§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 1 (Limitation of 22 and 23 Vict. c. 17) agreed to.
§ Clause 2 (On Acquittal, &c, of Person Indicted who has not been committed or held to Bail, Court may order Prosecutor to pay Costs to Accused if he think the Prosecution unreasonable).
§ MR. HURSTobjected to the clause. This proposal was inconsistent with what had hitherto been recognised as the true principle of criminal law, that prosecutors in criminal cases only performed their duty to the State, and therefore in all ordinary cases the costs of the prosecutions were paid by the country. Looking at the great difference of opinion as to what was or was not a reasonable cause, he thought the decision on the point ought not to be thrown upon the Court. He moved the omission of the 2nd clause.
§ MR. RUSSELL GURNEYsaid, he thought we had acted too long on the principle contended for by the hon. and learned Gentleman. It was impossible to admit that prosecutors were invariably actuated by motives of public duty. There were a great many prosecutions instigated by private motives and of private interests. A system had grown up under which parties, having preferred an indictment before the grand jury and obtain a true bill on ex parte evidence, obtained a bench warrant under which the accused was taken into custody, and this for the purpose of inducing a compromise of private rights. This system had been carried to such lengths that the Legislature at length interfered and passed the Vexatious Indictments Act, which provided that no party should be at liberty to go before the grand jury unless the case had first of all been inquired into by a magistrate. If the magistrate was of opinion that the case was well founded the matter took the usual course. The Act had had a most beneficial effect; but since the prosecutor still had it in his power to go before the grand jury upon his own responsibility, the system, sometimes adopted with a view to extortion, had not been entirely put an end to. Cases of this nature had again 1757 and again come before him, and he did not remember one in which the prosecution had been successful. The invariable result was, cither the case was abandoned before the jury, or the jury acquitted, The object was attained when the Bill was found, and the defendant, after being put to great inconvenience, after having engaged counsel and brought up his witnesses ready for trial, found the trial put off on some plausible pretext, and was driven under the pressure of a charge wantonly made to settle some civil dispute between the parties, Was it reasonable that the defendant should be obliged to bear all the expenses of that prosecution? Was it not more reasonable that the prosecutor, who had preferred the charge, and insisted on going on with it on his own responsibility, having failed in establishing the charge, which might be wholly groundless and brought in order to extort money, should, on a Judge's order, be obliged to pay the costs? The hon. and learned Gentleman was not correct in saying that the proposition was a novel one; in cases of libel, when the defendant was acquitted of the charge, the prosecutor had to pay the costs.
THE SOLICITOR GENERALsaid, he could not agree with his right hon. and learned Friend (Mr. Russell Gurney). In all cases where prosecutions were instituted without reasonable and probable cause, not without malice, a civil action lay in which damages could be obtained. But it was a dangerous innovation to say where ex concesso there was no malice, and the proceedings were bonâ fide, if the Judge thought there was an absence of reasonable cause, the prosecutor should be ordered to pay the costs of indictment. The Act under which these prosecutions were frequently instituted was the 22 & 23 Vict. c. 17, s. 1. It enacted that—
After the First day of September, 1859, no Bill of Indictment for any of the Offences following—namely, Perjury, Subornation of Perjury, Conspiracy, Obtaining Money or other Property by false Pretences, Keeping a Gambling House, Keeping a disorderly House, Any indecent Assault—shall be presented to, or found by, any Grand Jury, unless the Prosecutor or other Person presenting such Indictment has been bound by Recognizance to prosecute or give Evidence against the Person accused of such Offence, or unless the Person accused has been committed to or detained in Custody, or has been bound by Recognizance to appear to answer to an Indictment to be preferred against him for such Offence, or unless such Indictment for such Offence if charged to have been committed in England, be preferred by the Direction or with the 1758 Consent in Writing of a Judge of One of the Superior Courts of Law at Westminster, or of Her Majesty's Attorney General or Solicitor General for England.The 2nd clause of this Bill was to this effect—Whenever any Bill of Indictment shall be preferred to any Grand Jury, whether under the Provisions of the Act 22 & 23 Vict. c. 17, or otherwise, against any Person who has not been committed to or detained in custody, or bound by Recognizance to answer such Indictment, and such Bill of Indictment shall be ignored by the Grand Jury, or, being found by them, the Person accused thereby shall be acquitted thereon, and the