HC Deb 02 March 1836 vol 31 cc1156-61

The House again went into Committee on the Prisoners' Counsel Bill, and immediately divided on the Question, that Clause 2nd Stand part of the Bill.

The numbers were—Ayes 134; Noes 50—Majority 84.

List of the NOES.*
Bailey, Jos. Heathcote, G. J.
Blackstone, W. S. Hope, H. T.
Bonham, F. R. Hoy, J. B.
Campbell, Sir J. Jackson, J. D.
Chichester, J. P. Johnstone, J. J. H.
Childers, John Knatchbull, Sir E.
Clerk, Sir G. Knightley, Sir C.
Cole, Hon. A. Lawson, A.
East, J. B. Lefroy, Rt. Hon. T.
Elley, Sir J. Lefroy, A.
Finch, G. Lowther, J. H.
Forster, C. S. Martin, J.
Freshfield, J. W. Mordaunt, Sir J.
Gaskell, J. M. Pendarves, E. W.
Glynne, Sir S. Perceval, Col.
Goring, H. D. Pollington, Viscount
Grote, G. Rickford, W.
Hale, R. B. Rolfe, Sir R. M.
Hanmer, Sir J. Ross, C.
Hardy, J. Rushbrooke, Col.
Hay, Sir A. L. Scholefield, J.
* This and the following Division were not inserted in the Votes of the House.
Stanley, E. Wyndham, W.
Thomas, Col. Wynn, Rt. Hon. C. W.
Trevor, Hon. A, TELLER.
Vere, Sir C. B. Buller, C.
Vesey, Hon. T.

On the 3rd Clause, which provides "That all persons accused before any Justice or Justices of the Peace of any offence against the law, shall be admitted to make their answer and defence to such accusation, and to have any witnesses examined or cross-examined by Counsel or by Attorney attending on their behalf,"

Sir Edward Knatchbull

said, that he should think it his duty to divide the Committee on this clause, and would move an amendment in words to this effect:—"That permission to employ Counsel or Attorney should be granted to the parties accused, only in cases where Counsel or Attorney should have been engaged against them; that both parties should stand upon an equal footing, that neither the one nor the other should have any advantage in respect of Counsel."

The Attorney-General

thought, that where an information was laid before a Magistrate, and a man was liable, if convicted upon trial, to be sent to the House of Correction, and confined at hard labour for six months, he had just as good a right to be defended by Counsel and Attorney before a Magistrate as before a Judge. But this clause would give a party accused a right to attend by his Counsel and Attorney at preliminary investigations before a Magistrate, and to bring witnesses to prove his innocence. It seemed to him that there were many cases in which a Judge was required to keep these preliminary investigations secret, that He might be enabled by the facts established on these occasions to find out who were the parties really guilty of the offence. It was plain that in such a case the accused might claim under this clause to be heard by his Counsel and Attorney; they might take notes of the evidence adduced; it might be published next morning in all the daily papers, and thus notice of their danger would be given to all the persons concerned in committing the offence. He quite agreed with the right hon. Member for Kent, that it was not at all necessary that there should be a defence by counsel or Attorney on preliminary investigations. When the prisoner came to be tried, than let him have his counsel—let him have every advantage; but he could not con- sent to make publicity the indispensable consequence of preliminary investigations. They saw this principle of secrecy exemplified every day in the administration of justice. Before a Grand Jury a man could not be defended by Counsel and Attorney, for that was an ex parte proceeding; but when they found a bill against a man, and he was put on his trial, Counsel and Attorney were justly granted to him. He should be very much pleased to see The Bill so modified as to give a power to prisoners to employ counsel in all cases of summary proceeding before Magistrates, but he did most respectfully warn the Committee that many injurious consequences might follow from passing it in its present state.

Mr. Sergeant Woulfe

said that the Committee had thought that persons accused before Magistrates should have the benefit of Counsel for the purpose of satisfying the Judge of all the circumstances of the case. It was a most monstrous thing that a man should be liable to be tried in a summary way by a Justice of the Peace without Counsel. Until lately the law of England was, that where a man was brought before a Justice of the Peace not for the purpose of considering whether he should be committed for trial, but for the purpose of trying him, he was allowed the benefit of Counsel and Attorney. At present the Magistrate might refuse to allow Counsel, and in some cases he had refused. He wished to establish that as a right which was now only a matter of favour.

The Solicitor-General

was certain that it would be most inconvenient if counsel were allowed to parties accused at preliminary investigations, and if the trial were thus converted into a kind of appeal from the decisions pronounced at these processes. There could be no doubt that the clause was originally intended to apply only to cases of summary conviction, and that the doubt had arisen from the manner in which it was worded.

Mr. Aglionby

would put to the Solicitor-General a case where the Magistrates acted both as Judge and Jury, in which they had the power either of granting bail to the party accused, or of committing him to prison. Was it not a most important consideration whether a man should be incarcerated for some long and dreary months in a prison, or allowed to retain his liberty on bail—whether he should be dragged from his home, on his first offence, perhaps, taken before a Magistrate, and confronted by hostile attornies, without being permitted the aid of Counsel to defend himself?

The Committee divided on the Clause, Ayes 93; Noes 110: Majority 17.

