HC Deb 16 April 1833 vol 17 cc146-56
Sir Eardley Wilmot

rose, to move for leave to bring in a Bill to alter and amend so much of the 7th and 8th of George 4th, c. 28, as related to proceedings in indictments against offenders previously convicted of felony; also to alter and amend so much of the 7th and 8th of George 4th, c. 29, as related to proceedings by indictment against persons under seventeen years of age charged with simple larcenies. By the 7th and 8th of George 4th, it was enacted, that when a prisoner was indicted a second time for felony, upon proof of the former conviction, the Court might order an increase of punishment—namely, transportation for fourteen years, or for life. When the clerk of arraigns read the indictment to the Jury, in which there were two counts, the one stating the former conviction, and the other the charge to be tried, the Jury acquired a previous knowledge of the accused being an old offender; and such knowledge prejudicing him in their minds, he might be convicted, not so much for the offence for which he was then taking his trial, as for the offence for which he had already suffered punishment. Now, it was a principle of law, that no man should be tried a second time for the same offence; and the jury being sworn "to give a true verdict, according to the evidence," it followed, that the previous knowledge of the Jury was injurious to the prisoner, and militated against his having a fair trial for the offence on which he was then arraigned. He proposed that the count, stating the previous conviction of the prisoner, should not be read to the Jury till after their verdict; when, if it were a verdict of "guilty," proof might be given of the previous conviction; such proof never having been intended to affect the verdict of the Jury, but only the sentence of the Court after conviction. The second object of the Bill however, was of much importance; and he had no doubt would receive the attentive consideration of the House. In his judgment, some change of the law, as it related to juvenile offenders, had become absolutely necessary. The number of such cases had of late years, greatly increased. It appeared from the Returns on the Table of the House, that a large proportion of the convictions were of persons under twenty-one years of age. These juvenile offenders were first taken before a Magistrate, and then committed to prison to await their trials. That mode of dealing with them was attended with great expense to the public; but the worse consequence was, that, by remaining so long in a prison, as they frequently did, between committal and trial, these youthful offenders were exposed to every sort of contamination from the society of some of their fellow-prisoners; and their morals often became so utterly depraved, from this cause, as to render their future improvement, and their subsequent return to good conduct, and their duties to society, almost a hopeless matter. They came out worse than they went in; and thus the great end of punishment—the prevention of crime—was, in their cases, signally defeated. He would not enter into any details, but would merely allude to one instance, in order to show the effect of the early imprisonment of children for trifling offences. In the county which he had the honour to represent, considerably more than half the criminal offenders were under twenty-one years of age; and, during the last seven years, 1,300 individuals had been tried, who were under the age of eighteen; and of these one half were under fifteen years of age. A great portion of them were kept in prison from six weeks to two months, to await their trials; so that, in fact, punishment was inflicted on them before conviction. The system of punishing boys who had done acts of mischief (for a great number of these delinquents had no idea of committing felony), by indiscriminate imprisonment in common gaols, instead of keeping them on bread and water, and in solitary confinement, for a limited period, or of otherwise punishing them in a summary and judicious manner, was highly objectionable. Boys being sent to gaol, for they hardly knew what, soon became corrupted and depraved; their sense of shame was destroyed; and they were converted into hardened offenders. It was unnecessary to state, that the only objects of punishment are the prevention of crime and the reformation of offenders; and if those objects were not accomplished, and if punishments, instead of doing good, increased the evils which they were intended to remedy, there could be no doubt that the system was radically wrong. Such was the case with respect to our treatment of juvenile offenders. It was the object of the Bill to remedy this defect. Instead of allowing boys of tender age to be taken before Magistrates—for petty larcenies—to be bailed, or in default of bail sent to gaol, and then tried and imprisoned on conviction, he would have them brought at once to the Petty Sessions, there to be tried by the Magistrates, and summarily punished or discharged, as the case might require. If committed to a house of correction, care ought to be taken of the classification and the religious and moral instruction of youthful offenders. He should have no objection to have a Jury to assist at the Petty Sessions, if it should be thought necessary. If this, however, should not be thought desirable, in order to prevent convictions for felony without the intervention of Juries, it would be proper that many of the crimes now classed as felonies should, when committed by youths, be treated as misdemeanors. This alteration in the law would remove the objection which existed to dealing with such offenders without the intervention of a Jury, and reconcile the mind to summary convictions before Magistrates. The hon. Baronet concluded by making the Motion above specified.

