§ (1) During the continuance of the present War and until the twenty-eighth day of December next after the determination thereof, no precept for the summoning of a grand jury or grand jurors shall be issued nor shall any grand jury be summoned, and any such precept or summons in existence at the date of the passing of this Act shall be void and of no effect.
§ (2) Any bill of indictment which but for this Act would have been preferred before a grand jury shall be preferred before the Court before which the indictment if to be prosecuted, and the judge of that Court, or an officer of that Court duly authorised in writing by the Court for the purpose, shall append his signature to the bill, and thereupon the bill shall be proceeded with in like manner in all respects as if it had been found a true bill and so presented to the Court by a grand jury, and the Statute and common law relating to such proceedings shall apply accordingly:
§ Provided that in any case where the judge whose duty it would have been but for this Act to charge a grand jury would have advised such grand jury not to find a bill of indictment a true bill, either as to the whole thereof or as to any count therein, the judge shall make an endorsement upon such bill of indictment to the same effect, and thereupon such bill of indictment or count therein shall be dealt with in all respects as if a grand jury had found no bill in respect thereof.
§ (3) The First Schedule to the Indictments Act, 1915, shall apply to all bills of indictment preferred before a Court in pursuance of this Act, except that the words "presentment of the grand jury" required by Rule 2 in the said Schedule shall be omitted.
§ (4) Where the form of any recognizance or other instrument (statutory or other wise) relating to procedure as to indictable offences contains a reference to a grand jury, such reference shall be omitted, and the rule committee established by the Indictments Act, 1915, shall make rules for making such variations in such forms and instruments, and for making such adaptations in the procedure for the trial of indictable offences as may be necessary to give effect to this Section.
754§ (5) No bill of indictment for any offence, whether or not an offence to which the Vexatious Indictments Act, 1859, applies, shall be preferred before a Court under this Act, except in the circumstances in which a bill for an indictment for an offence to which that Act applies may under that Act be presented to a grand jury.
§ (6) For the purposes of this Section, judge of a Court shall, in the case of a court of Quarter Sessions, mean the chairman.
§ Sir F. SMITHI beg to move, in Subsection (1), to leave out the words "until the 28th day of December next," and to insert instead thereof the words "for the period of six months." The object of this Amendment is to meet the objection raised by the hon. Baronet (Sir C. Henry). I do not think it right to accept the exact words suggested by the hon. Member, and I hope he will agree to those I am now proposing.
§ Mr. KINGI would like to ask the Attorney-General how he defines "the end of the War." When will the end of the War be? Will it be the first day of any armistice, or when will it be? Already once or twice the right hon. and learned Gentleman has indicated that the expression "termination of the War" will need legal definition, and I venture to ask him now whether he will consider the desirability of defining it in some way at an early date.
§ Sir F. SMITHI will consider that point.
§ Amendment agreed to.
§ Mr. S. MacNEILLBefore we take the next Amendment, should there not be some reference to indictments coming before a grand jury which will not be tried at the particular Sessions or Assize, say, an indictment against a Peer of the Realm, who is entitled to claim to be tried by the House of Lords? Will the right hon. Gentleman agree to consider that point before the Report stage?
§ Sir F. SMITHYes.
§ Mr. RAWLINSONI beg to move, in Sub-section (2), to leave out the words "or an officer of that Court duly authorised in writing by the Court for the purpose."
§ Mr. HEMMERDEThe Clause now provides that any bill of indictment which 755 but for this Act would have been preferred before a grand jury, shall be preferred before the Court before which the indictment is to be prosecuted, and the judge, or some officer of the Court duly authorised in writing shall append his signature to the bill. The question raised by the Amendment is whether in a case where the grand jury would return a true bill, the judge shall sign the indictment himself—and there may be hundreds of indictments to be dealt with—^or whether the clerk of the peace shall sign it. One naturally wants to get to work straight off at the beginning, instead of wasting time on pure formalities. In this case the Recorder would simply authorise the clerk of the peace to sign the indictment which he thinks should come forward. It is simply a matter of machinery, but the result of accepting this Amendment would be that very likely half an hour of time would be wasted while the recorder or chairman of the Court of Sessions was appending his signature to possibly a hundred documents. I can see no point whatever in the Amendment. There is no need to leave out these words. One would naturally authorise the proper person to exercise this ministerial function, and the judge of the Court would authorise the clerk of the peace to append his signature.
