§ THE ATTORNEY GENERAL (Sir RICHARD WEBSTER,) Isle of Wight
I beg to move the Second Reading of this Bill. I am not unmindful of the fact that this Bill has been before the House on several occasions, but I think it will shorten the Debate and facilitate discus-that this Bill has been before the House the reasons which have led Her Majesty's Government to again propose that which is undoubtedly a very important change in the law. Sir, it is well known to the House that we have now, for a great many years, been living, so to speak, under two systems—one the result of the growth of years, by which an accused person in a criminal case is not allowed to give evidence; another, that which has grown up for a period of 25 years—to be strictly accurate, since 1872—whereby criminals have been allowed to give evidence on their own behalf. 978 We stand, therefore, in the position to-day—and this will not be disputed by those who oppose the change—that there have been 26 Acts of Parliament passed at various times during the past 25 years by the express provisions of which prisoners are allowed to give evidence on their own behalf, and those who oppose the amendment of the law which we advocate to-day admit that we ought either to extend the provisions to all offences or to repeal those 26 Acts of Parliament. And yet, Mr. Speaker, as I shall have occasion to remind the House, no responsible Member of this House has ever suggested the repeal of those provisions in any one instance. Now, Sir, I do not propose to repeat at length what I said to the House on the last occasion, as to the anomalies of the present position. They have been pointed out by lawyers of distinction, and by Members of this House. The fact is that in many cases, the question whether or not the accused can give evidence depends upon the form of indictment brought against him. I am not going to base the advocacy of this Bill on any specific case, but it does seem to me a most remarkable fact that if a man is charged with entering a house and committing a rape he can give evidence upon his own behalf, whereas if he is charged with committing murder he cannot give evidence. I say it is utterly impossible to justify this state of things. I therefore start with the initial argument that we have side by side two systems, one allowing prisoners to give evidence and another preventing them from giving evidence, and that the question whether or not a prisoner should be allowed to give his own version of the affair in many cases depends upon the nature of the charge framed against him by the prosecuting counsel. Now, Sir, I have a word or two to say about this question of the two systems. We have a great deal of experience, not only from our own country, but other countries. We have the experience of practically all the States of America, we have the experience of all our self-governing Colonies, and we have the experience of a great many of our Crown Colonies; and I am not aware that either judge or lawyer, with one exception, has ever 979 advocated a change of the system under which a prisoner can give evidence. Therefore all the civilised countries in which prisoners can give evidence are not only satisfied with the system, but they have not once suggested any alteration of it, or any going back to that which is in force in this country at the present time. Sir, what is the history of this matter? The attempt to make the change I now propose dates as far back as 1884, when a Bill was introduced by Sir Henry James and the right hon. Gentleman the Member for West Monmouthshire. But I am not going to base my advocacy of the Measure upon individual opinion; I think we ought to deal with this matter as one of principle. I want the House to consider the matter from the point of view of public necessity. I do not wish to shield myself under the opinion of law officers or judges; I want to deal with the matter as one of right or wrong. My hon. Friend the Member for King's Lynn has suggested that the motive of the Bill is to extract evidence from prisoners. [Mr. GIBSON BOWLES: I never suggested any such motive.] My object in bringing in this Bill is to give the fullest protection to innocent persons. I am perfectly satisfied that no innocent man will shrink from the opportunity of giving evidence, and of submitting himself to cross-examination. I could give many instances. I am not going to weary the House with many, but there are some so striking that I think it right to recall them to the House. Under the Explosives Act—brought in by the right hon. Gentleman the Member for West Monmouthshire in 1883—prisoners were allowed to give evidence. There have been several prosecutions under that Act. I prosecuted the Walsall prisoners in 1891 or 1892. The evidence was equally strong against all the prisoners, and I do not hesitate to say that if there had not been this power of giving evidence all the prisoners would now be undergoing terms of penal servitude. Two of these prisoners—by no means educated men; from many points of view they were illiterate—claimed to give evidence, and made it pretty clear to the jury that they were dupes, and had not originally known the purpose for which the bombs 980 were contemplated. These men were acquitted, but I can assure the House that had they not been able to give evidence they would assuredly be now in penal servitude. [Mr. T. M. HEALY: So they ought to be.] The hon. and learned Member will have an opportunity of addressing the House. The jury found the men innocent, and I fail to see on what ground it can possibly be said such men ought to be undergoing penal servitude at the present time. Again, there is a case in which the late Sir Frank Lock-wood and myself were engaged five or six years ago. A man was indicted for fraud and sentenced to six months' imprisonment. Another action was brought in upon exactly the same facts, but in this case the prisoner was able to tell his own story. The jury stopped the case, and Lord Coleridge stated from the Bench that had the man been able to give evidence on the criminal charge he could never have been convicted. Lord Coleridge also referred to the case in the House of Lords. I say, with great respect to the House, that two or three such cases as that—cases which come from one's own knowledge and one's own experience—are ample justification for a Bill of this kind. But there are other cases. There was a case which was conducted by the present Lord Chief Justice, who defended a man from the charge brought against him in connection with improper conduct with a number of boys, and both the Lord Chief Justice and Sir Harry Poland stated that the man's conviction was an absolute certainty if he could not give evidence for himself. That man went into the box, gave his own account, and was acquitted. There cannot be a shadow of doubt that there are cases—not, I hope, frequent—of innocent persons being convicted because they are not able to give evidence on their own behalf. We have now had 13 years' experience of the Criminal Law Amendment Act, under which a considerable number of persons have been examined on their own behalf, and I have it from more than one of Her Majesty's Judges, and from Recorders of position, too, that in not a few cases, in their opinion, prisoners would undoubtedly have been convicted if they had not given evidence on 981 their own behalf. Now, the hon. Members who oppose this Bill are in a dilemma, that either these persons are innocent or they are guilty. There should be every safeguard by which the acquittal of innocent persons can be secured. I see the hon. Member for Longford has entered the House; I may appeal to him. In Canada prisoners have for some time been allowed to give evidence for themselves, and there has been no suggestion that the privilege should be discontinued. Now, Mr. Speaker, I have only one serious opponent, and that is a gentleman whom I refer to with all respect. I am, however, convinced that Sir Herbert Stephen is mistaken in his statement that of about 200 prisoners who are annually tried in the Northern Circuit, in cases in which they give evidence on their own behalf, four or five every year are convicted because they give evidence. From the point of view of numbers alone, Sir Herbert Stephen is wrong, for the statistics furnished from the Home Office show that not more than 100 prisoners who give evidence for themselves are tried annually at the Northern Circuit. I will tell the House what is the experience of the Home Office in this respect. I cannot do better, perhaps, than read the statement of the Home Office, which was read by the Lord Chancellor when this Bill was in another place—The Secretary of State has no ground for believing that there are any appreciable number of cases in which innocent defendants have been convicted in consequence of having proffered themselves in evidence. Among the numerous pleas brought forward, it is very seldom, if ever, urged that the prisoner had been prejudiced at the trial by giving evidence; and the Secretary of State cannot recall a single instance in which such a plea has been made a ground for advising a total or partial remission of sentence. Scarcely a day passes without one petition at least being received at this office, from either a prisoner, or the friends of a prisoner, who has been convicted in a case in which he might have given evidence in his own behalf, and if it were a fact that in cases of this kind the law of evidence has wrought injustice to innocent defendants the Secretary of State thinks it certain that the fact would have been brought to the notice of his Department. The entire absence of any evidence in the experience of the office in support of Sir Herbert Stephen's statement seems to him fairly strong evidence that it is not common under the existing law for innocent defendants to prejudice their case by giving evidence on their own behalf.982 Mr. Speaker, I would have appealed to the late Home Secretary if he had been present, but I myself am quite satisfied that it would be impossible to produce any facts which would justify the statement that innocent persons have been convicted because allowed to give evidence on their own behalf. It is a matter of comparative indifference to me if persons who are really guilty are convicted so long as perfect justice is done to the innocent and their interests are safeguarded as far as possible. It is because the promoters of the Bill are able to gauge—and that with considerable accuracy—what would be the effect upon the chances of innocent prisoners if they are allowed to give evidence on their own behalf that I press so strongly that the experience of all concerned in the administration of the criminal law points to the necessity for a change of the law. I now come to that part of the Bill which enables a wife to give evidence for her husband. It is astonishing to me that we should so long have prevented the wife of a man from giving evidence for him if he wishes it and she wishes it. I notice that the opponents of the other parts of the Bill have scarcely anything to say against this particular point. The position of things to-day is grotesque. Take the case of a bonâ-fide and truthful alibi. A man may call as witness on his behalf a woman with whom he has been living, but with whom he has not gone through the ceremony of marriage, but cannot call his lawful wife. There are instances on record where a woman has been acquitted because she was alleged to be the wife of the other prisoner, and in the next case called to give evidence because shown not to be his wife. There is one important point bearing on this part of the case which will not be overlooked by those who have studied the subject. Take the case which has recently been called attention to, of a wife who has forged her husband's name. At the present time the husband cannot be called in such a case, and the wife cannot be called in her own defence. This shows that we have too long delayed a change in the law which careful and thorough examination of the case shows is urgently demanded. Now, the principal argument of the opponents of the Bill is that the onus of proof in criminal trial would be shifted, and that it will no 983 longer be the duty of the prosecution to prove their case. Why should it be so? There is nothing to justify the argument that to allow a prisoner to give evidence the presumption of innocence would be altered in the least degree. Exactly the same thing was said years ago, when it was proposed to make a similar change in our civil procedure—the same fears and anxieties were entertained. How is it that, although there have been hundreds of cases tried in which prisoners have given evidence, it has not been considered that any change has yet been brought about with regard to the onus of proof? I have been most careful to make inquiries of the judges, regardless of whether they agree with the proposed change, and one and all consider that, in cases in which prisoners are allowed to give evidence, it has not made any change with respect to the onus of proof, but the prosecution is still considered to be under the same obligation to prove their case. It is almost impossible to imagine a really innocent person who knows the true facts, who would not be desirous to tell his own story with the same solemnity as other witnesses who have given their evidence. Now, Sir, it has been said that the prisoner's statement before the magistrate, and his statement from the dock, have the same effect. As far as I can judge, I deny it altogether. Certainly, the statement from the dock cannot take the place of evidence given before the jury in the witness box, where the demeanour of the witness will be regarded, and his answers to questions in cross-examination watched. As to the statement from the dock, why should a prisoner be called upon for a statement from the dock before he is convicted? Why should he not be regarded as innocent until found guilty, and allowed to give evidence as an untainted witness? It is said that accused persons would lie, although innocent, and would be convicted because they have told a false story. Well, assume an innocent person. He knows what the facts are, and is much more likely to tell a plain, straightforward story than one which, by cross-examination, can be shown to be untrue. Some hon. Members desire to see the Indian practice adopted by judges, in this country in cross-examining prisoners, but I hope that we shall never have that 984 duty cast upon our judges. My hon. and learned Friend the Member for Leamington has made a very able argument in support of this plan, but we do not want this system adopted, for the judges now protect prisoners to the utmost of their capacity, and will continue to do so; but I think we ought to make a change in the law, and amend its complicity by putting all prisoners in the same position. There is only one other point which I need go into, and that is the question of the limit of cross-examination. We have been very severely criticised upon this, because we have inserted in this Bill a provision that the prisoner should not be asked whether he had been convicted on any previous offence, unless it is necessary in order to establish the offence with which he was charged. There is a section of those who wish for a change in the law who desire that there should be unlimited power of cross-examination. There is a great deal to be said on both sides. The reasons which have led us to take the view embodied in the Bill are that, according to the law of England, the offence for which a man is tried is the offence with which he is being charged, and not any other offence. At present previous convictions are only allowed to be given in evidence after the prisoner has been convicted of the offence with which he is charged; they are not allowed to be given as evidence before, except in particular cases where it is necessary to establish the offence with which the prisoner is charged. Under these circumstances it does seem to us better to maintain the existing privilege that the prisoner has of not having what I may call his past career brought before the jury in a way that would influence their minds unless he, by his misconduct in such a case, has rendered it necessary. Sir, I am fully alive to the fact that Members of this House may feel, possibly, that in safeguarding the prisoner to this extent I have done something which is not altogether logical. I prefer, however, if I possibly can—and I am sure the House will understand my feeling—to proceed on the basis of doing what I believe to be fair to the prisoner. Many hon. Members may not be able to agree with me, because some of them do not 985 think it is in the interests of the prisoner. Sir, I am afraid I must say with regret, as I said upon the last occasion, that this Bill does not extend to Ireland, but I hope that some day the time will come when, after the working of this Bill in England, hon. Members for Ireland may also ask for it. As far as I am concerned I have no intention of going back upon what I have stated. Sir, I have now laid—I hope not at too great a length—before the House the reasons which led us to press forward this Bill. I do honestly believe the Bill to be an amendment of the law which is seriously called for, and I believe it to be an amendment of the law which will be, above all things, a protection to the innocent. In cases where a man wishes to give his own account of the transaction as a witness he should be placed in the same position, and under the same circumstances, as those who give evidence against him. I am sure hon. Members who have been good enough to listen to me to-day will not accuse me of having willingly overlooked any leading objection. I may, however, have an opportunity later in the Debate of dealing with specific points which may be raised, and I now ask the House to adopt the Second Reading of this Bill.
§ MR. E. H. PICKERSGILL (Bethnal Green, S.W.)
In rising to ask the House to reject this Bill I am well aware that it is supported by members of the profession whose opinions I am bound to respect, and for whom, personally, I entertain the highest regard. At the same time I challenge altogether the statement that the opinion of the profession is overwhelming in favour of the Bill. In the first place, I am sure that if the votes of barristers in the robing room at Quarter Sessions and Assizes could be collected, you would find a large majority of them against these proposals; or, in other words, the rank and file of the junior Bar, who are in daily touch with the criminal courts, are opposed to this change. It is easy, of course, to pass over the opinion of these gentlemen with a wave of the hand, or a sneer, but I think that their opinion is perhaps as 986 much entitled to consideration as that of Queen's counsel, who, in many cases, very seldom descend from their Olympian heights to the very vulgar atmosphere of a criminal court. But, Sir, that is not all. Among other members of the profession we have a most significant division of opinion in cases where experience has been gained under precisely similar conditions. For instance, I believe that the Recorder of London supports the Bill, but the lawyer who presides in the adjoining court, the Common Serjeant of London, is against, the Bill. Again, I believe the Chairman of the London Sessions is in favour of this Bill. Against him I may cite the Chairman of the Middlesex Quarter Sessions, who has had at least as great criminal experience of a similar kind, and he is absolutely opposed to it. But then, Sir, there is something more, and it is this: that the supporters of the Measure are not agreed amongst themselves. The supporters of the Measure differ upon what is the very crux of the question—namely, whether the cross-examination of the prisoner is to be restricted, or is not to be restricted. This, I submit, is not a detail to be settled in Committee. It is the essence of the case, and it goes to the very root of the matter; and, Sir, the Government themselves are not agreed upon this most important point. The Government themselves apparently have not been able to make up their minds which side they ought to take. The Lord Chancellor's Bill in 1896 imposed restrictions upon cross-examination. The right hon. Gentleman the Attorney General himself brought in a Bill, and recommended it to the House last year, which imposed no restrictions upon cross-examination, and now the same right hon. Gentleman reverts to the policy of restriction. Under these circumstances, I say that I have a right to call the attention of the House to the fact that the Government themselves have not made up their minds in regard to this most important change in the law. Now, Sir, with regard to the question of restricting the cross-examination of the prisoner. No doubt the majority of the advocates of this change contemplate restricting cross-examination, and they would shrink from supporting this 987 Bill unless they thought that there would be provisions in the Bill for restricting cross-examination. But, Sir, what the public, and what I think some members of the profession do not understand is this: that in reality there is no halfway-house between excluding the testimony of a prisoner altogether and subjecting that testimony to exactly the same test as that of other witnesses. On the other hand, those counsel who have most deeply considered this question are perfectly aware of the truth of what I say. May I just give one or two extracts from the highest authorities in support of that contention? First, I take Lord Russell of Killowen. He said in another place on a certain occasion—I have grave doubts whether, when once a witness is admitted to give evidence, it is possible by the artificial restraints which this Bill seeks to impose to protect that witness from the ordinary tests as to credit.And Mr. Justice Hawkins used words substantially the same. He said—Every prisoner should be able to give evidence in his own behalf, but of course he must be subject to cross-examination just the same as any other witness.And the most experienced criminal lawyers are of the same opinion. My friend and former master in the law, Mr. Charles Mathews, than whom I think there is hardly a higher authority in reference to this subject, says—A prisoner should be subject to the same cross-examination as an ordinary witness.Mr. Avory said that no restriction should be placed on the cross-examination of prisoners. I do ask the House to take note of these very significant statements of opinion expressed by such high authorities. Then, Sir, upon what ground is this Bill recommended to the House? I presume it is not recommended on the ground that any change is necessary in order to secure the conviction of the guilty. I understand the learned Attorney General rather to take that view. I quite feel, and everybody will feel, that, considering that at present as many as 82 per cent. of those who are indicted and tried upon criminal charges are convicted, really there is no necessity for advo- 988 cating any change if the object were to secure only one or two per cent. more convictions. I understand that the Attorney General rests his case on consideration for the innocent, and he has told us that the prisoner's mouth is closed. Well, Sir, I do think that is an exploded argument used by the prisoner's counsel reduced to the last extremity. As a matter of fact a prisoner's mouth in this country is not closed. As my hon. and learned Friend opposite told us in the Debate last year on a Bill which I introduced—namely, the Criminal Appeal Bill—there are at least, four occasions which an accused person has of telling his story: (1) on his arrest, (2) when he is formally charged, (3) before he is committed, when his statement is taken down and read at the trial, and (4) even if he is represented by counsel, he may, according to the best practice of the day, if he chooses, tell his own story to the jury in his own words. I say, therefore, that it is not right to represent it to the public that the prisoner's mouth is closed. But, Sir, the whole effect of the learned Gentleman the Attorney General's speech to-day went to point out, I think, that the effect of evidence given on his own behalf by an innocent man must be irresistible. Now, Sir, I join issue in that statement, and perhaps I may refer, by way of illustration, to an instance which occurred some thirteen years ago, in which the hon. Member for Plymouth, whom I do not see in his place, was concerned. I refer to what is called the Bartlett case, in which two persons—Mrs. Bartlett and Mr. Dyson—were jointly indicted for murder, but before that there had been a coroner's inquiry; the coroner's jury, before which Mr. Dyson had given evidence on his own behalf, returned a verdict of wilful murder against him. When, however, the trial came on, the Attorney General of the day—now Lord Russell of Kill-owen—was so convinced of the man's innocence of the charge that he offered no evidence against him, and the accused was at once liberated. Now, Mr. Speaker, it would, of course, be unbecoming of me at this time of the day to go into the case at length, and I do not desire to rake over the dead embers 989 of that very strange case. But the facts are sufficiently remembered by the House for them to recognise that Mr. Dyson's case was a thoroughly representative case as regards the issue which is now raised, and that to drive into the witness-box an accused person, who is innocent of the particular charge, but not altogether untainted, would be to increase indefinitely his risk of conviction. Now, that is the case of 99 persons out of every 100 innocent persons who are put on their trial by indictment. They are innocent of that particular charge, and ought, therefore, to be acquitted, but they are not altogether untainted. The fallacy which runs through the argument of the right hon. Gentleman the Attorney General, and of all those who take his view of the case, is this: they assume that the person charged is absolutely innocent, and has an absolutely clean record, whereas that scarcely corresponds to the facts of any single case. I say that to submit to examination and to cross-examination would not necessarily be advantageous to an innocent man. The advantage would depend upon his coolness and self-possession. Those qualities are to some extent associated with education, and so the educated man would have a great advantage if this Bill becomes law over the uneducated, and, therefore, I say that one of the objections to this Bill is that it would tend to establish the most odious of all distinctions—a class distinction. It is the ignorant person who most needs protection, and ignorance usually goes with poverty, and hence I submit that the cases which were put before us last year in so interesting a manner by the hon. and learned Gentleman the Member for Plymouth are not very relevant to the real issues which have been raised. It is not for the rich man that I plead, but for the poor man. As for the defendant who is in a position to command the services of the hon. and learned Member for Plymouth, he will be looked after, and he will be protected at every turn let the law be what it may, and he cannot, unless he deserves it, come to any great harm. Therefore I put aside cases where the defendant is represented by a distinguished counsel, and I plead to-day, as strongly as I can, on behalf of the poor ignorant man who has no counsel 990 to represent him. Now, what is the case—as everyone familiar with criminal courts will recognise—what is the peculiar feature which is always observed in the case of an ignorant man who is charged with a criminal offence? Although perfectly innocent of the crime with which he is actually charged, he has a strong tendency to tell lies about comparatively immaterial incidents connected with the transaction. To get out of the scrape in which he finds himself he invents a story which is generally not only a fiction but a stupid invention which is easily broken down in cross-examination or disproved by other evidence. If, under this Bill, the prisoner went into the witness box, the discredit which would thus be thrown upon his testimony in part would influence—unfavourably influence—the jury generally, and might very probably prove fatal. Now, Sir, it has been said, and the hon. and learned Gentleman the Attorney General has said it, that there are cases in which, if it were not for the opportunity of giving evidence which is given to them under the Criminal Law Amendment Act of 1885, they would certainly be convicted. Without at all desiring to set up my own statement, or my own experience, against that of the Attorney General, I may cite the statement which has been made by a gentleman who has probably had as much criminal practice as anybody in this House or outside of it—I mean Mr. Horace Avory. He distinctly traverses the statement just made by the Attorney General. He says—I have never known a man to be improperly convicted in consequence of his inability to go into the witness box.And he says further—When persons charged with offences under Acts which have enabled them to give evidence have been acquitted, the same result would possibly have been arrived at if they had not appeared as witnesses on their own behalf.Then, Sir, there is another objection which weighs in my mind very strongly against this proposal, and that is the objection based upon what I believe would be its inevitable effect upon the Bench, for this change in the law must 991 impair the dignity of the Bench. Then I think the question of impartiality is inextricably involved. If this Bill becomes law the judge would have to cross-examine the prisoner, or interrogate him, if you like, which comes to the same thing. We are not altogether without experience in this respect from time to time, for now we see a judge cross-examining—or, if you like so to call it, interrogating—a witness or wrestling with a witness for the defence, and thus flushed with victory or irritated by failure, as the case may be, proceeding with scarcely a pause to sum up the case to the jury. Well, Sir, such scenes anyone who is familiar with criminal courts must have witnessed, though such scenes are not frequent; but if this Bill becomes law they would be multiplied. Consider, Sir, for a moment how the proposals of the Bill will work out in practice. The bulk of criminal prosecutions and the bulk of criminal briefs are held by inexperienced counsel, who are often young men just called to the Bar. The defence, on the other hand, is almost invariably conducted by able and experienced advocates, conversant with every twist and turn of our criminal practice, and specially skilled in addressing and making an impression upon a jury. If this Bill becomes law the prisoner goes into the box and tells his story in his examination-in-chief with all the artful aids which his counsel can furnish. Then the young counsel for the prosecution rises and cross-examines, and he is generally totally incompetent to break down the prisoner's case, and with that ill-luck which so often dogs the footsteps of the inexperienced cross-examiner he strengthens the impression in the prisoner's favour made on the jury. Well, now, the judge may not allow the case to stop there. It would defeat the ends of justice for the judge to allow the case to stop there. The judge in such a case would be bound to assume the functions of prosecutor, and also to cross-examine in very much the same way which was once so familiar to him at the Bar. I think those who are most familiar day by day with what goes on in Criminal Courts will recognise the truth of the picture which I have indicated. Now, Sir, we have lately from many quarters 992 had complaints of the growing practice of judges—not in criminal cases specially, generally in intervening and in interrogating witnesses; and the other day a distinguished Queen's counsel, and I believe that he is a leader of his circuit—and the statement was not made in Court, when perhaps one might have suspected some sinister forensic object, but made in a public speech, and made, I presume, with due responsibility—gave expression to a very strongly-worded protest against this innovation in the practice of our judges. I think that Queen's counsel was right as to the fact, and fully justified in the protest he made. My present point is this: that if this Bill becomes law that judicial tendency will be enormously and indefinitely stimulated. Well, now, we have just been told, in answer to a question, that this Bill does not apply to Ireland. Now, why does it not apply to Ireland? I think that the Government have not dared to apply this Bill to Ireland. It is very significant that this change of the law is opposed, and bitterly opposed, by the hon. Gentlemen who come from Ireland. Why are they opposed to it? I think it is because of the exasperated feeling between class and class which is caused by the Land question in Ireland. But there is another question which unhappily often causes bitter feelings between class and class in this country. I mean the Labour question. I appeal to the Labour Members of this House—and I am glad that there is one at least near me—and I ask them to consider the effect of this change in the law in cases in which they are specially interested; whether it would be in the interests of justice that a trades unionist charged with intimidation or annoyance should be pulled about by a cross-examining justice? And now I pass by this question to another argument which is used in favour of the Bill. It is said that we are already committed—and the Attorney General made a great point of this—to this principle by a series of Acts, and that we have gone too far now to go back. Now I want for a moment to deal with that argument, because the Attorney General evidently attached to it great importance. Sir, in answer to that I say this; it will be found on 993 examination, with one or two exceptions, the proceedings under these Acts, if nominally criminal, are substantially civil in nature. The case of the Employers and Workmen Act to which inferentially I referred a moment ago is a very good illustration of what I mean. In that Act, in the case of offences under Sections 4, 5, and 6, Parliament in its wisdom allows the prisoner to give evidence, or the defendant to give evidence, but in regard to the offences under Section 7 Parliament did not in 1875 extend the same right to the prisoner. And why? Because the first three sections 4, 5, and 6, are sections which relate to breaches of contract, and to cases in the nature of civil actions; therefore Parliament decided to allow the defendant to give evidence. But the offences under Section 7 relate to intimidation and annoyance, and are properly criminal offences, and in this case Parliament did not extend the right to give evidence which is given in regard to offences under Sections 4, 5, and 6. I think that is an excellent case to show that there was some method in the manner in which Parliament has given the right to a prisoner to give evidence, and also has withheld that right. No doubt there are cases which are absolutely inconsistent with the case which I am supporting now. There is the Criminal Law Amendment Act of 1885, which is altogether inconsistent with the principle for which I am contending; but, considering the irreconcilable conflict of opinion as to the propriety of allowing the defendant to give evidence in these cases and the very conflicting statements as to the effect of that Act, I do not think that generally the repeal of this provision of the Act of 1885 would be very much regretted. Now, Sir, I have shown what a Metropolitan police-court magistrate, who wrote to the Times a little while ago, called "the want of stability in the condition of this Bill." That is to say, the Government have not been able to make up their minds on the very crux of the whole question, namely, whether or not the cross-examination of a prisoner shall be unrestricted in the same way as the cross-examination of any other witness is unrestricted. I have shown that the profession is divided in opinion, and I 994 have shown the irreconcilable attitude taken up amongst the most distinguished advocates upon this question. Some of them insist that the cross-examination of the prisoner must be unrestricted, and others resist such a proposal as a monstrous act of injustice and of oppression. I have shown that the country is not yet really committed or fully committed to the principle of this Bill, and that the question is still open. And, lastly, I submit that no case has yet been made out for so great a change in the law, and that at least further inquiry is necessary before any legislative step is taken. Under these circumstances I shall ask the House to vote against this Bill, for over and above all the objections which may be urged, I believe that the ultimate effect of this change would inevitably be to revolutionise the practice of our Criminal Courts. In spite of what the learned Gentleman the Attorney General has said, I sympathise a good deal with what I regard as the pertinent interruption of the honourable Member for King's Lynn. It will revolutionise the practice of our Criminal Courts, and make that practice more and more approach to the odious practice of the Criminal Courts of France, thus impairing the great and unrivalled position of the Bench in this country. I beg to move that this Bill be read a second time this day six months.
