§ 3.53 p.m.
§ Debate resumed.
§ LORD GARDINER
My Lords, I listened with great interest, and I think considerable advantage, to the speech which was made by the noble and learned Viscount, Lord Dilhorne, and I agreed with a great deal of what he said. I should like, first, to congratulate this 1565 Committee, which is one of which I have always had the highest opinion, on completing their really Herculean task lasting eight years. I was a member of the Committee on the Practice and Procedure of the Supreme Court, which had to consider every aspect of civil procedure, how to simplify it and how to reduce the cost of litigation. We took five years and I personally attended 330 meetings. But we had one advantage over the Criminal Law Revision Committee; that is, that at the end of the five years we made innumerable recommendations nearly all of which were unanimous. The Criminal Law Revision Committee's task has not been simplified by the degree of conflict on so many important questions among the members of the Committee.
The Report has met with a good deal of criticism; in particular, in relation to four matters: first, Clauses 1 to 5 and 9—abolition of the right to silence, being replaced by nothing except some Home Office circular; secondly, Clauses 17 to 21—corroboration; thirdly, Clauses 3, 6 and 7—the admission in many cases, where not now admissible, of the previous convictions of the accused, however old, to show a disposition in the accused to commit that kind of crime; and fourthly, Clauses 30 to 41—hearsay evidence. I spent nearly all of Christmas studying the Report. I cannot say that I found it an easy document to read. It is in a book of 258 pages, the Report itself occupying 284 paragraphs. There is a draft Bill of 47 clauses and two Schedules, with 179 subsections and 46 pages of notes on the subsections. There is no index and there is no summary of recommendations.
Having read this Bill, I do not understand how magistrates will ever understand so complex a piece of legislation. I think there was only one member of the Committee with experience of the magistrates' courts. Of course, the Committee said that they recognised that what they were recommending would have to apply in magistrates' courts as well as in Crown Courts. I am not surprised that the Law Society has not yet been able to complete its memorandum on the Report; I am still less surprised that the Magistrates' Association has not yet been able to complete its memorandum on the Report. It is of course true that magistrates will be advised by their clerks, but 1566 a clerk does not, unless invited to do so, retire with them when they consider their decision. I would venture to express the hope that Her Majesty's Government will not themselves come to any conclusion until they have at least received the reports of the Law Society and the Magistrates' Association.
The Report deals with what the Committee call matters of principle and matters of detail, and on majorities what they say in paragraph 23 is:Where there have been disagreements on important questions of principle, this is shown in the report. Some of the recommendations on matters of detail have been made by majority decisions, but in general these cases are not specially mentioned.So we do not know on any question of detail whether or not it is a majority decision. On matters of principle, we do not know, in most cases whether the majority was of 13 to 1 or of 8 to 6, and it would have interested those of us who know all the members of the Committee to know which members of the Committee thought what. We are told the figures in six cases—paragraph 37, "with one dissentient"; paragraph 52, "A minority of three members"; paragraph 63, "Three members are in favour of … this course"; paragraph 245 refers to "a substantial minority"; paragraph 276 refers to "a large majority"; paragraph 279 refers to "The great majority"; but there are 15 other cases of matters of principle where they say that there were majority decisions, although there is no indication of the size of the majority.
Comment has been made, perhaps quite naturally, on the experience of those who submitted memoranda on the Report. So for the Record it is perhaps worth mentioning that the Committee consisted of eight Judges, three Professors of Law, the Director of Public Prosecutions, the Chief Legal Adviser to the Home Office, no barristers and one solicitor. When we come to the actual Committee which prepared the somewhat devastating Report of the Bar Council, that consisted of seven Queen's Counsel, including one former Treasury Counsel and one former prosecuting counsel to the Inland Revenue, both at the Central Criminal Court, three senior Treasury Counsel at the Central Criminal Court, one Treasury Counsel at the Inner London Crown Court, five other junior counsel, four of whom have considerable seniority in 1567 court and extensive experience of appearing for both prosecution and defence. The Justice memorandum does not state who formed the Committee which prepared their report, but the noble and learned Lord the Lord Chancellor wrote to ask them so they told him. I need not bother about the names, but they include six banisters, three of whom are recorders, five solicitors, including the chief prosecuting solicitor of the Port of London Authority, the chief prosecuting solicitor for Hampshire, a serving stipendiary magistrate, a clerk of the justices, a justice of the peace and one academic lawyer.
I should like to deal first with matters with which the noble and learned Viscount has not dealt, and with which nobody else may deal, because they are matters which are not in the Report at all, though I might have expected them to be. I believe that it should have started with a short summary of what is the right of silence, how it arose and whether it ought really to have any application to-day.
May I read a very short summary of its history, which I take from a judgment of the Supreme Court of the United States in a case called Miranda v. Arizona. I read from Volume 384 of the United States Reports at page 458:We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times. Perhaps the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject … He resisted the oath and declaimed the proceedings stating:'Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so'…On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England. These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights. Those who framed our 1568 Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that 'illegitimate and unconstitutional practices get their first footing… by silent approaches and slight deviations from legal modes of procedure' … The privilege was elevated to constitutional status and has always been as broad as the mischief against which it seeks to guard' … We cannot depart from this noble heritage.Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a noble principle often transcends its origins', the privilege has come rightfully to be recognised in part as an individual's substantive right, a right to a private enclave where he may lead a private life. That right is the hallmark of our democracy' … We have recently noted that the privilege against self-incrimination—the essential mainstay of our adversary system—is founded on a complex of values … All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government—state or federal—must accord to the dignity and integrity of its citizens. To maintain a 'fair state-individual balance', to require the government 'to shoulder the entire load', … to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth… In sum, the privilege is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will'.My Lords, that case was decided in 1965. Four cases were taken together. They were all cases of alleged confessions obtained in police stations. In three cases, the man had been arrested and was technically in custody; in the fourth, he was not. As your Lordships know, though it might be the next thing coming, we do not have the right to detain people for questioning. This, of course, is why the Press refer to people going to police stations as "helping the police in their inquiries". In Northern Ireland, of course, we have this right under the Special Powers Act; otherwise in this country we do not have detention for questioning.
Another thing which is not in the Report at all, to my surprise, is any express recognition of that fact, because I should have thought that if the right to silence is abolished then everybody will be strongly advised, certainly by the civil rights bodies, in no circumstances to go to a police station to be interrogated. No inference could be 1569 drawn from that under the draft clauses of the Bill, as I understand it.
What the court actually decided in the Miranda case was this:1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way"—that covers the person who voluntarily goes to the police station—unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination …1570
- '(a) The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice …
- '(b) The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system and guarantees to the individual the "right to remain silent unless he chooses to speak in the unfettered exercise of his own will", during a period of custodial interrogation as well as in the courts or during the course of other official investigations.…
- '(c) The decision in Escobedo v. Illinois … stressed the need for protective devices to make the process of police interrogation conform to the dictates of the privilege….
- '(d) In the absence of other effective measures the following procedures to safeguard the Fifth Amendment privilege must be observed: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court he must he clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him …
- '(e) If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present …
- '(f) Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his right to counsel …
- '(g) Where the individual answers some questions during in-custody interrogation he has not waived his privilege and may invoke his right to remain silent thereafter …
- '(h) The warnings required and the waiver needed are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement, inculpatory or exculpatory, made by a defendant …2. The limitations on the interrogation process required for the protection of the individual's constitutional rights should not cause an undue interference with a proper system of law enforcement, as demonstrated by the procedures of the FBI and the safeguards afforded in other jurisdictions".They in fact had a lot of evidence from the F.B.I. that the F.B.I., in contradistinction to the State Police, always followed these practices, but it did not lead to their not being able to prosecute people or to their not being able to obtain convictions.
My Lords, I suppose the first test that anybody considering the criminal law of another country would probably apply is what happens when the citizen goes to a police station; because, of course, if the police are once in a position to know that they do not have to produce any evidence that the person committed any offence as long as they can get a signed confession out of him, the pressures on the police are very great.
The next background factor which I think we ought to take into account is that, while I still believe that the British police are the best in the world, they are also, of course, the most powerful and least controlled. Where a criminal offence is committed here, the police of course interrogate suspects; they decide whether or not there is to be a prosecution; they decide, if there is to be a prosecution, who is to be prosecuted and, most important, what the charges are to be and what witnesses are to be called; and they prosecute, sometimes themselves and in other cases by engaging solicitors and, of course, in the largest cases, counsel.
I made a very stupid slip when I referred to the British police because I do not mean the British police at all: I mean the police of England and Wales. If a crime is committed in Scotland, the police of course investigate the crime; they interview suspects; they do not decide whether there is going to be a prosecution or not; they do not decide who is to be prosecuted, and they do not decide what the charges are to be. They do not decide who should be called as witnesses; they do not prosecute. All these are functions of the procurator fiscal. For three or four years, Justice has been pressing the powers that be to get us to go over to the procurator fiscal system. The Committee of which the noble Lord, Lord Hunt, was chairman recommended that Northern Ireland should go over to the 1571 procurator fiscal system; and this has been done—except that he is not called the procurator fiscal and the police can still themselves prosecute in very minor cases.
When I said that the police were the least controlled—I am comparing them with police in European democracies—I meant that they are the only police force in a European democracy which is not a nationalised police force under the orders of a Minister, usually the Minister of the Interior. As the House knows, if you think of a way to improve police procedure and you "sell" it to the Home Secretary and he says, "That is a good idea; we should change that", he must add, "I cannot do anything. All I can do is to put it before the Chief Constables' Conference"—because the policeman is not an employee. Whenever we have a Bill on employment, we must have a special clause for the police. They are nobody's employees. The office of constable is a public office and the only person to whose orders they are subject is their own chief constable.
I spent all Saturday in the court of the noble and learned Lord the Lord Chief Justice at a conference called by Justice on the Report of the Criminal Law Revision Committee. We had the pleasure of having there about 120, not only members of Justice but representatives of the Law Commission, the police, the Home Office, the magistracy and so on. We had the great advantage of being addressed by two members of the Criminal Law Revision Committee, Lord Justice Lawton and Professor Glanville Williams and also by Monsieur Simon, who, as is apparent from the Report, was seen by the Committee. The House may remember that when the Report was published he wrote a letter expressing regret at a number of the proposals. He explained to us that in France, for example, the ordinary police do not interrogate at all. All the interrogation is done by a highly trained body of interrogators working under the procurator. The moment the prosecution starts, the police then come under the orders of the juge d'instruction. If there is to be further interrogation, he decides the nature of it and his orders are all under appeal. Monsieur Simon's strong view was that no one can be safetly trusted with the 1572 enormous powers which the police would have in this country if the right of silence were abolished in the way proposed and the Judges Rules were not made statutory but depended upon some Home Office circular.
The dangers are set out in the views of the Minority on this first main point. In paragraph 52 they say:(i) That the police should be able to question suspects in custody is now generally thought to be necessary for the due administration of the law; but the practice is fraught with dangers. In the first place there is the danger of the use of bullying and even brutal methods by the police in order to obtain confessions. Examples are the Sheffield case in 1963 and the Challenor case in 1964. These incidents are attributable to a small number of 'black sheep' in the police force. However rare their occurrence may be, every effort should be made to erect safeguards against them. Our arrangements should not depend upon the good faith of everyone concerned in the administration of the law. Perhaps a provision for the electronic recording of interrogations would not always eliminate the use of 'third degree' methods by officers who are tempted to use them; but the knowledge that a recorder is running during an interview would surely exercise a deterrent effect. It is of great importance for the police themselves that any public suspicion of their practices should be allayed. In America misconduct by the police has been partly responsible for the alienation of sympathy of the public from the police, which leads the public to refuse to help the police with information, and so greatly increases the difficulty of enforcing the law. Also, every proven instance of third degree by the police, or credible allegation of it increases the suspicion with which juries regard the ordinary confession, which in fact is very likely to be true and properly obtained.(ii) The minority argue that the use of tape recorders may help to reduce the occasions on which the police are tempted to fabricate confessions. As with the use of violence, it is impossible to assess the extent to which the police at present commit perjury, but there is a widespread impression, not only among criminals, that in tough areas a police officer who is certain that he has got the right man will invent some oral admission (colloquially known as a 'verbal') to clinch the case.They then cited the passage from the Royal Commission on the Police, quoted by the noble and learned Viscount. The Report continues:If the accused alleges that the evidence against him is perjured, he is not likely to be believed, and the mere making of the allegation by the accused in giving evidence enables the prosecution (under the present law) to elicit damaging facts relating to his previous record.(iii) Short of using violence and perjury, the police may get confessions by the use of various kinds of persuasion, which is all the more effective when the suspect is isolated 1573 from his friends. The present position is that the courts do not exclude evidence of confessions merely because they were obtained by questioning at night or in the small hours. In a murder case in 1963 the police started to question a suspect at about 2 a.m. and obtained a confession at 5.15 a.m.; the confession was admitted in evidence. In 1962, a man was questioned in a Birmingham police station for 10½ hours and was in that time given only one cup of tea; a conviction obtained by means of the resulting confession was sustained on appeal, though on this occasion the appellate court spoke severely about the conduct of the police. It is demonstrated from time to time that even ordinary questioning can produce false confessions, but the risk is greatly increased if oppressive methods are used. Often there is a conflict of evidence between the accused and the police as to the time and duration of questioning. Electronic recording might reduce the conflict …(iv) A more subtle danger lies in the way in which confessions are generally taken. Most written statements produced in evidence are not in the suspect's handwriting and absolutely in his own words. As a result of questioning, the police officer may write a narrative which is in part a blend of question and answer. The statement reads as though it was volunteered by the suspect; but in fact it may have consisted of a monosyllabic answer to a leading question asked by the officer with one or more subordinate clauses. Since the statement does not distinguish between question and answer, one cannot tell from the statement what facts were suggested to the suspect by the way in which the question was worded. And the written word does not reproduce the inflection of the voice upon which meaning may depend. One may not even be sure that the officer understood what the suspect said, or that the suspect understood the written statement when he read it through or had it read to him. His signature is not a guarantee that the written statement exactly reproduces what he said.(v) The possibilities of error are multiplied if, as often happens, the statement is not reduced to writing at the time and signed by the suspect. The investigating officer may simply embody what he regards as the kernal of the suspect's statement in his notebook. This notebook will be entered up after the interview, and the note may represent only a very small part of a long interrogation. It may be months before the case is heard, and by that time the officer may have no memory of the interview beyond his written note. If there are two or more investigating officers, they are allowed to agree their evidence together before writing up their notes; this practice was approved by the Court of Criminal Appeal in 1953. The officers may even prepare a joint note. If they are inclined to stretch the case a bit against the accused, perhaps because he has a record' and appears to them to be guilty, they know that they will be able to back each other up at the trial and will be virtually impregnable from attack.That being the situation to-day with the Judges Rules, I should have thought that it is not the right time to abolish the right to silence; certainly not unless and 1574 until an independent record (not, I think, kept by even a senior police officer) can be taken of what really goes on in the course of an interrogation.
The next point on which I find surprising silence—I do not think there is any reference at all to it in the Report—is the right to see a solicitor. The Judges Rules had preambles. Principle C is this: that every person at any stage of an investigation should be able to communicate and consult privately with a solicitor. This is so even if he is in custody, provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so. As your Lordships now know, this is an absolute right in the United States of America.
In June last, the Criminal Law Review published a survey based on interviews with a random sample of 134 defendants in cases tried at assizes or quarter sessions, all of whom had launched an appeal to the Court of Appeal, Criminal Division. Each was asked whether he contacted a solicitor when first taken to the police station. Of the 134, 15 said they had; 108 said, "No"; the remaining 11 said that they had not been taken to a police station. The 108 who said, "No" were then asked, "Did you ask the police to allow you to speak with a solicitor? If so, what did they say?" Of these, 42 said that they had asked but had been refused. These 42 were 74 per cent., therefore, of the total number of 57 who asked to be allowed to speak to a solicitor. One defendant said: "I asked but they did not let me"; one was asked whether he had a solicitor and on replying, "No," the police said, "Well then you cannot contact him, can you?" Another was told that he could use the 'phone to call the solicitor but there was no 'phone. One was told, "You have been looking at too many films"; another, "If you try to be funny, we can be funny too, and throw the book at you." That does not sound as if that existing right was working very well. I think the reason is simply because—this point is made in the Justice report—the police do not in so many cases in fact comply with the Judges Rules and the judges do very little to make them.
1575 There is one point, my Lords, which all the bodies who have commented so far are agreed about; that is, that they strongly disagreed with the opinion expressed by the Committee because it is an opinion. The Committee did not, as I understand it, have any research work done and they do not state the grounds on which they are of that opinion; they express the opinion that too many hardened professional criminals were being acquitted when they ought to be convicted. I will not take up time reading the passages, but the Bar Council in their summary, paragraph 7 and later in paragraphs 60–68; Justice in paragraph 5; the Society of Labour Lawyers in pages 9 and 10 and the London Criminal Court Solicitors' Association page 2, all say that it is quite contrary to their experience.
Since the Criminal Law Revision Committee's Report a research has been published by the Oxford Research Group who inquired into 475 cases over about a year at assizes and quarter sessions round Oxford. There were, I think, acquittals in 173 cases. They discussed these cases with the prosecuting lawyers; they discussed the cases with the defence lawyers; they discussed the cases with the police and, in some cases, with the judges. The first surprise was to find that in 30 per cent. of the cases there could be no question of an unduly sympathetic jury, because in no less than 30 per cent. of the cases the jury were directed by the judge that they must acquit because there was not the evidence to prove the case. It is part of the fun of this life that one goes on learning even in old age, but what surprised me—this is something completely new to me; I wonder whether it is completely new to most lawyers—was that in 25 per cent. of cases where there were acquittals the police said that they had not expected to get a conviction, they were prosecuting for policy reasons. My Lords, that is something quite new to me, and I should like to ask the noble and learned Lord the Lord Chancellor or the noble Viscount, what does this really mean? Are they cases where, because the police do not like a man, they prosecute him to teach him a lesson, or is it because they want to get him in the dock to ask him questions? Or does it mean that there is some crime which is 1576 becoming rather prevalent and they thought it about time they prosecuted somebody, even if they did not succeed in getting a conviction? It is a very astonishing to me that as high a proportion as 25 per cent. of the cases should be cases in which the police never expected to get a conviction and were simply prosecuting for policy reasons.
§ THE LORD CHANCELLOR
My Lords, it is, of course, not surprising to me, nor to the Oxford researchers who explained in the pamphlet exactly what they meant. One of the things they meant was that in a number of cases the police received complaints from people and felt that the complaints were of a sufficiently serious character that a court ought to decide them. They might form their own view about which way the court would decide. That is one of the things the researchers meant when they talked about "policy reasons". I cannot answer about the police, because this is a research document made by an independent body of researchers.
§ LORD GARDINER
My Lords, I am very much obliged to the noble and learned Lord. Then we learn that in 11 per cent. of the cases either the witnesses went back on their proofs or the evidence simply was not good enough.
We also had some rather sensational figures from Sir Robert Mark, for whom, if I may say so, I have the highest regard. I should like (perhaps I ought to address this observation primarily to the Home Office, or to the noble Viscount, Lord Colville of Culross) to quote a comment on Sir Robert Mark's figures, about the number of people he thought were wrongly acquitted, made by an American lawyer, but he does not give his source. If I may just read it and then ask whether at some time the noble Viscount can tell us whether it is right, he says, dealing with 6,000 acquittals:Quite apart from the fact that this figure must include all those who were wrongly charged, those where there were inadequate evidence and those where for some reason of law the judge directed an acquittal, the figures are distorted because all that was recorded was the man's plea and, where appropriate, acquittal, on the principal offence with which Fe was charged. Yet it is quite commonplace for a suspect to appear on several charges in decreasing order of seriousness. It is equally commonplace for a man to plead not guilty to all charges, to be acquitted of the most serious one but to be convicted on some lesser 1577 offence. In an over-simplified example, a man might be acquitted of manslaughter vet gaoled for dangerous driving. In Mr. Mark's system he would appear as an acquittal. The figures quoted by Mr. Mark were in fact assembled rather hastily by the Home Office to deal with a Parliamentary Question. By this measure a high acquittal rate may really be nothing more than the result of British charging practice, a practice which involves putting the accused down for several charges including the most serious conceivable one and then leaving the jury to resolve the question of what charge he is really guilty on. Whereas, as is often the case, the most serious charge is often not justified by the evidence and the judge must instruct the jury to acquit on that charge—
THE MINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS)
My Lords, will the noble and learned Lord, Lord Gardiner, tell us what he is quoting from?
§ LORD GARDINER
I am quoting from a lecture (I will let the noble Viscount have the paper) delivered in America and kindly sent to me by my noble friend Lord Ritchie-Calder. The lecturer began by asserting that President Nixon was certainly elected on a strong law and order ticket (the lecturer understood that Mr. Heath was elected on other considerations), and referred to the Miranda case. He pointed the contrast between the judges in America in this field of civil liberties and the extent to which the lecturer thought our civil liberties might be put in danger by the Report of the Criminal Law Revision Committee.
My Lords, I want to deal with only one more point; it is one that naturally concerns me in a sense, most. I refer to the proposal that evidence about previous convictions may be given, to show a disposition. The Society of Labour Lawyers—and I am glad that the learned Viscount was interested in their report—say in their report:The Committee"—that is the Criminal Law Revision Committee—after a lot of hesitation decided to preserve the substance of the common law rule that evidence showing a disposition to commit the kind of offence charged is in general inadmissible but to relax it in one important aspect. In effect the Committee recommend that where the act is admitted evidence of previous bad character can be admitted to prove the intent of the accused. Thus in the case of a man charged with a trivial touching of a woman with an alleged indecent observation amounting to an indecent assault in law, the prosecution could prove a conviction years ago for rape. The danger here is that the conviction may 1578 have been for an offence out of all proportion in its gravity to the offence being actually tried.The recommendation that previous convictions be admissible in this situation assumes outstanding importance when it is realised that this might happen in a high proportion of cases. The study conducted by the Oxford Penal Research Group showed that in no less than seven out of ten cases where the accused pleaded not guilty the defence was a lack of criminal intent or knowledge rather than of involvement in the affair.… It appears from that study … that of the 80 defendants who admitted to being at the scene of the crime but denied that they had the necessary criminal intent, 38 or about half had previous convictions. If these figures are typical of the position in the country generally (and in the absence of any evidence to the contrary, it must be assumed that they are), previous convictions would be admissible in about one-third of all trials. This is a very substantial proportion and means that this proposal would have an extremely far-reaching effect on the course of trials.In this context it is noteworthy that the Committee said it was divided on this proposal and that it constituted a compromise. The evidence of the Oxford study was not before the Committee and it is an open question what view it would have taken if it had appreciated the significance of the question in terms of the numbers of cases that would be affected by its recommendation.In our view this proposal is highly dangerous. There is a widespread feeling in this country that previous convictions should not be generally admissible to prove guilt—because of the probability of undue prejudice in the mind of the jury. When prior to the publication of the Committee's Report there were suggestions that it might recommend the general admissibility of previous convictions, the Home Secretary went out of his way to the suggestion in the House of Commons apparently in order to allay public disquiet. Yet if the Oxford study is representative this is precisely the effect of the Committee's proposal. In our view the dangers of such a change in the rules of evidence would outweigh the possible advantages.The other bodies concerned, the Criminal Courts Solicitors' Association (pages 5 and 6) and the Bar Council in their Report (paragraphs 10 and 12 of the summary, and more extensively in paragraphs 87 to 125), feel equally strongly about this matter.
