§ Mr. S. C. Silkin
I beg to move Amendment No. 3, in page 5, line 8, to leave out "it is" and to insert:a conviction on any part of the indictment mould be".On Second Reading there was general agreement, certainly shared by my hon. and learned Friend the Joint Under-Secretary of State, that it was desirable to widen rather than restrict, as far as we could legitimately, the powers of the criminal division of the Court of Appeal to allow appeals where the justice of the case so demanded. That is the reason 1965 for the Amendments to the 1907 Act which are proposed in this legislation.
The purpose of this Amendment is to carry the process possibly even further in the sense that, as the provisions of the Bill stand, we shall have the situation that the Court of Appeal in deciding whether to allow an appeal or not will be required to do so if it thinks that the verdict of the jury should be set aside on the ground that… under all the circumstances of the case it s unsafe or unsatisfactory …That is to say, the court will be looking back to the verdict of the jury in considering, whether it is unsafe or unsatisfactory, rather than looking at the situation as it exists at the time the appeal is heard.
If there is any doubt as to the effect of that provision, the view might be taken that the court would be bound to place itself in the shoes of the jury at the time the case was heard and say, "Could the jury possibly have felt that a conviction was unsafe or unsatisfactory at that time?" rather than look at the matter afresh at the time the appeal is heard and say to itself, "Do we think that it is unsafe or unsatisfactory?" That would be an undue restriction of their powers. It is to make it clear that it must look at the case as at the time of appeal and not through the eyes of the jury that I move this Amendment.
§ Mr. Grieve
I had not intended to intervene on the Amendment but was on the point of asking the hon. and learned Member for Dulwich (Mr. S. C. Silkin) a question when he sat down. It is to ask him the question now that I rise to intervene.
I am not very clear what the hon. and learned Gentleman wishes to arrive at in suggesting the wordsa conviction on any part of the indictment …Surely what the appeal division will be concerned with is not a conviction on any part of the indictment but a conviction on that part of the indictment that is the subject of appeal.
An appeal may be directed to a conviction or to a given part of the indictment, but I am not clear whether the hon. arid learned Gentleman seeks to give the division power to decide the substance and subject matter of the 1966 appeal and look at all the surrounding circumstances. That would be going much too wide. But if that is not the objective of the hon. and learned Gentleman, I do not follow him when the Amendment proposes that the court should look at any part of the indictment
§ 2.30 p.m.
§ Mr. Peter Archer (Rowley Regis and Tipton)
I rise to support the Amendment, not because I flatter myself that I can state the case better than my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), but because there is one aspect of the matter which he has put with his usual fairness and moderation and which I should like to repeat with less moderation and restraint. Before doing so, I wonder whether I can attempt, for myself at least, to answer the point put by the hon. and learned Member for Solihull (Mr. Grieve). It is certainly not the intention of this draftsmanship to place the whole matter at large, as it were. The words "any part of the indictment" might well have been left out. What is intended is to attempt to provide for the court some guidance on an issue which arises both on the body of this provision and on the proviso, that is.
Whether the court is required to direct its attention to the merits of the appeal, or whether it is required, as it were, to do the thing in two stages; whether it is just that the appeal should succeed, or whether the jury, properly directed, would have thought that it was just. It is a question which the Donovan Committee considered at some length in paragraphs 151 to 161 of its Report, concluding, with very little hesitation, that the correct answer was that the court should be invited to direct its attention to the justice of the matter.
Unhappily, over a period of about 300 or 400 years the mystique with which the jury has become shrouded in this country has resulted in a court directing its attention not to the justice of the appeal, but to the effect on the mind of a jury of a hypothetical proper direction, and so the type of questions which have been asked has been, "What would have been the effect on a jury of particular types of direction?". The result over the years has tended to be undue emphasis on legal technicalities to the exclusion of the justice of the appeal.
1967 The result has been, as the Lord Chancellor remarked in another place, that if it is possible to satisfy the court that there has been a technical misdirection, then, irrespective of the merits of the matter, the appellant might well go free, but if his only complaint is that he is wholly and entirely innocent, that might have little effect on the mind of the court. It is because I believe that procedure should assist the process of justice and not impede it that I rise to recommend the Amendment to the Committee.
§ Mr. A. J. Irvine
I am very doubtful whether the language of the Amendment has the effect which it is intended to possess as it has been explained by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin). The emphasis upon "any part of the indictment" gives rise to the kind of anxiety which the hon. and learned Member for Solihull (Mr. Grieve) felt.
I think that the Amendment is capable of an interpretation which would be regarded as very unsatisfactory by everybody, including my hon. Friends who have spoken on its behalf. It might well be interpreted as meaning—this arises from the expression "any part of the indictment"—that if there were some material irregularity in the trial relating, for example, to a charge of shop breaking in an indictment in which there was also a count for assault, any appeal allowed by the Criminal Division of the Court of Appeal would have to relate to both counts.
In other words, in a case where there was a miscarriage related wholly to the shopbreaking, or an irregularity wholly in the evidence on the shopbreaking, and there was also a separate count for assault, the appeal on shopbreaking could not be allowed without there also being allowed an appeal on the assault. I do not think that anybody wants that, for it would be obvious nonsense. I fear that from mischance the language of the Amendment would be more likely to have that effect than the effect for which my hon. Friends are contending.
§ Mr. Taverne
I am in some difficulty, because I do not understand the Amendment at all. I do not understand how it is to make the court look at the circumstances at the time of the appeal, as opposed to the circumstances at the time 1968 when the jury was considering its verdict What it does is to direct attention to any part of the indictment, apparently as opposed to the indictment as a whole. The remarks of the Donovan Committee in paragraphs 151 to 161 of its Report were directed at the proviso and how in the past the court had interpreted the proviso. Those remarks do not seem to have any relevance to the way in which the court will interpret the earlier part of Clause 4(1,a).
§ Mr. Archer
The purpose of my comments on those paragraphs was to show that the same issue arose in this connection as arose on the proviso. The purpose of the Amendment is to invite the court to look at the "conviction", which is the important word in the Amendment, rather than the "verdict", which is what exists at the moment in the Bill.
