HC Deb 17 February 1836 vol 31 cc497-501
Mr. Ewart

moved the second reading of the Prisoners' Defence by Counsel Bill. In doing so, he said, that he had brought forward the Bill on the same grounds urged by him last Session. That being the fact, he did not deem it necessary to go into any very lengthened details on the present occasion. His great object then, as now, was, to secure the means of eliciting truth and promoting justice. He felt strengthened in his course of proceeding by the example of other countries on this very question; and by the fact that his Bill had received the sanction and support of gentlemen of the bar of Scotland.

Sir Eardley Wilmot

said, that the opinions he entertained last Session in regard to this measure had been fully confirmed by the inquiries he had since made, and he therefore felt called upon to move, that the Bill be read a second time that day six months. Nine-tenths of the profession and the Judges were decidedly hostile to the alteration it proposed. If any practical measure—a measure, for instance, doing away with all speeches upon a criminal prosecution, or for allowing a speech for the prisoner when there was a speech for a prosecution—were introduced, he would give it his support; but he could not consent to a Bill, which, like the present, opened the door to the greatest possible confusion and inconvenience, without being calculated in the smallest degree to assist those for whose benefit it professed to be introduced. He moved as an Amendment, "That the Bill be read a second time that day six months."

Mr. O'Connell

said, that the law, as it at present stood, was abominable. Nothing could be more frightfully unjust. In a criminal prosecution the prosecutor's counsel might make two speeches, while the prisoner's counsel was not allowed to say one word. There were cases of circumstantial evidence in which, unless counsel were allowed to interfere, the facts must remain unexplained. He had known instances in which prisoners could not possisibly have been convicted had counsel been allowed to plead in their favour. He remembered a case of three brothers who had been convicted, when he was satisfied that if he had been allowed to speak for only five minutes he could have proved their innocence. He must complain of the conduct of some of the Judges in Ireland, as well as of the motives of certain barristers who had given evidence on the subject before a Committee of the House of Lords. He thought the hon. Baronet ought to allow the Bill, at all events, to pass a second reading, and then in Committee seek to mould its details into the form he thought most advisable.

Sir Frederick Pollock

entirely agreed in what had fallen from the hon. and learned Member for Dublin on this subject. The present state of the law was not only disgraceful to the Legislature, but most dangerous to the community at large—It was also fraught with anomalies. If a man were under a criminal charge, would he not be desirous to have counsel? And if capable of addressing the Court himself, might he not be his own counsel? The principle was strictly observed in civil cases, and he did not see why it should not apply with infinitely greater force in those which were of a criminal nature. It was quite impossible that the Judge could act as counsel for the prisoner, all he could do was to ascertain the particulars of the charge brought against him. He (Sir F. Pollock) held it to be essential that the prisoner's counsel should have the last word. He had frequently known a good defence to be kept back through the fear of the reply on the part of the counsel for the prosecution. He entirely concurred in the principle and objects of this Bill.

Mr. Poulter

would never consent that every case of felony should be accompanied with a speech from the counsel for the prisoner. Were such a practice to be adopted it would have the effect of destroying that pure administration of justice which had hitherto been attended with such beneficial effects, and he believed, likewise, that it would prove highly injurious to the prisoner's case.

Mr. Lynch

supported the Bill. In every country of Europe the privilege of being heard by counsel was allowed the prisoner; and even in this country it was not prevented by statute, but only by usage.

Mr. Sergeant Goulburn

was convinced that the Bill would fail in assisting the ends of justice. He thought it advisable, as it was in accordance to all precedent, that none in a Crown Court should be permitted to speak but the Judge. He would not deny that in other countries where there was more excitement, he was happy to say, than in ours, a system similar to the one proposed might be of service. The measure was opposed by the Judges, who thought it unfair to the prisoners.

Dr. Lushington

was decidedly in favour of the Bill; and when it was said by those who opposed It that the whole weight of the bar, and the whole authority of the bench was ranged against it, he would only observe that the noble and learned Lord, the Chief Justice of the King's Bench, whose situation as Common Sergeant in the City of London, had given him great experience in the administration of Criminal law, had expressed to him an anxious wish for the success of a measure of this description. He agreed with the hon. and learned Member for Huntingdon, (Sir F. Pollock), that the law, in its present state, was a disgrace to the country.

Colonel Perceval

would not allow the question to go to a division without throwing back the imputation cast upon the learned Judges in Ireland by the hon. and learned Member opposite (Mr. O'Connell). It was the habit of the hon. and learned Member to charge those learned Functionaries with partiality. He grounded his charges not upon facts, but his prejudices. He also felt it his duty to do the same with regard to a learned Friend, whom he had also the honour to call a countryman (Mr. C. Phillips). The hon. and learned Member for Dublin had insinuated that the evidence given before the House of Lords by that Gentleman on the subject of having counsel for prisoners, was influenced by the poor, paltry, and pitiful consideration of fees. This he thought a most unjust imputation. In conclusion, all he should say was, that he thought the present law was better than the proposed measure.

The Attorney-General

had heard nothing which tended in the slightest degree to alter the opinion which he had formed upon this subject very early in his professional career. It had been stated by those who were opposed to the measure, that no members of the legal profession, who had practised much in the Crown Courts, had expressed an opinion in its favour. Now it so happened, that nearly the whole o the first part of his professional life had been passed in the Crown Courts, and from the experience he had thus acquired of the administration of criminal law, he was strongly of opinion that a measure of this description was absolutely necessary to vindicate the law of England from a deep and disgraceful stain. There was no reason why counsel should not be allowed to speak for the prisoner in cases of felony as well as in cases of misdemeanor. The anomaly which the law as it now stood presented upon that point, he conceived to be a scandal to the administration of justice in this country. That some inconvenience might result from the change was no reason why a glaring injustice should be allowed to remain. It was high time that the scandal should be removed. Therefore, although he thought that some of the details might require alteration, he should give to the principle of the present Bill his firm and cordial support.

Mr. Cripps

thought, that if the Bill were passed, prisoners would not be so well off as they were under the present system.

Mr. Plumptre

said, that the question was, whether the practical working of such a Bill would be beneficial to prisoners. If he could persuade himself that it would be realty advantageous to them, he should give it, his warmest support. But he confessed that, as at present informed, he entertained very strong doubts upon the point.

The House divided.

On the Motion for the second reading, Ayes 179; Noes 35—Majority 144.

List of the NOES.
Archdall, M. Lefroy, Sergeant
Barneby, J. Lefroy, A.
Blackstone, Wm. S. Maclean, D.
Buller, Sir J. Nicholl, Dr.
Cartwright, W. R. Perceval, Colonel
Chandos, Marquess Plumptre, J. P.
Clive, E. B. Poulter, J. S.
Cripps, J. Price, S. G.
Divett, E. Sibthorp, Colonel
Dundas, G. Somerset, Lord G.
Egerton, W.T. Trench, Sir F.
Fector, J. M. Trevor, Hon. G. R.
Goring, H. D. Weyland, R.
Goulburn, Rt. Hn. H. Wrottesley, Sir J.
Heron, Sir R. TELLERS.
Hope, H. T. Goulburn, Sergeant
Inglis, Sir Robert Wilmot, Sir E.
Lawson, A.

Bill read a second time, and referred to a select Committee.

[The List of the Ayes obtained on this division was so extremely inaccurate, being deficient as originally published, no less than fifty-six names that it would only mislead were we to insert it.]

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