HC Deb 27 May 1823 vol 9 cc550-60

The House having again resolved itself into a committee to inquire into the conduct of the Sheriff of Dublin, sir Robert Heron in the chair.

The right hon. William Conyngham Plunkett, a member of the House; was examined in his place.

By Mr. Calcraft.—Is it the practice for the law officers of the Crown, in Ireland, to order magistrates to commit in any particular form?—I never Heard of such a practice, and I should suppose no such practice can exist.

In the case of Forbes, did the law officers of the Crown order major Sirr to commit capitally?—Certainly not; the law officers of the Crown gave their opinion to the magistrates that it would be right to commit capitally, but I am sure that in that case no order, or anything equivalent to an order, was given by them to the magistrates. It is a judicial act on the part of the magistrate; he must exercise his own discretion, and rest upon his own responsibility; I conceive it would be a great violation of duty in him to relinquish his own judgment to that of any other person; and I conceive it would be a very improper thing, on the part of any other person to give him a direction.

Are you to be understood, that the law officers of the Crown merely expressed their opinion upon the evidence?—Merely so.

Would you think a magistrate acted property in committing on the opinion of the law officers of the Crown, on evidence taken before them, without himself examining that evidence and having it regularly sworn and reduced into the form of informations before him?—Ishould think that he acted very irregularly and improperly in so doing.

Did major Sirr state any opinion contrary to that of the law officers of the Crown, or against the capital commitment?—I never heard that he did, unless at the bar here (if he did so then); I never had the slightest intimation that he at all differed in opinion from the law officers of the Crown.

By Col. Barry.—Wereseveral minutes of examinations, or informations, taken in the absence of the magistrates, before the law officers of the Crown?—There were several examinations taken in the absence of the magistrates; after the witnesses had been sworn, in several instances the magistrates were absent during the procedure of the examinations.

Have you any recollection of the magistrates having been desired to withdraw?—I do not recollect that being the case.

One of the magistrates has stated, that he swore the witness and then withdrew; was it the practice that the witness was introduced into the room with the law officers of the Crown and sworn by the magistrate; that the magistrate then withdrew; that then the witness was examined, and a memorandum made of his deposition, and that before those depositions were sent to the magistrate, the magistrate was called upon to commit?—That statement involves a great number of particulars; I do not know whether the right hon. member means to put that as a question.

Mr. Graves, in his evidence, states, "I was desired to swear a witness; I did swear the witness, and then withdrew, and the notes of the examinations were then taken: they did not take the shape of an information sworn before a magistrate, but Several days before the commission, and the bills being sent tip to the grand jury, they were sent down to us, and we were desired to bring the persons before us, and to swear them to them, they being put into the shape of informations, and to bind them over to appear on the trial, which we did;" then in another answer, he says, "when these notes of informations came before the magistrates to swear, we had of course the witness before, us; we interrogated him again; he swore to the informations, and, in many instances, in doing so, he altered the notes of examinations, as before taken; in several instances he altered them considerably. It never was proposed to us to swear those informations at all until subsequently to the committals, when we had the witnesses before us, and when we were directed to have the witnesses before us in the first instance." When the committals were made, were all the informations that were taken in the absence of the magistrates laid before the magistrates?—From the answer which has been read to me, as given by Mr. Graves, it should seem that they were not; but the answer given by Mr. Graves is the first intimation of that fact I have received, to the best of my recollection.

