§ Order for Second Beading read.
§ DR. C. CAMERON
, in moving that the Bill be now read a second time, said: The objects of the High Court of Justiciary Bill are two-fold. It proposes, in the first place, to extend the term during which appeals from the decisions of inferior Courts under the provisions of the 20th of Geo. II., cap., 43, may be competent; and in the second, to extend the grounds of those appeals. According to the 34th clause of that Act, it is lawful for any party conceiving himself aggrieved by the judgment of any sheriff or burgh Court, when such sentence shall be concerning matters criminal of whatever nature or extent, except all cases which infer the loss of life or demembration, or in matters civil where the subject-matter of the suit does not exceed in value the sum of £12, to appeal to the next Court of the circuit wherein such county or burgh shall lie. No such appeal is competent before a final judgment is pronounced; and in order that it may be competent, it must be taken in open Court—At the time of pronouncing such decree, judgment, or sentence, or at any time thereafter within 10 days, by lodging the same in the hands of the clerk of the Court, and serving the adverse party with a duplicate … and serving in like manner the inferior Judge himself in case the appeal shall contain any conclusion against him by way of censure or reparation of damages for alleged injustice.The provisions of this Act for appeal have been incorporated in a number of other Scottish Acts of Parliament, both public and private—amongst others, for example, in the General Police Act and in the Glasgow Police Act; and in both these Acts, and in most of the others, the grounds on which appeal is allowed have been so narrowed that it is absolutely necessary in the interests of justice, that no unintentional obstacles should be thrown in the way of exercising that right. In the Acts which I have quoted, for instance, appeals according to the provisions of 20 Geo. II, cap. 43, are only allowed on the grounds of corruption, malice, or oppression on the part of the Judge, wilful deviations 1737 in point of form from statutory enactments, and incompetency, including defect in jurisdiction. Now, Sir, when it is borne in mind that appeals under the provisions of this Act are restricted to such narrow and urgent grounds, it is imperative to see that no unnecessary obstruction is placed in the way of any person desiring to avail himself of the right of appeal which does exist. In considering this matter it must be borne in mind that in petty criminal eases in Scotland the law is administered in the most summary fashion. In the great majority of cases the accused is apprehended without a warrant, kept locked up in a police cell, taken to Court, and the trial at once proceeded with. If he asks for delay, he is entitled to have the case postponed for a few hours. But there is no provision made for informing him of that right, and if he does demand the delay, he is still kept under lock and key; so that unless he happens to have funds to employ an agent, or friends to interest themselves in his behalf, he is absolutely powerless to do anything in the way of preparing for his defence. In consequence of this there is reason to fear that much injustice is often done; and, as imprisonment follows immediately upon conviction, even the limited right of appeal given under the Act which I propose to amend becomes unavailing. As I have said, according to that Act, appeal must be lodged within 10 days of the sentence being passed; and although in the various Acts with which its provisions have been incorporated, that term has been more or less modified, it may be safely stated that such appeal is nowhere competent more than 14 days after the passing of the sentence. If, therefore, a justice or a magistrate corruptly, oppressively, or maliciously sends an ignorant and undefended person to jail for 15 days, he may do so with the comfortable assurance that by dealing out a sufficiently lengthy sentence, he has practically rendered it all but impossible for his victim to appeal against his decision, or to seek redress at his hands. For according to the 35th of the rules for the conduct and treatment of prisoners in Scotland, convicted prisoners are allowed to receive no visit, nor to send out or to receive more than a single letter during the first three months of imprisonment, except in case of sickness and other spe- 1738 cial circumstances, when the Governor may make an exception in their favour. Once, then, safely in prison for 15 days, the victim it may be of oppression, malice, or corruption on the part of the Judge, is practically cut off from the outside world, and effectually prevented from exercising his right of appeal. In using the words corruption, malice, and oppression in connection with the Judges of our inferior Scottish Courts, I should be very sorry to be supposed to wish to cast any reflection upon them. I make use of the words simply because they occur in the Acts of Parliament with which has been incorporated the provisions as to the appeal of the Act which it is the object of the Bill now before the House to amend. Cases in which there is any ground for alleging corruption, malice, or oppression against even our unpaid magistracy are extremely rare; but they are not so rare, but that the Legislature has thought proper to provide for a right of