HC Deb 22 June 1870 vol 202 cc727-35

Order for Second Reading read.

SIR GEORGE JENKINSON

in rising to move that the Bill be now read a second time, said he hoped that nothing he might say might be regarded as reflecting in the slightest degree on any individual who had ever held the Office of Home Secretary. A Bill on the same subject was introduced some 10 years ago by the hon. Member for New Ross (Mr. M'Mahon); but it dealt with all classes of criminal cases, whereas the present measure was limited to cases of persons convicted of capital offences, where the Judge certified for an appeal in the event of his being satisfied upon affidavits either that some facts not brought forward at the trial might, if proved, have obtained an acquittal of the prisoner on the ground of insanity; or that some facts exculpatory of the prisoner had been discovered since the trial, which, if proved at the trial, might have affected the verdict. He intended to add a third proviso, to the effect that an appeal should lie if the Judge were of opinion that circumstances existed in the case which rendered it questionable whether the extreme penalty of the law ought to be carried out. The reprieve of a prisoner ought in his opinion to be based on grounds which were made known to the public. The Criminal Law Commission had reported very strongly in favour of the view which he held, and said that the law of England was at present very defective as regarded the correction of errors committed under trial by jury. The essence of his contention was, that the proceedings in the way of appeal should take place before a public tribunal; and Sir Frederick Pollock, in his evidence given before the Commission laid down the same principle. Mr. Charles Greaves, who was appointed some years ago by the then Lord Chancellor to prepare a Report on Criminal Procedure, said the present system worked unsatisfactorily. It might, perhaps, be said that the French Court of Cassation considered only questions of form and law, and not questions of fact; but surely this was no reason why we should not adopt a better system. That was also the opinion of Mr. Greaves. He (Sir George Jenkinson) wished it to be understood that nothing in the Bill was intended, in the slightest degree, to interfere with the exercise of the prerogative of the Crown. The appeal he proposed only applied to the question of the guilt or innocence of the prisoner, based on new evidence, the accuracy or otherwise of which ought to be decided by a trial before a properly constituted tribunal in order that the public might know the grounds of the alteration of the original verdict. Assuming the guilt he did not propose that the prerogative of the Crown to pardon criminals should be in the least degree interfered with. At present the Home Secretary was obliged to proceed entirely on ex parte statements got up by the prisoner's friends, and generally without any notice whatever to the prosecutor. Nothing could tend more directly to bring about the abolition of the punishment of death—a result which he should greatly regret—than the commutation of the capital sentence, where a horrible murder had been committed, while the public were unacquainted with the grounds of the commutation. Such proceedings could only tend to weaken the majesty of the law and the confidence which ought to be reposed in its administration. Chief Justice Marcy, of the United States, was also in favour of an appeal on the facts. In the cases of Smethurst and Pellizzioni, there had been a reversal of the solemn verdict of the jury, and very properly so in both those cases; but why should not such reversal—or the grounds of it—have been made public, as well as the evidence on which the decision was arrived at? Instead of a secret investigation by the Home Secretary there should be a re-hearing by a properly-constituted tribunal. Of 206 cases in which reprieves had been granted, 123 prisoners had been convicted of murder and 83 of other crimes. This Bill, if adopted, would relieve the Home Secretary of a most anxious, painful, and often most perplexing duty. It was not expedient that doubts should arise in the minds of the public as to the grounds on which reprieves were given. There was a case in The Times of the 24th of May in which a prisoner who had been sentenced to be hanged many years ago, but was reprieved, had again been tried for a barbarous murder on Bradford Moor. The prisoner turned out to be a returned convict, and had committed grievous injuries on several persons. That certainly was not a case in which a reprieve should have been granted, and if there had been an appeal in criminal cases such a prisoner would not have been set at liberty with a ticket of leave after eight years' penal servitude. There was also the case of Rutterford, convicted of murder and ordered for execution, but whose sentence had been commuted to imprisonment for life in consequence of some thickening in the muscles of his neck, which rendered it difficult to inflict on him the capital punishment, without, as alleged some additional pain. [Mr. BRUCE: That is not so.] He only knew what had been stated in the journals at the time; but of course the right hon. Gentleman could tell to the House the whole facts of the case. But what he wanted to know was, what protection they could give to the warders and other officers of the prison where that convict was to be imprisoned for life when he knew that if he committed other murders he could not be hung, owing to this malformation of his neck? In bringing forward this subject and proposing this Bill he was actuated only by a sense of public duty. His object was to remedy a wrong which he believed really existed, and although he might not be successful now, he believed the time not far distant when some change of the nature which he advocated would take place in the law. He begged to move that the Bill be now read a second time.

