§ 7.32 p.m.
§ LORD HAILSHAM OF SAINT MARYLEBONE rose to ask Her Majesty's Government: Whether they will make a Statement on the action they propose to take as the result of the successful appeal against conviction of Mr. Luke Clement Dougherty. The noble Lord said: My Lords, I rise to ask the Question which stands in my name on the Order Paper relating to the case of Mr. Dougherty. I do so in no critical spirit because, of course, none of the events to which it relates happened during the tenure of office of the present Administration. Though the case in question raises, as I shall seek to show, some questions of principle which I think call for some statement from Her Majesty's Government, they did in fact take place without any action either of this Government or of the Government of which I was a Member. I ventured to put down an Unstarred Question because I felt that a little further probing than one could do at the beginning of your Lordships' proceedings was necessary.
§ My Lords, the simple fact which gives rise to the question I have raised, and which the Lord Chief Justice described as, disturbing", is that Mr. Dougherty spent nine months in gaol for a crime which he did not commit. It sometimes happens, and perhaps not infrequently, that a guilty man gets off on appeal owing to some technicality, a loophole in the law or some misdirection by the trial judge; or that he gets off on appeal originally because there is some doubt as to whether or not he is guilty. But this is not one of these cases. At least, I hope that the noble and learned Lord on the Woolsack, who I understand is likely to reply, will confirm what I say, that this is not one of these cases. Mr. Dougherty was innocent, and his inno- 692 cence has been established, I believe, beyond doubt.
§ The crime of which Mr. Dougherty was accused was shoplifting. It sometimes happens that persons accused of shoplifting bring the accusation on themselves by foolish conduct or by foolish words before or during the event which are the subject matter of the charge. This again was not one of those cases, as I understand it. Mr. Dougherty was not present at all at the scene and time of the alleged offence. I understand that the offence was at Durham; he was in fact enjoying an innocent outing at Whitley Bay with a coach-load of other people. He was therefore not in any way responsible for bringing the prosecution on himself.
§ Mr. Dougherty's defence was therefore an alibi. It is fair to say that all alibis are suspect. They are, I suppose, more frequently the subject of concerted perjury than any other defence. Some people who put them forward justly incurred suspicion by withholding them until the last possible moment. Indeed, as the noble and learned Lord knows, Parliament thought it necessary to legislate against the production of an alibi at the last moment, popularly known in the profession as the "sprung alibi". But again this was not, as I understand it, one of those cases. Mr. Dougherty put forward his alibi at the earliest possible moment and said exactly what he had been doing. I must emphasise, my Lords, that so far as I can see—and again I stand subject to correction by the noble and learned Lord—it was open to the prosecution to check that alibi before taking the matter to trial. If they had done so, there were a whole coachload of people who could have confirmed it—or, at any rate, most of them could have confirmed it.
§ The first question I should like to put to the noble and learned Lord is why the prosecution did not check that alibi. What is the good of Parliament legislating that "sprung alibis" are not to be produced if, in fact, when the prosecution is told what the defence is, and the defence is an alibi and that the alibi is such-and-such, the prosecution do not bother to check it? Perhaps the noble and learned Lord will tell me that. I am bound to point out (I do not know if the noble and learned Lord will agree) that if in England and in Wales we had a prosecution system of 693 professional prosecutors, like the sheriff, substitute in Scotland, or the district attorney in the United States, it is possible that the alibi would have been checked by a professional prosecutor. I should like to know whether the Government have any comment on the suggestions which have been made from time to time that we should look again at our system of prosecution in this country.
§ Instead of checking the alibi, as I personally would have thought they ought to have done, the prosecution asked the store detectives, who had made the complaint, to identify the alleged criminal from the criminal record photos. Mr. Dougherty, as it happened, had a record and so his photo was there. It was there, I should suspect (although again I put this interrogatively), in black and white. Unfortunately, the store detectives identified this photograph as that of the offender. I should like to know whether it has ever been considered whether C.R.O. photographs should be in colour. I understand that the real criminal, if there was one, had ginger hair and that Mr. Dougherty has black hair, or vice-versa. So if there had been a coloured photograph of him, it would certainly, I should have thought, made it more easy to identify correctly than was possible with a black and white photograph.
§ The prosecution then arranged, at the request, I understand, of Mr. Dougherty, for an identity parade. Unfortunately, for reasons which I understand were perfectly adequate, Mr. Dougherty was not able to attend the appointment. Instead of arranging another appointment, the prosecutors simply went to trial and made arrangements for identification by seating Mr. Dougherty among the jury. I should have thought that that action in itself was open to criticism as a method of identification—and as practised, because one does not want the accused, as a rule, to be seated in the jury box among the jurors who are to try him. It is inconvenient for the jurors, and may lend itself to abuse. Yet that is what was done.
§ My Lords, what rendered the situation much worse, so I understand, was that the whole process of identification by this means was in fact a charade, because the two store detectives were allowed to watch the seating of the defendant 694 through a glass panel in the court door, They were thus in no difficulty in providing the identification. I should like to ask: how did that happen? Did anyone tell the court or the jury that this extraordinary impropriety had taken place? One does not want to animadvert either on the conduct of the prosecution or on the conduct of the store detectives, but how can that have been proper? The object of the exercise was to let the jury think that there was a proper method of identification taking place and that the store detectives were trying to find the real man, not knowing where he was. Did the store detectives give evidence? Did they tell the court that the whole thing had been stultified by their seeing the man put in the jury box so that they knew exactly who was under suspicion? And, if not, were they not in some way guilty of really a contempt of court, of almost a conspiracy to defeat the ends of justice? When did the authorities first learn that this extraordinary thing had happened, and what did they do when they had found out? These are questions which I feel I am bound to ask. Somebody must have known sooner or later that the court had been misled. Why did the prosecution let it happen in the first place? Was it negligence, or what was it?
