HL Deb 09 July 1835 vol 29 cc352-4
Lord Brougham

moved the second reading of the Certiorari Bill. He said that he had been requested by his noble and learned Friend to take charge of the Bill during his absence. As this was the proper stage for the discussion of the principle of the Bill, he should state, for the information of such of their Lordships as had not been present on the former occasion, what the law now was, and what were the alterations proposed to be introduced by the present Bill. At present the prosecutor of an indictment could remove it, as a matter of course by a certiorari; the consequence of which was, the record of the indictment was carried from the inferior jurisdiction into the Court of King's Bench, and became a record of that Court; and instead of being tried by Magistrates at the Quarter Sessions of the county, it was tried by one of the learned Judges at the Assizes, or by writ of Nisi Prius in the Court of King's Bench itself. The prosecutor had this advantage, that he might take this step as a matter of right, and without giving any opportunity to the other party to resist the removal of the indictment. One of the consequences of this however was, that great delay might be occasioned, and the indictment might be kept hanging over the head of the defendant for a very considerable period; and another was, that considerably increased costs were incurred, though for this latter disadvantage the Court possessed the power of affording the defendant some remedy by making the prosecutor liable for the increased costs. The first remedy that the Bill proposed for the evils of the present system, was to put an end to the right of the prosecutor to remove the indictment as a matter of course. The defendant had no such right; if he wished to remove the indictment he must satisfy the Court that there were points of law which could not satisfactorily be decided before the justices at sessions, or that there was some other sufficient cause why the proceedings should be removed. Upon the subject of the removal of indictments there was a statute passed in the reign of William and Mary, regulating the proceedings thereon, and limiting the recognisances to be given by the defendant to the sum of 20l. so that this mischief often happened, that a defendant escaped altogether from justice. Preparatory to his being put upon his trial, on a bill found against him at the sessions, a defendant might be bailed, and the committing Magistrate had the power of ordering a defendant to find bail, himself in the sum of 200l. and two sureties in the sum of 100l. for his appearance. The moment he removed the indictment, the Statute of William and Mary applied, and the bail was limited to 20l. The original recognisances were vacated by the grant of the certiorari, so that instead of the Court having a tie upon the defendant to the amount of 400l., under circumstances where the Court ought to have a greater tie upon him than ever, the amount of security he gave was only 60l. He had some doubts in his own mind whether, even as the law now stood, the Court might not, when the indictment was removed by him, impose on him certain conditions, in the same manner as the Court could impose on the prosecutor conditions as to costs. However, it was better to mate the law certain in this respect, and exactly to define the powers of the Court. The great defect in the law upon the subject had not escaped the observation of the learned Commissioners appointed to examine into the state of the law. It was now proposed that the Bill should be read a second time, and his noble and learned Friend (Lord Denman) proposed to move certain amendments in Committee; that the Bill should be printed with the amendments, and, further considered, with a view of incorporating in it the recommendations of the Law Commissioners.

The Duke of Richmond

offered his best thanks to the noble and learned Lord who had just spoken, and to the noble and learned Lord now absent, for having so promptly taken into consideration the suggestions he had ventured to make. He hoped that he should not be thought to be asking too much, if he expressed a wish that the Bill might be extended to the practice of taking bail in other cases. By one of those Acts which were known as Peel's Acts, the Magistrates had not the power of bailing, unless there was some doubt of the party's guilt. The effect of this was, that if a man was brought before a Magistrate charged with some small offence, he must be sent to gaol, and kept there, though the Magistrate would otherwise be willing, if the law allowed him, to take bail for the offender's appearance. The object of taking bail was to have a security for the appearance of the offender. There could be none of their Lordships who had not observed the increase of juvenile offenders of late years, and the increase of prosecutions since the costs of them had been paid out of the county-rates. On last Thursday he was at the Quarter Sessions of Sussex, where there were eighteen prisoners. One of the cases was that of two lads who had stolen three mackarel, value 9d. The Magistrate was obliged to send these lads for a considerable time to prison before trial, because he had not the power to take bail. He wished that power should be granted to the Magistrate to take security for the party's appearance if he thought fit. Another of these eighteen cases was that of two lads who were indicted for stealing one or two gallons of their master's cider. They broke open the door of the cellar, which constituted the felony. The prosecutor, in a moment of irritation, took them before a Magistrate. The lads got drunk with the cider, and they told their master what they had done, but he having taken them before a Magistrate, the latter was obliged to send them to gaol. His object was not to permit a man to be kept in prison if his attendance could be secured by other means; he, therefore, suggested whether it would not be expedient to extend the power in Peel's Acts so as to enable the Magistrates to take bail in cases of felony. At present the man who made the best atonement in his power, by confessing what he had done, and expressing his regret for it, was in a worse situation than the rascal who denied his guilt to the last moment. He wished to alter this system.

The Bill read a second time.