You were understood, in reply to a question before put, to have said, that there were no orders given to the magistrates; were the magistrates advised by the law officers of the Crown to commit the prisoners capitally?—According to my recollection, I expressed to major Sirr, who was the only magistrate with whom I had any communication upon the subject of the committals, my opinion, and that of the law officers of the Crown, that the committal should be for a conspiracy to murder. It is necessary I should explain a former answer, to which the right hon. member has alluded, referring to the circumstance of the depositions being taken from the witnesses after the magistrates had withdrawn; I think it necessary to mention that that happened in some instances, in others the magistrate was present; in many others the informations were regularly taken before the magistrate. In the instances in which the examination was pursued in the absence of a magistrate, that was an examination conducted, as I consider, for the purpose of giving information to the law officers of the Crown, in order to enable them to form their opinion as to the circumstances of the case, and the mode of prosecution, but certainly was not intended by them as the depositions upon which the magistrate was to act when he came to commit. I conceive that it was the duty of the magistrate, before he committed, to examine those depositions, to have them reduced to the regular form of informations, and to have a security taken from the parties who made them, to prosecute. In the case of the two committals for the capital charge, which were made by Mr. Gabbett, I believe that was done; in the ease of the committal made by major Sirr, I now learn that that was not done; but I conceive that the doing that was the business of major Sirr, and a matter in which I had no kind of concern.

What was the use of filling up the notes of informations afterwards, if that examination was only intended for the purpose of giving information to the law officers of the Crown?—I cannot say what was major Sirr's object in doing it, after he had made out the committal; it could be neither a justification for the committal, nor could it answer any good purpose, but that was done without any communication with me; I had no communication with major Sirr, but one in which I gave him my opinion as to the nature of the offence.

Were the magistrates desired to remain in the room during the examination of the witnesses, or did they withdraw?—I have no recollection of their being desired to withdraw, nor have I a recollection of their being desired to remain; I cannot tax my memory upon the subject.

Did major Sirr represent to you at that time, that he did not think the charge made out as for a capital offence?—Never; at that or at any time.

By Mr. Bright.—Are you aware that George Graham was at any time committed only for a misdemeanor?—I rather believe so; I think that appears by the committals which are on the table.

Are you aware, that George Graham, as appears by the committals, was afterwards committed for conspiring with divers other persons to kill and murder his excellency Richard marquis Wellesley?—I believe he was, by Mr. Gabbett.

Are you aware, that both those committals were by Mr. Gabbett?—I think so.

The first committal was on the 15th of Dec. 1822, and the second on the 23d Dec. 1822; had you had any communication with respect to the committal of George Graham, with Mr. Gabbett in that interval?—It may be so; but I have no distinct recollection on the subject.

Can you inform the committee, how it happened that that second committal was made?—My recollection is not so distinct as to enable me to state, but I think it appears from Mr. Gabbett's evidence, that the opinion of the law officers of the Crown was given, that those persons should be capitally committed.

Did you as one of the law officers of the Crown give that opinion?—I did as a law officer of the Crown, give that opinion as to those three persons; I do not recollect communicating it to Mr. Gabbett personally.

Do you recollect what passed with major Sirr upon the subject of those committals?—No, I. cannot distinctly trace it; I think major Sirr came into the secretary's room at the castle, the solicitor-general, Mr. Townsend, Mr. Goulburn, and myself, being present, on the Saturday evening, the committals were not made out until the Monday, I think; on the Saturday evening about five or six o'clock, he came, and that at that time the opinion was communicated to him; I cannot tax my me- mory, whether on the Monday following I saw major Sirr, or not, but I have a strong recollection that on the Saturday evening that opinion was communicated to him.

Did you see major Sirr more than onee in those proceedings?—If I were to speak in my own recollection I should say only once, but I have been talking to Mr. Goulburn, who says, I saw him twice in his presence; my recollection is only negative, and Mr. Goulburn's is positive, therefore I think his is right.

You were understood to say, that the opinion of the law officers of the Crown was communicated to major Sirr upon a particular day, from which an inference is drawn that a previous conversation had taken place, is that inference correct, or was the whole one transaction?—What I mean to say is, that on the Saturday evening the opinion was communicated to major Sirr, and I believe by me; I believe also by the solicitor-general, but what conversation passed I cannot say.

Had any consultation taken place between the law officers of the Crown, in respect of any opinion to be given to major Sirr?—Conversation took place between the law officers of the Crown upon the opinion to be given; but whether it was with reference to its being given to major Sirr, or to any other magistrate, I cannot particularly say. I believe major Sirr happened to be the person to whom it was communicated, because he resided in the castle, and was therefore on the spot.

