§ Considered in Committee.
§ [Mr. J. W. LOWTHER (Cumberland, Penrith), CHAIRMAN of WATS and MEANS, in the Chair.]
§ (In the Committee.)
§ Clause 1 was considered.
§
Amendment proposed—
Page 1, line 7, after 'witness' insert 'for the defence.'"—(Mr. Solicitor General.)
§ Amendment agreed to.
650
§
Amendment proposed—
Page 1, line 7, leave out 'whether,' and insert 'when.'
Page 1, line 8, leave out 'or jointly with any other person.'"—(Mr. Gibson Bowles.)
MR. GIBSON BOWLES (Lynn Regis)This is a consequential Amendment. The clause proposes that a prisoner shall be a competent witness whether he is charged solely or jointly with any other person. That, in my opinion, is an entirely wrong and dangerous principle. The danger is that the Crown may charge two persons in order to terrify one into giving evidence against the other. That, of course, will not be the case in Ireland, because the Bill proposes to exclude Ireland, and its great blessing will be extended only to the courts of England. It is a very dangerous thing to give power to the Crown to let off one of the accused if he will agree to become a witness against his companion. That is what the Bill comes to, and it means making a bargain with one of the prisoners. The Crown will say to one of the prisoners, "If you will agree to become a witness against your fellow-prisoner we will let you off." That will introduce a very bad state of affairs. I see that the right honourable and learned Gentleman the Attorney General is not present. I hope he has come to the conclusion that this is a Bill he ought not to support by his presence, although he supported it by his vote. If the right honourable and learned Gentleman can make any good defence for the clause as it stands I shall be prepared not to press my Amendment, but if not I must insist upon it.
§ THE SOLICITOR GENERAL (Sir R. FINLAY,) Inverness Burghssaid the effect of the Amendment would be to give the prosecution the power by charging one man with another of shutting his mouth. It would obviate no evil, and do a great deal of mischief.
§ Amendment withdrawn.
MR. GIBSON BOWLESI desire to raise the question whether a prisoner shall, or shall not, be cross-examined. 651 There is a new clause on the Paper which raises that question. If we pass this Bill in its present shape or anything like it I apprehend that a new clause of that sort—
*THE CHAIRMANOrder, order! That question ought to be raised at a later stage. The honourable Member is not entitled to take precedence over other honourable Members.
MR. GIBSON BOWLESNo, Sir, you have not heard me. I propose to move an Amendment after a preceding word.
*THE CHAIRMANI have intimated to the honourable Member that this is not the right place to move the Amendment. I must beg the honourable Member to accept my ruling.
MR. GIBSON BOWLESI submit my right to put my case before you. You have not heard my Amendment, and cannot judge whether it is right or not. If you rule me out of order, of course I submit.
§
Amendment proposed—
Clause 1, page 1, line 9, after 'follows,' insert, 'at the close of the case for the prosecution the court shall inform the prisoner that he may, instead of giving evidence on oath, put in evidence a written statement, or make an oral statement.'"—(Mr. Lloyd Morgan.)
*MR. LLOYD MORGAN (Carmarthen, W.)said his view of the Bill as it stood was that it would force an accused person into the witness box, in order to supply a missing link in the chain of evidence for the prosecution. It was, therefore, of the utmost importance that the prisoner should understand that, if he preferred to make an oral statement from the dock, or to put in evidence a statement in writing, he might do so before his counsel addressed the jury. He attached some importance to the Amendment, because some prisoners would be convicted not because they were proved to be guilty, but because they declined to go into the witness box to be cross-examined on a variety of topics. Another reason which led him to attach some importance to this Amendment was that the practice at present in existence in criminal cases was not clear, and it was open to considerable doubt whether a prisoner was entitled, when defended by counsel, to make a statement from the dock. Some judges of great authority held that a prisoner was entitled to do so; but other judges held that he was not so entitled. It occurred to him that the present was a proper and fitting time to make the practice perfectly clear, and to have some uniformity introduced into their criminal procedure. He was sure the Committee would see that his Amendment was put down in good faith. He believed the law on this point ought to be declared and made clear. If a prisoner preferred not to go into the box and give evidence on his own behalf, he ought to be allowed to avail himself of the right to make a statement from the dock.
§ SIR R. FINLAYhoped the Committee would not acept the Amendment. The system of allowing a prisoner to make a statement had been introduced as a mere makeshift, by way of mitigating the intolerable hardship which occasionally resulted from the prisoner not being able to speak on his own behalf. Members of the House might not be aware that, for a long time, a prisoner was not allowed to call witnesses at all. Then he was allowed to call witnesses, but they were not sworn. But the makeshift of allowing a prisoner to make a statement was liable to great abuse, and particularly when the prisoner was 653 defended by counsel it seemed inappropriate that he should make a statement of the facts. It would be absurd to give the prisoner the alternative of going into the box or making a statement. They were redressing the grievance by allowing the prisoner to give evidence. It would be better not to introduce into the Bill the Amendment of the honourable Member for Carmarthen, which he thought was both unnecessary and mischievous.
§ MR. DILLONI am anxious to say a word or two upon this Amendment, because I desire to show the great harm which it may do to the prisoner. This question has been debated year after year, and discussed in the columns of every newspaper in the whole of the country. Sir, I think the Government, if they are determined to carry this Bill through, as I presume they are, ought to be exceedingly careful that with the expressed intention of improving things they do not make them worse. I cannot imagine for a single moment but that in the case of a perfectly innocent person it would be preferable to allow him to go into the witness-box and be examined, I can well conceive that a man, and still more a woman, charged with a crime, and perhaps lying in gaol for weeks or months, would slink from the ordeal of going into the witness-box. But, if a prisoner refused to go into the witness-box his fate is sealed practically, because we know that any jury will convict a person if he shrinks from going into the witness-box to tell his story or refuses to answer questions. I have seen witnesses under cross-examination who I am perfectly certain intended to tell the truth, get tied up into a knot, contradict themselves, and ^break down in utter confusion, and if they had been on their own trial their conviction would have been, an absolute certainty. I say that if the Crown are determined to carry this Bill they ought to be zealously anxious to see that under a Measure of this nature, intended to give an innocent man a chance of getting off, they do not rob him of some right which at present is valuable to him, and substitute another privilege which, in many cases, would be no privilege at all. I take it from the Solicitor General's answer that the intention of the Government is that having given the prisoner a 654 right to appear on his own behalf he will never be allowed again to make a statement. For these reasons I earnestly support the Amendment.
MR. GIBSON BOWLESI think it shows the absolute weakness of the argument of the Solicitor General when he says that nobody will know of the existence of this provision after the Bill has passed. Sir, that argument, if the Solicitor General will pardon me for saying so, is simply childish. It is absurd to say that the provisions of this Bill will not be made known to every juryman. Now, Sir, as to the question whether the prisoner should or should not be allowed to make a statement. I know it is held by many eminent judges that the prisoner at this moment has a perfect right to make any statement he pleases, whether he is represented by counsel or not. There are other judges who hold the contrary view, or, at any rate, will not permit the statement; I think that is putting it more accurately. But even those judges who deny to the poor prisoner in the dock the right to make his own statement and tell his own story, do not go so far as to say that there is anything in the law that deprives prisoners of that right; they only say that they will not allow it. Under these circumstances is it not desirable that the prisoner should be endowed with the right of making his own statement, for that is important either before the magistrates or before a court of summary jurisdiction. And here I may say that I can quote the opinion of Sir Henry Hawkins, a most eminent judge, whose opinion with regard to this Bill is all the more valuable, because he was at first in favour of the principle, but now, after having seen that principle at work in several of the Statutes, he has turned as strongly against it as he was formerly for it. Sir Henry Hawkins' opinion was published in the newspapers on the 31st of March, and I am glad to say that what I have stated does represent the views of the learned judge. He says that there is a great abuse in bottling up the defence of the accused, and an innocent man is placed at a very great advantage by being able to say what his defence is, so that it may be inquired into and the facts proved. A witness may be brought before the court, and the man's position is very much improved in the mind of the court by having 655 stated what his defence would be. Sir Henry Hawkins has proposed that there should be embodied into law an absolute obligation on the part of the court—somewhat of the same character as exists under the Summary Jurisdiction Act—to tell the prisoner that he is able to make a statement if he likes, and that the statement that he makes will be inquired into, and witnesses called in support of that statement if they are forthcoming. An eminent legal authority has stated that the difficulty which innocent persons experience in our criminal courts might be materially reduced by amending the procedure before the magistrate. Usually they reply, "I reserve my defence"; but the suggested Amendment would be to request the magistrate to impress upon the prisoner that he need not say anything, as any statement he made might be used against him. That is the proposition embodied in the Amendment now before the Committee; and what is the objection to it? Why should you not let this unfortunate prisoner, standing in the dock, with everything against him and no counsel, at the earliest moment know the exact position in which he stands. There is in practice, though perhaps not in law, a doubt as to whether the prisoner is to be allowed to make a statement. Most of the judges, I think, will allow him, but others will not, and this Amendment will set that point at rest. It will place the prisoner in the position in which he ought to be placed, namely, that of being informed of what he may do and what he has a right to do, and of the effect of it. All it amounts to is this—"You can make a statement if you like." Now, what earthly objection can there be to that? The gentlemen on the front Ministerial Bench profess their anxiety to give an innocent man an advantage when being tried for his liberty and his life, and here is a most reasonable step which nobody can object to, that of telling him that he has a right to make a statement if he likes; and yet the Solicitor General says that this step would put an important secret into the possession of the jury, and give them the right to cross-examine the prisoner. Sir, such a defence as that is absolutely childish, and I defy anybody to bring forward an argument to show upon what grounds you deny the prisoner this right. He is 656 probably an innocent man, and he does not know one thing from the other, or the serious facts which are alleged against him, and probably he is not aware of the nature of the charge. These charges are worded in strictly legal jargon, and if he does hot know all those things he is at a great disadvantage. You owe every consideration to an unfortunate, ignorant, muddled man standing in the dock, and the very least you ought to do for him is to tell him the exact position in which he stands, and tell him what his rights are. I do strongly urge the justice of this Amendment, and if there is no better argument to be advanced against it than that which the Solicitor General has used, it ought to be passed.
§ MR. E. CARSON (Dublin University)I am very much surprised at the announcement made by the Solicitor General, because, up to the time I heard that announcement, I was of opinion that this Act did not mean to take away any right which at present exists, and I thought that was the intention of the Government. In point of fact I understood that this Bill we have now got was brought forward in favour of the prisoner. But, Sir, what is the construction of the Act that the learned Solicitor General has put upon it? I myself have formed another opinion. The Solicitor General says, "We do mean to take away from the prisoner the right of making a statement of his view of the case without being cross-examined." Sir, at all events, we have now got to the end of the pretence that this Bill was introduced for the purpose of giving any additional benefit to a prisoner, because we have now had it stated by the law officers of the Crown that no longer will the prisoner have the same right as at present, but that right is now taken away from him. That is an important matter, and it puts the Bill in a somewhat new phase, and I think we ought to see how far we are really going to take away the old-established right of a prisoner. The Solicitor General seems to think that we are not interfering with rights which have existed since the time of Queen Anne.
§ SIR R. FINLAYI did not say so.
§ MR. CARSONAt all events, he described this right as a makeshift. Is he 657 able to make us any quotation to show that it is a makeshift? So far from its being a makeshift, it is a right which has existed, and which has been recognised by the law for many and many a year, and although there have been questions as to whether a prisoner who is represented by counsel, who can put his case for him, shall be allowed also to state his own view, the right has never been questioned, so far as I know, where a prisoner represents himself, and whether he has or has not the same right when defended by counsel, I think the judge has always allowed it. We can all call to mind the Maybrick case, where the case of the prisoner was conducted by counsel. After her counsel had finished, Mrs. Maybrick was allowed to read a statement herself from the dock. Therefore, let us not lightly dismiss this in the argument of the Solicitor General, that we are dealing with a makeshift. We are dealing with a right which has been recognised for many years. It is a right which has been acknowledged by Parliament in the Summary Jurisdiction Act, under which the judge is compelled to ask the prisoner whether he has anything to say. That is an acknowledgment of an existing right. Therefore, it comes to this, that we are going to take away the old-established right of the prisoner to put in a statement upon which he cannot be examined. If we are going to do that let us do it with our eyes open. The position of affairs when this Bill is passed will be that a prisoner will no longer be able to tell his story in his own way, and the only way in which he will be able to put his case before the court and the jury will be that he must come forward as an ordinary witness and be examined and cross-examined, whether he be defended by counsel or whether he be defending himself. I do think, at all events, that we ought to declare what this Amendment really does, that the prisoner shall be able to take his choice of whether he will act under the provisions of the Bill, or preserve the right which he at present has; whether he will simply make his statement as at the present time, or whether he will allow himself to be cross-examined under this section. I hope the 658 honourable Member who moved this Amendment will press the matter to a Division, and, if he does, he shall certainly have my support.
§ MR. S. EVANS (Glamorganshire, Mid)This Amendment touches the crux of the Bill. In the next two lines of the Bill, in sub-clause A, the Government hold this to be the law, "that a person shall not be called as a witness in pursuance of this Act without his consent." That is the object of the Government, but they make it impossible for him to withhold his consent. What they do is to compel him to give evidence, and submit himself for cross-examination. A great deal of my objection to this Bill would be removed if the Government would undertake in the subsequent lines of the clause to protect an innocent prisoner, and, indeed, the prisoner who may in all probability be guilty, from cross-examination. It is an utter fallacy to say that an honest person need not fear cross-examination. Let us look for a moment at the state of things in court on the trial in the one case of an innocent person, and in the other case of the person who is guilty. The person who is guilty is most probably a gaol-bird, and he knows perfectly well what the proceedings in a court of justice are—what they are like. He can stand in the dock in cold blood and have all his faculties about him. But the honest person is the man who cannot stand in cold blood in the dock; he has probably never been in a court at all before. We have often heard it said when statements are made by persons in court, "This is the first time I have ever been in a court," and this is the class of person whom you would naturally expect to be in a confused state of mind. But, notwithstanding that state of things, the Government opposes this most reasonable Amendment that you shall allow a person of this kind to make his statement—which he may have prepared possibly in his cell, or, if he has been allowed bail, at his home; which he has made in cold, blood, with all the circumstances clear before him, and without being confused by being in court. When he is confused by being brought before the judge and jury, you certainly ought to allow him to 659 make his statement in the ordinary way unless he elects to submit to ordinary cross-examination. I was very much astonished to hear the right honourable Gentleman the Solicitor General say that this right, which is supposed to be existent, of the prisoner to make his statement whether defended by counsel or not, would be taken away by this Bill. That is a most serious state of things without doubt. One of the most eminent judges in the land (Sir James Stephen) said that it was the right of every prisoner, whether defended by counsel or not, to make a statement on his own behalf; and one has often seen—I saw only the day before yesterday a prisoner in the dock, who was afterwards acquitted, hand up his statement to the judge, and the judge, in order to relieve the prisoner, himself read the statement to the jury. Now, I think it is a very heartless thing to oppose an Amendment of this kind when we have this sort of non-possumus answer. What the Government practically say is that whatever authority may be attached to the argument of this side of the House is that they cannot accept this Amendment, not because there is nothing to be said in favour of it, but because they have such a large majority at their back they will pass the Bill in the way in which it is framed. Now, the prosecuting counsel may point out to the jury and comment upon the fact that the prisoner had declined to go into the witness-box; if it is thought that the prisoner is screening himself from some admission which he would have to make in cross-examination it would still be open to the judge or the prosecuting counsel to call the attention of the jury to the fact that he had elected to put in a statement instead of giving evidence on oath. This is a perfectly reasonable Amendment, and one by which it is only desired to protect the prisoner, and the desire of the Government is not to do it. Their desire is to worm out of the prisoner if they can some point, or some fact, which they have been unable to prove on behalf of the prosecution. It is an attempt to bring the law of this country to the state of the law of France, where you have a right, however innocent and con- 660 fused the prisoner may be, to turn him inside out in order to supplement the case which you have not been able to prove. This is an attempt to subvert the law which has been established for centuries, and I hope when we go to a Division my honourable Friend will receive hearty support.
§ MR. R. WALLACE (Perth)What is there in this Bill which takes away the right of the prisoner to hand in a statement if he so elects? I cannot find anything in the Statute which we are now discussing which does that, and I should like to put the question to the Solicitor General.
§ SIR R. FINLAYMy honourable and learned Friend is aware that the privilege of making these statements is one which has been introduced by the judges to mitigate the hardship upon the prisoners through their inability to give evidence. The practice at the present time is not quite uniform in cases where prisoners can give evidence, because one judge, at all events to my knowledge, allows the prisoner an option of making a written statement in cases where the prisoner can give evidence. What I said has been carried beyond what my words conveyed. What I said was that now the prisoner is to be allowed to give evidence that reason for the privilege of making statements has ceased. My impression is that in the working of the Act the liberty of making these statements will be much curtailed. Although I think the Amendment before the House is one that cannot be accepted by the Government, I think words might be introduced in somewhat of the following shape, "Provided that nothing in this enactment shall prevent the person charged from making a statement as heretofore if he so desires."
§ SIR R. REID (Dumfries Burghs)I am very glad to hear that, because I think it would be a most desirable thing. There is only one other word I wish to say. The Solicitor General proposes to insert a provision to practically leave the law in the same position as it stands at present, but he has already pointed out that the practice 661 is more or less doubtful at present. The right honourable Gentleman said, and I think it is perfectly true, that the practice is not uniform. Under those circumstances would it not be well also, while we are about this matter, to make the practice clear?
§ SIR R. FINLAYI think what has been said has been very important, and I think the way to deal with this would be to put it in the form of a clause, and I shall bring in a clause dealing with this suggested alteration at a subsequent stage.
*MR. LLOYD MORGANAfter what has fallen from the right honourable Gentleman the Solicitor General I bear leave to withdraw my Amendment.
§ The Amendment was, by leave, withdrawn.
§
Amendment proposed—
Page 1, line 11, leave out 'without his consent' and insert 'except upon his own application.'"—(Mr. Nussey.)
§ MR. NUSSEY (Pontefract)The object of this Bill, as I understand it, is not to force the prisoner to give evidence against his wish, and still less to compel the wife or husband of a prisoner to be a witness for the prosecution. As the Bill now stands, a prisoner can be asked by the prosecuting counsel, in the presence of the jury, "Do you' consent to give evidence, or do you consent to your wife (or husband) giving evidence?" and if the prisoner objected there would be a feeling of prejudice at once created in the minds of the jury, and in the hands of a clever prosecuting counsel this fact would be used to obtain a conviction against the prisoner. This Amendment, after all, is merely a verbal Amendment, and would not make any difference with the Bill, and I trust the Government will see their way to accept it.
§ SIR R. FINLAYI am not quite sure whether the words "except upon his own application" are more applicable than "without his consent." I think the words of the Bill are the better, but I will accept the Amendment.
§ The Amendment was agreed to.
662§ MR. GALLOWAY (Manchester, S.W.)Upon a point of order, Sir. In the Amendment Paper, Sir, I have put down a new clause, which, I think, upon reconsideration, should come in after the word "consent"—
No person charged with an offence and called as a witness in pursuance of this Act shall be cross-examined by the prosecutor or counsel or solicitor for the prosecution.
