HC Deb 07 May 1888 vol 325 cc1564-91

(Mr. Attorney General, Mr. Secretary Matthews, Mr. Solicitor General.)


Order for Committee road.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."

MR. T. M. HEALY (Longford, N)

said, he had the following Notice on the Paper:— On Motion for going into Committee on Criminal Evidence Bill to move, That it be an Instruction to the Committee that the Committee have power to insert Amendments giving prisoners tried before Courts of Summary Jurisdiction in Ireland the same right of appeal as exists in England. He understood, however, from Mr. Speaker that it would not be in Order for him to move that Amendment. He would, therefore, propose an Instruction more limited in its character.


said, he must point out to the hon. and learned Member that Notice of such Amendment would be necessary. He had intimated to the hon. and learned Gentleman, as early as it was in his power, that the Notice on the Paper was not in Order, the reason being that the subject of the Notice was not germane to the Law of Evidence which was dealt with by the Bill.


said, he was quite satisfied with what Mr. Speaker had ruled; but it was right that he should say that it was only that evening that he had received the right hon. Gentleman's intimation, and that the Instruction he proposed to move had been on the Paper for 10 days past.


said, that there had been no probability of the Bill coming on, and he had given the hon. and learned Gentleman Notice that afternoon, in order to cause him as little inconvenience as possible.

Question put, and agreed to.

Bill considered in Committee.

(In the Committee.)

Clause 1 (Persons charged with offence and wife or husband to be competent as witnesses).


The first Amendment on the Paper is as follows:—"In page 1, line 5, after 1,' insert—' This Act shall apply to England only.'" This seems to me to be in effect a new clause, and, therefore, must come in at the end.


I would beg to submit to you, Sir, that, to put himself in Order, the hon. Member for the St. Rollox Division of Glasgow, instead of moving these words as a new clause, should move to insert, before the word "where," the words "in England."


The hon. Gentleman must put an Amendment down to that effect.

MR. CALDWELL (Glasgow, St. Rollox)

said, he would move the Amendment in the form proposed. This was a Bill as to the necessity for which, in the case of England, they were all agreed; but he wished to point out that a measure of this nature was not required either in Ireland or in Scotland. It could hardly be pretended that the Bill dealt with the question of crime in the three countries, for there was nothing in it which touched anything which was criminal in one country and not criminal in either of the others. It was a measure which dealt entirely with the question of legal procedure, and, dealing as it did with the question of legal procedure, it must be pointed out that notoriously the legal and criminal procedure differed in England, Ireland, and Scotland. In fact, as regarded the question of criminal procedure, there was a great diversity between the three countries. In the case of Scotland, for instance, they had a Public Prosecutor, and they also had a preliminary inquiry. Now, what was the form of the preliminary inquiry? When a prisoner was taken up by the criminal authorities he was taken before the magistrates, and when before the magistrates he had an opportunity of stating his case, and making what was termed a declaration. If the accused was an innocent person, he had an opportunity of stating before the magistrates circumstances to show his innocence, and the facts stated by him could be investigated by the Public Prosecutor. The chances were, if a prisoner's statement was correct, and he was entirely innocent of the charge brought against him, no prosecution followed at all. The Committee would see that, in the case of an innocent person in Scotland, he had an opportunity at present practically of stating his case, and of showing that he was innocent before the magistrates; and it was of more importance to him that he should be able to avoid a prosecution altogether than that he should be indicted before a Court, and put to the necessity of being heard in his own defence, and of employing counsel and bringing forward witnesses. What was the contention of the Government in this Bill? It was that this power of enabling a person to give evidence on his own behalf was in the interest of the accused. When the Government came forward to make a change in the law of the land, the onus rested on them of showing that that change was necessary. Let them take the case of Scotland. Would the Lord Advocate tell them of a single instance in which an accused person had been convicted for want of ability to give evidence on his own behalf? That, he thought, lay at the root of this change of procedure. Would the Lord Advocate, or any lawyer from Scotland, bring forward one single instance? If such a case did occur, and an accused person was found guilty by a jury, the Prerogative of Mercy could step in, and would be exercised, so that there would be nothing suffered in consequence of the absence of the power on the part of the accused to give evidence. So far as he was aware, no such case as that which he asked the Lord Advocate to point out had ever occurred—no innocent person ever having been found guilty in Scotland, owing to there being no power for the accused to give evidence on his own behalf, or to give evidence through his wife; and, therefore, he argued that there was no necessity for the proposed change. As he said, if the necessity was shown in the interest of the accused, it was not necessary for the Government to insist on it strongly, because they always possessed the Prerogative of the Crown, and could always go into the question of whether or not a person was guilty even after the trial had taken place. What was the objection they took to a Criminal Court of Appeal? It was based upon this—that it was required to proceed upon evidence, and upon legal evidence; but what was the case so far as the Prerogative of the Crown was concerned? Why, they could go there beyond what was strictly legal evidence. They could go into facts and circumstances which were not evidence, and examine into matters which might or might not have been brought up at the trial; and, therefore, if this Bill was conceived in the interest of the accused, it was not necessary that he should have power to give evidence, as they had power, under the Prerogative of the Crown, to give it far more efficaciously than ho could at a trial. Another point was this. Supposing that a prisoner did not give the evidence in a case, if this Bill passed the fact of his not doing so would be adversely commented upon. Of course, it would be said, on behalf of the Crown, that they would not be likely to comment on the failure of an accused person to give evidence; but past experience showed a different state of things in the case of Scotland. In Scotland a prisoner was not bound to make any declaration, but might say, at the preliminary inquiry—"I decline to answer any question;" and it was notorious that such declinature not to answer any question, while in no way technically making up the evidence in a case, yet had a bearing on the minds of a jury. The Public Prosecutor read the prisoner's declaration, which simply stated—"The prisoner declines to answer any question." This was done for the purpose of prejudicing the prisoner's case before the eyes of the jury. It was done every day in Scotland. They saw the declaration brought up for no other purpose than that, and it would be the same thing under this Bill, if it became law. If a prisoner were not put into the box, the prosecutor would, with doubt, refer to the circumstance as showing in some way evidence of the man's guilt. It was a matter of common wisdom that, in a criminal case, a man should not be counsel in his own case. Much more was it true that, in such cases, a man should not be a witness in his own case.


