§ Court of Summary Jurisdiction.
§ Clause 4 (Mitigation of punishment by court) agreed to.
§ Clause 5 (Scale of imprisonment for non-payment of money).
§ SIR WALTER B. BARTTELOTthought that an alteration was necessary with reference to the terms of imprisonment provided for by the clause in connection with money payments; the two last terms of two and three months were, in his opinion, insufficient for the sums mentioned in the clause, and he considered that a considerably longer term should be inserted if the amount exceeded £20. They had hitherto dealt with smaller sums; but in the case of large ones, he thought more power should be given to the magistrates.
MR. ASSHETON CROSSsaid, the object of the clause was to show the maximum term of imprisonment to be administered in each case. But the words, "such period as in the opinion of the Court will satisfy the justice of the case," were intended to show that the Justices themselves exercised a discretionary power. If the hon. and gallant Baronet (Sir Walter B. Barttelot) would look at the Small Penalties Act, he would see that the last scale was "not exceeding £20 or three months." Of course, there might be a difference of opinion as to what the scale ought to be, and the 89 Bill in no way took away the discretion of the magistrates; on the contrary, its object was to leave their hands much more unfettered than they were at present, in the belief that their powers would be wisely exercised.
§ Clause agreed to.
§ Clause 6 (Sum recoverable by summary order to be recoverable as a civil debt) agreed to.
§ Clause 7 (Payment by instalments of or security taken for payment of money).
§
SIR HENRY JAMES moved to insert, after Sub-section 3, the words—
Impose such imprisonment if default be made in payment of the sum or instalment at the time fixed, as the person liable to pay the same may be liable to if default be made in payment of a fine of a like amount imposed under this Act or otherwise.
He was informed that the practice had been in the case of time being given to issue a fresh summons calling upon the person to pay, a proceeding that was quite unnecessary, and which, moreover, caused expense. He had also been informed that power of imprisonment existed in the Act, although he had not been able to find it.
MR. ASSHETON CROSSsaid, the hon. and learned Gentleman had exactly stated what had passed between them. He (Mr. Assheton Cross) had shown the Amendment to the draftsman of the Bill, and was assured that ample care had been taken that the magistrate should have the power which his hon. and learned Friend desired for him. Before Report, he trusted to be able to satisfy him that such was the case.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 8 (Including of costs in small fines).
§ SIR WALTER B. BARTTELOTinquired why the fine of 5s. under this clause did not carry costs?
MR. ASSHETON CROSSsaid, that every magistrate to whom he was speaking must have felt the desire to impose a small penalty, while, at the same time, he knew that even if he imposed a penalty of 1s. or 2s. the costs might amount to perhaps 10s., and that, therefore, he was really inflicting a greater fine than was necessary. The fine of 5s., without costs, was intended to apply to 90 all trivial cases of the kind referred to; the magistrate, however, if he really wanted to inflict costs could, of course, do so. He wished it to be distinctly understood that it was not obligatory upon the magistrates that the fine should be imposed without costs. In that way, he trusted it would be seen that the discretion of the magistrates had been absolutely preserved.
§ Clause agreed to.
§ Clause 9 (Enforcing of recognizances by court of summary jurisdiction).
§ SIR HENRY JAMES moved, in page 4, line 14, after the word "retainer," to insert "or not to do or commit some act or thing."
§ Amendment agreed to.
MR. ASSHETON CROSSsaid, he had a verbal Amendment to make at the end of Clause 9. It was entirely a draftsman's Amendment, and was as follows:—In Clause 9, line 25, to leave out the words "in like manner as sums are paid," in order to insert "by such person by whom such sums are payable."
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ Clause 10 (Summary trial of children, unless objected to by parent or guardian).
§
MR. P. A. TAYLOR moved, in page 5, to leave out Sub-section D, as follows:—
When the child is a male, the court may, either in addition to or instead of any other punishment, adjudge the child to be, as soon as practicable, privately whipped, with not more than six strokes of a birch rod, by a constable, in the presence of an inspector or other officer of police; and also in the presence, if he desires to be present, of the parent or guardian of the child.
