§ Order read, for resuming Adjourned Debate on Amendment to Question [8th May], "That the Bill be now read a second time."
Which Amendment was—
To leave out the word 'now,' and at the end of the Question to add the words 'upon this day six months.' "—(Mr. Rawlinson.)
§ Question again proposed, "That the word 'now' stand part of the Question."
§ MR. AKERS DOUGLAS (Kent, St. Augustine's)
I do not think that it is well that this debate should be left entirely to the legal profession, but I consider that some contribution to it should at all events be permitted by laymen. The question of instituting a Court of Criminal Appeal is one of enormous importance, and it is one which is of great interest to laymen as well as to lawyers. We on this side have no desire to approach the consideration of the question in any party spirit, and though we think the details of the Bill require minute and rigid scrutiny, we have no desire in any way to obstruct or oppose its passage. The setting up of a Court of Criminal Appeal and the creating of a new departure in our criminal system is so important that I am sure that the House will not think that we are asking too much when we say that it is worthy of the closest consideration. I regret that the Government have found it necessary, under stress of business, to set the discussion of the Bill down for a morning sitting, when most of the experienced lawyers in the House are, by the nature of their profession, compelled to be elsewhere. A great deal of sentiment has been aroused in favour of criminal appeal, and many of us who originally took a different view of the matter now feel that that there must be some sort of criminal appeal. But though I am in favour of some Court of Criminal Appeal, I am not in agreement with many of the arguments or with the whole of the proposals put forth in its favour or brought forward in this Bill. I think that rather too much has been made of the difference between civil and criminal trials. It has been said, for instance, "You give an appeal in a case involving a few shillings, but none in a case involving a man's life or liberty." But I would wish the 178 House to remember that there is a great difference between civil and criminal trials. First of all, in a civil case, both the plaintiff and the defendant have the same right of appeal; and then there is an essential difference between the two classes of cases, which was clearly pointed out by the Lord Chief Justice last year. In civil cases you have two parties, and one party does not know the details of the evidence to be given by the other party, and often does not know even its substance. That is not the case in criminal trials, whore there are not two parties, and the prosecution has to make out their case to the satisfaction of the tribunal on fact. In civil cases one party does not know the details of the evidence to be given by the other party, but in criminal cases the witnesses for the prosecution are all examined in the defendant's presence before the committing magistrate. Therefore the accused goes into Court with a full knowledge of the details of the evidence to be given against him. In civil cases the jury have to decide upon the balance of the evidence, but in criminal cases the guilt of the prisoner must be proved up to the hilt. Then look at procedure. In a criminal case you have first the committal before magistrates or the verdict of a coroner's jury; secondly, the finding of the Grand Jury; and, thirdly, trial before a Judge and jury, and a verdict of the jury which must be unanimous. Thus in criminal cases you always have what may be called a preliminary trial, and the trial before the Judge and jury is, in itself, to a certain extent an appeal. I think it was the present Attorney - General who, on March 16th, 1898, emphasised this point and used these words—In criminal cases the trial is in a sense itself an appeal.But it is impossible to deny that there does exist a general desire in the public mind to see some reform in regard to the criminal law in the direction of a Court of Appeal and a sincere wish that some means may be found to eliminate the possibility of a miscarriage of justice. The Bill we are now considering is a different one from that which was introduced in the House of Lords last year, and I think the Attorney-General may be congratulated on some improvements he has been able to effect. But still there are many defects which 179 in my humble opinion must be got rid of before this measure can be called a workable one. I hope the hon. and learned Gentleman will not think me impertinent if I ask him, or the Home Secretary when he replies later in the debate, to say whether the Judges have been consulted in the preparation of the Bill, especially in regard to its machinery clauses, and that, at all events, the present Bill is not open to the criticism which was passed upon the Bill of last year by the Lord Chief Justice, who, on the Third reading said—It is my duty most unwillingly to say that I believe the Bill, as it leaves your Lordships' House, to be unworkable, and I deeply regret that legislation in this shape, on so important a matter as the criminal law, should be sent down from your Lordships' House to another place.I am led to hope that there has been full consideration of this matter, and that the judicial authorities have been fully consulted, and I am led to think that that is the case because the Attorney-General, on the introduction of the Bill, said—I have given most careful consideration to the criticisms, many of them most able and cognate, which have reached me from many quarters.It is not my object, even if I were capable, to criticise much of the procedure proposed under the Bill or to suggest amendments to the machinery. I leave that in the much more capable hands of the practising members of the Bar, who, I have no doubt, will express their views later in the debate and will have much to say on these points. I will confine myself to some objections which I see to the main provisions of the measure. The Bill proposes to give a convicted person power—that is a person convicted on indictment—to appeal —Against his conviction on any ground of appeal which involves a question of law alone.I have no objection to this proposal at all. Indeed I think we shall all agree that a convicted person should have this power. It was recommended in the report of the recent Royal Commission on the Beck case, and though the opinions of legal experts are divided about many proposals in the Bill, I think they are united on this point: that instead of its being optional with the Judge or Recorder to reserve a point of law he 180 should be compelled to reserve it. I think they are all agreed that such a right, in the words of the Attorney-General, "should be unqualified." But I do not think that there should be an appeal on matters of fact, and the Bill allows a convicted person to appeal—With the leave of the Court of Criminal Appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court to be a sufficient ground of appeal.I do not think he should have such a right on a pure question of fact, or that the final decision of a question of fact should be taken from the jury and given to Judges who have not seen the prisoner or heard the witnesses. I am willing to give to the Court the decision of appeals on questions of law alone or on questions as to the legality or illegality of sentences, or on questions of misdirection: but I certainly think that we ought not, at all events until after very much further consideration, to give an appeal on questions of fact alone. I want to say a word or two upon the question of new trials. The Attorney-General said, in introducing the Bill, "There will be no new trial"; by which I conclude he means no rehearing of evidence. I think in the Bill of last year the Judges were given power in certain cases to order a new trial, and I hope that such power may be given in the present Bill. This point was, I think, pressed strongly last year in another place, and the objection of some of their Lordships to last year's Bill was only withdrawn on the understanding that when it was thought necessary that a case should be retried it should not be retried by the Judges alone but by a Judge with another jury. A return was granted last year, on the motion of Lord Ashbourne in another place, showing the number of Bills which had been introduced on this subject. I think that in this return there are some thirty odd Bills, and in twenty-five of those Bills there was power to order a new trial. I think that is a question which we shall have to consider very carefully when we come to a later stage of the Bill, and I would remind the House that the Commission of Judges on this subject made no report in favour of new trial on questions of fact, nor did they do so in their subsequent report of 1892. Then 181 there is the question whether the Court should have power to increase as well as to reduce sentences. I am not sure how far any such power is given in this Bill unless it is under Clause 4, subsection 3, but I think there is much to be said for such a power being given. It would act as a deterrent to frivolous appeals, and I am one of those who think that you may have many such if this Bill passes into law in its present form. At present you have in the Bill no restriction, and a convict, knowing he cannot be worse off by appealing, will naturally, though he may know he is guilty, say: "Why should I not try my luck by bringing my case before the Court of Appeal?" Further, I think that a power of this sort would tend to an equality, or, at all events, to a greater equality of sentences. It has been brought home to me, and it must have been brought home to others who have held the office of Home Secretary, that there is an alarming inequality in the sentences imposed in our Criminal Courts. Not only are there judicial authorities who are, and have been, notorious for the severe sentences they give, but. there are certain others who are notorious for giving sentences below the standard set by the majority of our Judges and Recorders. I think some such power was suggested by the Council of the Judges some little time ago, who said—But the punishment inflicted on a convicted prisoner should, if justice requires it, be diminished, and the Court, on the healing of such an application, should have power to increase the applicant's sentence when the facts seem to need it. Any independent application to increase punishment should be made on the personal responsibility of the Attorney-General, who would only so apply in cases appearing to him to be of extreme or systematic inadequacy of sentence. It is necessary to give this power to the Attorney-General, to be exercised by him only in rare cases, because it would hardly be possible otherwise to attain and enforce a reasonable uniformity of sentence. An opportunity should be afforded to every prisoner of being heard, by himself or counsel, before his sentence is increased.If a power of this sort were included it would, I believe, tend to greater uniformity of sentence, which is much to be desired, but, above all, it would tend to stop frivolous appeals. It would act as a useful deterrent against the appeals of prisoners who know themselves to be guilty. It is most important to prevent such unnecessary appeals, otherwise the Bill will become un- 182 workable and your Courts of Law will be more hopelessly blocked than they are at the present time. The number of petitions which are likely to be sent in under this Bill if it becomes law will, unless there is some such provision, inevitably completely block the Courts and render the Act unworkable. Every person convicted on indictment has the right to apply to the new Court for leave to appeal, and I asked the Home Secretary on this point for figures in regard to the petitions sent in, and he most courteously gave me them. In 1905 1,013 petitions relating to 674 cases were sent in complaining that the petitioners had been wrongly convicted, and 1,1 86 petitions relating to 850 cases were sent in complaining that the sentences were too severe. That was the number of petitions sent in under the present system; but if you invite petitions, as you do under this Bill, I am certain you may expect a very much larger number. There will be a tendency amongst all, and especially among old offenders, to try their luck, and many of those who know themselves to be guilty will appeal on the chance of getting off, or to have the excitement of coming up to town and of seeing solicitors and others which they otherwise would not have. In 1905 the total number of persons convicted on indictment was 10,118, and of these 6,790 persons were old offenders having been previously convicted; so, in place of the 574 and 850 cases respectively where petitions were sent in in 1905, you will probably have several hundred more, and I should not be surprised if in the first year they amounted to over 2,000. We all agree that more Judges are wanted. It is a matter of common knowledge that the judicial staff is not sufficient for the business before the Courts. It is admitted by the Judges and it is emphasised by the Bar Council. The Attorney-General stated earlier in the week that there is a list of 572 cases awaiting trial in the King's Bench Division. I understand that that is not more than an average number in recent years, and also that the normal length of time that elapses between a case being set down and the day it comes on for hearing is nine months. I do not know that the position is even so satisfactory in the Court of Appeal, and yet you propose to add further duties to those already discharged by your Judges and 183 thus increase the law's delay. In this country we are to be congratulated on the fact that we know that prisoners or litigants are sure of fair play at the hands of our Judges, but I maintain that justice should be speedy as well as just; but so far as litigants are concerned they have to wait months and months for redress and sometimes find that the costs more than swallow up the award. The present number of Judges is not sufficient, and it is impossible for them, unless they are largely reinforced, to undertake the fresh work which this Bill throws on them. I think there will be a general concurrence of opinion that criminal cases cannot wait. Certainly capital cases cannot or the death penalty must go. But even in cases not involving the death penalty, it is out of the question that persons should be left in prison months or even weeks uncertain of their fate. It is clear that the Judges who sit upon this tribunal will be taken from their present work in the High Courts and the litigation in those Courts will be delayed. Therefore more Judges must be appointed, as I understand that the temporary expedient which is being tried now of sending out additional Commissioners will not be of much avail. Then we have to consider the question of expense, which no doubt is of minor importance, but still of importance to a Party pledged to economy. I do not know how many Judges the Attorney-General will think it necessary to add in order to cope with the work which will be thrown upon the Courts if this new Bill passes, but I should say that at least three would be required. That means £15,000 a year, and then there would be a good many minor officials who would be necessary for the Court, whose salaries would also have to be paid. Then I see the Bill proposes that shorthand notes shall be taken of every criminal trial at assizes and quarter-sessions, and the costs of counsel and solicitor shall be awarded to the prisoner, and the travelling expenses of the prisoner and the witnesses in coming to London are to be allowed also. Has the hon. and learned Attorney-General made an estimate of those expenses, and can he tell us what the estimate amounts to? I am glad to think there is no intention to interfere with the prerogative of mercy now exercised on the advice of the Home Secretary. There are many cases in 184 which, if this Bill passes, it will be of the greatest use in the interest of the prisoner. It often happens that the Home Secretary intervenes where it is impossible to come to the conclusion that a prisoner is innocent, but where after the most careful inquiry and investigation there is sufficient doubt and uncertainty to enable him to order his release. Then the Bill gives wider powers to this Court to consider all the circumstances of the case, though they may not be strict evidence. Here you follow, and in my opinion wisely follow, the practice of the Home Office. In these cases the Secretary of State can and does take into consideration information outside the evidence, and facts which do not come before the jury, confidential reports as to a man's mode of life, his character, and so on. Indeed it often happens that the Secretary of State advises remission on information which is not strictly evidence, or which would not be received as such in a Court of Law. In my experience it was often, generally, I think, the information resulting from inquiries made by the police or by the Public Prosecutor which disclosed fresh facts — facts previously unknown either to prosecution or defence —which led to the establishment of the prisoners' innocence, rather than any fresh evidence placed before the Home Office by the prisoner or his friends. To emphasise this, or rather to give a concrete instance, I will quote the instance given by the present Attorney-General in a former debate on this subject. He said—In my own experience I can recall a ease in which a, man who was convicted of murder, and sentenced to be hanged, was given a tree 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, 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 need not weary the House with any further description of the Home Office system. It was fully described in the debate of 1898 by the then Home Secretary, Sir M. White-Ridley, and endorsed by the present Chancellor of the Exchequer, a former Home Secretary, and 185 is laid down in Sir K. Digby's Memorandum, reprinted as an Appendix to the Edalji Report. But though I am convinced it would be difficult, if not impossible, to find a more able or more careful staff than now advise the Home Secretary, I cannot deny that there are cases—not many—in which I would gladly have welcomed a power preferably to order a new trial before the public in a regular Court of Law governed by the procedure of a legal Court, but, failing that, to refer the cases for consideration to a Court of Judges such as is proposed. The Home Secretary has not only this extremely able staff, but he can call on the assistance when necessary of the Public Prosecutor, of the Law Officers, of the Lord Chancellor and the counsel for the defence, which assistance in all my experience has never been withheld. But it is confidential advice which cannot be quoted, and advice which certainly has not the same weight with the public as a Court of Appeal would have. Therefore, speaking as one who has had some experience of the very serious responsibility which attaches to the Secretary of State in matters dealing with the exercise of the prerogative of mercy, I welcome the proposal in Clause 19 giving power to the Secretary of State to refer a case—or any point arising out of a case—to the Court for their determination or opinion. I do not wish to take up further time on the present stage of the Bill. I have made these observations and criticisms in no party spirit. I consider it, as we must all consider it, most important that all questions relating to our criminal law should be kept clear of anything in the nature of party politics. I shall offer no opposition to the Second Reading, but I hope that the Government will be able to accept alterations in Committee which will make the measure more workable. Above all, I hope they will agree either to omit the right of appeal on questions of fact, or to hedge it in with efficient safeguards.
§ THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Mr. GLADSTONE, Leeds, W.)
I heartily agree with the right hon. Gentleman opposite in his desire to introduce a lay element into the debate, and I appreciate his wish that no party spirit should be imported into this discussion. I welcome 186 the friendly support which the right hon. gentleman has promised to the Second Reading of the Bill, to which he stands in the position of a friendly critic. We are all agreed that there are very many important points which will have to be carefully scrutinised in Committee. It is not my intention to follow the right hon. Gentleman into those points on the present occasion, not because they do not deserve atention, but because I desire to take a somewhat different line, and my hon. and learned friend who will follow me will deal with the legal aspects of the question. One general proposition I will make in reply to the very important points of criticism raised by the right hon. Gentleman. After all, though there may be great difficulties such as congestion of business, yet the fact stands out that this is the only civilised country in the world which has not a Court of Criminal Appeal. Other countries have settled these problems, and I have no doubt that this country will also be able to settle them. The right hon. Gentleman asked a question about the Judges. I will leave my hon. and learned friend to deal with that. I want rather to insist on the fact that though this is a subject which directly affects the Judges, it affects the Home Secretary for the time being even more than it concerns any particular Judge, because while an individual Judge may be responsible in one case, the Home Secretary may be responsible in connection with every case. His position in this matter, therefore, is one of great importance. The right hon. Gentleman mentioned the fact that something like thirty Bills on this subject have been brought forward within a comparatively recent period. Those Bills have never made any progress up to the present time, the weight of technical and legal objection having in the main been fatal to them. I observe that the same objections are now being urged against the present measure. The rejection of the measure on the Second Reading has been moved and seconded by two hon. and learned Members opposite, and eminent criminal authorities like Sir Harry Poland have urged powerful and forcible objections against the Bill. I admit the force of a great many of the objections, but my hon. and learned friend the Attorney-General will deal with these later in the debate. My point is that Sir Harry Poland and others have not 187 sufficiently realised the increasing difficulties of the present system which this Kill is designed to alter. After all, the opponents of the measure have to fall back on the Home Secretary. They admit that some review is necessary. They say the Home Office jurisdiction has been satisfactory in the past, and that it is quite sufficient to meet every case. Therefore it is essential to see what the Homo Office view is. First of all, I would like to remove one general misapprehension. It is a mistake to suppose, as many suppose, that the Court of Criminal Appeal is intended to take the place of the Homo Office jurisdiction as at present administered. The Court of Criminal Appeal must differ entirely from the administration of the prerogative of mercy by an Executive Department of the Government. Lot me show precisely the disadvantages to which Home Office jurisdiction stands exposed as compared with a Court of Criminal Appeal. A Court of Criminal Appeal, if dissatisfied with a conviction, has the power of quashing it. There is no power of that kind in the Home Office. If, after full inquiry, the case is doubtful, it would sometimes advise the granting of a pardon to the prisoner, or it can grant a remission of imprisonment. But it can give no definite and final judicial finding, such as a Court of law can give, and a case, because of that, might remain in doubt. In the second place, the Court decides after hearing both sides. On a petition to the Home Office the prisoner's case only is before it The result of that is that the Home Office has to discover the case against the prisoner, to test his conviction and his guilt, in order to establish, if possible, his innocence. But, in doing so, the Home Office is open to misconception, and is often bitterly represented as being hostile to the prisoner, for whom, as a matter of fact, the Department is really acting. In the third place, the decision of a Court of law is final. There is no legal finality in the position of the Home Secretary. The consequence of that is that, although he might come to a clear and definite decision, he is always exposed to pressure to reconsider that decision. Questions may be asked in the House of Commons, and letters written to the Press. A newspaper may appoint a commissioner, who starts with absolutely no knowledge of the case, to put a 188 particular ease, that of the prisoner, and then, because the Home Secretary adheres to the decision at which he has arrived on the fullest information that anybody could have, he is exposed not only to criticism, but to censure and abuse. In the fourth place, the Court, as its decision is final, is enabled to state its reasons for that decision. The Home Office cannot state its reasons as a general rule. The cases that come before the Home Secretary necessarily include those which are of special difficulty. There is, in these cases, much to be said on both sides, and if the reasons were stated, obviously those reasons would be debated in the Press and in Parliament by those who could not know all the facts and who are not in a position to arrive at anything like a judicial opinion. But that is not the only reason for reticence. In the interests of the prisoner, inquiries are continually made which are of a confidential character, and information is given only because it is confidential. A statement of reasons would involve the disclosure of confidential communications. That is undesirable, and, I maintain, impossible. It would preclude the Home Secretary from making confidential inquiries; that would be absolutely against the interests of the prisoner and would have the most unfortunate results. The Home Secretary is, in my experience, constantly and repeatedly blamed in the Press and in Parliament because, forsooth, he is holding what is called a "secret" inquiry at which the prisoner or his representatives cannot be present. The inquiries that are held are invariably in the interests of the prisoner, and the one thing from which the Homo Office receives the greatest pleasure is where it can find reason either to give a remission of sentence or a free pardon. Nothing is more satisfactory in every way. The Home Secretary acquires a reputation for doing justice, and he relieves his Department from the incubus of doubtful cases. To do anything which diminishes this power of confidential secret inquiry would militate absolutely against the convicted person. In the fifth place, the Court may think it necessary to take fresh evidence on oath and to cross-examine witnesses. The Home Office has no such power, and, in fact, it is, or it ought to be, generally known that the prerogative of mercy was never intended 189 to be used for the purpose of a Court of Appeal or a Court of Revision. If that were the practice or the effect, obviously the Executive Government would have the direct power given to it to interfere with that judicial independence which is one of the glories of the British Constitution, and yet I am constantly pressed from all sorts of quarters, as my predecessors have been pressed, from the executive point of view, to interfere-with the decisions of the Courts. These difficulties are made much greater by the ignorance of the public, which is accustomed to the proceedings of a Court, but which cannot understand any different procedure in these matters. It is quite natural, but it is inconvenient. On the other hand, [I am bound to admit that] the Home Office has some advantages as compared with a Court of Law. It can make these confidential inquiries, it can consider matters and information which are not evidence, and, for that reason, it can sometimes interfere where a Court of law cannot or will not. Under these, circumstances the Bill leaves the powers of the Homo Office in regard to the use of the prerogative untouched. I believe that if this Bill passes into law the number of eases which come before the Home Office for interference will be greatly diminished, though they will certainly not be altogether removed. The Home Office will, too, have an added advantage. In the first place, it will have a choice. The Home Secretary can either deal with the case, as now, independently of the Court of Appeal, by confidential inquiry, and arrive at an independent judgment, if necessary; or he will be able, under the powers given by the Bill, to refer the whole case, or any point in connection with the case, for the opinion of the Court. That power will be invaluable to the Home Office. Then assume that the Court of Appeal has delivered its judgment, and fresh evidence is forthcoming: it would still be open to the Home Office, as now, to consider that fresh evidence, and to take such action, within its constitutional powers, as it takes at the present time. Therefore, undoubtedly, as regards the question of appeal, of review, and of protection against miscarriage of justice, the establishment of a Court of Appeal as proposed by this Bill must be a great added security. You will not only get the efficient work of the Court of Appeal, 190 but you will still have untouched powers in the background. I come now to state the two main reasons which I submit to the House, from the Home Office standpoint, in support of the Second Reading of this Bill. I am glad to see present the hon. and learned Gentleman who at the present moment has announced his opposition to this Bill, and I respectfully ask his earnest attention to what I am about to say. First of all, I would observe that the present machinery for redressing a miscarriage of justice is insufficient. There are three aspects which criminal cases, on examination by the Home Office, may take. First of all, it may be perfectly clear that there is no case for interference. Secondly, the original conviction may appear unsatisfactory, either because the evidence before the Court at the time of the trial was unsatisfactory or insufficient, or because of subsequent information which may have come to knowledge. In any of these circumstances the principle which would guide a Scottish Court of Law to a decision would be "Not proven." In the third place, there may be a clear establishment of the innocence of the person who has been convicted. The first and the last aspects are simple The second aspect is where the real difficulty comes in, and it is, I regret to say, a common case. There may be grave suspicion, such as makes it most undesirable to give a free pardon, and yet sufficient doubt to make it unsafe to maintain the conviction. If the man is in prison he can be released, and he sometimes thinks himself lucky to get out. Occasionally it may happen that in the desire to do the utmost for a possibly innocent man—especially if he has served his sentence—a free pardon is given, even though his innocence is not established. In many of these cases you have to consider the circumstances connected with the original charge and conviction. The man may have himself to blame for his conviction. Though he may not have actually committed the crime, he may have constantly associated with criminals, knowing them to be criminals; he may have had previous convictions which justify suspicion; or he may, by the unsatisfactoriness of his action, have himself to thank for a miscarriage of justice, if it be a miscarriage. Now, in connection with these cases, the further consideration may arise with 191 regard to compensation, which, at present, is given in rare cases where innocence has been established and where it is clear that the prisoner has not himself to thank for the trouble he has got into. I should be very glad to see this question of compensation for unjust imprisonment removed altogether from the Home Office and put into the hands of a Court of law. The demand for compensation, made to the Home Office and backed up by Parliamentary action, is, I think, a most difficult matter for the Home Secretary. Parliamentary pressure is put upon him, and perhaps it might be said that the Government would have great trouble if the adjournment of the House were moved; I do not say that has been the motive of anybody, but that is naturally a position which may arise. At any rate I would suggest to the House that the Home Secretary in his executive capacity is scarcely the man to decide on these cases. The House will remember the circumstances under which these cases have to be decided. After a long inquiry, after considerable difficulty, a decision is arrived at that a man has been unjustly dealt with, even though he might have had himself to thank in great measure. Then a demand is made for compensation. It is very difficult under these circumstances for the Home Secretary to stand out against the very natural and inevitable feeling of sympathy on the part of the public for a man who has been unjustly condemned. The public has very little patience with the plea put forward by the Home Secretary, based on perfectly sound administrative notions, that there are circumstances in the case against the granting of compensation. The general view of the public is, "Oh, never mind about that; if you say that he is so far relieved from the stigma that his innocence is established, grant him compensation." If you admit that, then comes the question of amount, which may be the object of a further agitation, and may be pressed upon Parliament. For these reasons I hope that sooner or later the power will be taken from the Home Office and handed over to a Court of law, so that the claim can be stated and fairly weighed. It is obvious that a great many difficulties arise owing to the considerations which I have put before the House. The balance of these considerations is 192 sometimes so equal that the decision brings immense responsibility to a man in the position of the Home Secretary. And, then, imagine the position of the Home Secretary, who may be cross-examined on the floor of this House by anyone who chooses to got up, wholly ignorant of the facts, and put every sort of difficult and delicate question, the answer to which would involve the disclosure of confidential information which it is practically impossible to give. The Home Secretary may have come to an absolutely right and sound decision, but, in spite of that, he is exposed to the attacks and the questions of half a dozen individuals, with one purpose or another—it may be for the purposes of the Press—honestly, I hope. I am not talking of any particular instance, but cases do arise, and I think I have said enough to show how unsuitable is the present method. At best it means a delay of justice. The House should not forget that. I hope that the hon. and learned Gentleman will not forget that under the present system when an injustice is done by a Court of law the opponents of the establishment of a Court of Criminal Appeal have to rely on the action of the Home Secretary, and the Home Secretary can only act after weeks, perhaps months, it may even be years, in the redress of a. grievance, and, therefore, it means at best a delay of justice.
§ MR. RAWLINSON (Cambridge University)
I have known, the Home Secretary frequently release persons within the week, and even in twenty-four hours.
§ MR. GLADSTONE
I have done it in twenty-four hours myself, but not where there were important questions.
§ MR. GLADSTONE
I think I may say from my own knowledge that those cases are rare and certainly in the bulk of those cases, which are generally known as the leading cases of miscarriage of justice, the decision has been long delayed. I think I have established my point. We hope that under the Court of Criminal Appeal, instead of a long delay, we will have the prevention, to a large extent, of miscarriages of 193 justice. I pass to my second argument, from the point of view of the Home Office, and I say very deliberately to this House that the general position of the Home Secretary in criminal cases is now almost unbearable. It is duo largely to a misapprehension of the functions of the Home Office. Even some leading newspapers seem to consider that the Home Office jurisdiction includes the functions of an Appeal Court, that there is a Department in the Home Office for criminal investigation, and that the Home Office is, in fact, responsible for all or any of the mistakes which may be made by the Criminal Courts. But over and above this misapprehension, which is honest and legitimate, there are less responsible newspapers, which, for their own purposes, re-try criminal cases in their own way. Let me observe that the objective is not always the Home Secretary. After all, the Home Secretary is paid to be shot at, he cannot complain if he be attacked; if he consent to take that office, he must expect what he gets.
