§ Mr. Ewart moved, and the House resolved itself into Committee on the Prisoners' Counsel Bill. On the first clause of the Bill being proposed,
§ Mr. Poulterwas extremely desirous to remove all inequality by which prisoners were affected, under any circumstances. If the hon. member for Liverpool would consent to strike out the last proviso in the clause, every inequality would be removed. The prisoner would be put upon the same footing with the prosecutor, by being left to the exercise of the same privilege the prosecutor possessed of addressing the Court by his Counsel, and thus many of the erroneous verdicts which were frequently returned would be avoided, and the time of the Court of King's Bench not occupied with applications to set them aside. Unless the hon. Member would consent to withdraw the proviso, he (Mr. Poulter) should feel it to be his duty to take the sense of the House upon it. The hon. Member concluded by moving, that all the words after "notwithstanding" to the end of the clause, be expunged.
Mr. Wynnsaid, the clause was objectionable on several grounds. Its effect would be, to prohibit the Counsel for the prosecution addressing the Jury, until after the depositions of the witnesses had been taken. But it must occur to every one at all conversant with the practice of criminal Courts, that in many cases of circumstantial evidence, there would be no possibility of obtaining a conviction, unless the Jury had pointed out to them previously by the Counsel, those strong points in the evidence of the witnesses which bore directly upon the charge in the indictment. He could mention a case where there could be no doubt entertained of the moral guilt of certain murderers, and yet it was impossible any conviction could have taken place, if the clause now under consideration had 822 been the law of the land. On these grounds he was very much opposed to the clause as it stood at present.
§ Sir William Raesaid, the English law contained a great many imperfections when contrasted with the criminal law of Scotland. He could not understand the principle on which the English form of indictment was maintained. It gave no information to the prisoner of the nature of the offence for which he was to be tried, or stated directly what the charge was, for which he was to be arraigned at the Bar. The form of indictment in Scotland, however, contained a most accurate and minute statement of the crime of which the prisoner stood charged; and the time and place of its committal, together with all the circumstances attending it, were set forth in such simple and clear terms as to be intelligible to every person who read it. All these circumstances were so necessary to be correctly stated in the indictment, that if the evidence adduced in support of it at the trial turned out to be different to the circumstances contained in the indictment, that fact alone would be a sufficient defence on the part of the prisoner to secure his acquittal. The indictment rendered the case as plain as any statement by Counsel could possibly be, and in some cases a great deal plainer. In another part of the criminal law of England, a great anomaly existed, and it appeared very difficult for him to understand why, in a charge for a misdemeanour only, the prisoner should be permitted to address the Court by his Counsel, but that in a case where the life of a prisoner was concerned, such a permission was granted to the prosecutor, and not to the prisoner. Was it right that Counsel should be allowed against a prisoner, and that none should be permitted to address the Court in his defence?
§ Viscount Howicksaid, it had been stated by the hon. member for Liverpool, that it would be most desirable, in effecting any alterations in the present law, to introduce no new or untried practice, but to let the new form of the proceedings in the trial of criminals be governed by some well-known forms that had undergone fair trial, and were found on experience to operate well. He thought after the statement which the House had just heard from the hon. and learned Member, the object of the hon. member for Liverpool would not be accomplished by the clause now under consideration: there would still be a great discrepancy between the criminal law of 823 Scotland and England. He was of opinion the form of practice which was introduced by the Bill of the hon. member for Liverpool, would lead to very great confusion and inconvenience. He agreed with the right hon. member for Montgomery, that a Jury having nothing to guide them in a long and complicated case, but being called on to listen to the lengthened depositions of a great number of witnesses, would not be able to come to such a sound and accurate conclusion, as they would if a concise and consecutive statement of the chief points of the evidence were made by the Counsel for the prosecution in the first instance. The hon. member for Liverpool had introduced this Bill with a view of getting rid of a great anomaly that existed in the process of criminal proceedings. He was of opinion that this clause, instead of destroying an anomaly, would create one. By far the simplest course would be, to omit the clause altogether, and to substitute a short clause, declaring that the form of proceeding in cases of felony should be the same as in cases of misdemeanour. This he thought would be much better than to meddle with the Law of Evidence. Subsequent improvements might easily be made, founded on experience, without encumbering the present Bill, if the mode of cross-examination now practised, should be found not to be the best mode of eliciting the truth.
Mr. Wynnwas of opinion it would be a much more judicious course to leave it to the discretion of the judges to decide in what cases counsel should be heard on the part of the prosecutor, and also on the part of the prisoner.