appeal, wherever such allegations can be sustained. What I affirm is, that under the existing restrictions as to the time during which appeals are competent, taken in connection with the conditions under which the accused is placed, the salutary intentions of the law with regard to the right of appeal may be altogether frustrated, and that in the very cases where it is most desirable, in the interests of justice, that effect should be given to them. This is illustrated very forcibly in a case which occurred about six months since in the city of which I have the honour to be one of the Representatives, and which excited a great deal of attention, not only there, but throughout all Scotland—the case of William Mackenzie, a Glasgow joiner. The case as set forth in the statement of facts appended to the bill of suspension which was unsuccessfully raised to obtain the quashing of Mackenzie's sentence were as follows:—On September 11, Mackenzie, who was at work on a building, the joiner work of which was being executed by his employers—Messrs. Miller and Bannerman—was taking his breakfast on the premises, when his attention was called by his wife to a woman who was gathering pieces of stick within the barricade which surrounded the building, and handing them to another woman who stood outside it. Mackenzie thereupon 1739 ordered away the woman who was within the barricade, and took from the woman who was outside the sticks which were in her possession, with the exception of "three small and useless pieces of old wood, partly rotten, and filled with nails," which the woman refused to give up, and which Mackenzie did not think it worth while attempting to force from her. He had never seen either of the women before, had not seen the three pieces of stick handed through the barricade, and did not actually know whether they had been taken from the building upon which he was employed or not. It happened, however, that two policemen had observed the old woman with the sticks, and they brought her back and made her throw them down. Now, if anyone committed a theft, it was obviously the old woman, and not Mackenzie, and if anyone should have been arrested and punished for it, it was obviously she. And yet for this wretched theft, which the policemen considered too paltry to justify the arrest of the old woman, Mackenzie, who had committed no offence at all, was sentenced to 30 days' imprisonment by Bailie Bannerman, a magistrate, who was for many years sole partner of the firm of Miller and Bannerman, who, according to the statement of facts from which I am quoting, at the very time that he pronounced this extraordinary judgment, retained a large pecuniary interest in the firm, and whose son was a partner of that firm. Now, Sir, the fact of such a sentence being pronounced in such a case, had even the alleged theft been committed, was bad enough. It was especially bad that a magistrate should pronounce it in a case brought up at the instance of a firm in which he retained a large pecuniary interest, and of which his son was still a partner, and it was doubly bad that he should pronounce such a sentence directly in the teeth of a wise and salutary arrangement which has for long been acted upon by the magistrates of Glasgow, that in first convictions for trifling offences the prisoner should be dismissed with an admonition. But, Sir, bad as all these considerations would have rendered this case, its injustice was aggravated by the circumstances which attended Mackenzie's arrest and trial. As I have said, the policemen who brought back the old woman with the 1740 three pieces of stick did not think it worth while to arrest her, and of course they had no excuse to arrest Mackenzie; but on the afternoon of the day on which the occurrence took place, Mackenzie was given in charge of the police by Messrs. Miller and Bannerman's foreman, and brought to the police office, where the lieutenant on duty, having inquired into the case, considered that there was no ground for detaining him, and dismissed him. On the following day, Saturday, when Mackenzie went to his employers' office for his week's pay, he was again given in charge by a member of the firm to a policeman whom they had arranged with to be in attendance for that purpose, and this time the charge was entertained, and Mackenzie was locked up in a police cell, where he lay till Monday morning. During this time he had no opportunity of communicating with anyone except his wife, to whom he got one of the officials to convey a message on Sunday, and who arranged to be in Court to speak for him on the following morning, as Mackenzie had such an impediment in his speech as practically prevented him, when excited, from making himself intelligible to any but her. On the Sunday, too, he was visited by the detective who had charge of the case, and who strongly urged him to plead guilty, assuring him that the case was of such a paltry nature that, if he did so, he was certain to get off with an admonition. On the Monday morning Mackenzie was brought up before Bailie Bannerman, the charge against him, which he now heard for the first time, read hurriedly over to him—in accordance with the advice he had received he pleaded guilty, intending, he maintains, to explain that it was only to having allowed the old woman to go away with the three sticks. His wife, who was to have been there to make the explanation for him, was not