§ Then comes a series of events for which I do not think the prosecution can be blamed. The accused had, I believe, given a list of five potential alibi witnesses, and in the event he called and it may have been that he was able to call, only two. These were respectively, I understand, his mistress and his best friend, who also had a criminal record. It is not perhaps surprising that in face of the positive identification the jury believed—
§ LORD GARDINER
My Lords, I am sure the noble and learned Lord will excuse me if I say that the friend had no criminal record; he is thinking of another witness.
§ LORD HAILSHAM OF SAINT MARYLEBONE
My Lords, I am very much obliged to the noble and learned Lord; I am glad to be put right on such an important point. It is very important that it should be put right. But the point I am making is still the same: that the only witnesses that the accused man was 695 able to call were witnesses who might be thought to have an interest in the result of the case, a bias in favour of the accused. This of course was not the fault of the prosecution, and it no doubt assisted the jury to accept the evidence of identification at its face value. At any rate, the result was that Mr. Dougherty was convicted and sentenced for an offence which he did not commit and a suspended sentence which had been imposed upon him, I gather, for an earlier offence, which I believe he did commit, was activated against him. This situation can only give rise to a demand for a statement as to what is going to be done about it.
The prosecution were in a position to have known the truth from the start, for the reasons I have given. I understand that he appealed against conviction and that that appeal was in the first place turned down. I think I can understand how that happened, owing to the difficulty of upsetting a jury verdict by fresh evidence in cases where the evidence could have been provided by greater diligence on the original trial. But I think it probably unfortunate, if I am correctly informed, that the legal aid certificate which was granted for the first appeal allowed for counsel only and not for solicitors and counsel; because where fresh evidence is the issue, and where, as in this case, it would have been necessary to interview at any rate a substantial number of those who were present at Whitley Bay from the coachload, I should have thought a solicitor's intervention was almost essential; and I should have thought it ought to be a general rule that solicitors are instructed in such cases as well as counsel.
The end of it was that the organisation known as Justice took the matter up with great public spirit—and I see in his place the noble and learned Lord, Lord Gardiner, who I know has a great interest in the work of Justice—and instructed solicitors and counsel for what I think was the second and subsequent appeal. They did a public service and I hope at least they have been indemnified. I notice that the Lord Chief Justice said in the course of the appeal that this was a disturbing case and that some sort of inquiry as to the situation on appeal is taking place internally in the Judiciary. 696 This is not specifically the noble and learned Lord's ministerial responsibility, but if he could tell us more about that inquiry, and if he could tell us whether the result will be known, how it will be known, and when it is likely to be known, I should of course be grateful.
Lastly, there is the question of compensation. I assume that Mr. Dougherty will be compensated, or has been compensated, but I should like the noble and learned Lord to tell us what the position is and the kind of scale upon which compensation in these cases is contemplated. One hopes they are very rare. My Lords, this is a late hour. I had other things I wanted to say, but I felt quite clear in my own mind when I read the account of this case in the paper both that the Government ought to make a statement and that this House, with the noble and learned Lord on the Woolsack, was probably the best place where they should be asked to do so. I hope that I have not taken up the time of the House too long.
§ 7.46 p.m.
§ LORD GARDINER
My Lords, may I first very respectfully congratulate my noble and learned friend on the Woolsack on his speech in the debate in reply to the gracious Speech from the Throne. Those who took part in the debate took advantage of the opportunity to offer their congratulations. For the first time I think in ten years. I did not take part on the Home Affairs day and was therefore deprived of that opportunity.
My Lords, may I first say this, as Chairman of Justice? Justice is an all-Party body of lawyers whose function it is to make recommendations for what they consider would be improvements in the administration of justice. They do not and cannot ordinarily take on individual cases. They have not the money and they have not the staff. We have an admirable secretary and assistant secretary and, when we can afford it and can get one, a typist. That is the staff. Their function is to serve the council, the executive committee, and the many committees of Justice, which are always at work. I venture to ask permission to say this because in this exceptional case, where we found someone in prison who it was clear to us could not have committed the crime, and who had no one to advise him or to help him, naturally men of good 697 conscience could do nothing else than to put their hand into their personal pocket and say: "We will guarantee the cost and take the staff off their ordinary work to help." But since this happened, both Justice and I have been absolutely inundated with letters from all over the country from people who say they were wrongly convicted; and I am grateful for the opportunity to make it plain that ordinarily we cannot take on individual cases.
The importance of the Dougherty case I think is simply this. A great many things went wrong and nearly all these things are matters in the field of the administration of the criminal law upon which Justice has already published reports or got out memoranda, and made recommendations, which, if they had been accepted and implemented, would have prevented these matters from arising.
May I first take legal aid? The system of criminal legal aid always seems to me vastly inferior to civil legal aid. In the first place, there is no unified scheme for allocating solicitors in a case of criminal legal aid. A number of solicitors have complained fairly recently that, having intimated to the local court that they are prepared to take legal aid cases, the cases all seem to go to other solicitors. There seems to be no unified practice. Justice has discussed this matter with the Law Society. Nothing in particular has been done. In some cases the clerk of the court gives the man who has been granted legal aid a list of local solicitors from which to choose, sometimes with advice, sometimes without advice. In this case, Mr. Dougherty was simply told, "This is your legal aid solicitor", and he had no alternative.
The next difficulty under this head (and I do not in the least blame him for this) was that the solicitor, when Mr. Dougherty said that he wanted all the 20 adults on this coach (it was a children's outing to the sea and Mr. Dougherty and one other man were the only fathers; all the rest were mums) said, "I will call this a legal aid case; it is public money and I shall be criticised if I call 20 witnesses, you had better choose your best five." No guidance seems to have been given to Mr. Dougherty about the five. Of course he would have done better to find out from the parent who organised the outing the names and addresses of 698 those he had not previously met and who would have been more convincing as witnesses; but that did not happen. He was not told to make sure that those he called were of good character. He was told to choose his best five, and so he did.
There were no proofs taken from these witnesses. The proofs (if that is the right word) supplied to counsel were merely Mr. Dougherty's account of what tile witnesses would say; and we all know the dangers of that. No witness summonses were sent to the witnesses. Mr. Dougherty was left to bring them to court. In the result, he chose five. One of them did not come because she was afraid, having a conviction herself. As your Lordships will remember from our discussions on my Rehabilitation of Offenders Bill, it is the law that in any case, criminal or civil, any witness can be asked about any conviction h or she has, however old and however irrelevant.
