HL Deb 26 February 1855 vol 136 cc1871-80

Order of the Day for the Second Reading read.


in moving the second reading of this Bill, said, it must be well known to their Lordships that for the last two or three years the subject of the trial of offenders for petty offences had much engrossed public attention. It had been felt, not without justice, that to commit for trial at the assizes or sessions persons charged with very petty larcenies, had tended neither to reform the offender himself—which should be an important object in all punishment—nor to the repression of the offences. Several evils had resulted from it. In the first place, it occasioned to the public very unnecessary expense. He would put that question aside for the present—but when a prisoner was tried at the assizes, or at quarter sessions, for a petty larceny of the value of a shilling or two, the effect on the public mind was very injurious, exciting as it usually did a feeling, if not of sympathy for the prisoner, at all events of regret for the delay in bringing him to trial, and it would be infinitely better if such cases were disposed of in a summary way, as were many cognate offences. There was only one way to meet the difficulty, and that was, to enact that certain cases, which were now tried at the assizes or the sessions, should henceforth be tried in a comparatively private forum, namely, before justices of the peace sitting in petty sessions. That being so, the only question which remained was, what were the offences cognisance of which should be given to these petty sessions? What he proposed was, that they should have cognisance of all simple larcenies where the value of the property stolen did not exceed 20s. This limit would, of course, be open to their Lordships' consideration in Committee. Their Lordships were aware that in our ancient law distinctions were made between larcenies of small amount and larcenies of a large amount. From time immemorial, a theft of anything under 1s. was attended with different consequences from a theft of property worth more than 1s., which, at an early period, might be equal to 20s. of our own day. It might be asked, was it safe to give cognisance of such cases to justices assembled in petty sessions? He believed it was so. That occasional errors might arise was only saying that justices assembled in petty sessions were subject to the infirmities of human nature; but the Legislature had already given them jurisdiction in cases not dissimilar. At the present moment justices had cognisance of offences so entirely similar in their character that it required the acuteness of a lawyer to detect the difference between them. For instance, justices assembled in petty sessions had cognisance of cases of dog stealing. Now, legally, dog stealing was not stealing; but it would be absurd to maintain that persons competent to entertain cognisance of the stealing of a dog should not have cognisance of the stealing of a duck. Another analogy: justices had jurisdiction over the offence of breaking into a garden, there plucking from a tree all the valuable peaches growing upon it, and bringing them to Covent Garden Market; but if the peaches fell to the ground, and the person picked them up, the justices had no jurisdiction, because that was larceny. Now, what he proposed was, to give to justices jurisdiction in all cases of small larcenies, in the same way as they had at present jurisdiction over offences which did not amount to larceny. The next question was, to what extent should they have the power of punishing offenders? He did not think it would be expedient materially to limit the punishments to be inflicted by the justices—at any rate, not much—below those awarded at the sessions; otherwise he was afraid it would often happen that, in order to save the expense and trouble of sending cases to the sessions, the justices might be inclined to let a prisoner be punished too lightly, and he was not one of those who thought that very short terms of incarceration tended either to the reformation of the offender or to the repression of the offence. Therefore, he thought, considerable latitude should be given, and he proposed to fill the blank in the Bill with words authorising the justice to inflict a term of punishment not exceeding one year's imprisonment. There was another proposition in the Bill which was of a different character, and on which he entertained considerable doubt. It was proposed in the last Session in the other House of Parliament by an hon. Friend of his now no more (Mr. Aglionby) that if a person charged before the justices with a larceny amounting to a higher value than 20s. should wish to plead guilty he should be allowed to do so; in which case the justices might either sentence him themselves, or, if they thought fit they might remit the record of his plea to the assizes, at which sentence should be pronounced by the Judge. He had originally prepared this Bill in that sense; but, on consideration, he thought it went to an extent of complication that would, on the first introduction of the system at all events, have been productive of evil. The persons charged with such offences were of the very lowest class, and generally very ignorant. What was more likely than when they were brought to the sessions to receive sentence they would deny having pleaded guilty before the justices, demand to have their witnesses examined, and complain that they were not allowed a trial; and if they were precluded from doing so, it would be very difficult to convince them or to make them admit, or the public to understand, that they had not been treated with hardship. He proposed, therefore, to enable the justices, where a person pleaded guilty, although the value of the property stolen exceeded 20s., to pass sentence summarily.

