§ Order for Second Reading read.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
, in moving that the Bill be now read a second time, said, that, as that was the first time the Bill had been brought before Parliament, he would very briefly state the reasons the Government had for introducing it, and the reasons which he thought would induce the House to give it a second reading. There were two points of view from which the matter might be discussed. First, they might regard it from the theoretical point of view; and, secondly, from the practical point of view. As to the theoretical aspect, there was not much subject for discussion; but he would point out that in respect of appeals the law of England was extremely anomalous and strange. With respect to matters of small importance in civil cases, for instance, in all money claims involving as much as £20, no fewer than four appeals were possible; and it seemed strange that in criminal cases, when personal liberty, character, and sometimes even life itself was at stake, practically no power of appeal at all should be allowed. Again, it was equally strange and anomalous that whenever a light punishment was inflicted for offences which were partly civil and partly criminal, an appeal was given, and in criminal cases such as misdemeanours, which were removed to Civil Courts, there was power to move for a new trial; but if the offence was felony, and the punishment proportionally heavy, the first decision was final. He must say that it appeared to him most anomalous that, in cases where the consequences were grave, there was no power of reversing judgments by giving a power of appeal; while, in cases where the consequences were small and light in degree, ample and extensive powers of appeal were permitted to be used. That principle could hardly be maintained; and he presumed, therefore, that his hon. and learned Friend (Sir Hardinge Giffard), who opposed the 1182 Bill, would not base his opposition on theoretical grounds. The law, which had been the slow growth of centuries, ought to be tested rather by its practical results than by abstract arguments; and, that being so, the supporters of the Bill ought, in like manner, to found their arguments wholly on practical considerations. Setting aside, then, all that might be urged as to the theoretical merits of the proposed change, he would simply address himself to the actual results of our present criminal system. The annual number of convictions on indictment in this country might be put, in round numbers, at 12,000. In 1881, the latest year for which the Returns had been issued, the exact number was 11,353; but the average of the last six years, as he had said, was about12,000. Besides these 12,000 convictions, there had been, during the last six years, an average of 3,400 acquittals; so that, of the total number of persons tried for criminal offences, 23 per cent were acquitted. He was willing to admit that, of the 3,400 persons acquitted, some were probably guilty; but, on the other hand, there could be no setoff in a matter of this kind. They could not, because they acquitted guilty people, take no note of innocent persons unjustly convicted; and the more pertinent consideration was, whether a certain proportion of innocent persons were not included in the 12,000 convictions. Looking at all the circumstances under which criminal trials were conducted, he should be surprised if, in a total of 12,000 cases, a really serious number of mistakes were not made; indeed, he could arrive at no other conclusion but that errors of judgment based upon false testimony, if not constant, were, at any rate, far too frequent. Everyone knew that wrong verdicts were often given in civil cases, and that first trials were constantly found to be incorrect. In such cases of a criminal or quasi-criminal character in which appeals were now permitted, he found that during the last six years 876 appeals had been heard; and, though a trained judgment had been brought to bear on all the cases, the result of the first trial had been reversed in 44 per cent of the number, while in 56 per cent it had been confirmed. If that happened in cases involving questions of fact, in which everyone concerned was anxious that justice should be 1183 done, he might fairly regard it as a very strong argument in favour of the Bill. What he suggested was the obvious probability that juries, however desirous of doing their duty justly and properly, sometimes, from circumstances, made grievous mistakes in their verdicts. It was, he knew, the habit of those who took part in trials, and even of Judges and counsel of great experience, to aver that they never knew cases of wrongful conviction where persons had been unjustly sentenced; but that was necessarily so, for if they did such sentences would not have been passed: and beyond that a Judge could only form his opinion of a case by facts elicited or apparent at the trial, and the appearance of guilt in such cases at once justified the assertion of the Judge, and caused the erroneous verdict of guilt to be found. His own experience of these matters was very indirect; but he had come to the conclusion that a greater number of innocent people suffered than was generally supposed. With every desire to do the fullest justice, the Judge was liable to be deceived, and therefore it was that power was given to interfere by the exercise of the Prerogative of Mercy with the carrying out of the sentence; but the protection thus given was injustice in the highest degree, for all that could be done was to pardon for an offence of which the man pardoned was not guilty. It had already been the duty of his right hon. and learned Friend the Secretary of State for the Home Department, during the three years he had been in Office, to set at liberty 12 different persons convicted of the gravest crimes, and that had been done, either because their innocence had been fully established, or because their guilt was so exceedingly doubtful that he dared not keep them in custody. In every one of these cases, facts long concealed had come almost miraculously to light; death bed confessions of the real criminals, or the statements of perjured witnesses had proved the error of the original convictions. And even when this occurred the Secretary of State was almost helpless, and had no means of making the necessary investigations. He had no machinery by which that could be done, no power to examine witnesses, or to compel persons to give evidence. All he could do was to listen to statements, without being able to 1184 test them, and so to surmise, but not to establish, the truth. Nor could the Judge who presided at the trial under review give the Secretary of State much real assistance, for his impressions and recollections of the case were necessarily derived from what took place at the trial, and might not lead to the right appreciation of the new circumstances which formed the ground of the appeal. The result was extreme injustice; and the "pardon" after, perhaps, years of suffering of an innocent man, for an offence he had never committed, whose former position could never be restored to him, was almost an insult. That was the only thing the Secretary of State could do, when, in his belief, an innocent man had been unjustly convicted. He could not even make the reparation of declaring him innocent of the offence, and thus restore him to the position of innocence which he occupied before; and such a pardon was rattier an acknowledgment of the failure of justice than the exercise of the Prerogative of Mercy. He hoped the House would agree that if they could alter the present state of things, so as to prevent innocent persons suffering, they would. If that work could be accomplished, it was a work they ought to do, for it was worthy of any man's utmost efforts; and he hoped that, so far at least, he would receive the goodwill of the House, in relation to the result, if it could be brought about. He would next ask the House to let him place before them the intentions and provisions of the Bill; and, at the outset, he knew that those who opposed the Bill would say that it was not the practice of other countries; but there were few countries in which a criminal review of some kind or other was not given, and he thought they had better deal with the law of this country and their own experience of it. Another argument made use of was, that the great weight of judicial authority was against any such changes; but he thought, taking it all in all, it altogether showed a considerable weight of authority in favour of it. The late Sir Frederick Pollock gave a qualified acquiescence in favour of it, and an enthusiastic support was accorded to it by Sir Fitzroy Kelly. But he was not going to ask the House to determine the question on the high authority he had quoted. Speaking of the Judicial Bench 1185 with the greatest respect, he could not help saying that the learned Judges had not always been the best and first of legal reformers. One always recollected that argument of Lord Ellenborough, when he opposed the abolition of capital punishment—that if they abolished it in the case of a man stealing 5s. in the shop, they would be for abolishing it for stealing 5s. in a dwelling-house; and then where would they be? It was a characteristic, not only of Judges, but of distinguished lawyers generally, to be always opposed to reforms in the practice they had seen much of; and it was quite consistent with this practice that the right hon. Gentleman the Member for the University of Dublin and the learned Member for Launceston should oppose this Bill. He would state at once that the Bill was not sufficient to meet the evil he had pointed out, and would not be sufficient to do all he would wish to see done. The hon. and learned Member for Edinburgh (Mr. Waddy) proposed to ask the House not to accept the Bill, because it was insufficient, and to accept no Bill but one which would give an appeal in every criminal case. But if he (the Attorney General) bad proposed to follow that course, he would have failed. Other Bills had failed upon that ground. If he had proposed a Bill that went to that extent, it must have met with a conclusive defeat. He had told the House that in the year there were 12,000 convictions; and those who had to bear the responsibility of introducing this Bill had to look at the subject in a practical light. He could not, of course, tell how many of those who were convicted would be likely to appeal; but, in all probability, those who would do so might number a fourth of the whole, and, if that were the case, there would be 3,000 persons who would be appealing to the Court of Criminal Appeal. Taking an average of three appeals a-day, it would, if the House were to accept the Amendment of his hon. and learned Friend, take 1,000 sittings of three Judges to hear a year's appeals. Again, taking 100 days as the average time during which the full Courts sat in London, it would take that 100 days, with every Judge on the Bench sitting in the Courts of Appeal, to dispose of the cases. This would amount to a total denial of justice to all other suitors. If an appeal, therefore, was granted in 1186 every case, the Bill would be shipwrecked at the outset. A limit consequently had to be defined, and having come to the conclusion that it was impossible to give an appeal in all criminal cases, some dividing line had to be found. It was difficult, under such circumstances, to define a better one than that laid down by Mr. Baron Alderson, in giving his evidence before the Committee in 1848, where, whilst he himself was objecting to the proposition of an appeal in all cases, he said—If, however, the Legislature think fit to make any change, I suggest the experiment should be confined to capital cases, which are cases of the greatest importance.If they were to find a line anywhere, certainly no line would be found so well as the line which divided punishments which could not be recalled from those which could, and as that was a step in the direction of future progress, the best line to draw was at cases of the gravest description. Taking, again, the year 1881, he had mentioned that the number of convictions was 11,353. Out of those convictions, it appeared that, including death sentences, which were 23 in number, those of penal servitude for life were 17, those above 15 years, 14, and those of 15 years and above 10, 54, all of which merely amounted to a little more than 100; and then came the large number of 1,440 sentences of 10 years and under. This measure was free from the objections which were raised to the Bills of 1844 and 1860, and, though he had admitted that it would not be sufficient to do all that he wished to see done, he placed it before the House as the first step in an important reform. He could not tell what the number of appeals would amount to; but he submitted it as a tentative measure, under which, by confining the appeal to capital cases in the first instance, they would have a stage, or halting-place, from which it would be easy to proceed progressively in the direction of enlarging the power of appeal which might be ultimately given if found necessary. He was even now perfectly prepared in theory to extend that power to the graver cases of penal servitude; but he thought it better to introduce an unambitious Bill in the first instance, and, in that view, he had confined the appeal, as of right, to capital cases. If, in the first instance, they commenced by deal- 1187 ing only with an appeal as a matter of right in such cases, they had stage after stage which might have to be hereafter extended; but as far as this measure went, unless he accepted the dangerous and impossible policy of his hon. and learned Friend (Mr. Waddy), he was bound to commence with the matter by degrees, and to deal with it tentatively. He thought that was a better line to adopt, and a safer one, in relation to the carrying of the Bill. So far as he had been able to gather the views held respecting the measure he desired to introduce, two objections only had been urged against it. The first was that the Bill would cast duties upon the Judicial Bench which it could only fulfil with great inconvenience, and, perhaps, not at all. But he did not believe that the House, or the Judges themselves, would allow that objection to be of any avail against the measure. Let them take the total number of capital convictions in 1881 at 23, and in 1882 at 22, and remembering that many of them were of a character which precluded any reasonable probability of an appeal, he thought there would remain not more than 12 cases to be dealt with every year. There were four Assizes in the course of the year—he was not taking the sittings of the Central Criminal Court into consideration—and, therefore, taking an average, three Judges would be called upon to sit for a short period, say, three days longer than at present, four times a-year. That was the whole addition of judicial labour which would be thrown upon the Bench, so far as questions of fact arose on appeal, and that addition, supposing this policy to be the right one, he was persuaded Judges would most readily undertake. The second objection was that the principle was a dangerous one—objectionable not only from the point of view of procedure, but in relation to capital punishment itself. It was said that the prolongation of a man's life, to allow of an appeal, would buoy him up with false hopes; and that they ought not to torture a man by allowing him to drag out many days after sentence of death, and afterwards inflicting that sentence upon him. But there need be no prolongation of a man's existence after he had been sentenced to death; for, in this Bill, he had taken as many safeguards as possible to secure that the hearing of the appeal and judg- 1188 ment should be speedy. There might be cases where it would be absolutely necessary that there should be a prolongation of a man's life in order that absent witnesses from a distance might give testimony; but, if that were the law and the practice, it would not hold out any false hopes that life would be spared, because the man would know that the prolongation was not on account of any doubt as to his guilt, but because it was necessary and was his legal right of which he could not be deprived. Nobody suggested, in the recent Lamson case, that the Secretary of State was guilty of inhumanity, because he reprieved the prisoner two or three times, for the purpose of enabling him to produce evidence in his favour after his conviction, and no inhumanity would be committed in enlarging the time in the very few cases where it might be required. This suggestion was by no means a new one. In former times, so far back as the Reigns of Edward I. and Edward II., when greater humanity certainly did not exist in the way of regarding these matters than at present, there was a period of 40 days given to the convicted man in order that he might challenge the judgment and verdict, and, therefore, he was only at the worst reverting to periods the antiquity of which would satisfy even his hon. and learned Friend the Member for Launceston. His hon. and learned Friend would find in a book, published in the Reign of Edward I., The Mirror of Justice, three grounds stated as to challenging a verdict, and 40 days were given always to every criminal, during which he might challenge that verdict. In the year 1752, however, during the Reign of George II., the Legislature passed a law directing that every condemned man should be executed within 48 hours, unless the man was tried on a Friday, in which case he was not to be executed till the Monday. Under that law, there was but little chance of a reprieve, and the only answer that could be given to the prayer for "a long day" was to try the poor wretch on a Friday. But that practice had now been departed from, and a considerable interval was always permitted to elapse between the conviction and execution of a prisoner. In Scotland, North of the Forth, condemned persons might be executed within a period 1189 of 28 days, and South of the Forth, 21 days; and he had never heard anyone say that, by extending the period, they were doing a cruelty to the condemned persons by raising hopes which could not be realized. Now, the House was aware that, at present, there was practically no substantial appeal on a matter of law. There was an appeal, if error of fact or law should appear on the record; but that error should appear on the record was scarcely conceivable in the present day. There was, it was true, one other mode of reviewing the sentence in point of law which amounted to an appeal. Under the present Act, the question of law could come before the Court for Criminal Cases Reserved at the will of the Judge who tried the case. But a person who challenged the judgment of the Judge had no power whatever to appeal from that decision, and he had to trust to the Judge thinking that the point was so doubtful that it ought to be raised; and there was this important circumstance also, that such appeals never could exist unless the man were found guilty. Beyond that, the very confidence which would induce a Judge to refuse to state a case for the opinion of the Court of Appeal was what had, perhaps, led him astray. A man might also be detained in custody, and then it might be found that he had committed no offence at all. He thought that was a state of things that ought to be amended, and he had the authority of Judges themselves for saying that it was an unsatisfactory state of things. In determining when an appeal should be allowable, he had taken a course which had been much criticized as being somewhat arrogant. He felt, however, that he would be acting rashly, and almost badly, if he gave an appeal in every case. He had, therefore, taken a middle course, and proposed, by the Bill, that the holder of the office of Attorney General should have the right of sanctioning an appeal on points of law, if he thought fit, on the facts brought before him. As the law stood, no person could obtain a writ of error without the permission of the Attorney General, for he had always had cast upon him the duty of saying whether an appeal should take place when there had been an error in the record. In this Bill there was an extension of that very principle. In reply to those who said that the power here proposed 1190 to be conferred on the Attorney General was an assumption of power over the Judges, he would point out that the Judges themselves, in the Code they drew up, made that very proposition, and clauses embodying it would be found in the Bill introduced by the late Government, and backed by his hon. and learned Friend the Member for Launceston (Sir Hardinge Gifford). There was another principle in the Bill. The Judges had proposed that there should be an appeal on points of law for the Crown, as well as for the accused. To his mind that was an inadmissible proposition. To tell a man who had been acquitted, owing to some miscarriage of justice on the part of the prosecution, that he would have to go through all the excitement, degradation, and agitation of a second trial, was a proposition to which he could never assent. The proposition he had to make was, that if the Judge had doubts whether any offence had been committed in law, he might, under the Bill, stay the hand of the jury in finding the prisoner guilty, in order to have the question determined before the verdict was entered. That would not do, however, in all cases, as the man might be content to take the verdict of the jury. Therefore, he had introduced a proposition that the Judge might, if he thought tit, with the consent of the prisoner, consent to a postponement of the trial until such question had been determined. He believed that that would be a satisfactory extension of the law. He would not detain the House any longer. In conclusion, he would say that he only dealt with the principle of the Bill, and there were, no doubt, many matters of detail which were worthy of criticism. He had done his best in framing the Bill, and he was certain that the House would endeavour to consider the question in relation to the ends sought to be achieved. He felt that if they could do anything to take off from their fellow-men the load and burden—the heaviest which could in this human life be borne—the greatest which, perhaps, the mind could contemplate—the doom of guilt cast on an innocent man, they would be doing a work not suggested by sentiment, but they would be listening to the voice of Justice when she spoke in her sternest and her truest tones. He begged 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.)
