§ 3.22 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1 [Additional judges of High Court]:
LORD SILKIN moved to add to Clause 1:
At least two of the additional judges so appointed shall be appointed from among
judges of the County Court and the stipendiary magistrates.
The noble Lord said: I beg to move the Amendment standing in my name on the Order Paper.
§ THE LORD CHANCELLOR
I do not know whether the noble Lord would like to discuss this Amendment and the next together, as they are in the same field. It is entirely for the noble Lord and for the Committee, but I think that it might be convenient.
§ LORD SILKIN
Great minds seem to think alike. I was going to make that very suggestion, and I welcome the noble and learned Viscount's making it. This Amendment is directed to Clause 1, which provides for an increase in the number of High Court judges, and it seemed to my noble friend Lord Chorley and me that this would be a suitable occasion for discussing the question of the qualification of judges that were to be appointed and even the possibility of their being appointed from a wider circle than that from which they have hitherto in practice come. I recognise straight away that this may be regarded as going rather wide of the terms of the Bill itself, which provides for a simple increase in the number of High Court judges, but we thought that it would be convenient at some time to have a discussion of this kind and to see whether we were making the best use of the available legal material we have in this country. The first two Amendments are directed to inquire into this question.
As the Committee are well aware, the source from which it is possible to provide a Judiciary is the two branches of the legal profession—solicitors and barristers. Hitherto it has been the normal practice for all legal appointments to be made among the barrister branch of the profession, with some minor exceptions. A registrar of a county court is normally a solicitor and there are some masters of the Supreme Court who are solicitors, but, by and large, with the the further exception of certain posts which are quasi-judicial and with which I will not trouble the Committee, I think it will be agreed that the normal practice is for all legal appointments to be from the barrister branch of the profession.
955 I want to suggest to the Committee that this is not necessarily making the best use of the available ability and legal capacity we have in this country. All professions develop and change in character. When I entered my profession half a century ago—and here I want to declare that I have no personal interest in this question at all: I have no ambition to become either a county court judge or a High Court judge, or even a Law Lord, at this time of my life—it consisted in the main of a large number of relatively small practitioners, and looking back at the profession as I then knew it, I would not have ventured at that time, if I had been in a position to do so, to suggest that the normal type of solicitor was a suitable person to be promoted to the Judiciary in any shape or form. But the position is changed to-day. We have now very large and important firms of solicitors, who specialise in the profession and are at the very top of it, with a large number of partners, men of great wisdom, experience, legal knowledge, integrity and objectiveness, who are highly respected throughout the country, men who, in my submission, are as well qualified to take part in the Judiciary as the normal member of the Bar.
It might be said that members of the Bar are accustomed to advocacy and that the type of person I have in mind is not normally an advocate, but that would not be correct. Many of the barristers appointed to the High Court are not normally advocates at all; they are experts in particular branches of the profession, which may involve a certain amount of advocacy but very little. They are, in fact, consultants. I recognise that many of the barristers appointed to the High Court have been prominent advocates in their day, but that is by no means universal, and a good many members of the Bench were certainly not prominent advocates, though they have done a certain amount of advocacy. Therefore, I would submit that though advocacy is an advantage in a member of the Judiciary, because a judge should know the laws of evidence, the kind of solicitor I have in mind is one who would readily master the laws of evidence and be perfectly competent to deliver a judgment as is required of a High Court judge and to carry out all 956 the functions of a High Court judge. We know that members of the Bar who are appointed as High Court judges may be called upon to go to Assizes and do criminal work, and to deal with divorce work and all aspects of the law, of some of which they have had no experience whatever. I could name, but I do not propose to do so, many High Court judges who have been appointed and have been put on to work which they have never done before in the whole of their professional careers. There is no suggestion that they have not been perfectly competent to do it, and they discharge their duty to the complete satisfaction of everybody.
The kind of solicitor I have in mind and whom I have described, a man of wide experience, would be equally competent. Indeed, the whole of his training is directed to that very aspect of life, and he would be perfectly competent to carry out any of the functions of a High Court judge that he may be required to perform. I say that in logic and in good sense it is wrong to deprive the nation of the services of men of that kind. It may be thought, perhaps, that it is too big a jump for a solicitor who hitherto has never been appointed to the Judiciary, to be appointed direct to the High Court. If the noble and learned Viscount were to ask me to-day if I would settle for giving them the opportunity of going on to the county court bench or of becoming stipendiaries, with the prospect that there will be a ladder of promotion to the High Court, then I should be quite satisfied.
I now want to come to the question of this ladder of promotion to which I have just referred. In my view, we are losing a great deal of material by not making the best use also of the county court bench. The county court bench consists of a large number of judges who to-day have a wide jurisdiction. The jurisdiction of the county courts has been greatly extended. County court judges are required to deal with cases where anything up to £400 is involved, and where important questions of law arise; and in some matters they have unlimited jurisdiction, with no financial limit. I would not say that the jurisdiction of the county court is in all respects co-terminus with that of the Supreme Court, but, as I say, the 957 county court has a very wide jurisdiction indeed, and county court judges are required to have a wide experience of life. They meet sections of the public that even High Court judges do not meet, because, apart from dealing with matters where the jurisdiction is great, they also deal with relatively small matters. You can go to the county court if you are involved in a dispute to the amount of £2 or £3, or you can go there and claim damages which might run into thousands of pounds. So that county court judges have a wide experience, and I have never been able to understand why they should not be promoted to the High Court Bench to a far greater extent than is the case at present.
I asked the noble and learned Viscount a Question yesterday as to how many county court judges have been promoted to the High Court since 1945, and when. The answer given was that five county court judges have been promoted since 1945, and the promotions were in the years 1945, 1947, 1948, 1950 and 1958. In other words, since 1950 (and I am not suggesting there is any particular significance about the year 1950) only one county court judge has been promoted to the High Court. I cannot believe that there has been only one county court judge since 1950 who has been regarded as suitable for promotion to the High Court. I am sure the Committee will agree with me that, if it is possible to find county court judges suitable for promotion to the High Court, it is most desirable that they should be so promoted.
This would have two effects. The kind of person who will accept a county court judgeship at the present time, with the knowledge that the avenue of promotion is virtually closed, that that is the end of his career and he is in receipt of a salary of something like £3,000 a year, with the greatest respect to him is not likely to be the most highly qualified person to sit in the Judiciary. I have little doubt from my own personal knowledge that there are many members of the Bar who would refuse a county court judgeship to-day, under present conditions, with the knowledge that they have perhaps one chance in 100,000 of getting to the High Court, but who would accept if they had a reasonable prospect of promotion to the High Court within 958 a reasonable time. So it would have the effect of improving the quality both of the county court judges and of the High Court judges.
I suggest also that the same thing would apply to appointments to stipendiary courts: that solicitors should be eligible. Indeed, I think the case there is even stronger, because a great many solicitors act as advocates in those courts.
§ THE LORD CHANCELLOR
I am sure the noble Lord would not wish to go on with a point where he is under a misapprehension. Solicitors can be made stipendiary magistrates. I appointed one to the London bench about a year ago and one to a provincial bench.
§ LORD SILKIN
I was really directing my mind primarily to the existing practice. I am vaguely familiar with the fact that one or two solicitors have been so appointed; I did not imagine that they were disqualified. But my point really is that so few are made stipendiary magistrates, and that is a branch of the Judiciary where the experience of a great many solicitors would be invaluable. They have exactly the kind of experience that is required. And I suggest that there is equally good ground, for the reasons I have given in the case of the county courts, for giving stipendiary magistrates a real opportunity of going higher. I do not think I need elaborate the case any further. I want to repeat that I am basing my case on the desirability of getting as good a Judiciary as we possibly can. In saying this I am making no criticism of the existing Judiciary, except that I feel we are not really getting the best county court bench we could get. If the principle of my Amendment were accepted, then I think it would attract a better qualified type of person than we are getting.
On the Second Reading the noble and learned Viscount suggested that when he made his last series of appointments he could have got three well qualified, suitable persons for every one that he appointed. I am sure he will take this in good part; I do not wish to challenge what he said at all, but I myself went through the Law List, and I am bound to say, with some knowledge of the personnel, that if I had had the responsibility of making these appointments—which, fortunately, I had not—I 959 should have had some difficulty in finding three men for every one he appointed. A good many of the people from amongst whom the appointments could be made were Members of Parliament, who are not ipso facto the most suitable persons to act as judges, although some have been very good judges. Others are not practising, others are too old, and I should have found some difficulty. Even if the noble and learned Viscount could have found three for every one he appointed, I still say that, if when he looked around he had had this avenue of promotion from the solicitors to whom I am referring and from the type of county court judge that I have in mind, he would have had a far wider choice and probably would have been able to get an even better Bench.
I hope I have made the case. I quite realise that the noble and learned Viscount cannot accept my Amendment today; I do not expect him to. My noble friend and I have put the Amendments down with a view to getting discussion on them. But I would ask the noble and learned Viscount whether he would be prepared to set up an impartial committee to look into this question and advise; to take evidence as to the quality of people who may be available, and report. If he could do that, I think a large amount of value would have come out of this debate. I beg to move.
Page 1, line 7, at end insert the said subsection.—(Lord Silkin.)
§ 3.44 p.m.
LORD CHORLEY had given Notice of his intention to move to add to Clause 1:
() A solicitor of the Supreme Court of not less than ten years' standing shall be eligible for the office of judge of the High Court of Justice.
§ The noble Lord said: In view of what has been said, perhaps it would be convenient if I were now to speak to the second of these two Amendments. My noble friend Lord Silkin has made most of the points, as one would expect from somebody who is so conversant with these matters, and I hope I shall not go over too much of the ground which he has already traversed. I should like to start with the point my noble friend made 960 at the very end of his speech, when he reminded your Lordships of the statement of the noble and learned Viscount to the effect that he could have found three suitable appointees for every one of the High Court positions which he had to fill last year. That statement has naturally attracted a good deal of attention in the profession. During the days afterwards I had it frequently brought to my attention, and I must say that most of the people with whom I discussed it thought the noble and learned Viscount had been rather too optimistic, which I think is my noble friend's view. However, I am not in a position to judge about that, and he is in a very much better position than I am.
§ I mention that only as leading up to this point, which is putting a point which the noble Lord, Lord Silkin, made in rather a different way—namely, that the appointment of a judge is always something of a gamble. On the whole, it is a gamble which is weighted in favour of good appointments. No doubt the Lord Chancellors who make them are men of great experience, both as statesmen and as lawyers, and the result is that they do not make many mistakes. But when one considers that the qualities which are required in a judge are not by any means the same as those which are required in a first-class advocate, it is remarkable that so many of the great advocates who are appointed turn out to be very good judges. Of course, there is the minority who do not, and the noble and learned Viscount knows just as well as I do that here and there mistakes have been made. One of the difficulties, of course, is that there is not a great deal to go on from the point of view of the past history of the man in question, because he has been operating as an advocate rather than as a judge. It seems to me that the great value of the first of these Amendments is that we are there dealing with a group of men a very substantial number of whom have justified themselves certainly on the county court bench.
§ I am not so familiar, and was not so familiar when I was practising at the Bar, with the stipendiary magistrates, but I saw a great deal of the county court bench. There were undoubtedly during that particular time a number of county court judges who would have admirably 961 filled the position of a High Court judge. It is quite true that since the war more of them have been elevated; before the war I think there was only one. If one were to mention names, I could reel off half a dozen who would certainly have made admirable High Court judges. The point is that the proof of the pudding is in the eating. The office of a county court judge is in some ways a more difficult office to fill than that of a High Count judge, because the kind of case which he handles is very much the same and he handles it often under much more difficult conditions, without such skilled help from the advocates who are appearing, often having to travel about the country in conditions of some discomfort, usually without a proper library at his disposal, and sometimes working in a building which is not really fit for the administration of justice and sometimes dating right back to the middle years of the last century. That such high quality work can be turned out by so many of the county court judges seems to me to show that we have here a reservoir from which a much larger number of the High Court Bench might well be selected.
§ I am sure my noble friend Lord Silkin was right when he said that if it were realised that there was a good prospect of going on, younger men at the Bar, who are in good practice and who have not been thinking about indicating that they would be ready to accept an appointment to the county court bench, would be much more ready to do so. It would undoubtedly be an incentive to them. There was a famous Victorian Lord Chancellor who once said—I do not remember his words very distinctly—that it took about fifteen years for a man to become a first-class judge. That may be a little of an overestimate, but, surely, if he could spend the first part of that time working in the county courts it would give him an experience and a capacity which would certainly redound to his credit if he were appointed to the High Court Bench. Therefore I feel there is a great deal to be said for carrying out the spirit of my noble friend's first Amendment here, and I support what he said about its being time that we made a survey of the whole of this difficult problem, the problem of judicial office in this country. It has grown, even in my time. The num- 962 ber of judges in the Queen's Bench Division has much more than doubled, and the whole picture now is so different from what it was forty years ago that I feel the time has been reached when we should make a much more careful and scientific survey of the position.
