§ LORD PENZANCE,in rising to move an Address for a Return relating to the revision and commutation of criminal sentences, said—My Lords, I make no apology for bringing this subject before the attention of the House, inasmuch as it is one which has attracted much public attention, and has done so in an increasing degree for the last few years. I may say, at the outset, that I do not desire to criticize, far less to impugn, the conduct, in this matter, of the present Home Secretary or of his predecessors; for I believe that under the system, such as it is, the authority of the Crown has been as wisely and properly administered as it could be; and as regards the right hon. Gentleman who now fills the office, no one can have acted with more discretion and judgment in the onerous and delicate task which he has to perform. What I desire to bring before the attention of your Lordships is the system itself under which our criminal law is applied; and, after tracing what it practically does, to ask whether it is one which ought to be satisfactory to the public. Now, the criminal law is administered in the first place by Her Majesty's Judges in the various assize towns, accompanied by all the solemnity which the majesty of the law demands, and with as much of outward pomp and show as people in these days would tolerate. The trial—say for murder—is had in open court before a Judge and a jury; and if it results in a conviction the learned Judge proceeds to pass sentence of death with extreme solemnity. No sooner, however, is this done than the scene is shifted from the open court to a private room in London, from the Judge on the Bench to the Secretary of State for the Home Department. To the right hon. Gentleman thus sitting in private the appeal lies, and to him applications are made, more or less urgent according to the nature of the case, by those who are interested in the fate of the convict. If he happens to be one of the upper class the effort is backed by numerous supporters; and if, as is sometimes the case, he belongs to any particular religious sect the exertions made are still more cogent. Statements are made to the Secretary of State, some on oath, but many not; and memorials are 1149 sent round for signature in the town where the convict has lived or where he is known, people of all sorts being asked to join in praying for a remission of the sentence. It is not in human nature that they should refuse; and accordingly a great mass of materials, some in the nature of a prayer, some of explanation, and some of excuse, find their way to the Home Secretary, upon whom is cast the duty of coming to a conclusion on the case, without any regular means of publicly investigating the statements made in these memorials. Well, the Home Secretary does as much as any man can do under the circumstances. He makes his inquiry. It very often happens that the crime is one which depends on scientific evidence, as in cases of poisoning, and there he has often a very delicate task. In other cases new or additional facts are alleged; but there are no authorized sources of information. I believe, indeed, that he sometimes sends down persons to make inquiries on the spot. Your Lordships will remark that the investigation is after the passing of the sentence, almost entirely one-sided. All the persons who memorialize, and all the statements made, are on the side of the convict, and everything is said on his behalf that can be said. Now, it is a curious feature, connected with the feelings of human nature, that before the prisoner is convicted the sympathy is entirely with the victim; but as soon as he is convicted that sympathy passes over to the prisoner—at least it is so in a great number of cases. Consequently, everything that can be said in his favour is brought before the Home Secretary. The inquiry, moreover, is private, and the public have no means of knowing what is going on; so that facts which might be brought forward to contradict the allegations of the prisoner's friends are not offered, because those who could do so do not know the importance or necessity of them. In the end, perhaps, the Secretary of State advises a reprieve. No sooner has the Home Secretary arrived at this decision, than the matter is brought forward in the House of Commons, where Questions are put to the right hon. Gentleman, asking for the reasons on which he had arrived at that decision. Now, it seems to me that the bare statement of this system of administering criminal law in 1150 the highest and most important cases is sufficient to condemn it. I have called it a system; but it is more properly a growth, for no one ever deliberately devised it. It is like the growth of the power of courts of equity in consequence of the binding rules of law, and