§ Moved, "That the House resolve itself into Committee on this Bill."—(The Lord Chancellor.)
§ LORD ALVERSTONE
My Lords, before the House resolves itself into Committee, I think we are entitled to ask from the Lord Chancellor some further explanation of the intentions of His Majesty's Government in regard to one portion of this Bill. I apologise to your Lordships for not having been present on the occasion of the Second Reading, when I should have made some of the observations that I feel it my duty to make this afternoon, but I was absent on circuit in South Wales, and it was not possible for me to attend. I am quite sure that, whatever may be the view of your Lordships on this matter, you will feel that there are certain considerations that ought to be borne in mind before we undertake the Committee stage of the Bill.
I am in no way opposed to the constitution of a Court of Criminal Appeal within certain limits, and, to clear the air, I will state at once that which I think would be a desirable amendment of the law in connection with criminal appeals. There should, I think, be a Court of Criminal Appeal, to which persons convicted should have free access upon the question whether there was any evidence to go to the jury, upon all questions of misdirection, upon all questions of non-reception or misreception of evidence, upon any question of law raised at the trial, and upon any question as to the illegality of the sentence. I postpone for the moment the question of appeal with regard to the severity of the sentence, because that raises different and subordinate considerations. Whether or not proceedings, in error should be abolished is a matter not of great importance. I should have 1077 no objection to a Court of Appeal dealing with those. I pass it by only with this word of notice, in order that there may not be any idea that I wish in any way to fetter the jurisdiction of the new Court of Criminal Appeal, if established, in matters of law.
I now come to that part of the case on which I shall venture to detain your Lordships for a few minutes, because it is a matter of the very greatest importance and one which affects the administration of the criminal law. I notice that my noble and learned friend Lord James of Hereford, in supporting the Second Heading of this Bill, said, and said truly, that judges are not reformers. My Lords, they are not, because when one is honoured with judicial office one considers that as far as possible one should keep clear from anything approaching to Party politics, and I should not intervene in this afternoon's proceedings if the question we had to discuss was one which involved any matter of Party politics I am quite sure that my noble and learned friend on the Woolsack will agree that the administration of the criminal law should be kept free from any question of Party politics.
I speak, of course, solely for myself. His Majesty's judges have no representation in this House, and it is a mere accident that I have the privilege of a seat hero. I will indicate to your Lordships how far in some opinions of mine I am supported by my brethren, but I alone am responsible for what I say, and it must not be thought that His Majesty's judges desire in any way to interfere in that which may be thought to be the policy of the Government. Having said this, I wish to make one further observation, and I make it in consequence, partly, of what was said during the Second Reading discussion on this Bill. Whatever may be the decision of your Lordships' House and the other House of Parliament on any question of reform in the administration of the law, be it in civil of criminal procedure, I can assure the noble and learned Lord on the Woolsack that His Majesty's judges, whatever their experience may be, be it little or be it great, will place it most unreservedly at the disposal of any Government who may introduce such a measure in order to make the measure workable and effective.
1078 The main objection which I raise to this Bill is that it contemplates a right of appeal on fact in all cases of conviction on indictment. That is a momentous change, and it will, in my judgment, so defeat the object of those who promote this Bill that it is absolutely necessary that I should make my meaning perfectly clear. I do not intend to refer to previous Bills. I do not intend to quote the opinions of others, however eminent. I am aware that it will be thought that I am thereby to a large extent cutting away from myself a strong argument which might be used in support of my position, but I feel that when a measure of this character has been introduced on the authority of His Majesty's Government, when it has been moved in this House by the noble and learned Lord on the Woolsack, I ought to consider it on its own merits. I ought to consider how far its proposals commend themselves to my experience, and I ought not to shelter myself, or support my arguments by reference to any preconceived opinions of others who have studied this subject before.
The main argument used in support of this Bill by the noble and learned Lord on the Woolsack, in moving it, was the analogy of appeals in civil cases. It was suggested, quite truly, that in certain cases in the High Court, however small might be the matter at stake, and even if it be only a question of change of venue and of procedure, there is an appeal to the Court of Appeal and ultimately to your Lordships' House. I do not dispute that. In ninety-nine out of every hundred cases in which amounts under £100 are involved, there is, however, no appeal on the question of fact. But I am not going to base my argument on, any comparison for the moment. I say, and I say it advisedly, that the whole system of our criminal procedure is contrary to any such proposal as is made in this Bill for an appeal on fact, and I hope to satisfy your Lordships that, instead of being an advantage to innocent persons, it would create a danger for them which no Court of Appeal could protect them against.
