HC Deb 17 June 1835 vol 28 cc865-73

Mr. Ewart moved that the Prisoners' Counsel Bill be now committed.

The Attorney-General

was anxious, before the Speaker left the Chair, to make a few observations in justification of himself, against a censure which had been cast upon him out of doors, in consequence of his not having expressed his sentiments with regard to the principle and provisions of this Bill on its second reading. He did not then attend the House, for this plain reason—that he had, in a former Session of Parliament, expressed his entire approbation of the principle of the Bill. He now begged to say, that after long deliberation on the subject, his clear opinion was, that in cases of felony, of misdemeanours, and of high treason, the party accused in the Criminal Courts of this country ought to have the opportunity of making his defence by Counsel.

An hon. Member

opposed the Bill, on the ground that it would occasion considerable inconvenience in the due administration of justice. He conceived, that it was right prisoners should have Counsel in all cases in which speeches were made against them by Counsel for the prosecution. But in the English Criminal Courts, it was seldom the practice, in minor offences, for any speech to be made against the prisoner. He admitted, that it was sometimes done; but, speaking from his own experience, he confidently asserted that it was a course very rarely adopted; and he was perfectly certain that in the present Constitution of our Courts of Justice, it would be impossible to carry this Bill into execution. He hoped, therefore, if the Bill did pass, that the hon. Gentleman who had introduced it would alter the title of it, and instead of calling it a "Bill to provide prisoners with Counsel," he would call it a "Bill to give Prisoners to Counsel."

Mr. Cutlar Fergusson

had never heard in the course of all the discussions that had taken place on this subject a single reason or a single argument, allied to common sense, that operated on his mind the conviction that prisoners ought not to have Counsel. It was a common phrase, indeed, that the Judge was Counsel for the prisoner. The fact, however, was not so; neither was it the business of a Judge to assume that character. It was his duty to see that nothing was done against the prisoner contrary to law; but so also was it his duty to see that justice was done towards the Crown. Besides, how could the Judge be Counsel for the prisoner, he being totally ignorant of the case that might be urged on his (the prisoner's) behalf. He trusted, therefore, that he should never hear that argument again. The Bill itself had his entire concurrence.

Mr. Blackburne

said, that in the northern circuit he had always seen Counsel open the case for the prisoner, and if the practice was different in the midland circuit it should be altered and made the same. It ought not to be left to the prosecutor to say whether the prisoner was to be defended or not. He contended that little time of the Courts would be taken up if the Bill were permitted to pass. More time was lost now through the necessity of the Counsel putting questions to give the Jury a better idea of the circumstances of cases, and the present Bill, in nine cases out often, would be the cause of a saving of time. In the course of his practice, he always found that misdemeanours occupied less time than felonies. In burglaries, for instance, many minute circumstances might arise that it would be necessary for Counsel to explain to the Jury, and in which the prisoner required to have Counsel more than in cases of assault, in which punishment might not amount to more than a fine of five shillings. He would give his most cordial assent to the Bill.

Mr. Poulter

thought, that much error prevailed on this question. He approved of the proposition that prisoners should address the Jury by Counsel in all cases where the prosecutor's Counsel should have previously addressed the Jury. But by the present practice prisoners had a great advantage; because it was not necessary for any prisoner to establish a case of innocence. The argument, therefore, for giving Counsel to prisoners, was a great fallacy. He would rather leave them with the benefit they now enjoyed in the mode of administering the Criminal laws of this country. Nobody could present a single authenticated case of innocence having been convicted for want of the aid of Counsel.

Mr. O'Connell

I can.

Mr. Poulter


Mr. O'Connell

I can.

Mr. Poulter

If the hon. and learned Member for Dublin meant to say, that in the lapse of ages such a case could be adduced he (Mr. Poulter) would admit that it was simply possible; but what did it arise from? Not from the want of a speech being made by Counsel, but from the infirmity of human knowledge. He begged, however, of all cases, to exclude from their consideration whatever might have occurred in Ireland.

Mr. Shaw

desired to deprive the prisoner of no advantage, and thought that no consideration of time or convenience should weigh for a moment against the interests of justice; but his opinion was, that neither the advantage of the prisoner, nor the better Administration of justice, would be promoted by the Bill. The question was, not whether you would allow Counsel to the prisoner, for that the law did already—but whether Counsel should make speeches to the jury. They had, under the present system, ample means of addressing the Court on points of law, and suggesting all the important facts or views of a case upon which they might rely on cross-examination to the Jury. He had no objection to equalize the law in this respect, in the case of prosecution and defence—but if the Bill passed in its present form, it would impose a kind of necessity on an inferior class of the profession to address the Jury in every minor case of felony, and he did not consider that would be advantageous to the prisoner—but on the contrary, the Judge, in preventing the Jury from being misled, would probably have to make observations which might operate to the prisoner's disadvantage.