I must point out to the hon. Gentleman that he is arguing against the Bill altogether, and not in support of his particular Amendment.


said, he was pointing out that in the case of Scotland the procedure was so very different from the procedure in England, on account of the opportunity the prisoner had of making a declaration at the preliminary inquiry, that there was not the same necessity in the case of Scotland for a prisoner to be examined as a witness as there was in England. Then, with regard to the application of the Bill to Ireland, there was strong reason why Ireland should be exempted from the operation of the measure. He (Mr. Caldwell) was one of those who had voted most regularly for the Crimes Bill. The Government had come to Parliament with the statement that it was necessary to strengthen their powers in order to obtain convictions in that country. No allegation was made last Session as to innocent persons being convicted. The sole case of the Government was that it was impossible to obtain convictions there; and it was upon that theory and upon that footing that he, along with many others, had given the most liberal powers to the Government for the purpose of carrying out the law in Ireland. But how would this Bill affect that country? The contention of the Government was this—that the Bill was in the interests of accused persons; and it was a remarkable circumstance to reflect upon that the Government found it no longer necessary to propose measures for obtaining convictions, but were now greatly exercising themselves to force through a measure for preventing innocent people from being convicted. And when had this new state of things arisen? Why, only since the Crimes Act was passed. There was no contention of this nature last Session, and now, for the first time, owing to the passing of the Crimes Act, the Government had been forced to bring in a measure with a view to mitigating the effect of past legislation, and of preventing innocent people from being convicted. Now, whether this Bill was or was not required in Ireland, it was obvious that it would be looked at with great jealousy. Who was the Public Prosecutor in Ireland? Why, the Public Prosecutor was the Govern- ment. Who were the defenders of accused parties in Ireland? Why, hon. Gentlemen who sat on that the Opposition side of the House. If that were so, and if this Bill really was, as the Government said it was, conceived entirely in the interest of accused persons, who were the best judges of what was to the interest of the accused? Was it the Government, who were the prosecutors, or was it those who were accustomed to defend the prisoners? He ventured to say that the public at large would look upon this question, whether or not the measure was or was not in the interest of the accused, as a matter falling more within the province of hon. Gentlemen sitting on the Opposition side of the House than of the Government, and it would be extremely difficult for the Government to convince the country that this Bill would be in the interest of the accused. He would not detain the House any longer upon this point than simply to point out that, owing to the difference of procedure in the three countries—and this was simply a matter of procedure—the law of Scotland being different from the law of England, and the law of Ireland also differing from the laws of the two other countries, no case whatever had been made out why such a Bill should be pressed in the interest of accused persons in the two countries he referred to.

Amendment proposed, in page 1, line 5, before the first word "where," to insert the words "in England."—(Mr. Caldwell.)

Question proposed, "That those words be there inserted,"

MR. J. B. BALFOUR (Clackmannan)

said, that the effect of the proposal of the hon. Gentleman who had just sat down would be to limit the application of this Bill exclusively to England, and, of course, this would result in both Scotland and Ireland being excluded from its operations. Accordingly, in sustaining his Amendment, the hon. Gentleman had dealt with the cases of Scotland and Ireland separately, and properly so, if he (Mr. Balfour) might venture to say so. Now, as to the case of Ireland, he (Mr. Balfour) did not propose to say anything, because he was not sufficiently familiar with Irish criminal procedure, or with the other considerations which would enter into the question of whether the Bill should be applied to Ireland, to have any title to intervene in such discussion; and certainly upon any Amendment directed to raising the question of Ireland, separately and substantively, he should be largely influenced by the considerations his hon. Friend (Mr. Caldwell) had referred to—that was to say, the prevalent opinion and wish of those best acquainted with Ireland. But he thought he did know something about criminal procedure in Scotland, and, taking the case of that country by itself, he had no hesitation in saying that he thought it would be a great misfortune if the Bill were not extended to Scotland. This was by no means a new question. They had had to consider so far back, he thought, as 1883, in the Grand Committee on Law, of which he had had the honour of being a Member, and so far as his memory went, there was but one opinion at that time as to the propriety of extending the Bill to Scotland. And he must say that the provision of this Bill, which would remove the disabilities which now prevent certain classes of persons from giving evidence, appeared to him to be merely the natural termination of that long series of beneficial amendments in the Law of Evidence by which one restriction after another had been done away with, and by which the evidence of one class of persons after another had been made competent, leaving it to the tribunal, be it Jury or be it Judge, that had to decide the matter, as to what weight was to to be given to the evidence. He had been for many years of opinion that this abolition of restrictions should not stop at those cases which it had already reached, but that as to persons accused, and their husbands and wives, in the case of Scotland as in the case of England, there should be a power to give evidence, because, as he understood the Bill, it was not intended to render such persons compellable but only competent to give evidence. Therefore, the proposal of the Bill was simply to remove the disability to give evidence, but it would lay no compulsion on the parties to do so. His hon. Friend (Mr. Caldwell), in what he said as to Scotland, argued thus. He contended this Bill was unnecessary for Scotland, because the objects which it sought to accomplish were already sufficiently at- tained there. Well, if its ends were already served, that could not be an objection to the principle of the Bill. If the hon. Member was right in that, it was to be inferred that, through their experience or prescience in Scotland, they had acknowledged the justice of this proposal. But he was afraid his hon. Friend, whilst right so far in regard to what he had said as to Scotland, had not seen that the whole case which the Bill was directed to provide for had not already been met in Scotland. The hon. Member said, and said truly, that one of the first steps, when a person was arrested on a charge of crime, was to give him an opportunity of making what was called a declaration. Now, that was, or ought to be, an opportunity afforded to him to answer questions, or make a statement, if he chose to speak in reply to an invitation to say anything he desired to say. It was intimated to him that if he desired to say anything he could do so, and that the Public Prosecutor would take cognizance of what he said, and act accordingly. His hon. Friend was right in acknowledging that the system of public prosecutions in Scotland was a great safeguard to prisoners, because all who had had to do with the administration of the Criminal Law in Scotland were well aware that if an accused person was innocent, and told his story at once, before the magistrates, showing where he was at the time of the alleged occurrence, and accounting for any suspicious circumstances, what the Public Prosecutor did was to investigate the statement; and if he was satisfied of its truth, the accused person was at once released without trial If, on the other hand, the investigation did not bear out the statement, the case might be sent for trial. But the hon. Member had overlooked this, that while the Crown might put in and use as evidence against the prisoner the declaration he had made, the accused could not use the declaration as evidence in his own favour.

