§ MR. E. H. PICKERSGILL (Bethnal Green, S.W.)
moved, "That this Bill be now Read a Second time." He said that he thought that the House would regard it as a very important Measure. He confessed that he should have been glad if, in the circumstances, the right hon. Gentleman the Home Secretary had been present.
§ THE ATTORNEY GENERAL (SIR RICHARD WEBSTER,) Isle of Wight
He will be here directly.
§ MR. PICKERSGILL
said that he was glad to have that intimation from the right hon. and learned Gentleman, because he thought that there was at least one Minister who would regard with peculiar favour the introduction of a Measure for the establishment of a Court of Criminal Appeal, namely, the Home Secretary, seeing that he had to discharge duties of a dual character, involving the responsibilty of exercising the clemency of the Crown, as well as of acting as a sort of Court of Criminal Appeal These were distinct functions, and he thought that it was calculated to lead to confusion, and to considerable misapprehension when they were exercised by one and the same persons. In his view, however, the establishment of a Court of Criminal Appeal ought in no way to interfere with the exercise of the prerogative of mercy. It was not peculiar to our country. The necessity for it was founded in the nature of law and in the conscience of the community. Law would be intolerable unless the community reserved 1230 and vested in some person power in suitable cases to remit or mitigate the penalties of law. Indeed, the mere fact that the prerogative had been occasionally abused would form no justification for abolishing it. Some 20 years ago a President in France persistently pardoned those who were guilty of the most diabolical murders, and the Parisians nicknamed him "le père des assassins," but nevertheless, no one in that country dreamed of abolishing the prerogative. Therefore it was that this Bill did not touch the prerogative of mercy that was vested in the Crown, or the manner in which it was exercised in this country. The mischief of our present system was, however, that the Home Secretary had to use the machinery of the prerogative of mercy when he was really exercising the functions of a Court of Appeal. The consequence was, that the conscience of the community was being continually outraged by the Home Secretary professing to pardon those who ought never to have been convicted. Thus in 1895 there were 22 cases, in which men were nominally pardoned on grounds which challenged the propriety of their conviction. When a man ought not to have been convicted, to pretend to pardon him was a scandal to the administration of justice. The Bill, therefore, proposed, by the establishment of a Court of Criminal Appeal, to relieve the Home Secretary from the trouble and responsibility of having to institute secret inquiries in cases where there was reasonable doubt whether the individuals ought to have ever been convicted at all. Another ground upon which he contended that a Court of Criminal Appeal should be established was the great disparity that existed in the sentences that were pronounced upon those who were convicted of various offences. No doubt he should be told that day, as he had often been told before, that the public were misled on the subject by the necessarily Short reports of cases which appeared in the newspapers, which did not clearly set forth the differentiating circumstances which justified that disparity. He fully recognised that there was an element of truth in that contention, but when every allowance had been made, the disparity remained a public scandal, and was admitted by the Judges themselves. No one would charge him with having a 1231 want of respect for the Judges of the land, but in proposing legislation of this character it was the privilege of hon. Members in that House to speak freely in reference to it, and to point out the defects in the existing system without in any way making a personal attack upon individuals. The personal equation played au exorbitant part at present in the administration of justice. The idiosyncrasy of a particular Judge, with regard to the sentences that he pronounced, displayed itself not so much in the general sentences that he passed, as in regard to some particular class of crime. Take, for instance, the killing of an infant by its mother, in a case where it was only through the merciful construction placed by the jury upon the acts of the person charged, that a verdict of wilful murder was not returned. In such cases there was a most extraordinary disparity in the sentences passed by different Judges. Again, one Judge might be peculiarly hard in cases of coiners or forgers, or where the sexual passions were concerned, while another might have a particular antipathy to servants who embezzled their masters' money. A weakness for Fagin was shown in one Court, and a weakness for Bill Sykes in another. Again, some Judges took a very strong view in cases where there had been previous convictions, and where such was the case sentences of penal servitude followed almost automatically. In another Court care would be taken to inquire into the nature of the first offence, and into the character of the new crime, and the time that had elapsed between the two, together with the relations between them, would be taken into consideration; while in a third Court previous convictions might be practically ignored. Judges were also divided in opinion with regard to the infliction of the punishment of flogging. Some Judges never imposed that punishment, whereas others only resorted to it when brutality had been used, thus (as they said) reserving a brutal punishment for brutal offences; while there was yet a third class of Judges who ordered flogging even in cases where the violence used was merely of a technical character. This disparity in the infliction of punishment was a scandal to the administration of 1232 justice. On another point, that which related to the addition of police supervision to other punishments—an addition to which he had the strongest objection, on the ground that it tended to hinder a man who was making an attempt to retrieve his character and to earn an honest living—there was a great difference of opinion between the Superior Judges and the Judges of Quarter Sessions, the former rarely imposing it, while the latter continually imposed it. He need only compare the difference between the sentences pronounced by the late Recorder of Manchester and the Recorder of Liverpool to illustrate the necessity that existed for the establishment of some central Court of Criminal Appeal, where sentences could be revised and brought into something like uniformity. He knew both the learned gentlemen to whom he referred, and was satisfied that they were both excellent lawyers and estimable men, and he had no desire to decide between them; but, although either of them might be in the right, they could not both be so. Mr. Justice Hawkins and Mr. Crackanthorpe had suggested as an alternative to a Court of Appeal, the appointment of a Royal Commission to consider and report on the principles upon which sentences should be based. He should expect, however, that little good would arise from the adoption of such a course, because a Royal Commission would soon find itself involved in a barren controversy in reference to the objects of punishment. On the other hand, a Court of Appeal would have concrete cases to decide, and that would be far more in accordance with English methods and the, English character. As the Judges said:—a series of decisions as to sentences by one Court would, by examples and the reasons given for them, tend to secure uniformity.With regard to the constitution of the Court of Criminal Appeal, the Bill provided that the Judges of the Queen's Bench Division should select from among themselves six Judges who, together with the Lord Chief Justice, would constitute the Court. As far as possible the Court would be constituted for long periods of the same 1233 Judges, in order to better secure uniformity. Then it was provided that the judgment of the Court within its jurisdiction should be final. That provision followed the existing law as far as the Court for Crown Cases Reserved was concerned. No doubt he would be met by this objection, that the jurisdiction of the Court for Crown Cases Reserved was vested in all the Judges of the High Court, although the Court might be constituted, and was usually constituted, of five members only. Still, in cases of doubt or difficulty, all the Judges might be summoned to attend, and that sometimes took place. It was obvious that, numerically regarded, the proposed Court of Criminal Appeal would be weaker than the present Court for Crown Cases Reserved, and it might well be a matter of doubt whether or not the power of appeal from the Court of Criminal Appeal should not be permitted. In the Bill it was proposed that the judgment of the Court should be final, simply because the Judges in their recommendations, which the Bill followed, laid down that, in their opinion, the judgment of the Court should be final. With regard to the jurisdiction which was to be given to this Court as to sentences, it was proposed that any person convicted on indictment might appeal for the revision of his sentence. Probably it would be said that this was opening the door to an overwhelming number of appeals. On consideration he did not think it was open to any very solid objection on that ground, and for the reason that the Bill itself provided an automatic check in this respect, that an appeal having once been made it would be open to the Court to increase the sentence as well as diminish it. Further, the object of the Bill being above all, as far as this part of the Bill was concerned, to secure uniformity of sentence, it was absolutely essential to vest in some public authority the right to initiate an appeal in order to obtain the increase of an absurdly light or insufficient sentence. The supporters of the Bill accepted the logical consequence to which they were driven, and vested that authority where he was sure it was not likely to be abused—in the Attorney General. With regard to convictions he might be told that this Bill did not go as far as it ought to go. Personally he rather sympathised with that objection. But the Bill went as far as Her Majesty's 1234 Judges were willing to go. It provided that the Home Secretary, upon complaint made to him, might refer any case of conviction to the Court of Criminal Appeal. In his judgment this would be going a great way to relieve at all events the pressing need which for some years had been experienced. Two notorious cases would have been amply met by this provision of the Bill—that of Mrs. Maybrick and the case of police constable Murray, of Hampstead. No doubt, if a provision of the kind had been part of the law, the Home Secretary of the day would have used it in the case of Mrs. Maybrick. Take again in the case of police constable Murray. The position was absurd. The Home Secretary believed he was innocent, but it was absolutely impossible for him to reverse the conviction. All the right hon. Gentleman could do was to give him a free pardon. Was not that insulting to the common sense of the country? Although the country approved of the action of the Home Secretary, and believed he had done substantial justice, still they felt the position was an absurd one in an innocent man being pardoned for a crime he did not commit. Questions of law, speaking generally, were amply met by the statute which established the Court for Crown Cases Reserved; but this was rather an antiquated statute, and there were one or two points in which it was found to be deficient. It had been thought a convenient plan altogether to repeal the Act which set up the Court for Crown Cases Reserved, but its provisions were substantially re-enacted in more modern phraseology with one or two amendments, mainly technical, and transferring its jurisdiction to the Court of Criminal Appeal. He felt that this Bill was likely to be criticised rather more for what it omitted than what it contained. He wished, however, to remove a misapprehension that often arose, not among lawyers but among laymen. It was said there was a greater disparity between the sentences imposed by Justices in Petty Sessions than by the Superior Courts. There might be some truth in that. But it was a sufficient answer as far as his present purpose was concerned, that at the present time, if any Court of summary jurisdiction sentenced a man even to a day's imprisonment there was even now a right to appeal— 1235 not, he admitted, a satisfactory one—the effect of which was to practically shut out poor men from availing themselves of it. But still, under the law as it stood, a right of appeal existed, and it therefore did not properly fall within the purpose of the present Bill. Still, he should be glad if appeals against summary convictions could be brought more within the reach of poor defendants. Personally, he would like to see a large and comprehensive Bill passed. But he would much rather pass a small Bill than no Bill at all, and he might frankly say that in presenting a Bill on so important a question, upon which he knew different opinions were entertained as to the manner in which its objects were to be carried out, he desired to cover himself with the authority of Her Majesty's Judges, and he had found himself bound in honour—having stated in the memorandum that the Bill was to carry out their recommendations, he had endeavoured to adhere strictly to them, and it was to a Bill embodying the recommendations of Her Majesty's Judges that he asked the House to give a Second Reading. When the Bill had passed that stage it would be open to Members of that House to propose Amendments. The question dealt with by the Bill had long been clamouring for settlement. The present was a great opportunity. The Session was still young, and there would be full time for discussing and amending the Bill in Committee. The House, by reading the Bill a Second time, would remove from the Home Secretary of the day, whoever he might be, a most embarrassing part of his duties, and set the country free from the stigma which, as far as he knew, was fastened upon it alone among civilised countries, that whereas a matter of a few pounds in a civil case could be carried from Court to Court and even to the House of Lords itself, there was no Court of Appeal in criminal cases. The necessity for such a Court had long been demonstrated and widely felt, and he trusted the House would meet that necessity and satisfy that feeling by giving a Second Reading to this Bill. [Cheers.]