§ With regard to the second of the two Amendments, we have, of course, more than once in this House heard suggestions made that it was time that solicitors were regarded as qualified to hold these higher judicial offices. I remember the noble Lord, Lord Ogmore, who sits on the Liberal Front Bench, making a very persuasive speech to that effect within the last year or so. I consider that all judicial offices should be open to both branches of the legal profession, and I considered putting down the second of these Amendments in rather wider terms in an attempt to secure that; but, as the noble Lord, Lord Silkin, has pointed out, this Bill is one of a comparatively narrow compass, and on the whole it did not seem to me suitable to make the proposed Amendment any wider than it actually is. But I think, from what the noble Lord, Lord Silkin has said, it is pretty clear that this particular type of promotion deserves serious consideration.
§ I do not think it can be seriously contended that there are not a number of solicitors who are very well qualified indeed to hold judicial office. Many solicitors, as my noble friend Lord Silkin has pointed out, have quite large practices in the county courts where they contend successfully with barrister opponents. Quite a number of these have in fact transferred to the Bar. The noble and learned Lord knows an old friend of both of ours, Mr. Justice Lynskey who, if I may say so, was a very good judge at first instance, and who was a typical example of the solicitor who, having practised successfully in county court, transfers to the Bar and is then promoted to the Bench; and several others could be named. I think the Bill which we passed only in the last Session, which would enable the time that a man has served as a solicitor to count towards the period as a barrister which is required for his appointment to high judicial office, may be of considerable assistance in helping that type of transfer.963
§ But, as my noble friend Lord Silkin has said, most of the abler solicitors are not those who do the court work; their practices are in effect in the High Court. It is true they have no right of audience to address the judge, but every barrister with much practical experience must know several men of this kind whom he would regard as of judicial timbre. I have heard it said that men of this kind would not want to abandon the lucrative practice of the solicitor's profession in order to accept judicial office, and it may possibly be that that is so, though I personally doubt whether it would be so in the case of more than a minority of them. However, whether it is or not, surely in fairness the decision should be left to the man in question to make it and not for it to be made for him by people who are looking around for arguments against this proposal.
§ It may also be objected, and no doubt will be, that an experience of work in court is necessary before a man can hope to be a successful judge, and I think everybody would agree with that. But, of course, many of these men in fact spend just as much of their time in court as the barristers who are now eligible. It is true they do not address the judge, but surely they are working on the case just as intensively and just as efficiently as the advocate himself; and they are just as familiar with all the technicalities of the procedure which come up, which the judge has to solve as the case goes along and which make it so necessary that the judge should have practised in matters of this sort. The fact that a solicitor is just sitting in the solicitors' benches at the court does not mean that he is not giving his expert mind to the consideration of these problems, just as much as the barrister; and very often the barrister and the solicitor consult in a little conversation before the barrister makes the submission to the judge which solves the problem and enables the judge to see the proper way of handling the situation.
§ I admit that the problem of selection is not altogether an easy one. As I indicated at the beginning, it is not an easy one now for the noble and learned Viscount on the Woolsack who is making it. It must be one of the most trying and difficult parts of his task. Certainly selecting solicitors would be even more 964 difficult than selecting barristers; but I am sure that, if it is tackled vigorously and properly and with the facility which Lord Chancellors bring to bear on these problems, it certainly is not insuperable. In all the circumstances, it seems to me that a very strong case has been made out for looking at this matter of judicial appointments again, giving encouragement to those who have already been successful on the lower rungs of judicial office and also making use of that great reservoir of really able solicitors, in order that we may be able to get the ablest of the men in this profession to fill the onerous and important office of a judge.
§ LORD OGMORE
I feel grateful to both the noble Lord, Lord Silkin, and the noble Lord, Lord Chorley, for giving us the opportunity to discuss this very important issue to-day. As the noble Lord, Lord Silkin, has, I think, said, certainly none of us would wish to support the first Amendment in this form. So long as we have a system—and it has proved up to now a perfectly good one—under which the Lord Chancellor appoints, or at any rate recommends the appointment of, judges, obviously one must not fetter him. We cannot say, "You must appoint only three from one area of the profession", or "You can appoint only two from another area"; he must be unfettered. But on the general question I think it merits consideration—I am dealing now with the first Amendment.
As your Lordships know, in this country, unlike under the Continental system or the Colonial system, we have not had a large number of judges going up the ladder until they arrived at the summit. We have had a few eminent judges, professional full-time judges, and a large number of unpaid lay judges; in fact, over 90 per cent. of criminal work in this country is done by the lay magistracy. That is our system. Some may prefer the Continental system, some may not. This is our system, and it is very difficult to try, as it were, to include into it elements from another system. Therefore we have to assume, and should assume, that our High Court Judiciary must be maintained at a very high quality—at the level it is now. As I have said to your Lordships on many occasions, the bulwarks of our civilisation in this country are a free Press, a free Parliament and an independent 965 Judiciary of high quality. We have all three, and so long as we have all three our civilisation will subsist. If any of them go, it will fall.
That being the case, it is obvious that only a few county court judges, and still fewer, in my view, stipendiary magistrates, are eligible for the High Court. But there are a few, and I think, if I may say so with the greatest respect, that succeeding Lord Chancellors have not elevated county court judges adequately in the past. I am very glad that the noble and learned Viscount, the Lord Chancellor, has appointed solicitors to the stipendiary bench, and I congratulate him upon it. I say this because I have in my time, years ago, practised before judges of the county court, some of whom were eminently suitable for the High Court—in fact, more suitable for that than for the county court. A large number, of course, were not, but there were some who were.
I recall over thirty years ago a judge in South Wales who was really a misfit in the county court. He would have made a good High Court judge but he was no good as a county court judge. He got worse as time went on. He is dead now, so there is no harm in mentioning it. I feel that if there had been a real opportunity of his being promoted to the High Court, to which he was really suited, then his own career would have been a much happier one and he would have rendered much more useful service to the community. My own law tutor, who succeeded in teaching even me a bit of law, poor man, became a county court judge. He was a good man; I used to brief him after I qualified. He had a remarkable mind, and yet he spent years on the county court bench. I feel that while the principle is right—that is to say, you must never have a ladder—I do not feel that succeeding Lord Chancellors have obtained the cream, as it were, of the county court bench for the High Court.
The second point—and this, I think, is an important one, and, from my own point of view, in a sense even more important than the other—is the question of appointing solicitors as High Court judges. The noble Lord, Lord Chorley, was good enough to mention me, but I myself never actually suggested this—not in my wildest dreams. It really raises the question of the structure of the 966 professions. While the two professions—because they are not branches; they are separate professions—are organised as they are now, I do not think I should ever advocate the appointment of solicitors as High Court judges. I think there is a good case for their being stipendiaries, even a case for their being county court judges, but as the two professions are organised at the moment I cannot see any case for their being appointed High Court judges.
I am in no position to speak for the Law Society, though I am a member of it, but I think it would be found that the Law Society, or the Council, are in favour not of fusion but of a common training, a common education of lawyers and a common system of examinations; and that is my own view. I can, perhaps, speak with a little experience of this subject as I am a solicitor in this country and I am a member of two Bars in independent Commonwealth countries and have practised for some years at them. It seems to me that the position about fusion is this. While a country is in quite an elementary stage so far as its commercial and business and social system is concerned, then you have only one system of lawyers; the country cannot afford more than one system. That is how our colonial system grew up. Then at a certain stage when it becomes industrialised you need a specialist branch. It is very difficult to have fusion.
I will give an example. The first case I had abroad as a young man was as the sole lawyer defending a man charged with murder at the Assizes. Nobody would be presented with that sort of experience in this country. It was the first case I had in that country. Another occasion I remember was, as a young man of 26, trying in a Mohammedan State where, of course, the Koran is really the legal textbook, to work out what the position of the debenture holders was under the Koranic rule, which really deals with camels and dates and things of that sort. When you get to that stage you really want amendment of the law, but you also want a broader sweep of legal experience than any one man can be expected to have.
Therefore I think in this country, with all its complications, fusion really is 967 not a system that would be of any benefit to the community. What we need is one profession with two branches, a common system of education, a common system of examinations; and then, after the examinations, the man could decide whether to be a general practitioner or whether to become a specialist, much as the medical profession is organised. I am sure that would be the right way. Holding these views, I do not feel that this suggestion that solicitors should become High Court judges is really one that holds water. I believe that what we should concentrate our efforts upon now is trying to bring into effect, which could be done comparatively easily, this common system of education and examination. It would not upset the Law Society, who would deal with the general practitioner. It would not upset the Inns of Court, who would deal with the specialists. But it would mean that there would be a common grounding, and it would give the young man an opportunity after he had qualified—that is the point—of deciding what branch of the profession to go into, and not as now, having to decide before the training when he knows nothing about it at all.
I make this appeal to my friends at the Bar, and particularly the Benchers, to look at this matter carefully. I have been critical of the Law Society in the past, but I am glad to say that to-day, under the enlightened leadership of a series of outstanding Presidents and the administration of Sir Thomas Lund, the Law Society are prepared to go forward with this plan and other plans. They have made arrangements to go into the whole question of the Common Market, for instance. There are problems we lawyers have to face in the future that we have never had to face in the past. We cannot do this as we are, divided on illogical lines. I ask the Benchers to look at this problem, not in the terms of the past but of the future.
§ 4.8 p.m.
§ LORD DENNING
May I first say a word on the point which the noble Lords, Lord Silkin and Lord Chorley, raised, whether there should be a ladder of promotion within the judicial hierarchy, because it raises very serious questions of principle? Hitherto in this country people have been chosen as 968 judges, men of mature age, from 45 to 55 years of age, and appointed either to the High Court Bench or the county court bench, and then it is the expectation that that is their job for life without any special hope of promotion. Is that right? The underlying principle of our system is this: judicial decisions are not to be influenced, on the one hand by a fear of dismissal, on the other hand by the hope of promotion. Indeed, our judicial independence and impartiality rests on that underlying principle. But in other countries, such as on the Continent of Europe, judges are appointed on a career system, a man starting as a judge when he comes out of the university and going up through the judicial hierarchy.
I have heard and know that there are great dangers in this system from favouritism and influence. Nominally there is security of tenure; they cannot be dismissed except for misconduct. But the hope of promotion and the favouritism which is thereby accorded, and the influence of a decision, as such, to suit the powers in authority, mean that there is a great danger in introducing into this country a ladder of promotion. As the system works now, an able man, ambitious to reach a High Court judgeship, does not accept a county court judgeship. In that way we reach a level whereby, on the whole, the best and most able men wait for, and are appointed to, High Court judgeships. Others who are not perhaps quite in that category are county court judges or stipendiary magistrates, and the like. They make that their job. There are exceptions and, quite rightly, the Lord Chancellor has on occasion made outstanding appointments whereby men of the county court bench are appointed to the High Court Bench. We know them all, and well have they done their work; but I would suggest that there should be no regular ladder of promotion, and that on the whole the system as it is works well. So much for the ladder of promotion.
The next question is whether solicitors should be available for appointment to the High Court Bench. We all know, as the noble Lord, Lord Silkin, said, that men of the most eminent and outstanding qualities are to be found among the solicitor's profession, and they 969 always have been. Barristers and solicitors are two specialist branches—as much specialist as are physicians and surgeons in the medical profession. The barrister is, so to speak, a specialist in the trial of cases. If you should ask any of our friends who are solicitors how to deal with the rules of pleading, I venture to think that they would not know the difference between a traverse and a confession and avoidance; or if a question arose in the courts as to the rules of evidence, would a solicitor, however experienced and knowledgeable, be able to jump up at once and say, of his own knowledge, "What the soldier said is not evidence", or to deal from his experience with questions as they come up every moment?
But perhaps, more than anything else, the best example that can be given is that at the end of a case when it comes to the summing up to a jury or to putting the facts of a case; or, in the Court of Appeal, to the judges, immediately upon the end of the presentation of the case, summarising the whole of the issues and giving their judgment at once. I can tell your Lordships that the way that our judges do it is the envy of the civilised world. I have many friends in the United States of America, where judges are selected from a fused, combined profession. Many of them have said to me, "I cannot think how your judges can do it: how they can sum up to the jury at the end of a case; how judges of the Court of Appeal, without reserving judgment, can deliver a full extemporary judgment covering all the issues at once." What is the answer? It is simply that as advocates they have been trained for twenty, twenty-five or thirty years to go through the facts, to sum up the evidence, and to put the case to the jury or to the judge. It is a specialist ability in the conduct of the trial of cases which can be acquired only by experience; and this specialist system, I suggest, produces judges who are, because of it, the envy of the civilised world.
To take the great solicitors' branch of the profession, the United States have their corporation lawyers who hold a preeminent place in the community, far above the trial lawyers, as they call them. Here we have solicitors who are heads of many companies and firms, and who exercise great influence and control 970 millions in money. They have their great avocation, but they are not specialists in the trial of cases. That is one reason why I suggest that there should be no general rule, as my noble friend puts in this Amendment. But, as it is all one profession, is not what my noble friend Lord Ogmore said the right solution—namely, that we ought to have a more common system of legal education between the two branches? We ought at least to have a common Part I.