arose from the impossibility according to law of having any further public inquiry into the ease, no matter how strong the facts are which may be adduced after the jury have pronounced their verdict. This total absence of any reasonable method of inquiry has forced mankind into the extravagant and absurd system of correcting justice through the prerogative of mercy. But, bad as this system is in practice, it is equally vicious in theory. If justice has not been done it is obvious that it should be done; but it should be done in the name of justice, not in the name of mercy. Mercy begins where justice ends; and this is a system of eking out imperfect justice by irregular mercy. It sins against all the regulations which ought to control us. The first great vice is its want of publicity. As a second inquiry it must be worse than the first, for it is private and one sided; whereas the first inquiry was in the face of day, and both sides were heard. Even, however, if it be more successful than the first in eliciting the truth, it has this incurable vice—that it does not appear so to the world. Now, it is almost as necessary in the handling of matters connected with justice, that people should feel that justice is done as that justice should be done; and in this method of correcting the results of a public trial, everything being done in private, there will always, however just the conclusion may be, be those who are not contented with it. They will be discontented, because what they have read or heard in court cannot fail to have impressed their minds strongly in one direction or the other; whereas what is done by the Secretary of State is under the sole guarantee of his high and impartial character and the respect accorded to his judgment, The effect of the system whenever a sentence is remitted, is to weaken the impressiveness of sentences passed in open court on those who are present at the delivery. The object of punishment is to deter from crime and the sentence passed upon criminals should be deterrent. But if 1151 the idea should grow up in people's minds that a sentence is not to be carried out, the effect of that sentence, with all its attendant solemnity, is indefinitely diminished. For a sentence to be effective, nothing is so necessary as that it should be certain; and there can be no greater evil than the feeling that whatever sentence may be passed is liable to be revised by the Home Secretary. Now, these evils are not incurable. What difficulty is there in constructing a tribunal which should do all that the Home Secretary now does? Such tribunal must of course contain a large share of the judicial element. It might contain the ordinary Judges of the land and members of the Judicial Committee of the Privy Council, or those who have held high judicial posts; and the Home Secretary might also be a member of it. There would be several conditions indispensible to its success, and the first of these is publicity. It should have the power of investigating in public, and all evidence should be on oath. A second condition would be that it should not be tied down to the strict rules of legal evidence; for in an inquiry whether the verdict in the first inquiry ought to stand no rational means of information should be excluded. It should, therefore, be at liberty to receive evidence not strictly legal. It should have power either to order a fresh trial, to annul the sentence, or to vary it, subject to such rules as might be laid, down for their guidance. It may, perhaps, be objected that there would be a strong disposition to resort to such a tribunal in every criminal case, especially where the punishment of death is impending; but it is common in in civil cases, where a large sum of money is at stake, to move for a new trial, yet the courts very rarely allow this, and the defeat of attempts not founded on satisfactory grounds would prevent any undue number of appeals. If, however, there is any difficulty on that head, I see no reason why the matter should not first be brought before the Home Secretary, who might pass on to this tribunal only such cases as he thought worthy of investigation. If the Government should think that what I have brought before your Lordships is worthy of consideration, but are not themselves inclined to take action on the subject, they may probably be willing to refer it to a Royal Commission, who 1152 would be able in a very short time to draw up a plan which would be satisfactory to the public. The second branch of my Motion refers to the ground of interference with sentences, distinguishing the cases in which the supposed innocence of the prisoner or the severity of the sentence has been the ground of such interference. Now, independently of the cases in which the punishment of