MR. CALDWELL (interrupting)

said that the law had been altered upon that point.


said, he was, perhaps, a little antiquated in this matter, but what he had stated used to be the practice, and, he believed that still, even if under the Act of last year the accused could insist upon having his declaration read, it was not in law evidence in his favour. But that would by no means cover the whole ground, because that declaration would only be a man's statement not tested by examination or cross-examination. It was not evidence in any sense. It would only go, So far as the interest of the prisoner was concerned, to give rise to this fair observation on the part of the prisoner's counsel, that the story submitted to the jury at the trial was the same as that which the prisoner had originally told. Those acquainted with the conduct of criminal inquiries in Scotland must know that evidence was constantly given of many things of which probably neither those who examined the accused nor the accused himself had the least idea when he was first apprehended. How was it possible that an innocent man could know what evidence was to be brought against him? Very likely the Public Prosecutor had not his evidence complete at the time when the declaration was taken, and it was clear to everyone familiar with the conduct of such inquiries, that the Scotch system of declarations, although a most excellent and admirable one, and a great defence of innocence, could by no means subserve all the purposes which this Bill would attain. It did not do so as to the accused person himself, and still less did it do so in regard to the husband or wife of the accused person—they had no opportunity of making a declaration. Supposing a man was accused of a crime and had been at home at the time, and there was no one who knew anything of his doings or his whereabouts but his wife. If that man's lips were sealed, and the lips of his wife were sealed, there were no means of proving the man's innocence, and that short and simple consideration showed that the Scotch system was by no means complete. What an innocent man would desire was that he should have an opportunity of meeting the case against him by his own testimony when the whole case of the prosecution had been disclosed. His hon. Friend had, however, said that it was impossible to adhere to the system of declarations if the accused was made a competent witness, but he did not see why it should not be easy to preserve the system of declarations along with the proposals made by the Bill. He thought it should be pre- served. He (Mr. Balfour) would be sorry to see the system of declarations abolished, and if he might venture to make au observation, he would say that an accused person, in addition to the ordinary warning which he received now to the effect that everything he might say would be used against him, should also be informed he would have an opportunity of giving evidence at a later stage—at the trial—if he preferred to do so. If the man chose to make his statement at the preliminary examination let him do so, and in that way the present system would be preserved. Then his hon. Friend made reference to the Prerogative of Mercy as being sufficient protection for an innocent person. He (Mr. Balfour) could only say this, that if he had the misfortune to fall under suspicion and to be convicted by reason of the law forbidding him, or those connected with him, from giving evidence, he should consider it a very poor consolation if the Home Office or the Secretary of State for Scotland exercised the Prerogative of Mercy in his behalf and granted him a pardon. A man before he could be pardoned in that way, must, of necessity, have been found guilty by a jury, and the fact of being found guilty by a jury was a ban which should not be lightly placed upon a man by anyone. His hon. Friend's third point as to Scotland was that the matter might be met by a Court of Criminal Appeal. Well, in the first place, they had not in Scotland any Court of Criminal Appeal in a proper sense of the word. They had certain procedure by which questions of law which arose at the trial could subsequently be dealt with, but they had no appeal on questions of fact, so that this would not meet the case. But, even supposing they had in Scotland a Court of Criminal Appeal, as he had said in regard to the Prerogative of Mercy, there, again, the prisoner must first have undergone conviction. He did not know whether the hon. Gentleman contemplated that the accused should have the opportunity of tendering his own evidence before the Court of Criminal Appeal when he could not do so before the Court in which he had been originally tried, but, if not, the Appellate Court must proceed upon the evidence on which the man had originally been convicted, and so he would be none the better for his ap- peal. The object of the Bill was to afford to the person assumed to be innocent an opportunity of giving his evidence and submitting to cross-examination on it. As regarded Scotland, his hon. Friend (Mr. Caldwell) had stated no valid argument in favour of his Amendment. There was no sentiment whatever in Scotland against the application of this Bill to that country. The question had been before the country for five or six years, and he had never heard a single word against the general principle of the Bill. He would deprecate exceedingly this Bill becoming law in England and not in Scotland. Why should an accused person not have the same opportunity in Scotland as in England of giving his evidence, subject, of course, to cross-examination? There were cases in which a man fell under suspicion from circumstances which no one could explain but himself. He need not go into the particular kind of cases he had in mind, but everyone knew there were charges which were made almost exclusively with reference to occasions when no one but the accuser and the accused were present. Under the Criminal Law Amendment Act of 1885, which particularly dealt with cases of this kind, the accused person was allowed to give evidence.


