HL Deb 28 February 1923 vol 53 cc155-83

Order of the Day for the Second Reading read.


My Lords, I rise to move the Second Reading of this Bill. It is the first of the legal Bills referred to in His Majesty s gracious Speech. It is not a Bill of a sensational character, but if it commends itself to Parliament I think that a useful and practical piece of work will have been done. The Bill is founded, as your Lordships know from the Memorandum, partly upon the Reports of some Committees which were appointed to consider questions of procedure in criminal cases. One of these Committees was a Committee presided over by Mr. Justice Horridge, and appointed to advise how the period of detention in custody of prisoners awaiting trial could be reduced. That Committee made two principal recommendations, to which effect is given in this Bill.

First, they recommended that justices, when committing for trial, should be authorised to commit to any convenient assize or quarter session, although it might not be upon the same circuit, or even in the same county. For that purpose it is necessary to alter the old law of venue, and we give express power to commit to some town where an assize is being held though in a neighbouring county. Some illustrations of what the effect would be are given in the Report of the Committee. They say: As an illustration, we may cite the case of a prisoner who is committed in Buckinghamshire in June for trial at Assizes; such a prisoner, being too late to be tried at the Aylesbury Summer Assizes, which are held in May, is now kept awaiting trial till the Autumn Assizes in October;— that is four months— but if effect is given to our recommendation, he could be tried at the Birmingham Assizes in July. Similarly a prisoner, who is committed in Worcestershire too late for trial at the Worcester Assizes, could be tried at Birmingham Assizes, which are hold six weeks later, instead of waiting in the ordinary course three or four months for the next Worcester Assizes. A prisoner who would ordinarily wait over two months for trial at Birmingham Assizes could be tried six weeks earlier at Worcester. Your Lordships will see that a very substantial time would be saved during which the prisoner would, but for this enactment, have been in custody awaiting trial. If such a man is kept so long, and afterwards acquitted, there is a very serious miscarriage of justice. The provision with which I have been dealing is in Clause 8 of the Bill.

The second recommendation of that Committee was that the justices should have power to commit persons charged with certain offences which are now triable only at assizes, to quarter sessions for trial. Of course, quarter sessions are held at more frequent intervals than the assizes. The effect will be that these cases will be tried much earlier than they would otherwise be, and there will be a shorter period of detention. The offences are very carefully selected by the Committee as offences which are suitable for trial at quarter sessions.

To these recommendations another Committee, over which the Director of Public Prosecutions presided, added this recommendation, that there should be power to try summarily at petty sessions certain other offences—minor offences—which are now triable only on indictment, that is to say, at assizes or quarter ses- sions, and so both relieve quarter sessions and save delay and expense to the county. That recommendation is given effect to in Clause 2 of the Bill, and the list of the offences in question will be found in the Second Schedule. I should like to add that that Committee called attention to the fact that the summary jurisdiction of magistrates has effected a very great improvement in our administration of justice. They point out that about 43,000 prisoners were dealt with summarily in the year 1919 for indictable offences only—apart, of course, from the many other cases which were dealt with, which were not otherwise triable on indictment. They point out also that an appeal is permissible to quarter sessions in every case except where a person pleads guilty, and that out of about 21,000 persons who were convicted and sentenced for indictable offences only nineteen appealed against their conviction. I think that shows, as the Committee say, that the courts of summary jurisdiction play a most important part in the criminal procedure of the country and that, generally speaking, their decisions are accepted. That recommendation also finds its place in the Bill.

Apart from that suggestion of the Bodkin Committee, the second Committee to which I have referred, we make a large number of proposals for the amendment of criminal procedure with a view of saving time and expense. Most of them are of a somewhat technical character and I do not propose to trouble the House with them at this period of the Bill. No doubt many of them may require discussion in Committee. But the short effect of them is to facilitate the trial of prisoners either at quarter sessions or at petty sessions.

