§ Order for Second Reading read.
§ 10.1 p.m.
§ The Attorney-General (Sir Elwyn Jones)
I beg to move, That the Bill be now read a Second time.
This is a Bill which, I hope and believe, will commend itself to the whole House. It implements the recommendations of the Interdepartmental Committee on the Court of Criminal Appeal, under Lord Donovan, which was appointed under the Administration of the party opposite by the then Lord Chancellor, Viscount Dilhorne, and the then Home Secretary, Mr. Henry Brooke. I feel sure that the House will wish me to pay tribute to Lord Donovan and his colleagues for the excellence of their Report and for the speed with which it was produced.
The Court of Criminal Appeal was set up by the Criminal Appeal Act, 1907. When it was established, the prophets of woe, who are always to be found when a measure of legal reform is contemplated, expressed fears that there would be an excess of appeals, that the court might have to work night and day throughout the year, that the costs would be very high, and that juries would convict too readily, relying on the court to adjust their decisions. The last, in the light of experience, is a very odd fear.
In fact, all these fears proved to be unfounded. Nevertheless, although the court has grappled admirably with its task over the years, and made many significant contributions to the criminal law, like all human institutions it has proved not to be perfect. The main criticism has been that the Court of Criminal Appeal has lacked the status of what is called a real court of appeal, because, apart from the Lord Chief Justice, it is manned by Queen's Bench judges who sit in judgment on the work of their brother judges but have no higher status. The Court of Appeal, on the other hand, is staffed by lords justices who are of superior status to the judges from whom the appeals come.
In addition, certain powers and procedures of the court have come under 1108 criticism over the years. New problems have been raised as the pressure upon the court has grown more and more severe with the rising volume of crime and prosecutions. The Committee's Report shows that between 1956 and 1963 the number of applications for leave to appeal more than doubled, and the number of appeals increased nearly threefold from 163 to 430. It was in these circumstances that it was thought desirable to have a thorough review of the status and functions of the court, and accordingly the Donovan Committee was appointed in February, 1964.
The Committee's analysis of the criticisms made of the constitution of the court and of alternative arrangements that were canvassed is fully set out in Chapter 2 of the Report, and I shall not trouble the House with it now. But it is noteworthy that no lay witness came forward to make any complaint about the court, and that the suggestion of a new constitution came entirely from the legal profession. I hope that I have not given it the kiss of death by saying that.
The Committee did not consider that the criticism of the status of the court would alone justify a change, but it was impressed by the difficulty that with the many other calls on the Queen's Bench judges the composition of the court was constantly changing. This resultant lack of continuity could, and very occasionally did, lead to inconsistent decisions being reached by different divisions of the court, and the Committee thought that some change was necessary to enable the court to cope with the increasing volume of work while following a consistent policy.
The Committee's proposal, which is implemented by Clause 1, is that the Court of Criminal Appeal should be abolished and its powers transferred to the Court of Appeal. That court will then have a civil division and a criminal division. To cope with the volume of work, the criminal division will normally comprise two courts and, when necessary, three.
As the Lord Chief Justice pointed out recently, appeals are at present coming in faster than they can be dealt with, and the situation is urgent and fairly critical. The Donovan Committee recommended 1109 that the first court, which would hear appeals, should consist of the Lord Chief Justice, a lord justice, and a puisne judge. The second court and, as necessary, a third court, would principally hear applications for leave to appeal, and these courts would be presided over by a lord justice and would include two puisne judges.
The Bill does not make any express provision for this, but some such arrangement will probably be adopted in practice. It is not intended that any formal distinction should be made between the functions of the two courts. Each will have jurisdiction to deal with appeals and applications for leave, and the channelling of the more substantial cases to the first court will be left to administrative arrangements.
The Donovan Committee thought it very desirable to retain puisne judges as members of the court so as to keep the Appeal Court closely in touch with the state of crime and give it the benefit of the experience which those judges are continually acquiring in the trial of crime and in the sentencing of offenders. With this conclusion the Government agree.
In any event, the lords justices by themselves could not possibly dispose of the whole volume of criminal appeal business without a very large increase in their number. However, although an important element of the Queen's Bench Division is thus retained in the new arrangements, the proposals go a long way to meet the views of those who think that the judicial standing of the Court of Criminal Appeal should be raised. After all, criminal appeals, where a man's liberty is at stake, are certainly not less important than civil apeals, which are mainly about money.
Clause 1 contains a number of detailed and technical provisions also which are made necessary by the proposed change of jurisdiction.
Clause 2 deals with the sittings and practice of the court. It is surprising to find that a trial judge can, under the present law, actually sit on an appeal from his own decision. In practice, this hardly ever happens, but the Government think it better that the rule should be made formally absolute, and accord- 1110 ingly the Clause debars a judge who has presided over a trial from sitting on an appeal or an application for leave to appeal from a prisoner convicted at that trial.
Clause 3 makes necessary changes in the administrative arrangements which support the court. Its general effect is to transfer the office of Registrar of the Court of Criminal Appeal to the Court of Appeal. One change the Clause makes which may be of interest to the House is that solicitors as well as barristers will in future be eligible for the senior posts in the Criminal Appeal Office. The Donovan Committee suggested that consideration should be given to this proposal, and the Government agree that it should be implemented.
Clause 4 is an important Clause, extending the grounds on which an appeal against conviction is to be allowed. The present grounds are set out in the well-known Section 4(1) of the Criminal Appeal Act, 1907, which reads as follows:The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal;'Then follows the famous proviso:Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.The Donovan Committee carefully discussed the question whether the court is or should be debarred from interfering with a jury's verdict because there was some evidence to support it and because it could not, therefore, be described as unreasonable. In particular, it was concerned and worried about the fact that the terms of the subsection that I have read, if strictly construed, gave virtually no protection to the innocent person who had been wrongly identified and convicted, provided that the evidence of identification was, on the face of it, credible. It recognised that in particular cases the court had, in practice and in fact, carried on allowing appeals on 1111 grounds which implied that it thought after considering the weight of the evidence that the jury's verdict was unsafe or unsatisfactory.
But the Committee thought that any doubt should be removed by putting those words, "unsafe or unsatisfactory" into the law. The Bill adopts this proposal and will give the court an express power to allow an appeal where, under all the circumstances of the case, it comes to the conclusion that the verdict is "unsafe or unsatisfactory".
Clause 4 also deletes the word "substantial" from the proviso. This is because the Committee says that the word was devoid of any practical significance. Under that proviso the court may at present dismiss an appeal even though one of the grounds for allowing an appeal is established if it thinks that:… no substantial miscarriage of justice has actually occurred.The Clause also makes a change in the immediately preceding words of Section 4(1) of the 1907 Act to take the new form of the proviso. This last change was not recommended by the Donovan Committee, but is a necessary consequence of deleting the word "substantial" from the proviso. One of the reasons for which, as the law stands, the court must allow an appeal against conviction, unless it applies the proviso, is if it thinks that on any ground there was a miscarriage of justice. If nothing more was done than to delete "substantial" from the proviso the subsection would have the nonsensical effect that the court was to allow the appeal if satisfied that on any ground there had been a miscarriage of justice but might dismiss it if satisfied that there had not been a miscarriage of justice.
The Bill proposes to place the words:on any ground there was a miscarriage of justiceby words which are considered to have the same effect, that is:there was a material irregularity in the course of the trial".The subsection, in its amended form, is intended to preserve the distinction, recognised by the Court of Criminal Appeal, in operating the subsection as it stands, that is to say, that although there may have been an irregularity during the 1112 trial, it may apply the proviso and dismiss the appeal if the court is satisfied that a reasonable jury, properly directed, could not have done other than convict.
Another important change made by the courts is that by Section 2(2) the power to increase sentence on appeal against sentence is removed. The Committee reached the conclusion that this power, which, after all, can only be exercised when the prisoner has himself appealed in the belief that his sentence is too heavy, had such undesirable features that its retention could not be justified by the very few cases each year when an adequate sentence is substituted for an obviously inadequate one. The House may like to know that during the 10 years from 1955 to 1965, on average only three sentences a year were, in fact, increased. The Committee's views, with which I agree, and which I do not think I need repeat, are set out clearly in paragraphs 185 to 206 of its Report.