§ MR. GLADSTONE
He is not surprised, at any rate. But in recent years it has become the practice in certain quarters to discriminate between one Judge and another. In criminal matters even a very strong Judge may make a mistake, while a Judge who is looked upon as less strong may be perfectly right. Some Judges who may not be so strong in certain directions may be excellent to try criminal cases, but the fashion now is that when, perhaps, a Judge, at some time or other, comes in contact with public opinion, he is a marked man; and whoa a notorious or prominent case happens to be tried by that particular Judge, or particular Recorder or magistrate, whoever it may be, then that unfortunate person is held up to the public as a man who was obviously unfit to try the case, and, therefore, because it was tried by that Judge the Homo Secretary must intervene. That is a tendency which is, at any rate, contrary to the interests of justice. But the practice is still worse for the Home Secretary. If ho is a lawyer he is told that ho is prejudiced in favour of the Courts, and that, by pro- 194 fessional habit, he is precluded from the common-sense lay judgment which is necessary in the Homo Office jurisdiction. If the Home Secretary was a layman, then it is said that he is ignorant of the law, that ho is unused to the handling of evidence and incompetent for any sort of judicial responsibility. Whoever the Homo Secretary may be. those who for their own purposes wish to re-try a case declare him to be incompetent unless he accepts their particular view. I go further. If the Home Secretary fortifies himself by the opinion of a distinguished criminal Judge, that opinion is discounted as that of a lawyer, who may have at one time held strong-political opinions, or because as a Judge he may have been identified with some unpopular decision. Even if a case is submitted to three distinguished legal authorities, what happens? Then, perhaps, the commissioner for a newspaper sets that aside with the cool statement that the case could not have been properly submitted and that some material facts must have been withheld. I speak with knowledge on this subject, and I speak from what I know has occurred. All this may be excellent copy for a newspaper, but the Home Secretary, for the reasons I have already described to the House, is powerless; he cannot reply; he cannot keep the public straight; the particular newspaper has it all its own way; the case for the accused is set forth with every kind of literary and editorial garnishing; the case against him, perhaps, is not stated at all, or, if it is stated, it is only stated for the purpose of being knocked down. The public are deluded into the view that there is no case against the criminal. Then there is the constant reference to the few, comparatively few cases, where there have been miscarriages of justice, or where the Home Office has been shown to be in error. For my part, I am not prepared now to admit that they have been at any time, for many years past, guilty of grave error. The constant reiteration of those cases lead people to believe that miscarriages of justice are of every-day occurrence. No reference is made to the hundreds of thousands of criminal cases which are annually tried in this country, to the thousands of cases which come under the review of the Home Office; but the one or two or three cases per annum, on which public 195 attention is aroused and in one way or another concentrated, are fastened upon while the hundreds and thousands of cases where there is no doubt as to the wisdom, justice, or accuracy of the decision of the Court, are never referred to. This practice is rapidly growing from year to year. Whether it is based on honest misapprehension, or the deliberate intention to use sensational cases for newspaper purposes, it is a public danger and it can only be guarded against by the establishment of a Court of law such as this Bill seeks to establish.
§ *SIR HOWARD VINCENT (Sheffield, Central)
said that no one could have heard the case put forward by the Home Secretary without being impressed by his earnest and emphatic language. Following the observations of his predecessor at the Home Office the House had been supplied with material for very serious reflection and consideration in regard to the Bill now before the House. The measure represented a considerable amount of outside public opinion. For many years past there had been a constant demand for a Court of Criminal Appeal in this country. He would not have intervened in the debate if he had not had considerable experience in reference to inquiries into the petitions of prisoners for several years. He knew that whenever a petition was received by the Home Office it was dealt with in the most careful and earnest way upon its merits. In serious cases the question was usually referred to the Solicitor for the Treasury and the Director of Public Prosecutions, and in conjunction with the Criminal Investigation Department inquiries of an elaborate character were made. One great advantage of the present system was that after the inquiry the result was put before the Home Secretary without being bound by the legal technicalities of evidence. That was an enormous advantage to the prisoner whose petition was under consideration. If the appeal lay only to a Court of Criminal Appeal it must be guided absolutely by the rules of legal evidence which necessarily shut out many facts and circumstances that could perfectly well be brought to the knowledge of the Secretary of State who had power to recommend the release of a prisoner or the reduction of his sentence. That power of taking outside 196 evidence and interviewing people in the interests of the prisoner was always exercised by persons who had not any interest in the matter, and evidence was often taken which could not possibly be admitted in a Court of law. Many persons who had had practical experience in this matter felt very strongly that, although there was a considerable volume of public opinion in favour of a Court of Criminal Appeal, it should be hedged with every possible precaution to avoid a block in the administration of justice, and also to prevent untold expenditure. This Bill was undoubtedly a great improvement on the Bill introduced last session. That measure was subjected to strong criticism at the hands of most experienced lawyers and Judges. It was reviewed with great ability and force by a lawyer who had had more experience than anyone else now living in criminal cases—he referred to Sir Harry Poland—who had always been most anxious to stretch every point in favour of the accused. Evidence of that kind ought to receive very careful and earnest consideration. No doubt the Home Secretary and the Law Officers of the Crown had seen his conclusions upon the Criminal Appeal Bill of 1906. Many of the points urged against the Bill of 1906 had been given effect to in the measure now before the House, and for those concessions and alterations the country were greatly indebted to Sir Harry Poland. The establishment of a Court of Criminal Appeal was in no sense whatever a new matter, for upwards of thirty Bills had been presented to Parliament upon the question, none of which had ever found general favour. Nevertheless the Judges of the country had very carefully considered the establishment of a Court of Criminal Appeal, and a very remarkable letter was written by the late Lord Russell of Killowen on the 29th April, 1895, to Lord James of Hereford, giving the opinion of the Judges who met to consider the matter. It was a meeting of twenty-two Judges, and as they had before them the opinion of three of the Judges who were absent, it represented the opinion of twenty-five Judges in all. That letter stated that—They were further unanimously of opinion that there should be no new trial in the-criminal case.197 Lord Russell of Killowen in his letter i quoted the opinion of the late Master of the Rolls, Lord Esher, who said—Finally their Lordships desire to make it clear that where a case is referred to the Court by the Home Secretary, such Court should he empowered to deal with it in view of all the facts and circumstances, whether brought forward at the trial or not, and whether founded on strictly legal evidence or not—in line, upon the principles upon which the Home Secretary is now supposed to act.Later on it was stated in urging this view upon the public that a Select Committee was appointed, but owing to a change of Government they made no report; they recommended that the Committee should be reappointed in the next session, but that was not done. Something of the same sort happened in 1897. His opinion was that the House should hesitate before it embarked upon a Bill of this kind without a full and complete inquiry before a Select Committee. He did not think that any such inquiry had taken place, and if a Select Committee composed of fifteen members was thought to be too many and would involve too great a consumption of time, then a special Committee might be set up for the purpose. He did not think they ought to embark upon a matter of such extreme gravity, involving an enormous number of appeals before the Judges, a great block in the administration of the business of the country, and vast expenditure, without a full and complete inquiry of a technical and expert character. No doubt the Bill would be read a second time. The late Home Secretary had already stated that he had no intention of opposing it, and for his own part, although he felt there were many defects in the Bill which ought to be remedied, he would be unwilling to oppose the Second Reading. He submitted, however, to the Home Secretary and the Law Officers of the Crown that they should consider seriously whether it was advisable to refer this Bill to a Grand Committee, and whether that would be a satisfactory tribunal. It was well known that Grand Committees were extremely difficult to man, and it was not easy to secure that the Government should be adequately represented, because on a measure of this kind the Law Officers of the Crown would have to be constantly in attendance. If the Second Reading were carried he appealed earnestly to the Government to refer the measure either to a Select Com- 198 mittee or to a special Committee. In this connection he would like to quote a statement from the writings of Lord Macaulay in his essay on "Warren Hastings," in which he said—These rules, it is well known, exclude much information which would be quite sufficient to determine the conduct of any reasonable man in the most important transactions of private life. These rules at every assizes save scores of culprits whom Judges, jury, and spectators firmly believe to be guilty.In the interests of the prisoner, of public justice, and of society, and for the protection and good order which were the objects for which the criminal law was in force, he thought that a Court of Criminal Appeal should be given those powers. The late Home Secretary had spoken of the seriousness of enabling every prisoner convicted on indictment to appeal. He agreed with the Home Secretary that it was necessary that there should be some kind of risk in making an appeal. He hoped it would be possible to do something to lessen the present inequality in sentences, which was one of the unfortunate incidents in the administration of criminal justice. In 1905 there were 10,118 persons convicted on indictment, and of those 6,790 had been previously convicted. As the late Home Secretary had stated, a large proportion of those persons would, in all probability, have appealed, because there was provision in the Bill for legal assistance at the expense of the public. If only a fourth of the number appealed what a block there would be in the administration of justice, and how difficult it would be to find the three Judges of the High Court necessary to sit in the Court of Criminal Appeal. In 1905 there were 674 petitions addressed to the Home Secretary by prisoners complaining that they had been wrongly convicted, and 850 petitions by persons complaining of over-severe sentences. The figures represented 1,524 cases, but that number would be nothing compared with this number of prisoners convicted on indictment who would appeal under this Bill, because they would have everything to gain and nothing to lose. The Home Secretary had referred to the fact that this was the only country in which there was no Court of Criminal Appeal. That was perfectly true; but speaking with considerable knowledge of the subject he could say that there was no country in which such efforts were made to get at the real facts. 199 One of the most serious things in connection with the administration of criminal justice was the question of appeal. In other countries, in cases of capital punishment the prisoner was kept in absolute ignorance as to whether the sentence would be carried out or not, and he was only informed that his appeal had been rejected when the authorities came in to lead him away to execution. Nothing of that sort existed in this country. In France a sentence could not only be modified, but the Cassation Court had the power of increasing the sentence. He was not quite clear whether Subsection (3) of Clause 4 was sufficient to give that power. The sub-section ran as follows—On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence (whether more, or less severe) in substitution there for as they think ought to have been passed and in any other case shall dismiss the appeal.He might take it that the Attorney-General considered the subsection gave ample power, and of course ho bowed to his opinion on the matter. The law's delay was one of the scandals of the time, but that was not the fault of the Judges. To take three Judges away from the ordinary work of the Courts was a very serious matter indeed. Great care was necessary before embarking on a new method of procedure. An expert in criminal cases, whose name ho had not authority to mention, had written to him as follows—The Home Office is far better able to deal with prisoners' petitions than a Court fettered by fixed rules. It is clear that by the Home Office employing the police at Scotland Yard or in difficult cases employing the Director of Public Prosecutions who can direct the inquiries of the police the truth can be got at much better than by Judges sitting in open Court.When he himself was Director of the Criminal Investigation Department at Scotland Yard he made inquiries under instructions of different Home Secretaries. The late Sir William Harcourt took enormous pains to arrive at the truth in these cases. Sir Robert Anderson, who was for fifteen years the head of the Criminal Investigation Department at Scotland Yard, had written to him in these terms—I am confident that the Bill would leave prisoners in a worse position than at present. 200 I cannot recall any important case in which I furnished the Secretary of State with a report which led him to discharge a convicted prisoner where the police inquiry which led to that report did not go entirely outside the limits of legal evidence, and under the Bill this advantage would he lost to the accused.He was sure no one would wish to introduce any Party feelings into this matter. What the whole House wanted was to make the administration of criminal justice as good as it possibly could be, not only in the interest of society at large, but also in the interest of accused persons. Of course, there had been cases of miscarriage of justice, but, as the Home Secretary had said, they had been very few and far between. They all recognised the enormous difficulty and responsibility of the position of Home Secretary. It was to the credit of the right hon. Gentleman and his many predecessors that the public had been so satisfied for very many years with the manner in which they had advised the Sovereign in regard to the exercise of the prerogative of mercy.
