BILL PRESENTED—FIRST READING. (Hansard, 10 March 1859)

§ THE LORD CHANCELLOR
rose to call the attention of the House to the question of criminal charges and presenting indictments to grand juries in the metropolitan police districts. He said that a few evening since, when his noble and learned Friend the Lord Chief Justice of England, moved the second reading of his Bill for the prevention of vexatious indictments, he (the Lord Chancellor) expressed his entire concurrence in the principle of the Bill, but said that he thought it did not go far enough. His noble and learned Friend, acting on his experience with respect to certain classes of misdemeanours, in which the system of grand juries was made use of for purposes of extortion and oppression, proposed that parties charged with these offences should not be put on their trials without preliminary examination before a magistrate. He (the Lord Chancellor) could state from his own experience that in various other criminal charges, beyond those stated by his noble and learned Friend, grand juries were made use of for purposes of extortion. He expressed his opinion the other night that it ought not to be in any one's power to bring any charge against any person by means of a secret tribunal. He thought that in the metropolitan districts, at least, there should in every case be a preliminary inquiry before a magistrate. But he then said, that if it was so determined, it would be necessary to inquire whether there need be any further preliminary inquiry before a party was put on his trial. As far as he understood the feeling of their Lordships they concurred, and he had accordingly turned his attention to the subject, and had prepared the bill which he now offered to the House. The first subject to which he had directed his attention was this. The Bill of his noble and learned Friend applied to a scandalous abuse of grand juries, by persons going behind the backs of others, accusing them of offences, and converting that tribunal into an engine of extortion. He (the Lord Chancellor) proposed in his Bill that the object of the Lord Chief Justice's Bill should be confined cases to which only it proposed to apply it, but should be extended to all criminal charges. His noble and learned Friend had mentioned cases of persons who had used grand juries for the purposes of malice and extortion, and he (the Lord Chancellor) 1611 had mentioned other cases. He thought it contrary to the spirit of our laws, that charges should be made in secret, and that any person should be put on his trial without knowing who was his accuser, who were the witnesses, and what was the distinct charge against him. He proposed in his Bill that no charge against a person in respect of an indictable offence should be preferred or tried at the Central Criminal Court or at any General or Quarter Session within the metropolitan police district, unless the charge had been previously investigated by a police magistrate or a justice of the peace. If that part of his Bill were accepted the next step was almost inevitable, for he could not believe that their Lordships would agree that all criminal charges should be subjected to previous inquiry before a magistrate, and that after that any other preliminary inquiry should interpose between the trial. It was hardly possible to believe that in a civilized country, and with the enlightened ideas we were supposed to possess, such a system of criminal justice could exist to the present time. We had in the metropolis a body of magistrates of great legal experience, accustomed to dealing with evidence, sitting daily in open court to examine into all criminal charges preferred; the accused was brought face to face with his accusers; he heard the witnesses, who were open to cross-examination, and was allowed to make any explanation or defence he chose; if there was any doubt or difficulty the magistrate did not decide in haste, but adjourned the case for further inquiry; and all this was done, not to inquire into the guilt or inocence of the party accused, but only whether there were sufficient grounds for sending him for trial. The depositions were prepared with great care; they were read over to the witnesses in the presence of the accused, were signed, and sent to the court where the trial was to take place. The Judges were assembled, and one would suppose that everything had been done preliminary to the trial; but before that could take place, the case was filtered through another tribunal in order that it might be presented to the court for trial. The grand jury assembled—an irresponsible body—in a secret chamber were sworn to secrecy, the accused was not brought before them, the witnesses were called in one by one, and all this was done to ascertain if the magistrate had judged rightly in sending the party accused for trial. It was not to be wondered at that, under such an arrangement, many 1612 bills should be ignored, to the astonishment of the committing magistrates and of the parties themselves, because it afforded ample opportunities for tampering with the evidence. A witness might suppress or vary facts which he had sworn to before the magistrate, or suggest doubts and difficulties sufficient to induce the grand jury to throw out the Bill; and there was no fear of an indictment for perjury, because the proceedings before the grand jury were secret. But if the case went direct from the magistrates to the court, it was impossible for any witness, without danger to vary his evidence, as he would be corrected by the depositions. He was told that Mr. Clark, the late Clerk of Arraigns at the Central Criminal Court, used to call the grand jury the hope of the London thief. A pamphlet had been lately published by a gentleman of great experience, who gave a list of the bills ignored by the grand jury at the Central Criminal Court in six months in 1852. They were twenty-two in number, and he gave the evidence relating to twelve of them, which showed that the party accused ought to have been put on his trial, and that a conviction ought to have ensued. In a case which he mentioned to their Lordships on the previous occasion the grand jury threw out the bill, and a fresh one was sent up either to that or another grand jury, which was found, and the accused pleaded guilty. He (the Lord Chancellor) would now refer them to a case which had occurred in his own experience, and which was familiar to the noble Earl near him (the Earl of Shaftesbury). Two or three years ago a patient in a lunatic asylum near London struck the medical officer, who ordered him to be placed in a shower-bath for half-an-hour, and after that that a dose of tartar emetic should be administered to him; and then the medical officer left the asylum for the day. The patient was placed in the shower bath for twenty-eight minutes, was taken out shivering, the medicine was administered, and in ten minutes after he died. He (the Lord Chancellor) was consulted by the Commissioners of Lunacy, and he expressed a strong opinion that they would not discharge their duty unless a public inquiry took place. That inquiry did take place, before one of the most able and careful of the police magistrates, Mr. Henry, who came to the determination to send the case for trial. The matter had made a great impression on him (the Lord Chancellor), because he came from a considerable dis- 1613 tance to conduct the prosecution. There was no doubt on the minds of any one concerned but that the case would come on, but, to the astonishment of every one, the grand jury threw out the bill. He made no remark on the innocence or guilt of the party implicated, but it was a case for inquiry, and if the individual was innocent, as he was bound to presume he was, it would have been more satisfactory to him if he could have proved his innocence by a public trial, than to have had the inquiry thus stopped short. The grand juries themselves in the metropolitan district had been from time to time so satisfied of their helplessness and uselessness, that they had been in the habit of "presenting" themselves as useless at various sessions of the Central Criminal Court, hoping