COMMITTEE.

HC Deb 20 June 1890 vol 345 cc1595-603

Bill considered in Committee.

(In the Committee.)

Clauses 1 to 10 agreed to.

Clause 11.

(11.27.) MR. PICKERSGILL

I have to move an Amendment on this clause. The 1st sub-section imposes a penalty on anyone who obstructs a Revenue Officer in the execution of his duty. To that I have no objection. The 2nd sub-section, however, provides that if on the hearing it is proved that a defendant has unlawfully committed an assault, he may be convicted of the assault, though the charge contained in the information may have broken down. I object very strongly to that provision, because it appears to me to violate an elementary principle of justice, inasmuch as it enacts that a man who is charged with one offence may be found guilty of another. I object mainly in the interest of poor men who may happen to be defendants. The case of the rich man, who comes into Court attended and protected by a cloud of counsel, is different. It appears to me that under this section a poor man, knowing, of course, nothing of the law, might be convicted of an offence to which his attention had never been called during the hearing, and which he might have means of disproving. In justice to the Government I ought, perhaps, to say that the Bill was submitted to a Committee, on which there were three very eminent lawyers from this side of the House. They apparently have allowed this curious innovation upon criminal practice to pass unchallenged. The hon. and learned Member for North Longford (Mr. T. M. Healy) is one of those to whom I allude, and I am rather surprised that he allowed it to pass without challenge. It appears to me it is still more likely to produce injustice in Ireland than in England. Now, in the first place, I do not see why in a matter of criminal procedure an officer of a Government Department should be treated with special indulgence as compared with a private person, who, failing to secure one remedy, has to commence proceedings de novo. I do not see why there should be an exception for an official who has at command a lavish supply of the best professional advice. If an assault is committed, a conviction can be obtained under the 1st section of the clause, for it would by its nature be an obstruction if the officer was in execution of his duty. But if the officer was not in the execution of his duty, why should he be specially protected? I think it may lead to insolence and Jack-in-officeism not to be encouraged. There are precedents, it is said; and I admit that there may be in regard to indictable offences. For instance, ill the case of a man indicted for embezzlement, if it turn out that the act does not in law amount to embezzlement but is really larceny, then the defendant can be convicted of larceny. But I want to point out this, that, in the case of an indictable offence, it is some act in connection with and part Of the offence in its legal aspect; but under this section it may apply to some different act altogether which might be brought against the defendant, and he might be convicted of it. The words of the section run— If upon the hearing of the information it is proved that such person unlawfully committed an assault. Surely the hon. and learned Gentleman will agree that the words are very loose and slovenly. When? Upon whom? Under what circumstances? In what relation to the offence originally charged? Really, under these words, it appears to me, the defendant might be convicted if he committed an assault upon his wife long before. The hon. and learned Gentleman shakes his head, and I put an extreme case, but only to show how loose and slovenly is the language of the section. So far as words go, it would appear that if it could be shown a man had committed an assault long before then, under the words of the section, he might be convicted of that assault. Then the reds a difficulty to which I invite the attention of the Solicitor General. Summary jurisdiction in respect to common assault depends on the complaint made by, or on behalf, of the person aggrieved, and dismissal or conviction is a bar to all other proceedings for a similar cause. Now, I want to put a question to the hon. and learned Gentleman. Will a conviction for a common assault under this section be a similar bar, or will it not? Whichever answer the lion, and learned Gentleman gives will, I think, be unsatisfactory. It is a logical dilemma. If the Solicitor General replies "yes," then the person aggrieved is deprived of the option secured to him by the general law of a criminal or civil remedy: if "no," then the defendant is liable to be twice prosecuted for the same cause, contrary to the protection extended to persons under the general law, in cases of common assault. This is a fair illustration of the inconvenience of these casual incursions upon well-established principles of criminal justice. I understand that, before the Committee, it was urged that this subsection should be introduced in the interest of the defendant himself, and that is a plausible argument I desire for a moment to deal with. It was said acquittal does not absolutely discharge the defendant; he may still be proceeded against for assault, and that, under the present law, he is put to the inconvenience of having to appear and bring up his witnesses on a subsequent day. Well, let us see whether that argument advanced in the supposed interest of the defendant will hold water. I venture to think it will not, and for this reason: At the close of the hearing on the charge of obstruction, defendant is there in Court, and he can be charged instanter with the commission of assault; and if he does not object, the Court then and there can proceed to hear and determine. That, the hon. and learned Gentleman will not dispute, is Common Law. No doubt there are conditions under which the defendant might object, but ex hypothesi the defendant will be anxious to have the case settled then and there. I am rather jealous of these innovations. I think there is a tendency at the present day in the direction of laxity in legal procedure, a reaction, no doubt, against the pedantic formalism of other days; but I think a little too much laxity has shown a tendency to invade our Department of Criminal Law, and against the danger of this I make my protest. I have had some conversation with the Solicitor General on this subject, and he, in the most courteous manner, promised to explain his own view, and has even gone so far as to say that, if I am not satisfied with his explanation, he will be prepared not to press this alteration in our Criminal Law.

