(2), (3),").—(Lord Derwent.)
On Question, Amendment agreed to.
Amendment moved—
Page 48, line 57, at end insert ("Section 91").—(Lord Derwent.)
On Question, Amendment agreed to.
Amendment moved—
Page 48, line 58, at end insert ("In section 100, the definition of 'metropolis'.
Section 115").—(Lord Derwent.)
On Question, Amendment agreed to.
Amendment moved—
Page 49, line 56, at end insert ("Section 399(2)").—(Lord Derwent.)
On Question, Amendment agreed to.
LORD DERWENT: My Lords, this Amendment preserves the statutory provision whereby a temporary metropolitan stipendiary magistrate may take the oath of allegiance and judicial oath before any of the permanent metropolitan stipendiary magistrates.
Amendment moved—
Page 51, line 26, leave out ("Section 2(3)").—(Lord Derwent.)
On Question, Amendment agreed to.

BARONY OF DUNSANY
Petition of Randal Arthur Henry 19th Baron Dunsany in the Peerage of Ireland, claiming a right to vote at the elections of Representative Peers for Ireland, read, and referred to the Lord Chancellor to consider and report upon to the House.