§ 3.5 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Lord MERTHYR in the Chair.]
§ Clause 1:
§ Power of Court of Criminal Appeal to order new trial
§ 1.—(1) Where an appeal against conviction is allowed by the Court of Criminal Appeal by reason only of evidence received or available to be received by that Court under section 9 of the Criminal Appeal Act 1907 and it appears to the Court that the interests of justice so require, the Court may, instead of directing the entry of a judgment and verdict of acquittal as required by section 4(2) of that Act, order the appellant to be retried.
§ LORD REID moved, in subsection (1), to leave out all words after "Court of Criminal Appeal" down to and including "1907". The noble and learned Lord said: Before I come to the details of this 1091 Amendment, may I briefly sketch the present position as I see it? The position has become more and more serious, by reason of the growing number of convictions quashed by the Court of Criminal Appeal. I take the figures from the Report of the "Justice" Committee, because I do not happen to have, if such are available, official figures.
During the three years 1956 to 1958 inclusive 50 convictions were quashed, in whole or in part. During the three years, 1960 to 1962 no fewer than 171 convictions were quashed, in whole or part. That increase was not due to any change in the law, nor, so far as I am aware, to any change in the practice of the Court of Criminal Appeal. It may be due to the growing crime wave and to pressure of business—I am not in a position to say. But it shows that a great many people who have been found guilty by a jury are, in fact, going free to-day; and the reason why they are going free is not because the Court of Criminal Appeal think that they are probably innocent. As my noble and learned friend Lord Parker of Waddington said, in the course of the Second Reading debate [OFFICIAL REPORT, Vol. 254 (No. 22), col. 531] the Court of Criminal Appeal
has no power to substitute its view for that of the jury…
And I do not seek any change in that respect.
§ What happens is that, by reason of a technical error, a verdict of "guilty" is upset and the case is then at an end, because the present law directs that a verdict of acquittal shall be entered in those circumstances, irrespective of the nature of the case. When I say "technical error", I think that the great bulk of them are cases where there has been misdirection of some kind by the trial judge. There are other heads as well—for example, wrong admission of evidence—but I think that, on the whole, these are of minor importance.
§ The test which the Court of Criminal Appeal feel bound to put under present law is a very stringent test indeed. It is not whether the jury would probably have reached a different conclusion if they had been properly directed: it is much stiffer than that. It is sufficient that the jury might perhaps have reached 1092 a different conclusion if they had been properly directed. It has been put in the words: that the court must be satisfied—and that is a strong word—that if the jury had been properly directed, they would have reached the same conclusion. Therefore, my noble and learned friend the Lord Chancellor was able to say, during the course of the Second Reading debate, that convictions might be quashed although the odds were very strongly in favour of the accused being guilty. The result is, with the figures I have mentioned, that scores of guilty men are escaping to-day. And the public read and take note of that. Some people, I am afraid, think to-day that the public image of the law is becoming a little tarnished. I am not sure that I agree with that view; but if there is any substance in it, then I think that the spectacle of a stream of almost certainly guilty men escaping on technicalities is not the least of the reasons for any disrepute into which the law may be falling in the view of the general public.
§ This Bill tackles the question, but in a very limited way. As your Lordships are probably aware, it gives power to the Court of Criminal Appeal to order a new trial only if the reason why the conviction has to be quashed is that new evidence has been received since the date of the verdict. If that meant every kind of new evidence, it might go some distance—not very far, but some distance—but the kinds of fresh evidence which operate under this provision are very limited indeed; and, accordingly, it is a rare case to which the Bill will ever apply. Again quoting what my noble and learned friend Lord Parker of Waddington said on Second Reading, although there were 73 convictions quashed, in whole or in part, in 1962, this Bill would not have applied to a single one of them; and I doubt whether it would have applied to half a dozen, or even three or four, of the 171 cases in which verdicts were quashed during the three years I have mentioned.
§ The Amendment which I commend to your Lordships removes that limitation, and it would permit the Court of Criminal Appeal to order a new trial in any case in which the verdict has been quashed. But it preserves the safeguards in the Bill that the new trial 1093 can be ordered only if the court is satisfied "that the interests of justice so require". I should think that that is a fair way of limiting the scope of the Bill. The Court of Criminal Appeal is given full power in every case, and is then told: "Now you have a discretion whether you think the interests of justice require a new trial in this case or not". There has been the criticism (and I think it is at the bottom of a good deal of the opposition in the Tucker and "Justice" Reports) that this Amendment would put too difficult a task on the Court of Criminal Appeal. But this Bill, as it stands, in every case in which it applies, puts precisely that burden on the Court of Criminal Appeal. The Court must determine whether or not in the particular case the interests of justice require a new trial; and I cannot see that it is much easier to determine it in the few cases to which the Bill applies than in the other cases.
§ Surely the answer is this. It may well be that it is often a difficult task to determine whether the interests of justice require a new trial; and it is often an easy task because it is quite obvious. But we know that for centuries it has been the pride of our law that whenever there is a question of doubt the accused gets the benefit of the doubt, and I think that it would be a grave reflection on the Court of Criminal Appeal to suggest that it would not apply that well-known principle in determining whether to allow a new trial in any particular case. It is said by some critics that the Court of Criminal Appeal might use this power quite often. I should not be surprised if it did, because often it is perfectly plain that the accused has escaped on a mere technicality: and although one cannot say with 100 per cent. certainty that the next jury will convict him, there is a high probability that they will; and justice cries out for further steps to be taken.
§ I would put it in this way. A great deal of the opposition to my Amendment (I do not know that there is going to be any in this Committee this afternoon; there was none on Second Reading, although I agree that there is a good deal outside) is based on fears of what might happen if the scope of 1094 the Bill were extended. Why cannot we look at experience in other Commonwealth countries? Throughout the greater part of the Commonwealth, English law applies, and the habits, methods and atmosphere in legal circles are very much like our own. I am bound to say that the only Commonwealth country I know at all well—and I do not claim an intimate knowledge of it—is Australia. Perhaps I should not have been, but I was surprised to find how similar Australian legal affairs are to our own. I should think that we are fairly safe to look at experience in those Commonwealth countries with a view to learning from it.
§ Ten years ago the Tucker Committee received a great deal of evidence from Commonwealth countries and digested it in a very full Appendix to their Report, Appendix V. They received evidence from no less than seventeen Commonwealth jurisdictions. With regard to three of them, there was no answer at all to the question in which one is principally interested here. The main criticism (there is a column headed thus) made is of the use made by the Court of Criminal Appeal of the power to order a new trial. There are fourteen cases where an answer is given, and in ten of those fourteen the answer is: "No criticism". In the other four the criticisms are slight. With regard to British Columbia and Manitoba, the only criticism was that the power to order a new trial led to some delay and expenditure; and with regard to Ontario, the only criticism was that it tended to make the court too strict[...]though I do not think the Court of Criminal Appeal in this country could be much stricter than it is to-day.
The only whisper of criticism came from South Australia where some fears were expressed. But I would meet them in this way. The Committee took evidence from the Chief Justice of the High Court in Australia, Sir Owen Dixon, than whom there could be no higher legal authority, and in paragraph 21 of the Report they say:
that is, Sir Owen Dixon—
told us that he had never heard any criticism in Australia, either lay or legal, of the power of the Court of Criminal Appeal in each State and of the High Court of Australia to order a
new trial in a criminal case or of the way in which the power is exercised, or any suggestion that an accused person does not get a fair trial on the second hearing.
