BILL. LEAVE. FIRST READING. (Hansard, 9 June 1857)

§ SIR FREDERIC THESIGER,
in rising for leave to bring in a Bill to dispense with the attendance of Grand Juries at the Central Criminal Court, and at Courts of General and Quarter Sessions, holden within the metropolitan police district, except in particular cases, said, that in proposing a measure of this kind, he was prepared to expect that those who had not had their attention called to the subject might regard with some apprehension an interference with a venerable institution, which they were accustomed to regard as essential to the fair administration of criminal justice, and one of the most important safeguards of the liberty of the subject. No doubt in its origin the system of grand juries attained these objects, but by recent changes in the criminal law, and an improved system of preliminary investigation of charges in the Metropolitan Police Courts, its usefulness had been considerably diminished, and the necessity of continuing 1426 the system in the metropolis became extremely questionable. The question was by no means new, for the subject of grand juries had attracted public attention for many years. A great deal of evidence in reference to it was taken before the Commission appointed in 1845, to inquire into the state of the criminal law, and afterwards the question of grand juries was again investigated by a Committee of that House. Observations had since fallen from Judges on the bench, complaints had been made by advocates, which had been echoed through the press, and year after year the grand juries of the Central Criminal Court and the Middlesex Sessions had been in the habit of presenting themselves, not only as of no utility, but as being an absolute impediment to the administration of justice. Nor had legislative attempts to abolish the system been wanting, although they were unsuccessful. In 1849, the late Sir J. Jervis brought in a Bill to facilitate the administration of justice in the metropolitan districts, which contained provisions rendering unnecessary the intervention of grand juries in criminal trials, That Bill was referred to a Select Committee, of which he Sir F. Thesiger had been a member, and by which a great number of experienced men had been examined. Amongst others, they examined the Clerk of the Central Criminal Court, the Common Serjeant of that day, Mr. Humphreys, a solicitor practising in the Central Criminal Court, and who had written an excellent pamphlet on grand juries, an alderman of the City of London, the Chairman of the Newington Sessions, and a merchant of the City of London, who had been foreman of grand juries for a great number of years. These witnesses expressed an unanimous opinion that it was desirable that grand juries should not be assembled within the metropolitan districts, and this opinion was supported by reasons which seemed to him to be unanswerable. Nothing, however, was done on this subject. But in the year 1852, the then Recorder of London, whose unfortunate illness was deeply to be deplored, and whoso high character and sound judgment it was to be hoped would yet be useful to his country, in a charge to the grand jury of the Central Criminal Court, after considerable experience of the working of this system, spoke in the following terms:— The great mass of the cases were, as usual, of the ordinary description, and many of their predecessors in that box had expressed an opinion that 1427 it was unnecessary that they should be called together for the purpose of considering such cases. With regard to the great body of them, which bad previously undergone full inquiry by magistrates of great experience and legal knowledge, he (the learned Recorder) entirely concurred in the opinion of the grand jury, that their services in this district were perfectly useless. He was afraid that the grand jury not only occasioned a very great loss of time, but that they also were the means of increasing very considerably the expenses of criminal prosecutions, and that in some instances the grand jury also afforded an opportunity for parties to defeat the purposes of justice by tampering with the witnesses, and that in others they were made the medium of occasioning great injustice, by affording vindictive persons an opportunity of preferring unfounded charges behind the backs of those they accused. The grand jury at the same sessions made the following presentment:— The grand jury of the fifth session of the Central Criminal Court of the year 1852, beg leave to express their unanimous opinion that a grand jury within the limits of the jurisdiction of the stipendiary magistrates is wholly unnecessary. It increases the expense and adds to the delay of criminal prosecutions. It affords an opportunity for corruption and for tampering with prosecutors and witnesses. It enables an evil-disposed person to throw his victim into prison by a false ex parte statement made behind his back and without any previous notice. It is, in fact, an instrument of extortion and of oppression, and as it frustrates the ends of justice it is worse than useless, and ought to be immediately abolished. The grand jury having been informed that, presentments to the same effect have been made by other grand juries; that copies of several of these presentments have been laid before the House of Commons on the motion of Mr. Matthew Forster, the Member for Berwick; that a Committee of the House of