§ 4.45 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.——(Lord Stonham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1 [Committal for trial without consideration of the evidence]:
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ VISCOUNT DILHORNE
I should like to say how much I welcome this particular proposal. I hope it will be widely used; for if it is widely used it will lead to a great saving of time and expense.
§ Clause 1 agreed to.
§ Clause 2 [Written statements before examining justices]
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ LORD DERWENT
There are one or two points I should like to raise on this clause. I have not put down an Amendment at this stage because I want a certain clarification. As your Lordships know, the clause allows, in certain circumstances and with certain safeguards, for written statements to be admitted as evidence in committal proceedings in the same way as oral evidence. When we come to subsection (5) of the clause I am in some doubt. Subsection (5) says in effect that where a statement is admitted as evidence it shall be read aloud 199 in court or, if the court so orders or so wishes, the statement, or part of the statement, can be summarised and the summary read aloud. I think that gives the picture of that subsection.
But nothing is said in the Bill about who is to read it aloud—although that is comparatively unimportant—and nothing is said as to who is to prepare the summary and read that. This is a matter of some importance because one visualises that where a summary is made and produced—I do not know who is going to produce it; shall we say the prosecution?—or the court has ordered a summary to be made during the proceedings (which, apparently, can occur), it may be that the defence will then say that it is not a real summary, not a true summary but a biased one. Then I suppose that what happens, after argument, is that the court says: "Let us read the whole of the statement"—and no time is saved at all.
There is another point also. It is laid down in the clause that where a statement is made that has to be read, in due course, in court, copies of that statement must be given to the other interested parties. It does not say anything about giving the summary to the other parties in advance. Obviously, if a court decides suddenly that a particular statement is rather complicated and repetitive and asks for a summary, it will not be possible to give any advance notice of what is in that summary. I should be grateful if the noble and learned Lord or the noble Lord, Lord Stonham—whoever is to deal with this subject—would comment on these points.
§ VISCOUNT DILHORNE
My Lords, I should like to raise a point with regard to this clause. I rather incline to the view that this really should be Clause 1, because it is only if all the evidence put before the court is written that Clause 1 can apply. I should like to know whether the noble Lord, Lord Stonham, can throw any light on it. In practice, presumably, the accused will be brought into court and charges will then be read out. Then, is it contemplated that the prosecution shall produce a bundle of written statements—because Clause 1 contemplates that the accused shall be committed for trial on written statements—without consideration by the court of the contents of those 200 statements? When the prosecution produces the bundle of written statements will the next thing be that the court asks the accused whether he or they object to any of the statements being tendered in evidence at the committal proceedings? Does the court ask whether copies of the statements have been received by the other parties to the proceedings; that is to say, in compliance with Clause 2(2)(c) and (d)?
If that is the procedure, I should like to put this point to the noble Lord. Suppose one of the statements is by a police officer in which he says, as so many of them do, that at such and such a time the accused said this and that to him; and that in fact the accused was making a confession which is embodied in the statement. Suppose the defence wishes in due course to raise a question as to the admissibility of that confession; does this mean, if the only thing the defence wishes to raise is the question of the admissibility of the confession, that if it objects to that statement of the police officer being dealt with as written evidence, all the evidence then will be oral? Or does it mean that only the evidence of the police officer will be oral? I think it means the latter, because the first course seems rather unnecessary, if the defence does not wish to challenge the written statement but merely to say that parts of it are inadmissible in evidence. I think that this point needs to be cleared up, because unless it is cleared up satisfactorily a lot of objections may well be taken to written statements in the magistrates' courts, solely on the ground that parts of them are inadmissible, while there is no objection to the written statement in principle.
I dare say the defence will feel that it is in somewhat of a dilemma. If it does not take the objection at the time which it can do under the provisions in this Bill, it may be said that the defence is not questioning the admissibility in evidence of the statement. Therefore I throw out the suggestion to the noble Lord that it might be desirable to consider whether some indication should be given to enable the defence to have it noted on the statement that it is not requiring oral evidence to be given about the content of the statement but that at the trial it will object to the admissibility of certain parts of the statement. 201 If that could be done, I believe it would avoid the unnecessary calling of oral evidence, and I should like to put that suggestion to the noble Lord. Unless some indication of that kind is put in the clause, I think that on grounds of admissibility it will be necessary to postpone the committal of an accused person, which would otherwise take place on the written statement alone, in order to secure the attendance of a police constable to give oral evidence.
With regard to the summary of the statement, to which my noble friend referred, I should be grateful to know—as indeed he would—how the procedure is to work. I did not visualise that a summary would be prepared before the case was started, because the court would not know, or give directions, as to what part should he summarised. If, during the hearing of a long and tedious statement, there is to be a direction that a summary of it should be given, who is to be charged with that task? It is not a very easy task to summarise a long document at short notice. On whom is the responsibility for that to be placed? I cannot conceive that there will be any need to circularise the other parties to the case with copies of the proposed summary; nor do I think that would be possible. But I am rather puzzled to know why it is that we have this new procedure for allowing evidence tendered in committal proceedings to be summarised. There is a later clause with a similar provision in relation to evidence given at a hearing, and I have an Amendment down to deal with it, but this is a different matter, and I should like to know what is the case for it and how the procedure in relation to it is to be applied.
§ 4.56 p.m.
§ LORD ROYLE
To some extent I share the anxieties, if they are anxieties, of the noble Lord, Lord Derwent, and the noble and learned Viscount, Lord Dilhorne, on the question of the statement and the summary. The noble Lord, Lord Derwent, said that who should read it was perhaps not very important, but I think it would be as well if we knew whether it is to be the lawyers involved or the clerk to the court. The thought which goes through my mind is that this may be the intention of the Government. Perhaps my noble and learned friend will 202 help me. Is it possible to do this by amending the magistrates' court rules? Is it the intention of the Government to do it by amendment and to state it in the magistrates' court rules? If that were done, I feel it might obviate difficulties which are in the minds of some of your Lordships.
§ THE LORD CHANCELLOR
Throughout the Committee stage of this Bill it will be the object of my noble friend Lord Stonham and me to take the most careful account of all suggestions which are made. As your Lordships know, the Bill had a very long Committee stage in another place; but two minds are better than one, and we should always desire to take into account everything that is said, and not necessarily reach a final view immediately a question is raised.
Clause 2(5) does not apply where Clause 1 applies. The basic principle which underlies these opening clauses is that one wants to do away with a lot of the preliminary proceedings in indictable cases where they do not do any good and no one wants them. But we do not want to take away from any accused person any right which he now has. So Clause 1 says, "if you do not want any preliminary proceedings, and the prosecution do not want any preliminary proceedings, then the justices need not trouble to read the evidence; they can commit right away". But, of course, there are cases in which either the accused person will say, "I want the lot"—in which case, of course, he can have the lot—or, "I just want to cross-examine one witness", or, "I am not bothering about some things but I am bothering about others"
In respect of the particular clause referred to by the noble Lord, Lord Derwent, it will be the responsibility of the party tendering the statement in evidence. This invariably will be that party who requests the court to exercise its discretion, and therefore it is right that he should give the oral account of the omitted passage; it is not contemplated that some written summary would be prepared. This happens now in every court every day of the week. There may be a breaking into a jeweller's shop and a lot of jewellery, left by customers for repair, may be stolen. If the accused does not dispute that the break-in took 203 place but says it was not he who was responsible (he was at home at the time with his wife and friends and knows nothing about it) at present people may be called from all over England, Scotland, Northern Ireland or anywhere else, simply to say, "Yes, that is my watch" or "Yes, that is my ring," because the owner of the stolen property must be identified.
In such a case, if it was clear that the defendant was saying, "I am not challenging for a moment that a break-in took place, but I know nothing about it at all", whoever is prosecuting would, not unnaturally, say, "I have a statement by the owner of a ring. All it does is to say that he is the owner of one of the rings the identity of which has already been established" It would be open to the accused or his representative to raise any point they wished on that statement or ask for it to be read, but if it is not challenged there is no point in it. The only witness the accused would want to cross-examine would be a witness who purported to identify him as being the man who broke into the shop. But there is no need to say in the Bill that it is not necessary to read out a particular document.
On the other hand, my noble friend Lord Royle is right in saying that a great many of the procedural matters before justices are dealt with in the magistrates' court rules. It has already become apparent to my right honourable friend that pretty wholesale revision of the magistrates' court rules will be necessary in the event of this Bill's becoming law. Therefore I do not think that any difficulty is likely to arise, from the practical point of view, but my right honourable friend will certainly consider, when he reads them, the observations that both the noble and learned Viscount and the noble Lord have made.
§ VISCOUNT DILHORNE
I may not have made myself clear. My points were not confined to Clause 2(5) but referred also to subsection (2)(c) and (d) and the procedure to be followed there. I made a suggestion to avoid an objection on the ground of inadmissibility necessarily resulting in a witness being called orally. If there could be some provision, in conformity with Clause 2(5), requiring the defence to state that there will be an objection on admissibility in due course, 204 I think we shall find that there will be far fewer objections to reading a statement.
§ THE LORD CHANCELLOR
That point will be considered. I think that it will also be dealt with in the consideration of the magistrates' court rules.
§ LORD DERWENT
I thank the noble and learned Lord. I should like to read what he said, but I think that I am satisfied.
§ Clause 2 agreed to.
§ Clause 3 [Restrictions on reports of committal proceedings]:
§ 5.3 p.m.
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ VISCOUNT DILHORNE
My Amendment to leave out Clause 3 raises the first of a number of important issues that we shall have to consider in relation to this Bill. It is an issue on which opinions among lawyers and laymen have for long been divided. This clause is based on the recommendation of the Committee, presided over by my noble and learned friend Lord Tucker, which reported in 1958. I think it is no secret that what happened at the committal proceedings of Dr. Bodkin Adams led to the appointment of that Committee. When Dr. Adams was charged with the murder of a patient, evidence was given at the magistrates' court about the circumstances in which two other patients had died. When he appeared subsequently at the Old Bailey that evidence was not given for the prosecution. Of course, the House knows that Dr. Adams was acquitted.
I do not recollect any case, not even the Moors case, which received greater publicity in the national and local Press. One could safely assume that some of the jurors had read the evidence given at the magistrates' court which was not given at the trial. If they had, they were obviously not prejudiced by it, because they acquitted Dr. Adams. But the fact remains that they might have been prejudiced. It cannot be denied that in such a case the possibility of prejudice exists. Cases which receive publicity are not all that frequent; nor does it often happen that important evidence given at 205 the magistrates' court is not given at the trial.
I would summarise the matter by suggesting that there are two possibilities of prejudice. The first is through a juror's reading and remembering, and being affected by, evidence given at the magistrates' court and not at the trial; and the second by a juror's mind being prejudiced in advance through reading in a newspaper evidence given at the magistrates' court and also at the trial. Except in perhaps a very few cases there is not much risk attached to the latter category. When a man reads his evening newspaper he does not know that he will have to serve on a jury trying the case later, and when the trial comes on he has small reason to recollect or be affected by what he read of the case, it may be months before. But I do not seek to deny that the possibility of prejudice exists under the committal procedure in use to-day. I must frankly admit that for a long time I was an advocate of restricting the reporting of committal proceedings in magistrates' courts and a supporter of the proposals contained in the report of the Committee over which my noble and learned friend Lord Tucker presided. But I am not any longer. I have changed my opinion on this, and I hope that what I am about to say may perhaps induce others to do likewise and support me in the Lobby in taking this clause out of the Bill.
There is no need for me to remind your Lordships that justice should not be administered in secret and that it requires a very strong case indeed to be made out to justify that. It was thought that there was such a case in relation to the proceedings in juvenile courts. But does anyone who does not take part in such proceedings know anything about what goes on in them? I must confess that I am very ignorant on the subject. I have heard it said, by people who ought to know, that sometimes the treatment by these courts of juvenile offenders guilty of serious crimes is so soft that in fact it encourages the commission of crimes. Whether this be true or not, I do not know. The point I want to make is that the general public do not know what happens. They have no information before them on which to judge whether it is true or false. If it is true, the salutory effect of public opinion is not 206 brought to bear. It is proposed by this clause that, except at the request of the defence, all committal proceedings should be not reportable. This implements a recommendation of the Tucker Committee, a recommendation which was made before there was any procedure for securing that a man could be committed for trial by a magistrates' court without their hearing any evidence, before there was any procedure such as is embodied in Clause 1. I wonder whether the Tucker Committee would have made the same proposal if that procedure had existed when they made their Report.
On this, I hold no brief for the Press or for the broadcasting of committal proceedings, but I think that there is an important principle at issue here. This matter was considered by the Press Council, who expressed their views in a document which has been circulated to your Lordships. They recited the weighty objections found by the Tucker Committee to magistrates' courts sitting in camera on three grounds: first, that there is a general distaste for the idea of justice being administered in a court room behind locked doors; secondly, that if the examining justices were to dismiss a charge when sitting in camera, it might he suggested that some favouritism had been shown to the accused; and, thirdly, that it might be suspected that the conduct of the proceedings did not come up to the normal high standards of magistrates' courts.
They expressed the view in their conclusions that:The compromise solution proposed by the Tucker Report is bad, in principle, and in practice will not meet at all realistically the weighty objections which the report itself sets forth to committal proceedings being generally held in camera.If it be a matter of great importance, as I think it is, that justice should be seen to be done by the public at large, that must in these days depend on reports in the Press, and broadcasting and television. And the most important field of all where justice should be seen to be done is surely in criminal proceedings. Where there is a hearing of any kind in a criminal court, then in my view a very strong case indeed has to be made out for restricting the reporting of the hearing. That, I submit, is the principle that should be applied in relation to this proposal.
