HL Deb 18 March 1858 vol 149 cc313-9

LORD BROUGHAM, in rising to move for certain Returns connected with the County Courts, said that while doing so, he wished once more, and with practical views, to call their Lordships' attention to this very important subject. He had so often dwelt upon the great services of these courts, and the vast mass of business transacted in them, that he had now little more to do than to state the amount of that business from their establishment in 1847 to the present time. He might, however, remind their Lordships, that during the first ten years of their establishment there were 4,660,000 plaints heard in those courts, and the stuns claimed amounted to £14,250,000. The amount recovered under judgments was £7,300,000, and the sums paid into court amounted to £1,000,000; making altogether in the ten years above 4½ millions of suits for 14¼ millions of persons, and 8¼ millions recovered by the plaintiffs. The business had steadily increased since that period, and if the Returns were granted for which he intended to move, he believed it would be shown that in the year 1857 upwards of 700,000 plaints had been brought into those courts, being about double the business transacted ten years ago. He need scarcely remind their Lordships that the inevitable consequences of such a system of local judicature was that a vast number of claims were settled out of court; for when the parties knew that there was no chance of resisting a just demand, they settled the matter without delay, trouble, or expense to the suitors. If, therefore, the number of suits had realized £9,000,000 sterling, and there were above 6,000,000 plaints, it was but reasonable to suppose that there were many hundreds of thousands of cases in which it had not been found necessary for the parties to obtain the judgment of the Court. The beneficial effect of the establishment of those courts upon the comfort and peace of the community was incalculable, for nothing was more likely to create wide-spread and deep-rooted discontent among men, especially of the humbler classes, than the denial of justice which he feared bad occurred too frequently previous to the establish- ment of these local tribunals. When they were first established their jurisdiction was limited to £20, but it was afterwards extended to £50. The influx of business in 1847 and its increase in 1851 was enormous, because previously to those periods there was no remedy for the unhappy plaintiff but an appeal to one of the superior courts in Westminster Hall, which, in the great majority of cases, he was unable or unwilling to carry on. The great objection made to the Act for the examination of parties in civil suits, which he had proposed without success in 1845, and which, owing to the expense of the County Courts, he had been fortunate enough to pass in 1851 (and which he had no hesitation in saying had produced the greatest and most beneficial change of the law in our times (he spoke of it thus freely because he was willing to give the credit to his dear and revered friend, the late Lord Denman, whose Bill of 1842 laid the foundation) was, that if leave were given to the parties immediately interested to be examined, there would be endless perjury. That however, he (Lord Brougham) denied at the time, and subsequent experience had proved that he was well warranted in that denial. The fact was, that the crime of perjury had diminished instead of increasing since the Act passed. The amount of perjury depended to some extent on the number of witnesses examined, and as by that Act the number of witnesses was reduced, the effect was to diminish perjury pro tanto; but the parties were not found to forswear themselves, as bad been predicted. The experience of all the Judges showed that the tendency of the Act was not to increase the crime, as the number of commitments for perjury had been considerably less than before the passing of the Act. The number of commitments for perjury in the years 1851 and 1852, immediately before the Act came into operation, was 136, whereas, in the two years 1853 and 1854, immediately after it came into operation, the number was only 107. Now, the commitments for all description of crime in the year 1851–52 were 27,000, and in the year 1853–54, 28,000; therefore it was clear that the reduction in the number of commitments for perjury was not to be attributed to a general decrease of crime. Such being the satisfactory operation of the Act heretofore in relation to civil suits, he now proposed that this great improvement in our law should be carried to its full and natural extent, so as to render it complete; he proposed that the principle of examining the parties should no longer be confined to civil suits only, but extended to criminal cases also. He did not lay this down as a proposition to which it was impossible to make any objection, but still he thought that the expediency of the extension was such as to overbalance all objections. By the law, as it stood at present, no person charged with felony or misdemeanour could give evidence on their own behalf; neither could a wife give evidence in favour of her husband, or a husband in favour of a wife. The late Recorder of the City of London, his right hon. and learned Friend (Mr. Stuart Wortley) had, in the debate on his (Lord Brougham's) Bill stated the hardships and injustice which he had seen occasioned by excluding the evidence of the accused person, or of those immediately related to him; and he mentioned the particulars of a case tried before him, in which, if the man's wife could have been examined, there would have been no doubt in the minds of the judge or jury of his entire innocence of the offence imputed to him. The learned Recorder hesitated as to the examination in civil cases, but if that were carried, he held that it should not stop there. Now, suppose a person were charged with an offence, for accusing him of which he felt there was not a shadow of ground, could there be anything that he would more court than to have the opportunity of being examined and cross-examined by the counsel for the prosecution, after stating the facts in his own defence? The statement which a man was now allowed to make, being without the sanction of an oath, and not being subject to cross-examination, went for no more than the speech of his counsel or his plea of "not guilty." What he (Lord Brougham) therefore proposed was that if a defendant in a criminal suit chose to offer himself as a witness to be examined on the circumstances relating to the charge, and to be cross-examined by the prosecutor, he should be allowed to do so upon oath, subject to that cross-examination; see the gross inconsistency of our procedure as it now exists. Under the present practice all the parties to criminal proceedings were not excluded from giving evidence. On the contrary, one