that a measure for their abolition, which would be for the benefit of the public, would be introduced; but latterly, finding no prospect of such a measure being brought forward, they have ceased to present. These presentments were generally to the effect that the labours of grand juries were unprofitable; that the time had arrived when they ought to be done away with; that in the preliminary inquiry before a magistrate there was ample opportunity for securing a due administration of justice, and that that inquiry superseded the duty of grand juries, which were worse than useless, and ought to be abolished as bringing the administration of justice and the law of the land into contempt. He was anxious to give their Lordships not only his own experience, but that of men more practically acquainted with the subject, and he would refer to a charge delivered by Mr. Stuart Wortley, when Recorder of London, in which he said that with regard to the cases which had undergone preliminary inquiry, he concurred with the grand jury in thinking that their services in that district were useless, caused loss of time, increased the expense of prosecutions, and enabled persons to cause injustice by tampering with witnesses and preferring unfounded charges against innocent persons. He would quote another authority—that of Lord Denman, who was not one likely to give up anything which was connected with the liberty or protection of the subject. Lord Denman said that it was difficult to see the effect and use of the functions of the grand jury; for when they found a bill they only echoed the decision of the magistrate; and if they differed from him and ignored a bill, that could 1614 not clear suspected character, and might do irreparable injustice. There were other evils attendant on the system of grand juries in the metropolitan district. Every session a great many witnesses, prosecutors, and friends of accused persons, assembled at the Central Criminal Court, and it was calculated that about 1,000 persons of all ages and sexes were gathered together at each sitting of the Court. There was no accommodation provided for them; it was uncertain when their cases were to come on, and they had to attend day by day. Evidence was given by the present Lord Mayor before a Committee of the House of Commons as to the demoralizing effect of such a congregration of so many persons of perhaps indifferent character, and it was easy to imagine what the position of respectable persons who were prosecutors was in such an assemblage. When a bill was found by the grand jury, it was still uncertain when the case would come on, and the parties connected with it must remain. The expense of prosecutions was thus made enormous, and though that alone was not a sufficient reason for getting rid of grand juries, yet it was worthy of attention as showing a way in which a considerable saving might be effected. If informations only were required, arrangements might be made to prepare lists of cases for different days, and the parties need only attend on the days when their cases were likely to come on. All this he thought would satisfy their Lordships that what he was about to propose was very desirable. By the second clause it was provided that when a party was committed, or bound over on his recognizances to appear to take his trial, by a magistrate at the Central Criminal Court, or within the metropolitan police district, no indictment shall be preferred or found in respect of such charge; but the officer of the Court shall file an information charging the person with the offence, which information shall be in lieu of an indictment found by a grand jury to all intents and purposes, and shall be followed by all its consequences. The result of this arrangement would be, that solicitors would know exactly the position of the different cases in the list, and that all the parties concerned would know on what day to attend. Various attempts had been made to effect a change in the present system. In 1846, when he (the Lord Chancellor) was Attorney General, he made a 1615 report to the Home Office on the criminal law generally, in which he recommended that grand juries should be abolished in the metropolitan districts. In 1849, a Bill was brought in by the Government of the day for the same purpose, and a Select Committee of the House of Commons was appointed to inquire into the subject. Six witnesses were examined—men of great practical experience—namely, Mr. Clark, the Clerk of Arraigns at the Central Criminal Court; Mr. Humphreys, an attorney of great experience in criminal cases; Mr. Alderman Wire, the present Lord Mayor; Mr. Mirehouse, the then Common Serjeant; Mr. Puckle, Chairman of the Surrey Sessions; and Mr. Bennoch, a merchant of London; who all gave the strongest possible evidence in favour of the abolitiou of grand juries. The Bill, however, was dropped. In 1852, when he (the Lord Chancellor) was again Attorney General, he brought in a Bill for the same purpose, which failed in consequence of a change of Government. In 1857. with the sanction of the late Government, he introduced a similar measure, but owing to the press of public business he was unable to proceed with it. Under these circumstances he hoped that their Lordships would agree that there was no proposition involved in his measure which had not been maturely considered, and which was not desirable. Provision was made in the Bill for cases where parties were committed and bound over to take their trial; but he had further to provide fur the fears of a noble and learned Friend (Lord Wensleydale), who was of opinion that it was the right of every subject to put the criminal law in force according to the established law. He (the Lord Chancellor) did not altogether adopt that doctrine, but it appeared to him to be one of the strongest arguments against the establishment of a Public Prosecutor he had ever heard. He was aware that the Lord Chief Justice considered that when the evidence before the magistrate was not sufficient to justify the committal of the accused, the accuser should have the opportunity of applying to a Judge or some other tribunal in order to put the party upon his trial, if sufficient evidence could be adduced. He had provided for such cases, and he trusted that he had, in the measure as it stood, met all objections, and he might almost say all prejudices. He did not propose to dispense 1616 with grand juries altogether, but the fourth clause provided that when the magistrate thought there was not sufficient evidence to warrant the putting the accused person on his trial, the party bringing the accusation might prefer an indictment at the Central Criminal Court, or other Court, and the same proceedings should be had thereon as was now the law in similar cases; provided he gave notice in writing to the magistrate who had heard the case his intention to do so within two days, and also gave notice of the Court to which he intended to carry the case. There would be no great inconvenience in such a course, as the accused would know who was the prosecutor and who were the witnesses. Then he proposed that the grand jury of the Central Criminal Court should assemble three times a year, and that the grand juries at quarter sessions four times a year, when charges of this nature should be received and determined. He further proposed, that upon the notice being given the depositions should be sent to the Court, before which the trial was to take place, and if any indictment in respect of such charge be preferred to the grand jury, the officer of the Court is to deliver to them these depositions. These were the general provisions of a Bill which he thought would accomplish important objects. It would get rid altogether of secret accusations—it would get rid of the absurdity of a second imperfect investigation of a charge after a complete, full, and satisfactory examination before the magistrate—and it would provide for what some persons thought the accuser ought to have—namely, the opportunity of going before a grand jury, and pressing his accusation in cases where the magistrate considered the evidence insufficient.