I must point out to the right hon. and learned Gentleman that he is now entering into the Bill at large.


said, he would not pursue the point, though the Amendment was to exclude Scotland from the Bill as a whole. He had put before the Committee the reasons why it seemed to him Scotland should not be excluded from the Bill. What he had said had application purely to Scotland, and he put it to his hon. Friend (Mr. Caldwell), whether it would not be well for him so to modify his Amendment as to afford an opportunity of dealing separately with the cases of Scotland and Ireland?


said, the right hon. and learned Gentleman (Mr. J. B. Balfour) had disposed completely of half of the contention of the hon. Gentleman who moved the Amendment (Mr. Caldwell). He had for ever dissipated the idea that it would be for the advantage of Scotland that Scotland should be excluded from the operation of the Bill, and the very few words he (Mr. A. J. Balfour) should address to the Committee related to the question of Ireland, which was left untouched by the right hon. and learned Gentleman. He (Mr. A. J. Balfour) should not require to deal with the subject at such length as the right hon. and learned Gentleman did, because in truth his hon. Friend who moved the Amendment dealt very shortly with Ireland, and, as he (Mr. A. J. Balfour) thought, not in a very convincing strain. The hon. Gentleman (Mr. Caldwell) alluded to the Act of last year, and stated, and stated very truly, that last year he had been an earnest and systematic supporter of the policy of the Government in passing the Crimes Act. But, he said, he never heard when the Crimes Act was being passed, of the necessity of protecting innocent people whom it was intended to protect by the provisions of this Bill. The hon. Gentleman was perfectly right. Nothing was said on that subject. But the hon. Gentleman must be perfectly aware that last year they were not dealing with the whole question of the criminal jurisprudence in Ireland; they were bringing forward a limited measure to deal with limited difficulty. They thought that the measure they brought forward dealt adequately with that; but they did not profess—they never had professed—to cover the whole ground, and they had never excluded themselves from bringing forward, or supporting, on a subsequent occasion, any other measure which would deal with another branch of the same subject. The hon. Gentleman appeared to forget that this question was not now raised for the first time. It was discussed at great length in 1882 and 1883, and it was discussed at great length in a Grand Committee—it was thoroughly threshed out in a Grand Committee—[Mr. T. M. HEALY: No!]—and in that Grand Committee there was no question of excluding Ireland. [Mr. T. M. HEALY: Yes, there was.] The hon. and learned Gentleman had the right of reply. He (Mr. A. J. Balfour) was informed by those who served on the Grand Committee that it never was suggested, when the merits of this question were being discussed, that either Ireland or Scotland should be excluded from the benefits the measure was intended to confer on the population of this country. The right hon. and learned Gentleman (Mr. J. B. Balfour) said that this measure was for the interests of innocent people, and he developed the argument by which he proved that at considerable length. He (Mr. A. J. Balfour) defied any man to find a single fragment of argument adduced by the right hon. and learned Gentleman which did not apply to Ireland with as great force as it applied to Scotland. There were differences, there were great differences, between the criminal jurisprudence of Scotland and the criminal jurisprudence of England; there were no great differences between the criminal jurisprudence of Ireland and the criminal jurisprudence of England. On the contrary, the laws were substantially identical. But however divergent they might be—if they were as divergent as the criminal jurisprudence of Scotland and of England, it would nevertheless remain true, as the right hon. and learned Gentleman had pointed out with overwhelming force, that the interests of the innocent man, who could get no other testimony of his innocence than of himself or his wife, were safeguarded by the provisions of this Bill, and could be safeguarded by no other provision whatever. Were they seriously to believe that no innocent man accused of the crime alluded to by the right hon. and learned Gentleman opposite existed in Ireland? Could it be seriously contended there was that difference between Ireland on the one hand and England and Scotland on the other? If there were such accused persons in Ireland, was Parliament to deliberately and with malice aforethought refuse to them the protection they were about to accord to accused persons in England and Scotland? He could not believe the House would deliberately accept a position so paradoxical and absurd as that. Every person in Ireland conversant with the question at issue was as strongly of opinion that this law should be extended to Ireland as the right hon. and learned Gentleman (Mr. J. B. Balfour) was that it should be extended to Scotland. The Bar were almost unanimous on the point. There was the hon. and learned Gentleman the Member for Longford (Mr. T. M. Healy) who held another opinion; but even he would not deny that the great weight of opinion in Ireland, at the Bar and amongst all classes of the population competent to judge of the question and conversant with its merits, was distinctly in favour of extending this law to Ireland. [Mr. T. M. HEALY: Nobody but Crown prosecutors.] He did not think the House would hesitate to reject that part of the Amendment which referred to Ireland.

MR. BERNARD COLERIDGE (Sheffield, Attercliffe)

presumed that the object of the Bill was the conviction of the guilty and the acquittal of the innocent, and they who had some acquaintance with the Criminal Law in England were of opinion that the provisions of the Bill were admirably adapted to produce that effect in England. Anyone who had the smallest acquaintance with the working of the Criminal Law Amendment Act in England must know it was idle for any person who was accused under that Act to hope for an acquittal, unless he presented himself for examination and cross-examination in the box; indeed, a learned Judge was reported to have said the other day, in sentencing a man under the Criminal Law Amendment Act, that he had committed a very grave and heinous crime, and had added ten-fold to his crime by not going into the box to deny it on oath. The only reason why the power in question was not used in England was, that there was no such thing as an unfair prosecution, or ought not to be. If there was an unfair prosecution, it met with its due reward in the sympathies which were excited on behalf of the prisoner in the minds of the jury when they found the man was being unfairly prosecuted. But then they were asked to apply this to the sister country of Ireland. If English jurisprudence and the criminal laws, and the execution of them, were the same in the two countries, the arguments which were applicable to England would be equally applicable to Ireland. But what they on the opposition side of the House feared was that the object of extending this Act to Ireland was vindictive prosecutions under the Crimes Act. They would soon ascertain whether that was so or not, if the Chief Secretary for Ireland would answer a question he in- tended to put to him. The right hon. Gentleman would disarm much of the support which this Amendment was receiving on the Opposition side of the House, if he would accept the Amendment which appeared a little bit lower down on the Paper in the name of the hon. and learned Member for North Longford (Mr. T. M. Healy), and which was to the effect that this Act should not apply to persons who were indicted under the Crimes Act of last year. If the Chief Secretary would accept that proposal, they would know that the Government were only now going on in that course of dealing out equal laws for the three countries, which they failed to do in the Act of last year, and which they professed to have so much at heart in all their legislation. If the right hon. Gentleman would not accept that Amendment, they would then know that the object of extending the provisions of this Bill to the sister country of Ireland was not the obtaining the acquittal of innocent people, but to obtain convictions, on the ground that persons would not go into the box, and thus subject themselves to cross-examination with all the licence granted to the Crown Prosecutors by the tribunals in that country, which would defeat the ends of fair and equal justice.