There are only two further proposals in the Bill to which I should like to call the attention of the House, both of them, I think, matters of real importance. The first is a proposal in Clause 3 to abolish the grand jury at quarter sessions. The grand jury is a very ancient institution. At one time all indictments—all charges, indeed—must have come from the grand jury for the county; all bills were presented to the grand jury and the charge of the Chairman of the Quarter Sessions to the grand jury was one of the events of the year. There is a tradition in my county of Surrey that on one occasion the Chairman charged the grand jury for three consecutive days on every question under the sun before he dismissed them to their duties. The charges are now quite short and that which is important is that substantially all the cases which now come before quarter sessions have undergone a careful examination by magistrates before the persons charged are committed for trial. That being so, an investigation, generally of a somewhat summary and cursory character, by the grand jury at quarter sessions is really no longer required.

The grand juries were suspended in war time with a considerable saving of expense to the country. It is said that the saving in London alone was from £10,000 to £12,000 a year, and what is, I think, more important was the very great saving of time to those gentlemen who would have been called to serve on the grand juries. So far as I know no harm resulted. When the war came to an end that suspensory measure came to an end, and the question of continuing it arose. The matter was referred by the then Lord Chancellor to the Judges. He found that the opinion of the majority of the Judges was in favour of the continuance of grand juries at all events at assizes; but they were not so sure about quarter sessions. In view of the opinion of the Judges I do not propose in this Bill to deal with the grand juries at assizes, but to leave them exactly as they stand. There is greater need, or possibly greater need, for them at assizes. The offences which are there dealt with are of a graver character, speaking generally, than those dealt with at quarter sessions. The grand juries at assizes are charged by Judges of the High Court, and I think that the burden on grand juries is not so great at assizes as it is at quarter sessions.

Many of your Lordships will know that the grand jury at the county assize is not so much summoned as invited to attend that particular county function. Most of the grand jurymen are magistrates, who are quite prepared to go and perform that service for their country. That is not so at the Central Criminal Court or at some of the greater cities in the country, where, I believe, the burden of service on the grand jury is severely felt. Still, speaking generally, it is true that the burden is not so heavy in the case of a grand jury at assizes as it is in the case of the more frequent attendance at quarter sessions.

With regard to quarter sessions, I venture to say that the time has come when grand juries need no longer be summoned. If I may mention my own experience, I was for nearly twenty years Chairman of the Quarter Sessions of my county and for ten years Recorder of a borough, and throwing my mind back I cannot remember any occasion on which the absence of the grand jury would have had any prejudicial effect upon the administration of justice. There were, of course, some few cases in the whole of that time in which I recommended the grand jury to throw out the bill; that does happen now and again; but it would have been just as easy when the case was called on before the Court, to give a hint or to say something to counsel for the prosecution which would have had the effect of the prosecution coming immediately to an end. For the sake of the very few cases in which a bill is properly thrown out, I do not think it is worth while to keep the whole system of grand juries in the counties alive. The cost is heavy both in money and time. I have received, and the Secretary of State for the Home Department has received, a very large number of protests from grand juries against their being summoned. I will only read a few. The first, from Herefordshire quarter sessions, is in these terms— We, the undersigned, being members of the grand jury summoned to Hereford this day, desire to make a strong protest against the waste of time occasioned by calling so many business men, some from remote parts of the county, to fulfil an office which in our opinion now serves no useful purpose. We therefore beg to suggest that the calling of a grand jury for quarter sessions be discontinued and ask that this our presentment be forwarded to the proper quarter. Then there is this one from Shropshire— Resolved that the grand jury assembled for the Quarter Sessions of Shropshire on the 3rd January, 1922, unanimously desire to represent respectfully to the proper authorities that in their opinion the time has arrived when the institution of a grand jury in connection with quarter sessions might be discontinued without detriment to the course of justice. Let me give your Lordships one more. This is from the county borough of Croydon— That the grand jury sitting at Croydon Quarter Sessions on Friday, 6th January, 1922, regrets that the system of grand juries has been resuscitated and is of opinion that great waste of time and expense is thus needlessly incurred. I have a list of more than forty similar protests from grand juries at quarter sessions, and I think that a strong case is made out for the discontinuance of grand juries at quarter sessions.