207 It is because, in my belief, that case cannot be made out as of general application that I am against the clause. That in a few cases of notoriety there is the chance of prejudice I should certainly not deny; but on account of that chance in a few cases the public at large, if this clause is passed, will be in ignorance of how the hearing in the magistrates' court was conducted in every case where there is a hearing in committal proceedings unless the defence otherwise request. The Tucker Committee rightly said that whether or not there was a risk of a verdict being affected by what was being reported in the proceedings was incapable of proof either way. I think I can summarise the basis of their recommendation by saying that it was based on the view, so widely held, that reporting of committal proceedingsmay and in certain cases must make it difficult for a jury to approach a case without preconceived ideas".It is on that ground—not on proof of the fact, for it is not capable of proof—that this far-reaching change is proposed. I think that the case for making it is not made out. Indeed, in my view such evidence as there is points the other way, and the acquittal of Dr. Bodkin Adams is some evidence that the jury were not prejudiced by reading the evidence given at the magistrates' court.
If Clause 1 is enacted a defendant can avoid all risk of being prejudiced by a hearing in the magistrates' court. In cases such as the Moors case, the Adams case and many others, it is to the highest degree unlikely that the prosecution could not produce a case to go for trial. If that be so, the defendant suffers no prejudice by the case being committed for trial on written statements. In such a case there is no hearing of the evidence, and nothing to report save the case of committal on certain charges. If Clause 1 of this Bill had been in operation at the time of the Dr. Adams case, and had been used, all the evidence for the prosecution given at the magistrates' court could have been in written statements; there would have been no publicity of the prosecution's case at all. There would not have been evidence given at the magistrates' court which was not given at the trial, and so there would be no risk of prejudice.
208 But when the defence wish to make a fight of it in the magistrates' court, when the prosecution's case is contested there, then there is a hearing. In my view that hearing should in the future be as fully reportable as it is to-day, and the defendant should not be given the option, as he is by this Bill, of saying: "I will make a fight of it, but I will do it without any publicity, because I will not ask for the hearing to be reported, and so I will ensure that by making a fight, if I lose the general public will not know anything about it." I think that the clause is wrong in giving him the right to secure that the hearing is not reported, and the rule should be that in every case where there is a hearing—and there will not be one under Clause 1—it should be reportable.
There are some who seek to mitigate the effect of this clause by pointing out that the hearing will not be in camera. In my opinion, that will not suffice. Let me assume that something very wrong takes place during the committal proceedings. If there is no reporting of the case, there will be no opportunity for those, lawyers or laymen, not present in court to learn of it, except by gossip, until after the trial, if what has happened is then reported, which is very doubtful, or after the magistrates have decided not to commit.
The Tucker Committee examined with great care the argument that the reporting of committal proceedings occasionally led to witnesses coming forward who would not otherwise have been found. In the cases which they examined they could not form an opinion whether the coming forward of a new witness led to an acquittal. Only a few days ago there was reported in The Times a case at Leeds Assizes where, because of a report of committal proceedings, a man came forward with the result that no evidence was offered at the trial against the man accused of the offence.
I will read three lines from that report in The Times. It starts by saying:As a result of publication of committal proceedings in a newspaper a man came forward to clear the man who had been committed for trial, Mr. Arthur Hutchison for the prosecution said at Leeds Assizes yesterday.I believe it is the case that there are many experienced in defending criminals or persons charged with crime who 209 believe, and continue to believe, that the reporting of committal proceedings on occasions serves a very useful purpose in leading people to come forward who would not otherwise be traced.
So in considering the proposal in this clause, if one disregards Clause 1, as the Tucker Committee did, the balance has to be assessed between the advantage to the defendant on occasions of a witness being brought forward by the publicity, and the disadvantage of the possibility of prejudice through evidence being given before the magistrates and not at the trial, and remembered by a juror, or his mind being affected by hearing evidence which he had read in a newspaper. The Tucker Committee, as I have said, came down against the possibility of prejudice. But now I think the position is different. If the defendant does not wish to fight at the magistrates' court—and few do—committal on written statements will be possible without any possibility of prejudice. But if he wishes to fight, there will be a hearing, and the fight should be reportable. It is for these reasons that I have changed my mind, and why I think this clause is wrong; and I shall invite your Lordships to agree with me and endeavour to improve the Bill by removing the clause from the Bill.
§ 5.20 p.m.
§ LORD BROOKE OF CUMNOR
I think that many of your Lordships will find this an extremely difficult subject. We are all grateful to my noble and learned friend Lord Dilhorne for stating so cogently and succinctly the case against the clause. I speak as a layman, but lay or learned I think that every one of your Lordships has a deep, innate desire to see all judicial proceedings held in public unless there is an overwhelming case to the contrary. I would submit, therefore, that the onus of proof in this case rests on the Government, because the general feeling of your Lordships, the general feeling of the public, I am sure, is that, though one may argue this matter from the old saying that justice should not only be done but be seen to he done, it is deep in every Englishman that the court should not sit in secret unless there is overriding argument to that effect.
The second difficulty arises from the fact that we are all greatly indebted to the Tucker Committee for their Report, 210 and we are all likely to be swayed considerably by their argument. Yet the Tucker Committee were, of course, applying themselves to a different problem from the one of your Lordships in this clause, because the Tucker Committee were considering what I might describe as the old form of committal proceedings, whereas now we are being invited—and in my view, and in my noble friend's view, quite rightly invited—to consider a new form for committal proceedings. Therefore I submit that we must wipe out of our minds a good deal of Tucker argument, though not necessarily all of it, because there is no doubt about the great value of that Report.
If the effect of leaving out Clause 3 would be that proceedings would be reported, or at any rate would be open to report by the Press, if the defence had asked for an oral hearing, I think I should be wholeheartedly in favour of leaving out Clause 3. But I hope the Government will be able to help me on this. It appears to me, from my reading of Clause 2, that an oral hearing may take place not only at the instance of the defence but also at the instance of the prosecution; and I certainly can see that the arguments for and against Press publicity may well be different according to whether it is the defence or the prosecution that has asked for an oral hearing. I listened to my noble and learned friend as closely as I could, and I thought he was basing his argument on the fact that the oral proceedings would be at the instance of the defence, and I should have thought that in 999 cases out of 1,000 that would be so. But, as I understand the Bill, it provides scope for the prosecution to take the initiative and demand oral proceedings, which to my mind makes the question of Clause 3 all the more difficult.
I myself am extremely anxious to hear what the Government and what other noble Lords, and especially noble and learned Lords, have to say about this, because at my present stage of thinking I am very strongly swayed by the old, natural British instinct that judicial proceedings should be held in public unless the evidence is overwhelming to the contrary. My noble and learned friend has instanced the further argument that committal proceedings held in public may bring forward witnesses whose eventual evidence may have a profound effect on 211 the outcome of the trial proceedings. Therefore the argument in favour of publicity is very strong. But there are also—and I grant this—substantial arguments in favour of withholding publicity if the oral hearing takes place on the initiative of the prosecution. It is for these reasons that I am very much looking forward to hearing the Government explain at greater length their reasons for thinking that Clause 3 should be in the Bill.
§ 5.26 p.m.
§ LORD TUCKER
When the Committee over which I presided, eight years ago now, had this matter before them I started the inquiries with very much the same kind of outlook towards the problem that my noble and learned friend Lord Dilhorne has put before your Lordships to-day. But, having considered the matter, with the assistance of the other members of the Committee—one of whom, I may say, was a representative of the Press—we finally reached the conclusion that the reporting of committal proceedings in the Press tended to give a feeling of unfairness in the man who was being put on trial, to the relatives and those who are concerned with him, because they read day after day, in a sensational case, pages and pages of evidence which the accused man is not going to be in a position to challenge before the magistrates. I say, "not in a position to challenge before the magistrates", because the defendant who receives wise advice in that type of case almost always reserves his ultimate defence until the trial, and, generally speaking, the fewer the questions asked by the accused person, the better.
Take, for instance, Dr. Bodkin Adams' case. During all the preliminary proceedings Dr. Bodkin Adams (whether he was on bail, I do not remember) and his relations and so forth, were presumably travelling up and down in the train hearing his case discussed, and hearing him condemned or his guilt assumed in the way that is so often done in public places. That includes the opening speech of counsel, which generally sets out the whole of the case and may contain statements unsupported by the evidence which he eventually calls. To satisfy that man and his relatives that his trial is not going to be prejudiced would, I think, be ex 212 tremely difficult. I am at one with my noble and learned friend in that I do not believe that, in practice, juries, after they have got into the jury box and have heard the whole case and know it, and have had the guidance of the learned judge, are affected by what they read in the newspapers. But it is very difficult for the accused who is awaiting trial to be satisfied with regard to that.
Furthermore, there are cases, smaller cases, not of a sensational nature, which are reported in considerable detail in the local paper, where they are "news". But by the time the case comes to trial, at quarter sessions or assizes, it may cease to be news, and it is either not reported at all or relegated to a very remote corner of the paper which is not read by everybody. It is matters of that kind with regard to which we felt satisfied that the present procedure was not calculated to demonstrate clearly to the accused, and those concerned with him, that justice was in fact being done. We hear so much about justice not only having to be done but having to be be seen to be done. We felt that this procedure was exactly the opposite. It was making something appear to be justice which was not in fact so, and would not satisfy an accused person.
Our final decision was based upon that aspect of the case much more than upon the fear that juries might in fact and in truth be affected by what they read in the paper. Perhaps I may read the penultimate paragraph of our Report, in which we said:We realise that any restriction on the reporting of what occurs in court was believed by the representatives of the Press who gave evidence before us to infringe that freedom of reporting which they regard as essential to the proper administration of justice. We agree that freedom to report trials is essential, and we re-affirm the right of the Press to report proceedings which result in the discharge or conviction of the accused; but we draw a clear distinction between reporting the trial itself and reporting prelminary proceedings. It is in our opinion illogical and wrong to permit such latitude in the reporting of preliminary proceedings that confidence in the fairness of the trial is undermined. That in our view is the crux of the matter.I concede, of course, that having regard to the other provisions of the present Bill this aspect of the case may not be as important as it was at the time when our Committee held its deliberations, but speaking for myself I have heard nothing 213 in the past eight years to make me alter my ultimate view that I shared with the other members of the Committee, who were unanimous in recommending the abolition of the present procedure.
I am sure I need not emphasise to your Lordships that preliminary proceedings are not parts of the trial. A preliminary inquiry is only as to whether a man should or should not be put on trial. It is an inquiry which they manage quite well to do without in Scotland, and in any case no decision in the sense of a man being guilty or not guilty is reached. Therefore the question of the freedom of the Press and the administration of justice being carried out in public does not seem to me to arise, because this is a form of proceeding which is quite distinct from judicial proceedings which result in a definite conclusion one way or another. As I have said, I have heard nothing to make me think that, in so far as committal proceedings continue to take place in public, it is in the interests of the administration of justice that they should be widely disseminated when only one half of the case is before the public.
§ VISCOUNT BRIDGEMAN
As the only other member of the Tucker Committee here to-day, may I say how glad I am that the noble and learned Lord, Lord Tucker, has given the House such a clear explanation of what was in the minds of the Tucker Committee when they took the step of recommending restrictions on reports, which we realised at the time was something that we ought not to do lightly.
The noble and learned Lord has explained our views so clearly that I need do nothing more than to endorse from my own recollection everything that he has just told the Committee, except that I must say that I am quite sure it was in our minds that if a clause of this sort appeared in a Bill of this kind it would not be intended as an invitation to magistrates' courts to restrict reports but rather to give them power to restrict reporting in cases where it was felt that it was in the interests of justice to do so.
§ 5.35 p.m.
§ THE LORD CHANCELLOR
May I start by making it quite clear that there is no question whatever, as the noble Lord, Lord Brooke of Cumnor, has suggested, of justices in these proceedings 214 sitting in secret. It is intended that they should sit in public; the question is whether what happens is reported in the Press. I must confess that for some time before the Tucker Committee was appointed I had personally formed the view that those who were indicted for indictable offences were unfairly treated in that the case for the prosecution was published in all the papers where the jury could read it before the trial even started. It was unfair in these respects: first, one has the prosecution's case twice over, because counsel for the prosecution explains exactly the nature of the crime and why it is said that the accused is the man who committed it. There then comes the whole of the prosecution's evidence, and then, as the noble and learned Lord, Lord Tucker, has said, invariably in the vast majority of cases—49 out of 50 cases I suppose—the accused does not give evidence himself or call any evidence. So what appears in the Press, and sometimes day after day, is the case for the prosecution twice over, and none of the case for the defence.
Next, it is not always the case that witnesses for the prosecution say what counsel for the prosecution believes they are going to say. They may not come up to their proofs, and therefore there may be published in the Press a statement by, of course, a responsible counsel as to something the accused has done, when no evidence is given in that court to support it. Further than that, there are cases where counsel for the defence submits that a particular piece of evidence, which may be a confession or otherwise, which the prosecution want to put in, is not admissible. The justices may rule that it is admissible, and it is accordingly published; but at the trial the trial judge, on the same submission, may rule that it is inadmissible, and yet the jury may have read it in the papers.
I cannot understand how, in a case like the Bodkin Adams case, anybody can really think that the jury do not start off being prejudiced against the accused. One may remember that there was a police officer in charge of that case—I am not criticising him—who made a kind of daily Press statement as to how the case was going; and it was said that there were rumours at the time that 50 patients had died in this way. There were pictures of Bodkin Adams in his Rolls 215 Royce car, and evidence was called before the magistrates about two other women who had died in similar circumstances. All this was read by everybody in the country, yet when it came to the trial no evidence was called as to those two other people, whether because it was found to be mistaken or because it was inadmissible, I do not know.
