§ Order for Committee read.
§ House in Committee; Mr. Bernal in the Chair.
§ Clause 1.
§ MR. BAINESsaid he was anxious, as Chairman of the Select Committee which had sat upon this subject, to make a short statement to the Committee relative to the extremely important objects which, he apprehended, would be carried into effect by this Bill. The Bill itself was for the improvement of the administration of Criminal Justice in this country, and it was one of those Bills for the purpose of effecting real and valuable improvements in the administration of the law for which the public were indebted to the present Lord Chief Justice of the Court of Queen's Bench. The Bill had come down from the House of Lords with the approbation, he believed, of all the law Lords in that House; and though there were some provisions, with regard to which one or two of the Judges felt a difficulty, yet he believed that all those who were most able to form an accurate judgment of its details, both in England and Ireland, were decidedly in favour of it. By the first Clause, powers of an extensive nature were given to the Court, in cases of felony or misdemeanour, to amend the indictments, when there was any variance between the indictment on which the prisoner was tried and the evidence, regard being had that the prisoner should not be prejudiced, or the merits of the case perverted, by such amending. This was analogous with the power which had been given to 1370 amend in civil cases, by an Act passed so long ago as 1832 (the 3rd and 4th of William IV., cap. 42). He believed that great advantage would result from this Clause, and he hoped that the Committee would think that the Courts might safely be intrusted with the power in this respect which the Bill proposed to give them. Another object which the Bill had in view was that of shortening and simplifying the form of criminal pleading. At present indictments might be made of very great length, entailing great expense in the framing of them, and great risk of variance in the proofs. The counts were multiplied to an incredible extent, there being sometimes as many as ten, fifteen, or even in some cases, twenty, in a simple case of homicide, ringing the changes upon every possible mode by which the death might be supposed to have been occasioned. These counts were frequently exceedingly contradictory in themselves; and, after all, it might happen that the right cause had escaped attention. What this Bill proposed, therefore, was, that instead of its being necessary, as it had been heretofore, to recite the precise means and manner by which the homicide had been committed, it would be sufficient—as was already done in an analogous manner in the case of larceny—to state, in cases of murder, that the party "did wilfully and feloniously kill and murder;" and, in cases of manslaughter, that he "did feloniously kill and slay." The third object of great importance had reference to strictly formal objections. With regard to several of these, it was provided that there should henceforth be no opportunity of taking such objections at all—objections, for instance, such as those to the formal conclusion of an indictment, leaving out the words "against the peace," &c, thus rendering these formal objections not available at the trial, and, consequently still less available in proceedings upon writs of error. Another object of the Bill was this, that, if it should turn out on the trial that the party had not been guilty of the entire offence, but of an attempt to commit it, then it would not be necessary, as at present, to prefer a new indictment, and go before the grand jury again; but the jury might convict the party of the attempt to commit the offence, and the Court should have power to sentence upon that finding, just as if the indictment had been for the attempt in the first instance. The Bill also con- 1371 tained provisions for rendering more easy and certain prosecutions for an offence which was increasing in frequency, perhaps in part owing to the facilities of late years provided for the recovery of small debts, he meant the crime of perjury. At present, the indictments were of most unwieldy length, and it was only the superior Courts which, by virtue of the statute of George II., had the power of ordering prosecutions for that offence. This Bill would enable the Judge of a County Court, and of the inferior Courts generally, if they had reason to suspect that perjury had been committed, to direct that a prosecucution should be instituted against the party, which might proceed to trial under the order of the Court. A simpler form of indictment also was given; but still it was not reduced so far as to prevent the defendant from having every information as to the real nature of the charge against him. There were several other objects of inferior importance contemplated by the Bill, with which he would not trouble the Committee. His belief was, after a good deal of experience in watching the administration of the criminal law, and some, also, in the actual administration of it, that it would have a very great tendency to improve the administration of criminal justice—that it would render it cheaper, more simple, and more certain in its results—that it would have the effect of doing away, in a great measure, with the technicalities which often enabled a prisoner to escape from justice—and that it would reduce the question to be tried to the real truth and justice of the case, to a mere finding upon the truth.