List of the AYES.
Baldwin, Dr. Lynch, Andrew H.
Bodkin, John J. Lennard, Thomas B.
Brotherton, J. Lennox, Lord J. G.
Barnard, E. G. Lennox Lord Arthur
Blake, Martin J. Mangles, James
Bernal, Ralph Mullins, F. W.
Bowring, Dr. Morrison, J.
Fish, Thomas Marshall, William
Bagshaw, John O'Loghlen, Serg, M.
Brabazon, Sir W. Oliphant, Lawrence
Bridgeman, Hewitt O'Brien,—
Brady, Denis C. O'Connell, Daniel
Buckingham, J. S. O'Conner, Don
Baines, Edward O'Connell, John
Bowes, John O'Connell, M. J.
Berkeley, Capt. F. Parrott, Jasper
Brownrigg, John S. Pattison, James
Chichester,— Pryse, Pryse
Crawford, William S. Palmer, Gen. Charles
Chalmers, Patrick Power, James
Crawley, S. Potter, Richard
Curteis, Herbert B. Ruthven, Edward
Divett, Edward Roche, David
Ewart, William Rippon, Cuthbert
Evans, George Roebuck, John A.
Elphinstone, Howard Ramsbottom, John
Fergus, John Smith,—
Finn, William F. Strutt, Edward
Fitzsimon,— Stewart, V.
Gillon, William D. Sheldon, Edward R.
Gaskell, Daniel Steuart, R.
Grote, George Thompson, Col.
Grattan, Henry, Turner, William
Heathcote,— Thornely, Thomas
Hodges, Thomas T. Tulk, Charles A.
Hogg, James W. Villiers, Charles P.
Hall, Benjamin Wallace, Robert
Hector, C. J. Ward, Henry G.
Hutt, William Warburton, Henry
Harland, William C. Williams, William
Howard,— Wakley, Thomas
Hume, Joseph White, Samuel
Humphrey, J. Wilkins, Walter
Horsman,— Wigney, Isaac N.
Jervis, John Woulfe, Sergeant
Kemp, Thomas R. Williams, William A.
Leader, John T.

Clause rejected.

On the 4th Clause, which proposes "that all persons who, after the passing of this Act, shall be held to bail or committed to prison for any offence against the law, shall be entitled to require and have on demand (from the person who shall have the lawful custody thereof, and who is hereby required to deliver the same) copies of the examinations of the wit- nesses respectively upon whose depositions they have been so held to bail or committed to prison, on payment of a reasonable sum for the same, not exceeding 4d. for each folio of 100 words."

Mr. Sergeant Woulfe

moved, as an amendment, that there be inserted after the words "committed to prison" the following:—"or which since their committal to prison or admission to bail have been, taken before any Justice of Peace." His hon. and learned Friend near him said, that no such practice as that which his amendment was intended to check existed in England; but this he knew, that the practice of taking depositions against the prisoner in his absence after he was sent to prison was very prevalent in Ireland, and as this Bill extended to Ireland, he thought his amendment highly necessary.

Mr. Cutlar Fergusson

contended, that in England no Magistrate had a right to take depositions against a prisoner in his absence. The practice which the hon. and learned Gentleman wished to check had no existence in England. He should be sorry to see the admission in an Act of Parliament that such a practice was sanctioned by the Magistracy of England. He should certainly oppose the amendment.

Mr. Sergeant O'Loghlen

said, that the practice of taking depositions in the absence of prisoners prevailed in Ireland. So far was it from the fact that prisoners were present when the witnesses were examined against them before the Magistrates in cases of felony, that the reverse was generally the case. In Ireland the practice was to refuse to the prisoner the depositions or copies of the depositions made against him. The amendment was therefore necessary. The practice which it was intended to abolish was very injurious to the prisoner, and certainly ought not to be continued.

The Attorney General

could not assent to the amendment, as it would appear to legalize a practice which he abominated. If such a practice as that which the hon. and learned Sergeant described prevailed in Ireland, it was illegal, and ought at once to be reprobated. He remembered that in Lord Ellenborough's time an instance had occurred, in which a Magistrate had taken depositions against a prisoner in his absence, and that his Lordship had strongly reprobated the practice. Instead of introducing a clause like this, a Bill should be introduced to say, that if this practice be now law, it ought not to be law any longer.

Mr. Williams Wynn

concurred in what had fallen from the Attorney-General, and should oppose the amendment.

Sir Edward Katchbull

observed, that in England the practice was that which had been described by the Attorney-General; if the practice were so bad in Ireland, it ought to be put a stop to, but it would be unjust to do anything which might by implication confound the practice of the two countries, and therefore he objected to the amendment.

Mr. Aglionby

doubted whether the objectionable practice was illegal in Ireland, where the Act 7 and 8 George 4th did not apply. He hoped the Attorney-General would reconsider his opinion, and allow words to be introduced into the clause which would remove all doubt on the subject.

Mr. Roebuck

thought, if words were introduced simply declaring that no depositions should be used against a prisoner but such as had been previously communicated to him, it would remove all difficulty, without declaring any thing as to English or Irish practice.

Mr. Sergeant Woulfe

, after the declaration of the Attorney-General, would withdraw his Amendment.

Clause agreed to.

On Clause the 5th the Committee divided. Ayes 158; Noes 51: Majority 107.

House resumed; Committee to sit again.