I have obviously misread it or misinterpreted it, but I still do not understand how the effect striven for is achieved, because whether one looks at the conviction, or part of the indictment for which a person has been convicted, or at the verdict, does not seem to alter the matter. The question which the Criminal Anneal Division will have to consider is "Was the verdict of the jury unsafe; was the verdict of the jury unsatisfactory?". That seems essentially to meet the points made by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin).
To some extent, I must agree with the remarks of my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) that it might well have a very strange effect. At the moment, if there are separate counts and an appeal is allowed as to part, it can be dismissed as to the other part. In that sense, the verdict of the jury is already separated by the Court of Criminal Appeal, but the effect of the language of the Amendment might be that if it is only on part of the indictment, on one of the counts, that the appeal is allowed, the whole of the conviction, the whole of the verdict, must be set aside. I cannot accept the Amendment, because I do not understand it. It does not seem to achieve what it sets out to achieve and its effect might be unfortunate.
§ Mr. S. C. Silkin
Like the hon. Member for Colchester (Mr. Buck), I would not 1969 claim any particular ability in draftsmanship and if the drafting of the Amendment is liable to criticism, I would be only too happy for those far more experienced than I am to look at it again and to put it in a form which carries out our intention.
What we are concerned with is that there should be no doubt that the Criminal Division, when deciding on an appeal, should not feel that it is in any way restricted by the feeling that it has to look at the matter simply through the eyes of the jury which heard the case, but should have that much wider elasticity which would enable it to look at all the facts and the circumstances as they are and as they existed at the date of the appeal.
I have heard what has been said about the drafting, but I hope that my hon. and learned Friend will consider the principle behind the Amendment. With that hope in mind, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Carlisle
I beg to move Amendment No. 4, in page 5, line 14, to leave out from "proviso" to end of line 15 and insert:for the words 'consider that no substantial miscarriage of justice has actually occurred' there shall be substituted the words 'are satisfied that a reasonable jury properly directed at a trial conducted without irregularity would not upon all the evidence given have done other than convict'".It might be said on first sight that this is merely a drafting Amendment, but in my submission it is rather more than that. It is an attempt to clarify into statutory form, what, in practice, has been the effect of the proviso under the Criminal Appeal Act, 1907. I should go back briefly into the wording used in that Act and say how it comes about that this Amendment is brought before the Committee. Section 4 of the Criminal Appeal Act 1907, sets out the grounds upon which an appeal could be granted including:that … there was a miscarriage of justice …It noes on to say: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 lethally occurred.1970 As the Committee will know, the Donovan Committee recommended the removal of the word "substantial" from the proviso. As it would then have stood one was faced with the position that, if no other consequential Amendment had been made, the Section would have read that one of the grounds upon which an appeal could be allowed was that there was a miscarriage of justice, provided that the court should not decide in favour of the appellant if they considered that no miscarriage of justice had actually occurred. As the learned Attorney-General pointed out on Second Reading, that appeared to be a complete nonsense and led to the Government making an additional Amendment to that proposed by the Donovan Committee, by changing the words "miscarriage of justice" in the existing ground for granting an appeal for the words…material irregularity in the course of the trial".It should be made clear that whereas that Amendment may have improved the elegance of the Clause, in practice its effect, as was apparently intended, was nil. In moving the Second Reading of the Bill, the learned Attorney-General said of the Amendment that the Government were taking out words and replacing them by another set of words which were considered to have the same effect. The point made by the noble Lord, Lord Pearson, in the House of Lords on Second Reading was that it was difficult to see that there could be any material irregularity which was not to some extent a miscarriage of justice. As I say, although the wording has been approved so that at fist sight it does not appear apparent nonsense, if one goes further into the words one finds that it is still an apparent nonsense and is producing two completely contradictory statements.
In our Amendment we have attempted to remove the words of the existing proviso entirely and to set in their place what, in practice the court does, namely, not to allow an appeal, although a point of material irregularity may have occurred, or although there may have been a misdirection on law, if the court is satisfied that a reasonable jury, properly directed, would still have convicted. The Amendment to the 1907 Act as proposed by the Government, as the noble Lord, Lord Pearson, again pointed out in his speech, lessened the effects of the proviso 1971 by the removal of the word "substantial". As the noble Lord said, once any miscarriage of justice, however small it might be, had occurred, and it could be established that it was a miscarriage of justice, then the court would be prevented in any way from making use of the proviso.
One knows that what has happened over the years since the Court of Appeal was set up is that the court has, to a certain extent, disregarded the strict interpretation of the words in the 1907 Act and has, in the words of the Lord Chief Justice in another place, done what it thought to be right in all the circumstances. The purpose of this Amendment is to put into words, into the Statute, what is the effect in practice of the proviso as it now stands. The words may appear familiar to all Members who were present on Second Reading. On 12th July the learned Attorney-General, explaining what the proviso means, said that the court would:…dismiss the appeal if…. satisfied that a reasonable jury, properly directed, could not have done other than convict.2.45 p.m.
When one comes to the words used by the hon. Member the Under-Secretary of State for the Home Department in reply to the hon. and learned Member for Southport (Mr. Percival) who asked him what he felt was the effect of the new wording of the proviso, it will be seen that he said:There may be cases under the Clause as amended where, for example, there has been material 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.It is those words, used by the Parliamentary Secretary and the Attorney-General which have been drafted into this Amendment. The Parliamentary Secretary continued:This, in effect, is what the proviso means." —[OFFICIAL REPORT, 1st July, 1966; Vol. 731, c. 1112. 1139.]It is the opinion of this side of the Committee that since that, in effect, is what the proviso should mean, that in practice is what the proviso should say. That is why we move the Amendment.
§ Mr. A. J. Irvine
The hon. Gentleman the Member for Runcorn (Mr. 1972 Carlisle) who has moved this Amendment has argued with great skill and, if I may use the word, plausibility, about a distinction without a difference. I have difficulty in finding any real merit in the proposed change. As the Bill is drafted, the question which a member of the Court of Appeal is required to ask himself relative to the proviso is, "Has no miscarriage of justice occurred overall?"
The effect of this Amendment would be that he would have to ask the question, "Would a reasonable jury, properly directed, have convicted?" This is difficult and he will always answer these two questions in the same way. I cannot conceive of a situation in which any judge could think of answering one of them in the negative and the other in the affirmative. This is why I feel that the proposed language of the Amendment adds nothing to the Bill.