Mr. Lamb

did not intend to oppose the Motion. He thought the first object which the hon. Baronet had in view was already attained, because the second count in the indictment was seldom read to the Jury, and because Judges did not in the first instance tell the Jury to find whether a prisoner had been before convicted [Cries of "the Jury knew it"]. He agreed it was not right a Jury should be prejudiced by having that knowledge; and if the hon. Baronet could succeed in preventing the Jury from knowing that a prisoner had been before convicted, he should be glad. With regard to the second object which the hon. Baronet had in view, it was certainly very desirable that boys not hardened in crime should be spared the contamination of the associates they usually met with while waiting in gaol to take their trial; but he confessed that he saw great difficulty in the hon. Baronet so framing this Bill, as not to let young experienced thieves, bred up in crime from their cradles, escape. If that were suffered, as it was well known that many boys in London were very experienced thieves, they would escape punishment; and it was of urgent necessity that boys nursed up in the career of crime should not escape punishment under the pretext of their age. There was a great difficulty in fixing the age of what were called juvenile offenders. Should it be under ten, or fourteen, or sixteen? The Committee which had sat on this subject had found it surrounded with difficulties. If the Bill were brought in, it might certainly, under proper management, tend to check crime. He looked upon the object of the hon. Baronet as most desirable, though he doubted if it were easy of execution.

Sir Thomas Freemantle

supported the Motion. The present system was only fitted to entrap a Jury into a verdict of guilty. He had been a member of that honourable House when Mr. Davenport had introduced his Bill on the subject, and had then supported his propositions. As to the establishment of a separate jurisdiction for the juvenile offenders, he thought the great evil of it would be, that a lighter punishment being by law awarded to persons under a certain age, experienced thieves would, in place of committing depredations themselves, employ those young persons, to the great injury of public virtue. There was a great difference between juvenile offenders in large towns, such as London, and in the country districts; and he thought it would be advisable to give Magistrates the power of summary conviction with regard to boys who should be brought before them in the country. He was ready to admit, as he had already said, that the case was different in towns. The great object was to guard against the contamination of these young offenders in gaol; and he thought that might be effected.

Sir Oswald Mosley

supported the Motion. As Chairman of the Staffordshire Quarter Sessions, he knew that one half of the offenders who were brought before him were under the age of twenty-one. It was totally impossible, even under the best system of gaol discipline, to keep the juvenile prisoners apart from the more practised offender. At Stafford they had instituted a school for the purpose of instructing the young culprit, but the effects of the instruction were soon wiped out by the company they kept. It was sad to see the trifling offences for which children were exposed to punishment. He remembered the case of a boy who was committed to gaol for stealing three eggs, and he was kept two months in prison before he was tried, and then, for this petty offence, he was exposed to all the solemn proceedings of a public trial. He wished that a distinction were made by the law between large and small felons. He wished also that the hon. Baronet had proposed to draw a distinction between minor and greater offences, and to give the Magistrates power to try the minor offences in Petty Sessions. That would be of great use in preventing crime, and would save expense to the country. He would give, if it were necessary, the Magistrates in Petty Sessions the power to summon a Jury like the Coroners. With a Jury of that kind, the Petty Sessions would be as competent to try the minor offences as the Quarter Sessions. He would, however, give the criminal the option to be tried before the Magistrates alone, or before the Magistrates and a Jury.

