§ LORD FITZGERALD,
in rising to ask the Prime Minister whether Her Majesty's Government will take into consideration during the coming Parliamentary Recess the question of constituting an effective Court of Appeal in criminal cases tried in the Superior Courts of criminal jurisdiction or at Quarter Sessions; and, if deemed expedient, present a measure to Parliament during the next Session to effect that object, said: I have to apologise for bringing this matter before your Lordships in relation to the constitution of a Court of Appeal in criminal cases—I mean a Court of Appeal upon the merits, but if your Lordships will refer to the Notice which I have put down you will perceive that it is not calculated nor intended to provoke unnecessary discussion upon the subject, and I do not at all intend to revert to the very prominent case which recently occurred in Liverpool, and which has forced upon the public mind the necessity of considering this question of a Court of Criminal Appeal. Your Lordships may have seen a letter of very considerable ability in the Times of Monday last. It is from Mr. Fletcher Moulton, an eminent Queen's Counsel, and he shows in it a great deal of scientific knowledge, and argues his case most logically. He says:—So long as the constitution of our Courts prevents all appeal in criminal eases, even of the gravest kind, it seems both just and natural that the results of such a trial as that of Mrs. May brick for the murder of her husband should be made the subject of close public criticism.I do not intend now to criticise or observe on that case at all, save to deprecate the renewal or continuation of what I may call tumultuous discussion and proceedings out of Court, calculated to bring the administration of justice 1298 into contempt, to withdraw from it the veneration and affectionate respect with which it has been ever regarded in England, and I will add also, if it will have any effect whatever upon the case of the unfortunate woman now in gaol, it may be an effect to her prejudice, and can do her no good. My Lords, the broad proposition cannot be controverted that there is no appeal whatsoever provided by the English law in criminal cases upon the merits. I use the expression "upon the merits," for I mean the merits both of law and fact; but perhaps it would be better to say that there is no appeal whatever upon questions of fact. The Judge at the trial may have gone wrong; he may have misconstrued the evidence; he may have misdirected the Jury; the Jury themselves may have taken the most unsound view of the facts of the case, and that unsound view may have led them to a conviction; but for all that there is no appeal; you can have no new trial; there is no mode of bringing the misdirection under control, or under appeal, and in fact (and it is a fact beyond doubt or controversy) with reference to criminal cases we have allowed life and liberty to depend entirely and unprotected upon the decision of the primary Court. I may remind your Lordships that though there is no appeal whatever on questions of fact, there is an appeal on questions of law; a twofold appeal, although in each instance of a very unsatisfactory character; but if that were the only subject of complaint, it would not justify me in coming forward on the present occasion, because, although the appeal in law is defective, yet the appeals on questions of law are very few, and are disposed of in the course of a year by two sittings, I think, for two days only, of the Court for Crown Cases Reserved. They are defective in this respect, that when the appeal is not by Writ of Error, it rests entirely in the discretion of the Judge whether he will reserve any question of the Court for the consideration of Crown Cases Reserved. However, confining my present observations to the absence of an appeal on the merits, I have heard it said that, notwithstanding that singular defect in our criminal jurisprudence, the whole thing has worked satisfactorily, and there is no necessity for the constitution of such 1299 a Court. If we look to the cases that have taken place, I think it will be found that that observation is not well founded, and that the contrary is really the fact. I may refer to one or two cases to show your Lordships the proceedings that take place, and how unconstitutional they are. In the ease of Lord Dundonald, in 1814, he was convicted of a conspiracy to commit fraud with three or four others, and he was sentenced to fine, imprisonment, and the pillory. I always thought that case a disgrace to criminal jurisprudence in England. In his autobiography he says—This vindictive sentence of the pillory the Government did not dare to carry out. My high-minded colleague, Sir Francis Burdett, told the Government that if the sentence was carried into effect, he would stand beside me on the pillory, and they must look to the consequences.The result of that intimation was that the Government, though anxious to carry out the sentence to the fullest extent, abandoned the pillory, and after a not very long interval, Lord Dundonald's innocence was fully established, not by the Home Secretary, but by independent inquiry. He was restored to all the honours of which he had been deprived, and I myself have often had the pleasure and the honour of seeing him in attendance upon the Queen as one of the officers of the Court. Another remarkable case was that of