Commons appointed to investigate the subject reported that such a tribunal had become unnecessary; that a Bill was introduced into Parliament by the present Lord Chief Justice of the Common Pleas, the Right Hon. Sir John Jervis, to abolish it, but which Bill was allowed to be dropped by the late Ministry; they consider that to suffer its continuance in opposition to the often recorded opinions of those best qualified to judge of its utility has a tendency to bring into contempt not only the administration of justice, but the laws of the country. The grand jury, therefore, request that a copy of this presentment may be forwarded to the Prime Minister and to the Secretary of State for the Home Department of Her Majesty's new Ministry, and they hope that a Bill to abolish the grand jury of the Central Criminal Court and of the Middlesex Sessions, will form a part of their earliest measures of law reform. In that year (1852) he (Sir F. Thesiger), as Attorney General under Lord Derby's Government, introduced a Bill to dispense with grand juries within the metropolitan district, but he was compelled to withdraw it in consequence of the dissolution which shortly afterwards took place. These facts showed that this question was not a new one, and also furnished the reason 1428 why he, a private Member, now brought forward this measure. He had not, however, presumed to interfere in the matter without previous communication with the Government; and from what had taken place he did not believe that Her Majesty's Ministers were at all dissatisfied with the Motion. On the contrary, he anticipated the cordial support of the law officers of the Crown on that occasion. [The ATTORNEY GENERAL: Hear, hear!] His observations might be supposed to apply to grand juries in general; but he wished it to be understood that he was not prepared to prevent the assembling of grand juries in the provinces. He deemed it advantageous to the public that magistrates and gentlemen of the enmities should be associated with the Judges in their periodical administration of criminal justice throughout the country. The appointment of a public prosecutor or the adoption of some improved system of preliminary investigation into offences might hereafter render it necessary to consider the whole subject of grand juries; but he strictly confined himself at present to the case of the metropolitan district, to which any sound arguments against grand juries in general would apply with peculiar force. It was superfluous to employ any antiquarian research in now discussing this question. Suffice it to say that grand juries were originally clothed with the character of public accusers—they presented crimes to the Justices in Eyre and had the power of committing prisoners; but in the reign of Edward III., when justices of the peace were introduced, their functions underwent a change. Ultimately, instead of possessing any original jurisdiction, a grand jury became merely a tribunal to receive evidence and decide whether there was a primâ facie case for sending accused persons to take their trial. This was a most important duty which could be safely and conveniently superseded only where a better system had been provided. This was precisely the case of the metropolitan police district, where magistrates of great experience and legal talent acted continually in the face of the public. Their principal functions consisted of receiving charges against alleged offenders, and of examining witnesses in the presence of the accused, who was confronted with his accusers, and had an opportunity of cross-examining them and the rest of the witnesses, and giving any explanation he thought right to offer. After a careful investigation, conducted 1429 under the most favourable circumstances for arriving at a correct decision, the magistrate determined whether there were sufficient grounds for sending the prisoner to trial. The depositions originally taken were transmitted to the court to which the offender was committed, and every formality essential to the protection of the public and to the prevention of unfounded charges was completed; and one would certainly suppose that, under these circumstances, everything had been done that could be required, and that the court might immediately proceed with the trial. But another preliminary ceremony had to be gone through before the trial. Twenty-three gentlemen, generally unaccustomed to legal inquiries, were collected together in a private room, where, with closed doors, under an oath of secrecy, and in the absence of the accused, they proceeded to reinvestigate the very point already determined by the committing magistrate—namely, whether there was a primâ facie case for putting the person charged upon his trial. With nothing to guide them but the indictment containing the accusation and a list of the names of the witnesses on the back of it, they had to grope their way in the dark, frequently through a labyrinth of complicated facts, and this after the whole matter had been decided for them by the police magistrate. If the grand jury, under these unfavourable circumstances, found a true bill their labours were perfectly supererogatory. If, on the other hand, they threw out the bill, their interference was often purely mischievous. Justice in their hands was liable to miscarry, either from a misconception as to their own functions, some jurymen imagining that they had to decide on the