There have been discussions on it for some years, but they seem to go on for ever. The examinations ought, so far as possible, to be common so that one need not make up his mind at the first moment, but in the first ten or twenty years of practice, so if he feels that he can do a solicitor's work better than a barrister's or vice versa, he can change from one to the other, and those who have ambitions towards the bench can achieve them in that way. But, having made his decision and having committed himself to his profession then, like all of us, he must stick to it. In that way the question can be solved. But, on the whole, the present system has not served us too badly, and I suggest that we can go on just as well as we are.
§ LORD MANCROFT
I should like to be associated with the views just put so lucidly by the noble and learned Lord, Lord Denning. It seems to me that one overriding principle should be able to cover the Lord Chancellor in this immensely difficult task, and that should be the unfettered right to choose the best man at the right moment for the right job. If we tie the Lord Chancellor's hands by suggesting, as this first Amendment does, that there should be a certain proportion of county court judges as High Court judges, that will be carried further to the Court of Appeal, where the same difficulty will arise. We shall have, as the noble and learned Lord rightly points out, the idea of a ladder of promotion within the Judiciary, something which I think would be wholly undesirable. There should be no ladder of promotion, nor should there be any proportional adjustment between various members of the Judicial Bench.
Before the war it was occasionally thought that a Member of Parliament who was also a Silk of certain standing 971 had some right to be considered for a High Court judgeship. That gave rise to much complaint. It also produced several fine judges. If one looked at the composition of the High Court Bench in those days, it was impossible to tell to what political Party a certain judge had belonged in his political days. That was a great credit to all concerned. I think that now we have gone a little too far the other way, as men of eminence in the legal profession will not go into Parliament because they think that the fact that they are political Q.C.'s will stand in the way of possible promotion to the Bench. That is equally bad. It is for this reason that I would oppose the sentiments in the first two Amendments and leave the Lord Chancellor as unfettered as possible, as preceding Lord Chancellors have been, to produce the Bench that he thinks he can best find solely on merit and not on any mathematical qualifications.
I also agree with the noble Lord, Lord Silkin, that many solicitors of the highest possible standing have an intellectual calibre second to none. But if I might venture to remind your Lordships, I moved the Second Reading of the Barristers (Qualification for Office) Bill, 1961, which dealt with this specific point. If a young man in practice as a solicitor finds that advocacy is really his bent, it is particularly easy now for him to change his profession, as indeed a few have done.
Your Lordships will remember that at the time of the Nuremberg trials the world at large, and the legal world in particular, were outstanding in their praise of the performance of the two members of the English Judiciary who comprised the court. The reason put forward by one American legal paper was the intellectual dominance of character which those two judges exercised. The American journalist pointed out that the powers of an English High Court judge—of a red judge from the Bench—rest as much as anything upon the respect given him by the Bar in the court in which he practises because there is not a barrister present who does not know that the judge knows just as much about it as he himself does, and probably a great deal more. With the greatest respect for the noble Lord, Lord Silkin, and the solicitors' profession, I 972 do not think that that practice would prevail if what he proposes were to become law. I therefore very much hope that your Lordships will not support these two Amendments but will allow the Lord Chancellor, as Lord Chancellors in days gone by have had, unfettered power with nothing except his own experience and judgment to guide him in choosing.
§ LORD CHORLEY
The noble Lord would agree with me that the Lord Chancellor has not got unfettered power, because even if he wanted to appoint a solicitor he could not do it.
§ LORD MANCROFT
I want the power that he now has to be unfettered. I am trying here to prevent unsuitable measures which would not produce the results which have hitherto been produced. I suggest that if the noble and learned Lord of the day on the Woolsack is still given the right to exercise his powers unfettered in any way, Lord Chancellors will continue to be able to produce what they have done in the past, by far and away the best judicial Bench in the world.
§ 4.22 p.m.
The whole problem arises from the fact that there are two branches of the legal profession, barristers and solicitors. There should be, as in many other parts of the world including many parts of the Commonwealth, only one branch, and that is the lawyers. There are not two branches of engineering, two branches of accountancy or two branches of surveying; there is only one branch. Therefore there should be only one branch of the legal profession, and that is simply the people known as lawyers. So far as specialisation is concerned, you could have all the specialists you like who would set up on their own and carry on just as they are to-day. There would be no objection to that at all. They could do exactly the same as the medical profession. On the one hand, you can go to see an ordinary medical practioner, and, on the other hand, if you want to pay one hundred guineas you can go along to Harley Street. It would be exactly the same for the Temple.
The people who are to be considered are not the legal profession—and that is always where we go wrong—but the 973 general public. It is the general public which has to pay far more for its law to-day than it should pay, because there are two branches of the profession. I am going to raise this matter at a later date. I shall be hopelessly defeated by the "Old Pals' Club" in your Lordships' House. I know them all, and I have the greatest admiration for them, but still they will completely defeat me. I believe that when we have one branch of the legal profession it will be cheaper, it will be simpler, and it will do away with most of the Lord Chancellor's problems.
§ 4.24 p.m.
§ LORD CONESFORD
The noble Lord who has just sat down advocates the fusion of the legal profession. I suppose that almost anything is in order to-day, but there is nothing in this Bill about the fusion of the two branches of the legal profession, nor is there any Amendment proposing that they shall be fused. The arguments against both the Amendments which are on the Paper, which for convenience we are discussing together, have been convincingly given, I think, by my noble and learned friend, Lord Denning, and many arguments were also given by the noble Lord, Lord Ogmore, who in his interesting speech made it quite clear with very good reasons that he could not support either of the Amendments on the Order Paper. That being the case, and such convincing reasons having already been given, I do not wish to repeat any of the arguments already made. I merely wish to give one additional argument against the first Amendment on the Order Paper.
My noble and learned friend the Lord Chancellor is already at liberty, should he think fit, and at some time he may think fit, to recommend the promotion of a judge of the county court. He already has that power. But what would be the position of the unfortunate county court judge who was promoted, if this Amendment were carried? He would universally be known as the statutory county court judge promoted to the High Court Bench. The assumption would be—and this he would have to live down—that he had been appointed because it was compulsory to appoint somebody who was a county court judge. In the interests of any possible county court judge who may in future be promoted, I 974 give that as an additional reason for the rejection of the first Amendment.
§ 4.26 p.m.
§ THE LORD CHANCELLOR
May I make two preliminary points? The first is that, in my answer to the debate on the Second Reading, I forgot a subsection and made a conjecture which was wrong. I informed the noble Lord, Lord Silkin, of this, but I desire to express publicly my regret for a lapse of memory. I am only slightly reassured that even Homer can nod, because I think there was a moment when the noble Lord, Lord Silkin, himself, was not too sure who could be appointed stipendiaries. I can tell him—and this will please him, I know—that the salary of a county court judge is £4,400 a year with a corresponding pension, and not £3,000 as he had in mind.
But I want to tell him that I listened with great care, and I noted most particularly the points that he made on his Second Reading speech, of which these Amendments are really the consequence. He made the point clearly about the desirability of members of the lower judiciary having adequate opportunity for promotion to the higher court Bench. I agree that it is important that county court judges, and other members of the lower judiciary, such as stipendiary magistrates, should be considered for appointment to a higher office if they are suitable for promotion, and I can tell your Lordships that I always do consider that when a vacancy occurs. But I think, really, that your Lordships are all agreed—nobody has said anything to the contrary—that it would be quite wrong that any restrictions should be placed on the Lord Chancellor in considering What recommendations he should make to Her Majesty for appointment to the High Court Bench. His duty is to put forward the names of those who, in his opinion, are the best men available for appointment, and nothing could be more prejudicial to the good administration of justice than to require a proportion of the vacancies to be filled in the manner suggested by the Amendment.
I should just like to say to the noble Lord, Lord Silkin, that it is not a question of others—for example, county court 975 judges—not being suitable; it is a question of the candidate who is appointed being the best man. That is the test and I try to fulfil it. But I give the noble Lord the undertaking, without any reservation at all, that the lower judiciary will be considered by me and I will go carefully into this point whenever I have an appointment to make.
Now on the second Amendment, with regard to the appointment of solicitors to the High Court Bench, I think that the arguments of both the noble Lord, Lord Silkin, and the noble and learned Lord, Lord Chorley, fell into two parts. The first was: will vacancies be filled by men of the necessary quality? There has been some discussion about this, and both noble Lords thought that I had been optimistic in saying, when I appointed eight judges a year ago, that I could have found 24 suitable candidates. Well, of course, everyone is entitled to say that my opinion is wrong—it is an occupational risk of being a Minister of the Crown—but all I can say, is that it was not just a view which was expressed before your Lordships; it was a view that had its foundation on a list which I wrote out in my own hand, and it is my view.
I was glad that what was said by Mr. Geoffrey Lawrence, the Chairman of the Bar Council, in his letter to The Times, was referred to by the noble Lord, Lord Silkin. It is a fair comment, of course, that one would expect the Chairman of the Bar Council to express the view that that letter held, but I would remind Lord Silkin of what was said by my noble and learned friend the Lord Chief Justice. He said that there were many members of the Bar still well fitted to become judges, and that there was no risk of the quality of the Bench being diluted by further appointments. He also referred to the fact that in 1861, when the population of England and Wales was approximately 20 million, there were 18 judges in the three Common Law courts, whereas to-day, with a population of approximately 45 million, the number of judges in the Queen's Bench Division was 32, thus indicating that the number of Common Law judges had not kept step with the increase in population. That, raises many points, but I think it is a fair comment on the problem that we are considering.
976 I think that the argument for making solicitors eligible for appointment to the High Court Bench must rest on the second limb: not on the fact that vacancies will not be filled by men of the necessary quality unless this is done, but on the proposition that there is among solicitors a reservoir of experience of a kind which ought to be represented on the Bench. I think the short answer to this argument can be put in the words of the editorial comment in the Solicitors' Journal of November 17 of this year—thatpractice at the Bar is the best preparation for the Bench".The accepted view in this country has always been that what is needed in a judge is experience of a kind which can be gained only by active practice as an advocate in the superior courts.
I agree, broadly, with the qualities that the noble Lord, Lord Silkin, suggested as being necessary. There must be integrity, not only in the narrow sense, but integrity of mind, that refuses to take a short cut in a case by making easy and perhaps doubtful findings of fact; impartiality; a wide knowledge of law; a quick grasp of fact; and (I agree with the noble Lord) a wide experience of human nature. But there are also two other qualities which I think are essential. The first is that the experience of practice must not be a matter extracted from books, but a second nature and feeling in the judge's mind. The other is more difficult to describe, but every lawyer who has practised in courts will understand it. It is the "feel" of a case, the atmosphere, the background and the strength, which again is a second nature which comes from experience of conducting cases in courts.
No doubt many solicitors have wide experience as advocates in the inferior courts and in the various tribunals existing outside the framework of the ordinary courts of law, but it is no criticism of the county courts or the magistrates' courts to say that the work coming before them is, on the whole, very different in character from the work of the High Court. Here, I would respectfully disagree with the noble and learned Lord, Lord Chorley. I have practised in every kind of court. I am not speaking as one who has not had 977 experience of being an advocate in magistrates' courts or in county courts; and I should say that I am not putting it too high when I say that, on the whole, the work is very different in character from that done in the High Court.
Does one not then come to this: that any solicitor who was to be considered for appointment to the Bench would naturally have to be one of the leaders of his profession, just as it is from leading members of the Bar that the Judiciary are now chosen? But the leading members of the solicitors' profession are not usually men with recent, constant experience of court work, still less of advocacy, but are those whose work has lain in quite different fields—as wise advisers in matters of high importance behind the scenes, in regard to estates, companies, commercial matters and the like. I do not think that that is an unfair description of the leading solicitors in this country.
The noble Lord, Lord Meston—I am sorry he is not here—made a brilliant cavalry charge in favour of fusion which delighted us all by its manner but which did not impress very much, certainly myself, by its matter. I think that the two separate branches, as I like to call them, each perform functions which, though complementary to each other and of equal value to the public, are nevertheless quite distinct. Here, the noble Lord, Lord Ogmore, made the point which is important: that there is a difference between an advanced, industrialised and highly commercial society and a society in its earlier stages. I am referring to the first, the advanced, industrialised and highly commercial society. In those countries where there is no formal division between one branch of the profession and the other, there is nevertheless, in practice, a clear division between the trial lawyers, whose work lies mainly in the field of advocacy, and those who confine themselves to non-contentious work and the preparation of cases for trial. In those countries, appointment to the bench in the superior courts is normally confined to those who have had experience of advocacy in those courts.
There is, admittedy, an important exception to this in countries such as the United States, where leading academic lawyers are often appointed to the Bench—and I congratulate the noble 978 and learned Lord, Lord Chorley, for not dragging that point in, because it does not arise on these Amendments, although I can imagine he feels great sympathy with such appointments. But it is traditional for the Bar to approach cases more objectively than is possible for the solicitor, who is in immediate contact with his lay client. This sense of objectivity assists in maintaining the barrister's sense of immediate responsibility to the court before which he is appearing, and he is thus able to act as a bridge between the solicitor and his client, on the one hand, and the wholly impartial judge, on the other. In saying that, I hope no one will misunderstand me for a moment. I do not mean by that to denigrate the high standard of conduct of the solicitors' branch of the profession. It is only the fact that the ability to get the advice of someone who has not been in such close contact is, I think, a valuable thing.
