HL Deb 20 July 1915 vol 19 cc485-93

Order of the Day for the House to be put into Committee, read.

THE LORD CHANCELLOR (LORD BUCKMASTER)

In asking your Lordships to resolve the House into Committee upon this Bill, I should like briefly to call to your recollection the reason which led your Lordships to grant a Second Reading to the Bill on June 30. I then pointed out to the House that the Bill was the outcome of the work of a Joint Committee which was, I believe, originally called into existence by the noble and learned Earl, Lord Loreburn, for the purpose of consolidating the Criminal Law. In the course of their work it became plain that if their labours were to be fruitful it was essential that there should be some simplification of the forms of procedure in criminal cases, and this Bill, which was designed for that purpose, was accordingly introduced and brought before your Lordships' consideration. When your Lordships granted the Second Reading of the Bill it was upon the express understanding that it would at once be referred to the Joint Committee for consideration. The joint Committee have considered the Bill and recommend certain alterations in it, one at least of which was designed to meet the objection taken by Lord Parmoor when the Second Reading was under discussion. These Amendments are now before your Lordships, and if you assent to the Motion that the House resolve itself into Committee on the Bill, I shall ask your Lordships to permit the Amendments to be taken together, unless any noble Lord thinks they are the proper subject of criticism or improvement. I may say that your Lordships' House will not be unprotected if such a course is taken, for I believe these Amendments have the approval of the noble and learned Earl, Lord Halsbury.

THE EARL OF HALSBURY indicated dissent.

THE LORD CHANCELLOR

Well, I hope they have the approval of the noble and learned Earl.

THE EARL OF HALSBURY again indicated dissent.

THE LORD CHANCELLOR

Then I regret they have not the noble and learned Earl's approval, because his authority is unrivalled and accepted by us all. But I believe I am at least right in saving that the noble and learned Lord, Lord Parmoor, has examined the Amendments with some care and is satisfied that they carry out his wishes in this respect. Put shortly, the object of this Bill is to accomplish two things, both of which I am sure will meet with your Lordships' approval. The first is to secure that when a man is charged with any crime the nature of the charge shall be stated in plain, simple, and formal language; the second is that when this is accomplished no trivial and no unsubstantial technicality should be permitted to place impediment in the path of justice. The Bill is designed for the purpose of carrying out those two objects, and I ask your Lordships to resolve the House into Committee on the Bill.

Moved, That the House do now resolve itself into Committee.(The Lord Chancellor.)

THE EARL OF HALSBURY

My Lords, I regret to say that I differ from the policy and in a great measure from the drafting of these Amendments, as well as from the original mode in which this Bill was framed. I confess I am amazed that the noble and learned Lord should have given us no reason why this Bill, which I will show your Lordships in a moment contains very serious controversy, should be introduced at this time. I am by no means disposed to raise any questions of conflict. I have carefully abstained for some months from saying anything which might in any way embarrass the Government either as it is or as it was a short time ago. But in the first place I should like to know, with regard to what is here proposed, what evil is being removed. Whatever may be said about the technicalities of the law, one object has been attained by the extreme rigidity with which the Criminal Law has been administered—that is to say, that a man on his trial should know exactly what he is charged with. That object has been attained, I think, in such a way that an objection to an indictment is hardly ever heard of in these days; and what appears to me to be a wanton passage into entirely new ground has been devised now in regard to matters which have been settled by centuries of decision. I do not mean to deny that there have been sometimes absurd objections taken, and sometimes as absurdly agreed to; but I think one must go a little deeper than to the drafting of the indictment with regard to that.

There is no doubt that the blood-thirsty nature of the Criminal Law at one time was such that the Judges were keen, in favorem vitœ, to give heed to objections which common sense would not recognise. Be that as it may, the decisions such as they have been so far as they affect the form of indictment, and so on, have now been going on for some centuries, and I think they have exhausted the ingenuity of anybody to find out anything new. But every one of those decisions has gone by this Bill. It would be impossible, I think, to go through the farce, as it would be, of stating in Committee the sort of objections that appear to me to be very serious indeed to some of the provisions here. That would involve long debate and some discussion as to what the law is. But let me take one example, and I will ask the Lord Chancellor to answer me. I find that instead of everything being plain and clear you have to measure the indictment; it is to be so many inches long, and so forth. What I want to know is this. Suppose it is an inch too long, or not long enough, as may well happen. Is that a fatal objection? If it is not according to rule which assumes the exact measurement which as I say the indictment must present then according to ordinary principles of Criminal Law the indictment fails. What is to happen? The ordinary powers of amendment, I need not say, are not applicable. Is the indictment bad or is there to be a new indictment, or is the person to escape conviction by his indictment being half an inch too short? What is to happen? We understand an Act of Parliament, and if anything is not in accordance with an Act of Parliament we know what happens. There is no amendment possible here. You must have a new indictment, and I should have thought a new finding of the Grand Jury, because the indictment is the finding of the Grand Jury. I shall have a word or two to say about that presently. But be that as it may, I want to know what is the effect of these provisions.