Court before which the same Indictment shall be so preferred or tried shall be of opinion that such Indictment has been preferred without reasonable Cause, it shall be lawful for such Court, in its discretion, to direct and order that the Prosecutor or other Person by or at whose instance such Indictment shall have been preferred shall pay unto the accused Person the just and reasonable Costs, Charges, and Expenses of such accused Person and his Witnesses (if any) caused or occasioned by or consequent upon the preferring of such Bill of Indictment, to be taxed by the proper Officer of the Court; and upon Nonpayment of such Costs, Charges, and Expenses within One Calendar Month after the Date of such Direction and Order it shall be lawful for any of the Superior Courts of Law at Westminster, or any Judge thereof, or for the Justices and Judges of the Central Criminal Court (if the Bill of Indictment has been preferred in that Court), to issue against the Person, on whom such Order is made, such and the like Writ or Writs, Process or Processes, as may now be lawfully issued by any of the said Superior Courts for enforcing Judgments thereof.Therefore even when prosecutions were instituted by order of a Judge of a Superior Court or by order of the Attorney General, if the Judge thought fit, costs were to be awarded. But there was another objection. They were going to enact a new civil remedy. If one person prosecuted another without reasonable and probable cause, it was extremely probable that he did so also with malice. The issue in a case where a person who had been a prosecutor was made defendant in an action for malicious prosecution, was totally different from where a person was indicted. It was said that after acquittal, the prosecutor having directed his evidence to the question whether the defendant was guilty or not guilty, the Judge, without having a jury to assist him, without further evidence to show probable cause, was at once to say, "Here is a case in which costs ought to be given." There was another inconvenience. The Judge at the trial might say there was not reasonable and probable cause, and condemn the prosecutor in costs; but the defendant 1759 bringing his action for malicious prosecution, the jury might by their verdict declare that there was reasonable and probable cause;—so that there would be conflicting judgments on the same point. In a civil action for malicious prosecution the defendant—the prosecutor in the criminal proceedings—was at liberty to show by his counsel and by his witnesses that he had reasonable and probable cause for preferring the indictment complained of; and if the jury were of opinion that no reasonable and probable cause had been shown they could punish him by making him pay the costs of the person indicted. The Bill, however, proposed that the Judge of the Criminal Court should, without giving the prosecutor an opportunity of showing that he had reasonable and probable cause for preferring the indictment, have power to order him to pay the costs. The clause was unnecessary, since the remedy it proposed to give in cases of malicious prosecutions was now obtainable by civil action.
§ MR. THOMAS CHAMBERSdid not understand that the clause was intended to apply in cases where a Judge had authorized the indictment to be preferred.
§ MR. RUSSELL GURNEYsaid, the clause would not apply to such cases—he intended to confine the operation of the clause to cases which came under the Vexatious Indictments Act.
§ MR. SERJEANT GASELEEthought it would be dangerous to give the magistrates at quarter sessions the power of determining what did and what did not amount to reasonable and probable cause. He thought the best thing to be done was to get rid of the grand jury system altogether.
§ Question put, "That the Clause, as amended, stand part of the Bill."
§ The Committee divided:—Ayes 93; Noes 64: Majority 29.
§ Clause, as amended, ordered to stand part of the Bill.
§ Clause 3 (Accused Person to be asked by Justice if he wish to call Witnesses. Their Depositions to be taken and returned to Court of Trial, if he call any.)
LORD HENLEYasked whether the right hon. Gentleman had any objection to omit the following words in the clause:—
Such justice or justices, before he or they shall commit such accused person for trial or admit him to bail, shall, immediately after obeying the directions of the 18th section of the Act 11 & 1760 12 Vict. c. 42, demand and require of the accused person whether he desired to call any witnesses; and whatever the accused person shall then say in answer to such demand shall be taken down in writing and signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them in due course of flaw, and afterwards, upon the trial of the said accused person, the same may, if necessary, be given in evidence against him without further proof thereof.He thought this provision would operate rather hardly in some cases. If witnesses were called at the trial, who had not been named to the magistrate, it would be urged against the prisoner that the defence had been "got up" in the interval, and it would in that way suffer prejudice. He should also be glad to know whether the defendant would have the right to demand an adjournment for the production of witnesses.