Mr. Charles Buller

thought it very extraordinary that any Gentleman should challenge, as the hon. Member for Shaftes-bury had done, the existence of any recent convictions in which the innocent party had suffered. He (Mr. Buller) would not go back to ancient cases: he appealed to the common experience of every one. He only asked the House to recollect the statements made at the discussion of the question last Session:—namely, that one Sheriff (Mr. Wilde) had during his Shrievalty saved no less than five persons who had been unjustly convicted. In that great city the public was not satisfied with the kind of trial which went on at the Old Bailey. In every case long negotiations went on to prove the guilt of the Prisoner. He went only as far as the present year. A few days ago, they had seen the convict Williams condemned for a capital offence; but respited because of doubts which existed after trial as to his guilt. His hon. Friend had thrown away some arguments which he considered stale, and unworthy of being used. He thought the arguments stale and unworthy. He had advanced the old argument that the prisoner would "lose by having Counsel!" It seemed to him (Mr. Buller) that some Gentlemen greatly overrated the facility of trials. It was thought sometimes, that criminal cases might be disposed of by any Judge. But there was the most difficult case of intention, and he (Mr. Buller) believed that in spite of the facility with which some Gentlemen thought Criminal cases were decided, there was quite as much difficulty in them as in civil cases. Gentlemen had entirely disagreed in their experience of the old law. His experience differed from both the hon. Members who had spoken. He could state that Counsel for the prosecution made speeches only in the most complicated cases. But it was in those very cases that the speech told most against the prisoner, for while every little fact was put together and given to the Jury in a certain light by the prosecutor's Counsel he had no right to rebut those interferences and conclusions by a similar statement on the part of his advocate. He was convinced that the real objection entertained by Judges and Chairmen of Quarter Sessions against the removal of this legal anomaly was their anticipation of a great waste of time by the speeches of the Counsel. It was, however, his opinion that by permitting those speeches much less time would be consumed, and such was the opinion of the hon. and learned Member for Huntingdon (Mr. Pollock). Counsel now endeavoured to address the Jury by the medium of cross-examination. He recollected one case in which a Counsel was for a quarter of an hour engaged in cross-examining a witness as to the point whether or not he had seen a dog run out of a house before the prisoner was said to have stolen a watch from the parlour. A friend said to him (Mr. Buller) in surprise, "Surely he is not going to charge the dog with the robbery." His (Mr. Buller's) impression was that the attempted defence was that the man had gone into the house to drive out the dog, and that by some accident the watch fell into his pocket. If the prisoner's Counsel had had to make a speech he would not possibly have set up so absurd a defence, and consequently have wasted so much time by cross-examination.

Mr. O'Connell

appealed to the extensive practice he had for years had in criminal cases at the bar in Ireland, in corroboration of the sentiments which it was well known he entertained on this subject. How often had it been his lot to waste the time of a Court by attempting to make, by a long cross-examination of witnesses, indirectly a speech for the prisoner, so as to explain by this circumlocution that state of facts which would have been instantly explained had he possessed the power of uttering only four or five consecutive sentences as a defence for his client. He had witnessed numerous cases when for want of this equitable chance being afforded to a prisoner, as well as to his accuser, the unhappy man, though innocent, was found guilty. The prosecutor's Counsel's character was at stake, and he drew upon his own ingenuity. Why should not the permission to manage his case be granted also to the prisoner? By our law, a man arraigned for a misdemeanor, or a 5s. fine, would have the advantage of a speech from Counsel, whilst if a felony, when his life was to be the forfeit, the right was refused to the prisoner. The learned Recorder opposite had declared it was not for the interest of prisoners that their Counsel should be allowed to address the Jury, for they might by chance employ unskilful barristers; but might not the prosecutor employ incompetent men, and was it likely that the prisoner and his friends would fail in their exertions to seek out the most talented and experienced advocates? At one time the admission of evidence for prisoners was objected against on the ground that a Jury never convicted but on demonstration of guilt, and that the balancing of evidence by the Judge would frequently be detrimental to the prisoner's case. That objection was to be put on one side, and was now as justly ridiculed as he hoped would speedily be the objections to giving prisoner's Counsel the proposed liberty.

Sir Eardley Wilmot

said, he had no objection to Prisoner's Counsel addressing the Jury in capital cases, but in petty larceny trials he thought it would be most inexpedient.

Mr. Goulburn

considered the grand objection to the proposition to be this. It would not be denied that in criminal cases the attainment of truth was the chief object, but if Counsel were allowed to argue every point, and to make their own statements of the case, the display of legal ingenuity rather than the development of truth would be the consequence. This was known to be the fact in cases of misdemeanor, in which Prisoner's Counsel frequently kept back their evidence, and trusted the acquittal of their client to the power of their eloquence. As to the right at present possessed by the Prosecutor's Counsel, he had seldom heard it controverted that it was the practice of the profession never to exceed a simple unvarnished statement of the facts they intended to prove.

Dr. Lushington

said, that the hardship inflicted on prisoners by denying their Counsel a right of addressing the Jury had attracted considerable attention so long back as 1805. He remembered that on one occasion thirty-one prisoners were convicted upon certain evidence, and sentenced to execution. A few days after other prisoners were, upon the very same evidence, found not guilty—the consequence of which was, of course, a pardon to the thirty-one. At the Admiralty Sessions he laboured for three hours to make the Jury acquainted, through his mode of cross-examination, with certain indispensable points, which they were wholly unable to comprehend. His efforts were vain, and the prisoners were acquitted only on a point of law.