In the Report of the Committee of which I had the honour to be Chairman we pointed out in how many cases the truth was not given in evidence because people were afraid to go into the witness box. The woman who organised the coach outing wanted to take her husband to the hospital that day, and she was told by the police that if she made a statement she need not go to court. So only three of the five attended. Of these, one woman had a previous conviction, so counsel said, "I cannot call her"—the same point again. That left him with only two, the other father and the woman with whom he is now living. He is a man who is separated from his wife. They have six children, and by amicable agreement his wife has charge of three and he looks after the other three. Of course, to call the woman with whom he was living is not very impressive from a jury point of view.
So, my Lords, I suggest two remedies arising out of this. First, ought not encouragement to be given, perhaps by the noble and learned Lord on the Woolsack, to the Society of Clerks to Justices and the Law Society to get together and work out some uniform scheme as to the method by which solicitors are selected in criminal legal aid cases. Number two, and better still, ought we not to do what Justice has advocated for a long time; that is, provide that in every court there 699 should be a duty solicitor. This is the practice in Scotland. Under their Legal Aid Scheme every sheriff court is attended by a duty solicitor, drawn from a rota of the local solicitors, and anybody who may walk in at the front door of the court and who has not a lawyer is at once asked to see the duty solicitor. Very often such people have never been in court before; they do not understand the procedure; they do not know what is going on, and under this system they can immediately get advice from the duty solicitor. The system has already been tried in one or two towns in England where I am told that it works extremely well. Would the Government consider whether we should not have such a system here?
Regarding the police, anything I say about the police conduct is subject to an inquiry which is being undertaken by an independent chief constable, the Chief Constable of Northumberland. The information which Justice has is that the Chief Constable of Northumberland is carrying out a wholly independent and very careful investigation, so anything I say is subject to that. I make the following points. First, there was no identification parade, for whatever reason, although Mr. Dougherty asked for one. Secondly, as to police photographs, the Home Office advisory memorandum was not complied with. That document says in paragraph 18:Photographs of suspects should never be shown to witnesses for the purpose of identification if circumstances allow of a personal identification.And then, in paragraph 20:If a witness makes a positive identification from photographs, other witnesses should not be shown photographs but should be asked to attend an identification parade.In this case, as I understand it, photographs were shown to both witnesses in the same room on the same occasion. Thirdly, as I understand it, the original statements from the two store detectives, or the two employees at the shop, were to the effect that the theft (it was not a complete theft: a roll of coating material was lifted and was later thrown down on the ground) was carried out by a group of three, of whom an old lady with a stick was one. When the police decided that it was Mr. Dougherty, these statements were withdrawn and there were 700 substituted statements in which the witnesses of the shop spoke about only one man, Mr. Dougherty.
Then, my Lords, I agree with the noble and learned Lord, Lord Hailsham of Saint Marylebone, that there was no adequate inquiry into the alibi. They did, I think, see two or three of those on the coach who corroborated Mr. Dougherty. They never, I think, saw any others, and in spite of the fact that those they did see corroborated Mr. Dougherty, they went ahead and prosecuted.
As to the remedies here, No. 3 (I say "No. 3" because I am collecting points with which I hope the noble and learned Lord on the Woolsack may choose to deal, and under the heading of legal aid I have already raised two) is not the right remedy—what Justice has been pressing for for years, in their Report called The Prosecution Process in England and Wales. Our police are in some ways the least controlled and the most powerful in Europe—and when I say that what I have in mind is this. First, as to their being the least controlled, I do not know any police force in Europe, other than ours, which is not under the control of a Minister responsible to Parliament. I believe I am right in saying that it was simply because of the excesses of the French police at the time of the French Revolution that when we decided to have a police force we thought we would create a hundred or two hundred separate police forces. I do not mean to say that they are not highly disciplined, but they are responsible only to their chief constable, except to the extent that the Home Secretary through the Commissioner of the Metropolitan Police, has some influence on the Metropolitan Police; otherwise they are independent.
I remember when I was a member of the Committee of which the noble and learned Lord, Lord Evershed, was Chairman, on the Practice and Procedure of the Supreme Court, we found a great many things wasted in actions for damages for personal injuries on the roads because the policeman would not produce his notebook until he was subpoenaed at the trial. In a traffic accident case, of course, he is a completely independent witness, and very often if only both parties had known from the start what the policeman had in his notebook as to the position of the vehicles 701 and what the drivers said to him immediately after the accident the action would never have been brought. We suggested to the Home Secretary that the police should produce the notebook to both parties immediately after the issue of the writ. But naturally the Home Secretary has said, "I do not control the police. All I can do is to put your recommendation to the next meeting of chief constables, and every chief constable will have to decide for himself." As I have said, I think this situation obtains nowhere else.
Then, my Lords, when I said that our police are the most powerful what I had in mind was simply that in this country the police investigate a crime reported to them; they interrogate suspects; they decide whether or not there is to be a prosecution; if there is to be a prosecution who is to be prosecuted and—most important—what the charge is to be; who will be called as witnesses. And, except for those relatively few cases undertaken by the Director of Public Prosecutions, they prosecute. So far as I know, this does not happen anywhere else. The very well reasoned report by Justice on the prosecution process gives a detailed account of the independent prosecuting authority in Germany, of the independent prosecuting authority in Holland; and there came to London at our request a distinguished French judge to explain to us that although under the Napoleonic law they have not an independent prosecuting authority, as soon as the prosecution starts the police are under the direct instructions of the juge d'instruction who decides all these matters—whether bail is to be opposed, and so on.
