SECOND READING. (Hansard, 15 May 1861)

§ MR. BUTT
said, that as he understood the measure was to be opposed by the right hon. Gentleman the Home Secretary, it would be more convenient then to state its provisions, together with the grounds on which they were supported. The question as to the necessity of instituting some tribunal to review erroneous verdicts in criminal cases was not new to that House, as on several occasions the subject had been introduced and met with the approval of hon. Members, but had been generally postponed at the request of the Law Officers of the Crown. Early in the present century Sir Samuel Romilly introduced a Bill identical in principle with the one now under consideration. In 1844 the hon. and learned Member for East Suffolk (Sir Fitzroy Kelly) following in the footsteps of Sir Samuel Romilly, introduced a similar measure; but that Bill, on the second reading, at the suggestion of Sir James Graham, then Home Secretary, was postponed to the next Session, and nothing more was hoard of the question for some years. But in 1848 and 1853 measures on this subject were again submitted to Parliament, and again postponed. In 1858 the hon. and learned Member for Wexford (Mr. M'Mahon) and himself, acting in concert, brought forward a similar measure, the principle of which was affirmed by a vote of 145 to 91, although it, unfortunately, was not allowed to become law. The present Bill embodied various suggestions thrown out in the course of previous debates. It sought to make no innovation in the law and constitution. New trials were granted in certain classes of criminal cases. The object of this Bill was to render that remedy more general, and extend it to cases in which, above all others, it was most needed. The judgments of inferior courts were liable to be reviewed upon writ of error by the Court of Queen's Bench; but that remedy was reduced to a mere matter of form, and did not touch the substantial miscarriages of justices which sometimes took place. Pro- 2068 ceedings could also be removed from inferior tribunals to the Court of Queen's Bench upon writs of certiorari. Moreover, convictions for misdemeanour before the Lord Chief Justice of the Queen's Bench and a Middlesex jury could be set aside either upon points of law or fact. If, however, the conviction was one for felony no new trial could be obtained, on account of an absurd and unreasonable distinction which ought not in these days to be obtained. Surely, if a new trial was given, where the penalty was fine or imprisonment, it ought not to be denied where the punishment was death or transportation; more especially as in the trial of the two eases the tribunal was the same and the rules of evidence also the same. The Bill, therefore, proposed to remove that anomaly by granting to prisoners tried and convicted of felony in the Court of Queen's Bench the same right of appeal as was enjoyed by persons convicted of misdemeanour. It also propose to extend the writ of certiorari to case in which it was not now usual to grant it, and to enable the Court of Queen's Bench, upon a proper case being made, to send that writ to any court of criminal jurisdiction in the kingdom in order to have its verdict reviewed. Everybody must feel that there were instances in which it was most desirable that there should be an opportunity of having the judgment of a criminal court reviewed, not by the discretion of the Secretary of State, but a judicial tribunal administering the law upon settled principles. He knew that it would be said that the discretion of the Secretary of State to grant pardons supplied the place of a power of appeal; but he would ask, was it right that an innocent man should be placed in the position of a pardoned criminal? and, also, was it right that the Secretary of State in his private office, should alone have the power of reviewing a sentence? It might also be urged that erroneous convictions were very few, but he doubted much whether they were not far more numerous than was generally supposed; for, at present, there were no means for an improperly convicted person to obtain a re-hearing. In the Report of the Criminal Law Commissioners it was stated that in one year in no less than nine criminal cases there were wrong decisions at the Central Criminal Court, and some of the persons at least would have been executed, but for the exertions of Mr. Wyld, then Sheriff of 2069 London, and who watched all the cases. He might also instance the cases of Mr. Barber, and Lord Dundonald as admitted instances of erroneous convictions. In the latter case Lord Dundonald was tried with others for a misdemeanour, and applied for a new trial, but there was an old rule of law that where several persons were tried together for a misdemeanour no one of them could obtain a new trial without all joined in the application, and, as his co-defendents did not join with him the application was refused. In the case of Dr. Smethurst there was a conflict of scientific evidence as to the administration of poison. In that case the Secretary of State interfered, but it would have been more satisfactory, although he (Mr. Butt) did not believe that Dr. Smethurst administered poison to the deceased lady, it would have been better for all parties if there had been a new trial, when the scientific evidence given upon the first occasion could have considered and reported upon by the highest authorities. In the recent case of Mr. Hatch a power of appeal would have been