I would remind your Lordships what the essential difference is. In civil disputes you have two parties. One party does not know the details of the evidence to be given by the other party, 1079 sometimes not even the substance. That is entirely absent from the administration of criminal law. There are no two parties. It is the duty of the prosecution to make out their case to the satisfaction of the tribunal on fact, and that distinction affects the whole of our criminal procedure. Not only is there preliminary inquiry before magistrates and grand juries, but, if the prosecution propose to call any fresh evidence, they have to give notice to the person charged of what that fresh evidence is; and it is only in the very rare instance of some point being developed in the course of the trial by the defence that any evidence is heard of which intimation has not previously been given. So that in a criminal trial the accused goes into court with full knowledge of the details of the evidence to be given against him.
What is the chief objection to the proposed change? It is my distinct conviction that such a procedure as is contemplated will undermine altogether the responsibility of juries, and will make them feel that it is not with them that the decision on the facts is ultimately to rest. They will feel that they have got behind them this Court of Appeal, so that they will be able to say, "We think the man is guilty. We are not quite sure on the evidence, but if we are wrong the Court of Appeal will set us right." That is a direct and serious danger as regards an innocent man. What is it that we now say—I have to say it a great many times a year—to juries when we are dealing with these matters? We have to tell them that theirs is the responsibility on matters of fact. We have to tell them that there is, in this respect, no appeal from their decision, and we have to tell them that unless they are as satisfied as they would be in any important event of their lives they ought to give the accused the benefit of the doubt and return a verdict of acquittal. The whole of that observation would be cut away from us.
I know, and there are many here who know perfectly well, what has been the effect on men of far greater learning and far greater experience than jurymen of the knowledge that there is an appeal. It has at times led judges of the highest position short of your Lordships' House to approach their duties without the same feeling of responsibility as they otherwise 1080 would, and it has in times past been pointed out that cases have been allowed to be conducted rather slackly because they were going to the Court of Appeal. If this Bill becomes law in its present shape, I am satisfied that juries will know and feel that the responsibility is no longer theirs, and that it will make them less careful how they deal with questions of innocence and guilt. At present juries do err; they err on the side of acquittal. There are many cases in which people are acquitted by juries who, if justice was done, ought to have been convicted. The tendency, if this Bill passes, must be for juries to feel their responsibility much less.
Will your Lordships for a moment consider what is the danger to an innocent man? What is the position when the verdict goes before the tribunal of three or five judges? Are your Lordships to be satisfied with the standard which now prevails in every case where the jury have decided the question of fact? The only circumstances under which the Court of Appeal may now order a new trial when there has been a verdict of a jury, is when the court have come to the conclusion that the verdict was one which no jury could reasonably have found. In criminal cases not only will there have been previous investigation, but in ninety-nine eases out of 100 no judge will allow a case to go to a jury unless there is substantial evidence against the prisoner. What will be the position of the Court of Appeal? They will have before them the verdict of a jury who have seen the witnesses; they will have before them the verdict of a jury presumably on a proper direction, because if there is misdirection there ought to be an appeal.
But I ask your Lordships to consider the peril of an innocent man who may have had a verdict of guilty against him, the jury feeling less responsibility in their verdict. When he gets to the Court of Appeal it will be urged that that verdict was given in sight of the witnesses and under the proper direction of the judge. If that were the only difficulty, if I were to stop at this objection, I would submit that this Bill, giving a general right of appeal, creates a danger which threatens those we are most anxious to protect— the innocent. What is this appeal? The appeal which is now suggested does not exist in any other tribunal, civil or 1081 criminal. It is absolutely new. The Memorandum on the Bill points out what is perfectly true, that there is an appeal to quarter sessions in cases of summary conviction; but that appeal to quarter sessions is a rehearing. The witnesses are recalled, and the court has the same opportunity of judging of their demeanour as the court of first instance had. This Court of Appeal is to have no such opportunity which, in my humble judgement, is absolutely necessary in order to come to a correct conclusion as to whether or not people are telling the truth in a criminal matter.
On what evidence is the Court of Appeal to act? Is it to act on the depositions? They are admirable as a prima, facie case, but over and over again most important points in favour of the prisoner or of the case for the prosecution are not brought out until the witness is examined and cross-examined at the trial. The judge's note, though it may be quite sufficient and well adapted to enable the judge to direct the jury who have heard the witnesses, would be wholly insufficient for the Court of Appeal. Are they, then, to act on a shorthand note? I enter my emphatic protest against the guilt or innocence of any man being determined by a tribunal which has not the witnesses before it. It is suggested in this Bill that some report is to be given by the judge who has presided at the trial. How is that to work? How are reports to be obtained after quarter sessions have separated? That is a very important matter. When it falls to my painful lot to preside at a trial for murder the report I send to the Home Office is prepared with care, and the note I take is one which will be of some assistance to the court; but the system of appeal contemplated by this Bill, of remitting to three or five judges the determination of questions of fact, is a complete innovation. It is tried for the first time in criminal law, and in my judgment it is fraught with the greatest danger to innocent persons. It astounds me that it should be thought that a Court of Appeal in a criminal case should hear the case in the absence of the prisoner. I do not know why his presence is to be unnecessary.