How can a jury in a case like that possibly go into court unprejudiced? I entirely agree with judges who say that juries are very conscientious; and in these cases they are repeatedly warned that they must decide the case on the evidence which they have heard in court and that they must forget anything they may have read before they came into court. I can quite believe that juries try to do this, but the human mind is not made in a way in which, when you know something and you are ordered to forget it, you can forget it. You can do your best not to be too prejudiced by it, but you do not actually forget it.
At some time I must ask one of the noble and learned Lords who feels that juries are not influenced by these reports why it is that when there is a submission by the defence that some evidence about to be called by the prosecution is inadmissible, the judge sends the jury out of court. Why does he not leave the jury in court and then, if he rules that the evidence is inadmissible, all he has to say to the jury is: "Now, I order you to forget what we have just been talking about, because I have ruled that it is inadmissible"? Is not the reason why in those cases the judge always tells the jury to retire that he knows that, however conscientious the jury may be, if they hear discussion about a confession which on some ground the judge rules is not admissible they cannot forget what they have heard even though they are told to do so?
But, of course, the Government are not doing this on my view but basically because of the Tucker Committee's Report. It has been my experience, and I should hope the experience of most noble Lords, that when you appoint a number of English men and women, coming perhaps from different experiences, to consider a question of this kind, they, like juries, are extremely conscientious. They hear the views of everybody with specialised 216 knowledge of the subject. They take a lot of trouble about it. If they are equally divided, it shows that it is a very difficult subject; but if, with one or two dissentients, they come to a particular conclusion then I think experience suggests they are usually, right.
The Tucker Committee was not just a lawyers' Committee. The noble and learned Lord, Lord Tucker, was the Chairman. But the Committee included the noble Viscount, Lord Bridgeman, Mr. Lawton, Q.C. (as he then was: now Mr. Justice Lawton); a Conservative Member of Parliament, Mr. Rogers; a Labour Member of Parliament, Mr. Weitzman; Lady Adrian; Mr. Norman Fisher; a principal with the National Coal Board, Mr. Mervyn Jones; the Chairman of the Welsh Gas Board, Sir Sydney Littlewood (who was then or later became President of the Law Society); Miss Nunn, now of the Cabinet Office, then of the Home Office; Mr. J. P. Wilson, Joint Editor of Stone's Justices' Manual, and Mr. Scott, Managing Director of the Manchester Guardian. They received 88 memoranda of evidence from, among others (these gave written or oral evidence), the General Council of the Press, the National Union of Journalists and the Institute of Journalists; and they also heard as witnesses the editor of the Daily Telegraph, the editor of the News of the World, the editor of the Daily Mirror and the editor of the Daily Mail; so the Committee were very familiar with all the reasons put forward by the Press as to why Press reporting should continue.
The Committee first remind us in their Report that magistrates' inquiries are, in fact, very old indeed. They started, of course, before we had any police. At that time it was for the justices of the peace to discover what crimes had locally been committed and to whom the finger of guilt pointed. The taking of depositions was not required until 1554—a very long time ago now. Of course, they took them in their private homes. There was no question of anything that happened being reported. After all, at these proceedings nobody is being tried for anything; this is a mere preliminary inquiry.
When Mr. Justice Parke, in 1823, found in a particular case that in some 217 way or other members of the Press had got hold of the depositions, he said in very strong language that this was quite wrong. He appealed to the experience of every gentleman who heard him (he knew what his own experience as a judge had taught him) whether the constant course was not to transmit the depositions to the judge. In 1848, the Indictable Offences Act of that year first provided in Section 19 that the room or building in which a justice or justices took examinations in indictable offences should not be deemed to be an open court. And again, the depositions were not published. Some doubt was thrown on this view in 1879. Mr. Justice Darling, very much later, in the case of Rex v. Katz held that depositions taken in closed court were admissible at the trial, and the doubt was not really resolved until 1952. And therefore although from earlier than the 15th century justices have made preliminary inquiries in indictable cases, the practice of reporting what happens at what is not a trial but an inquiry is of very recent origin indeed.
After reminding us of that fact, the Tucker Committee went on to tell us what happened in Scotland and in Northern Ireland. Clearly, there is a great deal to be said for abolishing preliminary proceedings altogether—and they have never, of course, existed in Scotland. If you are tried for an indictable offence you are tried for an indictable offence and the trial starts when the trial starts: there are no preliminary proceedings. There is a quite substantial body of opinion, though I think a minority, in favour of abolishing committal proceedings altogether. I think probably why most people on the whole would be against it is simply because, rightly or wrongly, no doubt as a matter of historical incident, our accused in indictable cases have this great advantage of being able to hear all the witnesses for the prosecution without having to say anything themselves, and it might be thought rather to their disadvantage to take away that right. But the right does not exist in order to provide free copy for the Press but rather for the benefit of the accused.
After reminding us that there was nothing of this kind in Scotland and that Press reporting had been limited recently by an Act of Northern Ireland, the Com 218 mittee then dealt with this question of prejudice. They said:We all recognize…there is a large body of opinion held by people in various positions, many of them lawyers with practical experience, that the present system is indefensible, in that wide publicity is, in certain cases, given to a presentation of the case which is necessarily one-sided and may include matter not given in evidence at the trial. Those that take this point of view believe this may, and in certain cases must, make it difficult for a jury to approach a case without preconceived ideas. Further, even if prejudice does not in fact result, it is said that it is often impossible to satisfy the accused and those connected with him that this is the case. The fact that the trial judge has so often to warn juries against taking notice of extraneous matter shows that the danger exists and gives rise to the question whether it is not preferable, so far as possible, to reduce the danger by eliminating its most usual source. The evidence before us shows that these views are so widely held that the continuance of the existing law which permits the publication of the evidence given at the preliminary hearing before examining justices can be justified only if it can be shown to have some overriding merit. We have felt compelled to take this view since we are satisfied that many now believe that the present system creates an atmosphere prejudicial to the accused and to that extent seriously impairs public confidence in the administration of justice, and we are in no position to say that the belief is groundless.Then the Committee point out that this applies not only in cases which attract the national Press but also in local cases.
They go on to deal with the rival contention that it is a very good thing, because it enables relevant witnesses to be found. They took a great deal of trouble about this—because this is always being said. They say:We have asked all those who have advanced this argument before us to give details of cases where new witnesses of this kind have been used by the defence. Details were given of 16 such cases. Most of them had occurred in recent years, but two went back to the early years of this century. We recognise that some of those who put forward the argument thought that their past experience might have included similar cases, but their recollection was not sufficiently detailed to enable the cases to be confirmed and identified. Nevertheless, where even the scantiest details have been available, we have made every possible effort to identify the case. We also asked the Association of Chief Police Officers of England and Wales to be good enough to provide details of any cases that were known to members of the Association; and we made a similar request to the Commissioner of Police of the Metropolis. In this way we obtained details of an additional five cases … ".That is, they learned about 21 such cases in 50 years.
219 Then they say:In ten out of the 21 the accused was acquitted.That means in 11 of them he was convicted, so the witness who was found did not in fact result in acquittal. They then pointed out that even where there was acquittal it was quite impossible for the Committee to reach any opinion as to whether there would not have been an acquittal anyhow, or whether the witness was in fact found by reading something in a newspaper.
A case without precedent has recently arisen, which has been referred to by the noble and learned Viscount, Lord Dilhorne, of a witness who, because of what he had read in the papers, turned up saying, "I am the guilty person". This, apparently, in spite of all the reporting there has been in this half-century, has never happened before, and I am not sure that it would really be affected by this Bill.
May I read to the House exactly what was reported in the paper. This is the paper which the man himself read, and which led him to go to the police. It says:A night attack on a nurse in the grounds of Leeds Road Fever Hospital, Bradford was alleged in Bradford today. Harry Wimperis, 60, watchman, 30 Neame Street, Bradford, accused of robbery with violence, was committed for trial at Leeds Assizes. He said he was innocent and was given bail. He was alleged to have robbed Maria Sieri, 21, of a bag containing £3 10s., cigarettes and other property value 15s. Mr. J. Stuart Robertson, prosecuting, said that Miss Sieri who lived and worked at the hospital, was returning there on Wednesday night, March 29, when a man walked past her. Then she heard somebody behind her and was struck on the head. She did not see her attacker who grabbed at her shoulder. Another nurse, Catherine Walker, 19, ran from the hospital and chased after the man whom she recognised as Wimperis. When interviewed by the police, he denied being responsible. He said he was at home at the time. Miss Sieri was found to have a half-inch cut on her scalp, small cuts on her left cheek and a fractured ankle. Detective Sergeant K. Dewhurst said that the property stolen from Miss Sieri had been traced to Wimperis.I cannot think that it would be right that the question raised by Clause 3 of the Bill should depend on something which happens once in half a century. But I am not too clear whether those matters which can and are bound to be published under the Bill would not have 220 provided exactly the facts which are contained in that short newspaper article. What can be published under subsection (4) is:
and on what charges, adjournments, and so on. So far as I can see, substantially every fact—the names and addresses of the two nurses, their ages, exactly what he was charged with, the date, and where, and so on, could have been published if this clause was law.
- "(a) the identity of the court and the names of the examining justices;
- (b) the names, addresses and occupations of the parties and witnesses and the ages of the defendant or defendants and witnesses;
- (c) the offence or offences, or a summary of them, with which the defendant or defendants is or are charged;
- (d) the names of counsel and solicitors engaged in the proceedings;
- (e) any decision of the court to commit,"
Then the Committee, after summarising the arguments on both sides, came to a unanimous conclusion, the first of which was:There are formidable objections to examining justices sitting in camera. We do not recommend that they should either normally or frequently do so".We agree with that. Then they say:It is not possible to establish either that trials are prejudiced by reports of committal proceedings or that they are not, but there is a widespread belief that there is a special danger of prejudice occurring as a result of:
- (i) reports of proceedings on an application for bail;
- (ii) reports of evidence which subsequently is not given, or is excluded, at the trial;
- (iii) reports of the prosecution opening speech which contains allegations not supported by the commital evidence or supported by evidence not given at the trial; and in particular
- (iv) the inevitably one-sided character of reports of committal proceedings, which can usually cover only the case for the prosecution. This belief, which is shared on occasion by the accused and his friends, tends to impair public confidence in the administration of justice so that reports of this kind can be justified only if they have some overriding merit. The cases in which there is thought to be a risk include not only those that are nationally sensational but many cases that attract great notice in a particular locality.The positive merits of the present system will be preserved by maintaining it where the accused is discharged and by a report of brief particulars of the charge, the court's decision, etc., where the accused is committed for trial. In view of the minute number of 221 cases where reports result in witnesses of value to the defence coming forward and the haphazard incidence of the result, this feature cannot be regarded as a merit of the present system of sufficient value to outweigh the defects that we have found.Then they recommend in substance what is set out in the Bill.
I would suggest that this is either right or wrong; that, on the whole, it is more right than it was at the time this Committee reported, because now it some statements are read and others are not, there will be a much more lopsided view of the case if they are reportable; and, with the greatest respect to the view put forward by the noble and learned Viscount, I should not have thought that we ought to muddle up the question whether witnesses are called with the question whether there should be Press reports. Under the Bill it will be open to the accused to ask that the Press may be allowed to report the proceedings. But that is a matter for him.
What I should have thought was wrong was the view suggested by the noble and learned Viscount, which was that the accused should be presented with a cruel dilemma: that he should be told, "I know you want to cross-examine just this one witness; but you can do that only at the cost of having the whole of the opening proceedings against you reported in the newspapers." The Government can not feel that there is any logical connection between the question whether a man wants witnesses called or not and the question whether things should be reported in the newspapers. If it is a case in which the accused man wants things reported in the newspaper because he is hopeful of finding a witness, of course he will say so; and that can be done. But apart from that, I should not have thought that the question whether he wants a particular witness called or things read out in court ought really to be linked with whether he wants them in the newspapers, because that would be putting him in an unfair dilemma.
Of course this is a difficult matter. Apart from the noble Viscount, Lord Bridgeman, and perhaps the noble Lord, Lord Brooke of Cumnor, I do not know how many of your Lordships have read the Report; still less will any of us have read the 88 memoranda which that Committee considered, or heard the 41 wit 222 nesses they heard. But that Report, in all its conclusions, was unanimous, and in the Government's view it was right for the reasons which the Committee gave.
§ 5.59 p.m.
§ LORD PARKER OF WADDINGTON
Of course there are two views on this question, both most sincerely held; and it is only natural that my noble and learned friend the Lord Chancellor, in his own inimitable way, should put one side of the case as strongly as it can possibly be put. Like many of your Lordships, I start with the principle that unless there are compelling reasons to the contrary, all judicial proceedings should be conducted in the full glare of publicity. My noble and learned friend the Lord Chancellor has suggested that it is only recently that committal proceedings can possibly be said to be judicial proceedings. When they could be said to be judicial proceedings I know not, but the fact is that they are judicial proceedings to-day, whatever anybody says about it. I should be the last to object to doing away with committal proceedings altogether or making it a merely administrative process, in which case there would be no reason whatever for any reporting in the Press.
Granted that they are judicial proceedings, what is the compelling reason? I was very interested to hear my noble and learned friend Lord Tucker say that there was no evidence whatever that any jury was in fact prejudiced by what he had read in arriving at his verdict. I am not certain that the Lord Chancellor quite agreed with that, but I was glad to hear Lord Tucker say it; and I was going to say that, for my own part, there has not been a shred of evidence of any jury being prejudiced. Of course they start with the danger of prejudice, and I remember one of the Queen's Bench Judges writing to me from the North of England about a case which had received a great deal of publicity. He gave the jury a very strong warning, and they came back in a very short time, without any difficulty, acquitting the person.
