HC Deb 07 July 1858 vol 151 cc1051-64

Order for Second Reading read.


, in moving the second reading of this Bill, stated that it were founded on a Bill introduced by the present Attorney General in 1844, and on another Bill having the same object. There were three main provisions. The object of the first provision was to remove doubts which had existed for forty years as to the power of the Court of Queen's Bench to remove indictments after trial into that court, and to grant a new trial. This was his own idea. The object of the second provision was to remove doubts as to whether or not the statute of Edward I., with regard to Bills of exceptions, applied to criminal as well as civil cases. That was contained in the Attorney General's Bill of 1844. By the third provision subordinate courts were enabled to grant new trials themselves. The last provision was introduced in accordance with a suggestion made by Sir Frederick Pollock when he was examined before the Commissioners on criminal law reform. There were subordinate provisions of secondary importance, including clauses authorizing the removal of indictments from sessions to assizes, and the summoning of special juries in certain cases. It might be objected that the Home Office afforded a sufficient remedy in cases where there had been errors either of law or of fact, but the Criminal Law Commissioners, after fully considering the subject, were of a different opinion, and regarded the existing system as unsatisfactory. The law of this country with regard to new trials differed from that of every other civilized country except Scotland, and manifestly required alteration.

Motion made and Question proposed—

"That the Bill be now read a second time."


was understood to say that the measure itself was one which, in order to make it at all acceptable to the House, would require so many alterations it was vain to hope that it could be passed into a law in the present Session. There was the 17th clause, for example, which proposed to give power to the Courts of Oyer and Terminer to grant new trials in respect to every case that had been tried before them; so that a person acquitted by a jury of his country might be tried over and over again. Now, this he thought a most objectionable provision, and one which would give rise to much inconvenience and litigation. Whether it might not be advantageous to give an appeal in certain criminal cases from the Court which first tried the case to the Queen's Bench, was a question which he was fully prepared to consider; but that power could only be given under great modifications and restrictions. He had spoken to the Attorney General the previous night upon this subject, and his hon. and learned Friend informed him that he had maturely considered all those matters, and he thought the second reading of this Bill could only be assented to upon the understanding that the principle contained in the 17th clause should be given up. Looking at the many defects in the Bill he (Mr. Walpole) thought it utterly impossible that the measure could be passed in anything like its present shape in the present Session. It was, however, in his opinion desirable that the matter should be fully discussed.


confessed that some years ago, before he had any experience of official life, he was quite in favour of some such measure as that proposed by the hon. and learned Gentleman the Member for Wexford; but the result of three years' careful examination of the working of the criminal law had led him to the conclusion that it would be very unwise to read this Bill a second time, inasmuch as such a proceeding would be equivalent to a pledge by the House that the principle was one which ought at some future time to be carried into law. The matter was not new, for the hon. and learned Attorney General had brought it before the House on a previous occasion, when it was eventually dropped without any opinion being expressed upon it. Up to 1844 the law, no doubt, was in a very anomalous state, but since then many of the defects that existed in our criminal proceedings had been removed. In 1844 there was no tribunal which had the right to rectify any blunder of a learned Judge; but now there was a most satisfactory tribunal, the Court of Criminal Appeal. Formerly the Judges, indeed, if asked to do so, met and talked over the matter, and, if they thought fit, advised their learned brother to alter his decision; but now, in the Court of Criminal Appeal the question was solemnly argued and decided. The real question was, whether there ought to be a power of appeal given in every criminal case, when it was alleged that the jury had acted wrong in respect to matters of fact. Under the existing law the juries were impressed with the grave responsibility that attached to them, and were always anxious to give to the prisoner the benefit of a doubt, conscious that their determination in the matter was final. If the present Bill passed the jury would feel themselves relieved of much of their responsibility, and the prisoner would most probably be deprived of the benefit of the doubt. The delay which such a measure would cause in the carrying out the original verdict would render it most difficult to maintain the system of capital punishment at all. In all cases where a man's life was in question there would, of course, be an appeal; and if he were convicted at the Summer Assizes, months would elapse before a new trial could be even applied for. Under such circumstances he could not see how the immense amount of criminal business was to be got through. The result of his experience of the working of the criminal law convinced him that the mistakes made were very rare indeed. He also objected to the present Bill, inasmuch as it only provided for an appeal in the case of conviction; it did not give the same right in case of a wrong acquittal. Indeed it could not provide for a new trial in the latter case without infringing the principle that a man should not be put in peril twice for the same matter. For all those reasons he should oppose the Bill.


