§ Bill, as amended, considered.
§ MR. FRASER-MACKINTOSH (Invernessshire)In the absence of my hon. Friend the Member for the College Division of Glasgow (Dr. Cameron) I beg to move the Amendment standing in his name.
§ MR. SPEAKERIt is not competent to move a clause standing in the name of another hon. Member.
§ MR. HUNTER (Aberdeen, N.)I beg to move that the Debate be now adjourned.
§ MR. SPEAKERThe hon. Member's clause has been reached in his absence; but perhaps the House will now allow it to be moved.
§ DR. CAMERON (Glasgow, College)The reasons in favour of the clause which I rise to move were explained on going into Committee on the Bill. At present, the position of an untried prisoner in Scotland is much harder than it is in this country, and it is to remove in some degree the distinction that I propose the clause standing in my name. One of the witnesses who came before the Royal Commission was the right hon. and learned Gentleman the present Lord Advocate (Mr. J. H. A. Macdonald), and the right hon. and learned Gentleman gave the strongest evidence in favour of a 594 change in the law such as is now proposed. The right hon. and learned Gentleman at the last stage of the Bill, however, argued against my proposal; but it seemed to me that in his argument he only showed that, like Hudibras, he could "on every hand confute, change hands, and still confute." I am bound to say that the arguments which he used on the Front Bench are quite different from those used by him before the Royal Commission. Every objection was urged when the question was before the Royal Commission, against the proposal which he made, that prisoners should have access to their agents and other assistance of the kind; but the right hon. and learned Gentleman at the time met every one of those arguments with the most perfect success. I ask the right hon. and learned Gentleman to carry out what were then, and what I believe are still, his opinions on this matter. The right hon. and learned Gentleman now says that he must be guided by public opinion, and that this is not ripe for the change which I propose in the law. But I deny that altogether. I say that public opinion is as ripe with reference to this proposal as it ever was for any Bill ever brought before the House of Commons. The right hon. and learned Gentleman is carrying out his opinion on the question of procedure reform in Scotland, on which he is perfectly competent to pronounce an opinion, and I ask him to carry out in favour of prisoners and in the interests of justice another alteration of the law, the justice of which he has himself defended and himself acknowledged. Now, the right hon. and learned Gentleman proposed when the Bill was last before the House to introduce a clause giving untried prisoners in Scotland under Statute the right which they possess under the present rules; but I suppose he has found it difficult to embody in a clause provisions such as he spoke of. It was on hearing that proposal that I did not move this clause in Committee, and it is because the right hon. and learned Gentleman has not put down his Amendment that I move my clause on the Report stage. As a matter of fact, it carries out, very much better than the clause referred to, the opinions expressed by the right hon. and learned Gentleman before the Royal Commission; it carries out literally what he proposed. The right hon. and 595 learned Gentleman argued in favour of the principle before the Royal Commission, and he said that there was no reason why the prisoner should not have at his elbow legal assistance at the time of emitting his declaration. I remind the House that in Scotland a prisoner may be arrested and kept in prison for a week before committed, during the whole of which time he may be refused access to his friends and legal adviser, and that he would be subject to an examination the result of which can be adduced against him to prove his guilt, but which cannot be used in his favour if it contains anything to his advantage. The clause which I propose has for its object to remedy these hardships, and I now propose that it be inserted in the Bill.
§ New Clause,—
§ (Prisoners before committal to be allowed access to law agents.)
§
Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest to obtain the advice and assistance of any properly qualified law agent, whom he may employ, and such law agent shall also be entitled to be present, when such accused person is being examined by, or is emitting any declaration, before the Sheriff, or other magistrate,"—(Dr. Cameron,)
—brought up, and read the first time.
§ Question proposed, "That the said Clause be now read a second time."
