HL Deb 12 May 1966 vol 274 cc840-53

6.11 p.m.

Debate on Second Reading resumed.


My Lords, I should like to join with those in your Lordships' House who have expressed praise in regard to the work of the Committee presided over by the noble and learned Lord, Lord Donovan. I feel, as other noble Lords have felt, that the Report that they have presented is an extremely valuable, comprehensive and thoughtful Report. I sometimes wonder whether the public have any real appreciation of the work done by the Court of Criminal Appeal, and of the immense burden—a burden not only of responsibility, but of labour—that devolves upon the noble and learned Lord the Lord Chief Justice and upon his colleagues who sit in that Court. Those sitting on a Monday probably have to devote the entire weekend to studying the transcripts of the cases that they are to consider. Those sitting on the other days likewise have hours and hours of hard work out of court in order that they may properly discharge their duties.

It has been so valuable and important that it has been brought out in this debate in your Lordships' House, that the changes now proposed are not being made as the result of any serious criticism of the way in which the Court of Criminal Appeal has in all the past years discharged its duties. Though the work that devolves upon the Judges has indeed been heavy, how well worth while it has all been? Some of us have the privilege from time to time of sitting in the Judicial Committee of the Privy Council and hearing applications for leave to appeal, and hearing appeals in criminal cases, from various parts of the Commonwealth. Sitting to hear those applications and those cases one discerns the great respect in which the Court of Criminal Appeal, sitting in London, is held throughout the Commonwealth. They not only lay down principles, they not only decide questions of law, but I think it is right to say that they set the tone for the administration of the criminal law in far-flung parts of the English-speaking world. They have created, in all that sphere, an image of fair play and fair dealing.

It might well have seemed illogical in 1907, when the Court of Criminal Appeal was established, that it should be manned by Judges of the King's or Queen's Bench Division who would be sitting, quite often, to consider the work of their colleagues in the Division. As a rule, appellate work is heard by Judges who normally and regularly sit in an appellate court. But, in spite of the way in which that might have seemed to be illogical, I think it is important to remember that the careful inquires made by the Donovan Committee have not revealed anything seriously amiss. My noble friend Lord Pearson made one quotation from the Report. May I just make another, from paragraph 15: The structure of 1907 was, and remains, sound. No member of the public, and no lay body, came before us and criticised either the constitution of the Court, or the way in which it discharges its duties within the limits of its powers, as the court has conceived those limits to be. The criticism was of some of the powers themselves, and of the Court's interpretation, in certain instances, of their extent. Nor did any witness from the legal profession criticise the probity of the Court or call in question the sincerity of its efforts always to do justice. One heard at one time vague suggestions as to whether appeals coming from some courts were not examined as critically as appeals from other courts. Any such suggestion has been proved to be completely false and without foundation. In another part of the Report it is said No witness went to 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 in our opinion it is wholly without foundation. There is no evidence whatever that judges of the court have any hesitation in correcting a brother judge who they consider has given an erroneous ruling or gone wrong in a material respect in the conduct of a trial. If it were otherwise, one would expect to find it reflected in the proportion of appeals from quarter sessions which are allowed as compared with the proportion of appeals from assizes which are allowed; but there is no appreciable difference. So the conclusion of this powerful and influential Committee was, after careful inquiry, that there was nothing seriously amiss and I think it is right that it should be known that the changes now proposed are not suggested on the basis of setting right things that were wrong, but on the basis of trying to make better something that was already good.

At this stage of the debate, I will confine my observations to just one or two points. I welcome the introduction of the words "unsafe and unsatisfactory", but I was very glad to hear the noble and learned Lord the Lord Chief Justice say that the Court of Criminal Appeal had always proceeded on the basis of those words. I had always so understood, but I am sure that in all past years the approach of that Court has been not to allow conviction to stand if it was thought, "It is unsafe to have this man convicted and detained in prison— it is not satisfactory."It may well be that the wording is now improved as compared to the wording that previously existed, but I respectfully agree with the Lord Chief Justice that this is not a change in the approach of the Court.