In Scotland of course the police make inquiries into a crime reported to them and they interrogate suspects, but they do not decide whether there is to be a prosecution; they do not decide who is to be prosecuted or what the charge is to be, and they do not prosecute. All that is done by the Procurator-Fiscal, an entirely independent prosecuting authority. Your Lordships may remember that since this report was published—and it was published between three and four years ago, when the noble and learned Lord, Lord Shawcross, was the Chairman of Justice—the committee of which the noble Lord, Lord Hunt, was chairman recommended that the Scot- 702 tish system should be applied to Northern Ireland; and the last Government complied with that recommendation, except for very small cases. So I think we remain the only country in Europe in which the police have these enormous powers in certain cases being not only the prosecutors but also the principal witnesses.
About once a year I have tabled a Question on this matter to the noble and learned Lord, Lord Hailsham of Saint Marylebone, who said either that the Government were considering the matter or that they did not propose to make this change at the present time. I express the hope that the Justice report may be more sympathetically considered (particularly after the Dougherty case) by the present Government, and I should like to inquire what the views of the noble and learned Lord, the Lord Chancellor, may be.
I would suggest that the next remedy in relation to the police is that we must try to persuade the Home Office, not only on this point but on others, that we live under the rule of law. If we live under the rule of law then either there is a law about something or there is not: if there is a law then it ought to be obeyed and enforced; if there is not, it is a matter for our own judgment. This applies not only in the field of the law of immigration. I have expressed the view before that our immigration law is the most illiberal immigration law in Europe; but this is really because the Home Office like everything to be decided at the discretion of officials, immigration officers or civil servants, as indeed nearly the whole of the practical side of our immigration law is, and they have an absolute passion for advisory circulars. I do not know how many of your Lordships may have seen a two and a half hour programme on the B.B.C. dealing among other things with legal aid, in which one of the points that transpired and was the subject of research work was the astonishing difference between the chance of getting legal aid in one magistrates' court or another. There are magistrates' courts in which the chance of getting legal aid may be 70 or 80 per cent., whereas there are other courts in which the chance of getting legal aid is less than 5 per cent.
Your Lordships may remember that the noble and learned Lord, Lord Widgery, was chairman of a committee 703 which recommended that certain criteria for deciding criminal legal aid should be set out. I remember in connection with the Criminal Justice Bill of the last Government that some of my noble colleagues and I tried to get these criteria incorporated into the Act because we said if there are to be these criteria they ought to be put into an Act. The Home Office as usual said, "You leave it to us; we will do it by means of an advisory memorandum". The difficulty about that is that the Home Secretary cannot make the law. These Home Office advisory memoranda to justices of the peace meet with a different fate in different courts. In some courts the clerk gives the justices on that bench a copy; in other courts the clerk gives each justice his own summary of what he thinks the Home Office memorandum amounts to, and I am afraid that in a few courts they never leave the clerk's table. But what must be clearly recognised is that any bench of magistrates, and indeed any magistrate sitting in any court anywhere in the country, is entitled to say, "I have read this Home Office advisory memorandum. I entirely disagree with it and I do not propose to do anything of the kind".
There is no sanction, and indeed according to the Home Office document itself the sanction is dealt with on the front of the document, where it says:The memorandum has been prepared in consultation with the Lord Chief Justice and the Secretary of State understands that failure to observe its provisions may well result"—in what?—in the judge, in his summing up to the jury, commenting on the reliability of the evidence obtained".Of course, that is not likely to deter any police officer. There ought to be rules, both as to identification parades and as to police photographs, and when they have been decided then in my view they ought to be passed into law.
I will not trouble your Lordships with the details of the many Justice proposals about this. They put in two separate memoranda to the Criminal Law Revision Committee dealing with the whole question of the conditions which should obtain on identification parades and police photographs. Even the Criminal Law Revision Committee have expressed the opinion that mistaken identification is" by far the greatest cause of actual or 704 possible wrong conviction", notwithstanding that their report did not cover any of the recommendations which had been made by Justice.
The other point in relation to the police is this: there is no clear law as to whether or not whoever is prosecuting and has in his possession a statement which he does not propose to use himself but which is helpful to the defence, should produce that statement to the defence. There is a dictum which I believe is obiter by the noble and learned Lord, Lord Denning, that this is a requirement of the law. There is a decision of the Court of Appeal that it is not. Certainly when I was brought up and, I hope, properly trained at the Bar, I was told that if I was prosecuting it was my duty to see that any information which the prosecution had and was not going to use was passed to the defence, and I should like to ask the noble and learned Lord on the Woolsack whether at least that ought to be clarified so that we know the position.
It was said in the second appeal that the case had never been committed by the justices. As this has given rise to some misunderstanding and I observe from a letter in The Times that the Bench of magistrates in question felt that this was a reflection on them, may I say that I understand that counsel intended no such thing. He was not attributing blame to anyone. It was a consequence of the Section 1 procedure. Although Mr. Dougherty was at the magistrates' court, witnesses were not asked to identify him there. So strictly speaking there was no evidence, on committal for trial, that Mr. Dougherty was the man who committed the crime, because there was no identification. Apparently it was a consequence of the Section 1 procedure; no objection was taken by Mr. Dougherty's solicitors.
My Lords, may we now turn to the trial. This raised again the whole question on which Justice has expressed many views, the dock identification. One has to distinguish between different cases. Of course, if the accused is the brother-in-law of the witness and has known him for twenty years, there is no objection to his being identified in court. But as every practitioner knows, in the ordinary way if the witness has been describing something which was supposed to have been done by some man whose face she 705 has glimpsed and then she is asked, "Would you look round the court to see if you can see him there", of course she looks straight at the dock and says, "That's him" because, among other things, she reckons he would not be in the dock being prosecuted by the police if it were not him. This is completely unsatisfactory, as everyone realises.
The course taken in this case is not at all unusual. It is not unusual for counsel, in the absence of the jury and witnesses, to ask the judge to agree to the accused leaving the dock and sitting somewhere else. In this case, the judge acceded to that request, and the accused was put to sit among the jury. The trouble was—and I do not think it was bad faith by the witnesses or anyone else—the solicitor's clerk noticed that in the room in which the witnesses were there was a glass window separating that room from the court, and the witnesses, as they readily agreed as soon as asked, had seen Mr. Dougherty sitting in the dock, had seen him taken out of the dock and put among the jury. So the whole thing was really rather a farce. It was submitted to the judge that in these circumstances the case could not go on.