I will only add that it has sometimes happened, no doubt, though quite rarely, that an original bill has been presented to a grand jury without previous investigation by the magistrates. That can be done, as your Lordships know, in certain very exceptional cases. We do not in the least propose to abolish that power, but we provide in the Bill that those bills shall be presented at assizes instead of at quarter sessions; so that the system will go on, but under revised conditions. I think your Lordships will come to the conclusion that that provision well deserves your very careful consideration.

There is one other matter in the Bill to which I desire to call your Lordships' attention and that is Clause 24, by which it is proposed to abolish a presumption which now exists in our law. It is the presumption that an offence committed by a wife in the presence of her husband is committed under the coercion of her husband. That presumption is a very old one, and in the case of all felonies other than murder and treason and all misdemeanours, the mere fact that the wife committed the offence in the presence of her husband is held to give rise to the presumption that she did it under coercion and, therefore, must be acquitted of any charge in connection therewith. There have been several cases, some in recent times, in which the Judge has felt himself bound by that rule to direct the acquittal of the wife of some offence charged against her. I do not say, it would not be right for me to say, that in those cases the jury, if they had been free to express an opinion, would have convicted the woman; but I am sure from the language used by the Judges in some of those cases that they, at all events, would have preferred that the matter should have been left to the unfettered decision of the jury.

This presumption ought now, I believe, to come to an end. In my view it has no relation to the realities of life to-day. The presumption that every husband beats his wife, and that every wife goes in terror of her husband and would commit any crime rather than disobey him, if it was ever true, is not true to-day. Not every wife is a Lady Macbeth, but, speaking generally, I think that wives are free agents, and the question of their guilt or innocence ought to be considered on the facts and not be subject to such a presumption. The Criminal Code Commissioners, a very strong body, in their Report upon the Draft Code of 1878, recommended the abolition of this presumption, and that great authority on the Criminal Law, the late Sir James Fitzjames Stephen, in his well-known digest of the Criminal Law, said— Surely as matters row stand and have stood for a great length of time, married women ought as regards the commission of crimes to be on exactly the same footing as other people. The Committee recommend the abolition of the whole doctrine of coercion in all such cases.

I must add this. Mr. Justice Avory's Committee, which dealt with the matter, proposed to go rather farther than I go in the Bill. They recommended not only that the presumption should be abolished but that the whole doctrine of coercion by a husband as a defence for his wife should come to an end. I am not quite sure about that. I am not sure that where actual coercion is proved that should not continue to be a sufficient defence for the wife in nearly all cases, as it is to-day. I should be very glad indeed to hear what members of the House who have experience of the law on this matter say upon that point. Subject to what may be said, I think for the moment the best course will be to abolish the presumption, and for the rest to allow the present law to take its course. Those are the main proposals contained in the Bill which, I think, as a whole, will commend itself to your Lordships' favourable consideration.

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


My Lords, with the general purpose of this Bill I am in entire agreement. The simplification and expedition of criminal trials is a matter of very great consequence, and I think, so far as I can follow them, that the provisions of this Bill will advance our jurisprudence a very considerable way in that direction. There are, however, one or two matters which the Bill contains that I feel need even more public comment than was given to them by the noble and learned Viscount on the Woolsack. I refer more particularly to the section which provides that a man who has pleaded guilty of an offence before a magistrate should, none the less, be able to appeal. I regard that as a very valuable provision indeed.


He may appeal against sentence, but not against conviction.


