HL Deb 12 May 1966 vol 274 cc808-40

4.10 p.m.

Order of the Day for the Second Reading read.


My Lords, I beg to move that this Bill be now read the second time. This Bill relates to the Court of Criminal Appeal. For some years some measure of dissatisfaction has been expressed in relation to the Court of Criminal Appeal, not in the least by reason of any action of members of that Court but because of its constitution and powers. It is, after all, over half a century since the Court was constituted by the Criminal Appeal Act 1907, so it is not unnatural, perhaps, that some review should take place.

Most of your Lordships are not old enough to remember, but as a matter of history it is interesting to recall the long fight there was to get a Court of Criminal Appeal at all, as I am afraid it was rather the habit in the first half of the twentieth century to find the most extraordinary reasons to oppose any proposal for law reform. It was said that everybody would appeal because there would be nothing to lose; that numerous courts would have to work day and night throughout the year; that the costs would be astronomical; that juries would convict quite happily, because they would say, "It doesn't matter what we do; if we are wrong the Court of Criminal Appeal will put us right", and it really took a hard fight to get the Court established at all.

Now, half a century having gone by, it is the fact that, among those who practise before many Courts, the Court of Criminal Appeal has never had the high reputation which the Court of Appeal has had. It is, after all, only those who practise before different Courts who can compare one Court with another or one Judge with another, and the principal objections which were made, were, first, that the Court is not a real court of appeal. Of course, the Court of Appeal is staffed by Lords Justices who are of superior status to that of the Judges from whom the appeals come, but the Court of Criminal Appeal is staffed by the Lord Chief Justice, when he is not on circuit, and two puisne Judges who are of the same status as most of the Judges from whom the appeals come.

In view of these expressions of opinion, in February, 1964, the noble and learned Viscount, Lord Dilhorne, and Mr. Henry Brooke appointed a Committee, of which the noble and learned Lord, Lord Donovan, was the Chairman, to consider and report whether it would be in the public interest to transfer the hearing of all or some of the cases now heard by the Court of Criminal Appeal to the Court of Appeal or some other Court, and, if so, as to the manner in which that Court should be constituted, the powers it should have and the procedure to be followed; and, if not, to say what changes should be made in the powers, practice and procedure of the Court of Criminal Appeal and of the Criminal Appeal Office.

That Committee, which I hope the noble and learned Lord, Lord Donovan, will not mind if henceforth I call it the Donovan Committee, reported in 1965. They heard very large numbers of witnesses and received memoranda. Their Report is unanimous, and I am sure all members of your Lordships' House would wish me to acknowledge our great indebtedness to that Committee for the very careful consideration which they have given to the whole of this subject.

As far as the constitution of the Court is concerned the Committee accepted the views which I have indicated of most of those who gave evidence before them. It is perhaps only fair to say that, on balance, the Judges did not see that anything much was wrong, but all those who practise before the Court—the Bar Council, the Law Society, Justice, individual chairmen of quarter sessions, and so forth—expressed the view, first, that it is not satisfactory to have an Appeal Court where the Judges are not of higher status than those from whom come the decisions they are reviewing. No doubt it is felt quite unconsciously, but it is felt, that one cannot expect such a high standard of review where one day A is reviewing the summing up of B, and the next day B is reviewing the summing up of A.

It was felt, further, that as the Court consists of the Lord Chief Justice, when present, and two puisne Judges, and there were constant changes in the composition in the Court, one might find, and in some cases did find, Courts of Criminal Appeal within comparatively short periods coming to quite contrary conclusions in law because they were differently constituted, and one cannot expect the same consistency of decision. It was thought, further, that appeal Judges, like Lords Justices, acquired a technique of hearing appeals which is not maintained by a constantly changing Court; and if, as is so desirable for the Court of Criminal Appeal, we are to arrive at a consistent sentencing policy it is additionally desirable that the Court should, as far as possible, be a Court continuously composed of the same people.

The Donovan Committee, accepting these views, has proposed the abolition of the Court of Criminal Appeal and a transfer of its powers to the Court of Appeal, so that the Court of Appeal would now have a civil division and a criminal division, and the intention would be that two Courts would be able to deal with criminal matters. This would give one an increase in judge power—there is one spare Lord Justice. The Lord Chief Justice has pointed out recently that the Court of Criminal Appeal is losing ground. Appeals are being sent down faster than they can be heard, which is not desirable, and the intention would be that the first Court which would hear the appeal would be composed of the Lord Chief Justice, a Lord Justice and a puisne Judge, and the second Court, to hear applications, perhaps, of a Lord Justice and two puisne Judges. This must vary according to the Judges available and the quantities and nature of the work. It is not precisely laid down in the Bill, because in these regions it is desirable that the position should be a fluid one. The Committee said it is desirable to have a puisne Judge because it is desirable that the Appeal Court should be in touch with the state of crime in the country, and the prevalence of particular types of crime in particular parts of the country.

Those are the provisions which are contained in Clause 1 of the Bill. Clause 2 deals with sittings and the practice of the Court, and it would exclude the trial Judge from sitting on appeal. Your Lordships may be surprised to hear that a trial Judge can himself sit on an appeal from a decision of his own. The answer is that in practice this does not happen to-day, but it is still the law that he can. I do not think to-day anybody would take the view that that would be right, and certainly it is proposed to provide by law that the trial Judge shall not be able to sit on appeal.

Clause 3 deals with the Criminal Appeal Office, and in general it transfers the office of Registrar of the Court of Criminal Appeal to the Court of Appeal. One further change is being made, in that hitherto the senior posts of the Criminal Appeal Office have been ones which could be filled only by barristers. There appears to be no reason to-day why that should be so, and therefore it is being provided that in future solicitors, as well as barristers, shall be eligible for those posts.

Clause 4 deals with the powers of the Court. I need not, perhaps, go into detail about this, but it was widely felt that the powers of the Court to allow an appeal were not quite wide enough. There may be a case in which identity is in question, and if any innocent people are convicted to-day (and it is probably impossible ever to have any system of justice which ensures that that can never happen), I should think that in nine cases out of ten—if there are as many as ten—it is on a question of identity. The tendency of the Court of Criminal Appeal has been to approach these cases with some hesitation, because, even if there was only one witness to identity, they say, "After all, the jury heard and saw the witness, and it is not for us to supplant the verdict of the jury. It is a very odd thing that they convicted on this, but there it is: they did".