Clause 5 deals with computation of sentence, and is of great importance to an appellant. It deals with a subject about which I am sure many hon. Members will have had letters from constituents from time to time. It provides that the time during which an appellant is in custody pending the determination of his appeal shall be reckoned as part of his sentence unless the court gives a specific direction to the contrary. This is already the position in Scotland, and it does not seem to have had any particularly disastrous consequences in that part of Britain which, curiously enough, so often has given a lead in these matters in the past, and I say that without enthusiasm, coming as I do from the Principality. However, that is the position in Scotland at the moment.
The present law is that the time spent awaiting trial does not count as part of the sentence, unless the court makes an order that it should count, and in practice, as the Committee found, time tends to be lost more or less automatically, and not merely where the appeal is obviously frivolous. An unsuccessful applicant as a result may serve up to 63 days more in prison than he would have done had he not appealed at all.
The Committee receive many criticisms of the present rule, on the ground that in principle it is unjust, and in practice 1113 arbitrary. The Committee thought that it could only be defended as a barrier against a potential flood of hopeless appeals, and it recommended that, if only as an experiment, the practice should be changed. Moreover, at one time there was a considerable difference between the prison conditions of those who were actually serving their sentences and those who had given notice of appeal. With the general improvement of conditions in prisons, this consideration has now lost its force. I should, however, remind the House that the court will retain power to penalise an appellant where the appeal is totally devoid of merit.
Clause 6 does not stem from the Donovan Report. It deals with recording of criminal proceedings, and implements a recommendation in the interim report of a committee on the mechanical recording of court proceedings which was set up in 1964 under the chairmanship of Mr. Justice Baker.
There is clearly a possibility that in due course we may wish to make greater use of mechanical recording in the place of shorthand notes. Taking shorthand notes of court proceedings is a very skilled occupation, and we are very much in the debt of the court shorthand writers who have given, and indeed are giving, excellent service to the courts. But it is not easy—indeed, it is becoming harder—to recruit a sufficient number of these highly skilled experts, and there is a strong case for experimenting with other forms of recording.
Among other things, there would obviously be a saving in time if trans-scripts could be satisfactorily typed from a tape, though this is likely to require a high degree of skill, and I cannot say whether or to what extent mechanical recording will prove practicable. Mechanical recorders are, in fact, already being used on an experimental basis in the Law Courts and it would obviously, as the Baker Committee has suggested in its interim report, be desirable to extend this experiment to criminal courts.
To do so would require an amendment of the law, and this is done by Clause 6, under which it will be permissible to record criminal proceedings by way of shorthand notes or mechanically, or in any other way possible by means of some 1114 perhaps so-far undiscovered invention. The Clause also provides for supplying the transcripts of criminal trials.
I will deal briefly with the remaining Clauses. Clause 7 makes a minor amendment of the law relating to the expenses of persons attending court to give evidence. Clause 8 and Schedule 1 bring the Courts-Martial Appeal Court into line with the new constitution and powers of the criminal division of the Court of Appeal. Clause 9 provides for consequential and minor Amendments and repeals; Clause 10 relates to the power of the Court of Criminal Appeal of Northern Ireland and Clause 11 provides that the Bill shall come into force on an appointed day, and enables different days to be appointed for different parts.
I should also mention Paragraph 1 of Schedule 2, which extends the time limit for giving notice of appeal, or of an application for leave to appeal, to 28 days. The shortness of the present limit of ten days has been widely criticised.
I submit that the Bill brings about a very important improvement in the machinery of criminal justice, and I commend it to the House.
§ 10.21 p.m.
§ Sir John Hobson (Warwick and Leamington)
My hon. Friends and I welcome the Bill. We are grateful to the Attorney-General for explaining so fully what it is intended to do. We are glad to have this fruit of the labours of the Donovan Committee, appointed in February, 1964, by my noble Friend Lord Dilhorne and the then Home Secretary, Mr. Henry Brooke, as he then was. It is yet another example of the present Government—who have now been in office for two years—having in its law reform locker only the fruits of the labours put in hand by the previous Conservative Government.
We remember with a rather wry smile the promises of the Prime Minister in May, 1964, that all their law reform measures would be carried out in the first three months in office, while they prepared their major policy measures with the Parliamentary draftsmen. We know that they have only just produced the Steel Bill. They have not produced any law reform measures except what we left behind. All that their promises seem 1115 to be founded on in reality are the promises of the Fire, Auto and Marine Insurance Company. It is only the credit balance which we left which has enabled them to implement some small measure of law reform.
I join with the Attorney-General in expressing the thanks of the House to Lord Donovan and all the members of his Committee for the admirable work they have done. They have greatly eased the labour of the House, because a reading through of the Report shows what the problem is. They have identified the problem, and the Bill is the result of adopting their recommendations.
This is one of the Bills that one would have hoped would get away from the deplorable practice of legislation by reference. A Bill that is more difficult to read without having all the old statutes in front of one is difficult to imagine. We know the considerable enthusiasm of the Lord Chancellor and the Attorney-General to codify and clarify the law and make it comprehensible, so that the ordinary citizen can pick up the Bill and see what it is about. With this Bill it is necessary to refer to two previous statutes to see what it is about.
Those who have studied debates in another place will discover that there has been some correspondence between the Lord Chancellor and Viscount Colville of Culross, and we would like to know why the Bill has had to be produced in this form of legislation by reference. We know the difficulties, but I hope that there will be some explanation why the Bill could not have been framed in a codified and clarified way, so that the ordinary citizen could read it and understand it.
I do not regard the Bill as a really dramatic and radical change in our criminal procedure. I accept that the Court of Criminal Appeal probably should have a higher status and, as a result of this Bill, we are told that, instead of the Lord Chief Justice and two judges of the Queen's Bench Division sitting on criminal appeals, the Lord Chief Justice, one Lord Justice of Appeal and one judge of the Queen's Bench Division will sit to hear criminal appeals.
The total result, therefore, of this effort will be to substitute one lord justice for 1116 one Queen's Bench judge and put it all under the umbrella of the Court of Appeal, instead of the Divisional Court or its equivalent. I am sure that that is an improvement—I would not criticise it; it might well have some advantages—but I cannot think that it is likely to lead to a tremendous and dramatic change in the way in which criminal appeals are handled.
The Attorney-General told us—what we all know—that the number of appeals has created a critical situation for the judiciary, who have the heavy burden of deciding and considering criminal appeals. I should like to ask the Attorney-General—I do not know whether he is able to tell us this evening—how he sees the improvement in this critical position in the autumn when the Bill, we hope, will be operating. How many new lords justices will be appointed and will the lord justice who usually sits with the Lord Chief Justice be fairly permanently in the Criminal Division of the Court of Appeal, or will the lord justice be changed round?
This is important, because I have always felt that no single human individual is capable of spending all his life considering the criminality of his fellow citizens and that every judge requires a little refreshment considering either divorce or civil cases or both, as well as crime. I hope that we shall not have a permanent lord justice who becomes, as it were, the Old Bailey representative in the Court of Appeal, but that there will be a change occasionally of the lord justice dealing with crime.
I hope that we will also be told how large an increase there will be in the staff of the Registrar, of what nature it will be and how rapidly and to what extent the speed-up will take place. I am sure that we all realise that it is urgent. We on this side are anxious that the Bill should get through Parliament before the Summer Recess, so that it may be available for the machinery to be operated by the time the courts open next October.
There is only one substantial point still at issue between the two sides of the House and it is a very small one. We think that it is probably a good thing to retain the power to increase sentences when a man has appealed against his sentence. Although I understand the 1117 statistical argument that it is a power which is very seldom used, that is not an argument against a power. Powers which are seldom used are often very useful because they are there in reserve. There are occasions when impudent appeals against sentence are brought, and it is right that the Criminal Division of the Court of Appeal should do what it can to make the sentences as equitable, between man and man, as is possible.