Moved, That the Bill be now read 2a.


said, that, as the Bill which stood upon the Votes in his name—the Speedy Trial of Offenders Bill—related to the same subject as that introduced by the noble and learned Lord on the woolsack, he thought he should save time by taking both together. His Bill arose out of the petition which he pre- sented last Session from the Cumberland Magistrates. His learned friend and kinsman, the late Mr. Aglionby, had brought in a Bill which did not pass; and as he (Lord Brougham) had suggested that course on presenting the petition, he had felt it necessary now to present this Bill. The absolute necessity of some such measure had been frequently pressed upon him within the last few years. The state of the administration of the criminal law was such that a remedy could not much longer be delayed; and even the returns before Parliament were in themselves enough to show the necessity of some more summary treatment of petty offenders. They had obtained from six counties—Somerset, Sussex, Berkshire, Wiltshire, Hampshire, and Dorsetshire—with a population amounting to one-tenth of the whole population of England and Wales, a return in detail of the trials and punishments, and the amounts for which the offenders were tried, at the sessions for one year—1850; not an extraordinary year in any way. Out of 1,500 cases tried at the sessions, 895, or three-fifths of the whole number, were for larcenies under the amount of 5s.; 500, or one-third of the whole, were for larcenies under the amount of 1s.; 245, or one-sixth, for larcenies under the amount of 10d. Applying that proportion to the whole of England and Wales, it would appear that 9,000 cases were tried every year throughout the country for less than 5s., and 5,000 for less than 1s.; all cases, moreover, of simple larceny, without any aggravated circumstances. It was bad enough that the Lord Chief Justice should be called upon, when he went circuit, bearing the Queen's Commission, with all the pomp and circumstance of the highest judicial authority, to adjudicate solemnly with the help of grand and petty juries upon larcenies to the amount of 1d. or 2d.; it was bad enough that all the parties should be put to great and unnecessary expense, both of time and money; but the worst evil of all—it might indeed be called an evil that surpassed all the rest taken together—was, that persons were detained for many days, perhaps weeks, in prison; and when they came to be tried were either acquitted, after being punished more severely than they would have been had they been convicted; or they were convicted, and then it became impossible to award even an apparently just amount of punishment to them for the offence of which they had been found guilty, because the Judge would feel that they had already undergone, secretly and unknown to the public, a greater punishment than was due to them upon their conviction; and the consequence was, that often people saw with surprise that for an offence which properly deserved a greater punishment, a prisoner was dismissed with a day's imprisonment. It happened to the Lord Chief Justice, during the last spring assizes for Buckinghamshire, to have fifteen prisoners to try, all of whom had been committed for two months. What did their Lordships think was the value of the property which these persons were charged with stealing, and for which they had been so committed? The whole amount was 12s., or an average for each of 10d. What was the consequence? The Chief Justice had only one course to take—he dismissed each of them as he was found guilty with one day's imprisonment. The reason why they had been detained so long in prison was, that there had been no adjourned sessions opened between the period of their commitment and the period of holding the assizes. That being the state of things, it was perfectly evident that some step must be taken for the more rapid and summary trial of these petty offenders. The Bill which he presented to their Lordships a fortnight or three weeks ago (the Speedy Trial of Offenders Bill), was very much the same as that subsequently introduced by his noble and learned Friend on the woolsack, although in one or two particulars there was no doubt a difference. The amount for which offenders could be tried before the justices in petty sessions, 20s., was the same in both measures. One particular in which they differed was, the definition of the offences over which the justices should have jurisdiction, because in his Bill he excluded all offences which were attended with aggravating circumstances, which were specified; but the most material difference was, the option given to parties brought before magistrates in petty sessions of being either tried there, or having their cases transferred to the quarter sessions or the assizes. His Bill gave them that option, and he thought it was better to do so, because—although no man could be more sensible than he was of the admirable and judicious manner in which the magistrates in all parts of the country had discharged their very important duties; nevertheless, the subject ought not to be excluded from trial by jury without his consent. He would add his opinion, that it would be desirable to give them, when they desired it, the power to obtain professional assistance. They had the power of choosing county court judges as chairmen, but they hardly ever exercised it. This power was also possessed by the Irish magistracy. And in that country the assistant barrister was almost always chosen as the chairman of quarter sessions. In the Bill introduced by Sir John Pakington in 1851, it was proposed to give magistrates summary jurisdiction when property to the amount of not more than 1s. was in question. He (Lord Brougham) thought that sum was too low. Perhaps 20s. might, on the other hand, be by some deemed too high in fixing the limit; but he felt sure that this summary jurisdiction should, at any rate, extend to cases where thefts of property of the value of 5s. had been committed. Even, however, if the summary jurisdiction only extended to cases where property