HC Deb 23 February 1880 vol 250 cc1236-48

Order for Second Reading read.


in rising to move that the Bill be now read a second time, said, it was, at least by name, very well known to the House. It would not be necessary for him minutely to describe the provisions of this voluminous measure, as he had explained them with considerable elaboration on a former occasion, and it had also been explained in various pamphlets and prints which had been published to the world. It would suffice to say that it attempted what had never, he believed, been attempted before—the codification of a substantial part of the law. It proposed to state in a number of terse, lucid, and comprehensive sentences, the law of England and Ireland upon the subject of ordinary crime, and also the law relating to the procedure by indictment against those who committed such crimes. This codification was exceedingly desirable, and would, if accomplished in this instance, set an example for codification of the law generally. But, besides this, the Bill proposed to alter the existing law in several important respects; and he thought that when the proposed alterations were carefully considered they would all appear to be great amendments of the law. He would not attempt that evening to deal with all the alterations; he would merely glance at the most important and salient. In the first part of the Bill, which related to the commission of offences, the main alterations were—1, The abolition of the distinction between felony and misdemeanours, which would get rid of a number of very absurd and monstrous consequences; 2, The introduction of certain amendments into the law with regard to the doctrine of compulsion and coercion; 3, The improvement of the law of homicide, which involved the extinction of the universally condemned doctrine of constructive malice; and 4, The simplification of the law relating to theft and fraud. These were the principal alterations of the first part of the Bill. In the part of the Bill which related to procedure, several alterations were to be found—1, Provisions getting rid of the absurdities arising under the existing law from the doctrine of venue; 2, Provisions for changing the place of trial when necessary; 3, Provisions for the trial of criminals by special juries in cases of exceptional difficulty; 4, Provisions for the simplification of indictments; 5, Provisions for the keeping of a simple record of the proceedings, and the sweeping away of technicalities which rendered proceedings by way of writ of error next door to impossible; 6, Enactments as to juries and the challenging of jurors; 7, Provision enabling the jury to have a view when required; 8, Provisions giving a more satisfactory appeal in criminal cases upon points of law; 9, Enactments enabling prisoners in proper cases to obtain new trials; and 10, Provisions altering the law to a considerable extent as to the costs of prosecutions. Hon. Members would recollect that the Criminal Code was brought to the attention of the House for the first time in 1878. A Bill was then introduced which had been prepared by Sir James Stephen—now Mr. Justice Stephen—and which was founded on that admirable work calledA Digest of the Criminal Law,which, after expending upon it many years of deep thought and patient toil, that gentleman presented to the public. Owing to the pressure of Public Business, the Bill of 1878, though favourably received, could not be proceeded with. After the close of the Session of 1878, the Government submitted the measure to the examination of a Commission composed of lawyers of the greatest eminence—namely, Lord Blackburn, Mr. Justice Lush, Mr. Justice Barry, and Sir James Stephen. The object the Government had in view when this Commission was appointed was to subject the all-important measure with which they were dealing to a most thorough and searching examination and criticism. As it was proposed to give in the Code a succinct statement of the law, it was obvious that it was most desirable that the accuracy of such statement should be ascertained and vouched by men of the highest authority; and as it was proposed by the Code to alter in several respects the existing law, it was obvious that it was most desirable that the alterations should be considered by those who were, from their training, experience, and ability, fitted to form a judgment upon them. The Commissioners entered upon their labours, and continued them, without intermission, for many months. During this period every provision of the Code, indeed, he might say almost every word, was made the subject of the most minute and careful consideration. Very extensive alterations were made in the structure of the Bill, although the foundations upon which it rested remained undisturbed; much matter was expunged, and much fresh matter was introduced. The more he had examined the Criminal Code Bill, the more he had sifted and scrutinized its provisions, the more forcibly had his mind been impressed with the enormous amount of labour the Commissioners bestowed upon it. It was impossible for anyone, even the most experienced lawyer, unless he had devoted himself to the subject, and had made it, for a time at all events, his especial study, thoroughly to appreciate the pains taken by the Commissioners with the work they undertook to perform. At length the task of the Commissioners was completed. They finally settled the draft Bill, and reported to Her Majesty the result of their deliberations. The Bill thus settled by the Commissioners was introduced in that House last Session some time after Parliament had assembled. Unfortunately, owing to causes to which it was not necessary for him to refer, very little opportunity for a discussion of the measure presented itself. However, although the provisions of the measure were not made the subject of debate, such as he could have wished for it, nevertheless the Bill excited great attention and interest both in and out of Parliament. Very many hon. and learned Members, and many hon. Gentlemen who were not in the law, but who took an interest in the administration of justice in this country, studied the measure with the greatest possible care, and proposed a variety of Amendments; some of these were formulated and placed on the Notice Paper; and, furthermore, men outside Parliament—men of great eminence and