§ SIR HARDINGE GIFFARD,
in rising to move that the Bill be read a second time that day six months, said, that seeing that the Bill was one of the most important that had ever been introduced into the House, he must confess he looked with dismay at witnessing such a deserted state of the House at the time it was being discussed. It was a matter on which a great deal of our happiness and the stability of our institutions depended, and the mode in which the Criminal Law had hitherto been administered, and the universal respect with which it had been regarded, were matters of such transcendent importance, that he looked upon his own side of the House, more than to the other, with some degree of sorrow that the importance of the question should not have been sufficiently appreciated. The hon. and learned Gentleman the Attorney General, in the very brief speech he made to the House, had entirely omitted what seemed to him (Sir Hardinge Giffard) to be the cardinal principle that he ought to have established—namely, the existence of the practical evil against which the Bill was directed. Was there anyone inside the Profession, or outside of it, who really believed that a great many, or even a few, innocent people were convicted? All human tribunals were fallible, and that it was possible that people might be wrongfully convicted was true; but that would be equally possible after this Bill was passed, and at present he believed that all practical injustice was removed by the jurisdiction of the Secretary of State for the Home Department. But the Bill then before them did not propose to interfere with that jurisdiction, neither was it proposed that it should be extended. The jurisdiction which he had hitherto exercised, with the greatest benefit to the community, would still have to be made use of; but it would only be exercised under much more difficult circumstances, and he believed that one effect of the Bill would be to render those duties of the Secretary of State far more anxious than they were at present. What he ventured to submit was that this Bill did not go one step towards removing the possibility of an improper conviction. He hoped that 1192 the lay Members of the House would not be led astray by the technicalities contained in the Bill. The Bill started with enacting what was at present the law, and then proceeded to state the different cases in which an appeal would be granted. But in all these cases the present law was sufficient by proceeding under a writ of error.
§ SIR HARDINGE GIFFARD
said, he was aware of that; but his point was that no person was imperilled as the law now stood in these cases. He wished to say one word as to the Attorney General's fiat. The Attorney General was an officer responsible to Parliament, and he did not believe that in any case, during some centuries at least, the fiat had been refused. There were other provisions, which really seemed to be calculated to make some reflection on the Judges, such as that there had been no evidence properly submitted in support of the charge. He would pass over those, because such cases were not likely to arise. Then he came to the real core of the Bill—namely, the power which it gave for an application for a new trial on the ground that the verdict was against the evidence. He was glad that that question could be discussed without Party feeling. As the Attorney General had said, the most earnest advocate of this proposal was the late Lord Chief Baron Kelly. But the person who most conclusively demolished the cry for a criminal appeal was Sir George Cornewall Lewis, when exercising the office of Secretary of State for the Home Department. If anyone would read the debate on the 1st of February, 1860, on this proposal, which was made at that time in Mr. Mac-Mahon's Bill, he would, he believed, see the most complete answer to the question then submitted by the Attorney General. If they were to have a Court of Appeal, they must consider what it was to be, because the principle of the Bill must, in a great measure, be judged of by its details, and if it was not a practically workable Bill it was idle to discuss the theory of the matter. He had to submit to the House that the Bill was not a workable one. It was impossible adequately to consider what would be the result of a measure of that character without consider- 1193 ing what was the ordinary course of a criminal trial, how totally unlike it was to any civil proceeding, and how entirely false was the analogy between the two things. In the first place, the present proposal was unilateral. In civil cases the plaintiff or defendant might equally apply for a new trial; but here they did not fallow a new trial to be moved for on the part of the Crown. In former times, when a sanguinary and cruel system of jurisprudence prevailed, everybody was anxious, if a prisoner got off, that he should not be put on his trial again, and, under such circumstances, one could understand the propriety of allowing a person who was once acquitted to remain acquitted for ever. But the system under which they administered criminal justice was not the same now, and it should be remembered that there were two parties to be considered—not the prisoner only, but the public also. He wished to know, if a person who had been found guilty was to have an appeal, why, if a man had been wrongly acquitted—for that was the hypothesis—he was not to be tried again? He could well understand the feeling which had been engendered by our system of jurisprudence; but when the extravagant punishments and vindictive cruelty once inflicted by way of a sentence of a Court of Law no longer existed, why, as a matter of common sense, was a guilty person who had been wrongly acquitted not to be brought to justice? When a noted burglar, for example, was found to have been wrongly acquitted, either by perjured testimony or by the perverseness of the jury, why was he not to be put on his trial again? Had society nothing to say to the matter? If the function of a Court of Justice was to do right, why, when the tribunal was found to have gone wrong, was it not to be set right? That was an objection to the whole theory on which that Bill was based. At present, the course of a criminal trial was usually this:—First, they brought the accused before a magistrate. That was really a preliminary trial; the Grand Jury afterwards found a bill; and, finally, there came the trial. There was nothing there in the nature of a surprise. Under Mr. Russell Gurney's Act, the prisoner's witnesses were in the same position as those of the Crown, and paid for by the State. Take a case where a crime had 1194 been committed at sea. The hon. and learned Attorney General knew the extreme difficulty of keeping the witnesses either for the Crown or the prisoner from their ordinary avocation as sailors. What were they going to do in instances of that kind, of which there were many in every seaport? Were the witnesses to be kept on shore, on the possibility of there being a new trial? There were many convictions obtained, and properly obtained, by admissions fron the prisoner's own witnesses. If a new trial was granted, would those witnesses be called on the second trial? And was it to be only a second trial? The Bill said nothing of that. Let it not be said that it was to be a repetition of the first trial. Did the hon. and learned Attorney General recollect a civil case in which the second trial was a repetition of the first? The weak points of the case were provided for, and new evidence was sought, and there was no limit to the power of granting a new trial in civil cases. In any case, what guarantee was there that the second trial would be better than the first? His experience in civil cases by no means induced him to say that second trials were better than the first, and if that was so they might have any number of new trials. Cases of ejectment had been tried over and over again, because the parties had that right, the result sometimes being that almost the whole value of the estate went into the pockets of the lawyers. Then the expense of those proceedings ought not to be altogether overlooked. Mr. Greaves had suggested that there should be a Public Defender as well as a Public Prosecutor. When a verdict of guilty had been returned in a capital case, the gaoler was to be directed to give the prisoner all facilities for the purpose of an appeal. What did that mean? What was to be done in the case of a person convicted without defence? Of course, it would be easy to say what should be done in the case of a wealthy criminal who had attorney and counsel; but was the gaoler to provide the man convicted without defence with attorney and counsel? Supposing a man was convicted in Northumberland or in Cornwall, what was the gaoler to do? Was he to provide the prisoner with a solicitor? It was to be presumed that there would be an appeal in every case of a death sentence, What was 1195 to be the nature of the appeal which the prisoner was to have? Was the criminal to be brought up from Northumberland or Cornwall to appear in Court? ["No!"] The hon. and learned Attorney General said, "No!" But what was the Court to do? The notes of the Judge who had tried the ease would come up from some distant place. Where they were dealing with questions of law, the presence of the accused would be comparatively immaterial; but where they were dealing with questions of fact, and might require explanation of particular facts proved in the case, the presence of the accused was absolutely essential. It was idle to suppose that the Judges were to surmise the explanations which the man himself might give. The hon. and learned Attorney General had referred not obscurely to a case in which the Secretary of State had been called upon to consider the death-bed repentance of a man who had admitted that he had inflicted on himself the greatest injuries short of death—injuries which he had accused innocent men of inflicting upon him. Hardly anybody could conceive of such a thing as that the man who had made that accusation should have inflicted on himself injuries from the effects of which his life was only preserved almost by a miracle, and yet that was the sort of example which was quoted to the House to induce them to assent to the new trial proposed to be given by that Bill. The hon. and learned Attorney General had stated that he did not propose to abolish the right of appeal to the Secretary of State; but this Bill would make his position with regard to an appeal more difficult. Suppose a case in which popular prejudice had penetrated into the jury-box, and the jury, actuated by that prejudice, convicted, and upon that ground a new trial was granted. Suppose a second time the prejudice operated, would it not be infinitely more difficult, for the Secretary of State to deal with the matter after two juries had pronounced against the prisoner? Again, supposing an application were made for a new trial to a Court such as the Bill proposed, of not less than three and not more than seven Judges—the minimum number, however, he thought open to great objection—would it not be possible that the majority of these Judges might be overborne by one strong mind 1196 among them, just as in the case of a jury? The hon. and learned Gentleman was surely not unaquainted with such instances. Upon questions of fact, he (Sir Hardinge Giffard) himself would rather have the judgment of a jury than of a bench of Judges. Supposing, on a conviction for murder, an application for a new trial, on the ground that the verdict was against the weight of evidence, was refused, but that there was one dissentient voice on the Bench, would the Secretary of State venture then to execute the man? He (Sir Hardinge Giffard) for one thought not. The notion that a man could be executed when one of the Judges had thought the verdict was wrong was impossible to entertain for a moment. Besides, under the Bill it would be found quite possible for a man to be found guilty in July and not hung till the following January or February; and if so, this was exactly what Sir Cornewall Lewis had pointed out—an indirect expedient for getting rid of capital punishment. Of course, hon. Members who took the view that capital punishment should be abolished approved of this expedient; but that was not the view of the country generally. The country generally was of opinion that it was necessary to safeguard life by inflicting death, if necessary. If the Government meant by au indirect expedient to get rid of capital punishment—that was to say, to render its infliction impossible—they were not dealing fairly with the House or the country. The hon. and learned Attorney General had altogether omitted to notice one of the most important considerations in criminal justice—namely, the necessity that the punishment should swiftly follow the crime. If a long delay were allowed to elapse after a conviction for murder, the public mind would revolt against an execution. The hon. and learned Gentleman was in error in saying that there was formerly a right of appeal by persons convicted of murder. There was such a thing as an appeal of murder. If a person was interested in the life of a man whose life was lost, he had a right of appeal of murder.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
said, the hon. and learned Gentleman had misunderstood him. He had not said a man convicted of murder had formerly a right to a new trial.
§ SIR HARDINGE GIFFARD
said, he was glad to find he had misunderstood the hon. and learned Gentleman. He failed to see that the mere fact of the Court of Criminal Appeal not arriving at the same conclusion as the jury was sufficient ground for sending the case for a new trial. That was not the principle upon which a new trial was granted in a civil case. Then, no provision was made by the Bill for the actual machinery for appeal; and upon that point he would again refer to the opinion of Sir Come wall Lewis—that if the right of appeal were simply allowed, without showing how a man could avail himself of it, it was illusory. It was very desirable that the hon. and learned Attorney General should have given the House some instances of injustice done under the present system; but he had given them only one, which would not, under any possible circumstances, have come before a Court of Criminal Appeal, even if it had existed. The result was they had no proved necessity for what was a most startling and extraordinary innovation on the principle upon which our existing Criminal Law was administered. There was one most serious objection which went to the root of the matter, and would affect the mode in which the Criminal Law would in future be administered. A person present at a criminal trial, under the existing law, could not fail to notice the watchful attention of everyone in Court. Judges, jury, witnesses, and spectators were alike impressed with the transcendant importance of the subject; for when once the jury had pronounced a verdict of guilty, the man's life was forfeited. But under this Bill, if there was a right of appeal, if they assimilated the criminal to the civil procedure, the responsibility of the Judge and the jury would be diminished, and the latter would feel that there was a decision to be come to after they had given their own. No doubt, it must strike everyone with horror that an innocent person should be put to death; but the feeling of horror could be scarcely less that an innocent man should be sentenced for the term of his natural life, or for any less period, to the shocking slavery of penal servitude to which the convicts of the country were properly remitted. If they averred that the administration of criminal justice was so imperfect that it was necessary to estab- 1198 lish a Criminal Court of Appeal, and and that the right of appeal was to be allowed to a person whose life was at stake, how could that right be refused, on any ground of sense or reason, to one who was liable to be sent into penal servitude? The reasoning which led to the one conclusion must inevitably lead to the other. Death, no doubt, was popularly considered the severer penalty, although there were some cases in which it was the lighter. But if there were injustice, there was as much right to the appeal in the one case as in the other. The hon. and learned Gentleman had said that the Judges could not get through their work if an appeal was granted in all cases; but, if there was injustice, that was no answer, and if there were no injustice, then they were only tampering with the Criminal Law in a way that must inevitably lead to grave consequences. This Bill, if passed, must inevitably lead to the abolition of capital punishment. That was one reason why he hoped the House would not accept the measure, for it would be an indirect mode of preventing the execution of criminals. All authorities—all law reformers, even of the most merciful tendency—were against a change of that character. The hon. and learned Attorney General had quoted the authority of Lord Chief Baron Pollock. On what authority he had done so he (Sir Hardinge Giffard) did not know, for Sir Cornewall Lewis distinctly quoted Lord Chief Baron Pollock as being against a Court of Criminal Appeal. The weight of authority was altogether against the Bill, and no really existing grievance had been shown to justify it. The hon. and learned Attorney General had, indeed, hardly argued the question upon that ground, or suggested that there was any practical grievance to remedy.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
observed, that he had mentioned 12 cases in which the course of justice had been interfered with by the Secretary of State, either on the ground of the innocence of the condemned persons being established or their guilt rendered doubtful.