*THE CHAIRMANI think that might very properly come in as a new paragraph between paragraphs (b) and (c).
§
Amendment proposed—
Page 1, line 9, after 'follows,' insert 'the court shall inform the prisoner that, if he gives evidence on oath, he will thereby render himself liable to be cross-examined.'"—(Mr. Lloyd Morgan.)
*MR. LLOYD MORGANThe prisoner ought to have two courses open to him. In the first place he should be allowed to make a statement; secondly, to go into the witness box; and, thirdly, that before doing so he should have an intimation from the judge that he need not go into the witness-box unless he like. The judge, in my opinion, should inform the prisoner that if he does go into the witness-box he is liable to be cross-examined, as any other witness, and before the prisoner goes into the box he should be informed of the position in which he is placed.
§ SIR R. FINLAYI would remind the honourable Gentleman that having adopted the words of his previous Amendment this one is not necessary.
*MR. LLOYD MORGANI quite appreciate the observations of the right honourable Gentleman, and beg leave to withdraw my Amendment.
§ The Amendment was, by leave, withdrawn.
§
Amendment proposed—
Page 1, line 11, insert 'and the failure of any person charged With an offence, or the wife or husband, to give evidence, shall not be made the subject of any comment by the prosecuting counsel or solicitor, or by the court."—(Mr. Lloyd Morgan.)
*MR. LLOYD MORGANThe, next Amendment standing in my name is one which I regard as a most important one. 663 As the Committee will see, it is one which provides that the failure of any person charged with an offence to give evidence, shall not be made the subject of any comment by the prosecuting counsel or solicitor who has charge of the case, or by the court, I am not going to trouble the House with a long speech upon this subject, but it seems to me that we have now got to the real crux of this question, because, if the refusal of a prisoner to go into the box is going to be made the subject of comment by the prosecution, one knows at once that this Bill is not a permissive Measure, but one which will in practice mean that a prisoner will be compelled to go into the witness-box. It is absolutely unnecessary to say that if the prisoner elects not to go into the witness-box, and this fact is made the subject of comment to the jury, who will draw conclusions from the absence of the prisoner from the box almost as damaging to him as if he had gone into the box and practically admitted the offence on which he is being tried. It is all very well to say that the principle of our law is that the prosecution has to establish the guilt, and not the prisoner to prove his innocence. That is the theory of the law, but it would be practically useless to tell a jury so if you allow counsel for the prosecution also to tell them that the prisoner was entitled to go into the box and give his explanation, but for some reason or other he was afraid to face the ordeal of cross-examination. If the prisoner elects not to go into the box it is open, as the Bill stands, for the prosecuting counsel to point out to the jury that if the prisoner liked, and was an innocent man, he could have gone into the box and cleared his character, and could have explained the circumstances of the case or his movements upon a particular occasion; but because he has not gone into the box, the jury will be asked with great force to infer that he is guilty of the offence with which he is charged. Now, it seems to me, in dealing with a great change in legislation like this, we ought to safeguard the position of the prisoner. I remember that upon the Second Reading of the Bill I made use of this argument against the Second Reading, and in my judgment the argument is a sound one, 664 but I was told from the other side of the House that judges and counsel and solicitors in this country conduct the cases with such absolute fairness and impartiality that nobody would ever dream of commenting upon such a circumstance. Honourable Gentlemen may say that if they like, but I have spent many days in courts where the criminal law is administered, and I have frequently heard counsel say, "Why has not the prisoner gone into the box?" It is idle to tell me it is not the practice. It is a practice-that has prevailed in this country since the passing of the Criminal Law Amendment Act, and when this Bill becomes law it will be done every day, and be made use of to convict men who will be convicted, not because the prosecution have established their case, but because the prisoner for some reason which may be capable of explanation, has not gone-into the witness-box. I will not trouble the House with any further observations upon the subject. I have said enough to show the drift of my contention, and I think that men, placed in such painful positions as prisoners are, should have some protection at our hands.
§ SIR H. FOWLER (Wolverhampton, E.)I propose, before the right honourable Gentleman replies on behalf of the Government, to say a few words. I was very much surprised to hear my honourable and learned Friend say that this practice prevailed in some of our courts of commenting upon the refusal of a prisoner to go into the witness-box. I think that is a very unjust proceeding, and very unfair, and I am bound to say that I was always under the impression that our most eminent judges would not allow it, and that eminent members of the bar would not adopt the practice, or allow it to be adopted. But, even it be so, I am satisfied that some judges would not allow it, and I think it is desirable that it should be settled once and for all, and for all classes of courts, not only those in which our eminent judges administer justice, but those also presided over by lay judges, and I hope the Government will see their way to allow these words to be inserted. I am not against this Measure—I have always been a strong advocate for it; but I think it would be 665 a very unfair position in which, to place a man who wished to tell his own story in his own way, and I do not think it is fair to allow either judge or counsel to comment upon his refusal to go into the witness-box.
§ SIR R. FINLAYCertain considerations ought not to be lost sight of in this matter; the first of which is that there are a great many Acts now in force under which an accused man can give evidence, and it has net been found necessary to introduce any such provision, and there is no case which I am aware of where such a provision has been missed. I feel very strongly that in a vast number of cases it might be a matter of great hardship to the accused that such, observations should be made because he refrained from going into the box, because there might be many reasons which might prevent him doing so. But do not let the Committee be led away by the belief that there are not some cases where the declining of a prisoner to go into the witness-box is not a legitimate element in determining the question of guilt or innocence. Supposing that a man has set up a plausible tale involving aspersions upon the character of a witness called to swear to his identity—supposing that if that tale were true it could be established by his own evidence, and supposing that man, with every advantage of counsel defending him of intelligence and position, elects deliberately not to go into the witness-box in support of the theory put forward for his defence, then I defy any man, any reasonable man, to exclude from his mind that circumstance when coming to a conclusion of the guilt or innocence of the accused. To attempt to set up this Amendment would establish a highly artificial state of things. In a case of this kind the judge and counsel may come to the conclusion that there are many reasons why a prisoner should not go into the witness-box other than his guilt. I believe the feeling of the bench, and the bar, magistrates, and solicitors who practise before them, would prevent the power of comment upon the absence of a prisoner from the witness-box being abused; and I feel very strongly that there are cases where such 666 an enactment as this which is now proposed would do a serious injustice. There was a case which was decided by an eminent judge a little while ago in which a very gross offence was charged against a man. A theory for the defence was set up, and the judge told the jury, and I believe rightly told them, that if the tale which had been told on the prisoner's behalf, and the evidence given for him were true, he could have given most material support to it from the witness-box. Although I agree that in many cases it would be a hard thing that such comments should be made, there is, a residue of cases where it cannot be excluded from the minds of the jury and the court. If the Amendment be accepted, it will set up an artificial barrier which could not be maintained, that idea would be present in the mind of everyone, although they might not refer to it. Supposing this enactment were passed, how is it to be enforced? Is a judge who uses an expression in relation to the absence of a prisoner from the witness-box to be liable to be proceeded against for dereliction of duty? Is a counsel, who drops an expression in connection with it, to be guilty of contempt of court? All that is valuable in the rule that is sought to be set up would be maintained by the good feeling of the bench and of those who practise at all the courts to which this Act will extend. There is only one other comment. It is this. I know on the most excellent authority—there are those present who can inform the Committee of many such cases—and the Committee knows that there are many cases in which prisoners can now give evidence, and I believe it is actually a common thing for the judge to tell the jury that they must not let themselves be prejudiced by the fact that the prisoner has not given evidence. I am sure that that is most excellent advice. I am informed by the Recorder of London that it is so. My honourable Friend the Member for Glamorgan shakes his head, but I think my information is correct, and if this Amendment were carried, it would actually make it impossible for the court to tell the jury that they must not draw any unfavourable inference from the absence of the prisoner from the box. I do submit to the 667 Committee that it would be a mistake to attempt to express in an enactment a sentiment of this sort. If you attempted to formulate it into a rigid rule of this sort you would be doing very grievous injustice in a certain number of cases, and I doubt whether in these cases the rule could possibly be carried out.
§ SIR R. REIDI hope the Solicitor General has not said his last word. This Bill has been supported by a great many upon the ground that it will shield the innocent, but it has not been supported by any of us on the ground that it will provide a spear to use against the prisoner. I object to anything in the Bill which shall prejudice the opportunities that the prisoner at present has—his immunity in any sense from being subjected to any kind of professional torture. I think it would be a most unfair thing in all cases, in almost every case, that the absence of a prisoner from the box should be the subject of adverse comment from either the bar or the bench. I do not think—highly as I honour my own profession, and the judicial bench and the magistrates, in their desire to do justice—I do not think it should be left to the good faith, or the good feeling, or the kindness of either judges or of the members of the bar, to carry out that which I believe, to be essential to the administration of justice. It is for that reason that I hope the Solicitor General will listen to the suggestions made to him on this point. The Solicitor General has very largely agreed with what has been urged. I do not think for the sake of securing the success of the prosecutions in a small residue of cases that we ought to depart from the general practice, and so I trust we may prevail upon the Solicitor General to reconsider this.
§ MR. BROADHURST (Leicester)The learned Solicitor General at one part of his speech appeared to me to be willing to undertake the consideration of this appeal that has been made to him. He said that there was only a residue of cases where advantage would lie. What I want the Solicitor General to remember is this, that he has given way and accepted a very reasonable Amendment of my 668 honourable Friend near me as to the opportunity being given to the prisoner to state his case on oath, or, as he now does, without the liability to cross-examination. If he does not make some concession in this case, the concession he has already made will be rendered almost valueless, and the advantage which appeared to be given to the prisoner will be taken away. I hope that the Solicitor General will now be able to give the Committee some assurance, if he cannot see his way to accept these exact words, that he will at a later stage endeavour to make some provision to make the rule absolute and general to prevent reference to this subject. If the learned Solicitor General would do that, I think the Committee seems in a reasonable state of mind to proceed with considerable rapidity with the Bill.
§ *SIR C. HALL (Finsbury, Holborn)I quite see the difficulty of drawing a hard and fast line, and the difficulty is apparent when we come to look at the words of the Amendment itself. These words practically prevent the court telling the jury that they ought not, because a prisoner has not given evidence, to draw an inference against him on that account. It is a matter of frequent occurrence. I have frequently had cases before me under the Criminal Law Amendment Act where I have had to tell the accused person that he had the right to give evidence; but, directly I tell him that, the jury know it, and if he elects not to give evidence, the jury is apt to be strongly biassed against that man. Therefore, if a man elects not to give evidence, I invariably make it a point to tell them that they must not judge it against him that he has not given evidence, because there may be many reasons why he should elect not to give evidence. He may have done so because of nervous apprehensions and many other reasons. I have known many oases, I should like to add, where the defendant has not elected to go into the witness-box, and the jury has acquitted him.
§ LORD EDMOND FITZMAURICE (Wilts, Cricklade)The honourable Member for Londonderry yesterday alluded to a letter which Lord Ludlow, a very distinguished judge, wrote, I think, to the Times newspaper in regard to the various points in this Bill. I am anxious, having the honour to serve as second chairman to the court of quarter sessions of which Lord Ludlow was first chairman, to say a few words on the Amendment, because I know it is one on which he has very decided opinions. It so happens that Lord Ludlow is a strong supporter of the Bill, and has always charged the grand jury in my country as to the necessity of an improvement in the law. He also pointed out that there were certain Amendments to the Bill which he would greatly wish to see added to it. Had it not been that circumstances prevented him, he would himself have moved Amendments substantially identical with the Amendments now before the Committee. Lord Ludlow is a judge of great experience, especially in criminal law, in all branches of this question. Now, if I recollect Lord Ludlow's method accurately, he pointed out what has fallen from the honourable Gentleman who has just addressed the House, that it would be quite sufficient to leave the matter of the appearance or the non-appearance of the prisoner in the witness-box to the jury, who are perfectly capable of drawing their own conclusions in the matter. I could not help thinking as I listened to my honourable Friend opposite that the mover of the Amendment has every right to claim his vote after his speech, because his speech was entirely in favour of the Amendment. These are the observations I desire to lay before the Committee; and I can only say that, having presided over a court of quarter sessions for 11 years, I hope I may add a very humble tribute upon this question. I cannot help thinking that this Amendment would be a very great improvement to the Bill, and that if it were accepted by the Government, it would very materially facilitate the passage of the Measure, and tend to advance our proceedings.
§ MR. ABEL THOMAS (Carmarthen, E.)As an earnest supporter of this Bill I sincerely hope that the Government will accept this Amendment, or 670 something similar to this Amendment. Many of the difficulties of the Measure referred to by the Solicitor General would be obviated at once by adding to this Amendment, "to the prejudice of the prisoner." I have appeared in cases where the judge, or the recorder, or the chairman of quarter sessions has made comments to the prejudice of the case of the prisoner at the bar. I know from my own experience over and over again, that before certain judges on the Bench one dare not refuse to call the prisoner, because one knew what observations the judges would make. On the other hand, there was one judge, of whom one must speak with respect as regards criminal jurisprudence—I refer to the late Mr. Justice Stephen—who never did comment upon the fact that the prisoner was not called into the witness-box. And I know two living judges whose conduct has always been the same. I do not like to make distinctions in matters of this kind, but one of them is known to many of us in this House—he is in the Court of Appeal; but there are other judges who invariably will comment. This Bill gives the innocent man a better chance of showing his innocence, and I cannot help thinking that, if the Attorney General and the Solicitor General had had as much experience as some others in ordinary criminal cases, in which the prisoners are able to give evidence, they would see the absolute necessity of some Amendment of this kind. I sincerely trust that they will see that this is urged not by those who object to the Bill, but by those who are strongest in its favour.
§ *MR. A. K. LOYD (Berks, Abingdon)I desire to add my voice to those which have expressed a hope that the Government will be able to protect a prisoner against any adverse comment upon the mere fact of his non-appearance in the box. I think that all those who have supported the Government in bringing in this Bill have felt that they were supporting a Bill to prevent an innocent person who was able and willing to give evidence on his own behalf from being deprived of the opportunity of doing so. But we have remained aware of the fact that it is not merely an innocent man both willing and able to give sworn testimony with confidence whom we have to think of. We have to think of an innocent 671 man who would be willing, but who might not feel able, to give evidence with composure under circumstances of suspicion, or face the ordeal of cross-examination for reasons unconnected with the precise charge under investigation. I do think that it is of vital importance to this Bill that there should be some provision against any comment whatever adverse to the prisoner being made upon his non-appearance in the witness-box. The Recorder of London has set an excellent example in his own court, and I wish some words could be put into the Bill to make it necessary, where the trial is by jury, for the court to follow the excellent practice which his long experience has led him to adopt. I hope the Government will accept this Amendment, with the alteration necessary to obviate the defect which the Recorder of London has pointed out. And I would even ask them to go one step further, and add words requiring the court, where the trial is before a jury, to charge the jury that no inference adverse to the prisoner should be drawn from the mere fact of his not choosing to go into the witness-box and submit to cross-examination.
§ SIR R. FINLAYWe have had at great length a very interesting discussion. What is the result of that discussion? I think we may very fairly enact that the absence of the prisoner from the witness-box shall not be made the subject of adverse comment by the prosecution, but when you come to the court I confess I do not feel prepared to accept these words, "or by the court." You have, for instance, a case brought before a very eminent judge, who is absolutely impartial between the prosecution and the prisoner. He sees that the case set up by defendant's counsel may most grievously reflect upon the character of other people. He sees that one element in determining whether the story is true or false is that the man who of all others can give evidence of whether it is true is the prisoner. Is a man in the position of the judge to be debarred from voicing the feeling anyone must have in reference to the case? I would remind the Committee that there are a great many cases of this kind where the prosecutor is just as much on his trial as the prisoner. It is very often the case where, if the defence succeeds and 672 the man is acquitted, it means the ruin of the prosecutor for life. I do ask you to consider, in dealing with the interests of the prisoner, whether you may not be running to the opposite extreme. Is it not right to leave in the hands of such an impartial person as the judge the right of making such comment as he thinks fit? If we could accept a proviso that the circumstances alluded to shall not be made the subject of adverse comment by the counsel for the prosecution, that would be a sort of indication that it is only in special circumstances that such comment is to be made. There are cases where the result might be, not a hardship to the prisoner, but a hardship and a grievous wrong and injustice to a perfectly innocent man, out of misplaced sympathy with the prisoner.
§ MR. CARSONThis is a very important Amendment. There is one consideration to which I would call attention. If you enact that the prosecuting counsel should not comment adversely on the fact of the prisoner not being called there will be a predicament. The question of his not being called will not arise during the trial at all, and the persons who are defending the prisoner will be in this predicament, that they will not know until the case is closed and the judge comes to sum up whether the absence of the man from the witness-box is going to be made a matter of comment. It is possible that he would have some answer to give; he might have criticism in regard to the matter. There are very few cases in which it would be necessary or proper for a judge to comment adversely on the fact that the prisoner did not avail himself of the opportunity of going into the box. I do not in the slightest degree desire to say one word against the court or the administration of justice by either judges or magistrates, but I do think anybody defending a prisoner would feel that he had been badly treated if the whole case had not been mentioned and the judge took it upon himself to make an adverse comment on the prisoner which neither the prisoner nor his counsel had an opportunity of replying to.
§ THE ATTORNEY GENERAL (Sir R. WEBSTER,) Isle of WightIf this Bill were passed, a counsel who should 673 elect not to call his client would, of course, make some explanatory reference to the circumstance in his address to the jury. He would then be in a position to comment or give reasons for the absence of his client from the witness-box. It is really not possible for a learned judge at the close of a case to spring upon the court any observation unless he has been invited by the defending counsel himself. But there are exceptional cases in which justice demands that, something having been said by the defending counsel, the judge should allow comment in a judicial manner. That seems to be entirely in accordance with what is necessary; I do not see any danger. I point out that the fact that there is on the Statute Book a direction that it is no part of the duty of a prosecuting counsel or solicitor to make adverse comments amounts to a statutory declaration that that is the normal condition in England, and that it is only in exceptional cases that it would be permissible. I beg with great deference, in the presence of my right honourable Friend, to say that I am satisfied that there would be no risk of danger to the prisoner.
§ MR. S. EVANSI should like to say a word or two on this point, although I do not desire to prolong the discussion to any great length. I think it is desirable that until we reach the Report stage we should keep an open mind upon the subject, especially after what has been said by the Attorney General. Undoubtedly there is much in what has been pointed out, that when you put a declaration of this kind in an Act of Parliament it will be an indication to everybody that they should not, except under the most strenuous circumstances, take cognisance of what has been done in this respect. I ask that there shall be kept an open door until the Report, for this reason. It is not intended that this should be an enactment against the prisoner in any way, but rather that it should be a Bill entirely in favour of the prisoner, and this obviously is not in favour of the prisoner at all, but must subject him to adverse comment at some stage of the trial. Having said so much, I must thank the Government for the small mercy they have suggested, and recommend my honourable Friend to 674 make certain verbal alterations in the phraseology of his Amendment.
*MR. LLOYD MORGANI will ask leave to withdraw my Amendment after what has been said by the Solicitor General, and because I think the Government have fairly met the object I had in view.
§ Amendment withdrawn.
§
Amendment proposed—
The failure of any person charged with an offence, or of the wife or husband, as the case may be, to give evidence, shall not be subject to any adverse comment by the prosecution."—(Sir R. Webster.)
