HC Deb 26 July 1876 vol 230 cc1925-39

Further Proceeding on Second Reading resumed.

MR. EVELYN ASHLEY,

in moving, that the Bill be now read a second time, said, its object was to enable prisoners, their wives and husbands, and co-prisoners, their wives and husbands, to give evidence when on their trial on a criminal process. Many of the Judges had recently expressed their dissatisfaction at the present condition of the law, and many of the more thinking of the Professional classes desired to see a change made. In the Eupion Gas Case, for example, the Lord Chief Justice of England complained that the fact of the law shutting the months of all the persons charged rendered it very difficult for the Court to get at the truth. There was, again, the Wainwright Murder Case. Was there not even now considerable doubt in the public mind as to which of the two brothers was the more guilty of that crime? Was it not manifest that if the two men could have gone into the witness box and told their own story, we should have been better able to tell which was the more guilty of the two? It had been objected to the Bill that it would prove a torture to the prisoners, as it was in Germany; but he maintained that the abuses which were connected with the examination of accused persons in foreign Courts of Justice could not occur in our own, where all tradition was in favour of fairness to the prisoner, who would not be examined by the Court, but by his own counsel, if he had one, and cross-examined by the counsel for the prosecution; and under such circumstances he was less likely to be entrapped into admitting his own guilt than he was by the policeman who arrested him, whose evidence of such admission often secured conviction. It might raise a strong inference against him if he did not go into the witness box, but it would be a just inference; and it might be enacted that no comment should be made on that fact by counsel. It was so contrary to the spirit of our judicial proceedings to tolerate anything approaching to torture that such a result need not be feared; and any apprehension of an increase of perjury, which had not followed the admission of the evidence of the parties to a suit, ought not to prevent an improvement in the law. Mere lying, as contradistinguished from legal perjury, was a thing with which we had nothing to do; and we tempted prisoners to tell lies at present. He did not lay much stress on an oath, though it was a good form to maintain; but in this case the object could be attained without an oath if the accused could be cross-examined. He believed that a system such as he proposed would go far to elicit the truth, because no one could give better evidence than those who were concerned in the transaction, and he was confident that time would overcome the natural prejudices of the Legal Profession against the change of a system which they had supported and which had supported them, and that public opinion was becoming ripe for that change.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Evelyn Ashley.)

MR. RODWELL,

in moving that the Bill be read a second time that day two months, said, he thought his hon. Friend had hardly realized the magnitude of the change to which he had called the attention of the House. The Bill, though a short and apparently a simple one, struck at the very root of the principles upon which their law was administered in Criminal Courts, and was contrary to the very instincts of the people in this country with regard to dealing with criminals. He disputed the recital in the Preamble of the Bill, that the examination of prisoners and their relatives would assist the conviction of offenders and the discovery of truth; and speaking from some experience of criminal matters, he maintained that such examination would work injustice in many instances and prevent the ascertainment of truth. It was one of the most re-actionary measures he had ever known to be introduced into the House, and would be quite unworkable. So far from being an improvement, it would be a return to the practice of the dark ages, when it was the business of those who presided at criminal inquiries to do all they could to entrap the accused into fatal admissions. The result of the proposed change would often be that the hardened, guilty offender would get the benefit of his evidence, while a timid, nervous person, though innocent, would involve himself in greater difficulty. A man often derived more benefit from the fact that the mouth of his wife was closed than he could possibly derive from the evidence of the wife. If we could not convict an offender from the evidence of independent persons, it was better he should escape than that we should run the risk of putting an innocent man in jeopardy. He could, if necessary, quote the opinions of many Judges against the proposed change, and the Lord Chief Justice, in the opinion which had been quoted by the hon. Member, referred to the hardship of including several persons in one indictment, so that one could not be examined in favour of another. He would conclude by moving the rejection of the Bill.

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

Question proposed, "That the word 'now' stand part of the Question."

