§ Order for Second Reading read.
§ Mr. TURTON
I beg to move "That the Bill be now read a Second time."
I wish first to make an appeal to hon. Members that this Bill shall not suffer through the Parliamentary inexperience of its introducer, and that hon. Members in all quarters of the House will give it their sympathetic consideration. No hon. Member will deny that it is the great aim of English justice that, however poor he may be, no innocent man shall be prejudiced in his trial through that lack of means, or shall, by his poverty, be put in greater jeopardy than a more wealthy man. That was the ultimate goal of the Poor Prisoners' Defence Act, 1903, and the Bill which I present this morning is intended to bring that Act up to date. I can do my part best I think by referring to the Act of 1903 at the commencement and seeing where we are situated in regard to it. It provided that in cases where a man had not the means to employ solicitor or counsel himself he should be entitled to have legal aid, in the form of a certificate from the committing justices or the judge at the court of trial, provided that he had disclosed a defence in the evidence given or in the statement made by him before the committing justices. This proviso was a condition precedent to the granting of the certificate. This Act has done a great deal of good and I desire that there should be no misunderstanding of any criticisms which I may make of this Act to-day. It is my belief that there are many men and women living free in England to-day, without a stain upon their characters, who, if it had not been passed would have been convicted felons or would have been branded with the definition of "people with a past." But this Act, since its infancy, has suffered, like so many orators, from want of clearness of expression and narrowness of scope. It came into force on 1st January, 1904, and yet on 23rd July, 1904, we find the then Lord Chief Justice (Lord Alverstone) making these remarks about it: 1416During the six months since this Act has come into force there has been some difference of practice among magistrates as to its scope and the principle upon which it should be applied, and the Home Office has received many communications upon the subject. This makes it desirable that I should explain the guiding principle of the Act. The Act was not intended to give a prisoner legal assistance to find out if he has got a defence. He is not to have solicitor and counsel assigned to him for such purpose. The governing principle of the Act is that people who have a defence should tell the truth about it at the earliest opportunity.He then goes on to mention the actual terms of the Act and proceeds:All that magistrates have to be sure of is that a defence requiring legal consideration has been disclosed at the time by a prisoner. The Act was passed in the interest of innocent persons and such should be advised in future not to 'reserve their defence' but to disclose it at once, so that it can be investigated. The prisoner will thus prevent the suggestion that he is keeping back his defence so as to give the prosecution no opportunity of investigating it.Notwithstanding that explanation there has been in the past 25 years great difference of opinion among magistrates and His Majesty's Judges as to the Act. Some of His Majesty's Judges have construed it strictly; others have given a certain latitude in their construction of it, but I think what is wrong is not so much want of lucidity in the Act as an inherent injustice that has become clear in the course of time. The Act of 1903 made the disclosure of a defence a condition precedent to the assignment of legal aid. Lord Alverstone said that the intention of the Act was that the poor prisoner should disclose his defence at the earliest opportunity, but in my judgment that interpretation is contrary to the intentions of Parliament and the canons of English justice. It is the first axiom of English criminal law that the prosecution have to prove their case, and this Act was not intended to force a prisoner to elicit his defence so as to bolster up a weak prosecution.
I will dismiss Lord Alverstone's explanation, however, and ask hon. Members to regard this condition precedent and see if it is justified or not as it stands. Take a case before the committing justices. The charge is read over to the prisoner, and he is then given a caution. He is asked, "Do you wish to say anything in answer to the charge? You are not obliged to do so unless you 1417 desire to do so, but whatever you say will be taken down in writing and may be given in evidence upon your trial." Now, it is on the answer to that invitation that the poor prisoner's right to have solicitor and counsel at his trial arises. It is often one of the hardest problems that legal advisers have to face, to frame the statement of an accused person—if he is to make any—before the committing justices, but a man, poor, ignorant of the intricacies of the law and bemused by that law's magnificence, has to work out that problem himself before he can qualify for legal assistance.
Is it not time to end this anomaly by which a man has to prepare his own defence before he can get the aid of solicitors and counsel to prepare it? That is what is said in the Act of 1903. It is not an easy thing at a moment's notice, when you are before a court, to make an answer to a question put before you. I think right hon. and hon. Members will appreciate that fact. At Question Time each day they hear innocent right hon. Members being asked a simple question, and all they do is to reply "I will declare my policy at a later date." If this law is not altered, and if by some calamity right hon. Members find themselves arraigned in a court of law, however innocent they may be, however penurious they may have become, I must warn them that they cannot make use of that defence: "I will declare my policy at a later date." It is to get over that difficulty, to enable an innocent man, however poor, to qualify for legal aid under this 1903 Act, that I introduce this Bill.
I will go through the details of the Bill quite shortly. I need not trouble hon. Members with Sub-sections (1) and (2) of Clause 1 of the Bill. They are similar to the operative part of Section 1 of the Act of 1903. The first material point occurs in Sub-section (3) of Clause I. This does away with the condition precedent that a defence must be disclosed. To clear the air, there is a definition of what is meant by a poor person. In Lord Alverstone's explanation it was given as "A person without means." In the Act of 1903 there was no such definition, and I think there ought to be some definition in this Bill. The definitions says: 1418appears to the certifying authority that his means are insufficient to enable him to obtain such aid.That is the aim of this enactment, that a poor man shall not be prejudiced in contrast with a more wealthy person. The provision in the Act of 1903 as to the disclosure of a defence being a condition precedent is replaced in this Bill by this: that a defence certificate shall not be granted in respect of a poor person unless it appears to the certifying authority thatit is reasonable, having regard to all the circumstances of the case (including the nature of such defence, if any, as may have been set up), that it is desirable in the interests of justice that he should have legal aid in the preparation and conduct of his defence at the trial.That is a suggested proviso in all cases except a murder charge. It is suggested in this Bill that in a murder charge, provided a man qualifies by not having sufficient means, he should always be able to obtain professional assistance. I think no hon. Member will quarrel with that. I think, further, that in other charges it is advisable to get rid of that conditional precedent provision which forces a man not to reserve his defence, and instead to put it in the discretion of the judge to say that it is desirable in the interests of justice that he should have legal aid in the preparation and conduct of his defence at the trial.
Clause 2 of the Bill deals with charges before a court of summary jurisdiction or examining justices. At present there is no power to obtain legal aid until justices have committed a person for trial. Clause 2 would remedy that. There are grave charges, such as murder, where it is very desirable that a man should have legal advice as to the conduct of his case on that charge. Frequently cases arise in which the legal adviser in the higher court is put in some difficulty over the conduct of the case by the man on trial in the court below having, without under standing the law, examined and cross-examined witnesses, introduced unnecessary witnesses, and made a statement which it was not advisable for him to make at that stage. Further, times have changed since the 1903 Act was passed. Under the Criminal Justice Act, 1925, a great body of grave charges which up to that time could not be tried in a court of summary jurisdiction can now be dealt with there. These charges include falsi- 1419 fication of accounts by a bankrupt, indecent assault, attempted suicide, and charges under the Forgery and Perjury Acts. If such grave charges are being tried in a court of summary jurisdiction, it is advisable that there should be some power on the part of the justices to grant the accused persons legal aid. I know it can be objected that these charges cannot be tried summarily unless the prisoner himself consents to it, but that objection is really a strengthening of the case for Clause 2. It is one of those difficult things which you have to decide: whether you should elect to be tried summarily or whether you should say, "I would rather go before the Court of Quarter Sessions or before the Court of His Majesty's Assizes." There are, therefore, two difficulties in these charges: whether you should consent to be tried in the Court below, and, if you do, how you are to conduct your case.
Clause 3 will repeal Section 1, sub section (3) of the Costs in Criminal Cases Act, 1908, and introduces instead this Clause. The object is that, though it is the intention of the Bill to repeal the Poor Prisoners Defence Act of 1903, that should not debar learned counsel and solicitors from obtaining the very limited fees which they obtain, but they should be granted fees similar to those they were granted under the 1903 Act. That is the sole material purpose of Clause 3. There are very many material alterations and additions, but I do not want to weary the House with a further detailed dissertation on this Bill. Most of the changes that I have not alluded to are either a consequence of the other alterations which I have mentioned, or they are the fruits of the experience of the last 25 years, and small changes, to make the Law in this respect work easier.
I would say, finally, that this Bill is a first instalment. Many of us would wish to go farther, but I understand the Bill is the least common multiple of agreement, and I ask the House to-day to help it on, because it is a great advance upon the 1903 Act, which, remember, was a great advance upon the conditions that obtained before. The 1903 Act brought in justice, neglected as it was, out of the cold and gave her a small room in which to live. Now she has grown up, and her 1420 children have grown up, and they want the accommodation provided by a house. This Bill which I present is a house. Some of us may want a palace, but I ask hon. Members to accept this house and to regard it as one step in our progressive sense of justice. The Act of 1903 does not represent the sense of justice of 1929. This Bill will remedy many in justices, and I appeal to the House to prevent justice from being confined within the four walls of the 1903 Act and to help it by giving this Bill to-day a Second Reading.
§ Sir JOHN WITHERS
I beg to second the Motion.
