COUNSEL FOR PRISONERS.

HC Deb 10 June 1835 vol 28 cc628-33

Mr. Ewart moved the second reading of the Counsel for Prisoners' Bill.

Mr. Goring

said, that the measure was the result of a mistaken humanity, and would neither benefit the prisoner nor the public. It was unnecessary inasmuch as the judge was the Prisoner's Counsel, and it would be mischievous, causing contentions among the counsel, and delaying the business of the Courts. He objected particularly to the clause which allowed an Attorney to plead as counsel. Considering the Bill to be quite unnecessary, he would move that it be read a second time that day six months.

Sir George Strickland

supported the Bill, and must say, that he thought that the speech of the late Attorney-General the hon. and learned Member for Huntingdon in favour of it, was quite convincing and unanswerable. The existing law was a remnant of feudal severity, and the alteration in it was resisted merely from the general fear of innovation.

Mr. Horace Twiss

said, that having for many years past taken an anxious interest on the subject, he trusted the House would allow him to state those reasons which he thought gave great weight to the propriety and necessity of the Measure. They had heard that evening, a specimen of most of the arguments, usually advanced as a defence of the existing system; in the first place, there was the old argument of the Judges being the Prisoner's Counsel, and that the Bill would deprive the prisoner of that existing advocacy: that presumed in the first place, that the Judge had the opportunity of hearing all the evidence, which were he the Counsel for the prisoner, he would have the means of knowing, and then that he would know accurately what points of that evidence bore upon the merits of his case. Now, if that were so, not only would there be no necessity for the speech of the Counsel for the prosecution, but, in civil cases, no necessity for Counsel on either side, as the evidence would come out passage by passage, and the Judge would have nothing to do but to decide on its application, and then, without any contest, there would be an end of the matter. But how was the Judge to know what was the point intended to be relied upon by either of the parties? He had no brief upon the matter, the only brief which he got was the deposition, which was in fact the brief of the prosecutor. But then it was said, that the Judge would hold the prosecutor's brief, as the Prisoner's Counsel, while the only brief he held was the depositions taken before the Magistrate which in many cases were ex-parte against the client. But if the Judge did his duty, his own mind was necessarily occupied during the trial with something different from the defence of his client. It must be recollected that during a criminal trial three processes were going on. The Counsel for the prosecution was endeavouring to make the evidence bear on the guilt of the prisoner; the Counsel for the prisoner was endeavouring to make the evidence bear on his innocence; but neither of those processes ought to be going on in the mind of the Judge, who ought to be considering in what way the law bore upon the facts, and what was the balance of the conflicting statements, and he could not ful- fil his duty to the public and to the prisoner at the same time, if he were considered the Prisoner's Counsel. To shew the absurdity of supposing that the Judge was the Prisoner's Counsel, it was merely necessary to advert to the frequent phrase that "the Judge summed up for a conviction." What! sum up against his own client? He was the counsel for the prisoner, and he went to the jury, and with a strong and impressive speech, tried to induce them to find his own client guilty; that was a great absurdity surely, and rested with the existing system. The only judicial operation which that House performed, was, upon Election Committees, and at one time there were nominees admitted who were at once Judges and parties in the case, but there was so much hardship, and injury connected with that system, that it was done away on that account. It was sometimes said, that if the Bill passed, there would be great heat—that the Counsel would be extremely ambitious to shew themselves off; he admitted that some feeling of that kind might exist, but then it was the case at present, and the Counsel, having no legitimate opportunity for their observations, were continually endeavouring to get in, not one speech, but two or three speeches, under the shadow of a question, and the Counsel for the prosecution, generally insisting, often very strictly, upon the observance of the rule, what with the struggles on the one side to make a speech, and on the other side, to prevent it, that very heat was generated which was apprehended from granting permission to deliver a regular speech, and in civil cases there was none of that heat produced which was so much dreaded, though each party had often much to gain or lose: was it then much more likely to occur in criminal cases? In general, it should be observed that, so far from there being a strong feeling on the part of the prosecutor against the prisoner, the contrary was the fact, as the prosecutor was almost invariably the party who recommended the prisoner to mercy. But then "time is a question." He (Mr. Twiss) did not think it likely that Counsel would expose themselves by long speeches, to waste the time of the Court, particularly as it was well known he would infallibly expose himself to the ridicule of the Bar, and the dislike of the Judge, but if they were so inclined, would the House of Commons say that the Judge had time to hear one party, and not to hear the other? Then it was said, that the proposed Measure would be injurious