HC Deb 09 May 1856 vol 142 cc277-87

MR. KENNEDY rose to call the attention of the House to certain circumstances connected with the trial and conviction of Thomas Dunne, under sentence of execution for the 16th instant, for inciting James Murphy and Patrick Bannon to murder Miss Charlotte Hinds, and to the refusal of the Attorney General for Ireland to grant his fiat for a writ of error. The adjournment of the House for the holidays imposed upon him the necessity of bringing this case forward on the present occasion. He had had difficulties to contend with, and which had been greatly increased by certain proceedings which had taken place in the other House of Parliament on this subject. He thought the best course he could take to make the House acquainted with the facts would be to read the affidavit made by the attorney for the prisoner. He stated that Thomas Dunne was indicted for inciting James Murphy and Patrick Bannon to murder Miss Charlotte Hinds. The prisoner was put to his challenges, and, having challenged twenty peremptorily, the jury was ultimately completed. One of the jury complained of being ill, and he withdrew, and another juryman, named William Nixon, was added to the panel. The attorney for the prisoner stated that, although, it was known that Nixon had expressed opinions hostile to the prisoner, yet, as the prisoner had already exhausted his twenty challenges, he was compelled to submit to Nixon being sworn on the jury. What was contended on behalf of the prisoner was this—that a jury having been sworn to try the prisoner, and one of the jurymen having been taken ill and retired, the jury itself was altogether discharged; and that, therefore, when the Attorney General called Nixon to take the place of the juryman who had so retired, he in effect called a new jury, which gave to the prisoner the same right of peremptory challenge as he had when the first jury was called. That was the main ground on which the objection of the prisoner rested. It was contended that the Attorney General ought to have afforded the prisoner the right of challenge de novo. The affidavit of the prisoner's attorney showed that this was not a mere empty objection, for the prisoner would certainly have challenged one man who was on the jury. Well, the trial having taken place, and a conviction having been obtained, the prisoner applied to the Attorney General for Ireland for his fiat for a writ of error, but which that right hon. and learned Gentleman refused to grant. There could be no doubt that in this instance the right hon. and learned Gentleman had committed an error in judgment, which the ablest were occasionally liable to do. There were authorities to show that the prisoner was entitled on this occasion to a writ of error. At the assizes at Tralee, in 1830, a case occurred in which a juryman was discharged, and, on another juryman being called, it was decided by Baron Pennefather that the prisoner had a right of challenge just as if no jury had been sworn. He had endeavoured to discharge his duty by bringing the facts before the House, and the responsibility of acting would now rest with every Member equally with himself.