§ SIR HARDINGE GIFFARD
said, that it was impossible for him to discuss those cases, as he had no information with respect to them. If the hon. and learned Attorney General had mentioned the names to the House, some hon. Mem- 1199 bers might, perhaps, have thought that the verdicts and sentences were right, and the intervention of the Secretary of State wrong. But the fact of those cases existing seemed to him the strongest possible argument in favour of the existing system, for it proved that the Secretary of State at present exercised the functions of a Court of Appeal, and, he believed, with great benefit to the public at large. And he would commend to the hon. and learned Attorney General's attention that it was not a legal tribunal of three to seven Judges that was required. At present the most illiterate scrawls were brought to the Secretary of State's notice, and, as he had reason to know, were considered with the utmost care and attention. In the case of persons considered improperly convicted their release was ordered, but that was no reason for altering the law. Assuming those 12 cases in the hon. and learned Attorney General's favour, it was an odd thing to say, and no reason for altering the law, that 12 persons were ordered by the Secretary of State to be released in the course of three years. No true grievance existed, and the tendency of all authority was against this new-fangled notion of a Court of Criminal Appeal, on the ground that it would diminish the sense of responsibility in juries. With respect to the practical difficulties of the scheme they had already an overworked Judiciary. His hon. and learned Friend had entirely understated the average length of time that would be required by these cases. They would be questions of verdicts against evidence, and would involve inquiries into the evidence of every witness. If there were no counsel, the Judges would have to act the part both of counsel and accused, and go through all the evidence, to see whether this or that particular point was established, or ought to have been submitted to the jury with the amount of force which the Judge at the trial attached to it, and no ordinary murder case on which there was really any question to be determined could possibly be got through in the usual judicial day. Every part of the evidence must be read, and the present Judiciary would be wholly insufficient for the work thrown upon them. Even at present the Judicial Bench was undermanned, and the arrears of work and delays were 1200 sufficiently alarming. Then he regarded with very considerable objection the sort of tribunal proposed. It was to consist of not less than three, nor more than seven, Judges. Such a tribunal ought to be fixed, for nothing was more undesirable than to have a different tone at one time and another in the administration of Criminal Law. It was no secret that some Judges habitually took one view, and others another, and it was in accordance with the nature of the human mind that it should be so. But nothing could be more mischievous than to have a tribunal which changed from time to time according to the changes in the Judicial Body, Nor could he understand on what ground the selection of the Judges, as it were, was to rest with the Lord Chief Justice. That did not seem to be a desirable plan; but, being a matter of detail, it was more properly a question for discussion in Committee. That it should be a permanent tribunal seemed to be absolutely necessary, if there was to be anything like confidence in the administration of such an extremely delicate jurisdiction as that of saying whether a jury had gone right or wrong in determining whether a man had been guilty of murder or not. The rest of the Bill seemed to be of comparatively small importance. Questions of law were already sufficiently provided for by a Court of Criminal Appeal. It was true, as the hon. and learned Attorney General had said, that they could be appealed against only with the permission of the Judge; but surely the hon. and learned Gentleman's experience must have shown him that learned Judges never refused to reserve any points of law which were really arguable. He had never known any such instance; on the contrary, he believed the anxiety of a Judge was always to relieve himself of the responsibility of deciding any really difficult question of law. Everyone must recognize the fact that a Judge would be only too glad, in cases of murder, to have the opportunity of obtaining the judgment of other Judges upon a legal question, before he had cast upon him the terrible necessity of condemning a man to death. The main necessity for the Bill seemed to rest on a question of words. They were now obliged to pardon a man, and to say that he had not committed a crime. But it was only a form, just as the verdict 1201 of not guilty was, which was often intended by the jury to mean, not that a man was absolutely innocent, but that he was not proved to be guilty. Formerly the feeling of Crown prosecutors was that they were not so much advocates as ministers of justice. The assimilation of the proceedings in criminal trials to the proceedings in civil trials had, however, an injurious effect, inasmuch as the counsel for the prosecution, instead of looking upon himself as a minister of justice, now often acted as an advocate, and exerted all his power to obtain a conviction. In the same way, if the proposed tribunal was to be established, and the responsibility of juries to be diminished, there would be an end to that solemn finality which was the greatest security to the prisoner, and which in 99 cases out of 100 had prevented injustice being done to him. On all these grounds, he submitted that the Bill was one which ought not to receive the assent of the House. It was not a Bill to be amended in Committee, because the principle, which was not founded upon any necessity, was against experience and authority, and was one which the House would do well not to accept on the present occasion. Believing, therefore, that the principle of the Bill was a wrong one, he begged to 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."—(Sir Hardinge Giffard.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. WADDY,
who had given Notice of an Amendment, declaring it inexpedient that the Bill should be confined simply to capital cases, said, that the answer which the hon. and learned Attorney General had given to that Amendment was, singularly enough, precisely the answer given to the hon. and learned Gentleman's own proposal by the hon. and learned Member for Launceston (Sir Hardinge Giffard). The great objection taken to his (Mr. Waddy's) Amendment, as he understood, was that it would make the Bill unworkable, and would overweight it so completely as to bring it down entirely. The same objection was made from the other side of the House, that the Bill, in its present 1202 form, was unworkable. He did not believe that there was very much weight to be attached to the argument from one side of the House or the other. If they now decided the question of principle, means would soon be discovered for making it workable. He quite agreed with the objection to leaving it open to the Court to be constituted by any number of Judges between three and seven, as there would be the risk in an even number of an equal division of the Bench. He thought it should always consist of an uneven number; but that, however, being a matter of detail, was a question for Committee. The great objection made to the Bill was that they were about to abolish capital punishment by a side-wind. He was not prepared to say that, if that were so, it would be a matter that would cause him any poignant grief; but it certainly was not upon that ground, in any degree whatever, that he would support the principle of the Bill. They were told that there was no grievance; but, if there was no grievance, it must be because the Court, as at present constituted, must be taken to be practically infallible. Directly it was admitted that the tribunal before which the capital cases came was not infallible, there was a grievance, and they must have a remedy in some way. Faults were found with the new system in order to show that it was no better than the old. He could not help being amused at this. Every fault that could be found with the new Court also attached at the present moment to the review of those questions by the Secretary of State for the Home Department. One illustration would suffice. It was asked, what were they to do with a prisoner from Northumberland? Was the prisoner to go up himself, or how was he to be represented? But how was he represented now? How did he represent himself before the Secretary of State? The Judge's notes were referred to. He was quite prepared to say that it was by no means satisfactory to trust always to the report of the Judge. Those of them who were lawyers knew that within recent years they had had a Judge who had an enormous power over juries, but whose opinion and notes in a certain class of cases it would be most fatal to rely upon. The Bill appeared to him to involve two questions—first, whe- 1203 ther there should or should not be a power of appeal; and, secondly, the question as to the system by means of which it was to work. The great objection which had been taken to the Bill was that it proposed to alter the existing system, and it had been argued that that system was everything. He did not at all agree that the system was everything. The great point they had to settle was whether there was to be or not, in some few cases now—perhaps in more cases afterwards—the right and the power of appeal in criminal cases. He wanted to have that matter argued and settled. They were told that the Bill was only tentative. It was because the Bill was tentative, and they were going to lay down a principle, which, once it was tried, might be extended and regulated and modified with the greatest advantage to the country, that he would heartily support the second reading. He did not propose, of course, to press his Amendment at the present stage. He understood, by the 4th section, that by leave of the Court, a new trial, as regarded questions of fact, was to be granted in capital cases alone, He did not believe that that was at all satisfactory or sufficient, for it was not always easy to obtain leave to reserve a case from magistrates sitting in Quarter Sessions. It might be sufficient as regarded capital cases; but they must remember that it was more important that there should be a right of appeal from Quarter Sessions than from the Assizes; and he could not help thinking that they ought to propose, as soon as possible, that the right of appeal should be incident to every trial of an indictable offence. He believed, when they had once got this in thorough operation, they would laugh to scorn the objections made to it, just as they did the objections to the previous modification of the Criminal Law, and the alleviations of its harshness. He could understand that that would throw a great amount of work upon the Judges; but that could be easily provided for; there could be rules nisi moved for, and that would relieve the Court of Appeal to a great extent. He believed, when they had it in operation, they would extend it until every criminal had a right which he ought to have; and that the man, when the result of a verdict was not to fine him a certain amount of money, but to send him for a longer or 1204 shorter period of imprisonment, should have the right of appeal. If he could appeal in a matter of £20 or £25, why should that right be denied him when his character and life were at stake. It was for these reasons he supported the second reading of the Bill. Let them not proceed upon the argument, as of old, against any alteration in the Criminal Law, that there should be no change at all.
§ MR. GRANTHAM
said, that the hon. and learned Member who had just spoken (Mr. Waddy) had fallen into the same error as the hon. and learned Attorney General in assuming an analogy between civil and criminal procedure, and that there should be a right of appeal in criminal cases, because there was a right of appeal in civil cases. They should not proceed upon the assumption that sufficient care was not taken in the trial of prisoners. The two systems of procedure in civil and criminal cases were very different, and a great distinction should be made between them. In civil procedure, each party stated his case in such a manner as to keep his opponent as much as possible in the dark; but, in criminal cases, the evidence that was to be brought forward, and the nature of the case which the accused would have to meet, were known beforehand, and no new evidence was allowed to be adduced, unless due notice were given and a copy of it furnished. In a criminal case, no step could be taken at all unless application was made to a magistrate for a warrant, which, in many instances, the magistrate refused to grant; but in every case the evidence was given upon which it was expected at a later period a conviction might be obtained. There was little necessity for the Court granting an appeal on a question of fact, because the principle of our law was, that if there was any doubt in the mind of the Judge, it was his duty to direct the jury in favour of the prisoner; whereas, in civil cases, an appeal was frequently granted on the ground that the parties had been taken by surprise, and did not know the nature of the evidence to be brought forward. In civil cases, also, where there was much more probability of a wrong verdict than in criminal cases, an appeal was not given unless the Court granted a rule nisi in the first instance. But, according to this Bill, it 1205 only required a person who had been convicted—i.e., where judgment of death had been passed—to say that he wished to have an appeal, and then there was to be one. This appeal followed on the mere statement of the prisoner, written out by himself, coming before the Court, although the evidence was as clear as noon day. He agreed with his hon. and learned Friend (Sir Hardinge Giffard) that this was an attempt to get rid, by a side-wind, of capital punishment. It was also an attempt, by a side-wind, to enable prisoners to give evidence which they were not now allowed to do; and why these matters should have to be discussed twice over—namely, in this Bill, and then in the Criminal Procedure Bill, he was at a loss to understand. He thought that reasons stronger than those offered by the hon. and learned Attorney General were necessary to justify a proposal which would completely alter our whole system of criminal procedure. The arguments in favour of the Bill came simply to this, that they were not satisfied that the Judges tried criminal cases fairly; and that, therefore, prisoners should have an opportunity of being re-tried by three Judges, or it might be by seven. That would be the practical result of the Bill. He believed that their criminal jurisdiction had worked well and fairly for many years, and they should not throw any doubt upon it by an alteration of the law based upon sentimental grievance alone. Why should it be altered because, as the hon. and learned Attorney General had stated, the Secretary of State for the Home Department during the last three years had either reversed or altered the sentences in 12 cases? Another argument of the hon. and learned Attorney General was taken from deathbed confessions. But, in every case to which the hon. and learned Gentleman alluded, it was not until after the lapse of several years that new evidence of that character was forthcoming; while, under the Bill, if a new trial was to be granted, notice that it would be applied for must be given within seven days. The Appeal Court, moreover, to be established by the Bill would simply re-try, with the same evidence, cases only tried three weeks before, and when there had not been time for fresh facts to come out, or public or private passions to be assuaged. The only difference would be in the 1206 tribunal. Of course, too, there would be appeals in almost every case, for a person under sentence of death would, like the proverbial drowning man, catch at a straw, and go to the Appeal Court, as he would thereby at least get another month's extension of life. The Government had shown no justification for the change they proposed, though it would involve great expense; and he, therefore, hoped the House would not give the Bill a second reading.