MR. SERJEANT SIMON

said, he was, and had always been, a law reformer, but he could not support the Bill, because it was based entirely upon theoretical principles, and was not calculated to cure any practical evil which experience had brought to light. He did not hesitate to say that having had a large experience in criminal practice, he had never known an instance in which innocence had suffered, or justice been defeated, in consequence of the want of the power proposed to be given by this Bill. All the points were generally brought in evidence before the jury. He thought that a Bill of this kind, involving questions of the greatest magnitude, ought not to be brought in at this advanced stage of the Session, when there was not sufficient time to consider and discuss its provisions; and looking at the great changes which it proposed, he begged to say that he could not give his assent to it. Instead of reform, he regarded it as a retrograde Bill—a Bill of torture, going back to the dark ages, and not a progressive Bill. A fundamental principle of our criminal jurisprudence was, that a person accused of crime was held to be innocent until his guilt was proved. But this Bill would practically reverse that principle. The so-called permission to the accused to tender himself for examination, was no permission at all, but, in practice, would be compulsory, for the prisoner who did not tender himself, would be open to adverse comment on the part of the prosecution for not doing so. The state of things then would be this—that instead of the prosecution being obliged to prove their case beyond reasonable doubt, it would be the duty of the accused to prove his innocence. Another important principle was also at stake, and one that deeply concerned the due administration of justice, he meant the public confidence in the impartiality of our Judges. At present the Judge sat to hear and take down the evidence, interfering in no way with, the prisoner in the conduct of his case, or with the witnesses, unless to prevent improper evidence being given. Indeed, it was his duty to interfere for the protection of the prisoner oven against himself, or, sometimes, the imprudence of his counsel. Under the Bill, if it became law, the timid prisoner—the innocent prisoner—and not the experienced rogue—would be placed at a disadvantage. He had often seen this in Court, and many a time had he said to himself—"How fortunate it is that I am not obliged to call upon the prisoner as a witness, and subject a respectable inexperienced man to the ordeal of a cross-examination. "At present there was confidence in our Courts of Justice, because the Judge sat there calm and impartial, and at the close of the evidence he summed it up, leaving out nothing which told in favour of the prisoner, and with that aid the jury were enabled to arrive at a proper decision. This gave confidence in the administration of justice; but if an accused person could be examined as a witness and cross-examined, he believed that they would have scenes of wrangling between Judges and prisoners which would become a public scandal. The prisoner would inevitably be tendered for examination in every case; a scene of wrangling between him and the Judge would often ensue; the dignity of the Bench would be lowered, and the public confidence in the impartiality of our Judges and in the administration of justice be shaken. He asserted that it would be a great improvement if the law were altered so as to permit a husband to be called as a witness for a wife and a wife for a husband; but in regard to the other principles of the measure, he was satisfied that the change proposed ought not to be adopted. He regretted that the Session was so late that he could not state all his objections to this Bill; but he would conclude by expressing his earnest hope that the Bill would not pass, and he only regretted that a Bill dealing with a matter of such importance could not have been brought forward at a time when the subject could have been fully discussed.

