HL Deb 08 December 1915 vol 20 cc557-69


Order of the Day for the Second Reading read.


My Lords, this Bill also arises out of the circumstances connected with the war but is not limited by its duration. There are three distinct matters with which the Rill is designed to deal. The first is this. At the present moment, as your Lordships are aware, if a witness who has given his evidence on oath before a Court of summary jurisdiction is unable, either by death or by illness, to be present at the trial, his evidence—if it were given in the presence of the accused and upon oath and there has been full opportunity for cross-examination, and if the deposition is properly signed and attested—may be used at the hearing against or in favour of an accused person. At the present moment it is obvious that there are a number of people who might be called upon in Courts of summary jurisdiction who, between the preliminary hearing and the trial, would be absent on active naval or military service; and the first part of the first clause of this Bill provides that in such a case their absence on active naval or military service shall put them in the same position as if they had been subject to the disabilities which enable a witness's evidence now to be read. I cannot help thinking that this is essential to the proper administration of justice. If a man has given evidence here in a Court of summary jurisdiction and has been summoned to France it would be impossible to get him back for the trial, and it would be lamentable if it were impossible to use his evidence, which might be in favour of the accused although, as a rule, in a Court of summary jurisdiction the greater part of the evidence is evidence given for the prosecution. Clause 1 of this Bill is to enable a witness in such circumstances to have his deposition read on the hearing, if the Court consents. The Court has power to say that the circumstances are such that the deposition ought not to be read, but, if the Court consents, the evidence may be read just as if the witness were dead or absent through ill-health. I gave your Lordships an illustration of a witness summoned to France on active service, but it is not to be assumed that that is the only case the Bill would cover. It would cover all persons absent on active naval or military service wherever the witness might be. Of course, if the circumstances were such that the Judge before whom the trial ultimately took place thought that the witness could be, and there were sufficient reasons why he should be, brought to the Court, that might be a reason why he would refuse to let the evidence be read. But, subject to that, the evidence is to be read just as if the man were dead. That is the whole of Clause 1.

Clause 2 is a different clause altogether. It provides that where a preliminary investigation has taken place before a military tribunal as a preliminary to trial by Court-Martial and the evidence has been given upon oath the same rules and provisions shall apply to that evidence being read when the Court-Martial or the trial by jury occurs as are applicable where a man after a preliminary investigation by a Court of summary jurisdiction is ultimately tried by Quarter Sessions or Assize. It is to make this procedure apply just as effectively to Courts-Martial as it does now to civil Courts, and the importance of it cannot be over-estimated. Let me assume the case of a man being tried for spying, one of the most obvious cases for trial by Court-Martial. In those cases it would be a disaster if, when the evidence had been given on oath in the preliminary investigation, the man accused should be capable of being acquitted because the person who gave the evidence had died or was unable to travel owing to ill-health or other causes; and it would be equally a disaster if evidence could be given that established an alibi and the witness could not attend the trial and his evidence could not be used. Clause 2, therefore, provides that in those circumstances also the evidence may be used at the hearing. That is safeguarded in the same way that the Court before whom the trial ultimately takes place must consent to the use of the evidence. Clause 3 provides that absence on the ground that a witness is actively engaged in naval or military operations can be proved by a certificate signed by a secretary or assistant secretary of the Admiralty or Army Council.

Clause 4 deals with a different matter altogether. At the present moment, as your Lordships know, under the Documentary Evidence Act there are a number of official documents which are capable of being proved by the production of a certificate signed by the King's Printers. This clause extends that to Orders of the Army Council which had been omitted from the original Statute, and of course it is important that they should be now incorporated, because in the case of obtaining, say, pensions by false pretences or matters of that kind the Army Council might require documents to be proved at once, and unless the same facilities existed for their proof as for other official documents considerable delay, expense, and inconvenience might be incurred. That is the first part of Clause 4. The rest is to extend the Documentary Evidence Acts to Scotland and also to the Local Government Board for Ireland. Those provisions have not been unwelcome to the representatives of Scotland and Ireland in another place, and that may be a sufficient guarantee that neither Scotland nor Ireland objects to them. That is the whole of the Bill, and I ask your Lordships to grant it a Second Reading.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)


My Lords, I admit that I approach a Bill of this kind with a bias of dislike, because it is one of the emergency Bills which are always supported on the ground that they are necessary for the immediate conditions of the war. So far as this present Bill is concerned, however, subject to what I have to say, I think that the Lord Chancellor has shown that in order to promote the ends of justice it is necessary that there should be some provision as regards the evidence of soldiers or sailors who may be actively engaged on foreign service.