He hoped the House would hesitate before it endorsed this punishment of flogging for a child—he had almost said a baby—for it was to apply to children of seven. In these days of general scepticism it appeared that they believed in nothing so strongly as in flogging—they flogged in their Army and Navy, they flogged their criminals, and now they were going to establish or to legalize flogging for infants. The only argument that he had ever heard offered in favour of this was that it was better to flog children than to imprison them. That was very much like recommending a small dose
91
of arsenic as being less poisonous than prussic acid. He could scarcely bring himself to believe that England, with all its wealth, with all its learning, and with all its means of enlightenment, was really obliged to have recourse to the barbarous practice of flogging children, simply because it did not know what better to do with them. This Bill would do far greater evil in England than the mere flogging by officials that would take place in prison. No doubt, magistrates would very often have their hearts softened by the piteous little wretches with whom they had to deal, and would hesitate to sentence them to these punishments. But the effect that this Act would have throughout England would be very different. People throughout the country, finding flogging inflicted by the State, would go home and inflict additional chastisement on their unfortunate children. Only recently a Question was asked in that House about a child of nine years of age who had been beaten, and then had salt rubbed into its wounds. The story was not true, perhaps. The right hon. Gentleman said it was not true, or that it had been greatly exaggerated, and that the magistrates had said more beating had not been given than a child of nine deserved! Than a child of nine deserved! If a clause like this became law, brutish, ignorant persons would take the infliction of flogging by it as an example to be followed. He believed that House prided itself upon being a Christian Assembly; but he must say that clause, if it should pass, would, so far from carrying out the words of One reverenced by millions of people, only in effect say—"Suffer little children to come unto us, that we may flog them."
§
Amendment proposed,
In page 5, line 10, to leave out from the-word "shillings," to the word "child," in line 17, inclusive.—(Mr. P. A. Taylor.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
§ MR. HOPWOODthought it right that he should make the observations he intended at that time, in order to enable the right hon. Gentleman the Home Secretary to follow him. He most cordially supported the Amendment. He 92 had had the honour to serve on the Select Committee on this Bill, and this was one thing, and, he might say, the only thing, in which he stood alone on that Committee; and it was the only thing in which one Member had failed to make an impression upon the others, or to induce them in many material respect to alter their views. His dislike to flogging remained deeply-rooted, and he intended to give his utmost opposition to it. His reasons for supporting that Amendment were these. If they were to have flogging, how were they to proportion it? One child under 12 might be exceedingly hardy, and would not mind it; another might be very delicate, and it would be a most cruel punishment. There would also be this difficulty—that the flogging would be done by the hands of a constable, and they had already had various public scandals with regard to flogging by the hands of a constable. He did think that if all they could do to a little child was first to ascertain if it were fit to bear it, and then to submit it to the punishment of six strokes with a birch rod, it would be better to have no punishment at all. Hon. Members on the other side did not appear to sympathize with this view. They were very superior to those on that side, and looked down upon them from a lofty eminence as on foolish persons opposing a humane substitute for the prison. Some people seemed to think that six strokes with a birch rod were a better alternative than imprisonment. He did not think so, nor did he admit that imprisonment was the alternative. Would it not be much better to send a child home to its parent or guardian, and trust to the correction it would receive from them, rather than to sentence it to six strokes with the birch rod from the hands of a constable? It seemed to him to be much better to secure the correction of the child by the alternative of a fine, which would fall upon the parent or guardian, and make him more attentive to the child in the future, or, at all events, preserve it from indulging in those acts which would bring it within the Criminal Law.
MR. ASSHETON CROSShoped the Committee would leave the clause as it stood in the Bill. In the first place, many parents took no heed of their children, and allowed them to run wild about the streets; and a good many 93 parents, if they were fined for the acts of their children, would inflict a much more severe penalty upon them than was provided by this clause. Looking at the whole scope of this clause from the beginning to the end, its object was to keep a child from becoming a criminal, and he did hope that the Committee would pass the clause. If the hon. Member for Leicester (Mr. P. A. Taylor) would look at the Bill again, he would find that no child could come under the exceedingly mild correction sanctioned by the clause unless he was seven years of age. He must also add that they had a very large Committee when the clause was under discussion, and that they all agreed to it except the hon. and learned Member for Stockport (Mr. Hopwood).
§ MR. JACOB BRIGHTthought that if the treatment proposed was desirable for some children it ought to be applied to all. He did not see why female children should be exempted, for what was good for a male child must also be good for a female.
§ COLONEL MAKINSobserved, that that was the first time he had heard a champion of women's rights get up and claim for them a right to be flogged.
§ MR. HOPWOODthought the Committee had just been favoured with an exhibition which he felt inclined to comment on, but on reflection he would let it pass.
§ Question put.
§ The Committee divided:—Ayes 98; Noes 22: Majority 76.—(Div. List, No. 85.)
§ Clause agreed to.
§ Clause 11 (Summary trial with consent of young persons, juvenile offenders).
§
MR. GREGORY moved, in page 6, line 4, after "do" to insert—
Having regard to the character and antecedents of the person charged, the nature of the case, and all the circumstances of the case.
§ Amendment agreed to.