§ *MR. STANGER (Kensington, N.)
said he was glad that the late Home Secretary had given a favourable reception to the Bill. The speech of the right hon. Gentleman was in strong contrast with the speech of the hon. and learned Member for Cambridge University who moved the Amendment now before the House. While he agreed with a great portion of the right hon. Gentleman's speech, he regretted that he was not yet converted to a belief in the desirability of an appeal on the facts. He trusted that on that point the Government would stand firm, because in his view if that power was taken out the Rill would lose more than half its value. The hon. and learned Member for Cambridge University had made a great point of the expense which would be incurred if the Bill were carried into law, going so far as to argue that, because of the expense and of the great block of business which he anticipated would take place, the machinery provided by the Bill would break down. As to the machinery breaking down he thought his hon. and learned friend's imagination had carried him away. The position was more accurately stated by the late Home Secretary when he suggested that it was only 201 in the earlier stages of the operation of the Bill that any block was likely to occur. Ho did not propose to discuss the question of expense, because if the Bill was bad they ought to reject it, because it was bad, but if it was good, he thought no one would say that the price to be paid was too high for the benefits they wore seeking to secure. He was not one of those who thought that prisoners were never wrongly convicted. He was afraid that the number of cases was understated rather than overstated. He had had a good many years experience in the administration of the criminal law, and, while he perfectly agreed that every effort was made to prevent the conviction of innocent people, he was driven to the conclusion that the number of innocent persons who were convicted from time to time was not inconsiderable; and if this Bill would have the effect of reducing that number he thought that any expense which would be rendered necessary would not be too high. He understood that the hon. and learned Gentleman who moved the Amendment was not opposed to the Bill so far as it provided an appeal on points of law. There was no appeal on questions of law at present unless the presiding Judge gave permission. He thought there was a general opinion that that was a state of things which ought to be put an end to. The Judge whose opinion was to be brought into question ought not to have the right of preventing the appeal. No doubt in refusing leave the Judge acted from the most conscientious motive, but they ought not to lose the opportunity of correcting an error merely because the Judge who committed acted conscientiously. It was most desirable that they should, if possible, put an end to the glaring inequalities in sentences which sometimes shocked the public mind in eases where the offences were similar. He know many instances, but he would mention only one. Four or five men were charged with a street robbery, and were tried at quarter sessions. All but one were convicted and were sentenced to short times of imprisonment. In the case of the one the evidence was less clear and the jury disagreed, the result being that he was tried again at the assizes and sentenced by the Judge of assize, not to a few months imprisonment like his companions, but to a long term of penal servitude. Thus for the same offence committed at the same time under the 202 same circumstances, one man got a ten times heavier sentence than the rest owing to the circumstance that the evidence was loss convincing in his case than in theirs. When this Bill was last before the House it was constantly urged there as well as in another place that there should be no appeal against the facts. He disagreed with that, but he would try to put the argument for it as strongly as he could. It was said that juries were very careful in sifting the evidence. He quite agreed. His hon. and learned friend who seconded the Amendment thought that there could be nothing finer than the demeanour of a jury in a criminal trial. There he also agreed. But it was said that if the jury were told that there would be an appeal from their verdict their sense of responsibility would be undermined and that that would operate to the serious disadvantage of the innocent accused. If there was any truth in that it would be the most damning argument that could be adduced against the Bill. For what could be worse than that this Bill instead of lessening the number of cases in which innocent persons were convicted should actually increase it? He did not believe it for a moment. Nevertheless the argument was supported by high authority, and he would like to quote from the speeches of two very eminent persons upon the subject. The Lord Chief Justice on 22nd May, 1906, said in discussing the Bill of that year—What is the chief objection to the proposed change? It is my distinct conviction that such a procedure as is contemplated will undermine altogether the responsibilities of juries.… What is it that we now say? We have to tell them (the juries) that theirs is the responsibility in matters of fact. We have to tell them that there is in this respect no appeal from their decision, and we have to tell them that, unless they areas satisfied as they would be in any important event of their lives, they ought to give the accused the benefit of the doubt, and return a verdict of acquittal. The whole of that observation would be cut away from us.He hardly liked to venture to differ from so great an authority, but he thought that there was no ground for the remark that "the whole of that observation would be cut away from us." A very large part of it would still remain; it would still remain the duty of the Judge to tell the jurymen that theirs was the responsibility in matters of fact. 203 It would still remain his duty to tell them that unless they were as satisfied as they would be in any important event of their lives, they ought to give the accused the benefit of the doubt and return a verdict of acquittal, so that in fact the whole observation would remain except the clause as to there being no appeal. Again Lord Halsbury, on 27th March, 1906, said—I think that the feeling of responsibility among jurymen has been of infinite value in preserving the care with which justice is administered in this country.He desired with great respect to associate himself entirely with that observation. But Lord Halsbury wont on to say—Under this Bill that will be swept away.He could not help thinking that Lord Halsbury in that remark had allowed himself for once to use extravagant language. What was a juryman? he was a man who came not often, perhaps once in his lifetime, at any rate not more than two or three times, into Court, and took an oath that he would give a true verdict according to the evidence. The juryman must know that it was a very responsible task which be had to perform, and he quite agreed with hon. Members opposite that as a rule he performed it well. But why should the juryman divest himself of his responsibility because he knew there might be an appeal from his verdict? He should think that the knowledge that an appeal was possible, if it affected the minds of the jurymen at all, might make them even more careful in order that they should not be found out to have been in the wrong, or be spoken of as having made a mistake. His own view was that the establishment of a Court of Criminal Appeal would not have any effect on the minds of the jury, and that they would discharge their duties which were judicial duties in the same judicial frame of mind as before. It had been said that there were three stages in the career of a Judge. In the first stage he was nervously anxious to do what was right, and to avoid what was wrong; in the second stage he believed that he always did right, and never did what was wrong; but that in the third stage he did not care a straw whether what he did was right or wrong. He should be sorry to vouch for the truth of this, but his point was that the 204 juryman never got beyond the first stage. The authority he was clothed with was brief. He hoped that the Government would not yield to the suggestion that that part of the Bill should be struck out, or that the Bill should be referred to a, Select Committee. Although he was a cordial supporter of the Bill ho was not sure that it would not disappoint many people who had raised their hopes somewhat too high. As long as human nature remained what it was, and until the general level of character and intelligence had been raised to a very much higher standard than at present, he was afraid that these occasional judicial tragedies would occur. As long as perjury existed, as long as rogues were clever, and honest folk were stupid, wrong decisions would sometimes be given. Meanwhile they must do their best to make the machinery as perfect as they could, preserving, at the same time, the Home Office machinery. Believing that the Bill was a. step towards the goal they ought to have in view he cordially supported it, in the hope that by carrying it into law, Parliament might after long years of waiting, remove what was at present a real blot on our judicial system.
§ *MR. BUCKMASTER (Cambridge)
said that the object which the Bill was framed to secure must command the sympathy and support of all sections of the House. To think of an innocent man being kept in prison was so horrible that he was satisfied no discussion as to the best means of removing the possibility of such an evil would take place on Party lines. He thought before this measure was examined it was of considerable importance to see what was the present criminal procedure and how this measure affected it. At the present time, except in cases of an appeal from Courts of Summary Jurisdiction, there was an appeal only on a question of law when a special case was granted by the Judge at his discretion. The Bill proposed that an appeal on a question of law should be no longer discretionary, but should be made absolute. That was a provision which ought to be passed without any delay; but when they came to the other parts of the Bill which gave a right of appeal on controversies as to fact and against the sentence, he looked upon them 205 as fraught with the possibility of great mischief. He thought the promoters of the Bill felt that if they gave that right of appeal without any protection at all the Courts would be glutted with appeals. If the motives generally supposed to influence a lawyer's action wore the only ones that guided their judgment they would welcome this Bill with open arms, for it would crowd the Courts with work, and would line the pockets of members of the legal profession with money drawn from the lean purses of some poor prisoners' friends. The promoters of the Bill, recognising the difficulty, had felt it necessary to safeguard its provisions by providing that a man who appealed against his sentence might have it increased, and the man who appealed on a question of fact might find himself convicted by another Court on evidence which was not before the Court of first instance, and upon which the jury had not found a verdict. That most grievously offended the instincts of people who would wish to see the preservation of an unfettered system of justice. If there was a right of appeal from a sentence of imprisonment, what right had they to put a man under a penalty if he exercised his right? The reason for the provision was that the hon. Members who introduced this measure were well aware of the enormous additions of work which would arise unless its provisions were safeguarded. When they had got an appeal on a question of fact what was to be the function of the Court before whom the appeal was brought? It was most important to see what the Bill provided in that respect. It provided that the Court of Appeal might set aside a verdict on any ground on which a verdict could be set aside in civil proceedings; but the House of Lords had laid it down that such a verdict should not be interfered with unless there was such a preponderance of evidence as to make it unreasonable and almost perverse, that a jury, properly assisted and directed by a Judge, should return such a verdict. That was the only principle to be applied on an appeal on a question of fact, although he agreed that there were other cases in which they might exercise their powers.
§ MR. F. E. SMITH (Liverpool, Walton)
said he did not quite road the Bill in that way—that the Judge before whom the 206 appellant was convicted could have his decision set aside on the ground that it was wrong in law and in fact. It was an alternative. It was a judgment, and not a verdict.
§ *MR. BUCKMASTER
said that was the whole point; the grounds upon which the verdict could be disturbed were as he had said. Everyone knew that it was perfectly impossible to reproduce before a Court of Appeal the atmosphere that had affected the verdict in the Court below. The hesitation of the witnesses in answer to questions in cross-examination, the flinching of a man fit an awkward moment, the demeanour of a man who had given evidence of facts that affected, and rightly affected, the jury—all the material that impressed the jury who heard the evidence was obliterated when the proceedings were reduced to nothing but the flat monotony of a shorthand note. He submitted that grievous wrong might be done if this Bill passed. He did not agree that the responsibility of the jury would be swept away, but he unhesitatingly said that the verdict would be weakened, and there would not be that full and solemn responsibility attaching to the position of the juryman which attached to it now, when he knew that a mans liberty, his reputation, it might even be his life itself trembled solely on their verdict and hung upon the hazard of their lips. If in only one case in a thousand they had a jury affected by this consideration where otherwise they would allow a man to go free, the Legislature would have inflicted the very wrong which this Bill was intended to remedy. It was, however, sufficient for his purpose to show that the responsibility of the jury would be lessened, if it was only in a trifling degree. It was quite unnecessary to suggest that they would be swayed from a sense of their duty; what would happen would be that the verdicts of juries would be assimilated to verdicts in civil cases, just as their verdicts when under review would be reviewed on the same principle. No doubt there were cases in which there had been miscarriages of justice, which had shocked the public, but they were wrong if they thought there was no substitute for the remedy which this Bill proposed. He recognised that there was a number of things that required alteration in the administration 207 of the criminal law. First of all, to his mind it was essential to secure that the men who administered justice in every Court should be from the highest to the lowest the men best fitted for the duties they were called upon to fulfil. Why was it, if this measure had some measure of justice in it, it was right to apply it to England and not to Scotland? This Bill was not applied to Scotland, because there was no claim for it from that country, where the Judges except in the Courts of Summary Jurisdiction were paid men appointed on account of their fitness for the office. He had no doubt that the criminal law required revision, and that there was a great deal that required amendment in the administration of justice; but the first thing was to secure that they had men on the Bench in Quarter Sessions and elsewhere fitted to discharge the duties entrusted to them. If this were a Bill for that purpose he would give it his most cordial support, because he believed it would be found that where questions were raised with regard to a judgment or sentence it arose from a weakened confidence in the tribunal. It was no use disguising the fact that the judgment of our Judges had ceased to command the confidence of the public and of the profession. The reason was plain, and the cause might be removed. Judicial offices, from the highest to the lowest, had been tossed to this man and to that as a reward for Party service, or, still worse, for personal favour. The Lord Chancellor said he wanted to keep these promotions outside the pestilential atmosphere of Party service. It ought to be an improper thing for a Government to appoint a man who was notoriously unfit, he did not say by reason of his character, but by reason of disposition or temper, of the lack of learning and experience, to discharge the duties he was called upon to fulfil. If steps were taken to secure that every man who administered the law was a man fit to administer it, the main cause for this Bill would have disappeared, and there would be removed from the great profession to which he belonged the taint which had always clung to it—the taint of time service.
§ MR. F. E. SMITH
said that while he did not dissent from the view that Judges should be appointed without regard to political considerations, or rather 208 that incompetent persons should be appointed merely because they were politicians, statistics showed that appeals during the last ten years were not substantially fewer from the decision of those Judges who had formerly taken no part in Party politics than from the decision of those who before being raised to the bench were active politicians.
MR. BUCK MASTER
I cannot agree; but in any case that is not the question. The question is—Who are the Judges, who command the confidence of the public and of the profession? I unhesitatingly say the men who enjoy that confidence to the least degree are the men who have been the subject of political appointments, who ought never to have been made Judges.