My Lords, there are three other points that I should make about this. The first is that the Criminal Law Revision Committee did not know of the research work which, through the courtesy of the Home Office, my committee has done in this field and which, the House may remember, showed that if the man had been convicted, say, of dishonesty, and had gone straight for 10 years, he was slightly less 1579 likely to get into serious trouble than a man of hitherto unblemished character. Whether that evidence would be admissible before a jury, or whether they would assume, "Give a dog a bad name, and hang him", I do not know.
Secondly, again I am concerned about this aspect in relation to magistrates' courts—and I think the Criminal Courts Solicitors' Association say the same. There was only one member of the Committee, I think, familiar with the work of the magistrates' courts. The others were very experienced in the work of the Crown Court. In the Crown Court it is common practice if there is a dispute as to whether an old conviction is admissible under these new proposals—whether the other conviction is for the same kind of offence, and so on—for the argument to take place in the absence of the jury. But what happens in magistrates' courts? Do you have this argument that the magistrates have to decide first, no doubt on the advice of their clerk, whether these old convictions are admissible or not? If they decide that they are not admissible, how are they to forget them? This point does not seem to have occurred to the Committee.
Finally, what shocks me most on this matter is what the Committee say in paragraph 99. They refer to,Where proof of a conviction …".Now, of course, the Bar Council strongly take the point that it ought not to be the conviction which counts; it ought to be the misconduct in question, what the man actually did. That may appear from the conviction, but it is important to see what he actually did previously. But this paragraph says:Where proof of a conviction is admissible this will be conclusive evidence that the accused committed the offence to which the conviction relates.Later, the Committee say:We gave a great deal of thought to whether the accused should be able to dispute the correctness of the conviction admissible under our proposals but we decided that this would be impracticable.My Lords, there is no system of justice which can possibly guarantee that no innocent person will ever be convicted. It is bound to happen. Your Lordships may have read in the papers only the other day of the case of a man serving three to five years when substantially the 1580 only evidence against him was the evidence of two senior police officers that he had confessed. Questions are now being raised, because both of these officers have since been convicted of conspiracy, and one of corruption. You may have a thin case as to identity or something else, and there is only one witness for the prosecution. If you go to the Court of Appeal, naturally they say: "It is a thin case. It would not have been surprising if the jury had acquitted. But they saw the witnesses, and we did not, and we cannot substitute our view for that of the jury."
Here you have a man who has been wrongly convicted. There he is, and he has now got a photograph with the police. If this man is, by chance, wrongly charged with an offence of that character again, he is not to be allowed to tell the jury: "I have now got further evidence, and I can prove to the hilt that I was wrongly convicted." I thought that this Committee was all for breaking down rules for things inadmissible and letting in the truth. Yet here is this man, the truth being that he was wrongly convicted the first time, who is not allowed to say so. And by the time he has twice been wrongly convicted I should think his cause would be hopeless, because both previous convictions will be available on the third occasion.
Therefore, my Lords, I am not happy about the four spheres to which I have referred. I am most unhappy about the abolition of the right to silence. I agree with M. Simon that nobody, whatever splendid body of men they may be, can really be trusted with sweeping powers in a sphere the kernel of which really is the temptation not to bother to call the evidence that the man committed the crime, but more and more to rely on confessions in police stations. We all know what happens in police stations in some other countries. My second principal objection is to this provision about old convictions. It is, I think, highly prejudicial in the ordinary juries appointed, although if they knew the contents of the research done by the Home Office, they might think otherwise. However, they do not. I am sure that the Government will give the most careful consideration to the points which I have ventured to mention, among all those others which they will hear.
§ 4.39 p.m.
§ THE LORD CHANCELLOR
My Lords, although crime and criminal law and procedure is a matter for the Home Office, I think it would be wrong to let a debate of this kind pass without some word from the Lord Chancellor, who has a somewhat different brief to follow. The first thing I want to say is that it is, after all, a little important that we should try to get a sight of the wood and not lose ourselves in a thicket of trees of one sort or another and of greater or lesser dimension. We all know the story of the three men who were asked to write a book about an elephant. The Englishman wrote The Elephant and How to Hunt Him. The Frenchman wrote l'Eléphant et ses Amours—a very nice little pamphlet—but the German wrote Prolegomena to the study of the Elephant in 1,415 words. I am afraid there is a danger that we are now developing the German technique in relation to this Report.
I want to talk rather generally about this subject and I should like to make this a balanced and unemotional debate. If I appear to lean a little to one side or the other, it is simply because I am trying to say that the other side has not yet been sufficiently stressed in the course of public discussion. I think we can start by agreeing on a number of points. The first is that on the whole—and I am going to be fairly critical in my remarks—we have a system of criminal trial in this country of which we are justly proud. No one, I think, will want to say anything, however critical, which would try to overthrow that fundamental truth: we are proud of our system of criminal justice in this country.
In relation to the Committee's Report which is now under discussion, we must remember that the Government have promised not to enact any of the recommendations, and still less the whole of them, until they have heard the views of Parliament. That of course means that until legislation comes—and one of the purposes of my speech is to indicate that it must come at some stage—it will not reflect the views of the Committee but the views of the Government, after taking into account the kind of speeches to which we have listened and to which I trust we are going to listen in the course of this debate.
1582 The next thing I want to say is that the advantages of our system are very great, and they are advantages to which we all want to hold. It is as well to remember what they are. The first is that we have an uncorrupt and independent Judiciary, and the fact that we have it is due in very large measure to the tight discipline and the high traditions of the profession from which the judges are drawn. Secondly, we have a system of trial which disposes of cases even now, when it is slightly under strain, more rapidly than any other in the civilised world—and that is a very great advantage, because justice delayed is justice denied. May I say, in parenthesis, that one of the disadvantages of the juge d'instruction system is that it takes a great deal longer than the system which we have developed. I say that in parenthesis, because some zany in one of the weekly papers accused me of wanting to introduce the system—indeed that I have long advocated it—of juge d'instruction into this country. It is a pure figment of the imagination.
Thirdly, we have the presumption of innocence, rigidly enforced at first instance and jealously guarded by the Court of Appeal (Criminal Division). If anyone were to suggest that there is any single person in this country in a responsible position, on the Committee or off it, who would desire to tamper with that, I should believe him to be talking nonsense. Then we have trial by jury—admittedly the standard method of trial in serious cases. I think it is worth reminding the House, as the noble and learned Lord, Lord Gardiner, did last week, that 98 per cent. of the crime in this country is dealt with by lay magisstrates and a handful of stipendiaries in magistrates' courts. May I say, again in parenthesis, that when we are talking about criminal law and procedure the rather grandiose speeches which are probably going to be delivered are really directed towards a handful of rather serious cases. In nine cases out of ten when you are talking about the criminal law, you are really talking about yourself when you park on the wrong side of a double yellow line, or something of that kind. Some of the things which are said about the right to silence as regards previous convictions, and so on, look a bit funny when they are related to what is actually going on in magistrates' courts 1583 in 98 per cent. of the cases. This leads me to say that I somewhat regret, not the two speeches which have been delivered to your Lordships' House, which have been unexceptionable in that regard, but some of the rather rhetorical and emotional approaches to this subject which have been made in the course of public discussion.
What I want to say this afternoon is that in spite of these advantages—and they are many, they are great and we must stick to them—there is really no justification for complacency. There is no field of law, in my belief, more urgently in need of rationalisation, reform and ultimately codification than criminal law and procedure. I believe its rules to be artificial, complex and, in some fields, almost if not entirely unintelligible. Quite apart from the verdicts of juries which are sometimes open to criticism, when a conviction is quashed by the Court of Appeal (Criminal Division) and an accused person gets off, he gets off in many cases not because he is innocent (which may or may not be the case) but because the judge has failed to state the law accurately to the jury. This happens not infrequently, and I believe we should sometimes ask ourselves whether this is not partly due to unnecessary complexity in the law which the judge is compelled to state. The status quo which we are discussing is almost all judge-made. It has been made by judges at different times during our history on the basis of precedent and to meet legal and social conditions wholly different from those which now obtain; and when Parliament has intervened, as it has from time to time, it has almost always intervened on an ad hoc basis—sometimes (as in 1898) by imposing rules a shade more artificial and illogical than those which have been thought out by the judges from time to time.
In the meantime we must remember that we are living in an age of increasing crime. I believe he would be a bold and possibly optimistic man who could see an end to it. We cannot therefore, in these circumstances, leave things exactly as they are, indefinitely trusting to good fortune and a serene belief that there are an infinite number of persons in the pipeline who are capable of acting as judges. So it behoves us to discuss 1584 calmly and without complacency what we can do to maintain our fundamental values and at the same time to introduce a more or less contemporary system of evidence and procedure. This leads me to say what I had meant to say at the outset: how grateful I am to my noble and learned friend from the Cross-Benches (if he will allow me to call him such after long acquaintance) for having introduced this subject for a debate. I have been hoping for such a debate for a very long time, because I thought the Report badly needed Parliamentary discussion. Even if I do not give a detailed commentary on the Report, I do welcome the opportunity it gives me to talk about some of the things which are very close to my heart and very close to the obligations of the Office which I hold.
First of all, may I say what I conceive to be the position of the Lord Chancellor in a matter of this kind? I am not—I repeat, "not"—responsible for law and order. I am not responsible for prosecution or penal treatment. In neither of those senses—am I a Minister of Justice. What I am responsible for, as I see it, is the administration of justice in this country. As Lord Chancellor, I do not think I am concerned with the results of cases: the results of cases are for the judge and the jury. My duty is to see that an accused person gets a fair trial without undue delay before a competent judge and a jury which is not packed. It is immaterial to me as Lord Chancellor whether a defendant gets off or whether he gets convicted. I am not there to do justice myself, but to see that justice is done according to law. But I have another and, for this purpose, a more important responsibility. Whatever departmental responsibilities for law and order may be, I like to think that it is part of the Lord Chancellor's function to take a view of the system of law as a whole. I have seen it described as a "worm's eye view", and I have also seen it described as an "eagle's eye view". I try to ask myself what we are trying to achieve by it, and whether the means we adopt make sense, not from the point of view of individual rules or practices, but in a more general sense.
I was reading only the other day (thinking of this debate as I did so) an article in 1585 the current number of the Modern Law Review by Professor Hart on the relevance of Bentham to present day law. He represented Bentham as a prophet of rationalising law, or, as he put it, the de-mystification of law. I like to think of the Lord Chancellor's functions like that—an enemy of jargon and jargonisation, a foe of impostor terms which cloud and fog the windscreen of clear thinking and prevent us from seeing the road ahead. I could not help noticing, incidentally, that at the end of his article Professor Hart came to the conclusion that the recommendations of the Criminal Law Revision Committee are indeed Benthamite, both in spirit and in substance, and that the recommendations which have caused so much controversy, and were recently condemned by the Bar Council, were largely recommended by him in 1828. In this connection, he specifically mentioned some of the controversial recommendations in relation to hearsay, self-incrimination and the so-called right of silence that have been mentioned this afternoon.
My Lords, let me come back to my own problems. When I became Lord Chancellor nearly three years ago, I soon realised that I was faced with what amounted to a crisis. Serious crime has been increasing steadily since 1950, I think since the war. When I first went to the Bar over 40 years ago there were four courts at the Old Bailey, some of which sat only intermittently. There are now 30 courts they are spilling over into the Royal Courts of Justice, many of them sitting in vacation. It was clear to me in 1970 that unless I could find temporary court rooms I would be faced with a breakdown in the system of criminal trials. I found a number of new court rooms: first 10, then 20, and now approximately 30, in a number of unlikely and relatively inconvenient places: the officers' mess in Wellington Barracks, Lady Astor's drawing-room in St. James's Square, the old county courts in Willesden and Croydon, makeshift courts in the Royal Courts of Justice, which had formerly been "consecrated"—if that is the right word—to divorce, and others.
In September we shall be opening the old Hans Crescent Hotel as a new "Palais de Justice" in ten courts. In the more distant future we shall erect 1586 something grander still in Tooley Street: 14 purpose-built courts—an increasingly rare luxury in this city. The arrears in the Provinces are largely a thing of the past, thanks in part to the machinery of the Courts Act. The average time in the Provinces between committal and arraignment is now only about eight weeks in bail cases, and about six and a half weeks in custody cases. Personally, I regard this as tolerable, although I shall try to do better. The average time in London to get a case on trial after committal is still 22 weeks—nearly half a year. That is not tolerable. In custody cases, which get priority, the average is nearly 15 weeks which, though lower, is far worse because it means that a number of people stay in prison, some of whom will be acquitted, without getting their cases on for trial. It is noteworthy that the critics of the Criminal Law Revision Committee do not mention these facts in the same breath as their criticisms. This is a pity. The London courts are still receiving more committals than they are disposing of. I suggest that a serious discussion of our problems ought to begin at this point. I have been drawing attention to the problem long before I became Lord Chancellor, since I was Opposition spokesman on home affairs. But people think that I am talking about law and order in the conventional sense, and I do not seem to get anywhere.
Last year the statistics for committals were up once more by 20 per cent., or one-fifth—again, an all-time high, on top of an all-time high, on top of an all-time high. I cannot break down this figure until the Home Office statistics come out in the summer, but I ventured to say at Teesside a fortnight ago that if this continues indefinitely the judicial system will ultimately break down—and so it will. The yearly increases in the number of cases coming before the Crown courts would have already brought about a breakdown but for three factors. The first is the additional court rooms that I have referred to; the second is the Courts Act 1971, and the third is an unprecedented increase in the number of judicial appointments. Since the summer of 1970 I have been responsible for 162 full-time appointments and 381 part-time appointments at Crown Court level. Obviously a part of that is wastage—104 permanent appointments and 200 part-time appointments were additional to 1587 what can be accounted for by wastage. They cannot go on for ever, yet still the increase in cases for trial continues.
I think I can claim that I have got by without in any way dropping the standards set me by my predecessors, although the pressure on the Bar has been such that I have been in danger—and I have been conscious of it—of denuding the Bar of experienced advocates. I have taken every means known to me of eking out judicial manpower. When I was a younger man the average number of days sitting in the county courts by county court judges was about 170. Many of them are now sitting upwards of 210, without complaint. I have been prolonging the service of some beyond the retiring age. I have appointed a number of stipendiaries to the Crown Court, and a number of solicitors and justices' clerks to be stipendiaries: nearly 30 solicitors are now sitting as recorders. Apart from wastage, I shall have to find for London alone another 14 or 15 Circuit Judges to man the courts by the autumn. People must realise that they are facing a serious problem, and talk about it in a rational way.
Now I want to look at some remedies, some suggested in the Report, and some suggested from other sources. Two facts are quite clear. First, the length of jury trials has increased over my lifetime. Even seven years ago an Old Bailey trial averaged 17 hours of court time; and a court day is about five hours. The average now is between 22 and 23 hours. I have gone into this, and this statistic cannot be explained by the existence of a few very long cases. Moreover, it is the case, as we all know, that a jury trial takes anything up to twice as long as a trial before a judge alone. This has been demonstrated beyond peradventure in the civil courts.
My Lords, I am very anxious not to be misunderstood: I have never advocated, and I am not advocating now, the abolition or truncation of trial by jury in the general run of criminal cases. Its virtues can be exaggerated, but its vices can be exaggerated, too. But at least in my experience it is a safeguard to which we should hold. But what I ask is whether all the cases which in fact go to juries ought to do so. I am also going to ask whether some of the rules of 1588 evidence and procedure which we have evolved over the years are still rational, or whether they are nothing more than the survivors of a state of affairs that has now disappeared. I can only repeat that I am not concerned at the moment with results; I should still be asking these questions if the results were exactly the same, but I hope I could show that, by more rational procedures, we could achieve a higher disposal rate. I must say in passing that the research document to which the noble and learned Lord referred—the Oxford research—does suggest, alas! that a plausible liar with previous convictions stands a better chance of getting off in front of a jury than perhaps he should; and that is the second of their conclusions translated into plain English. I am not prepared to accept that the rights of the innocent necessarily involve the adoption of artificial or irrational arbitrary rules or time-wasting procedures.
Let me give some examples. Less than a week ago, I think, an experienced circuit Judge wrote to me thatupwards of 50 per cent. of the time taken up by trials in the Crown Court is in respect of cases which should be tried in magistrates' courts ".That is a quotation. It is not the only letter I have had from circuit Judges to this effect; a great number have written to me to this effect because last autumn I had to write to them asking them to put in more time. The judge I have quoted from mentioned the breathalyser cases, and I take this as typical of some kinds of motoring offences like dangerous driving—in my opinion well within the capacity of magistrates, who already try the great majority of them anyway. Basically, the only question to be tried in a breathalyser case is a question of scientific measurement: how much alcohol a man has in his blood. Owing to the quite extraordinary way in which the Act has been drafted there are a number of peripheral questions of fact which can give rise to complicated questions of law. If the case goes to a jury this means of course that the accused has the bonus chance of a possible misdirection by the Judge. In none of the cases is prison seriously in question, although the licence is, and in the small minority which are exceptions there is the option of trial on indictment or committal for sentence. But what is there left for a jury to try?
1589 Let me give an example of a case which some of my noble and learned friends on the Cross-Benches and I heard by way of appeal not long ago. The undisputed facts as they reached us were that the defendant had been driving through the streets of a built-up area on the wrong side of the road at 60 miles an hour, with twice the permitted amount of alcohol in his blood. I may say that the quantity of alcohol in the blood, and the fact that he had been driving in that area with it in his blood, were not disputed by him at any stage of the proceedings. It was the only thing he did not tell an untruth about. So he insisted on his right to trial by jury—small wonder, because he did not have to pay; he got legal aid. He told a lying story which was not relevant to the essential facts and was disbelieved by the jury, who convicted him. He then raised a point on the summing-up which raised a difficult point of law and took him up successively, at the public expense, to the Court of Appeal and the House of Lords. The only questions of fact which needed to be tried could have been disposed of by magistrates in under an hour. I do not quarrel with the result—he was in fact convicted all the way up—but I am entitled to ask: Is this really a serious way of dealing with a case such as that in conditions like those which I have been trying to describe?
Or take the much more difficult and controversial question of trivial thefts, shoplifting and the like. I am told that at the Old Bailey last year a day and a half was taken trying the case of a man attempting to steal one milk bottle. I cannot quarrel with the result because I do not know what the result was, but it is the kind of case which is tried literally by the thousand in the magistrates' courts with both sides' consent. If a defendant thinks that he has been wrongly convicted by magistrates, lie is then entitled to a complete rehearing by way of appeal in front of the Crown Court Judge and probably two magistrates. But why, I ask, is it obviously necessary to take 12 men from their business and have the whole paraphernalia of a jury trial, costing £750 a day, when people are having to wait in prison for 15 weeks to have more serious cases disposed of? And ask any honest or competent man, if he were really innocent, whether he would not be content to 1590 be tried by an experienced bench, with an unlimited right of appeal to the Crown Court, rather than by a jury from whose verdict there is virtually no appeal, as the noble and learned Lord reminded us, and with possibly a maximum fine of £5 in question.
As I say, I am not suggesting that the right of trial by jury should be taken away. It exists, and it exists in the cases I have been mentioning not because of Magna Carta but because Parliament in its wisdom has allowed magistrates to impose a prison sentence of over three months, which they practically never do. It is right for consideration as to whether the range of magistrates' jurisdiction should not be further extended as it has been in the past.
Or let me take a much more difficult case—and it raises a rather different point, but on the same subject—the increasing number of long fraud cases which come before the Crown Courts, particularly the Central Criminal Court. Some of them last six months or more. Most involve the meticulous examination of documents—not infrequently 2,000 or 3,000 different documents; in a recent case over 6,000 different documents. Most involve the careful inspection of accounts—double entry accounts. Sometimes there are two or more sets of these, one honest, which gives the true account of the business and was not intended to be seen, the other inaccurate and allegedly dishonest, said to have been concocted for the purpose of deceiving creditors of the Revenue or Customs and Excise or Exchange Control.
My Lords, I know I am going to be told that in the end the question is a simple one—who is to be believed, who is honest and who dishonest?—and I shall be told that that is precisely the kind of question juries are best able to answer. That may be so, but I simply ask the House to consider two points. First of all, put yourself in the position of the jury, soon to be drawn straight off the voting list. It is one thing for a working man, I suppose, to give up a week of his time, or for a housewife to give up a week of hers, but it is another thing to ask them to give up six months to try a case they find difficulty in following. And ask yourselves the question, how can a jury be expected to arrive at a correct conclusion about who is to be believed, when they cannot really familiarise themselves 1591 with the accounting concepts about which the rival statements have been made, and whether, if they can, they are more likely to be right than another tribunal—let us say, a judge and two laymen, who have to give reasons for their decision, which a jury do not have to give, and from whom there would be an unlimited right of appeal, as in a civil case. Ask oneself which one would one prefer to be tried by. I do not think the answer is obvious, and I do not think it ought to be scouted as an attempt to erode the fundamental liberties of the subject because I have raised it.
Let us now look at some of the rules of evidence and procedure, with Bentham's eyes if we can recover them, remembering the kind of danger which the rules were intended to avert. The rules were devised by judges at a time when a prisoner could not give evidence on his own behalf —he could not do so until 1898, if my memory is right; he could not call his wife, his partner or his brother as a witness in his defence. In felony, although he was entitled to counsel, the counsel could only argue points of law. He could not appeal at all from the verdict of the jury, however inadequate the summing-up might be—and in some cases and until the middle of the nineteenth century and later they were sometimes virtually non-existent. He was at the mercy of a Titus Oates or a common informer paid by the results of his evidence. There was no disciplined police. I ask the House, is it likely that all the rules designed to mitigate the severity of that kind of artificial situation are really of contemporary value to protect the rights of the innocent at the present day, when we have moved into an era of rational evidence and discussion?
English law has progressed from mystification to rationality, although I must say at a depressingly funereal pace. It has moved from a discussion of competence of witnesses, admissibility of evidence, to the question of reliability, relevance, probative value and the weight to be attached to different bits of evidence—but, oh, so slowly! The first thing I think your Lordships have to make your minds up about is whether you trust a jury as a tribunal of fact. The Bar Council says it does. So did Bentham, I think, and so do I. But if 1592 you trust the jury as a tribunal of fact, why cannot it be allowed to decide for itself questions of weight and relevance, or probative value in accordance with the ordinary canons of logic and common sense and not by a series of artificial lawyer constructed rules?
What about the so-called right of silence? Of course Bentham was in favour of the right of silence, and so am I, if by that we mean that nothing can be done or might be done to a man who refuses to speak. But, surely, all the behaviour of an accused person who is confronted with a charge is something which the tribunal of fact is entitled to consider in the context of the other evidence. Take a man—and for this purpose I am not inventing, I am reminiscing—who is accused of incest with his daughter. His wife comes to him with the weeping child and tells him what she has learned. To use the language of the Bar Council he is entitled to say to her:In this country, a person is innocent until proved guilty. If you think I have committed an offence, prove it. I do not wish to be interrogated. I wish to seek advice. I do not intend to answer any questions until you tell me what your case against me is.I submit that a man so accused would have every right to say this or, more literally, he would have every right to remain entirely silent. But how artificial can you get in maintaining that if counsel, or the judge, or, worse still, the jury, discuss with candour the possible reasons for his silence they are depriving him of one of his fundamental liberties?