§ MR. HOPWOOD,
in supporting the Motion for the second reading, said, he felt there was something in the question which must appeal to a much wider range than that which was represented by the legal fraternity in the House. What his hon. and learned Friends left out of account was, that they had to reckon with the feeling out-of-doors. They ought to be aware that there was an increasing uneasiness and uncertainty in the public mind as to the justice of the conclusions arrived at in many of our criminal trials. The question had been dealt with by those who had preceded him as one which it was inconvenient to deal with, and, therefore, not to be granted, or as one which, if granted, would be ineffectual. But his answer to these arguments was that we ought to try the principle of an appeal, because the public necessity for it was great. If that were done, he had no doubt it would give satisfaction. Let them get into Committee and discuss the principles of the Bill. He strongly advocated the advantages which would arise from a Court of Appeal. An appeal was a natural course to take. It was already in a sense allowed in the resort to the Secretary of State and to the Crown; and he considered that it would be much better to have a Court of Appeal. He believed that every Secretary of State who had served the Office would admit that no other duty was more painful than the decision in criminal cases. No power could so well review the erroneous decision of one Court as another Court. The appeal to the Secretary of State, it was true, had the semblance of an appeal; but it was not perfect, as one obstacle in the Secretary of State's way was the decision and firm will of the Judge. With regard to capital cases, he contended it was necessary there should be an appeal in each one; and if any inconvenience 1207 should arise from the consumption of public time in dealing with the number of appeals, the public would only feel grateful for the interposition of an additional safeguard as to the justice of the sentence of death. A change had come over Courts of Justice, and the safeguard which once surrounded the prisoner was gone. In the majority of cases they could not now rely, as they formerly were able, upon a doubt being cherished in the prisoner's favour. They had had changes of Judges, who had to try criminal cases when their experience had been solely in Civil or Chancery Courts, and the tendency of both Judges and juries now-a-days was to compel the prisoner to prove his innocence rather than the accuser to prove his guilt. Instances had been asked for in support of the Bill; and he was able to mention several which unquestionably showed the necessity of the measure. To say nothing of the less striking cases in which the Secretary of State had intervened, he might cite the Staunton, or Penge case, with respect to which the public mind was still very uneasy. In that case one of the men had died in gaol, the other still languished there, while the wife of the dead man was also in gaol, although the young woman, Alice Rhodes, who was condemned with them, was liberated by the Secretary of State at the time. He maintained that the Staunton case was one which ought to have been tried again. There was also the case of Dr. Smethurst, in which fresh evidence clearly proved the desirability of the change now proposed. It was to be remembered that a person wrongly convicted had no direct means whatever of obtaining redress, though, in certain circumstances, his innocence might be shown by a more or less indirect process. Thus, when Mr. Hatch, a clergyman, was convicted of a criminal assault, he had no choice but to indict his accuser, a young child, for perjury. This was done with difficulty and at great cost, and it was proved that the charge was unsupported and untrue. He mentioned other cases. Now that instances had been given in proof of the necessity of the Bill, it was rather too late in the day for its opponents to deny that there was a call for such a Court, and such a means of review as they were now seeking, to make the public conscience easy, and to bring 1208 peace to the public mind. The present state of things, which threw an unfair responsibility on the Secretary of State, was as unsatisfactory as possible; but the Bill would make everyone feel that justice was administered, not only with mercy, but with certainty.
§ Notice taken, that 40 Members were not present; House counted, and 40 Members being found present,
§ MR. O'DONNELL
said, that, however generally the desirability of a Court of Appeal in criminal cases might be recognized in this country, in the case of Ireland there was a still greater necessity for such a tribunal; and, although there were shortcomings and defects in this Bill, still he had no hesitation in saying that it marked a most important step in advance; and if it were passed, even in its present shape, it would do more towards introducing justice and equity into the trial of criminal cases in Ireland than any Bill, with the single exception of Lord O'Hagan's Act, which had ever been passed for Ireland since its connection with the British Crown. The provisions empowering a Court of Criminal Appeal to quash verdicts and grant an order for new trials, were the most important in the Bill, and would have the effect of removing evils in Ireland, which, if not chronic, were at least recurrent. He found that a new trial might be ordered where there was some informality and irregularity in the trial, or some misconduct on the part of the jury, or from any cause whatever. In his opinion, on more than one occasion deplorable excitement and deplorable distrust of the law would have been prevented if this provision for the establishment of a Court of Criminal Appeal had existed in Ireland for the past 20 years. He did not wish to refer to recent cases; but he would refer the hon. and learned Attorney General to that very serious and momentous case—the Manchester rescue case, now a good many years old. In that case, the jury found five men guilty of murder; and it was afterwards found that one of the men, at least, was a quiet, loyal private of Marines, who was miles away at the time; but, in their headlong haste and the confusion arising from public excitement, the Manchester jury convicted not only the four others, but the absent Marine also. Then he thought it would 1209 be admitted that the murder for which the three men were hanged was murder in the most technical sense of the word; and in his opinion, if there had been a power of appeal in that case, the three men might never have been executed, and the cry, "God save Ireland!" would never have gone up from the Salford scaffold, the bitterest watchward that now resounded amongst Irishmen on both sides of the Atlantic. Nor would the cry, "Remember Orr!" the particulars of whose case were, no doubt, well known to the hon. and learned Attorney General, have sot in insurrection the entire North of Ireland at the end of the last century, if there had been a power of appeal from a verdict given by a jury, several members of which admitted that they were in a state of intoxication when it was returned. If he did not misread the provisions of the Bill, the whole question of jury-packing could be gone into as justifying an appeal for a new trial; and, if that were the case, the infamous system of jury-packing in Ireland would come to an end, for the very knowledge that a new trial might be moved for on that ground, would deter any Crown official from attempting to despatch men by a rope twisted by the hands of a packed jury. It was not drunkenness alone, and the expressions of partizan feeling, that might be made the ground of an application for a new trial; but he took it for granted that anything that could be fairly alleged against a verdict might be brought forward. In a case lately tried in Ireland, the whole evidence rested against a prisoner on the fact that the dying man said he was the person who murdered him. Now, a priest proved that the man was so insensible that he was unable to go through the simple preliminaries required by the Catholic Church before the last rite could be given, and a jury, composed exclusively of Protestants, were utterly unable to appreciate that piece of Catholic evidence, and the prisoner was found guilty. Now, he thought that under this Bill power would be given to move for a new trial, on the ground that from the constitution of the jury, they were wholly incapable of appreciating an important piece of evidence given on the part of the prisoner, and a new trial might be given; and if it was, they would have a better and a fairer trial on the future 1210 occasion; and even if it was not given, the probability of a fairness in subsequent trials of other prisoners would be greater. As far as the principle of the Bill was concerned it was admirable and excellent, and he believed it would be a great calamity if it were not allowed to pass into law. At the same time, he thought it his duty to say that if the Court of Appeal for Ireland was to be the same as the present Court of Appeal, as he was told it was, he should protest against that provision of the Bill. The principle of the Bill was an admirable one; but to have that principle carried into useful execution, the Appeal Court should have the public confidence; and he should say, as quietly and as calmly as possible, that the Appeal Court of Ireland had not the confidence of the public, and never would have until Judges were appointed, not because of their political service, but because of their professional ability. However, so much given so much gained. He was heartily glad that the principle of appeal had been introduced into the Criminal Law of the country; and in Ireland, notwithstanding that the Court of Appeal was to remain the game, he felt that the power of moving for a new trial hanging over the head of the jury-packer would be so direct and so powerful, that jury-packing in the future would be practised on a smaller scale, and when it was attempted, the public condemnation of it would be stronger and more effective than in the present day.
§ MR. CHARLES RUSSELL,
in supporting the Bill, said, he thought his hon. and learned Friend the Attorney General was to be congratulated on the attempt he had made to remove a very glaring anomaly and blot which, no doubt, existed in our law with regard to criminal procedure. Very little argument was necessary to show—indeed, he believed it had been sufficiently shown—that a practical grievance did exist; and the effect of the Bill would be that, while it left untouched the exercise by the Crown of the Prerogative of mercy properly so-called, it would apply to a number of cases which had been held to come under that Prerogative, but which, in truth, did not do so. They were dealing with a tribunal whose fallibility was shown every day in the Courts of Justice in the trial of other questions. He had seen it stated lately, 1211 on professional, if not judicial, authority, that 25 per cent of the applications for new trials in civil cases resulted in new trials being granted—or, one in every four cases. If civil tribunals foil into error in that very large percentage of cases, why was it not to be supposed that there was not a certain percentage of mistaken verdicts given in criminal cases also? The hon. and learned Gentleman the late Solicitor General (Sir Hardinge Giffard) said that in former times the prosecuting counsel was merely the Crown prosecutor; but that now, under the new state of things, the prosecution was often a struggle on the part of counsel to obtain a conviction—in fact, a rivalry between two counsel as in civil cases. If that was so, it made appeal more necessary; and if there were no principle of greater importance to be sacrificed, they ought to follow the analogy of the law in civil matters in that respect so far as to give the accused the benefit of an appeal. It was urged, if they were to apply that analogy to criminal cases, why not make it complete, and let the Crown have the power of moving for a new trial as well as the prisoner? The practical answer to that question was, that society would not have it; that society would feel that by such a course as that there would be imparted to the criminal judicature of the country a certain air of vindictiveness which it ought not to have, and the public would not have the confidence in it which prevailed at present. As to the argument that the existing practice of proceeding by writ of error was sufficient, he maintained that there was no more technical, no more cumbrous, or clumsy proceeding known to our law than that of error in the record or allegation of error in fact. This Bill, on the other hand, proposed a plain, direct, and common-sense mode of proceeding. While the Bill left untouched the exercise by the Crown of the Royal Prerogative of mercy, properly so-called, it did apply to a number of cases which had been dealt with as coming under the Royal Prerogative, and which ought never to have come under the Royal Prerogative at all. It was said that the Secretary of State did all that was needful to be done; but upon what principle could the present Home Secretary, or the right hon. Gentleman the late Secretary of State for 1212 the Home Department (Sir R. Assheton Cross), whom he saw in his place, justify the extent of interference which of late years had been practised by the Secretary of State? Did they justify it on the ground that it was strictly, as lawyers understood it, the exercise of the Prerogative of the mercy of the Crown? They could not. If not, upon what ground did it take place? He thought the House would see that, in truth, to a great extent, the interference by the Home Office was not sanctioned by Constitutional authority, and only received the tacit consent of the community because it was the only weapon at hand—rough, anomalous, and inadequate as it was—to redress a grievance which society admitted did exist, and demanded should be redressed. Again, Secretaries of State for the Home Department, with the onerous and responsible duties which properly involved upon them, were about the worst possible persons, whatever amount of care and attention they might bestow on the documents of a case, to deal with these questions. The introduction, under the jurisdiction of the Secretary of State, of that class of cases never would have been tolerated, or could have been justified, unless the mind of the country had been impressed with the fact that a grievance did exist in that matter, and that there was no other machinery adequate to deal with it. That the Secretary of State should be called upon to be a Court of Appeal, a Court of Error, and, practically, to hear appeals for new trials without the power of granting them, besides advising the Crown in the exercise of its Prerogative, within Constitutional limits, was a position in which no Minister ought to be placed, because it involved duties which it was impossible to expect him adequately and satisfactorily to perform. He therefore thought some such measure as the present Bill was a necessity; but it might require considerable amendment in Committee. He would not now enter into its provisions in detail; but he would suggest to his hon. and learned Friend the Attorney General whether, when they got into Committee, instead of endeavouring exhaustively to state what the Court was to do in a number of different events, set out principally in Section 3, it would not be far better, sounder, and more comprehensive legislation to say that the Court of Appeal 1213 should have power to do what was just and right in the case? Another suggestion he would make was, that the Court of Appeal should have power to deal with any fresh evidence that might be forthcoming.
§ THE ATTORNEY GENERAL (Sir HEXRY JAMES)
said, there was a provision to that effect contained in the Bill.
§ MR. CHARLES RUSSELL
said, he was glad to hear that was the case. He would further suggest that it was obviously of the highest importance, and especially in its early proceedings, that the Court of Appeal should be the strongest possible, because the Judges composing it would have in their hands the moulding of the Criminal Law of England, and the framing of the rules under which that Law was to be administered. Therefore, it should not be left to a mere rota of Judges to form this Court of Appeal; but the Judges should be selected in whom the Profession and the public had the fullest confidence. These were the grounds on which he supported the principles of this Bill, and therefore he should vote for the second reading.
§ SIR EARDLEY WILMOT
said, he gave his cordial support to the Bill, and entirely agreed with what the hon. and learned Gentleman the Attorney General had said, begging to be allowed to congratulate him on having brought the subject at length before the House in a tangible shape. To no one would the Bill bring more relief than to the present Secretary of State for the Home Department, whose ability in the discharge of his difficult and onerous duties no one was more ready to acknowledge than himself (Sir Eardley Wilmot), though differing from him in his political views. But the machinery at the Home Office for reviewing criminal cases was entirely inadequate and defective. It was a tribunal secret and irresponsible, and was an administrative and political, rather than a judicial Office. The present subject was one in which he had always taken great interest, for he had directed his attention to it for the last 30 years, and 23 years ago he prepared a Bill, in conjunction with the late Chief Baron Kelly, and introduced it into that House, though it never reached a second reading. That Bill, however, did not go so far as the present, being confined to an appeal in capital cases, and not absolute, 1214 but guarded by certain limitations; but, under the present Bill, he was perfectly satisfied that justice would be done, if the provision as to capital punishment were carried out. Where there was an equality of opinion upon the Bench, he considered that the decision should be in favour of the accused. Indeed, he thought that unless two-thirds of the Bench were in favour of upholding the verdict, the man ought to be allowed to go scot-free. He did not think the present responsibility should be left to the Secretary of State for the time being. Even Sir Cornewall Lewis, who had been mentioned as Home Secretary, with all his ability and great experience, sometimes made mistakes. As an instance of that he might mention the case of the Road Murder, in 1860. At that time, he (Sir Eardley Wilmot) was County Court Judge at Bristol, and he felt so convinced of the innocence of Mr. Kent, that he called upon the surgeon who first saw the body of the child after the murder. The surgeon assured him that the child was murdered in sleep, as was afterwards proved by the confession of the guilty party. That did away with the supposition that Kent murdered the child, because the theory was that he went into the room for a purpose which it was unnecessary to specify, and that, upon the child waking up, he murdered it. He (Sir Eardley Wilmot) thereupon went up to London expressly to see Sir Cornewall Lewis, and informed him of the statements of the surgeon; but Sir Cornewall Lewis, nevertheless, expressed his opinion that Mr. Kent was guilty. He had never in the course of his life seen such unparalleled suffering as had been borne by that unhappy man, accused as he was of murdering the child whom he most tenderly loved. Its mother was the first victim of those sufferings, and the father, not long afterwards, followed her to the grave. Differing, as he (Sir Eardley Wilmot) did on many political questions, from the right hon. Gentleman the Member for Birmingham (Mr. John Bright), he was happy to have that opportunity of paying his humble tribute of respect to him for the great assistance he had always given to render more humane the administration of criminal justice. The right hon. Gentleman had rendered him great assistance in a case which he had brought before the House of an innocent man 1215 (Edmund Galley) who had been wrongfully convicted. That, as well as other cases, showed that if a Court of Criminal Appeal had been in existence, it might have been the means of averting years of undeserved misery and suffering. If that one event in his Parliamentary life was the only one to which he could point, he was proud that it had been in his power to render that service to an innocent man. He strongly supported the Bill, and had no doubt that, if it had any little inperfections, they would be amended in Committee, and a measure would be laid before the country which would entitle the hon. and learned Gentleman the Attorney General to the thanks of the community.
