HL Deb 16 June 1966 vol 275 cc230-6

7.54 p.m.

Report of Amendments received (according to Order).

Clause 6A:

Record of proceedings at the trial.

6.—(1) Rules of court may provide for the making of a record (whether by means of shorthand notes, by mechanical means or otherwise) of any proceedings at assizes or quarter sessions in respect of which an appeal lies (with or without leave) to the criminal division of the Court of Appeal and for the making and verification of a transcript of any such record and for supplying the transcript, on payment of such charge, if any, as may be fixed for the time being by the Treasury, to the registrar of criminal appeals for the use of the criminal division of the Court of Appeal or any judge exercising the powers of a judge of that division and to interested persons.

THE LORD CHANCELLOR moved, at end of subsection (1), to leave out "interested persons" and insert: such other persons and in such circumstances as may be prescribed by the rules".

The noble and learned Lord said: My Lords, I beg to move the Amendment standing in my name on the Marshalled List. This is the only Amendment, and I am sorry that an Amendment should be necessary on the Report stage. What has happened is this. As your Lordships know, this Bill is one to implement the recommendations of the Committee presided over by the noble and learned Lord, Lord Donovan, in effect abolishing the present Court of Criminal Appeal and constituting that Court a section of the Court of Appeal.

There was one clause, however, which deals with a matter not contained in that Report. It was a clause dealing with transcripts. The reason why there was a clause about transcripts at all was simply that one should always look at the future. I have a Committee sitting under the chairmanship of Mr. Justice Baker which has been considering the whole question of the recording of court proceedings mechanically instead of by shorthand. That Committee has already given me a useful interim Report, but they have not yet given me their final Report. However, I thought it right, looking to the future, to provide for the possibility of mechanical recording, though that is a thing which obviously is going to take a considerable time to install and so forth. But one has to look to the years ahead.

That clause reproduced in other respects wording of earlier Acts as to who was to be entitled to a shorthand note. The position, so far as divorce cases are concerned, is that there are limits to supplying shorthand notes to other people—and, indeed, your Lordships may well feel that that is right so far as the habits of the marriage bed are concerned. After all, marriage is peculiarly an individual thing. It may be one thing to hear a divorce case in public, but it is another thing to give to people who are not parties a detailed transcript of the evidence. But so far as a civil case is concerned, anybody is entitled to get a transcript if he pays for it. It is a public hearing. Anybody can attend. Anybody can take notes. Anybody can take a shorthand writer with him, and anybody is entitled, provided he pays the charge laid down, to have a transcript of the hearing in a civil case.

In regard to criminal proceedings, for some reason or other, in the Criminal Appeal Act, 1907, this right was restricted. The only people who were allowed to have a transcript, even if they paid for it, were interested parties: that is to say, the prosecution and the accused, the Judges of the Court of Criminal Appeal, of course; and it was also provided that the Home Secretary could have a transcript of any case for his own use. Almost as soon as it started, this gave rise to enormous difficulties, because the first thing that happened was that a solicitor said, "I want to advise my client as to whether or not he should appeal; so I want a transcript." The answer to that was, "Until you give notice of appeal"—and presumably an appellant must be a party—"you cannot have one. You must give notice of appeal first, and then only can you get a transcript."

Then there were other people who had a legitimate interest, because they had civil proceedings pending. A man might have been convicted of driving a car whilst under the influence of drink, and a civil claim might have been pending, and it was important to everybody to know what he said in evidence in the criminal proceedings. All these difficulties were eventually overcome by its being said that anybody could have a transcript with the leave of a Judge of the Court of Criminal Appeal.

The next thing that happened was that the Home Secretary told the House of Commons, in answer to a request, that if they wanted him to, certainly he would put a transcript of some particular cases in the Library of the House of Commons. Then it was found that the section said "for his own use". So that was no good. Then the section was altered again, and the words "for his own use" were cut out.

This power of a Judge in the Court of Criminal Appeal to allow somebody to have a transcript has been a source of considerable difficulty, because this, in effect, makes the Judges censors. How are they supposed to exercise the power? If the criminal proceedings have been of a sexual or indecent character, are they then supposed to refuse a transcript? Or if an author wants to write a book about a case, are they to say, "I think he is rather a good author; therefore I will let him have a transcript"? In another case will they say, "I will not let this other person have a transcript"?