The noble and learned Lord the Lord Chancellor asked: "Why do judges not deal with inadmissible evidence before the jury, without sending them out?". Very often it is the defence who wish to have the jury out. But, in any event, it is quite a different situation when the 223 jury are in the jury box dealing with the evidence in a particular case, having been sworn to do so, as compared with what they may have read, may have understood or may have remembered from some two months before.
After a sensational case like the Moors case it is only natural that we should all run away with the immediate reaction that the public ought not to hear these lurid details; and, furthermore, ask, "Could any juror who is subsequently called, even if it be two months later, forget what he has read?". But surely we ought not to be stampeded merely because of that particular sensational case. There are thousands upon thousands of cases which are dealt with every year when, as a result of committals, there is a chance of a witness coming forward.
Lord Tucker's Committee were not very impressed with the evidence which they had at that time, but I am sure that if one could collect figures of cases since then one would come across a great number of cases in which evidence has come forward, either to help the defence or to help the prosecution. There was the case to which the noble Viscount, Lord Dilhorne, referred from Leeds Assizes. Only recently a defending solicitor wrote to me about a case which was tried at the Central Criminal Court just before Christmas of last year. A man had stabbed another man in a private lodging house. It appeared that only the two were present and the man's defence was self-defence. It can be said that he might have got off or that he might have got a verdict of manslaughter. But that case was fully reported in the South West London News, and as a result a prisoner in Lewes Gaol called for the Governor and said, "I am almost certain that the victim here was a man who shared a cell with me". As a result of communication with the police, that prisoner in Lewes Gaol was called by the defence and gave evidence that the victim was a thoroughly dangerous, violent man, a man who had assaulted one prisoner, if not more, in Lewes Gaol. As a result, the man was acquitted.
It does not always happen that way. Sometimes it is witnesses for the prosecution who are involved. After all, we are considering the administration of 224 justice, not merely any particular accused person. Again, I have heard of a case involving a brawl in a street in which it has been one person's word against another and where, as a result of committal proceedings, independent evidence has come forward to support the prosecution. There was a case not long ago of a dentist accused of indecent assault on one of his patients and, again as a result of publicity, three, four or more patients came forward to say that the same thing had happened to them. It can be said that, even with the limited amount of publication permitted under this Bill, those witnesses might have been discovered. It is a possibility; but at the same time the greater the publicity, in a sense the more lurid the details, the more likely they are to catch the eye of a possible independent witness, rather than if the case were contained in a little snippet at the foot of a page, reciting the facts of the parties and the charge made.
My noble and learned friend the Lord Chancellor asked whether we were going to change this Bill possibly because of one case—he was referring to the Leeds Assizes case—in a great number of years. Surely, on well-known principles, we ought to hesitate long before we do something which prejudices an innocent man. This was an innocent man at Leeds Assizes. If there was any danger of the other witness not coming forward, ought we to take steps to see that he should not come forward? Are we not going to prejudice that one innocent man—and I am sure there are others. And what about prejudicing the administration of justice in those cases where witnesses come forward for the prosecution? One gets to the rather ironical position that the innocent man will welcome all possible publicity in the hope that a witness will come forward to support his case, whether it be on identification or, as in the case at the Central Criminal Court, to support a case of self-defence; whereas the guilty man, the man who knows he is guilty, will not want any publicity at all, for fear that somebody will come forward to support the prosecution case. It is rather absurd. We are doing something which may prejudice an innocent man and are leaning over backwards in favour of the guilty. That is the one thing we ought not to do.
225 I say frankly that the point which has influenced me more than anything else is that the view which I am trying to express is shared by all those who are intimately concerned with the matter—the magistrates, the justices' clerks, the Law Society, and particularly the criminal lawyers who spend their time defending criminals. Unless it is said that they have a vested interest—and nobody, I hope, would suggest that—surely they are the best judges. The other point they make is that committal proceedings may cure the gossip and rumour that goes about. One case which has always been held up as a case which should make us say there should be no publicity was the Stephen Ward case. And yet the solicitor defending Stephen Ward said that he, Stephen Ward, wanted the publicity to change the appalling rumours which were going about concerning him, making his offences far worse than they were. The solicitor wrote about the completely changed situation once the committal proceedings were made public.
It could be said that a man in Stephen Ward's position who wanted publicity could opt for it under this Bill, but it is a most difficult decision to put on any adviser who is advising a man in that position. I should hope that under this Bill there would be but few committal proceedings which were reportable. For the rest, there would be nothing to report. I do not think the case is made out for any secrecy in the few cases where there are committal proceedings—that is to say, any ban on full publicity—and I feel that to impose any such ban may well jeopardise an innocent person.
§ 6.10 p.m.
§ LORD DENNING
May I just say one word in support of my noble and learned friend's Amendment, only from a matter of experience? I do not believe that juries, when they come to hear the evidence in a case, are in the least prejudiced or swayed by what they may have read beforehand. The judge always warns them to put all such things out of their minds. In my experience, it is usually some weeks after reports have appeared, and I was glad to hear my noble and learned friend Lord Tucker say there is no proof that juries are, in fact, influenced by preliminary reports. Furthermore, so far as magistrates are concerned, they have 226 the existing power on application by the defence to say, "This hearing shall be in camera. This shall not be reported." As I see it, no injustice is done. But there is this further matter—the fundamental principle that every proceeding in a court of justice shall be open to all. It has these benefits, which we have heard, of witnesses who may come forward, and of the people themselves being able to see, through the Press, that the judges, the magistrates, conduct themselves properly. I suggest that not sufficient has been brought forward to outweigh that fundamental principle.
§ LORD GOODMAN
I had not intended to speak on this Amendment, but I should like to put one point of view. It is of course right that all judicial proceedings should take place in public. There is, I think, no special merit in publicity, but there is a merit in publicity which procures that no injustice is brought about. The purpose of publicity is to secure that there can be no secret injustice. I believe that this clause exposes no-one to a risk of injustice. If you analyse this carefully you will find that the defendant may, if he wishes, elect to have the publicity—this is a most important consideration—and also that, if the defendant does not want publicity, the matters to which the noble and learned Lord the Lord Chancellor has referred, which give a very full and accurate account of what is taking place in the proceedings, will in any event be published, but not the detailed evidence. It is only the detailed evidence that is being excluded.
Some powerful speeches have been directed to your Lordships' House on the basis that there is a possibility of some latent injustice (this was a point made very forcibly by the noble and learned Viscount, Lord Dilhorne, and from the Bench in front of me) because some witnesses who did not know of the proceedings would be alerted by the fact that publication had taken place. On analysis this is not an impressive argument, and the reason is twofold. First, the report of the proceedings which have taken place is not a compete report: it is only such report as the newspaper sees fit to make. It may be a complete report; it may be the briefest report, and it may—not through the fault of the newspaper—be a highly tendentious report. But it will not in any sense be a judicial report.
227 But a more important argument against this contention is that it is an extraordinary method of seeking to procure witnesses. It is a most capricious and haphazard method. It is a method which procures an advantage to the man who is charged in a sensational case. It is a method which operates in perhaps one out of a hundred or one out of a thousand sets of proceedings placed before magistrates. To preserve the reporting of proceedings for this reason seems to me to preserve an anomaly. No scientific basis exists in criminal law for seeking to preserve the reporting of proceedings in a sensational case merely because a newspaper (and there is no fault in newspapers doing so; that is how they sell their papers) sees fit to report as a matter of their own choice what is happening. This is not a reason for preserving what is regarded by many people as a great injustice to many defendants who, according to the Tucker Report, believe, although it may not be established, that their trial is prejudiced on that account. If one examines this situation closely one sees that this is a progressive proposal. It can do no injustice to anybody. Its only effect may be that in certain cases of pure caprice and chance a witness may not come forward. I do not think that loading the dice in favour of an accused in cases of that kind is a rational ground for preserving this particular procedure.
§ 6.15 p.m.
§ VISCOUNT DILHORNE
Your Lordships will recollect that that was not the ground on which I primarily supported my proposal to delete this clause; nor do I advance that as the major ground now. But it is an important ground. It is referred to in the Tucker Report, which was summarised so skilfully by the noble and learned Lord the Lord Chancellor, because I referred to it. I said in my opening speech that it seemed to me that we had to balance the possible advantage of the occasional witness being found against the possible prejudice which might come from reporting. When he came to reply the noble and learned Lord the Lord Chancellor really poured scorn on the possibility that in fact witnesses had been brought forward for the defence, or maybe for the prosecution, by the reporting of proceedings. He put the case as powerfully, 228 as my noble and learned friend Lord Parker of Waddington has said, as it can be put against the Amendment. My noble and learned friend Lord Parker of Waddington then showed that it had happened in a number of cases—more cases than either the noble and learned Lord the Lord Chancellor or I had referred to.
But that is not the main reason why I advocate the deletion of this clause; nor do I accept the proposition that the present clause leads to no risk of injustice. The proposition that I put before your Lordships is this. Whether you call them hearings or whether you call them judicial proceedings, it is of the utmost importance that unless there is an overwhelming case for no publicity the public should be informed. Why is it that our law, in particular the administration of our criminal law, is respected throughout the country for its fairness? Surely it is because people up and down this land can read about all that happens in the course of a criminal trial.
Also, of course, as the noble and learned Lord, Lord Tucker, has said, while committal proceedings are not the trial, they are something—and an important something—which leads up to the trial. I still believe that it is important for the rule of law in this country that where there is a hearing these proceedings should be reportable. I believe, too, that it is a salutary sanction in relation to the conduct of magistrates. True it is that under the Bill's proposals the hearing will not be in camera, but whatever the magistrates do it will be reportable only in the most exceptional cases if this clause stands as it now is. I know that magistrates are very conscientious. I personally have a high respect for them; and I know that they have many difficulties to contend with. But I cannot help thinking that there is at least a possibility that some benches might not on occasions be quite so careful about what they do if they knew that what they had done could never be reported. That is the ground on which I base my proposal to leave out this particular clause.
I began by saying that before the Tucker Committee reported I was a supporter of what they recommended, as I was after they had made their Report. I was with the noble and learned Lord the 229 Lord Chancellor in those views, and I think I should still be, but for the new fact which has emerged in this Bill; that it is not necessary for there to be any judicial proceedings, any hearing, to report at all.
It is seldom that evidence given at committal proceedings is challenged at all by the defence. Written statements, I hope, will be the ordinary practice, saving much time and expense. When my noble friend Lord Brooke of Cumnor asks, "Cannot the prosecution ask for oral evidence?", I would say to him that the prosecution do not set out to do anything prejudicial to the defence. They are as much concerned as anyone else to see that the trial and the preliminary proceedings are fair; and no prosecution is going to call for oral evidence if it can get written statements accepted, with the great saving of time that that involves. With great respect to my noble friend, I do not think that the highly unlikely possibility that there will be a requirement by the prosecution for oral evidence should weigh in the balance when considering this particular clause.
I was glad that my noble and learned friend Lord Tucker spoke to your Lordships about this matter. He made it quite clear that he did not think there was a case of prejudice through all the preliminary publicity but that the man might feel that there was. Now, under this Bill, the man need not have any of that publicity. That is the new factor, and that is the new factor which ought to be taken into account in considering whether we make this radical change in the law. It is not the case, if I may say so to my noble friend Lord Bridgeman, that the magistrates have any discretion in the matter. Under this Bill the judicial proceedings are bound to be non-reportable unless the defendant requests it.
The noble and learned Lord the Lord Chancellor made a very powerful speech. The Tucker Committee was a very strong Committee, and considered the matter very carefully; but now we have an entirely new situation which was not considered by the Tucker Committee. The defence can now say, "We will have no evidence given and no judicial proceedings". They can agree to written statements going in. The noble Lord the Lord Chancellor says that that is posing a cruel dilemma to the defendant. 230 I do not think it is at all. He can take whatever course he wishes.
But I think it is a cruel dilemma to put upon him the choice of whether, when he has opted for oral hearings, those hearings should be reportable. The decision he then has to make is whether to risk the chance of prejudice as against the chance of getting another witness who will come forward in his favour. That is the cruel dilemma that this Bill places on an accused person. Under what I propose, he has the choice—it is not right to describe it as a cruel dilemma—either of fighting the case in the magistrates' court or of not fighting it. If he fights it, some of the evidence may be in writing, although it will be before the court, and some of the evidence may be oral. What I say is that if he chooses to fight it there, in that court, it is a judicial proceeding, and no adequate case has been made out for its not being reportable in the Press. We have had a long debate. I am sure the Government Chief Whip will have something to say to me if I pursue this matter any longer, and I hope we may proceed to a decision on it in the near future.
§ LORD ROYLE
I do not intend to speak on the general principles of the Amendment, after what I regard as a magnificent debate, but I am drawn to my feet (and perhaps I may he forgiven, after more than thirty years as a magistrate) to express deep resentment at the suggestion of the noble Viscount, Lord Dilhorne, that magistrates might feel inclined not to behave in a proper manner and not to approach their decisions rightly if they knew that their proceedings were not being reported and publicised. I feel that I owe it to colleagues of many years, men and women who give devoted and voluntary service to the working of the courts, to protest that a suggestion of this kind should come from such a distinguished lawyer as the noble Viscount.