§ Mr. Eardley Wilmothad supported this Bill from feelings of humanity to the prisoner and justice to the public, and he could not help saying, that he considered this clause injurious to both, and on that ground he should oppose it. He had seen some thousand prisoners convicted in the course of twenty-eight years' experience, and he had never witnessed any conviction in which he believed the prisoner to be innocent. If this clause were permitted to pass, the time of the Court would be taken up with long speeches upon the indictment of every pickpocket who was brought before the Court; the feelings and passions of the jury would be appealed to, and a decision given that was not founded upon justice. He believed if the Bill passed in its present shape many innocent prisoners would be found guilty by the 824 Jury, and many guilty persons would escape.
§ Mr. Pollockstated, that Mr. Wilde informed him that during seven months of his shrievalty he had saved seven convicts from an ignominious death on the ground of their innocence alone. If this had been the case in seven months, it was alarming to consider what a number of innocent persons must have suffered in the course of years. The fact was, the prosecutor and the prisoner were not on a par. He thought if the Amendment of the noble Lord were adopted, without some check upon the counsel, the prisoner, instead of being benefitted, would be injured. Counsel had the power of placing a case much more strongly before a jury by means of an artful cross-examination in some cases, than by a regular address to the jury. He believed that justice would not be done to the prisoner unless he were allowed a reply upon the whole case, after the counsel for the prosecution should have observed upon the evidence on the part of the prisoner; and this was the opinion of a high legal authority. He did not think, if this was permitted, so much time would be occupied in making the speeches as was already consumed in the cross-examination of witnesses.
§ Mr. Ewartsaid, that one great object of the Bill was, to give the prisoner a reply on the prosecutor; let there be speech for speech, but not two speeches for one, and let the judge be merely an arbiter between the parties. He would propose an Amendment which would have this effect, allowing the statement of counsel to take precedence of the evidence, and this he thought would meet all the wishes that had been expressed.
§ Sir George Greyexpressed his full concurrence in the principle of the Bill, and was of opinion, after giving the subject his best consideration, that the most efficient way of carrying that principle into effect would be by the Amendment of the noble Lord (Lord Howick). He considered the Amendment just proposed by the hon. member for Liverpool quite useless, as it must be evident to every one acquainted with the proceedings in criminal cases, that there was a very wide difference between the opening speech for the prosecution, and the speech which a counsel would make on the behalf of a prisoner.
Mr. Hillconcurred in the general principle of the Bill, but thought justice would not be done to the prisoner in a criminal 825 case unless he had a right of reply upon the speech of the counsel for the prosecution.
Sir George Stricklandthought, that it was most desirable that as little change should take place in the existing forms as possible in carrying the Amendment into effect. If an opening speech was allowed to the counsel for the prosecution, he agreed with the hon. member for Liverpool, the prisoner should enjoy the privilege of answering that speech by means of counsel. Great injury would be done to the prisoner by allowing the counsel for the prosecution a right of reply. Why, he asked, was the House so niggard of this trifle of mercy to the prisoner? For many years past, instances had continually occurred of the execution of innocent men. Would the House consent to the continuance of such lamentable occurrences? He attended a trial himself, and left it with a full conviction of the man's innocence. Had a counsel addressed the jury in his behalf, he must have been acquitted, but he had been a witness of that man's execution. Such dreadful consequences he wished to arrest, and therefore he should vote with the hon. member for Liverpool.
§ Mr. Bernalapprehended it was impossible to make a mathematical equalization of the right of addressing the Court by Counsel in every case. The case was surrounded with difficulties; but if an equal advantage could not be given to both parties, it became the duty of the House, if a preponderance must exist, to let it fall on the side of the accused. They ought not to lose sight of the old maxim, that it was better to let ten guilty men escape than to make one innocent man suffer.
§ Mr. Charles Bullerwas of opinion that the effect of the suggestion of the hon. and learned member for Huntingdon, that counsel should make two speeches, would render them very desirous to avoid making any.
§ An Amendment was moved by Mr. Pollock to the effect, that in all criminal cases the party accused shall have the liberty to defend himself by counsel, provided, that if evidence should be given on the part of the defence, and the prosecutor's counsel should reply upon such evidence, then the defendant's counsel should have a right of addressing the Court upon the whole case. Agreed to.
§ Sir Eardley Wilmot moved that a proviso be added to the clause, that unless the 826 counsel against a prisoner shall have made a speech for the prosecution, the counsel for a prisoner shall not address the Jury in his defence.
§ The Committee divided—Ayes 25; Noes 32; Majority 7.