§ Mr. ELLIS GRIFFITHThe only question is who is the proper person to sign the indictment, and I think that might be made clear in the Bill. There is one other point which I wish to submit to the right hon. Gentleman, and that is this. We all know that grand juries have witnesses before them. It seems to me it would be intolerable to put upon a judge or recorder the duty of hearing evidence before deciding whether a true bill ought to be returned, and I hope the right hon. and learned Gentleman will make it perfectly clear in the Bill that there is no such duty cast upon them, so that, in the future, there may be no misunderstanding on the point. The intention is that the judge reading the depositions in the future shall upon the depositions make up his mind as to whether there should be a true bill or not. Although there has been in the past no cross-examination of witnesses before a grand jury, still they have seen the witnesses, and I submit that cither now or at a later stage it should be made perfectly clear, in order that there may be no controversy about it afterwards, that the learned judge of the Court or the Recorder 756 or the Chairman of Quarter Sessions shall, after reading the depositions, undertake these functions without going through the very laborious process of hearing the witnesses in order to find a true bill or not.
§ Sir F. SMITHThat point should arise on the Clause in the Bill before reaching which I shall move to report Progress, having regard to the undertaking I gave, and that will be dealt with to-morrow. As far as the Amendment which is now before the Committee is concerned, it is because I attach very little importance indeed to the discharge of this ministerial function that I agree to the omission of the words. The difference between the hon. and learned Member for Norfolk (Mr. Hemmerde) and me is that he is a judge who has to decide these things and I am not. It may be, however, that after what my hon. and learned Friend (Mr. Itawlin-son) has heard of the experience of the hon. Gentleman beside him he may not attach such importance as lie does to the Amendment being made. I attach no importance to it.
§ Mr. HEMMERDEI have had as many as sixty or seventy cases with indictments in each case to sign.
Mr. HEALYThe position of the right hon. and learned Gentleman is that when the judge rejects the Bill he can only reject it after hearing the witnesses who would otherwise have gone before the grand jury. If he is bound to do that in the case of a rejection of the bill, he is surely bound to do the same thing when the bill is found. He cannot either reject or find a true bill without a primâ facie case being made, and therefore, I think, the point taken by the right hon. Gentleman is sound.
§ Mr. POLLOCKBefore the Attorney-General reconsiders this Clause I should like to reinforce the arguments of the hon. and learned Gentleman the Member for Cambridge University (Mr. Rawlinson). I hope the Attorney-General will delete these words. I think the hon. Member who sits below me, who is the Recorder for a very large borough (Mr. Hemmerde), takes a somewhat gloomy view. His experience is that he would have to sign a great number of documents, but we have to consider the matter as a whole, and a great number of Assize Courts, at which a great number of judges sit, do not involve any such great number as he has to deal with, and I submit that the words which are the subject of the present Amendment give me some difficulty. Take an ordinary Assize 757 Court where there is not a very large number of indictments; who is the officer intended by these words? When the judge arrives, is the officer to be then appointed on that day for the purpose of carrying out this ministerial duty? If so, it really matters very little whether the judge himself does it, or the clerk, authorised in writing, does it; and if there are not very many indictments I should have thought it would be safer and better that the judge himself should do it, rather than that he should authorise in writing the officer underneath him to do it. Upon consideration of all the circumstances, I trust the Attorney-General will leave out these words as being, on the whole, unnecessary and taking from the judge a duty which ought to fall upon him.
§ 10.0 P.M.
§ Mr. SALTERI think it is hardly worth while discussing this particular Amendment, because it would be quite plain that the signing of a bill where it is found is purely ministerial. That has to be done in every case, except in those exceptional cases where the judge thinks there should be no bill, and that is a thing which must be done by the judge himself. Whether the mere ministerial signing of bills to go through should be done by the judge or by his deputy is unimportant. The question raised by the right hon. Gentleman opposite as to whether witnesses are to be heard by the judge is a very important question. I confess that it never crossed my mind that anything of the kind was intended or could take place. I think the Bill makes it perfectly plain that there is to be no examination of witnesses of any sort or kind, but if that is in any conceivable doubt it should be made quite plain.