guilt or innocence of the accused; or from the witnesses being tampered with and induced to suppress the evidence they had previously given when before the magistrates. This the witnesses could do in perfect security, because their examination before the grand jury was conducted in secrecy. In fact, the grand jury system multiplied the chances of escape for the guilty to such an extent that it was called "the hope of the London thieves." The innocent would be benefited by the change he proposed, because, after such a person had been once committed by a magistrate, his innocence would be established in the face of the country if he took his trial; whereas a suspicion would probably still attach to him, even though the grand jury had 1430 thrown out the bill against him, owing to the reasons for their decision being unknown to the public. As an illustration of the present system, he thought he could not mention anything more forcible than a case which occurred last year in his own experience. The medical attendant of a county lunatic asylum, after having been assaulted by a patient, directed him to be taken to a shower-bath, to be kept there for half an hour, and afterwards to have a dose of tartar emetic. The unfortunate man was placed in the shower-bath, and after having been kept there for twenty-eight minutes he was removed, the medicine which had been prescribed was given to him, and in half an hour afterwards he died. He (Sir F. Thesiger) did not venture to express any opinion with regard to the conduct of the medical man. The treatment which he ordered might have been necessary to his patient; but nobody could doubt that that was a subject which ought to have undergone a most searching public investigation. And so thought one of the most able, intelligent, and experienced of the police magistrates (Mr. Henry) before whom the charge was made against the medical man; for, after having carefully examined the whole of the case, he thought it was his duty to send the patty for trial. The grand jury, however, for reasons which were unknown, chose to think that it was not a case for inquiry, and they threw out the bill. He (Sir F. Thesiger) could multiply these instances if necessary; but he thought that the illustration which he had given was sufficient to show the mischief which might arise from allowing a grand jury to interfere between the public investigation before a magistrate and the trial in the Superior Court, which was not only a protection to the party accused, but also to the public against the possibility of the accused party escaping from justice. But the mere throwing out of bills by grand juries in such cases was not one half of the evil consequent upon this system within the metropolitan district. He believed that there was hardly a Session of the Central Criminal Court or a Middlesex Session held without persons preferring indictments for different classes of misdemeanour for the purpose of revenge or extortion. The particular misdemeanours which were generally made the subject of these accusations were conspiracy, perjury, keeping gaming or disorderly houses, and obtaining money under false pretences. 1431 It was not at all necessary that the parties should go before a magistrate to prefer accusations of that description. If a person was desirous of gratifying his malice or extorting money he might wait for the assembling of the grand jury, and then, without the slightest notice to the party, he might prefer his indictment. The proceedings were altogether secret. If the party got his bill, application might be made at once for a Bench warrant; and Saturday was the day generally selected for that purpose, because then the party must remain in custody for nearly two days before bail could be given. Having secured that engine of extortion, it was set to work, and the accusing party had good grounds for hoping that the accused would compromise the matter with him, rather than submit to the exposure of a public trial. Provision was intended to be made against such cases by the Central Criminal Court Act, and the manner in which that provision was defeated was a curious instance of the subtlety and evasiveness of fraud. That Act provided that no indictment for misdemeanour, except for perjury, should be presented at the Central Criminal Court unless the party was in custody, or unless the prosecutor was bound in recognizances. That of course was to necessitate the intervention of a magistrate, but, inasmuch as the Central Criminal Court was the only Court mentioned, parties had been in the habit of going to the Middlesex Sessions, and of there procuring the grand jury to find bills of this description. They then removed them to the Central Criminal Court. No recognizances at all were entered into, and so they evaded the provisions of the Act of Parliament. Misdemeanours were still presented to the grand jury without any previous investigation before a magistrate. With regard to recognizances the course which they pursued was this—they went to a magistrate and said, "We want to prosecute A B for fraud or conspiracy; bind us over in recognizances;" and without any investigation of the facts the magistrate bound them over. Now, the consequence of these proceedings were most alarming, find he could not help giving one or two instances which had occurred within his own knowledge. A lady of undoubted respectability was indicted in this secret manner for keeping a brothel by a person who, as was afterwards ascertained, had been under sentence of transportation. 