HC Deb 14 July 1887 vol 317 cc887-94

Order read, for resuming Adjourned Debate on Amendment proposed to Bill, on Consideration, as amended (12th July].

And which Amendment was to leave out Clause 39.

Question again proposed, "That Clause 39 stand part of the Bill."

Debate resumed.

THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)

I rise to support the omission of Clause 39, and I hope the House will not misunderstand the object of my rising. Although the clause is in no way against the interest of prisoners, yet, as it is only to relieve jurors, and involves no real principle, and as public opinion seems to be suspicious that it might injuriously affect accused persons, I have decided not to press it.

MR. J. B. BALFOUR (Clackmannan, & c.)

I agree with the right hon. and learned Lord Advocate that there does seem to be a strong feeling in the direction indicated, and I can quite understand the proposal which has been made to omit the clause. On the other hand, when I was in Office, it was found that there was a great hardship in jurors being summoned from a great distance in seed time and harvest, and it seems to me that the House should be made aware of the strong feeling which exists throughout the country on this subject.

Question put, and negatived.

Clause left out.

Clause 44 (Prevention of delay in trials).

On the Motion of The LORD ADVOCATE, the following Amendment made:—In page 15, line 29, at end, add,— Provided also, that where a person accused has been incarcerated for eighty days, and an indictment is served upon him, and he is detained in custody after expiry of such eighty days, then, unless he is brought to trial and the trial concluded within one hundred and ten days of the date of his being committed, till liberated in due course of law, he shall be forth with set at liberty, and declared for ever free from all question or process for the crime with which he was charged; provided also, that where any person accused has been liberated from prison after having been committed till liberated in due course of law, he shall not be detained in prison more than one hundred and ten days in all, but unless his trial is brought to a conclusion before the hundred and tenth day of confinement in prison subsequent to commitment, till liberated in due course of Law, has expired, he shall be forthwith set at liberty and declared for ever free from all question or process for the crime with which he was committed.

MR. FRASER-MACKINTOSH (Inverness-shire)

I would put it to the right hon. and learned Lord Advocate, whether this clause is not one which might very properly be left out of the Bill? I admit that the Amendment just made does, to some extent, remove the objection there was to the clause; but I am still of opinion that to omit it altogether would be the better course.

MR. SPEAKER

I call the attention of the hon. Member for Inverness-shire to the fact that the House has already amended the clause, and the Motion to leave it out of the Bill cannot now be made.

DR. CAMERON (Glasgow, College)

I ask, Sir, if it is not the practice first to amend a clause, and then to put the Question, "That the Clause, as amended, stand part of the Bill?"

MR. SPEAKER

That is not so on Report.

MR. J. H. A. MACDONALD

I am quite sure that everything in this clause is to the advantage, and not to the disadvantage, of the prisoner. The clause is not perfect, no doubt; but the accused person will be benefited by it, because it will enable him to bring his case into Court at an earlier date than hitherto was possible.

Clause, as amended, agreed to.

Clause 47 (Sittings of the High Court).

Amendment proposed, in page 10, line 14, after the word "necessary," to insert the words "on the requisition of the Lord Advocate."—(The Lord Advocate.)

Question proposed, "That those words be there inserted."

MR. CALDWELL (Glasgow, St. Rollox)

It is proposed by this Amendment that the High Court of Justiciary shall only hold sittings for the purposes of this Bill, for which the Lord Advocate makes requisition. It might happen that the prisoner's counsel wanted-to move the Court to fix the trial on a certain day; in that case, the Court would not have the power to do so in the absence of the Lord Advocate's requisition. That seems to me to be putting a restriction on the High Court inconsistent with the powers and dignity of the Court.

MR. J. H. A. MACDONALD

The requisition must come from the prosecutors; and if the prisoner is affected injuriously by the course taken, he has the right of applying to the Court.

Question put, and agreed to.

Clause, as amended, agreed to.

Amendment proposed, to leave out Clause 55.—(Mr. Fraser-Mackintosh.)

Amendment agreed to.

Clause 56 (Clerk to state charge and swear jury).