§ MR. F. E. SMITH
said that, having been responsible both for prosecution and for defence on capital charges, he had felt the desirability of an appeal on questions both of law and of fact. There was, indeed, absolute unanimity that there ought to be an appeal on questions of law. He could not, however, agree with his right hon. friend the late Home Secretary, that it was either undesirable or impracticable to have an appeal on questions of fact. They were told that it would weaken the care and attention given by juries to criminal cases. But those who practised before juries in civil cases (which might involve the issue of fraud) would refuse to assent to the view that the care they gave in those cases was in any way lessened by the knowledge that there was an appeal. If responsibility had not been sapped in civil cases, why should it be sapped in criminal cases? Unless they gave an appeal on questions of fact they would not deal with cases of the kind which had most shocked and exercised the public conscience of the country in the past. He would deal with a few of those cases. In 1867 a man called Wiggins was hanged in London on the capital charge, and since his execution the most disquieting doubts had been widely entertained on not unsubstantial grounds as to the propriety of the sentence. He could give the House a large number of cases indeed where men who, after undergoing their sentence and the horrors it entailed, were found to be 209 innocent. There was the case of Palizzione in 1865; Harbron of Manchester; the Durham case of Hayes and Slane in 1873; of three men hanged at Leicester in 1877, there was no doubt that two were innocent; and the well - known Chester case in 1889. As an illustration ho would take the case of Palizzione, who was tried in 1865 for the murder of Michael Harrington before a most careful Judge, whose appointment had been non-political—Baron Martin. That Judge told the jury that he had never heard more direct or more conclusive evidence. The prisoner was sentenced to death, but respited. A humane student of the case, a Mr. Negretti, exercised himself and collected new evidence. Upon that new evidence Palizzione was respited by the Home Office, and finally the minor charge of manslaughter was brought against another man, Palizzione's cousin, who confessed that he had been guilty of the crime of which Palizzione had been convicted. What was the position of the hon. and learned Gentleman who had just spoken? He was content to say that, because there might be some possible disadvantage, they should not deal with it at all. It was simply horrible that even in one case such a thing should be possible, and that there should be no chance of the interposition of a Court of Appeal to alter it. Had appellate tribunals any value at all in civil matters? Was the cumulative experience derived from the fact that they had sitting to deal with those matters of appeal, four, five, or six trained minds to give a fuller and more dispassionate consideration to the sentence, of no value? If that were so, lot them sweep away the whole appellate system. In this way they would effect economy while ending an expensive superfluity. That view, however, could not be put forward. If it was necessary that in civil matters an opportunity of revision on the most trivial points should be given, and within limits on issues of fact, it was intolerable that on issues of life and death the same safeguards against error should not be provided. As to questions of fact hon. and learned Gentlemen had to found them-selves on some distinction between criminal and civil issues. If it was the general sense of the House that there should be an appeal on questions of fact, how far was it necessary to reinforce that view? He would reinforce it by a single illustration. 210 He thought the Home Secretary had spoken with thinly veiled reference to the Edalji case. He did not intend to allude to it except to show how very inadequate the present remedy of appeal to the Home Office was for dealing with cases of that kind. The Report said that the case was one for strict ruling, for several reasons which it gave, that the findings of the Committee were of the most disquieting kind. The police in the case set to work to deal with the charge against this man with the bias against him that he was guilty, and the Report of the Committee which inquired into the case said the conviction was unsatisfactory, and that after a most careful consideration of all the facts—not, it would be observed, the law—of the case, they could not agree with the verdict of the jury. Vet they added that the case was one in which the accepted practice of the Home Office did not warrant the Homo Secretary in interfering with the sentence inasmuch as no fresh evidence had been discovered. He most profoundly dissented from that sentence of the Home Secretary in which the right hon. Gentleman said there were many cases in which the verdict was unsatisfactory but it was not safe to grant a free pardon. It had always been the pride of our jurisprudence as contrasted with that of Scotland and of other countries that we know no half-way house between guilty and not guilty. If the prosecution could not satisfactorily prove the guilt of the prisoner, he should be treated as innocent. Yet, in the Edalji case, they had a Committee finding that the verdict was unsatisfactory. The practice of the Home Office had always been not to re-open cases merely to reconsider evidence which had been already fully examined at the trial. A Court which would not reconsider evidence and would only act if fresh evidence was adduced was no Court of Appeal at all. The only appellate tribunal for a prisoner in this country was the Home Office, and that only when fresh evidence was obtained, or, where there was no fresh evidence, where there had been inadequate and improper treatment of the existing evidence. There was no right of appeal so far as fact was concerned. It would be idle to deny, on the part of those who were anxious to see reform, that there was great force in the practical objections urged against the Bill by his hon. and learned friend. Let 211 them consider those objections. In the first place, the over-ruling of the decision of a jury on questions of fact by a number of Judges deciding by a majority was open to grave objection, but that was a point which might be considered in Committee, with reference to the alternative method of sending the case back for a new trial. The common sense of the community would be very much shocked by the idea that the jury, who had seen the witnesses in the witness box and could judge whether they were to be believed or not, were to be over-ruled by three out of five judges sitting in London, who would not see the witnesses. It would require very careful consideration which plan would be preferable, and at present he was not at ail sure that he himself did not prefer the method of a new trial. But they were told that the number of applications in such cases would be very great indeed. Upon that point Sir Harry Poland had written a letter to The Times which was deserving of the most careful attention. He pointed out that the present Bill was unworkable, and even those who differed from Sir Harry Poland must recognise that his opinion was entitled to the highest weight. Sir Harry Poland pointed out that, in 1905, 604 petitions were sent to the Home Secretary on the ground of wrongful conviction, and 850 on the ground that the sentence was too heavy, and that in that year 10,800 people wore convicted on indictment. As to the number of appeals which would have to be heard, therefore, he was not himself greatly impressed by the figures put forward by Sir Ham-Poland and other critics of the Bill. So far as questions of fact were concerned there would be no appeal, except by leave of the Court of Appeal, to raise the matter by way of appeal, and he gathered that they could not apply to the Court of Appeal for leave to appeal except on notice to the other side Assuming that the number of applications was very considerable, he saw no reason for supposing the number of applications for a new trial would be in excess of the number of petitions now presented to the Home Office, and he had no doubt that the Court would be able to deal successfully with a very large number of these applications in a very short time, There was another safeguard. The time during which the appeal was pending 212 would not be taken off the sentence, and he found it difficult to believe that men who were conscious of guilt would add to the period of their imprisonment for the mere pleasure and excitement of seeing a solicitor in London. If they took the number of persons who pleaded guilty he thought they would find that the applications would not be so many as has had been suggested. He could speak of the appointment of new Judges with greater freedom, perhaps, than those who had a more exalted position in the profession. He thought it essential, if the Bill was to be successfully carried out, that there should be a considerable addition to the strength of the High Court Bench, and the House, if convinced that the Court of Appeal would check doubtful convictions, would not shrink from providing the extra expenditure involved. In the belief that cases had occurred in the past which ought to-satisfy them that there was doubt and uncertainty in some convictions, and that the doubt and uncertainty might be to some extent removed by the proposals-of the Bill, and reserving to himself the fullest possible liberty to consider what was the best method of providing an appeal on questions of fact, he asked the House to allow the Bill to be read a second time.
§ MR. ATHERLEY-JONES (Durham, N.W.)
said that, whatever might be the view of hon. Members as to the merits of this Bill, no one would be disposed to cast any doubt upon the circumstances which brought this matter to a head. It was the intention of the Bill to secure immunity from conviction to innocent persons, and he was glad to think they were going to discuss the Bill and vote upon it without any restraint of Party obligations. It was obvious that that must be so, because they might reasonably assume that, to whatever party they belonged, all Members were alike concerned in seeing that the administration of justice was as perfect as possible. No political considerations were involved in matters of that kind: they were all concerned in the serious purpose of protecting the innocent from unjust conviction. In dealing with the Bill, and it was not the first time that he had spoken in the House upon this topic, be set aside all miner considerations. He did not care about expense, delay, or 213 inconvenience. Those were matters for which they must take the responsibility. The sole test to apply in dealing with this measure was the test of whether they were likely to secure for innocent persons or persons unjustly convicted an opportunity of putting right the wrong to which they had been exposed. Therefore ho asked hon. Gentlemen on both sides of the House to believe that in the observations which he proposed to make ho was solely concerned with the interests of the accused persons. The main consideration which everybody should have in their mind with regard to this question was whether, in giving this somewhat limited right of appeal to persons convicted on indictment, they were doing anything which might tend to shake the responsibility of the primary tribunal. If they could reasonably assure themselves t hat the wrong which had been done in justice would be put right, if they could assure themselves that the tribunal to which the appeal lay would, in the vast majority of cases, right the wrong that had been committed by the primary tribunal, that consideration went. But unless they could satisfy themselves that by this Bill the tribunal of appeal would almost invariably set right the wrong which had been committed, that consideration must have the greatest weight. He could not speak with any large experience; he could speak with some experience as counsel and some experience in a minor capacity, but he could say, without fear, that there was nothing that weighed more in the mind of the tribunal that had to deal with criminal cases than the fact that the decision at which they arrived would be for all practical purposes final. It might not be final to the extent that a man might not be released from prison afterwards, but so far as the conviction stood, it was final because the conviction remained. By this Bill they were going to shake that sense of responsibility. Did anyone believe it was not felt? Let them go to the Criminal Court and listen to what the advocate said. The advocate would invariably appeal to the jury in almost hysterical language, and toll them that if they found the man guilty they would consign him to prison, from which j there was no escape, and that they would fasten on him a conviction from which there was no emancipation. For his part ho would say that it was better that there should be an occasional mis- 214 carriage of justice than that they should afford an opportunity for the exercise of less vigilance and care on the part of the tribunal. He knew the most plausible argument which had been adduced in favour of this Court of Appeal was that if there was a controversy about twopence in a civil action they could go on without leave from court to court, from tribunal to tribunal; that they could go to the keenest intellect in the land for the purpose of arriving at the momentous decision as to whom that twopence belonged; but that in the case of the life and liberty of a man they could not. By analogy that argument was used for supporting a measure of this kind. It was said that human life and liberty might be at stake, and yet to the men whose life and liberty were at stake they denied the opportunity of appeal which they conceded to others in regard to disputes concerning property. It was a plausible argument but as fallacious as plausible. In the first place, if the' took a civil action the issues were usually various and complex. But in a criminal case the issue was single and simple. Obviously a civil case afforded many more grounds, many more opportunities of raising questions than a criminal lease. Secondly, in civil actions there arose numerous points of law, more or less difficult to settle, while in the criminal case the law was crystallised, and it was very rarely that difficult or complex questions of law arose, except perhaps in commercial cases. Thirdly, there was not the same sense of responsibility on the part of the tribunal in the civil case that there was in the criminal case. There was more liberty. He could give, if necessary, further illustrations as to why there should be an an appeal in civil, but not in criminal cases. In a civil case there were many points which arose which took the other side by surprise, but such points could not arise in a criminal case. He would remind the Home Secretary that the indictment itself was, in fact, an appeal. The case had already been heard, all the evidence had been recorded, and no questions of surprise could arise, and if any additional witness was brought in on the trial, a copy of the proof of the evidence that that witness would give had to be supplied to the other side. Therefore there was no analogy between civil and criminal cases. The magistrate, it was true, did 215 not go into the merits of the case, except so far as to ascertain whether there was a prima facie case against the prisoner. He only committed him when he found there was a prima facie case. But that was not the point of his argument. The whole point of his argument was that while the evidence differed in the civil case, in a criminal case it was set out, and from that evidence no departure could be made. Therefore, when a criminal case came on for trial it had already been thrashed out, so far as the evidence was concerned, before the first tribunal. Let the House observe that there wore very few appeals in civil actions merely on questions of fact. He did not forget that recently they had had that innovation in trials without jury where facts as well as law could be reviewed, but in all cases where there was a trial by jury the appeal was to decide questions of law. It was perfectly true that they might go to the Court of Appeal on the ground that the verdict was against the weight of evidence, but the Attorney-General knew perfectly well that it was very rarely indeed that the Court of Appeal had disturbed the decision on that ground. It was only when they were satisfied that the verdict was a perverse verdict that they interfered. He would now examine the Bill, and he thought he would be able to satisfy the House that it was open to the most stringent objections. First of all, the appeal was to be on points of law, and there were very few appeal on points of law in criminal cases, partly because the machinery for that purpose was nonexistent, but mainly because very few points of law rose. But the man who would benefit from this Bill was the male factor. He was not the ordinary criminal, the petty larceny man. The men who would invoke the Court of Appeal would be the fraudulent company promoter and the fraudulent bankrupt; men of the type of those who had been tried by a jury and sentenced after a verdict of their countrymen. So far as the common criminal was concerned the appeal on a question of law might be dismissed. The test which was applied by the Judge and which he directed the jury to observe at a criminal trial was this—that if they had any reasonable doubt as to the guilt of the prisoner they were to acquit him. The test was not that if they had any reasonable choice to 216 convict they might convict him, but if they had any reasonable doubt as to his guilt they must acquit him. Let them assume the man was convicted and he said to his solicitor, "Surely there was a reasonable doubt in this case of which I ought to have the benefit. I ought not to be convicted on evidence of this character." Then his solicitor replied, "True, but you have not to satisfy the Court of Appeal that there is a reasonable doubt of your guilt, you have to satisfy the Court of Appeal that no twelve reasonable men ought to have come to that decision." The section of the Bill said that the Court of Appeal should allow the appeal if they thought the verdict of the jury should be set aside on any ground on which a verdict of the jury might or should be set aside in a civil action. Now the verdict of the jury in a civil case could only be sot aside if it was a perverse verdict. How many verdicts of juries in criminal cases could be set aside in the Court of Criminal Appeal on the ground that they were perverse? A totally different standard was applied to the trial of criminal cases, and for that reason the Bill was fatuous and could not operate. That was a fatal blot on the Bill, and destroyed all its value for this purpose. But the matter unfortunately did not end there. Hon. Members would agree with him that if there was to be an appeal that appeal should be as free as air, there should be no restriction. If they were to go to the Court of Appeal upon any civil dispute, still more should they have a right to go to the Court of Criminal Appeal upon any question. But if they appealed in criminal cases they wore saddled with this penalty, that the time the appeal was pending should not be counted as part of the sentence. A man was committed, and said to his attorney that he was of opinion that there was a reasonable doubt. The attorney agreed, but pointed out that he had not to satisfy the Court that there was a reasonable doubt of his guilt, but to satisfy them that twelve reasonable men ought not to have come to the conclusion they did; that if he appealed he might have to wait six months before his case came on—because the House must remember that there were 10,000 convictions annually in this country, and many were of persons well able to avail themselves of the facilities of this Bill on. 217 account of their wealthy connections; during that time he would have to remain in prison, and if the appeal did not succeed that six months would not count towards the sentence. Would not the criminal in many cases say that if the same test was not to be applied in the Court of Appeal as was applied by the jury, he had better take his sentence rather than appeal with that penalty over his head? He knew the difficulties of the position, he knew that the public conscience had been excited recently in cases which had been dealt with most unsatisfactorily by the Home Office. He was not referring now to the recent case of Edalji: he was referring to the case of Beck. He admitted that the machinery for securing the acquittal of an innocent man was very unsatisfactory and very incomplete; but the House must bear in mind the fact that, although the machinery was incomplete, they were now making a departure which was not sanctioned by the jurisprudence of any civilised country which they were entitled to regard. In France it was true there was an appeal limited to matters of law. The Home Office was unsatisfactory, because if a man was convicted he wrote to the Home Office, and they wrote to the officials connected with the case, to the Judge and others connected with the trial, and asked for a copy of the depositions, and also for a copy of the notes of the learned Judge who tried the ease. All that was worthless. Lord Justice Fitzjames Stephen, than whom no greater authority on criminal matters ever existed, expressed his conviction that legislation of this kind would be the death blow of trial by jury. He would not go so far as that himself, but he would go as far as to say that the administration of the Home Office would be improved if it provided competent men, trained men who could be obtained from the junior ranks of the Bar and servants of the Crown, whose duty should not be in the first instance to judge, and try, and read depositions, but to inquire de novo, and then to direct as a result of that investigation whether or not there should be a new trial. The Home Office had much larger powers than this appellant tribunal could possibly enjoy. The tribunal could only deal with the evidence before it; they had no means of calling any fresh evidence. The Home Office had. He believed that if they 218 improved the machinery of the Home Office and provided it with a staff who could undertake the duties of investigation, and empowered the Home Secretary to direct a new trial, they would moot all the reasonable requirements of law and justice. It was with the greatest reluctance, however, that he opposed this measure, because he knew it had been undertaken with the best possible motive. He felt that so far from an innocent prisoner gaining from it, the effect would be to weaken the sense of responsibility and diminish the vigilance, although it would not impair the equity, of the Court of first instance. For these reasons, and after very careful and prolonged thought, he had come to the conclusion that, so far from this Bill assisting injured innocence, it would tend rather to put difficulties in the way of the administration of justice.