1432 She appeared on the day fixed for the trial, but neither the prosecutor nor his witnesses attended. She had the owner of the house in court to show that her apartments had always been occupied by families of the highest respectability. Of course an acquittal took place immediately, but it was impossible for that lady to avoid the suspicion which was excited in many minds that the prosecutor and his witnesses had been bought off. In another case, a person of great respectability, a banker and solicitor in the county of Surrey, had two indictments preferred against him—one for forgery and one for conspiracy. The party who preferred them had made three similar experiments at the Central Criminal Court and one at the Middlesex Sessions, but without success. But by perseverance he obtained his bills of indictment, and the trial came on before Lord Campbell. The result was an acquittal, accompanied with the applause of the persons in court, Lord Campbell stating to the jury that he had no doubt they would feel that there was not the slightest imputation upon the gentleman's character from the proceedings. He offered these instances as samples, not of what might take place, but of what actually did take place under the present system. Whether a party so accused were innocent or guilty the effect was much the same. Many an innocent party might not not have the nerve to stand a public trial. It might be that he was accused of some infamous offence without the slightest foundation. He shrank from the idea of appearing in public, and was therefore willing to pay a very large sum in order to induce the withdrawal of the prosecution. If the party was guilty there was an additional motive for making a compromise with his prosecutor in that manner, and persons had been found to make a trade of preferring indictments in order to convert them into instruments of the most infamous extortion. Now, the remedy which he (Sir F. Thesiger) proposed was very simple. He proposed that no charge should be tried in the Central Criminal Court, or in the other courts within the metropolitan police district, without a previous investigation before a magistrate. When that had taken place, no inquiry before a grand jury would be necessary, and he therefore proposed to dispense with the attendance of a grand jury at the sessions in the metropolitan districts altogether in such cases. Various subordinate advantages would arise from 1433 the measure. In the first place, there would be a very considerable saving of time and expense. Under the present system prosecutors and their witnesses were bound to attend in the first place before the clerk of indictments, for the purpose of being examined with a view to preparing their depositions and the indictment. They Lad then to go before the grand jury; but it frequently happened that they were obliged to remain for two or three days before their case came on. Then the grand jury examined the witnesses; but if a bill was found, they had to wait a day or two more for the trial, so that, in fact, four or five days were consumed, during which parties were neglecting their business, while several hundred persons of different sexes were thus collected together under circumstances which were certainly not advantageous to their morality. The inconvenience, expense, and delay arising from these circumstances were so great that many persons were deterred from prosecuting. Then, again, the expense was no inconsiderable element for consideration. No doubt the witnesses were paid small sums, ranging from 1s. 6d. to 3s. 6d. per day, but when this was multiplied by several days, by hundreds of offences, and by twelve Sessions a year, it would be found that the aggregate amount was a very considerable one, and a large saving would necessarily take place by the plan he proposed. Under the new system the clerk of indictments would prepare a list of cases, so that persons would be able to ascertain when their cases were likely to be tried, and would only attend on that day. The business of the Session might be thus most conveniently arranged, a great saving of time and money would be effected, and public justice in this district would undoubtedly be greatly facilitated. He felt that he need not occupy any longer the time of the House. It was quite sufficient to say that all those whoso attention had been called to this subject—whether Judges of the Superior or of Criminal Courts, grand jurors, barristers, solicitors, or magistrates—all concurred in the opinion that within this particular district there was no necessity whatever to continue the assembling of grand juries, but that the present system was rather detrimental than conducive to the administration of justice. He was sure that after the observations which he had addressed to the House, hon. Members would not wonder 1434 that he had interfered in this matter, but would rather be surprised that the existing system had been allowed to continue so long, and that it had not long before been put an end to. The hon. and learned Gentleman concluded by moving for leave to bring in a Bill to dispense with the attendance of grand juries at the Central Criminal Court, and at Courts of General and Quarter Sessions holden within the metropolitan police district, except in particular cases.

§ MR. HENLEY
seconded the Motion.