§ Mr. RAWLINSONI read this Clause through and came to the same conclusion as the last speaker, that there would be no hearing of witnesses by the judge at all, but that the duty of the judge was to read through the depositions, and if he thought a true bill could Be brought he would say so, and if not he would say no. Then these words were pointed out to me by a very overworked Recorder, who shall be nameless, but who is not a Member of this House. He said it would be a serious thing to add these words, the omission of which I have moved. He said the mean-of the words is that a judge of a Court or an officer duly authorised in writing would be authorised to read the deposi- 758 tions and then to append his signature, because if that is not the meaning of the words they are absolutely unnecessary. They are either useless or distinctly harmful, and therefore I move that they should be left out. If my hon. and learned Friend's signature has to be appended to a large number of indictments and he chooses to authorise someone to do it for him owing to press of business, it is his signature, though the hand which writes it may be somebody else's: therefore these words are unnecessary.
§ Sir F. SMITHI think the matter is a very unimportant one, and I am willing to accept the Amendment.
§ Amendment agreed to.
§ Mr. KINGI beg to move, in Subsection (2), to leave out the words,
"provided that in any case where the judge whose duty it would have been but for this Act to charge a grand jury would have advised such grand jury not to find a bill of indictment a true bill, either as to the whole thereof or as to any count therein, the judge shall make an endorsement upon such bill of indictment to the same effect, and thereupon such bill of indictment or count therein shall be dealt with in all respects as if a grand jury had found no bill in respect thereof."
This is an Amendment which was anticipated before I spoke by the hon. Member for Donegal (Mr. S. MacNeill). A legal gentleman of very considerable experience in criminal law wrote to call my attention to this, and asked me to move to omit these words. He said a grand jury might have found a true bill in spite of the judge's advice in such a case, and if the grand jury is abolised the real course would be to make the committal for trial conclusive. It seems to me that this Clause is quite unnecessary. I hope these words may be omitted. They only make the framework of the Bill more obscure and the whole procedure more complicated.
§ Sir F. SMITHThe hon. Member, I think, is in error when he says that the subject-matter of the Amendment makes the fabric of the Bill in any way obscure. The proposal to omit the words ma5' be good or bad, but I think the meaning of the words cannot be in doubt. A point which is well worth the consideration of the Committeee is, assuming under 759 modern conditions the grand jury maintains any vestige of important functions, is it or is it not desirable that some attempt should be made to provide a substitute, while attaining the object which is the generally agreed object of this Bill? The more I have examined this question, the more I lean to the view that under modern conditions no real function of importance is discharged by the grand jury, and I would almost challenge anyone who has made an attentive study of the statistics all over the country of the proportion of cases in which the grand jury has thrown out bills to come to a contrary conclusion. Therefore, I myself care very little whether this provisio comes out or not. It has been my experience, and I believe that of those who have considerable knowledge of the working of our criminal law, that it is the common practice of judges at Assizes and of chairmen of Quarter Sessions in all important cases to give advice in charges to grand jury, and I say that, while you may have exceptional cases in which grand juries have not accepted that advice, in the majority of cases it is accepted. Therefore, if no security is necessary in the opinion of the whole Committee, by all means let it go out; but if any additional security is considered in any quarter to be necessary, do not let us say it is not provided. It' anyone values the function of the grand jury at least I offer them something to take its place. If the Committee as a whole is convinced that we might without any risk at all do away even with this, I am content, if that is the view of the Committee, but I advise them, if I may respectfully offer advice, having regard to the fact that there are some persons of experience who think otherwise, it might perhaps be prudent on our part to retain this provision, in the hope that, if there are apprehensions, they may to some extent be assuaged by retaining these words. I do not hold strong views on the point.