If he cannot appeal against the conviction I shall take an opportunity, if I can, of moving an Amendment to that effect, because at the present moment I think many of your Lordships must be very well aware that there are quite a number of people in London who allege that they have been induced to plead guilty to offences in the hope and belief that thereby the matter would not receive the attention of the newspapers, and then they have found that the charge has been published on the following day and they have been ruined for life. There was a case of that kind not very long ago, in which a man was charged with accosting women in Piccadilly Circus. He was brought up for trial and was told, so he says, that it was a matter which would go through very quickly if he merely pleaded guilty, that he would be fined a few shillings, and that the matter would end. He followed this advice, but found that owing to his position his name was in the newspapers the next day. That man, who held a position of no little consequence, was ruined for life.

It is perfectly easy to say that you must not assume that a young man would do anything so foolish as plead guilty to a crime that he had not committed, but I think it is very unwise indeed to imagine that a young man of twenty-three or twenty-four will bring to meet such an ordeal as a charge like that the wisdom and experience that comes from years. He will be overwhelmed with the shock of the charge. He will be scorched at the mere thought of the shame of the disclosure. He will believe, and not altogether without reason, that whether he gets off or not, if the matter is published it will remain against him to the end of his days, and he may very easily be induced to plead guilty in the hope that thereby the matter will pass in silence. I think that in those circumstances he ought to be at liberty to appeal not merely against the sentence but against the conviction itself. I am quite unable myself to say how far any of the statements that must have come to the ears of many of your Lordships are or are not true. I only know that they are not infrequently made, and it is impossible for anybody to test their truth without the process, which I think is right, of having a further trial if the person makes out a case for it. That is all I desire to say upon that point, which I regard as one of great importance.

The next point about which I wish to ask arises on a clause of rather a remarkable character which gives the right to search premises if there is any information to the effect that there are kept upon the promises indecent or obscene articles that are to be sold, or lent on hire, or dealt with for the purposes of gain. What I am anxious to know about that is what is meant by an indecent article. There are a large number of surgical articles that might very well be regarded as indecent, and there may be a number of them sold in obscure and even unpleasant shops, but I should not be very willing to support a clause to enable a search for any article that was called indecent to take place on this information, and then to have the articles destroyed unless it were found that they were not indecent.

I say honestly that I do not quite know what is meant by an indecent article. I do know what is meant by an indecent book or picture, but I do not know what is meant by an indecent article, and I think that some greater care should be given to the consideration of these words lest they be used for purposes for which I trust they are not intended. One of the most obvious of all the class of articles that would suggest themselves, especially in relation to events that are now transpiring, would be articles that were intended to prevent conception. I certainly should not be prepared to support any clause that enabled articles of that character to be searched for, seized, and destroyed on the order of a police magistrate.

Let me now turn to the only other matter upon which I desire to say a few words. It is a question involved in Clause 24. I must say that I think it is being dealt with very lightly. What is the history of this matter? From times long antecedent to the Conquest right down to the present time, it has been a rule of law that if a woman commits a crime in the presence of her husband she shall be assumed to be committing it under the result of his influence, and consequently shall not be independently convicted of the offence. First of all, it is clear that a woman who commits a crime in the presence of her husband must at least do it with his connivance and consent. No one can doubt that. The question is whether you ought to assume that she is acting under his direction. This law is not based on foolishness; it is based on experience, and on something like 1,100 years of wisdom, and until quite recently I do not believe there has been any objection raised to it.

What has happened, of course, is that a case that recently occurred—to which I will not particularly refer, owing to my anxiety to avoid giving pain to people who have already probably suffered more than enough—caused people to desire that a woman should be punished as well as her husband, probably believing, though they knew nothing whatever about it except what appeared in the Press, that the woman was equally responsible, even if, indeed, she had not been the prime mover in the matter. Then they said: "Oh, it is a shameful thing; here is this man sent to prison and the woman is not." I do not believe that any case has been made for this clause. What are the cases where it is suggested justice has miscarried because this rule exists? The idea that you must look merely to physical violence, which is what the learned Lord Chancellor suggested, is to my mind quite away from the point. It is not the physical violence, it is the personal influence that the man exercises over his wife, and to deny that such a thing exists is to deny one of the strongest of all influences in the world. Anybody who has had any experience of law will agree with me that again and again you find not merely women but men who are so entirely under the influence of others that it is very difficult indeed to say that they have free will of their own.