MR. A. R. D. ELLIOTT (Roxburgh)I rise to say a few words in support of the Amendment of my hon. Friend the Member for the College Division of Glasgow (Dr. Cameron). I have always thought that the Scotch procedure, although satisfactory to the Scotch people, is extremely hard upon the prisoner, as between the arrest and the committal the accused person has no opportunity of consulting his legal adviser. I think that it would be considered intolerable in England that such a state of things should exist. The English law assumes a man to be innocent until he is proved to be guilty, and I cannot understand why that view should not also be taken in Scotland. In addition to what has been said by my hon. Friend, I should like to point out that, when evidence was taken before the Royal Commission, a Scotch Judge gave it as his opinion that it was unfair in itself, though required by the ends of justice, to deny an accused per- 596 son access to his friends or law agent until he has been before the magistrate. In that opinion the other Judges agreed. I do not want to weary the House at this hour with further arguments in support of the contention that, in the interests of right and justice, a person when once arrested should be allowed to consult his friends and legal adviser. I think that words ought to be inserted to include advocates as well as law agents. As I have said, our procedure is much harder in this respect than it is in England and Ireland, and I do not think that the ends of justice require that such inequalities should exist.
§ THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)My hon. Friend the Member for the College Division of Glasgow (Dr. Cameron) seems to have more confidence in my judgment when I was a young man than he has now. I can assure him that the Royal Commissioners, who had before them those very able and telling arguments, to which my hon. Friend has referred, were totally unconvinced by them and absolutely refused to accept them. I was then a very young man; but am now not quite so confident in my opinion as I was at that time. If I believed that public opinion was with us I should be in favour of this clause; but I would call the attention of my hon. Friend to this, that I have proposed to give the prisoner the power of using the declaration as evidence of the statement he made when first charged with the offence, which to an innocent person will be a most valuable thing, and which he could but have if the statement were made by the advice of the law agent. I think my hon. Friend can very well recognize that, if this Amendment be passed at all, it cannot be passed in the form in which it stands. I shall be extremely moderate in my opposition to the clause, holding the views which I do on the subject; and if my hon. Friend presses the Amendment, I, for one, must feel that I cannot properly resist his proposal. I hope he will recognize that, in accepting the clause, there will be need on my part to take care, by the addition of words, that there shall be no difficulty about it elsewhere.
§ MR. CHANCE (Kilkenny, S.)I merely intervene to tell the hon. Member (Dr. Cameron) that the Representa- 597 tives of Irish constituencies had several Amendments on the Paper to carry out this principle in the Coercion Bill for Ireland. Our endeavours were, however, defeated, and we have now in the Irish Coercion Bill a principle which this House will not tolerate with reference to Scotland.
§ MR. ASHER (Elgin, &c.)I think my right hon. and learned Friend the Lord Advocate has exercised a wise discretion in practically assenting to this clause, though I believe he underestimates the amount of feeling in Scotland on the subject, because I have no doubt the general opinion is that it is somewhat hard for a prisoner to be excluded so long from professional advice as is the case under the present system in Scotland. The present rule was originally intended in the interest of the prisoner. The declaration which is taken from the prisoner has undoubtedly been regarded as a privilege to him. What happens is that the prisoner is taken before the magistrate and duly warned that he is not under any obligation to answer questions, and that if he does answer his statement may be used against him. Of course, the statement may be of advantage to the prisoner by enabling the Public Prosecutor to see if there has been a mistake in the charge, and where that is the case bringing about the discharge of the prisoner without further inquiry. That, I think, undoubtedly constitutes an advantage to the prisoner; but on the other hand, I am bound to say that it is a great hardship for him to be excluded from professional advice for so long a period as obtains under the present system. I think the advantage the prisoner will derive from having professional advice is greater than that which he derives under the present system, and therefore I trust the right hon. and learned Gentleman will allow the clause to be added to the Bill.
§ MR. CALDWELL (Glasgow, St. Rollox)Under the present system the prisoner may be seven days in prison, and be committed to trial before he can receive advice from the law agent. I would, therefore, point out to the right hon. and learned Lord Advocate that in framing an addition to this clause it would be useful also to confirm to the prisoner the right of giving bail, because the object of the seven days' 598 imprisonment before he can see his law agent was to give to the prosecution ample time to discover the facts of the case.
§ Question put, and agreed to.
§ Clause read a second time, and added to the Bill.