SIR GEORGE CAMPBELL (Kirkcaldy, &c.)

said, he quite agreed with the late Lord Advocate (Mr. J. B. Balfour) that the Bill might be made very beneficial to Scotland; but he feared that in its present form it was scarcely applicable to Scotland. He did not see that, by the Bill in its present shape, the Scotch declaration was saved.


The Bill leaves the existing law as to declaration wholly untouched.


remarked that in that case he was prepared to accept the application of the Bill to Scotland. He thought, however, that its form should be altered, because the Bill at present seemed inconsistent with the Scotch declaration, which was not the evidence of a witness, but the judicial examination of the accused.

MR. DARLING (Deptford)

said, it was very well observed by the hon. and learned Gentleman the Member for the Attercliffe Division of Sheffield (Mr. Coleridge) that the object of the Criminal Law should be the acquittal of the innocent and the conviction of the guilty. Why did no one object that this Bill should apply to England and to Scotland? Because in England and in Scotland alike, they were all agreed as to the advantage not only of acquitting the innocent, but of convicting the guilty. Why was it that anyone objected to the Bill being applied to Ireland? Because there was a feeling in that country that it was to the advantage of some persons to acquit the guilty. It had been argued by those who would exempt Ireland from the operation of this Bill as though the only person made competent as a witness was the accused person himself. It seemed to be forgotten that there was a provision that an accused's wife should be a competent witness, or that in case the wife should be accused the husband should be a competent witness. It must happen in many cases—one would think under the Crimes Act—if anybody who was innocent was ever accused under that Act, which he very much doubted. [Opposition cheers.] He was glad that sentiment met with so much assent. One would think that if innocent people ever were accused under that Act, those who had their advantage at heart—and the hon. and learned Member (Mr.Coleridge) said it was expedient to have people examined in order that the innocent should be acquitted—one would think that if the accused were innocent of the charge made against them, their friends would wish that the accused themselves and their wives should be competent witnesses. Surely, it would be to the advantage of an accused person to go into the witness-box if he was innocent. Why should hon. Members not face the facts in the House of Commons just as they would face them in any other place? Why should they not admit that the reason why it was objected that this Bill should apply to Ireland was the fear that convictions might come from it, just as convictions might come from it in England and in Scotland; that whereas they in England and in Scotland did not mind seeing the guilty convicted, there were people in Ireland who had the greatest objection to seeing the guilty convicted at all? If hon. Members spoke what they thought and what they said outside the House, they would admit that that was the gist of the objection to the application of the Bill to Ireland. He was reminded of the case of Kirby, who was executed that morning. Kirby was charged under the Crimes Act, and he might, if this Bill had been law, have given evidence at the criminal investigation under the Crimes Act. [Mr. T. M. HEALY: So he did.] Did he? He might have given evidence then, and he might have also given evidence at his trial. If he gave evidence in the first instance, and could not give it in the second, was not that an injustice? He was anxious to remove that injustice. It was said that this Bill was only introduced because the Crimes Act was passed. That would only be an argument if the Bill applied to Ireland, and to Ireland alone; but it was notorious that for years there had been a demand on the part of England, and he believed on the part of Scotland—long before the Crimes Act was thought of for Ireland—there was a demand that prisoners and their wives should be allowed to give evidence. There were a great many people in this country who did not know that a prisoner could not give evidence, and whose moral sentiment was revolted when they learned that an accused could not give evidence. He (Mr. Darling) had heard a learned Judge of the Chancery Division attempting to demolish the argument for the prisoner, on the ground that if there was anything in it the prisoner would have been called. That learned Chancery Judge was now a Lord Justice. In consequence of his ignorance of the Criminal Law, perhaps, he was removed to the Court of Appeal. So common was the impression in this country that it was only right that prisoners should be allowed to give evidence, that even some of the Judges who did not practice in the Criminal Courts were unaware that criminals suffered under such a disadvantage. It was proposed to do for England what England had long demanded. It was proposed to do it for Scotland as well. England was perfectly willing. Scotland was perfectly willing. [Cries of "No, no!"] They had heard to-night that Scotland was perfectly willing; and why was not Ireland? The hon. and learned Gentleman (Mr. Coleridge) said he would agree to the Bill's application to Ireland if it were not to apply to cases under the Crimes Act. Why should a man charged under the Crimes Act be less competent to give evidence than a man charged under any other Act? But that was not the point. The point was, that it was more desirable in the eyes of some persons that a man charged under the Crimes Act should be acquitted than that men charged with offences under other Acts should be acquitted. He did not think there was any reason in that. The man who broke one law should stand in the same position as the man who broke another law. It was as expedient that a man who had broken one law should be convicted as that a man who had broken another law should be convicted, so long as he was convicted by legal process. And what fairer legal process could there be than that be was convicted because he had chosen to avail himself of the opportunity of saying what only he knew, and having said it, the jury—[Mr. T. M. HEALY: What jury?]—an Irish jury—had come to the conclusion that he was guilty? It was not as though there was any compulsion to give evidence. An accused person might get counsel to speak for him, if he liked. A prisoner need not give evidence, but he could give it if he chose. What hardship was there in that? It was not a tenderness for the law, but it was a fear of what prisoners would say, which made this proposal unacceptable to certain Representatives from Ireland.