My Lords, what is unsatisfactory about this. I think, is this. Although this was the main argument on the first appeal, the Court of Appeal has never laid down how far, or in what circumstances, an identification which is simply a dock identification ought or ought not to result in a conviction being allowed to stand. This is really part of the whole problem of identification. Therefore, No. 6 on my list for the noble and learned Lord on the Woolsack is to say that this is not, as we all know, a very easy question. As I have said, there are some cases in which there can be no reasonable objection to a dock identification, but the whole problem of identity parades and their conditions, the production of police photographs and their conditions, and of dock identification ought to be considered by a committee; not, please, a committee of all judges, but representing one or two ordinary people.
The danger of identification is that anyone in this country may be wrongly convicted on the evidence of a witness who is perfectly sincere, perfectly convinced that the accused is the man they saw, and whose sincerity communicates 706 itself to the members of the jury who therefore accept the evidence. It is not an easy field, but I submit it is unsatisfactory that there is no clear authority from the Court of Appeal as to what is the law about dock identification. It may be that the noble and learned Lord the Lord Chief Justice may feel that it is a difficult subject which really ought to be dealt with by legislation rather than by decision of the Court of Appeal. One can understand that, but one way or the other, the time has at last come when these problems of identification should be seriously considered by a committee.
My Lords, lastly I turn to the Court of Appeal. The first trouble here (there is nothing new about it; Justice has been complaining about it for a considerable time) is the difficulty in getting the Court, when it grants legal aid, not to say "Counsel only". Here was a case in which not only Mr. Dougherty's lawyers but Justice itself pressed the Court to give legal aid. I would hope that some representations might be made so that the Court may be more liberal in its practice. This is a point already taken up by the noble and learned Lord, Lord Hail-sham of Saint Marylebone.
My Lords, I regret to say that there was an unfortunate letter written by the office of the Registrar of the Court of Appeal. I have deliberately said "by the office of", because I am well aware that the letter was not written by the Registrar himself. He did not see it. Indeed, I should like to say publicly that Justice, with all its experience, has a very high regard indeed for the Registrar of the Court of Appeal and his manifest desire that justice should be done. What happened was this. Counsel advised about an appeal. Counsel's advice was, in my opinion, perfectly proper. He said: "There are here two entirely different cases. One is what happened about the dock identification. I think we have got a run on that. It may depend on which judges are sitting, but I think we have an arguable case. If Mr. Dougherty also wants to take the point that he was on this coach at the time, and this could be proved by independent witnesses, then I ought not to appear for him, because clearly in that case he may be asked, 'Why were not these witnesses called at the trial?' and he may want, as he is quite entitled 707 to do, to say that the blame is really with his counsel and solicitors at the trial. Or if he wants to take this point, then I think on this he ought to be separately advised." My Lords, in my opinion that is a perfectly proper opinion to give.
A letter was then sent to Mr. Dougherty from the Court of Appeal which said in substance: You will be glad to hear that your appeal can be heard before the end of July, but that will only be so if you are content to rely simply on the question of the dock identification. Of course, if you insist on wanting to call witnesses who were on the coach, well, first of all the Court will have to agree to your having a solicitor as well as counsel. Counsel and solicitors will have to be appointed. We shall have to get a full transcript of all the evidence of the trial (and goodness knows how long that will take) and it may take months. Now you decide. Mr. Dougherty had by then practically completed the whole of his sentence for this particular offence. Of course, he thought: "Well, what is the good, if I serve the whole of my sentence in relation to this offence before the appeal is heard?" In those circumstances—I think under a good deal of pressure—he consented only to take the point about the dock identification.
My Lords, I think the third thing that went wrong was that the court is much too reluctant to let in fresh evidence. Let me be clear. The rule that ordinarily they will not allow evidence to be called which could have been called at the trial is perfectly sensible, as otherwise one might get counsel and solicitors saying: "Well, we need not call all our witnesses at the trial because if anything goes wrong, we can always call them in the Court of Appeal." That would obviously be wrong. But while I approve of the rule in general, it is, I think, applied far too rigidly. The second Court of Appeal agreed that the first Court of Appeal, which said they had no power to call fresh evidence, was wrong in law. What I find difficult to understand is this. Justice had forwarded to the Court short statements from ten of the people on the coach. The Court of Appeal knew that. They still dismissed the appeal.
708 My Lords, I agree with the noble and learned Lord, Lord Hailsham of Saint Marylebone, that of course there are cases in which a conviction has to be set aside because a judge made a mistake in summing up, or went wrong in the law and the man who is in fact obviously guilty, gets off. But I should have thought that the Court of Appeal ought to draw a sharp distinction between those cases and cases in which the basis of appeal is: "It was not me at all; it was somebody else." I still think it surprising that all they said about these statements was that counsel had not pressed the point. But they had got the letter from the registrar, too, and they did not follow up at all the question why counsel, being in a position to call 10 witnesses to prove the man was somewhere else, was not pressing the point.
The remedy for this is the suggestion that the Court of Appeal are far too rigid; they always seem terrified of being involved in an argument as to whether it was the client's fault that the witnesses were not called at the trial or whether it was perhaps the solicitor's fault. As Justice has observed before, the practical outcome is that a man who is wrongfully convicted because his solicitor was negligent has, at present, to bear the brunt of it.
My last question for the noble and learned Lord on the Woolsack is also one raised by the noble and learned Lord, Lord Hailsham of Saint Marylebone, and that is the question of compensation. There is no law about this. As always with the Home Office, it is to be decided by a civil servant, and it is purely discretionary and it is ex gratia. If whoever decides says £500, it is £500. I think this is wrong. It is, I agree, arguable that the Home Office should say whether in all the circumstances they consider it a case for compensation or not, but if it is a case for compensation then I should have thought it should be assessed on the basis of common law damages. It could be very well assessed, I think, by the Criminal Injuries Compensation Board. They are used to assessing money of this kind on a common law basis, and they do it, I think, to everybody's satisfaction. There are always many things to be taken into account, but it is for them to say which factors in which case. Mr. Dougherty's three children had to be 709 taken into care. In many cases, of course, the man loses his job.