said, he thought that prisoners who had been unjustly convicted should have a new trial, and he believed that applications for new trials would be very few. He thought it a great anomaly that there should be new trials in civil and not in criminal cases. Was it not an anomaly to say that if the Judge made a mistake it could be set right, whilst if the jury, a much less educated tribunal, made a mistake, there was no means of rectifying it?


said, that a few years ago counsel were not allowed to address the Court for prisoners in cases of felony, and when a Bill was brought in to redress that wrong it was opposed on similar grounds to those which were urged against this Bill. Those arguments had weight with the House for some time, but at last people saw through them, and the Bill obtained the assent of Parliament, and had worked well. He was certain that if the present Bill was passed it would be equally successful. It had been said that if this Bill passed there would be an appeal in every case in which a severe sentence had been inflicted. Well, he said, that if a man was sentenced to punishment he had a right to have the verdict of the jury and the sentence of the Judge reviewed. A man who in a civil case was mulcted in damages had an appeal; was it not unjust that one who was condemned to death, or to long imprisonment, or transportation, should have none? The case of Mr. Barber alone would suffice to show that an appeal in criminal cases should be allowed. But he did not want any cases to be shown in support of a measure of this kind which stood on broad principles of common sense. The opposition to this Bill was an instance of the self-glorification they were too apt to indulge in, for they believed that the law was almost perfect, when, in fact, the civil law was very imperfect, and he believed it more uncertain now than it was in the time of Lord Eldon. If they were told that in Naples, for instance, a man might be sentenced to death without appeal, they would say that it was a most barbarous law; and there might be some persons who would say that they ought to send a frigate to teach the sovereign of that country to alter the law. Again, they were. told that if an appeal were allowed to criminals all would appeal, delay would take place, and the Judges would be overworked. To that argument he replied that they ought in that case to make more Judges. What was the principle on which the law of appeal was based? Legislators all the world over had agreed that the decision of no one Court ought to be conclusive on important matters affecting an individual. The decision of the Court was more important in criminal than in civil cases, and he believed that this was the only country in which an appeal was not allowed in criminal cases. Such an appeal existed in France to the Court of Cassation. And he was quite sure that although the Bill might now be rejected, common sense would eventually prevail, and an appeal would be allowed to persons criminally convicted.


quite agreed that it was desirable to have certainty of decision in criminal cases, but that he thought meant certainty of having a right decision. Nor did he think that any considerations of expense or delay could weigh in importance against that of punishing the right man. He did not think that the present power of taking up the record to the House of Lords had ever been said by any one engaged in the administration of justice to have caused undue delay. And he could not see why a similar remedy in case of a mistake by the jury in point of fact should not be granted, nor why it should create greater delay. He was willing to admit that the Court of Criminal Appeal was a very good Court, but no case could be brought before that Court unless with the sanction of the Judge trying the case, and unless he reserved points for the consideration of the Court. Now, he did think that a Judge ought to have such a power, and, therefore, he quite agreed in that portion of the Bill which would give the prisoner, in all cases, the right to take the opinion of a Court of Appeal upon points of law ruled by the Judge upon the trial. That power of appeal to one of the Superior Courts was given in all cases of summary convictions by magistrates, who could be compelled by the party dissatisfied with their decision to state a case for the opinion of one of the common law courts at Westminster. He did not think that if this Bill were carried many appeals would be successfully prosecuted, because the Judges would not any more in criminal than they did now in civil cases disturb the verdict of a jury except upon the strongest grounds. At present there was no remedy, however perverse might be the verdict of a jury. He would support the second reading of the Bill, although he admitted that some of the details might require amendment.