§ DR. CAMERON (Glasgow, College),who had given Notice of the following Clause:—
(Bail to be competent before committal for trial.)Any person accused of a crime which is by law bailable shall be entitled immediately upon his apprehension to apply to the court, by whose warrant he has been arrested, for and obtain liberation on his finding caution in common form to appear at any diet or diets which the court may fix for taking his declaration, and also for his appearing and answering to any criminal charge which may be made against him: Provided always, That due notice shall be given to the accused and his cautioner at the domicile for citation, as set forth on the bail bond on which he is liberated, of all diets appointed by the court either for taking the declaration of the accused or for the trial of the charge which may be made against him;said: The next clause which I propose for the acceptance of the Committee has for its object to allow the prisoner the right of being bailed before he is committed to trial. At the present time a prisoner may be kept for seven days in gaol, and during which time, and until he has been committed for trial, he cannot be bailed. Now, it appears to me that, before there is such evidence as will justify his committal, he should be at least in as good a position as he is placed in by the law if a sufficient amount of evidence is given against him to justify his committal for trial. The right hon. and learned Lord Advocate says he intends to deal with the whole question of bail in a short measure. I will not deny that the law of Scotland on the subject of bail is such as demands a revision; but such as it is it confers important rights on prisoners. Bail in Scotland is not a matter at the option of the magistrate; it is a convenience which the prisoner is entitled to demand of right, and the rates of bail are fixed so as to meet the condition of men belonging to various classes of society. Now, Sir, it may be said that the subject of bail requires revision, and that this is not a time to extend the privilege to uncommitted prisoners. I cannot admit that argument. It appears to me that 599 whatever the state of the Law of Bail in Scotland is, its condition is such that it has been allowed to go on for many years past without complaint; and it appears to me that uncommitted prisoners should enjoy at least as many safeguards for their liberty and convenience as prisoners who have been committed. I simply ask this House to place uncommitted prisoners in the matter of bail in the same position as committed prisoners, and that when the right hon. and learned Gentleman the Lord Advocate comes to effect a general revision of the law on the subject, he will place the Law of Bail in Scotland in a position satisfactory to himself. When he does so, the law will be equally satisfactory in the case of uncommitted and committed prisoners. We are told that a prisoner getting out upon bail will make it his business to destroy evidence which may be brought against him, if it is possible; but I would point out that any prisoner who gets out on bail may do that. There can be no more difficulty in compelling a prisoner who has been admitted to bail to re-appear for his examination than there can be to compel a prisoner to come up for trial. Without elaborating the subject at this hour of the night, I must say I can see no sound reason, in fact, quite the contrary, why an uncommitted prisoner in the matter of bail should be in a worse position than one who has been committed. I therefore beg to move this new clause: "Bail to be competent before committal for trial."
§ Clause (Bail to be competent before committal for trial,)—(Dr. Cameron,) brought up, and read the first time.
§ Question proposed, "That the said Clause be read a second time."
§ THE LORD ADVOCATE (Mr. J. H A. MACDONALD) (Edinburgh and St. Andrew's Universities)If the hon. Gentleman would consent to add these words—"Provided always, That the Court shall be entitled in its discretion to refuse bail until the person accused has been committed for trial," I should have no objection to the clause. I would remind the hon. Member that in this country magistrates frequently refuse bail on representation being made by the prosecutor. It is done, of course, to prevent evidence being destroyed, or witnesses being got out of the way. 600 Such a course obviously is calculated to defeat the ends of justice altogether.
§ DR. CAMERONI understand that what the right hon. and learned Gentleman says is the practice in England; therefore I will accept his proposal.
§ MR. CHANCE (Kilkenny, S.)I am sorry to intervene in this matter; but I wish to point out that in this country, in preliminary proceedings for misdemeanour, the magistrates have no right to detain persons in custody when represented by counsel or solicitor if application is made for bail. I understand that the statement of the law by the right hon. and learned Lord Advocate is that a man is absolutely of right entitled to bail on committal for such offences as misdemeanour, but is not entitled to it before his guilt has been primâ facie admitted by the Bench of Magistrates. I hope this Amendment will not be admitted without having a clear statement as to what is the law of England and Ireland on this subject.
§ Question put, and agreed to.
§ MR. J. H. A. MACDONALDI now move my Amendment.
§
Amendment proposed,
To add at the end of the proposed new Clause— "Provided always that the Court shall he entitled in its discretion to refuse bail until a person accused has been committed for trial."—(Mr. J. H. A. Macdonald.)
§ Question proposed, "That those words be there added."
§ DR. CAMERONThere seems to be some difference of opinion as to what is the law of England in the matter. Perhaps the right hon. and learned Attorney General (Sir Richard Webster) will give some information upon the point.