I realise that the opportunities may be limited, but there is nothing unjust in saying that a man who has got off too lightly and has to that extent been treated' inequitably compared with his fellow convict who has been given a proper sentence, should have his sentence increased by the Court of Appeal, if he takes a chance or has the impudence or stupidity to appeal against a sentence which is very much too light. It is a very small point, to which we should like to return in Committee. I hope: hat, when we do, we shall have more than a quarter of an hour this Friday afternoon, because that would be inadequate.
The only other matter which I would raise with the Attorney-General concerns Clause 6 and the interesting development in using recording machines in criminal proceedings. Of course, the oddity is that we are legislating in a criminal appeal Bill for what is really the mechanistics of trial, in the first instance. While this might just be within the scope of the Bill it is rather an odd way of doing it and not a very convenient way of considering the implications for a criminal trial of mechanical recording.
There is a drafting point in the Bill which surprises me, and that is that the Criminal Division of the Court of Appeal and the Home Secretary are apparently to be provided only with a transcript of the mechanically recorded tape. I cannot imagine why they should not have the advantage, if they wish, of listening to the tape itself and why the Home Secretary should not be allowed to send for the tape if he wishes to hear it. We shall put down an Amendment on this point.
By this Clause we are simply transferring to the Rules Committee the mechanics for modernising the recording of criminal proceedings and we are not 1118 taking any responsibility in this House. I realise the administrative and legislative convenience from the Government's point of view of doing this, but it is a matter to which we should pay attention and one which will be of great interest not only to practitioners but to accused persons in the course of their trials hereafter.
There are some points which we want to raise in Committee, but, subject to them, we welcome the Bill. We are glad that the Government have implemented the Donovan Report. We hope that the new machine will be in operation by the opening of the law term next October and that it will do something to speed up the critical situation which exists in the hearing of criminal appeals.
§ 10.32 p.m.
§ Mr. Paul B. Rose (Manchester, Blackley)
I do not intend to keep the House for more than a few moments on a Bill which I warmly welcome, but I wonder whether the Attorney-General, or whoever is to reply, would be a little more definite about the problem of the current delay in appeals and how far it is expected that this reorganisation will help to expedite the hearing of appeals.
In view of the way in which the Registrar's department of the court is always so helpful and forthcoming to counsel, it may seem churlish to underline the current difficulties, but I emphasise that far from being a criticism of the court, which I am sure is as anxious as anyone to deal with this problem, it is a reflection of the enormous increase in its work. The enormous increase in the number of appeals is shown quite unmistakably by the Report of the Interdepartmental Committee, in the table on page 11. This shows that whereas in 1951–52–53 there were 189, 132 and 199 appeals respectively, in 1961–62–63 there were 401, 473 and 396. The number of applications for leave to appeal had approximately doubled during the decade.
In a series of very thorough and helpful Answers which he gave me last year in relation to the year 1964, the Attorney-General revealed that the average time spent by prisoners in custody before leave to appeal was granted was 16 weeks; that in that year 49 appeals against conviction were successful; that in those 1119 cases 14 weeks had elapsed before leave to appeal was given; and that 27 had been in custody and no compensation was granted although the average period spent in custody in those successful appeals was 18½ weeks. In addition, 15 of those 27 appellants had been refused bail and no application had been made in eight cases.
A recent example of this kind of situation occurred where there was an appeal by a young man against conviction of a first offence for which he was sentenced to nine months' imprisonment. By the time his appeal was heard—in which he was successful—he had served five months' imprisonment, which would be five-sixths of his effective sentence in that case. Meanwhile, his wife and five children were living on National Assistance. It seems a pity that provision is not made in the Bill for automatic compensation in this kind of case, and it also raises another aspect which was looked at by the Committee—the question of bail.
A recommendation was made thatWhile there are objections to any substantial extension of the grant of bail, the Court should consider steps which will ensure that the exceptional case where bail would be justified is always sympathetically considered.I know that this is a difficult problem, and it is always easy to be wise after the event when an appeal has been successful. It is not easy at the time of conviction and sentence. Nevertheless, in cases where an appellant's record is such that there is little likelihood of his committing an offence during the period when he is waiting for the appeal or that he would fail to appear in court, I would like to have seen an extension of the power to grant bail explicity written into the Bill and given to the trial court.
I know that the Report does not agree with that view. It states that the power to grant bail should be left to the appeal court and should not be extended to courts of assize or quarter sessions. In that case, however, I ask my right hon. and learned Friend the Attorney-General to say what proposals he has to deal with this kind of situation, in which a great deal of hardship is caused to many appellants—and to their families—who subsequently, are successful on 1120 appeal and yet have served a substantial term of imprisonment because of the delay before the appeal is heard.
I hope that as a result of these changes, which I warmly welcome, that sort of position will not continue and that it will be possible to have expedition of appeals in the future court.
§ 10.37 p.m.
§ Mr. Ian Percival (Southport)
I wish to follow up the point made by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) about the difficulties and dangers of legislation by reference to the extent to which we have it in this case. I can most briefly illustrate the point by reference to Clause 4, which purports to make changes in the law as distinct from changes in procedure and machinery.
In opening the debate, the Attorney-General said that it considerably extended the powers of the court. I am not sure that he is right, because the Lord Chief Justice has already said of Clause 4(1, a) that it merely gives legislative sanction to what the court now does every day; the Attorney-General said that Clause 4(1, b) merely uses different words to avoid the difficulty which would otherwise have arisen on the new proviso; and of Clause 4(1, c), which omits the word "substantial" the Lord Chief Justice, in another place, expressed the view that the presence or otherwise of that word does not make the slightest difference and that the court will continue to interpret these provisions as it thinks fit.
Assuming, however, that changes are being made, I suggest that in this and every other Bill it is important that if changes and improvements are intended, they should be clearly made. In this case, even to work out what is intended, one has to sit down with the 1907 Act, open it at Section 4 and go solemnly through Clause 4 of this Bill, where necessary crossing out words of Section 4 and inserting the words which appear in Clause 4. Having done that, one can then write out what will finally be the law.
§ The Attorney-General
At least, this legislation by reference sets out the previous provision referred to, and sets it 1121 out in the lines at the foot of page 4 and he top of page 5 of the Bill. One of the comforts of this is that one does not have to get the hooks to see what the original Act said. That much, at least, the draftsmen have done by way of great kindness to us.
§ Mr. Percival
I am obliged to the Attorney-General. I am sure that his intervention was meant to be helpful, and that the draftsmen meant to be helpful and kind in drafting Clause 4 as they did, but I suggest both to the right hon. and learned Gentleman and to the draftsmen that the only way to discover what is being done is by the tedious process which I have described. Then, one gets the wording that we shall have if the Clause is passed in its present form.
Lord Stow Hill, in another place, has done this exercise for us, and I should like to recite the result we shall produce if we have this Clause in its present form. We shall provide that the court shall allow the appealif they think that the verdict of the jury should Id be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or there was a material irregularity in the course of the trial, and in any other case should dismiss the appeal provided that the court may notwithstanding that they are of the opinion that the point raised in the appeal may be decided in favour of the appellant dismiss the appeal if they consider that no miscarriage of justice has actually occurred."—[OFFICIAL REPORT, House of Lords, 21st June 1966; Vol. 275, c. 2491I would ask the Attorney-General and the Home Office to consider before the Committee stage of the Bill whether that may be regarded as a wholly satisfactory form in which to produce these provisions.
I invite them to ask themselves what it actually means. The proviso appears to apply to all three limbs, but can there conceivably be a case in which the court comes to the conclusion that the verdict is unsafe or unsatisfactory but yet can say that no miscarriage of justice has occurred? Does it not follow that if the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law there must have been some miscarriage of justice? How is the proviso to be applied there?
1122 As to the third ground, of material irregularity, I think that the Attorney-General said that this was merely a new form of words to replace the words which said that if there had been a miscarriage of justice that was a ground for setting aside, and that the new form of words meant the same as the old—that this was to get out of the difficulty we would have if the ground that there was a miscarriage was followed by a proviso also using the word "miscarriage". Can one get out of that difficulty just by substituting one set of words by another that has the same meaning?
