HC Deb 10 June 1842 vol 63 cc1448-55
Mr. Roebuck

moved the third reading of the Witnesses' Indemnity Bill. The crime about which they were inquiring was one that could not be committed by a single person—there must be the briber as well as the bribed. The crime, unfortunately too, was one not branded by society, but rather looked upon with toleration. It would be frequently found that a party would be willing to make disclosures as to himself, but not as to others. Persons would object to involve their friends, and one of the objects of the bill was to remove that impediment from arriving at the truth. The inquiry was not one the object of which was vengeance nor punishment—it was for legislation. They wanted to know how these crimes were committed, in order that they might hereafter prevent an occurrence of them, through legislation. What he wanted was a thorough and searching inquiry. Two objections had been made to the present bill; one was its novelty, the other the mischief that it might do. The mere novelty was not so strong an objection that it should appear insuperable; and then as to the mischief, he certainly could see no danger in the House granting the powers that he sought for. He hoped they would be granted, in order that the committee might search to the bottom of these transactions. If they were not, the inquiry, he feared, would be truncated, and not give that satisfaction which it was otherwise calculated to produce.

The Attorney-General

said, the present bill went far beyond all other precedents, and was fraught, if adopted, with considerable danger. The first clause gave a power to the chairman to give to the party under examination a certificate, stating that such person had made a faithful disclosure, and that certificate was to have the effect of a complete indemnity with respect to all things that either he or she had been examined before the committee, and not going beyond that. The second clause enacted as follows:— "And be it enacted, that it shall be lawful for such committee, at its discretion, to make a report to the House of Parliament by which it shall have been appointed, certifying that any witness examined by or before it, or any person touching whom evidence shall have been given before it, shall be saved harmless from all proceedings, and such person so mentioned in such report shall be and is hereby freed, indemnified, and discharged of, from, and against all penal actions, forfeitures, punishments, disabilities, incapacities, and all criminal prosecutions which he or she may have been or may become liable or subject to, or which he or she may have incurred or may incur at the suit of her Majesty, her heirs or successors, or any other person or persons, for or by reason or means of or in relation to any act, matter, or thing done or committed by such person in respect of or connection with or compassing of the withdrawing or of having withdrawn, compromised, or abandoned any election petition or petitions relating to the boroughs or places before-mentioned, or in anywise relating thereto, or to any bribery, corruption, or intimidation, at any election or elections of Members to serve in Parliament, at any time whatsoever. No act of indemnity before this had ever gone beyond the giving indemnity to the witness examined, and with regard to the matter upon which he had been examined. The present bill, however, proposed to give to the individual witness an indemnity on every matter of bribery on every other election whatever that he might choose to give evidence; but the bill also proposed to extend the indemnity to individuals who did not give evidence, but who might be named in the report. He opposed the bill in this part, because here it went beyond the established precedents. On the other parts of the bill he surrendered his own opinion, because of the established precedents. He meant to throw no other impediment in the way of the bill, if the second clause were removed. There had been very few bills of this description. The first was in 1805, upon the impeachment of Lord Melville. In 1819, there was the Barnstaple case, and then the Grampound case—and then followed Penrhyn, Retford, and Stafford, and then came this case. What the hon. and learned Gentleman was anxious for, was to give to each witness the motive to tell the truth. Let them, he said, do nothing to get rid of that protection which the law gave, that no man was bound to criminate himself. The law justified a man in protecting himself, but not in protecting another. If they gave that power, it would stamp the transaction with the character of bribery. To the second clause he had a very great objection, and after the bill had been read a third time he meant to propose that the clause he ob- jected to should be struck out; and that being done, he wished his hon. and learned Friend the success that he hoped for, although he owned he was not very sanguine on the subject.

Sir R. H. Inglis

said, the present instance showed that bills ought not to be allowed to be read a third time from any considerations of personal convenience. He thought the objections to the bill ought to have been taken at an earlier period. He objected to this bill because it proposed not only to indemnify witnesses but parties also. This bill would have the effect of promoting a betrayal of confidence between a principal and his agent. Would not the effect of the measure be, if it were effectual, to compel an hon. Member and his solicitor also to disclose matters, which, if they were before the Court of Queen's Bench, they could not be compelled to disclose? He asked this because he understood that the object of the hon. Member for Bath was inquiry, not punishment. He thought, that, however good the object, there were many good objects that could only be attained by means so bad as that their success would be very dearly purchased. He concurred in the observations of his hon. And learned Friend the Attorney-general, and he hoped that the hon. Member for Bath would intimate his intention to withdraw his clause.

