§ *MR. E. H. PICKERSGILL (Bethnal Green, S.W.)
I rise to move the Second Reading of a Bill establishing a Court of Criminal Appeal. Owing to my somewhat exceptional good fortune in securing the Ballot for two years in succession, I am able to introduce a Bill dealing with the same subject which was dealt with in the Bill produced by me last Session, to which the House was good enough to give a Second Reading—I say a Bill dealing with the same subject, but this is not the same Bill. Last year I simply put into the form of a Bill in Parliamentary language the recommendations upon this subject made by the judges in 1892. I thought that it was prudent in my first essay in this direction to put myself under the protection of those august personages. But I found that I had by so doing exposed myself to a kind of criticism which I should certainly have escaped if I had followed my inclinations in the drafting of this Bill. I was told that the title of the Bill was a misnomer. It was said that it was not, in the proper sense of the term, an appeal Bill at all, and I am bound to admit that there is considerable force in that objection. In a word, it became abundantly clear, in the course of the discussion last Session, that the general sentiment of the House of Commons upon this subject is far in advance of the recommendations made by the judges. It would be indecorous for me to say that I have thrown over the judges upon this occasion, but certainly it is true that I have produced 6 a larger Measure this Session, encouraged to do so, nay, I might almost say, coerced by the feeling expressed very generally by Members in the House last year. This Bill, I submit, corresponds to the name which it bears; it is, in the true sense of the term, a Bill for the creation of a Court of Criminal Appeal, and I believe that it embodies most of the suggestions which were thrown out by hon. Gentlemen on both sides of the House, who expressed themselves as friendly to the Bill which I introduced last year. Now, the Bill which I introduce to-day, Sir, is not original. It is substantially, with a few alterations, to which I do not think I need refer, the same Bill which was introduced by the Government of the day in 1883, a Bill bearing upon its back the honoured names of Sir Henry James, who was then Attorney General, Sir Farrar Herschell, who has since been Lord Chancellor, and Sir William Harcourt, who was then Home Secretary, and this Bill has gone through the mill of a Grand Committee. I think, therefore, that it would be rather presumptuous on my part, upon an admittedly difficult subject, to frame a new Bill, and it would be foolish to do so, considering that I have a Bill which has borne successfully that somewhat detailed examination which is brought to bear upon a Bill when it is considered upstairs. Now, I will explain very briefly the provisions of the Bill, but before doing so I should like to turn for a moment to some general considerations. Last year I stated pretty fully the general argument in favour of a Court of Criminal Appeal. It is not necessary or advisable, I think, that I should go over now the whole ground which I then covered, and for this reason: I will quote what the Home Secretary said upon the subject. Near the end of the Debate last year, he admitted that an alteration was necessary, and these are the words which appear in HANSARD—That there is a general consensus of opinion in favour of some alteration of the law giving some further appeal in criminal cases.That is the conclusion to which the Home Secretary was driven, as a result of a very long and interesting Debate, which took place last year, and this is the conclusion which the Home Secretary came to as to the general sentiment of the 7 House. I do not think, therefore, it is at all necessary for me to go over the whole ground, as was necessary last year. It will be more interesting and more useful, I think, and will give more actuality to this discussion from the commencement, if I try to meet shortly the main objections—the specific objections—Which were raised last year by those who oppose criminal appeal altogether. Now, so far as my judgment goes, the strongest argument which hon. Members seemed to advance with most personal conviction was what I may call the finality argument. They said, if you give an appeal upon facts, as apart from an appeal on legal points, that appeal upon facts will eliminate the sense of responsibility both of juries and of judges. First with regard to juries. My hon. Friend the Member for King's Lynn, who is not for the moment in his place, was particularly strong upon this objection, but I venture to think that he somewhat confused a proposal to give a right of appeal with a totally different proposal—namely, the abolition of the necessity for unanimity in the jury, and some of these objections, which would be perfectly valid if the proposal were to abolish the necessity for unanimity, did not equally apply to a mere proposition to give a right of appeal under certain conditions. Now, I want to state this objection as fairly as I can, and I think it comes practically to this: that if this Bill, or a similar Bill, were passed, the jurymen would say amongst themselves—in fact, they would act upon it—if we acquit, that is irreparable, but if we convict our decision will be sure to be reconsidered, and therefore, although we have a doubt, we will convict. I think really the argument upon the other side of this subject goes as high as that and amounts to that. The hon. Member for King's Lynn gave a personal illustration. On one occasion he was on a jury, and there were 11 men for one verdict, and the hon. Member for King's Lynn was upon the other side. He seemed to think that it was due to the present state of the law that he was able to get a hearing from the other 11 jurymen, and, as I understand, he talked them over. But, supposing the law were altered, would my hon. Friend have acted otherwise than he acted then? He does himself grave injustice for even 8 suggesting that he would have acted differently. Whether there is a right of appeal or not, I am sure he would have stood out for his own opinion, and I think it is a little unjust to attribute to others a weakness which he would not be willing to attach to himself. The argument then comes to this; unless jurymen feel that their decision is final they will not consider their verdict with sufficient carefulness. That is what I call the finality argument, and I want to meet this argument upon high grounds. I join issue absolutely upon this point with the hon. Gentlemen opposite. I say that they have no right to found themselves on finality in human decisions, and I think it is an application really of that chose jugée which we denounce with vigour when the example is given by a neighbouring country. It seems to me a revival in another form of Paley's argument that from the public point of view it did not matter a straw whether the man who was punished was innocent or guilty, because the public example was made. My hon. Friends will not admit that I have now stated the case fairly as against them, because they will reply that, if there was no other authority, then there would be much force in my objection, but they rely upon the Home Secretary—if there is anything wrong, the Home Secretary will be sure to set it right. Now, Sir, let me consider what it means; and here I would like to say very plainly and very emphatically that I speak only of the system. I will make no reflections upon the holders of the office of Secretary for Home Affairs, and still less, if it were possible, do I make any reflections upon the right hon. Gentleman I see opposite to me, and to whom I am indebted for much courtesy with regard to any questions I have ever put before him. But I am entitled to attack the system. What is the system? I say that the Home Secretary is not appointed with a view to this particular duty of reviewing sentences. There is no security that he will be a lawyer or that he will possess a judicial mind. We know that he is overwhelmed with work, and that every year we are putting more and more duties upon his shoulders, and we know, lastly, that he is a Member of the Government of the day, and that his attention may often be distracted, and often is distracted, by the 9 necessity for defending the Ministry to which he belongs, or himself, in a life or death struggle of a political kind. I say this, that if the system works well it is more by good luck than by good management. But there is another consideration which I should like to impress upon the House. At best the Home Secretary's inquiries are conducted in secret. A judicial error is not promptly rectified. At times it seems to be deliberately allowed to lapse, so that scandal may not be excited, that judges' feelings may not be hurt, and when the case has passed out of the public mind and is forgotten, then the victim is quietly released by a back door. Thus there is no moral lesson either to those who administer the law or to the public who obey. A judge gives a harsh sentence, he goes on in the old, old way; former errors are repeated, and the public chafes under a sense of dissatisfaction. Then, Sir, consider the cruelty to individuals. The verdict in a criminal case blasts a man's character for the rest of his life, and affects even his wife and children. Then, how inadequate at best, and at last is the remedy of the Home Office! What are the remedies? There are only two. One, the more frequent, is simply to release the convicted man, release him with a permanent stigma upon his reputation, which attaches to him, and which attaches also to those who come after him and bear his name. The other remedy is that of a free pardon. How grotesque, how absurd! The common sense and conscience of the community, I say, are outraged by pardoning a man for a crime which it is agreed on all hands he did not commit. So much with regard to this finality argument, and with regard to juries. As regards judges, whatever effect—the possible effect—an appeal may produce upon juries, its effect upon judges, I submit, will be good without, qualification. I should no more think of speaking disrespectfully of Her Majesty's judges than of talking scandal about Queen Elizabeth; but this is a matter of common observation, and it is obvious, and it is only consistent with the course of nature, that a judge works best and most carefully when he knows that what he does is the subject of review. Then, Sir, with regard to the second part of this Bill, the inequality of sentences. I dealt with that part of the 10 case at some length last year, and I do not mean to say anything beyond what I then said; indeed, it is not necessary that I should recapitulate or enforce these facts. There was a consensus of opinion that here was an admitted evil. The Attorney General, speaking with all that responsibility which attaches to his great office, said—No man feels more strongly than I do the discrepancies in sentences.But, whilst the evil was admitted, objections were taken to the remedy suggested. My hon. and learned Friend the Member for the Epsom Division of Surrey, whilst he admitted to the full the great evil to which I am now referring, said that the Court of Appeal could not escape the personal view. Now, I do not understand that objection, and I think I can answer it out of the mouth of my hon. and learned Friend himself. In an earlier part of his speech he said—No one can follow the proceedings in criminal cases without noticing that, owing sometimes, perhaps, to heat, or temper, or prejudice, sentences are passed which seem very unjust.If that is so, then I say clearly your remedy is to refer the sentences to a bench of not less than three and not more than seven judges, which is, I suppose, an average of about five judges, because it is ridiculous to suggest that heat, temper, and prejudice can affect a bench of five judges all in the same direction at the same time. The fact is that the prejudice of one judge would be the contrary prejudice of another, so that there is every security that with a bench of five judges, or even with three, you will correct these excesses, which are mostly due, I think, to the idiosyncrasies of the judge in either taking a harsh view of the particular class of crime, or taking a, too favourable view and giving too light a sentence. Now, the hon. Member for Ripon put forward a view which I should like to refer to because he represents—I will not say considerable—but some body of sentiment in this House, and oven outside this House. He said that a learned judge had remarked to himWhatever you do in the House of Commons, do not interfere with the present power possessed by the Home Secretary. It is a most valuable power exercised in a way that no Court of Appeal could exercise it.11 Now, I want to say a word or two in answer to that statement which is attributed to a learned judge. In the first place this Bill does not interfere with a very considerable part of the duties which the Home Secretary has to perform. This Bill does not in any way interfere with the exercise of the prerogative of mercy all that it does is to relieve the Home Secretary of those cases which are appealed from upon questions of fact, often of a very conflicting kind, and I do think that considerable confusion and mischief are caused by the fact that two totally different characters are united in the right hon. Gentleman, who is, for the time being, Secretary of State for Home Affairs, namely, that he is performing the functions of a Court of Appeal, and he is also advising Her Majesty in regard to the exercise of the prerogative of mercy. I think that great public advantage would result from separating these functions, giving the former class of functions to a legal tribunal, and leaving, of course, as in every country you must leave, the exercise of the prerogative of mercy vested either in the head of the State or in someone who is advising the head of the State. This argument of my hon. Friend the Member for Ripon seemed, to some extent, to be endorsed by the Home Secretary last year, and I should like to thank the Home Secretary for the speech which he delivered last Session. It was, if I may say so, a well poised and admirably-balanced speech, the tone of which was most sympathetic, and its arguments were characterised by great thoughtfulness. The Home Secretary said, in the course of that speech—I cannot help feeling that if a sentence has been appealed against and confirmed by the Court of Appeal, dealing with the sentence in a strictly judicial manner, it would be much more difficult for the Home Secretary to recommend the exercise of the prerogative of mercy if he thought that there were in the case equitable and moral grounds which he was also bound to consider.There is, of course, a great deal of force in that objection, but I do not think that too much weight ought to be attached to it for this reason: There is no country in the world in which the exercise of the prerogative of mercy is not allowed in some way, and there are comparatively few countries in which there is not a Court of Appeal, to which a criminal can 12 carry his case, to be reconsidered on legal grounds. The difficulty, therefore, to which the right hon. Gentleman refers, and which he anticipates will exist if this Bill were passed, does not exist in other countries, or if it does exist, they manage to get over it. But there is a very conspicuous instance within the limits of the British Empire itself. If there is one country which is the classic land of criminal appeals it is British India. There is no country in which there is, as we may think, judging, of course, by the English standard, such a vast and elaborate system of criminal appeal as exists in British India. And yet these powers of appeal are not in substitution for, but in addition to, the prerogative of mercy, which can be exercised by the Viceroy on behalf of the Crown. So much with regard to the general considerations which I have thought well to impress upon the House. Now, I desire to explain, but very briefly, the provisions of this Bill, and show its practicability—but, remember, Sir, I am not wedded to this plan. My hon. Friends who are associated with me, and who have given their names upon the back of this Bill, quite agree with me in this: that if the Government will only give us a Bill, then let them do it by any plan which commends itself to their minds; but I think that we have shown, by bringing this Bill before the House, that it is practicable to establish, in some form or another, a Court of Criminal Appeal. Now, the main differences as between this Bill and last year's Bill are as follows: In the first place, as I have already indicated, this is really an Appeal Bill. It gives, under certain conditions, a right of appeal against conviction. Secondly, it gives power to apply for a new trial. There was no point, perhaps, upon which I was more attacked last Session than this—that my Bill did not give power to grant a new trial. It was said that that was a grave assault upon the system of trial by jury, because, after you had called your jury together, and after you had got their decision, then you proposed to go before a number of judges to overrule the decision of the jury. Of course, there is very great force in that objection, and I meet it by the Bill which I now submit to the House, namely, by giving a power to grant a new trial, so that it will not be the decision 13 of the jury overruled by the opinion of a bench of judges, but the decision of one jury overruled by the decision of another jury. Thirdly, in the Bill of last year there was power given to the criminal court of appeal to increase sentences as well as to diminish them. That was most strenuously attacked on all sides. I had no hon. Member, I think, to advocate that proposal of the Bill, and I was coerced, therefore, into accepting the decision of the House of Commons upon that point, and this Bill, whilst it gives power to confirm or diminish a sentence, gives no power to increase it. Therein, I deferred to the almost unanimous sentiment of the House of Commons. Then with regard to the constitution of this Court of Criminal Appeal. The constitution I now propose differs altogether from the constitution as proposed in the Bill of last year. This Bill proposes that the Court shall be composed of all the judges, both of the High Court and the Court of Appeal, excepting the Lord Chancellor. The Lord Chancellor is excepted because he is a member of a political party, and it is thought not desirable that he should have any part in deciding criminal cases where it might be considered that political feelings were aroused. In the constitution, as proposed by this Bill, an endeavour has been made to make it as elastic as possible, so that any judge might be utilised for the purposes of the Court. It is proposed that the Court shall have power to sit in divisions of not less than three or more than seven, and an appeal is also given by leave to the House of Lords. I think, having regard to a recent case, that that is a desirable provision. [Mr. BUCKNILL (Surrey, Epsom): No. Not in all cases.] On a point of law, by leave—there will be no appeal to the House of Lords on a question of fact. The point is this, that you cannot carry a case stated up to the House of Lords; and advantage has been taken of that in a notorious case to raise by a side wind the same issue in a civil Court, so that you are in a very unfortunate position—you have got one decision given by a Criminal Court of Appeal, and another by a Civil Court of Appeal. The only possible excuse for raising the question a second time was that the present law does not give an appeal to the House of Lords upon a point arising in a criminal trial, and that 14 ground will be cut away by the change which is proposed in this Bill. Now, it has been said that you will be flooded with cases of appeal, if a Bill of this kind were passed into law. I quite admit that it is necessary that there should be some preliminary sifting of cases which are presented for trial, and, therefore, it is proposed by this Bill that application for leave to appeal must be made to two judges of the Court of Appeal, sitting together. I do not call them a divisional Court, because I think that the life of a "divisional court" co nomine is not, perhaps, a good one from an actuarial point of view. I was in some doubt, with regard to applications for leave to appeal, whether it would be desirable to lay down in the Bill itself any directions by which these judges should be guided. After careful consideration, I have decided to leave it open. I thought that the object desired by those who would introduce any guiding principles would probably be defeated, as so often happens. I think it would have rather a restricting than an enlarging character, and, of course, what the court of two judges will have to decide is this: is there, or is there not, a prima facie case for an appeal on any of the grounds which are specified in an early clause of the Bill—namely, in Clause 3. The grounds upon which an appeal may be applied for are stated in that clause. I do not think it is necessary to refer in detail to the grounds, but there is one ground upon which an appeal may be granted, to which I think attention should be specifically called, and that is this: An appeal may be asked for and granted where, by reason of theNon-production of evidence, whether known or not to the defendant at the time of the trial, and material to have been brought forward in the interests of justice, or from any cause whatsoever, there has been such a miscarriage of justice as to render it necessary in the interests of justice that a new trial shall be had.No doubt, differences of opinion may arise as to whether that ought to be a ground for granting an appeal. Personally, I have a very strong feeling that it ought to be one of the grounds. Now, Sir, in conclusion, I ask the House to give a Second Reading to this Bill this afternoon. I do 15 not want the House, if it will grant my prayer, to bind itself to this particular form of Bill. If the House will affirm the principle, then what I suggest is that the Bill should be referred to a Select Committee, in accordance with the suggestion which was thrown out by the right hon. Gentleman the Home Secretary last year. This Bill, Sir, is influentially supported by hon. Members of my own profession, and the names on the back of this Bill show, at least in the expert opinion of competent men, that such a Measure—I do not say this Measure, but somewhat on these lines—is practicable. This Bill is also supported by three Members of that Party which we are accustomed to regard as specially associated with the interests of labour in this House. I think, Sir, that that fact is also significant. It reminds us of the strong feeling among the public outside that further facilities for appeal in criminal cases ought to be provided. It is meet that the House should give heed in this matter to the public voice, for, in the noble words of one of the greatest masters of our law—Next to doing right, the great object to be kept in view in the administration of the criminal law should be to give public satisfaction.Sir, I beg to move the Second Reading of this Bill.