MR. RUSSELL GURNEY

said, he also regretted that the Bill had come on for discussion so late in the Session, when there was so little probability that it would become law. He differed en- tirely, in his experience of the administration of justice from his hon. and learned Friend who had just spoken (Mr. Serjeant Simon); but he could not permit the question to pass away without expressing his opinion upon it. Having been brought up to the Profession almost from a child, he had been favourable to the institutions and practices that he found in existence; but his experience, the experience of many years, as Recorder of London and one of the principal Judges of the Central Criminal Court, had convinced him that it was most important for the interests of justice—for the conviction of the guilty and the acquittal of the innocent—that some such change as was now proposed should be made in the law of this country. Wives now could not be examined where their husbands were concerned, or husbands for their wives, and nothing more absurd could be conceived. Very often the only person who could prove a man's innocence was the wife, especially as to events which were alleged to have occurred at night. If the accused husband was a good, moral man and lived with his wife, her mouth was closed; but if he were an immoral man and lived with a mistress, she could be examined in his defence. All the objections which had been urged against that portion of the Bill which proposed to change the law in that respect had been urged against previous changes of the law which, nevertheless, had been found to work beneficially and materially to promote the interests of justice, as, for instance, in the case of allowing the parties interested in civil suits to give evidence. He had lately been reading the Memoir of Lord Althorp, in which it was stated that that nobleman brought forward a Small Debts Bill in which he proposed to give power to the parties to be examined. A Judge of those days said of the proposal that it was most barbarous and abhorrent, and that nothing would result from it but unmitigated perjury. But the change had been made, and what had been the result? No person who practised in our Courts wished to return to the old system. No doubt, perjury was occasionally committed, yet the alteration in the law had tended most materially to the elucidation of truth. Justice was more speedily and more certainly arrived at, and under the species of compulsion that now existed the defendant was often obliged to admit the debt which otherwise he might have successfully disputed. But we had gone rather further than altering the law in mere civil actions. When the Divorce Courts were established, there were universal complaints from women that their mouths were closed in matters of supreme importance to them. That was felt to be a great hardship, and by universal consent the parties to a suit were allowed to be examined. In no cases was there a stronger temptation to commit perjury, and perjury was no doubt sometimes committed, but the truth was more certainly arrived at. He now asked for the same relief for the innocent prisoner who stood at the bar charged with some criminal offence, and he could not, with his experience, say with the hon. and learned Member for Dewsbury, that the change was unnecessary. He had often felt when he entertained doubts about a case that those doubts would be entirely removed if he could put six questions to the prisoner. In two cases of forgery which had occurred before him, women had been called whose evidence could not have been received if they had been the wives of the prisoners. One woman told the truth, and most reluctantly established the case on the part of the prosecution. The prisoner was according convicted; but if she had been married to the prisoner, he would wrongly have been acquitted, because her mouth would have been stopped. The other woman was not called by the prosecution, but her evidence in the prisoner's favour soon broke down on cross-examination, and her statement having been found to be untrue, the prisoner was in that case also convicted. If those women had been the wives of the prisoners, and one of them had been convicted, application would have been made to the Home Office for the release of the prisoner upon the affidavits of those women, and when they were referred to him, as they probably would have been, for his report, he might have found it very difficult to come to the conclusion which he had arrived at without hesitation when the women were examined in open Court. He was not proceeding in this matter upon theory; but upon facts which had forced themselves upon him in course of his judicial life. The only misgiving he had had in regard to the proposed change was as to how far the popular feeling would go with it. During the period, little short of two years, which he recently spent in the United States, he lost no opportunity of visiting the Criminal Courts to see the working of this system. He heard several trials in which the prisoners were examined, and in every case their evidence tended to the elucidation of the truth. He was specially struck by the manner in which this system worked for the deliverance of the innocent. He was present at one trial where the prisoner admitted that he had been previously convicted, and of the same sort of offence. He gave, however, as a witness, such a complete explanation of all the circumstances against him, and his evidence was so completely confirmed, that he was at once acquitted by the jury. He might go further than his own experience, because he lost no opportunity of asking the opinion of the Judges and. the prosecuting officers, and one and all agreed that the change had been an improvement. The Chief Justice of Maine, Justice Appleton, stated that the new system had worked admirably, and had given great satisfaction to the Judge, the Bar, and the public. Innocent men were able to give important evidence in their own defence, and the Chief Justice said he regarded the change as absolutely indispensable to the due administration of the law. The district prosecuting attorneys described the change as having assisted greatly in bringing the guilty to punishment, while the innocent might rejoice in the opportunity thus afforded of proving their innocence. The prosecuting attorney for the district of New York stated that the Bench and the Bar were once all opposed to the change, but they were now unanimous in its favour. This officer told him that in seven cases in which he had conducted the prosecution he had, after hearing the explanation of the prisoner, thrown up the case. It was said that, although the Bill only provided that a prisoner "might" submit himself as a witness, yet the effect must be that he would be compelled to get into the box, or, if he did not, his guilt would be presumed. That was, he admitted, a somewhat strong point; but the objection might be, to some extent, obviated by providing that the Judge should be bound to tell the jury that they were to give their decision upon the evidence, and not to draw any inference from the fact that the prisoner had not chosen to be examined. This was the law in the United States; and it had the effect, at any rate, of preventing the prosecuting counsel from using this as a topic against the prisoner. Unless it could be alleged that our Judges were unfit for their high offices, he had no fear of any change in their manner or demeanour as a consequence of the change now proposed. He had felt it his duty to offer to the House such assistance in coming to a right decision as might be derived from a not inconsiderable experience in criminal trials, and he trusted that the House would affirm the principle of the Bill by reading it a second time.