§ MR. J. LLOYD MORGAN (West Carmarthen)
The Attorney General has told us that this Bill had been carried in this House and in another place by large majorities on several previous occasions. The reason for that, Sir, seems to me to be very easily found. The number of Members, both in this House and in the other House, who take a real interest in this question is very small, because the Bill refers, not to the people generally, but almost exclusively to the criminal classes. There is a stronger reason, perhaps, than that to be found in the fact that the proposals contained in this Bill, on grounds of theory or on grounds of abstract justice, seem to be so reasonable that it is almost impossible to present a case against the Bill. It is only when we come to close quarters with the question, when we consider and weigh the difficulties with which it is beset, that we see the 995 pitfalls to which we are inevitably going. The right honourable Gentleman the First Lord of the Treasury, in abandoning this Bill last Session, said, and I think said most truly, that this was a Bill in reference to which there was not only a wide difference of opinion in this country, but that it was a question upon which experts frequently differed. When I spoke of this Bill last year, some objection was taken and some comment was made in reference to my want of experience. I have had 14 years' experience, both in defending and prosecuting prisoners, but I do not oppose this Bill on account of my own experience alone. I entertain strong views on this question, and very often men with strong views are somewhat biassed. I said last Session that there was a strong feeling at the Bar amongst that class who are best qualified to form an accurate judgment upon this question against the proposals contained in this Bill, and the Attorney General, in a perfectly friendly way, afterwards took me to task for that statement. I have now reconsidered the question, and a year has elapsed, and as my profession affords me a considerable amount of leisure, I have taken the opportunity of discussing the Bill with my friends at the Bar, who practise not only on my own circuit, but with many others who have had long experience, and who hold good positions in the profession, and who have tried scores and hundreds of prisoners, and who are consequently able to give weighty evidence on the question. As the result of my inquiry, I repeat with emphasis that what I said last year is absolutely and entirely true, and there is a strong feeling against this Bill, shared by a large and influential class in the profession. Why, Sir, the mere history of this question in the House of Commons for the last 10 years is a clear indication that the opposition to this Bill is growing. Even in this House the more people who are qualified to form an opinion, have considered the matter, the more they are coming over to the view that this proposed change is not going to be beneficial. During the nine years I have been in this House the Bill has been read a second time upon two occasions—last year and in 1892. In 1892, so little opposition was 996 shown against the Bill that the Attorney General got up in his place and said that the Bill had been considered by experts, that the Lord Chancellor was in favour of it, as well as Lord Herschell, and he formally moved the Second Reading of the Bill. There was no Debate, and there was no Division, and the Bill was read a second time. I have only cited that to show that the opposition to this Bill has become stronger day by day. I know that there are some hon. and right hon. Gentlemen in this House who consider that the condition of a law which prohibits a prisoner from giving evidence can only be described as barbarous. I notice also that very often statements of so drastic a character are made by those who are not best qualified to form an opinion. Lord Esher, when he spoke on this subject in the House of Lords in 1891, said, not that the present state of the law was barbarous, but—I will only venture to say that I am not prepared to oppose the Second Reading of this Bill .… but I look upon the proposed alteration with considerable alarm.And he declared his intention of endeavouring to introduce Amendments in Committee. On the last occasion when this Bill was before this House we were told that the judges were almost unanimously in favour of the Bill. I notice, and I think it is a rather significant fact, that the Attorney General did not say so to-day. I do not know whether in the interval the Attorney General has taken the trouble to discover whether the judges, when brought face to face with the question—and their opinions are of immense value in reference to this Bill—and having reconsidered it, have changed their minds. Whether the Attorney General is aware of that fact or not I do not know. I state this, and I think I am right in saying it, that out of 18 judges who have tried prisoners both ways—that is, in cases where prisoners are allowed to give evidence, and where they are not allowed to give evidence—there are seven for the Bill and 10 against it. [The ATTORNEY GENERAL: No, no.] Very well, Sir, the Attorney General dissents from that statement. Out of those 18 judges, I ought to say that there are 15 Queen's Bench Division judges and three judges of the Court of Appeal. In the 997 Queen's Bench Division there are six judges for the Bill and six against it. Mr. Justice Channing is doubtful, but inclining against the Bill. Mr. Justice Wills is doubtful, but I think he inclines for the Bill, but he does so with very grave misgivings. Then, Sir, I think I am also right in saying that two of the three judges in the Court of Appeal—Lord Justice Vaughan Williams and Lord Justice Collins, who have had great experience in trying criminal cases, and who are regarded as two of the soundest criminal judges this country has ever had—are both opposed to this Bill. I think we were told last year that Mr. Justice Hawkins was in favour of this Bill. But now Mr. Justice Hawkins has changed his mind. He has reconsidered the question, and, instead of being for the Bill to-day, he is against it. I pass over the attitude of the Government to-day by making one observation, that I think it is most unsatisfactory. Here is a great question which has been before the country for 20 years. This Government has introduced three Bills on the subject, and they have all been different in their proposals. In the first you prohibit cross-examination of the prisoner with regard to his character, and in the second Bill you allow it under all circumstances, in this one you again prohibit it. In the first Bill you make the wife a competent witness, but in the second you make her a compellable witness, and in this one she is a competent witness. So, again, with regard to Ireland, the Government have changed and changed about. Either the principle of the Bill is right, or it is wrong. If the principle is right, then the Government ought to face the question and fight it out. I am not in favour of introducing Ireland into the Bill, but I am pointing out the illogical position of the Government, and their position with regard to Ireland is hopeless. You exclude Ireland from the operation of this Bill, where their criminal procedure is identical with our own, and you include Scotland—where their criminal procedure differs entirely from that in England. Now, Sir, I want to say one word with regard to the attitude of the Government, and their reason for bringing in this Bill. The Attorney General has pointed out that the object of the Bill is not to secure a few more convictions. [The ATTORNEY GENERAL: 998 No.] But it is one of the arguments made use of in favour of the Bill. I take it that your object is to secure a fair trial for innocent men. There is one thing that has struck me most forcibly in relation to all these Debates—and I have followed them ever since I have been in the House—and that is the amusingly few cases in which it is even suggested that there have been wrong convictions in this country. The Government have had plenty of opportunities through the. Home Office for inquiries, and even in the cases put forward by the Attorney General to-day, and by the hon. and learned Gentleman the Member for Plymouth, the last time the question was discussed they assumed that the first jury would, under similar circumstances, have done the same as the second jury did. You cannot enter into the minds of the jury and see what a jury would do and why they have given a certain verdict. But what astonishes me is that there are scarcely any serious instances given of cases from the Home Office where any substantial injustice has been done. Now, I will refer the House for a moment to some observations made by the Home Secretary in a speech which he made this Session on the Court of Criminal Appeal Bill. Dealing with the question as to whether it was necessary to have a Court of Criminal Appeal in this country or not he said—Has anyone asserted that this Bill is required in the interests of justice—that in many cases juries have been wrong, and that in those cases no remedy has been found in the existing jurisdiction of the Home Office? Some evidence ought to be produced before you alter a system which has, on the whole, worked without injustice to accused persons. As far as my experience at the Home Office goes of the cases referred to me, there have scarcely been more than seven or eight in one year in which, after the closest examination, I have thought it necessary in any way to question the propriety of the verdict apart from the sentence.And I presume those seven or eight cases a year included the cases which are found from inquiries to be wrong after sending a Commissioner to take evidence on the spot. Well, now, the Home Secretary went on to say—The vital difference between a criminal and civil trial has hardly been sufficiently insisted on. In a civil trial the jury divide on the balance of evidence. The balance of evidence is a very different thing from what is required in a criminal trial. In the first place, you have 999 the committal before the magistrates; then there is the grand jury; and after that, before a judge and jury, where not a mere balance of evidence in favour of the prosecution is acquired for conviction, but the satisfaction of the unanimous jury beyond reasonable doubt.It struck me, in reading through the speech of the right hon. Gentleman, that if we could get the Home Secretary to come down to the House of Commons and repeat the speech he made upon that Bill, it would prove a most conclusive answer to the Bill now before the House. The right hon. Gentleman the Member for Fife took part in the Debate on that Bill, and he said—On the one hand it may be alleged that sentences are unequal, and on the other hand that verdicts are often unjust, and innocent persons are convicted. For the first of these there is abundant foundation, but for the second I believe there is no foundation at all. My experience when at the Home Office was substantially the same as the right honourable gentleman the present Home Secretary.Well, then, the right hon. Gentleman the present Home Secretary supports the right hon. Gentleman the Member for Fife, who said that he substantially—
§ MR. LLOYD MORGAN
I will not proceed with that. The House will see the relevancy of it. It is important to us that both the present Home Secretary and the late Home Secretary are agreed upon one point—that there are very few cases of conviction of innocent people in this country. The extracts from the speeches I have cited prove to demonstration that innocent men are not often convicted in this country. You cannot get a system which is absolutely perfect, and my only contention is that the present system is likely to work far better than the change proposed. There are two gradual changes in the profession which causes me to look with some alarm on the proposals of this Bill. The first is the difference in the way in which prosecutions are conducted. The late Lord Justice Lush used to say that it was the duty of a prosecuting counsel to act in a somewhat judicial capacity. [The ATTORNEY GENERAL: Hear, hear!] I 1000 hear the Attorney General agrees with me. I am sorry to say that I do not think that is the practice of the present day. The amount of heat which is introduced into a criminal prosecution, the character of the speeches which are made, and the contentions which are put forward convey to my mind the impression that, in a great many prosecutions, I think in the greater number of prosecutions, the efforts made by the prosecuting counsel is to get a verdict—I do not mean unfairly, but strong partisan speeches are made. The late Lord Chief Justice, Lord Coleridge, speaking in the House of Lords, said—Prosecuting counsel do now, in reply, speak with a force and energy, and with a partisanship, against prisoners, which formerly, when there were no speeches by counsel for prisoners, they were not in the habit of doing.There is another change to which I desire to allude, and that is the tendency of some judges to cross-examine witnesses. This was alluded to by the hon. and learned Member for the Epsom Division during the Debate on the Court of Criminal Appeal Bill, which he described as an unfortunate tendency. That will be increased under this Bill. My hon. and learned Friend who moved the rejection of the Bill said that the majority of prosecutions in this country are conducted by members of the Bar who have very small experience, and if this Bill becomes law it will become their duty to cross-examine prisoners, and everyone knows that the duty of cross-examination is a most difficult part of the profession of the law, and it is only acquired after many years of experience. ["No, no!"] I think that cross-examining is the most difficult thing to learn, and it takes a great number of years to learn to cross-examine with skill and judgment. When prisoners go into the witness box their cross-examination will be ineffective, and the judges will have to take up the cross-examination, and they will be bound to become partisan. Their belief in cross-examining a prisoner is that the man is saying what is untrue. Very often the judge will take it up. You may say that the judges will not take a position of antagonism, but they cannot help this very often. The professional instinct will return, and all cross-examinations in criminal cases, or 1001 in the greater proportion of them, is, in a sense, antagonistic to the prisoner. The antagonism which may start with the prosecuting counsel will go on to the judges, and from the judges it will go to the jury, and the jury will take sides in the case. I cannot mention the name, but there is one of the judges in the Court of Appeal who said, in private conversation, that one of the most painful things he has to do is in cases where prisoners give evidence on their own behalf, because he feels that the counsel, from want of experience, has not done to his case justice, and feels that he is bound to cross-examine. He feels that it is most painful to him, because his professional instinct returns even against his will. The present state of the law is satisfactory. A prisoner now stands upon pretty firm ground. He says to the prosecuting counsel, "You have brought this charge against me; you prove it." And you prove it, not because my answer is weak, but because your evidence is strong and overwhelming. This Bill, without in terms saying so, alters that, and in time it will come that the onus of proof of guilt will be shifted to the prisoner, and he will find himself in the position of having to establish his own innocence. You cannot forget the fact that by far the majority of prisoners in this country, although they may not be guilty of the particular offence of which they are accused, are not men of high, character. Men who are sent for trial, and against whom true bills are found by grand juries, have a great deal to answer. They may not be guilty of the particular offence, although they probably are in some way or other mixed up in the matter. A prisoner gives an unsatisfactory answer in the witness box. He does not know, he does not remember, or he is not sure. Perhaps he says what is not true, and the fact of his saying what is untrue will be thrown into the balance against him by the jury. It will be urged upon them by the prosecuting counsel that if the man was innocent he would have said what was true, and the jury may on that account find him guilty, although the prosecution have not established beyond any doubt the case against him, but simply because the man when he has gone 1002 into the witness box has said what is a lie. A Colonial judge, writing to the Times on this question, says, "Innocent persons are apt to tell obvious untruths in order to better their own case." Now, that is the class of case in which a man will be convicted where to-day he is acquitted, and in which he ought to be acquitted according to law and justice. Therefore, in my judgment, if such a man goes into the witness box, he will be worse off than he is now. But supposing he does not go into the witness box, then comments are made because he has not offered himself as a witness, and that is almost worse for him than going into the witness box. I remember a case, to which I referred last year, in which a gentleman came down to this House in connection with a libel case, in which he had not presented himself as a witness in the box, and in which the jury, although they did not hear any evidence on the other side, where a plea of justification to a libel had been entered, found against him because they drew a conclusion so damaging and damning against him from the mere fact that he did not offer himself as a witness that, practically, it lost him the case. I am afraid that I have already troubled the House at greater length than I am justified in doing, but this is a question on which I entertain a very strong opinion. I believe myself—I may be wrong, but, rightly or wrongly, I believe that this Bill is a stop in the wrong direction. I believe that in the long run it will work badly. I do not suppose that if it passes into law for the present a great deal of difference will become apparent. The present judges, or the great majority of them, are imbued with the traditions of the past. But they cannot live for ever, and I say that when these changes do come—they may come slowly and gradually—we shall find that this Bill will bring with it bad results, and we shall, gradually and slowly, drift into practices which, in my judgment, are not fair, and are not right, and which, I think, will be characterised in course of time as un-English.
