HC Deb 19 February 1917 vol 90 cc1091-7

(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 is to be prosecuted, and the judge of that court, or an officer of that court duly I authorised in writing by the court for the I 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 the 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 otherwise) 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.

(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 circurstances 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.


I beg to move, in Clause 1, Sub-section (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."

I move this Amendment in order to ask a question. I cannot help thinking that the Bill would have been very much improved if these words had been left out. I believe I am right in saying that the learned judges would very much prefer that this duty should not be put upon them. They do not like the idea, after the magistrate has committed a prisoner to take his trial that it should be left to them to say that he shall take his trial or that he shall not take his trial, as the case may be. That duty ought not to be put upon them. We must remember another thing. This applies not only to learned judges of the High Court, but also to Recorders, and, whilst desiring to speak with the greatest respect of all Recorders, still I think I am right in saying that there are certain Recorders of small boroughs in whom one would not repose implicit confidence. So much is that the case, that I remember when magistrates used to decline to commit persons to a certain Recorder. You may have the Recorder of a small borough before whom only one prisoner goes for trial in five or six years, and you give him by this Act, although a bench of magistrates after full consideration has committed a man for trial, the right to say that he shall not take his trial. I do not think it is a right that ought to be given to a Recorder, or indeed to learned judges of the High Court, and I think they would very much prefer that it should not be given. What is to be done in the case of a voluntary bill where there are no depositions? Is the learned judge to have all the evidence before him and to try the case in the first instance in order to say whether or not it is to come on for trial before him? I do not think that point has been raised. From what the Attorney-General says now, do I understand that he would have the witnesses before him in the case of a voluntary bill where there are no depositions. As a matter of fact, that point was put to me by a learned judge who wanted very much to know what would be the course which he would be expected to pursue under such circumstances, and it was chiefly for that reason I moved this Amendment.


I beg to second the Amendment. The greatest and most cardinal principle of law is that judges are to decide in reference to law and jurors in reference to facts. This Bill makes a judge in the most offensive way a judge of fact. He has to go over the depositions—they always do, as a matter of fact—for the purpose of charging the grand jury and to come to the conclusion whether, in his own mind a prima facie case is made out. That is not a judicial function, but the function of a juror, and is an invasion really of a very great constitutional right. When the Bill was in Committee the Attorney-General promised to consider the case of peers being indicted and that he would draft an Amendment, which has not been done.


The first point raised was very fully considered in Committee, and my impression of the Debate was that the opinion of the House was that this extra safeguard, for what it was worth, should on the whole, be preserved. My hon. and learned Friend says that judges do not like to differ from magistrates, but, in my experience, I have seldom met a judge who did not greatly enjoy overruling the Courts below, and there is very little pain and mortification caused to the Superior Courts when that takes place.


I was referring to the responsibility of exercising the responsibility of grand juries.


No one is fit to be a judge who is incapable of exercising responsibility. With regard to the second point as to judges being judges, of the law, and juries of the facts that is a generalisation, and there are often cases in which there are no juries at all.


Not criminal cases.


The generalisation is by no means confined to criminal cases. The judge to-day has the responsibility of instructing the jury on those very matters of fact and advising them. I think, on reflection, my hon. and learned Friend will see that when you are dealing only with a War Emergency measure that ground ought not to stand in the way of a necessary reform. As to the question of voluntary indictments which may be presented direct, without finding by the magistrates, that is dealt with by Subsection (5) of Clause 1. With reference to the last point as to the peers, that was considered, and it was felt that, as it concerned procedure in the other House, it should be left to that House to deal with it

Amendment, by leave, withdrawn.

Motion made, and Question proposed, "That the Bill be now read the third time"


