HL Deb 13 February 1860 vol 156 cc892-902

, in moving the second reading of this Bill, said the principle of the measure had been sanctioned on three different occasions by the other House of Parliament. There had never been a hostile vote against it, and though it had not passed into a law, that was in consequence of circumstances wholly unconnected with the merits of the measure. One of the Bills introduced into the other House had been sent before a Select Committee, where competent witnesses, including such men as Mr. Humphreys, the eminent solicitor, a man of great ability and experience in criminal cases, and Mr. Alderman Wire, the late Lord Mayor, were examined. The effect of their evidence was, that at least in the metropolitan districts grand juries were not only unnecessary, but in many cases positively mischievous; and they expressed cordial approval of the Bill. The present Bill was the same in principle. It would be recollected that in the course of last year a Bill was introduced to remedy a very serious evil, arising from parties going secretly before grand juries and preferring Bills of indictment in particular cases against individuals, in order to serve purposes of extortion [Vexatious Indictments Bill], That Bill was now the law of the land, and, following in its footsteps, he now proposed that within the limits of the metropolitan police district no person should be allowed to prefer such Bills before a secret tribunal. He proposed that within the metropolitan police district no criminal charge should be tried before the Central Criminal Court, or any other Court, unless there had been a previous investigation before a magistrate. Their Lordships were aware that in the metropolitan districts there were police courts, presided over by a body of stipendiary magistrates, gentlemen selected from the legal profession, and that in their courts everything that was done took place in public. The witnesses were examined openly, and all the proceedings preliminary to the trial of persons in a higher court were known to the public. All those proceedings were open and public. They were not only known to the parties in attendance, but were made the subjects of reports in the public journals and circulated throughout the country. The parties charged were thus enabled to become cognizant of and to sift the evidence of their accusers; and the magistrate took all care that there was a sufficient primâ facie case to send the accused for trial. The depositions taken at those preliminary inquiries were sent to the court at which the trial was to take place, to enable the proper officer to prepare the indictment, to assist the Judge in the course of the trial, and to be at the service of the prisoner, who by their means was able to check or contradict the witnesses if they varied from the evidence they had given before the magistrate. One would think that this was enough of preliminary inquiry before the trial took place. But no—before the trial could take place, or the prisoner be discharged, another process intervened. Twenty-three gentlemen, collected indiscriminately from the district, were assembled in a private chamber, an oath of secrecy was administered to them, and there they received from time to time the different indictments which had been prepared. They were generally persons unversed in legal proceedings; they had nothing to direct their investigation except the feeble light afforded by the indictment; they had no notion how they were to conduct the investigation, and they had therefore to grope their way almost in darkness; sometimes through a labyrinth of complicated facts which would perplex the judgment of much more experienced persons. If they found a true Bill, they merely repeated the decision of the magistrates who sent the prisoner for trial; and if they threw out the Bill, the great probability was, that they committed a grave error and hindered the course of public justice. That was the view which the late Lord Denman took, and on which he contended that the institution was superfluous. It was not to be wondered at that it frequently happened that Bills sent before grand juries at the Central Criminal Court were ignored, to the surprise of the Judges who had the depositions before them, of the magistrates who committed the prisoners for trial, of the prosecutors who knew the facts, and oven the prisoners themselves. The grand jury, in fact, had been called the hope of the London thief. He (Lord Chelmsford) could not help giving two illustrations of the working of this system—one of which had come within his own experience when he was a law officer of the Crown, and the other was communicated to him by the late Mr. Pashley. The first case was one of very considerable interest. A medical officer who was attending the paupers in a lunatic asylum was struck by one of them. He immediately ordered the pauper to be taken to a shower-bath, and kept under that treatment for half-an-hour, The shower-bath was a mode of medical treatment which, properly administered, had often very beneficial effect; but half-an-hour seemed to be an extraordinary time to subject a person to one. The poor man, after being there for twenty-eight minutes, was taken out. The medical man, after giving the directions, left the asylum. When the man was taken from the bath he was in a dreadful state, and he died in half-an-hour afterwards. An inquest was held on the body; but the jury appeared not to have gone much into the case, for they returned a verdict of accidental death. When he (Lord Chelmsford) heard of the matter, he directed further inquiry to be made, and the case was eventually sent for trial. He thought that even for the interest of the medical man himself, it was a case which ought to be brought before a jury, and that it would be better for him that a full and public investigation should be made, where he might have an opportunity of defending himself, than that the matter should be stifled. He (Lord Chelmsford) was prepared to appear as counsel for the prosecution, all the preliminary preparations had been made for proceeding with the trial on the following morning, but the grand jury—whether the case was not presented before them in the same light, or that the witnesses omitted material facts—but the jury ignored the Bill, and the matter fell to the ground. Now, he submitted to their Lordships that that was a case which in every view of it demanded the solemnity of a trial. Sometimes witnesses might honestly forget important facts, but sometimes, also, witnesses might be tampered with and induced to withhold or vary their evidence