MR. EASTWICK

seconded the Motion.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir George Jenkinson.)

MR. J. D. LEWIS

said, that the Bill of the hon. Baronet opened a very large question—namely, that of appeals in all criminal cases; and, if ever to be dealt with, it should be dealt with by the responsible Ministers of the day. The question was not a new one; it had been brought forward in 1844 by Mr. Kelly, now the Lord Chief Baron; in 1848, by Mr. Ewart; and, in 1860, by the hon. Member for Wexford (Mr. M'Mahon), when the late Sir George Lewis made a most exhaustive speech on the whole subject. Besides this, it had been considered by a Committee of the House of Lords in 1848, and incidentally by the Capital Punishment Commission, which reported in 1866. The hon. Baronet had quoted the evidence of Mr. Greaves; but he was the only witness who gave evidence which was at all in favour of an appeal in criminal cases. Lords Lyndhurst, Denman, and Brougham had declared against it, holding that the Bill introduced by Mr. Kelly would have a mischievous effect. A written letter was addressed to all the then existing Judges for their opinion on the matter, and every single answer was opposed to it. So, in 1864, Lord Wensleydale, Mr. Baron Martin, and the right hon. Baronet the Member for Morpeth (Sir George Grey) gave their opinion unanimously that such an appeal would be mischievous. The testimony of two generations of Judges was surely more than sufficient to outweigh that of Mr. Greaves and Chief Baron Kelly. Almost all the objections urged by the learned Judges were reflected in the provisions of this Bill. One great objection was that it was one-sided; for while an appeal was given to the criminal, none was given to the Crown on behalf of the public. Surely, if additional evidence was to be admitted in favour of the prisoner, additional criminatory evidence ought also to be admitted. Moreover, the Bill was totally unworkable. He did not see how it was possible to constitute a Court within the conditions prescribed by the Bill. Where were the expenses of the appeals to come from? Besides, after all, according to the last clause of the Bill, the appeal must ultimately come to the Secretary of State for the Home Department, who would have to decide the case, after two bad trials, instead of, as now, one good trial. He moved that the Bill be read a second time upon this day three months.

MR. BRISTOWE

, in seconding the Amendment, said, that the proposed new tribunal would not be able to do anything which the Home Secretary could not do at present. The Bill contained no provision for granting a new trial, or for quashing a conviction.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. J. D. Lewis.)

THE ATTORNEY GENERAL

said, that attempts had already been made to solve this problem, but always without success, and the present attempt appeared less likely to be successful than any preceding one. There certainly was some authority in favour of instituting new trials in criminal cases; but the weight of authority was decidedly against such a proposition, and there was no authority whatever for such a measure as the present. He did not believe that during the whole of this century there had been a single case of an innocent man having been executed. There might be, and no doubt were, many cases of improper acquittals, nor was he going to deny that there were cases in which the prerogative of mercy had been inexpediently exercised; but the Bill did not deal with either of these classes of cases. The Bill had been correctly described as a one-sided measure. It failed to grapple with a difficulty which had never yet been grappled with, and that was the difficulty, if you allow a new trial in criminal as in civil cases, of not allowing it to both parties. Again, if the Judge was to be called upon to certify that additional facts had been brought forward, care would be taken in every case to file affidavits, stating that new facts had been discovered, and they might be kept back for that very purpose until after the trial. The practical effect of the machinery provided by the Bill in respect to the constitution of the Court would be to cause great delay in the execution of the sentence, as some of the proposed Judges might not be able to attend for a long time after being summoned, and then, after that delay, people would say that it was too late to hang the convict. Those who objected to capital punishment might think that that would be a very good result; but surely, if it were deemed right that capital punishment should be got rid of, it ought not to be abolished by a side wind of that kind. Assuming, however, that the new Court assembled in good time, still it had not the power to institute a new trial in a regular way before a jury, but could only enter upon a new investigation of a bastard description unknown to the law, and the new Court was afterwards to report to the Queen as to a free pardon, or commutation of the sentence, or otherwise, as it might deem right. In fact, the Bill placed the Judges of the new Court in the position of the Secretary of State for the Home Department, and made them the Advisers of the Crown; and here a constitutional objection arose, because it was a constitutional principle that the executive and judicial functions should be kept distinct. Under the existing system the Crown was advised by the Secretary of State as to the exercise of the prerogative of mercy, and the Secretary of State was responsible to Parliament for the advice given. The Bill was, therefore, open to the further objection that it made the Advisers of the Crown in respect to the exercise of the prerogative of mercy a body not responsible to Parliament. At the same time the Bill did not relieve the Secretary of State for the Home Department from the duty of advising the Crown in that matter, for that high, functionary would still be, after the passing of the Bill, as powerful as ever, and might give the Crown whatever advice he pleased with regard to the commutation of capital sentences. The Bill was an ill-considered attempt to deal with a complicated subject, and he could not give his consent to the second reading.