In the case of women in the presence of their husbands it is a very sound rule of conduct on which to proceed, and it is ridiculous to imagine that you can test this matter by trying to convey the relationship of any one of your Lordships with your own wife. That is not the relationship you have to consider. You have to consider the position of those women, the greater part of the population of this country, who still live under conditions in which they are in the habit of obeying their husbands and doing what their husbands desire them to do. I know it is thought that all this has been altered by recent legislation which has put women in a position of independence. You cannot change a woman's nature by giving her a vote, or by enabling her to sit on the Bench, or by all the legislation you have passed recently. Woman's nature will remain exactly what it was before, and if for over eleven hundred years the people of this country have believed that that nature is of such a character that in the presence of her husband the crime she will commit will be a crime committed under his influence, I see no reason why we should alter it.


My Lords, I should like to take a little more time before assenting to the three criticisms made by my noble and learned friend. Take that with which he dealt last; it is surely hardly a question of getting rid of the coercive effect of the husband's presence. What is proposed is that it should be left to the jury or the Judge to say whether there has been any coercion or not. If the Bill passes, that will be the effect of that clause; and surely it is right. It has been the opinion of Judges in recent cases which they have tried, and it commends itself to common sense. I should like, therefore, to have a little more time before assenting to any step which my noble and learned friend might propose to take on that clause.

Then, on the question of an appeal against the substance of the conviction of the magistrates as distinguished from the sentence, surely it is rather insufficient ground to point out that some young man has pleaded guilty when he ought not to have pleaded guilty. When people plead guilty, it is usually for a sufficient reason. An innocent man does not plead guilty, even on the advice of his solicitor, and when it has happened that I have looked into the case, I have generally found some explanation which pointed to a different inference. It is most important that there should not be too great a multiplicity of appeals in these matters, and I am not prepared to multiply them merely for the sake of avoiding injustice in an individual case. Therefore, I think we shall have to be careful before we go further than the Bill proposes.

As to his criticism with regard to indecent articles. I do not think there is the smallest chance of the police interfering for the purpose of taking away articles which are for a genuine medical purpose, however questionable, but there is a great chance, as the law now stands, that they are hampered in looking for a number of other notoriously indecent articles which are on sale in the back parts of certain shops and which the public use to the public detriment. It is well that there should be a power of search so that these things, which are perfectly well known to the police, may be within their reach.

As for the rest I do not take the view that the Bill is merely a fasciculus of small changes. There is a principle on which I congratulate the Lord Chancellor. He is really trying in this Bill to get rid of the rigidity of the present system due to local considerations. I am speaking now of the power of sending cases for trial in localities other than those to which the old traditions of the common law assign them. The Bill is valuable in these respects—(1), Assize cases should be sent to quarter sessions when it is proper and obviously right that they should be so sent; (2), it is in many instances right that cases which are at present for technical reasons considered at assizes or quarter sessions should be dealt with by magistrates; (3), the power of sending a prisoner to be tried at some other assize court or quarter sessions than the one which the law prescribes at present is very desirable, but I feel that in this matter the Lord Chancellor ought to go further.

Successive Lord Chancellors have wished to get rid of the multiplication of assize courts and circuits. There are so many places, however, which have not only by tradition a Red Judge, but also a local Member of Parliament whose voice is potent in the other House, that successive Governments have shrunk from dealing with the question of the redistribution of assize courts and diminishing their number because of the opposition in Parliament. Sooner or later it will have to be dealt with. It is no possible use to the public that a Judge should waste his time by going to a court where he is bound to go, but where there are no cases for trial. Far better to try them in a central place and have two Judges sitting if necessary in order to dispose of the business. But the Lord Chancellor, by force of circumstance, is compelled to stop short of that because of the opposition in those boroughs which have a Red Judge and a local member. That being so, I can quite understand the reason why the Bill stops short, though I do not approve of it. We shall be driven presently to the rearrangement of the circuit system, and the time has come to see it figure in a Bill. However, so far as the provision goes, it is quite good because it enables the authorities to get rid of the necessity of sending cases to be tried at a place where the Judge would have nothing to do except to try that one particular case.