There has been a general feeling in the legal profession that if you go to the Court of Criminal Appeal for an obviously guilty client who has some technical point, if the technical point is good, then the guilty man gets off; but that if your only complaint is that your client is entirely innocent and had nothing at all to do with the crime, then it is much more difficult. The recommendation of the Donovan Committee provides an additional ground on which the appeal may be allowed; namely, that the Court is of the opinion that, on the whole, the verdict is too unsafe or unsatisfactory to be allowed to stand.

Another change which is proposed—and this, I realise, is a matter of opinion, though personally I am in agreement with the recommendation of the Committee—is the removal of the power to increase sentences. I quite understand that it may be said, "Is it not the job of a criminal appeal court, if there has been a wrong sentence, to substitute a right one? If the sentence was too much, it ought to be reduced, and if it was too light it ought to be increased". If one were trying to evolve a perfect system of always getting the right sentence, there might be much to be said for allowing the prosecution to appeal whenever they thought the sentence was too light. But to allow the prosecution to appeal would be quite contrary to our traditions. So, in practice, the question arises only where an accused person appeals because he thinks his sentence is too heavy, and accordingly it is very rarely that the Court of Criminal Appeal would say, "We think it is too light".

Moreover, since the man whose sentence may be altered ought to be legally represented, when the Judge who reads the papers on an application for leave to appeal sees that there is an appeal against sentence, and takes the view that a sentence is too light, it is thought only fair that the man should be legally represented; and in order that the grant of leave should not be a trap, it is sometimes intimated to counsel that the reason leave is being given is that the Court thinks that the sentence is too light; whereupon, of course, the man abandons his appeal. So the number of cases in which sentence is increased is very small indeed, and on a balance of all the different considerations the Committee were of the opinion that the power to increase sentence should be abolished.

The next Clause, Clause 5, deals with the computation of time. The law has always been—I am not putting it quite accurately but broadly, in lay language—that the time spent awaiting appeal does not count as part of the sentence unless the Court makes a special order to that effect. The justification advanced for this is that if that were not so, everybody would appeal, because the people concerned have nothing to lose. The original justification for it, I think, was rather different, because at the time the law was made there was a considerable difference between the prison conditions of those who were serving their sentence and those who had given notice of appeal. But these privileges have gradually been abandoned and, apart from the right to see a solicitor and, it may be, to receive one letter a week, there is little difference to-day between the conditions in which the people are kept.

If I may respectfully say so, I feel very strongly that the Committee were right. It has always seemed to me that it cannot be right that a man should, in effect, be sent to prison for what may be six weeks because he dared to exercise a legal right; and that, if the answer is that frivolous appeals must be discouraged, the matter should be put the other way round. We should say that, ordinarily, the time spent pending appeal is to count towards somebody's sentence, but that if the Court finds the appeal to be a purely frivolous one, if you like, the time spent pending appeal shall not count. In substance, that is what Clause 5 does.

I ought perhaps to add, my Lords, that the Court has been very reluctant ever to make an order that the time is not to count. I remember a case in which a well-known civil servant, Miss Fell, showed some documents, which did not matter materially, to somebody she should not have shown them to, and on prosecution under the Official Secrets Act she was given the maximum sentence of two years. The general body of opinion, as expressed by the Press, was that this was far too much. I express no opinion about that at all. But it was a case in which the length of the sentence gave considerable concern, and in which nobody could possibly have said that her appeal was frivolous. At the same time, the Court refused to make an order that the time waiting for appeal was to count, so she got an additional six weeks for having dared to exercise that legal right.

Clause 6 contains a matter which is not dealt with in the Report of the Donovan Committee, and this is to give me an opportunity to implement a report which I have recently received from a committee on mechanical recording. I do not wish to exaggerate the position, but I am sure that the time is coming when, gradually, we shall move over from shorthand writing to mechanical recording. We all owe a great debt to the shorthand writers in the courts, who have great skill in their profession; but, of course, it is getting more and more difficult to get shorthand writers. Mechanical recording has this advantage: that of course any copy typist can type straight from it, whereas with a shorthand writer he may do a shorthand note of a trial at the Central Criminal Court and then, by the time a copy of it is wanted, he is doing a shorthand note at Derby Assizes, and it is necessary to wait till he comes back. In the last six courts which have been built in the Royal Courts of Justice tape recorders have been installed and are now being used, and therefore the object of Clause 6 is to make it possible, but not obligatory, to use tape recordings. Further experience will no doubt be required before this system is widely and generally extended.

The remaining clauses of the Bill can be taken very shortly. Clause 8 and Schedule 1 bring the Courts-Martial Appeal Court into line with the new powers and so forth of the Criminal Division of the Court of Appeal, as it will be: Clause 10 brings the powers of the Court of Criminal Appeal in Northern Ireland into line. There is no need to deal with the constitution of the Northern Ireland Court, because that is a Court of Appeal which now includes all Judges of the Supreme Court. Clause 11 provides that the Bill shall come into force for different parts on an appointed day or different parts on different appointed days.

In moving the Second Reading of this Bill, I submit that it is a vitally important piece of machinery for dealing with crime. It is, in a sense, technical, but it improves the law itself. It will relieve what is an existing strain on administration in the Court of Criminal Appeal, and some sense of grievance which exists. So far as I know, this is not in any way a Party political matter. The Donovan Committee, to whom we are so much indebted were, as I have said, appointed by the last Conservative Government; they reported in the lifetime of the last Parliament, and the last Government said that they would accept all the recommendations of the Committee and would implement them as soon as possible. My Lords, to-day is that day. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

4.31 p.m.


My Lords, the noble and learned Lord who sits on the Woolsack has described to your Lordships how this Bill is based upon the Report of the Donovan Committee, and in dealing first with the question of the persons who should sit as a Court of Criminal Appeal in one form or another, that Committee dealt with various suggestions that were put forward on this particular subject. One of them was that puisne Judges should sit. These Judges would be selected, says the Report, on their aptitude for criminal work. It goes on, fortunately, to add: whether obtained at the Bar or acquired on the Bench. I must say that when I look at the list of speakers who have put down their names to speak on this Bill this afternoon, I feel that if that description is suitable for most of them, in the non-derogatory sense, I am afraid it is not suitable for me. Nevertheless, I will certainly try and deal with this Bill on a non-Party basis, because I believe that although controversy may arise on some of the provisions, this controversy will not be based upon any Party issue.

I think I should begin by welcoming the new composition of the Criminal Division of the Court of Appeal. It seems to me that the Donovan Committee have fully made out a case for the change and, since their reasons are set out so fully and have also been touched upon by the noble and learned Lord, I think I need say little more than perhaps just to thank him for his explanation of the intended personnel who are going to sit on the Court of Appeal when it sits as a Criminal Division.

