Commons Sitting of 15 March 1865

MINUTES.
PUBLIC BILLS—Ordered— Chelsea Bridge Toll Abolition.
Second Reading—Metropolitan Main Drainage Extension* [73].
Withdrawn—Juries in Criminal Cases [24].

JURIES IN CRIMINAL CASES BILL. [BILL 24.]

  SECOND READING.
  Order for Second Reading read.
  SIR COLMAN O'LOGHLEN, in moving the second reading of Juries in Criminal Cases Bill, said, the measure might be described as a chapter of the proposed digest of the unwritten law, and would introduce a very desirable improvement in our present judicial system. The law had hitherto fluctuated with respect to the power of Judges to discharge juries who could not agree to a verdict in criminal cases. In the days of Lord Coke it was considered that a jury once sworn in a criminal case could not be discharged under any circumstances until they had found a verdict. But in modern times Judges had assumed a right to discharge juries in those cases where it was found they had been locked up for a sufficient period, and that they could not agree upon their verdict. The right of the Judges to do this was questioned in the Court of Queen's Bench in
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  Ireland in the case of "The Queen v. Lynch and Conway," which was tried in the year 1844. That was a case of murder, and the prisoner was twice tried. At the first trial the jury disagreed, and the Judge discharged them, merely because they could not agree. At the second trial the prisoners were found guilty; but he (Sir Colman O'Loghlen), who had acted as one of their counsel, contended that they could not he tried a second time, inasmuch as the jury had been illegally discharged on the former occasion. The point came on for argument on a writ of error before the Court of Queen's Bench in Ireland, who decided that a jury sworn in a capital case could not be discharged under such circumstances. The result was that the prisoners were allowed to go free, the Law Advisers of the Crown not thinking themselves justified in bringing the subject before the House of Lords on appeal. Since that time juries had not been discharged in Ireland in capital cases until they had been locked up such a time that it was proved by medical evidence that it would be dangerous to some one or more of the jurymen to keep them locked up for a further time. The authority of the case of "The Queen v. Lynch and Conway" had never been overruled by any judicial decision. In England, in the year 1849, a somewhat similar point was raised before the Court of Queen's Bench in the case of "The Queen v. Newton." The jury in that case were discharged, they not having been able to agree to a verdict; and before the prisoner was brought up for a second trial a writ of habeas corpus was issued on his behalf on the ground that the jury had been improperly discharged at the preceding trial. The Court of Queen's Bench refused to discharge the prisoner before the second trial should take place. At that second trial the prisoner was acquitted, and no further steps were taken in the matter. The point at issue, therefore, could not be considered as decided in that case. In the "Queen v. Davidson," in the year 1860, the same point was raised; and the Court decided that the Judge had the power to discharge the jury; but they intimated at the same time that they did not then mean of overrule the decision in the case of "The Queen v. Lynch and Conway," because the case before them was one of misdemeanor, while the other was one of felony. In the year 1861 a prosecution was instituted in the case of "The Queen v. Charlesworth," by

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  order of the House of Commons, for alleged bribery. One of the witnesses then produced by the Attorney General refused to give evidence; the Crown could not supply the omission which thus arose; and the Judge took it upon himself to discharge the jury, and adjourned the trial till the next assizes. The ease was argued before the Court of Queen's Bench, and the Court unanimously held that the Judge had power to discharge the jury, but were divided as to whether the Judge had in that case properly discharged the jury, two of them holding that he had, while one of them came to the opposite conclusion, and the Lord Chief Justice said that he had been unable to make up his mind upon the subject. On that occasion the Lord Chief Justice stated that "with regard to the right of a Judge to discharge a jury, it was impossible not to feel that the law was, to a certain extent, in a most unsatisfactory condition." He (Sir Colman O'Loghlen) believed that these circumstances afforded a perfect justification for his bringing forward the present measure. The Bill was a sort of digest, and would put into one short Act the whole law upon the subject of discharging or detaining juries in criminal cases. By one of its provisions a Judge would have the power of allowing refreshments to a jury after they retired; and an end would thus be put to the present barbarous law, that a jury in a criminal case, after their retirement, should be kept without meat or drink, or fire. He saw from the assize intelligence that a jury had recently been locked up for thirty hour3 without refreshment. Several Judges had repeatedly declared that such a relic of barbarous times ought to be got rid of. By the first clause in the Bill it was provided that in criminal cases a jury should not separate without leave, but that if they did separate that fact should not invalidate the verdict. The second clause provided that if a jury separated without leave, the Judge might, at his discretion, either continue the trial with the same jury or discharge them and swear in a new jury; and in either case might inflict such fines as he might think proper on all or any of the jurors who may have so separated without leave. The third clause provided that where a criminal case shall last more than one day the Judge might either keep the jury together or allow them to separate. According to the present state of the law a jury might be allowed to separate if the trial
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  lasted for more than one day in cases of misdemeanor, but not of felony. He could suppose cases of felony in which the Judge might, without any bad result, allow the jury to separate, and he was of opinion that the Judge should have that power. In Ireland in cities, the county cases were tried by statute in a court-house locally situated in the city, and the question had arisen, whether a Judge trying a county case in such a court-house could send the jury to an hotel in the city, because the hotel was out of the jurisdiction of the county sheriff. A trial had taken place last year in Dublin in which the jury were locked up for three or four nights in the court-house because the case was not a city but a county case. He would, therefore, give power to the Judge to direct that the jury might be locked up either in the court-house or in an adjoining hotel. The 4th and 5th clauses involved a principle which the House might scarcely wish to sanction—whether the Judge ought to have the power to discharge a jury, when once sworn, before they had retired to consider their verdict. He admitted that such a power was liable to abuse, and in political cases it had been abused; when, for example, Chief Justice Scroggs discharged the jury in order to enable the Crown to get up a better case against the prisoners. He would not contend for such a power; but he desired to submit the question to the House, and abide by their decision, whether it was proper that the Judges should have it. In the case of "The Queen v. Charlesworth," the Judges decided that they had the power, but that it ought not to be exercised without strong reasons. By the 5th clause the Judge was required in certain cases to certify the cause of the discharge to the Lord Chancellor. The 6th clause met the case of a Judge being unable to continue the trial, when he should propose that the jury should be discharged. The other clauses provided that after a jury had retired they might be discharged in case of the illness of one of the jurors; that in case of disagreement the Judge might discharge them if he thought fit after they had been kept together for a reasonable time; that there should be no appeal from the decision of the Judge; and that in all cases where the jurors had been discharged the accused might be tried again. The only objection that he could conceive against the Bill was that it was of a declaratory nature, but he did not think that was any reasonable objection to the