What it does is to make it an obligation upon the member of the court to place himself, notionally, in the condition of a reasonable and correctly directed juror. But that is a metaphysical exercise, I should have thought, because the moment that he seeks to determine whether a miscarriage of justice has occurred, he is placing himself in the position of his concept of a reasonable juror. By the Amendment, we are calling upon him to carry out a metaphysical exercise closely akin to what would be his duty, anyhow, and introducing an unnecessary complication into the Measure.
§ Mr. Grieve
I suppose that the debate is as devoid of political content as any debate in this Chamber could be. On both sides, we are seeking to arrive at the right use of language to achieve ends which we all have in common in the administration of justice.
In that position, I am reminded of the French saying,Le mieux est l'ennemi du bien."Very often, in seeking to improve a system which is already working well, one may be driven to analysing language and breaking down current expressions to a degree that one befogs oneself, and the last stage is probably worst than the first. I am not sure that something of that kind has not arisen in this Clause.
I hope that I am not out of order in going beyond the words which we are 1973 discussing to consider the wording of the earlier part of the Clause where it was provided that the words "unsafe or unsatisfactory" should be substituted for the existing words in the 1907 Act. That exemplifies the point which I desire to make on this Amendment. In the debate in another place, the noble Lord, the Lord Chief Justice, said that that was precisely the test which the Court of Criminal Appeal had been applying for years, whether or not it was justified by the precise language of the Act of 1907.
Similarly, the debate on this Amendment has been triggered off by the question whether the word "substantial" should be taken out of the old expression in the proviso to Section 4 of the Act of 1907 governing the word "miscarriage". Over 59 years, the expression "substantial miscarriage" has come to have a meaning which every man in the street can perfectly well understand, let alone every lawyer. It is a miscarriage of importance; such a miscarriage as would justify the court in interfering, if there was one, and in saying that it would not interfere if there was not one.
It is because we have sought to break down the language and follow the recommendations of the Committee, that the expression "substantial miscarriage" has come to he analysed in this way. People ask themselves if the word "substantial" adds anything to "miscarriage". If there is a miscarriage of justice, ipso facto it must be substantial. Anyone would have said, as the noble Lord, Lord Pearson, said and as my hon. Friend the Member for Runcorn (Mr. Carlisle) said, that the Court of Criminal Appeal has applied the proviso when there has been any miscarriage, because "miscarriage" means a substantial miscarriage.
The Bill seeks to omit the word "substantial", and so we have to look and see what sort of miscarriage is involved. In putting down the Amendment, my hon. Friends have sought to define what amounts to a miscarriage and what, through all these years, have amounted to a substantial miscarriage.
I do not go along with the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) in saying that it involves the Criminal Appeal Division of the court putting itself in a metaphysical position. All who sit in judgment— 1974 judges in civil cases, recorders hearing appeals at quarter sessions—have to put themselves in the position of a jury. It is something which judges do every day. They direct themselves as to the law as judges and they approach the matter in accordance with the direction that they would give to a jury were they assisted by one.
I support my hon. Friend the Member for Runcorn in moving the Amendment as an attempt to define the sort of miscarriage that we all have in mind. Like my hon. Friend, I am not wholly satisfied with the language of the Amendment. I only go so far as to submit it to the hon. and learned Gentleman the Under-Secretary as one possible definition of "miscarriage" which no doubt will require tidying up. For example, I am not at all sure that the word "could" should not be substituted for "would" in the penultimate line.
It is a gallant attempt to define something which it is extremely difficult to define. To that end, it has my support, and I submit it with approval to the Committee.
Despite the persuasive way in which the Amendment has been moved and supported, I must ask the Committee to resist. I do so for two reasons. The first is because it is not needed, and the second is because it contains a serious defect which goes beyond just a drafting defect.
To begin with, may I say something about subsection (1) of Clause 4? The Donovan Committee looked very carefully at the proviso. From the way in which it has drafted its own paragraphs 161 to 166, it does not appear that any of the witnesses who gave evidence before it suggested that the language of the proviso should be revised. The Committee itself suggested cutting out the word "substantial". It said, in effect, that it is extremely well established what the proviso means.
Formerly, under the old Section 4(1) of the 1907 Act there were three grounds for allowing an appeal, with a proviso at the end.
The proviso could not operate on the first ground, because, if the verdict of a jury was unreasonable and could not be supported having regard to the evidence, 1975 one could not apply the proviso. There was some difficulty in applying the proviso to the third ground, dealing with a miscarriage of justice. Nevertheless, to some extent the courts did so, because the second ground, dealing with a mistake on the ground of a wrong decision of any question of law, would not cover the case of any serious misdirection of fact, and the court could use the third ground in order to make that a permissible ground of appeal. It nevertheless was very unsatisfactory. It will now be much more satisfactory.
The hon. Member for Runcorn (Mr. Carlisle) mentioned Lord Pearson's doubts, but this point was carefully considered by the Donovan Committee. If I may pray in aid another eminent legal authority, Lord Tucker, who has enormous criminal experience, he said in the House of Lords that he very much welcomed the proposed reform of Clause 4 which, he thought, would very much strengthen the position of the Court of Appeal.
The way in which it will work is that as to the first ground, the proviso would clearly not operate if a verdict was unsafe or unsatisfactory, and clearly one could not then say that there had been a miscarriage of justice. Certainly, the proviso would operate on the second ground of appeal. If there was a wrong decision on a question of law, the Court of Appeal could still say at the end of the day that although there was a wrong decision on a point of law, nevertheless there had been no miscarriage of justice and the appeal would be dismissed.
The Court of Appeal can also now do so on the third ground of appeal as it is phrased, because it is possible for irregularity to occur in the course of the trial. If, for example, a judge has misdirected the jury on a question of fact and has wrongly quoted what the defendant said in court, or if, for example, the judge has asked far too many questions and interfered to far too great a degree, at the end of the day the Court of Appeal can nevertheless, despite those irregularities, say that there has been no miscarriage of justice because the case had been proved up to the hilt and, to use the words which are now suggested, no 1976 reasonable jury properly directed could possibly have failed to convict. Therefore, the Clause can easily be given meaning, and I adopt Lord Tucker's view that it strengthens the position of the Court of Appeal.