I agree with what has really been the burden of the song of many noble Lords: that one of the reasons for the prestige of the English High Court Bench is that the judges are generally accepted as being the professional superiors of those who practise before them, in experience and standing in the profession as much as in knowledge of the law. They are appointed at a time when they have reached intellectual maturity in the practice of their profession, with, as I have tried to indicate, all that this means. While at the Bar a judge has gained a wide experience in the actual conduct of cases and, in so doing, has had the best opportunity of observing and acquiring the habits and outlook of the Bench. This constant practice enables him to assimilate these habits of mind and behaviour, and thus to pass on in his turn the accumulated judicial sense of generations of English judges. There are things which can be learnt only by precept and example, and the judicial approach is one of them.
I do not want to leave it there, because I think that would be taking a negative view. Here I agree with what was said by the noble Lord, Lord Ogmore, and by my noble and learned friend Lord Denning. While it would not be in the public interest that those whose experience has lain in one branch of the law should be eligible for appointment 979 to posts for which experience in the other branch is the best qualification, it is in the public interest that the existing barriers towards ready interchange between one branch of the profession and the other should be removed, so that a man who has started as a solicitor and finds that his qualities fit him more readily for practice at the Bar should be able to qualify as a barrister more easily than he can do at present.
If your Lordships would bear with me, I should like to continue with a comment by the Solicitors' Journal—I am quoting that publication because I think it is a fair source of quotation for me:We have no doubt that practice at the Bar is the best preparation for the Bench and it is the duty of the whole legal profession, solicitors and teachers as well as barristers, to ensure that all who are likely to make good Judges have the opportunity to practise as barristers without the artificial barriers which now stand in their way. There should be a closer relationship between the two branches of the profession so that it would be easier to transfer from one to the other.…As has been said in this debate, the problem of a common system of education, or, at any rate, a system with parts in common, is one that has received a good deal of consideration in recent years from the Council of Legal Education and the Law Society; and, in my view, it is plainly desirable that further progress should be made in this direction, though, of course, it is entirely a matter for the professional bodies concerned. I was very glad when my noble friend Lord Mancroft introduced the Barristers (Qualification for Office) Act, 1961, which enables a barrister, who before his call to the Bar had been a solicitor, to count the years spent in practice as a solicitor towards his eligibility for any office. The converse case has already been dealt with. I am very glad that, as he had taken what I thought was a very wise step in furthering that Bill, he has supported me to-day; and I am very glad that the noble Lord, Lord Chorley, should have mentioned the name of Mr. Justice Lynskey, who had been a solicitor, was then at the Bar, and became a Silk and then a judge. As he will remember, I spent six years in his Chambers, and learned a very great deal from that opportunity. I think his was the only 980 name that has been mentioned in this debate, and I am very glad that it should be his. I have such happy memories of it, and it was mentioned so honourably by the noble Lord.
These are my views on the general problem. I hope your Lordships do not think that I have infringed unduly upon your Lordships' time by treating it more generally, but on the first point I assure the noble Lord, Lord Silkin, that all he has said will be very carefully considered by me so long as I hold my present office, and I am sure by those who succeed me. On the second point, I would ask him to reconsider it, as Lord Ogmore and Lord Denning really suggested, from the point of view of transferability rather than of making the immediate step.
§ LORD DOUGLAS OF BARLOCH
May I ask the noble and learned Viscount one question arising out of the extremely interesting and very well balanced survey which he has given of this problem? It is on the point of transfer or passing from one branch of the legal profession to the other. I have not looked into this recently, but my recollection is that it used to be the case, at any rate, that it was not possible for a solicitor to transfer to the barristers' branch of the legal profession unless he got himself struck off the Roll of solicitors and ceased to practise for quite a considerable period of time, whereas a barrister could get himself transferred, if he so pleased, to the solicitors' branch of the legal profession without having to sacrifice his means of livelihood for any appreciable period. If there is to be transferability, and therefore the opportunity of advancement and promotion equally for all members of the legal profession, surely that anomaly, if it still exists, ought to be remedied.
§ THE LORD CHANCELLOR
I am sorry to say that I do not carry the Consolidated Regulations in my head, and even if I thought I did, after my experience on Second Reading I should certainly not trust to my memory. But I will look into the point and write to the noble Lord, Lord Douglas of Barloch, about it. I hope he will be content with that.
§ LORD SILKIN
I am very grateful to every noble Lord who has taken part in the debate on these two Amendments. I would say to the noble Lord, Lord Mancroft, and to the noble Lord, Lord Conesford, in particular, that I do not think they appreciated, if I may say so, the spirit in which these Amendments were moved. In this House we are less rigid in our Rules of Order, but, nevertheless, we do try to maintain some rules of order, and when I felt that discussion on this subject was useful, I had to put down an Amendment which had some semblance of being in order, and this was the best I could do. No doubt if I had had the benefit of the advice of the noble Lord, Lord Man-croft, or of the noble Lord, Lord Cones-ford, I might have done better.
But I did not seriously want to fetter the Lord Chancellor's discretion in appointing judges to the High Court. That was not my purpose. I did not really expect him to agree that two out of five should be county court judges, and that was not the spirit in which I moved the Amendment. If the noble Lord had listened he would realise that I never said a single word in advocacy of that particular suggestion. My real point was that county court judges should be considered far more than I thought they had been in the past. In the last eleven years, only one county court judge has been promoted to the High Court, whereas a very large number of persons have been created High Court judges. It did not seem to me as if they had been adequately considered for such promotion. I am glad to have the noble and learned Viscount's assurance that they will be fully considered. In those circumstances, one may expect that in the next eleven years we shall have more than one appointment from the county courts.
On Amendment No. 2, I would let the two noble Lords into a secret. I could not very well suggest that solicitors should be appointed to the county courts, because that is not in the Bill at all. Therefore, in order to get a discussion on the subject I had to suggest what I did not really mean to suggest—namely, that they should be qualified to act as High Court judges. However, what I implied in my speech was that solicitors might be appointed as county 982 court judges, and from that point they would take their chance of being promoted to the High Court. Even that is not within the scope of the Bill and therefore I cannot expect the Committee to accept this Amendment. But I hope that it will be further considered.
The noble and learned Viscount has made the suggestion that, if the two professions were virtually interchangeable, it would be easy for a solicitor to become a barrister. The tendency might be moving in that direction, because there is considerable talk about the examinations being identical for the two professions. Then, if a solicitor had ambitions to go on the Bench, it would be possible for him to change his profession, and if the years during which he was a solicitor counted for qualification, there would be no difficulty. But I think that my noble friend Lord Douglas of Barloch—again I am not going to be dogmatic—was right in saying that there are considerable economic and other difficulties in the way of solicitors becoming barristers, though there are no such difficulties in the way of the reverse taking place. Until solicitors can become barristers, there is in every way an effective bar against what many people consider would be a desirable thing to happen—namely, that solicitors should be eligible not only to become stipendiary magistrates, which is already the case, and which could be more effectively done if it were more generally recognised, but also to become county court judges.
Having ventilated the question, I hope that it will not be allowed to rest here and that we shall see more county court judges on the High Court Bench as time goes on, that we shall see more solicitors as stipendiary magistrates and that in the public interest the two professions may get closer together with a view to the possibility of there being greater interchangeability. That would meet the point I had on the second Amendment. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 agreed to.
§ Clause 3 [Sheriff of Hallamshire]:
§ 4.54 p.m.
§ LORD REA moved in subsection (1) to leave out "Hallamshire" and insert "Hallam". The noble Lord said: 983 I beg to move the Amendment standing in my name on the Marshalled List. After the interesting points we have been discussing in regard to Amendments Nos. 1 and 2, I must confess that this small Amendment is very pedestrian, very straightforward and not extremely important. It does not seem in any way to alter the main terms of the Bill. If your Lordships would be good enough to turn to Clause 3, you will see that the Bill, in the latter part of subsection (1), actually creates a separate county by the name of Hallamshire, and a few lines before that it says clearly that the people who live in the neighbourhoods of Barnsley, Doncaster, Rotherham and Sheffield will no longer apparently be Yorkshiremen. With what effect that will have on the cricket table I am not concerned at the moment, but I suggest that the use of "Hallamshire" for a subdivision of an area of this sort is rather inconvenient by virtue simply of the ending in "shire" and for no other reason at all.
§ It is obvious that, when we have a big area like this, it should be subdivided, and I hope that the noble and learned Viscount the Lord Chancellor will not think I have any doubt that this is a perfectly proper thing to do. But in the case of other counties we have Cambridgeshire and the Isle of Ely, Hampshire and the Isle of Wight, Lincoln divided into Lindsey, Kesteven and Holland, Northamptonshire and the Soke of Peterborough, Suffolk and Sussex divided into East and West divisions, and Yorkshire, as your Lordships know, into the East Riding, West Riding and North Riding. This might be a suitable time to insert a "South Riding" but I do not press that here.
§ To ordinary people like your Lordships and the man in the street it would look as if we had added a new geographical county to the United Kingdom. For a foreign visitor, it would be a geographical and typographical confusion. It would be hardly suitable for a teacher to make children in our primary schools recite the counties of England and say: "But for the purpose of the law relating to sheriffs, the Sheffield Division of the County of York, under the Criminal Justice Administration Act, 1961, is Hallam-shire but not in any other sense."984
§ What would we call the County of "Hallamshire"? I have referred to Bartholomew's Gazetteer, which I think is a reliable book, and both there and in other books of reference it is clearly stated that Hallamshire is an ancient Lordship in the Sheffield Division of West Riding in Yorkshire, mentioned in the Domesday Book as Hallun. Neither Hallam nor Hallamshire is then the ordinary word, but I am sure that to those who live in that district they are interchangeable and one is as good as the other. Therefore, purely for the sake of avoiding another "shire", such as Devonshire, Leicestershire, Gloucestershire and Aberdeenshire, let us cut out Hallamshire in this limited Bill, which is not directed to geography, and have the word "Hallamshire" constituted "Hallam".
Page 2, line 27, leave out "Hallamshire" and insert "Hallam".—(Lord Rea.)
§ THE LORD CHANCELLOR
The noble Lord has moved his Amendment charmingly. I hope that he will bear with me if I give him the results of the most elaborate researches I have made into this intricate problem which he has put before us.
It is true that the Manor of Hallun is mentioned in Domesday Book and that it is not until 1161, that one finds Halumsira and in 1276 Hallumshire. Whatever may have been the precise area designated by "Hallam", the old Manor of Hallun which is in Domesday was situated in what is now Sheffield and was, after the 14th century—the period in which Sheffield cutlery first became sufficiently famous to justify an allusion in Chaucer—quite eclipsed by it in importance. Its name was preserved in the two townships of Nether Hallam and Upper Hallam, which are now comprised in Sheffield and also in the Parliamentary Division of Sheffield called Hallam. On the other hand, Hallamshire seems to have been used to denote an area outside the borough of Sheffield, as well as the borough itself. Thus, while the antiquarian, Joseph Hunter, with whom, I am sure, the noble Lord, Lord Rea, is most familiar, entitled his history and topography of the Parish of Sheffield in 1819, Hallamshire, the Parliamentary Division of Hallamshire, which existed 985 from the Third Reform Act in 1885 (introduced by a Liberal Government, if my history is right) till the First World War, was entirely outside Sheffield, which contained the Hallam Division at the same time. The same can be said of the petty sessional division of Hallamshire which is mentioned in Statutory Instruments as recently as 1955, but is only one of the constituent parts of the proposed new shrieval county.
In sum, the history of these names seems to show that, whereas "Hallan" has been applied to parts of Sheffield, and perhaps at a very early date to ill-defined areas of land outside, "Hallam-shire" has been applied over a number of centuries both to the whole of Sheffield and to a considerable area in the south of the West Riding, of Yorkshire. It is therefore not necessarily accurate to say, as the noble Lord, Lord Rea, does, that Hallam and Hallamshire are synonymous.
The use of the syllable "…shire" at the end of the name, another point dealt with by the noble Lord, is not unusual in the North of England, as, for instance, Bedlingtonshire, Norhamshire and Island-shire in Northumberland, which were formerly detached parts of the county of Durham, and Craikshire in the North Riding, which also was formerly part of Durham. Hexhamshire from ancient times has been the name of an area round Hexham. In Yorkshire, apart from Hallamshire itself, one also find the petty sessional divisions of Howdenshire and Allertonshire.
Moreover—and I ask the noble Lord, who, as we all know in this House, is a well of English undefiled, to note this point—as the shire is being created for the purposes of a new High Sheriff (shire-reeve) the suffix appears to be particularly appropriate. In view of the preliminary words of the clause, to which the noble Lord referred, there is a further risk. As I told your Lordships, my noble friend Lord Scarbrough, who is Lord-Lieutenant of the West Riding, has agreed to the name "Hallamshire". So, from authority as well as history, I consider that I have some reasonable arguments, and perhaps, having heard what has gone into the consideration of this matter, the noble Lord will not press his Amendment this afternoon.
