HC Deb 04 July 1919 vol 117 cc1351-9

Order for Second Reading read.

Mr. BOTTOMLEY

I beg to move, That the Bill be now read a second time." The object of this Bill, shortly stated, is to create a companion Department to that of the Public Prosecutor, and the principle on which the Bill is based is that if the State sets up a Department for the purpose of prosecuting the citizens, all of whom are assumed by our law to be innocent until their are convicted, it follows, as a matter of course, that some State Department should be equally available for the defence of the accused people. At present the only provision of our law in that respect is known as the Poor Prisoners' Defence Act of 1903. That Act has proved to be in practice an absolute failure. It cannot be invoked for the benefit of an accused person until after the preliminary examination before the justices, and then only if the justices are of opinion that there is a primâ facie defence. Obviously an illiterate man before a justice is not likely to disclose a primâ facie defence, and, in addition to that— legal Members will appreciate the point—the fee which is allowed under the regulations to a barrister retained under the Poor Prisoners' Defence Act is limited to the munificent sum of £l 3s. 6d., which in these days would not attract any member of the Bar of great eminence. That is the whole principle of the Bill, and it simply provides, following the drafting of the Act which sets up a department of the Public Prosecutor, that there shall be a Public Defender, assistants and staff. It repeals the Poor Prisoners' Defence Act, which, I say, is obsolete and useless, and there are several consequential Amendments. I think at this stage of the Bill it is sufficiently obvious, and as I see unanimity of opinion in favour of the Bill, I need not trouble the House further.

Mr. PERCY

I am very conscious of the difficulty of my task in venturing to address this House for the first time, and if I should inadvertently fail to observe the Rules of the House, I beg that my inexperience will be accepted as my excuse. The hon. Member who introduced this Bill, with that sensitive touch— if I may say so—that he has upon the pulse of human affairs which characterises so much of his public work, has unquestionably brought before this House a subject that not only deserves, but should command, its very sympathetic consideration. Advocates in the criminal Courts cannot fail to have observed time and again how prisoners, sometimes charged with the most grave offences, are very seriously, and indeed shamefully, handicapped in their defence. It has been pitiable to see at times a prisoner, suddenly faced with all the dignity and circumstance of a Court, standing alone to fight for his liberty, uneducated, unprepared, and without friends, and I say that such a state of affairs as that is not fair to him. He has to make his defence often against the practised skill of an advocate paid on behalf of the Crown. The law has, in the course of centuries, raised some, very beautiful maxims to decorate its administration of justice. As my hon. Friend has stated, one of these maxims is that a man should be considered guiltless until he is proved guilty. It is true that an astute lawyer generally acts entirely upon an opposite) principle and, if he wants to be safe, he always looks upon the stranger at the gates as a rogue until he is proved to be a saint. But, of course, that attitude is concealed by the suavity of his demeanour. But suavity has its limits. For instance, he would not be such a hopeless, helpless idiot that, if he had to seize the goods of his opponent in execution, he would give him charge of the goods, so that he might destroy them if they were chattels, or sink them if they were ships. Having said so much regarding the solicitor I am afraid I must add the law is no better than the lawyer in the way it ignores the sanctity of that great maxim to which I have just referred. It will seize a man, handcuff him, take him to prison, ay, and keep him there until he is put on ferial. It is then often, as the hon. Member has mentioned, where injustice to a prisoner may come in. He has no money, and consequently no friends— When the sap of plenty lasts my friends swarm around me; but in the winter of my need they leave me naked. He has no opportunity to prepare his defence, and to get his witnesses while there is time, and the administration of the police is gradually drawing the toils around him to his destruction. I have known many cases of this description. Perhaps the most pitiful I know occurred many years ago. It has often been mentioned in this House. The late Mr. Matthews, the then Home Secretary, described it in Parliament as being perhaps one of the most extraordinary cases ever recorded in the annals of crime. If I refer to that case for the purpose of illustrating my point and enforcing my argument for the better treatment of poor prisoners, I trust the House will graciously pardon me these personal reminiscences.

