HC Deb 01 June 1874 vol 219 cc802-8

Bill considered in Committee.

(In the Committee.)

Clause 73 (Trials to be continued notwithstanding that the jury may be reduced in number).


The clause proposed that in the event of the death or illness of any juror or jurors during any trial, civil or criminal, except only in a trial for murder, the Judge should have power, if he thought fit, to proceed with the reduced number of jurors, provided that that number should not in any case be less than five; or, in cases of murder, the number should never be less than 12. He (Mr. Serjeant Simon) had given Notice of an Amendment which would confine this power to civil cases only, but he would postpone it to the Report. He thought that to give this discretionary power to the Judge would be inconvenient and dangerous, and therefore he should, in the first place, propose to leave out the words giving this discretion, so that the clause should enact absolutely that the trial, in the case referred to, should go on with the remaining 10 or 11 persons. He should afterwards propose, if it should be decided that in the case of murder the number of jurors should in all cases be 12, that the same rule should apply to trials for treason, misprision of treason, treason-felony, sedition, and blasphemy. There ought to be every safeguard in a case in which a man was put upon his trial for political or religious opinion, and therefore in such cases he would take away the discretion of the Judge to proceed with a diminished jury. Such a responsibility ought not to be thrown upon a single man, and if it was fit that the trial should proceed with a diminished jury, the Committee ought to have the courage to say so. He proposed the omission of the words "civil or criminal, the Judge presiding at such trial shall have power."


considered the clause a valuable provision of the Bill, which he was unwilling to relinquish, particularly as, since they were last in Committee, he had ascertained that all the Judges of the Court of Queen's Bench highly approved of this discretionary power being given. Further, they thought it would be almost a pity that murder should be excepted. He thought it would be better and more logical not to exclude it from the operation of the clause; but he should certainly refuse to include the crimes mentioned by the hon. and learned Member among the exceptions.


suggested that the question should be reserved for the Report, when he would propose to strike out all exceptions, and provide that the trial should proceed when the number of the jury had not been reduced below 11. He thought this would meet all practical ends, for it was extremely unlikely that two members of the same jury would be disabled at the same time.


said, he thought it was necessary that discretion should be vested in a Judge to decide upon evidence as to the temporary character or permanence of a juror's illness, and to say whether the trial should proceed in his absence or not.


supported the clause, remarking that he could see no probable danger or inconvenience likely to arise from investing Judges with the discretionary power included in the clause. He approved of the exception of cases of murder. He believed the public would not be satisfied even with an unanimous verdict if it were returned by less than 12 persons.


said, it was illogical to provide for the illness or death of a juryman, and not—what was much more likely to happen—for his stupidity or corruption. In the course of a long experience he had never known any serious inconvenience arise from the sickness of a juror.


thought the clause was a good one, as it would provide for rare and difficult cases. He saw no valid reason for refusing to con- fer upon. Judges such a discretionary power as was provided by the clause.

Amendment, by leave, withdrawn.


moved to insert words extending the exceptions to trials for treason, misprision of treason, treason-felony, sedition, and blasphemy.

Amendment, by leave, withdrawn, and the words "any capital offence" substituted.

Clause, as amended, agreed to.

Clause 74 (Challenges in civil trials in the superior Courts).


desired to place informations and indictments for misdemeanour on the same footing as civil cases in respect of peremptory challenges.

Amendment moved to insert, in page 21, line 5, after "courts," "and in all trials of indictments for misdemeanour and informations."—(Mr. Morgan Lloyd.)


said, he would accept the Amendment of his hon. and learned Friend, and would insert in the Interpretation Clause the Informations intended to be covered.

Amendment agreed to.


said, he objected to the clause that it limited the exercise of the suitor's right to object to a juror to a particular mode. The object of the clause was to enable persons in civil trials to object peremptorily to a certain number of jurors; but they could only exercise that right "by delivering to the officer of the court, whose duty it shall be to call the jury, a list of the names objected to before the jury are called." This condition would entirely thwart the object of the clause. He should propose to strike out the whole of this direction.

An Amendment moved, page 21, line 8, after "number," leave out to end of clause.—(Mr. Serjeant Simon.)

After some discussion, Amendment, by leave, withdrawn.

Clause as amended, agreed to.

Clause 75 (Panel to be delivered to the accused in high treason), agreed to.

Clause 76 (Viewers not to be peremptorily challenged), agreed to.

Clause 77 (Criminal trials may be tried by special jurors.)


moved an Amendment enabling a Judge at his discretion to direct a case involving a charge of felony to be tried by a special jury, as it was provided he should have power to do in ease of misdemeanour.

Amendment proposed, In page 21, line 29, to leave out from the word "information" to the end of the Clause, in order to insert the words "at the assizes or Central Criminal Court, on the application of either the prosecutor or accused, a judge of the superior court may, if he think fit, direct the issue to be tried by a special jury, provided that the party mailing the application shall give such notice as shall he fixed by any rule of court to be made as hereinafter prescribed."—(Mr. Lopes.)

