Lords Sitting of 1 March 1859

MINUTES.
PUBLIC BILLS—Ia Burial Places. 2a Vexatious Indictments.
VEXATIOUS INDICTMENTS BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  LORD CAMPBELLin moving the Second Reading said, that the present practice of allowing bills to be presented privately before grand juries without any previous investigation of the case before a magistrate, had been so grossly abused, that he thought that their Lordships would agree with him that it was time that some provision was made on the subject. Where, in cases of misdemeanour the party charged was summoned to appear before a magistrate, a hearing took place, witnesses were produced, and it was not until reasonable ground had been shown for the prosecution that the magistrate committed the defendant for trial. The defendant then had copies of the depositions, he knew what witnesses were to be examined against him, and what they were to depose to, and he knew, generally, what the case was he had to prepare himself against at the trial. But under the present system of indictments, the person prosecuting him could procure a bill to be found against him upon ex paste evidence, without any notice whatever, and he might be brought up for trial without in any way being aware of the nature of the charge he was going to meet. At the trial, notwithstanding the shortness of the notice of the charge, he might be able to meet it, and show that he was quite innocent of any such charge; but what vexatious anxiety and expense must such a proceeding cause? In these cases, the object of the party was, of course, to extort money
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  or to oppress the unhappy individual. But it was said that in these cases, when it was shown that the charge was unfounded, the party might have his remedy by an action—what was called an "action on the case" for the malicious prosecution; but what satisfaction was that to a man of character who had been subjected to such prosecution upon an unfounded charge? The cases in which indictments of this kind were most generally presented, without the accused having been previously brought before a magistrate or without his receiving any notice, were perjury, conspiracy, and obtaining money by false pretences. With regard to conspiracy, their Lordships might be aware of what was said with respect to the general nature of this offence—that if two men were, during Divine service, to blow their noses together in church, they might be indicted for a conspiracy to disturb the congregation. Nothing was easier than to trump-up charges of conspiracy, and he was sorry to say that grand juries, especially at quarter sessions, were but too ready to find bills on such trumped-up charges. With regard to false pretences, the real point of the case was, whether a bargain had been properly carried out or not—but the two parties to the bargain indicted each other—the buyer indicted the seller for obtaining money by false pretences, and the seller indicted the buyer for obtaining goods under false pretences. What he proposed as a remedy for these evils was, that in all cases of perjury, conspiracy, or obtaining goods by false pretences, the prosecutor should be obliged to go before a magistrate in the first instance before preferring his indictment, in order that the charge should be thoroughly investigated, or that no one should be allowed to prefer a bill for such offences without the leave of the Attorney or Solicitor General first obtained in writing. He thought that the leave of the Attorney or Solicitor General would be sufficient, as he was the person constitutionally responsible in such case. If the Attorney General refused his consent, then there should be an appeal to one of the Judges of the superior Courts on the subject. He hoped that their Lordships would think that he had made such a case as would justify him in asking them to agree to a second reading of his Bill.
  Moved, That the Bill be now read 2a.
  LORD WENSLEYDALE (who was almost inaudible), thought the Bill highly objectionable and unconstitutional, and he

