New Clause. — (Payment of costs of defence on acquittal, etc.)

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

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(1) If in any such proceedings as are mentioned in section one of the Costs in Criminal Cases Act, 1908, the accused is acquitted or discharged under section twenty-five of the Indictable Offences Act, 1848, or the information is dismissed, the court may, if it thinks fit, direct the payment out of local funds in accordance with the provisions of that Act of such sums as appear to the court reasonably sufficient to compensate the accused for the expenses properly incurred by him in carrying on his defence.

(2) Without prejudice to the provisions of subsection (2) of section thirteen of the Criminal Appeal Act, 1907, where an appeal to the Court of Criminal Appeal against a conviction is allowed, the court may, if it thinks fit, direct the payment out of local funds in accordance with the provisions of the Costs in Criminal Cases Act, 1908, of such sums as appear to the court reasonably sufficient to compensate the appellant for any expenses properly incurred in the prosecution of his appeal (including any proceedings preliminary or incidental thereto) or in carrying on his defence.

(3) Where an appeal to the House of Lords brought under subsection (6) of section one of the Criminal Appeal Act, 1907, is determined in favour of the defendant, the House of Lords may, if they think fit, direct the payment out of local funds in accordance with the provisions of the Costs in Criminal Cases Act, 1908, of such sums as appear to them reasonably sufficient to compensate the defendant for any expenses properly incurred by him in the appeal to the House of Lords or in the prosecution of his appeal to the Court of Criminal Appeal or in carrying on his defence.

(4) In relation to a person tried before a court of assize or quarter sessions, references in this section to the carrying on of his defence shall be construed as references to the carrying on of his defence before that court, before the examining justices by whom he was committed for trial, and before any other court of assize or quarter sessions before which proceedings for the offence in respect of which he was committed were begun but not concluded.

(5) The amount of any costs directed to be paid to any person under subsection (1) or subsection (2) of this section shall be ascertained as soon as practicable by the proper officer of the court by which the direction is given; and where the direction is given by the Court of Criminal Appeal, the proper officer shall make out and deliver to the said person, or to any person who appears to the proper officer to be acting on behalf of that person, an order on the treasurer of the county or borough out of the funds of which the costs are payable under the Costs in Criminal Cases Act, 1908, for the payment of that amount.

(6) The amount of any costs directed to be paid under subsection (3) of this section shall be ascertained, and an order on the treasurer of the county or borough aforesaid may be made for the payment of any amount so ascertained, by such officer or officers, and in such manner, as may be prescribed by order of the House of Lords.

(7) This section shall be construed as one with the Costs in Criminal Cases Act, 1908.—[The Attorney-General.]

Brought up, and read the First time.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

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

This is a not unimportant new Clause which will extend to courts of quarter session and assize the discretion, which is already possessed by courts of summary jurisdiction, to award costs to a defendant who is successful. It has been sometimes a serious defect in our administration of justice that, although a defendant might be put perhaps to very great expense in defending himself in the course of indictable proceedings in the criminal courts, there were no circumstances in which those courts before which indictments are tried could award him costs.

I am not by any means saying that costs should automatically be awarded in every case to a successful defendant. In the majority of cases, whilst one rejoices with the defendant at his acquittal, it would be wrong to impose on the community the burden of paying the costs of the defence. But where the case is one in which there are exceptional circumstances—which, for instance, the court considers perhaps ought never to have been brought, where the proceedings have been unusually protracted, or where the prosecution has been a private one—it seems right that courts before which cases are tried on indictment should have the same powers as are already possessed by the justices of ordering costs at their discretion. This new Clause will have that effect.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester West

I am very much obliged to my right hon. and learned Friend for having framed this new Clause. It is a consequence of a Clause which I put down during Committee stage, as a result of which he gave an undertaking to deal with the matter. I am a little sorry that in presenting this Clause to the Committee my right hon. and learned Friend saw fit to suggest that it ought not to be used too often by the courts. I hope that he will have a change of heart in regard to that, and perhaps when we reach a later stage he will suggest to the courts that they should be very generous in this regard. It will be difficult for a person who is acquitted, if costs are not awarded to him, to hold up his head in society, because a distinction may be made between the person who has been awarded costs when acquitted and the person who has not. I think that is rather serious. I hope that the courts will interpret this new Clause generously and that a person who has been acquitted will, except in very exceptional circumstances, be entitled to have repaid to him at least a reasonable portion of the costs which he has incurred, without the slur being cast upon him that he has not been sufficiently acquitted, if one may use that expression, as to have the costs awarded.