I should like to ask the noble and learned Lord on the Woolsack whether he thinks there is a case for saying, even if the compensation is to be purely ex gratia, it should not be left to an official to assess, against whose decision there is no appeal. It should be assessed by some independent body which is used to assessing damages on a common law footing, according to the circumstances of the case.
I venture to end as I began. There is nothing really which happened and which went wrong in this case which has not gone wrong before in circumstances of which Justice is well aware. Most of these points have been the subject of repeated reports by Justice, memoranda to committees. It is hoped that, in view of the publicity which this case has attached to it, the attitude towards these recommendations may be reconsidered, and such as are thought fit to be implemented may be implemented.
§ 8.24 p.m.
My Lords, persons who live in glass houses should not throw stones, and Liberal Back-Benchers who are laymen should not intervene on an Unstarred Question between two Lord Chancellors, and particularly between three Lord Chancellors, or ex-Lord Chancellors, without knowing enough about the subject. But if I may be allowed, for only two minutes, to put a point of view, not of this Liberal Party but of one Liberal Back-Bencher, it is that this is an extremely important subject and it would be a great pity if no views on it were heard from these Benches. We on these Benches were complimented by the noble Lord, Lord Strathcona and Mount Royal, on giving some support to the Party on my left on the question of not sweeping inflation under the carpet. This is a question of sweeping not inflation but injustice under the carpet, as it might be if it were not fully debated, as it is being tonight; and I believe that that is really the ony thing that can be said about it by anyone who does not know a great deal of the legal difficulties.
It is clear that there has been, through nobody's fault or anybody's fault, a multiple, apparent miscarriage of justice. What the compensation suitable for that 710 is, I do not know. But I do suggest—and I hope and believe that the noble and learned Lord on the Woolsack will support me here—that if there is doubt there should be liberal compensation, that in a case where so many things have gone wrong unexpectedly the compensation should err, if anything, in the direction of liberality. I mention this only because the word "liberal" has been used quite often in this debate—of course, as usual, with a small "1".
§ 8.27 p.m.
§ THE LORD CHANCELLOR (LORD ELWYN-JONES)
My Lords, I am sure that the House will be most grateful to the noble and learned Lord, Lord Hailsham of Saint Marylebone, for having taken this early opportunity to raise the critically important issues which the Dougherty case requires us, and all who are interested in the administration of justice, to consider. I am sure also that noble Lords would wish to compliment my noble and learned friend Lord Gardiner and his colleagues in Justice for the fact that, thanks to their initiative, at any rate at the end of the day, something could be done to remedy, or at any rate mitigate, the miscarriage of justice which admittedly arose in this case.
May I say at the outset, in relation to what has just been said by the noble Viscount, Lord Barrington, and by both noble and learned Lords in regard to the question of compensation, that as the noble and learned Lord who opened the debate said, it was unhappily the case that this man was wrongly kept in prison for nine months. My right honourable friend the Home Secretary has considered the circumstances of the case very carefully, and I am glad to tell the House that it has been decided to grant an ex gratia payment to Mr. Dougherty out of public funds in consideration of the hardship that he has suffered. Before deciding on the amount of the payment my right honourable friend will, in accordance with the normal practice which is followed where such payments are made, refer the case to an independent assessor for advice. Those who will be acting for Mr. Dougherty will have the opportunity of putting matters to the assessor and providing any information which they may deem to be relevant. It will take a little time before a payment can be made, but I can assure the House 711 that no avoidable delay will take place in regard to remedying this aspect of the matter.
In relation to what my noble and learned friend Lord Gardiner has said, while the matter will not necessarily be considered in accordance with the principles under which the Criminal Injuries Compensation Board operates, he will, I know, be reassured to know that the assessor who is to make the assessment in this case is Sir Walker Carter, who, as your Lordships will know, was a distinguished Official Referee of the Supreme Court for many years, and has been Chairman of the Criminal Injuries Compensation Board since it was set up in 1964. There is, therefore, little room for doubt that an appropriate assessment will be made.
A multiplicity of questions has been raised in the course of this debate. I shall do my best to answer as many of them as I can, and I shall have to ask for forbearance as to the time that this will take and as to any omissions for which I may, by inadvertence, be responsible. Perhaps I should start with the handling of the case by the Durham police. I do not need to say that the decision whether to prosecute Mr. Dougherty had nothing to do with the Home Secretary or, in this case, with the Director of Public Prosecutions; it was a decision of the chief constable. I shall have a word to say in a moment about the matters that have been raised in regard to the role of the police in the general overseeing of prosecutions.
When my noble and learned friend Lord Gardiner drew the attention of the then Home Secretary to the fact that a miscarriage of justice might have occurred in this case, the material which was forwarded was sent to the chief constable and he quickly arranged for a senior officer of the Northumberland Constabulary to make a full inquiry into the matter. I was grateful for the tribute which fell from the noble and learned Lord to the independence and efficiency of that inquiry. That inquiry took place, and it clearly revealed unsatisfactory features which have been described in detail to your Lordships.
There is in America a law known as "Murphy's Law", which says that if 712 anything can go wrong, it will, and Murphy's Law appears to have operated, I fear, in many aspects of this unhappy case. First of all, there was the question of identification from photographs. This was not in accordance with the general guidance that has been given to the police, as my noble and learned friend said. There were two witnesses—the store witnesses—and both were shown photographs. Whether the matter would be simplified by colour photographs being made available, I know not. It will certainly be looked into. It will be more expensive, and it may not be easy for a criminal to change his colour. I remember a famous case of one gentleman who appeared in a dock with—or was it without?—a wig, and transformed his appearance thereby; so I am not giving any assurance that a colour photograph will be particularly helpful.