said, it appeared to him that one of the principal objects of the Bill was to give the prisoner an absolute right of appeal both in point of law and fact. He had heard complaints made that Judges had not given sufficient consideration to the objections taken in point of law by the prisoner's counsel, and had declined, when they should not have done so, to reserve them for the Court of Criminal Appeal. Now, it would be a great thing, if the Bill did nothing else, to enable the counsel who appeared for the prisoner at his trial to take the opinion of the higher court in all cases upon points of law. If that was the case in civil cases, and if in cases where persons had sufficient property they could transfer their cases into the Court of Queen's Bench, and then derive all the benefit of an unrestricted appeal to a Court of Error in point of law, he said that it was the duty of the House to extend to all persons who were tried the privilege which was enjoyed by those who could transfer the case to the Court of Queen's Bench. To show the wisdom of such a measure, he might refer to the case of Mr. Auchmuty Glover, who had been lately prosecuted by the Attorney General, by the direction of that House. If there had been such a law in existence Mr. Glover, who bad not taken the precaution to remove his indictment into the Queen's Bench, could have had a new trial, and the jury would not have had to deplore, as they did, what they have done. The circumstances which had since come to light to show the innocence of Mr. Glover might have been laid before the Court of Queen's Bench, on affidavit, as ground for a new trial. In short, if the Bill were passed, instead of an application to the Home Secretary in cases where it was thought a man had been unjustly convicted, the decision of the Judge and jury, in point of law and fact, would be reviewed by four Judges in Westminster Hall, who were, he thought, a much more satisfactory tribunal to decide whether the verdict and the ruling of the Judge were justified by the evidence and by the law. If this was the course pursued in civil cases, a fortiori, it ought to be taken in criminal cases. And he said this especially looking to the fact that our criminal law was in such a state of imperfection that it was found necessary to allow an appeal in point of fact to the Secretary of State, who he did not think was the proper person to be charged with such a duty.


said, that he believed that to pass this Bill would be to do away with the right of trial by jury, because it would allow the decision of a jury, in point of fact, to be reviewed by the Judges. At present there was an appeal only in matter of law. And he would ask the House to mark how few cases of appeal there were from the minor jurisdictions. Then, sup- pose a jury convicted a prisoner against the weight of the evidence, the Chairman of quarter Sessions, if the case was not an important one, and the verdict was, as he supposed, against the facts, awarded a very slight punishment. If it was a heavy case, and a severe punishment was awarded, the prisoner's friends went to the Home Secretary, who obtained the notes of the trial made by the Chairman of the Quarter Sessions, together with his opinion on the case; upon that the Secretary of State acted, and he believed that his decisions generally gave satisfaction. He believed that if this Bill were passed they would have an immense increase of appeals in criminal cases at the instance of pettifogging attorneys. The Judges would be overworked, and he did not believe that the decisions come to by a Court of Appeal could have half the effect of those arrived at by the Secretary of State. He should move that the Bill should be read a second time that day three months.