§ SIR ROBERT T. REID (Dumfries Burghs)
Mr. Speaker, I wish to say a few words in regard to this Bill, for I do not think I have addressed the 1003 House on this subject before. I am very strongly and heartily in support of this Bill, which has been brought forward by the Attorney General. There is no doubt that a different opinion is strongly held by my hon. and learned Friend behind me, and by other gentlemen of eminence and distinction; but, although I do not want in the least to question that view, I do not believe it is a very widespread opinion outside the ranks of the legal profession. And, however much I am attached to the profession to which I belong—and I am very much attached to it—I do not think that upon matters of legal reform the House of Commons ought to proceed exclusively upon the opinion of gentlemen who practise in the courts as barristers or preside over them as judges. I do not know where we are going to end if this practice of quoting the opinions of judges on one side or the other is to continue. My hon. and learned Friend behind us refers to a private opinion expressed by a Lord Justice of Appeal, but I do not think we ought to be influenced by such opinions at all. I cannot help remembering, and I say this with all respect and courtesy to the members of the Judicial Bench, that if the judges had decided what legal reforms should be introduced into this country during the last 50 years we should not have got so far as I am happy to think we have got in the promotion of judicial reforms. I do not mean that they are otherwise than advocates of improvement, but they naturally have certain prepossessions in favour of the system which they have administered themselves, and I do not wish the matter to be treated as one of authority. And there is another question. This Bill is an attempt to allow prisoners to give evidence. Within the last 50 years, according to the law of England, a party to a civil action has been able to give evidence. It was supposed that it was the duty of the State so scrupulously to watch over the possibility of perjury being committed that if a dispute arose between two persons engaged in litigation in a civil court as to what took place on a particular occasion you could not call upon one side or the other to state what took place, or to tender evidence, lest perjury should be com- 1004 mitted, and you had to leave the jury to draw their own conclusion as best they could from the evidence of people who knew little or nothing of the subject. That was the practice which prevailed, and when an attempt to reform it was made—and it was reformed within 50 years—suoh prophecies of evil were indulged in by gentlemen engaged in the controversy as you will find repeated now by some hon. and learned Gentlemen in regard to the present Bill. Now, we have every day to examine and cross-examine persons who are concerned in civil cases, and not one of the evils then contemplated has come to pass, and nobody would ever dream of trying to arrive at justice or the truth—which, after all, it must not be forgotten, is the object of our procedure—by the extraordinary process in a civil court of shutting out from giving evidence the only persons who know anything about it. And yet, when the Government of the day introduce a proposal that innocent men shall be entitled to give evidence in cases where they can tell the whole facts, and with all the solemnity attaching to giving evidence on oath, all these fears are expressed as to the result. I hope I have not spoken disrespectfully of the opinions of hon. Gentlemen who take a different view from myself, but I think theirs is a very mistaken view. Let us see what is sought to be prevented. I will take the case of myself, or any other gentleman. We are all liable to have false accusations brought against us. Suppose we happen to walk along the street, or into a railway carriage, or some other place in which there are only two or three others, apparently of a respectable character, who have formed a conspiracy to accuse us of an offence. It is possible that gentlemen who are wealthy are more exposed to that danger and more liable to be the object of such a conspiracy than others. I want to put it to any gentleman to just think what his position and feelings would be when he was approaching his trial when he knew he would not be allowed to go into the witness box and give a solemn denial to the charge on oath; and not only so, but to give himself an opportunity of having his testimony corroborated by cross-examination. Because the House must not be unaware that it is very often the case that this weapon 1005 of cross-examination, which is sometimes spoken of as if it were some mystic method of inducing people to tell lies, and leading them into every kind of error, is useless and fails against truthful evidence. There is no hon. and learned Gentlemen here, I am certain—and many of them have had much experience in criminal courts, as I have had in civil cases, of cross-examination—will bear me out when I say that the force of cross-examination is entirely blunted by an honest witness. You can make no headway against an honest witness, and although you may put questions to a witness, who is a simple, honest, and straightforward man, he will satisfy any tribunal that he is telling the truth. It is not an answer to say that you can now get up and make a statement not upon oath. That is not an answer at all. It is necessary, in order that a man should be able to give his evidence in his own defence with all the solemnity of proceedings in a court of justice, and with responsibility, that he should have an opportunity of answering every question that is put. Well, there is another point that I should like to mention, and it is this: the House must not forget that it is not only to the civil courts that this system of allowing witnesses to give evidence has been applied. It has been applied in criminal courts also. There are no less than 26 Acts of Parliament, practically every Act passed dealing seriously with criminal procedure during the last quarter of a century, in which a special clause is put allowing those to appear as witnesses who are actually the persons accused as criminals. That has gone on for 25 years, and it is rather strange that we should have that anomaly. This Bill is intended to reconcile anomalies, but it is not merely a question of removing anomalies. The important fact is that the actual working of the system of allowing prisoners to give evidence has been sanctioned under these 26 Acts for 25 years. Now I am not aware that any hon. Gentleman has seriously proposed to put an end to it. The thing has been tried, and these evils have not come to pass. On the contrary, I say—although I do not wish to dwell too much upon authority—the system has been tried by experience in the most successful manner imaginable, and no one has brought in any Bill to repeal 1006 it. Now, inasmuch as hon. Gentlemen in this House are so much given to bringing in Bills to remove every kind of grievance, and to remove some things which are not grievances, I cannot but think that if any injustice had been known to any hon. Gentleman as being done under any one of these Acts they would have brought it forward, and we should have heard enough of it and have been able to judge of the propriety of repealing that particular Act. But more, this system has been applied to all our Colonies—at any rate to all our self-governing Colonies, I believe—and there, again, nobody has ever proposed to repeal it. It works in these Colonies, not only in regard to such cases as are included in our 26 Acts, but in regard to every single criminal offence, I believe. They have introduced it and tried it everywhere, and nobody has ever thought of repealing it. If I were to go to the experience of the United States, and it is a very valuable experience, we should find that in most of the States the same system prevails, and I am not aware that anybody has sought to repeal it; and if it does not prevail in any one State, it is because some remnant of the English law still lurks in that particular State. Sir, one more remark before I part from that matter. All this is immaterial unless a practical injustice takes place under the existing system. I quite agree that we do not want to deal with theoretical grievances. Now, I remember that my hon. and learned Friend the Member for Plymouth spoke most impressively last year about a case with which he was acquainted, in which, within his own knowledge and experience, actual injustice had taken place; and the Attorney General has told us, upon his great responsibility in a matter of this kind, that he has known of cases in which injustice has been averted only by one of these 26 statutes by which the accused man has been able to go into the box to give evidence in his own defence. I aim not going to dwell upon authorities, as I said before, but the authority of persons who say they have known cases of injustice is positive evidence founded upon particular cases; while the statements of gentlemen who say they have not known such cases is merely negative evidence given by men who know less. There are many gentlemen of the highest authority 1007 who hold a different opinion. Sir H. Poland, for example—and I suppose there is no more experienced man, for he has had 40 or 50 years' practice in this matter—has said there has been, to his knowledge, actual cases of injustice. I will not put my own personal experience against that of any hon. Gentleman who sits here, but I may say that in my own experience I have known a case in which a man who was absolutely innocent, and could have proved it by his evidence, was saved from being convicted by the mere accident of the other side happening to put in his books some letters in which his explanation was given with reference to his books. I say it was a very, very narrow escape. Now that is the case, so far as I understand it, which is put forward in support of this Bill, and it seems to me to be a very strange thing that the natural desire of an innocent man to come forward and make what he calls an open statement—for he says, "Ask me any questions you like"—should be refused. Is it not a most natural thing, that when a man is accused of a terrible crime, he should say, "I want to go into the witness box instantly; it is the first thing I want to do; I want to make a full statement; ask me any questions—the more the better, and the more I shall be able to satisfy any impartial person?" It is a very strange thing that that should be objected to mainly upon one ground—that there may be somewhere or other some timid, ignorant, unwieldy, uncouth witness who, by reason of his personal defects, or want of mental cultivation, or what not, is liable to be convicted, although he is innocent, because, although he is innocent, he will somehow or other make it appear that he is guilty. Well, of course, there is no system in the wide world which is not open to criticism—there is no possible method of trying any person against which you cannot raise some imaginary case of hardship. Sir, I do not believe it is likely to happen under this Bill. My honourable and learned Friend the Member for Bethnal Green spoke of the ignorant and poor person who needs protection, and he said people of that class had a tendency when they were accused to invent excuses which were contrary to the truth, and then when they were called into the witness box it was assumed that they 1008 told lies, and might be considered guilty. That is rather, I think, a far-fetched objection, that an innocent person, going into the witness box to say, "I am not guilty," should blunder into some stupid fiction, instead of telling the truth. At all events, all I can say is that if the choice is between allowing a man to lose his chance by reason of his stupid and deliberate lying on the one side and allowing an innocent and honest man to tell his own story of his own case, I should prefer the first rather than the last. Well, Sir, it is stated that the judge would want to cross-examine the witness, and that after the process he would be so flushed with victory, or irritated by failure, that he would proceed to sum up in a manner which would be unfair towards the prisoner. It conies practically to this—I do not want to express an opinion adverse to the view that judges ought to refrain from putting questions, and if I were to express my own opinion about the practice of judges asking questions, and interposing in argument so much as they do, perhaps it would not be wholly in favour of the practice prevailing at present; but that is not what we have to consider. Is it really likely, in the present state of affairs—I am speaking of Great Britain now, of course; what I have to say about Ireland I will state before I sit down—but is it really true that in this country the judges are likely to abandon nil the traditions which have undoubtedly made them the most respected and most popular persons in the whole community? I say I believe that is an absolutely unfounded apprehension. I believe, myself, that the respect which is felt for the Judicial Bench is respect which is in every way well deserved, so far as integrity and uprightness of purpose are concerned. I believe it is the outcome of the long habit in this country of judges trying to administer justice without the slightest regard either to political considerations or to other considerations; and I believe myself that this imaginary consequence of the judges' notion, like any other anticipation in similar oases, would prove in practice to be illusory. All I can say is, that if it should become apparent that our judges are taking this line in criminal cases, of cross-examining witnesses, and assimilating their procedure to that pursued in 1009 some French cases that we have recently heard of, then it will be the first duty of this House and of Parliament to intervene and to prevent a scandal of that kind from being perpetrated. Well, Sir, I have only one more word to say, and that is with regard to the condition of Ireland. I do not know why the Government propose to omit Ireland from this Bill; but I should be disposed to omit Ireland from it, because I believe that the proper representatives of Irish opinion upon matters of this kind are the Irish Members. If they do not feel—and I believe they do not feel, or did not feel—the same confidence in the administration of justice in Ireland which we do legitimately in the administration of justice in this country, I can perfectly understand their wishes. I do not know what are their wishes, but I say that, holding, as I do, the principle that the representatives of a country are the proper judges in such a matter, for that reason, and for that reason alone, I should certainly exclude Ireland. But I must say that I think there is a correlative side to that proposition. I think that honourable Gentlemen who say with great truth that Ireland ought to be regulated according to the opinions of Irish Members ought also to allow us the satisfaction of regulating the affairs of Great Britain according to the opinion of the majority of its English and Scottish Members. I cannot help thinking that when that view of reciprocity is appreciated by my honourable and learned Friends they will see that it is an important matter. Sir, I will not occupy further time, but I am bound to say that I think this is on the whole a most salutary, a most wise, and a most humane reform; and I cannot understand myself, although I suppose it is my own fault, why so much opposition has been raised against it—in some instances from this side. I regret that opposition, and I hope the Government will stand by the Bill; and I shall vote for it with them, if there is a Division.
§ MR. A. LYTTELTON (Warwick and Leamington)
Sir, I think nobody can object to the admirable and judicious temper of the speech which has just been made by my honourable and learned Friend, but I venture to think that he 1010 has approached this question too much from the point of view of an educated man. What is the test of a good witness? What are the qualities that make a good witness? The question whether a man will make a good witness or not depends upon his temper, his memory, his candour and his ability. Endowed with all these qualities, naturally, my honourable and learned Friend, if he were charged with any very serious offence, would desire himself to go into the witness box. He would treat the charge, however infamous, with good temper, with candour, with ability, and with good memory; but he and those who are like him are not the persons for whom you are legislating when you are bringing forward Bills dealing with the criminal procedure of this country. You are legislating for the poor, the miserable, the ignorant, the confused—almost the dumb, you may say—who are driven into a Criminal Court and have, probably for the first time in their lives, to endeavour to string together a few sentences against more or less skilled opponents. Well, my honourable and learned Friend is sanguine or inexperienced with regard to those particular cases if he imagines that a cross-examination such as you hear at the Old Bailey applied to a miserable man, put, for the first time in his life, into the witness box, would afford him a method or an opportunity of proving his truthfulness and integrity. Well, Sir, I stand here, I confess, upon this broad conservative principle. I am a Liberal Unionist, and I very much regret that my honourable and learned Friend the Solicitor General, who is also a Liberal Unionist, is not here, for I think he would admit that there are good conservative reasons for the opposition to this Bill. No one can deny that this is a great, almost revolutionary, change in legal procedure. Now, what are the reasons advanced in its favour? Surely it is not intended to secure more convictions? Eighty-two per cent. of those indicted now are convicted, and it is surely preposterous to say that it is to secure the conviction of the miserable residuum of whom many are innocent, that we are going to revolutionise our present system? Neither can it be to abolish anomalies. They exist in immense numbers already, and this Bill will not abolish them, 1011 because, if it abolishes one, it substitutes another. The proposal of the Government is not to assimilate the criminal system to the civil system. It is to introduce a sort of hybrid witness, who is at liberty to state anything he chooses without the test of cross-examination. Take the case of a woman who complains of having been criminally assaulted by a man. She is cross-examined with reference to her whole past, and questions as to her morality may be raised. Under this Bill any person convicted of a similar offence within the previous six months shall be disentitled to be cross-examined as to character, although the prosecutrix, whose honour and reputation are at stake, is cross-examined as to her past history, whereas the man is protected and excluded from such examination.
§ THE ATTORNEY GENERAL
He would be allowed to be cross-examined in that case. The Bill states that a prisoner giving evidence shall not be required to answer any question tending to show that he is of bad character unless he has asked questions of the witnesses for the prosecution with a view to establish his own good or their bad character.
§ MR. LYTTELTON
I withdraw that, That is so. However, as regards the anomaly of this hybrid witness, he is at any rate a novelty, and the substitution of one anomaly for another. The Government are now really bringing this proposal in the belief that it will secure the acquittal and be of advantage to innocent persons. But, in order to satisfy this House that the proposed change is a reasonable and necessary one, the Government ought to show, in the first place, that under the existing system an appreciable number of innocent persons are in fact convicted; and, in the next place, that they were so convicted because they were not examined as witnesses. I will not repeat what my learned Friend said in seconding this Motion, or the testimony given by two Home Secretaries and the Attorney General, with regard to innocent persons, but I ask, in presence of these high 1012 officials, can they deny that in point of fact the conviction of innocent persons is an evil almost infinitesimally small? That is what they have said on another subject in this House, but their testimony is equally as important as if it had been given in this Debate. As to the second part, the Government should establish that innocent persons have been convicted because they have not been examined. I do not think that any serious attempt has ever been made in this House to show that. It is true that last year the right hon. Gentleman the Member for Plymouth described one or two hard cases in which, in his opinion, persons had been convicted who would have been acquitted had they had the opportunity of giving evidence. But the hon. and learned Gentleman occupies an unique position as an English advocate, and, if I may say so with great respect, one reason why he is the very greatest of our advocates is, that he has an intense belief in his own case and no doubt in the innocence of every client. This most drastic change has, therefore, been proposed, not with a view of redressing an anomaly—that is denied; not with a view of securing convictions—that also is denied; but with a view of giving innocent persons greater advantages. The late and the present Home Secretary admitted, as regards the conviction of innocent persons, that it was, practically, an infinitesimal grievance, if any. It comes to this, therefore, that you propose this change to redress an evil definitely pronounced by authorities on both sides of the House not to exist. It proposes a disturbance of a system eminently practical, based on experience, and evolved from the history of English criminal law on—I do not want to use disrespectful language—theoretical grounds. After what has been said by my learned Friend who has just spoken, I think it is very curious that reference to judicial authority should be deprecated by the friends of the Bill. This Bill was brought in last year by the Attorney General, supported by the honourable and learned Member for Plymouth, and based upon reported quotations given as the unanimous opinion of several judges of this country and eminent Members of this House. But, inasmuch as 1013 the honourable and learned Member for Plymouth said the opposition proceeded from amateurs—[Sir ROBERT REID: I had several times before protested against bringing in the opinion of judges.] I venture to differ simply for this reason: ever since 1885 the judges of the Queen's Bench Division have had much experience—greater than that of any counsel, however eminent—of the working of the two systems together. Ever since the passing of the Criminal Law Amendment Bill we have in this country an unique authority on the subject. Thousands of cases are tried by very eminent men under the old system, in which the prisoner cannot be examined, and also under the new system, in which he can. Now, to say that it is not right to quote the judges' opinion, or to obtain the result of their experience, is a position which I think will not seriously be maintained any longer. I quite agree that the matter should be decided by reason and sense, but when we have an opportunity of calling to our aid judges able to give experienced information—several of whom have been converted by their experience of cases in which prisoners were competent witnesses from being strong advocates of the proposed system—it is a sign, not of strength, but of weakness, to refuse the help of such unique experience. I would not have said anything with regard to the analogy of civil cases except that my learned Friend who spoke last sneered, or rather, I should say, good-humouredly chaffed those who oppose the Bill on the ground that there was opposition to a similar change in civil cases. It must be obvious to him that the position is absolutely different, and that there is no true analogy. In civil actions the jury must decide for either the plaintiff or the defendant. In criminal cases they are not bound to give a decision which will commit them one way or the other. They may say, "We have no doubt whatever that the prosecution has proved the prisoner guilty," or they may say, "The prisoner is not guilty." That may mean he is absolutely innocent, or it may mean that the jury have suspicions, but that they think the prosecution has not satisfied them, as by law required, beyond all doubt, that 1014 the prisoner is guilty. How can my learned Friend give the weight of his great authority to the suggestion that there is any analogy between these two systems, which differ in most important particulars? A mistake in one case is a, misfortune, but in the other may be one of the most terrible calamities that could possibly happen. I should like to say one word as to the supposed value of the oath of a prisoner put into the witness box. Is it not almost childish to say that a man who has deliberately stood up in court and pleaded not guilty, and whose testimony has been neglected in the dock, will, by removing himself 20 feet into the witness box, with warders at his side, by virtue of the magic of an oath, add weight to his statement? I do not wish to shirk the point at all; there is another element in being a witness, and that is in being cross-examined. If the prisoner be a man with the qualities alluded to by my learned Friend in the beginning of his speech, I quite agree that he will stand the ordeal of cross-examination, but if the prisoner be hopelessly wretched, miserable, and ignorant—as 99 per cent. of the men who are tried are—do you believe that cross-examination would assist him to establish his innocence? I submit that under the present system, which gives a man perfect freedom to state what he likes, though not to be cross-examined, a prisoner is in as good a position, and far better than he would be under this Bill. The Lord Advocate last year alluded to the Scotch system. If such a system could be brought about where a man would have an opportunity of advising with his solicitor or agent, as in Scotland, the very moment after he is arrested, and is enabled to make a full statement quietly and privately as to the matters connected with the charge, and if every effort were made to test the truth of his statement, I ask the House to say that that man, if innocent, has abundant and ample opportunities of establishing his innocence. Such a change I ventured to suggest elsewhere—a change something like what we have in our Indian system. On reflection, however, I think the Scotch system is even better. In India the judge is not himself allowed to cross-examine the prisoner, but he is directed, or required, to bring to his notice, one by one, the 1015 points of the evidence against him, and to state to the prisoner that if he desires to offer any observations or explanation he can then be heard. I do not dispute that that is an onerous thing for a judge to have to do. It has been done, to my own knowledge, by great and humane judges in England, but still I think the Scotch system, such as I have indicated, would be even better. May I just say a few words with regard to one effect of the atmosphere of a criminal court which this Bill would enhance? I say myself, and I have long experience, that I have never heard a prosecuting counsel conduct a case unfairly in England. He conducts it with a semi-judicial spirit, not unfairly, as one honourable Member has said [Mr. LLOYD MORGAN: I did not say unfairly, but with great warmth.] That I admit in cases where the prisoner is now cross-examined. Why does he? The very moment a man begins to cross-examine another an atmosphere of heat is generated. How many men can engage in an ordinary argument on an important subject without showing warmth? I think they are rather few in number. But what is cross-examination? It is argument conducted by men in public, with all the excitement that publicity can give. It is done by a man who is exhibiting his powers before others who may afterwards employ him; and is it not too sanguine to expect that such a man would conduct a cross-examination of a prisoner with that calmness and moderation with which English prosecutions are now conducted? May I give one quotation, from the opinion of Lord Justice Collins, who has allowed me to use his name in this matter? My honourable and learned Friend has said that he did not believe that judges would be carried away by the duties imposed on them by this Bill. Allow me to read the testimony of one of the judges on this point, which I am, sure will have great weight. There is no judge on the Bench more respected, esteemed, and admired than Lord Justice Collins. He says—My chief objection to the proposed change is that I feel certain it will greatly alter the present relations between the judge and the prisoner. It seems to me inevitable that, if it should become the practice for the prisoner to give evidence in every case, the judge will in 1016 most cases have to put questions in the nature of cross-examination himself. He has to do so now very frequently in cases under the Criminal Law Amendment Act. Counsel who conduct ordinary prosecutions are frequently inexperienced, and a crucial question often has to be put by the judge. If this becomes the ordinary practice, as I think it must if the proposed change is made, it must sap the prisoner's confidence in the absolute impartiality of the judge, which is so valuable a feature in our present system. It cannot but tend to alter the attitude of the judge himself actually and apparently; and I should regard this as a great public mischief, and deprecate any change which might make it possible, unless I feel sure that the certain benefits would more than compensate.This is the opinion of a judge who has tried these cases himself, and who has no prejudice one way or the other. He has had great experience of both systems. Is it not a deplorable thing for the Government of this country that the Ministry should seek to alter one of the most impressive functions of Government which now exhibits the judge and the prosecuting counsel—at any rate the judge—not as the enemy, but as the friend of the poor and miserable? Would it not be a deplorable thing that a system so generous and humane should be changed to one in which it would be the business and the duty of the judge to put questions such as Lord Justice Collins suggests, and as the result of which he would not appear to the poor and miserable in a Criminal Court as a friend, as he is now generally regarded, but as an embittered enemy? From information which I have received from Australia and the United States I know that the Attorney General was quite misinformed when he stated to the House that the Colonies were practically unanimous in the matter. I have heard from one correspondent in Australia that he himself heard one of the most distinguished judges there cross-examine a prisoner in a manner which made him, as an English barrister, tremble, and ask questions which one might expect a French, but not an English, judge to put. I have asked a man of great experience in New York who has been in many criminal oases there his opinion on the subject, and he made a remark to me which impressed itself on my memory. He said: "When the judge takes up the 1017 case it is unnecessary for anyone else to do anything in the matter." A judge, like a judge in France, sitting as President of the Court, regards himself not as an umpire, but directs the proceedings in a manner which greatly depreciates the system in the eyes of the public. I feel I have most inadequately argued this question. An actual majority of the judges who have expressed an opinion on this subject are vitally against this change. It is our misfortune in this House that the very distinguished lawyers who sit in it have mainly been concerned in great civil and mercantile cases, in which there is abundance of wealth and intelligence. They have not the experience of men of humbler position in this matter, and when they come to the Bench, and have gained that experience, I trust they will profit by it. This Bill, if it be read a second time, should be referred to a Select Committee in order that the experience of examining witnesses may be verified and thoroughly searched. But before it goes to the Committee it must be read a second time, and I emphatically hope it will not.
§ MR. T. M. HEALY (Louth, N.)