There are other provisions which are valuable as diminishing the extent to which the authorities are hampered by rules which have existed from time immemorial but which have ceased to have justification. The abolition of the grand jury system in the case of quarter sessions is admirable. The Lord Chancellor made a powerful speech in favour of a larger proposition, which was to abolish it altogether. I could not distinguish—and I listened attentively—one argument in his speech in favour of retaining the grand jury system for assizes, while I did find in his speech one or two very powerful arguments for abolishing it. Why it should be retained, with its expense and with the vast amount of time which it wastes, I do not know. As the Lord Chancellor himself said, the influence of the Judge is sufficient to have the effect which a grand jury can exercise upon proceedings at an early stage. Not only so, but proceedings before the grand jury are in nine cases out of ten of a thoroughly perfunctory order. I hope that a little later this Bill will be followed by that which is in accordance with the opinion of, I think, the majority of present day authorities—namely, the abolition of the grand jury system for assizes also. I know that a majority of the Judges pleaded for its retention, but we of the law are notoriously very conservative people. Fortunately we have a Government that is not conservative in the old sense, and I trust, therefore, that before long my noble and learned friend on the Woolsack will be seen making himself consistent with the propositions of the speech which he has laid before the House to-day, and getting rid of this remaining anomaly in an otherwise very useful Bill, which I trust will pass.


My Lords, I hope your Lordships will allow me, although I am neither a Lord Chancellor nor an ex-Lord Chancellor, nor ever likely to be either, to say a few words upon this matter, especially as I took a particular interest a year ago in the question of the abolition of the presumption, which I consider foolish and unnecessary, that a wife is always acting under the coercion of her husband when she commits a crime in his presence. I then cited the well-known case of Mr. Bumble, who declared that "the law is a ass" if it presumed anything of the sort. That was written by Dickens in the year 1837, and I am led to believe that popular opinion at that time was strongly in favour of the view which Mr. Bumble then took. In the year 1878 there was, as has been said, a very powerful Committee that considered this question and reported in favour of the abolition of the presumption. Again, we have had another Committee quite recently, Mr. Justice Avory's Committee, which has reported unanimously in the same direction.

It seems to me to be absurd for Lord Buckmaster to contend at the present time that such a presumption is in accordance with facts which are well known to all of us. It is strongly resented by the advocates of women. After I raised this question a year ago, there was some correspondence in the newspapers, and many of the women's rights societies passed resolutions in favour of the abolition of the presumption. I feel certain that it is most desirable that, if we are to maintain a proper and due respect for the law, the law should embody the customs and views of the society of the present day, and not of the society of 1,100 years ago. After all, as the noble Viscount, Lord Haldane, has pointed out, even if you abolish the presumption, it does not prevent the wife, if she is really coerced by the husband to commit a crime, making that plea in extenuation, and proving it. If she can prove that she was acting under coercion, there is little doubt that, by the direction of the learned Judge trying the case, the jury would take that view and would acquit her. So much for that clause.