THE ATTORNEY GENERAL:
My hon. and learned Friend is quite right in his anticipation that he will not only have the concurrence, but the cordial support, of the Government in the measure which he has asked leave to introduce. I can only mention, by way of apology for such a measure not having at an earlier period been brought forward by the Government, the circumstance that we were desirous of introducing it, together with some largo and comprehensive plan on the subject of the approintment of a public prosecutor, which has been so long a matter of general deliberation and necessity. I cannot, however, be sorry that the measure falls into the hands of my hon. and learned Friend, to whom I may say, having regard to his former efforts in this matter, it may be regarded as legitimately belonging. It is, indeed, a matter of melancholy reflection that under cover of respect for what is commonly deemed one of our venerable institutions, a system should have so long been continued which is proved by the speech of my hon. and learned Friend to be the source of mischief, of obstruction to justice, and even an instrument facilitating corruption in the administration of justice. I am very glad, therefore, that the House has heard the statement made by an authority of the experience of my hon. and learned Friend. I should only weaken the force of that statement if I attempted to add instances which have occurred within my own observation, necessarily limited as that has been so far as regards the administration of the criminal law. I can only assure the House that the subject of the appointment of a public prosecutor (I use that phrase, not as binding myself to the appointment of any officer answering to that title, but as the denomination merely of some system for the regulation of prosecutions throughout the country) is one still under the consideration of the Government; and if it had not been for the lamented 1435 circumstance to which my hon. and learned Friend has so feelingly referred—I mean the unfortunate manner in which we were deprived of the services of the late Solicitor General—a plan upon that subject would have been some time since laid before the House. In conclusion, I can only again promise my hon. and learned Friend every opportunity for facilitating the progress of his measure.

§ MR. BOWYER
said, he did not rise for the purpose of offering any opposition to the Motion of the hon. and learned Gentleman; but at the same time, admitting the force of many of the arguments which had been urged as to the inconveniences attending the system of grand juries, it behoved the House to consider very seriously and with the utmost possible care a change in a fundamental principle of the law of England, and so great an innovation as that which would allow a man to be put on his trial for felony or treason [Sir F. THESIGER: No, not for treason!] well, for felony, without a bill found by a grand jury, and merely at the will of a magistrate removable at the pleasure of the Grown. He did not mean to say that magistrates would not do their duty honestly. Under ordinary circumstances, undoubtedly they would. But it was very easy to conceive circumstances arising in which the safeguard afforded to the subject by the institution of grand juries might be of essential importance. If, too, it were important generally, the grand-jury system was particularly important in London and Middlesex, where cases of a political nature were, perhaps, more likely to arise than in almost any other part of the kingdom. The very exception with regard to treason which the hon. and learned Gentleman had made was an admission of the force of the arguments which he (Mr. Bowyer) was urging upon the House. In cases of treason the hon. and learned Gentleman proposed to preserve the grand jury, because he felt that in political trials the safeguard afforded by that system was essential to the liberty of the subject. But might not other cases, not of treason, but bearing the same political complexion, easily arise? He need not go back to past history to prove the possibility of this. An indictment for assault or for murder, a riot, or a case in which the rights of the subject were thought to have been invaded by an officer of the Crown—all these might involve political questions, in which it was most important that the people should have 1436 every protection from the danger of unfair bias, and yet a magistrate removable at the pleasure of the Crown, in communication with the Home Office, and acting, probably, under instructions from the Secretary of State, would have it in his power to put a man on his trial in these cases. Let him remind the House with what care the constitution of this country had fenced round the trial of prisoners. The only instance in which a man could be put on his trial on indictment without a grand jury was for misdemeanour, upon a criminal information. Now, criminal informations were sometimes laid by the Attorney General, who was conspicuously responsible to the House and to the country for the manner in which he discharged his duties; in other cases application must be made to the Court of Queen's Bench, the highest criminal court in the country, except the House of Lords. Again, when a coroner's inquest was held, and a verdict of murder was returned, a person might be brought to trial without the intervention of a grand jury, but even then it was always usual to go before a grand jury before the prisoner was put on his trial. All the greatest legal authorities of England had declared that no man could be put in jeopardy for life or limb otherwise than by the finding of twenty-four jurors—the finding of a bill by twelve jurors, and the conviction by twelve others. It had been said that in the case of proceedings before a grand jury corruption was used to prevent witnesses from appearing; but might not the same thing arise in proceedings before magistrates? The only way of preventing such corruption was the appointment of a public prosecutor, whose duty it would be to see persons brought to justice, and that no tampering took place. He acknowledged that the issue of bench warrants against men who had no previous notice that an indictment was preferred against them was a grievance. But it was one that might be obviated by enacting that no indictment should be presented in London until a charge had been previously preferred before a magistrate. He trusted that the House would not sanction a departure from principles which were essential to the liberty of the subject, and which formed a fundamental portion of the constitution of the country.