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Criminal Appeal Bill

Volume 181: debated on Monday 19 August 1907

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Lords Amendments considered.

Lords Amendments to the Amendment in page 3, line 6, agreed to.

Question put, "That the Question be now put."

The House divided:—Ayes, 104; Noes, 16. (Division List, No. 433.)

Lords Amendment—

"In page 3, line 6, after the word 'appeall' to insert the words 'or upon the certificate of the Judge who tried him that it is a fit case for appeal."

The next Amendment read a second time.

Motion made, and Question proposed, "That this House doth agree with the Lords in the said Amendment."

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moved that the House disagree with the said Amendment. He was sorry they were called upon to discuss such important matters at that hour of the morning, but he thought the House ought really to consider this proposed change in the Bill before agreeing to the Amendment. As the Bill now stood the appeal would lie by leave of the Court of Appeal, but if this Amendment were made an appeal would lie either by leave of the Court appealed to or by leave of the Court appealed from, and the result would be that every case of criminal trial which resulted in a conviction would as a matter of course end in application being made by or on behalf of the convicted man for leave to appeal, and the Judge who tried the case would be put in the very invidious and undesirable position of being called upon to give or refuse leave to appeal from the decision of his Court. No good purpose would be served, but very serious harm would be done by making the change which was proposed. Let them take the exceedingly rare case where the Judge who tried the case thought that the verdict of "guilty" was unjust. He did not ever remember a case in his experience, and certainly it was exceedingly rare, where after a summing up for acquittal the jury convicted. If there were such a rare case of a Judge who tried a criminal case thinking that the man before him had been unjustly convicted there would be no sort of doubt that he would avail himself at once of his right to report to the Court of Appeal in the matter, so that if in the opinion of the Judge who tried the case the conviction was unjust nothing was gained by making the proposed change. In the other case, where the conviction of the prisoner seemed just and proper to the Judge who tried the case, the prisoner would be refused leave to appeal and the convicted man would go to the Court of Appeal and ask for leave to appeal, with the added disadvantage that the Judge who tried him had refused leave to appeal and probably had taken occasion to say that he entirely agreed with the decision of the jury. Therefore, in the second case, no good purpose was served. Indeed, it would be against the interests of the accused. In the only other possible case, viz., where the convicting verdict of the jury appeared to be doubtful to the Judge, undoubtedly the Judge would always report to the Court of Appeal and there would be very few, if any, cases in which any conviction would ever stand on appeal if the Judge who tried the case expressed in his report any doubts as to whether the decision was right; but in cases where the Judge doubted, he ventured to think the Lords Amendment would be exceedingly undesirable and would extend the mischief which had always been his main ground for opposing the appeal on fact altogether—the ground that it would make it to the interest of juries to convict in doubtful cases because if they acquitted they had to take the responsibility—very possibly of letting loose a guilty man—whereas if they convicted they shifted the whole responsibility on other shoulders. The effect of the Lords alteration would be that the same danger would be incurred in the case of a Judge, especially a weak Judge, that he had tried to indicate in the case of a jury. A Judge who had any doubt as to whether a man was guilty or not, instead of summing up for an acquittal, as he would do in the ordinary course of things, would now be able to get out of his responsibility by summing up for a conviction and immediately giving leave to appeal. To do that would be to relieve himself of responsibility. The Judge would pose as a very broad-minded man ready to give leave to appeal, whereas, as a matter of fact, he would be a man who had in that way sought to shuffle out of responsibility. It was perfectly natural for a Judge Who had expressed an opinion on a point of law to give leave to appeal without having the slightest doubt as to the soundness of his decision, but if on a matter of fact a Judge gave leave to appeal it would be immediately said that he was in doubt as to the justice of the verdict, and therefore a Judge in such a case would feel he must not give leave to appeal. It would place the Judge in an exceedingly invidious and un-satisfactory position, because if he refused leave to appeal it would be said he was hostile and biassed. If, on the other hand, he gave leave it would be immediately assumed by the Court of Appeal that the Judge was not satisfied with the verdict. Taking every possible case it appeared to him that nothing was gained by making the proposed alteration in the Bill. Nothing was gained in time or money. There was a certain amount of disadvantage to the accused person, and the Judge who tried the case was placed in a position which in a criminal case he never ought to be put in.