death has been commuted, it has, I believe, been the practice for many years of the Home Office to mitigate severe sentences. Now, no doubt there is nothing so unsatisfactory in the working of our criminal law as the apparent disparity in the sentences that are pronounced. There is often an impression among the public that sentences are in some cases far too heavy, and in others far too light; but their opinions are in many cases founded on imperfect information. The reports published in the newspapers, although extremely able and faithful, are mere skeletons of what has passed in the courts, and readers of the public prints may very well come to the conclusion that there has been undue severity, whereas if they had heard the whole of the evidence they would have been perfectly satisfied. Still, no doubt, there is some amount of dissatisfaction with sentences, and particularly with their inequality. That disparity will always appear to exist so long as unlimited discretion is committed to the Judge who presides at the trial. It is obvious that such a discretion must exist, and I would not desire to limit it; for it is obvious there may be circumstances of aggravation or extenuation, many of which may call for a light or heavy sentence, and it is only the tribunals before which these cases are tried that can form a just opinion upon them. In every criminal case, however, two things have to be considered—first, the heinousness or enormity of the crime itself, and secondly, the particular circumstances under which the prisoner has committed it. Now, the first—the heinousness or enormity of the crime as deciding the punishment, one would think, should be determined by the law. Take the case of forgery, burglary, or rape. One person would hold forgery to be the worst crime that could be committed in a highly civilized and commercial community; another would hold that burglary was a much greater crime; 1153 and a third might hold that rape was the worst offence of all. Now he ventured to say that if you were to assemble fifteen men in a room, and take their opinions on these separate classes of crime, you would not find them agree; yet this is the question which the fifteen Judges have to determine. In passing every sentence a Judge has to settle what is the enormity of burglary, forgery, or rape, before he investigates how far the standard of punishment should be exceeded or diminished in that particular case. If a Judge regards forgery as a crime of the deepest dye, he will invariably visit it with a very heavy sentence; but a Judge on the neighbouring circuit may see in it only a form of robbery or cheating, and every case of the kind will be leniently dealt with. This inequality of sentences is due to the absence of any standard; for if there were a standard laid down, still leaving the Judges the utmost liberty of increasing or diminishing it, it would be felt that in nine cases out of ten the Judges would not disturb it; for the circumstances of cases really differ very little. I venture to say that such a standard would be gladly adopted by the Judges in the large majority of cases, and we should thus obtain something like uniformity of sentences; whereas, under the present system, we may be said to secure want of uniformity, every Judge being left to form his own opinion on the heinousness of the crime. When I first had the honour of a seat on the Common Law Bench I was struck with the desirability of such a standard:—which might be obtained either by Act of Parliament, by an Order in Council, or even by agreement among the Judges themselves. There would be no reason why it should not be altered from time to time, as the prevalence of a particular crime or other circumstances might render advisable. I shall be glad to modify my Motion if there is any difficulty as to the Return. I hope the Government will consider the propriety of appointing a Commission, by which a scheme may be worked out, which would save us from the jealousy that now subsists, and from the unsatisfactory state of our system as regards the confidence of the public. I use the word jealousy, because, if the Home Secretary should have occasion to interfere in the case of a sentence passed on some man of more 1154 note than usual, motives of a disingenuous and improper kind would in all probability be imputed to him.
Moved that an humble Address be presented to Her Majesty for, Return of the criminal sentences which have been wholly remitted or reduced or varied by the Crown under the advice of the Secretary of State for the Home Department during the last three years, distinguishing the cases in which the ground of interference was the supposed innocence of the parties, the severity of the sentence, or other causes.—(The Lord Penzance.)