The Amendment might well mean that the proviso could not operate in the case of the second ground of appeal, because there might well be a mistaken decision of law, and yet, if that was the case, the proviso might not be available for the Court of Appeal if it was drafted as it is at present. It might be that evidence was wrongly admitted but, if it was established, on the drafting of the Amendment it might well not be possible for the Court of Appeal to apply the proviso. For that reason the Amendment would be defective in an important respect. It is not merely a matter of drafting.
Secondly, even if the defect were remedied—this is the other ground on which I resist the Amendment—quite apart from the fact that there would need to be consequential Amendments throughout the Bill, in Clause 10 relating to the position concerning Northern Ireland and in Schedule 1 relating to the powers of the Courts-Martial Appeal Court, why should one change language which, in effect, the Donovan Committee has clearly said is well established? What is the point of making a change if no practical effect is achieved?
For these reasons, I ask the Committee to reject the Amendment. The matter is one to which the Donovan Committee gave careful thought. As to the proviso it is a matter which has been well established in interpretation. Therefore, nothing in particular would be gained by the Amendment.
§ Mr. Carlisle
The Under-Secretary of State for the Home Department has said that the Donovan Committee did not recommend this change. The Donovan Committee did not, however, recommend the change in the body of the Clause—in other words, to change "miscarriage of justice" to "material irregularity".
I cannot think that there is any strength in the hon. Gentleman's argument that the Amendment would not apply to misdirections in law. In the example given by the Under-Secretary, if the Court of Appeal found that evidence had been 1977 admitted which should not have been admitted, surely that would be an irregularity at the trial and the Criminal Division of the Court of Appeal would still be entitled to say that although it found that the irregularity had occurred, it was satisfied that a reasonable jury properly directed, which would cover the question of a misdirection at law, at a trial conducted without irregularity, which would cover the question of whether evidence had been admitted which should not have been admitted, could still not have come to any other verdict than guilty.
It still seems to me and to my hon. Friends on this side that although, as the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) has said, this may to a certain extent be a distinction without a difference, we have attempted to put into statutory form the practical effect of the words of the proviso as admitted both by the Under-Secretary and by the Attorney-General on Second Reading.
Although, obviously, not desiring to press the Amendment to a Divison I do not feel that it is right to withdraw it.
§ Amendment negatived.
§ Mr. Carlisle
I beg to move Amendment No. 5, in page 5, line 16, to leave out subsection (2).
I suppose that this Amendment and the next on the Paper, could be said to be the two which are likely to lead to the most controversy. The hon. and learned Member for Dulwich (Mr. S. C. Silkin) have an Amendment, No. 6, in page 5, line 27, at end add:(3) Without prejudice to the provisions of section 5 of this Act a substituted sentence shall be deemed to be of greater severity than the sentence passed at the trial taken as a whole, if the maximum possible period of deprivation of liberty which the appellant would or might suffer by virtue of the substituted sentence would exceed that which he would or might suffer by virtue of the sentence passed at the trial taken as a whole.While mine and his may be said to be controversial I think probably mine is the most controversial of all.
The position at the moment with regard to appeals against sentence is that, under the Criminal Appeal Act, 1907, on an appeal the Court of Criminal Appeal shall if it thinks that a different sentence should have been passed have the power 1978 to pass that different sentence. It has, in effect, a completely free discretion with regard to the sentence which should be passed on an appeal. The purpose of Clause 4(2) of the Bill is to inhibit that power to pass a different sentence by limiting it in a way that the Court no longer shall have power to increase sentence; and indeed—and I shall come to this in a moment, because I think the words are very much open to question, as, it is obvious, the hon. and learned Member for Dulwich and one or two of his hon. Friends do, too—it limits the Court in such a way that it cannot vary a sentence which may be said to impose a sentence of greater severity than the sentence originally passed.
I do not doubt that if one reads with care the Donovan Committee's Report it can be fairly said that there are obvious arguments against the present position of the law on appeals against sentence; I do not doubt that there are strong and cogent arguments, as it says, that the law as it at present stands is capricious in that those who appeal may get their sentences put up if they appeal against their sentences, but if they appeal only against conviction they cannot have their sentences put up. I am not standing here to say that the law as at present laid out is perfect, but though there are obvious arguments for doing away with the power to increase sentence, I think the House will accept that there are also arguments why this power should be retained.
The first and most obvious argument of all is the very grave fear, which, I believe, has been expressed on both sides of this House and in another place and by people outside who are interested in matters of appeal, that one of the effects of this Bill, if carried in this form, may be to lead to a great flood of wholly unmerited appeals, and that we may find that anyone now serving a sentence which he considers to be of substantial length will appeal, knowing that he has absolutely nothing to lose and everything to gain by making an appeal. It is the view of this side of the House, while in no way advocating that the power to increase sentence should be one which the court should regularly use, that it is wrong to withdraw that power entirely from the court. It should be remembered that although this was recommended by the 1979 Donovan Committee, that Committee also recommended that it should be merely experimental. One would have thought that that experiment was already being carried out by the practice at present used by the Court of Criminal Appeal —in view of what the learned Lord Chief Justice said about increasing sentence—without it needing to be embodied in statutory form in this way.
It is often said that the strongest argument against allowing the power to increase sentence is that one would be punishing a person for making use of his right of appeal. This matter was gone into by the Donovan Committee and although, as I say, it recommended the abolition of this power, it made clear that the power had not been used for the purpose of punishing the appellant. The Act lays down the means by which this power can be used, and the Donovan Committee stated in paragraph 193 of its Report:…it may be noted that the statute does not empower the Court to increase the sentence merely on the ground that the appeal is frivolous…. ".What it does do, on the other hand, is to give to the court power to bring some logic into a sentence when, on looking at the sentence, it believes that it is wholly wrong and is out of accord with other sentences by being far more lenient than it should have been.
We believe that the retention of this power would not be used as a means of punishing people for appealing but that it would help to get uniformity of sentence, with the Court of Criminal Appeal giving guidance to courts by occasionally having to use its power to increase sentences where it believes that courts have passed sentences which are too lenient. I suggest, therefore, that this power does not have the grave disadvantage which has been attached to it in the past in that it would punish people merely because they have appealed.