That is pretty impressive. But ten years have passed since then, and all these jurisdictions have had ten years' more experience of ordering new trials and the power to order new trials. I should suppose that not only scores, but probably hundreds, of new trials have been ordered during that period, if one adds up these seventeen jurisdictions.
§ Surely, if there had been any reason or suspicion for thinking that they have gone too fast, or that this was a bad power to confer, those ten years would have disclosed some criticism. But I have never heard of any, and, much more impressive than that, the organisation "Justice", which is well known to your Lordships, has wide international connections and a strong Committee of that organisation has just published a Report, and I am quite sure that if there had been any suggestion from any part of the Commonwealth that there were second thoughts about the wisdom of conferring on the Court of Criminal Appeal this power to grant a new trial, "Justice" would have heard of it. But there is not a whisper in the Report of any criticism having arisen in recent years. All that the opponents do in the "Justice" Report is to repeat the criticism that appears in the Tucker Report.
§ I would put it this way. After all that experience, there seems to me to be a very heavy burden on those who still say, in spite of the success of this working abroad, that it would not work here. After all, the object of the law is to deter offenders, and I believe that deterrence depends far more on certainty of punishment than on the severity of punishment. If that is so, then any loophole through which any considerable number of offenders escape must gravely weaken the deterrent effect of the law. Therefore, it seems to me that we must use every fair means to stop up this growing loophole. The sole question is: Are the means which we suggest fair? By "fair" I mean fair to the accused. I do not think any of your Lordships would wish to support any proposal which does not appear to be fair to the accused.1096
§ What are the objections? First, it is said we must not put the accused in peril twice; we must not try him twice—as if it were a novelty in English law to put the accused in peril twice. It is done every day. Every time a jury disagrees the prosecutor is entitled—and nobody can stop him—to prosecute the accused man again. He is in peril once; the jury disagree; he is in peril again at the second trial, and nobody says that is unfair. I cannot see what difference it makes to the accused whether the first trial was abortive because the jury disagreed, or whether the first trial was abortive because the verdict of the first jury has to be quashed on a technicality. From the point of view of the accused, the objections to a second trial are every bit as strong. I would venture to ask anyone who opposes this Amendment: what is the difference fundamentally, from the point of view of fairness, between allowing a new trial where the jury have disagreed, and allowing a new trial where the first verdict has been quashed?
§ There is this additional safeguard under this Amendment. As I have said, under the ordinary procedure there is no provision that the second trial cannot take place if there is any unfairness in that; nobody can stop the prosecutor. But under this Amendment there is a very good protection. It is only in cases where the Court of Criminal Appeal think that justice so requires that a second trial will be ordered. Indeed, it seems to me, if I may say so without disrespect to those who take a different view, that the only difference is this. The case of retrial after a disagreement is familiar and accepted. The case of a retrial after the quashing of a verdict is novel and suspect. I really cannot see any other difference.
§ It is sometimes said, "You would not get a fair trial on a second trial." Foreign experience does not support that. It depends fundamentally on what one's view of a jury is. If one thinks that a jury are just a lot of sheep, then perhaps it is unsafe. But a modern jury is not composed of sheep. A modern jury is a very fair-minded and intelligent body. It is not very well suited, I agree, to deal with technical questions. But these are not technical questions. These are questions of human credibility and human behaviour, and there is no better 1097 tribunal for determining a matter of that sort fairly than a jury. I do not believe that any jury, if they had heard that this was a second trial or even if they had heard something about the first trial, would be seriously bothered about that.
§ The real argument against this Amendment, and the only one which was put forward at the Second Reading debate, is that we ought to wait for a consensus of opinion in the legal profession before we move. It would be very nice if we had a consensus of opinion. But have we always waited in the past for a consensus of legal opinion before we have introduced legal reform? I would think that almost every legal reform in the last 150 years has been introduced before there was a consensus of opinion in the legal profession, and I do not believe that anyone has ever regretted having proceeded too soon. Nobody has ever taken that view.
§ I am delaying the Committee too long, but finally I should like to say this. Some of your Lordships may have in your minds that although you would support this Amendment in principle, passing it might imperil this Bill. I do not see why it should, because if the Bill goes to another place I should have thought that Members there would want a debate on this question, whichever way this Amendment goes this afternoon. But suppose there were something in the idea. Supposing it would make the Bill a little more difficult to get through. What is the harm in that? What do we gain by passing this Bill at all? If this Bill was going to give us any considerable amount of experience, then by all means let us pass it and take advantage of the experience. But if we are going to get only about one new trial a year out of it in the next five years the amount of experience that this Bill, passed in its present truncated form, would yield is negligible. It would take a whole generation before we got any experience from this Bill which was worth talking about. On the other hand, if the Bill is lost, either by reason of our passing this Amendment or otherwise, I believe it is quite certain, whatever Government are in power, that we shall see another and a better Bill within the next five years.
§ If this Bill is passed in its present form, on the other hand, the opponents of change will be able to say: "Parliament has accepted a compromise. Let 1098 us see what happens." "Wait and see" can be a potent argument in circumstances of that kind. I should think myself that it would take very much longer to get a full reform if this Bill were passed in its present form than if it were not passed at all. Of course, what I would hope for would be that the Bill should be passed in its amended form. But second best, to my mind, is that it should not be passed at all. I beg to move.
Page 1, line 6, leave out from ("Appeal") to ("and") in line 8.—(Lord Reid.)
§ 3.29 p.m.
§ LORD SILKIN
I rise to support the Amendment. The noble and learned Lord has moved this Amendment in such convincing terms, and so deployed every possible argument that can be put in favour of it, that I do not propose to endeavour to deploy any further arguments. I rest content on the legal case put forward by my learned leader on this occasion. I should like, first of all, to explain to the Committee that we on this side are not making a Party issue of this matter. Every one on this side of the House will vote on the Amendment, if it goes to a vote, as I hope it will, entirely as he thinks right, and I should hope that the same will apply to the other side. This is not a Party matter and I do not think anybody in this Committee should be subjected to a Whip telling him how he should vote on a matter of his kind.
The noble and learned Lord has dealt with the two main objections to the Amendment and I should like to say just a word about them. The first objection was that it is undesirable that people should be put on trial twice for the same offence. I agree that it is, and this is one of the main objections which have been raised to widening the scope of this Bill. But let us consider what are the alternatives. If I may say so, with all deference, I do not go all the way with the noble and learned Lord in his analogy of where a jury has disagreed. I think that one can go a little too far in analogies.
I will admit that it is undesirable that a person should be put on trial twice for the same offence; but if you look at the alternative, what is it? It is that a 1099 person who has been convicted by a jury will have his conviction set aside, even though he may be guilty, because the Court of Criminal Appeal have no power to order a new trial. Undesirable as it may be that a person should be put in peril twice, I should say that it is more desirable that a person should be put on trial twice for the same offence than that a guilty person, or a probably guilty person, should be released. That is the choice before us. It is, if you like, a choice of evils; and I should say that the greater evil is that the guilty person should go unpunished. Therefore, I should be prepared to accept the fact that in certain cases a person may have to undergo the awful experience of having a trial a second time.