Further, it is generally recognised, and in support of this statement I might cite passages from the Report of the important Commission presided over in 1879 by Lord 1082 Blackburn, that if there is to be an appeal in criminal cases there must be a new trial, and it is because this is an innovation in, and a fundamental departure from, our criminal procedure that I think it right to enter my protest against it. I do not for a moment refer to the probable number of appeals. If this Bill were passed in its-present shape there would be many hundreds of appeals, but I am not going to argue the question from that point of view. If it is right, it ought to be passed whatever may be the burden put on the country. But, as this Bill is framed, it gives an appeal to the rich which the poor cannot avail themselves of. This is no claptrap argument; it is the fact. If these appeals are to be of any use, there must be counsel, and solicitors, and all the documents and other matter must be put properly before the Court. Such a costly appeal may be for the benefit of the company promoter with any amount of money who has been charged with fraudulent conspiracy, but it will not benefit the poor man in the event of there having been some miscarriage of justice. The procedure is wholly insufficient, to meet that difficulty. Moreover, the difficulties in the way of the practical working of this scheme are almost, insuperable as the Bill is now framed.
I feel my responsibility so gravely in this matter that I do not hesitate to ask your Lordships to hear me on another part of the question. If I am right in saying that there has not been thought in past times necessity for this reform, has anything happened in the last few years to call for this particular amendment of the law? As was to be expected, reference was made in the course of the debate on the Second Reading of this Bill to the Beck case. I wish noble Lords who may have to deal with this matter would do what I have had to do—namely, very carefully study the Beck Report. I assert without fear of contradiction that an appeal on fact would have been no good whatever in the Beck case. No Court of Appeal on a question of fact could possibly have reversed that finding. The miscarriage of justice in the Beck case was due to a misdirection on the part of the learned judge, a misdirection so grave that now that attention has been called to it one 1083 wonders how it ever could have taken place. But it was a misdirection which would have been set right by the Court of Appeal on the matter of law. Therefore, I say the only case that has been mentioned in order to suggest the pressing necessity for appeals on matters of fact is one which would have been met by an appeal on matters of law, by an appeal on the question of misdirection, and which in no way calls for this provision for appeal on questions of fact. It was from that point of view that I had the honour of assisting my noble and learned friend, Lord Halsbury, in preparing the Bill which passed your Lordships' House last year, to increase the facilities for appeals in matters of law.
There is a matter which is not sufficiently recognised in this House or in the country, to which attention has recently been called by a very great lawyer, and which I have for a long time determined that I would bring to the notice of your Lordships when I had an opportunity. I refer to the enormously improved condition of the innocent man, due to the fact that he can now give evidence on his own behalf. For many years I pressed that measure on the House of Commons. My noble and learned friend, Lord Halsbury—it will for ever live to his honour—took the matter up, and the present Act was passed under his auspices. I have watched the practice of that Act most carefully, inasmuch as it bears directly on the point I am endeavouring to argue, the necessity for an appeal on fact, and I have found that in many cases a verdict of acquittal has been given on the evidence of the accused person alone; and I go so far as to say that if an accused man will tell the truth at the early stages before the magistrate, so as to give time for inquiry, his ultimate conviction, if he is innocent, is almost an impossibility. I will not say an impossibility, because I do not wish to exaggerate. I have never pretended in all my advocacy of the Prisoners Evidence Act that it was any protection to the guilty. Your Lordships do not wish to pass an Act of Parliament for the protection of the guilty, but this particular Act has been a great protection to the innocent.
I will give your Lordships three of many cases. I tried at Ipswich an indictment against three men 1084 for grievously assaulting a poor sailor. On the evidence of the prosecution, all three assaulted him, and he did not know which one injured him. From the evidence of the prosecution there was not the slightest possibility of distinguishing between the three men. One of them, an ex-soldier, asked to give evidence. He gave his evidence extremely well. He admitted he had been there. He said he joined the other two men, but after a few minutes became ashamed of himself and asked the other men to desist, but as they would not he left them. That may or may not have been the true fact, but my point is that the defence could not possibly have been put before the jury except by the prisoner being allowed to give evidence.
