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Lord Archer of Sandwell: I am most grateful to the noble Baroness for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Reviews]:

[Amendment No. 47 not moved.]

Clause 4 agreed to.

Clause 5 [Appeals]:

Lord Archer of Sandwell had given notice of his intention to move Amendment No. 48.


Page 3, line 36, leave out from beginning to end of line 8 on page 4 and insert—
("(1) Any applicant who is aggrieved by the outcome of a review under section 4 may appeal to the Criminal Injuries Compensation Appeals Panel ("the Panel").
(2) The Panel should consist of adjudicators appointed by the Secretary of State, who shall be barristers or solicitors of at least 5 years standing, and the Secretary of State shall appoint one such adjudicator to be Chairman of the Panel.
(3) Appeals to the Panel shall be determined by a tribunal of three adjudicators.
(3A) Members of the Council on Tribunals shall be entitled to attend all oral hearings.
(3B) The Scheme shall include provision as to the method of appealing, the procedure to be adopted prior to and at the hearing of appeals (including the circumstances under which oral representations are to be made), time limits, the notification of appeals, the giving of reasons for decisions, and for the appointment of staff by the Secretary of State for the purpose of administering the appeal system.").

The noble and learned Lord said: In introducing Amendment No. 46 I indicated that the arguments were substantially similar to those relating to Amendment No. 48. I would only make the point that those relating to Amendment No. 48 are stronger and clearer as regards the appeals system. Amendment No. 48 is therefore a stronger amendment than Amendment No. 46. If that makes any difference to the thinking of the Government, if they see a distinction between the two, I would be happy to debate it. If they do not and if their ears are closed to the arguments, whether they relate to reviews or appeals, there seems little point in taking up the

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Committee's time. I see from the face of the noble and learned Lord opposite that there is no distinction in the mind of the Government between the two. In the circumstances, I shall not move the amendment.

[Amendment No. 48 not moved.]

Lord Ackner moved Amendment No. 49:


Page 3, line 40, at end insert ("and—
(c) for such appeals to be determined only after oral representations by or on behalf of the applicant if the applicant so desires.").

The noble and learned Lord said: This is a short and simple amendment. The noble Baroness, Lady Blatch, in the course of dealing with a number of amendments said that the scheme involves a measure of rough justice. I accept that that is a fair description. There is no need for that rough justice to be rougher than is absolutely essential. It will be rougher than is essential if the applicant for compensation who wants an oral hearing is told he is not to have one because the Executive thinks it can manage to deal with the situation adequately on paper. My point is therefore a brief one. Any appeal procedure in which the applicant seeks an oral hearing should provide the applicant with such a hearing; otherwise there will be many quite unnecessary senses of grievance.

There is a further point. Where one is dealing essentially with a litigant in person, he or she frequently has difficulty in expressing himself clearly and in putting across to the tribunal exactly what the point is. If there is an oral hearing an experienced person should be able to discover whether or not there is a point of significance, and as was so often the case in regard to those of us who had the privilege of sitting with the noble and learned Lord, Lord Denning, in the Court of Appeal, the litigant in person who is listened to sympathetically and understandingly goes away convinced that although he or she has lost, he or she has had an adequate opportunity to put the case in hand, and goes away therefore without a sense of grievance. That is what this amendment is designed to prevent. I beg to move.

Lord Campbell of Alloway: I rise briefly to support the spirit of this amendment. I never had the privilege of sitting with the noble and learned Lord, Lord Denning, but I had the privilege of appearing before him on many occasions and everything that has just been said by the noble and learned Lord is more than fully justified. However, if one looks at the scheme, the question is whether this amendment, which provides for the man to feel that he has had a fair crack of the whip and to be heard, should not be incorporated into the appeals procedure under paragraphs 52 and 53. One has to draw a distinction between the other appeals under paragraph 69. In those other appeals,


    "The appellant, the claims officer appearing on behalf of the authority and the adjudicators may call witnesses to give evidence and may cross examine them".

