§ Order for Second Reading read.
§ 4.50 p.m.
§ The Secretary of State for the Home Department (Mr. Henry Brooke)
I beg to move, That the Bill be now read a Second time.
In this short Bill we ask Parliament to make a significant and valuable change in the arrangements for the administration of justice. It will enable a new trial of a convicted person to be ordered by the appropriate authority on the ground that there is fresh evidence in his case. A new trial on this ground will be possible under the Bill where the case has been dealt with by the ordinary criminal courts or by courts-martial. In the one case it will have to be ordered by the Court of Criminal Appeal, in the other authorised by the Courts-Martial Appeal Court or appropriate reviewing authority—the Admiralty, the Army Council or the Air Council.
I will concentrate upon the effects of the Bill on cases in ordinary criminal courts. Schedule I makes provision for new trials by courts-martial and it follows, as closely as Service law and circumstances permit, the provisions in Clauses 1, 2 and 3 of the Bill for cases in the criminal courts. It is right that we should keep civilian and Service law broadly in step in this way, as we did in the Administration of Justice Act, 1960.
The idea that there should be some power to order a new trial in criminal cases is not at all new. For more than 100 years there have been proposals of one kind or another for the introduction of some such power, but for just as long a time there has been dispute about the wisdom of doing so. The argument started long before the Court of Criminal Appeal was set up.
585 Many of those enlightened people who first argued the need for some machinery of appeal in criminal cases wanted it simply to provide a power to order a new trial in appropriate cases, and in the 60 years or so before the creation of the Court of Criminal Appeal no fewer than 25 Bills with that object were introduced, unsuccessfully. But, equally, there were many other people who did not consider this a suitable procedure and, when the Criminal Appeal Act which eventually established the Court of Criminal Appeal was introduced in 1907, it made no provision for new trials.
An amendment to that Act proposing the inclusion of a power to order a new trial was rejected. The powers which Parliament then thought it right to confer upon the Court of Criminal Appeal have remained virtually unchanged ever since. They are contained in Section 4 of the Criminal Appeal Act, 1907.
On considering an appeal against conviction, the court is required to allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the trial court should be set aside on the ground of a wrong decision on any question of law, or that on any other ground there was a miscarriage of justice. If the appeal is allowed, the court must quash the conviction and direct the entry of a judgment and verdict or acquittal.
The duty laid upon the court is subject to a proviso that it may however dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. As a matter of practice, the court has applied that proviso and dismissed the appeal only where it has been satisfied that, on the whole of the facts and with the correct direction, the only proper verdict would have been one of guilty. Inevitably, therefore, there are cases where the court feels obliged to allow the appeal and to acquit the appellant, despite the fact that it may have little doubt of his guilt.
There is one other power in the Act of 1907 to which I should invite the attention of the House because it is specially relevant to the present Bill. That is the power to call evidence. The proceedings before the Court of Criminal 586 Appeal are not, in any sense, a rehearing of the whole case, but, under Section 9 of the Act, the court has power to hear the evidence of any witness, whether or not he gave evidence at the trial,… if they think that it is necessary or expedient in the interests of justice".These then were the powers which Parliament gave to the court in 1907.
The decision taken 57 years ago to establish a procedure of appeal without provision for retrial in no way abated the argument about the need of provision for retrial. In the first year that the Court of Criminal Appeal sat, it found occasion to express regret at the lack of such a power. These regrets have been repeated at one time or another by successive Lords Chief Justices ever since—most recently by the present Lord Chief Justice in the "Lucky Gordon" case. Lord Goddard, when he was the holder of that office, was a particular champion of this cause. When the Criminal Justice Act, 1948, was before Parliament he strongly advocated the inclusion of a Clause on new trials.
A new Clause to that effect was moved by an hon Member, now my right hon. and learned Friend the Lord President of the Council, when the Bill was before this House on Report. The then Government did not feel able to accept the Clause he proposed, but they did accept the principle which it embodied. A Government amendment to provide for new trials was introduced and accepted in another place.
It then became evident that there was still a deep division of opinion on this matter, and in the face of this conflict the Government decided, when the Lords Amendment came to be considered by this House, to move its rejection. So the Clause fell.
The matter was raised again in another place in 1952, on a Motion by Lord Goddard, and later that year my noble and learned Friend Lord Kilmuir, who was then Home Secretary, together with the then Lord Chancellor, Lord Simonds, decided to appoint a Departmental Committee, under the chairmanship of Lord Tucker, to make a thorough examination of the arguments. The Report of that Committee, which was presented to Parliament in 1954, showed, 587 once again, a continuing divergence opinion.
The Committee was informed that the judges were in favour of a power to order a new trial, but only by a small majority: the Bar Council was in favour of a power restricted to cases of fresh evidence, but made it clear to the Committee that its views did not necessarily represent those of the Bar as a whole: the Law Society was opposed in principle to a second trial.
In the light of this evidence it is not altogether astonishing that the Committee itself was unable to reach wholly unanimous conclusions. On the issue of giving the Court of Criminal Appeal an unrestricted power to order a new trial, the Committee was as divided as its witnesses. Three members, including the Chairman, Lord Tucker, thought the court should have a discretion to order a new trial in any case in which the court thought it necessary, including cases of misdirection or other irregularity on the part of the judge or the prosecution. But the other five members opposed such a wide power on grounds of both principle and practice. So it was five to three against the wide power.
In the Report there was all the same, a new and welcome note of unanimity. All the members, without exception or reservation, were agreed upon the desirability of a power of retrial in cases of fresh evidence. This narrowing of the old area of disagreement was significant. The argument about a wider power continues, but it has now come to be very generally accepted that, in cases where an appeal is based on grounds of fresh evidence, there ought to be a power of retrial.
As current evidence of this I need only quote the views of the Committee appointed by "Justice", whose Report was published last month. This committee, like the Tucker Committee 10 years before, was divided on the wider issue, but was in no doubt of the need for the limited power linked to fresh evidence.
It is on the basis of what I believe to be the solid support of legal and public opinion, and on the grounds cogently argued by the Tucker Committee, that I present the Bill. With the leave of 588 the House, I would like to quote what of the Tucker Committee said in making its unanimous recommendation:In cases where new evidence is accepted by the prosecution and the court are satisfied that it is conclusive in favour of the appellant their task is, and would be, simple—to allow the appeal, to quash the conviction and to enter a verdict of acquittal. But in many cases it is impossible to assess the value of new evidence without weighing it against evidence given at the trial.This can properly be done only by a jury who hear and see all the witnesses, including both those who gave evidence at the trial and those whose evidence has become available.Moreover, we think it preferable that the appellant on whose behalf further evidence has been tendered, should in appropriate cases have the advantage of having the whole of the evidence heard and weighed by a jury rather than that he should be left to seek redress for alleged wrongful conviction by other means.In such cases as the Committee had in mind, the Bill will provide, with the necessary safeguards, the means by which the whole of the evidence can be reheard by a jury.
Clause 1 defines the circumstances in which a new trial may be ordered. It does not in any way impair the Court of Criminal Appeal's present power to acquit the appellant forthwith if in the light of the fresh evidence it thinks it appropriate to do so. Nor does it affect the duty of the court to acquit if an appeal is allowed on grounds other than fresh evidence.
It is only where the new evidence is the sole reason for quashing the conviction, and where the court is satisfied that the interests of justice so require, that a new trial may be ordered. The offences for which the appellant may be indicted at the new trial are very carefully restricted. They are limited to the offence in respect of which the appeal was allowed, or any alternative count at the original trial on which the jury was discharged from giving a verdict.
That last provision, which is in Clause 1(2), covers the case in which the appellant was charged originally with alternative counts of, say, larceny and receiving. If he was convicted of larceny, the jury may have been discharged from giving a verdict on the receiving charge; under the Bill it will be possible, at a fresh trial on the larceny charge, for the Court of Criminal Appeal to direct that the receiving charge be revived and disposed of. In no circumstances will 589 there be power to retry an appellant for an offence of which he was acquitted. Nor can he be retried for an offence charged in the original indictment if the jury, in fact, convicted him of a lesser offence; if, for example, he was originally charged with murder but the jury convicted of manslaughter, the court may order him to be retried for the offence of manslaughter, but not for the offence of murder.
As recommended by the Tucker Committee, the power to order a new trial will also be available in cases which have been referred to the Court of Criminal Appeal by the Home Secretary under Section 19(a) of the Criminal Appeal Act, 1907. This is automatically secured by the terms of Clause 1, because a case referred by the Home Secretary falls, under Section 19 of the 1907 Act, to be treated as an appeal by the person convicted.
The Tucker Committee also recommended that the House of Lords, when hearing an appeal, should have the same power to order a new trial as the Court of Criminal Appeal. Here again, no express provision is necessary in the drafting of the Bill, because Section 1(4) of the Administration of Justice Act, 1960, provides already that for the purpose of disposing of an appeal the House of Lords may exercise any powers of the court below.
Before leaving Clause I, I should like to refer briefly to the nature of the fresh evidence on which the court may exercise the new power, and to make it quite clear that this will be a matter for the court to decide. The purpose of the Bill is merely to enlarge the powers of the Court when it has decided to allow an appeal on the ground of fresh evidence; it does not, and is not intended to, affect the court's control of its own practice and procedure on the hearing of the appeal.
It will, as at present, be for the court, in exercising its power under Section 9 of the Criminal Appeal Act, 1907, to receive evidence for the purposes of the appeal, to decide whether it is "necessary or expedient in the interests of justice" that particular evidence should be considered. Over the years the Court of Criminal Appeal has evolved principles by which it is guided in deciding whether 590 to admit fresh evidence on the hearing of an appeal.
The court will not, for example, consider evidence which could have been given at the trial, and it has been reluctant to admin evidence of events occurring after the trial—for instance, a subsequent admission of perjury by a witness—preferring that such evidence should be brought to the notice of the Home Secretary, for him to consider whether there are grounds for recommending interference with the conviction under the Prerogative of Mercy.
It may be that the availability of a power to order a new trial will lead the court to revise the principles which it has hitherto found it necessary to apply. But the court must, I am sure, be left to evolve its practice in the light of experience.
§ Mr. Sydney Silverman (Nelson and Colne)
I think that I have understood what the right hon. Gentleman has said, but I should like to make it quite clear. Is he saying that the question whether the Court of Appeal is to hear new evidence is to remain in the Court of Criminal Appeal, and that there is nothing in the Bill to ensure that that court will apply wider standards than have been applied in the past?
§ Mr. Brooke
That is right. The Bill does not interfere with the court's discretion in that matter. If the court wishes to re-examine its principles, that is entirely a matter for the court.
§ Mr. R. T. Paget (Northampton)
Where does this new principle come from? What the right hon. Gentleman is suggesting is that the judges should usurp our position and become legislators. Judges have never had the power to change the law. The law can be altered not by the judges, but by the legislature. What the right hon. Gentleman is now proposing is judge-made law. Where does that principle come from?
§ Mr. Brooke
It comes from Section 9 of the 1907 Act, All I am doing is pointing out that the Bill makes no difference to the law in this respect. It may be that hon. Members will wish to consider whether it should, but I am here to expound what is in the Bill and, I repeat, the Bill makes no difference to the existing power of the court.
§ Mr. Brooke
What the Court of Criminal Appeal does at present is to apply Section 9 of the 1907 Act, and the Bill does not in any way alter Section 9. However, I have no doubt that the hon. and learned Member will wish to speak on this issue later. My duty now is simply to explain that the Bill does not alter the existing law in that respect.
§ Mr. S. Silverman
I apologise to the right hon. Gentleman for pressing him further, but I think that there is an error of fact. He says that the existing practice of the Court of Criminal Appeal is the practice laid down in Section 9 of the 1907 Act. This is not so. Section 9 of the Criminal Appeal Act has in it none of the limitations which the Court of Criminal Appeal has applied to it over many years. Section 9 says only that the court shall have power to hear additional evidence. It does not say anything about it being new evidence, or fresh evidence, or about it being material, or any of the principles on which the Court of Criminal Appeal has habitually excluded fresh evidence over the years.