Amendment proposed, in page 4, line 13, to leave out all the words from the word "hearing" to the word "accordingly" inclusive in line 20.—(Mr. Pickersgill.)

Question proposed, "That the words proposed to be left out stand part of the clause."

(11.40.) THE SOLICITOR GENERAL (Sir E. CLARKE,) Plymouth

It is of so much importance that this most useful Bill, which has been so carefully considered, should be allowed promptly to pass into law, that I did say, and I am quite prepared to stand by it, that if the hon. Member feels it necessary to make a resolute opposition to this clause, I would rather yield on the point than lose the opportunity of passing the Bill. I said I hoped, and I still have that hope, to be able to satisfy the hon. Member that the alteration is a useful one, and in the interest of those persons whom the hon. Member has taken under his protection—that is to say, persons charged with offences of this kind who, for the most part, are poor persons. Such persons could now be charged with the offence of molesting, obstructing, or hindering an officer in the execution of his duty; and if it turned out that the officer was not strictly in the execution of his duty at the time, and that it really was a common assault, the Magistrate would be obliged to dismiss the charge originally brought, and then a new summons would be taken out and the defendant would get no costs. The defendant would have to answer that summons, the same facts would be repeated in evidence, and he could be convicted on the second summons. The only effect of this clause is, that if the facts proved before the Magistrate show that a common assault was committed, but not upon a man in the execution of his duty, the matter could be dealt with at once on the facts, and without the necessity of a second summons and a second hearing, but the result would be the same as if there had been both. The hon. Gentleman has suggested that it might be on different facts, but that cannot be. If the hon. Member will look at the words of the section he will find that if on the hearing of the complaint against any person it is proved such person knowingly committed an assault, he is not entitled to be, and will not be, acquitted by reason of the failure to prove the offence in the first instance. The clause indicates that the Magistrate must take into consideration the facts given in evidence on the first information, and he is limited to this consideration. It is said that punishment may be inflicted for assault upon some one else, but if the hon. Member will examine the words, he will see that is not possible. It is a charge of obstructing an officer in the execution of his duty, but if it be proved that the officer was not in the execution of his duty, then the defendant may not be wholly acquitted for his action, but is liable to be convicted for common assault. The alteration is a reasonable and practical one, and I do not believe it can injure anybody. I think it will be an advantage so to amend the law, but, as I said before so I say now, if the hon. Member desires to press the matter, I think the remainder of the Bill is of so much importance that, rather than imperil its passage, I will yield the point and allow the Amendment to be carried.

(11.45.) MR. BRADLAUGH (Northampton)

If the hon. and learned Gentleman is willing to abandon the words, I need not take up time with argument in support of the Amendment. ["Agreed."] Do I understand the subsection will be abandoned?

SIR E. CLARKE

signified assent.

(11.45.) MR. T. M. HEALY

The Solicitor General takes a very moderate attitude. Although I was a Member of the Committee which passed the Bill, and recognise that it is extremely desirous that the officers of the Department should be armed with strong powers in the execution of their duty in the prevention of smuggling, I am glad the hon. and learned Gentleman can see his way to accept the Amendment. I do not want to press my views, but I do think there is a great hardship in the manner in which such strong powers are given the Authorities against the ordinary citizen, while if the latter brings an action against an official, the official is hedged about with extraordinary protection. Observe that in case of conviction of offence against the officer, the Magistrate has no option but to inflict a fine of £100, not a fine up to that sum, it must be £100. While this protection is given to the officer of the law, if an officer of the law knocks down anybody in precisely the same manner, look at the way in which the officer is protected. Under Clause 28 the complainant must bring an action within three months, and then he must give notice of action, which, of course, is a technical thing, and then on the offence contained in the notice the defendant may plead not guilty by Statute and may make tender of amends. Now, all subjects of Her Majesty should be equal, and no man should have privilege beyond that of an ordinary citizen if he knocks me down, and I submit these distinctions are not justifiable. According to the Common Law Procedure Act the plea of not guilty by Statute was abolished. It was revived by Judge's Rule in Ireland, but it is a monstrous thing, while an official is hedged about with so much protection, that an aggrieved person, in an unofficial position, should find so much difficulty in obtaining redress. In Committee it was regarded as a very strong measure indeed, but the Government in Committee were assisted by some very able gentlemen, who represented the views of the Department, and the Committee yielded; but I must say I think there is rather a tendency to overdepartmentalise under the influence of gentlemen suffering from what the Americans call "swelled head."