Paragraph 85 of the Donovan Committee Report in fact sets out certain suggestions in this matter. From what the noble and learned Lord said, I believe that those suggestions have been accepted. I believe that there is considerable advantage in having the noble and learned Lord the Lord Chief Justice sitting in charge, when he is not on circuit, so that there shall be the advantage of his presence to direct the policy of the criminal division, as he has done with what is the Court of Criminal Appeal. I should also like to welcome the change to which attention was drawn, in Clause 3, by which solicitors are now to be entitled to join the staff of the registry that will service this particular Court.

When we get on to Clause 4, I have, I must confess, a quibble with the noble and learned Lord. I recall so well the debate in June, 1964, on the question of law reform, which is so dear to the heart of the noble and learned Lord. He was, perhaps not surprisingly, rather critical of our Statute Law, and he said: …on almost any subject, to find the law on some particular point one might have to look at twenty different Acts of Parliament all dealing with the same subject matter."—[OFFICIAL REPORT, Vol. 258, col. 1080; 11/6/64.] He went on to refer to the scientific revolution and the need for efficiency. If ever there was a thoroughly deplorable case of legislation by reference I would suggest that it is subsection (1) of Clause 4. I do not believe it would have been any longer if it set out the relevant section of the 1907 Act as amended, and certainly it would not then have been necessary to go through the exercise entirely on one's own on a piece of paper. As I understand it, the amended section will in fact read like this: The Court of Criminal Appeal, on any such appeal against conviction, 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 committed should be set aside on the ground of a wrong decision on any question of law or that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal. Then there is the proviso, but of course under this Bill we leave out the word "substantial".

I should be the last person to be critical of the noble and learned Lord, as a rule, on this matter. But he is going to America on a distinguished occasion dealing, I believe, with law reform. I hope that when he comes back he will be so inspired with the zeal of the occasion that he may see fit to write out again subsection (1) of the clause, or at any rate will accept an Amendment from me to that effect; and deal likewise with the provision in Schedule 1, which amends the Courts-Martial (Appeals) Act 1951, the Army Act and the Air Force Act of 1955, because, unless he is going to live up to his past principles, it is quite ludicrous that this sort of drafting should go into a Bill which is introduced into this House by the noble and learned Lord.

I will come back in a moment to subsection (2) of that clause, and perhaps go through the less controversial matters first. I am grateful to the noble and learned Lord for his explanation of Clause 6, because I had thought that I was right in failing to find it in the Donovan Committee Report. I suspect that a great deal of experiment will be necessary in this particular matter, because I cannot anticipate that the transcript will be required any the less often simply by reason of having a mechanical recording. I wonder whether there might not have to be someone there to work it; and I wonder also whether there will be any great lessening in cost. I am not sure that I fully understand the purport of Clause 6(2). I wonder whether it may indicate some restriction of the availability of a transcript which is going to be made by a mechanical means, whether by a tape recorder or whatever it may be. I hope there is no indication of that sort to be derived from that particular subsection.

I think that one of the clauses which the noble and learned Lord did not comment on was Clause 7. I believe that the contents of it are important, because any provision by which a witness who is going to come and give evidence in a particularly narrow sphere—as it so happens in this case, but it applies generally—should, I would think, be encouraged so to do by the proper provision of expenses and repayment for his loss of time. It must be a common experience that a would-be witness, if he has ever had to give evidence before, will be the most reluctant person on earth to be dragged along to court, at any rate because of his experience in the lower court of the time wasting and inconvenience that was caused him. I am glad to see in this Bill a provision which, so far as the new Division of the Court of Appeal is concerned, will at least do something to recompense him for his trouble. I believe that this is a good provision, and one which should be copied whenever the occasion arises.

I now come on to three matters which I think require a certain amount of consideration. The first of them is, of course, the provisions of Clause 4(2). On the whole, it seems to me that the arguments which are set out in the Donovan Committee Report, and which have also been adumbrated by the noble and learned Lord, are convincing. But what I think the noble and learned Lord did not tell the House was that, although the Donovan Comittee recommended the change that appears in the Bill, they recommended it with some degree of tentativeness. They were worried on this provision, as I think committees who have considered the question of criminal appeal have always been worried, about the possibility of increasing the flood of criminal appeals to what will now be the Division of the Court of Appeal. They went so far as to say that they would consider that, even if the prevention of such a flood was not the prime purpose of the power of the Court of Criminal Appeal to increase the sentence, if it did have that effect it would be a fairly good argument for retaining it. They say that there is no reliable evidence on which judgment can be based whether or not it is likely that an increased number of appeals will arise as a result of the change proposed by this Bill.

I suppose the only reasonable way in which one can discover any such evidence, if indeed it exists at all, is to try it; but I hope that, notwithstanding the predilection which the noble and learned Lord has said he entertains for this reform, the matter will be treated as being one of experiment. If this or any other provision of this Bill results in the new Division of the Court of Appeal being overwhelmed by appeals, I am sure the Government of the day, if indeed it is the same one, will not hesitate to look at this again. I say this because I am afraid it may be that I speak as a lone voice on this matter. So often provisions which ameliorate the lot of somebody who has been convicted for an offence are put forward and carried enthusiastically, but if they do not work it is much more difficult to get them reversed.

If noble Lords want an example of this they can see what happened in Scotland about the question which is raised in Clause 5: this is set out in the Donovan Committee's Report. In this case we are not dealing with the abstract point of what is proper for the criminal as against the protection of society. Here we may well be dealing with an extremely practical matter of how much work the Court of Appeal will be able to get through. If it emerges that this reform is going to unloose a great flood of work upon it which mostly turns out to be unmeritorious, then I believe that there will be rather different considerations than the usual ones for looking at this matter again.

In some degree the same principle applies to the provisions in Clause 5(1). I am all for trying the experiment—and the Donovan Committee calls it an experiment—of adopting the system which is now in force in Scotland. But, again, this is a matter which may conceivably lead—and there was evidence that it did or may have done in Scotland—to an increase in unmeritorious appeals. If so, I hope that the same principle will apply and that the Government will keep a very close eye on the matter and, if necessary, will not hesitate to put back the situation as it is now, particularly as, so far as this one is concerned, there is power in the present Act for the Court to say whether or not the time spent in prison should count towards the sentence. It is perhaps only because they have not done so very often that the problem has arisen in the form in which it has.

