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Lord McIntosh of Haringey: I am afraid that I am not persuaded. The Minister suggests that with these amendments we are proposing that some cases may be more unsafe than others. We are indeed doing just that, because there is not just one course of action that the Court of Appeal may take. There are two courses of action. One would be to quash the conviction; the other would be to order a retrial. Therefore, the possibility of a lower test, which is provided by the phrase "or may be unsafe", is a proper reflection of the actual powers available to the Court of Appeal. It is entirely proper that the law should reflect those two degrees of—there is not a word for "unsafeness" but that is what I mean to say—because the action which the Court of Appeal may take as a result will reflect that.

The Minister then said that almost any case on conviction may in a sense be unsafe. I suppose that in one interpretation of the English language that could be the case. She then went on to applaud the words of the Lord Chief Justice, who said that "is unsafe" is the same as "may be unsafe". The two cannot be combined. One cannot hold both views at the same time. What is provided, as was provided in the Royal Commission report, is a lower test in the phrase "or may be unsafe". It reflects the powers of the Court of Appeal. It properly represents the views which have been expressed by the Court of Appeal in recent months, when the Court of Appeal has been taking a more generous interpretation of cases of this kind. I believe it is important that this House should accurately reflect the current state of mind of the Court of Appeal when it is indeed to be approved of, as I think it is here, and should ensure that the law reflects the recommendations of the Royal Commission on Criminal Justice. Under those circumstances, I am not prepared to withdraw the amendment. I wish to seek the opinion of the Committee.

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5.38 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 109.

Division No. 1

CONTENTS

Ashley of Stoke, L.
Beaumont of Whitley, L.
Blackstone, B.
Broadbridge, L.
Callaghan of Cardiff, L.
Carter, L.
Cocks of Hartcliffe, L.
David, B.
Desai, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elis-Thomas, L.
Foot, L.
Gallacher, L.
Geraint, L.
Gladwin of Clee, L.
Graham of Edmonton, L. [Teller.]
Hilton of Eggardon, B.
Houghton of Sowerby, L.
Howie of Troon, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Putney, L.
Judd, L.
Kilbracken, L.
Lester of Herne Hill, L.
Longford, E.
Lovell-Davis, L.
McIntosh of Haringey, L.
Mallalieu, B.
Masham of Ilton, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Monkswell, L.
Monson, L.
Morris of Castle Morris, L. [Teller.]
Peston, L.
Redesdale, L.
Richard, L.
Seear, B.
Serota, B.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Gryfe, L.
Turner of Camden, B.
White, B.
Williams of Crosby, B.
Williams of Elvel, L.

NOT-CONTENTS

Abinger, L.
Addison, V.
Aldington, L.
Alexander of Tunis, E.
Annaly, L.
Archer of Weston-Super- Mare, L.
Arran, E.
Astor, V.
Balfour, E.
Bauer, L.
Biddulph, L.
Blatch, B.
Blyth, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Brougham and Vaux, L.
Burnham, L.
Butterfield, L.
Butterworth, L.
Cadman, L.
Caithness, E.
Campbell of Alloway, L.
Carnock, L.
Chalker of Wallasey, B.
Chelmsford, V.
Chesham, L.
Clanwilliam, E.
Coleridge, L.
Craigavon, V.
Cranborne, V. [Lord Privy Seal.]
Cumberlege, B.
Denham, L.
Denton of Wakefield, B.
Dilhorne, V.
Dixon-Smith, L.
Downshire, M.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Finsberg, L.
Flather, B.
Gisborough, L.
Goschen, V.
Halsbury, E.
Harlech, L.
Harrowby, E.
Hayhoe, L.
Hemphill, L.
Henley, L.
HolmPatrick, L.
Hooper, B.
Howe, E.
Huntly, M.
Hylton-Foster, B.
Inglewood, L. [Teller.]
Jenkin of Roding, L.
Kinnoull, E.
Lauderdale, E.
Leigh, L.
Lindsay, E.
Long, V.
Lucas, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Monteagle of Brandon, L.
Mottistone, L.
Moyne, L.
Munster, E.
Nelson, E.
Newall, L.
Onslow, E.
Orkney, E.
Orr-Ewing, L.
Oxfuird, V.
Park of Monmouth, B.
Pearson of Rannoch, L.
Pender, L.
Prentice, L.
Rawlings, B.
Renton, L.
Renwick, L.
Rodger of Earlsferry, L.
Romney, E.
St. Davids, V.
Saltoun of Abernethy, Ly.
Scarman, L.
Seccombe, B.
Shrewsbury, E.
Simon of Glaisdale, L.
Skelmersdale, L.
Stewartby, L.
Strange, B.
Strathclyde, L. [Teller.]
Strathmore and Kinghorne, E.
Sudeley, L.
Swansea, L.
Swinfen, L.
Trumpington, B.
Ullswater, V.
Wharton, B.
Whitelaw, V.
Wilberforce, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

8 Jun 1995 : Column 1496

5.46 p.m.