Question proposed, "That those words be there inserted."


objected to the prosecutor being allowed to apply to the Court for a special jury. He thought the power was an invidious one, which the Judge would find some difficulty in exercising.


urged that some cases, such as charges of poisoning, were beyond the capacity of a common jury. The sole object of the clause was to secure a fair trial, and there were many cases in which it was most desirable in the interests of justice that there should be power to refer it to a special jury. The question was one which might fairly be left to the Judge.


pointed out that there was more in this Amendment than appeared when viewed superficially. It was essentially class legislation. In the case of a night poacher or a trades unionist being tried, the application on the part of the prosecutor for a special jury would result in placing in the jury-box just the men who were most averse to the accused: the poacher would be tried by landowners, and 'the trades unionist by the employers of labour, and nothing but complaint would be the result.


agreed with the hon. and learned Gentleman. If the Amendment should be agreed to an opinion might arise that in cases of petty larceny the prisoner would not get a fair trial on account of being tried by a jury of gentlemen.


thought the clause a reasonable one, and it gave equal facilities to both sides. The Judge would not accede to the request of either unless he considered the case one which required to be tried by a special jury. For himself he thought there were many cases in which a special jury might be had with advantage.


thought the clause threw a slur on the tribunal which the Bill set up for the trial of criminal cases and it would be unfortunate if it were inserted in the measure. Common juries had hitherto disposed satisfactorily of the most difficult poisoning cases that had been submitted to them. Take for instance the Palmer Case, and the Essex poisoning cases, which occurred some years ago, and which required the utmost diligence and attention—yet the Essex jury were probably not above the ordinary run of jurors at assizes in capacity.


believed the power of calling for a special jury would be sufficiently guarded from abuse by the necessity of obtaining the sanction of the Court. He did not suppose that in such venues as London and Middlesex the judge would exercise his arbitrament, but he might do so where the area of selection was narrow, as in the Welsh counties, and rescue the case from the hands of an incompetent jury.


pointed out the fact that special juries were unknown in civil cases until they increased in importance. Of late years criminal cases had assumed particular importance, and on the same principle ought to be tried by special jury.


said, he was sorry to differ upon that clause from the hon. and learned Member for Taunton (Sir Henry James), whose kind and cordial assistance in regard to the Bill he gratefully acknowledged. That hon. and learned Gentleman said that though they might have a special jury in a case of misdemeanour they could not have one in a case of felony. But at the present day the distinction between a misdemeanour and a felony was nothing but a sentiment. The distinction was meaningless and practically obsolete. The clause, as it stood now, had received the approval of the Judges of the Court of Queen's Bench.


said, that if the argument of his hon. and learned Friend were good the power given by the clause ought to be extended to the Quarter Sessions, where the bulk of criminal cases were tried. The cases in which the new proposal would be acted upon were so few that it was not worth while raising the broad question of principle.


thought the Committee was losing sight of the main object—the insuring of right verdicts from juries of more, instead of less, intelligence; and, as the discretion was to be exercised only by a superior Judge, he could not see any objection to giving it. Applications were constantly made on behalf of prisoners for the removal of their trials from the Central Criminal Court, to a Superior Court, for the express purpose of securing a jury of a different character. If the Committee wished in felonies as well as misdemeanours to insure that there should be a jury of the greatest possible intelligence, they would support the Amendment of his hon. Friend the Member for Frome (Mr. Lopes.)


said, that at present, cases of misdemeanour were removed to the Superior Courts by writ of certiorari, not for the purpose of obtaining a special jury, but because difficult points of law were involved. The effect of the Amendment would be to give to every rich misdemeanant the power of having a special jury. The less the Judge had to do with the selection of juries the better.


supported the Amendment.

Question put.

The Committee divided:—Ayes 119; Noes 107: Majority 12.

Question proposed, "That the Clause, as amended, stand part of the Bill."


gave Notice that on the Report he would move the omission of this clause.


thought the clause was an entire innovation on the practice of the criminal law, and he thought it most important that it should be challenged on the Report.


said, he could on no account relinquish this clause. The Committee had given its decision, and those who desired to do so might challenge it, if they deemed expedient, at a future stage.


moved that the Chairman report Progress.

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."—(Sir Thomas Chambers.)

The Committee divided:—Ayes 93; Noes 110: Majority 17.


was of opinion that an important change in the law had just been carried under very peculiar circumstances; and, with the view of giving Government an opportunity of re-considering their position in the matter, he moved that the Chairman should leave the Chair.


thought the right hon. Gentleman somewhat dictatorial in his manner of giving advice to Her Majesty's Government, and submitted that the usual course was to renew the opposition on Report. Considering, however, that the minority in favour of reporting Progress was large, he would suggest to his hon. and learned Friend (Mr. Lopes) that it might be better to yield to that desire.


disclaimed any wish to be dictatorial, and expressed a readiness to withdraw his Motion if the proposal to report Progress was accepted.


acceded to the suggestion of his right hon. Friend (Mr. G. Hardy).

Motion put, and negatived.


again moved that the Chairman report Progress.

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."—(Sir Thomas Chambers.)

The Committee divided:—Ayes 182; Noes 11: Majority 171.

House resumed.

Committee report Progress; to sit again To-morrow.