PRISONERS' COUNSEL. (Hansard, 15 July 1836)

§ The Duke of Richmond
, in rising to move the re-insertion of the 4th Clause, (giving to prisoners the right to require copies of depositions taken before a magistrate) said, he would not trouble the House by going over again the arguments which he had upon a former occasion urged in support of that provision of the Bill. It was the opinion of the Attorney and Solicitor-General, Sir William Follett, and many other of the most distinguished lawyers in this country, that prisoners should have the power of inspecting copies of depositions made against them. He (the Duke of Richmond) asked their Lordships to re-insert this clause as an act of justice to the prisoners; for he contended that without it they could not have a fair trial. There would be this injustice done if this clause were not re-inserted in the Bill;—a clever person, one, perhaps, who had been often before in Courts of Justice, would be able to remember what was sworn against him; whereas, the inexperienced—the ignorant—perhaps, the innocent, prisoner, who probably never be- 229 fore was brought before a magistrate, confounded by the danger and disgrace attending his situation, and unaccustomed to the forms of law, would be unable to follow the depositions as they were read, so as to recollect what was necessary, in order to enable him to instruct his counsel or attorney fully and properly. The hardened offender would thus, in fact, gain a great advantage over the innocent prisoner. Nor was this all, the final omission of the 4th Clause from this Bill would do the poor great injustice. A person able to pay an attorney, might employ him to attend and take notes of the depositions as they were read. The poor, on the other hand, would be left to their own unaided recollection, which would probably very little, if at all, assist them. He (the Duke of Richmond) should move, without detaining their Lordships further, that the 4th Clause be reinserted in the Bill.

§ Lord Abinger
objected to this clause. It empowered a prisoner to claim copies of depositions from the person in whose care and custody they were. Now, in many cases, the judges held them in their possession; they were returned to the judges by the clerk. Was the judge to be bound, at the prayer of any prisoner, to take copies of any deposition? That was impossible. He had enough to do, as it was, to read them. Was he to employ clerks for the purpose? What provision was made in the Bill for their remuneration? He (Lord Abinger) did not see how this clause was to be carried into effect. Did not the noble Duke know, that as the law now stood, further evidence was often procured after a prisoner was committed. The magistrate was authorised to commit on prima facie evidence; and if, after committal, fresh proof should be adduced, who ever heard of the magistrate's clerk being compelled to send to the prisoner copies of any depositions that might be sworn against him in his absence. If the prisoner was allowed to inspect copies of all depositions taken against him, he would be enabled between the time of his committal and trial, in many cases, by the aid of those persons who are always ready, for pecuniary remuneration, to swear to any facts, to concoct a defence which might defeat the ends of justice by contradicting some facts deposed to by the prosecutors. A case of this kind indeed came under his 230 own notice not long ago in the Court of Exchequer. He (Lord Abinger) did not see upon what principle this clause was to be re-inserted. In civil suits defendants were not allowed to inspect copies of all depositions filed against them. He did not see in what way the clause was to be carried into effect when admitted, and he should, therefore, oppose the motion of the noble Duke.

§ The Duke of Richmond
was perfectly astonished at what the noble Baron had just said as to depositions being taken after the committal of prisoners. What! evidence taken against a man in his absence! He (the Duke of Richmond) never heard of such a thing! It was contrary to any principle of British law! As to what the noble Baron had said respecting the impropriety of giving this power to prisoners, because they would be thereby enabled to concoct defences which would defeat the ends of justice,—did not the noble Baron know that at the present moment a prisoner's attorney was at liberty to take notes of the depositions, and was perfectly as able to make an unfair use of them as he would be under this clause? The only difference was, that this clause extended to the poor a power and advantage already possessed by those who were able to fee a professional man.

§ Lord Wynford
The object of the Bill professedly was, to do justice to the prisoner. By inserting this clause, however, their Lordships would, in his opinion, be doing more than justice required. They would be placing prisoners in a better situation than defendants in civil suits, and they would be enabling prisoners, as suggested by his noble and learned Friend (Lord Abinger), to get up defences which would defeat the ends of justice, and to gain acquittals to which they were not entitled, by the assistance of those low and disreputable attornies who were always ready to enter into such disgraceful proceedings. He should therefore vote against the reinsertion of this clause.

The Earl of Radnor
should support the clause. The argument of the noble and learned Lord opposite (Wynford) was inconsistent with his former argument in Committee upon this clause. He then contended it was unnecessary, for that at present the prisoner always heard the depositions read to him before he was committed. Now his argument would go to the extent of preventing the prisoner from having any knowledge of what was sworn against him; 231 because to those who were able to employ an attorney to take notes, or to do so themselves, the same facilities were afforded for fraudulent defences which had been alluded to by two noble and learned Lords opposite, as would be afforded by this clause.

Lord Holland
. My Lords, if the law upon this point at present be as the noble Baron opposite has stated it to be, it is clear it ought not to be so any longer; it is quite contrary to the whole spirit of the British constitution, contrary to the genius of the English law,—contrary to the first principles of justice! My Lords, I must say, that through the whole of this discussion one great object to be considered in the administration of justice has been lost sight of. It is true, that one very important object is to arrive at truth. But there is another, little if at all inferior in importance: it is, that truth should be arrived at in a manner satisfactory to the public. And if in one case the truth be sought after in one mode, and in another case it be sought after in a different mode, be assured, my Lords, that the best mode, notwithstanding that the same result may be arrived at in both cases, is that which is most satisfactory to the public. These remarks, my Lords, though not perhaps immediately, are generally applicable to the particular clause before you. With respect to this clause there seems to be no real objection to it. There are, it is true, many objections started to it; but they are inconsistent, and destroy each other. One is, that it is unnecessary: another that it will be injurious; that it will give a prisoner more than he is justified in demanding. The objections, my Lords, are clearly incompatible with each other, and both coming from the same person, they are singularly inconsistent. Now applying the principle I have just laid down, that the truth will be arrived at by the best possible means when arrived at in the manner most satisfactory to the public, I am for re-inserting this clause, and thus assuring the public, that the prisoner, having had a full knowledge of the charges brought against him, the verdict, when given, was arrived at upon the best possible grounds, after the best possible consideration.

§ The Lord Chancellor
said, he quite agreed in the propriety of introducing some clause to obtain the object of the noble Duke; but as he did not consider this clause the best calculated to effect that object, he suggested that the passing of this Bill should be postponed, to give time for considering the subject fully, and fram- 232 ing some provision which might be free from objection. He must say the intimation which the noble and learned Lord (Abinger) had given as to the practice of magistrates, of taking evidence against a prisoner after his committal, had astonished him exceedingly. He could tell the noble and learned Lord, that if his account were true, those magistrates, who had acted as he had stated, had transgressed the line of their duty. It was no part of the duty of a magistrate to assist in getting up a prosecution. His duty was merely, upon primâ facie evidence to secure a prisoner's person against the day of trial. The question for the magistrate to decide, is only whether he is justified, on the evidence brought before him, in committing the prisoner. That question once decided his jurisdiction ceases. He could conceive nothing more injurious to the right administration of justice, than the practice alluded to by the noble and learned Lord. If it really existed, it was high time that it was put an end to; and it formed an additional reason for enacting some such provision as the clause now proposed to be re-inserted.

The Earl of Shaftesbury
having suggested that the proper proceeding would be to adjourn the debate,

§ The Duke of Richmond
, in moving, that the debate be adjourned, expressed his opinion that the practice which had been alluded to of taking depositions against a prisoner in his absence was more fitted for the meridian of Spain than to that of this free country.