§ MR. SERJEANT SIMON
said, he cordially supported the Bill He confessed that he went the whole length with his hon. and learned Friend the Member for Edinburgh (Mr. Waddy) in saying that there should be an appeal in all criminal cases as a matter of right; but he believed that public opinion was not prepared for this. The House, at any rate, was not prepared for it, and he thought that the Attorney General had acted wisely in bringing forward the present Bill in a somewhat curtailed form. Every step in the process of Law Reform, civil or criminal, had always been mot by objections, actual or assumed. Objection had been made to the details of the Bill. Some of the clauses were, no doubt, open to amendment; but they did not touch the principle of the Bill. That principle was that a prisoner was to have the right, qualified or unqualified, to a re-hearing of his case for the purpose of remedying any errors that might have been committed at the trial. At the present time a most informal and unsatisfactory re-hearing did take place at the Home Office; there was a secret investigation, and the only reason why public opinion tolerated a new trial under this most objectionable form was that the moral sense of the community would be shocked, especially in a capital case, if the sentence were carried out where there was an alleged wrong verdict. He thought that the right of appeal should include a revision of the sentence. With every respect for the Bench, he could not help saying that Judges, no more than juries, were infallible. A sentence recently passed was a great shock to public opinion on 1216 account of its severity, and if anything could have aggravated it, it was the language in which, according to report, it was delivered. It carried us back many centuries. There were now cases in which, had there been judicial inquiry in open Court, the sentences might have been entirely reversed. As it was, the Home Secretary was in a great difficulty. He was forced sometimes to a compromise by mitigating the punishment, instead of reversing the sentence altogether. Without question, the law as it at present stood required alteration. In a civil case where the amount in dispute was a few pounds there was a right of appeal, and yet in cases where liberty and character, or life, were involved they went on the principle that the tribunal was infallible. The time had come when we ought to have a more rational system"; and although he could have wished the Bill to go much further than it did, he accepted it as an instalment, and would give it his cordial support. He would only add that though in favour of the abolition of capital punishment, he could safely say that in supporting the Bill he was not influenced by any consideration of the kind, but simply by a desire that the administration of justice should be free, open, and upon a rational footing.
§ MR. EDWARD CLARKE
said, he rose to support the Amendment of the hon. and learned Member for Launceston (Sir Hardinge Giffard), challenging the principle of the Bill. The speech which had just been delivered by the hon. and learned Member for Dewsbury (Mr. Serjeant Simon), whatever value it might have as a contribution to the controversy, was not a speech in favour of the Bill. As he understood the speech of the hon. and learned Member, it appeared that the hon. and learned Member supported the Bill as advocating the idea that it was the right of every prisoner to have a re-hearing of his case. That, however, was not the principle of the Bill. In the Bill, with regard to everything except capital punishment, the right of the prisoner was qualified in a way in which no right could be justly qualified and still remain a right; that was to say, by the will of somebody else—by the permission either of the Judge or of the Attorney General. The hon. and learned Member also thought that sentences were often ex- 1217 cessive, and certainly no feature in the Criminal Law was more unsatisfactory than the inequality of sentences; but this defect was not dealt with in the present measure; as it stood, the Court would have no power to make any alteration in a sentence unless the prisoner had been wrongly convicted upon one indictment, and should have been convicted upon another to which a smaller punishment attached. He had listened with surprise to the speech of the hon. Baronet the Member for South Warwickshire (Sir Eardley Wilmot), who had identified himself with the question of criminal appeals. He had expected to hear some justification of a proposal which was not sanctioned by the experience of other countries, by the opinions of the Judges in this country, nor by the opinions of the great majority of those members of the Legal Profession who were familiar with our criminal procedure. The hon. Baronet had mentioned the case of the Road Murder, and also that of Edmund Galley. The latter was certainly a remarkable case, and he was not sure that the late Lord Chief Justice Cockburn could be acquitted of some negligence in not using his influence to bring the case tinder the attention of the Government earlier. But no assistance could have been rendered by the proposed Court of Criminal Appeal. The facts ultimately relied upon were not known immediately after the trial, and unless they were going to allow any sentence upon any criminal to be re-opened after any length of time the Bill was useless for such a purpose. The hon. and learned Member for Dundalk (Mr. Charles Russell) had supported the Bill; but, in his opinion, the hon. and learned Member went astray at the very outset. He had compared civil with criminal trials; but there was no real analogy between the two. No one who was at all familiar with Criminal Courts could have failed to observe with what care a capital inquiry was conducted, always before one of the Judges of the Superior Courts. The criminal was first brought before the magistrate, where the evidence against him was fully gone into, and he trusted it always would be fully gone into, for by tins means the prisoner was put upon notice of the evidence which would be brought against him. Then his case came before the Grand Jury; and, thirdly, he had to meet the evidence 1218 brought against him before a jury. But besides, and, perhaps, more valuable than all this, was the presumption in favour of his innocence with which he started, and which followed him throughout his trial down to the concluding words of the Judge, who almost always directed the jury that if they had any reasonable doubt as to his guilt they ought to acquit the prisoner. That was a safeguard far more valuable for the innocent man than any multiplication of appeals before any casual or fixed tribunals that could be established; but he greatly feared that the introduction of a Court of Appeal would greatly diminish the value of that presumption. The hon. and learned Member for Dundalk pointed out that in 25 per cent of civil cases anew trial was granted, and argued, on that account, in favour of an appeal in criminal cases. He was not sure that, but for that chance of appeal, the decisions in civil cases would not be come to more carefully. It was, therefore, an argument against giving appeals in criminal cases, lest it should induce the same carelessness on the part of juries as was shown in civil cases. The hon. and learned Member said you must take this Bill to be proved by its necessity. Certainly, there was no other argument open to its supporters. The Attorney General had dismissed with curt contempt the opinions of the Judges now on the Bench.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
I am sorry to interrupt the hon. and learned Gentleman; but I really must interpose. I said not one word about curt contempt of the Judges.
§ MR. EDWARD CLARKE
said, the phrase, "curt contempt," was his own, and not the hon. and learned Attorney General's; and he used it because the hon. and learned Member said that Judges and lawyers were not very much inclined to adopt reforms in their Profession. His hon. and learned Friend (Mr. Charles Russell) was content to accept as a reason for the Bill the statement that out of 36,000 criminal convictions during the last three years 12 persons who had been found guilty were set free by the Home Secretary, either because he was satisfied of their innocence, or because there was very much doubt whether they could properly be kept in confinement. He hoped the 1219 Attorney General would lay on the Table a statement of the facts of these cases, giving the time of conviction and the time when the sentences were remitted; because he believed it would be found that in most of them the Court, as constituted by this Bill, would be of no use at all. The House was invited to pass the second reading of a Bill which stood first on the Order Paper that night, while the Bill which stood second contained provisions utterly inconsistent with those of the first Bill on the same subject. The House, therefore, was asked, on the authority of the Government, to send to the Grand Committee two Bills dealing with the same subject in an entirely different way. Were the Government going to adopt the plan recommended by the Commission of Judges, and matured by the most able criminal lawyers, or were they going to throw it over in favour of a Bill which had no judicial authority in its support? The Criminal Code Procedure Bill provided that in every case there might be an appeal by leave of the Court; this Bill provided that there should be an appeal by right in capital cases, and in other cases by leave of the Judge. The Attorney General said it was necessary to have the leave of the Judge, because otherwise there would be such a number of appeals that the Court would be overworked; and yet he gave an elaborate calculation showing that a Court of three Judges could dispose of three cases in one day. Well, he did not know of any other instance in which one case could be disposed of in a third of the scant day which the Judges now allowed themselves. This Bill was giving an appeal in cases in which no appeal was required. He could recall only one instance in his experience or reading, during the last 50 years, in which a person condemned to death was absolutely pardoned. In 1877 an unfortunate jury, having been kept 11 hours listening to the Charge of a Judge, found, late at night, four human beings guilty, and the Prerogative of Mercy was needed to set the matter right. Now, if this Bill was passed there would be an application for a new trial in almost every murder case. What would follow? In the first place, there would be the delay, with the chance of something going wrong with the witnesses for the prosecution. In the second trial some of the witnesses 1220 might be absent, some juror might be obstinate, or be influenced by what he had seen in the newspapers or by discussions upon the case. When the application for a new trial came before the Court of Appeal, counsel of the highest rank would be retained, either by wealthy friends of the prisoner, or by those very kind persons who, whenever a capital sentence was pronounced, did their best to save life. Every word of protest uttered by counsel would be reported, and would make the task of the Home Secretary much more difficult if the Court were to refuse a new trial. But, suppose a new trial were granted, fresh evidence would be brought forward. There would be several wealthy criminals, for poison was very much more frequently used in this country than was commonly believed by those who were guided simply by the verdicts of guilty. Whenever there was a trial for murder in which poison had been employed, scientific witnesses would be found to give evidence, which the Court of Appeal could scarcely refuse to consider when asked not to give its own judgment of guilty or not guilty, but to say whether the unfortunate condemned should not have a chance of obtaining a verdict in his favour from the Court below. The Attorney General must have seen the strange light thrown on the probable working of his Bill by the hon. Member for Dangarvan (Mr. O'Donnell), who enthusiastically supported it on the ground that every conviction obtained in Ireland during the last six months had been wrong. ["No!"] Hon. Gentlemen who said "No!" must not have been present at the time. The hon. Member said that if those cases had come before a Court of Appeal, and had been sent back, the menaces employed would have prevented jury packing. But they might have prevented honest verdicts as well. Suppose a case were sent back for a new trial and the jury found the man guilty, an appeal would be made to the Home Secretary. It would be urged on him that the Judges had sent the case for a second trial because they were not satisfied, and the Home Secretary would find it very difficult to resist the appeal. There were two reasonable grounds upon which a measure of this kind might be recommended—one, that it would prevent the punishment of innocent persons; the other, that it would relieve the Home 1221 Secretary from an anomalous and most painful duty. But, so far from preventing the conviction of innocent persons, the Bill would have the contrary effect, because it would take away from jurors that sense of responsibility which they now had. There was nothing more awful than the closing scene of a capital trial, when the jury were being charged by the Judge. If the jury found the man guilty, there was no question of the sentence the Judge had to pronounce; it must be sentence of death. That very often led to the guilty being acquitted, and made it almost impossible for an innocent man to be found guilty. But if a juryman, who might otherwise be reluctant to find a verdict of guilty, knew that there was a power of appeal, he might not feel his responsibility so greatly, and there would be a better chance than at present of an innocent man being convicted. With regard to the question of relieving the Secretary of State of the very difficult duty which he had at present to perform, if he thought this Bill would relieve the right hon. and learned Gentleman of that terrible responsibility, he should be inclined to waive objections of all kinds, and endeavour to support it. But he did not believe it would relieve him at all; on the contrary, he felt that it would only increase his responsibility. He had the greatest respect for the present Home Secretary in regard to the way in which, during the last three years, he had dealt with all capital cases brought before him. He acknowledged the right hon. and learned Gentleman's unwearied industry and unfailing courtesy, and he was quite sure that this most serious responsibility had never been better or more worthily discharged. In the year 1880 28 persons were found guilty of murder and sentenced to death. Of these 21 were men and seven women. Only 13 of those persons were executed, and they were all men. In 1881 23 persons wore sentenced to death; 19 were men and four women, and only 11 men were executed. The lives of the majority in each year were spared, not because they were improperly convicted, but because the Home Secretary advised Her Majesty to exercise her supreme Prerogative of Mercy. But what he wished to emphasize was this—that exactly the same question must remain for the decision of the Home Secretary 1222 whatever Court of Appeal they set up to deal with those death sentences. The responsibility, however, would not remain the same; it would be aggravated. If they took all the criminal commitments and convictions in the country they would find that from 73 to 75 per cent of the criminals were convicted of the offences with which they were charged—12,000 every year out of 16,000. But turn to the charge of murder, and see what the result was there. In 1880 61 persons were tried for murder—28 were convicted; in 1881 61 persons were tried—only 23 were convicted. How was it that the proportion was altered? Surely it was to be found in the very safeguard for innocent persons—the responsibility of the jury; and if they lightened that responsibility by enabling the jury to think that if they made a mistake the Court of Appeal would set it right, then probably out of those 61 persons the Home Secretary would have to deal, not with 23 or 28 persons, but with 40 or 45, and he would find the anxiety of his duty doubled. He did not care very much for the argument with regard to the abolition of the death punishment, nor did he lay stress on the illogical character of the distinctions drawn with regard to the Bill, because, if it was desirable to have an appeal, let them have it as often as they could. But his protest against the Bill was, that it gave the appeal as a right in the cases where it was least wanted, and where the granting of it might do more mischief than it could possibly do good, by lightening the feeling of responsibility on the part of the Judges and juries who were dealing with capital cases, while it would not lighten the responsibility of the Secretary of State. He protested likewise against the Attorney General having anything to do with the right of a criminal to have a new trial. He hoped, however, in anything that might be done, whether under this Bill or some other, there would be a right of appeal against a sentence. Sentences of penal servitude were pronounced with a light heart by Judges, who sometimes did not quite know the amount of misery they were inflicting on the unfortunate creatures whom they sent away from the dock. He was sure this point in the administration of the Criminal Law brought a great deal of anxiety and pain to the Secretary of 1223 State, who sometimes was implored to consider the terrible sentences which had been passed, and there could be no reason why appeals in such cases should not be allowed. He believed the Judges themselves would be glad of it. Some of them, perhaps, felt afterwards that the anger evoked by the trial had led them to pass a heavy sentence, when a lighter would have been sufficient; and there would be this advantage from the question of sentence coming before a Court of Criminal Appeal—that there would be some regularity and equality of sentences among the Judges administering justice in the several parts of the country. On these grounds he hoped the Amendment would be assented to.