The other objection that has been stressed, and stressed very strongly, is that there is a danger of unfairness in the second trial, particularly in notorious cases where the evidence has been published in the popular Press and will be in the memory of the jury who, it is said, will no doubt be biased when they come to hear the case. But this is no new thing. If we accept that, then we have to deal with the question of hearings before the magistrates' court. At the magistrates' court, generally speaking, the whole of the case against the accused is deployed; all the witnesses are there; the case is presented in full and published in great detail in the Press; and very often the accused person reserves his defence. Therefore, the jury which is subsequently convened has heard the whole of the case for the prosecution and none of the evidence for the defence. Nevertheless the case proceeds, and we know that in a reasonable proportion of cases where a jury has any doubt, in spite of all this, the accused person is found not guilty.
Like the noble and learned Lord, I have a very great faith in the British jury. I know how conscientious they are. They will spend hours and hours in deliberating on their verdicts before they come to a decision. It is in the British character to try to be fair and just; and I should say that the very fact that they know that a case has been heard before, will induce them to be extra careful in giving their verdict. Moreover, they will have a summing-up 1100 from the judge, who will warn them of the danger of allowing their minds to be influenced by what they have heard before and by what they may have read in the Press; as, of course, he will do in most cases even where there is a first trial. He will also warn them that they should give the accused person the benefit of any doubt. I am convinced that this fear that the accused will not get a fair trial is unfounded.
We then come to the question whether we should lose the Bill if this Amendment is carried. Here I should like to remind the noble and learned Lord on the Woolsack of a statement he made on another occasion, when he told us that if we were to press a certain Amendment "we shall lose the Bill". I refer to the Peerage Bill.
§ THE LORD CHANCELLOR (LORD DILHORNE)
With great respect, I do not think I have ever said anything so positive as that.
§ LORD SILKIN
That is not a positive statement—that we are in danger of losing the Bill. I think the noble and learned Lord will remember that he did not say positively, "We shall lose the Bill", and I do not suppose he will say it to-day; but that there was the danger of losing the Bill. Well, we did not lose the Bill. In fact, it was carried by so big a margin in this House that another place accepted our Amendment; and I hope that history will repeat itself on this occasion. My noble friend Lord Morrison of Lambeth is saying what a pity we did carry the Amendment. I will not go into that; I do not think any of us foresaw all the consequences of what we were doing. After all, the Commons are free agents in this matter.
The noble and learned Lord on the Woolsack reminded us of the Amendment which was carried on the occasion of the 1948 Bill—a similar Amendment to this. It was carried in this House and it then went to another place. The other place rejected the Amendment; we did not press the matter; and the 1948 Act was passed without the benefit of this Amendment. I see no reason why, if the Commons do disagree with us eventually in their wisdom, or lack of wisdom, the Bill should not come back to us and leave us to decide whether we want to press this Amendment or not. But I think 1101 that the other place ought to have the benefit of the considered views of this House. After all, what is the purpose of this House if, in dealing with an Amendment, we are going to consider what the other place may say if we express our views as we feel them? I hope we shall have the courage of our convictions.
In conclusion, I should just like to say this: that we have a choice here of acting in accordance with what we consider to be expedient or doing what we think is right. What is expedient is always a matter of doubt; of what is right there can be no doubt. I would ask the Committee to decide this matter on the basis of what they think is right.
§ 3.39 p.m.
§ LORD PARKER OF WADDINGTON
It would be much easier for me, if I felt the moment opportune, to support this Amendment. Not only do I find the speeches that have already been given, and will be given hereafter, most persuasive, but my personal views have always been that the Court of Criminal Appeal ought at some time to have these wider powers. Yet I am firmly convinced that we ought to reject this Amendment, for this simple reason: that I am quite satisfied in my own mind that the wider powers incorporated in the Bill do not as yet attract wide support, at any rate outside this House. It is said that lawyers have been divided. Lawyers have been divided, I believe, even in the same family. They were divided in 1954. They were divided in the Committee of "Justice" of this year. And, as I said on Second Reading, perhaps most significant of all, those who have to administer the powers that are given—namely, those who from time to time sit in the Court of Criminal Appeal—are almost equally divided.
If I may correct one matter of detail of figures which I gave at the last Reading, I said that out of 32 Judges present 16 were in favour of what is now the Amendment and 14 in favour of the Bill as drawn. In fact it has been pointed out that it is doubtful whether 32 Judges were; it was probably only 30; but the figures of 16 and 14 remain. And those are the men who man the Court and have got to administer the Act.
Not only that, but it is a division of opinion that gives rise to very strong feelings. It is indeed difficult for those 1102 who hold the one view to appreciate the strength of the argument of those who hold the other. That is the position amongst lawyers. It is true, as my noble and learned friend Lord Reid said, that legislation does not wait for a consensus of opinion of lawyers, but I venture to think that the division that exists to-day is something of which the House should take note. Unfortunately—and I repeat, "unfortunately", having regard to my own personal views—there is not a sign that others, that is other than lawyers, have advanced any further than they have been in the past in favour of the wider powers. And if I am right in that, I think that no one can gainsay that there is a real risk, if not a real danger, that yet one more attempt to enlarge the powers of the Court of Criminal Appeal will come to nothing.
I am not a politician. I am one of the unfortunate people who man that Court, and I think it would be lamentable if by asking for the wider powers we in that Court ran any risk of losing such powers as are in the Bill as drafted. The powers in the Bill command, I venture to think, almost universal support, and if we fail to get those powers it seems to me inevitable that those of us who man that court will have to wait, not twenty years but maybe a hundred years or more before anybody ventures to make the attempt again.
May I just get into proportion one thing arising out of what my noble and learned friend Lord Reid said. He referred to the 73 cases disclosed in the "Justice" Report where last year convictions were quashed, the suggestion being that there 73 guilty men went free on technicalities. I should like to get that matter into proper proportion. Of those 73 only some 50, I think, or 51 had their convictions wholly quashed. If experience in other countries which already have these powers is of any assistance, it would be in only 75 per cent. of those cases, say some 36 in number, that the court would order a new trial; that is because in many cases it is clear that there has been such a mistrial that a retrial will not put the matter right. Of those 75 per cent. or, to take the figures on this basis, of those 36, again on experience in the Commonwealth, only half would be convicted on the retrial. In other words, it is not a case of 73 guilty men going free, 1103 but at most half of 36, namely 18. I mention that only to get it into proper proportion.
It is true that those who support this Amendment perfectly frankly face the possibility that the Court of Criminal Appeal should have no powers of this sort at all. It is said that their application would be so limited that it just is not worth while. I would say a word about that. It is true that on Second Reading I, perhaps rather rashly, said that half a loaf was better than none, and, with some justification, I was corrected and it was suggested that all the Bill gave was a mere crumb. I venture to think it is something in between: that maybe with the powers in the Bill as drafted we are getting the hard crust. Figures are often deceptive, but I have been into the figures again, and over the last five years the powers in the Bill would have applied to only something like four cases, or perhaps one a year.
But I venture to think that that does not give the true picture. Many are the occasions to-day, when we have no powers to order a retrial, when if fresh evidence is produced we ask that the matter be referred to the Home Secretary, for the reason that in that way a full inquiry can be made, whereas under the powers in the Bill the whole matter can be fully investigated in the new trial. Again I venture to think that if there are those powers there will be many more applications than in the past. To-day a prisoner is advised that his chances of having a conviction quashed on the grounds of fresh evidence are indeed remote. But if and when the Court has power to grant a retrial many prisoners who want a retrial, as they do, will not hesitate to put forward that evidence and apply to the Court.