§ MR. P. A. TAYLORsaid, that an Amendment to this clause also stood in his name. This clause was another variety of the preceding, with the substitution of 12 strokes with the birch for six. With the wish to relieve Great Britain from the degradation of being 94 the only civilized country in Europe which inflicted such punishments as these, he begged to propose as an Amendment in page 6, line 10, after the word "months" to leave out everything to the end of line 17.
§ Amendment proposed, in page 6, line 10, to leave out from the word "months," to the word "police," in line 17, inclusive.—(Mr. P. A. Taylor.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
§ SIR HENRY JAMESsaid, the clause provided for the punishment of children who, in the opinion of the Court, were not 14. Surely there ought to be some better mode of ascertaining the age than by merely looking.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)observed, that these words were quite familiar. They enabled the Court to ascertain the ago of the child by any means it pleased.
§ Question put.
§ The Committee divided:—Ayes 100; Noes 19: Majority 81.—(Div. List, No. 86.)
§ SIR HENRY JAMESsuggested that further words should be inserted at the end of the 1st sub-section of the clause similar to the provision at the end of Subsection D, Clause 10, for the presence at the whipping of the parent or guardian of the child.
MR. ASSHETON CROSSobserved, that the hon. and learned Member would find at the end of the Bill that by "child" was always intended a child under 12. This clause only referred to "young persons," and the introduction of the words suggested would only lead to confusion.
§ SIR HENRY JAMESasked if there would be any objection to the insertion of the proviso with the alteration of "young person" for child?
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ Clause 12 (Summary conviction with consent of adult).
§
MR. GREGORY moved, in page 6, line 36, after the word "do," to insert—
95
Having regard to the character and antecedents of the person charged, the nature of the case, and all the circumstances of the case.
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ Clause 13 (Summary trial on plea of guilty of adult) agreed to.
§ Clause 14 (Restriction on summary dealing with adult charged with indictable offence) agreed to.
§ Clause 15 (Restriction on punishment of child for summary offence) agreed to.
§ Clause 16 (Power of court to discharge accused without punishment).
MR. COLEthought that it was unwise to insert the word "damages" in the clause. If a person were not to be convicted it was well for the Court to have power to make him pay such costs as were thought desirable; but if there was a power given to the magistrate to make him pay damages for any offence, he might be condemned to pay a much larger sum than any fine which the Act imposed. He thought, therefore, that it was a serious thing to leave open the question of damages, for a person who might unintentionally have caused damages which might amount to a large sum might, in this way, be compelled to pay them, instead of leaving the party claiming the damages to his civil right. He, therefore, moved to omit the word "damages" in page 8, line 34.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)said, that it seemed to him desirable in certain cases for the magistrates to have power to award damages when the case had been proved but they did not think that it merited punishment. But he agreed with his hon. and learned Friend that they ought not to have the power to award unlimited damages, and he thought it would be well to strike out the words "such damages" wherever they occurred, and allow the magistrates not to proceed to conviction, but to dismiss the information and award costs.
§ SIR WALTER B. BARTTELOTthought that when small damage to the amount of a shilling, or something of that kind was committed, it ought to be a part of the punishment that the offender should be fined to pay for the damage he had done. A window might be broken, for instance, and there ought to be a 96 power on conviction of making the person doing it pay damages.
§ SIR HENRY JAMESsaid, that, of course, if a man were convicted, the magistrates could impose the payment of damages upon him. This clause was to meet the case of a man who had not been convicted, and, without his being convicted, there was a power to make him pay unlimited damages. If a man were convicted, the amount of damages that he could be made to pay was limited; whereas, if he were not convicted, he could be made to pay unlimited damages. It was to strike out the latter provision that his hon. and learned Friend had moved.
MR. ASSHETON CROSSobserved, that he was entirely with his hon. and gallant Friend behind him (Sir Walter B. Barttelot) as to the desirability of magistrates having the power to order payment of damages for small offences. But if there were any serious damages, the magistrates had not the power to award them.
MR. PAGETwished to say that this subject had been well considered by the Committee, and that the words were deliberately inserted in favour of persons charged with small offences. If the words were struck out, there would be no power to make a person, against whom the magistrates wished to dismiss the charge, pay damages. The words were really in favour of the person charged with an offence, for without them he could not be made to pay damages without convicting him. The object of the sub-section was that a person could be made to pay damages as compensation, if the magistrates thought it desirable, without proceeding to conviction.
MR. ASSHETON CROSSinquired if his hon. and learned Friend would be content if "damages not exceeding forty shillings" were substituted for the present provision?
§ Amendment agreed to.