Having said that, I must, since I understand that the next Amednment, No. 6, has not been selected, consider what will he the position—
§ Mr. Carlisle
I appreciate that, Sir Eric, and since the Amendment I have moved is designed to delete the whole of subsection (2), perhaps I may be allowed, having made my main point—which is that the power to increase sentence should be maintained—to comment on the position if the subsection is retained. The Clause states that the power of the Court of Appeal shall be limited in such a way that it cannot impose a sentence of greater severity. But what is a sentence of greater severity? Undoubtedly the courts have always had power, and have used it, to vary sentences. The Donovan Report specifically stated in paragraph 206:The power of the Court to vary the kind of sentence originally imposed, e.g., by substituting a sentence of borstal training, or a hospital order with a restriction order, should be preserved, even though the latter might carry a liability to a longer period of detention than under the original sentenceIt seems that if subsection (2) remains in the Bill, that will not be possible. Surely a sentence of borstal training, with a period of 18 months detention—with a possible maximum period of two years' detention—is a sentence of greater severity than one of three or six months' imprisonment imposed on a person under 21. If that is so, subsection (2) would not only prevent the increasing of prison sentences as we normally know them, but would prevent the courts from using their power to vary a sentence of the kind they believe should be varied.
One then asks the question that was asked on Second Reading: if a £5,000 fine has been imposed and the Court of Criminal Appeal wishes to substitute for it a sentence of three months imprisonment, is that a sentence of greater severity? Will the court have power so to vary? Again, as we all know, a sentence of one day's imprisonment is a formal sentence by means of which no penalty is imposed. If the subsection remains, will the court be able to substitute a sentence of one day's imprisonment for a financial penalty, or must the passing of a sentence which deprives someone of liberty be looked upon as a sentence of greater severity?
The Under-Secretary of State has commented that to find a precedent for the use of the words "greater severity" we had to look at the 1964 Act. It is quite 1981 true that those words are there used, but if we look at the notes made on the Act by the learned author of Halsbury we find the comment that these words are difficult of interpretation. By retaining this subsection we are wholly restricting the powers of the Court of Appeal, both on the general point that it should be entitled to increase sentence, or alternatively should be able to vary it. Although we all know that that power is seldom used, and although we all hope that it will continue to be seldom used, I submit that it would be wrong to retain the subsection and so restrict the power of the court in this way.
§ Sir Barnett Janner (Leicester, North-West)
Although I appreciate what has been said by the hon. Member for Runcorn (Mr. Carlisle)—and those of us who have been concerned with matters of this description have had to weigh up this position very carefully—I have, as a practising solicitor, come to a different conclusion from what is implicit in the Amendment. I do not think that the hon. Member has quite appreciated the position of the individual who, having committed an offence of a minor or technical nature, is not prepared to accept the severity of the sentence as being satisfactory in the circumstances.
In advising such an individual and weighing up the full circumstances of the case, one finds oneself with the very large responsibility of advising him to appeal —and I am sure that counsel have precisely the same matters to consider—knowing that there is a possibility of another court taking a more serious view of the offence, and imposing a heavier penalty.
One does not want to allow people to escape through the mesh. Nevertheless, we have to weigh up the position and recognise that a judge has come to a decision. A judge has a tremendous responsibility on his shoulders. He may take a different view from another judge about what the amount of the penalty imposed should be, but the fact is that it is a Judge who comes to this decision. I do not say that every judge is 100 per cent. perfect—I do not suppose judges themselves say that—the fact remains that a judge with the qualifications necessary for him to be appointed to the Bench 1982 has considered that the penalty is as severe as it ought to be.
I do not know whether counsel or a solicitor would be prepared to say that every other judge would take the same view. We all know in our experience that certain judges impose very severe sentences, much more severe than any of us would regard as reasonable. It is my opinion that the responsibility of advising an appellant is one which ought not to carry with it advice to take a chance on getting a more severe sentence when a judge, whoever he may be, has come to the conclusion that the sentence imposed was sufficient to meet the case.
The judge has heard the whole of the evidence, had the winesses before him, and been in a position to weigh up the circumstances. Someone may reply, "That is all very well, but why in those circumstances not accept the fact that if a judge, who is bound to have these qualifications before he is allowed to sit on the bench, may allow the sentence to be reduced?" There is a question which we should weigh in the interests of the accused person. If other judges in the appeal court come to the conclusion that the sentence was too severe, we may be sure that it was too severe. There may be no question about that.
I ask the hon. Member for Runcorn (Mr. Carlisle) to withdraw this Amendment. On balance, I think the view of my hon. Friends and myself is right in this matter. There is, of course, a possibility of opinions in this House at some time being taken into consideration by judges coming to a conclusion. If that were to occur an additional argument could be used for the purpose of suggesting that our point of view is right. That does not prevail yet, but I should not be at all surprised that one day that point of view may prevail and a judge would be able to take into consideration what prompted hon. Members to come to the conclusion they reached. It is not the law at present, but even as the matter stands it is perhaps an exercise of mercy—we are entitled to take that into consideration—that the opinion of one learned judge about severity ought not to be overruled by increasing the penalty. It is perfectly right that decreasing the penalty when other judges have come to the conclusion that that one judge was 1983 wrong in the severity of the sentence should remain.
§ Mr. Archer
I agree with the hon. Member for Runcorn (Mr. Carlisle) that the Clause, as drafted, presents a considerable problem of interpretation. A later Amendment in the name of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) is directed to that. I also agree with the hon. Gentleman that the burden of his speech was probably the most controversial issue which arises in the course of these debates. I was disturbed to hear the hon. Gentleman advance as the major argument in favour of the Amendment that, if this deterrent were removed, it would open the floodgates to a vast number of appeals. If that principle were accepted, it would be disturbing indeed. In effect, it is saying that an unchallenged right is provided; no one seeks to remove it, but for administrative reasons citizens are deliberately discouraged from exercising it.
This attitude could be applied to a frightening range of activity. Congestion on the roads could be relieved by agreeing that everyone would continue, as at present, to have the right of passage along the highway, but booby traps would be set at intervals of 100 yards so that those unfortunates who fell foul of them, and others, would be deterred from exercising their right. The cost of social benefits could be reduced by providing that one recipient in ten, chosen at random, should pay Income Tax on his benefit at the rate of 200 per cent. This type of argument is frightening. I hope that this principle will not be persisted in or extended.