I was not able to be present when the Bill was read a second time, and I desire on this occasion to make a few remarks. I was one of the members who served on the Royal Commission on the King's Bench Division in 1913. At the end of that year, as hon. Members will remember, there was a congestion of business, and the Government of the day appointed a Royal Commission, with Lord St. Aldwyn as chairman, to go into the reasons for that congestion, and to make a Report. The system of grand juries was one of the things we considered. We came to the conclusion that the system was obsolete and out of date, and a piece of machinery which might very well be done away with. On page 22 of the Report of that Royal Commission there is this statement: For centuries the consideration of bills of indictment by a grand jury was the only preliminary investigation before the accused was put upon his trial. Charges are now so thoroughly investigated by magistrates, many of them learned in the law, before any committal takes place, that the investigation of the same charges by a grand jury may well be considered a work of supererogation. We examined—not on this point—altogether some 100 witnesses, including judges of the High Court, barristers, solicitors, and lord mayors of cities. The conclusion we came to was that besides the grand jury system being obsolete and unnecessary, it was inconvenient. Mr. Justice Scrutton, now Lord Justice Scrutton, put two of the points in this way: He said having to summon the grand jury and the witnesses for a certain date and to give them long notice before that date prevented the flexibility which he thought was necessary in order that the judges should move on from one Assize town to another as soon as the business was over; that if you summoned a grand jury for a fixed date, that date had to stand, because the jurymen and the witnesses were summoned. He gave another reason which is, perhaps, more forcible, namely, that all the witnesses for the prosecution must be summoned for the first day of the Assizes, because they had to go before the grand jury, but that if the case did not come on on the first day they had to go home and come back again on the day when the case was reached. That is most inconvenient, especially in times of war like the present, when people want to attend to business and save expense. Those are two reasons showing the great inconvenience of the present practice of having a grand jury at all. I do not think that the grand jury is any protection to a prisoner. He now gets two fair trials, first by the magistrates, and in all cases, so far as my experience goes, those investigations by magistrates are made with very great care. Formerly there were no investigations before magistrates at all, and then the grand jury system served a useful purpose. Now that the investigation before the magistrates is so full and careful, the functions of the grand jury are unnecessary. The only reason that was brought before us—it was a very weak one—why the grand jury system still served a useful purpose was that it was said it brought the magistrates into contact with the judges and taught them how to administer justice. That can hardly stand. I have served on grand juries myself, and my experience is that as soon as the grand jury has finished its business the magistrates take the first train home. They do not stop to hear the case tried in Court by the judge.


They stopped to the high sheriff's dinner.


I have only one other point to mention. This Bill is admittedly a temporary measure. I will not quarrel with the learned Attorney-General on that ground, but I hope he will find that the measure is so successful that when the War is over the Bill may be made permanent and the grand jury system, which is obsolete, will be done away with permanently.


On the Committee stage the Attorney-General promised to consider the words "for the purposes of this Section, judge of a Court shall, in the case of a Court of Quarter Sessions, mean the chairman." I suggested it would be necessary to have some words indicating a Recorder in the case of a city or borough Court. The right hon. and learned Gen- tleman said he would have the matter looked into before the Report stage. He is probably right, but I have had one or two letters since from different people, and it seems to me that if the words are left as they stand, Recorders would be left out, and, after the speech of the hon. Member for Anglesey (Mr. Ellis Griffith) as to the terrible consequences that would ensue, I dare say he will deal with the matter in another place.


I never like to appear in any way penitent, but I really do appear in a penitential garb after the speech of the hon. Member opposite (Mr. S. Roberts). He said that one of the arguments in favour of grand juries was that they were brought into contact with the judges and learned the law. That would be one of the worst arguments going.


My hon. Friend misunderstood me. It was not my argument. It was put before us by certain witnesses.


I am glad it was not my hon. Friend's argument. He is far too wise a man, if he has any knowledge of the grand jury system, to rely on such an argument as that. It would be the strongest argument against the abolition of grand juries. The best system has its examples of great dereliction. I remember the case of a Chief Justice and an Attorney-General in Ireland. The Attorney-General wrote to the judge to say it would be a very good thing, so far as he could, in his charges to the grand juries, to affect the policy of the country especially in reference to that ruffian Daniel O'Connell. The judge, who generally destroyed his correspondence, forgot to destroy this letter. He stuck it in his armchair. The armchair went to the upholsterer, who sent it to Daniel O'Connell, who in turn sent it to Lord Brougham, who made it the subject of an attack on the Government. I mention this for the benefit of the present Attorney-General when he becomes Prime Minister when anything is brought home to him, so that he may assume a great air of English propriety and virtue, and never inquire into a matter at all. Peel was very hard pressed. He wriggled himself into a simulated posture of virtue, and said whatever they thought about the letter he knew nothing of the authorship.

Question put, and agreed to.

Bill read the third time, and passed.