HC Deb 03 July 1861 vol 164 cc271-80

Order for Second Reading read.

MR. WALPOLE

said, he rose to move the Second Reading of this Bill, which had come down from the Lords, and he should have thought it was one which would not have met with any opposition, but it appeared it was likely to be opposed in some quarters, and one hon. and learned Gentleman had given notice of a Motion for the Bill to be read that day six months. The Bill had received the sanction of the late Lord Chancellor and all the law Lords. A few of the provisions it first contained were objected to, but after it had gone through a Select Committee they all acquiesced in it. The whole of the principle of the Bill might be said to lie in the first and second clauses. The first clause provided that charges were not to be tried at the Central Criminal Court, or at any General or Quarter Session of the Peace within the City of London or the Metropolitan Police district, without previous investigation by a magistrate. In other words, it was provided that no charge should be preferred against a person by going behind his back to a grand jury in the first instance, when there was an opportunity of going to a trained professional magistrate, who could understand the charge, and see whether it was of such a nature and supported by such proofs as rendered it proper that the person charged should be sent to trial. The second clause enacted that when a charge was investigated by a justice of peace, in open court, it should no longer be necessary to go to the grand jury, who sat in secret, before whom witnesses were not confronted with each other, and who were not professionally trained, so as to be able to give that judicial opinion on the subject which a trained professional person was competent to pronounce. The main objection which was urged against the Bill was that it tended to supersede the grand jury system; and in that case, it was asked, what was to be done with a class of offences called political offences, in respect to which the grand jury system had acted as a shield of protection, and as a barrier between the Crown and the subject? His answer to that objection was that the 8th Clause of the Bill provided that the Bill should not apply to that class of offences, and if the clause should not be deemed sufficient for the purpose it could be amended in the Committee. It was said, and truly said, that the grand jury system had been a great protection to the people of this country against improper accusations, and against the undue exercise of power on the part of persons in authority. Nobody felt that that had been the case more strongly than he did; and if there was anything in the Bill which could supersede that system, he for one would not move the second reading. But what ground was there for such an apprehension, when in fact the grand jury system would, under the present Bill, be as complete in the country as now, and when political cases in the metropolitan district were by the 8th Clause excepted from the operation of the present Bill? Surprise was expressed that a Member of the Conservative party should introduce a principle leading, it was alleged, to the extinction of the grand jury system, which had proved so valuable not only in protecting the subject against the Crown, but in bringing the Judges of the land into constant intercourse and association with the landed gentry. His answer was that the Bill did nothing of the kind; and whoever considered the subject would see that the grand jury system was introduced for purposes for which at the present time it was no longer applicable in the Metropolis, though it might be very advantageously kept on foot in other parts of the kingdom. Fifteen years ago the Criminal Law Commissioners considered this subject, and directed questions to be put to a vast number of persons—Judges, magistrates, barristers, recorders, solicitors, and other persons acquainted with the practice of the criminal courts, and there was scarcely an answer given which did not amount to an acknowledgment that in the Metropolis the grand jury system was in almost all cases superfluous, and in many cases was very mischievous. One of those who gave an opinion at that time was the late Lord Denman, who, when referring to an article in the Edinburgh Review, said it contained an opinion he had formed some years before, that no benefits were produced by the grand jury system but the co-operation of the higher and middle classes in the administration of justice. In 1846 a presentment was made by the grand jury at the Middlesex Sessions, in which they stated that in their experience grand juries in the metropolitan district were a positive impediment to the administration of justice, and they went on with these significant words— Though they were perfectly aware that the court had no power to accord them any relief, and that it was only by reiterated representations that any consideration could be expected from the