§ MR. R. ASCROFT (Oldham)
I beg to second the Motion of the hon. Member for the South-west Division of Bethnal Green. Last year, when this Bill was under discussion, I not only criticised it, but I took it upon myself to put down no less than 15 Amendments. I may say that my hon. Friend has carefully considered these Amendments, and, with very few exceptions, adopted them. The Amendments were moved, not with the object of wrecking the Bill, but with the object of rendering the law of appeals in matters affecting the lives and liberties of the subject as nearly perfect as possible. There is no doubt whatever that in the country at the present moment there is a strong feeling that where the lives and liberties of the subject are concerned there is not the same facility, nor the same advantage, nor the same protection, nor are there the same 16 safeguards as exist in paltry questions of mere pounds, shillings, and pence. Questions of £ s. d. are properly safeguarded in the different courts, and I believe that the time has come, and that the present moment is ripe, when this question should be dealt with and considerable alterations and extensions made in the law. Now, Sir, my principal objection last Session was that there was not an absolute right in the case of condemnation to capital punishment for the prisoner to appeal or to apply for a new trial. The sections in this Bill dealing with the question alone are, I think, sufficient to justify the House in consenting to the Bill being read a second time. These sections have been most carefully drawn in a wise, statesmanlike manner, and I do not see that any difficulty can arise in carrying them out; nor do I see that any objection can be taken to them by hon. Gentlemen who oppose this Bill, hon. Gentlemen who are chiefly connected with the profession of the Bar, and to whose opinions, no doubt, we pay due and proper respect. Of course, many of the arguments which have been raised in connection with this question can be met in a very few words. In the first place, we are told that already, in criminal cases, there are three trials, and a person charged with a criminal offence is dealt with first by the Justices of the Peace, then by the Grand Jury, and then he is subsequently dealt with by the ordinary jury. But it is well known in this House to every Member who is conversant with criminal jurisprudence that the trial before the Justices is nothing more or less than a preliminary inquiry for the purpose of ascertaining whether there is a primâ facie case against the accused person. It is also well known by those who attend the Grand Jury that the duty of the Grand Jury is simply to ascertain whether or not there is sufficient evidence to put the prisoner upon his trial. I submit respectfully that to all intents and purposes there is one trial and one trial only. In civil cases we know perfectly well that every facility is offered with the object of enabling any man who considers himself injured in a pecuniary sense to appeal right up to the final tribunal of the House of Lords. Now, Sir, 17 up to that point, I consider the objections have been fully met, and have been fairly dealt with, and I submit respectfully to this House that the question of capital punishment and the right of appeal are sufficiently important to justify the House in consenting to the Second Reading. Another objection raised was that more judges would be required, and more courts would be required, and great expenses would be incurred. These objections are, I submit, mere bagatelles, and not worthy of serious argument for a moment. If this Bill will necessitate more judges, then it will show that there are a great number of appeals, and will prove that there are a great number of people who consider that they have not had justice meted out to them. I do not think that there would be any difficulty in the appointment of the judges if it was found necessary to have them appointed. It would only be right, under the circumstances, that the strength of the Bench should be increased to any extent that might be necessary. It has been said that if such a Bill as this were passed everybody would appeal; but, excepting in cases where sentence of capital punishment has been pronounced, an appeal can only be made with the leave of the court; but certainly every opportunity within reasonable and legitimate grounds should be allowed a man of removing the stigma of criminal guilt upon him. At the present moment, if fresh evidence arises, as it does in certain criminal cases, the prisoner has no remedy. He may receive from the Home Secretary Her Majesty's pardon for an offence he has never committed; but I do not know that there is any intention to do away with that great right of appealing to Her Majesty's Royal prerogative of mercy. The object of the Bill is not to assist the guilty to escape, or to make the conviction of the guilty any more difficult; it is simply to place upon the same footing as pecuniary questions that which is so valuable to every man—the life and liberty of his fellow creatures.
§ MR. T. T. BUCKNILL (Surrey, Epsom)
I made a few observations upon the Bill of last year, and I should like to make a few observations upon the Bill of this year. It seems to me that this Bill is a retrograde step. The Bill which was 18 produced last year, I understood my hon. and learned Friend to say was intended by him to be practically a Bill for assisting the Home Secretary in his duties and lightening his labours in regard to the revision of sentences in criminal cases. He then thought that sentences might be increased, and that was a matter which many of us thought—in fact, most of us—should be taken out. If this Bill had been anything like the Bill produced last Session I should now, as then, have supported the Second Reading, and have endeavoured to amend it in Committee; but, unfortunately, such is not the case. In this Bill, first of all, an appeal is to be given in cases where sentence of death has been passed. Now, I cannot but think that this House would be undertaking a very serious responsibility in assenting to a Bill which grants new trials in such cases. To have a prisoner who has been tried for his life and convicted sent down again to be tried for a second time, because of the matters mentioned in the long third clause of this Bill, does seem to me to be an undertaking which would impose huge responsibilities upon all concerned. Supposing, for instance, that this Court of Criminal Appeal is dealing with the particular case of a person who has been condemned to death. The court is to consist of five judges. Supposing that three of the judges should be in favour of a new trial being granted and two adverse to it, you have then this condition of things—that the learned judge who tried the case would not be dissatisfied with the verdict, because I think that it is hardly ever the case that the learned judge who presided is dissatisfied with the verdict. I hardly ever heard of a case where the learned judge was dissatisfied with a verdict of guilty in a murder case. Then you have the judge who tried the case and the two judges in the minority in the Court of Criminal Appeal, and the three judges of the same court who are in favour of a new trial. In such a case as that, what guarantee have you that the new trial would be more satisfactory than the former one? You would have this fact to deal with—that so soon as the jury begins to ascertain the fact that its verdict may be set aside and a new trial probably granted, inevitably, in the nature of things, the jury will be inclined 19 to be less careful than they are now. There is no guarantee that the second trial may not be just as unsatisfactory as the first, and I do not see why, if there are two trials, there should not be a third. There is another point I should like to draw the attention of hon. Members to, and that is that, practically, this Bill, if passed, with its provisions dealing with the revision of sentences in capital offences, will end in the abolition of capital punishment. I hear an hon. Member cheer that remark, but if anybody wishes to see this Bill passed for the indirect purpose of the abolition of capital punishment, let him have the courage to say that it is his desire, and bring in a Bill which says that is the object in so many words. The indirect effect of this Bill will be to abolish it, because I do not believe that any person would direct a fellow creature to be hanged who had been tried once and found guilty, and who had been tried again after an interval of some months, and again been found guilty. The fact that the sentence had been hanging over his head for so long would be that it would be a barbarity to execute it. I shall certainly oppose any Court of Appeal in the case of capital crimes. Now, so far as the Bill relates to the revision of sentences in criminal matters, it has my support, and I shall always vote for any Measure which will provide a greater security for the more equal distribution of sentences on prisoners. I have had the honour of being a Recorder for 15 years, but the difficulty one has, if one tries to do his duty, and seeks to find what sentence he ought to inflict, is in the case of those who have been convicted many times before. It is a most thing to do, and we are all liable to prejudice, inasmuch as we are all mortal. Some judges are known to be too severe, and some to be too lenient, and it is to prevent the possibility of the public saying that one judge is too hard, that I think it is only right and proper that there should be a court which has the power to revise sentences by diminishing them, but certainly not increasing them. With regard to the number of cases to be brought before the Court of Appeal, I am not afraid of what was said by Sir Henry James when he introduced a Bill which was practically the same as the present in 1883. He said there had 20 been an average of 12,000 convictions per annum, and that in three years the Home Secretaries had only set at liberty 12 persons convicted of grave crimes. If 12,000 had a right to appeal it was possible that the court might be blocked; but I do not think that this will be the case, because the public would get to know in a short time that the court had laid down certain rules under which they would not allow a new trial, unless the facts were such that, in their opinion, 12 reasonable persons could never have found the verdict, or for some other reason, and convicted persons would know what chances they had of getting their sentences revised. I have no reason, therefore, to believe that so many appeals would be lodged. There is to-day, as it appears to me, something I do not like, and look upon, as to the future, with some dread. That is the increasing tendency on the part of judges to cross-examine witnesses. With a certain knowledge in my own mind that they do their best, and convinced as I am that they are absolutely honest, there is that tendency, which I see increasing and which I very much regret, to cross-examine witnesses. It comes sometimes after both counsel have finished with the witness, and I have heard judges say that counsel should not be allowed to examine after them. Given the fact that a judge has often strong opinions, because he is only human, and cannot help having them; granted that he desires to make a point clear which he has in his mind—I still say the increasing tendency to cross-examine witnesses is not to be commended. If this Bill is passed, a judge will know that there is a likelihood of a new trial, and that judge will always, so to speak, be the more determined that the verdict shall be such that there shall be no appeal with success from it, and he will be still more inclined to cross-examine witnesses in the matter. I should, therefore, like to see some clause introduced in this Bill to meet that point. With regard to the revision of sentences, it is, I think, an excellent Bill, and I raise my points, not in any spirit of antagonism towards it, but because I think that with regard to capital sentences it would not work with any benefit. Therefore, if my hon. and learned Friend does not see his 21 way to withdraw that part of the Bill to which I dissent, I shall feel it my duty to vote against it.
§ *MR. SERJEANT HEMPHILL (Tyrone, N.)