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  thought that his noble and learned Friend had made no case for it. It was an attempt to curtail the right of every man to appeal to a jury of his country, which prohibition might be made the act of the Executive. There were only a few special statutes which took away this common law right.
  THE LORD CHANCELLORsaid, he entirely agreed with all his noble and learned Friend (Lord Campbell) had said, and quite approved of the Bill he had laid before their Lordships—he had only one objection to it, namely, that it did not go sufficiently far—it did not meet all cases. He could add his own experience to that of his noble and learned Friend as to the scandalous abuses which arose from persons resorting in the first instance to grand juries, and preferring before them charges against persons founded on malice and oppression. Their Lordships could hardly be aware of the extent to which the practice was carried, and therefore he wished to give their Lordships two or three instances to illustrate it. His noble and learned Friend, the Lord Chief Justice, would remember the case of Mr. Mellersh, which came before him in 1853. He was, as he believed, a respectable man—a banker and solicitor at Godalming. He was a defendant to a suit in Chancery. From matters arising in that suit the plaintiff chose to prefer indictments against Mr. Mellersh for perjury. He first of all presented a Bill before the grand jury against Mr. Mellersh for perjury; that was thrown out: he next preferred a Bill before another grand jury for conspiracy; but that also was thrown out: he, persevered, and went before another grand jury, and obtained their consent to the finding of two Bills for perjury and one for conspiracy. He subsequently obtained a warrant on a Saturday, intending to apprehend Mr. Mellersh at home, and to bring him to London, so as to prevent his finding bail until Monday. Mr. Mellersh had, however, timely notice of these proceedings, and avoided apprehension on Saturday, came up to London on the Monday, and put in bail. The case on one of the indictments was subsequently tried before the Lord Chief Justice, and Mr. Mellersh was acquitted almost with acclamation, and the two other indictments were abandoned. That was one case. He would now mention another. It was the case of a French Canadian—a stranger in this country. An indictment was preferred against him for
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  keeping a gaming-house. He could not obtain bail, was thrown into prison, and there he remained for six months. At last an application was male to the Court of Queen's Bench, and he was immediately released. Three names were at the back of the indictment; but the prisoner knew not one of them. One was said to be a Mr. Hare, a solicitor. There was only one Mr. Hare in the Law List, and on application to him he said he knew nothing about the matter. Under these circumstances the prisoner was released. The third case was that of a lady who resided in Bolton-row. She was indicted for keeping a house of ill-fame. But she had always let her house to most respectable lodgers, and when she appeared at the bar at the Central Criminal Court to answer the indictment, her landlord proved the respectable character of herself and her house. No prosecutor appeared, and the result of course was her acquittal. Now he requested his noble and learned Friend the Lord Chief Justice to observe, that if the present Bill had been in operation, these cases could not have occurred without previous inquiry. The parties must have appeared before a magistrate; and if he had found that there was no charge against the parties he would have dismissed it. The present Bill would not apply to the two last cases, which were in every respect cases of gross extortion. He wished the Bill went sufficiently far to embrace all cases where an indictment might be preferred for the purpose of extortion. When Bills of indictment were preferred behind the back of the parties, they were either guilty or not; and if guilty the great desire was to communicate with the prosecutor, and buy off his proceedings. That was also done, because in many cases the prosecutors were unwilling to proceed. In either case justice was defeated. Now he (the Lord Chancellor) ventured to think that it was desirable in every case where there was a criminal accusation that it should be publicly heard. He would extend the Bill to every criminal court, and compel parties always to go before a magistrate. But, supposing the House should be inclined to go that length, then arose the question of the propriety of continuing the grand jury system, at least within the metropolitan district. His noble and learned Friend (Lord Wensleydale) said it was the right of every subject within the realm to put the criminal law in force; but his noble and learned Friend

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  the Chief Justice did not dispute that proposition—he only proposed that it should be put in force in a particular manner, in order to put an end to a system of extortion and oppression. Now, how did the grand jury system work at present? A party was accused before a magistrate, who conducted his inquiry in public, and, having ascertained that there was sufficient evidence to warrant further inquiry, sent the accused for trial. It might naturally be expected that the trial would take place without any further preliminary examination; but instead of that the case was taken before an irresponsible body, sitting in a secret chamber, probably quite unaccustomed to legal proceedings, and they determined whether there should be any further trial. The result frequently was that in cases which had been heard before a magistrate and sent for trial, the grand jury, to the astonishment of the magistrate and all persons concerned, threw out the Bill. A few days since he hall been told by his learned Friend, who presided at the Middlesex Sessions, that in three cases where the grand jury had thrown out the Bills he had examined the depositions, and found that they were not only sufficient to justify a further trial but even to secure convictions. In one instance he directed a fresh Bill to be presented, which was returned found by the grand jury, and the man was convicted. In another remarkable case one Bill was ignored by the grand jury, but a second being presented and found, the accused at once pleaded guilty of the offence. Under those circumstances he thought their Lordships would agree that it was desirable to abolish grand juries, at least within the metropolitan districts. He himself had made several attempts to pass a measure for that object, but from various causes he had not been successful. He had hoped that his noble and learned Friend would not have confined himself to what he must call so partial and narrow a measure as the present, but approving as he did of the Bill as far as it went, he should give his vote in favour of the second reading.
  LORD CRANWORTHrecommended that the provisions of the Bill should, in the first instance, be confined to the Central Criminal Court; because, no doubt, in the metropolitan districts, every person had sufficient security in the responsible magistracy. He agreed that sending cases which had been inquired into by experienced magistrates at Bow Street and other
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  London police courts, to be heard again by grand juries was puerile to the last degree. He felt rather doubtful about the expediency of extending the provisions of the measure to all parts of the country, but, on the whole, he was in favour of the second rending.
  LORD BROUGHAMwas of opinion, that if a public prosecutor were appointed, grand juries would not only be unnecessary, but positively mischievous. In this respect, the law of Scotland offered a most favourable contrast to that of England. He considered that this Bill was a step in the right direction, and should have wished that it had gone further.
  LORD CAMPBELL, in reply, expressed his gratification at the very favourable reception which this measure had obtained from their Lordships. When it was considered in Committee, it might receive such Amendments as they deemed necessary. He quite agreed that when a man had been examined before a responsible magistrate, who was used to the sifting of evidence and the examination of prisoners, the interposition of a grand jury between the committal and the trial was unnecessary; at the same time he admitted, with his hon. and learned Friend (Lord Cran-worth), some doubt as to the expediency of doing away with that interposition throughout the whole country at the present time.
  Motion agreed to.
  Bill read 2a accordingly, and committed to a Committee of the whole House on Monday, the 28th instant.
  House adjourned at half-past Six o'clock, to Thursday next, half-past Ten o'clock.