There are a few other points in this Bill upon which I should like to say a word or two. I have been Chairman of Quarter Sessions, I have practised at quarter sessions and I have practised at assizes, so that I know a little about this matter, though, of course, I cannot for a moment pretend to have the same knowledge as the noble and learned Lords who have already addressed your Lordships. I would venture to say that the obstacle which stands most in the way of the progress of this Bill—to which I wish an easy and fortunate passage—is its title. If you bring in a Bill "to amend the law with respect to the administration of criminal justice in England," you open what has been called a very wide door, and you will have, if not in this House at all events in another place, every conceivable Amendment proposed by every faddist who has any particular views as to criminal law, and it will be impossible to rule out any such Amendments. If I had been introducing a Bill of this kind—and thank Heaven I never have introduced a Bill, and never shall—I have been much more careful in limiting the title, so as to exclude the discussion of a whole mass of proposals which would have to be deemed relevant, but the weight and number of which would be liable, and I am afraid likely, to swamp the Bill in its passage through Parliament.

On the first clause, there is one matter upon which I should like to say a word. It is proposed to transfer to quarter sessions the trial of cases of bigamy. Is that really wise? The law of bigamy is not so simple as a good many persons think. Such questions will arise as: When is a marriage not a marriage? I who have lived on the border of Scotland, know that there have been many cases in which it has not been very easy to make out whether the Scottish law of marriage prevails in England, or whether a marriage which is alleged to have taken place in Scotland is really a marriage or not. As Chairman of Quarter Sessions, I feel that, I should have been placed in a very difficult position in administering the law or proposing to lay down directions of law upon such a topic as that. When is a divorce nut a divorce? That, again, is a question which is apparently occupying the High Court at the present moment, and I observe that counsel in that ease have cited—I was going to say hundreds of cases, but perhaps that is an exaggeration—at least a large number of cases upon which they allege that a principle can be founded.

I should doubt very much whether there are many Chairmen of Quarter Sessions who would be capable of disentangling some of those very knotty questions, and yet before you can convict a man of bigamy, or advise a jury to convict, you must be perfectly clear what the law of marriage is. I should be doubtful, subject to anything that the Lord Chancellor and other authorities may say upon this matter, whether the Chairmen of Quarter Sessions throughout England and Wales are really a sufficiently competent body to disentangle the law upon that matter. The Lord Chancellor must remember that these Chairmen are not all as brilliant and capable as himself, nor have they had such long experience. For the most part they are country gentlemen who are doing their very best to render service to the country in the administration of the law. A great many of them are not trained lawyers, and would find considerable difficulty in dealing with this matter.

Then the noble Viscount, Lord Haldane, raised the question of the abolition of grand juries, which is referred to in Clause 3. I strongly support the proposal to abolish grand juries at quarter sessions. I doubt whether they are of any use. But the logical position is rather difficult. If you are going to abolish them at quarter sessions, why not at assizes? The noble Viscount asked what arguments there were in favour of retaining them at the assizes which were not equally valid for retaining them at quarter sessions. The only arguments which occur to me are some which were propounded to me a good many years ago by two very eminent Judges with whom I was closely acquainted—the late Lord Bramwell and the late Mr. Justice Hawkins. With both of these Judges it was my good fortune on many occasions to go round the circuits, and I remember that they agreed in this, that they said they were in favour of the retention of grand juries at assizes, for the reason that it gave the country gentlemen, who were engaged in the administration of justice throughout the country, an opportunity of seeing how justice ought to be administered and was administered by High Court Judges.

Those gentlemen are not in the same position as those who form the grand juries at quarter sessions, because the latter are not as a rule engaged in the administration of justice, while the gentlemen who are summoned for assizes are the magistrates and others throughout the country who are engaged weekly in the administration of justice; and seeing justice properly administered by a Judge of the High Court gives them a very useful and salutary lesson in the method in which justice should be administered. Whether that argument holds now or not I do not know, but I thought that your Lordships' House might be interested in knowing what were the views of those two very distinguished Judges.