§ THE EARL OF SHAFTESBURY
gave their Lordships an illustration of his own personal experience of the uselessness and inconvenience of the system proposed to be remedied by the noble Lord on the woolsack. On one occasion he had his pocket picked, but he gave chase to the light-fingered fugitive, captured him and introduced him to the Rhadamanthus at Marlborough Street, where the whole case was fully investigated, and the case sent for trial by the magistrate; but notwithstand- 1617 ing that, he was compelled to be two days in attendance at Clerkenwell Session-house, waiting the deliberation and decision of the grand jury; and, after all, the operation of finding a true bill did not occupy five minutes. Had he not been an idle person, but a man engaged in urgent business, the inconvenience and loss of time would have been exceedingly great. Nothing, moreover, could be worse than the accommodation given, for he and the public had to pace about on the cold stones, and there was not the accommodation of even a single seat.

§ LORD CRANWORTH
expressed his entire concurrence in the measure propounded by the noble and learned Lord on the woolsack. He had two days ago received a letter from a person with whom he was not acquainted, but who appeared to be an intelligent person, suggesting, with reference to the Bill of the Lord Chief Justice, that it might be the proper occasion to remove what the writer considered an anomaly, involving an unnecessary expenditure of public money, of presenting indictments in cases of manslaughter and murder after a coroner's inquest had been held. He thought that his correspondent was mistaken on that point, and that there might be a difficulty in laying it down that the inquest by the coroner should be the only preliminary charge on which the accused person should be tried. It often happened that very valuable evidence was given after the coroner had held his inquest.

§ THE LORD CHANCELLOR
would turn his attention to the point, but observed there was a clause in the Bill which exempted proceedings upon coroner's inquisitions, when a verdict of murder or manslaughter has been found. The Act also was not to affect ex-officio informations by the Attorney General, or the jurisdiction of the Court of Queen's Bench.

§ LORD WENSLEYDALE,
while admitting that some alteration of the law was desirable, thought the rights of prosecutors to put the criminal law in force should be preserved; but the clause introduced by his noble and learned Friend removed much of the objection he had expressed on a former occasion upon that point. He regarded the grand jury as a constitutional and a useful institution, and should be sorry to see it abolished in all cases.