MR. FLYNN (Cork, N.)

said, it was very possible the hon. and learned Gentleman (Mr. Darling) had a very large experience of Quarter Sessions, but it was painfully obvious he had no experience whatever of the administration of the Crimes Act in Ireland and of the scandals that had disgraced the administration of justice in certain Courts in Ireland. It had become the fashion in the House and the country for hon. Members opposite not alone to pretend to know more how certain Acts of Parliament and certain Bills would affect Ireland, but actually to lecture Members from Ireland who ventured to have an opinion as to how Acts would affect their country. The hon. and learned Gentleman had said the opinion of Scotland was in favour of this measure. It was a very singular thing that the hon. Gentleman who moved the Amendment (Mr. Caldwell) hailed from Scotland, and hailed, if not from the Metropolis, at any rate from the largest commercial centre of Scotland. The hon. and learned Gentleman made statements which certainly called for some remarks from that side of the House. The hon. and learned Member, in utter ignorance of the operations of the Crimes Act, proceeded, in the customary style of hon. Gentlemen opposite, to impute motives to hon. Members from Ireland. [Laughter.] The Chief Secretary for Ireland smiled at that. The right hon. Gentleman must be perfectly well aware that, with the rank and file of Members opposite, nothing was more fashionable, for want of solid argument, than to pad out their speeches with ill-concealed imputations. He could tell the hon. and learned Gentleman the Member for Deptford that they who came from Ireland and represented the Irish people had a much stronger and far more honest desire that it was the innocent alone who should suffer than he could have. [Laughter.] It was quite obvious that the omission of a word composed of three letters had caused the hilarity on the opposite Benches. It was perfectly evident that what he meant to say was that the Irish Members had as large and as honest a desire that it was the guilty and not the innocent should suffer as hon. Members opposite. He certainly thought that imputations of the character he had mentioned should be supported by arguments and facts, and not by mere quotations from the obscure pamphlets of I.L.P.U. The hon. and learned Gentleman said they would be glad of the acquittal of guilty parties. He flung that charge in the hon. and learned Gentleman's teeth. It was a grave charge, one which ought not to be thrown across the floor of the House. It was a charge for which no proof had been given, and for which no proof could possibly be given. The hon. and learned Gentleman said there was a demand for a Bill of this nature in England and Scotland. He (Mr. Flynn) was not competent to say whether there was a demand for the Bill in Scotland; but undoubtedly there seemed to be a difference of opinion amongst the Scottish Members as to whether the Bill ought to apply to Scotland. There were several hon. Members from Scotland who were not quite so anxious to welcome this measure for Scotland as the hon. and learned Gentleman seemed to think. But al- though he was not competent to speak for Scotland, he was perfectly competent to speak for Ireland, and he took issue with the Chief Secretary on the broad and unqualified statement he made, that everybody in Ireland competent to express an opinion upon the Bill were in favour of the measure. If the right hon. Gentleman would allow him (Mr. Flynn) to add two or three words to his statement, probably he would be prepared to agree with him. If the right hon. Gentleman had said that everybody he had met in or around Dublin Castle, there would be a great deal in what he said. The right hon. Gentleman ought, by this time, to be aware that there were other opinions besides those of the occupants of Dublin Castle worth listening to. In the City of Dublin and in the City of Cork there was the strongest possible objection to the operation of this measure being extended to Ireland. The right hon. Gentleman the Chief Secretary had said, in regard to the application of the Bill to Ireland, that the clauses of the Criminal Law Procedure Act only dealt with a limited difficulty; but he had altogether forgotten to remind the Committee that the Crimes Act had to last for ever and ever. If it were dangerous to apply the Crimes Act at all, and its application necessitated such a Bill as this, they should remember that its application was for ever and ever. The hon. and learned Member for the Attercliffe Division of Sheffield (Mr. Coleridge) had put forward a proposal which, if it met with acceptance on behalf of the Government, the Irish Members would be prepared to consider if they could not altogether withdraw opposition to it. But the right hon. Gentleman had shown no desire to accept the suggestion of the hon. and learned Gentleman. The right hon. Gentleman had not even referred to it, so far as he (Mr. Flynn) could remember. Now, that was a very important point, which touched the whole of their objections to the Bill. As regarded Ireland, the debate on the second reading was in the recollection of the House, and, therefore, he would not refer to that; but when the Bill was before introduced—he would not say whether it was the first time the subject was brought before them, because his memory did not serve him sufficiently well on the point—but somewhere about 12 months ago one of the strongest statements as affecting Ireland upon this subject was made by the Attorney General for Ireland, who said that if the Irish Members were willing to abate their opposition to the Bill, the Government would exclude Ireland from it. But had anything happened since? Yes; the Criminal Law Procedure Act had been applied to Ireland, and had been in operation since July last, and if the right hon. Gentleman opposite could on good faith make such a promise as he made to the Irish Members on the last occasion, to the effect that the measure should not be extended to Ireland if they withdrew their opposition, surely the case was very much stronger now, than when he spoke those words. The Irish had a distrust, and a well-founded distrust, of the Irish Resident Magistrates, and probably three-fourths or nine-tenths of the cases which would be affected by this Bill would come before those magistrates. The hon. and learned Member for Deptford (Mr. Darling) he (Mr. Flynn) had no doubt, though a Tory Member, notwithstanding he had acquired with fatal facility that eloquent sneer at everything Irish, or everything proposed by Irish Members, but if he wore in Ireland and knew how the Resident Magistrates would deal with cases that came before them, he would dread placing such powers as that contained in the Bill in their hands. The Irish people had a very strong objection to seeing powers such as those contained in this Bill entrusted to hands which were not fit to exercise them. Let the Committee try to realize to itself the position under which a defendant would be under this Bill before a Resident Magistrate. Not long ago a case came before Colonel Carew, and an argument taking place between himself and the solicitor for the defence, this gentleman had boldly declared that he represented the Crown in the case.


