§ THE ATTORNEY GENERAL (Sir R. WEBSTER,) Isle of WightWhen I assented to clause 3 of this Bill, it was pointed out to me that the clause went further than was necessary, and a suggestion was made that some limitation should be put upon it. So far as this Amendment is concerned—this new clause, subject to your ruling, Sir—the House will see is a real protection over clause 3. Of course, I shall have something to say as to the provision later on, but in moving this new clause I do not think I ought to detain the House.
§
New clause proposed—
Cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply."—(The. Attorney General.)
MR. GIBSON BOWLESI have a small Amendment to this clause, Sir, after the word "charged," at the end of the third line, I should like to insert 663 the words, "wife or husband of the person charged."
§ *MR. SPEAKERI have not yet put the Second Reading.
§
Question put—
That the clause be now read a second time.
§ MR. S. EVANSI should like to ask the right honourable Gentleman the Attorney General what cases he thinks will arise in which the right of reply will depend upon other circumstances. I am only aware of one, and that is where the Attorney General in criminal cases appears on behalf of the Crown. I do not know whether there are any other cases of any right. No doubt the clause carries out what are the wishes of the right honourable Gentleman, but I hope he will say a word or two on the subject.
MR. GIBSON BOWLESAs an Amendment to this clause I beg to move after the word "charged" at the end of the third line that the words "wife or husband of the person charged" be inserted, because I presume that whatever rule applies to the prisoner in this matter would also apply to the wife or husband of the prisoner, and if it does not, there should be some good reason why it does not. I merely move this in order to obtain some explanation.
§ SIR R. WEBSTERWe have discussed this question from many points of view, and I believe we ought not to go further in this clause. The real object of the clause is that there may be no disadvantage to the prisoner who is giving evidence himself, but that does not arise in the case of witnesses who are only witnesses and not persons charged. If a wife or a husband were called as a witness, in order to present their views of the facts as regards the prisoner, the matter would not arise.
MR. GIBSON BOWLESI think I was quite right in taking the opinion of the Attorney General, and after his explanation I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
664
§
New clause proposed—
In criminal proceedings in which the Attorney General, or any person acting as his representative, shall appear to prosecute for the Crown, the same rule with regard to the right of reply which is followed in other criminal proceedings shall apply."—(Mr. Pickersgill.)
§ MR. PICKERSGILL (Bethnal Green,. S.W.)The Motion which stands upon the Paper in my name will, as you have intimated to me, require some alteration, and I think that all difficulties will be met if it reads as follows—
In criminal proceedings in which the Attorney General, or Solicitor General or any persons acting as their representatives, shall appear to prosecute for the Crown, and the person charged shall give evidence on his own behalf, under this Act, the same rule with regard to the right of reply which is followed in other criminal proceedings shall apply.Now, the question which I wish to raise is one of considerable importance, and one in which the general public take a great interest, and in order to make the matter plain I think it is necessary in the first place to speak upon the best authority we have as to what the existing rule and law really is, and I think the best authority we have upon that subject is "Russell on Crime." In volume 3, page 456, there is a reference to this matter in which it is held that in cases of public prosecution for felony, instituted by the Crown, the law officers of the Crown and those who represent them are in strictness entitled to reply, although no evidence is produced on the part of the prisoner. According to some authorities it is only the Attorney General and not the Solicitor General who has the right to reply, but it is sufficient for my purpose to take that rule as applying the right beyond all dispute to the Attorney General, when he appears in criminal proceedings where the prosecution is instituted by the Crown. Now, Mr. Speaker, while fully admitting that that practice is established beyond all controversy, many of our most eminent judges have expressed strong disapprobation of it. Baron Marten said the right in question was a very objectionable one in his opinion, and he should limit it as far as possible that he wished that he could prevent even the Attorney General 665 of England from exercising it. There are many cases where our eminent judges have expressed a strong opinion of disapprobation to this right of the prosecution in proceedings instituted by the Crown. I think that rule really ought to be reversed, because, in a case where the Attorney General is brought down to prosecute, you have the greatest ability brought to bear against the prisoner; you have all the prestige of the highest legal officer of the Crown being engaged throughout the trial, and where, perhaps, there is already, or may be existing, in the minds of the jurymen a little prejudice against the prisoner in consequence of the case having been considered of such importance that the Attorney General has been brought down to prosecute—that is surely not a case where this exceptional privilege ought to be given. Only a few weeks ago the Attorney General was prosecuting in a case at the Central Criminal Court and the counsel on behalf of the prisoner objected to this right being exercised. Of course, he did not object to it in the legal sense of the word, but in his address to the jury he commented very strongly upon the fact that the Attorney General had chosen to insist upon this right. When the Attorney General came to reply he referred to the observations which had been made by the counsel on behalf of the prisoner, and said it was not a privilege to have this right of reply, but a very great responsibility. I state that case because I think it is a very significant illustration and strongly supports the action which I am now taking in asking Parliament now to express an opinion upon the subject, because it was recognised in that case by the profession, and recognised by the public generally, that that prosecution was conducted, if I may use the expression, with the very greatest moderation against the prisoner, and although the prosecution was conducted in so admirable a spirit, the right honourable Gentleman the Attorney General felt himself bound in the high office which he holds to claim this right of reply, and to exercise the great responsibility that in that position fell upon him I think that the Attorney General would himself be pleased if by the high authority of Parliament he were relieved of this great responsibility. We have 666 to consider whether Parliament will abrogate the old rule.
§ *MR. SPEAKEROrder, order! The only question which can be discussed on this Amendment is whether in cases where a prisoner has been called as a witness and no other evidence has been given for the defence the law officer of he Crown is to have the right of reply.
§ MR. PICKERSGILLAs under the Speaker's ruling I cannot argue in support of the general abrogation of the rule my Amendment would be open to the charge of being illogical. I quite admit that my Amendment is rather illogical, but though it is illogical I do not think that in substance and in fact any evil results will follow from it. What I am now submitting will result in this, that if the House decides that after the prisoner has given evidence the Attorney General is to have the right of reply, it would still be a case of a fortiori, and it may reasonably be assumed that no subsequent Attorney General would think himself justified in exercising the right.
§ SIR R. WEBSTERI think the House will recognise, whatever view they may take with regard to the general question, that it would be quite impossible to put this Amendment into the Bill. The responsibility of replying will still rest with the Attorney General if the Amendment is carried, in cases in Which -the prisoner is not called, and it will be rather absurd to take the right away in cases in which the prisoner is called. The honourable and learned Member has not stated the practice of the present day quite correctly. I believe that this special right of reply can only be exercised by the Attorney General or Solicitor General in person and cannot be exercised by their representatives. I can assure the House that it ought not to alter the present practice without very serious consideration. I am of opinion that in many oases the right of reply of the law officer is exercised to the advantage of the accused person. When several persons are charged together, as is the case of the Walsall anarchists at Stafford, and in long firm and fraudulent company cases, it is very important that the prosecution should have the 667 responsibility of polluting out the different degrees of guilt of the prisoners after the speeches of their counsel. I have myself been engaged in cases in which topics have been introduced which it has been my duty, in the interests of the prisoners themselves, to notice in the course of my reply, in order to prevent injustice being done. The Speaker has ruled that in respect of the right of the Attorney General and Solicitor General to reply when no evidence is called for the prisoner no change can be made by this Bill, and it would be absurd to make a kind of exception to the rule in connection with cases in which additional facilities for giving evidence are to be extended to prisoners. The Amendment would create anomalies, and I must resist it.
§ SIR E. CLARKE (Plymouth)It is with the greatest possible regret that I am obliged to take up a position antagonistic to my honourable and learned Friend on this occasion. The present practice under which law officers of the Crown have a special right of reply is, in my opinion, illogical and full of the greatest possibilities of unfairness to a person on his defence. Mr. Speaker, it may be said that this power is never abused, but I have myself known a case where an attempt was made to abuse it, and I am sure that it is capable of abuse. Well, my honourable and learned Friend gives the oddest reasons. He says, in certain cases, where several prisoners are charged together, it is to the advantage of a prisoner that the Attorney General should have this right of reply, because he may be able to point out the difference in the case as regards one prisoner or the other. Well, I venture to point out that that is not the duty of the prosecuting counsel; that is the duty of the judge. He speaks after the prosecuting counsel has finished, and to him may safely be left the duty—and it is a judicial duty—of pointing out how the evidence varies in regard to the different prisoners. Now, the Amendment, I agree, is limited in its terms and seems most inadequate—I will not go so far as to call it a ridiculous Amendment—but it will, at all events, secure that in every criminal case hereafter, if the prisoner, and only the pri- 668 soner, is called for the defence, the law officers should have no special right to distinguish that case from other cases. Although it does not go, and cannot go, as far as I should most earnestly like to see it go. I cannot refuse to support it because it only goes a little way in the right direction. I may say that, so strong has my opinion been with regard to this right of reply, during the six years that I had the honour of being a law officer, and the prosecutor in certain criminal cases, I invariably followed the ordinary rule, and declined to avail myself of what I considered was an odious privilege. I sincerely trust that the words which my honourable and learned Friend has introduced this evening may limit in future the practice of claiming the right of reply, even if we are not able to do away with the right itself. It is said that topics may be introduced in the defence which ought to be dealt with upon the responsibility of the law officers of the Crown only. I think I know the cases to which this reference is made—namely, those in which, in times of great trouble, excitement, and tumult, there may be very strong appeals made on behalf of the defence. I do not, however, see any rear son connected with that class of case which ought to entitle a law officer of the Crown to exercise a privilege of this kind. I cannot but hope that, notwithstanding the position that my honourable and learned Friend has taken, and notwithstanding that the Amendment is but a small instalment of a reform, that the House will accept it, and, so far as the limits of the Bill will allow, will carry out a real and important reform.
§ MR. S. EVANS (Glamorgan, Mid)I rise to support the Amendment. After the conclusive reasons which have been given by the honourable and learned Member for Plymouth, it will not be necessary for me to detain the House long in urging other reasons why the Amendment should be accepted. It is difficult to see why the rule was first introduced which gave the privilege, because, as is well known, the Crown is the nominal prosecutor in all criminal cases in this country, and therefore the privilege is merely a personal privilege given to the Attorney and the Solicitor 669 General. The position taken against the Amendment seems to me to be entirely illogical. The Attorney or the Solicitor General will appear in a case at the Central Criminal Court, but it very seldom happens that the Attorney or Solicitor General appear to prosecute on circuit, where a case of exactly the same character as that tried at the Old Bailey may be under consideration. It may happen at the Central Criminal Court that before the reply for the Crown is reached, the Attorney General is sent for by the House of Lords, or by this House. The prosecuting solicitor would then have the responsibility entrusted to him, in the absence of the Attorney General, of making that reply. Well, Sir, can anything be more reasonable than the Amendment of my honourable Friend? The Attorney General said there may be cases where topics are introduced which ought to be brushed aside by the law officers of the Crown. The obvious report to that is that if there are cases of that kind they are cases which may occur in any prosecution. Then the Attorney General goes on further to say that for the advantage of the prisoner it may be necessary for the Attorney General to deal with, these matters in his reply. The fact of the matter is that by reason, in a great measure, of the great personality of the law officer of the Crown, who is prosecutor, great weight is already thrown in against the prisoner, and I for one hold that the art of advocacy ought not be used against the prisoner at all. We have in a portion of this country a state of things where the law proposed is much more logical and on a much more scientific basis than it is in this country. In Scotland the prisoner's advocate has the right of reply in every case. I should very much like to see that phase of the law applied to the practice of criminal matters in this country, and I am not going to refuse to support the Amendment of my honourable friend because it is not the custom. Like the honourable and learned Member for Plymouth, I accept this as an instalment, and as an instalment only, in the right direction, and I hope that the virtue that lies in the Amendment, and the force which lies in the arguments in support of it, will sufficiently commend themselves to the House of Commons to ensure the acceptance of the Amendment.
§ MR. ABEL THOMAS (Carmarthen, E.)I am afraid I shall be driven into the same Lobby with the Attorney General on this question, though I desire to dissociate myself entirely from the arguments which he has used in, opposition to the Amendment. I thoroughly agree with my honourable and learned Friend the Member for Plymouth, and with my honourable Friend beside me [Mr. S. Evans], that it is monstrous, that the Attorney General and the Solicitor General, because they happen to be filling those positions, should have the right of summing-up generally after the speech for the defence. But we must look at this Bill from, a business like point of view, and see what the Amendment of my honourable Friend behind me really does. Now, this is what it does. If the Attorney General is prosecutor, and any witness is called for the defence, the Attorney General will have the right to reply. If the Attorney General is prosecutor, and the prisoner only is called, the Attorney General will not have the right of reply. If the Attorney General is prosecutor, and the prisoner and somebody else is called, the Attorney General will have the right to reply. Now really it does seem to me that under these circumstances it is rather farcical that we should vote in favour of this Amendment. The way in which it is proposed to alter the law will not really add to the symmetry of a Measure which ought to be passed in this House, and, under the circumstances, I am afraid, much against my will, I shall have to vote with the Government on this Amendment.
§ SIR R. REID (Dumfries Burghs)I am going to say but very few words in reference to this Amendment. In the first place, what is the practice at present? It is, as the Attorney General has said, based upon the very recent decision of the judges that no one shall have the right of reply except the Attorney General himself or the Solicitor General who appears for the Attorney General. Now, I, for my part, do not believe that this right of reply has been abused at any time. My honourable Friend the Member for Plymouth has stated that he knows a case. Well, I have never heard anyone speak of such, a case. My own opinion is that it there is any real feeling against the 671 practice it is not worth while to maintain it. I believe that in matters of justice privilege is entirely out of place, but I think that this privilege is merely intended to enhance the dignity of the law officers of the Crown. I do not believe that the privilege will in any sense of the word lead to the oppression of a prisoner, but if there is a widespread feeling of that kind I think it would be desirable to yield to it at once and gracefully; but I cannot support the fragmentary and partial reform which the mover of the Amendment proposes, because it would, if carried, create an extremely anomalous and almost ludicrous state of things. It would be, at all events, an extraordinary anomaly that the right of reply should exist in one class of case and not in another, and I do not think you ought to stud your Statute Book with anomalies of that description.
§ MR. EADCLIFFE COOKE (Hereford)Mr. Speaker, I hope that after the expression of opinion from both sides of the House the Government will give way on this point and accept the Amendment of the honourable Gentleman opposite. Of course, it is not what we wanted to have done, but it is a step in the right direction; and although it is a very trifling matter, what will be the effect? It will practically put a stop to this practice altogether, for if this amendment is passed no Attorney General or Solicitor General hereafter will ever exercise the privilege. Now what was the argument to be found in the speech of the Attorney General himself. In effect his argument was that, the privilege was advantageous to the prisoner, because one or two distinguished counsel would be able to put certain points on his behalf better than other distinguished counsel. There are many men practising at the criminal bar—and I say it with all respect in the presence of the Attorney and Solicitor General—who are quite their equals in regard to criminal practice, and if in certain cases it is an advantage to the prisoner that this privilege should exist, there are many other cases in which other prosecuting counsel ought to have this privilege. It has been urged that in summing up, the law officers, in exercising that privilege, can clear up the 672 points which are likely to be injurious to one or other of the prisoners. But there is a very important functionary who follows counsel, whose duty it is, as the honourable and learned Member for Plymouth very forcibly pointed out, to clear up those very points. Under these circumstances, I hope that after the most impressive speech of the honourable and learned Member, and the opinions expressed on both sides of the House, that you will give way on this point.
§ MR. LABOUCHERE (Northampton)My honourable and learned Friend contends that the Amendment does not well fit in with this Bill, and that it ought to be put in some other Bill. I, Sir, perfectly admit that, but if this amendment were passed, or a small Bill were to be introduced doing away with the privilege on the part of the Attorney General, you would have the Attorney General or the Solicitor General recognising that expression of opinion on the part of the House, and no Attorney General or Solicitor General would venture to claim this privilege. Sir, I speak with great deference, as a layman, in the presence of so many lawyers; but it does seem to me that the arguments in favour of this principle, by so able an advocate as the Attorney General, cannot possibly convince any human being. I can understand perfectly well that the advocates defending the prisoner should have the last words, and I can understand that you should, to a certain extent, lay down that the law officers of the Crown shall have this privilege, and that if they do not present them that their locum tenens should have the privilege. But to say that only the Attorney General or only the Solicitor General should enjoy this privilege seems to me a palpable absurdity. Whatever may be the opinion of lawyers, laymen in the country are of one mind upon this subject; and, after all, they ought to have some consideration in the matter. It is all very well for lawyers. They may get large fees for the prosecution, but we laymen may be the persons prosecuted, and, therefore, we have a decided grievance in this matter. I appeal to the Government to allow the question to be decided, not as a party question, but according to the common sense of each individual.
MR. GIBSON BOWLES (Lynn Regis)I would press the Government to give way on this matter. I really think the Attorney General himself is sensible of the weakness of his own argument. He has spoken of this privilege as an advantage to the prisoner; and he positively seriously argued that it was to the prisoner's advantage to have another speech made against him besides the one already made. Sir, it seems to me to reduce the argument to almost an absurdity. By the hypothesis of the case, the Attorney General and Solicitor General are men of exceptional ability in their profession. They are what they are because they have shown exceptional ability, and consequently of all men, of all prosecuting counsel, they are those who least require the exceptional advantage or privilege of making a second speech. I am loth to interfere in this matter, because I feel it is largely a professional matter, but I cannot conceive why the Attorney General claims this altogether out-of-date privilege. I agree with the view of the honourable Member, who has put his case so strongly, that this is a case of exceptional privilege with no advantage to the prisoner, of small profit or advantage to the law officers themselves, and one which the Government would do well to carefully consider.
§ MR. LAWSON WALTON (Leeds, S.)While I accept the view of the honourable Member for King's Lynn and the honourable Member for Northampton, I would suggest to the House that you are, by adopting this Amendment, creating an anomaly almost as glaring as the one you seek to abolish. It is true that the number of cases which will be affected will be small, but they may be of enormous importance, exciting the attention of all classes of the community, and probably raising State issues of the gravest moment. The Attorney General and the Solicitor General do not undertake ordinary prosecutions. They generally appear—they always appear—in cases of great moment, and therefore it will be only in those cases in which public interest is excited that the consideration and discussion of this question will arise. On a future occasion the question may arise whether a prisoner ought to be called or not. Now, the con- 674 sideration of the question ought to depend on the value of the testimony to the accused, and whether it will operate in his favour. Well, if this Amendment is carried, counsel will have to put into the other scale the question of whether or not the reply which will be afforded the Attorney General will outweigh the advantage he may get by putting the prisoner into the box, and thus an anomaly will be introduced quite as startling in its character as that which it is sought to abolish.
§ MR. ATHERLEY JONES (Durham, N.W.)I cannot help thinking that there is really no effective argument to guide us to a conclusion. The Attorney General has spoken in favour of maintaining this privilege. The ex-Solicitor General is strongly opposed to it. The ex-Attorney General on our side of the House seems to have no very strong opinion either one way or the other, and lather invites the Government to allow the Amendment to be accepted. At present the Solicitor General maintains a discreet silence in the matter, and under these circumstances I am entitled to ask the House to vote independently of the authority of the Government. As regards the argument which, fell from my honourable Friend the Member for Leeds, that is not an argument which commends itself to lawyers. He tells us that it would create another anomaly. As a matter of fact, law and lawyers rejoice in anomalies, and I do not suppose very much beneficial legislation would be passed in this country if the argument of anomalies were raised. Scarcely, as a matter of fact, is there ever a Measure passed which does not more or less contain some accepted anomaly in the Legislature. But what I do venture to urge on the Government is this, and it really is as sound an argument as can be advanced in furtherance of the maintenance of the present system. I gather from the Attorney General that this is the solemn duty of the Crown. But supposing the Attorney-General were retained, as he might be, in a private prosecution—in the prosecutions by the Crown many of them are instituted by private individuals—
§ SIR R. WEBSTERNo, no!
§ MR. ATHERLEY-JONESIf he were retained, he could still be the law officer of the Crown, and exercise this function.
§ SIR R. WEBSTERNo, no!
§ MR. ATHERLEY-JONESMy honourable Friend says, "No, no!" but I have a distinct recollection of the Solicitor General being retained in a private prosecution, although I agree that this practice does not exist at the present time. Now, Sir, the Attorney General says that he is exercising judicial functions, or quasi-judicial functions, and if he does that for the benefit of the prisoner, surely those functions ought to be exercised by every counsel who appears for the prosecution for the Crown. There is are reason why the Attorney General should enjoy this absolute privilege, which is denied to other members of the Bar who may be instructed to appear on behalf of the Crown. There has really been no effective argument advanced against this, and, although it will be extremely limited in its scope, its moral effect upon the Attorney General would be most advantageous, because it would be felt that it would restrain him from exercising that function, which has met with the condemnation of the House. For these reasons I beg leave to support the Amendment.
§ SIR ELLIOTT LEES (Birkenhead)With regard to this principle I confess that, if we do away with the Attorney General in respect to this particular question, probably that privilege will be done away with in all cases. I think there is one point which laymen, at any rate, ought to consider in this House, and it is that it is most desirable that some sympathy should be shown by the public at large towards the verdict of the courts, and that there should be no popular feeling aroused afterwards that the prisoner has not been treated with absolute fair play. I hope upon this question that the Government will yield to the desire which has been expressed in all parts of the House, and consent to accept this Amendment.
§ MR. SWIFT MACNEILLIf I understand this Amendment aright, I shall vote for it. As I understand the proposal, it is that in cases that specially 676 come under this Bill now before the House the Amendment proposes to take away from the Attorney General, and the Solicitor General, and other law officers of the Crown, the right to reply which they have in general criminal cases whether evidence is called for the defence or not. Is that so? ["No, no!"]