To develop the point further would be getting perilously near to what is a Committee matter, but I have made it for two reasons. The first is that I think that I may have said enough to illustrate what great difficulties one may get into by legislating by reference, even with such guidance as we have in this Clause; that there is, in fact, no substitute for setting out for one's own guidance the whole of the wording as it will be, as amended, if we pass this legislation.
My second reason is to invite the learned Attorney-General and the Home Office to give a little more consideration to this question before the Committee stage and to consider whether there is not a great deal to be said for redrafting Section 4 of the 1907 Act altogether—it would not be a difficult job—and, instead of amending it to substitute for it an entirely new Clause.
If we know what we are saying here, it should be easy to say in terms that the court shall allow the appeal on the first, or the second or the third grounds, and then add the proviso. I suggest that it would be very much more satisfactory, if we are trying to improve the law, to have it in that clear form in which it may be understood by all.
§ 10.45 p.m.
§ Mr. S. C. Silkin (Dulwich)
Like others who have spoken, I welcome the Bill. It always grieves me when the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) is leading for the Opposition on Measures of law reform of this kind, to hear from him again and again the sound, however sibilant, of sour grapes being sucked, apparently on the basis that the 1123 successive Measures of law reform introduced by this Government were not introduced all during the first 100 days. I congratulate the Government on the steady stream of measures of law reform which are coming forth, and which I am sure will continue during the next four years of this and the succeeding Governments of this party.
The general principle of the Bill is one which is generally accepted and it is, I think, desirable not only for the reasons given by my right hon. and learned Friend but also because it will assist in the process of producing consistency in legal decisions. We know that it is the same law which is being applied whether in criminal or civil jurisdicton. It certainly has happened in the past that the Court of Criminal Appeal has found itself in conflict with the views of the Court of Appeal, and this measure, I hope, will tend to prevent that sort of thing happening in future.
I should like to think that this is only the first step in a process which will be continued of bringing into greater logic the division of the appellate jurisdiction. I think there are many of us here who have never wholly understood the peculiar partnership between Probate, Divorce and Admiralty, for example, and although that applies to the High Court itself, of course it also applies throughout the judicial system.
I want to deal, in particular, with two of the Clauses of the Bill—first, Clause 4, which has already been referred to, and I hope I am not going to make a Committee point here. I should like my hon. and learned Friend to tell me whether the words at the end of subsection (2), where the court has to decide whether the sentence it proposes to impose in lieu of that which has been imposedis of greater severity than the sentence passed at the trial taken as a wholeare a term of art which are understood by the courts, or whether they are new words. I find it rather difficult to understand them and to apply them in particular cases.
For example, is it to be assumed that a sentence of imprisonment, however short, is always more severe than a fine, however great? What of a combination of the two? Again, suppose that a young offender has been sentenced to a short 1124 term of imprisonment. Would a substitution of borstal training be more severe, having regard to the fact that that can last for a period of two years at any rate, or would it be less severe? These are the sort of points which I hope will be cleared up during this debate.
I do not want to spend too long on points of that kind which may be considered to be of a Committee nature. I am more concerned with Clause 5. Here, I welcome the move to go at any rate some way towards ending the system of penalising an appellant for appealing. I disagree with the right hon. and learned Member for Warwick and Leamington on that point. My disagreement with the Government is that I do not think the Clause goes anything like far enough. I see no reason at all why an appellant should be in any way prejudiced or penalised for having appealed.
If I am told that this is a sort of reserve power to prevent what is called a frivolous appeal, then there comes to my mind the countless times on which the Court of Criminal Appeal has had before it a man with a very long record of convictions who is appealing against a sentence which, if deserts come into it, is very well deserved, but where the Court of Criminal Appeal says. "This man has never had a chance in his life" and puts him on probation even though the sentence itself was thoroughly justified.
So long as one has the possibility of a penalty being inflicted by the Court of Criminal Appeal, or the Criminal Division of the Court of Appeal as it will be, simply because a man has appealed against a sentence and his appeal is considered to be frivolous, one is imposing some inhibition upon people who might very well, if they appealed, be given a chance which will put them upon a better way of life in the future.
I wonder what reason there really is for giving even this remaining power to impose a penalty on such people. Certainly, if the suggestion that there should be a much greater use of bail in the course of an appeal were adopted, there would be very little reason for having this reserve power because in these cases the sentence would start, if the appeal were dismissed, from the point of the dismissal of the appeal.
There is one further point which I would like to ask my hon. learned Friend 1125 upon this Clause, and it is this. My right hon. and learned Friend reminded the House that at present the limit of penalty is 63 days. Now, is the effect of the new Clause as drafted that if the Court of Appeal does give a direction there may be no such limit in the event that the time spent under appeal is longer than 63 days? In other words, does this Clause give the new Criminal Division the right to impose a larger penalty than could have been imposed under the existing law?
If so, I should certainly wish that consideration be given to this during the Committee stage. These are the criticisms which I have of the Bill, and I suggest that in these respects it could go further than it has gone. But subject to that I, and I hope the whole House, give it a very warm welcome.
§ 10.55 p.m.
§ Mr. Antony Buck (Colchester)
Like everybody else who has spoken, I very much welcome the Bill, and I should like to add my congratulations to those already expressed to the former Lord Chancellor and the former Home Secretary for having set up the Donovan Committee to go into the whole of this matter.
The House must obviously be very grateful to that Committee for the speed with which it worked. Over a period of something like 18 months it obviously heard a mass of evidence and came to some very cogent conclusions, and it did so in what was, for a Committee of this type, a very short time. The Government are entitled to congratulations in perhaps a slightly lesser key because it has taken them only nine months to absorb the work of the Donovan Committee. It is a pity that it took the Government as long as nine months to work out a Bill on the framework of what the Donovan Committee suggested.
The matter of the composition of the Court of Appeal was dealt with specifically in paragraph 85 of the Donovan Committee Report, which set out the suggested composition of the new court which is to be set up. I fail to understand why those recommendations are not incorporated in the Bill. The Attorney-General has not dealt with the reason. I should like to hear why it is 1126 not thought appropriate to transplant into the Bill the exact recommendations of the Committee.
It has been suggested elsewhere that there is a need for flexibility. It seems wrong that we should leave to the judges the power to make the composition as they wish. We have the Attorney-General's assurance that the court will probably be constituted as recommended by the Committee, but it seems appropriate that we should have it in the Bill. I can see no valid reason against it.
Like the hon. and learned Member for Dulwich (Mr. S. C. Silkin), I welcome very much the inclusion of Clause 5. The hon. and learned Gentleman was wrong in suggesting that my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) had said anything against the Clause. Indeed, he did not say a single word against it.
§ Mr. S. C. Silkin
If I misunderstood the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson), I immediately withdraw and apologise.
§ Mr. Buck
That is the gesture that one would expect from the hon. and learned Gentleman. It was Clause 4 which came under some criticism from my right hon. and learned Friend.
I do not go along with the hon. and learned Gentleman in thinking that Clause 5 does not go far enough. I do not understand why it is thought appropriate that the Court of Appeal should not have a discretion in cases where there has obviously been a frivolous appeal not to allow the time spent in custody by the person to rank for sentence. I feel that the discretion should be unfettered in all cases. It is suggested in Clause 5(1) that the court should not have the discretion where leave to appeal has been granted or a certificate has been given under Section 3 of the 1907 Act. I do not understand why the discretion should be limited in that way. It is possible that the leave to appeal could have been obtained by gross misrepresentation or hoodwinking, but it seems appropriate that the matter should be unfettered there. It is only in extreme cases that the Court of Appeal will use its powers under the Bill, but it seems right that it should have these powers.
1127 I have two other points which are not within the realms of Committee points. The first one certainly cannot be so described. Why has it not been thought appropriate to implement the recommendation in paragraph 136 of the Donovan Committee's Report, which deals with fresh evidence? It was recommended that additional evidence should be received if it is relevant and credible and if a reasonable explanation is given for the failure to place it before the jury. It can be said that this is already being done through the dicta in the case of the Queen v. Kent, but it would seem to me to have been appropriate to make the matter crystal clear by incorporating the recommendation in the Bill.