SIR THOMAS CHAMBERS

regretted to be obliged to differ from his right hon. and learned Friend the Recorder. Speaking from his experience as Common Serjeant, he contended that his right hon. and learned Friend had not made out any case for subverting the principles upon which the criminal law of this country was administered. He did not believe there was one case in a hundred about which the Judges had any doubt; and, that being so, where was the necessity for the Bill? Was it contended that innocent people were largely convicted? No one pretended to say that. It was the rarest thing possible for an innocent person to be convicted in the English Courts. Again, were the guilty not convicted? No one ever pretended to say that. It was said that there was a great number of persons, of whose guilt there was no moral doubt, who were acquitted by reason of the technicalities—the just technicalities—of the law, which required that a case should be proved beyond the region of doubt. He utterly denied that proposition; and, moreover, if it had been so, he was certain that the evil would not be corrected by the Bill. A great point had been made as to the desirability of getting at the truth; but the truth was only worth a certain purchase, and if it required the assistance of the present Bill to establish a case of petty larceny, then he said that the price paid for the truth was too great. The chances, too, were that the prisoners would add perjury to the crimes with which they stood charged, merely making the case of the prosecution against them stronger than before. Everybody knew that there was a great amount of perjury committed in the Divorce and Civil Courts—committed, too, under far less pressure than existed in the Criminal Courts. It was said by his right hon. and learned Friend that the system had been found to work in America; but no one would deny, he thought, that acts of perjury had been largely multiplied since the change in the law took place. It was immoral—immoral in the highest degree—that the House should legislate for the admission of witnesses who would get into the box under influences which would make it imposssible for them to tell the truth. It was the principle of the law as it stood that it was not for a prisoner to prove his innocence, but for the prosecution to make out the case it had brought against him; and if this proposed change of the law came about that axiom could not be maintained. Differing as he did from his right hon. and learned Friend, with great diffidence he felt bound to declare that anything more injurious, more calculated to affect the credit of the administration of the law in this country than the proposed changes, he could not imagine.

SIR EARDLEY WILMOT

said, he had listened most attentively to his right hon. and learned Friend the Recorder of London, whose great experience enabled him to speak with authority; but, after all he had heard, his (Sir Eardley Wilmot's) own experience had brought him to a contrary conclusion, and he was constrained to oppose the Bill, because he believed the proposed alteration in the law would work injustice. It would neither tend to the elucidation of truth, nor to the protection of innocence. He concurred with much of what had been said by the hon. and learned Common Serjeant (Sir Thomas Chambers). In the County Courts, of which he had much experience, there was no doubt some perjury; but he believed nothing like that which would take place in Criminal Courts, with, of course, greater injury to public morals and the administration of public justice. There might be some advantage in admitting a wife as witness for her husband, and a husband as witness for his wife, and he cordially approved of such a proposal; but to the general principle of the Bill he could not give his support.