I observe that this Bill extends to Ireland, and, therefore, I think that, as a member of the Irish Bar, it is my duty to state very shortly my views with regard to it. I may say, without being guilty of egotism, that I have had a very long and varied experience in the administration of the criminal law in Ireland, both as a prosecutor and a defender of prisoners, and for a long period also as a judge of Quarter Sessions, and I unhesitatingly say that this Bill wipes off what has always been considered a very great blot upon our jurisprudence. To any ordinary hearer, whose judgment is not warped by long tradition and long precedent, it would seem a very extraordinary proposition that, while our law gave a right of appeal in the most trivial cases, involving, it might be, little more than a few pounds, if so much, on the great issue of life and death, the decision of one jury and the sentence of one judge should be final and conclusive, with no chance and no hope to the convict, whether innocent or guilty, unless such as might depend upon the exercise of the discretion or prerogative of the Crown, which, we know, is exercised in England by the Home Secretary, and in Ireland by the Lord Lieutenant of the day. That is a startling proposition to an ordinary hearer. Then I confess I cannot follow the argument of the hon. and learned Gentleman who spoke last, when he said that a very inconvenient result might flow from the circumstance of a second jury being influenced by what has taken place before, or by the circumstance of the first jury shaking off its sense of responsibility because of the possibility of a new trial. What we have to look at is—what is right in principle on so grave a question as this? Every consideration of expediency, every consideration of inconvenience in procedure, must, I say, give way, and, dealing with the first part of this Bill, I have no hesitation in saying that an opportunity should be given to a prisoner who has been convicted of submitting, under certain conditions, his case to the consideration of a second 22 jury. Many of us in this House are aware that this Bill does give a shorter and readier mode of dealing with questions relating to capital punishment than at present exists at common law. In common law you can reverse a conviction for error apparent on the record, for error in the indictment, and you can, by a circuitous and most expensive proceeding, which is often to this day resorted to, reverse the decision of the judge and jury on the first trial. A great portion of the earlier part of this Bill merely facilitates the opportunity of doing that, and leaving the matter to be determined, not by a circuitous writ of error, but by an appeal to a Court of Criminal Appeal. Therefore there is no new principle so far as that part of the Bill is concerned. I am speaking now of error on the record. The early section of this Bill provides that where there is error in the indictment or on the face of the record you may so direct by appealing to the Criminal Court of Appeal. Now, nobody can object to see that facilitated, as it is by this Bill. I admit there is a novelty in this Bill—a novelty in favour of which I feel very strongly—namely, that where there has been a miscarriage below, in consequence of the verdict being against the weight of evidence, and where, on minute examination, there was not a preponderance of evidence in favour of the conviction of the prisoner, there is no reason or principle, in common justice or humanity, why it should not be subject to reviews One can hardly realise the sense of responsibility which falls on a trial where the case involves capital punishment upon a fellow creature. I cannot believe any jurors are so callous or indifferent as to be thrown off their guard, and from doing what is right and satisfactory to their consciences, merely because, if they went wrong, that error might possibly be set right. I do not think that argument should weigh for one moment, nor is there anything in the suggestion that there may be too many appeals. In the first place, the number of capital crimes in England and in Scotland are comparatively few. In Ireland I am happy to say that, if there are three capital convictions now in the course of one circuit, the number is beyond the average, and, therefore, the suggestion 23 that the number of cases that might arise through this new jurisdiction of appeal in capital cases might block the court is futile and wholly unfounded, because the number of convictions is small; but, even if they were as numerous as they were before Peel's Act, it would be no argument for any delay in dealing with a question of life and death, and it is wholly unworthy of the British House of Commons to suggest for a moment that any possible block of the business of the judges was a reasonable excuse for opposing a remedy which commended itself to their sense of justice and humanity. I am altogether in favour of this jurisdiction. I am satisfied that the judge who tried the case in the first instance would himself rejoice at having the possibility of a fallible human mind set right, and I see no possibility of danger in the House giving a Second Reading to that part of the Bill. With regard to the revision of sentences there seems to be only one opinion in the House. I think it would be impossible to lay down any hard and fast line fixing the number of years of imprisonment or penal servitude to be given to any particular crime. I think the law is right. As it stands it gives a certain latitude to the judge who first tries the case, and gives him a maximum penalty, beyond which he cannot go, but within which he can exercise his judgment, having regard to the features of the case before him. It has been argued that some judges, either through some idiosyncrasies, or owing to their temperament, are very much more severe in their sentences than others. That observation applies to every country where criminal law is administered in this manner, and cannot be guarded against, except by some such provision as this. If a sentence which shows inhumanity is, through some idiosyncrasy of a particular individual, passed upon a convict, why should it be left to the Home Secretary or the Lord Lieutenant to modify or revise, with not even a Court of Criminal Appeal, such as laid down by the provisions of this Bill? Is it not much more reasonable that an opportunity should be given to the convict of going to a tribunal consisting of seven judges, in order to see whether the learned judge who tried the case in the first instance might not have exceeded the bounds of his discretion in passing so severe a sen- 24 tence? We have a remarkable instance of the difficulty that such a law as this suggested here might have avoided in those cases which have given rise to so much heart-burning in Ireland—I mean those cases which were connected with one of the burning questions in Irish politics, even to this day—namely, the Amnesty question. If an opportunity had been given to the prisoners there—and I am not for a moment asserting that this Administration or that were wrong in the course they pursued—but if an opportunity had been given to these prisoners of bringing their sentences of transportation for life for treason-felony—ihe offence being really one coming under the Explosives Act, and the punishment limited to a maximum of 20 years — if this opportunity had been afforded to them, the court might, or it might not, have revised the sentences. If the court had not diminished the sentences, all ground of complaint would, of course, have been removed; but if the court had affirmed the sentences, would it not have a hundredfold fortified the attitude which had been taken in not relaxing the law? I only mention this case as illustrative of the necessity for revising the sentence in certain cases in which it would be most desirable that an unfortunate prisoner, who may be sentenced to 10 or 15 years, might have an opportunity of having a punishment little short of death reduced. As a visitor, if one enters a convict prison, you feel that in these places the silence and almost the shadow of death prevail and hang around one, and even in the hurried survey of a few hours the visitor is depressed to a degree beyond the power of description, and where a man is sentenced to 10 or 15 years, it is, in reality, a sentence little short of that of death. I think it is one of the most important and grave questions that can engage the attention of Parliament. We have only to take up a newspaper day by day, and, reading the reports of the trials, one cannot help saying sometimes, "That is a severe sentence." If it makes such an impression upon an impartial and indifferent mind, should not the person who has to suffer the injustice have the right to appeal to a responsible court which, knowing the facts, may review the sentence? The exercise of the prerogative of 25 the Crown is at present the only hope of appeal from the opinion of the judge who decides the case originally. The usual practice is for the memorial to be sent to the judge who tries the case in the first instance, and the result depends upon his view, and the report which he makes. It is the view of the same mind which passed the sentence originally; and it depends upon that report whether the sentence ought to be reconsidered or not. I speak from my own practice as a judge of Quarter Sessions, where frequently, in cases which were brought, before me, I have been called upon for a report of the evidence and proceedings, and I think an opportunity ought to be given to the prisoner of appealing to a grave and responsible court to have his sentence revised, and that the matter ought not to be left to whatever view the Executive may chance to take.
§ *MR. W. AMBROSE (Middlesex, Harrow)
At the present time everybody seems to take the view that the fact that although in a matter of small pecuniary interest an appeal is given to a higher court, yet in a question of life and death there is no appeal, and that that must be looked upon as an anomaly. Well, now that seems at first sight to be an anomaly, and something that requires attending to. But is it, when you come to look at it? First of all, it must be remembered, as regards the difference in a matter of life and death, that every man in England is entitled to have the question of guilt or innocence, affecting his life, or his liberty, or his conviction, tried by his peers. Has the right hon. Gentleman forgotten that, if you give the right of appeal to the judges when the full court is sitting in London upon matters of this kind, the ultimate decision of the question of guilt or innocence would rest not with the jury, who may be regarded as his peers, but with the court above? Another chance would be given by going to a different tribunal, but I would venture to remind the House that, not only in the case of convictions, but also in the revision of sentences, the present disposition no doubt would be to give an appeal only to the defendant. Are you prepared to meet the consequences of the establish- 26 ment of a Court of Appeal such as this? Because, depend upon it, after the discussions such as those we have had to-day, and such as we had this time last year, everybody's interest will be in favour of the prisoner. By-and by there will arise champions in the interests of justice who will say if the prisoner is to have second chance of getting off there must also be a corresponding right given to the Constitution to appeal, and that, if the prisoner is to have the right to appeal by way of getting his sentence reduced, the Constitution must have the right, in a case in which the sentence is too light, of having it increased. I know that at present the notion is that a prisoner's trial is pretty much the same as the chance of a hare or a fox of getting away in a hunt; and this Bill proposes, so to speak, to give another chance to the hunted hare or fox. As a mere matter of sport this is very nice and very interesting, but you must bear in mind the main fact that with the efficiency of the law certainty of punishment will follow the commission of crime; and, if that be so, is it well to play with the question of convictions, and to give the appeal which is here suggested? A little observation was made by my hon. Friend on my left, and also by the right hon. Gentleman the late Attorney General for Ireland, with reference to the fact, that you have an appeal in the matter of small financial questions. Well, that is so. But let me remind the House that that appeal is given on both sides. If the man who bought the goods may have an appeal, so the man who sold the goods may have an appeal. But you do not propose to do that; you only propose to give an appeal to the one side; so that the analogy does not follow. Moreover, the main point which, I think, ought to be borne in mind by the House is this—that the creation of this court will have a tendency to destroy the principle that a man should be dealt with by his peers. For it eventually comes to this: that a prisoner who may be tried for his life, or for any crime, will be found guilty or innocent, as the case may be, not by the jury, but by the court above that will sit and hear the evidence that may be recorded. I will say a few words by-and-by as to how far that Court of Appeal is competent to deal with the case. Well, 27 now, a great deal is said about the hardship that there is no previous trial. I venture to say that that is not correct. Far be it from me to say that there is any definite trial, or anything that could be put forward as an actual trial. I grant there is not, but I do submit that the preliminary hearing before the magistrates is, if not an actual trial, the very next thing to it. If a man is clearly innocent, if it is a matter of easy demonstration that no case of guilt can be brought home to him, the probability is that the magistrate will dismiss the case The well-known practice, on the part of the magistrate, is to dismiss the case if, in his opinion, there is not sufficient ground to justify a jury in bringing in a verdict of guilty. Well, the effect of the preliminary inquiry is this—and it seems to be a very useful one—that a prisoner goes to trial with a précis of the evidence that is given against him,; he is not liable to be taken by surprise. In a case of trial for an action such as has been mentioned by hon. Gentlemen—for goods sold, and so on—a man has to meet a claim, the particulars of which he has never heard before, and the evidence by which it is supported he has never heard before. In this case there may be some necessity for an appeal, but in the case of a prisoner at the bar the evidence is given before a magistrate, and the magistrate does not send the case for trial until all the evidence to be produced is put upon the depositions. But what is the result? The man goes for trial, after he has been before the magistrate, and the magistrate has already decided that there is a case to be properly submitted to a jury. He is, therefore, prepared for it. Then, if it is a case of no evidence, or a case of prejudice, or anything of that kind, the jury throw out the Bill. Do you doubt that, if there were an appeal given from that verdict to a court above, it would not affect the way in which that jury tries the case, aye, and the way in which the judge directs them, and the way in which the judge himself tries the case? Gentlemen who have been present at the courts must have heard before now a judge often say to counsel, when he has been arguing a point, "Well, if I am wrong, you can take it to the Court of Appeal," and he 28 says that with a light heart, and nobody blames him for it. But jurors in special cases would give anything to escape, if possible, from the responsibility of finding a prisoner guilty; and if they could see their way to do so, consistently with their duty, do you mean to suggest that they would not see their way, when they know that there is an appeal from their decision? Why, they would argue at once—"It does not matter which way we find the prisoner, he will take his case to the Court of Appeal." The result of all this would be that you would reduce the investigation before a judge and jury to the level of an inquiry by a magistrate. Just consider what would happen if an absolute appeal were given in every capital case. Trial would be succeeded by trial. I should not myself have thought much about mere finality, but it is clear that the effect of the appeal would be to reduce the finding by the jury to a mere interlocutory proceeding, because there is no permission required by the court for the appeal. In capital cases a prisoner may lodge an appeal direct, and go at once, without any delay or leave or anything of that sort, to the Court of Appeal, and, if he chooses, the whole question will have to be reviewed by the Court of Appeal now. What would be the result of that? You would have a trial conducted at the Assizes; a verdict of guilty is found. The prisoner takes it all with a light heart because he would be able to appeal. He does appeal, and then you come up to London and you have counsel moving for a new trial, upon the ground, it may be, that the weight of evidence was in favour of the prisoner, and that the verdict of the jury was against the weight of evidence. Just think for a moment what the judges would have to do. They would have the notes of the evidence. What sort of notes would they have? If a judge belongs to the old school, he occupies himself in taking notes, instead of watching the proceedings, watching the faces of the witnesses, and observing all the incidents of the trial. If he does that, then they get a pretty full note of the case. On the other hand, if you happen to have a judge who has taken very small notes, but has kept his eyes open as to everything that has been going on around him—if you have it tried before 29 a judge like that, what must be the position of the Court of Appeal for the purpose of deciding the questions of law that may arise, and especially the question as to whether or not it is against the weight of evidence? The notes would be mere skeleton evidence, and then, instead of having all the facts and all the evidence to grasp in the same way that the judge had at the trial, and in the same way that the jury had, there would only be a more skeleton of the case to be dealt with, and the decision would be altogether unsatisfactory. Well, then, what happens? Finding that the evidence of So-and-so is not on the notes, they say there is no evidence to go down for a new trial. What is the result? The witnesses go back. But if a case should be sent down for a new trial, can you not conceive with what risks to the interests of justice a new trial would take place? Between the first time and the second great influence would be brought to bear upon those witnesses. Do you suppose that the relations and the friends of the prisoner would not directly or indirectly have been at them? The result would be that the second trial would probably be a farce. Now you have to bear in mind that there is somebody else to be considered besides the prisoner, that the administration of justice is not a mere game, like a hunting game, in which it it is going to be a question of giving the hunt a certain amount of sport, and a certain amount of licence to add to the sport, and so on. You have got to consider the requirements of the community; you have got to consider the question of maintaining the administration of justice intact, and this is the way in which you proceed to do it! The procedure you propose is neither called for nor would it in any way improve the administration of justice. It would cause immediately, wherever there is a conviction, the friends and relations of the prisoner to be appealed to for further funds to carry on the appeal; and would, in fact, bring pressure upon those relations and friends, or some mother or sister, as the case may be, to find the necessary funds, and you would only be adding to their grief and adding to the pain and penalties which convictions bring to the relatives of the prisoners if you give this appeal, instead of being 30 merciful, which I have no doubt whatever the appeal was originally intended to be. It is said with reference to the revision of sentences, that the sentences are sometimes very severe and sometimes the other way. That may be so. All human justice, all human tribunals, must be comparatively infirm and open to mistakes of that kind. But may I remind the House that the Legislature itself is responsible for the great variety of sentences, and for the simple reason that it is recognised that there are great diversities of cases, and that the cases that come before the judges require that sometimes very light and sometimes very heavy sentences should be given. For instance, take the crime of manslaughter. There may be—and in fact I have seen—trials for manslaughter in which prisoners have been found guilty and sentenced to a day's imprisonment, that one day including the first day of the Assizes, and the effect has been that the prisoner leaves the court at once. Why? Because the feeling of the judges is that, although the prisoner has committed the very serious offence of manslaughter, there were circumstances connected with it which deprived it of its enormity. You may have another case of manslaughter in which a man may be committed to imprisonment for life. Yet both these cases may be justified by results. The same also in the case of embezzlement. You may have a case in which a very small offence has been committed by some poor boy who has received money and covered it by a false entry. That case may be dealt with very lightly by the judge. On the other hand, you may have a case in which embezzlement has been carried on for a considerable period and to a considerable amount. The Legislature deliberately fixes certain maximum sentences and certain minimum sentences to give the margin between which a judge might act. And does he do that? We must trust the judges. Hon. Gentlemen speak of the enormous sentences, and so on, but they forget that they are not in a position to judge of the sentence unless they have the same opportunities that the judge has. Many offences may seem to be pretty much the same in their main, virtues, but on examination may be entirely different. The law has given to 31 judges a tremendous amount of discretion. We must trust the judges. I grant that there is a great deal of room for limiting the discretion which is placed in the bands of the judges for classifying the offences, so that the margin within which the judges have to decide may be very much reduced. I cannot myself see why some Bill could not be brought in restricting the decision of judges in regard to these matters. It has been said that some principles should be laid down in the Court of Appeal for the guidance of the judges. Why could not this be done by Act of Parliament? Why could not that be done by a small Bill restricting the limits and the boundaries with reference to which judges may act? If that were done there would be no discrepancies as are pointed out. It seems to me that there is no very great ground for complaint as to the manner in which the duties are discharged by the Home Secretary. It is said that the Home Secretary is not the proper person, and that he ought not to have this kind of thing thrown upon him. But the point is: has it worked well? There seems a wonderful tendency in the present day to have everything put into something like a symmetrical form, though the institutions in connection with this country are in themselves full of inconsistencies and anything but symmetrical. It may be that logically an appeal to the Home Secretary cannot be supported, but I venture to submit that so far it has worked remarkably well. It may be said that it is incongruous when the Home Secretary is appealed to on the ground that the evidence has not justified the conviction, or that circumstances come out that show that the verdict was wrong, that he should exercise the prerogative in favour of mercy by granting a free pardon, and that that is an insult to the individual. Well, I venture to differ in that respect. There may be some incongruity, no doubt, in the fact that the man is pardoned for what he really did not commit. But I cannot help thinking that in cases in which the Home Secretary is satisfied that a man has been improperly convicted, or where subsequent evidence proves it, and a pardon is granted upon the ground of innocence, there should be remitted to the Court of Criminal Cases 32 and Crown Cases Reserved the power to endorse such decision and, so to speak, to clear the prisoner of the offence. There need be no difficulty with regard to that. Well, Sir, I have looked through the Bill, and it seems to me to be exceedingly complicated. The machinery established is complicated, and the Measure, so far from settling any point, only adds to the difficulties. Indeed, I venture to think that, so far from being an improvement, it will be exactly the reverse. The Bill is mischievous to a very considerable extent, and I therefore decline to vote for it.