I wish to ask about the attitude of Her Majesty's Government on one point. In 1964 your Lordships considered the question whether extended powers should be given to the Court of Criminal Appeal to order new trials. This matter has been a controversial one for many years. As the noble and learned Lord, Lord Donovan, said in his Report, it was not for his Committee to go into this matter; it had recently been considered, and whenever it had been considered there was not unanimity. I think that in your Lordships' House a Division resulted in a majority of one. I believe that when the Bill went to another place no Amendment was in fact moved. It is, therefore, admittedly a controversial matter. It may be that Her Majesty's Government feel that the present is not the opportune time to raise the matter again, but the emphasis in more than one place in the Act as it now stands, and in the Bill which will amend the present Act, is upon the interests of justice and upon miscarriage of justice.

Under the 1964 Act, if new evidence is either admitted or available the Court of Criminal Appeal has power to order a new trial, if the interests of justice so indicate. The new powers, under Clause 4, require the Court to allow an appeal as to whether a verdict should stand, first, if it thinks that the verdict of the jury is unsafe or unsatisfactory; secondly, if there is a wrong decision in law; and thirdly, if there is a material irregularity. May there not be some cases—cases in which there has been some irregularity, some irregularity that could be called material; some wrong decision of law, or an inability to invoke the proviso, whether in its existing form or proposed form—in which it would be fair and in the interests of justice that there should be a new trial? The very measure of confidence that has been reposed in the Court of Criminal Appeal would indicate that, if there is this power, it would doubtless be exercised sparingly and would be exercised (for it would be in the discretion of the Court) only when it was thought fair and reasonable to do so. I should like to raise that inquiry, as to whether Her Majesty's Government think it right to consider that matter afresh, at a time when Parliament is dealing with a Bill relating to the powers of the Court of Criminal Appeal.

The early parts of the Report of the Committee would perhaps have led one to the view that there was no strong case made out for any change. But the later parts of the Report, I think, show that there is much to be said for having a consistent policy and for having it laid down by a Court with all the authority of the Court of Appeal. The fact that that approach commends itself to the noble and learned Lord the Lord Chief Justice persuades me that it is, on the whole, a good thing to make this change. There are other matters which have been touched upon which may be considered at another stage, but, in general, I add my support and welcome to this Bill.

6.25 p.m.


My Lords, after the very eminent Judges who have spoken it would be wrong for me to detain the House for more than a few minutes, but perhaps I might start by adding my warm congratulations on his maiden speech to my old friend Lord Pearson. My noble and learned friend Lord Dilhorne has already indicated that I had been in chambers some five years when he arrived there. I can only say for all those who knew him then that his subsequent distinguished legal career did not surprise them at all. When I think of how many I saw pass through those chambers to the Woolsack, to the ranks of the Lords of Appeal in Ordinary, to the Court of Appeal and to the High Court, I think perhaps it is my duty to disclose to the House that it is not my present intention to write my reminiscences.

I think that the discussion on this Bill, which has been generally welcomed, when it reaches the Committee stage will be mainly, as has been clearly indicated, on the provisions of Clause 4. On that some very important observations have been made by many of the Law Lords who have spoken; and I very much hope that the points raised will be thoroughly considered in Committee and that Lord Pearson will be present to take part in those discussions.

I myself will add only two things. The first is about the proposed addition, in Clause 4(1) (a), of the words "unsafe and unsatisfactory". That has been generally approved by, I think, every speaker. But nobody has pointed out by whom those words were first used. I was very glad that the noble and learned Lord, Lord Donovan, for whose admirable Report I should like to add my congratulations, brought out in paragraph 146 and the following paragraphs that those words were proposed at the time the original Bill to establish the Court of Criminal Appeal was going through Parliament. They were proposed from the Conservative Benches in the House of Commons by F. E. Smith and, although that is admirably brought out in the Report, I think it is perhaps worth recording on this occasion.

I now come to the other matter about which I should like to give my own reaction to the Report, which I carefully read. I thought that the discussion in the Report of the noble and learned Lord, Lord Donovan, in which the arguments were most equally balanced, was on the problem of whether there should be a power to increase the sentence. I am not convinced that the proposal to abolish that power is wise, though I do not wish to commit myself at this stage to either view. I listened with very great care to what my noble and learned friend the Lord Chief Justice said about how very rarely this power had been used, but that does not seem to me at all conclusive. If it is used very rarely but in very notorious cases where the sentence has been wrong, that may have, I should have thought, some educative effect on the lower courts. However, I do not wish to say more on that, except that I think the matter needs most careful consideration when this Bill reaches Committee.

6.30 p.m.


