HL Deb 21 June 1966 vol 275 cc243-57

2.49 p.m.

Order of the Day for the Third Reading read.

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read 3a.—(The Lord Chancellor.)

On Question, Bill read 3a.

THE LORD CHANCELLOR

My Lords, I beg to move that the privilege Amendments be agreed to.

Moved, That the privilege Amendments be agreed to.—(The Lord Chancellor.)

On Question, Motion agreed to.

THE LORD CHANCELLOR

My Lords, apart from many minor improvements in the law, I believe that this Bill will confer upon us three great benefits. First of all, it means that our Court which hears criminal appeals will have a higher status and authority than it has ever had before; secondly, I believe the increase in its powers will be found to enable it to do justice in a few cases in which it has been unable to do justice before; and, thirdly, through the increase in the number of Judges available to what will be the new criminal section of the Court of Appeal it will be able to hear criminal appeals more speedily than it can now. My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(The Lord Chancellor.)

LORD STOW HILL

My Lords, I hope your Lordships will not think me guilty of presumption if so soon after having been admitted as one of your Lordships' number I ask your indulgence to make a short intervention in this very important debate. My excuse must be that I have always been particularly interested in this Bill, and I should like to take the opportunity of congratulating the Government upon introducing it. Its general provisions have already been exhaustively examined in your Lordships' House and I would not presume to add anything to the general discussion upon the broad purpose of the Bill. But I should like, if I may, just to concentrate on one provision of the Bill which has always interested me and in which, in exercising earlier responsibilities, I had some, perhaps, especial concern.

I refer to subsection (1) in Clause 4 which lays down the circumstances and the principles upon which the Court of Criminal Appeal (or the Criminal Division of the Court of Appeal as it now will be) should act in deciding whether or not to allow an appeal in a criminal case. As your Lordships know, that provision in Clause 4 introduces the new formulation of the duty of the appellate court to allow or disallow an appeal according to whether or not it is of opinion that the verdict of the jury, in all the circumstances, is safe or satisfactory. I regard that as a most important provision. Every person who has had to exercise the responsibilities of the Secretary of State for the Home Department has, I suppose, had to deal with cases in which there is a lingering suspicion, of which one cannot disabuse one's mind, that a man in prison, very often undergoing a long term of imprisonment, possibly has been sent to prison owing to a mistake on the part of the jury—a mistake on the part of the jury in assessing evidence which has been called properly, cross-examined exhaustively and considered in the learned Judge's summing up. Let us suppose the jury have nevertheless made a mistake and have come to the conclusion that the prosecution's case is made out, whereas in point of fact the individual charged is not the individual who committed the offence.

It is not my purpose at all to dilate on the details of any particular case. I am happy to be able to say that such cases were very few indeed in number. But they did exist and, if I may speak for myself, and I am sure for all my predecessors and successors in that office, they always caused the greatest anxiety and I did my best to examine them with meticulous thoroughness.

My Lords, there are two possible approaches to the jurisdiction of a Court of Criminal Appeal. One, perhaps, can be stated as follows. If upon examination of what took place in the court of first instance it appears to the Court of Criminal Appeal (the Court of Appeal as it now will be) that there was evidence both ways, that no valid criticism could be directed against the summing-up of the learned Judge, and that there was no other material irregularity in the course of the trial, then the appeal should be dismissed upon the basis that it was for the jury to weigh up the evidence; the jury's verdict should not be disturbed if there was evidence both ways and the evidence in favour of the prosecution is evidence upon which a reasonable jury could have come to a conclusion in favour of the prosecution. That is one approach. It is the approach set out in the admirable Report prepared by the noble and learned Lord, Lord Donovan, and his Committee which your Lordships have considered and it was the approach adopted by the Court of Criminal Appeal for many years after it was set up under the Criminal Appeal Act 1907. In judgments it has been almost explicitly so stated, and in the Report an extract is cited from a decision of the Court of Criminal Appeal in 1949, over which the noble and learned Lord, Lord Goddard, then Lord Chief Justice, presided, in which he again expressly formulated that that had been the principle on which the Court proceeded. The Report states in terms that that was the original basis of the Court's jurisdiction and the Court has since followed it.