in Court, having been prevented by the police from entering. His plea of guilty was recorded, and he was sentenced to 30 days' imprisonment. Now, Sir, I say that this is as aggravated a case of injustice as one could well conceive, and that it is precisely one for which the law intended to provide by the allowing of appeals. But in this very case, from the restriction at present placed upon the time during which an appeal is competent, an attempt at ap- 1741 peal proved futile, and that although Mackenzie was, in accordance with a provision contained in the Glasgow Police Act, liberated after eight days only of his sentence had expired. For, as I have said, Mackenzie was virtually cut off from the outer world from the date of his arrest. He was a poor man, and had not the benefit of legal advice. He was totally unacquainted with the provisions of the law as regarded appeal, and it was not till after his release that, his case having been brought before the public, the necessary funds were provided to enable him to seek for redress. By this time the statutory number of days allowed under the Act had elapsed, and although it was attempted, by way of suspension, to have the sentence quashed on the ground that there had been corruption, malice, and oppression on the part of the Judge, and that, in fact, no such crime as that libelled had ever been committed, the Court of Justiciary held that it was too late to open up the question. Nay, the judgment of the Court aggravated the anomaly to which I have drawn attention. It was argued by the appellant's counsel, as a reason for bringing the appeal to the High Court of Justiciary, instead of the next Circuit Court, that the complainer having 14 days allowed him by statute within which to deliberate whether to seek review or not, and being—under the statute which I seek to amend—required to give 15 days' notice of his appeal to the opposite party, after he had determined on it, there was not that length of time—29 days in all—intervening between the date of the sentence and the meeting of the next Glasgow Circuit Court. Now, Lord Neaves, who delivered the leading judgment in the case, disregarded this plea.The appellant," he said, "takes 14 days to make up his mind to complain of the flagrant injustice under which he is smarting; he lies in jail until it becomes impossible for him to carry out the other requisite—the 15 days' notice; he could have done it perfectly well under the statute—he could have made up his mind. It appears to me it was his duty to have made up his mind; he was not bound to delay 14 days. He has that time if he requires; but there is another requisite with which I think he should have taken steps to comply when it was in his power.I would ask the House to mark the effect of these last words, for it has 1742 a most important bearing on this Bill. It is this—that, according to Lord Neaves, when less than 29 days elapse between the pronouncing of a sentence and the sitting of the next Circuit Court of Justiciary, the respondent is entitled to 15 days' notice, and the appellant only to so many days as may remain between the date of the sentence and the 15th day before the sitting of the next Circuit Court. So that actually if the sentence should happen to have been pronounced 16 days before the sitting of the next Circuit Court, the appellant, according to this learned Judge must be restricted to a single day instead of the 10 or 14 granted him by statute, and if judgment happens to have been pronounced within 16 days of the sitting of the next Circuit Court, the man must, according to the same reasoning, be deprived of the right of appeal altogether. Now, Sir, any one who takes the trouble to read the words of the statute regarding this 15 days' notice, will see that, according to the plain wording of the Act which I seek to amend, the appellant is entitled to so many days wherein to give notice, and the respondent to 15 days' notice, and that he must attend not at the next Circuit Court after the trial, but "at the next Circuit Court which shall happen to be held 15 days after such service." It will thus be seen that Lord Neaves' decision on this point was directly in the teeth of the obvious meaning of the statute. But when Judge-made law and statute law come into collision the latter too often goes to the wall; and I have shown what Lord Neaves' interpretation of the right of appeal under 20 Geo. II, cap. 43 is, because it strengthens my case, and renders more urgent than ever the necessity for such an extension of the time during which appeals may be competent, as is proposed in this Bill. Before leaving this point, it may be as well to correct an impression which a sentence of Lord Neaves, which I have quoted, might leave upon the mind of the House. The learned Lord speaks of a man lying in prison, being perfectly well able to appeal under the statute of 20 Geo. II As I have shown, the rules which regulate the management of prisons in Scotland render this practically impossible; for, according to them, a convicted prisoner cannot receive any visit, nor write or receive more than one letter during, 1743 the first three months of his imprisonment. But a hon. and learned Friend of mine, a Member of this House, said to me—" What is the use of granting the right of appeal against a sentence of imprisonment after it has been undergone?" My reply is, that the Act of 20 George II., as