§ SIR R. WEBSTERI think it is better to say "by the prosecution" than "by the prosecuting counsel, or solicitor, or by the court."
§ Amendment agreed to.
§
Amendment proposed—
In line 14, sub-section (b), after 'the wife or husband of the person charged shall not, save as in this Act mentioned, be called as a witness, in pursuance of this Act without,' to insert 'without his or her consent,' before 'the consent of the person so charged.'"—(Mr. Lloyd Morgan.)
*MR. LLOYD MORGANMy object in moving this Amendment is to prevent a wife or husband being made a compellable witness against one another. It seems to me that the Government cannot intend to insist upon the wife or husband being called against their own consent in order to convict one another; but as the Bill stands I think that might be done, and therefore I move my Amendment.
§ SIR R. WEBSTERPerhaps I may make an explanation. I think, in view of the Amendment I have suggested, that this case cannot possibly arise, and I have provided specifically in the sub-section that the wife shall not be a compellable witness against her husband. I am entirely with the honourable Member, but I do not think this Amendment is necessary.
*MR. LLOYD MORGANI am afraid it would give rise to some ambiguity if the law remains as it is at present without 675 this Amendment, and it seems to me to be very objectionable to provide in criminal practice that in one set of cases the wife shall be compelled to give evidence without her consent, and that in another she shall not be. Whatever the law may be, I think it ought to be made uniform.
MR. GIBSON BOWLESI understand that there is a disposition on the part of the Government to consider this Amendment before the Report, but I would make one suggestion to the Attorney General. He seems to think that a man should be allowed to call a wife as a witness in his own defence, although she is an unwilling witness. The prisoner might drag her into the witness-box in order to give evidence in his favour, but I think such a case is not likely to arise, because, as a rule, unwilling witnesses are not called into the box to give evidence on behalf of a prisoner. As the Government are willing to consider the point, I think we may be satisfied.
*MR. LLOYD MORGANSince there seems to be some doubt upon this point, and as the Government are prepared to consider it between this stage and the Report, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§
Amendment proposed—
Page 1, line 14, to leave out, 'without his consent,' and insert 'except upon the application.'"—(Mr. Nussey.)
§ Amendment agreed to.
§
Amendment proposed—
Page 1, line 14, after 'person so charged,' to insert the following new paragraph: 'No person charged with an offence, and called as a witness in pursuance of this Act, shall be cross-examined by the prosecutor or counsel or solicitor for the prosecution.'"—(Mr. Galloway.)
§ MR. GALLOWAY (Manchester, S.W.)Sir, I think this is an Amendment of considerable importance, and it is one which I hope the Government will see their way to accept. It is admitted that the object of the Bill is to assist the 676 acquittal of innocent prisoners. Now, I submit, Sir, that it is necessary that innocent prisoners should not be subjected to prejudice by cross-examination on the part of counsel. I venture to think that there is grave danger that an innocent prisoner, either through fear or from being unaccustomed to being in that position, may, with all desire to tell the truth, so tell it as to prejudice the judge or the jury against him in the answers which he gives to the questions which may be put to him. We have had, if not many, yet some instances in which appeals have been made to the clemency of the Crown, and successfully made to the Crown, on the ground that the judge by his summing up prejudiced the jury against the prisoner. Now, I submit that, if a person so exalted in his position as a judge may take a prejudiced view against a prisoner, it surely is not unreasonable to assume that very likely that may happen in the case of a prosecuting counsel. I think that, in fairness and justice, we ought to afford the innocent prisoner this protection.
§ SIR R. WEBSTERI do not think it is possible for us to accept this Amendment, for the real ground of this Bill, which I have always advocated, is that the innocent prisoner wants an opportunity of going into the box, and saying, "I am here; this is my story, cross-examine me upon it." This amendment would absolutely do away in many cases with the beneficial effect of the Measure, and therefore we must vote against it.
§ LORD C. BERESFORD (York)I wish to support the Amendment of the Member for Manchester, and to give my reasons for doing so. I have sat upon a great number of courts-martial. I suppose many legal gentlemen in this House would be greatly puzzled with the procedure of these courts, but regard should be had to them in this case, because if this Bill becomes law it will no doubt eventually be extended in its operation to the Army and Navy. I am certain, from my experience, that under these conditions the clever scoundrel would often have a chance of getting off, whereas an innocent man would very often, out of his own mouth, convict himself. I 677 have been perfectly amazed at times, when witnesses have been put on their oaths, at the contradictory evidence they have given, and the extraordinary methods they have adopted to show what they thought was in favour of the prisoner, and I am perfectly certain when this Bill becomes law that will be increased. I have seen a man who has been proved to be innocent afterwards placed before a court-martial, and, as far as his appearance went, you would think he was guilty, such has been his nervous state; very often, indeed, a prisoner has been reduced to a state of prostration on account of the position in which he is placed. Well, I myself have been a prisoner. [Laughter.] There is nothing extraordinary about that—[more laughter]—I mean my crime was not very extraordinary. I ran over a bar, and my ship touched bottom, and I was very properly tried by court-martial. Well, I was very glad to be allowed to make my statement in writing. If I had been cross-examined, being a very nervous person, I am perfectly certain that, though innocent, under very clever legal cross-examination, my answers would not have run parallel at all. With regard to the question of cross-examination, there is no doubt that if the law allows an innocent man to give his evidence, he will undoubtedly in many cases commit himself, and, although you cross-examine him, I believe it will have a very bad effect upon the object which the Government have in view, which is to give an innocent man the chance of clearing himself. I give my experience for what it is worth; but, after all, it is a very serious thing to thousands of men in the Service to which I have the honour to belong; and I am quite sure that this law will act in a contrary way to what the Government think, so far as the Army and Navy are concerned. If the honourable Member goes to a Division, I shall certainly support him.
§ MR. ABEL THOMASI do not think the noble Lord who has just spoken can have had much experience of ordinary courts of justice. I am quite certain that the result of allowing a prisoner to go into the witness-box and make a statement upon oath, without any kind of examination to test the truth of it, would be absolutely worth- 678 less, and there is no juryman who is worth, his salt in this country who would listen to it or pay any attention to it. The whole object of putting a prisoner into the witness-box is to try and find out if he is guilty or not; and really, when the noble Lord talks about fear of cross-examination, I can only say I have been present in a court of justice when there has been a good deal of cross-examination, and I am quite certain that there is no person who is better able to judge of whether a man is telling the truth than the jury who are listening to him. They do not mind if he has made one statement a little inconsistent with the other. If they did they would never come to a decision in any case. It would simply mean that our courts of justice would disbelieve both parties. When you cross-examine a man he sometimes says something contradictory; but, on the whole, you elicit the truth. If you do not give the right of cross-examination you will never get the whole story. Under these circumstances, I sincerely trust the Government will not accept this Amendment. It seems to me to be the worst Amendment that can possibly be inserted in favour of an innocent prisoner. I quite agree with my learned friends near me, who defend prisoners more frequently than I do, as to the awkward position in which they would be placed by defending a man who is not innocent. But I undertake to say that if they continually defend innocent prisoners they will be sincerely glad of the opportunity of cross-examining them.
§ MR. DILLONI have had some experience of criminal proceedings, and I could not help being struck most forcibly in the course of the Debate with the truth of the old saying, "A fellow feeling makes one wondrous kind." I think it is a great pity the Committee have had so much testimony from prosecuting counsel and so little from honourable Members who have been prisoners. I have been a prisoner myself, and in that capacity I felt extremely interested in the speech of the noble Lord who once found himself in that position. Speaking from the point of view of the man who is being tried, I was struck with the fact that the Attorney General ridiculed the Amendment as if it were a perfectly 679 absurd one, submitting that if the prosecuting counsel had no right of cross-examination the only alternative would be that the sworn statement of the prisoner would remain without any power of testing the truth of it in any way whatever. Sir, that is not the case at all, because, if the prosecuting counsel has no power to cross-examine, the prisoner may be properly questioned on his statement by the judge. I protest against the notion that you are giving a privilege to an innocent man by conferring on him what has been described as the right of submitting himself to cross-examination. I entirely agree with the noble Lord the Member for York, who said that there are a very large number of persons who sometimes, by their demeanour and by their answers in cross-examination, convey to the jury the impression that they are guilty, when in reality this is entirely due to the fact that they are confused and their nervous system is upset.
§ THE FIRST LORD OF THE TREASURY (Mr. A. J. BALFOUR,) Manchester, E.The honourable Member who has just spoken seems to think that this question can be best decided by the experience of those who have found themselves in the painful position of being prisoners at the bar, and my noble Friend the Member for York took rather the same line of argument when he tried to persuade a sceptical House that there had been one occasion in his career in which he was overcome with diffidence and shyness, and had felt himself unable to do justice to the excellency of his own case. I would point out that, after all, we have some experience of the working of the system. I think it has been adopted universally in every English-speaking country in the world except the United Kingdom. I have been informed by a very eminent authority that precisely the same doubts and difficulties which beset the legal profession in this country on the suggestion of this change were felt in the United States, but the result of the experiment, which has been extended gradually from State to State, is that all fears have proved illusory, that the legal profession, divided as they were before the change have now become unanimous in favour of it, and that no section of the com- 680 munity, not even the prisoners at the bar, desire to see any alteration made in the system. Under these circumstances, I do really think my noble Friend's fears are somewhat chimerical. I believe the experiment will have the same result in this country as it has had in other English-speaking countries; but if there should be some unascertained difference between the system, in this country and those countries which have the same privilege and speak the same language—if, I say, there should be some unascertained difference between us, then there will be no reason for extending the experiment to the naval and military courts. I therefore hope the Committee will not adopt the Amendment, which goes to the root of the Measure, and which, if adopted, will make it hardly worth while for the Committee to continue their labours on the Bill.
§ MR. BUTCHER (York)Sir, in regard to what my noble Friend and colleagues have said on this side of the House I will only say this: the proposed Amendment will go to the root of the Bill. I must say that I was not particularly in love with the Bill itself; but, if we are going to pass it at all, let us pass it in the form in which it has been submitted. In the speech of my honourable Friend who supported the Amendment he seemed to advance good reasons against the Second Reading of the Bill. My honourable and noble Friend drew a most touching picture of what would have happened to himself if he had been subjected to cross-examination; but, from my knowledge of him, I will do him this justice and say that I do not think any cross-examination would be likely to do him much damage; and I think the same case would apply to many other persons. The real reason why I oppose this Amendment is this; I will give one illustration and one illustration only. A man who is charged with a crime, when called to give evidence, may seek to prove an alibi, and if this Amendment were accepted not one question could be put to him.
§ MR. DILLONExcept by the judge.
§ MR. M. HEALY (Cork, City)I think, Sir, if I were to criticise the speech of the First Lord of the Treasury, I would say that 681 he might have told us exactly his views on the Second Reading; because I do not understand that the First Lord of the Treasury addressed himself to the particular Amendment before us. The First Lord appeared to base his opposition to the Amendment on the general principle adopted by the United States. Now, Sir, I would warn the Committee against accepting statements as to what has been the experience in the United States. The First Lord tells us that somebody has told him that the people in the United States were delighted with the existence of the law and the state of the law that prevailed before prisoners were permitted to be examined. But we have no proof of that. We have no proof that the First Lord had any particular knowledge or proof of that statement. And may I point out, Sir, that when the Bill was discussed on the First Reading many Members were told of the experience obtained in the Colonies; and we were told that in Victoria, New South Wales, and elsewhere, portions of this Bill had passed into law, and everybody was delighted with it—judges, lawyers, the people, and everybody. Why, Sir, we had information yesterday that the very Chief Justice of one of these Colonies had declared that practically everybody in the Colonies was dissatisfied with the working of the Bill, and desired the old order of things to be reverted to. If the First Lord had said, "We propose that this Bill should be sent to a Select Committee," we would have had an opportunity of inquiring into it; the Select Committee would have been able to tell us all about it, and we should have known how the law works in other countries. At present we have no definite information of that sort. We have statements made in an entirely opposite direction, and statements made by an honourable Member, who says that he has the authority for his statements of some of the highest jurists in the country. As the Government has precluded us from the opportunity of procuring the best information obtainable on the subject, I say that the experience of foreign countries as founded on the information of some unauthorised person is of no value whatever. Now Mr. Lowther, as we get on in this Debate, we get to know more and more what the true interests at stake are. We began by being told that this 682 Bill was to confer a great benefit on prisoners. The Attorney General tells us one thing. This Bill, Sir, is intended for the protection of the innocent. It is to enable an innocent person to tell his own story. That is the ground on which the learned Attorney General and the Solicitor General have over and over again recommended it to this Committee. They have put that to the Committee as the reason for the Bill, and not with any desire to secure more convictions. Well, Mr. Lowther, let us take these learned gentlemen at their word. It is true, no doubt, that their statements are bonâ fide, and they say it is proposed by this Bill to give to the prisoner the privilege of telling his own story. Oh, but, they say, the whole value of the Bill will be taken away if the prisoner is not cross-examined. That is the object of the Bill—that a prisoner should be cross-examined. Yes, Mr. Lowther, I accept that statement—that that is the whole object of the Bill. It is to enable a prisoner to be cross-examined, and not merely to enable him to tell his own story. The one purpose, we are told, is to enable a prisoner to be put into the box to be cross-examined by the Crown counsel. Then we are told that when this Bill passes it will be conditional with the prisoner whether he is cross-examined or not. We have it on authority that the object of the Bill is to enable a prisoner to be cross-examined; and on that ground we are asked to support it. To put it shortly: first they told us the object of it was to enable the prisoner to tell his own story; now they tell us it is to enable the prisoner to be cross-examined. I ask, Sir, which is the precise ground on which the Government are going? They cannot have both these conditions. If it is a Bill intended for the advantage of the prisoner, it is idle to say that that advantage is availed of when it enables him to be cross-examined. I think, Sir, the purpose of the Government—if what they really desire is that the prisoner should be examined in his own defence—will be amply served by this Amendment.
§ *SIR C. HALLIt is to be observed. Sir, in the course of this discussion, that justice is not only to be done to the prisoner, but also to the other parties in 683 the case. Now, I firmly believe that the power of cross-examination, limited by proper safeguards, is necessary in any case in which a prisoner gives evidence. Let me point out to this Committee how a gross injustice might be done to numberless respectable people who have only come into court to do their duty to the State. Take the case of the cross-examination of a respectable woman by a man, a prisoner, who is guilty. Now what can he do if this Amendment is passed? He can cross-examine that respectable woman as having been guilty of the grossest misconduct. He can cross-examine her as to having consented to what has been done, and then he can go into the witness-box and tell the opposite story, without being cross-examined. What is the result? If he is acquitted, the woman's reputation is blasted for life. I say it would be a monstrous injustice to put such a privilege into the hands of such a man; and he might do the same to every witness who is called. He might say there was a conspiracy against him, and then go into the witness-box and tell his story in support of that plea, cannot believe, Sir, that this Committee will willingly concede such a privilege as that; and I shall certainly vote against the Amendment.
§ MR. S. EVANSThe honourable Gentleman who occupies the position of Recorder of London hag taken an objection to the Amendment with an inapt illustration that it gives a man the right to go into the witness-box to cross-examine. I understand the Attorney General to say that a man may go into the witness-box if—
§ *SIR C. HALLsaid the honourable Member had overlooked the fact that the proposed Amendment applied to all cases.
§ MR. S. EVANSI think there is very great doubt as to that. I do not think it repeals the Criminal Law Amendment Act at all. But what I want to see is whether something cannot be done to protect the prisoners. I only desire that, in modifying this Amendment, protection shall be given to a prisoner so far as protection is right There is no doubt it is no use arguing in favour of a prisoner being treated pre- 684 cisely as any other witness would be treated. It is very difficult to argue in such a case. But the position we find ourselves in is that the law of this country has for centuries past hedged in a prisoner in a way in which he is not unprotected. And you are now about to bring in a proposal—an Amendment—of a far-reaching character. It is well known that any person who is called as a witness in any proceeding may refuse to answer a question which is put to him if it is apt to incriminate him. But this Bill, if passed in its present form, will entitle a prisoner who is charged to ask a witness a question even if it tends to incriminate him in regard to this particular evidence. May I ask whether the learned Attorney General would not meet us in this respect? By all means cross-examine a prisoner on all points (if he tenders himself as a witness) material to the issue, but a provision should be inserted in the Bill to prevent cross-examination of a prisoner merely to his credit. If they are matters material to the issue cross-examine him, but if they are outside the issue entirely, and merely go to his credit, then there is very strong reason, I say, for providing against that. I will not detain the Committee any further by urging a stronger reason than that a man should not be cross-examined merely as to credit. If the Government could see its way to give us any undertaking on the subject, I daresay it would meet the exigencies of the case. The question of limiting cross-examination does not arise in this connection, though it may arise on sub-section 3. I do not want to enter into the matter, but he will find when we come to that part of the case we have inserted certain protecting clauses. It is not a question of limiting cross-examination of a particular description, but of limiting it altogether.
§ MR. S. EVANSSir, may I correct a statement I made? The honourable and learned Gentleman opposite said this Bill did not affect the Criminal Law Amendment Act. I said it did. He is right, and I am wrong.
§ SIR JOSEPH LEESE (Lancs, Accrington)It appears to me that one of the results would be that if no cross-examination is allowed to the prose- 685 cution, the prosecution of the prisoner would devolve upon the judge, and that is a function which I think the judges would be very unwilling to accept.
MR. GIBSON BOWLESSir, I think this Amendment has been invited by the action of the Government on this Bill. The Government has felt that cross-examination is not to be allowed except under certain very strict limitations, and I think one of the most extraordinary things in this Bill is the attempt that has been made to limit cross-examination, or the way in which a prisoner is to be examined. This is a question undoubtedly. My belief is that you cannot limit cross-examination. If you are to have cross-examination it must be full. Sir, the Solicitor General has taunted us with a virtue. He has talked repeatedly of the zeal which we entertain for the prisoner. We do entertain zeal for the prisoner, and this point, of whether he is to be cross-examined or not, is the crux of the whole question. Without the cross-examination you may have a Bill and welcome, and extend it to Ireland. There are two points—the question as to whether it is to be extended to the whole of the country, which would show its honesty, or not, which shows it is dishonest; and the other is cross-examination. I object to exceptional provisions. If you are to
§ limit the cross-examination, as I say, you absolutely destroy it and had better have none at all. I admit I am not prepared to deny that this would undoubtedly strike at the root of the Bill, but still I say that for the reason furnished by the Bill itself there is a strong case for the Amendment. Sir, we have to thank the Government for accepting a good many Amendments from the Committee, and I think we have cause to be thankful also for the moderation introduced into this discussion by the First Lord of the Treasury. I think he has exercised a most helpful influence on the hard hearts of the Solicitor General and the Attorney General. I am sorry he does not see his way to assist us in this Amendment, which, I am bound to say, does strike a good deal at the root of the Bill. Nevertheless, such is my horror and terror of this entirely new experiment, of this extraordinary, unparalleled, and hazardous alteration in the law—made after a thousand years of the contrary practice—the Attorney General knows it as well as I do, and if he does not know it, I will quote him Statutes—that I feel bound to vote for the Amendment.
§
Question put—
That those words be there inserted.
§ The Committee divided:—Ayes 53; Noes 287.—(Division List No. 178.)