What is important is that both witnesses—the key prosecution witnesses—were shown photographs. The practice which is recommended by the Home Office, and indeed is reflected in the Durham Force instructions, is that when one witness makes an identification from a photograph, the other witness, or indeed witnesses, should not be shown photographs but should be asked to attend an identification parade. Mr. Dougherty was not required to take part in an identification parade. A parade was arranged on one occasion, but unfortunately, owing to some misunderstanding about the date of it, Mr. Dougherty did not arrive. I fear that that probably was certainly the fons, if not the origo, of all the misfortune that flowed thereafter. If he had attended the identification parade, the subsequent difficulties of identification in the Crown Court may well not have arisen.
My noble and learned friend Lord Gardiner has raised the difficult problem of identifications, especially dock identifications. These are regarded as undesirable and to be avoided if possible, but when one looks at the learning from the judges who have dealt with these matters there have been cases where convictions have been upheld following such identifications. It is a difficult field, and I have little doubt that the Home Secretary will give attention to the suggestions that have been made about the state of the law in this field.
713 Turning back again to the police action in this case, it is true that at the time when Mr. Dougherty was charged there was still opportunity, and room, for further police inquiries to be made. With regard to the alibi point that was raised, notice of alibi was not, I am told, given until after the original hearing and the committal proceedings. The police did interview four of the five people named as witnesses. One witness could not be traced, and the remaining four refused to make written statements. There is one suggestion that has been made (I do not quite know how far it goes) that the police dissuaded a witness who could have given evidence—namely, the lady who organised the coach outing—from coming to court. This, the chief constable is satisfied, has no basis in truth. Indeed, it would be a serious matter if there were any truth in it.
There has also been a suggestion that the original statements made to the police by the two crucially important store witnesses described the offence as having been committed by three people—a man, a woman, and a youth. My information is that at no time before the trial did either of the store witnesses refer to more than one person being responsible for taking the curtains, and it was only when the investigation was made by the Northumberland police, and further statements were taken from witnesses, that they mentioned having seen a woman and a youth as well. So that although faults occurred, I know your Lordships will want to be meticulously careful and fair in the pursuit of any matters which are alleged which may, in fact, not be well founded. Suffice it to say that all aspects of the matter from the police angle are now being investigated, and any lessons that are to be learned will, of course, be taken to heart and will be applied by the police force. In addition, the chief constable is considering whether any disciplinary action is required and should be taken in respect of the officers who handled this case. That of course is entirely a matter for him, and your Lordships would not expect me to make further comment on that aspect of the case.
An important suggestion that has been made in the course of the debate is that Mr. Dougherty's case illustrates the need for us to have in England and Wales a 714 separate authority (rather like that in Scotland of the Procurator-Fiscal) to take all responsibility for prosecutions. I confess—and I trust that I shall not get into any trouble for making the confession—that I have some personal sympathy for this point of view. But noble Lords will recognise that that would be a very far-reaching change indeed, with considerable problems of staffing and of finance up and down the country, and I am sure that your Lordships will not expect me to pursue the matter in any further detail to-day. Clearly, such a fundamental change would need very detailed examination by the many people who would be involved, but I will see that my right honourable friend's attention is drawn to what has been said here to-day.
Many anxious questions have been raised about indentification evideace, and my noble and learned friend Lord Gardiner has referred to the discussions which the Criminal Law Revision Committee had on this subject. There is very interesting reading indeed in the 11th Report where, as the House has been told, the Committee stated:…we regard mistaken identification as by far the greatest cause of actual or possible wrong convictions".Those of your Lordships who have had judicial or professional experience in the criminal courts will readily concur. The Committee considered possible ways of minimising the risk. They thought that there should be a statutory requirement that the judge should warn the jury of the need for care in convicting on disputed evidence of identification. They also considered whether, in some circumstances, there should be a need for corroboration of identification evidence, but that suggestion was rejected for reasons which seemed to me to be sound. Where a single householder, with abundant opportunity of seeing men burgling and doing violence to him, might be unable to see that justice was done because there was no one else there to corroborate the story, public indignation would be very considerable. These matters present grave difficulties. But it is only right that I should say that in the Dougherty case the learned trial judge gave "the most explicit and detailed warning", as the Court of Appeal put it, "of the dangers of identification evidence in the form 715 in which it had taken place". It is really in the clearest way, one of the sad features of the case that although the summing-up was impeccable, at the end of the day a miscarriage of justice took place. As to the matter of the glass door which was raised, I am happy to tell your Lordships that that has now been covered over with some object or material which makes it impossible for that situation to arise again.
§ LORD GARDINER
My Lords, I do not know whether the noble and learned Lord is aware that by a species of irony of history one of the workmen who did the conversion was Mr. Dougherty.
§ THE LORD CHANCELLOR
I am sure that that must have given Mr. Dougherty a great deal of personal satisfaction.
A problem which arises in the case is that it appears that the defendant and the prosecution witnesses were in the same waiting room; and that is clearly unsatisfactory. As your Lordships know, the noble and learned Lord, Lord Hailsham, made great efforts to create or find court accommodation, but it is clearly necessary that separate accommodation should be provided where defendants on bail can wait until they surrender to it. A pilot scheme has been carried out at two London Courts to remedy this deplorable situation, where it exists, and I am now examining the position at all court centres with a view to making similar arrangements where that is practicable.
It was reassuring to hear from my noble and learned friend that no criticism is made of the committal proceedings themselves. This was a case under Section 1 where the committing magistrates were not called upon at all to consider the evidence, and I am sure that they will be gratified to be wholly acquitted—if "acquitted" is the right word—of any fault or responsibility for what went wrong. The matter which has perhaps most dominated the discussion in the House has been the working of the provisions for legal aid in this case. The suggestion has been made that Mr. Dougherty had second-rate treatment because he was legally aided, but my right honourable friend and I are not satisfied that that was so. While it is of 716 course regrettable that, as matters turned out, there was insufficient testimony to satisfy the jury about Mr. Dougherty's alibi, that did not in my view result from any fault in the statutory provisions.
