New Clause. — (Service of copy of indictment.)

Orders of the Day — Criminal Justice Bill – in the House of Commons at 12:00 am on 15th April 1948.

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No person shall be tried upon indictment unless seven days at least before the trial there has been served upon him personally or upon his solicitors a copy of the indictment upon which he is to be arraigned or unless he waives his right to have a copy of such indictment so served. Provided that the said period of seven days may be reduced to a shorter period if the person to be tried consents to such reduction.—[Mr. Manningham-Buller.]

Brought up, and read the First time.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

I beg to move, "That the Clause be read a Second time."

I hope the right hon. Gentleman will be able to accept this Clause, which meets a very real need. In Committee he undertook to consider a new Clause on these lines before the Report stage. I am sorry not to have seen one in his name upon the Order Paper. I hope that that fact will not prevent him accepting the new Clause which I am proposing. The argument for it may be put quite shortly, and I hope it will have the support of all hon. Members who have practical experience of the administration of our criminal courts.

The Attorney-General will probably Agree that he has had the experience which I have had of defending an accused person, of being briefed, and knowing what the charges are according to the brief, and then being suddenly faced with an indictment read out and having to meet additional charges of a new character, charges added by the prosecution at the last moment, giving no opportunity to the defence to consider what course of action should be taken. That can be done under the present law, and is done. I think it is wrong that an accused person who is standing his trial at quarter sessions or assizes should not know, before the trial starts, exactly what charges he will have to face, or that his advisers should not know exactly what charges will have to be faced so that they may give the accused the best possible advice on the course he should pursue. Those of us who have conducted cases for the defence in criminal courts have experienced the difficulties connected with the sudden addition of charges to an indictment.

5.0 p.m.

We suggest in this Clause that a copy of the indictment should be served personally on the accused, or upon his solicitors, at least seven days before the trial commences. I am not particularly attached to the seven days. If the Minister says he would prefer five, six, 10 or 14 days it is immaterial to me, but I suggest that the accused ought to have at least five days' notice. That, I think, should be the minimum. It may be said, "Sometimes a man is committed by the committing magistrates for trial just before the assizes or quarter sessions are due to open, and if he is to be tried there time will not permit of giving seven days' notice." That is an argument which, from an administrative point of view, must be considered. We do not want a man to miss that assize or quarter sessions and have to be taken to another part of the country at considerable expense and inconvenience, or have his case postponed to a subsequent assize or quarter sessions.

We have provided that the seven days' notice can be waived by the accused. Normally, it would be to the advantage of the accused to waive it if it meant his swifter trial, and he would not waive it except where the addition of further charges would put him in a difficulty. If the charges on which he had been committed were the same as those contained in the indictment, I believe that every accused person would be right to waive the fulfilment of the seven days' notice, so as to secure a swifter trial on the indictment against him. This Clause further provides that the accused may agree to a shorter period than seven days in appropriate cases. These qualifications upon the original period of seven days would facilitate the trial of a case where a man had been committed only a short time before the assizes or quarter sessions. At the same time the Clause provides for proper notice of what is contained in the indictment and I hope the right hon. Gentleman will accept it because I believe it will add considerably to the better administration of our criminal law.

Photo of Mr Conolly Gage Mr Conolly Gage , Belfast South

I beg to second the Motion.

From such short experience as I have of this House, I am not unduly optimistic about anything, but I had hoped, following what the Home Secretary said in Standing Committee, that he would put down a new Clause on this point himself. I am disappointed to see that the right hon. Gentleman has not put down a new Clause which would embody the principles contained in the Clause we are now discussing. I am not wedded to the period of seven days; I think it could quite properly be shortened to five or four days. We are all familiar with cases where, quite often, the first time the accused person has known of a new count in the indictment has been when it has been read aloud in court by the clerk of assize. That is quite wrong, because there are all kinds of defences that can be founded on the way in which an indictment is drawn.

I remember an experience which I had—not an unusual experience, indeed, a typical experience. In a case in which I was prosecuting, for a fairly serious offence, I was given the indictment on arrival at court and I thought it wrongly drawn. I thought that the defence might object to it, so I did what everybody in my position would have done. I asked the clerk if the other side had seen it and he said, "No." The clerk seemed amazed that anyone should have seen the indictment before the trial. I said it must be altered, and the indictment was handed back to the clerk with the ink still wet upon it. I am glad to say that my opponent did not know how near his client had been to escaping completely the consequences of what he had done. I am seeking to prevent that kind of thing from happening. I know that this Clause will cause a good deal of administrative inconvenience to people like clerks of the peace, but I do not think that is a reason we should not accept it. I know that at the County of London Sessions there will be great administrative difficulty, but at the same time I believe that the duty to the accused is much more important.