Had major Sirr applied for the opinion of the law officers of the Crown upon the subject?—I understood that the magistrates had applied to government on the subject of the mode in which they were to act; I do not recollect major Sirr personally having applied.

Did the magistrates at the same time that they applied to government, lay before the government the informations they had received?—I am not competent to say; according to the best of my recollection, the informations that had been taken before the police magistrates, were communicated to the law officers of the Crown.

Were there any other informations in the possession of the law officers of the Crown, that were not in the possession of the magistrates?—None but those that have been already alluded to, if they can be said not to have been communicated.

Was the opinion given by the law officers of the Crown, given upon those informations which were in the possession of the magistrates as well as upon those informations of which you have spoken, and which probably were not in their possession?—The opinions of the law officers of the Crown were founded upon the whole of the evidence, as well as the informations taken before the magistrates, as the evidence laid before them in the way already stated, in the absence of the magistrates.

Did you inform the magistrates with whom you communicated, that you advised them upon more information than they themselves possessed?—I certainty did not communicate it to them in terms; but major Sirr was perfectly aware of those examinations; he himself was present at some of them; he had sworn the witnesses in others; and there was no holding back any part of the information we possessed; and I considered that major Sirr was entitled to have access to the whole of it, and would have access to the whole of it before he signed his committal; in compliance with my advice, as the whole of the evidence before; us was in the hands of the Crown solicitor, I considered that he would, acting with proper discretion, inform himself of the whole of the case, and have it regularly reduced to the shape of informations, as was done by Mr. Gabbett; for in the case in which Mr. Gabbett committed, the evidence on which he acted was reduced to the form of informations, and the parties were bound over to prosecute in the usual way.

Was the opinion of the law officers of the Crown as communicated to the magistrates, entirely an opinion upon law, or an opinion upon their discretion?—The opinion that was communicated to the magistrates, was on the point of law, that we thought the evidence in point of law would warrant a committal for a capital offence.

Are you aware that Forbes had been held to bail on the night of the riot?—I am not quite sure at this moment whether he was held to bail; he was apprehended on the night of the riot by Mr. Graves; I believe he was discharged on that night; I am not quite sure whether bail had been given.

Are you aware that he was committed for feloniously conspiring to kill and murder the marquis Wellesley, on the 23d Dec. 1822?—Yes; that was the final committal.

Were any instructions given to the magistrates; with respect to that committal?—No direction; no instruction further than the giving the opinion I have already stated.

Was that opinion founded upon the evidence that was given at the trial by Mr. Troy and Mr. Farley?—I do not think I ought to answer any question as to what were the particular informations on which I gave my opinion, I am in the judgment of the committee whether I ought to answer that or not, I have personally no objection.

Were there any evidences examined upon that subject, at the trial of Handwich Forbes and others: for the conspiracy?—Upon what subject.

With respect to Forbes?—Oh! yes; a great many witnesses were examined; a report of the trial was published.

Is that copy of the trial tolerably authentic?—Indeed I should think so.

Was Mr. Farley, the attorney, examined upon that occasion?—Yes.

Was Mr. Troy examined upon that occasion?—Yes.

Were there any other witnesses examined upon the occasion to the point of what frap- pened after the play?—I believe there were; but really I submit to the honourable member, whether it is of any use examining me to those points, which will appear upon the printed, report of the trial.

Will you permit the committee to assume, that this report is sufficiently accurate to reason upon at a future time?—I have no power to give such a permission; I have already said, I believe it to be a very fair report of the trial.

Were the prisoners tried on both indictments at the same time?—They were not indictments, they were informations; they were given in charge on both the informations at the same time; I should mention with respect to that, that the practice in this country and in Ireland is different; the custom in the courts in this, country, is to include in the same information offences, which we in Ireland include in distinct informations, the consequence is, that the practice in the two countries is different; here parties, I believe, are not permitted to be charged at the same time on separate, infgrmations, but that is because they are really distinct offences; but in Ireland, where they split into two informations, offences of one and the same nature which are in fact one, they do allow the parties to be charged with the two informations at one and the same time.