experience—also subjected the Code to searching criticism, and suggested several alterations which they considered would be improvements. Among those who devoted themselves to a careful investigation of the subject was, as the House would well remember, the Lord Chief Justice of England, who, in June last, addressed to him, as the Member of the Government who had charge of the Bill, a long letter containing criticisms upon the earlier parts of the Bill of a most valuable character; and in this letter, which the House would remember he had caused, as soon as he received it, to be made a Parliamentary Paper, his Lordship had been good enough to promise further letters, in which he would deal with other portions of the subject. This promise had, he was happy to say, been to a certain extent fulfilled; for only the other day he received from his Lordship a long letter of criticisms upon some portions of the Bill, and he had every reason to believe that he should be favoured with other letters on the remaining parts of the measure in the course of a few weeks. He (the Attorney General) was not surprised that, notwithstanding all the care and pains which had been bestowed upon it, the great work of the Commissioners, or rather, he should say, the great work of Sir James Stephen, revised and corrected and amplified by the Commissioners, was subjected to the criticisms to which he had referred, and that suggestions for its amendment should have been made. The fact was that upon a subject of such nicety, such intricacy, such difficulty, it was impossible for any set of men, however able, however learned and experienced, to frame a Bill, which would be a perfect Bill, entirely free from objection, and incapable of improvement. But he was justified in saying that most of the criticisms to which he had alluded were, however, directed much more to the form than to the substance of the Bill. But little objection was made to the statement of the existing law which the Bill contained, nor was much objection made to the alterations in the law recommended by the Commissioners. It was thought, however, that a good deal of improvement might be effected in the drafting of the Bill. It was said that the arrangement of the clauses might be considerably improved, that many clauses might be very much condensed and simplified, and that some of the definitions of crimes might be rendered a good deal clearer. These suggestions were brought to the attention of the Government and considered carefully, and the Government came to the resolution that while they would not allow any alteration in the substance of the Bill, they were quite willing, nay, anxious, to avail themselves of all the suggestions for such alterations in the form, if the carrying of them out would really improve the measure in that respect. It consequently fell to his lot to consider the Code as it issued from the hands of the Commissioners more carefully, if that was possible, than before, together with the proposals made for its alteration. In the task which thus devolved upon him he had the assistance of Gentlemen upon whose judgment he could confidently rely, and in future discussions he would have an opportunity of mentioning the names of some of those by whom he had been assisted. He might, however, mention at once that the acumen, zeal, and patience displayed by the hon. and learned Member for Chatham (Mr. Gorst), who was one of those Gentlemen, had filled him with admiration, and on behalf of the Government he begged to thank the hon. and learned Gentleman for his services. The result of the investigation that was thus made of the Bill, and of the various proposals for its amendment, was that certain alterations in the drafting were effected—alterations in form and not in substance, resulting in the Bill being presented in a somewhat neater garb than before. He had submitted to the Commissioners from time to time the drafts which were prepared, and he had obtained from them their approval of the great bulk of the alterations that had been made. The Commissioners authorized him to state explicitly that the Bill was still in substance their measure, and that they thought that it might be introduced into the House as such. There were certain matters about which they had suggested alterations, which would be more easily dealt with in the Select Committee to which he proposed to refer it, and who would, no doubt, adopt them. When hon. Members should come to consider the measure they would find that the Schedule of enactments to be repealed, which formed the concluding part of the Bill of 1879, had been excluded from the present measure, the reason being that the Government thought it would be more desirable to introduce that Schedule into a separate Bill, which would be brought in during the present Session. The view of the Government was that in this way more time could be given to the preparation of this Schedule, and the more time that could be given to it the better. During the course of every discussion upon the Bill, either in Committee or before the House, fresh enactments which might be repealed would be disclosed. The Government, therefore, thought it would be better and simpler on the whole to have the repeal enactments in a separate Schedule. It only remained to add that if the Bill were read a second time he proposed to refer it to a Select Committee, upon which he should place the names of the most eminent lawyers in the House, and of statesmen of great eminence. The object of the Government in taking this course was to have the measure subjected afresh to severe criticism, and thus to make it, if possible, a perfect Bill. Personally, he was exceedingly anxious that the Bill should pass into law during this Session; but he was not insensible of the difficulties which must attend the passing of so large a measure, containing nearly 500 sections. Therefore, if it was admissible for him to do so, he should ask that the Select Committee which he proposed should be appointed should be armed with power to divide the measure into a number of Bills, if they should think proper so to divide it. He trusted that by adopting this course, if by mischance he should not be able to get the whole Bill passed this Session, a substantial portion of the measure might become law. He begged, in conclusion, to move the Second Reading of the Bill.