Question put, and negatived.

Clause, as amended, agreed to.

Clauses 12 to 27 agreed to.

Clause 28.

(11.52.) MR. T. M. HEALY

I venture to make an appeal to the Solicitor General whether, in these modern days, it is not desirable to drop out such a provision as this. The House and the Committee have shown themselves willing to arm the Executive Authority with ample powers for carrying out their important duties, and this is a most useful consolidating Bill; but I appeal to the Government that when on the one hand they make it impossible for the Magistrate to mitigate the penalty on the subject, the subject should not, on the other hand, be so tightly fettered in bringing an action. I look with suspicion on any attempt against the Common Law. No doubt, executive officers have had this protection for many years, but have they not had it long enough, and has not the time arrived when such protection is no longer necessary? It would be well, when the Department is getting such valuable concessions as this Bill affords, that the Department should show that they do not wish to insist that their officers should have any more protection than other persons can claim when acting with illegality. I will not make any Motion until I hear what the lion, and learned Gentleman may have to say, but I am sure if a spirit of concession is shown there will be no difficulty about the Bill passing.

(11.54.) SIR E. CLARKE

I am sorry I cannot consent to the omission of the clause, and I hope the hon. and learned Member will not press that upon the Committee. He is aware this is a Consolidation Bill, collecting into one Bill provisions scattered over several Statutes in a manner that made the administration of the law somewhat cumbrous and difficult. The penalties and the provisions in the Bill do not involve any alteration in the law for the protection of officers in carrying out their duties. I hope the hon. Member will not press for the exclusion of the clause now. I cannot consent to that in this Consolidation Bill. If an amendment of the law should hereafter be thought desirable, the matter could be very readily dealt with. I would ask the hon. Gentleman to let the Bill go through now.

(11.55.) COLONEL NOLAN (Galway, N.)

I am sorry I do not see my way to accept that suggestion. I suppose, as the Government is in possession of a large majority, we must bow to their decision; but we could amend the clause considerably if the Committee would give attention to it. In Sub-section A I will move the omission of the word "three," in order to insert "twelve." I am afraid not many Members opposite have the Bill in their hands. Subsection A declares that no action shall lie unless commenced within three months after the cause of action, and in addition to that there must be a month's notice of action, which, practically, reduces anyone who brings an action against an officer of the Inland Revenue to a period of two months. That is a very short time, and I think it would be only reasonable and judicious to extend the time to 12 months. The Solicitor General says we are only consolidating the law from several Acts on the Statute Book, but I remember when I was on the Committee which dealt with the Criminal Law we found in that Committee the usual difficulty that the Government have, in consolidation, always the temptation to improve the law at the same time, and all the Departments rush in and want the Act made more severe. It is rarely you find a Government with sufficient good sense to resolutely confine the Act to consolidation. If they would do that, and not attempt to improve the law, they might do much in eliminating Acts from the Statute Book and making the law more clear. But they try to improve upon the existing Acts and make the law more severe, and this Bill is an instance. This, I think, affords a fair opportunity to provide that the Inland Revenue should not have the special protection afforded by this limitation of time.

Amendment proposed, in page 10, line 32, to leave out the word "three," and insert the word "twelve."—(Colonel Nolan.)

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

(11.58.) DR. KENNY (Cork, S.)

I beg to second this Amendment. It is obvious that a man may receive very serious injuries in a contest with an officer of the law, and may not for many months discover the extent of them. Yet, practically, the officer escapes liability if the action is not brought within three months. I think the Solicitor General might make some concession on this point, and take advantage of a Consolidation Bill to make an oppressive law less oppressive. As the Amendment is in that direction, I support it; and I hope the hon. and learned Gentleman, if he cannot accept 12 months, will agree to extend the time to six months.

(12.59.) SIR E. CLARKE

I hope the hon. and gallant Gentleman will recognise that we are acting upon the suggestion he himself made, and in a Consolidation Bill wish to consolidate and not alter the law. This clause is not an alteration of the law, it is a repetition of what is on the Statute Book. It is extremely important that in respect to actions brought in respect to alleged assaults there should be a proper limit, and I hope in a simple Consolidation Bill the hon. Member will allow the clause to remain as it stands.

It being midnight, the Chairman left the Chair to make his report to the House.

Committee report Progress: to sit again upon Monday next.