Mr. Barber, a solicitor, who was convicted of forging a will, or being a party to the forging of a will, and was sentenced to transportation. Four years afterwards he was permitted to return to England with a full acknowledgment of his innocence. In 1850 the House of Commons voted him, by way of compensation, the sum of £5,000. Now all that injury, and all that expense, would have been avoided if there had been a competent Court of Appeal upon the facts of the case. A case always referred to in reference to this desirability of a Court of Criminal Appeal is the case of Dr. Smethurst, who was convicted of the murder of Isabella, his bigamous wife. A Petition was presented to the Home Secretary of the time, and he instituted an inquiry; I believe he even took the step of an independent examination into the case by experts; but the result was to show that 1300 the whole proceeding against Dr. Smethurst had been a mistake; that his bigamous wife was not poisoned by arsenic as represented, but that she died of natural causes. His innocence was completely established to the satisfaction of Sir Cornewall Lewis, the then Home Secretary. I think the noble and learned Lord on the Woolsack was one of the counsel in the case, and he will remember that one of the ludicrous mistakes made by the Judge at the trial was to point out, as the motive in reference to which Dr. Smethurst was attacked, that he succeeded to all the property of the lady who was said to be poisoned. She did make a will in his favour, but it was after the illness had commenced which was supposed to be the result of poisoning; so that the view of the Judge that this was a very important feature in the case was that he first poisoned the woman, and then afterwards got her to make a will in his favour. All that would have been avoided had there been a proper Court to enter into and determine the case. Then, again, I may remind the noble Lord opposite of a case that occurred when he was Home Secretary, and which was known as the Penge murder. Five persons were convicted of murder, and left for execution. As to one of them, there was not a particle of evidence beyond that she had led an immoral life. There was nothing else in the case. Upon my noble Friend's examination she was at once—not reprieved, but absolutely discharged; and upon consideration of the remainder of the cases the four persons who where left by the learned Judge for execution, and without any hope whatever, had their sentences commuted, and they were sent to penal servitude.
§ * VISCOUNT CROSS
My noble Friend, I think, has not quite correctly stated the facts with regard to the last case that he mentioned. The woman who was reprieved was allowed to go on this ground. The question was whether it was murder or manslaughter—it was a case of killing by neglect, and I thought that it was a case of manslaughter. This woman was charged as an accessory before the fact, and she could hardly be guilty of being an accessory before the fact of manslaughter. It was on that ground that she was acquitted.
§ LORD FITZGERALD
However, I am quite right in stating that the sentences on the other persons were commuted, on the ground that it was manslaughter if anything, and not murder. But Alice Rhodes had no connection with the bad treatment which the woman received: she had no duty to perform towards her: she happened to be the paramour of one of the parties, and her previous life was the only circumstance upon which she was convicted as in conspiracy with the other parties. Possibly I may have fallen into error, and I am glad to have been corrected by the noble Lord, for I am only speaking from recollection as to what took place on the occasion. These, my Lords, are but three out of a hundred cases that I could have cited for your Lordships' information. It cannot be said that a system which allows of such cases is at all satisfactory; in fact, it has been for years condemned, and condemned by successive Governments. A Commission sat in 1878, composed of very able men. Lord Blackburn, I think, presided over that Commission; Mr. Justice Montagu Smith was another of its members; the present Mr. Justice Stephen was one also, and Lord Justice Barry, of the Court of Appeal in Ireland, represented Ireland upon the occasion. Their conclusion was unanimous, that this blot upon the criminal jurisdiction in England, which did not exist in any other civilised country, ought to be removed; and they actually went so far as to state in detail in the Report which was presented to Parliament the measure that ought to be taken for the purpose of remedying this crying evil. In addition, Sir John Holker, the then Attorney General, and Mr. Justice Stephen, between them prepared a Bill, which was presented to Parliament in 1878; and I believe again, in 1880, the Government of which Lord Herschell was Solicitor General took up the subject, but the Bill was not carried through. Recent circumstances have forced this question upon our attention, and it is in remarkable contrast that whilst life and property are thus left disregarded, and entirely at the mercy of the primary tribunal, we cautiously protect and regard the civil rights of property. I may instance to your Lordships that within the last year a case came before this House in which the whole sum 1302 in controversy between the parties was £11. No doubt it involved consequences beyond that, but