before the grand jury. The other case was one which had been communicated to him by the late Mr. Pashley. Two men were charged with stealing bottles of ale from their masters, and a third person was charged with receiving the same. To the surprise of the prosecutor the grand jury ignored the Bill; and it was afterwards stated that the counsel of two of the prisoners had recommended their clients to plead "Guilty." The prosecutor was not satisfied, and preferred another indictment. This time the grand jury returned true Bills, and bench warrants were issued. One man absconded, another was convicted, and the receiver was acquitted. It was not only a few persons who desired a change of system, but for some time past it had been the custom for grand juries themselves to make presentations, setting forth their inutility under present circumstances. He would also remind their Lordships of the inconvenience, delay, and expense at present caused by the necessity of taking all witnesses before the grand jury, keeping large numbers of persons hanging about the Old Bailey for perhaps two or three days before their case came under the notice of the grand jury, and then, if bills were found, having to wait two or three days longer to give evidence at the final trial. The expense of this was considerable; for though the allowance to a witness was only 3s. 6d. a day, yet when that came to be multiplied by hundreds for several days at a time, and that there were twelve sessions in the year, the House would see that this would accumulate into a large sum. In fact, they were so great that persons often did not appear, to the great prejudice of justice. Having thus stated what he believed to be the inconvenience of the present system, he hoped their Lordships would be of opinion that the measure he proposed was a remedial one to which they could give their sanction. He did not wish to conceal from their Lordships that various objections would be urged against the Bill. He should, no doubt, be told that his measure would be a deathblow to one of our most venerable institutions and one of the greatest safe-guards of the liberty of the subject. No one had a greater veneration than himself for our ancient institutions, but his respect would not prevent him from applying a reforming hand in cases where time had impaired or destroyed the usefulness of the institution. He admitted that there had been circumstances in which the grand jury had been and might be again, a bulwark of the liberty of the subject; but this referred to political trials, and was certainly quite unnecessary in ordinary trials. It was never intended that the measure should be applied to the former class of cases, and in order to avoid all complaints upon that head he had, by the 8th section of the Bill, excluded all kinds of political offences from its operation. Other persons might object that the Bill, if passed, would be but a prelude to the abolition of grand juries throughout the country; but that certainly was not any desire of his, nor did he believe it would be a consequence of the passing of his Bill. He thought that it was very advantageous to have the country gentlemen interposing in the administration of public justice, and that providing for the exceptional case of the metropolis would not affect the existence of grand juries in other parts of the country. His object was to deal with cases where there had been a preliminary investigation before professional and experienced magistrates. Then again it was said that the metropolitan police district was not co-extensive with the Central Criminal Court, and that though the stipendiary magistrates in the metropolis might be trusted with the preparation of cases for trial, yet the same argument did not apply to the City, where the Aldermen of the City were magistrates, or the outlying districts of Kent, Surrey, and Essex, where country gentlemen acted as magistrates. His noble and learned Friend on the woolsack, he believed, entertained some doubt as to the prudence of intrusting the Aldermen of the City of London with preliminary investigations without the subsequent interposition of a grand jury. Certainly, if that doubt were to prevail, it would be fatal to the Bill, as it would be absurd to attempt to pass it as a metropolitan measure, from which the metropolitan city was excepted. He must, however, say that the conduct of the Aldermen in the investigation of crime would bear comparison with that of the police magistrates; and the late Lord Mayor had stated, that an inspection of the returns would show that the results of convictions as compared with acquittals by the City magistrates were about the same as those of the stipendiary magistrates. Considering that the City magistrates acted as openly and publicly as the police magistrates, that reports of the proceedings were circulated as widely, and that the cases brought before them did not involve any nice points of law, but were merely a preliminary adjudication on the facts brought forward in support of the charges, he thought no harm would result if they were intrusted with the same powers of final commitment as were given by the Bill to other magistrates. With regard to the outlying districts included in the operation of the Bill, the cases arising there were few in number, there being only fifty-eight in 1857, while the total number of commitments was 1,372. He admitted, however, that an objection might be urged against his measure with respect to them, inasmuch as those cases were heard in comparative privacy. But it would be excessively inconvenient that a grand jury should be summoned for those cases alone; and, therefore, adopting a suggestion made to him on a former occasion, he had endeavoured, not to obviate the objection, but, in some degree, to meet it by providing that in those cases commitments of two magistrates sitting publicly in the court or room where special sessions were generally heard, should have the like effect in those outlying districts as the commitments of the police magistrates. He thought, then, that if this did not entirely get rid of the objection, it so far diminished its cogency that it ought not to be held fatal to a measure the main principle of which had met on former occasions with the sanction of both Houses of Parliament. He trusted therefore that their Lordships would now accede to the second reading. In Committee he hoped for the assistance of his noble and learned Friends to make the measure as perfect as possible, his only wish being to remedy the acknowledged evils of the grand jury system within the limits of the metropolis.