Over and above these considerations, I think there is one vital matter which falls to be considered. No court can function properly that does not command wide public respect, and if the Court of Criminal Appeal cannot do what everyone in the street feels they must be able to do in order to do justice—namely, when a man asks for a new trial on fresh evidence, he should not be deprived of an opportunity of having the verdict of a jury in the light of that 1104 evidence—then such a Court can no longer command public respect. It is in those circumstances that I do ask your Lordships to reject this Amendment. I would rather reject it and have the limited powers at this stage than risk losing everything, whether the risk be small or great. After all, once we have the limited powers, then I venture to think when public confidence is gained in the administration of the powers by the Court and when the time is ripe and thought opportune, it will be possible to enlarge those powers. Indeed, it is a matter which I venture to think the new Committee which it is proposed to set up under the chairmanship of my noble and learned friend Lord Donovan might themselves consider.
§ 3.50 p.m.
§ VISCOUNT SIMONDS
I am disappointed and distressed at what the Lord Chief Justice of England has said in regard to this Bill. But I am, and for ever have been, an optimist, and being an optimist I hope that in due time reason may prevail, and that it may prevail even among those dissentient members of the Queen's Bench. So far as reason is concerned, surely the case for this Amendment is overwhelming. The arguments that have been put forward from time to time are trite and well worn, and if I repeat anything that my noble and learned friend Lord Reid or the noble Lord, Lord Silkin, have already said I take some comfort from the fact that I recognise a great deal of what I myself said twelve years ago in this House.
In this respect, I should like to tell your Lordships a little bit of history which reflects no credit upon myself. When the then Lord Chief Justice of England, Lord Goddard, introduced a Motion in this House in which he advocated a reform of the law just in the form in which this Amendment would provide, it fell to me to reply, since I then occupied the place on the Woolsack which the noble and learned Lord the Lord Chancellor now so much more amply fills. I gave my blessing to Lord Goddard's Motion, but had to say that it was impossible for legislation to be introduced. Then I took a false step, for I thought that I might strengthen the hands of the reformers 1105 by appointing a Committee which would investigate and report upon this particular question.
The Committee did report, but, most unfortunately, by a majority they advocated reform only in the limited form which is embodied in this Bill. I was sadly disappointed by that, but I was encouraged by the fact that the three members, the minority of the Committee, who reported in favour of the larger measure of reform were the three members of the Committee who had much the widest experience: Mr. Justice Travers Humphreys, in regard to whom it can be said that nobody had a larger experience of the administration of the criminal law; the noble Lord, Lord Tucker, who presided, and Judge Bass. All of those were in favour of the view which I thought and hoped would prevail generally.
In that state of circumstance, I, for one, do not for a moment criticise the Lord Chancellor because he has adopted just the compromise which that Committee advocated. I cannot help venturing the opinion that the Lord Chancellor himself, in his personal view, shares that of the Lord Chief Justice, and he is moved to this compromise by the spirit of expediency. I want just to say how foolish, if I may say so with respect, this compromise really is. Let me contrast the two cases. Under this Bill as it stands, a man convicted of some crime and appealing on the ground that there is fresh evidence available will be entitled, if the Court of Criminal Appeal think fit, to a new trial. In such a case the fundamental rule that a man is not to be put in peril twice is forgotten altogether—you do not regard it. If the same man being convicted, appeals on the ground that evidence has been wrongly admitted or wrongly rejected, the Court of Criminal Appeal can do nothing. They may not order a new trial because that would be to put him in peril twice. Could there be greater nonsense than that? Of course, it is always said—and it is a trite enough saying—that the law is life, not logic. But I should like a little logic introduced, and that seems to me to be the most illogical thing that any Bill ever had.
I want to say one more word—here I am repeating, I think, what my noble and learned friend Lord Reid said. 1106 Those of us who have sat in this House for many years, as I have, and indeed those who have sat in another place, know how much of our legislation is based on guesswork. We see an evil and we seek to remedy it. But it is guesswork whether the remedy will be any better than the evil. We argue a priori; we legislate in the dark. Here, on the other hand, we have a great body of experience upon the particular matter upon which we now seek to legislate. What happens? The majority of the Committee who voted against the larger measure of reform wholly disregarded it. They did not say "They are wrong"; they did not say "The circumstances are different"; they just paid no attention to it at all—and that in face, as I say, of the widespread evidence throughout every part of the world which used to be marked on the map in red—everywhere. They disregarded it altogether. They disregarded the testimony of Sir Owen Dixon, to my mind, if I may say so with great respect, the wisest Judge in the Commonwealth, upon whom, to the great pleasure of us all, the Order of Merit was recently bestowed. They disregarded him altogether. I regard that as a most extraordinary state of affairs. Why should we not accept experience and legislate accordingly?
There is just one other point that I should like to make because it has not been alluded to. I have heard the fear expressed that we may have a sort of continuous, never-ending proceeding, such as one sometimes hears about in the United States of America. There is no apprehension of that whatsoever. Our system is entirely different. There is no confusion of Federal and State legislation, which gives rise to so much trouble there. And in order to make the matter quite clear, the Amendment provides that a man shall not be re-tried more than once. There is no possible danger of that prolongation and multiplicity of proceedings which leads to so much abuse in the courts in the United States.
One last word. The courts of criminal appeal have to administer justice, and justice according to the law. So many people, moved, as I think, by false sentiment, think that justice has to be done 1107 only to the accused person. There is justice to him, and there is justice to the community of which he is a member; and to let loose a guilty man upon some technical ground, and not to put him in peril a second time seems to me to be rather nonsense. So although I am always unwilling to vote against my old friend the Lord Chancellor, in this case I will vote for the Amendment, and I shall trust that the Lord Chief Justice of England may eventually bring his colleagues to a sense of reason.
§ 3.59 p.m.
§ LORD CONESFORD
As I have put my name to the Amendment I should like to add a few words in support of it. I think that noble Lords in all parts of the Committee will agree that there are two questions which we should consider: first, what are the merits of this Amendment? Secondly, ought we to vote in accordance with the merits? Let me take the first point first. In the speeches that have been made there has been no dispute whatsoever on the merits. The Amendment, considered as such, has the support of my noble and learned friend the Lord Chief Justice. Considered as an Amendment he thinks it right, but he thinks that a vote for it would endanger the Bill. Having heard three such eminent lawyers as my noble and learned friend Lord Reid, and the other noble and learned Lords who have agreed with him, I think it would really be superfluous to say much on the merits. I would only say this. If one refers to the rival arguments of the Tucker Committee, who were divided by 5 votes to 3 against the wider powers which this Amendment would grant, I agree entirely that the three had the better of the argument. And I agree with my noble and learned friend Lord Simonds, of course, about the great eminence of the minority.
But we can get more up-to-date information than that, because the Committee of "Justice" have issued a quite recent report. They came to the conclusion that the minority view of the Tucker Committee, which is embodied in this Amendment, is the view which ought to prevail; and they came to that conclusion by a majority of 9 votes to 4. It is interesting to note that that majority of 9 included 1108 the noble and learned Lord, Lord Gardiner, who now enriches the ranks of this House, and Professor Goodhart, the eminent editor of the Law Quarterly Review, whose authority in the law and whose experience of the law in many countries are so well-known.
I should like to quote one paragraph of the report of "Justice". Paragraph 17(f) says:The courts hearing criminal appeals in Australia, Canada and New Zealand all have the power to order a new trial. Lawyers in these Commonwealth countries have been consulted, and the substance of what they say is that the Bar accept that the power to order a new trial is desirable and beneficial, that it works well, and that their experience gives no ground for thinking that the fears which have been expressed about it in England are valid. These views have been formed after nine years more experience than those countries had at the time of the Tucker Committee. New trials also exist in India and Eire.I thought that it was worth reading that paragraph to remind the Committee that evidence from foreign countries and the Commonwealth, already strong at the time the Tucker Committee reported, is now stronger still. For those reasons I propose to say nothing further about the merits of the Amendment.
