CRIMINAL JUSTICE BILL. (Hansard, 17 April 1826)

Mr. Secretary Peel
observed, that this bill, which purported to have no less an object than the improvement of the Criminal Justice of England, seemed to him to be of such great importance, that he conceived the best method he could adopt in its consideration would be, to have it read clause by clause to the House. In that way he could, he thought, introduce most satisfactorily the very few amendments and alterations which it was necessary to propose. The first, and by far the most important, related to the powers of magistrates in the taking of bail—powers which had remained without any alteration since the time of Edward 1st. His object was, in this bill, to procure such a legislative provision, as would make it distinctly understood—what the powers of magistrates actually were with regard to bail, upon which there had been, for a long period, very considerable obscurity; and next, to extend the class of offences for which bail could be received, by giving some precise and definite description of the kind of offenders from whom bail could be taken, pointing out clearly who might be admitted to bail, and who must be committed to safe custody. He proposed, that where any person should be taken on a charge of felony, or suspicion of felony, before any justice of the peace, and the charge should be supported by positive evidence of the fact, or by 285 such evidence as, if not explained or contradicted, should, in the opinion of the justice, raise a strong presumption of the guilt of the person charged, such person should not be admitted to bail by any justice or justices of the peace, either in or out of sessions; but should be committed to prison by the justice before whom he or she should be so charged, in the manner hereinafter mentioned. But (and this was one of the amendments he proposed to introduce at present), if there was only one justice present, and the person should be charged before him with felony, or the suspicion of felony, and the charge was not sufficient to justify an immediate commitment; but yet, if there was, in the opinion of the justice, such a strong presumption of guilt as would render it necessary to have further inquiry made, before he could either safely commit or discharge—the justice should not, in that case, take bail, but order the prisoner to be detained until he could be taken before two justices; and if the further evidence produced against the person suspected was not such in the opinion of two justices, as to raise a strong presumption of his guilt, or such evidence should be adduced on behalf of the person charged, as should, in their opinion, weaken the presumption of his or her guilt, but there should, notwithstanding, appear to them to be sufficient ground for judicial inquiry into his or her guilt, in such case, the person charged should and might be, admitted to bail by such two justices in the manner mentioned. This provision, with this amendment, would have the important effect of lessening the number of those who were sent, sometimes most unnecessarily, as it turned out afterwards, but yet, in strict compliance with the law, to an imprisonment injurious at once to health and to morals; for, looking at the number of commitments for felonies—and the number ultimately prosecuted and found guilty, there appeared a disparity which excited a strong suspicion of the policy, whatever might be said of the justice, of the course at present adopted. Now, if the committee looked to the effect of imprisoning for a long period in a common gaol an innocent man on a charge of felony, and considered that, in almost all cases, such a person came out a much worse man, in point of moral character, than he was when he went in; they would not, he was sure, object to the grant of a power to magistrates, which would pre- 286 vent, in many cases, the chance of an innocent man being exposed to such a contamination. He inserted the word "credible," and that was a most important alteration, because at present, where a man was charged with felony, the magistrate, even though he might not think it a case strongly presumptive of guilt, had not the power to admit to bail, but must commit or discharge the prisoner. In cases where two magistrates were present at the first hearing of the charge—and that, he thought, would generally happen in all cities and large towns—they would have the power of admitting to bail, if the circumstances should appear to them to be such as he had before mentioned. But where only one magistrate was at the first hearing, he would be bound to remand, if he had the doubts to which he had before alluded, until two magistrates could hear the case.

§ Mr. Scarlett
said, that, in point of fact, magistrates already exercised the power about to be granted them by this act.

§ Mr. Denman
thought that great difficulties would arise from placing too precise and exact limits to the conduct of magistrates. Too technical a laying down of their duties would have the effect of embarrassing them. He considered that there was a strong objection to the use of the word "credible," which was generally considered as synonymous with "competent;" and that, unless a person was convicted of some disqualifying crime, he must be considered competent. He should like the clause better, if magistrates were authorized, when the evidence appeared insufficient, to discharge the prisoner rather than remand him. He saw great reason for pausing before the clause proposed was agreed to. At all events, he hoped that nothing which passed that night would be considered as final, but that every clause would be printed and placed in the hands of members.