§ *MR. PICKERSGILL (Bethnal Green, S.W.),
as one who had taken a great interest in the question, said he rejoiced that the Government were pressing forward this Bill with a view to passing it into law. Objections had been raised to it on various grounds. There were some who said that the establishment of a Court of Criminal Appeal was neither necessary nor desirable, but that if there was anything wrong the Home Secretary would set it right, and the establishment of a Court of Criminal Appeal would be not only unsatisfactory, but even loss favourable to the prisoner than the present practice. That view seemed to him to confuse two essential functions, namely, the functions of the Court of Appeal and the exercise of the clemency of the Crown. These two functions were united in the one person of the Home Secretary, and the fact that they were so united led to misapprehension and confusion. If the Bill should establish the most complete and comprehensive Court of Criminal Appeal that they could possibly conceive, it would still be necessary to retain the prerogative of mercy which lay in the very nature of law, for law would be absolutely intolerable if the community did not reserve in some person the power, in suitable cases, to remit or mitigate the penalties imposed by law. But the mischief of the present system was that the Home Secretary had to use a kind of machinery which might be appropriate 219 to the prerogative of mercy, while he was really discharging the functions of a Court of Criminal Appeal. In recent years there had been several cases where the unsatisfactory nature of the present system had been brought to the public attention. In the Maybrick case the capital penalty was remitted by the Crown, and the Home Secretary of the day declared that there was the most grave and serious doubt as to whether any act of Mrs. Maybrick had brought about the death of her husband, but that he was convinced that Mrs. Maybrick intended to murder her husband; and so during all those years she had been imprisoned for a crime for which she had never been tried, and a crime of which she could not have been found guilty on the indictment on which she was tried and on an issue which was not strictly raised upon the trial. But the case did not end there. The then Lord Chief Justice, speaking as, the head of the English Judiciary, declared his opinion that Mrs. Maybrick ought to be released. He submitted his reasons to the Home Secretary of the day, who declined to act upon his recommendation, and Mrs. Maybrick remained in prison. In the case of Mr. Beck it was perfectly true that there would not have been a miscarriage of justice if there had been power in the Judge to state a question of law. The whole difficulty was that no such power existed. But the Beck case threw a flood of light upon the methods and spirit of the Home Office. The Report of that case showed that the spirit which dominated the Home Office when a case had to be investigated was one of unreasonable deference to the opinion of the Judge. It might be meritorious in a Minister of the Crown to show that deference. There might be serious inconvenience in a Minister of the Crown being able to do anything which might impair the authority of the Judiciary; but the conclusion which he drew from the spirit which dominated the Home Office in investigating these petitions was that the Minister of the Crown ought not to have to perform the functions of a Court of Criminal Appeal, because it was perfectly evident that if he approached the question of revising a sentence in an unreasonable spirit of deference to the trial Judge, he could not possibly perform those functions properly. Therefore, they ought to be taken away from the Minister and handed to a properly constituted legal tribunal. 220 There were objections of other kinds to-the Bill. It was said that it was far too large a Bill, that it would produce a block of appeals, and that it would be unworkable. In regard to that he did not think that the Bill went further than the Bill introduced in 1883 by a Liberal Government. It was introduced by the then Attorney-General, now Lord James of Hereford, supported by Lord Herschell and Sir William Harcourt. That Bill not only passed the Second Reading but it was very carefully considered by Grand Committee upstairs and passed through that Committee unscathed. With regard to the present Bill being too large he wanted to ask hon. Gentlemen who took up that position what they proposed as an alternative. The only suggestion which he had heard was that they should give to the Home Secretary power in the exercise of his own discretion to refuse a petition, or, if he thought there was any doubt as to the conviction, to refer the case to a Court. He thought that there were very-grave objections to limiting the Bill in that way. It seemed to him that such a state of the law would be a direct encouragement — in fact, it would be putting a premium on the re-trial of sensational cases in the public Press. It would operate in this way. In popular and picturesque cases an agitation would be got up, and the Home Secretary, not unnaturally desiring to have a quiet life, would no doubt refer such cases to the Court of Appeal. So far as the ordinary run of cases were concerned there was no question of popularity or of sensationalism, and he did not see that they would be in any degree better than they were at the present time. No feasible alternative to the Bill had been suggested. There were difficulties which he frankly admitted, in the way of the position taken up by the Attorney-General the other day, namely, that the public sentiment demanded that they should give to the convicted person a substantial appellate right similar to that which was already given to a civil litigant, or, as the Attorney-General said, they should place liberty at all events on the same level as property. An hon. Member had told them that afternoon that that analogy was false, and that civil actions differed from criminal trials. Of course they differed, but he submitted that no advocate on the other side had shown that civil 221 and criminal trials differed in those respects which would make it right to refuse in one case the appeal which was given in the other. They had heard a good deal that afternoon about the sanctity of the verdict of the jury—the verdict in criminal cases and not in civil actions. His hon. and learned friend who preceded him had mentioned the name of a lawyer, which was received with great respect—the name of Sir James Fitzjames Stephen—and he had quoted him as an authority against the establishment of a Court of Criminal Appeal. Might he point out that in 1878 Sir James Stephen was one of a committee of four who reported in favour of a Court of Criminal Appeal, and the other three members of the Commission were Lord Blackburn, Mr. Justice Lush and Mr. Justice Barry? Those who desired to insist upon the sanctity of the verdict of the jury in criminal cases based their objection to the present proposal on the constitutional ground that a man was entitled to be tried by his peers. But the Bill did not really challenge that proposition at all, because the convicted person had already been tried by his peers. It was said that it would impair the responsibility of the jury. At the present time the tendency of juries was certainly in favour of acquittal. Lord Bram well once went so far as to say that the great source of injustice in this country was the fact that juries would acquit when they ought to convict. If that were so, he could not think that this ingrained habit of the British jury would be altered by the fact that they knew that it was just possible that their verdict might be upset. He did not think that very much weight was to be given to that argument. They might perhaps be reassured when they remembered that similar prophecies had often been made but had rarely been realised. With regard to the power to revise sentences, he noticed with regret, if he might say so, that in another place the Lord Chief Justice expressed strong disapproval of this proposal. His Lordship admitted that some years ago the Judges joined in a recommendation that this power should be given, but he explained that recommendation by the fact that the Home Secretary had been considerably troubled with regard to severe sentences which had been passed by a particular person at that time, and he 222 added that the Judges never erred on the side of severity now. The answer in the first place was that the sentences complained of were mainly sentences passed by quarter sessions, and, secondly, the contingency to which the Lord Chief Justice referred was likely to occur at any moment. For those reasons it seemed to him desirable that this power of appeal should be given. The sentences of Judges varied in severity in cases that were practically identical. One Judge was particularly severe in commercial crimes, another in sexual cases, and so on, so that it seemed desirable that there should be greater uniformity. He was very glad to find that it was proposed to give power to increase a sentence on appeal as well as to reduce it. The advantage of that would be greater uniformity of sentences, and the restoration to some extent, he hoped, of the public confidence, which had been disturbed by the very unequal sentences which had been given in apparently similar cases. Ho desired to say one word with regard to the argument that the Bill would be unworkable and that there would be a block of appeals. The Bill certainly discouraged the resort to technicalities. It expressly provided that on appeal, although on a particular issue raised the Court might be of opinion that there was some irregularity, the conviction could not be quashed if the Court were of opinion that no substantial miscarriage of justice had occurred. Probably at the first there might be a rush of appeals, and it would be, of course, for the Committee to consider very carefully how that probable rush could be regulated; but he felt convinced that when the system had settled down there would not be any very large number of cases, at any rate not such a number as could not be reasonably dealt with. Leave to appeal was to be obtained, and the hon. Gentleman opposite seemed to think that the time occupied in obtaining leave to appeal would be as long as the hearing of the appeal itself. He thought that was an extravagant and unreasonable supposition. It seemed to him that for the most part these applications for leave to appeal could be kept, ordinarily, within a very short compass. He had come to the conclusion that the Bill if it became an Act would have indirectly a very beneficial effect. It would, so to speak, tighten 223 up and so improve the administration of| justice, and magistrates and even Judges would be more careful when they knew that all their proceedings were subject to review; and the ultimate effect of the Bill might be to remove the anomaly under which at the present time laymen might preside over Courts with such large jurisdiction and extensive powers as Quarter Sessions possessed. He trusted that the Bill would become law, and that if it did become law it would set the public conscience at rest. Ho would like to conclude with the words of a very great man, who said | that, in the administration of the criminal law, next to doing right the great object was to give public satisfaction.
§ MR. LYTTELTON (St. George's, Hanover Square)
said there had been a good deal of agreement on both sides of the House on the subject of this Bill. There had also boon in the course of the debate very little, hardly anything, he thought, said against the general verdicts of juries in criminal cases. He thought it had been admitted, as it was by the Home Secretary in 1898, that the cases of improper convictions without redress were almost infinitesimal. As regarded the form of criminal procedure in England he might read the description given by a French commissioner, who was sent over to this country by the French Government very many years ago, to investigate the subject of our judicial procedure. The description he gave was as true now as it was at the time he wrote it. He said—English Judges are the defenders of the culprit. This remark, however forcible in itself, is far from conveying the full idea of the protection which the Judge affords to the prisoner. He treats him throughout the trial as an unfortunate being, and he is admirably seconded in that benevolence by the whole auditory—people, counsel, and jury.That sounded strong, but he could say himself, having attended a great number of criminal trials long before ho was called to the bar, that in England the attitude of the Judge, the jury, and the prosecuting counsel towards the prisoner, presented a spectacle than which, he said it with emphasis, none could be finer, and there was no better aspect in which the Government of a country could exhibit itself than the attitude of dignified and humane tenderness to misery, even if it were the misery of crime. If there was striking evidence of the leniency of our 224 Criminal Courts on the one hand, on, the other nobody could deny that those Courts were efficient. The last time he looked at the figures he found that something like 85 per cent. of those who were indicted were convicted. If the House compared the light in which criminal justice was regarded in this country and in foreign countries, especially in America, he thought that there would be agreement in saving that any move taken in the direction of reform should be undertaken with the greatest possible caution. All agreed that a Court of Appeal should be constituted, that questions of law should be submitted to it, and questions affecting the revision of sentences should be brought before it. These matters had been decided by a single individual, and it was necessary from time to time to correct the decisions of eccentrics in order to secure a better uniformity. It was not easy, however, to say how far it was desirable to give an unqualified appeal on questions, of fact. The House must look at the conditions that would prevail if this right were granted. In the first place, there was a large number of eases at present tried summarily at Petty Sessions with the consent of the prisoner, and to the great relief of the Assize Courts. Every prisoner in future who wished to be tried and to have his case disposed of at once would have to be warned that, if ho elected to be tried in this way his case would not be made a subject of appeal. His right hon. friend the late Home Secretary had shown that in 1,500 cases out of 10,000 there were appeals to the Home Secretary from conviction or sentence by prisoners. The House must expect, therefore, to have at least as many cases in the future, and the prisoner would have to be told about his right of appeal and the expenses for counsel and solicitor. It was only necessary to think of the immense congestion of business and the long delays that must arise when cases like the recent case of the West Ham guardians, which occupied the Attorney-General fifteen days, came up for appeal. Those wore the very cases in which there would be an appeal, and the expense of the appeal would be immense. There were only some 200 days in the whole year available for this enormous business. These difficulties were not conclusive; but it was right to consider gravely whether it was necessary to incur them when there was another way out without causing what 225 he believed would be immense difficulties, scandals, and delays. He was astounded to hear the Home Secretary suggest that the Court of Appeal would be an expeditious tribunal, obviating the long delays of the Home Office procedure. The delay would be immense, and the scandal of it would be of such a kind that, as President Roosevelt had pointed out, it would discredit justice in general and fail to maintain equality between the rich and poor. Obviously, if they had people with very long purses reviewing these cases at great length blocks would occur for weeks and weeks whilst they were being reheard. The Home Secretary had dwelt at great length and with obvious feeling on the comments in the Press to which one in his office was exposed. He would be the last person to say that a Bill of this magnitude should be passed in order to save any Home Secretary from the buffets of the Daily Mail. That was one of the things which might be expected, and surely might be tolerated with equanimity. In any case this Bill would not save the Home Secretary from any serious onslaught. That Minister was only assailed in respect of difficult oases that attracted attention. Those were the cases that would go to the Court of Appeal, and the Judges of the Court of Appeal would often differ on them, the differences being rendered obvious in the course of a public trial. Would a single Press comment be abated in such circumstances? Criticism would fall on the Judges in the first place, but, if the Home Secretary refused to interfere, he would have to put up with all the comments that were likely to be made. The true moral of the right hon. Gentleman's references to the Press was not that the Court of Appeal should be set up to protect him, but that he should glean from the Press any new facts which it might be able to bring to his notice, and disregard its comments on his decisions. There was a residuum of cases in which, through no man's fault, there might be both in the mind of the Home Secretary and in that of the public a grave doubt as to the propriety of conviction. The suggestion which in the time of Lord Chief Justice Coleridge had the support of the full bench of Judges and of the Commission of Judges of which Sir James Stephen was a member was to give the Home Secretary power to refer cases of difficulty to the Judges, the Court having power to deal with all the circum- 226 stances on the same principles as those on which the Home Secretary was now supposed to act. That would provide a means of satisfying the doubts of the Home Secretary and of enabling him, where it seemed desirable, to assuage the public mind, while it would get rid of the delays of a Court of Appeal and of the grave constitutional difficulty presented by the practice of Judges overriding the verdict of juries, because, under the scheme he referred to, the Judges could order a new trial. No doubt some distinguished lawyers had changed their minds on this question. The Attorney-General had done so, mainly because of the increase of newspaper agitation. But he wished to insist on the fact that the setting up of this Court of Appeal would not get rid of the opportunity for newspaper agitation. The newspapers were, after all, exercising a right, though they might sometimes exercise it in a regrettable manner, and as Sir James Stephen had said, these manifestations were a grotesque but powerful security against injustice and oppression. Was it to be imagined that those who expressed themselves in this way in regard to the tribunals of the country and to the Home Secretary would desist from doing so because a Court of Criminal Appeal consisting of Judges was set up? Not at all. On the contrary, he believed that the same liberty of criticism would continue to prevail, and that in cases which were close to the line, and about which it was evident there was some judicial doubt, the newspaper agitation would be conducted with even greater vehemence than it was at present. He should not Note against the Second Heading of the Bill, because he heartily acclaimed many of its provisions, but unless in Committee some modifications of the Bill on questions of fact in the direction he had indicated were made, he should certainly reserve his right to vote against it on Third Reading.