I wish now to address myself to the perfectly simple question: ought this Committee to vote in accordance with the merits? I have had fewer years' experience in this House than some, but I think there is a general presumption in both Houses that, when there is a Division, one ought to vote in accordance with the merits. Let me deal with one of the objections of my noble and learned friend the Lord Chief Justice, who thought that this might endanger the Bill. I can see no earthly reason why it should. I believe the Bill, if we pass this Amendment, can only be endangered by the conduct of Her Majesty's Government. But the noble and learned Lord, the Lord Chief Justice, talked about legal opinion and lay opinion. There has never at any time been any evidence as to what lay opinion was. Even in the debates of 1948, in both Houses, everybody who took part was a lawyer. It was a legal discussion.
I agree with the estimates of lay opinion made by the noble and learned Lord, Lord Reid. I think lay opinion is very much worried by the prevalence of crime and the immunity of 1109 criminals. If this House solemnly, and against the advice given by its legal Members, were to vote on an Amendment not in accordance with the merits, I do not believe it would favourably impress lay opinion. I think that it would have precisely the opposite effect. The noble Lord, Lord Silkin, with whose speech I was in general agreement, could have made an even stronger case when he was speaking of what might or might not endanger the Bill. When he gave the example of the Peerage Bill, that, of course, was a Bill which came from the House of Commons. We knew what the view of the House of Commons was and we inserted an Amendment which they had rejected—and, notwithstanding that, it did not endanger the Bill at all.
But this is a measure which has never been to the House of Commons. It comes to us, and we have no idea what the House of Commons thinks about it. We do not even know what the House of Commons thought on this particular matter in 1948. There was a Division in this House, and the reform of the law which this Amendment embodies was carried in this House by a good majority. But when it went to another place the Attorney General of the day advised the House not to agree with the Amendment. There was a resolution to that effect, but there was no test of what the House of Commons thought about it in the Division Lobby. And it was only one provision in a Bill dealing with a great number of different topics. Indeed, if my memory is right, that is one of the reasons why nothing of the sort had ever been included in the Bill as first introduced, and was one of the reasons used at various stages by the then Attorney General.
Those of us who trouble to attend this House fairly regularly, and give the best consideration we can to the measures which come before us from time to time, really work fairly hard and try to improve them. I do not think we are entirely unsuccessful, and from a considerable experience of the House of Commons—for which I have the greatest respect—I would say that the House of Commons deserves this House so to operate; and certainly so to operate in a measure brought before it which has not previously been to the Commons at all, and, above all, 1110 when the measure is a legal Bill and we have unanimous advice on the merits from the Law Lords. It would be a very strong thing indeed, it seems to me, if we took a view on the merits which contradicted the view that has been put to us by the Law Lords and by others in the recent report of "Justice"; and still more should we be making a mistake if, taking the view that the merits are with this Amendment, for some obscure reason we hesitated to vote in accordance with those merits. It seems to me that the noble and learned Lord, Lord Reid, and the noble Lord, Lord Silkin, are completely right about what would happen in another place, and that my noble and learned friend the Lord Chancellor may make a guess about the opinion of another place—but it will be as much a guess as the guess of any of us.
This is of course a controversial subject, but it is not a controversial subject as between the Parties. There is some controversy inside each Party, but controversy is not a reason for avoiding a decision on the merits; it is an argument for deciding where the merits lie in the controversy. If this House passes this Amendment on the advice that we have heard from Law Lords, I think not only that we shall be doing what the House of Commons wants, in the sense that Members there wish us to return the Bill in what we consider the best form, but that it is a view of the merits with which they may well agree. But suppose for the moment that they did not. What would there be to stop them from changing the Bill back into the form which they prefer; and it would then be for this House, as I think was pointed out by the noble Lord, Lord Silkin, to decide whether or not to insist on its Amendment. I would ask noble Lords in all quarters to make up their own minds on the merits of this Amendment and, if they agree that the Amendment ought to be supported on its merits, they should not hesitate to back that view in the Division Lobby.
§ THE EARL OF SWINTON
I want to intervene for only just one or two moments; not to argue or repeat what has been said about the merits of this Amendment, but as a very old Member of this House who has had in both Houses 1111 pretty long experience of piloting Bills and also Standing Orders. If I may respectfully do so, I should like to venture to say what I believe is the duty of this House on this occasion. The merits I am not going to argue. I will only say that this is not just a lawyers' Bill; this is a Bill in which every citizen of this country has as much interest as the lawyer, and, if I may respectfully say so, as much right to have an opinion and to express that opinion.
As has been said, there is nothing Party in this. The noble Lord, Lord Silkin, said that he hoped that people on both sides of the House would vote on what they thought were the merits. But now what is the duty of this House in a case like this? We are, I think, in a very representative position in this way. We have of course, as has been said, and as is obvious, the greatest legal talent that could be found anywhere. But I think we also have a reputation, acquired certainly over many years past, which stems from both the speeches and the actions of all three Parties in this House—particularly in regard to matters which are not matters of political controversy—for facing objectively the arguments for and against a particular course; for discussing them as Parliament, the place where we talk, should, in the fairest and most unprejudiced way that we can, and then arriving at a conclusion. I believe that it is that quality in this House which is going to make this House last, which is the value of this House. That being so, I think this House would weaken its position, would be failing to do what I believe is its duty in a matter like this, if each of us did not go into the Lobby to vote in accordance with what he believed to be the merits of this matter which affects all of us, and what he believed to be right.
I would only say, in conclusion—and I say this not without some experience of having indeed led this House—that that being the position as I see it, and as I believe most of your Lordships will see it, I hope my noble and learned friend the Lord Chancellor will feel able to say (he will give us what advice he considers right) to all of us, "I am not going to put the Whips on." Obviously, if the Government have a strong case 1112 and a strong conviction, then they should put their Whips on and even risk defeat by their followers, but there is nothing of that in this matter to-day. I hope, therefore, that my noble and learned friend will say that we can vote as we please in this matter. I do not know that it makes very much difference whether he does or not, because your Lordships are not a very amenable pack of hounds. But I think it would be fairer, and I think it would be better, and then the other place will have what is the best considered view this House can send it on a matter which can be disposed of very rapidly when it gets to the other place.
It may well be that it will not come back here except to receive the Royal Assent, but if it does there is no earthly reason, as I see it, why the Bill should be lost. I hope that the Lord Chancellor, who now understands this House so well, will do what I believe the whole House would wish him to do.
§ EARL ALEXANDER OF HILLSBOROUGH
May I intervene just to say this as an individual? We on this side of the Committee are entirely in favour of a free vote, and I have no quarrel with that. But I think it would be wrong if I let it be assumed that no one on this side has a case against the Amendment. I would not have been feeling quite so strongly against it, and I would not have spoken at all—although I entered into my first discussions with my noble friends a week or two ago on the views which are held by numbers of my friends in the other place—but for some of the remarks of the noble and learned Lord, Lord Reid, and but for one particular passage in the speech of the very respected noble and learned Viscount, Lord Simonds, to-day. I did not like the reflection in Lord Simonds's speech upon the capacity of a representative House, representing the electors, even to formulate and pass legislation. I thought that was a grave reflection upon the other place, and in that respect I did not like it.