Obviously there are many explanations for silence. Some of them may be innocent, some of them may be guilty, but which is to apply in a given case is surely a matter for discussion by the tribunal of fact. But, apparently, according to the critics, discussion in front of the tribunal of fact is to be either taboo or artificially restricted. If the accused blushes, if he appears confused, if he hangs his head, if he makes inconsistent statements, that is all right: it is evidence against the accused or, arguably, evidence in his favour. But if he says nothing, apparently the jury are to adopt an attitude towards his silence which they would never adopt in the conduct of their family or business affairs.
1593 I had always thought that one of the advantages of having juries was that you could apply common sense to important and disputed questions of fact. The main object of some lawyers seems to me to provide artificial criteria which would not be applied anywhere except in the strained atmosphere of a court. I agree with the Bar Council—and here again I quote—thatthe great majority of people who fall foul of the criminal law or who are suspected of doing so are inarticulate or weak or fearful, or inadequate or deprived".But these are just the people who talk naturally when confronted with an accusation. They do not remain silent. They do not say: "In this country a person is innocent until he is proved guilty". They are precisely the people who do not get the benefit of the rule. What I am pleading for is not an adverse decision against accused persons but a breath of fresh air, a little more common sense and a freeing from artificiality.
I must say with the Court of Criminal Appeal—because they said so in 1967—that the present law is devoid of common sense. Perhaps I should quote their own words.It seems pretty plain"—said the court—that all the members of that jury, if they had any common sense at all, must have been saying to themselves precisely what the learned judge said to them".They then said that what the learned judge said to them was a misdirection, and went on to say:The line dividing what may be said and what may not be said is a very fine one, and it is perhaps doubtful whether in a case like the present it would be even perceptible to the members of any ordinary jury".What we are saying is that judges have got to go on telling the jury things which would not be perceptible to any ordinary member of it. If the accused fails to give an account of his conduct, or fails to give it until the last possible moment, the judges can tell the jury that they can take into account his silence when considering the weight to be attached to his evidence in court, but they may not tell the jury that the jury might think it odd in the context, or even incredible if he were innocent, if he did not venture an explanation at all. This is what we are asked to defend.
1594 That brings me to the question of previous convictions and bad character —perhaps the most contentious question of all. I think it is worth while emphasising that the status quo is not that evidence of bad character is inadmissible, nor yet that it is. Whether, in a given case, it is admissible or not under the status quo is an extremely complex question. The statutory provisions are not few; decided cases are extremely numerous and not always easy to reconcile. The effect, of course, is that there are numerous misdirections. I should have thought there was a clear case for rationalisation.
Let us remember for a brief moment the recent case of Graham Young. It will be familiar to the House. Again one does not quarrel with the verdict which was given, but the jury who convicted were kept in ignorance of a record of six or seven previous convictions. This enabled the defendant to put forward a plausible defence—and it was plausible. It might have succeeded, but unfortunately for him he had kept a diary. That diary was found and was used in evidence against him. But supposing he had not kept a diary or had destroyed it, or the police had not found it—are we really happy that the protection of the innocent demands that such a jury should be kept in ignorance of certain facts?
I did a criminal appeal about four years ago about a man who was convicted of attempting to rape his daughter, aged 14 or 15. What the jury did not know was that 12 months before he had been found guilty of a sexual assault upon the same girl. So the girl had to go into the witness box. She had to relive and repeat what had happened. She was cross-examined severely by counsel as to whether she had been guilty of the most appalling misbehaviour, with perjury to boot, and the police who gave evidence were subject to similar cross-examination. Of course after the cross-examination it was arguable that the judge might have let the conviction in—the rules of our game are as complicated as that—but only then as to credit, and in fact he did not do so. It is a very difficult point. The jury convicted, but is the House really satisfied that human and civil rights were really protected in this remarkable way?
1595 Take hearsay. Here may I say to the noble and learned Lord, Lord Gardiner, that hearsay is something which excludes evidence for the defence as well as for the prosecution, although I must admit quite candidly that I conducted a murder defence not all that long ago in which I spent about 30 minutes of my time introducing hearsay evidence without any objection from either the prosecuting counsel or the judge! It may, of course, be highly undesirable to introduce evidence of hearsay when the witness is available and ought to be cross-examined. Sometimes what is technically hearsay is far more convincing than oral testimony: business records, for example; or the maker's number on the chassis of a car. Parliament acted on that in 1965. There were further statutory provisions in 1967 and some of the Committee's suggestions were referred to with approval by my noble and learned friend.
Take also confessions. Consider this, which is a reported case of murder. It originated in a court-martial, but that fact is immaterial because the law applicable is the same. A soldier was murdered by one of his comrades. The troops were paraded, and the sergeant major, perhaps rather naïvely, said he would not let them go off parade until the guilty man confessed. Whereupon, he did! He stepped forward—he was a man named Smith—and before the whole parade he voluntarily confessed that he had stabbed his comrade. The court convicted, but the Appeal Court quashed the conviction, not on the basis that the man was innocent, not indeed on the basis that the confession was not reliable, but on the basis that it had been obtained by a threat. Such is the law which the critics of the Committee wish to maintain in its unblemished purity. I submit that in the absence of real oppression the value to be attached to a confession should have been left to the tribunal of fact.
That really concludes what I have to say in rather a long speech, but I want to end with two general observations. A great deal of criticism, not always very good-humoured criticism, has been levelled at the Criminal Law Revision Committee's Report. The Committee was composed of, I think, fourteen extremely eminent gentlemen. Most of them are 1596 known to me as enlightened, experienced, intelligent gentlemen; at least as enlightened, at least as intelligent and at least as experienced as most of their critics. In my view, they have not been given justice and have not been thanked enough for the work they have put in. They have drawn attention to an extremely complicated, obsolete and unintelligible field of the law which is urgently in need of rationalisation and reform, and the present state of which has a distinct bearing on the current prevalence of crime. They have established, I believe beyond peradventure, that things cannot be left as they are, and in my view there is no field more urgently in need of reform.
We hear a great deal about the rights of the accused, but what are they? The right of an innocent man is to be acquitted. That is an unqualified right. It is an absolute right. It is sometimes said that every acquittal involves a miscarriage of justice, and, rhetoric apart there is a sense in which that is true because if the accused man is innocent he has been put in peril; if he is guilty, justice has been baulked of its objective. We are told, and of each accused we rightly insist, that a man is innocent until proved guilty. But in dealing with the rights of a whole series of accused one cannot always make the same assumptions. All are subjected to some restriction. Some who are ultimately acquitted are deprived of their liberty altogether while awaiting trial and must be assumed to be innocent in such a condition. What is wanted is a system that will guarantee acquittal for the innocent and protect the guilty from oppression—two quite different objectives. I do not think that anyone, if he thinks about it, will doubt this.
But what is really under discussion is whether the methods by which traditionally we seek to obtain the objective are rational or efficient. I am of the opinion that at present they are neither, and therefore I am not content with things as they are. Without committing myself to a single one of the Committee's proposals as they stand, I consider that the subject has not so far had a fair ventilation, and that is what I wish to obtain in the relatively short time available to us before we shall have to act.
§ 5.22 p.m.
§ LORD FOOT
My Lords, I am sure that I enjoy the sympathy of the House in taking part in the debate at this stage. To begin with, I speak immediately after the noble and learned Lord, the Lord Chancellor, who always sets a high standard to follow. He was preceded by two former Lord Chancellors. What makes it almost calamitous from my point of view is that to speak immediately following me is the noble and learned Lord, Lord Salmon, who will be making his maiden speech, and I know that the whole House is waiting to hear him. The reason why I am taking part from these Benches is that we do not happen to have a spare ex-Lord Chancellor in our diminished Party. Indeed, we do not have very many senior members of the Bar.
My Lords, I intend to be brief, and if I am not entirely a layman I am very near to being one. On the other hand, I feel that laymen should take part in this debate because, as we are some way into what is bound to be a long discussion, I suggest that the proposals which have been made in the Committee's Report and which are contained in the Committee's draft Bill will be a matter of high contention and argument—and rightly so—for months, and perhaps even years, to come. It is vital that we should get this matter right, and I suggest that we may refer to this debate as being the opening shot, the preliminary skirmish, in what is likely to be a long and momentous debate.
There is one point on which I think we can all agree and which should be made clear at the outset. It is that the major proposals in this context which are contained in the Report are not, in my view, concerned with legal technicalities —with what can properly and helpfully be said in a criminal court. I hope that the debate of these great questions will not develop into a lawyers' wrangle. We must remember that there are two fundamental issues involved in the proposals in this Report which are of consequence to every member of the community. The first, I suggest, is the quality of justice dispensed in the courts of this land, and the second is the fact that some of the proposals of the Committee raise issues of great constitutional importance as to the relationship between the State and the individual and between the human being 1598 and the law enforcement agencies. These are matters of concern to every man, woman and child in the community.
I digress briefly from that aspect to comment on the quality of justice, following on what the noble and learned Lord the Lord Chancellor said about his anxieties over the overloading of the courts and the possibility of transferring more cases into the magistrates' courts, so relieving the burden on the Crown Courts. I am afraid that one of the objections to transferring more criminal matters into the hands of the magistrates is that the quality of justice dispensed in the magistrates' court is not so good as that which one gets in the Crown Court. To put it another way, anyone who is charged with an offence, whether he be guilty or innocent, has a better chance of establishing his innoncence if he goes to the higher court. I say that not in any way to criticise the quality of the magistrates, be they lay or stipendiary; nor do I criticise the magistrates' clerks or magistrates' courts as such.
If one decides to elect to be tried by a jury one has great advantages. First of all, one knows exactly the case one has to meet, because the depositions have been put in at the committal. This is an enormous advantage. I have always thought that the task falling on a solicitor in defending a client in a magistrates' court on a charge of any seriousness or complexity is far more onerous than the task which falls to learned counsel when the case goes to the Crown Court. In the lower court, the defending solicitor does not know what case he has to meet. As a result, he cannot cross examine a witness in the knowledge of what the next witness will say. He has no time to prepare the submissions which he may make to the Bench at the end of the day. All these things are a great disadvantage. I therefore urge on the noble and learned Lord that we should hesitate before transferring to the magistrates' courts cases which seriously affect the reputation and livelihood of people, however small the amount of money that may be involved, lest the quality of justice which they get from the magistrates' court is, in the nature of things, less than that which they will get from the superior court. I have been diverted into making this point because I think the noble and learned Lord would misunderstand the opposition which his suggestion has aroused if he 1599 thought that the matter about which I have spoken is not a very serious element in the argument.
My main purpose in intervening in the debate is to draw attention to only one aspect of the Committee's Report and draft Bill. For about 150 years in every criminal trial before a judge and jury there has been one requirement laid on the judge when he comes to sum up the case to the jury. It is that he shall always tell them that it is the business of the prosecution to prove their case beyond reasonable doubt and that it is not the task of the accused to prove his innocence. In appropriate cases there is another injunction which the judge is required to give to the jury as to how they should sift the evidence and reach their conclusion; that is, that they are not to make any adverse inference because it has been given in evidence that at some earlier stage the accused—whether when he was being interrogated by the police, when he was being charged, or when he was being committed for trial by the magistrates' court—remained silent. If either of those injunctions and instructions is omitted in any criminal case, it is almost inevitable, such has been the state of the law for one hundred or two hundred years (I should perhaps qualify that by saying that such has been the state of the law since we had a Court of Criminal Appeal): that the conviction will be quashed and upset because of the failure to give the direction.
It seems to me that the seriousness of the proposals which are made in Clause 1 of the draft Bill, and in the sections of the Report related to Clause 1, constitute a serious breach in those two propositions or principles which have so long been a hallowed part of our legal system. Those two principles are intertwined; the principle that the prosecution must prove its case and it is not for the accused to prove his own innocence, and the principle that a man cannot be convicted as a result of the fact that he remained silent at some stage before he reached his trial. It is precisely because the two principles are intertwined, and precisely because the burden of proof remains always with the prosecution, that the prosecution cannot rely upon the silence of the accused in support of their case. If the prosecution relied in support 1600 of their own case upon the fact that the accused had remained silent at some earlier stage, it would be tantamount to saying: "If you are innocent, why have you not sought to prove it?"; or, "If you are innocent and were innocent when you were earlier charged, why did you not protest your innocence at that stage?". Is it not perfectly clear that the "right to silence", so-called, is an integral part of the general rule that it is the business of the prosecution to prove their case?
What does Clause 1 propose in this regard? I suggest that it proposes that these ancient safeguards—which we have heard recited at every criminal case we have attended before a judge and jury; these hallowed principles that judges have been compelled to tell to juries, on peril of having the verdict upset—should be breached and that these elementary propositions, as they have for so long been regarded, should be revised and in some senses reversed. The reason I say that they are being breached is because what Clause 1 provides is that the failure of the accused person at any stage prior to his trial to disclose a fact upon which he later relies, that being a fact which he might reasonably have been expected to disclose, can be counted to his disadvantage and an adverse inference drawn. Is that not in fact the abrogation of the right of silence?
One of the remarkable things about the Committee's Report is that the Committee want to deny that they are saying any such thing. The reference is at paragraph 28, and the footnote to it, where the Committee say:The suspect will still have the 'right of silence' in the sense that it is no offence to refuse to answer questions or tell his story when interrogated; but if he chooses to exercise this right, he will risk having an adverse inference drawn against him at his trial1.Then the footnote says:In relation to the trial the 'right of silence' enjoyed by the accused means that the prosecution have the burden of proving his guilt, that he may refrain from giving evidence and that the prosecution may not comment on his omission to give it. Under our proposals discussed in paragraphs … comment on the omission will be allowed and it will be permissible to draw adverse inferences from it. We do not propose to weaken in any way the principle that the prosecution have the burden of proving the guilt of the accused: in fact our proposals discussed in paragraphs … are intended to strengthen this principle in one respect.1601 I am mystified by that statement, my Lords, because I do not understand how it is sensible to say that a man has a right if he can exercise it only at his peril. It does not seem to make any sort of sense to say to somebody, "You are not obliged to say anything; you are perfectly entitled to remain silent. But woe betide you! if you do." That is even more so when a man comes up at the court tried and is told: "You are perfectly entitled to refrain from giving evidence; that is your legal, constitutional right. But if you do, it may be the worse for you." I do not understand in what sense it can be reasonably said that a right is being retained if that right can be exercised only—
§ THE LORD CHANCELLOR
My Lords, may I put a question to the noble Lord at this point? He has practised at the law probably as long as I have. He knows as well as I do that in practice if an accused does not give evidence, the jury does take it against him. In these circumstances, the judge is very severely limited as to what he may or may not say, and prosecuting counsel is altogether debarred from commenting. But does the noble Lord not think that when the fact, as every lawyer knows, is that his chances of acquittal are dropping like a stone if he exercises that right, somebody—perhaps his own lawyer in private but if he has none then somebody else—might warn him of the fact?
§ LORD FOOT
My Lords, I am not quite sure that I take the noble and learned Lord's point. Of course it is true—and I accept it—that if to-day somebody decides not to go into the witness box, even if he is not brought up under this new procedure and asked: "Are you going to give evidence or are you not?", the jury may well draw an adverse inference. I do not dispute that. What I do object to is what may happen if a person is told, "You are not under any obligation to give evidence." He is told: "You can do one of three things: you can remain silent; you can make a statement, or you can go into the witness box and make a statement on oath. Of course, the jury perhaps will not attach so much importance to an unsworn statement as to a sworn one." In those circumstances, if he decides that he will not be put on 1602 oath a jury may very naturally draw an adverse inference. But is it right that when he has been told that he is not obliged to give evidence the judge, or anybody else, should seek to emphasise the adverse inference which the jury may draw of their own accord? You cannot in one breath say to a man, "Here is a right", and in the next moment say, "You would be foolish to exercise it."
Another foundation stone, as I have always understood it, of legal procedures in criminal cases, which, as I think, is being overturned by the proposals of the Committee, is the old rule that no evidence can be received of a statement made by a suspected or charged person which is the result of a threat or an inducement. The cases, of course, are full of examples of the sort of inducement that the law has in mind. If a person in authority says to a man when he is interrogating him, "Look here, it would be better for you if you told me the truth, if you talked", that may be held to be an improper inducement and result in the evidence being excluded. It is in this context that it seems to me that the new form of caution which is proposed by the Committee is important and relevant. It is set out in paragraph 44 of the Committee's Report, and perhaps I may quote it because it has not been quoted yet.
What the Committee propose is that when a man is being interrogated by the police, or indeed, as I understand it, by any other person with authority to ask questions, he shall be addressed in this fashion:You have been charged with …or he may be told that he may be prosecuted for a particular offence—and then the caution goes on:If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done.It seems to me that if that recommendation were adopted we should be taking something which has always in the past been regarded as thoroughly repugnant, something which is likely to lead to miscarriages of justice, and we should be elevating it and giving it the blessing and approval of society; in other words, we should be giving our blessing to the use 1603 of inducements to enable accused persons to make statements and make confessions. That seems to me to be an extraordinary reversal of what historically has been the situation in this country.
My Lords, I conclude by saying this. My primary concern here has been to try to make clear what is proposed, or what I think is the significance of these proposals, in this one field of the right to silence. I feel that the Committee have been really very modest in the way in which they have presented this Bill for our consideration. They have presented it in very modest terms, as if indeed it was little more than a sort of tidying up process. What could be more harmless, for example, than what I think is called the Long Title or the Preamble to the draft Bill, which reads in this way:Draft of a Bill to amend and, in part, restate the law of evidence in relation to criminal proceedings; to amend section 129C of the Naval Discipline Act 1957 …—about which I am glad to say we have heard nothing this afternoon—… and for connected purposes".Who would believe that a draft Bill passing under such a soothing introduction is in fact a Bill which overturns some of the most honoured and hallowed institutions and procedures in this country! If one looks at the front of the Report and reads the names of the Lords Justices, the High Court judges, the academics, the Director of Public Prosecutions, it is like an Establishment list. I suggest that these noble and learned gentlemen are far too modest, and in point of fact they are a bunch of revolutionaries.
§ 5.45 p.m.
§ LORD SALMON
My Lords, I rise with acute trepidation to face the ordeal of addressing your Lordships' House for the first time. My only consolation is that I know of the friendly indulgence with which your Lordships always treat anyone who finds himself in the daunting position in which I now stand.
I should like to begin by expressing my thanks and paying a tribute to the exceptionally able and distinguished members of the Law Revision Committee for the enormous care and industry with which for the last seven and a half years they have prepared their Report and 1604 the draft Bill annexed to it. I am happy to welcome and express my respectful agreement with many of the very useful, though comparatively minor, recommendations contained in the Report. I am sad that many of its major recommendations are such that I find it impossible to accept them, nor indeed to do other than totally oppose them. This saddens me because of my deep regard for the members of the Committee, many of whom are my friends, some close personal friends. My only consolation is that none of these major recommendations which I would oppose is unanimous, and therefore presumably there are at any rate some members of the Committee who may agree with some of the criticisms which I shall offer for your Lordships' consideration.
My Lords, the law of evidence is necessarily technical, perhaps dull—at any rate, hardly pulsating with human interest. But the issues raised by this Report go far beyond the realm of arid technicalities; they go to the very roots of British justice, which as it now exists commands the respect and admiration of the whole civilised world. It has a reputation, as the noble and learned Lord the Lord Chancellor has said, of which we in this country have always been justly proud, and which I am sure we are determined to preserve: and may I make it plain that it is obvious that the members of the Law Revision Committee are just as anxious to preserve it as anyone else. The principles upon which our system of justice rests are well known, generally accepted and have hitherto never been threatened. My Lords, they are threatened now, not, of course, intentionally, but nevertheless in my view really threatened by some of the recommendations contained in this Report.
I do not apologise for very briefly restating what these principles are. Every man is presumed to be innocent until, after a fair trial, he is proved by reliable evidence to be guilty beyond any reasonable doubt. The purpose of the law is to ensure, so far as is humanly possible to do so, that no innocent man shall be convicted. We accept, therefore, that it is better that 10 guilty men should go free than that one innocent man should be found guilty. I hope that I shall not be thought rhetorical or emotional if I say that in my view these are the pillars 1605 of freedom without which individual liberty would wither and die.
The fact that I recognise that, under our law, the accused have these inalienable basic rights, does not mean that I do not equally recognise the rights of those who are victims of crime. Indeed, a long time ago—I think it was as long ago as 1958—it fell to my lot to say at the Old Bailey that every man has the right to walk our streets in peace with head erect and free from fear, and that that was a right which our courts would unfailingly uphold. A modern footnote may read that "streets include the undergrounds, and that a man has an equal right to feel safe in his house, his shop, his office, his warehouse or bank, or wherever else he earns his daily bread or takes his ease. I certainly fully share the general deep concern on account of the enormous rise in the incidence of serious crime. It increases at an even faster pace than inflation, and the problems of how to contain either seem to be equally intractable. But I am convinced that the answer is not devaluation; certainly not the devaluation of British justice which, however unintentionally, would in my view inexorably follow if some of the major recommendations in this Report were to be adopted.
I have perhaps the temerity to challenge the whole philosophy lying behind these recommendations; namely, that the rising wave of serious crime can somehow be stemmed by a relaxation of the safeguards which we have built up over the generations to ensure that the innocent shall go free. There is not a vestige of evidence to support this philosophy, and I would invite your Lordships to reject it. I am convinced that the comparatively minute proportion of guilty men who are acquitted has absolutely nothing to do with the alarming rise in the rate of serious crime. I say this from my own experience and from the published figures, if I may bore you for a moment with my own experience during nearly seven years when I had the honour of being a High Court judge. During that time I went on every circuit in the country as judge of assize, as well as to the Old Bailey on a number of occasions. I must have presided over hundreds of criminal trials. There were not more in all that number than about half a dozen cases in which the jury acquitted when I considered 1606 that they ought to have convicted—and, on reflection, when I looked back on them, I came to the conclusion that at any rate as far as some of them were concerned there was a good deal to be said for the jury's point of view. A 1 or 2 per cent. wrongful acquittal of guilty men is surely a small price to ensure that the innocent should go free. In any event, those acquittals never bothered me, but I should not have slept in my bed if any innocent man had been convicted by the jury. Fortunately, that never happened.
May I say a word about the figures to which Sir Robert Mark, for whom I have great regard, has referred. He has pointed out that the published figures show that one out of two men tried by judge and jury is acquitted. I confess that I am rather sceptical about statistics. Assuming however, as I do, that these figures are correct, they are still misleading unless looked at in their context. The context which the published figures reveal, if you examine them closely, show that out of every 100 men brought to trial before judge and jury 71 plead guilty. Of the remaining 29 per cent., half are acquitted. This means that 85½ per cent. of the men brought before a judge and jury for trial are dealt with as guilty, and only 14½ per cent. escape. As any of your Lordships who may be familiar with racing will immediately recognise, that means that the odds are at least 7 to 1 against any man who is brought to trial being acquitted. These are not very tempting odds for a prospective criminal. Compare those odds with the far higher odds of a criminal, guilty of serious crime, escaping detection and arrest. It is the detection rate, in my submission, not the conviction rate which may well be one of the causes of the increase in serious crime, although no one can blame the police, who do magnificently with the exiguous numbers and material now at their disposal. The odds against a guilty prisoner escaping are far greater than 7 to 1, unless one assumes that all the 14½ per cent. who are acquitted must, in reality, be guilty because they have been charged. That would be a shocking assumption. In some countries, of course, the courts are the creatures of the Executive, and if there is a prosecution a conviction almost inevitably follows 1607 after what is usually a mock trial, but in a free society that, happily, is impossible.