The other approach is this. It follows the lines that although all those hypotheses may be answered in favour of the prosecution—in other words, although there was evidence upon which a reasonable jury could find in favour of the prosecution, and no criticism could be directed against the summing-up to the jury by the learned judge and there was nothing wrong in the course of the conduct of the trial—nevertheless it was the duty of the Appeal Court to proceed to ask whether, in all the circumstances, the verdict of the jury was safe and satisfactory; whether, everything being said in favour, and found in favour, of the prosecution, but considering the broad probabilities, the possibilities of error and so on, it was safe to allow the verdict of the jury to stand. That is the second approach. It is that approach which is now specifically enjoined upon the appellate court by Clause 1(4) of the Bill before your Lordships' House.

The point I would respectfully submit is this. There surely should be absolutely no doubt that the appellate court always, as a matter of strict duty, specifically adopts the second approach. That has been debated in the previous discussions on this Bill in this House, and I hope that I shall not be thought guilty of disrespect if I say that I seemed to detect at least a slight difference of emphasis in the attitude with regard to that specific question of some of the noble and learned Lords who hold judicial positions and who have spoken on the matter. I hope it will not be thought disrespectful if I cite, for example, shortly from what seemed to be rather contrasting statements of the position in the speeches of the noble and learned Lord, Lord Pearson, and the noble and learned Lord, the Lord Chief Justice of England.

Lord Pearson put the matter in this way. He attached great importance to the clause I am now discussing, and he went on to say: The first one"— he was speaking of the first change introduced by that clause— provides, in effect, that the Court shall have more power to set aside a jury's verdict if they think it is not right. At the moment, broadly speaking, the Court of Criminal Appeal can set aside the verdict given by a jury only if the Court take the view that there was, in substance, no evidence to support it".—[OFFICIAL REPORT, Vol. 274 (No. 12), col. 824; 12/5/66.] I will read on in a moment, but so far the noble and learned Lord has re-stated in terms what I have previously described as the first approach. He went on in his speech to say this: But under what is proposed there will be a further power to set aside the verdict of a jury if it seems to the Court that the verdict was unsafe or unsatisfactory. I regard that as a reasonable change. He continued—and I call your Lordships' attention to the somewhat tentative and qualified words which the noble and learned Lord used: To some extent, I think, it is true to say that the existing Court of Criminal Appeal would sometimes tend to act on that principle, but if they did it would not be easy to bring their action within the words of the existing Section 4. My Lords, that is one view, adopted by a very learned and distinguished Judge for whom we all have both affection and very great respect. I contrast it with the language used a little later by the Lord Chief Justice, at column 837. He put it quite differently, in these words: Then an opportunity is taken of elaborating or changing the grounds which entitle the Court to set aside a conviction. I would join issue with the noble and learned Lord on the Woolsack on this point. It is not, in my view, an innovation. I am afraid that for years on many occasions I have used these words: 'In all the circumstances of the case, the Court has come to the conclusion that it is unsafe for the verdict to stand.' This is something which we have done and which we continue to do, although it may be that we have no lawful authority to do it. To say that we have not done it, and we ought to have power to do it, is quite wrong. It is done every day, and this is giving legislative sanction to our action. The submission that I respectfully put before your Lordships' House is that there should be absolutely no doubt that this is always done by a Court exercising appellate jurisdiction in a criminal matter. It really cannot he satisfactory for the Court to limit their proceeding to looking at the evidence, asking whether the proceedings and the summing up were regular, and not open to criticism, and then saying, "Well, this was a matter for the jury; we proceed no further to ask whether the jury's verdict is safe".

My Lords, to limit one's inquiry at that point seems, to me, at any rate, if I may respectfully put it, to attribute to a jury—who undoubtedly have an advantage in seeing the witnesses and hearing them cross-examined—awisdom and sagacity that is beyond that which one can reasonably attribute to normal human beings. They may make a mistake. I think that, broadly, we are ready to accept that a personal impression founded perhaps on a mannerism, a way of giving evidence, an answer—a chance answer, a chance look, appearance, may be much more deceptive than we perhaps thought twenty, thirty or even forty years ago; and it is much safer to weigh the jury's assessment of evidence more carefully than was thought necessary against the surrounding circumstances and probabilities.