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  Bill, and he begged to move its second reading.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir Colman O'Loghlen.)
  THE SOLICITOR GENERALsaid, he regretted that he could not assent to the second reading of the Bill, and hoped that his hon. and learned Friend would be content with having made his statement, and would not press the Bill to a second reading. His hon. and learned Friend said that this Bill was to some extent a digest of the law relating to jurors in criminal cases. But he (the Solicitor General) begged to say that it had no pretensions to he called a digest, for there were a great many points of the law relating to jurors that were not touched upon at all. A digest of the law relating to jurors would have to deal with their qualifications, the mode of summoning juries, and a number of other questions of great importance, upon which the Bill did not touch. With respect to so much of the Bill as was declaratory, he could not help thinking that his hon. and learned Friend himself had stated strong objections. His hon. and learned Friend was opposed to unnecessary legislation, and, no doubt, where the law was settled, the multiplication of Act3 of Parliament was mischievous. Now, there were many cases contemplated in this Bill with regard to which declarations were not at all required. They did not want a declaration that a Judge had power to fine jurors, or that jurors might be discharged in cases of illness, or that if a jury could not agree the Judge might discharge them, or that where a jury was discharged the trial should be held to be null and void. All these declarations were quite unnecessary, and therefore mischievous. But with respect to those portions of the Bill which were not declaratory, there were also some serious objections. The Secretary for the Home Department had thought it his duty to consult the Chief Justices with regard to the provisions of the Bill, and they were both opposed to them. There was one provision which might possibly be salutary—namely, that contained in the 7th clause, to the effect that after a jury in a criminal case should have retired to consider their verdict, it should be lawful for the Judge to order them reasonable refreshment. If that provision were adopted in civil as well as criminal cases, he (the Solicitor General) was inclined to think it would be salutary,
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  and he thought that his hon. and learned Friend would be well advised to withdraw this Bill and confine his attention to a measure which should embody that provision. As to providing for the case of a jury separating without leave, as the Chief Justice of the Queen's Bench had remarked, that was a case which had never yet arisen; so with respect to a Judge having a fit during a trial, that case had never arisen, and, if it should, there would not be the slightest difficulty about the matter, for, beyond doubt, a new trial would take place. His hon. and learned Friend's Bill would give the Judge power to allow the jury to separate in cases of felony or treason which should last more than one day. He (the Solicitor General) was not quite certain that it would be desirable to intrust the Judges with that power. Every one believed that the Judges in our time always acted from the best possible motives, but there might be cases in which such a discretion in the hands of the Judge might not be well exercised; and he was not, as a rule, in favour of giving to the Judges more power than they now possessed. The power to allow the jury to separate, or go to different hotels, where they might, perhaps, converse with other persons about the case would be one which it would be hardly safe to confer. It was better that the jury in such cases should be kept together, though at some inconvenience to themselves. He would next refer to Clauses 4 and 5. Clause 4 especially raised a grave constitutional question. It was to the effect that after the party accused has been given in charge to a jury on the trial of any criminal case, and before the jury have retired to consider their verdict, it shall be lawful for the Judge to discharge the jury then impanelled if the Judge shall consider that a case of evident necessity for such discharge has arisen, or shall deem it right for the purposes of justice to order such discharge. It would be highly inexpedient to invest the Judge with that power. There had been times when Judges were under the influence of the Crown, and when this power was exercised in a manner most injurious to the subject. He might refer to the case of Sir John Fenwick and Mr. Whitehead, where the parties were put on trial for treason and the case of the Crown was not proved, and where Chief Justice Scroggs, to give counsel for the Crown further opportunity of proving their case, discharged the jury, and the