Mr. Sinclair

thought that prisoners and prosecutors should at least be put on an equal footing.

Mr. Sergeant Talfourd

was quite willing to allow, for the sake of argument, that there was nothing but the justice of the case to be argued in favor of the Bill. He believed it would be found that the most eminent Counsel were in the habit of strongly exciting prejudice and ill-feeling towards prisoners. He would allude to the case of a Mr. Thatcher, tried at Warwick, where the prisoner had not only to contend with all the prejudice which the prosecutor had raised against him, but the Counsel for the prosecution at the close of a most ingenious speech, declared that "the murderer was unmasked." Another case which he recollected was that of a person who was indicted for a rape upon a young lady, the daughter of a master of the ceremonies at one of our watering-places. Not only did Mr. Erskine, who was Counsel for the prosecution on that occasion invest the supposed victim with all the charms which his fascinating eloquence could throw around her; but he concluded by pointing to the prisoner at the bar, and asking the Jury "whether they could suppose it possible that the plaintiff could have gone, voluntarily, into the arms of the squalid wretch before them?" These were the terms in which the Counsel addressed the Court against prisoners, who had not an opportunity of saying a word in their defence. Such addresses as these would scarcely be endured at the Bar now; but he deprecated still more the want of warmth which at present prevailed; the Counsel for the prosecution laying the facts before the Court in such a mode, as to present a hideous picture of the prisoner's crime to the minds of the Jury, and then taking credit to himself for a mercy the most insidious and dangerous that could be conceived. In a case of circumstantial evidence, the prisoner was not only without adequate defence, but without any defence at all. The means of cross-examination seemed, to those not behind the scenes, more effective and powerful than the person who understood the machinery of these matters knew it to be. It might sometimes, produce such an effect as to confound a foolish witness, and deceive the best. It was, however, much more difficult, also, than some Gentlemen imagined to elicit the truth by cross-examination, and how was the prisoner to be defended, when the evidence of the witnesses against him, could not be taken by that method, and his Counsel could make no statement to the Jury in cases where the infirmity of human nature was most to be deplored, and false judgement most to be apprehended? Without a statement to the Jury, how was it to be expected that during cross-examination the Jury or the Judge would be able to understand at what point the Counsel was aiming, or what was the real nature of his defence? With respect to some of the cases which had been alluded to, he could only say, that it had been his lot to defend a prisoner, whom he had seen convicted under circumstances in which public feeling had not been satisfied, nor justice satisfactorily administered, and with a deep sense of the infirmity of human tribunals—all which must have been remedied by the plain justice of allowing the prisoner the advantage of a Counsel.

An Hon. Member

would undertake to say that if the proposition were agreed to, the business at the West Riding of Yorkshire Sessions would never be got through.

Mr. Jackson

was satisfied that, in cases of circumstantial evidence, the Prisoner's Counsel ought to be allowed to address the Jury.

Mr. A. Sandford

moved, that at the end of the first clause the following provision be added, "Provided, nevertheless, that in cases of felony, unless the Counsel against the prisoner shall have made a speech in the prosecution, the Counsel for the prisoner shall not address the Jury in defence of such prisoner."

The Attorney-General

opposed the Amendment: it was very plausible but it would have the effect of placing the rights of the prisoner in the custody of the prosecutor. In many cases it might happen, whether intentionally or not, that the Counsel for the prosecution would also abstain from making a statement to the Jury, and thus deprive the prisoner of his right just when he most needed it, for instance when the Counsel for the prosecution could make out a strong prima facie case against the prisoner, he would not trouble himself with a speech but go at once to the evidence, and that was just the case in which the prisoner was most in danger. It seemed to him, therefore, that it would be impossible to accede to the Amendment without totally destroying the very principle of the Bill.

The Committee divided on the Amendment; Ayes 26: Noes 30; Majority 4.

Clause agreed to.

On the next Clause being; read, to the effect that "in cases before Magistrates prisoners should not be allowed Counsel unless by the Magistrates' permission," amendment was moved by Mr. Buller, in these words:—"Except in cases where Magistrates have summary jurisdiction." The Committee divided when there appeared—

On the Amendment Ayes 22; Noes 22.

The Chairman gave a casting vote in favor of the amendment, which was agreed to.

List of the AYES.
Aglionby, H. A. Pease, J.
Baldwin, Dr. Pryme, G.
Bish, T. Rundle, J.
Blackburne, J. Ruthven, E. S.
Blake, M. J. Strickland, Sir G.
Chalmers, Patrick Sullivan, R.
Crawford, S. Wakley, T.
Ebrington, Lord Walker, C.
Elphinstone, H. Wallace, R.
Hume, Joseph Warburton, H.
Musgrave, Sir R.
O'Brien, C. TELLER.
Parker, John Ewart, W.