My Lords, perhaps I might, as a chairman of quarter sessions, add a word in this discussion. We have had speeches from very eminent Members of your Lordships' House on the Judicial side, who have of course been promoted from the ranks of the working Judges and who have dealt with criminal trials with juries in the courts. As a chairman of quarter sessions, I am very happy indeed—and I am quite sure that I am reflecting the views of the vast majority of my colleagues—to welcome this Bill and to add my tribute to what has already been said about the Report of the Donovan Committee.

I was interested to hear the noble and learned Lord, the Lord Chief Justice, say—and his view was reinforced by the noble and learned Lord, Lord Morris of Borth-y-Gest—that the researches of that Committee had shown that, if anything, quarter sessions came out rather better than High Court Judges at the hands of the Court of Criminal Appeal. I am sure there is not very much in it, but it may be that the slight balance in favour of the courts of quarter sessions is due to the fact that there one has the advantage, particularly in the sentencing, of very experienced magistrates. It has always seemed to me, when discussing problems of sentences with my fellow magistrates, that I have a tremendous advantage over the normal judge who goes on circuit and has to make up his mind on these extraordinarily difficult problems. From many points of view, problems of sentencing are much more difficult than problems arising out of the actual substantive law, and it is a tremendous advantage to have a number of experienced men and women, experienced in the ordinary affairs of life, to help one in deciding, what is the proper sentence to mete out to the prisoner who has just been convicted by the jury.

In spite of what has been said about the work of the Court of Criminal Appeal over these last years—and, by and large, undoubtedly the Court has done spendid work—it is perfectly clear, from what the noble and learned Lord, the Lord Chief Justice has said, that there were a number of very obvious defects in the arrangements, particularly those which underlined the difficulty of manning the Court—Judges going on circuit—and making matters very difficult, indeed. Undoubtedly, this Bill will result in a substantial improvement in the arrangements. in that the Court of Appeal will not be in this difficult position.

I think, also— and this is a matter which comes to the notice of those of us who are not necessarily judges in courts of quarter session, but who teach the subject of criminal law in the law schools—that there has been a certain unevenness in the work of the Court of Criminal Appeal, because of this difficulty of staffing. Judges who have had very little experience of the work of administering the criminal law are often available, and may take their seats in the Court of Criminal Appeal. Undoubtedly a certain unevenness in the laying down of the rules of substantive law, which has been noted by many eminent professors of criminal law in the universities, is largely due to that fact. So that this Bill, by putting the administration of the criminal law into the hands of Judges who are sitting permanently and who will soon become specialists, if they are not already, will certainly lead to a quite pronounced improvement in that way. This patchiness will disappear.

I agree with the noble and learned Lord, Lord Morris of Borth-y-Gest, that in the Commonwealth the work of the Court of Criminal Appeal has been followed with very great attention, and usually with approval. But there have been quite a number of cases, particularly in recent years in Australia, when the very distinguished Judges who now sit in Australia—notably Sir Owen Dixon, who was until recently Lord Chief Justice, and who is regarded by many as one of the greatest common lawyers of the present century—have found it necessary to point out what they regarded as the defects in the work of our Court of Criminal Appeal. I think that the new arrangements should enable us to get over that, and it seems that this will be a very great advantage.


My Lords, would the noble Lord not agree that Sir Owen Dixon's criticisms were not of the Court of Criminal Appeal, but of the Law Lords in your Lordships' House?


I should say both, my Lords. The Law Lords in your Lordships' House have, on the whole, graduated from the Court of Criminal Appeal, and I think I could find one or two cases covering the Court of Criminal Appeal. At any rate, this is very right and proper, and one of the really splendid things about the growth of the Commonwealth in recent years has been the fact that we have Judges of distinction and outstanding ability.

I found myself to a considerable extent in agreement with some of the remarks of my noble friend Lord Conesford in regard to the question of increasing sentences, even if the power has not been much used. I have no doubt whatever that a very large number of prisoners would have made applications for leave to appeal if it had not been that they felt there was a danger of an increased sentence. I am afraid that there will be a flood which it will be very difficult for the new Court to handle if, as the noble and learned Viscount, Lord Dilhorne, said, some sort of arrangements cannot be found for checking this.