689| AYES. | ||
| Abraham, William (Rhondda) | Duncombe, Hon. Hubert V. | Shaw, Charles E. (Stafford) |
| Allan, William (Gateshead) | Evans, S. T. (Glamorgan) | Sidebotham, J. W. (Cheshire) |
| Allison, Robert Andrew | Goddard, Daniel Ford | Smith, Samuel (Flint) |
| Ambrose, R. (Mayo, W.) | Harwood, George | Strachey, Edward |
| Atherley-Jones, L. | Healy, Maurice (Cork) | Sullivan, Donal (Westmeath) |
| Bayley, T. (Derbyshire) | Hogan, James Francis | Thomas, David A. (Merthyr) |
| Beresford, Lord Charles | Jacoby, James Alfred | Tully, Jasper |
| Bolton, Thomas Dolling | Lewis, John Herbert | Walton, Joseph (Barnsley) |
| Bowles, T. G. (King's Lynn) | Lough, Thomas | Warner, Thomas C. T. |
| Broadhurst, Henry | Luttrell, Hugh Fownes | Wedderburn, Sir William |
| Caldwell, James | Macaleese, Daniel | Whittaker, Thomas Palmer |
| Cameron, Sir C. (Glasgow) | MacNeill, J. Gordon Swift | Williams, John C. (Notts) |
| Colville, John | Maddison, Fred. | Wilson, John (Govan) |
| Curran, Thomas (Sligo, S.) | Molloy, Bernard Charles | Woods, Samuel |
| Daly, James | Owen, Thomas | Yoxall, James Henry |
| Dalziel, James Henry | Pease, A. E. (Cleveland) | |
| Dillon, John | Pickersgill, Edward Hare | TELLERS FOR THE AYES— |
| Donelan, Captain A. | Priestley, Briggs (Yorks) | Mr. Galloway and Mr. Lloyd Morgan. |
| Doogah, P. C. | Richardson, J. (Durham) | |
| NOES. | ||
| Acland-Hood, Capt. Sir Alex. F. | Curzon, Viscount (Bucks) | Hozier, Hon. James Henry C. |
| Aird, John | Dalrymple, Sir Charles | Hubbard, Hon. Evelyn |
| Allhusen, Augustus H. E. | Denny, Colonel | Hudson, George Bickersteth |
| Allsopp, Hon. George | Dickson-Poynder, Sir J. P. | Humphreys-Owen, A. C. |
| Arrol, Sir William | Digby, J. K. D. Wingfield- | Hutchinson, Capt. G.W. Grice- |
| Ashton, Thomas Gair | Dixon-Hartland, Sir F. Dixon | Hutton, Alfred E. (Morley) |
| Atkinson, Rt. Hon. John | Donkin, Richard Sim | Jebb, Richard Claverhouse |
| Bagot, Capt. J. FitzRoy | Doughty, George | Johnson-Ferguson, J E. |
| Bailey, James (Walworth) | Douglas, Rt. Hon. A. Akers- | Johnston, William (Belfast) |
| Baird, John George A. | Duckworth, James | Johnstone, J. H. (Sussex) |
| Baldwin, Alfred | Dyke, Rt. Hon. Sir W. Hart | Jolliffe, Hon. H. George |
| Balfour, Rt.Hon.A.J. (Manc'r) | Ellis, John E. (Notts) | Jones, W. (Carnarvonshire) |
| Banbury, Frederick George | Fellowes, Hon. A. Edward | Kay-Shuttleworth, RtHnSir U. |
| Barlow, John Emmott | Ferguson, R. C. M. (Leith) | Kenrick, William |
| Barry, RtHnAHSmith-(Hunts) | Fergusson,RtHn. SirJ. (Manc.) | Kenyon, James |
| Barton, Dunbar Plunket | Field, Admiral (Eastbourne) | Kimber, Henry |
| Bathurst, Hon. A. Benjamin | Finch, George H. | King, Sir Henry Seymour |
| Beach,Rt.Hn.SirM.H. (Brist'l) | Finlay, Sir R. Bannatyne | Kinloch, Sir J. G. Smyth |
| Beach, W. W. B. (Hants) | Fisher, William Hayes | Knowles, Lees |
| Bhownaggree, Sir M. M. | FitzWygram, Gen. Sir F. | Labouchere, Henry |
| Billson, Alfred | Fletcher, Sir Henry | Lafone, Alfred |
| Blundell, Colonel Henry | Flower, Ernest | Laurie, Lieut.-General |
| Bolitho, Thomas Bedford | Folkestone, Viscount | Lawrence, SirEDurning-(Corn.) |
| Boscawen, Arthur Griffith- | Forwood, Rt. Hon. Sir A. B. | Lawrence, W. F. (Liverpool) |
| Boulnois, Edmund | Fowler, Rt. Hon. Sir Henry | Lawson, J. Grant (Yorks) |
| Brassey, Albert | Fry, Lewis | Lawson, Sir W. (Cumberland) |
| Brigg, John | Garfit, William | Lea, Sir T. (Londonderry) |
| Brodrick, Rt. Hon. St. John | Gedge, Sydney | Lees, Sir E. (Birkenhead) |
| Brookfield, A. Montagu | Gibbons, J. Lloyd | Leese, Sir J. F. (Accrington) |
| Brunner, Sir John Tomlinson | Gibbs, Hon. V. (St. Albans) | Legh, Hon. T. W. (Lancs) |
| Buchanan, Thomas Ryburn | Godson, Sir Augustus F. | Leng, Sir John |
| Bullard, Sir Harry | Gold, Charles | Leuty, Thomas Richmond |
| Burns, John | Goldsworthy, Major-General | Llewelyn,SirDillwyn-(Sw'ns'a) |
| Burt, Thomas | Gordon, Hon. John E. | Lockwood, Lt.-Col. A. R. |
| Butcher, John George | Gorst, Rt. Hon. Sir J. E. | Loder, G. W. Erskine |
| Campbell-Bannerman, Sir H. | Goschen, RtHn.G.J.(St.G'rg's) | Logan, John William |
| Causton, Richard Knight | Goschen, George J. (Sussex) | Long, Col. C. W. (Evesham) |
| Cavendish, R. F. (N. Lancs) | Goulding, Edward Alfred | Long, Rt. Hon. W. (Liverp'l) |
| Cawley, Frederick | Gourley, Sir E. Temperley | Lorne, Marquess of |
| Cayzer, Sir Charles W. | Graham, Henry Robert | Lowe, Francis William |
| Cecil, E. (Hertford, E.) | Greene, H. D. (Shrewsbury) | Loyd, Archie Kirkman |
| Cecil, Lord H. (Greenwich) | Gretton, John | Lubbock, Rt. Hon. Sir John |
| Chaloner, Capt. R. G. W. | Greville, Captain | Lucas-Shadwell, William |
| Chamberlain, Rt.Hn.J. (Birm.) | Gull, Sir Cameron | Lyell, Sir Leonard |
| Chamberlain, J. A. (Worc'r) | Gunter, Colonel | Macartney, W. G. Ellison |
| Chaplin, Rt. Hon. Henry | Haldane, Richard Burdon | Maclure, Sir John William |
| Charrington, Spencer | Hall, Sir Charles | McArthur, W. (Cornwall) |
| Clare, Octavius Leigh | Halsey, Thomas Frederick | McEwan, William |
| Cochrane, Hon. T. H. A. E. | Hamilton, Rt. Hon. Lord G. | M'Ghee, Richard |
| Coddington, Sir William | Hamond, Sir C. (Newcastle) | McKillop, James |
| Coghill, Douglas Harry | Hanbury, Rt. Hon. R. W. | McLeod, John |
| Cohen, Benjamin Louis | Hare, Thomas Leigh | Maple, Sir John Blundell |
| Collings, Rt. Hon. Jesse | Hayne, Rt. Hon. C. Seale- | Mellor, Colonel (Lancashire) |
| Colomb, Sir John C. Ready | Heath, James | Melville, Beresford Valentine |
| Colston, C. E. H. Athole | Heaton, John Henniker | Mendl, Sigismund Ferdinand |
| Compton, Lord Alwyne | Hedderwick, Thomas C H. | Milbank, Sir P. C. J. |
| Corbett, A. C. (Glasgow) | Helder, Augustus | Mildmay, Francis Bingham |
| Cornwallis, F. Stanley W. | Hill, Rt. Hn. Lord A. (Down) | Milner, Sir Frederick George |
| Cox, Robert | Hill, Sir Edward S. (Bristol) | Milton, Viscount |
| Cozens-Hardy, Herbert H. | Hoare, Samuel (Norwich) | Monk, Charles James |
| Cranborne, Viscount | Hobhouse, Henry | Montagu, Hon. J. S. (Hants). |
| Cripps, Charles Alfred | Holburn, J. G. | Montagu, Sir S. (Whitechapel) |
| Crombie, John William | Holden, Sir Angus | Moon, Edward Robert Pacy |
| Cross, H. Shepherd (Bolton) | Holland, Hon. Lionel R. | Morgan, Hn. F. (Monm'thsh.) |
| Cruddas, William Donaldson | Horniman, Frederick John | Morrell, George Herbert |
| Cubitt, Hon. Henry | Howard, Joseph | Morton, A. H. A. (Deptford) |
| Curzon, Rt Hn G.N.(Lanc, S.W.) | Howell, William Tudor | Mount, William George |
| Muntz, Philip A. | Rothschild, Baron F. J. de | Thomas, A. (Glamorgan, E.) |
| Murray, Rt. Hn. A. G. (Bute) | Round, James | Thorburn, Walter |
| Murray, C. J. (Coventry) | Russell, T. W. (Tyrone) | Thornton, Percy M. |
| Murray, Col. W. (Bath) | Rutherford, John | Tomlinson, W. E. Murray |
| Newdigate, Francis A. | Samuel, H. S. (Limehouse) | Valentia, Viscount |
| Nicol, Donald Ninian | Schwann, Charles E. | Wallace, Robert (Perth) |
| Norton, Capt. Cecil W. | Seely, Charles Hilton | Ward, Hon. R. A. (Crewe) |
| Nussey, Thomas Willans | Sharpe, William E. T. | Waring, Col. Thomas |
| Palmer, Sir C. M. (Durham) | Shaw-Stewart,M.H. (Renfrew) | Wayman, Thomas |
| Parkes, Ebenezer | Simeon, Sir Barrington | Webster, R. G. (St. Pancras) |
| Paulton, James Mellor | Sinclair, Capt. J. (Forfarsh.) | Webster, Sir R. E. (I. of W.) |
| Pease, Arthur (Darlington) | Smith, J. P. (Lanarks) | Wentworth, B. C. Vernon- |
| Philipps, John Wynford | Soames, Arthur Wellesley | Whiteley,H.(Ashton-under-L.) |
| Phillpotts, Captain Arthur | Souttar, Robinson | Williams, J. P. (Birm.) |
| Pierpoint, Robert | Stanley, Lord (Lancs) | Willoughby de Eresby, Lord |
| Powell, Sir Francis Sharp | Stanley, E. J. (Somerset) | Wilson, John (Falkirk) |
| Price, Robert John | Stanley, H. M. (Lambeth) | Wodehouse, E. R. (Bath) |
| Priestley, Sir W. O. (Edin.) | Steadman, William Charles | Woodall, William |
| Pryce-Jones, Edward | Stephens, Henry Charles | Woodhouse,SirJT(Hudd'rsf'ld) |
| Purvis, Robert | Stevenson, Francis S. | Wortley, Rt.Hon.C.B. Stuart- |
| Pym, C. Guy | Stewart, Sir M. J. M'Taggart | Wylie, Alexander |
| Rankin, James | Stock, James Henry | Wyndham, George |
| Reid, Sir Robert T. | Stone, Sir Benjamin | Wyndham-Quin, Maj. W. H. |
| Renshaw, Charles Bine | Strauss, Arthur | Wyvill, Marmaduke D'Arcy |
| Richards, Henry Charles | Strutt, Hon. Charles Hedley | Young, Commander (Berks, E.) |
| Richardson, Sir T. (Hartlep'l) | Sturt, Hon. Humphry N. | Young, Samuel (Cavan, E.) |
| Ridley, Rt. Hon. Sir M. W. | Sutherland, Sir Thomas | |
| Ritchie, Rt. Hon. C. T. | Talbot, Lord E. (Chichester) | TELLERS FOR THE NOES— |
| Robertson, H. (Hackney) | Tennant, Harold John | Sir William Walrond and Mr. Anstruther. |
| Roche, Hon. James (E. Kerry) | Thomas, A. (Carmarthen, E.) |
§
Amendment proposed—
Page 1, line 14, after 'charged', insert, "and before the person charged, or the wife or husband is called upon to make his election as to whether he will give evidence or not the court shall further inform such prisoner that should he elect to give evidence he will thereby render himself liable to be cross-examined.'"—(Mr. Lloyd Morgan.)
*MR. LLOYD MORGANIt is quite possible that this Amendment, if brought into the Bill, would not improve the prisoner's position, but I should like to ascertain the opinion of the Committee in reference to the question, and that is my object in putting down the Amendment. I should like to alter it slightly, however, by striking out the words, "or wife or husband," so that it would read—
And before the person charged is called upon to make his election as to whether he will give evidence or not, the Court shall further inform such prisoner that should he elect to give evidence he will thereby render himself liable to be cross-examined.
§ SIR R. WEBSTERThis is a branch of the subject to which I have given a good deal of attention. In the Bill of 1888, I proposed a clause which was of the same description, but on consideration, the 690 Committee of the time came to the conclusion that it would be better not to insert it. No prisoner would be allowed to go into the box without being warned of his position, and if there was an absolute necessity for this statement being made, I think it would tend to call attention to the matter in a way that might be somewhat disadvantageous to the prisoner. However, I have no very strong feeling on the matter, and if the Committee are of opinion that some sort of Amendment to this effect should be inserted, I will undertake to consider it.
§ MR. CARSONI hope the honourable Member will not press this Amendment. I entirely agree with what the learned Attorney General has said, that this Amendment would not operate in favour of the prisoner. If you were to have a discussion with the prisoner, in presence of the jury, as to how far he could be cross-examined, I think it would entail many objections. I would remind the honourable Member that we now secured in the Bill that the prisoner is not to be examined except upon his own application. Under these circumstances I think it would be much better to keep the matter out of the view, of the jury as far as possible.
§ MR. ABEL THOMASI hope my honourable and learned Friend will not press this Amendment, because, if a prisoner was told by the jury, "If you go into the box you will be cross-examined," it would naturally frighten him; he ought to go further and tell him that no question would be asked about previous conviction. It seems to me that this Amendment would operate against the prisoner.
MR. GIBSON BOWLESAfter listening to my learned Friend, I confess that for once I have been converted. He has shown that this Amendment, if adopted, would be against the interests of the prisoner, and that he would not be benefited by it. I share the hope that the honourable and learned Member will not press it.
§ Amendment, by leave, withdrawn.
§
Amendment proposed—
Page 1, line 16, after 'by,' to insert 'or on behalf.'"—(Mr. Gibson Bowles.)
MR. GIBSON BOWLESMy Amendment is put down because I want to know the effect of clause (c) as it stands. The old doctrine was that the wife was not to be called against her husband, but here you have it that she is to be called. You would then have the right to ask her if her husband had not communicated to her that he was guilty. It seems to me that if a communication made to a husband by the wife, or vice versâ, that he or she was guilty is to be accepted, so also should any communication on his or her behalf. You are introducing an entirely new principle into our criminal law in calling the wife as a witness against her husband. I formally move my Amendment.
§ SIR R. FINLAYsaid it was laid down that a wife is not guilty of larceny if with her husband, because she is supposed to be acting under his control. His honourable Friend seemed to have overlooked that, and appeared to think that a husband was more under the control of his wife than a wife was under the control of her husband.
§ SIR R. FINLAYsaid the clause simply reproduced sub-section 3 of the Act of 1883 for amending the law of evidence, which provides that no husband shall disclose any communication made to him by his wife, and that no wife shall disclose any communication made to her by her husband during marriage. It was proposed to apply that rule under the present Bill.
§ MR. DILLONI want to ask the Solicitor General one question with reference to the effect of this subsection. Suppose a wife is called to give evidence to clear her husband, and suppose she gives as part of her evidence a conversation she has had with her husband. Can she be cross-examined with reference to that statement, or are we to understand that the effect of this sub-section is that she may tell only a part of the conversation, or all of it, as she wishes? Is it possible by cross-examination to compel her to disclose any part she wishes to keep back? I confess my utter ignorance of the working of the law, but it appears to me to be an important point.
§ SIR R. FINLAYOf course, a mere conversation would not usually be evidence, although sometimes it might form a part of evidence. The principle is that a wife cannot be compelled to disclose any such communication. If she chooses she may, but if she gives half a sentence I am not prepared to say that she might not be asked if the remainder of the sentence was not so and so, but there would be no right on the part of the prosecution to ask a wife to disclose a communication made to her by her husband.
§ MR. DILLONThe Solicitor General's reply is vague and uncertain. Are we to understand, supposing a wife or husband, as the case may be, gives as evidence some part of a conversation which either of them may have with the other, is the cross-examining counsel to be at liberty to put questions as to the whole of the conversation? I am not speaking now of broken sentences, but of conversations which may be vital.
§ SIR R. FINLAYI am not prepared to say that the case to 693 which the honourable Member refers has ever been decided, but if a wife gives evidence as to something said by her husband, counsel would be at liberty to test what she said, but he would not be at liberty to go into other communications.
MR. GIBSON BOWLESThe right honourable Gentleman has not yet referred to the point of my Amendment, which is a limiting Amendment to this clause. I propose that not only shall no questions be asked as to any communication by a husband or wife, but also that no question shall be asked of any third person regarding such communication.
§ SIR R. FINLAYI apologise to the honourable Member for not having noticed his point. The principle is that the confidential relations of husband and wife must be respected, but if a communication is made by the agency of a third party it is perfectly clear there is no particular confidence about it. Any message brought through the agency of a third party is not made in the confidence of marriage. My honourable Friend suggests the case of a solicitor's communication, but that stands in a different category.
MR. GIBSON BOWLESI do not think the answer of the right honourable Gentleman is perfectly satisfactory. A message may be sent by a child, but the announcement that a solicitor's communication is to be regarded as private affords me some consolation, and I will withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§
Amendment proposed—
Clause 1, page 1, line 19, leave out subsection (d)."—(Mr. Gibson Bowles.)
MR. GIBSON BOWLESOn behalf of the honourable Member for Manchester, I beg to move the Amendment standing in his name. This is a very important sub-section, which I now move to leave out. It means that a person charged shall not have the right to refuse to answer any question. It is one of the most ancient and inalienable rights of an Englishman to refuse to answer 694 any question that might prove his guilt. It is one of the most ancient principles of our law that a man should not be bound to incriminate himself. But this clause proposes to abolish it by a provision that a prisoner shall be asked questions which tend to incriminate him. It is putting into express terms about the largest revolution in law ever attempted in England since Magna Charta, if that were a revolution which is described by many as only a statement of the law of England. But the point I wish to raise is this—I will not labour it, as I am anxious to save the time of the Committee—are we without any charter to accept the principle that a man shall be bound to answer any question which may incriminate him? It is an entirely novel principle. When we have embarked on the limitation of the right of cross-examination, which is now occasionally so horribly abused, surely we ought not to open the limitation so much as this. We are proposing an extension of the right of cross-examining counsel to an extent nobody ever dreamed of before. Had it come from the Radical benches we should have howled against them, many of us would have protested energetically, and we should have gone to the country on it. I never expected to see a proposal made by a Conservative Government to deprive the prisoner of the right to refuse to answer questions which might not help him. The object of this Bill is to enable a prisoner to hang himself. That is not judicial nor proper, because if a man kills himself he commits suicide, and any attempt at suicide can be punished. This particular clause is unwarranted and unnecessary. Suppose a prisoner refuses to answer, why should such a refusal be set forth in so many terms? If the Solicitor General finds himself prosecuting a prisoner, and he asks, "Did you commit the murder?" or "Did you steal the pheasant?" and the prisoner replies, "I will not answer, on the ground that it might incriminate me." Surely that would be enough for the Solicitor General. It is an unnecessary and revolting clause, quite contrary to the whole spirit of the law, and with the utmost confidence I move that it be omitted.