Photo of Mr James Ede Mr James Ede , South Shields

I listened to the discussion on this matter in Standing Committee, when I gave an undertaking that I would try to frame a new Clause for this stage. I have diligently carried out the promise I then gave, but I have been confronted with certain practical difficulties in the way of drafting a new Clause which would be enforceable. This new Clause would impose on the clerk of assize or clerk of peace the duty of serving on the accused, or his legal representative, a copy of the indictment. This is the practical difficulty: if a man has been committed for trial there is no trouble in finding him. The indictment can be served on him in prison, or maybe his legal representatives can be ascertained through the prison machinery, and they can receive a copy of the indictment. However, there are, of course, a number of people who will appear on an indictment at quarter sessions or the assizes but are not committed to prison and whose addresses can be obtained only from the clerk of the summary court, and if he failed to send along the address, it might very well be that the clerk of assize or the clerk of the peace might find that he had committed a breach of this requirement. This is a practical difficulty which I would like to get over. Another difficulty is the period of seven days. It may be that even where the address is known, the accused person may not be at that address on the day which would enable the clerk to comply with the requirements of this Clause. I therefore suggest that there are very serious practical difficulties in the way.

I am advised that under Rule 13 of the Rules made under the Indictments Act, 1915, it is the duty of the clerk of assize, after a bill of indictment has been preferred and signed, to supply to the accused person, on request, a copy of the indictment free of charge. What I would like to do would be to get in touch with representative clerks of assize and clerks of the peace and see whether some method could be devised so that there would be provision whereby the indictment would be available on demand a certain number of days, in normal cases, before the opening of the assizes or quarter sessions.

That would meet the practical point and would avoid imposing this duty, which I suggest might in certain cases be almost impossible for the officers of the court to fulfil: it would enable the indictment to be known to the accused person in sufficient time for him to prepare his defence and he would not, therefore, have an indictment sprung on him at the court and find in it certain things which he did not imagine would be in the charge to be preferred against him. It might not be possible to have as long a period as seven days, but both hon. Gentlemen have intimated that they would be prepared to accept a lesser period if this could be made workable. I hope they will feel that the difficulties which I have encountered are really practical difficulties in the way of imposing a duty on the court in the exact terms of the words they have used. I will energetically pursue these consultations with the clerks I have mentioned, in the hope that I may be able to do something practical.

My right hon. and learned Friend the Attorney-General reminds me that I used an unfortunate collection of words. I should not have said, "a certain number of days before the opening of the assizes." I should have said, "before the trial." Some assizes and, as we have been reminded this afternoon, even some quarter sessions, now last a considerable number of days, and the phrase I originally used might have imposed a quite impossible burden on the clerks. I hope that the hon. and learned Member for Daventry (Mr. Manningham-Buller) will feel that I have endeavoured to carry out the spirit of what I said in Committee. I am really concerned about this matter. I do desire that an accused person shall have every opportunity of knowing the charges he has to meet, and of knowing them in sufficient time to be able to have his defence properly prepared.

5.15 p.m.

There will, of course, be the case of the prisoner who is committed late, and no matter what number of days we put in, it may not always be possible for him to be informed within the prescribed limits. Generally speaking, it is to his advantage to have a speedy trial, but if he regards this point as important and elects to stand over to the next sessions or assizes, he should be able to make the choice. I hope the House will feel that I have endeavoured to meet the point behind this Clause. Between now and the consideration of the Bill in another place I will try to meet it.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester West

The House will agree that my right hon. Friend the Home Secretary appreciates the importance of the point involved in this Clause, but, on the other hand, I think the difficulties which he presented against the Clause are not quite as serious as he has been advised. There are methods by which intimation can be given to the person concerned in very many cases. There is no reason why notice or the document should not be sent by registered post to the last known address of the individual in the same way as it is done in many police court and sessional court matters. In a case where a solicitor has already been briefed, there is no reason why the particulars should not be sent to him.

I should like my right hon. Friend to realise that those who have had experience of these matters, including himself, find that in many instances the person is confronted with a circumstance with which it is a practical impossibility for him to deal on the spur of the moment or within a day or two. That being so, the statement that he will have available the indictment is not in itself sufficient. Many accused people would not be aware of the fact that the indictment was available, and the case might proceed without any possibility at all of a defence being put up. In those circumstances, I ask my right hon. Friend to try to devise some method by which his original undertaking might be put into more practical effect than by the suggestion he has offered, in order that a person who is to defend himself or is to be defended shall be in a position to understand what the actual indictment or indictments against him are.