Amendment proposed to leave out the word "now," and at the end of the Question to add the words "upon this day three months."


said, he wished to ask whether the Bill was to apply to acquittals as well as convictions? [Mr. M'MAHON: No:] He thought that the House should be satisfied on that point previous to going to a division.


said, that all human tribunals were fallible, and the English law in matters of property was so fully aware of this that it allowed a man, when his property was at stake, to carry an appeal to the highest tribunal—the House of Lords. But when a man's life was at stake, it said that cases should be only tried once. The hon. Gentleman who preceded him (Mr. Miles) said, he wished the trial by jury to be final. It was not final now, for there was an appeal to the Secretary of State. The friends of the prisoner could send petitions to the Home Secretary. Who decided upon them? Not the Home Secretary, but his Secretary, Mr. Waddington, sitting in his parlour, without responsibility, and without the check of a Bar. He it was who in reality decided. Justice was not justice unless the people believed it to be so, and a dark tribunal of this kind did not conciliate public opinion. It was a cruel anomaly in the law of England. The law once was, that no witness could be sworn for a prisoner; and it was within his (Mr. Roebuck's) time that counsel was allowed to a prisoner. When it was proposed to grant the prisoner that right there was great opposition to the proposal. The Judges were against it. He would now ask, whether the opponents of that measure bad not since seen ample reason to approve of it? The Judges would now say that much good had resulted from it. He did not believe that the opposition to the Bill before the House ought to or would be successful.


said, that while granting that the law required Amendment, he did not think that this Bill would effect the required Amendment. He thought that no man should be put on trial for his life before any Judge who had not an opportunity of consulting with a second Judge on the case as it was being tried. In fact there ought to be two Judges in such cases. In that part of Wales with which he was connected, an English Judge was about being sent to deliver a very heavy calendar. The Judge did not understand a word of Welsh, and be would probably have a jury half of whom were Welsh, not understanding a word of English, and half English, not understanding a word of Welsh. It would be easy to conceive in what a position a Welsh prisoner would be placed who was being tried for his life. At the same time he could not support the Bill before the House, and he trusted therefore that it would be withdrawn, and that another, and better one, in which Wales was included, would be brought in.


said, that however beneficial the Bill might be to practitioners in criminal courts, it would be decidedly injurious to the whole of the non-criminal portion of the community. He was, therefore, sorry that his right hon. Friend the Home Secretary had consented to the second reading of this Bill. He hoped that the consent of his right hon. Friend would be withdrawn, as none of the law officers were present when it was given. There were already loopholes enough for the criminal portion of the population without affording them those additional modes of escape which the Bill would provide them with. Great commiseration bad been shown for prisoners, but he thought a little might be spared for those who were the victims of their crimes.


said, he thought that the precautions at present taken with regard to bringing prisoners to trial, and during trial, were not sufficient to prevent the possibility of mistake, and such being the case, he held that an appeal should be allowed. He remembered a case where a man was tried by a most able Judge and an intelligent jury. Eleven of the jury considered him guilty, but one had a doubt, and the jury was discharged. The man was tried at the next assizes by the same Judge but by another jury, and in less than a quarter of an hour the jury acquitted him, and it was subsequently found that he was guiltless, another person having committed the offence. He had given his attention during the last twenty years to the state of the criminal law, and the conviction was very strong upon his mind that innocent people often suffered while the guilty escaped, and he should support the Bill on the ground that it would afford an; additional precaution against such occurrences.


cited some cases of erroneous convictions, and expressed his opinion that many very serious mistakes were made in the administration of the criminal law. He should therefore give his support to the Bill, although he would rather have voted for the appointment of a Select Committee of inquiry, as to the necessity of such a court of appeal.


said, that though the lawyers were a numerous class, and though most persons thought that the less they had to do with them the better, still he believed that we owed to lawyers a great many of the rights which we now possessed. He would support the Bill, and he was sure that in five or ten years hence no Member of that House—not even the right hon. Gentleman the Member for Kidderminster (Mr. Lowe)—would venture to get up in that House and express a doubt of the mercy, the wisdom, or the justice of the Bill. All the Bill asked the House to do was to go on with a process which had been proceeding slowly for years past. Some time ago prisoners were not allowed to have counsel or sworn evidence, and he could not conceive anything more brutal than such a state of things. He had had under his notice a great number of cases, in which he had had a strong conviction that if they could have come under the notice of a Court of Review, the result would be different. They had been told that there was a Court of Review in the Home Secretary, but nothing could be worse than such a tribunal. The friends of a man condemned to death in London could bring many influences to bear on the Home Secretary, but when the man lived in the north of Scotland, or in the south or west of Ireland, his chances of influencing the Home Secretary were absolutely worthless. As some such arrangement as that proposed by this Bill prevailed in, he believed, every other civilized country in Europe, he could not see any pretence for an opposition to the Bill in the English House of Commons. He did not think that any gentleman with a conscience who had ever filled the office of Home Secretary could hesitate to vote for the measure. He trusted, therefore, that no hon. Member of the House would act on the unjust, and he might almost add, the offensive arguments of the right hon. Gentleman the Member for Kidderminster (Mr. Lowe).