it at present stands, grants that right of appeal, and very plainly suggests the reason for so doing. For under it, any man who has been unjustly imprisoned for any period less than 25 days must bring his appeal after his term of punishment has expired. Moreover, according to it, provision is made not merely for serving the adverse party with the appeal, but "for serving in like manner the inferior Judge himself, in case the appeal shall contain any conclusion against him by way of censure or reparation of damages for alleged wilful injustice." The reason, therefore, for allowing these appeals under the Act of 20 George II. is clearly not only, in cases where that is possible, to prevent unnecessary hardship being suffered through the operation of an unjust sentence, but when that sentence has been completed to allow the injured party to clear his character by the annulment of the conviction recorded against him, and to obtain reparation of damages at the hands of those from whom he has suffered wilful injustice. The importance of the last object, not only to the injured party, but to every one concerned in the purity of the administration of justice in our inferior Courts, is obvious, and the importance of providing for the revision, and, if it appears proper, the reversal of sentences in such cases as are dealt with under this Act, is equally obvious if it be remembered that as long as the conviction stands it is practically impossible to obtain reparation for injury suffered under it, by a civil suit. This constitutes my case for the extension of the time during which appeals under 20 Geo. II., cap. 43, shall be competent. What I propose is that they shall be timeously made if lodged at any time during the currency of the sentence, or within 14 days after its expiration—and I make this proposition with the view of converting what is at present, in those cases where the most wrong has been suffered, but the shadow of a right into a reality—with a view of abolishing that legal fiction which at present gives a convicted prisoner the right of appeal, 1744 while the prison rules effectually prevent his availing himself of it. The 2nd clause of the Bill now before the House is intended to enlarge the ground on which appeals from the Inferior Courts to the High Court of Justiciary are competent. Originally the powers of review of the Supreme Court were unrestricted; but it has comparatively of late years become the fashion in various statutes with which the provisions for appeals of the Act to which I have so often referred have been incorporated, to limit the grounds on which they can be exercised. In a number of cases these are now so limited as to apply only to cases where the injustice of a sentence has not only been manifest, but where it has arisen through the wilful act of the Judge. Thus, in the General Police (Scotland) Act of 1862, and in the Glasgow Police Act, the only ground on which an appeal from the magistrate's decision is competent are (1) corruption, malice, or oppression on the part of the Judge; (2) such deviation in point of form from the statutory enactments as the Court of Review shall think took place wilfully; and (3) incompetency, including defect of jurisdiction. What I propose is to add that an appeal against a sentence shall be competent whenever the Court of Review shall consider that the proceedings under which that sentence was pronounced were so conducted as not to afford the appellant a fair trial. It may be objected that the words in this Bill are such as would allow the Court of Review a very wide discretion. Such, I do not conceal, is their object; but I do not think they would allow it a wider general discretion than that which is already allowed it in different directions even by the various restrictive enactments. Thus, it does not allow a wider discretion than is allowed the Court in the interpretation of what constitutes oppression, a term which, elastic as it is, is sometimes stretched to its very limits of expansion in order to allow the Court to get into a case when an obvious injustice has been done, but which technical difficulties hedge round against the exercise of appeal. Again, in the Small Debt Act, Section 31, appeals are allowed in the case of such deviation of form from statutory enactments as the Court shall think took place wilfully, and prevented substantial justice from 1745 being done. Now, this is precisely analogous in point of the discretion allowed, and almost of the language used with what is proposed in this Bill. In both cases the Court of Review is left to determine, in the one case, whether the wilful deviation from forms has prevented substantial justice from being done; and, in the other, whether the proceedings were so conducted as not to afford the appellant a fair trial; and in each case it has it in its power to remit to the local sheriff, or some other commissioner, the task of inquiring into, and reporting on, the one preliminary point or the other. Having disposed of this objection, let us now consider a few cases which illustrate the necessity of the extension proposed in this Bill. In the first place we have the Mackenzie case, to which I referred at some length in connection with the proposed extension of time for lodging appeals. There, as we have seen, the prisoner was afflicted with such an impediment in his speech as rendered him when at all excited unintelligible