§ SIR WILLIAM HARCOURT
said, that, after the long and interesting debate to which they had listened, it would not be necessary for him to occupy the attention of the House at any length. Hon. Members, however, would probably expect that a person filling the Office which he had the honour to hold should say something on this subject. There could be no doubt that the Home Secretary was the person most interested in the passing of a Bill of this description—that was to say, if he were at liberty only to consider the weight of responsibility which was cast upon him; although, of course, any person occupying that position, if he thought the method proposed were less efficient than that at present in operation, would feel it his duty to resist it, however great the responsibility might be, if he thought the existing method dealing with the question were satisfactory. He had to thank the hon. and learned Member who had just sat down for the extremely kind and indulgent manner in which he had spoken of the way in which he had endeavoured to discharge the duties of his Office. But he should like to say a word in regard to the exact position of the Secretary of State in reference to this matter, which he thought was not very clearly understood by the public, or even by the House. The notion that the Secretary of State considered himself to be, or endeavoured to act, as a general Court of Appeal to re-try criminal, or even capital cases, was entirely unfounded. He did not claim that right, and he did not accept that responsibility. If, therefore, hon. Members thought there ought to be, as he thought there 1224 ought to be, some method of re-trying these cases, they could not fall back upon the Secretary of State as an official discharging a duty which he had never undertaken. Another error was that the administration of this matter in the Home Office lay in the breast of each individual Secretary of State, who acted in some arbitrary manner according to his own ideas or fancies. Nothing could be more incorrect than such a notion; and nothing could be more improper if it were true. If they were to act, in the phrase of Selden, "according to the measure of the Lord Chancellor's foot," such a proceeding would naturally shake the confidence of the public in the administration of justice and in the execution of the law. It had always been the endeavour of successive Secretaries of State to act in accordance with the traditions of the law, and of the administration of the Home Office. He ventured to say that there were very few cases in which different Secretaries of State would come to different conclusions upon these questions. There was, in fact, a desire to act on a certain fixed principle. The last speaker had referred to the fact that in the two years which he specified no women were executed. This was owing to the circumstance that in these two years the only cases in which women were convicted were cases of infanticide; and for the last 30 or 40 years the established practice of the Home Office had been to remit the capital sentence in such cases. Of course, the Secretary of State had to consider many cases where sentence of death had been passed, accompanied by a recommendation to mercy by the jury; and in such cases the Secretary of State had to determine whether the recommendation to the mercy of the Crown ought to be acted upon. There was another class of cases—probably the most important of all—where, after the trial, circumstances transpired which had not been brought under the notice of the Judge or the jury. This occurred sometimes by accident, but more frequently from the inability of the prisoner to have at his command the evidence which would have served his purpose at the trial, and which would have cleared him from the charge. That happened especially in the case of the poor. The moment such a person was convicted, and death was staring him in the face, witnesses came forward to give 1225 evidence to the Home Office which would have served him before the Judge and jury, and that evidence was laid before the Secretary of State, who could not be as competent a judge of these matters as the tribunal it was now proposed to create. But even if he were more competent than this tribunal to sift the facts, and to apply the law to them, there was a fatal defect in the present system, which must condemn it—namely, the want of publicity as to the grounds on which the decision of the Home Secretary was based. He had over and over again heard the decisions of the Secretary of State questioned, because nobody knew the grounds on which he proceeded; and nothing more shook the administration of justice than to hear that the Judge and jury had come to a decision, and that the Secretary of State had intervened and commuted the death sentence, and yet the grounds for such a commutation were not known. That was a fatal defect in the administration of the Home Office which this Bill cured. The evidence would be made known to the public through the proposed tribunal, and there would grow up a code of law applied to these criminal cases that everybody would be conscious of, and that would have its weight upon public opinion. To his mind, this was an absolute and a conclusive argument in favour of creating another jurisdiction. In the case of Nash, to which his hon. and learned Friend (Mr. Charles Russell) had referred, he had a great deal of doubt; but he would state the way in which his doubt was solved. No doubt it was a sound principle of law that a man who set fire to a house, being reckless of the consequences, if the result was fatal to human life, might be held to be guilty of murder, even though he did not intend to kill particular individuals. In the case in question, however, the principal witness came to the Home Office in great distress of mind, and said there was a circumstance which he ought to have mentioned, but which he had forgotten at the time, although questioned with regard to it—namely, that he saw the prisoner, after the fire, going for the fire escape to enable the persons in the house to get out. Now, that circumstance showed, at all events, that the man had not been as reckless of human life as he was said to be at the time. How necessary it was that such 1226 cases should have a reconsideration he was sure no one who had occupied the position of Secretary of State could for a moment doubt. What was his first experience after he entered upon his Office? Almost immediately after he took Office there came before him the case of two men who were convicted of burglary, and sentenced to 10 or 20 years' penal servitude, he forgot which. After they had been two years in prison a man confessed that he himself committed the burglary. He (Sir William Harcourt) had the matter carefully examined, and found there was no doubt of the innocence of the two men, and of course they were pardoned. One of those two men, 15 years before, had been convicted of burglary and sentenced to 15 years' penal servitude, the worst punishment a man could undergo. He had undergone two years of the sentence and then received pardon, it being proved that he was innocent of the crime for which he was convicted, so that that man had been twice tried by Judge and jury, and twice wrongly convicted, and twice received pardon, because it was proved that on both occasions he was innocent. Was not that a lesson to any man to make him feel that these were matters that required consideration? Take, again, what happened last year, in the case everyone knew of, and which his hon. and learned Friend the Attorney General mentioned as a case where sentence had been commuted. One of the great disadvantages of the administration of the Home Office was that the public did not know the facts, and people might condemn a decision without knowing the grounds for it; but everyone knew the facts of the two farmers who were convicted of an assault and mutilation, and sentenced to penal servitude, and who were liberated afterwards upon the confession of the man who charged them with the offence, the man having committed the assault upon himself. In that case there was fresh evidence in the shape of the confession of the prosecutor; and there were witnesses who, if they had been called on the trial, would have established the innocence of those men. If they were to have evidence come up afterwards, surely it was much better that it should be considered by a Court in which that evidence would be sifted on oath, and everybody would know the reason why so grave a thing as a capital sentence 1227 had been set aside. Preference had been made to Sir Cornewall Lewis, whose name he regarded with peculiar veneration, and to the Road Murder, with respect to which he might assure his hon. Friend opposite (Sir Eardley Wilmot) that he perfectly recollected Sir Cornewall Lewis expressing his firm belief in the innocence of Mr. Kent at the time. Another very well-known case occurred during Sir Cornewall Lewis's tenure of Office—namely, the case of Dr. Smethurst. Could anyone believe that that case would not have been more satisfactorily disposed of if it could have been remitted to a second Court? His hon. and learned Friend the Member for Launceston (Sir Hardinge Giffard) had said it was very desirable not to alter the tone of the tribunal, and had suggested that the Court of Appeal would vary according to its composition. That might be true; but what could vary more than the minds of the Judges who sat alone to try criminal cases? It seemed to him that if they had a Court of this description they should have more harmony and uniformity in the tone of the tribunal than they had now in the independent and isolated action of particular Judges. As the hon. and learned Member for Plymouth (Mr. E. Clarke) had said, one of the great misfortunes, one of the great scandals, of our criminal jurisprudence was the inequality of the sentences given by different Judges for the same offence. One Judge would sentence a burglar to five years, and another to, perhaps, 20 years' penal servitude, according to his own particular views of the adequacy of punishment; but the best way to correct that anomaly was by referring such matters to a larger tribunal, when there would naturally be more harmony and uniformity. For himself, whether in the graver matter of capital sentences, or in the matters which, he had no doubt, would hereafter come to be dealt with, he saw no disadvantage, but, on the contrary, great advantage, in having the regulating influence of an Appellate Court of this description. He would not detain the House longer, but he had wished to state the principles on which the Home Office had acted, not only in his time, but also in that of his Predecessor, and to record his profound conviction that the exercise of the powers of the Secretary of State could never be 1228 a sufficient and complete substitute for such a Court of Appeal as the Bill proposed to establish.
§ MR. GIBSON
said, that the Bill, which was of great importance and interest, had happily been discussed by both sides of the House without the slightest Party bias. He would take the Bill as it stood, and would consider how far it bore the test of the experiences just related by the Home Secretary. Now, he ventured to say that no one who had read the Bill, and had heard the speech of the right hon. and learned Gentleman, would be satisfied that anyone of the cases mentioned by him would be covered or even touched by the present Bill. The measure dealt with two points of practical importance—one the reform of procedure, and the other the introduction of wholly new principles. The first of these was comparatively unimportant for the purposes of the present discussion, because the reform of procedure in relation to appeals already allowed—in other words, the methodizing and new arrangement of appeals now in existence—was, in reality, no more than a departmental change. He admitted at once the desirability of some such reform; but details of that kind might be passed over on the second reading of the Bill. The more important and more often debated part of the measure was that which introduced the novel principle of giving appeals at present unknown to the law, and under conditions unknown to our existing experience. That was a matter requiring to be looked at from many standpoints, and rightly to be looked at from the standpoint of the public good and fairness to the prisoner. But the way the Bill proposed to deal with that question was that the prisoner, in capital cases, should, at his own mere will and desire, without satisfying anyone that he had a real, bonâ fide case, be able to appeal. Now, that was a grave and startling change which ought to be considered on its own merits; and he would point out that it was anomalous to say they would give that right to a man convicted of murder and under sentence of death, and yet deny it to a man whose liberty and honour was at stake. Another anomaly was that this right was given to the prisoner and denied to the prosecution. It was a Bill supposed to assist the administration of justice; and why, therefore, should a failing prosecution and 1229 the public suffer and a criminal plainly guilty be let loose? The object should be not to give a chance of escape to the real criminal, but to elucidate the truth of the matter. It was perfectly obvious that in every case where a man had been convicted of murder and sentenced to death, he must avail himself of the provisions of the Bill. He was not disposed, on the consideration that he had given to the question to think that giving the appeal without check had been proved to be either desirable or advantageous to the administration of justice; but he was disposed to think that it must largely weaken the sense of responsibility that existed very largely at present in capital cases, and that feeling was entirely weakened and frittered away by the details and provisions of the present Bill. The Bill also introduced delay and uncertainty in carrying out a sentence of a most grave character, and prolonged the agony of the unfortunate man, and left the result that many murderers would get off, because public opinion would revolt against executing a man who had had a long time allowed him between his conviction and the carrying out of the sentence. It would also largely weaken the authority of the Court which tried the case. No light had been thrown, either by the Attorney General or by the right hon. and learned Gentleman the Home Secretary, upon what would be the number of the Court; but the Bill said it was to consist of three, five, or seven members, but did not say how the number was to be decided. Again, if a new trial were ordered, what was the result? Upon a new trial being ordered, there was nothing whatever to prevent a fresh appeal upon the result of that; and was it not perfectly obvious that in the case of a man who had had two appeals and two trials, the likelihood of his execution would be reduced almost to a minimum? Suppose that in a tribunal of five there were a difference of opinion—three Judges for affirming the conviction and two for reversing it—the Bill said the judgment was to be affirmed and the man hanged. But would public opinion be satisfied that wrong was not done in carrying out a sentence after the dissent of a powerful and highly educated minority? How did the Bill apply to the duties of the Home Secretary? The right hon. and learned Gentleman who 1230 had just spoken had spoken as if the Bill were to ease him in the discharge of his duties; but how was that? He had failed to hear him say one syllable to indicate that a single anomaly would be removed on the passing of the Bill. It was a mistake to suppose that the responsibility of his right hon. and learned Friend would be relieved. He would take the cases which had been mentioned in order. First, there was that of infanticide; the Home Secretary would not be relieved there, for the Court of Appeal would be bound to affirm the appeal in every one of them. He would still have to consider recommendations to mercy. With regard to after-discovered evidence, his position would be in no way altered. Even in a ease like Nash's case, the Court of Appeal would give him no relief. He thought, therefore, that the arguments in support of the Bill, at all events in relation to the jurisdiction of the Home Secretary, did not bear out the statements which had been made. A very important charge had often been brought against that jurisdiction, declaring it to be unreasonable and unscientific to have a private inquiry before the Home Secretary. But, however that might be, all those inconveniences would remain under the new system. He did not think the Bill rested on any careful reasoning; and he trusted that before it reached another stage they might be furnished with those 12 cases which were said to have happened during the last three years, in which there was alleged to be a miscarriage of justice, in order that they might consider them in connection with that extremely important subject. If Judges had been dissatisfied with verdicts in the past they communicated privately with the Executive, and invariably the sentence was either modified or remitted altogether. He would not go into the question of authority. Lord Lyndhurst and Lord Brougham, as well as Chief Baron Pollock, Lord Campbell, and Baron Rolfe, had opposed the principle, as did Sir George Cornewall Lewis in 1860, speaking on behalf of the Government of the day. He was not much pressed by the analogy between civil and criminal cases, for, even according to the Attorney General, the analogy did not hold good throughout. He desired, however, to know whether the Crown was willing in all cases to 1231 pay for the counsel employed by the appellant prisoner? If they were not, it would be said that the appeal was only for the rich. He took it that they were now, in reality, legislating in favour of an appeal in every case; and therefore they ought to take care that the poor, as well as the rich, had the advantage of it. If it was intended to abolish capital punishment, he thought it would be a great deal the best plan to do so directly and frankly. This, in his opinion, was not the time for it, nor did he think that this was the method by which such a course should be taken. Everyone must desire that a person who was placed in such a position as that of being tried for his life should be tried in the fairest possible way, with every conceivable safeguard for an honest and straightforward trial, and the jury should consider the case from the most upright point of view. He also thought that every person who was placed in such jeopardy should be given the freest and fullest means of defence. But he was not satisfied that it was advancing the administration of justice, or any concession to the claims of humanity, to invite, as they did on that occasion, an appeal in every case, which must add in innumerable instances to the agony of suspense, without doing anything to the prisoner except injury, by keeping his pain and suffering open for some time. He therefore believed that, whether they intended it or not, in the result this Bill would discredit and ultimately cause the abolition of capital punishment. He thought that fact, was recognized by the speakers who had taken part in the debate; and he also thought it would be found that all and everyone who had taken part in the discussion were Gentlemen who wore not in favour of capital punishment. Now, that was a grave issue, and it ought to be submitted to the nation in a frank and clear manner. He ventured to think that it was an issue which had not been presented to the judgment of Parliament, or of the country, in a sufficiently clear and satisfactory manner.