§ SIR ALBERT ROLLIT (Islington, S.)
said he rose to Second the Motion, and he hoped the Government would at least give it such a measure of support as would induce the House to affirm the 1236 principle that there was a need in this country for a Court of Criminal Appeal. The House was fortunate in being represented by the Home Secretary and the learned Attorney General, because the first named had always taken a broad practical view of questions of law reform, and he trusted he would give favourable consideration to what would be a great law reform indeed. The absence of a Court of Criminal Appeal had been a great blot upon our jurisprudence. The want of it was pointed out, long ago, by Jeremy Bentham, and there had been a gradually increasing concensus of opinion that a reform in this direction was needed, not only in the interests of the life, but more frequently of the liberty of the subject. The Judges, with all their experience in the administration of the law, recommended this reform. Lord Esher, the Master of the Rolls, had spoken very strongly in its favour. No one could fail to be struck with the anomaly that marked our law. While cases involving a small sum of money or a civil injury might be taken, by a succession of appeals, to the House of Lords itself, yet in a matter that involved character, liberty, or life, the verdict of the jury was practically conclusive. As to the objection that there would be a multiplicity of appeals, if multiplicity was necessary in order to effect justice that was an answer to the objection. But, inasmuch as this Bill was a two-edged weapon, giving the right to increase as well as to decrease or annul a sentence, the very general use of it that had been anticipated would not, he thought, be made. On the other hand, the right of appeal, though it might not be used, would be a very great security for justice being done in the Court of First Instance. It was a notorious fact that there had been grave miscarriages of justice in criminal proceedings, even in capital cases. Happily, they seldom occurred, but still they did occur, and the life of a perfectly innocent man might be taken. The late Mr. Justice Stephen had estimated the number of such cases at one per 1,000, and had said that the percentage was so small as scarcely to justify a claim for the amendment of the law. He thought, however, that no effort ought to be spared in a humane code of law to reduce the probability of such cases occurring to the lowest possible term, as even one case 1237 in 1,000 carried with it the most serious consequences to the individual. He was even surprised that no steps had been taken to establish some fund for proper compensation in such cases at the expense of the nation. It had been objected that this Bill would lead to considerable delay, but that objection was recognised in the Bill, which provided for the rapid hearing of such cases. He did not think objection should be taken to delays which arose when there was a reasonable chance of injustice having been done. A tribute was due to the present Home Secretary and past Home Secretaries for the most painstaking care which they had given to cases in which, application was made for remission of sentence or pardon. It was in the public interest that no guilty man should escape, but it was also necessary that no reflection should be thrown upon the law in consequence of a wrong conviction. The law required a wholesome publicity in the case of our legal tribunals, an oath was administered, and there was the right of cross-examination; yet in the tribunal of last resort none of these safeguards existed. The proceedings before the Home Secretary were secret, and he ventured to say this secret tribunal carried with it a grave disadvantage in connection with, the administration of justice. He would instance the recent case of the release of certain dynamitard prisoners. Even in that House, awl very widely throughout the country, a wrong supposition existed as to the motives of the action of the Home Secretary. That misapprehension was completely reversed, and nothing could be more conclusive than the vindication both of the motives and action of the right hon. Gentleman—["hear, hear!"]—but the existence of the misapprehension was a result of the secret administration of those matters. The same thing might occur in connection with the mitigation of other sentences, or the refusal to reverse them. He ventured to say that to vest that jurisdiction in any one individual was eminently undesirable. The individual might have personal predilections which were opposed to capital punishment, and might remit a sentence, not because of a desire to attain justice under the law as it was, but under the law as he thought it ought to be. The prerogative of pardon did not fulfil its purpose at all; the very idea of pardon connoted guilt, 1238 whereas the reason for the reversal of sentence in these cases was because a man was believed to be not guilty. Such a man ought not to go out into the world with a taint which carried ruin with it during the remainder of his life. What was needed was a rehearing, in which the man might be vindicated and his character established. He did not think he could cite any case more indicative of the inadequacy and injustice of the present system than that of Smethurst, which was commented upon by Mr. Justice Stephen. The great interest of this case was its bearing on the question of new trials in criminal cases. The jury convicted Smethurst on the evidence as it, stood, and if the sentence had remained unaltered there would undoubtedly have been an injustice. After the trial the Secretary of State asked a very eminent surgeon what he thought of the whole case, and received from him the opinion that, although the facts were full of suspicion against Smethurst, there was not absolute and complete evidence of his guilt, and then advised the Crown to give a free pardon. It was difficult to imagine, said Mr. Justice Stephen, in commenting upon the case, anything less satisfactory than this course of procedure, which put the parties concerned in a false position. Then there were instances of the variation of sentences of the most extraordinary character. There was the case of one Recorder who minimised sentences to the lowest possible point; there were Judges popularly known as "Hanging Judges," who took the directly opposite view; and one of the great advantages of the Bill was that it would create a Court which would indicate the principles upon which sentences should be imposed. The Bill, it was true, might go further. He admitted that it was illogical to refer minor matters and only sentences to the Court for revision and to except the death penalty. But the Bill was only a tentative Measure, and if it worked well it would, no doubt, be extended in its operation. Some relics of barbarism still existed in English law, among them that the prisoner who knew most could say least in his own defence, and as a consequence of giving evidence subject himself to cross-examination; and also that a person wrongly convicted could only appeal to a secret tribunal which, even though it set him at liberty, 1239 sent him forth to the world with the brand of the criminal still upon him. The object of the Bill was to remove those relics of barbarism from English law, and he therefore trusted it would receive the support of the House.
§ MR. THOMAS BUCKNILL (Surrey, Epsom)
said he would not have ventured to take part in the Debate only that he had some experience of criminal law, both as a barrister and as the Recorder of a populous city. The Mover of the Bill had said it was intended to carry out the suggestions in the Report of the Council of Judges; but though it was not to be supposed that he took an antagonistic view altogether of the Bill, he should point out that it went much further than the hon. Gentleman had indicated. The Report said:—After full consideration, the institution of a Court is recommended having full jurisdiction to review and alter sentences and a limited jurisdiction to assist the Home Secretary in reconsidering sentences or convictions at his request.With regard to the revision of sentences, it was to be regretted that there was no rule by which Magistrates, Recorders, or even Judges in the Superior Courts were directed or instructed as to what sentences should be passed; and no one could follow the proceedings of the Criminal Court without noticing that, owing sometimes perhaps to heat or temper or prejudice, to which everyone was occasionally subjected, sentences were passed which appeared to be very unjust. ["Hear, hear!"] But there was considerable doubt as to whether a Court of Appeal was the proper machinery to secure that the injustice done in those cases should be remedied. ["Hear, hear!"] The hon. Gentleman who moved the Second Reading of the Bill spoke about "the personal view" being the main cause of the passing of such sentences. But "the personal view" was inevitable. It must influence Magistrates, Recorders, and the Judges of the Superior Courts; and they could not escape from it even in the proposed Court of Appeal of five Judges. ["Hear, hear!"] In regard to the second recommendation of the Council of Judges, that assistance should be given to the Home Secretary upon his own initiative, he would point out that 1240 Clause 3 of the Bill, instead of lightening the labours of the Home Secretary, as the Judges desired, would largely increase them. At present the Home Secretary, by reviewing the evidence taken at the trial and considering circumstances that might have subsequently come to light, did his best to see that justice was done in every case in regard to which an appeal was made to him. But under the Bill he would have to do more than that. Clause 2 provided that the Home Secretary should first go through the whole thing himself, and then lay before the Court of Criminal Appeal such evidence as he considered proper. Therefore the Home Secretary's troubles and responsibilities would be increased by the Bill. Again, Clause 2 directed that the Court, having considered such evidence as the Home Secretary might direct to be laid before them, might set aside and reverse the conviction, diminish the sentence, "or make such other order as justice seems to them to require." The power intended to be given to the Court of Appeal by the Council of Judges was very much less than that. They recommended that the Court should have "power to quash the conviction or diminish the sentences respectively." The words of the Bill, "or make such other order as justice seems to them to require," would include the right of the Court of Criminal Appeal to order a new trial; but Resolution 100 of the Council of Judges said, "The Court shall not in any case have power to direct a new trial." He was convinced that there was no such great evil in connection with the conviction of innocent persons as called for this Bill, excepting its provision for the revision of sentences. He should be sorry to see the law in this country assimilated to that on the Continent. He could well understand that an appeal was needed there; but here we began by assuming a man innocent until he was proved to be guilty. No man could be interrogated as to his guilt or innocence; and every judge—whether of the High Court or of Petty Sessions—took the keenest interest in seeing that the prisoner had fair play. He believed that the number of innocent persons who had been found guilty was exceedingly small; and if this Bill was merely to carry out the resolutions of the Judges, he thought he had shown that it went much beyond that. He should not go 1241 so far as to vote against the Second Reading, but he was sure that the evil did not exist to the extent which had been stated. He thought the Bill might stop at dealing with those points suggested by the Judges in their report—the revision of sentences and the lightening of the Home Secretary's responsibilities.
§ MR. W. AMBROSE (Middlesex, Harrow)
said that he approached this Bill with considerable hesitation, and he sympathised with the object of the hon. Member who introduced it. He was quite disposed to give every attention to any recommendation of Her Majesty's Judges; but while it was the business of the Judges to declare what the law was now, it was the duty of Parliament to say what the law should be in the future. This Bill would be likely to recommend itself to people before it was examined in detail. Sight seemed to have been lost of the fact that the decisions from which the Bill would give an appeal were not founded on first hearings. In the case of an indictable offence, the prisoner was first brought before the magistrates, who would not even send the ease for trial unless they were convinced that there was evidence on which a jury would convict. Then the case went to the Assizes or the Central Criminal Court; but before it went to the Judge and jury it was submitted to the Grand Jury, who stood between the prisoner and an unnecessary trial. Then, in the trial, the jury approached the question with fresh minds, and the Judge—who belonged to the High Court—was capable of dealing with any legal paints which arose. Difficult legal points were not numerous in criminal cases, and if the Judge were at first unfamiliar with them, he soon learnt all about it with the assistance of a competent Bar. The Bill simply proposed to prolong the prisoner's ordeal; and on what grounds? The first reason urged by the Mover of the Bill was the great disparity of sentences. He would admit that there was a great disparity of sentences, but there was also a great disparity of circumstances, and the Judge had to consider every circumstance in pronouncing sentence. Of course, one Judge might be lenient, and another severe; but that was a necessary incident to human justice. And was it improved by giving an appeal? If absolute uniformity were attempted, it would mean that merciful 1242 sentences would often be made more severe. If an appeal were given, in how many cases would it not be resorted to? If a prisoner was sentenced to death, or to a long sentence of imprisonment or penal servitude, it would become a penalty on the relations of the prisoner, because they would be urged to strain every effort and to spare no sacrifice with the view of giving another chance to husband, father, wife, son, brother or sister. What would be thought of a father who did not spend his last sixpence in the effort to procure an appeal for the, purpose of getting the sentence or conviction of his child reversed? But the great objection, after all, was that juries would be influenced by the consideration that their verdict would not be final. ["Hear, hear!"] At present there was a great sense of responsibility upon them, knowing, as they did, that the verdict they might give was irrevocable. If Judges found that sentences could be reversed or reviewed by the Court of Appeal, they would soon come to think it was not material what sentence they passed. So with juries It did not seem to him, notwithstanding the resolutions of the Judges, that the question was ripe for a hill of this description, and under these circumstances, unless he heard something more than he had heard hitherto, he was afraid he should feel it his duty to vote against the Bill.