It is, therefore, important to say, as my hon. and learned Friend the Member for Northampton (Mr. Paget) has said, that the question whether there is to be a change or no change in the present practice after the enactment of this Bill is a question properly for this House and not one for the Court of Criminal Appeal.
§ Mr. Brooke
All I am saying is that Section 9 of the Criminal Appeal Act, 1907, gives the court a certain power which it has been exercising in a certain way. I am pointing out that there is nothing in this Bill which alters the state of the law in that respect. I feel sure that many hon. and hon. and learned Members will wish to speak on this and maybe pursue it further, but I thought that my task was to put before the House what was in the Bill.
592 Clause 2 deals with various questions of procedure that are consequent on an order for a new trial, matters such as the venue of the new trial, the custody of the appellant or his admission to bail, and the grant of legal aid.
In Clause 3 there are important safeguards. This Clause deals with the sentencing powers of the new court of trial, in the case of the appellant who is retried and reconvicted. It would not be right automatically to revive the original sentence, as if the retrial had never taken place.
Though the new evidence has not resulted in acquittal, it might afford grounds for the sentencing court to take a more lenient view of the case or the court might want to change the form of sentence for other reasons.
I am certain that a defendant ought not, by reason of his appeal and of the decision of the Court of Criminal Appeal to order a retrial, to be at risk of finding himself in peril of a longer term in custody than was originally imposed. Clause 3 therefore provides that the second court may not impose a sentence of greater severity than was imposed on the original conviction. The Bill does not attempt to define the concept of "greater severity". It would require complicated provisions to do so and I do not think that it is necessary.
There is a similar provision in Section 5(2) of the Criminal Appeal Act, 1907, which enables the Court of Criminal Appeal in certain circumstances to substitute for a trial court's verdict a verdict of guilty on another offence, and to impose a sentence which is not of greater severity than the original sentence. I believe that the court has not, in practice, found any difficulty in interpreting this restriction.
Subsections (3) and (4) of Clause 3 contain further safeguards to ensure that a reconvicted appellant shall not be put in a worse position because of his appeal. Subsection (3) enables him to count towards his new sentence any time which he has already served under the first sentence, and any time which he has spent in custody awaiting a retrial. Time served under the first sentence will count even though the sentence is changed from one form of custodial sentence to another. Subsection (4) pre- 593 serves his entitlement, if he has any, to count time spent in custody awaiting the first trial.
I have no doubt that in the course of debate on the Bill we shall traverse again the arguments for giving the Court of Criminal Appeal a wider power. My answer to criticisms that the Bill is unduly cautious is that this is a field in which, I submit, caution is very necessary.
I think that it must be remembered that the proposal for the enlargement of the powers of the Court of Criminal Appeal is equally a proposal for the curtailment of the present rights of the appellant; it is a proposal for giving the prosecution an opportunity to start again in circumstances where, as the law now stands, the appellant would get an acquittal. I submit to the House that no change in procedure that may operate against an accused person ought to be made unless it can be shown, and shown beyond doubt, that the interests of justice and the public require it; and here it is only too clear that there is still much doubt and division of opinion.
I outlined the long history of the deep division on this subject among those best qualified to judge of it. Quite frankly, that division is still with us today. It may be that in counting voices we should now, after 10 years, find some shift of opinion towards the view of the minority of the Tucker Committee, but we are still a long way from unanimity.
That is manifest from the Report just published by the committee of "Justice". Though the minority view of the Tucker Committee was now favoured by the majority of the "Justice" committee, there remained four members of the "Justice" committee, lawyers of experience including the hon. and learned Member for Derby, North (Mr. MacDermot), who stood by the opposite view.
This clash of opinion exists because basically it is a conflict of fundamental principles. On the one hand, it is argued—and the Home Secretary of all people recognises the force of the argument—that justice requires not only that the innocent should go free but also that the guilty should be condemned, and that our administration of justice is defective if guilty men escape on technicalities.
594 On the other, it is said that respect for the rights and liberty of the people who come before our courts is fundamental to cur system of justice and that it is contrary to this principle that a man should be put in peril a second time for reasons for which he was in no way responsible.
I know it is said that this principle is already breached under the present law in every case where a defendant is retried after a jury has failed to agree. I do not think that this settles the matter. It is no argument for throwing a principle overboard that some exceptions to it are inescapable. But, in any case, there is surely a fundamental difference between the retrial of an accused person in a case where a jury has not reached a verdict, and the retrial of a defendant upon whom a verdict has already been found.
It has also been said that to provide a power of new trial in a case of fresh evidence is to concede the case for a wider power. That I cannot accept. The arguments for the alternative courses spring from quite opposite motives. Essentially, the case for the wider power is that the prosecution should have a second chance to prove the guilt of the appellant. The case for the narrower power is that the appellant should have a second chance to establish his innocence.
I cannot tell, nor can anyone, in how large or small a number of cases the new power granted by the Bill will be used. But its usefulness is not to be measured in numbers. It is in the type of case which now presents the Court of Criminal Appeal with the greatest difficulty that the value of the Bill will, I believe, be proved.
I understand and respect the views of those who would like to go farther. I trust that they for their part will understand and respect the views of those who, like myself, believe that on this unmapped ground we should proceed so far as there is unanimity, but not at present beyond that. The Bill will extend the powers of the Court of Criminal Appeal in a way which I think has the clear and broad support of legal and public opinion.
I readily recognise that there are other aspects of the arrangements for hearing 595 criminal appeals which call for review and maybe improvement. It is more than half a century since the Court of Criminal Appeal came into existence, and with the growth in the volume of crime the Court has been working under increasing pressure. I was, therefore, glad to be able to announce to the House on 14th January that my right hon. and learned Friend the Lord Chancellor and I had decided that the time had come to review the whole position of the Court of Criminal Appeal, and I think that we have been fortunate in securing the services of Lord Donovan, a former Member of this House, as chairman of the committee which we propose to appoint.
I was also glad to find that in setting up this committee we had the warm support of the Lord Chief Justice, who welcomed the proposal when he spoke on the Second Reading of the Bill in another place.
My right hon. and learned Friend and I will be ready in the near future to announce the membership and terms of reference of that committee. Our intention, broadly, is that it should examine whether all or part of the present jurisdiction of the Court of Criminal Appeal should lie instead with the Court of Appeal or with some other court; and, on the assumption that the Court of Criminal Appeal is to continue to exercise some or all of its present functions, to examine its constitution, powers, practice and procedure. I believe that this thorough review will commend itself to hon. Members on both sides of the House. It will be able to include within its scope matters which the debates on this Bill show to be outside the field of unanimity.
Whatever may be the arguments about what the Bill does not contain, I feel sure that what it does contain will command general support. It provides a valuable addition to the powers of the Court of Criminal Appeal while respecting the essential rights of the appellant. With those words, I commend it to the House.
§ 5.20 p.m.
§ Sir Frank Soskice (Newport)
There will certainly be unanimity on this point: 596 we shall all look forward to reading the conclusions of the Committe to which the Home Secretary has referred. This House has a high regard for the authority, wisdom and learning of the noble Lord who will preside over it, as its chairman, and hon. Members on both sides of the House will recognise that there is ample room—and, indeed, need—for a consideration of the whole structure of the Court of Criminal Appeal and, in particular, of the topics on which the right hon. Gentleman touched, namely, whether part of its jurisdiction should go to the Court of Appeal, and kindred topics.
I now turn to other possible points of agreement. So far as it lies in my power, I would advise the House to give the Bill a Second Reading. I say that echoing the words of the right hon. Gentleman. As I understand the Bill, its effect is to give an accused person who has been convicted and who has appealed to the Court of Criminal Appeal a further opportunity of showing that he ought not to have been convicted, by having his case referred, on fresh evidence, to another jury. I understand that that is the objective which is encompassed by the limited form, namely, the compromise solution proposed by the Departmental Committee presided over by Lord Tucker, whose majority recommendation the Government have accepted. It is upon that basis that I view the Bill, and hope that the House will give it a Second Reading.
There is force in the language cited by the Home Secretary, from page 13 of the Report of the Committee, dealing with the situation in which the accused's guilt or innocence ought to be viewed in the context of the broader body of evidence which may be available. Upon that footing I would hope that the House would give the Bill a Second Reading.
I say that subject to the caveat that it is far from clear from the language used in Clause 1(1) precisely how the Bill will work and, indeed, whether it will achieve the object which the Home Secretary indicated in the words from his speech which I have cited—whether it is properly designed to give the accused person the further opportunity that, speaking for myself, I believe that experience has shown he should have.
597 The history of this Measure, and especially its passage through another place, has been somewhat extraordinary, in that virtually the whole debate in another place was centred upon the question whether the powers should be wider or should be limited to the narrower compromise form in which they find expression in the terms of the Bill. I find the arguments used by the right hon. Gentleman, and expounded fully and most admirably by the Lord Chancellor in another place, infinitely more convincing than the arguments to a contrary effect addressed to the other place by a number of noble Lords, including some Lords of Appeal in Ordinary.
I hold a deep and profound respect for the learning and authority of those noble Lords, but I confess that I was wholly unconvinced by the arguments which they addressed to the other place. I thought that the Home Secretary was right when he said that the conflict of view sprang from a rather deeper conflict of principle. Those noble Lords who wished for the powers to be in a wider form, as appears from their speeches, were principally influenced by the consideration that some guilty persons now succeeded in avoiding punishment, and that they ought to be punished. The contrary view, put by the right hon. Gentleman and the Lord Chancellor, and which appealed to me much more strongly, is based upon what I conceive to be a very deep-rooted principle in our system of justice, namely, that criminal justice should be fair, swift and final, and that except in the most unusual situation persons should never be put in jeopardy twice upon a criminal charge.
When it is said that in any event that principle is breached when there is a disagreement upon the first trial, I answer—as the right hon. Gentleman answered—that one breach of a very salutary principle does not necessarily mean that other breaches in it are desirable. If there is one unavoidable breach—and many people would be of the opinion that that breach is avoidable, and should not be allowed—namely, in the case where juries disagree, it seems to me that that is a strong reason for doing our level best to avoid further breaches, and that we should not be encouraged to make further breaches. I felt some regret when I read certain passages in the speeches 598 of some noble Lords in another place who seemed to be wholly unimpressed by any consideration of that sort.
Therefore, I begin by saying that I entirely agree with the view that the Government have taken on the initial problem raised by the Bill, namely, whether the powers should be wider or narrower. I hope that if the matter is raised later in Committee, we shall adhere firmly to the view that we should not extend these principles in any event beyond the degree to which they are embodied in the Bill.
Having made my position clear on that issue, I want to proceed to the other aspects of the Bill, saying, however, that it is not as if judicial opinion were wholly on the side of the wider extension of the powers. There is a remarkable cleavage both of judicial and non-judicial opinion among lawyers and laymen. A very striking division was that to which the noble Lord the Lord Chief Justice pointed, when he informed another place that of 30 judges—he thought that that was the approximate figure of learned judges present at the meeting to which he referred—16 were in favour of a wider form of power to order a new trial and 14 in favour of the narrower form which appears in the Bill. That is a remarkable cleavage of opinion among learned judges whose task it is to sit upon the benches of courts of first instance and be actively concerned with this sort of problem.
But there it is. There is a wide cleavage of opinion that must be recognised. It must also be said that the Lord Chief Justice would have preferred the powers to be in the wider form but felt that it would be inappropriate that they should take that form in view of the very marked cleavage of opinion in the world of the judiciary and of lawyers generally which still exists on that topic.