Mr. Speaker, this Bill has come down to us from the House, of Lords, and it is not the first time it has been sent to us. I think it is very greatly to the credit of this House that for 15 years it has refused to allow such a revolutionary change to pass, and therefore I feel inclined to reverse a well-known formula and say, "Thank God, we have a House of Commons." The Government have argued this matter on three grounds which should like to deal with in succession. They first state that the Colonies and America have got this law. I deny it. It is true that in portions of the Colonies and in America the prisoner can be heard in his own defence, but that is not this law. In America there is a distinct provision that the fact that the prisoner has not elected to give evidence shall not be referred to by either the judge or prosecuting counsel. Sir, that shows the utter falsehood of the analogy suggested by the Government. What would occur here if a prisoner did not go into the witness-box and submit himself for cross-examination? It would instantly be 1018 seized upon by the prosecuting counsel, or, perhaps, by the judge, who would say, "Oh, the prisoner could have gone into the box and cleared up this matter, but he shrunk and slunk from the ordeal." That was an enormous difference. It is argued again that there are already something like 20 cases in which the prisoner is allowed to give evidence in his own behalf. To state that number is misleading the House, for in practice there is substantially only one case—the case of assaults upon the other sex. That Act may or may not have been a proper thing. I regret it. Anyone remembering the atmosphere of this House in 1885, and the anger and folly displayed, will realise that the Act was not in any sense creditable to this House. Any man who recollects the passion and the folly connected with that Act will hardly like to refer to it as a proper instance in which this House exercised its legislative functions. This is a proposal to extend the law to every class of case. I speak to some extent as an impartial witness, because the long struggle I have waged against this Bill has at last induced the Government not to extend it to Ireland; that it cannot be extended to Ireland does not in the least degree mitigate my opposition; and my reason for it is this; when you find in the olden days before the Revolution the practice of cross-examination of prisoners was legal, and might even be enforced by the aid of the rack and the thumb-screw, I think when the practice was solemnly abandoned by a liberty-loving Government under a liberty-loving Constitution, we ought to be very slow indeed in introducing this innovation upon insufficient grounds. Now, what are the grounds upon which it is sought to introduce this Measure? You, Sir, have ruled that I should not be in order in referring to the discussion of the evidence on the Criminal Appeal Bill; but surely the Government, in order to show some case for departing from the principles which have animated English Ministers since the time of the Revolution, should have put forward some grounds—some case—for showing that a Bill of this character had become necessary and showing why we should depart from the wholesome practice of two or three centuries. It should only 1019 be done on the ground that your system for the administration of justice had broken down. Now, has it broken down? Are your prisons choke full of innocent people? Will any Home Secretary get up and say that for the want of the right on the part of the prisoner to be cross-examined in his own defence the prisons are full of innocent men? Is Dartmoor or Portland or any of those prisons filled with innocent prisoners? No. My idea of dealing with prisoners is to give them a fair run, give them a fair trial, and then when they are convicted gave them a smart sentence, and when they are in gaol not to give them "quail on toast." What is the proposal under this Bill? I heard with some amusement the reply of the right honourable Gentleman the Attorney General to a point which had been made by the honourable and learned Member for Leamington, and he turned upon a point which, in my humble judgment, is one of the most serious points in the question of detail in this matter. It is this, this Bill is really a rat-trap, because you are told that under this Bill the prisoner is not to be cross-examined as to his previous character unless the prisoner has himself cross-examined as to character a witness who has been produced on behalf of the prosecution. The hon. and learned Member for Leamington was putting a case of rape or an assault upon women, where of a necessity the evidence for the prosecution would be slight and of a personal character, and the prisoner would naturally desire to cross-examine the witness to show that she was a woman of light character. Now, that is fatal under this Bill, because the poor prisoner, although he was not guilty of this rape or assault, may have been guilty of highway robbery, or burglary, or some other form of assault, and the moment he attempts to show that his accuser is a person of light character at that moment he has committed one of the most fatal mistakes it is possible to make. He lets in all his past record so far as there have been any offences against him. That is the rat-trap, under this Bill. It is most unfair. Another thing that is unfair which I would refer to is the instances which the Attorney General gave. He stated, because his mind inevitably wanders— 1020 perhaps I should not say wanders, the term may not be quite accurate—but because his mind inevitably acts upon certain cases, naturally of an important character, upon which he himself has been engaged. He referred to the case of the Walsall prisoners, and he said four prisoners were indicted. He, upon his responsibility as the Attorney General, was of opinion that there was a case in which it was probable there would be a conviction against four men. One of those men went into the box, he said, and that man alone was acquitted. I asked the right hon. Gentleman whether that man was innocent, but he would not venture to say that he was, but he went on to show that he was only a dupe. In other words, he will for the first time attach the important principle that governs the law as to Queen's evidence. Let us suppose that two men are being jointly indicted. One man is in league with the Crown. He has already peached, but it does not suit the prosecution to allow it to become known. Stokes and Stiles are in the one indictment. Stiles does not go into the box, but Stokes goes into the box and turns Queen's evidence upon the other prisoner. Now the law says that if he gives evidence there must be a very strong corroboration of his statement, but in the hope that he will get off altogether or with a very few months' imprisonment, he tries not to make a direct admission of guilt, but to so excuse himself as to throw the whole of the blame upon the other prisoner. I think it is a most dangerous kind of procedure in relation to this country. Now let me take another instance. The fairest tribunal before which any man can come is the general courts martial. You are dealing there with a body of officers ignorant of the law, but everyone of whom is a man of the most scrupulous honour, and everyone of whom is most anxious that nothing should be pressed against the prisoner. I am not speaking of district courts martial, in regard to which, perhaps, I should not like to express so high an opinion. I am speaking of general courts martial. This will apply to military as well as civil cases. There is no judge there to say—there is nobody at all to say—what is the law, or what is 1021 not the law. It is perfectly true that there is a gentleman who is called the Deputy Advocate General, but at the same time we all know what is said about him. We know that so far as soldiers are concerned that the defence generally turns upon the cross-examination as to the character of the witnesses, and I say that if the soldier does not go into the box and, as it were, call himself as a witness all hope, not only for the soldier who is charged, but also of the high character of these military tribunals of the general courts-martial, would, in my judgment, absolutely disappear. Then take the case of minor military offences where the man is what is called "pruned." They are very minor offences from a civilian's point of view, but most sever from a military point of view; for instance, a man getting drunk on sentry duty. A man getting drunk is not a very great offence, but getting drunk on sentry duty is an offence which, in time of war, would be legally punishable by death; and those cases, when in war time you may, as I say, have to apply this Code to Military Law, in my judgment, constitute another very serious objection to this Bill. The hon. and learned Member for Leamington at great length showed what would be the probable result of this upon the temper of a court of justice, but what would be the probable result with regard to it upon the prosecuting counsel? I have never seen in England a trial of any kind, and therefore I cannot speak upon that subject; but let us take a case like that of Mrs. Maybrick. In what position will the prosecuting counsel be there, if he has to ask the question which will practically twist the rope around the neck of the unfortunate criminal? It may be it is a case of poisoning a husband—and some questions of that kind must inevitably arise—and then what is the effect upon the character of the prosecuting counsel when he has that trembling woman before him? He plying all his art, and she, in her miserable condition, not knowing but what the next word which she may speak will not be fatal to her. He watching his case, plying her with question after question, well knowing that the time must come when her answer will take her to the gallows. The position of the hangman is an office which would carry 1022 more respect than that, and that is the condition to which you wish to reduce the position of the prosecuting counsel. And why is this change to be made in the law? The English Revolution is against it, three centuries of experience is against it; and the only argument adduced in its favour is the suggestion that an honest man is occasionally convicted of a crime of which he is innocent. I ask, where is that innocent man? Turn the search lights of the Home Office upon him, and give us the facts. What is the one suggestion made quite recently? It is a most remarkable one. The right hon. Gentleman said he had the point from the Home Office in these words—Memorials are every day coming into the Home Office from prisoners, some of whom have been convicted under the change in the law which allows a prisoner to give evidence in his own behalf, and in no case since 1885 has any memorial contained the statement that the prisoner has been convicted because of his own evidence.It would be a very remarkable memorial if it did contain such a statement. That is the argument which is solemnly brought to bear upon this argument by the Attorney General. I can tell the right hon. Gentleman that no prisoner is over likely in any future memorial which he may send in to ask for Her Majesty's most gracious pardon on the ground that he was convicted upon statements given by him in his own evidence. The right hon. Gentleman the Attorney General said that we had a very full Debate upon this question last year. All I can recollect of the Debate of last year was that it was closured in the middle of a speech which I was making. I have regularly, formally years past, spoken in opposition to this Measure, and I was dealing at that psychological moment with the argument of a case which was of very special interest to the Attorney General, who had been engaged in assuring the House of the very great weight which would be given to the statement of a prisoner made under the sanctity and solemnity of an oath. He assured the House of the great importance that would be attached to any such declaration, and I was giving the House an instance of the very great weight that was attached to such a statement when the late Mr. Parnell was assuring this House that he had not 1023 written to Mr. Piggott the letters, as was alleged. Anybody who heard Mr. Parnell making that statement, trying to exculpate himself, would admit that such a laboured statement was never made, and that the reasons given to prove that he could not have written the letters were the most ridiculous on record. I remember groaning when I heard him assure the House that he could not have written the Piggott letters, because he did not turn his L's upward. The Times produced scores of genuine letters where he did turn his L's upward. The Attorney General assures the House of the great weight which will be attached to the statement of a burglar at the Old Bailey, who has to account for the possession of a jemmy, when this House, by an enormous majority, refused to listen to the statement of one of the greatest statesmen who has appeared in this assembly during the last century. It is by pretences of this kind that this Bill has been put forward, and is sustained. Sir, I have opposed this Bill so often that I shall not now repeat any of the arguments that I have used against it in the past, but I will ask the House of Commons, as a place distinguished from the House of Lords, to have some regard for Conservative principles, and at least, if this Bill is to be prosecuted, that the matter shall be referred to a Select Committee. It is a remarkable fact that the Government of the day, year after year, has shrunk from that test. They have been appealed to to send it to a Select Committee over and over again, and every year they have altered their Bill, because no two Bills are alike; which course do they mean to go on? No two Bills are alike, and they will never agree to put their Bill to the test of authority. They have told hon. Members of this House, who do not happen to be learned in the practice of the law, of the great unfairness of not allowing prisoners to make statements in their own defence. I say they are not disallowed to make statements in their own defence. I say there is no judge who will disallow a statement of the prisoner. I say they are allowed, practically, a good deal of liberty in making any statement which they desire to make, and what I say is this: that if you are going to press this Measure, and you mean it for the protection of the innocent, I say there is no 1024 argument against the position we have taken up. You have on the one side the trained, able, practised, well-paid, alert cross-examiner, and you have on the other side the miserable prisoner, as a rule ignorant, frequently illiterate, dazed as he steps into the dock, and benumbed in intellect, and knowing perfectly well that a mere slip or a phrase, with the jury hanging on his words, will betray him into penal servitude. Would any hon. Member of this House under those conditions like to make his last will and testament of his property, and yet, under those circumstances, a man may be disposing of his head, his life, or his liberty for ten or fifteen years; and in what a frame, of mind? The crowded court, the man wearied after two or three days' trial, the judge refusing the adjournment—you know the quotation, I. need not repeat it. Under these conditions a man of these classes is put into the cockpit, there to take his place in the arena against the silver-spurred advocate briefed for the prosecution. I thank the Government, at all events, that they are not going to extend this Bill to Ireland. I will not go into the reasons for that omission. I addreas myself to the question as one who feels the unfairness of this Bill, as one who feels that your English Courts of Justice have been fairly and honourably conducted in the past, and one who feels that it would be a degradation to your great judicial tribunals that, though a guilty man may not, an innocent man may be placed in a position of embarrassment and peril—for the first time under the British Constitution—far greater than any ancient law designed.
§ SIR E. CLARKE (Plymouth)
When we went into this subject last year I gave vent to my feelings in somewhat strong expressions; feelings which have been with me for the last 20 years, and which have deepened and strengthened with every year of my practice in the law. I will not trouble the House at very great length this evening. It amazes me to hear the fantastic imaginings which are given utterance to by learned Friends of mine with regard to the change that is to be made in the character of the English Bench, and the demeanour and habits 1025 of the English Bar, that is to be effected by this law. For the last 25 years the judges and members of the Bar, with increasing frequency, have been obliged to discharge the very same functions which they would have to discharge under this Bill. There has never been a suggestion, or a suspicion, of unfairness as regards the judges, nor have I heard any complaint as to unfairness with regard to the Bar. Yet the House is now asked to deal with this Bill as if the Government were proposing to do something not asked for, not demanded by experience, not justified by authority, not sanctioned by long consideration. It is nearly 25 years ago since one of the greatest and one of the most experienced criminal judges this country ever saw, Mr. Russell Gurney, who was Recorder of London, and who tried as many criminal cases as half of the Bench put together, first introduced this Bill. From the day of its introduction there has been the concurrent opinion in its favour of almost every man who has been conspicuous in the administration of criminal justice. Judges, counsel accustomed to the responsibility of criminal prosecutions, counsel for the defence in criminal cases, the solicitors who have had to deal with the larger part of the criminal work, have all, practically, been agreed. Take the series of Home Secretaries, the series of Law Officers of the Crown, and Lords Chancellor. If I were called upon now to name the living men who have had the largest experience of criminal justice, I should say Lord Halsbury, who, as Sir Hardinge Giffard, had a vast experience of criminal law; I should name Lord Russell, who was conspicuous in the discharge of his duties in a great many criminal cases; I should name Sir Henry Poland, who has had unrivalled experience as prosecuting counsel; and, as representing the other side, I should mention Sir George Lewis, who in the other branch of the profession has had a very large and varied experience of criminal business. Those four men are absolutely and heartily in support of this Bill, and for what reason? Because they think it will injure the character of the Bench and the Bar? Because they think it will imperil the innocent. The unanimity of these four exceptionally qualified men upon this matter is due to the fact that in their long experience they 1026 have lived to see the cruel and barbarous hardships which result from allowing a man to be tried for his life or for his liberty, and yet refusing to him that privilege which you would give to any servant before discharging him—the privilege of answering the accusation which had been brought against him. There is no other explanation for their unanimity, surely, than that. But look at the series of law officers who have supported this Bill. Amongst them are Lord Herschell, Lord James, Lord Halsbury, and my hon. and learned Friends the Attorney General and Solicitor General in the present Government. Then, there is my hon. and learned Friend the late Attorney General, who has spoken in favour of this Bill to-night, and last year the House heard a speech from my lamented Friend, Sir Frank Lockwood, also in hearty support of this Bill. The Home Secretaries who have had to deal with this Bill have been in the same position, and a series of them have supported this Bill, including the right hon. Gentleman now on the Front Opposition Bench. I believe they are all in hearty accord with regard to the necessity for this Bill. Well, now, surely it is a little too much to say, in the face of authority of this kind, that we shall, if we pass this Bill, be exposed to the dangers which have been conjured up on the other side. We have heard the dramatic description given by the hon. and learned Gentleman who has just spoken of what would happen in the case of a trial for murder, in which counsel for the prosecution would have to cross-examine the person who was accused of murder. He says how terrible it would be for counsel to have to undertake that task. Does he think it would be any worse than the task which a counsel has to undertake now when he has to make his speech inviting the jury to convict a person of murder, and when the strange thought occurs to his mind, as it does to everyone who is concerned in the case, that there they are deciding upon the life or death of the prisoner at the bar, without having permitted that person to give evidence on his or her own behalf? I have seen too many of these cases not to feel deeply on this matter. People have said to me, "Well, but cannot I give my evidence?" It is the greatest puzzle to an innocent 1027 person, when charged with an offence, to understand that the moment he is charged he is excluded from the category of an ordinary witness, and that he can only make a statement which he will not be able to explain in cross-examination. It is a thing that an innocent person cannot understand. For whom is the claim made that this sort of practice should continue?—a practice which I described long ago as the practice of looking for the person towards whom circumstances point as being guilty of the offence, and then shutting that person's mouth, and saying, "Now we play the game; you be silent, and without any assistance from you we will settle whether you are guilty or innocent." For what class of persons is the House asked to reject this Bill? The hon. and learned Gentleman the Member for Leamington puts before the House the case of those unfortunate, uneducated persons who are supposed to be unable to tell the simple truth.
§ MR. LYTTELTON
I did not say they were unable to tell the simple truth. I said they were unable to explain themselves fully.
§ SIR E. CLARKE
Well, from the other side of the House we had the suggestion of a prisoner inventing a stupid lie. If a man tries to shelter himself by what is found to be a falsehood he cannot complain if the jury take a somewhat unfavourable view of his character in regard to other matters. My hon. and learned Friend speaks only of poor people who are unable to explain themselves. But it has been said by my hon. and learned Friend opposite, and I say it too, that an innocent person, an honest person, has nothing to fear, and does not fear, anything from cross-examination. The more the questions asked, the more manifest the innocence of the person becomes. In very large classes of cases prisoners are now able to give evidence. Does anybody propose to repeal that provision? It would not meet with half a dozen supporters if such a proposal were made. Last year I gave some examples 1028 within my own experience. In one case a verdict of guilty was returned, but that verdict was reversed in a subsequent civil case in which the prisoner could be examined. It was, however, only reversed after the unhappy man had undergone several months' imprisonment in consequence of the conviction. There have been two somewhat remarkable cases since the Debate in this House last year. In one case a young man was accused of robbery. He was not allowed to give evidence, and was convicted and sentenced to penal servitude. An investigation into his case took place, and he received shortly afterwards a remission of his punishment. In the other case, in which I was concerned, a young man was charged, not with stealing a young woman's purse, but with a wicked and cruel personal attack upon her. Because that was the character of the offence which had been committed the prisoner could be, and was, called as a witness on his own behalf. He was cross-examined, and asked questions by the jury, who then stopped the case. Why did they stop the case? They stopped the case because it was perfectly clear, not merely from what the man said, but from his manner, that he was innocent. They judged by that evidence of innocence which one can see in an innocent person, whether rich or poor, educated or uneducated, who comes forward to face cross-examination. That young man would have run a most grievous risk of being convicted had he not been permitted to give evidence, for no fewer than four persons, including the young woman assaulted, swore positively to his identity. Mr. Speaker, it puzzles and distresses me to find that there is this resistance to that change in the law which seems to me to be only a matter of elementary justice. Let us deal with one's self. Let one imagine what one would claim as a first right if charged with an offence. A man would claim first of all the privilege of telling his own story. It is said that a prisoner can make a statement. Everybody who has practised in the Courts knows what an absolute delusion the idea is that a statement made and read out is equivalent to evidence given in the witness box. It is supposed that the statement has been written or prepared by somebody else. 1029 Very little attention is sometimes paid to it, and if it is commented upon it is pulled to pieces. I say it distresses me that there should be this opposition to a Bill which will, I think, remove a barbarism from the practice of the criminal courts in this country. But there is one thing I am glad of. We have heard it often said, by several conspicuous Members of this House, that the legal profession has been opposed to amendments and ameliorations of the law, and that if you left it to the lawyers the law would not be very greatly improved. At all events that cannot be said in regard to this case. For the last 20 years there has been, so far as those lawyers who practise in the criminal courts are concerned, something very nearly approaching unanimity in favour of the Bill now before the House, and I hope the Government will insist upon passing the Bill. I trust they will not allow it to be shelved by being referred to a Select Committee, but stand by their Bill and thus remedy a barbarism which exists in the administration of our law, a result to which I shall have pleasure in thinking the legal profession has done much to contribute.
§ MR. T. GIBSON BOWLES (Lynn Regis)
I trust, Mr. Speaker, the House will excuse my presumption in taking part in this Debate, with the added audacity of following the hon. and learned Gentleman the Member for Plymouth. I should like to comment upon the cases mentioned by the honourable and learned Member for Plymouth. As a layman I cannot understand the wonderful power which enables a practised lawyer to know when a man is speaking the truth or not in one case as opposed to another. You have no more knowledge of a prisoner when you have him in the witness box making his statement than when he is making his statement in the dock, and if the wonderful acumen of the lawyers is going to enable them to arrive at the truth instantaneously in one case. I do not see why they cannot do so in the other. There is no authority for this Bill. The Bill has varied year by year like a kaleidoscope. It is different every time it comes before the House, and on 1030 each occasion it is claimed for it that it is an improvement on the previous Bill. That, Sir, is a strong argument for the House to reject it this year in order that we might get an improved version of it next year. I presume, Sir, that this is not a question which concerns lawyers alone. Lawyers are, in my opinion, too often trained by habits of experience to run down the game, and I am afraid that they are in favour of this Bill, because, with their hunting instincts, they feel that it will make it as easy for them in England as it is in France to get a conviction against a prisoner. My simple lay view is this: for centuries the criminal law of England has been administered on the principle that if you want to hang a man you must hang him on somebody else's evidence. This is a Bill to hang a man on his own evidence, and on the evidence of his wife if his own evidence fails. This is a most enormous and stupendous change in the practice of the criminal law in England, and before that change is made the strongest and most complete case—the most convincing case—should be made out to show that it has become absolutely necessary. What case has been made out? I can see none at all, Sir. The Attorney General was kind enough to accuse me of universal knowledge. That is one of the most unfounded accusations that have ever been brought against me. I beg the right honourable Gentleman to believe that upon occasions I can be as ignorant on everything as an Under Secretary of State. [The ATTORNEY GENERAL: Or as a law officer?] I will not say a law officer, because I admit that lawyers do know law; but my opinion of them generally is that, however learned they may be in law; they have extraordinarily little knowledge of human nature. They know cases, but cases are one thing and human nature is another, and lawyers are very often not good in judgment. My experience of lawyers has been that, while I looked to them to furnish the law, I had to furnish all the knowledge of human nature myself. At any rate, I repudiate the accusation made by the Attorney General that I possess more knowledge than others; but this I do say, that, knowing that I had to vote on this Bill, I took the greatest trouble to inform myself. I trust the 1031 Attorney General will not laugh at me. When it is a question of law I do not go to law officers. I go to great and revered masters of the English law, and I am now going to quote the opinion of one of these. Sir William Blackstone says—The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence, frequently, its symmetry has been destroyed, its proportions distorted, and its majestic simplicity changed for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English as well as other Courts of Justice) owe their origin, not to the common law itself, but to innovations that have been made in it by Acts of Parliament, 'over-laden' (as Sir Edward Coke expresses it) 'with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law.'Sir William Blackstone might have had this very Bill in his mind when he penned those words. He also says—And it hath been an ancient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.And so, Sir, in my belief would it be with regard to this Bill. I fully believe that the Attorney General is honestly desirous of improving the law, but I think the fact that he and his brother law officers have year after year differed in their views as to the exact alteration to be made, goes fair to show the impossibility of improving the law, and the possibility of only altering it for the worse. The effect of the Bill would undoubtedly be to establish in this country precisely that same system of merciless interrogatories of prisoners—the judge playing most strenuously against the prisoner—which unfortunately has been adopted by almost all the Latin races, but which has fortunately been hitherto rejected in this country. When once you have got the prisoner into the witness box, of course that result must follow. This system has become a great scandal in France, and there has been a perfect 1032 uprising against it. The Attorney General asks you to force a prisoner to give his evidence in the witness box. Well, if I were forced to give my evidence at all, I would as soon give it from the dock as I would from the witness box. How is the value of my evidence enhanced, by the fact that it is given in one place rather than in another? It does not matter in the least where the evidence is given. When once you settle that you are going to force a prisoner to give evidence it does not matter one atom whether you put him in the witness box or leave him in the dock. The person who will suffer under this Bill is the poor ignorant prisoner. It would be a cruel thing indeed to put such a man as the ordinary prisoner into the witness box and subject him to that kind of interrogatories which are bound to take place under this Bill. If this Bill is a good Bill, if it is supported by all those who know everything about the question and only opposed by ignorant laymen like myself, if it is so necessary for England, wiry, in the name of all that is reasonable, are you not going to apply it to Ireland? A reason has been suggested by the honourable and learned Gentleman from Ireland who spoke against the Bill; it is that the Irish Members are one and all against the Bill. Consequently, I suppose the Attorney General fancies that the exclusion of Ireland will diminish the opposition to the Bill, or get rid of the active opposition of the Irish Members. But, if this Bill be necessary for England, there is no argument in its favour which does not make it as necessary—nay, more necessary—for Ireland; and I say that the fact that its promoters have not dared to suggest its application to Ireland—in view of the unanimous opposition of the Nationalist Members—is a confession that they have not such faith in its merits as they claim to have. While we are asked to take as final and conclusive the opinions on this Bill of learned counsel, we are asked to disregard the opinion of the judges, who are still more learned in the law, who have still more experience, and who possess greater impartiality than counsel can be expected to possess. I attach the very greatest importance to the opinion of the judges on this matter. They are experts—independent and 1033 unbiased experts—and undoubtedly the House is entitled to have their opinion in some shape or another. I suppose they could be got before a Select Committee. I remember that there was a time when judges were called to the Bar of this House, and had chairs to repose themselves on, in order that they might give their opinions upon questions of law then before the House. I do not know whether that practice which obtained 200 years ago can be revived at the present day. But if it cannot, some method ought certainly to be adopted to secure the opinion of Her Majesty's judges on a question of such vital importance as this. I do not know why Mr. Attorney General, who is in a position to know the opinions of the judges, did not cite them. I can only guess why he did not. I can only think it in because the majority of the judges are against this Bill. It is a most curious and remarkable fact—and a fact winch this House cannot, afford to disregard—and I do hope it will prevent this House from adopting hastily, if adopting at all, so mischievous and revolutionary a Measure as this Bill.
§ Upon the return of Mr. SPEAKER, after the usual interval,
§ MR. L. ATHERLEY-JONES (Durham, N.W.)
I only desire to say a very few words upon this Bill, on which my honourable and learned Friend the Member for Plymouth and I had the pleasure of speaking last Session. I think no one can doubt but what there is a very growing opinion against this Measure. It is not confined—
§ MR. J. CALDWELL (Lanark, Mid)
I beg to call attention to the fact that there are not 40 Members in the House.