§ SIR ROBERT REID (Dumfries Burghs)
hoped that not many Members would accompany the hon. Member into the Lobby in opposition to this Bill. Whatever views there might be in regard to the details—and he admitted that the Bill was capable of amendment and improvement—he thought it would be a great misfortune if the House of Commons were to decline to extend the power of appeal in criminal cases. The condition of things existing in this country was almost unique among civilised nations. No doubt we ought not to regard the procedure of foreign countries as having binding authority upon ourselves, but he did not know that it was the part of wisdom or patriotism to decline to follow a good example which worked well in foreign countries. Not merely that, but he believed cases of real injustice occurred under the present system, notwithstanding the infinite care taken by almost Judges in criminal cases. He hoped the 1243 Bill would be followed by other Bills in regard to the criminal law; for he could not imagine the time of Parliament better occupied than in amending the irregularities and inequalities in the criminal law. Ample opportunities were given for appeal in civil actions, so jealous were our laws in regard to questions of property; but what was the case in regard to questions of character, of liberty, or even of life? A man was tried for his life and was sentenced to death. He was tried, to begin with, by a common jury. He did not wish to convey that a special jury would necessarily be a superior tribunal, but he thought that, especially in cases of embezzlement, it was an advantage to an innocent person, but against whom appearances were strong, that he should have the advantage of being tried by a special jury. That could be done in a few instances by removal of the venue to the Court of Queen's Bench, but, unless the Attorney General himself moved, it was not easy to get this done. Every- one who had seen cases tried in Court must know that juries may come, and often do come, to erroneous conclusions, and must have seen their findings set aside as unsatisfactory by Courts of Appeal. Yet no one would dispute that the Judge had been honest, and the jury honestly endeavoured to do their duty. And when the hon. and learned Member for Harrow spoke of a Court of Appeal in Criminal Cases having the effect of relaxing the sense of responsibility of a Judge without intending it, he was guilty of a libel on the Judges. It was incredible that any man trying a prisoner for any criminal offence would cease to do his duty because of the knowledge that he had the Court of Appeal behind him. Again, look at the consequences of a verdict. In the case of a civil action the consequences were expressed in damages; in a criminal trial they were expressed in punishment, either of death or imprisonment, and yet there was no opportunity allowed for reviewing the verdict. Such a law was not a humane law, and was not what the law ought to be in a civilised country. Why was it that they managed to get on comparatively well? In the first place, the sufferings were endured in secret in many cases. There were persons best qualified to form opinions about criminal 1244 trials who would say that there were many cases from year to year in which innocent persons were convicted; and anyone who read the newspapers, who had in him a spark of humanity or intelligence, noticed sometimes ferocious and cruel sentences inflicted for crimes which indeed merited punishment, which merited more than a reprimand sometimes, yet by the severe Rhadamanthine view of justice were punished most severely. Those who were least experienced in the administration of the law were most severe in their punishments, and those who were least experienced in human nature were most severe in their punishments. When he used to go on circuit, and was fresh called to the Bar, he remembered how one used to hear the criminal say that he hoped to be tried before a "red" Judge—that was to say, one of Her Majesty's Judges, because as a rule their punishments were less severe than those received by them at Quarter Sessions. He recollected one occasion, not long ago, he went into an Assize Court. He was present while Sir Henry Hawkins passed sentence on a prisoner. Mr. Justice Hawkins was one of the most distinguished and one of the most humane and merciful Judges. A man was brought forward against whom it was proved that he had been twice convicted for felony, and on each occasion he had served periods of penal servitude inflicted by Quarter Sessions—five years in each case. Mr. Justice Hawkins read out in Court, at Reading, the crimes for which this poor fellow had endured sentences equal to ten years' penal servitude. They were for stealing something worth 1s. 6d. in one case and 1s. 5d. in another. Mr. Justice Hawkins passed a sentence of two or three months' imprisonment for the third offence, and he thought the Judge said that in his opinion this man had already suffered sufficiently. What they had to consider, therefore, was whether or not there was to be any opportunity given for the purpose of re-trying, as they could in civil cases, the question of guilt or innocence before a Court of Appeal; and, further, whether in a case of sentence of great severity they were not to have some means of appealing to the judgment of more than one man—[cheers]—to the judgment of a Court 1245 composed of the most upright and experienced Judges, who by conferring together would, he had no doubt, come very often to the conclusion that they might mitigate the severity consistent with justice. The next consideration was as to the character of the Amendment in the law proposed by the Bill. The hon. Member who moved it seemed to dwell on the point that this was a Bill emanating from the Judges of the High Court. He was, of course, prepared to treat with respect any recommendations coming front so high a quarter, but he did not intend to guide himself in the Vote he should give by the fact whether or not the Bill corresponded with the recommendations made by the Judges. The House should consider them, but they should also consider their own experience and duty, and he did not think they should confine themselves within the limits which the Judges recommended. The Bill, following broadly on the recommendations of the Judges, proposed regard to convictions which were impugned as being wrong that it was only by the action of the Home Secretary of the day that there should be any rehearing of the question. He protested against the limitation. Why was the fiat of the Home Secretary to be obtained before a man could be permitted to take the sense of the Court of Appeal as to his guilt or innocence when it was not expected or required if he merely wished to try the question as to whether his sentence had been excessive or not? ["Hear, hear!"] The Bill was capable of amendment in Committee, and he hoped it would be amended. It seemed to him to go against the constitutional doctrine that a man convicted by a Criminal Court should have between and the Court of Appeal the discretion of one of the Members of the Government of the day. He believed that this would be a very unwise limitation. If the limitation were removed it would leave an unqualified appeal in all cases of criminal conviction to the Court of Criminal Appeal. For his own part he was not at all afraid of that. He believed it was a mistake to suppose that there would be any large number of appeals. The County Courts, speaking broadly, had not in ordinary cases jurisdiction, except by consent above the sum of £50, and every action for £55 had to be 1246 brought into a superior Court and be tried by one of the Judges. In Scotland the Judges, who received half the salary of a County Court Judge, had unlimited jurisdiction in all personal cases, and jurisdiction up to £3,000 in real cases. If we wished to unburden the Judges we should encourage them to do the criminal work and deprive them of the duty of trying a large number of small and trumpery cases. The most important part of the duty of the Judges of the High Court was the criminal part. They should always be showing an example which would be readily followed by other criminal Judges of less status, so that the criminal laws of the country should be merciful and humane laws, although at the same time administered with a certain amount of rigour in exceptional cases. He did not believe, therefore, that the time of the Judges would be unduly occupied. It was not necessary, moreover, to introduce an artificial limit, such as the Bill proposed, to the effect that the Court of Criminal Appeal should have power to increase sentences. That was repugnant to the entire spirit of the criminal law administered in this country during centuries; the spirit of the criminal law had always inclined towards mercy rather than towards severity. On no consideration ought there to be any power given to a superior Court to increase the sentence. Let the Courts diminish sentences as much as they pleased; but to increase them was revolting to every one accustomed to the temper of our Courts of Justice. As to the other part of the Bill, allowing an absolute appeal in cases of sentences, he agreed with it. He thought it would be very desirable to allow an absolute appeal in the case of all sentences, if only for the purpose of obtaining uniformity. ["Hear, hear!"] He thought, himself, the tendency with regard to sentences had been to make them much milder, and he was bound to say that one danger in that excellent tendency was that some Judges might be disposed to go too far and discredit the system of leniency which was now coming into force. At all events, he was sure that there were exceptions, and it was, to his mind, most desirable that there should be a power of appeal with regard to exceptional cases. If the matter went to a Division, he should give his hearty support to the 1247 Second Reading of the Bill. He agreed with the principle of it, though he thought it required amendment and also enlargement. ["Hear, hear!"] He believed, if the Bill were boldly tried, it would turn out to be a success. He hoped the Government would give it their support, and if they did they would deserve the gratitude of the country for aiding in a very substantial piece of work in the amendment of the laws. ["Hear, hear!"]
§ On the return of Mr. SPEAKER, after the usual interval,
§ MR. ROBERT ASCROFT (Oldham)
said there was a general feeling that the time had come when criminal offences should be dealt with, in the matter of appeal, in a manner exactly similar to civil questions. It was a crying scandal that at the present moment the liberty of the subject should be held at such a cheap rate that in case of any miscarriage of justice there was no Court to which a person could go by way of appeal, while in pecuniary matters every Court stood wide open for the purposes of appeal. The hon. Member for Harrow wished the House to believe that the position of prisoners was already safeguarded in two ways—first of all by trial before Justices, and secondly by trial before the Grand Jury. His experience was to the contrary. The trial before the Justices was nothing more than an inquiry. As soon as the Justices were satisfied that there was sufficient prima facie evidence on which a prisoner could be sent for trial, he was at once charged and committed. When the case went before Quarter Sessions or the Assizes, all the Grand Jury had to decide was whether or not there was sufficient evidence on which to put the man on his trial. He did not care how wide the Bill was made. His own desire was that all the sentences should be reviewed where there was any possibility of that being done. Unfortunately, where prosecutions were got up by the police—who, he believed, desired in the main to do What was right and fair—he had known of numerous cases where evidence which possibly threw doubt on the guilt of a particular prisoner had not been produced at the trial. He should like to see the Bill extended so that all depositions 1248 taken by a police-constable in the preparation of a case should be placed before the Judge before whom the prisoner was to be tried. At present be was rot aware that there was any authority to compel the police to produce that evidence. Above all things they must have it thoroughly and clearly understood that in cases where sentence of death was passed the prisoner should have the right of appeal at once. That was not, in his opinion, clearly provided for in the Bill as at present drawn. The Bill, he considered, was rather loosely drawn, but if it went to the Standing Committee on Law they would no doubt be able to make such alterations in it as would carry out the intentions of the hon. Members who had introduced it. The third Section of the Bill, for instance, was undoubtedly too wide. It did not say who the complaint was to be made by. It did not confine the complaint to parties who were interested or affected. He should suggest that it would be necessary that that complaint should be limited either to the prisoner or to some one who was affected by the judgment. He entirely agreed with the late Attorney General that it would be unwise to allow the Judges of the Court of Appeal to have the power of increasing sentences. He thought that would be repugnant to the feelings of all Englishmen, and altogether unnecessary to the carrying out of the objects they desired to secure. He could not thoroughly understand from the Bill whether in the case of a death sentence the prisoner had the full and free right of appeal. Above all things, they must have it thoroughly and clearly understood that a man so sentenced had a full and clear right of appealing at once. Then again, in Section 9, they limited the, time within which an appeal was to be made, while in Section 11 they allowed any convicted defendant who was in prison to make an appeal, and no time was fixed. Was it intended that a prisoner, after serving twelve months or two or three years, should have the right of appeal, or did they intend that he should be bound by Section 9? He regarded as very unreasonable the sub-clause of Section 9, which provided that the depositions of all the witnesses and the notes taken by the Judge should be placed before the Court. His experience had 1249 been that Judges as a rule were exceedingly bad writers, and he should suggest that a certified copy of the notes of the Judges would be far more satisfactory. He thought that in the case of a death trial the Judge should have power to order that the accused be properly defended, the costs and fees of counsel being paid in the same way as those of the prosecution. He was also of opinion that where a person had been improperly convicted and the conviction was quashed, the whole of his expenses in defending himself should be paid, either out Of the Consolidated Fund or from some other source. He had every respect for the Judges, but did not think the House ought to be confined entirely to their recommendations. In conclusion, he expressed the hope that the Bill would be passed, and that they would thus be able to make an alteration of the law which would be satisfactory to their constituents. Personally he was aware of injustice having been inflicted upon prisoners, injustice which would assuredly have been removed had there existed a Court of Criminal Appeal.