Leaving that out of account and going to the second question which I adumbrated briefly in my earlier remarks, how in fact is subsection (1) of Clause 1 to operate? I hope that the House will excuse me if I cite from a very learned tonie—"Archbold on Criminal Pleading and Practice", a work of very great authority which I suppose every practitioner in the country thumbs and has cited from on many occasions. I 599 cite from paragraph 899 of the latest edition a passage which describes the practice which in fact has been followed by the Court of Criminal Appeal in its consideration of fresh evidence in the exercise of its powers under Section 9 of the Criminal Appeal Act, 1907. It is the practice which learned judges in that court have gradually evolved placing on the relevant wording of the section the interpretation which they think appropriate to it as reported in a very large number of reported cases upon which the practice is based, cited in Archbold, in these words:It is only in the most exceptional circumstances and subject to what may be described as exceptional conditions that the court is ever willing to listen to additional evidence. One of the requisites to the granting of an application for leave to call additional evidence is that it must be shown that the proposed witness was not available to give evidence at the trial. The other requisite to the granting of such application is that the additional evidence must be such that, in the opinion of the court, it probably would have affected the verdict which the jury returned.I should have thought that the opinion of a considerable number of people who have reflected on the proceedings in the Court of Criminal Appeal would be that there is perhaps room for a more, shall I say, extensive review of a jury's verdict of fact. Many learned judges, I think, are understandably reluctant, when sitting in the Court of Criminal Appeal, to interfere—unless it is perfectly clear that they ought to interfere—with the findings of fact which a jury has recorded. This reluctance which springs from long experience is easily intelligible, and I make no criticism of it. It is a fact, and I should have thought that practitioners in that court would in general be in accord, that that is the general principle which underlies the view taken by the learned judges in the Court of Criminal Appeal. That is the situation from which one starts, and starting from it, and looking at the provisions of this Bill, I should have thought that it would conduce to a more perfect administration of justice if there were some wider provisions for a direct reconsideration of the conclusions on fact at which a jury arrives.
I doubt whether the ends of the administration of justice are always best served by what I have described as the quite understandable reluctance of a 600 judge sitting without a jury in the Court of Criminal Appeal to substitute his own opinion on the facts—without actually seeing the witnesses before him—for that which a jury formed. If I support the principles of this Bill it is because it seems to me that subsection (1) seems to move in that direction.
At the moment, as is reported in Archbold, the court is reluctant to hear fresh evidence and only hears fresh evidence where the circumstances are rather exceptional. Archbold goes on to point out that the court will proceed by the principle that there should be an acquittal, as I read the relevant passage which appears in the same paragraph, if the fresh evidence is such that the jury might not necessarily have come to the verdict of "guilty" at which they had arrived, had the evidence been before it. Those are the principles. I feel it is desirable that there should be some easier way of putting before an appeal tribunal further evidence available touching the question of guilt or innocence. I can well understand that it is difficult for the Court of Appeal to constitute itself into a kind of fresh jury and, as it were, to rehear the whole case. I feel that this Bill does what the Home Secretary indicated is its purpose in making it possible for fresh evidence to be more easily heard by saying, "The evidence of a new witness, or two or three witnesses cannot be really evaluated so far as the strength of their evidence goes in the Court of Criminal Appeal as well as they could be evaluated if their evidence is considered in the context of the whole of the evidence available in the case, and that can only be done if the matter goes back to a fresh jury."
It seems to me, therefore, that the effect of the Bill is likely to be this: over and over again a jury arrives at a verdict of guilty. There is other evidence which might have been placed before it which was not, for one reason or another. It is very difficult for the Court of Criminal Appeal to form a clear view, in the first place that it ought to hear that evidence, and in the second place what would have been the effect if the court of first instance had heard it. It seems that the machinery provided for in the Bill will enable the Court of Criminal Appeal in a number of cases to produce a more certain and 601 fairer result than might be possible under the existing machinery. Because I hope that the Bill will have that effect, I feel disposed to support its Second Reading, and I hope that the House will give it a Second Reading.
I do, however, venture to repeat that I think we shall have to consider very closely the wording which has been chosen, when and if this Bill reaches a Committee stage. If I may say so with respect to the right hon. Gentleman the Home Secretary, and to the right hon. and learned Gentleman the Attorney-General who I believe is to reply to the debate, it does not seem to me that Clause 1(1) indicates with any clarity, or with sufficient clarity, what it is that has to be established by an appellant when he comes before the Court of Criminal Appeal and indicates that he wishes to tender fresh evidence. Has he, in effect, to do what he now has to do, as described in the paragraph in Archbold which I read out, if he wishes the court to exercise its existing powers under Section 9?
Will he have to show in tendering the evidence that there are exceptional circumstances which make it desirable for the Court of Criminal Appeal to exercise its powers to order a new trial? If he has to do that, I must confess that I do not think this Bill will help him at all. Indeed, it could have the opposite effect. It might mean that in cases in which the Court of Criminal Appeal, if it had heard the evidence tendered on appeal, would as the law stands have directed an acquittal, the appellant will fail. He might be in the position in which he would not derive any advantage if this Bill is passed.
Therefore, I hope that the Government will be able to say that they will look with sympathy on any change proposed to the language of Clause 1(1) which will make it clear that one of the objectives of the Bill is that the rather stringent provision limiting the circumstances in which new evidence can be made available to the Court of Criminal Appeal is loosened so that it may be much easier for an appellant who comes to the Court of Criminal Appeal to say, "There was other evidence which might have been put before the jury. I now wish to support my argument by saying that that other 602 evidence would have made a difference and I ask the Court of Criminal Appeal to order a new trial".
If the language could be considered with that end in view, I should think that it world be a very valuable provision. I hope that the right hon. and learned Attorney-General will be able to say that he will look with sympathy on any examination of the language of Clause 1(1) designed to achieve that purpose.
A number of hon. and learned Members, I know, wish to speak. I have made the points which I wished to make on this Bill and accordingly I shall not continue my observations any longer. I hope that we may give this Bill a Second Reading and resist most firmly any attempt to extend the power to grant a new trial in the sense for which noble Lords in another place contended, and I hope that in Committee we shall subject the language of Clause 1(1) to a very thorough review.
§ 5.40 p.m.
§ Mr. Charles Doughty (Surrey, East)
The Home Secretary in introducing this Bill said that it was a significant and important Bill. Although I would agree with a great deal of what he said, I cannot agree with that remark at all. As drafted, this Bill, only and solely gives the Court of Criminal Appeal power to order a new trial if it sees fit in a case where fresh evidence which has a very technical and special meaning is available and is presented by the appellant to the court.
One naturally asks oneself, "How often will this occur? Will it be a daily matter to make this Bill significant and important? "—and the answer is "No". In fact—I quote the words of the Lord Chief Justice in another place—it will occur about once a year, and it does not necessarily follow that the court in that particular case will consider the fresh evidence of sufficient importance to order a new trial. Therefore, this important Measure which we are considering is neither significant nor important but may in fact result in a new trial in, say, once every two years. I do not, of course, include the question of courts-martial. No one knows how often that would apply because there are no records and no history of it. I should 603 have thought that the number of times will be so unimportant that this would not apply.
That is the position so far as the Bill as drafted is concerned. Therefore, it is quite wrong to say that it is significant, and quite wrong to say that it is important. It may well be that it came before this House and another place only because of a well-known and notorious case which took place last year. Because in one case it might have been important for a new trial, that is no reason to bring in this very special Bill and occupy the time of the House with it.
But discussion here will undoubtedly and rightly take place, as it did in another place, on the important question of whether this Bill goes far enough. I am aware, as other hon. Members will be aware, that this is a Government Bill and the Government take the view that it should not be extended, and apparently that is the final arrangement. It is unlikely that those who think that it should go further are likely to succeed in getting it amended in that rather large measure during its passage through the House. But that does not prevent hon. Members from expressing their views during the course of its passage.
I entirely agree with the Home Secretary and with the right hon. and learned Member for Newport (Sir F. Soskice) that we all await with interest the conclusions of this new Committee under Lord Donovan that has just been appointed. We shall see whether it varies or differs in any way from the previous committees which have sat to consider this vexed and awkward question, and I am sure that if necessary, and if its conclusions are unanimous the Government will introduce a fresh Bill going a great deal further than this trifling and unimportant Bill goes.
I would say a word in answer to the right hon. and learned Gentleman before I deal with the wider question of what is meant and understood by everybody as a fresh trial. I agree with what he said, that as soon as there is fresh evidence, provided, of course, that it is possible for it to be believed, and that it is available, there should not necessarily be a new trial. Just think of the opportunities that would be open to an 604 accused person who says, "I will not call my best witnesses at my trial but keep them for the Court of Criminal Appeal". The test is simple. The evidence must not have been reasonably available before the court below. That is the first requisite. It must be evidence which is relevant because it relates to matters which the jury had to decide and not evidence which was not relevant to the trial. And it must be such as is reasonably credible before a jury. This is the most difficult question of all to decide. Then, of course, there must be a new trial.
One must remember that in the Court of Criminal Appeal, however experienced the learned judges there may be in deciding questions, they are not judges of fact in criminal cases. The onus put upon them is the very difficult one of deciding whether a person, not seen or cross-examined, is likely to be believed by a jury. I hope that no alteration will be made at all in that, except in those cases where these three requisites are fulfilled, before fresh evidence will be considered by the court of Criminal Appeal and considered on the question of whether they shall order a new trial.
Now let us consider the other and much more important question, whether or not this Bill goes far enough. We are not only in this House—although I look around me and see a great many of my professional colleagues sitting there—dealing with the question of crime. The passing of laws dealing with crime and the protection of the public are very much in mind. We cannot hide from ourselves the fact that crime is on the increase, and has been on the increase. One has only to go into the courts where I used to go as a young barrister, the County of London Sessions, where there were two courts and now there are six and the same applies to the Old Bailey and elsewhere. Crime is rapidly on the increase and becoming of a more serious kind. It is not for that reason that we want to get innocent people convicted, but we want to see that guilty people do not escape and go free to commit possibly further and similar, or even dissimilar, crimes.
Let us not forget that all these people that we are talking about in the Court of Criminal Appeal have already been convicted and found guilty by a jury. A 605 large number of them get off and are acquitted under the Court of Criminal Appeal Act, 1907, because of some technicality which has occurred in the proceedings, perhaps a misdirection by the learned judge or recorder who tried the ease, and it may, in many cases, be of a very technical nature indeed. If that person is entitled after the hearing of the appeal to go free afterwards I can see, speaking entirely for myself, no reason why that should happen. He should be sent back, in my view—I know a good many lawyers disagree with that, just as many lawyers agree with what I say—for trial, and in the case of disagreement there should be one further trial and it should be limited to that.
§ Mr. Niall MacDermot (Derby, North)
Can the hon. and learned Member say why he thinks it should be limited to once only? If the principle is right, why not go on and on?
§ Mr. MacDermot
Is not the reason that it is oppressive? If it is oppressive to do it three times, why it is not oppressive to do it twice?
§ Mr. Doughty
I think the same principle applies as when there is a disagreement by a jury. I think that is about the limit which makes it non-oppressive and anything beyond that makes it oppressive. That is why I say that if there is further conviction by the Court of Criminal Appeal and a further finding of misdirection there should be no evidence offered. I do not think many would disagree with that part of what I have said.
I realise that it would not happen during the course of this Bill, but I should like these views put forward clearly because the suppression of crime is not easy. The new Judges' Rules do not make the discovery and suppression of crime any easier. However, some people may take a different view of that, but I think this is a handicap on the police whose difficult job it is to detect crime. I think that the new Judges' Rules put a severe handicap on the police forces of this country. If the whole lame we are to weight the scales in favour of a person charged with 606 crime, it is equally important to see that the protection of the public is ensured. That is just as important as seeing that in accused person has a fair trial.
This is a short and trifling Bill, a Bill which in my view—although I realise this is not a view which will be widely held in this House—should be amended so that there is ordering of a new trial in every case where the court thinks that should be done. The proviso referred to by the Home Secretary is so narrowly drawn that the Court of Criminal Appeal can very rarely apply it. That deals with Clause 1 of the Bill.
There is the small matter—it must be a small matter, because of the trifling number of cases to which this Bill will apply—of why a judge in a new trial should be restricted in sentencing to the sentence passed in the court before. If it is a completely new trial new facts may emerge. New facts may be put before the court as to what has happened, yet the judge who tries the case is obliged; to say, "I am restricted by the sentence passed upon you before and therefore I cannot give you what I think is the proper sentence in this case." This is a very small and trifling matter, but equally I think it is a mistake.
I hope I have made my views clear on this matter. I hope the House will feel that it can give a Second Reading to the Bill with a clear conscience, but it is altering but little the law of the land.
§ 5.53 p.m.