§ SIR R. FINLAYThe honourable Member has stated that we take 695 the opportunity to ask a prisoner, "Did you commit this murder?" or, "Did you steal this pin?" Now, let me remind the House that it has already decided the point that cross - examination may be administered to the accused in a case in which the prisoner has volunteered to give evidence. Upon what point has he to give evidence? For he has given evidence that he is innocent of the charge; and my honourable Friend proposes that while he should be cross-examined no question should be put to him tending to show that he has committed the crime for which he is charged. My honourable Friend gravely proposes that the prisoner shall not be cross-examined upon material points.
MR. GIBSON BOWLESPardon me, Sir, but the learned Solicitor General has not shown his usual acumen in representing my argument. I did not say that; what I said was that he should not be asked direct questions for the purpose of incriminating himself on the charge.
§ SIR R. FINLAYBut the man has volunteered to give evidence, and in cross-examination the question would be put to him with a view of showing that he did commit the crime. There could be no material cross-examination except on questions tending to show that the prisoner did commit the offence for which he is charged. Although this Amendment is technically in order, it is really a proposal which would undo what the House has already done, if it accepted the proposal of the honourable Member. The House has already decided that there is to be cross-examination directed to the only material points.
§ SIR R. REIDThere is no doubt, Sir, that when a man is to be cross-examined you cannot prevent counsel from cross-examining him upon the only material points which he has bound himself to prove. Therefore, it does seem to me that the view of the Solicitor General is perfectly right. The point with me is whether it is worth while to raise a storm or controversy in reference to this clause for a result which seems so entirely inade- 696 quate. The clause says that a person charged
shall not have the right to refuse to answer any question on the ground that it would tend to criminate him.Well, my first point is: suppose a man does refuse to answer, suppose he is charged with stealing, and he refuses to answer the questions, his refusal shows that he has committed the offence which he has come into the box to deny. My second case is this: you have a man in the witness-box, and, whatever you say in the Act of Parliament, suppose he says, "I am going to refuse to answer any question," what are you going to do with him? Does it not seem a grave anomaly to send a man to gaol because he will not give an answer to a question incriminating himself? I do not at all dispute the judgment of the Solicitor General in what he has said, but what I do doubt is the practical wisdom of inserting in a clause of this kind a sub-section which has in it an element which is particularly goading to the prisoner, and which will really be perfectly profitless for the purpose for which it is intended.
§ MR. ABEL THOMASThe reason my honourable and learned Friend has given why the clause should be retained in this Bill is because of the drafting of the whole clause, which renders it necessary that these words should be kept in. I cannot help thinking that the real reason why this subsection or clause was put in was because of the following clause. The position is this: a man is put into the witness-box, and he can be cross-examined as to one particular offence; that is the one for which he is charged. It is stated, in the next sub-clause, that he cannot be cross-examined as to any other criminal offence than the one with which he is charged, and I cannot help thinking that really the reason why this sub-section was kept in, and was put in, was to show that it is upon the offence itself that he is to be cross-examined, and that upon any other offence he cannot be cross-examined. That is the reason why it seems to me that it was right to put that sub-section in, because it would be useful. One sees that if you cross-examine a man about stealing such and such a thing, for him to turn round and 697 say, "I am not going to answer that," would be ridiculous nosense. He would be convicted there and then, and I do not think any difficulty has been found in that respect under the present law. I cannot help thinking that when you remember this view it will be seen that the sub-clause is required, although considered by itself it may not seem to be necessary. It seems to me that although considered separately it may not make much difference one way or the other, yet it will make a difference read in connection with the next clause.
§ SIR R. FINLAYI quite agree with what my honourable and learned Friend has said, that that is one reason; but there is another reason. If you do not put in the words of this subsection it will lead to a principle in the English law where counsel for the defence might say that a prisoner could not be cross-examined because the question put to him tended to incriminate him and consequently he is entitled to refuse to answer it. I quite agree with the honourable and learned Gentleman that if a man objects to answer it would be equivalent to a plea of guilty, but still it would be very undesirable to leave any doubt upon a question in which the accused is competent to give evidence, and it would be preposterous to leave such a matter open to argument.
§ MR. DILLONThe only logical conclusion to be drawn is this: how are you going to force a man to answer these questions? In the case of an ordinary witness, who is not charged, you have power to make him answer, but are we to be told that a man on trial for his life, if he refuses to answer, will be committed? What are you going to do with him in such a case? We all know what was done in the old days. He would have been taken down immediately to the torture chamber and put upon the rack until he did answer; but you cannot do that now. Are you going to send the prisoner to gaol and keep him locked up until he answers? I do not think that would be an advisable thing to do. Therefore, this sub-section is absolutely inoperative, and that is the reductio ad absurdum of this Bill. On the face of that, it is clear that a man shall have a right to refuse to answer the question, 698 and if he exercises that right I do not think that you have any remedy whatever. The Solicitor General says this is intended to prevent the counsel for the defence jumping up and saying that the man shall not answer the question. Well, it seems to me that for no practical purpose you are keeping on the face of this Statute a very offensive principle—that is to say, a declaration that a man must answer a question incriminating himself. That, I think, is an odious principle to put on the face of a Statute—that a prisoner is to be compelled to answer a question to convict himself, and thus put the noose round his own neck by his own word of mouth. I think that is a very odious principle, and unless there is some very much better reason given than we have heard from the Solicitor General, or unless it is shown that the sub-section has some other practical effect, we ought to strike it out.
§ MR. CARSONEither this paragraph is meant to operate or it is not. If it is not meant to operate, what is the use of having it there at all, and why should it be kept there if so many Members object to it? I think everybody will admit that it is bad legislation to put in any sub-sections which are not meant to operate. On the other hand, if it is meant to operate, how is it going to work? No one has suggested that a man on trial for his life who says, "I will not answer that," should be sent to gaol, say, for six months. The prisoner would at once incriminate himself, and it would be a bad position to place him in. But are you going to aggravate that position by giving the judge or the magistrate—because he might just as well come before the magistrate—the power to say, "You must go to gaol for six months until you do answer"? At the end of that six months it might be advisable, if the man does not want to be hanged, to again refuse to answer the questions, and go to gaol for another six months. There is no other way to work this out, and I think it will be admitted that this House would condemn any magistrate who carried out this sub-section to its only logical conclusion. Now, are the Government going to take up that position? The learned Solicitor General said there was one reason for the counsel getting up and saying, "You have no right to put that 699 question." No doubt counsel would get up and say that in the interests of his client; but does anybody suppose that a judge would say that he had no right to put that question? Nobody ever heard a matter of that kind raised in that way. It is really the objection of a witness, and many judges will not allow the counsel to take such an objection. They may suggest it to the witness, and he may make it, but it is a question in which the witness has a right to say, "I shall not answer this question, because it tends to incriminate me." That is the only reason which the learned Solicitor General has given, and I do not know that any lawyer in this House will support chat view, for the difficulty is not one which we can easily get rid of. You have the remaining alternative, that you are going to pass this section with an intimation to counsel to treat it as a dead letter, and that is really what you are asked to do.
§ MR. BOUSFIELD (Hackney, N.)It seems to me that the Government are perfectly right in desiring to put on the face of this Bill some statement which will show that cross-examination is permissible, although the effect of such cross-examination would be to tend to incriminate the prisoner who is giving the evidence. Some statement should be made making that obvious, because it is certainly required. In making that statement, it might be put in a different way. It states that
he shall not have the right to refuse to answer any question.That at once raises the question, how are you going to compel him to answer if he refuses? I suggest that if it were put in the alternative way it would meet the point. Suppose the clause were amended to read—A person charged and being a witness in pursuance of this Act may be asked any question in cross-examination, notwithstanding that it would tend to criminate him as to the offence charged.Practically he has got the right to refuse. If he does refuse, and says, "I will not answer," of course you have done with it. It is not really a question of the right to compel a witness to answer, but it is a question of the right of the counsel to put the question; 700 and if the witness does not choose to answer it, you do not want this provision to compel him. I contend that the suggestion I have made would meet the end in view.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. ATKINSON,) Londonderry, N.I have not the slightest objection to the form of words which the honourable and learned Member for Hackney has suggested. Really, in fact, I was going to suggest something of a similar character; but the honourable and learned Member has really anticipated the answer I was about to give, and I am quite willing to accept the form of words he has suggested. It is, however, absolutely necessary to have something on the face of the Bill to show that the prisoner may be asked questions though they may tend to incriminate him. If the honourable and learned Member will move what he has suggested I will certainly support it.
MR. GIBSON BOWLESThe suggestion of the honourable and learned Member for Hackney, contained in his Amendment, is altogether unsatisfactory to me. Neither the Attorney General nor the Solicitor General has appreciated the point I have raised. So far as we have gone, the right of cross-examination is unlimited, but it will be further limited if we pass this. All that this clause deals with is the question as to whether you shall not compel the prisoner to answer. I desire to call the attention of the Solicitor General and the Attorney General to this fact: they have dealt with my Amendment as though this paragraph gave some power, and had no desire to take away the power of cross-examination. This paragraph does not touch, neither does my Amendment touch, the power of counsel to ask any question he pleases. As my honourable and learned Friend behind me stated, you have absolutely no remedy in the clause if the witness refuses to answer, and you can do nothing with him. If a man on trial for murder refuses to say whether he committed the murder or not, what are you going to do? Are you going to send him to prison for six months? No doubt he would sooner go there than to the gallows. It is like the alderman in the City of London, who gave a prisoner the 701 alternative of committing suicide over Waterloo Bridge or being sent to prison for six months. I do invite the attention of the Attorney General and the Solicitor General to these points, which are not touched by the clause. This clause solely concerns the right of a man to refuse to answer questions. The clause says, "he shall not have the right to refuse to answer." The only way you can make him answer would be by instituting in England the right of torture. The judges have declared that in England there is no right to torture prisoners, and the only way in which you can give effect to this proposal would be to institute the Spanish or other foreign right of torture. The Attorney General has argued round about this Amendment, and he has not touched the points I raised. The clause is unworkable and absurd, for it is solely a question of the answer to be given.
§ MR. LAWSON WALTON (Leeds, S.)I have listened with attention to the explanation of the learned Attorney General and Solicitor General, and although both of them have assigned reasons, I fail altogether to understand the drift of their remarks. The learned Attorney General says it is necessary that this clause should be inserted with a view to indicate that the prisoner should be subject to cross-examination. Well, Sir, it is an extraordinary clause, and it is one which certainly conceals that object in language which is very much calculated to have that effect. The words of the section declare that—
A person shall be a competent witness at every stage of the proceedings";and if he is a witness he must be subject to examination, cross-examination, and re-examination. It is, therefore, unnecessary to enact that he should only be subject to cross-examination to the ordinary extent, which entitles him to give evidence in a court of justice. It is proposed to take away a right, and if you propose to take away that right, it must be assumed that it is of some value and is worth sacrificing. Now, what is the right which it is proposed to deprive the prisoner of? It is proposed to deprive a prisoner of the right to refuse to answer any question on the ground that it would tend to crimi- 702 nate him, and it is proposed to prevent a prisoner who has been called upon to establish his innocence from objecting to answer such questions. Can you conceive of any counsel calling as his own witness a prisoner who proposes to take that objection? Can you imagine any prisoner taking that objection, and hoping to be acquitted? Surely it is quite absurd. If the right is of any value, why take it away? Supposing, then, further, this power is to be exercised, and supposing the prisoner objects to answer the question upon the ground that it will tend to criminate him, why, you are giving the judge the power of enforcing an answer without providing him with the machinery by which he is to give effect to it. My honourable and learned Friend raised this point of calling upon the judge to require a man to answer a question in the face of his refusal to answer, without providing any power to enforce it. Surely the clause is not shown to be necessary, for the objections to it are obvious, for it is of no value, because it imposes upon the judge an obligation which you give him no power to carry out.
§ SIR R. FINLAYI really do not think that my honourable and learned Friend has appreciated this provision. Supposing that under this Act a prisoner is not bound to answer any question; it is absolutely necessary to make it clear on the face of this Bill that if a man has given evidence who is innocent, and the cross-examination goes to show his guilt, he should not be able to refuse to answer. One other word in reference to the Amendment. The honourable and learned Member says it is taking away a right, but it is doing nothing of the kind. A man may say, "I am perfectly innocent," and what you are asking him to do is to state some of the circumstances tending to establish his innocence. Looked at from a popular point of view, you will see that these objections fall to the ground. I am really indifferent as to the form of words, so long as it is made clear that if a prisoner has given evidence to show his innocence he shall not be able to refuse his answer in case the cross-examination goes to show his guilt.
§ MR. S. EVANSWe are now saying for the first time that a law will apply to a person who is a 703 witness which does not apply to any other person in the land. You compel the prisoner, in the terms of this clause, to answer those questions, although they tend to criminate him. I do not think the learned Solicitor General and the Attorney General are really right in their contention that these words are required, as the effect will be precisely the same whether the clause is or is not adopted; and, if so, is it not a pity to put into the Bill a clause to the effect that you can ask the prisoner to incriminate himself? I am not aware that attention has been called—but I have not been present during the whole of this discussion—to the section of the Act of 1885 which deals with offences in which the prisoner is allowed to be cross-examined. Now, there is no provision in this Act of 1885 similar to the sub-clause here, and such a sub-clause has not been found necessary under that Act.
§ SIR R. FINLAYThere are no restrictions upon cross-examination now.
§ MR. S. EVANSThat makes no difference at all, for if you put restrictions upon cross-examination in this instance, such restrictions will not apply, and therefore you need not put in any other restrictions. The restriction of one thing excludes the other, and I hope the Government will see that really this sub-clause is entirely unnecessary, and is also very objectionable in the form in which it is introduced.
§ MR. HOBHOUSE (Somerset, E.)I think this sub-clause is unnecessary, because the following sub-section says—
A person called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that any person charged has committed or been convicted of any offence other than that wherewith he is then charged.Surely, that implies that he may be required to answer questions tending to show the guilt of the offence with which he is charged. That, I think, is very clear; that I suggest, among other reasons advanced, will show that this subsection is obviously objectionable and is quite unnecessary.
§ MR. ATHERLEY-JONES (Durham, N.W.)I should like to ask the learned 704 Attorney General whether, as the law at present stands, it is not competent to interrogate a prisoner upon matters which, if he answers, might tend to criminate him? If that be the law, may I also ask him to explain to the Committee in what sense the new clause, as amended by my honourable and learned Friend the Member for Hackney, will alter the law as it at present stands?
MR. GIBSON BOWLESThat is the point I was about to make myself, that the clause would not in any respect alter the law as it at present stands. In the opinion of the learned Members of this House that seems to be quite clear, and, if that be so, then the sub-clause as amended will be a redundancy. I do think I have made out a good case. Let the Government accept the Amendment and leave out the sub-section.
§ THE FIRST LORD OF THE TREASURYMy honourable Friend has made an appeal to me in a spirit of conciliation. Allow me to make a corresponding appeal. The Attorney General has announced his willingness to accept, on the part of the Government, words which would carry out the object aimed at. I did not think my honourable Friend has any ground for objecting to this, except its redundancy, when carried beyond a certain point, is a very serious one. The form of the sub-section to which objection was taken was given up, and another form was adopted. I think that upon that basis we might come to a common understanding.
MR. GIBSON BOWLESOf course, I do feel some tendency to accept anything that is recommended by the First Lord of the Treasury. I hope the Government will reconsider the matter, and if they did so I venture to predict that when the Report stage arrives, the Government will be the very first to propose an addition of this kind.
§ MR. ABEL THOMASI have been partly convinced that this Amendment will only injure and will not improve the Bill. The honourable Member for Somerset, who spoke from the other side, seems to have really taken away the ground from under my feet. When one remembers what would happen under the Criminal Law Amendment Act if there 705 were no provision of that kind, one sees that the next clause, as it stands, will imply strongly that the prosecuting counsel can ask this very question. I do not want to continue the discussion. If we really were to continue the discussion in the Report stage, I cannot help thinking that the Government will come to the conclusion—when we consider the way in which the Criminal Law Amendment Act is worked—that this sub-section is rather against what we are wishing to provide for.
§ MR. ATKINSONI am perfectly willing to consider it in the Report stage.
§ Amendment withdrawn.
MR. GIBSON BOWLESmoved to leave out—
shall not have the right to refuse to answer any question on the ground,in order to make the sub-section read—A person may be asked any question in the course of cross-examination, notwithstanding that it would tend to criminate him as to the offence charged.
§ Agreed to.
§
Amendment proposed—
Page 1, line 22, at end of sub-section (d) insert—
(e) The non-appearance of the person charged, or the wife or husband as the case may be, shall not be deemed to rebut any presumption of law that the onus of proof of the guilt of the person charged lies upon the prosecution."—(Mr. Lloyd Morgan.)
§ MR. ATKINSONsaid he could not accept that, but he would be glad to put in a new clause which would carry out the object of the right honourable Gentleman in a better way.
*MR. LLOYD MORGANI am afraid I cannot accept the new clause suggested by the Attorney General in substitution for the Amendment which stands in my name. He says it is only a declaration of law which exists at present. But the Attorney General's new clause will be doing exactly the same thing, because it is perfectly clear that if at the conclu- 706 sion of the case for the prosecution no pximâ facie case has been made out the judge would be obliged to direct an acquittal. My object in moving this Amendment is not that I wish to make any alteration in the law. This Amendment does nothing of the kind. It simply declares what the law is at present. It is the fear I have entertained throughout, that when this Bill passes it will in practice alter the law. As the law stands at present the prisoner is deemed to be innocent until he is proved by conclusive evidence to be guilty. He says to the prosecutor, "You have brought this charge against me, and now you will have to prove it." I concede at once that this Bill does not alter the law. Nor do I suggest that the present judges and lawyers who are sufficiently imbued with the traditions of our law will ever depart from it. In the course of time juries may come to return verdicts, not because the evidence is conclusive, but because they will have weighed the evidence for the prosecution as against the evidence for the defence, and in that way return a verdict merely on the balance of evidence, as is done in civil actions. I think it is a most undesirable thing that such a change should come about, and I therefore desire to move this Amendment which will make the law for all time perfectly clear and distinct. I am sorry to be unable to fall in with the suggestion of the Attorney General.
