HC Deb 15 July 1861 vol 164 cc924-33

Order for Consideration, as amended, read.

MR. HENLEY

said, he rose move, as an Amendment of Clause 4, that the word "misdemeanour" be substituted for "felony." He held that in assimilating the laws of England and Ireland, where the law was more severe in one than in the other, the milder form ought to be preferred, unless there were peculiar circumstances which rendered severity necessary. The common law in England and Ireland made the offence of conspiracy to murder a misdemeanour. About 1795 or 1796 the Irish Parliament passed an Act making it a felony punishable with death. When the Irish criminal law was consolidated in 1829 the offence was re-enacted as a felony punishable with death. By the Bill it was proposed to make it a felony both in England and Ireland, and, instead of the punishment of penal servitude for life or a less period, at the discretion of the Court. It was necessary to consider whether there was anything in the state of Ireland to render it necessary to treat the offence in a way different from that in which it had hitherto been treated in England. Looking to the great diminution of crime in Ireland, they could not come to any other conclusion than that Ireland might very well be left with the same law which had always been found sufficient in England. In 1839, than which year the criminal returns of Ireland did not go further back, the number of persons accused of the offence of murder in Ireland was 286. With the exception of the years 1848 and 1849, when, owing to the terrible pressure of the famine, crime in Ireland did not diminish, there had been a gradual diminution. The number of persons accused of murder in Ireland fell to 92 in 1845. It rose to 179 in 1849. In 1853 it fell to 73; and in 1859 to 45. A more remarkable change in the criminal statistics of any country could scarcely be found. The crime with which the clause immediately dealt was conspiracy to murder, and solicitation to murder. In 1859 the number of persons accused of the crime of solicitation to murder in Ireland was nine, and in 1859 none. The number of persons accused of conspiracy to murder in Ireland was, in 1839, 25; and in 1859, 3. Taking the whole of the offences against the person, including manslaughter, the number of persons accused in Ireland was, in 1839, 898; and in 1859, 235. With this alteration for good, it could hardly be said that there was any special ground for the severity of the law. What was almost as satisfactory, the number of convictions was in most years more in proportion to the number of persons accused. Of the 286 persons accused of murder in Ireland in 1839, 32 only were convicted, and of the 45 accused of the same crime in 1859, 3 only were convicted. The proportion of convictions in England did not vary so much as many persons might think. In the English criminal returns the offence of conspiracy to murder was included under the term "misdemeanours," and, therefore, whether there were many or few persons accused of it could not be ascertained; but it might fairly be assumed that if there had been many some special notice would have been taken of the fact. In cases of felony the police had always exercised much larger and more arbitrary powers than in cases of misdemeanour. A policeman or constable, having a reasonable ground to believe that a felony had been committed, was justified in apprehending a person without a warrant, and would be held to be justified unless it was shown that he acted from some improper or malicious motive. There was a vast number of foreigners resident in this Metropolis. Nothing would be more easy than for a Foreign Minister who wanted to get hold of the correspondence of a foreign refugee to put it into the mind of a constable that such a man was mixed up in a conspiracy to murder. The constable, acting in good faith, would go into the unfortunate foreigner's house, apprehend him, and seize all his papers. The conspiracy might never have existed, but the papers having been seized the names of all the refugee's correspondents would be known, and persons in other countries would be implicated in political matters which otherwise would never have been found out. That was a great reason for not making the offence a felony unless there was an absolute necessity for it. He felt it so strongly that three years ago, when the question arose, under special circumstances, of making the change in the law of England, and after the Bill was read a first time, but before the episode occurred which led to its untimely end, he went to the Secretary of State and told him that unless he provided some guard against the action of the police he should vote against it in a further stage. The question was always cropping up. Somehow or another foreigners got hold of our constables. They had an example of it in the recent Kossuth business, and if a foreign Minister obtained the names of a refugee's correspondents that would perhaps be all he wanted. The refugee himself might not suffer, but his friends abroad might be subjected to all the inconvenience of being in correspondence with a man who had been obliged to flee his country. There might be inconvenience in making the change in the law of England, and he could see no necessity for continuing to make the offence a felony in Ireland. When the law was more severe in one country and less severe in the other, it was wise, in assimilating the law, to adopt the less severe form. He was glad to be able to acknowledge the courtesy of the hon. and learned Attorney General in bringing the subject on at a convenient hour. He was quite ready to take the opinion of the hon. and learned Gentleman as to the period of penal servitude. It was not the quantum of punishment to which he objected, but the inconvenience which might arise, and which he had endeavoured to point out. He hoped the Government would accede to the proposal which he begged to make—namely, to strike out the word "felony" in the fourth clause, and to insert the word "misdemeanour."

