Lords Sitting of 1 July 1835

MINUTES.
Bill. Read a third time:—Dominica Relief.
Petitions presented. By the Earl of VERULAM, from several Parishes in Hertfordshire, against being united with Hitchen under the Poor-Law Amendment Act.—By Lord YARBOROUGH, from Bendbridge, for an Alteration in the Smuggling Law.

WRIT OF CERTIORARI—BAIL.
The Duke of Richmondwished to ask his noble and learned Friend on the Woolsack, whether it was not desirable that the law should be amended with respect to the removal of indictments from inferior Courts into the Court of King's Bench, so far as related to the taking of bail on such removals. When a man was indicted at the Quarter-sessions, and the Magistrates took bail for his appearance, they might, according to the rank in life of the offender, and according to the nature of the offence, require bail from him to the amount of 300 l. or 500 l. If that very indictment was removed by Certiorari, he believed that it was the practice of the Court of King's Bench—and, as he understood, the practice was regulated by Statute—to call on him to give bail for only 20 l. or 30 l. It seemed to him that that practice was most objectionable; for it gave a great advantage to the rich man, and afforded him the opportunity of leaving the country; for though the Magistrates might have bound him by a sum sufficient to secure his appearance, he might, by going to the small expense of removing the case by Certiorari, get his bail diminished in amount to a very small sum, and might then afford to go off, and pay his sureties for the loss they had incurred. He wished to ask his noble and learned Friend whether this law did not require alteration, and if so, whether it would not be proper to insert the alteration in the Bill relating to prisons, now before their Lordships.
Lord Denmansaid, that in his judgment, the alteration suggested by the noble Duke would be a great improvement. Under the present law there had been great evasion of public justice on account of the smallness of the sum required for bail on the removal of an indictment by Certiorari, since in such a case it was obvious that a person charged with any heavy offence, and who felt a consciousness of guilt, being aware of so light a penalty beingattached to hisevasion, would be almost sure to incur that forfeiture and fly the country; and in late years there

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had been one or two examples of heinous offenders adopting such a course. With respect to cases to be tried at the assizes, the Magistrates, in the first instance, usually required 50 l. bail, and the Judges of the Court of King's Bench afterwards exercised their discretion, and increased the amount as they deemed it necessary. They ought to have the same power in cases of indictments removed by Certiorari from the Sessions, so as to proportion the amount of the bail to the nature of the offence and the probability of the conviction. They had not, however, any such power. He approved of the proposed alteration, and he did not think that the Prison Discipline Bill would be an improper occasion to introduce a matter so much connected with the administration of the justice of the country. Perhaps, however, this matter might not be fully considered on this hasty discussion, and other points of view relating to it might be presented to their Lordships. He did not think that that was likely to be the case in the present instance, but if the noble Duke inserted the Clause in the Bill, he would do all in his power to make it fully known to those noble Lords who were likely to take part in such a discussion.
Lord Broughamquite agreed that the proposed alteration, or something like it, should be made. The Question was, how far in cases of motions for Certiorari the Court should have the discretion to refuse or to grant them. A prosecutor might now remove an indictment as a matter of right, but the defendant could not do so without showing that he had good grounds for making the application. He did not see why the Court should not be able to grant or refuse a Certiorari to either party under peculiar circumstances, and with the view of enabling the Court to impose terms on the party.
Lord Denmansaid, that the matter just referred to by his noble and learned Friend showed how many points might arise on a discussion of this sort, and how much the subject required to be treated with due consideration. It was true that a prosecutor might remove an indictment as a matter of course. He thought that that practice should be altered, for, as it now existed, great injustice might be committed, for a defendant might have his witnesses ready at the Sessions, and just as he was going to trial, the prosecutor might lay a Certiorari on the Table, and
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put off the trial for an indefinite period, and at great expense and inconvenience to the other side. Perhaps the two matters together were sufficiently important to form the subject of a separate Bill. The Judges of the Court of King's Bench had lately been considering whether they could not make a rule on the subject, but they had some doubt how the purpose they had in view could be fully effected by a rule. It could be fully effected by an Act of Parliament.
Lord Broughamsaid, that the Court of King's Bench was not wholly deprived of discretion in those cases, for even after a Certiorari had been granted if the Court saw reason to believe that it had been obtained for the purpose of oppression it might stay the proceedings, and so defeat the object of the party obtaining it.
The Duke of Richmondobserved, that his intention had been limited to drawing the attention of the law Lords to this important subject. He believed that the present practice was productive of much injustice, for he knew a case where a defendant charged with an indecent exposure had, by the order of the Magistrate, found security for 500 l., but he removed by Certiorari, and in the Court of King's Bench he gave only the statutable security of 20 l.,whereupon he fled the country and avoided justice.
The Subject dropped.