In the first place it is my pleasant duty to congratulate the hon. Member for Thirsk and Malton (Mr. Turton) on the excellent case which he has presented. There are three classes of criminal courts. Magistrates can act either summarily or as examining magistrates to commit; secondly, there are the assizes or quarter sessions; and thirdly, the court of criminal appeal. At present, so far as the proceedings before magistrates are concerned, whether sitting as a summary court or as examining magistrates, there is no legal aid before the court, but they can, when committing, assign legal aid where the nature of the defence set up by the poor person disclosed any evidence, or statements made by him, indicating that it is desirable in the interest of justice that they should have legal aid. My hon. Friend has explained the unfairness of that limitation, and one of the objects of the Bill is to get rid of it. Before the Court of Criminal Appeal there is power to grant aid, so there is no need for me to deal with that. That was the position when the Government of the day referred the matter to the committee presided over by Lord Finlay. Lord Finlay and the members of the committee examined the matter closely, and, after a great deal of discussion, they recommended the suggestion now embodied in this Bill, and nothing further.
In July, 1928, I had the temerity to introduce a Private Member's Bill which dealt with these points and also introduced some others. It was submitted to the Home Office, who, I am glad to say, accepted the matter in a quite friendly and sympathetic spirit, and, after going 1421 into it at considerable detail, said how far they could recommend the House to proceed with legislation. Just before the Dissolution of this year the Home Office sent me a Bill to which they said they were prepared to agree and it is substantially this Bill. Unfortunately, it was too late then to bring it before the last Parliament, and consequently here we are now. I must pay a tribute at once to the very sympathetic and kindly way in which the Home Secretary has treated this matter. Nothing could be nicer or more friendly to the cause which we all have at heart, and I thank him most heartily from these benches for it.
The present Bill deals with the position as follows. As I have said, at present, before the magistrates, there is no provision for granting legal aid at all. This Bill gives them power to grant legal aid in the form of the services of a solicitor where the person concerned can not afford it, and where, by reason of the gravity of the charge or exceptional circumstances, it is desirable in the interests of justice. That in itself is a tremendously important reform. Under the Bill, magistrates sitting either as a court of summary jurisdiction or as examining magistrates would have power to grant legal aid in such circumstances, and before assizes and quarter sessions power is provided whereby legal aid can be granted, by the services of both counsel and solicitor, on a certificate from the committing justices on commital or from the judge or chairman of quarter sessions after reading the depositions, if the per son cannot afford it. It provides that legal aid must be granted in the case of committal for murder, and I think the Home Secretary will probably agree that possibly in Committee that might be extended to attempted murder; while legal aid may be granted, if, having regard to all the circumstances of the case—including the nature of the defence, if any—it is in the interests of justice. It will be seen, therefore, that the Bill gives a very wide discretion to the committing justices.
It seems hardly grateful to point out what the Bill does not deal with, but I think it is advisable to do so, having regard to future possibilities as to legislation. There are two things which it does not do. It does not grant legal aid in appeals from justices on summary conviction to quarter session or assizes: 1422 and, secondly, it does not do away with the necessity for the poor person giving security for costs on appeal to quarter sessions or assizes. Of course, we all agree that frivolous appeals must be discouraged, but there must be cases where there ought to be an appeal from the justices, and some machinery ought to be devised for giving legal aid in proper cases. It is a monstrous thing, when one comes to think of it that a poor person may be convicted, admittedly wrongly, by some mistake, putting it as low as that, and that he should not be able to get legal aid in these circumstances. More over, not only can he not get legal aid, but he has to give security for the costs of the other side. That seems to me to be a matter which will have to be dealt with later on.
So much for details. I should now like to say just a few words on the principle which underlies the whole question of legal aid for poor prisoners. The difference between civilised and uncivilised States is that in the civilised States law is substituted for force. Law and its administration are very complicated, and it is necessary to have skilled guidance. In so far as poor people cannot afford to employ lawyers and are not given the services of lawyers, they are, in my opinion, deprived of their elementary rights to which they are entitled as part of their agreement to substitute law for force. I, therefore, urge this Bill as a small instalment of the debt which we owe to the poor, and I have the very greatest pleasure in supporting it.
§ Mr. McSHANE
I should like, in the first place, to add my congratulations to the hon. Member who introduced this Bill, and not less to the hon. Member who has just spoken, and who, as he implies, just failed to carry the Bill on a former occasion. I enter upon a discussion like this with considerable diffidence, because I feel that I am invading territory which belongs to a profession of whom a large number of ordinary people like myself are at times naturally suspicious. I think that at the same time I ought to say that the cause which is being advocated this morning justifies them. It seems to have been difficult in the past to obtain what I think most Members in the House this morning will regard as a very reasonable demand on the part of 1423 the poor. In my personal view, this Bill does not go nearly far enough, but I understand that if more were attempted the whole might be lost, and I am pre pared, therefore, having regard to that, to accept the Bill as it stands. To any one who, like myself, has been reared among the poor, there is no question as to the grave hardships which the poor suffer to-day. Before the law men and women are supposed to be equal, but that is only a theory. Anatole France once said that under the law of England the rich and the poor are treated alike—that if a millionaire and a pauper are found sleeping under a bridge without visible means of support both could be punished.
§ Mr. McSHANE
The irony of this is true. Most poor men and women who are summoned before a court do regard them selves as being at a very considerable disadvantage. They regard the law, not as a question of justice, but as a question of cleverness and cunning. In the first Report of the Finlay Committee, one of the conclusions was that the number of miscarriages of justice owing to lack of legal aid was not appreciable. I think that there is an amusing touch about that. It seems to argue as some people argue when they speak of the sum total of human suffering. They seem to think that hundreds of thousands, perhaps millions, of people must have been wrongly convicted before any reasonable ground can be shown for reform. The question, however, cannot be judged in any such way. No man or woman can bear more than a certain amount of suffering, and whether it is one case that is wrongly convicted or a thousand does not affect the principle at all. It would be better by far, even though it might cost something, that we should take the utmost care to ensure that not one single person should be wrongly convicted than that we should be afraid to spend a little money and allow them to be so convicted.
Let hon. Members put themselves in the position of a poor man who is brought before a bench of magistrates to-day. On the face of it, he has all the opportunities that any other man has who has been 1424 educated and who has some wealth. He is told that he may ask questions; he is told that he may cross-examine; but to a man who, it may be, can scarcely read, who knows nothing of the law, who knows nothing of cross-examination—in which much abler men than he might fail—to a man who knows nothing of these matters at all, the whole thing, of course, is a farce. There is a story told of a young man who was summoned before a bench of magistrates and who, to the surprise and amazement of the chairman of the bench, was making out rather a good case for himself. The chairman of the bench interrupted him and said, "Look here, young man, you cannot go on like that; you must have done something or you would not have been summoned here at all."
There is one aspect of reform that this Bill does not touch, and it is an aspect of reform with regard to court cases that will have to be dealt with sooner or later. That is the question of the magistrates' clerk. I only propose to deal with the matter for a few minutes, but I think that it is a most urgently needed reform. A good deal of injustice may be done entirely owing to the personality, or the lack of personality, of the magistrates' clerk in a court. Where there is a good clerk things are done properly. In a loose court a great many irregularities occur. I ought to say here that the magistrates' clerk whom I know best is an eminently able and entirely trust worthy man well known for his singular fairness and impartiality. With the guidance of a good clerk everything may go quite well in a court. The clerk is usually a solicitor, and in theory he ad vises the Bench on matters of law and procedure, and he takes notes of evidence. It all depends upon the personality of the clerk as to what that court is. If he is a man of strong personality, not only does he advise, but he frequently rules the bench. He does the talking and all the examining and questioning of the persons concerned. In other courts, a clerk may merely be a taker of evidence, in a rather perfunctory way. I have known of a case where a magistrate's clerk had not taken the usual care which he ought to have taken with regard to evidence, and on going away with the magistrates to deal with the case he actually obtained the loan of 1425 the notes of evidence taken by the police in order to help them to adjudicate on the matter.
There is far too close a relation between the magistrates' clerk and the police. In the minds of the poor the two are regarded as one, and often before the poor come to the Court at all they regard the magistrates' clerk as essentially counsel for the police. That is a matter which I hope on some future occasion will be dealt with. In the meantime, it is beyond the scope of this Bill. I am very glad in this my first Parliament to raise my voice on behalf of the poor and to take whatever share I can in what I understand may be the successful out come of this Bill.
§ Mr. LLEWELLYN-JONES
I should like as one who has been associated for nearly forty years with the administration of justice to speak in favour of the Bill which has been placed before the House to-day. I am quite certain that all members of my profession, and, indeed, the whole of the legal profession who have occasion to act in police courts, must appreciate the importance of doing a great deal more in order to enable a poor person to place his defence before the court. The hon. Gentleman the Member for Walsall (Mr. McShane) dealt with a number of complaints, all of which one constantly hears in various parts of the country. I am quite sure that any one who is constantly in a police court, either as an advocate or in any other capacity, will appreciate the pitiable position of an innocent person who has no means to present his defence. I have frequently in my younger days as an advocate sitting in court by the side of other solicitors seen a poor fellow get up in the dock to endeavour to make a statement or to endeavour to cross-examine. We have realised that he had a good defence on the merits of the case and felt that if anyone could have taken it up on his behalf the whole position might have been altered. I think that this Bill is going to go a long way in that direction.
It would be very easy to dogmatise and to theorise and suggest that the defendant in a criminal case is as entitled to as much assistance as the prosecutor in a criminal case, because, after all, the position in a court of justice in this country is that issue is joined between the Crown 1426 in very many cases or between the prosecutor, and the prisoner or the defendant. The ideal of the functions of the court is not that the prosecution shall succeed or that the defence shall succeed, but that justice shall be done. The only way that justice can really be done is by placing one party in exactly the same position as the other party. That is only an ideal which it would take a long time to attain, but, at any rate, those of us who can look back a few years must realise that there has been great progress in this direction.