THE ATTORNEY GENERAL

said, he hoped the House would not be induced to adopt the Amendment. It would have been observed that to a clause which defined an offence, and attached upon conviction a punishment of considerable severity, the only objection of the right hon. Gentleman related to the character of the crime which, he contended, ought to be misdemeanour only and not felony. This objection was based on the assumption that if the offence were felony, the police would arrogate, or might be invested with certain arbitrary and summary powers, which might lead to injurious consequences, not so much to the individual accused, but, supposing him to be a fo- reigner, to persons with whom he might be in correspondence in other countries. For the purpose of enforcing that objection, the right hon. Gentleman had supposed a conspiracy between the Minister of the country to which the refugee belonged and the Government of Her Majesty; because the interference of the police in the way suggested, whatever effect it might have on the individual proceeded against, could be attended by no injurious consequences to his correspondents abroad, unless there existed an understanding between the foreign Minister and the Government of this country, which might lead the latter to abuse the information obtained through the agency of the police. He did not believe that any Government which could exist in England would lend itself to such conduct. It was important to bear in mind that the object of the present and of four other Bills which had already been before the House, was to consolidate the criminal law, bringing within the four corners of one enactment all the statute law bearing upon a particular class of offences, and now scattered through a great many volumes. Another object was to combine the assimilation and amendment of the statute law of England and of Ireland with its consolidation. But the law could not be assimilated without considering, in the first place, whether the law of the two countries was the same or different. If it was different, then the question arose whether the law of one country should be adopted in the other, or whether some alternation or change should be made, so as to bring about a new state of the law applicable to both countries. A considerable time ago conspiracy to murder was made by statute a felony in Ireland, punishable, on conviction, with death; and so it remained at the present moment. In England, on the contrary, it was a mere misdemeanour. It was obvious that the severe statute law of Ireland could not be applied to England; and hence it followed, if we were to have the same law for the two countries, that there must be applied to both countries some modification of the severity of the Irish statute. That modification was effected by the present clause, which, making the offence a felony, attached to it, not a capital punishment, but a punishment next in severity—that of penal servitude. There was a considerable body of authority for the clause. In the Bill relating to offences against the person brought forward during the Administration of the Earl of Derby, conspiracy to murder was dealt with as a felony; and in the Bill on the same subject subsequently laid on the table by the right hon. and learned Member for Dublin University, the late Attorney General for Ireland (Mr. Whiteside), the same course was pursued. In the Bill introduced into the House of Lords last Session, the same clause was inserted, and it remained after the Bill had undergone a very searching investigation by a Select Committee of that House. He could not see that there was any force in the objection of the right hon. Gentleman opposite. If they were to proceed upon the supposition that the Government of Her Majesty would lend themselves to the designs of a foreign Minister, he did not think the police, acting upon the instigation of the Government, would be particularly nice in their conduct whether conspiracy to murder were called a felony or a misdemeanour. Conspiracy to murder, as recent and unhappy experience had shown us, was an offence which might, not improbably, be committed in this country, either by foreigners acting alone or by foreigners in concert with Englishmen; and considering the conclusions—at times not very charitable to our feelings and sense of justice—drawn by Continental Government from the large and wide hospitality we afforded to refugees of every kind, it was worthy of consideration whether, when there could be no great or serious objection, we should not put our law in such a form as might relieve us from discreditable accusations. In 1858 the House seemed to adopt that view, because it approved a Bill which both changed the character of the offence and altered its punishment. The first reading of that Bill was carried by a large majority, but it ultimately failed, from circumstances which did not in any way affect the opinion expressed by the House, that such a change in the law was desirable. He hoped, therefore, that the House would not agree to the right hon. Gentleman's Amendment.