I think the Lord Chancellor was under a misapprehension in stating that this Bill was not to be of a temporary character. It is clearly of a temporary character as regards the first two clauses, which are really the important ones. In the first clause the provision is only to be enforced "during the continuance of the present war," and if it had not been for a limitation of that kind I do not think that anybody cognisant of the real conditions of criminal jurisdiction would for a moment assent to this Bill as a permanent feature of the administration of our Criminal Law in this country. Then Clause 2 deals with Courts-Martial—quite properly; I am not going to call that matter into question—in the case of offences against any regulations made under the Defence of the Realm Consolidation Act, 1914. I believe I am right when I state that all the Defence of the Realm Acts—and they have appeared in various forms—are in themselves temporary in character; that is to say, offences under those Acts come to an end when the war ends. As your Lordships are aware, the question has been raised in this House more than once what is technically meant by "the end of the war." I want to make it clear that I should not agree to the passing of this Bill, and I do not think it could have passed the House of Commons, if the provisions in Clauses 1 and 2 had been of a permanent character.

It is an essential condition of our Criminal Law that the accused and the witnesses shall be brought face to face and oral evidence given before the tribunal by whom the case is actually tried. Anybody concerned in criminal administration would say without any reservation that this is a most important matter of principle, and there ought to be no interference with it except for temporary purposes and under certain safeguards. Particularly if a trial is before a Judge and jury, the reading of a deposition is essentially a different thing from oral evidence. A tribunal like a jury, which is more or less, of course, an untrained tribunal, although directed by a Judge or Chairman, fairly easily apprehend oral evidence that is given before them, but it is a very different thing in regard to depositions. I should like to ask my noble and learned friend Lord Loreburn, with all his experience, whether he would not corroborate this statement—that in all judicial matters, and especially in criminal matters, it is of the first importance that the Court which has to decide should have the actual oral evidence before it.

There is another point which we have to consider. Depositions are very unsatisfactory in certain cases; they are badly taken and under conditions where they have not anything like the same trustworthy authority as oral evidence. I think it is a great safeguard that the depositions cannot be read in evidence under the powers of this clause save with the consent of the Court before which the trial takes place. That was a provision put in at the instance of the hon. Member for Cambridge University, Mr. Rawlinson, K.C., in the other House, and I think that, apart from that provision, there would have been a great chance of injustice being done in some particular case. Although I quite agree that a Bill of this kind may be necessary, the Lord Chancellor has not given us any statistics to show that in fact difficulty has arisen up to the present time. All I can say is that I have not heard of any difficulty in the Court with which I am acquainted. I want to say further that when this matter was before the other House the Home Secretary, who is responsible for this Bill, said that he had only heard of one case in which any difficulty had arisen.

Let me now say a word or two as regards the safeguards which I think ought to be introduced into this Bill. I should like to point out to the noble and learned Lord on the Woolsack—I indicated to him earlier in the evening that I should refer to this—that this is a Bill in which enactment is made by reference, and the reference so far as England is concerned is to the provisions of Section 17 of the Indictable Offences Act, 1818. In the first place I protest against legislation by reference in a matter of this kind. A Bill of this sort ought to be drawn so that the ordinary man could read and understand it; yet nobody could read and understand this Bill who had not the advantage of access to a law library. That in itself is a great mistake in the drafting of a Criminal Bill. But I go further. The Act of 1848 deals only with depositions given on behalf of the prosecution.


indicated dissent.