I reinforce what my right hon. and learned Friend said when he spoke about the use of recordings of trials before the Court of Appeal. One of the reasons given in the interim Report of the Donovan Committee for mechanical recording of court proceedings was that it did away with any possibility of there being, as it were, an interpretation of that which is taken down in shorthand. It would seem appropriate that the Court of Appeal should have power to hear the tape recording, for, as the Report stresses, the opportunity to hear the actual words used is one of the salient arguments in favour of tape recording.
It is a pity that the Committee stage of the Bill is to follow so soon—later this week, I understand. But, with these minor reservations, I welcome the Bill. I hope that we shall hear what effect it is likely to have on the waiting lists for criminal appeals. Perhaps the Under-Secretary of State for the Home Department will also deal with what is possibly a minor point—the suggestion that three courts should sit. It would be interesting to know whether this will be adopted.
§ 11.1 p.m.
§ Mr. William Wilson (Coventry, South)
In welcoming the Bill, I can only wonder why we have had to wait so long for these quite minor reforms to be brought about. Clause 4 deals with amendments to appeals from findings of guilt by juries. During the last few months, in quite exalted places, there has been criticism of the jury system. One would think, listening to it, that the only thing wrong with the jury system is that juries 1128 sometimes find not guilty individuals who should have been convicted.
From my own experience, I would be the first to acknowledge that juries sometimes do strange things. I recollect being involved not very long ago in a case I had heard in the summary proceedings. I knew the strength of the prosecution case and also, as I represented the defence, the weakness of the defence case. I had an Irish defendant and an Irish counsel.
§ Mr. Speaker
Order. Perhaps the right hon. and learned Gentleman the Attorney-General will help me. I cannot find this within the scope of the Second Reading.
§ Mr. Speaker
Order. If the hon. Gentleman is to make the same point, I am asking for advice. I am not an expert in the law. For the moment, I am not sure whether it comes within the scope of the Bill.
§ Mr. Wilson
In this case, we agreed that the situation was such that only the leprechauns could save us from a long sentence, but with an Irish defendant and an Irish counsel, the leprechauns did their stuff. But now—
§ Mr. Speaker
I am fascinated by the hon. Gentleman's account of leprechauns, but I have looked at Clause 4, which is about the powers of the Court of Appeal, and perhaps the hon. Gentleman will address his remarks to that.
§ Mr. Wilson
The necessity of altering the law as it relates to appeals from the decisions of juries becomes apparent to those who practise in the criminal courts. It is clear to all of us that it has been necessary for a very long time to widen the basis of appeal. The Bill goes some distance towards remedying the situation, and all of us who practise in the courts must welcome it.
A further point arises out of the remarks of my hon. and learned Friend 1129 the Member for Dulwich (Mr. S. C. Silkin) on the omission of the Bill to relate to the granting of bail. One would have thought that this opportunity would have been taken to remedy that situation. If an individual is convicted by a magistrates' court, application for bail on appeal is sometimes granted. Sentences in the magistrates' court are much smaller than in an indictable case, but at the moment bail is rarely granted in an indictable case. I hope that my hon. and learned Friend can tell us, when he replies, that there is some hope of amending the law to cover the question of bail in this type of case.
§ 11.8 p.m.
§ Mr. F. P. Crowder (Ruislip-Northwood)
Everybody has welcomed the Bill, and one has read of its being debated in another place and welcomed by most distinguished people. I only wish that I could join in that welcome. The only thing that I find welcome is that, happily, there is no party dispute over it.
It can honestly be said that we are just as much responsible for the Bill as hon. Gentlemen on the other side of the House. In fairness, it does not do us the credit that we would wish because it does not begin to solve the problems before us, having regard to the situation in the criminal courts at present.
This is even more disappointing because the last time the matter came before the House was as long ago as 1907, nearly 60 years ago. We have now had the benefit of the Donovan Report, in the production which everybody took tremendous care and trouble, but, as often happens in the House, when we have the benefit of a report of that sort we never arrive at the correct and true solution.
I propose to suggest to the House the true solution here. It may be that in the Committee and Report stages of the Bill matters will have to be gone into in some detail and at great length. I understand that at the moment it is suggested that the Bill can be disposed of quickly at the end of a Friday. Of course, it cannot. It affects the liberty of the subject and is a matter of the greatest importance, and the Government 1130 will have to give time to it next week or the week after.
We are faced with the question: what is the Court of Criminal Appeal there for? Every year we have a Report, an enormous document composed of criminal statistics, but one group of statistics is never mentioned in that Report, and never can be. It is the number of cases in which a jury, with the best will in the world, either because it has been misdirected, or, through no fault of its own, has wrongly believed an identification witness, has made a mistake and convicted an innocent man.
No one here tonight knows what the percentage is or how many people there are rotting in Her Majesty's gaols who are utterly innocent. It may be only 1 per cent., it may be 1½ per cent., it may be 2 per cent. That is something which we do not know. It is the reason for having the Court of Criminal Appeal.
In my view, therefore, the court should be given the widest possible powers and not be pinned down in the way it is by a Bill of this kind emanating from the Donovan Report.
§ The Attorney-General
Is the hon. and learned Gentleman suggesting that about 1 per cent. of those convicted have been wrongly convicted and are innocent? It is a most serious and disturbing statement.
§ Mr. Crowder
I should have thought that the figure was probably very much greater, because one has only to think of cases of identification on their own, of which there are many famous examples. The right hon. and learned Gentleman knows that there is probably no better witness in a criminal case than one who is giving evidence of identification. He is speaking absolutely honestly. He has nothing to fear. He has nothing to hide. He is doing his very best. But one has known, time and again, of wrong identifications. The Beck case is but one example, but there have been many others, as the Attorney-General knows only too well.
Of course, it must happen sometimes that juries will be thoroughly misled by witnesses who are being completely honest. One has seen it happen in the criminal courts time and again. This is why the position of the Court of 1131 Criminal Appeal, in my judgment, is so extremely important, to see that no miscarriage of justice shall ever arise. One knows from one's own experience that it must happen from time to time that completely innocent people are wrongly convicted, though with everyone doing his best to see that the interests of justice are served in the highest possible sense.
§ Mr. S. C. Silkin
I have a great deal of sympathy with the point the hon. and learned Gentleman is making, but for the moment I am not sure how much wider he suggests the jurisdiction should go than is here proposed. It is proposed that the court should have power to set aside a verdict if it is in any way unsafe or unsatisfactory. Is the hon. and learned Gentleman suggesting that the court should have an unlimited power to hear new evidence, for example? What is his suggestion?
§ Mr. Crowder
I am grateful for that intervention.
If I had my way—I am never likely to have it, so the hon. and learned Gentleman need have no worry—the Bill would have but one Clause, saying, "The court shall have complete power to deal with any appeal as it thinks fit, having regard to all the circumstances of the case." Like the right hon. and learned Gentleman, I have complete confidence in Her Majesty's judges who sit in the Court of Criminal Appeal, and I do not see why they should be tied down by the various intricacies which appear in every Clause and subsection of the Bill.
May I give the House an analogy? An appeal goes from the magistrates' court to a court of quarter session. There is a rehearing. When it sits as an appeal court, a court of quarter session is not bound by the straps which we are applying by the Bill to the lords justices of appeal as though they were sitting in a nursery chair. It is a complete rehearing. The court can hear the matter de novo, dealing with it from the very outset. My complaint about the Bill is that it does not give to what is to be virtually one of the highest courts in the land the breadth of power and authority which should be given to the Lord Chief Justice of England and his court.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
Is the hon. and 1132 learned Gentleman seriously suggesting that the Court of Criminal Appeal ought to act like quarter sessions, having a rehearing de novo and calling all the witnesses? It would be quite impossible.
§ Mr. Crowder
No. I am not saying that. With great respect, I know that the hon. and learned Gentleman has difficulty in hearing. All that I was saying was that it is rather incredible that a court of quarter sessions, sitting as an appeal court, has very much greater powers, because it is de novo, than the Court of Criminal Appeal is to have under this Bill. That is why I would like to see the Bill very much wider, giving a wider breadth of decision to the new lords justices who are to sit in the court, together with the Lord Chief Justice, and the puisne judges and Queen's Bench judges.