THE EARL OF MORLEYThe noble and learned Lord (Lord Penzance) has entered upon a very large subject. When I saw the noble and learned Lord's Notice on the Paper, I had no idea that he would travel beyond the Return for which he has moved, and, therefore, I am not prepared to follow the noble and learned Lord through his statement, and I must confine my observations to that Return. I am afraid it will be impossible to grant that Return; and when I have stated the reasons for not granting it, I trust the noble and learned Lord will withdraw his Motion. In the first place, it is contrary to all practice that the Home Secretary should be called upon to give a general Return setting forth his reasons for the exercise of the Royal Prerogative of mercy. The Home Secretary does not constitute a court of appeal for the revision of sentences; he simply exercises the Royal Prerogative in cases where he thinks it fitting for him to do so. It would be establishing a precedent of a very dangerous and undesirable character if he were publicly to give the reasons for exercising the Royal Prerogative in all cases. In some individual cases which have been brought before the House of Commons, the Home Secretary has given his reasons; but to grant a general Return would be contrary to practice, and establish a dangerous precedent. The Return for which the noble and learned Lord has asked, extends over three years. In the early part of those three years the noble Lords opposite were in Office, and I venture to think it would be extremely difficult for the present Home Secretary to state the reasons which influenced his predecessors in exercising the Royal Prerogative. At the same time, I would point out to the noble and learned Lord, that the production of this Return would occasion much labour and expense, and interfere 1155 considerably with, the ordinary business of the office, without communicating to the House any really valuable information. As to the larger subject on which the noble and learned Lord has entered, I am at this moment unwilling to deal with it. There can, I think, be no question that the present system is not wholly free from objection; but I doubt much whether it would be improved by transferring the pardoning power from the Secretary of State to such a Committee as the noble and learned Lord proposes. There may be some points on which the exercise of the prerogative of mercy is not altogether satisfactory; but, on the whole, I do not believe that the public are dissatisfied with the manner in which it is administered. As to issuing a Commission to consider the propriety of constituting a tribunal, to be composed partly of legal elements and partly of lay elements, to which the exercise of the Royal Prerogative of mercy should be delegated, I am afraid I cannot hold out much hope that such a Commission will be issued at present. The question is one of very great importance, but it is not of great urgency, and I think public opinion should be a little more formed upon the subject before we should be prepared to investigate these questions. One of the most important elements of the prerogative of mercy is the facility and rapidity with which it may be exercised; but I think there would be considerable difficulty in assembling the numerously composed tribunal of appeal suggested by the noble and learned Lord, and of the numerous cases which now come before the Secretary of State to them. For the reasons I have adduced I must, in conclusion, appeal to the noble and learned Lord to withdraw his Motion.
§ LORD PENZANCEsaid, the noble Earl had misunderstood him. He had not proposed to transfer to any tribunal the prerogative of mercy now exercised by the Home Secretary; but had suggested that, instead of eking out justice by a resort to mercy, a criminal court of appeal should be formed, to which persons who felt aggrieved by a maladministration of the law should have a right of appeal; and which should investigate the case as a question of justice, altogether independent of the prerogative of mercy. Such a tribunal need not consist of more than two or three members; and it would no doubt be 1156 necessary that its proceedings should be prompt. It was right that a sentence should be reviewed; but this would be best done by a tribunal constituted for the purpose. He was sure the Government would willingly have acceded to the Return if there had been no difficulties in the way, and he could understand that it might be more voluminous than the occasion might warrant. He would not, therefore, press his Motion. But he ventured to think public opinion was more matured than the noble Earl supposed, and the dissatisfaction with the present system greater than he seemed to imagine. He could only, however, await the time when the present or any subsequent Government might think it right to take steps in the matter.
§ THE DUKE OF RICHMONDI should not have taken part in this matter if I had not had an opportunity, while presiding for two years over the Royal Commission, to consider the advisability of abolishing capital punishment, of investigating the manner in which the prerogative of mercy is exercised, which subject naturally arose out of the evidence given by various witnesses who came before us. That Commission was composed of a great number of eminent persons, and we had the advantage of the evidence of several Judges of the land. I must confess that I cannot concur in the suggestion of the noble and learned Lord, that the power of the Home Secretary to exercise the prerogative of mercy should be altogether abolished, and vested in a court in lieu of the Home Secretary. [Lord PENZANCE: I did not say that.] The noble and learned Lord suggests that in lieu of the Home Secretary a court should be constituted, composed of several members, legal and others, who, in investigating cases, should be at liberty to put aside the rules of evidence. I am astonished to hear the noble and learned Lord, who has been himself a criminal Judge, propose that such a tribunal should set aside rules of evidence which had been most strictly abided by in the court below, where the case was tried and the person found guilty. The noble and learned Lord, I think, has lost sight of the difficulty that the tribunal he suggests would be a one-sided tribunal, because it would be for the benefit of the prisoner alone. A person who 1157 had failed to obtain a conviction might I fairly say that his case ought to be tried over again; and if that were allowed, it would lead to a great many difficulties. I think that, on the whole, the present system works well, and that it is satisfactory to the country. The gentlemen who hold the office of Home Secretary are gentlemen of the highest repute and of the highest character. They are public men; they can be called to account for their conduct in the other House of Parliament; and the great, force of public opinion would be against them if they did anything derogatory to their character. The documents for which the noble and learned Lord has moved would cast a slur on the way in which justice is administered in the country he was, therefore, glad to hear that the noble and learned Lord would not press his Motion.