My Lords, behind the decision of the Court of Criminal Appeal (or the Criminal Division of the Court of Appeal as it will be) there lies, as always has lain, a kind of residual safeguard for the liberty of the subject: the exercise by the Sovereign of the Royal Prorogative of pardon. As your Lordships will know, Her Majesty exercises it on the advice of the Secretary of State for the Home Department. Often, of course, it is not very difficult humbly to tender what seems the appropriate advice, where it is apparent that there has been something, either by accident or design, withheld from the Court; where it would appear reasonable to suppose that, had the Court been in possession of the knowledge withheld, it would have arrived at a different conclusion, whether jury or Court of Appeal. Then perhaps the Secretary of State would not greatly hesitate humbly to tender advice to the Sovereign which might result in a person who was in prison being set at liberty. Sometimes fresh evidence arises, and then of course the Home Secretary can send the case back for further consideration to the Court of Criminal Appeal under Section 19 of the Criminal Appeal Act 1907.

But there is—happily only very rare, but nevertheless definite—a type of case in which everything known to the Home Secretary was equally known to the appellate court. Nothing new has emerged. There is no fresh evidence. Perhaps constant appeals and representations are made on behalf of somebody undergoing a long term of imprisonment. They have the haunting ring of sincerity, and the Secretary of State is left with the uneasy feeling that, conceivably, a mistake might have been made. It would, I think, be very wrong for the Secretary of State (except after the greatest hesitation and with the utmost reluctance, if he ever did it at all), to tender humble advice to Her Majesty which might result, in effect, in his assessment of the evidence being substituted for the assessment of the evidence arrived at by the appellate court. I do not know whether any Secretary of State has done it, but I know that if it has ever been done it was done only with the utmost reluctance and after very anxious consideration of the case. But someone must address himself to the specific question: Can the verdict safely be allowed to stand? The person, or persons, who I respectfully submit (and it is accepted by the Government as they have introduced this particular clause) must undertake that activity is a court of law. It is highly undesirable that it should ever devolve on a member of the Executive to address himself, or herself, to that question. It is for this reason that I am so very delighted that the Government have made this particular change. It must be made beyond doubt that the court should consider directly and specifically whether the verdict is safe and satisfactory.

I would add just these few further observations. It is important that the language of Clause 4(1) should be pellucidly plain. I just wonder (I should be grateful if the noble and learned Lord who sits on the Woolsack would give a little consideration to it) whether the language chosen is altogether the best language which could be chosen. I wonder whether the words which are inserted after the word "satisfactory" which will find their place in the clause as it goes on the Statute Book really add much to the first part of the clause. I hope that I shall not be troubling your Lordships or trespassing too much on your Lordships' time if I read the clause as it will appear with the amendment: It will provide that the Court shall allow the Appeal if they think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory or that the judgment of the Court before whom the appellant was convicted should he set aside on the ground of a wrong decision on any question of law or there was a material irregularity in the course of the trial, and in any other case should dismiss the appeal provided that the Court may notwithstanding that they are of the opinion that the point raised in the appeal may be decided in favour of the appellant dismiss the appeal if they consider that no miscarriage of justice has actually occurred. The question which I would respectfully put to the noble and learned Lord is this. The proviso, apparently, applies to all the three situations assumed in the earlier part of the clause. The verdict may be unsafe and unsatisfactory, but nevertheless the proviso applies. The Court may still dismiss the appeal if they think that there was no miscarriage of justice. I cannot myself envisage a situation in which there was an unsafe or unsatisfactory verdict and yet no miscarriage of justice. It seems to me that there is, apparently, a contradiction if the proviso applies to that part of the clause.

Similar considerations I should have thought, arose on the other two limbs (if I may so describe them) of the first part of the clause. The noble and learned Viscount, Lord Dilhorne, instanced, as a case of material irregularity, an accused per- son being cross-examined as to character before it had been put in. I cannot envisage a verdict which followed after an irregularity of this sort being other than unsafe or unsatisfactory. A similar question might be asked with regard to the accused in circumstances of a wrongful decision in law.