§ MR. LLOYD WHARTON (York, W.R., Ripon)
said that, although this subject teas deep-seated in the hearts of those who had to deal with the administration of the criminal law, it was one of great difficulty. The Bill did not deal with convictions but with sentences, and he thought that, if machinery could be invented by which sentences could be reviewed, it Was only just and right that such machinery should be put in motion. At the same time, there were some difficulties in connection with the organisation of that machinery, because if they gave every prisoner who was convicted the right of appeal, and even if only one-third or the prisoners availed themselves of the right, they would throw upon the Court of Criminal Appeal an amount of duty that could hardly be realised. He estimated that in the course of one week the learned Judges sitting at Assize tried 300 prisoners. Suppose 100 out of the 300 prisoners appealed against their sentences. Could hon. Members conceal from themselves the amount of work that would thus be thrown on the Court of Criminal Appeal? The first clause provided that the defendant—and that he took to mean any defendant who was convicted on indictment before a Court 1250 of Trial—that he took to mean a court of record—should have the right of appeal. It was, perhaps, rather a question for discussion in Committee than on the Second Reading whether in any, and, if so, in what way they could limit the right of appeal. He saw the greater difficulty in limiting the right of appeal to anybody, because, manifestly, the poorest prisoner ought to have the same right as the richest. In civil cases the right of appeal was really limited by the extent of a person's ability to pay the costs of appeal. In this case there was no question of payment at all; there could be no restriction, but the right of appeal must be given to all alike. An hon. and learned Gentleman had suggested that there might be a limitation by the length of the imprisonment inflicted. There, again, he saw a difficulty, because if a man was illegally sentenced to three months' imprisonment, he did not see why he should not have the same right of appeal as the man who was sentenced to ten years' penal servitude. There were many other matters of detail which would require serious consideration in Committee. There was, for instance, an important point raised by the third clause. There was provision there to diminish the present power possessed by the I Home Secretary of reviewing sentences inflicted by Courts. Only the other day a learned Judge, whose opinion it would be admitted, were he in a position to mention his name, carried great weight, said to him:—"Whatever you do in the House of Commons do not interfere with the present power possessed by the Home Secretary; it is a most valuable power, exercised in a way that no Court of Appeal could exercise it." Power was also to be given to the Court of Appeal to confirm, increase, or diminish a sentence. One's feeling certainly one to reject the power of increasing a sentence. [Mr. DILLON: "Hear, hear!"] It was a dangerous power to give—[Mr. DILLON: "Horrible! "]—one which was repugnant to human nature. A good deal had been said with regard to the variety of the sentences inflicted. For 26 years he had administered justice in a county which had now a much better repute than it had formerly, and he was sorry to say that altogether he had to deal with about 5,000 criminal cases.
§ MR. A. K. LOYD (Berks, Abingdon)
said he entirely agreed with his hon. Friend who had just sat down, that the present Bill must be regarded as a Bill for the revision of sentences and not of convictions; that observation having applied to that part of the Bill which gave a general right of appeal. ["Hear, hear!"] So far as related to the jurisdiction to be exercisable at the instance of the Home Secretary or the Lord Lieutenant of Ireland, the words in Clause 3 gave power to deal with the conviction itself. His hon. and learned Friend the Member for Dumfries (Sir Robert Reid), declined to be bound clown to the recommendations of the Judges' Report. The hon. Member's view being in favour of a Court for the revision of convictions, and that view being largely based upon the alleged frequency of wrong convictions, he was quite right from his point of view in claiming to go outside the Judges' recommendations, because, though the language of the Judges' Report was large enough to comprise an appeal generally, yet the reasons given were confined to the inequality of sentences and the importance of producing uniformity of sentences.
§ SIR ROBERT REID
said he could assure his hon. and learned Friend that he never said the Judges had rested their recommendations on the existence of wrong convictions; he merely said his own Opinion of their frequency was based upon very careful inquiry from good authorities.
§ MR. LOYD
said he thought the hon. Member and himself were not really at difference. He was saying the hon. and learned Member was right in not relying upon the Judges' Report, because it did not support him in his view as to the frequency of wrong convictions. The Judges said the evil to be remedied was the inequality of sentences, and were not, apparently, of opinion that convictions were wrongly obtained. But there was another reason why the hon. and learned Gentleman and others who had addressed the House might be excused for desiring to discuss the question on wider grounds than those on which the Judges' Report proceeded. This matter had been before the House repeatedly of late years—sometimes in the limited form of a Bill for assisting the Home Secretary in capital cases; sometimes in the wider form of a 1252 Bill for a general right of appeal in criminal cases. In 1882 the Death Sentences Appeal Bill was read a First time in February, and after lying dormant the whole Session was withdrawn in August. Then in 1883 a Bill giving somewhat wider powers of appeal was introduced by Sir Henry James, the then Attorney General, and was the first Bill to be referred to the then newly-constituted Standing Committee on Law, presided over by Mr. Sclater Booth, afterwards Lord Basing. That Bill received full discussion, and the Chairman was able to Report it as amended to that House as early in the Session as the end of May. But, unfortunately for that Bill, it was nearly related to the much larger Measure for the codification of the Criminal Law, and being tied in that way to the larger Bill, with which the progress was not so rapid, neither of them came to completion. So matters remained till in 1889 the question of a Court of Criminal Appeal was raised again—so far, at least, as related to the project of giving some relief to the Home Secretary in controverted convictions on capital or serious charges. In that year the Maybrick case was tried at Liverpool Assizes. He desired to avoid alluding to anything controversial in that case, but he thought he might state, without incurring opposition from any quarter of the House, that Mrs. Maybrick was found guilty by the jury of the murder of her husband, by administering arsenic to him, and that verdict, of course, implies that the arsenic was administered with intent to cause his death. But, owing to a controversy raised between the scientific and medical witnesses, a substantial doubt was thrown upon whether the arsenic so administered was really the efficient cause of the death. The unfortunate man had been deluged with physic for some weeks before his death, and it being necessary that the intent should be combined with the actual causing of the result, the doubt so raised led to the sentence being commuted. Ho thought that the strain to which the Home Secretary was then subjected by such a controversy of fact as that, had a great deal to do with the introduction by Sir Henry James of the Bill of 1890, which was a Bill for a Court of Criminal Appeal in capital cases only. That Bill never got beyond a First Reading, and was reintroduced in 1892, when it met with a similar 1253 fate. But in that same year, 1892, the Judges, in making their Report to the Secretary of State, under Section 75 of the Judicature Act, 1873, dealt with the question of an appeal in criminal cases. The consequence, was that when, in 1895, a Bill on this subject was introduced the Memorandum prefixed to it described it as being a faithful copy of Sir Henry James's Bill of 1883, as amended by the Standing Committee on Law, with two additions which were directed to effect to the Report made by the judges in 1892. The present Bill, in its turn, was described as being framed for giving effect to that Report. Now, what was the Report of the Judges? It was directed to two objects. First, to the revision of sentences for the purpose of producing uniformity in the proportion of sentences to the offences for which they were imposed. Secondly, to granting to the Home Secretary, in serious criminal cases, access to a tribunal of High Court Judges in those instances of controverted fact upon which he was urged, nominally, to advise the exercise of the prerogative of mercy, but in reality to act as a Court of Appeal upon the facts against the conviction or sentence. Not one word was said, as a reason for the general power of appeal, either in the recommendations themselves at the close of the Report or in the statement of their grounds which appeared at pages 9 and 10 of the Report, as to there being any grievance front wrongful convictions. All they said was:—There is a great diversity in the sentences passed by different Courts in respect of offences of the same kind. It is much to be desired that this diversity should be, if possible, avoided.Then their Lordships passed on to the second evil to be remedied, viz., the pressure put upon the Home Secretary in capital and other serious cases, which they said threw "at times more responsibility upon the Home Secretary than any one man ought to have imposed upon him." On this second point there seemed, from the speeches up to that point of the discussion, to be no difference of opinion that the Home Secretary should be relieved from the pressure of these grave issues, which were not really appeals to the prerogative of mercy, but were appeals on questions of fact, often of the most compli- 1254 cated kind, and leading to an intolerable strain upon the Home Secretary. Being in accord with the principle of this part of the Measure, he would support its Second Reading. But on the first proposal, viz., that of giving in non-capital cases a general right of appeal to a Court for revising sentences with the sole object of producing greater uniformity, he felt a very great deal of difficulty; while he was desirous of giving due weight to the fact that this proposal had the approval of the Council of Judges. The questions which he should like to hear fully discussed upon this part of the Bill were these. Could uniform sentences be obtained by any legislative proposals whatever? If they could, might they not be just as well obtained without this particular proposal of a Court for reviewing sentences? And, lastly, if it were necessary to create a Court for reviewing sentences, was it necessary to give this general power in all non-capital cases and to all defendants to set the Court in motion? In the first place the Judges seemed somewhat half-hearted upon this first proposal. They said it was much to be desired that this diversity (of sentence) should be, "if possible," avoided; and that a series of decisions by one Court would, by examples, and the reasons given for them, "tend to secure uniformity." And with regard to the power of the Attorney General to move to increase sentences, they said it should be given to him "only to be exercised in rare cases." Before making such an experiment it was most important to see whether uniformity of sentences were possible at all. The main step towards rendering uniformity possible had already been taken in removing during the past thirty years many of the inequalities in the severity of gaol treatment which had survived to our own day. The Prison Acts of 1865, 1877, and 1884, had brought our prison discipline as a whole under the view of the Home Secretary and the Prison Commissioners, aided by their Inspectors. Certainly, without uniformity of treatment in the different prisons a mere nominal uniformity in the sentences would have been illusory. So far, therefore, some progress had been made towards rendering uniformity of sentences possible. But did it not remain, for other reasons, 1255 an impossible task still? Were there not reasons in the very nature of the case which must make it impossible even in the future? The sensibility of the person punished to the pain of the punishment was an all-important factor. Bentham had been vouched by the hon. Seconder in support of this Bill. This was one of the considerations which Bentham said we were never to lose sight of. The same nominal amount of punishment was by no means the same real amount to two persons of different degrees of sensibility to the penalty, whether pecuniary, or physical, or mental. Then there was the demeanour of the accused and his or her appearance, and all that it conveyed to the Court of first instance. Moreover, how much depended upon the degree of provocation in offences of violence, or of temptation in attacks upon property, and