party—the prosecutor—was heard. Let it not be said that, technically, the prosecutor was not admitted, because the Crown was the prose- cutor. In reality, in all cases except ex-officio prosecutions—that is, in ninety-nine cases out of a hundred—there was a private prosecutor, and he was examined and cross-examined on oath. But the defendant could not be examined. And what was the consequence? It often happened that the prosecutor having been heard, and the defendant either acquitted or convicted, he subsequently turned out, and dragged the prosecutor into court to defend himself against a charge of perjury, or some other charge; and then his mouth was shut in turn. But it was not confined to that. Were there no criminal matters in which the defendant was examined on oath? Since the Act of 1851, in cases of various kind—it might be of foul conspiracy, of scandalous fraud, even of fearful violence, provided the case assumed the form of a civil action instead of an indictment or information — the defendant was examined as well as the plaintiff. Then how did the matter stand in bankruptcy and insolvency? A party not only might be examined if he pleased, but he was examined whether he would or not; and that, too, without the protection of not being bound to answer questions tending to criminate him; and on his answers he might be criminally tried. He was aware of the objection, that by allowing a defendant to be examined, a great advantage would be given to the crafty and skilful malefactor over a simpler and less experienced man, that the one would be much more likely than the others to persuade a jury to acquit him. That might be so; but he was not afraid of the guilty escaping on that account. He trusted so confidently to the power of cross-examination by the counsel for the prosecution, that he had no fear of the march of justice being impeded by the talents of the criminal—that talent of interrogation of which the great Roman rhetorician had said, Non disciplinâ in scholis traditâ, sed naturali acumine et usu contingit. It might be said that allowing the accused to make an election whether they would be examined or not would lead to the inference that all who declined to tender themselves were guilty: but in the majority of cases the ground of declining to take advantage of the law would be the conciousness of inability to stand the test of cross-examination, and he could see no very great hardship in such persons being supposed to be guilty. He considered that the measure which he contemplated introducing would be imperfect, if it did not embrace the provision which his Evidence and Procedure Bill of 1854 contained, to deprive witnesses of the protection now given them against self-crimination, requiring them to answer, though they might allege the risk they ran of affording help to a prosecutor, but preventing their deposition from being used in evidence against them, except in a prosecution for perjury. How utterly inconsistent the existing rule is with the nature of a witness's functions, with common sense, and with itself, as well as with the whole of our process in bankruptcy, and of our occasional acts for inquiring into the conduct of public bodies, especially of boroughs, I have, on former occasions, had the opportunity of explaining and of illustrating by numerous instances. As the law has of late been laid down, after some fluctuation of opinion among Judges, although on several points a discrepancy still exists among the judicial authorities, it may be taken that a witness is entitled at any period of his examination, and after he has gone voluntarily a certain length in his testimony, to stop short and refuse to go further, upon the simple allegation without any specification whatever, that in his belief the answer to the question proposed might have a tendency towards his own crimination, that so absurd a power of refusing his testimony should be much longer continued to a witness seems wholly impossible. When on this subject, he would refer to a most pernicious practice which had grown up in modem times on the part of some magistrates, and even in persons of higher position, fostering the attempts of criminals to escape by warning them against answering any questions that might by possibility criminate them. It was not only said, "remember what you say will be taken down, and may be used against you at your trial," but they were further told, "You had better reserve your defence, for all you say may be used against you elsewhere." He was far from approving of the French system of the Judge himself at their trial examining and cross-examining prisoners; but he thought that a change in our present system would be advantageous. The prisoner would be entirely at liberty to present himself for examination as the consequences of his own statement being received in evidence, or to refuse being examined, and in that case lose the benefit of his own testimony. To return to the subject of the County Courts—he had stated the great benefits which had been derived from them, including the improvement of our law of evidence which they had enabled us to accomplish. The amount of business transacted in them was equal to ail that was transacted in the supreme courts of Westminster Hall. The business in the latter had, on the institution of the County Courts, considerably fallen off, although it had lately somewhat increased. In the County Courts the increase had been regular from the first until now; and he ventured to say that more money was now recovered in the County Courts than in all the superior courts put together. Of the suits brought in the superior courts, only 2 per cent ever were tried; of the County Court plaints one half. He stated these circumstances in support of his earnest prayer that the Government would reconsider the resolution come to by the late Government of equalising the salaries of the County Court Judges, by cutting them down, instead of giving what the wise liberality of Parliament had originally decided for them. They were all to be reduced to £1,200 a year, including the successors of those who now had £1,500. His Lordship concluded by moving for— Account of the Salaries received by the Judges of the County Courts, and of the Salaries, Fees, and Emoluments received by the Registrars, Deputy Registrars, Bailiffs, and other Officers thereof, during the Year from 1st January to 31st December, 1857; Also, Account of all Fees levied and taken in the County Courts during the year from 1st January to 31st December, 1857, and paid over to the Consolidated Fund: And also, Account of all Sums paid out of the Consolidated Fund during the Year from 1st January to 31st December, 1857, to the Judges, Treasurers, and other Officers of the County Courts for Salaries, Travelling Expenses, or otherwise; distinguishing the respective amounts under distinct heads.