In my view there is no doubt that the vast majority of those acquitted in this country are, in truth, not guilty. The jury acquit because there is no evidence which would justify a conviction, or because the judge directs them to acquit. Very rarely does a jury allow a guilty man to escape in respect of serious crime such as murder, robbery with violence, protection rackets, housebreaking, mugging—or "thugging" as, in my view, it could more appropriately be called. It is the increase in serious crime which is concerning the public. The public is not unduly perturbed about the number of empty milk bottles that may be stolen, or about cars that may be parked on yellow lines. It is the increase in serious crime with which we are concerned, and I do not believe there is any evidence that any relaxation in our rules would, in any way, help in that direction.
The suspect acquittals occur mainly in the realms, for example, of motoring offences where the members of the jury sometimes say, "There but for the grace of God go I", or in fraud cases where the prosecution has been so overloaded or unnecessarily complicated that, in the end, the jury is left in a fog. The laws of evidence, the criminal procedure, are not responsible for acquittals such as those, still less for any rise in crime. The certainty of detection is generally recognised to be the best deterrent, and the odds against a criminal being arrested for a serious crime—I am not counting the milk bottles or the yellow lines, where the odds are about "evens"—are about 10 to 1 against, and in many cases much higher. It seems hardly sensible to ignore that factor, and to attribute the rise in serious crime to the fact that if a criminal is detected he has a chance—though a very slight one—of being wrongfully acquitted.
The noble and learned Lord the Lord Chancellor has said that it is impossible to look at each of the trees. I have been looking at the wood and I do not intend to examine the trees. I cannot deal with all the recommendations which are not unanimous and with which I do not agree, but I should just like to mention two as an example. I am no more wedded to all the technical rules, excluding 1608 hearsay, than some of the noble and learned Lords sitting near me, and I welcome the relaxation of some of these rules proposed in the Report. But some of the recommendations in respect of these rules appal me. If A and B are charged together with committing a crime, and A makes a statement to the police which is written down and which he signs, in which he seeks to exonerate himself and throw the whole blame onto B and he sets out a lot of facts which will be evidence against B, then under the draft Bill accompanying the recommendations that statement can be put in evidence against B, without A even having been called. I say it appals me that material of that trashy kind could be received as evidence in an English court of justice. It goes further than that, because, under Clause 5 of the draft Bill, at the end of the case for the prosecution the judge then has to call upon the accused to give evidence, and has to warn the accused that if he does not give evidence the jury will be entitled to look upon his failure to give evidence as corroborating the facts set out in that piece of paper and which were written out behind his back, the signatory to which has never been called to give evidence. I think that would be terrible.
One is tempted to say that you might as well go back to the days of the French Revolution, the terror at the end of the 18th century, when someone had only to drop an anonymous note into what was then the equivalent of the police box for it to be sufficient material on which to arrest and try you, and sometimes to convict you. Believe it or not, this is the very thing that the draft Bill would allow. Any statement on any piece of paper, unsigned, where it is impossible to discover the identity of the writer, is evidence of a fact that it contains. Surely a recommendation of that sort, however well-intentioned, cannot be accepted. It is sought to be justified on the grounds of logic: it is a bad thing to exclude hearsay evidence; therefore, there is no reason why, logically, we should not admit documents such as these. But, my Lords, our law has never been built on logic alone, still less on abstract academic theory. It has been built on common sense and experience, and on that sense or instinct for what is just, which is innate in our people. Whatever the logical argument may be, I suggest that all the 1609 other factors to which I have referred, which your Lordships may think are even more important than abstract logic, show strongly that material such as I have been speaking about ought never to be admitted as evidence in our courts.
The only other matter to which I want to refer is in respect of the relaxation in the rule that normally keeps a man's past record from the jury, because, again, experience has shown that it usually has a prejudicial effect. According to the Report, this clause caused more dissention within the Committee than almost any other. In the end, they came to a compromise, but it was a compromise which some of the members—we do not know how many—would have nothing to do with. It purports to codify the common law as it is, and also to relax it. Subsection (2) of Clause 3 is said to be codification, but it is in truth, in my judgment at any rate, a considerable expansion of the law if it means what it says. It says that evidence can be brought against a man accused of a crime if it shows,(a) a disposition to commit that kind of offence in a particular manner or according to a particular mode of operation resembling the manner or mode of operation alleged as regards the offence charged".My Lords, there are, unfortunately, many housebreakers about and they operate in different ways. Some get into a house by breaking or forcing a downstairs window; some favour skeleton keys, others the cat-burgling methods. Each method (and there are many others) has its own devotees—hundreds of them. If that clause were put into operation, consider not only the injustice that might be done but the terrible temptation that would be put in the way of the police, the vast majority of whom would resist it but some of whom might not. Suppose someone has broken in and stolen in, say, Laburnum Road by forcing a downstairs window. Charlie has a good many convictions for housebreaking, and his general mode of operation is to force a downstairs window. The police are convinced—in fact, they know—that Charlie did it. That means that they strongly suspect that Charlie did it: and they may be right. But, on the other hand, Charlie may not have done it. Charlie is arrested, and when he is told what he is being charged with he strongly protests 1610 his innocence. The policeman says to him, "Now, Charlie, what is the good of going on like that? What chance have you got, with your record? You had better own up. It will be easier all round, and will mean a lighter sentence for you". It may be that some of the Charlies of this world, although not guilty of the particular offence charged, would plead guilty. Most would not. Then in some cases evidence would be given of highly incriminating remarks made by Charlie when he was arrested, which he would indignantly deny, and his record would go in. My Lords, what chance do you think Charlie would have? Absolutely none. The Charlies of this world know it; the police know it. I only wish that the majority of the members of the Committee which produced this Report knew it.
I want to conclude by referring to a short quotation from Doctor Manfred Simon, a distinguished French judge who gave evidence before the Committee. After saying that the proposals contained in the Report sought to introduce the features of many foreign systems into English law without incorporating the safeguards which existed in their home countries, he said this:The proposals seem to me to be the first timid step to dismantle the venerable fortress built by many generations of British lawyers to protect the innocent and to challenge the arbitrary action of government. It is a sad illustration of the insidious process whereby standards of even the most civilised countries can under modern pressures subtly but irresistibly be eroded".My Lords, the only word of that I quarrel with is "irresistibly". I am convinced that there is a host of people in this country who will resist to the last, and resist successfully, any attempt to erode the basis upon which British justice stands.
§ 6.15 p.m.
§ LORD REID
My Lords, I am sure that every noble Lord present will wish to join with me in congratulating my noble and learned friend Lord Salmon on his maiden speech. It is rare, I think, that we get such a forthright speech, and it is a pity it is rare. I am afraid my experience has not been so much lately as in earlier times, but it has seemed to me rare that speakers take the trouble to prune their speeches of irrelevancies; and 1611 that my noble and learned friend has assuredly done on this occasion. I am sure we all should wish to say to him that we hope it will not be long before we hear his voice in this House again.
My Lords, we have to approach this problem against a very sombre background. The noble and learned Lord the Lord Chancellor has once again pointed out the critical situation which exists to-day, and I wholly agree with my noble and learned friend Lord Salmon that the really critical way, the really important way, to try to combat that situation is not by amending the law but by increasing our detective force. It is remarkable that when you have a really serious crime—something that catches the public's attention—it is very rare for the criminal to escape; but when you have a run-of-the-mill crime, of violence or the like, the detection rate is low, and the inevitable inference is that if only we would spend a reasonable amount of money on increasing the police force we should achieve remarkable results. But, of course, we all know that in this country economy is always exercised in the wrong direction, and this is a typical example. We could not spend our money better than to increase the size and efficiency of the police force: instead of that we spend it on a number of things which are very much in your Lordships' minds just now, but which I will not mention.
There is no doubt that trials are getting longer; there is no doubt that a number of guilty men plead not guilty on the off-chance, because they get off far more than they used to; and nobody will say that our present system of the administration of the law is even reasonably satisfactory. Therefore one must approach the consideration of this Report with the utmost sympathy, to see whether it is going to help in any way at all. I agree that there are quite a number of relatively minor proposals which are good in themselves; but, adding them all up together, I do not think they would amount to much in the way of diminishing the time which our courts have to spend on criminal trials.
But when we come to the major recommendations, it is a very different story. I should not like to go quite so far as my noble and learned friend. I 1612 should not like to go quite so far as the Report of the Bar Council. Strangely enough, I find myself in unusual company, because the Report with which I agree most is that of Justice, which seems to me to be well-balanced and, on the whole, to be well worthy of consideration. But that Report makes it perfectly plain that the major proposals of the Committee are intrinsically unacceptable. Putting it in popular language, I think that this House is telling the Government this afternoon that the major proposals of the Committee simply will not do and will have to be rejected. My purpose in addressing your Lordships this afternoon is not to knock down the Committee's proposals any further, but rather to suggest that the alternative is not between accepting the Committee proposals and doing nothing. If it were, we might be in a difficult position; but it is not.
There are two ways of reforming any part of our system which is creaking. The traditional way in this country is to go bit by bit, to put a bit right here and a bit right there—something that normally is the best way, I think; although it may be called tinkering. Normally, it is the best way of approaching a problem. When you find, as I think is found here, that tinkering is not good enough—and I do not think it is disrespectful to speak of the Committee's proposals as "tinkering"—then you have to start thinking out the whole problem. It seems to me that if you look at the matter on broad lines you must start from two major considerations. The first, rightly. is that you must do nothing which will prejudice the innocent accused. You must bear in mind that an innocent accused person is often stupid, he is often slow, he is often overawed and generally nervous. The result is that he must have a fair deal. If we start thinking again from the beginning we must take as our basic test: Is this giving that kind of man a fair deal?
The second thing that we must think about is the public disquiet, which has been increasing, with regard to the operation of a few members of the police force —and the trouble is that although there are very few, one never knows who they are or what is happening in a particular case. I think that one can say that juries are becoming a little suspicious of "verbals" and things like that. So far 1613 as my own experience goes, many years ago now, I used to be responsible, as a Law Officer, for the conduct of criminal prosecutions in Scotland. I formed two very clear impressions, although they were not based on anything that one could call evidence. One was that the police never harassed a man who had no record—virtually never—but if a man had a record and if they were convinced that he was guilty of the offence in question, then sometimes—not very often, but sometimes—they used very undesirable methods. I have no doubt that the position is not very different to-day. Therefore, if we are to start altering the present position we must alter it in a direction which will lessen any temptation of the police to overstep the mark.
Central to the whole problem is the so-called right to silence. If we can solve that problem, the others will not be very difficult. If we apply the tests which I have suggested I do not think that the solution is so very difficult. If you are to get rid of the right to silence you must have a system. I do not believe there is such a thing as a right to silence; it is not a human right. A great deal of trouble has been caused in our controversies by theoretical approaches. You say "Oh, well, the Crown must prove its case." You make all kinds of generalities instead of looking at the vital question: Are you being lair to the accused? Instead of that, you ask whether this complies with some generality which does not matter a bit in comparison with the practical realities.
My Lords, if we take as the test fairness to an accused person, perhaps a sub-standard person of the kind I have been discussing, then why not a fair interrogation? What innocent person would ever object to a fair interrogation? The reason why the right to silence has grown up is that in past times it was impossible to be in the least sure that interrogation would be fairly done. Unless we can be sure to-day that interrogation can be fairly done we should not have it. But I suggest that we can be sure. Of course, it is unpleasant for the accused; but so is being accused, and so is appearing at a trial, and so is the whole process. But why should it be unfair? The purpose of the safeguards is not to give the guilty man a sporting chance; it is to see that the innocent man is as fully safeguarded as human ingenuity can achieve. 1614 If we can achieve a fair interrogation, then on what possible ground can any innocent person object? I can see none. As I say, it may be embarrassing, it may be unpleasant; but I cannot see how an accused person can possibly object if he can be assured that his interrogation is going to be entirely fair.
How are we going to do it? It seems to me that there are two vital safeguards. What I have in mind is that a week after the arrest—or it may be later, depending on the complexity of the case—there should be a formal interrogation. The man should be brought in. He can see his solicitor beforehand; or, if you like, his solicitor can be there. He should be told: "You are going to be asked questions. We cannot compel you to answer; but remember that the record of what you say will be read out to the jury and they will be allowed to draw their own conclusions". It can be commented upon if necessary, but there must be an accurate record. Therefore it will be necessary to have either a reliable tape-recorder or a shorthand writer. There must be somebody in charge of the proceedings, not necessarily a magistrate; it might easily be a panel of part-time people. Of course they would have to be paid, and perhaps it would be far better not to have one man all the time. It could be someone who need not know much about the case but would be there simply to see fair play. The police could employ counsel or a solicitor to examine the man and the tape-recorder would show whether that had been fairly done. The man or his solicitor would object if it was not. The person in charge would be there to make a report if necessary.
It is said, my Lords, that that kind of procedure might cause delay. I do not think that it would. It would save a great deal of time. It is said that it would cause expense. Of course it would. It would be elaborate, it would cost a good deal, but it would save ten times as much in the time of the court later on, because a great many people would be so shown up that they would not dare to plead not guilty. Far from being a disadvantage for the innocent man, it would be a great advantage, because his solicitor would advise him to be candid, and he would be candid. I was rather shocked to hear that in a 1615 certain sphere of police prosecutions 25 per cent. of them were brought although the police thought that the people were not guilty. I cannot believe that that is rife. If it is, it is extremely stupid, because the police will lose their reputation if they prosecute people they know to be innocent. I should have thought that any sensible police force would investigate what a man told them and see whether they had a case that would stand up or whether the man's story was likely to be believed, or at least sufficiently believed to raise a doubt. In many cases, if there were a proper interrogation the result would be that an innocent accused, who otherwise would have been sent for trial, would never be tried at all.
Apart from theoretical objections about a man's right to silence and the Crown having to prove its case, and so on, I have yet to hear any coherent reason why this system should not be introduced. Of course it depends on the human factor. If we cannot be sure that tape-recorders or shorthand writers are not tampered with or that the man in charge is competent, then it will not work. But I do not believe that in these modern times we cannot be sure that a system of that kind will work. It is turned down by the Committee—I think on page 28 of the Report—in the thinnest and most unconvincing argument that I have read for a very long time. It is obvious that the Committee had no sympathy whatever for that kind of thing and that they were much keener on tinkering on without a radical reform. I must say, I thought that was about the weakest passage in the whole Report. They brushed the matter aside. I agree that if the purpose of these so-called principles is to give a guilty man a chance, of course this system will not do; but if the purpose is to help the innocent man I suggest that it would be favourable to him and not the other way. Therefore I put that forward as something which ought to be very seriously considered.
My Lords, I want to make clear that in no circumstances would I support the giving of any additional questioning power to the police without those safeguards, and it seems to me that the Committee are giving additional powers to the police. I would not allow to the 1616 police one jot or little of additional power to question anybody beyond the power they have at present. I would not interfere, as a first step at least, with the present system down to, as I say, a period of a week after arrest, when we would have this interrogation. Let the police carry on the way they are doing at present. But, of course, if they got some statement during that preliminary period it would have to be put to the man at his investigation. It would then be so fresh in the minds of everybody that it would be much more difficult for the police to get away with a false statement and much easier for the accused man if he denied it straight away. I should think that the temptation to the police to misbehave at an earlier stage would be greatly lessened if there was a formal interrogation of this kind at a pretty early stage after a man is arrested. But the one thing I want to make perfectly clear is that in my view any increase in powers to the police beyond what they have at present would be absolutely dependent on a proper system of safeguards being introduced, and not one tittle would they get without it. I think that is the general view of all the critics.
My Lords, I do not think I need to elaborate the matter any more; I do not want to speak for too long. But I think that your Lordships would find there would be a very considerable saving in judicial time; I think you would find that the crisis could be very greatly abated if we did something of that kind. But, of course, not immediately because a system of that kind could not be introduced overnight. You would need to have something like a pilot scheme. You would have to select certain areas—or certain offences might be better—in order to get the thing working. You cannot work a somewhat revolutionary system straight away without a trial period. But I do not think that is any objection. You could call it revolutionary, but I do not regard that as an objection when you are faced with such a serious crisis. I am satisfied in my own mind that nothing far short of the revolutionary kind of change that I have suggested will serve to solve the present crisis which is so much on the mind of my noble and learned friend on the Woolsack.
My Lords, there is just one other matter that I should like to mention. 1617 What is to happen next? I trust that the Government will put the Report aside and say, "We have got to start again". I trust that they will send the whole subject immediately to the Law Commission. It is perfectly true that up to date the Home Office has been traditionally interested in criminal law simply because there was nobody else to do it. The Lord Chancellor had no Department worth talking about and the Law Commission did not exist. But if, as my noble and learned friend said this afternoon, the Lord Chancellor has responsibility for the administration of the criminal law, how can this be outside his bailliwick? It cannot be.
Therefore I suggest that the time has come to take this away from the Home Office altogether and give it to the Lord Chancellor and the Law Commission. It really is not right that in a matter of this kind, which affects the lives and liberties of the lieges, an executive Department should be responsible for the administration and reform of the law. It ought to be done by a legal Department. It is quite true that when you have a technical subject, involving companies or bankruptcies, you cannot help leaving that with an executive Department. But when you have a subject of general interest like this I think it a very suitable opportunity to take the matter out of the hands of the Home Office and send it to the Law Commission; and when we get it there one hopes that we can begin to make progress.
§ 6.40 p.m.
§ LORD RITCHIE-CALDER
My Lords, when two noble and learned Lords, Lord Dilhorne and Lord Salmon, confess to trepidation, I wonder to what I should confess as the first genuine layman to follow this pride of legal lions. I should like to congratulate the noble and learned Lord, Lord Salmon, on his excellent maiden speech, particularly as I agree with it; and I hope that I shall agree with him on many future occasions.
I need not remind your Lordships that the discussions here to-day will have a resonance far beyond this Chamber and far beyond this country. This concept of justice has been the bedrock upon which judicial integrity has rested elsewhere. This was borne upon me 7,000 miles away in California, at the Centre for the Study of Democratic Institutions, where 1618 I am now a Senior Fellow. One of our continuing concerns is criminal law reform in terms of law enforcement, court practices, the penal system and the erosion and abuse of justice when the apparatus of law and order becomes paramount in a frightened society. Rights become subordinate to law enforcement, and law enforcement becomes more difficult as its instruments become distrusted and feared because the individual thinks that once entangled he will have no rights. This is the alienation of the public from the police, to which the noble and learned Lord, Lord Gardiner, referred, and which is so plainly manifest in the United States, and now, I am afraid, is also revealing itself here.
My Lords, the discussions at the Centre have been largely preoccupied with the deterioration in the United States, where the rights supposedly embodied in the United States' Constitution are being systematically betrayed. But those discussions tacitly assumed terms of reference based on British justice, and these assumptions were very badly shaken by the Report we are considering and by the draft Bill. A young British lawyer, Piers von Simpson, who had been a research assistant at the Centre and had returned to work in Britain came to the Centre to present a Paper, a critique of the Report—and one that I cannot fault after a close study of the Report—the Justice memorandum and the memorandum of the General Council of the Bar. The effect on my international colleagues, who included visiting Fellows from Eastern Europe and distinguished members of the American legal profession, including Robert Hutchins, was traumatic. To see the underpinning of the traditional standards of British justice being deliberately removed shook them; indeed, they were so shaken that nothing would have prevented me from coming back and taking part in this debate.
What are these "reforms", my Lords? First, the abolition of the caution and the reminder to the suspect of his legal rights—and the latter, at least, has been reinforced by the United States Supreme Court in the Miranda ruling. Secondly, the abolition of the right of silence, in which we now have a situation where we have the absurdity that anything you do not say may be taken down and used in evidence against you. Thirdly, 1619 the admissibility of hearsay evidence. Fourthly, the exposure of previous convictions to the jury. In our discussions at the Centre, when looking at the American scene, we watched the progress, and indeed the fights, on practically every one of these points; and always the assumptions were based on the solidity of British practice.
What is happening to the sacred principle that a person is considered innocent until he is proved guilty? I am not a jurist, but I have in my time been an official court reporter and a crime reporter in Scotland and in England, and I have had an on-the-job training in the rules of evidence and police practice. I say at once that I have a great deal of sympathy with the police in their difficulties in fighting crime, especially organised crime, which can afford expensive "mouthpieces"; and I know the exasperation of trying to establish evidence which will not stand up in court when the police themselves are satisfied of the accused's guilt.
But I would remind your Lordships that every innocent person who is brought to trial represents a failure of the police to do their preliminary work properly; and, as the noble and learned Lord the Lord Chancellor has pointed out, every acquittal is itself a miscarriage of justice—the innocent have been pilloried and the guilty have escaped trial. And the worst crime of all is the wrongful condemnation of an innocent person. We know the cases of innocent people going to the gallows, and no posthumous reversal can redeem that official crime. It is too glib and cynical to say that the Court of Appeal or a reprieve can salvage some innocent who will be condemned by the relaxed rules. And they will be condemned, my Lords, because the whole emphasis is on confirming police suspicions, clearing the police books and expediting and clearing the court calendar. Everyone admits that there is an enormous problem. It cannot be ignored and must be taken in hand. But let us be careful what we are doing in the process of trying to solve it. We may finish up, as they have in the United States, with a most deplorable practice, as I judge from the evidence I hear, of deals being done systematically between the judges, prosecution lawyers and 1620 defence lawyers in order to secure "guilty" pleas. This is going on, and systematically so, and so far pleas of guilty amount to about 75 per cent. of these agreed reductions in charges in order to secure a quick passage through the court.
From my experience in the courts and as a field operator in crime, I agree with those who say that the weakness of law enforcement is not in acquittals of the guilty in court but in the failure of crime prevention and crime detection before someone can be interrogated or brought to the stages covered by this Report. That failure, my Lords, will not be redeemed by the proposals being discussed. Hardened criminals or organised crime will not be deterred by these measures; the people at risk are those who are ignorant and without legal recourse. Or the implication—"disposition"—now sanctioned in the Report, which the police tend to make, as the noble and learned Lord, Lord Salmon, said, that "This job has Charlie's monicker on it; he's done it before". If he is no longer to be presumed innocent, his previous record will confirm the flimsiest evidence.
Then there is this business of silence being a presumption of culpability. This in my estimation, and that of so many other speakers here to-day, is intolerable. Silence can be the helpless confusion of someone caught in an apparatus. It is like relying on the lie detector. There is a proof of guilt. Why should a "blip" on a lie detector mean guilt, when it can be just anybody's reaction to, "Why is he asking that question?"? In the same way, why should anybody be at risk because, without full knowledge of what he is suspected of, he fears that anything he says may have implications beyond his knowledge? Similarly, I can foresee the worst abuses of hearsay evidence. I also think that it can defeat its purpose. When I was a crime reporter I used to co-operate with the police, not as a quid pro quo for priviledged information, but because I and most of my crime colleagues knew the difficulties of their job. The detective in charge of an investigation would say: "We think it's him, but he's got a story we can't break because he's sly". In such cases we would separately go and interview the suspect.