§ Mr. Dingle Foot (Ipswich)
One question which it seems needs to be asked in relation to this Bill is why we have had to wail so long for its introduction. The Tucker Committee reported on 10th April, 1954, very nearly 10 years ago. As we have been reminded, that Committee was divided on the issue as to whether there should be a general power in the Court of Criminal Appeal to order a new trial, but it was nearly unanimous, indeed it was emphatic, as regards the proposal embodied in this Bill.
There was no resistance, there was no one concerned to prevent the enactment of its Report, yet we have had to wait nearly 10 years. We may suspect that 607 we would not have had the Bill introduced in the present Session but for the Lucky Gordon trial. That, I suggest, is absolutely typical of the way in which the reform of the law has been approached over the last 12 years. It happens again and again. Everyone knows that the law is defective in some particular respect; there are judicial comments representations are made by the Bar Council or the Law Society; an extremely authoritative committee is set up and reports—often unanimously—then a form of Departmental paralysis supervenes and the report is pigeonholed. We do not hear of it again for a very long time. The excuse is always that the Parliamentary time-table is too crowded.
In relation to a Measure of this sort that always seems to me to be sheer nonsense. We could quite easily pass a Measure of this kind in an hour or two of Parliamentary time. We could pass it if necessary by sitting a little later for a couple of nights during a Session. We have had this kind of procedure for the last 12 years, but I comfort myself with the reflection that after the next General Election these matters will be dealt with with far more regularity and dispatch.
I come to the question, which was raised by the hon. and learned Member for Surrey, East (Mr. Doughty) and debated in another place, of whether the scope of the Bill should be widened. We are all aware of this fact. My right hon. and learned Friend the Member for Newport (Sir F. Soskice) said from the Opposition Front Bench that some very eminent judges—Lord Reid is one and Lord Devlin is another, and I have the highest regard for both—think that there should be a general power to order a new trial. Opinion has been divided, and evenly divided, both on the bench and at the Bar. It is worth recalling that this matter has been considered by this House on two previous occasions, the first in 1907 and the second in 1948. I remind the House of two quotations from debates, because they express very succinctly the reasons why we should resist the proposal for a wider power to order a new trial in cases of irregularity or misdirection.
608 The first quotation is from the Attorney-General in 1907, Sir John Walters. He is reported in indirect speech in the HANSARD of those days as saying thatTo his mind it was unthinkable that they should put a prisoner on a second trial for a miscarriage at the first trial for which he was in no way responsible.I entirely agree. After all, if there is a misdirection or some irregularity which leads to conviction, that is not the fault of the accused.
§ Mr. Doughty
I did not wish to interrupt the hon. and learned Member, but it is so tempting. Of course he is responsible, assuming that he is guilty of doing the crime. He is perfectly responsible.
§ Mr. Foot
I do not think the hon. and learned Gentleman is doing himself justice. If there is any misdirection, or if there is some irregularity, the fault lies with the court. It lies with the judge, the recorder, the chairman of quarter sessions as the case may be, or it may conceivably lie with the prosecution or be divided between the two, but the one person who is not responsible for the misdirection or irregularity is the accused.
§ Mr. S. Silverman
I am following my hon. and learned Friend with great sympathy and I agree with almost everything he has said, but will he explain why this principle he is so persuasively defending does not apply also in the case of new evidence? It is on the definition of new evidence that the Court of Criminal Appeal has applied to its finding, the evidence that was not called before because it was not available. The accused is no more responsible for a miscarriage of the facts than for a miscarriage of the law or misdirection. Why, therefore, does not the principle of not putting a man on trial for the second time in circumstances for which he was not responsible apply there, too?
§ Mr. Foot
I am always willing to give way to my hon. Friend, but I think his intervention was a little premature. I was just coming to the point he has raised. I was on the question of a new trial in a case of misdirection or irregularity. I gave one quotation from what the Attorney-General said in 1907. The 609 other quotation was from a speech made in another place in 1948 by Lord du Parcq, who had a very wide experience of criminal trials, both at the Bar and on the bench. He said:I am going to say something which may seem odd, but I believe that on reflection your Lordships will agree with it. It is inevitable, and one might almost say that it is right and desirable that guilty persons should sometimes escape. It is the price we pay for making sure that no innocent person is ever convicted.Later in his speech he said:… I would rather run the risk of an occasional guilty man escaping than put them twice in peril. That is contrary to every principle of cur law, of which it has always been a fundamental maxim that a man could not be put in peril twice for the same offence."—[OFFICIAL REPORT, House of Lords, 7th June, 1948; Vol. 156, c. 395–6, 398.]That reasoning is just as cogent now as it was in 1948. When there has been an error for which the accused himself is not responsible, we ought not to subject him to the ordeal of going through a second trial.
I come now to the point raised by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), and which has been referred to in both opening speeches. That is the question of the application of Section 9 of the 1907 Act.
§ Mr. Roderic Bowen (Cardigan)
Does not the hon. and learned Gentleman agree that in fact the provisions of the Bill as it stands at the moment will mean that a man can be put in peril for the second time?
§ Mr. Foot
In a sense, of course, that is correct, but it means a second trial. The Bill is the only way in which we can meet the situation which arises when fresh evidence appears after a conviction. I suggest that over the years an unduly narrow interpretation has been placed on Section 9 of the 1907 Act, an interpretation which I think, with great respect to the judges, is narrower than Parliament originally intended.
What it comes to is this. If it is desired to call fresh evidence before the Court of Criminal Appeal, it must in effect be shown to the court that that evidence could not have been made available at the original trial. I entirely see the force of what was said by the hon. and learned Member for Surrey, 610 East. It would be intolerable that accused persons or those who represent them should keep back witnesses and then, if there is a conviction, try to bring them forward to give evidence in the Court of Criminal Appeal.
However, there may be perfectly valid and legitimate reasons for not calling a witness, even though he may be physically available. All of us who practise in the courts have had some experience of this. I will give as an example the case of the reluctant witness, the witness who may be able to help the defence but who is very unwilling to come. One can compel his or her attendance. We all know that his is extremely dangerous, and it may be undesirable. Therefore, those who represent the defence may reasonably conclude that they ought not to call the witness at the trial. Then—I have known this happen—the witness afterwards has second thoughts. Having seen the conviction, the witness becomes less reluctant and is willing to come forward and give evidence. This may be a rare case, but it is a case which occasionally arises. In such a case I personally can see no reason why the evidence should not be called in the Court of Criminal Appeal and why the court in such a case should not order a new trial, at which that evidence can be given to the jury, together with all the rest.
I entirely agree with what was said by my hon and learned Friend the Member for Newport. This is a step in the direction of making the Court of Criminal Appeal more of a court of review. We all know that at present it is very rare for the Court of Criminal Appeal to allow an appeal on a question of fact. It must be shown that there has been some misdirection or that there has been something wrong with the trial. One must be able, in effect, to raise a point of law to have any chance in the Court of Criminal Appeal. Even though the court may think that the evidence was of a most unsatisfactory nature, if there was evidence upon which the jury could convict it will not interfere with the conviction.
This principle has been long established in this country. It does not obtain in parts of the Commonwealth. For example, in India there is a trial, admittedly not as a rule a trial by jury 611 but a trial by judge alone. It used to be a trial by a judge with assessors. In each case there would be an appeal. The appellate court would not have the advantage of seeing and hearing the witnesses. Naturally, it would have regard to the views of the court which did. None the less, the appellate court has not felt itself inhibited from dealing with the facts. It has reviewed the facts again and again.
I myself believe that this country could with advantage move towards the Indian system. It should be the duty of the Court of Criminal Appeal not merely to look for some legal error in the course of the proceedings but also to see whether the facts really justify the conviction. This no doubt will be considered by the Committee to be presided over by Lord Donovan. It is because the Bill is at any rate a step in that direction that I personally hope that it will soon reach the Statute Book.
§ 6.6 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
As has been said, the Bill gives a very limited power to order a new trial where a conviction is quashed in the light of fresh evidence and on no other ground, and where the court in its discretion considers that a retrial should be ordered in the interests of justice. This means, if the present practice is followed—and we have the authority of the Lord Chief Justice in another place for saying that this practice will be followed—that it is only where three conditions are fulfilled that the matter can be dealt with in this way.
The three conditions are: first, where the evidence sought to be called was not available at the trial; secondly, that the evidence is evidence that it is relevant to produce; and, thirdly, that the evidence is credible evidence, in the sense that it is capable of belief.
I know that other speakers have referred to this, but this is the basis of the matter, The hon. and learned Member for Surrey, East (Mr. Doughty) referred to this very limited power. It must be borne in mind that one of the learned Law Lords last week expressed the view that it hardly touched the fringe of the general problem and was almost derisory. We have the authority 612 of the Lord Chief Justice for the statement that the number of cases to which the Bill as drafted can refer is extraordinarily small. The hon. and learned Member for Surrey, East said that it might be one a year.
§ Mr. Ede (South Shields)
On a point of order. I have always understood that the only time that Members of another place can be quoted in a debate in this House is when a member of the Government has made a statement in the other place. The Lord Chief Justice, eminent as he is—I do not seek to dispute the weight that has been placed on his views—is not a member of the Government. It would be a terrifying thing if the idea got about, because a statement he made in another place could be quoted in a debate in this House, that he must be a member of the Government.
I have heard three hon. and learned Gentlemen in succession allude to the Lord Chief Justice and bring him in in support of, or in opposition to, the views they have expressed here. I should be glad to know, Mr. Deputy-Speaker, whether I have quoted the rule with regard to quotations made from speeches in another place correctly.
§ Mr. Weitzman
Further to that point of order. Before you rule on this point, Mr. Deputy-Speaker, perhaps I might be permitted to say that before speaking I took the precaution of looking into this matter carefully. I understand that the rule is that one must not quote directly from such speeches, but that one can refer to the subject matter.
§ Mr. Doughty
Further to that point of order. I, too, was careful not to quote verbatim. I also understood that one could quote figures and facts given in another place or anywhere else in support of one's argument.
§ Mr. Deputy-Speaker (Sir William Anstruther-Gray)
I think that a quotation which is not verbatim—that is, an account of a speech as opposed to an exact quotation—does not offend the rules of order, but, apart from that, the right hon. Member for South Shields (Mr. Ede) was correct in what he said.
§ Mr. Weitzman
Perhaps I may be allowed to say that upon the authority of the Lord Chief Justice the cases to 613 which this Bill as drafted can apply are extraordinarily few in number. I wonder why it was thought worth while introducing a Bill in these terms.
In another place there was considerable support for the general question of enlarging the power to grant a new trial by granting unlimited power to the Court of Criminal Appeal in the exercise of its discretion to order a new trial. I am glad that the attempt has failed. Indeed, I press the view that the law as it stands should not be changed and that the limited power provided by this Bill should not be given. Practically all the arguments used against the idea of extending the powers as given under the Bill are arguments which apply with equal force to the rejection of the powers given by the Bill.
It is said that it is wrong that a guilty person should escape. If he does escape it is mainly the result of some technical point—some misdirection on the part of the learned trial judge—hut the Bill does not purport to deal with such a case and, frankly, it is of far greater importance that an innocent person should not suffer or should not run the risk of suffering. Consider what a trial means to an innocent person. He may be on trial on a murder charge or may be involved in a long conspiracy charge taking many weeks. The actual trial follows months of waiting and there is the period of the committal proceedings. Then the jury finds the accused guilty. He appeals to the Court of Criminal Appeal on grounds provided for under the Bill. There is fresh evidence and the Court of Criminal Appeal orders a new trial.
It has been said that this power to order a new trial is something given as a favour to the accused. My submission is that it is nothing of the sort. If one gals fresh evidence of such a kind that warrants the Court of Criminal Appeal saying that there is a real doubt about the matter—that there even arises the question of a new trial—the duty of the Court of Criminal Appeal should be to quash the sentence and not to order a new trial.
Consider what happens in the circumstances I have mentioned. The Court of Criminal Appeal orders a new trial. Again, there is the long agony of awaiting trial and the ordeal of the trial itself; and one can imagine what that means to 614 an accused person. What of the trial itself? Can a trial of that kind possibly be a fair one? The jury may learn—will almost certainly learn in the course of the trial—that the accused has been previously convicted of the charge by a jury. The first trial may have attracted publicity and reference may have been made to previous convictions. Damaging comments may have been made by the learned judge in sentencing the person on the first trial and such matters may receive considerable publicity. The jury on a new trial may have read of these matters and, clearly, these are matters which may prejudice the accused on a new trial.
