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Lord Goodhart: Before the noble Lord, Lord Kingsland, replies, perhaps I may say that I am a little disappointed that it is not on the face of the Bill that there will be an automatic right of appeal in non-criminal proceedings which involve the liberty of the subject. However, I do not propose to press the amendment further. In saying that, I have regard to the fact that I strongly suspect that any change in the rules, which deprived anybody of existing rights in such a case to make an appeal could well be contrary to the European Convention.

Lord Kingsland: I give the noble and learned Lord at least five out of 10 for his spirited response. I thank him very much indeed for the way he replied. I should like to reflect on what he said and perhaps come back on Report with some renewed amendments which will seek to reflect more accurately the underlying philosophy which he explained so well. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 293 to 295 not moved.]

Clause 38 agreed to.

Clause 39 [Second appeals]:

Lord Phillips of Sudbury moved Amendment No. 295A:


Page 22, line 5, leave out from ("and") to ("no") in line 6 and insert ("if that first appeal is unsuccessful,").

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The noble Lord said: My noble friend Lord Meston has asked that I say a few words in his stead as he was unfortunately taken ill this afternoon. In moving this amendment, I should point out that I shall speak also to Amendment No. 295B. My noble friend's amendment deals with the situation of a second appeal, which is being made by the party who won at first instance. Clause 39, as drawn, makes no distinction between the appellant for whom it is the first appeal and the appellant for whom it is the second appeal; namely, the appellant who won at first instance and wishes to appeal against the success of his opponent in the first appeal and, on the other hand, the party who failed at first instance, failed on appeal and then seeks a second appeal. We believe that there is reason and justice in making a distinction between the two cases. It is for that purpose that Amendment No. 295A proposes to insert the words,


    "if that first appeal is unsuccessful".

Perhaps I may move on to Amendment No. 295B. It is designed to mitigate what we think is perhaps an unnecessary rigor in requiring as the alternative test to be satisfied, if there is to be a second appeal, the requirement that some "special reason" should be relevant to the case. We believe that it would be adequate if the test were that "there is sufficient reason". It is simply a question of finding a fair balance between the need, on the one hand, to control second appeals and, on the other, not to be too harsh in allowing that prospect. I beg to move.

Lord Clinton-Davis: When I observed the term "special reason", my mind went right back to special reasons in relation to suspensions of licences or disqualifications in driving cases. There is a risk that a new body of jurisprudence could be collected around this term. I am not totally convinced that the word "sufficient" is right, but I invite my noble and learned friend to give consideration to a suitable substitute for "special reason". I really do have some anxiety about that term.

That was the point I was proposing to make in debating the Question of whether Clause 39 should stand part of the Bill. Therefore, provided that my noble and learned friend is as flexible as he has shown himself to be throughout most of our proceedings on the Bill--leaving aside some of my amendments which he has rejected and where he has shown a degree of inflexibility--I do not think that I need to revisit such matters at this point. Nevertheless, I await with interest to hear what either of my noble and learned friends have to say in response.

Lord Kingsland: I am speaking to Amendment No. 296, which is included in this group. My amendment would enable the Court of Appeal to be the final arbiter as to whether an appeal in a particular case should exceptionally be permitted to lie to more than one level of court. Clause 39 would limit appeals to one bite of the cherry only, unless the case fell in on the exceptions outlined in either paragraph (a) or (b); that is to say, either the appeal would raise an important point of principle or practice, or there is some other special reason for the appeal to be made. This would mean that generally, even where leave to appeal is granted, an appeal from a district judge would only be heard by a circuit judge and an appeal from a High Court master would lie only to a High Court

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judge. In both cases there would be no second appeal to the High Court in the first instance or to the Court of Appeal in the second instance.

While in many cases one level of appeal is certainly sufficient, the most appropriate judge to hear that appeal may not always be the next, most senior, in the system. That will particularly be the case following the introduction of the civil justice reforms this spring, because the district judges in the county courts will be responsible for the case management and trials of the lower value claims to be allocated under the new fast track. Circuit judges are likely to have limited experience of the day-to-day operation of the very new civil procedure rules. Therefore restricting a party's right of appeal to a district judge's decision--perhaps on such a vital matter as to whether the claim might be struck out to a circuit judge, who may be primarily a criminal law specialist--and preventing any further appeal either to the High Court or the Court of Appeal could lead to substantial injustice.

One of the important tasks of the Court of Appeal is to take an overview of the justice system and to decide test cases and other cases which clarify or expand the law. It is the Court of Appeal therefore that is best placed to take decisions on key issues arising from the implementation of the civil justice reforms. Therefore parties should have the right to invite the Court of Appeal to decide whether their case should be restricted to only one level of appeal, and which court should hear that appeal.

10.45 p.m.