I also have a slight qualm about the removal of the word "substantial". On the face of it, and immediately, it seems that if there is a miscarriage of justice a conviction ought to be quashed whether or not the miscarriage is "substantial". But there are cases where there is a miscarriage of justice of a rather trivial character; and it would be a mistake (and I hope the new Court will take a common sense view of the matter), if the Court found that there had been a miscarriage of justice, although of a rather trivial character, to put the emphasis on the triviality rather than on the miscarriage of justice. But, in effect, what has been done by the Court of Criminal Appeal in the past, where there has been a real miscarriage of justice, is that the conviction has been quashed. I do not think too much importance should be attached to the word "substantial", and I am rather sorry to see that it will disappear. But by and large this Bill will undoubtedly bring about a very great improvement in the arrangements for the administration of the criminal law in this country, and I hope that it will go through fairly rapidly.

6.39 p.m.


My Lords, I am extremely grateful to all noble Lords who have taken part in the debate, and particularly, if I may say so, to the noble and learned Lords of Appeal, whose advice on a law reform Bill which has nothing to do with politics is of the greatest value to us all. I was particularly pleased, of course, to hear from the noble and learned Lord, Lord Pearson, and glad that he should have given us the benefit of his opinion on the questions raised by this Report. I hope very much that we shall often hear from him in the future.

The noble Viscount, Lord Colville of Culross, first of all raised an awful question about Parliamentary drafting. The fact is that I shall be delighted to have a private conversation with the noble Viscount about it, but this is a very delicate subject. We have, after all, a very old school of a particular kind of Parliamentary drafting by men of the highest possible ability; but the Law Commission are at the moment considering what are really two sides of a coin. One is Parliamentary drafting and the other is the interpretation of Statutes. I think that these questions are among the most important which we may at some time have to consider. But the subject is a difficult one, and I should prefer to say no more about it at this moment. I am sorry I did not refer to Clause 7 on the expenses of witnesses, but I quite agree as to its importance.

As to time of appeals counting against sentence, the noble Viscount hoped that this would be only experimental, because he feared the Court might be flooded out with appeals. I think the main point was that which was touched on by the noble and learned Lord the Lord Chief Justice, and it is this. The main reason why there are as many appeals as there are now is that we have a first-class system of legal aid in criminal cases until the man leaves the dock. Then the whole thing completely breaks down. The barrister who appeared for him and the solicitor who acted for him are under no obligation to advise him whether he has any chance on appeal or not, and he can get no legal aid at all unless he gets leave to appeal. But his difficulty is to get leave to appeal without legal aid.

Most of the notices of appeal are filled in by these men themselves, as they have to be, sometimes with the aid of a sea-lawyer prisoner; and, of course, they do not know what is a ground of appeal and what is not a ground of appeal. What is urgently needed is legal advice at that stage, as to whether they have any chance on appeal or not. This, I think, will do more than anything else to reduce the present number of appeals. Of course, the period of ten days during which a notice of appeal can be given is in any case too short. That is being extended by the first paragraph to the Second Schedule of the Bill. I am not in a position yet to state what attitude my right honourable friend the Home Secretary will adopt towards the Report (which personally I would describe as an admirable Report) made by the Committee of which Mr. Justice Widgery was the Chairman, which is a Committee which has gone very fully into the whole question of legal aid in criminal cases.

My Lords, I agree with the noble and learned Lord, Lord Pearson, that criminal appeals ought to be on the same level in the judicial heirarchy as a civil appeal. I do not know whether the noble and learned Lord will remember, but a little time ago a number of appellate judges came here from the United States for a week or two, looking at all our Appeal Courts. I happened to see some of them at the end of their visit, and I asked them what had struck them most in what they had seen of the English system. They said, "The thing which struck us most was that all your judges seem to think that criminal appeal work is rather inferior work, and nothing like as good or respectable as civil appeal work; whereas we, doing both civil and criminal appeals, always think that criminal appeals—where, after all, a man's liberty is at stake—are much more important than civil appeals, which are, in the main, only about money".

I appreciate that there is a difference of opinion about the wording of Clause 1, and particularly the word "substantial". It may be that we shall be considering this at the Committee stage. It shows the difficulties when the noble and learned Lord, Lord Pearson, says that he regards the word "substantial" as a vital word, whereas the Donovan Committee, in paragraph 164 of their Report, say: It seems to us to be devoid of practical significance". So, obviously, there is a wide difference of opinion as to what is the effect of the word "substantial". The noble and learned Viscount, Lord Dilhorne, does not agree with the abolition of the power to increase sentences. This is a question of time, but I would venture to hope that before considering an Amendment he will re-read the 21 paragraphs in which the Donovan Committee consider the pros and cons of this point before unanimously recommending that it should be abolished.