He was not acting magisterially.


The right hon. Gentleman the Chief Secretary for Ireland says he was not acting magisterially.


He was not acting as a Judge in the case.

An hon. MEMBER

Was he acting as a hangman?


said, he presumed Colonel Carew was acting as Judge, jury, and gallows. At any rate, Mr. Higgons, the representative of the defendants, had declared that Colonel Carew no more represented the Crown than he did, and that his, Colonel Carew's business was to hold the balance equally between the prisoner and the Crown. The right hon. Gentleman the Chief Secretary was sceptical as to Colonel Carew's acting magisterially, but he (Mr. Flynn) was not able to split hairs in the extraordinary manner in which the right hon. Gentleman was. This magistrate was acting as Crown Prosecutor, and as anything but a magistrate. Let the Committee imagine a prisoner brought before such tribunal with the provisions of this Bill in operation. The hon. and learned Gentleman said that if the prisoner did not come forward and give evidence in his own behalf, there was nothing more to be said about it. Surely, the hon. and learned Gentleman was not so unskilled a lawyer as not to know what would happen. The prosecuting counsel would use the fact as very strong evidence against him. Colonel Carew would, if he gave evidence, proceed to cross-examine him, just as they read that some Judges applied the thumb-screw to unfortunate defendants; if the Crown Counsel was not sufficiently searching in his questions, or if there were certain points which might tell against the man's innocence, a magistrate like Colonel Carew, whose salary depended on the right hon. Gentleman the Chief Secretary, would do everything in his power to supplement the case for the Crown. Irish Members on those Benches had the greatest possible objection to the extension of the Bill to Ireland. That objection was based upon knowledge of the facts and considerations of the greatest importance to their people, as well as the safe conduct of justice in Ireland. He trusted, therefore, that the Government would not persevere in their intention of applying the Bill to Ireland, which, although it seemed to secure the acquittal of the innocent, he feared would have there the contrary effect.

MR. R. T. REID (Dumfries, &c.)

said, that the way in which the Amendment stood was not altogether satisfactory to some Members who made a distinction between Scotland and Ireland. He wished, and many of his countrymen also wished, to see the principle of the Bill extended to Scotland, and for that purpose he desired to insert the words "and Scotland," in order that the question might be raised independently. A good deal had been said by the hon. and learned Member for Deptford (Mr. Darling), and the hon. Member for North Cork (Mr. Flynn) on the Amendment, into whose arguments he did not propose to enter. The Bill appeared to him to be eminently satisfactory and desirable in a country where justice is fairly and honestly administered, and as he knew that was the case in England and Scotland he desired to see it carried into effect in those parts of the Kingdom. But, as he did not believe that justice was fairly and honestly administered in Ireland, he did not wish to see the Bill extended to that country. To those who had been accustomed to live in an atmosphere of real justice, to hear the Judges impartially laying down the law, and counsel conducting prosecutions with fairness and a desire to do what is right in the interest of the prisoner as well as in the interest of the Crown, were shocked and disgusted when they read of the proceedings of some of the so-called Courts of Justice and the counsel who appeared before them.

Amendment proposed to the said proposed Amendment, to add after the word "England," the words "and Scotland."—(Mr. R. T. Reid.)

Question proposed, "That the words 'and Scotland' be added to the proposed Amendment."

MR. HUNTER (Aberdeen, N.)

said, he hoped his hon. and learned Friend the Member for Dumfries (Mr. R. T. Reid) would not press to have the words "and Scotland" in the Bill. The system in Scotland was altogether different from that which prevailed in England. In Scotland the first step was to examine the accused under circumstances which had become familiar to the people, and in his judgment there was no conceivable advantage in combining with that system that of allowing the prisoner to be examined as a witness on the trial. There were two alternative systems—they might have the Scotch system, or that proposed in the Bill, and if a prisoner was to be examined in secret under one, he did not see that there was any advantage at all in having him examined in public. He objected to it for that reason, unless the Scotch system were reconsidered altogether. At the present time a prisoner refusing to answer questions was not made the subject of remark by Judge or jury, but if he were allowed to be examined as a witness at the trial, it might be anticipated that what would happen would be that if anything like what might be called evidence by the prisoner was produced at the trial, and he did not think proper to go into the box to be examined, the Judge would draw the attention of the jury to the fact that the prisoner did not avail himself of that opportunity, and the jury would draw their own inference from the fact. That seemed a most unfair course of proceeding, and not calculated to promote the interests of justice, for it might and did happen that a prisoner had other reasons quite apart from the crime of which he was accused for not submitting to examination. He (Mr. Hunter) was not satisfied that any cause existed for the application of this change to Scotland. Certainly he had never heard from any quarter in Scotland any demand for the Bill, and in the total absence of any demand for a reform peculiarly suited to English law which had no examination of a prisoner at any stage of the proceedings, he did not see why it should be adopted in Scotland. The extension could be made at any time should it appear desirable, but he should vote against it at present.

THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)