I must say that, when I listened to the repeated instances that were put by the noble and learned Lord, Lord Reid, I thought they did not strengthen the case which he otherwise argued so very successfully. I could not find any quarrel with the manner in which my noble 1113 friend Lord Silkin, who very honestly believes in the Amendment, spoke. But from those points of view, although I do not want to argue the legal merits of this case at all, I am very concerned as an individual Member lest views which have been expressed to me in other places and in this House on this Amendment were likely to go against the best interests of defendants in the Courts.
§ 4.20 p.m.
§ THE LORD CHANCELLOR
I was very glad to hear my noble friend Lord Swinton point out to your Lordships that this is not a lawyers' Bill, and that laymen have as much interest as lawyers. Indeed, those who may have to face the prospect of facing charges in the dock have, of course, the greatest interest of all. What I am saying here, of course, and the point I want to make, is that this Amendment raises an issue of the greatest importance affecting as it does the liberty of individuals. It is easy for my noble friend Lord Conesford to take the view that the merits in this argument are all on one side. There are many who think that the merits—and I shall refer to this later—lie well on the other side. Your Lordships have heard the arguments put forward in support of the Amendment; and that powerful speeches have been made in support I should be the very last to deny. None the less, I propose to invite your Lordships to reject this Amendment if it is pressed to a Division.
I naturally regret not being able to agree with my noble and learned friends who have spoken so strongly in favour of this Amendment. As I said on Second Reading, the views of lawyers on this question have been divided over the years. My noble and learned friend Lord Reid, in the course of his speech on Second Reading, expressed the view that, if one were reassessing opinion today, one would come to a different conclusion from that at the time of the Tucker Committee's Report. I must confess that I see no basis for that conclusion. The Committee of "Justice", to which the noble and learned Lord referred, was divided on it; and, as my noble and learned friend Lord Parker of Waddington told your Lordships today and on Second Reading, at a recent Judges' meeting sixteen were in favour of an unlimited power such as the 1114 Amendment proposes, and fourteen were in favour of this Bill. So that about half the Queen's Bench Judges were of the view that to give the Court of Criminal Appeal unlimited power to order a new trial would be wrong. Their views, moreover, are not based on any assessments of expediency, on political considerations or on what might happen in one House of Parliament or in the other. The views of that half of Her Majesty's judges are based on the merits.
It is the case that, both in to-day's debate and in the debate on Second Reading, your Lordships have been fully informed of the arguments for this Amendment, but little has been said so far of the arguments against it. My noble and learned friend Lord Reid touched upon them. He adopted the practice which we so often adopt in the course of debate—that of taking a point which tells against your own argument and dealing with it. Nevertheless, I venture to suggest, with the greatest respect to him, that he did not put before your Lordships the substantial nature of the arguments that can in fact be put forward by those who oppose the proposal that the Court of Criminal Appeal should have this unlimited power. The subject has been so discussed over the years that it really is not possible to advance any very new argument, but I feel that I should remind the Committee of the arguments which have been so advanced, and tell your Lordships the reasons why I now propose to ask you to leave the Bill as it is.
In these days, when the incidence of crime is high, anything that will increase the possibility of bringing the guilty to justice has its appeal; and it is upon that basis that the noble and learned Lord, Lord Reid, argued the case for this Amendment. He told your Lordships the figure of convictions that have been quashed in recent years, and suggested to your Lordships that that meant that scores of guilty men were escaping to-day because of technical errors and misdirections. It may well be that scores of guilty men escape conviction to-day, for it has to be recognised that a number of those who are brought before the courts and who have committed offences escape conviction; and the argument put forward to-day is that that number might be 1115 reduced if, instead of quashing convictions, the Court of Criminal Appeal had unlimited power to order a new trial. But, of course, many of those who are not convicted, but who have in fact committed offences, escape conviction because their guilt cannot be proved to the satisfaction of the jury with the certainty that our law requires. None of your Lordships, however, would suggest, on that account, that the standard of proof required should be reduced so that the number of convictions should be increased, for that would mean that the risk of an innocent person's being convicted would also be increased.
I ask your Lordships to bear in mind that in the forefront of the argument put forward in support of this Amendment is that, if it were carried, it would lead to these scores of guilty men who are to-day escaping justice because of technical errors at their trial being convicted. In the course of his Second Reading speech, my noble and learned friend Lord Reid said the same thing. He said [OFFICIAL REPORT, Vol. 254 (No. 22), col. 542]:…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".With that statement I entirely agree: such a situation does not inspire public confidence in the administration of the law. At the same time, it really should not be assumed that when a conviction is quashed, on the ground of misdirection, or on any other ground, a guilty man goes free. It may well be that it is an innocent man who is having his conviction quashed, and that he would never have been convicted if it had not been for the technical error or the misdirection. What one has to consider here is not only the question of putting on trial for a second time a man who may be guilty but also the risk of putting a man who may have been innocent from the beginning through the ordeal of having to stand trial twice.
If the Court of Criminal Appeal is satisfied, in a case where there has been misdirection, that, on the whole of the facts, and with the correct direction, the only proper verdict a jury could return is one of guilty, it can now under the proviso to Secton 4 of the 1907 Act dismiss the appeal, notwithstanding the error or misdirection. So it 1116 cannot be said that unlimited power to order a new trial is required to prevent those whose guilt is clearly established from escaping justice as a result of a technical misdirection. The power to order a new trial would surely be exercised only in cases in which the proviso could not be applied, when the guilt of the accused was not so clearly established that it could be said that the only proper verdict of a jury, properly directed, would be "guilty"—that is to say, in cases in which the jury at the first trial might, if properly directed, have returned a verdict of "not guilty", and where on the second trial there is a possibility that they may do so.
I apologise for spending so much time on this point but I think it is important to recognise that this unlimited power is not necessary for cases where there is no doubt about the guilt of the accused. It would be used only where the guilt of the accused was not clear. The question for consideration, therefore, as I see it, is not whether this power should be given to prevent persons clearly guilty from escaping justice, but whether it should be given to give the prosecution a second chance of getting a conviction.
The opponents to this proposal are many and, I venture to suggest, distinguished. The original Criminal Appeal Bill introduced into the House of Commons contained a provision to enable the Court of Criminal Appeal to order a new trial. It was rejected by the House of Commons and the then Lord Chancellor, Lord Loreburn, said:I think there is a great deal to be said for the action of the Commons, because it approaches the confines of torture to put a man on trial twice for the same offenceThat was said in 1907, when the Commons had rejected from the Criminal Appeal Bill proposals to enable the Court of Criminal Appeal to order a new trial. Those were the views of the then Lord Chancellor.
It is, of course, the case, as the noble Lord, Lord Reid, reminded us, that where a jury disagrees, the accused may be tried twice for the same offence. It it is also a possibility where a venire de novo is granted owing to the first trial being a nullity. But the cases in which that happens are very few; and it really is not right to say it is done every day. If I am correctly informed about the 1117 law of Scotland—and this Bill does not apply to Scotland—there is no power at all of any form of re-trial in Scotland.
§ THE LORD CHANCELLOR
Because of the "not proven" verdict, may be. Then there is the point made by the noble Lord, Lord. Reid, that there was no difference between a new trial when the jury disagreed and a new trial under the exercise of the power given by this Bill. I venture most respectfully to disagree; for surely it is one thing for a new trial, however disadvantageous it may be and it is an exception to the general rule—to take place on a disagreement. If the fact emerges and it comes to the knowledge of the jury at the second trial that the man has been tried before, it is absolutely certain that that jury will somehow get to know that the first jury disagreed. They will not tend to be affected against the accused by the fact that the first jury were unable to come to the conclusion that the charge was not proved beyond reasonable doubt.
