§ 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 521 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 522 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: 523In 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 524 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.
525 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 526 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 527 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 529 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 530 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 531 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 532 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 533 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.
534 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.