In the first instance, I think I am justified in saying that there is on the part of justices a great deal more sympathy with defendants than there used to be many years ago. It has all been to the advantage of the administration of justice in this country that there has been the introduction of a new element upon the magisterial benches of the country. I can remember the time when the county benches of our country were confined to men who were possessed of a certain property qualification. A large body of men who were entitled and should have been placed upon the bench were excluded from the bench, and there can be no doubt that that exclusion meant that in a very large number of cases defendants did not get the justice to which they were entitled. We all agree that the defendant in a case or the prisoner at the bar has the right to have his defence fully and carefully placed before the court before which he is arraigned.
It is not always that that full right has been admitted by the law of this country. There was a time when the prisoner at the bar was not entitled to the privileges which he enjoys to-day. It was a great step in advance when, in 1898, the Legislature enabled defendants and prisoners in practically every case to give evidence on their own behalf. I know of no Act of Parliament which has done more to assist an innocent person in placing his defence before the court. I also realise, of course, from my experience as an advocate that nothing has done more than that Act to secure the conviction of many a guilty person. But having given the right to defendants and to prisoners to be defended, you should give them the means to be properly defended. It is no good giving them this right unless in 1427 some way or other they are provided with the means for their defence. I believe that this Bill, incomplete as it is in many respects, is certainly going to do a very great deal in this direction.
I am only going to say a few words with regard to the second Clause of the Bill. One notes the very wide scope of the Clause, but it does not deal merely with cases which come before the Court as a Court of Summary Jurisdiction, but also with a very large class of case which comes before examining justices with a view either of the case being sent to Quarter Sessions and Assize, or with a view to the case being dealt with summarily. It is at the very start of a criminal prosecution that it is essential that a person should have legal aid. What is the position to-day? A person is brought before the Court. The police have prepared the case with the thoroughness which is characteristic of the police, and very often the prosecuting solicitor is a man of considerable experience. The defendant is brought up without anyone to give him the slightest assistance. That is the point at which he ought to receive legal aid and advice, and I trust that in the Rules which, I presume will be issued when the Bill becomes an Act, a provision will be made so that no step will be taken in the prosecution which comes within the scope of the Bill with out the defendant having an opportunity from the very outset of consulting a legal adviser, with a view to placing his case before him.
The first step is the important step. The defendant may have evidence which should be placed before the Court, and he may have witnesses who should be approached so that they may be called before the Court. Unless this step is taken at the very earliest moment, there is a possibility that he may suffer injustice. May I in this connection refer to a case in which I acted as prosecuting solicitor something like 33 years ago, one of the first important prosecutions which I undertook on behalf of the police. It was a case which was subsequently taken over by the Treasury. A young fellow was charged with assault and attempt to rob a woman on the high road. The case came before the examining justices, and there were a number of witnesses, apparently reliable, credit- 1428 able witnesses, who recognised the man as a man who had been going through certain portions of the district. The man appeared in Court without any one to defend him. He seemed absolutely dazed. He simply put in a plea of not guilty, and the case was committed to the Assizes. But between the time when the case was before the examining justices, and its hearing at the Assizes, the man was able to get into touch with some of his friends, and an alibi was set up. Before the examining justices no suggestion was made that he had such a defence. That defence was set up at the Assizes, no indication having been previously given to the prosecution or to the police of the nature of the defence. I very well recollect the summing up of the learned judge in the case. One sentence secured the conviction of the man. He said: "The alibi is a perfect alibi: a too-perfect alibi." That was quite sufficient to secure a conviction. Immediately the man had been convicted it was realised in certain quarters that an injustice might have been done. The Press took up the case and a number of people became interested in it. Ultimately, after a lengthy inquiry made by the Home Office, who sent down one or two detectives from Scotland Yard, it was discovered that there could be no doubt whatever that the man's defence was an absolutely reliable defence, with the result that within two or three weeks after his conviction the Home Office re leased him from a term of penal servitude. My point is this, that had that man when he first came before the examining justices had the opportunity afforded to him, which is afforded under this Bill, he would have consulted a solicitor, who would have been able to advise him as to the proper course to adopt, and would have told him immediately to place his defence before the Court and to indicate the line that he proposed to take. The result would probably have been in that case that the whole of the evidence would have been brought before the examining justices, and instead of the man being sent to the Assizes, the case would have been dismissed. Apart from anything else, a large amount of cost which was thrown upon the county would have been obviated. That is one example, and I am certain that there are other hon. 1429 Members who are aware of a large number of analogous cases in which the defendants have been prejudiced because they have not had the means of seeking advice in the first instance when the charge was first before the Court.
There is another aspect of this Clause. If I am right in my interpretation of the Clause, it will enable a defendant not only to plead not guilty, but in the case of a defendant, say, a first offender, to realise that the plea he ought to put in before the Court is a plea of guilty. Everyone knows that there are occasions when it is extremely difficult for a solicitor when called upon to advise a defendant who says that he is guilty, to know whether he should plead guilty in the Court of First Instance, or whether he should allow matters to go to Quarter Sessions or the Assize. I have always taken the view that, however serious the offence, when a prisoner or a defendant informs me that he is guilty, the sooner that plea is made before the Court the better. There are a very large number of cases where, even if a prisoner is guilty of a criminal offence, there are extenuating circumstances which ought to be brought before the Court. In these cases I think it would be to the advantage not only of the defendant him self, but of the administration of justice, that at the very first Court he should be advised, his case should be dealt with by the Court in a merciful way, and he should place his case before the Court on the first occasion. For these reasons, I strongly support the Bill.
§ Mr. J. LEES
I am quite prepared to support this Bill, but not being a barrister or a solicitor, I want a little information on certain points. A little while ago an individual in my own division was tried at the police court for an assault upon the police. There were five justices of the peace on the bench. The policeman himself gave evidence that he had been assaulted, but not a single witness was brought forward to corroborate his statement. The defendant also gave evidence, and he had three witnesses and was defended by a solicitor, but, in spite of the fact that there was no corroborative evidence for the constable, he was sentenced to a month's hard labour. He was prepared to appeal, and the magistrates were prepared to allow him 1430 to appeal, but he had not a single penny in his pocket and therefore could not do so.
The hon. Member who spoke last told us that there is a new element on the Bench. That may be the case in certain parts of the country, but there are other parts of the country where it is time that this new element was brought in. It may be suggested that persons who have been convicted will appeal on frivolous grounds; but I should like to know whether in a case like the one I have mentioned, where the person cannot afford to appeal, this Bill will do anything to assist? If you read the newspapers you will find that other individuals who have been charged with the same crime have not been sentenced to imprisonment, although they were guilty. Some people say that you always get justice in the courts—I have my doubts. This poor individual, who was an ordinary miner, got one month's imprisonment; other individuals who have been merely fined £1 are now at some of the Colleges in Cam bridge. I want to know whether a case like the one I have quoted will be covered by this Bill.
§ Mr. TURTON
I am afraid I must in form the hon. Member that the point of an appeal from the court of summary jurisdiction was included in a former Bill. This is just a first instalment Bill, and it was found that it could not be included in the Measure.
§ Mr. LEES
In that case I hope I shall be allowed to move an Amendment at a later stage. In the particular case I have mentioned I do not think the Home Office itself can do anything and, there fore, if I have an opportunity I shall endeavour to frame an amendment which will bring such cases within the Bill.
§ Sir WALTER GREAVES-LORD
If I may follow the last remark of the last speaker I would urge him in all sincerity not to try and complicate this Bill, which is a very good Bill and a considerable advance in the administration of justice, by moving an amendment which would require very serious and elaborate consideration. This question of appeal is in my opinion a very serious one. It is so serious that the time has come when an inquiry should be made into the matter. In the first place, there is the very serious question, if you are going to give assist- 1431 ance and remove certain safeguards, as to the measures you must take to prevent waste of time by wholly frivolous appeals. At the same time there is to the poor man who is convicted in the summary court to day, an almost complete refusal of the right of appeal. It is a matter of very grave importance. I have had two in stances in my own recent experience which have shown me how difficult things are; two cases where grave injustice was inflicted and where the right of appeal was only saved by the fact that in one case a charitable organisation connected with the race of the person took the matter up and saved him from imprisonment and in the other case where a private individual did the same thing. There is a case for inquiry, but no move in this direction should be taken without careful inquiry. There is, of course, no reason why the inquiry should not be expeditious, but to introduce an amendment of the kind suggested by the hon. Member into this Bill would only complicate matters and might easily prevent its passage through this House, which every one of us want to see.
May I come directly to the Bill itself? It is a very great advance. The hon. Member for Flintshire (Mr. Llewellyn-Jones) showed most clearly the necessity for the disclosure of the defence at the earliest possible moment, and one of the defects of the poor persons system up to now has been that it has not brought about that disclosure of the defence which it was hoped it would. The right to grant legal aid is limited at the pre sent time to those cases where a defence is shown upon the depositions, which means that there must be a reasonable defence shown at the police court. The reason for that was that it was thought that if you limited matters in that way every prisoner who had a defence would disclose it at the police court. But old methods die hard, and it is not only the accused person who is unrepresented in the police court who fails to disclose his defence, but very often when he has a good defence and an adviser present the defence is not disclosed because there is an old tradition that it is better to reserve your defence. I hope that tradition will die quickly, and that one of the results of the prominence given to this debate will be that it will be realised that it is a bad tradition and the sooner it is 1432 done away with the better. Particularly is that true of the type of defence that an hon. and learned Member referred to—the defence of an alibi. If an alibi is a good one, the time which is given for examination between committal and trial gives the police every opportunity of en quiring into it, and those of us who have had some experience in the administration of criminal law know that when a defence of that kind on examination proves to be a good defence, there is no body of men more anxious to give full effect to it than the police, even though they may be associated with the prosecution.
I want to point out one or two of the difficulties of really serious moment that this Bill meets. You may have the case which goes from the police court, where no defence is shown although there is a good defence. That, we hope, may be done away with by granting legal aid in the police court. I trust that where legal aid is granted in the police court and the legal adviser is present during the police court proceedings and there is a good defence but he fails to take the proper steps to disclose it, he will disappear from the rota of those who are allowed to take poor prisoners' cases. That kind of thing does weigh very much against the unfortunate man who is accused.
But there are two other classes of cases. There is the case where a man discloses no defence, has, in fact, no defence, but is stubbornly refusing to plead guilty. In some cases that attitude, while it is in no way helpful to the accused person, results in the waste of a great deal of time, and results very often, by the very persistence in a wrong defence, in injustice to the man himself. I have often thought what an advantage it would have been if it had been possible, looking at the deposition, and seeing that the case was one where the accused person was stubbornly refusing to take the right course—what an advantage it would have been if he could only have been advised what is the right and proper course, namely, to plead guilty, so that all the circumstances in his favour might be properly and adequately considered without any of the prejudice which may result, and sometimes does result, to a man who persists in a wholly untenable position. The advice which may be tendered and 1433 which would be tendered, to plead guilty in a proper case is of inestimable value to the accused persons themselves. At present those of us who have to sit in courts and try indictable offences are literally prevented from giving a man that advice which would have been of so much use to him had it been tendered at the proper time.
There is the other type of case to which my hon. and learned Friend referred, and that is the case of a man who not only has no defence, but recognises it and is prepared to plead guilty. Many of these cases, in fact all of them, require very anxious consideration indeed on the part of the tribunal which has to deal with them. As things are now, you may ask some member of the Bar who is in court to look after the man's interests. It is a duty which is always freely undertaken, and has been undertaken as long as the Bar has existed, without prospect of reward. But the barrister who takes up a case of that kind under those circumstances is very much handicapped. He gets instructions from the man himself through the dock rail or probably in the privacy of a room to which he is allowed to go with the accused person, but he has no means of testing his instructions very seriously. He can go to the officer in charge of the case who has the man's history. Where that officer can give it him, he will always get the fullest possible assistance, but when information of that kind comes at the last minute, it is often impossible to verify it one way or the other.
It may mean that sometimes the in formation is put forward for the purpose of deceit, and that deprives the court of the opportunity of taking a proper course in the case. At the same time a great deal of the information which is given and which may appear incapable of corroboration, would be found amply corroborated if only an opportunity were given for full inquiry into it. It is, therefore, of no very great value to the court, under those circumstances, to have representation put forward at the last moment in that way. If this Bill passes it will be possible to take steps which will ensure those inquiries being made, even if the accused pleads guilty, at the earliest possible moment. When cases are put before the court, you will have from both sides such a complete and reasonable history 1434 of the man's circumstances as will en able the court to weigh up all the considerations which should apply to the case, and in the majority of cases those considerations will lean rather to the side of mercy than that of hardship.
After a life of 30 years spent in the practice and administration of the law, I regard this Bill as a very great and substantial advance. I rejoice that the circumstances of this Parliament enable us to turn our attention to matters so important, upon which there is such an enormous measure of agreement among Members of the House. While asking the Home Secretary to give his attention to the point which was raised from the Benches on his side of the House with regard to appeals, I hope that hon. Members, whatsoever little personal views they may have about this or that matter, will not seek to complicate a good and useful Measure by pressing their own individual fancies, hut will allow something which is really a substantial improvement of our administration of justice to go through, so that the country may at the earliest possible date get the full advantage of the Measure.
§ The SECRETARY of STATE for the HOME DEPARTMENT (Mr. Clynes)
Perhaps this is the appropriate moment for saying a very few words in order to indicate the attitude of the Government towards the Bill. We have had from every speaker most warm-hearted sup port of the Bill, and in the matter of the value of speeches the last has not been the least. We are indebted to the hon. and learned Member for Norwood (Sir W. Greaves-Lord) for the illuminating arguments which he has addressed to the House. I think the House will also wish me to say, with regard to what I believe was the maiden speech of the Mover of the Second Reading, that he made a most reasoned and convincing appeal to the House, and made a speech of such promise as to convince us that he will be heard with great acceptance in future discussions in this House. I must not omit to say a word by way of warm acknowledgment of the services rendered to this cause by the hon. Member for Cambridge University (Sir J. Withers). He has been a pioneer, and he has given very much time and labour to enable those who are behind this cause 1435 to reach the stage which has been reached by this Bill. The hon. Member who submitted the Bill to us pictured prisoners in the dock in comparison with the position of His Majesty's Ministers as it is sometimes revealed at question time in this House. It is true that frequently we have to reserve our defence, it is true that frequently we have to ask for notice, it is true that on occasion we must say that what we have to say must be uttered at some later occasion. No one of these several courses is open to the prisoner in the dock, and therefore the argument is sound. Indeed, we may carry the simile a little further and draw on our own experience in this House of Commons when we think of what is the atmosphere of the courts. Most people who go into those courts go there for the first time and are handicapped by the very atmosphere of the court; they are placed in a state of difficulty, and they stand under very great personal limitation indeed in their endeavour to do justice to their case.
I have known in this House of very experienced men accustomed to addressing audiences, and I have known hon. Members who have known this House for years, men of great and varied experience, who have hesitated to rise in this Chamber to address it, and when they have done so have felt and indeed have exhibited the very greatest embarrassment in doing justice to themselves or to the case which they may have had in hand. We therefore should be all the more disposed to do justice to those who are brought before the courts of our country. It is not merely a matter of determining the guilt or innocence of a prisoner, as the hon. and learned Gentle man has said. I think it is a great service to a court, and indeed it may be a service to the country, to have brought out in the court itself, through the medium of evidence and plea, the circumstances, the causes, the life conditions, the degree of provocation, and all other features which have relation to the facts which enable a judgment to be reached in a particular case, for these features of the case must have a very close bearing on the sentence, upon the degree of punishment, and that in turn is a matter of real national concern. It costs much more to keep a prisoner in gaol than, for instance, it costs the State 1436 to pay its share to support an unemployed worker. We very often hear some times unreasonable talk about the dole, but the State gets off very cheaply indeed in respect to its support of the unemployed workman as compared with the cost which falls on the State to maintain a man in prison. The decision of a court is often affected by the volume of evidence which may be brought out in a trial.
There are two points on which I think we may congratulate ourselves. One is that there is year by year a gradual diminution in the number of offenders, and that is all to the good. This is not the moment to discuss or enter into the causes, which are many and varied. Also we have on the whole greater consideration displayed in the courts themselves for the circumstances of offenders and a higher degree of enlightenment on the part of justices and of those who carry on the work in our courts for the cases which they have to try. I accept the view expressed by the hon. and learned Gentleman as to the inadvisability of trying to enlarge the present scope and dimensions of this Bill during the Committee stage. Its general objects have been amply explained to the House in preceding speeches, and to those main objects I will not further refer, but I think this Bill is, although a first step, a long step and a right step in the right direction. It will dispel some of that remaining impression or suspicion that there is in this country one law for the rich and another law for the poor, and it will place rich and poor alike to a very great extent indeed upon the same footing with regard to pleading their case. Undoubtedly the poor man has suffered under very great disadvantages, for although I would not imply that the law can be bought, a defence can be bought. It is impossible that justice should be done to all unless a case can be fairly stated for the poor offender just as well as the rich man can buy a defence by his own personal re sources. I am glad that this Bill has met with such wholehearted acceptance and that we have found lawyer and layman alike united in its support. Indeed, in my 23 years' experience in this House, I have not known an instance of such unanimity among the representatives of the law. We have usually found them taking opposite views for very reasonable 1437 reasons, but to-day we find them united as one may say, in the defence of the symbolic prisoner who has been envisaged by those who have prepared this Bill. The attitude of the Government then is one of complete sympathy with the proposals of the Bill and a wholehearted desire to see it speedily passed into law.
§ Mr. FOOT
I should like to express what I believe to be the profound gratitude of the House to the right hon. Gentleman the Home Secretary, who has already given such promising support to a Measure which I hope will help to make the next few months outstanding by the passing into law. I was interested to hear what the right hon. Gentleman said about the nervousness of speakers in this House. After an absence from the House for some years, I feel something of that nervousness in getting up to address the House again, but I am not surprised at that. I represent a constituency that was once represented by Edward Gibbon, the historian of Rome. He became a Member for Liskeard and was a Member of this House for three years, but he never dared to make a speech. I think he said that he was just engaged, in writing his history, on destroying an army of barbarians, when Mr. Eliot asked him to stand as the candidate for Liskeard. The Home Secretary commented on the support given to this Bill by lawyers. As a matter of fact, most of the law reforms of this country have been brought about by lawyers in this House. One need only refer to the story of a man like Sir Samuel Romilly and his association with those reforms, and to the fact that one of the greatest documents of freedom in the history of the world, the Declaration of Independence, was mainly signed by lawyers; and it was Edmund Burke who said that that revolution was brought about mainly by lawyers, who, by reason of their training, were able to snuff tyranny in every tainted breeze. There fore, when the hon. and learned Member for Norwood (Sir W. Greaves-Lord) sup ported this Measure, following upon a lifelong experience of the administration of the law and as Recorder in one of our great cities, he was not merely speaking for himself but maintaining the best traditions of a high profession.
There is one point which has not yet been brought out in relation to the Act of 1903. What were the defects of the 1438 Act of 1903? I should summarise them as being these, that the Act of 1903 did not apply to the police courts, that it did not give assistance to a prisoner unless he disclosed his defence, that it only gave assistance as a matter of privilege and not as a matter of right, that it only gave assistance when it was often too late, that it gave no assistance to a person committed to a higher court upon a coroner's warrant, and that it allowed for a scale of costs which seriously limited what counsel and solicitors could be engaged. But the strongest argument for this Bill is a recent Measure passed in this House, namely, the Criminal Justice Act. I had the opportunity six years ago, from one of these benches, to raise the question when the Criminal Justice Bill was brought into the House, and I asked the then Solicitor-General, who was recently His Majesty's Lord Chancellor, if he would take into consideration that, seeing that the Criminal Justice Bill so substantially enlarged the jurisdiction of the magistrates' court, bringing within their purview indictable offences that had not hitherto been brought there, it was wrong to pass that Measure unless at the same time such a proposal as this was adopted.
My experience has been along the lower line, the less profitable line, of the profession to which my hon. and learned Friend the Member for Norwood belongs, but he will bear me out in this, that the conduct of a man's case before Assizes or Quarter Sessions largely depends on what has happened before the magistrates, and the basis of the case at the Assizes depends largely on the depositions. That is why the solicitors acting in the lower court for a prisoner are very anxious that there should be got on to the depositions what are the essential facts. I remember, in dealing with the Criminal Justice Bill, that I pointed out how difficult it was for the ordinary bewildered newcomer into the courts to decide what to a lawyer might seem simple questions. He is asked whether he will plead guilty or not, which is apparently a simple question, but it is not really a simple question to answer. He is asked whether he will be tried summarily or by a later court. That again is a very difficult question to answer without advice, and the greatest difficulty to the accused in a court of summary jurisdiction is the sheer 1439 impossibility of properly cross-examining the witnesses for the prosecution. Every one of us has seen the bewildered attitude of a man who has been brought into a court, possibly for the first time in his life, and is told he can now ask questions. He invariably starts to make a statement, and of course he is very properly asked by the presiding magistrate to confine himself to questions, and he generally subsides into an embarrassed silence. The whole position, I think, is governed by the Committee of Inquiry set up more than 20 years ago under the chairmanship of Sir Harry Poland, who said in that report that a prisoner who is without means ought to be in no worse position to establish his innocence than a prisoner who is able to pay.
I wonder if the House will bear with me while I give one illustration of a case with which I am personally acquainted, under the operation of the Act of 1903? More than 20 years ago I was instructed in relation to the defence of a girl charged with murder. In that instance we had no assistance whatever as far as the proceedings before the magistrate were concerned. She was a domestic servant and utterly penniless. I happened to be associated with the Sunday school in which she had been taught, and she asked me to undertake her defence. For three whole days we had to fight that case before the magistrates, and then it went to the Assizes, where the only fee allowed to counsel was about five guineas. For three days that case was fought before the Magistrates and all the witnesses had to be secured at the expense of the solicitor concerned. No allowance was made for this but it was of the greatest con sequence that they should be secured at the earliest possible moment. At the end, when the case at the Assizes had finished, there was an outstanding expense of between £30 and £40 which had to be borne by someone other than the girl, and for which the existing Act made no provision.
I sometimes think that not only was the hon. and learned Gentleman continuing the tradition of the law, but the best traditions of this country in dealing with a matter of this kind. It is something on which every writer from the earliest times who has looked at our social history has written, from Piers Plowman 1440 to John Galsworthy. The matter concerned Shakespeare again and again, and he says:Plate sin with gold,And the strong lance of justice hurtless breaks;Arm it in rags, a pigmy's straw doth pierce it.What Shakespeare saw in his days as a reproach to our country has happily been somewhat removed by recent legislation, and I hope it is now to be entirely removed. The passing of this Bill will do something to maintain what is the essential principle of Magna Carta:We will sell to no man, we will not deny or defer to any man, justice or right.Much that I intended to say is unnecessary now, having regard to the declaration of the Home Secretary that we so warmly welcome, but in one concluding word I will refer to a letter that was once written to this House by one who, I suppose, will be recognised by many of us as the greatest Member who ever served in this House. His statue is outside the House of Commons to-day, although his head was once placed in derision on the top of Westminster Hall. Oliver Cromwell wrote in a letter to one of your predecessors, Mr. Speaker, and it is significant that it was written on the day following the battle of Dunbar, September 4th, 1650. It was a long letter addressed to the "Hon. William Lenthall, Esquire, Speaker of the Parliament of England," and it concluded with these words:Relieve the oppressed. Hear the groans of poor prisoners in England. Be pleased to reform the abuses of all professions, and if there be any one that makes many poor to make a few rich, that suits not a commonwealth.
§ Mr. LLOYD
In the very short time that I have had the honour of being a Member of this House, I have been impressed by the perfect fair play extended by all sections of the House to one who speaks for the first time in this historic chamber, and I feel confident that I shall have the same treatment as others. My experience does not entitle me to speak with the authority of certain hon. and learned Members of this House, because that experience has been very short, but I may add to it many years of experience as a police court reporter, during which I have had the opportunity of 1441 seeing the terrible disadvantages under which poor persons charged with crimes labour in a strange atmosphere. I have also seen, not only the distress of the prisoner himself, but the distress of an aged mother or a sister who is watching in agony a boy whom they know well not to be doing himself justice before his judges. And so I welcome with earnestness this Bill, and I think it would be a mistake if any Amendments were moved to it, because it seems quite clear that we have at last reached that stage when the House is a real Council of State, and we are in complete agreement on a humane reform.
Although Amendment may not be desirable, perhaps a little criticism of this Measure may be permitted. It does not in my opinion go sufficiently far, it is not sufficiently downright, and I was glad to hear the hon. Member who moved this Bill, in a very able speech, say that this was just an instalment of reform in the direction of providing the poor with the legal advice which they ought to have. The standard to which we ought to attain was described by another hon. Member when he said that the poor man should be under no greater disability in putting forward his defence than the rich man. In order that that may be so, the poor man must have, I submit, an absolute right to legal assistance on proof of poverty only. Does this Bill provide a right of that kind? It does in case of murder, apparently, because in Sub-section (3) of Clause 1, paragraphs (a) and (b) I read:the certifying authority.…So, obviously, a large class of serious felonies is not in my humble judgment properly provided for under this Bill. The granting of legal aid is permissive and apparently it comes to some extent after the disclosure of the nature of the case and próbably a disclosure of the nature of the 1442 defence. I quite agree that, as a general rule, it is desirable for an accused—I do not like the word prisoner applied to a man who is merely accused—to disclose his defence as early as he possibly can, but there are exceptions to that rule, as was laid down by the Committee on Legal Aid for the Poor in a report published in 1926, when it was stated that there might be exceptional cases where it was in the real interests of the prisoner not to disclose his defence in the lower court and the only way of avoiding a certain pressure which could be brought upon the prisoner to disclose the nature of his defence is to provide that all he shall have to prove in order to secure legal aid is his poverty. But still this is a large advance on the condition of things as they are, and I have no desire to raise any carping criticism, because I sincerely hope that this will very soon be the law of the land.
- (a) shall grant a defence certificate in respect of any person committed for trial upon a charge of murder; and
- (b) may grant a defence certificate in respect of any person committed for trial upon any other charge if it appears to the certifying authority, having regard to all the circumstances of the case (including the nature of such defence, if any, as may have been set up), that it is desirable in the interests of justice that he should have legal aid in the preparation and conduct of his defence at the trial."
The most important reform in this Bill is the provision of legal aid in the courts of summary jurisdiction. It is in these lower courts that you may take the step that is going to lead ultimately to success or the fatal step that may lead to conviction and perhaps to conviction wrongly founded. All who have the smallest experience of poor men whose cases come before these courts must realise how important it is for the defence that the person accused should be able to go to his legal adviser at the earliest possible moment and not when the accused has been in the dock at the assizes or at the quarter sessions.
There is one other case omitted from this Bill, which is to some extent a blot on the Bill itself. I know the Bill deals only with accused, but there is a pathetic figure in the police court who is called the complainant and who is often hampered by poverty in affiliation cases. I should have liked to see in the Bill a figure of that kind included for consideration on the score of poverty.
I welcome this Bill and I believe it will help very considerably in removing that bitter feeling among the masses that there is one law for the rich and another for the poor. That bitter feeling has been stressed slightly in these benches, where I believe lawyers are no more popular than they are in other walks of life. The law, as far as it is concerned, makes no distinction between rich and 1443 poor. The injustice, the inequality between rich and poor, arises not from the law itself, but out of conditions extraneous to the law, out of what is, in my opinion, an unjust social and economic system.