said he desired to support his hon. and learned friend on this point, and to add that this Amendment of the Lords would give rise to the very thing which the Attorney-General denounced in such strong terms in this House, viz., that in every case application would be made to the Judge. In every criminal case immediately a decision was given, wrangling would ensue as to whether leave should be given to appeal or not. He could not think in any way that this Amendment would be an improvement on the Bill as it left this House. He would venture to move an Amendment to the Lords Amendment—to alter the word "or" into "and" and to add the word "if" The word "and" alone would, no doubt, make it exceedingly hard to get an appeal, because the prisoner would have to get leave not only of the Court of Criminal Appeal but also of the Judge who tried the case. If there was any objection to the Amendment he was prepared to support his hon. and learned friend's Amendment. He thought it would appeal to the common sense of the House that the best tribunal to deal with an initial stage of that kind was the Home Office, who would have a Department for that kind of work. What would happen would be that the prisoner who was in gaol would be entitled to make a written statement. That would be all he could do, and that was all that was to go before the Court of Appeal. That was not a matter which could be dealt with conveniently in open Court. Such a statement must necessarily be of a rambling character and could not well be dealt with by three Judges. It could be dealt with very well by an office in the Home Secretary's Department, and the case would then be more thoroughly gone into. He submitted the Amendment as an alternative to the rejection of the Lords' Amendment. He would prefer the Amendment to the rejection altogether of the Lords Amendment.

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said he could not put the Amendment as he had already put the question that the House do agree with the Lords' Amendment.

said he hoped his hon. and learned friend would not press his opposition to the Amendment. The matter was not a matter of principle but was a comparitively subordinate matter of procedure. The Lords had altered the clause in deference to the wishes of persons who were very largely experienced, and as it was a matter of subordinate interest he thought they should hesitate to disagree with the Amendment. He gathered that both his hon. and learned friends were not friends of the Bill, yet he was sure they would hesitate to send it back to the other House in such a way as seriously to imperil its being passed into law. All the Lords had done was this; as the Bill stood, in order to get leave to appeal it was necessary for a convicted person who wished to appeal to have recourse to the Court of Criminal Appeal only. The Lords were most anxious to diminish the number of applications to that Court, and with that object in view had introduced an Amendment making it optional for the accused person to apply to the Judge who tried the case to give him a certificate, that he thought it was a fit case for appeal. That was to say that where there was room for doubt, and where the great importance and difficulty of the case made it a fit case for appeal, a certificate would be given, and having got the certificate it would not to be necessary to take the further step of asking the Court of Appeal for leave to appeal. There was a good deal to be said for that Amendment. It certainly was not moved in this House, though different Amendments were moved which he had not been able to accept. The Amendment seemed to do the Bill no harm and it might be reasonably continued to be a distinct improvement of the Bill. Having regard to the character of the Amendment he did not think they would be showing a proper regard, he did not say to the other House, but to the chance of the Bill passing into law if they allowed themselves to take the step of rejecting the Lords Amendment for the reasons which his hon. and learned friend had put forward.