Mr. Secretary Peel
said, that the clause already proposed was the most material one. The others were not of such consequence at present. If the evidence against the prisoner was positive, the magistrate was bound to commit; and therefore it was that he added the word "credible" to "positive." "Credible" was not to be taken in its technical sense. It meant to guard against the evidence of persons of suspected or doubtful character, as, for instance, common prostitutes.

The Attorney-general
agreed with his right hon. friend, that the word "credible" was to be taken in its popular acceptation. Indeed, it was used as contra-distinguished from "incompetent." It meant persons who were credible from their character and conduct.
The clause was agreed to. On the clause, "That before any person shall be bailed, or committed, the justices shall take down the examinations, and bind all persons to appear as witnesses on the trial; and that all examinations, informations, and recognizances be returned to the Court,"

§ Mr. Horace Twiss
said, that great inconvenience arose from not having the deposition of witnesses returned before the trial. In the absence of these documents, it was impossible to determine whether the evidence of the witnesses, as given before the magistrates, agreed with that given on the trial of the prisoner. He should therefore suggest, that in no case the trial should be proceeded on, unless the written examinations taken before the magistrates were in Court.

Mr. Secretary Peel
was strongly of opinion that, if the suggestion of the hon. and learned gentleman were adopted, it might tend, in many instances, to defeat the ends of justice. Measures, for instance, might be taken by the friends of a prisoner to intercept the messenger who was conveying the depositions to the assizes, and thus prevent the trial from coming on, Besides, it would have the effect of taking the discretion of postponing the trial quite out of the hands of the judge.

§ Mr. Horace Twiss
replied, that, unless the judge had seen the depositions, he could know nothing of the merits of the particular case, and therefore could use no discretion.

Mr. Secretary Peel
said, that perhaps it was not necessary that the judge should be in possession of the merits. He thought it would be wrong to legislate on the subject.

The Attorney General
observed, that if the suggestion proposed by his learned friend was adopted, a prisoner, through the neglect of the magistrates' clerk, might have his trial put off to the ensuing assizes. He admitted that it would be desirable to have the depositions in court during the trial; but if it was necessary to have them returned before the assizes, it might so happen that no officer would be in attendance to receive them.

Mr. Secretary Peel,
on the clause being moved, that all informations and examinations on which any person should be imprisoned or admitted to bail, should be committed to writing, and returned into court at its opening, said that, at present, magistrates, upon charges of misdemeanour, were apt not to reduce the examinations to writing; but although it might give some little more trouble, he conceived it right that this should be done in all cases.
This clause was agreed to; as was also the clauses for giving similar powers to coroners, in this respect, as to justices, and imposing a fine on both of them in case of their failing to observe the above regulations. Upon the clause being moved, that all felonies, without benefit of clergy, should be ousted of that benefit under all circumstances consequent on the indictment,

§ Mr. Hume
said, that the right hon. gentleman, whilst he was improving the criminal law, would be conferring a great benefit if he were to do away with the distinction as to the benefit of clergy altogether. Indeed, the meaning of this term was far from being generally understood.

Mr. Secretary Peel
said, that he, for the most part, concurred in the opinion of the hon. gentleman; but the simple repeal of all these distinctions now would be premature. He hoped at no distant period, so early, indeed, as in the next session, to bring forward bills for the consolidation of the whole of the criminal statutes [hear, hear!]. These he would propose to take in the following order:—first, the laws relating to the injury of persons: second, those relating to coining and forgery. When these had undergone revision and alteration, most of the criminal law would have been revised and condensed. As soon as they had made that progress, it would be right, perhaps, to make one uniform provision upon the subject: but at present, those offences that were clergyable, and those that were not, were so interwoven in the statutes, that it was inconvenient to separate them, or to come to any specific provision upon the subject. Besides, the simple repeal now, by abolishing the words "without benefit of clergy," would have the effect of making some offences capital that were not so by law.

§ Mr. Peel
next proposed the clause enacting, that "if any person indicted for 289 any felony for which the offender is entitled to the benefit of clergy, and he shall on arraignment confess the felony, or stand mute of malice, or shall be outlawed under such indictment, &c. in every such case the person shall be deemed and taken to be guilty of such felony, and the court shall award such judgment as if such person had been convicted by a verdict."