§ *THE ATTORNEY-GENERAL (Sir JOHN WALTON,) Leeds S.
said there could be little doubt that in recent years there had been a considerable development of opinion in regard to this question. The right hon. Gentleman who had just sat down had indicated the view which he had expressed in the House some years ago, and he confessed that later events had very much modified that 227 opinion. The right hon. Gentleman had rightly stated that he then thought that the tribunal of the Home Office was an adequate Court of Appeal for the review of verdicts and sentences in criminal cases. But the right hon. Gentleman would agree with him that, since then, there had been two circumstances of considerable moment in the history of this question and of the criminal law. In the first place, prisoners had been allowed to give evidence in their own defence. The cross-examination of these prisoners had rendered enormously more difficult the conduct of criminal trials, and had, therefore, made it more important that there should be some tribunal to review the effect of the evidence, very largely modified by the statements of a highly-interested person. The second consideration was this. The Home Office had been the subject of investigation by a Royal Commission, and he thought it had been clear that, admirable as the machinery was for many of its purposes, it could not be held by any jurist to correspond in any satisfactory degree to a tribunal of criminal appeal, they had, therefore, arrived at this position. All of them were agreed that there should be some provision for the review of evidence upon which convictions in criminal cases rested, and the Home Office was, at present, the only provision which the law had made for a revision of that kind. He did not want to follow the Home Secretary and others who had indicated the many objections which could be raised to that investigation by a State Department, but he thought the House would agree that that investigation, and the results, did not inspire public confidence. It was not conducted by judicial minds. There was no representation of the accused, there was no argument, and the reasons upon which the judgment rested were not disclosed and were unknown to the public. The result, therefore, was that the Home Secretary could not satisfy public criticism by showing the grounds which had actuated him in the conclusion at which he had arrived. The right hon. Gentleman opposite a little underrated the harassing and distressing character of the Parliamentary pressure which might be brought to bear in regard to matters which were judicial in their nature where the investigation was conducted by the Home Office. There undoubtedly had 228 been, of late, a tendency to criticise the proceedings of the Home Secretary in a tone which would not be tolerated by any judicial tribunal in the country. The right hon. Gentleman said they ought to brace themselves to meet attacks of that nature. He quite accepted that counsel. He did not for a moment say that they ought not to brace themselves to meet such attacks. At all events, the Home Secretary was under an obligation of that sort; but no one would say that it did not very considerably embarrass the discharge of functions which were judicial in their character and which were often exceedingly difficult and delicate. They would, therefore, have made a great advance in their legal system if they cast the burden of an investigation which was essentially judicial in its character upon a judicial tribunal and left the Home Secretary to fulfil that function which naturally belonged to his office—the advising of the Crown with regard to the exercise of the prerogative of clemency. He thought there was no little encouragement to be drawn from this debate in the fact that so few lawyers were against the principle of the Bill. When lawyers abandoned the guns he thought the position might be said to be indefensible. Last year a worse Bill than this had passed the House of Lords, and if that home of legal conservatism saw no great mischief in the proposal, he thought they might pass it as a perfectly safe measure. The movement in favour of a Bill of this kind had fluctuated from time to time, but the tide had been rising, and he thought they might now say that it was high water. He would leave the hon. and learned Member for Cambridge University and the hon. and learned Member for one of the divisions of Hampshire to share between them the credit of representing Mrs. Partington in their effort to keep back the waves.
There wore one or two topics of cardinal criticism to which he thought he ought to devote some little attention. It had been proposed that the Bill should suffer a process of bisection, that they should, if possible, cut it into two and pass so much of it as allowed an appeal on questions of law and reject so much as allowed an appeal on fact. That seemed to him to be, if a possible, at all events a highly unsatisfactory 229 suggestion. They had now an appeal on questions of law, subject to the leave of the Judge who presided at the trial, and if all they were to do was to abolish the necessity of leave being given, it seemed an advance in the law scarcely worth the trouble of making. But his objection was more serious. He doubted whether it was possible to dissever, he thought it was not useful to attempt to dissever, questions of law from questions of fact where they were creating a tribunal of review, and where they intended that the scope of that review should be thorough and satisfactory. Every lawyer knew that the region of legal fact and the region of law sometimes became so much involved that it was hard to discriminate. What they wanted was that the whole of the elements that tended to lead to a miscarriage of justice should be subject to the re-examination of another tribunal. If there was a summing up which was legally correct but inadequate, if certain points were concealed if they word calculated to mislead the jury, these were certainly not matters to be left out of consideration by an Appeal Court because they did not fall within the domain of law. Supposing they had a case which was ill-conducted by the counsel for the prisoner, supposing he neglected to put questions which he ought to have put, supposing there was evidence which he might have called but had not called— all these were matters essential to enable a Court of review to deal with the case satisfactorily and to form a judgment as to whether a conviction ought or ought not to stand. Yet he thought he was right in saying that these considerations belonged rather to the domain of fact than the domain of law.
There was another argument which had been used in the course of the debate, namely, that if they allowed an appeal from the verdict of a jury, they impaired the sense of responsibility under which juries acted. He had heard that 230 argument in high judicial quarters, arid he had heard it with great surprise, because they had, in this matter, their experience in civil Courts to guide them as to the attitude that juries assumed towards all cases which involved reflections upon reputation or upon character, and to those cases which imputed misconduct or fraud. They all knew that there was nothing more difficult than to get a verdict in such a case. They all knew that where a charge carried with it the penalty of social ostracism, or where it involved penal results, the attitude of the jury was always strongly against the plaintiff's case, and they insisted on a high standard of proof before they would incriminate the defendant by their verdict. And yet in all those cases there was an appeal, and the fact that there was an appeal did not impair the feeling of the jury that the question of fact was for them, and that, if the penalties were to follow, they would follow upon their finding, dealing with issues that were within their province. The mere consideration that the finding 'was subject to the review of a Court of Appeal, he was satisfied, would have little or no influence on their mind. In a civil case a jury were sometimes overborne by their sympathy with the plaintiff. In a criminal case the Crown was prosecutor, and there was no claim for compensation; there was no redress asked for by a plaintiff, and therefore the jury had solely to regard the issue as one involving the penalties which attended their verdict against the accused person, and they would know that in all ordinary cases that verdict was final. The submission of the whole trial, fact and law, to a tribunal of review would be attended by this great incidental advantage. Every chairman of quarter sessions who tried a criminal would know that the proceedings of his Court might be reviewed by a Court of Appeal, and he thought the fact that justice in every quarter of the country would be discharged subject to that feeling and subject to the sense of 231 responsibility which that feeling would create was an immense advantage in the administration of the law.
In reference to a new trial, the hon. and learned Member for the Walton Division had not made up his mind As the Bill was originally drawn the appeal was to be finally disposed of, and there was to be no new trial. Under pressure in the House of Lords, the Lord Chancellor last year gave way, and made provision for a new trial to be ordered at the discretion of the Court of Criminal Appeal. All he could say was that, after giving the matter most careful consideration—because it was a matter in regard to which different minds might take different views—he had come very strongly to the conclusion that it was absolutely essential that the Court of Criminal Appeal should finally determine the matter. To his mind, it was almost unthinkable that they should put a prisoner on a second trial for a miscarriage of the first trial for which he was in no way responsible. To subject him to that ordeal, consistently with giving him the benefit of the doubt, after they had created the doubt by the order of the Court of Appeal directing the now trial, was to subject him to a second trial with almost perfect certainty that he would be acquitted. The mere fact that a second trial had been ordered would lead the jury to the conclusion that there was some doubt and difficulty in the case, and there would be a very strong tendency to give the defendant, after undergoing two trials, the benefit of a verdict which it would be argued he ought to have had on the first occasion. Then the practical difficulties of a new trial were almost overwhelming. Witnesses had to be detained, for many of them might be sailors who wished to go abroad, and their expenses would have to be provided for; and they would have to have all the material ready for reproduction. Those were all very serious disadvantages; and then there was the difficulty of a second trial of some case which had excited 232 great public attention and stirred deep public sympathy. Imagine a second trial in such a case as that of Mrs. Maybrick. They had a fresh jury brought, witnesses all called again, a new Judge, and a new proceeding. His right hon. friend the Member for St. George's, Hanover Square, said that the same thing would be done in the Court of Criminal Appeal. He confessed he did not agree. It was only proposed here to give to the Court of Appeal a similar power of review to that given to the Court of Appeal in civil cases. The appeal in a civil case was a re-hearing, and he had himself examined and cross-examined before a Court of Appeal witnesses whom that Court had summoned for the purpose of elucidating some obscurity in the case under investigation, and all that was intended here was that the same functions should be discharged by the Court of Criminal Appeal in the same method and with almost identical powers.
§ MR. LYTTELTON
Is it really proposed by the Bill to try a capital case by affidavit or on Judge's notes?