The case; occurred in February, 1879—so far back! Two men, Branigan and Murphy, were apprehended at Alnwick, Northumberland, for burglary and attempted murder at a little village named Edlingham, situated some six miles west of Alnwick, nestling in one of the glens of the wild Northumbrian moors. These men were committed for trial, subsequently found guilty, and sentenced to penal servitude for life. It is a strange and extraordinary story. Seven years afterwards from facts which came to me I had every reason to believe that they were absolutely guiltless of the charge for which they had been condemned and were suffering. I shall never forget the years of unravelling and anxiety which followed. Suffice it to say that at last these men, who had done ten years' penal servitude, were released. The Home Office were convinced of their innocence. They were set at liberty. They received the Queen's pardon for doing that which they had never done ! They were granted £800 each compensation. They returned from prison broken men. The winter of their apprehension was a fearful one. Branigan and Murphy had been out of work. They had no funds, no assistance, no money, when they were apprehended. One of these men lived with his sister, and she parted with one bit of furniture after another, and at last she sold the actual bed and bedding for her brother's defence. Eight years afterwards I saw a letter from her solicitor telling her to get two subpoenas and pay5s. each for expenses for two witnesses, but they were not forthcoming because she had no money to pay them. I am convinced that had those men at the time of their apprehension had reasonable assistance to make inquiries to bring out the facts that were brought out seven or eight years afterwards they never would have been found guilty of the charge of which they were convicted. We must not lose sight of the fact that poor prisoners to this day for the same reason can have the same injustice done to them. This is true in spite of all that has been done for the protection of prisoners, and it is to remedy this state of things that the hon. Gentleman has brought in this Bill. I am in favour of the principle of this Bill heart and soul, but the point is, which is the best way to achieve the object we both aim at? My hon. Friend has suggested that a Department should be set up for conducting the defence of prisoners.

Mr. BOTTOMLEY

Subject to regulations, and there must be a primâ facie case made out.

Mr. PERCY

I understand that a primâ facie case must be made out I would suggest that if a man can defend himself and has means, there is no reason why he should not in the Criminal Court as well as in any other do so and be allowed reasonable and proper expenses if he is proved to be guiltless. I should regret the setting-up of a separate Department something like the Department of the Public Prosecutor. All that I can say from my experience is that if a poor prisoner has to rely upon a Department like that of the Public Prosecutor then God help the poor prisoner ! We must look at what the Public Prosecutor's Department is in order to appreciate what would be done in a Public Defender's Department. I have no hesitation in saying that the Public Prosecutor's Department is merely an expensive and unnecessary institution, useful mainly as the nursing ground for barristers and the friends of barristers in possession. There is nothing the Public Prosecutor does which is not being done by other machinery for the prosecution of criminal cases.

I was looking at the expenses of this Department and I see that last year there were allowances to clerks £7,300, for copying £2,100, allowances for messengers, cleaning inkpots and dusting books, £690, the total expenses amounting altogether to over £15,000. This year the estimate is over £18,000 for conducting some 907 cases. Every penny of that expenditure could be saved by the machinery already in existence for the prosecution of criminal offenders. If everyone having a primâ facie case is to be defended, the cost will be enormous for doing that which can and is being done by the law already established in the land. I quite agree with my hon. Friend when he characterises the Poor Prisoners' Defence Act as practically a dead letter and an utter failure. Nothing could be more true, and for the reason which he has stated. We all know that useful and excellent Acts of Parliament can be made absolutely null and void by bad administration, and that, in other words, is exactly how my hon. Friend has characterised it. It is bad administration that has made this Act the failure that it is.