A further point to remember is, as every counsel for the defence knows, a second trial is in many ways thoroughly unsatisfactory. The evidence is stale, the cross-examination is repeated and loses its sting and the witness is prepared and endeavours to put forward a ready explanation which was not received before. In other words, the prosecution is at a distinct advantage. The defence is at a disadvantage.
I have spoken about an innocent person; and in his case the prospect of a second trial of any kind is an appalling one. But even for a man who is guilty, think of the agony to which he will be subjected to to provide an opportunity to prove that he is guilty. A man stands his trial. If found not guilty that is the end of the matter. If on appeal his trial is shown to be unsatisfactory, unless the Court of Criminal Appeal is certain that he would have been found guilty despite any defect, and they apply the proviso, he should not be put in peril again. To give an example of this: a man tried for an offence where the jury disagrees after a long trials tried a second time and is found guilty. He appeals on the grounds of fresh evidence. Under the Bill the Court of Criminal Appeal may order a new trial and that, in that case, will mean three trials.
I have referred to the publicity that is attendant on the first trial and how it may affect the fairness of the second one. It has been said in answer to that criticism that there is already publicity of the committal proceedings before the magistrates. I had the honour some years ago of being a member of the 615 Tucker Committee which, years ago, unanimously recommended that such publicity—that is, publicity given to evidence at committal proceedings—should be forbidden; but nothing has been done to implement those unanimous findings. It does not lie in the mouths of critics to say that because that publicity exists there is no danger of an accused person on a second trial being prejudiced because of it.
It has been said in justification of the provisions of the Bill that now as a rule when a jury disagrees there is a second trial. That is perfectly true, and many of the observations I have already made apply with equal force to a second trial in such a case. I have always taken the view that a second trial should not be held when there is disagreement: that the accused should not be subjected to it, and that the very fact that the jury have disagreed shows such doubt that the accused should be acquitted.
The subject matter of the Bill is something over which many lawyers of experience differ. We have heard a number of quotations from previous debates, and I should like to add just two further references. Sir Hartley Shawcross, as he then was, the then Attorney-General, said in a debate on the Criminal Justice Bill in April, 1948:We must accept the view that occasionally—very occasionally, and subject to great safeguards—there may be some cases in which it is desirable that there shall be a new trial."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 1108.]At a later stage in the discussion on that Bill he took the view that the difficulty of providing adequate safeguards outweighed any value in allowing the court to order a new trial.
That is still the position. I hope that the House will refuse to give this Bill its Second Reading but, if a Second Reading is granted, I hope that in Committee something will be done about the wording of Clause 1(1) so that it is made clear that the powers of the Court of Criminal Appeal are not limited to consideration of fresh evidence in the way they are today; and also that some provision is inserted to show that the object which is said to be the object of this Bill, is to give a further right to the accused person, is made perfectly clear.
§ 7.21 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
The Home Secretary has outlined the earlier history of this matter with complete fairness. It is true that there was a long series of unsuccessful attempts to establish the possibility of a second trial, or a retrial, in the days before there was any right of appeal. I believe that in all those cases the attempt was made only because there was no right of appeal; that the possibility of putting a man on trial more than once for the same offence was never recommended in all those years on its merits. The Bills were a second-best. It was thought that this was a quicker way than getting a Court of Criminal Appeal established. They all failed and, in the end, a Court of Criminal Appeal, with limited powers, was established.
It is true to say that the judges in the Court of Criminal Appeal have ever since been busily engaged in whittling down the rights accorded by the Criminal Appeal Act. They have done it in two or, perhaps, three ways. The first has already been referred to, and I do not wish to dilate upon it. Whereas Section 9 gives the Court of Criminal Appeal the power, at its discretion, to hear additional evidence in order to establish whether "on any ground" there has been a miscarriage of justice, the Court of Criminal Appeal has produced a situation in which, by virtue of its own decisions, it does not allow itself to hear additional evidence unless it can be established that the additional evidence was not available, and could not by reasonable diligence have been made available, at the original trial. I do not believe that our judges have the power to alter the law in that way. It is regrettable that they should have done so.
The second way in which the judges have whittled down the rights conferred by the Criminal Appeal Act is in their treatment of the ground of appeal depending on the conviction being unsound because it is against the weight of the evidence. The Criminal Appeal Act is very clear about this. "Against the weight of the evidence" presupposes that there is evidence both ways, and that, there being evidence both ways, one weighs one lot of evidence against the other lot, and if the balance comes down for acquittal and the jury have 617 convicted, the conviction may, in a suitable case, be regarded by the Court of Criminal Appeal as unsound and may, therefore, be quashed.
What the judges of the Court of Criminal Appeal have done is to forget the words "the weight of"—
§ Mr. Dick Taverne (Lincoln)
I have not the Statute before me, but I think it reads if… the verdict … cannot be supported having regard to the evidence …
§ Mr. Silverman
Those are the words of the Act, certainly. The Statute does not use the words "weight of" and my argument is faulty to that extent, 1 agree.
But what the Court of Criminal Appeal has done has been so to interpret the words of the Act as to produce the position that if there is any evidence which, it the jury accepted it, could support the conviction, the conviction cannot be attacked. That was not what the Criminal Appeal Act said, and, although the words "weight of evidence" are not in the Criminal Appeal Act, they have been frequently used in the course of argument in the Court of Criminal Appeal as being an effective way of judging whether the conviction can or cannot be supported having regard to the evidence given.
Under pressure from the Court of Criminal Appeal, resulting from doubt and an xiety—indeed, criticism—about the conduct of a certain appeal, the Government have yielded to the suggestion that, after all, there ought to be given to the Court of Criminal Appeal the power to order a fresh trial. I am wholly against it. The principle that no man should be placed in jeopardy on the same charge more than once is a basic principle in our jurisprudence, and ought not to be disturbed.
My hon. and learned Friend the Member for Ipswich (Mr. D. Foot) conceded that and, if I may say so, advocated it with great force. He did this in respect of the suggestion that the limited powers of the Bill should be extended and that there should be the power to obtain a retrial, not merely where the ground of appeal is the availability of fresh evidence but where the ground of appeal is a defect in the summing up or some other fault in the trial for which the accused is not 618 responsible. I think that my hon. and learned Friend departed from his usual rigid logic when he endeavoured to establish a distinction on that ground between defects in the trial by reason of misdirection for which the accused was not responsible, and defects in the trial because the facts were not brought properly before the jury, as though in the second cast the fault lies with the appellant.
It lies nowhere. In that case there is no fault; a new development has occurred. In the first case there is a fault.
§ Mr. Silverman
It is true that in the first case there has been a fault on somebody's part, but the accused is not responsible for it. In the second case there may be no fault on anybody's part, but equally the accused is not responsible.
Therefore, if we say that a man should be put on trial for the second time in circumstances for which he is not responsible, I am unable to make a distinction between faults in the matter of evidence and faults in the matter of law. It seems to me a wholly illogical and untenable distinction, and all the arguments which the Government find acceptable and decisive against extending the powers of tie Court of Appeal in this respect are equally applicable to what they propose to do.
Why do they want to do it, and why now? What is the urgency, what is the importance of it? I have carefully read the whole of the debate in another place. I took part in the debates on the same point in 1948. I can find absolutely nothing, not a jot or tittle, not a shred, not a scintilla of new argument on this point. Nothing that was said in the other place had not previously been said 15 or 16 years ago.
I did not always agree with everything that the Labour Government did. There were occasions when I was enthusiastically in support of the Government—on most occasions, I think, in spite of a popular impression to the contrary. There were occasions when I differed, and when I differed I thought it right and proper to say so and to act accordingly Some people may think that some of those ventures were misconceived or ill-advised, but in many of them the House and my right hon. and 619 hon. Friends ultimately came round to share my opinion. I have no doubt on this point and I can see no reason why having been utterly persuaded by my hon. and right hon. Friends 15 or 16 years ago I should change my mind now or withdraw the allegiance which I then gave. Indeed, there is nothing new about it.
What has caused this? Again, my hon. and learned Friend the Member for Ipswich gave the answer. He was deploring the failure to implement the Tucker Report in 1954. I do not deplore it. I regret that the Government are acting on it now. I do not think that there is a justification for it. He said that it was the "Lucky" Gordon case that brought to life again this question of discretion. I think that that is true, although it is difficult to see how the ordering of a new trial would have put right anything that may have been wrong, or made easier anything that may have been difficult, in the handling of the Gordon case by the Court of Criminal Appeal.
I have expressed a view elsewhere. I had at one time contemplated putting a Motion down in the House, but I no longer propose to do that and I therefore make no accusations or complaint of any kind about the motives which may have influenced the Court of Criminal Appeal in dealing with that case in the way it did, but I have no doubt that the way it dealt with it had no authority under the Criminal Appeal Act.
I would remind the House of what it did. Gordon had been convicted. Gordon appealed, and the ground of his appeal was that there was new evidence available at the time but not available to him, but this had become available to him. The Court of Criminal Appeal ordered that certain transcripts should be made and certain statements from certain witnesses should be taken by certain police officers, and then the appeal came to be heard. Not a single scrap of new evidence was ever before the Court of Criminal Appeal.
The normal procedure is well-known. One puts in one's new evidence by affidavit and one reads the affidavit to the court. The court may decide that it does not fall within the definition of new evidence and therefore refuses to 620 do anything further about it, or it may decide that it falls within the definition, in which case the witness is called, gives evidence, is cross-examined. Then, the evidence having been given in that way in public, the court makes its assessment as to whether, if the evidence had been before the jury, the jury would necessarily have still convicted.
Only then, as I understand the matter, is the Court of Criminal Appeal entitled to quash the conviction. In this case it quashed the conviction for reasons which it said were obvious, but which were never explained and were certainly not obvious to me. The evidence could never have been before the court at all, and therefore it quashed the conviction without the evidence being heard.
I do not see how powers to order a retrial could have assisted in that case, and I do not see the relevance of Gordon's appeal to the principle which we are now discussing. I come back to that and ask in all seriousness that the Government should consider what in the world is wrong with the existing practice, what injustice is done, what is the compulsive force which compels the Government to say at this time, in this manner, that we must depart from a fundamental principle of our jurisprudence, namely, the rule that no man should be put in jeopardy twice on the same charge. It is said that this is done in the interests of the appellant. But the appellant's rights are diminished by the Bill, not increased.
What is the present position, if we do not pass the Bill? What has an appellant to do to succeed? First, he has to satisfy the Court of Criminal Appeal that his evidence is new in the narrow, rigid and strict sense of the word and that he could not possibly have called it before the jury at the original trial. It may well be that there is no statutory foundation for these rules of the Court of Criminal Appeal, but they are established rules now and the court would be reluctant, rightly reluctant, I suppose, to alter of its own initiative a long-established practice. So the appellant has to show that the evidence is new in that sense.
He has to show also that the new evidence is relevant or material in the sense that the jury could not necessarily be supposed to have reached the same 621 conclusion if the evidence had been before it. Even if it is new, even if it is material, the appellant has no right to have the conviction quashed because the court may still apply the principles of the proviso to Section 4. But if all those conditions are satisfied, there is an end to the matter.
In all conscience, which should not it be? How can a second trial in such circumstances be fair? There cannot be a real second trial. A second trial in such circumstances is, of its nature, a different trial altogether and cannot be called a rehearing of the same case. If the case is of any importance, it will have had publicity. The appeal will have had publicity. The jury will have heard about it. The judge, of course, will conscientiously tell the members of the jury to put it all out of their minds and pay no attention to it. This is advice which necessarily has to be given in a number of cases but it is advice easier to give than to follow. Knowing relevant facts, but making certain that they do not influence one in reaching a decision, may be a good judicial principle, but, in practice, with ordinary jurymen or, indeed, with judges as well in many, if not all, cases, it is something almost impossible to achieve. One cannot have a fair trial in the circumstances.