of great importance, as the terms upon which he obtained his pardon—the conviction as perjurers, of his accusers, placed him in a most difficult position In the case of Mr. Kirwan, who was tried for the murder of his wife at Ireland's Eye, near Dublin, whom he had himself defended, the Lord-Lieutenant had yielded to the popular feeling in that person's favour by commuting the capital sentence to one of transportation for life—a compromise that satisfied no one, and could not be consistent with justice. Those instances showed the, uncertainty of the present system, and the necessity for some such law as he now proposed. When a man was convicted for murder, he was asked by the Judge what he had to say why sentence should not be pronounced upon him, and if he said that a witness had sworn falsely, and he had the moans of proving that statement, the Judge was bound to tell him that that was no reason for deferring the sentence. The same with respect to an error in the reception of evidence on a point of law; but if he could point out an error in copying the indictment, and that a clerk had put the word "for" instead of "of" our Sovereign Lady the Queen, that would be a good reason for deferring the sentence. The fact was that a man's property was much more carefully guarded in this country than his life and liberty, and he could only ac- 2070 count for that by the fact that the Members of the Legislature were not so liable to be called on to answer for matters which would involve a restriction on their liberty, as they were to answer a claim made upon their estates. If they were, depend upon it they would have had a criminal appeal long before. He might be asked whether he intended to give a power of appeal in cases of acquittal? He did not propose to give such a power, and the Home Secretary could only pardon—he could not hang a man whom the jury had acquitted. Neither did he apprehend that there would be such an immense amount of additional business caused by this Bill as would overwhelm the Courts, as no certiorari would be granted without sufficient grounds being shown. He thought that both experience and authority were in favour of the Bill which he now asked the House to read a second time.

SIR GEORGE LEWIS
said, that among the various maladies with which their Wednesday Legislation was afflicted, it seemed to him that the Criminal Appeal Bill held a prominent place. He could have wished that it belonged to the class of maladies called agues, which were intermittent, rather than to that of fevers, which were continuous. Last Session substantially the same Bill had been introduced and undergone a lull discussion, and was then negatived without a division, and he really thought, after that circumstance, it was hardly necessary to introduce it again this Session. The object of the measure was to make the trials of all treasons and felonies removable by certiorari, and to give power to the superior Courts of granting new trials. That was the principle of the Bill of last Session, and no fresh light had been thrown on the subject by the speech of the hon. and learned Member, or by the provisions of the measure itself. The hon. and learned Member had not had the boldness to declare that innocent men were frequently found guilty in this country. [Mr. BUTT: I do.] All he (Sir George Lewis) could say was, that upon the strongest evidence of the Judges, of persons acquainted with prisoners and convicts, it was clear that such cases were of very rare occurrence. The converse, however, did frequently occur. There 2071 was a general tendency in our laws to favour the prisoner, but if such a step were taken as was now proposed, the inevitable result would be to diminish that merciful and forbearing feeling which was an honourable distinction of our criminal law. He denied that the cases of erroneous conviction were numerous, but upon all points of law the statute book afforded a complete remedy. There was no reason to suppose that a Judge ever refused to reserve a point where there were sufficient grounds. But the real question was whether they could assimilate the civil and criminal law by giving a prisoner power to appeal in cases of treason and felony. The hon. and learned Member said he wished to assimilate felonies with misdemeanours; but that involved the whole question in dispute. At present the power of appeal was only exercised when persons had the means of paying costs. The appeal given by the Bill would be a mere mockery unless the prisoner had the means of paying the costs; and it would be necessary to saddle the public with the costs of all second trials. Unless that were done the Bill would be mere waste paper. And if the costs of the second trial were paid by the public every prisoner would appeal, on the chance of obtaining an acquittal from the first conviction. If the Bill passed it would in many cases be very difficult to secure the attendance of witnesses on the second trial, while all the advantages of the present system of criminal trial would be forfeited. The hon. and learned Mover of the Bill had referred to several cases; among them is the case of Dr. Smethurst. It had become a stock case, hut it really afforded no argument in favour of a criminal appeal. That process was intended to remedy defects of criminal procedure; but the real ground of the uncertainty in Dr. Smethurst's case was the fallibility of medical science. It was an obscure case of suspected poisoning. There was a time when scarcely