to everyone except his wife, and those whom habit had enabled almost to read his thoughts. His wife, who had seen the whole transaction, and who came to Court to speak for him, and who in his case was really as essential to the elucidation of any explanation which he had to make as an interpreter would have been in the case of a mute or a foreigner, was prevented by the officer in charge from entering the public Court. The prisoner was not even supplied with a copy of the charge against him, and knew nothing of its particulars beyond what he could gather from having hurriedly read over to him a long document, couched in unintelligibly technical language, and encumbered with a mass of technical details. He pleaded guilty, intending to add to allowing the old woman to go away with the pieces of stick. His stammer prevented him from gasping out more than the word which was interpreted as guilty, and he was forthwith sentenced to 30 days' imprisonment. Now, Sir, as the law at present stands, under the words of the Glasgow and of the General Police Act, the oppression which has occurred, not being oppression on the part of the Judge, would not justify an appeal. At the same time, it will hardly be denied that in the interests of justice it is desirable that a sentence pronounced under 1746 such circumstances should be capable of being appealed against. This is precisely one of those cases where the Cour of Review, if this Bill passes, would have a wise and desirable discretion allowed it, and an appeal would be competent if the proceedings under which the sentence had been pronounced were such as in its opinion not to afford the appellant a fair trial. Another Glasgow case which forcibly illustrates the necessity for the extension of the grounds of appeal which I propose is that of Gray v. M'Gill which is reported in Irvine's Justiciary Report, vol. 3, p. 29. In this case the appellant, a boy of eight years of age, was taken out of bed in his father's house, after his father had left home for his work, hurried to the police office, tried, convicted, and ordered to be flogged; and in accordance with his sentence received 20 stripes all within a few hours, and before his father could even be communicated with. In this case the sentence was quashed because of certain irregularities appearing ex facie of the written record of the proceedings; but on the main facts of the case, Lord Ivory said—The complainer is a child, his father was known—a householder in Glasgow. The child was, in the absence of the father, tried and punished with reckless haste. I would abstain from placing my judgment on this ground;and the two learned Lords who were sitting with Lord Ivory concurred with him as to the grounds on which the judgment should rest. It would thus appear that under the existing law there could have been no appeal, unless for the accident of these formal irregularities. I maintain that it is most undesirable that this right of appeal, in such a case, should depend upon an accident, and what I propose is, that if in a case like this the Court of Review considered that the proceedings at the trial were so conducted as not to afford the appellant a fair trial, irrespective altogether of points of form, it should have the power to hear the appeal. Another case which also occurred among my own constituency, and I am done. In November last a woman of loose character was assaulted. A fortnight later she gave a lad named Gilmour, aged 16, the only son of a respectable widow, in charge of the police for having committed the assault. This occurred on a Saturday night. On the following day the mother learned 1747 through some one who had seen the arrest what had taken place. She at once went to the Police Office where her son was locked up, but the officer on duty positively refused to allow her to see him. On the following morning she went to the Court; but, although, according to the words of an appeal which was afterwards raised, she remained at the entrance of the Court from half-past 8 in the morning till I in the afternoon, she was positively refused admission till the Court was over. Meanwhile the lad, who, from his age and inexperience, was naturally unable to conduct his own defence, and who, in consequence of his mother being kept out of Court, was unable to communicate with witnesses, who he maintains could have proved his innocence, was sentenced to 60 days' imprisonment. An appeal was taken in the case, and the matter came before the Glasgow Circuit Court only last week, when it was held by the Court that as there had been no oppression on the part of the Judge, the sentence could not be reviewed. Now, assuming these statements to be correct, I think that there can be little question but that in this case the proceedings were so conducted as not to afford the prisoner a fair trial; and what I contend for is that in such cases the mitigation or reversal of an unjust sentence, pronounced under circumstances for which the Judge himself is not to blame, shall not be left to the chance of a legal quibble, or pronounced altogether incompetent, as at this moment it is; but that in such cases as those which I have described the Court of Justiciary should have power, should it think fit, to review the decision of the inferior Court. And now, Sir, having fully described the scope and objects of the Bill before the House, I have only to move its second reading.