some other cases. And then there were great differences, among the authorities themselves who were to create the so-called uniformity, upon certain matters, which must first be settled one way or the other. The late Lord Chief Justice Coleridge was of opinion that a small offence, though repeated half-a-dozen times after punishment, remained as small an offence the last time as the first time it was committed, and many others might share that view. Certainly some would hold an opposite view and consider impenitence after correction a ground for cumulative penalty. No doubt the nice distinctions which had justified the action of the Court of first instance might be brought to the knowledge of the Court of review, either on affidavit or by the report of the inferior tribunal, but you would never get these niceties before the public, and there would always remain the impression, after this nice adjustment had taken place, that one man had received nine months or nine years' punishment on precisely the same charge, or, as it would be put, for the same offence, as that for which another had only got three. But assuming the uniformity to be possible, could it not be as well attained without any legislation and without creating a Court to review sentences? Why should not the uniformity be arrived at by consultation between the Judges, and the result he communicated by circular to the magistrates and Recorders, who would gladly welcome and give effect to 1256 the principles set out for their guidance by such high authority? And lastly, if legislation on this head was necessary, and a Court for review of non-capital sentences was inevitable, was it necessary to open the door to the general review of sentences at the instance of any defendant who was dissatisfied with the amount of his sentence, as was done in this Bill? The question was, should we continue our present system, by which we allowed a great number of guilty people to escape, in order to make sure of such convictions only being obtained as were beyond the shadow of a doubt? Or should we adopt a system under which, no doubt, more convictions would be obtained, but under which verdicts would be much more lightly given, and the administration of criminal justice be conducted in the litigious way with which we were familiar in civil cases, instead of in the calm, dispassionate, and satisfactory way at present existing? Under our present system every prosecuting junior, from his earliest infancy at the Bar, was taught to conduct his case with a quasi-judicial freedom from all appeal to prejudice. This calm attitude was enforced upon him throughout the case by his companions seated around him, and, if necessary, by reprimand from the Bench. The jury received the facts in this impartial spirit from the prosecution, and were, moreover, directed to give the benefit of every reasonable doubt to the accused, in order that, with the finality of their verdict before their eyes, they should convict in those cases only in which guilt was fully and conclusively brought home. The hon. and learned Member for Dumfries (Sir R. Reid) refused to believe that jurymen or the Judicial or Magisterial Bench would do their work less carefully because there was an appeal from the conviction or sentence. And, no doubt, there would be no conscious relaxation of stringent and laborious care on their part. But, as a matter of human nature, and in reference to anxious and arduous tasks, was it not an axiom that to lessen the responsibility was to lessen the critical care with which the duty was discharged? Supposing the Bill to pass. Rules were to be drawn up not only for regulating the proceedings in the hearing of the appeal, but for the applications in Chambers, which would be open to the 1257 contending parties under Clause 7. By the removal of finality and the encouragement of interlocutory skirmishing, so much abused in civil cases, the whole basis of the administration of the criminal law would be changed. He cordially approved, however, of that portion of the Bill which gave power to grant respite of execution on appeal. As to I the power of the Appellate Court to increase sentences, he did not approve of the proposal himself; but he thought it fair to mention that, as a check on,groundless appeals, it had the sanction of Bentham's authority, who had recommended:—In a penal suit, if, in the opinion of the Judge Appellate, the appeal was groundless, and to such a degree groundless, that, in the mind of the Appellant, it cannot reasonably be supposed to have been otherwise, power to the Judge Appellate to add to any punishment susceptible of gradation, which constitutes the whole or a part of the allotted punishment (burthen of compensation included) any portion not exceeding (one-tenth) or (one-fifth) of the punishment appointed by the Judge immediate.As the Bill was based on the Report of the Judges, he should vote for the Second Reading, trusting that the important points he had referred to might be considered at a later stage.
MR. BRYNMOR JONES (Swansea Boroughs)
said that if he were condemned to death, he should not, in lodging an appeal, attach much importance to the consideration urged by the hon. and learned Member who had just sat down—namely, that he might be exhibiting a litigious spirit. [Laughter.]
§ MR. LOYD
said that the provision he had criticised had no reference to capital sentences, and he had referred not to the acused, for whom every allowance must be made, but to the backers and advisers of the accused, and those who conducted the prosecution ["Hear, hear!"]
MR. BRYNMOR JONES
said that he thought, on the whole, that the time had come when some reform should be made with regard to the revision of sentences and the appeal against criminal convictions. There was a tendency in the minds of many to confuse two questions—whether a prisoner, rightly found guilty, had been properly sentenced; and whet her the conviction itself were right. Under the present system, where the only appeal 1258 was to the Home Secretary, it was difficult to find out the reasons on which the Home Secretary acted. There were grave inconveniences in allowing a large discretion to the Home Secretary; and, on the whole, having regard to the number of our Courts of Criminal Jurisdiction, it would be expedient to provide for the revision of sentences by such a Court as the Bill proposed. He did not think that the proposal would operate to relieve the Home Secretary of a great deal of work; but that was not the object. It would relieve the Home Secretary from a very onerous and difficult responsibility—that of acting on his own discretion, without being able to give the public the reasons which guided his action. Under the Bill, the revision of sentences would be given to a Court of five Judges of the High Court. At first, no doubt, these Judges would have a large number of cases before them; but as time went on, and their decisions and the reasons for them were put on record, and were known to Judges of Assize and to Chairmen of Quarter Sessions, the work of the Appellate Court would diminish. That alone would justify a Second Reading of the Bill. He had practised for many years at Assizes and Quarter Sessions, and he believed the newspapers exaggerated the disparity of sentences. Undoubtedly a difficulty was created by the fact that Judges and Chairmen of Quarter Sessions differed with regard to the first principles on which punishment was awarded, and for that reason the reported decisions of a Court of Appeal would be of the utmost value. Although he was quite willing to admit that, so far as he could judge, it was a very rare occurrence for a prisoner to be wrongly convicted either at Quarter Sessions or the Assizes, he thought it was an anomaly in the law that while in the simplest case in the County Court a new trial might be applied for, there should be no possibility of revising verdicts in cases involving life and liberty. He was quite aware that in the criminal Courts the greatest care was taken to provide against the possiblility of convicting an innocent man, but he was not at all content with a system under which the guilty got off time after time simply to prevent the possibility of an innocent man being unjustly convicted; and he felt that the time must soon come when the House would 1259 have to consider whether our criminal procedure could not be amended in that regard. He begged the Government to consider favourably the possibility of allowing the Bill to be read a Second time. ["Hear, hear!"]
§ MR. C. J. DARLING (Deptford)
contended that the Bill was not founded on logical principles, and was a far worse Bill than that which was introduced in 1883. From the study that he had been able to give to the Bill, he had come to the conclusion that it was intended to apply to the Dick Dunn case—[laughter] and whatever might be its deficiencies and limitations, it undoubtedly would do this—it would enable the Jockey Club, who were now cudgelling their brains to find some method of appeal in the case of Hawke v. Dunn to present an appeal.
§ MR. PICKERSGILL
It could not be intended to apply to the case of Mr. Dunn, for he has not been convicted on indictment.
§ MR. DARLING
, continuing, said that some other bookmaker might be, and the Bill seemed to him to have all the vices of a Bill introduced in favour of a particular class of litigants, and, that being so, it was obvious that it must fail to commend itself to many persons in the House, at all events on his side of the House. But there were more serious objections to the Bill. On what logical ground was a person who had been indicted and convicted of stealing a pair of boots to be allowed to appeal and go before five Judges in order to have his sentence, which might have been five months, increased to six or 12, while a person condemned to death was not to have an appeal? The Bill further interfered with the prerogative of Parliament, for the Home Secretary was invited, when troubled with complaints, not to deal with them himself, but to make a common note and "refer the case to the Court." That would obviously interfere with the responsibility of the Home Secretary in the exercise of the prerogative of the Crown to inquire into sentences and convictions. He was not prepared to say that a Court of Appeal was a bad thing, but he submitted that, if one was established, it should be a real Court of Appeal, and not such a Court as was proposed in the Bill. The Bill also contained a violent attack on the rights of juries, because it provided that the Court of 1260 Appeal, though it might not order a new trial or send the case back again to the jury, could simply override the finding of the jury altogether. Such an attack on the rights of juries had not been made since Lord Eldon's time. If ever a Bill required to go to a Committee this Bill did, and he therefore could not vote against its going to a Committee. It had long ago been pointed out by Lord Rochefoucauld that the innocent were very far from receiving the protection everywhere accorded to the guilty. He denied the assertion of the hon. and learned Member for Epsom that this Bill would assimilate our law to that of France, for the Court de Cassation in France could not set aside the verdict of the jury on a question of fact. He had no exaggerated regard for the verdicts of juries, but he did not think there was any real grievance in regard to them. When the hon. and learned Member for Dumfries spoke of the difference of appeals in civil as compared with criminal cases he forgot that, whereas a suitor who imagined that he had a claim against some one could commence an action against him without previous investigation of the matter by any independent person, a criminal charge was investigated before a magistrate, and when a person was sent for trial the grand jury considered as much of the case as they regarded as material before a person was put upon his trial at all. When the case cause before the jury for trial, it was with the presumption of the innocence of the accused, which was usually utterly unwarranted by the facts—and a man whose record in the great majority of cases was in the direction of his guilt, was the only person in Court presumed to be innocent. [Laughter.] Then, with all this preliminary investigation and that presumption in his favour, counsel for the prosecution was not allowed to do his best against him, while every licence was given to counsel for the defence. Yet it rarely happened that an innocent man was convicted. He once defended a man who proved what seemed to be a remarkable alibi. He believed the man to be innocent, and he was acquitted. But the alibi turned out to be false, and the prisoner's solicitor subsequently told him, "Your interesting client, Mr. Darling, is now an American citizen." [Laughter.] 1261 The lightness of the sentences passed by Mr. Justice Hawkins had been urged as a reason for voting for this Bill. [Renewed laughter.] But if sentences were to be increased as well as diminished and uniformity brought about, Mr. Justice Hawkins's sentences would have to be levelled up. So, among other things, the Bill was intended to counteract the humanity of Mr. Justice Hawkins. For these reasons he himself had obviously no alternative if a Division took place but to vote against this Bill. ["Hear, hear!"]
§ THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Sir MATTHEW WHITE RIDLEY,) Lancashire, Blackpool
The hon. and learned Member for Deptford has made an amusing speech, but he has not, I think, convinced the House that there are any strong reasons for opposing the Second Reading of the Bill. If I were inclined to criticise the Bill severely, I think I should be justified in asserting that so important a change in the law as undoubtedly this Bill involves is a matter which ought, to be dealt with by the Government. Whether the reproduction of the Bill is a step in that direction I do not know and I cannot prophecy. But I do not complain of the hon. and learned Member who introduced this Bill, and for myself and the Government I am prepared to say that we will not oppose the Second Reading. I think it is perfectly plain from the discussion that there is a general consensus of opinion in favour of some alteration of the law, at all events, in the direction of giving some further appeal in criminal cases, whether in regard to sentences or convictions. Certainly as regards sentences, there is a general feeling that that should be done. But I think also the fact that this Bill is based in the main on the recommendations of the Judges is—although we cannot accept it without certain reservations as to the right of Members to express their own views and those of their constituents—is a strong argument in its favour, and it would be an extraordinary thing if the House were to refuse a Second Reading to such a Measure. As far as I have been able to understand this Bill and to compare it with the Report of the Council of Judges, it is substantially a reproduction of their recommendations. I can hardly conceive it possible—although the subject has 1262 been discussed by the Judges, in consequence of the pressure, doubtless, of public opinion as well as other reasons—that the House should refuse to consider in principle the recommendations so made. In 1895 a Bill which went rather further in some respects than the present Bill was read a Second time on a Wednesday afternoon without discussion or opposition, and was referred to a Select Committee. I think I may say that the Bill before us has the force of judicial authority behind it, and public opinion is in the direction of something being done to increase the power of appeal in criminal cases, not, however, to the extent given in civil cases. But the Bill is not really a Court of Criminal Appeal Bill at all. It is a Bill which in respect of sentences gives an unrestricted right of appeal to a person convicted on indictment; but, in accordance with the recommendations of the Council of Judges, it goes no further than to recommend that the Secretary of State should have an opportunity, if desired, of referring to the Court of Criminal Appeal some of the cases which at present he has solely on his own authority to dispose of. The Bill does not pretend to enable ally person convicted on an indictment to get a new trial. I understand that the universal opinion of the Judges is that there should be no new trial. I do not think anyone recommends that there should be a fresh jury or anything but the reconsideration, by the Judges of the Court of Criminal Appeal, of the facts brought out in the Courts below. While I do not desire on be-half of the Government or on my own behalf to express any opinion on the question whether there should be a Court of Criminal Appeal as properly understood, I think there is great force in the arguments adduced against this Bill from that point of view. I think it is Very likely that the sense of responsibility of juries would be very much diminished, and that when the finality of the verdict is liable to be discussed by Judges in a higher Court, verdicts will be given with a lighter heart. However that may be, I think it is evident that it is a case as to which there is a good deal of feeling and sentiment, and as to which it is desirable that the House should undertake some kind of Inquiry. 1263 On the question of inequality of sentences, so far as I have heard this afternoon, there appears to be no dissentient opinion as to the desirability of arriving at some greater equality in our sentences, if possible, by the constitution of a Court which would have power on the appeal of the defendant, or of the Attorney General, to revise the sentences. I think we must all admit that there are instances which have come before us, and of course they have come more particularly before me in the office I have the honour to hold, which are very startling, of the very different and diverse personal views which the different Judges take. Instances were given by the hon. and learned Gentleman who introduced this Bill, in a speech of remarkable clearness and moderation, which I think were brought home to many of us, but though it is proved that we cannot get rid of personal feelings in the matter of delivering sentences, still it would be desirable if you could arrive at some kind of standard or rule which would govern the punishment for the same kind of offence, so far as they can be the same in similar circumstances. Therefore, I believe there will be a general consensus of opinion that if a Court could be constituted something like that proposed and adopted in this Bill, whereby six or seven of Her Majesty's Judges, with the Lord Chief Justice at the head, should be a permanent Court to revise sentences when appealed to, you might do something practical to bring to the minds not only of Chairmen of Quarter Sessions, but also even of Her Majesty's Judges themselves, of whom I have heard some complaints made not unreasonably, that it is desirable to adopt some attempted uniformity in regard to sentences. Much has been made of the words in this clause which give power to this Court to increase sentences. I confess I see great difficulty; it is contrary to the feelings, I am persuaded, of every one who is concerned in the administration of justice that upon an appeal it should be possible to increase the punishment given in the lower Court. ["Hear, hear!"] If you are going to produce an equality of sentences, and if be true that some Judges give sentences which are too small, while others may give sentences which are too large, how can you obtain equality of sentences without levelling up? ["Hear, hear!"] 1264 That is a very practical difficulty in connection with this Bill, and this clause of the Bill; still I do feel that it would be in general accordance with the opinion and feeling in this House to say that, so far, at all events, as regards the Court constituted as it is proposed in this Bill for the purpose of remission of sentences, it would seem that Amendments which may be suggested hereafter would be a practicable and reasonable method of attempting to secure that greater equality in sentences which I believe we all desire. With reference to Clause 3, something has been said of the desire to relieve the Secretary of State from the great responsibilities which now fall upon him. I observe that this Bill does not propose to deal with the death sentence; it does not propose in any Way, except indirectly, to relieve the Secretary of State from the very arduous responsibility of advising Her Majesty on the exercise of her prerogative of mercy. I should perhaps incidentally say that, although I do not say it is an objection to the Bill, I cannot help feeling that if a sentence has been appealed to a Court of Criminal Appeal, and if that Court of Criminal Appeal, dealing with the sentence in a strictly judicial and legal manner, confirms it, it would be much more difficult for the Secretary of State, if he thinks there are equitable and moral grounds which he is also bound to consider, and has the power of recommending the Crown to exercise the prerogative of mercy. I think that is a consideration which ought not to be overlooked. I think it was the hon. Member for the Epsom Division who spoke as to the way in which this clause is drawn, and referred to the intervention of the Secretary of State in bringing the Court of Appeal to work with regard to convictions. That would really increase the work of the Home Office rather than diminish it. I think there, is great force in that objection. It casts, as I understand it, upon the Secretary of State the duty of referring to the Court of Criminal Appeal any complaints which he has received, and which he thinks ought to be dealt with. I do not for a moment mean to say that either I myself personally, or the office with which I am temporarily connected, desire in the least to shirk any of that work or that responsibility, but I do say that it seems to me, 1265 looking to the enormous number of complaints which we receive daily, and the manner in which we have to deal with them at present, and will have to deal with them in future, if this Bill passes, that there are very serious difficulties in the way. At present, of course, we require a very strong case put before us in order to take any action; but if the Secretary of State has to refer to a Court of Appeal constituted for the purpose, all complaints made to him which he thinks he is obliged to forward, he cannot refuse to forward almost every case that he receives. I do not think it would be possible for any Secretary of State to refuse to refer to this Court all the complaints which, after a little primâ facie evidence, he thought were not frivolous; if he refused I think it would be said that the Secretary of State denied access to a Court of justice; if he freely acceded to all kinds of complaints that are made—and I need hardly tell the House that the Home Office receives very great many complaints and appeals, some of which are on the face of them, even absurd—I think there would be complaints on the part of the Court of Appeal that the Secretary of State had handed over his business to the Court of Appeal, and no longer exercised that jurisdiction which he attempts, at all events, at the present moment, to exercise. I think those are serious difficulties. As I understand this clause, the Secretary of State is to be the judge of what evidence he may direct to be laid before the Court. What is that evidence to be? Is he to take the evidence of the prisoner's solicitor and a prepared case, or is he to be entitled to lay before the Court those inquiries which he is able to make from the police and from sources generally to the advantage of the prisoner, and the elucidation of facts which could not be brought out at the trial, and which would not be legal evidence in a Court at all? I am afraid that the result of such a procedure would most likely be distinctly against the innocent man whose interests my hon. and learned Friend has at heart, and also would be in favour of the rich man against the poor. ["Hear, hear!"] Supposing this question comes to be argued on the evidence submitted by the Secretary of State before this Court of Criminal Appeal, is the Secretary of State to be represented by counsel? If 1266 he is not represented by counsel, how can he justify to the Judges the reasons for some of the evidence which he lays before them? That may sound a technical objection, but I think there is some reality in it. ["Hear, hear!"] I think the hon. and learned Gentleman opposite said something about the reversal by Judges, which I understood him to say was not uncommon, of facts which have been found in several cases in a lower Court. Of course, my observation and experience differ widely from his. I have always understood that there was the greatest possible reluctance on the part of the Judges to reverse any finding upon facts which had been found in a lower Court. [An HON. MEMBER: "By jury."]
§ SIR ROBERT REID
That is so in the last few years particularly.
§ SIR MATTHEW WHITE RIDLEY
I referred to findings by jury in a lower Court. If this is intended to be a serious Court of Appeal, and six or seven of Her Majesty's Judges, with the Lord Chief Justice at their head, are to go on anything like the same practice they have adopted in the last few years, there is exceedingly little probability that any of those Judges would face with any equanimity the idea of reversing facts found by a jury. Upon questions of law it is probable that all will agree that there are sufficient grounds for revising at present, but nobody suggests that this has regard to questions of law. I do not think you can get your Court of Criminal Appeal, as suggested in this Bill, through a Court of Judges to review facts upon depositions and notes of Judges and so forth. You would be putting upon Her Majesty's Judges a new kind of work, and a kind of work which hitherto they have not been peculiarly willing to undertake. That they would do it I do not doubt. I am glad that this Bill on the face of it, and the speeches that have recommended it, do not propose to interfere in any way with the responsibility of the Secretary of State in recommending the prerogative of mercy. A more difficult, a more responsible, or a more arduous task could hardly be conceived. ["Hear, hear!"] But I believe it is the general feeling of the House and of the country that, whatever Court of Criminal Appeal may be instituted, you must, in the long run, rely in such cases upon the personal 1267 investigation, with such assistance as he may get, of the unfortunate person who occupies the position of Home Secretary for the time being. ["Hear, hear!"] The Bill, then, does not cover the most serious and difficult part of the duties of the Secretary of State—namely, his dealing with capital cases—and I question how far it will affect his dealing with minor criminal cases. I am afraid I would horrify the House if I were to tell the number of cases that are dealt with by the Home Office, practically, as a Court of Appeal, and of the number of sentences which are brought to some kind of equality by the exercise of the Royal prerogative. Considering the large number of communications I receive every week from Members of the House in reference to such cases, and the amount of time their consideration occupies, I should be pleased indeed if such an institution as is proposed in this Bill would relieve the Home Secretary of some of his duties. I know there are many experienced lawyers—many as experienced in the criminal law as my hon. and learned Friend the Member for Dumfries—who will regard with, great dismay the institution of a Court of Criminal Appeal. ["Hear, hear!"] But matters have come to such a pass, and, having regard to the feeling of Parliament, which has been expressed on previous occasions, and to the fact that to-day, without scarcely a dissentient voice, the House has so far pronounced in favour of the Bill, which, after all, is based on the recommendations of the Judges, than whom no one has a greater right to suggest such legislation, I am persuaded that under these circumstances the Government ought to accept the Second Reading of the Bill. ["Hear, hear!"] At the same time, I think the Bill is full of so many complicated and difficult questions that it could not be satisfactorily dealt with, certainly not by the Grand Committee on Law, and I doubt even by a Committee of this House. ["Hear, hear!"] I think it ought to be dealt with by a Select Committee, for there are many points on which evidence should be heard, and without which evidence the project could make no further advance. Therefore, on the part of the Government, I assent to the Second Reading of the Bill on the understanding that it is to be referred to a Select Committee. ["Hear, hear!"]