To give more recent cases I will quote two that I tried at the Cardiff Assizes two weeks ago. One was a charge of murder and the other of manslaughter. The former case was one in which a wife had been killed in a particularly brutal manner. Evidence of the circumstances under which the injury was done to the deceased woman was given by the prisoner himself in a way which commended it to the jury, who reduced the crime from murder to manslaughter; and nothing but the prisoner's evidence could have done it. At the same Assizes a man was indicted for manslaughter, for stabbing another man in the eye with an umbrella, which led to his death. Upon the evidence of those who saw the affray and of the doctors called for the prosecution no other verdict but one of manslaughter could be given. That man went into the witness box and described that the deceased, who was a friend of his, was drunk at the time and that in a slight quarrel he stumbled on to the point of the umbrella, which went through his eye to his brain and killed him. That man was acquitted, and in my opinion rightly acquitted, by the jury. It may be contended that cases of acquittal such as this may be wrong, but that does not touch my point; they demonstrate the absolute necessity of allowing the accused to give evidence.
I must now say a word or two upon the other part of the Bill to which I take exception; but I am free to admit that this is not so much a matter of principle with me as is the topic on which I have addressed your Lordships. I refer to the tribunal for the consideration of the 1085 severity of sentences. I am aware that in the year 1892 a resolution was passed by the then judges of the Queen's Bench in favour of there being such a tribunal. The circumstances were very peculiar. At that time there were certain excessive sentences which very much troubled the Home Secretary. That is all that need be said about them; but it must be remembered that every one who has had the courage to propose this has always given a free hand to the tribunal as to how the sentence was to be dealt with, and I think it would be a lamentable thing that men should be allowed to appeal on the ground of severity of sentence without the possibility of the Court of Appeal increasing the sentence. Again the position has been changed. The judges of the High Court now work upon a memorandum to which we are all agreed, and during the last eight or ten years no one can say that High Court sentences have erred on the side of severity. I have a very strong feeling that, if there is to be reduction in the severity of a sentence, which is, after all, part of the prerogative of mercy, it would be better that it should be brought about by an administrative act of the Home Secretary than by a Court of Appeal. The Court of Appeal can only deal with the ease. The Home Secretary may properly have on such a matter put before him statements having no direct relevance to the particular case. But that is not all. I would take your Lordships' minds back to what happens in a court of assize. On a person being convicted the judge asks the police to give the fullest information with respect to the prisoner, his antecedents, and his recent mode of life. I believe it to be quite impossible to reproduce in a Court of Appeal what I may call the atmosphere of that Court. If it should be thought desirable, let the Home Secretary have increased facilities for consulting the judges of the King's Bench Division. I shall not say one single word against that, but I do seriously say that this is a matter which scarcely merits or renders necessary the proposed amendment of the law.
The case must be made out for these changes. I am sure that my noble and learned friend on the Woolsack will not suggest that your Lordships ought to make this great change in the law merely 1086 on his ipse dixit or on the statement that it is the Bill, of His Majesty's Government. It is only a compliment to my noble and learned friend to say that his lot has fallen in pleasanter places than in the criminal courts, but I support myself by what I know to be the opinion of my noble and learned friend Lord Halsbury, than whom there is no one in this country whose opinion on a matter of criminal law is entitled to greater weight. The views I have expressed are entertained by all my brethren in the King's Bench, who daily throughout the whole course of the year administer the criminal law, and your Lordships know from the public Press that they are the views largely shared by recorders, who have a very large share in the administration of the criminal law and are very learned and experienced men, and also by chairmen of quarter sessions, many of whom have had long practical experience of this question.
The certainty, the expedition, and, above all, the justice of our criminal procedure has been the admiration of jurists of all civilised nations; but the bedrock and foundation of that system is the recognised duty of the prosecutor to make out his case upon the facts so as to satisfy a jury, and that from the verdict of that jury there is no appeal on questions of fact. This Bill undermines that principle. In my opinion it will lead juries in cases of doubt to shelter themselves under the authority of a Court of Appeal, and that will involve the greatest danger to an innocent person which no safeguard in the Bill can diminish. I feel as certain as I stand here that it will create a very great danger to him, against which no Court of Appeal that does not have the witnesses before it can protect him. I have endeavoured, feebly I know, but still from conviction, to pat this view before your Lordships. I speak with some experience of the administration of the criminal law and with six years experience as Chief Justice, and I say make this change if you will, but make it only with full knowledge of the issues involved; and I hope it will not be made unless the arguments I have put before your Lordships are answered to your Lordships' satisfaction.
§ LORD ASHBOURNE
My Lords, I should like to say a few words at this 1087 stage of the Bill, as circumstances prevented my taking any part in the discussion on the Second Reading. It is impossible for any of your Lordships not to he profoundly impressed by the weighty statement that has just been made by my noble and learned friend the Lord Chief Justice of England. My noble and learned friend speaks with the weight of his high character, his wide experience, and his close connection with the administration of the criminal law. It is impossible to overstate the importance, the difficulty, and the complexity of this Bill. It practically seeks to work an absolute revolution in the whole criminal law.