§ MR. FRASER MACKINTOSH
, in seconding the Motion, said, he had much pleasure in supporting the Bill of his hon. Friend the Member for Glasgow. That was a subject which excited much interest among a large and intelligent class of the Scottish community, for it related to the proper administration of the criminal laws, than which nothing could be more important. In ancient times the central Regal power being weak in Scotland, it was found necessary in charters and grants of regality, barony, and others, to include criminal jurisdictive 1748 powers. These were often the instruments of intolerable wrongs, and in the reign of Charles II., in 1672—a reign which, he might observe, had generally been regarded as one in which the exercise of arbitrary powers was a matter of constant occurrence—was established the High Court of Justiciary, the supreme tribunal in criminal procedure. When he spoke of that Court, he meant whether it sat at Edinburgh, or on circuit. Notwithstanding occasional instances of abuse, it could be truly said of the High Court that its records were of an honourable character, and it had often proved the safeguard of those falsely accused, and the terror of inferior evil-doers. The right of reviewing inferior Court sentences was, as had been clearly pointed out by his hon. Friend the Member for Glasgow, put on a distinct footing by the Act of 20 Geo. II, cap. 43, passed in the year 1747, and from that period until well on in this century, the rights of review thereby constituted were fully taken advantage of, and the High Court ex nobili officio, by a train of decisions, came to establish for itself the very widest power of review. The rules laid down by the Act of Geo. IL, when population was more scanty, and crime perhaps not so common, were sufficient for the time; but as towns and cities grew in population, and local Acts of Parliament came to be applied for, for police and other purposes, Provisoes that the sentences pronounced under these special Acts should be subject to no Court of review whatever, except on very limited grounds, almost impossible of proof, became common, and thus the rights of appeal were so narrowed and hampered as to become almost useless for any good purpose. It had for some time been obvious to those who had studied the subject, that the provisions of the Act of George II, with regard to appeals, had become inapplicable, in consequence of the restrictions he had referred to in special Acts, the altered state of population in large cities, and the rules laid down for the management of prisons and prisoners. The illustrations, striking and apposite, which had been given by his hon. Friend the Member for Glasgow, of the hardships under the present law, sufficiently demonstrated that position, and showed that the present law was insufficient in many cases to afford justice. It was one of the 1749 boasts of civilization that, as it advanced, so did the freedom of the individual, and they were proud to think that in no country in the world was there less danger than in their own—that if there were a wrong committed, it could not be righted. The Bill was a studiously moderate one; it did not in the least facilitate unnecessary appeals, nor strike at the stability of sound decisions; but it certainly gave to the ignorant and unfortunate, and to those innocently charged, opportunities of redressing wrong which they did not then possess. They contended for the correctness of the principles involved, and if the right hon. and learned Lord Advocate was of opinion that the wording of some of the clauses of the Bill might be amended with advantage, that could be done in Committee.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Dr. Charles Cameron.)
