CRIMINAL PROCEDURE (ATTENDANCE OF WITNESSES) BILL (Hansard, 15 June 1965)

§ LORD HODSON

My Lords, I beg to move that this Bill be now read a second time. This, I think, is not a controversial Bill. It is intended to modernise and simplify the procedure for the attendance of witnesses at Assizes and at quarter sessions. It carries out one of the recommendations of the Sixth Report of the Committee inquiring into and reporting on the reform of Criminal Law, presided over by Lord Justice Sellers, who has the assistance of four High Court Judges and other members of the Bar and of the solicitors' profession.

As I have already said, this is not a controversial Bill. It was initiated as a Private Member's Bill in another place by Mr. McLaren. I have had a letter from the noble Lord, Lord Stonham. My noble friend is not able to be present today because he is abroad. He has expressed his regret that he is unable to be present to welcome the Bill. I have said that it is not a controversial Bill and I do not think that it has any emotional content at all. Nor do I think I shall have repeated the accusation which was made against me a few moments ago by the noble Lord, Lord Citrine—he has now left the Chamber—of sophistry: at least, I hope not, as this subject hardly lends itself to that.

The Committee were asked to consider whether the law should be revised to make more effective provision to secure the attendance of witnesses in criminal cases and to provide better sanctions where they failed to attend. Clause 1 endorses the concept of a witness order in place of the old subpoena. A witness order made on the witness summons is already used in magistrates' courts, and this suggestion will have the effect of simplification when examining justices require to secure the attendance of witnesses. In some cases the court will think—this is also dealt with in Clause 1—that the witness may not be required, and in such cases a conditional order will be made which will not be effective unless followed up by a notice. The accused 85 has to be told of his right to insist on the attendance of a witness in respect of whom a conditional order has been made.

The binding over of witnesses, which is a rather laborious business and is considered by the Committee to be unnecessary, and also the binding over of a prosecutor, is abolished by Clause 1, subsections (3) and (4). I have said that the old subpoena is or is to be abolished. The complication about a subpoena is, at any rate in part, that it does not always originate from the same source and there are complications which arise when one seeks to enforce the subpoena. Clause 3 provides for punishment for disobeying a witness order by way of fine, or of imprisonment up to three months.

Clause 4 is the one in which, perhaps, your Lordships may take more interest than in other provisions, because it gives a new power to arrest a reluctant witness or one who is likely to disappear. Curiously enough, the magistrates already have this power, but the judges of the High Court have not. It is obviously right, if there are no other objections, that there should be the same power in both places. Moreover, the Committee thought that nowadays there has been a large increase in serious crimes where vast amounts of money are not only involved but are in the hands of gangs who have the wealth to induce, or seek to induce, witnesses to leave the country. For those two reasons I recommend your Lordships to accept Clause 4.

The other clauses are not of particular interest. Clause 5 is supplementary to Clause 4. Clause 6 deals with cases where trial is transferred from one court to another. Clause 7 applies the same procedure to coroner's courts: that is to say, the witness summons and the witness order will be applicable there as in other courts. Clause 8 is concerned largely with the repeal of Statutes, many of them ancient Statutes, containing references to the binding over of witnesses and the binding over of a prosecutor. One may wonder perhaps why it is not necessary to secure the attendance of the prosecutor at the trial. I think the answer is that if there is a serious case which the prosecutor drops and lets the defaulter, if he is one, get away, the Director of Public Prosecutions will take it up.

§ LORD BOWLES

My Lords, I am glad to extend a welcome to this Bill on behalf of Her Majesty's Government. As the noble and learned Lord, Lord Hodson, has already explained, it is based on the Sixth Report of the Criminal Law Revision Committee and the reasons for it are fully argued in that Report. It is only a fortnight since, on the Motion of the noble Lord, Lord Denham, the House gave a Second Reading to a Criminal Justice Bill which derived from the Committee's Fifth Report. Tributes were paid then to the patient and thorough work done by this distinguished Committee, which sits under the chairmanship of Lord Justice Sellers, and I am sure that the House will wish to express its appreciation once again of the valuable contribution which the Committee is making to the process of law reform.

The present procedure for compelling the attendance of a witness at a trial at Assizes or quarter sessions is complicated and in parts anomalous and obscure. The Committee found that, in spite of this, the system still worked quite well, but they were in no doubt that it was cumbersome and out of date and ought to be replaced by a simpler and more uniform procedure.

Our system of justice depends on the oral evidence of witnesses given in open court, and it is desirable that the procedure for securing that evidence should be as direct and effective as possible. The Bill will provide such a procedure and has many obvious advantages over the present system. In place of the unnecessarily elaborate business of binding over, there will be a simple order made by the examining justices. In place of the subpoena, the law on which has long been clouded in obscurity, there will be a witness summons with clear-cut statutory provisions for its service and enforcement. There will be new power to secure the attendance of a person who has failed to comply with a witness order or witness summons, as the case may be, and a uniform procedure for the punishment of disobedience, which applies irrespective of whether the witness was ordered to attend by the magistrates or by a higher court.

87 I was interested to hear the noble and learned Lord, Lord Hodson, say, when he came to examine Clause 4, which he correctly regarded as the one that might raise controversy, that he felt on the whole that Lord Justice Sellers's Committee came to the right conclusion. I think I need not say any more at this stage, because if any Amendment is put down on Committee stage I am sure that the noble and learned Lord, Lord Hodson, and I, with the power and authority of the Sellers Report, will be able to deal with the matter. The Committee, after a great deal of careful consideration—because it is a controversial matter as to whether a High Court Judge should have the right to order the attendance of somebody who may, in the Judge's opinion, fail to attend as a witness—came down in favour of Clause 4 as it is now drafted, and so did the other place.

The occasions on which a witness fails to appear without good reason are fortunately rare and more often than not are due to idleness or carelessness rather than to any wilful intention to avoid giving evidence. The noble and learned Lord, Lord Hodson, referred to something which is very much in our minds. More and more as time goes by, large sums of money in the hands of gangs enable them more easily to spirit valuable witnesses out of the country and in other ways tempt them to disobey a witness summons or order. It may be that this does not happen very often, but it does happen sometimes that a witness avoids attendance quite deliberately, and this may have a serious effect on the course of justice.

In these circumstances it seems desirable that there should be, and should be seen to be, adequate means for preventing defaults of this kind and, where they occur, for punishing the defaulter. The Committee found that the present law was not always effective for this purpose and their proposals will substantially strengthen the law in this respect. In general, the Committee have devised a consistent and coherent procedure which will enable the machinery of justice to run more smoothly, and I hope that by giving this Bill a Second Reading to-night, the House will agree 88 to this further step towards the modernisation of our criminal procedures.