said, that although no good could spring from a discussion not terminating in any Motion, the hon. and learned Gentleman was entitled to every consideration, for the question was one of life or death. If the House should overrule the decision at which he (Mr. J. D. FitzGerald) had arrived, no one would rejoice more than he, because it would relieve him from a weight of very painful responsibility. He trusted that he understood the duties he had to perform, not only as regarded the unhappy convict, but as regarded the public, whom, in these matters, the Attorney General in some degree represented; and, if he had not the moral courage to perform those duties to the best of his skill and judgment with fearlessness and firmness, he should be unfit to fill the office which the Queen had been pleased to confer upon him. He did not complain of the course which had been pursued by the hon. and learned Gentleman, but there was clearly great misapprehension upon the subject. There appeared to be an impression that the prisoner had been unfairly treated, by not being afforded the opportunity of challenging peremptorily the jury. Whether there was or was not any technical irregularity, he (Mr. FitzGerald) would assert most confidently that the trial of the prisoner was most impartial, and he was at a loss to discover a single point upon which it could be alleged that an injustice had been done to the prisoner. He was not aware whether the proceedings in criminal trials in this country were in every respect similar to those in Ireland, but there they were of a most solemn and impressive nature, and had been observed most carefully upon the occasion of the late trial. The complaint was, that the prisoner had not been allowed his peremptory challenge. The course of criminal trials was this—when a jury panel had been drawn, it was the duty of the Clerk of the Crown solemnly to apprise the prisoner that he had a right peremptorily to challenge twenty jurors; that was to say, to object to any twenty of them without assigning any reason for so doing, by merely saying the word "challenge"—and also that he had an unlimited right of challenge "for cause." That warning was given to the prisoner. It was also the duty of the Clerk of the Crown, at the commencement of the trial, to apprise the prisoner that then was the time to challenge—that warning also was given to the prisoner. There was a further protection offered him. As a prisoner, from his humble circumstances, was often unable to have the assistance and advice of counsel, the following precaution was provided for him by the Crown—and this was done in the present case—when a juror was sworn he was required to hold the Testament in his hand, the Clerk of the Crown saying these words—"Juror, look upon the prisoner; prisoner, look upon the juror," the object being to give the prisoner the opportunity of challenging. In this particular case every one of these formalities was gone through, and a jury of twelve was sworn, the prisoner having exercised his right to challenge peremptorily, and six persons having been set aside upon the ground of their coming from the neighbourhood of the place where the crime was committed. In addition to this, he (Mr. FitzGerald) took care himself to lay down certain rules for the guidance of the Crown solicitor, inasmuch as the nature of the trial was peculiar, and he was desirous that nothing irregular should be done. It was the right of the Crown to "set aside" jurors; and though that right had been sometimes abused by the Crown for the purpose of "packing" a jury, he hoped that it could never be said of him that he used the power for any such unworthy purpose. He now held in his hand a copy of the instructions which he had given to the Crown solicitor:—1st. Remove all publicans and persons in the spirit trade. 2nd. All whom you have good reason to believe to be members of the Riband Society or other illegal societies. 3rd. All persons from the immediate vicinity of the scene of the offence. 4th. No juror to be set aside by reason of his religion. In addition to this, if the prisoner's counsel objected to a juror, the Crown did not put him to his challenge, but exercised its right in the prisoner's favour, and set him aside. There was another provision made for the prisoner; inasmuch as it was a Special Commission, and the prisoner was poor, he had the whole Bar to select his counsel from, and the Crown undertook to pay the expense. The prisoner named to represent him a gentleman of undoubted skill, of high character, and great experience, and with such assistance for the prisoner, the trial proceeded. After the jury had been sworn and the counsel for the Crown opened the case, but before any witnesses had been examined, or other steps taken, it was announced in court that one of the jurors was so ill that attendance upon what threatened to be a protracted trial might endanger his life. Accordingly, the Chief Justice of the Common Pleas asked him (Mr. FitzGerald) what course ought to be adopted. The ordinary course was to swear a medical man to examine the juror, and if it were found that he was too ill to proceed, then to discharge him. That course was adopted, and upon the certificate of the medical man the juror was discharged. Under those circumstances, although the trial had not commenced, although no witnesses had been examined, the jury was formally discharged, and another jury was sworn. The new jury was sworn, consisting of a new juror and the original eleven, every one of whom was re-sworn, with the same forms and solemnities as had been originally observed, except that the formal warning was not given to the prisoner by the Clerk of the Crown, that he was at liberty peremptorily to challenge the jury; but the counsel and attorney of the prisoner were by, and they might have challenged. When the jury was called over, and the Clerk of the Crown came to the new juryman, he asked the prisoner if he had any objection to this new man; and, no objection being made, he was sworn. The trial proceeded, no objection was taken—no suggestion was made, and he (Mr. J. D. FitzGerald) observed that in the statement which had been drawn up there was no allegation that the prisoner's counsel was not aware that he had the right to challenge. The trial occupied two days, and after a very long speech from the prisoner's counsel, and much evidence on his behalf, the jury brought in a verdict of guilty. Hon. Gentlemen were aware that, after the jury had returned their verdict, the prisoner had another opportunity of urging any reason why the judgment of the Court should not follow. The Clerk of the Crown went through the solemn form of calling the prisoner forward, of informing him that he had been found guilty, and asking him if he had anything to urge why the sentence of the law should not be pronounced. Nothing was said—no suggestion of irregularity or unfairness was made either by the prisoner or his counsel, and the sentence of the law was pronounced. It was not until some weeks after that anything further was heard upon the subject, when an application was made to the learned Judges who tried the case to grant their certificate, for the purpose of taking the case before the Court of Criminal Appeal. The learned Judges refused their certificate. Application was then made to him (Mr. J. D. FitzGerald) to grant his fiat for a writ of error. It was undoubted law that a writ of error could not issue in Crown cases without the fiat of the Attorney General, but it was not a thing to be granted or refused at the mere pleasure or caprice of the Attorney General; and in withholding it in this case he had acted on his deliberate judgment. He was in London when he received the papers; but, entertaining a strong opinion on the case, he proceeded to Dublin for the purpose of hearing the counsel of the prisoner—and, on Monday last, every ground was urged upon him in support of the prisoner's case. In the course of the discussion, he put this question to the prisoner's counsel, "Did you at the trial observe what you now alleged to be a defect, or was it something which afterwards occurred to you?" Counsel answered— "I did observe it at the trial; got two persons to take a note of what occurred; and I did not take the objection at the trial, because I intended to take it afterwards." That was to say, he took his chance of a verdict, and when he found it was adverse to him, he endeavoured to take advantage of a technical objection. Having heard all counsel had to urge on the prisoner's behalf, he (Mr. J. D. FitzGerald) entertained not the slightest shadow of a doubt that there was no question to be raised or discussed on a writ of error, and he therefore felt it to be his duty to refuse his fiat. The objection, if there was any ground for it, ought to have been taken at the trial, and he felt it would have been an improper exercise of the discretion vested in him if he had allowed his fiat to have gone forth. The only effect of it would have been to have prolonged the unhappy position of the convict, without giving him the slightest ray of hope; but if there had been the smallest ground for acceding to the application, he would have been glad to have done so. The application to him even rested on error in the record; but on looking to the record, a copy of which he had now before him, the allegation of fact was entirely negatived, and a writ of error would have been a most idle and mischievous proceeding. He had acted to the best of his judgment, and with the mental intrepidity which became him; but if the appeal to the House of the hon. and learned Gentleman should have the effect of reversing the decision at which he (Mr. J. D. FitzGerald) had arrived, no Member would more rejoice than himself.