I have every sympathy with the good intentions of the noble and learned Lord on the Woolsack. I am sure that he has applied himself most earnestly to working out this reform in the best possible way, but anyone who, speaking generally, is in favour of the principle of a Court of Criminal Appeal will, when he comes to put his ideas into a Bill, discover the vast difficulties and complexities that surround an apparently simple task. Juries in returning their verdicts are actuated by a deep sense of their responsibilities. It is perfectly obvious that that is the great central fact to be borne in mind, and anything that strengthens that feeling is good, whilst anything that weakens it is bad and detrimental to the administration of justice.
This Bill, in my opinion, is both excessive and incomplete. It gives without restriction an appeal in every criminal case where the conviction is one on indictment. I say at once, with all deference to the noble and learned Lord on the Woolsack, that that is impossible. It would be impossible to administer the criminal law with such a gigantic change as that. I am told that in the year 1904 there were over 9,000 such prisoners convicted. Why should they not all appeal? Would not any prisoner who was not a fool at once appeal? This Bill does not even say that a man who has pleaded guilty should not appeal. Such a man might say, "I will appeal and try my chance." That is a very grave and serious matter. The first great blot I find on the Bill is that which was commented on by my noble and learned friend—namely, the essential weakening of the responsibilities of juries if they 1088 know that any errors they commit can be at once reviewed by the Court of Appeal on the service of a notice by the prisoner.
I agree with what my noble and learned friend said as to the false analogy on which the noble and learned Lord on the Woolsack largely rested his case—the analogy of civil cases. No analogy that I can see could justify the wide extent to which that argument was pressed. If a jury in a civil case gives what is known as a clean verdict on sufficient evidence, without the judge expressing dissatisfaction, no one would be so silly as to dream of thinking that an appeal could lie. There is another circumstance to destroy the analogy. In civil cases a person appeals subject to the peril of costs. That is an immense and obvious check. But under this Bill a prisoner, without consideration of, and it may be against, advice, can appeal by the mere service of a notice. Then I have to point out that this is obviously a rich man's Bill. Any one who has money will always appeal, and there is no vestige of check. He would not have to run the risk of paying the costs as in a civil case.
Again, under no circumstances can the sentence be increased. I am sure the noble and learned Lord on the Woolsack feels as much as any one that the Bill in its present shape cannot be passed without limitations. That is manifest from the discussion which has taken place. The unanimous opinion in the Press is that without a limitation of some sort the Bill is unworkable and must break down. The question is, what check should be applied, whether it should be necessary to obtain leave to appeal. This is a matter well worthy of consideration. The Bill gives power to the Court of Appeal, without a retrial, without hearing or seeing the witnesses, without, it may be, hearing or seeing the prisoner, to recast the sentence. It does not mention from beginning to end that there should be a power of granting a new trial. New trials have been suggested as a possible direction to be given by the Court of Criminal Appeal I admit that it must be after very great consideration. If should be thought right to have new trials it is obvious that then the question has to be considered how many new trials are to be allowed, and how it is to apply in a murder case.
1089 I see great difficulty in going so far as the Bill goes in regard to the revision of sentences. It is very easy to say that sentences are unequal and unevenly distributed and that there should be some uniformity; but can anyone who has listened to the speech of my noble and learned friend the Lord Chief Justice conceive anything better than the action which has apparently been taken by the judges themselves in bringing about interchange of opinion so as to arrive at common views as to the way in which certain crimes should be punished? I see difficulty in handing over to any Court of Criminal Appeal the power of measuring sentences. The judge who passes sentence sees the prisoner; he sees his demeanour through the trial; he sees and hears all the witnesses, and he has every opportunity of examining into the guilt or innocence of the accused. Assuming his capacity, which we must assume, a judge of the High Court is the best conceivable person to decide what would be a proper sentence for a particular crime in all the circumstances of the case.
What is the necessity for interfering with the present system and embarking on this great departure? At present any prisoner who is dissatisfied can appeal to the Home Secretary, and I understand that many thousands of cases go to the Home Secretary. It may be necessary that the jurisdiction of the Home Secretary should be strengthened, and that he should be assisted by more legal aid; and it is obvious from what the Lord Chief Justice said that there would be no reluctance on his part to seeing very adequate legal assistance given to the Home Secretary. Although it may be wise to sot up a Court of Criminal Appeal, and to increase the facilities for the hearing of appeals on questions of law, I see great difficulty in going as far as the Bill goes in regard to the revision of sentences. Having regard to the attention which the Bill has attracted, and to the vast changes which it proposes, would it not be prudent, if not to postpone the Committee Stage, at least to enter upon it only pro forma.