Legislature, they were the more induced to this step from a consideration of the nature of the cases which occupied the time of the jury, cases of so frivolous a character that the intervention of a grand jury seemed to have no possible object but the detention of the prisoners and the lengthening of the proceedings of the court, and did not as far as they conceived tend to any possible good. In 1847 a remarkable observation fell from a Judge whose recent death they had had to deplore, who was not inferior to Lord Denman—he meant Mr. Justice Patteson—who, addressing a grand jury of Middlesex, said— It was not in his power to give them any information as to the cases which would be brought before them, because he had really no means of knowing what those cases might be, nor indeed was he aware that that would be troubled with any cases at all. They might think it strange that they should be brought together to hear this, but still it was a tribunal before which any of Her Majesty's subjects might prefer any charge. It was the law that they should be thus called together, and they must obey it". In 1848 another presentment of the grand jury was made to the Central Criminal Court to a somewhat similar effect to that of the grand jury of Middlesex which he had already read. These matters were pressed so much on the consideration of the Government, that in 1849 the then Attorney General brought in a Bill to amend the law in respect to the grand jury system within the metropolitan district. The Bill was sent to a Select Committee, the witnesses before which expressed views similar to those he had just detailed to the House, one of them declaring the grand jury to be the hope of the thief. Before the Bill passed a new Government succeeded, and then he, as Home Secretary, together with the Attorney General of that time, (Sir Frederic Thesiger), introduced a measure for the amendment of the law. They had not an opportunity of passing all the measures they desired, but he believed that history would hereafter say, that there had been no Session during the last twenty five years in which so many laws were passed for the improvement of the legal and social system as in the Session of 1852. Again, in 1853 the matter was brought before the attention of his right hon. Friend opposite by a memorandum drawn up by the Middlesex magistrates, who made three divisions of the subject:—First, where the magistrate sent the case for trial; second, where he refused to do so; and third, where the parties went before the grand jury without a preliminary investigation before a magistrate. In regard to the first they were of opinion that there was no necessity for a further investigation before the prisoner was subjected to trial. In regard to the second, they said there ought to be a further opportunity for investigation; and in regard to the third they said, the power of going before the grand jury in the first instance was oftener a means of enabling parties to get up cases for the purpose of extorting money form persons against whom they made accusations. The latter practice had to a certain extent been got rid of by the Vexatious Indictments Bill, and the present Bill would have a further effect in the same direction. In 1857 another Bill was brought in on the subject of grand juries, but it was lost in consequence of the lateness of the Session. A Bill had also been in 1860 introduced on the subject in the House of Lords, but the business of the Session had not admitted of its being proceeded with in the House of Commons. He had now stated fairly the nature of the case, but he might, perhaps, before resuming his seat, be allowed, in reply to the objection that there were no stipendiary magistrates in the City of London, or in those districts subject to the jurisdiction of the Central Criminal Court, to observe that from all he could learn, the clerks who assisted the mayor and aldermen in the discharge of their magisterial duties in the City were men of so much ability and experience that there would be in their case no greater risk of a miscarriage in the administration of justice under the operation of the Bill than in those instances in which the stipendiary magistrates were the persons presiding; whereas, so far as the outlying districts which were under the jurisdiction of the Central Criminal Court were concerned, the Bill removed all difficulty by providing that the cases with which it dealt should be investigated by two justices sitting in open court. He should simply add, that he did not think the Bill would be found practically to interfere with the working of the grand jury system throughout the country generally, inasmuch as it merely set forth that forty juries should not every year be summoned for Middlesex and the Metropolis, but that there should instead be three for the Central Criminal Court and four for quarter sessions. Having made these observations, he begged to move the Second Reading of the Bill.