§ MR. PICKERSGILLYes!
§ MR. SWIFT MACNEILLI understand from the author of the Amendment that that is the scone of it. I wish, first of all, to direct the attention of the House to the rule in present cases which we wish to maintain in this case. Upon this rule, or this practice, I told the Attorney General a little piece of historical knowledge that he did not know. I asked the honourable and learned Gentleman whether he knew that this rule is a rule which had its origin in the corrupt time of Scroggs and Jefferies. It is legislation of this kind which curtails the right of a prisoner, and deprives him of a proper chance of making his defence, and undoubtedly exceptional rights should not be given to the officers of the Crown to urge that prosecution against him. Let us see how the rule at present stands. In many cases there are, as we all know, public prosecutions in which Crown counsel and representatives of the Attorney General appear, and they are not to be allowed to exercise this privilege, and the Attorney General and the Solicitor General alone are allowed to exercise it. In Ireland this privilege is different. There are no private prosecutions in Ireland, for they are instituted by the Attorney General, and every man who represents him is entitled to the right of reply. I was not able to be here during the former part of the Debate, but I ask, Mr. Speaker, whether any reference was made to a most remarkable article written by the late Mr. Cock. My argument, Sir, is this: that if the right to reply is bad in general cases, as it was believed by the legal profession to be bad, it is infinitely worse in exceptional cases of this kind. I will not trouble the House with more than two or three lines of quotations. This article is a vast monument of learning, showing the opinions of the judges. Some honour- 677 able and learned Gentlemen have endeavoured to give the Government some little stability by saying that the Bar does not object to it. Only a fortnight ago I saw in a journal which is the leading exponent of the Bar of England a sub-leader stating that it was the unanimous opinion of the Bar of England that this right of reply should be curtailed. If the right of reply is bad in a general way, it is infinitely worse in a particular case of this kind. I never smile at the Attorney General, because I do not think it would be a respectful thing to do, but I confess that his sense of humour very nearly overcame me when I heard the right honourable Gentleman defending this right to reply as a matter of responsibility of the Crown counsel. It is an odious right, and an odious privilege, which cannot be supported by a tittle of justice or equity. Now let me show the opinions of the judges in reference to the general right of reply. In a well-known case in 1858 the Attorney General endeavoured to exercise this right of reply, and the judge replied—
I cannot deny your claim, but the right is a very objectionable one. I shall limit it whenever possible, and I wish I could prevent the Attorney General from exercising it.Now, that is what we are endeavouring to do by this Amendment. In the same year Mr. Justice Byles said he was of opinion that the right ought to be limited to the Attorney General and the prosecuting counsel, and he also stated that if he could he would not allow it even in those cases. Most of the judges are against the exercise of this right, and there is scarcely a law officer who has not expressed himself in absolute repugnance to this right; and, I am sure, rightly, in the interests of justice and equity. Now, this Amendment will fulfil what the right honourable Gentleman would like it to fulfil, and it will keep it from falling into temptation, so far as the Bill is concerned, and he will not have the right, if this Amendment is carried, to exercise this anomalous privilege, which is not compatible with general interests, and which cannot be supported by a tittle of justice or equity. I hope the Government will not make this a party question, and I trust the House will be allowed to decide conscientiously.
§ *MR. STUART WORTLEY (Sheffield, Hallam)This Amendment is supported largely, if not mainly, by honourable Gentlemen who object to the Bill altogether. I should like, however, to point out that the cases in which the law officers of the Crown are employed are always cases of exceptional gravity, and are, therefore, cases in which it is necessary to have the highest legal ability for the prosecution. In these cases the prisoner, who, all the opponents of the Bill are saying, will be forced into the box contrary to public policy, will have an added motive for going into the box and submitting himself to cross-examination, because he will not otherwise be able to shut out the Attorney-General's right of reply.
§ *MR. HEDDERWICK (Wick Boroughs)It is said that if this Amendment be carried, one effect would be the creation of an anomaly in our criminal law. This, is no doubt true; but the anomaly would; be of a much more trifling character than appears to be supposed. In the first place, the cases in which the law officers of the Crown are employed are very few in number; and in the next place, if, as has been said, the general effect of the Bill will be to force nearly every prisoner into the witness-box, there the chance of the anomaly becoming operative in practice will be reduced to nothing at all. Then it is said by the honourable and learned Member for South. Leeds that it would be dangerous to introduce this Amendment, for several reasons, but chiefly because the oases in which the law officers of the Crown are engaged are oases of great gravity. Bus I have always understood that the reason why ordinary barristers who appear for the prosecution have to refrain from replying where no evidence for the defence has been given is due to the tenderness of our law towards prisoners, who are upon their trial. Well, if it be proper that, in ordinary cases, a barrister who appears for the prosecution should be deprived of the right of final reply, surely in cases which are said to be of great gravity, and in which the Attorney General and the Solicitor-General—who are usually men of the greatest weight at the Bar, and therefore carry with them enormous influence—appear, it cannot also be proper that they 679 should have the right which is withheld from other barristers in oases of lest magnitude! I shall vote for the Amendment, because I believe the anomaly which it will create will be of little magnitude, and will only take the place of another anomaly already existing, because the anomaly which it will introduce will at least be an anomaly in the right direction; and, further, because I believe, if the Amendment be carried, no Attorney General or Solicitor General of common sense, being deprived of the right of reply where the prisoner has actually gone into the witness-box, would for a moment think of claiming or exercising such a right where no evidence has been offered by a prisoner.
§ THE SOLICITOR GENERAL (Sir R. FINLAY,) Inverness BurghsI think it is a great mistake to regard this right of reply as a personal privilege. It is not a personal privilege; it is a matter which, under certain circumstances, must be regarded as a grave and serious public duty. With regard to the observations of my honourable and learned Friend the Member for Plymouth I desire to make only this remark. I do not think the honourable Member's observations had substantial ground. I think it ought to be apparent that this question comes up for consideration as a whole, and that there is another side to it than that put forward by the honourable Member for Plymouth. There are cases of great public importance in which naturally and properly the counsel for the defence seek to introduce every topic which they think may possibly influence the mind of the jury to a verdict of acquittal. There are some cases in which, in the interest of the public, it is right and desirable that the attention of the jury should be recalled to the real state of the facts, and to what are the true issues upon which they must decide. It may be said in that case, "Why should not the privilege be extended to all prosecuting counsel?" The answer is that the privilege is one which is certainly capable of very great abuse. I have never heard it suggested that the privilege has been abused by any prosecuting counsel; I do not for one moment suggest that those who happen to fill the position of law officers are in any way superior to their brethren at the Bar, but 680 I think the consideration I have mentioned has some weight. The duty, in certain cases, of replying in this way is one that ought to be exercised with a very full sense of responsibility. The law officers do not prosecute in ordinary cases, but only in exceptional cases, in the fullest blaze of publicity, and with a sense of direct responsibility to Parliament. If there were any symptoms of abuse of this right of reply, it most certainly would be heard of in this House before many days were over. For that reason, and for that alone, I repeat that sufficient attention was not given in the speech of the honourable and learned Member for Plymouth to the fact that the right may be one of public importance, while there may be grave reasons for confining its exercise to those cases in which there is an adequate amount of responsibility, and where also there is the blaze of publicity, so that the possibility of abuse may be avoided. But I wish to recall the attention of the House to the question now before them. My honourable Friend sitting behind me said that the forms of the House would not allow him and his friends to move a certain Amendment, adding something to this effect—"As we cannot do that, let us do this." I would remind my honourable Friend that that is no reason for doing something else which is, in itself, absolutely absurd. Can anything be more utterly preposterous than to say that in two cases, tried one after the other, in the first of which the defence calls the accused as a witness, the Attorney General shall not have the right of reply; but in the second, in which no evidence is called for the defence, the Attorney General shall have the right of reply! The point of absurdity could no further go. If honourable Members would take the trouble to read the Amendment and consider what effect it will have upon the Bill I am certain they will not vote for it.
§ MR. ASQUITH (Fife, E.)I desire to say in a sentence that I shall support the Amendment, but I am speaking for myself, and for myself alone. No one could have listened to this Debate without coming to the conclusion—I say so with all respect to the honourable and learned Attorney General—that there is really nothing in the world to be said in favour 681 of his contention, that this right of reply should be retained, whether the Attorney General is present or not in criminal prosecutions, counsel are equally able to present to the jury delusive observations and topics, and there is always in reserve the person who has the last word, and whose constitutional duty it is to see that topics of that kind have not undue weight with the jury—I mean Her Majesty's judge. But the only solid argument which was relied upon in the course of the discussion against the Amendment was that it will introduce an anomaly But the Bill itself introduces an anomaly for it enables you to get a witness for the defence without letting him have a right of reply. If there is in this Bill a statutory prohibition to the Attorney General exercising his right of reply in the very cases where the existence of that
§ right can most plausibly be justified, no law officer would venture, in the face of that statutory indication of the opinion of Parliament, to claim the right in other cases. For these reasons I shall give my vote for the Amendment.
§
Amendment proposed to the proposed clause, at the end thereof, to add the words—
And the above rule shall apply to cases in which the Attorney General or Solicitor General, or any person acting as the representative of either, shall appear on behalf of the Crown."—(Mr. Pickersgill.)
§
Question put—
That those words be there added.
§ The House divided:—Ayes 94; Noes 158.—(Division List No. 235.)
683| AYES. | ||
| Abraham, W. (Cork, N.E.) | Graham, Henry Robert | Palmer, Sir Charles M. |
| Allan, William (Gateshead) | Harwood, George | Paulton, James Mellor |
| Allen, W. (Newc.-under-Lyme) | Hayne, Rt. Hon. C. Seale- | Pease, Alfred E. (Cleveland) |
| Asher, Alexander | Hedderwick, T. C. H. | Powell, Sir Francis Sharp |
| Asquith, Rt. Hon. H. H. | Hemphill, Rt. Hon. C. H. | Price, Robert John |
| Balfour, Rt. Hon. J. B. (Clackm.) | Hogan, James Francis | Richards, Henry Charles |
| Beaumont, Wentworth C. B. | Holden, Sir Angus | Robertson, E. (Dundee) |
| Birrell, Augustine | Howell, William Tudor | Robson, William Snowdon |
| Bowles, T. G. (King's Lynn) | Jameson, Major J. Eustace | Samuel, J. (Stockton-on-Tees) |
| Brigg, John | Jones, W. (Carnarvonshire) | Schwann, Charles E. |
| Brunner, Sir John Tomlinson | Kearley, Hudson E. | Sidebotham, J. W. (Cheshire) |
| Caldwell, James | Labouchere, Henry | Sinclair, Capt. J. (Forfarsh.) |
| Cawley, Frederick | Lawson, Sir W. (Cumberland) | Spicer, Albert |
| Channing, Francis Allston | Lees, Sir Elliott (Birkenhead) | Steadman, William Charles |
| Clark, Dr.G.B. (Caithness-sh.) | Leuty, Thomas Richmond | Stevenson, Francis S. |
| Cooke, C. W. R. (Hereford) | Lloyd-George, David | Sullivan, Donal (Westmeath) |
| Courtney, Rt. Hon. L. H. | Lough, Thomas | Tanner, Charles Kearns |
| Cozens-Hardy, Herbert Hardy | Luttrell, Hugh Fownes | Thomas, A. (Glamorgan, E.) |
| Combie, John William | Macaleese, Daniel | Wallace, Robert (Edinburgh) |
| Curran, Thomas (Sligo, S.) | MacNeill, John Gordon Swift | Whittaker, Thomas Palmer |
| Daly, James | McArthur, W. (Cornwall) | Williams, John C. (Notts) |
| Dalziel, James Henry | McCartan, Michael | Wills, Sir William Henry |
| Davies, M. Vaughan- (Cardigan) | McDermott, Patrick | Wilson, John (Govan) |
| Donelan, Captain A. | M'Hugh, E. (Armagh, S.) | Wilson, J. H. (Middlesbro') |
| Donkin, Richard Sim | McLaren, Charles Benjamin | Woodall, William |
| Doogan, P. C. | Maddison, Fred. | Woodhouse,SirJT(Hudd'rsf'ld) |
| Drucker, A. | Maden, John Henry | Woods, Samuel |
| Duncombe, Hon. Hubert V. | Molloy, Bernard Charles | Yoxall, James Henry |
| Dunn, Sir William | Monk, Charles James | |
| Evans, S. T. (Glamorgan) | Montagu, Hon. J. S. (Hants) | TELLERS FOR THE AYES— |
| Farquharson, Dr. Robert | Norton, Capt. C. W. | Mr. Pickersgill and Sir |
| Fowler, Rt. Hon. Sir Henry | O'Connor, A. (Donegal) | Edward Clarke. |
| Gladstone, Rt. Hon. H. J. | Oldroyd, Mark | |
| NOES. | ||
| Aird, John | Barnes, Frederic Gorell | Brodrick, Rt. Hon. St. John |
| Arnold, Alfred | Barry,RtHnAHSmith-(Hunts) | Bucknill, Thomas Townsend |
| Arrol, Sir William | Barton, Dunbar Plunket | Bullard, Sir Harry |
| Atkinson, Rt. Hon. John | Bathurst, Hon. A. Benjamin | Butcher, John George |
| Bailey, James (Walworth) | Beach,Rt.Hn.SirM,H.(Brist'l) | Cavendish, R. F. (N. Lancs) |
| Baird, John George Alexander | Beach, W. W. B. (Hants) | Cavendish, V.C.W. (Derbysh.) |
| Balcarres, Lord | Bhownaggree, Sir M. M. | Cecil, Evelyn (Hertford, E.) |
| Balfour, Rt.Hon.A. J.(Manc'r) | Blundell, Colonel Henry | Chamberlain,Rt. Hon. J. (Birm.) |
| Balfour, Rt.Hon.G.W. (Leeds) | Boulnois, Edmund | Chamberlain, J. A. (Worc'r) |
| Chaplin, Rt. Hon. Henry | Hill, Sir Edward S. (Bristol) | Renshaw, Charles Bine |
| Charrington, Spencer | Hoare, Samuel (Norwich) | Richardson, Sir T. (Hartlep'l) |
| Clare, Octavius Leigh | Howard, Joseph | Ridley, Rt. Hon. Sir M. W. |
| Coghill, Douglas Harry | Hutchinson, Capt.G.W. Grice- | Robertson, H. (Hackney) |
| Cohen, Benjamin Louis | Jebb, Richard Claverhouse | Roche, Hon. J. (E. Kerry) |
| Collings Rt. Hon. Jesse | Johnston, William (Belfast) | Royds, Clement Molyneux |
| Colomb, Sir J. C. Ready | Kemp, George | Russell, T. W. (Tyrone) |
| Cook, F. Lucas (Lambeth) | Kenrick, William | Rutherford, John |
| Cornwallis, F. S. W. | Kenyon-Slaney, Col. William | Ryder, John Herbert Dudley |
| Cox, Robert | King, Sir Henry Seymour | Samuel, H. S. (Limehouse) |
| Cranborne, Viscount | Knowles, Lees | Scott, Sir S. (Marylebone, W.) |
| Cripps, Charles Alfred | Lafone, Alfred | Sharpe, William Edward T. |
| Cross, Alexander (Glasgow) | Laurie, Lt.-General | Sidebottom, W. (Derbyshire) |
| Cubitt, Hon. Henry | Lawrence, SirEDurning-(Corn.) | Simeon, Sir Barrington |
| Curzon,RtHnG.N.(Lancs,SW) | Lawrence, W. F. (Liverpool) | Smith, James P. (Lanark) |
| Curzon, Viscount (Bucks) | Lawson, John Grant (Yorks) | Spencer, Ernest |
| Dalkeith, Earl of | Legh, Hon. T. W. (Lancs) | Stanley, Lord (Lancs) |
| Dickson-Poynder, Sir J. P. | Llewellyn, E. H. (Somerset) | Stewart, Sir M. J. McTaggart |
| Dixon-Hartland, Sir F. Dixon | Llewelyn,SirDillwyn-(Sw'ns'a) | Stock, James Henry |
| Douglas, Rt. Hon. A. Akers- | Loder, G. W. E. | Strauss, Arthur |
| Fellowes, Hon. A. Edward | Long, Col. C. W. (Evesham) | Sutherland, Sir Thomas |
| Fergusson, Rt.Hn. Sir J (Manc.) | Long, Rt. Hon. W. (Liverp'l) | Thomas, A. (Carmarthen, E.) |
| Finlay, Sir R. Bannatyne | Lowe, Francis William | Thorburn, Walter |
| Fisher, William Hayes | Lowles, John | Thornton, Percy M. |
| FitzGerald, Sir R. Penrose- | Lucas-Shadwell, William | Tomlinson, W. E. Murray |
| Flower, Ernest | Macartney, W. G. Ellison | Tritton, Charles Ernest |
| Forwood, Rt. Hon. Sir A. B. | Maclure, Sir John William | Valentia, Viscount |
| Fry, Lewis | McArthur, C. (Liverpool) | Vincent, Col. Sir C. E. H. |
| Garfit, William | McKillop, James | Walton, John L. (Leeds, S.) |
| Gedge, Sydney | Malcolm, Ian | Ward, Hon. R. A. (Crewe) |
| Gibbons, J. Lloyd | Milbank, Sir P. C. J. | Warde, Lt.-Col. C. E. (Kent) |
| Giles, Charles Tyrrell | Mildmay, Francis Bingham | Webster, R. G. (St. Pancras) |
| Godson, Sir Augustus Fred. | Moon, Edward Robert Pacy | Webster, Sir R. E. (I. of W.) |
| Gordon, Hon. John Edward | Morgan, Hn. F. (Monm'thsh.) | Wentworth, Bruce C. Vernon- |
| Gorst, Rt. Hon. Sir J. E. | Morrell, George Herbert | Whitmore, Charles Algernon |
| Goschen, George J. (Sussex) | Morton, A. H. A. (Deptford) | Williams, Col. R. (Dorset) |
| Gray, Ernest (West Ham) | Muntz, Philip A. | Williams, J. Powell (Birm.) |
| Gull, Sir Cameron | Murray, Rt. Hon A. G. (Bute) | Wilson-Todd, W. H. (Yorks) |
| Hall, Sir Charles | Myers, William Henry | Wortley, Rt. Hon. C. B. S. |
| Hamilton, Rt. Hon. Lord G. | Nicol, Donald Ninian | Wyndham, George |
| Hanbury, Rt. Hon. R. W. | Parkes, Ebenezer | Wyndham-Quin, Maj. W. H. |
| Hardy, Laurence | Phillpotts Captain Arthur | |
| Haslett, Sir James Horner | Pollock, Harry Frederick | TELLERS FOR THE NOES— |
| Helder, Augustus | Rasch, Major Frederic Carne | Sir William Walrond and |
| Henderson, Alexander | Reid, Sir Robert T. | Mr. Anstruther. |
§
Amendment proposed—
This Act shall remain in force until the thirty-first day of December, one thousand nine hundred and one and no longer, unless continued by Parliament.—(Mr. Pickersgill.)
§ MR. PICKERSGILLSir, in moving this clause as to limiting the duration of the Act, I would just like to say that I moved a similar Amendment In Committee; but the learned Attorney General really gave no reply at all on that occasion, and was content simply to walk down into the division lobby. I am, therefore, fully justified in giving the Attorney General another opportunity of moving an Amendment, as to whether he approves or disapproves of it. I think this matter is entitled to candid consideration. I raise the matter again, because the Government has in every case shown a disposition to limit the duration of the 684 Act. Only yesterday the Government, applied a limiting clause to the Vaccination Bill; and I think the reasons which may be advanced in favour of this clause are equally strong. Now, Sir, I am not proposing anything very novel or unusual in asking the House to impose a limit of time to this Bill. The House has constantly imposed such a limit. Some of the best known Acts of Parliament were originally introduced as measures to operate for a limited time. For instance, we had the Corrupt Practices Act, the Ballot Act, the Employers' Liability Act, the Promissory Notes Act, and the Prosecution Expenses Act of 1866. Therefore, I say, it is a constant expedient adopted by this House to limit the duration of the life of a Bill on suitable occasions. Now, what is the character of the Act to which the House proposes to apply a limited clause? 685 I think it will be found that in all cases such a limit has been applied where a Bill has been regarded with alarm by a considerable minority, and where it constitutes a grave departure from established practice. In such instances it is an argument in favour of imposing a limit of time. Well, these considerations apply to the Bill which is now before the House. No doubt, in one sense, it might be said that the practice which this Bill is proposed to sanction is no novelty, because I fancy the right honourable Gentleman scarcely comprehends the argument I am going to employ. Formerly the practice of questioning prisoners was very prevalent in this country. If honourable members will refer to the earlier volumes of the State trials they will see what a tremendous and what a cruel instrument of power questioning a prisoner was with a view to entrap and convict one who might be a bad character, who might be a mischievous citizen, who might be dangerous to society, but who was not guilty of the charge there and then laid against him. As far as modern times are concerned this Bill does constitute an enormous departure from the established practice, and what I ask is that a certain period shall be allowed during which the legal profession may watch the operation of this Bill, and at the end of a year may have an opportunity either of contriving the practice or of repealing it. It has been said by the right honourable Gentleman—or, at all events, by some of his supporters—that it is unnecessary in this case to allow such an experimental period because we have had experience of the Criminal Law Amendment Act. That is quite true; but what I submit to the House is that the experience of the Criminal Law Amendment Act, whatever the result of that experience may be, constitutes no real criterion of what the result may be in this case. Under these circumstances, having regard to the fact, which must be borne to the mind of the Attorney General, that a large percentage of both professional and public opinion is opposed to this Measure, and that grave apprehension is entertained as to its results, and also having regard to the growing body of the judicial bench opposed to the Bill, I think my Amendment is a reasonable one. I am only 686 seeking to apply to this Bill what the Government themselves have applied to other Bills during the present Session. However, I would ask permission to amend the clause slightly, and to make it read—
This Act shall remain in force until the 31st day of December, 1903, and no longer, unless continued by Parliament,so as to make this Bill continue for five years, so as to bring it into line with the analogous case of the Vaccination Bill. I beg to move the clause.