MR. KNATCHBULL-HUGESSEN

said, that having had some experience at the Home Office and also as chairman of quarter sessions, he was unwilling to let hon. and learned Gentlemen of the long robe have an entire monopoly of the debate. The permission proposed to be given by the Bill to a prisoner to be examined, if not taken advantage of, must tend materially to the disadvantage of that prisoner; for if he refused, having as he would have under the Bill, the option to be examined, no power on earth could prevent that fact operating against him in the minds of the Jury. This would be much more the case in such an instance as that quoted by the right hon. and learned Recorder, where a man admitted, in answer to his own counsel, a previous conviction for an offence similar to that with which he was charged and afterwards satisfactorily established his innocence of that charge. Suppose the prosecuting counsel had elicited the fact of the previous conviction, and the man's defence had not been so conclusively satisfactory, could any one doubt that the fact of the previous conviction would have weighed heavily against him in the mind of the jury? Chairmen of quarter sessions had recommitted lists before them when they tried prisoners, and he owned that he himself in charging the jury found it sometimes one of the most difficult parts of his duty so to exclude from his mind the knowledge of previous convictions as to prevent its giving a bias to his analysis of the evidence. The law of England was that a prisoner should be tried by the evidence brought upon the particular charge against him, and he (Mr. Knatchbull-Hugessen) deprecated the introduction of anything which would prejudice the jury. Then, again, as regarded the instance brought by the right hon. and learned Recorder, of two men convicted by the evidence of their mistresses, who could not have given evidence if they had been wives. The first woman told the truth and convicted her paramour. Well, suppose she had been his wife, was there not something repugnant to English feeling in the idea of obtaining a conviction against a prisoner by the evidence of his wife? Moreover, what a terrible temptation you would hold out to the wife to commit perjury? But take the right hon. and learned Recorder's second prisoner. His mistress attempted to establish his innocence by lying, but broke down under cross-examination. But suppose the man had been really innocent, and the wife, nervous and full of anxiety, had been called to prove his innocence. Might it not have happened that her very interest in the case would have caused her to break down under the astute cross-examination of counsel, and her evidence might have helped to convict an innocent man just as that of the mistress helped to convict a man who was really guilty? Upon the whole, he (Mr. Knatchbull-Hugessen) regarded the Bill as one which would militate very greatly against the interest of the prisoners, and, in spite of his respect for the right hon. and learned Recorder, he could not support it. He apprehended that his hon. Friend the Member for Poole (Mr. Evelyn Ashley) would be satisfied for the present Session with the ventilation which the subject had received; and, for himself, he must say that upon the whole he did not think a sufficient case had been made out for a change in the law of England in this important particular, and he felt bound to say that the Preamble of the Bill was not proven.