§ LORD JAMES OF HEREFORD
My Lords, I am sure your Lordships have listened with great interest to the weighty arguments of the two noble and learned 1090 Lords who have, addressed you this evening, but I think their speeches must have left you in some doubt as to the course that is intended to be pursued. I was under the impression, after listening to the noble and learned Lord the Lord Chief Justice, that he was opposing the Motion that the House resolve itself into Committee on this Bill. I now gather from Lord Ashbourne the course he will take when the Bill gets into Committee. I think it would be better that we should have some intimation from my noble and learned friends as to the course which it is intended to pursue. I earnestly hope your Lordships will allow the Bill to go into Committee. We have had practically a Second Reading debate, though I fully appreciate that my noble and learned friends were prevented by their judicial duties from being present at the previous stage. But my noble and learned friends have both spoken as if the Bill now before the House were the only Bill that could emerge from Committee
I am not committed to the Bill as it stands. I admit that there is a great deal of force in what has been said by my noble: and learned friends, but while they admit that some Court of Criminal Appeal is necessary, even if only in the direction of further powers being given to the Home Office, they are resisting the only possible means of fashioning this Bill into a good and workable measure. I do not, of course, know what the noble and learned Lord on the Woolsack is going to say. But he has not said that he will accept no Amendment. If he should take that course I should not be able to support him, because I think the Bill can be improved in its practicability and in its utility. Let me give an instance of what I mean. The noble and learned Lord who spoke last dwelt eloquently upon the fact that every criminal should have a right of appeal, but he said that if that right were given there should be power to increase the sentence. I think that has to be remedied. How is the remedy to be effected? If it is to be effected at all, it must be done in Committee. My noble and learned friend Lord Cross, who has had great experience in the criminal law, was the author of the Commission which reported in 1879. The learned judges selected by my noble friend to-form that Commission, who were presided 1091 over by Lord Blackburn, reported in favour of a Court of Criminal Appeal.
§ LORD JAMES OF HEREFORD
Yes. I refer my noble and learned friend to Section 544. They reported in favour of an appeal on fact. But I admit that the recommendation was not in the terms of this Bill, for they recommended that there should be a preliminary application for leave to appeal. The recommendation of that Commission is now embodied in the Amendments which stand on the Paper in the name of Lord Cross, which neither of the noble and learned Lords who have spoken has referred to. That is the Court of Criminal Appeal which I shall support in Committee. I do not know what course my noble and learned friend the Lord Chancellor will take, but I do hope that the Amendments standing in the name of Lord Cross will be inserted, thus getting rid of the principal objections which have been made to-day. If you refuse to go into Committee on this Bill you will be shutting out the power of discussing these Amendments.
§ LORD JAMES OF HEREFORD
But I gathered that that was the attitude of my noble and learned friend the Lord Chief Justice.
§ LORD ALVERSTONE
I made my speech in order that the noble and learned Lord on the Woolsack might tell us how he proposed to deal with appeal on fact. I did not at all object to the House going into Committee on the Bill.
§ LORD JAMES OF HEREFORD
Then if we are to go into Committee on the Bill I do not think it is advisable to continue this debate on the Motion to resolve into Committee.
§ THE LORD CHANCELLOR (Lord LOREBURN)
My Lords, I entirely agree with the Lord Chief Justice that this is not, and cannot be, in any sense what is called a political question. So far as I am concerned, I am unaffected by the slightest tinge of Party feeling in intro- 1092 ducing the Bill. The Lord Chief Justice said, very truly, that the Prisoners' Evidence Act has worked admirably in the cause of justice. I did my best to forward the passage of that measure through the House of Commons, and I remember well the prophecies that were indulged in as to the disastrous effect it would have on the administration of justice, not by obscure persons, but by men of great judgment and authority on law. There is an ingrained predisposition on the part of members of the legal profession to resist reforms affecting the law. I do not mean that their motives are anything but the best. I will recall one instance. Lord Campbell, who was a great authority, resisted to the last the proposal some fifty years ago which allowed parties in civil actions to give evidence. He declared that it would be the ruin of the administration of justice, but four or five years afterwards you will find recorded in his note-book the confession that he had been entirely wrong, and that the reform had not only proved useful but had been absolutely necessary for the administration of justice. Therefore I desire to point out that when we hear warnings of the terrible consequences that will flow from the passing of this Bill it is desirable to recall that prophecies of the same kind have been made before and have rarely been realised. The Bill, in the first instance, proposes that there shall be an appeal on the point of law. There has been no criticism of that section.