said that the case for the Amendment seemed to affect the whole principle of the Bill. It appeared from what the hon. Member for Basingstoke had said, that it would put on the judge all the responsibility which the hon. and learned Gentleman in an eloquent speech, before the Bill went to the House of Lords, said it was desirable to take away from the Home Secretary. It appeared to be on all fours with the responsibility which the law at present put on the Home Secretary. The Home Secretary was not asked to decide whether the prisoner was guilty, but whether it was desirable to ask the Sovereign to exercise the prerogative of mercy. The Judge was only directed to say whether the case was a proper one for appeal, therefore, the Judge had the same kind of responsibility which it was deemed desirable under that Bill to take away from the Home Secretary. When they remembered what the Attorney-General said on another stage of the Bill there was every reason not to support the Lords Amendment. He was surprised at the very few words in which the Attorney-General had upheld the action of the other House in regard to the Amendment, for if ever there was a case of interference with a Bill, that this was one. The Amendment was a very strong one, but the hon. Gentleman had given no reason why they should support it. All that had been said in support of it was that it would give them a better chance of passing the Bill. That showed a better spirit towards the other place than had yet been exhibited, but it seemed as though some reason should be put forward in support of the Amendment.

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said the Amendment cast on the Judge a very invidious duty, for unless they were to shut their eyes to an Amendment which followed just after which limited the right of appeal to Questions of Law they were faced with this difficulty viz,, that the Judge who had already directed the jury in his summing up of the case as to the law applicable to the issues of fact which they had to determine would under this Amendment be called upon to give a certificate that it was a fit case for appeal. In effect the Judge who had with great care and patience directed the jury on the law affecting the case only a short time before the verdict was to be asked to stutlify his direction and to place himself in the undignified position of questioning the correctness of his interpretation of his law and ruling. He thought that the Amendment ought to be resisted.

The House divided:—Ayes, 90; Noes, 19. (Division List No. 434.)

AYES.

Acland, Francis DykeCrossley, William J.Henry, Charles S.
Ainsworth, John StirlingDavies, Timothy (Fulham)Higham, John Sharp
Balfour, Robert (Lanark)Dobson, Thomas W.Hobart, Sir Robert
Baring, Godfrey (Isle of Wight)Duncan, C. (Barrow-in-FurnessHobhouse, Charles E. H.
Benn,W.(T'w'r Hamlets, S. Geo.Elibank, Master ofHolland, Sir William Henry
Berridge, T. H. D.Everett, R. LaceyHolt, Richard Durning
Bottomley, HoratioFenwick, CharlesHorniman, Emslie John
Bowerman, C. W.Ferens, T. R.Howard, Hon. Geoffrey
Bramsdon, T. A.Fiennes, Hon. EustaceIllingworth, Percy H.
Burns. Rt. Hon. JohnFuller, John Michael F.Isaacs, Rufus Daniel
Carr-Gomm, H. W.Gill, A. H.Jones, William (Carnarvonshire
Cleland, J. W.Gladstone, Rt. Hn Herbert JohnKearley, Hudson E.
Clough, WilliamGoddard, Daniel FordKelley, George D.
Clynes, J. R.Harmsworth, Cecil B. (Worc'r.)King, Alfred John (Knutsford)
Corbett,C H (Sussex, E. Grinst'dHaworth, Arthur A.Lehmann, R. C.
Cowan, W. H.Hedges, A. PagetLever, A. Levy (Essex, Harwich)
Crooks, WilliamHenderson, Arthur (Durham)Levy, Sir Maurice

Lewis, John HerbertNuttall, HarrySimon, John Allsebrook
Lloyd-George, Rt. Hon. DavidO'Connor, John (Kildare, N.)Stanley, Hn. A. Lyulph (Chesh.)
Lupton, ArnoldPearce, Robert (Staffs. Leek)Thompson, J. W. H (Somerset, E
Lyell, Charles HenryPrice, C. E. (Edinb'gh, Central)Ure, Alexander
MacVeagh, Jeremiah (Down, S.Rainy, A. RollandWalton, Sir John L. (Leeds, S.)
M`Laren, H. D. (Stafford, W.)Richards, T. F. (Wolv'rh'mp'nWhitehead, Rowland
Manfield, Harry (Northants)Ridsdale, E. A.Whitley, John Henry (Halifax)
Markham, Arthur BasilRoberts, Charles H. (Lincoln)Wilson, Henry J. (York, W. R.)
Marks, G. Croydon (Launceston)Roberts, John H. (Denbighs.)Wilson, W. T. (Westhoughton)
Marnham, F. J.Rogers, F. E. Newman
Mason, A. E. W. (Coventry)Russell, T. W.TELLERS FOR THE AYES—
Micklem, NathanielSamuel, Herbert L. (Cleveland)Mr. Whiteley and Mr. J. A.
Morgan, G. Hay (Cornwall)Seely, ColonelPease.
Nicholls, GeorgeSherwell, Arthur James
Norton, Capt. Cecil WilliamSilcock, Thomas Ball