§ *SIR JOSEPH F. LEESE (Lancashire, N.E., Accrington)
I should like to express generally my warm sympathy with the principle of the Bill. I cannot, I am sorry to say, agree with much that has been said by my hon. and learned Friend the Member for Harrow, and especially in that part of his speech where he seemed to suggest that because criminals have the right to be tried by their peers that ought to suffice. I venture to submit to you, Sir, that it is where those peers have gone wrong, either by misdirection or by improper inference drawn from the facts, that a Court of Criminal Appeal would be extremely valuable for the purpose of protecting the interests of prisoners who may be improperly convicted. I desire also to say a word in regard to the remarks of the hon. and learned Member for Epsom. He said that the House of Commons is taking upon itself a great responsibility in sending down for second trial a man who has been convicted of a capital offence. If there be any case where a man ought to have a right to appeal, surely it is in that case where his life depends upon it. That is the very strongest reason why there should be this Court of Criminal Appeal, because of all the conditions we can conceive of there is none so terrible as the case of one under sentence of capital punishment for a crime of which he has not been guilty. With regard to the revision of sentences, I may speak with some authority, having been now for five years Recorder of Manchester, where between 200 and 300 prisoners are tried every year at the City Quarter Sessions. I should be quite 33 satisfied if there were a competent Court established to revise the mistakes which I might make, and no one feels the possibility of making mistakes more than those who are put into such responsible positions. Judges, like the rest of mankind, are only mortal. I should be very glad, then, that there should be some Court to revise, any mistakes I might make. At the same time, I value very highly indeed the present power which the Home Secretary has got of revising sentences. I do so for this reason: it is a much cheaper and a much easier plan to have a sentence revised by the Home Secretary, than to incur the necessary legal expense of an appeal. A simple petition is sent to the Home Office, and if the sentence is too high it is reduced, and I should be very sorry to lose that very valuable procedure. I feel satisfied that for every one sentence which the Criminal Court of Appeal would reduce, the Home Secretary, under the present system, would reduce half a dozen. Some of us who have acted as criminal judges have already before us cases of appeal which are criminal cases, and it seems, therefore, inconsistent that, whereas there are already criminal cases of appeal, from Magistrates to Recorders and Chairmen of Quarter Sessions, that the same principle should not be accepted in respect of appeals from Assizes, and such a Court of Appeal as is suggested by this Bill. For these reasons I desire to express my approval of the principle of this Bill. As the speeches that have been delivered so far in the Debate, both for and against this Measure, have come from members of the legal profession, I hope it will be permissible to say one or two words in support of the Bill. I give it my cordial support, because I think that such a Bill is good for this country; but, with all due respect to my hon. and learned Friend who introduced this Measure in a conspicuously able speech, I venture to think that the same object might be reached by a much smaller and more simple Bill, a Bill which I would suggest should consist of one Clause, worded as follows—Whereas it is essential that only just sentences should be passed upon persons charged with crime; therefore be it enacted that in future, before any lawyer becomes a judge, he should pass six months' hard labour in one of Her Majesty's prisons.34 I venture to suggest that if some obligation of that kind were enforced, if judges were compelled to make themselves acquainted with the character of the punishment they inflict upon the criminal, there would be an end, both in this country and in Ireland, to the monstrous sentences now passed in the Courts of Law. The right hon. and learned Member for Tyrone made a very able and very eloquent speech in favour of a Court of Criminal Appeal in Ireland, and he instanced as a ground for such a Court the severe sentences that have been passed on persons charged with political offences. Well, Sir, I agree with all he said in that connection, but he omitted to state what I think is an even stronger ground than such cases for a Court of Criminal Appeal in Ireland, and it is this: It is well known—I think it will scarcely be denied in this House—that the convictions in Ireland for political offences were secured, not by what is called a fair trial by prisoners' peers, but by means of juries deliberately and systematically packed. Secondly, when you have the law in Ireland prostituted as it has been in that manner in political cases, I feel convinced that that in itself makes out an unanswerable case for the constitution of some such Court in Ireland. Then, again, I contend that the sentences passed in Ireland by political judges on men charged with agrarian offences are altogether disproportionate to the nature and character of these offences. But I will say that that also applies here in England in connection with offences against property. If you analyse the sentences that judges pass upon men charged with injuring property and the sentences on brutes and human monsters who amuse themselves by brutally torturing their wives, then you find a scandalous discrepancy. I maintain that it is something that any right feeling man should be ashamed of in his country's laws; and it is shameful when you find a man sentenced to 12 or 18 months' hard labour for attempting to take a few shillings or a few pounds worth of property which does not belong to him, and when, on the other hand, you read in the Press of a human brute getting a few weeks' imprisonment for half killing his wife, or turning his daughter into the street. I think, therefore, for these reasons, these 35 are the strongest possible grounds—grounds that have not been met in the speeches on the opposite side—why this Bill should not obtain a Second Reading. The hon. and learned Member opposite, in his interesting speech, expressed a fear that if this Bill became law it would practically put an end to capital punishment. That is one reason why I heartily support the Bill. I believe that the worst use you can put a man to is to hang him. I go further, and assert that you cannot prove in the criminal history of any civilised country that the barbarous punishment of hanging has ever reduced the crime of murder. On the contrary, I assert that where you find capital punishment abolished, as, for instance, in the State of Wisconsin in America, you have a remarkable diminution of the greatest of crimes—the crime of murder—as compared with what occurs in those States where they have too closely followed the English example and retained this practice of carrying out the capital sentence. Then, again, in Switzerland, where they have not had an execution for 25 or 30 years, that crime has almost disappeared. [Mr. SPEAKER interposed on a point of order.] Yes, Mr. Speaker, that is always the case when a layman ventures to discuss questions which ought to be left in the hands of the lawyers. However, I heartily support this Bill, for the reasons I have adduced, and I sincerely trust that the Home Secretary when he comes to reply will not be influenced by speeches from the other side, but will listen to the sound reasons of logic and justice that invariably come from these Benches.
§ *MR. A. K. LOYD (Berks, Abingdon)
Last year I felt bound to vote for a Second Reading being given to a Bill the sole object of which was to give effect to the recommendations of Her Majesty's judges in favour of a Court for the review of sentences and to aid the Home Secretary and Lord Lieutenant in certain cases, but in doing so I venture to express serious doubts as to whether the inequality of the sentences which judges thought desirable could be dealt with by legislative means, and I respectfully expressed the hope that certain safeguards might be introduced at further stages of that Bill. Now, Sir, on 36 this occasion we have a Bill identical in title, but substantially of a totally different character, because that portion of the Bill which is devoted to the giving of effect to those recommendations of Her Majesty's judges is relegated to a very inferior position, and prominence is given to proposals for giving powers of appeal in all criminal cases. The very reason that led me on a former occasion to vote for the Second Reading of a Bill to give effect to the recommendations of Her Majesty's judges strongly influences me to oppose the Second Reading of a Bill, which practically runs counter to the recommendations of those high authorities. The hon. Member for Oldham tells us this change is brought about by the adoption of 59 Amendments proposed by him to the Bill of last year. On the other hand, in the memorandum prefixed to the present Bill, the new departure is accounted for by saying that this Bill is a reproduction, with slight alterations, of the Bill brought in by the then Attorney General (Sir Henry James), the Solicitor General (Sir Farrer Herschell), and the Home Secretary (Sir W. Harcourt), in 1883, so that the Amendments now incorporated in the Bill have been before the country for fifteen years. If that is the case, they were before Her Majesty's judges when they made the recommendations contained in the Report of July, 1892. If we turn to Page 9 of that Report we find, under the heading of "Court to Review Sentences," the statement that "a pressing question is whether there should be a Court of Criminal Appeal, and what jurisdiction it should exercise." That shows that the attention of Her Majesty's judges was not merely limited to the revision of sentences, but to whether there should be a Court of Appeal, and what jurisdiction it should exercise. The whole matter being before them, it is certainly most noticeable that the judges should limit themselves to proposing that a Court should be established for the revision of sentences, on the ground that there was great diversity in the sentences passed by the different Courts in respect of offences of the same kind, where the circumstances are very similar.It is much to be desired," said their Lordships, "that this diversity should, if possible, be avoided.37 And it was to carry out that purpose that their recommendations were made and their Report was drawn. It does seem to me a very remarkable thing that the very highest authorities in this country on the administration of criminal justice should have intentionally and studiously refused to adopt and recommend to the Legislature the provisions which were contained in a Bill which had been before the country for something like 11 years. How is it sought to justify this proposal to add to the recommendations of the judges? It is put forward, not only by the mover of the Second Reading of this Bill, but also by the hon. Member for North Tyrone, that it is a painful, almost a revolting, fact that in this country, whereas a man who brings a paltry claim in a Civil Court can take his claim to a Court of Appeal, yet, in a matter affecting life and liberty, there should be no appeal. That is a most plausible way of raising sympathy in favour of this proposal. If the method of conducting criminal trials was in any way similar to the method of conducting civil actions, it would be, no doubt, a very grievous anomaly that in one case there should be an appeal and in the other no appeal. But is that the fact? Is it not well known to those familar with the method of conducting criminal procedure that not only is every presumption of law or fact on the side of the accused, but every matter of favour, every point quite apart from legal presumption, is strained in the interest of the prisoner. The hon. Member for South Mayo made reference to packed juries. I have never known a packed jury, and I am not competent to enter into an argument based on their existence. I can only speak of criminal justice in this country, and after considerably over 20 years' experience I do most unhesitatingly say that in the administration of criminal justice in the Assize Courts, and in the Session Courts, of this country, not only every presumption of law, but every matter of favour, every indulgence, is extended to the prisoner. Therefore, I say that to take these two entirely different methods of civil procedure and criminal procedure, and to point to the fact that there is an appeal in the one case and not in the other as a conclusive argument in itself for some readjustment in those 38 matters in which there is no appeal, is, to my mind, not a just and adequate way of stating the question. I believe those who have taken the trouble to study the administration of the criminal law in this country must have formed the opinion that it is not a result that has been unadvisedly, hastily, or thoughtlessly brought about. It is the growth of centuries, and has been modelled and built up by judges of the greatest eminence and integrity, and judges whose laborious and conscientious attention to the interests of the accused no one who has had the honour to sit under them can over estimate. If that is the case, I protest most strongly against reformers coming forward as if the criminal administration of this country was a matter which had hitherto escaped attention, and as if they were able to put right a system which had been allowed to go very much by chance. If I mentioned the names of Bramwell, Blackburn, Keating, and Byles, I should be only mentioning a few of those great men whose names should be sufficient to give pause to those who desire these changes. It is a very curious thing that in a matter so important as the proposal to revolutionise our criminal procedure, no statistics of miscarriages of justice, no particulars are offered. We are simply told of the existence of this so-called anomaly of there being an appeal in civil cases and no appeal in criminal cases, and informed that that is a sufficient reason for us to embark upon a course of purely speculative innovation. I do not wish to underestimate the importance of the fact that the Bill of 1883 had the support of high authorities, whose names are on the back of it. They were perfectly right, from their standpoint, in giving the sanction of their high authority to a proposal of that sort and submitting it to the judgment of the House. But, on the other hand, I feel entitled to point to the fact that these proposals were before the country all that time, that they were before the judges in 1892, and that they still remain in the mere condition of proposals. I hope the hon. Member for Bethnal Green will not take it amiss if I enter a respectful protest against the concluding remarks of the speech in which he proposed the Second Reading of this Bill. He pointed out that there 39 were on the back of the Bill the names of certain Members who were eminently qualified to speak for the labouring classes of the country. Now, Sir, I cannot fee accused of under-estimating the importance of those names; I consider they are those of men entitled to the greatest honour, on account of their native force of intellect and their power in the exposition of their views upon the important labour questions which have been entrusted to their vigilant keeping. But I do ask this question, and I ask it most earnestly: What have labour questions got to do with the question of whether we are to have a Court of Criminal Appeal? The administration of criminal justice is a matter which has hitherto been regarded as too sacred to be in any way brought down to the level of an attempt to court popularity in any quarter whatever. If in voting against the Second Reading of the Bill I am taking an unpopular side, I do so on account of my sincere veneration for the great judges who have built up our criminal practice and procedure, and my veneration for our system of criminal justice as being devised to safeguard in every way the interests of the accused.
§ *MR. D. BRYNMOR JONES (Swansea District)
I desire to say a few words in support of this Bill. My hon. and learned Friend who has just sat down appeared to be somewhat oppressed by the weight of authority on the subject, and appears to think that the opinion given by the judges in the year 1892 is the conclusion of the whole matter. I have the highest respect for the judges of the land, and certainly attach the very greatest importance to their views upon any practical matter concerning the administration of justice in this country; but I am bound to say, speaking in this House, I should not like even the great respect I have for the judges to conclude the matter as far as I am concerned. My hon. and learned Friend appears to have forgotten that there have been Commissions, some of them containing judges and administrators of the law, who reported on this subject so far back as somewhere in the forties. The Criminal Law Commissioners reported in favour of a change in the direction pointed out in this Bill, and as far back as 1858 a Measure embodying a suggestion not very dissimilar from that contained in 40 this Bill passed through this House by a considerable majority; and, again, in 1879, the Criminal Code Commissioners recommended that a new trial should be granted on certain conditions in criminal cases as in civil matters. Therefore, I venture to say that the argument of my hon. and learned Friend, founded on authority, has not the weight he attaches to it if it is only the opinion of the judges who gave their views in 1892. I think my hon. and learned Friend would have done better if he had answered the question, which, after all, lies at the root of the argument in favour of the Bill, and that is, Why the verdict of a jury should be treated as fallible in a civil action and as practically in fallible, save for the intervention of the Home Secretary, in regard TO criminal prosecutions? Why, for instance, supposing a man is indicted at the Central Criminal Court for libel, should he not, if he is convicted, have an opportunity of moving for a new trial? Yet, if he is sued in a Civil Court and the jury find a verdict against him for £1,000 damages, he may move for a new trial in the Court of Appeal, and then go, if he likes, to the House of Lords. That is the question put in a concrete way. This Bill seems to be regarded somewhat as an innovation on the principles of our common law. It is, no doubt, true that during six centuries our system of jurisprudence has remained in its main outlines the same, while considerable divergence of practice and procedure has resulted from historical causes between pleas of the Crown and common pleas, but it is entirely wrong for hon. Gentlemen to assert that appeal in criminal cases is an innovation. There has always been an appeal on matters of law, and latterly we have had an appeal by means of cases stated where an opportunity is afforded of bringing about a new trial. Again, supposing an indictment at the Central Criminal Court was removed by writ of certiorari to the Queen's Bench Division of the High Court, and tried there, the person convicted might move for a new trial. I cannot understand upon what sensible basis it can be said to be right to give a man an opportunity of moving for a new trial, if convicted in the Queen's Bench Division, and not give him the opportunity when convicted at the Central Criminal Court. I might 41 give several other illustrations in support of my proposition that there is nothing novel in the suggestion that there ought to be appeal by way of a new trial in cases of pleas of Crown on criminal matters. As a matter of mere logic, if we approach the subject from a theoretical point of view, the supporters of this Bill should obtain an easy victory, and, so far as I have heard the arguments on the other side, I claim that logical victory. But, at the same time, I am willing to admit that our legal system is an organised growth; it is not a system produced at one time by any jurist. It has grown and grown and grown; it is a system which has developed and which has succeeded in doing justice, partly owing to the elasticity of our common law system, partly because our judges have been able to mould the doctrines of the law to suit the changed conditions of the country and the people, and partly because Parliament has, on opportune occasion, ever intervened in order by statute to effect the desired changes. Our position is that, under modern circumstances, the time has come when we ought to take a further step to assimilate in a very considerable degree the trial of civil and criminal actions. Certain objections are urged against that course, and, to my mind, the most serious is that there might possibly be appeals in every case, that there would thus be a large burden of work thrown upon the Court of Criminal Appeal, or any Court that might be created, in order to carry out the principle of this Bill. There might be some practical difficulty at first in regard to that matter, but there are two answers to the objection. The first is that the Bill itself provides certain fairly efficient checks upon the multiplicity of appeals. As I understand the Bill, except in capital cases, there can be appeal only by leave of the Court, and this check would minimise the inconvenience which it has been suggested would arise, and would prevent any real congestion of business, even if the Bench were not enlarged beyond its present extent. The second check is that, though there might at first be a large number of applications to appeal, yet in time the whole system would become a matter of precedent, and the friends of prisoners, who might con- 42 sult a solicitor with the object of making an appeal, would be advised not to ask the Court for leave, because it would be refused, and they would be throwing money away in the attempt. Another argument which, I confess, I do not quite fully appreciate is that there would be a diminution of the responsibility of the Court of first instance—if I may use a term which is not exactly correct. The suggestion appears to be that judges and juries at the Assizes, and Chairmen of Quarter Sessions, would feel their sense of responsibility diminished if they thought there might be an appeal. I cannot understand that argument when it is put to me as a practical man acquainted with the methods of our Courts. Surely, if that argument is valid in regard to criminal cases, it is valid in regard to civil cases, and, therefore, proves too much. Has it ever been suggested—and I see before me many hon. and learned Gentlemen concerned in very important cases in the Civil Courts—has it ever been alleged that judges of the High Court, or the judges of the County Courts, ever felt the sense of responsibility cast upon them diminished by the fact that there might be an appeal against their judgments?
