The Press SATURDAY, MARCH 5, 1966. Lower Court Hearings

Press, Volume CV, Issue 31001, 5 March 1966, Page 14

The Press SATURDAY, MARCH 5, 1966. Lower Court Hearings

The opinion of Lord Shawcross favouring the abolition of committal proceedings before Supreme Court trial should be studied by members of the Justice Department committee now reviewing aspects of these preliminary hearings. Two British lawyers, Mr Edward Gardner, Q.C., and Mr Mark Carlisle, both members of Parliament, recently completed a study of pre-trial procedure. Their report was published last month by the Conservative Political Centre and their conclusions were supported in a foreword by Viscount Dilhorne, a former Lord Chancellor. Interviewed during his visit to Christchurch, Lord Shawcross, a former Attorney-General, said that British legal opinion strongly favoured abolishing preliminary hearings of indictable charges. He added, as did Mr Gardner and Mr Carlisle, the important proviso that an accused person should be able to obtain a lowercourt hearing of the evidence against him if he desired it.

Committal proceedings are held before a magistrate or justices of the peace who decide whether a prima facie case has been made sufficient to justify its being sent to the Supreme Court for trial. The preliminary recording of evidence was once thought of in Britain as a means by which justices could examine witnesses to build up the case against an accused person. In modern times the procedure has two purposes: to inform the accused, and his counsel, of the case against him and to preserve him from malicious or frivolous prosecution. Publication of reports of these proceedings reinforces both purposes. It demonstrates publicly and without delay whether the police have a case which justifies their decision to bring a charge. It makes known the fact that the law, represented by the magistrate or justices, is watching the interests of the accused, and the publication of statements made by prosecution witnesses increases the likelihood of other witnesses coming forward either to refute or to support the evidence offered by the prosecution.

For all this, much can be said in favour of dispensing with preliminary hearings if the accused is willing to accept draft depositions—not made under oath—as accurately representing the evidence that will be brought against him in the Supreme Court. This would save the time of the courts, of the police, and of other witnesses. If the accused doubted the sincerity of the witnesses when they made statements to the police, if he suspected they might change their statements under oath, or if he supposed that cross-examination of the witnesses in the lower court would dispose of the case, then he would take the option of a preliminary—and public—hearing. This decision would be made before the Magistrate s Court after the accused had examined the written statements of prosecution witnesses. If the accused elected to have committal proceedings of the present kind the case would be adjourned to another day when the witnesses would be summoned to appear. Sworn evidence should be heard at the earliest possible time. The abolition of the quarter-sessions system has reduced delays before trials. If it appeared either to the prosecution or to the defence that a delay before the Supreme Court hearing might impair the taking of sworn evidence either could seek the hearing of certain witnesses in the lower court at an earlier date. As Lord Shawcross said, the abolition of preliminary hearings is preferable to their being conducted in secret. Abolition renders largely irrelevant the arguments about whether public and reported committal proceedings are prejudicial to a subsequent trial. If there were to be more than formalities at a pre-trial hearing it would be because the accused desired it.