Again, you have not drawn a distinction between misdemeanour and felony. That is a very important distinction. It was more important, perhaps, some few years ago than it is now, because a conviction for felony involved a forfeiture; but in some of the sympathetic legislation that has been going on the forfeiture was abolished, and you have a man about to be hanged making his will now. That by the way. But you have under the present law a distinction such as has prevailed for centuries, and with very good practical effects—the distinction between felony and misdemeanour. And be it observed that you are not reforming the whole Criminal Law by this measure, nor, I think, going any way towards it; but the effect is that the distinction between felony and misdemeanour is got rid of and you may confuse the two; although the form of trial is different, you may have both a misdemeanour and felony comprehended in the same indictment. I see there has been a somewhat vain attempt to amend that anomaly by saying that all the rights shall exist—the right of challenge, for instance. As your Lordships are aware, the right of challenge exists in felony but not in misdemeanour. But I see a provision in this Bill that all the rights shall be the same although you may try both together. That, I suppose, is to add clearness to it!

I am not pretending to go through all the objections that occur to me. This is a matter which would really take months to go through and see the effect of. To my mind nothing could be more undesirable than to introduce new technicalities into the law. We have settled them now—as I say, it has taken centuries to do it—yet now you are going to have a new tribunal set up, and the Lord Chief Justice, with some person familiar with the Criminal Law to help him, and certain other persons are named, are to be given power of altering, of obliterating, of doing anything they please with the rules and to substitute other rules for them which are to come before Parliament. That is one of the modes in which you are going to simplify the Criminal Law. I am not either in health or strength able to go through all the objections that there are to this. But I cannot imagine anything more likely to introduce confusion, anything more likely to render the administration of the law extremely difficult. It is to be remembered that a great many Chairmen of Quarter Sessions, although I believe they do most admirably the work they have to do, are not trained lawyers. To find out whether a man is accused of a felony or misdemeanour now is easy enough, but you cannot find that out if you mix both up together. If anybody desired to have a mixture of the law in such a way as to render it absolutely confusing to persons not trained in jurisprudence I should put this forward as a specimen of great success in that department.

I am not, as I say, able to go through all the objections. But I want to have answers to the questions I have asked. What will be the effect of the indictment not conforming to the law in respect of the size of the parchment, or, indeed, I ought even to correct that, because it is not only that it is to be of parchment, but it must be either parchment or durable paper. I might add to my illustration by asking, suppose it is not on durable paper, will the indictment be bad and will the man be discharged, or will he be charged on a new indictment? And imagine the state of mind of a Chairman of Quarter Sessions when he has the objection put before him which I have now put—namely, that the indictment does not fill so many inches, as it ought. What is he to do? I put before my mind a Chairman of Quarter Sessions to whom that question is put by a defending counsel when his client has been convicted, and I should like to know in what way it can be managed, if it can be, so as to let justice be done. This is one of the fanciful theories that have been suggested to alter the whole Criminal Law without the least reference to those rules which centuries of experience have established.

EARL LOREBURN

My Lords, I am extremely sorry that the noble and learned Earl, whose authority in these matters we all regard with reverence, should be displeased with this Bill, but I cannot help thinking that his displeasure arises from a misapprehension. The point of form to which he adverts is susceptible of a very simple explanation. At present indictments are on parchment, and are lengthy and full of all kinds of antiquated and obsolete verbiage, and there was produced before the Committee a very recent specimen which was a foot in length, and an educated man would have taken a long time in understanding what it meant. What it meant was capable of being stated in one sentence; practically it was this, "You are accused of obtaining a certificate by telling a falsehood as to your nationality on June 1." What the Bill proposes is simply this, that "an indictment may be on parchment or durable paper and may be either written or printed, or partly written and partly printed" in order to make the thing quite sure, and in one sentence to tell the man, who is generally uneducated, what he is charged with in intelligible language. Then comes the sentence to which the noble Earl took exception. "Each sheet on winch an indictment is set out shall be not more than twelve and not less than six inches in length"—that is to say, not a tremendously long thing which you have to unfold as if it were an ancient manuscript—"and not more than fourteen and not less than twelve inches in width, and if more than one sheet is required, the sheets shall be fastened together in book form." That is all. Surely there can be nothing very wrong in that; and there is in this respect no alteration whatever in the law; nothing in the offence is changed in the least degree. It simply means that an uneducated man is to be told in short, simple English of what it is he is accused.

The other point to which the noble and learned Earl referred—namely, that there should be joined together for the future in an indictment a misdemeanour and a felony—is an alteration of the law, I think the only alteration of the law that is to be found in this Bill. I may be wrong, but I shall be corrected if I am. I think I am not wrong. All that means is that when a man has committed an offence which under the denomination of the ancient law falls within the category of felony and another of misdemeanour, or when it may be doubtful which is which, the two may be tried together. But provision is expressly contained in the Bill that nobody shall be permitted to suffer injustice or inconvenience, because power is given to the Judge, if he thinks fit, to postpone the trial and direct that these two charges shall be otherwise tried. I feel more regret than I can express in differing from the noble and learned Earl, whose authority I thoroughly respect and to whose judgment I very seldom find myself in opposition. But in this case there is no change in the law; there is no alteration in the punishment; there is nothing except enabling a man to understand in a short compass what it is he is charged with so that he may be able to confess, or to deny, or to disprove his guilt.