§ Mr. MARJORIBANKS
It is an appropriate circumstance that the Mover of the Bill should be a young barrister in daily touch with poor persons and that it should be seconded by an experienced member of another branch of the profession who has done so much in the courts. The two main objections to the present law have been expressed very clearly in the speeches. They are, first, that a prisoner is handicapped in the police court when he is deprived of the ordinary privileges of a man who can spend money on his defence, because he has pretty well to disclose his defence in the police court to get assistance. A more generous interpretation was expressed by Lord Alverstone who said the Act was passed in the interests of poor persons, who should disclose their case at once so that it could be investigated. This seems to me to contain what is really a great injustice, because that does mean that there literally is one law for the rich and another for the poor. The rich man, who can afford to pay for his defence, can reserve his defence; the poor man, who has to seek aid from the State, cannot. That great injustice is being removed by this Bill. It seems to me that there is an overwhelming case for this Bill.
I should like to relate one single story which illustrates these two great grievances which are felt by poor people in regard to the present law. In a case within my own experience an ordinary working man was accused of a most extensive and complicated fraud, involving a large sum of money. He was a foreman, and was engaged in building con tracts. He was brought before the magistrates, and at that time he could afford, although a poor man, to engage a solicitor in his defence. His solicitor advised him, in view of the complicated nature of the case, to reserve his defence, and he did so. Afterwards, he had no more money to enable him to pursue his defence. The solicitor whom he had originally instructed did not feel 1444 himself able to continue the case on those terms, and the accused applied for legal aid; but the magistrates could not grant him legal aid because he had disclosed no defence. He had one resort open to him; he had the resort at the last moment of a dock defence; and I do hope that this Bill will tend to drive out that antiquated system of choosing a defender of your liberty, of your life, or of your personal reputation. It is really a childish way of providing for a defence. The unfortunate accused person has to stand in the dock, and from the backs of the wigs of learned counsel he has to choose which counsel shall defend him. There is an authentic case in which a prisoner did not realise until his actual defence began that he had chosen a Portia; his advocate was a lady. No doubt she was a very able lady, but he was ignorant even of the sex of the advocate whom he had chosen.
But to go back to my story. This working man at his trial at quarter sessions found himself in court with no defender at all. The prosecuting counsel, a very able counsel, instructed by the Board of Trade, and with a pile of documents, was there in court. There was only one other counsel in court who could defend this man. He had no choice whatever; he had to take the advocate who was there. When that advocate went down to interview the prisoner he found that the prisoner had a long and complicated defence which he was entirely unable and incompetent to put forward, and at a moment's notice he had to put it forward to the court. By a fortunate chance it appeared that the real culprit had gone abroad, and this man was accused in his stead. That man was innocent. but had he not been defended at all he would have served a long term of penal servitude for a considerable offence; because a very large sum of money was at stake. That would have been a very grave injustice; and that instance of which I have told the House is a severe indictment against the present law. Under this Bill, both those two grievances are removed, and I think therefore there is an overwhelming case for this Bill.
I should like to conclude by saying that I think it a very good thing, and it gives me very great pleasure, that this Bill comes from this side of the House. Hon. 1445 Members opposite are often inclined to look at the ordinary material disadvantages of the poor in every-day life; they are, perhaps, not so much inclined to consider those crises which may occur in the life of a poor man, such as when he is before a court of justice and is faced with that bewildering and terrifying atmosphere without any assistance whatever. I am profoundly gratified that the hon. Member for Thirsk and Malton (Mr. Turton) should have moved the Second Reading of this Bill.
§ Mr. SORENSEN
It is a very gratifying moment, gratifying to us all, to find ourselves in this benevolent atmosphere after the thunder and lightning of yesterday. Hon. Members in all parts of the House must feel exceedingly gratified to find, contrary to the fallacious assumption of many people, that lawyers have hearts. As a matter of fact, the various contributions to the Debate which have been made by members of the legal profession this morning, would, I am quite sure, form the subject of an excellent caption for one of our more melodramatic films, "The Heart of the Law." But all of us, not only suspected, but knew, that lawyers had hearts, and we did not invariably believe what we have so often been told to the contrary. Secondly, it is very gratifying to us on these benches to feel that our Friends who are opposite to us are this morning not opposite to us except in a geographical sense; they are with us in advocating this Measure, which will enlarge the equality of opportunity which those of us who sit on this side of the House have constantly advocated.
I do not speak as a legal man, but purely as a layman, but nevertheless as one who has on many occasions found himself in police and other courts. Personally, I feel that it should be the duty of all public men, and of those who strive for public office, to enter into the various courts from time to time, if not to support some unfortunate individual, at least to observe and analyse the atmosphere that therein they find. Associating with dog thieves, drunkards, and others outside and inside a court is not only a humiliating experience, but an illuminating one as well; and as one has observed on many occasions, sometimes from the dock itself, and sometimes from the body of the court, the circumstances 1446 to which other hon. Members of this House who have been heard this morning have referred, I would certainly endorse the plea which has been so eloquently made by other speakers in this Debate. One knows perfectly well that when an accused is in the dock, in many cases, being bewildered by the rapidity of the action which is taking place and by the strange atmosphere in which he finds him self, he stumbles and becomes inarticulate, and his very silence is sometimes misinterpreted by well-hearing but misguided, and perhaps sometimes inefficient, justices as being an indication of his guilt. Sometimes, on the other hand, a prisoner will make frantic endeavours, even to the extent of selling up a portion of his home, to secure a solicitor to put forward his defence. A case within my own experience within the last two or three weeks has brought home the fact to me. It was a case in which a person, having struggled for many years to acquire a home, had to sell it for something like ten guineas in order to secure a solicitor to defend him. These cases are, I am sure, as familiar to many other hon. Members here as they are to myself; and for that reason I would certainly heartily endorse the plea which has been made for the passing of this Bill, and once more express my very great gratitude to all sides of the House, Liberal, Conservative and Labour, for the fact that this principle of the equality of opportunity is being advanced.
Those who have been associated with trade unions in the past, before the days when they were recognised by great companies, and therefore before the days when they had the right to appoint one of their own trained representatives to plead their case before directors and others, realise that in some measure this particular Bill is analogous to the power which the trade unions have obtained to be recognised by the employers of this land. Before that power was obtained, employers often informed those in their employment who were disgruntled or distressed that all they need do was to appear before them in the board room or before the manager, and their case would be settled. As a matter of fact, humble workers in those days knew perfectly well that, however strong their case might be, they could not possibly expect to put their case to the employers as clearly, as frankly, and as decisively, 1447 as one of their own number who had been selected and trained for that task. Now, fortunately, organisers and secretaries of trade unions can appear before employers and put the case of their men with ability and with effect. Because of that fact alone, I am sure that all who are interested in trade unions, and in the organisation of the working-class, will welcome this step towards the enlargement of equality of opportunity.
§ Mr. MACQUISTEN
The hon. Member for Glamorgan (Mr. Lloyd) mentioned that he had often attended the police courts and other courts as a reporter, and I can see that he has had experience in that respect which is perhaps even more than the experience of members of the profession to which I belong. I may recall that one of the greatest advocates in the courts and one of the greatest winners of jury trials in this country was a gentleman who used to be a Member of this House, and who spent many years as a shorthand reporter in the Law Courts, with the result that he got the best possible information on all points of law. I am sure my hon. Friend's speech indicated that he has not wasted his opportunities in the police courts, because of the careful way in which he presented his case. My only excuse for intervening in this Debate is that I happen to have served my time as a solicitor for the poor in Glasgow, and as counsel. I did the work of six poors' counsel during the War period. In fact I was fully occupied with that work. I know the ins and outs of the whole business, and what I am surprised at is that we should be here in this twentieth century discussing a thing which was provided for in my native country 500 years ago.
A great American jurist said that the fact that the law courts were not accessible to the ordinary citizens, or only to a very small percentage of them, was one of the most grievous causes of discontent. He was speaking of civil wrongs, and he further said that in Scotland alone has a remedy been found. That remedy does not apply only to criminal offences as does the proposal now before us. I may point out that Clause 3 of this Bill provides that the local authority are to pay counsel and solicitors. It is very desirable of course that they should be 1448 paid, and that is another step towards solving unemployment among a class who are not always fully employed and who ought to be, but, whether the local ratepayers will look at the proposal with the same enthusiasm, I am not sure. As I was saying, however, we have found a remedy for this grievance in Scotland. Some hon. Members may have read in their school books about Catherine Douglas, who tried to defend the poet King James I of Scotland in the crypt at Perth at her own peril by putting her arm into the staple of the door. That good King was the best King we ever had in ancient times, and he made an enactment which has so impressed me with its sobriety, its brevity and its expressiveness that I wish the draftsman of Acts of Parliament to-day could take a lesson from it. I wish there was some of the blood of James I of Scotland running in their veins. That enactment is as follows:1424, James I., cap. 45.Gif there be ony pur creatur for defalte of cunnyng or dispense, that cannocht or may nocht folow his caus, the king for the lufe of God, sal ordane the juge, before quhom the caus suld be determyt, to purway and get a leil and wyse advocate to folow sik pur creaturs caus; and gif sik causes be obteynit, the wranger sal assyith baith the partie skaithed, and the advocatis coastes and travel; and gif the juge refusis to do the law evenlie, as is before said, the partie pleanzeand sall have recourse to the king, qua sall see rigourously punished silk juges, that it sail be example till all uthers.That has been the law in Scotland for 500 years and, as I say, it is extended to criminal cases, and the result is that a certain number of solicitors and advocates are conscripted every year to defend the poor both in cases of civil wrong and in criminal charges. In the civil cases, if we win our cause we recover our fees from the other side, if they can pay, and they generally can pay. Of course in these cases the party concerned is not entitled to all the privileges of the courts until he has appeared before a court of probable cause, consisting of counsel and solicitor, who see that it is not a blackmailing or oppressive action. The matter is investigated, the statements of wit nesses are gone into, and, once the party passes through that net he has in all probability a fairly good case to go forward.