Mr. Cobbett

said, that he would at present give no opposition to the bringing in of this Bill; but that, in every future stage of it, if it extended the power of the Magistrates, or went further to diminish the use of the Trial by Jury, he would divide the House upon it, even if he stood alone. The use of the Trial by Jury had been going on lessening and lessening by degrees during the last forty years; and a bare enumeration of the instances in which by law it had been dispensed with during that period would shock the two hon. Baronets who had spoken in support of this measure. If they should endow Magistrates with the power of trying felonies without the intervention of a Jury, who would then say that they should not hang also without a Jury? [No, no.] Gentlemen may say "No" to that proposition, but some years ago who amongst them would have believed that Magistrates would have got the power of inflicting punishment in so many instances as they now possessed it? Magistrates now inflicted forty times as much punishment as the Judges of the land; and let them bear in mind who those Magistrates were. He spoke with every respect of the two hon. Baronets who had addressed the House upon this subject, he did not take them into consideration when he spoke thus; but there were different Magistrates in the country from them. A great proportion of the magistracy of the country consisted of clergymen of the Church of England, who were looking for preferment; of officers of the army and navy, who were looking for promotion; and of officers upon half-pay, who would not wish to be scratched out of the half-pay list by doing anything displeasing to the Minister of the day. In fact, a great portion of the magistracy consisted of the most dependent men upon the face of the earth. The hon. Baronet should take that fact into his consideration when he proposed to give the Magistrates the power of summarily disposing of offenders without the intervention of the Trial by Jury. The independence of the Judges was the constant boast of Englishmen; that the King himself could not displace the judges was a remark repeatedly in the mouths of the people of this country. But just look to the Magistrates, and behold the contrast! The Magistrates were nominated at the pleasure of the Minister of the Crown, they held their situations at the pleasure of the Minister of the Crown, and many of them could have their bread taken from them by the Minister of the Crown. They were, in truth, as dependent a set of men, generally speaking, as breathed the breath of life, and yet it was to such men that these powers of summary conviction were proposed to be given. He should be ashamed to sit there as a Representative of the people of England without protesting against such a measure. He should have had no objection to the measure if the hon. Baronet proposed a mitigation of the punishment of young offenders, but then as the hon. Secretary opposite had truly observed, there was the difficulty of discriminating between offenders. It was well known that some boys of five years old were as quick, and as great adepts, as other boys at ten years of age, and that boys of ten years of age were often as accomplished, and indeed more accomplished thieves than other offenders who were ten years older. It was, in fact, impossible to provide for the varieties presented by human nature. He repeated that he would oppose the measure in all its future stages.

Mr. Hardy

supported the Motion. He complained of the attack which the hon. member for Oldham had made upon the general body of the magistracy of England. That hon. Member had spoken of officers of the army and navy and of clergymen of the Church of England who were Magistrates, as if they were ready to sacrifice the ends of justice to the basest and most interested purposes. It was too much to hear such an unjust attack made upon them in that House. He was acquainted with many clergymen of the Church of England, and with many officers of the army and navy who were Magistrates, and he would say this for them, that he never saw men who were more disposed to do their duty firmly and impartially, with as much regard for the interests of justice as the hon. Member himself could possibly evince, and without any of those base ideas of promotion or preferment from his Majesty's Ministers which that hon. Member had attributed to them.

Mr. Cobbett

said, that he did not pretend to say, that Clergymen of the Church of England, and officers of the army and navy were worse than other men, he had only contrasted their dependence with the independence of the Judges. In doing so he meant to cast no imputation upon them.

Mr. Charles Buller

in illustration of the trifling offences for which boys were committed to gaol in the country, mentioned an instance which occurred at the Assizes for Devonshire last summer. A boy was committed for stealing a mackerel, whose imprisonment and trial cost the county 40l., and yet when he was convicted the Judge sentenced him to only one day's imprisonment. He stated that he knew of another case, where two boys who had stolen a few potatoes on a Sunday out of the open window of a storehouse, and had roasted them at an adjoining lime-kiln, were taken up, and brought twenty miles to the county gaol. They were afterwards tried and convicted, and those boys, both before and after their conviction, were confined amongst a parcel of felons, some of whom were in prison for an offence that he would not name. Would not a jurisdiction on the part of Magistrates to try such petty offences with the assistance of a Jury, remedy such evils? He certainly should, with the hon. member for Oldham, object to the taking away the Trial by Jury in any case, and the Magistrates might be empowered to empanel a Jury for the trial of such trifling offences as he had alluded to. The retaining the Trial by Jury in such cases would gratify the feelings of the people, and would in every respect promote the ends of public justice.

Mr. Lloyd

said, that in no case of misdemeanor, much less in a case of felony, should a Magistrate have the power of summarily convicting without the intervention of a Jury. The honest and well-founded prejudices of the people of England would not endure a contrary practice. He would suggest the propriety of referring the subject to a Committee up stairs, who should examine the whole question of secondary punishments. The question was one which had attracted attention lately, not only in this country, but across the Atlantic.

