CRIMINAL PROCEDURE. (Hansard, 30 March 1855)

LORD BROUGHAM
rose to call the attention of the House to the Resolutions he had laid upon the table, and to the adjourned debate of the 23rd and 26th instant, in reference to Criminal Procedure. The more he considered the subject the more he remained of opinion that the course to be taken was the one he had then glanced at—to ask for a Commission to consider the whole subject. It had been found that this course of proceeding had been successful in 1828. In the statement which he then made it appeared that there were ninety-five grave defects in our law; that of these ninety-five no less than eighty referred, not to the law itself, but to the procedure and administration of that law. A Commission was issued, and of these eighty, sixty had since been removed. He was thus encouraged to ask the House to adopt the same course now with respect to the criminal law which had then been taken as to the civil, and he hoped that his noble and learned Friend on the woolsack, with Her Majesty's other Ministers, would consider in the holidays the expediency of issuing a Commission to examine the whole of this important subject—for the manner in which the law was administered was even of more importance than the law itself. He knew, from communications which had reached him within the last week or ten days, that the deepest and most general interest was felt in these discussions, and in the proposed amendments of 1377 the law. There were one or two of the eighteen Resolutions he had laid before the House on Friday last—the second and the twelfth of them—as to which there was, some hesitation on the part of persons in whose judgment he was disposed to place the most implicit confidence, and which he, therefore, proposed to withdraw for the purpose of modifying them. It had been apprehended that the second Resolution pointed to excluding the local authorities; it did not so point; but he should add words to make that clear. Then it had been suggested that the mere repayment of costs to a poor person who had been improperly arrested, tried, and acquitted was not a satisfactory compensation; the great difficulty was for the prisoner, however innocent, to defray the expense of procuring the attendance of witnesses. He (Lord Brougham) should, therefore, add a sentence to the twelfth Resolution to enable the committing magistrate in such a case to certify what witnesses for the prisoner should be brought to the place of trial at the public expense. There was another very important and delicate subject which had been pressed on his attention—the unanimity of jurors in criminal cases. An important improvement in civil cases was proposed last Session in the Common Law Procedure Act, and carried through the House of Lords; but, unhappily, the clause was rejected by the other House—he meant that clause which would have enabled the Judge to take the verdict of ten jurors, if two obstinately held out. The rejection of that useful clause as applicable to civil cases was a great loss; but he should pause long before he could propose the extension of the same principle to criminal cases, although instances had been brought under his notice, some of which were of such a character that he hardly dared trust himself to express his feelings upon them. It was indeed extraordinary that a man, because he happened to be a member of what was called an "Anti-Punishment-of-Death Society," and happened unfortunately to be summoned on a jury, sworn to give his verdict according to the evidence and the law, should hold out and prevent the law taking its course, because its results might be contrary to his individual opinion. Nevertheless, although such things had happened—and very recently happened, in a case that was must clear and manifest, a case he would not more particularly allude to, because, right or wrong, there had been an acquittal—although such things had 1378 happened once and again, he should be slow to alter the law that required an absolute unanimity for the verdict. The subject deserved consideration, for there had certainly been an entire failure of justice. It would give him great pleasure to hear, after Easter, that the Government had determined to issue a Commission to inquire into our whole system of criminal procedure.

THE LORD CHANCELLOR
said, that no one could deny that the country was deeply indebted to his noble and learned Friend for his labours in law reform and many other subjects; and he had, if it were possible, added to his reputation by his Motion on Criminal Procedure.

LORD BROUGHAM
said, he desired to have more success and less reputation.

THE LORD CHANCELLOR
said, his noble and learned Friend Was rather unreasonable about success, when it appeared that seventy out of ninety-five of his proposals had been carried.

LORD BROUGHAM
said, that the others not yet carried were by far the most important, and were worth all that had been carried put together, except, perhaps, the County Courts and the Evidence of Parties.

THE LORD CHANCELLOR
said, it might perhaps be thought that he was exercising an undue amount of caution on the occasion, but he did not wish to commit himself or the Government with respect to the course which they would adopt in reference to the Resolutions of his noble and learned Friend: he would add, however, that it appeared to him the most practicable mode of attaining the desired results was that the subject should be inquired into by the persons most competent to form an opinion of its difficulties and advantages. He was the more unwilling to give any positive opinion upon the matter in the absence from town of his noble and learned Friend the Lord Chief Justice, who therefore could not give him the aid of his opinion and counsel. He would, however, 1379 assure his noble and learned Friend that the matter should meet with his attention during the recess.

§ LORD HATHERTON
added his earnest recommendation to the Government for the appointment of a Commission, and expressed a wish that the Resolutions of his noble and learned Friend should be printed with the Minutes. The noble Lord added that if the matter had been brought forward after the recess, which he should have preferred, he and many other noble Lords would have been prepared to bring forward illustrations of the present state of criminal procedure, and to show that, sooner or later, there must be an alteration.