SECOND READING. (Hansard, 20 June 1860)

§ MR. DENMAN
, in moving the second reading of this Bill, explained that its object was to assimilate the proceedings on trials for felony and misdemeanour to those on trials at Nisi Prius, as far as related to the regulation of addresses to the jury. Its object would be more easily seen if the House would permit him in a few words to review the successive amendments of the law with regard to criminal procedure, and the facilities allowed to prisoners for their defence. It was only during the last century that a prisoner had been first allowed to examine witnesses upon oath. The denial of that right was an anomaly which had existed for centuries, and the strongest reasons given for its continuance were no better than this—that if the witnesses were not examined on oath they would be "able to speak more largely and beneficially for the prisoner." It was not until the reign of Queen Anne that an act was passed to allow prisoners to examine witnesses upon oath. After that, even down to the year 1836, the state of things remained anomalous and strange; for whereas in cases of misdemeanour prisoners had always been able not only to call their sworn witnesses but to employ counsel to argue their cases before the jury, in cases of felony it was not till 1836 that a Bill brought in by the hon. Member for Dumfries was carried to allow counsel to be heard for prisoners. That was resisted for a long time by Judges and other lawyers of great authority. Lord Lyndhurst was one who opposed it at first, though he afterwards became converted; however, the law was at length altered, and a great amendment it had proved. It was curious to remark that before 1836 the offence of treason as well as that of misdemeanour stood upon a different footing from cases of felony, for by an Act of William and Mary the prisoner on his trial for treason had a right to call upon the Judge to assign to him any two counsel whom he chose to name. By the construction of that Act, which had prevailed almost ever since it was passed, a prisoner in a case of treason had also a further advantage, for it was held that his counsel might not only open the case for his defence, and then call evidence, but comment afterwards on that evidence, and set right anything that might have been set wrong 745 in cross-examination by the prosecuting counsel, and so leave his case for the prosecuting counsel's reply and the summing up of the Judge. Such had been the law in cases of treason ever since William III., and at first a still more liberal privilege was given, because two speeches were allowed to be made by each of the prisoner's counsel, namely, before and after the witnesses were called. But in trials at Nisi Prius on the Civil side, until 1854 what was the state of the law? The plaintiff's counsel might open his case, and then call witnesses; and then, if the defendant did not call witnesses, the counsel for the plaintiff had no opportunity of speaking a second time; but if the defendant's counsel did call witnesses then the plaintiffs counsel might reply, while the defendant's counsel could only speak once, namely, in opening his case. That gave an unfair advantage to the party who had the last word, the other party not being permitted to sum up his own evidence. The Commissioners for the amendment of the law therefore recommended an alteration; and, in 1854, an Act was passed, of the working of which they had now had six years' experience, by which, in Nisi Prius trials, if at the close of the statement of the plaintiff's case the counsel for the defendant did not announce his intention of calling witnesses, the counsel for the plaintiff was allowed to address the jury a second time after his own witnesses had been called, to sum up their evidence, and the defendant's counsel had the last word; but if the defendant's counsel chose to call witnesses, the defendant's counsel made a second speech after the defendant's evidence had been produced, commenting upon the defendant's case, and the plaintiff's counsel then replied in order to explain and sum up what had been said by his own witnesses. The effect of the new practice had not been to lengthen trials in any considerable degree. On the contrary, a great deal of time had been saved through the prevention of much fruitless cross-examination of witnesses, as well as of those lengthened anticipatory observations which counsel, not having the right of reply, were obliged to address to the jury, in order to meet every conceivable turn which the case was likely to take. From not being allowed to sum up the whole of the evidence at the close, the prisoner's counsel were frequently deterred from calling important witnesses, merely because they could not tell what might be the effect upon the jury if these witnesses 746 were shaken on some immaterial part of their testimony. Such a state of things operated most prejudicially to the due administration of justice, and the Judge was sometimes compelled by it to take upon himself the functions of an advocate. The evil would be remedied by conceding to counsel on both sides the right of being heard after as well as before they adduced their evidence, in the same order as was now adopted with so much advantage at Nisi Prius. He believed he had sufficiently presented the case without going into all its details. He considered it to be a very strong one, and the only point he would further refer to was the principle which some contended for—namely, the right of the counsel for the prisoner always to have the last word; but as that was a point which had been fully argued during the discussion of the Prisoners' Counsel Bill in 1836, when a sort of compromise was entered into, he saw no reason for further discussing the matter in relation to the present Bill. He left the Bill in the hands of the House, and he hoped they would pass it as an improvement upon the present law.