The Lord Chancellor shakes his head; but it may show that even people who are acquainted with matters of this kind and have access to law libraries go wrong when you have legislation by reference instead of legislation in clear and understandable words. In my opinion—I stand open to correction—the enactment refers only to depositions made on behalf of the prosecution. There is a subsequent Act—an Amending Act of 1867—which extends the same right to depositions made on behalf of the prisoner, but this Bill refers only to the earlier Act and not to the later Act. In my opinion the Bill as it stands does not give the reciprocal right to the prisoner to use depositions made on his behalf in the event of his not being able to call a witness owing to the latter's absence on foreign service. I am aware that this was discussed in another place. I intend to put down an Amendment upon this point when we come to the Committee stage. I do not want to be too positive in regard to a Bill drafted in the reference form, but I think I am right in saying that the Act of 1848 applies only to depositions on behalf of the prosecution. I am sure your Lordships would be of opinion that at least it ought to be made clear upon the face of the Bill that if depositions are to be read against the prisoner he ought also to have the right, in similar conditions, to have depositions read in his favour.

There is another point as regards the drafting of the Bill to which I should like to call attention. Power is given to the Court to withhold its consent from the reading of depositions under the conditions mentioned in the Bill. That is no doubt true. But in order that the prisoner may have a proper opportunity of having his views stated upon a matter of that kind reasonable notice ought to be given to him if it is proposed to read the deposition in the place of calling the witness before the jury, because unless you give that reasonable notice the prisoner has no chance of making an objection upon a point of this kind. Many of your Lordships have had experience of criminal administration. What does one notice? There are numerous cases in which the prisoner in the dock is really not in a position to look after his own interests. I have seen prisoners again and again in a state of consternation coming into the dock for the first time, and we ought to make certain that if we are going to alter the Criminal Law in this respect reasonable notice should be given to the prisoner in order that he may raise an objection and in order that the Court may give a proper decision upon it.

What I am saying is emphasised by this fact. It is not true of some other criminal systems, but it is true of ours by Common Law—subject to special cases to the contrary—that only one witness is necessary; so that you might have a trial under the conditions of this Bill where the only evidence against a prisoner is that which is read from a deposition taken before the committing magistrate. I should hope that in cases of that kind Judges with experience of criminal administration would say, "Well, this is rather strong, without any corroboration." But whatever might be done in a particular instance this Bill would allow a prisoner to be convicted of a most serious charge—such a charge even as murder—upon a written deposition alone, and without any other evidence of his guilt of any sort or kind being called before the trial tribunal. That is another point in reference to which I propose to put down an Amendment, not with a view of stopping this Bill, because I recognise that it has a true value as regards criminal administration, but in order to ensure that so far as our criminal administration is concerned it shall be kept as pure and as free and as fair to the prisoner so far as possible, after this Bill is passed, as it is at the present time.

When this Bill was in the other House numerous hon. Members raised the question that it ought not to be applicable to hearings in camera. I am not going into that question again. On a former occasion I expressed to your Lordships my view on hearings in camera—namely, that although in special cases it may be necessary to so hear cases, yet it should be carefully avoided unless the necessity is urgent. Upon that point I should like to read what the Home Secretary said in the House of Commons on Thursday last, because when I was addressing your Lordships upon this matter I made the suggestion that some responsible Minister ought to consider the question whether or not it was necessary to hear these trials in camera. This is what the Home Secretary said upon this point, and I am bound to admit it seems to me to carry out the views which I endeavoured at one time to express to your Lordships— I have actually sent round a circular, in view of questions put to me in this House a short time ago, and called the specific attention of those who preside in these cases to the circumstance that a trial in camera is a wholly exceptional method, and that even when it has to be resorted to for a particular piece of evidence that does not mean that it is to be resorted to for the whole trial; and that it ought always to be regarded as a course only to be adopted, first, where the prosecution solemnly submit that it is necessary in the public interest, and, secondly, where the tribunal is itself satisfied that in its discretion a portion of the evidence should be so taken. I quote those words because I think it is most important that the matter should be emphasised. Those who feel strongly about the hearing of criminal cases in camera have never denied that it might be necessary under present conditions to hear some cases or to take some portions of the evidence in camera; but I desire to emphasise most strongly what the Home Secretary said, that this is a wholly exceptional method, wholly alien to the spirit of our old traditional criminal administration in this country, and that it ought to be resorted to only where it is solemnly submitted as necessary in the public interest, and that even in those cases it ought to be limited to some exceptional bit of evidence if that is all that is required to be heard in camera as regards the public interest.

