PRACTICE IN COURTS OF LAW. (Hansard, 6 March 1845)

§ Mr. Ewart

said he had given notice of another Motion, which he would beg leave slightly to modify in offering for the consideration of the House. It was for a Bill to enable the defendant's counsel in civil, and the prisoner's counsel in criminal cases, to address the jury on the close of the evidence for the prisoner or defendant. If it would be more in accordance with the opinion of the right hon. Gentleman opposite (the Attorney General), he would alter his Motion so as not to move for leave to bring in a Bill, but simply to draw the attention of the House to the subject. He would not have brought the matter forward in its present form, were it not that having had opportunities of communicating on the subject with some of the most eminent lawyers in the kingdom—not only counsel but solicitors — and 395 having heard their opinions on the evil consequences of the present system, he had been induced to press it at once before the House. The mode of proceeding in their courts of law was well known. The plaintiff's counsel opened the case and produced his evidence. The defendant's counsel had then a choice of either calling evidence, after addressing the jury in the first place, and then giving the right to reply to the plaintiff's counsel, or else of simply making his appeal to the jury without producing witnesses, and thus preventing the plaintiff's counsel from speaking a second time. The injustice which was thus done the defendant, in foregoing the right of calling witnesses whenever their evidence was not absolutely necessary for his case, was very great, but it was still more grievous in criminal cases. It constantly happened that rather than subject themselves to the injury which their case might sustain by a reply on the part of the plaintiff's counsel, the counsel for the defendant or prisoner suppressed evidence which they would otherwise be most anxious to produce; and he would maintain that there could be no evil in the practice of the law in this country greater than the suppression of evidence. But there was another grievance also. The defendant's counsel, in his statement, laid an outline of his case before the jury, and then called his witnesses. Those witnesses might establish his case, though not in precisely the form in which he had sketched it out, and he had then no means of redressing the error which had been committed, or of reconciling the apparent inconsistency. But it was not so with the plaintiff's counsel. Any variance between the plaintiff's evidence and the opening statement of counsel could be explained away in the speech in reply, and thus there was not an equal balance between the parties. Another reason for altering the present system was, that there was a variance in the practice of different courts. In the Nisi Prius Courts and the Courts of Assize the practice was such as he had described it; but in the Sessions' Courts it was not so. In them the practice was to allow the defendant's counsel the right to reply; and before Parliamentary Committees the answering counsel had also a power of summing up, which was not granted to him in the courts of law. When the matter had been formerly before the House, they corrected this evil in opposition 396 to the Attorney General of the day, and provided that the last word should be given to the prisoner, and the Bill went in that form to the House of Lords, when it was altered, and two speeches again given to the plaintiff's counsel. Another reason which he might urge in support of his Motion was, that the unequal system of which he complained did not exist in any of the courts on the Continent. Believing, therefore, that the system was unjust—that it was not only unjust but anomalous—as it was not universally adopted in this country—and that it was unknown upon the Continent, he thought he had made out a case at least for an inquiry, though he would not for the present apply to bring in a Bill on the subject. He begged leave to move, That it is expedient that inquiry be made whether the defendant's counsel in civil, and the prisoner's counsel in criminal cases, should be allowed to address the jury on the close of the evidence for the prisoner or defendant.

The Attorney General

said, if his hon. Friend had pressed his Motion as it appeared on the paper, he would certainly not, with the limited time which he had to consider the subject, have been prepared to assent to the bringing in of a Bill containing so important an alteration in the administration both of civil and criminal justice in this country. He was not, however, prepared to say, that it was not a case deserving consideration. No one could have practised long as an advocate, and not have felt, at times, the great disadvantage under which the counsel for a defendant laboured, in not being able to address the jury after the evidence was given. The speech of the defendant's counsel was necessarily made before the witnesses were examined; and his case, therefore, very frequently could not be presented with the same force and clearness as it might be after the witnesses were heard—and his counsel had not the opportunity of explaining any apparent discrepancy between the evidence of the witnesses and the opening statement; but while he felt these disadvantages of the present system, it was not easy to suggest an alteration that might not be productive of perhaps greater evil than that which they wished to remove. His hon. Friend had confined himself to the case of the defendant; but he seemed to forget that if the alterations which he proposed were adopted, the plaintiff would be in the position from which, the defendant was relieved. If the 397 defendant called no witness at present, the plaintiff could have no right to reply; and he would therefore have no opportunity of speaking after the witnesses were examined. The only fair course would seem to be, that the plaintiff should open his case and again speak after the evidence; and that the defendant should do the same, and the plaintiff reply. He admitted the practice at the Quarter Sessions' Courts and before the Committees of the House of Commons to be what the hon. Gentleman had stated. The practices in these instances would be for the plaintiff to open his case, and when his case had closed, then the counsel for the plaintiff addressed the jury. The defendant's counsel then stated his case, and if he called witnesses, the counsel for the defence again addressed the jury, and the plaintiff's counsel had a right to reply. There would thus be live speeches in every case in which the defendant went into evidence. That was the practice which formerly existed in the Courts in Westminster Hall; but he believed the inconvenience arising from it was found to be so great, that an alteration into the present system was introduced. Though the practice for which his hon. Friend contended, existed in Committees of that House, he believed his hon. Friend had been himself a Member of a Committee by which it was recommended that a different system should be introduced. That Committee recommended that counsel for the Bill should be first heard; that after he had closed his case, counsel against the Bill should be heard; and that if he then called witnesses, the counsel for the Bill should have a right to reply; but there should be only three speeches allowed. He felt the force of the difficulties which presented themselves to his hon. Friend; but still he could not say that he ever knew, in all his experience, the present system to be in the slightest degree detrimental to the ends of public justice. He believed that inconvenience might be caused under it in particular instances; but he did not think that its operation was generally injurious. If the proposition of his Friend were adopted, it was clear that the same indulgence should be extended to the prosecutor in criminal cases; and that at the close of his evidence the counsel for the prosecution should have a right to address the jury upon it. As his hon. Friend did not persist in his intention of applying for leave to bring in a Bill on the subject, he would not enter further 398 upon it, but would take the liberty of suggesting that the question might be referred to the Commissioners who were now employed in considering the criminal law of the land. He believed the names of those individuals were a sufficient guarantee to the Mouse that the subject would be properly dealt with by them, as there could be no Gentlemen found who were more experienced or more likely to come to a sound and practical decision. The reason he suggested the reference of the subject to them was, that they would be sure not only to report on any alteration that they should think advisable to have made in the system now in operation; but they would also enter into the details of the alteration, which it was very important should be known to the House before any ulterior steps were taken. It would be also desirable that the House should be put in possession of the opinions of those most able and practical men on such a subject. He begged, therefore, to throw out the suggestion to his hon. Friend; and he was sure, if the Motion were withdrawn, that the Government would be found willing to give its aid in bringing the question in a proper shape before the Commissioners.