I hope that it may be thought worth while to look at the language. I am certain that it has already been most carefully studied and considered, both by my noble and learned friend and by his advisers, but he may think it is just worthy of a little further consideration on these lines. Those are the observations which I would respectfully proffer to your Lordships House. I would conclude by thanking your Lordships for the patience and courtesy which you have accorded to me on this my first essay into your Lordships' deliberations. I gladly offer my voice and opinion to those of your Lordships who support this measure.

3.12 p.m.

VISCOUNT DILHORNE

My Lords, 21 years ago, when, as your Lordships will remember, this House was temporarily occupied by Members of another place, I was sitting on that side of the House when a colleague on the Midlands Circuit rose to his feet from this side of the House and made his maiden speech. I listened to it with great interest because I was to follow him, and did. To-day, I have heard the same gentleman make another maiden speech in this House, and I am delighted to have the opportunity of following him on this occasion. I do not suppose it has oftened happened that the same person has followed two maiden speeches by another person. I cannot remember what the noble Lord said on that occasion, nor can I remember what I said, and I have not looked it up, but I know that the noble Lord made an excellent speech and I am sure that your Lordships will agree with me that to-day he has made a most interesting and excellent speech. As I have said, we have known each other for a long time. We were on the Midlands Circuit together. We fought each other on many occasions and I think that almost invariably we have disagreed on political questions. But I am very glad to see my old friend here, and I can say, not only on my own behalf, but also on behalf of your Lordships' House, that we look forward to his taking part in our debates.

The noble Lord, Lord Stow Hill, criticised the drafting of Clause 4. I was glad to hear him do so. I thought, if I may say so, that his criticisms were very cogent. In the course of our debates on this Bill I put forward the suggestion that Parliamentary Counsel should seek to redraft what is now Clause 4 to give it greater precision and to reduce, so far as possible, any misunderstanding of its true intent and purpose. That argument was met by the observation that Clause 4 had stood since 1907, many cases had been decided upon it and it had not really done too badly. I believe that is true, but I think something could be said for a clear redraft which would get away from some of those old decisions.

There is great force in the point made by the noble Lord, Lord Stow Hill, that it is rather odd that the proviso should apply 4o all that has gone before, including those cases where the court has found that the verdict was unsafe or unsatisfactory. So far as that is concerned, I welcome the proposal that the matter should be put beyond doubt, but I myself do not believe that there has been any doubt about it for a great many years. The noble and learned Lord, Lord Parker of Waddington, the Lord Chief Justice, as the noble Lord stated, said that it was the regular practice, and I think the noble and learned Lord, Lord Goddard, his predecessor, always acted on that basis. So I do not share the view expressed by the noble and learned Lord the Lord Chancellor that this will enlarge the powers exercised by the Court of Criminal Appeal. But I do think that it puts the matter beyond doubt.

It is always difficult, of course, to determine from reading a transcript what weight ought to be given to the evidence of particular witnesses. I hope that the putting of this matter beyond doubt will not encourage the appellate tribunal to re-try cases on the transcript, because this can lead to great error. I remember a case, in which I was appearing, which came before a very polite Judge. The defendant gave evidence. He said all the right things, but he said them in such a way that it was obvious to the court of first instance that he was not telling the truth, and it was obvious that the learned Judge formed that conclusion. Unfortunately, in the course of his judgment he did not say that, and when the matter was taken by the defence to the Court of Appeal, the shorthand note read so excessively well that the appeal succeeded. One really cannot re-try cases on the shorthand note. In every case, Judges, with their great experience, must be relied upon to do their best—and I am sure they can be relied upon to do their best—and where there was a conflict of evidence, or if the jury rejected some of the evidence, they have to consider whether it still remains safe to let the conviction stand.

There are two points to which I desire to refer again. One is the worry I have lest the already heavy burden on the Judges who discharge these duties should increase tremendously in future. There is little to discourage those who are sentenced to long terms from appealing, even though their chances of success are extremely slight. The only disincentive is the possibility that some part of the time they have spent in custody before the appeal is heard—or it may be the whole of the time—will not count towards their sentence, so that in some cases the effect of appealing may be to prolong the period of custody. I must say that I have always disliked the idea that loss of liberty should be the penalty for appealing when an appeal is not warranted, but it is difficult to find another deterrent. I therefore hope that some thought will be given to seeing whether some other machinery can be found that would avoid that. I am not altogether sure that the deterrent would be wholly adequate.