I do not think that the noble and learned Lord again was quite complete in his description of the privileges which an appellant obtains. Your Lordships will find them in Rules 57 to 61 of the Prison Rules 1964. There are rather more than the noble and learned Lord set out. I assume that they will now become available automatically to all appellants, as before; and, if that is so, and if the evidence which the Donovan Committee received on this matter has any degree of truth in it, it may well be that here again more appellants will put in appeals simply for the sake of gaining these privileges than would previously have done. And they will expect that the Court will not, as it has not hitherto, give any direction as to the inclusion of the time spent on appeal in their sentence. I believe that both these matters have to be looked at and kept under supervision for the next year or so in order to see whether the statistics give any guidance as to their working.

Finally, there is one matter in the Donovan Report which causes me a certain amount of trouble. It is not dealt with in the Bill and it may be that it is not necessary to deal with it, but I should be grateful if the noble and learned Lord, the Lord Chancellor, could give some guidance to the House on it. I believe that the noble and learned Lord, Lord Parker of Waddington, would be able to do so as well. This is the question of the hearing of fresh evidence, and it is dealt with in paragraphs 131-136 of the Donovan Committee's Report. As I understand the situation, there is power in the Court to quash a conviction on a variety of grounds, and among them on the grounds that there was a miscarriage of justice. It also has power to hear evidence under Section 9 of the 1907 Act, if it thinks fit to do so. There has, however, been a fairly strict rule employed by the Court of Criminal Appeal that it will not allow any such new evidence to be admitted if such evidence was available at the time of the trial, and there has been a fairly strict interpretation of the word "available".

Then, by the Criminal Appeal Act 1964, both on an ordinary appeal and in the case of courts martial, there was a new provision that, instead of quashing the conviction, as there was a power to do under the old Act, on an appeal against conviction the Court of Criminal Appeal could order a new trial. One of the reasons why it might order a new trial was that the convicted person produced new evidence which it thought justified such a course. An assurance was given, at the time when the 1964 Act was going through another place, that any rule which the Court had adopted about what evidence it would treat as admissible for these purposes was not to bind it in future and that it would take a new look at this matter and deal with each case upon its merits.

At the end of paragraph 136 the Committee drew attention to a recent case of The Queen v. Kelly, which indicated that the Court might already be acting upon the line that the Committee itself recommended should be adopted. That was that they thought evidence should be admitted if it was relevant and credible and that the previous rule should be abandoned. I imagine that the Committee intended that the Court of Appeal, in future, should admit new evidence under this particular jurisdiction for the purpose of deciding whether it would quash the conviction at once—that is to say, in a case where it has very little doubt but that if the new evidence had been before the jury they would have had some doubt and would have acquitted the person—and should also use the same new rule, the relevant and credible rule, when deciding whether or not to order a new trial. This they would do presumably in cases where they could not be so sure of what effect the new evidence would have had on the jury.

What concerns me is this. I looked at the case of Kelly—this was in fact a court martial appeal, but the same principle applies—and I saw that the noble and learned Lord said that before the Criminal Appeal Act 1964 empowering the Court to grant a retrial, this would have been a hopeless application. In fact, because they were empowered to consider ordering a new trial, the Court dealt with the evidence which it was proposed to lay before it on the proposition that it should be both relevant and credible before it was acted on, and they found that it was not credible. What concerns me is that, if the recommendation of the Donovan Committee is to be implemented, there should not now be any difference as to whether it is a new trial which is concerned or a straight quashing of the conviction. In other words, the passing of the 1964 Act is not the point; it is the adoption of the new rule which the Home Secretary, as he then was, said would be adopted by the Court of Criminal Appeal in the future.

I wonder whether the noble and learned Lord the Lord Chancellor is satisfied that there has been a complete implementation by the courts of the principle which was endorsed by Mr. Brooke in 1964, both on the question of retrial and on the question of the old jurisdiction to quash the conviction, because I have found a little difficulty in seeing that this is quite clear—at any rate, from the trend which appears from the Kelly case. I am sure that this matter can be resolved, if not this afternoon then on another occasion. But it is important, and it gave cause for considerable discussion on the 1964 Bill. There has been time for things to change a little since then, and I should be very glad indeed to know that the situation is now entirely satisfactory. With those remarks I would commend this Bill to your Lordships, and hope that you will give it a Second Reading this afternoon.

4.51 p.m.


My Lords, for several good reasons I shall be short. I have been converted to the view that, on balance, it is desirable to introduce a new constitution in the Court of Criminal Appeal. At the same time, it is fair to recognise that this Court has been in existence for 50 years and, in the opinion of at any rate most of us, throughout all that period has rendered good service to the cause of criminal justice. It is right to point out, also, I think, that in the Report of the Committee it is stated that no lay witness came forward to make any complaints about the Court, or to suggest that it should have any new constitution. The complaint about the Court and the suggestion of a new constitution came solely from the legal profession. I hasten to add that I am not saying that it is any worse for that. But there are those facts.

Moreover, I think it is important, and would be of assistance, to read two sentences from the Report on a matter which is, of course, of considerable importance to the legal profession. The Report says: No witness went the length of asserting that puisne judges sitting in the Court of Criminal Appeal had a bias, unconscious or otherwise, in favour of their brother judge who presided In the case under review. Nevertheless, in case that view is held in any quarter we should say at once that in our opinion it is wholly without foundation. I have, however, been convinced by what is said in the Report that there are good reasons for making the change, and that if the change were made it would constitute an improvement on the present position. One reason, of a rather formal kind, is that it seems more reasonable administratively, or more logically consistent, that appeals in criminal cases should be heard at the same level of the judicial hierarchy as appeals are heard in civil cases; and, therefore, that they should be heard before the new Criminal Division of the Court of Appeal, rather than in an adjunct of one Division of the High Court, which can be said to be the present position.

Secondly, there are some good reasons shown in the Report which have arisen in recent years. The Court is overwhelmed with work; there has been a great increase in the number of appeals and applications for leave to appeal; not infrequently, there have had to be three Courts of Criminal Appeal sitting, and all staffed by Queen's Bench Judges who spend a large part of their time on circuit. The inevitable result of that is that these Courts of Criminal Appeal have had a fluctuating membership, and there has therefore been a lack of continuity and a serious risk of inconsistent decisions being given. Indeed, examples have been set out in the Report of certain rather striking inconsistent decisions. As the Report says, if the new system were instituted, there would be certain improvements in that respect; there would be less fluctuation in the membership, more continuity, less risk of inconsistency and less overloading of that list. So, having regard to those considerations, and also to the proposed new constitution itself, I should be in favour of the change.