MR. FRASER-MACKINTOSH (Inverness-shire)

I think that in this clause the Lord Advocate is imposing on the clerk of the Court a duty which may be performed in a very perfunctory manner, unintelligible to the jury, and perhaps not distinctly heard; and, being in favour of the law as it stands, I propose to leave out the clause.

Amendment proposed, to leave out Clause 56.—(Mr. Fraser-Mackintosh.)

Question proposed, "That Clause 56 stand part of the Bill."

THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)

I cannot consent to the hon. Gentleman's proposal to leave out this clause. In England and Ireland it is the power of the prosecuting counsel not only to state to the jury the nature of the case, but to state it in an argumentative manner, and practically influence the jury by pleading before the evidence is led. What we propose is that the charge should be stated by the clerk in the form set forth in the Schedule to the Bill before the jury is sworn; and I do not agree with the hon. Gentleman opposite that this will necessarily be done in a perfunctory manner.

MR. J. B. BALFOUR (Clackmannan, & c)

I entirely agree with the Lord Advocate in his view of this matter. I think it must be within the experience of most lawyers that sometimes the laying of the indictment before the jury tends to confuse them and cause delay, owing to their studying the documents given to them, without considering the facts before them.

MR. CALDWELL (Glasgow, St. Rollox)

What the right hon. and learned Gentleman (Mr. J. B. Balfour) has just stated might apply to indictments in the present form, but has no relation to the now form of indictment that will be laid before the jury. It is impossible that any jury can misunderstand the nature of such a charge as this in the Schedule of the Bill—" You are indicted at the instance of Her Majesty's Advocate, and the charge against you is that on the 20th of June, 1888, in a shop in George Street, Edinburgh, you did steal a shawl and a boa." The new form of indictment lays the case before the jury as simply as it can be done by any Judge. I think that it would be well, and it is only a matter of small expense, as, by means of a manifold writer, the necessary number of copies of the charge against the prisoner can be easily taken, and laid before the jury. In centres where the people are not so highly educated, the statement made by the Judge of the charge is very often forgotten five minutes afterwards. It is not fair that you should alter the system of procedure in Scotland which has worked so well, and which ensures that the jury, at least, know what the charge is, and which might, in the way I have suggested, be laid before them in four or five lines.

THE SOLICITOR GENERAL (Sir EDWARD CLARKE) (Plymouth)

I believe the right hon. and learned Gentleman (Mr. J. B. Balfour) opposite is correct in saying that to place a document before the jury is likely to mislead them. An intelligent jury, such as I cannot doubt would be found in Scotland, would have no difficulty in understanding the charge stated by word of mouth; but if there should be a jury so unintelligent as not to be able to remember such a simple charge as that of stealing a shawl, for instance, I am afraid that any document you might give them would only tend to confuse them.

Question put, and agreed to.

Clause 64 (Statutory offences which are offences at common law).

MR. FRASER-MACKINTOSH (Inverness-shire)

I think that when the Public Prosecutor brings up an accused person, he should make up his mind beforehand that the indictment should be for an offence either against Statute, or against Common Law; but to give him power of getting conviction under both or either is a thing which I altogether object to, and I shall, therefore, move the omission of the clause.

Amendment proposed, to leave out Clause 64.—(Mr. Fraser-Mackintosh.)

Question proposed, "That Clause 64 stand part of the Bill."

THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)

I cannot agree to the Amendment of the hon. Gentleman. It is the present law of our country that the same narrative of facts may constitute a crime either under the Common Law or Statute Law—that is to say, one statement of facts is sufficient, provided that statement includes what is necessary to constitute the statutory and the Common Law offence. The provision made hero is, again, very favourable to the prisoner. The Judge is enabled to exercise his discretion and give a man six months' imprisonment under the Common Law, who would, under Statute, necessarily be sentenced to penal servitude for seven years.