§ MR. RUSSELL GURNEYthought the words to which the noble Lord referred were of great importance, because it frequently happened that the prisoner did not know at what time to call his witnesses, and it was therefore desirable that he should be formally asked whether he had any evidence to adduce in proof of his innocence.
§ MR. THOMAS CHAMBERSsaid, that it was the universal practice for the magistrate to ask the prisoner whether he had any witnesses.
MR. HENLEYsaid, as the magistrate in asking the question was required to caution the prisoner that anything he might say in reply would be used in evidence against him, it was clear that he must, before putting the question, have made up his mind to commit the prisoner for trial. Under such circumstances, it was not fair to require the prisoner to decide at the moment upon the expediency of calling witnesses in his behalf.
§ MR. THOMAS CHAMBERSthought that the objection to the clause would be met by the omission of the words requiring that the answer of the accused person should be taken down and used in evidence against him.
§ MR. RUSSELL GURNEYsaid, he did not object to the omission proposed by the hon. and learned Member for Marylebone.
§ Amendment agreed to.
§ MR. SERJEANT GASELEEinquired whether the prisoner was to be entitled, as a matter of right, to a remand when his witnesses were not in attendance?
§ MR. RUSSELL GURNEYtook it for granted that the magistrates would grant a remand when the witnesses for the defence were not upon the spot when the case was heard.
§ MR. RUSSELL GURNEYsaid, the clause was only intended to include witnesses as to facts.
§ MR. HOWESasked whether the magistrate would be able to grant or refuse a remand at his discretion? He thought it was necessary for the protection of an accused person that his right to a remand for the purpose of bringing forward his witnesses should be distinctly stated in the Bill.
§ MR. RUSSELL GURNEYreplied that in all cases where a remand was necessary it would be granted. When the prisoner was again brought up his innocence might be clearly proved; in which case he would be at once set at liberty instead of being confined until the ensuing assizes, which might not be held for several months after his committal.
MR. HENLEYsaid, a new light appeared to be thrown on the matter by this proposal as to witnesses. It appeared from the statement just made by the right hon. and learned Gentleman that he intended that the magistrate should try the case from beginning to end, and not merely ascertain whether a primâ facie case had been made out by the prosecution. If the prisoner were acquitted by the magistrate, his witnesses would not be paid.
§ MR. ROEBUCKthought that the more important question was under what circumstances was the magistrate the most likely to come to a proper decision. When the magistrate had heard the witnesses on both sides he would be in a better position to come to a decision upon the case than if he had only heard those called on behalf of the prosecution.
§ MR. RUSSELL GURNEYsaid, a case had come to his knowledge in which the magistrate having decided that a primâ facie case of robbery had been made out against a prisoner, had refused to hear his witnesses, although five respectable persons were ready to prove an alibi. When the case came on for trial the counsel for the prosecution at once withdrew the charge when he heard the evidence of the defence.
§ SIR FRANCIS GOLDSMIDsaid, that 1762 as the clause now stood it would include the expense of witnesses to character. It would be quite sufficient to pay the witnesses who knew anything of the circumstances of the case.
§ Clause, as amended, agreed to.
§ Clause 4 agreed to.
§ Clause 5 (If Witnesses for Accused, bound by Recognizance, appear at the Trial, Court may allow Expenses.)
MR. HENLEYwished to ask, why the granting of a certificate of attendance to the witnesses who had appeared on behalf of the prisoners should be optional on the part of the magistrate? If the object were to enable the magistrate to refuse the certificate of witnesses who had given their evidence in an unsatisfactory manner, or of witnesses who ought never to have been called, it was right enough; but certainly after witnesses had been bound over to attend the certificate ought not to be withheld. He therefore moved that the words "if such magistrate should think fit to grant the same" should be left out.
§ MR. RUSSELL GURNEYsaid, that the object was simply to give to the magistrates a discretionary power in the case of those witnesses whose evidence was unsatisfactory or who ought not to have been called. He quite agreed, however, in the opinion of the right hon. Gentleman that a certificate ought not to be refused to a witness who had been bound over to attend.
