HC Deb 04 June 1834 vol 24 cc158-69
Mr. Ewart

rose to move the second reading of the Prisoners' Counsel Bill. As the subject had, on former occasions, been repeatedly before the public, it would not be necessary for him to trespass on its attention at any length. It was a fact which he wished to press on the attention of the House, that England stood alone, with one solitary exception in the civilized world, in her refusal to allow prisoners the assistance of Counsel. In Scotland, France, Italy, Germany, and the United States of America, prisoners were all defended by counsel; and none of those inconveniences which it was often alleged would be the necessary consequences of adopting the practice in this country were found to result from it. The strongest objection, however, and that which was most frequently urged against allowing prisoners the benefit of Counsel, was the quantity of time which the practice would necessarily consume in our Criminal Courts. The late Sir Samuel Romilly had completely answered that objection, when he said, that too much time could never be consumed, where the object was to discover truth, and administer justice. The next objection to the measure was, that it was unnecessary, because the Judge on the bench was the prisoner's advocate. If this were so—if the Judge was indeed the advocate of the prisoner—then he lost his character of Judge in that of advocate. But if impartial justice were administered by the Judge between the prosecutor and the prisoner, then the latter must go undefended; so that those who urged this objection placed themselves between the horns of a dilemma. The argument which had been urged against allowing prisoners the assistance of Counsel, on the ground that counsel would injure their cause, was absurd; for if the prisoner had any apprehension of that, he need not allow Counsel to defend him. The Bill was not compulsory in its provisions; it did not force counsel upon a prisoner, but gave him the power of engaging professional assistance if he pleased. A very ingenious addition had been made to the objections raised, by a proposition to take away counsel from both sides, and leave the case to be decided by the merits of the evidence. But he thought that the purposes of justice would not be answered by a bare exposition of the evidence, either for the defence or the accusation, and that the connecting statements of counsel would be required to show the evidence in its proper light. In America, the Counsel for the prosecution had a right of reply. To this he objected, because it gave the prosecutor a great advantage over the prisoner. In France, the custom was, to let the Counsel for the prisoner have the last word. This was an arrangement to which he was also opposed, as he did not think the ends of justice were likely to be promoted by it. The system of criminal jurisprudence in Scotland was free from both the objections to which he had alluded. Their system of defending prisoners was worthy of the consideration of the House. It succeeded completely in securing the prisoner a fair trial, but nothing more. The evidence was for and against; the prisoner's case was first of all gone into, and then the Court was addressed by Counsel both for the Crown and the prisoner. In those cases where the evidence was so strong against the prisoner that nothing could stand against it, neither the Counsel for the Crown nor the prisoner took up the time of the Court by any speech. The ends of justice, in all criminal cases in Scotland were, by means of this system, completely answered. This system had been pursued since the year 1587, and he had a very high authority, that of Mr. Allison, to support him in his favourable opinion of it. He thought, that it was something like a reflection on this country that she should be so tardy to acknowledge a principle which almost every country had long since admitted. The rule in Justinian was "non debet actori dicere quod non reo permittitur." Was it not a strong argument ad verecundiam against our country, that the practice of the United States had been changed in this respect, contrary to the old English law, and contrary to the spirit of defence which they had inherited from their ancestors? His reasons for bringing this Bill forward were, that it would give defence to those who were unprotected, that it would subserve the ends of truth and justice, and remove from the Judge his character as an advocate; thus enabling him to sway the balance with an impartial hand, and give freedom, certainty, and vigour to the arm of justice.