1621 It is curious that criminals will talk to the Press rather than to the police. They think they can get money (which in my own case, beyond a glass of beer, they would not), or even just that they can "get into the papers". We would talk around his story and find the flaws and, without publishing, tell the police; but they could not use us as hearsay evidence; they had to find the evidence through the chinks we had provided. Then there is the "hearsay" referred to, where there could be systematic blackmail on the basis of hearsay evidence and you could get people being charged anonymously. I would remind your Lordships of the classic case of Leonardo da Vinci, who was charged with homosexuality in Florence simply by somebody dropping an accusation into the anonymous box outside the Palazzo Vecchio. As in all these cases, nobody ever reminds us that he was acquitted.
Without suggesting the prevalence of third degree—though I suppose most of us recognise that it exists, and I have known it to be used in spite of the Judges' Rules —I have always felt that it is invidious for interrogation to be left to the police. It is unfair to them and it encourages a distrust of the police and their methods by the public. It needs only a few "rotten apples" and some "rough-ups" and the public at large, not just those affected, begin to distrust the police.
I do not want to make invidious comparisons with Scotland, particularly in the presence of the noble and learned Lord, Lord Gardiner, but I have always preferred the proceedings of the procurator fiscal to those under the English system. The procurator fiscal is, after all, answerable ultimately to the Lord Advocate. He is an officer of justice and not just a law enforcement officer in the service of the police. He can get from the police the facts and the witnesses; and in taking the precognitions he examines the witnesses, but not in the presence of other witnesses. He can invoke the judicial authority of a magistrate, with consequences of contempt of court if a witness refuses to give information in his possession, provided that that information would in fact make him a competent witness at the trial. The procurator fiscal's job is to satisfy himself that this is a case to go to trial. He co-operates with the defence in the interests of justice and not 1622 of securing a conviction. It is not an infallible system but it has merits which I find lamentably missing from this Report, and I would add my support to anyone who suggests that while we are talking about a judiciary system we ought to be paying some attention to the procurator fiscal.
One more point: I add my voice to those who distrust tape-recordings. In terms of tape-recordings I am a paraprofessional, for broadcasting purposes, and I know how easily tapes can be doctored most convincingly. I could produce to you a suspect's incriminating silence on a tape, produced by means of a magnet, even if, as the Report suggested, you had a speaking clock. If it were in a sealed casette, I could still produce an incriminating silence. In fact, tapes can be tampered with to a great extent. I would not trust a "walking bug"—I would not trust a policeman going round with a tape-recorder concealed on him. I have no doubt at all that it would not strain human ingenuity to produce some foolproof methods, but I should be very chary of any methods which are put forward now. I certainly would not entrust any of this material even to a senior police officer: it must be in the possession of someone who could not conceivably have any motive in tampering with it. I hope very earnestly—and I bring to you the earnest concern of my colleagues elsewhere—that this debate will in fact have fumigated and decontaminated this Report.
§ 6.56 p.m.
§ LORD WIDGERY
My Lords, as I listened to the noble and learned Viscount, Lord Dilhorne, opening this debate, and as he took us through this Report, item by item, expressing approval or disapproval on each item as he came to it, I was delighted to find that I agreed with virtually every assessment he made. That means that I need not weary your Lordships tonight by making any attempt to go through the wood marking the trees in detail. In substance, I certainly agree with what the noble and learned Viscount said, and I should like to express my views in that compact fashion.
There are two or three "trees", as it were, upon which I should like to make particular comment. I very much support what the noble and learned Lord, Lord Salmon, said about the suggestions 1623 in this Report relative to hearsay evidence. It may well be right—indeed, I think it is—that we should make some attempt to rationalise the law of hearsay; but some of the provisions in this Bill seem terrifyingly wide, as he indicated in the course of his speech. And I do not feel able to give any support to the Report in so far as it deals with this subject. Furthermore, I do not feel able to support the Report where it deals with the use of previous convictions on record. The Committee seem to have come to the conclusion that they ought to let well alone, but they failed to resist the temptation to put in some little change—and that little change seems to me to be undesirable and unnecesssary. I should be much happier on that aspect of the matter if we stuck to the common law and did not regard the situation as requiring any change at all.
I differ slightly from the noble and learned Viscount, Lord Dilhorne, in one respect: I think the Report is going on the right lines so far as it deals with accomplices and corroboration. It certainly is going along the lines which the Judiciary has been following, and I think wisely following. A few years ago the necessity for evidence to be corroborated meant that you had half a dozen highly technical points which got in the way of getting down to the real purpose of the proceedings, which was to decide whether the accused was guilty or innocent. You had a highly technical definition of "accomplice" and all sort of troubles were possible at the trial in deciding whether or not a particular witness ought to be regarded as coming within the range of "accomplice".
There was also a highly technical definition of what was meant by "corroboration" and many pitfalls for judge and jury were presented by arguments on that. But the modern tendency is to move to the situation in which it is the duty of the trial judge to give the jury, in straightforward and preferably simple terms, a warning about any evidence for the prosecution where he thinks that the witness may have some purpose of his own to serve and where, in the trial judge's opinion, a witness should be treated with particular caution. It may be urged that that is giving too much discretion to the judge. I think not. I believe that this is a field in which we 1624 must be more ready to give discretion to the judge. I think it is much better in the end to have the matter decided in that way rather than for it to be confined by these rigid and highly technical rules about what is and what is not an accomplice—with all the difficulties, and sometimes the quashed convictions, which follow from some error in that sphere.
I am somewhat concerned that so many noble Lords who have spoken in this debate seem to think that this Report and the attendant Bill are really beyond repair. My noble and learned friend Lord Reid made that point very clearly, and it has also been hinted at by a number of other speakers. I think it would be a disaster if we had to regard this Report as totally ineffective and had to start again by going back to the Law Commission. I find a lot in the Bill which is unacceptable, but at the same time it seems to me there is sufficient thought there to make us see whether we cannot somehow try to build on this foundation rather than after eight years to say that it is of no value and abandon it. I am troubled lest the general public may feel that the Report is hopelessly discredited, and themselves feel that there is no point in trying to preserve it on the basis of some of the general and rather emotive criticisms which one has read in the lay Press. A phrase used more than once was that this Report "stood the common law on its head". Another phrase used more than once was that it "reversed the onus of proof in criminal proceedings". I have read the Report with such care as I can and I cannot find any justification for sweeping comments of that kind.
I should like to take a moment or two with your Lordships to look at the right to silence, to see what exactly it is and where it comes from, because those who feel (and obviously feel sincerely) that the proposed removal of the right to silence is a great death blow to our traditional pillars of common law are, in my understanding of the law, incorrect. It certainly has never been the law of England, as I understand it, that a man could not be convicted on the evidence of his silence. There is an illustration, which is known to every criminal lawyer, known as the "doctrine of recent possession", which says in the clearest terms that if a man is found in possession of recently stolen goods, and he declines to 1625 give an explanation as to where they came from, his guilt as a thief may be inferred from that silence. I doubt if a day passes without some judge somewhere up and down the country in a Crown Court instructing a jury on those lines.
But it does not stop there. If an outraged father, whose daughter has been assaulted, publicly accuses a man in the street of the assault, and if that man remains silent when an innocent man would speak, a jury can properly be directed that they may, if they think it right, draw an inference of guilt from his guilty silence. The common law in the main accepted the fact that silence, where there appeared to be every reason for an innocent man to speak, was capable of use as proof of guilt.
Although the books contain a few rather desultory references to the fact that a man is not bound to inoriminate himself, I was intrigued to find that my noble and learned friend Lord Gardiner had to take us to the United States, and to the Miranda case for the authority he quoted this afternoon. The acceptance of any right to silence, or right against self-incrimination, in the English common law is something which I have never been able to find in any authoritative sense. The two instances where in practice the right of silence arises are too relatively modern exceptions to the common law, both brought in in the course of the past 70 or 80 years. The first one is the well known rule under Section 1 of the Criminal Evidence Act 1898, that if a man fails to give evidence at his trial, the judge can comment on his failure but the prosecution cannot. That is not one of the great pillars of English freedom; that is a rather odd rule which Parliament saw fit to incorporate in the Act of 1898, when it first gave the accused the right to give evidence. For reasons which we shall probably now never discover it was thought proper to say that although the judge could comment on his failure, the prosecution could not. That has remained so to this day, and that is the first place at which a man can reasonably be regarded as having a right to silence to-day, a right created by that Statute.
The other instance, which is regarded so widely to-day, has an even more unusual parentage. It is the right to remain silent under police interrogation, 1626 which has been referred to, with the corollary that if you remain silent you cannot have an adverse inference drawn against you. Where does that come from? It comes from the Judges' Rules, First Edition, of about 1906 or 1908. At that time the judges (with what we would now regard as considerable presumption) laid down these rules, and they provided for the giving of a caution. The caution was, to tell the man that he need not say anything unless he wished to do so. The only reason why a failure to speak does not give rise to an adverse inference is that it would obviously have been grossly unfair if the accused or suspect, having been told in terms that he need say nothing, was then caught in the trap of having an adverse inference drawn from his resulting silence. The so-called right of silence in that regard is the creation of the judges, a necessary consequence upon their having laid down that there should be a caution.
Although it has that rather peculiar and relatively modern beginning, it has been one of the major safeguards of suspects in police stations for the past 60 or 70 years. I fully recognise that and, in sympathy with a number of noble Lords who have spoken—among them my noble and learned friend Lord Reid—I would be entirely in favour of the proposition that we should not alter the Judges' Rules, take away the caution, or do anything about this aspect of the right to silence until we have provided something better to take its place.
I agree with what was said by my noble and learned friend Lord Reid, that if only we could achieve a situation in which one had a guaranteed tape recording of all police interrogation, so that after the event you could hear what was said, in what tone of voice, with what inflection, and one could see precisely what the suspect did admit to, and what he did not admit to—if we ever achieved that situation all our other troubles about police interrogation would go out of the window. I am in the same mind as one of the unidentified minorities in the Report who was minded to abolish the Judges' Rules and get rid of the caution, but who said that this was not to be done until proper arrangements for tape recording had been substituted. That is the attitude I would take up, and I would do it glad to see the departure 1627 of the Judges' Rules, for which I have no affection at all. I will not take up your Lordships' time in explaining why I do not like them, or what their disadvantages are; they are certainly not the ideal method of protecting the suspect to-day. I would be happy to wave them goodbye if we could substitute at the same time a proper system of tape recording which would show us precisely what had happened in the course of the interrogation.
My Lords, I hope that the Report will not be wholly rejected, but will be a foundation upon which we can build. Although we all recognise that it has many defects, it would be a pity if we could not use it as a springboard to other things.
§ 7.8 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
My Lords, this important debate, for the initiation of which we owe gratitude to the noble and learned Viscount, Lord Dilhorne, has shown how difficult, or, indeed, intractable were many of the problems tackled by the Committee. The fact that there is disquiet concerning many of their proposals will not diminish our admiration of the immense services rendered by the distinguished lawyers who comprised the Committee. For my part, the more I study the Report the more impressed I am by the meticulous care which the Committee devoted to an examination of so many problems. The fact that I have many reservations, or very serious apprehensions, about some of the recommendations, does not alter my view that the Committee were throughout inspired by a desire to be fair.
We pride ourselves that it is our aim to ensure that there will be complete fairness at all stages of criminal investigations and trials. But there must not only be fairness towards any accused or suspect person, there must also be fairness towards the community, which means that in a criminal trial the right result ought to be reached. This was the approach of the Committee as set out on page 15 of their Report. They said they hadno wish to lessen the fairness of criminal trials. But it must be clear what fairness means in this connection. It means, or ought 1628 to mean, that the law should be such as will secure as far as possible that the result of the trial is the right one. That is to say, the accused should be convicted if the evidence proves beyond reasonable doubt that he is guilty, but otherwise not. We stress this, although it may seem obvious, because fairness seems often to be thought of as something which is due to the defence only.When Her Majesty's judges assemble in Westminster Abbey at the commencement of the legal year to have a blessing upon their solemn duties, one of the prayers in reference to those duties refers to the fact that their function is to clear the innocent and to convict and punish the guilty. My Lords, note the priority, and no one connected with the Judiciary would doubt the validity of that priority. It is the aim and purpose of every judge to clear the innocent. But in the earnest effort to clear the innocent we cannot lose sight of the fact that it is in the public interest that those who are shown beyond all reasonable doubt to be guilty should be found guilty.
Recognising the serious state of affairs in regard to crime at the present time, I would not for my part relax any one of the principles which are really basic to our system. But I cannot feel that the interrogation or questioning of those who are suspect is of necessity anything unfair. Surely, the community has a right to make inquiries if a crime has been committed and when the author of a crime is being sought. No man can be compelled to speak and no man will be compelled to speak. But are there not times when no innocent man would remain silent? We all have duties to the State. We are required to disclose our personal financial affairs to the Revenue; we are required to give information at the time of a Census, and one of the paragraphs of the Judges' Rules records that citizens have a duty to help a police officer to discover and apprehend offenders.
The noble and learned Lord the Lord Chancellor made reference to Jeremy Bentham, and I think in this connection it is apposite to refer to a comment cited by the Committee in their Report that Jeremy Bentham made in regard to a then rule that suspects could not be judicially interrogated. He said:If all criminals of every class had assembled and framed a system after their own wishes is not this the very first that they would have established for their security?1629 And Bentham went on:Innocence never takes advantage of it. Innocence claims the right of speaking, as guilt invokes the privilege of silence.I see no reason, always provided that there are complete safeguards, why there should not be the inferences indicated in Clause 1 of this Bill. But the assurances would have to be complete, and they would cover the fact that in any questioning there should be no threat; there should be no promise; no oppression of any kind.
In order to ensure that, it would be very satisfactory if one could have various safeguards. I am contemplating questioning or interrogation not after some days in custody but at a very early date. It would be very satisfactory if you could have the presence of some entirely neutral person who could insist that all was fair. But I very much doubt whether that would practicable. Whether the neutral person was a magistrate or whether he was any well-disposed citizen, it would not be possible, I think, to have somebody available at all times of the day or night in a great many police stations.
The second safeguard I would think appropriate would be the safeguard of having recording, and though I listened with attention to what the noble Lord, Lord Ritchie-Calder, said I cannot help thinking the difficulties he mentioned could be overcome. The third possible safeguard would be that a person being questioned should be able, if he wished, to communicate and to consult privately with a solicitor; and now that there are the extended legal aid facilities he should whenever possible be given help to have a solicitor if he so wishes, because the cause of getting at the right result will never be impaired if there is fairness at all stages.
This leads me to the conclusion that I share the minority view expressed by the Committee on pages 30 and 31 of their Report. They said on page 30 that they considered that arrangements should be made for the compulsory use of tape recorders at police stations in the larger centres of population and that the operation of Clause 1 should be suspended until this has been done. They set out on page 33 their recommendation—it was 1630 the minority recommendation—in more detail, and they say that:the principal safeguard required is—the recording of the voices of all those concerned in an interrogationand—in the view of the minority, the operation of clause 1 of the draft Bill should be suspended until such time as provision has been made for the electronic recording of interrogations in police stations in the major centres of population. These police stations would in due course be specified in statutory instruments and statements made by suspected persons when under interrogation in a listed police station would not be admissible in evidence unless they had been recorded.I would take the view in regard to this question of interrogation of suspects, which I do not think would of necessity involve anything unfair, that the provisions of Clause 1 of the draft Bill should not be contemplated until after some system of recordings has been deployed and until it can be seen whether a system is satisfactory.
My Lords, I propose, as the debate has been so thorough and full, to deal with only one or two other matters. May I say in passing and without elaboration that I share the alarm that has been expressed in regard to some of the proposals concerning hearsay. Then there are clauses in the draft Bill and paragraphs in the Report dealing with the subject of corroboration. I think it is a useful recommendation that in the case of a child—that is to say, somebody under the age of 14—the evidence should not be on oath. That would involve that the evidence of such a child would have to be corroborated. As to the remaining suggestions in regard to corroboration, I rather wonder whether they are now necessary. There have been recent decisions which I think have to a considerable extent clarified the law in regard to corroboration, and I wonder whether there is any real need to seek to legislate at the present time.
There is one clause in the draft Bill which suggests that where a judge is advising the jury about corroboration he should do it in the words that, "There is a special need for caution". I doubt whether it is necessary to legislate in those terms. The reasoning of the Committee was that judges had been in the habit of saying to a jury that, though they may convict where there is no corroboration, there is a danger in so doing; and 1631 the reason was, "Well, is it not a little strange to tell a jury that there is a danger in doing this yet tell them in the next sentence that they may do it?" But that is all a matter of the way in which the learned judge would direct a jury. The danger is the danger that is always present, of an innocent man being convicted, and it is quite easy for a learned judge, when dealing with the subject of corroboration, to stress, when he is telling the jury that they may convict if there is no corroboration, that they may do so only if they are satisfied beyond all reasonable doubt.
I will just refer to one other recommendation of the Committee, of which I approve, and that is the recommendation in regard to a summing up in cases where there is disputed identification. There must be many cases where there has been disquiet because the conviction has depended upon evidence of identification. But there are different kinds of cases. There is the kind of case where a man says, "I know 'X' quite well and I saw him there on that occasion." That is merely a question of the witness's credibility and his opportunities for observation. But there may be another case where somebody says, "Well, I saw somebody leave the crowd, and do this and that"—somebody quite unknown to the defendant and maybe not seen again until the trial.
There is much to be said for attention being given to identification parades; possibly to having a photograph in court of an identification parade. But the recommendation in this clause is that where the case depends upon identification evidence the judge should warn the jury of the need to have special caution. For my part, I always take the view that it is unfortunate to impose too many compulsory obligations on a judge, that he must do this or must do that, and I can hardly imagine that in a case where so much depended upon disputed evidence of identification a judge would not direct the jury with the utmost care and point out all the differences. But, at the same time, as this is so important a matter in many trials, I think it may be useful to have the proposal that is set out in Clause 21 of the draft Bill.
I will deal with only one other topic, and that is the topic covered by Clause 1632 3 of the draft Bill: disposition to commit other offences. Here, as in some other matters, I share to the full the anxieties that have been expressed. I think the Committee were wise to come to the conclusion that, in general, evidence as to disposition to commit an offence should be rejected; but in subsection (2) of that clause what they have done is to seek to set out the existing law. Again I wonder whether it is necessary, and I wonder whether there are not perils in doing so. It so happens that the very same illustration occurred to me as occurred to my noble and learned friend Lord Salmon, which he mentioned in his speech. A man is charged with burglary; the allegation is that he has entered the house by going through a window on the ground floor. He has two or three convictions for burglary and has always entered the house through a window on the ground floor. I shudder at the thought that that evidence could ordinarily be given, yet on the wording of subsection (2), which is not intended to extend the law, it looks as though it could.
Subsection (4) is said to be what is called a "relaxation of the rule". I would not favour any relaxation of this rule. There are some cases—and I should have thought the law on this was reasonably clear—where, in order to prove intent or to negative a defence of accident, or in order to show that something was not entirely innocent conduct, it is possible—and rightly so—for evidence of other occasions to be given. But I would not wish to extend that law. Everything that is expressed in the phrase, "Give a dog a bad name and hang him", appeals to me very much. I believe that a man ought to be convicted only if the evidence against him shows that he has done a particular thing and not because part of the evidence is that he is a man who, because of what he has done in the past, may be likely to do the same thing again.
§ 7.28 p.m.
§ THE EARL OF MANSFIELD
My Lords, may I preface my remarks by adding my thanks to the noble and learned Viscount, Lord Dilhorne, for giving us an opportunity to debate this matter this afternoon. On the very first occasion that I addressed your Lordships' House, which was on the Second Reading 1633 of what is now the Criminal Justice Act of last year, I welcomed the various proposals of that Act but said that the real deterrent to crime would be certainty of detection and conviction. I see no reason to depart from what I said then.
There is no doubt that public confidence in our criminal law, and indeed our criminal procedures, is at an all-time low. That is exemplified by the number of noble Lords who, throughout this debate, have sought ways to stop the police from behaving in a thoroughly disgraceful, and certainly illegal, fashion rather than trying to discover ways of stopping criminals. There is no doubt in my mind that a great many of our procedures are outmoded, and I can scarcely do better than quote from the Commissioner of the Metropolitan Police, who said this in a recent speech:A criminal trial to-day is more a test of tactics, eloquence, expertise and self control than of guilt or innocence".If I may respectfully agree with the noble and learned Lord, the Lord Chancellor, in many of our criminal procedures and practices there is an air of artificiality. A criminal trial on some occasions, especially in the lower regions so far as the courts are concerned, before a jury, resembles more a cricket match. The prosecution goes in to bat and the defence tries to knock spots off him as he plays his evidence. Then the defendant, if he chooses to, goes into the witness box and is followed by his witnesses, and the Crown tries to do the same. The judge sits at the top, more or less seeing that fair play is observed by both parties, and at the end the result is declared. Those who have spoken to some of the people who have taken part in these trials, either defendants or more especially witnesses, are astonished by their view of much of what has taken place.
The noble and learned Lord the Lord Chancellor asked why jury trials were taking so much longer these days. I suggest that one reason why they are taking longer than they took, say, seven years ago is the invention of the photostat machine. When I was first called to the Bar criminal trials were a battle of words, whereas now they are virtually a battle of paper, with endless maps, schematic drawings, schedules, lists and so on. They are immediately reduced to paper, copied 1634 for every member of the court, the jury, the witnesses, the defendants and all those engaged in the trial, are commented on endlessly and finally pronounced on, one assumes, by the jury in their verdict. If any adminstrative action could be taken by my noble friend or the Lord Chancellor to shorten modern jury trials it would be to abolish, or at any rate curtail, the use of the photocopier.
Though I am being somewhat facetious in this matter, I should like to approach the subject as a practitioner, or as a recent practitioner, from the point of view of the acquittal rate, something which causes so much trouble, especially among members of the public. It is not easy to obtain figures and I shall no doubt be corrected if I am wrong. The usual consensus is that in contested cases before juries the acquittal rate is in the region of 40 per cent., which I suggest is much too high. In other words, out of 100 people who plead not guilty, no fewer than 40 get off scot free. I will look briefly at the reasons for this, and I suppose that they are threefold. The first can be regarded as the changes in education and in social patterns. The age-old idea of a criminal as being a man with a flat skull and a very blue chin, unable to talk or even think, has gone forever. Modern criminals—I deprecate throughout the Report the use of the words "hardened", "professional" or "sophisticated" when referring to criminals—are just people who are very much better educated than they used to be and are far better capable of preparing their defences.
I recall some years ago defending a young gentleman who was a member of what used to be called the old "Hoxton mob", and, as such, an aristocrat of crime. He was accused of breaking into premises, this being before the days of the alibi having to be produced for anyone's inspection before the trial. My instructing solicitor came to see me in my chambers in order to get advice on evidence, and he produced a list of potential witnesses which mostly consisted, to my untutored eye, of stars of stage, screen and radio. I did not know whether to be more appalled because the young gentleman in question actually mixed with those people in his off-duty moments or because they were prepared to perjure themselves at his trial. Be that as it may, 1635 luckily I managed to secure his acquittal on a submission of "no case to answer" and therefore did not have to call them. That is one example of how times have changed.
The second reason I wish to advance is the growth of legal aid and the now excellent defences which are raised by defendants. When I started at the Bar one's instructing solicitor was a managing clerk—your Lordships who have read books by Henry Cecil will agree that he adequately describes these people—whereas nowadays one's instructing solicitor is a highly qualified, neat gentleman who has thought up most of the defences before one has oneself, and usually before the client. The result is that defences are now more than adequately presented for the edification of the jury.