SIR E. ASSHETON CROSS
Sir, I do not think it would be respectful to the House if I did not offer one or two words after the speech of the right hon. and learned Gentleman who now fills the Office of Secretary of State for the Home Department. I will only say 1232 about the whole of the debate, to which I have listened with great attention, that I am very sorry, for one, that it has been entirely confined to lawyers. I should have thought that the question was one of very general interest, and one upon which the House ought to have had the opinion, and had a right to demand the opinion, not only of professional men, but of persons who had studied the general question, who would have been able to present it in the light which seemed best to them. We heard, at the beginning of the debate, something as to the opinion of the Judges. It has been asked what the opinion of some of the present Judges, and of most of the best Judges was? The hon. and learned Gentleman the Attorney General seemed to make light, if he will allow me to say so, of the opinion of the Judges; and he said that those learned gentlemen were apt to be biased by their professional career, and that they had never stood forward as great law reformers. The hon. and learned Gentleman called the attention of the House to several of the law reforms which have taken place, and he stated that all of them were opposed by the Judges of the day. Therefore, the opinion of the Judges on a matter of this kind was not the best guide for the House of Commons. I think I have only fairly stated what was the opinion of the hon. and learned Attorney General. Now, I should be very sorry to put aside the opinion of the Judges for that of the practising lawyers. I wish, on the other hand, that we had had the opinion of persons of very great experience in regard to the administration of the law, such as magistrates, and persons in other capacities, who might have expressed their opinion on this question with great advantage to the House. It has been argued that it is right to assimilate the practice of the Criminal Law to that of the Civil Law in respect of appeals. I think I am bound to say that, as far as the civil question is concerned, of late years we seem to have gone somewhat in the wrong direction. In these days, the first trial which takes place at the Assizes is not looked upon by any of the parties to the suit as, practically, an end of the litigation. On the contrary, it is looked upon as the beginning of it; and I know that in the majority of cases, when the parties meet at Nisi Prius, it is considered that it is not to be the end of the 1233 story, but that, whatever the verdict may be, the case will have to be argued again in the Court in London in the first instance; that after that there will be an appeal; and, finally, a further appeal. The whole tendency of our jurisprudence is to make as little as possible of the first trial, and generally to hurry it over as fast as possible, reserving everything to be considered hereafter. Then, if you are going to assimilate the criminal and civil procedure, I think you will make a grievous mistake. I think, further, that there is very great weight in what has been said by all the speakers on this point, on both sides of the House; and that, as far as a trial for life is concerned, there is no trial throughout the whole of England, or I believe in any other country, to which everyone concerned devotes so much of his ability, and the whole of his time and attention, in order to arrive at a right conclusion. I much fear that if the Bill passes in its present shape, it will, to a considerable extent, do away with that condition of things. I cannot help thinking, also, that the remark made by my lion, and learned Friend who sits opposite (Mr. Charles Russell) proves exactly what I have stated, because it has been laid down that if the Bill passes the Government must take care that the First Court is made most essentially a strong Court. And why? Because it is feared that if it is allowed to be a Court composed of ordinary Judges, taken haphazard, and not a specially strong Court, they would allow this process of appeal to grow up in such a way as directly to annihilate the ordinary manner in which the criminal jurisprudence is carried on. [A laugh.] I thought I heard someone laugh—at any rate I detected a smile, when my right lion, and learned Friend (Mr. Gibson), who has just sat down, spoke of the difference between the poor man and the rich. Nevertheless, that is a matter which the Government must consider seriously on this occasion. They are bound to take into their consideration the difference between these two classes in regard to appeals, the hearing of which will be carried on in Court in the absence of the prisoner. If they are to be carried on in the absence of the prisoner, it is absolutely essential that he should be represented by counsel, and if he is a poor man it will be necessary that the State should pay for his 1234 defence. I can see no provision in the Bill which secures that; but if we are to put the rich man and the poor man on the same footing in regard to appeals which are to be dealt with in London, and before the Court below, we must provide the appellant prisoner with counsel. It would be altogether unfair to argue an appeal unless the prisoner was able to meet the argument by counsel. Therefore, I doubt very much whether this Court of Appeal will be successful in the long run, however much we may agree with it in theory; and there is no one who ought to be able to speak more strongly upon this point than myself, because, by a Bill which I passed in 1879, I gave an appeal in every case against the decision of every magistrate in every Court. Perhaps I may be allowed to give to the House some statistics in reference to the abolition of that Bill. In the year 1881 I find that there were 669,000 summary convictions, and there were only 122 appeals. Out of these 669,000 convictions, which, of course, included all cases, however trifling, there were only 41 cases in which the judgment was reversed. That is a very small percentage, and it speaks highly for the administration of justice by the magistrates. There is one difficulty about the present Bill to which I wish to call the attention of the House. We are placed in this very peculiar position—that we have two Bills brought in by the Government—one by the Attorney General, and the other by the Solicitor General—on precisely the same subjects, but with totally different provisions. I believe that an hon. Member called the attention of Mr. Speaker to that fact some days ago. At all events, it is a curious circumstance that the Government should have introduced what is directly the Code which has been passed by the Committee of Judges in the one case, and that they should have brought forward another Bill which only contained a fifth part of that Code relating to appeals, but with totally different provisions as to the subject-matter. It strikes me that this was done for a particular purpose; and it must not be said, if we vote against this Bill, which the Government have now brought forward, that we are against all appeals when properly constituted and properly safeguarded, because in the Bill which I hold in my hand—the Criminal Code Bill—which is practically the Bill of the 1235 late Sir John Holker, and which has passed through the Committee of Judges after much time and attention had been devoted to it—in this Bill, as now introduced by Her Majesty's Government, there is an appeal granted with certain qualifications and restrictions. I, for one, entirely approve of the clauses of the last-named Bill, with one exception. Therefore, if I vote against this Bill, and other hon. Members vote against the Bill we are now considering, no one can say that we do so because we are not in favour of a certain amount of appeal being given; but we are absolutely against the particular kind of appeal which is given in this Bill. That leads me to consider what are the main points of difference, because it is quite clear that the Government would not have introduced the measure in this way unless they wished to bring forward one or two points which are not in the Criminal Code. The first objection I take to the Bill is this—in the Criminal Code Bill, whatever appeal you have is granted to everybody. It is a very great mistake, I think, to have departed from the principle of giving the same appeal in the case of all indictable offences, and to have given a new appeal that is restricted to the case of murder. That, I think, is quite sufficient to make us object to this Bill. Again, there is another matter which is of considerable importance also, and that is that in the Criminal Code Bill there is no power given to object to fresh evidence before a Court of Criminal Appeal; but in the Bill I hold in my hand fresh evidence may be given. There is a growing practice—I do' not know whether the right hon. and learned Gentleman the Secretary of State has seen much of it during the last three years, but certainly it was a growing practice when I was in Office—among attorneys, on the chance of getting then-evidence more favourably considered elsewhere, to withhold evidence which ought to have been given before the Court in which the original trial took place. They did so, no doubt, for several reasons, because they knew perfectly well that if they brought forward every bit of evidence in the first instance in the Court below, all of it would be gone into and examined, and the whole of their evidence would be thoroughly sifted. They found it very much easier 1236 to send up affidavits to the Secretary of State, because they knew affidavits could not be examined in the way in which the witnesses would be, and there would not be that searching cross-examination which would otherwise be the case. I am very much afraid that by this Bill we shall strengthen the practice which has been and is growing up; and therefore I think it would be very much better if the Government were to rest content with the appeal which is given in the Criminal Code Bill, the effect of that appeal being this:—In that Bill you have to apply for the leave of the Judge. As far as questions of law go, it provides that in such cases the appeal should be with the leave of the Judge, or by the fiat of the Attorney General, in the same way as by the present Bill; but as to questions of fact the appeal can only be made with the assent of the Judge. We have heard a good deal about juries not being trustworthy, and that mistakes may take place; but it is really going a long way to say that there is a single Judge on the Bench who would not immediately grant a new trial in a case of murder if he thought that there was the slightest ground for it. I cannot help thinking that if you are to make an experiment at all, which I presume you are going to do, and which I have not the smallest objection to, the wiser experiment would be to give the right of appeal to everybody for all indictable offences, but to safeguard it in this way, and say—"Before you can have this right of appeal on questions of fact you will have to ask the Judge who tried the case originally for leave to appeal." If that breaks down, which I think it would not, you would then have fair ground for saying that, the Judge having refused an appeal in one case or another, you are bound, consequently, to provide something new. But try this experiment first. I think they will find it a much wiser, safer, sounder, and more logical course to give the right of appeal by leave of a Judge on questions of fact, and by leave of a Judge or by the fiat of the Attorney General on questions of law. If you do that you will get rid of great anomalies. I cannot imagine how you can stand up and defend the proposition that a man who is tried for his life may have his right of appeal without asking anybody at all, but that a 1237 man who is tried for his life for murder, and by the greatest good fortune gets found guilty of manslaughter, and is transported for life, should be told—"You have had the chance of a jury. If you had been found guilty of murder you might have appealed; but as they have only found you guilty of manslaughter you cannot appeal at all." I cannot conceive how that can be regarded as a satisfactory condition in which to leave the law. It would be very much better, in the first instance, because it is all tentative, to say—"We will give the same appeal to everbody, but we will give it with the leave of the Judge." It is that anomaly which I object to, and I think if the suggestion I make were adopted the Bill might be made to work without grievous injustice, and might be made to work well. The Secretary of State for the Home Department has rightly described what the duties of his Office practically are. I have no objection to take to anything he has stated with regard to them; but I will go one step further, and I will say that not only are the traditions of the Office firmly and faithfully adhered to, by every Secretary of State in these matters, and politics have nothing whatever to do with questions of this kind; but I venture to say that if the right hon. and learned Gentleman will look into the records of the Office he would find himself able to state one thing further—namely, that the powers formerly attaching to the Office were somewhat different from what they are now. My hon. Friend who sits behind me (Sir Eardley Wilmot) alluded to the late Mr. Waddington. I entirely agree with the praise which he bestowed upon Mr. Waddington; but if there is one doctrine which I hold more strongly than another it is this—that the responsibility established in a capital case rests solely with the Judge and jury who try the case, and that no responsibility rests upon the Secretary of State until he chooses to interfere. That is my own doctrine, and it was the doctrine held throughout Mr. Waddington's time—namely, that the Secretary of State incurred no responsibility until he began to interfere. But that is not the doctrine now held by Members of this House, and the Secretary of State is very often blamed for not interfering in cases in which it was probably quite right not to interfere. I pre- 1238 fer the old doctrine, in regard to the position and the true functions of the Secretary of State. I am quite aware that difficulties do arise sometimes—perhaps not often, but sometimes—by evidence being produced after the trial; but I do not think that in any case I can call to my mind at the present moment would that evidence have been forthcoming. Such a case never came before me, and certainly it would not have been so in the two cases mentioned by the right hon. and learned Gentleman the Secretary of State just now. I mean that the evidence would not have been forthcoming until the time limited for granting an appeal—that is, seven days after the conviction had elapsed. By this Bill notice of appeal must be given within seven days after the conviction; and, in the case I have referred to, what would be the position in which the Secretary of State would be placed? The time for the appeal—namely, seven days, would have elapsed; but the time for the execution of the prisoner would not have arrived. Now, this evidence, as a rule, is not yet gathered together until the friends of the prisoner begin to talk about it; it may be with a view of bringing forward an alibi; but new evidence of this kind would only be brought forward within a day or two of the execution. In such a case the man could not appeal at all, because he must give notice of the appeal, and the grounds of appeal within seven days after the conviction. But the seven days have expired, and, therefore, he cannot appeal at all. [The ATTORNEY GENERAL (Sir Henry James): He can obtain leave.] Yes, within the seven days.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
He can obtain leave after the seven days by the permission of the Court.
§ SIR R. ASSHETON CROSS
I am glad that that is so, because I know that whenever new facts and new evidence do come forward they do not come forward until late in the day, and sometimes barely in time to enable the Secretary of State to stop the execution. Therefore, I think it is evident that if the Bill passed in its present shape, the Secretary of State would be placed in a position of much difficulty. My hon. and learned Friend the Member for Launceston (Sir Hardinge Giffard) has clearly shown the great difficulty the 1239 Secretary of State would be placed in if one or two of the Judges differed from his colleagues. If Judges in such a case found themselves bound to affirm the conviction by law, the Secretary of State would find it difficult to excuse the man from the sentence, although there might be other grounds why he should not be executed. For these reasons I regret very much that the Government should have brought forward the Bill in this shape. I hope it will not be too late when this Bill goes to a Committee upstairs, if it does go before a Grand Committee, to consider the question whether it would not be much wiser to leave the appeal open to everyone in the first instance, but to safeguard it as to questions of fact by leaving it to the Judge who tried the case, and who, unless there were the strongest reasons for refusing an appeal, would undoubtedly grant it. In my opinion, that would be the safest course; and for that reason, and for that reason only, I shall record my vote against the second reading of the Bill.