§ MR. ATHERLEY-JONES
I was observing when I was interrupted that I intended to make very few observations upon this Measure. I think that there is a very growing feeling among those who are best competent to form an opinion with regard to Bills of this kind that legislation of this character is very much to be deprecated. There is now no doubt whatever about it. A very large proportion of Her Majesty's judges, and probably the largest number of those 1034 members of the Bar who are competent to form or express an opinion upon this subject, are opposed to this Measure. When I say those who are most competent to express an opinion on the subject, I do not forget that most distinguished advocate of the English Bar at the present time. The honourable Member for Plymouth has expressed himself as being very strongly in favour of this Bill, but the honourable Member has committed himself for years past to the principles of this Measure, and undoubtedly he has formed very strong opinions upon the subject, which, of course, naturally, are not easy to displace. But I prefer, with all due respect to that distinguished advocate, to take the views of men who have everyday concern with the criminal law, and, if I am not mistaken—and I have not lost sight of the distinguished name of Sir Henry Poland—the majority of the men who have everyday practice at the Old Bailey, and Middlesex Sessions, which, I suppose, are the greatest schools of criminal learning—if I may be allowed to use that expression with regard to the law—at any rate, of criminal practice in this country, I think the majority of those advocates are against this Measure in the interests of justice. I have reason to believe that a most distinguished advocate of the criminal Bar, Mr. Gill, and, I think, Mr. Avory, are both extremely sceptical as to what the results of a Measure of this character will be, and only to-night I had a note sent me by a man who certainly has a very large experience as a judge—I mean the chairman of the Middlesex Quarter Sessions—who as well as those gentlemen express the opinion that it is desirable that the Bill should be referred to a Select Committee. The chairman of the Middlesex Quarter Sessions, in his letter, goes on to say—It will be the worst day's work for the prisoners ever done, whilst it will double and treble the length of cases frightfully, and throttle and imperil the impartial and even friendly attitude of the English Bench to prisoners.Of course, I do not say you must count heads upon a question of this kind, but it has been argued that you must not trust lawyers. I altogether demur to that opinion. I think it is a case where 1035 for once common sense has gone astray, and that the lawyers are right. Common sense at the first blush says by all means permit an accused man to give an account of himself, and vindicate his character from the charge, which is made against him. It is extremely plausible and extremely reasonable, and I am bound to say that if I were a man—it would be egotism on my part to say that I am—that if I were a man of unblemished character, and charged with a crime, nothing in this world would afford me greater satisfaction than to go into the witness box and in respect of that crime to seek to vindicate myself in the opinion of the 12 men who were going to adjudicate upon it; but if it happened by chance that, although I was innocent of the particular offence which was the subject of the charge which was brought against me, I was a man of indifferent character and I had been in previous years convicted of a similar offence, then nothing in the world would induce me, short of compulsion, to go into the witness box and submit to cross-examination. That is where the weakness of this Bill lies. In substance, although not in language, it compels the prisoner to go into the box. It is perfectly true, as the Attorney General has on a former occasion, if not in this Debate, pointed out, that a prisoner is not compelled, under the procedure sanctioned by this Bill, to go into the box. It is true he may abstain from going into the box, but we have some little knowledge of human nature, and we know perfectly well that, if a prisoner does not go into the box, there is only one inference which the 12 intelligent men who will form the jury will draw, and that is that the prisoner is afraid to do so; and, if he is afraid to go into the box, there can only be one reason for his fear, because he is guilty of the charge imputed to him. But it will probably be said that he will go into the box, and if he does that, he will not be cross-examined as to his antecedents, that he can relieve himself from the danger of being cross-examined as to his antecedents by not calling any evidence as to character. But there again I appeal to human nature; as a matter of fact, if a man does not call evidence as to character, in that event—I will not say 1036 presumption, that is, perhaps, too strong a phrase—there will certainly be prejudice created against him in the mind of the jury. All these may be mere fantastical and imaginative arguments, as were pointed out by my honourable and learned Friend the Member for Plymouth. He said these were fantastic arguments, and he referred to the very admirable-speech of my honourable and learned Friend the Member for Leamington; and the honourable and learned Member for Plymouth referred to arguments of this character as being fantastical. I do not think they are, when you take into consideration this fact, that probably 60 per cent. of the prisoners who take their trial—I do not think I am overstating it—60 per cent. of the prisoners charged with crime have previously been convicted. It is with regard to people of that character that you have to approach the consideration of this Bill. Those are the people for whom a Measure of this character is passed, and you are going, with regard to 60 per cent. of the prisoners who come for trial at quarter sessions and gaol delivery of this country, to impose upon them the obligation of going into the witness box and giving evidence. Now, I do not hesitate to say that that is an ordeal from which every person who has previously been convicted would inevitably shrink, but they have no choice. The large majority of people charged with crime are persons of an indifferent or bad character. The number of persons who are charged with crime of a familiar character are more or less ignorant, and there would be the guilty conscience. A celebrated French jurist put it at 90 per cent. I do not think I overstate it when I say that 90 per cent. of the persons charged in England are persons of more or less depraved character. I cannot help thinking—and I take that view in the interest of these persons, because this Bill is conceived in their interest—that if this Bill, as it is, is conceived in the interest of persons charged with crime, then I say it is a Bill which exposes them to a situation which, from whatever point of view you look at it, must inevitably be detrimental, because it cannot be to the interest of a man who has either been previously convicted or whose character is bad that he should be put into the witness box and cross-examined as to his antecedents. It is perfectly idle for 1037 anybody to say that these persons cannot complain, because there is no obligation put upon them to go into the witness box. I may say, from practical experience—I was speaking to a member of the French courts, who has an experience of some 15 years, the other day, and he told me that in his opinion the one thing that distinguished the administration of the English criminal tribunals from the French in favour of the English was the fact that the prisoner was not exposed to that inquisition which exists in the French criminal courts; and he said—and I think rightly—that the passage of this Measure would be practically to transform the judge from a judge into an inquisitor, which is the one great defect of the French judicial system. Now, without suggesting that the English judges would go the length that the French do, there is another great defect in this Bill, and that is the opening of the door to perjury upon a gigantic scale. Every prisoner will think it his duty to go into the witness box and deny the crime. He does so now, but not on oath; but if this Bill passes into law he will think that it is his duty to go into the box, if his character is not too black, and he can do so with impunity. Now, the result of that will be when a man is guilty of an offence, and he is proved to be guilty of the offence with which he has been charged, that 82 per cent. of the prisoners charged, in addition to the crimes with which they are charged, will commit wilful and corrupt perjury. I do not quite understand how the Attorney General is going to get over that difficulty. He is going to invite, under this Bill, 82 per cent. of the prisoners charged with various kinds of offences to commit wilful and corrupt perjury. I have in my mind at the present moment a case in which a man was charged with an offence in the days when I attended the Sessions at Northumberland, or Durham, I forget which. He went into the witness box and gave evidence, and was acquitted. Now, the police had very properly, in my opinion, reason to suppose that that man had committed perjury, and he stood his trial; after having been acquitted of the charge for which he was first indicted he had to stand a second trial upon a charge of perjury; that is a peril to which every 1038 prisoner would be exposed if this Bill is passed into law. It is a very serious peril, and it is one which the Attorney General and those associated with him in the introduction of this Measure will have to take into consideration. I remember Mr. Justice Wills, who, if I remember rightly, tried a case of perjury, expressing the very strongest condemnation of the fact, and there is no judge upon the English Bench whose opinion would carry greater weight. He expressed the strongest opinion against the man who had escaped conviction, partly by his own evidence being placed in peril again upon the charge of perjury. Yet it will be the duty of those who administer criminal justice to place in peril those who they suppose to have committed perjury. That is a grave matter to which, I am afraid, sufficient consideration has not yet been given fey those responsible for this Bill. I hope I may be believed when I say it is not in any spirit of hostility or opposition to this Bill being a Government Measure that I oppose it. It is a matter of strong conviction with me that this Measure will be prejudicial to the administration of criminal justice in this country. Now, there is another objection, which is, that if this Bill passes into law it will result in an extraordinary protraction of trials, as it is perfectly certain in the great majority of cases which will arise evidence for the prosecution will have to be increased. A very experienced chairman of quarter sessions expressed the opinion to me, and the same opinion has been expressed by judges also, that the quantity of evidence produced by the prosecution will have to be very greatly increased in order to meet the ingenious theories propounded from the witness box by the prisoner. There is no doubt that a very considerable amount of time will have to be occupied by the evidence given by the prosecutor. This is not, perhaps, a very weighty argument, but it is one which is worthy of the consideration of the right honourable Gentleman the Attorney General. Another objection to this Measure is one which I do not think has ever been presented before to this House, but which, I am sure, has not escaped the attention of the Attorney General, and that is that it is likely to 1039 invite false charges. In its inception, this right of the prisoner to give evidence on his own behalf arises from the fact that false charges were so frequently made with reference to cases of immorality, and it was really to protect the man of unblemished character from charges which might be made where, necessarily, witnesses could not be called in support of the charge. It was to protect the prisoner in respect of those charges. That only gives a right to the prisoner of the privilege of giving evidence on his own behalf. Now, undoubtedly, the effect of that is, a person may be called upon to describe the whole of his past history, and may be put into torture by the person who is making the charge. That will open the door, and this is not my own opinion alone—I would not give it if it were, it is given upon the authority of men of very long and great experience—that the effect of this Bill, if it passes into law, will enable you to put a person into the box, and subject him to interrogations covering the whole of his life. The effect of that power, if this Bill be passed, will be that there will be an inducement for false charges being made against perfectly innocent people. I do not know whether that has been considered by the Attorney General, but it is a matter which has impressed me very strongly, and one which has very strongly impressed much more competent people than myself; I know my learned Friend, Mr. Gill, expressed a very strong opinion with regard to the Bill upon that score, and there is no one who is a greater authority than he upon the subject. Now, I repeat, as I said at the commencement of my very imperfect and unnecessary speech, after the admirable speech of the honourable and learned Member for Leamington, that a Measure of this kind would be most desirable in the interests of an innocent person of unblemished character. My honourable and learned Friend the Member for Plymouth said that he remembered a case very recently in which a man was unjustly charged in respect of a crime, and he said the evidence was overwhelming against this man; he must have been convicted upon the evidence when he went into the dock. Now, what brought him off? His manner. That seems to me to carry with 1040 it a condemnation of this Measure, because the great majority of persons who are charged are persons who possess no manner at all, or at all events a manner which is of no assistance to them on their trial. You take an ignorant agricultural labourer, and submit him to the cross-examination of an experienced advocate, who, I am afraid, would lay traps for him. Take the case of a man who had been previously convicted, and who had a character that would not bear investigation, and I do not know how far my honourable and learned Friend the Member for Plymouth's contention would carry him. This Bill is directed towards securing a greater number of convictions, and yet it is supposed to be conceived in the interests of the accused. When it is remembered that 60 per cent. are persons who have been previously convicted, the House will see that the illustration of my honourable and learned Friend the Member for Plymouth does not assist the question. I have risen under a strong sense of duty to speak against this Bill. It is a Measure which appears to be conceived—honestly conceived—in the interests of justice and for the protection of prisoners, and vet, in my opinion, and in the opinion of those more competent to express an opinion than myself, the Measure is really inimical to the fair trial of the prisoner. I do not expect that the Government will abandon the Bill; of course, that is absurd. Yet I venture to reiterate the wish expressed in this House, which is backed by many, including the chairman of the quarter sessions of this county, that this Bill may be referred to a Select Committee. There is no immediate urgency for the Bill. No case of urgency has been made out by the Government. It is all a question of symmetrical arrangement. I venture to suggest to the Attorney General that this Bill should be threshed out, with the assistance of Her Majesty's judges, and with the assistance of advocates, solicitors, and so forth. I bear in mind this, that there has been a great reaction among Her Majesty's judges in this matter. Only the other day Mr. Justice Hawkins, who at one time expressed an opinion in favour of this Measure, told me that after he had given much 1041 thought to the matter he had come to the most positive conclusion that the Measure was detrimental to the interests of justice. I do think that makes out a very strong case. No one who listened to the speech of the honourable and learned Member for Leamington can doubt that the Government would not be justified in forcing its Bill through by the mere weight of its majority. I most respectfully submit to them that they ought to regard the opinions that have been urged with the greatest moderation by honourable Members of experience, who are best able to guide us.
§ MR. WILLIAM AMBROSE (Middlesex, Harrow)
During this Debate we have had the opinions of judges and the opinions of counsel, but I think in this matter we must judge for ourselves. I do not pretend to be an expert on this matter. I consider this question, in all its bearings, merely as a Member of the House. Most of the Members of this House seem to treat the matter as though the liability to give evidence were a mere matter of privilege to the advantage of the prisoner. That is not, in my humble opinion, judging it historically, the real explanation of the matter. It is quite true we have not in England a system of examination, which is repulsive to Englishmen, and would not be according to our land. It was a general principle under our procedure that a man was not to be trusted in a court of justice to give evidence on any question in which he had a special interest; our law said that when a man was interested in a question he could not be relied upon to give truthful evidence. It was found, as civilisation progressed, and enlightenment advanced, that the only persons who could give an account of a transaction were excluded by this rule. Now, what is the principle on which you should oust people most competent to speak upon the matter? You could not have the system of France; that is a system which everybody would shrink from—of giving evidence whether he will or no. We do not propose that he should give evidence whether he will or no. There is nothing in the Bill of that sort. The 1042 proposal is simply that when a trial comes on a man shall be competent to give evidence on his own behalf. What is the point? There are two objects to be attained by an amendment of the law. I do not suppose for a moment that the proposal is made with a view of establishing anything like symmetry in the law—of making the law in criminal cases the same as in civil cases. That is not the object, as I understand it. If that is the object, I should be prepared to vote against this Bill. I think that one of the first objects of our criminal procedure should be to insure the certainty of correction in every case where the prisoner is guilty. It is by the certainty of conviction that you put down crime, and I venture to think that the principal object of the Bill—i.e., that the prisoner shall be allowed to give evidence—will insure to a large extent the conviction of a great many who now escape. To start with, quite apart from the question of convictions, I cannot help thinking—and I think that the House will agree with me on consideration—that the mere fact that a man knows that he may be called upon to explain what he does, or that in the absence of the prisoner to go into the box the inference is drawn against him, that mere fact may deter many persons from the commission of crime. But it should be borne in mind that the issue frequently—may I say generally?—is not merely whether A or B did a particular act, say, stabbed a particular man, or broke into a house. There are offences that are made up of intent. The acts themselves may appear innocent, they may be innocent standing by themselves, it is the intent and purpose with which they may be done that gives them their criminal character. The question of intent has to be judged by all the surrounding circumstances, and it may very well be that there is nobody capable of explaining these facts in some way or other that the man himself can do. I venture to submit that the fact that a man knows that he may be called upon to explain the meaning of what he has done—the meaning of a certain transactions which are charged against him—will be calculated to deter him at the very outset from the commission of a crime for which he stands liable to be indicted. 1043 But, Mr. Speaker, I go further than that. It has been said that the number of crimes in which prisoners are convicted is 82 per cent. of the whole, and that that is a very fair proportion. Sir, that in itself is a fallacy. The number is not fully represented by the number of people who are indicted. You must go to the commencement. You must go to the charges that are brought before the magistrates. There are a great many primâ facie cases such as a magistrate ought to send to a jury unless answered on the spot where they are capable of being answered; so that the principle does appear to me to be somewhat of a miscalculation, inasmuch as it ignores a number of cases that would be included if it were not for the fact that a great many get off simply because there may be some chain in the evidence incapable of being produced before the magistrates, and so the magistrates do not see that there is a case that they ought to send for trial. But, Sir, passing on from that—and that is only one side of it—there is the other side. My principal argument is on the question that innocent people are very much more likely to be convicted under the present system than if they were allowed to go and give evidence. That, I say, is the main object of the Bill. I think that there are considerations which we, as legislators, ought to recognise in the interests of the public. But, Sir, what are the arguments of my hon. and learned Friend on this point? We have heard a great deal about the difference of issues, and of a jury returning a verdict that they are "sure" that the prisoner is or is not guilty; and my hon. and learned Friend the Member for Warwick and Leamington quoted the argument advanced by Sir Herbert Stephen in a book he has published upon the point. Nobody has produced any authority for the point that there is that distinction in the issue. I always thought the judgment was either guilty "according to the evidence," or not guilty. As I understand it—I may be wrong—a jury are sworn to give their verdict according to the evidence. When they find a man guilty they do not mean absolutely guilty, but guilty or not guilty according to the evidence. The issue is also the same in civil actions, either for 1044 the plaintiff or the defendant, according to evidence in each particular case. Well, Sir, it is said that the prisoner will have much less chance if he goes into the witness box. Now, I agree, if it is a question of a greater number of prisoners securing conviction, but I fail to see why innocent people should be submitted to the ordeal of an examination in order to enable a few guilty people to get off easier. My honourable and learned Friends are probably accustomed to the stock arguments that the prisoner is entitled to the benefit of the doubt, that his mouth is closed, and that he cannot give evidence on his own behalf. These are the stock arguments which are adduced by defending counsel in case after case. In the case of the guilty man, you hear it ad nauseam, and you hear it also in the case of the innocent man. Indeed, the same stock arguments are produced in the case of every vagabond, who is tried before a jury. Sir, although, as I say, I do not pretend to have any large experience in criminal cases, I have had some experience in, other cases, and in life generally, and one knows how, when a case may appear black against A, B, or C, and you call that individual, and he gives a straightforward explanation of the matter, and especially when he is subjected to the cross-examination of a severe cross-examiner, his conduct comes out in bold relief, and things which looked black against him disappear, and in that case the jury will be prepared, if a man is innocent, to accept his statement and acquit him. Sometimes it may happen that a man may be innocent of the crime in all the circumstances which go to constitute a crime, and that there may be a guilty party that he may wish to shield himself from. One cannot but sympathise to some extent with that man, but still we must recollect that he is not bound to go into the box. If he does, how is he exempt from responsibility? If he commit perjury, though he may be innocent of the offence upon which he may be committed, and wrongly committed, he cannot escape the consequences of putting himself in a false position. Well, Sir, it is common, under the Criminal Law Amendment Act of 1885, to put defendants into the witness box. There are other cases in which 1045 the defendant is allowed to give evidence, but I believe it is the fact that most of the cases arise in the Criminal Law Amendment Act of 1885, and that the experience of judges and of counsel is that those who go into the witness box generally aid in procuring their own conviction by some means. Now, Mr. Speaker, I am bound to admit that in that class of case it may be a very unwise policy to put that witness into the box, but that does not apply to other cases, such as embezzlement and fraud, in anything like the same degree. There is, however, one course which is always open, and that is the policy of not calling the prisoner. We have heard a great deal about the opinions of judges and the opinions of experts in this matter. I must say I was very much impressed by the statement quoted by the hon. and learned Gentleman the Member for Warwick and Leamington, giving the opinion of Lord Justice Collins, who said that the proposed change would be distasteful to judges, and that, should it become the practice for the prisoner to give evidence in every case, the judge would in most cases have to put questions in the nature of cross-examination himself. I fail to see, for my part, how or in what way it would be the duty of the judge to enter into anything like cross-examination in cases of this kind. I know it has been suggested by an hon. Member on the other side that very frequently young and—I am sorry to hear it—inexperienced counsel are employed in prosecutions, and that they are very often not equal to the task before them. If that be so, it is not my experience. Counsel capable of properly conducting the prosecution should be engaged in every case, so as to relieve the judge of the necessity of entering into anything approaching cross-examination. The matter is one which has given me some anxiety, and I speak from a sense of duty. I have no strong feeling on the matter, but I think the suggestion which has been made by the hon. and learned Gentleman the Member for Warwick and Leamington, that the subject should be referred to a Select Committee, is one well worthy of the consideration of the Government.
§ MR. E. H. CARSON (Dublin University)
Mr. Speaker, Sir, I gave my reasons so fully last year when this important question was before the House that I only venture, to address the House upon this occasion in order that I may lend what little weight I may possess to the opposition to this Bill. Mr. Speaker, I have had in another country—I should say in a part of this country—a considerable experience in criminal procedure and in criminal law, and, if I may say so without appearing in any way egotistical, I have had a good deal of experience in the few years that I have practised in this country. And I cannot conceive any Bill dealing with the procedure of our criminal courts more important in creating a revolution in that procedure than the Bill which is now before the House. If I thought that Her Majesty's Government would say that they were quite willing that this Bill should be referred to a Select Committee, I should so far enable them to do so by voting for the Second Reading, because, Sir, I think it is essentially one upon which the majority of the Members of this House require the expert evidence of those who have been mainly engaged in the administration of criminal law. But, Sir, when we have an hon. and learned Member of the weight and distinction of the hon. and learned Gentleman the Member for Plymouth fretting up and saying in this House that there is and has been an almost unanimous opinion, both among judges and counsel engaged in the criminal law, in favour of this Bill, I certainly am astonished. If the statement of my hon. and learned Friend, which, of course, is made with great knowledge, and with, thorough bona fides. is in the least borne out by the facts, I can see no reason why Her Majesty's Government, if really anxious to pass this Bill, and to pass it in the full light of day, should not agree to a Select Committee to inquire into the question. But at the very outset I join issue with my hon. and learned Friend and I say that, so far as my information trees, the great weight of Her Majesty's Judges, whether in this country, in Scotland, or in Ireland, is against the Bill. As regards the practising members of the Bar who are engaged in criminal procedure, I also assert, what I believe 1047 from inquiry to be the fact, that the counsel who are engaged mainly in the administration of the criminal law in this country are in the vast majority opposed to this great and revolutionary change in the law. Well, Sir, if that be so, or if there be any doubt on the point, what right have we, on the mere statement of one side or the other, to assume that those who are best able to inform the House have made up their minds on the question one way or the other; and why should we not have, by a declaration of those parties themselves, the opportunity of having them examined, and of ourselves making up our minds as to what is the reality in this question of the administration of the criminal law? Mr. Speaker, apart from this consideration I should like to know what is the demand for this change in the law, and what is the ground for it. Is it, Mr. Speaker, that the Government think that the administration of the law up to the present time has not been carried out fairly, and so as to command the respect of the people of this country? Sir, I say there has been no suggestion, whether by those who are accustomed to defend prisoners or by the main body of the people, of a demand for this Bill. Now, Sir, I have watched since this matter was last before the House a good deal of controversy in the public Press and elsewhere with regard to this question, and I should like to direct the attention of the House to this important fact, that the Government themselves, in the various Bills they have brought forward year after year, dealing with this matter, have never been able consistently to put before the House what is the exact proposal they wish to make, or the exact change they wish to bring about. Two years ago a Bill was brought in, in which there were very practical limitations put to the proposed power of examining and cross-examining prisoners brought forward on their own behalf. That Bill, for Parliamentary reasons, was not proceeded with, and last year they brought forward a Bill which proposed no limitations whatsoever to this power of cross-examination. This year they again bring forward a third Bill, which does away entirely with the idea they had last year, that a prisoner could be left absolutely to the mercy of the prosecuting counsel as to the particular class of questions that 1048 could be put, and they put in certain limitations showing that the real crux of the question is as to how prosecuting counsel are to be allowed to deal with the prisoner, when that prisoner has elected to give evidence on his own behalf. I believe it is because it is impossible to lay down any satisfactory guide for prosecuting counsel in this respect that it is absolutely impossible to make this important change in the administration of the criminal law. I am also aware that, since the Bill was last before the House, and since the matter was, for the first time, I think, threshed out in this House, very many of those who are in the very highest positions, and have the very best possible opportunities of considering this question, have materially altered and modified the opinions they previously held. If I might refer to one without mentioning a large number of others, I think the House ought to pay considerable respect to the opinions of a judge of the vast experience of Mr. Justice Hawkins, who avowedly admits that for many years he was in favour of this change, but who, when the matter arrived, so to speak, within the range of practical politics, came to the conclusion that, however good the idea was in theory, the idea of having a prisoner brought forward to give evidence on his own behalf would be in actual practice absolutely impossible so as to do justice to the prisoner and the prosecution. When you find a judge of the experience of Mr. Justice Hawkins altering his view when the matter comes almost to be enacted by this House, I think the House ought to pause before allowing a Bill of this kind to become law without giving men of his eminence, and other men upon the Judicial Bench, the opportunity of coming forward and stating their reasons for or against the Bill, and the particular limitations which they think ought to be put into the Bill. There is another matter which shows the difficulty in which the Government are placed. I should like to ask my honourable and learned Friend the Attorney General for Ireland, what is the reason why, if this Bill is absolutely essential for the administration of justice in this country, Ireland alone should be excluded? It will probably astonish the House when I tell you this, that, as regards criminal 1049 procedure in Ireland, up to the present moment there is not a single Act relating to criminal procedure which applies to England which does not apply also to Ireland; yet, for the first time in the history of the criminal law of the two countries, you are going to set up an entirely different system as regards the privileges or otherwise of the prisoners who may be tried before the Courts of Justice. I want to know if, at the close of this century, when the Union has existed between the two countries for nearly 100 years, when our Common Law is exactly the same, when every Act you have passed hitherto, as regards procedure in this country, applies to Ireland, you are going now for the first, time to create this difference? Sir, I should like to know if justice depends on the geographical situation of this country? If that be so, are the Government really in earnest when they tell you that it is essential to pass this Bill for the better administration of the criminal law, and the better protection of prisoners who may be tried for the various crimes under our criminal law? If they are, why is Ireland excluded from the operation of the Bill? If the elementary principles of justice require that a Measure of this kind should be passed for England, surely the same justice ought to be extended to Ireland. Ireland has been left out for, perhaps, the best of Parliamentary reasons, but the most contemptible of all real reasons—namely, that the Government did not wish to have the opposition of honourable Members from Ireland on the opposite side of the House. I really do think that it is beneath contempt that a Government, possessing a majority of 140 in this House, and professing themselves to be a Unionist Government, should draw distinctions of this kind. The Bill introduced last Session did include Ireland—
§ SIR BICHABD WEBSTER
I am sorry to interrupt the honourable and learned Member, but the Bill introduced last year excluded Ireland.