Mr. Hill

rose to second the Motion. Anxious as he was to uphold the system of our jurisprudence, and the laws as administered under our happy Constitution, as the best altogether in the civilized world, he was, nevertheless, bound to confess, that he had seen more than two or three cases of verdicts of guilty in felony, in which the verdicts were not borne out by the evidence; and this expressly because the prisoner had not had the benefit of a speech from his Counsel—in other words, the innocent might be deprived of protection by the present practice of our Criminal-laws. It was to be observed, that if we were right in this anomaly, we were right in direct opposition to the practice of all civilized Europe, and even that of our colonies on the other side of the Atlantic. The origin of our present practice was to be found in the same system which adjudicated men to death on paper depositions, without confronting the prisoner with the witnesses against him, and inflicted torture on the prisoner, in order to extract from his own mouth evidence against him. Under such an iniquitous system was it, that Lord Essex was sacrificed, and that great and illustrious man, Sir Walter Raleigh, was brow-beaten, insulted by a tyrannical Attorney-General, and finally suffered on the block! It was said, that the present system worked well, and though faulty in Principle, it was excellent in practice. He felt that, from the natural infirmity of humanity, Judges would be often found to take a false view of evidence unintentionally, or neglect some very important point of evidence which must make in favour of the prisoner. And this was an occurrence which never would have taken place, had the prisoner the benefit of Counsel to point out to the Bench and Jury the real nature of the evidence. The judicial murder, for so he must call it, of Eliza Fenning, never could have taken place in 1815, had she had Counsel to insist upon the circumstance, that she had herself taken the poison which was administered to her master's family, and had suffered severely from its operation. The hon. and learned Member detailed three other cases of criminal convictions, which he was certain never could have taken place, had the prisoners been allowed to be defended by Counsel. It was highly absurd, that the course of our criminal proceedings denied a man arraigned for felony the advantage of Counsel, but gave him two to speak for him, and conduct his defence, when the prisoner was charged with the very highest felony—namely, high treason!

Sir George Strickland

was confident, that many more Sessions could not pass, before the present anomalous state of the law with regard to criminal trials must be corrected. He had often heard, with most painful feelings, that part of criminal proceedings in which prisoners were denied the right of reply by their Counsel, and had always determined, if ever it was in his power, to give his support to that alteration of the law now proposed. Even in Italy, where no other semblance of a fair trial was given, the prisoner had the right to have his Counsel to plead for him, before Courts as ill constituted, he would admit, as any in the most despotic countries of Europe.

Mr. Poulter

was not disposed to place much reliance on the conviction entertained by Counsel engaged in the defence of prisoners, that their clients, though convicted, were innocent. The real question before the House, in his opinion, was, had not a prisoner, upon the whole, a fairer trial, and a fairer hope of justice, under our form of criminal trial, than either in Italy, France, Germany, or even the United States of America? The administration of our Criminal Law was, in his opinion, already too mild, and afforded too great a chance of escape to prisoners. To draw an inference in favour of the alteration in our laws, from the dreadful prosecution and cruel ill-treatment experienced by that illustrious man, Sir Walter Raleigh, on his trial, by that severe and insolent Attorney General, Sir Edward Coke, was altogether unfair. The spirit of the age, and of our times, was altogether changed and amazingly improved since then, and now such brow-beating, insulting conduct, would not be tolerated in any legal officer of the Crown by a criminal Judge. The most serious consequence of altering our laws as was proposed by this Bill, he feared the House was scarcely able to appreciate justly—namely, that it would tend to withdraw attention from the evidence itself, and lower the present standard of evidence in criminal cases. This would be a consequence of a change in our law as to evidence, which would be most seriously felt by prisoners, even more seriously than they felt the inconvenience of being denied Counsel. If the hon. Member (Mr. Ewart) would consent to withdraw the first clause of his Bill, he would have no objection to let the Bill go to a Committee. As he understood, however, that this would not be conceded, he should conclude by moving, "that the Bill be read a second time this day six months."

Mr. Sergeant Spankie

said, that it was generally admitted, on all hands, that justice was administered in a satisfactory and impartial manner in this country; and he could not see, that there was any practical ground for the change now proposed to be introduced, inasmuch as there was no practical abuse to be remedied. He thought it would be found, that, if Counsel were allowed to address the Jury in defence of prisoners on charges of felony, it would be the junior Counsel, who would generally be employed in their cause, who, by their injudicious manner of proceeding, might often do more harm than good to their clients. They would naturally endeavour to put the points of their case in the strongest light, and the Counsel for the prosecution would be compelled to combat them by all the eloquence and ingenuity he could com- mind. The Courts would thus be turned into an arena for ingenious display, which would be anything but advantageous to the prisoner. As it was at present, the Counsel for the prosecution generally contented himself with a calm and dispassionate statement of the facts of the case, and it was the Judge's duty to watch over the interest of the prisoner. Whilst, therefore, he could see no practical advantage to the prisoner that could result from the change now proposed, the inconvenience on the other hand would be very considerable. The Assizes would be extended to three or four times their present duration, and the expense to the country proportionably increased. From these considerations, he should support the amendment.