§ SIR R. WEBSTERWhatever the state of public opinion may be on the point, it cannot be denied that this practice has been tried for more than 20 years. As far as I know there is no Act in which it has ever been suggested that the provision as to a prisoner giving; evidence in his own behalf should be repealed. Whether the Government be right, or whether they be wrong, the opinion really, for the moment, of the majority of the House is in favour of this Bill. I do not wish to go into the question of outside opinion, but I receive constant communications from judges of the High Court, recorders, and county court judges, strongly recommending this Bill. I am sure, at the trials at the last assizes in the Old Bailey one case in particular was noticed—that of a man charged with performing an illegal operation. All I can say is that there never was a more striking case to illustrate the necessity for this Bill. Assuming that man's innocence for the moment, he was prevented from giving evidence on his own behalf, owing to the present state of the law, and was thus debarred from giving his statement in opposition to the medical evidence produced by the Crown. I think the House will agree with me that the suggested limitation should not be inserted.
§ MR. S. EVANS (Glamorgan)Mr. Speaker, this is a matter of principle, and I am bound to say that I think the Government might well have accepted the suggestion of my honourable Friend, because what would be the effect of it? That if the experiment was found to be inexpedient, then it could at the end of five years be dropped without coming to 687 Parliament to have the Act repealed; whereas if the Act works harmoniously it could be continued. The experiment is a serious one to try, and that would be a sufficient reason for accepting the Amendment of my honourable Friend. Those who have experience in criminal law are evenly divided on this question.
§ MR. EVANSAn honourable Member says "No," but honourable Members of this House who are members of the legal profession are almost evenly divided, and it is now admitted that the judges on the bench are almost evenly divided.
§ SIR R. WEBSTERNo, no.
§ MR. EVANSWe have seen that judges have made observations on this very Bill, which are not at all complimentary. Reference has been made to other Acts of Parliament, but that is not an argument against the Amendment. Is it fair to draw conclusions from any of these Acts. The character of these Acts are entirely different from a criminal Act; therefore, in cases where the lives and liberties of people are at stake, I think I am entitled to urge my honourable Friend to go to a Division, and if he does I will go into the Division Lobby with him.
§ *MR. SERJEANT HEMPHILL (Tyrone, N.)I shall only say a very few words upon this point because the Act does not relate to Ireland, and consequently it may not be thought desirable that I should occupy the attention of the House by discussing it at any great length. I do hope that the right honourable Gentleman will accept the Amendment now before the House, because, as all lawyers will readily admit, we are now attempting the very greatest experiment that has ever been tried in our criminal law. I at once meet my honourable and learned Friend with reference to his statement that for 25 years this power of examining the accused existed in certain Acts of Parliament, and that no attempt has been made to repeal those Acts. The right honourable and learned Gentleman who has just spoken has pointed out that with the exception of the Criminal 688 Law Amendment Act, which has reference to offences against morality and sexual offences, all the other Acts deal with what are, if I may make use of the term, statutory crimes: they deal with statutory crimes not necessarily involving in themselves moral turpitude, and are not crimes either against the law of nature or the divine law. Very probably there were proper reasons for that, for in these Acts, with the exception of the Criminal Law Amendment Act, all the offences savour more or less of the nature of civil offences. I am assuming that this Bill is a good Bill, and I am assuming that it will work well. At the same time I say it is a great experiment, that it is reversing the whole of the criminal law which has existed in this country for over two centuries at least. I would go further than that and say from the earliest history of our law, because I do not regard as instances of justice what was done in the Star Chamber, or during a period when English liberties were in suspense. We all know that it was in the course of recent years—in this present century—that in civil actions the interested parties in civil suits were allowed to be heard on their own behalf; the old law was that neither of the persons interested could be heard. I have heard some of the most eminent judicial persons say that the removal of the restriction, and allowing parties directly interested in the subject matter in dispute to be examined in civil actions, had been provocative of the greatest and most wicked perjury in Ireland. Of course I am speaking of Ireland, and that is the opinion I have heard expressed over and over again, and I am not sure that it is true of Ireland alone. We are now going farther, and are going to enact that in every offence at common law, in all actions of larceny and assault, and running up from those to treason and murder and capital offences, we are now introducing this extraordinary innovation that the accused man can be examined upon oath upon his own behalf. The effect of that is to alter the whole current of our administration of criminal justice, and I do not think that where such a change is effected—a change which I admit was advocated some years ago by that great philanthropist and philosopher Jeremy Bentham, but still a change of an experimental character—any Govern- 689 ment ought to venture to introduce such an innovation, and say it should not in the first instance be limited, like the Agricultural Rating Act and the other Acts referred to by the honourable Member for Bethnal Green, for five years. We can judge by that time with some accuracy what the operation of this change will be, and we shall then be able to say whether it has been the means of ensuring the acquittal of the innocent and the conviction of the guilty. When this Act has been in operation for five years, experience will show whether there has been any injustice done by it or not. For my own part the ability of the wife to be examined is above all revolting, because it places the unfortunate woman in this awful dilemma, that she may either be the means of hanging her husband or that she will forswear herself in the hope of getting him out of his peril. That is a frightful temptation in which to place any human being, and a temptation which, upon humane grounds, legal grounds, and philosophic grounds ought not by statute to be put in the way of any human being. The Government, in my opinion, ought to try the Act for five years and then if it is found to work well it will as a matter of course be continued from time to time, under the Expiring Laws Continuance Act, or perpetuated by a special Act of Parliament. We shall then be able to say whether it ought to be extended to Ireland, and in passing I say, as I have said before, the Government stands condemned in not extending the law to Ireland if they think it will act well and if their convictions in this matter are honest.
MR. GIBSON BOWLESI think the Government could hardly accept the Amendment in the terms in which it is proposed, but if the term was extended to five years—.[Cries of "It is."] Is that so? Then in that case I think it would be extremely difficult for the Government to resist it. It is done in the Vaccination Bill, and if there is a reason for it there there is a very much greater reason here. This is a Bill which we certainly are entitled to see in its working and whether it works satisfactorily before it 690 is riveted like fetters upon the people. It is quite true, as we may be told, that it will be possible to repeal it at the end of five years if it was not a success, but I would rather have the presumption the other way and let it repeal itself. The right honourable Gentleman has referred to the number of Acts in which this principle is embodied, but I do not think any one of them exactly embody the principle existing in this Bill. Two of them, for instance, are expressly provided for in the sense of the Amendment, and I think it is only reasonable that it should be provisional and only for a short period. The day before yesterday it would have been more difficult to ask the Government to do this than it is to-day, but since yesterday, when the Government accepted the principle with regard to the Vaccination Bill, it is not so. As I said before I think it is very difficult for the Government to resist this Amendment.
§ *MR. STUART WORTLEYI wish to combat what was said by the right honourable Gentleman opposite [Mr. Hemphill] as to these Acts that have been referred to not dealing with offences involving moral turpitude and offences against the laws of God. That is not so, and I hope that the House will not be led to a decision by any such an argument. Take the Merchandise Marks Act, or the Metalliferous Coal Mines Act, or the Explosive Substances Act. All these Acts are aimed inter alia at offences which may be morally detestable and of great gravity. From what was said by the right honourable Gentleman opposite, one would think that the Irish mind was somewhat unsound upon the question of dynamite and the dynamite offences under the Act of 1893, if he says they do not involve moral turpitude or offences against God. Then there is the Act for the prevention of cruelty to children. I hope this House will not arrive at a decision under any serious misapprehension which might have been caused by the right honourable Gentleman opposite.
§ The House divided:—Ayes 53; Noes 128.—(Division List No. 236.)
691| AYES. | ||
| Abraham, W. (Cork, N.E.) | Hogan, James Francis | Sidebotham, J. W. (Cheshire) |
| Allan, William (Gateshead) | Jameson, Major J. Eustace | Spicer, Albert |
| Allen, W. (Newc.-under-L.) | Kilbride, Denis | Steadman, William Charles |
| Asher, Alexander | Leuty, Thomas Richmond | Stevenson, Francis S. |
| Balfour,Rt.Hn.J.B. (Clackm.) | Lough, Thomas | Sullivan, Donal (Westmeath) |
| Bowles, T. G. (King's Lynn) | Macaleese, Daniel | Tanner, Charles Kearns |
| Brigg, John | MacNeill, John Gordon S. | Thomas, A. (Glamorgan, E.) |
| Caldwell, James | McDermott, Patrick | Wallace, Robert (Edinburgh) |
| Carvill, Patrick G. H. | M'Hugh, E. (Armagh, S.) | Williams, John C. (Notts) |
| Cawley, Frederick | McLaren, Charles Benjamin | Wills, Sir William Henry |
| Crilly, Daniel | Maddison, Fred. | Wilson, H. J. (York, W.R.)> |
| Curran, Thomas (Sligo, S.) | Norton, Captain Cecil W. | Woodall, William |
| Daly, James | O'Brien, P. J. (Tipperary) | Woods, Samuel |
| Dalziel, James Henry | O'Connor, Arthur (Donegal) | Yoxall, James Henry |
| Donelan, Captain A. | Oldroyd, Mark | |
| Doogan, P. C. | Pease, A. E. (Cleveland) | TELLERS FOR THE AYES— |
| Duncombe, Hon. Hubert V. | Richards, Henry Charles | Mr. Pickersgill and Mr. |
| Hayne, Rt. Hon. C. Seale- | Robertson, E. (Dundee) | Samuel Evans. |
| Hedderwick, Thomas C. H. | Robson, William Snowdon | |
| Hemphill, Rt. Hon. C. H. | Samuel, J. (Stockton-on-T.) |
| NOES. | ||
| Aird, John | Finlay, Sir Robert B. | Mellor, Colonel (Lancashire) |
| Arnold, Alfred | Fisher, William Hayes | Mildmay, Francis Bingham |
| Arrol, Sir William | Flower, Ernest | Moon, Edward Robert P. |
| Atkinson, Rt. Hon. John | Forwood, Rt. Hon. Sir A. B. | Morgan, Hon.F. (Monm'thsh.) |
| Bailey, James (Walworth) | Foster, Harry S. (Suffolk) | Morrell, George Herbert |
| Balcarres, Lord | Garfit, William | Morton, A. H. A. (Deptford) |
| Balfour,Rt.Hon.A.J. (Manc'r) | Gedge, Sydney | Murray, Rt. Hn. A. G. (Bute)) |
| Balfour, Rt.Hon.G.W. (Leeds) | Gibbons, J. Lloyd | Nicol, Donald Ninian |
| Barnes, Frederic Gorell | Giles, Charles Tyrrell | Northcote, Hon. Sir H. S. |
| Barton, Dunbar Plunket | Godson, Sir Augustus F. | Parkes, Ebenezer |
| Bathurst, Hon. Allen B. | Gorst, Rt. Hon. Sir John E. | Phillpotts, Captain Arthur |
| Bhownaggree, Sir M. M. | Goschen, George J. (Sussex) | Powell, Sir Francis Snarp |
| Blundell, Colonel Henry | Graham, Henry Robert | Reid, Sir Robert T. |
| Boulnois, Edmund | Gray, Ernest (W. Ham) | Richardson, Sir T. (Hartlep'l) |
| Bowles, Capt. H. F. (Mdsx.) | Hanbury, Rt. Hon. R. W. | Ridley, Rt. Hon. Sir M. W. |
| Brodrick, Rt. Hon. St. John | Hardy, Laurence | Robertson, Herbert (Hackney) |
| Bucknill, Thomas Townsend | Haslett, Sir James Horner | Royds, Clement Molyneux |
| Bullard, Sir Harry | Helder, Augustus | Russell, T. W. (Tyrone) |
| Cavendish,V. C.W. (Derbysh.) | Henderson, Alexander | Ryder, John Herbert D. |
| Chamberlain,Rt.Hn.J. (Birm.) | Hill, Sir E. Stock (Bristol) | Sharpe, William Edward T. |
| Chamberlain, J. A. (Worc'r) | Hoare, Samuel (Norwich) | Sidebottom, W. (Derbyshire) |
| Charrington, Spencer | Howell, William Tudor | Simeon, Sir Barrington |
| Clare, Octavius Leigh | Jebb, Richard Claverhouse | Stanley, Lord (Lancs) |
| Clark, Dr.G.B. (Caithness-sh.) | Johnston, William (Belfast) | Stock, James Henry |
| Clarke, Sir E. (Plymouth) | Jones, W. (Carnarvonshire) | Stone, Sir Benjamin |
| Cochrane, Hon. T. H. A. E. | Kemp, George | Sturt, Hon. Humphry N. |
| Coghill, Douglas Harry | Kenrick, William | Thomas, A. (Carmarthen, E.) |
| Cohen, Benjamin Louis | Kenyon-Slaney, Colonel W. | Thorburn, Walter |
| Collings, Rt. Hon. Jesse | King, Sir Henry Seymour | Thornton, Percy M. |
| Cook, F. L. (Lambeth) | Lafone, Alfred | Tomlinson, W. E. Murray |
| Cooke, C. W. R. (Hereford) | Laurie, Lt.-General | Tritton, Charles Ernest |
| Cornwallis, F. S. W. | LawrenceSirEDurning-(Corn.) | Walton, J. L. (Leeds, S.) |
| Cox, Robert | Lawson, John Grant (Yorks) | Webster, Sir R. E. (I. of W.) |
| Cozens-Hardy, Herbert H. | Llewelyn,SirDillwyn-(Sw'ns'a) | Wentworth, B. C. Venon- |
| Cranborne, Viscount | Lockwood, Lt.-Col. A. R. | Williams, Col. R. (Dorset) |
| Cross, Alexander (Glasgow) | Loder, Gerald Walter E. | Williams, J. Powell (Birm.) |
| Cubitt, Hon. Henry | Long, Rt. Hon. W. (Liverp'l) | Willox, Sir John Archibald |
| Curzon,RtHnG.N. (Lanc.,SW) | Lowe, Francis William | Wortley, Rt.Hn. C. B. Stuart- |
| Curzon, Viscount (Bucks) | Lowles, John | Wyndham, George |
| Dalrymple, Sir Charles | Macartney, W. G. Ellison | |
| Davies,M.Vaughan-(Cardigan) | Maclure, Sir John William | TELLERS FOR THE NOES— |
| Dickson-Poynder, Sir John P. | McArthur, C. (Liverpool) | Sir William Walrond and |
| Douglas, Rt. Hon. A. Akers- | McKillop, James | Mr. Anstruther. |
| Fellowes, Hon. Ailwyn E. | Maden, John Henry |
§
Amendment proposed—
Page 1, line 5, after 'offence,' insert 'not triable by a court of summary jurisdiction.'"— (Mr. Strachey.)
§ MR. PICKERSGILLIn the absence of the honourable Gentleman I desire to move this Amendment. The effect of this Amendment if accepted will be to limit this change in the Jaw to the superior courts, and prevent the operation of the new practice in offences which are heard and determined in the courts of summary jurisdiction. Now, whatever we may think of the new practice it is obvious that it is liable to abuse. I can quite understand that members of the profession may entertain no alarm whatever with regard to its effect. When it is put into force in the superior courts the safeguards may be put upon it there. I do not wish to say any harsh or improper words with regard to the magistrates of this country, who, I think, compare favourably with any similar class in the world; but at the same time I think there are a certain class of cases in which I think this rule is likely to be provocative of mischief. The class of eases, for instance, such as those in the country where game is preserved. In such cases as those I think the magistrate has a little bias—in cases where a man is charged with poaching, or some offence against the game laws. Now, that being so what would be the effect of this Bill. Although it is said to be permissive, and no doubt is in theory, in practice and effect it is compulsory, and the defendant or accused, in order to avoid the prejudice which might otherwise be excited against him, will have to go into the witness-box and he will tell his story, and then I think it will be open to the justices to cross-examine him, and the bias which I attribute to them must be in favour of the prosecutor. Then there is another class of cases—I mean those Which occur in shipping towns where the bias has always been in favour of the employers. Under those circumstances I do not think it is unreasonable to ask that at all events it shall not apply to courts of summary jurisdiction.
§ SIR E. FINLAYI know I shall be within the recollection of the House when I say that this matter was 694 very fully discussed when this Bill was considered on a previous occasion. The honourable and learned Gentleman now proposes to exclude its operation in courts of summary jurisdiction before a magistrate. In order to get at all the facts of the case it is necessary now very often in those courts to allow cross-summonses to be taken out—which are not really cross-summonses—in order to enable the person who is accused to give evidence in his turn against the prosecutor, and thus enable the magistrate to hear all sides of the case. Now can anything be more absurd than that, and yet the honourable and learned Gentleman desires to perpetuate that state of things. Surely there is all the more reason in those cases for a man to tell his own story. We cannot accept the Amendment.
MR. GIBSON BOWLESI was rather pained to hear what the honourable and learned Gentleman opposite said with regard to the magistrates, who in my opinion give the greatest possible amount of satisfaction, and a great amount, in my opinion, of substantial justice is done by them. With regard to what the right honourable Gentleman the Attorney General said as to cross-summonses being taken out, I do not see in this Bill anything to prevent that being done even if this Bill does apply to courts of summary jurisdiction. This procedure will not prevent it. There is another reason why this Amendment should be adopted. This Bill is very complicated, and depends in many parts on a nice interpretation of the language used in it. It is not every prisoner, or the husband or wife of a prisoner, who is to be examined, under all circumstances. There are several provisoes and provisoes to provisoes. These proposals require very careful interpretation. Very doubtful cases may arise, and the high courts, no doubt, would be fully competent to deal with them, and would deal with them on a settled system, and one practice would be followed. But that would not be the case in the courts of summary jurisdiction to which this Amendment is directed. There would not be that ability to decide nice cases which is found in the high courts, and there would be different decisions 695 in different courts. The summary jurisdiction courts are themselves open to many objections from the constitutional point of view, and it therefore seems to me to be reasonable that this tremendous experiment brought in without any demand having bean made for it, and without any allegation against the present system, should be tried first in the superior courts, not in the summary jurisdiction courts, which cannot be so well provided to put the Act into force in a way satisfactory to the public as the high courts are. For these reasons the Amendment of the honourable Member seems to me to be reasonable.
§ MR. RADCLIFFE COOKEI think this Bill as it stands, if applied to courts of summary jurisdiction, especially in the country, would be an extremely useful Measure. I have sat on a bench of magistrates for a great number of years, and I may say it is our practice to do what this Bill now permits us to do. Magistrates constantly do, and do it with the greatest effect, ask a prisoner to explain when something is brought out which ought to be explained on his own behalf. As to the interpretation of the clause which my honourable Friend thinks would be difficult, it frequently happens that on a bench of magistrates there is one magistrate at least who has had a legal training, and if there is not, there is always the magistrate's clerk, who is a, trained lawyer in the majority of instances—I know of only one instance in which he is not—and he expounds the law to the magistrates. Of course, all the more serious cases coming before magistrates are committed, not to the superior courts, but to the court of quarter sessions. I approve the Bill as it stands, and therefore cannot support the Amendment.
§ MR. MADDISON (Sheffield, Brightside)Rightly or wrongly, I have feit during this Debate, in spite of all that has been said, that this Bill is against the prisoner, and it is against the prisoner who happens to be ignorant and poor. I agree with what has been said about some of these courts of summary jurisdiction. I have lived for some time in a shipping port, and in that, and in other industrial centres, there are constantly cases arising where working men are brought before a bench of magistrates who I believe endeavour to be fair, but who are recruited from one class; in the community, and therefore there is always danger that class prejudice will enter into and alter the view taken of such cases. In my opinion, this Bill, will tell against the prisoner, and if it were only to apply to the high courts, where there certainly is more protection, a great deal of the danger some of us; see in it would be removed. For that reason I support the Amendment.
§ *MR. DUNCOMBE (Cumberland, Egremont)I sincerely hope the honourable Member will persist with this Amendment. I agree that this Bill is an experiment, and as an experiment it should be confined for the present, at any rate, to the superior courts. I cannot, agree with the honourable Member for Hereford? that because justice is administered in his court in an irregular manner that is any reason for extending this Bill to all the other courts in the kingdom.
§ Question put.
§ The House divided:—Ayes 43; Noes, 120.—(Division List No. 237.)