§ THE SOLICITOR GENERAL (Sir EDWARD CLARKE) (Plymouth)I understand the law of this country to be, that if a man is arrested and brought before the magistrates, they may decline to accept bail, if they choose.
§ MR. CHANCEIf he is charged with misdemeanour?
§ SIR EDWARD CLARKEYes.
§ MR. CHANCEWhen he is committed for trial for misdemeanour, he is entitled to have bail.
§ Question put, and agreed to.
§ Clause, as amended, agreed to, and added to the Bill.
601§ DR. CAMERON (Glasgow, College)The next Amendment I have upon the Paper I do not intend to move, namely—
At the trial of any person accused of any crime aggravated by such person having been previously convicted of a crime which may competently be libelled as an aggravation, it shall not be competent for the prosecutor to prove such previous conviction until the jury shall have returned a verdict convicting the accused of the crime or crimes with which he is charged, but upon such verdict being returned, the prosecutor shall then be entitled to put in, and, if necessary, prove, the conviction or convictions libelled by way of aggravation.
§ Clause 3 (Procedure on resignation, death, or removal of Lord Advocate).
§ THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)I beg to move in page 2, lines 28 and 29, to leave out "appoint his deputies without having first taken the oaths of office," and insert—
Take the oaths of office before any Secretary of State or any Lord Commissioner of Justiciary.
§ Amendment agreed to.
§ Clause 15 ("Money" to include coin, bank notes, &c, &c).
§ MR. CALDWELL (Glasgow, St. Rollox)I beg to move in page 5, line 4, to leave out "post office orders or postal orders." The Amendment refers to that part of the clause dealing with money or bank notes which may be mentioned in the indictment. An addition was made to the Bill in Committee of these words which I propose to leave out. It seems to me that it would hardly be a proper thing to describe as money post office orders or postal orders. It seems to me that where a man is indicted for having stolen a certain amount of money, current coin only should be implied, and that if post office orders or postal orders have been the subject of theft the fact should be expressly stated. I do not think we should introduce under the direct term money articles which are not properly known as money, and which, if stolen, the prosecutor ought specifically to describe.
§ Amendment proposed, in page 5, line 4, leave out "post office orders and postal orders."—(Mr. Caldwell.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause,"
602§ THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)I am not particularly wedded to these words in the clause. I put them in the other day on the suggestion of an hon. Member, and it is now suggested by another hon. Member that they should be struck out. No doubt, in a strict way of speaking, post office orders and postal orders are not correctly described as money, but they might be very easily understood as coming under that description.
§ DR. CAMERON (Glasgow, College)These words were put in by me at the suggestion of one of the legal societies. It seemed to me that it would be a convenience to have these words inserted; but it is not a matter of very great importance. I do not, however, see that a prisoner would gain anything by the adoption of this Amendment.
§ Question put, and negatived.
§ On the Motion of Mr. CALDWELL, Amendment made, page 5, line 7, by leaving out "post office orders and postal orders."
§ Clause 17 (Petitions for warrants and arrest thereon).
§ THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)As consequent upon leaving out Clause 11, I beg to move in page 5, line 21, to leave out "fifteen and sixteen," and insert, "and fifteen."
§ Amendment proposed, in page 5, line 21, to leave out the words "fifteen and sixteen," and insert the words "and fifteen."—(Mr. J. H. A. Macdonald.)
§ Question, "That the words 'fifteen and sixteen' stand part of the Clause," put, and negatived.
§ Question, "That the words 'and fifteen' be there inserted," put, and agreed to.
§ MR. CALDWELL (Glasgow, St. Rollox)I beg to move, in line 22 of this clause, to leave out from "and" to the end of the clause. I understand that the Lord Advocate accepts this Amendment.
§ THE LORD ADVOCATEAgreed.
§ Amendment proposed, in page 5, line 22, to leave out from "and" to the end of Clause."—(Mr. Caldwell.)
603§ Question, "That the words proposed to be left out stand part of the Clause," put, and negatived.
§ Clause 18 (Declarations and previous convictions).
