PRISONERS' COUNSEL BILL. (Hansard, 19 August 1836)

§ Lord John Russell

said, that the differences which had arisen between the two Houses, with respect to this Bill, were not differences with regard to the principle of allowing counsel to prisoners in cases of felony. This was a very great and important principle, for urging which, and persevering in urging it, on many oc- 1324 casions, the hon. and learned Member for Liverpool (Mr. Ewart) deserved the greatest credit with that House and the country, and on that important principle which, in cases of felony, allowed counsel to prisoners, as in cases of misdemeanour, the two Houses were in accordance. There was, however, another question put forward by this Bill—namely, whether or not the counsel for the prisoner should have the last word? Upon this subject he must say, that he agreed with the Bill as it had been sent up from the House of Commons, as he thought that, if a second speech were allowed to be made by counsel on behalf of the prosecution, there should be a second speech on behalf of the prisoner. But he thought there was a difference on this question, as it was originally mooted, and that it involved other and separate considerations, and ought to be treated separately. The practice of allowing prisoners counsel in cases of high treason, and misprision of treason, had existed since the year 1688, when it was adopted, on the ground that prisoners, in such cases, were exposed to a powerful prosecution, which rendered it necessary that they should be defended by counsel. This principle was contended for and established, after some differences between the two Houses. He believed, that the practice then established was, that if the counsel for the accused person called witnesses, and the counsel for the prosecution relied on the testimony he had brought forward, there should not be an answer on the part of the prisoner. This, he believed, was the case in cases of high treason. Therefore, if they admitted, as they did, in their last amendment, that in cases of high treason and misprision of treason, the counsel for the accused should not be allowed two speeches, there was no reason why they should have more than one in cases of felony. This question required a good deal more consideration, and though he was in favour of the original Bill, as sent up by the Commons, yet this principle might be separated from the Bill, and form matter of subsequent deliberation. He might state that he had received a letter on this subject, from the Lord Chief Justice of the King's Bench, Lord Denman, in which that noble Lord had stated, that it was a question of considerable anxiety as to the way in which this practice should be brought to a settlement. He would not go into his noble and learned Friend's rea- 1325 sons, but he could certainly state, as a summary of his opinion, that his noble Friend considered this a separate question, and one which required great deliberation. He did not think the enactment of any particular practice, supposing it to be much better and more just, formed part of the Bill which allowed counsel to prisoners in cases of felony. Lord Denman had always been the advocate, in that House and elsewhere, of the principles of this Bill, and it was his well-known opinion, that it was most desirable that prisoners, in cases of felony, should have the benefit of counsel. Those opinions, that noble and learned Lord had maintained, at a time when they were much less generally entertained than at present. Of the same opinion was his hon. and learned Friend the Attorney-General, and of the same opinion also was the Solicitor-General. With these opinions, therefore, he thought himself justified in coming to the conclusion, that he would be acting advantageously to the country upon the whole, in taking this Bill, without insisting upon those clauses to which the House of Lords had disagreed. Those clauses would form matter for future deliberation. For the reasons he had stated, he should conclude by moving, that a message be sent to the House of Lords, to inform them that this House did not insist upon disagreeing to the amendments made by the Lords in this Bill.