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


thought the Government had taken every possible step they could take to bring the measure into a shape that would commend it to the House; and the course now proposed to be pursued would also, in his opinion, be approved by hon. Members. It would, not, however, be without interest to look at its history, and see how it had grown to its present dimensions. When the work of Mr. Justice Stephen was brought before the House in 1878 he believed they all felt that he was entitled not only to great credit, but to the gratitude of the House, for having made the attempt to codify the Criminal Law. But appeals were made to hon. Members both in and out of the House to accept the measure then framed as it stood, and they were told that it would be regarded as obstruction if the measure were not accepted in its entirety as then drawn, if it were not accepted. He thought, however, it had been proved—and his hon. and learned Friend would probably agree with him—that it would have been almost a calamity if the Bill had been accepted in the crude shape in which it was produced. Again, in 1879, notwithstanding the labours of the Commissioners, his hon. and learned Friend the Attorney General found it necessary not to proceed with haste in legislating on the subject, though he had almost scolded him (Sir Henry James) for hinting at such a possibility. His hon. and learned Friend had apparently found that the Common Law of England could not be consolidated, certainly not codified, without great consideration. But matters had since progressed. As soon as the Commis- sioners had performed their duty, undoubtedly in the most able manner, the Chief Justice of England brought his great acumen and knowledge to bear upon the subject, and pointed out defects which ought to be remedied. The hon. and learned Attorney General had accepted to a great extent those suggestions, and he hoped the promise made of further suggestions would be fulfilled when the Bill was referred to the Select Committee. He heard one suggestion by his hon. and learned Friend with great satisfaction. Last year he suggested that the Bill of 500 clauses should be divided into sections, and that they should be content to pass them piecemeal one Session after another. His hon. and learned Friend seemed to think that it would not be more difficult to dispose of such a measure than the Merchant Shipping Bill of 1854. It should, however, be remembered that that Bill dealt with only one subject, while this Bill dealt with many of great political and social importance. But, upon reflection, his hon. and learned Friend, he was happy to find, now thought it was safest to pursue the course he had suggested—that the Committee should have power to divide the measure into several Bills or sections, and that the House should pass as many as they could during the present Session, with the view of consolidating them when all had passed. His hon. and learned Friend stated that he had dealt with the arrangement of the Bill rather than the substance; but, notwithstanding the great learning of those who formed the Royal Commission, the House would find it necessary to revise some portions of their work. It was the duty of the House to do so, and its duty alone. When they came to consider the definition of high treason, what was sedition, what was an unlawful assembly, and the whole question of punishments, they would have to consider whether the legislation would be beneficial which merely perpetuated that which had formerly existed. Another subject was open to discussion—whether there should be class juries. He mentioned these topics only by way of example, as justifying the course adopted by his hon. and learned Friend of dealing with the Bill in different sections. The Commissioners had not apparently felt it their duty to exercise their feel- ings of humanity or judgment as politicians, but had, in most cases, merely consolidated the law as it existed. He had only one practical suggestion to make—that his hon. and learned Friend should inform the House what alterations had been made in the law; what was new in the Bill, and what was old, so that they might bring their judgments to bear upon the expediency, either of maintaining the one, or giving effect to the other. Speaking for himself, and for many of his hon. and learned Friends on that side of the House, he desired to say that, looking at the course which the Government had taken in order to form a wise measure of codification, they would be ready to give their best assistance, with the view of saving as much public time as possible, and the hope of carrying that Session a Bill which he hoped would prove beneficial to the public. If his hon. and learned Friend would accept their aid, they should be disposed to reduce their criticism, not to minute matters, but to what was substantial.