What is to be the nature of the new trial? Is the evidence to be the same as before? Can the prosecution, having heard what the new evidence is and having heard it canvassed and discussed in the Court of Criminal Appeal, call evidence in rebuttal, or is to be confined to the evidence which it called in the first place?
I ask, as was asked by an hon. Member opposite: how often is this to happen? We have all been appalled by certain American cases in which there have been retrials year after year over 10, 20, or even 30 years. There is no Member of the House who would want a series of retrials like that, but there is nothing in the Bill to prevent it. And, in principle, once one accepts the principle of the Bill, why should it be prevented? There may be new evidence at any time, and it may happen more than once or more than twice. If the Bill is given a Second Reading, I hope 622 that there will at least be an Amendment to ensure that this operation can be performed once and once only, and that thereafter there shall be no further retrials.
I hope, also, that what seems to me to be the extremely clumsy drafting of Clause 1 will be drastically reviewed. I hardly know what some of it means, and I shudder to think what interpretations the Court of Criminal Appeal might put upon it. The Clause begins:Where an appeal against conviction is allowed by the Court of Criminal Appeal by reason only of evidence received or available to be received by that Court under section 9 of the Criminal Appeal Act, 1907.…The question has already been asked: under Section 9 of the Criminal Appeal Act as it stands, or under the interpretation of additional evidence which has become common form in the Court of Criminal Appeal? Which is it? The right hon. Gentleman said that this was merely a matter of procedure for the discretion of the Court of Criminal Appeal. I cannot accept that view, and, in all humility, I suggest that it is an unsound view.
It should be for the House of Commons, for the Queen in Parliament, to determine what is the nature of the new evidence which will empower the Court of Criminal Appeal to order a second trial, not for the judges, not for the court. Parliament is the sovereign authority which makes our law, not the passing decisions of evanescent judges whose advice on such points has usually been unsound and always illiberal. I hope that we shall have an Amendment making clear what is the nature of the new evidence which the Court of Criminal Appeal is to admit.
The subsection goes on:and it appeals to the Court that the interests of justice so require …What does that mean? At present, it is taken for granted that, if a man shows that a conviction is unsafe by reason of new evidence which the Court of Criminal Appeal accepts as making the conviction unsafe, it is in the interest of justice that the appeal should be allowed. It has never been necessary to say so. The Court of Criminal Appeal is empowered to quash the conviction, without requiring any other condition to be satisfied.
623 If the evidence is the right kind of new evidence, if it induces the right kind of doubt as to whether the verdict of the jury is tenable, then the interests of justice require that the conviction be set aside and a verdict of acquittal be ordered. But under this Clause the interests of justice are not taken to demand as of right and as a matter of course that there should be a new trial. The court has to take something else into consideration. First, it has to hear the evidence. Then it has to decide to quash the conviction. Then, in considering whether to direct a verdict of acquittal or to order a new trial, it has to consider whether the interests of justice so require.
This can arise only in a doubtful case. Therefore, if the court decides that the interests of justice, all the rest having been established, require a second trial, this is a plain indication that in the opinion of the Court of Criminal Appeal on the retrial there ought to be, the interests of justice requiring it, a conviction. It will certainly be so interpreted by the public, for if the court were satisfied that the interests of justice required an acquittal, it would, presumably, not order a new trial but quash the conviction there and then. Indeed, the right hon. Gentleman has said so. The mere fact that the Court of Criminal Appeal decides that the new trial is in the interests of justice is itself an embarrassment to the defence at the new trial, and cannot help but be.
Unless an urgent necessity, a compelling state of the facts, urgently requires this alteration of the law, which is a fundamental alteration of the liberty of the subject, we should hesitate long before we give the Government the powers which they seek. Why cannot they wait? Why not wait until the Committee which has been set up to consider the whole matter has reported? Why the haste to rush in with this narrow, controversial and wholly unsound proposal?
I hope that the Government will not ask us to give the Bill a Second Reading but that if they do, they will, as my right hon. and learned Friend the Member for Newport (Sir F. Soskice) said, give sympathetic attention to the drastic Amendments which would in that case be essential.
§ 6.51 p.m.
§ Mr. Scholefield Allen (Crewe)
I do not wish to repeat the arguments which have already been put forward, but I feel strongly on this matter. I have just celebrated the fortieth year of my call to the Bar. I have never wavered in my view that a man should not be put in jeopardy a second time. I have had strong opinions upon retrying a man when the jury have disagreed. This is a particularly bad practice in a borough or city where a recorder sits, where the jury comes from a limited district and where there is one newspaper which reports that "Joe Buggins", who has been tried for driving under the influence of drink, has got off but is to be retried. It is the subject of comment in the "pubs" and it is not possible to get a fair trial for him on the next occasion.
Every one of us knows that where we have had to take part in a second trial, it is a most peculiar sensation. There is something unreal about it. It is like coming back out of time and saying to oneself, "I have been here before". It sounds almost like a gramophone record asking the same questions in cross-examination.
If I had my way, once a man had been in jeopardy before a jury, once the jury had found that they could not agree, that would be the end of it. That, however, is not the law and the trial must be gone through again. That is my feeling about the matter and it is one reason why I reject any change in the law.
Once there has been the publicity of a trial, it is extremely difficult to get a fair trial. We know the effect of preliminary hearings before magistrates. My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) will remember the famous Wallace case in which there was great publicity in Liverpool on the opening speech of the prosecution, which occupied a whole page of the Liverpool Echo, in which there were 18 misstatements by the prosecuting solicitor and when the man was not then represented. When I went in as junior counsel, I had all that weight of the whole of South-West Lancashire directed against me. The argument was put, "If he did not do it, who did?" The jury convicted the man.
At the assizes, we tried to protect ourselves from a Liverpool jury, but it was 625 quite impossible. The jury came from South-West Lancashire. They had had all the publicity of the hearing before the magistrates and Mr. Roland Oliver, as he then was, who led me in the case, said night after night, "I can do no good with this jury. They do not listen." Some members of the jury were actually laughing. This was the result of publicity upon a trial.
In the result, the Court of Criminal Appeal did what it certainly had not done before and what I do not believe it has done since: it quashed a murder conviction given by a jury on the ground not that the conviction was against the weight of evidence—the Court of Criminal Appeal could not do that; it always ruled that out—but that there was no evidence at all, but merely suspicion.
That effect from publicity when a man is on trial for his life often turns a jury against considering the evidence. Mr. Justice Wright, as he then was, summed up in clear terms, telling the jury, though not in terms, that there was mere suspicion and that they would probably think that there was no evidence which pointed one way rather than the other. Notwithstanding this, the publicity had been damning. One gets the same kind of publicity when a man is retired.
For these reasons—and I adopt the reasons given by my hon. and learned Friend the Member for Stoke Newington and Hackney North (Mr. Weitzman)—the opinion at the Bar and on the bench is delicately balanced on this matter. I think, however, that members of the public are more in favour of the good old principle that, once a man has been tried, he should not be put in jeopardy a second time.
§ 6.57 p.m.
§ Mr. Roderic Bowen (Cardigan)
In his last two or three sentences, the hon. and learned Member for Crewe (Mr. Scholefield Allen) has—certainly not intentionally—incorrectly represented the position. As I understand, the overwhelming weight of opinion is in favour of a retrial and the major conflict relates to the circumstances in which the Court of Criminal Appeal should be allowed to order a retrial. I know of no great body of opinion which is opposed to the 626 granting of the power of retrial in certain circumstances to the Court of Criminal Appeal.
The hon. and learned Member for Surrey, East (Mr. Doughty) described the Bill as trifing and the hon. Member for Nelson and Colne (Mr. S. Silverman) referred to it as fundamental. On that issue, I have more sympathy with the attitude of the hon. Member for Nelson and Colne. The Bill, even in its present limited form, makes a basic change in the law by providing for a new trial. It is a basic change which is an inroad into the existing rights of an accused person.
From one or two of the observations made during the debate, one would have thought that the provision contained in the Bill for a new trial on the basis of fresh evidence was in some way conferring a right upon an accused person. In fact, it takes away from him an existing right. It is clear that, unless there is an alteration in the operation of Section 9 of the 1907 Act, in every case in which a new trial is ordered under the Bill the accused person will otherwise be entitled to have his appeal allowed. Therefore, whether the Bill remains in its present form or whether its scope is widened, this is an inroad into the rights of an accused person. The real issue is whether that inroad can be justified in the interests of justice.
I can understand the attitude of the three hon. and learned Members who have spoken and I can understand their objection in principle to the Bill. I do not agree with it, but I appreciate their point of view. On the other hand, if we once make this inroad, if we are prepared to concede that the law should permit a person to be placed in jeopardy for a second time, we should be prepared to extend the Bill to cover not only circumstances of a fresh trial, but circumstances in which a new trial is desirable because of misdirection. To suggest that there is any basic clash of principle in extending the provisions of the Bill is quite illogical. Whether the Bill remains in its present form or whether it is extended, it is an inroad into the rights of an accused person and it also involves placing a person on trial a sec and time. In my view, that 627 is a course which is justified in the interests of justice.
Uneasiness has been expressed about the attitude of the Court of Criminal Appeal in relation to Section 9 of the 1907 Act. It is clear that the point which those who are opposed to the Bill have made will be met at least in part if a change is made in that regard. It is not a question under the Bill of the Court of Criminal Appeal saying, "We are not sure whether we should quash this conviction and, therefore, let us order a new trial." I could well understand that if the Court of Criminal Appeal were in doubt about what it should do. It will exercise this power only when otherwise it would have to allow the appeal.
It is useful to refer to Section 9, because it is clear that the limitations which have been put on its operation by the Court of Criminal Appeal are not laid down in the Section itself. The words in the Section give power to the Court of Criminal Appeal to order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court whether they were or were not called at the trial. However, in its application of Section 9, it is clear that the Court of Criminal Appeal has taken the view that it would not consider any evidence except in exceptional circumstances. It has also applied somewhat rigidly the test of whether that evidence was reasonably available at the time of the trial.
This is a difficult matter, and one of the points which will have to be looked at in Committee is whether Clause 1 should be amended so as to lay down in more specific terms the circumstances in which the Court of Criminal Appeal should order a retrial. The Court of Criminal Appeal already has a general discretion in relation to fresh evidence and the interpretation of what is fresh evidence. I should not be opposed to adding to that general discretion specific instances in which it would be required under the Bill to order a new trial. I concede straight away that it will not be easy to draft Amendments to meet that point, but this is a matter which should be considered carefully in Committee.
628 I do not propose to canvass the arguments for extending the operation of the Bill to cover new trials on the basis not only of fresh evidence but of misdirection. All that I would say is that I am strongly in favour of an extension of the operations of the Bill and I am sure that in Committee we shall have the opportunity of going into all the arguments for and against extending the Bill.
hope that the Bill will be given a Second Reading and that it will be improved in Committee in the direction that I have indicated.
§ 7.5 p.m.
§ Mr. Niall MacDermot (Derby, North)
I wish briefly to state my reasons for supporting the Bill, particularly as I had the honour of being a member of the sub-committee of "Justice" which recently considered the working of the Court of Criminal Appeal and 'which has made an interim report specifically on the topic of the Bill to which the Home Secretary graciously referred. The sub-committee recommended an extension of the Bill in favour of an unrestricted power in the court to grant a new trial. I was one of the dissenting minority on that point. I think that the Government's proposals are right, and I should like briefly to say why.
As many Members have stated, this is a subject on which lawyers disagree profoundly. I think that they have always disagreed profoundly on it. It is also a subject on which they feel unusually strongly. It is sometimes thought by laymen that lawyers do not have strong feelings, but they certainly do on this subject. The reason for it is simple. What divides us on this issue is what we believe to be the true requirements of justice in the situation which we are considering.
There is a conflict of interest here. Suppose that a man has been convicted by a jury, but there has been some fault in the conduct of his trial on the part of the prosecution or an error in law or in direction on the part of the judge. Let us assume that he is guilty. Some people feel that it is wrong that he should be allowed to get away with it and therefore, naturally, they lean towards favouring an unrestricted power to grant a new trial. Other people—and I am one of them—are moved by 629 the consideration that to subject a man to a process of trial, particularly a full trial by jury, is a fearful ordeal. If he is innocent, it is oppressive to subject him to that ordeal twice. Once we concede that the person who has not had a proper trial, and who has been convicted by the jury may be innocent, we run the risk, if we grant a general power to order a new trial, of subjecting him to that ordeal twice.