I have always taken the view—and I adhere to it—that it would be an improvement if the Criminal Division of the Court of Appeal had power to alter the sentence in any criminal case that came before it. Although the number of cases in which the Court might want to exercise that power might be very small, I cannot see why the Criminal Division of the Court of Appeal should not have power to put right what has obviously been wrong—a power, incidentally, which the Appeal Courts in Northern Ireland and Scotland have had for many years. I hope that further thought can still be given to this point, because I am sure that it would be an improvement. My Lords, I think that this is a good Bill. I hope that an improvement will be made in the wording of Clause 4. I hope that your Lordships will find, in the light of experience, that it does facilitate the administration of criminal justice.

3.20 p.m.

LORD CONESFORD

My Lords, I shall detain your Lordships for only a few moments. May I, first of all, add my congratulations to those of my noble and learned friend Lord Dilhorne to the noble and learned Lord, Lord Stow Hill, for the admirable maiden speech to which we have listened? I am afraid, looking back to the years 1946 to 1951, that on many occasions I found myself speaking against him on clauses and amendments in the Finance Bill, and I remember the uniform courtesy and persuasiveness with which he answered all arguments. I think that possibly I have even heard the noble Lord in an assembly in which nobody else here present has heard him speak, because it so happens that I was on one occasion at The Hague when the noble and learned Lord was arguing the case for the British Government before the International Court in the Corfu Channel case; and very persuasively he did it.

On the Bill itself, I should like to say that I agree with some of the criticisms made by the noble Lord of the language as it will emerge from Clause 4(1)—the language as it will be in the future—though I doubt whether some of the possible harm it might do is quite so great as he suggested; because, of course, it is inconceivable that the proviso would be held to apply in a case where it is unsafe or unsatisfactory to follow the decision of the court below. It is rather interesting that the one piece of language in that subsection on which we all now agree is the very words that were proposed nearly 59 years ago by a then Back-Bencher on the Opposition side of the House of Commons, Mr. F. E. Smith: the need for the words was foreseen by him at that time, and he sought by an Amendment to incorporate them in the Bill then before the House.

I confess that I have two principal doubts about the Bill as it now stands. They are not sufficient to make me wish not to give it a passage to another place this afternoon, although they are matters which I hope some Members in the other place will think it advisable to consider rather carefully. The first matter is the one mentioned by my noble and learned friend Lord Dilhorne; that is, the power of the Court of Appeal to increase the sentence, which this Bill, as now drafted, takes away.

I am not going to repeat the arguments that I used on the former occasion. My view is that in this matter there is a real danger that, in the interest of the prisoner—which, of course, it is absolutely right that we should carefully consider—and in the interests of the general convenience of the court, we may be disregarding something even more important; namely, the security of the public. I sometimes think that in this House we do not sufficiently appreciate the alarm, fear and sorrow caused by the triumphant wave of crime. Consider the number of old people, perhaps living alone and in a great sense of insecurity, who have a sense of fear if they hear a knock on the door at night. I am not going to labour this point, but I am sure that great evil is done to the law and administration of justice, and to the happiness of the public, if the deterrent effect of the law is removed by an inadequate penalty imposed by the court. It may be very rare that a penalty would be so inadequate that the Court of Appeal, or formerly the Court of Criminal Appeal, would wish to interfere. Nevertheless, there was the power, and I believe it to be a useful power. I hope that much consideration will be given to that matter in another place. I agreed, and still agree, with the proposal put forward by my noble and learned friend Lord Dilhorne, that the power which the Court of Appeal should have to alter a sentence in either direction should be quite independent of whatever the appeal of the appellant may be. I think it is a natural power that the Court ought to have.

The only other matter is one which has not been discussed in this House at all on this occasion, although I believe that one of the noble and learned Lords had thought of bringing it forward, and that is the question of a new trial. The Court is given no power by this Bill to order a new trial. I know that the question whether the Court should have that power is highly controversial. We had close divisions of opinion in this House some years ago on another measure, and on that occasion, I think, it was not discussed by the House of Commons.