§ MR. MONTGOMERIE
said, he did not intend to move the rejection of the Bill; but it was very undesirable to multiply Bills on subjects of the kind; and as the Lord Advocate had a Bill on a cognate, or rather the very same subject, he would suggest to the hon. Member for Glasgow (Dr. Cameron) that his object might be attained by the introduction of Amendments on that measure. He was not prepared to admit as facts all the statements made by the hon. Member for Glasgow—they must be regarded as simply ex parte statements, although, for the purpose of argument, he was willing to assume that they were true. In regard to the Mackenzie-Bannerman case, he regretted that the Court had not seen its way to go into the facts, and the 1st clause of the Bill before the House would probably meet such a case. Some of the cases which had been referred to seemed to turn upon the police, or the officers of the Court having exceeded their duty by preventing the friends of persons accused from entering the Court. Such cases could scarcely be provided by any alteration of the law. All Courts were open, and those who could have assisted the accused had a right to be present in Court. These were matters for regulation by the magistrates not for legislation. He, himself, had no wish whatever to stand in the way of appeals from the Inferior to the 1750 Supreme Court; but they must take care not to encourage frivolous appeals on trifling points, which were apt to be raised by ingenious lawyers, but would not bear argument in Court, and were only calculated to add great expenses to the punishment their clients had already suffered. He thought the most objectionable part of the Bill was the 2nd clause, which, in his opinion, opened the door to appeals of the kind to which he had referred. Cases had been stated where the police were accused of having influenced parties to plead guilty. In cases of this kind, it was the duty of the Judge to take the matter up. He would move that the Bill be not read now.
§ MR. MONTGOMERIE
thought the matter had better be left in the hands of the Government, and would therefore move its rejection.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Montgomerie.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ SIR GEORGE CAMPBELL
said, he had had a long experience of judicial business—not much in his own country—but, to some extent, in England; and a great deal in another country, where appeals were carried to excess. That being his position, he had listened attentively to the hon. Member for Glasgow (Dr. Cameron), and his impression was that he had not made out a sufficient case. Though appeals were in many cases necessary and expedient, they might be carried too far, and, as had been said by the hon. Member who moved the rejection of the Bill, there was a danger of giving too much encouragement to appeals of a frivolous nature, which might be got up by members of the legal profession. Not one case of practical injustice for want of an appeal had been made out by the hon. Member for Glasgow, and a good deal of what he said went to prove other things than those with which the Bill dealt. He had referred to cases in which injustice had been done by unpaid magistrates and the police, but he had given no single 1751 case in which justice had been thwarted by the existing limitations of the right of appeal. Even in the Mackenzie case, the injustice which had been done was eventually set aside. Therefore, he could not see that a case had been made out for the Bill; and considering the undesirableness of encouraging appeals, and the proneness of his countrymen to litigation, he did not think we should too much facilitate litigation. At the same time, he thought much might be said in favour of the 2nd clause, which would enable a prisoner to appeal on any serious irregularity in the trial. Inasmuch, however, as the Lord Advocate had a Bill on the same subject, he thought the hon. Member for Glasgow might withdraw his, and let the whole matter be considered when the Government measure came on.