Motion made, and Question proposed, "That the Bill be now read a second time".

MR. AYRTON

said, he could not but express his regret that the right hon. Gentleman should have thought it necessary to submit the Bill to the House at that period of the Session, because it was quite impossible to discuss it with the care and attention it deserved, and he regretted it the more because the hon. and learned Member for Wexford, who had given notice of his intention to move that the Bill be read a second time that day six months was not present. It was also extremely undesirable to proceed with the Bill at a moment when there was no opportunity of learning with respect to it the opinions of the law officers of the Crown. There was, he added, another very good reason why he was opposed to the course which the right hon. Gentleman asked the House to take, and that was that the Committee which had during the present Session been appointed to inquire into the government and taxation of the Metropolis, and which had evidence adduced before it which might tend materially to alter the views even of the right hon. Gentleman himself on the question at issue, had not yet been able to lay that evidence before the House. While admitting, therefore, that the number of grand juries summoned in the Metropolis might be looked upon as a great evil, he could not concur with the right hon. Gentleman as to the expediency of asking hon. Members to assent to a measure which was calculated entirely to subvert the existing system of administering justice as that which was now proposed. He was also prepared to maintain that, however much the right hon. Gentleman might endeavour to separate the Metropolis from the rest of England, yet the principle which he advocated was in the main applicable to grand juries throughout the country at large. The Bill, indeed, as it stood extended to the City of London, and those districts which might be called rural, where justices of the peace exercised the functions of their office in the same way as justices of the peace did in other parts of England. The right hon. Gentleman, it was true, said that he did not propose to abolish grand juries for all purposes, and that its provisions were not intended to apply to charges of treason, misprision of treason, or any offences against Her Majesty, the State, or the Government; but he might remind the House that in times of great political excitement a simple charge of assault might involve considerations of a political character, and that under the operation of the Bill there would always be the difficulty of deciding what was to be regarded as a political offence, and what as merely a private wrong. He looked upon it also as a very strong objection to the Bill, that while, in accordance with the existing law, any person committed for an offence within the police district possessed the advantage of having his case brought to trial within a short period, any person prosecuted by the Crown might, if grand juries were abolished, as proposed, be kept in prison for three times the period which he would if the prosecution were instituted at the suit of a private individual. It was, however, said that the system of grand juries gave rise to a considerable amount of collusion and fraud, and they, no doubt, like all other human institutions, had some imperfections; but a similar objection might be urged against the existence of every grand jury in every county in England, and even against petty juries themselves, as the experience derived from our courts of justice abundantly proved. He could, of course, very well understand that many persons in the Metropolis who wished to lead a life of ease, and did not like to be troubled by being called upon to discharge the duties of grand jurors, might support the views which the right hon. Gentleman advanced; but if those Gentleman were informed that they would be called upon to sit on petty juries he thought it not improbable that their opinions on the subject might undergo a material alteration. The right hon. Gentleman did not state that the observation of Mr. Justice Patteson which he quoted was made to the grand jury in the Queen's Bench, where the grand jury in the had really nothing to do. He (Mr. Ayrton) saw no objection to the abolition of a mere nominal grand jury. The question was not whether it would be convenient to this man or to that to have the grand jury system abolished, but whether a man should be put on his trial for felony unless his case had undergone a preliminary ordeal, and twelve men of repute had declared it to be one which demanded fuller investigation; and to those who contended that it did not, after all, matter to a man who was innocent whether such was the case or not, for that he might feel confident his innocence would, under the proposed system, be made equally manifest, he would simply say that the ordeal of being placed in the dock was not one to which they themselves, however innocent they might be, would like to be submitted. He must further observe that the right hon. Gentleman had not given due weight to the fact that great changes had been made in the law since the agitation on the question at issue stood at its greatest height, and he must remind him that since that time Lord Campbell had introduced into the other House of Parliament a Bill, which had been passed into a law, by means of which many of the evils complained of were obviated. That being so he thought he had said enough to point out to the right hon. Gentleman the inconvenience of proceeding with this Bill. He trusted it would be withdrawn for the present Session. He (Mr. Ayrton) must remind the House that the Bill was not confind to the Metropolis either in principle or practice. If the principle were a true one, why did not the right hon. Gentleman come forward and frankly propose a general measure applicable to the whole country? At least, until that was done, the Metropolis ought not to be placed in an exceptional position and deprived of the benefit of an existing legal institution.