Photo of Mr Selwyn Lloyd Mr Selwyn Lloyd , Wirral

I would like briefly to reinforce the appeal which has been made to the right hon. Gentleman. I think the practical difficulties are surmountable. I have risen to ask the right hon. Gentleman not to be too much impressed by representations which he may receive from clerks of the peace and clerks of assize because—I say this at my peril—I think there is in this department a good deal of conservatism. The right hon. Gentleman should not be too overcome by representations to the contrary which he may receive. I am perfectly certain that in many cases there is substantial detriment to the administration of true justice in the fact that the accused does not know the actual charge against him.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

This seems to be a rather pleasant lawyers' afternoon tea party and I apologise most sincerely for joining in. I have listened to this Debate with very great interest and I listened with particular interest to the sympathetic point of view of the Home Secretary. If someone is to be tried and he does not know until the last minute what will be brought against him, it must put him to very great difficulty. It is all very well for high legal authorities to say that they sympathise with this person or that. We all sympathise, but looking at it from the point of view of giving the ordinary individual a fair deal, it is right that before he comes before these courts he should have fair notice of what will be brought up against him. It is astonishing to me that if someone came before the courts the officers in charge would not know his address sufficiently well to make contact with him on his indictment. It must be possible to overcome that, with the ingenuity which the Home Office have at their call at present. To sum up, my two points are—first, the address, and secondly, that all of us want the individual to know what is brought against him. May I emphasise once again—because it always gives me pleasure to say nice things rather than the reverse—how glad I was to see the Home Secretary in one of his kindly moods today?

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

With the leave of the House, I will make one or two observations on what the right hon. Gentleman indicated were his difficulties in accepting this Clause. He said, first, that there would be difficulty in many cases—not in every case—in serving a copy of the indictment on the accused person or upon his solicitors or, indeed, in knowing who were his solicitors. One appreciates that, but in the majority of cases that difficulty would not arise. What would happen in the cases where the difficulty arose would be that when a man surrendered to his bail he would then get a copy of the indictment, he would be told the reason it had not been served upon him before, and he would then be faced with the alternative either of having to insist on his right of notice of trial—which might mean that he would go to the end of the calendar of the assizes or the bottom of the list at the quarter sessions, or go on to another assize or another quarter session—or he would waive that right. If he waived that right, there is no consequence so far as the administration of justice is concerned; there is no delay. If he did not waive that right, presumably he would not waive it for the simple reason that the presence of this additional count really made no material difference. I ask the right hon. Gentleman to think that over again, because it does not seem to me that the failure on the part of the clerks to serve a copy of the indictment would have any prejudicial effect.

Secondly, he referred to Rule 13, which deals with the supply of a copy of the indictment. That rule is largely a dead letter. Very often under the present organisation the indictment is not complete until a short period before the trial is due to commence. I suggest another possible way of dealing with it, because we are all trying to find a way in which this point can be dealt with. It is this: additional evidence cannot be adduced at the trial unless, after the man has been committed, after the depositions are completed, he is given notice of that additional evidence. It might be possible to provide that where a prosecution wanted to add a count to the indictment—something in addition to the charges on which the man had been committed—they should not be allowed to do that unless they had given notice to the accused in the same way as one gives notice of additional evidence. There is no period on additional evidence at the present time. I am not sure that would operate, but I mention it in the hope that the right hon. Gentleman will consider it.

Photo of Mr James Ede Mr James Ede , South Shields

By the leave of the House, I would like to say that I have listened to the various suggestions made, and they will all be taken into consideration. In regard to the remarks of my hon. Friend the Member for West Leicester (Mr. Janner), I will say that I would endeavour to supply a copy of the indictment but I cannot undertake to supply understanding at the same time; that clearly must be for members of the legal profession to supply to their clients when they get the indictment. With regard to the remarks of the hon. and learned Member for Wirral (Mr. Selwyn Lloyd), I have been associated with clerks of the peace for over 40 years, and I can assure him that I intend in these matters to apply to those who are helpful, who are public spirited—and I believe they are the great majority—and who desire to see the system of justice administered in their courts as perfect as possible, and who would desire to co-operate in the spirit shown in this House this afternoon. I will earnestly endeavour to do something in this matter in another place.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

In view of what the right hon. Gentleman has said, I beg to ask leave to withdraw the Motion.

Motion and Clause, by leave, withdrawn.