Lord Althorp

said, he had given this subject much consideration, and he thought some change was desirable. It appeared to him, that the arguments which had been urged against allowing Counsel to prisoners in cases of felony would equally apply against permitting Counsel to defendants in cases of misdemeanour. In the course of his experience and observation, which had been confined to the more trifling class of felonies, he had felt, that it was exceedingly painful to hear Counsel address the Jury against a prisoner, who was denied the privilege of being heard by Counsel in reply. What they had to consider was, not whether the change proposed would prove to the advantage of the prisoner, but whether it was calculated to lead to a fuller and more perfect development of the truth, and a more certain administration of justice. They should consider whether the truth was likely to be, in all instances, fairly elicited by a system under which cases could be put strongly on the one side, without allowing an answer to be given by equal talents from the opposite side. He would particularly instance the cases depending on circumstantial evidence, in which Counsel for the prosecution had, in their address to the Jury, to make out the necessary chain of evidence; and it appeared to him, that the privilege of reply on behalf of the prisoner ought to be allowed, in order that an opportunity might be afforded of showing in what respect improper inferences might have been drawn. Entertaining these views, he hoped the House would allow the Bill to go into a Committee, that they might examine if in detail, and see whether the objections urged against it, some of them being of weight, might not be removed.

Mr. O'Connell

said, that the noble Lord had condensed in his speech so much good sense and practical wisdom on this subject, that it might appear to the House unnecessary for him to offer any further observations in support of the same views. He might, however, be permitted to make one or two remarks. The hon. and learned Sergeant who had preceded him had opposed the Bill upon an economical consideration of the county rates, and other matters totally foreign to the spirit of the question. He had also opposed the allowing of Counsel to prisoners on charges of felony, on account of the inexperience and indiscretions of young Counsel. He would say, that he had known many old Counsel who were just as indiscreet as their juniors. The fact was, that the present mode of proceeding in our Criminal Courts was anything but the fair and straightforward course which it should be. The Criminal Code itself was too cruel and bloody; that was a great evil, which it was endeavoured to counteract by throwing all sorts of impediments in its way, to prevent the discovery of the truth. Criminals and witnesses were continually cautioned against saying anything that could possibly implicate themselves; and time even given them, to reflect upon what they should say, lest they should unwittingly let an unwelcome truth escape. The hon. and learned Sergeant had said, that the prosecuting Counsel generally confined himself to a calm and circumstantial account of the facts of the case, and that the Judge was to watch over the interests of the prisoner. That was a very plausible statement, indeed; but was it borne out by experience? He, in the course of his practice, had seen great mischief and great injustice result from an exaggerated statement made by the Counsel for the prosecution, but he had seen much more harm and hardship result to the unfortunate prisoner from an assumed moderation on the part of his accuser. In Ireland, the Crown prosecutor, not uncommonly, came down and addressed violent harangues to the Jury, calculated to rouse their fears and their prejudices against the prisoners whom they were called upon to try. "Gentlemen of the Jury," it would be said, "the Crown has sent down this Special Commission for your own protection. Will you not protect yourselves?" which meant, as he understood it, "Will you be pleased to hang the prisoners at my request?" No weight ought to be attached to the objection, that allowing Counsel to prisoners would lead to young Counsel being employed, who would needlessly sacrifice the time of the Court to their desire to exercise and display their powers. Was it not from the Bar that they took their Judges, on the efficiency of whom depended matters of the greatest importance—even the life and death of individuals? He had, some time since, been engaged in a trial at Cork to defend three men, brothers, who were charged with being implicated in the murder of Franks. The principal witness was a female. She had been before called on to identify the individuals who had been present, mid who were active, at the murder. The persons arrested were subjected to her recognition, amongst them were the three prisoners; she had known them before, but she passed them over, and picked out others, who were tried, convicted, and executed. Again the three men, in company with others, were brought before her, and again she failed to identify them. It was then thought proper to bring the three men into a room by themselves, in order that the attention of the woman might not be diverted; but, on being ushered into their presence, she declared that she had not seen them at the murder. The men were then discharged. In about six months after, she changed her mind, and deposed to facts against these men. They were arrested at their houses, subsequently brought to trial, and she identified them, swearing to them most positively. These facts he drew from her at the trial; many of them she admitted with considerable reluctance; but having exposed them to the Court, he left shortly before the trial was concluded, his firm conviction being, that the men must be acquitted. He had scarcely reached his apartment before he heard a shriek—such a shriek as was often heard in an assize town in Ireland when men were capitally convicted. The Judge had so summed up to the Jury that they found the prisoners guilty. He went to his window, and saw the three men in a square of soldiers. The mother of the prisoners, a widow, was endeavouring to force her way through the soldiers to her sons. She continued her struggles, and the soldiers presented their bayonets; but the officers at last desired that she might be allowed to approach them. She rushed in and embraced her eldest son, who was not twenty-one years of age; she then embraced her second son, and next her third and youngest, from whose peck she fell upon the pavement, bathed in blood. He turned away from his window, and saw no more. The men were murdered. The next year the same female, who had before given evidence in three cases, tried her hand at implicating some more individuals. Two other men were brought to trial on her evidence. The Judge on this occasion was Baron Pennefather, who, in a ten minutes address to the Jury, put the case to them in a manner that led to the prisoners' acquittal. Now, could there be a stronger illustration of the propriety of granting Counsel to prisoners than was afforded in the proceedings he had just described to the House? If he had had the opportunity of addressing to the Jury, in the case or the three prisoners, some such observations as were addressed to the Jury by Baron Pennefather in the case of the two prisoners, the former as well as the latter would, in all human probability, have been acquitted. He had seen justice perverted; he had seen human lives sacrificed; he had seen the violence of Counsel against prisoners, and the not less malignant mischief of a speech of great caution—of great affected moderation, professed in such terms as "Heaven forbid I should force a point against a prisoner—Gentlemen of the Jury, I would not for the world exaggerate a point;" and the very next moment they would hear—"But justice must be done—the peace of the country demands it;" in short, from persons who had assumed extraordinary moderation of tone and manner, he had heard these most cutting, cruel, and deadly insinuations. He felt certain, that the Bill would be highly beneficial, and he gave it his cordial support.