NOES.
Acland-Hood, Rt Hn. Sir Alex FCollins, Sir Wm. J.(S.Pancras,WRawlinson, John Frederick Peel
Arkwright, John StanhopeCourthope, G. LoydTurnour, Viscount
Balcarres, LordDunn, A. Edward (Camborne)Valentia, Viscount
Banner, John S. Harmood-Fell, Arthur
Bertram, JuliusForster, Henry WilliamTELLERS FOR THE NOES—
Bridgeman, W. CliveHay, Hon. Claude GeorgeMr. Salter and Mr. Nield.
Cave, GeorgeHills, J. W.
Cavendish. Rt. Hn. Victor C. W.Pease, Herbert Pike(Darlington

Lords' Amendment—

"In page 3 to leave out lines 14 to 19."

The next Amendment read a second time.

Motion made, and Question proposed, "That this House doth disagree with the Lords in the said Amendment."—( Mr. Bottomley.)

said he begged to move that the House disagree with the said Amendment. The Amendment had the effect of cutting out altogether from the Bill the clause which it was his privilege to get into it, with the consent of the Government and of the House. The Lords proposed to omit entirely the provision that a person under the sentence of death should have free access to the Court of Criminal Appeal. He thought that the House was satisfied that the conscience of the country which consider the Bill unsatisfactory if any obstacle were placed in the way of a person under sentence of death being allowed to appeal. In a matter of that kind the interference of the Peers was a gratuitous interference with the wishes of this House. The Peers were not amenable to the criminal law and he did not think they ought to submit to their intervention in a matter of that kind. The view of the Judges. that the sense of responsibility of juries would be lessened was not worth arguing, for he did not think that any jury would lightly find a man guilty of a crime which would involve the sentence of death. He thought the matter was entirely one for this House, which provided the machinery for the Court of Appeal, to deal with. He did not think there was any need to consider whether appeals would be too frequently made. He proposed to restore his clause and he would suggest that the Attorney-General should provide for a verbal alteration, as otherwise there might be serious difficulty, for as the clause stood there was some doubt as to whether it would not include a person convicted upon an indictment for murder or manslaughter only.

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said he hoped his hon. friend would not press his Amendment. The only result of the alteration the Lords had made was to restore the Bill to the form in which it came into the House and passed its early stages. After the Bill came back from Committee his hon. friend moved that in all capital cases there should be a right of appeal, and he was constrained to accept the Amendment. He did so because it might be considered to give a greater advantage to a criminal in a capital case. He was satisfied on reflection that no larger advanatge was conferred on a criminal under sentence o f death than on other criminals. His reason for that conclusion was that a prisoner who had been sentenced to death could appeal to a Court of Criminal Appeal for leave to appeal. That meant that he would be represented by his counsel, and the whole of the points that could be urged in support of the appeal would be urged by the counsel representing the accused prisoner and they would be heardex parte. They would not be met by the prosecution, so that the accused prisoner would have every conceivable advantage in trying to satisfy the Court of Appeal that there was some doubt which would justify calling on the counsel for the prosecution for an explanation. He did not think the prisoner got any greater advantage under the clause the hon. Member now wanted to restore than he did from the Bill as it stood before. The prisoner was able to make his first impression without contradiction or opposition, and if there was any doubt the Court would call for the prosecution to make some explanation and they would appear through counsel. He did not think the accused person would suffer any disadvantage and consequently he urged the hon. Member not to press his Amendment.

