SECOND READING. (Hansard, 20 February 1867)

§ MR. RUSSELL GURNEY
, in moving the second reading of this Bill, the object of which is to remove certain defects in the Administration of the Criminal Law, said, it contained one or two provisions involving some degree of novelty. The first of these provisions was to this effect—that wherever any bill of indictment was preferred to any grand jury against any person who had not been committed to custody, or bound by recognizance to answer such indictment, and which indictment was ignored by the grand jury, or, being found by them, the accused should be acquitted thereon, and the Court which tried it should think it had been preferred without reasonable cause, then the Court should be empowered to order the prosecutor to pay the just and reasonable costs incurred by the accused. Such a provision would tend to check prosecutions instituted to extort money or from some other improper motive, and it would render it unnecessary for the accused to have recourse to a civil action for redress in respect of a vexatious prosecution. It sometimes happened that when a magistrate had dismissed a criminal charge the prosecutor still persisted in going before a grand jury, and probably on his own evidence obtained a true bill; but when the trial came on before the petty jury, his counsel got up and said there was not evidence to justify his proceeding further 679 with the charge. The second section of this Bill would meet cases of that kind. Again, the Bill also proposed to enforce the attendance of witnesses whose evidence was material to establish the case of the prisoner, and to provide for their subsequent remuneration. Such powers already existed in regard to the attendance and payment of the witnesses required to prove the prisoner's guilt, and for the duo administration of justice there should be a similar provision in regard to the witnesses required to prove his innocence. There were introduced into the Bill such checks as would prevent the abuse of this privilege. He also proposed, that when the case for the prosecution was closed before the magistrate, the prisoner, after he was asked whether he had anything to say in his defence, should also be asked whether there were any witnesses he wished to have called. He had known cases in which a prisoner had been committed for trial without his witnesses being called, owing to his ignorance of the forms observed before a magistrate. The prisoner's witnesses, when called before a magistrate, would be bound over to appear at the trial; and the Bill proposed to give the Judge the same power of directing the expenses of those witnesses to be paid as he had in directing the expenses of the prosecution to be paid. The only objection urged against the Bill was that it would involve great expense; but when it was recollected that the people of this country paid millions to secure a due administration of justice, he did not think such an objection ought to carry with it much weight.

§ MR. HURST
said, he did not oppose the second reading, but thought that there were some provisions in the Bill which if allowed to remain in it should lead the House to reject it. He alluded particularly to the principle, introduced for the first time in such cases, that the cost should depend on the result of the prosecution. As the Bill stood he thought it would be unworkable. If bills of indictment could be got behind the backs of accused persons by going before grand juries, the best remedy was to do away altogether with grand juries, which had become in the present state of the law not only useless but an incumbrance to the due administration of justice. He had hoped that this 680 Bill would have contained a provision to that effect. As to the proposal that prisoners' witnesses should be paid, the Bill went too far; and it would be unfair for the prisoners' witnesses to be paid while those for the prosecution were not. The Judges' power of directing the payment of the costs of prosecutions required to be enlarged—as, for example, in the case of prosecutions for misdemeanor, and for attempts to obtain money or goods by false pretences. Trusting that the Bill would be amended on these points in Committee, he did not think it necessary for him to add anything further.

§ MR. DENMAN
said, he agreed that the practice relating to allowing costs for the expenses of prosecutions required amendment. The legislation on this subject was by no means consistent, and had taken place in the most anomalous and accidental way. By various Acts of Parliament costs were allowed in some cases of felony and misdemeanors, but there were many other criminal cases in which the court could not give costs, and this was a favourable opportunity of dealing with this point. As to the Bill itself, it was well worthy the attention of the House, for nobody had more experience of the working of the criminal law than the learned Recorder of London. For the purposes of that measure it ought not to be assumed that grand juries would be abolished; and as long as they existed, especially in that metropolis, there would be a danger of malicious prosecutions. In such circumstances the Judge at the trial should have power to prevent an innocent man from suffering in pocket. Guarded as it was by that Bill, the provision respecting the payment of prisoners' witnesses deserved a favourable consideration, though he must not be considered as pledging himself to all the details of the clauses proposed. The clause, enabling persons summoned to serve on juries in any civil or criminal proceeding to make a solemn affirmation in lieu of taking an oath, when they declared that according to their religious belief the taking of an oath was unlawful, would remove a great scandal from the administration of justice. He congratulated the House that a Gentleman of known Conservative principles had at length come forward to legislate in favour of liberty of conscience in such a matter. If any one on that side of the House had proposed a similar measure, there would probably have been a loud outcry against the pro- 681 posal, as one of a Radical tendency. On the whole, with some alterations which would be necessary in Committee, he thought this was a desirable Bill.

§ MR. WALPOLE
agreed that the Bill ought to go to a Committee of the House, and suggested a distant day should be appointed for the purpose to give time to hon. Members to prepare their Amendments.

§ MR. RUSSELL GURNEY
was ready to accede to the suggestion of the right hon. Gentleman. There were many things which he should have liked to have included in the Bill, but he had omitted to insert them in order to secure unanimity on certain points included in the Bill.