§ THE ATTORNEY GENERAL (Sir RICHARD WEBSTER,) Isle of Wight
Yes, but I do not say so of County Courts.
§ *MR. BRYNMOR JONES
My experience points to a different conclusion. I may take a case where a counsel or solicitor says there might be an appeal. The effect on the judge is not to diminish his sense of responsibility; on the contrary, I have known instances in which a judge, when he saw a case was of very far-reaching importance, and that there might be an appeal, tried it, I will not say in a different way, but with a care and deliberation that were significant to everybody in Court. Another argument urged against this Bill is that there is practically no grievance to be remedied by it. I suppose that means, and, indeed, it has been said to-day, that there are practically no innocent persons convicted at our Assizes or Quarter Sessions. Too great praise cannot be given to our Judges, Chairmen of Quarter Sessions, 43 and Recorders, for the way in which they try criminal cases, and I hope nothing I say will be supposed to hint at any want of skill or breach of duty on their part, or to signify that they do not bring adequate ability to the discharge of their important duties, but I am by no means sure that innocent people are not convicted, or that guilty people do not escape. On that point I have been unable to get any statistics of ordinary cases, but the late Sir Fitzroy Kelly, a great advocate of improvement in our criminal procedure, obtained in 1844 a return of the result of the cases of misdemeanour removed by certiorari into the Queen's Bench, and that return showed that in one-third of the cases the Court set aside the verdicts, in another third the judgment was altered, while in the remaining cases, on the motion for a new trial, the rule was refused either at once or on argument. This return, together with my own experience, convinces me that in a considerable number of cases the verdicts given at certain Quarter Sessions, and, perhaps, at Assizes would be set aside on a new trial if that mode of procedure were open to accused persons. The last objection urged against this reform is that the exercise of the Secretary of State's power sufficiently meets the case. But there is some confusion of ideas about the power of the Secretary of State for Home Affairs. I have heard speeches in this House in which it was said that the Secretary of State performed the duties of a Court of Appeal. I do not find that view expressed in any books on our constitution, and I do not think it is the case in practice. Our idea of a Court of Justice is a tribunal that sits in public, but the Home Secretary does not hear parties in the sense in which counsel or parties are heard in our ordinary Courts; I do not understand that he hears evidence on oath. But on this point I need not rely upon any authority or any opinion formed from books on constitution; law. The present Lord Chief Justice, in the Debate on the Bill in 1883, said—The notion that the Secretary of State is a Court of Appeal is entirely unfounded. That the Secretary of State should be called upon to be a Court of Appeal for hearing applications for the new trials, without power of granting them, besides advising the Crown in 44 the exercise of its prerogatives, is a position in which no Minister ought to be placed, because it involves duties which it would be impossible to expect him adequately to perform.Surely this argument, founded upon the power of the Home Secretary, is answered, from a theoretical or constitutional point of view, by that quotation. But, in regard to a recent case, I may point out how unsatisfactory, from the point of view of the accused, is a mere pardon, or release, granted by the Secretary of State. The case of the young man named Spriggs was recently tried in one of the North Wales counties. It was tried in the most painstaking manner by an experienced judge; the defence was a very elaborate alibi. No fewer than 12 witnesses were called for the defence, but the jury found the defendant guilty, and he was convicted, but, after a lapse of some time, pardoned by the Secretary of State. [The SECRETARY of STATE for the HOME DEPARTMENT: Not pardoned.] He has been released. I am not complaining of the action of my right hon. Friend, to whom I am personally indebted for the care with which he investigated certain cases which I have brought before him, and I am not saying one word against his administration. But what is the position of this convicted person? All his life he has recorded against him the judgment of one of the highest Courts of the land, and a verdict given against him by a jury of his countrymen. He might be entitled to say that what he demanded was not simply to be released from gaol, but that the whole of his case should be reinvestigated before some Court of Criminal Appeal. I need not trouble the House further. Notwithstanding certain practical difficulties concerned in the alteration of the law, I can only recommend the House to permit this Measure to be read a second time.
§ *MR. J. LAWSON WALTON (Leeds, S.)
My hon. Friend who has just spoken has suggested that this legislation is framed in the interests of accused persons, and Members on both sides of the House have no doubt recently received a pamphlet issued by the Humanitarian League, in which support for this proposal is sought upon similar grounds. 45 Sir, anxious as I should be to favour any scheme with so laudable an object, I cannot find either that the interests of justice or the interests of accused persons will be advanced by the present proposed legislation. My hon. Friend the Member for Swansea has argued in favour of this Bill by reference to existing anomalies in the criminal law, but I cannot conceive of any project for the reform of our criminal law that might not find an argument in some of the various anomalies which are still to be discovered in our ancient law. I have waited to hear whether any supporter of this Bill would propound the view that the right of appeal is a right possessed by every member of the community by natural law, or the law which necessarily belongs to a civilised community. I do not gather that such a proposition has been advanced, and, therefore, the right of appeal which is not given in all cases, whether civil or criminal, is a right only accorded where the interests of justice demand that it should be given. To justify the present proposal it would be necessary to satisfy the House that the administration of justice makes it essential that some such right should be granted. It might be said that in civil proceedings the establishment of a right of appeal might be justified on three grounds; in the first place you exercise a check on the conduct of the judges; in the second place you enable errors of law to be corrected; and, in the third place, you obviate any unfortunate result of errors of fact. But it cannot be argued that you need to establish a Court of Criminal Appeal in order to ensure the serious and efficient conduct by the judges of this country of criminal proceedings. If there should be any misconduct on the part of a judge charged with the administration of criminal law there is an ample remedy in the functions discharged by the Secretary of State for the Home Office. It cannot be argued that this Bill is necessary in order to prevent errors of law on the part of the tribunal existing. The existing machinery of a writ of error, or an appeal to the Court for Crown Cases Reserved on a case stated, affords ample means of keeping Courts of criminal procedure within correct legal limits, and I am sure I shall be borne out by my hon. and learned Friends familiar with the administration of the law when 46 I say that the difficulties arising owing to the construction of the Statutes are so few, and the administration of the criminal Courts, in so far as it involves questions of criminal law, so easy that no practical necessity can justify the present proposal. Therefore the sole ground upon which the proposed legislation rests is that there should be a Court of Appeal for the purpose of correcting errors of fact. We are all aware that there is nothing more difficult than to correct errors of fact. So difficult is it in ordinary civil procedure that the Court of Appeal, within the recollection of some of us, came to the conclusion that they would treat as practically conclusive the decision of every jury on any issue of fact which might be submitted to them for consideration, and so rarely has a Court of Appeal consisting of judges disturbed the view of juries with regard to decided issues of fact, that, practically, and in the vast majority of cases, no Court of Appeal ever undertakes the responsibility of so serious a step. But you now propose to create a tribunal of appeal for reviewing the determinations of juries on questions of fact, armed with this knowledge, that you have a tribunal so conscious of its own incompetency to determine such a question, that it has become a formula of our Courts that no such attempt succeeds. The question then arises whether it is worth while to seek by means of a Court of this kind, judicially constituted, to disturb the determination at which juries have arrived after a very careful and painstaking investigation of the issues submitted to them for consideration. It has been said, and I feel the force of the analogy, that you allow, where the questions involved are almost trivial, an unlimited right of appeal, while in criminal cases, where the issues are so important, you allow no such right. The answer is that in criminal cases the trial is, in a sense, itself an appeal. If you compare the system of procedure in its civil aspect with the system in its criminal aspect, you will find that in civil procedure the issue is practically defined for the first time, and evidence is led for the first time when the case is heard. In such a system the equity and fairness of allowing some review with the object of correcting a wrong step is strong and almost irresistible when put forward in 47 the shape of a demand. But in criminal procedure there are various preliminary investigations with the very object of giving finality to the trial. It would, therefore, be a very serious step for this House to interfere with the finality of that procedure. It would be mischievous in any system if there were no means of preventing error, and, if no such means existed, and the proposals of this Bill were the only method of correcting mistakes, the argument in its favour would be conclusive; but you have a method of procedure, and all that this Bill proposes is to substitute a different method, a different procedure. You have now the operations of the Home Office. It may be said that the Home Office does not exercise any appellate function and, theoretically, I do not know that it is necessary for me to contest that proposition. But the Home Office constantly does examine into the case which has been made against a prisoner, and the suggestions made in his favour, and does in effect exercise an appellate jurisdiction. In my own experience, I can recall a case in which a man, who was convicted of murder and sentenced to be hanged, was given a free pardon at the instance of the Home Secretary for the time being, notwithstanding the strong opposition of the judge. The Home Secretary was able to appoint a most irregular tribunal, but one which acted with great efficiency. He sent down a Commissioner to the gaol, who conducted an inquiry and heard statements which could not have been admitted as evidence in a court of law, and arrived at the conclusion that an innocent man had been convicted. If that man had been brought before the proposed new tribunal there is no doubt but that his sentence would have been carried out. I am quite aware that the prerogative of mercy would still rest with the Home Secretary, but if a prisoner appeals to the Court of Appeal the hand of the Home Secretary will be temporarily stayed, and if the sentence is confirmed by the Court of Appeal his hand will be finally stayed, because the Home Secretary will feel that, as the conviction rested not merely on the evidence adduced at the trial, but on the investigation by three Judges, it would not be proper for him to advise Her Majesty to remit or alter the sentence. If you erect this Court of Appeal, which can 48 only be enlightened in accordance with the strict rules of evidence, you will do so at the cost of a procedure infinitely more elastic, more subtle and efficient in its administration, and infinitely more in the interest of the accused person. Let me deal with one or two of the objections to this Measure. The first is that if you erect a tribunal of appeal on the issue of fact, and call upon the existing Courts of Criminal Law to discharge their functions with the knowledge that their errors may be corrected, you certainly diminish the sense of responsibility under which those Courts act. You have a jury to determine whether the accused is guilty of murder or not. How often are they warned, how often are cautioned, that the life of the prisoner depends upon the care with which they conduct their deliberations? That feeling of responsibility undoubtedly makes those proceedings have a weight and deliberation which would not belong to them if the jury felt that any errors they might commit would probably be corrected by a Court of Appeal. Another objection to this Bill is that it would make it exceedingly difficult to carry out a sentence of death upon prisoners who had appealed under your new system. Let me bake a practical case. A man has been convicted of murder, and insists on appealing. This man, under sentence of death, is brought up; he makes a pathetic appeal, and it may be that the Court may direct a new trial. He is tried again, and the case is heard and re-heard, and eventually the sentence of death is ordered to be given effect to. I submit that these protracted trials, this lack of finality in the execution of the criminal law, will prove a great practical difficulty in its administration and afford a very strong argument against this proposal. I ask the House not to treat this subject as if it were a question whether we should or should not enable a review of a criminal trial to be undertaken by some other tribunal, but that they should consider whether there is a case made out for the substitution of an appellate tribunal consisting of Judges for the machinery which is at present at the disposal of the Home Secretary, and which has worked with entire satisfaction. I do not know of a single case in which it can be said that the action of the Home Secretary in regard to matters brought 49 under his consideration has been open to serious objection; the system has worked satisfactorily for many years, and I therefore ask the House to reject experimental legislation of this kind.