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said that in deference to the hon. Gentleman, and only because he did not wish at this stage of the session to endanger the passage of the Bill, he would withdraw his Motion. Motion, by leave, withdrawn. Lords' Amendment agreed to. Subsequent Lords' Amendment agreed to. Lords' Amendment—

"In page 6, line 12, to leave out from the first word 'and' to the word 'shall in line 14'"—read a second time.

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said he wanted to say a word about this Amendment. By the Bill as it stood the Judge or presiding chairman was to give a report in certain cases only, namely, in case of appeal against the sentence only, or where he thought it desirable in the interests of justice or was required to do so by the Court of Criminal Appeal. The Amendment would have the effect of insisting on a report in every case of appeal or application for leave to appeal. That placed a very heavy burden on Judges and chairmen of quarter sessions. The matter had been discussed in Committee and on other stages of the Bill, and the position as it stood before the Lords introduced that Amendment represented a very fair compromise. The general opinion of all experts in the matter was that it would be enough if reports were presented where the Judge or Court of Appeal thought that it was desirable. In his opinion where neither Judge nor Court of Appeal thought it necessary it would be superfluous that those reports should have to be furnished. He hoped the Attorney-General would say what his own view was in regard to the matter. At at present advised he was not prepared to accept the Amendment.

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also opposed the Amendment, for he thought that the House of Lords were seeking to impose an unnecessary and unreasonable burden on Judges and chairmen. As the Bill stood there was provision for full reports in cases where they were required. They were to be given in every case of appeal against sentence, where the Judge who had tried the case thought it was desirable, or where the Court of Appeal desired it. The great majority of the applications for leave to appeal would be unsuccessful and the question was whether in such cases the Judge was to be called on in each case to furnish a report. That would be an exceedingly unreasonable and vexatious provision. They could imagine a chairman of quarter sessions or a Judge of assize at the end of a heavy day, when he had tried ten separate cases, called on to make ten separate reports which the Court of Appeal did not desire, and which would be of no use to anyone. He hoped the Attorney-General would ask the House to disagree with that Amendment for he did not think that it the House disagreed with it any disaster could possibly arise. Motion made and Question proposed, That this House doth disagree with the Lords in the said Amendment. (Mr. Cave).

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said he did not know whether the Amendment made in the Bill in the other House improved the Bill or otherwise, but it was a very small matter, for the only result of the Amendment was that the Judge or chairman of quarter sessions when he sent up his notes, would write upon them what his opinion of the case was. He might say, in doing so, that the case was perfectly clear, or that there was doubt about the evidence of some witnesses, or for some other reason that the verdict was open to some doubt. He had heard the arguments with regard to this matter in the House, and there seemed to be a very strong view that the Judge trying the case ought to express some opinion. He thought the Amendment might be a very useful one but it was open to doubt, and certainly he would not feel justified in supporting the Motion.

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drew the Attorney-General's attention to the wording of the clause. which said that the Judge "shall deliver his note on the case or upon any point in the case." The learned Attorney-General had told them how useful it would be to have the Judge's notes on the trial, but the Judge need not give them. If any point arose in a case he could give his note on that point, but he might not give them the note on the whole case which was really wanted. The Amendment they were now asked to accept was cutting out the words "if required." The effect wonid be to defeat the Attorney-Gensral's own object. As the Clause stood the Court of Appeal could ask for and obtain what notes they wanted. If the Amendment was made it might be impossible for them to do so Either those words at the end of that clause were not necessary at all, or else they were dangerous. He hoped the learned Attorney-General would give his careful consideration to that point. Lords Amendment agreed to. Subsequent Lords Amendments agreed to.