§ SIR EDWARD CLARKE (Plymouth)
said that the House had heard a most interesting and weighty speech from the Home Secretary—["hear, hear!"]—many parts of which called for the consideration of the promoters of the Bill before they could attempt to carry the Measure forward in its present form. He did not complain of the action of the Government in allowing the Bill to be read a Second time, but, in view of future Debates on the subject, he desired now to make clear the very definite ideas which he had entertained for a very long time in regard to the proposal to establish a Court of Criminal Appeal. In 1883 a Bill to establish a Court of Appeal to deal only with death sentences was brought in by the then Attorney General, the present Lord James of Hereford. In the course of the Debate on that Bill he—following a very strong speech by the present Lord Chancellor against the proposal to establish a Court of Criminal Appeal—mentioned the question of the revision of sentences, and said that he thought such revision might very well be dealt with by the establishment of some such Court. He remembered that Mr. Bright, who spoke to him subsequently, expressed himself strongly in favour of that proposal. But he was bound to say that the experience of the 14 years which had passed since 1883 had very much diminished the strength of his opinion in favour of any Court for the revision of sentences. ["Hear, hear!"] He thought the discrepancy between sentences was very often more apparent than real, and if the whole facts of each case and the circumstances with which the Judge who pronounced the sentence had acquainted himself were generally known, it would be found that there were few variations from the rule that the sentence should be fairly apportioned to the offence committed. ["Hear, hear!"] There were, no doubt, some extravagant and heavy sentences, but these exceptional cases, which were usually associated with the names of certain Judges, were dealt with by the Home Secretary; and though it might be possible to have a Court in which those extravagant sentences could be reduced, there were some important points to be considered before any such Court was established. In the first place, was power to be given to the Court to increase sentences as well as to reduce 1269 sentences? He believed that public opinion would be against giving the Court the power to increase as well as to diminish sentences. But then, if sentences could not be increased by the Court, an enormous number of appeals would result, because prisoners would have the chance of getting a remission of their sentences without any risk of having them increased. Again, if such a Court was to be of any use at all, recourse to it must be absolutely without any cost to the prisoner, because in the greater number of cases prisoners had no means at all of paying the expenses of an appeal. Therefore, the proposal came to this—that they must provide at the expense of the country the means for prisoners to appeal against sentences, the prisoners having the assurance that their sentences could not be increased and might be reduced. His hon. Friend the Member for Oldham had pointed out that in civil cases litigants had the right to appeal, and he urged that in criminal cases prisoners should in like manner have an appeal against their conviction. The Home Secretary had pointed out that the Bill did not meet that point; but it was, no doubt, the popular idea of a Court of Criminal Appeal, but if such a Court were established, what would the result be? During the Committee stage of the Bill of 1883 to establish a Court of Appeal from death sentences, an Amendment was moved to extend the scope of the Bill to all criminal cases, but the then Attorney General pointed out that in the previous year there had been 12,000 convictions, and assuming there would be appeals in a fourth of the whole, there would therefore be 3,000 appeals to be dealt with, which would take up all the time of the Judges to the exclusion of all other legal business. That might be an overstatement of the case, but the risk of establishing such a Court was really a very serious one. He denied that there was an case for setting up such a tribunal. It was true there were cases in which innocent persons were convicted. He did not think they were many in number. He thought he could count a dozen cases in which he was satisfied that innocent persons had been convicted, but in those cases subsequent proceedings had convinced the Home Secretary that the convictions were irregular, and the prisoners were released. But these cases were, he 1270 believed, due to the existence of the rule which prevented either the prisoner or the husband or wife of the prisoner from giving evidence at the trial. ["Hear, hear!"] He hoped, therefore, that the Attorney General would be able to find an early opportunity to proceed with the Bill which dealt with that rule, for he did not remember a single case of improper conviction which would have happened if the prisoner or the husband or wife had been eligible for examination. Before legislating as was now proposed, it would be well to try that other remedy, and he believed that when that remedy had been adopted it would be found that the grievance remaining to be dealt with was so small as to render it entirely unnecessary for that House to legislate for the establishment of a Court of Criminal Appeal. But he not only thought that the establishment of such a Court was unnecessary; it would be dangerous as well. If they were to establish an Appeal Court, to which any convicted person might go to ask for a new trial, they would interfere very much with the prompt execution of justice; au enormous advantage would, of course, be given to the criminal who either had plenty of money, or whose friends were ready to spend money on his behalf, mid an immensely increased judicial staff would be required. The change would increase largely the volume and expense of the administration of criminal justice, and, in his opinion, would not really secure better justice. In fact, it would be likely to have the precisely opposite result. It was the present belief of the jury that their verdict was au irrevocable verdict that made them listen so anxiously to the evidence and induced theta to accept so willingly and to act upon the caution of the Judge not to decide against a prisoner unless they were quite satisfied with the evidence against him. Once enable jurymen who were standing out for a conviction to say to those who were dissatisfied with the evidence, "You need not trouble; the case will go to the Court of Appeal," and the dissatisfied jurors would give in. Allow that to be the case, and they would take off from juries that stringent pressure of immediate responsibility in the result which operated to produce the satisfactory administration of criminal justice which we enjoyed at present. He 1271 made no complaint against the Government for allowing the Bill to be read a Second time, but he confessed he thought that the acceptance of the Measure was rather an example of the Wednesday flabbiness in that House of the afternoon mind. [Laughter.] The Government, however, were accepting the Bill only with a view to further examination and investigation. For his part, he entertained the strongest opinion against the establishment of any Court of Criminal Appeal, and he had great doubts whether such a Court, even if limited to the remission of sentences, would not be found mischievous rather than beneficial. ["Hear, hear!"]
§ MR. W. T. HOWELL (Denbigh Boroughs)
supported the Motion for the Second Reading. The proposal to establish a Court of Criminal Appeal had a large measure of public support. From time to time, as they all knew, there had occurred criminal cases of a sensational character, and afterwards the public had taken sides for and against the prisoners. The fact that no Court existed for the review of convictions in criminal cases had led to a very scandalous result. He referred to the practice of appealing from the verdicts of juries to the Press. The newspaper reporter in search of copy made capital out of the fact that a very large number of people sided with the criminal who had been found guilty. As long as we had no Criminal Appeal Court this scandal would, he believed, continue. In civil cases Judges were found wrong upon points of law, and juries wrong on points of fact. If, then, in civil cases Judges and juries could go wrong, how could it be said that in criminal cases the possibility of mistakes must be excluded? By the establishment of the Court of Crown Cases Reserved the fallibility of Judges in regard to questions of law in criminal cases had been admitted, and he failed to see how any one could insist on the infallibility of juries upon questions of fact. It must be borne in mind that the Home Secretary could not reverse a verdict of guilty. All he could do was to obtain Her Majesty's pardon for the prisoner, and the grounds and evidence upon which the Home Secretary acted remained unknown to the public. The supporters of the Bill wanted the verdict recorded against an innocent prisoner put on one 1272 side, and that a verdict of not guilty should be entered in its place. He agreed that the Bill in its present form might not carry out efficiently the object which its promoters had in view, and that indiscriminate appeals by prisoners ought not to be militated. With reference to the argument that juries would cease to fulfil their duties their duties as conscientiously as they did now if a Criminal Appeal Court were set up, he would point out that he had never heard it suggested that juries at Nisi Prius did not do their duties because there were Courts of Appeal for civil suitors. He failed, therefore, to see the strength of that argument.
§ SIR HENRY HOWORTH (Salford, S.)
said it seemed to him that the analogy between appeals in criminal and in civil cases failed at every point. In civil cases appeals on questions of fact led to a new trial; but no new trial of any kind was suggested in the Bill. In almost every instance, appeals in civil cases were on questions of law, but no one supposed that the appeals in criminal cases would be on questions of law at all, but simply to find a possible escape from the original sentence. It was not the equation of the judges which was the only cause of disparity of sentences. Those who had had experience as counsel, or as members of a Grand July, would know that it was only when they got behind the screen that they could fully realise how the gravity of a crime did not depend upon the actual circumstances. The circumstances of two cases might be almost the same, and yet there ought to be disparity in the punishment. It seemed to him that one of the great difficulties with regard to the equation of the judges was introduced when the reform was insisted upon which involved a large number of judges going circuit to try criminal cases, some of them after having spent the whole of their lives in Chancery Courts, far away from any criminal jurisdiction.
§ THE ATTORNEY GENERAL
That was abolished some years ago.
§ SIR HENRY HOWORTH
said that the existence of such a state of things was one of the reasons why an agitation was raised some years ago about the disparity of sentences by different judges. But the supreme difficulty was the question, at whose instance was the appeal to be made? ["Hear, hear!"] It was said that, if the Court of Criminal Appeal was 1273 allowed to enlarge as well as diminish sentences, they held, in terrorem, over every appellant the possibility of his sentence being increased, and that therefore the number of appeals would be diminished. The cases in which sentences would be increased would be so few, and the idea would be secretary to the public conscience, that the possibility might be left out of consideration altogether. If the initiative were left to the criminal, there must, necessarily, be an appeal in every case, unless they wished to create a great feeling of injustice and dissatisfaction all over the country. ["Hear, hear!"] How was it possible to provide the Home Office, or any office in London, with the materials on which they were to act so as to do it equitably and fairly to all classes of criminals, unless they gave the initiative to the Judge who tried the case, or, perhaps, if they wanted to create a revolution in the whole practice, to the foreman of the jury? The Bill failed absolutely to deal with this most critical point. He was sorry to hear the Home Secretary's strong objection to this Court of Appeal interfering in any way with his own prerogative of mercy, for he thought there was one part of his work in which that Court could be of essential service to a Home Secretary. What many felt to be a difficulty was, that prisoners who had friends could get easy access to the Home Office by the Press, or through the House or in other ways get their cases brought before the country, while those who were friendless had no such opportunities, and could not exercise the same privilege or have the same remedy; and he believed that a Court of Appeal would be of advantage if it had the power to bring before the Home Secretary the cases of prisoners who had no friends to press their claims. Indeed, that would be the only real advantage, so far as he could see, of such a Court. It would, he believed, be inoperative aril futile as a method of correcting the personal equation of the Judges, for the re-trial would be before men who would not have the witnesses—upon whose demeanour under examination so much depended—before them, and who would not have seen the demeanour of the accused himself. ["Hear, hear!"] A Court of Appeal, he could not help feeling, would disturb the great confidence the people now had in 1274 the findings of juries and Judges, by diminishing that feeling of responsibility both juries and Judges now felt, which induced them to give a most critical attention to the cases brought before them by the knowledge that a Court existed to re-try their findings. On these grounds he could not support a Bill which left out the only effective remedy, and which would set up a remedy that must be futile and inoperative.