What is to be the difference in this court when it sits? All that is to happen, from a practical point of view, is that two Queen's Bench judges, presumably by 1st October, will be calling themselves by a different name, Lords Justices of Appeal. The court will remain just as it has always been, although it will be calling itself by a different name.
If one looks at this from a practical point of view what happens is that a man is convicted by a jury and then decides to appeal. How does he set about it? Matters have now reached the stage when he can get legal aid. He has had it before. The time between his notice of appeal and the appeal being heard can be anything up to four months and possibly more.
Then there arises the question whether he should be allowed bail. What happens in practice is that once the papers have been looked at, if a judge decides that the appeal has a possibility of succeeding, and the Attorney-General will correct me if I am wrong, he will be given bail, and after some four months the matter will come before the Court of Criminal Appeal.
What has been going on there? What has happened is that Her Majesty's judges, who are overworked in any event, are given the appeal papers, probably on a Thursday or Friday evening, for appeals which are to be heard the following week. This places an intolerable burden upon them. Finally, the matter 1133 comes before the court the following week. That is not the right way to go about it, and the question is: how do we arrive at a solution? First of all, it is wrong that any judge, sitting in the Court of Criminal Appeal on Monday, should be asked to sit in court on Thursday or Friday of the preceding week.
The judge must be given time to go through the various transcriptions of the cases which he is to try and decide the following week. That is why the situation as it is at the moment means that the judges of the Court of Criminal Appeal are grossly overworked. I do not see that there will be a very great difference. We are to have two of Her Majesty's judges transformed from puisne judges into lords justices. We are to have Queen's Bench judges taken from their circuits and placed in this new court—which is to be exactly the same as the old court—together with the Lord Chief Justice. Despite everything I cannot see that there will be any great improvement.
If the Court of Criminal Appeal was really going to work effectively and sensibly, there should he three courts. There is no need to have a lord justice sitting in any of those courts. I should like to see the Queen's Bench Division doing this, as it always has done, because it has a tremendous advantage in that it is continually on circuit, sitting all over the country and trying criminal cases, seeing what the position is and then coming back to London and sitting in court.
I should like to see at least four divisions of that court, and also ample time given to the judges to study the papers; to read them during the week before the hearing. If we had the court on that much grander scale, but without any lords justices, I think that it would work extremely well; as, indeed, the existing court has for 50 or 60 years since the passing of the 1907 Act.
I apologise for keeping the House at this hour, but if the Government will put down business which directly affects the liberty of the subject at this time of the night then they must not object if there is some comment from this side of the House. What is to happen? I think that everybody now, if not satisfied with 1134 the sentence given, will appeal. Why? Because they have nothing to lose. We know what has happened over the years. When Lord Goddard was Lord Chief Justice some people got some rather nasty shocks from time to time, and others became careful about appealing.
In recent years, however, the practice has grown up for the Court of Criminal Appeal. where it has been minded to increase a sentence, to be kind enough to ask those representing the appellant if they wish to go on. Well, a nod is as good as a wink, but at times the defendant has insisted on going on, and the worst has happened. Now, the Lord Chief Justice, prior to the appearance of this Bill, has announced that the Court of Criminal Appeal would not in future be increasing sentences. Personally, I support that. I think that it is right that if a person is dissatisfied with his sentence he ought not really to run the risk of facing an increased sentence.
Equally, if the appeal is clearly shown to be frivolous and has no merit, and if it can manifestly be shown that the court of first instance—or second—was wrong in the sentence that it passed, then I should have thought it just as well that the risk should remain.
§ Mr. Elystan Morgan (Cardigan)
I am following the hon. and learned Gentleman's argument closely, but is there not a complete illogicality in it? We agree that where an appeal is frivolous and fanciful the appellant should be punished for his impudence, but the sentence should run from the date of the appeal; and, in so far as length of sentence is concerned, is it not proper to say that the sole criteria with regard to having a second look is the very reasonableness of the sentence in the first instance? If reasonable in the first instance, how can that reasonableness be changed by the impudence of the appellant at a later date?
§ Mr. Crowder
Yes, I agree, but time is important in these matters. One of the problems which could arise is that if we are going to have appeals to the Court of Criminal Appeal which not only have no merit but which give rise to instances of where the original sentence was quite wrong, then either the Court of Criminal Appeal will be absolutely 1135 overwhelmed or we shall find ourselves in very difficult circumstances indeed.
I do not know whether the hon. Member recalls that six or seven years ago there was the case of a man caught stealing either golf balls or money from the clothing of people in a golf club while the people concerned were out playing. He was fined £500. He appealed to the Court of Criminal Appeal. Lord Goddard, who was then the Lord Chief Justice, presided over the court. He said that it was quite clearly not a case for a fine, it was a case for imprisonment, and the man went to prison for about nine months.
My worry about the Bill is that if we take away this power from the court, which I am very loath to do, and the court is overwhelmed with appeals, it will be very difficult to restore this power. The practical solution, therefore, is surely to leave this power in the Bill. In practice, it will not be exercised except in the most extreme cases.
§ Mr. Crowder
I am not saying that at all. I do not know what has happened to the hon. and learned Gentleman's hearing. I do not expect that he has heard a word of what I have said. I have said that we should keep the safeguard so that if, from a Parliamentary point of view, it became necessary, because of the court being overwhelmed with stupid and frivolous appeals, to use this power, it would be there.
I am very much in sympathy with the hon. and learned Gentleman. I would be horrified if I ever appeared before the C.C.A., having advised a person to appeal against sentence, and that sentence was varied or increased, but I am worried that there will be one glorious flood of appeals because there will be no risk, no danger, and no award of costs. It will all be done on legal aid. This is something that we have to worry about, and, therefore, I would not see any harm in keeping the shadow there, although, in practice, one would think that the possibility of its being used was almost negligible.
I have raised a number of points, and I have detained the House for a long 1136 time. This is a Bill which I hesitate not to welcome, because it is a change, and we believe in change in this House, but I cannot see how, on its present basis, it will assist matters any further in any way whatsoever, because it is really calling a dog, which is the C.C.A., by another name, lords justices and the like. I look forward to seeing the Amendments which my right hon. and learned Friend will put down in Committee, for which I hope the Government will give plenty of time, because there is plenty to be said about this Measure.
§ 11.27 p.m.
§ Mr. Eric Ogden (Liverpool, West Derby)
Those who have spoken so far in this debate are all members of the legal profession, except you, Mr. Speaker, as you pointed out a few moments ago, and now myself.
I suggest that as Members of Parliament we are one-man courts of appeal for our constituents. Every Member must have personal knowledge of at least three, and possibly more, of his constituents whom, after all the consideration that he can give to their cases, he believes to have been wrongly convicted.
Since I came to this place two years ago, I have had three cases of varying degrees of seriousness. One received seven years at Dartmoor, one received two years at Walton, and another was fined for shoplifting. In each case all the procedures of law had been followed. There have been some irregularities, everything that the law has allowed has been done, and it remains my view that at least three of my constituents have been wrongly convicted.
I should like to take up one point made by the hon. and learned Member for Ruislip-Northwood (Mr. Crowder) who talked about identification. During the Second Reading of the Bill in another place the Lord Chancellor deliberately brought up this point. He said:There may be a case in which identity is in question, and if any innocent people are convicted today (and it is probably impossible ever to have any system of justice which ensures that that can never happen), I should think that in nine cases out of ten … it is on question of identity …There has been general feeling in the legal profession"—and certainly outside it—that if you go to the Court of Criminal Appeal for an obviously guilty client who has 1137 some technical point, if the technical point is good, then the guilty man gets off; but that if your only complaint is that your client is entirely innocent and had nothing at all to do with the crime, then it is much more difficult."—[OFFICIAL REPORT, House of Lords, 12th May, 1966, c. 812.]Some of my hon. Friends who have a genius for getting off a guilty man say afterwards that they know that he is guilty, and that he got off on a technicality, but that to secure the release of an innocent person is much more difficult.