One reason why I am very proud of our system of criminal law is that I think that it is heavily weighted in favour of the accused man. It is more heavily weighted in his favour than under most other systems of law. It is heavily weighted on the declared principle that we think it better that a number of guilty men should get away with it rather than that an innocent man should be convicted. I would go further and say that it is better that a few guilty men should get away with it than that a number of innocent men should be subjected to the oppressive ordeal of a trial.
It is for this reason that I am against the unrestricted power. I hear someone saying that I should be against the Bill completely. This has been the argument of the three hon. Members who have spoken. Why do I draw a distinction in the case in which a person says, "I have discovered fresh evidence"? It seems to me that this is an entirely different category. Any person who is accused of an offence is entitled to claim as of right a fair and properly conducted trial. If he has not had it, if there has been some error made in the way the trial was conducted and he has been convicted by the jury, he is entitled to claim to have that conviction quashed.
However, if he is not able to complain of anything which happened at his trial but has had a perfectly fair and properly conducted trial, with the Crown having called its evidence and he having called such evidence as he could find or as his legal advisers advised him to call, and the jury, nevertheless, convict him, it does not seem to me right that all that should be swept aside and that he should be set free merely because he has found new evidence. There has been no fault on anybody's part. He has nothing to complain of. I think that he has good grounds for saying 630 that the matter should not be allowed to rest there because a new situation had arisen and new facts had come to light and, therefore, he should be entitled to have the case reopened and reinvestigated. These are the reasons why it is right in such cases to give the court power to order a new trial.
I entirely agree with what has been said by critics of the Bill—that, as it stands, it will have virtually no effect. The reason for this is the extraordinarily restricted definition which the Court of Criminal Appeal has imposed on itself of the meaning, of "fresh evidence". This is something which is not laid down in Section 9 of the 1907 Act but it has nom become firmly established owing to our doctrine of precedent.
I ask the Attorney-General to make clear his view on this matter as a lawyer. The Home Secretary suggested that, under the Bill, the Court of Criminal Appeal in some way will be able 'to reverse the principles it has already laid down as to the meaning of "fresh evidence" and be able to give a much more liberal interpretation to it, granting a new trial in many cases where, at the moment, it would not be prepared to quash the conviction.
As I understand our doctrine of precedent, that is not the way in which the court will work. If we pass this Bill as it is, the only effect will be that, in some of those rare cases where, at the moment, the Court of Criminal Appeal quashes the conviction on grounds of fresh evidence, it will instead grant a new trial. Such cases will be very rare and the effect of the Bill will be extremely slight.
What we want is to make it clear that we intend the court to have an unrestricted discretion, unfettered by previous precedent. My hon. and learned Friend the Member for Ipswich (Mr. D. Foot) has drawn attention to a case in which a witness who, under the existing rules, although available, is not called, through no fault of the defendant or his advisers but because he is a reluctant witness who is not prepared to give evidence or upon whose evidence one could not rely as being in one's favour, yet who, when he sees the appellant has been wrongly convicted, comes forward with his evidence.
631 But there can also be other types of case. There can be the case of a witness who is perhaps not a reluctant witness but who is not called by counsel, in his discretion, because one of the evils leading to the situation which we hope is about to be rectified is that, if counsel is put in the predicament of calling another witness, he loses the last word. Thanks to the hon. Member for Wycombe (Mr. John Hall), who has introduced a Bill to rectify that position, I hope that this predicament is one which we shall not have to suffer much longer.
Again, it may be that the appellant has instructed a solicitor who happens at that time to be exceedingly busy and has neither the staff nor the resources to make investigations to the extent that the case really requires. In these circumstances, the court could say, "If you had made proper investigations and put an inquiry you could have discovered the witness. Therefore, he is a technically available witness". Surely in such cases the court should not be restricted.
§ Mr. S. Silverman
Is my hon. and learned Friend saying that there should be no restriction, either, on the right to offer new evidence in the Court of Appeal?
§ Mr. MacDermot
I suggest that it should be entirely in the discretion of the court to decide whether the fresh evidence is such that, in the interests of justice, it should order a new trial. It is impossible for us to try and lay down definitions and formulae here. It should be entirely within the discretion of the court. All we need is a provision which will ensure that the discretion shall always be maintained and shall not be whittled down again by principles which purport to be laid down by the court, thereby restricting successor members of the court. I hope that the Attorney-General will say that the Government will consider favourably an Amendment on these lines.
A point not mentioned so far arises under Clause 2(5), which suggests that, at the retrial, a transcript of the evidence of any witness who gave evidence at the original trial may be allowed under two conditions. The first is with the agreement of the prosecution and the 632 defence, and I do not think that anyone would question that. But the second condition worries me. It is:… if the judge is satisfied that the witness is dead or unfit to give evidence or attend for that purpose, or that all reasonable efforts to find him or to secure his attendance have been made without success".My anxiety centres on the fact that a transcript can give a wholly false impression of the effect and nature of a witness's evidence. One may have a witness who testifies to certain facts, but who, under cross-examination, while sticking to what he has said, does so in such an unconvincing, prevaricating way that he is shown to be lying—so much so that the jury does not believe a word of it. However, if a transcript of that evidence is read out at a retrial it will look as if the witness, having given his statement, has adhered to it under cross-examination. He may appear to have been a most impressive and convincing witness.
It is true that there are now provisions whereby, it a witness dies, or becomes seriously ill between committal and trial, his deposition can be read out at the trial, although this procedure does not have the evil to which I have referred because, with few exceptions, a witness at committal proceedings is usually not cross-examined. The only result is that his original deposition is read and the jury warned to treat it with great care for the very reason that it was not subjected to cross-examination by the defence, which has not had the chance to challenge it.
That argument would not apply at a retrial under this provision, however, because it would be said, "The witness was cross-examined at great length and adhered to all his answers." I have serious doubts about the wisdom of this provision. This is, perhaps, a Committee point but I should draw attention to it tonight so that it can be considered carefully. Subject to these points, I hope that the House will give the Bill a Second Reading.
§ 7.18 p.m.
§ Mr. John Silkin (Deptford)
The Home Secretary very fairly pointed out that the bench and the Bar were divided on the question of the extension of the doctrine embodied in the Bill. I might add that while the Bar and the bench disagree 633 upon it it has been known for sons to disagree with their father upon it, and I find myself in that position tonight.
The truth is that I am rigorously opposed to any extension of the effect of the Bill. We know that in some ways this is a technicians' Bill, but we sometimes forget that it is also a question of human beings. I cannot help thinking that, if this doctrine were extended, the effect would be that there would be far fewer appeals, for every solicitor would have to say to every man who was convicted of an offence, and who wanted to go to appeal, "You realise that it may well be that you will have to face a trial all over again." It is at that moment, rather than the double peril, the jeopardy twice over, which has been mentioned, that injustice might occur. Consider the case of a man who has undergone three or four weeks of trial and whose counsel tells him that he might well stand a chance on appeal. Despite that possibility, in many cases he may resign himself to not appealing.
The other point which occurs to me is the question of what happens when a jury disagrees, a question which has been raised by some of my hon. Friends. If the Court of Criminal Appeal decides that a case should be heard again and should be referred to another jury, it is just possible that there might be a balance of evidence strong enough to force the jury to disagree and then, unless the Bill is amended, there might he a game of what one might call judicial snakes and ladders, with the appeal going up to the Court of Criminal Appeal again and then being referred back again because fresh evidence has arisen on the second occasion.
I am not entirely convinced that the Bill as it stands is wrong. I think that there is a case for it, but I believe that it could be favourably amended in Committee. As I have said, I would be very much opposed to any extension of its principles.
§ 7.21 p.m.
§ The Attorney-General (Sir John Hobson)
I am grateful for the welcome which has been generally given to the Bill and for the powerful support lent to it by the right hon. and learned Member for Newport (Sir F. Soskice), the hon. and learned Member for Ipswich 634 (Mr. D. Foot), and the hon. and learned Member for Derby, North (Mr. MacDermot). As the Home Secretary said, this is a matter which has been very fully debated for nearly a hundred years, more especially since 1907. In the debate today we have again found a marked division of opinion. Whereas when the Bill was debated in another place last month the principle question was whether the powers of the Bill should be further extended, the principal argument today appears to have been whether the Bill should be passed at all.
I have been keeping a score sheet during the day and I have observed with mixed regret and pleasure that almost every speaker has been a lawyer. The score, so far as the lawyers are concerned, is that three of them are against the Bill, four in favour of it as it stands and two in favour of extending its powers and giving power to order a new trial upon any ground and not merely on the ground of fresh evidence. The only speaker in the debate who was not a member of one or other of the legal professions was in favour of the Bill as it stood, and he was the Home Secretary.
The committee of "Justice" said that it thought that lawyers were particularly qualified to deal with this matter. To some extent I agree, because lawyers have considerable experience of criminals and of the way in which criminal trials are conducted and of criminal procedures, but I am not sure that it necessarily follows that a lawyer is ultimately the best person to judge these matters. A lawyer ought to disentangle the arguments and point out the consequences, but fundamentally one comes back to a position which concerns lawyers and ordinary citizens alike. As the hon. and learned Member for Derby, North said, lawyers are very much concerned in that their sense of what is right and fair and just is involved, but the citizen ought also to consider the implications of a Bill of this nature, because it involves a clash between two principles.
The first is that it certainly is in the public interest that the administration of justice should secure the conviction of the guilty and that obviously guilty men should not escape merely through tech 635 nicalities. This was the basis of the support given in another place for extending the occasions upon which new trials could be ordered. However, the second principle is equally if not more important and is in direct conflict with that. It is that justice should be swift and that the citizen should not be tortured by a multiplicity of proceedings, nor harassed by repeated trials, and that one should not involve anybody in criminal proceedings more frequently than is absolutely necessary in order that justice should be both done and seen to be done.
It is that clash between those two principles which has produced the disagreement in the House between those who wish to give wider powers in the Bill, and those who wish to stand on the Bill. It is adherence to the second of those principles which has inspired those who are wholly opposed to the Bill and who wish to leave the law as it stands. Whatever may be the consequences in terms of the number of cases affected, this is a matter which affects both the liberty of the subject and the administration of justice, and these must always be important considerations however infrequently they may apply. We have many provisions of the law which are of infrequent application or operation but which are a very important safeguard for the liberty of the subject and the form of law under which we live.
Part of the difficulty of the subject which we have been debating today is that the basis of the difficulty is seldom recognised. It is that the ultimate decision on all facts in indictable criminal offences is committed to a jury, and most people in this country still rightly regard the jury as the defender of the liberty of the subject. It does not matter what the judges think, or what the Government think; it is the jury which ultimately matters. When that is built in as the foundation of our system of criminal trial, one is in an almost impossible position when there is additional evidence which the jury has not had the opportunity to consider.
This is what has created the difficulty and this is the justification for the Bill. When additional evidence becomes available, the choice is not between allowing the judges to try to estimate what effect it might have had upon a 636 jury, having assessed its worth, relevance and importance, which means that the duty of deciding must be carried out by a court which hears only part of the evidence given orally while reading the rest in a transcript and then trying to make an assessment; and, saying that on questions of fact the jury must be the judge. If someone feels that he should have another chance of establishing his innocence because there is more and better evidence than was available to the first jury, the alternative, and it is the right alternative, is to allow a new jury to reconsider the whole of the facts and the evidence together and to leave in the hands of the jury the responsibility of protecting the liberty of the subject.
The hon. and learned Member for Ipswich thought that the way in which the Bill was introduced was an illustration of the way in which law reform came about, and he promised that a Labour Government would behave in a wholly different manner and that we would have from them floods of reform of every nature. I am bound to say that I was a little surprised considering that right hon. Gentlemen opposite were in office in 1948 when this amendment of the law was first rejected.