§ MR. CARSON
Well, if my honourable and learned Friend says so, I accept his statement, but a very little more history will show that I am absolutely right in the argument I have used. Why was Ireland left out of the Bill of 1050 1896–97? A question was put to my honourable and learned Friend the Attorney General as to whether Ireland was to be included, and he said the Government had determined that they would not include Ireland in the Bill. How does the matter stand? Do the Government really think that this Measure will confer a benefit upon innocent men? If they do, I think innocent men in my country ought to have had some consideration. But the argument that this Bill is meant for the protection of innocent prisoners is a solemn pretence. It is not meant for the protection of innocent prisoners. The real idea is that prosecuting counsel may be enabled to bring more prisoners within the operation of the criminal law. Looking back over a long practice of over 20 years, I cannot recollect a single case that has come under my notice in which a prisoner would have been benefited by the so-called privileges which it is proposed to confer by this Bill. Having such a large experience as Crown Counsel in Ireland for the county and city of Dublin, where many cases came before me, and where I had often great difficulty in ascertaining the rights and wrongs of criminal cases, I found that the class of cases which gave me most difficulty were those in which the prisoners were allowed to-be called in their own defence. I had to take care that no unjust prejudice was created against the case for the prosecution, and I had also to see that by my cross-examination no unfortunate prejudice was created against the prisoner. Anyone can see that, in trying to exercise that discrimination, the Crown Counsel was in a most difficult position, because the very foundation of the charge against the prisoner might have been with reference to antecedent matters in his history; and if I had cross-examined him upon them he dared not deny, thereby creating a prejudice against himself. Take again the case of a man charged with an assault upon a young girl. The very foundation of the charge might have been that, at some antecedent period of his life, the prisoner had been charged with the same offence, and if that matter were allowed to go before the jury it would create a prejudice against the prisoner. Docs anybody doubt that, whatever may have been the rights or wrongs of the particular case, the jury would have been carried 1051 away, by a prejudice which would have been irresistible, to the detriment of the unfortunate man? It might be answered that, under this Bill, a prisoner is not compelled to give evidence. But the whole tenour of the speech of the honourable Member who spoke before me was not in that direction. Let no honourable Member entertain the idea that this Bill gives the prisoner an alternative; it does not—a prisoner has no choice. The prosecuting counsel will say, "Who is the man that can best tell us about this? It is the man now indicted"; and the prisoner will be driven into the witness box, and his whole past history will be gone into. The honourable Member for Plymouth said it was monstrous that a prisoner should not be permitted an opportunity of answering questions which he was entitled to answer. I wish the House would consider for a moment what is the position of a prisoner now and what will be his position after this Bill is passed? At present a prisoner has the right—not as a matter of favour, but a right—to present to the Court his version of any facts he wishes to put before the jury. That is established beyond all doubt; and I have in my possession a printed statement by Mr. Justice Hawkins, and other high authorities in criminal law, in which it is pointed out that it is the absolute right of the prisoner, at the present moment, to state his version of the case and of the facts to the jury. A prisoner has a right to do that without question, either by judge or prosecuting counsel, and that is a right which, by this Bill, the House proposes to take from him. It is a right with which this House ought not lightly to interfere. If a prisoner has that right now, what becomes of all this argument that the prisoner should be allowed to give his version to the jury? The only right a prisoner has not got is the right of being cross-examined, and that is what it is proposed to confer. I suppose the Government will say a prisoner has not at present the right to make that statement upon oath. That is so, but what value will be attached to the oath of an unfortunate man, against whom there had been found a primâ facie case? He will give his evidence, and will step out of the witness box, a prejudiced and varnished witness in his own defence. The prisoner in that case will not be liable 1052 to pains and penalties for perjury—unless I am to be told that a witness upon trial for his life, who perjures himself in his attempt to get off, will be prosecuted for the offence. To say that you are going to prosecute a man for perjury under such circumstances would be absurd. Take a case of treason or treason-felony. A man is brought up to be examined on his own behalf, and he is cross-examined by the Crown with the view of finding out information against his confréres, and he refuses to answer such questions. Are you going to convict him for refusing to give further evidence where he has come forward merely on his own behalf? Sir, I believe that in this matter you propose to turn the law of evidence in criminal cases topsy-turvy by this Bill. The prisoner at present has the fullest opportunity of stating all that he wants to be said with the view of presenting the facts before the jury. But, Sir, when the prisoner goes into the witness box, and when he has been examined, who is to examine him? Who is to tell him what is material and what is immaterial? Sir, I can understand this Bill being of great benefit to the city swindler, who has plenty of money, and who has an intelligent solicitor and an intelligent counsel to take his evidence beforehand, and to see how far his evidence may be relevant and how careful he ought to be in putting it to the jury. But those are not the kind of prisoners we are concerned with in this House. But take the ignorant man, the uneducated man, the undefended man, the man who has nobody to tell him how far one matter is relevant and another irrelevant—is that man to be told, "You can come out of the dock and you can go into the witness box, tarnished as you are as a man against whom there is a primâ facie case"? [Sir E. CLARKE: Why is he tarnished?] He is tarnished because there has been a primâ facie case found against him, and from the fact that he is in the dock. You say to him, "You can come forward and give your version." The unfortunate man comes forward, and perhaps by a misapplied phrase, or misapplied language, he gives an entirely different idea to the jury from what he meant to give. And because he has neither solicitor nor counsel 1053 to defend him, having taken that step, he lays himself open to have himself cross-examined, and criticised from the beginning to the end of his career by one of the most trained counsel that could be sent for that purpose. Do you mean to tell me that that is fair, that this is equal justice to rich and poor? No, Sir, it is as the honourable and learned Member for Louth, with whom I do not often agree, said, a trap for the unwary prisoner who has no one to defend him. It seems to me that the idea of subjecting a man under these conditions to cross-examination by learned and skilled counsel is almost, in fact, a species of cruelty to the prisoner which you could not inflict, or allow to be inflicted, upon any person in any of the ordinary inquiries which are necessarily held from day to day in the ordinary business of life. Sir, I say such a position as that would be absolutely intolerable. It is true that this Bill does lay down one exception. It provides that the prisoner is not to be cross-examined with regard to certain matters unless he ventures to suggest that he is of good character or that his opponents have a bad one. Well, just fancy an ignorant prisoner steering his way in putting questions to make out his own case, and trying not to suggest that those who are against him have bad characters, and trying not to suggest for a moment that he has a good one himself. What a ridiculous limitation to lay down for the guidance of a prisoner! Sir, I myself think that it would be far better, if you are to have this principle of a prisoner being examined on his own behalf at all, to do away with all these restrictions and limitations that provide that the prisoner must be cross-examined to the fullest extent of cross-examination. And I must say that, looking at the case from the other side, from the side of the prosecuting counsel, I can imagine nothing more calculated to lead to a miscarrying of justice than this: that while any witnesses for the Crown may be subjected to cross-examination as regards their previous character and antecedents, the prisoner himself is not to be subjected to any such examination. The jury would probably be entirely of opinion that there was nothing to examine the prisoner about as regarded his antecedents, and he probably would 1054 be allowed to go down, assuming that he escaped from the trap laid for him by the Bill, with the impression that absolutely nothing could be affirmed against him. I do not believe that even from the prosecuting counsel's point of view that could be an entirely satisfactory way of administering our criminal law before a jury. But, Sir, there is another matter my honourable and learned Friend the Member for Plymouth has said, that tine could at once know whether a witness was a truthful one. Well, I must say that my honourable and learned Friend lives in a happier sphere than I do, because, Sir, I think that most counsel will agree with me in this, that we have often thought that while our case was absolutely right and absolutely true, we have been beaten because our own witness has been a bad witness, and the witness on the other side has been a good witness. And that is not dependent upon the truth or falsehood of the particular evidence which the witnesses are giving, but it is dependent on the elements which go to make up either a good witness or a bad witness. The element of nervousness must enter into it, and the element of power of expression must enter into it. Will any of my honourable and learned Friends tell me that they have not seen in the witness box witnesses absolutely trying to tell what was true, and to put forward their case, when they were debarred almost from so doing by their nervousness on finding that they were confronted for the first time by an eminent counsel, who is to cross-examine them unexpectedly as to their evidence? Well, Sir, when the prosecuting counsel has done with the prisoner, he will have the judge to deal with. My honourable and learned Friend said, using a simpler phrase, that we were setting up fantastic imaginations as to the changes which would take place in the Bench and the Bar if this alteration in the law were made. Sir, I am not fostering any such fantastic imaginations. I know perfectly well that the moment a judge has made up his mind as to the rights or wrongs of a civil case, he cross-examines, or does not cross-examine, a witness according to his own particular view. I know perfectly well that judges are human beings, as well as anybody else, and I think it is becoming more the fashion every day for 1055 them to lean to the side which they think is right, and against the side which they think is wrong. And what you will have under this Bill is this: if questions are pretermitted by, say, inexperienced prosecuting counsel—if there is such a thing known to the law—and I am told such a thing exists—do you think that the judge would be carrying out his duty if he did not put those pretermitted questions himself. Sir, by degrees this arrangement has come in as a novelty in our law, but when it is the statute law of the country that a prisoner is to be cross-examined—and I think I have already shown that in every case that will be so—you will have the judge dealing with these cases as is done in civil cases, and you will have the judge cross-examining, according to the view which suggests itself to him in the evidence. I am not saying that it will be done out of any desire to convict the prisoner, for it may be in the other direction, and with a view to his acquittal. But I ask, is that a satisfactory system under our law, and is not that exactly what is done under the French system, which we have so often condemned, of asking prisoners to explain questions put to them from the Bench and not by counsel on one side or the other? No, Sir, there is no half-way house in this matter. Either you must leave the matter, as it is now left, that the Crown shall in all cases prove its case without the help of the prisoner, or you must leave it open to the prosecuting counsel or the judge to use their own discretion in putting such questions as may be necessary, according to the particular view that they take of the case. My honourable and learned Friend the Member for Plymouth, who spoke of these fantastic imaginings as to changes in the Bench or the Bar, which have no reality, had no doubt in his mind the superior courts; but, Sir, what will happen, say, before magistrates? This Bill makes no limitation, and I want to know whether the same argument applies to out-of-the-way proceedings before magistrates, some of whom may be experienced and some of whom may be inexperienced, in which they are trying prisoners who are not defended, or where the prosecution is not conducted by classes of counsel to whom 1056 my honourable and learned Friend refers. No, Sir, the matter will be left to be dealt with by them in some way, according to their own judgment, and according to their own lesser experience and responsibility, because they do not practise so much in the light of public criticism. Mr. Speaker, I think that the duties of prosecuting counsel are sufficiently irksome at present, as I think any man who has had to act as prosecuting or even as defending counsel will agree. But, Sir, I ask what would be our duties under this Bill? What are to be our duties when we are defending a man for his life, and when we have to weigh the pros and cons as to whether we can entrust the particular prisoner whom we are defending, having regard to his antecedents, having regard to his temperament, having regard to his education, and his power of expression, whether we are to entrust him to the tender mercies of the prosecuting counsel. What is the responsibility—or, rather, what will be the responsibility—of a prosecuting counsel when he sees before him a man whom the law tells him he is to cross-examine with all the arts and artifices he has learned in dealing with civil matters, which are comparatively unimportant, when he is told that it is his duty as prosecuting counsel to employ those same arts and artifices to the man who has been presented to the jury as a man whose life ought to be taken by his brothers, and when he is told that he ought to use the same methods as he had adopted in civil cases to obtain, if he can, a conviction of the man who is being tried? Sir, I can only say for myself that I should never, under any circumstances, accept a retainer to appear in such a case as that. The idea of subjecting a man on his trial for his life to cross-examination of counsel on various facts and incidents that may be brought before him, would make our business so irksome that I do not believe any honest man would care to prosecute a prisoner under such circumstances. I do not believe that any honest man—I certainly should not for my part—would ever accept a retainer to appear under such circumstances. The law is working well; the public make no complaint. Let us be satisfied with it.
§ MR. SERJEANT HEMPHILL (Tyrone, N.)
I agree with the honourable and learned Member, who has just sat down, that if Her Majesty's Government consented to refer this Bill to a Select Committee I should be disposed to vote for the Second Reading, but in case that is not done I feel it my duty certainly to oppose this Measure as one which, in my opinion, is most, injurious to the administration of justice. There is one argument to which there can be no answer whatever. If the object of this Bill is either to "appal the guilty or make bold the free," on what ground can Her Majesty's Government defend their action in not extending this Bill to Ireland? Can it be said for a moment that innocent men in Ireland do not require the same protection from the law as they do in England? The Government stands condemned by their action by excluding Ireland from this Bill. The common law of Ireland is the common law of England, and the Members of this House should never lose sight of that consideration. If the House withholds the right to legislate for them selves from the Irish people it ought to give to them the same facilities for the administration of justice as it gives, or is willing to give, to England. If this Bill were referred to a Select Committee authority would be given to those who administer the criminal justice of Ireland to come forward and make a case for withholding the Bill from both parts of the Empire, or for its extension to the other country; but, leaving that consideration on one side, I confess that this Measure seems to strike at the very first principles of the criminal law. Look at the Bill, and you will find it applies to every crime, from high treason to common assault. There is no distinction made, and it completely subverts the principle upon which our law is based, that every prisoner is presumed to be innocent until his crime is established by the evidence brought against him. That is the foundation of the criminal law, that every man is presumed to be innocent. Therefore, according to the way in which the law is administered, unless the Crown makes out a case by reliable witnesses, the judge who tries the case is bound to direct an acquittal. 1058 There, is no analogy whatever between a civil action and a criminal trial, because in the case of a civil action there is no presumption either upon the one side or the other, and therefore it has been conceded, and in my opinion rightly conceded, that a defect in our law has been rectified by legislation of this character in connection with civil actions, and that the parties—no matter how much they may be interested in the subject matter and the result of the action—should be admissible as witnesses, but that does not at all apply in a criminal trial, because the law does at the present time presume every man to be innocent, and requires the Crown to establish the guilt of a prisoner before a jury can be called upon to convict him. What would be the position under those circumstances? One argument was used by the Attorney General in his speech. He said in 26 statutes this procedure was admissible, but if we look at those statutes we find they have reference to the different classes of offences in connection with immorality or fraud. The principal one referred to by most speakers was the Criminal Law Amendment Act. In that case it may be quite reasonable to give a prisoner an opportunity of being examined, because, from the peculiar nature of the case, it may be that circumstances full of suspicion might be cleared up by some explanation given by the accused. So it is with regard to a case of fraudulent trustees, and other matters where there might be, under the peculiar circumstances of the case, an opportunity offered of explaining away facts which at first blush were pregnant with suspicion. But take the case of a person charged with high treason at common law. What principle of justice would there be in asking the accused person to come forward and be examined as a witness? Now, practically speaking, as has been well observed, the non-production of a witness whose evidence is admissible is tantamount to his giving evidence in favour of the Crown. The jurors, of course, are only men, and if there is a case made out against a party charged with a particular crime, and if that party, having an opportunity of coming forward, does not come forward and explain his case, the inference is obvious that he could not explain it and therefore he must be guilty. 1059 This procedure shifts upon the prisoner the onus of proof, which, according to the Constitution of the Empire, should be upon the Crown, and any lawyer practising in the courts knows that if the defendant in an action for libel, or for goods sold and delivered, where the defendant may be examined is not examined he has no chance whatever. The jury at once assume that the plaintiff's case is just and true, and the defendant has no defence to the action. Precisely the same result would follow in criminal cases, and the consequence would be that in a case where otherwise the jury might, upon the evidence, entertain a reasonable doubt, that doubt would be displaced, not by the force of the evidence, but by the suspicious circumstance of the prisoner not coming forward and calling himself, as it were, as a witness. Then, again, in what a position do you place the prisoner. Take him as a witness. He is to be examined, of course, upon oath. What an awful temptation you hold out to this unfortunate man to perjure himself! To his crime, assuming that he is guilty, you add the crime of perjury. You expose him to a temptation which the average, the ordinary man, would be unable to resist. You call upon that man to go into the box, and to confess as to the truth or not of the case for the Crown. I have heard judge after judge for many years in my country say that ever since the change in the law, which enables parties interested in civil actions to be examined as witnesses in their own behalf, that the amount of perjury that comes before the court, is simply frightful. You are going to add to that amount of perjury and lying by the temptation you are throwing in the way of these men by giving them the chance of petting into the witness box and adding to their crime which they have committed by allowing them upon their oath to forswear themselves before God and man. I say that this House should hesitate before it passes this Bill. Take the case of a guilty man—I am assuming ex hypothesi the man is guilty—or take the case of an innocent man, put him into the box, a man labouring under the suspicion of the charge of some serious crime, a man who has been for months 1060 in gaol if he is not on bail. How is he placed? He is ashamed to lift his eyes in a Court of Justice. The man, though innocent, is overwhelmed with the suspicion and the charge brought against him. How can you expect to find that clearness of intellect and accuracy of memory which is so necessary to constitute a good witness, even in one's own case? He is handicapped in such a manner that it would be vain to expect the evidence to come pure and unpolluted from his lips. Take the case of the stupid man who has not a clear way of expressing himself, and is innocent of the crime; that man conies into the witness box, is examined, and this Bill, instead of being an advantage, would secure the conviction of a prisoner in such a case. Then there is this other provision of the Bill. A prisoner may be cross-examined as to his own character—that is subverting the foundation of our law—it is bringing into our law the old principle of the wolf and the lamb. Now, in a criminal case, a prisoner can only be tried for the offence on which he stands charged, and for that reason the law is most jealous as it is, because if he has been convicted of former offences, the fact of these convictions cannot be disclosed to the jury. A man may have stolen a sheep twelve months ago. He is tried for the larceny of a sheep yesterday, and by our law the jury have to determine if he is guilty of yesterday's larceny or not. You can go back for twelve months, and according to this Bill you put the man into the witness box. The jury have a doubt on the prosecutor's case, and the prosecuting counsel puts to the prisoner—"Were not you charged with sheep stealing twelve months ago?" What chance would a prisoner have in such a case? None whatever. It would distract the minds of the jury—it would be impossible to obviate the result according to this Bill. No judge could check it. Take the case of a weak judge. How could any judge interpose by preventing counsel putting a question which would secure the conviction of a prisoner? The whole of a man's past career would be subject to be examined. [An HONOURABLE MEMBER: Not under the Bill.] Yes; for if a Crown witness is cross-examined as to character, then the prisoner can be cross-examined as to his previous character. 1061 How can you argue against that? Suppose a prisoner is defended by counsel. Is he not to cross-examine a Crown witness as to his previous character, when the whole case must depend on the truth of that witness? The moment he does that he opens the floodgates. Such an idea is monstrous—it would mislead the jury, it would lead to the perpetration of an injustice. Now what advantage would you have by passing this Bill? It has been suggested that innocent men have been convicted. Was the object merely to protect innocent men? If so, why not extend it to every part of the Empire? Why should innocent men in Ireland suffer while they do not in England? But will it have any effect? My idea is that it will lead to the very opposite result. My idea is that it will prevent juries from seeing what they have to try—namely, whether it has been established to their satisfaction that a prisoner is guilty of the offence of which at the time he stands charged. The form in Scotland is "Not proven," the effect of which is the same as our verdict of not guilty. It is more logical and more satisfactory. It is only by the law, and according to the law, that the Executive can deprive men of their lives or liberty, and they have no right to imperil the foundation on which that law rests, and the foundation of that is that the duty lies on the Crown to establish by evidence the correctness of the charge before the prisoner is called on to open his case. I trust that after this Debate my honourable and learned Friend the Attorney General may see his way to refer this Bill to a Select Committee in order that it may be thoroughly threshed out.
§ MR. BUCKNILL (Surrey, Mid)
With regard to the expression used by my right honourable and learned Friend who has just sat down, and who used the expression "fantastic imagination," if he was speaking of his experience of the administration of the criminal law in England as I have known it, his imagination is indeed fantastical; and if he is speaking of Ireland, of which he has very great experience, it is well that this Bill does not apply to that country. He 1062 has also spoken of the tainted and tarnished witnesses in the case of an accused person. In England, thank God, we know nothing of the accused person being, in the eyes of the court, or jury, or counsel, or anybody else, tainted or tarnished, nor will he be. He is going to speak on oath on his own behalf. We know nothing, nor do I believe my right honourable and learned Friend knows anything, about being instructed to try and damn an accused person. I am perfectly satisfied that in England nothing of the sort has ever occurred. Again, the right honourable and learned Gentleman has spoken of the tender mercies of the prosecuting counsel. [Mr. SWIFT MACNRILL: Hear, hear!] Does the honourable and learned Member who cried "Hear, hear" know anything of the administration of the criminal law in this country? [An IRISH MEMBER: We know something about it in Ireland.] I am not speaking of Ireland. We are now speaking of a Bill that has no reference to Ireland; let Ireland speak for itself at the proper time. We are dealing with the Second Reading of a Bill which does not refer to Ireland, and I protest against the use of any language which suggests that prosecuting counsel in this country set traps to damn an accused person. I am not afraid to stand up and say that, with my long experience of the criminal law, I never knew it tried, and do not believe it ever will be tried with success in this country. Neither judge nor counsel would for one moment allow such a trap to be set for an accused person. No Englishman would set a trap. Again I ask, do honourable Members speak of England?
§ MR. BUCKNILL
I invite the hon. Member to stand up when the time comes and state what those traps were. I do not think the honourable Member had an opportunity of being examined, but I am quite sure that if he had he would not have been slow to answer with ability the interrogating counsel. I object to this Bill going to a Select Committee. I 1063 do not understand that this Bill has been produced for the purpose of securing the convictions or acquittals of accused persons, but for the purpose of improving or perfecting the machinery for the administration of justice. If that is so, there is no reason why it should not pass the Second Reading. It has been tried in other countries with success, and particularly in our Colonies and the United States, and it has been spoken of from time to time by great and learned judges in this country. I ask permission to repeat the observation of the late Mr. Russell Gurney, the Recorder of London, than whom there was no more eminent, judge in criminal matters, who declared that he had often felt that if he could in his judicial capacity have put a question or two to an accused person he could have made the issue perfectly clear to himself and to the jury, whereas their verdict was necessarily given somewhat in the dark. If it is to be assumed that this new machinery is to be used unmercifully, unfairly, trickily, and dishonestly—I say if—then the Bill is one to which this House will not give a Second Reading. But until the House is satisfied of that, then, for Heaven's sake, let the machinery of getting at the truth be so used that you may work in the light, instead of groping in the dark, as in too many cases is done at present. Will it be said that because a prisoner is going to give evidence on his own behalf that he is going to perjure himself? If you believe a policeman, whose evidence is so often attacked in criminal courts, if you believe one class of witness, why not believe the other? There is one danger, I admit. With incompetent justices and an incompetent counsel you may put the prisoner at a disadvantage, and I should like myself to see a repetition of the Bill of 1888, which excluded the evidence of the accused person before the grand jury. The grand jury is a purely inquisitorial body. It consists of many men who may ask questions of any sort. They hold their inquiry in their private room, and I do see danger in the accused person being examined in private before the grand jury.