I am in favour of the new constitution because, while introducing a true Court of Appeal element into this new Division, in that there will be one Lord Justice sitting in each Court, it also preserves a large—indeed, a predominating—element of the same Queen's Bench Judges, who can speak and consider questions from recent practical experience of themselves trying criminal cases on circuit at the Old Bailey. It was for that reason that earlier I was opposed to the suggestion of a change, because I think it very important and desirable that those who are themselves in the swim, so to speak, who have been recently actually doing the work themselves, should be there to consider whether anything has gone wrong with other criminal trials which have taken place. In view of that new constitution, I support this Bill.

The next two points I want to raise are points of principle, which I think arise on Clause 4(1). I would also agree that this is obscurely drafted, and could be more plain. I realise that it is not in order at this stage to discuss mere points of exact wording, as we are not concerned to-day with the wording but only with more important major points. However, there are two major points embodied in that subsection. As to the first, I am in favour. The first one 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. 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. 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. So, in my view, that change is a reasonable and good change.

The other point, if I have understood this subsection correctly, is one which I think will need very careful consideration indeed, and one that gives me considerable anxiety. I may not be right in my construction of the amendments proposed, but it seems to me, when one reads the other two proposed amendments of Section 4, that it is proposed to weaken what we call "the proviso". The proviso is very important. It has the effect that if it appears to the Court that some particular argument produced by the appellant is a sound argument, but one that has no real merits in it, and that no substantial miscarriage of justice has occurred, then it is open to the Court, in spite of the fact that the unmeritorious point has been shown to be sound as an argument, nevertheless to dismiss the appeal.

As I read the two proposed amendments, it is proposed to make that power smaller, and to diminish the Court's power to act under the proviso. For that purpose one should take the two proposed amendments together. One is to put in the first part of the original Section 4 that it shall be a further ground of appeal that "there was a material irregularity in the course of the trial". The other way in which it is proposed to weaken the proviso is to say that the proviso cannot be applied if it is thought that there was any miscarriage of justice. In other words, it is proposed to omit the word "substantial", which I think is a very important and vital word.

Again, I may be wrong—I hope I am wrong—but the effect of those amendments, as I read them, is that those who appeal to the new Criminal Division will find it easier to rely on purely technical points of an unmeritorious character. They can always say that some irregularity is a material irregularity, and then, when they come to the Court of Criminal Appeal and that Court wishes to apply the proviso, we no longer have the word "substantial", which indicates that a broad, sensible view is to be taken. On the contrary, if any irregularity can be shown to constitute in some way a miscarriage of justice, however small and trivial it may be, then the proviso cannot be applied. I wish to bring that to the notice of those who are responsible, because I feel anxiety on that point and I hope that either it is clear on a true construction, or it will be made clear, that there is no intention of weakening the powers of the Court to act under the proviso to Section 4.

I would mention very briefly the two points which arise, I think, under Clause 4, subsection (2), and Clause 5, under which the existing safeguards against frivolous appeals, although not entirely ceasing, are almost ceasing. Having read what is in the Report, I recognise that it is difficult to uphold those two existing safeguards. There is a good deal to be said against them. But if we eliminate those two safe- guards almost entirely there will be hardly anything left to stop a flood of appeals swamping the Court. If we are going to get rid of those two existing safeguards almost entirely, it is very important to consider what other safeguards we can put in their place. At the present time I have no ideas on the subject myself, but I think it important to consider whether it might be possible to introduce some useful safeguard for this purpose.

5.2 p.m.


My Lords, I regard myself as very fortunate to-day in following my noble and learned friend Lord Pearson and in having this opportunity to congratulate him on having so successfully surmounted the ordeal—and it is an ordeal, I think, to everyone—of speaking for the first time in this House. Having this opportunity to congratulate him gives me particular pleasure because there were present listening to his maiden speech in this House two former members of his chambers when he was a junior member of the Bar. There was my noble friend Lord Conesford, who was senior in those chambers to the noble Lord, Lord Pearson, by a matter of several years. I well remember joining those chambers as a pupil, and the many kindnesses that the noble Lord, Lord Pearson, extended to me as a young and extremely ignorant pupil. I will not say to what degree he is responsible for my legal training and legal knowledge, because that might prove a cause of embarrassment to him, but it gives me great pleasure, as I am sure it does my noble friend Lord Conesford, to have been able to be present to hear Lord Pearson's speech and to have this opportunity of extending my congratulations to him.

I hope that Lord Pearson will frequently participate on future occasions in this House. I hope in particular that he will be present when we come to discuss the Committee stage of this Bill, and will take part in the debates on the points arising on Clause 4 to which he has drawn our attention in the course of his speech. I recollect that the Donovan Committee thought that the omission of the word "substantial" from the proviso would make no difference at all because the existence of that word really had no significance, but I do think that we ought to consider the relationship of that change to the change from "a miscarriage of justice" to "a material irregularity", which I for my part think is the more important change of the two.

My Lords, I should like to join in the tributes that have been paid to my noble and learned friend Lord Donovan and his Committee for the work that they have done in producing this Report. It must have taken them a great deal of labour, and I do think they have produced a very useful Report. Mr. Henry Brooke and I thought that the time had come when the whole working, powers and constitution of the Court of Criminal Appeal should be reviewed, and I am glad that our decision has led to the production of such a valuable Report by the noble Lord, Lord Donovan, and his colleagues. I must confess that I feel some doubt about certain of the recommendations, but I hope that what I am about to say with regard to them will not create the impression that I do not value greatly the work that they have done; and I can assure my noble friend that I agree with the vast majority of the recommendations made.

The first matter the Committee recommends is the transfer of the functions of the Court of Criminal Appeal to the Criminal Division of the Court of Appeal. I am glad that the noble Lord, Lord Pearson, drew attention to the passages in the Report indicating that there have been no criticisms at all from members of the public or laymen of the functioning of the Court of Criminal Appeal. Such criticism as there has been has come more from lawyers, and I personally have never felt it had all that amount of substance in it, particularly when you remember that the vast majority, I think, of appeals and applications for leave to appeal which came before the Court of Criminal Appeal did not come from cases presided over by High Court Judges but from cases which were dealt with at quarter sessions.