§ THE LORD CHANCELLOR
Secondly, it proposes that there shall be an appeal in regard to the sentence. With regard to that, is it rash or presumptuous on my part to make a proposal substantially the same as one that was made fourteen years ago by that most august body the Council of Judges? The part of the Bill that has been most criticised is the section allowing an appeal on fact. But all the proposal amounts to is that a prisoner who is tried and convicted shall have the right to appeal to the Lord Chief Justice and three or five other judges, and that they shall have the power, not of increasing sentences, not of rendering a man guilty who has been pronounced innocent, but of declaring innocent a man who has 1093 been pronounced guilty. Is there anything inherently unjust or unreasonable in saying that three or five Judges shall have the opportunity of applying their practised and powerful intellects to sifting the evidence on which a man had been convicted and if they find him innocent, extending to him, not mercy or pardon, but acquittal? That may be right or wrong, the difficulties may be overwhelming, but it is not a subject for ridicule or derision.
§ THE LORD CHANCELLOR
I should be the last to reflect on what the noble and learned Lord said. I am quite sure be desires to act in a perfectly friendly way. It is said that the Bill is a Bill for the rich and not for the poor. If every prisoner is to be entitled to an appeal— to have the report of the Judge and the evidence taken at his trial sent foward to the Court of Criminal Appeal for consideration—how can it be said that it is a Bill for the rich and not for the poor? I think some proposal of this kind is necessary because of the fallibility of Judges. There is an appeal, substantially, in all civil causes, both on the law and on the fact; and it is a significant thing that miscarriage of justice has been not infrequently proved in civil causes, even when they are tried before special juries and eminent Judges. I agree that the administration of the criminal law in this country is deservedly lauded throughout the world. What I desire is to make it as perfect as it can possibly be. Is it to be said that Judges and juries who are fallible in civil cases are infallible in criminal cases? Surely if there is a liability to error in the one Court there is a liability to error in the other Court also; and as there is nothing more dreadful than an innocent person convicted and sent to gaol, an effort should be made to establish some sort of appeal in criminal as well as in civil cases.
My noble and learned friend the Lord Chief Justice said that juries would lose their sense of responsibility by reason of there being a Court of Appeal. Can anybody really believe that, when a jury are sworn in a grave matter or even in 1094 a trifling matter, they will not trouble as much about whether a man is guilty of murder or of stealing as they otherwise would do because there is a Court of Criminal Appeal? I do not really believe that men who were engaged in the serious duty of trying a man for his life or his liberty would for a moment pay the slightest attention to any consideration of the kind. I hope I am not an unreasonable person, but I did think, and I still think, that there ought to be as free a right of appeal in criminal cases as there is in civil cases. I do not think it would involve such a tremendous expense as is supposed. But even supposing we were to add three new Judges, who would constitute a Court sitting all the year round, the expenditure would only amount to £15,000 a year, and that is nothing to be considered in comparison with so important a reform in the administration of the criminal law.
I have expressed my own view, but I recognise the weight of the representations made by the Lord Chief Justice, whose opinion I most sincerely respect, and by others, and I am prepared to accept the suggestions made by the noble Viscount Lord Cross in the Amendments which he has placed on the Paper. The substance of those Amendments is that appeals shall be allowed only where the Judge at the trial thinks there ought to be an appeal or where the Court of Criminal Appeal itself thinks there ought to be an appeal. That is substantially what was recommended by the Royal Commission of 1879; it is the same proposal that was made by a Committee of the House of Commons in 1883, and one which has been recommended to me by the Association of Chairmen of Quarter Sessions.
I regret very much that that does not dispose of all the Amendments, because the noble and learned Earl, Lord Halsbury, has put down Amendments which would forbid any appeal under any circumstances on questions of fact. I hope the noble and learned Earl will not persist in that proposal to the practical wrecking of the Bill. I do not think my original proposals were either ludicrous or unreasonable, but I have done, as I always will do, my best to meet reasonable criticism and reasonable Amendments.
§ THE EARL OF HALSBURY
My Lords, the conciliatory manner in which the noble and learned Lord on the Woolsack has met the criticisms that have been made disposes us to see whether we cannot, in some way or another, meet him. I confess, however, that if the question of fact is to be disposed of by any Court that does not see or hear the witnesses, I shall be compelled to adhere to my Amendments. But if the concession which the Lord Chancellor is prepared to make goes so far as the possibility of a new trial in criminal cases, I should like an opportunity of considering the matter with a view of seeing whether we cannot meet the noble and learned Lord. I want to make it distinctly plain that, if an attempt is made to abolish the right of a man to be tried by a jury, and by a jury alone, I shall persist in my Amendment. Nothing will induce me to agree to a departure from the right of trial by jury, which I believe to be the foundation of our system of jurisprudence.