§ Lord J. Russell
was desirous that every person arraigned should have the benefit of a trial, whatever plea he might put forward, or under whatever circumstances a charge was preferred against him.

§ Mr. Scarlett
observed, that the judges had uniformly evinced the greatest unwillingness to admit a party to plead guilty. Even where a prisoner was obstinate in refusing to plead at all, the judge had a plea of "not guilty" entered for him, and the trial gone through.

§ Mr. Peel
said, he only proposed to enact what he already found in several statutes. The clause only proposed, in a compressed manner, to enact that which was already in force.

§ Mr. Scarlett
objected to the clause which subjected "accessaries before the fact" to the same punishment as principals, in all cases of felony. There were some cases in which an exception was made to the general provision. As a general rule, he admitted that accessaries were liable to the same punishment; but before they altered the law as relating to excepted cases, he thought the committee ought to have before them the statutes, by which, for certain offences, the accessary was visited with a less punishment, the principal with a greater. The effect of the present clause might be, to increase the number of capital punishments, in some cases where the principal was indictable for a capital felony, and the accessary only made liable to one that was not capital.

§ Mr. Peel
replied, that he had adhered to the principle on which the law proceeded in the punishment provided for offences. It was, that the accessary should be liable to the same punishment as the principal. Indeed, in some instances, the accessary, in his opinion, was more criminal; as in the case of persons instigating boys to steal in dwelling-houses, to commit robbery, or some other offence, with the expectation that, on account of their youth, they might escape the capital punishment due to the crime. There, in his opinion, the 290 accessary was far more criminal. The principle was such as he had stated, and would be found to pervade all the statutes relating to murder, burglary, stealing in dwelling-houses, forgery, and arson. And, as this was the general principle, he attributed the omission of observing this principle to negligent legislation in those cases where exceptions were made. He would ask, why accessaries in one class of aggravated offences should be subject to heavy punishment, and those of another class be exempted? Why, for instance, should a man, who was an accessary in piracy, be liable to the punishment of death, and the accessary in an unnatural offence not be liable? Wherever, therefore, he saw these exceptions to the general principle, he considered it owing to negligence in drawing up the statute.

§ Mr. Scarlett
was desirous of having the cases in which the accessary ought not to be punished equally with the principal brought distinctly under the consideration of the House. He therefore wished the right hon. gentleman to postpone the consideration of this clause until an opportunity should be given to draw up an enumeration of the cases in which the accessary before the fact and the principal ought to share the same punishment.

§ Mr. Peel
was anxious to have the clause passed now, in order that the printing of the bill might not be postponed. After it was printed it would be re-committed, and the learned gentleman would then have the opportunity of creating the discussion which he desired.

§ Mr. Denman
concurred in the opinion, of his learned friend, that before any alteration was adopted, the particular statutes in which these distinctions between the principal and accessary were made, should be laid before the committee, and the grounds of them examined.
The clause was agreed to. On the moving of the clause empowering offences committed within five-hundred yards of the boundary-line of two counties to be tried in either county,

§ Mr. Sykes
expressed a wish, that in all cases a prisoner should be tried either in the county where the offence was committed, or in that in which he was apprehended.

§ Mr. Peel
thought, that it would be much better to have the prisoner always tried in the county where the offence was committed, as it would enable both prosecutors and prisoners to conduct their 291 cases with the least possible expense. If the prisoner was to be tried in the county where he was apprehended, how would the hon. gentleman act, supposing the prisoner was apprehended on the boundary-line, or in a boat on a river dividing two counties? He certainly could not consent to the hon. gentleman's proposition.

§ Mr. Denman
asked, whether it would not be expedient, in order to give effect to this clause, to empower the magistrates to commit to the gaol of either county?

§ Mr. Scarlett
observed, that if there were any doubt as to the boundary of a county, there would be also some doubt as to the distance of five-hundred yards from that boundary. It appeared necessary to make the law more explicit upon this point.

§ Mr. Peel
observed, that this clause only re-enacted the present law. The clause contained the words "any felony may be inquired of in either county." These words, he conceived, met the case mentioned by the learned member for Nottingham. If they did not, he should be happy to insert a clause in the bill, which would give the magistrates the power which the learned member thought they ought to have.