§ MR. CARSONI feel very great doubt in my own mind as to whether it is desirable to have a statement as regards this question of the onus of proof. It seems to me that the proposal of my honourable Friend is entirely faulty, for the reason that he only proposes to enact that the onus of proof should be placed upon the prosecution up to the time of the close of the case for the prosecution. The onus of proof and the presumption of innocence must continue to the very end of the case, unless the case is absolutely brought home to the prisoner. What I would suggest to the Government and to my honourable and learned Friend opposite would be that, instead of having any specific statement of this kind as regards this particular matter, there should be a general clause put at the end of the Bill, wherever it may be most convenient, to say that 707 nothing in the Bill is to interfere with the onus of proof according to the law. I do not know that the way in which it is done at present will at all carry out that in a satisfactory way.
§ SIR R. FINLAYsaid the Government would reconsider the question.
§ Amendment withdrawn.
§
Amendment proposed—
Page 1, line 23, after 'person,' insert "charged and.'"—(Mr. Nussey.)
§ MR. NUSSEYAs I understand this clause, the wife or the husband of the prisoner, as the case may be, cannot be asked as to the prisoner's bad character, except in one of three events, and these events are set forth under sub-sections 1, 2, and 3. If one of these three events does take place the husband or the wife can be asked questions, not with regard to their own bad character, but as to the bad character of the prisoner. The wife or the husband, whichever it is, can be asked whether the prisoner has been previously convicted, and although the prisoner could have given evidence himself, it does not matter in the least whether the prisoner's word is to be believed or not. The effect of my Amendment would be that the prisoner's husband or wife would be in exactly the same position as any other witness who might be called for the prosecution, or for the defence.
§ SIR R. FINLAYexpressed his opinion that the Amendment was unnecessary.
§ MR. M. HEALYThe effect of the Amendment would probably be against the prisoner rather than for him. But I would ask the Solicitor General to consider whether there is not some substance in the point my honourable Friend makes, and whether some Amendment of this kind would not be necessary. With the clause as it stands the effect would be this: we will say a wife is called as a witness, and a case mentioned in subsection 1, 2, or 3 arises. It would seem to follow that in any case the wife could be asked, "Was not your husband convicted of such an offence 10 years ago?" I do not think that is the intention of the Government, and it certainly would 708 seem to be involved in the clause as it stands at present. As the law stands at present I do not suppose a cross-examining prisoner can ask a question tending to throw discredit on a witness who had been examined.
§ SIR R. FINLAYThe point raised by the honourable and learned Member is worthy of consideration. But I do not think that what he apprehended would follow. What the clause says is that the person called shall not be asked questions as to the character of the prisoner, unless under certain conditions. I do not read the sub-section as in any way extending the liability of witnesses under the Bill. Supposing a question is not now admissible, we do not render it admissible. The condition must exist that the question would be admissible in point of law. The subsection would not render any of those questions admissible unless it were so in point of law. Yet the point raised by the honourable and learned Gentleman is worth considering.
§ MR. DILLONThere is the question of whether, under sub-sections 2 and 3, the wife might be called upon to give evidence of bad character. It appears to me to be perfectly clear that the wife may be called upon to answer the questions put to her to show that the husband was of bad character; that is certainly quite clear, as far as I can make it out. She may be called, if he has cross-examined or if he has called any evidence as to his good character. A most horrible condition of things might arise. If a prisoner called evidence as to his good character, and if he had asked any question to take down the character of any Crown witness, then if his wife was called she might be asked questions to show that her husband was a bad character.
§ SIR R. FINLAYAs I read the subsection these questions would be asked only if they have been put to any other witness for the defence. I think that is a fair reading of the sub-section. We will consider the question, and take care to put down an Amendment to safeguard those rights.
§ MR. PICKERSGILLI rise for the practical purpose of ascertaining from the Solicitor General what the intention of the Government is. I should like to have 709 a specific answer to this question: Supposing that a prisoner does ask a question of a witness for the prosecution, with a view of establishing his own good, or their bad, character, is it the intention of the Government that it should be open to the prosecution to question the wife upon the subject of her husband's bad character?
§ SIR R. FINLAYThe intention is to provide a certain barrier for the protection of the prisoner's wife. The intention is not to render any questions admissible to be administered to the prisoner's wife which could not be put to other witnesses. If my honourable Friend will give us his attention he will see that the effect is to give her, in certain events, a protection from questions which can be put to her husband.
MR. GIBSON BOWLESI would ask the Solicitor General to allow me to put it in another way. If the prisoner has given evidence against some other person charged with the same offence, then his wife may be called to Show that he is of bad character, or that he had been charged with an entirely different offence. I repeat that the section does read that if the prisoner has given evidence against any other person charged with the same offence, then his wife may be called. Again, if the prisoner has asked a question of any witness as to his good or bad character, then his wife may be called to give evidence.
§ SIR R. FINLAYNo.
MR. GIBSON BOWLESReading it backwards, as I do, it seems to me that if the prisoner has given evidence as to his own good or bad character, then the wife may be questioned to show that he has been convicted of an offence other than that with which he is charged. I do submit that this is the present reading of the section.
§ MR. ABEL THOMASThere seems to me to be a misapprehension on the part of some of the honourable Members. The law is this: if you ask a witness appearing for the prisoner whether the prisoner at the bar has borne an irreproachable character in the past, from that moment the prosecution is entitled, and has always been entitled, to prove that the answer given is not true, that he has not a good 710 character, but has been previously convicted. That is the position of the law now.
§ MR. DILLONDoes that open the whole question of character?
§ MR. ABEL THOMASMost certainly it does. It is obvious that if you call a prisoner himself, and he of his own accord gives himself a good character, or calls witnesses to give him a good character, he ought to be cross-examined upon that. It seems to me that the real fear of my honourable and learned Friend is due to the wording of the sub-section—"or their bad character." That is introducing something entirely new into the law. I do not want, however, to discuss it, because it does not arise in this line of the clause. The law remains exactly the same in the future as it is now—that is, that the wife, if she is called, and the husband has called evidence to prove that he has a good character, may be, like every other witness, cross-examined. I think, Mr. Lowther, you will see the difficulty under which I am labouring. I think it all arises by the retention of the words "or their bad character." If those words are retained the result of the first part of the clause is that, if the counsel for the prisoner chooses to cross-examine the witnesses for the prosecution as to their character, the whole of the prisoner's past career is brought up. I cannot help hoping that when we come to another stage these words will be omitted and the law will be allowed to remain as it was before this Act was passed.
§ SIR R. FINLAYpointed out that if the section were referred to it would be found that the wife or husband was protected; but he promised to consider the question, and would take care that no undue extension of the questions to the wife should be allowed.
§ MR. M. HEALYI think the assurance of the right honourable Gentleman is very fair, and I would ask my honourable Friend to accept it, but I think the danger of the position is overlooked by the right honourable Gentleman. The difficulty arises from the fact that the Government have endeavoured to deal in one clause with two different cases, the examination of a prisoner and of the wife (or husband). This is a matter 711 which in my opinion should be dealt with in two clauses.
§ MR. DILLONI am still in the dark as to the extent to which the examination of the wife shall go. It has been said that if a prisoner's character is brought up, either by calling witnesses in support of it or by asking witnesses as to their character, his whole past career is to be raked up, and his wife, in case she is called, could be examined as to the character of her husband.
§ SIR R. FINLAYYes.
§ MR. DILLONNow, I do say it is monstrous that, if a witness is called to show that the prisoner is of good character, the prisoner's wife should be called to speak to his bad character.
§ SIR R. FINLAYYes.
§ MR. DILLONThen I can only say that I am shocked to think that a man's wife can be examined generally at large as to the character of her husband.
MR. GIBSON BOWLESagreed with the honourable Gentleman opposite that the mistake was in trying to deal with two classes of cases by one clause. He suggested that the section should be divided into two parts.
§ SIR R. FINLAYundertook to give the matter full consideration, and said he would deal with it at the Report stage.
§ MR. PICKERSGILLcomplained that his point had not been met by the remarks of the Solicitor General.
§ SIR R. FINLAYI will consider the whole clause under discussion.
§ The Amendment was, by leave, withdrawn.
§
Amendment proposed—
Page 1, line 26, after 'convicted of' insert 'or been charged with.'"—(Mr. Gibson Bowles.)
MR. GIBSON BOWLESregretted that the Solicitor General was not in the House, as he wished to address his arguments to that gentleman. The Amendment which he desired to move was, in his opinion, a most important one, and one for which he had a great consideration. It was one which provided that a witness should not be required to answer any 712 question tending to show that he himself had been convicted or charged.
§ SIR R. WEBSTERaccepted the Amendment.
§ Amendment agreed to.
§
Amendment proposed—
Page 2, line 3, leave out 'or their bad.'"—(Mr. Nussey.)
§ MR. NUSSEYsaid he thought it was of some importance. The Attorney General had admitted that there was a great difference of opinion as to the advisability of cross-examination in this case. There was some opinion, at any rate, with regard to the cross-examination of prisoners who may attempt to bring evidence to show their character; they might do a good deal of harm, because conflict of evidence would arise, and it would be impossible for the jury to say which side was speaking the truth, and it might work a manifest injustice to the prisoner, because he would be convicted not upon the evidence of the case, but rather upon that of his past history. He hoped the Attorney General would see his way to accepting the Amendment.
§ SIR R. WEBSTERhoped the honourable Member would not press the Amendment for the reason that, in his opinion, it would not have the effect the honourable Member intended. The whole of the sub-section was put in for the protection of the prisoner, wife or husband. But as there was a certain amount of ambiguity about it, the Government would consider the whole framing of the sub-section, and would deal with it at another stage.
§ MR. ABEL THOMASI am perfectly satisfied with that, because I know the desire of the law officers of the Crown is practically the desire of the House. But if they will allow me to say, if you look at the clause—first I deal with the criminal himself. If a prisoner is called as a witness he shall not be asked questions with regard to his previous career unless he has questioned a witness with a view to establishing his bad character. But if he has he can be asked as to his past career. Now, it is obvious where a prisoner is charged with an offence if counsel attacks the character of a witness for the defence that does not entitle 713 the counsel for the prosecution to prove that the prisoner is a bad character. This is bringing in a new rule altogether. I think the Solicitor General will agree with me that this is bringing in a new rule. When the woman is called for the prosecution, it is vitally important to find out whether she is telling the truth or not, and to know whether she is of notoriously bad character or not. You may cross-examine her for an hour in regard to her character. Can it be said that that entitles the counsel for the prosecution to ask the next witness who comes into the witness-box as to whether the prisoner has been guilty of a similar offence to that with which he is now charged. It is obvious to anyone who has had experience in criminal courts that that is not so. Honourable and learned Members will agree with what I say at the present time. Does it make any difference because the prisoner's counsel or the prisoner himself asks a question with regard to the character of a witness for the prosecution. The question is whether a witness called for the prosecution is worthy of credence, and if he can show to be not worthy of credence by cross-examination as to his former character, what difference does that make with regard to whether or not the prisoner himself has been charged with an offence? I am sure that the right honourable Gentleman and the honourable Members who are bringing in this Bill really could not have intended to bring in an absolutely new rule in our criminal procedure. I really cannot see why it is necessary that that should be done. Honourable Members have many times defended prisoners, and they know it is absolutely necessary to break down the evidence of a rogue whom you know to be a rogue who is called for the prosecution. It is obvious that it is one's duty to do so. It was never intended by this Bill, for immediately you cross-examine anybody with regard to his character in order to show that he is not worthy of credence it entitles the prosecution to call witnesses to prove that the prisoner has been guilty of 15, or 100, or 1,000 offences—I do not care whatever it is. It must mean that if it means anything. I cannot see how it can be put in the place where it is if there was not that intention. Though I am very much in 714 favour of this Bill, especially as it is formulated up to the present time, yet upon my word, if it is to alter the rules of evidence with regard to the conduct of the prosecution, I venture to think that it will be an exceedingly evil Act. I feel it is not the intention of this Bill to alter the law except by giving a certain amount of advantage to an innocent prisoner. But very often a witness is asked, "Were you convicted three weeks ago of being drunk and disorderly?" In some cases it is the object to show that the witness himself was a disorderly person three weeks ago. Immediately that lets in the whole character of the prisoner at the bar. Surely in a Bill of this kind that is not the sort of thing you ought to try to do, even though it appears a good thing in itself. I think it really spoils a most excellent Measure, in my opinion, and I sincerely hope, that, unless the House is shown that my view is wrong, the honourable Member who has charge of the Bill will see his way to leave the words out. Let me ask him if it does not mean that? What is the use of putting these words in? I really cannot see. If he tells me that it does not mean that I shall be extremely glad.
§ SIR R. WEBSTERI hope I can satisfy the honourable Member. He is usually so clear on these matters that I think he must be under a misapprehension. It does not in the least alter the rules of evidence. In fact, there is a limit in favour of the prisoner. In many cases in which the prisoner can be called he is subjected to unlimited cross-examination. But this sub-section limits the cross-examination of the prisoner. My honourable and learned Friend seems to think that because prisoner's counsel had asked a question of a witness that enabled the prosecution to call evidence of the bad character of the prisoner. That is entirely a mistake. This is simply a proviso to limit the right of cross-examination, and to say that you shall not be entitled to ask the prisoner a question as to his character unless he has invited it by making an attack on the character of the prosecuting witness. We will deal with such a case. Take the case of a prosecutor who has been called and who has given his evidence against the prisoner, and he is cross-examined—I hope not for an hour, because I cannot 715 imagine my right honourable Friend cross-examining for an hour. The prisoner elects to go into the box and to give evidence in contradiction of the prosecution. It is a question of leave to cross-examine as to character in a case in which the prisoner has attacked the character of the prosecuting witness. That is the case intended to be met. If there is any doubt as to the meaning of the words the matter will be considered before the Report stage.
§ MR. CARSONI think this is a very important question, and I think it will be best to consider it by putting a concrete case. I think the House will agree that the prisoner ought not to be allowed to be cross-examined about his previous bad character. In the case of previous convictions, they ought not to be, as they never are, allowed to be given in evidence. Of course, we all know, for instance, that if a man who was, accused of burglary were cross-examined as to whether he had been convicted, it would almost be a matter of course that he had been previously convicted of the same offence, and that it was for that very reason that he had been arrested and charged with the offence, he being known to the police to have been a burglar; so that in point of fact, he would be convicted, not upon the fact of the particular case with which he was charged, but upon previous convictions. No one would think it would be just to cross-examine him with regard to previous matters. But the sub-section provides that if the prisoner, whether defended or undefended, happens to put a question about the bad character of a witness for the Crown, that is to let in the whole previous history of the prisoner. Now let me put my concrete case. Supposing a witness for the Crown is himself, or has been, a burglar, or is a man of bad character, who has got up this case against the other man, and supposing that the witness knows that he has previous convictions against him, is he to be put in this dilemma—is he to be told, "You cannot ask this witness anything about his bad character"? The question of the good or bad character of a Crown witness has nothing whatever to do with the good or bad character of the prisoner himself, and the Crown are bound to prove their case, and you have 716 a right to assist the witnesses by whom that case is being proved. The prisoner ought not to have these previous convictions or his bad character brought against him; or, if you do, the sole result will be that the prisoner will have to make up his mind, and say, "Rather than be prejudiced by my previous history being brought against me in this way, I will let the Crown witness—though I know what he is—go down as an untarnished witness, because otherwise evidence will be brought against me." I really think that you are rendering the administration of justice almost intolerable. I think there ought to be no limit put, as this proposes to do, upon the sifting of the trustworthiness of the witnesses for the Crown. I do not think the prisoner ought to be put in the position of saying to himself, "Well, the Crown witness is just as bad as I am, and it will be for the jury to choose between us." That is really what it would come to. I think that, so far as previous character and convictions are concerned, we should do what I think has been the administration of the law up to the present—we should see that, no matter what a man's antecedents may be, they have no relevancy to the particular crime with which he is charged; it must stand or fall upon its own merits and on the evidence of the witnesses called against him.
§ SIR R. FINLAYI think the arguments of my honourable and learned Friend are worthy of consideration. At the same time, there is another side to the picture which the House has to consider. Suppose the whole case for the defence has been an attack upon the character of the prosecutor, and the witnesses for the prosecution, it is suggested, are of infamous character, and that it is a case of conspiracy against the prisoner, in that case it is only right and proper that the accused should be cross-examined as to his antecedents. He has attacked the character of the prosecutor, and has said that the prosecutor is guilty of infamous conduct, and that he is really the guilty person and not the prisoner. It would be a monstrous thing that the accused should be at liberty to say that he was not to be cross-examined as to what his previous career has been. If there is an acquittal it means ruin to 717 the prosecutor for life; for one man is just as much, on his trial as another. I agree that the section, as it stands, is open to criticism, though not to the imputations that have been made upon it. I do agree that there is a certain amount of amibiguity and obscurity about the sub-section, but we have undertaken to reconsider the whole matter with a view to the sub-section being framed in the Report in such a way as to obviate the objections that have been made against it. What I do wish to submit to the Committee is that it is eminently reasonable that there should be a certain power reserved of allowing questions and crass-examination if the conduct of the accused has been such as, in the opinion of the presiding judge, to make it fair that that course should be taken. How that is to be worked out is difficult for the Committee to decide, but the whole of the sub-section will receive the fullest consideration; but if it is understood that we reserve perfect liberty of action it really does not very much matter whether this Amendment is accepted or not at the present moment. What we do desire to make clear is that, while we are willing to reconsider the whole frame of this subsection, we cannot agree that it should be understood that whatever the conduct of the defence has been, the prisoner and his witnesses are necessarily to be exempt from cross-examination.
§ MR. BROADHURSTThe Solicitor General gave us no indication of the alteration he proposes to make on the Report stage.
§ SIR R. WEBSTERI said, and the Solicitor General said too, that, while we must reserve to ourselves liberty of action, we were quite willing to reconsider the matter.
§ MR. BROADHURSTThe right honourable Gentleman did not make it clear that the Government intended to accept this Amendment; but he did contend that, whatever alteration the Government proposed to make on the Report stage, they would retain this new departure in the law of evidence, as indicated in the words complained of.
§ SIR R. FINLAYI did not say that; I said we would reconsider the question.
§ MR. BROADHURSTThe departure is that if the accused availed himself of his constitutional right to discredit a witness against him, he is to be fined for exercising that right by being subjected to a new process of examination, hitherto unknown to the law. What I understood the Solicitor General to say was that the Government must maintain that new departure. If the Solicitor General did not mean that, and did not say so, I am very glad. If the Government accepts the deletion of these words, as indicated by the Attorney General, then the position is made clear, and the Bill would be considerably improved.
§ MR. CARSONI have known witnesses for the police attacked most unjustly and unfairly, and I hope the House will agree to the proposals of the Government; for, from information I have received, I believe the country is very much at their back.
§ Amendment, by leave, withdrawn.
§
Amendment proposed—
The person charged and called as a witness has given evidence against any other person charged with the same offence."—(Mr. Evans.)
§ MR. EVANSsaid that would involve what might be a very long investigation as to whether a person charged and called as a witness on his own behalf had at any previous time given evidence against any other person charged with the same offence.
§ MR. M. HEALYMy honourable Friend speaks of prisoners jointly charged, which I take to mean charged at the same time. But there may be two persons indicted, and yet tried at different times. It would be better, therefore, to say, "charged with reference to the same offence."