said, he should not do justice to his hon. and learned Friend the Attorney General for Ireland if he did not say that he had not the slightest shade of doubt that his hon. and learned Friend had exercised a sound discretion in this matter. It was certain that a writ of error could not issue without the fiat of the Attorney General. This he stated not simply on his own judgment or opinion, but on the decision of the Court of Queen's Bench. In a case which had recently come before the Court of Queen's Bench in this country, where the Attorney General had refused his fiat, application was made to the Court to issue its mandamus to compel the Attorney General to give his fiat. Having satisfied himself that this was not an objection arising on the record, he had looked to see whether, in his opinion, justice had been substantially done. If justice had not been done he would have granted his fiat, that the error might be rectified, but he was satisfied that substantial justice had been done to the prisoner, and refused his fiat. The Court held that the matter was entirely within the discretion of the Attorney General, and they could not control it; but they added that they entirely concurred in thinking that the Attorney General was right in refusing his fiat where he was satisfied that justice had been done, and when the error was a technical one, of which advantage might have been but had not been taken at the trial. It was not the fact that the right of challenging the eleven jurymen before the twelfth was sworn had been withheld from the prisoner; he did not claim, and did not exercise it. Even if the officer of the Court had a right to challenge he did not think that would be a ground upon which error could be assigned. It was part of the law, which every one was presumed to know. But in this case the prisoner and his counsel were informed as to their right; instead of exercising it they took their chance of a verdict; and after the prisoner had been convicted they applied to his hon. and learned Friend for his fiat upon this purely technical point. His hon. and learned Friend, however, acted upon the sound principles laid down by the Court of Queen's Bench in the Queen v. Newton, and thinking that substantial justice had been done, he had the moral courage to take on himself the responsibility of refusing his fiat. This question had been brought forward in another place, and all the luminaries of the law—.Lord Lyndhurst, Lord Campbell, Lord St. Leonards, Lord Brougham, and the Lord Chancellor—expressed the opinion that his hon. and learned Friend had acted legally and constitutionally. After the statement that had been made that evening, he was sure that no one would believe that perfect justice had not been done to the prisoner.


on the whole, thought it would have been better if the Crown had informed the prisoner that he had a right to challenge the eleven men again before the twelfth was sworn. He was by no means sure that it was the duty of the counsel for the prisoner to point out any error in the proceedings instead of taking advantage of it. When he defended Smith O'Brien he took the objection—he could now confess that it was a bad one—that the prisoner had not been furnished with a list of the witnesses for the prosecution. It was a question whether it would not be better to allow a doubtful point to be argued before the Court of Criminal Appeal upon a certificate of counsel, instead of leaving it, as at present, to the option of the Judges. He doubted, too, whether it was in accordance with our beautiful system of law that the prosecutor should have power to refuse his fiat for a writ of error. He did not think, however, that the hon. and learned Gentleman had improperly exercised his discretion in this instance.


agreed with the hon. and learned Gentleman who spoke last as to the advisability of having given the prisoner an intimation that he had a right of challenge, but he considered that the Attorney General for Ireland was justified in withholding the fiat in this instance.