LORD CRANWORTH

begged to correct a mistake into which the noble and learned Lord had fallen in reference to the salaries of the County Court Judges. The late Government did not oppose "the wise liberality of Parliament" in that respect. The fact was, the Mouse of Commons would not give more. He would not say that the late Government thought the House of Commons wrong.

LORD BROUGHAM

said, the House of Commons voted a larger sum, but it was the late Government who reduced it.

LORD CRANWORTH

assured the noble and learned Lord it was a mistake on his part:—the Resolution relative to the sala- ries of the County Court Judges was the act of the House of Commons, and not of the Government. With reference to the question of examining criminals vivâ voce, he did not expect to have heard his noble and learned Friend introduce so important a question on a Motion for certain County Court returns, and he ventured to state that their Lordships were not then in a position to give an opinion on it. He quite agreed with his noble and learned Friend that they were a little prudish in such matters, and no doubt often shut out the truth, when by a little relaxation of our rules it might be let in. It was an important question, which he was not prepared to discuss on the notice they had had. With regard to Magistrates, and the caution they give to prisoners, he reminded his noble and. learned Friend they were compelled by Act of Parliament to caution prisoners before asking them what they had to say to the charge. He had never yet heard that when a prisoner stated a plain, probable story, either before committing Magistrates at Sessions, or before the Judges, it was not received with all the weight and consideration it deserved: —he thought, indeed, it carried very great weight with the jury.

LORD BROUGHAM

explained, that his object in mentioning examination of criminals in connection with County Court returns, was to save time and trouble, and to make one statement serve two purposes; because, as soon as their Lordships granted him the returns, he should ask permission to lay on their Lordships' table a Bill on the other subject. The Commons had first granted £1,500 a year to all County Court Judges, when the late Government equalized the salaries by reducing the whole to £1,200; it was perfectly true that a Motion was rejected by the Commons to render all equal by taking the sum allowed in the former Session.

Motion agreed to.