On Clause 4—always a key or controversial Clause—we shall have to wait for the courts to tell us what is meant by "unsafe or unsatisfactory," but if some guidance could be given to the House by my hon. Friend it would be welcome. I have had considerable correspondence about Clause 5, as probably every other hon. Member has. I would disagree with the hon. and learned Member for Ruislip—Northwood (Mr. Crowder) and say that we should take the risk that there might be a flood of appeals and that they may be frivolous.
There may be a residual risk that the time taken between sentence and the appeal being heard—which may be as long as four months—will not be taken into consideration as part of the sentence, if the court so decided. We have reversed the procedure and there is a deterrent there. The House may be prepared to take the risk that an innocent person should not be prevented from making an appeal simply because he is afraid of the Clause coming into effect. The deterrent effect will still be in the Bill and in the law.
I congratulate my right hon. and learned Friend on Clause 6. He might draw it to the attention of the Select Committee on Procedure, which has been considering whether we should record some of our own proceedings—not in the House, but in Committee—by the use of tape recorders. I have been told unofficially that that has been ruled out on grounds of security and that we are not able to do it. This is a very useful innovation, which will have to be watched carefully.
Clause 9 refers to parts of the Bill coming into force on an appointed day or days. May we have some guidance about the time scale which will operate in this respect? The right hon. and 1138 learned Member for Warwick and Leamington (Sir J. Hobson) said that the Bill was out of his party's box, but he should not be too disappointed about that. He said it with a smile. We accept that the Opposition cannot be wrong all the time. If this is not a dramatic Bill, as he said on two or three occasions, I have had enough drama in this place in two years to last me for a long time. It may be that when we are least dramatic, we are doing our most useful work.
§ 11.33 p.m.
§ The Under Secretary of State for the Home Department (Mr. Dick Taverne)
I hope that, in dealing briefly with the points which have been raised, I will not give offence if I do not answer them all and some are left to Committee.
The Bill has been generally welcomed, except by the hon. and learned Member for Ruislip-Northwood (Mr. Crowder). It is not exactly a great partisan Measure, although the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) strove and strained to inject a partisan note. There have been measures of law reform before. The machinery now exists for systematic review. On particular Measures, I think that, by the end of this Session, the right hon. and learned Gentleman will be surprised by the number of measures then appearing on the Statute Book.
The right hon. and learned Gentleman asked why the Bill is not in codified form. One of the difficulties is that when it was discussed, the suggestion was considered of having what is called a "Keeling Schedule", which means a schedule setting out at the end the statutes as amended by the Bill. But when this exercise was applied it was found that it would make for an extremely long Schedule, and Viscount Colville of Culross, who raised the matter in another place, agreed that it would be quite impracticable. It seems better to deal with the reforms point by point of statutes which themselves have to some extent been reformed and then later the whole lot can be consolidated and Parliamentary counsel can look at it as a whole.
The hon. and learned Member for Southport (Mr. Percival), however, also raised the question of Clause 4. He 1139 suggested that the effect of the Amendments, if carried, would mean that the Clause would be rather inelegantly worded. But many of the points which he made also applied to the old Section 4(1) of the Criminal Appeal Act. The proviso in the old Section 4(1) could not and did not apply to every one of the reasons for allowing an appeal. There could not be a case in which there was an unreasonable verdict of the jury and an appeal allowable on those grounds and yet one to which one could apply the proviso and say that no substantial miscarriage of justice had occurred. While I agree that the result is not elegant, we are in no worse position in respect of elegance of wording than we were before.
§ Mr. Percival
I suggest that there is a great deal more than elegance involved. There may have been part of the existing provisions to which it was difficult to apply the proviso, but I suggest that as amended it does not make sense in relation to any of the provisions. Perhaps the hon. and learned Gentleman will tell me what he thinks is meant by the proviso as it now stands. What is a miscarriage of justice in this context?
§ Mr. Taverne
A miscarriage of justice is by the nature of it something which has a wide meaning. It means that justice has gone wrong. There may be cases under the Clause as amended where, for example, there has been material irregularity in the sense that there was irregularity in the course of the direction which was relevant, but, nevertheless, at the end of the day the Criminal Appeal Division, looking at the whole of the evidence, will say that no reasonable jury properly directed could have failed to convict. This, in effect, is what the proviso will mean. It was the conclusion reached by the Donovan Committee that the elimination of the word "substantial", which is the only alteration to the proviso, removes something which was of no practical effect whatever in the first place.
I was asked how many lords justices would now be created. There is no provision for this in the Bill. There is power under the Judicature Act, 1925, to create two more lords justices if the need is felt, and it may well be that it will be felt in these circumstances and 1140 that two more will be created. It is certainly intended that there will be a good deal of continuity.
One of the criticisms directed at the Court of Criminal Appeal in the past was that there was not sufficient continuity and that many inconsistent decisions were reached. It is, therefore, intended that the lords justices sitting in the Criminal Appeal Division will supply continuity and will, therefore, be applying it to the criminal jurisdiction of the Court of Appeal fairly consistently. But exactly how this will be worked must be left to the courts, as an administrative measure.
This answers the question put by the hon. Member for Colchester (Mr. Buck), who asked why we had not enacted in statutory form paragraph 85 of the Donovan Report. I think that this would be very undesirable. It would be very rigid if we said that there must be so many judges of a particular standing who were on a particular appeal. Questions of illness might arise. It might not always be possible to have the Lord Chief Justice and a lord justice and a puisne judge hearing an appeal which is an appeal against conviction. A certain amount of flexibility must be allowed. The whole matter is amply covered by Clause 1 and it will be a matter for administrative arrangements to see how the Donovan recommendations will be dealt with in practice.
§ Mr. Buck
The hon. and learned Gentleman is using a most unsatisfactory argument. At present, if a whole lot of puisne judges are ill with influenza, county court judges are not able to exercise their jurisdiction. As we are seeking to raise the status of the Court of Criminal Appeal, we should lay down its format and we should not allow simply anybody to sit ad lib as puisne judges in the court.
§ Mr. Taverne
This matter can safely be left to the Lord Chief Justice, or, if he is not available, to the Master of the Rolls. If we were to provide that so many lords justices would sit in each court, we would make the matter far more rigid than was justified.
The right hon. and learned Gentleman also asked about the increase in staff. The proposed increase in staff, which is dealt with in Clause 3, is effected in 1141 the following way. Authority is given for the appointment of an additional deputy assistant registrar and an additional legal assistant. If further appointments prove necessary because of the volume of the work, they can be made under Clause 3 with the approval of the Treasury.
The right hon. and learned Gentleman then turned to the power to increase sentences. I understand that an Amendment is to be moved, and this is a matter which can be dealt with in Committee. All I would say at this point is that it seemed to me that the Lord Chief Justice in another place advanced extremely cogent reasons why the power to increase sentences should not be kept. It is entirely a matter of chance whether sentences are considered for an increase. Even if, in cases of appeals against conviction, the power was granted to increase sentences, this would deal with only about 10 per rent. of all convictions.
In other cases, it is often a question of the obstinacy of the prisoner who refuses his counsel's advice or it may be because of the inexperience of counsel who advises the prisoner to appeal when the sentence may be increased. Or it may be a case where guile has had to be used by the Court of Criminal Appeal to persuade a case to come up for review of sentence when the intention was not to exercise leniency, but to increase the sentence.
The hon. Member for Colchester and my hon. Friend the Member for Manchester, Blackley (Mr. Rose) asked about the appalling delays which now occur before appeals can be heard will be affected by the Bill. Obviously, I cannot say how the Bill will affect the position in absolute quantity. I cannot say how long the period of delay will be in future. Clearly, however, if two courts will be sitting continuously, and if there is provision also for a third court to sit from time to time, the position will be much better than it is now and, in that sense, the administration of justice should be improved and the delay which now occurs should be materially lessened.
