COMMONS AMENDMENTS (Hansard, 2 June 1964)

§ LORD DERWENT

My Lords, I think it would be for the convenience of the House I were to outline the broad effect of the various Amendments with which I am about to invite the House to agree. Then perhaps I might move them en bloc, and if, at the end, there are any questions that any noble Lord wishes to raise on the Commons Amendments I will do my best to answer them. I hope that a brief explanation will make sufficiently clear the purpose and effect of the Amendments made in another place.

Amendments Nos. 1 and 2 on the Order Paper make a limited extension in the offences for which an appellant may be retried if a new trial is ordered by the Court of Criminal Appeal. Under Clause 1(2), as originally drafted, the appellant could be tried either for the offence of which he was convicted at the original trial, and in respect of which he was appealing, or for an offence with which he was charged in an alternative count in respect of which the jury, having convicted him on the first count, were discharged from giving a verdict. The Amendments now add a third category of offence—namely, any other offence of 383 which he could have been convicted at the original trial on an indictment for the offence of which he was actually convicted and in respect of which his appeal has been allowed.

Suppose, for example, that the appellant had been indicted and convicted of felonious wounding. On that indictment he could have been convicted of the lesser offence of unlawful wounding. When he appeals it may appear to the Court of Criminal Appeal that, taking into account the fresh evidence, any new trial should be for the lesser offence. The Amendments permit the new indictment to be framed accordingly. Amendments Nos. 6 and 7, which go with Nos. 1 and 2, make parallel provision in Schedule 1 in respect of new trials by court-martial.

Amendment No. 3, which makes an addition to Clause 2(3), deals with the costs of the appellant in the proceedings leading up to the new trial. The position before the Amendment was as follows. Through the normal operation of the Costs in Criminal Cases Act, 1952, the Court of Criminal Appeal could, at its discretion, give the appellant, on ordering a new trial, the costs of his defence at the original trial and at the appeal; and the court of re-trial could, if it acquitted the appellant, give him the costs of that trial. But the court of re-trial had, on acquitting, no power to give him the costs of the earlier proceedings. It seemed to the Government that while the Court of Criminal Appeal might have good reason, before the new trial, to decline to give costs, the matter might appear in a wholly different light after the trial, and that the new court of trial ought therefore to have discretion to give him the costs of all the proceedings, first trial, appeal, and re-trial. This is what this Amendment does.

Amendment No. 4 stops a small gap in Clause 3(3), which deals with the computation of any custodial sentence that may be imposed if the appellant is again convicted on re-trial. The original wording of the clause had the effect of allowing the offender to count towards his second sentence time which would not have counted if the sentence had been imposed at the original trial and the original conviction had not been quashed—for example, time during which he had been unlawfully at large following escape 384 from prison. This would clearly have been wrong and the subsection has been re-drafted to avoid it.

Amendment No. 5 is purely formal. It makes the usual provision for any reference to a Statute to be construed as a reference to that Statute as amended or applied by or under other legislation. It has been added because some of the Statutes referred to in the Bill have been amended since its introduction by or under subsequent legislation, in particular by the Defence (Transfer of Functions) (No. 1) Order, 1964, made under the Deference (Transfer of Functions) Act, 1964. Finally, there are amendments Nos. 8 to 12. These are merely drafting Amendments, consequential upon the Defence (Transfer of Functions) Act, 1964. I beg to move that this House doth agree with the Commons in the said Amendments.