697| AYES. | ||
| Allan, William (Gateshead) | Dalziel, James Henry | Lough, Thomas |
| Atherley-Jones, L. | Diekson-Poynder, Sir J. P. | Macaleese, Daniel |
| Bowles, T. G. (King's Lynn) | Donelan, Captain A. | MacNeill, John Gordon S. |
| Brigg, John | Doogan, P. C. | McLaren, Charles Benjamin |
| Broadhurst, Henry | Hemphill, Rt. Hon. C. H. | Maddison, Fred. |
| Caldwell, James | Hogan, James Francis | Mandeville, J. Francis |
| Cawley, Frederick | Holburn, J. G. | Norton, Captain Cecil W. |
| Crilly, Daniel | Jameson, Major J. Eustace | O'Brien, P. J. (Tipperary) |
| Curran, Thomas (Sligo, S.) | Leigh-Bennett, Henry Currie | O'Connor, Arthur (Donegal) |
| Daly, James | Leuty, Thomas Richmond | Oldroyd, Mark |
| Power, Patrick Joseph | Sullivan, Donal (Westmeath) | Yoxall, James Henry |
| Richards, Henry Charles | Tanner, Charles Kearns | |
| Sidebotham, J. W. (Cheshire) | Wills, Sir William Henry | TELLERS FOR THE AYES— |
| Spicer, Albert | Wilson, H. J. (York, W.R.) | Mr. Pickersgill and Mr. |
| Steadman, William Charles | Wilson, J. H. (Middlesbro') | Duncombe. |
| Stevenson, Francis S. | Woods, Samuel | |
| NOES. | ||
| Aird, John | Flower, Ernest | Moon, Edward R. P. |
| Arnold, Alfred | Forwood, Rt. Hon. Sir A. B. | Morrell, George Herbert |
| Arrol, Sir William | Foster, Harry S. (Suffolk) | Morton, A. H. A. (Deptford) |
| Atkinson, Rt. Hon. John | Garfit, William | Murray, Rt. Hn. A. G. (Bute) |
| Bailey, James (Walworth) | Gibbons, J. Lloyd | Nicol, Donald Ninian |
| Balcarres, Lord | Gibbs,Hn.A.G.H.(C.of Lond.) | Parkes, Ebenezer |
| Balfour,Rt.Hon.A.J. (Manc'r) | Giles, Charles Tyrrell | Philipps, John Wynford |
| Balfour, Rt.Hon.G.W. (Leeds) | Godson, Sir Augustus F. | Phillpotts, Captain Arthur |
| Balfour,Rt.Hn.J.B. (Clackm.) | Gorst, Rt. Hon. Sir John E. | Powell, Sir Francis Sharp |
| Barnes, Frederic Gorell | Goschen, George J. (Sussex) | Reid, Sir Robert T. |
| Barton, Dunbar Plunket | Graham, Henry Robert | Richardson, Sir T. (Hartlep'l) |
| Bathurst, Hon. Allen B. | Gray, Ernest (W. Ham) | Robertson, Herbert (Hackney) |
| Beach, Rt. Hn. SirM. H. (Brist'l) | Hamilton, Rt. Hon. Lord G. | Royds, Clement Molyneux |
| Bhownaggree, Sir M. M. | Hanbury, Rt. Hon. R. W. | Russell, T. W. (Tyrone) |
| Boulnois, Edmund | Hardy, Laurence | Rutherford, John |
| Bowles,Capt.H.F. (Middlesex) | Haslett, Sir James Horner | Samuel, J. (Stockton-on-T.) |
| Brodrick, Rt. Hon. St. John | Helder, Augustus | Sharpe, William Edward T. |
| Bucknill, Thomas Townsend | Henderson, Alexander | Sidebottom, W. (Derbyshire) |
| Bullard, Sir Harry | Hill, Sir E. Stock (Bristol) | Simeon, Sir Barrington |
| Cayzer, Sir Charles William | Hoare, Samuel (Norwich) | Smith, A. H. (Christchurch) |
| Chamberlain, J. A. (Worc'r) | Howell, William Tudor | Stanley, Lord (Lancs) |
| Charrington, Spencer | Jebb, Richard Claverhouse | Stock, James Henry |
| Clare, Octavius Leigh | Johnston, William (Belfast) | Stone, Sir Benjamin |
| Clarke, Sir E. (Plymouth) | Jones, W. (Carnarvonshire) | Thomas, A. (Carmarthen, E.) |
| Cochrane, Hon. T. H. A. E. | Kenrick, William | Thorburn, Walter |
| Coghill, Douglas Harry | King, Sir Henry Seymour | Thornton, Percy M. |
| Cohen, Benjamin Louis | Lafone, Alfred | Tomlinson, W. E. Murray |
| Collings, Rt. Hon. Jesse | Laurie, Lieut.-General | Tritton, Charles Ernest |
| Cooke, C. W. R. (Hereford) | LawrenceSirKDurning-(Corn.) | Webster, R. G. (St. Pancras) |
| Cornwallis, F. S. W. | Llewelyn, SirDillwyn-(Sw'ns'a) | Webster, Sir R. E. (I. of W.) |
| Cox, Robert | Lockwood, Lt.-Col. A. R. | Wentworth, B. C. Vernon- |
| Cozens-Hardy, Herbert H. | Loder, Gerald Vv alter E. | Williams, Col. R. (Dorset) |
| Cranborne, Viscount | Long, Rt. Hon. W. (Liverp'l) | Williams, John C. (Notts) |
| Cross, Alexander (Glasgow) | Lowe, Francis William | Williams, J. Powell (Birm.) |
| Cubitt, Hon. Henry | Lowles, John | Woodall, William |
| Durzon, Viscount (Bucks) | Lucas-Shadwell, William | Wyndham, George |
| Dalrymple, Sir Charles | Macartney, W. G. Ellison | |
| Davies,M.Vaughan-(Cardigan) | Maclure, Sir John William | TELLERS FOR THE NOES— |
| Douglas, Rt. Hon. A. Akers- | McArthur, C. (Liverpool) | Sir William Walrond and |
| Fellowes, Hon. Ailwyn E. | McKillop, James | Mr. Anstruther. |
| Finlay, Sir Robert B. | Maden, John Henry | |
| Fisher, William Hayes | Mellor, Col. (Lancashire) |
§ After the usual interval—
MR. GIBSON BOWLESsaid: Mr. Speaker, Sir, I beg to move the Amendment which stands in my name—
Page 1, line 7, after 'proceedings,' insert 'except inquiry before a grand jury.'The Bill, as the Committee will remember, provides that the arrangements provided by it shall be carried out at every stage of the proceedings. Now, Sir, the arguments by which I shall support the Amendment illustrate very strongly the 698 great disadvantages which I, an uninstructed layman, labour in dealing with the details of this Bill. With the great principles of the English law I think I am acquainted, and thus am able to found an opinion upon it; but when I come to the details I feel very conscious of my shortcomings with regard to those matters of detail. In the course of studying this Bill I referred—perhaps there are not a great many Members who have done so—to every one of the Acts referred to in the Schedule of this Bill as to which this clause relates. One is 699 the Criminal Law Amendment Act of 1885, and the last clause of that Act says:—Every person charged with an offence under this Act, or under section forty-eight and sections fifty-two to fifty-five, both inclusive, of the Act of the Session of the twenty-fourth and twenty-fifth years of the reign of Her present Majesty, chapter 100, or any of such sections"—that is the Act of 1861, also referred to in the Schedule—and the husband or wife of the person so charged shall be competent, but not compellable witnesses on every hearing, at every stage of such charge, except an inquiry before a grand jury.That, Sir, led me to ask why that exception should be made in two of the Acts which have been so often referred to—the Acts which, in fact, ensihrine the present proposal that the prisoner should be examinable against himself; why those exceptions were made as to the prisoner being examinable before the grand jury; why, in other words, he should be examinable at every other stage of the proceedings, and not before the grand jury? And, Sir, there seems to me—here, again, Sir, I crave indulgence if I have misapprehended the thing—there seems to me to be a good and sound reason why a prisoner who may be capable of being examined at every other stage of the proceedings should nevertheless be exempted from examination before the grand jury. Sir, there is a great difference and an enormous difference between being before the grand jury and every other stage of the proceedings. In the first place, every other stage of the proceedings is open to the public. The grand jury is closed to the public. That is a most stupendous difference. If a mistake is committed it is open to criticism, and undoubtedly will be criticised by the Press and the public. If any unfairness is practised upon the prisoner or his witnesses, comment will be made upon it, and if abuse has been committed redress will be achieved. That seems to me an enormous difference between every other stage of the proceedings and the grand jury stage. Then, again, what is the function of the grand jury? It is not to hear, to determine, and decide upon the case; its function is merely 700 to determine Whether there is or is not a primâ facie case. Again, I speak with submission. But I believe that is the sole function of a grand jury. Then, again, the grand jury may hear what witnesses it pleases. It may hear some and reject the others. I do not know whether it is possible for the grand jury to reject all witnesses, and to return a bill in accordance with the direction of the judge, but, at any rate, I believe I am right in saying it may take its choice among the witnesses and hear some and refuse to hear the others. Well, Sir, all these reasons—which I confess came to me afterwards, because I was first put upon the Amendment by the fact that I found it already enshrined in two of the Acts that have already been appealed to—all these reasons seem to me adequate reasons why before a grand jury you should not initiate the practice, the entirely new system—largely now in its principle, absolutely new in its detail—the new system, I say, which is embodied in this Bill. I do not know whether of course I am right in the conclusions I have come to. I do not know whether I am right in attaching all the force I do attach to the arguments that appeal to the lay mind in support of the argument I have presented; but it does seem to me extremely difficult to get over the fact that in two of the most important of the Acts, the Act of 1861 and the Criminal Law Amendment Act of 1885, there is embodied, not exactly in detail, but in principle, the opinion with regard to exempting a man in his own defence, on a charge against himself, from giving evidence before a grand jury—that you are not, in short, as I hold, to hang a man on his own evidence, if necessary. It seems to me that the fact that that principle has already been embodied in two of the Bills referred to in support of this very Bill goes strongly in favour of the Amendment I have suggested. I hold still my own opinion on the general principle of this Bill. I shall never be convinced that it is a safe experiment to make, or that it will be found a proper experiment to continue; but certainly one of the strongest arguments that have been advanced has been in regard to these very Acts that have been referred to—the 24, 25, or 26 Acts that have 701 been in operation up to this time. These very Acts have themselves convinced against the principle of the Bill some of the judges who were formerly in favour of it. But, at any rate, let us not go beyond these Acts; let us not expose the prisoner to be examined under more onerous and harder conditions than these Acts impose. I will take the two Acts I have cited. I have only, I think, given them their popular names; they are the Offences against the Person Act, 1861, and the Criminal Law Amendment Act, 1885. Both those Acts in the section that I have read make the reservation that I propose to make in this Act. I, of course, shall be entirely open to argument, and if the Attorney General can show me that the exception I propose to make is one which, although already made, already accepted, and already acted upon in the two Acts that he quoted, ought not to have been made in this particular case—if he can show me reasonable ground why that contention can be upheld, then I shall certainly not press the Amendment, because I feel that in this case I am not sufficiently learned or sufficiently acquainted with the law to absolutely pronounce upon that Bill. I have put the case as it seemed to me I have put the view I have derived from an earnest and conscientious study of this subject and the law, so far as I have made myself acquainted with it; I have embodied those views in the Amendment before the House, and unless there is good reason shown for departing from the provision of the two Acts I have referred to I shall press it to a Division. If, on the other hand, I hear arguments to show me I am wrong in the view I take of it, then I shall save the time of the House by withdrawing it.
§ MR. RADCLIFFE COOKEIf these words have already been inserted in two Acts of Parliament there will probably be no objection to their being inserted here; but my opinion is that, although they may have done something wholly unnecessary on two occasions, it is no reason why it should be done again. Before a grand jury—and I have had some little experience, because I was called on a grand jury last week—before a grand jury the prisoner is not on 702 his trial at all. He is not in charge of the grand jury. He is simply committed for trial. The grand jury have no sort of authority over him whatever. He cannot be put upon his trial until the grand jury have found a true bill of indictment. My honourable Friend here thinks it possible for a grand jury to find a true bill without examining any of the witnesses.
MR. GIBSON BOWLESNo, no; pardon me. I must have misrepresented my own opinion. I said I conceived it might possibly be so.
§ MR. RADCLIFFE COOKEWhen the foreman of a grand jury brings the bill into Court the first thing the clerk of assize does is to look at the indictment and see what witnesses have been marked, and if none have been marked he returns it to the grand jury and tells them to examine some of the witnesses. If the grand jury propose to throw out a bill, then they must examine every witness on the back of the indictment before they can do so. My opinion, founded on a little experience, is that this Amendment is entirely unnecessary, for reasons I have stated. The prisoner is not on his trial, he is not in charge of any judicial body whatever, and he cannot be in charge of any such body until the grand jury have found a bill of indictment. Then he is in charge, and then he can be tried.
§ SIR R. WEBSTERI may say at once that, really, this Amendment will have nothing in the world to do with the Bill. As far as the principle of the Bill is concerned I do not care whether it is inserted or not. That is not the reason we oppose it. We really consider it in the light of the experience we have had in the working of these Acts in the past. In ordinary circumstances the prisoner would never go before the grand jury. It would be foreign to the province of the grand jury to ask for him. Then I would ask the House to remember that the man cannot be called as a witness at all except on his own application. Now, it is from that point of view we have to consider whether it is desirable to exclude the grand jury. Nobody can say that the interests of justice would be in any way injured if a man tenders 703 himself to give evidence. I can see no reason why he should not go. I believe in 99 cases out of 100 it would never occur to the grand jury to ask the prisoner if he desires to give evidence. I think the honourable Member will see that nobody can suggest any injury can be done to a guilty or innocent prisoner by giving him the opportunity, if he chooses to apply, to offer himself to be examined before the grand jury. I quite agree with the honourable Member for Hereford that in practice he would never offer himself, but I cannot see a reason for preventing him from doing so, as would be done by putting in the words of the Amendment. My main argument is that it cannot possibly do any harm to allow the prisoner, the person charged, to go before the grand jury.
§ *MR. H. C. RICHARDS (Finsbury, E.)I do hope the honourable Member for King's Lynn will withdraw this Amendment, and not put the House to the necessity of a Division. Throughout this matter I have steadily opposed the principle of the Bill, but I am confident the learned Attorney General, by the reasons he has given the House, certainly ought to convince anyone that it is putting a privilege in the way of the prisoner to allow him to appear before the grand jury if he likes. My honourable and learned Friend the Member for Hereford has been giving his experience; but they seem to do things differently at Hereford from what they do at the Central Criminal Court. I have seen bills returned by the grand jury there and examined by the clerk of arraigns, not to see what witnesses are called, but to see if the foreman has put "true bill" or "no bill"—to See whether the foreman has signed it. I am confident that if this privilege be given it will only be exercised by educated men, because the ordinary criminal has no knowledge of what a grand jury is, and will naturally prefer to keep away from rather than be before a body where he cannot possibly be assisted by counsel. I am confident that the privilege which the Attorney General now proposes to offer to an accused person is one in the interests of justice, and therefore I do 704 hope my honourable Friend the Member for King's Lynn, who I know wishes to see the Bill made workable, though he does not agree with it in principle, will not put the House to the necessity of dividing, because in this case he will be assisting the conviction of an innocent man, or rather not assisting an innocent man to regain his liberty at the first possible opportunity. I can conceive of many cases where it would be an advantage far a man to go before a grand jury and give his own account of the affair; the grand jury might send down the indictment endorsed "no bill," and thus all the publicity, the painful publicity even loan innocent man, of a, trial before a judge and jury would be obviated.
§ MR. S. EVANSSir, inasmuch as the Government in the Committee stage accepted the Amendment of my honourable Friend on this side of the House to the effect that it would only call the prisoner upon his own application, I think a different complexion was put on the matter from what existed before. I should like, however, to ask the Attorney General whether a prisoner against whom an indictment can be preferred would have a right to go before the grand jury—whether the grand jury would, in fact, be bound to hear the person who is charged upon the indictment? If they would, I think it would be, in many cases, of great advantage to allow the prisoner to go before the grand jury. It does certainly seem anomalous that in one of the stages of the criminal procedure in this country the man should not be heard at all. We know that neither the man nor his witnesses can go before the grand jury. Their province is simply to find out whether a primâ facie case is made out; but if the Bill would enable and entitle a prisoner against whom an indictment has been preferred to go before a grand jury, it might be very much in favour of that individual. The honourable and learned Gentleman who spoke last said that in many cases, in his opinion, educated men might get off before the grand jury. In this matter I look upon the Bill chiefly, not from the point of view of the educated, but from the point of view of the uneducated man, and I want him to have an opportunity also of going before 705 the grand jury. I know one case, a very startling case. An honourable and honoured Member of this House, who had been a Member for years, was put on his trial before a jury. It was a tremendous trial for the man to stand in the dock—chains around him, the iron bar in front of him—arraigned in the dock before a petty jury. In that case, in that man had been allowed to go before a grand jury—I do not think it is very much use if the grand jury themselves have the right to say whether he shall be heard or not, but if he has the absolute right under this Bill to go before the grand jury—it might very well have happened in this case that he would have been able to obviate the great trial, which, I think, was the sorest trial he ever experienced in his life. He was acquitted, and no one ever doubted that he would be acquitted. The trial did not go to a conclusion. The jury stopped the case, and a verdict of "not guilty" was returned. If he had had the right to go before the grand jury, I think the circumstances would have obviated the necessity of his being placed in the dock. I should like the Attorney General to state whether or not it will be in the right of a prisoner against whom an indictment has been preferred before a grand jury, to go before the grand jury and place his statements before them. In one respect a prisoner appearing in that way before a grand jury will be in a better position than one appearing before a petty jury, because, as we know, advocates do not go before a grand jury at all, and therefore he would not be subject to cross-examination. He would make his statement subject to questions from the members of the grand jury, but not in the ordinary way subject to the arts of the advocate. My view of the Amendment would be a good deal altered if the prisoner was not to have a right to appear before the grand jury, and I desire that he should have that right.
§ MR. PICKERSGILLThe question is whether the words of the Bill confer that right, and I venture, with great respect, to suggest that they do not. The words are that—
Every person charged shall be a competent witness for the defence at every stage of the proceedings.706 But if there is a true bill, then there is no defendant, and there is no defence. If you are going to revolutionise the practice with regard to proceedings before a grand jury, I submit that these words do not effect your object. You must express it in precise terms.
§ MR. ABEL THOMASSir, I always thought it was a recognised rule of law that a grand jury can, after they have heard sufficient evidence to enable them bring in a true bill. By this Bill they need not be compelled, nor by this Bill can they be compelled, to hear the prisoner himself; but I venture to think that whenever there is a doubtful case, and when the grand jury are told that the prisoner wishes to come before them, they would hear him. I am afraid, however, they would not be compelled to hear him. It appears to me it would he a distinct advantage to the prisoner, whether guilty or innocent, that he should have a chance of getting before the grand jury.
§ SIR A. FORWOODI do not like, as a layman, to interfere in this Debate, but as one who has had for many years to preside over a grand jury, I do hope this; Amendment will not be accepted, as from, my experience before that tribunal I can concur in what has been said, that there are many cases in which a man could have offered himself as a witness when he would have escaped being placed in the dock.
§ SIR R. REIDI agree with the principle of this Amendment, but I think it ought not to be pressed, in the interests of the prisoners, who certainly could injure themselves in their ultimate trial. There is only one thing I would venture to suggest, and that is that, while grand juries would probably accept the evidence of the prisoner, they would not be compelled to do so. I would suggest that the honourable Member should withdraw his Amendment, and to put the matter beyond doubt the words should be, "shall be a competent witness for the defence at every stage of the proceedings, including inquiry before a grand jury." That would put it beyond doubt. I rather doubt whether the grand jury, under the Bill as it stands, would be compelled to hear the prisoner if he offered himself.
§ *MR. BUCKNILLI should like to draw attention to what the Attorney general said to me when I raised this point on the Second Beading of the Bill. I am reading now from "Hansard." I said—
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.Thereupon the learned Attorney General made this observation—According to the Bill such could not be the case,which I rather gather means that, in his opinion at that time, it was his view that by the word "proceedings"—in all proceedings—it would not be competent for a prisoner, an accused person, to go before the grand jury, and therefore I do think, following what my honourable and learned Friend has just said, that it would be right to make this quite clear by the insertion of such words as he has proposed. My objection no longer stands to an accused person going before a grand jury, because, since the time when I then spoke, the words "upon his own application" have been inserted in the Bill.
§ SIR R. WEBSTERI think the words suggested ought not to be inserted. It is obvious that nothing of an inquisitorial character is intended.
MR. GIBSON BOWLESI feel in some doubt whether I ought to withdraw or not after what the learned Attorney General has said. I certainly do not feel disposed to press the Amendment in view of what has been said, and, therefore, if the House will allow me, I will withdraw at.
§ Amendment, by leave, withdrawn.
§
Amendment proposed—
Page 1, line 7, after 'proceedings,' insert 'including an inquiry before a grand jury.'"—(Mr. Pichersgill.)
§ MR. PICKERSGILLSir, I beg to move—
To insert 'including an inquiry before a grand jury' after 'proceedings.'
§ SIR R. WEBSTERI have really answered this before. I thought I expressed myself clearly. I think it, would be an unwise thing to pick out one particular stage.
§ SIR R. REIDI think we are bound to accept these words. The only difficulty that arises is in connection with the words—
shall be a competent witness for the defence at every stage of the proceedings.Now, observe the grand jury does not hear witnesses for the defence. Does that not throw a certain element of doubt? I am sure the Attorney General wishes the law, as we all wish the law, to be clear.
§ *MR. BUCKNILLThat seems to be the very point. What happens before a grand jury? The grand jury calls before them all those witnesses, and all those witnesses only, whose names are upon the back of the indictment. The grand jury can only, of their own motion, call before them those persons who, being witnesses, have their name on the back of the indictment; and it is every-day practice that if one on the other side wishes to call other witnesses at the trial the names of such persons are added to the back of the bill. As the accused person's name cannot be put at the back of the bill, as the object of the grand jury is only to say whether a primâ facie case is made out a against the accused person, and as those words can do no harm, I would respectfully ask why they should not be inserted?
§ SIR R. FINLAYMr. Speaker, we have said that by the words,
is competent at every stage of the proceedings.Surely, it is perfectly clear that proceedings before a grand jury are a stage. I really cannot imagine the grand jury refusing.