THE ATTORNEY GENERAL,

in opposing the Bill, said that, not having been present during the entire debate, he would endeavour to avoid urging at any length arguments which he understood had been already submitted to the House. He was not one of those who thought that private Members were to be blamed for bringing forward Bills of that nature. On the contrary, great advantage, he thought, often resulted from the discussion of such questions as his hon. Friend opposite (Mr. Evelyn Ashley)had brought before the House. The Bill was one of the greatest importance, because if adopted it would effect a radical and sweeping change in the administration of our Criminal Law, and that not only in England, but also in Ireland. Its provisions would apply to every prisoner charged with an indictable offence, or an offence punishable on summary conviction. In either case it would allow the prisoner to submit himself for cross-examination. The Bill said it should be optional for the accused person to do so; but it was clear that if a prisoner failed to avail himself of an opportunity of explaining his position, by giving evidence on oath, his doom would be sealed. He was ready to admit that there was a great amount of plausibility in the Bill—that there was a great deal in it that was seductive, and that the Bill had been supported by arguments of great force; but, nevertheless, he had come to the conclusion that the measure was one that it was not advisable should become law. First, he thought that if the Bill passed, it would tend to weaken the confidence which at present existed in the administration of justice in this country; and, secondly, that whilst they might by it try to bring home a particular crime to a particular person, it would beat the expense of creating even a greater crime than that with which the person stood charged. The widespread and well-founded confidence of the country in the administration of criminal law had its origin in the feeling that although occasionally a criminal might escape, it was almost impossible under our system for an innocent person to be convicted. No man was put upon his trial unless some facts and circumstances of a suspicious character could be proved against him, and if he declined to give an answer the counsel for the prosecution would press forcibly upon the jury the argument that he had no answer to give, and in nine cases out of ten such reasoning would be convincing. Although the Bill was plausible in its object of allowing a prisoner to give evidence, its effect would be to compel him to do so; and, if he did, what would happen? They would have an ignorant, careless, inexperienced man on one side, and pitted against him an astute, trained advocate conducting the prosecution. Would they like to see any such prisoner, however desirous he might be of telling the truth, subjected to an ordeal in which he might be cross-examined as to every event of his life—as to some things which he might not be desirous of disclosing at all, some which he would hesitate to speak to because they would reflect upon a third person, some as to which he might give an evasive answer, and all which circumstances could not fail to weigh against him with the jury? But it was said that the prisoner might be examined by the Judge. Well, he hoped they would not witness the day in which a Judge might be seen engaged in a contest with the prisoner he was trying. The moment a Judge descended from the calm, serene atmosphere with which he ought to be surrounded, to the region of turmoil and advocacy, that moment he would lose the fairness and impartiality which ought to distinguish all who held the high office of a Judge. It might be that he would do so unconsciously; but, even without desiring to do so, he could not help entering into a contest with the prisoner which would, at least, have the effect of shaking confidence in his perfect impartiality. But it was said that the system worked well in America and other countries; and he always remarked that when any of our institutions were arraigned they were invariably referred to those of other countries, which were said to be superior to our own. For his part, he very much doubted whether they were; and this he held—that, so far as the administration of justice was concerned, England stood supreme among all the nations of the world. Among other reasons he might mention which led him to oppose the Bill, he would allude to only one, and that was that in the whole calendar there was hardly an offence of greater heinousness than perjury, for by reason of it men might lose their estates, reputation, and liberty; and yet the Bill would offer a premium for that grave and detestable crime. For these and many other reasons, he was convinced, as he had said, that such a measure ought not to pass into law.

MR. WHALLEY

thought that the arguments of the hon. and learned Gentleman who had just sat down were disposed of by the experience of the Civil Courts, in which no injurious consequences or practical inconvenience had been found to arise from the fact that interested parties were allowed to give evidence in their own cases. The present system left accused persons almost entirely at the mercy of the police, who frequently perjured themselves and conspired together in order to secure convictions. ["Oh, oh!"] There was great and growing dissatisfaction in many places against the conduct of the police, and he was afraid that in some cases policemen were continued in their office who ought to have been removed. He hoped that the existing law would be modified so far as persons charged with misdemeanours were concerned, if the Amendment did not go further. He could assure the hon. and learned Attorney General that he "inherited a pledge" from his Predecessors in office to give this matter full and practical consideration.

MR. EVELYN ASHLEY,

referring to an observation of the hon. and learned Attorney General, said, that if the Bill had been proceeded with, many of the arguments against it would have been answered as he would have proposed the insertion of the provisions which he intimated the first time he spoke upon the measure—that neither the Judge nor the prosecuting counsel should make any remarks upon the absence of a prisoner from the box, and that there should be nocross-examination of a prisoner as to previous character or previous convictions. He was perfectly satisfied with the tone of the debate, and he regarded the speech in favour of the Bill by the right hon. and learned Recorder as calculated greatly to assist the progress of opinion on the question. With the permission of the House, he would withdraw the Motion for the second reading of the Bill.

Amendment and Motion, by leave, withdrawn.

Bill withdrawn.