COMMITTEE. (Hansard, 6 July 1857)

§ MR. HENLEY
said, he wished to inquire who was to pay the costs of rearguing a case before the Superior Courts at Westminster. He did not think that justices of the peace were of themselves competent to frame cases to be argued before the Superior Courts. Moreover, he thought that the appeals under the Apt would throw a great increase of business on the Superior Courts, with regard to which it had been already stated that evening, that they were sufficiently occupied.

THE SOLICITOR GENERAL
said, that appeals would only take place in the exceptional cases in which difficult points of law were involved, and in which parties might think it worth while to dispute the legality of the decisions of magistrates; and the party appealing would be required to enter into a recognizance conditioned to pay all the costs consequent upon the appeal.

§ MR. HENLEY
said, he would beg to the hon. and learned Gentleman 1021 that there were many cases in which the complainant would not take the matter before the Court of Queen's Bench.

THE SOLICITOR GENERAL
thought that it was not likely that there would arise a case in which the defendant would appeal, and the complainant would not think it worth his while to defend it.

§ MR. HARDY
observed, he was anxious to know what the particular evils were which this clause was intended to remedy? The defect of this Bill was that they were bringing before the courts questions of law which might arise before the justices, and yet they did not provide the proper means for doing so. It appeared to him that no case was shown why this clause was necessary.

MR. NAPIER
said, he would confess that the Bill, as far as it went, was a good Bill. The proceedings by certiorari were most circuitous and inconvenient. The magistrates who had the power of disposing of the questions before them, would be able to say whether there were any grounds for an appeal. Although the Bill did not meet the whole case, so far as it went it had his hearty consent. He hoped that it would be extended to Ireland.

§ MR. J. D. FITZGERALD
said, that he had considered this Bill carefully, and he so highly approved of it, that he was prepared to support the Amendment to extend it to Ireland. The Court of Quarter Sessions was admitted to be a bad tribunal for determining questions of law. The Pill, therefore, provided that such questions should be tried before a more competent court.

§ MR. HENLEY
said, he did not think it fair that they should cast upon the justices, who were acting in the matter without any pay, the expense of taking those questions before a higher tribunal. It was a very harsh proceeding to impose such a burden upon the magistrate, who had not the slightest personal interest in the matter, and drag him up to town at an expense of some £10 or £20. The Bill did not provide the proper machinery for carrying out the appeal. He would suggest that the cases ought to go through the Home Office.

§ MR. MASSEY
said, practically, there was not at present the means of reversing the decisions of a magistrate on a point of law. The right hon. Gentleman said it was hard to throw upon the magistrate the expense of referring these cases to a higher tribunal, but the party he thought 1022 most to be considered was the convicted or injured individuals. That appeared to him to be an inconvenience so unimportant compared with the interests of the party aggrieved by the magisterial decision, that he thought it was scarcely worthy to be taken into consideration. He did not believe that there was any danger of this remedy being abused. A certain amount of expense must be incurred by the party applying for an appeal, which he thought would be in itself a sufficient safeguard against any improper or vexatious proceedings in that direction.

§ MR. HENLEY
said, that the Home Office were the natural protectors of the magistracy, and they had no right to put the latter to the expense of the proceedings on appeal. Let them carry the case up to the House of Lords if they liked, but they had no right to call upon them to pay the expenses of rearguing cases before another tribunal. If a magistrate was wrong either in fact or law, it would be equally a case of injustice to subject gentlemen who were working for nothing to this expense.

MR. NAPIER
said, the right hon. Gentleman had misapprehended him. In most cases there were two parties to the question, and those two parties alone would be necessary to be represented before the court. It was for the magistrate to grant the appeal, but he was not bound to follow up the case and go to the expense of supporting his decision in a superior court.

§ MR. NEWDEGATE
said, that it was obvious that there was no provision to make both parties follow up the appeal, and if the magistrate refused to allow an appeal he would be liable to the imputation of being a shabby fellow who was afraid to allow an appeal because of the expense.

§ SIR GEORGE GREY
said, that the same thing might be said of appeals from the Court of Quarter Session. It was his opinion that they could not give the magistrates a large increase of jurisdiction unless an appeal was allowed, nor did be think when one or two cases had been decided, that the appeals would be so numerous as was apprehended. He could mention a case in which a person had been convicted, and sent to prison for a trifling assault. It certainly seemed to him a case for an appeal, but no means were given to the prisoner to carry it out under the present law.

§ MR. HILDYARD
said, that no answer had been given to the question so repeatedly asked as to what would be the position of a magistrate when a question of law was raised. He believed the effect of this Act would be that magistrates would be harassed by unscrupulous attorneys and dragged into the Superior Courts, when, even if the judgment was affirmed, the magistrates would be saddled with heavy expenses. If they gave a power of appeal they ought to make a provision for the expense.

THE SOLICITOR GENERAL
said, the impression seemed to be that the expense was to come out of the private pockets of the magistrate, whereas, in the first instance, it was in his power to refuse a frivolous appeal; and, secondly, all the magistrate would have to do would be to write down on a piece of paper the point of law on which he had based his conviction, hand it to the party applying for it, who would be bound under recognizances to pay all the costs of the appeal, and the appeal would be decided on that case, the only thing being that if the point of law was wrongly stated it might be sent back. The magistrate might go to the expense of arguing the case or not, at his pleasure. In all the cases that would be decided by the Act there would really be two substantial parties—namely, the complainant and the person convicted. He did not see in this Bill any of the evil consequences imagined by hon. Gentlemen opposite.

§ MR. HENLEY
said, it would be a perfect fallacy for a magistrate to sit down and write a case for himself. Not one would venture to do it, especially when the defendant had the privilege of choosing his own court. He thought that the Home Office ought to bear all the expenses of the appeal.

§ MR. HILDYARD
said, he wished to point out that the fifth clause gave power to the court to grant such costs as it might think fit, and therefore it gave power to grant costs against magistrates.

MR. MILES
said, that every clause of this Bill would require the greatest attention. Considering the lateness of the hour (twenty-five minutes past twelve) he should move that the Chairman report progress.