MR. GIBSON BOWLESSir, I do think that as doubt has been raised by the honourable Gentleman on the Front Bench opposite the Government might 709 accept these words. I would remind the Attorney General that the words "for the defence" have been introduced. They are an after thought, but they nave changed, I believe, the effect of the words as they were originally introduced. As the Bill originally stood, it was "Every person charged with an offence" and so forth, "shall be a competent witness at every stage of the proceedings"; but you have introduced the words "for the defence." As I understand there is no defence, it is a question of whether there is a primâ facie case before the grand jury. Surely since the introduction of those words "for the defence" the words suggested by the honourable Gentleman opposite have become necessary. The Government admit that they express their intention, and I am therefore in the strange position, after the explanation that has been given to the House, of having to support an Amendment which is in a contrary sense to the one I moved myself. The explanation given showed me that the prisoner could be heard before the grand jury, and on that ground I withdrew my Amendment. Then the doubt was raised whether he could be heard before the grand jury on his own application. I confess at present there is very serious doubt, which ought to be removed by the acceptance of the words of the honourable Gentleman opposite. If the Government go to a Division on this subject and refuse to accept what admittedly expresses their own intention, I shall be under the painful necessity of voting with the honourable Gentleman opposite.
§ *SIR C. HALLSir, I intend to oppose this Amendment, because I view with great apprehension a proposal—and I regret that that proposal is agreed to to a certain extent by Her Majesty's law officers—to completely change the function of the grand jury. Now what are the functions of the grand jury? They are to decide whether or not there is a primâ facie case against the accused person. If there is not, it is their duty to throw out the bill. Then what are they to call the defendant before them for? Is it to see whether, there being a primâ facie case, his statement will alter their views? Practically it will make them a 710 tribunal to say whether or not the primâ facie case on which they are prepared to return a true bill is to be negatived because of some evidence they hear from he accused person. To my mind this is a most dangerous principle to adopt. You are proposing to make the grand my a tribunal to try a question—that is to say, into a jury to try facts, a thing utterly subversive of the principles of the grand jury. If there is primâ facie evidence to show there is a true bill, it is their duty to say so; but it is not their duty to call the accused person to see whether lie could contradict the primâ facie evidence. I repeat, the question is whether there is primâ facie evidence or not. That is the function of the grand jury; and I shall be very sorry to see. Anything put into this Bill which will effect their position or duties in any way whatever.
§ *MR. SERJEANT HEMPHILLI confess I altogether agree with the honour able and learned Member who last spoke. This Amendment appears to me to be quite subversive of the function of the grand jury. Take a case. A bill is sent up against a man for murder. The grand jury have no option now but to find a bill for murder or to ignore the bill; but if it is competent to examine the prisoner or the accused person, then the question will arise whether it is; murder or manslaughter, and the grand jury will be greatly embarrassed. The principles on which a petty jury can convict for manslaughter on a charge of murder are well settled. Every judge charging a grand jury says: "You are to find whether there is a primâ facie case; you are not to go into matters of defence, or questions of justification; leave that to the petty jury; your function is to find whether a primâ facie case has been; established." I shall certainly vote against the Amendment in this particular case, because as the section stands without this Amendment it would not, in my opinion, be possible for the grand jury to examine the prisoner; and I think the grand jury ought not to have that power.
§ MR. S. EVANSI am sorry to express any opinion different from that held by the Attorney General. I had 711 some doubts on the point, and I have been able to refer to an eminent authority, Sir James Stephen, in his "Digest of the Law of Criminal Procedure." It is perfectly clear from a statement here of that learned authority that grand juries have nothing to do with the defence; and therefore the insertion of the words "for the defence" make it absolutely recessary to insert some such words as are here proposed, otherwise the desire of the Government will not be carried out. The words or Mr. Justice Stephen are these—the passage is not very long—
The foreman of the grand jury, or any member thereof for the time being acting on behalf of such foreman in the examination of witnesses in support of any bill of indictment"—not in defence—in support of any bill of indictment, is authorised and required to administer an oath or affirmation to all persons whomsoever who may appear before such grand jury, to give evidence in support of any bill of indictment, and all such persons attending before any, grand jury to give evidence may be sworn or affirm, and examined upon oath or affirmation, by such grand jury touching the matter in question.and further—The name of every witness examined or intended to be so examined must be endorsed on such bill of indictment, and the foreman of such grand jury must write his initials against the name of each witness so sworn or affirming and examined touching such bill of indictment. It is not necessary for any person to take an oath in open court in order to qualify such person to give evidence before any grand jury.Then comes an Article dealing with the examination of witnesses. Then the learned author of this book deals with the bills which may be sent to the grand jury—Any person may present a bill to any grand jury, accusing any other person of any crime whatever, without giving any previous notice to such persons and without taking any previous proceedings before any justice or coroner, except in the cases specified in the next Article.Those cases, of course, as the House is aware, are cases under the Vexatious Indictment Acts. That shows how important it is to allow prisoners to give evidence in their own behalf before the grand jury, because in cases outside the 712 Vexatious Indictments Acts nobody could present a bill before the grand jury, but in the passage I have read it is perfectly clear it is not the function of the grand jury to examine the witnesses for the defence, but the witnesses whose names are on the indictment. Therefore the acceptance by the Government of the words "for the defence" make it absolutely necessary to have some such words as are now suggested inserted in the body of the clause, if it should be the desire of the House that the grand jury should have the power to call witnesses for the defence.
§ SIR E. CLARKEI hope the learned Attorney General will refuse to accept these words. To allow a defendant to be called as a witness before a grand jury is to make an alteration in the criminal procedure of this country larger than anything made in the Bill. It would change the grand jury into a judicial tribunal to decide for or against the guilt or innocence of the defendant in private without any of that check of publicity or habit of dealing with legal affairs which are found to be so important. I therefore hope the Amendment will not be pressed.
§ MR. ABEL THOMASI do not know whether we quite understand what the grand jury have to do. A grand jury has, in a sense, to try the case placed before it. One of the greatest rights which an Englishman has lies in the fact that he knows that 12 or more of his fellow-countrymen shall in secret decide whether or not he shall be put on trial. In theory, my honourable Friend the Member for Plymouth and my honourable Friend; the Recorder of London [Sir C. Hall] are right. In practice, however, I differ from them. The grand jury do to a very large extent try the oases, and if they see a case which they think ought not to be tried in open court, in which they think the accused is entitled not to be put upon his trial, they throw out the bill. I think I understood that the Government intended that the man who was tried should be able to come before the grand jury and make his own statement; he cannot, of course, compel the grand jury to hear him. Of that I am quite sure, because the grand jury is entitled to say: "No, we have heard 713 enough," if a primâ facie case is made out against the prisoner. At the same time in some cases it will give an innocent man an additional chance of getting off, and really without going through the trouble and anxiety of a charge in open court. And as I have been convinced by the Attorney General and Solicitor General themselves that this change should take place I am not going to turn my back upon my own convictions. I hope these words will be accepted by the Solicitor General, because, although I do not think they are necessary, when I remember that the prisoner is a competent witness for the defence I venture to think that it is desirable to insert them.
§ SIR R. FINLAYI have been convinced that these words ought to be inserted. It is obviously true that the function of grand juries is not to enter into the evidence that may be given for the defence, but that practice was established at a time when the defendant was not a competent witness. The grand jury should be satisfied whether or not there is a primâ facie case, and if the defendant is a competent witness it would be a monstrous injustice, if he desires to come forward at the first stage of the proceedings in the court where he is to be tried, and to show the grand jury that there is not a primâ facie case, that he shall not be at liberty to do so. I have, therefore, been convinced that the insertion of the words is desirable, and the Government propose to accept them.
§ MR. RADCLIFFE COOKEI submit that what is proposed under the guidance of my honourable and learned Friend is the creation in this country of a new court altogether. We are going to make It a totally different tribunal from what the people want it to be—a tribunal composed of persons who have necessarily no knowledge of legal matters, and who conduct their business in secret, and ask any questions they like of the witnesses. If that is a proper court to try people, let us say so, and alter the constitution of the grand jury in a proper way. Do not let us be carried away by our feelings, and constitute a court which nobody would have any confidence in, knowing as we do the loose way in which grand juries necessarily conduct their business. 714 You change the grand jury from a mere inquiry into a Crown court, and you change the Crown court into a court of appeal. If you desire to alter the functions of the grand jury, do not do it in this way. A Bill ought to be brought in for the express purpose, and in an open manner. The matter should not be dealt with by a side wind, as is proposed by this Bill. I hope some honourable Members on the opposite benches who have had experience of legal matters will say what they think of this proposal.
§ MR. CALDWELL (Lanark, Mid)I think the Government are to be congratulated on the course they have adopted. It is giving a prisoner in England an opportunity, at the earliest possible stage, of making his statement. The privilege is accorded to every prisoner in Scotland, where the grand jury is analogous to a statement before a sheriff.
§ VISCOUNT CRANBORNE (Rochester)I confess that Her Majesty's Government have placed me in a very difficult position. I have had experience in a humble way of how these things are actually worked. I myself have had the honour of being chairman of a grand jury, and I know exactly what takes place. Of course, it is understood that the grand jury allow no witnesses at all for the defence, and that, when they have found a merely primâ facie case, they leave it to the petty jury to arrive at a final decision as to the guilt or innocence of the person accused; but I should like to say that it does appear to me that if the procedure is to be altered we shall have to go a great deal further. In the first place, as has been pointed out, the grand jury is a scout body. There are no reporters present, and, indeed, nobody, except the grand jury and the officers of the court. It is not merely the question of the guilt or innocence of the accused which is involved, but the guilt or innocence of the prosecutor; and it follows that a case of that kind ought to be tried in open court. Moreover, the grand jury have no legal assistance. There is nobody to advise them, except, of course, the clerks, and under those circumstances they may go wrong in a case in which the character of the prosecutor is as much involved as that of the accused, and may 715 by such wrong decision cast an undeserved stain upon the prosecutor. I do not, of course, desire to put myself up as an authority; but I do think this is too great a change to make in what is almost the last stage of the Bill, and when, if we decide the matter wrongly, there will hardly be an opportunity to set it right.
§ MR. LAWSON WALTONI desire to endorse the observations which have fallen from the noble Lord. In attaching this construction to the Bill the Government entirely change the functions and the character of one of the tribunals best known to the Constitution. The only function of a grand jury is to test whether or not the case proposed to be submitted to the consideration of the petty jury is a primâ facie case. It is, however, now proposed to give to the grand jury an entirely new jurisdiction. I cannot imagine a graver proceeding than that a case should be tried before a secret tribunal, where the public is not represented, where the evidence is not reported, and where there is no means of reviewing the decision.
§ MR. CRIPPS (Stroud)I entirely agree with what has been said by the honourable Member for South Leeds. I think that what has induced law offices to intimate their acceptance of the words of the Amendment is the consideration that it will be to the advantage of the prisoner to give his account at the earliest possible stage. No doubt it would be, but there are considerations on the other side which will very much outweigh the question of any advantage there may be in favour of the prisoner. To begin with, the functions of a grand jury would be materially altered, for, apart from the question of primâ facie information, they would more or less try the case itself. I certainly hope that the law officers will reconsider the attitude they have taken upon this: matter. It is perfectly true that in many of these prosecutions the issue is as much as to the character of the prosecutor as to that of the prisoner, and surely we ought not to have the character of the prosecutor tried, as it really will be tried, by the proceedings before the grand jury. I sincerely hope that under these circumstances, the functions of the grand jury will not be altered, although, 716 so far as the prisoner is concerned, it would be to his advantage.
§ SIR R. WEBSTERAs I am rather responsible for the difficulty into which, the House has got, I may perhaps explain that I did not conceive that the inclusion or exclusion of the words, could have been thought by anyone to alter the functions of the grand jury. I am surprised that that is the view taken by experienced men. The Bill distinctly says "a competent witness for the defence," and a person can only give evidence on his own application. Therefore, as I have already said, in 99 cases, out of 100 the matter can never arise, because the grand jury will not be able to summon a man, and it will only be in an exceptional case that a man will apply to be heard. I never contemplated that by including the grand jury room as a place where the prisoners; might be called the Government would be charged with changing the functions, of the grand jury. Obviously we are not all quite agreed, and I would suggest that the matter should be allowed to stand, and then we can consider the question later.
§ SIR H. H. FOWLERMr. Speaker, I have been one of the strongest advocates of the Bill, but I am utterly appalled at the introduction of this change. Certainly, so far as my support is concerned, I shall have to reconsider my position, because to my mind there is a complete revolution in the tribunal of the grand jury if it is to be made a sort of trial in which witnesses for the defence are to be called before it. The grand jury has to establish a primâ facie case for the prosecution, and nothing more. Assuming a prisoner does give his evidence, and the grand jury find a bill against him, they are practically deciding the case, and the man will be put to a very great disadvantage when the, time arrives for his trial. I shall certainly vote against these words being introduced.
§ SIR R. FINLAYI certainly think it is extremely desirable that accused persons who desire to be heard by the grand jury should be allowed to be, but I aim bound to recognise that we have had expressions of opinion that though 717 this change is a highly beneficial one so far as the person accused is concerned, it would involve another change of a very extensive nature. No one certainly would desire that all the witnesses for the defence should be called before a grand jury. The idea I had in my mind was that the accused person should, if he so desired, be allowed to make an explanation before the grand jury. Honourable Members of great experience now tell us that if this change were adopted it would bring with it another and much more extensive change. I will never be a party to a scheme under which all the witnesses for the defence may be called before the grand jury, and inasmuch as it appears that the preponderating opinion in the House is that a change in the direction I desire cannot be made without introducing another change of a revolutionary character, I think it is not desirable that the Amendment of my learned Friend, with which I confess I was very much taken, should be adopted. The House must understand, however, that I cannot change my opinion as to the desirability of allowing the accused person to be heard by the grand jury.
§ SIR E. REIDMay I be allowed, by the indulgence of the House, to say a very few words? I am not going to say anything for the purpose of making any comparison. The situation is this: The words "for the defence" were not in the Bill as it originally stood; they were introduced in the Committee. When we were discussing this question, the Attorney General and the Solicitor General said that in their opinion, the introduction of the words "for the defence" did not alter the original character of the Bill, and that, according to the Bill as it now stands, and without any Amendment, the accused would be a competent person to go before a grand jury as a witness. That is what the Attorney General and the Solicitor General said before a good many honourable gentlemen who are present in this House now. I pointed out that it was doubtful whether the words "for the defence" had not made an alteration. That was the sole question before the Committee. The Government say now, and I think they are right, that no possible harm can be done by the introduction 718 of these words. They only mean that the prisoner himself will go before the grand jury and will say:—"Before you put me to the public shame of being tried, listen to what I have to say myself." That is the intention of the Government, and they ought to adhere to it. It will in no sense be a trial of the case, and the only question before the jury would be whether or not a true bill should be returned.
§ MR. HAVELOCK WILSON (Middlesbrough)It appears to me that the legal Gentlemen on both sides of the House are very much mixed up in this question. There is one way out of the difficulty, and that is to abolish grand juries entirely. I can hardly see the use of a man being tried before a magistrate, while he has an opportunity—
§ *MR. SPEAKEROrder, order! The honourable Member's remarks are not in order.
§ *MR. HEDDERWICK (Wick Boroughs)The desire expressed by the right honourable and learned Gentleman, the Attorney General, is entirely opposed to the whole theory of the grand jury system. The grand jury exists for one purpose, and for one purpose only; that is to find whether the evidence for the prosecution amounts to a primâ facie case against the prisoner; but if a prisoner is to give evidence before a grand jury the result must be that a trial of some sort will be held by the grand jury. I wish only to say further that, in my opinion, there is no tribunal more incompetent to try cases than a grand jury, summoned and constituted as it is for the sole purpose of ascertaining whether the evidence for the prosecution amounts to a primâ facie case.
§ MR. LEUTY (Leeds)If a prisoner is to be heard before a grand jury, that amounts to bringing him up for examination in camera. Procedure like that means the introduction of a vicious principle, and I think that, in the future, it will do very much more harm than the grand jury can do.
§ The House divided:—Ayes 55; Noes 179.—(Division List No. 238.)
721| AYES. | ||
| Bolton, Thomas Dolling | Holburn, J. G. | Sidebotham, J. W. (Cheshire) |
| Bowles, T. G. (King's Lynn) | Horniman, Frederick John | Sinclair, Capt. J. (Forfarsh.) |
| Brigg, John | Jones, W. (Carnarvonshire) | Spicer, Albert |
| Broadhurst, Henry | Kearley, Hudson E. | Steadman, Wiliam Charles |
| Caldwell, James | Langley, Batty | Stevenson, Francis S. |
| Cameron, Robert (Durham) | Lewis, John Herbert | Sullivan, Donal (Westmeath) |
| Cawley, Frederick | Lough, Thomas | Thomas, A. (Carmarthen, E.) |
| Clark, Dr. G.B. (Caithness-sh.) | Macaleese, Daniel | Thomas, A. (Glamorgan, E.) |
| Clough, Walter Owen | MacNeill, John Gordon S. | Walton, Joseph (Barnsley) |
| Crilly, Daniel | Maddison, Fred. | Williams, John C. (Notts) |
| Curran, Thos. (Sligo, S.) | Mandeville, J. Francis | Wills, Sir William Henry |
| Daly, James | Norton, Capt. Cecil William | Wilson, John (Govan) |
| Dalziel, James Henry | O'Connor, Arthur (Donegal) | Wilson, J. H. (Middlesbro') |
| Davitt, Michael | Pirie, Duncan V. | Woods, Samuel |
| Doogan, P. C. | Power, Patrick Joseph | Yoxall, James Henry |
| Duckworth, James | Price, Robert John | |
| Duncombe, Hon. H. V. | Provand, Andrew Dryburgh | TELLERS FOR THE AYES— |
| Dunn, Sir William | Reid, Sir Robert T. | Mr. Pickersgill and Mr. |
| Farquharson, Dr. Robert | Richards, Henry Charles | Samuel Evans. |
| Forwood, Rt. Hn. Sir A. B. | Roberts, J. H. (Denbighs) |
| NOES. | ||
| Arrol, Sir William | Curzon, Viscount (Bucks) | Jebb, Richard Claverhouse |
| Asher, Alexander | Dalrymple, Sir Charles | Johnston, William (Belfast) |
| Atherley-Jones, L. | Davies,M.Vaughan-(Cardigan) | Kemp, George |
| Atkinson, Rt. Hon. John | Dickson-Poynder, Sir J. P. | Kenrick, William |
| Bailey, James (Walworth) | Disraeli, Coningsby Ralph | Kenyon-Slaney, Col. Wm. |
| Baird, John George Alex. | Donkin, Richard Sim | King, Sir Henry Seymour |
| Balcarres, Lord | Douglas, Rt. Hon. A. Akers- | Lafone, Alfred |
| Balfour, Rt.Hn. A. J. (Manc'r) | Fellowes, Hon. Ailwyn E. | Laurie, Lieut.-General |
| Balfour, Rt. Hn. G. W. (Leeds) | Field, Admiral (Eastbourne) | Lawrence, Sir E. D. (Cornw'll) |
| Balfour, Rt.Hn.J.B.(Clackm.) | Finch, George H. | Lawson, John Grant (Yorks) |
| Banbury, Frederick George | Finlay, Sir R. Bannatyne | Lawson, Sir W. (Cumb'land) |
| Barton, Dunbar Plunket | Fisher, William Hayes | Leigh-Bennett, Henry Currie |
| Bathurst, Hon. Allen B. | Flannery, Fortescue | Leuty, Thomas Richmond |
| Beach, RtHnSiarM. H. (Bristol) | Flower, Ernest | Llewellyn, E. H. (Somerset) |
| Bethell, Commander | Folkestone, Viscount | Lockwood, Lt.-Col. A. R. |
| Bhownaggree, Sir M. M. | Foster, H. S. (Suffolk) | Loder, Gerald Walter E. |
| Bowles, Capt. H. F. (Mid'sex) | Fowler, Rt. Hon. Sir Henry | Long, Col. C. W. (Evesham) |
| Brodrick, Rt. Hon. St. John | Garfit, William | Long, Rt. Hn. W. (Liverpool) |
| Bucknill, Thomas Townsend | Gedge, Sydney | Lopes, Henry Yarde Buller |
| Bullard, Sir Harry | Gibbons, J. Lloyd | Lorne, Marquess of |
| Burt, Thomas | Gibbs,Hon.A.G.H.(C.ofLond.) | Lowe, Francis William |
| Cavendish, R. F. (N. Lancs) | Giles, Charles Tyrrell | Lowles, John |
| Cavendish, V.C.W.(Derbysh.) | Gilliat, John Saunders | Lucas-Shadwell, William |
| Cayzer, Sir Charles William | Godson, Sir Augustus F. | Macartney, W. G. Ellison |
| Cecil, Evelyn (Hertford, E.) | Gorst, Rt. Hon. Sir J. E. | Maclure, Sir John William |
| Chaloner, Capt. R. G. W. | Goschen, George J. (Sussex) | McArthur, Chas. (Liverpool) |
| Chamberlain, J. A. (Worc'r) | Graham, Henry Robert | McArthur, Wm. (Cornwall) |
| Charrington, Spencer | Gray, Ernest (West Ham) | McKillop, James |
| Clare, Octavius Leigh | Gull, Sir Cameron | Maden, John Henry |
| Clarke, Sir E. (Plymouth) | Hall, Sir Charles | Mendl, Sigismund Ferdinand |
| Cochrane, Hon. T. H. A. E. | Hamilton, Rt. Hon, Lord G. | Milbank, Sir Powlett C. J. |
| Coghill, Douglas Harry | Hanbury, Rt. Hon. R. W. | Monk, Charles James |
| Cohen, Benjamin Louis | Hardy, Laurence | Moon, Edward Robert Pacy |
| Collings, Rt. Hon. Jesse | Harwood, George | Morgan, Hn. F. (Monm'thsh.) |
| Colston, C. E. H. Athole | Hayne, Rt. Hon. Chas. Seale- | Morrell, George Herbert |
| Cooke, C. W. R. (Hereford) | Hazell, Walter | Morton, A. H. A. (Deptford) |
| Cornwallis, Fiennes S. W. | Heaton, John Henniker | Muntz, Philip A. |
| Cotton-Jodrell, Col. E. T. D. | Hedderwick, Thomas C. H. | Murray, Rt. Hn. A. G. (Bute) |
| Cox, Robert | Helder, Augustus | Murray, Chas. J. (Coventry) |
| Cozens-Hardy, Herbert H. | Hemphill, Rt. Hon. C. H. | Murray, Col. W. (Bath) |
| Cranborne, Viscount | Henderson, Alexander | Myers, William Henry |
| Cripps, Charles Alfred | Hermon-Hodge, Robert T. | Newdigate, Francis Alexander |
| Cross, Alexander (Glasgow) | Hoare, Samuel (Norwich) | Nicol, Donald Ninian |
| Cruddas, William Donaldson | Howell, William Tudor | Northcote, Hon. Sir H. S. |
| Cubitt, Hon. Henry | Jameson, Major J. Eustace | Parkes, Ebenezer |
| Philipps, John Wynford | Schwann, Charles E. | Walton, J. L. (Leeds, S.) |
| Phillpotts, Captain Arthur | Shaw-Stewart, M.H. (Renfrew | Webster. R. G. (St. Pancras) |
| Pollock, H. F. | Simeon, Sir Barrington | Webster, Sir R. E. (I. of W.) |
| Powell, Sir Francis S. | Sinclair, Louis (Romford) | Wentworth, B. C. Vernon- |
| Rasch, Major Frederic Carne | Smith, A. H. (Christchurch) | Williams, Col. R. (Dorset) |
| Richardson, Sir T. (Hartlep'l) | Stanley, Lord (Lancs) | Williams, J. Powell (Birm.) |
| Rickett, J. Compton | Stanley, E. J. (Somerset) | Willox Sir John Archibald |
| Ridley, Rt. Hon. Sir M. W. | Stock, James Henry | Wilson, J. W. (Worc'r, N.) |
| Robertson, H. (Hackney) | Stone, Sir Benjamin | Woodall, William |
| Robson, William Snowdon | Strauss, Arthur | Woodhouse,SirJT(Hudd'rsf'ld) |
| Roche, Hon. J. (East Kerry) | Strutt, Hon. Charles H. | Wortley, Rt.Hn. C. B. Stuart- |
| Royds, Clement Molyneux | Sturt, Hon. Humphry N. | Wyndham, George |
| Russell, T. W. (Tyrone) | Thorburn, Walter | |
| Rutherford, John | Thornton, Percy M. | TELLERS FOR THE NOES— |
| Ryder, John Herbert D. | Tomlinson, Wm. E. Murray | Sir William Walrond and |
| Samuel, J. (Stockton-on-Tees) | Tritton, Charles Ernest | Mr. Anstruther. |
§
Amendment proposed—
Page 1, line 11, after 'charged,' insert 'and the wife or husband, as the case may be, of the person so charged shall not be called as a witness without his or her consent.'"—(Mr. S. Evans.)
