Lords Sitting of 24 February 1887

MINUTES.
PUBLIC BILLS—Second Reading—Law of Evidence Amendment ٭ (23); Justices' Jurisdiction٭ (24).
PROVISIONAL ORDER BILLS—First Reading—Drainage and Improvement of Lands (Ireland) ٭ (29); Local Government (Ireland) (Carrick-on-Suir)٭ (30).

LAW OF EVIDENCE AMENDMENT BILL.—(No 23.)
(The Lord Bramwell.)
LAW OF EVIDENCE AMENDMENT BILL.—(No 23.)

  SECOND READING.
  Order of the Day for the Second Reading read.
  LORD BRAMWELL, in moving that the Bill be now read a second time, said, the best reason he could give their Lordships for agreeing to his Motion was that their Lordships had already passed a similar measure, but which was not heard of again after it was sent to the other House. The object of the present measure was to remove the last piece of the old Law of Evidence, and to enable persons charged with crime, and the husbands and wives respectively of those so charged, to give evidence on their trial or inquiry. The Bill was not compulsory; no person could be called under it against his or her inclination to give evidence, and it would be entirely at the option of the prisoner whether he was called as a witness or not. Any person giving evidence would have to submit himself to cross - examination. He doubted very much whether prisoners as a class would be benefited by the Bill. It would be to the advantage of innocent persons; but it was very likely that the measure would do some harm to those who were not innocent, to which, he trusted, their Lordships had no objection. There was a notion that a prisoner had a right to make a statement without being sworn; but he very

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  much questioned whether he had the privilege; he had never heard of it until very recently. The practice, no doubt, had crept in; but any statement by a prisoner in such circumstances was comparatively worthless for the reason that it was not made on oath, and, what was even more important, was not subject to cross-examination. He hoped their Lordships would pass the Bill.
  Moved, "That the Bill be now read 2a"—(The Lord Bramwell.)
  THE LORD CHANCELLOR (Lord HALSBURY)said, it had been his opinion for a great number of years that an alteration of the law, as recommended by the noble and learned Lord, should undoubtedly be made. He might date back his firm conviction on the subject to a case in which he was engaged many years ago as counsel. It was a civil action, brought against the agents and a number of the directors of a commercial company, who were charged with conspiracy to defraud, and each of the persons charged was called as a witness, and was thus able to give an explanation. Now, he had no doubt whatever that if those who brought forward that action had thought it right to indict the persons charged, instead of bringing the case forward as a civil action, every one of them must have been convicted in the absence of the explanation which they were able to give when called. That was only one of a number of cases which had come under his notice. The noble and learned Lord had recommended the Bill on the ground that it was not compulsory; but while it might not be so in terms he thought it was compulsory in effect. If they made it competent for persons to be called, and they were not called, the inevitable conclusion, the irresistible force of logic, would be that they were not called because they would be obliged to admit their guilt. He entirely approved the object of the Bill; but he did not think it right that their Lordships should adopt it without fully understanding that it forced upon accused persons the necessity of making explanations on their trials.
  THE MASTER OF THE ROLLS (Lord ESHER)said, he did not like the Bill, either with or without the 5th clause. Without it, no one would look at the Bill. With it, the Bill was an unjust
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  anomaly. The 5th clause provided that a prisoner, if called, should not be cross-examined as to his previous life, whether he had been convicted, and so on, with the view of testing his credibility. They might thus have this extraordinary condition of affairs—that while the prosecutor and his witnesses might have to answer questions as to their past history, the prisoner's story, without such testing, was to have equal value, although the accused, from the number of convictions—it might be for perjury—was, in truth, a witness whose testimony was wholly unworthy of belief. The 5th clause showed that the promoters of the Bill dared not face its consequences.
  LORD DENMANsaid, he was opposed to the Bill, as it was sure to cause a great waste of time. A fee would have to be paid for the administering of every oath, and this would be a loss to a defendant. The Lord President of the Council had objected to oaths on examinations before magistrates last year. At present a prisoner or defendant stated his case, and it was not more trustworthy on oath, and he would not by an oath escape justice. Sir Charles Dilke was not believed on his oath. O'Donnell made a statement, but was convicted. A man of the same name had worked for him (Lord Denman), and was asked if he were related to the man whom Mr. Justice Denman—his (Lord Denman's) brother—had hanged. The answer was, "He was my cousin." He (Lord Denman) said if his statement had been on oath it would not have saved him. He said Carey fired the first shot. He inquired of the convict's counsel if he thought an oath would have saved him. He wrote, "He did not think, it would." He also asked the Hon. Mr. Justice Denman, and he wrote that O'Donnell's saying when he saw the likeness of Carey "I will shoot him," caused his conviction. He (Lord Denman) told the cousin that a statement not confirmed would not save, and that no man can take the law into his own hands. As to cases of divorce and interested witnesses, it ought to be left to the Presiding Judge to decide if it were necessary to call such evidence or to dispense with it.
  THE EARL OF MILLTOWNsaid, that he entirely agreed with what had been said by his noble and learned Friend the Master of the Rolls (Lord Esher) as to the inexpediency of passing