My hon. Friend the Member for Blackley also asked about bail, as did my hon. Friend the Member for Coventry, South (Mr. William Wilson). This is a 1142 matter which was considered by the Donovan Committee, who felt that there were greater difficulties in the way of allowing bail on appeal where a defendant might have a greater reason to abscond. Nevertheless, I do not think that this is a matter which we can deal with in the Bill. It may be that it will be dealt with by administrative arrangements.
We in the Home Office are considering the whole question of bail. While I cannot promise that there will be legislation to deal with the kind of case to which reference was made, nevertheless the question of bail should best be considered on its own and cannot come into this Bill when, so far, it has always been treated as a matter of administrative arrangement.
§ Mr. Buck
Can the hon. and learned Gentleman say whether there are provisions concerning bail in the Criminal Justice Bill which he is in process of preparing?
§ Mr. Taverne
I cannot give any undertaking of that kind. All that I can tell the hon. Member is that the question of bail is being looked at.
§ Mr. Crowder
I apologise for interrupting the hon. and learned Gentleman, but I do so for his own sake. He said something about the guile of the Court of Criminal Appeal, suggesting that it had more or less entrapped a man. I do not know whether it was his intention, but it is a very serious thing for the Government Front Bench to suggest that the Court of Criminal Appeal has been guilty of that conduct. I am quite sure that it was not intended, but as it will be on record in the OFFICIAL REPORT I thought it right to interrupt the Under-Secretary to point this out.
§ Mr. Taverne
I do not know that I can find the passage. It may be that my memory is at fault, but I think that that was the phrase used by the Donovan Committee—
§ Mr. Crowder
I am anxious to know what the hon. and learned Gentleman said, because he is not speaking—
§ Mr. Speaker
Order. I cannot have two hon. Gentlemen standing at once, no matter how learned they are.
§ Mr. Crowder
I agree, though, with great respect, for one awful moment I thought I saw three.
I think that the hon. and learned Gentleman should be very careful. I see someone has gone from the Official Box to try to sort the matter out, but we cannot have Government spokesmen accusing the Court of Criminal Appeal of guile, and of leading people into a position where they might have got a bigger sentence. Does not the Under-Secretary think that he had better withdraw that accusation very quickly? If not, he will be in very real trouble tomorrow morning.
§ Mr. Taverne
I do not, of course, wish to attribute malpractices to the Court of Criminal Appeal, but I would draw attention to a paragraph in the Report of the Donovan Committee which shows that my memory was not entirely at fault. Obviously, I should not have used the word "guile", but the Donovan Committee used a word not very much less offensive. Paragraph 197 states that in certain casesThe Court was privately of opinion, however that the sentence ought to be increased, but was careful to let no hint of this view reach the appellant. In the end the increase of his punishment must have come to the prisoner as a very rude shock, and the granting of leave to appeal as nothing but the setting of a trap.Therefore, while I do not wish, naturally, to offend the Court of Criminal Appeal, the Donovan Committee itself more or less suggested that this was not a straightforward way of granting leave to appeal, in the sense that it was not the way in which it was seen by the parties more directly concerned.
Again, if one looks at paragraph 201, one sees that the Committee refers toOne way of avoiding to some extent the deceptive procedure which at present must be adopted …I therefore do not feel that the hon. and learned Gentleman is making a point of very great substance—
§ Mr. Taverne
No, we have dealt with this point, and I do not think that it needs labouring very much further. The reference to deceptive procedure is in paragraph 201.
1144 My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) raised some points on Clause 4(2). The first was the use of the word "severity." This is really a Committee point, because there are certain cases where one cannot simply put it in terms of increasing the sentence Where the prisoner is convicted on several counts, one of which is quashed, the Court of Criminal Appeal may wish to impose a sentence which, in the end, will have the same total effect as before, although the actual sentence on one count will be increased. Again, in some cases a substituted sentence may be sought to be imposed—one of borstal training, as my hon. and learned Friend mentioned, or a hospital order with a restriction order.
In these cases, the use of the word "severity" gives a general guide which can certainly indicate to the court the intention of the Legislature without tying its hands in an undesirable way. If my hon. and learned Friend wishes to have the precedent for the use of the word, he will find it in Section 3(1) of the Criminal Appeal Act, 1964.
The hon. and learned Gentleman also asked why an appellant should still be penalised for appealing. When it is said that there is nothing of great substance in this Bill I think that, in fact, Clause 5 provides a reform which is of very great substance. Numerous cases have been sent by hon. Members to the Home Office in which the prisoner has said, "Why has my sentence been increased? "or" Why have I lost 63 days or 42 days of my sentence just because I exercised my legal rights?" It is a very unsatisfactory position in which, as a general rule, with very few exceptions, whenever a man exercises his right of appeal unsuccessfully he finds his sentence increased in practice.
Can there be no exceptions to this? I think that there are difficulties about not having it in the way in which it is now proposed. The fact remains that some sort of deterrent must undoubtedly be provided against being utterly swamped by a very large number of appeals. There are a number of cases where people appeal simply because they wish to have the extra visits. This has been found by certain studies which have been carried out. There are a large number of cases where people do not appeal now because of the possibility of this happening. If 1145 in all cases there was nothing whatever to be lost by an appeal, the heavy burden on the Court of Criminal Appeal would become worse and the sufferers would be those who have meritorious grounds. There is. therefore, extremely good reason for providing some sort of deterrent, even though one recognises that it is rather unsatisfactory.
I was also asked about the 63 days and the fact that there is no provision about that in this Bill. In fact, there is no statutory provision about this limit whatsoever. It is a limit of practice. If the hon. and learned Gentleman turns to the Criminal Justice Act, 1948. Section 38, he will find that there is no provision about 63 days or 42 days there, either.
I do not know that I have dealt with all the points, but I want to finish with another of the important substantial points which I think make this a reform of considerable importance. I have considerable sympathy with the point made by the hon. and learned Member for Ruislip-Northwood. I would not like to say that there are 1 per cent. of people wrongly convicted. It seems to me an extraordinarily high figure, but undoubtedly at the Home Office one sees a number of cases which make one feel very uncomfortable, where one cannot really say definitely "This man was guilty", where, at any rate, from looking at the transcript of the trial, one is left in a very exceptional case with a sense of acute discomfort.
My hon. Friend the Member for Coventry, South raised this point, too. Often in these cases there is nothing that the Home Office can do because it would be wrong if the Government were to substitute themselves for the jury or for the Court of Criminal Appeal and were to retry the case. This cannot be done.
It seems to me that one must have regard to certain points. Simply to say, "Let us have an entire review of the case de novo" would be very difficult because it would mean that the whole jury system would be set aside to a large extent. The difficulties in what my hon. and learned Friend suggested would be very considerable. Nevertheless, the 1146 power which it is now proposed to give to the Criminal Appeal Division is an extended power and is a very valuable one.
It is true that the Lord Chief Justice said in another place that from time to time the Court of Criminal Appeal has taken the attitude that in all the circumstances of the case it was unsafe to convict. But it is also true that if one looks at other pronouncements that have been made in the past, Section 4(1) of the old Criminal Appeal Act has been much more restrictively construed, and it has often been held that since there was some evidence to go before the jury one could not say that it was an unreasonable verdict and one could not, therefore, interfere with the verdict of the jury. Certainly, the Bill will make it quite clear as to which line of interpretation is to be followed in future.
I hope, in fact, that the courts will not give this new Clause a very restrictive interpretation, but will use it to try to deal with some of these cases of wrongful identification which make so many people feel uncomfortable, that they will feel themselves more free than they have been in the past to interfere with a verdict of the jury about which there must be a considerable measure of doubt, and that it will make it easier for the Home Office to refer some of these cases in which there is this awful sense of doubt to the Court of Criminal Appeal.
It seems to me that for these reasons the new provisions about time spent waiting for an appeal to be heard not counting as part of the time served, and the new provisions about the powers of the Court of Criminal Appeal to review decisions of the jury, make this a very important piece of criminal law reform.
I do not share the view of the right hon. and learned Gentleman that there is nothing very important or radical in it, and I hope that the House will give the Bill a Second Reading.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the whole House.—[Mr. Bishop.]
§ Committee Tomorrow.