COUNSEL TO PRISONERS. (Hansard, 28 March 1833)

§ Mr. Ewart
moved for leave to bring in a Bill to allow Criminals, in all cases, a full defence by Counsel.

Mr. Wished
to state what he conceived to be the present position of a prisoner under a charge of felony. It was not a real defence, nor a point of law alone that relieved a prisoner from a charge; but such was the mildness of the administration of the Criminal-law, that the slightest omission in the evidence—the smallest doubt—the most negative circumstance—the merest gap not filled up—was sufficient to absolve an accused party. In a Criminal Court the impression produced was, that every one concerned in it appeared to be engaged in a desire to procure an acquittal. It was 1200 not sufficient that guilt should be probable—and even morally certain—but the evidence was required to be of that overwhelming and decisive character, as to take away almost all possibility of innocence before a conviction could be obtained. What did the hon. Member propose to substitute for that? If the hon. Member should succeed in giving to a prisoner full defence by Counsel, he would drive him from the high vantage ground he now occupied; and bring him down into an arena of contention upon facts, forcing him to have a complete representative to whom, if he had any answer, that answer must be known, and from whom, therefore, it would be expected. When a prisoner had a real defence, it could require no speech by Counsel. Did the hon. Member not see that he was depriving accused persons of the most judicious defence that could generally be made, except by cross-examination—a total silence. If his system were adopted, the imprudence of those who were charged would induce them to commit themselves to a speech which as certainly would betray them. What would have been an acquittal, from some very slight doubt under the existing administration of justice, would be turned into a conviction by an ill-judged and indiscreet argument. As there was however reason to think that a prisoner was unfairly treated by the right which the prosecutor had of addressing the Jury, it would be better that such right should be taken away. In civil cases the slightest preponderance of proof decided the verdict. Suppose a civil cause between A and B, and that the evidence for A was as 1,000, the evidence for B as 999, there would be a verdict for A; but if this had been a felony, and B the prisoner, he would have been acquitted. Take a much stronger preponderance; say twenty to one, or 100 to one:—in both the same result would follow, because, if it were not so, an innocent man would be frequently found guilty. Suppose twenty-one cases, in each of which the proofs against the prisoner were as twenty to one, and suppose 101 cases in each of which they were as 100 to one, the obvious result would be, that if conviction followed in all, each of these classes of cases would include the conviction of one innocent man. It was precisely against such occurrences that the criminal law of this country was so wisely 1201 anxious to provide; and, therefore, along course of ages produced a very few unjust judgments, the cause of which judgments was solely attributable to the imperfection of human knowledge, and to those unfortunate combinations which could not fail to mislead the most honest mind, and against which human calculation could effect nothing. The hon. Member appeared to him not to have sufficiently considered the meaning of the verdict of "not guilty." Such a verdict was very far from importing that the Jury believed a prisoner to be innocent, indeed it was quite consistent with a strong belief of his guilt; it was, in truth, an incorrect expression—it meant no more than the Scotch verdict of "not proven," according to the standard of criminal evidence. If it were said, that according to his view the proposed measure should be adopted as the best means of discovering the truth, he would exhort hon. Members who adopted that opinion, to pause before they came to any such conclusion. The general laws and rules of evidence were the same in criminal as in civil cases; but the standard for a verdict was very different; and it was, in his opinion, that the proposition of the hon. Member would have a decided tendency to lower the standard of evidence in criminal cases; to assimilate it more and more to the standard which prevailed in civil proceedings; and to endanger most materially the security of innocence.

Mr. O'Connell
approved of the Bill, and said, that in the course of his long experience in criminal cases, he had seen many instances in which a conviction would not have been obtained if the accused were allowed Counsel for his defence. He had assisted at a trial in Ireland of three brothers, who were convicted and executed, though it turned out afterwards that they were completely innocent of the crime they were charged with. If he could have spoken in their behalf to the evidence adduced against them, he should have obtained unquestionably a verdict of acquittal. He could mention several other similar cases, and therefore he should not be justified if he did not support the present improvement in criminal law. He hoped that the hon. Member would withdraw his opposition to the Bill, and that it would meet with none from the majority of the House.

§ Sir Thomas Fremantle
was inclined to think that prisoners would not derive 1202 much benefit from the provisions of this-Bill, for if Counsel were allowed to address the Jury on their behalf, the prosecutor's Counsel would have a right to reply, and to press every point of evidence against them—a practice from which the Bar of England generally, if not universally, abstained at present.

§ The Solicitor General
did not rise to oppose the Motion for leave to bring in this Bill, but rather to support it. The theory was certainly in favour of it, and in cases where a foreigner was tried, or where a blind man, or a deaf and dumb man, was put on his defence against a criminal charge, gross injustice was done by not allowing their defence to be made by Counsel. He doubted, however, whether it was expedient in all cases to give the prisoner the right of making his defence by Counsel, and he was even inclined to think that it would be better to take away from the prosecutor the right of addressing the Juror by Counsel than to give such right indiscriminately in all cases to the prisoner. He conceived that it would be wiser that in all prosecutions where Counsel addressed the Jury for the prosecutor, Counsel should also have the right to address the Jury for the prisoner. He would therefore enact, that unless a speech was made by the prosecutor's Counsel, no speech should be made by the Counsel for the prisoner. If the alteration contemplated by this Bill were made, the present number of Judges would not be sufficient to get through the criminal business of the country. In a civil case, the Judge often told the Counsel that he was going too much at length into general circumstances; but in a criminal case, what a very delicate task it would be for a Judge, when a man was being tried for his life, to say to the prisoner's Counsel—"You have stated that point before, several times; and therefore I hope you will go to some other part of the case." These objections struck him at first view, as being applicable to the practice that would take place under this Bill; but still the arguments in favour of carrying it into execution were so strong in theory, that he certainly should be disposed to make the attempt. There was a degree of scandal attached to the administration of justice, if any party could be said not to have been fully heard. He very much questioned, however, whether, in point of practice, this defence on the part of the prisoner 1203 might not sometimes produce an improper acquittal. Every one knew the effect of eloquence on a Jury: Judges were frequently old and infirm—trials sometimes concluded late at night, when the attention of the Court was exhausted—and it might happen in criminal cases, as it did sometimes on civil trials, that the Judge might say, "Gentlemen, you have heard the Counsel on both sides, and I have no doubt you will come to a right conclusion." Instead of which, it might frequently happen that they would come to a wrong one. At the same time to increase the number of Judges would be a matter of little importance, if the alteration proposed in the law were an improvement, for the number of the judges might be easily doubled, and it was better that they should be doubled than permit innocence to suffer, or injustice to be practised.

An Hon. Member
said, that if Counsel were allowed to both prisoner and prosecutor, it would have no better result than giving rise to trials of professional skill. The prosecutor in most cases being the richer, would have the advantage, since it might naturally be supposed that he could obtain the best professional aid. The disadvantage would be consequently on the side of the prisoner, who generally was the poorer party. He entirely concurred with the suggestions of the hon. and learned Solicitor General, that it would be better in some cases to take away Counsel from the prosecutor, than allow him to retain Counsel in all, and also give Counsel to the prisoner.
Leave given.