[Amendments Nos. 4 to 9 not moved.]

Clause 2 agreed to.

Clauses 3 and 4 agreed to.

Lord Scarman moved Amendment No. 10:


After Clause 4, insert the following new clause:

("Power to quash unsafe conviction on hearing new evidence

.Where in any appeal the Court of Appeal receives fresh evidence which is admissible and which the Court considers to be capable of belief, and which if believed would render the conviction unsafe, the Court, if it be impracticable to order a new trial, shall allow the appeal and quash the conviction.").

The noble and learned Lord said: The new clause which I am proposing in this amendment is designed to achieve a principled answer to an awkward problem. The problem arises in those appeals where the Court of Appeal receives admissible evidence which it considers capable of belief. In such appeals one would expect the Court of Appeal either to allow the appeal or to order a retrial. But, if a retrial is impracticable or undesirable, should the Court of Appeal be able to decide the question of fact against the appellant and dismiss the appeal? My submission, which I shall argue, is no; hence the amendment introducing this new clause to that effect.

It is an awkward problem and it is discussed extremely well in the Royal Commission's report, Chapter 10, paragraphs 62 and 63. I agree with every word of paragraph 62 but, sadly, as I see it, the commission, in paragraph 63, yields the ground of principle and settles for what it calls, "the sensible alternative" of the Court of Appeal deciding the new question of fact for itself. The court can therefore, if I may borrow a phrase from the report,


    "usurp the function of the jury and dismiss the appeal".

Is there any risk in that? That is a very reasonable question. I regret to say that the record shows that there are real risks. I cite only one instance today of where the Court of Appeal received fresh evidence. It was fresh evidence that we would now say was capable of belief. The Court of Appeal took immense trouble to listen to the new evidence. It refused to order a new trial. It reached a

8 Jun 1995 : Column 1497

decision, and the Guildford Four lost their appeal. Events have shown that the Court of Appeal reached the wrong decision on the facts when it took that line, and the four accused spent another 15 years in gaol before they were vindicated. I cite that illustration because it shows the great danger of the Court of Appeal venturing into the field of judging evidence, so to speak at first instance, because that evidence, which was adduced before the Court of Appeal in the Guildford Four case, was never seen or heard by the jury in the trial of the Guildford Four.

So there are risks in allowing the Court of Appeal either to refuse a retrial or to feel that one should not be granted and then to go on to consider new facts not considered by the original jury and to reach a decision against the appellant and dismiss the appeal.

I am not the only one to be troubled by this problem and this situation. Lord Devlin, unfortunately no longer with us, was horrified by the law that had developed, and was associated with a well-known House of Lords case, Stafford v. DPP. He was horrified by what he regarded as the lack of principle and the desertion—the impeachment, if you like—of trial by jury as our principle for dealing with indictable cases; by the impeachment that arose when the Court of Appeal took that line by not ordering a retrial but itself entering the lists as the judge of fact.

Having said that, it is fair, I think, to ask me: what do you say are the principles which are offended by that course of action on the part of the Court of Appeal which is at the moment authorised by law—and by laws stated by this House in its judicial capacity? I shall endeavour to tell the Committee what I see to be the principles. I ask myself: what are they? First, the verdict and the conviction founded on it must be unsafe if the new evidence is capable of belief. That verdict (and the conviction founded on it in the trial when the new evidence was neither seen nor heard) is unsafe because it was founded on only part of the evidence, and the jury had no cognisance of the new evidence. Therefore, when deciding the question of fact against the appellant, the Court of Appeal does not make that original verdict safe. It remains an unsafe verdict unless and until there is a jury's verdict based on all the evidence. One can achieve that by a retrial. If there is no retrial, it cannot be achieved. So, what do we end up with under that procedure? We end up with a conviction based on an unsafe verdict which goes to only part of the evidence, and a finding of fact by the Court of Appeal never seen or heard by the original jury. Guilt has therefore been established under that procedure not by a jury, but by an appellate court. That is the first lack of principle in the present law.