The third reason is, I suggest, the changes in attitude on the part of the community. There is no doubt that the phrase "permissive society" is out moded; it has been used much too much and in far too many connections. There is, however, certainly a reaction among members of the public who serve on juries against, as it were, interfering in other people's affairs and lives. If one is appearing on behalf of the Crown it is extremely difficult to obtain a conviction for certain sex crimes, notably incest, and I think the acquittal rate in sex crimes is as high as 57 per cent. in contested cases. I make no complaint about that, though it is an indication of how public attitudes have changed over the years. The attitude now seems to be that what people want to do in the privacy of their own homes or wherever it may be is not something for the public to investigate.
The fact is also worth mentioning that there are now many bodies and people most anxious to help the potential criminal. I prosecuted a young gentleman not long ago who was charged with rape. There was no doubt that he had raped the girl; the noise that came from the flat after a party and the injuries she received stopped any defence of consent. He went to ground for three or four days after the incident and duly appeared at West-End Central Police Station with a solicitor, a written out statement which had obviously been 1636 drafted by the solicitor, and a small card which had been issued by the National Council for Civil Liberties—a sort of "do it yourself when arrested kit". It was only with the greatest reluctance, when his possessions were taken from him in the police station, that he would give up his card. Among his possessions was the card and he knew exactly what to do and say.
My Lords, I hope that I have not been too facetious about this subject. I appreciate that there are a great many matters contained in the Report which are impracticable and might well be unjust if put into execution. Nevertheless, I urge the Government not, as it were, to let the matter stand still, and above all not to go back and start this process again. I submit that there is at least one area where reforms could be initiated now, and I refer of course to cautions and confessions. Of all the artificialities about our English legal system—and I speak as a Scot—I think that cautions are the most artificial. For one thing, they are hardly ever used in the sense that we think of them. They are certainly never used as the court is told they are used.
I remember once, when a very young member of the Bar, going to Bromley Magistrates' Court to defend a gentleman who was found in an arcade with a brick in his hand. The supposition was that he was going to throw it through a shop window and take some jewellery. He was apprehended by an equally young detective constable—at any rate, lie was young to me—and arrested. He complained to me—he of course pleaded not guilty—that he had never been cautioned, and he told me that the detective sergeant had simply said to him, "All right, Ginger, what are you up to this time? In any event, you're nicked." To my great surprise, when I put this point to the young detective in court, he admitted that that was precisely the conversation, and he agreed that there had been no caution and no words about the arrest other than the use of the word "nicked". I invited the Bromley magistrates to infer from that admission that the detective could not be regarded as a witness who could be relied upon and urged that my client be acquitted. Curiously enough, they failed to agree with me. Some time later I met the same officer, by then a dignified detective 1637 chief inspector, and he told me with a grin that he had never made that mistake again. Both of us had learned something from that occasion.
The point is that many of your Lordships, who perhaps have been concerned with rather higher planes of the criminal law than I have, do not quite realise what happens when a suspect is apprehended. Let us take the case, for instance, of a lorry hijacking or a robbery. One man is apprehended near the scene of the crime, is put into a police car and the police are very anxious to find out, first, what has happened; secondly, who has done it, and, thirdly, where the property is. If they have to wait until they can get that man before a referee, a tape recorder or a magistrate, the whisky, or whatever it is, that has been hijacked will have gone, the other members of the gang will have gone and they will be left with only the person they have in their hands. In other words, interrogations start very frequently in circumstances and at a time when it is impossible to have these safeguards which have been put forward by certain of your Lordships. It may be that if in the future we go over to an inquisitorial system, as opposed to our accusatorial system, the slowness will not matter because—if I may use the expression—it will all eventually come out in the wash. I wonder whether it will, and I shall be interested to hear from any noble Lord how this problem is to be overcome.
In my submission, the police, of whom I have met very many, and talked to very many in off-duty moments, are a much maligned body of men. There are in the Metropolitan Police area 20,000, 22,000—or whatever the number is. Some apples in the barrel are bound to be rotten. But basically the police do their job well and conscientiously, and if they are given the freedom to do it as they think best I am quite certain that there will be very little dishonesty on their part. Where one begins to get dishonesty is where a police officer conscientiously and honestly prepares a case and, in spite of that, a jury returns a verdict of not guilty. It is that depressing effect, especially on a young police officer, which puts him in the attitude of starting to take short cuts, and the easiest shortcut to take is to manufacture what has 1638 been called "a verbal". I should not think it beyond the wit of my noble friend and his Department to sweep aside the Judges' Rules and make a new system, or code if you like, which would depend entirely on whether a judge who is trying a case is satisfied that there has been no inducement, no undue harrassment, and above all no threat of physical violence. In that situation, I would submit that anything that an accused person said should be put before a jury.
The other matter I was going to talk about was the right of silence. Other noble Lords have already covered that matter more than adequately. As I say, the time may come, if we have an inquisitorial procedure, when the right of silence may go. As things are at the moment, I feel that it would have to stay, if only because a person may be interrogated in the wrong way for the type of activity he has been up to. By that I mean that he may be asked a "When did you last beat your wife?" type of question, and if he says nothing it would be manifestly unfair if that were to be taken against him. Equally he may, as we say in the law, want to "confess and avoid", get it wrong and have that taken against him. In the circumstances, therefore, I feel that the matter is best left as it is.
§ 7.44 p.m.
§ LORD GOODMAN
My Lords, at this hour I shall be as brief as I can, but there are a few points with which I should like to deal. First, may I join in the thanks and congratulations to the noble and learned Viscount who has enabled us to have this debate this evening. It is an exceptionally valuable debate. For me it has been a very gratifying debate because it has disclosed something of which one sometimes has some doubt, and that is the unanimity of the legal profession when things which really matter are under challenge. Every branch of the profession has had some comments to make about this Report which are all directed to the same thing: whether or not we shall preserve an adequate system of justice. I should like to say this: I am wondering whether in this long and extraordinarily interesting debate, with a standard of speaking which to me, as a lawyer, has been exceptionally high and valuable (and I hope that the few laymen who have survived 1639 the debate have found it equally interesting) we have perhaps missed one factor, which is the context in which we are discussing the whole matter, the context of how to preserve law and order, and whether there is an alarming increase in crime which in some way will be rectified by an alteration of the technical rules of evidence in criminal trials.
I would venture to address your Lordships' attention to the great city of New York which I recently visited and which I visit quite frequently. There there is an atmosphere of an almost total civic paralysis as to whether it is possible to restore law and order to an extent that people can live there in safety and tranquility and as civilised human beings. I venture to suggest to your Lordships that no alteration in the rules of the Criminal Evidence Code of the State of New York will make the slightest difference to the situation. The situation is caused by an inadequacy of the police force. It is caused by the fact that the citizens have ceased to have confidence in the police force. The greatest metropolis in the world, as it must now claim to be, lacks an adequacy of policemen, as a result of which the most appalling things happen there day after day. I am sure your Lordships will recollect the case of someone who may have been known to some of the lawyers here, as he was known to me. He was a very distinguished professor of law, who left this country, went to Australia and then to the United States, and who was stabbed in open daylight in order to preserve his briefcase which unknown, ironically, to the criminals, contained nothing but his lecture notes, for which he paid the price of the loss of his life.
I venture to say that we may be losing sight of the realities of the situation if we think that we are going to repair the situation to any relevant extent by the sort of discussion that we have had this afternoon. Of course it is necessary to have appropriate rules of evidence, but one thing we must bear in mind is that the preservation of a system of social order depends upon having an adequate police force, a properly paid and honourable police force, and a police force that has confidence in the Judiciary. If the police force presents cases to the judges in the belief that there will be either convictions or acquittals that are not related 1640 to the highest principles of abstract justice then that police force, whatever its size and however well paid, will be an inadequate force.
I have sensed in the debate some feeling that it is rather bad form not to say a word of praise to the Committee who have prepared the Report. May I therefore hasten to say that I am very willing to say a number of words of praise to the Committee who prepared the Report. Particularly I would point out that even our critical discussions this afternoon have failed to touch on at least 19 of the very substantial sections contained in the Report. We have touched on only five of them. That should be said, in case one gets a rather distorted view of our criticism. My principal criticism of this Report, meticulously prepared by men of immense probity and learning, is that they seem to have started with a postulate and with an assumption that has not been established. This Report might have been entirely justifiable if it were indeed the case that a great number of guilty men are being acquitted by our courts. But there does not appear to me to be any evidence of this, except for some very suspect statistics of the type presented to us in the extremely attractive and interesting speech of the last speaker. Everyone of us said that 40 per cent. of the people charged on indictment are acquitted; then, in what was a memorable maiden speech, the noble and learned Lord, Lord Salmon, pointed out that this was far from being the case because it did not take account of the large number of people charged on indictment who pleaded guilty before the question of any issue before a jury arose and that the actual percentage was 14 per cent. But be it 40 per cent. or 14 per cent., what does it prove? Unless we know the circumstances of those trials, unless we know from some valid investigation that in some relevant quantity of those trials guilty men are being acquitted, it seems to me that not only are those statistics irrelevant but they are misleading and positively dangerous and no account should be taken of them at all.
If there is a widespread belief that a large number of guilty men are being acquitted, it is probably necessary that as a preliminary to a further inquiry about this matter there should be a commission of some kind to inquire into that 1641 very fact. It is a fact that is refuted, and vigorously refuted, by the people who should know best. It was vigorously refuted by Lord Salmon. It has been vigorously refuted in the very careful memorandum prepared by the Criminal Bar, who said that in their experience a large number of guilty men are not being acquitted. Who can know better than they? But it is not incumbent upon us to accept anyone's word. Let us inquire for ourselves before we set about root-and-branch changes which undoubtedly will have adverse effects in connection with the system of justice we have operated for generations; lot us see whether there is a valid case for making these changes. I think that is the first preliminary into which we need to inquire.
The second point I venture to make is that we have, on the whole, a system of justice which is based on the belief, enunciated with great spirit by the noble and learned Lord, Lord Salmon, that it it better to acquit ten guilty men than to convict one innocent man. I think the arithmetic of that is perhaps a little too generous; it may perhaps be better to acquit three guilty men than to convict one innocent man. But what is absolutely certain is that no one can produce an exact equilibrium in this matter. If our system is, as it is suggested it is, biased in favour of establishing innocence rather than conclusively establishing guilt, it may be that some redress is necessary, but certain it is that we cannot arrive at an exact equilibrium. It would be flattering even the wisdom of this Chamber to believe that we could devise a system which would unerringly convict the guilty and acquit the innocent. That we cannot achieve. But we have to make a considered decision as to which it is that we prefer. I regard myself as a very fallible human being and I have never excluded the possibility that I might find myself in some trouble before one of these distinguished gentlemen. I therefore have a very strong preference in favour of a system that will ensure that the innocent are invariably acquitted and the guilty perhaps occasionally acquitted as well.
The suggestion was made that this Report should not be wholly discarded. I think it would be unfortunate if it were 1642 wholly discarded. It clearly contains a monumental amount of considered work which it would be a great social folly and terribly uneconomic and extravagant to throw away. But we must slightly suspect this Report as the basis for legislation, simply because we have the belief that the people who prepared the Report, the Committee, set off to correct a situation which may not perhaps exist at all. Hence I think everything in this Report must be viewed with considerable reserve. That certainly does not mean that this mammoth task, the work of years, should be thrown away and not made the basis of some legislation in respect of those sections of it about which there would probably be general agreement.
I should like to touch on the suggestion which was made by the noble and learned Lord, Lord Reid, that it would be desirable to exclude the Home Office from this situation and transfer the responsibility to the Department of the noble and learned Lord, the Lord Chancellor. No one has a greater respect for Lord Chancellors than I have, and I would regard the exuberant speech made by the Lord Chancellor this afternoon as perhaps not entirely representative of his normal mood when he comes to legislation in this matter; otherwise, I should be a little frightened of the consequences. In any event, it is unkind to criticise that speech because it gave us very great pleasure. I might perhaps be entitled to say that it did not appear to me to deal entirely with the matter under discussion. He told us in the most fascinating fashion how he had used his ingenuity to find unexpected locations for law courts, a matter, so far as I know, not mentioned in the Committee's Report at all, and he recommended with great fervour the abolition of juries for a great many causes, just when the Court of Appeal has firmly re-established the right to have a jury.
§ THE LORD CHANCELLOR
My Lords, with respect, the noble Lord must not allow his own exuberance to get the better of him. What I talked about was breathalyser cases, trivial thefts and very long fraud cases.
§ LORD GOODMAN
My Lords, as I say, I enjoyed the speech very much and it would be ungracious and uncharitable to criticise it in the slightest degree. I 1643 do not think it arises in connection with what I want to say. But what I feel rather strongly is that whomsoever we refer this matter to must have a realistic view of the whole situation. It is not enough to refer it to the lawyers who are concerned only with criminal trials; we must refer it to people who can take a broader view and see the whole matter in the context of crime at large and how to deal with crime. That seems to me a very crucial consideration.
May I touch on one or two points in the Report? There are one or two matters that seem to me rather fundamental. On the question of the right of silence, I would certainly not engage in controversy with the Lord Chief Justice of England as to whether or not that right is enshrined in our law, but it seemed to the Committee that it was, because in a particular paragraph they say so. The right of silence was understood by them to be a right not to make any statement when you are apprehended—that is what it really boils down to. Historically, the reason for the rules and the safeguards that have existed is not because people are concerned so much about what the man may say, but they are deeply concerned about what may be reported, which is quite a different matter. The number of times in criminal trials where immense controversy and detailed argument goes on about whether or not a statement has been made, with or without the safeguard of a warning, would be increased a hundredfold if we introduced a system where it was indispensable that a man should make a statement because he would know that if he did not it could be used to his detriment.
And what safeguards can you introduce? You cannot introduce tape-recorders for the excellent reasons Lord Ritchie-Calder gave; voices are not clearly distinguishable, they can be tampered with. Tape-recorders would not at this stage be safe. You certainly cannot introduce the safeguard that the man can summon his solicitor to the interrogation. How many solicitors would you require? Men are being arrested all over the country every hour of the day. Solicitors, if I may venture to say so, are people of the highest standard of public service, but the notion that they would gallop off like bumble bees every time 1644 they were summoned in the middle of the night is, I think, stretching the belief in the degree of public service they are prepared to extend.
There are, in my view, no effective safeguards that can be achieved to ensure the exact accuracy of what is said, and the whole of this dispute turns on the question of the exact accuracy, on the doubt or disbelief that what is recorded by a policeman is exactly accurate. I would echo every word of what is said about our police force, with whom I have considerably dealings; I do not believe there is a better police force in the world. I certainly have not met a better police force, wherever I have been. But the fact remains that a police officer is a man who starts off with predisposition towards a belief in the guilt of the accused man. Hence it is not a remote possibility that what emerges of what the accused man said is the police officer's notion of what he said in that context. It would be grossly unfair to the police to impose on them the obligation of taking a statement every time they saw fit to make an arrest or interrogate someone. I believe that that is a dangerous situation.
In relation to the necessity to give evidence, or if you do not give evidence to have it used as a factor against you in connection with your guilt, I would venture to point out that it would create a situation (although this was challenged by the Lord Chief Justice) where the onus of proof changed entirely, because however tenuous the case the police might have against a man, on which they would be very wary of launching a prosecution at the moment, if this new rule were introduced they would have a situation in which they could add to that tenuous evidence the certainty that the man has to go into the witness box or has to explain why he does not. If he does not go into the witness box, and if they should happen to know that there is some embarrassing or even criminal circumstance that he does not want to explain, then his conviction, I should have said, was inevitable. The police, therefore, would be given the opportunity of launching prosecutions on the basis of much less secure and established evidence than is at present the case.
Then there is the other rule: that if you are apprehended and interrogated 1645 you are at a disadvantage if you fail to state any circumstance which you later wish to adduce in evidence and which you would have known at that time, This appears to me an appallingly dangerous principle, and also a principle that can be reduced to considerable absurdity. A rather inelegant example came into my mind in the rare instance of a man who happens to have been castrated. If this man is charged with rape, it may well be that he will omit to state this rather vital fact—as indeed occurred in another case to which I will refer in a moment. Thereupon, if he wishes later in his trial to introduce the fact that he is castrated, it can be used only as corroboration of his guilt. This is a reductio ad absurdum that is entirely admissible from the provisions of this particular section.
I would remind your Lordships of a case in which the late Sir Arthur Conan Doyle was involved. It was one of his great feats of private detection, as opposed to the stories he wrote of detection. It was a case of a young solicitor in the Midlands, or the North, who was charged with a weird offence of attacking and mutilating animals. The young solicitor was a man against whom there was a good deal of local prejudice on personal grounds. He was, I think, a Parsee, though I am not sure. In any event, he was charged and convicted, and after his conviction there was an agitation because his family continued to believe in his innocence. Conan Doyle saw him in a cell. I should perhaps add that I am reciting the facts from a biography of Conan Doyle, so I must not be taken to task for their exact accuracy; but I believe that they are correct. He saw the man in the cell, and observed that he had the most defective sight, and that he was quite unable to see without the use of the thickest glasses. As these crimes had been committed at night, and required the most delicate incisions to have been made, it was absolutely impossible for this man to have committed the crimes. If this man had been interrogated by the police, and if, as was indeed the fact, throughout his defence he did not raise the point because it did not occur to him or his advisers, his failure to make that point at that stage could be used only as corroboration of his guilt. One can multiply this sort of situation a considerable number of times.
1646 On the question of previous convictions, I should like to read a passage from page 36 of the Criminal Bar's excellent memorandum. They recite from a judgment of Lord Goddard. This was in the case of R. v. Harrison-Owen. He said, at page 110:The Appellant is a man of very bad character, with a list of convictions against him for larceny and housebreaking and the like, and it is quite obvious that once those convictions were before the jury be would have no chance of acquittal.I would venture to remind the noble and learned Lord the Lord Chancellor of what he himself was saying in this context: because what he is saying, and what this Report is saying, is that there are cases where we are prepared to accept a conviction based only on the previous convictions and on no other adequate evidence.
§ THE LORD CHANCELLOR
My Lords, the noble Lord, in his exuberance, is really going far beyond what he is entitled to. I never said anything of the sort. I made no comment on what the Report may be saying. I do not think the Committee did, either, but I am only concerned to defend myself. I never said anything that could remotely be construed in that sense.
§ LORD GOODMAN
My Lords, I would recommend to the noble and learned Lord the Lord Chancellor that he should study Hansard carefully to-morrow, and it may be that a short note of apology will be reaching me; but I shall love him none the less if it does not. He said something that closely resembled that, and in my view exactly resembled it.
§ THE LORD CHANCELLOR
My Lords, let me make this abundantly clear: the noble Lord has accused me of saying that I would support a conviction based solely on the previous convictions of the accused. I neither said anything like it; nor did I say it; nor could anyone reasonably have thought that I said it; nor do I think it.
§ LORD GOODMAN
My Lords, I have listened to some emphatic denials in my time, but I think that that one takes the prize. I would only say to the noble and learned Lord the Lord Chancellor that the last thing I wish to do is to suggest that he said something that he did not say. It is not necessary for me 1647 to pursue this, because quite clearly that is the result achieved. If the evidence is so slender that it needs to be reinforced by previous convictions, the practical effect of this is that the conviction is achieved by the previous convictions and not by the evidence of guilt in the particular case concerned.
I have kept your Lordships too long. I would only add that I hope we shall reform the law in the fashion that it needs to be reformed. I hope we shall take very much into consideration the first and paramount need that has been expressed by several speakers, and that is to ensure the apprehension and conviction of delinquents. If the delinquent is apprehended, if we have an adequate and sufficiently paid police force, and a real change in the statistics showing whether the man is going to be caught and convicted, then our problem in this matter will certainly be greatly reduced and will probably disappear. But if we do not have an adequate police force, if we are mean in paying them, and do not enlist sufficient numbers, then these problems will continue, whatever changes we may make to the law of evidence.
§ 8.6 p.m.
§ LORD DIPLOCK
My Lords, at this late hour in the debate it might be more seemly if I exercised my "right to silence", but we are discussing the Report of the Criminal Law Revision Committee, and I should not like this debate to end without a word or two being said in gratitude and support of the work which that Committee have undertaken. I would wish to approach this not from an emotional point of view beyond saying that, no more than my noble and learned friend Lord Salmon, whose eloquent maiden speech I listened to with admiration, would I wish to erode in one particle the protection of the innocent accused. But, having said that, may I get away from emotion and say why it is that I think that the Report has much to be commended in it.
The law of evidence in civil and criminal cases is illogical and in a mess, and needs to be cleared up. I do not care whether it adds to more convictions of the guilty or not, it needs to be cleared up. May I, before I go through the ways in which the Committee recommend that 1648 it be cleared up, say in passing, and getting rid of the criticism before I come to the praise, that I agree with what has been said on all sides in this House as regards Clause 1: any inference from silence should not be drawn until some provision has been made, by guaranteed tape recording or otherwise, to make sure that the material from which the inference can be drawn is put accurately before the jury. Secondly, I would express some reservations about Clause 3 on previous convictions.
Having said that about my reservations, may I depart a little from what my noble and learned friend Lord Dilhorne said, and say a few words about the origin of this Committee. At the same time as the Criminal Law Revision Committee was given the reference on the law of evidence in criminal cases, another Committee, which operated through a sub-committee of which I was Chairman, the Law Reform Committee, was given similar terms of reference about evidence in civil cases. Fortunately, in civil cases one does not grow emotional. Our object in civil cases was to see whether we could bring into this mumbo-jumbo of rules of evidence, which are without logical basis and much of them historical, the rationality that Jeremy Bentham had recommended nearly 150 y ears earlier. And let me say this, that the problem is the same in civil cases as in criminal proceedings; that one is looking to see what material should be put before the court which will enable it to ascertain the true facts. The only difference is that the degree of confidence in the facts in criminal proceedings must be greater than in civil proceedings.
It is not necessary for me to tell this House, or to commend to this House, what we recommended about civil evidence, because that is now part of the law of the land. It has had the approval of both Houses of Parliament and is embodied in the Civil Evidence Act 1968 and in the Civil Evidence Act 1972. The recommendations in the Bill about hearsay in criminal cases are, in substance, identical with those which this House and the other place have approved as suitable in civil cases. They recognise that the object of the law of evidence is to deal with the material which can be put before the court, in order to enable those who 1649 have to decide to find the facts about where the truth lies; and those they have to decide and find just as much in criminal cases as in civil cases.
So much then for Parts II and III of the draft Bill which deal with the rules about hearsay. What about the other parts? Anyone who has been concerned with the administration of the criminal law must know that in the areas which deal with corroboration, with comment that can be made on this and that, there is more irrational mumbo-jumbo than even there was in the law on hearsay in civil cases, before we tried to bring a bit of rationality into it. What has been the complaint of those who have been criticising the proposals in the Bill about the right to silence? What do the two clauses say? They say that all proper inferences can be drawn from the accused's failure to give evidence. I do not think anyone who has any experience of criminal trials, or anyone who can possibly believe that a jury is a suitable tribunal for deciding innocence or guilt, would doubt for one moment that if an accused fails to go into the witness box when there is a prima facie case against him a jury draws the proper inference, which is all that this Bill says it may draw—that if there was not something that he was afraid to be cross-examined about he would have gone into the box. Certainly, my experience in trying cases was that the jury drew that inference in proper cases; also, that they drew the proper inference—though one was not allowed to comment on that—when the accused brought forward at the last moment a defence which, if he had been innocent, it would have been natural to expect him to give to the police. And, my Lords, add this further absurdity about the comment upon failure to go into the witness box. As the noble and learned Lord the Lord Chief Justice pointed out, the prosecution may not comment upon it, but the judge may, provided that he does it in moderate and sensible terms; that is to say, he indicates to the jury what would be a proper inference to draw.