MR. WALPOLE

Sir, I wavered at first very much in my opinion as to this matter, but the more I have considered it the firmer has become my conviction that the view of my right hon. Friend is the correct one. My hon. and learned Friend the Attorney General seems to have forgotten the exact object of the Bill to which he referred. Its object was not to turn a misdemeanour into felony, but to make that an offence which the law did not reach before—namely, a conspiracy in this country to commit a murder abroad. It had nothing whatever to do with the question whether the offence of conspiracy to murder should be a misdemeanour or a felony. As to the authority to which my hon. and learned Friend the Attorney General has referred, I cannot see that that has much weight. The House has never yet given any opinion on the precise question which my right hon. Friend has now submitted to it. No doubt one object of these Consolidation Bills is to make the law of the two countries uniform, but in this particular matter this Bill neither consolidates nor assimilates—it alters the law of both England and Ireland. If you were consolidating the law, and took the law of Ireland, you would make the offence of conspiracy or soliciting to commit murder a capital offence, punishable by death; if you took the law of England you would make it a misdemeanour, omitting the offence where the murder is committed abroad. But you are altering the law of both countries, and the question you have to consider is what Amendment would be best. As regards Ireland, you have introduced this Amendment—that instead of the offence being a capital one, it becomes a felony, punishable by penal servitude; and in England, instead of being a misdemeanour, it becomes a felony, punishable by penal servitude. The question raised by my right hon. Friend is not whether the offence shall be the same in both countries of whether it shall be punishable by penal servitude; he and the Attorney General are both agreed as to that; but it is whether it shall be a misdemeanour or a felony. The difficulty arises from the mode in which under this Bill you enable the police to deal with this particular offence, for, in point of fact, you will—or, I will say, you might—by an abuse of authority enable a constable, without a warrant, to obtain information which, except for the allegation of that offence, he could not obtain. That arises entirely from the technical description of the offence as a felony. If it were a misdemeanour the police would have no power to ransack a man's papers without a warrant. I think that my hon. and learned Friend has missed the exact point submitted for consideration by my right hon. Friend, and keeping in view the extreme jealousy with which this House has always guarded against in- formation being obtained from any person which might be turned against him on a charge which dose not relate to the particular offence for which he is put on his trial, and seeing that there is nothing in this Amendment which will diminish the punishment or the means of proving the offence, I shall strenuously support the Amendment.

MR. CONINGHAM

said, he thought the House was under a very great obligation to the right hon. Member for Oxfordshire for having brought the matter before the House. When it was understood in the country what was proposed in this Bill there would, no doubt, be a very clear expression of opinion on it. The history of the Session had been so strange that scarcely any proceeding of the Government inconsistent with the principles professed by their followers would have surprised him, but he certainly was not prepared for such a proposal as that. He should give the right hon. Gentleman his hearty support, and he trusted that the Amendment would be carried by a large majority.