not beyond that to the parties who litigated it. It commenced in the County Court; the County Court Judge gave the plaintiff a decree; the defendant appealed to the Divisional Court, and the County Court Judge was reversed. The plaintiff then appealed to the Court of Appeal, and the Court of Appeal decided in his favour. Again it was brought before this House; it was argued here for three days, and finally the noble Lords who had charge of the case were upon one point divided in opinion, but upon the merits they disposed of the case affirming the Judgment of the Court of Appeal. Again I may refer your Lordships to Indian cases. One of Her Majesty's subjects in India commences a suit in which the sum in controversy is 500 rupees; he is entitled to carry it through all the various Courts of Appeal that exist there, and finally to come to the Judicial Committee of the Privy Council; and sometimes he succeeds in reversing all that has gone before, and turning various defeats into victory. My Lords, the subject—I do not conceal from myself—is one of very great difficulty; but the difficulties are not insuperable; and all I am seeking now to get from the noble Lord opposite is an assurance that Her Majesty's Government will consider this question during the Recess, and, if they consider it practicable and advisable, that they will be prepared in the next Session to introduce a measure upon the subject. Let me for a moment consider what takes place under the present system when there is an appeal to Her Majesty from any criminal conviction. In some cases it is not an appeal for mercy, because an appeal for mercy, for leniency, for the reduction of a sentence, is one based on the supposition that the conviction is right; and there you go to the Queen in the exercise of her prerogative of mercy, advised by the Home Secretary, to either reduce the sentence or in some way to reduce the punishment, which you consider excessive, within more lenient limits. But there are other cases like the case of Dr. Smethurst and the case of Lord Cochrane, where the appeal was not for mercy, but was for the re-consideration of the whole case in 1303 order that justice might be done according to truth and right. And now let us see the anomalous proceeding that takes place. The Home Secretary then has cast upon him the oftentimes terrible responsibility of advising the Queen in those cases. He is not a Judge; he has not the powers of a Judge; he has no power to administer an oath in reference to the case: he carries on the inquiry—or, as I may call it, the re-hearing of the case—as best he can with the aid of the Report of the Judge before whom the trial took place; and when he does come to a decision, he advises Her Majesty upon the subject, and gives no reasons whatever. That proceeding appears to me to be anomalous, illogical, and, in some respects, unconstitutional; and I would substitute for it, if possible, the establishment of a Court of Appeal upon the facts and upon the merits, where, if a mistake had been committed, a new trial might be awarded, or where, at any rate, right might be done according to law and justice. The time seems proper for this. Public attention has been directed to the matter. You do not require any Commission or any inquiry. The materials have been collected, and lie broadcast. You will find them all in the Report of that Commission of 1878 and 1879. I believe that whilst there are difficulties to be contended with and encountered there is not in the public mind a shadow of dissent that the law of England should be, to some extent, altered so as to admit of this appeal. I referred to the Bill which was presented to Parliament in 1878. Probably the fault of that Bill was that it was too extensive and too ambitious. It endeavoured to deal with the whole subject at once, whereas what is required, probably, is a measure confined in the first place to capital cases or to cases of extreme gravity, and hedged round with every possible security. I see no impractibility and no very great difficulty in preparing or carrying a measure of the kind. It ought to be a Government Bill. It would be useless for a private Member of this House to attempt a measure so affecting the criminal jurisprudence—so weighty and so important. It can only be carried by the Government, and I must say that I think we have at present to guide our considera- 1304 tions upon questions of law, and Criminal Law especially, in the person of the noble Lord upon the Woolsack, a Member of the Government who is most competent to guide their Councils upon such a subject as this. His great experience and his willingness to deal with law reform have been amply proved; and I venture to predict that if the noble and learned Lord takes this matter in hand he will be able to propose a measure which will be generally acceptable to your Lordships. It has been said that compensation can be made in cases of mistake, and adequate provision can be made for those who have been wrongfully convicted; but there is a class of cases in which there can be no compensation. When life has been taken, when the individual who has been wrongly sentenced lies in a felon's grave, it is absurd to speak of compensation, and it is in that class of cases that it is my great anxiety to have some Court of Criminal Appeal established. I beg to ask the noble Lord the question which I have put upon the Paper.