The only other argument which appears to have been advanced in favour of the Amendment is that, if it is just that a sentence which is too high should be reduced, it must equally be just that a sentence which is too low should be increased. The force of this argument must be immediately accepted. However, if this procedure is to be applied consistently, the method of applying it should be to give the prosecution an automatic right of appeal against sentences which it considers to be too low. If one is not prepared to apply the principle over the whole range of sentences—arid most hon. Members would shrink from such 1984 an application—it is wrong to apply it arbitrarily merely to those who have the temerity to appeal.
There is one other rather worrying aspect of administration of the provision as it now exists. I refer to the way in which the court is led from time to time to give leave to appeal knowing full well that what it has in mind is that the sentence is too low, but without warning the appellant that that is what is in the court's mind. Again, the court cannot be blamed for this, because if this course were not adopted the existing power to increase a sentence would be of no effect. If appellants were warned at the outset, all that they would have to do would be to withdraw their appeals.
However, it is a frightening thought that the court should have to proceed in this way. It does not commend the public relations of the legal profession. On Second Reading my hon. and learned Friend the Member for Lincoln (Mr. Taverne) used the word "guile" in describing this procedure and was the subject of a warning from the hon. and learned Member for Ruislip-Northwood (Mr. Crowder) that this might be construed as a reflection on the court. In fact, my hon. Friend's choice of words was complimentary language in comparison with the language used in the Donovan Report, which contains a reference to the court setting a trap and comes to the conclusion that thisis not an edifying spectacle.That is in paragraph 198. The principle itself is a worrying one. The way in which it has to be applied is even more worrying in my submission, and by far the fairest way to deal with this is to introduce what is obviously the intention of the Bill as now drafted but, one would have hoped, with some reconsideration to the actual draftsmanship.
§ 3.30 p.m.
§ Mr. Grieve
One cannot listen to a debate of this kind, or to the hon. Member for Leicester, North-West (Sir B. Janner) who deployed his argument with all his customary humanity, without being strongly influenced by the arguments against the present position. I make that point at the beginning of my speech because I support this Amendment and the continuation of the present position.
1985 I agree at once with the hon. Member for Leicester, North-West that on the face of it there is something inhuman, something which seems almost like the setting of a trap, to say to all those who are convicted in criminal courts, "You may go to the Court of Criminal Appeal to appeal against your sentence" and then, when they get there, subjecting them to the risk of having the sentence, far from being decreased, increased. I shall not refer to the numbered paragraphs of the Donovan Committee Report, but that is the argument which finally prevailed with the Donovan Committee in recommending the abolition of this power in the Court of Criminal Appeal.
I am developing my argument now as to why I think the power should be maintained, and I cannot agree with the hon. Member for Rowley Regis and Tipton (Mr. Archer). I cannot quote his exact words, but the note that I made while he was speaking was that the morality of this is not all one way. There would be a case in the abstract for leaving this power with the Court of Criminal Appeal, quite apart from practical considerations, because in the abstract it is a power which tends, at any rate, towards some measure of consistency in sentencing and consistency in sentencing is something which the whole of the legal profession and, I think, public opinion today has very much at heart. It is shocking to informed public opinion when it finds that man A receives in court B a heavier sentence than man C, having done very much the same thing, appearing in Court D.
Of course, we all know that what appears when reported to be a very similar case may in its substance be a very different case. Nevertheless, there is a case for some measure of consistency in sentencing.
§ Mr. S. C. Silkin
I am obliged to the hon. and learned Member for Solihull (Mr. Grieve) for giving way. I agree with him, of course, as I am sure we all do that consistency is desirable. If one follows that to its logical conclusion, would he not agree that it would result in the right being given to the prosecution to appeal against an inadequate sentence? If one does not want to follow it to its logical conclusion, what is the reason for singling out the man who has appealed?
1986 Could not the Court of Appeal in its criminal jurisdiction achieve the consistency it desires to achieve in such cases simply by saying, "We dismiss the appeal. In our view the sentence ought to have been much bigger"?
§ Mr. Grieve
I agree entirely with the substance of the hon. and learned Gentleman's intervention. I was making the point as a very subsidiary one in supporting the continuation of the present power in the new criminal division of the Court of Appeal. I do not regard it as an overriding one by any means.
In another place, the Lord Chief Justice dealt with this matter and said that the operation of the power was extremely capricious. He gave certain figures, pointing out that over ten years there had beena quarter of a million sentences imposed at assizes and quarter sessions. During those same ten years, there resulted 17,200 applications for leave to appeal involving sentences". —[OFFICIAL REPORT, House of Lords, 12th May, 1966; Vol. 274, c. 838]In how many cases over that same period were sentences increased?—in 30. So the power is, in fact, very little exercised. We all know why. The first reason is that, if a sentence is likely to be increased, the legal advisers of the appellant—in the end, they nearly always have legal advice—will make plain that the appeal should be abandoned. Very often, the Court of Criminal Appeal itself gives a hint in advance that it is likely to happen. Further, the Court of Criminal Appeal as it now exists neither increases nor decreases sentences except when it comes to the conclusion that the learned judge has erred in principle. This meets the point made by the hon. Member for Leicester, North-West in saying that one judge may take one view of a proper sentence and another judge will take another view.
This point is made in paragraph 187 of the Donovan Report:It is not surprising therefore that the Court"—that is the Court of Criminal Appeal—has formulated its policy on this matter in the following words, taken from R. v. Ball, 35 Criminal Appeal Reports. page 164:In the first place, this Court does not alter a sentence which is the subject of an appeal merely because the members of the Court might have passed a different sentence. The trial judge has seen the prisoner and heard his history and any witness to character he may have chosen to call. It is only 1987 when a sentence appears to err in principle that the Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene'.It appears, therefore, that there is an argument from what I may call the morality of consistency in sentencing for keeping the power, but I do not base my argument for keeping it on that. The quotation I have just made and the figures I have given show that it is exercised, in a sense, so capriciously that that would not be a very good reason for keeping it. But, on the other hand, the figures show also that it is very little exercised, that a man appealing has, in fact, very little to fear. It is clear from the figures that it is very rarely done. Second, if it is done, it is done only as a matter of principle. Third, although I quite agree that one advises with great caution in matters of this kind, a man's legal advisers, if he is taking legal advice, will say, perhaps, "We think that you have a reasonable chance of having your sentence reduced and there is very little chance of it being increased". That is as far as legal advisers generally go, but it will indicate the position.