§ THE LORD CHANCELLOR
Perhaps I might reply very shortly on two points. Of course, the Tucker Committee found that you could not prove that juries were prejudiced and you could not prove that they were not, because you cannot ask a jury what influenced them; but I should not have thought it possible for anyone to doubt that they were. For example, take a case like the Moors case. After 231 reading reports of that, day after day, how could anyone go into a jury box without the slightest prejudice of any kind against those accused? The Tucker Committee found that, while you cannot prove it, there is a very general belief among people, including lawyers, that in fact juries are prejudiced. I do not want your Lordships to be stampeded. After all, it is eight years since the Tucker Committee reported, so after that length of time I do not think that anybody is trying to stampede anybody.
The curious thing is that at the end of the argument you have it said on one side, "It is very unfair to accused people that they should have the whole of the prosecution's case against them, admissible or inadmissible, all in the papers before the trial", and you have it said on the other side, "It is very unfair to accused people that they should be deprived of their opportunity of finding new witnesses"—and this was put very strongly. It was said, "The reason why we are in favour of this method is that we want to be fair to the accused, and it is all wrong to deprive the accused of his opportunity of finding new witnesses".
That being so, would not the fair thing be to do what this Bill in fact does? What this Bill says is: "If you are charged with an indictable offence you can do what you think is fair. If you do not want all this in the papers about you for the jury to read beforehand, you need not have it. If you want it in the papers because you think that this will lead to your obtaining some witness that you want, you have only to say so and it can be reported." Between these rival arguments, is not the accused really the best person to know what his own interest is? It is on that principle that this clause is based.
§ VISCOUNT DILHORNE
I might just say that I thought I had waited until everyone had spoken in this debate, and that I do not intend to repeat any of the arguments I used. I want to say only this: that I think that when the noble Lord, Lord Royle, sees what I said he will see that I did not make a violent attack upon magistrates as he suggested. What I said, and I adhere to it, was that the sanction of publicity is a spur to efficiency (I am putting it in other language) and that if magistrates or any 232 others—and magistrates are human—know that there is no possibility of what happens in court being recorded, then they, like others, may be tempted (perhaps they will give way to it and perhaps they will not; that is what I said) not to apply the same care as they otherwise would.
§ LORD BROOKE OF CUMNOR
Perhaps I may be allowed to say one more word. So far as we on this side of the Committee are concerned, we are taking these matters on a free vote. I think I should say that having listened to the debate, I am disposed by a fairly narrow margin to cast my vote in support of my noble friend Lord Dilhorne, and I am greatly influenced in that by the powerful and cogent speech of the noble and learned Lord the Lord Chief Justice. I am bound to add that I think that if this clause is taken out of the Bill a probable result will be that oral hearings at the committal stage will disappear. I very much doubt whether there will be accused people whose counsel will ask for an oral hearing when it is going to make all the difference between publicity and non-publicity. I am inclined to think that if that is the eventual, practical result it will be no bad thing; but I put that point of view to the Committee as a probable consequence.
I must apologise to the noble and learned Lord the Lord Chancellor if, by any slip of the tongue, I spoke earlier as though these proceedings were in camera. Of course, when I said "public" I meant by that reportable. That, of course, is the issue. But I think noble Lords will agree that this has been a most impressive debate and that it is an extremely difficult subject on which every one of us has to make up his or her own mind.
§ LORD GOODMAN
Before the Committee divides, I wonder whether I might ask for clarification on a point which probably arises only on account of my own ignorance. Much of the contention in favour of the Amendment has been on the basis that the written statements referred to in Clause 1 would not be available for publication. I wonder whether that is the case. Magistrates will in fact meet as part of a judicial proceeding. These statements will be written documents introduced into public proceedings. 233 If Clause 3 is deleted from the Bill, is it the case that those documents will not be available for publication? And, if they are available for publication, would not the situation then be very much worse than it is at the moment?
§ THE LORD CHANCELLOR
Yes, I believe that is so. That is why I suggested that if the Tucker Committee were right in the circumstances in which they considered the position, it should apply even more now where you may get some parts of evidence publishable and some parts not. You will not even get a complete account, but a partial and probably "cock-eyed" one.
§ VISCOUNT DILHORNE
Surely that is wrong—both the question and the answer. When you look at Clause 1, the committal where there are written statements and nothing else takes place without consideration of the contents of the statement. Therefore the procedure will be—I mentioned this before and it has not been dissented from—that the prosecutor will produce a bundle of written statements and the defence will be asked whether there is any objection to any of the statements. If there is no objection, there is an automatic committal. There is nothing in the nature of a hearing of any evidence or of written statements being read. If there is objection to any of the statements, there is then a hearing, individual written statements will be then read out and the court will also hear oral evidence. Clause 1 will not apply. Frankly, the noble Lord and the noble and learned Lord the Lord Chancellor have both been guilty, inadvertently, of drawing the reddest of red herrings across the trail.
§ THE LORD CHANCELLOR
I am sorry. I did not understand the noble Lord, Lord Goodman, to be talking about Clause 1. I thought he was talking about Clause 2. Under Clause 2, some evidence may be publishable, and some not. What will be publishable, if anything, will necessarily be (or may be) a partial and garbled account of the
§ case. This position makes it rather worse for the accused person than at the time when the Tucker Committee sat.
§ VISCOUNT DILHORNE
What the noble Lord, Lord Goodman, was asking was whether the documents produced on committal under Clause 1 would be publishable. He was suggesting that that would make it a worse case.
§ LORD GOODMAN
In fact, it was that question I was asking. It is great temerity on my part when I say that my withers are still unwrung, because I believe it may be the case. Under Clause 1 there is a proceeding, the magistrates are sitting, the accused will be brought into court, and there will be counsel and solicitors representing. There is a public judicial proceeding. All the evidence introduced into such a proceeding, whether it be considered by magistrates or not, would in the ordinary way be available for publication unless some protection is given under some clause in this Bill or in another Act. With the greatest respect to the noble and learned Viscount, Lord Dilhorne, I would suggest that unless some protection is given to those statements, by this Bill or by some other procedure of which I do not know, they will be available for publication; and a singularly unfortunate situation would ensue.
§ LORD LEATHERLAND
Is this a record? Some noble Lords have spoken three, four and five times, and it looks as though some will be speaking for a sixth. Some of us have disciplined ourselves very well during the debate. We have wanted to speak but have refrained from doing so in order that the vote could be taken at a reasonable hour. If somebody speaks for the seventh time, I warn the Committee that I shall want my turn.
§ 6.35 p.m.
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Their Lordships divided: Contents, 65; Not-Contents, 41.235
|Aberdare, L.||Bowles, L.[Teller.]||Chester, L. Bp.|
|Addison, V.||Bridgeman, V.||Clwyd, L.|
|Audley, Bs.||Brockway, L.||Crook, L.|
|Beswick, L.||Burden, L.||Emmet of Amberley, Bs|
|Birdwood, L.||Burton of Coventry, Bs.||Falkland, V.|
|Blyton, L.||Champion, L.||Gaitskell, Bs.|
|Gardiner, L. (L. Chancellor.)||Longford, L. (L. Privy Seal.)||Sandys, L.|
|Goodman, L.||Maelor, L.||Sempill, Ly.|
|Granville-West, L.||Mitchison, L.||Serota, Bs.|
|Hall, V.||Morris of Kenwood, L.||Shannon, E.|
|Hamilton of Dalzell, L.||Moyle, L.||Shepherd, L.|
|Henderson, L.||Ogmore, L.||Simey, L.|
|Hilton of Upton, L. [Teller.]||Pargiter, L.||Stonham, J.|
|Ilford, L.||Peddie, L.||Strabolgi, L.|
|Killearn, L.||Phillips, Bs.||Strang, L.|
|Kirkwood, L.||Plummer, Bs.||Swansea, L.|
|Latham, L.||Popplewell, L.||Taylor of Mansfield, L.|
|Leatherland, L.||Raglan, L.||Tucker, L.|
|Lindgren, L.||Ritchie-Calder, L.||Wade, L.|
|Listowel, E.||Rowley, L.||Williamson, L.|
|Llewelyn-Davies, L.||Royle, L.||Wootton of Abinger, Bs|
|Lloyd of Hampstead, L.||Sainsbury, L.|
|Aberdeen and Temair, M.||Grenfell, L.||Oakshott, L.|
|Boston, L.||Grimston of Westbury, L.||Parker of Waddington, L.|
|Brecon, L.||Iddesleigh, E.||Rathcavan, L.|
|Brooke of Cumnor, L.||Kinnoull, E.||St. Helens, L. [Teller.]|
|Brooke of Ystradfellte, Bs.||Lucas of Chilworth, L.||Simonds, V.|
|Buckton, L.||McCorquodale of Newton, L.||Somers, L.|
|Colville of Culross, V.||Mar, E.||Strange of Knokin, Bs.|
|Craigmyle, L.||Mersey, V.||Stuart of Findhorn, V.|
|Daventry, V.||Mills, V.||Thurlow, L.|
|Denham, L.||Milverton, L.||Vivian, L.|
|Denning, L.||Molson, L.||Wakefield of Kendal, L.|
|Derwent, L.[Teller.]||Mountevans, L.||Windlesham, L.|
|Dilhorne, V.||Moyne, L.||Wolverton, L.|
|Fortescue, E.||Nugent of Guildford, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative and Clause 3 agreed to accordingly.
§ Clause 4:
§ Notice of result of committal proceedings
§ 4. Where a magistrates' court acting as examining justices commits any person for trial or determines to discharge him, the clerk of the court shall, on the day on which the committal proceedings are concluded or the next day, cause to be displayed in a part of the court house to which the public have access a notice—
- (a) in either case giving that person's name, address, and age (if known);
- (b) in a case where the court so commits him, stating the charge or charges on which he is committed and the court to which he is committed;
- (c) in a case where the court dismisses the charge, describing the offence charged and stating that it has dismissed the charge.
§ 6.44 p.m.
VISCOUNT DILHORNE moved to leave out "or determines to discharge him" and insert, "or determines not to commit him". The noble and learned Viscount said: This Amendment was originally put down as a consequential Amendment, but in fact it is more than that. If it were just consequential, I should not move it because of the result of the Division. But if your Lordships
will look at the phraseology of this you will find that in Clause 4, on page 5, line 28, the words used are:
or determines to discharge him.
If you look at page 4, line 8, in clause 3(3)(a), you will see that the formula is:
where the magistrates' court determines not to commit the defendant or defendants for trial …
Thus we have two successive clauses with different language.
I think I am right in saying that in another place there was a considerable debate on whether to use in Clause 3 the expression:
where the magistrates' court determines not to commit …
or to use the words:
determines to discharge him.
I am not quite sure what is the difference in meaning of the two expressions. Presumably there is some difference, and, if so, I should be grateful if the noble and learned Lord would explain why one phrase is used in Clause 3(3) and a different one in Clause 4(4), when it would seem that both phrases are meant to refer to precisely the same act on the part of the magistrates' court. I beg to move.
Page 5, line 28, leave out (" or determines to him ") and insert (" or determines not to commit him ").—(Viscount Dilhorne.)
§ THE LORD CHANCELLOR
There are possible difficulties about both forms of wording. If one says, "determines to discharge him" it may be inaccurate, because although the magistrates may have found there is no case for trial on the charges before them, there may be other charges; or indeed the accused may already be in custody, in which case the phrase "determines to discharge him" is not a very appropriate one, although, "determines not to commit him" would be. On the other hand, the words "not to commit him" raise difficulties. Where a man is charged with larceny the proceedings in the magistrates' court must be taken as committal proceedings, even though most cases of larceny are tried summarily. When a magistrates' court decides to try a case summarily, it is determining not to commit the accused person for trial in respect of that offence. Clause 3(3)(a) is constructed on this basis. The clause allows newspaper reports of a summary trial to include accounts of what happened in court before the court determined not to commit the accused for trial. So the proposed Amendment would have the result that a notice would have to be posted in all cases where an indictable offence is tried summarily, and none of us, I am sure, intends that. For these reasons the Government are unable to accept the Amendment. The question of this wording is, however, of some difficulty and we shall be very happy to reconsider it.
§ VISCOUNT DILHORNE
I am grateful to the noble and learned Lord the Lord Chancellor. I appreciated that there was difficulty about the wording, but what I thought could not be the right answer—although I may be wrong about it—was to have one wording in Clause 3 and another in Clause 4 for dealing with what appeared to be precisely the same situation. But I may have got this wrong, and I should be grateful if the noble and learned Lord would consider it.
While I am on my feet (and I hope that I shall not be acting improperly) may I ask whether the Government can give any indication of how far they intend to go tonight? I ask for this reason. We are making not bad progress and we shall 238 be at Clause 11 fairly soon if things continue as they are going. Many of the other Amendments are consequential, but Clause 11 is a very important clause, and I think it would be a pity to debate that tonight.
§ THE LORD CHANCELLOR
Can the noble and learned Viscount tell me whether Amendment No. 5 to Clause 7 is one which is likely to take up a lot of time?
§ VISCOUNT DILHORNE
No, I do not think it will. I should like to say a few things about the clause, but I do not intend to divide the Committee. I wish to express a view.
Now I ask leave to withdraw this Amendment, and I do not intend to move Amendments Nos. 2, 3, or 4, because they are all consequential. Nor do I intend to move the Amendment to Clause 5, and so we shall come straight away to Clause 7. I think it would be for the convenience of your Lordships if the noble and learned Lord the Lord Chancellor could give an indication that we should stop before embarking on the Amendments to Clause 11.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)
I entirely agree with the noble and learned Viscount Lord Dilhorne that the debates on Clause 11 are extremely important and may take some time, and I am grateful for the indication he has given that we may now make rapid progress up to Clause 11. But I hope that we may start the debate on Clause 11. We had hoped to go on to a little after 8 o'clock, or something like that.