said, that although he was in favour of the measure, he did not think that the Courts of Quarter Sessions deserved the attacks that had been made upon them by some hon. Gentlemen who had taken part in the debate. He was sure that the majority of the gentlemen who presided in those courts would be very glad to see a Court of Appeal in criminal cases established. Whenever he had been asked for appeals on points of law he had granted them, and such he believed was the general practice. He had been engaged in a most painful inquiry that day, that of Mr. Barber, and he thought he might say that if at the time of the trials for the will forgeries there had been a Court of Appeal, Mr. Barber would not have been placed in that position in which he had unfortunately found himself. On every principle of law and justice he considered that there should be an appeal, in criminal cases, and, as he thought that any imperfections might be corrected in Committee, he should support the second reading.


observed, that he would also vote in favour of the second reading. He reminded the House of the case of the two men recently executed at Nenagh. When that case was before the House, he (Mr. Gilpin) had expressed his conviction that these men were innocent. Circumstances which had occurred since confirmed that conviction, and he trusted and believed that the case would again come before the House. But whether these men were innocent or guilty, it would have been an immense comfort to thousands in Ireland had the verdict in that case been subjected to the revision of a Court of Appeal. He considered that the Bill was onward step in that glorious path in which Romilly had led the way.


said, he had devoted many years' consideration to the subject, and was strongly in favour of the Bill. Much bad been said about the appeal to the Home Secretary, but all that could come of that appeal would be a pardon, which was not a satisfactory mode of doing justice to an innocent person who had been convicted. It often occurred that fresh evidence turned up after a trial; evidence to show that the prisoner was not guilty. In such cases a free pardon, which did not, in terms, affirm the innocence of the party, was a very poor compensation to the man to whom the wrong was done. Though he believed the Bill would require very extensive amendment in committee, he should vote for the second reading, on the ground that a Court of Criminal Appeal was, in his opinion, necessary.


said, that the Bill placed himself, together with every other hon. Member, in a difficulty. It was not his conviction that in no case ought a man tried for a criminal offence to have a right of appeal; but if he voted for this Bill, he would be voting that a man accused of a criminal offence should be tried twice, or, perhaps, three or four times over. Now, as he was not prepared to do that, he thought that probably the best thing he could do was not to vote at all. The argument had gone on the principle that the proposed Court of Appeal was to relieve the Home Secretary of that which was, no doubt, one of the most painful parts of his duty; but if it were meant that, by instituting the right of appeal in criminal cases, the prerogative of mercy was no longer to be exercised by the Crown, he could never give his assent to such a measure. Upon principle, he was not opposed to an appeal in criminal cases, but he could not agree that a person who had been once tried and acquitted should be liable to be put on his trial a second time.


observed, that the Court of Queen's Bench would never order a new trial where the party was acquitted, but would proceed upon the well-known maxim of law, that no man could be tried again for the offence of which he had been once acquitted; and he hoped, therefore, to have the vote of the right hon. Gentleman (Mr. Henley) as well as the votes of his colleagues.