§ THE LORD CHANCELLOR
I cannot but express my regret, notwithstanding what my noble and learned Friend has been good enough to say about myself, that this very important and interesting question should be at the present time the subject of discussion. I know very well from the calm and judicial temper of my noble and learned Friend that I could anticipate no intended allusion on his part to the circumstances of the case now occupying the public mind. At the same time I cannot forbear to point out to him that all people are not invested with the same judicial temper, and that, when he proceeds to point out the defects of the present mode of administering justice, his comments will have a wider operation than he intended. There is no doubt that such questions as these are not appropriately discussed at times of public excitement about them. At a time when we have seen jurors, witnesses, and even a Judge subject to unreasoning and even brutal violence; at a time when persons have assumed themselves to be competent to interfere or justified in interfering with the discharge of the most solemn and serious duty with which a human being can be invested—namely, the determination 1305 whether a fellow-creature shall live or die—when persons have felt it consistent with the due administration of justice that it should be so far interfered with, not only with the violence I have spoken of, but that even some of the witnesses should be followed from place to place, not because any imputation was made against their honour, or honesty, or desire to speak the truth, but because they were supposed to be witnesses unfavourable to the accused—I confess I feel considerable regret that it is at this moment my noble and learned Friend should think it right to raise such a question. There are other ways, too, in which resort is had to intimidation and insult, intended, I suppose, to aid the solemn and serious determination at which the Secretary of State has to arrive. In every newspaper the question of what the Home Secretary bas to do, has done, or is likely to do, is the subject of adverse and violent comments. I do say this is not the time to raise such a question here; I do deprecate the House being asked at such a time to consider and discuss such a wide alteration of the law as that referred to. When I turn from the particular case which appears to have given rise to the introduction of this subject, I am afraid I cannot agree with the facts on which my noble and learned Friend relies, or that the suggested remedy would have met the cases he cited, and that the decisions, if erroneous, would necessarily have been corrected by a Court of Appeal. The account of the trial of Lord Cochrane—both what was proved and, what was more important to Lord Cochrane, what he did not prove, but what if innocent he could have proved—raises in my mind a very serious question whether any Court of Appeal would have thought it right to reverse the verdict of the jury. No doubt it was a time of great political excitement; and I am not desirous of going into the matter so far as to raise questions the discussion of which might give pain to some who are still alive. I may, however, say this much about that case—the noble and learned Lord must not assume that all enlightened, educated, legal opinion concurs with him when he says there is no doubt whatever that Lord Cochrane's innocence was conclusively established. The noble and learned 1306 Lord referred to the case of Mr. Barber. I do not know whether my noble and learned Friend has taken the trouble to read that case, in which I doubt whether a new trial within six months or a year of the first would have ended in a different result. With respect to the case of Dr. Smethurst, Sir George Cornewall Lewis certainly did not treat it as one in which innocence had been established. I have no hesitation in saying I always thought, and I still think, that Dr. Smethurst was an innocent man; but as I was counsel in the case, my judgment is possibly biassed. Sir George Cornewall Lewis, in granting a free pardon, certainly did not treat the case as my noble and learned Friend suggested—as one in which the question of guilt or innocence was perfectly clear; on the contrary, in stating his final determination, he expressed the extreme difficulty and doubt which was raised by Sir Benjamin Brodie's opinion, which left it so doubtful whether the offence charged had been committed, that it was thought fit to advise the granting of a free pardon, and a free pardon was accordingly granted. With respect to Sir G. Lewis's own opinion on the general question, if my noble and learned Friend will refer to the speech he made in the House of Commons, he will find the subject most exhaustively treated, and his judgment was positively and absolutely against such a Court of Appeal, and adverse to any such change in the law, which, as he pointed out, would render it much more difficult, if there were two verdicts in the same direction, for the mercy of the Crown to be extended upon such doubts as he himself had had in Dr. Smethurst's case. I do not wish, for the reasons already given, to commit either the Government or myself to any abstract proposition on the subject. I only say it is a subject I would rather not discuss now with reference to any future alteration in the law. I trust that my noble and learned Friend will consider that as satisfactory an answer as he was likely to get from Her Majesty's Government.