§ *THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Sir M. W. RIDLEY,) Lancashire, N., Blackpool
The Measure which the House is now asked to consider is, as was admitted by the hon. Gentleman who introduced it, a very different Measure to that which he introduced to the House last Session. On that occasion I assented to, and in fact voted for, the Second Reading of the hon. Gentleman's Bill, because I thought it was a Measure which might be fairly considered with a view to securing a Court which might be advantageous for the revision of sentences other than capital sentences, and also to securing, either through the means of that Court of Appeal, so called, or through the Secretary of State, and the function of the Home Office itself, some means of getting a new trial under special circumstances. The Bill which is now introduced by the hon. Gentleman goes a great deal beyond that. I understand that he has included in the present Bill, which is, in fact, a very near copy of a Bill hitherto known to the House under very distinguished parentage, a provision whereby the Secretary of State for the Home Department might be enabled to send to the Court of Criminal Appeal constituted under the Bill, and in that way secure a new trial for a case which appeared to him to demand such treatment. But, Sir, the real question before the House is a far more important one than that. Those proposals had the assent of the great majority of Her Majesty's Judges; they had a great weight of authority behind them; but at the present moment. I do not think that the hon. Gentleman will say that there is anything like that authority behind the proposal that there should be an absolute right of appeal in all criminal cases in this country. I am sorry that such a very important question as this has been 50 debated in so thin a House. This is one of the most important questions dealing with the criminal law of this country ever submitted to it, and it ought to have been most seriously considered. It is an entirely new departure in our criminal law, and it is, moreover, not a vague and general proposition. I venture to pay a compliment to the hon. Gentleman if he is responsible for the drafting, for it is not an ill-considered scheme; on the whole, it is a well-considered and well-drafted Bill. I flunk the scheme submitted to the House is a practicable and workable scheme, and, if the House will accept the Second Reading, although there are, no doubt, considerable alterations which, in point of principle, might be made in it, it is a scheme of a practical and comprehensive character for instituting a completely new departure in our criminal procedure. I think, however, in the first place, that such a Bill as this ought not to have been introduced except on the responsibility of the Government. I do not say that a Resolution on the subject might not fairly have been introduced by the hon. and learned Gentleman, or that he is going beyond his rights in introducing a Bill to the House, but what I say is that it is a serious matter for the House on a Wednesday afternoon to vote in favour of the abstract proposition embodied in this Bill when they really have before them a scheme which revolutionises the criminal law of this country. It is rather difficult for anybody who has the honour to occupy my position to speak so freely about the proposals of this Bill as those who have not that responsibility. It has been said in more than one quarter of the House to-day that a very serious responsibility attaches to the Home Office in dealing with the exercise of the prerogative of mercy. Very likely most people are of opinion that it is in capital cases especially that the great difficulty arises. No doubt that is so, but there are responsibilities also in connection with many other cases which from time to time come before the Home Office for revision of sentence or alteration of verdict to which the greatest responsibility attaches. Therefore, when any Measure 51 is proposed to this House which appears, at all events, to afford any relief from that responsibility, I think that anybody occupying my position must necessarily view the situation in a somewhat different light from those who can more freely criticise the action of the Home Department. I think the Secretary of State for the time being must have some bias in favour of any argument which can be adduced for putting upon a better footing, if it is possible, and if it can safely be done, the revision of sentences and the consideration of verdicts. With reference to dealing with the inequality of sentences, it is said that I expressed my opinion last year, by voice and vote, in favour of the hon. Gentleman's Bill, because I thought it afforded a basis for the consideration and the satisfactory settlement of the revision of sentences. It is perfectly true that there were sometimes alarming inequalities in the sentences imposed in our Criminal Courts; and considering also that different Judges took different views of offences, it must be evident that it is advisable—if by any means it could be brought about—to establish general principles, or to have a general standard set up in regard to sentences for certain criminal offences. The hon. Member for the Harrow Division of Middlesex said that Parliament had itself enabled excessive sentences to be dealt with. That is so, and it is absolutely necessary, as the hon. Gentleman has said, with reference to the very different crimes which may be committed under the name of manslaughter—some of them deserving not more than a sentence of a week, and some of them running very close to malicious and wilful murder—but at the same time I do not think it can be denied that there is a general feeling that it might be a good thing if there was some public means—some legal and official means—of reducing excessive sentences given in the Criminal Courts. The secrecy of the Home Office in dealing with the cases brought before it has been referred to; and therefore there would be the further advantage in having some legal and efficient means for revising sentences that the public would have the 52 satisfaction of the publicity which would attend such a dealing with the sentences given in our Criminal Courts. But there are difficulties on the other side. I think the House ought to consider what has been said to-day about the difficulty of constituting a Court such as this, which would not have the power of increasing as well as reducing sentences. The logical object of a Court of Criminal Appeal is, when the facts were properly brought before it, to deliver the sentence or verdict which ought to have been delivered in the Court below. How, then, can you resist the logical conclusion, painful though it may be—and I am not advocating it now—that if a Court is to review a criminal sentence, and, if necessary, reduce it, it ought also to have the power to raise an inadequate sentence. The great argument in favour of constituting such a Court of Appeal is the great injustice of some of the sentences, and the inequality of others—for there are certain gentlemen who are well known to this House, who have been notorious for giving sentences below the standard of the general majority of the judges; and how could we logically deny to such a court the power of raising some sentences as well as reducing others? I agree that such a proposition is in itself most distasteful. Nobody in arguing in support of this Bill really for a moment wishes that when a prisoner has been found guilty by a jury and sentenced by a judge he should have, either through his own action or the action of somebody else, his sentence made worse than it was in the first instance. The action of the Home Office in such cases as are brought before it is one of mercy alone; it is not in the power of the Home Office to do other than diminish a sentence imposed. As has been pointed out by my hon. and learned Friend who has just sat down, there are many occasions on which the Home Office is able to act, and rightly act, upon evidence that could not properly be brought before a court of law, which is bound to act in accordance with the rules of evidence. I venture to put before the House a few of the difficulties in the way of constituting a court for 53 the revision of sentences, but I gave my assent last year to the consideration of such a scheme, and if this Bill were confined to that proposal I would not be found in opposition to it, nor would I oppose it if it proposed to give powers to the Home Office or the Court to have a new trial where a verdict was unsatisfactory. I have taken some pains to look up during the last year or two the number of cases in which it has been my duty to advise the exercise of the prerogative of mercy, in consequence of the verdict, apart from the sentence, being unsatisfactory, and I have been surprised to find that in 1895 and 1896—the two years I have taken—there were in the first year eight and in the other nine such cases, and those cases comprised instances in which the judge, or the chairman of Quarter Sessions, or the recorder, who had imposed sentences, made communications to the Home Office that they were not satisfied with the verdicts of the juries. I daresay I might take away half of those cases as cases which were so brought before the notice of the Home Office. With regard to the other cases, the prerogative of mercy has been exercised in favour of persons who would not have been able to take—who would not have had the means of taking—action under the Bill now before the House; and in dealing with these cases I have acted upon fresh facts and evidence which would not be specifically legal in a court of law. At the same time, I say there were three or four cases during the last year or two which I can well conceive might have been properly made the subject of a new trial. One, I think, was alluded to by the hon. and learned Gentleman who spoke last but one, in which the defence was an alibi; but the facts known to me in this case, and upon which I acted, would not have been able to have been satisfactorily examined in a court of law. As I have said, I was in agreement with the introducer of the Bill of last year, and am now in agreement with him— that, so far as the suggestion that there might be a court for the revision of sentences is concerned, it might be well to consider it, and so also in regard to 54 new trials. But at the same time I do not disguise from myself that the difficulties of the Home Office in dealing with cases would be very largely increased if such a suggestion were carried out. At present there is a most careful and exhaustive inquiry made by the Home Office into any case brought before if. This is done in consultation with the judge who heard the case; and, while we should not be doing our duty if we did not mitigate the severity of the sentences inflicted by certain judges, the hon. and learned Gentleman is quite right in saying that it has always been the endeavour of the Home Office to act in concert with the judges and to take their advice, so far as it could be followed, in dealing with the cases brought before it. But if there is this Court in existence, and supposing it is in the power of the Home Office to secure a new trial in cases where we have felt that the verdict is unsatisfactory, and where, if the Court had been in possession of certain facts with which we were familiar, a different verdict might have been given, and if we refused to send such a case to the Court, would it not be said that we denied access to a court of justice? I have shown that the difficulties in the way of the Secretary of State are very considerable, but I do not say they are insuperable; and if the Bill of the hon. and learned Gentleman contained provisions going to the extent I have indicated, I should be willing, as I did last year, to give him my support; but the hon. and learned Gentleman goes much further. I will now deal very shortly with the question of giving a general appeal in criminal cases. Now, Sir, I do not think much reference has been made this afternoon to authorities on the subject, and I am very glad of it, because, although one must admit—with all due respect to Her Majesty's Judges—we cannot take their opinions as being altogether unanswerable, it is yet the fact that during the last 40 or 50 years down to the present day, as I venture to think, the greatest criminal judges have in the main been opposed to the opinion that there should be any new trial or any Court of 55 Criminal Appeal at all. I shall not be contradicted if I say that they have been rather in favour of what the hon. and learned Gentleman proposed last year, and which, as I have said, I am perfectly willing to support now. Well, then, Sir, I would ask, has it been stated today—has any hon. Gentleman in this House stated that there is any feeling that this Bill is required in the interests of justice? Is it stated that in a great many cases the juries have been wrong; and is it alleged that if those juries have been wrong and innocent persons have been convicted, a remedy has not been found in the existing jurisdiction of the Home Office? I think we ought to require some evidence that there is a generally-prevailing opinion that there should be an appeal everywhere before you alter a system which on the whole has worked without injustice to innocent persons. That is my point, Sir; so far as the experience that I have had of the office over which I have the honour to preside goes, I may safely say this. Of the cases of persons convicted by juries in which appeals have been made to me for various reasons during the last two or three years, there were scarcely more than seven or eight in any one year in which, after the closest examination, I thought it my duty in any way to question the propriety of the verdict, as apart from, the sentence. And although it may be perfectly true that there are many cases which do not reach the ear of the Home Office, with the great number which did reach us we were able to deal with satisfactorily. I submit, and I shall be surprised if my predecessor contradicts me, that, in view of the frequency with which these appeals are made to the Home Office—and, let me add, the increasing frequency with which Her Majesty's Judges refer those questions to the Home Office to be dealt with—if there had been any injustice felt about those verdicts we should have heard something of them. And I assert unhesitatingly, and there I am sure my right hon. Friend will support me from his experience, during any one year there are seldom more than six 56 cases in which, even on the recommendation of the Chairman of Quarter Sessions or the Judge who tried the case, we have found it necessary to interfere with the verdict, apart from the sentence. A great deal of sentiment has been aroused in favour of this Bill, on the ground that, as it is said—You give an appeal in a case involving a few shillings, but you do not give an appeal in a criminal case, possibly involving a question of life and death, and closely connecting the honour of the accused's family,and so on. Sir, I think it has hardly been sufficiently insisted upon that there is a vital difference between civil and criminal trials. In the civil trial any person can bring an action against anybody else without any previous securities being given, so long as he is within the provisions of the common law or the statute law; and when he has brought his action, and, as the hon. and learned Gentleman who spoke last said, when the defendant is brought face to face with his opponent, and for the first time knows the exact nature of the case against him, then the jury has to decide upon the balance of evidence. But the balance of evidence, Sir, is a very different thing from, what is required in a criminal case. In a criminal case you have, in the first instance, a committal before the magistrates, which is not the sham the hon. Gentleman tried to suggest, or the verdict of a coroner's jury; then there is the Grand Jury, and next the trial before a jury and a judge; and to say under these circumstances, not that the prosecution should have the balance of evidence on its side, but that the jury should be satisfied unanimously that there is no reasonable doubt that the case for the prosecution has been proved, is very different from saying, as you do in a civil case, that there is merely a balance of evidence from which both parties can appeal. I say there is substantially a vital difference between a civil and a criminal appeal, and those who are in favour of altering the criminal law, and think they are doing it in the interest of the accused persons, are very much mistaken, and entirely mistake the 57 analogy of the case. Of course there is no idea of giving any but unilateral appeals. This Bill proposes to give an appeal only to the convicted person, and nobody would propose in regard to a person once acquitted that you should give the Crown, as prosecutor, an opportunity of going behind the verdict of "Not Guilty." But I must say that I think there is a great deal to be said for the argument of finality, and, in spite of what has been said by the hon. and learned Gentleman opposite, I feel that if, after all the care taken in a criminal trial, the jury think they are not giving the ultimate and decisive verdict, you will be to a certain extent diminishing the responsibility of the jury and increasing the probability of a conviction. I do not wish to put this too high, but you do introduce a certain element of uncertainty, a certain element of shirking responsibility, and you do enable counsel to say to the jury, in arguing for a conviction—If, gentlemen, you are wrong in the verdict you now give, and which I strongly urge you to give, it can be put right afterwards; but if you allow the prisoner to escape—
§ *THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Well, I will not say that; but surely the hon. and learned Gentleman will not deny that a counsel addressing a jury in favour of a prosecution might say—If your verdict is in favour of the prisoner, there is an end of it; but if you convict him there is a possibility of appeal.
§ SIR R. T. REID
I do not like to interrupt the Home Secretary, who is most fairly stating his view, but I do not think it would be becoming in a prosecuting counsel, nor do I think any judge would allow a prosecuting counsel to say—Well, after all, if you acquit, it is final; but if you convict, remember there is an opportunity of appeal. I do not think an argument of that kind would be allowed in any Court.