§ VISCOUNT DILHORNE
Surely to go on a little after 8 o'clock is merely to encourage me to talk more frequently and longer than I have done already—despite the noble Lord, Lord Leatherland. Frankly, I think it would be very wrong to start a debate on Clause 11 to-night with a thin attendance in the Committee. It would merely mean that anything said to-night will be said again to-morrow. The Government will not get any advantage by it. It will only annoy a number of noble Lords.
§ LORD STONHAM
I am making a distinction between what I thought would be a debate on the principle of Clause 11 239 and other Amendments which would precede that in the name of the noble and learned Lord, Lord Denning. I thought that we might be able to deal with these first.
§ VISCOUNT DILHORNE
I am sorry, but I think that it will be much better if we take it all to-morrow. I do not regard the Amendments in my name and in that of my noble friend Lord Brooke of Cumnor as being at all minor matters. If we try to dispose of them to-night, we shall not succeed and the argument is bound to be repeated to-morrow.
§ LORD BROOKE OF CUMNOR
I wonder whether I may appeal further to the noble Lord, Lord Stonham. Clause 11 is a unity. I should be content if Amendments Nos. 10, 11 and 12 were discussed together. I know that No. 12 is on a different subject, but I have no desire to prolong proceedings. Obviously Nos. 10 and 11 deserve to be discussed together. I should have thought that we ought to have a proper debate on Nos. 10, 11 and 12, an adequate debate on No. 13, and then have a debate on the clause. I greatly hope that the noble Lord will not insist on your Lordships' taking two bites at Clause 11. Let us start off fresh on that clause to-morrow.
§ LORD STONHAM
I want to meet the wishes of your Lordships on this matter, and I also want to make progress. We have something like 180 Amendments to get through. What I was hoping was that on the first Amendment, in the name of the noble and learned Viscount, we could have a general debate on all these Amendments and on the principle of majority verdicts, and then, when that debate ended, the various Amendments could be put.
§ VISCOUNT DILHORNE
I am not sure that that would save time. I am not trying to hold up this Bill. As the noble Lord knows, I am with him on the principle of majority verdicts, but this is very important and I feel that we shall do it much more quickly if, instead of having a ragged debate covering a great many different points, we did what my noble friend suggests and take together the Amendments in my name and in his. The next Amendment in his name is a short one and directed to the same object. Then we could have a debate on the 240 Question, That the clause stand part, and we should then know whether or not the clause had been amended. That may make a considerable difference to the result. Therefore I should be against the general debate that the noble Lord suggested, though I hope that he will realise that I am not trying to hold up proceedings. I would press on him that, if he wants to make progress, he would do better not to go on talking about this and just say that we are not going on to Clause 11 to-night.
§ LORD STONHAM
I accept the noble and learned Viscount's suggestion and will not start the debate on the Question, That clause 11 stand part, to-night.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ 6.57 p.m.
§ LORD DERWENT
I have nothing against Clause 4, though I do not quite see the necessity for having it when Clause 6 is in the Bill. There are certain practical matters which concern the Justices Clerks' Society. The clause says:Where a magistrates' court acting as examining justices commits any person for trial or determines to discharge him, the clerk of the court shall, on the day on which the committal proceedings are concluded or the next day, cause to be displayed in a part of the court house to which the public have access a notice—There are certain practical difficulties about this. In cases of country courts, which meet perhaps once a week, or even less often, and in cases where there is no court-house and the court is in a hall that is occupied by other organisations when the court is not sitting, the public do not have access to the buildings on days other than those when the court is sitting, and it is going to be difficult to post a notice on the next day. Even in larger areas where there are courthouses the courts never sit on a Saturday and the court-houses are closed to the public. If proceedings finish late on Friday night, it is impossible to publish a notice in a place to which the public has access on the next day.
§ LORD LEATHERLAND
I was about to raise a somewhat similar point. My approach is rather schizophrenic. For ten years I was news editor of a daily paper, concerned with getting as 241 much news as possible. On the other hand, for over twenty years I have been a justice of the peace and for about fifteen of these have presided over a court. I do not like the provision that the publication of a notice may be deferred until the following day. I think that it should be published on the day on which the decision is made, so that the defendant, having been discharged, can be relieved of any embarrassment straight away. The consequences of delay are, in daily paper terms, that it may be 24 hours before his innocence is made known through the Press and, in weekly newspaper terms, that the deferring of the posting of a notice for one day may miss that week's edition of the paper and the man remains guilty in the eyes of his neighbours for a further week. If the provision enabling the notice to be deferred to next day could be omitted without any great difficulty, I think that would be a good service to everybody concerned.
§ THE LORD CHANCELLOR
As is well known, Government exist to try to please everybody. This provision about the notice was put in solely to help the representatives of the Press, who asked for something of this kind because they did not wish to sit through lengthy committal proceedings which they could not report, and said they would like to come along, when things were over, and see the notice there telling them what had happened. In most cases there will be no difficulty at all. I appreciate that in the sort of cases adumbrated by the noble Lord, Lord Derwent, there may be some difficulty, though there would seem nothing to stop the requirement of the clause being satisfied by a notice being put immediately outside the courtroom. If so, that would seem to meet the point which has been raised by the noble Lord. We can certainly consider this matter again, but at the moment we do not see the real difficulty.
§ VISCOUNT DILHORNE
I hope that the noble and learned Lord will keep the language as it is. After all, reporters may say (although they have no Whips) that they prefer to come the next morning to read the notice rather than to be kept waiting until 8 o'clock or perhaps later when the notice happens to be put up. Therefore I should have thought that the 242 clause was right. It leaves the option to the magistrates' clerk. If he can, he will put it up the same night, and it is done and is there for someone to look at. I thought that the provision to enable it to be put up next day was meant to be helpful; that he would not have to put it up as late as all that and stay late to do so.
But this raises this question, which perhaps should be looked at. "Next day" is a pretty wide term. If, for instance, there was a 24-hour delay, it would be put up very late the next day and it would not serve a useful purpose. I should like to suggest that the language ought to be looked at again. While giving freedom to put it up on the day that the trial is concluded or the next day, it should still be expressed in the clause that should be put up as soon as it is conveniently possible. That, I think, would meet the situation and would mean that the reporters would not have to hang about until eight o'clock or maybe later at night to find out the result of the case.
§ LORD DERWENT
I appreciate the question of the Press, but what is worrying the justices' clerks is that it is being laid down that if they cannot get it up that night it should be put the next day in a place to which the public has access. The noble and learned Lord the Lord Chancellor has in part answered my point there by suggesting a notice board outside; but that is not always possible. I should be grateful, as the justices' clerks are worried about it, if he will have another look at it before the next stage of the Bill.
§ Clause 4 agreed to.
§ Clause 5 [Privilege of newspaper reports of committal proceedings in libel actions]:
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ LORD BROOKE OF CUMNOR
I have nothing whatever against Clause 5, but there is a small point that I should like to raise. What Clause 5 does, in effect, is to extend the period during which privilege would attach to reports of committal proceedings, and it does it by reference to Section 3 of the Law of Libel (Amendment) Act 1888. That Section 3 says:A fair and accurate report in any newspaper of proceedings publicly heard before any 243 court exercising judicial authority shall if published contemporaneously with such proceedings be privileged.Clause 5 gives, as it were, an extended period to the word "contemporaneously".
What I am wondering about are reports in the Press of notices which have been posted under Clause 4. There may be errors in such notices. It is not unknown that initials get confused or house numbers get confused. It appears to me that the editor of a paper who simply reprints in his paper precisely what has been posted outside the court under Clause 4 should be able to claim privilege for that piece of copying, and should not be liable to a libel action if by any chance an error in identification or address has been made in that court notice. As the Bill stands, I do not think a report of a notice under Clause 4 would be privileged. I suggest that it should be, and I should be grateful if the Government, between now and a future stage of the Bill, could consider the point.
§ THE LORD CHANCELLOR
It seems to me that this is a point which ought to be considered. Frankly, it had not occurred to me, and I do not think I should say very much about it.
§ Clause 5 agreed to.
§ Clause 6 [Duty of examining justices to sit in open court]:
§ On Question, Whether Clause 6 shall stand part of the Bill?
§ VISCOUNT DILHORNE
As we are making fast progress, I should like to raise a question with regard to this clause, and to ask to have explained why it is that we are now seeking to reverse Section 4(2) of the Magistrates' Courts Act 1952. After all, that was a recent Statute, and it was a consolidating Statute. I have not looked it up for some time, and I am not sure whether it was a Consolidation Bill under the 1949 Act of not. Perhaps the noble and learned Lord would be good enough to tell me in due course. The noble and learned Lord the Lord Chancellor referred to the Report of the Tucker Committee in the debate that we had earlier on and summarised a great deal of it. I hope I shall be forgiven if I refer to paragraphs 12, 13 and 244 14 of that Report in some detail. It says in paragraph 12:In 1848 a number of important changes were made in the procedure. The Indictable Offences Act of that year ' consolidated, with such additions and alterations as may be deemed necessary.' "—that is rather similar to what we were discussing earlier this afternoon—the whole law relating to the duties of examining justices, so that such duties might be clearly defined by positive enactment '. It was prompted by Sir John Jervis, the then Attorney-General, and is known as Jervis's Act. Among other things it entitled an accused person for the first time to be present at the examination of the witnesses against him.Then these are the relevant words:It also provided in Section 19, which was the precursor of Section 4(2) of the Magistrates' Courts Act 1952, that the room or building in which a justice or justices took examinations in indictable offences should not be deemed an open court for that purpose and enabled such justice or justices, in his or their discretion, to order that no persons should have access to or be or remain in such room or building without his or their consent or permission if it appeared that the ends of justice would be best answered by doing so.The Report then sets out a passage from Archbold in 1848 commenting upon that section.
Then, if one looks at paragraph 13, one sees that doubts were raised in 1884 about the continuance in force of Section 19 of the Act of 1848, whichwould have created considerably greater stir than they did if committal proceedings at that time had not normally been taken in open court.Paragraph 14 says:The doubts arise in this way. Section 20 of the Summary Jurisdiction Act 1879 had provided that a case arising under that Act or any other Act should not be heard, tried, determined or adjudged by a court of summary jurisdiction except when sitting in open court. Section 50 of that Act defined a court of summary jurisdiction as meaning any justice or justices of the peace or other magistrate to whom jurisdiction is given by or who are authorised to act under the Summary Jurisdiction Acts or any one of such Acts.It then goes on to say that the Law Officers' opinions were taken and, as not unusually happens, that did not entirely resolve the matter; there were different views as to what the Law Officers meant. It says that the conflict between these two sections—Section 50 of the 1879 Summary Jurisdiction Act and Section 19 of the earlier Act—was resolved when the Magistrates' Courts Bill was introduced 245 as a consolidation measure. I want to ask the noble Lord this question. Was that consolidation under the 1949 procedure? If so, it would seem to me that my observation earlier this afternoon, that the procedure under the 1949 Act was pretty wide in its scope, is well justified; because here you could not have the choice between the two conflicting Statutes, one saying that magistrates should sit in open court, and the other that magistrates are not obliged to sit in open court. Here are two conflicting statutory provisions.
On consolidation the Committee decided that it was a correction, or minor improvement, to say that they should not be obliged to sit in open court. Is that the position?—because, if so, it confirms my view that really all the Amendments that were proposed to the Sea Fisheries Bill, which we were discussing earlier this afternoon, could have been done under the 1949 procedure. However that may be, I should like to have this assurance. I think it is correct that this reversal of the consolidation provision under the 1952 Act does not in any way inhibit the court from sitting in camera in those cases in which the Tucker Committee thought it right that the court should be able to sit in camera. I think that those cases are summarised in paragraph 15:…where they are hearingI think that is the well-established practice, but I think it ought to be confirmed that this change of the law made by Clause 6 does not in any way affect that practice.
- "(a) evidence which ought to be kept secret in the interests of national security;
- "(b) evidence from a witness who genuinely fears intimidation if his testimony is made known; and
- "(c) evidence which has for some reason to he taken elsewhere than in the court, e.g. in hospital."
§ THE LORD CHANCELLOR
I do not think I ought to go back to the Sea Fisheries Bill. The 1952 Act was a 1949 consolidation. Of course, one possible view in relation to Press publications is that you can have any amount of Press publications you like, because magistrates will always sit in camera in a proper case. But we know from experience that they do not. I hesitate to say this—the noble Lord, Lord Royle, is not here, so perhaps I may risk it—but they might not perhaps 246 be uninfluenced by the fact that, whenever they sit in camera, they know they are going to get a nasty leading article in the local paper. Whether that is the reason or not, it is very difficult to persuade them to sit in camera. The Tucker Committee very strongly support this. In general they are very much against magistrates sitting in camera; they think they should sit in public. But the question of newspaper reports was a different question.
The position here is that Clause 6 gives effect to the important recommendation of the Tucker Committee, who said that there are formidable objections to examining justices sitting in camera; we do not recommend that they should either normally or frequently do so. It has been the almost invariable practice in modern times for examining justices to sit otherwise than in open court only in the following cases:When they are hearingsometimes, of course, evidence has to be taken, for example, in hospital—and (d) when the publication of the evidence would normally prejudice the fair trial. The reason why (d) will no longer apply is that, in considering whether to sit otherwise than in open court, the examining justices must take account of the fact that reporting will be restricted under Clause 3.