said, he had not intended to address the Committee because the matter had been so clearly stated by his right hon. Friend the Member for Clackmannan (Mr. J. B. Balfour), but he could not agree with the hon. Member who had just spoken (Mr. Hunter) that there was any alternative whatever as between the judicial examination which took place in Scotch law and the prisoner presenting himself for examination in the witness-box. It would be seen at once that the cases in England and Scotland were practically the same. The difference was that the accused in England at the conclusion of the examination, and after all the witnesses had been examined, was asked if he wished to say anything or make any statement, and he was warned that any statement might be used as evidence against him, and could not be used in his favour, and he was also told that he was under no obligation to make any statement; while the difference in the Scotch procedure was that the prisoner was brought up for judicial examination before the magistrate before any inquiry was made. He was brought up immediately, and that was a great advantage to the prisoner if innocent. But, in point of fact, prisoners in both cases had the opportunity of making statements, both were warned that such statements might be used against them, and could not be used in their favour, and both were told they need not make statements unless they pleased. It was a great mistake to say that the Scotch judicial examination was an alternative to examination in Court as a witness for the distinct reason that the statement by the prisoner could not be allowed as evidence on behalf of the prisoner at all, whereas if he were examined as a witness his evidence would go with all the other evidence before the jury. He (Mr. J. H. A. Macdonald) could not agree with the hon. Member for the St. Rollox Division of Glasgow (Mr. Caldwell) that there was quite sufficient security in the exercise of the Royal Prerogative, and, therefore, the Bill need not apply to Scotland. Such reasoning would equally apply to England. But it was the last thing that an innocent prisoner desired, that he should be left to the ultimate chance of an inquiry by the Secretary of State for England or Scotland, in order that he might be pardoned—not cleared—from the crime of which he was accused. The Prerogative of Mercy was used for setting right what was admittedly a miscarriage of justice—but the object of the Bill was to prevent a miscarriage of justice—to consider anything which, laid before the Secretary of State, would lead to the exercise of the Prerogative. It was to meet cases that had happened, and no one desired it should become part of the ordinary operation of the law. It was said also that under the Scotch system, if a prisoner declined to make any statement, that was a circumstance the prosecutor referred to as one the jury were entitled to take into consideration. He had heard that tried, and as often he had heard the Judge give a distinct injunction to the jury that they were not entitled to take it into account. He was sure that it had now disappeared from the practice in prosecutions. It was also said that the opportunity given for the accused to make a statement was quite sufficient to take the place of the giving of evidence, but he thought it was forgotten in the first place that a much fuller examination would take place at the trial than could possibly be taken on the initial stage of the proceedings before the circumstances were known. The Bill met the difficulty now found arising from the accused not being entitled to examination. On another matter he had been personally appealed to, whether he knew of any case in which a prisoner was convicted but would have had a chance of escaping had he been able to give evidence.


said, that was not the point. He asked for a case in which an innocent prisoner was convicted owing to his legal inability to give evidence in the case.


said, that was practically the same thing in another form of words. Taking it as the hon. Member put it, he would say that he had known more than one such case. He would go further and say he had often had to defend prisoners with an anxious mind; but he would have had no anxiety whatever had he been able to put the accused in the witness box.


said, he quite agreed with the right hon. and learned Lord Advocate that it was a great defect of Scotch law that the preliminary examination could not be quoted on behalf of the prisoner as well as against him.


said, he did not say it was a defect. He said it would be unwise and unfair that the examination should be taken without a safeguard.


said, in his opinion it was a great defect and almost a scandal in Scotch administration that when a man was taken into custody he should at once be examined without any legal advice.


said, he might have legal advice.


But could the right hon. and learned Gentleman say how often it had been availed of? Certainly, the statement ought in all reason and justice to be used for as well as against the prisoner. But the right hon. and learned Lord Advocate had failed to understand the objection. Suppose a prisoner refused to make a declaration, but on his trial desired to tell his story and give his evidence, would he not be exposed to the irresistible observation—"That is a fine story, but why did you not tell it when you were first arrested?" In that sense, he contended, the two systems were inconsistent. If the right hon. and learned Lord Advocate was prepared to alter the Scotch system and make it to resemble the English system, that a prisoner should be examined at his trial only, there was no objection; but he saw a great objection to a system that subjected the accused to a double ordeal; in the first place, that which was still a private ordeal not necessarily implying the assistance of a legal adviser, and then if he did not use the opportunity of giving evidence again at the trial he would be open to inferences that would certainly be drawn from that refusal. If the Scotch and English systems were to be assimilated, let that be done; but why pile "Pelion upon Ossa?" Why have the double ordeal that needs must work unfairly to the accused?

MR. WADDY (Lincolnshire, Brigg)

said, he would suggest that really the difficulty in the case applied to the three countries. The point at which the Committee had arrived had reference to Scotland, and he feared it would be disorderly to argue the case of England and Ireland, and he would not do so further than to say that it was agreed that the proposed alteration was not for securing the conviction of the guilty so much as to secure the acquittal of the innocent, and it had been called a protection to the accused.


reminded the hon. and learned Member that he must speak to the Amendment "and Scotland."


said, he was only about to suggest an alteration by which the words "and Scotland" would become unnecessary; it could be met by a slight alteration in the Amendment.


Order, order!


resumed his seat.

MR. ESSLEMONT (Aberdeen, E.)

said, he desired to support the Amendment of his hon. and learned Friend the Member for Dumfries (Mr. R. T. Reid). It had been his duty for a period of 20 years to examine witnesses and to see witnesses examined before Criminal and other Courts, and he was bound to say that many cases occurred in which it would have been of very great advantage to the prisoner that the husband or wife should have been allowed to stand in the witness-box and give evidence in the case. He was bound to say also in regard to what had been said by his hon. Friend the Member for North Aberdeen (Mr. Hunter) and others, that he had found in many cases that prisoners considered that injustice was done to them because husband or wife was not allowed to give evidence one for the other. A good deal had been said about the declaration made by a prisoner when apprehended; but these declarations were made under very exceptional circumstances; the prisoner was in an excited state, and he was afraid that the Act was not administered as carefully as it might be. He attached great importance to prisoners being allowed to make their statement before Judge and jury, that the jury might hear the statement and cross-examination. The impression on the jury would be much more useful than that formed from the mere reading of a declaration. So far as his experience went, the Bill ought to apply to Scotland, and he should support the Amendment.


rose in his place, and claimed to move, "That the Question be now put."

Question put accordingly, "That the Question be now put."

The Committee divided:—Ayes 213; Noes 121: Majority 92.—(Div. List, No. 97.)

Question put accordingly, "That the words 'and Scotland' be added to the proposed Amendment."

The Committee divided:—Ayes 278; Noes 52: Majority 226.—(Div. List, No. 98.)

It being after Midnight, the Chairman left the Chair to report Progress; Committee to sit again upon Thursday.

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