What about the position where a man is tried for the second time, and tried after conviction, and where the Court of Criminal Appeal has said it is in the interests of justice that he should be tried the second time? May not the second jury be prejudiced against that man, if they learn those facts? May not the very ordering by the Court of Criminal Appeal of a second trial of a man who has already been convicted once lead some people to suspect that at least it was the view of the Court of Criminal Appeal that he was guilty? Indeed, one can use the phrase that the Court of Criminal Appeal would never exercise this power except where they thought it was in the interest of justice. Would they ever consider it to be in the interest of justice to order a new trial of someone whom they thought, on the evidence, appeared to be innocent? I am not certain myself that if you had this power in the wide form it is now asked for that it might not operate seriously to the prejudice of the accused at the second trial when that second trial took place.
If this Amendment is carried and the power is exercised, it means in every case that the accused, whether he has done what he is charged with or is 1118 innocent, is submitted to a very great ordeal. The second trial must be bad enough for the man who has committed the crime; it must indeed approach the confines of torture for the man who has been innocent from the beginning. And if this Amendment is carried, a new trial may be ordered in every category of case on any ground that the Court of Criminal Appeal thinks is right in the interests of justice. Under the Bill as it stands it will be ordered only where fresh evidence is available. It is quite another thing, so it seems to me, that the court should have power to grant a new trial and submit the accused to the ordeal that that involves when something has gone wrong at the original trial, either as a result of the conduct of the prosecutor, a wrong ruling as to the admissibility of evidence by the judge, or a misdirection in the summing up.
There are some, I do not doubt, who would feel it very wrong if a person was tried for a second time on a charge of capital murder because the judge had made a mistake or the prosecutor had erred. I saw a case recently reported in The Times to which I should like to refer. Three men had been charged with capital murder. The appellant to the Court of Criminal Appeal was convicted of manslaughter. The only evidence against him was a statement he had made to the police after having a private talk with his father. As the father had got up to leave him, he had said to his son: "Put your cards on the table and tell them the lot.… If you did not hit him, they can't hang you." Police officers were at the other end of the room when this was said. His conviction for manslaughter was quashed because the judge had failed to ask the jury to consider whether the words uttered by the father amounted to an inducement to the accused such as to render the statement inadmissible as not being made freely and voluntarily. I do not know whether, if at that time the Court of Criminal Appeal had the power which this Amendment now proposes to give them, they would have ordered a new trial. They held there was a misdirection. They might have ordered a new trial because here was a statement which was a complete confession; and if they had, I must say I think many people would have thought it wrong that, after 1119 being tried for capital murder, that man should be tried again.
Nor, I must confess, do I see any way in which conditions could be prescribed as to the exercise of the power. The Tucker Committee also in their Report said they could not see any way in which any limitation on its exercise could be defined. If it is justifiable to exercise this power in the case of a charge of burglary or theft it must also be right to use it in other cases. In deciding whether or not to order a new trial, the decision of the Court of Criminal Appeal cannot be affected by the Court's estimate of the public reaction. One does not know, of course, to what extent such a power, if given, would be used: but the report of Justice shows that it was the view of a retired Registrar of the Court of Criminal Appeal—and I quote—that:if it had had the power the Court would have ordered new trials in at least three quarters of the cases in which it had to quash the convictions.Three quarters of the cases in which it had to quash the convictions! That view may be right or it may be wrong but it shows what a substantial change in the administration of the law and what a substantial alteration in the position of the individual who is faced with charges the carrying of this Amendment would bring.
In this country we pride ourselves, rightly, on the fact that in the administration of the criminal law justice should be swift and final. Recently to that end we passed legislation designed to secure that there should not be a long interval between committal and trial. Ordering a new trial must mean a departure from this principle. It may be that in some countries the same importance is not attached to justice being swift, and that in those countries, so long as it can be felt that justice is ultimately done, there is no public reaction against a long time—it may be years—passing between the time a man is charged and the ultimate disposal of the case. But I am sure that that is not the case here.
The views of those members of the Tucker Committee who were opposed to this proposal are expressed on pages 14 and 16 of their Report. If I may summarise them, they recognised that the disadvantages of the present system lie 1120 in the fact that the Court of Criminal Appeal is occasionally obliged to allow an appeal in circumstances which result in a guilty man going free—and I stress the words "occasionally obliged". They pointed out that this difficulty had arisen only rarely; and I believe that that is still true to-day. The same members went on to say that, if this difficulty had been of frequent occurrence, they would have expected the Judges to be united in support of the grant of new powers. And if my noble and learned friend Lord Reid was right in suggesting that, because of the lack of this power, scores of guilty men are escaping justice to-day, then I, too, should have expected unanimity, or substantial unanimity, among Her Majesty's Judges of the Queen's Bench Division. But the Judges were divided then, at the time of the Tucker Report, as indeed they are now.
The Tucker Committee majority went on to say that in their opinion this change would make a serious inroad on the principle that justice should be swift and final. They said:Any provision for appeals necessarily involves derogation from the principle of finality, but we should regard any further degoration as a misfortune which would be justified only if the need for it were established by clear and conclusive evidenceAnd even, now, I venture to suggest, the matter has not been established by clear and conclusive evidence. The members also thought that there would be serious practical difficulties. They thought that the prolongation of criminal proceedings might be unfair and oppressive to the appellant. In most cases, they said, the accused would be kept in custody while awaiting the second trial, and they could not forget that the accused would have to undergo a second trial on account of some irregularity in the first for which he was not responsible. They also expressed doubts whether the second trial would be a fair one. It is worth remembering that it was their view that the jury in the second trial would almost certainly learn that the accused had been convicted at the first one, and they expressed the view that the risk that the new trial would be prejudiced in advance would always exist.
I do not think that one can dismiss these views lightly. One cannot say that the merits all lie on one side, as my 1121 noble friend Lord Conesford rather suggested. Among others who held those views at the time of the Tucker Committee's Report, one should perhaps bear in mind, was the Director of Public Prosecutions, and there was a curious division in the Tucker Committee, all the Judges on the Committee taking one side and all those who did not hold judicial office, and who formed the majority, taking the entirely contrary view.
The Report shows that Lord Simon was opposed to the Court's having power to order a new trial, except where the appellant satisfies the Court that further evidence is available and asks for a new trial on that account. My noble and learned friend Lord Shawcross opposed the proposal and, if I understood correctly the speech of my noble and learned friend Lord Kilmuir in another place on the debate on the Criminal Justice Bill in 1948, he, too, was against it. No-one can suggest that those views were held solely on account of expediency and that these men did not quite clearly believe that, for the reasons I have put forward, the step we are now being asked to take was wrong. I thought it right to remind your Lordships not only of the views of the opponents of these proposals but also of the names of some of them who hold these views just as sincerely as those who have put forward this proposal.
In my belief, the conflict of opinion really depends upon which of two important principles one regards as of the greater importance. One principle, which we have heard mentioned more than once to-day, is that it is in the public interest that the administration of justice should secure that the guilty are brought to justice, even though it may mean a second trial. The other is the principle that justice should be swift, certain and final. Those who favour this proposal take the view, it seems to me, that the first principle is more important than the second. Those who oppose this proposal, it seems to me, feel that the second principle should not be eroded any more than it has been already by the first. We are dealing here with a very important question affecting the liberty of the individual and the administration of justice in this country. I do not feel in the least degree apologetic for bringing in this Bill, with its limited 1122 purpose, despite the criticisms that have been directed at it. In my belief, when one is dealing with matters affecting individual liberty, it is right to proceed with some degree of caution.