MR. AYRTON

said, he had given notice of his intention to move the omission of the clause altogether, but on grounds somewhat differing from those stated by the right hon. Gentleman opposite. The House was scarcely aware, he thought, of the nature of the offence indicated by the clause. It was limited simply to the offence of conspiracy, without any overt act whatever to carry the conspiracy into effect. That offence was purely one of intention; it was nothing more than the agreement of two persons to commit murder, though it might not be followed by any attempt to commit it, and though one of the parties might recede from, or even frustrate the agreement. In another Bill it was provided that any person inciting another to commit a felony should be punished as the principal felon. But was it right that a mere intention, followed by no overt act, should be put in the same category as an attempt to commit murder? That would be at variance with established principles of law, which recognized a great distinction between the two offences, and prescribed for the less offence only a less punishment. Not one of the Commissions which had been appointed for the consolidation of the criminal law had recommended the change, and it had never been heard of until the Emperor of the French required us to make it. Then came the proposal of the noble Lord at the head of the Government. It was true that the House allowed the Government to bring in the Bill on the subject, but it was negatived on the second reading, and the House preferred to risk a change in the Government rather than pass such a measure. Was that decision to be treated as nothing? Had any circumstances occurred in the country which rendered such a change necessary? He had heard of no such necessity; and it was not a sufficient reason to say that, with a different state of society in Ireland, a different law existed than that now in force here. It was due to the character and the honour of the House that if the decision of 1858 were reversed the step should not be taken hastily or inconsiderately, but that the House should declare that it had committed a great error in then refusing to assent to the proposal of the noble Lord

SIR GEORGE LEWIS

Sir I cannot recognize the reality of the fears expressed by the right hon. Gentleman (Mr. Henley) as to the arrangement which he supposes would be made between a foreign Minister and a police constable. My belief is that if any foreign Minister wished to employ a police constable for the purpose of discovery he would apply to the Home Office, and they would not be likely to lend themselves to any improper act of that sort. If the object simply was to search a man's house without a warrant, there are many felouies besides the conspiracy to commit a murder abroad which would afford an opportunity for the purpose. Therefore, assuming the sinister purpose which the right hon. Gentleman described, and that means were desired to carry it into effect, he would not be baffled even under the existing law. I understand the right hon. Gentleman does not object to diminish the punishment, and he does not propose to alter the clause except by substituting misdemeanour for felony, leaving all the rest of the clause as it stands. The difference would be that the prisoner would retain the advantages which he possesses in trials for misdemeanour, and there would be the difference in respect of searching his house. In that respect the alteration would be favourable to the prisoner; but I do not think the matter is worthy of any very lengthened contention, and I shall be quite prepared to concede the point.

MR. HENLEY

said, he never imagined that any Government would ever lend themselves to such a thing. Of course it would be done by the police.

Amendment agreed to.

THE ATTORNEY GENERAL

said, that the alteration having been made by the House, it would not be right to allow so severe a punishment to stand. He proposed that the words "for life" be struck out, in order to substitute a term of "not more than ten years, or less than three."

MR. AYRTON

said, the Amendment was satisfactory; it reduced the punishment, and made the offence a misdemeanour, which was the common law.

Clause, as amended, agreed to.

VISCOUNT RAYNHAM

said, that in Clause 43, he would move that the word "twelve" be substituted for "six". The effect of the Amendment was to give magistrates the power of committing to prison for twelve months in cases of wife beating.

Amendment proposed, in page 12, line 10, to leave out the word "six" and insert the word "twelve".

THE ATTORNEY GENERAL

said, the Amendment was one of a series which would, if agreed to, indicate that a considerable change had come over the temper of the House since the Amendment which it had just carried; for it would greatly augment the severity of the present law against aggravated assaults. The noble Lord, though proposing the increased severity, was, strange to say, actuated by a spirit of benevolence.

Amendment negatived.

VISCOUNT RAYNHAM

said, he would then move to omit the provision of fine and imprisonment in order to insert the following:— And whosoever having been twice convicted of any such offence as aforesaid shall afterwards commit any such offence shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be imprisoned in a common gaol or house of correction, with or without hard labour, for any period not exceeding three years, and if the said last mentioned justices shall so think fit, the person, if a male, so convicted, shall be once privately whipped with not more than forty-eight lashes.

Question, "That the word 'six' stand part of the Clause," put, and agreed to.

Another Amendment proposed, In page 12, line 11, to leave out the words 'or to pay a fine not exceeding (together with costs) the sum of twenty pounds, and in default of payment to be imprisoned in the common gaol or house of correction for any period not exceeding six months, unless such fine or costs be sooner paid.'

Question "That the words proposed to be left out stand part of the Bill," put, and agreed to.

Bill to be read 3° this day.