Mr. Goulburn

opposed the Bill. From any thing he had heard or seen, he had no reason to believe, that in any case quoted, the verdict would have been different from what it was, had the prisoners been allowed to have Counsel. If the Counsel for the prosecution was allowed to reply, there would be an absence of the calmness at present prevailing in criminal trials, and passion and prejudice would appear there. He believed, too, that it would tend to make Judges partizans. He conceived, therefore, that the present system was better calculated to elicit truth, than the one proposed by the Bill. It was on that account, too, better calculated to ensure an impartial administration of justice, and he therefore should vote against the Bill.

Mr. Robert Grant

said, that it was im- possible to defend the present anomalous practice, nor had any Gentleman who had spoken on the opposite side attempted to defend it. It had been overlooked by the hon. and learned Sergeant, who referred to the confusion and inconveniences which would ensue from allowing prisoners, charged with criminal offences, Counsel, that acts of the Legislature had of late made many offences, which were before felonies, misdemeanours, in which the defendants were allowed Counsel. Now, whatever inconveniences and evils could be supposed to exist in allowing Counsel to prisoners charged with felonies ought to be shown to exist in those cases where felonies had been made misdemeanours and Counsel were allowed to the accused. It was said, that the advantages of allowing prisoners Counsel were exaggerated, and it might be so; but whenever a benefit was denied, its advantages were exaggerated, and the way to stop the exaggeration, was to take away its materials. In the case of treason, again, they had Counsel, without the evils of which the learned Sergeant had drawn so strong a picture. All these anomalies he had never seen even plausibly excused. They had come down to us by accident; and were they, therefore, to be preserved? If there was any practice in the law for which there was something to be said upon both sides, the reasons for and against were examined, and the right had fair chance of being successful; but let any point arise in favour of which nothing could be said, and they were called upon to consider it as founded upon some indescribable, mysterious wisdom, and therefore to be preserved. They acted in this respect somewhat in the fashion of certain nations of the East, who properly estimated a man of little or no talent, but directly they met an idiot worshipped him as inspired by the Deity. At one time Counsel were not allowed to prisoners even to cross-examine witnesses, and that happened, which happened now, when the poverty of a prisoner prevented him employing Counsel, viz. all the barristers present lent him what assistance they could, by suggesting questions to the Judge, and raising points for his benefit; but what weight was there in the arguments of those who, when it was proposed to allow prisoners the assistance of Counsel, urged Parliament not to disturb the excellent state of the law, which gave the prisoner all the bar for Counsel, instead of one only? The Legislature thought no weight was due to such arguments, and he trusted that the Legislature would now think, that no weight was due to the arguments which opposed a prisoner's Counsel speaking for him, because, from his having no help of that kind, the Judge was now called his Counsel. As to the excitement of passion and contention of Counsel for victory, which had been dwelt upon, it was from the contention of Counsel that truth was elicited for the judgment of the Jury and Judge in civil causes, and he thought that truth would equally result from the contention in criminal cases.