Lord Woolf: The statements which have been made by Members of the Committee with regard to Clause 39 are ones with which I have considerable sympathy and understanding. Indeed with regard to the use of the word "special" I must, on behalf of the Bowman Committee, of which I was a member, plead guilty because we recommended that the word "special" should be inserted.

I am afraid it may be too long a time since I myself had the responsibility of urging special reasons before a magistrates' court. But the word "exceptional" appeared in a recent Act of Parliament, the Crime (Sentences) Act 1997, which provided that in certain circumstances an individual could be subjected to life sentences unless there were exceptional circumstances. At the end of last year the noble and learned Lord the Lord Chief Justice had to deal with that phrase. The fears that have been expressed tonight were certainly confirmed by the judgment in that case. It is interesting to note that the noble and learned Lord the Lord Chief Justice used the word "special" in substitution for "exceptional" in describing, as far as he could, what was meant by "exceptional". That seems to me to underline the danger referred to.

It is always difficult to decide what is the appropriate reason. The Court of Appeal judges have given some consideration to this matter and what we would offer to the Committee as a suitable substitute is the word "compelling". With regard to the whole purpose of the second appeal provision in Clause 39, the position at

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present is that if a case is decided by a district judge, one has two rights of appeal. One has first of all a right of appeal to a Court of Appeal judge, which is a rehearing--the whole case is tried over again in other words--and then one can go to the Court of Appeal.

The reason for Clause 39 is to limit the cases which can come to the Court of Appeal to the ones which my noble friend Lord Kingsland had in mind--to which he referred--that is, ones where the Court of Appeal could exercise its function of first of all dealing with important points of principle and practice and also acting as a safety valve so as to ensure that no compelling injustice, as I would say, was done. I hope that in considering whether to accept the proposed amendments, the noble and learned Lord the Lord Chancellor will take into account those considerations.

Lord Falconer of Thoroton: Clause 39 enshrines the principle put forward by Sir Jeffery Bowman's review team: that, broadly, there should be only one level of appeal. It also enshrines the principle outlined in the Bowman Review that there should be some exceptions to that. It encapsulates the exceptions as being: unless the appeal would raise an important point of principle or practice; or, that there is some other special reason for the appeal to be made.

These three amendments seek to amend the circumstances in which there may be a second appeal. The first, tabled by the noble Lord, Lord Meston, but argued very effectively by the noble Lord, Lord Phillips, suggests that a matter should only be limited to one level of appeal where the first appeal upholds the decision of the court of first instance. The effect of the amendment would be that if it overturned the decision of the first court, the matter would be free from the restriction of one appeal only.

With great respect, we are not attracted to that suggestion. We do not believe that our justice system should be predicated on the assumption that the decisions of the lower courts are wrong. When an application for permission to appeal is granted, the assumption should be that the Appeal Court has rightly confirmed or corrected the decision of the first instance court. Where a flawed decision at first instance is clearly put right on appeal, a further appeal would not be appropriate. Therefore, an overturned decision should not in itself provide a statutory exemption to the principle of one level of appeal. I accept that provision needs to be made for those cases where, for example, it would appear that an appeal court has reached an incorrect decision.

The second suggested amendment, Amendment No. 295B, deals with the word "special". It is proposed that the word "special" in sub-paragraph (b) should be replaced with the word "sufficient". The noble and learned Lord, Lord Woolf, has indicated that he also has concerns over the use of the word "special". He suggests that we use the word "compelling".

At the present time, the Lord Chancellor is attracted to the substitution of the word "special" with the word "compelling". He considers that it provides an appropriate indication of the circumstances in which

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there should be a further appeal. It would ensure that, where the individual circumstances of a case merit the consideration of the Court of Appeal in the way described, it will be possible for it to proceed further, regardless of whether the Appeal Court has overturned or upheld the first instance decision. In my view, that addresses the concerns reflected in Amendment No. 295A.

The effect of Amendment No. 296 is to provide that, where a party wishes to appeal a case that has already been through one appeal, he is able to apply to the Court of Appeal for that court to decide whether or not the appeal would raise an important point of principle or practice, or whether there is some other special reason for the appeal to be made.

It has always been my intention that, where a party seeks permission for a second appeal, the application should be made to the Court of Appeal. I intended that that should be provided for by use of the rule-making power set out in Clause 38(3)(b). The Lord Chancellor is, however, prepared to consider whether there might be a case for specifying that in primary legislation.

In conclusion, I urge the Committee to resist Amendment No. 295A, moved by the noble Lord, Lord Phillips. However, if the noble Lord is willing to withdraw Amendment No. 295B, the Lord Chancellor will undertake to return to him on this point when we report back to the House. Similarly, if the noble Lord, Lord Kingsland, is willing to withdraw his amendment, the Lord Chancellor will consider whether he can put forward an amendment which will achieve its aim. On that optimistic note, I ask the noble Lord to withdraw the amendment.


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