- "(a) evidence which ought to be kept secret in the interests of national security;
- "(b) evidence from a witness who genuinely fears intimidation if his testimony is made known;
- "(c) evidence which has for some reason to be taken elsewhere than in court "—
So subsection (1) replaces the present unrestricted discretion of examining justices to sit in camera, by a requirement to sit in open court subject to any specific provision to the contrary contained in any other enactment, or unless it appears to them that the ends of justice would not be served by their sitting in open court. The saving for any other enactment enables courts to continue to invoke, for example, Section 8 of the Official Secrets Act 1921, permitting the exclusion of the public from proceedings against a person accused of an offence under the Official Secrets Acts 1911 to 1939, on the grounds that the public revelation of part of the evidence could be prejudicial to national security.
247 The discretion to sit in camera if the ends of justice would not otherwise be served will provide, for example, for the kind of cases where a witness is in genuine fear of intimidation, though it would have to be a very strong case. If the court decides that part of the proceedings need to be held in camera, it does not follow that the whole proceedings need be so held. Any decision by examining justices to sit in camera by virtue of the exception in subsection (1) has the effect of overriding an order made under Clause 3(2) on the application of the defendant, because there would be no one present in court able to make the report. Subsection (2) of Clause 3 repeals Section 4(2) of the 1952 Act, which conferred on the examining justices their general discretion to sit otherwise than in open court.
§ 7.16 p.m.
§ VISCOUNT STUART OF FINDHORN
I am not going to compete with the Lord Chancellor, Lords of Appeal and other people who understand these things, but I must say that I am completely mystified on reading Clause 6, which I have done about six or more times. Subsection (1) begins by saying that examining justices shall sit in open court, except in certain circumstances; and then subsection (2) says:Section 4(2) of the Magistrates' Courts Act 1952 (no obligation on examining justices to sit in open court) is hereby repealed.I have never seen a clause or subsection drafted in that way, which just runs into brackets. Why are the brackets put in at all? Why does it not say—it would be clearer—" Section 4(2) of the Magistrates' Courts Act 1952 is hereby repealed "? In any case, subsection (1) and subsection (2) seem to me to be, roughly speaking, contradictory. I think the draftsmanship is abominable, and I do not think I have ever seen this kind of drafting before. It is hardly English. Why not just say, "Section 4(2) is hereby repealed"? It may be better to put it this way, but I simply do not understand it, and subsections (1) and (2) seem to me very contradictory.
§ THE LORD CHANCELLOR
I am sorry about this, but it is not unusual to have the effect of a section put in brackets, to remind the reader what the 248 section being referred to does. I suspect, though I have not checked, that the words "(no obligation on examining justices to sit in open court)" are probably the marginal note to the section.
§ Clause 6 agreed to.
§ Clause 7 agreed to.
§ 7.18 p.m.
§ THE LORD CHANCELLOR moved, after Clause 7, to insert the following new clause:
§ Proof of criminal intent
§ " A court or jury, in determining whether a person has committed an offence,—
- (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
- (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances."
§ The noble and learned Lord said: I was afraid that I might have to deal with this at some length, but emboldened by an observation by the noble and learned Lord, I will deal with it rather more shortly. This arises out of a Report of the Law Commission who, in their first programme, had undertaken to consider the case of D.P.P. v. Smith. The case of D.P.P. v. Smith is, of my lifetime, the decision of the House of Lords which caused more controversy and dissent than any other I can remember. It is, as your Lordships know, the law, in spite of what some thought the effect of Section 1 of the Homicide Act 1957 was, that if grievous bodily harm is inflicted with an intention to do that, and death results, then you are guilty of murder.
§ The question which arises in D.P.P. v. Smith is: Has the intent to be subjective or objective? The learned trial judge put it to the jury as though it were enough to make a man guilty of murder that some other man, some reasonable man, would in the circumstances have contemplated grievous bodily harm resulting in death. The Court of Criminal Appeal put the contrary view and said: "It is the intent of the individual man and it must be looked at in that way". The House of Lords came to a contrary conclusion. The facts of the case, and the reasoning, are fully set out in the Report 249 of the Law Commission which has been published. I believe there is some reason to think that in fact judges have rather avoided applying it. It has been explained by the noble and learned Lord the Master of the Rolls as having in some sense been misunderstood. The Lord Chief Justice of Northern Ireland has said that he does not agree with it.
I suppose it has always been the case that in the Commonwealth certain courts at certain times have a particularly high reputation. There is no doubt that for some years now the High Court of Australia has had a very high reputation indeed throughout the Commonwealth, and of course they, like other Commonwealth countries, have always followed the decisions of the House of Lords. But when it came to the case of the Director of Public Prosecutions v. Smith they said that this was really too much. Sir Owen Dixon, the Chief Justice, said:
In Stapleton v. The Queen we said: ' The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous '. That was some years before the decision in Director of Public Prosecutions v. Smith…which seems only too unfortunately to confirm the observation. I say too unfortunately for I think it forces a critical situation in our (Dominion) relation to the judicial authority as precedents of decisions in England. Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith's case I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept. I shall not discuss the case. There has been enough discussion and, perhaps, I may add, explanation, to make it unnecessary to go over the ground once more. I do not think that this present case really involves any of the so-called presumptions but I do think that the summing-up drew the topic into the matter even if somewhat unnecessarily, and therefore if I left it on one side some misunderstanding might arise. I wish there to be no misunderstanding on the subject. t shall not depart from the law on the matter as we had long since laid it down in this Court, and I think Smith's case should not be used as authority in Australia at all. I am authorised by all the other members of the High Court to say that they share the views expressed in the foregoing paragraph.
After all this criticism the Law Commission have considered the matter, and in the course of a long and reasonable report they come to two conclusions, one of which the Government have accepted
and the second of which they are still thinking about. The one they have accepted is the proposal contained in this clause, and having made that proposal the Law Commissions say:
Our consultations with the judges of the Queen's Bench Division of the High Court of Justice through the Lord Chief Justice, with the Law Officers and the Director of Public Prosecutions, with the Home Office, with the Law Society, with the sub-committee on Criminal Law Reform of the Society of Public Teachers of Law, as well as with individual members of the Bar through the Bar Council, show general agreement with the conclusion reached in paragraph 8 above that the test of intent in murder should be subjective.
This clause is the clause as drafted by the Parliamentary Counsel to the Law Commission to give effect to that statement. I beg to move
§ Amendment moved—
§ After Clause 7, insert the said new clause.—(The Lord Chancellor.)
§ 7.25 p.m.
§ VISCOUNT DILHORNE
I agree with the noble and learned Lord to this extent, that I do not think there has been any case in my lifetime which has been so generally misunderstood as that of the Director of Public Prosecutions v. Smith. I conducted the appeal in that case, and I do not think I misled their Lordships, or led them astray. Nor, as I understand this much-misunderstood judgment, did it lay down that the objective test had to be applied to the intent with which the act which caused the death was done. I do not think it decided anything of the sort.
May I remind your Lordships, even at this late hour, very shortly of the facts of that case, which may be obtained from the Law Reports? The police constable spoke to the accused, Smith, when he was stopped by a policeman on point duty holding up traffic, who told him to pull into the side of the road. Smith commenced to do so, then accelerated and drove away. The police constable held on to the car and either was thrown or somehow got partly across the bonnet of the car. Then, as the car was accelerating, there were four cars coming in the opposite direction. Something hit the back of the first oncoming car, the second car also sustained damage—it was the side of this car that was struck. The driver of the third car said: "A car was coming towards me at between 40 251 and 50 miles an hour "; and his car was struck violently, and the offside front mudguard was dented. There were no marks whatsoever on the car driven by Smith. The only possible inference was that all these marks on the oncoming cars were made by the contact of the police constable's body with those oncoming cars. The driver of a fourth, a "bubble-car", said: "Something came towards me", and he found the police constable's body under his car. And Smith's car did not stop.
The defence put forward at the trial was that this was all accidental; that the car was not driven in that way intentionally at all. That defence was rejected by the jury, and, quite rightly, they did not accept that these three swerves had happened by accident because the man's foot had slipped on to the accelerator. The whole case was argued by me, not on the ground that it was not necessary to prove the intent of the accused but on the basis that the jury were satisfied that the accused had driven this car intending to bump the police constable against the oncoming cars to get rid of him. That was the intentional act.
Once it was established that the act that caused death was intentional—death by grievous bodily harm; it was not suggested there was intent to kill—the only issue then was whether it would be a defence for Smith to say, "In the time available I did not foresee that consequence", or, "I did not intend to do him grievous bodily harm. True, I drove the car in this way so that he would bump into other cars, but I did not intend to hurt him". What is now suggested is that the burden must be put on the prosecution of proving not only that the driving of a car in the circumstances of this case was intentional but also that at the time the car was driven in that way there was either the intention, in a murder case to kill, or to do grievous bodily harm.
There has been a great deal of argument and a great deal of misunderstanding of this case—because I think it is the fact that so often the facts of the case are ignored. The noble and learned Lord the Lord Chancellor said that the facts were fully stated by the Law Commission in their Report. I have given the facts as they are stated in the Law Reports as to 252 how the car proceeded. May I read the summary given in the Report of the Law Commission? It says:The accused, Smith, was driving a car containing stolen goods. It was stopped in the normal way by a police officer on point duty, at which stage Constable Meehan, who knew the accused, approached the car and told him when the traffic was released to draw in to his near side. Instead of doing so the accused accelerated away with the police constable hanging on.There is nothing wrong about that. Listen to this next sentence:After the car had hit three other cars the police constable was shaken off falling in front of a fourth car and receiving fatal injuries.One thing is clear from the evidence in that case: the car driven by Smith did not hit a single one of those other cars. It was so driven, and the jury found clearly intentionally driven, that Meehan's body was put against the other car.
I do not think this clause is necessary. I think in fact it may do harm and cause difficulties, because now, with this clause, if it is enacted in the Bill, when a man is charged with killing someone with an axe he will be able to say, "The prosecution first of all must prove I intended to kill that person with an axe—that the blow was struck intentionally. But they have to prove more than that; they have to prove that I intended or foresaw that the striking of that blow would cause either grievous bodily injuries or death, and I did it so quickly in a loss of temper that I did not form any such intention and did not foresee the consequences of the act." I think that can lead to a lot of difficulty—perhaps more than the misunderstanding in many courts in many fields which the decision in D.P.P. v. Smith has already left. I do not myself regard that decision as their Lordships having been invited to decide or having decided that you applied the objective test of whether or not there was an intent to do the act which caused the death, but that it did decide, and I should have thought rightly, that you applied the objective test of the nature and quality of the act intended.
§ LORD PARKER OF WADDINGTON
May I, as a party to the decision in the D.P.P. v. Smith case, add a word in support of this Amendment? I support it not because I am conscious that the decision in Smith was wrong or indeed 253 that it departs from what the new clause provides. I welcome this clause merely because D.P.P. v. Smith has been so grossly misunderstood that it is time that the law was put back as it was before the misunderstanding arose. On that short ground I support this Amendment. I do not want to go into the facts of D.P.P. v. Smith: I would support everything the noble and learned Viscount, Lord Dilhorne, has said. The trial judge eliminated accident. It was said Smith put his foot on the accelerator without realising it. It was said that the back of the car was so weighted with scaffolding that he could not steer properly. But D.P.P. v. Smith was decided on the basis that the jury had completely eliminated accident and had found that a man drove a car with a body hanging on to the bonnet deliberately into four cars.
§ LORD DENNING
Perhaps as I was also a party to the decision in D.P.P. v. Smith I may say that I welcome this Amendment. It is almost in the same words as I tried to state a proposition in a case called Hosegood v. Hosegood, that you may infer but not that you must infer the natural and probable consequence of the act. The last thing I ever thought was that this House in D.P.P v. Smith were departing from that essential intent. The decision has been much misunderstood. The salient fact was not that this car hit three other cars but that the man Smith, on the evidence, drove the car intentionally with the policeman's body on to the oncoming cars, and once that cardinal essence of the case is understood it seems to me much of the misunderstanding is beside the mark. At any rate, it is a good thing to have the law restated and made clear by this Amendment.
§ Clause 8:
§ Proof by written statement
§ (6) So much of any statement as is admitted in evidence by virtue of this section shall, unless the court otherwise directs, be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud.254
§ VISCOUNT DILHORNE moved, in subsection (6), to leave out "unless the Court otherwise directs". The noble and learned Viscount said: This Amendment raises a point which we discussed a little in a slightly different context. Here we are not dealing with the committal proceedings; we are dealing with the hearing of the evidence. The noble and learned Lord, the Lord Chancellor, in dealing with the committal proceedings, said that the summary would merely be a summary, if you like, of the property stolen. One has no objection to that. But the words here are very general and I am wondering whether they are not too wide in the case of the actual hearing. There is no restriction on what part of the statement the court can direct not to be read out, and the statement itself will be the evidence. I suppose this will apply in jury cases as well as others. I am not very happy if the statement is going to be used in place of oral evidence at the actual trial, by any summary of it being put before the jury, unless the jury are to see the statement in full. I am by no means certain that tinder this proposed machinery they will. There may well be a summary by some official of the written statement without the full written statement coming before them.
§ I think it is important at the actual hearing. I do not mind so much about the committal proceedings, but at the actual hearing, if it is trial before a jury, the jury should be able to see the whole of the evidence and be told the whole of the evidence, and I cannot see that it is right at a trial before a jury to have this power to summarise the evidence instead of telling the jury all of it. Where the trial is not before a jury I should not have thought it necessary to have this provision at all. I should be grateful if the noble and learned Lord, the Lord Chancellor, would look at this point, because I think that in the very width of this wording, although I appreciate the purpose, there lurk several dangers. I beg to move.
Page 7, line 42, leave out ("sinless the Court otherwise directs").—(Viscount Dilhorne.)