Mr. HEALYNo doubt the right hon. Gentleman has only done himself justice in saying that it was through regard for the interests, I may say, of innocence that he introduced those words. On the question of procedure, he has used the word "bill" throughout this measure. How can any judge order a prisoner to be discharged and find no bill against him on the depositions alone? It would be said at once that if the judge had seen the cogent witnesses 760 he would never have taken that course at all, whereas if this provision be omitted the moment the petty jury was empanelled the judge could say, "There is no evidence in my opinion before the judge, and your duty is to find prisoner 'not guilty,'" or he might say to the prosecuting counsel, "Do you think this case need proceed?" Therefore, as a provision in favour of innocence, it is wholly needless, and the prisoner would just as well obtain his ends by different methods. Whereas by leaving them in the Act you suggest that it is necessary in all cases to deal with the witnesses who would otherwise be examined before the grand jury. The old practice was to write the names of witnesses on the back of bills, and then the prisoner had the right to call upon the Crown to produce every person whose name was on the back of the bill. Here, by using the words of the Bill you will still suggest to the judges and to the advocates the idea that there should be some kind of primâ facie hearing by the judge in some informal way. The safer course would be to omit the words altogether. At the same time I fully recognise that the right hon. Gentleman in introducing them was only anxious for the liberty of the subject, and that it is to his credit that he should have taken this extra safeguard.
§ Mr. HEMMERDEI agree with the hon. and learned Gentleman who has spoken last. He pointed out that a judge forms a view; but certainly he does not according to the wording of this Statute have to examine witnesses. If the judge forms the view under this proviso, he can prevent a prisoner being tried, as the hon. and learned Gentleman pointed out. The judge has only to say to the petty jury— and if they are of opinion that view is really worth anything—and speaking generally the petty jury will hold that view—he has only to give the petty jury his opinion of the case and the prisoner is discharged. On the other hand, there are cases where the grand jury system has been used, not to protect prisoners rightly, but to protect them wrongly. There has been one or two cases where grand juries have thrown out bills which ought to have been presented. I do not want to go into those cases. But there are cases within certainly the last ten years which hon. Members will probably remember that occur in connection with this point. It puts upon the judge a very unpleasant duty in that particular sort of case. I 761 think it is not a good thing for the administration of justice that in certain cases I have in my mind—particularly one— where there has been political feeling and a prosecution has taken place, and the question comes before a judge who, after all, is but one man, and he decides that that prosecution is not to take place, such a decision is very much less satisfactory than when it comes before a grand jury, who, perhaps, decide wrongly that that prosecution is not to take place. Supposing these words go out and a case like that goes up from the magistrates where there is strong political feeling. The judge may endeavour to enforce his view upon the petty jury, but the ultimate decision is not with him, but with the jury. I think, generally speaking, where there are cases like this that the jury is at least as good a judge of the facts as is the judge. I think it is far better that in cases like that, where people may be wrongly shielded, that they should be taken out of the decision of one man and put into the decision of twelve.
§ Sir G. TOULMINIt appears to me that this provision is in the direction of a protection for prisoners only in those cases in which the judge believes them to be innocent. I think we may trust the judges only to use such an exceptional provision as this in very exceptional circumstances. I cannot imagine any judge in such a case as has been mentioned by my hon. and learned Friend making use of this provision. If he thought the case was such a one he would allow the Bill to go forward. It would only be in a case where he thought there was no true bill that he would take the decision upon himself, being, as it were, the grand jury.
§ Mr. SALTERI trust the Committee will consider carefully before they strike out these words. I am in favour of the abolition of grand juries, but we are not debating the necessity of them. We are debating an emergency Bill. Certainly if these words are struck out a valuable safeguard, which prisoners accused, and in all human probability unjustly accused, at present enjoy, would be taken away from them so long as this Bill operates. These words operate only in exceedingly rare cases where a man has been committed for trial, and where the judge thinks not merely that he is innocent or will not be convicted, but where he never 762 ought to have been sent for trial. There are such cases, and in those cases the judge suggests to the grand jury to ignore the bill, and they accept his advice in a great majority of cases, and then the man does not undergo the ignominy of being put into the dock. That will remain the position during the time that this bill will operate, and such a man will go away without trial. If these words are struck out then that man must go and stand in the box, the jury must be sworn, counsel will open the case against him, and witnesses will give evidence against him. It may be that the judge will break the case down, but that man for an hour or two has to undergo ignominy, in a, position he ought never to have been put into. I hope the Committee will not take away from men unjustly accused the right they enjoy under the present law.