The change that is proposed will at any rate remove that ground of criticism, whatever weight should be attached to it, but what bothers me is the fact that, so far as I can see, the heavy burden now borne by the Judges of the Court of Criminal Appeal will simply be trans- ferred, not entirely away from Judges of the High Court and not at all away from the Lord Chief Justice, but transferred also on to the shoulders of some of the Lords Justices. I must say I feel very concerned about the weight of that burden. One sees from the Report that, compared with pre-war, there has been a fivefold increase in the number of cases coming to the Court of Criminal Appeal. In 1963 there were 22,000-odd convictions on indictment and 26,000 sentences passed from which appeals might have been brought to the Court of Criminal Appeal. If my mathematics are correct, there were in that year 2,927 applications for leave to appeal and appeals, and that figure compares with some 600 in 1938. Is that number of appeals and applications for leave to appeal not likely to increase and to go on increasing, and does that not mean that the already heavy burden borne by Her Majesty's Judges will become increasingly heavy? I feel very anxious about that, and I must say that I see nothing in this Report, apart from the transfer of responsibility from some Judges to others, which will contribute to the alleviation or to the prevention of the increase of this heavy burden of work which now falls on Her Majesty's Judges.

In that connection I want to say something in reference to the recommendation that the power to increase sentence should be abolished. The noble and learned Lord the Lord Chancellor said that he agreed with that recommendation. I also agree with it to some extent. I certainly think that the power to increase sentences is most sparingly used, but I feel that under the present law it is rather an unsavoury trap for a man who is appealing against his sentence, in the hope that he will have it reduced, to find when he comes to the Court that the Court are really hearing his application because they intend to increase his sentence. I think that is wrong.

I should like, however, to approach this matter on a somewhat broader basis. Should not the Court of Appeal, a High Court, have power to increase a sentence when it appears to them that the sentence passed by the lower court is obviously and clearly wrong? I should have thought that that Court ought to have that power and, furthermore, that the right to exercise that power should not depend upon whether there has been an application by the accused to appeal against sentence. I think it is archaic and anomalous to preserve the distinction between appeals against conviction and appeals against sentence, giving the Court different powers, depending upon which kind of appeal it is. If there is an appeal against conviction, I can see no reason why the Court should not have the same power as they have on an appeal against sentence to do what they think right.

I am confirmed in the belief that that is the change that ought to be made by the fact that this has been the position in Scotland since 1926, and in Northern Ireland since 1930. I know of no criticism of the Scottish Courts having that power, or of the Northern Ireland Courts having that power; and, while I would certainly do away with the right to increase sentences where an appeal is lodged against a sentence in the hope that it will be reduced, I should like to see this new Court of Appeal, of higher status, given a power, on any appeal, to review the sentence: to increase it if they thought fit, or to reduce it if they thought fit.

When one reads this Report of the noble and learned Lord, Lord Donovan, one finds that he quotes the words written by Lord Darling in 1928: Inadequacy of punishment for criminal offences is as great an injustice to offended society as is undue severity unfair to him who has to bear it… It is interesting to read that Lord Darling at that time expressed the view that on every appeal the Court should be empowered to revise the sentence itself, whether the convict has asked it to do so or has cunningly refrained. I hope that it is not too late to ask that that point should be considered in relation to the courts of this country.

The argument put forward in the Donovan Committee Report is that if that power is given, it may discourage some people from bringing meritorious appeals. I do not myself regard that argument as very convincing. People can get good advice now—there is legal aid —and they should assess their prospects; if they decide to take a chance and appeal, and if then it is clear that the sentence imposed on them has been unduly light, I cannot see why it should be thought that this Court of Appeal should not have the power to put that sentence right and to remedy the "injustice to offended society." It seems to me that if the Court of Appeal are not able to do that, the scales are tilted too much, not in favour of the accused person, but in favour of the person who has been convicted.

I do not put forward this argument on the ground that it may discourage appeals; I do not take that point at all. I take the view—and on this I go further than the noble and learned Lord who sits on the Woolsack—that you ought not to use the power to deprive a man of his liberty as an inducement to him not to exercise his right to appeal. I know that the Donovan Committee recommended that the period spent awaiting an appeal shall count towards sentence unless the Court of Appeal say it should not, and the inference is that the Court should say that it should not because the appeal is frivolous. What does that mean? That means that the Court of Appeal will, in fact, be extending a man's sentence, depriving him of his liberty, keeping him in prison, not because of any criminal conduct but because of his foolishness in bringing an appeal which they consider frivolous.

I am afraid that I do not agree with my noble friend Lord Colville of Culross about the need to keep this matter under review, with a view to increasing the possibility that persons awaiting the hearing of their appeals will not have the time spent in prison counted towards their sentence. Since 1962, I think it is, we have made provision that periods spent in prison awaiting trial shall count towards sentence. It seems to me wrong that the Court of Appeal, as proposed by this Bill, should have the power to increase a man's sentence, to keep him in prison—for that is what it means—just because they take the view that the appeal should not have been brought.

One reason for this rule was that prisoners awaiting hearing of an appeal were given especially favourable treatment. I do not know to what extent that is true to-day; though I think it is true to a greater extent than the noble and learned Lord the Lord Chancellor indicated. I think that they get facilities to write many more letters. I should be in favour of saying that if the period awaiting an appeal is to count towards their sentence, they should not get any privileges just because they have appealed, apart from the privilege of having all the necessary facilities for the preparation of their appeal.


That is all they get.


No, my Lords: I think they get the freedom to write many more letters. I do not want to go into this matter in detail, but from the Donovan Committee Report there are indications that a number of prisoners put in applications for leave to appeal, and give notice of appeal, solely for the purpose of getting these privileges. The point I am seeking to make is that if we are going to count towards sentence the period spent in prison awaiting the hearing of the appeal, or an application for leave to appeal, it seems to me to be inconsistent with that that the prisoner should enjoy any advantage, apart from the advantage of facilities necessary for preparing his appeal.


My Lords, may I ask the noble and learned Viscount a question? Does it not follow, from what he has said, that if the appeal is allowed the person kept in prison will have been kept there under rather severe conditions unnecessarily?


The noble Lord says "rather severe conditions". I do not think that is necessarily so. Obviously, if a man is sentenced to imprisonment and does not get bail, he will be kept in prison in the ordinary way. All I am saying is that if he is to have that period counted against his sentence, as I think it should, it seems to me that he should not have privileges other than those necessary for the preparation of his appeal.


My Lords, I hesitate to interrupt my noble and learned friend. But, as I understand it, the difficulty is that the four or five prison rules which deal with this matter are ostensibly such as to give privileges for the purpose of preparing the appeal and for no other purpose. What happens in practice, I think, is that they are sometimes misused, without it necessarily being apparent at the time that they are being misused, and are not being used solely for the purpose of preparing the appeal.


My Lords, before the noble and learned Viscount answers that, I would say that I could not possibly accept what the noble Viscount, Lord Colville of Culross, has said, because that means that to a large extent the prison officers and governors are being bamboozled in this way and I do not believe that in the case.