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  prisoners were again put on trial and convicted. That practice was not uncommon before the Revolution, but it was disapproved of by Lord Hale and other very eminent Judges, and was not the practice of recent times. No doubt it would be convenient for the Law Officers of the Crown, but it would be extremely dangerous to the subject, and was a power that ought not to be exercised. His hon. and learned Friend was not correct in stating that in the case of the Queen v, Charlesworth, the Court of Queen's Bench had decided that the Judge had power to discharge the jury. In that trial a witness did not appear, and Mr. Justice Hill, thinking that he had been tampered with, took upon himself to discharge the jury. The case came subsequently before the Court of Queen's Bench, and his hon. and learned Friend was not correct in saying that the Judges decided that they possessed the power. The sole question decided was that the jury having been discharged, rightly or wrongly, the defendant could not say that he had been acquitted. Two of the Judges thought it clearly wrong to discharge the jury; another thought it was right, and another doubted; but the point upon which all were agreed, was that Mr. Charlesworth could not avail himself of the matter so as not to be tried again. It would be better to leave this very difficult question alone. He ventured to predict that it was a power which very few Judges would ever take upon themselves to exercise again; but if it should be exercised under peculiar circumstances, let it be exercised on the responsibility of the Judge. If they made it law by a statutory enactment it would become the ordinary course of proceeding. Whenever a case for the Crown was breaking down, the counsel for the Crown would apply to the Judge to discharge the jury for the ends of justice. If such an application were made, the Judge might say the Legislature gave him the power to grant it for the promotion of the ends of justice, and he might think the counsel for the Crown should have another opportunity for bringing forward their case. The proposal was open to a grave constitutional objection, and he (the Solicitor General) was opposed to it. Clause 5 would follow Clause 4; but, as Clause 4 was objected to, Clause 5 was unnecessary. The following was the opinion of the Chief Justice on this subject:—
  "The power of discharging the jury might be exercised in a case about to fail, and a man might
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  be twice put upon trial contrary to the fundamental principles of the criminal law."
  As the Bill was open to so many objections it was not desirable to press the second reading, and he hoped that his hon. and learned Friend, to whom they were indebted for bringing on this discussion, would take the same view of the question. He suggested to his hon. and learned Friend to confine himself to the smaller enactment containing the provisions he (the Solicitor General) had indicated, and to withdraw the Motion for the second reading of this Bill.
  MR. DARBY GRIFFITHsaid, he supposed the observations of the Solicitor General would be conclusive as to the fate of the Bill, but there was a point in connection with the subject to which he wished to direct attention, and that was the treatment which juries received with respect to payment of their expenses. Common juries hitherto had been treated in the most barbarous manner. They were kept without food, fire, and light, until they had agreed upon their verdict, and if they could not agree, the practice used to be that they were drawn upon a hurdle to the border of the county and there dismissed, and we did not give them the least compensation for attending in criminal cases. He had been lately in a court where the Judge had remarked that barristers and solicitors, prosecutors and witnesses, and all the officials connected with the carrying on of a trial were paid except the jurors, who received nothing at all. [Mr. HUNT: The Sheriff?] That was quite a different thing. The sheriff was supposed to seek his office on account of the dignity and importance attached to it, and at least was not of that class of life to whom a small expense was an object, but the jurors came from the same class as the prosecutors. And, with respect to the sheriff, he begged to say that he had shown his sympathy with that officer, by exerting himself for the abolition of javelin men and such paraphernalia, and thus reducing the expenses to which he had been subject. He hoped, as the Solicitor General was willing that reasonable refreshment should be given to jurors, that the question of remuneration for them would be also favourably considered, as it came within the same category.
  MR. LONGFIELDthought it would be unwise to press this Bill after the declaration that had been made by the learned Solicitor General. This Bill was not a

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  digest, as the learned Solicitor General had assumed, nor was the Bill introduced as such, but merely to remedy certain defects which existed in the present jury system. He was able to confirm the statement of the hon. and learned Baronet, that owing to the uncertain state of the law upon this subject, two of the most atrocious murderers that were ever convicted in Ireland, were discharged after conviction. Judge-made law and Judge-made practice were most unsatisfactory things, and this Bill sought to remedy it by a declaratory enactment. He thought it was objectionable that it should be left to the Judges to decide whether they had or had not certain powers with reference to juries.
  Motion for Second Reading, by leave, withdrawn.
  Bill withdrawn.

CHELSEA BRIDGE TOLL ABOLITION.

  LEAVE. FIRST BEADING.
  SIR JOHN SHELLEYmoved for leave to introduce a Bill for the purpose of abolishing the toll taken on foot passengers passing over or on Chelsea Bridge. The subject, he said, was not a new one, and he thought that when the Bill came on for a second reading he should be able to show that the circumstances in favour of the abolition of the toll were stronger now than they were in 1858.
  Bill to abolish the Toll taken for Foot Passengers passing over or on Chelsea Bridge, ordered to be brought in by Sir JOHN SHELLEY, Mr. LOCKE KING, and Mr. LOCKE.
  House adjourned at half after One o'clock.