to the amount of 1s. was in question, it would be a great improvement in our criminal law, from the number of the cases in which men were now punished for stealing to a less amount. In 1849, three men, each approaching seventy years of age, were tried at different sessions in a county, the name of which he would not mention. One was sentenced to six weeks' imprisoment, with hard labour, for stealing to the value of about 1d.; another to eight weeks' imprisonment, with hard labour, for stealing to the value of ½d.; and a third to four weeks, with hard labour, for stealing to the value of ¼d. Nor had he reason to believe that there was any aggravating circumstances in their cases. He knew, indeed, of another case, in a different county, in which a man in his seventieth year was sentenced to twelve months' imprisonment, with hard labour, for stealing to the amount of 3d. But he assumed that in this case there must have been aggravating circumstances. If such sentences were passed at quarter sessions, it obviously became the more necessary to give the parties who came before the petty sessions the option of being tried there or at the quarter sessions, where, it was to be hoped, the justices would avail themselves of the option of procuring professional aid given to them by this Bill; for he felt persuaded that in no court, presided over by a lawyer experienced in criminal jurisprudence, would it have been possible for a man to be sent to the treadmill for stealing to the value of one farthing. There was one other respect in which his noble and learned Friend's Bill materially differed from his (Lord Brougham's). His noble and learned Friend proposed to confer the summary jurisdiction in question upon magistrates sitting at petty sessions, upon police magistrates and stipendiary magistrates individually, and also upon the Lord Mayor of London and the sitting Alderman individually. Now, he must decidedly object to give the Lord Mayor or the sitting Alderman a summary jurisdiction, severally, and not in petty sessions, to the extent of pronouncing, according to the noble and learned Lord's Bill, a sentence of two years' imprisonment and hard labour. These magistrates, sitting under the charter of the City of London, were wholly irresponsible to the Secretary of State, and the consequence was, that a system which led to the grossest abuses prevailed in their courts—that of going to ask advice of the sitting Alderman in cases where he had not the shadow of jurisdiction. Why, in one case a man actually went before the Aldermen to seek advice as to the manner in which he was to get possession of Alnwick and the other magnificent estates of the Duke of Northumberland, to which he alleged that he had a claim; and, instead of at once saying to him, "Leave the court, you have no business to come here with your tale," the magistrate chose to entertain it. He did not, indeed, proceed to try an action of ejectment for the recovery of the estates, but he did the thing which was next in absurdity, and was not, perhaps, quite so harmless. He said, "Let a letter be written to the Duke, and let it be sealed with the broad seal of the City." Whether that alarmed his noble Friend he did not know, but, at any rate, it had not the effect of making him give up possession of his estates. In another case, which he would mention as an illustration of the same evil, the sitting magistrate made himself the vehicle of circulating a wholly unfounded statement, that two Members of that House—two of the most honourable men who ever existed—had defrauded a poor woman out of the sum of 35s. a week, which they ought to have paid her under a trust. On these noble persons were cast imputations which were circulated all over the world as the comments of the Lord Mayor upon their illegal and oppressive conduct, whereas had they been aware of the complaint, they would have given the decisive answer that they were intrusted with the alms demanded, upon express condition of never advancing above 35s. at any one time. If such a case as either of these had happened with a magistrate who was removable he would not have the opportunity of committing the same egregious folly a second time, because he would have ceased to be a magistrate as soon as he had committed the first offence. In fact, the same course of giving advice used to prevail in the police courts of the metropolis. Not, indeed, that the absurdity was carried to any such extent as in the cases to which he had referred, because, as the presiding magistrates had been lawyers, they immediately told persons who came to them about such matters that they had no jurisdiction. Still the fact that ex parte statements of the most injurious character to the persons assailed were by this means circulated through the press was a grievance of a serious character, and one that called imperatively for a remedy; and accordingly, when Lord Melbourne was Secretary of State for the Home Department he told the different police magistrates that the practice of giving advice or of entertaining applications for assistance in cases out of their jurisdiction must altogether cease. Of course such a notice was effectual; but it would have been of no use to make a similar communication to the City magistrates, since they Were corporation justices sitting under a charter, and would, therefore, have laughed at the interference of the Government. For these and for other reasons, therefore, he was of opinion that the summary jurisdiction should not be extended further than he (Lord Brougham) had proposed; and that it should not be exercised by the Lord Mayor or by one Alderman singly. The noble and learned Lord, in conclusion, acknowledged the many valuable communications on this subject which he had received since he introduced his Bill on this subject from magistrates and professional men throughout the country, and particularly from the Society of Justices' Clerks. He had given his most careful consideration to their suggestions, which would, of course, be submitted to the Committee, who would no doubt give due regard to them.