said, he by no means intended to oppose the second reading of the Bill. The question, however, was attended with considerable difficulty, and required that they should proceed with caution. He entirely approved the provision that there should be no indictment in the Central Criminal Court until after an investigation before a magistrate. It was the boast of this country that its criminal law was not vested in the Government, but that any individual might put it in motion. There was, however, a great hardship that any person should be able to put it in motion without the intervention of a magistrate or any public officer; and none whatever in defining how he should be permitted to do it, and in enacting that no indictment should be preferred before a grand jury until after a preliminary investigation. At present any person, acting behind the back of the person whom he wished to oppress, could prefer an indictment for perjury, conspiracy, or obtaining money under false pretences, to the grand jury, and, if a true Bill were returned upon his ex parte statement, he might imprison the defendant upon a warrant. A remedy had already been applied in regard to a class of cases chiefly liable to this abuse, and he (the Lord Chancellor) would be glad now to see such a remedy extended. But the proposal to abolish grand juries altogether within the metropolitan limits was a very serious one. He had no objection to dispense with them where, before the prisoner's committal, there had been an examination by a trained lawyer. Such a measure, he believed, would be safe and practicable. In Scotland, for example, there was no grand jury; the public prosecutor, through his deputies, examining each case, and determining whether a person should or should not be brought to trial; and on a comparison between the English and Scotch systems he believed that the advantage was on the side of the latter. But the Scotch system was founded on a preliminary investigation by a trained magistrate, who was a perfect master of his work. What alarmed him was that his noble and learned Friend was unable to confine his measure to commitments by trained police magistrates. The Lord Mayor and Aldermen, or any one of them, and any two justices of the peace within a considerable area around the metropolis, might under the Bill commit a person for trial without the intervention of a jury. Now, he did not assert that this was a fatal objection to the Bill, for he hoped his noble and learned Friend would endeavour to overcome it. He (the Lord Chancellor) had a sincere respect for the City magistrates, believing them to be very effective and very earnest in their attempt to do what was right; but it was rather bold to declare that the judgment of an Alderman, however respectable, or of two magistrates appointed by the Lord Lieutenant of a county should be held to be equivalent to the judgment of twelve grand jurymen. His noble and learned Friend said that difficult questions did not arise in cases which came before the City magistrates; but that was a mistake, because not merely questions of fact, but nice points of law might present themselves, to the proper consideration of which a single Alderman, however respectable, would not be equal. Again, the Lord Lieutenant of Middlesex must occasionally put incompetent men into the commission of the peace, and according to the Bill any two of them might send a person to trial for a disgraceful offence without investigation by a grand jury. Their Lordships would remember that Lord Shaftesbury was saved from a scaffold by the intervention of such a tribunal; for if a true Bill had been returned by the grand jury, he would have been brought before the High Steward and a packed jury of this House, and his fate, no doubt, would have been sealed. He did not think that in these times there was much apprehension of the recurrence of such a state of things; but he wished to draw the attention of the noble and learned Lord to this point; because, in making the exception with regard to political offences, he had used phraseology "offences against the Queen," which legally applied to all public offences, all these being offences against the Queen. In conclusion, he would express his concurrence in the second reading of the Bill, and his desire to do all in his power to assist in removing objections to some of its clauses in Committee.