§ *THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
I am very glad to hoar it. I do not wish to press the point, but, at all events, the fact would be known to the jury, and in one way or other the ingenuity of counsel would not be unequal to getting over the difficulty. In a public prosecution in England I am confident there would be means of putting before the jury the fact that in the altered state of the law allowing an appeal, their verdict would not be so final as it is at present. I do not put the case stronger than that, but I do not think it is an unfair argument. Therefore I must say I think the House ought to view with great suspicion such a vital change in our criminal law as is involved in the general question of appeal. But supposing you go further, then I should like to ask the House how is the ordinary prisoner, who is dealt with under present circumstances by the action of the Home Office, going to fare under this new proposal? I venture to think that his case will be infinitely worse than it is at present. I do not say anything about those prisoners who have plenty of money. There are many persons convicted who have plenty of money. I do not say, "Leave them to themselves," but I think they can be fairly trusted to take care of themselves. I do not say what their position would be, but I say that the ordinary prisoner, who has probably not got enough money to defend himself in the lower courts, will be put in a much worse position than he is in now. At present petitions can be made to the Home Office in the most simple and humble form. Very often a mere sheet of note paper which on the face of it shows any justification for inquiry is sufficient to induce the Home Office to inquire into the case. In the case of capital sentences we do not need a petition at all. It has been the universal practice of the Home Office, whenever a prisoner is sentenced to death, at once to look into all the surrounding circumstances before any petition reaches us at all in order to see whether there are any extenuating cirumstances which cannot be known to 59 the judge or jury and which deserve to be taken into consideration. Well, that will, be altered by this Bill. A poor man who has been convicted, and very likely convicted because he did not get legal advice, and could not afford to defend himself, can go to a Court of Criminal Appeal. He asks leave to appeal, but what chance has he of getting that leave to appeal? He is told, "The jury heard everything you had got to say, and they disbelieved you." What chance has he of getting up, within the seven days given by this Bill, sufficient new facts to enable him to secure a new trial? I cannot conceive anything more illusory or unfair to this unfortunate man. It is impossible almost, considering the fact that most of the persons who are dealt with by the action of the Home Office are poor people who could not afford proper legal advice in the Court below, that they should be in any way benefited by the formation of a Court of Criminal Appeal. There are now facilities for an appeal from courts of summary jurisdiction, but they are very little taken advantage of, because it is not within the means of poor persons to avail themselves of them. Now, what is the case with regard to the action of the Home Office? As I have said, I do not want to appear to be defending the present system, because I happen at the present moment to be connected with it; but what I desire to say is this: The moment a petition, such as I have referred to, comes up from a prisoner who has been convicted, and who has something to say deserving attention, it is at once gone into with the whole of the machinery at the disposal of a powerful Government Department. There is no legal power known to the Home Office which is not used in order to discover the whole truth with regard to such a case; and we discover, as I have said very often, facts, and make inferences from those facts, which are not things that can possibly be discussed in a court of law. I cannot conceive that a prisoner, although he might have an abstract right of appeal, as proposed by the Bill, would find himself in the least bit better off than he is now. I want to know how 60 it can be so. It is quite true that what has been called the "secret action" of the Home Office might with some advantage be made more public, if that were possible, but it is not possible. I understand from the observations made in this House that there is no general fault-finding with the results of the action of the Home Office, and I may point out we make public as much as we properly can, consistently with the interests of the public service; but this House does not meet for the administration of justice, and as long as we do make public what we properly can, I do not think there are any fair grounds for deviating from the present practice. The appeal suggested by the Bill is an appeal to a court which must be legally constituted, and as to which there must be in the conduct of any proceedings brought before it very great expense. It must result, from such a Bill as this that the expense must be borne by the public. In the case of a man who desires to prosecute an appeal before the Court, somebody must get up his case. The State must get up his case, or, if you like, the Home Office must get up his case. At all events, as I have said, most persons convicted in the manner I am speaking of are persons who are probably not able to afford any legal assistance in the Court of Criminal Appeal, and whose families are not in a position to engage learned gentlemen to support their case. I do not say that that is an insuperable difficulty, but somebody must get up the case, and it will have to be done by the public. And then comes the question for the Home Office, "Are we to employ counsel, or are we not?" If the Home Office has to get up the case in an appeal, I do not say it is right that we should employ counsel, but if we do not, how is the Court to understand the case put before it? If we do employ counsel, is the counsel employed by the Government to argue the case against the Public Prosecutor who has conducted the prosecution against which the appeal is made in the Court of Criminal Appeal? Surely you will land yourselves in considerable 61 difficulties by the adoption of such proposals. I am aware that what is proposed by the hon. and learned Gentleman, for whose remarks upon myself and attitude towards the Home Department generally I am obliged, is not to supersede the exercise of the Royal prerogative of mercy on the advice of the Home Office. Of course I know that is not the case, but I do think that, as has been said by several hon. Gentlemen who preceded me in this Debate, he would place very considerable difficulties in the way of the exercise of the Royal prerogative. Although we can extend mercy to criminals upon grounds which cannot be dealt with logically by a regularly-constituted legal court, yet there would be much more difficulty in extending that mercy to a convicted prisoner when he has appealed to the superior court, and that superior court has ratified not only the sentence but the verdict of the lower court. Now I see that an hon. and learned Gentleman disputes that proposition, but I put it to him, if he had himself to deal with such matters, and new evidence was put before the Court of Appeal which had not been before the Court below, whether it would not, at all events, render it much more difficult to deal mercifully with such a case in the way we do now by the exercise of the Royal prerogative. An hon. Gentleman opposite spoke of what would happen if there had been a possibility of an appeal from a revision of the sentences in the case of the treason-felony prisoners. I think it was said that if at that time there had been an appeal from the court which inflicted sentences of penal servitude for life, or for 20 years, and they had been confirmed by the Court of Appeal, more satisfaction would have been given to public opinion. But I venture to say that if a Court of Appeal had confirmed the sentences originally inflicted upon those prisoners, it would have been far more difficult for the Crown to exercise that leniency which is still open to it to exercise in some of those cases. I do not wish to labour my opposition to what I believe to be the principle of this Bill, but I confess I am not prepared to accept it. I shall 62 vote against the Second Reading of this Bill. I feel, as I have said, that if a Bill such as that of last year could have been framed so as to make possible a new trial when found necessary either by the action of the court or the Secretary of State at the Home Office, then it ought to be fairly considered as a proposal which had the authority of Her Majesty's judges behind it. But I am not prepared, on behalf of the Government, to give my assent to a general scheme completely altering our criminal law, and giving a universal right of appeal in criminal cases, which, for my part, I believe would be to the great disadvantage of persons accused, and no improvement in the administration of justice.
§ MR. H. H. ASQUITH (Fife, E.)
I share the regret of the right hon. Gentleman who has just spoken that during the greater part of the discussion of this most important question the House has been more thinly attended than I think I ever remember it to have been in the course of my now somewhat prolonged Parliamentary experience; and I add to that an expression of regret on my own part that the only one of the hon. Members who have taken part in the Debate before the Secretary of State spoke did not belong to the profession of the law. I confess that it would be very desirable in a matter of this kind to have the opinion of laymen, and to ascertain how far in their opinion our existing system of criminal administration is defective, and whether a remedy is to be sought in the direction pointed out by this Bill. I agree further with the right hon. Gentleman that if we were dealing with this matter from the point of view of what I may call definitive legislation, it is to the Government alone that we ought to look to formulate the proposals which the House is to be asked to accept. But I rather gather from the speech of my hon. and learned Friend who moved the Second Reading of the Bill that his object was to obtain the assent of the House to the general proposition that some large improvement should take place in the 63 direction of giving greater legal right of appeal in criminal cases, and that as regards the machinery, he was frankly prepared to submit it to the judgment of a Select Committee to be overhauled as they might think proper. In other words, we are not dealing with a Measure which is intended to be passed into law in the shape it is, but with one which has been presented for consideration of the general principles it involves. Sir, if that were not so, I confess I should feel very great difficulty in giving my vote in favour of the Second Reading. I am by no means enamoured of the machinery of the Bill. To a considerable number of its proposals I should be obliged to offer strong and determined opposition. But I agree that the existing system of appeal in criminal cases is attended by great evils which it is necessary for legislation to correct; and I must say that it appears to me that in one or two respects our existing system requires amendment, and amendment which only Parliament can bring about. Now, there are two main points upon which objection may be taken to the existing administration of the criminal law. On the one hand, it may be alleged that sentences are unequal, and in many cases excessive; and, on the other hand, it may be alleged that verdicts are very often unjust, and that innocent persons are convicted. For the first of these propositions there is, in my opinion, abundant foundation; for the second I believe there is no foundation at all. My right hon. Friend opposite has told us that if this Bill were confined to a proposal to establish a court which would have the power of revising sentences—not, indeed, in the way of increasing them, but of reducing them, by way of modification and leniency, and to secure greater uniformity than at present exists, he would in principle be in favour of such a proposal. Therefore, so far as that part of the proposal is concerned, there is a general agreement. Now let me ask attention for a few moments to the other point—I mean the question whether there are miscarriages of justice and unjust verdicts in criminal cases, resulting in the conviction of innocent 64 persons, against which it is desirable to provide greater safeguards than exist under the present system. Now, I entirely subscribe to what the Home Secretary said as to the procedure, and conduct of the Home Office in this matter. He said that in the last few years he cannot remember an average of more than eight or nine cases a year in which he has been obliged to disturb a criminal conviction on the ground that an innocent person had been convicted, or where there was sufficient doubt to make it inexpedient that he should be any longer kept in prison. Well, Sir, I have not refreshed my memory—in fact, I have not had the opportunity of doing so—as to the precise number of cases during the three years in which I occupied that office, but I believe my experience was substantially the same as that of the right hon. Gentleman. As far as my experience of the Home Office goes, of the number of cases referred to me in one year there have scarcely been more than seven or eight, and that is extremely satisfactory, because, although no general charge has been made against any excessive stringency of this particular branch of the Home Department, it has been hinted. I entertain a very strong opinion on this matter, and I think that the prerogative of mercy administered on lines necessarily elastic and flexible as now administered by the Home Secretary will prove more lenient in the long run in doubtful cases of guilt than the stereotyped procedure of a Court of Appeal; and if I thought the setting up of a Court of Appeal would prejudice the exercise of that prerogative, I should not think either in justice or humanity it was a desirable innovation. While I am strongly of that opinion, I do feel that there are cases—not very many in number perhaps—but cases which come before the Home Secretary under the present system in which it would be most desirable, if possible, to order a new trial before the public in a court of law governed by the procedure of the legal tribunal. One does not like to mention instances, naturally, but I have in my mind two or three cases which excited great public interest, which came 65 before me in my tenure of the Home Office which I should like to have had an opportunity of sending to be tried again before a now judge and a new jury to ascertain whether the doubts about the original verdict, were well founded. We have no such power, and the Home Secretary is obliged to act without the advantages which are afforded by examination, and that examination on oath in public. He would in many instances be able to administer that portion of his office with much more satisfaction, to his office and to his conscience if he had the power to submit cases of that kind to the arbitrament of a fresh trial. It was said—and my right hon. Friend has dwelt with great force upon it—that if a case was sent for trial a second time, and if the second trial by its verdict confirmed the first, although you preserve by a paper contract the prerogative of mercy, you would cut down and restrict the scope of the Home Secretary, and it would be more difficult for him to exercise that prerogative. To my mind that is not by any means a conclusive argument. There are considerations which constantly operate in one's mind with the administration of the prerogative of mercy which are wholly independent of legal procedure and proved facts, and they could never be severed from the mind of the Home Secretary in the judgments which he would have to form. Nor do I attach much importance to the statement as to finality. It does not appear to me an insuperable objection to the proposals of this Bill that they would do away with the finality of the verdict under the existing system. It is said that a jury, if they knew that their verdict would be subject to revision, would not act in the same sense of final responsibility which at present imparts so much solemnity to the findings of a criminal jury. At any rate, I think those who use that argument here are obviously in fault. In the first place, in civil procedure every juryman who gives a verdict gives it under those cir- 66 cumstances. He knows very well that there is a Court of Appeal before him, but it may be said that is a judicial appeal, but, so far as the argument goes, it is operative against a jury in a civil case, and there is this further point that juries now believe when giving a verdict of guilty—say in a capital case against a person accused of murder—there is always an appeal to the Home Office. I do not mean only an appeal presented by the prisoner, because it is the invariable practice of the Home Office, whether a man appeals for mercy or not, to carefully investigate the whole of the circumstances of the case before sentence is carried out. Therefore the juries called upon to take part in those cases act with the knowledge that whatever can be said for the man in favour of a revision of their verdict will be said. It does not appear to me, therefore, that there is much in that argument. What is the conclusion, then, to which I come? I am not satisfied to leave the law in the condition in which it at present stands. As the revision of sentences, this Bill will relieve the Home Secretary of many difficulties, and it would much relieve the tension of the public mind as to the administration of justice if we had a public tribunal always ready to mitigate the monstrous discrepancies between the different sentences passed by the same judge for the same offence. It is very much less serious as regards offences practically of common occurrence, but in doubtful cases—mainly the possibility of innocent persons being convicted by a verdict of a jury, or where the offence is of a very doubtful character—I do think there should be a power to submit the case to the arbitrament of a jury again. It is to that extent, and only to that extent, that I am in favour of the establishment of a Criminal Court of Appeal, and simply to record my opinion that these changes ought to be made, and not because I commit myself to all the machinery set up by this Bill, that I shall vote for the Second Reading.
§ MR. L. ATHERLEY-JONES (Durham, N.W.)
I must, in the first place, say that it appears to me to be repugnant to one's natural sense of justice that there should be no Court of Appeal for criminal cases, because when one contrasts that procedure taken in civil cases—and one knows that in civil actions there are rights of appeal—it is difficult to understand that in criminal cases, where a man's life or liberty is involved, there should be no such right. In considering the general proposition, when one comes by the light of practical experience to consider what the working of the law has been, doubts naturally arise, and those doubts, upon reflection, become reduced to something like conviction. Therefore, although one is naturally seduced by the plausibility of the arguments in favour of founding a Court of Criminal Appeal, when one comes to view it by practical experience, one is driven to the conclusion that more mischief would be likely to arise from the establishment of a tribunal of that nature than is likely to arise by the machinery of the present system. There is at the present time, although hon. Members not instructed in the law may not know it, machinery which operates on the mind of a judge in his ruling. A question of law can be made the subject-matter of appeal. A judge has power to reserve points for the consideration of the Court of Crown Cases Reserved. Even if that power were nonexistent in difficulties that may arise in connection with criminal law, either through the complexity of the case or through want of knowledge on the part of the judge, the Court of Appeal would never be required for the purpose of reviewing the mistakes of the judges. I believe there are very few errors upon their part. Therefore we are reduced to the consideration whether on a question of law, or a question of mixed law and fact, it is desirable that there should be a Court of Criminal Appeal. There are two great classes of cases, one in which capital sentences are passed, and one in which merely sentence of imprisonment is passed, and this Bill 68 in the main is a Bill for the maintenance of a Court of Appeal in criminal cases where capital punishment is involved. Subsequent provisions, it is true, provide for sentence of imprisonment, but of this I am convinced, from some experience, that there would be, in spite of what has been said just now, a serious desire on the part of juries to shift their responsibility if there were to be a Court of Appeal, with the power to call witnesses, and a power to hold a re-hearing of the case. I have had experience both in prosecuting and defending cases of murder, and, in the case of defending, one commences one's address to the jury by invoking them, and reminding them that their judgment is final, and in one's peroration one terminates with a somewhat similar appeal to their sense of final responsibility, and there is no doubt that it is that sense of final responsibility which makes them so reluctant, and very properly reluctant, to find a man guilty who is accused of murder. I do not think that the sentiment that they can go to the Home Secretary is present to the mind of the jury. I think they regard their verdict as final, and think, and rightly so, that the Home Secretary will be reluctant to intervene and cancel the verdict at which they had arrived after seeing witnesses and hearing the evidence and coming to the conclusion which they had. This was a very different thing to the prerogative of mercy which grants what may be a pardon of the sentence, but leaves the conviction of the charge of murder unremoved from the man. Therefore, I do not think that the sense of responsibility on the part of jurymen is in the smallest degree weakened by the fact that there is going to be an appeal to the clemency of the Crown. The right hon. Gentleman said: What about civil cases? Well, juries do not entertain the same sense of responsibility in regard to civil cases. With all due respect to, and with, perhaps, a larger experience than my right hon. Friend, permit me to say that the responsibility of a jury in a civil case is not comparable, for one moment, with the responsibility 69 felt by a jury trying a case in which the punishment is death. We know that in civil cases compromise often plays an important part. I have myself, only recently, been the unhappy victim of a compromise, and it continually arises that juries discuss the pros and cons. of a case only to settle it in some rough-and-ready fashion, and they say; Let us decide it for the plaintiff, with so much damages. But they never act like that in criminal cases where the penalty is death. It is because I would not weaken that tremendous sense of responsibility felt by a jury in a criminal case, where they are trying a person for murder, for a crime which is punishable by death, that I shall be much more reluctant to see a Court of Criminal Appeal created for the purpose of dealing with capital punishment. If the House will allow me, I now pass to the consideration of the other parts of the case, in which capital punishment does not apply. Well, I believe that in cases of that character, as a rule, the sense of responsibility on the part of juries is very large. It is not as large, of course, and cannot, in the nature of things, be as large as in cases in which capital punishment follows. But let me ask the right hon. Gentleman this: What will be the practical effect of this Bill? It is not what the theoretical effect of it may be—of giving to every prisoner the right of appeal. That sounds very well. It sounds exceedingly plausible, and a general philanthropic sentiment, which naturally commends itself to the veneration—I will not say to the judgment—and feelings of most of us. But, as the Home Secretary pointed out, the great mass of people who are affected, are people who would be utterly unable to avail themselves of the machinery of this law, far they are, as a rule, persons who are friendless, houseless, and impecunious. They have no means; perhaps they have not even enough money to provide a fee for a junior counsel to defend them. They have not the means to defend themselves properly before the court in the first instance, and they are utterly incapable of having the means of carrying the proceedings to another and higher tribunal. This Bill in its working operations would be a benefit undoubtedly to rich people, for it would enable people with means to pursue all 70 kinds of dictatory processes—I will not say vexatious—by which they might run the chance of causing the decision of the jury to be ultimately overruled. I should be very reluctant to see that which would be an application of what does exist in practice, although not intentionally. I do not make that expression in any invidious sense; but I am convinced in my own mind that the establishment of a Criminal Court of Appeal would clearly be the means of affording assistance to the well-to-do people, and would be no protection whatever to the poor. There was one thing I was very pleased to hear from the Home Secretary, and that is the very great care which, is taken in investigating cases brought before his notice. I wish the machinery at the disposal of the Home Secretary were amplified; and I think it is desirable, in some cases, that he should have the power of ordering a case to be re-tried. I am not at all sure—and I was less sure before I heard what fell from the lips of the Home Secretary—whether he engaged the assistance of the financial resources of the Crown in cases which came before the Home Office in a very effective manner. I am very glad to hear that he does exercise that power. But, supposing you are to do away with that power and establish a Court of Criminal Appeal, if you do that there is no question that, in effect, you would do away with the power now vested in the Home Secretary. Supposing you were to establish a Court of Criminal Appeal, the result would inevitably be that whenever the man had the means to appeal he would go to the Court of Appeal, and would not avail himself of the Home Office. I have an illustration in my mind where the action of the Home Office rescued a man, an innocent man, from death. I allude to the Fenian trials at Manchester in 1878. A man named Maguire was sentenced to death at that trial, and representations were made to the Home Office that that man was innocent of the crime. The Home Office put its machinery in motion, and they found the man was guiltless of the crime, and they reprieved him. Now, I have the authority of the late judge who tried that case for saying that upon the evidence that was adduced at the trial there could be no doubt as to the person's guilt. Now, 71 supposing the Court of Criminal Appeal simply heard the evidence again, and dealt with the case as it was before the court in the first instance? Well, the result would have undoubtedly been a confirmation of the original sentence. I therefore draw a moral from that case to this effect: I draw the inevitable inference that a Court of Criminal Appeal would in that case have been a disadvantage, because they never would have thought of going to the Home Secretary. I have no doubt that that man, who received a free pardon from the Crown, would have been executed in pursuance of the final judgment of the Court of Criminal Appeal. It is for these reasons that I shall record my vote against this Measure. It is a well-drawn and well-considered Measure, but I do think, speaking merely from the little experience I enjoy, that the result will be detrimental rather than an advantage. The only people in this House who can speak with any authority on the subject are lawyers or such few ex-criminals as there may be in this House. I have a genuine sympathy with the aspirations of my hon. and learned Friend who has introduced this Bill, but I have a deep-seated conviction that the establishment of a Court of Appeal will be, in the result, to the detriment rather than to the advantage of persons who may be unjustly convicted, and I shall, therefore, with much reluctance, record my vote against the Second Reading.