Here, I think, there is now a substantial unanimity in the view that the Court should have power to grant a new trial on fresh evidence. It may well be that this power will not be exercised in a very large number of cases. That is a matter of speculation: I am not affected by that argument. As my noble and learned friend Lord Parker of Waddington indicated, the fact of the Court's having this power may serve a useful purpose, not only when the appellant himself asks for a new trial, on the ground of fresh evidence, but also when it is ordered in place of a reference to the Home Secretary for inquiry.
I am not going to advance any argument to your Lordships based on expediency, or on speculation about what may happen in another place. I am putting the argument before your Lordships on the merits, at least as I see them. There is a very real conflict, and I do not think that it is confined to lawyers. I believe that there are many laymen who think it wrong to put on trial a second time a man who might be innocent—and that is inherent in this proposal. If we accept that, I think that it is right to confine this Bill to what is substantially agreed upon. I would just add this further comment. When this power comes to be used, experience may show that the fears I have expressed, which are held in certain quarters, as to the possibility of a second trial being prejudiced by the first, are not well founded. Then it may be that we shall get agreement on a further step forward. But now, surely, it is wrong, and one simply should not ignore the sincerely held objections of those who oppose this proposal.
I reminded your Lordships on the Second Reading debate of the number of attempts made before and after 1907 to secure the power to order new trials in criminal cases. Every single one of those attempts has failed, including the attempt in 1948. Nowadays, as I have said, there is substantial agreement on what this Bill contains, but no agreement to give the Court unfettered power to order a new trial whenever they think 1123 right. I ask your Lordships to support the view that one should not now seek to proceed further when it is clear that among the Judges, in legal circles and, I believe, elsewhere there are many responsible people who think it would be utterly wrong to do so. I regret very much not being able to agree with the views of my noble and learned friend Lord Reid and many other of my noble and learned friends, but it is for those reasons that I feel it my duty to ask your Lordships to reject this Amendment.
§ LORD REID
May I just say a few sentences? On one thing I agree with my noble and learned friend the Lord Chancellor, and that is when he says that this Amendment ought to be considered on its merits. Now that we are agreed about that, it clears a lot out of the way. There were two main reasons given. One is that this proposal is wrong in itself; it was wrong twenty years ago, and equally it will be wrong twenty years hence. The argument on whether it is right or wrong does not depend on whether a lot of people or a few people agree. If it is wrong, it is wrong; and if your Lordships think it is wrong, then you will vote against the Amendment. But, as usual, most of the argument does not turn on whether it is wrong in itself, but on fears as to what might happen if the Amendment were passed.
I was a little surprised, I am bound to say, that my noble and learned friend went back to fears expressed in 1906 by his eminent predecessor, Lord Loreburn. Of course people had fears in 1906. Nobody had the foggiest idea how this was going to work, and it was very proper to express fears then. It was reasonable, but barely reasonable, to express fears in 1948 and 1954, because, after all, the experience that had been gained abroad before that, although considerable, was not overwhelming. But, surely, although what is right or wrong does not move with the times, what it is justifiable to fear does move
§ with the times; and if we cannot accept the advice of these Commonwealth countries after all this time, are we never to learn?
§ I hope that I misheard my noble and learned friend, but I rather thought he was saying that conditions in those Commonwealth countries are so different that we really cannot put ourselves on a level with them.
§ THE LORD CHANCELLOR
I did not say that, or anything like it, and I hope that my words will not be interpreted as saying that. What I did say was that in some countries—and I had in mind particularly the United States—they do not attach anything like the same importance as we do in this country to trials being swift, certain and final.
§ LORD REID
I hope that nobody will ever accuse me of putting forward the United States as a model for legal procedure. Of course, I am doing nothing of the kind. I am talking solely about Commonwealth countries. Surely my noble and learned friend is not going to say that the experience of the Commonwealth in this matter is worthless. In the end he comes back to his principle that justice should be swift, certain and final. That was the reason which was put forward and strongly maintained against having a Court of Criminal Appeal at all. They said that justice should be swift, certain and final. But those who saw a little further than a mere matter of words said: "It sounds very nice, but it is wrong. We must have a Court of Criminal Appeal, although that destroys the certainty and the finality of the trial and destroys a good deal of the swiftness." If we go one step beyond it and find it is a good thing, why not go two?
§ 4.56 p.m.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 54; Not-Contents, 55.1125
|Aberdare, L.||Burton of Coventry, B.||Croft, L.|
|Addison, V.||Chorley, L.||Cromartie, E.|
|Alexander of Tunis, E.||Clwyd, L.||Crook, L.|
|Ampthill, L.||Coleraine, L.||Eccles, V.|
|Atholl, D.||Conesford, L. [Teller.]||Elliot of Harwood, B.|
|Attlee, E.||Crathorne, L.||Forster of Harraby, L.|
|Gardiner, L.||Merrivale, L.||Selkirk, E.|
|Goddard, L.||Meston, L.||Silkin, L. [Teller.]|
|Grenfell, L.||Milverton, L.||Simonds, V.|
|Guest, L.||Molson, L.||Spens, L.|
|Henderson, L.||Morris of Borth-y-Gest, L.||Stonehaven, V.|
|Hobson, L.||Morrison of Lambeth, L.||Strathclyde, L.|
|Hodson, L.||Pearce, L.||Summerskill, B.|
|Hurcomb, L.||Rea, L.||Swanborough, B.|
|Iddesleigh, E.||Reid, L.||Swinton, E.|
|Lambert, V.||Robertson of Oakridge, L.||Upjohn, L.|
|Lindgren, L.||St. Davids, V.||Williams, L.|
|Listowel, E.||Saltoun, L.||Williamson, L.|
|Ailwyn, L.||Dundee, E.||MacAndrew, L.|
|Alexander of Hillsborough, E.||Falkland, V.||Margesson, V.|
|Alport, L.||Ferrers, E.||Massereene and Ferrard, V.|
|Auckland, L.||Fortescue, E.||Newton, L.|
|Balerno, L.||Goschen, V. [Teller.]||Parker of Waddington, L.|
|Balfour of Inchrye, L.||Greenway, L.||St. Aldwyn, E. [Teller.]|
|Bessborough, E.||Hanworth, V.||Sandford, L.|
|Bethell, L.||Hastings, L.||Sandys, L.|
|Bossom, L.||Hawke, L.||Sandwich, E.|
|Brecon, L.||Horsbrugh, B.||Scarsdale, V.|
|Burden, L.||Howard of Glossop, L.||Shepherd, L.|
|Cholmondeley, M.||Jellicoe, E.||Somers, L.|
|Denham, L.||Lansdowne, M.||Strange of Knokin, B.|
|Derwent, L.||Latham, L.||Stratheden and Campbell, L.|
|Devonshire, D.||Lawson, L.||Suffield, L.|
|Dilhorne, L. (L. Chancellor.)||Long, V.||Teynham, L.|
|Dormer, L.||Lothian, M.||Wakefield of Kendal, L.|
|Douglas of Barloch, L.||Lyle of Westbourne, L.||Yarborough, E.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ Clause 1 agreed to.
§ Remaining clauses and Schedules agreed to.
§ House resumed: Bill reported without amendment; Report received.