Mr. O'Connell

said, he was sorry to take up the time of the House, but every alteration whatever in the law was, in his opinion, of the greatest importance. He could not, therefore, allow the subject to pass without protesting against the deprivation of the juvenile offenders of the benefit of Trial by Jury. He was friendly to the principle of inquiring into the previous character of prisoners. Nothing could be of more importance than to impress upon persons the idea that character constituted a species of castle. In his opinion, many of the proceedings on criminal trials were the most farcical that could easily be imagined. Nothing, for instance, could be more ridiculous than the scruples which were made about allowing a prisoner to convict himself. The prisoner, in his opinion, ought to be called upon to explain any circumstance which might appear by the evidence to be of an equivocal nature. Lord Mansfield deserved great credit for the good sense of his remarks upon the subject. He hoped he should live to see the time when every criminal should be interrogated as to the particulars of the transaction respecting which he was accused. He would not advocate the subjecting of a prisoner to any duress, to any imprisonment, to any torture, in order to extort a confession from him; nor would be desire that a prisoner should, as in a neighbouring country, be subjected to all the ingenious cross-questioning on the part of the Judge, which was usual in a case conducted by counsel; but nothing could be more preposterous than the caution frequently given from the Bench to a prisoner, not to criminate himself. Instead of using every method in order to reach the real facts of the case, it was not unusual, upon a prisoner pleading guilty, for the Judge to point out to him the favourable point in the evidence, and to advise the prisoner to withdraw his plea, and take the chances of a trial. He had known that caution given in the case of a very bad murder. The criminal took the Judge's advice, and was successful in obtaining a favourable verdict; but he died in prison. There was also too much delay before trial. The whole system of criminal trials required revision; and the basis of the reform should be to make them come on more rapidly, and to get rid of those foolish scruples, which operated as a protection to the guilty.

Mr. Ashford Sanford

only wished to defend the Magistrates from the attacks of the hon. member for Oldham. In the cases which had been referred to they were, under the existing state of the law, obliged to commit the offenders for trial.

Lord John Russell

was perfectly sensible of the evil which resulted from sending juvenile offenders to gaol, where they were brought into contact with the more experienced criminals; but he could not make up his mind to dispense with a Trial by Jury as a remedy for the evil. He had always considered the Trial by Jury as the most valuable protection of the subject, and he objected to abolish it in any case, lest that should be made a precedent for taking it away in others. He, therefore, would not give his support to the Bill in its future stages, unless that part of it which proposed to invest Magistrates with the power of summary conviction were expunged. At the same time he wished it to be understood that he did not participate in the sentiments of those who attributed to the Magistrates a harsh and an oppressive exercise of their authority; on the contrary, he thought the conduct of the Magistracy was generally lenient, and characterized by a leaning towards prisoners. It was notorious, for instance, that they carried to the utmost extent the erroneous practice of not interrogating prisoners or calling upon them to tell their own story. He remembered once, a prisoner who was on his trial for sheep-stealing, being asked whether he had any question to put to his master, who had given evidence against him, replied, "All I have to say is, that I am sorry for what I have done, and I hope my master will forgive me; and, if he does, I never will do anything of the kind again;" whereupon the Magistrates on the Bench stopped him, observing that he must not convict himself, and other witnesses were called to prove the fact which the prisoner had already admitted. He thought Magistrates ought to ask accused persons to account for their time at the period when the crimes were alleged to have been committed. With respect to the other measure, he was of opinion that the fact of a prisoner's previous conviction ought to go before a Jury. If a prisoner's character were good let him have the benefit of it; but, on the other hand, if it were bad, let it weigh against him.

Mr. Potter

said, he had heard of a frivolous case where a boy was placed at the bar for stealing sixteen pounds of dung, and he had no doubt but that if the Magistrate had possessed the power of summary conviction, the prisoner would have been sent to the treadmill.

Sir Eardley Wilmot

, in reply, stated that he would avail himself of the suggestions which had been thrown out in the course of the debate. His only object in introducing the measure was to do away with a notorious and extensive evil.

Leave given.

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