§ 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.
541 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.
542 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 543 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 544 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 545 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 546 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, 547 which gives supplemental powers to that Court, uses the wordsmay 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 548 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 549 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.
550 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 551 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 552 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 553 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. 554 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 555 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?" 556 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 557 requirements of the Court of Criminal Appeal.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.