HC Deb 10 March 1856 vol 140 cc2194-200

Order for Committee read.

House in Committee.

Clause 1,

MR. WHITE SIDE

said, that this Bill appeared to originate from a case which had occurred at Stafford, where the prisoner was anxious to have his trial in London. It had been stated that the Bill was a remedy for that particular grievance, but he found upon looking at the Bill that it referred to cases of treason, felony, or misdemeanor. The practical effect, however, would be that a man put upon his trial in Cornwall or Wales might, without his consent, be removed to London for trial, contrary to the principle that a prisoner should be tried in the place where he was known. The same principle had been argued in a Committee in reference to cases of intimidation in Ireland, but was not then supported by the Whig Members of that Committee. He wanted to know if the House intended to give the Crown the power in political or treason cases to remove a trial from the county where it should be tried, and by an order of a Judge at chambers to bring it up to London? The Bill proposed to pay costs, but that was a new principle. In the case of Mr. Smith O'Brien, no doubt the Attorney-General would have been glad to have tried it in Dublin; but if the power of change was to be given, he thought that it should be vested in the Court, and not in a single Judge at chambers. If the Government would consent to accept as an amendment in cases of treason, "if it should be made apparent to the Court in term time that a fair and impartial trial could not be had in the county where the venue was laid, then, with the consent of the prisoner, it should be lawful for the Court to remove the trial to the Central Criminal Court," he would not oppose the measure, although he objected to legislation upon particular cases as objectionable and mischievous.

THE ATTORNEY GENERAL

said, he could not consent to the alteration proposed. The hon. and learned Gentleman appeared to suppose that the power of changing the venue was to be at the suggestion of the Crown. That was not the case. It was to be given to the Court of Queen's Bench in term time, or to a Judge of that Court during the vacation. An indictment could at present be removed by certiorari into the Queen's Bench, and the Court had the power of transferring the trial to some other county if it should appear for the advantage of public justice. The Court of Queen's Bench the other day had held, in Palmer's case, that it had the power to send the case for trial in some other county, or, if not, to try the case at Westminster. In that particular case the prisoner applied to have the indictment removed, upon the ground that the state of public feeling in Stafford precluded him from hoping for an impartial trial. The Crown entertained a similar opinion, and therefore assented to the removal by certiorari. Thus the case must be sent to another county, or be tried at Westminster, and in either case there would be considerable expense and inconvenience. It appeared most desirable that the Court of Queen's Bench should have the power of sending that and similar cases for trial at the Central Criminal Court, where three Judges presided, and where it could not be denied that criminal justice was most admirably administered. Therefore it was thought most expedient that as the Court of Queen's Bench had the power to send cases for trial to any county in the Kingdom, it should also have the power to send such cases to be tried at the Central Criminal Court. Hence the present Bill. There was no desire to give either the Crown or the Court of Queen's Bench any power of an undue description. The Judges of the land would act under a full sense of their responsibility to public opinion. He was sorry to hear the hon. and learned Gentleman intimate that Judges would do at chambers what they would not do in open Court. For the Judges of England he could venture to say that Parliament need not fear putting power into their hands, as they might be certain that it would be exercised with a conscientious sense of duty. It was true the prisoner would not be present at the Judges' chambers, but he would have due notice of the application; he would also have the assurance that neither a Judge at chambers nor the Court itself would exercise the power proposed to be given by this Bill if it should be thought inexpedient to do so.

MR. HENLEY

said, this was one of those instances in which the greatest inconvenience arose from making a general law to meet a particular case. It was not likely that the Judges of England or of Ireland would do wrong; but it was not wise or prudent to break through those rules and safeguards which the people valued as protections against the possibility of injustice. He could not conceive that a greater wrong could be inflicted upon a prisoner than to have his trial removed, against his own will, from the place where he was known, and where he also knew those by whom he would be tried. All the opportunity of challenging the jury would in that case be lost. He was not aware that his hon. and learned Friend (Mr. Whiteside) had intended to propose an Amendment, but certainly his (Mr. Henley's) objection to the Bill would be very much less if the word treason were left out. He thought the Amendment of his hon. and learned Friend was a sound one; and he should not in other respects object to the Bill. Such cases as these occurred but rarely; and the question was whether, in legislating upon them as exceptional cases, they might not be running the risk of doing more mischief than good, and it was against that danger that he was anxious to guard himself.