said, as he was about to go upon circuit for the purpose of administering justice in the provinces, he could not help saying that he should feel great satisfaction in stating to the grand juries and magistrates whom he should have the honour to address, that such a measure was before their Lordships with a prospect of becoming law. Their Lordships could hardly form an idea of the anxiety which prevailed on the subject to which this Bill related. He had remonstrated with magistrates for not holding sessions more than four times a year. The reply was that they were not bound to meet oftener, and that their reason for not meeting more frequently than they did in private was that they wished an evil of such magnitude to work its own cure. It was deeply to be regretted that in the middle of the nineteenth century such an evil should prevail. When he visited Scotland he witnessed a very different system. There the sheriff and his deputy tried all cases with great expedition, and there was no cause of complaint. It was absurd to make such a distinction as was made between trespass and felony. If a man went with a waggon to a field, and cut down and carried away a load of wheat, that would be only trespass, and the case would come before quarter sessions; but if he stole a single sheep, his offence would be felony, and he must then be tried at the assizes. He was exceedingly glad to find that this measure was received with approbation in that House, believing, as he did, that it would prove very beneficial to the community. He thought there should be no forfeiture of goods in cases of summary conviction. He could not sit down without bearing his testimony in favour of the unpaid magistrates. In his opinion they administered justice in petty sessions most purely, and much to the benefit of the public. Formerly the squire sat in his hall, having his gamekeeper for his clerk, and in that position he convicted the poacher. That was a proceeding in familiâ, not in curiâ.


felt some alarm at the power which would be given to magistrates by this Bill of punishing persons who might plead guilty to the commission of comparatively trivial offences by imprisonment with hard labour for the period of two years. He certainly considered that so severe a punishment ought not to be inflicted without affording prisoners the opportunity of trial by a jury. The Bill proposed to give to magistrates at petty sessions a jurisdiction which, it was said, had been greatly abused by many magistrates at quarter sessions. The quarter sessions were constituted by a general collection of the magistrates who sat in petty sessions, and if these magistrates were not to be trusted at quarter sessions, where they transacted business under the eye, as it were, of the whole county, how were they to be trusted when, divided into small sections, they sat in petty sessions, although in open court? He thought they should be careful in committing such extensive powers to magistrates in petty sessions, where there was not the same advantage of publicity as at quarter sessions. He did not mean to oppose the Bill, but he thought the objections which had been suggested ought to be carefully considered.


referring to what had fallen from another noble and learned Lord with reference to the Scotch system, remarked that the sheriff and his deputy in that country had the advantage of being assisted by a public prosecutor, an officer whom he hoped we should before long have in England.


said, that while sitting as a magistrate in Ireland he had often felt the greatest difficulty in sending men for trial at the quarter sessions or assizes for trivial offences, such as stealing turnips and the like; and he, therefore, hoped that the operation of this measure would be extended to Ireland instead of being, as now proposed, confined simply to England.


having briefly replied,

Motion agreed to; Bill read 2a accordingly; and committed to a Committee of the whole House accordingly.

House adjourned till To-morrow.