I dislike all these forms of emergency legislation. I am afraid I have not the fear in these matters which some people have. I think our old methods are good enough and give us sufficient safeguards, subject to an exceptional point here and there. Although holding that view, I do say that there is proper ground for a Bill of this sort provided that it is quite clear—and I thought it was clear before what was said by the noble and learned Lord on the Woolsack—that it is temporary only, that is an essential condition; and further that, subject to the essence of the Bill, every possible safeguard should be introduced that exceptional evidence of this kind due to exceptional circumstances should be only taken so as to safeguard the prisoner and to safeguard the administration of Criminal Law in this country.


My Lords, there are three respects in which this Bill requires notice. They have been adverted to by my noble and learned friend opposite. Therefore it would be superfluous for me to dwell upon them, but I must advert to them. The first is that this Bill takes away what has always been a priceless characteristic of the administration of Criminal Law in this country. I am aware that there are already some Statutes, carefully guarded, which admit of the reading in a Criminal Court of a deposition instead of the oral evidence, but having had considerable experience in the administration of justice I can say and do say most strongly that the value of a written document when you are trying a question of fact is incomparably inferior to the value of an oral testimony given by a man whose demeanour you can judge of, whose veracity you can form an opinion of from your own knowledge and experience, and who is liable above all things to cross-examination. It is the commonest possible experience in every Court of Justice that one story seems to be excellent and unquestionable until you hear a few questions put in cross-examination which very often result in its complete destruction. To my mind it is a very serious thing, although it may be necessary—and I do not wish to appear to be in any way cavilling at the statement of the Lord Chancellor—it is a very serious thing to make an inroad into that safeguard for freedom and for the, administration of justice. I think my noble and learned friend on the Woolsack will acknowledge that that is so. It is particularly so in the Courts in which I have chiefly had experience—namely, in the Common Law Courts, which include the Criminal Courts. I hope that Amendments will be put down in respect of that.

The second point is in respect of hearings in camera. That interferes with a characteristic feature of our Jurisprudence from time immemorial which has distinguished the hearing of cases in this country from the hearing of cases in many other civilised countries of whose history we have knowledge. The fact that justice has been administered in secret in foreign countries has done more than anything else to create distrust among tine people who dwell in those countries of its open and fair administration. Therefore I feel very anxious in regard to this. This is not necessarily a fatal objection, nor is the other a fatal objection; but these things ought to be considered, and I hope that clauses may be suggested which will indicate the anxiety of this House—which, after all, should always remember that it is the highest Court of Justice in the kingdom—not without real necessity to depart from our old-established custom.

My noble and learned friend opposite has referred to the clause which consists of legislation by reference. Legislation by reference is to me always odious and distasteful. I remember the noble Earl, Lord St. Aldwyn, once taking hold of a Bill relating to distraint, and, notwithstanding my not very strongly felt criticism, turning it inside out by introducing a series of fresh clauses. Those clauses had the same effect but consisted of the real words, stating what was meant so that anybody who read the Bill might be able to understand it. I do not know whether he is disposed to repeat the same experiment in connection with this Bill, but somebody ought to. To have legislation by reference in regard to a criminal Statute is a deplorable mistake. It could be perfectly easily set out at the end of the Bill itself, especially as it is a temporary Bill; and then those who are affected by the Bill would know exactly what it meant. I trust that Amendments will be placed on the Paper. But I hope that my anxiety, which I cannot help suspecting is shared by others, will not be misunderstood by the noble and learned Lord on the Woolsack as actuated by any wish to prevent fair play and justice with regard to charges of the kind to which the Bill adverts.