§ MR. STUART WORTLEYsaid, it was not his intention to offer any objection to the measure of the right hon. Gentleman. At the same time, he confessed he had some doubts as to its operation, and as to the mode in which the proposed alterations were to be made. He thought that with respect to the first clause, it would have been better if, instead of giving the large powers of discretionary amendment proposed by the Bill, the broader measure had been had recourse to of simplifying the form of indictments. This Bill, however, had been very much considered elsewhere, and his scruples had been overcome. Generally speaking, he must say that the objects of the other Clauses were unquestionable. He suggested, however, that the Clause with reference to the plea of "Guilty" should be 1372 struck out; and he thought it would be desirable, in cases where an indictment for felony had been found behind a man's back, or by a coroner's jury, that there should be means of obtaining bail without going before a Judge of a superior court. The present practice was very expensive; and he recommended that power should be given to one or two justices, as the case may be, to accept bail.
MR. ARMSTRONGsaid, he supported the Bill, but objected also to the clause with reference to the plea of "Guilty."
§ MR. NAPIERsaid, that the Bill was one of the greatest importance. He approved of the measure generally, but especially that part of it which gave power to the Judges to amend the indictment. Such a provision would conduce greatly to the sound administration of justice in respect to the Criminal Law of the country, and at the same time would not deprive any reasonable man of any of the privileges which formerly belonged to him of defending himself from the charge preferred against him. He thought that a further improvement might be made in the law by giving a simple form of appeal in certain cases, which appeal might be provided for in the present Bill without in the slightest degree trenching upon its general principle, or impairing its efficacy.
§ SIR JOHN PAKINGTONapproved of the principle of the measure, and considered that it would effect a very material and a very wholesome change in the administration of the Criminal Law. He had over and over again seen the ends of justice defeated from the want of such a power of amending indictments as would be given to the Courts by this Clause. He must at the same time express his regret that this Bill did not extend the summary jurisdiction of the magistrates to trifling cases of larceny, such as the stealing of coals or fruit, instead of having parties committed for trial and incarcerated for several months, as often occurred, before being brought to trial.
§ MR. AGLIONBYconsidered this measure would have a very beneficial operation. It had been agreed to by the other House of Parliament, and had been referred to a Select Committee of that House, including many hon. Members practically acquainted with the working of the law, by whom its provisions had been very carefully considered. He approved of the Clause, because he believed that it would prevent the ends of justice from 1373 being defeated, and would lessen the chances of a guilty man escaping by a mere quibble from the punishment rightly due to his offence. He objected, however, to the Bill being discussed in its entirety whilst they were only yet upon the first clause.
§ MR. WHITESIDEwished to express his approval of the Bill as a thorough and comprehensive measure; and he trusted that it might form a precedent for the introduction of further reforms into other departments of the law, which were required by the state of the law, by the opinion of the public, and by the spirit of the age. What must the House think of an English Judge deliberately telling a jury that when a person was charged with stealing a duck, and it turned out to be a drake, the offender was to be acquitted; or that a man charged with stealing a pair of stockings was to be acquitted because the stockings proved to be odd ones? He could cite numerous cases of a similar nature where justice had been defeated, in consequence of the most absurd objections being raised to the particular form of the indictment. He considered that the protection of the prisoner in our Courts of Law did not consist in quibbles like these. Prisoners in this country had the benefit of trial by jury: they were furnished with copies of the depositions, and they might be defended by counsel; but what constituted the broad distinction between the law of this country and that of all Continental States was, that they had no law of evidence, while we had a strict law of evidence. In Continental Courts the witnesses stated whatever they thought, felt, guessed, or conjectured, respecting the past habits and life of the prisoner. In this country not only was a prisoner tried by an upright Judge and an impartial jury, but he had the additional safeguard of a strict law of evidence. He (Mr. Whiteside) supported this Bill, because it struck at the root of abuses which had long disgraced the administration of justice.
§ Clause agreed to; as were also Clauses 2 to 27 inclusive.
§ On Clause 28, which provided that upon the arraignment of any person for any felony or misdemeanour whatsoever, such person should not be called upon to plead "Guilty" or "Not Guilty," but should, instead, be asked "whether he wished to plead guilty, or any other plea, or to be tried;" and that if, on being so called upon, such person should say that he 1374 wished to he tried, or should refuse to answer, the proper officer of the court should enter a plea of "Not Guilty" on behalf of such person.
§ MR. NAPIERsaid, that a person might say that he neither wished to plead guilty, nor any other plea, nor to be tried, and the prisoner would not then refuse to answer. He thought this Clause would tend to embarrass the administration of justice, and he would therefore move its rejection.
§ MR. HATCHELLsaid, that he had received some communications from persons of high authority in Ireland, representing that the novel mode of arraigning persons contained in this Clause, would most probably be found very embarrassing to the Courts of justice, and recommending that it should not be pressed—a recommendation in which he fully concurred.