apprehended that the hon. and learned Attorney General was placing a work on the shoulders of the Select Committee which some of them were not prepared to undertake, because they had not sufficiently studied the matter. It would be necessary to proceed cautiously. There might be some difference of opinion on many of the points urged by the hon. and learned Member for Taunton (Sir Henry James); but they were well worthy of consideration. For instance, with regard to Unlawful Assembly, he did not find under the old precedents any such punishable offence, unless there were riotous proceedings, and then punishment might follow. Under this Bill, however, a harmless gathering—he might say, a cricket match—might, under certain circumstances, be turned into an unlawful assembly, and the persons attending it be punished. There must be much debate on that and many other points—such, for instance, as their old friend flogging, to which a considerable increase was given, the Law of Libel, and insanity, in murder cases. These would require the very closest attention from the Select Committee, the law being in some instances formulated for the first time. In his opinion, the suggestion of the hon. and learned Mem- ber for Taunton, that the Bill should be taken in compartments or sections, was a wise one. The Judges who were engaged on the work had arrived at a conclusion which would be a substantial stepping-stone for the House; but, nevertheless, the revision of such a work would occupy a considerable time. He hoped ample time would be afforded for the discussion of this very great and valuable measure.


thought the subject should be discussed in a practical spirit, and not from the point of view taken by those who desired Utopian perfection. If all the questions of principle involved in the re-enactment of the law relating to high treason, unlawful assemblies, the composition of juries, libel, insanity, and other matters which had been mentioned were to be debated in the Committee and again when the Bill came before the House, they might discard as impracticable the project of passing a Criminal Code. A great point would be gained if the Code did nothing more than declare the law as it stood. He appealed to hon. and learned Gentlemen to put aside their individual bias in this matter, and by that means they would do a service to their country, though it might be at the cost of some violence to their own feelings. He ventured to think that no Bill which had been brought before the House in recent years was of so much importance as this one. He did not, however, see how it was possible to deal satisfactorily in one measure with so many different subjects, if the views of the hon. and learned Members who had addressed the House were accepted, and the whole of the Criminal Law were to be passed in review and made the subject of amendment. He advised the Government to be content for the present with a declaratory scheme, including only such Amendments as would be likely to meet with general acceptance.