If I may be permitted to surface again, I should like to thank the noble and learned Viscount very much for the great trouble he has obviously gone to in this matter. I think it would be discourteous for me to press the matter further beyond saying that I wish he could have found some other name. I can only say that I give way to the sheer force of argument and beg leave to withdraw the Amendment.
§ Amendment by leave withdrawn.
§ Clause 3 agreed to.
§ Clause 4:
§ County and borough sessions
§ (5) Any functions exercisable before the commencement of this Act by an appeal committee appointed under section seven of the Summary Jurisdiction (Appeals) Act, 1933, shall after the commencement of this Act be exercisable by the court by which the committee was appointed.
§ (6) Arrangements shall be made to secure, so far as practicable, that where a court of quarter sessions for a county other than London deals with a case on appeal from a juvenile court not less than half the justices sitting are justices qualified to sit as members of a juvenile court.
§ LORD GODDARD moved to leave out subsections (5) and (6). The noble and learned Lord said: The object of this Amendment is to remove subsections (5) and (6) of the clause, which deal with the abolition of the appeal committee. In common with most of your Lordships, I welcome this Bill very much; I think it is a most useful measure and will do a great deal of good. But I regret, and regard as a retrograde step, that the appeal committee of quarter sessions is to be abolished. The Streatfeild Committee have raised certain points with regard to the working of the appeal committee and referred to certain difficulties which they feel have arisen from time to time, which could be quite easily cured while keeping the committee in being.
§ The object of the provision in the Act in 1933 was, first of all, to ensure that the most experienced magistrates in the county should sit as the court of appeal. We are dealing, of course, with appeals from magistrates to magistrates. An appeal to quarter sessions is unlike an appeal in the High Count, where an appeal from a judge goes to a Count of Lords Justices, or an appeal from Lords Justices to this House. A magistrate's 987 decision is brought before other magistrates. Therefore, I venture to suggest it is desirable that the Committee which has to deal with the appeals should be, if I may so put it, the élite of the magistracy of the county. During the time I was both judge and Lord Chief Justice I had considerable experience of these appeal committees and their working. It has always seemed to me that they did their work remarkably well, and I have never had any complaint from quarter sessions generally suggesting that the appeal committee should be abolished. I think the object of the Streatfeild Committee's recommendation was that they thought a court sitting should be able to do everything at the same time and that any serious dichotomy is liable to delay things.
§ One of the qualified chairmen of Buckinghamshire supplied me with certain figures of their sittings. They have four quarter sessions a year, as of course they are bound to have; and they have four adjourned sessions in the year. That makes eight meetings of the court of quarter sessions. Then they have no fewer than twelve meetings of the appeal committee. That shows the amount of work which the appeal committee and the county have to do. As this gentleman points out, if the appeal committee is to be done away with, quarter sessions will have to sit a great deal longer and on many more occasions than they do at present, and this will not be at all palatable to what I may call the rank and file of justices who have to come and make up the court.
§ The appeal committees are appointed by quarter sessions (and no one need serve on them unless he wishes to), who take care to see that they are getting the best and most experienced magistrates of the county. One reason why in 1933 it was felt that it would be a good thing to have an appeal committee was to get the most experienced magistrates; and also because experience showed that in certain parts of the country when there was an appeal a large number of magistrates would suddenly arrive, who were quite unknown to the rest, because they never attended to their duties other than to come down and listen to an appeal of one of their friends to see that the conviction was quashed. That is no longer 988 possible, because quarter sessions now sit by a rota, and I think I am right in saying that not more than nine magistrates can sit on the hearing of a case. It would be quite possible with the rota system, especially as at quarter sessions, in a great many places at any rate, the younger magistrates are encouraged to attend and get experience and knowledge of how it works, to find that appeals will be coming before no doubt a qualified chairman, but he may have with him eight quite—I will not say unqualified magistrates, but magistrates who have little or no experience.
I suggest that the points that have been put forward by the Streatfeild Committee could easily be dealt with by some short legislative provision. They say, for instance, that
where the appeal committee sits between sittings of quarter sessions, it has to reconstitute itself as a court of quarter sessions before a person convicted at quarter sessions who has been remanded for inquiries before sentence can be dealt with; this untidy and cumbersome procedure is also adopted where an Appeal Committee has dealt with an offender committed for sentence after summary conviction of an offence committed during a period of probation —
Then they say that an appeal committee cannot deal with him for the offence for which he has been put on probation. But the appeal committee can, nevertheless, take into account the fact that the offence has been committed while he is on probation. That is dealing with prisoners who are remanded for sentence.
§ I should have stated that the appeal committee deal not only with appeals but also with those persons whom petty sessions have sent forward to quarter sessions because they do not think the sentence they can give is sufficient. Therefore, the people are sent to quarter sessions in custody for sentence. Those are the people that the Streatfeild Committee are thinking about in this matter, and though the appeal committee may not have power themselves to sentence for the breach of probation, they can take into account that the man has committed a breach and has been convicted of committing an offence while on probation. If they give him a proper sentence, there will be no necessity to give him a second and separate sentence for the breach of probation.
§ The other matter they mention is that a person convicted at quarter sessions 989 who has been remanded for inquiries cannot be dealt with by the appeal committee. I should think it could very easily be arranged by a short amending clause that it could be dealt with by the appeal committee. As I say, I think it would be a retrograde step if this very useful cornmittee, which has been in existence now for thirty years, disappeared from quarter sessions when it has done its work so well and has ensured that the élite of the magistracy should deal with important matters, as these appeals are. I beg to move.
Page 3, line 31, leave out subsections (5) and (6).—(Lord Goddard.)
I should like to support the Amendment moved by my noble and learned friend. The difficulty there is in getting magistrates to sit in quarter sessions is not generally realised. As the noble and learned Lord has said, nowadays they are appointed by rota. What happens is that on the first day of quarter sessions they are all there; on the second day about half of them are there, and as the week, and sometimes the fortnight, draws on, it becomes extremely difficult to get any magistrate to sit. It has become almost a whole-time job. Therefore, towards the end of the fortnight there is the chairman sitting with, perhaps, a couple of ladies of leisure, who have no great knowledge or experience of judicial matters, and nobody else. I do not say that any great harm is done by this, but it is desirable that these cases should be heard not entirely by the chairman as, in practice, so many cases are to-day, but by a full bench of experienced magistrates. That is what happens now, and that is not what will happen if this clause is carried as it is at present.
§ 5.15 p.m.
§ THE LORD CHANCELLOR
I am grateful to my noble and learned friend Lord Goddard, and to my noble friend Lord Raglan, for the attention they have given to this point. As my noble and learned friend has said, the first subsection which he would leave out carries out a recommendation of the Streatfeild Committee in paragraphs 197 to 201 of their Report. I think Lord Goddard 990 agrees that there were two purposes in setting up an appeal committee in 1933. The first was to ensure that appeals from magistrates' courts should be heard only by experienced justices, the justices having special qualifications for the hearing of appeals, including justices specially qualified for dealing with juvenile cases—and I will return to that again—land, secondly, to limit the number of justices eligible to hear appeals.
The Streatfeild Committee took the view that that was no longer necessary for, as I understand it, these reasons. I think what influenced them was looking at the matter rather the other way round from my noble and learned friend. They said that the dichotomy between the two is inconvenient, because frequently when the sessions is sitting it would be convenient for it to take a committal for sentence at the end of its other business, but it finds itself unable to do so unless it happens to be composed of members of the appeal committee. Similarly, vice versa, if an appeal committee sits between sittings of quarter sessions, it has to reconstitute itself as a court of quarter sessions before a person convicted there and remanded for inquiries before sentence can be dealt with.
One of the main purposes of this Bill is to get rid of what the Streatfeild Committee described—and I agree with them—as the indefensible delays that have taken place up to date in a certain percentage of cases. We thought that what they suggested in the interests of greater flexibility—the merger of quarter sessions and its appeal committee—will ensure that whatever justices are sitting on that day they will be in a position to take any quarter sessions work which is ready for them. On the other point of the experienced justices, I do not like trusting my memory without checking the point, but I should have thought—and my noble and learned friend will tell me if I am wrong—that in 1933 there were certainly far fewer legally qualified chairmen of quarter sessions than there are to-day.
§ THE LORD CHANCELLOR
I think that must be so. We felt that when 991 to-day there are legally qualified chairmen, and legally qualified deputy chairmen, one of them will certainly be available to preside over a court during an appeal and, therefore, he gives a central element of experience. With regard to the other magistrates, these must vary, but my noble and learned friend Lord Goddard and myself have certainly done our utmost to improve the training of magistrates. I am most grateful to my noble and learned friend for the share he has taken in that, and I think we are getting to-day a greater percentage of experienced and keen magistrates. Of course, in the case of committals for sentence, they may not require the presence of a legally qualified justice at all.
On the other point, my noble and learned friend really conceded that since the rule has been introduced—one of the rules made by the Lord Chancellor under the Act of 1949, which laid down that the maximum number of justices sitting in a court of quarter sessions is nine—the second object of the original section has really gone. I do not know that I would have put it quite so harshly as my noble and learned friend, but I am sure he will agree that, from the point of view of difficulty when one had to address perhaps thirty justices on an appeal quarter sessions, it was rather difficult to know, not whether one was carrying the whole audience with one, but at least ensuring that the whole audience understood one's point. But considered the other point, whether quarter sessions when hearing appeals must be presided over by a legally qualified person. I think that that will be so in practically every case and I did not think it was necessary to make the requirement mandatory.
I want to say a word about the other subsection which my noble and learned friend wants to leave out by this Amendment. Subsection (6) provides that at the hearing of appeals from juvenile courts by county quarter sessions, not less than half the members of the court must, where practicable, be justices qualified to sit as members of a juvenile court. This carries out, in part, a recommendation of the Committee on Children and Young Persons, the Ingleby Committee, whose Report was issued in October, and this recommenda- 992 tion was endorsed by the Streatfeild Committee in paragraph 201 of their Report. Section 8 of the Summary Jurisdiction Appeals Act, 1933, as amended by Section 18 of the Criminal Justices Administration Act, 1956, provides that appeals to London Sessions from juvenile courts should be heard by a court consisting of the paid chairman or deputy chairman and justices of whom half are drawn from a panel of juvenile court justices nominated from among the justices themselves. The Streatfeild Committee recommended that similar arrangements to those at London Sessions should, so far as is practicable, be extended to county quarter sessions outside London. The fact that we want half the justices hearing an appeal from the juvenile court to be justices who are in the position of juvenile court justices is, I think, an extremely important point. I would not alter it.
I should like to protest against this extraordinary notion that a person of 64 is more sympathetic to children than is a person of 66. I think it is quite ridiculous.
§ LORD CHORLEY
May I just say that in the courts of quarter sessions with not so much business the present arrangement leads to a good deal of waste of time? I held an adjourned session of my own quarter sessions last week and there was also a case for the appeal committee, which meant that two groups of magistrates had to be summoned. I think some had to come from the northern part of the county, which entails a journey not always easy to make in the winter, but fortunately the weather was good. Undoubtedly from our point of view it would lead to a good deal of saving of time if the noble and learned Lord's proposals were put into effect.
§ VISCOUNT BRIDGEMAN
I would venture to agree with respect, with what the noble Lord, Lord Chorley, has just said.
§ LORD GODDARD
May I say that, so far as the juvenile question is concerned, perhaps there was no necessity for me to move to leave out subsection (6), but, as it dealt with appeals, I thought that if one went the other would go. If the noble and learned Viscount wished to save subsection (5) from going 993 it could have been dealt with on Report: the question of the juvenile court could have been put right on Report. I have no objection, of course, if some of the magistrates dealing with juveniles should be magistrates who can sit in juvenile courts. I think that is quite a reasonable thing. I cannot help thinking, although the noble Lord, Lord Chorley, has given an illustration from his county, that in most counties when an appeal committee sit they can sit at just about the same time as a full court is sitting or at a convenient time in between its sittings. As I have said, in the County of Buckinghamshire there are twelve sittings a year of these appeal committees.
I do not think that any time need really be wasted or that persons need be kept any longer in prison than they are at the present time. I think there is something to be said, if I may say so, for an abolition of the law under which the persons who are sent forward to quarter sessions for sentence have to go to the appeal committee. It might be better that those cases should go to the full court. The thing I am more concerned about is that I think it is important that appeals should go to an appeal committee of experienced magistrates. Of course, I know quite well that quarter sessions are now presided over by qualified chairmen and, generally, qualified deputy chairmen; but, at the same time, when they are sitting with eight other magistrates their vote is only as good as the other magistrates' and they are sometimes overruled by the others. If the Lord Chancellor takes the view that nothing can be done, I do not suppose there is any hope for this Amendment, but I feel very strongly that it is an unfortunate step to abolish a committee which so far, I believe, has done very useful work and has given general satisfaction.
§ On Question, Amendment negatived.
§ Clause 4 agreed to.
§ Clause 5 agreed to.
§ THE LORD CHANCELLOR
This Amendment transfers from the Home Secretary to the Lord Chancellor the responsibility under Section 42 of the Local Government Act, 1888, for regulating the arrangements for sittings of quarter sessions for the County of Lon- 994 don. The transfer is desirable because, under subsection (1) of Clause 4 the Lord Chancellor will have a general power to regulate the sittings of quarter sessions for the rest of the country, and under subsection (3) will have to make rules dealing with certain administrative arrangements for quarter sessions. It would be anomalous to leave the Home Secretary with separate responsibility for London only. I beg to move.