All the way through the matter has been one of great difficulty. I remember very well in the Timothy Evans case, a case in which I was rather interested, Evans's mother was refused a transcript until after her son had been hanged, on the ground that she was not a party interested—which, technically, I daresay, may have been right. My noble friend Lord Kennet recently asked a Question because Mr. Ludovic Kennedy was writing a book in relation to the Ward case and had been refused a transcript.

The noble and learned Lord, the Lord Chief Justice, tells me that this power is not one which the Judges of the Court would desire to have. If there is to be censorship of some kind, this is a social rather than a legal question. If Parliament said that only people in certain categories are to have transcripts, then it would be quite proper judicially to say whether some particular individual comes into that category. But this very general power is not one which the Judges would desire to have. So the Government have considered if there is any real reason why anybody who is able to pay for a transcript should not have one. They are fairly expensive. At present rates the cost to the parties is about £48 a day. If a transcript is being made for the Court of Criminal Appeal a carbon made at the same time would cost only £5 a day. Therefore, with an ordinary transcript costing £48 a day, nobody will be likely to want a transcript who does not really need it. After all, a court is a public place and anybody can go there. In fact, an author could take along his own shorthand writer to make his own notes. If he is writing a book and wants to verify that his recollection is accurate, why on earth should he not have a transcript in order to make sure that it is accurate?

The Amendment is designed to remove the old form which, I am afraid, was in the Bill about the party interested, and to provide instead that a transcript may be given to such other persons and in such circumstances as may be prescribed by the rules, so that the matter would be left generally to the Rules Committee. Your Lordships will want to know what the Rules Committee would be likely to do. What I would wish them to do I have no doubt they will do, and that is that they should act on the general principle that anybody should be entitled to a transcript, except that there are cases in which a court can order that the name of some person who is under 16 is not to be mentioned. The transcript rules would have to cover that point. Then there are sometimes criminal cases in which the evidence is heard in camera on security grounds. Again the rules would have to provide for that. They would have to provide, as indeed the existing rules do provide, as to what charges the shorthand writers were to make; and, either in the rules or administratively, arrangements would have to be made to ensure that any transcripts wanted by the public in criminal cases did not delay the making of transcripts for appeals.

We are rather short of shorthand writers in these days, and what, of course, would be quite wrong would be that appeals against convictions should be held up because the shorthand writers were busy making, perhaps more profitably, transcripts for private people. Therefore, there would have to be, either administratively or by rules, some arrangements made to ensure that the fact that people wanted transcripts did not delay the hearing of appeals. It is on these grounds that I beg to move the Amendment which stands in my name.

Amendment moved— Page 6, line 5, leave out ("interested persons") and insert the said new words.—(The Lord Chancellor.)


My Lords, the House is again grateful to the noble and learned Lord for the explanation of this Amendment, which, clearly, has rather more to it than might at first have met the eye. There is one point which I should like to put to the Lord Chancellor for his consideration. The method which is to be chosen is quite clear in this subsection, and it is Rules of Court. It is also perfectly clear from what the noble and learned Lord has said that this is not a legal, but a political or social matter. Therefore, it will be the Rules Committee which might have to put in those rules. Parliament, as I understand it, has no control over the Rules Committee. If the situation is really as the Lord Chancellor has said, I venture to think that it would be worth while considering whether these rules, at any rate in this respect, might take the form of a Statutory Instrument rather than rules of the Supreme Court. Parliament would then be able to express its view, whereas at present it cannot. I hope the noble and learned Lord the Lord Chancellor will be able to tell me whether that is possible. I should have thought that either here or in another place it is conceivable that the course which I have suggested would be preferable to the course embodied in the Amendment itself.


My Lords, I think that it would be desirable that any rules should be made by the Committee, because all other rules in relation to this Court are made by the Committee. But the rules of the Committee are subject to the Negative Resolution procedure in this House, so that if any Member either in your Lordships' House or in another place disapproves of a rule he can move to disapprove them under the Negative Resolution procedure.

On Question, Amendment agreed to.

House adjourned at seven minutes past eight o'clok