In the more barbarous parts of this island South of the Border, about 100 1449 years after the Scottish enactment, Henry VII endeavoured to introduce something similar. He brought in a Bill to provide for the defence of poor people, and the pursuing and avenging of civil wrongs in regard to poor people. But he carefully provided that the counsel and attorneys should get nothing out of it. Everybody knows what the opinion of an unfeed lawyer is worth, and the result was that the poor man did not get Very much "forrader." He also provided later on in another Statute that if a man raised an action for civil wrong and failed to win it, having got the benefit of the law as regards poor persons, he then should be rigorously punished and, according to an eminent legal writer, the punishment was flogging, which was not much encouragement to the poor man to vindicate his rights. If he lost his action, it was taken out of his skin. But English lawyers ingeniously developed a scheme for getting round the Statute of Henry VII and invented what they called "Dives costs." If a man won his action and got more than £5, he ceased to be Lazarus, and become Dives, and was then entitled to tax his expenses against his defeated opponent, and his counsel and solicitor were paid. But in 1886 some worthy people took that matter to the Court of Appeal or the House of Lords, although it had been the practice for about 200 years, and it was held to be a violation of the old Statute providing that the counsel and Attorney should take nothing.
Therefore, I agree that some legislation of this sort is necessary, and I do not think that this Measure goes far enough. I see that it is not extended to Scotland, which is rather unfortunate. I have been on circuit many times and have defended scores of cases of this kind, even murder charges, and never even smelt the sign of a fee, which, of course, may have been quite right. For I recollect a story of the celebrated Lord Young. At a function which he attended a young barrister who was asked to make a speech said he could not do so, but that he would give the company the peroration which he had delivered in a murder trial. At the conclusion Lord Young asked him, "Did you get the man off?" The young barrister replied, "No, unfortunately he was hanged," and Lord Young retaliated, "They hanged the wrong man." It is possible therefore that no fees were justi- 1450 fied by the services rendered, but I think it a pity that this Measure is not extended to Scotland. We would like that Scottish counsel and solicitors should not have to rely entirely on the civil actions in which we get our reward if we win our causes, for, as I have said, if we do not win the cause, we lose the reward. I must say that there is something intensely interesting in that system, and it appeals to the sporting instincts of mankind.
During the War, I discovered by intuition that it was my duty to send back a well-feed brief in order to take up a poor man's case, and I discovered always that it was according to etiquette and rule, to first serve the poor. There is something in that which appeals to the ordinary human mind. Of course I know that is what is called in England a speculative case, but in Scotland it is directly permitted by that ancient statute of good King James which I have quoted and as the practice is safeguarded against abuses, it is an enormous boon in cases of civil wrong. Mark you, a civil wrong can be far more grave than a criminal wrong. As a result of a criminal wrong, a man may for a time lose his liberty, but the whole fortune and character of an injured man may be jeopardised if he has not the means to go to the courts for civil wrong. I regret to say that both in England and Scotland the courts are becoming inaccessible to people of small means, not absolutely paupers, as a result of the heavy dues which are exacted. They have been doubled in Scotland and there is even added to the Court dues a fee of 10s. an hour while a suitor's counsel is speaking, as if he were a taxicab. Consequently a lot of people of small means are deprived of resorting to court. The very poor, of course, may get exemption from these charges. I wish the light of public opinion were directed more towards making the courts of law more accessible to the vast mass of the population. The Lord Chief Justice has written a book about bureaucratic tyranny, and says that people are often shut out from the law courts, and I say with all respect that the costs of litigation, including the charges of those who practice in the courts, have in recent years gone up to such a fabulous figure that only one who represents a great corporation or a trade union can have recourse to the courts; 1451 for the ordinary citizen it is out of the question.
Unless this Measure is extended to civil cases, the only people who will be able to get into the law courts at all will be big corporations, millionaires, trade unions, or other aggrandised bodies of that kind, and those who get the benefit of the special provisions for poor people; for the masses of the people who are between these two classes recourse to the courts will be practically barred. The King's courts ought to be open and free to all his subjects. Judges should be provided, and there should be no charges for stamps, fees or anything of that sort, because to get the King's justice is an inalienable right. In Aberdeen, in Scotland, a panel of arbitrators was started not so very long ago for various causes, with the result that in that town people have practically abandoned the law courts. They find they can go before skilled arbitrators and get their cases decided, very often without legal assistance. The King's courts ought to be the place where people go to get their grievances remedied, and they ought to be open and free to all His Majesty's subjects. This Bill does something to assist poor people in cases which affect their liberty and possibly their lives, and as such it is a step in advance, but it is a very small step. A leaf might have been taken out of the old Scottish Statute and the scope of the Measure enlarged so as to include all civil cases.
§ Mr. EDE
We have heard several speeches from members of the legal profession this morning. I shall speak for a few moments as one of those country magistrates who Sometimes wish that members of the legal profession were not allowed to practice before them, because just when a magistrate thinks he has grasped the justice of a case, one of the legal profession comes along to explain what the law is. I offer the Bill my most cordial support, and only regret that it does not go farther in some respects, but I desire to put one or two points which in my experience as a magistrate seem to call for some comment. I see that it is proposed to make the chairman or the deputy-chairman the certifying authority at Quarter Sessions. I would urge upon the promoters of the Bill and the Home 1452 Office that by the expressed decision of this House, when the Criminal Justice Bill was being passed, chairmen of quarter sessions stand in a relationship to the court different from that of a judge. Some years ago I served under a chairman whom I and a majority of the Bench had come to regard as a very reactionary and out-of-date chairman; but once a chairman is elected he seems to go on, in spite of deafness, blindness and all physical infirmities, until he either chooses to resign or death removes him from the obstruction of justice. With such a chairman I can well imagine that in some cases it might be difficult to get a certificate, although the majority of the magistrates would think that legal assistance ought to be given to the prisoner. That decision is not, however, to be within the jurisdiction of the magistrates attending the court, but is left to the chairman or the deputy-chairman.
It would not be enlarging the scope of the Measure if it were altered to say that a certificate could be given by the court, if they thought fit, in cases where the chairman had declined to grant it. I admit that these may be exceptional cases, but we desire that justice shall be secured for everybody, and when we are amending the law it is as well to take exceptional cases into consideration. The Criminal Justice Bill as it was introduced to this House proposed that the appointment of chairmen to quarter sessions should be subject to approval by His Majesty's Secretary of State, but by the curious interworking of the medieval mind of Sir Henry Slesser and the puckishness of my right hon. and gallant Friend the Member for Newcastle-under-Lyme (Colonel Wedgwood), that provision was removed from the Bill, and magistrates are entitled to elect their own chairman and can choose any of their number quite irrespective of his legal training. I remember a famous chairman of my own quarter sessions who said that he did not sit there as one of Her Majesty's—as it was then—counsel learned in the law, but as an ordinary country gentleman pursuing part of the ordinary task that falls to the lot of a country gentleman.
Next, I desire to deal with a point arising under Clause 2. As a magistrate who attends fairly regularly to his duties 1453 in a court of summary jurisdiction, I welcome the power to provide a solicitor to conduct a case there. I am not so sure as the hon. Member for Flint (Mr. Llewellyn-Jones) is correct in stating that the fact that a case is a first offence will in itself entitle the person to legal aid. The Clause says:by reason of the gravity of the charge or of exceptional circumstances.Those seem very loose words if they are intended to cover the case of a first offender; hut I welcome the Clause, because I believe that in the courts of summary jurisdiction, as elsewhere, it is essential not only that justice should be done but that it should appear to be done. What is the position of the justices in a court of summary jurisdiction when a person who is accused before them proves himself incapable of conducting his defence as a result of nervousness, lack of education, or some other cause? It is obviously the duty of the magistrate to see that the point of view of the accused gets in front of himself and his colleagues on the bench, and he frequently feels it his duty to put questions that the prisoner himself has been striving to put, but is not capable of putting, with the result that the other side gets the opinion that the bench itself has already taken sides before the case has been completed. I suggest that it will be very valuable, in helping to impress upon people that justice is not only being done but appears to be done, to pass this particular Clause into law. I would like to see the Clause extended. I feel that it is impossible in the present Bill, but I would like it extended to the case of the landlord and tenant, so that tenants, who are now protected, it is true, by certain Statutes of this House and by Parliament in the enjoyment of their premises, may have legal aid so that they may properly present to the court the particular grounds which they have for resisting ejection. It is always admitted when this most extraordinary Act comes before the House how complicated it is, and I think that leading counsel must find it remunerative. I hope the case of landlord and tenant may be brought into the scope of the Bill.
I heard with great regret the closing remarks of the hon. Member for Eastbourne (Mr. Marjoribanks), because, as I understand it, this Bill 1454 is a non-party Measure, promoted and supported by every party in the House. I was invited, when previously a Member of this House, and also when I rejoined it, to be a member of the Penal Law Reform Committee, and there was no question there of asking any party to bring this Measure forward. The committee have not thought it fit to ask any members of the largest party in the House to put their names on the back of the Bill. I think that ought to be stated, although I am sure there is no desire on the part of any party to reap any temporary or party advantage through claiming to be the authors of a measure that carries out ideas that many of us have held for many years. One can only regret the slowness of the pace at which legislation moves in giving assistance to poor people in the courts. Here we are, as the poet Lowell says:—Haggling with prejudice for penny worthsOf that reform which our hard toil will makeThe common birthright of the years to come.