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  the Bill. The Bill would be really compulsory, although it was nominally not so. It would, he feared, prove a great incentive to perjury. The penalties which were supposed to attach to the commission of perjury had become practically inoperative, as no prosecutions were ever instituted. The verdicts in divorce cases showed that parties were frequently guilty of perjury and subornation of perjury, and yet no prosecutions followed these verdicts. The result of permitting co-respondents to give evidence in the Divorce Court was not an encouraging precedent for legislation of this kind. Did anyone really suppose that a jury would attach greater weight to the statement of a prisoner because it was made on oath? It was enough that he should have the opportunity of making a statement. He might mention that a Judge who had tried more than 3,000 prisoners had told him that he was opposed to the Bill, and believed that all that was necessary was that power should be given by statute to the prisoner to make any statement he pleased.
  THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)said, he entirely differed from those who thought that a prisoner, in his statement, was always able to do full justice to his case. He could not agree that every statement by a prisoner always served him or did justice to his story. He believed an ignorant prisoner—and in the country there was a certain number of ignorant prisoners—had not the faintest idea of telling that story intelligibly; he would begin at the wrong end; he would argue with an imaginary enemy; and he could not tell his story in such a way that the jury could understand it. In such cases, when acting as Chairman of Quarter Sessions, he had found that, without anticipating the proposed change in the law, the putting of a few questions to a prisoner in the way of examination or cross-examination—he knew he was extremely irregular in so doing—had the effect of assisting him to present his case in a way that was more satisfactory to the jury and the Court than leaving the matter where it was left by an unsifted and imperfect statement. He did not believe that without some such help a very ignorant prisoner could put his case properly.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Monday next.

JUSTICES' JURISDICTION BILL.
(The Lord Bramwell.)
JUSTICES' JURISDICTION BILL.

  (NO. 24.) SECOND READING.
  Order of the Day for the Second Reading read.
  LORD BRAMWELL, in moving that the Bill be now read a second time, said, that it had already been twice passed by their Lordships' House. Its object was to extend the jurisdiction of the Court of Quarter Sessions in cases of burglary. Undoubtedly, there were many cases of burglary for which the offender deserved to be sentenced to penal servitude for life—cases in which housebreaking instruments and weapons such as firearms were used. Such cases ought to be tried by Judges of Assize. The offence of burglary was technically committed in most trifling cases. Burglary consisted in either breaking into or breaking out of a house between 9 p.m. and 6 o'clock a.m.; and the offence was committed if a man walked out of a lodging-house with another lodger's coat, simply opening the door, or if he put his hand through a pantry window and stole a piece of bacon. There were many cases of burglary sent to Assizes which might be more properly tried at the Quarter Sessions; for, as they knew, a man might be kept in prison a longer time awaiting his trial at Assize than he might be if tried by a Court of Quarter Session. It was impossible to lay down any rule, or to make any statement, which would define a case of trifling burglary. The language used in the Bill included all cases, but gave an option to the committing magistrate, who, instead of being bound, as he now was, to send all burglars for trial at Assizes, might, if he thought them proper cases, send them to the Court of Quarter Session. Though it included all cases, the Bill contained words which would sufficiently indicate to any, magistrate, mindful of his duty and endowed with common sense, that he was not to send grave cases to the Quarter Sessions. He denied that magistrates in Quarter Session were unfit to try such cases as were proposed. Magistrates at present tried cases of housebreaking, and to say that they were incapable of trying trifling