to the prisoner. He thought that the prisoner himself would be best able to decide that by himself, or with the advice of his Attorney. At present, the law allowed Counsel in the cases of treason, and misdemeanor; and would any man, even the most strenuous opponents of the Measure, say that the law in those cases should be repealed? Upon what principle then could they justify the argument, that though in civil cases, in treason, and in misdemeanors, the prisoner had Counsel, felony was the only case to be excepted. Did that require any line of demarcation? Not at all, for the felony and misdemeanor, were so closely connected that in many cases it was almost impossible to distinguish between them. Would the House then take away that first right of man—the being heard, either by his own mouth, or by his Counsel more competent than himself? Look at the circumstances in which the man might be placed. In many cases, conclusions were to be derived from the recollection of facts or from some contingent circumstances. It was true, that when the facts were undisputed nothing was to be contested; but the prisoner had the right of arguing the point of law before his Judge, and in many cases it was extremely difficult to put facts on their proper footing without considerable skill in explanation and considerable knowledge. Take the case of homicide in an arrest; a great deal would then turn upon the legality of the arrest, if it were legal, the deed would be murder; if illegal it would be reduced to manslaughter; and that was wholly matter of fact. Again the case of malice prepense in which there was always great difficulty, and the Judge had to decide the law upon it. In almost all cases of circumstantial evidence, it was matter of fact; nothing was more difficult than to decide upon the motives of a deed; and all that was matter requiring the assistance of Counsel, and Counsel of great skill, to elucidate it. It was often part of the case of the Counsel for the prosecution to prove a fact by a great number of allegations which carried credibility of proof with them; a man was tried, with many other persons, for a murder, committed in a general assault; the difficulty for the Judge was to keep the proofs separate, and when the man was unaided, how was he to preserve all the parallel lines in the proofs, to distinguish how much belonged to one and to another, in order to ascertain whether there might not be some inconsistency in respect to some of them; as it often happened that the defence for one was wholly inconsistent with the defence for another of the parties? And when the Question was, "Did A or B strike the fatal blow?" How was the Judge to take the case of each, although the Counsel for each might do it? Let the House consider the case of a deaf person incapable of readily catching the evidence: of a foreigner who could not duly appreciate it; of an invalid, whose strength of constitution was not sufficient to bear up against it; of the aged, with their faculties almost expiring; or, of the young whose faculties were hardly arrived at maturity; or of a woman whose feelings rendered it impossible that she could attend to the evidence. None of those cases, separately, were numerous; but the aggregate formed a large proportion of convicted criminals: and yet, to all of them the argument applied. He would imagine the case of a full-grown man, in the possession of all his faculties, still he might be a man of education, or a common labourer, and the conviction or acquittal might depend on skill, or a want of skill, and not on guilt or innocency. A man might be able to take notes of the evidence, or he might be obliged to rely upon his memory. In what sort of state must his recollection be, or his mind, to argue with calmness upon his own case even if he were a man of ordinary judgment? Even in that House where, theoretically, at least, all men were equal, was it not well known when hon. Members got up to speak, what awe and difficulty oppressed them which all their education and sense of equality did not overcome. How much more, then, in the case of a man in humble life standing against a prosecutor with the aid of Counsel, with a crowded audience about him, perhaps, by the nature of the crime, prejudiced against him, and the man alone in a part of the court whose very situation—the dock—puts him in a place of degradation; with all that against him, let the House say if he were placed in a situation of equality with the Counsel for the prosecution, what chance he had of attending to the merits of the case? If he, by some accident, were enabled so to do, then there arose another class of ob- jections and prejudices not less violent and dangerous: the feeling was, that he must be an experienced rogue. If under the circumstances described, he was able to make out a good case, he must be an old hand, an ancient practitioner, and thus he must either bring out no case at all, or bring it out to his disadvantage. In a great number of cases, too, the fact alleged came, perhaps, by surprise upon the man, and how was he then to make his address, and consider all the questions before him? It was said that the inequality was only in appearance. He hoped for the honour of his country it was so, but it was essential to law and justice that the Judge should not only be just, but be thought just. The damage of the few was the insecurity of the many. It would not do to pride themselves upon their intellectual advances, because every other machinery was rapidly improving; if that machinery, the machinery of justice, upon which the life and liberty of men depended was left imperfect. He therefore should give his cordial vote for the Bill. Amendment withdrawn.

Bill read a second time.