After Clause 5, insert the following new clause—
§ London sessions
§ ".The functions conferred on the Secretary of State by subsection (6) and (7) of section forty-two of the Local Government Act, 1888 (which relate to the regulation of quarter sessions for the county of London) shall after the commencement of this Act be exercisable by the Lord Chancellor; and the references in those subsections to a Secretary of State shall he construed accordingly."—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 6 [Appointment of deputy recorder and assistant recorders]:
LORD GODDARD moved after subsection (3) to insert:
() If a borough with a population of sixty-five thousand or more has no separate commission of the peace or no separate court of quarter sessions, the Lord Chancellor may require the council of the borough to present a petition to Her Majesty for the grant of a separate commission of the peace and a separate court of quarter sessions for the said borough or if it already has a separate commission of the peace, for the grant of a separate court of quarter sessions; and sections one hundred and sixty and one hundred and sixty-two of the Municipal Corporations Act, 1882, shall apply to such petitions:
Provided that if at the expiration of three months from such requirement being made no such petition has been presented the Lord Chancellor may himself present one to Her Majesty.
§ The noble and learned Lord said: The clause that I am asking the Committee to accept as an addition to the Bill is designed to enable the Lord Chancellor, in cases where he thinks it proper to do so, to see that very large boroughs which at present have no recorder and therefore no quarter sessions should apply for and set up their own court of quarter sessions, and, if they do not, he should have the power to take the necessary steps towards it. 995 Your Lordships will remember that in 1949, under the Justices of the Peace Act, many commissions of the peace were taken away from small boroughs and also many courts of quarter sessions were taken away from small boroughs; and that was all to the good. But, at the same time, a good many large boroughs in this country have no recorder and therefore the whole of their cases have to go to the county quarter sessions or, if under convenient court procedure, to some other borough. The costs have always to fall upon the county. The noble Lord, Lord Silkin, in the speech he made on Second Reading, pointed out some of the anomalies which take place with regard to costs in criminal cases, and I dare say at some future date a question will be raised as to whether all those costs ought not to fall upon the Exchequer. But at the present time there is no doubt a reluctance on the part of some of these large boroughs to apply, as they can do under the Municipal Corporations Act, for the appointment of a recorder. By the way, there is a small drafting mistake in my Amendment: it should refer to Section 156 instead of 160. Those boroughs fail to petition for the appointment of a recorder because they prefer that they should not have the expense of maintaining a court of quarter sessions, but that it should fall upon the counties.
§ Let me give the Committee two or three instances of the great centres of population which have no recorders. I take first of all Ilford. Ilford is an enormously big place, and if you included Walthamstow in it—but I think they are separate—I do not know what size it would be. Ilford is returned as having a population of 178,000. When offences are committed there which lead to committal for trial the witnesses have to go to Chelmsford; everything has to be done at Chelmsford. I dare say there are reasons. The County of Essex no doubt gets a large proportion of its rates from Ilford. But surely it is right if citizens in Ilford commit offences that they should be dealt with at Ilford. Close by is the borough of Romford, a very ancient borough, which has never had a recorder, although it has a population at the present time of 113,000. Let me illustrate another place of which I can speak quite confidently, because in 996 my younger days and for many years I practised there. I was a member of the Wiltshire quarter sessions and practised in Wiltshire. Swindon started, of course, by being a small country market town. By the time I was practising there it had very largely increased in population because of the presence of the Great Western Railway works. But even in those days—and I think my noble and learned friend Lord Tucker, who also practised there in those days, would bear me out—Swindon always used to produce at least half the work for the Wiltshire quarter sessions. They did not have to pay the costs; the county had to pay the costs. Now Swindon has become one of the overspill towns for London and the population at the present time is 83,000.
§ Wiltshire quarter sessions are now to be held on two occasions at Salisbury and on two occasions at Devizes. You cannot travel from Swindon to Salisbury by train: it would be a very good exercise for anybody who likes Bradshaw's to see whether he could work it out. But I would say it would take all day and he would never be there in time to be present when the courts opened. Wiltshire is an awkward county in which to travel because Salisbury Plain divides the north from the south in a remarkable way. All the prisoners and witnesses and people of that sort have to go from Swindon to Salisbury. They must go by road and the distance is about 45 miles. You cannot travel 45 miles for nothing and the expense is considerable. If people are kept there for two days, there again it is a hardship and very expensive. Twice a year cases can be heard at Devizes. Devizes is one of the old county capitals. It has an Assize court, and the Assizes are held alternately at Salisbury and Devizes. Devizes is a good deal nearer to Swindon than Salisbury; it is about 25 miles away—far enough. But Devizes keeps a recorder, has always had a recorder and Devizes is a town with a population of 8,000. If, under the convenient court procedure, as it is called, people are committed to the sessions at Devizes, a small town of 8,000 inhabitants is having to try cases which come from a town of 83,000.
§ Another curious anomaly is Slough. Most of the crime in the county of Buckinghamshire comes from Slough or 997 thereabouts, which has 75,000 inhabitants but no recorder. I am not sure that the noble Lord, Lord Silkin, did not mention Bedford; he certainly mentioned Northampton. In Bedford at the present time there is one recorder. Luton is about double the size of Bedford and has a population of 120,000 but no recorder. If the Lord Chancellor had power to stir up these people and say, "You must apply for a recorder, or else if you do not I will apply for you", it would mean that several more courts would be set up and it would enormously increase the speed with which cases could be heard. Because nowadays the courts of quarter sessions are directed to arrange among themselves so that there will be at intervals, but not long intervals, different courts sitting; so if you find that a long interval will take place before the county sessions, you look about and find when a borough sessions will be sitting. The more boroughs, therefore, that have recorders the better, although you do not want these very small towns to have quarter sessions, because it is not desirable. The jurors would be taken from a very small body. I would ask the noble and learned Viscount in charge of this Bill to consider whether something should not be done in this respect.
§ The Municipal Corporations Act provides that Her Majesty may, on the petition of a local council, grant either a separate commission of the peace or a court of quarter sessions, or if they already have a separate commission of the peace under another section they may apply for the grant of quarter sessions. I have given only one or two illustrations from the south of England because I know it better than the north. There must be a good many other towns in the same position. But those towns which have these very big populations ought to try their own cases; they ought to be tried by jurors from that particular area, and jurors in other places ought not to have the task of trying cases from towns with which they have no concern. The expenses ought to be expenses of the boroughs and not of the counties. But what I do emphasise is that I am sure that if these big boroughs could be told, "You must have your own recorders and deal with your own crime", it would speed up the trial of crime as much as 998 anything else could do; and therefore I beg to move.
Page 4, line 18, at end insert the said new subsection.—(Lord Goddard.)
§ LORD SILKIN
I should like most strongly to support the noble and learned Lord, Lord Goddard, in this Amendment. If the object of this Bill is, as I accept that it is, to speed up the administration of justice and particularly to speed up the period from the time of committal to the time of trial, then it is essential—at any rate, it is advantageous—that there should be more places where trials can be heard. At the present time large centres of population are being created. The noble and learned Viscount will be aware that in England and Wales, for instance, there are fifteen new towns already, and a certain number of expanded towns which are about to develop. That, I imagine, is not the end of the story; there will be further new towns. So far none of those has a commission at all.
The noble and learned Lord, Lord Goddard, has given a number of examples. One might say that Ilford and Romford are part of the Metropolis and almost suburban. But if you go further out into Essex, in which Ilford and Romford are, you have the new town of Basildon, which already has a population of over 60,000 and which is designed eventually to have a population of 120,000. There is no obligation on their part at all to set up a separate commission. I do not know whether they will or not. But this Amendment is based on the assumption that they do not regard it as necessary and that they will take no action. There is the town of Harlow which, I imagine, has a population, at this point, of nearly 60,000, and is growing. In Sussex, you have Crawley, where the same thing applies. Crawley is rapidly approaching the 60,000 mark. I think it is designed for an ultimate population of 80,000. If there is any known means of limiting the population to any particular figure I should like to know about it. But one can be quite certain that before long all the towns I have mentioned will be towns with a population of the order of over 100,000, with no commission. The same applies to Cwmbran in South Wales. So I think that we should take 999 this most essential step to ensure that the number of commissions is appropriate.
It is, of course, discretionary on the Lord Chancellor as Ito whether, in any particular case, it is essential that he should take action, and again, it depends upon action not being taken by the local authority or the borough itself. But in the case of a borough that is not prepared to take the necessary steps, where the Lord Chancellor is of the opinion that it is desirable that it should set up a commission, then it seems to me that there ought to be power to secure that such a commission is set up. Therefore, unless the noble and learned Viscount sees any insuperable objection to this Amendment, I hope that it will be accepted, at least in spirit, and that something will be done about it.
§ LORD GODDARD
Before my noble and learned friend replies, may I just say that the reason why I propose in my suggested Amendment that this should apply to a borough with a population of 65,000 is that the Justice of the Peace Act provides that only a borough of 65,000 can have a new grant of a quarter sessions. That is why I take the figure of 65.000.
In my county borough of Newport, which has a population of 110,000 and so comes within the ambit of this Amendment, we have a commission of the peace but no quarter sessions. This causes no great inconvenience, as the quarter sessions are held in Newport and the borough of Newport pays for the court, although not for the chairman and deputy-chairman.
There is one matter to which I should like to draw the attention of the noble and learned Viscount—namely, that the magistrates of the borough take no part in the work of quarter sessions, but both they and the county magistrates think that they should take their share of that. I do not know whether something of that kind could appropriately be dealt with in this Bill. I think it is a matter to which the noble and learned Viscount might give consideration, to the satisfaction of all who are interested.
§ THE LORD CHANCELLOR
To deal with the slightly different point of my 1000 noble friend Lord Raglan, I will certainly look into that point. Curiously enough, I was addressing a meeting of magistrates on Monday afternoon and the same point was put to me then; so it is in my mind, and now that it is reinforced by my noble friend I will certainly look into it. I should like to look into the whole of this Amendment. I hope that your Lordships will not think I am remiss in my reply, but the Amendment was put down only a short time ago. T6 noble Lord, Lord Silkin, will appreciate that it would be a novel proposition for a member of the Executive, even if he be the Lord Chancellor, to require a local authority to petition for a separate court of quarter sessions against their will—
§ THE LORD CHANCELLOR
—and to do it for them if they refused. Therefore, as a matter of the comity of government, which we try to pursue between national and local government, I hope that my noble and learned friend will give me time to consult—
§ LORD GODDARD
I should be only too glad, if the noble and learned Viscount will consider it before Report stage, not to press the Amendment now.
§ THE LORD CHANCELLOR
That was what I was going to suggest to my noble and learned friend. I should like to do that.
§ LORD GODDARD
I agree that it is a considerable matter, and if the Government will consider it between now and Report, of course I will not press the Amendment.
§ THE LORD CHANCELLOR
I am most grateful. I think everyone will appreciate that, because it is the sort of thing that one must discuss with the Association of Municipal Corporations, out of courtesy and with the hope of getting it done. But I am well seized of the point. I am told that in most cases the boroughs are ready to apply for a court of quarter sessions, if it is indicated to them that they should. In fact, I received a note as my noble and learned friend was speaking, saying that it is believed that Swindon are ready to make a petition, but I shall have to confirm that and see what it is based on.
1001 With regard to the others, there is some difficulty, I think, in one case. I do not want to mention it in the Committee because there is some difference of opinion as to whether the place in question should become a county borough. Without going into a long discussion, I should like to take up this point with my right honourable friend and, together with him, have the necessary consultations and see what we can do. I should like Lord Goddard to know that on another and important part of the Bill we have asked the boroughs to accept an entirely new scheme of remuneration for the recorders and deputy and assistant recorders. That is a matter in which they and their association have shown themselves co-operative, and I think have enabled us to introduce a useful reform into the Bill. Therefore, I am most anxious that we should not reply to their co-operation with what they may think was rather rough treatment, without having consulted them. So I will have that consultation.
I am told that a borough without a quarter sessions does not escape paying for the administration of justice, because it will have to contribute to the costs of county quarter sessions. But that is only an amelioration of the position which my noble and learned friend has put; that really depends on having another court in which to deal with cases quickly. I am alive to that, and I will do that. I will write to the noble and learned Lord before the Report stage to let him know what progress I have made.
§ LORD SILKIN
Before the noble and learned Viscount sits down, might I ask him whether or not it is the case that, if a borough decides to set up a court, it would have to pay for it itself; it would not be a charge on the county?
§ THE LORD CHANCELLOR
If my noble friend will withdraw it on my undertaking to consider it before Report, and to let him know before the 1002 Report stage what we intend to do, he can put it down again if necessary.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ Clauses 7 to 11 agreed to.
§ Clause 12 [Committal to a more convenient court]:
§ 5.51 p.m.
LORD SILKIN moved after subsection (3) to insert:
(4) Where a magistrates' court has committed a person to assizes or quarter sessions it shall be the duty of the clerk to the magistrates' court to notify as soon as may be after such committal the appropriate probation officer of such assizes or quarter sessions as the case may be and at the same time to give to the probation officer such particulars as may be available as to the person, the offence and any other relevant information in his possession.