§ MR. S. EVANSIf this Amendment is adopted, the wife or husband of the person charged cannot be called as a witness without his or her consent. Sir, the whole scheme in a very few words depends upon this, that the person charged, or his wife, as the case may be, is a competent and not a compellable witness, and when the Bill was before the Committee the Government accepted the words "except upon his own application." The result was that the prisoner charged could not be compelled to give evidence at all. Now, if this right in given with regard to the person charged, it certainly ought to follow in the case of a wife or husband, and the Government having accepted one, they ought to accept the other.
§ SIR R. WEBSTERI must resist the Amendment on the ground that, if the man charged wishes his wife, or the woman charged wishes her husband, to give evidence, the wish of the prisoner ought to be respected. The object of enacting that the prisoner should not be called as a witness, except upon his own application, is to protect the person charged. There is a broad distinction between the person charged and the wife or husband and an ordinary witness.
MR. GIBSON BOWLESThe Attorney General must remember that the prisoner himself, and the wife or husband, as the case may be, are all new witnesses, and they are brought for the first time within 722 the general criminal law; in fact, wit nesses have been brought in already under certain special Acts of Parliament in certain specially specified cases. The prisoner himself is a new witness, his wife is a new witness, and the prisoner's husband is a new witness, and it is very reasonable that an Amendment of this kind should be adopted. The prisoner himself, who is one of the new witnesses is not to be called without his consent Now, why should you drag the wife into the box to give evidence against her husband, to be subjected to cross examination? It is quite true that your cross-examination is guarded by provisoes, but they are of no value what ever, and they will disappear entirely before the efforts of the most unskilled counsel. A wife may be called for the defence, and in the course of skilful cross-examination information may be gleaned which may be sufficient to place the rope round her husband's neck. Take the case of a man accused of having been on a poaching expedition, and inflicting serious injuries on the watchers and gamekeepers. As the case turned out under the present law, the man was a witness, but, had he been examined, he would have been convicted, because it was shown that he was not at home that night, although it that been stated that he was at home. Now, under these circumstances, you want to call the wife, whether she likes it or not, and she is to be called as a witness for the defence in order to be cross-examined. I do not think, Sir, that having admitted the principle that the consent of the person charged must be obtained, you certainly ought to admit the same principle in the case of the wife and husband. I think this is a very reasonable Amendment, and one which ought to be adopted.
§ MR. ABEL THOMASI think this proposal is one which is very much against the prisoner, because either he or she has to decide whether or not the evidence of her husband, or his wife, as the case may be, will be of any use for the defence. I think that is clear under the Bill. That being the case, it amounts to this: that if the husband or wife is innocent, they will come forward and give evidence. But there are hundreds of cases in which the wife would be only too glad to get rid of her husband, and she will not care to commit perjury for that purpose. The
§ result of the Amendment will be this, that when the unfortunate husband, who is a prisoner, says he will call his wife as a witness, she can at once say, "I am not a compellable witness, and I will not give evidence," although she might give evidence which would acquit the husband. Now, I do hope that my honourable Friend will not press: this Amendment to a Division, because it seems to be manifestly unfair to the prisoner.
§ The House divided:—Ayes 49; Noes 198.—(Division List No. 239.)
725| AYES. | ||
| Allen, W. (Newc.-und-Lyme) | Holburn, J. G. | Samuel, J. (Stockton-on-Tees) |
| Atherley-Jones, L. | Holden, Sir Angus | Schwann, Charles E. |
| Bolton, Thomas Dolling | Horniman, Frederick John | Sidebotham, J. W. (Cheshire) |
| Bowles, T. G. (King's Lynn) | Kearley, Hudson E. | Sinclair, Capt J. (Forfarsh.) |
| Brigg, John | Langley, Batty | Steadman, William Charles |
| Broadhurst, Henry | Lewis, John Herbert | Sullivan, Donal (Westmeath) |
| Caldwell, James | Lough, Thomas | Tennant, Harold John |
| Cameron, Robert (Durham) | Macaleese, Daniel | Thomas, A. (Glamorgan, E.) |
| Cawley, Frederick | Maddison, Fred | Williams, John C. (Notts) |
| dough, Walter Owen | Mandeville, J. Francis | Wilson, John (Govan) |
| Crilly, Daniel | Norton, Capt. Cecil Wm. | Wilson, J. H. (Middlesbro') |
| Curran, Thos. (Sligo, S.) | Pickersgill, Edward Hare | Woods, Samuel |
| Daly, James | Power, Patrick Joseph | Yoxall, James Henry |
| Dalziel, James Henry | Price, Robert John | |
| Doogan, P. C. | Richards, Henry Charles | TELLERS FOR THE AYES— |
| Duckworth, James | Rickett, J. Compton | Mr. Samuel Evans and Mr. |
| Duncombe, Hon. H. V. | Roberts, John Bryn (Eifion) | Hedderwick. |
| Farquharson, Dr. Robert | Robson, William Snowdon | |
| NOES. | ||
| Arnold, Alfred | Chamberlain, Rt.Hn. J.(Birm.) | Dunn, Sir William |
| Arrol, Sir William | Chamberlain, J. A. (Worc'r) | Fellowes, Hon. Ailwyn E. |
| Asher, Alexander | Charrington, Spencer | Fergusson,RtHn. Sir J. (Manc'r) |
| Asquith, Rt. Hon. Herbert H. | Clare, Octavius Leigh | Field, Admiral (Eastbourne) |
| Atkinson, Rt. Hon. John | Clark, Dr. G.B.(Caithness-sh.) | Finch, George H. |
| Bailey, James (Walworth) | Clarke, Sir E. (Plymouth) | Finlay, Sir Robert B. |
| Baird, John George Alex. | Cochrane, Hn. T.H.A.E. | Fisher, William Hayes |
| Balcarres, Lord | Coghill, Douglas Harry | Flannery, Fortescue |
| Balfour, Rt.Hn. A. J.(Manc'r) | Cohen, Benjamin Louis | Flower, Ernest |
| Balfour, Rt.Hn. G. W. (Leeds) | Collings, Rt. Hon. Jesse | Folkestone, Viscount |
| Balfour, Rt.Hn. J.B.(Clackm.) | Colston, C. E. H. Athole | Forwood, Rt. Hon. Sir A. B. |
| Banbury, Frederick George | Cooke, C. W. R. (Hereford) | Foster, Colonel (Lancaster) |
| Barton, Dunbar Plunket | Cornwallis, Fiennes S. W. | Foster, Harry S. (Suffolk) |
| Bathurst, Hon. Allen B. | Cotton-Jodrell, Col. E. T. D. | Fowler, Rt. Hon. Sir H |
| Beach,Rt.Hn. SirM.H. (Bristol) | Cox, Robert | Garfit, William |
| Bethell, Commander | Cozens-Hardy, Herbert H. | Gedge, Sydney |
| Bhownaggree, Sir M. M. | Cranborne, Viscount | Gibbons, J. Lloyd |
| Blundell, Colonel Henry | Cripps, Charles Alfred | Gibbs, Hn.A.G.H.(C.ofLond.) |
| Boscawen, Arthur Griffith- | Cross, Alexander (Glasgow) | Giles, Charles Tyrrell |
| Brodrick, Rt. Hon. St. John | Cubitt, Hon. Henry | Gilliat, John Saunders |
| Brunner, Sir John Tomlinson | Curzon,RtHn.G.N.(LancsSW) | Gladstone, Rt. Hon. H. J. |
| Bucknill, Thomas Townsend | Curzon, Viscount (Bucks) | Godson, Sir Augustus F. |
| Bullard, Sir Harry | Dalkeith, Earl of | Gorst, Rt. Hon. Sir John E. |
| Carlile, William Walter | Dalrymple, Sir Charles | Goschen, G. J. (Sussex) |
| Cavendish, R. F. (N. Lancs) | Davies,M.Vaughan-(Cardigan) | Graham, Henry Robert |
| Cavendish V. C.W. (Derbysh.) | Dickson-Poynder, Sir J. P. | Gray, Ernest (West Ham) |
| Cecil, Evelyn (Hertford, E.) | Disraeli, Coningsby Ralph | Gull, Sir Cameron |
| Chaloner, Captain R. G. W. | Douglas, Rt. Hon. A. Akers- | Hall, Sir Charles |
| Hamilton, Bt. Hon. Lord G. | McArthur, Wm. (Cornwall) | Seton-Karr, Henry |
| Hanbury, Rt. Hon. R. W. | McCalmont,Mj.Gn.(Ant'm,N-) | Shaw-Stewart, M.H. (Renfrew) |
| Hardy, Laurence | McKillop, James | Sidebottom, Wm. (Derbyshire) |
| Harwood, George | Maden, John Henry | Simeon, Sir Barrington |
| Hazell, Walter | Malcolm, Ian | Sinclair, Louis (Romford) |
| Heaton, John Henniker | Mendl, Sigismund Ferdinand | Smith, A. H. (Christchurch) |
| Helder, Augustus | Milbank, Sir Powlett C. J. | Spicer, Albert |
| Hemphill Rfc Hon C H. | Mildmay, Francis Bingham | Stanley, Lord (Lancs) |
| Henderson, Alexander | Monk, Charles James | Stanley, E. J. (Somerset) |
| Hermon-Hodge, Robert T. | Moon, Edward Robert Pacy | Stevenson, Francis S. |
| Hoare, Samuel (Norwich) | Morgan, Hn. F. (Monm'thsh.) | Stock, James Henry |
| Howell, William Tudor | Morrell, George Herbert | Stone, Sir Benjamin |
| Jebb, Richard Claverhouse | Morton, A. H. A. (Deptford) | Strauss, Arthur |
| Johnston, Wm. (Belfast) | Muntz, Philip A. | Strutt, Hon. Charles H. |
| Jones, Wm. (Carnarvonshire) | Murray, Rt. Hn. A. G. (Bute) | Sturt, Hon. Humphry Napier |
| Kemp, George | Murray, C. J. (Coventry) | Thomas, A. (Carmarthen, E.) |
| Kenrick, William | Murray, Col. W. (Bath) | Thorburn, Walter |
| Kenyon-Slaney, Col. Wm. | Myers, William Henry | Thornton, Percy M. |
| King, Sir Henry Seymour | Newdigate, Francis Alexander | Tomlinson, W. E. Murray |
| Lafone,, Alfred | Nicol, Donald Ninian | Tritton, Charles Ernest |
| Laurie, Lieut.-General | Northcote,, Hon. Sir H. S. | Walton, J. L. (Leeds, S.) |
| Lawrence, Sir E. D. (Cornw'll) | Parkes, Ebenezer | Walton, Joseph (Barnsley) |
| Lawson, John G. (Yorks) | Philipps, John Wynford | Webster, R. G. (St. Pancras) |
| Lawson, Sir W. (Cumb'land) | Phillpotts, Captain Arthur | Webster, Sir R. E. (I. of W.) |
| Leigh-Bennett, Henry C. | Pirie, Duncan V. | Wentworth, B. C. Vernon- |
| Leuty, Thomas Richmond | Pollock, Harry Frederick | Whitmore, Charles Algernon |
| Llewellyn, E. H. (Somerset) | Powell, Sir Francis Sharp | Williams, Col. R. (Dorset) |
| Lockwood, Lt.-Col. A. R. | Provand, Andrew Dryburgh | Williams, J. Powell (Birm.) |
| Loder, Gerald Walter E. | Rasch, Major Frederic Carne | Willox, Sir John Archibald |
| Long, Col. C. W. (Evesham) | Reid, Sir Robert T. | Wilson, J. W. (Worc'sh., N.) |
| Long, Rt. Hn. W. (Liverpool) | Rentoul, James Alexander | Wilson-Todd, W. H. (Yorks) |
| Lopes, Henry Yarde Buller | Richardson, Sir T. (Hartlep'l) | Woodhouse,SirJT(Hudd'rsf'ld) |
| Lowe, Marquess of | Ridley, Rt. Hon. Sir M. W. | Wortley, Rt. Hn. C. B. Stuart- |
| Lowe, Francis William | Robertson, H. (Hackney) | Wyndham, George |
| Lowles, John | Roche, Hon. J. (E. Kerry) | |
| Lucas-Shadwell, William | Royds, Clement Molyneux | TELLERS FOR THE NOES— |
| Macartney, W. G. Ellison | Russell, T. W. (Tyrone) | Sir William Walrond and |
| Maclure, Sir John William | Rutherford, John | Mr. Anstruther. |
| MacNeill, John Gordon S. | Ryder, John Herbert D. | |
| McArthur, Chas. (Liverpool) | Samuel, H. S. (Limehouse) |
§
Amendment proposed—
Page 1, line 14, leave out 'adverse.'"— (Mr. Gibson Bowles.)
MR. GIBSON BOWLESI think if there is to be an absence of any kind of comment there ought to be an absence of all kinds, and the prosecution should not be allowed to make any comment upon the evidence, even, of a specified kind. I think there should be no comment at all, because once you leave the door open for comment of one kind, such is the ingenuity of the gentlemen of the law that they would be able to make comment of other kinds. I do not think that the Government propose to leave open to the prosecution, to take advantage of this by making adverse comments. I hope and trust that they will accept this Amendment.
§ SIR R. FINLAYThis will not interfere with our object, and I have no objection to leave out the word.
§
Question put—
That the word 'adverse' be omitted.
§ Agreed to.
§
Amendment proposed—
Page 1, line 24, after 'asked,' insert 'but if asked shall not be required to answer.'"—(Mr. Gibson Bowles.)
MR. GIBSON BOWLESSurely there is a very strong case for setting up, as I propose to do, that a person, in the first place, who is an entirely new kind of witness, and who is brought before the court under entirely new circumstances, when he is asked a question which would tend to criminate him as to the offence with which he is charged, should be in a position to refuse to answer. Why, it is one of the cardinal principles of the English law that a man 727 is not bound to incriminate himself. As the clause stands it says—
A person charged, and being a witness, in pursuance of this Act, may be asked any question in cross-examination, notwithstanding that it would tend to criminate him as to the offence charged.Sir, I have no objection to asking a question when it has any possible conceivable effect, and you should not introduce such a principle as this in the enactment of a new Statute, and I should strongly object to any obligation on the part of the prisoner to answer such questions. There has been a doubt expressed as to the effect of the previous clause, and therefore, in order to remove any possible doubt as to the effect of this subsection, I propose to move this Amendment.
§ SIR R. WEBSTERThis matter was very carefully discussed upon a previous occasion, and I do not think that this Amendment offers any effective protection to the witness at all. It is absolutely necessary in regard to our scheme, and its successful working, that you should be allowed within certain limits to cross-examine the witness, and therefore you must be allowed to ask these questions.
§ Amendment, by leave, withdrawn.
§
Amendment proposed—
Page 1, lines 24 and 25, leave out 'notwithstanding that it,' and insert 'the answer to which.'"—(Mr. Gibson Bowles.)
§ SIR R. WEBSTERI assure the honourable Gentleman that I shall be very glad to accept any drafting Amendments which will have the effect of improving the Bill, but I do not think that this Amendment will have such an effect.
§ Amendment, by leave, withdrawn.
728
§
Amendment proposed—
Page 1, line 27, leave out sub-section (f) to the end, page 2, line 10."—(Mr Gibson Bowles.)
Mr. GIBSON BOWLESNo, no! This is a very important matter. This subsection (f), with its sub-clauses 1, 2, and 3, is the sub-section which puts into the Bill what I cannot but consider is a most useless proviso and safeguard to the cross-examination of these new witnesses. The existence of this sub-section is a proof that the Government have felt that the bringing of a man into court under these circumstances is not one which can be approached without very serious and substantial modifications. I am perfectly certain they intended to safeguard the person charged as well as they could by the proviso put down. It will not have escaped the attention of the House that I did put down an Amendment prohibiting the cross-examination of these new witnesses, and that I withdrew that Amendment. I feel that as soon as you get witnesses in the box, whether it is the prisoner, the wife, or the husband of the prisoner, it will be found extremely difficult to avoid cross-examination. I call the attention of the House to this clause—
A person called as a witness, in pursuance of this Act, shall not be asked, and, if asked, shall not be required to answer any question tending to show that any person charged hat committed, or been convicted of, or been charged with any offence other than that wherewith he is then charged, or is of bad character.That is the first proviso, and you are not to ask that witness any question as to any other offence. Then you coma to this proviso—Unless the proof that he has committed, or been convicted of, such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged.In that case you may ask him a question. The clause proceeds—If the person charged, or his advocate, on his behalf, has asked questions of the witnesses for the prosecution, with a view to establish his own good character, or called witnesses to his good character, or otherwise has given evidence of good character.729 The whole character of the evidence is as to whether he did or did not commit the offence with which he is charged, and whether he has been convicted or charged with another offence, that question is to be thrown over. Then again—If the person charged and called as a witness has given evidence against any other person charged with the offence with which the prisoner is charged.If the person has given any evidence against any other person charged with the same offence, then, again, you open the whole category as to whether he has committed, or been convicted of, or been charged with some other offence which is not the offence then in question, but an entirely different offence. I do beg the House to observe the extraordinary limitation which these words make, and I venture to think that due consideration of this clause will show the extreme difficulty of its effective working under the Bill as it is proposed. I, Sir, think that you must call the prisoner, and the prisoner's wife or husband, as the case may be, and you must cross-examine them as a whole, as other witnesses are cross-examined, or else not call them at all. That has been the effect of the English law for many centuries. I do say, Sir, that this throws a very considerable light on the whole subject dealt with by the Bill, and in my opinion it is one of the most important parts, and the most crucial part of the Bill. It undoubtedly does represent an honest attempt on the part of the Government to deal with what they feel themselves to be the very serious difficulties with which the new system is indeed bound up, and I do not think they meet the difficulties by these limitations in a satisfactory manner. You should either not call a prisoner, wife, or husband at all, or, if you do, they should be subjected to the ordinary system of cross-examination. These, Sir, are the reasons for which I present this Amendment to the notice of the House, because I am convinced that by these provisoes, limitations, and fencing of cross-examination, they will be in practice found impossible to be observed, and the unfortunate prisoner, or his wife, or husband, as the case may be, in the hands of an able counsel, may be forced to make admissions which will in effect bring 730 about his conviction for the offence with which he is charged. This Amendment is a very important one, for it does raise a crucial question on the whole Bill, which is a very proper and necessary one. I therefore beg leave to move this Amendment.