§ Amendment, in line 24, page 8 after the word "and," to insert "such," agreed to.
§ SIR HENRY JAMESwas unwilling to detain the Committee, and would therefore state very briefly his objections to this clause. The clause gave power 97 to a Judge of a Court of Summary Jurisdiction—to the magistrates after proof of the commission of an act which the law said should be an offence, to say that no punishment should be inflicted. The clause had been inserted with the view that there should be an opportunity for the magistrates, if they thought that an offence, though technically it had been committed, yet did not deserve punishment, to allow the offender to go without conviction. That involved a very grave principle, for it placed those concerned in the administration of the law in a position to do a very great injustice. Judges and magistrates might have prejudices of a particular kind, and a magistrate might say—"I quite admit that the law has been broken; but, because I think the law wrong, I will not enforce it." A Judge might say—"There ought to be no law against poaching;" and such a man would be placed by this clause in a position to control the Legislature, by not carrying the law into effect. Probably, to Courts of Summary Jurisdiction this objection would not so much apply, for there would not be opportunities for a Justice supposing himself capable of preventing serious offences being dealt with. But his object in seeking to call attention to the clause was that he feared that if it passed the principle of it would be extended to the Criminal Code Bill, and to Bills of a similar character. He was, therefore, anxious to make a protest against its being said that through the acceptance of the clause in the present Bill the House had accepted the principle of giving Judges the power of at once dismissing prisoners if they thought the law unjust. Some of his hon. Friends, for whoso opinions he had the greatest respect, were, he knew, in favour of such a provision. He, however, took the opportunity of stating his disagreement with the clause, and protesting against its principle being applied in more important matters.
§ MR. WHITWELLsaid, that this clause enabled a Justice to pass by a rich man, and allow him to go away unconvicted by paying some expenses which were nothing to him. There was a tendency, in many Jnstances, to extenuate in favour of persons well off; he did not mean that it was always so—much to the contrary—but still they did see it, and this clause opened a door to such 98 practices, which would be very undesirable.
MR. COLEwould strongly support this clause. There were many cases in which a breach of the peace had been technically committed, but in which a man had been so provoked or outraged by the misconduct of another that he might be well excused morally, although in point of law his offence could not be justified. And there were many other cases on which a magistrate would not wish to submit a man to the indignity of a conviction, but while, at the same time, the man had really broken the law. Under these circumstances, he was most strongly in favour of the clause. With regard to the argument that there was one law for the rich and another for the poor, that was not his experience. A man who was rich, or in a superior condition in life, generally fared worse before a magistrate than his poorer brethren.
§ THE ATTORNEY GENERAL FOR IRELAND (MR. GIBSON)observed, that the clause gave the magistrates a certain discretion. It was placed in the discretion of the magistrates, if they considered that the ends of justice were met and thought fit to exercise the power, to refrain from convicting a person who had unquestionably committed a breach of the peace. That seemed to him to be a very reasonable provision.
§ MR. COURTNEYsaid, that this was not the only case in which a discretion was given to the magistrates. The Court might discharge a prisoner conditionally on his giving security, with or without sureties, to come up for sentence if called upon to do so. That was one case. But now it was proposed to give a magistrate the power to say that a charge was proved, but that the offender was not to be convicted. It seemed to him that that was a now and totally unheard of discretion.
MR. ASSHETON CROSSsaid, that anyone conversant with the practice of the magistrates' Courts would know that it very often must happen that although a magistrate thought a case legally proved, yet he did not wish to do anything. This clause was inserted to legalize what had been done before in an informal manner. He might further say that any magistrate discharging a prisoner because he disagreed with the law would be guilty of corruption in his office.
§ MR. CHARLEYremarked, that a power similar to that given by this clause was contained in the Criminal Justice Act.
§ Clause, as amended, agreed to.
§ Clause 17 (Trial by jury in case of offences triable summarily) agreed to.
§ Clause 18 (Imprisonment in cases of cumulative sentences not to exceed six months) agreed to.
§ Clause 19 (Appeal from summary conviction to general or quarter sessions) agreed to.
§ Clause 20 (Sitting of court of summary jurisdiction as a petty sessional court, and in occasional court-house) agreed to.
§ Clause 21 (Special provisions as to warrants of commitment for nonpayment of sums of money, and as to warrants of distress) agreed to.
§ Supplemental Provisions.
§ Clause 22 (Register of court of summary jurisdiction) agreed to.
§ SIR WALTER B. BARTTELOT moved to report Progress, as they were now coming to an entirely different part of the Bill.
§ Motion agreed to.
§ House resumed.
§ Committee report Progress; to sit again upon Monday next.