§ The noble Lord said: I beg to move the Amendment standing in my name. I think I can put this point very briefly. The object of this Bill, as we are always saying, is to reduce the period of time between committal and the date of the trial. In a number of cases after conviction sentence is postponed in order that inquiries, which we all agree are very desirable, may take place, because in these days the punishment is not merely related to the offence itself, but is also related to many other considerations which ought to be in the possession of the person imposing the sentences. It is therefore of the utmost importance that these inquiries should take place at the earliest possible time. The Streatfeild Committee, in the second part of their Report, recommended that the appropriate probation officer should be informed of the committal as soon as the committal had taken place, and that he should then have the fullest possible time available to make such inquiries as he thought the court would desire, in order that they might be placed fully in possession of the relevant facts.
This Amendment is designed for that purpose. It places upon the clerk of the court before whom the person is committed an obligation to notify the relevant probation officer as soon as he possibly can after committal, so that the probation officer will have time to make inquiries. It follows, so far as I could
draft it, the recommendation in paragraph 371 of the Streatfeild Report, which says that:
In order that our proposals for pre-trial inquiries may work smoothly, it is essential that the probation service should have prompt notice of all committals for trial or sentence. In our view the clerk to the justices should be responsible for seeing that the liaison probation officer at the superior court is notified".
Those are the terms of the Amendment. This is merely an implementation of paragraph 371. It is put in the Amendment in a mandatory form. It is a requirement that the clerk to the magistrates should do this in all cases, and I hope and believe that it is not too burdensome an obligation to put on him. Indeed, it is his duty to do it, and, if he does not do it, then I should have thought he was being remiss in his duties.
§ The noble and learned Viscount may say that it can be done in other ways apart from making it statutory. He may say to me that there will be a direction of some sort given that it will be done administratively and not at the discretion of the court, but will be a definite obligation on the part of the clerk to notify the probation officer. I am not very particular as to whether it is done in the form of a clause in the Bill or whether there is a definite obligation imposed upon the clerk by some other means. The essential thing is that there should be this definite obligation on the part of the clerk of the court. For those reasons I beg to move.
Page 6, line 31, at end insert the said new subsection.—(Lord Salim)
I hope that the noble and learned Viscount will not accept this Amendment. All those of us who have had anything to do with the probation service know that it is very difficult to get properly qualified persons to serve as probation officers, and that in many counties the probation service is very short, the lists of probation officers are much overloaded, and they have in general great difficulty in getting through their work. It is, of course, the fact that at Assizes and at quarter sessions people are sometimes put on probation, but the proportion of persons so put on probation is very small. I am afraid that, if this Amendment were carried, probation officers would have to spend a great part of their time investigating the 1004 antecedents of murderers, safe blowers, professional burglars and people like that, instead of doing what in my judgment is their proper work and dealing with the persons who are committed to their charge and whom it is their duty to look after and if possible to reform.
§ LORD CHORLEY
I suggest that the answer to the noble Lord who has just resumed his seat is that the probation service should be improved. Indeed, it is essential that it shall be improved if the recommendations of the Streatfeild Committee are to be carried through, and I thought we all agreed that they were most valuable. I mentioned the adjourned sessions held last week. In one or two of the cases which we had for sentence, a report from a probation officer on those men would have been of the greatest value to the magistrates in coming to a decision as to what punishment to award. All that we had was a bald report from the Prison Commission saying that a particular man was not regarded as suitable for a particular type of punishment, or something of that kind. That is no doubt useful up to a point, but it is not the sort of constructive report that a probation officer can make. I feel that this is a most important aspect of the Report of the Streatfeild Committee and that the Home Secretary—even if there is a financial pause going on—must make arrangements to have the probation system put into a state in which it can carry through a social duty of this kind, which is of the greatest importance in the present state of penal discipline.
§ THE LORD CHANCELLOR
On the question which this has thrown up, about the general position of probation officers, I should like to assure both my noble friend Lord Raglan and the noble and learned Lord, Lord Chorley, that this is a subject which we have very much in mind. They will remember that when we were dealing with the Criminal Justice Bill we had another potential mass of work on after-care, and I am certainly very conscious of the burden placed on probation officers at the moment, as well as the need for increasing the service. I think anyone who is interested in penal treatment must take the same view. Therefore, I do not take exception to the object which this Amendment seeks to secure.
1005 If I may say so, I think there might be some difficulties as to the way it is framed, because it is put into the clause on convenient courts, and I think the noble Lord, Lord Silkin, would want it to apply to all courts. The noble Lord has also used the phrase "appropriate probation officer" which seems to be a very good one, although I think that the man in question is, in fact, known administratively as the probation liaison officer. But those are minor points. The point is that, while I invited the noble Lord to put down anything that he thought could be dealt with by legislation—and, speaking quite frankly, I must concede that this is a point which is not subject to the general difficulty I raised: that I did not want statutory provisions that might limit flexibility—and while sympathising with the object, it remains our view that it is unnecessary to include provisions on these essentially administrative matters.
I can tell the noble Lord, as he has asked me to, that the Government already have it in mind to cover this particular point by administrative arrangements; but I should like to go further than that. because I do not want your Lordships to think that I am stalling for the sake of stalling. What I should like to consider before the Report stage—and I will write to the noble Lord about it—is whether (as I rather think at the moment, though I should like to go into it again) the proper way to do this would be by making a magistrates' court rule under Section 15 of the Justices of the Peace Act. That, of course, would provide the statutory, obligation. I will consider it with great pleasure, and I will let the noble Lord know before the Report stage.
§ LORD SILKIN
I am much obliged for that reply, and in the circumstances I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ Clause 13 [Adjournment after conviction and resumption by different or differently composed court]:
§ 6.2 p.m.
§ THE LORD CHANCELLOR moved in subsection (2) to leave out all words after "preceding subsection". The noble and learned Viscount said: With the leave of the Committee, I will discuss Amend- 1006 ments Nos. 6 and 7 together, though, of course, the Lord Chairman will put them as he thinks fit. The effect of these two Amendments is to remove the second part of subsection (2) of Clause 13 into a separate subsection, following subsection (3). As a result, it will apply to the two situations dealt with in subsections (1) and (3) instead of, as at present, only to the first of those situations. I am perfectly prepared to explain it at length if your Lordships desire, but I think that that shows quite clearly what we are doing. I beg to move.
Page 6, line 45, leave out from beginning to end of line 5 on page 7.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 7, line 12, at end insert—
("() A court of quarter sessions may resume a case in pursuance of the foregoing provisions of this section nothwithstanding that the offence under consideration is one which is triable by such a court only under section two of the Administration of Justice (Miscellaneous Provisions) Act, 1938 (which relates to courts with legally qualified chairmen) and that the court is not then presided over as mentioned in that section.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 13, as amended, agreed to.
§ Clause 14 agreed to.
§ LORD CHORLEY moved, after Clause 14 to insert the following new clause:
§ Unfitness to plead
§ ".—(1) Where it appears to the court that a person charged on an indictment for any criminal offence is suffering from some mental disorder or other affliction so as to be unable to plead to the indictment or otherwise unfit to stand trial, the court may, on application made in accordance with the following provisions of this section, direct that the issue of such person's ability to plead or his fitness to stand trial shall he determined by the jury either at the conclusion of the case for the prosecution, or at the conclusion of the evidence upon the trial of such person for the offence with which he is charged.
§ (2) An application for a direction under the last foregoing subsection may be made by the person charged, or his legal representative, if there is evidence tending to show that such person is not guilty of the offence charged in the indictment.
§ (3) An application under subsection (2) of this section shall be supported by the sworn affidavit of any witness who is to be called by the defence.
§ (4) In the absence of an application for a direction under this section, or if the court 1007 thinks that there is no reasonable ground for making such direction, the issue of a person's ability to plead or his fitness to stand trial shall be determined by a jury impanelled for that purpose before evidence is given in respect of the offence charged in the indictment:
§ Provided that nothing in this section shall prejudice the powers of the judge to exercise any discretion vested in him by any other enactment or rule or law with regard to the stage at which such issue shall be determined."
§ The noble Lord said: This is the first of a group of Amendments all of which are concerned with the procedure in criminal courts in cases where insanity is involved. I am sorry that it will not be possible for me to explain them in a very few words. I must ask your Lordships' forbearance for a few minutes. Of course, they lie a little apart from the main purpose of this Bill, and I shall not be altogether surprised if the noble and learned Viscount, the Lord Chancellor, objects to them on that particular ground. I had hoped to say something about them on Second Reading, because this is a little area of the criminal law which I think stands very much in need of some spring cleaning; but as those of your Lordships who were here will remember, the list of speakers collapsed and the noble and learned Viscount was already replying to the discussion as I entered the House from an earlier engagement which detained me. As I was deprived of the advantage of getting the noble and learned Viscount's opinion on this quite important subject, the best plan seemed to be to put down Amendments on the points which are involved, which I proceeded to do. So perhaps we can get the position made clear, or at any rate discussed.
§ These Amendments really fall into groups, of which the first consisting of three clauses is designed to tidy up and, indeed, to clarify the procedure to be followed when, as does happen not infrequently, the issue of an accused person's fitness to plead or fitness to stand his trial is raised, and to give him a right of appeal against an order detaining him without any trial of the actual issue as to whether he did, in fact, commit the offence which is charged against him. As your Lordships are aware, the main controversy among lawyers on insanity in connection with criminal offences has been waged chiefly round the famous McNaghten rules, 1008 which are concerned, of course, with the issue of responsibility for the criminal conduct itself. The question as to whether at the time of the trial a particular prisoner who is suffering from a mental disease is fit to be tried or not fit to be tried is, of course, quite a different one. There is a well recognised procedure for dealing with a situation of this kind, but it is perhaps not as certain as is desirable on a point in the criminal law which is of some importance. Also there is a great deal of controversy going on as to whether what might be called the accepted procedure is altogether a fair one.
§ The point, quite shortly, is this: if it is decided at the opening of proceedings on a criminal trial that the man is, in fact, not fit to be tried, then the issue of whether he actually committed the act for which he is indicted will never be tried at all—or at any rate will not be tried on that particular occasion; there is a possibility that it might be tried later if he recovers. But the prisoner's advisers may feel—and indeed prisoners' advisers have felt from time to time—that the prosecution's case is, on the facts, not as strong as it might be and that it ought to be contested. The question of fitness for trial is usually raised, however, by the prosecution itself. Indeed, it is considered by some people that it is the duty of the prosecution in a proper case to do so. And they will naturally do it at the opening of the trial—that is the usual procedure which is followed. By doing so, of course, they may effectively deprive the prisoner of a finding that he never did the act which is alleged against him in the indictment. Therefore it is considered by some of us that the advisers ought to have the opportunity to require that the issue of his fitness to plead should be postponed until the end of the prosecution's case, by which time it may have been possible for the learned counsel defending the prisoner to have so shaken the prosecution's case that he may perhaps persuade the judge that there is no case to answer.
§ It is true that this happened in one case—and I am sorry that the noble and learned Lord, Lord Devlin, who knows so much more about these matters than I do, has left the Chamber, because I hoped for his assistance, particularly as he was himself, I think, the judge who 1009 ruled that it might be possible, at any rate in some cases, that this matter could be kept until the end of the prosecution's case. It is only fair to say, however, that the weight of authority is against that view, and it seems rather difficult, in the light of Section 2 of the Criminal Lunatics Act, 1800, to say that that is, at any rate, normally a possible line of procedure.
§ I do not wish to trouble your Lordships with the technicalities of this problem and with the various cases which are in point. I have handed a list of the more important ones to the noble and learned Viscount, and I hope he will feel that there is an important case here to be dealt with. Obviously, the disadvantages of the procedure which is usually followed at the present time are numerous. As I said a minute ago, the accused man might be tried at a later stage if he regains his sanity. This may not happen often, but it is a possibility, as was pointed out by the Royal Corn-mission on Capital Punishment. If he is tried later, it may be very difficult, or indeed impossible, for him to obtain the witnesses who would have been available on the earlier occasion. The prosecution would have the advantage of having the depositions, and advantages in other ways.
§ Again, the law might sanction the detention of an innocent man if he is mentally ill. The feeling of having been found guilty without having actually been tried on the particular issue involved might, I am sure your Lordships will agree, be a very serious obstacle to his making a recovery. A man of this kind is not normally so much out of his mind that he is not very acutely conscious of matters of this nature. Again, there are dangers from the point of view of the public themselves. The police might drop their inquiries, after the man was ordered to be detained because of his insanity, on the assumption that he had actually committed the crime, while in fact it had been committed by somebody else, and if the investigations had gone on that fact would have been discovered. Also, as the law stands at the present time, there is no appeal from the finding that the accused is unfit to plead or to stand his trial; and in the normal case, at any rate, a writ of habeas corpus will not be available. So there are a number of 1010 obvious disadvantages in the accepted procedure, and therefore we feel it is important that this occasion should be taken to put them right.