My Lords, I can assure the noble and learned Earl, Lord Loreburn, that I shall not misunderstand anything he says, or think for a moment that he is prompted by anything but a sincere desire for the highest purpose to which we can devote our energies—the proper and pure administration of justice. But I think that this Bill has been subject to criticism for faults which cannot justly be laid at its door. In the first place it is suggested that it ought not to contain any reference to previous Statutes which it desires to incorporate. Though I object myself to legislation by reference, this is surely the mildest form of the offence that could be imagined. What is provided is that Section 17 of the Indictable Offences Act, 1848, and sections of certain Acts in Ireland which are also referred to—the clause goes on to state what they are—which enable the depositions of witnesses in certain circumstances to be read as evidence at the trial shall, during the continuance of the present war, apply to depositions of witnesses who are proved to be unable to attend, having regard to the necessities of the public service, by reason of being actively engaged on naval or military duties. I do not think anybody could for a moment be under any confusion or doubt about it. A person who knows—we must assume he does know—what are the conditions under which depositions may be now read is told that added to those is the circumstance where a man is away on naval or military duties. I quite accept what has been suggested as to the desirability of saying that this Bill applies equally to depositions in favour of the prisoner as well as to those against him. But I cannot share Lord Parmoor's views about the Statute, because the Statute says in plain words that the justice before whom the first charge is brought shall "take on oath or affirmation the statements of those who shall know the facts and circumstances of the case," and shall put the same into writing. The persons who know the facts and circumstances of the case are not merely witnesses for the prosecution.


The Lord Chancellor will find that depositions on behalf of the prisoner were not taken until the 1867 Act was passed, and special powers were given to do it.


I cannot accept the noble and learned Lord's view, because the truth is that this Statute bound the justice to take on oath the statements of "all who know the facts and circumstances of the case." How anybody could say that the persons who knew the facts and circumstances of the case were only those who knew what was charged against the prisoner and not those who knew what was to be said in his defence is a thing which passes all wit. At the same time I am perfectly willing to accept any Amendment which will not confuse the Bill or destroy its efficacy and will enable this point to be made plain, as it should be. Neither the noble Lord nor I want to tire your Lordships with the construction of Statutes at this moment. The next thing the noble and learned Lord referred to was this—and again I cannot see why he lays this to the charge of this Bill. He says that the Bill will enable a man to be convicted on the written evidence of one person. I do not See that this Bill does anything of the kind, and I should be glad if the noble and learned Lord would tell us how it does.


By the Common Law of this country, except under special Statutes, one witness is sufficient. It might well happen that the one witness not being able to be present, his deposition would be read. In that case the deposition of one witness would be sufficient according to the Criminal Law of this country.


I am afraid I do not understand the noble and learned Lord. The reason why one deposition is read is not by reason of this Bill; it is by reason of a Statute passed many years ago. Indeed the noble and learned Lord's complaint is that the Bill incorporates what has already been passed by Act of Parliament. I fail to understand it.


The noble and learned Lord says he fails to understand my point. At the present time certain depositions cannot be read which under this Bill could be read. One of the depositions which, if this Bill is passed, could be read and now cannot be read will be sufficient to convict a prisoner of the most serious possible crime.


That has nothing to do with the point. What this Bill does is to add a new form of deposition to those which can be read now at the hearing. If that is the only point against it, then I think the Bill is free from reproach. Reference has been made to trials in camera. I am not satisfied that that is strictly relevant to this Bill, and I do not know that the two noble and learned Lords really suggested that it was, except in so far as the circumstance that in a certain case a trial might be heard in camera. There the contention is that the power of reading depositions should not be extended. Otherwise, of course, this Bill has nothing at all to do with cases tried in camera.


Amendments were suggested in the other House that hearings in camera should be excluded. That is how it arose.


That is another consideration. But speaking with some knowledge of what transpires in these cases and knowing full well the grave danger to which this country is exposed through the unguarded publication of matters that ought to be kept secret, anxious as I am to preserve in all respects the old traditions of our Courts, I say that at this moment the ordinary considerations do not apply. We are in face of a national peril and personal liberty must go by the board.

On Question, Bill read 2a, and committed to a Committee of the Whole House on Tuesday next.