There is one other point which I ask my right hon. and learned Friend to consider between now and the final stages of the Bill. There are cases—there have been some recent ones—in which a great injustice has been done by the committal of certain individuals from petty sessional courts to the higher courts. I do not want to go into details. I think that the Committee will be aware of some of the cases. It seems to me that now that we are introducing this important Measure at long last—because it has been a very serious defect in our procedure—it might be considered reasonable that, to some extent, this might be made retrospective. That might perhaps not be done by legislation, but by my right hon. Friend the Home Secretary considering the matter an ex gratia one in respect of those who have suffered severely by having been placed in a grave position of peril when there was no justification at all for it.

I know that my right hon. Friend is a man of very warm heart in these matters and that he will appreciate that those who are sometimes put to enormous expense in having to clear their characters, and who are sometimes told by the Judge in the Court of Appeal that there was not the slightest shred or shadow of evidence to justify taking the proceedings or the committal, should be considered in a similar manner to those who come within the provisions of this new Clause. I commend that to the Home Secretary and the Attorney-General, and I hope we shall have a statement at a later stage showing that they do not regard this as a small matter but as something which should, quite properly, be allowed.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

May I ask the Attorney-General to tell us whether this new Clause, with its generous provision, will apply to Scotland? I ask this question because it may be a very considerable time before similar legislation is introduced affecting Scotland. Some of the Clauses in this Bill affect Scotland, and some do not. I hope that, if there is any generous new Clause introduced into this Bill, Scotland will have the advantage of it.

Photo of Mr Selwyn Lloyd Mr Selwyn Lloyd , Wirral

I think most of us on this side of the Committee will welcome this Clause and consider it important. At the same time, I cannot feel that the argument of the hon. Member for West Leicester (Mr. Janner) is really very sound. I think it would be very dangerous if people were to feel that, in criminal cases, costs would follow the event as they do in civil cases. Although I quite agree that this is a very useful power to have and to use in appropriate cases, I feel that it should be rather carefully used, because it seems to me that, if it becomes widely assumed that costs are to follow the event, it might have a serious result on the detection of crime which might be very far from the wishes of those who support the new Clause.

Photo of Mr Terence Donovan Mr Terence Donovan , Leicester East

I should not like this new Clause, which is an important one, to be passed without some commendation from this side of the Committee as well. It removes a long-standing grievance, and I think the Government are to be wholly congratulated and sincerely thanked for what they have done in this respect. It would also be true to say that the hon. Member for West Leicester (Mr. Janner) took the initiative in the matter, and I think he is to be congratulated, too.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

There are three short points I wish to make. It would be quite impossible and quite unconstitutional to make any provision of this Clause retrospective. Nor, of course, has my right hon. Friend any legal power to dispense public funds in an ex gratia manner in matters of this kind. As to the general principles in accordance with which this Clause should be operated, the matter will be entirely within the discretion of the courts which may operate it. I am bound to say, as far as I am concerned—and I think most persons who are concerned with the administration of justice would take the same view—that it would be highly dangerous if it were to be thought that costs will always, or even normally, follow the event. We anticipate that the courts operating these provisions will follow, in general, the kind of practice that has been adopted in courts of summary jurisdiction in this matter and that they will award costs only in those rather exceptional cases where there are the particular kind of circumstances to which I alluded in moving the new Clause.

In regard to the point raised by my hon. Friend regarding the application of the Clause to Scotland, this Clause does not apply to Scotland. I can hold out some hope to my hon. Friend, without committing my right hon. and learned Friend the Lord Advocate in any way, that there is another Bill which is dealing with cognate matters so far as Scotland is concerned. It may be that provision will be made in that Bill, but I do not know.

10.0 p.m.

Photo of Mr George Porter Mr George Porter , Leeds Central

Can the right hon. Gentleman say that this Clause will in no way alter the rights of the person who is charged to take action in a civil court?

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

It will not affect him in any way.

Clause read a Second time, and added to the Bill.