§ MR. GRANGERthought that if any alteration whatever took place in our present system, it should be by asking the prisoner if he would plead guilty or not guilty, or if he wished to be tried at all. But he objected even to that alteration, because, if he said that he wished to be tried, it would prejudice him in the minds of the jury that he had not pleaded not guilty. If prisoners really had tender consciences, they would plead guilty; and if they did not, he thought their consciences could not be so tender that the Committee need take particular care of them.
§ MR. BAINESsaid, that he was not responsible for the Clause, which had come down from the other House of Parliament: he had no objection whatever to strike it out.
The ATTORNEY GENERALsaid, he would not insist upon retaining this clause, if the general opinion of the Committee was against it. At the same time, he thought it was desirable that some mode should be devised to prevent the necessity of a man's saying "Not Guilty," when he was conscious of his own guilt. It was, no doubt, the right of every man accused of a criminal offence in this country to insist upon being tried, because he was not amenable to the consequences of guilt until the offence was proved; but it seemed rather hard that, while they conceded to him this right, they put him in a position of being obliged to tell a falsehood in order that he might obtain the trial which was his right.
§ Clause withdrawn. Clause 29 agreed to.
§ MR. BAINESsaid, that his right hon. 1375 and learned Friend the Recorder of London had proposed to add to the Bill a clause rendering all persons convicted of an indictable offence liable to be punished with hard labour, at the discretion of the Court. He thought that so general a Clause was liable to some objections, and he therefore proposed to add to the Bill the following Clause, to which his right hon. and learned Friend had assented:—
Whenever any person shall be convicted of any one of the offences following, as an indictable misdemeanour, that is to say, any cheat or fraud punishable at common law, any conspiracy to cheat or defraud, or to extort money or goods, or falsely to accuse of any crime, or to obstruct, prevent, pervert, or defeat the course of public justice; any escape or rescue from lawful custody on a criminal charge; any public and indecent exposure of the person, any indecent assault, any public selling or exposing for public sale or to public view of any obscene book, print, picture, or other indecent exhibition, it shall be lawful for the Court to sentence the offender to be imprisoned for any term now warranted by law, and also to be kept to hard labour during the whole or any part of such term of imprisonment.
§ SIR JOHN PAKINGTONhoped that the right hon. and learned Gentleman would allow common assaults to be rendered liable to hard labour, in addition to the offences specified in this Clause. In cases where parties were indicted for an assault with intent to commit a rape, or for assaulting a police constable in the discharge of his duty, juries sometimes, even though the evidence clearly showed the commision of the major offence, chose only to convict the prisoner of the minor one of a common assault. He thought that, in such cases, the Court should have a discretion to order the prisoner to be subjected to hard labour.
§ MR. BAINESsaid, that a great number of assaults were already, under various statutes, punishable with hard labour. Common assaults were, however, a large class, and included many cases in which, no doubt, it would be desirable to give the power of inflicting hard labour, while there were others, in which, although a legal, no moral crime had been committed, in which it would be undesirable to do so.
§ MR. HENLEYsaid, he agreed with the hon. Baronet (Sir J. Pakington) in his view of the proposed Clause. There was this anomaly in our law at present—that, in default of payment of a fine for an assault, a magistrate might send a prisoner to the House of Correction; but if he 1376 thought the offence committed was so serious that he should be sent to the Sessions, the same quality of imprisonment could not be inflicted by them, supposing that he were convicted.
§ MR. WHITESIDEsaid, that if the jury had acquitted a prisoner of the more serious offence charged, he should be considered innocent. He could not conceive any thing more objectionable in principle than to give to the Judge who tried him the power of inflicting a severer punishment, because he had been acquitted of a more serious offence.
§ SIR JOHN PAKINGTONsaid, as the simplest way of raising the question, he would move the omission of the word "indecent" before assault in the Clause proposed by the right hon. and learned Gentleman.
§ MR. FRESHFIELDthought they should consider those whom it was proposed to exclude from the punishment of hard labour, as well as those whom it was proposed to include. There were many assaults in which there would be a failure of justice if the prisoner was not punishable with hard labour.
§ SIR JOHN PAKINGTONsaid, that with reference to the observations of the hon. and learned Member for Enniskillen (Mr. Whiteside), although a man might be acquitted of the intent to commit a rape, still the assault might be accompanied with such circumstances of violence as might render it perfectly just and desirable that the Court should impose the punishment of hard labour. In the same way, in the case of an assault upon a police constable in exercise of his duty, there might be a failure to show that the prisoner knew that the constable was acting in the discharge of his duty; and therefore the indictment for the more serious offence might fail, although the circumstances of the case rendered it desirable that it should be punished with bard labour.