§ SIR HENRY FOWLER (Wolverhampton, E.)
said there was our aspect of the question the gravity of which had been overlooked by his hon. Friend who had just sat down, and that was the conviction of an innocent man or an excessive sentence upon a guilty man. The argument of the hon. and learned Member for Plymouth cut both ways. In a civil case, whether the cause was trivial or serious, there was the opportunity of revision, and the judgment was, so to speak, not all irrevocable one. It often was a pure matter of pounds, shilling's, and pence. It might or might not affect character. But the judgment in a criminal case blasts a man's character for the rest of his life, and affects even his wife and family. He could conceive no stronger case than that which existed for an appeal in criminal cases. He was not enamoured, however, of some of the details of the Bill, and he cordially approved of the decision of the Government to send the Bill to a Select Committee, where it would receive thorough investigation. He differed in toto from the hon. Gentleman opposite in reference to the equation of Judges. One of the great grievances in the administration of English law was the discrepancy of sentences. He agreed that when we had a much-needed reform, one desired by every law officer for the last 20 years, and consistently neglected by Conservative and Liberal Governments alike—namely, the reform which would enable the prisoner to tell his own story—the chances of improper conviction would be very much reduced. Reference had been made to the sentences of certain Judges who had from their previous training, or who had not been familiar, perhaps, with the administration of criminal law; but the difficulty was not confined to one class of Judges. Judges were, after all, human; they had their idiosyncrasies and prejudices. He was not speaking of any 1275 living Judge; but there had been Judges in this country who had, for example, given an extreme importance to all offences against property. Punishments had been imposed absolutely savage in their severity for these offences. When he was at the Home Office a Judge, now dead, once visited Portland for the first time in his life. He had the candour when he came back to say that if he had had the slightest idea what the punishment of penal servitude was like, he would not have passed many of the sentences he had passed during the course of his long life. The punishments in this country were perhaps the severest which were inflicted in any country in Europe. There was another class of Judges who, very often from religious motives or extreme ethical reasons, dealt with a certain class of offences with extreme severity, and there were other Judges who dealt with them on different lines. One Judge, now dead, told him the story of a trial in the West Riding of Yorkshire and another trial in Staffordshire. At the same Assize, for the same offence, committed in similar circumstances, one Judge was giving two years' imprisonment and the other Judge was giving 20 years' penal servitude in several cases. This was a positive grievance which ran through all our administration. The Judges had no right to stamp the administration of our criminal law with their own idiosyncrasies, and he believed that the establishment of a Court of Criminal Appeal would in time set up a sort of code of punishments not erring on the side of severity. It would be a kind of understood rule in guiding Judges in passing sentences, and it would be a great boon to the whole community. A few years ago a great reform was effected which was believed to be impossible. Judges had a theory that every offence against the Post Office, no matter what the circumstances, must be punished with not less than five years' penal servitude. The public conscience was shocked to find that a postmistress was sentenced to such terms of imprisonment for stealing eighteenpence worth of stamps. The late Mr. Raikes, when the subject was raised 1276 in Committee, said that he did not desire, but deprecated, this severity, because it did not promote the security of the public or benefit the administration of the Post Office; and those sentences had passed away. While he attached importance to a properly-guarded right of appeal against conviction, he attached equal importance to revision of sentences so as to procure something like a uniform principle of administration of the criminal law in order that Judges might feel, if they carried out any special view they might have in dealing with any particular offence, that their sentences would be reviewed by four or five of their colleagues, who might possibly take a different view. He thought that the Government had done wisely in accepting the principle of the Bill and in reserving the question of details. When the Bill had undergone a thorough examination by a competent Select Committee the House might see its way to make a safe, humane, and practical improvement in the administration of the criminal law. [Cheers.]
§ THE ATTORNEY GENERAL
thought that the hon. Member who Moved the Bill would be satisfied with the discussion that had taken place, even if the Bill proceeded no further. There were serious objections to some of the provisions of the Bill, objections which went perhaps a little further than those matters which could be dealt with by a Committee. He had nothing to add to the weighty speech of the Home Secretary in dealing with the main features of the Bill, but many of the speeches which had been made pointed to a reform which went further than the Bill. He was not certain that it was possible within the limits of any reasonable prophecy to think that reform could be brought about—namely, a Court of Criminal Appeal for all cases. Many other considerations would have to be borne in mind and weighed before they could approach that point. But there was one point to which sufficient attention had not been paid. The late Attorney General had spoken against the suggestion that sentences should be increased, 1277 but it was really almost part of the principle of this Bill. The hon. and learned Member for Plymouth had pointed out that if they were going to say to every criminal that he could apply by way of appeal to have his sentence reduced, the temptation to appeal would be almost overwhelming. [Cheers.] There was another consideration: Why should not a man try to get a sentence reduced when it could not be increased? Involved in the principle of the Bill also was the fact that this appeal must be at the expense of the nation, and the Chancellor of the Exchequer might have something to say to this branch of the subject, because however worked there must be considerable extra charge on the public revenue in respect of the administration of justice. Otherwise they would be putting a monstrous privilege in the hands of the rich criminal which they denied to the poor criminal. A man charged with an offence who was rich, or who had wealthy friends, would get an appeal, while it would be denied to the poorer man who might have stronger grounds for appealing. Thus the supporters of the Bill had supported a scheme which, if it was to be effective at all, must be carried out in circumstances which would naturally induce all prisoners, or a large majority of them, to try an appeal at a considerable cost to the taxpayer. In all probability the object of the hon. Member had been as much attained by the attention called to the subject, and the sympathy evoked with the general proposals, as by a minute and detailed discussion of the provisions of the Bill. No one felt more strongly than he did the monstrous discrepancies in sentences passed, but he was not at all satisfied that the particular tribunal suggested was the best one to procure the result desired. It was attractive no doubt. It was said that there would be a kind of code of sentences laid down and that the idiosyncrasies of particular Judges would be corrected by his colleagues. But there were other considerations which must not be lost sight 1278 of. A newspaper report of a crime and sentence very often gave an unfair representation of what the case was. The demeanour of the prisoner, the circumstances of the crime, and other general considerations which men of the world would bear in mind in fixing a sentence were more effective guides in fixing what the sentence ought to be. Certain rules might be laid down, but he did not believe that any real, effective judgments could be formed except by the moderation of the Judge himself, by his experience, and the circumstances of the particular case. Personally on more than one occasion he had had before him the circumstances of very varying sentences. He had known two or three varying convictions for the same class of offence passed by different Judges, but he had found not infrequently that the circumstances of the cases, when thoroughly understood, were so different that the apparent discrepancy was to a large extent removed. ["Hear, hear!"] He did not say there had not been discrepancies, but he would say he did not himself believe that the suggested Court of four or five Judges would be the best tribunal in these matters. [" Hear, hear! "] In the course of the Debate he thought that scant justice had been paid to the way in which the, duties of reviewing sentences was now performed in the Home Office. Sentences—other than those which referred to capital punishment—came up for revision in the ordinary course, and also from the point of view of considering whether or not they had been too severe. On such occasions the Home Office had opportunities of putting itself more in the position of the Judge at the trial by learning from perfectly trust worthy testimony the antecedents of the prisoners, and all the circumstances connected with the crime that, sometimes by accident and sometimes because they were not known at the time, were not brought out at the trial. He was by no means certain that the tribunal of four Judges would be able to use that thoroughly 1279 trustworthy information which was at the disposal of the Home Office. Whilst he by no means wished to deprecate any change in the present system which the House or a Committee in its wisdom might recommend, he thought not enough had been made of the way in which from day to day the jurisdiction of the Home Secretary was exercised in connection with minor as distinguished from capital offences. ["Hear, hear!"] The Home Secretary did not of course, care to say much on this point, but the right hon. Gentleman did remind the House that a great portion of the time of the officials of the Home Office was occupied in investigating these cases, in giving redress when it ought to be given, and it was seldom, indeed, that they heard any complaint to the way in which the functions of the Home Oilier in the reviewing of sentences were carried out. [Cheers.] He must enter his respectful protest against the language of the hon. Member for the Salford Division, who had suggested that the ears of the Home Office was mostly open to the rich and those who had friends. That certainly was not his experience. [Cheers.]
§ SIR H. HOWORTH
I ask the hon. and learned Gentleman to allow me to explain. I did not say anything of the kind; but what I did say was that the criminal who has friends, and the criminal who has power behind him in the shape of friends in this House and in the newspapers is in a position entirely different to the helpless and friendless in all cases of revision of sentences, and notably in regard to cases which can be brought before the Home Office. That is what I said and what I maintain. ["Hear, hear!"]
§ THE ATTORNEY GENERAL
was glad to have elicited this exploitation from the hon. Baronet, which he, of course, at once accepted. What he desired to say was that, from what he had seen of the actual work of the Home Office, he was satisfied that in any case in which there was the least ground for supposing there 1280 had been a failure of justice, either from the point of view of a wrong conviction or excessive sentence, it was looked into at once, whoever might be the person whose case was brought forward. ["Hear, hear!"] He confessed he thought this Debate had risen above the level of an ordinary Wednesday's Debate. The matter that had been raised was, it seemed to him, one which deserved consideration by Parliament, and he hoped the speeches which had been made might lead the House of Commons to be more willing to entertain proposals and Amendments in the criminal law of the country. [Cheers.]
MR. GIBSON BOWLES (Lynn Regis)
said the Home Secretary and the Attorney General had proved to demonstration that this was a bad and unworkable Bill, and yet they told them that the Government were going to support it. He thought it was not creditable to the Government, or to the two Members of it who had spoken, that they should have produced such powerful arguments against the Bill, and then announced that they were going to support it. Every kind of learned gentleman had spoken about this Bill—the Judges, counsel, the solicitor, and his London agent—and the only person who had not spoken was the prisoner, for whom he claimed to speak. He supposed it was the only capacity in which he should ever come within the purview of the Bill, and, speaking for the prisoner, he seriously said he would rather be judged by a petty jury of his fellow-men, for any offence whatever, than he would be by any five ermined Judges. This Bill aimed at destroying the British jury system, and it struck at the very root of English law. Why did he say he would rather be tried by a jury? Because he knew that the condition of unanimity being required of the jury, he was certain of getting his case discussed when the jurors retired. They could never gain from one Judge, much less than five, the security and certainty of discussion, and, still more, that sense of 1281 responsibility which always appertained to a jury, to whom he would rather commit himself than to any bench of Judges who ever lived. If ever there was a case for criminal appeal it was the strongest in regard to those cases in which sentence of death had been passed; but whereas by the Bill, if a man was sentenced to be whipped or flogged he was to be allowed to appeal, if he was sentenced to be hanged he must go without appeal at all. Could anything show the monstrous absurdity of the Bill more than that? The inequality that appeared in sentences now was rather apparent than real, there being circumstances and evidence before the Judge at the trial which did not come before the public. He asked the House what would be the effect if this Court of Criminal Appeal were invented and if cases were remitted from the Courts below to the Judges for revision? Suppose that out of five Judges three decided one way and two another in a very serious case, would not the public mind be absolutely revolted at the idea that a man was to be whipped or flogged, or undergo some other degrading punishment, by a verdict not of a unanimous jury of his countrymen, but by a majority of Judges? The unanimity required in a jury was an absolute security for discussion, for if one man stood out he required some good reason to be advanced before he gave way. He had, he was proud to say, been a juror himself. When he went into the jury box he was one against 11, but he let his fellow-countrymen understand they would not go back until they had heard all the arguments on his side. They heard them, and the result was, that he convinced his 11 friends, and they went back and gave in the box a unanimous verdict in accordance with the opinion that he alone at first had formed. He mentioned that to show the way in which the necessity for unanimity in a jury made it absolutely necessary that the matter should be discussed.
§ MR. PICKERSGILL
rose in his place, and claimed to move, "That the Question be now put."
§ Question put, "That the Question be now put."
§ The House divided:—Ayes, 147; Noes, 86.—(Division List, No. 144.)
§ Question put accordingly, "That the Bill be now Read a Second time."
§ The House divided:—Ayes, 129; Noes, 85.—(Division List, No. 145.)
§ Bill Read a Second time.
§ MR. PICKERSGILL
moved, "That the Bill be committed to a Select Committee."
§ And, it being after Half-past Five of the Clock, and objection being taken to further proceeding, the Debate stood adjourned.
§ Debate to be resumed To-morrow.