a Sovereign in Europe, or any person of rank, died without the operation of poison being suspected; and even with all the modern improvements of medical science it was still very difficult to form a judgment in cases of suspected poisoning. If there were twenty appeals in criminal trials it would not meet the difficulty; the medical evidence might still mislead the tribunal. In the case of Mr. Hatch the hon. and learned Gentleman stated he (Sir George Lewis) had advised a prosecution of the 2072 chief witnesses for perjury, and that that was but an imperfect remedy in that case. He differed from the hon. and learned Gentleman; he believed Mr. Hatch stood a much better chance upon the indictment he preferred for perjury, as both himself and his wife could be examined as witnesses; on an appeal Mr. Hatch must have appeared as a prisoner at the bar. The jury, on the trial for perjury, heard the whole case of the opposite party, and its decision was in favour of Mr. Hatch. He was at a loss to see how this ease supported the argument in favour of a criminal appeal. It told, he thought, the other way. The case of Mr. Kirwan was a case in which the Lord Lieutenant of Ireland, having some doubts as to the conclusiveness of the proof, gave, as was usual in such cases, the benefit of the doubt to the convict, and commuted the sentence to transportation. Of course it was difficult to defend the logic of a commutation of sentence, because it was said that either the prisoner was guilty or innocent. If innocent he ought to be pardoned, and if guilty the sentence of the Judge ought to be carried out. He did not think, however, that that case, properly understood, afforded any argument for the establishment of a criminal appeal. There might be cases where the evidence was such that although the jury had convicted there was so much uncertainty that the Executive were unwilling to allow the law to be fully carried out. He was far from saying that Secretaries of State were infallible, but he believed every precaution was taken to avoid error in their decisions. The Judges were consulted, and every statement and representation was carefully considered. And it should be recollected that Courts of Appeal would themselves be liable to error. No alteration of the law would secure an absolutely infallible authority. The hon. and learned Gentleman had drawn one argument for a criminal appeal from Irish State trials. But if there were any cases in which a second appeal to a jury would be of doubtful benefit they were those in which political and religious feelings were involved. It was difficult to obtain evidence in such cases; it had sometimes been necessary to confine the witnesses in prison before the trial, and to send them out of the country afterwards. In such a state of things a new trial would place a great obstruction in the way of the administration of criminal justice, and might 2073 be made a justification of exceptional and stringent modes of Government. So far from the measure being a mere change of degree in applying the law of misdemeanour to that extent to the law of felony, it was in reality a most important change, it would effect a complete revolution in the administration of justice in this country; and considering that the Bill would be prejudicial to its best interests, he must move as an Amendment that it be read a second time that day six months.

§ MR. M'MAHON
stated the steps he had taken to procure the passing of a Criminal Appeal Bill, and said that as he received great support in the year 1859 he was justified in re-introducing the measure in 1860. On that occasion the right hon. Gentleman argued the whole question in a most masterly manner, and brought before the House the state of the law in almost every country in Europe; but he hoped on another occasion he would refer to the law of the United States, by which a criminal appeal was allowed. At the same time he quite admitted that the right hon. Gentleman had thoroughly exhausted the whole subject. He did not consider that Hatch's case was so clearly put by the right hon. Baronet as to be a conclusive argument against criminal appeal, because in that case the evidence of Plummer on the second trial could not be heard. The case of Tate, in the north of Ireland, afforded a strong argument in favour of the Bill. It would certainly have been more judicious to send Tate before another jury than to have discharged him. The case of the seven pirates tried before Baron Platt also afforded an argument in support of this measure. In that case the Judge, thinking there was no reasonable ground for doubt, refused to reserve a point raised on behalf of the prisoners, but the authorities at the Home Office required that the point of law should be reserved, and it was discussed before the Common Law Judges. The result was, that the twelve Judges who heard the arguments, with only one exception, decided that the judgment was wrong, and that the prisoners should be discharged. As however the Liberal party, who might be supposed most anxious for the liberty of the subject, gave no encouragement to any attempt at law reform, he should not trouble the House with another 2074 word on this topic so long as they remained in office.

§ MR. BUTT
, in reply, quoted the opinion of Chief Baron Pollock and other authorities to the effect that instances of innocent persons being convicted were by no means rare in this country, and intimated that he would not trouble the House to divide.