Speaking from memory, it was on 30th December, 1903, following pretty quickly upon the Act, that the Regulations were made They provide that a solicitor shall be allowed £2 2s. and a barrister £l 3s. 6d., but in special cases certified they may receive not exceeding £5 5s. for the solicitor and £3 5s. 6d. for the barrister. Imagine a solicitor of any position and experience at all—we do not want amateurs for the defence of men; we want skilled men— attending Court, getting up the evidence, preparing depositions, going to the Assizes and spending one day or more there for a maximum fee in ordinary circumstances of £2 2s. or even in a special case of £5 5s., and imagine a barrister reading a voluminous brief and defending a case for £l 3s. 6d. or even £3 5s. 6d. I characterise it as a scandalous piece of parsimony and as ridiculous as is the expensive proceedings of the Public Prosecutor's Department. I do not hesitate to say that any badly-paid miner would in half the time make double the money. I suggest, instead of administering that Act in the parsimonious fashion in which it is administered, that it should be amended —and everything required could be done if it were amended—so that a prisoner unable to pay his own expenses should be allowed on the magistrate's certificate to select his own solicitor and so that the solicitor should do the work right through and be paid reasonably according to the work done—the Bill to be taxed so that the position of the State could in no way be prejudiced. If that were done then the injustice to prisoners at the present time would be completely swept away. The Prime Minister, a short time ago, said he desired this country to be a land fit for heroes to live in. I should like to add one more sentence to that beautiful idea. I should like to see it a land fit also for the poor, the distressed, and the afflicted to live in, a and where the doors of the Temple of Justice are always open and free to the poorest supplicant in the land.

Mr. GEORGE JONES

If it is right to use the finance of the State to prosecute prisoners it seems to me an elementary principle of justice that the money of the estate should also be used for their defence. It is quite easy to answer that a man. shall be adequately defended — any counsel or solicitor will undertake the work, but if, in the case of a poor man, an expensive defence is involved it is an absolute impossibility for him to get anything like a fair chance. It is a blot on our judicial system that the poor man cannot have the same chances as a rich man. What we have to do in criminal practice is to see that no innocent man is convicted. We have to see that the accused has a fair chance of stating his case whether he has money or not. I dare say the Solicitor-General will tell us that the counsel for the proseention is not out simply to get a verdict but presents all facts including those in favour of the prisoner. It is quite true he does, but he cannot present facts for the defence which are unknown to him, and it is impossible to know what a man's defence is until he has been interviewed by counsel or solicitor and various investigations made. I should like to call attention to the present system of fees— £l 3s. 6d. to counsel and £2 2s. for the solicitor. I know the profession to which I have the honour to belong is the most underpaid of all professions. I say the counsel's fee £;1 3s. 6d. is wholly inadequate to secure the best intellects for the defence. But the Treasury are not content with that limitation of fees, for the Home Office in August, 1914, issued a remarkable letter, set out in a report in the "Times" of a speech by the late Lord Chief Justice Alverstone, with which it set out that legal assistance must not be given to find out if a man has a good defence, but it is only to be given when he has disclosed his defence by the cross-examination of witnesses. That was not brought to the attention of the House when it passed the Poor Prisoners' Defence Act. Not only are the fees laid down ludicrously small, but an impossible condition is imposed. A large number of prisoners are men of poor education, some are not very intelligent, some have never been in Court before, and they are embarrassed and nervous. They cannot get out their points. He is asked to cross-examine a witness, and he probably starts by calling him a liar. He is finally asked if he will make any statement, but if he does so, according to this circular that statement is not to be taken as evidence that he has a defence. If, on the examination of witnesses, there is no defence disclosed, there is no £ 3s6d. The present system is a disgrace to the criminal jurisprudence of a country which prides itself on its scrupulous fairness to those charged with offences. I hope that the Second Reading will be passed and that in Committee we shall be able to make the various improvements suggested.