§ Mr. S. Silverman
The right hon. and learned Gentleman will remember that on that occasion his party did not vote and that when the Attorney-General of the day advised the House of Commons not to agree with the Lords' Amendment, everybody in the House of Commons agreed with him, including the right hon. and learned Gentleman's party.
§ The Attorney-General
They did not take it to a vote, but I think that it was the present Lord President of the Council who originally put forward the proposal which is now incorporated in the Bill before it first went to the House of Lords.
Be that as it may, to complain that this Government do not indulge in law reform is a little harsh when one remembers that in the present Session of Parliament, which is the last of this Parliament, the Home Secretary is going to introduce for the first time anywhere in the world a scheme for the compensation of victims of crime; we are adjusting the administration of justice in London; 637 we are passing the Police Bill; a Conservative private Member is altering the order of speeches in criminal trials in a Bill, which received a welcome in the course of today's debate; and the Government have introduced a scheme to help successful unassisted litigants who are opposed by assisted litigants.
Since 1959, in the course of this Parliament, 44 Measures have been passed dealing with reforms of the law; 15 of them were promoted by private Members, but 12 of those were promoted by Conservative private Members with Government support. I therefore do not think that one ought to indulge in these polemics, and with a cursory glance at the hon. and learned Member for Ipswich I return to the Bill.
§ Mr. D. Foot
Perhaps the right hon. and learned Gentleman will explain why the Government have been sitting on the recommendations of the Tucker Committee for nearly 10 years?
§ The Attorney-General
As I have been a Member of the Government for only a short time, I do not think it would be proper for me to contemplate what my predecessors were thinking about during that period.
There is one point which has led to a great deal of debate and has clearly troubled even those who give general support to the Bill. It was raised by the Committee of "Justice", and also by the right hon. and learned Member for Newport, namely if the Bill is passed in its present form, what will be the practice of the Court of Criminal Appeal in considering fresh evidence, and to what extent will the C.C.A. be bound by the rules which it has so far laid down before it will consider any fresh evidence?
I am authorised to say that it may be that if this Bill is enacted the court will consider it desirable to review its practice having regard to the provisions of the Bill. I know that that does not go very far, and I propose to elaborate it later. I do not think that it is right to say, at least on matters of practice, that the C.C.A. is bound by the doctrine of stare decisis, and there is authority for the view that, where the liberty of the subject is involved, the C.C.A., at least on points of practice, and probably on matters of substance, is entitled not to 638 regard itself as bound by its previous decisions. Naturally it pays great regard to its previous decisions, and one would not expect it to depart from them readily, but perhaps I should explain to the House the present position about the admissibility of evidence. It is not perhaps as rigid as one might think, and there is some elasticity in it. There are three rules.
First, the evidence must be evidence which was not available at the trial. There has been a case recently in which a wife wanted to give evidence for her husband. She was available at the trial, but, due to a misunderstanding, she was not called. Because the C.C.A. thought that the administration of justice and the liberty of the subject was overriding, it admitted that evidence, thus showing some appreciation of the fact that there is, and ought to be, some elasticity in these matters.
§ The Attorney-General
I do not have the actual reference, but the case was referred to by the Lord Chief Justice in his speech in the other place. I shall try to find it for the hon. Gentleman.
There will arise a difficult question about whether a confession made by third parties which would not be admissible on the retrial, will be heard by the C.C.A. as a ground for ordering a new trial because it may indicate innocence. I remind the House that the law as laid down by this House on this topic is in Section 9 of the 1907 Act which gives the C.C.A. a complete discretion to call evidence before it if it thinks it is necessary or expedient in the interests of justice. It is in pursuance of that provision, which is the overriding direction from Parliament to the C.C.A. that the court has up to now, when it has no power to order a fresh trial, laid down for itself some rules which have been applied with some elasticity in considering when it should or should not hear additional evidence.
The last two rules cannot be open to any objection. The first of these is that the evidence must be relevant to the issue. One cannot imagine that a court ought to consider granting a new trial on evidence which is wholly irrelevant to the case. The third rule is that the evidence must be credible, and I imagine 639 nobody would expect the court to order a new trial on evidence which it does not find credible. That is common sense.
Therefore, it comes back to the first rule which is the only limitation of importance, and that is whether or not the evidence was available at the trial. One can see that if we departed from that rule we would get into the difficulty that an accused person might decide to run one defence and not call, for example, his alibi evidence, and then decide to run an alibi when he gets to the C.C.A. because he wants to try another defence. It surely cannot be held that people should be entitled to claim fresh trials when they behave in that way.
I agree very much with what the hon. and learned Member for Derby, North said about it being impossible for the House to formulate rules as to the circumstances and the evidence which the C.C.A. ought to take into account before it makes an order under this Bill if it is passed in its present form. I recognise that this is a difficult problem. I should like to give it further consideration, and if Amendments are tabled in Committee they will be discussed on their merits. I cannot give undertakings about Amendments which I have not seen and when I do not know what they contain. All I am saying is that I recognise that the anxieties of hon. and learned Members who have spoken are devoted to a point which requires very careful consideration, and I assure the hon. and learned Member for Derby, North that I shall give it that consideration.
There are two Amendments about which I should perhaps tell the House now, as it may be convenient for hon. Members to consider them. The Bill as it stands only enables an appellant in respect of whom a new trial is ordered to be tried either for the offence of which he was convicted at the original trial, or an offence charged at the original trial as an alternative count. It is proposed to introduce an Amendment to cater for a third set of circumstances, namely, where it becomes apparent to the C.C.A. on considering fresh evidence and deciding to order a new trial that the appellant should be tried not for the offence of which he was originally convicted, but for another 640 offence of which he could have been convicted on the original indictment.
For instance, he might have been convicted of murder. The C.C.A. might think that he should not be retried for murder, but that he should be retried for manslaughter because the fresh evidence indicates that there ought to be a retrial for manslaughter, which, being an alternative, lesser verdict, the jury might have convicted on, but had not done so because it convicted the appellant of the more serious charge. I mention that so that hon. Members who are interested might consider its implications.
The other Amendment concerns the power of the court at the second trial to grant costs. This is a very technical matter. It is thought that probably the court of second trial ought to have a slightly wider discretion to order the payment of the costs not only of that trial but of the previous proceedings, because it will be the court which is sitting at the final conclusion of the matter, and which can review the whole proceedings and take account of all that has gone before.
I entirely concede that, logically, the arguments which were advanced in another place, that we should endeavour to see that accused persons do not escape on a technicality and that justice is done not only to the accused but to the prosecution, have some force. But they have been considerably overstated. Everybody who has put them forward has overlooked the balancing factor of the overriding objection to prolonging criminal proceedings in the case of individual citizens who have to go through them.
It is said, first—and my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) said it—that the guilty will continue to escape on technicalities; that the incidence of crime will probably be encouraged, and that the law will fall into contempt. That is putting the argument too high. The Court of Criminal Appeal does not allow appeals in the case of a guilty person unless there is a doubt about his guilt. Even where there has been a misdirection of the jury or some other defect in the procedure, even when the Bill is passed the Court of Criminal Appeal will still have the proviso to 641 Section 4 of the 1907 Act, and if it is satisfied on all the facts that the only proper verdict which could have been reached by the jury if everything had been done regularly is the verdict which the jury in fact arrived at, it has the power to dismiss the appeal.
Conversely, one cannot imagine that the Court of Criminal Appeal would ever order a new trial where it was quite obvious that the appellant was innocent, or ought to be acquitted, where for example the prosecution had a fatal flaw in some part of its case. Therefore, the area between is the only one with which we are concerned—the case where it is not obvious to the Court of Criminal Appeal that the accused person ought to be convicted, despite a defect, nor obvious that he ought to be acquitted, because of the defect. The Bill is intended to deal only with a situation where there is fresh evidence which either the accused wishes to bring forward or the Home Secretary believes should be brought to the attention of the Court of Criminal Appeal on grounds of public interest.
§ Mr. S. Silverman
Will the Court of Criminal Appeal retain the power to apply the proviso instead of ordering a new trial in cases where there is new evidence? That would seem to be an anomaly, for the Court of Criminal Appeal would be putting itself in the place of a jury in deciding that the new evidence would positively make no difference. That would be further diminishing the right of the appellant. If the Court of Criminal Appeal is not to apply the present position and quash the conviction and order the entry of judgment in the appellant's favour where new evidence has established a doubt, why should it retain the power of the proviso because it has come to the conclusion that there is no doubt?
§ The Attorney-General
As I understand it, under the Bill the Court of Criminal Appeal will have power to apply the proviso even though there is fresh evidence, but it would apply it only if it were satisfied that the jury would have come to the same conclusion even if it had had that 642 additional evidence before it. One can appreciate that this would apply only in a very limited field. Perhaps the court would be able to say that the rest of the evidence was so overwhelming that the fresh piece of evidence—because of its irrelevancy, or its smallness, or its unimportance, or its lack of credibility—would not have persuaded any jury from coming to the same conclusion, that the accused was guilty.
§ Mr. S. Silverman
Is not that in direct conflict with the only ground on which the right hon. and learned Gentleman has defended Clause 1, namely, that if it is a question of fact it is for the jury properly directed at a trial to weigh the facts and come to a conclusion on those facts—and that it is not a matter for the judges? If the right hon. and learned Gentleman is abandoning that principle in favour of the proviso it is difficult to see what case is left for Clause 1.
§ The Attorney-General
At first sight that sounds attractive, but is it not the position that the judges, without entering into a conclusion of the whole matter but considering all the evidence, one side against the other, may in a very limited number of cases, at the extreme end, be able to say that even with the additional evidence—owing to its nature; its irrelevance or smallness—the rest of the evidence is so overwhelming—for instance, if there is a direct confession by the accused—it would make no difference?
It may be that to some extent they are entering into the field of assessing evidence, but they are not entering into a field where there is a sharp, direct and important conflict of evidence which might have resulted in the jury's arriving at a different conclusion if it had had the fresh evidence before it. Where there is an important conflict of evidence it is right that another jury should be given the responsibility of considering once again that conflict of evidence.
It is also argued that as we already have retrials where a jury has disagreed, why should we object in this case to having a retrial in the event of fresh evidence coming to light? Conversely, those who oppose the Bill from the other end say that they would not wish for a retrial even in the case of a disagree 643 ment. They logically follow up that argument by saying that we should not have a retrial even in the circumstances referred to in the Bill.
But remembering what will happen under the Bill and what would happen with a disagreement, one can see that there is a substantial difference. Where there is a disagreement the matter has not been concluded at all. The second jury do not know what conclusion the original jury would have reached. Furthermore, the matter has not been through the Court of Criminal Appeal, and to that extent the fact of having a first trial, going to the Court of Criminal Appeal and then going again to another jury, is something more arduous and more oppressive than simply having a retrial after nothing has happened except the disagreement, when the second jury knows nothing except that.
These distinctions are arguments against giving the right of a retrial even in the cases mentioned in the Bill. We therefore have to consider why, under the Bill, we should give power for a retrial. It seems to me that the criminal law has always adhered to the very strict principle that we ought to confine retrials to the absolute minimum. So far in our law the only retrials that occur arise, first, when there is a venire de novo, which is very rare. It occurs when the first trial is wholly a nullity and the accused has not been at peril at all, and therefore no conclusion has been reached. The second is in the case of a disagreement. The law has always thought it right that a proper conclusion should be reached and that there should be at least one retrial. I think that there is power to have any number of retrials following any number of disagreements, but the general practice of the law is that there is never more than one.
Finally, we come to our present position. The only justification for the extension of the principle that people should never be put through the process of a criminal trial more than once is that it is better that an immediate issue as to fact should come to a jury for decision. It must be for the jury, which is the protector of the liberty of the subject, to decide. It is unsatisfactory to leave judges to hear part of the evidence and consider transcripts on the 644 other part and then try to come to a conclusion on the facts.
This is the justification for the Bill and the reason why we can take a small step forward. It may be a small step. But I think it right that it should be a small step. It may deal with a few cases, but they are important cases in which the liberty of the subject and the administration of the criminal law are very closely involved. For the reasons which I have advanced, and which have been advanced by other speakers who have supported the giving of a Second Reading to the Bill, I ask the House to give it a Second Reading.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).