read a passage from one of the affidavits to show that the prisoner would have struck off one of the eleven jurymen if he had the opportunity. Ours was a law of usages and customs, and if the right of challenge were a component part of it, and not simply an idle and unmeaning form the prayer of the petitioner ought to be granted. There was no precedent to justify such a departure from the ordinary practice as had been permitted in the present case. There was the high authority of Chief Justice Holt for the doctrine that the writ of error was a matter of right, not grace, and that it did not depend on the discretion of the Attorney General. The sooner the House arrived at a clear understanding on the subject and decided that when there had been erroneous judgment the case should be reviewed by a competent authority, the better would it be for the administration of justice. The people would have greater confidence in the tribunals of the country, and the Judges would be more careful in dealing with the lives and liberties of their fellow-subjects. As the present was a new case, the safest course would be to give it a liberal construction, and there was an additional inducement to do so in the reflection that, whatever injury might follow from rejecting the petition, none could possibly result from granting it.


gave his hon. and learned Friend (Mr. J. D. FitzGerald) every credit for having acted with boldness and manfully doing his duty on the present occasion. At the same time he was bound to express a hope that the refusal to allow the writ of error would not be drawn into a precedent; the issuing the writ did not imply a reversal of the original sentence; it simply afforded the opportunity of examining whether the proceedings in the Court below had been strictly regular. The real question to be considered was, had the prisoner the right. No matter how technical the objection, no matter what the impression as to his guilt—had they a right to take away his life, except according to law? Now, in the present case, the prisoner alleged that he had not been tried according to law; while a gentleman whom he (Mr. Butt) might say ranked amongst the highest of the common law Bar in Ireland—he meant Mr. Fitzgibbon—deliberately set his hand to the statement that in the present proceedings there was "error"—and that that error was sufficient to vitiate the proceedings. There was no instance on record of an Attorney General refusing his fiat after such a declaration, had been made by so eminent a counsel. And there was the less reason why the fiat should have been withheld in the present case, inasmuch as the error complained of was that of the Attorney General himself, who was bound to give the prisoner every right the law permitted. The Attorney General had, with the best intentions, asserted a prerogative that was objectionable in principle, and had already proved mischievous in practice; for it was no light matter that the extreme sentence should be carried into effect on any man in regard to whom there was a reasonable cause to doubt whether he had had such a trial as the laws of his country prescribed.


considered that no injustice had been done by the refusal of his hon. Friend the Attorney General for Ireland to give way on a mere technical point. There might have been considerable excitement in Ireland on the subject, but it must have arisen from an entire misapprehension of the facts. The hon. and learned Members for Enniskillen and Dublin had been quite convinced by the explanation of the Attorney General, and it must be satisfactory to his hon. and learned Friend to know that those who were best qualified to judge had pronounced their entire approbation of his conduct. In addition, the highest judicial authorities in another place had given their opinion that the Attorney General for Ireland had acted with the strictest propriety. He (Mr. Baines) hoped his hon. and learned Friend's conduct would serve as an example to future Attorneys General, when called on to perform a painful and delicate, but indispensable duty.


thought that this was a most anomalous power to lodge in the hands of the Attorney General, and that it was most desirable it should be removed from him. He was, however, satisfied that the hon. and learned Gentleman had exercised it in the present case with great propriety and with that moral courage which society had a right to expect from a man occupying his position.


said, that he could not conceive that, with a due regard to the duties of his office, the hon. and learned Gentleman could have followed any other course than that which he had pursued. If a writ of error were to be granted upon such frivolous grounds as those put forward in this case, writs of error would be sued out upon every conviction that took place. He would defy any lawyer to get up and state to the House and the country, that in this case there was error upon the record. Had there been a challenge, and that challenge refused, and a statement of that refusal indorsed on the record, it would have been different. But if there had been any failure of justice, which he did not believe, it would be owing to the fault of the prisoner's own counsel in not taking the trouble to whisper across the table to the Attorney General that he wanted to challenge one of the jurors. He deprecated very strongly hon. Members standing up in that House and making statements which went to insinuate that a man had been improperly convicted.


said, it was true that, strictly speaking, this was not a matter of error on the record, and so far the Attorney General was quite right in saying that he would not grant his fiat for a writ of error when there was no error on the record. But that was not the substantial question before them. It was rather a matter for the discretion of the Crown, advised by the Attorney General, than a matter for the discretion of the hon. and learned Gentleman whether or not he would grant a new trial. The prisoner had challenged twenty men peremptorily; but as, from the illness of a juryman, the other eleven had to be re-sworn, with the new juryman, this was in reality a new jury, and the prisoner had the right of peremptorily challenging twenty more. He could not help thinking, under all the circumstances, that the Attorney General would have taken a better course if he had distinctly informed the prisoner of his right to challenge, and if he had called the attention of his counsel to the power which they could exercise. Not having done that, he was of opinion that the Attorney General would have done well to advise the Crown to permit the opinion of the learned Judges to be taken upon the question.