§ The later subsections to Clause 1 are really just concerned with the practical methods by which this matter can be carried out, and also, up to a point, with putting the existing, rather vague Common Law into a clearer state and making it statutory, so that there will not be these difficulties in future. Before actually moving this Amendment, I think I ought to express my thanks to colleagues in the Law Department of the University of London, who are very interested in these problems, who have brought this matter to my attention, and who have helped me with the drafting of the Amendments. My Lords, I beg to move.
After Clause 14, insert the said new clause.—(Lard Charley.)
§ 6.14 p.m.
§ THE LORD CHANCELLOR
I think it would be convenient if I covered in my speech the general field of the noble and learned Lord's Amendments. I think he may get some satisfaction out of that, and, of course, he can speak again as often as he desires. On the question of unfitness to plead, I think the suggestions raise a very difficult point which warrants careful consideration. May I say at once to the noble and learned Lord how grateful I am for the notes which, of course, have saved a great deal of trouble in finding the authorities and express the intent with which the Amendment is moved.
I think the gist of the difficulty is that one is trying, on the one hand, to harmonise the concept of trying a person who may not be in a position to understand what is going on; on the other hand, the other difficulty, as the noble and learned Lord has emphasised, is that that person who is held, by a verdict of a jury, not to understand what is going on, who has been committed for trial and then ordered to be confined under the procedure, remains without his name being cleared. That is really the trouble we are in, and I find it a most difficult problem to solve.
If I might take it, not in any niggling spirit—I think the noble and learned 1011 Lord, Lord Chorley, knows me well enough by now to know that I do not approach Amendments on serious points of law in a niggling spirit, trying to make debating points—just to illustrate the difficulty, I would point out that subsection (1) of the noble Lord's first Amendment contemplates that the issue of fitness to plead may be determined by the jury either at the conclusion of the case for the prosecution or at the conclusion of the evidence. It is not clear whether it contemplates the giving of a verdict on the issue of guilt or innocence. I really do not see—and I hope that, if I have not appreciated the whole position, the noble and learned Lord will tell me—how you could possibly take a verdict on the issue of guilt or innocence, and then have a subsequent verdict that the man was not fit to plead, and therefore had been convicted in the absence of his appreciating what was going on. However, I realise what the noble Lord, Lord Chorley, had in mind.
The attraction is this. Unfitness to plead does not often arise in a commercial fraud case, but that is the simplest for my illustration. Take a case of alleged commercial fraud, where the prosecution have failed to close a gap in the evidence. We have all been in that position, and have eventually made submissions and the case has broken down. Another case contemplated by the noble Lord is this. He says that under his procedure it would be possible to put in an affidavit and ask the judge to postpone the taking of the verdict on fitness to plead till afterwards. One case the noble and learned Lord had in mind was where there was a witness to an alibi, and it would be possible to say, "I have a witness to an alibi, and I am submitting that if the jury hear evidence now on the alibi, they will not convict." But the trouble, as we all know from bitter experience, is that alibis, extremely good on paper, break down really like papier mâché in court. We have all had that experience. Therefore, if we leave guilt or innocence to the jury, it might reach a verdict of guilty and then deal with whether the accused is fit to plead shortly afterwards. I do not see how we could have that.
1012 We really must do some more thinking on this. I am not tying the noble and learned Lord to the requirement of having an affidavit on this, but we have to consider the procedure again. The noble and learned Lord may well put to me that some amendment of the law is necessary to resolve doubt—because the noble and learned Lord has one case on this side and there are two cases on the other; there is the authority of my noble and learned friend Lord Devlin the other way, and therefore the balance of the authority is in favour of the old procedure—and to prevent an innocent person from being dealt with on merely a prima facie case. On the other hand, no conviction is recorded. The order is that a person should be detained until Her Majesty's pleasure be known, under Section 71 of the Act. It is true that, if he recovers, he can be brought to trial; and there are cases where this has been done, though it is not frequent.
Although one can sympathise with the object of the proposer of the new clause, he does not appear to have succeeded in reconciling the inevitable conflict between his desire to retain the protection conferred on those so affected by the provision that an accused person who is unfit to plead should not be tried, and his second desire to ensure that a criminal charge should be pronounced upon by a court and finally disposed of. I am not saying that it is not possible to reconcile these things, but I am saying that it should receive further study. I should like to assure the noble and learned Lord that this will be considered by the Home Secretary, and I shall be very happy to help if my assistance is asked for.
The second Amendment gives the court power to make an order under Section 71 of the Mental Health Act if, under the proposals in the preceding section, the jury have found that the accused is unfit to plead or to stand trial. The proviso to this clause limits the power of the court to make such an order where the accusedis not found guilty of the offence charged".Again I have some difficulty about the significance of this phrase. It is not quite clear, although it presumably contemplates a situation falling short of a verdict of not guilty. As I say, it is hard to contemplate a person being 1013 found both guilty and unfit to plead. If the intention of the clause—and we should have to look at the drafting—is that a person found unfit to plead may not be ordered to be detained during Her Majesty's pleasure unless he is expressly found guilty or the conditions in the proviso are satisfied—that is, that the court is satisfied that to make such an order is in the interests of the accused person's health or safety or is necessary for the protection of other persons—this would be a restriction on the existing powers of the court that would need very careful examination. Again I say that it will be examined.
The third new clause, Amendment No. 10, deals with rights of appeal to the Court of Criminal Appeal. It has to be considered in conjunction with the last clause of the noble and learned Lord's series, Amendment No. 13, which I will come to in a moment. The consequences of the new clauses taken together must be carefully scrutinised. The effect of these combined clauses seems to be that where a person appeals against a finding of unfitness to plead, the Court of Criminal Appeal may substitute its opinion for that of the jury or order a retrial, as it thinks fit. The question of power to order a retrial and of the circumstances in which such a power is desirable is one on which opinions are deeply divided.
When I was in the House of Commons I made a strong speech against the Court of Criminal Appeal's having the right of a retrial. The burden of my song then was that if the prosecution could not prove its case the first time, it ought not to have two bites of the cherry, and of the Court of Criminal Appeal found that there was something wrong with the conduct of a case by the prosecution, then the man ought to get off. It was a lesser danger that a guilty person should get off than to have an oppressive system. To show the difficulty, my noble and learned friend Lord Tucker was chairman of a committee which considered this and he took the other view. I only remind the noble and learned Lord of this to show that this issue of retrial is a very difficult one. Even were the question of unfitness and the issue of guilt or innocence considered together at the trial, the accused might be placed 1014 in danger for the second time on the issue of guilt or innocence.
The first three clauses raise a very difficult question, on which, as I have indicated, there has been a conflict of judicial opinion. I have said more than once that the problem requires careful consideration, and it might be that the best course would be to refer it to the Criminal Law Revision Committee, over which presides the right honourable and learned gentleman Lord Justice Sellers; but I cannot give an undertaking on that, because I should like to give it more consideration before I make any announcement. But that is the way my consideration is moving. It is a difficult point and I should like to discuss further with my right honourable friend the Home Secretary whether it would be a matter which should be referred.
On the second group of clauses, fortunately I am able to go further than that. For some time there has been a strong body of opinion taking the view that the power of appeal is desirable in certain cases where there has been a verdict of guilty but insane. I am not going to go through the cases, but the noble and learned Lord can take it that I have them in mind. The question of the circumstances in which the appeal should lie, if the need be accepted, and of the powers to be conferred on the Court of Criminal Appeal in dealing with such an appeal is not free from difficulty and, after consultation with my noble and learned friend the Lord Chief Justice, my right honourable friend the Home Secretary has decided to refer this matter to the Criminal Law Revision Committee under Lord Justice Sellers.
The new clause dealing with the powers of the Court of Criminal Appeal (that is the noble Lord's Amendment No. 13) is consequential upon the provisions in earlier clauses conferring rights of appeal where none exist at present. The clause confers on the court the power to order a new trial which raises the issues I have mentioned. It also, in subsection (2), has a novel provision about seeking expert opinion. Clearly, any questions on the power of the Court of Criminal Appeal when dealing with an appeal in the circumstances envisaged ought to be considered in the light of any conclusions reached 1015 by the Criminal Law Revision Committee on the reference to them I have already mentioned, and it would be premature to express any opinion until the Committee have reached their conclusion.
I hope the noble and learned Lord will be satisfied with that. I think he will agree with me that the questions in his second group are also matters of great importance. I recently had to consider, as he knows, one of the cases he has in mind, because it was in a field with which I was dealing only some months ago. So the noble Lord can take it that I am well seized of the matters he has in mind here. On the question of appeal, my right honourable friend will refer that; and the Home Secretary is also considering reference to the Committee of the question of the power of the prosecution to raise the issue of insanity where there is a defence of diminished responsibility. In view of what I have said about the definite reference on the question of appeal, and the consideration of reference about the power of the prosecution to raise insanity, I hope the noble and learned Lord will not press the Amendments to-day; but I would ask him not to hesitate to communicate with me or with the Home Office to know how the matter is going on.
§ 6.33 p.m.
§ LORD CHORLEY
I am grateful to the noble and learned Viscount for his sympathetic reply. I agree with him that the position in respect of the first Amendment is a difficult one. It will be in only a rather exceptional case that this sort of matter will arise: usually the commission of the act by the man in the dock is clear enough. But occasionally there is a case of the kind that this Amendment is aimed at when the facts are not clear, and it seems only right that the matter should be tested by the prisoner's counsel. The Lord Chancellor and I are well aware of how that is done. I think it is perfectly possible at the end of the prosecution's evidence to submit that it has been broken down to the extent that it would not be safe for a jury to reach a verdict of guilty; and if the learned judge in charge of the case indicates to the jury that that is his view, in my experience the jury will inevitably feel 1016 that the case has not been made out. If it does not go that way, then the defence can say: "Now we should like to have the issue as to whether the man is fit to plead tried"; and I should have thought that it could be done. But I appreciate there are difficult problems involved, and obviously it would be a great advantage if the noble and learned Viscount could see his way to refer the matter to Lord Justice Seller's Committee. I appreciate that he cannot give me an undertaking to-day to do so, but if he could by the next stage, I should naturally be gratified, although it may be that that will not be possible either. However, I am prepared to accept the sympathetic way in which the noble and learned Viscount has dealt with the matter, and I ask permission to withdraw the Amendment.
I would say about the other matters that I will accept the Lord Chancellor's advice and not move the Amendments. The second of these clauses was really intended to bring this matter into line with the provisions of the Mental Health Act, 1959, which I am sure we all agree marks a considerable advance in the handling of problems of this kind. There is a strong argument against using the machinery of the criminal courts for the purpose of dealing with mentally disordered persons, and it is much better that they should be dealt with under the Mental Health Act, 1959. The object of the clause was to try to secure that. I appreciate that the wording possibly is not as good as might have been chosen, and if the matter goes further no doubt the Lord Chancellor will have it looked at by his much more expert draftsmen.
I am very glad to hear that the problem in the Felsted case in going to Lord Justice Seller's Committee. I understand that there has been some question about it in another place and that the matter was to be looked at. I am glad to hear that it has now been decided to do this because, as the Lord Chancellor knows that is a case which has been giving fist' to difficulty in recent times.
Then, with regard to ordering a new trial. I appreciate that that is a point on which it would be difficult for the noble and learned Viscount to accept the proposal in a limited way like this without its being extended to the whole range of 1017 criminal proceedings. Obviously it would be difficult to introduce it here and not Ito introduce it generally. If I may say so, I think the current of the tide has been recently rather setting against the view which the Lord Chancellor is known to have fought for so strenuously some years ago, and there has been a case which I think he will agree rather strengthens the opposite view. However, it is getting late, and I do not propose to carry the matter further. I ask leave to withdraw the Amendment I have moved and I do not propose to move the other Amendments.
§ Amendment, by leave, withdrawn.
§ Clause 15 [Contribution to costs incurred under certain provisions]:
§ THE LORD CHANCELLOR
Perhaps I may deal with Amendments Nos. 14 and 15 together. They merely remedy an omission in the clause. Subsection (1) of the clause is intended to be a list of provisions under which a case may be tried, sentenced or dealt with by a court other than the one which would deal with it in the normal course. The later subsections of the clause provide for the distribution of responsibility for the costs of the proceedings in such circumstances, and it is desirable that there should be consistency in all cases of this kind. There should be included in the list the proviso to subsection (3) of Section 1 of the Assizes and Quarter Sessions Act, 1908, which deals with, circumstances in which there is not sufficient business for quarter sessions at a particular place, and allows any case committed there to be sent to another court of quarter sessions. In the interests of uniformity and completeness, I beg to move.
§ On Question, Amendment agreed to.
§ On Question, Amendment agreed to.
§ Clause 15, as amended, agreed to.
§ Clauses 16 to 18 agreed to.
§ First to Fourth Schedules agreed to.1018
§ Fifth Schedule [Enactments Repealed]:
§ Amendment moved—
§ Page 15, line 46, at end insert—
|("8 Edw. 7. c. 41.||The Assizes and Quarter Sessions Act,1908.||In section one, in subsection (3) paragraphs (a) and (b) of the proviso and the word 'but' preceding those paragraphs.")|
§ —(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Fifth Schedule, as amended, agreed to.
§ House resumed.