§ [The references are to Bill  as first printed for the House of Commons]
§ After Clause 4, insert the following new clause—
§ Duty to admit fresh evidence
§ (" . Without prejudice to the generality of section 9 of the 1907 Act (supplemental powers), where evidence is tendered to the Court of Appeal under that section, the Court shall, unless they are satisfied that the evidence if received would not afford any ground for allowing the appeal, exercise their power under that section of receiving it if—
- (a) it appears to them that the evidence is likely to be credible and would have been admissible at the trial on an issue which is the subject of the appeal: and
- (b) they are satisfied that it was not adduced at the trial, but that there is a reasonable explanation for the failure so to adduce it.")
§ Clause 10, page 7, line 23, after ("sections") insert ("(Duty to admit fresh evidence)")1685
§ Line 28, after ("sections") insert (" (Duty to admit fresh evidence)").
Line 37, at end insert—
("for the references in section (Duty to admit fresh evidence) to section 9 of the 1907 Act there shall be substituted references to section 9 of the said Act of 1930.")
Schedule 1, page 10, line 20, at end insert—
(" Without prejudice to the generality of section 8 of the 1951 Act (supplemental powers), where evidence is tendered to the Courts-Martial Appeal Court under that section the Court shall, unless they are satisfied that the evidence if received would not afford any ground for allowing the appeal, exercise their power under that section of receiving it if—
§ THE LORD CHANCELLOR
My Lords, I propose to deal with all the Commons Amendments together, unless there is any objection. Accordingly, I move that this House doth agree with the Commons in their Amendments Nos. 1 to 5. Amendments Nos. 2, 3 and 4 have only the effect of applying Amendment No. 1 to Northern Ireland. Amendment No. 5 has only the effect of applying Amendment No. 1 to the Courts-Martial Appeal Court.
The subject matter of Amendment No. 1 is the conditions on which an appellate court in a criminal case should receive evidence which was not called at the trial. Under the Criminal Appeal Act 1907 the Court of Criminal Appeal had a wide and unfettered power to admit fresh evidence. In practice, as time went by, the Judges had to consider the conditions on which they would exercise this discretion. They came to the conclusion that fresh evidence should be admitted only if, first, it would have been admissible at the trial, secondly, it was credible evidence, and thirdly it had not been available at the trial. It was then found that this third condition—nobody has ever questioned the first two—might perhaps give rise to injustice because there may be cases in which there is some very good reason why the evidence was not available at the trial. When the Criminal Appeal Bill 1964 was before Parliament, the Home Secretary stated that he had spoken to the 1686 noble and learned Lord, the Lord Chief Justice, and understood that in fact this condition was not now insisted on if its insistence was likely to result in any injustice being done.
When the Committee of which the noble and learned Lord, Lord Donovan, was Chairman considered this matter—and, as your Lordships know, it is out of their Report that this Bill arises—they recorded what the Home Secretary had said, and said this:We construe this as meaning that the Court will exercise its power to hear fresh evidence in such a way as to ensure that any miscarriage of justice will so far as possible be avoided or corrected. It will, we think, conduce to this end if the condition as to the evidence not having been available at the trial were discarded; and we recommend that additional evidence should be received, if it is relevant and credible, and if a reasonable explanation is given for the failure to place it before the jury. The recent decision of the Court in the case of R. v. Kelly … indicates that the Court may already be acting on these lines.The Committee, it will be observed, did not suggest that this should be enacted in legislation. They seemed to accept that in practice this was now the position. Accordingly, this point was not dealt with in the Bill.
In another place a Member of the Opposition put down an Amendment, in substance including the present practice, to the Bill. Although I have said "a Member of the Opposition", there was no Party Division about the matter in the Committee in another place: there seemed to be a rather general view, on both sides of the Committee, that this should be in the Bill. But the Government refused to accept this, because they said that as this is the present practice it is quite unnecessary to have it in the Bill. The reply to that was: "That is all very well, but if it is the present practice, why do you object to having it in the Bill?" I considered this, and I consulted the noble and learned Lord the Lord Chief Justice and this did not seem to be the sort of point on which anybody ought to be asked to sit up all night. So at a later stage the Government accepted this, and that is why there is this new clause.
I hope that, in asking your Lordships to agree with the Commons Amendments, I have satisfied you that this is really a quite uncontroversial point, and 1687 certainly a non-Party point, and I accordingly ask your Lordships to agree to the Amendments.
§ Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
§ LORD CONESFORD
My Lords, in the unavoidable absence of my noble friend Lord Colville of Culross, who generally speaks for us on these matters, perhaps I may say a very few words in support of the Motion which the noble and learned Lord the Lord Chancellor has just put before us. As the noble and learned Lord has said, this matter is dealt with in paragraphs 131 to 136 of the Report of Lord Donovan's Committee, and the only doubt, I think, is whether the specific recommendation, contained in paragraph 12 of the recommendations, is required to be inserted in the Bill. For the reasons given by the Lord Chancellor, it was not originally included in the Bill, but in another place lawyers on both sides desired that the matter should be expressly included. That view was shared by Her Majesty's Government, and the noble and learned Lord the Lord Chief Justice has confirmed that this is already the practice of the Court. In those circumstances, I think this House will have no hesitation in accepting the Motion which the noble and learned Lord has put before us. Perhaps I may add that we agree that all the subsequent Amendments are, in effect, consequential.
§ On Question, Motion agreed to.