§ SIR R. WEBSTERI was about to make a suggestion on that point. What we want is to prevent one prisoner giving evidence against another in respect to the same offence, and I think the criticism of the honourable Member as to the expression "jointly" is 719 probably right, so that it would be better to say—
where charged in respect of the same offence.That would apply to the same indictment, or to different indictments, and provides that prisoners charged in respect of the same offence should not be called to give evidence against one another.
§ MR. BOUSFIELDI would suggest that we should substitute "gives" for "has given" in order to make it perfectly clear.
MR. GIBSON BOWLESI think the sub-section as it stands is a dangerous one, but I am bound to admit that the Government have shown their readiness to reconsider it. The whole sub-section requires reconsideration, and it is quite clear that we shall have to have considerable Debate upon it in the Report, and that it will have to be re-cast.
§ SIR R. WEBSTERThe Government have shown that they are ready to reconsider the sub-section, although I do not admit that it will have to be re-cast as a whole.
§ MR. EVANSI am perfectly ready to leave the matter to the consideration of the Government until the Report, and I will withdraw my present Amendment in order to renew it in another form.
§ Amendment withdrawn.
§
Amendment proposed—
Page 2, line 7, to leave out 'same offence' in order to insert 'offence with which the prisoner is charged.'"—(Mr. Evans.)
§ MR. M. HEALYBefore the Amendment is accepted I wish to point out a danger that is involved in the sub-section. Where prisoners are charged with an offence it will be incumbent on the court to cross-examine them, and every prisoner who gives evidence and is jointly charged can be cross-examined. His evidence may necessarily involve the guilt of the other prisoner, but he may not have the character of an informer at all, but may be acting with the most perfect bona fides in that respect, and be perfectly innocent, although his innocence may involve the guilt of the other. If it happens that he has had some connection with the 720 prisoner, and he goes into the witness-box to be examined in his own defence, knowing something about the crime, his evidence necessarily involves making a charge against somebody else, and what follows? He subjects himself as to his own past career to cross-examination at any length. I do not know whether the Government intend that, but if they do it certainly is not desirable, and in the sub-section as it stands I think some amendment is necessary. When one prisoner turns approver it is necessary that the other should be allowed to show if he can that he is of bad character. But the sub-clause as drawn is wide enough to cover a wholly different class of cases, namely, where the person giving evidence does not do so at all in the character of an approver, and where his action in that respect is perfectly innocent, but still such, that the mere fact that his evidence necessarily involves a charge against the other prisoner subjects him to cross-examination as to other offences. I think that is most unjust, and I ask the honourable and learned Gentleman to make some statement as to what the views of the Government are with regard to that class of cases.
§ SIR R. FINLAYWhere one prisoner is endeavouring to save himself by giving evidence against another prisoner charged with the same offence it is only a matter of justice to the latter that the prisoner giving evidence should be effectually tested by reference to his past career. I think that these particular words proposed by the honourable and learned Gentleman may be accepted and included in the clause, and they will be reconsidered with the whole section in view of the discussion which has taken place.
§ Amendment agreed to.
*THE CHAIRMANThe next Amendment, which stands in the name of the honourable Member for King's Lynn, is outside the scope of the Bill.
MR. GIBSON BOWLESWill you be good enough, Sir, to state why my Amendment is outside the scope of the Bill?
*THE CHAIRMANThis Bill deals with evidence in criminal cases, and the assignment of counsel to prisoners is outside the subject.
§
Amendment proposed—
Every person called as a witness in pursuance of this Act shall give his evidence from the witness box or other place from which the other witnesses give tehir evidence."—(Mr. Pichersgill.)
§ MR. PICKERSGILLThe condition which this Amendment proposes to provide by law seems to me to be obviously the only proper course consistent with the object of the Bill.
§ SIR R. WEBSTERI may say at once that I will assent to the Amendment, but I must point out that there is one matter which has been overlooked by the honourable Member, and that is the case of violent prisoners. In all probability that might be met by inserting after "shall" the words "unless otherwise ordered by the judge presiding." I am quite willing that the ordinary prisoner should give his evidence from the witness-box, but these words will meet the case of violent prisoners who have shown excitement in the dock, and I will ask leave to move them.
§ MR. PICKERSGILLWould it not be well to indicate the grounds on which the order is made? It is clear, I think, that our object may not be gained unless we require the judge to indicate the reason for which the usual practice is to be departed from.
§ SIR R. WEBSTERSurely the judges will indicate it, for they will make no such order unless the prisoner is violent. I think that will be sufficient.
§ MR. PICKERSGILLVery well.
§ Amendment, as amended, agreed to.
§ Clause 1, as amended, was added to the Bill.
§ Clauses 2, 3, and 4 were agreed to.
§ On clause 5,
§ MR. CARSONOn the Amendment of the honourable Member 722 for South West Manchester [Mr. W. J. Galloway], to leave out sub-section 1, page 2, line 25, I wish to ask the Government for what reason this Bill is not to be extended to Ireland; and, Sir, I do so not as a supporter of this Bill, but because, so far as I know—and I have had some experience of criminal law in Ireland—there is no Act of criminal procedure relating to this country which is not also in force in Ireland. I think, Sir, the House wants some definite reason as to why the Government has thought proper to create this distinction at this time of day. It may be that this Bill is a good Bill, or a bad Bill, but I do think that, at all events, we on this side of the House ought not to be making differences, and, above all, differences in the administration of criminal law, as between the two countries, and I do think, for that reason, it is the bounden duty of a Unionist Government as far as possible to pass Acts of Parliament which are applicable to the whole of the United Kingdom. Therefore, Sir, I beg to submit that it is a proper question to put to the Government as to what is the reason why, for the first time, this House is going to enact a criminal procedure which is to be applicable to one country and not to the other? Now, Sir, I do think that there are occasions on which this may create a very great difference. Take, for instance, a case of conspiracy. There may be some conspiracy which is partly carried out in Ireland and partly in England; and look, Sir, at the absurd results at which you arrive if you enact that if the prisoners are tried in Ireland they will be tried by one law, and if they are tried in this country they will be tried by another law. I hardly see what is the reason why the Government have adopted this procedure. Now, I have said so much from the position of the Unionist who is opposed to the Bill, but what is the case of the Government for that Bill? They say that this is an absolutely necessary Act for the benefit of innocent persons, and that it ought to have been placed on the Statute Book long ago. Well, have they no feeling for innocent persons, in Ireland? Does their principle of abstract justice only relate to the trial of prisoners in this country? 723 Sir, I like to give the Government credit for being absolutely sincere, although I differ from them on this question, and I am perfectly sure that the learned Attorney General believes that this Bill is for the benefit of innocent prisoners. Well, Sir, I want to know, if this Bill is for the benefit of innocent prisoners, why has he so disregarded my fellow-countrymen in Ireland who are innocent? I find all the more difficulty in discovering a reason for excluding Ireland from the purview of this Bill, because I find that this Bill, or a similar Bill, has been introduced into this House on many previous occasions, and I believe that up to last year on no occasion was it ever suggested that Ireland should be left out, and I think I shall be able to convince the House, by producing the only Debate that I know of that occurred upon this Bill in recent years, that the Members of the Treasury Bench were really in favour of applying this Bill to Ireland. But, Sir, they were not only in favour of it; they gave the reasons. I should like to quote one or two of the reasons of eminent men—and I am sorry the Solicitor General is going away, because I am going to quote him first—why this Bill should apply to Ireland. Now, I hope I shall not be told that Irish Members do not want this Bill, and that, therefore, they are not going to give it to Ireland, because, Sir, as a Unionist, that is a principle that I should condemn. I should be very sorry to lay down to this House that the only legislation which was required for Ireland was that of which the majority of Irish Members approved, because I can see that that would result in particular legislation of which I do not approve. Well, Sir, it may be said that this is only a local matter in relation to Ireland. Upon that point I should like to quote the speech of the Solicitor General when he was in an office, perhaps not of so much responsibility, but, at all events, of greater freedom. Speaking on the question of the application of this Bill to Ireland, he said—
If that were a matter that depended only upon local considerations he should be prepared to act upon the opinion which he understood was entertained by a great many representatives of Ireland upon that point; but to 724 his mind this was a matter of general principle, and, speaking for himself, he thought it would be a great mistake if we were to have one law on a matter of that kind for one part of the United Kingdom and another law for another part.Well, Sir, I can hardly believe, knowing him as I do, that the honourable and learned Member desires this evening, to perpetrate what he himself has described as a great mistake. Then he goes on to say—The question of what person should be allowed to give evidence was not one to be considered upon local considerations peculiar to Ireland. It was a matter of general principle, and a question on which he thought they ought to be guided by those broad considerations which were applicable to every part of the United Kingdom.Sir, I do not know what has made him change his view, but one would not imagine that a majority of 150, or thereabouts, had in any way led him to change his opinions. Sir, he winds up his very excellent speech in these terms—He was strongly of opinion that it would be a mistake if the Government excluded Ireland from the operation of this Measure.Well, Sir, I do not know what he would say now as regards that, but, going on to the Debate, I find that the then Solicitor General for England, who, I suppose, also sat on the same bench, used very strong language in his view that the Measure ought to be applied to Ireland if it were applied to any part of the United Kingdom. Sir Edward Clarke, who I regret is prevented by illness from being here to-night, stated in his speech—He was strongly of opinion that the Bill ought to be extended to Ireland.Above all, the then Chief Secretary for Ireland—the present Leader of the House—who knows the country as well as any Irishman—the greatest compliment that can be paid him—also stated his views on the subject. He said this—What they ought to look to in this matter was not the opinion of the right honourable and learned gentleman the Member for Bury—that was the present Lord James—or to the opinion of the honourable and learned Member for North Longford, however great ought to be the weight of those opinions in the House. 725 What they had to consider was whether this Bill was an improvement of the machinery of criminal justice, as every human being admitted it to be in England; and no argument had been brought forward to show that it would not be an equal improvement in Ireland.I think I have cited enough authority to show that it was the view of the Government that it would be inflicting a grievous wrong upon Ireland if they did not extend this Measure to Ireland, and, therefore, Sir, I think I am entitled to ask what has occurred to alter the idea that you ought to have similar laws in the two countries. I think, Sir, I have strengthened my position when I put that question, and when I state, as I do now, that, so far as I know, there is no Act of criminal procedure relating to this country which up to the present moment does not run in Ireland. I hope I shall not be told that it is because the Government would have had a larger body of Irish Members opposing this Bill if they had included Ireland. The reason why I have mentioned this subject is that I remember last year a question being put by the honourable Member for Longford as to whether the proposal would apply to Ireland, and the Attorney General for Ireland gave the answer that it was not intended "now." I think there is nothing worse for maintaining a Unionist policy than that we should be trying to ascertain what are the views of particular Members here and there upon a matter which is conceded to be one of general principle. We ought to legislate in this House for the United Kingdom as a whole. That, I think, is a good Unionist proposition. That is what honourable and right honourable Members used to say long ago—at least, a few years ago—but what they say now is sometimes different. I am very anxious, therefore, to know whether the Solicitor General adheres to the words I have quoted, and whether the Government takes the view that, on this question of "elementary justice for innocent prisoners," they are prepared to say there shall be one law for England and another for Ireland.
§ THE FIRST LORD OF THE TREASURYMy right honourable Friend has attacked the Solicitor General, 726 the Attorney General, and myself for an alleged inconsistency—I will go further, and say for a real inconsistency—between the policy now proposed by Her Majesty's Government and that we were anxious to support 10 years ago. Sir, I do not think any defence is required for that policy, except the defence of which every honourable Member who hears me knows every detail. I thought—we thought—in 1888, that it would have been better to make this alteration in the law of evidence—an alteration extending to every part of the United Kingdom. We still think that the case of a reform in English procedure would be a reform also in Irish procedure, and I do not in the least conceal the fact that, while we have not changed the general views we have held, we have found it necessary and desirable to change the policy we had adopted. Sir, my right honourable Friend has stated that the true Unionist principle is that every Measure applied to one member of the United Kingdom should be applied to all. That is not my view of the Unionist policy, nor is it a view put forward, as far as I know, till to-night, of what that policy ought to be. The Unionist policy is that the representatives of all three portions of the United Kingdom should have a voice in the legislation applicable to any part of that kingdom; but it is not the same proposition, nor is it a proposition to which any of us could give assent, to say that whenever you pass a Bill for any part of the United Kingdom that Bill is, ipso facto, from the fact that it is passed for one part of the United Kingdom, to be extended to every other part. Those are not Unionist principles, and my right honourable Friend has borne a most distinguished part in working a Measure which, though it did not fundamentally differ in its principles from the legislation applicable to other parts of the United Kingdom, did differ in its machinery—I mean the Crimes Act, now applicable to Ireland. My right honourable Friend, I am sure, will be the last person to say that we have before us, if we are true Unionists, this alternative, and this alternative alone, either of extending the rimes Act to every part of the United Kingdom or of abolishing it altogether.
§ MR. CARSONI quoted the admission that where the principle is applicable to the three countries, in that case the legislation ought to be the same; and it was admitted in the earlier Debates that the principle applied to one country as well as to the other.
§ THE FIRST LORD OF THE TREASURYI do not wish to engage in a personal repartee with my right honourable Friend. I entirely admit the fact that the general principle we have laid down and advocated in this Bill with regard to giving evidence by prisoners on their trial is applicable to Ireland, as well as to England, and we have not departed from the view we originally held—that that reform would be desirable both to the west of St. George's Channel as well as to the east. I may remind the House, however, that the gradual extension of a reform of this kind is really not inimical or contrary to any principles either of Unionism or of common sense. I think I stated in the Debate which took place earlier in the evening that in the United States the change we are now discussing began in the State of New York, then extended to the Federal courts, and gradually moved from state to state, as it was found to work well in the interests of justice and sound criminal procedure. There is nothing, therefore, intrinsically absurd in applying this reform to one part of the country and leaving the other part of the country untouched. What are the circumstances with regard to Ireland? The Members representing the majority of the Irish constituencies announce their unalterable objection to the Bill, but, I hope that when they see how the Bill works in England, how it works not at all against the prisoner, but in the interests of general justice, they may gladly adopt the principle in Ireland, as it has been gladly adopted in State after State in the American Union. But, Sir, in the meantime we have had to face this Parliamentary alternative, and I do not wish to disguise or minimise it in the least. Either we had to omit Ireland from the benefit of this reform, as we think it, or we had to delay the granting of the reform to England 728 and Scotland for an indefinite period. Now, Sir, an honourable Member suggests how contemptible a policy that is when you have a majority of 150. Well, Sir, I have never observed that among the advantages of a majority of 150, which are many, was to be counted the advantage that discussion by gentlemen not belonging to the majority of 150 is materially diminished. In the Division Lobby they have little chance, but on the floor of this House a certain number of energetic gentlemen are quite as capable of coping with a 150 majority as they are of coping with a 50 or 30 majority. It is a mere question of Parliamentary dynamics whether this large majority behind us, diminished by the most important unit of my right honourable Friend, was not sufficient to enable us, within the limits of time at our disposal, to carry the reform for England and Ireland also. Well, Sir, I am not ashamed to confess in this House to men who are, after all, practical politicians, and who are quite as well aware as I am of the limitations which must attach to every legislative effort, that the reasons why we did not extend this Measure to Ireland were Parliamentary reasons, and Parliamentary reasons only, and if honourable Gentlemen think it a discreditable confession, they have the right to make what use of it they like. Sir, we thought, rightly or wrongly—wrongly, as my honourable Friend thinks; rightly, as we think—that this was a great reform in criminal procedure. That view has been stated publicly to the country 10 or 12 years ago. A Measure embodying the reform had been passed time after time in the House of Lords, and it became a public scandal in this House that, having passed a Bill by large majorities on the Second Reading, nothing should have been done to carry the proposal into effect. Well, Sir, I regret that the opposition of the representatives of Irish opinion has prevented this Bill being extended to Ireland. I will go the length of saying that until their opinion in this matter changes I have little hope that the reform will be extended to Ireland. I have little hope that any other Government will extend it to Ireland against the wishes of the Irish representatives. But granted that 729 fact—a fact which we did not call into existence, a fact for which we are not responsible, a fact for which we are not to blame—I ask whether it was better to pass the Bill for that portion of the United Kingdom which was desirous to receive the benefits of the Bill, or to wait for an indefinite period until a reform which we thought so desirable might be extended not merely to England and Scotland, but to Ireland also. Sir, the alternative was before us. Who will blame us for choosing the horn of the dilemma we did? Who will blame us for extending it when we were able to extend it, and say we were not right to pass a Measure, undoubtedly incomplete as regards the area over which it extends, but as far as that area is concerned fairly conclusive as to the matters involved? Sir, I have been perfectly frank. I have not represented to the House that I hold an opinion which I do not hold. AJS the Irish have shown in so unmistakable a way that they will not accept it, and as they have, in the existing Parliamentary conditions, power to prevent the Measure being extended to England, I claim that we were absolutely right in the course we pursued. If you choose to say that shows deplorable weakness on the part of the Government, or a deplorable defect in our Parliamentary machinery, I will not quarrel with either proposition. I will not take the trouble to deal with it seriously until a gentleman comes forward and shows how one difficulty or the other could have been surmounted. Under those circumstances, having given a pledge to the Irish Members that this Bill should not be extended, I must vote against the Amendment of my right honourable Friend, and I hope that every Member on this side of the House will feel that the arguments I have brought before them are conclusive, and that he ought to accept this Amendment of the law for the part of the United Kingdom to which it is confined, and to wait for some favourable time when the blessings we have secured ourselves may be extended to Ireland.
§ MR. DILLONThe right honourable Member has faithfully adhered to the pledge he gave to the Irish Members. Some of the principles he laid down in his speech I can hardly agree with. There 730 is no reason on earth why, if a majority of the English Members desire a reform in their laws, they should not have it, even although a majority of the Irish Members may hold different opinions. I can assure the honourable Members who are interested in this Bill and who think the reform will be beneficial to prisoners that the opposition to the Bill would have been of an entirely different character if Ireland had been represented in the Bill, and it would have been necessary to have made the Bill one of the leading Measures of the Session, and to have set aside for it a considerable portion of Parliamentary time. We the Irish Members have felt it to be our duty, out of a desire to return good for evil to the people of Great Britain, to express our views on the subject, but to express them extremely briefly. But if it had been proposed to force upon us a reform in the criminal law, to which four-fifths of the Irish Members are bitterly and irreconcilably opposed, if it had been proposed to force this upon us as a reform in favour of the prisoner, undoubtedly we would have exhausted every form of the House in order to resist so monstrous a proposal. So, from that point of view, the right honourable Gentleman is entirely justified in the course he has taken. I do not propose to take up any time in arguing this point, because I trusted to the pledge of the right honourable Gentleman in the matter, and he has honourably redeemed that pledge. I am glad to see that the experiment is to be tried in corpore vili in Great Britain, and we shall study the operation of that experiment; but I think, so far as my humble lay and uninformed judgment goes, it will be a good many years before we are converted to this opinion.