Mr. Pollock

was obliged, from a sense of duty, to vote for the second reading of the Bill. Under the present practice, many who were guilty escaped, and many who were innocent were convicted. Now, if Counsel were allowed to speak on both sides instead of one only, more guilty persons would be convicted; and what was more important, more innocent persons would escape, because they would have better means of defending themselves. He recollected, when he was young at the Bar, being present at a trial in the country, in which the prisoner was charged with an offence which, of all others, required that the accused should have the assistance of Counsel: it was a trial for rape. The man was found guilty and sentenced to death; but so convinced was he of the man's innocence, that he intended the next day to have started for London, in order humbly to lay his opinion before the Secretary of State; but he was prevented by the other Judge of Assize respiting the condemned, whose punishment was first commuted to transportation, then to two years' imprisonment, and ultimately he was set at large. There was another case, at the trial of which he was also present, although not concerned in it as Counsel, more than in the first case, in which the accused was found guilty of murder, and was executed in forty-eight hours. He was satisfied, that that man was innocent, and that his innocence would have been established had he had the means of making a defence. The opinion was not his alone; for he had, not many days back, mentioned the circumstance to one who was at the time Counsel on the Northern Circuit, and who was now one of the Judges of the land; and that Judge said, that he had a perfect recollection of the circumstance, and that it was the opinion of the whole Bar, that the man was wrongfully convicted and executed. He recollected, on another occasion, four men were tried be- fore Mr. Baron Wood at Durham, for a capital offence. The Judge summed up as regarded two of them, for an acquittal; but the Jury misunderstanding the Judge, found them guilty. He was obliged to pronounce sentence of death upon them, but immediately respited them; and the witnesses who had given evidence against them, were afterwards convicted of perjury. The Jury found the other two also guilty; but one of them declared, that he alone was guilty, and that his companion was innocent. In all these cases he was satisfied, that had Counsel been allowed to address the Jury for the prisoners, they would have been acquitted. He agreed, however, that no reply should be allowed to the Counsel for the prosecution, for it would introduce feelings fatal to the calm investigation of truth. He thought it would be even better to allow the law to remain as it was, than to permit the prosecutor's Counsel to reply. He could state that, in consequence of the prosecutor's Counsel being allowed to reply in some cases of misdemeanours—as conspiracy—four defendants out of five were unjustly convicted. When certain returns for which he had moved were laid upon the Table, the House would see what an enormous amount of injustice had been perpetrated in cases of conspiracy by allowing Counsel for the prosecution to reply. There was a very great difference between allowing Counsel for a plaintiff in a civil case to reply, and allowing a prosecutor's Counsel to reply. The plaintiff had an interest at stake; and if the defendant called witnesses, the plaintiff must be allowed to reply upon this evidence; but the King had no interest in making out the guilt of his subjects; and therefore he said, give the accused the last word. A great legal character had said, at the close of a long professional life, that he had got many verdicts to which he was not entitled, and had not many to which he was entitled; but that, upon the whole, the balance of justice was even. Now, that was precisely the argument now used. It was true, that there were innocent persons convicted of crimes they had never committed; but then, look at how favourable the practice was to prisoners, and how many escaped. That was not exactly the balance of justice of which he approved. He was for having the guilty convicted; and, above all, for having the innocent acquitted.

Mr. Poulter withdrew his Amendment, and the Bill was read a second time.