My Lords, may I now resume my speech? I am grateful for the intervention and the little time that I have had to consider what further points I shall try to make as shortly as I can. If a deterrent against frivolous appeals is necessary, and it may well be, I think we ought to put out of our minds the question of extending the length of time that people stay in prison as a deterrent. It seems to me that when you really examine it you simply cannot justify it. You are not punishing a man for his crime or holding a threat of imprisonment over him for his crime. You are merely seeking, if this is the argument, to deter a frivolous appeal by saying, "If you appeal frivolously you will stay in prison longer". I feel that if we are to have a deterrent to prevent a flood of appeals—and I think that there is a very real risk of that—we shall have to look for it in some other way.

I do not find it easy to see what deterrent there could be and that makes me think whether we should seek to devise a system whereby frivolous and unmeritorious applications and appeals could speedily be weeded out from the others. When I look at the figures of convictions in a year and of the sentences, I must say that I wonder when the limit of the increase of appeals in criminal cases will be reached. If sentences are not likely and cannot be increased by the Court of Appeal, if all that is to happen is either that the conviction will be upheld or quashed, then there is a very real risk that every single person sentenced to a long term of imprisonment will appeal to come before the Criminal Division of the Court of Appeal. After all, he will have nothing to lose, and so I think that there is a very real risk that the burden of this work on Her Majesty's Judges will appreciate considerably.

We ought to try, even now, to think of some way in which, as I say, the unmeritorious applications and appeals can be weeded out. I wonder whether it is really necessary that a Judge should have to consider which are frivolous and which are not. I quite agree that the function of determining an appeal or application which has any merits at all must be a function of one of Her Majesty's Judges.

But surely any barrister or solicitor of experience, on looking through and reading the applications and the notices of appeal, would not find it difficult to say that these ones are clearly frivolous, these ones have some merits, and these are obviously substantial points. I should like it to be considered whether you could not enlarge the staff of the Criminal Division of the Court of Appeal, have some more Assistant Registrars and give them power to say, in relation to applications and appeals which were clearly frivolous, that they were frivolous, and give them power to refuse to allow those proceedings to go forward. It is true that you would not have a deterrent to the starting of appeals, but you would have a filter which would operate at an early stage, and that I think would contribute to alleviating the increasingly heavy burden which I fear is hound to fall on the shoulders of Her Majesty's Judges unless something is done.


My Lords, would the noble and learned Viscount have an appeal against the decision that an appeal was frivolous?


My Lords, I do not think I should because once you do that you have the same chain on. But I certainly think that in any case of doubt the Registrar could show that to a single Judge, and if need be the Judge could himself say if he thought it was doubtful. But I do not think we want a formal chain of appeal in this connection because we shall have the same situation over again and everyone exploiting it. I think we are in the difficulty that, unless we accept that there should be a power to send to prison, or keep a person in prison because of a frivolous appeal, the flood of appeals may become overwhelming. If you reject that, then I think you are driven—this is my present thought—to thinking of an alternative system whereby you can relieve the Judiciary of some of the burden. The only way I can see that being done is by giving Registrars powers which, after all, would not be wholly dissimilar to the powers exercised by Masters of the High Court in certain cases of saying that this application is frivolous and has no merit.


My Lords, I would remind the noble and learned Viscount that there is an appeal from the Master as a matter of course.


My Lords, I am aware of that. I am not seeking to provoke interventions. I would merely point out to the noble Lord that if once you do that in the criminal field, where there is no penalty of costs to be incurred, you may as well not have it at all.

I have drawn attention—I hope that I have not spoken for too long—to what I believe are two very serious matters in relation to the hearing of criminal appeals. I should like to see the Court of Appeal having a general power to increase sentences and to reduce sentences whether or not there is an appeal against sentence. I am not at all in favour of the Court of Appeal having power to say that the time spent before the hearing of an appeal shall not count towards a man's sentence, so that he will stay in prison longer if the Court of Appeal thinks that his appeal is frivolous or unmeritorious. My Lords, apart from those two main points I am substantially in agreement with the proposals contained in this measure, and I hope that we shall be able to explore these points and the points made by my noble and learned friend Lord Pearson more fully during the Committee stage.

5.29 p.m.


My Lords, may I begin by voicing no fewer than three sets of congratulations. First, may I add my congratulations to the noble and learned Lord, Lord Pearson. I certainly hope that we shall hear him many times, not merely on this Bill but on many other matters, because I am sure that he has a great deal to contribute to the deliberations of this House. Secondly, may I add my congratulations to my noble and learned friend Lord Donovan and all the members of his Committee for their most excellent Report, which I for one wholeheartedly support in almost all its recommendations. Thirdly, may I voice my congratulations to the Government for finding time to deal with this Bill, which, from my point of view, is a matter of urgent importance.

Having said that, I am afraid (and I know that the noble and learned Lord the Lord Chancellor will forgive me for saying so) that I do not wholly approach the matter in his way, and I do not wholly agree with certain alleged criticisms of the Court of Criminal Appeal. But I do welcome this Bill and, if I may, I will give my reasons in my own words. The Court of Criminal Appeal, constituted in 1907, until comparatively recently had a mere fraction of the applications and appeals with which it now has to deal. Indeed, for years and years one court sitting on a Monday only was fully able to cope with all the work. The position to-day is that the number of applications has increased; and not only the number but their complexity—these long conspiracy cases, lime frauds and the like—so that there really is enough work for two Courts to sit almost continuously, and on occasions three Courts.

As your Lordships know, there are not at any one time in London enough Judges to man two Courts continuously. It would mean six Judges being occupied all the time. The result is that the work can only be kept under control by one Court sitting continuously, and then from time to time having perhaps three or four Courts at a time, when Judges have returned from circuit and there are a great number in London. The effect of that, inevitably, is that not only are there occasions when there are four presiders, because there are four Courts, but because Judges change in their rota going out on circuit, those four Judges will vary from term to term. Therefore, it is possible that all the Queen's Bench Judges—at any rate, all the senior Queen's Bench Judges—will in time take their turn at presiding. I say that because I think this is the only valid criticism of the Court of Criminal Appeal as it exists to-day. It is the multiplicity of presiders as a result of which you cannot get the consistency and uniformity which is so desirable.

Under this Bill two things are achieved. First, it will be possible to have two Courts sitting almost all the time; and secondly, the presiders will be much fewer in number, and can consult together and adopt a consistent policy, whether it be on sentencing or on the approach to conviction. That is the first point I would make.