I commend the greater part of this Bill, with a number of reservations, on the grounds that it brings some rationality, some common sense, into a part of the law in which, however proud we may 1650 be of it, we must recognise that a great deal is to-day quite irrational nonsense.
The jury knows it and, thank God!, a jury generally has enough common sense to ignore the mumbo-jumbo which I, as a judge, had to say to them at the early stages of a case so that they forgot about it when they went into the jury room. I have spoken longer than I intended but I would not desire this debate to end without someone saying in praise of the Criminal Law Revision Committee that, whether or not it increases convictions of guilty men, at least it brings a bit of rationality into a bit of law that bitterly needs it.
§ 8.17 p.m.
§ LORD HACKING
My Lords, when I first put my name down to speak in this debate, I thought I might be able to contribute to it as a practising member of the Bar. But as this debate has gone on till this late hour in the evening, and as point after point has been made, I increasingly wondered whether there would be anything left for me to say—a wonder that was somewhat increased when I heard the noble Earl, Lord Mansfield, reminisce about life at the Bar with Ginger and all that. But before I thought to tear up my notes and leave the Chamber, I decided that there was a little left and that I could, and should, give your Lordships the heads of concern which I believe members of my profession share with me about this Report and the draft Bill that goes with it, and then examine one of those concerns in detail, but as briefly as possible. But before I do that, perhaps I could make a few opening remarks.
I believe that nobody in my profession does not recognise, first, that the quantity and scale of sophisticated crime has much increased, although this problem is not peculiar to our own country and is almost a world-wide problem, whatever criminal procedures a country operates. This is making the point of the noble and learned Lord, Lord Salmon, in a different way. Secondly, the brunt of the increase in crime falls upon an overworked police force. Members of the Bar who always appear for the police in all criminal trials upon indictment are as aware as any of the work that the police undertake, and particularly the work that the detective branch of the police undertake. They 1651 are aware, too, of the abominable hours that an officer of the detective branch often has to work, going 24 hours and sometimes even 48 hours without sleep.
Thirdly, it is essential for the good order of any society that there is the maximum co-operation between the police and is an area of increasing concern—is the members of my profession—and it is an area of concern that was first covered, I think, by the Royal Commission in 1962, and is an area of increasing concern—is that the area of conflict, if there be an area of conflict (and I think we have to recognise that there is) between police and public will be increased if this draft Bill is made law.
Fourthly, there are defects in the present procedures—and perhaps I may mention the defects in the interrogatories, when the police first interview and question a suspect. First, as members of the Bar recognise, and have recognised for some time, the contents of a police officer's note is at best a précis, pulling out the highlights in the conversation as best the police officer can remember, Then—and, indeed, this is mentioned in the Report, and was mentioned to your Lordships this afternoon by the noble and learned Lord, Lord Gardiner, when he read extensive passages from paragraph 52 at pages 31 and 33—the other point that I am making in this context concerns the written statement and how in reality that statement is composed on a question and answer basis, although it appears and is read as a single statement of the accused, uninterrupted by the police officer who is taking it down. It is because of that fourth recognition by members of the Bar that both the Criminal Bar Association and Justice, while opposing the Committee's proposals concerning interrogatories, the caution and so forth, recommended new procedures concerning interrogatories.
My Lords, my concern over the Report can, I think, be brought under four heads. The first is that the basic premise of the report is wrong. There are not the large-scale acquittals obtained by sophisticated criminals turning criminal procedures to their advantage. If anything can be read from the quantity and type of acquittals (and I for one doubt it) it is that the unsophisticated, inadequate 1652 criminal often obtains an acquittal for various reasons, not the least of which is the sympathy of the jury—and none of us would wish that to end. On the other hand, it is my experience that the big-time criminals, when they are brought to court, to quote a Queen's Counsel at the Justice meeting on Saturday to which the noble and learned Lord, Lord Gardiner, referred, "go down like stones". It is interesting to note (although I choose this only as an example, and nothing more) that in a trial concerning the train robbers, I think about eight or nine years ago, over which Lord Justice Edmund Davies so ably presided, precisely that happened. It is interesting also to note that recently in the two trials concerning the Kray brothers, over one of which Lord Justice Lawton ably presided, once again, those accused went down like stones. Secondly, and ancillary to the basic premise that the Report is wrong, in any event that basic premise, as several of your Lordships have noted, is incapable of substantiation.
My second concern is that, even if the premise is right, the proposals as set out by the Report and in the draft Bill do not provide the remedy. Indeed, concerning the hearsay rules they positively invite manipulation by sophisticated criminals. Thirdly, whatever the cause and whatever the remedy for the increase in crime, there is no justification for abolishing such a fundamental right—and I use that term even late in this debate—as the right of silence, which, as the noble and learned Lord, Lord Salmon, so ably illustrated, goes far beyond the procedural change and runs contrary to the basic concept of a criminal trial; namely, that the prosecution should prove its case. My fourth concern, which again is one that I believe members of my profession share, is that the proposals in the Report as brought out in the draft Bill are bound to increase both the complexity and the length of criminal trials, resulting in real issues—for example, the prosecution's proving its case—being obscured before the jury consider them, and resulting, too, in injustice to both defence and prosecution.
It is upon this last point that I wish to dwell shortly. I do so particularly because the noble and learned Lord the Lord Chancellor reminded us in his 1653 speech at an early stage of this debate that many appeals against conviction are filed—and some of them succeed—simply out of the complexity of the law. In moving, I hope briefly, to this point, I would remind your Lordships that indeed the members of the Committee, in their Report, started off on that premise. I read from paragraph 25 at page 13:Simplicity is specially important for the law of evidence. It is important for the court, because a point of evidence frequently arises suddenly and without warning during a hearing and has to be disposed of without there being a proper opportunity to consult authorities.Alas!, my Lords, in proceeding forward with their draft Bill, and in proceeding forward with more detailed consideration in the Report, the members of the Committee did not follow through with a draft Bill which was simple in content and in operation.
I would criticise the draft Bill upon two points. The drafting of the Bill itself—and this is not a criticism of the Parliamentary draftsman—makes the reading of it amazingly complex: so complex that often without use of the Appendix (which, after all, will not go with the Queen's Printers' copy) some of the clauses are quite incomprehensible. Secondly, and more important in my submission to your Lordships, the operation of the draft Bill will produce not fewer complexities in a criminal trial but new complexities. I choose only three examples, and I do so because I wish to be brief at this stage. These three examples are really more simple examples of complexity than other examples I could choose. I choose, first (because it is right to start at the beginning of a draft Bill), Clause 1 of the draft Bill—the clause which starts all the argument about the right to silence. It is my submission that Clause 1 is admitting a new area of evidence and argument; and, in simple terms, the argument is what the suspect said or did not say in reference to any fact relied upon later in his defence.
I shall not weary your Lordships at this stage by reading Clause 1, which is all too familiar to your Lordships, but I can do no better than quote, if I may, and adopt, the types of problems and questions that will arise in argument upon that section, taken from the excellent memorandum prepared by the 1654 Criminal Bar Association. These, I suggest, my Lords, are the types of questions that will arise:What is the status of the questioner? does he fulfil the terms of Clause 1(2)? what facts were mentioned to the police or other official? … which of these facts are of sufficient importance for them to be held to be 'relied upon?' was it reasonable for the accused not to mention those facts found not to have been mentioned? did the facts relate to the offence (with which the accused is) actually charged? was the police officer trying to discover by whom the offence had been committed or was he making general inquiries from which he later decided that the offence had been committed? what inference could be drawn properly from any omission to mention facts? If the fact omitted is found by the jury to be true, or possibly so, but they are not sure, then what inferences are they entitled to draw? should the judge allow police prosecution witness to be called for questioning after the accused has given evidence setting up facts which the witness did not say had been mentioned?In thinking about the answers to these questions postulated by the Criminal Bar Association, I think one begins to get a picture of a new area, in my submission, of evidence and a new area of argument.
I turn now as a second example to the disposition clause, Clause 3. There are amazing complexities that can arise out of that, partly because as the noble and learned Lord, Lord Salmon, said, the area is an extension of the old common law rule of the similar fact. Also because by invoking Clause 25, a welter of documents must travel on the way from other criminal proceedings towards the trial if similar disposition evidence is being introduced. I make those general observations and move to Clause 3(4) of the draft Bill. This is the clause dealing with the situation where a man admits the conduct alleged against him as part of the prosecution case but denies that his conduct is capable of criminal guilt because he did not have the second constituent of mens rea.
When the Committee were drawing up their examples they chose the three that were concerned with a single accused. The first example is at page 48. It is of delightful simplicity. A man in a crowd leaving a football match has his pocket picked and identifies A, a total stranger, who was beside him as the thief. A has 90 convictions for pickpocketing. One can see the simplicity of applying that if one 1655 has a simple case; but members of the Bar and of the profession will know that single cases are becoming a diminishing event. Trials are now often multiple trials concerning 10, 12, 18 or 20 accused.
I am not even moving my example to a multiple trial. I move now to a trial concerning only two accused. I move to a case—it could be affray or it could be actual bodily harm—where two men stand before the court on a case of violence. Let us say that this took place in a public-house. One man says, "I was there. I had to use some violence, but I was defending myself and at no time did I attack anybody". The other accused says, "The identification is all wrong. I was not there. It is all a mistake". Looking at it in terms of culpability, if the prosecution case is right, your Lordships may take the view that the man who says he was not there (who was there, in fact, and was participating) is presenting a more outrageous defence than the man who said he was there but did not have the mens rea. Alas! on the application of Clause 3(4) the man who had the honesty (if that is the right word) to admit his presence there would be liable, if he had previous convictions, to have this Clause 3(4) pressed over his head and his criminal disposition put before the jury. The other man who had the more outrageous defence (in the terms I used just now) would not be vulnerable. The trial would go forward, if that clause were invoked against the man who was there, with the jury knowing that the man who was prepared to admit his presence had previous convictions, a disposition, while they would not know that about the man who said he was not there.
I will choose the simplest of examples to make my third point. In Clause 31(3), the hearsay section of the draft Bill, which is tied in with Clause 31(1), there is power vested in the court, when a witness has not been called but his statement has been put before the court under Clause 31(1), to disregard altogether that earlier statement that had been produced in evidence. In other words, a piece of evidence, possibly in the bundle of documents placed before the jury introduced to them by counsel for the prosecution as evidence, has to be withdrawn at a later stage in the trial if that witness does not give evidence and the jury have to be 1656 told that they must disregard the statement which at one time was introduced as evidence. If one transposes that situation to the justices' court, one appreciates the difficulties and complexities of the allegedly more simple rules of hearsay as set out in the draft Bill.
I have taken far longer than I should. I apologise to your Lordships. I simply make this point on complexity. This Bill is complex. It increases the complexity, and I am bound to say that if the proposals are implemented it will make a lawyers' field day. It may seem strange in some quarters for lawyers on both sides of the profession to ask your Lordships not to allow them to have this field day; but this I do.
§ 8.38 p.m.
§ LORD STOW HILL
My Lords, the noble Viscount, Lord Colville of Culross, and I are faced with a task of some difficulty in seeking to resume and possibly to highlight the various arguments adduced in this extremely valuable and interesting debate by noble and learned Lords who have brought to bear upon the considerations at issue the vast wealth of experience at their disposal. I approach the task with a great deal of trepidation, with my eyes firmly fixed on the time indicator opposite me. At the outset may I try to be accommodating and say what matters I agree with? The noble and learned Lord, Lord Diplock, is not in his place; but I agree with him at once that we in this House, members of both legal professions, and the public at large owe an enormous debt of gratitude to those very distinguished people who over a period of eight years gave so much time and thought to the preparation of the Report we are discussing. The noble and learned Viscount, Lord Dilhorne, did us all a great service in giving us the opportunity to consider the detailed content of that Report.
I hope I shall not be thought emotional or vituperative in any sense in what I say about the main proposals in this Report, if I say that as far as the major subjects which it encompasses are concerned they go flatly in conflict with my basic feelings about the administration of the criminal law according to our democratic system in this country, and I view them with—I hope I am not using an emotive term—distaste. The noble and 1657 learned Lord, Lord Morris of Borth-y-Gest, said, "After all, you have to be fair to both sides, both to the person accused and also to society against whom it is said that he has offended." I entirely agree. But, my Lords, I should have thought that most of us—I think I can say all who have spoken in the debate—are rather more sensitive with regard to the position of the accused and the absolute need to see that he does not suffer the risk of being unjustly convicted than we are with regard to those who may become the victims of misbehaviour, who may be the tragic victims of the most wicked misbehaviour.
We have, I suppose—I hope I may say this without arrogance—one of the greatest democracies in the world, and our system of law is fundamental to it. Though some people sometimes seem to take it on themselves to challenge the law these days, the rule of law is still supreme in this country, and it will be a sad day if it is ever really brought into disrepute. And central and focal to our system of law is our system of criminal law. I entirely agreed with what was said by the noble and learned Lord, the Lord Chancellor, that it is a system of which we can justly be proud. I believe that it works well. It would be presumptuous to say that any system is not susceptible of improvement and change; obviously our system of criminal law is. But it works well, and I should have thought it carried an enormous amount of confidence among the public. I should have thought also that if we are considering the question of how we should see to it not only that the innocent are acquitted but also that not too great a proportion of the guilty are acquitted, it is fundamental that juries should have confidence in the judiciary and in the police; that when members of a jury sit in a jury box and hear the arguments of counsel and the evidence of the police, and hear the judge's summing-up and his direction to them, they should feel perfectly safe in saying to themselves, "We can trust this system."
My Lords, it would be very sad indeed if we ever got to a situation in which, when one goes into a jury box and sees a police officer in the witness box opposite, one thinks, "I must be careful about him; he is probably going to' have me on'." If we do get to that situation we 1658 shall get far more acquittals than we get now. I believe that many countries throughout the world have such inadequate criminal systems for the very reason that by the way in which they conduct their affairs they have not managed to inspire that mutual confidence in the administration of the police, in the independence of the judiciary and in the fairness of the judicial system where accused persons are concerned.
Why do I say that, my Lords? I do so because I want to follow an argument put by the noble Lord, Lord Goodman, and the noble and learned Lord, Lord Reid. They pointed to the fact that it is essential that this confidence should be maintained. The noble Earl, Lord Mansfield, felt that there was some reason to think that that confidence was being impaired. I hope that it is not. The relevance of that point to the argument that I am venturing to submit to your Lordships is this. It goes to the question of the right of silence. I do not wish to use terminological epithets; I think we all know, broadly speaking, what we mean by "the right of silence".
The noble and learned Lord the Lord Chief Justice said, "After all, what is it?" It was the Act of 1898; it was the inhibition placed on prosecuting counsel under the terms of that Act and the limitations on the comments that a learned judge may make; and also it was the question of the treatment of the accused person when in the hands of the police. Speaking for myself, I think it is the latter which is infinitely more important than the former. I think it fundamental to our system that people in this country should have confidence in the way in which an accused person will fare and be treated when he is in the hands of the police. For that reason I think it very important that before we make any change in the existing system we should make certain that the change we make will not give rise to suspicions which do not now exist.
My Lords, I trust the police. I believe that this country trusts the police. I believe that we have a very great police force which is the envy of the world. What is proposed? If we look at the first clause of the draft Bill we find that it is proposed that there should be comment, legitimate in the case of a person exercising what we at present call his right of silence. It is proposed that in 1659 place of the existing Judges' Rules the accused person should be given, when the time comes for charging him, a new form of warning. That warning appears on page 26 of the Committee's Report, and is in these terms—and I think that I shall not be taking time unnecessarily if I read it:You have been charged with [informed that you may be prosecuted for]—If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to tout, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done.That form of warning which is to take the place of the existing two warnings that are given under the Judges' Rules has to be read together with Clause 1 of the Bill, which permits silence to be commented upon as pointing to a reason for inferring guilt.
My Lords, I have been in a police station and watched people being charged I have noticed their demeanour. One knows, pace, if I may say so, what the noble Earl, Lord Mansfield, said with regard to the rising standard of education of the ordinary criminal, that they are still not, by a long shot, Fellows of All Souls. They are people who perhaps are a little more articulate than they used to be in the old days. I agree that they probably shave—or perhaps some deliberately do not shave. Their foreheads are not all flat—I think that was the expression used by the noble Earl. They are men of moderate intelligence, mostly, who have gone wrong, made a mess of their life and are very often inarticulate.
I have met dozens of such men in prisons, talked to them and tried to get to know them. They are people who find themselves in the hands of the police with nobody to help them. Possibly they are over-awed; possibly truculent; certainly in nine cases out of ten they are not very good at expressing themselves. I would defy any Member of your Lordships' House, who was suddenly confronted with the task of stating clearly, succinctly and accurately an incident or a series of incidents in which he had recently been involved, to do so.
1660 These people, violent and so on, or truculent as I have said, have been called upon to make a statement of that sort which is going to be taken down, and later it may be referred to. How are they going to fare? I feel, my Lords, that the result would be quite catastrophic. Not only would they not be advantaged, but also what I suspect would happen, if a change of this very fundamental character were made, would be that over and over again there would be complaints about the police. There are already enough complaints about the police. Whenever an unfortunate police officer is complained about it is a source of anxiety to him and to his family. It lowers his morale. It must be extremely discouraging to him in the discharge of his duty. If one is going to make a change in the existing procedure which will mean that time after time when a police officer makes an arrest, puts questions and takes an individual to the station where he is charged, there is going thereafter at the court hearing to be a complaint that the police officer put pressure on the man and tried to put words into his mouth, and all the rest of it—and complaints are easy enough to manufacture—it will have a very bad effect, as I think, on the morale of the police, on the confidence of juries and on the confidence of the public in the police.
You will not get more convictions, but fewer, because juries will let people off if they think they have been subjected to some sort of pressure. I suspect that that is what would happen, and I think it would be a bad and dangerous change for that reason. With the existing cautions each side knows where it is. It may be exasperating for the police officer concerned, but at least he knows where he is, and the man on the other side of the table knows where he is. Complaints there are now, my Lords, but far fewer in my belief than there would be if one had this really drastic change proposed in the treatment of people who are suspect in the hands of the police. I have worked closely with police officers. They are subject to the greatest temptations and provocation. I think that we all owe them a great debt of gratitude in regard to the restraint which they exercise and the high standard of behaviour which they always maintain. 1661 I would not wish to put them under any extra and, I believe, unnecessary strain.
Then it is said that the existing system constitutes an obstacle in the way of obtaining a conviction against—I forget the phrase the noble Earl, Lord Mansfield, did not like—hardened, sophisticated (or whatever it was) criminals. I do not know who they are. They are sometimes described as faceless commuters who run up and down in an underground railway, live in a nice house in the suburbs, and really mastermind a protection racket or some sort of gang. The idea that you are going to get a conviction against a man of that sort if you abolish the Judges' Rules and give this warning to him, whereas you cannot get a conviction under the Judges' Rules, is, I think, completely unrealistic. I do not think you will get any more convictions against the hard type of criminal. All you will do is to give rise to complaint on the part of the weak criminal who says he has been misused. That is my comment on the first but, as I think, basic feature of these Reports.
My Lords, I go to Clause 3. The noble Lord, Lord Hacking, has already referred to the case which the Committee cites on page 48: a man in a crowd leaving a football match has his pocket picked; he identifies A, who was beside him at the time and is a total stranger to him, as the thief. A has 90 convictions for pick-pocketing. I have supposed that under the existing law you certainly could not give those 90 convictions or even the conduct leading up to them in evidence unless you could show that the conduct on which the convictions were based always had something exactly similar in type and pattern: if he always went to a football match and always sat down next to somebody on his right-hand side and always tried picking his right-hand pocket, well, you might give that in evidence. I thought that what the Committee were trying to do in Clause 3(2) was to preserve that rule. Very few counsel, I believe, would ever use it. I once had the responsibility of inviting counsel to conduct prosecutions on my behalf. If I had ever thought that any counsel whom I invited had used his discretion unwisely or oppressively in that field he would never again have been invited to act for me.
1662 My Lords, I think it right to read a passage from page 43 of the Bar Council Report with regard to Section 27(3) of the Theft Act 1968 which we passed, and which replaced Section 43 of the Larceny Act 1916. That was a section which specifically enabled evidence of previous criminal behaviour to be given in the case of receiving stolen property. This is what the Bar Council say:Two of the authors of this part of the memorandum, each with 20 years' continuous practice at the Criminal Bar, cannot recall one single case of a prosecution attempting to invoke the section. In our experience it is regarded with distaste by Bar and Bench alike and certainly is no longer used in the metropolitan area.I do not know what is the experience of other noble and learned Lords, but I should have thought it was the case—and I have some reason for saying this because I have made inquiries—that if and in so far as there is at the moment a right in a case of that sort to give evidence of previous criminal conduct, judges dislike it, the Bar dislikes it, and that right is practically never used.
But those who prepared this Report want to go further, and in Clause 3(4) want to say: suppose a case of that sort, the pickpocket sitting on a seat; the man next to him gets up and leaves his wallet on the seat; the pickpocket picks it up and says that he was going to hand it to the nearest police officer, but he was arrested before he met a police officer. The effect, as I read it, of Clause 3(4) is that it shall be legitimate then for the prosecution to give evidence of other conduct of the accused tending to show in him a disposition to commit the kind of offence with which he is charged. I feel that that is really the most dangerous proposal, and one which I very much regret. What does it mean? What comes within the scope of the words "the kind of offence with which he is charged"? He will be charged, I suppose, with what we used to call larceny by finding. Is there any other kind of theft similar to that? I should have thought so. Could you give evidence that he tried to break into a house in order to possess himself of other people's property? I should have thought that that might well come within the scope of those words. If he robbed a bank in order to steal money 1663 you might argue that that was an offence with similar characteristics. I really do not know what the ambit of that subsection is, and I view it with the utmost distaste and fear. I know I am with every other noble Lord who has spoken in this debate in disliking, and in the case of many noble Lords cordially disliking, that particular proposal.
In that connection, my Lords, perhaps it is appropriate for me—and I do it with great pleasure—to refer to the maiden speech of the noble and learned Lord, Lord Salmon. He said that he was "appalled" by that proposal. I should like to borrow that word and to add to it in my allusion to his speech, which I think all noble Lords will agree was one of the most impressive speeches that has been delivered in this House for many years. That is my second point on Clause 3.
I come to the third point on Clause 31, which also has been commented on by most noble Lords who have spoken. It is the clause that deals with hearsay evidence. Here I should like to say to my noble and learned friend Lord Diplock that I cordially disagree with him when he says that the circumstances which led to the Evidence Act 1968 in civil cases apply equally in criminal cases. I do not think they do. There is a good deal of difference in the matter of proof. A civil case is proved on the balance of probability; a criminal charge cannot be brought home unless it is proved beyond the existence of any reasonable doubt. That is a major difference, and I should have thought that it was absolutely fundamental (I apologise for using adjectives, but I think this is an appropriate one) to our criminal law. If a witness says something about an accused person the jury expect to be able to see that witness in front of them, to be able to assess what sort of person he is and to hear him cross-examined, in order to form a judgment. Without that there really is no criminal trial in the sense in which we have for centuries understood it in this country.