By Mr. Bennet.—Do not the magistrates, under the police, hold their offices at the pleasure of the Crown?—I believe some of them do, and some of them do not; some are appointed by the Crown, some by the city; I. believe major Sirr does not hold at the pleasure, of the Crown, but under the city.

Does Mr. Graves?—Mr. Graves I believe does, but major Sirr, the magistrate who committed Forbes, I believe does not.

Is Mr. Gabbett removable by the Crown?—Mr. Gabbett, I believe, is removable at the pleasure of the Crown.

Major Sirr's is a patent place is it?—No, I believe not. I believe under the police act, there are city magistrates and persons named by the Crown, and that those police magistrates, who are appointed by the city, cannot be removed by the Crown.

By Colonel Burry.—You have said that you believe all the informations were before Mr. Gabbett previous to his making out his committal?—I rather believe so.

Mr. Gabbett

was asked, "Had you been left to your own discretion would you have committed for the capital offence?" to which he replied, "It is impossible for me to answer directly that question otherwise than thus, that I certainly, if it had been left entirely to myself should have required the whole of the informations to be laid before me to exercise my judgment upon them?—It certainly would appear from that, that the whole had not been;—my impression was, that the whole had been—that impression was created partly by my haying looked at a brief, which by accident is here, and now in my possession, in which the dates of informations taken before Mr. Gabbett are stated, and by which, it appears that Mr. Gabbett had all the informations reduced to regular form before the day of committal, that answer would make it appear as if he had not. I have not seen Mr. Gabbett's evidence since he gave it.

Were the examinations which were taken by the law officers of the Crown in the absence of the magistrates, sworn before the same magistrates?—I cannot be certain of that; I should think they were sworn before more than one magistrate; I think different magistrates came in, from time to time, as they happened to be on the spot; the taking of the examinations continued for six or seven days; whatever magistrate happened to be on the spot when a witness was examined swore the witness.

Is it the practice of the Crown officers in Ireland, to have witnesses sworn before any magistrates who may accidentally be present, those magistrates not afterwards taking cognizance of the case?—I cannot say that it is; but in this case the whole of the matter was before the police magistrates, and no magistrate who was not a police magistrate swore any witness.

In the case of Mr. Gabbett, were those examinations which you state were reduced into regular informations, re-sworn?—I should rather think so; I can only speak as to conjecture and belief; for I had no share whatever in the reducing them into informations, and know nothing upon the subject.

In point of fact, did the magistrates reduce the examinations taken before the law officers of the Crown into the regular form of informations?—On my knowledge I can say nothing upon the subject; it was the business of the magistrates; it was their duty, with which I had no concern; they exposed themselves to the action of the party if they committed him without a regular information, and the party was entitled to be discharged by a judge, if he was committed without a regular information; I should take for granted that the magistrates, who are experienced persons, would do that which was right; what they did I have learned principally in the course of the present investigation.

By Sir J. Newport.—Have you ever had any application from any country magistrates for your opinion, as to the committals of parties or the amount of bail which they should take?—I have had applications at times from magistrates in the country, in cases where I had no acquaintance, with the transaction, but where they applied to me merely as attorney-general, and my uniform answer has been, that I did not feel it my duty to interfere, and I declined giving any advice.

Did you learn from those who made those applications, or the manner in which they were made, whether it had been the former practice to make applications of that nature?—I should rather decline answering that question; I think I ought not to answer it.

Did you give any opinion as to the amount in which those persons whose case is now under inquiry, should be bailed?—Certainly not.

Or the refusal of bail?—I gave an opinion which implied a refusal of any bail; if it was a capital charge, of course, there could be no bail taken, unless before a judge.

The question refers to the time subsequent to the abandonment of the capital charge; the capital charge was abandoned at the commission; after that was abandoned, did you give any opinion as to the amount of bail to be demanded from Forbes?—No, I did not; I have a distinct recollection that the bail given for Forbes was on his own offer; he stated that he would give bail to the amount of 1,000l. which I certainly should never have thought of requiring, nor I never mentioned the sum; it was taken by the judge.