Nobody has known longer than I have the case for the law as it stands in this respect, because when I went to the Bar I became a pupil of Herbert du Parcq (as he then was; subsequently Lord du Parcq, a Lord of Appeal in Ordinary in this House), and in this House he made extremely effective speeches against the right to order a new trial for which I am now pleading. Nevertheless, I believe that at the present time there are very strong arguments indeed for giving the Court of Appeal, in a case in which the Court think it proper, power to order a new trial, instead of merely releasing a man whom they really regard it as unsafe to release, as they may be compelled to do in the absence of the power to order a new trial. I propose to say nothing more about that matter than to express the hope that it may be discussed in another place.

3.29 p.m.

THE LORD CHANCELLOR

My Lords, may I say first what a great pleasure it was to me personally to hear the maiden speech of my noble and learned friend Lord Stow Hill. He brings the knowledge and authority of one who has occupied the position both of Attorney General and of Home Secretary, and I am sure that it will be a great accession of strength to your Lordships' House that we shall be in a position to rely on his advice on anything which falls within those fields, and particularly, perhaps, on any question of penology.

With regard to the particular matters to which my noble and learned friend referred, these are, of course, subjects which were discussed on the Committee stage of the Bill. I believe he is particularly concerned, as I am, about cases in which—we know they have taken place, and we know which they were—an innocent man has been convicted on a question of identity, the only evidence of identity being given by one witness. Your Lordships will remember that it took four years to fight, until, in 1907, we got a Court of Criminal Appeal established at all; and we should never have got it established at that time had it not been for the case of Adolf Beck. That was also a case of identity.

The Committee presided over by the noble and learned Lord. Lord Donovan, referred in the course of their Report to the Report of the Committee of Inquiry into the case of Adolf Beck, and said: A large body of informed opinion takes the view that such a defect"— that is that an innocent man may be convicted— does exist. It can he illustrated by taking the case of disputed identity, it having long been generally recognised that"— and the following is a quotation of the Adolf Beck Committee's Report: evidence as to identity based on personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon, and therefore, unless supported by other facts, an unsafe basis for the verdict of a jury'. They then discussed that, and said: Under the terms of Section 4(1) of the Act, if it is strictly construed, there is, in the case of an innocent person who has been wrongly identified and in consequence wrongly convicted, virtually no protection conferred by his right to appeal or to apply for leave to appeal against his conviction, provided that the evidence of identification was, on the face of it, credible. We think this defect should be remedied; and we think it can be done without imposing on the court the duty of retrial of such cases. The remedy which they propose is the precise remedy provided by this Bill; namely, an increase in the powers of the Court to allow an appeal if it comes to the conclusion that a verdict is unsafe or unsatisfactory. So the wording is that which was itself proposed by the Donovan Committee.

The other points we did, of course, discuss on Committee; and that applies also to the points raised by the noble and learned Viscount, Lord Dilhorne, and the noble Lord, Lord Conesford. The first concerned an increase of sentence, on which the noble and learned Viscount said, in substance, what he has said to-day; but a majority of the Committee were of a different opinion, and no further Amendment on the point was moved on the Third Reading of the Bill. So also as to the alleged necessity of a deterrent' if the time spent awaiting appeal is allowed to count towards sentence. As I think I said at the Committee stage, there are two answers to that. In the first place, the Court will have power to order that the time so spent shall not count towards sentence if it is of opinion that the appeal is a frivolous one. Secondly, there was, I think, a general consensus of opinion that the main reason for such frivolous appeals as exist is the lack of legal advice on whether or not to appeal. Your Lordships may know that the system of legal aid in criminal cases works extremely well until the man leaves the dock, and then it completely breaks down. But if the recommendations of the Committee presided over by Mr. Justice Widgery are accepted and implemented, and legal advice is available at that point, I am sure that it will result in an absence of nearly all the frivolous appeals which arise at the moment and which are due to the fact that, without legal advice, the man, quite naturally, does not understand what is or is not a ground for appeal.

In these circumstances, my Lords, these matters having been debated at some length at the Committee stage of the Bill, I am afraid that I cannot hold out any hope that there may be, or indeed should be, alterations in another place. I am grateful to your Lordships for the general reception of this Bill, and in particular I look forward very much to hearing further contributions from my noble friend Lord Stow Hill, either in the fields to which I have referred or on any other matter which may come before your Lordships' House on which he may give us the benefit of his views.

On Question, Bill passed, and sent to the Commons.