said, he took exactly the same view, of the Bill as that which had been taken by his right hon. Friend (Mr. Henley). He was not opposed to providing more efficient means than at present existed for appeals in criminal cases. On the contrary, he fully agreed that something ought to be done, but the Bill before the House was so objectionable in its details that he could not give his vote in favour of the second reading; and, therefore, following the example of hid, right hon. Friend, he should refrain from voting at all upon the question. As he viewed it, the Bill would open a court of appeal to the rich man, but shut it altogether against the poor man who happened to have been unjustly convicted of a crime. The man with plenty of money would always be able to find solicitors to advise him that he had a good ease for an appeal, and such appeals he apprehended would be chiefly brought before the Court. They were told that th4 must endeavour to make their criminal law analogous to the civil law, but he denied that the cases were at all parallel.

Question put, "That the word 'now' stand part of the Question."

The House divided:—Ayes 145; Noes 91: Majority 54.

Main Question put, and agreed to.

Bill read 2o


said, he would then propose to fix the Committee on the Bill for the following. Wednesday.


rose, and said that he had felt it to be his duty to support the second reading of the Bill, because he was favourable to the principle that there ought to be an appeal in criminal as well as in civil cases; but, after having read the Bill, he found so much that was objectionable in it, and that required very serious and attentive consideration, that he would express a hope that the hon. and learned Member would not attempt to carry the measure further during the present Session.


said, he hoped the hon. and learned Gentleman would proceed with it, although he believed that no measure that could be passed would carry out the object in view.


said, that if, as he understood, the principle of the Bill was that a new trial in criminal cases should be co-extensive with that in civil cases, it was an intelligible principle; the Bill in its details was free from objection, and there was no reason why it should not be proceeded with.


said, he felt himself in a difficulty. He had received so much encouragement and support from the right hon. Gentleman the Home Secretary and the Attorney General that he thought he should not be acting, as he ought, if he pressed the Bill now against their wishes. It was true that the House had by a large majority affirmed the principle of the Bill; but he was fully alive to the difficulty which a private Member had in carrying a measure through without the assistance and support of the Government. The Attorney General had declared his adhesion to the principle of the Bill, and if the hon. and learned Gentleman would give him his assistance in making the Bill as perfect as possible, he should not object to postponing the question until next Session.


observed, that the Home Secretary and the Attorney General having both coincided in the principle of the Bill, he hoped the former would give a pledge that next Session he would himself bring in a measure on the subject.


said, he could not undertake to do so. His hon. and learned Friend would allow him to observe, that what he had stated in the previous part of the discussion was, that there were grave objections to the Bill in its present shape, and that one of these appeared to him so grave and serious that he could never give his consent to the Bill—namely, that in criminal matters a person once acquitted by a jury might be put upon his trial a second time. He also went further, and observed, that he thought it would be reasonable to extend the right of appeal in criminal matters under certain guards and restrictions, but that those guards and restrictions would require the most careful consideration, and that he, for one, therefore, should not give a pledge to support any particular Bill until he saw that such guards and restrictions were properly provided.


said, if the Bill were a good one it ought to be proceeded with; but if, on the other hand, the Government did not approve of its details, they ought to have had the courage to oppose the second reading and save the House all this unnecessary discussion.


said, he was of opinion that the details of the Bill required so much consideration that it would be desirable to postpone it till another Session. At the same time he congratulated the House and the country upon its principle having been affirmed.


expressed a hope that the hon. and learned Member for Wexford would proceed with the Bill, and name the following Wednesday for its committal.


said, it was impossible to proceed further in the present Session with a Bill which involved such grave and serious questions.


stated, that he was prepared to adopt the suggestion of the right hon. and learned Attorney General; but if the beaten party were anxious to have a division on the question he was prepared to take it.


said, he thought that the House had been treated unfairly by the Government in supporting the second reading of a Bill which they admitted was impracticable as it stood.

Motion made and Question put, "That the Bill be committed."

The House divided:—Ayes 129; Noes 112: Majority 17.

Bill committed for this day three weeks.