It is almost inherent in that that the appellant in this type of rehearing should be able to be heard, and that which is implicit should be made plain in paragraph 69. The amendment which the noble and learned Lord, Lord Ackner, proposes is not a rehearing amendment; he draws a fair and perfectly proper distinction between

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what is a kind of rehearing under paragraph 69 and the right of the appellant to be heard and to feel that he has had his say under the other paragraphs. I respectfully suggest that this is not a matter to be dealt with in primary legislation for the reasons I have given. It could be so easily addressed at a later stage of these proceedings in a proposed redraft of the scheme.

Lord Archer of Sandwell: If it is not presumptuous of me I rise simply to express my unqualified support for what has been said by the noble and learned Lord, Lord Ackner. I do not dissent from what has been said by the noble Lord, Lord Campbell of Alloway. It is not a matter on which I would go to the stake either way, but the important thing from our point of view on these Benches is that we wholly support the view of the noble and learned Lord, Lord Ackner.

Lord Rodger of Earlsferry: I assume that the reason the noble and learned Lord, Lord Ackner, has put down the amendment at this place in the Bill is that the effect would be to require such a provision to be in the scheme. Of course if it were in the scheme the noble and learned Lord would be equally happy, so I do not think it matters in which technical way one considers that. I fully understand the thinking behind the amendment. Let me say straight away that we envisage that in the vast majority of cases an oral hearing would be heard by the panel. Nonetheless, as the noble and learned Lord appreciates, his amendment goes much further and would require that in every case where it were required, requested or desired by the applicant, there should be such a hearing. That means that, however unmeritorious a case may be, there would be a requirement for such a hearing.

From his unparalleled experience the noble and learned Lord drew attention to questions which arose when he was sitting, for example, with the noble and learned Lord, Lord Denning, and where party appellants appeared. I accept that there may be such cases. I am certain that when one looks at the criteria contained in the scheme, where it is thought that there is something to be said for an appeal there will be such a hearing. However, one has also to deal with those cases where it is perfectly plain that there is nothing to be said for an appeal and that the case is completely unmeritorious and will remain so.

For example, suppose there was an unqualified admission by an appellant, accepted below and on review—one must remember that such cases would all have been reviewed—that he had provoked the fight in which he had been injured. Suppose that he appealed on the grounds that it was not proper for a reduction to be made on that basis. Self-evidently that appeal could not succeed because it would be completely wrong. Nothing said at a hearing could justify the proposition that the adjudicator was not entitled to make a reduction.

To require that if the appellant says that he desires a hearing there should be a hearing would be to expend a great deal of time and energy on a matter which could not succeed. On the contrary, it might raise hopes on the part of the appellant which could never be fulfilled.

Therefore, although I appreciate that the insistence on a hearing could in some cases have the psychological effect to which the noble and learned Lord drew

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attention, nevertheless that would be too dearly bought. The scheme should provide for a system which deals efficiently and speedily with appeals. Time and resources should be expended on appeals which have a good chance or some chance of success rather than on those appeals which could not in their nature ever succeed.

Although I understand the reason behind the amendment I believe that it goes too far and that what is envisaged here would not work satisfactorily. Rather, we believe that it is correct that the matter should be left to the discretion of the appeals panel. Applying the approach set out in the scheme would mean that there would be oral hearings where that would have a practical effect. However, it would be wrong to give a right to such hearings even in cases where such an appeal could never succeed.

Lord Campbell of Alloway: Before the noble and learned Lord sits down perhaps I may ask him a question. If limited to paragraphs 52 and 53 how does what he said stand up? Under paragraphs 52 and 53, in an appeal against review under paragraph 58 one has to put in a notice of appeal and give one's reasons. In those circumstances, why on earth should not the man be entitled to appear and say something, albeit limited to his written reasons, and to elaborate on those reasons and so feel that he has been heard? This is not a question of a sifting mechanism. The noble and learned Lord seems to think that we are dealing with a sifting mechanism for restrictive trade practices or something of that kind. It is nothing like that. I hope that my noble and learned friend will look at paragraphs 52 and 53 again and give a more positive response on that narrow point.


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