§ Dr. PETERS
I have no intention of keeping the House in order that I might raise the question of any of the legal difficulties, but I am one of those poor lawyers who practice and have had considerable experience with regard to the class of case mentioned in this House, and for seven years I was an official of the court. I should like, first of all, to say to one hon. Member, not now present, that lawyers have hearts. Personally, I have given for many years at least one, and sometimes two, days a week to helping poor persons to take their cases before the court, and I am glad to-day that there is so much agreement with regard to this Bill, which is going to go a long way towards helping to put right what has been wrong during the last 20 to 25 years. There is one point I should like to address to the Home Office, and it is a practical one, and I hope that attention will be paid to it, because it deals with a field which this Bill does not cover. We practising solicitors know that the law societies of the various towns and counties are asked from time to time to consider the cases of poor persons under the Poor Persons Rule, and I would suggest, very seriously, that one easy way of getting over the difficulty of bringing any appeal cases within the 1455 scope of this Bill would be to consider referring the case to the law societies of the respective districts and asking them to certify whether it was a genuine case for appeal or whether it was merely frivolous. In that way, I am certain you would be able to extend the scope of this Bill so as to cover appeals, and without casting an enormous lot of expense on the country.
The other point arises under Clause 2, Subsection 3 (a and b). It has been pointed out that under Paragraph 1 (b) there is merely provision given for the defence certificate to be signed while under Paragraph (a) it simply says it shall be given. Although I do not wish to suggest bringing in any Amendment, I do suggest that it might have been better for poor persons appearing in our magistrates' courts especially, if the magistrates had been directed by Act of Parliament, and I hope that this Bill will become an Act of Parliament, to grant a defence certificate in the numerous cases coming under this sub-section.
I should like to say that there are other cases which this House should endeavour, on another date, to bring within the scope of a further Bill. As one who has practiced in the courts for a number of years, I am astonished by the many cases where both men and women are charged with more or less serious offences, and it is absolutely important for them to make every effort to appeal, to bring them within the scope of the inquiry. I do urge that those who have been responsible for the Bill and who take the credit for it will not be content, but will go on with their inquiry and see how much farther they can enlarge the scope of the legislation, so that it may be really said of this country that there is one law for the rich and the poor.
§ Mr. LANG
The speeches this morning, and the sympathetic pronouncement made by that enlightened right hon. Gentleman who is the present Home Secretary, have made much that I might have said unnecessary. I should like to congratulate the hon. Member for Thirsk and Malton (Mr. Turton) upon his success with the Bill, and we can congratulate ourselves that his success has meant the introduction of this important instalment of justice.
1456 The speech in which he introduced the Bill was, if I may say so, one which did very great service to the cause that so many of us have at heart. Much has been said this morning about the difficulty of poor persons who suddenly find themselves confronted with the arm of the law, and anyone who has come in frequent contact with people suffering from any kind of shock—the shock of bereavement, the shock of great catastrophe, or the shock of arrest or sudden charge—knows that in such circumstances people may not only not find the right thing to say but may positively say the wrong thing. Again and again I have heard judges at assizes and at the Central Criminal Court having to tell juries something like this, that accused persons, quite innocent, are so frightened of being wrongly convicted that they have endeavoured to improve their defence by telling untruths or manufacturing all sorts of excuses. Much of that arises from the fact that people are dazed and shocked when they suddenly find themselves charged with serious offences. Therefore, I am extremely glad that the Bill contains a Clause referring to courts of summary jurisdiction, and I hope that at some early date that may be extended, because there still are magistrates who, in the words of one of them, take it upon themselves to tamper with justice and mercy, and there are still magistrates' clerks who take it upon themselves to rule the courts.
Another thing which I think ought to help us in coming to a favourable decision on this Bill is the way in which from time to time extraordinary cases occur which arouse great public comment and great public sympathy. We had one such case last year in which a charge of murder created such a public outcry that a very large sum was subscribed in order that eminent counsel might be engaged. I should be the last person in the world to desire in any way to check the flow of public generosity or to hold back public interest in the cases of persons, and especially lonely poor persons, accused of such crimes as murder. But there is a dangerous side to that. There is a side of maudlin sentiment, a side of morbid sentiment, and there is the danger that in such cases people will subscribe not so much for the purpose of defending the 1457 person concerned as for the sake of interest in the case or the thrill of the actual trial. I believe that such provisions as those of this Bill will go a long way to prevent that sort of thing. We do not want maudlin sentiment, although we must have a proper sentiment of justice.
I feel, too, that justice is never so secure as when there is no room left for any legitimate grievance. Of course we shall never all agree with the decisions of juries and the sentences of judges, and no one, I imagine, would pretend that justice is infallible, but there ought to be no legitimate grievance. As long as any accused person feels that he has 'a real grievance against the administration of justice, so long justice is not secure. Those of us who, like myself, would desire to go a great deal further than will be possible under this Bill, do not desire, in supporting a Measure of this kind, to abolish justice or make the detection of crime more difficult, but we do desire to abolish anomalies. I am not one of those who believe that there is one law for the rich and another for the poor, but I know that in law there are great advantages which rich people can get and which poor people are not able to get.
May I in that connection refer to a trial at which I was present, which created very great comment at the time, and which best illustrates my case—the trial of Dr. Crippen for murder some few years ago, I think about 1910? That was a bad case, I think, of murder, and a very able defence was put forward by a learned counsel who is now a judge of the County Court. But what I then felt and still feel to have been the fundamental difference between the prosecution and the defence was this: It was essential for the prosecution's case that there should be available absolutely the last word in expert medical and scientific evidence. I am extremely glad that it was available. I do not think that anybody who sat through that case, painful as it had to be, could go away with other than a profound feeling of gratitude for the brilliant medical science which enabled men to build up from a couple of fragments of pyjamas and one or two pieces of flesh and skin a remarkable and unshakable case, as I felt, for the prosecution. Another thing that was 1458 important for the prosecution was the bringing from America of a man who had been mentioned in some illicit connection with the deceased woman. One was thankful that it was possible to bring in this necessary evidence in order that justice might be vindicated. But what one felt, and what I have always felt, is that if the defence had had the same necessity for similar first-class expert evidence, if the defence had needed to send at once to America, Asia or any other place for essential witnesses to prove their case, it could not be done. It is not only the question of providing legal assistance; in practice it is a question of the ability of the defence to get at all the evidence required.
I feel that it is the duty of those of us who have regard for the liberty of the subject to be as concerned that innocent people may be acquitted as that guilty people may be brought to justice. I welcome this Measure as an instalment of what I hope is presently to be a very definite piece of legislation, either in the form of a new Ministry of Justice altogether or by the establishment of some office of Public Defender similar to the office of Public Prosecutor which we now have. Justice is essential; we all uphold it; we all desire to see it enthroned and enshrined in the hearts and lives of our people. It will only reach that stage when there is no further legitimate complaint against its administration and when the poorest person, no matter how guilty or how innocent he may be, will have the same access to witnesses and evidence and the same opportunity of testing the law as is now possible for those who can engage the best brains that can be provided.
§ Mr. CARTER
There is one point to which I should like to draw the attention of the Home Office, and that is with regard to persons who have been arrested being kept for days or weeks in custody and afterwards receiving no compensation or recompense. I know the difficulties attendant upon appearing in court. The atmosphere of the court is such that it affects not only those who are arrested and placed in the dock but those who for the first time have to appear with them. I have had that experience, and I also know from the other side as a magistrate that our colleagues sitting on the bench think that those who 1459 appear on the other side of the bench ought to feel as comfortable as we feel on our side. It cannot, however, be so; the atmosphere of the court does affect those who appear there for the first time.
I want to draw the attention of the House to a case which has come to my notice and which I have placed before the Home Secretary, but without beneficial results to those for whom I have appealed. It is a case that was discussed in this House in the time of the late Government even during this year, the case of a young man who was coming home from Queensland. A murder had occurred in the backwoods; the description of the young man was sent over here; and when he arrived here he was arrested. For days he was under a cloud, and his parents—poor people, respectable people—had to sell part of their belongings to enable him to try to get legal defence. They did so, and he was released, it being found, after communication between the two Governments that he was wrongly arrested. What I want to bring home to the right hon. Gentleman is that, after all the anxiety of the parents and all the anxiety of the friends, as well as the legal expenses which amounted to over £20, when they appealed to the Home Office or to the Government for compensation, even to the extent of the cost of the legal defence, the Government could not see their way to grant any recompense or compensation for the arrest.
That is a case which I desire to bring before the Home Secretary, because there are many other similar cases where poor people are placed in the unfortunate position of having to sell their furniture or part of their home in order to help to provide legal defence. I think that the Home Office ought to look upon poor people who have to sell part of their belongings to meet legal expenses with more consideration and compassion. I know that some of our people say that there is one law for the rich and one for the poor. If you happen to be a major or somebody else you can take your case to court and get your £500 damages and so on, but the poor have to let the matter go by default and suffer. I welcome this Bill, because it gives an opportunity to poor people to get assistance for their defence at the first stage. It is in the first stage that the poor people require 1460 it. I would desire it to go further, but I am not going to press for that, because I feel that the Bill as it stands is anadvance on the law which is now on the Statute Book, and I welcome it. I do, however, appeal to the Home Office that when the poor are found in these circumstances when they have to sell their home or part of their home in order to provide legal expenses the Government should at least recompense or compensate them if they are found to be innocent.
§ Question put, and agreed to.
§ Bill read a Second time, and committed to a Standing Committee.