MR. LOPES

said, he must express his unqualified disapproval of the Bill, the principle of which he considered bad, and the machinery, if possible, worse. It would be most unsatisfactory to try a case over again upon written statements when the jury had seen the witnesses. If the measure became law, it would produce uncertainty as to the execution of capital sentences; and, to a great extent, would do away with their deterrent effect. He could come to no other conclusion than that those who were in favour of such a Bill as the present must give it their support because they were advocates for the abolition of capital punishment.

MR. G. B. GREGORY

said, that at present there was substantially an appeal in criminal cases from the Criminal Court to the Secretary of State for the Home Department. He did not regard that as a satisfactory proceeding; and, though he entertained considerable objection to the present Bill, and hoped the hon. Baronet (Sir George Jenkinson) would not press the Motion to a Division, he thought the subject was one well worthy the consideration of the House.

MR. BRUCE

said, he fully admitted that the whole subject deserved the consideration of Parliament, but he regarded the provisions of the present Bill as very defective; and he was of opinion that, if the subject was dealt with, it should be dealt with thoroughly and completely. The Bill provided a most inefficient Court of Appeal in respect to criminal sentences; and, after establishing the Court, did not make it a necessary institution, as there was nothing in the Bill to prevent a prisoner appealing, in the first instance, to the Secretary of State. Indeed, after an inquiry by the Court of Appeal, the Secretary of State might still be applied to, and his decision might differ from and overrule the judgment both of the Court which originally tried the case and of the Court of Appeal. The Bill applied to two cases—first, where some facts, not brought forward at the trial, might, if proved, have obtained an acquittal of the prisoner, on the ground of insanity; and, secondly, where some facts, exculpatory of the prisoner, had been discovered since the trial, which, if proved at the trial, might have affected the verdict; but there was a third class of cases, which excited quite as much public dissatisfaction as the two former, and they related to the extent of the punishment. When a prisoner was convicted of murder, the Judge was bound to pass sentence of death, although in his opinion, and frequently in that of the jury also, and of the public, the circumstances of the case were not such as to warrant the infliction of the extreme penalty of the law. In the case of manslaughter, unrestricted power was left to the Judge, as to the punishment to be awarded; but after a conviction for murder, the Judge must pass the sentence of death, though murders might either be the result of the most atrocious cruelty, or of suddenness of action, induced by provocation more or less serious. It was this distinction which rendered necessary the exercise of the prerogative of mercy to cure the defect of the law; and in 1864, the right hon. Baronet the Member for Morpeth (Sir George Grey) expressed his opinion that without the free exercise of the Royal Prerogative, the law could not remain without alteration for a single day. With that large class of cases the present Bill did not deal. The measure, indeed, was imperfect, both in regard to what it dealt with and what it did not touch; and, therefore, he could not assent to the second reading. The hon. Baronet (Sir George Jenkinson) had alluded to the case of Rutterford, who committed an atrocious murder, and whose capital sentence was commuted on account of same malformation in the man's neck. After making due inquiry, he felt it necessary to commute the sentence, in order to prevent a great public scandal, which would have been the result of an unsuccessful attempt to hang the culprit. That case, however, as well as another referred to by the hon. Baronet, had no relation whatever to the Bill before the House, because neither of them could have gone for review before the Court which the hon. Baronet proposed to establish. Such illustrations showed that the hon. Baronet had not thoroughly considered the subject, and did not understand the working of his own Bill. Under these circumstances, he trusted the House would support the Amendment.

SIR GEORGE JENKINSON

, in reply, said, that not a single argument had been urged against his Bill which did not apply with ten-fold force to the revision of capital sentences by the Home Secretary.

SIR HENRY SELWIN-IBBETSON

said, he trusted the hon. Baronet would not divide the House on the Motion for the second reading; as many Members, though feeling some dissatisfaction at the present state of the law, thought the subject of such vast importance that it should be dealt with only by the Government.

Question, "That the word 'now' stand part of the Question," put, and negatived.

Words added.

Main Question, as amended, put, and agreed to.

Bill put off for three months.