My Lords, if the noble Lord will forgive me, he has not quite put what I said. I entirely agree that the present right to increase the sentence on an appeal against sentence should go. The part I disagree with is that there should be no power to increase the sentence on an appeal against conviction. I think that our system should be brought into line with that of Scotland and of Northern Ireland.


This was not a point expressly dealt with, I think, by the Committee. As to time, if he will forgive me for saying so, it really is not the case that there is any material difference between the conditions under which a man serving his sentence is confined and those under which a man awaiting appeal is confined, except for the purposes of the appeal. The original rule expressly referred to what were called "the special privileges of an appellant", but the Report itself says: The special treatment accorded to an appellant in pursuance of Rules 57 to 61 of the Prison Rules 1964 means no more than that he is allowed additional letters and visits for the purposes of his appeal and is entitled to be examined in connection with the appeal by a doctor of his choice. That is all that it now comes to.

The noble and learned Lord the Lord Chief Justice regards the Bill as a happy compromise, and I would respectfully agree. I thought, if I may say so, that his support of the recommendation that the power to increase sentences should be abolished by the figures which he gave was of considerable assistance to that view. The noble and learned Lord, Lord Morris of Borth-y-Gest, asked the Government's views about extending powers as to new trials. I am not in a position to say whether the Government would favour any further alteration of the law in this field. I must confess I have always felt that more use might be made of the power to order a new trial, particularly, perhaps, in the kind of case in which somebody has not called the evidence because he was advised not to. After all, it is not unreasonable that a man should be told, "We know there is only one witness as to identity, and the case will probably collapse at the end of the prosecution's case. If you call these three people to prove where you were, that is quite enough, Why call another half-a-dozen?" If the jury convict and if in fact the man is completely innocent, if he is given a retrial he can call the others.

My Lords, if I appear worried about identity, I think we all have cause, looking to the future, to think that our worries in this field will increase, because I really do not think that most policemen can tell the difference between one coloured man and another. It is not at all easy ourselves. I remember a meeting at which an overseas student wanted me to go and thank a certain Judge for something he had done for him. I said, "Well, there he is over there; why don't you thank him yourself?" He said, "You know, we find it very difficult to distinguish one white man from another".

The noble Lord, Lord Conesford, has, I appreciate, a reservation on this question of abolishing the power to increase sentences; and the noble Lord, Lord Chorley, referred to the quality of courts of quarter session. It has often seemed to me that the choice which we give to people, whether in criminal law or in civil cases—and in civil cases more particularly—when we say, "Would you like the facts decided by one lawyer or twelve laymen?", is a very extraordinary choice. We do not realise it because we are so used to it, but usually any sensible man would say," I do not think I should like either. I think I should like it to be decided by one lawyer and two laymen sitting together, or one lawyer and four laymen ". This, in fact, is the nature of a court of quarter sessions, and everybody would agree on the value of the assistance the chairman of quarter sessions gets from the lay justices.

Finally, my Lords, may I say how much I agree with the noble and learned Lord, Lord Morris of Borth-y-Gest, in what he said about the work done by the Judges in the Court of Criminal Appeal. One cannot too often point out, because I do not think it is altogether realised, the burden, particularly in the last two or three years, which has fallen on those Judges, the amount of work they have to do at night and the amount of work they have to do on Saturdays and Sundays. If that is true, as indeed it is of the members of that Court, it is one of the reasons why I suspect many of them prefer not to have to do it for too long. But the noble and learned Lord, the Lord Chief Justice has not only that burden but the burden of the whole of the administration of what is to-day a very much larger Division than it used to be, the Queen's Bench Division. And, if I may say so on your Lordships' behalf, I think you, and everyone else in this country, have every reason to be grateful to the Lord Chief Justice for the very heavy burden he carries to-day in having to preside over this Court regularly, in having occasionally to go out on circuit, and, on top of that, bearing the very big administrative burden that he does.

There will no doubt be one or two matters we can consider on Committee. If I may respectfully say so, I rather agree with the noble Viscount, Lord Colville of Culross, that the position about fresh evidence is not altogether clear and that it might warrant further discussion. Again, may I thank all noble Lords who have taken part in this debate.

On Question, Bill read 2a, and committed to a Committee of the Whole House.