The Bar Association, when dealing with that, give what I should have thought was a very good example on page 60. They say:A prosecution witness in an assault case states that immediately after the assault took place a man whose name he knows but who 1664 has since disappeared told him that it was the defendant who committed the assault.That would be evidence if the proposal is accepted and Clause 31 is passed into law. I should have thought that that was fundamentally distasteful, and that this sort of evidence in a criminal trial (a civil trial is a different matter) should certainly not be admissible. Take the example of an ordinary lodging-house where people "gang up" and say that one of the lodgers they do not like has been stealing things from them. The police take a great many statements from the people in the lodging-house, who are a migrant population and disappear—one cannot find who they are—but they all say that the unpopular person has stolen from them. Technically, under Clause 31 the statements taken by that police officer would be evidence upon which a prosecution, if I understand it correctly, could be brought against that unpopular person. To me, if I may borrow the phrase used by the noble and learned Lord, Lord Salmon, that is quite abhorrent.
Those three aspects of the matter go to the root of the proposals which are contained in the Report. I do not wish in any sense to denigrate the massive achievements of the Committee in composing its thoughts on these various aspects on the law of criminal evidence. I have not had time to examine a large number of the other proposals—all of them valuable in themselves, but I think in many cases susceptible of criticism—and I would hesitate to take up your Lordships' time by going further. Before sitting down, I should like to sum up my objections by saying that in the course of the debate it seems to me that noble Lords have fastened almost entirely on the same points. They have been, if not entirely unanimous, very nearly unanimous in their suspicion and dislike of the Committee's proposals on these three points. I think this has been an extremely valuable debate and the noble and learned Lord Chancellor has indicated how glad he is to have the views of this House. Those views have certainly been fully expressed and expressed without qualification. I should like to add my modest voice in agreement with what most of your Lordships have said on what seem to me to be the three major points in the debate.
§ 9.2 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, we all owe a great debt of gratitude to the noble and learned Viscount, Lord Dilhorne. To get up a debate on this subject, as I know to my cost, requires a great deal of homework; and that the noble and learned Viscount should have done it in addition to his other duties is something for which we all owe him our tribute and our thanks.
In view of some of the things said by the noble Lord, Lord Stow Hill, it is worth while mentioning that we have the Report and the draft Bill before us. But of course we do not have a real Bill, and when one is looking at the drafting, although comments are very useful, one must not treat this draft Bill as positive legislation which is being put forward. I agree with the noble Lord, Lord Stow Hill, that it is very difficult to make a speech on this occasion. It is more or less impossible for me, because if I say anything that looks as though it indicates what the Government's views are I shall be failing to fulfil the pledge that we will listen carefully to the views of both Houses before making up our minds—and I shall do something even worse than that if I say something which may be considered before the Law Society and the Magistrates' Association report, in which case the noble and learned Lord, Lord Gardiner, would never speak to me again. If I try to say nothing, your Lordships will be, quite rightly, bored; and in any event I cannot possibly hope to cover all the topics that have been dealt with in the course of the debate. However, I think there are a few things that I can legitimately say.
It must be high time that the Criminal Law Revision Committee were thanked for their work on this Report, and it is very gratifying that so many noble Lords have done so to-day. I just wonder where several speakers got the context of this Report from. The noble Lord, Lord Goodman, put the context as one of attempting to increase control over crime, and the noble and learned Lord, Lord Salmon (whose maiden speech I admired as much as anybody else, I hope), also seemed to suggest that this was the Committee's underlying motive or philosophy—to have some impact on crime. I agree with all noble Lords who have spoken that the 1666 best way to have an impact on crime is to have a good police force and good detection, but I cannot find one single word in the Report that indicates that this was the motive behind the work they were carrying out. If one reads paragraphs 24 and 25, one of which was referred to by the noble Lord, Lord Hacking—and indeed the noble and learned Lord, Lord Morris of Borth-y-Gest, pointed it out as well—one gets the real point of the operation, which was to simplify and clear away some of the dreadful complexities in this area of the law. I therefore hope we shall not be involved too much with matters which I think are totally extraneous; in other words, the view that this is an attempt to get more convictions and to increase control over serious crime in this country.
The Committee are not without their proven merits already. One of the Interim Reports that they put up on this very subject concerned the law in three sections of the Criminal Justice Act 1967. Since that date, so far as I know, it has not been working at all badly. I must also rebut any suggestion that because they were mostly rather senior members of the legal profession they were not qualified to express weighty and important words on this subject. After all, they did include a practising barrister and several judges who had been practising barristers, and—I think it was the noble and learned Lord, Lord Gardiner, who raised this point—if one can only comment on this subject while one is a practising barrister we should have to rely totally on my noble friend Lord Mansfield and the noble Lord, Lord Hacking, and discard the views of all other noble and learned Lords who have spoken in the debate to-day. I do not think that that is very desirable, because I am quite sure that although it may have been a little while ago since noble and learned Lords were practising at the Bar they have not discarded all recollection of what went on when they did. I also recall the comments—passages of arms, they were—about the merits of this very Committee, which the noble and learned Viscount, Lord Dilhorne, and I exchanged with the noble and learned Lord, Lord Gardiner, in the debate on the Theft Bill; so I think we must pay some serious attention to the members of the Committee and treat them with the merit they deserve.
1667 On Clause 1—this deals with the celebrated right of silence, and the critics really have buzzed like hornets (or possibly I should adopt Lord Goodman's "galloping bumblebees", which was a fascinating concept) on it—there have been two different approaches. The noble Lord, Lord Foot, said that he did not want any lawyers' wrangle here, and he considered it to be (as many other people who have spoken and written about this considered it to be) a very large question about the relationship between the person and the State, and a tremendous matter of principle. I respect their views on this.
But then I listened to the noble and learned Lord, Lord Widgery, who told us about the origin of the matter and mentioned specific examples. Let us also see—because nobody has really mentioned this, though my noble and learned friend on the Woolsack touched on it—what a dreadful thing it is that turns out to be suggested on this particular point by the Committee. This is the present law on the right to silence, as stated by the Court of Appeal (Criminal Division):It is wrong for a judge to say to the jury, 'Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt'.The Court of Appeal statement went on:It is quite a different matter to say, 'The accused, as he was entitled to, has not advanced at an earlier stage the explanation that he has offered to you to-day. You, the jury, may take that into account when assessing the weight you think it right to attribute to that explanation'.That is the difference between the case of Ryan and the case of Sullivan, one where the conviction was upheld, and the other where it was quashed.
VISCOUNT COLVILLE OF CULROSS
My Lords, my noble and learned friend is quite right; but it would have been had it not been for the application of the proviso.
I want the House to consider—and I think we have almost a jury here—whether this is the "ancient safeguard" mentioned by the noble Lord, Lord Foot. The distinction is keenly supported as being one of the fundamental underpinning pillars of the freedom of the individual. 1668 Let us take the case where the defence has turned entirely on a new explanation of facts which had never previously been revealed. I tell the House, as the jury, that you are allowed to say to yourselves "It is really very odd that he never produced this explanation before. We do not think we can rely on this new explanation." That is a matter of weight; that is legitimate. I suppose that a jury might say that if they did not rely on that explanation, and there was no other defence, they had little option other than to convict. But they are allowed to put it that way. What they cannot say is: "It is really very odd that he never produced this explanation before; we infer from the earlier silence that this explanation is not true and that he is guilty". They cannot say that because that is an inference of guilt. But they can say what I said just now, and this is the difference between the two propositions: the existing law and the one in the Criminal Law Revision Committee's Report. It may be vital—I do not wish to say whether it is or not—but let us get clear exactly what we are talking about.
I agree with the noble and learned Lord, Lord Reid, that we want to leave the generalities aside and look at some of the particularities of the case. One has to remember also that despite the one prohibition that a jury must not infer guilt from silence, they can, as I understand it, infer guilt from the hang-dog look and from the other things that my noble and learned friend mentioned. They can also infer guilt from the fact that the man ran away; and from the fact that he told a pack of palpable lies when he was questioned by the police. They may not infer guilt from silence; but even then they can take that failure to explain into account on the matter of the weight of the evidence.
There is one other point on which the House ought to be a little careful—because I am not certain that either the noble Lord, Lord Foot. or the noble Lord, Lord Goodman, when they were considering the practical side of this, had taken it into account; that is, that the Committee's proposal is not unqualified. The inference from silence is to be drawn only if the man could reasonably have been expected to mention it when questioned before. The court and the jury may draw only such inferences, from 1669 silence as may appear proper. If you take seriously those two words that I have emphasised, it cuts out a great deal of the absurdities to which it is suggested all this is going to lead. I am sure that those qualifications apply also to the use of silence as corroboration. If your Lordships look at paragraphs 40 to 42, on page 211 of the Report, I think that will be clear. I am not saying whether this is right or wrong, but I suggest that the authors of this proposition are not the Red revolutionaries the noble Lord, Lord Foot, suggested they were.
It brings me on to the question of the Judges' Rules and tape recorders. This is a particularly intricate point, but I am absolutely at one with the noble and learned Lord, Lord Reid, and others, who said that what we must get is a fair interrogation. Naturally, if Clause 1 were to be passed into law the Judges' Rules would have to be altered, though whether the caution would take the form necessarily suggested and read out by the noble and learned Lord, Lord Stow Hill, I do not know. There is also the question of the status of the Judges' Rules which the noble and learned Lord, the Lord Chief Justice, and I think also the noble and learned Lord, Lord Gardiner, raised—the question whether they should be statutory, whether they should be made by the judges, whether they should be made by the Home Office. And if they are to be a Statutory Instrument, according to the Labour lawyers there is a good deal of difference between whether you have an Affirmative or a Negative Resolution on this matter.
We must take account, plainly—and the courts do now—of any serious breaches or bending of the edges of these Rules. The noble and learned Lord, Lord Gardiner, mentioned the access to solicitors point as being something that particularly needs looking at. Within the control of the law, within the context of whatever the law is at the time, I can tell the House that no Government would propose to reduce the safeguards or seek to reduce their effectiveness in looking after a person under interrogation. But how do we do it? The noble Lord, Lord Ritchie-Calder, said that the tape recording idea was so easy to falsify that it was not worth considering; but, on the other hand, the noble and learned Lords, Lord Gardiner, Lord Diplock, Lord 1670 Dilhorne and Lord Widgery, all agreed that something like this would be a prerequisite before we had anything in the way of Clause 1 at all. This, of course, is a matter where we must take into account—and this was very clear in several speeches—the further dimension, which really is a further dimension, of the legitimate and essential activities of the police in detecting and investigating crime. This goes far beyond the rules of evidence and impinges on the whole of their efficiency. They must be fair, but I cannot believe that the House would ever wish them to be less than fully effective in bringing the criminals to court.
The noble and learned Lord, Lord Morris of Borth-y-Gest, emphasised this point, and my noble friend Lord Mansfield told us of some of the practical side of it. I will study, and so shall we all, the suggestions made by the noble and learned Lords, Lord Reid and Lord Morris of Borth-y-Gest, about this matter. But what I think it leads to is what we should do. The points we have been talking about in this context carry, at any rate in many people's minds, the status of a major constitutional issue. We also have the practical problems of the skill of the police and the way in which they carry out their work. The idea therefore that one should send this issue, as Lord Reid suggested, to the Law Commission seems to me to be, with respect to him, perhaps a little wide of the mark. I do not think that this was agreed to on other sides of the debate. What I think we should do is to look at this matter in Government and see whether we cannot come up with a practical answer to the fear expressed about the profound dangers to liberty, and so on, together with its technical side and the police involvement. I believe that this might be better, although of course it would be for my noble and learned friend the Lord Chancellor to say whether it went to the Law Commission. It might be better for the Government themselves to try to find a solution, now that we have the legal advice not only from the Committee but from many other people as well.
The subject of confessions has been mentioned. I am sure we must always take great care that there is no improper pressure put on an accused to obtain a confession from him. What puzzles me a little is that set out in the Committee's 1671 Report, in paragraphs 57 and 58, are cases such as Northam and Zaveckas and Cleary. Then the case of Smith was mentioned earlier in regard to the court-martial. Here there are really grave anomalies, and one finds that the Bar Council, in their Yellow Book, say that these cases involve threats or inducements which may be harmless in themselves and may lead to confessions which are true and which cannot be said to be obtained by oppression. Then all they do is to throw up their hands in despair and say that there is no reform of the law that they can see which will bring about a cure for what is apparently an accepted ill.
To turn to the question of the previous misconduct of the accused, I think the best thing I can do is to say that we shall study with care what the noble and learned Lords, Lord Salmon and Lord Morris of Borth-y-Gest, thought about this issue; in other words, that we should stay where we are with the rule in, I think, Makins case, under the common law, and not try to restate it as a matter of Statute. But there is of course—and here the debate has been somewhat one-sided—another aspect to misconduct. There is the proposal, I think in Clause 6(4), that the defence should no longer be put in peril of having all the accused's previous convictions raised against him if he makes some comparatively minor suggestion which is said under the present law to go to the credit of the prosecution witness. Here in the Committee's Report is a proposition which I should have thought would be welcomed by everybody because it takes away from the defence a grave dilemma, and yet on the subject of previous misconduct nobody has said a word about this matter at all.
Hearsay is a subject upon which, if one knew it well enough, one could speak possibly for ever; but I do not propose to do so. Again, I think we should consider the speeches that have been made and particularly the individual points raised. The noble and learned Lord, Lord Diplock, said that the proposals in the Committee's Report were very like those in the Civil Evidence Acts, about which he knows so much. As I read the Bar Council's yellow book they do not agree about that at all. I feel sure therefore that there is room for a dialogue here, to see 1672 whether we can come to some conclusion. But I should have thought, too, that there must be good in this part of the Bill as well as bad, and it has been only the bad that has been picked on this evening.
The corroboration aspect was the area of mumbo-jumbo mentioned by the noble and learned Lord, Lord Diplock. Again, that derives from a mixture of common law and Statute, which the noble and learned Lord, Lord Morris of Borth-y-Gest, dealt with. He is quite right in saying, of course, that this matter has been overtaken to some extent by the decision in R. v. Kilbourne in this House, whereby two children were allowed to corroborate each other. But I noted that he, and I think other noble Lords—
§ VISCOUNT DILHORNE
My Lords, I think that was the case of R. v Hester; it was the case with the two children.
VISCOUNT COLVILLE OF CULROSS
My Lords, there were several groups of children in the case of R. v Kilbourne.
I noted that there was welcome for Clause 21 of the draft Bill, which suggests that where the main evidence for the prosecution is that of identification there should be corroboration. The other matter that I noted in the speech made by the noble Lord, Lord Morris of Borth-y-Gest, was the question whether we really need to legislate for the judge to draw the attention of the jury to the need for special caution in these cases. There is a good deal of comment in the Bar Council's book on this and on the discretion of the judge in this particular activity, which I think runs a little contrary to what the noble and learned Lord was saying, because the Bar Council seemed to be not too happy about the discretion being left to the judge.
I have not time to say much about statistics, but I think I can answer a point raised by the noble and learned Lord, Lord Gardiner. The trouble about his friend in America is that I am afraid he has got the thing exactly back to front. The way in which the criminal statistics are dealt with here is, for better or worse, by the method of recording only that offence which got to the furthest stage in the criminal proceedings. Thus if there are several charges and the accused person is acquitted on all of them except one, he is only recorded under the conviction, because in the case 1673 of the acquittals the matter stopped there. However, the case of a conviction, and then a sentence, constituted a further stage. This may be a method of tabulation which does not commend itself, but at least it means that a person is recorded as having only one single appearance at court, even though a number of charges are levelled against him at the same time.
§ LORD RITCHIE-CALDER
My Lords, may I ask the noble Viscount to explain that? Does it not finish up as one conviction for acquittal?
VISCOUNT COLVILLE OF CULROSS
No, my Lords; it finishes up as one conviction because only the offence which gets the furthest is recorded at all; so there is only one entry in that respect and it is the conviction.
I was interested in the reasons given by my noble friend Lord Mansfield why acquittals are getting more frequent. I have been glad to find (this point has not been raised to-day, although it has been discussed outside and in the House generally) that there has not been any attempt to balance the changes which might be said to benefit the prosecution against the changes which might be said to benefit the defence. I do not think it is right to look at this matter in terms of a bargain or balance; each and every one of the changes should be made on its merits.
I have not time to go through all the sections of the draft Bill and Report that have not been discussed in this debate, but I have noted the comment by the noble Lord, Lord Goodman, that at least 19 clauses have not been discussed. I feel that if there had been something to criticise, one or other noble Lord would have mentioned it. I am therefore encouraged to think that we may have material here which is not subject to criticism and which, if noble Lords had had more time, they would have welcomed. We therefore have something to build on out of the Report.
My Lords, the intricacies of this subject are really beyond a winding-up speech because of the pure enormity of the material, but I can tell the House that all contributions made in the debate have been gratefully received and will be studied most carefully. I know that this 1674 is what the noble Viscount, Lord Dilhorne, wanted to know. They will be studied in detail and I have myself begun a table containing the points that noble Lords have made. I will yield neither to the Bar Council nor to anyone else the monopoly of considering not merely the rules of evidence, as they put it, but the whole ethic of the system of criminal law. Her Majesty's Government are just as interested in this and, I believe, just as well equipped to deal with it as those who have commented on this matter from outside.
My noble and learned friend who sits on the Woolsack examined the progress and history of the rules of evidence and procedure and how they came about. We welcome the Report we are discussing not as definitive, any more than we would say that the objections to it are conclusive; we welcome it, as my right honourable friend the Member for Barnet said when he was Home Secretary, as a framework for early and necessary reform. We are not committed to acceptance of each and every item in the Report: some may be rejected. Nor do we disregard points which have been raised, either in this debate or outside, merely because they are not in the Criminal Law Revision Committee's Report; I know that the Labour lawyers, for example, have some which they have drawn to their attention and we are grateful for their doing so. We cannot, however, deny that the aim should be to get as near to the truth as possible in the criminal courts and to present to juries all such matters as will enable them to convict the guilty and acquit the innocent—all such matters as can properly and reasonably be put before them.
The noble and learned Lord, Lord Diplock, said that this area of the law was in need of cleaning up. I am sure the House will agree that that is right. I certainly do. What seems to me to be quite unacceptable is that important matters of this kind should be dealt with purely by chance, the opportunity occurring when the matter comes before the courts, as, for example, in Hester and in Kilbourne. This depends on the conduct and decisions of counsel in some individual case—the chance of a mistake in the summing-up, the pursuit of the appeal in that event and the arrival of that appeal in a court senior enough to make 1675 a clean sweep of the law if that is necessary. And there are probably further steps than that.
Those are four chancy methods of picking away into the defects of the law on criminal evidence. Unless we do something else, that is all we are going to get. It may be very fine, if done piecemeal and bit by bit, and there may be improvements; but I believe that we have to be bolder than that. I agree with the noble and learned Lord, Lord Widgery, that we should use this Report as a springboard. I believe that he and the noble and learned Viscount who moved this Motion have shown us that it is not all controversial. We must make an effort, after we have heard the further promised reports and after the debate has taken place in another place, and must come forward with some further positive proposals. I am sure they will not be uncontroversial, but we must take this on and produce something which we, at any rate, think makes sense; and in the process of trying to do that I can assure the House that this debate has been an enormous help to us in seeking to achieve our aim.
§ 9.32 p.m.
§ VISCOUNT DILHORNE
My Lords, the noble and learned Lord, Lord Stow Hill, and my noble friend Lord Colville of Culross began their speeches by expressing a debt of gratitude to me for tabling this Motion which we have been discussing for so many hours. I do not think that there is any debt of gratitude owed to me. For my part I should like to express a debt of gratitude to all those noble Lords—and in my time in this House I do not think I can ever remember so many legal Lords taking part in any debate—for the contributions they have made. Not only have they been most interesting but I believe that they will be most valuable to Her Majesty's Government.
For myself it has been a most enjoyable occasion. I rather feared what might happen to me at the hands of my two successors in office, but I was delighted to find that on this occasion the noble and learned Lord, Lord Gardiner, and I were in substantial agreement upon so many things. My problem in moving this Motion was to try to cover 1676 the whole of the ground of what was contained in the Report in as short a speech as possible, and I carefully refrained from stepping a yard outside it. The noble and learned Lord, Lord Gardiner, spent some time—and I admired his ability to get it into a speech—discussing not only what was in the Report but also other things which he thought ought to have been in the Report. I make no criticism of that. I could not find a way to do it myself.
At this hour of the night I am not going to comment on the various speeches that have been made, except to say that we heard a very memorable maiden speech from my noble and learned friend Lord Salmon: he spoke with a directness and clarity which commanded attention throughout the whole of the House. Nor am I going to deal with and comment on the various points that have been made, except to say that I was surprised by the general unanimity of opinion and the agreement in criticism on the various matters. As to the conclusion to be drawn from the speeches with regard to the silence of an accused during interrogation by the police, the impression I got from those speeches was that those who spoke would be prepared to have inferences drawn from silence of the accused during an interrogation if, and only if, there was an accurate record of that interrogation in such a form that there would be no risk of an inference being wrongly drawn. So, my Lords, progress can be made on that perhaps if the Home Office and others can devise a system for accurate recording of the process of interrogation. I do not mean by that that all the interrogation has to be recorded. The noble Earl, Lord Mansfield, talked about the interrogation beginning straight away. I see nothing to stop that. But if you are going to ask anyone to draw an inference from silence, in my belief that inference should not be open to be drawn unless it can be seen from a recording that it is clearly properly drawn. That is all I wish to say about that subject.
I think that the speeches have been very interesting indeed. With regard to hearsay, I warmly agree with the noble and learned Lord, Lord Stow Hill, that you cannot say that the same considerations apply in criminal trials as apply in civil trials. It is all very well for my 1677 noble and learned friend Lord Diplock to say that we must avoid emotive words and then to talk more than once of "mumbo-jumbo". So far as I am concerned, I draw a very big distinction between evidence in civil cases and evidence in criminal cases, where there is a different burden of proof. I know that my noble and learned friend has a great responsibility, a paternal responsibility, for the Civil Evidence Act, and I dare say that that may influence him into thinking that it should be extended to the criminal law. But I do not think it should.
I have one fear, and that is that those members of the Criminal Law Revision Committee who worked for so long on producing this Report may be disappointed by its reception in your Lordships' House. I hope they will not be. It is only natural that most of the noble Lords who have spoken should draw attention to the things they do not like, and that they should not spend time commenting upon those parts of the Report of the Committee which they find acceptable. The Committee has drawn 1678 attention to many problems. I agree with the noble and learned Lord the Lord Chancellor that the time has come when we should all look, as the members of the Committee have looked, at the situation with regard to the administration of criminal justice. I think we should be grateful to them for that. As the noble and learned Lord, Lord Widgery, said, what they have said does provide a foundation on which we can build.
My Lords, may I conclude by once again expressing my thanks to your Lordships for the way in which you have contributed to this debate, and my regret that I do not know, even now, from what the noble Viscount, Lord Colville, has said whether or not my Motion is acceptable to Her Majesty's Government. But on the assumption that it is not, I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.
§ House adjourned at twenty-three minutes before ten o'clock.