Mr. Hardy

could not give his consent to this clause of the bill. He thought it going too far to indemnify, not only witnesses, but also to identify parties respecting whom evidence had been given. There was another objection, and it was this. By what means would they compel the witnesses to give evidence? The indemnity which this bill proposed was when the committee reported that the witness had given true and faithful evidence. How would the witness be sure that the committee would so report, and when a witness went before the committee he would still have a right to object to answer, on the ground that his answer might criminate himself. In 1836 he, in conjunction with the late Mr. Ord, then a Member of the late Administration, brought in a bill which contained a clause for the purpose of discovering bribery. This clause met the unanimous concurrence of that House. But the bill did not afterwards pass the House of Lords, partly on account of the approaching termination of the Session. The effect of the clause was, that they should be able to compel every one who might be called on to give evidence in an inquiry respecting bribery. The clause provided, that after the passing of that act nobody should be entitled to object to be examined as a witness, or to answer any questions, either before that House or a committee of the House, on the ground that his doing so might criminate himself; and the clause further provided, that any answer so given could not afterwards be used against the witness, unless upon a prosecution for perjury. He thought that a provision of this kind would answer all the purposes of justice, and would be more effectual than the bill of the hon. and learned Member for Bath. The bill did not stop at giving indemnity to witnesses, but extended it to all whom their evidence might implicate, and this he thought a monstrous provision.

Mr. O'Connell

could not go with the bill, as far as the second clause relieved persons from prosecution against whom witnesses might have given evidence as having been concerned in bribery, and he would recommend his hon. Friend to withdraw the clause. He would take this opportunity of protesting against that leaning of the legal mind which he had heard exhibited in favour of what was considered to be a sound legal maxim, which prevented people from answering questions which might tend to criminate themselves. It was a principle unknown in any system of jurisprudence except that of this country. He did not know one principle so well calculated to prevent the discovery of criminality. Lord Denman had laid it down, that any fact which might connect itself with anything which had a tendency to criminate the witness might be concealed. An instance occurred last year of the baneful effects to the ends of justice of the maxim in question on a trial in the House of Lords. An objection was made by counsel on that ground. What was the effect? Why, that that which all knew to be a fact, which occurred in the presence of twenty people, could not be proved by reason of this maxim. Could there be a more glaring instance of the manifest injustice of the operation of the principle. He was not in favour of any mode of compelling witnesses to make disclosures, he simply protested against the principle of their being allowed to evade justice on the ground that their testimony would criminate themselves.

Mr. Williams Wynn

objected to the bill indemnifying any persons whose names might be introduced by witnesses, as having been connected with mal-practices. The indemnity should only extend to prevent any thing said by a witness from being made use of against himself. He objected to the second clause.

Mr. Roebuck

would save the time of the House, by at once acceding to the proposition of the hon. and learned Gentleman, the Attorney-general, and withdrawing the second clause.

Mr. Law

suggested that the revealing of confidential communications between a client and a professional man should not be allowed to be attended with prejudicial consequences to the latter.

Mr. C. Buller

regretted that his hon. Friend had consented to withdraw the clause. It was for the dignity of the House to accompany the severe proceedings which it was about to institute by a general indemnity clause. It would become the House to say, that as they were about to create unusual powers, those powers should not be used for the hurt of any persons; and while they would expose the proceedings of late elections, they would throw around those concerned in them the mantle of general indemnity. He thought, that parties would have a right to complain, if, after having gone through the ordinary legal proceedings, they should be subjected to a fresh inquiry, of which the consequences might be penal proceedings, to which in the ordinary course of law they would not have been subjected. The object of the bill was to prevent any such proceedings; and when they made these inquiries for objects of public utility, they should put their intentions above the imputation of malignity or extraordinary severity.

Mr. Darby

thought that the effect of the bill would be to make people join to impede the law, and that it would have the effect of injuring the good which would be otherwise done by the Bribery Bill before the House. It was quite a new principle to introduce an indemnity bill for the purpose of legislation without affecting any individual. Thinking that the bill would not elicit truth, but that it would have the effect of creating evidence against parties who must necessarily be absent when that evidence was given— under all these circumstances, believing that the bill was an anomaly, that it would be of little or no use, he would oppose the third reading.

Mr. Watson

said, that if the investigation of the hon. Member for Bath was to be carried on, they must examine witnesses connected with bribery, and it would be impossible to carry on that investigation unless they provided indemnity against the evidence which witnesses were to bear before the committee. But there was one observation which seemed to be lost sight of on the other side of the House. Witnesses were not to be indemnified in giving evidence, but it was to be in the discretion of the committee to grant to the witness a certificate, which would have the effect of screening him from prosecution, and therefore it would be only cases in which the witness had given fair and true evidence, that the indemnity would be granted. As regarded the second clause, he did not deem it very highly important, whether or not it should pass, but there were reasons why it should. With respect to the suggestion which had been thrown out with reference to evidence given by attorneys, it should be recollected that such evidence was often given by consent of their clients, and he thought that persons giving such consent, should, in such cases, be indemnified.

Bill read a third time.

Amendments made—Bill passed.