§ MR. CALDWELL (Glasgow, St. Bollox)I beg to move the Amendment which stands next on the Paper in my name. I understand that the Lord Advocate objects to the first part of the proposal—namely, to the words—
Where a judicial declaration has been omitted by an accused, it shall be competent for the accused to found upon that declaration as part of his defence.I will leave those words out, and will move to insert the following after the word "used" in line 35—Previous convictions against an accused shall not he laid before the jury, nor shall reference he made thereto in presence of the jury before the verdict is returned; but nothing herein contained shall prevent the Public Prosecutor from laying before the jury evidence of such previous convictions where by the existing law, it is competent to lead evidence of such previous convictions in support of the substantive crime charged.In Scotland it is competent where a prisoner is charged with any crime, to prove before the jury that the prisoner has been previously convicted of the same or a similar crime. The effect of that in Scotland, of course, is simply this—that a prisoner's character may be known to be bad by the jury, so far as one of the most important allegations against him is concerned. If a prisoner has once been convicted of a crime, it is almost impossible for him to escape if he is again charged, whatever the character of the offence. We think that the practice in England is more correct, and that crime should be proved upon its merits without reference to the character of the prisoner. It is a fact that those cases of conviction which I have observed where the evidence has been particularly ineffective have been almost invariably cases where the person charged was a reputed thief. If the Amendment is accepted by the right hon. and learned Lord Advocate I will say no more.
§ THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)I have no objection to this; but I should prefer that it should not be put in here, but that it should be inserted before Clause 64.
§ MR. CALDWELLThen I will move it before Clause 64.
§ Amendment, by leave, withdrawn.
§ MR. CALDWELL (Glasgow, St. Rollox)I now move to leave out Clause 30.
§ Clause 30 (Procedure where accused desires to plead guilty).
§ Amendment proposed, in page 9, to leave out Clause 30.—(Mr. Caldwell)
§ Question proposed, "That the Clause proposed to be left out stand part of the Bill."
§ THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)The object of this clause is to meet the case of certain prisoners who know that they have no defence. They may be prepared for a verdict of guilty, and they know that if that verdict is not taken, they may be kept for three or four weeks whilst a case is being prepared against them— they know that that period will not be taken into account in the sentence which they will receive. The object of the clause will be effected on the application of the prisoner's counsel. I hope the hon. Gentleman will withdraw his Amendment.
§ Question put, and agreed to.
§ Clause 33 (Certain objections only competent at first diet).
§ MR. CALDWELL (Glasgow, St. Rollox)I beg to move the addition of the following Proviso:—
But no unreasonable delay shall be allowed to take place between the time of the accused pleading guilty, and his being brought up for sentence.
§
Amendment proposed,
In page 10, atend, add,—" But no unreasonable delay shall be allowed to take place between the time of the accused pleading guilty and his being brought up for sentence."—(Mr. Caldwell.)
§ Question proposed, "That those words be there inserted."
§ THE LORD ADVOCATEAgreed.
§ Question proposed, "That those words be there inserted," put, and agreed to.
§ Clause 34 (Supplementary lists of witnesses).
§ MR. CALDWELL (Glasgow, St. Rollox)The next Amendment is one 605 which I shall feel bound to insist upon. It is to leave out Clause 34 in page 10. According to the law of Scotland at present, when an indictment is served, the Crown is bound to serve with it a list of the witnesses. I move to omit this clause, and I think the right hon. and learned Lord Advocate will consent.
§ Question, "That Clause 34 stand part of the Bill," put, and negatived.
§ Clause 36 (Written notice of special defence).
§
On the Motion of The LORD ADVOCATE, the following Amendment made:—In page 11, line 28, after "diet" insert—
Or unless cause be shown to the satisfaction of the Court for a special defence, not having been lodged till a later day, which must in any case not be more than two clear days before the second diet."—(Mr. J. H. A. Macdonald.)
§ Clause 39 (Notice of peremptory challenge six days before trial).
§ MR. FRASER-MACKINTOSH (Inverness-shire)I beg to move to leave out the clause. This is an important Amendment. The object of the clause is to do away with the right of challenging juries at bar—a custom which has existed in Scotland from time immemorial—and I cannot understand why the right hon. and learned Lord Advocate desires to curtail the privileges of the accused. In place of giving my own opinion upon this matter, I refer the Committee to a report of the Faculty of Advocates, who may be taken as the defenders of all that is right and proper in legal matters in Scotland, whether civil or criminal, in which they hold that the challenge of jurors should still continue to remain as at present.
§ Amendment proposed, in page 12, to leave out Clause 39.—(Mr. Mackintosh.)