SIR GEORGE LEWIS

said, he had in more than one previous debate in that House had occasion to observe that the views of the hon. Gentleman who had just spoken with respect to the time necessary for the due discussion of Bills were of a most comprehensive character. Indeed, he could not help imagining that the hon. Gentleman's idea of Utopian perfection in a legislative assembly must be that at least twenty of its Members should speak upon every question which came before it, and that each of those twenty Members should occupy at least two hours in the delivery of his speech. The hon. Gentleman contended that there was not, at that period of the Session, sufficient time for the discussion of the Bill under the notice of the House, which consisted of only eleven clauses and some formal schedules, and had then proceeded to say that the Bill ought not now to be dealt with for the additional reason that there was a Committee sitting upstairs on the subject of the government and taxation of the Metropolis. The first of those objections appeared to him, he must confess, to have but little weight; while, so far as the second was concerned, he should merely remark that in assenting to the appointment of the Committee he had distinctly stated that he did not look upon it as calculated to preclude the House of Commons from discussing any legislative measure with respect to the Metropolis which might be brought under its consideration. If the contrary were the case the legislative operations of the House would, he could not help thinking, be very considerably narrowed. He was prepared to give his vote for the second reading of the Bill, which had been considered in former Sessions and appeared to be founded on a just principle. He dissented from the doctrine that there was no distinction between the Metropolis and country districts with respect to grand juries. In the country a grand jury was composed of the principal persons of the county, and the committals were made by the magistrates sitting in petty sessions, whose decisions were not as a rule reported in the public press. A grand jury in London could not be considered as corresponding in point of social position to a grand jury in the country, and the committals in London were made either by professional magistrates or by aldermen, assisted by professional clerks. Both magistrates and aldermen sit in the presence of the public, and their decisions were reported by the newspapers. He thought, therefore, that there was sufficient ground for the establishment of a distinction between the Metropolis and the country with respect to grand juries, and he saw no reason why the House should not at once agree to the Bill. He admitted that there was a difficulty in drawing a line between political and other offences; but that was a question of detail which might be amply discussed in Committee.

MR. H. B. JOHNSTONE

said, he was satisfied that there were cases in which the working of the grand jury had been highly detrimental to the well-being of the community and to the welfare of individuals. He could mention an instance within his own knowledge of a gentleman who, while travelling on the Continent, had an indictment preferred against him by a low attorney, for having made a mistake in an affidavit. As soon as the indictment was preferred the attorney made overtures for money to suppress the case; but the overtures were rejected and the case was abandoned. The gentleman against whom the charge was made being of a nervous temperament, the charge had such an effect upon him that he died in a fortnight. Now, that was not a solitary case. The cases of extortion had been very frequent, and it was the duty of the Legislature to provide protection to the public.

MR. HUNT

said, he would deprecate the passing, almost sub silentio, of a Bill which proposed to disturb an integral part of our criminal jurisprudence. The Bill provided that in the metropolitan districts a person should be sent to trial for felony without the intervention of a grand jury. That was an entirely new principle, and one which he hoped would never receive the sanction of Parliament. It was a mistake to suppose that the publicity given in London to the decisions of the aldermen and stipendiary magistrates rendered the intervention of a grand jury unnecessary; at all events, there was no difference in that respect between the Metropolis and the rest of the country, for all the principal decisions of county magistrates were reported in the local papers. But what were the stipendiary magistrates of London? They were persons holding office at the pleasure of the Crown, and in troubled times what was to prevent a tool of the Government from sending a man to trial without just cause? If such a case were to occur the country would regret the abolition of the grand jury system—a system which might be regarded as a great bulwark of liberty between the Crown and the subject. The Bill proposed that a grand jury should interpose in certain cases; but he should like to know how political offences were to be defined. Not long ago a man was tried for stealing a despatch. It was a case of simple larceny; but many foreign papers treated it as a political trial. He could not help thinking that the Bill was fraught with the greatest danger to the liberty of the subject and the cause of justice. At the time of the Ecclesiastical Titles Bill and the Durham Letter no Roman Catholic Bishop would have had the slightest chance of getting a fair trial if, without the intervention of a grand jury, he could have been sent by a stipendiary magistrate before a Judge who was a strong partisan. The grand jury system had come down to us from our forefathers, and he had no fear that it would be parted with lightly as long as the names of Jeffries and Scroggs were remembered by the English people. The hon. Member moved that the Bill be read a second time that day three months.

SIR MATTHEW RIDLEY

seconded the Amendment.

Amendment proposed, to leave out the word "now" and at the end of the Question, to add the words "upon this day three months."

Question proposed, "That the word 'now' stand part of the Question."

MR. NEWDEGATE

said, he would move the adjournment of the debate, as he felt that at that hour (20 minutes to six o'clock) it was impossible to proceed with the discussion of the Bill.

Debate adjourned till To-morrow.