§ SIR R. WEBSTERI do not want to lengthen this Debate by any discussion of this kind. I desire simply to point out to the House that we could not in good faith accept the striking out of this sub-section. It may be right, or it may be wrong, to introduce some of these limitations, and have these protections for cross-examination, but opinion is divided on the subject. We have, on the Second Reading and at the Committee stage, preferred not to allow cross-examination that was not necessary in order to bring out the guilt, or to establish the innocence so to speak, of the person charged. But, Sir, we have thought it right to maintain in this clause those safeguards which would protect the prisoner and persons charged from that class of cross-examination which has been brought sometimes as an objection against allowing a prisoner to give evidence, and we have inserted such safeguards as will confine it to its proper limits, unless the prisoner has so conducted his defence as to defeat this object. I do not think that the House will wish for any further explanation.
§ MR. S. EVANSSir, with a great deal of the speech of the honourable Member I agree. I think it is a mistake to allow a prisoner to be cross-examined by counsel with regard to the whole of his previous history. There was one case which was very striking, a case in which a man was tried, found guilty, and sentenced to seven years' penal servitude for criminal assault; a case in connection with which a police-constable was afterwards indicted for perjury. The prisoner, as I said, gave his evidence, and at a period of his cross-examination he was asked as to his previous character. He gave his evidence so well that there was tremendous applause in court when he "floored" the advocate, but one of the next questions put in cross-examination by counsel was this: "Twenty years ago did you live in Ireland?" to which he 731 replied, "Yes!" "Were you prosecuted in Ireland?"—and he asked the judge was he bound to answer that question, and, being told that he was so bound, he replied that he had been prosecuted. The next question was: "Were you convicted and sentenced to seven years' penal servitude?" and the answer was "Yes." Sir, from that point forward there was no chance of that man's oath being believed. Can it be said that it was fair to allow the whole of that man's testimony to be destroyed entirely, merely because, 20 years before, he had served a term of penal servitude? It shows the danger of allowing cross-examination which is irrelevant to the issue.
§ MR. ABEL THOMASI would point out to the honourable Member that it is obvious that sub-section (f) has been inserted for the protection of the person called, and anyone who understands the law will not want to have it omitted.
§ Amendment, by leave, withdrawn.
§ SIR R. WEBSTERSir, I beg to move—
Page 1, line 27, after 'person,' to insert 'charged and.'The sub-section as it stands is to the effect that a person charged and called as a witness will not be asked, and, if asked, shall not be required to answer, any question tending to show that he had committed or been convicted of any offence other than that wherewith he was then charged or was of bad character, unless he had personally, or by his advocate, asked questions of the witness for the prosecution with a view to establish his own good character, or had given evidence of his good character, or the nature and the conduct of the defence had been such as to involve imputations on the character of the prosecutor or the witness for the prosecution. There are certain offences which are only offences if the person charged has been guilty of a previous offence.
§ The Amendment was agreed to.
732§ SIR R. WEBSTERI beg to move—
Page 1, line 29, to leave out 'any person charged,' and insert 'he.'The Amendment was agreed to without discussion.
§ MR. PICKERSGILLMr. Speaker, after line 31 I proposed to insert the words "or misconduct." A question might be put to the prisoner relating to misconduct not amounting to a breach of the criminal law, which might be prejudicial to him. Supposing a prisoner is charged with an offence against a girl of 16; it would be quite competent for counsel to ask him questions with reference to offences with women. If we allow this sub-section to pass as it is now drawn we will for the first time be letting in evidence to criminal proceedings, tending to show that the person charged is a likely person to commit the crime. I am sure the Attorney General will give the suggestion which I have made his earnest consideration, because I do not think there can be any real objection to add the words I have proposed.
§ SIR R. WEBSTERI confess that I have not carefully considered this Amendment, as it was not on the Paper, but it seems to me obvious that these words will not carry out the intention of the honourable and learned Gentleman. You cannot exclude the cross-examination of a prisoner in respect of "misconduct," because a man is not charged or convicted of "misconduct," but of "an offence." What the honourable and learned Gentleman means by "misconduct," as distinguished from an "offence," would be covered by the later words, "or is of bad character."
§ MR. PICKERSGILLI do not see the force of the right honourable Gentleman's criticism. [Cries of "Order!"] Surely, Sir, I may ask the indulgence of the House—
§ *MR. SPEAKERThe honourable and learned Gentleman is not entitled to a reply. I feel bound to call the attention of the House to the practice which is growing up—I do not mean to refer to the honourable and learned Member in 733 particular—but undoubtedly the practice seems to be growing up of honourable Members asking, as a matter of course for indulgence to speak again on tin same Amendment on the Report stage. Obviously that is a practice which would tend to make the Report stage a second Committee stage.
§
Amendment proposed—
Page 1, line 31, after the word 'offence,' insert the words 'or misconduct.'"—(Mr. Pickersgill.)
§
Question put—
That the words 'or misconduct' stand part of the clause.
§ Put and negatived.
§
Amendment proposed—
Page 2, line 3, after 'has.' insert 'personally, or by his advocate.'"—(The Attorney General.)
§ Agreed to.
§
Amendment proposed—
Page 2, lines 5 and 6, leave out 'or called witnesses to his good character.'"—(The Attorney General.)
§ Agreed to.
§
Amendment proposed—
Page 2, line 6, leave out 'otherwise.'"— (The Attorney General.)
§ Agreed to.
§
Amendment proposed—
Page 2, line 7, after 'of,' insert 'his.'"—(The Attorney General.)
§ Agreed to.
§
Amendment proposed—
Page 2, line 7, after 'character,' insert ' or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution.'"—(The Attorney General.)
§
Question proposed—
That those words be there inserted.
§ MR. ABEL THOMASI remember that there was a discussion upon these or similar words some time earlier in the 734 passage of this Bill, and I am afraid I may, to some extent, have to repeat what was said then. I quite understand that at the time the words which were objected to were withdrawn for the purpose of the right honourable Gentlemen who were in charge of the Bill considering whether or not they would consent to the proposal that was then made. Now I am strongly in support of this Bill, and the only part of it that I object to, as it has come before us, is these words. I really do think that we are introducing a change, a very, very grave change, in the course of our criminal procedure. Hitherto a person charged with a crime may cross-examine any witness in any way he or his counsel likes in regard to the witness's character, but no person is entitled to show in consequence that the prisoner who is charged has himself been guilty of previous offences. The effect of this Amendment is this. In some instances I quite agree that the want of these words may bear hardly upon the persons who are prosecuting, but that is always so. In every charge that is made at the Bar there is always the possibility that the prosecutor or the prosecutrix may be himself or herself injured by charges that are made against him or her, but surely a change of such a grave nature as is proposed here ought not to be made in a Bill of this character. This Bill is intended to give relief to the prisoner. It is not intended to put him in any worse position than he is now in, but the effect of the Amendment would be this. Suppose a man were charged with an offence against a woman of a notoriously bad character. I will take the instance given by my honourable and learned Friend the Member for Mid Glamorgan, because I was engaged with him in that very case and know all about it. Suppose that man had been charged with an offence 20 years ago, when he was a boy. If his counsel asked the prosecutrix whether she was not a woman of bad character, and whether she had not made false charges against one, two, three, or a dozen men, immediately thereupon the prosecuting counsel would be entitled to prove that this man, who then was an old man, had been guilty 30 or 10 years back of a similar offence against some other person. It seems to me that it would be monstrously unjust that that 735 should happen, and I hope that, as the learned Attorney General said he would consider these words, he will still feel that without injuring his Bill in any shape or form, he can omit this Amendment to it. I am quite sure that in some instances it will be a great injustice to the prisoner, although in some instances I admit that it may turn out to be some injustice to the prosecutor or prosecutrix. But, after all, as this Bill has been expressly stated to be in favour of the prisoner and not against him, I do suggest that we should not, by a clause of this kind, after the present law of our country against the prisoner and not in his favour.
MR. S. EYANSI do not see, if we are going to carry out the scheme of this Bill, how we are to omit these words altogether. These words are extremely vague words, and I desire to limit them in one sense. The words are—
The nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution.Now I desire to call the attention of the Attorney General and Solicitor General to what would be the effect of those words. The effect would be that you could not cross-examine at all without letting in the dangers which the Government desire to avoid, because every cross-examination must be, to some extent, a cross-examination as to a person's credibility. Immediately you attack the credibility of the witness, you make an imputation upon his character. If you suggest that a witness is telling an untruth you make an imputation upon his character of the crime of perjury. You also make an imputation upon his character if you suggest that he is not telling the whole truth; he may not be actually committing perjury by swearing what is untrue, but he may be keeping something back. I suppose the object of the Government is, that where the defence really is an imputation upon the character of the prosecutor or prosecutor's witnesses, the defence ought to be able to turn the tables on the prosecution; but we should take care that we do not spoil cross-examination altogether. I accept gratefully, for my part, the Amendments that have been made by the Government in this 736 sub-section as foreshadowed by the-Attorney General during the Committee stage, and I make my present suggestion entirely in a friendly spirit. I suggest that after the word "imputation" we should insert—Or nature or conduct of the defence is such as to involve imputations not merely of want of credibility, but also imputations on the general character of the prosecutor or the witnesses for the prosecution.That would safeguard the right of the advocate for the defence to attack the credibility qua the particular charge of the witnesses for the prosecution, and it would also enable the prosecutor to turn the tables on the defendant where he was making a wholesale attack upon the prosecutor. The words I suggest are sufficient I think to carry out the objects of the Government, and the words of the Government without some such limit would practically destroy cross-examination altogether.
§ SIR R. FINLAYI think the honourable and learned Member for East Carmarthen has rather forgotten the subject with which we are dealing in this subsection. We provide that the accused can be called as a witness. Now, when a man is called as a witness he is primâ facie subject to cross-examination, but we have thought it right to protect a prisoner in this way, and we have said generally that he shall not be liable to cross-examination as to previous convictions or as to bad character. But it is obvious that there must be some exceptions to such protection. It is admitted by my honourable and learned Friend who has just sat down that one of these exceptions must be where the nature of the defence is such as to involve an attack on the character of the prosecutor and the witnesses for the prosecution as a whole. Suppose there is a charge of conspiracy against the witnesses for the prosecution, or that a charge is against the prosecutor himself. Take a case of libel, where the defendant puts in a plea of justification, and pleads that it was for the public benefit that the facts should be known. In such a case the prosecutor may stand even more in need of protection than the accused; and similarly in cases of assault and other cases into which it is not necessary now 737 to enter. I do put it to my honourable and learned Friend that it would be simply monstrous that a defendant should have liberty through his counsel, or by himself, to scatter accusations wholesale on the prosecutor and the witnesses for the prosecution, and to pose before the world as an injured man, and perhaps to obtain an acquittal which may blast the character of the prosecutor for life, whereas, if it were known what the character of the defendant was, things would have appeared in their true proportions before the jury, and the prosecutor would have escaped the doom which a verdict of acquittal would mean. It has been suggested that perhaps questions might be asked as to what the accused had done 20 years before. Now I think that the House may be perfectly confident that such questions would not be asked, and for this reason, that they would not in the least help the case for the prosecution. If questions were asked as to what happened 20 years before, during the boyhood of the prisoner, it would create a reaction in favour of the accused on the part of the jury, and the only questions which any competent advocate would think of asking would be questions which would really tend to show what sort of man the accused really was in order to enable the jury to judge between him and the prosecutor, whose character he had attacked. With regard to the suggestions made by my honourable and learned Friend who has just sat down. I would submit this to him. I know his object is to improve the subsection upon this point, but I submit to his consideration that his words would hardly do, because a charge of want of credibility against a prosecutor and his witnesses might be the most serious charge that could be brought forward. It will not do to say "I merely say that the prosecutor and his witnesses are not to be believed." It all depends upon whether you allege that the prosecutor and his witnesses are mistaken, or whether you say that they are wilfully misleading the court and the jury. If the prisoner says merely that they are mistaken, the words suggested by my honourable and learned Friend will not be satisfied, because that is making no imputation on the witness. If on the other hand he says that they are 738 coming forward wilfully to swear what is false, that is making an imputation of a most serious character, and I submit that the prosecutor in fairness should be afforded the opportunity of showing what manner of man it is who sets up such a case. My honourable and learned Friend suggests the words—
not merely of want of credibility, but also an imputation on the general character.Are not those words somewhat too indefinite? I submit that the words that the Government have selected adequately carry out the opinion which the House expressed when this subject was under consideration. I admit that in reply to some observations made on the other side, I said on the Committee stage that the whole of this matter would receive careful consideration with a view to carry out what was the true intention of the clause. That we have done, and the object of the words now before the House is this, that if the whole nature and conduct of the defence is such as to involve an attack on the prosecutor or his witnesses, it ought to be open to the prosecution to show the jury what manner of man it is who attacks other people in this way. The only question is, which is the best form of words to carry out that object? I submit to all my honourable and learned Friends that the words the Government have proposed are adequate for the purpose. It would be difficult or impossible to select words which should deal more satisfactorily, I think, with a subject which I admit is somewhat difficult of definition, but if they were left out, or seriously mangled, it would be a very great blot upon the Bill which might lead to a serious injustice.
§ MR. ATHERLEY-JONES (Durham, N.W.)I entirely agree with my honourable and learned Friend the Member for East Carmarthen in his view of the proposed clause. The present state of the law is this. A witness comes forward to give evidence against a prisoner; he may be cross-examined as to his credibility to the extent of establishing the fact that he has previously been convicted of some most abominable offence, perjury, and so forth. The prisoner's character remains absolutely untouched. It is to be assumed (I am speaking now of the present law) that the prisoner is 739 a perfectly guiltless man, so far as any other crime is concerned. Now, what alteration is made? The prisoner is allowed to go into the witness-box, but he is not allowed to say a solitary word about his previous character, and that is very just; all he can do is to depose to the facts immediately connected with the charge made against him. Why, then, I ask, if that be so, if the prisoner is only able to depose as to facts immediately associated with the charge which is made against him, why, because he has directed questions to a witness for the prosecution, is he himself to be exposed, to have the whole of his previous character laid bare? I am utterly at a loss to conceive any sound reason for any such complete change in the law. One can conceive a witness for the prosecution held up to scorn as a person whose word cannot be believed, while the prisoner in the dock is a person of equally bad character, but the law at the present time permits that state of things. Why should the law be changed? Why should you now compel the character of the prisoner to be disclosed, whereas you do not permit it to be disclosed at the present time, simply because you have permitted the prisoner to give evidence as to the facts of the particular case? Now what is the danger? The danger appears to me obviously to be this, that no counsel for the defence will feel that he has any freedom whatever in putting questions as to the credibility of a witness. I imagine myself for a moment in the position of a defending counsel; I know that my unfortunate prisoner has been previously convicted, and if I venture to ask one single question of the witness for the prosecution, to show that he is a man whose story the jury should not credit, then I am obliged to expose my unfortunate client to be cross-examined as to his antecedents. Now, what we are attempting to do is to make a compromise between the condition of things which obtain under the present law and the condition of things which is to obtain under the proposed Act. You are going now to submit the prisoner to an ordeal of cross-examination as to the facts of the case, and then, if forsooth he through his counsel cross-examines a witness against him, to show that that witness is not to be believed, then you are going 740 to ask the jury to convict this man, not because the evidence of the facts is conclusive, but because you show that the man in the dock is just as bad as the man in the witness-box. That is a monstrous proposition, and I for my part confess that I think there is no compromise possible on these lines. I think that if a counsel in his discretion for the benefit of his client thinks it right to put questions as to the credibility of a witness, he should not be exposed to the necessity of having to submit his client to cross-examination also. I am sure that it will never be possible for counsel to cross-examine a witness as to his credibility, because he will have hanging over him the sword of Damocles, that he is obliged to submit his own client to cross-examination.
MR. GIBSON BOWLESOne of our difficulties in discussing this Bill lies in the varying nature of the sympathies of Her Majesty's Government. At one time their sympathies are all with the prisoner; at another their sympathies are all for the prosecutor; and the Solicitor General draws a melancholy picture of an unfortunate prosecutor who is exposed to attack by the prisoner. I confess that of the two my sympathies are with the prisoner. I will not say I am sportsmanlike, because that would be a trivial word to use, but I think it is in accordance with our national traditions to feel sympathy with the hunted man, the man in the dock fighting for his life. Now let the House observe the novelty of this position. The practice of the English law has been this, that when a man is accused of a criminal offence the whole onus of proving that he is guilty lies on the prosecution. Then what is the defence of the prisoner? Practically his only defence is to break down the prosecution by showing that the witnesses for the prosecution are not credible persons. If you deny to the prisoner the right of making such imputations on the prosecution as tend to show that the prosecutor and his witnesses are unworthy of belief, whatever else you may do, you absolutely deprive the prisoner of all chance of acquittal. It seems to me that the only way he has of disproving the charge against him is by showing that the prosecutor and his witnesses are disreputable persons. That has been 741 the method of defence in this country for one hundred—I believe I might say for a thousand years, and you are now going to change it. Out of this tenderness for the prosecutor you are going to say that the defence must not adopt a line involving imputations on the prosecutor or his witnesses. I know perfectly well that this proposal is made perfectly in good faith on the part of the Government, and with the desire to make this Bill work, but it seems to me that this proposition is altogether indefensible. What is character? Is credibility character? I believe that some learned lawyers hold that you may attack a man's credibility and leave his character untouched. I believe that credibility is the essence of character; you cannot attack a man's credibility without attacking his character. What should we think even of an Attorney General who was learned in the law, who was not to be believed? What should we think of a man who was politically blameless, but whose word we could not trust? I repeat that it seems to me impossible that you can attack a man's credibility without attacking his character. If I am not to attack the credibility of a witness, where am I? I am accused of some offence against the criminal law. The only defence that will be left to me, if this proposition is adopted, and I am prevented from breaking down the credibility of the witnesses for the prosecution, is the defence of an alibi, which is usually held to be a most dangerous line of defence. Now, I am not here to compete with lawyers in the drafting of Amendments in a Bill of this description, and therefore I do not pledge myself to the exact wording of what I am about to suggest. But I think we might adopt some such, words as these—
Unless the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, excepting imputations tending to show the prosecutor or the witnesses to be unworthy of belief.I do not venture to move that as an Amendment, because I am not sure enough of the words; but although I am not desirous in the least of standing in the way of the progress of this Bill I am bound to say that if this proposition of the Government is carried to a Division I shall feel bound to vote against it. 742 I trust Her Majesty's Government, at this eleventh hour, will consider whether even now they cannot suggest a better form of words which will safeguard the right of the prisoner to break down the credibility of the witnesses called against him.
§ MR. ROBSON (South Shields)I do not think anybody can deny that the Attorney General has here made a very careful and, if I may say so, a conscientious effort to remove one of the worst blots on the Bill, but he will forgive my saying that what he has proposed certainly does not appear to me, in its strict construction, to obviate the mischief which is feared. The existing state of the law is this, that man whom the community charges with some offence, and who is put upon trial for his life, or his liberty, is to have given to him the privilege—a privilege not given to an ordinary litigant in a civil cause—of being assumed to be innocent until he is proved guilty, and he is not to be put under the disability of having his cross-examination of the prosecutor in any degree hampered. That is one of the ancient privileges of our Constitution, and one that has done much to bring the administration of our law into the respect of the people. All that is proposed now to be altered. A prisoner is now not to have an unrestricted right of cross-examination except on. terms which subject him to having the whole of his previous career dragged out into the light of day. That, Sir, is a very serious matter. I venture to ask the House to look at this matter not from the point of view of the prisoner, but from the point of view of public opinion. I venture to think that the administration of the English law has secured the respect of the English people, and, above all, the respect of the poorer classes of the English people, to a degree absolutely unknown in any other country in the world; I go further and say that there is, perhaps, no feature of our national character, there is none of our distinctive institutions of which we, as Englishmen, may more justly be proud than the way in which our criminal law is respected by those persons to whom it is most frequently applied. What is the secret of that respect? Simply and solely that we do not torture the prisoner. We put a man upon his trial, and instead of treating him as a detective would 743 treat a suspected criminal we give him every protection possible in the position in which he is placed. That fact has impressed in the minds of the English people a belief in the impartiality of our law, which I think is one of the most valued possessions of Englishmen. Now, the learned Attorney General has chosen words so vague as to bring the Amendment to this, that if a prisoner or his counsel exercises his right of cross-examination as to the character of the witnesses for the prosecution, he lays himself open to cross-examination as to his own character. That I think is a fair construction of the clause. I hope the House will hesitate before it gives up this distinctive feature of our law, that a man's previous character shall not be brought up until the verdict is given. I venture again to press on the Attorney General and Solicitor General the necessity for some Amendment of the wording of their Amendment. I confess I feel the difficulty of selecting any proper words. In dealing with the words suggested by my honourable and learned Friend below the Gangway, the Solicitor General said that he thought they were very vague and very general. So are the words that are now proposed. They are so vague and general that it is very difficult to amend or qualify them except by words of the same character. However, as my honourable and learned Friend is not able to move the words which he has suggested, because he has lost his right to speak, I propose to move these words, which I commend to the consideration of the House as being, if not adequate, yet as certainly removing in some degree the mischief of the words proposed by the Attorney General. The Amendment will be as follows:—
The nature or conduct of the defence is such as to involve imputations, not merely of want of credibility, but also imputations in the general character of the prosecutor or the witnesses for the prosecution.Those are the words which were suggested by my honourable and learned Friend, the Member for Glamorgan. I need scarcely say that I feel the difficulty of words of such a vague and general character as these, but I think the fault lies not with the words I am suggesting, but rather with the words in the Bill, because they are very vague and unsatis- 744 factory, and certainly the words I now suggest would diminish in some degree the mischief which we are all desirous of seeing removed.
§
Amendment proposed to the proposed Amendment—
Line 2, after the word 'imputations,' to insert the words 'not merely of want of credibility, but also imputations on the general.'"—(Mr. Robson.)