§ MR. PARNELL
said, the right hon. Gentleman who had just sat down had noticed the fact that no speakers that evening, save those who were lawyers, had addressed the House upon this Bill; but it appeared to him, in reference to a measure of so technical a character, that Members who had not had the opportunity of being so well acquainted with all the details of the Criminal Law as the Gentlemen of the long robe might well feel a natural diffidence before trespassing into such a maze as the two Bills of the Government appeared to involve them in. He had ventured to rise to say a few words, in the hope that he might be able to put before the Government some practical considerations, which appeared to him to be of an important character, in reference to the measure, and to questions connected with the probable passing of the measure. The question of an appeal in criminal cases was one which he was surprised had not before been attempted to be dealt with by an English Government. It had, undoubtedly, been a very great anomaly in English jurisprudence that whereas in the most insignificant civil case they permitted the defendant or the appellant to go from one Court to another, and gave him a very much wider and fuller appeal than was given in this case, yet, in the case of prisoners who stood charged 1240 with criminal offences, and who had before them the probability of losing their lives or their liberty, or of having inflicted upon them the very severe punishment which the law of this country provided for persons who were found guilty of crimes, they had never thought it right to give to such persons that chance of establishing their innocence, and of showing that the Judge or jury had been mistaken as to the state of the case, which he assumed to be the right of every criminal after he had been found guilty. Now; he agreed with all that had been said with regard to the unfitness—of course, he did not refer to the present Home Secretary any more than to any other Home Secretary, but to the official who usually held the Office of Home Secretary—he agreed with all that had been said as to the unfitness of the Home Secretary to act as the only Court of Criminal Appeal provided by the judicial practice of the country at present. In the first place, the Gentleman who held that post was always a politician; and he thought that it was of the utmost importance that a question of a judicial character, and more especially of a criminal character, should not be allowed to fall within the cognizance and decision of persons of political leanings and opinions. But, if that argument held good in regard to England, it held good in a much greater degree in regard to Ireland. Under the Irish system, the Lord Lieutenant of that country occupied the place which was occupied by the English Homo Secretary in the decision of these cases; and the Lord Lieutenant had not even had the judicial training which the Home Secretary of England almost always had to enable him to decide such questions with some prospect of arriving at the truth. On the contrary, the Lord Lieutenant was generally a Peer, by no means well fitted by previous training, and by habits and ideas, for the judicial and impartial decision of the very important questions which would have to be decided from time to time in a country like Ireland. He was, therefore, exceedingly glad that the Government had at last undertaken the consideration of this question of the establishment of a Court of Criminal Appeal; and he was exceedingly sorry that they had not before now had an opportunity of submitting to such a tribunal some serious and grave cases 1241 which had occurred in the judicial history of Ireland. He would ask the Government whether, in view of the fact that they had introduced this Bill, and thereby declared their belief that it was right that convicted criminals should have the privilege of submitting to the higher tribunal of Judges questions as to their guilt or innocence; whether they would proceed to execute men who might be found guilty hereafter while the consideration of Parliament was being devoted to this Bill; or whether, until this Bill had received the final judgment of Parliament, they would not suspend the execution of persons who might be unfortunately found guilty in Ireland of capital offences, in order that they might have a chance which the Government declared, by the introduction of this Bill, all convicted criminals ought to have in Ireland, as well as in England, of establishing their innocence? There was also another question. He observed, although the Criminal Code Bill provided greater facilities for bringing alleged criminals to trial and punishment, and making it more easy in every way for the Crown, as the Public Prosecutor, to act against such persons—and especially added new offences to be punished under the provisions of the Bill—he had observed that, although the Bill was retrospective in its character, it was not retrospective in this respect, since it provided that the person convicted must give notice of his appeal within seven days after the judgment had been passed. He thought it was an extraordinary anomaly that although there might be some prisoners who might have been convicted a month ago, or who might be convicted next month before this Bill could be passed into law, yet, even if it were possible for these persons to be able to prove their innocence just as well and just as speedily as persons convicted after the Bill had passed into law, by the absence of any provision of a retrospective character in the measure, they deprived such innocent persons of the right of proving their innocence. They had had remarkable cases in the history of the English Courts of Criminal Judicature where persons had been sentenced to long terms of penal servitude who had actually served out many years of their punishment, and who yet, at last, succeeded in demonstrating their innocence 1242 so undisputably to the Home Secretary that he had granted their release, and paid them compensation for their sufferings from the Public Exchequer. Surely it would only be fair, right, and proper—and he did not wish to lay any undue stress on any matter which pertained more strictly to the domain of the Committee stage—but surely it was only right and proper, in considering a subject of this important character, to give due weight to the position of those persons who might have been convicted, and who might have been able to prove their innocence before the tribunal which it was proposed to establish. In his conscience he believed that it would be possible to prove that there were, at the present moment, in the Irish prisons, persons convicted of Whiteboy offences, and sentenced to long terms of penal servitude, who were as innocent of the offences imputed to them as any Member of that House. When he was in Kilmainham Gaol, a young man came to him on one occasion—it was after the first Court of Winter Assizes had been held, at which so many convictions had been obtained—and, drawing his attention to the conviction of two men who had just been sentenced to a considerable term of penal servitude, he said—"These men were not guilty of that offence, because I was the man who did it." He added—"One of the men is very like me, and it is probably a case of mistaken identity." He (Mr. Parnell) was not in a position to make use of the information given to him, because the judgment of the Court was final, and there was no appellate tribunal to which the case could have been submitted; but if it were possible to go back upon it now, and to bring it before the Court which this Bill proposed to establish, he believed, in his conscience and in his soul, that it was possible for the innocence of these men, who were suffering now this long term of imprisonment for an offence they were not guilty of, and of which they had not the slightest cognizance, to be completely established, and the unfortunate men would be relieved from the terrible sufferings which a long term of penal servitude must, undoubtedly, inflict on those who had the misfortune to suffer it. He thought it was a very great pity that this Bill was to be made part of the larger Bill which had yet to 1243 come under the consideration of the House. The Bill which established a Court of Criminal Appeal was one which appeared to commend itself very much to both sides of the House. In point of fact, although Notice of objection had been placed upon the Paper declaring that the Bill ought to be read a second time on that day six months, it was a matter of extreme doubt whether the Gentlemen who supported that objection would go the length of supporting it in the Division Lobby. He had listened to most of the discussion which had taken place that evening, and it seemed to him that everybody on both sides of the House was in favour of some one or other of the main provisions of the measure. It would be a great pity, therefore, if by including with it some Bill of a larger scope, anything were to happen, owing to the difficulty of getting through the Business of the House in the way in which the House was now fettered, and owing to the nature of the circumstances of the transaction—it would be a great pity indeed if anything should happen to a measure so thoroughly approved of by almost everybody in the House, and if it were not to receive the definite opinion of Parliament and the sanction of the Crown. He did not propose to enter into points of detail at any length, because, in all probability, full opportunity would be afforded for doing so before the Grand Committee, who had to take charge of the Bill; but he noticed that although in capital cases they proposed to suspend the execution of the punishment pending the judgment of the Court of Appeal, of course for good and obvious reasons, yet, in other cases, they did not propose to suspend the infliction of the punishment. Thus persons might be condemned to penal servitude, and might, in all probability, have to undergo some portions of that penal servitude, who might be able to establish their innocence. Should they, in the end, succeed in doing so, it would not be until after they had served some six or twelve months of the worst portion of their punishment, because every person knew that the first part of a sentence of penal servitude, including nine months of solitary confinement, was the worst portion of the punishment which a convict had to undergo. Therefore, he took it that under the Bill as it stood a person sentenced to penal servitude would 1244 have to serve out, perhaps, some nine or twelve months of the most severe portion of his punishment before the Court of Appeal could have any opportunity of coming to a decision upon his case. He thought it was only reasonable, under these circumstances, to extend the provision which the Bill contained with regard to the suspension of punishment in capital cases to the suspension of punishment in all cases, so that they might not run the risk, while they fulfilled the condition of keeping a person in safe custody, of punishing a person for a crime of which he might be able to prove his entire innocence. He could only say that he looked upon this measure as a stop in advance, and as supplying a very greatly needed want in the Judicature of this country. If he were disposed to suggest any radical alteration in the measure as it now stood, it would be that persons convicted of offences in Ireland should be permitted to appeal to the English Court of Appeal and not be compelled to go before the Irish Judges.
§ Question put.
§ The House divided:—Ayes 132: Noes 78: Majority 54.—(Div. List No. 46.)
§ Main Question put, and agreed to.
§ Bill road a second time.
§ Motion made, and Question proposed, "That the Bill be committed to the Standing Committee on Law and Courts of Justice, and Legal Procedure."—(Mr. Attorney General.)
§ MR. T. P. O'CONNOR
said, although he had voted for the second reading of the Bill, he was bound to confess he had done so with considerable scruple with regard to some matters of detail which it contained. Now, with reference to the last Motion of the Attorney General, that, the Bill be committed to a Standing Committee, he would point out that the right hon. Gentleman had made no statement whatever when he proposed it—he had not offered to the House any reasons why the Bill should be so referred. He thought that the hon. and learned Gentleman, by abstaining from offering any reasons, made an assumption which he (Mr. T. P. O'Connor) believed the House would take the very earliest opportunity of repudiating—namely, that the reference of a Bill to a 1245 Standing Committee was to be taken as a matter of course. He felt, if that course were to be taken in future, nothing could more justify the apprehension felt on those Benches that the institution of Grand Committees would take away the sense of responsibility which the House had hitherto possessed, and ought always to retain, with regard to every measure introduced. But if the objection of Irish Members on those Benches to the Bill being referred to the Grand Committee without comment was great, it was largely increased by the constitution of the Committee itself. There was the very strongest objection on the part of his hon. Friends and himself, not only with regard to the Committee generally, but with regard to its constitution in particular, to which the fact that the hon. Member for Galway (Mr. Mitchell Henry) was included amongst the Members contributed in a considerable degree. He therefore offered his protest against the reference of the Bill to the Standing Committee, partly on account of the composition of the Committee, and partly to show that the reference of Bills to similar Committees in future would not be treated on those Benches as a matter of course.
§ MR. EDWARD CLARKE
said, he did not, of course, object to the Bill being referred to the Standing Committee on Law; but it would be seen by the Order Paper that the next Order of the Day was the Criminal Procedure Bill, which it was proposed to refer to the same Committee, the Government also giving the Committee power to incorporate the two Bills. Now, that seemed to him, for several reasons, an unwise course to take. The Criminal Procedure Bill contained 134 clauses, which must occupy a large amount of the time of the Committee, and it was just possible that the Bill might not be disposed of in the course of the present Session. The Bill which had just been read a second time, however, contained but eight clauses, which referred to questions of appeal alone. If the Criminal Procedure Bill were referred to the Committee, it would be in the power of the Government to propose fresh clauses to the former Bill; and even if the latter Bill were to fall through, they would still have their Bill on Criminal Appeal, which could be easily dealt with in Committee of the Whole House. 1246 He submitted that the most practical way of dealing with the question would be to treat the Criminal Appeal Bill in the same way as the Bankruptcy Bill was treated a few days ago—that was to say, not to refer it to the Standing Committee at present; and then, if the Criminal Procedure Bill did not come to anything, it could be dealt with in Committee of the Whole House.
§ MR. PARNELL
said, he was glad the lion, and learned Gentleman had pointed out the practical inconvenience which would result from the Criminal Appeal Bill remaining in abeyance until the second reading of the Criminal Procedure Bill had been taken. He thought that, if the Bill were referred to a Grand Committee, such Committee should have power to go on with the provisions of the measure, and that they should not be obliged to wait until the subsequent Motion in the name of the Attorney General, relating to the Criminal Code Bill, had been passed; otherwise the Grand Committee would have to lose the time which would probably elapse before the second reading of that measure. The Order might possibly not be reached for several days, as the Government had not command of the time of the House until next Thursday. He did not know when it was proposed that the first Sitting of the Committee to which the Bills were to be referred would take place; but surely, from the point of view of despatch in regard to Public Business, it was desirable that the Grand Committee should be allowed to get to work at once, and that it should not be hampered by the necessity of delaying until the House had decided that the Criminal Code Bill should be read a second time.
§ SIR R. ASSHETON CROSS
rose to Order. He asked whether, inasmuch as some of the provisions of the Bill cast an expense upon the Exchequer, it was not necessary that the Bill should pass through the Committee of the Whole House?
§ MR. SPEAKER
If the Bill involves a question of money, it would, no doubt, be necessary that it should be so committed.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
said, he was unable to assent to the proposal of the hon. and learned Member for Plymouth (Mr. E. Clarke). He would, however, propose 1247 that the Grand Committee should meet to consider this Bill for the first time on Thursday, the 12th of April. By that time, probably, the Criminal Code Bill would have been read a second time, so that the two measures, he hoped, would be ready for consideration at the same date.
§ MR. RAIKES
said, he ventured to call the attention of the House to the inconvenience likely to be caused by the course about to be taken by the hon. and learned Gentleman the Attorney General with regard to this Bill as distinguished from the course taken by the President of the Board of Trade, a few days ago, in the case of the Bankruptcy Bill. The Government were, no doubt, anxious to get these Bills into Committee; but, having regard to the express terms of the Standing Order passed last Session, which regulated the admission of Bills to Standing Committees, he wished to point out that if this was to be done as a matter of course, and as a mere perfunctory proceeding, the House would be deprived of that discretion as to the details of measures which it had hitherto possessed in regard to every Bill remitted to the Committee of the Whole House. Whatever might be thought of the propriety or necessity of submitting Bills to the Committee of the Whole House, there could be no doubt that the House should be afforded that opportunity of considering the details of a Bill before it was parted with by the House and sent to a Committee upstairs. It was, of course. for the House to consider whether it would sanction the sending of Bills, without any examination of their details, to the Standing Committees, merely as a sort of consequential proceeding after the second reading. He did not wish to offer any vexatious opposition to that course, if the House was desirous of adopting it; but he thought the House should remember that it was parting with a most important stage, and losing one of those opportunities of which it had always availed itself. This mode of procedure would be also adopted under circumstances of peculiar disadvantage, because the House was about to send the Bill to a tribunal which was not the House, and that under circumstances in which he thought they ought to take especial care to investigate the details, and to 1248 make use of every opportunity of offering instruction or advice to the Committee. They were, however, sending the Bill without a word of warning to the Committee—a perfectly crude body—and thereby relieving themselves of all responsibility with regard to a very important measure, at a time when it was certainly desirable that its details should receive consideration, not merely from Members of the Committee, but at the hands of the House at large.
§ MR. W. H. SMITH
said, he would venture to point out that the Bill did actually bring up a new charge on the people, and that it was necessary that the payment out of the Consolidated Fund should be authorized by the Committee of the Whole House.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
begged to thank the right hon. Gentleman for the suggestion made, and would, of course, take care that the proper course was followed with regard to the Bill.
§ Question put, and agreed to.
§ Bill committed to the Standing Committee on Law and Courts of Justice, and Legal Procedure.
§ Ordered, That the Committee do sit and proceed on Thursday 12th April, at Twelve of the clock.