§ LORD LYVEDENthought the noble and learned Lord had performed a useful task in calling attention to the revision, and particularly to the want of uniformity, of sentences. The latter was a very wide question, for it affected recorders, quarter sessions, and petty sessions, as well as the Judges, and it rendered punishment uncertain; for there was notoriously among the poorer classes a belief that particular Judges or tribunals were less severe than others, and that poaching offences were punished with more severity in some districts than in others. Some remedy ought to be applied to this, and he thought it would be very desirable if the Home Secretary would introduce an Act limiting in some mode the discretion at present exercised in the administration of criminal justice throughout the country.
THE LORD CHANCELLORThe subject which my noble and learned Friend (Lord Penzance) has brought before your Lordships' attention is one which has undoubtedly occasioned much anxiety and consideration on the part of all those who have had anything to do with the administration of the law; but, at the same time, I listened in vain, though I looked anxiously, for any distinct remedy; nor do I think that he has made out at present a state of things at all encouraging for the issue of a Commission of Inquiry. My noble and learned Friend spoke of the large discretion which is vested in the Secretary of State with reference to the preroga- 1158 tive of mercy, and he proposed to take, in the first instance, that which undoubtedly exercises the public mind greatly—the case of punishment of death. It is true, as my noble and learned Friend says, that an extraordinary amount of sympathy is felt for a criminal the moment he is condemned to death—though that feeling, I am happy to say, does not prevail among all classes. Numbers of people, who take a very decided view on the subject, are quite sure to urge upon the Secretary of State all that can occur to their minds towards a commutation of the sentence; and the Home Secretary has a very short time to decide whether the capital penalty shall or shall not be inflicted. But would the scheme my noble and learned Friend has suggested diminish that pressure? Those persons would resort to a tribunal which, I am inclined to think, would have a considerable amount of business come before it, and there would be much delay between the delivery and the execution of sentence. Now, all who have gone into the subject of punishment are agreed that to be effectual it should be speedy as well as certain, and nothing produces a greater effect on a criminal's mind than to find that, as sometimes happens, only a few days intervene between the commission of the crime and the trial, and only about a week between the latter and the execution. The terror caused by this speedy determination is one of the most effective means of impressing the criminal class. Now, this would be fatally interfered with if those desirous of interfering with a sentence had to apply to a tribunal for the purpose of re-hearing the case. My noble and learned Friend objects to the ex parts applications made to the Home Secretary; but it would be exactly the same with the tribunal he proposes—for probably persons would not go before it to aggravate the case of the prisoner by producing evidence which they might possess more serious than, that given at the original trial. If, however, they did so, it would not, I apprehend, give any great satisfaction if it were proved that the punishment ought to be greater than that which was originally imposed. My noble and learned Friend disclaims any intention of confusing the re-hearing of a case with the prerogative of mercy; but he has not pointed out any mode by which those two functions can be recon- 1159 ciled in the inquiry he suggests; and his proposal that the Commission should not consist entirely of lawyers, and should not be bound by the strict rules of evidence, gave me the impression that mercy was to intervene. Such a tribunal would diminish the speed of punishment; it would not increase its certainty, and I am sure it would not give satisfaction to the public. My noble and learned Friend referred—and there I am more disposed to concur with him—to the different temperament of those who are called upon to pronounce sentence on criminals. There are seventeen Judges, the chairmen of quarter sessions, recorders, and others. It would be preposterous, however, to award a strict sentence in every case, without the least regard to the particular circumstances; and if this tribunal is to revise sentences, of how many persons is it to consist, and how are you to secure unanimity? How