DR. CAMERON (Glasgow, College)

There are many things which are crimes at Common Law in Scotland where convictions could not be taken, because of the difficulty of framing the indictment so as to bring it under the Common Law. That was the case with bankruptcy offences. Formerly, every offence under the Bankruptcy Law was an offence against the Common Law; but it was found impossible to obtain convictions, even in case of the grossest fraud. I mention, as an instance, that there are many things which are offences against the Common Law in Scotland that it would be very undesirable to sweep into the net of the Procurator Fiscal. For that reason I shall be inclined to support the Amendment of my hon. Friend, unless we have some further information.

THE SOLICITOR GENERAL (Sir EDWARD CLARKE) (Plymouth)

There are some agrarian offences with regard to which it has been thought right to give the prisoner the chance of convictions for the minor offence. I do not think you ought to be able to get convictions under both Statute and Common Law; that, in my opinion, would be very unfair.

MR. CALDWELL (Glasgow, St. Rollox)

At present the prosecutor may indict the prisoner either under the Statute or at Common Law. The whole question is, whether the crime is to be libelled under the Common Statute or Law? If the crime do not amount to crime under the Statute, the prosecutors are required to prove the facts as at Common Law. The Lord Advocate wishes, if the indictment fails under the Statute Law, to turn round and, without any previous notice or indictment at Common Law, to say this is an offence under the Common Law. But if you are going to ask for a verdict at Common Law, as well as the chance of a verdict under the Statutes, you must libel both in your indictment. The alternative of Statute or Common Law must put down on the face of the indictment.

MR. DONALD CRAWFORD (Lanark, N.E.)

Where a man is charged with murder, by the law of Scotland he may be convicted of culpable homicide or manslaughter. In its operation this is a merciful provision of the law. The result is that a man may got off on the lighter charge, who, if the jury were pushed to extremity and there was no alternative but acquittal, would be convicted of the graver charge. I think the Lord Advocate has put the case fairly. The proposal that if the facts of the case justify the prisoner may be found guilty of the lighter charge is in the interest of the prisoner, and is in accordance with the whole spirit of the Bill.

Question put.

The House divided:—Ayes 170; Noes 61: Majority 109.—(Div. List, No. 300.)

[1.40 A.M.]

Clause 69 (Recording previous convictions).

On the Motion of The LORD ADVOCATE, the following Amendment made:—In page 21, line 29, at beginning of Clause, insert— Previous convictions against an accused shall not be laid before the jury, nor shall reference he made thereto in presence of the jury before the verdict is returned; but nothing herein contained shall prevent the Public Prosecutor from laying before the jury evidence of such previous convictions where, by the existing Law, it is competent to lead evidence of such previous convictions as evidence in causa in support of the substantive charge and.

Clause, as amended, agreed to.

Clause 72 (Variance between indictment and evidence).

Amendment proposed, to leave out Clause 72.—(Mr. Fraser-Mackintosh.)

Question proposed, "That the words 'no trial shall fail,' stand part of the Bill."

THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)

This clause is framed with the view of preventing the escape of prisoners on mere technicalities in respect of some difference between the evidence and the indictment. Many cases have occurred in which there was no doubt whatever of the guilt of the prisoners, and yet, because there was some slight discrepancy between the indictment and the evidence which came out, the prisoners escaped. It is highly undesirable that that should take place. I quite admit that this clause was framed too broadly; but I take the example of an English Act of Parliament; and I propose, as the hon. Member will see, to insert an Amendment afterwards, which I think will take away the difficulty which existed before. We simply adapt an English Act of Parliament to Scottish procedure.

MR. ANDERSON (Elgin and Nairn)

I hope my hon. Friend will not press his Motion. The clause is one which is highly beneficial to the administration of the Criminal Law, and the Amendment of the Lord Advocate, I quite agree, will avoid any question of injustice.

Question put, and agreed to.

On the Motion of The LORD ADVOCATE, the following Amendments made:—In page 22, line 25, leave out "sentence," and insert "the case for the prosecution is closed;" in line 28, leave out all after "always," and insert— That such amendment shall not be allowed unless the court shall be satisfied that such discrepancy or variance is not material to the merits of the case, and that the person accused cannot be prejudiced thereby in his defence on the merits.

Clause, as amended, agreed to.

Bill to be read the third time upon Monday next.