§ Mr. MacNEILLI differ in toto from my hon. and learned Friend opposite on this point, and rather than take the course suggested I would much prefer that this proviso should be swept away altogether. He said that as the Bill stood it simply transferred to the judge all the functions of the grand jury; but it does nothing of the kind. It simply places before the judge what the hon. Gentleman near me has already pointed out, and it does not give the power of the grand jury. It is more by inference than by actual statement in the Bill that the functions of a judge in such a case as this would be to read over the depositions, and if on those depositions he has come not to a doubt but to an absolute conclusion that a prima facie case has not been made out, he then does what is tantamount to ignoring the bill. The depositions are in writing, and the magistrates who took them have had an opportunity of seeing the prisoner, of watching the demeanour of the witnesses, and the judge will say, "Well, So-and-So has seen the whole thing and thinks it a fit case to go to trial, and I shall not order otherwise." I do not know anything that judges are so jealous about as interfering with the decision of juries in criminal affairs. I remember that one judge retired from the Bench which he adorned when a Coercion Act was passed making the judges try certain cases. If he had to read the depositions more carefully, and if he concludes that there should be an indictment, the impression on his 763 mind will be certainly not a negative but an absolutely positive impression. I think on the whole that these provisos are not good. They are not good for the prisoner, they are undoubtedly lowering to the legal profession, and they give an enormous amount of trouble to the judge without any result. It may be said, "The grand jury has been suspended for the present, the judge does the work." He does nothing of the kind. He does not see the witnesses, and he ought not to see them. He does not hear the witnesses, and ho ought not to hear them. The thing is completely wrong that any man, merely by reading the depositions, can reverse the opinions of another man competent to judge, who has seen the witnesses, and who is familiar with the whole surrounding circumstances, which are so different when subjected to our gaze. T would urge that these provisos be withdrawn from the Bill.
§ Mr. POLLOCKI think it would be btter to maintain the proviso for the reasons given by the hon. and learned Member for Aldershot (Mr. Salter), and also on the ground of the illustration given so forcibly by the hon. and learned Member for Cork (Mr. T. M. Healy), who suggested that, as a matter of fact, and I think we all agree with him, there are cases in which when an indictment has been preferred and the jury has been sworn, the judge is within his right to say to the prosecuting counsel, "Do you intend to proceed with this case? Do you think you will succeed?" and to ask the prosecuting counsel whether, upon a review of the case, he will not agree to drop the prosecution and allow a verdict of not guilty to be pronounced.
The hon. and learned Member for Cork is perfectly right in saying that takes place, and rightly takes place. The judge and prosecuting counsel, after a short conversation, often arrive at a decision that the case is one which ought never to be opened, and that the prisoner ought to be at once released. Further argument proceeded on those lines. If this proviso is not in the Bill it is necessary for the judge to hear all the witnesses, and he cannot interpose until he has heard them all tell their story, whereas in actual practice it is far different. If the hon. Member for Cork is right why should not we give to the same judge a 764 slightly earlier power, so that if the same judge after reading the deposition is able to say to himself, "Suppose a witness said all this there would really be no case on which the prisoner should be convicted: the case ought not to be opened"; if that is his view, it is far more satisfactory that the judge should act at an earlier stage, and that, as the hon. Member for Alder-shot has said, the prisoner should be spared the ignominy of waiting, in suspense, the result of a trial which ought never to have been commenced, and which ought to be dropped at the earliest possible moment.
§ Sir F. SMITHVery different views have been held by different speakers. Under the circumstances, I would submit that, however seldom these cases may be, supposing there is only one case in 500 or one ease in a thousand in which a trained lawyer reading the depositions would say; "I am not satisfied that the man ought to be put upon his trial," this provision is justified. On the whole, I think that my hon. Friend (Mr. King) will agree to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. KINGI beg to move, in Sub-section (5), after the word Act ["Vexatious Indictments Act]," to insert the words "as subsequently amended." I believe that the Act of 1859 was amended and, if so, the words would, I submit, be required.
§ Sir F. SMITHIf it has been—
§ Amendment, by leave, withdrawn.
§ Mr. RAWLINSONIn Sub-section (6) I think that after the word "Chairman" it may be necessary to insert the words "or Recorder as the case may be."
§ Sir F. SMITHI will look into it.
§ Mr. SWIFT MacNEILLLikewise it must apply to the judges of the House of Lords.
§ Question, "That the Clause, as amended, stand part of the Bill," put, and agreed to.
§ Committee report Progress; to sit again To-morrow.