§ SIR RICHARD WEBSTER
I shall not detain the House long, but I cannot allow this Debate to close without making one or two observations. I agree, with one exception, with everything that fell from the right hon. Gentleman the late Home Secretary, but I cannot help feeling that the course he has adopted in this Debate is somewhat strange. Having made a most powerful appeal to the House against the Bill, he announces his intention of voting for it on the ground that there may be some change in the law in the direction desired by the promoters of the Bill, with which he could sympathise, or which he desired to see brought forward. That does seem to me a rather dangerous argument, even for a Wednesday afternoon. We have this Measure brought in, and it is a serious alteration of the law which it is desired to promote, and 72 it is to be voted upon by Members who have never heard the arguments, although the consequences of the Measure are of vast importance. But, Sir, all that seems to me to point to the fact that, if you cannot approve of the main provisions of the Bill, if you are obliged to say, as the right hon. Gentleman opposite said, that to the main provisions of the Bill you must offer a strenuous opposition, it is rather a strange thing either to ask the House to vote for its Second Reading or to express your intention of voting for it because it will not be construed outside as other than an expression of opinion in support of some abstract Resolution. It does seem to me that we really ought to deal with Measures as they are brought before the House, and not bring the forms of the House into contempt by saying that you can turn the question of the Second Reading of a concrete scheme into a discussion or a decision upon an abstract Resolution. Now, Sir, one observation, the only argument of the right hon. Gentleman with which I do not agree, was that he said the passing of this Measure or scheme would not affect the responsibilities of juries. Sir, I must say I agree to a great extent with what fell from the hon. Member, but I think that the right hon. Gentleman has not sufficiently considered the different points of view from which criminal juries and civil juries approach their duties. I am quite satisfied that, in the great majority of cases, civil juries do weigh and consider the balance of evidence. It is their real function, and they have to weigh and balance everything between one and the other, and decide which is right; and not infrequently they come to a compromise by not deciding wholly in favour of one or the other. But criminal juries, however, have for years, and will, I believe, for ever, be impressed with the sense of the responsibility that they have got to see that the Crown makes out its case to their satisfaction, and the fact that it is known that they are the final judges does affect their judgment and their feeling of responsibility. The knowledge that there is, in every capital case, and in every case, an appeal, could not fail to have an effect upon the way in which a jury would regard its duty, 73 and it must equally affect the frame of mind and the kind of feeling in which they discharge their duties. Now, Sir, I only wish there were more Members present, in order that I might ask them to take all the arguments of the right hon. Gentleman opposite into consideration, and to carry them to their logical conclusion by voting against this Bill. When my right hon. Friend spoke about there being something in the Bill which enlisted his sympathy, I could not help thinking that he had not studied it as closely as it was his duty to do. With the exception of Section 5—for which almost an apology is made in the memorandum—and perhaps one other section, there is nothing else in the Bill which deals with the particular part of the proposals in respect to which the right hon. Gentleman thought some alteration might be made. I wish to say a word or two upon what I may call the merits of the case. The suggestion made by the promoters of this Bill is that it would be to the advantage of the accused; and that the question as to what shall be done with them in capital cases, assuming they have been convicted, ought not to be considered by the Home Secretary. Well, everybody agrees, who has spoken in this, that the existence of a Court of Appeal will have a considerable effect on the amount of discretion which the Home Secretary of the day will feel ready to exercise in reviewing sentences. Now, Sir, it has been my privilege on more than one occasion to examine cases at the request of the Home Secretary, and having seen other cases, I know exactly the class of information brought before him. I think that last year, when the other Bill was under discussion in this House, further consideration confirmed my view that it would not be in the interests of those who are likely to have their sentences reviewed by the Home Secretary, that those sentences should be reviewed by a Court of Appeal, under the cast-iron rules by which such a Court would necessarily be governed. The right of the Home Secretary is exercised under the strongest feelings of responsibility, and he can deal with matters which are not supported by what I may call legal evidence. He can consider weighty representations upon which he is entitled to act, but upon which a Court of Criminal Appeal would not be entitled to act; 74 and I do not hesitate to say that it is more to the interests of the accused—especially when we consider the commutation of sentences—that their cases should be considered by a person in the position of the Secretary of State, and not by a Court of Criminal Appeal. Now, I think my hon. and learned Friend who brought in this Bill overlooked the great difficulties that would surround the system proposed by him, and which would inevitably arise between rich and poor. I do not believe that the hon. and learned Member for Durham went too far when he used the expression "one law for the rich and another for the poor." If this Measure is passed there will inevitably be one law for the rich and another for the poor. I am not going to repeat it, but I hope the House heard what the Home Secretary said. I want to know how the defence of am appeal is to be got up? Is the Home Office to prepare a prisoner's appeal and provide him with counsel? Is the Home Office to act from the point of view of defendant as well as prosecutor? All these questions are involved, and we cannot sweep them aside, because the moment this right of appeal is given in capital cases, and this privilege of appeal in other cases, it will give to the rich criminal, who possesses the necessary means to appeal, an advantage which is absolutely denied to the poor man, and this is not practicable unless you are prepared to adopt an entirely different system of dealing with criminal cases. Another matter, to which reference has not been made, is the extreme importance in the public interest of the promptitude of punishment after sentences, when there is no doubt about the case. Sir, I am quite satisfied that Home Secretaries and ex-Home Secretaries will admit that in serious cases, when there is no real doubt, it is very important that justice should be swift and that punishment should follow the decision of the jury. Of course, it is perfectly obvious that to those to whom expense is no object this Measure will give them an opportunity of preventing the prompt execution of sentences passed upon them. We have not heard, I confess—and if we are going to consider this Bill as a Measure I think we ought to have heard something—as to how it is proposed that such a system shall be worked, having 75 regard to the present system. Anybody who supports this Bill must look forward to a very serious condition of things. The Bill would necessitate a considerable increase in our staff of judges, although, personally, I should regard that with equanimity. Certain judges are to be placed at the disposal of prisoners within 21 days, and. I need scarcely point out that such an interruption of our existing machinery cannot be made to work smoothly without considerable thought and arrangements. That is no argument at all against the system, although it is a very strong argument—if the late Home Secretary will pardon me for saying so—against the Second Reading of this Bill, which involves all these difficulties and considerations. I do not think the point will be put better, if he will allow me to say so, than the right hon. Gentleman put it. This Bill rests upon two considerations. They are that sentences are excessive, and require to be reviewed, and that there are wrong verdicts requiring to be set right. I agree with the right hon. Gentleman, and I endorse what he said. I am sure that there are many cases in which sentences should be reviewed and set right, if that can be done by any reasonable alteration of the law; but if you are going to introduce a new system, in order to review verdicts of criminal cases, it is your bounden duty to make out that there are a substantial number of wrong verdicts. The right hon. Gentleman agrees with my right hon. Friend the Home Secretary, and every speaker is perfectly agreed, that they are unable to bring any number of cases in which it may be said that criminal verdicts have been seriously wrong. The fact is that the only argument brought forward in support of the principle of this Bill is based upon the supposed analogy between civil and criminal cases, and the suggestion that it is monstrous that there should be an appeal in one case and not in another. Sir, the difference between the circumstances concerning civil and criminal cases has been brought out over and over again in the speeches in this Debate. It is quite incorrect to say that the trials in civil and criminal cases are carried out under the same surroundings. There 76 is a great difference in the feeling of responsibility in the jury, and there is practically a different inquiry. In my opinion the present system offers more safeguards than that which is proposed by the present Bill. The rule with the jury is that the prisoner is to be regarded as innocent until he has been proved to be guilty, and this is more important, in the interest of prisoners, than the review of sentences and verdicts by such a Court as that which is proposed. I am sure the right hon. Gentleman will understand that I have not attempted, only with one exception, even to criticise his arguments, and I think that anyone who considers the arguments against this Bill will vote against the Second Reading of the Measure. I intend to vote against the Second Reading, and to express the opinion that I believe such an alteration of the law would not be an improvement in our criminal system.
§ *SIR H. FOWLER (Wolverhampton, E.)
The right hon. Gentleman is a lucid speaker and a very able debater. He generally understands the ground he is going to take and the reason why be takes it. I have listened with great attention to his speech, and I have not the slightest idea now whether he objects to the principle of this Bill or to its machinery. At the commencement of his speech he said he agreed, with one solitary exception, with the arguments of my right hon. Friend the late Home Secretary. He then proceeded to attack the machinery, after having accepted the principle; then he came back to the Bill itself, and he admitted two points with which the Bill attempted to deal—namely, excessive sentences and incorrect verdicts, and on the ground that there were no excessive sentences—[Sir RICHARD WEBSTER: No, no! I did not say that]. Very well, I take that denial. However, I hope the House will not allow this great blot on the administration of justice in this country to remain without the slightest attempt to remove it. I am going to vote for this Bill precisely on the grounds my right hon. Friend has taken up, that, not being 77 prepared to accept all the machinery and details, I am prepared to affirm this afternoon the principle of the Bill, and the principle is that excessive sentences ought to be reduced, and that unjust verdicts should, if possible, be corrected. Now, the hon. and learned Gentleman spoke with rather some contempt as to the machinery of the Bill, and rather censured the hon. Member behind me, the Member for Bethnal Green, for the manner in which this Bill has been brought before the House.
§ SIR RICHARD WEBSTER
I beg the right hon. Gentleman's pardon. I realty did not do so. I said I disapproved altogether of the machinery of the Bill.
§ *SIR H. FOWLER
I must use the words again, and repeat that, his objection to this Bill was not that he objected to the principle, but to the unworkable and impracticable machinery. Let me remind the House that this is not a new proposal at all; this Measure was brought into the House, not by the Member for Bethnal Green, in the first instance, but it was brought in on the responsibility of the Government of the day. It was brought in by two of the ablest law officers of the Crown, one of whom, at the present time occupies a distinguished position in the Government and in that Cabinet of which the right hon. Gentleman opposite forms a part. Lord James was responsible for both the principles of the Bill and the machinery. That Bill was supported by another distinguished lawyer, who has been Lord Chancellor of this country—I mean Lord Herschell; and the Bill also had the approval of another ex-Home Secretary who has had a good deal of experience at the Home Office in criminal matters—I allude to the present Leader of the Opposition. This Bill, which the Attorney General has asked the House not to accept on the ground that it possesses unworkable machinery, has the approval of Lord James and Lord Herschell, and the right hon. Gentleman the Member for West Monmouthshire. The Measure went to the Standing Committee on Law, and then was overtaken 78 by the fate that happens—I will not say to Scotch and Welsh Measures, but certainly to many English Measures. That Bill went no further. I am only recapitulating these facts to show that this Bill is not the foolish trumpery and impracticable Bill which the Attorney General has tried to make out. [Sir RICHARD WEBSTER: I did not use such language.] No—the hon. Gentleman did not use these words, but he conveyed that impression. I am not going to defend that machinery myself. I do not say it is unworkable, but I say that on many points this Bill will require alteration, as all Wednesday afternoon Bills require altering, either in the Grand Committee or in the Committee of this House. The right hon. Gentleman has contended for the infallibility and finality of the verdict of common juries. It is said that their verdicts can now be rectified by the Home Secretary. So they will be under this system. I think the Home Secretary will have his duties considerably relieved, but the final responsibility of saying whether the capital sentence should be carried out would rest with the Home Secretary, precisely as it rests with the Home Secretary now. I am bound to say that the argument that weighs mostly upon my mind is this: I have seen, to my great regret, for many years, the extravagant and inconsistent sentences which are passed by different judges, often at the same Assize. I remember the hon. and learned Member whose name is on the back of the Bill defended the Bill because it would be a guide as to sentences to judges, and especially Recorders and Chairmen of Quarter Sessions. The whole course of the administration of justice is seriously impaired by the excessive severity of the sentences, and the excessive severity of prison discipline. I shall vote for this Bill on the simple ground that it is desirable to provide, some machinery for dealing with these excessive sentences, and to give, in the administration of criminal justice, what my hon. and learned Friend says is quite right in civil cases. It seems to me that justice is 79 the same whether administered in one case or in the other. It is because I want to have a chance of rectifying unjust verdicts, and a chance of diminishing excessive sentences, that I go into the Lobby with my right hon. Friend.
Motion made, and Question put—
That the Bill be now read a second time.
§ The House divided:—Ayes 116, Noes 180.