said, he entirely agreed that the Bill ought to be read a second time, and the difficulties which had been adverted to, got over, if possible, in Committee. When, about twenty-six or twenty-seven years ago, he had the good fortune to obtain the sanction of Parliament to the Act establishing the Central Criminal Court, it was then certainly in his contemplation to make very considerable changes with respect to the grand jury system. One part of the plan was that there should be a public prosecutor for the Central Criminal Court—and, indeed, he considered that the appointment of officers of that kind should be general throughout the country. The evidence taken in the Committee, on which his learned and able Friend (Mr. Phillimore) presided, had thrown great light upon this subject, and greatly strengthened the reasons which induced him in 1834 to form this resolution. His intention certainly was not to encroach so entirely as the present Bill did on the functions of the grand jury; but, nevertheless, he conceived that the peculiarity of the London police district in having magistrates, professional men, appointed by a responsible Government, made a very great difference between that district and other districts of the country where it might still be fitting and proper that grand juries should be continued. He thought that if the present measure were carried, after due regard had been paid in Committee to the objections and difficulties pointed out, it would accomplish the great objects in view at the time of the establishment of the Central Criminal Court, the only defect of the measure being the want of a public prosecutor, He had himself known a Member of their Lordships' House to be dragged before a grand jury and a bill to be found against him, when there was not the shadow of a pretence for it. The bill was preferred by a person to whom the noble Lord had advanced large sums of money; and, because he refused to advance more, advantage was taken of the constitution of the City grand jury, and their disposition to signalize themselves by finding a bill against the first merchant perhaps in the world, and a time was chosen when one grand jury, it was supposed, would find a bill more easily than another. The bill was found, and the demand for money was repeated. The noble Lord preferred undergoing a trial at Guildhall to yielding to the demand, and he was honourably and triumphantly acquitted, and the object of the person prosecuting him was frustrated. The grand jury was often a cloak and cover for the exercise of malignant passions where there was no officer individually responsible as in Scotland, and he therefore fully approved of the clause by which it was proposed to enact that no bill should be preferred without a preliminary examination before a magistrate. He regarded this as an imperfect substitute for the responsible officer. But he would repeat, that the appointment of a public prosecutor who could prevent all improper proceedings, was the true remedy for all the inconveniences that had been referred to.


said, his principal objection to the Bill was that it might be used as a ground for abolishing the grand jury, which he regarded as a valuable institution, altogether. It was a great protection against improper prosecutions that a man could not be tried without the agreement of twelve men that a trial ought to take place. He might, indeed, be acquitted on his trial, but if the bill were thrown out by the grand jury he would stand much clearer in public opinion. Nevertheless, as he had urged his objections to such a measure as the present ineffectually last Session, he should not now oppose the second reading, but would give his best assistance in Committee to remove what might be deemed objectionable.


said, he would make one suggestion to the noble and learned Lord who had introduced this Bill. As he proposed to retain grand juries at the sessions to be held four times a year, for which the most important cases were reserved, it might be well that the prisoners committed by justices in the outlying parts of the metropolitan district should also be tried on those occasions, with the aid of the grand jury. They would not be detained longer than the prisoners in the rural counties of England usually were, waiting their trial at the quarter sessions or assizes.


said, he would endeavour to obviate the various objection in Committee.

Bill read 2a; and committed to a Committee of the Whole House on Monday next.

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