§ Amendment agreed to.
LORD HENLEYthought that the fee of 1s. payable to the clerks for the names of witnesses handed to the prosecutor was too high. At petty sessions, for instance, seven or eight witnesses were often called in one case, and if 1s. were allowed for each name the expenses would be much increased. He suggested either that the fee should be lower, or that the duty should be attached to the offices held by the clerks
§ MR. RUSSELL GURNEYsuggested that the fee should be reduced to 6d.
§ Amendment made.
§ MR. CHILDERSthought the Committee ought to know, before the clause passed, what was the estimated cost which would be thrown upon the public by the Bill. The question was of some importance, for the cost of committals was al- 1763 ready about £320,000; and it was now proposed to add the expenses of the defendant's witnesses. He presumed that the Treasury had taken the matter very carefully into consideration.
§ MR. HUNTsaid, that when the matter came before the Treasury the principle of the Bill was assented to generally, on the assurance of the Home Office that it would tend to the promotion of justice. He had no idea how an estimate such as that referred to by the hon. Gentleman could possibly be made out, inasmuch as the effect of the Bill could only be ascertained after it had been in operation for some time. As far, however, as his experience would enable him to judge, he believed the expense would be very small; for few prisoners called witnesses, and in cases of alibi they generally broke down.
§ MR. CHILDERSthought the answer just given was a very unsatisfactory one. He was of opinion that the Government ought, before assenting to the change, to obtain information on the point and lay it before the Committee.
§ MR. HUNTshould like to ask the hon. Gentleman how he would set about the preparation of such an estimate. He was perfectly willing to admit that the Bill ought not to be hurried through Parliament; but he candidly confessed that, as far as he was concerned, he did not see that even by postponing it for three months he should be able to frame such an estimate.
§ MR. NEATEbelieved the answer which the Committee had just heard was a perfectly satisfactory one. He did not think that accused persons should be debarred from privileges which were now granted to those engaged in the prosecution. When equal justice was in question the expense ought not to be taken into consideration.
§ MR. SERJEANT GASELEEwas surprised to hear so much said about expense. Large sums were frequently voted for the most foolish purposes, and then nothing was heard about the expense. The question was whether the proposition was a just one or no. If it was, the question of expense was beneath the dignity of the country.
MR. HENLEYsaid, that at present the expenses of the witnesses for the prosecution were in part defrayed by the county and in part by the Treasury; but he could not see that any power was given by this clause to compel the Treasury to make payment towards the expenses of witnesses for the defence. He thought 1764 the witnesses for the defence should be paid as well as those for the prosecution.
§ SIR WILLIAM HEATHCOTEthought so to. He thought also that the expenses of the defendant's witnesses before the magistrate should be allowed; but he questioned whether, as the clause now stood, there was any power given by which witnesses for the defence could be paid in the case of a prisoner brought up before a magistrate and discharged. It was, he thought, of the utmost importance both to the ends of justice and to secure against injustice, that encouragement should be given to diligent sifting of the charges made in the first instance.
§ MR. HUNTsaid, that the Treasury certainly intended to contribute towards the expenses of witnesses for the defence, as they now contributed towards the expenses of witnesses for the prosecution. He thought, perhaps, as there were several of the suggestions made which ought to be considered, it would be better for the present to report Progress.
§ MR. CHILDERSsaid, that the contribution on the part of the Treasury towards the expenses of witnesses for the prosecution was not made under any statute, but was the subject of an annual Vote, the title of which, if the Bill were carried, would have to be altered, so as to include the expenses of witnesses for the defence. With regard to the estimate to which he had referred, it would not, he believed, be difficult to make, because the Treasury at present knew the average cost of witnesses for the prosecution in each county, and the clerks of the peace could easily furnish information as to the expenses of the witnesses for the defence.
MR. BRUCEagreed with the views expressed by the hon. Member for the University of Oxford (Sir William Heathcote.)
§ MR. RUSSELL GURNEY moved that the Committee report Progress.
§ Motion agreed to.
§ House resumed.
§ Committee report Progress; to sit again upon Tuesday next.