Did you consider, from the manner in which those applications which, have been referred to were made to you from the country, with respect to advising on the amount of bail to be taken, or on the nature of the committal to be made by the magistrates, that they had been, in the habit of making similar applications, before?—There is one instance only to which I could give any answer, and it really is not material to the present inquiry. A magistrate in the country had apprehended a person for an offence which in its nature was not bail-able, and he wrote to me to know whether I would give him authority to let out the party without bail. I certainly declined giving any opinion upon the subject, stating that it was not a duty that belonged to me.

It appears that some of these parties were first committed for a minor offence, and were afterwards committed for the capital offence?—Two of them.

Was there any information received in the interim between the two committals, on which the capital committal was founded?—I consider that there must have been; the capital committal did not take place until the 23rd, I think, of December; the examinations had been closed on the 21st of December; and I think material information had been received in the course of that last day's examination, which went to affect not only Forbes, but the two other persons who were capitally committed.

By Colonel Barry—Are you certain that you are correct as to the magistrates not being removable at the pleasure of the Crown?—I perceive the answer I gave to a former question has been in error; the magistrates named by the city are, I am informed; removable at the pleasure of the Crown.

Were any of the prisoners against whom bills of indictment were preferred, and ignored by the grand jury afterwards, held to bail to answer an information to be filed by the attorney general?—They were held to bail by the court for that purpose.

By Mr. T. Ellis—Do you feel that the attorney-general of Ireland has a right to call on any person to enter into bail, to answer an information to be preferred at a future period?—The short answer to that is, that it was not my act, but the act of the court and on the offer of the party.

Did any other of the parties, except Forbes, make that offer?—I believe they all did.

In point of fact, were any of the defendants kept in prison for two days after the ignoring of the bills, in consequence of not being able to get bail?—I do not know that fact.

Do you feel, as attorney-general, that you had a right to call on the defendants to find bail to answer to an information which was not then filed?—That is a question of law which it is not necessary to answer, as it was the act of the court, and on their own offer.

Do you know whether any of those parties who were committed on the capital charge, made any application to a judge in order to obtain their release?—I never heard that they did; I believe it would have been competent to any of them to make such an application; and if there was no information, or an insufficient information, they must have been discharged.

Was it at your suggestion, or that of any of the law officers of the Crown, that those persons were held to bail by the court?—The parties came in, not waiting for the end of the commission, and they applied to be forthwith discharged. I got up for the purpose of saying, that they were not then entitled to be discharged without giving bail; after I made that observation, they made an application to be discharged on giving bail; and it was quite unnecessary to enter into any argument upon the amount; the bail was fixed between them raid the court: that (it should be observed) was an application before the termination of the commission; had it been at the termination of the commission, that would have altered the case.

The examination of Mr. Plunkett being concluded,

Colonel Barry

said, that being aware of the inconvenience that would result from the prolongation of the inquiry, perceiving too the dislike of the House to go on with it, and feeling that the case of the high sheriff was so strong that it needed no further evidence to support it, was willing to decline calling any more witnesses. He was convinced that the result of the inquiry was to clear the high sheriff from any charge of improper conduct.

Mr. Denman

said, that as he knew it was the opinion of some honourable members that it would be necessary to submit certain resolutions founded on the evidence which had been given at the bar, it was of importance it should be understood, that the further prosecution of the inquiry had been abandoned, not because the House was unwilling to proceed with it, but because the right hon. member for Cavanshire, in the exercise of his discretion, with regard to the interests committed to his care, thought it unnecessary that it should be continued. He hoped it would be recollected, that the House had made no compromise with the right hon. member.

Mr. Calcraft

then moved, that the chairman do lay before the House the minutes of evidence. The minutes were accordingly presented, ordered to lie on the table and to be printed, and the witnesses discharged from attendance.

Mr. Secretary Peel

said, he did not know whether he was regular or no, hut he could not refrain from taking that opportunity of expressing, what he believed to be also the universal feeling of the House, his sense of the impartiality and ability with which the hon. baronet (sir R. Heron) had filled the chair, during the inquiry which had just concluded [Hear, hear!].