§ THE LORD ADVOCATE
said, he thoroughly agreed with the remark that it was desirable there should not be too many Bills in regard to small matters. Though the Bill he himself had prepared and brought in did not propose to deal with the points brought out in the present discussion, still those points could all be raised when they were dealing with that measure. He thought when hon. Members had time to peruse it—and he regretted it had not been ready earlier—they would find that ample provisions were made for the review of the decisions of the Inferior Courts, at least in regard to matters which involved questions of law and not of fact; but he confessed he had not addressed himself to the peculiar forms of appeal which arose in cases like those which had been referred to. It would, however, as he had said before, be perfectly competent to discuss all matters connected with the subject when they got to Committee on his Bill. Certainly his desire was that there should be fair play given to all the people of this country in regard to the administration of criminal justice, and his wish was to have as satisfactory a review as possible on matters of this kind, in regard to which, he was aware, considerable interest was felt by the working classes throughout the country. He understood the hon. Member for Glasgow (Dr. Cameron) had introduced this Bill in consequence of the discussions which arose as to the Mackenzie-Bannerman case. It appeared that it was alleged 1752 that Bailie Bannerman, who tried that case, was interested in the contract at which the prisoner was working, but inquiries he had made satisfied him that he was not. At the same time, his son was interested in it, and he admitted that it would have been advisable for Bailie Bannerman to have abstained from sitting on the case. Still he was quite entitled to do so, and it appeared that the case came before him while he was presiding magistrate for the week. The offence which the man committed was not a very serious one, and probably an admonition might have satisfied justice, but a different sentence was pronounced, and he was sent to prison. An appeal was got up on his behalf, but as there was not sufficient time to enable it to be brought on at the Circuit Court, it was sent to the High Court of Justiciary. Now, it happened that there was no provision for such appeals in the High Court of Justiciary; but the course that he (the Lord Advocate) thought should have been followed was to wait for the next sitting of the Circuit Court. At the same time, he thought it desirable to make it competent to go to the High Court of Justiciary as well as to the Circuit Court, which would remove the possibility of any miscarriage of justice, and he would introduce Amendments into his Bill with this view. He would suggest that the hon. Member should rest satisfied with having raised that discussion, and instead of pursuing the Bill further, to wait to see the Amendments he (the Lord Advocate) proposed to make in the Government measure.
§ MR. FARLEY LEITH
said, that this discussion had opened up a question of great importance, and he was glad to hear the Lord Advocate proposed to deal with it. The point, however, was whether the appeals should be confined to questions of law, or whether they should be extended to irregularity of procedure which might work injustice to the prisoner. He would suggest that the hon. Member for Glasgow (Dr. Cameron) should withdraw his Bill, on the understanding that the Lord Advocate would do something to meet his views.
§ SIR EDWARD COLEBROOKE
said, he would admit that it was undesirable to have many Bills on matters of this kind; but still, as the hon. Member for Glasgow had made out a fair case for 1753 an alteration of the law, he hoped the House would not refuse to read a second time the Bill before them. Considering that its principle had been generally approved of, he thought the best way would be to read it a second time, and leave it to be determined afterwards how the principle should be carried out, on the understanding that it should not be placed in rivalry with the measure of the Lord Advocate. The right hon. and learned Lord said he had several Amendments to propose in his Bill, and as it was desirable to have that Bill before them in as complete a manner as possible, the provisions of this Bill might in Committee be introduced into the Lord Advocate's Bill.
§ DR. C. CAMERON
said, he had simply introduced the measure to remedy what appeared to him to be an injustice in the present system, and if the right hon. and learned Lord Advocate would take the matter up that would meet the end he had in view. Though he was willing to withdraw the Bill, he thought, with all deference to the right hon. and learned Lord, that the proper course would be to read it a second time pro formâ, and postpone its further consideration until the Government could state what they proposed to do in their own measure.
thought there was a general concurrence of opinion in favour of the principle of the Bill, and therefore he would appeal to the right hon. and learned Lord Advocate to agree to the second reading, and then the Committee could be postponed to a time that would allow the Lord Advocate's Bill to be brought forward, and let them see how far it met the case in point. He thought the House would stultify itself if it rejected the Bill, when it was really in favour of its principle.
§ MR. M'LAREN
approved of the suggestion. In late years there had been many Bills read a second time with the consent of the Government on former occasions, although they partly objected to them. In the present case the Lord Advocate was substantially in favour of the principle of the Bill, and therefore he hoped he would not oppose the second reading.
§ Amendment, by leave, withdraw.1754
§ THE LORD ADVOCATE
said, he would not oppose the second reading, on the understanding that he did not pledge himself to accept the details of the Bill, because it was difficult to carry out matters of the kind in legislation; the matter, however, should receive his best consideration. The course he thought would be the best to follow was to postpone the Committee on the present Bill till June. He mentioned that time because the 4th of May was fixed for his Bill; and some 10 days or so would be required to make Amendments in the direction of the main objects proposed in the measure they were discussing.
§ Main Question put, and agreed to.
§ Bill read a second time, and committed for Tuesday 1st June.