§ MR. HARDY
said, he did not intend to oppose the Motion, although he was not so sanguine as the hon. and learned Mover, about the benefits to flow from this measure. There was not a perfect analogy between civil and criminal cases, counsel being generally employed on both sides in the former class of cases, while in the vast majority of the latter the accused was undefended. The unfortunate prisoner who had no counsel was placed at a great disadvantage by his own unfitness to cross-examine witnesses; and to prevent injustice from being done him, the Judge had sometimes to put himself in the invidious position of being, as it were, his advocate. When the counsel for the accused was deterred from calling witnesses, it was generally because he had serious misgivings as to the value of their testimony, and the mere right of making a speech would not enable him to prop up a bad case.

THE SOLICITOR GENERAL
said, he thought the House would do well to assent to the second reading of the Bill, though he must admit that there was considerable force in the argument of the hon. Gentleman opposite (Mr. Hardy), that the analogy between the proceedings in civil and criminal cases was not quite so close ns was imagined by the hon. and learned Gentleman who moved the second reading 747 of the Bill. But although there might be objections to the details of the Bill, yet even that was no reason why they should not apply a principle that helped to elucidate the truth in matters affecting property to the certainly not less important interests of life and liberty. With regard to the objection that inconvenience would arise from prolonging the duration of trials, he believed the House would place very little stress upon it when the object was to secure the more complete administration of justice. His own opinion was that the provision sought to be made by the Bill would prove most advantageous, and he should vote for the second reading on the general ground that the learned Commissioners on whose recommendation the change was made in civil procedure based their recommendation upon the conviction that the change was required to ascertain the truth, and it followed in the main that what was expedient in one case for the attainment of that end would be found expedient in the other.

SIR GEORGE LEWIS
said, he was of opinion that when the prisoner's counsel called witnesses he should have the right to a second speech. At present the prosecuting counsel had both the first and the last word; and if the prisoner's counsel were not permitted to sum up, and explain any defect observable in the manner in which a witness gave his testimony, he would probably be induced to abstain from calling witnesses at all. His own experience in his present office taught him that prisoners having defences that might fairly be submitted to the jury were deprived of the benefit of them, from the fear lest one of the witnesses might break down, and therefore the counsel employed refrained from calling him. If the defending counsel could make a second speech his motive for withholding the prisoner's case from the Court would often be removed. It was, however, a question whether the prosecuting counsel should be allowed a second speech. Where the prisoner was undefended he did not think that was at all necessary. The witnesses for the prosecution in that case would not be cross-examined; and, therefore, if anything in their testimony required explanation, the Judge could point it out to the jury.

MR. MONTAGUE SMITH
said, he should support the Bill, as he thought it most important that after the evidence had been given, and perhaps shaken in cross-examination, the prisoner's cousel should 748 have the opportunity of summing it up and explaining the discrepancies. He thought, however, that where there was no counsel for the prisoner there was no reason why the prosecutor's counsel should have a second speech. Perhaps in the case of prisoner's counsel the Judge might have a discretion as to whether the second speech should be made or not. He did not support the Bill, because he thought that in the existing state of the law the Judges failed in their duty of holding the scales of justice fairly and impartially, but because he believed that the Bill relieved the Judges of a certain responsibility now thrown upon them, but which they ought not to bear.

§ MR. SOTHERON ESTCOURT
said, he thought that if this Bill was passed, the Court would be bound in all cases to assign counsel to a prisoner, which would so lengthen the proceedings at quarter sessions as to render necessary the appointment of stipendiary chairmen in all counties.

§ MR. COBBETT
said, he believed that the Bill would work with great advantage in many cases to both the prosecution and the prisoner. He should vote for the second reading, and he trusted his hon. and learned Friend would accede to any modification of the measure which might be deemed necessary, when the House went into Committee.