LORD PARMOOR

My Lords, may I say a word upon this Bill from the point of view of a Chairman of Quarter Sessions. I also regret to differ from the noble and learned Earl in the view he has taken of this Bill, and I desire to repeat what my noble and learned friend Lord Loreburn said with regard to the reverence which all lawyers have for the opinion of the noble and learned Earl on Criminal Law. But I think he has hardly noticed two matters which in my opinion are of great importance in this Bill. First of all, the rules are now made part of the Bill itself. Originally it was merely a skeleton Bill; and I think it is quite right—the Lord Chancellor referred to the objection which I took on this point on the Second Reading—that the rules should be enacted by Parliament as part of the legislation itself. Secondly, there is the power by the Rule Committee to alter the rules. At the same time a provision has been inserted in the Bill that any rule so altered shall be laid before the two Houses of Parliament for a certain number of days in order that the change may be criticised if any one cares to criticise it before the rule becomes law. That is an ample safeguard. You cannot deal with the Criminal Law in a better way than by allowing rules to be made by an expert Committee subject to the control of Parliament, and if they are made in any sense adversely to the general principles of our Criminal Law, they can be criticised in either House of Parliament.

The other matter to which the noble and learned Earl referred was this. He seemed to think that the prisoner would not know what he was charged with. If that were likely to be true, it would be the greatest possible criticism upon a Bill of this kind. I support this Bill exactly from the opposite point of view. I have very often seen the demeanour of a prisoner in the box when the present form of indictment is read and he is asked whether or not he is guilty. I consider that the main object of the Bill is that the prisoner shall know in the simplest possible language what the charge made against him is before the trial takes place. Personally I should oppose any rule in our Criminal Law which did not in the fullest sense protect the prisoner charged, in the same way as he is protected at the present time. I agree with what the noble and learned Earl said as to our system having been evolved from the extreme harshness of our Criminal Law a century ago; but I think the effect has been that we have evolved a system of procedure which is not only extremely fair in itself and likely to lead to the best results, but, what perhaps is still more important, which has the confidence of the people of the country generally. That is to say, there is a general feeling at the present time that under our system of Criminal Law it is highly improbable that an innocent man will be convicted. I think it is extremely important that that sense of justice should be maintained and increased if possible. I say again that I regret differing from the noble and learned Earl, Lord Halsbury, on a point of this kind, but I cannot help feeling that his fears may be exaggerated and that the safeguards in the Bill are ample.

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DONOUGHMORE in the Chair.]

THE LORD CHANCELLOR

I move that the Amendments proposed by the Joint Select Committee be agreed to.

Amendments moved—

Clause 1, page 1, leave out clause 1 and insert the following new clauses:

Rules as to indictments.

1. The rules contained in the First Schedule to this Act with respect to indictments shall have effect as if enacted in this Act, but those rules may be added to, varied, or annulled by further rules made by the rule committee under this Act.

Powers of rule committee.

2.—(1) There shall be established for the purposes of this Act a rule committee consisting of the Lord Chief Justice of England a judge of the High Court, a chairman of quarter sessions, a clerk of assize, a clerk of the peace, and another person having experience in criminal procedure, appointed in each case by the Lord Chief Justice.

(2) The rule committee shall have power from time to time subject to the approval of the Lord Chancellor, to make rules varying or annulling the rules contained in the First Schedule to this Act and to make further rules with respect to the matters dealt with in those rules, and those rules shall have effect subject to any modifications or additions so made.

(3) Any rules made by the rule committee shall be laid as soon as may be before both Houses of Parliament and if within forty days on which either House has sat since the rules were so laid before the House a petition is presented to His Majesty praying that the rules or any part of them may be annulled His Majesty may thereupon by Order in Council annul the same, and the same shall thenceforth be void, but without prejudice to the validity of anything done thereunder.

(4) The term of office of any person who is a member of the committee by virtue of appointment shall be such as may be specified in the appointment.

Clause 3, page 2, line 1, after ("for") insert ("both").

Clause 4, page 2, line 14, leave out ("they") and insert ("the Court")

Clause 4, page 3, Line 8, leave out from ("the") to the end of line 9 and insert ("trial had not commenced, and")

Clause 4, page 3, line 12, leave out ("alteration or extension") and insert ("enlargement").

Clause 5, page 3, line 19, leave out ("shall not") and insert ("may")

Clause 5, page 3, line 20, leave out ("any") and insert ("such")

Clause 5, page 3, line 23, after ("defective") insert ("as the Court thinks fit").

Clause 7, page 3, line 34, leave out ("made")

Clause 7, page 3, lines 36 and 37, leave out ("or relating to costs")

Clause 7, page 3, line 40, after ("charged") insert ("or otherwise affect the laws of evidence in criminal cases").

After Clause 8, page 4, insert the following new schedule: