Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Rodger of Earlsferry moved Amendment No. 69:


Page 26, line 20, after second ("appeal") insert ("and make such comments in writing as the court considers appropriate").

On Question, amendment agreed to.

6.30 p.m.

Lord McCluskey moved Amendment No. 70:


Page 26, line 28, at end insert:
("provided that if any Judge of the High Court considers that there are or may be arguable grounds of appeal, leave to appeal shall be granted.").

6 Feb 1995 : Column 65

The noble and learned Lord said: My Lords, this amendment is designed to ensure that if a person applies for leave to a single judge and is refused and then exercises his statutory right to apply to three judges of the High Court, any one of the judges of the High Court may grant leave if he considers that there are (or may be) arguable grounds for appeal. In short, if any single member of the court thinks that there is a suitable ground for appeal, the appeal should be allowed to go ahead. That reflects the practice in a number of courts, including the United States Supreme Court. In such courts if petitions for the court to entertain a case are considered they are looked at by all the judges individually, and I think that, usually, if three of the judges are in favour of granting leave to proceed with the petition, the petition proceeds; otherwise it does not.

So it is a practice that is well understood in other common-law jurisdictions and it would be desirable if we had that established here. Otherwise we shall simply get what would appear to be bland unanimous decisions issued by the three judges, concealing the fact that one of the judges thought that there should have been appeal leave granted. In these circumstances I beg leave to move the amendment.

Lord Rodger of Earlsferry: My Lords, I have listened with interest to what the noble and learned Lord has said. He must know his colleagues better than I but, with respect, in a situation where any one of the judges thought that there were arguable grounds for appeal, it would be difficult for his colleagues to say that it is a matter beyond all argument. For that reason, in that kind of situation I would expect that the tendency of the Appeal Court would be to grant leave to appeal. I noted, however, what the noble and learned Lord said about practices in other jurisdictions, and I am quite happy to reflect further on that matter. I am not persuaded that a change should be made, but I am happy to reflect upon it.

Lord McCluskey: My Lords, in those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Lord McCluskey moved Amendment No. 71:


Page 26, line 28, at end insert:
("(5A) Provided that this section shall apply
(a) where the appeal is on any ground which involves a question of law alone, or
(b) if the judge of the court of trial grants a certificate that the case is fit for appeal on any ground whatsoever; and provision shall be made, as soon as is reasonably practicable, by Act of Adjournal for procedures to seek, obtain and grant such a certificate.
(5B) An appellant shall be entitled to be present when his application for leave to appeal is considered if the judge or court considering the matter gives him leave.
(5C) Subject to subsection (5B) hereof, consideration whether or not to grant leave to appeal under subsections (1) or (5) above may take place in chambers without the parties being present, but the judge, in the case of subsection (1), or the High Court, in the case of subsection (5), will have the right to order a hearing with the

6 Feb 1995 : Column 66

parties present to enable the application for leave under section 228(1) or under subsections (1), (4) or (5) of this section to be the subject of submissions.").

The noble and learned Lord said: My Lords, this is a rather lengthy amendment but I hope its meaning is plain on its surface.

First, I am proposing to add that this section shall apply where the appeal is on any ground which involves a question of law alone. That is the first significant part of this proposal. No doubt the Lord Advocate and the Minister have recognised that it is a quotation from the equivalent English provision, which I think is in the Criminal Appeal Act 1968, a copy of which I have somewhere but which has temporarily disappeared. When the appeal is on a question of law alone, leave is not required in England. The Government should explain why we do not have an equivalent provision in relation to Scotland.

Paragraph (b) adds:


    "if the judge of the court of trial grants a certificate that the case is fit for appeal on any ground whatsoever;"

So, again, leave may be obtained on a certificate by the judge of the court of trial. That reflects exactly the statutory provisions in England under the same Act. I should like to see it introduced in Scotland. The trial judge is very much aware of the position and has a good feel for the case, something which the leave judge cannot possibly have. I have mentioned the possibility of an Act of Adjournal because the procedure would need to be regulated by some means. So that is the new subsection (5A). It reflects English practice, and I would submit that these are desirable changes.

Subsection (5B) simply provides that the appellant shall be entitled to be present if the judge or court gives him leave. Again as in England, the appellant should be allowed to be present if the court decides it wants him present. If that can be done in England I do not see why it cannot be done in Scotland.

Subsection (5C) goes a little bit further and envisages the court deciding to order a hearing. It is a point of real substance of which I hope the Government will take notice. It frequently happens that a person will come forward with, say, six grounds of appeal and the leave judge, or the appeal court dealing with the question of leave, may decide that there is substance or possible substance in only one of the grounds of appeal; they are not quite sure, but hesitate to dismiss it as unarguable. They may think that the other four or five grounds have no substance whatsoever. Under this procedure it will be possible, in effect, to determine whether or not there is any substance in the one ground that they think may be arguable. They could take it further and have a hearing on that particular question. I do not know whether the Government intend it, but, under the Bill as it is presently framed, if a person is granted leave to appeal because he has one good ground, he is free to advance another half a dozen bad grounds, even though the trial judge or the leave court have decided that those grounds are bad.

6 Feb 1995 : Column 67

So those are the matters of substance sought to be raised by this subsection. Accordingly, because these matters are important, I beg leave to move this amendment.

Lord Rodger of Earlsferry: My Lords, I am grateful to the noble and learned Lord for raising these particular matters. I cannot answer him in relation to the matter of the English provisions.

Lord McCluskey: My Lords, with your Lordships' leave I have now discovered the Criminal Appeal Act 1968. It is Chapter 19, and, in the version contained in Statutes in Force, the provision simply reads:


    "A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction".

Subsection (2) states:


    "The appeal may be—(a) on any ground which involves a question of law alone".

And paragraph (b) goes on to deal with other matters.

Lord Rodger of Earlsferry: My Lords, the noble and learned Lord will appreciate that I would wish to study the context of that and perhaps respond to him in writing.

It seems to us, without knowing the full context, that a provision which allowed an automatic right of appeal on a matter which involved a question of law alone would give rise, potentially, to, a very wide exception to the provision. One might say, for example, that virtually any question of misdirection could be thought to be a question of law alone. So I think that that is not a matter which we could accept.

On subsections (5A) and (5B) I should not have thought that a certification procedure would have been necessary where, as quite frequently happens, the trial judge indicates that perhaps it is a matter which is doubtful, and so on. I should have thought that that was exactly the kind of situation in which any judge considering whether to grant leave would conclude that there was an arguable ground and, therefore, that he was under a duty to grant leave.

As to the presence of the appellant, I cannot see that that would advance things at all. Subsection (5C) takes us a stage further into the area of oral hearing. We have not tried to set a high test but merely a test of something which is arguable. Where it is arguable—where the judges think there may be need for oral argument—that would suggest that, prima facie, they think there is at least something arguable in it, which again would meet the test without the need for this further round of oral submissions.

I noted with interest the point which the noble and learned Lord made about once one ground gets in then all the other grounds can get in as well. I would wish to reflect upon that matter but, in the light of these observations, I would hope that the noble and learned Lord will withdraw his amendments.


Next Section Back to Table of Contents Lords Hansard Home Page