MR. BAINES

said, his right hon. Friend the Member for Oxfordshire had given expression to a great fallacy in stating that this was a Bill to meet a particular case. The fact was, it was a measure to cure a defect in the law, which defect had been discovered by the occurrence of this particular case. The Bill was intended to afford a remedy not only in this case, but in all other cases. Neither was the objection that the Bill would confer a new power on the Court of Queen's Bench well founded. By the law, if a person were charged with committing a felony or a misdemeanour the Court of Queen's Bench might order the indictment to be removed by certiorari into that Court, and then the Court had the power to send the case to be tried in any county whatever; but they had no power to send it for trial at the Central Criminal Court in Middlesex. Now that was felt to be a great defect in the law, and the object of the present Bill was to give the Court that power. It would enable the Court to send a prisoner to be tried at the Central Criminal Court just as it now had the power of removing a trial from Cornwall to Norfolk. Surely it was a great defect of the law that the very Court which was best constituted to conduct such trials should be the only Court disqualified to conduct them. The hon. and learned Gentleman (Mr. Whiteside) had said that the removal of the trial should not be made without the consent of the prisoner, but the consent of the prisoner was not now required. And why should that consent be necessary? Suppose, in the case referred to by the hon. and learned Gentleman, the Crown had considered there was no chance of a fair trial in the county in which the offence had been committed, and had sought to remove it to any other county, if the consent of the prisoner had been required, what would have been the consequence? The prisoner, wishing to be tried in the locality where his adherents dwelt, might have refused his consent, and the result would have been that cither he would have been tried by a partial jury, or there would have been no trial at all.

MR. STUART WORTLEY

said, he did not apprehend that the power of the Crown would be extended by this measure, or that, in principle any additional power would be given to the Court of Queen's Bench. The simple object of the measure was to put the Central Criminal Court on exactly the same footing as every Assize Court in the Kingdom, but with this advantage to the prisoner, that, whereas in every other Court he would be tried by one Judge, in the Central Criminal Court he would be tried by three Judges. There would also be this additional advantage, that the prisoner would have the opportunity afforded him of obtaining the assistance of the ablest counsel. It had been said that when an indictment was removed into the Court of Queen's Bench it was tried on the civil side, which gave the prisoner certain advantages, such as the power of moving for a new trial or of reserving points. Now, under the clause they were then discussing, those advantages would not be given, because the clause merely enabled the Court of Queen's Bench to send the party to be tried to the Central Criminal Court, instead of to any other Court in the Kingdom. The Court of Queen's Bench could transfer a case to any inferior Court of criminal jurisdiction throughout the country, but they could not send it to the Central Criminal Court, which was the chief tribunal of criminal jurisdiction; and it was to remedy this defect and anomaly that the present Bill was introduced. Possibly some conditions upon the exercise of this power might with advantage be introduced, but he thought they would be casting a slur upon the administration of justice in the Central Criminal Court if they made that the only exception to the rule—the only place to which a case might not be transferred by the Court of Queen's Bench.

MR. WHITESIDE

said, he entirely differed from the argument made use of by the right hon. and learned Gentleman who had last addressed them, that when there was a disturbance throughout the country the administration of the law should be transferred from one place to another. On the contrary, he had always understood that, although such disturb- ances might be rife, the law of England still held on its steady and uniform course. He held that all cases of high treason should be tried where the offence had been committed. The instances in which the Court of Queen's Bench had exercised the power at present attributed to them of changing the venue were very rare indeed, and he doubted much whether, if they really possed that power, they ought to be permitted to exercise it. Hon. and learned Gentlemen said all they wanted was to give this power to the Court of Queen's Bench in cases where a fair and impartial trial could not be had in the county. Why, then, did they not say so in the Bill? He was as much satisfied as any man that there could be no fair trial at Stafford, but he was not satisfied that the Court of Queen's Bench, or a Judge in chambers, should exercise that power, when, in the words of the Bill, it seemed to them "expedient to the ends of justice" to do so. He disliked that word "expediency," and objected to these vague words, thinking, moreover, that cases of high treason as well as political offences should be omitted from the Bill.

MR. HENLEY

said, the Bill deprived the prisoner of the advantage he now enjoyed in the record coming back again to the Queen's Bench. Then, again, although the prisoner would certainly have two or three Judges at the Old Bailey, a still more important consideration was the jury, and he believed ninety-nine men out of every hundred, if asked the question, would rather stand before a county than an Old Bailey jury.

THE ATTORNEY GENERAL

said, he thought cases of treason might be omitted from the Bill, but not so with other political offences. There were precedents for the removal of those cases from one county to another, and he did not see why they should not also be removed to the Central Criminal Court. As to introducing into the Bill provisions which would give the prisoner the same advantages as if the indictment were removed by certiorari, and tried on the civil side of the Court of Queen's Bench, he thought those advantages were considerably overestimated. They consisted merely in the right of moving for a new trial, and in case of misdemeanour you might have a special jury, but in case of felony no such claim was allowed. He thought it would be very objectionable to make the consent of the prisoner or defendant necessary before a case could be removed. The person indicted might have such influence in a particular district as to render a fair trial impossible, and, of course, the accused in such a case would resist any removal from that district. To object to the phrase, "expedient to the ends of justice," was, he thought, quibbling upon words. Was it likely that any such power as that would be exercised by the Judges except on very good grounds? As to the objection to the exercise of the power by a Judge in chambers, circumstances might arise which would make it of the greatest importance that a trial should be removed to the central Criminal Court when the Court of Queen's Bench was not sitting, and therefore he hoped the opposition to that provision would not be persisted in.

MR. WHITESIDE

said, he would not press his Amendment.

Clause agreed to.

The remaining clauses were then agreed to.

House resumed.