§ LORD STONHAM
I am grateful to the noble and learned Viscount for explaining so carefully this point and his 255 view of the difference in powers as compared with when we were discussing committal proceedings. The subsection on which his Amendments are raised requires a statement admitted in evidence to be read aloud at the hearing unless the court otherwise directs. We think that the occasion when the court would so direct would be when there were various formal matters about which a formal statement could be made in order to establish that there was in fact a formal matter. In this clause we are following recommendations which were made in paragraph 15 of the Ninth Report of the Criminal Law Revision Committee on Evidence. May I quote the appropriate passage?:In general a statement tendered in evidence under Clause 1 (Clause 8 of this Bill) should in our opinion he read aloud at the hearing, because the statement takes the place of ordinary evidence and it is desirable that the public, as well as the court and jury, should hear all the facts on which the decision is to be reached. But it seems unnecessary to make this an absolute requirement. Sometimes the court and the parties may think it enough that the effect of a statement or several statements should be summarised by the party who tenders themI think the point about summary was really covered—although this is in a different part of the Bill—by my noble and learned friend in reply to an earlier discussion. The Report goes on:This may be the case, for example, where a series of statements is produced in order to prove the links in a chain of identification. Again, a statement may be long and technical, while its effect could be summarised in a few words. It seems to us right to require that statements should be read aloud unless the court otherwise directsThat, of course, is what we have in this subsection, and it is that which the noble and learned Viscount wishes to delete.
§ LORD STONHAM
Yes. There were discussions with the Press about this because they expressed their anxiety that this discretion which is allowed to the courts in this matter might preclude them from reporting things that they should report, and that evidence might be suppressed in this way. After consideration of that point, Amendments were moved in another place to the original Bill requiring this oral account to be given in the court 256 of any statement or part of a statement which is not read aloud according to the normal procedure required by the clause. But in our view it would not be practicable to attempt to define the circumstances in which the discretion should be exercisable; and since the general object of the provision is to streamline court procedure where this can properly be done, it would be a pity to remove the discretion from the court altogether as the noble and learned Viscount suggests.
We think that the safeguard in this subsection of requiring an oral account to be given of any statement which is not read aloud would appear to be an adequate safeguard against the kind of dangers which the noble and learned Viscount may see in this discretion which we propose to give to the courts. It is not a matter that can be absolutely clear, but we think that the court should have this discretion. However, in view of his request to my noble and learned friend, we will certainly have a further look at this again.
§ VISCOUNT DILHORNE
I do not intend to delay matters on discussing this in any detail, but it seems to me that it gives a wide discretion to the court here, to say, "Do not read out this written statement; just summarise it". The summary may be accurate or inaccurate, and it is often a difficult thing to do. But it is a wide discretion. I can see the need for some discretion, but it is difficult to express it. I should be far happier if it were made subject to the limitation, "Unless the defendant otherwise objects", because I should like the defendant to be able to say, "I want this read out". At present, if the defendant says that, the court is not bound to give way to him; the court may still direct it to be summarised. I think that would be wrong. In the links of identity it may be desirable for the defence to have the written statement read out. I cannot see any difficulty or harm in saying that this could happen only where the defence had not requested otherwise. Then I should be quite content. Would the noble Lord consider that?
§ LORD STONHAM
I am grateful for that further statement by the noble and learned Viscount. The difference really is this. If we accept both of the noble Viscount's Amendments, there will be 257 no discretion at all. If we reject them both, there is in his view too wide a discretion left with the court—or, indeed, he does not know how wide it is, or how that discretion will be exercised, and in some circumstances it may preclude an oral statement which the defendant might wish to have read. These points we will look into.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.
§ Clause 9 agreed to.
§ Clause 10 [Notice of alibi]:
§ 7.45 p.m.
THE LORD CHANCELLOR moved to leave out subsection (4) and to insert—
(4) Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi
§ The noble and learned Lord said: I beg to move the Amendment standing in my name. There are two points here: first, what is being done and, secondly, questions of terminology. As no doubt the noble and learned Viscount and other noble Lords know, the proposal that notice should have to be given of an alibi comes from the 9th Report of the Criminal Law Revision Committee. I do not think there has been any dissent from this at all. This Amendment makes a substitution of one clause for another on what is really a question of terminology. There has been a good deal of difference of opinion among Judges as to the right point of time at which rebutting evidence supporting an alibi should be given, and the reason for the new wording is to make it crystal clear for the future.
§ The most extreme example I can recall was a most unusual case in which a woman was murdered in Portsmouth; a man in London was picked up because he was trying to sell some shoes that did not belong to him, and he started talking 258 to the police about the murder in Portsmouth in terms which suggested that he must have known a lot about it. Other evidence was then obtained against him, and he was prosecuted. He waited until the whole of the case for the prosecution was closed, as he was quite entitled to do, and he then called evidence that he had been at Warren Street Underground station late the night before and was still there in the early hours of the next morning. Having no notice of this, the prosecution could not challenge it, and it was difficult to answer the alibi. On the other hand, the case against him was fairly clear, and the jury disagreed.
§ Then, the second time round, the prosecution tested the alibi. They got a fast car, because the crime was supposed to have been committed by several men in a car. They took the car from Warren Street after the hour at which the accused was last seen at night; they stayed in Portsmouth an hour and then came back, and they got back before the first time that he had said he had been seen in the morning. So the alibi was not at all cast iron. However, the prosecution did not call this evidence until after the evidence had been given on the second trial, and the judge then refused to allow them to call it at all. He said, "You ought to have called it at the end of your case".
§ There was a curious sequel, because counsel for the prosecution wisely wrote an autobiography. In his book he told the story, in terms which, it is fair to say, would lead any reader to think that if only he had been able to call his evidence the man would have been convicted. On the second occasion this man had been acquitted. The man brought a libel action, and the defence was a most unusual one on a charge of murder; namely, "What I said was true, and I will prove it"—and the jury so found about ten years after the event. So it should be left to the learned judge according to the circumstances of the case, and the evidence should be called at any appropriate time according to the circumstances of the case. I beg to move.
§ Amendment moved—
§ Page 9, line 38, leave out subsection (4) and insert the said new subsection.—(The Lord Chancellor.)259
§ 7.49 p.m.
§ On Question, Whether Clause 10, as amended, shall stand part of the Bill?
§ VISCOUNT DILHORNE
I want to ask the noble Lord just one question upon this clause. I can be quite brief. As he knows, I am greatly in favour of this proposal about disclosure of alibi defences, and I think it would be a beneficial change to our law. But I am not quite sure how it will work. Where the accused gives notice of an alibi defence, then I can see that it will work fairly easily. But what bothers me is what is going to happen when he has given a notice but further information comes into his possession and paragraph (c) or paragraph (d) of subsection (2) applies. I do not quite see how it is going to operate then. How and when is it going to be established that he has not complied with the obligations under those paragraphs? Let us take the case where he has given notice that he has further information and he does not give it. He may just call the witness. Are you going to cross-examine the accused when he is giving evidence about what witnesses he is going to call?
I hope that I have made clear to the noble and learned Lord the Lord Chancellor the difficulty I see about the application of paragraphs (c) and (d). I do not want to pursue the matter now and would be willing to discuss it with the Lord Chancellor. But I am worried as to whether there are any "teeth" behind these two paragraphs. I cannot quite see how they will operate at the trial.
§ THE LORD CHANCELLOR
I should have thought that it would work out quite clearly, but of course I should be very happy indeed to discuss the matter with the noble and learned Viscount.
§ Clause 10, as amended, agreed to.
§ 7.52 p.m.
§ LORD STONHAM moved, after Clause 10, to insert the following new clause:
§ Application of sections 8 to 10 to courts-martial
§ ". Without prejudice to section 99(1) of the Army Act 1955 or of the Air Force Act 1955 (application to proceedings before courts-martial of civil rules as to the admissibility of evidence) and to any power to make rules or orders for the procedure of, and otherwise for the trial of offences by, courts-martial, the 260 three last foregoing sections shall apply to such proceedings as they apply to proceedings on indictment subject, however, to such modifications as may be prescribed by regulations made by the Secretary of State, being modifications which appear to him to he necessary or proper for the purpose of the operation of those sections in relation to proceedings before courts-martial."
§ The noble Lord said. I beg to move Amendment No. 9, and with it I should like to discuss Amendment No. 146, in Schedule 6. In doing so I would inform your Lordships that the noble and learned Viscount's estimate of the time that we should take was much closer to actuality than mine. I therefore propose, if this Amendment is accepted, as I hope it will be, to ask that the House be resumed. This will enable us, when we come back to the Bill to-morrow, to start straight away on the noble and learned Viscount's Amendment.
§ VISCOUNT DILHORNE
I should like to say, "Thank you" to the noble Lord. I was not trying to hold up progress on the Bill. In fact, I think that by taking this course it will facilitate progress; although we might perhaps have moved a little more quickly in the last half hour.
§ LORD STONHAM
The object of this new clause, which I now move, is to apply the provisions of Clauses 8, 9 and 10 of this Bill, namely, "Proof by written statement", "Proof by formal admission", and "Notice of Alibi" to courts-martial. By Section 99(1) of the Army Act 1955 and the Air Force Act 1955 the rules of evidence in courts-martial are the same as those in proceedings before courts of ordinary criminal jurisdiction. Clauses 8 and 9 would, in the absence of specific provision in the Bill, apply to Army and Air Force courts-martial but modifications are needed to adapt these clauses to the circumstances of courts-martial. For example, references to magistrates' courts and quarter sessions, to judges, chairmen of quarter sessions and recorders and to solicitors and defendants need to be adapted to refer to their equivalents in court-martial proceedings. Power has therefore been taken by regulation to effect modifications, and Sections 99(2) of the Army Act and of the Air Force Act 1955, which deal with proof of facts by statutory declaration, will be repealed when the modifications are made.
261 Clause 10, which deals with the procedure for evidence in support of an alibi, would not, without specific provision, apply to courts-martial. It is considered desirable that it should, but again modifications are needed. These are similar in nature to those required for Clauses 8 and 9, but in addition the "prescribed period" within which notice has to be given under subsection (1) will need to be extended since the accused is not normally given legal aid until after investigation proceedings.
Proceedings before Army and Air Force courts-martial are regulated by rules of procedure made under Section 103 of the Army Act and Air Force Act 1955. Section 58 of the Naval Discipline Act 1957 makes provision for regulating the procedure and practice of courts-martial by Orders approved by the Queen in Council. Clause 8 could be made to apply to Naval courts-martial by this means, but not Clause 9; and there may be some doubt about Clause 10. The procedure under Section 58 is, however, a cumbersome one for effecting minor modifications, and in any case it would be desirable to make one regulation for all three Services extending these provisions specifically to courts- martial with such modifications as seem expedient to the Secretary of State. I beg to move.
§ Amendment moved—
§ After Clause 10, insert the said new clause.—(Lord Stonham.)
VISCOUNT COLVILLE OF CULROSS
I wonder whether I heard the noble Lord, Lord Stonham, aright about the Naval courts-martial. Was the noble Lord saying that the procedure which is already available is cumbersome and that some other procedure is going to be used? If so, what is that other procedure? It seems to me that there is nothing in the Amendment itself which deals with the Naval courts-martial. If other steps will have to be taken to apply these clauses, I do not think the noble Lord specified what they were. Could the noble Lord assure the Committee that he has given all the substantial modifications which are likely to take place in the case of Army and Air Force courts-martial, and, secondly, that none other than those or purely matters of drafting will be applied to Naval courts-martial?
§ LORD LEATHERLAND
The noble Viscount, Lord Colville of Culross, has spoken of Naval courts-martial. My experience covers only Army courtsmartial—and that was a long time ago, so that things may have altered. But here is a proposal to assimilate the requirements of evidence, as now amended, as between the civil courts and courts-martial. I give one example to show that there may be difficulties in this matter, although my noble friend may be able to assure me that the instance I mention is not covered. I remember, nearly fifty years ago, when I was a company sergeant-major in France, putting a man on a charge for being drunk. While he was in the guardroom, I required him to walk a chalk line and pick up some pennies. It was found at the hearing that under the Army Act, according to Army law, one was not allowed to put an alleged drunken man through a test, whereas under civil law he would be liable to be put to such a test. So the man was found not guilty and was discharged, and I hung my head in shame. I am wondering whether this assimilation of the admissibility of evidence as between civil and military courts means that Army law is going to be altered to bring it into conformity with civil law, or whether civil law is going to be altered to bring in into conformity with Army law, because in some matters there is a very distinct difference as to the admissibility of evidence. If anybody wants to get drunk to prove it, that is an example I should like to offer him.
§ LORD STONHAM
I was sorry that I was doubly unclear, both to my noble friend and to the noble and learned Viscount, Lord Colville of Culross. I can deal with his question at once. The "cumbersome procedure" to which I referred is that of making Orders in Council, and these three clauses, Clauses 8, 9 and 10, will be applied to Naval courts-martial with only the necessary modification. So far as my noble friend Lord Leatherland is concerned, it seems clear to me that we are applying Clauses 8, 9 and 10 to the Army, Air Force and Navy courts-martial, but without prejudice to subsection (1) of Section 99 of the Army Act 1955 or the Air Force Act 1955. I cannot tell my noble friend what would be the precise circumstances about the case 263 which involved walking the chalk line. I would say that it would not make much difference. It is a question of whether there was proof by written statement, or whether there was a formal admission, or whether there was a notice of an alibi. If none of these three things applied, it could not possibly affect the case which we had in mind. I hope that I have covered both objections.
§ LORD STONHAM
We have made such excellent progress that I beg to move that the House do now resume.
§ Moved, That the House do now resume.—(Lord Stonham.)
§ On Question, Motion agreed to, and House resumed accordingly.
§ House adjourned at eight o'clock