§ MR. BUCKNILL
In the State of Pennsylvania the accused person is not entitled to be interrogated before magistrates or grand jury, and I should like that system in this country. As to traps being set for illiterate persons, if a rich City swindler was before me, as a juryman. I should be careful how I believed him, but if I had before me in the box an ignorant agricultural labourer, who, from his demeanour, was palpably telling the truth, I should acquit him, because I could see his story was to be believed. Jurors are not such fools as to be misled by the appeals of counsel to the extent some honourable Members imagine. You may talk of fantastic imagination! You get 12 jurymen together, and you have no idea, Mr. Speaker—I beg pardon, Mr. Speaker, at least some men have no idea—to what an extent our speeches are discounted in the jury box. The right honourable Gentleman the Member for Montrose on one occasion said that this proposed improvement in the criminal law would be "a humane and beneficent change." [Mr. MORLEY: When did I say that?] I cannot give the reference to the right honourable Gentleman now, but I will send it to him later on. It is a humane and beneficent Bill. I do maintain that the House should give this Bill a Second Reading, because it tends to improve the machinery of the law, not only to convict the guilty, but to acquit the innocent.
§ MR. BRYN ROBERTS (Carnarvonshire,) Eifion
said it had been pointed out with great force that if the Bill was passed it would be absolutely impossible for any prisoner to keep himself out of the witness box. He must plead guilty or go into the witness box. His belief was that 90 per cent. of the persons charged in this country were guilty, and the result would be that 90 per cent. would be forced to go into the box and perjure themselves by swearing that they were guiltless. Now that would be such an appalling result that he thought no legislation should be passed on it. Referring to the number of prosecutions taken before Assize and Quarter Sessions Courts, as compared with the number before magistrates, the honourable 1065 Member said that the criminal cases before magistrates were seven times as numerous as before the Assize and Quarter Sessions Courts, and in nine cases out of ten, if the Bill was passed, prisoners as witnesses would be committing perjury, and he could not see anything tending more to the demoralisation of the country than the habitual spectacle of this wholesale perjury. That seemed to him to be such a strong consideration that it should not be resorted to, and it was important, in the interest of innocent persons. The honourable Member who has just spoken appealed to his years of experience; he said the prisoner in England was not a tainted person, but this was a Bill to remove that taint. Why refuse his evidence, then? If a man was guilty he would perjure himself in order to get free. There was a story told of a well-known man in a divorce court, who was asked if he had been guilty of misconduct, and he said, "I have not," adding, "if I had I would not admit it." He believed there was some little advantage in the Bill—it would help to convict the guilty, but as he believed a very large proportion of the guilty were at present convicted, he was not willing that there should be a risk of wholesale perjury for so small an advantage.
§ SIR ELLIOTT LEES (Birkenhead)
I should apologise for taking any part at all in this Debate, except that the hon. and learned Member for Dumfries seemed rather to invite the assistance of laymen in determining a question upon, which lawyers themselves are evidently at considerable variance. Although there are many lawyers in this House, and we have listened to their views upon this subject with great interest, after all the jury upon this question must be the great bulk of honourable Members in this House who are not trained in the law. It seems to me that the onus probandi in this matter rests entirely with those who wish to change the law, and unless they are able to make out a good and strong case for the change we ought to rest content with the system and administration of the law, which has been regarded with respect, not only by the 1066 educated classes of this country, but by all classes throughout the whole country. I am sorry to say that through no fault of my own I was too late to hear the speech of the right honourable and learned Gentleman the Attorney General, but I have listened with much attention to the speeches of three honourable Members of this House who are always listened to with great attention and respect—the honourable and learned Member for Dumfries, the right honourable and learned Member for Plymouth, and the honourable and learned Member for the Epsom Division. I am bound to say that I think none of those speeches, nor, indeed, any of the speeches to which we have listened, has been really convincing. The honourable and learned Member for Dumfries supported this change in the law partly on the ground that the change now advocated is already the law in our Colonies and in the United States of America. That I am bound to say is not an argument that carries any weight with me. I am not aware that either in the Colonies or in the United States is the law of the land as much respected by all classes, or that as much confidence is felt in its justice, as is the case in this country. I was not at all alarmed at the bogey which the right honourable and learned Gentleman conjured up as to blackmailing accusations being brought against some innocent man by people leagued together in a conspiracy against him, and he, with his mouth shut, being unable to adduce evidence to refute the charges brought against him. It seems to me that the only case in which a man of the position the honourable and learned Member describes—a man worth blackmailing—could be brought into such a false position would be one of those cases under the Criminal Law Procedure Act or a similar Act—cases in which it is already open to an accused person to give evidence on his own behalf. I think in no other case would the character of a man of decent life be at all at the mercy of conspirators who combined together to bear false witness against him. The right honourable and learned Member for Plymouth invited us to remove this last taint of barbarism in the law of England. I am bound to say that this is the first time that I have 1067 heard it stated that there is any taint of barbarism in the law of this country. ["Oh, oh!"] I hear a Gentleman say "Oh, oh!" Let me explain. I have heard accusations of barbarism brought against prison discipline, and I have heard complaints of the barbarous severity of sentences, but I have never heard a charge of barbarism brought against the manner in which our criminal trials are conducted. I believe that, on the contrary, the whole world regards with admiration the manner in which the trials of prisoners before judges and juries are conducted in England. And, after all, we must consider, and I think it has been rather lost sight of in the speeches to which we have listened this evening, the effect which this change will have, not only on the trained legal intellect of the judge, but also on the common juror—a man who is not, like the judge, accustomed to weigh evidence and discriminate between witnesses. On the one hand, you have the trained legal intellect of the judge, who has all his life been accustomed to weigh evidence and determine whether a witness is speaking truth or falsehood. The juror, perhaps for the first time in his life, finds himself in a Court of Justice, and finds cast upon him the enormous responsibility of determining the guilt or innocence of a fellow-creature charged with the commission of crime. He is quite unaccustomed to weighing evidence or judging whether a man is speaking truth or not, and although it may be quite true that the judge with his trained intellect will do all he can to prevent any miscarriage of justice, I do not think that the same thing applies to the ordinary juror with his untrained ability. Very frequently, I think, the verdict depends solely on the impression which the evidence of the prisoner may have made on the jury. It seems to me that if you adopt this suggested change you place yourselves in this dilemma: cither you must allow, and even encourage, cross-examination or not. If you allow and encourage cross-examination of the accused person you would bring our system into line with the system which prevails in France, and which is so repug- 1068 nant to English ideas, and you would, I believe, create a public sympathy with the accused, which I am afraid would militate very greatly against the interests of justice. If, on the other hand, you disallow cross-examination, I think you give an unfair advantage to the skilled liar, the self-confident, plausible scoundrel, who could get up his case well, and who would not be afraid to stand up and speak it out before judge and jury. I must say I sympathise very much with an innocent man called upon suddenly to stand the terrible ordeal of confronting a judge and jury upon a matter which may be of lasting consequence to him throughout his future life. Why, Sir, I never rise to address this House without feelings of the most intense trepidation and nervousness, although the only penalty which I could possibly incur if I were unable to do myself justice would be a mauvais quatre d'heure. But take the case of an unfortunate man standing in a Court of Justice for the first time in his life, submitted to cross-examination from the trained intellect of, say, the right honourable and learned Member for Plymouth, ready to extract from him the minutest details of his case. I am quite aware that no undue pressure would be brought to bear by any counsel high up in the ranks of the English Bar, but I cannot help thinking that it is very probable that in such circumstances a really innocent man might cut a most despicable figure. Those of us who have had acquaintance with the criminal classes in the capacity of magistrates know that it is the rough, voluble gipsy sort of prisoner who is most ready in concocting a defence. A man of the labouring classes, an agricultural labourer, for instance, is a picture of incoherent inarticulate innocence, which could not but produce a very sorry effect upon any jury not trained in discriminating between witnesses. I am bound to say that upon those grounds I believe we ought not to adopt this change in the law. It is said, of course, that the prisoner is not obliged by this Measure to give evidence. That is perfectly true; he is a competent, but not a compellable witness. I do not know whether honourable Members have 1069 heard of a case tried before the Common Serjeant two or three years ago. In that case the counsel for the prosecution brought forward, as a damning fact against the accused, that he had not ventured to go into the box and give evidence, although it was one of those cases in which an accused person is at liberty to give evidence on his own behalf. The Common Serjeant interfered and pointed cut that that must not be used as a matter of prejudice against the prisoner. Now, the Common Serjeant is a man of great ability, and a man of extreme conservative tendencies, and I have no doubt his extreme conservative tendencies caused him to take that view of the law on that occasion. But supposing it once became the law and the practice of this land that accused persons should give evidence on their own behalf, it would naturally be held by every jury that a man who would not go into the box had some reason for not going into the box, and that he was probably guilty of the offence with which he was charged. I would only say that I am not at all affected by the argument that we have already brought about this change with regard to certain classes of offences. At the time the law was changed with regard to offences under the Criminal Law Amendment Act, and similar offences, it was then pointed out by many honourable Members that that was the thin end of the wedge. I have always thought that the "thin end of the wedge" argument was a fool's argument, but, looking at the way in which it has been driven home this evening, I am not sure that, after all, the fools were not right. To say that we in this House are to be guided solely by principles of symmetry in legislation rather than by logic and consistency would be to invite us to upset our constitution and injure the whole history of our country. What we want is a system by which we shall secure justice and a system which will secure the approval of all classes in this country and their confidence in the administration of justice. I can well believe that, under the proposed change, you might here and there secure the punishment of guilt which might otherwise go uuchastised. I can well 1070 believe that, under the proposed change, you might even secure the escape of an innocent person who would otherwise suffer. But I do believe that in the long run this change in our administration of justice would undermine the confidence of the people in this country in their Courts of Justice, and, therefore, I shall vote against this Bill, believing as I do that the confidence of the people in this country in their Courts of Justice is a factor of the greatest value in the well-being of the nation.
§ MR. S. T. EVANS (Glamorgan, Mid)
I shall not trespass long on the attention of the House, but I desire to give the House the benefit of what little experience I have gained, and perhaps I may be allowed to say that in one respect I am in a unique position in this matter, because I have had experience in both branches of the legal profession, and it may be said that a solicitor who has to prepare a case for counsel very often sees difficulties which the counsel himself, conducting the case in court, has not to deal with. Sir, the experience that I have had drives me to the conclusion that this is a very grave change in the law, and that it is a change which ought not to be adopted unless an overwhelming case can be made out in its favour. It is a great change in a most important branch of our law. Everybody will admit that the criminal law of the country, that branch of the law which deals not with the civil rights, but with the lives and the liberties of the people, is much more important and more far-reaching than the branch of the law which deals with municipal rights and civil disputes between citizens. I contend that, although we have had here to-night speeches from the most eminent leaders of the profession, they have failed absolutely to make out what I think ought to be the basis of any such Measure as this—namely, that any real injustice has followed from the practice of the law according to the procedure now adopted. There should be an overwhelming case made out in favour of any such change of our law; because we must assume that, in a 1071 country like this, whose criminal procedure is the admiration of the nations of the world, that procedure which has been arrived at by the wisdom of generations is, in the main, a good one; and you ought not to tamper with it merely in order that you may bring the criminal law into uniformity with the civil law of the country. Now, the grounds which have been advanced in favour of this Measure have been, I venture to submit, altogether theoretical grounds. It has been said if you allow the parties themselves in a civil dispute to give evidence, why should you not allow an accused person to give evidence, when the issue may be of much greater importance than any civil dispute could possibly raise? Well, but the advocates of symmetry and uniformity between the two branches of the law themselves object to the criminal law being placed entirely, and in every respect, upon the same footing. In the course of this Session we have had a proposal for the establishment of a Court of Appeal in criminal cases. It was pointed out that, whereas in a county court case involving £20 a litigant had a right of appeal to the Divisional Court, to the Court of Appeal, and perhaps to the final court of appeal in the kingdom—the House of Lords—there is no appeal at all from the result of a criminal trial. Nevertheless, many of the advocates of this Bill, including the Attorney General and the honourable and learned Member for Plymouth, argued strenuously, if I am not mistaken, against the establishment of a Court of Criminal Appeal. If it is right, in the matter now under discussion, to bring the criminal law into line with the civil law, why should you object, in important matters involving the life and liberty of the subject, to establish a Court of Criminal Appeal? The real truth of the matter is—I hope my honourable Friends opposite will not object to my putting it in this way—that there is a confusion of ideas about the analogy which has been drawn between cases in the Civil Courts and cases in the Criminal Courts. What is the confusion? Parties before a Civil Court are contending parties; there are no contending parties in the Criminal Courts of this 1072 country. The prosecutor is the Queen; the other party, if he may be properly called a party, is the accused. There is no contest between them at all. The allegation is that the accused is guilty of some crime that is charged against him, and the Crown undertakes to establish that charge. The accused has a right to say, "I am not guilty; prove your accusation against me if you can," and the result of that is that the criminal trials of this country have been absolutely fair. The judges, especially in cases where the prisoners have not been defended, have considered it their duty to act in effect as advocates for the accused—not merely to elicit the truth, but to secure the fairest trial. The main object of our criminal trials is not the eliciting of truth—["Oh, oh!"] The right honourable Gentleman the Member for Bodmin, who says "Oh, oh!" is a theorist in almost every matter. I daresay that his theory is that the object of a criminal trial is to elicit the truth. I say, on the contrary, that the main object is to deter, as far as possible, the further commission of crime. There is an essential difference between myself and the right honourable Gentleman in that regard. If I am right that it is the proper object of a criminal prosecution to deter from the commission of crime, then the fairer you have the trial the better, and, even if at times the guilty person does get acquitted, I believe that may be a much batter thing for him in the long run than if he is convicted and sent to prison. Now, Sir, I admit that these are the views of a practical man; and I say they are practically sound views. My honourable and learned Friend the Member for the Epsom Division said the defendant, if he is a competent witness, ought not to be regarded as a tainted or tarnished witness; but he is, at any rate, an interested witness; he could not be called a disinterested witness. The prosecuting counsel would say, if there were any doubt in the case, "Gentlemen, the defendant no doubt has denied his guilt, but can you place any reliance on his denial, when he refuses to go into the box, he being the person who is really most interested in the 1073 case?" The difficulties in the way of a man giving evidence in his own behalf have been already pointed out, but it may not be known to many Members of this House that there is at least one judge on the Bench who declines to allow a prisoner to go from the dock to the witness box to give his evidence. I have seen that within the last year. In cases where the defendant is an admissible witness now under the Criminal Law Amendment Act of 1885, if a defendant desires to give evidence before that learned judge he has to give it standing in the dock. Let us leave out of account the hardened gaol-bird, and suppose that the defendant is a man who has never been in a Court of Justice before, a nervous man, one to whom the whole scene is new, with trained ability of the highest order pitted against him in cross-examination. I say that a man in those circumstances, even though he be innocent, would be much more likely to inculpate himself than to extricate himself from the difficulties in which he is placed. Now, Sir, reference has been made to one or two cases in which it is said that if the accused had been allowed to give evidence the result would have been different. One was the bicycle case referred to by the right honourable and learned Gentleman the Member for Plymouth. In that case an alibi was set up. The learned judge who tried the case said it was the most perfect alibi he had ever heard in a Court of Justice, that it was not broken down or shaken in the slightest; and nobody who knew all the circumstances of the case could believe that if the accused himself had been called he could have strengthened it. If that case is probed to the bottom it will be found that it is really not an instance in favour of this change at all. I desire now to say one or two words with reference to the arguments which have been adduced from the fact that you already have many Acts of Parliament dealing with the criminal law of this country, under which the defendant himself can be called as a witness. I think the learned Attorney General said there were 25 or 26 of such Acts; but it is most important for the House to have 1074 regard to the nature of those Acts, and the subject matter with which they deal. The real truth of the matter is this: that the only Act of Parliament which deals with the criminal law, as generally understood, which allows defendants to give evidence in their own behalf, and therefore compels defendants to give evidence in their own behalf, is the Act of Parliament passed under somewhat peculiar circumstances in 1885—the Criminal Law Amendment Act. With regard to the other Acts of Parliament, I desire to indicate to the House the nature of those Acts. They are undoubtedly, in one sense, criminal Acts of Parliament, but not in the sense which people ordinarily attach to the word "criminal." They are criminal in the sense that prosecutions under them are undertaken in the name of the State, but they are really what may more properly be called penal Acts of Parliament—Acts under which the punishment imposed is not imprisonment, but pecuniary penalties. One of them is the Act of Parliament dealing with diseases of animals; if a man takes to market a sheep or cow against some statutory regulation or order he may be fined. That is a penal Act, and, in a sense, part of the criminal law of the country; but it is not one of those Acts of which we think when we speak of our Criminal Code. So with the Food and Drugs Adulteration Acts, the Intoxicating Liquors Acts, the Merchandise Marks Act, the Married Women's Property Act, the Corrupt and Illegal Practices Act, the Merchant Shipping Act, the Poor Law Amendment Act, the Army Act of 1892—that is the kind of legislation in regard to which you have introduced an exceptional provision, which it is now sought to make applicable to the ordinary criminal law of this country. I say that that legislation is not in the least in pari materiâ with the present proposal. What we are now asked to do is to subvert the ordinary procedure which has prevailed in this country for centuries, and to make an accused person a competent, and, therefore, a compellable witness. That is the important point. If you once say that a defendant is a competent witness, 1075 you might as well say at once that he is a compellable witness, because if a man is competent to tell his own story, and does not take the opportunity of doing so, the jury will say, as juries do say in the few cases where the present law gives that opportunity, "This man dare not go into the box to defend himself on oath and submit himself to cross-examination." Now, Sir, these are the arguments that occur to me against the principles of this Bill. I will not now go into the details of the Measure, but there are several of its details which are open to great objection. I do hope that the learned Attorney General will allow the Bill, if it is read a second time to-night, to go to a Select Committee. We have heard, in the course of this Debate, that the judges themselves are very much divided in their opinions about this Measure. Where expert opinion is so much divided it is surely not too much to ask, before you introduce this great change in our criminal law, that the Bill should be sent to a Select Committee. There the matter can be sifted; any cases which have been cited during the course of this Debate as instances for or against the Bill can be thoroughly tested; and if, after an exhaustive inquiry, the Select Committee reported in favour of the Measure it would have a much better chance of commending itself to the judgment of the House.
§ THE FIRST LORD OF THE TREASURY
I beg to make an appeal to the House to bring this interesting and important Debate to a conclusion. I would remind the House that the principle of the Bill, which, after all, is the one thing we are discussing to-night, has been decided eight times in the House of Lords, in which even those most opposed to that House will admit that legal talent is very strongly represented, and four times in the House of Commons. A Bill which has passed a Second Reading four times in the House of Commons in different Houses, with different majorities predominating, and 1076 under varying circumstances, is surely one which we may to-night pass after the full and important discussion which has taken place. The approval of Parliament, in both Houses, to the broad principle of the Bill has been declared so repeatedly and so decisively that I venture to think that the more than eight hours' Debate which we have had hardly requires amplification, and I would therefore respectfully ask the House to bring the Debate to a conclusion. A considerable interval, I may say, muse of necessity elapse before we take the Committee stage, and during that interval any gentleman interested in the details of the Bill can put down his suggestions upon the Amendment Paper. But, in the meanwhile, we have surely dealt at sufficient length with the broad principle of the Bill, with which alone we are concerned on the Motion for Second Reading, and I venture to hope that we shall arrive at a conclusion as to the Second Reading, at all events, before we separate this evening.
§ MR. J. MORLEY (Montrose Burghs)
It is quite true, as the right honourable Gentleman has said, that this Bill, or a Bill rather with the same principle underlying it (that principle being that a prisoner should be competent, though not compellable, to give evidence), has been several times passed by this House, and as many times or more passed in another place. It is true that in 1888 I myself, speaking, I suppose, from this box, said that I thought this change would be a humane and beneficent one. That was only an obiter dictum. The real point in that discussion was whether Ireland should or should not be included in the scope of that Measure. I resisted upon that occasion the inclusion of Ireland. That I was right the Government of today, at all events, will not deny, because they have excluded Ireland. To be perfectly frank with the House, I confess that I had not at that time considered the importance of all the bearings of this change. I hope the House will believe 1077 that I am not speaking in a Party sense, because the division among us to-night is not a Party division; but I have listened very carefully to nearly all the speeches to-night. Before the Session began the subject interested me, and I took the opportunity of gathering the opinions of legal authorities in Ireland and in this country, and I am bound to say that though I should certainly be rash to commit myself to the proposition that the principle of the Bill is not a humane and beneficent change, I have heard quite enough and read enough to satisfy me that this House and the House of Lords have not had a full opportunity of testing all the evidence which is to be given on this important subject. This is a matter which I should hope will never affect, personally, Members of this House, but all changes affecting the criminal law are changes which this House ought to regard with the utmost jealousy. The hon. Member for Warwick and Leamington put the case in a way which ought to weigh greatly with the House. He said that all of us are more or less educated persons, more or less able to take care of ourselves in cross-examination, but this is a change which will not affect, speaking generally, persons in our position, but humble and illiterate persons. Now, Sir, I have no desire to resist the Second Reading of the Bill, but the real point to-night is whether this House has had an opportunity of so testing authoritative opinion on this most difficult and important subject as to justify us in passing it. When we have the right honourable Gentleman the Member for Plymouth, who speaks with such great authority, on the one side, and the late Attorney General on the other—men of great authority and experience, giving entirely different views—I submit that it is a fair thing to accept the solution—and it is the only solution which will induce me to vote for the Second Reading—that it shall be referred to a Select Committee after the Second Reading, where the House will have an opportunity of hearing judges, counsel of various degree, and other persons competent to speak—for example, men like Sir George 1078 Lewis. I hope the House will not even then assent as a matter of course to the decision of lawyers. It is a question which affects our civil rights; it is a question of the utmost importance; and though I express no opinion as to the substantial merits of the question, I do submit that in a question going so deep into the roots of our social life it is right that this House should not make a change in the criminal law without taking the ordinary steps which are always taken in a Measure of this important character. In the case of a Measure of far less importance than this, no Ministry would dream of pressing it—they might introduce it, but they would not dream of pressing it on the House, in the face of a body of adverse opinion such as we have had evidenced to-night. In what I have said I have not been speaking for the sake of throwing obstacles in the way of the Bill, but I think it right that there should be an examination into the whole subject by a Committee, which could collect the authoritative opinion of eminent counsel and judges and others, and present a Report which would be recognised by the House as decisive on one side as on the other.