With regard to the calling of witnesses, the position of a solicitor acting under a legal aid order is no different from that of a privately engaged solicitor, and it is a matter for his discretion—subject of course to the instructions he may get from his client—to call whatever and as many witnesses as he thinks necessary in support of his client's case. Suggestions have been made which will no doubt be considered about the allocation of solicitors. I have noted what has been said—and indeed in another place I expressed concern about the matter myself—about the apparently different standards that are applied in the response to applications for legal aid in one court as compared with another, even in the same geographical area. That is clearly a matter which needs further investigation. I was also asked about the provision of duty solicitors. This is very much in the mind of the Home Office. Indeed, as has been said, there are a number of experimental schemes already being tried in some of the larger cities and they are being tried successfully. The Home Office would welcome an extension of those schemes, but the matter is one for local law societies in connection with justices' clerks. I am informed that Mr. Dougherty already had his own solicitor when he first appeared at the Sunderland magistrates' court.
With regard to the practice of the Court of Appeal in granting legal aid, which was one of the matters raised, it is the case that when Mr. Dougherty gave notice of appeal against conviction and applied for legal aid he was granted it for "counsel only". As the Lord Chief Justice explained, this was because the single judge who considered the matter thought that the only point to be argued was a technical one as to the nature of the evidence on identification that had been given. In the absence of a solicitor, there was consequently no one to interview additional alibi witnesses, and I am told that although this aspect of the case was raised in correspondence it was barely pursued by counsel in the Court of Appeal.
The House will know that under the Criminal Justice Act 1967 the Court of 717 Appeal has power to grant full legal aid in the Court of Appeal consisting of representation by both solicitor and counsel, but it also has a discretion to limit the legal aid to counsel only. In practice, the services of a solicitor are often unnecessary and in those circumstances, and for the obvious saving of public funds, the Court limits representation to "counsel only". The Widgery Committee on Legal Aid in Criminal Proceedings stated in its 1966 Report:… in the many cases where the whole of the relevant material is contained in the transcript and counsel does not require further instructions, we cannot justify the expense to public funds which would be involved by assigning a solicitor in addition.But the Committee did point out that if additional evidence was required a solicitor would be needed to obtain it, and they expressed the hope that the effect of providing legal advice in the preparation of grounds of appeal—as has now become the practice—would be to enable the Court to recognise more readily those cases where fresh evidence might have to be obtained. And the Committee added:The Court has not been slow to assign a solicitor when these cases appear or when counsel requests it to do so and we recommend no change of practice in this respect.It is unhappily the case that these arrangements did not work in Mr. Dougherty's case, but I can assure the House that the Lord Chief Justice (and this point was expressly raised by the noble and learned Lord, Lord Hailsham of Saint Marylebone) is now considering whether any change of practice is desirable and has asked the judges for their views. No decision has yet been reached, but I have no doubt that the Lord Chief Justice will give information about this matter before long.
My noble and learned friend Lord Gardiner raised some questions as to the perhaps excessive reluctance of the Court of Appeal to admit fresh evidence. I do not think that it is a matter of powers or of the inadequacy of powers. The powers under Section 23 of the Criminal Appeal Act 1968 are indeed quite explicit. The section requires the Court of Appeal to receive any evidence tendered, unless they are satisfied that it would not afford any ground for allowing the appeal, and provided that, first, it appears to them that the evidence is likely to be credible and would have been admissible at the trial, and, secondly, that they are satisfied that 718 there is a reasonable explanation for the failure to adduce the evidence at the trial, and it is for the Court to decide in each case whether those conditions are satisfied.
It is the case that when Mr. Dougherty's application for leave to appeal was considered last July, the Court did not grant his application to call further evidence, but I understand that in the circumstances which arose that that part of the application was not pursued by counsel. When the previous Home Secretary referred the case to the Court the Court was able to exercise powers under Section 23 to order the examination of the witnesses whom Mr. Dougherty wished to call to establish the alibi. That examination took place, and it was then found, of course, that the conviction of Mr. Dougherty was wrong. I do not think any weakness lies in the inadequacy of the statutory powers which are available to the Court. My noble and learned friend raised a question about the supply to the defence of statements taken by the prosecution. This is a matter which the Home Office has under review, in consultation with the interested parties. With regard to the Dougherty case, however, as I understand it, all the statements were provided to the defence, so that does not appear to have been one of the factors which led to the miscarriage of justice.
Then questions were raised about the letter from the Criminal Appeal Office. If I may say so, I was grateful for the tribute paid to the Criminal Appeal Office for its dedication, and particularly that of Master Thompson. Those of your Lordships who are, or were not so long ago, in practice at the Bar, will have abundant reason for gratitude to him for the immense dedication which he gave to the job of seeing that fairness is done. But, so far as the letter itself is concerned, which has been criticised perhaps in excessive language, it is a long factual statement which explained to Mr. Dougherty the situation resulting from the Court's decision not to assign a solicitor. It also sets out, perhaps with undue emphasis, the disadvantages which could arise if Mr. Dougherty insisted on applying for fresh counsel to be assigned in order that the question of calling further evidence could be argued. The letter 719 concluded by saying that if Mr. Dougherty decided to retain counsel there was a chance that the appeal might be heard before July, but that otherwise it was feared there might be long delay. So to designate the letter as improper is, in my respectful submission, a misuse of language. It was not the language used here; but it may well be that the letter can be criticised on the ground that it was slanted in Favour of Mr. Dougherty's taking a certain course and did not make it sufficiently clear that the decision was entirely for him to take.
My Lords, I do not know whether I have covered the whole of the ground. Your Lordships may think that this was an important case. Whenever a miscarriage of justice of this kind occurs, it is right that the circumstances which led to it should be fully examined and exposed, and that steps should be taken, so far as human frailty can go, to prevent a repetition. I hope that your Lordships may think that the Government have taken a properly serious view of the situation and have done their best to remedy it.
§ LORD HAILSHAM OF SAINT MARYLEBONE
My Lords, perhaps the House will allow me to thank the noble and learned Lord the Lord Chancellor for his careful exposition. At this hour I should not wish to say more except that we shall reflect on what he said.