The ATTORNEY GENERALwould admit that, where a man was acquitted of the more serious charge, but convicted on a minor one, it would be unjust to visit him with the same penalty as if he had been found guilty of the former offence. Still there were many cases which came within the technical description of a common assault, which were of so aggravated a character that it was desirable that they should be punished with hard labour in addition to imprisonment. On the other hand, there were many cases which were 1377 common assaults in the eye of the law, but at the application of hard labour to which one's feelings revolted. Looking, too, at the degrees of competence of the tribunals charged with the administration of justice, there might be an indisposition to confide to them the power of determining in what cases hard labour should be inflicted. He had a great objection to leave a discretionary power in all cases of assault. He would, therefore, suggest, as a middle course, that when a man was indicted for a felony of such a nature that he might, on the same indictment, and without a separate count for a common assault, be convicted of the offence, that it should then be competent to the Court to add hard labour to the imprisonment to which they might sentence the prisoner. He would allow the Courts a similar discretion in cases where the common assault amounted to a personal injury. But, looking at the various character of common assaults, he should hesitate to invest the Courts with unbounded discretion.
§ MR. HENLEYwould suggest to the hon. and learned Attorney General, that he should also take into consideration that class of assaults with which, on account of their severity, the magistrates refused to deal at Petty Sessions.
§ MR. NAPIERwas not disposed to increase the discretionary power of the Court in awarding punishment, for, by so doing, they would destroy the moral certainty of the law, which it was far more important to preserve, than to endeavour to meet extreme and particular cases.
The ATTORNEY GENERALsaid, that he would move the addition, after the words "any indecent assault," of the words, "any assault whereby personal injury has been inflicted."
§ SIR JOHN PAKINGTONmust express his dissatisfaction at the proposition of the Attorney General, which, he thought, fell short both of the requirements of the case, and of what the hon. and learned Gentleman, had himself indicated in his former observations.
§ SIR JOHN DUCKWORTHthought there would be no danger in giving the Courts discretion to punish with hard labour, in cases where the prisoners had escaped conviction for a more serious offence, merely because of some technical defect in the proof.
§ MR. AGLIONBYsaid, he objected to the vagueness of the words "personal injury," by which the hon. and learned At- 1378 torney General proposed to define the assaults to be subjected to the punishment of hard labour. He should prefer the words "serious injury."
§ MR. WHITESIDEshould oppose the Amendment of the hon. Baronet (Sir J. Pakington). He contended that as it was admitted there were cases of common assault in which it would be undesirable and unjust to inflict the punishment of hard labour, they ought, in accordance with the principles of our law, to regard rather the protection of the innocent, than the punishment of the guilty. He objected to confiding more than was absolutely necessary to the discretion of the Courts; the perfection of criminal law would be that—if it were possible—it should declare the exact punishment which each offence deserved.
The ATTORNEY GENERALsaid, that it would be admitted, he thought, that assaults, where serious bodily injury was inflicted, should be punished more severely than other common assaults. He would alter the words in his Amendment, descriptive of the assault, to "serious bodily injury," in order to meet the objection which had been taken to the words he had proposed.
§ MR. BAINEShad no objection to the introduction of words so as to provide for cases of indecent assault, and cases of grievous bodily harm.
§ SIR JOHN PAKINGTONsaid, he would withdraw his Amendment.
§ Clause, as amended, agreed to.
§ MR. FRESHFIELD, in the absence of his right hon. and learned Friend (Mr. Stuart Wortley), begged to bring forward the clause of which his right hon. and learned Friend had given notice. The object of the clause was to provide for cases of indecent assault upon children under the age of twelve years, with the consent of the child. The following was the Clause:—
And for the adequate punishment of persons indecently abusing the persons of young girls, be it enacted, That, whenever any person shall be tried for an assault on a girl, being under the age of twelve years, the defendant shall not be acquitted upon the ground of such girl having consented to such alleged assault, if on such trial it shall appear that such defendant has done any act to such girl which, but for such consent on the part of such girl, would amount in law to an assault; and upon being convicted of any such assault, the defendant shall be liable to be imprisoned, with or without hard labour, in the common gaol or House of Correction for any term not exceeding three years.
§ Clause agreed to; Preamble agreed to.
§ House resumed.
§ Bill reported as amended.