The second point is that I think the Bill introduces a happy compromise between two contending views. There are those who say that members of a Court of Appeal dealing with crime should be, as in civil cases, as it were remote from trials and the atmosphere of trials. On the other hand, there are those who say that in crime, at any rate, and when one is dealing with sentencing, it is imperative that there should be on the Court the knowledge and experience of those who are currently trying cases, travelling about the country and seeing the conditions from place to place. This Bill, as I say, enables a happy compromise to be achieved whereby in each Court there will be at least one Judge of superior status—if I may put it that way; of appeal status—and at least one Judge who is currently trying cases and has the necessary experience and knowledge.

Thirdly, the suggestion has been made, and is made from time to time, that as at present constituted the Court of Criminal Appeal less readily interferes with trials where Judges have presided, as opposed to those where chairmen or deputy chairmen of quarter sessions have presided. The Donovan Committee, in their Report, have completely exposed that suggestion as quite unjustifiable: and, indeed, if one looks at the figures, it is perhaps rather remarkable at first sight, but in fact they show that the Court has been more ready to interfere with trials presided over by Judges than trials presided over by others. Looking at it a second time, I think one finds that that is perhaps only natural, because they would lean over backwards to avoid being accused of favouring their brother Judges. Still, there is that suggestion, and it is one that is made from time to time. It is a natural suggestion to come from the layman, and many would say: "Well, let justice be seen to be done." Under this Bill it will be possible to constitute a Court with at least two members of superior status sitting in judgment in connection with a trial presided over by a trial Judge. In those circumstances, that possible criticism is met.

Lastly, my Lords, this Bill gives what I may call a face-lift to the existing appellate court: it puts them into a division of the Court of Appeal. Not only will the Court have the benefit of being manned by many members of that Court, but it will be part of the Court of Appeal, a Court than which there is none with any higher reputation in the country or in the world.

This Bill gives the opportunity to clear up legislatively a number of matters which for years have required to be dealt with. A small matter is that the time within which to apply for leave to appeal is laid down in the existing Statute as ten days. Ten days is obviously too little, and the Court for years has extended the time in proper cases. But instead of its being left merely to the direction of the Court to extend the time, there is the opportunity to enlarge the time, as the Bill proposes. To take another example, there is the very necessary power that is given to remunerate witnesses who are brought to the Court.

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 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. That, and a number of other matters of detail which will give the practice of the Court legislative sanction, now appear in this Bill.

As to the criticisms, there is undoubtedly room for criticism at the abolition of the power of the Court to increase sentences. I fully appreciate that it would be a great advantage for a Court of Appeal dealing with criminal cases to be able to raise sentences in such a way as to secure a general uniformity of sentences throughout the country. I appreciate that it would be most valuable, particularly in the age in which we now live, to see that the criminal does not get off too lightly. Those matters I fully appreciate; and if the continued existence of the powers that we have could possibly achieve either of those objects, I should be violently against Clause 4(2) of the Bill. But the real trouble to-day is that the incidence of the exercise of such powers as we have is completely capricious.

I took out the figures for ten years—1955 to 1965. They show that during those ten years (these are round figures) a quarter of a million sentences were imposed at assizes and quarter sessions. During those same ten years there resulted 17,200 applications for leave to appeal involving sentences. And in that same period of ten years, 30 sentences only have been increased. That is, an average of three sentences in a year, or 0.17 per cent. of the applications, let alone what percentage it would be of the total sentences imposed. The reasons, of course, as has been pointed out, are, first, that none of the 250,000 prisoners who have been sentenced will apply for leave to appeal if they have received a lenient sentence; and, of the cases that do come before the Courts, in those where the sentence is thought to be lenient, leave to appeal is given and counsel is instructed to appeal for the appellants, with the result that when the appeal comes on it is abandoned. It is a fact to-day—and this shows how capricious the situation is—that the only prisoner who has his sentence increased is either the completely obstinate prisoner who will not take counsel's advice, or the unfortunate man with an inexperienced counsel who does not realise what is going to happen. That is all so unsatisfactory that, quite clearly, the existing power in the Court is one which serves no useful purpose and, indeed, is rather abhorrent to one's ideas of justice.

Whether something can be devised is quite another matter. I personally think that if one wants to deal with this the only possible way is to give the prosecution—the police, or the Director of Public Prosecutions—power, perhaps with leave of the Court, to appeal themselves. In that way I think that one could achieve the consistency of sentencing throughout the country. But that is a very major question; it would require very careful consideration. At first sight, it is contrary to all our ideas of justice, since in this country the prosecution have never taken any active part in the question of sentencing.


Before the noble and learned Lord leaves that point, might I ask whether he would be in favour of allowing the Court to have power to increase sentence where the appeal is against conviction?


I rather sympathise with the suggestion that the distinction between appeals against conviction and those against sentence should be avoided. It seems to me that the real difficulty is that one would still find that it would be such a small percentage involved. If one takes ten years and 250,000 convictions and sentences, it means something like 10 per cent. of all people tried at assize and quarter sessions who at the moment apply for leave to appeal. Therefore, although you would enable the power to be exercised more often within the realm of that 10 per cent., it would not touch the other 90 per cent. who never appealed at all.

When one comes to Clause 5 I, for one, would strongly retain it, and retain it in its present form. It does no more than put the position the other way round. The position at the moment is that a great number of people, whether their appeals are frivolous or not, are, if one may use the word, being punished "extra" by losing time. This is merely saying that they shall not lose time unless the Court looks into the matter and says that they should. That, as it seems to me, is a perfectly right approach. The only slight quarrel I have is with the idea as to punishing the frivolous applicant. It results in his punishment, but I venture to think that the reason for making him lose time is that he is depriving others who have a perfectly justified ground of appeal from having those appeals heard. He is delaying the whole machine unjustifiably.

The other comment I would make on Clause 5 is that it is bound to be wrapped up with whatever is done in connection with legal aid. If the recommendations of the Widgery Committee are adopted, then every prisoner will receive advice by counsel on his chances in his appeal. If he is told firmly by counsel, "You have not a hope", and he goes on, then I do not see why he should not lose time. But if he is advised by counsel to go on and fails, then the Court would not think of making an order that he should lose any time. In fact, as I see it, a prisoner always ought to have, as it were, one bite, either as at present, the view of the single judge, or, as I should hope in the future, the advice of counsel. If he goes on in spite of that advice, then I think he should be at risk of losing time. As I see it, that is the only safeguard that could be employed to prevent the machine from being completely flooded.


My Lords, I beg to move that the House do now adjourn during pleasure for the Royal Commission.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned during pleasure.

House resumed.