Major O'NEILL

Bills seem to issue forth from the pocket of the hon. Member for South Hackney (Mr. Bottomley) as rapidly and copiously as rabbits from a conjurer's hat. We have had various efforts at legislation by him this Session. He has timed the introduction of this Bill with a cause he has very much at heart. I am sure the real object of its introduction at a time such as this is to make quite sure that in one particular trial which will soon take place the prisoner shall be certain of having a good defender. We heard a great trial adumbrated yesterday by the Prime Minister. We know how it would go to the heart of the hon. Gentleman if it were not perfectly certain that, however great public prejudice might be against him, and to whatever extent the feeling of the country might be extreme, of all people who deserve to be properly defended the one man should be the Kaiser.

Mr. BILLING

The poor prisoner!

Major O'NEILL

With regard to the Bill itself, while I fully appreciate and sympathise with the objects the hon. Gen- tleman has in mind, there are one or two points which should be brought out, of which I am quite sure he is aware but which have not been mentioned in the Debate. The hon. Gentleman swept aside the Poor Prisoners' Defence Act. So did my hon. Friend below me (Mr. Percy). They said it was a Statute which had failed and was utterly unsuitable for the circumstances it was intended to meet.

Mr. PERCY

I said it was very suitable if it was properly administered.

Major O'NEILL

The statement was that it had failed in its effect. That is not an altogether fair presentation, of the facts. The hon. Gentleman stated that in order to gain advantage of the Poor Prisoners' Defence Act the prisoner must disclose a primâ facie defence. But that is also his intention under this Bill—a primâ facie case must be disclosed. Further, he said that a man never got proper legal assistance under the Poor Prisoners' Defence Act and that he would not get the advantage of it in the earlier stages of his case-. I agree that this is so in theory, but in practice it is not so. The formality of having to obtain previous solicitor's assistance and so on is constantly dispensed with, and the judge when he finds a case a suitable one to be defended merely calls on some member of the Bar, hands him the papers and says, "Mr. So-and-So, will you undertake the defence of this man?" That is done every day. I do not say it is an ideal method of defending criminals, but it is some justification for the Poor Prisoners' Defence Act. The administration of criminal justice in this country is probably on a higher level than in any other, and that is largely due to the trained ability of members of the profession, to which the right hon. Gentleman belongs. If you are going to exclude all young barristers from the training which they now get through the Poor Prisoners' Defence Act, and from getting a start in that way, it will be a serious matter for the future of the legal profession and the defence of prisoners.

The SOLICITOR-GENERAL (Sir E. Pollock)

This Bill in spirit, I suppose, would command the assent of most hon. Members. If I appreciate its spirit, it is to make certain that all persons who are brought into a Criminal Court of Justice should have a fair and adequate opportu- nity of presenting their defence. But a Bill of this sort involves a very serious charge upon public funds. The hon. Member (Mr. Percy) has indicated that if it is to be administered not in a niggard but in an adequate and whole-hearted fashion, there must be no parsimony which would prevent the objects of the Bill being obtained. If that is the spirit in which it is administered—and once it is placed on the Statute Book it ought to be administered whole-heartedly and with due regard to its intention and purpose—it would involve a very large expenditure of money. A Bill involving a change of that nature would have to be made a Government Bill, and would have to be brought in by the Government. It is not a matter which could be dealt with by a private Member's Bill. Hon. Members need not go away with such misgivings as have been expressed in one or two speeches as to the present administration of justice. There is no country where justice is administered so fairly, and in all countries there is a remarkable tribute paid to the essential fairness of British justice. It has been said, and I was sorry to hear the hon. Member (Mr. Percy) say it, that some charge could be brought against the Public Prosecutor's Office. I should be wrong if I did not at once offer the testimony not only that I have personally but which I have gained professionally as an answer to that charge. The Public Prosecutor discharges his duty in a wise, a considerate, a careful and above all in a most merciful manner.

It being Five of the dock, the Debate stood adjourned.

Debate to be resumed upon Friday next.