The reason why I come down in favour of keeping the power is the practical one, which was put by my hon. Friend the Member for Runcorn (Mr. Carlisle) as the kernal of his case, that the Court of Criminal Appeal has been flooded with applications for leave to appeal. I shall not detain the Committee by giving the figures. The Lord Chief Justice has spoken on a number of occasions lately about the flood of work going into that court. Anyone who has experience of quarter sessions has seen how over recent years the number of appeals from justices to quarter sessions has been increasing. The tendency is for these appeals to increase enormously.
If the new division of the court of appeal is not to be flooded with frivolous applications is there not a case for keeping this power—not as a power which is much exercised, for it should be plain that it has not been exercised, and not as a power which is designed to deter the appellant who has a strong case for getting his sentence reduced, but as a power calculated to deter the frivolous appeal.
1988 There were a number of other things which I wanted to say, but I have already taken up a considerable amount of the Committee's time this afternoon and I do not want to pursue these matters any further than I must. The argument will not be improved for being elaborated. I believe it to be a real argument of substance based on the facts of life as all those of us who practise the law will know them to be. I have been much influenced by the argument of the hon. Member for Leicester, North-West and others who have pressed the contrary arguments on me in the past, but I come down in support of my hon. Friend who moved the Amendment.
§ Mr. John Lee (Reading)
I am in total disagreement with my hon. Friends and strongly in agreement with the Amendment moved by the hon. Member for Runcorn (Mr. Carlisle). Most hon. Members on both sides of the Committee have expressed the opinion that there will be something wrong in the right of the prosecution to be able to appeal against an over-lenient sentence. I come down in favour of that, and my complaint is that the Amendment does not go far enough.
At a time when we do not seem to be able to control crime, we find that misguided leniency in sentences seems to have influenced many judges into passing sentences, many of which are quite inadequate. One must not refer directly to cases, but there were cases, which I am sure my hon. Friend the Member for Leicester, North-West (Sir B. Janner) will recognise, in which derisory sentences were passed by the judge.
I cannot think that the administration of justice will be greatly improved by the removal of this power and I agree with the hon. and learned Member for Solihull (Mr. Grieve) that the work of the Court of Appeal, as it will be constituted, will be greatly hampered, especially in view of the already large number of appeals, if people, influenced by this tendency towards leniency, are encouraged further and further to lodge appeals in this way. Clearly if we remove the deterrent of the possibility of an increase in sentence the court of appeal will be faced with a very difficult problem.
I recognise that some hon. Members feel that there is something repugnant 1989 in the idea of a person being entrapped into appealing only to find that his sentence is increased. The proposal which I put forward is much more logical—that there should be a right of appeal against the sentence at first instance. The least we can do is to keep the existing system and have to this extent consistency of judgment, which means not merely the reducing of over-severe sentences but surely a levelling up of sentences which are too lenient. We must do that to bring about consistency in sentences.
I find it rather incongruous that I should support an Amendment moved from the opposite benches, but I hope that the Under-Secretary of State will not lightly dismiss their arguments. Quite clearly the present situation is not very satisfactory, but in the absence of a more drastic revision I am afraid that it is probably far better for the existing law to stand than for it to be amended in the way proposed in the Bill.
§ 3.45 p.m.
§ Mr. Taverne
I will not lightly dismiss the Amendment, although I must ask the Committee to reject it. This is one of those arguments where there is a great deal to be said on both sides. The balance of argument is delicate. The matter has been thoroughly examined in another place and exhaustively considered by the Donovan Committee, so do not wish to add a great deal to what has been said.
I concede that there is great danger of the Court of Appeal being flooded. I have considerable sympathy with the point made by my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer) that one does not want to set unnecessary booby traps. One can extend the argument in all sorts of unfortunate ways but one has to take account of practical reality and that is why we have not ended the power to direct, in the case of an unmeritorious appeal, that the period spent waiting for the appeal shall not count towards sentence.
On the other hand that danger can he overstressed. It is significant that the person mostly concerned with the business of the Court of Criminal Appeal—the Lord Chief Justice—is in favour of 1990 this reform so I think that one need not pay too much attention to that danger.
Secondly, I concede that it is sometimes just to increase an inadequate sentence and that inconsistency of sentencing is undesirable, for it leads to a sense of injustice. But when it comes to the measure advocated in the Amendment there is no prospect of introducing consistency. The figure has been quoted of 0.17 per cent. of cases where sentences have been increased, and this shows how impossible it is to achieve consistency of sentencing. One of the only ways of doing this is by allowing the prosecution a right of appeal, because if the prosecution were allowed the right of appeal against sentence some such provision could be found. But that would be contrary to our tradition, which is that the prosecution is not concerned with the sentences awarded,
It may be that it could be done by some general review power but we are:1 long way from that and it is not something that we could contemplate in the Bill. There are some who want it and it would have to be carefully examined. I should not like to see the Home Office reviewing every sentence with a view possibly to directing some sort of appeal. It is hard to see how one can achieve this kind of consistency of sentencing. In another place, Lord Dilhorne said that some improvement might be achieved by allowing an increase of sentence on any appeal, even if only against conviction. But that would affect only 10 per cent. of all sentences. It would put much additional work on the court without achieving the object desired.
§ Mr. Carlisle
I see the strength of the point that if the court only had power to increase sentences in a few cases, we still would not get consistency with cases which had not come forward on appeal. But would not the hon. and learned Gentleman agree that the publicity attaching to increased sentences in the Court of Appeal would inevitably lead to consistent sentences because, through the publicity, other judges and chairmen of quarter sessions and recorders would know the views of the Court of Appeal about certain offences.
§ Mr. Taverne
I would not be dogmatic on this, but the sort of case in which the court has interfered is usually 1991 that in which the sentence has been out of line with those generally given for that offence. Presumably, the sentences given in such cases were already widely known. There is something in the point put by the hon. Gentleman but it is not conclusive or one of the more telling points. If one did want to increase the scope for the increase of sentences by applying it to appeals against conviction as well, it would have the further disadvantage of possibly discouraging certain meritorious appeals.