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  burglaries was to say that they were not capable of trying at what o'clock the offence was committed. He asked their Lordships to pass the Bill, with a view to benefit prisoners who otherwise might be detained longer than they would be if tried at Quarter Sessions, and in order to save the waste of time of Judges in trying trumpery cases.
  THE MASTER OF THE ROLLS (Lord ESHER)said, he had the misfortune to differ from the noble and learned Lord. He thought that before passing the Bill they ought, at least, to have some proof that magistrates in Quarter Session were willing to undertake the heavy responsibility thrown upon them. The enactment of the Bill was that any case of burglary might be tried before a Court of Quarter Session, so that cases of the gravest kind might be tried before this Court—cases the punishment for which was penal servitude for life. It was not fair to put upon local magistrates so great a responsibility as such cases might involve. The recital that the Bill was to be applied only in trifling cases had no effect upon the enactment. And, further, a trifling case in itself might be the offence of a man who had been previously convicted, and the responsibility for whose punishment ought not to be placed upon magistrates. He also wished to point out that while in the title of the Bill it was stated that the committing magistrate was to have a discretionary power in sending cases of burglary to the Quarter Sessions or Assizes, in the Bill itself, which was really all that should be looked at, nothing at all was said as to there being any option in the matter. The Bill was not wanted. The number of cases of small burglaries, as they were called, did not, on the average, exceed five at an Assize.
  THE LORD CHANCELLOR (Lord HALSBURY)said, he agreed with a great deal of what had been said on both sides. He thought it would be well to read the Bill a second time; but it would also be reasonable to wait and see whether some Amendment could not be made in the Bill. Mere trifling cases of burglary ought not to occupy the attention of Judges of Assize, blocking the way of more important business. Some improvement might be made whereby the Public Prosecutor or some proper person might intervene before a case was committed to
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  the Quarter Sessions, and see that there was no objection to the course taken. There were serious offences, such as wounding with intent to do grievous bodily harm, which magistrates now practically decided should or should not be tried at Assizes. But even these did not depend absolutely upon the discretion of the magistrates. The Grand Jury had a right to intervene, and if they had before them what they considered an important and serious case they could return whatever Bill they liked, and it was quite within his experience that a Grand Jury had demanded to have before them an indictment for a graver offence than the one submitted in the first instance. He thought that some mode might be found, not of defining what was a little burglary—for he had tried to do that and had failed—but of providing some security against the evil suggested and preventing any danger from the rash or foolish action of a magistrate.
  THE LORD PRESIDENT OF THE COUNCIL (Viscount CRANBROOK)suggested that a way out of the difficulty would be found in allowing magistrates to treat small cases of burglary as cases of housebreaking.
  Motion agreed to; Bill read 2a accordingly.

  LOCAL GOVERNMENT (IRELAND) PROVISIONAL ORDER (CARRICK-ON-SUIR) BILL [H.L.]
  A Bill to confirm a Provisional Order of the Local Government Board for Ireland relating to the town of Carrick-on-Suir—Was presented by The Lord Privy Seal; read 1a (No. 30.)
  House adjourned at a quarter past Five o'clock, till To-morrow, a quarter past Ten o'clock.