§ MR. MAURICE HEALY (Cork)
I trust that the Government will yield to the appeal which has just been addressed to them. I venture to suggest that whatever strong opinions lawyers may have about the Bill, the average layman, when he sees lawyer after lawyer getting up in this House and giving diametrically opposite opinions, and lawyer after lawyer giving diametrically opposite accounts as to the feelings entertained towards this Bill by the English Judiciary and the English Bar, will be anxious that the whole matter shall be thoroughly sifted before any legislation of this kind is placed on the Statute Book. We have had statement after statement on both sides of the House as to how this Bill is viewed by the judges. Some honourable Gentlemen have told us that English judges and experienced lawyers are unanimous in its favour; others have told us that the same body of expert opinion is unanimous against it. When these opposite statements are 1079 made it must be extremely difficult for any man who is not a lawyer to bring his mind to a determination upon the issue that is involved. Speaking as a lawyer myself, I am entirely opposed to the provisions of the Bill, and if there is anything more objectionable than the provisions of the Bill itself it is the pretences by which its introduction has been sought to be justified. It has been pretended that this Bill has been introduced for the protection of innocent persons. I think that the Debate has shown that its sole effect would be to secure an increased ratio of convictions to prisoners tried. Then it has been pretended that the object of this Bill is simply to enable prisoners to be examined on their own behalf, and that, forsooth, no prisoner is bound to take advantage of its provisions—that it is a new right and privilege conferred on prisoners for the first time, and that it cannot in any sense be suggested that it is anything more than a privilege. Any lawyer acquainted with the facts knows that it is a case of "You are not compelled, but you must." Any prisoner who refuses to avail himself of this opportunity of giving evidence might just as well at once plead guilty, because no jury who tries his case would refrain from viewing his failure to go into the box as being otherwise than conclusive evidence of his guilt. This Bill is a Bill to increase the possibilities of the conviction of prisoners, and it is a Bill to compel every prisoner tried on a criminal charge to be examined in his own defence. Now, I do ask the House to consider whether or not the Government have made any case for such a startling change in the fundamental principles of the criminal law of this country which has existed amongst us so many years. If it is suggested that this Bill is necessary to prevent the conviction of innocent prisoners, I would suppose that hon. Members who supported it would have been able to cite case after case in which the absence of the provisions contained in this Bill has led to the conviction of innocent prisoners. No attempt of that kind has been made. The warmest advocates of the Bill have not been able to cite a single specific case in which the law, as it stands, has led to that result. The 1080 Home Office, as we all know, continually exercises the power of reviewing criminal sentences and reinvestigating the cases of prisoners who have been found guilty. Notwithstanding that continual reviewing, we have not heard from the right honourable and learned Gentleman the Attorney General, or from the representative of the Home Office, any such catalogue of cases of innocent persons being convicted as we might have expected. There is not the smallest analogy between the civil and criminal branches of our law that can be prayed in aid as justifying this Measure. In the first place, the issues involved in a criminal case are enormously greater and more important than those in a civil case. A civil case involves nothing more than a specific sum of money, whereas a criminal case involves the life and liberty of a prisoner. Again, in a civil case you have two parties, the plaintiff and defendant, and examination and cross-examination are open to both parties. Whatever advantages or disadvantages arise therefore from the right to cross-examine in a civil case extends to both parties to the suit. If the plaintiff is telling lies and has to submit himself to cross-examination, and suffers from being compelled to do so, that is no hardship, because the defendant is similarly compelled to go into the box and has to submit to a similar disadvantage. In a criminal case nothing of the kind exists. You have no plaintiff. You have nominally the Queen as the prosecutor, but in truth and in fact there is only one party interested—namely, the prisoner. Then it is said that in civil cases the plaintiff and defendant are capable of being examined, and it is said that in criminal cases also the prisoner must necessarily be the person who knows most of the facts, and that therefore it is more or less of an absurdity to exclude from the witness-box the person who, from the nature of the case, must know most about the facts. I venture to take issue entirely as to that. In nine cases out of ten the prisoner, if he is an innocent man, knows nothing at all about the facts of the case. That wholly distinguishes a civil from a criminal case, because in a civil case both the plaintiff and the defendant must, from the necessity of 1081 the case, be fully acquainted with the facts in dispute, and must be competent to speak as to the truth or the falsehood of the issues which are raised in it. There is nothing of the kind in a criminal case. If a prisoner is innocent if follows also of necessity in nine cases out of ten that he knows nothing about the facts, and his defence must be the common defence of an alibi—that he was elsewhere when the offence was committed, and that he can offer the court no assistance in arriving at the true facts. It seems to me that these considerations wholly distinguish the case of a civil trial, where each party must, from the necessity of the case, be acquainted with the facts from his point of view, from the case of a criminal trial, and that therefore the analogy sought to be established between civil and criminal cases wholly breaks down. Now, there is another reason why there is no uncertainty involved in excluding prisoners from the witness box. The plaintiff and defendant in a civil case may fairly be expected to go into the facts, because they may fairly expect that what they say will receive due consideration at the hands of the jury; but a prisoner is placed in such a position that everything will be used against him, and what he says, in nine cases out of ten, cannot possibly serve him in any way whatever. [Interruption.] I am sorry that a Bill seeking to make such an enormous change in the criminal law of this country should excite so little interest. It appears to me that the Government who are introducing this Bill, and the Gentlemen who
|Acland-Hood, Capt. Sir A. F.||Begg, Ferdinand Faithfull||Chamberlain, Rt. Hn. J. (Birm)|
|Allhusen, Augustus H. Eden||Bentinck, Lord Henry C.||Chamberlain, J. Austen (Worc.)|
|Allsopp, Hon. George||Beresford, Lord Charles||Chaplin, Rt. Hon. Henry|
|Arnold, Alfred||Bethell, Commander||Charrington, Spencer|
|Ascroft, Robert||Blundell, Colonel Henry||Clark, Dr. G. B. (Caithness-sh.)|
|Atkinson, Rt. Hon. John||Bond, Edward||Clarke, Sir Edw. (Plymouth)|
|Baden-Powell, Sir G. Smyth||Boscawen, Arthur Griffith-||Cochrane, Hon. T. H. A. E.|
|Bagot, Capt. J. FitzRoy||Bousfield, William Robert||Coghill, Douglas Harry|
|Bailey, James (Walworth)||Bowles, Capt. H. F. (Mdsx)||Collings, Rt. Hon. Jesse|
|Baird, John Geo. Alexander||Brodrick, Rt. Hon. St. John||Colomb, Sir J. Chas. Ready|
|Balfour, Rt. Hon. A. J. (Manc)||Brookfield, A. Montagu||Compton, Lord Alwyne|
|Balfour, Rt. Hn. Grld W. (Leeds)||Bucknill, Thomas Townsend||Cook, Fred Lucas (Lambeth)|
|Banbury, Frederick George||Bullard, Sir Harry||Cooke, C. W. R. (Hereford)|
|Barry, F. Tress (Windsor)||Burns, John||Corbett, A. C. (Glasgow)|
|Bartley, George C. T.||Butcher, John George||Cornwallis, Fiennes S. W.|
|Barton, Dunbar Plunket||Cavendish, V. C. W. (Derbysh.)||Courtney, Rt. Hon. Leond. H.|
|Bathurst, Hon. Allen Benj.||Cecil, Lord Hugh||Cox, Robert|
|Beach, Rt. Hn. Sir M. H. (Brist'l)||Chaloner, Capt. R. G. W.||Cozens-Hardy, Herbt. Hardy|
§ are supporting it, are acting in a very light-hearted manner, and with a surprising levity. It seems to me that no case has been made for its introduction. It is not suggested that they want to convict a greater proportion of prisoners. The Attorney General has himself formally repudiated that consideration, and the only argument that he has adduced to the House is that it would enable innocent persons to establish their innocence. It appears to me that, the fallacy which underlies the argument of the right honourable Gentleman was in assuming that all criminal cases would be conducted on the same lines. He argued that because in certain criminal cases the examination of prisoners was allowed, that practice should be followed in all cases. My view is that the proper function of a Select Committee which should inquire into this Bill would be to discuss and find out what classes of criminal cases the Bill should be applied to. The right honourable Gentleman has very properly said that in case of offences against women no one desires to have the existing state of the law altered. That is so, as far as I am concerned. I myself would desire no change in that respect; but—
§ Motion made and Question proposed, "That the Question be now put."
§ House divided:—Aves 218; Noes 91.1083
|Cross, Alex. (Glasgow)||Jolliffe, Hon. H. George||Priestley, Sir W. O. (Edin.)|
|Curzon, Viscount (Bucks.)||Kearley, Hudson E.||Purvis, Robert|
|Dalbiac, Colonel Philip Hugh||Kemp, George||Pym, C. Guy|
|Dalkeith, Earl of||Kenyon, James||Rasch, Major Frederic Carne|
|Dalrymple, Sir Charles||Kimber, Henry||Renshaw, Charles Bine|
|Denny, Colonel||Kinloch, Sir J. G. Smyth||Rentoul, James Alexander|
|Disraeli, Coningsby Ralph||Lafone, Alfred||Richardson, J. (Durham)|
|Dixon-Hartland, Sir F. Dixon||Lawrence, Sir E. (Cornwall)||Ridley, Rt. Hon. Sir M. W.|
|Dorington, Sir John Edward||Lawrence, Wm. F. (L'pool)||Ritchie, Rt. Hon. C. T.|
|Douglas, Rt. Hon. A. Akers-||Lawson, John Grant (Yorks.)||Robertson, Herbert (Hackney)|
|Duncombe, Hon. Hubert V.||Lecky, Rt. Hon. Wm. E. H.||Round, James|
|Fardell, Sir T. George||Lees, Sir E. (Birkenhead)||Russell, Gen. F. S. (Cheltenham)|
|Farquharson, Dr. Robert||Legh, Hon. T. W. (Lancs.)||Russell, T. W. (Tyrone)|
|Fellowes, Hon. Ailwyn Edw.||Leigh-Bennett, Henry Currie||Sandys, Lieut.-Col. T. Myles|
|Fergusson, Rt. Hn. Sir J. (Manc.)||Llewellyn, E. H. (Somerset)||Savory, Sir Joseph|
|Finlay, Sir Robert Bannatyne||Lockwood, Lieut.-Col. A. R.||Scoble, Sir Andrew Richard|
|Fisher, William Hayes||Loder, Gerald Walter Erskine||Scott, Sir S. (Marylebone, W.)|
|Flannery, Fortescue||Logan, John William||Sharpe, William Edw. T.|
|Flower, Ernest||Long, Rt. Hon. W. (Liverp'l)||Sidebotham, J. W. (Cheshire)|
|Folkestone, Viscount||Lorne, Marquess of||Simeon, Sir Barrington|
|Forster, Henry William||Lowe, Francis William||Sinclair, Louis (Romford)|
|Forwood, Rt. Hon. Sir A. B.||Lucas-Shadwell, William||Smith, Hon. W. F. D. (Strand)|
|Garfit, William||Macartney, W. G. Ellison||Stanhope, Hon. Philip J.|
|Gedge, Sydney||Macdona, John Cumming||Stanley, Lord (Lancs.)|
|Gibbons, J. Lloyd||McArthur, Chas. (Liverpool)||Stewart, Sir M. J. M'Taggart|
|Giles, Charles Tyrrell||McKillop, James||Strauss, Arthur|
|Godson, Augustus Frederick||Malcolm, Ian||Strutt, Hon. Chas. Hedley|
|Goldsworthy, Major-General||Maple, Sir John Blundell||Sturt, Hon. Humphry Napier|
|Gordon, Hon. John Edward||Martin, Richard Biddulph||Talbot, Lord E. (Chichester)|
|Gorst, Rt. Hon. Sir J. Eldon||Massey-Mainwaring, Hn. W. F.||Thorburn, Walter|
|Goschen, Rt. Hn. G. J. (S. Geo's)||Meysey-Thompson, Sir H. M.||Thornton, Percy M.|
|Goschen, George J. (Sussex)||Mildmay, Francis Bingham||Tollemache, Henry James|
|Goulding, Edward Alfred||Milward, Colonel Victor||Tomlinson, Wm. Ed. Murray|
|Graham, Henry Robert||Monk, Charles James||Tritton, Charles Ernest|
|Gray, Ernest (West Ham)||Montagu, Hon. J. S. (Hants.)||Valentia, Viscount|
|Green, W. D. (Wednesbury)||Moon, Edward Robt. Pacy||Wanklyn, James Leslie|
|Greene, H. D. (Shrewsbury)||More, Robert Jasper||Warde, Lt.-Col.C. E. (Kent)|
|Greene, W. Raymond- (Cambs.)||Morrison, Walter||Warr, Augustus Frederick|
|Gretton, John||Morton, A. H. A. (Deptford)||Webster, R. G. (St. Pancras)|
|Greville, Captain||Mount, William George||Webster, Sir R. E. (I. of W.)|
|Halsey, Thomas Frederick||Muntz, Philip A.||Welby, Lieut.-Col. A. C. E.|
|Hamilton, Rt. Hon. Lord G.||Murdoch, Charles Townshend||Wentworth, Bruce C. Vernon-|
|Hanbury, Rt. Hon. R. Wm.||Murray, Rt. Hon. A. G. (Bute)||Wharton, Rt. Hon. J. Lloyd|
|Hanson, Sir Reginald||Murray, Chas. J. (Coventry)||Williams, Colonel R. (Dorset)|
|Heath, James||Murray, Col. W. (Bath)||Williams, J. Powell (Birm.)|
|Helder, Augustus||Myers, William Henry||Willox, Sir John Archibald|
|Hermon-Hodge, Robt. T.||Nicholson, Wm. Graham||Wilson-Todd, W. H. (Yorks.)|
|Hill, Rt. Hn. Lord A. (Down)||Nicol, Donald Ninian||Wodehouse, Edm. R. (Bath)|
|Hornby, William Henry||Norton, Capt. Cecil William||Wolff, Gustav Wilhelm|
|Hubbard, Hon. Evelyn||Parkes, Ebenezer||Wortley, Rt. Hon. C. B. Stuart-|
|Hutchinson, Capt. G. W. Grice-||Pender, James||Wylie, Alexander|
|Jebb, Richard Claverhouse||Penn, John||Young, Comm. (Berks, E.)|
|Jeffreys, Arthur Frederick||Phillpotts, Captain Arthur|
|Johnson-Ferguson, Jabez Ed.||Pierpoint, Robert||TELLERS FOR THE AYES—|
|Johnston, Wm. (Belfast)||Platt-Higgins, Frederick||Sir William Walrond and|
|Johnstone, John H. (Sussex)||Powell, Sir Francis Sharp||Mr. Anstruther.|
|Abraham, Wm. (Rhondda)||Caldwell, James||Engledew, Charles John|
|Allan, Wm. (Gateshead)||Causton, Richard Knight||Evans, S. T. (Gamorgan)|
|Allen, Wm. (Newc.-under-L.)||Cawley, Frederick||Evans, Sir F. H. (S'th'mpt'n)|
|Allison, Robert Andrew||Clough, Walter Owen||Evershed, Sydney|
|Asquith, Rt. Hon. Herbt. Hy.||Curran, Thos. B. (Donegal)||Ffrench, Peter|
|Atherley-Jones, L.||Daly, James||Fitzmaurice, Lord Edmond|
|Barlow, John Emmott||Davitt, Michael||Foster, Harry S. (Suffolk)|
|Billson, Alfred||Dillon, John||Foster, Sir W. (Derby Co.)|
|Birrell, Augustine||Doogan, P. C.||Galloway, William Johnson|
|Bolton, Thomas Dolling||Doughty, George||Goddard, Daniel Ford|
|Bowles, T. G. (King's Lynn)||Duckworth, James||Grey, Sir Edw. (Berwick)|
|Brunner, Sir J. Tomlinson||Dunn, Sir William||Haldane, Richard Burdon|
|Buchanan, Thos. Ryburn||Ellis, Thos. E. (Merionethsh.)||Hammond, John (Carlow)|
|Hayne, Rt. Hon. Chas. Seale-||Maddison, Fred.||Stevenson, Francis S.|
|Healy, Maurice (Cork)||Morgan, J. L. (Carmarthen)||Strachey, Edward|
|Healy, T. M. (N. Louth)||Morley, Chas. (Breconshire)||Sullivan, Donal (Westmeath)|
|Hedderwick, T. C. H.||Morley, Rt. Hn. J. (Montrose)||Tennant, Harold John|
|Hemphill, Rt. Hon. Chas. H.||Moss, Samuel||Thomas, A. (Carmarthen, E.)|
|Humphreys-Owen, Arthur C.||Nussey, Thomas Willans||Walton, J. L. (Leeds, S.)|
|Joicey, Sir James||O'Brien, Patrick (Kilkenny)||Walton, Joseph (Barnsley)|
|Jones, Wm. (Carnarvonshire)||O'Brien, P. J. (Tipperary)||Warner, Thos. Courtenay T.|
|Kitson, Sir James||O'Connor, Jas. (Wicklow, W.)||Wedderburn, Sir William|
|Lambert, George||Paulton, James Mellor||Williams, J. Carvell (Notts.)|
|Leng, Sir John||Pease, Jos. A. (Northumb.)||Wilson, Fredk. W. (Norfolk)|
|Lough, Thomas||Price, Robert John||Wilson, H. J. (York, W. R.)|
|Lyttelton, Hon. Alfred||Rickett, J. Compton||Wilson, John (Govan)|
|Macaleese, Daniel||Roberts, John Bryn (Eifion)||Younger, William|
|McDonnell, Dr. M. A. (Qn's Co.)||Robson, William Snowdon.|
|MacNeill, John Gordon Swift||Roche, Hon. J. (Kerry, E.)||TELLERS FOR THE NOES—|
|McArthur, Wm. (Cornwall)||Samuel, J. (Stockton-on-Tees)||Mr. Pickersgill and Mr.|
|M'Ghee, Richard||Seely, Charles Hilton||Carson.|
|McLeod, John||Shaw, C. E. (Stafford)|
|Main Question proposed. House divided:—Ayes 230; Noes 80.|
|Maple, Sir John Blundell||Price, Robert John||Talbot, Lord E. (Chichester)|
|Martin, Richard Biddulph||Priestley, Sir W. O. (Edin.)||Thomas, A. (Carmarthen, E.)|
|Massey-Mainwaring, Hn. W. F.||Purvis, Robert||Thorburn, Walter|
|Meysey-Thompson, Sir H. M.||Pym, C. Guy||Thornton, Percy M.|
|Mildmay, Francis Bingham||Rasch, Major Frederic Carne||Tollemache, Henry James|
|Milward, Colonel Victor||Renshaw, Charles Bine||Tomlinson, Wm. E. Murray|
|Monk, Charles James||Rentoul, James Alexander||Tritton, Charles Ernest|
|Montagu, Hon. J. S. (Hants.)||Richardson, J. (Durham)||Valentia, Viscount|
|Moon, Edward Robt. Pacy||Ridley, Rt. Hn. Sir M. W.||Wanklyn, James Leslie|
|More, Robert Jasper||Ritchie, Rt. Hon. C. T.||Warde, Lt.-Col. C. E. (Kent)|
|Morrison, Walter||Robertson, Herbert (Hackney)||Warr, Augustus Frederick|
|Morton, A. H. A. (Deptford)||Round, James||Webster, R. G. (St. Pancras)|
|Muntz, Philip A.||Russell, Gen. F. S. (Cheltenham)||Webster, Sir R. E. (I. of W.)|
|Murdoch, Chas. Townshend||Russell, T. W. (Tyrone)||Welby, Lieut.-Col. A. C. E.|
|Murray, Rt. Hn. A. G. (Bute)||Samuel, J. (Stockton-on-Tees)||Wentworth, Bruce C. Vernon-|
|Murray, Chas. J. (Coventry)||Sandys, Lieut.-Col. T. Myles||Wharton, Rt. Hon. John L.|
|Murray, Col. W. (Bath)||Savory, Sir Joseph||Williams, Colonel R. (Dorset)|
|Myers, William Henry||Scoble, Sir Andrew Richard||Williams, J. Carvell (Notts.)|
|Nicholson, W. G.||Scott, Sir S. (Marylebone, W.)||Williams, J. Powell (Birm.)|
|Nicol, Donald Ninian||Sharpe, William Edward T.||Willox, Sir John Archibald|
|Norton, Capt. Cecil William||Simeon, Sir Barrington||Wilson-Todd, W. H. (Yorks.)|
|Parkes, Ebenezer||Sinclair, Louis (Romford)||Wodehouse, Edm R. (Bath)|
|Paulton, James Mellor||Smith, Hon. W. F. D. (Strand)||Wolff, Gustav Wilhelm|
|Pease, Jos. A. (Northumb.)||Stanhope, Hon. Philip J.||Wortley, Rt. Hon. C. B. Stuart-|
|Pender, James||Stanley, Lord (Lancs.)||Wylie, Alexander|
|Penn, John||Stevenson, Francis S.||Young, Comm. (Berks, E.)|
|Phillpotts, Captain Arthur||Stewart, Sir M. J. M'Taggart|
|Pierpoint, Robert||Strauss, Arthur||TELLERS FOR THE AYES—|
|Platt-Higgins, Frederick||Strutt, Hon. Chas. Hedley||Sir William Walrond and|
|Powell, Sir Francis Sharp||Stmt, Hon. Humphry Napier||Mr. Anstruther.|
|Abraham, William (Rhondda)||Foster, Harry S. (Suffolk)||Moss, Samuel|
|Allen, Wm. (Newc.-under-L.)||Foster, Sir Walter (Derby Co.)||Mount, William George|
|Allison, Robert Andrew||Galloway, William Johnson||Nussey, Thomas Willans|
|Atherley-Jones, L.||Goddard, Daniel Ford||O'Brien, Patrick (Kilkenny)|
|Barlow, John Emmott||Godson, Augustus Frederick||O'Brien, P. J. (Tipperary)|
|Bartley, George C. T.||Goulding, Edward Alfred||O'Connor, J. (Wicklow, W.)|
|Bayley, Thos. (Derbyshire)||Green, W. D. (Wednesbury)||Rickett, J. Compton|
|Bolton, Thomas Dolling||Gretton, John||Roberts, John Bryn (Eifion)|
|Bowles, T. G. (Lynn Regis)||Hammond, John (Carlow)||Robson, William Snowdon|
|Brunner, Sir John Tomlinson||Hanson, Sir Reginald||Roche, Hon. J. (East Kerry)|
|Caldwell, James||Hayne, Rt. Hon. Chas. Seale-||Seely, Charles Hilton|
|Carson, Rt. Hon. Edward||Healy, Maurice (Cork)||Shaw, Chas. Ed. (Stafford)|
|Causton, Richard Knight||Healy, T. M. (N. Louth)||Sidebotham, J. W. (Cheshire)|
|Clough, Walter Owen||Hedderwick, T. C. H.||Strachey, Edward|
|Compton, Lord Alwyne||Hemphill, Rt. Hon. Chas. H.||Sullivan, Donal (Westmeath)|
|Cross, Alexander (Glasgow)||Kitson, Sir James||Tennant, Harold John|
|Curran, Thos. B. (Donegal)||Lambert, George||Walton, John L. (Leeds, S.)|
|Daly, James||Lees, Sir E. (Birkenhead)||Walton, Joseph (Barnsley)|
|Dillon, John||Leigh-Bennett, Henry Currie||Warner, Thos. Courtenay T.|
|Disraeli, Coningsby Ralph||Logan, John William||Wedderburn, Sir William|
|Doogan, P. C.||Lough, Thomas||Wilson, Fredk. W. (Norfolk)|
|Dorington, Sir John Edward||Macaleese, Daniel||Wilson, Hy. J. (York, W. R.)|
|Duckworth, James||MacNeill, John Gordon Swift||Wilson, John (Govan)|
|Ellis, T. E. (Merionethshire)||McArthur, Wm. (Cornwall)||Younger, William|
|Engledew, Charles John||Maddison, Fred.|
|Evans, Samuel T. (Glamorgan)||Morgan, J. L. (Carmarthen)||TELLERS FOR THE NOES—|
|Evershed, Sydney||Morley, Chas. (Breconshire)||Mr. Pickersgill and Mr.|
|Ffrench, Peter||Morley, Rt. Hn. J. (Montrose)||Lyttelton.|
§ House adjourned at 12.30.