are you to guage the feelings of those who are called upon to act? The legal portion of the tribunal might possibly lean in one direction, and the lay element in another, and it would be difficult to secure a unanimous opinion. The mode of proceeding before the Secretary of State is by no means perfect, and I should be thankful to see our way clearly to the probability of substituting something better, so as to justify the appointment of a Commission; but I see no such probability. It is true that the Home Secretary is changed from time to time, and that might be an objection; but there is always a permanent Under Secretary; and although the present Under Secretary is comparatively new to his office, he is, I have no doubt, a gentleman well qualified to exercise the duties entrusted to him. The late Under Secretary, Mr. Waddington, was a gentleman remarkable for his care and accuracy, who conducted all these inquiries with scrupulous ability and accuracy, and I have no doubt his successor will be equally conscientious. Moreover, when these cases come before the Home Secretary, that eminent functionary always, in the first instance, refers to the Judge who tried them to ascertain whether he is satisfied with the verdict. In particular cases other matters are inquired into, but those cases are extremely few. In some of them the delicate and difficult question of the state of the cri- 1160 minal's mind is raised, in which experience proves there is obviously a large margin for difference of opinion; but this would not be improved by requiring all evidence to be on oath, for on matters of opinion there will always be great variety of opinion; and the oath is no security, because a man giving his opinion may honestly swear that he believes so and so. Certificates, therefore, are just as valuable, whether they are on oath or not; and the only other evidence is that occasionally given by friends and relatives as to the convict's state of mind at former periods—matters which are not of such difficult solution as may at first sight appear. It is, therefore, a question whether the present system, under which we have the one mind of one responsible officer to bear on such questions, is not, after all, a more satisfactory system than the one proposed, under which there would be many minds and, probably, a great variety of opinion to be encountered. At present the functionary, to whom this duty is confided, having ample assistance, is able to consider this subject without delay. He is, moreover, a responsible Minister of the Crown, and is therefore accountable to Parliament for the manner in which he discharges his duties; whereas the tribunal suggested by my noble and learned Friend would consist of men of different minds, who would, probably, come to different conclusions, who would not be accountable to Parliament, and whose responsibility, being divided, would not be so strong. Seeing, therefore, that my noble and learned Friend, whose experience in criminal law is much larger than mine, has not been successful in suggesting a satisfactory expedient, and that the time has not yet arrived when the evils are so great as to demand an immediate inquiry, I am not disposed to think that the appointment of a Commission would lead to a satisfactory solution of what is, doubtless, a difficult and intricate question.
§ LORD PENZANCEsaid, he had been under the impression that, in exercising the prerogative of mercy, the Secretary of State was not granting a favour; but was dispensing in that form more perfect justice, by taking into consideration circumstances unknown or insufficiently weighed at the trial. With regard to the tribunal, he did not tie himself down to any particular constitution; but he 1161 desired that it should act in the name not of mercy but of justice. If extenuating circumstances existed, they should be considered as justice. In his opinion, an inquiry before an open court and in the light of day was a far better tribunal for a re-investigation of the facts connected with a particular case than a purely private inquiry by a Minister of the Crown, of the nature and details of which the public were kept in utter ignorance. The evidence adduced before the court he had suggested need not be strictly legal evidence, but the court would have power to ascertain the truth from all sources of information. The legal rules of evidence were laid down for the purpose of excluding improper prejudice from juries, but in the courts of chancery, and sometimes even in courts of law, those rules were not strictly observed. He would not, how-over, press his Motion.
§ Motion (by Leave of the House) withdrawn.