said, that, having had a good deal to do with Criminal Codes in another part of the world, he wished to say a few words with respect to one view of the subject. He was not very clear as to the nature of the Bill. They all knew that consolidating the law was a very different thing from framing a Code. A Code was not a mere consolidation; but the formation of a body of law drawing its materials, not solely from the existing law in this country, but from the law of other parts of the world, so as to form as far as they could a perfect Code of Law. He differed very much from the observations of the hon. Member who had just spoken (Mr. Paget). He held that it should be something more than a consolidation—that it should be a real Code. It was to be regretted that it was only to be a Code for one part of the Kingdom only, and not for the whole of the United Kingdom. There would be a great advantage in having the new Code extending to the whole Kingdom. He need not remind the House that there was a part of the United Kingdom called Scotland, whose Criminal Law was of great merit, and possessed some considerable advantages over the law of England. He held that there would be great advantage to England if in this codification of its law several principles of Scotch law were introduced. He felt much regret, when a great work of this kind was undertaken, that we were not going to have what the great countries of Europe, France and Germany had—a Code of Law which should be a general Code for the whole of the United Kingdom. He ventured to think there were one or two subjects in respect of which great advantage might be derived from the law of Scotland. The hon. and learned Attorney General had alluded to the Amendment proposed in regard to juries; but he did not know that the hon. and learned Gentleman proposed any radical change. He did not understand that it was intended to get rid of the necessity for unanimity on the part of juries which the English law required. The Scotch law did not require unanimity, and in that respect the Scotch law had worked exceedingly well. The hon. and learned Gentleman had not alluded either to the examination of the accused, in respect to which Scotland had also an advantage over England. When originally brought in, the Bill proposed examination of the accused. If the hon. and learned Gentleman compared the law of Scotland with that of England in this respect, he would find that the former country had a great advantage over the latter. He was afraid it could hardly be accomplished that Session; but ho could not help expressing, as a Scotch Member, regret that they were not to have a Code which should be a Code for the whole of the United Kingdom.


did not think it possible for greater pains to be taken to pass a Code than were taken in this matter. One of the most accomplished lawyers had prepared it, and it had afterwards been referred to three most learned and experienced Judges, assisted by its author. The speech of the hon. Member for East Somerset (Mr. Paget) was, however, very discouraging, because the hon. Gentleman said that if presented as a whole it would be quite impossible it should be passed by the House of Commons. But a mere consolidation would be a convenience only for practitioners, and they did not require it much, for they had got the law at their fingers' ends, or knew where to find it. A mere consolidation, therefore, was not of much moment. But if new provisions and alterations in the Criminal Law were introduced that House would fail in its duty if it allowed such changes to passsub silentio.Any measure, therefore, going beyond that, to deal with such momentous matters as were involved in the present Bill, ought to be put forward only under circumstances which would admit of if being thoroughly discussed. He never could bring himself to believe that a Criminal Code could be of much use. It was a great mistake to suppose that, as soon as you had the Code, you could open the book and ascertain the law with certainty. The instant it was passed a series of points would be remitted to the Court for Crown Cases Reserved, and for 25 years we should have as many volumes of decisions. At least, if we had not, our experience would be contrary to our own experience and to that of the whole world. Speaking broadly, our condition as to crime was not unsatisfactory, considering the increase of the population. Crimes against which the efficiency of the police afforded protection were diminishing; and the increase was in frauds, embezzlements, and libels, against which the efficiency of the police did not afford protection. If it was desirable to introduce better definitions of murder, or to abolish the distinction between felonies and misdemeanours, these things could be done by single clauses; but he was very doubtful whether, in passing a larger measure, they would turn out a very satisfactory piece of work. He thought the Code might be divided into sections, and considered and discussed in that way. He would assist in perfecting the Bill as far as possible; but he was not sanguine as to any very great results being obtained.


said, that throughout the country there was a general feeling that a Criminal Code was urgently required, and that the passing of such a Bill would confer a great boon upon the whole of the community. He hoped that there would be a good representation of laymen on the Committee. Whatever was done, he feared it would be impossible to pass a complete measure in any one Session, even if the Committee satdie in diem.He hoped, at any rate, that this would not be taken up as a Party question.

Question put, andagreed to.

Bill read a second time.

Motion made, and Question proposed, "That the said Bill be referred to a Select Committee."—(Mr. Attorney General.)


asked whether it was to be a large or a small Committee?


said, it must necessarily be a large one, including many of the most eminent lawyers of the House. He should be quite prepared to furnish the Members of the Committee—or even of the House—with a statement of that which was new in the Bill.

Question put, andagreed to.

Billreferredto a Select Committee.