§ LORD HERSCHELL
I entirely agree with my noble and learned Friend that it would be not only inexpedient, but wrong, to make any speech at the present time which would nave any bearing, direct or indirect, upon the particular case which is now agitating the public 1307 mind. But, at the same time, one must remember that in this country it too often happens that it is impossible to obtain attention to the necessity of any particular reform except when the public mind is excited on the subject and by reason of that excitement. If there is no such excitement, a reform of this character, which is not one likely to arouse any great popular feeling, is only too likely to be allowed to sleep, even if it be a desirable one. It seems to me that there are reasons other than those given by my noble and learned Friend—namely, the time of the year and the state of the House—which render it impossible to discuss the question exhaustively at the present moment. I would, however, like to say that it seems to me that this question of the expediency of establishing a Court of Criminal Appeal is one which might well be considered independently of and without reference to the case now occupying public attention, and for this reason, that those who differ diametrically in their views of this particular case may yet be agreed that it would be better if some tribunal existed which would render possible a review of criminal cases. Such a tribunal might go far to arrest, or at any rate diminish, those manifestations of opinion to which the noble and learned Lord has alluded. I do not mean to say that it would be likely to get rid of such manifestations altogether, because there are many persons who would be quite as ready to criticise the decision of a Court of Appeal, however ably constituted, as they now appear to be to criticise, often with very little knowledge or consideration, the decision of a Judge and jury. I certainly entertain the view most strongly that any decision of a Court of Justice, whether it be the decision of a Judge and jury, or of any other tribunal, may be rightly made the subject of public criticism. It is the right of the public to criticise. But those who undertake the task of criticism have a serious duty incumbent on them to be very careful to inform themselves as to all the facts, and exhibit that modesty and self-control which every one should exhibit who differs from those who have seriously considered and solemnly decided any question. While I admit this right of public criticism, I must say that a good deal 1308 of language has been recently used which I must unite with my noble and learned Friend on the Woolsack in deprecating. There appears to have been in the minds of some persons a difficulty in distinguishing between criticism and abuse. These persons, possibly more wisely, possibly more foolishly, have arrived at a different conclusion to that arrived at by those who decided this case, and they have on that account indulged in condemnation, execration, and abuse of them, thus exhibiting a state of mind very far removed from that which can produce any wholesome, and useful, and sound criticism. I do not propose to say more than a word or two on the subject that has been brought forward. I have long thought that some change in the direction suggested was necessary and desirable. I admit the difficulties of the question; but it has always appeared to me to be indefensible that while in civil cases, however small, there should be a right of appeal, in criminal cases there should be none. I do not, however, share the view apparently entertained by my noble and learned Friend that the existence of such a Court would prevent the occurrence of erroneous convictions. There are cases in which wrong convictions are obtained, but I believe that this occurs but seldom. I have had a good deal of experience in Criminal Courts, and have watched the administration of justice there with some care, and I believe that it is but seldom that there are wrong convictions, though some undoubtedly there are. But I do not believe that if you had a Court of Criminal Appeal you would always set right these wrong convictions. In many of these cases, upon the materials before the Judge and jury, the conviction was right and would have been affirmed by any Court of Criminal Appeal that might have been established, and it is only by reason of circumstances that afterwards come to light that we learn that there has been a miscarriage of justice. It would, therefore, be altogether misleading to hold out the hope that any Court of Criminal Appeal could secure that in no case should an innocent person be punished. But there are cases where such a review probably might, I believe would, lead to the setting aside of a wrong verdict. In some of the cases to which my noble Friend has re- 1309 ferred I am by no means certain that, if the conviction had been reviewed at the time, the conviction would have been altered. I do not think that it would be right to expect as much from the creation of a Court of Appeal as appears to be expected by my noble Friend. At the same time, for the reasons I have given, I hope that the matter will be seriously considered by the Government during the Recess, because undoubtedly there is a widespread feeling that it is not just that in the administration of our Criminal Law alone should be the one decision which is incapable of review, and I believe that any solution of this case with due and satisfactory safeguards would give a general feeling of satisfaction and security to the community.