§ MR. DUNCOMBE (Cumberland, Egremont)I must say that nothing that has fallen from the right honourable Gentleman the Leader of the House has led me to alter my opinion in the least degree as to the advisability of excluding Ireland from the operation of this Bill. Although I do not claim to be so important on this side of the House as my honourable and learned Friend, I cannot say I claim to be as disloyal. If the right honourable Gentlemen who are 731 sitting on the Government Bench are really and heartily in favour of this Bill they are belying all their professions, both inside and outside this House, in excluding Ireland from its operation. If there is one thing which justifies our existence as the Unionist Party in this House, it is that equal privileges and equal rights should be extended to Ireland—to the three countries—and although we cannot always agree on this side of the House with some of the arguments put forward by Members on the other, I am sure we are all agreed in this, that we can ill afford to lose the knowledge and ability and courtesy which they bring to our Debates. Well, Mr. Lowther, if the Government are really in favour of this Bill—which I for one do not believe—if they are really in favour of it, let them extend it to Ireland as well. The very fact of their not extending it to Ireland proves that they themselves do not really believe in its justice. How can they get out of the fact? The only thing they are really afraid of is the united opposition of the 103 Irish Members. If it is good for Englishmen, Scotchmen, and Welshmen it must be equally good for Irishmen, and I for one entirely fail to see what Irishmen have done that they should be deprived of the inestimable benefits which the honourable Gentleman says will accrue from passing this Bill into law.
§ MR. SWIFT MACNEILL (Donegal, S.)Sir, I am a benevolent man, and on this occasion I shall be in the same Lobby as the Leader of the House, because I am going to vote against the Amendment moved by an ex-Irish officer of the Crown. But, Mr. Lowther, being a benevolent man, I will try to defend the Government from an attack made on them by the right honourable Gentleman—an attack from which they will not recover. I said I am a benevolent man, and I will try and help a lame Government over the stile. I recollect this discussion, and Bills of this nature having been before the House before, and I am going to go into the same Lobby as the right honourable Gentleman, but on different grounds. He is going into this Lobby on Parliamentary grounds; I am going on grounds 732 of high Irish policy. I will, first of all, take and read an extract from a speech made in this House by Sir Henry James against including Ireland in the provisions of this Bill, and Sir Henry James was as good a Unionist as my right honourable Friend. Sir Henry James, in fact, lost by Unionism more than my right honourable Friend ever gained by it, and that is a strong expression. The date of this extract is 22nd March, 1888. It was at that timei—the height of the coercion régime—that my right honourable Friend, ably assisted by Mr. Patrick O'Brien, was making Ireland comfortable for everybody on this side—not without reward. Now, Sir, this is what Sir Henry James said on the 22nd March, 1888—
Anyone who had watched the conduct of criminal cases in England would know that no prosecuting counsel ever thought of exercising any ingenuity to secure a conviction. The judge was always careful that no prosecuting counsel should for a moment exceed the line of his duty.Then, Sir, comes a pious wish—He hoped and believed that was the state of things in Ireland; but he was not quite sure that in some class of cases there would not be an acuter phase of forensic rivalry than would be displayed in this country, so that the efficacious principle might not be the same in Ireland as in England. But then there was the question of prisoners who did not wish to be called English prisoners, he was sure, as a rule, who would regard this Bill as a beneficent and merciful measure in their favour, and would in most cases wish to be examined on their trial. But they must take Ireland as it was. They must take the opinion of Ireland as it was, and they must take into consideration the opinions of the representatives of the Irish people as they were. Although he thought they would be teaching the Irish people wrongly, yet they would teach the Irish people that this was a hostile Measure.Now, Sir, I have not troubled the House with a long quotation. That was the opinion of Sir Henry James. I will now refer to Lord Russell, the Lord Chief Justice of England, who was at that time in favour of the examination of prisoners before English tribunals. What Lord Russell says (and now the First Lord of 733 the Treasury will see how honourably I am acting) is—In the interest of the Bill itself, which, after all, was a new departure in our judicial system, it would he better to see how it operated in England before extending it to Ireland. Whether rightly or wrongly, under the existing system, a widespread distrust of the administration of the law was unquestionably felt. He would relate a little incident to illustrate that feeling. During the trials of the dynamitards at the Old Bailey, before Judge Hawkins, a few years ago, a friend of his, a respectable Presbyterian minister from the north of Ireland, was desirous of hearing the trials, and he (Sir Charles Russell) obtained him a pass to the court. Subsequently the clergyman called on him at his chambers, and said, 'I was never more astonished in the whole course of my life! Why, a criminal trial in the Old Bailey is not like what I am accustomed to see in Ireland. The prosecuting counsel and the judge were most anxious that nothing unfair to the prisoners should be mentioned, while in Ireland it is a scramble on the part of those who represent the Crown to secure a conviction.'
§ MR. CARSONAfter the candid statement of my right honourable Friend I will ask leave to withdraw my Amendment. [Cries of "No, no!"] I moved this Amendment in the absence of the honourable Member for the purpose of obtaining an explanation from the Government as to why Ireland is excluded from the scope of this Bill. The answer given by my right honourable Friend is a perfectly candid one. He has stated that he has not gone back on the views expressed by himself and his colleagues in 1888, but he has stated that his reasons for not including Ireland in the Bill were in order to save the time of Parliament. Sir, I admit that that is an absolutely candid confession, but I admit that to me, as an Irish Unionist and a very small minority, it is absolutely disappointing. I cannot but think that when the words of my right honourable Friend come to be read to-morrow by Unionists in Ireland they will be in despair at the doctrine laid down. My right honourable Friend, I am afraid, rather misconceived what I said. What I said was that when a general principle was admitted to be equally just for all parts of the United Kingdom, if a law was passed, it ought to be made applicable to all parts. And 734 it was because it was said in the speeches in 1888 that this general principle was applicable to all parts that I said Ireland ought to be included in this Bill. But what is the rule, if I may so call it, that my right honourable Friend has laid down? I think his statement tonight will be of far wider reaching consequences than the effects of this Bill, because he has laid it down that when you have a general principle brought forward which you believe to be just for the whole Kingdom, it ought not to be applied to a particular part of the Kingdom because the representatives of that part are determined to oppose it.
§ MR. CARSONThat leads the House to this: that upon a general principle which you conceive to be just for the United Kingdom you are not to have that principle affirmed or disaffirmed by the whole vote of this House, but by a vote of a part. That leads us to the conclusion that no matter how just may be the principle in the view of the Government we support, no matter how large the majority the Government may have to enable them to carry out their principles, they will not carry out their principles in favour of the majority who are supporting them because they are opposed by a particular body in the House. All I say is that, to my mind, that doctrine in its logical conclusion and consequences must lead to Home Rule. I want to know this: if, when a principle is admitted to be just by a Unionist Government in power, and we are prepared to support that principle, they tell us that, no matter how just the principle may be and no matter how large a majority there may be in favour of it, it cannot be carried out because there is a minority against it, what is to happen to the minority in Ireland? Sir, nobody admires more than I do—and I certainly know I ought to—the courage and ability of my right honourable Friend, and if I were to express my own personal feelings I could only say that any vote I give against him, or any words I utter in opposition to his 735 policy, are matters on which I have to fight with my own conscientious feelings; but when these propositions are put forward, which, I believe, lead to Separatist doctrines and hopelessness on the part of the Irish minority. I feel it is my duty to get up and express them. I can only say that nothing has disheartened me more, as representing a Unionist constituency in Ireland, than the statement put forward by my right honourable Friend to-night, which, in effect, shows me that we cannot hope for anything from a Unionist Government. I ask leave to withdraw the Amendment.
§ THE FIRST LORD OF THE TREASURYBefore that motion is put and, I hope, agreed to, I think it is absolutely necessary that I should say some few words in reply to the speech just delivered. If I wished to make a personal point, against my right honourable Friend I should be inclined to ask the Committee how it comes about that by far the ablest opponent of this Bill should suddenly, when the Bill is drawing to a conclusion, appear as its advocate—I had almost said, as its passionate advocate—in order to secure that so great a blessing given to England should be extended to his native country. Would any man who had just come into this House and listened to my right honourable Friend for the first time in these Debates have supposed that he was not the warmest advocate of the Measure, that he was not pressing it on a reluctant Government, that he was not earnestly and warmly desirous of seeing his own countrymen endowed with these blessings which are being conferred on the inhabitants of these islands? And would not he have been astonished had he been told that my right honourable Friend has led the opposition to this Bill, and he was by far the most persistent of its opponents, and that when, at the end, he desires to extend it to Ireland, it is in order that he may make a point against the Unionist Government? Now, Sir, I do not think I overrate my powers of lucid exposition, but, personally, if I had ever been supposed 736 to take a high view of them my self-satisfaction would have been altogether dashed by the interpretation which my right honourable Friend has put upon my words. He has represented the opinion of the Government as being this, that whenever a majority of the Members representing one portion of the United Kingdom, be they English, Scotch, or Irish, are opposed to a particular proposal, that is a conclusive reason for not pressing that proposal on that portion of the Kingdom. That is the proposition my right honourable Friend put into my mouth, and which I frankly admit, if accepted by this House, would mean Home Rule in disguise, a very thin disguise. But I not only never gave cause for such an interpretation of my words, but I stated precisely the contrary. I stated that, in my opinion, the Unionist principle was this: that while particular legislation need not necessarily apply to the whole of the United Kingdom, the representatives of the whole of the United Kingdom were asked to give their opinion upon it and pass it into law. That is my proposal. What is there in that to cause alarm to the loyal minority in Ireland? I stated I believed what is obviously the fact, that Parliamentary time being limited, a Bill which was strenuously opposed by a large section of Members would require much more time than one not so opposed, and that it was practically impossible in the time at our disposal to carry a Bill for the whole of the United Kingdom if a large body of opinion was bitterly and irreconcilably opposed to it. Is that contrary to Unionist principles? Is it not common sense? Is it not the consideration which every Government, and every Leader of the House, long before Home Rule was thought of, has had to consider? It is the elementary principle of Parliamentary Government, and until you find some machinery by which the will of the majority can be impressed instantaneously upon the will of this House you will always have to consider in arranging your Parliamentary programme not only the amount of opposition to your Measures, but the time that the opposition will occupy. 737 But, Sir, I confess that I deeply regret the second speech of my right honourable Friend, because words coming from him, from a Member of this House who has made a deserved reputation in maintaining the cause of law and order in Ireland, the opinion of such a man carries, and deserves to carry, immense weight with the great classes whose very fate is bound up with the maintenance of law and order. And, Sir, for my right honourable Friend to say that we are guilty of betraying the Unionist principle simply because we take into consideration the necessities of Parliamentary time, that he should formulate an accusation against this Government which should go forth to people who are little qualified to judge of the Parliamentary situation, and who may take my right honourable Friend's Words in a seriousness which in other moments he himself, I am sure, would not attribute to them—that is a blow aimed at the Union, of which my right honourable Friend is one of the ablest and most disinterested supporters, and I confess I regret to have heard such words from his mouth. Sir, I am sorry that this element has been imported into our Debates. Until this Amendment was moved I do not think I ever heard a more interesting or more concise Debate on a great question than this had been. My right honourable Friend has not been content with introducing this fiery element of controversy, but he has made his attack on the Government of which he is a supporter in such a shape that it will not only injure that Government, which is a very small matter, but will injure a cause far greater than his Government or any Government, the cause of the Union between England and Ireland, and the cordial feeling of trust between communities equally interested in that Union who live on the two sides of the St. George's Channel. That, Sir, is an injury to the Union which no one but my right honourable Friend, or few besides my right honourable Friend, could inflict, because few have the same authority in Ireland; and it is a matter of the deepest sorrow to me that this wound to the Unionist cause should be given by one whose fame, whose reputation, has been in the past, 738 and will, I am sure, in the future, be inextricably bound up in the maintenance of that great cause.
§ MR. BROADHURSTI rise for the purpose of saying that if there should be a Division I shall have pleasure for once in voting with the Government, on this ground: that I believe the Bill to be thoroughly bad in every respect, and therefore I vote for limiting the area of its operations as much as possible. I think that is a sound and good reason, and I only wish that the people of England had the same influence with Her Majesty's Government as the Irish Members appear to have in this matter. May I say that I understood the right honourable and learned Member on the other side not to argue in favour of this Bill, but to say that if Her Majesty's Government believed it to be what they say it is, then why curtail its operations? That I understood to be the argument put by the learned Gentleman. Therefore I think the Leader of the House did not quite fully understand the speech of the learned Gentleman. May I say also this: that the words of the Leader of the House did, in my opinion, convey the same impression to every Member of this House who heard them as they conveyed to the right honourable and learned Member. The word of the Leader of the House has gone forth; it cannot be recalled. There has never been a greater concession to the demand for Home Rule for Ireland uttered in this House by any speaker than was made by the Leader of the House to-night, and those words can never be recalled. They will do their work, and will justify every attempt that the Opposition has made from time to time to give Ireland that measure of self-government which, in their opinion, it so strongly deserves.
§ MR. LABOUCHEREIt is very gratifying to us on this side of the House to listen to these discussions on the other side amongst the Unionists as to what are Unionist principles. We have heard a great deal in this House and in the country as to Unionist principles, and now we find a great distinction paraded in the House between the Unionist principles of the First Lord of 739 the Treasury and the Unionist principles of the right honourable and learned Gentleman the Member for the University of Dublin. The First Lord of the Treasury said that he needed no apology for the speech which he made. I can assure him that he needs no apology on this side; we are extremely grateful to him, and we are extremely grateful to the right honourable and learned Gentleman opposite. But, Sir, although the natural bias of most of us on this side of the House is to vote on general principles against the Government on anything and everything, in this particular instance I shall vote with Her Majesty's Government, but on very different grounds to those advanced by the honourable Gentleman who has just sat down. The honourable Gentleman said he did not wish to enlarge the area of this Bill, because he believed it was a thoroughly bad Bill. I should be glad to vote in favour of its extension to Ireland, because I believe the Bill is a thoroughly good one. But, Sir, I am a Home Ruler. What are my principles with regard to Home Rule? I want these Irish Members to have a Parliament of their own, and in their own Parliament to decide absolutely, without let or hindrance from England, their own affairs. But they cannot get their Parliament. Under those circumstances I have to get as near to that as possible, and therefore whenever I find a question affecting Ireland raised in this House I simply seek to discover what the majority of Irish Members wish; and, except in the matter of an occasional raid on the English Treasury, I hold that, if there is a majority in favour of any matter, without troubling myself whether it is right or wrong, I should vote with that majority; because, although a great many Englishmen parade their knowledge of Ireland, I do not pretend to know so much of Ireland as any one of the Irish Members themselves. Therefore I surrender my judgment in regard to all Irish matters into their hands. Here we find that the Irish Members object to this Bill. Well, I think they are mistaken; I should like to argue with them, and convince them that I am right. I cannot do that at present, and I have to accept the fact that they reject the Bill. But there is another reason. It would 740 be grossly unfair if we were to exclude this particular clause. There was undoubtedly an understanding between the Government and the Irish Members in reference to the matter, and the result of that understanding was that the Irish Members did not oppose the Bill with that energy and zeal that they might have shown had it been proposed to apply the Bill to Ireland. Under those circumstances, after this Bill has got so far, it would be most unfair to make such a vital alteration as to strike out this clause. As a Home Ruler, and believing that fairness and honesty towards the Irish Members justify the Government in adhering to this clause, I should certainly have supported them had the Amendment been pressed to a Division.
§ MR. BUTCHERI desire to express the feeling which I think is shared by a good many others of regret, and I would almost say indignation, at the gratuitous attack made upon the Government by the right honourable and learned Gentleman the Member for Dublin University. What was his object? Was his object to improve the Bill, or was his object to give a stab in the back to its friends? He dislikes the Bill; yet he moves an Amendment not for the purpose of improving the Bill, but for the purpose of inflicting an injury upon the Government. Now, what is the truth with regard to this? The simple fact appears to be that Parliamentary exigencies would not allow this Bill to be carried into law if it were extended into Ireland, and in order to carry a law which England desired Ireland was cut out of the Bill. That is a very simple and, in my opinion, a very justifiable mode of dealing with the subject. But what does the right honourable and learned Gentleman represent? He says this is a great, boon, ardently wished for by all the loyal minority in Ireland. That is what I understand.
§ MR. CARSONMay I say that I never said anything of the kind? I really think my honourable and learned Friend could not have heard my speech.
§ MR. BUTCHERIn point of fact, I heard every word of it, and I understood the right honourable and learned Gentle- 741 man to say that this was a great boon desired by the minority and refused at the wish of the majority. This is put forward, as I understand, as an injustice to the minority in Ireland, and as a violation of Unionist principles. Sir, I see no falling away from Unionist principles in the mere fact of not applying this Bill to Ireland. I only rose to express my regret at the gratuitous, unnecessary, and, I think, the irrelevant attack made upon the Government by the right honourable and learned Gentleman.
§ MR. CARSONMy honourable and learned Friend on rising just now described himself as an Irish Unionist. Sir, I am not only an Irish Unionist, but I represent a constituency which is overwhelmingly Unionist, and I will only say in reply to my honourable and learned Friend's challenge to me that I am prepared to abide by the opinion of my own constituents, and if the honourable and learned Member thinks that he better represents Irish Unionist feeling upon this matter than I do, I make him this fair challenge. I will to-morrow resign my seat, and test the question whether I or my learned Friend more adequately represents Irish Unionist feeling. There is one thing in which the House, I think, will at all events agree with me, and that is this: if my honourable and learned Friend was about to attack me for what I said, he might at least have put my argument fairly. I am sure it was entirely unintentional on his part that he represented my argument in the way he did. I should think that any person who listened to me must have known that I commenced my speech on this particular Amendment by saying that taking it from the attitude of the Government, who said this was an immense boon in principle to innocent persons, I could see no reason if that were so why it should not be applied to Ireland, and the subsequent speech that I made in answer to my right honourable Friend the First Lord of the Treasury was to point out that the logical conclusion of what he had stated was this, that no matter what was the general principle that was admitted by the Government to be just, he had stated that Parliamentary exigencies should decide whether that principle was ever to be applied to 742 the minority in Ireland, or whether it was to be robbed of the benefits of the Bill. So that that had no reference to the particular proposals of this Bill, but was a general matter. I ask my honourable and learned Friend, does he really mean to accuse me of any ulterior motives in giving what he was pleased to call a stab to the Government? What reason, what right, have I, except from my honest convictions, to say anything in this matter? My right honourable Friend the First Lord of the Treasury, who has had, not for the first time, to reproach me with opposition in reference to particular questions of Irish policy, at all events, did me the justice of assuming that what I said was based upon my honest convictions, and it remained for my honourable and learned Friend to get up and suggest that I had done what I had done—which must, under the circumstances, have been painful—simply because I wished to give the Government a stab. All I can say is, I may be right or I may be wrong; but I hope the Committee will believe that I had no indirect motive, and I believe that in what I have said I will have the sympathy and the backing of the large majority of the Unionist party in Ireland.
§ MR. BUTCHERI only rise to say that I do not accuse, and never intended to accuse, my right honourable and learned Friend of any indirect or ulterior motive. I never intended to convey such an impression, and if I did I am extremely sorry. What I did intend to convey was that I could not understand the reason for his attack, and that it appeared to my judgment a perfectly gratuitous one, and one made not in the interest or advantage of the Bill. But I wish in the most direct terms to dissociate myself from any notion of accusing my right honourable and learned Friend of any ulterior or improper motive.
MR. GIBSON BOWLESIt is with profound sorrow that I have listened to two influential Members of the party which I support—
[Owing to interruption and cries of "Divide," the honourable Member's remaining remarks were inaudible in the gallery.]
§ Amendment, by leave, withdrawn.
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cc743-51
- CLAUSE 5. 3,528 words, 2 divisions