§ LORD ASHBOURNE
My Lords, may I, with the indulgence of the House, say a further word? Papers were circulated this morning containing Amendments to be moved by the noble and learned Lord on the Woolsack, but not making any suggestion of this kind. The matter is a very important one, and I would repeat the suggestion I made at the close of my observations, that the Bill should be committed pro forma today. This would enable the noble and learned Lord to have it reprinted, with the Amendments that he is prepared to accept inserted.
§ THE LORD CHANCELLOR
So far as I follow the noble Earl, what he wishes is that, if there is no evidence to go to the jury, a verdict ought to be entered for the defendant. That is what I mean also. But if there is evidence which the Court thinks ought to be submitted to the jury—evidence which in the opinion of the Court would or might justify a conviction—then they might order a new trial. If there is any confusion about it, I would much rather that the further consideration of the Bill should stand over in order that we might be able to meet and consider it.
§ THE MARQUESS OF LANSDOWNE
My Lords, I feel sure your Lordships will 1096 be grateful to the noble and learned Lord on the Woolsack if he will give us an opportunity of considering this important question further. It is one not very easy for the lay mind to follow, although I am bound to say that, if the matters had been left where the speech of the Lord Chief Justice left them, I should have felt constrained to vote with my noble and learned friend Lord Halsbury, in favour of the Amendment which he has put down. But I understand that the Lord Chancellor accepts in substance, although not necessarily in the same-words, the Amendments which have been; put on the Paper by my noble friend Lord Cross: and I would venture to suggest to him that it would be convenient to the House if the Bill were reprinted in the form in which it is proposed to accept my noble friend Lord Cross's Amendments.
§ VISCOUNT CROSS
My Lords. I should1, like to explain that the Amendments of which I have given notice are the outcome of a consideration of the Bill by the Association of Chairmen of Quarter Sessions, which body has been in existence-for forty years, and of which I have been chairman for tire past twenty years When this Bill was introduced I thought it necessary that a special meeting of the association should be called in order to consider the terms of it. I may mention that it was the largest meeting that I have had the honour to preside over, and it was attended by men of the highest possible experience. They were unanimously against criminal appeal on fact unless it was subject to certain restrictions, and in compliance with their Resolution I have placed an Amendment on the Paper providing that on the ground of fact or of mixed law and fact an appeal shall be allowed if—(a) the Judge or chairman who heard the case is dissatisfied with the-verdict or gives his consent to the appeal; (b) the Secretary of State thinks that the appeal should be allowed; or (c) the Court of Appeal, on application to it, gives leave to appeal; but in no other case. Those are restrictions to which I do not think anybody can object.
The great difficulty in the Bill as it originally stood was that you ware taking away from the jury the final decision of fact and giving that decision to three or five Judges who had not heard the 1097 evidence, who had not seen the prisoner, and who would not hear the witnesses again. The Association of Chairmen of Quarter Sessions came to a Resolution upon that which I think the noble and learned Lord on the Woolsack is also willing to accept—namely, that the Court of Appeal should not have power to reverse the finding of a jury on questions of fact otherwise than by ordering a new trial.
THE CHAIRMAN OF COMMITTEES (The Earl of ONSLOW)
My Lords, I am afraid it can hardly be claimed that the regularity of your Lordships' proceedings Constitutes an example to the other deliberative assemblies throughout the world. We have had what amounts to both a Second Reading debate and a discussion on Amendments which are on the Paper though we are not yet in Committee. It has been suggested that the best course for your Lordships to pursue would be to go into Committee pro forma. I am sorry I cannot agree with that suggestion. I think we should get into considerable difficulty. There seems to be a certain amount of agreement between the noble and learned Lord on the Woolsack and my noble friend who has these Amendments on the Paper, and I suggest that it would be better to adjourn the debate on the Motion now before us to allow the Amendments to be put into such a shape as my noble friend wishes the Committee to deal with them.
§ THK EARL OF HALSBURY
I beg to protest against the statement as to the irregularity of making Second Reading speeches on the Motion to go into Committee. On many occasions Second Reading speeches have been made on this Motion, and they are perfectly regular.
§ THE LORD PRIVY SEAL (The Marquess of RIPON)
My Lords, I do not at all intend to object to the debate that we have listened to. We have heard very remarkable and interesting speeches. But I agree with the noble Earl the Chairman of Committees that it would be hotter that the debate on the Motion to go into Committee should be adjourned rather than that the Bill should be committed pro forma. I think the adjournment of the debate would be a preferable course, because then there would be no 1098 question as to the Amendments until they were brought forward properly for discussion. Although we have had a most interesting debate, I venture to say that we have heard, as we occasionally do in this House, noble Lords speak several times notwithstanding that we are not in Committee.
§ Moved, "That the further debate be adjourned."—(The Earl of Halsbury.)
§ Agreed to, and ordered accordingly.