Secondly, by itself deciding the new question of fact—that is, the decision on the facts not known to the original jury—the Court of Appeal—and this is perhaps not always understood—inevitably reverses in the case the burden of proof. Why do I say that? In an appeal against a conviction, the appellant goes first and puts his case. The Crown, the prosecutor, responds. When new facts are considered by the court and a ruling is made upon them by the court, the defendant appellant has to prove his case on the new facts. He now goes first. The Crown answers. He no doubt has a reply, but he has to make the going. Where has the presumption of innocence gone? Where, indeed, do we find the accused? He is attempting to

8 Jun 1995 : Column 1498

establish a defence whereas if he was in the court of first instance, the evidence would be led by the Crown and he would have a presumption of innocence, with the burden of proof resting steadily on the Crown. It is a strange position which arises from a confusion about the appellate process and the trial process when the Court of Appeal takes that line in regard to new evidence and dismisses the appeal.

In the process of the law, confusion and injustice are likely to arise unless it is made absolutely clear that in fresh evidence cases, if it be impracticable or undesirable to order a new trial, the Court of Appeal's duty is to allow the appeal and quash the conviction. Hence my proposed amendment.

I put shortly, and perhaps not as clearly as I should like, the real trouble. We are in very strange waters, and it is important that appeal courts should devote themselves to appeals. Courts of first instance, and certainly a trial by jury—which is of course the right of those facing indictment—are where the facts have to be established, either at first or later. If the Court of Appeal finds itself in a position in which it cannot order a retrial and has the finding of fact, it has to allow the appeal. That is what I suggest. I am extremely disturbed at the consequences of not keeping separate the role of the trial with judge and jury and the role of the Court of Appeal, which is review.

I have one final little observation. In a strange way, when the Court of Appeal dismisses an appeal on new evidence not seen by the judge and jury, it is at the same time denying the appellate stage in the Court of Appeal to the accused, because if it does that there is no Court of Appeal other than the House of Lords to which the defendant can take his case. He has on that issue lost his right to an appeal in the Court of Appeal because the Court of Appeal has acted as judge of fact.

These are serious matters. They are awkward matters. The amendment would get us out of trouble if cases have to be further considered. At the moment it is extremely dangerous to allow the Court of Appeal to make a decision dismissing an appeal on new facts, the evidence of which became available or became known only at the appellate stage. I beg to move.

6 p.m.

Lord McIntosh of Haringey: I listened with a great deal of attention and concern to what the noble and learned Lord had to say. He raises, as he says, difficult matters. They are difficult not just because of the relationship to which he referred between the Court of Appeal and the courts of first instance but because of the relationship between the Court of Appeal and the Criminal Cases Review Commission. His amendment says, "Where in any appeal". That could be an appeal which comes direct to the Court of Appeal, without reference to the commission, or it could be an appeal which has been referred by the Court of Appeal to the commission for investigation. Therefore, the fresh evidence to which the noble and learned Lord refers in the amendment could be evidence which has been examined in an investigation by the commission.

The noble and learned Lord then describes three requirements for the conclusions to which he comes in the amendment: it should be fresh evidence which is

8 Jun 1995 : Column 1499

admissible; it should be fresh evidence which the court considers capable of belief—the new formulation which has been introduced by Clause 4, which has just been agreed to—and, finally, it has to be evidence which it is believed would render the conviction unsafe.

The noble and learned Lord quotes perhaps the most disturbing evidence of all—the example of the Guildford Four who spent 15 years in prison after the Court of Appeal considered their case, received fresh evidence, did not indicate that the fresh evidence was worthy of belief, or whatever was the phrase under the 1968 Act, and did not indicate whether or not it believed it would have rendered the conviction unsafe but, nevertheless, dismissed the appeal. I am certain that he is right that we must provide in the legislation against such a miscarriage of justice ever happening again.

I am convinced that, whether or not the noble and learned Lord's formulation is correct—I shall listen with great care to what the Minister has to say on the matter—he has made an important point which deserves and needs to be answered if the Bill is to perform perhaps its single most important task: the reduction of such miscarriages of justice, because nothing can eliminate them.


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