The Donovan Committee very carefully considered this, but felt in the end that the undesirable features outweighed the possible benefits of the power to increase sentence, and I hope that hon. Members will not differ from the conclusions of the Donovan Committee. Power to increase sentence involves the g setting of a trap, is an unedifying spectacle and is a deceptive procedure. The appeal may have been made because counsel has wrongly advised, or other legal advisers have been incompetent. Anyway it would not produce overall consistency. For those reasons, I believe that the Donovan Committee was right and that the undesirable features outweigh the possible advantages of keeping the power and for that reason I ask the Committee to reject the Amendment.
I was asked to comment on the use of the word "severity". Of course the language of the Bill produces difficulties, because it will always be difficult for a court to decide whether one sentence in one case was of greater severity than another sentence in another case. I conceded that, but the fact is that this is a difficulty which the courts have had to face before. It is a difficulty which the courts have had to face not only under the 1964 Act, but even under the 1907 Act. Section 5(2) of the Criminal Appeal Act, 1907, says that where there are convictions on several counts and one of the counts is dismissed, the court must again direct its mind to the question of not imposing a new sentence which is a sentence of "greater severity".
These are words which have been used before and I do not see any way of making a more specific provision, short of drawing up a most elaborate chart to show when certain sentences are more severe than others. It may be that in 1992 certain cases the court will be in a particularly difficult position when it is minded to substitute a sentence of borstal training and the original sentence was less than six months. It may feel unable to do so, because the result of a sentence of borstal training is that it may be for any period between six months and two years.
Once one rejects the idea that a court will have power to increase sentence, one is inevitably left with this kind of difficulty. All one can do is to give general guidance and leave it to the court to decide in all the circumstances of the case and to direct its mind to whether the new sentence would be harder on the appellant than the old. I cannot see that one can do more.
If one rejects the right to increase sentences, this is a difficulty which one must face and it is the only alternative to drawing up a most elaborate table or chart which would be quite unsuitable in the Bill.
§ Amendment negatived.
§ The Chairman
With this Amendment can be discussed the new Clause"—"Power to admit fresh evidence"—In the exercise of their powers under section 9 of the 1907 Act the Court of Appeal shall not be prevented from receiving any evidence by reason only of the fact that such evidence was, or could with reasonable diligence have been, available at the trial.
§ Mr. Buck
We have had an amiable and useful debate, but the time has now arrived for the Under-Secretary to make a concession to the Committee. The Amendment and the new Clause have a similar effect. Up to this point we have discussed all the Amendments with great amiability and we now hope that as we approach the end of these debates for today—which must come in a few minutes—the Under-Secretary will send us all away for the weekend happy and contented that we have had a concession from the Government which will please hon. Members on both sides of the Committee. The hon. Member may say that 1993 there is something wrong with the drafting
§ Mr. Buck
I am reassured. For the first time this afternoon I am given an indication that there is nothing wrong with the drafting. There was nothing wrong with the drafting of Amendment 5, of course—but that was just "leave out subsection (2)". I am most relieved to hear that the drafting of my Amendment is in order. In that case there is no excuse for the Under-Secretary being unable to accept this Amendment.
As the Committee will know the position is that the right of the Court of Criminal Appeal to hear fresh evidence is laid down at the moment under Section 9 of the 1907 Act. This Section gives the court what appears to be an unfettered discretion. If it thinks that it is necessary or expedient in the interests of justice, it may order any witness who would have been a compellable witness at the trial to attend and be examined, whether or not they were called at the trial. I am cutting my remarks because of the time and because I hope that we shall get a concession before we finish this at 4 o'clock.
The Court of Criminal Appeal, not wanting to be turned into a court dealing with the matter de novo laid down regulations for the admissibility of fresh evidence. These included the provision that the new evidence, if it is to be admissible, must not have been available at trial and must be relevant to the issue and credible. The main difficulty arises from the fact that the court usually regards any evidence which was known and which could have been produced with reasonable diligence as being evidence available at the trail.
Difficulties have undoubtedly arisen, as is pointed out in the Donovan Committee Report, when legal advisers seem to have been mistaken, in retrospect, in not calling evidence. In the Queen v. Kelly reported in 1965 the situation seems to be getting better. Evidence was not admitted there because it was regarded as not credible and the general issue was not fully dealt with save by obiter dicta. The Donovan Committee, at paragraph 136 recommended that new evidence should be admitted in the exact terms of my Amendment, that new evi 1994 dence should be received if it is relevant and credible and if a reasonable explanation is given for a failure to place it before the jury. We follow the Donovan Committee's recommendation here and I would like to hear the Under-Secretary say that he will accept my Amendment or the new Clause, both of which are sound good sense.
§ Mr. Archer
May I congratulate the hon. Member for Colchester (Mr. Buck) on the official endorsement of his draftsmanship? I am quite happy to ask leave to withdraw my new Clause, subject to one matter. Before doing so I would like to make sure that the court would be expected to accept as a reasonable explanation of failure the fact that an accused who was unrepresented had failed to grasp some essential point or, if he was represented, that his counsel had made a mistake. In the interests of the clients of all of us who are members of the Committee, it is important that this matter should be in the discretion of the court and that it should not be inhibited by the interpretation of "a reasonable explanation".
§ Mr. Taverne
All that I have time to say is that I regret that I cannot accept the Amendment moved by the hon. Member for Colchester (Mr. Buck). I concede that the drafting of it is unexceptionable, except that it involves consequential Amendments in the First Schedule relating to criminal appeal courts and will also involve consultation with Northern Ireland to see whether the same powers would be desired for the Northern Ireland Court of Criminal Appeal which the hon. Member is seeking to give to the Court of Criminal Appeal Division and the Court of Appeal here.
I am not sure that I agree with the hon. Gentleman that a failure to provide anything of this kind was, as he suggested on Second Reading, a failure to implement the Report of the Donovan Committee, because the Report is not clear and paragraph 136 suggests that the Committee regarded this as a flatter which should be altered in practice—
§ It being Four o'clock, The CHAIRMAN left the Chair to report Progess and ask leave to sit again.
§ Committee report Progress; to sit again upon Monday next.