§ * VISCOUNT CROSS
My Lords, during the time that I had the honour of holding the office of Secretary of State for the Home Department my attention was naturally enough called very much to this question, and I shall be prepared to state my views to your Lordships when the matter comes up for discussion; but I agree with my noble and learned Friend on the Woolsack that this is not the best opportunity that might have been chosen. I merely rise for the purpose of making two observations. I quite agree with the noble and learned Lord who has just sat down that whatever Court of Appeal may be established you must not expect too much from it. I am not at all certain whether prisoners do not get better treated in the way of getting their sentences remitted or reduced under the present system at the hands of the Home Secretary than they would receive from any Court of Appeal. The Secretary of State is always guided by the view that considerations of mercy, so far as they can be resorted to consistently with justice, should not be lost sight of, and prisoners get the advantage of this view, which they would not get from a strictly legal Court of Appeal. The only other observation I wish to make is this—that whether a Court of Appeal is established or not, it will be absolutely necessary that the prerogative of mercy in the Crown should still be maintained, and not simply as to the diminution of punishment as suggested by the noble and learned Lord who brought forward this discussion, but also as to the question of innocence or guilt; because there is no 1310 doubt that it does sometimes happen that, perhaps years after the supposed offence has been committed and the man has been convicted, something is brought to light which shows that that conviction is an error which no Court of Appeal could by any possibility have taken consideration of, and for which there is no remedy except in the prerogative of mercy which must rest in the Crown administered on the advice of the responsible Minister at the Home Office. I know that there is a feeling that that administration of justice by a single Minister is not satisfactory, but in the nature of things it must remain, and the principal reason of my rising to address your Lordships was that I might correct a feeling which is wide-spread upon that point. I think it ought to be clearly understood that, Court of Appeal or no, the exercise of the prerogative of mercy by the Crown must be maintained for the benefit of the liberty of the subject.
My Lords, the misfortune of the present day is, that the evidence for the prosecutor is published; and perhaps for two or three days the whole public are judging the case beforehand, which is certainly prejudicial to the prisoner. My brother has always sat later than almost any other Judge in order, as far as possible, to avoid this. Speaking to me about a Court of Criminal Appeal he said that the noble Viscount who has just sat down was the best Home Secretary that he had ever had to deal with. I have witnessed the struggles of the present Home Secretary in the case of an unfortunate Jew, who afterwards confessed that he was guilty. The pressure that was put upon the Home Secretary was something extraordinary; and I am quite certain that until we can see clearly a much better system than the present, we had much better not cast a slur upon the existing authority. I am quite sure that if the present Home Secretary will consult with the noble Lord and with Lord Cranbrook, who formerly held the same office, you would have a better Court of Criminal Appeal than any formal Cour de Cassation could possibly be.
§ LORD FITZGERALD
I know I am not in order in again speaking, but I am sure your Lordships will give me indulgence to say a word or two in what 1311 I may call self-defence. I commence by saying that I agree with every word that has been spoken by Viscount Cross. Now, my noble and learned Friend on the Woolsack has thought it necessary to read me rather a severe lecture for the indiscretion I have shown upon this particular occasion. He seems to have forgotten that I commenced by deprecating any discussion of, and that I told the House that I should not make a single observation or comment upon, the case that now occupies public attention save to deprecate the tumultuous proceedings which have taken place, which were injurious to the very unfortunate person whom they were intended to serve. And all through the course of the few observations that I made your Lordships will recollect that I adhered to what I said at the commencement, and not a word dropped from me in reference to the case now pending. My noble Friend has said that discussion of any kind upon the present occasion is indiscreet. Now, my notice was put upon the Paper on Monday last; and the noble and learned Lord knows me well enough to know that if he had conveyed to me the slightest hint that in the opinion of Her Majesty's Government, or in his individual opinion, the discussion was injudicious, I should have been the last one to press it forward. I should have left everything that I have said unsaid, and withdrawn the notice I had given. But I received no such intimation. I cannot conceive, notwithstanding all that I have heard from my noble and learned Friend upon the Woolsack, that I have been guilty of any indiscretion. My question points, not to the present but to the future—to something that is to be done by the Government during the Recess in order to remedy what is a grave and patent error. I wish only to add that the answer of my noble and learned Friend upon the Woolsack on the part of the Government has been so highly unsatisfactory—holding out no hope even of consideration—that, driven into a corner, if it become necessary, and should I be (to use an Irish expression) "to the fore here," I will even undertake the introduction of a Bill myself on the subject, though possibly I will receive little support from Her Majesty's Government.