HC Deb 30 March 1821 vol 4 cc1512-4
Mr. Martin,

of Galway, in moving the second reading of this bill, observed, that there could be no doubt of the broad principle, that a prisoner charged with any offence ought to have the same means of defence that the prosecutor had of attack. In treason, the prisoner was allowed counsel; but not in the crime next in degree, capital felony. It had been said, that the court was always counsel for the prisoner. On the contrary, he contended, not only that they were not, so, but that they ought not, and could not be so. Again, adverting to the trial of Bellingham, he maintained, that the failure of Bellingham to obtain a postponement of his trial, on an affidavit stating the necessary absence of a material witness, was attributable to his not having counsel to enforce his claim. The hon. member proceeded to state the circumstances of the apprehension of an Irishman for supposed burglary, and his trial at Croydon, in support of his argument as to the justice of affording prisoners charged with capital offences counsel in all cases, and concluded by moving the second reading of the bill.

The Solicitor General

felt great reluctance in opposing the motion; because he had no doubt that the hon. member intended to confer a benefit on those unhappy persons who were charged with capital offences. From his experience in courts of justice, he took upon himself to declare, that the proposition would operate greatly to the prejudice of those persons. As to the circumstances of Bellingham's trial, they would in no way have been altered, even had the bill proposed by the hon. member, been in existence; for when an application, for delay, founded on an affidavit, was made in a capital case, counsel were always heard for the prisoner to whatever extent it might be desired. The only effect of the observation, therefore was, to cast a slur on as humane a judge as ever sat on the bench. In nine cases out of ten, the case was made out very strongly against the party accused. In such cases, if the prisoner had a counsel, he must either be silent, which would be construed to the prisoner's disadvantage, or in his defence he must resort to sophistry and every kind of fallacy to serve his purpose. This would require remark from the judge in summing up, and might possibly have the effect of altering the situation and character of the judge, and of making him counsel against the prisoner, instead of counsel for him. The counsel for the prosecution also, who at present contented himself with a temperate and dry statement of facts, would, if counsel were assigned to the prisoner, feel himself obliged to change the character of his address to the jury, and operate in some degree upon their passions instead of their reason. He contended, that the law, even with respect to high treason, did not allow to prisoner's counsel the privilege of addressing the jury until the statute of William 3rd. But, however salutary that statute as affecting the case of high treason, he con tended, that extending that privilege to all other prisoners would only be a waste of the public time, and would lead to no result favourable to the administration of public justice.

Sir James Mackintosh

said, he was al-way ready to admit that the general proceedings of courts of justice in this country were irreproachable; but he was surprised that his learned friend should have argued this question as if the proposed bill were one which had been tried, and had operated unfavourably for a prisoner. His learned friend well knew that, before the statute of William, allowing counsel in cases of treason, the law refused counsel to prisoners in all criminal cases. The statute of William was the first good fruit which grew out of the Revolution. Its benefit was universally felt as a safeguard for the subject; and he was at a loss to conceive why the same advantage which accrued to a prisoner in cases of treason, out of this privilege, would not also be felt in the same manner in other cases. It was remarkable that all the arguments used by his learned friend against the motion, had been used at the time of the passing of the statute of William. He rather thought that if this measure were tried, it would be found serviceable. There was a broad distinction between what a judge would do in behalf of a prisoner, and what his counsel might do. That which it would be the duty of a counsel to do for his client, would be criminal if done on the part of a judge. His learned friend had overlooked the invariable practice of Scotland, where any prisoner might have the advantage of counsel. He did not seek this privilege to enable criminals to have a better chance of escaping; for their escape he thought the greatest slur upon the practice of the law. His object was, not that these should escape, but that the innocent should have a better protection. The utmost that could result from agreeing to this measure would be, that a greater number of guilty persons would be convicted, which must be regarded as a good and not as an evil.

Sir J. Yorke

said, that an objection occurred to him, upon the score of time. If two counsel were allowed on each side upon every case, it might not be unfair to suppose that counsellor Bore'em on the one and counsellor Bother'em on the other, would each speak for two hours, and this taking the number of cases, at 3,000, would amount to 12,000 hours annually.

The Attorney General

said, that if it could be shown that the innocent had suffered, or that justice had not been ad ministered because prisoners were not al lowed counsel, he would be ready to sup port the bill; but all persons conversant with the subject, were aware, that every assistance was afforded to prisoners upon their defence. If the bill were to be en tertained upon theoretical grounds, he knew not where the principle could stop. Trial by jury might be abolished upon theory; for certainly nothing at the first view appeared so repugnant to reason as to say, that twelve men should be unanimous in. every case of justice. It was found, however, that the system worked well in practice.

The motion, that the bill be read a second time, was negatived.