§ Question proposed "That Clause 39 stand part of the Bill."
§ THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)The solo object of this clause is to save a large number of jurymen from being unnecessarily brought from long distances as they sometimes are—it is to relieve them by enabling them to escape being called. 606 It may be objected to by some people, but there are a great many of our country people by whom it will be received with a great deal of satisfaction. The only body that has said a word against it is a body the Members of which are not liable to serve on juries.
§ MR. ASHER (Elgin &c.)I think there is some misapprehension on the part of many persons as to the effect of this clause. It is described as a clause that would take away the right of challenge, but that is not the case. It will require the prisoner's agent to intimate his objection to a particular juror a short time before the trial, and the result will be that that particular juror will not be required to attend. The right of challenge in Scotland, as everyone knows, is a right that is rarely exercised. On those occasions, when in consequence of popular excitement, or for other causes, it would be desirable to exercise the right there would be no difficulty whatever in getting information as to who are on the panel and intimating the challenge in the manner proposed by this clause. Desiring to see the right of challenge preserved to a prisoner, I cannot share the feelings of some persons upon this matter.
§ MR. CALDWELL (Glasgow, St, Rollox)I can quite understand how Lord Advocates, present, past, or future, may wish to have the procedure as to challenge curtailed as much as possible, for they are in the position of prosecutors. The hon. Member for Inverness-shire (Mr. Fraser-Mackintosh) has drawn attention to a report of the Faculty of Advocates in which they unanimously disapprove of the curtailment of the right of challenge in the case of prisoners. At present, the prisoner may challenge the jury when the jury are being put into the box. That is the present law, but also according to the present law he is bound to give notice nine days before the trial takes place. It is a matter of importance whether the prisoner should exercise the right nine days before the day of trial or not. In addition to the view of the Faculty of Advocates I may say that the Sheriffs have petitioned in connection with this matter, and they of course are the local justices in Scotland. They say that the periods are too short, and that the present system of challenge should be retained, because in some particular 607 instances the accused might otherwise suffer. Here you have on the one hand a certain section asking for a clause which shall limit the rights of prisoners in the case of challenge, and, on the other hand, you have the Faculty of Advocates, who are an unbiased body, and who are in favour of retaining the existing law. Here you have independent authorities saying "leave the challenge as at present," and I would point out to the Committee that, according to the law as it now stands, the prisoner may challenge the jury on the day of the trial if he has given notice nine days before the trial, but that under the present Bill there must be a notice of six days. That is a most important difference.
§ DR. CAMERON (Glasgow, College)When this clause came up before the right hon. and learned Lord Advocate made a concession by reducing the number of days for which notice of the challenge was necessary. He reduced it by three days. That would very much mitigate the inconvenience. There is no doubt a great inconvenience to jurors in being summoned when they are not wanted. That must be apparent; but, at the same time, I would not minimize the advantage of the right of challenge to a prisoner. In one important case in the West of Scotland the right of challenge was exercised to my knowledge with very great advantage recently. It is not always possible for the prisoner to exercise the right of challenge within a short period when he is brought up from the country, because he may not in a very short period be able to arrange for his defence. It is true that a prisoner in Scotland is entitled to a gratuitous defence, but a defence of that kind is often of a very perfunctory character, and in many cases the defence of a prisoner is not arranged until the last moment. If my hon. Friend goes to a Division on this Amendment I should certainly support him.
§ MR. DONALD CRAWFORD (Lanark, N.E.)When this clause was in Committee I advocated the restriction of the period of six days to three, and that having been ultimately agreed to I should certainly have been disposed to adhere to the arrangement then made. Since then, however, it has been strongly represented to me by people who are entitled to speak on the subject that we 608 really are taking away an important privilege from prisoners. As a matter of fact, the state of things is exactly as my hon. Friend the Member for the College Division of Glasgow (Dr. Cameron) has stated—that is to say, that the defence of a prisoner is frequently only arranged at the last moment. The prisoner may not have the advantage of legal advice until perhaps the very day of the trial, and I think that the experience of everyone who has any acquaintance either with civil or criminal trials is that the consideration whether a juror is to be challenged or not usually arise at the very last moment, and sometimes it may be a matter of very considerable consequence. For that reason I should be very glad if my right hon. and learned Friend would reconsider this point. I sympathize very much with him in his desire to diminish the burden at present imposed upon jurors, and I hope he will adhere to all the provisions in that direction. Still, however, I think we are taking away a valuable right, which at certain times might be of great consequence to a prisoner.