§ *SIR JOHN WALTON
said he was glad the right hon. and learned Gentleman had asked that question. The right hon. and learned Gentleman was perfectly familiar with the process of appeal in a civil Court. In the Court of Criminal Appeal the representative of the prisoner would be called upon to indicate what his case was. Counsel would be heard, and he would point out what were the grounds on which he sought to sustain his contention. The Court of Appeal would have before them the evidence on the Judge's notes, and the usual materials, supplemented here and there, it might be, by extracts from shorthand notes, and the Court might then say that they thought there was no ground whatever for disturbing the conviction and dismiss the appeal; or they might say, "We should like to hear one of the witnesses called before us," or, it might be, more than one, so that questions might be put 233 on a definite point which was entirely overlooked at the trial. That was a power which the Court of Appeal in civil cases possessed, although it might be that it was infrequently exercised. It was all-important that that power should be possessed if their Court of Appeal was to be a Court of effective review. But there was no notion of going through the form of hearing all over again the evidence which had been given below. Then there was the argument, used in another place, that, if they allowed a Court of Criminal Appeal to enter a verdict of acquittal after a jury had convicted, they would be interfering with trial by jury. The answer to that contention was that the right of trial by jury had already been enjoyed, and what they gave to the accused under the Bill was something above and beyond what he got by trial by jury. They had heard various speeches which alleged that the scheme was unworkable; but, if that criticism was used in the sense that the machinery was ineffective for the purpose of enabling the accused person to bring his appeal under the arbitrament of the Court, he entirely challenged its justice. He had taken the utmost pains to ensure that, so far as machinery went, the Bill should be a workable Bill. It might be costly, but it would certainly ensure that every man would be able to exercise the right given him of appealing. But, it was said, the expense would be overwhelming. If it were true that the maintenance of public confidence in the administration of criminal law demanded the creation of such a tribunal, then no argument of expense could outweigh the arguments of public interest. But he was by no means of opinion that the expense would be very great. There would, of course, be the expense of the permanent staff. The further cost depended upon their estimate of the number of appeals that would probably result from this legislation. Some hon. Members had thought that the Bill would call into existence a whole army of litigious convicts, and that 234 there would be hundreds and thousands of them wanting to come before the Court. He did not in any way share such a highly imaginary view. Let them take the ordinary case of a prisoner who had been convicted. Probably in ninety-nine out of a 100 cases he was guilty and knew he was guilty. He knew that ho had had a fair trial. Was it at all probable that such a man would avail himself of this machinery and bring an appeal under the consideration of the Court? The whole foundation for that inference, which was drawn from the number of petitions to the Home Office, was wholly misleading. The Home Secretary assured him that not half of these petitions could properly be made the subject of appeals to a Criminal Appeal Court. Most of them drew attention to family relations and other matters which might work upon the humane feelings of the Home Secretary, and grounds which could not be rationally stated for the consideration of a Court of Criminal Appeal. His hon. friend said that the number of appeals would be much greater than the number of petitions now addressed to the Home Office; but, as he had said, most of those appeals to the Home Office rested on grounds which could not be taken to a Court of Appeal. Of course, in the case of a man labouring under the sense of intolerable injustice of suffering for a crime of which he was innocent, nothing would stop him from appealing. But in the case of an old criminal there were various checks which would prevent him from wasting the time of the Court. The time spent over the appeal would not count as part of the sentence; and that would be a salutary check in the case of a guilty man who thought of appealing on the off-chance of escaping punishment. Moreover, the leave of the Court of Appeal would have to be obtained. It was not intended that that should be a mere perfunctory function; in other words, that the Court should grant as of course leave to appeal. When all the materials 235 were collected, as they would be by the proper officer of the Court, when the grounds upon which the application rested wore stated, the Court would take thorn into consideration, and the appeal would he allowed only when they were satisfied that there was a difficulty in regard to the conviction about which it was necessary to hear the prosecution. In the great majority of cases the Court would come to the conclusion at once that there was no foundation for an appeal, because undoubtedly convictions as a rule were just and were obtained after a patient hearing of the defence. Nor did he think there would be a great readiness to appeal in regard to sentences. If a convicted person challenged the justice of his sentence he must submit to have that sentence measured by principles of general application. The Court in such a case would ask themselves whether penal servitude or imprisonment was the proper penalty for the offence; and as the result might be that the prisoner would get a less desirable sentence he would probably come to the conclusion that the ills he had were more endurable than those which might flow from the exercise of his right to appeal. One good result that would follow from the hearing of such appeals was that the Court would set the standard of the sentences that should be inflicted in various cases, as to which at present there prevailed the greatest disparity. In the course of the debate the most contradictory views had been expressed with regard to the functions of the Court of Criminal Appeal. How the experiment would work would largely depend upon the views of the Court itself. But the notion of those who framed it was that the Bill should give to a Court of Criminal Appeal corresponding powers to those which were possessed by the Court of Appeal in civil cases. In one clause they indicated the rule that should guide the Court in setting aside the verdict of the jury. The verdict of the jury in a criminal case, as in a civil case, must in the great majority of instances be conclusive. If 236 the jury were not misled, if they apprehended the point, if the case had been fairly put before them, their conclusion ought to be unassailable by any Court of Appeal. It was where there was some element of doubt, where there was a disturbing factor, where some point had been misunderstood, where there had been some mistake, where the summing up by the learned chairman of quarter sessions or the Judge had not presented to the jury the real considerations which ought to have influenced them in coming to their verdict, it was in these cases that the Court of Criminal Appeal would operate. It was also said that the relief to be given was so trifling that the Bill was not worth having. It was said that the Court would never disturb the sentences of juries, and that a costly machinery was being set up simply to prove the impeccability of the judicial officials of the Crown and the impregnability of the jury system. That the relief would not be great in volume or in the number of cases affected was true, but if by this measure relief was carried to a few persons suffering the intolerable torture of an unjust condemnation, there would be sufficient justification for the House to give it a Second Beading. There had been some sneers directed against the Bill. It was said the Bill was founded on sentimental ideas, hon. Gentlemen must remember that nearly all the reforms on the barbarous system of our criminal law had been defended on grounds of humanity. But in 1832 Lord Eldon in the House of Lords resisted—on the ground that it was based on sentimental ideas —a Bill for abolishing capital punishment for the theft of a horse or of £5 in a dwelling-house. For his part he preferred the sentiment that animated the supporters of the Bill to the sentiment which animated its opponents. There was no doubt that deep in the consciences of many, if not of most men, there was a feeling that misfortune might some day or other involve them in an unjust imputation of crime. It was not 237 an unworthy object for the House to carry to such men the assurance that no conviction which might be obtained against them could stand until the grounds upon which it rested had been investigated by the trained judicial minds of three members of the English Bench. His view was that the Bill marked a better and more satisfactory era in the history of English law. If the House passed the Bill, as he hoped they would, it would be with the consciousness of knowing that a blemish was removed from our jurisprudence, that a new safeguard had been added to innocence, and that liberty and property would be placed on an equal footing.
§ Question, "That the word 'now' stand part of the Question," put, and agreed to.
§ Main Question put, and agreed to.
§ Bill read a second time.
|Acland-Hood. RtHn.SirAlex F||Craig, Captain James( Down,E.)||Ridsdale, E. A.|
|Anstruther-Gray, Major||Craik, Sir Henry||Roberts,S. (Sheffield, Ecclesall)|
|Aubrey-Fletcher,Rt.Hn.SirH.||Dalrymple, Viscount||Sheffield, Sir Berkeley GeorgeD.|
|Balcarres, Lord||Dixon-Hartland,Sir Fred Dixon||Talbot, Lord E. (Chichester)|
|Banbury, Sir Frederick George||Douglas, Rt. Hon. A. Akers||Talbot.Rt. Hn. J.G(Oxf'd Univ.|
|Bignold, Sir Arthur||Duncan, Robert(Lanark,Govan||Thomson, W. Mitchell-(Lanark|
|Bottomley, Horatio||Faber, George Denison (York)||Thornton, Percy M.|
|Bowles, G. Stewart||Fell, Arthur||Tuke, Sir John Batty|
|Boyle, Sir Edward||Fletcher, J. S.||Vincent, Col. Sir C. E. Howard|
|Buckmaster, Stanley O.||Hervey,F.W.F.(BurySEdm'ds||Wortley, Rt. Hn. C. B. Stuart-|
|Cave, George||Hills, J. W.||Younger, George|
|Cavendish, Rt. Hn. VictorC. W.||Hunt, Rowland|
|Cecil, Evelyn (Aston Manor)||Lyttelton, Rt. Hon. Alfred||TELLERS FOR THE AYES.—Mr.|
|Chaplin, Rt. Hn. Henry||Moore, William||Rawlinson and Mr. F. E.|
|Cochrane, Hn. Thos. H. A. E.||Morpeth, Viscount||Smith.|
|Corbett, A. Cameron (Glasgow)||Powell, Sir Francis Sharp|
|Abraham, William(Cork,N. E.)||Burns, Rt. Hon. John||Dewar, Arthur (Edinburgh, S.)|
|Acland, Francis Dyke||Hurt, Rt. Hon. Thomas||Dickinson,WH(St. Pancras,N.|
|Agnew, George William||Byles, William Pollard||Duncan,C. (Barrow-in-Furness|
|Astbury, John Meir||Cairns, Thomas||Dunne Major EMartin (Walsall|
|Atherley-Jones, L.||Carr-Gomm, H. W.||Edwards, Frank (Radnor)|
|Baker, Joseph,A. (Finabury,E.)||Cherry, Rt. Hon. R. R.||Elibank, Master of|
|Baring, Godfrey( Isle of Wight)||Clarke, C. Goddard (Peckham)||Erskine, David C.|
|Barker, John||Cleland, J. W.||Essex, R. W.|
|Barlow, Percy (Bedford)||Collins, Stephen (Lambeth)||Esslemont, George Birnie|
|Beauchamp, E.||Cooper, G. J.||Evans, Samuel, T.|
|Billson, Alfred||Corbett, CH(Sussex, E. Grinst'd||Everett, R. Lacey|
|Birrell, Rt. Hon. Augustine||Cotton, Sir H. J. S.||Faber, G. H. (Boston)|
|Boland, John||Cox, Harold||Fen wick, Charles|
|Bowerman, C. W.||Craig, Herbert J. (Tynemouth)||Kerens, T. R.|
|Branch, James||Crean, Eugene||Flynn, James Christopher|
|Bright, J. A.||Crombie, John William||Fowler, Rt. Hon. Sir Henry|
|Brunner, J.F.L. (Lanes., Leigh)||Crooks, William||Fuller, John Michael F.|
|Bryce, J. Annan||Davies, Timothy (Fulbam)||Gilhooly, James|
§ *MR. SPEAKER
said that the hon. and learned Member for Cambridge University had an instruction on the Paper to the Committee that they should have power to divide the Bill into two parts, the one dealing with appeals upon questions of fact, the other with appeals upon questions of law. The Bill did not so naturally divide itself, and the division would involve the re-drafting of the whole Bill. The instruction was therefore out of order.
§ Motion made, and Question put, "That the Bill be committed to a Committee of the Whole House."—(Mr. F. E. Smith.)239
|Gill, A. H.||MacDonald, J. R. (Leicester),||Russell, T. W.|
|Gladstone, Rt. Hn Herbert John||Mackarness, Frederic C.||Rutherford. V. H. (Brentford)|
|Goddard, Daniel Font||Macnamara, Dr. Thomas J.||Schwann, C. Duncan (Hyde)|
|Gooch, George Peabody||Mac Veigh,Charles(Donegal,E.||Seaverns, J. H.|
|Greenwood, G. (Peterborough)||McCallum, John M.||Seely, Major J. B.|
|Guest, Hon. Iver Churchill||McCrae, George||Shackleton, David James|
|Gulland, John W.||McLaren, Sir C. B. (Leicester)||Sherwell, Arther James|
|Gurdon, Sir W. Brampton||McLaren, H. D. (Stafford, W.)||Shipman, Dr. John G.|
|Gwynn, Stephen Lucius||Maddison, Frederick||Silcock, Thomas Ball|
|Hardy, George A. (Suffolk)||Manfield, Harry (Northants)||Smeaton, Donald Mackenzie|
|Harmsworth, Cecil B. (Worc'r)||Marks,G.Croydon(Launceston||Smyth, Thomas F.(Leitrim,S.)|
|Hart-Davies, T.||Marnham, F. J.||Spicer, Sir Albert|
|Harwood, George||Massie, J,||Stanger, H. Y.|
|Haslam, Lewis (Monmouth)||Meagher, Michael||Stanley, Hn A.Lyulph(Chesh.)|
|Haworth, Arthur A.||Micklem, Nathaniel||Steadman, W. C.|
|Hazleton, Richard||Molteno, Percy Alport||Strachey, Sir Edward W.|
|Hemmerde, Edward George||Morgan, G. Hay (Cornwall)||Straus, B. S. (Mile End)|
|Henderson, Arthur (Durham)||Morrell, Philip||Strauss, E. A. (Abingdon)|
|Higham, John Sharp||Morse, L. L.||Taylor, Theodore C. (Radcliffe)|
|Hobart, Sir Robert||Morton, Alpheus Cleophas||Tennant, H. J. (Berwickshire)|
|Hodge, John||Murray, James||Thomas, Abel. (Carmartben,E.)|
|Hogan, Michael||Nicholls, George||Torrance, Sir A. M.|
|Holland, Sir William Henry||Nicholson, CharlesN(D'ncast'r||Verney, F. W.|
|Horniman, Emslie John||Nolan, Joseph||Walker, H. De R. (Leicester)|
|Horridge, Thomas Gardner||Norton, Capt. Cecil William||Walters, John Tudor|
|Hudson, Walter||Nussey, Thomas Willans||Walton, Sir John L. (Leeds,S.)|
|Hyde, Clarendon||Nuttall, Harry||Walton, Joseph (Barnsley)|
|Idris, T. H. W.||O'Connor,James(Wicklow, W.)||WardJohn (Stoke-upon-Trent)|
|Illingworth, Percy H.||O'Connor, John (Kildare, N.)||Ward, W'Dudley (Southampton|
|Isaacs, Rufus Daniel||O'Doherty, Philip||Wardle, George J.|
|Jacoby, Sir James Alfred||O'Donnell, C. J. (Walworth)||Waring, Walter|
|Jardine, Sir J.||O'Shaughnessy, P. J.||Wason,Eugene(Clackmannan)|
|Jones, Sir D.Brynmor (Swansea||Parker, James (Halifax)||Wason JohnCathcart(Orkney)|
|Jones, Leif (Appleby)||Paul, Herbert||Whitbread, Howard|
|Jowett. F. W.||Philipps, Owen C. (Pembroke)||White, J.D.(Dumbartonshire)|
|Joyce, Michael||Pickersgill, Edward Hare||White, Luke (York, E.R.)|
|Kearley, Hudson E.||Pollard, Dr.||White, Patrick (Meath,North)|
|Kekewich, Sir George||Price, RobertJohn (Norfolk,E.)||Whitehead, Rowland|
|Kincaid-Smith, Captain||Priestley, W.E.B. (Bradford E.)||Whitley,JohnHenry (Halifax)|
|Kitson, Rt. Hon. Sir James||Radford, G. H.||Whittaker,Sir Thomas Palmer|
|Lamont, Norman||Rea, Walter Russell (Scarboro'||Wiles, Thomas|
|Lever,A.Levy (Essex,Harwich||Redmond, William (Clare)||Wills, Arthur Walters|
|Lewis, John Herbert||Rees, J.D.||Wilson,Hon.C.H.W (Hull.W.)|
|Lloyd-George, Rt. Hon. David||Richards, T.F. Wolverh'mpt'n||Wilson, P.W. (St. Pancras.S.)|
|Lough, Thomas||Roberts, Charles H. (Lincoln)||Wilson, W.T. (Westhoughton).|
|Lundon, W.||Robertson, J. M. (Tyneside)|
|Luttrell, Hugh Fownes||Robson, Sir William Snowdon||TELLERS FOR THE NOES.—|
|Lyell, Charles Henry||Rogers, F. E. Newman||Mr. Whiteley and Mr.|
|Lynch, H. B.||Rowlands, J.||J. A. Pease.|