§
Question proposed—
That the words be inserted in the proposed Amendment.
§ THE FIRST LORD OF THE TREASURYSo many suggestions have been made that I am really almost afraid to make a suggestion of my own. As I understand it, the objections raised by my honourable Friend the Member for King's Lynn to the words that stand on the paper are these: he says if the defendant attacks the veracity of the witnesses against him in this particular trial, that is an attack upon their character, and being an attack upon character it lays the prisoner open to all the difficulties and all the dangerous results which might follow from a general cross-examination of his own character. I venture to suggest this modification of the words on the Paper—
Or the nature or conduct of the defence is such as to involve imputations on the character or general credibility of the prosecutor or the witnesses for the prosecution.That I think would clearly indicate that a mere attack upon the veracity of the witnesses for the prosecution, divorced from a general attack upon character, would not open the door to a general cross-examination of the prisoner's character; and again it would protect the witnesses against the prisoner from am attack upon their general character.
§ *MR. SPEAKERDoes the honourable and learned Member for South Shields accept that suggestion?
§ MR. ROBSONI am afraid I cannot, Sir.
MR. GIBSON BOWLESI am very loth to trespass again upon the House, but I really think that this suggestion of my right honourable Friend the Leader of the House, hardly meets the case. I 745 am perfectly conscious that he is desirous to meet the objections to the clause as it at present stands, and I am extremely grateful to him. I do not think the words he proposes, "general credibility," would do, because that would imply that you may make an imputation of special credibility—if I may put that in antithesis—but you are not to make imputations upon general credibility. My point is this. Suppose a man is convicted of perjury, and he brings a charge of perjury against me; I have no witnesses; the only witness perhaps is myself; surely the main part of my defence is to prove that he has committed perjury. That would affect his general credibility, and also his special credibility. I think the onus of proof must lie on the prosecutor, and it must be left to me to break down the credibility of witnesses if I can. I cannot cut up the credibility into two credibilities; I think that is practically impossible. Sir, I rise again to make the alternative suggestion which I made before—namely, after the words—
Or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecutionto insert the words—Excepting imputations tending to show that the prosecutor or the witnesses for the prosecution is or are unworthy of belief.That, I submit, is what I, the prisoner, am entitled to show; it is probably the only thing that stands between me and the gallows. It might mean the life or the death of a prisoner to show that. I do not want to enable the prisoner to make a malicious attack on the character of the prosecutor or his witnesses: I want to enable the prisoner, if he is in a position to do so, to sap the foundation of the case made against him. I trust the right honourable Gentleman the Attorney General will see his way to adopt my suggestion.
§ MR. S. EVANSMay I suggest to the right honourable Gentleman words which I think will at least come very near to meeting his views, and they would satisfy us. I would suggest the addition, 746 after the word "imputation," of the words—
On both the general character and credibility of.
§ SIR R. FINLAYWe are getting very near. I should not mind the words—
Such as to involve imputations on the general character or credibility.
MR. GIBSON BOWLESMay I ask the permission of the House for one word of explanation. This is a very serious matter. I suggest that what we want to do is to enable the prisoner to attack the character of the witnesses against him, so long as he does not attack the general character of the prosecutor or his witnesses.
§ SIR R. FINLAYCertainly; he will be allowed to test their accuracy as regards the particular evidence they have given, but he will not be allowed to make a general attack upon them.
§ MR. ABEL THOMASDo I understand that the word "both" is to be accepted, because although it does not satisfy me, it would remove a great many of the objections that I feel? The Amendment proposed by my honourable and learned Friend behind me does not really seem to me to go far enough. The Amendment suggested by the Leader of the House, if I may be permitted to say so, makes the matter worse instead of better.
§ Amendment to the proposed Amendment, by leave, withdrawn.
§
Amendment proposed to the proposed Amendment—
In line 2, after the word 'on,' insert the word 'both'; after the word 'the,' insert the word 'general'; and after the word 'character,' insert the words 'and credibility.'"—(The Attorney General.)
§ Agreed to.
§ Amendment, as amended, agreed to.
§
Amendment proposed—
In clause 1, page 2. line 8, leave out 'the person charged and called as a witness,' and insert 'he.'"—(The Attorney General.)
§ Agreed to.
747§ *MR. DUNCOMBEI propose to add at the end of the clause a new sub-section, which will read as follows—
No person giving evidence under this Act shall be liable to a prosecution for perjury.This Bill introduces into our criminal law an entirety new and very radical change, and one of the principal objections to the new proposals that have been introduced is that they affect very seriously the present law against perjury. I have no intention of detaining the House very long in proposing this Amendment. I do not speak often, and the House knows that I seldom speak very long. Take a case where a wife is brought in to give evidence for or against her husband. Many cases have been known where a man may have been in almost all relations of life a scoundrel of the first water, but that does not prevent him being the kindest hearted of husbands. He is perhaps being tried for his life, and his wife thinks that she may help him by going into the witness-box and lying in his favour; she is cross-examined by some of those learned gentlemen whose speeches have interested this House so much to-night, and it is proved that she has not told the truth. Can you find me, in all Great Britain, a single British jury who would find a verdict of perjury against her? I think some provision of this kind ought to be introduced. We are doing all we can to assimilate our criminal law with the law of France. We are told that the object of this Bill is not to secure more convictions, and yet every argument put forward seems to prove that the only object of my right honourable Friends who are forcing this Bill at this hour of the morning upon a jaded House of Commons is simply and solely in the interests of the prisoner. The right honourable Gentlemen the Attorney General and the Solicitor General have stuck manfully by their Bill, but I must say I think the time has now come for them to make some reasonable concession.
§
Amendment proposed—
After the words last inserted, insert the words 'No persons who have given evidence under this section shall be liable to prosecution for perjury.'"—(Mr. Duncombe.)
§
Question proposed—
That those words be there inserted.
§ SIR R. FINLAYI really cannot take the honourable Member quite seriously. We have heard complaints about encouraging perjury, but it seems to me that this would be a direct incitement to perjury. I cannot accept the Amendment.
MR. GIBSON BOWLESI am bound to say that I think that is the legitimate outcome of the Bill as proposed by the Government. You cannot expect anything but perjury as the result of this Bill. The prisoner will perjure himself, and the prisoner's wife will perjure herself.
§ Question put, and negatived.
§ VISCOUNT CRANBORNEI had intended, Sir, to move a very important Amendment upon a matter which I desire to bring before the House—namely, the representation by counsel of a prisoner who is cross-examined under this Act, but I feel that such an important matter would not be adequately considered at this late hour of the morning, and under the circumstances I do not propose to move the Amendment.
§
Amendment proposed—
Page 2, line 14, at end, add—
(h) Nothing in this Act shall affect the provisions of section eighteen of the Indictable Offences Act, 1848, or any right of the person charged to make a statement without being sworn."—(Sir R. Finlay.)
§ SIR R. FINLAYThe effect of this Amendment will be to preserve the right which an accused person now has of making a statement before the 749 magistrate under the Statute 11 and 12 Victoria, c. 42, or make a statement at the trial. It is not intended that the Bill should interfere in any way with that right, and tins Amendment is suggested in order to prevent any misapprehension on the subject. I was asked in Committee whether the Government would define the cases in which a prisoner should be allowed to make a statement, and I said that no would consider that point. We have considered it, and we have come to tin conclusion that it would not be expedient in this Bill to endeavour to lay down any particular rule in such a matter. We preserve whatever rights at present exist, but we do not think it expedient to lay down any rule which would carry any further whatever rights a prisoner now has. I may mention to the House that there is a reason for that, and that is this: the privilege of making a statement such as I have referred to grew out of the intolerable hardship of persons not being allowed to give evidence in their own behalf. We are now about to allow accused persons to give evidence in their own behalf, and one cannot imagine why, when that right is given, the privilege enjoyed in certain cases of making a statement should be extended.
§ MR. S. EVANSThe right honourable Gentleman has perfectly accurately stated the position he took up in Committee, and the pledges or promises made by the Government. It only remains for me to say that I regret very much that they did not go further—I do not mean in the sense of extending the rights of prisoners, but that they did not see their way to lay down a definite rule on a subject upon which the judges themselves have differed—namely, whether a prisoner is of right entitled to make a statement, whether he be represented by counsel or no. However, at this hour of the night, and the Government having said that they have given the matter consideration, although I am sorry that 750 that consideration did not lead them to go the full length we desire, I do not think it advisable to detain the House by moving any definite Amendment to the Government proposal.
MR. GIBSON BOWLESReally this Amendment does not carry the case any further at all. I see absolutely no use in the Amendment moved by the Solicitor General. How does the case stand at present? Section 18 of the Indictable Offences Act says that—
After the examination of all the witnesses on the part of the prosecution as aforesaid shall have been completed,the accused may make a statement. That is to say, having heard the evidence, you are at liberty if you like to make a statement. That does not apply to the most material part of the case we have to deal with; it does not apply to the case of a person before a judge of the High Court.
§ MR. S. EVANSYes, the latter portion.
MR. GIBSON BOWLESThis Amendment, says that the Act shall not affect the provisions of section 18, "or any right of the person charged"—that is, any existing right. If you declare in this Act that the person has such a right, you will then resolve the doubt that surrounds this question. It is notorious that the judges differ on this subject, and I think the present is an extremely proper opportunity to clear the matter up. If you like to say that there is no such right, do that; or if you like, as I suggest you should, to declare that there is a right, let us do that. I do not know whether the Attorney General and Solicitor General would accept it, but I should like to move, in substitution of the Government proposal, the words—
Nothing in this Act shall affect the provisions of section eighteen of the Indictable Offences Act, 1848, and the person charged shall have the right to make a statement without being sworn751 I submit that it is very desirable that the right which is held to exist by many eminent judges should be absolutely established in a Bill of this kind, so as to leave no doubt on the subject.
§ SIR E. CLARKEI hope my right honourable and learned Friends will not accept this suggestion. There is no absolute right to make a statement, as has been suggested, but it has been an expedient of judges who have felt embarrassment and difficulty, because the prisoner was not able to give his own evidence in the case, and have thought that he might be permitted to make a statement. It is really of no consequence to discuss this now, because directly the prisoner has the right to make a statement on oath and be cross-examined, he would only be wasting his breath if he made a statement not on oath and declined to submit himself to cross-examination. The case in which the practice referred to was first resorted to was the memorable case of O'Donnell, who was tried for the murder of Carey, the Fenian informer. At that trial his distinguished counsel was allowed by the judge, and the then Attorney General (now Lord James) did not think it right to make any very strong protest, to make a statement Which it turned out had not been drawn up by him, but had been prepared for him, and which was proved at once to be manifestly untrue. I never knew a statement of this kind to be of any value whatever to the prisoner. On the contrary, I have known many cases in which the prisoner has owed his conviction mainly to the fact that his statement has given information against himself. I would only add this: that if we are to say that a prisoner shall be entitled to make such a statement, it will throw on the members of the Bar one of the most difficult and unpleasant duties. They would be called upon to settle the statement, and very often the statement might contain matters to which they 752 could not with a safe conscience venture to give their sanction. I hope the law officers will not agree to my honourable Friend's suggestion.
§
Question put—
That those words be there inserted.
§ Agreed to.
§
New clause proposed—
Nothing in this Act shall alter the rule of law that the onus of proof of the guilt of any person charged with an offence lies upon the prosecution save in so far as any statute has expressly enacted the contrary."—(Mr. S. Evans.)
§ MR. S. EVANSA very few words will be sufficient to explain the reason why I move this clause. An apprehension has been raised in the minds of many honourable Members that the result of this Bill will be to change or tend to change the onus of proof, and that the rule which has prevailed up to now, namely, that the prisoner charged with an offence must be assumed to be innocent until he is proved to be guilty, will be nullified. All we want to ensure is that the onus of proof will remain exactly as it is now.
§ SIR R. WEBSTERA similar Amendment to this was moved in Committee, and I was foolish enough to think that I had satisfied my honourable Friend that it was not desirable. This is a Bill to allow the prisoner to give evidence; it has nothing to do with the proof of guilt or the onus and proof of guilt, and in my opinion it would be most unwise to insert anything dealing with such matters.
§ MR. S. EVANSI beg leave to withdraw the clause. Perhaps I may be allowed to say that I moved it at the express wish of my honourable Friend the Member for Carmarthen, and I may add that personally I agree with the view of the Attorney General.
§ Amendment, by leave, withdrawn.
753MR. GIBSON BOWLESI beg to move —[Cries of "Oh, oh!"]—Sir, I must really protest against these interruptions; it is really becoming intolerable for gentlemen to come here late at night, who have heard none of the arguments on the business that has been going on, and show signs of impatience when a member of this House, in the exercise of his duties and his rights, rises to put his views before the House, I have upon the Paper four Amendments—
Page 2, line 15, leave out sub-section (1).Page 2, line 17, leave out from 'witness,' to the end of sub-section, and insert 'as provided by any such enactment.'Page 2, line 17, leave out 'either for the prosecution or defence and,' and insert 'for the defence.'Page 2, line 19, leave out sub-section (2).I only propose to move the first of these Amendments, and I do so because it will raise a question which I think ought to be raised. Sub-section 1 of clause 2 proposes to enact that—The wife or husband of a person charged with an offence under any enactment mentioned in the schedule to this Act, may be called as a witness either for the prosecution or defence, and without the consent of the person charged.Now, that is an entire variation in the whole scheme of this Bill. The scheme of the Bill is to call the wife or husband only for the defence, and only with the consent of the person charged. I have referred to the Acts enumerated in the schedule. There is first of all the Vagrancy Act, which deals with palmistry and fortune-telling, and so forth. Then
§ there are the Poor Law (Scotland) Act, the Offences Against the Person Act, and the Married Women's Property Act. Now, in these cases the husband or wife is a competent but not a compellable witness. The sub-section I now move to omit would make the husband or wife a compellable witness, because it says that either may be called as a witness "for the prosecution or for the defence." I contend that the law should be left as it is, and the husband or wife should not be called except with the consent of the person charged.
§
Amendment proposed—
Page 2, line 15, leave out sub-section (1)."—(Mr. Gibson Bowles.)
§ SIR R. WEBSTERI think the honourable Gentleman has omitted to notice the first line of this sub-section. It only applies to the wife or husband of the person charged. It is necessary under the Acts contained in the schedule, that in cases where you have to prove an offence; it is practically necessary that the wife or the husband should give evidence. This has nothing to do with the main scheme of the Bill, which is simply to enable people to give evidence in their own defence.
MR. GIBSON BOWLESI would just say [Cries of "Order, order!" and interruption]. If honourable Members will not listen to me, I will go to a division.
§
Question put—
That sub-section (1) stand part of the Bill.
§ The House divided:—Ayes 145; Noes 10.—(Division List No. 240.)
755| AYES. | ||
| Arnold, Alfred | Barton, Dunbar Plunket | Bolton, Thomas Dolling |
| Arrol, Sir William | Bathurst, Hon. Allen B. | Boscawen, Arthur Griffith- |
| Atkinson, Rt. Hon. John | Beach,Rt.Hn.SirM.H.(Brist'l) | Brigg, John |
| Bagot, Captain J. FitzRoy | Beaumont, Wentworth C. B. | Brodrick, Rt. Hon. St. John |
| Balfour,Rt.Hon.A.J. (Manc'r) | Bhownaggree, Sir M. M. | Carlile, William Walter |
| Balfour, Rt.Hon.G.W. (Leeds) | Blundell, Colonel Henry | Causton, Richard Knight |
| Cavendish,V. C. W. (Derbysh.) | Haldane, Richard Burdon | Nicol, Donald Ninian |
| Cecil, Lord H. (Greenwich) | Hall, Sir Charles | Northcote, Hon. Sir H. S. |
| Chaloner, Capt. R. G. W. | Hanbury, Rt. Hon. R. W. | Parkes, Ebenezer |
| Chamberlain,Rt.Hn.J. (Birm.) | Hardy, Laurence | Phillpotts, Captain Arthur |
| Chamberlain, J. A. (Worc'r) | Hayne, Rt. Hon. C. Seale- | Pickersgill, Edward Hare |
| Channing, Francis Allston | Hazell, Walter | Powell, Sir Francis Sharp |
| Chaplin, Rt. Hon. Henry | Hedderwick, Thomas C. H. | Richardson, Sir T. (Hartlep'l) |
| Charrington, Spencer | Hermon-Hodge, Robert T. | Ridley, Rt. Hon. Sir M. W. |
| Clark, Dr.G.B. (Caithness-sh.) | Hill, Sir E. Stock (Bristol) | Ritchie, Rt. Hon. C. T. |
| Clarke, Sir E. (Plymouth) | Johnston, William (Belfast) | Robertson, Herbert (Hackney) |
| Cochrane, Hon. T. H. A. E. | Jones, W. (Carnarvonshire) | Robinson, Brooke |
| Collings, Rt. Hon. Jesse | Kemp, George | Royds, Clement Molyneux |
| Colomb, Sir John C. R. | Kenyon, James | Russell, T. W. (Tyrone) |
| Cooke, C. W. R. (Hereford) | Kenyon-Slaney, Colonel W. | Samuel, J. (Stockton-on-Tees) |
| Cornwallis, Fiennes S. W. | Lafone, Alfred | Scott, Sir S. (Marylebone,W.) |
| Cox, Robert | Laurie, Lieut.-General | Sidebotham, J. W. (Cheshire) |
| Cranborne, Viscount | LawrenceSirEDurning-(Corn.) | Sidebottom, W. (Derbyshire) |
| Cubitt, Hon. Henry | Lawrence, W. F. (Liverpool) | Simeon, Sir Barrington |
| Curzon.RtHnG.N. (Lanc.SW) | Lawson, John Grant (Yorks) | Smith, A. H. (Christchurch) |
| Curzon, Viscount (Bucks) | Lawson, Sir W. (Cumb'land) | Stanley, Lord (Lancs) |
| Dalkeith, Earl of | Legh, Hon. T. W. (Lancs) | Stanley, E. J. (Somerset) |
| Dilke, Rt. Hon. Sir Charles | Leigh-Bennett, Henry Currie | Stock, James Henry |
| Disraeli, Coningsby Ralph | Leuty, Thomas Richmond | Strutt, Hon. Charles Hedley |
| Douglas, Rt. Hon. A. Akers- | Llewellyn, E. H. (Somerset) | Sturt, Hon. Humphry N. |
| Douglas-Pennant, Hon. E. S. | Lockwood, Lieut.-Col. A. R. | Talbot, Lord E. (Chichester) |
| Evans, S. T. (Glamorgan) | Loder, Gerald Walter E. | Thomas, A. (Carmarthen, E.) |
| Fellowes, Hon. Ailwyn E. | Long, Rt. Hon. W. (Liverp'l) | Thornton, Percy M. |
| Finlay, Sir Robert B. | Lopes, Henry Yarde Buller | Tomlinson, W. E. Murray |
| Fisher, William Hayes | Lucas-Shadwell, William | Valentia, Viscount |
| Folkestone, Viscount | Macartney, W. G. Ellison | Webster, Sir R. E. (I. of W.) |
| Forwood. Rt. Hon. Sir A. B. | Maclure, Sir John William | Wentworth, B. C. Vernon- |
| Foster, Colonel (Lancaster) | McCalmont.Mj.-Gn. (Ant'm N) | Williams, Colonel R. (Dorset) |
| Foster, Harry S. (Suffolk) | McKillop, James | Williams, J. Powell (Birm.) |
| Gedge, Sydney | Malcolm, Ian | Wilson, J. W. (Worc'sh., N.) |
| Gibbons, J. Lloyd | Milbank, Sir Powlett C. J. | Wodehouse.Rt. Hn. E.R. (Bath) |
| Goddard, Daniel Ford | Mildmay, Francis Bingham | Woodhouse,SirJT (H dd'rs'fld) |
| Godson, Sir Augustus F. | More, Robert Jasper | Wortley, Rt.Hon.C.B. Stuart- |
| Gordon, Hon. John Edward | Morgan, Hon.F. (Monm'thsh.) | Wyndham, George |
| Goschen, George J. (Sussex) | Morrell, George Herbert | Wyndham-Quin, Major W. H. |
| Graham, Henry Robert | Morton, A. H. A. (Deptford) | |
| Gray, Ernest (W. Ham) | Morton, E. J. C. (Devonport) | TELLERS FOR THE AYES— |
| Greene, W. Raymond- (Cambs) | Murray, Rt. Hn. A. G. (Bute) | Sir William Walrond and |
| Greville, Captain | Murray, C. J. (Coventry) | Mr. Anstruther. |
| Gull, Sir Cameron | Myers, William Henry | |
| NOES. | ||
| Allen, W. (Newc.-under-L.) | MacaJeese, Daniel | TELLERS FOR THE NOES— |
| Caldwell, James | Maddison Fred | Mr. Gibson Bowles and |
| Daly, James | Norton, Capt. Cecil William | Mr. Duncombe. |
| Doogan, P. C. | Price, Robert John | |
| Lees, Sir Elliott (Birkenhead) | Sullivan, Donal (Westmeath) |
Resolution agreed to.
§ SIR E. CLARKEI have now to move a series of Amendments to clause 3, and, with, the permission of the House, I will first explain the effect of those Amendments. This clause of the Bill as it stood was a clause which dealt at once with the right of reply, and with the order of proceedings, and when the person charged was called in his own defence. The Amendment that has been adopted this evening, if it stands as it is, would leave 756 it uncertain at what point of the proceedings the prisoner would be called if he alone were to be called, and it might be left in doubt whether the counsel for the defence would not be entitled to call the accused after the counsel for the prosecution had summed up. The series of Amendments I now propose would make the clause read as follows—
Where the only witness to the facts of the case called upon by the defence shall be 757 the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.