§ MR. ANDERSON (Elgin and Nairn)I am bound to say that I look upon every Amendment proposed—every Amendment of the Criminal Law—proposed by a Member of the Unionist Party with suspicion in view of the course they have taken in connection with the Irish Coercion Bill. But I am bound to say that to-night I find that two or three hon. Members of that distinguished Party have entirely turned over a new leaf and seem to be anxious to bring about a reform of criminal procedure in favour of the prisoner. I am very glad to see that that change has taken place, and I trust it will go on developing until these hon. Members become once more real Members of the Liberal Party. I am bound to say that when I see the attitude of hon. Members on the Front Opposition Bench I am also filled with suspicion, because I am told by an old Parliamentary hand that they are generally wrong. I have great respect for the opinion of the hon. and learned Gentleman the Member for the Elgin Burghs (Mr. Asher); but giving full weight to that respect whilst listening to his arguments, I must say I think the objections to this clause are so great that I cannot but wonder at anyone in this House having any doubt upon the 609 point. It is all very well for the right hon. and learned Lord Advocate to put the matter as a question of the convenience of jurors. That is not the question. The important question is the right of challenge, and anyone who has had experience of trials knows that very often the right is not exercised until the moment before the prisoner is put upon his trial. I tell the House that the proposal that the right of challenge is to be put on the footing of six days' notice by post to be sent by some agent six days before the trial is, to my mind, one of the most extraordinary things which have ever been proposed. And to say that this is a proper hour of the night at which to discuss such a question is to advance a proposition I do not agree with. This seems to me to be a most important question, involving as it does the right of challenge; and I hope the Committee will support the Amendment of the hon. Member for Inverness-shire (Mr. Fraser-Mackintosh). I am satisfied that if the clause is permitted to stand it will have an important effect in limiting the right of challenge.
§ MR. A. R. D. ELLIOT (Roxburgh)I would point out to the hon. Member who has just sat down that a good many of us have been trying to improve the criminal procedure in Scotland long before the hon. Member had a seat in this House. Hon. Members do not seem to observe that what we are dealing with is the right of peremptory challenge only. Everyone who reads the clause to the end will see that a prisoner has a right of challenge as before for cause shown, when persons come up to be balloted for on the jury. Hon. Gentlemen who have spoken represent the views of large places like Glasgow; but I can say from my own knowledge that in small places the burden thrown on jurymen is considerable, and is very much complained of. We, who are interested in keeping up the popularity of jury trials without unnecessary injustice to the accused, must see that no greater burden is imposed upon jurors than is necessary. I therefore take the right hon. and learned Lord Advocate's view of the matter.
§ THE FIRST LORD OF THE TREASURY (Mr. W. H. SMITH) (Strand, Westminster)I have no wish to intervene in the discussion of this measure; but there has been an understanding 610 entered into that the Truck Bill should be taken to-night, and as there is every probability of the question now before the House occupying a considerable amount of time, I am under the necessity of moving that the further consideration of the present measure be postponed. It would not be reasonable for us to postpone the Truck Bill after having entered into an understanding that it should be taken now. Are hon. Gentlemen prepared to come to a decision upon the matter now under discussion?
§ MR. T. P. O'CONNOR (Liverpool, Scotland)I would give the right hon. Gentleman warning that some of us have a very strong feeling upon this matter, and that we wish to discuss it.
§ MR. W. H. SMITHThen I move the adjournment of the debate.
§ Motion made, and Question proposed, "That the Debate be now adjourned."— (Mr. W. H. Smith.)
§ DR. CAMERON (Glasgow, College)It would be much more convenient if we could divide upon the clause before going on with the Truck Bill.
§ MR. W. H. SMITHSo far as I am concerned, I should be very ready to agree to a Division being taken upon the point now under discussion; but hon. Gentlemen below the Gangway declare that they want to discuss the point further.
§ DR. CLARK (Caithness)Some of us certainly desire to discuss the question further, particularly those of us who are interested in the Northern Counties of Scotland.
§ Question put, and agreed to.
§ Debate adjourned till Thursday.