Next I should like to say a word upon Clause 8—the change of the venue of trial from one county to another. In the interest of the prisoner I admit that it is very desirable, but do not let the interests of the jurymen be overlooked. I take the case of the counties with which I have been all my life pretty closely connected—namely, the counties of Cumberland and Westmorland. It often happens that in the county of Westmorland there is only one prisoner, or possibly two prisoners, for trial—sometimes not even that. If you are going to transfer those prisoners from Westmorland to, say, Manchester or Lancaster, as the nearest assize town, you are going to put upon the juries summoned there the burden of trying those cases—a burden which ought to be borne by Westmorland men. It might well happen that there might be a long case from Westmorland, which would occupy their time for some considerable period, and I think they would have very good ground of complaint if it happened frequently.

Again, if you are going to send eases in Cumberland to be tried at Newcastle, why should you put upon Northumbrians the unpleasant and prolonged duty of remaining at Newcastle during several days, in order to try Cumberland cases? I think that is a matter which should not be overlooked, and if it were possible to make some provision, in some way, for it, I think those who already complain rather of the burden which attendance upon juries places upon them, would be to some extent relieved.

Lord Buckmaster referred to Clause 19 with reference to search warrants for indecent articles. I remember a case in which a Commissioner of Police in London came to me and brought me some of these articles. They were horrible and filthy. He said: "My wife received one of these this morning, and she received another some little time ago. I cannot do anything. The police are powerless. These things are sent by post, and we know where they come from. They are horrible and revolting things, and yet our hands are tied, because there is no section in any Act which enables us to go and search the premises—although we know perfectly well where they come from—of the person who sends them." He asked me whether it would not be possible to introduce some legislation to deal with this question. That has always remained in my memory, and it is, I have no doubt, the mischief which it is intended by this clause to prevent. These are not matters which I should like to speak of further in public, but I am ready, if the noble Lord wishes, to inform him exactly of the nature of the article which was sent.

With those few observations I can only say that. I wish this Bill every success. I feel certain that it will do a great deal of good, and although it is not of an ambitious character, yet it seems to me to contain a number of very useful reforms which have been too long delayed.


My Lords, many matters in this Bill must obviously be matters for discussion in Committee, and I think I am right—the noble Viscount will correct me if I am wrong—in saying that the Report upon which the chief of these reforms are based has not yet been printed. I have done what I could to get the Report of the Committee on Alterations in Criminal Procedure, and I have not yet been able to obtain it.


The noble and learned Lord is mistaken. The Report has been printed.


I have not been able to obtain it, although I have applied for it. I only refer to that for a moment in order to express the hope that sufficient time will be allowed between the Second Reading, which this Bill will undoubtedly obtain, and the Committee stage, in order that these matters of procedure which to my mind are of great importance, particularly with regard to poorer criminals in this country, should be thoroughly considered.

Now I want to turn to one or two matters which have already been referred to, and which I think can properly be referred to on this stage. I entirely agree with what the noble Viscount opposite has said with regard to what has been called the presumption as between husband and wife, if there has been a crime committed by the wife in the presence of her husband. I should like the whole of that matter to be swept away; it is time that it was swept away. I agree with the noble Viscount opposite, and I do not agree with Lord Buckmaster, who spoke in a contrary direction. I do not know whether your Lordships have read the extremely interesting Report of the Committee. It pointed out that this old presumption never has applied in cases of murder and treason. It also points out that although the presumption is of the innocence of the wife, that, can be counteracted by evidence to the contrary, and I do not think that the clause, as it stands in the Bill at the present time, really does introduce any substantial alteration in the law. No doubt it says that the presumption is not to be made, but at the present time, even where the presumption is made, you can call evidence to rebut it.

I think it is time that the whole matter was put upon a new basis, and I support the strengthening of Clause 24 in the direction which the noble Viscount has indicated. I should do that largely upon the Report of Mr. Justice Avory's Committee—a very strong Committee indeed—who were in favour (to use their own words) of abolishing the whole doctrine of coercion by the husband as a defence for the wife, leaving her on the same footing as other people free to establish any defence of that kind of compulsion (i.e., the fear of immediate death or grievous bodily harm) which affords a defence to any person except in the case of certain specified crimes. If the noble Viscount puts down an Amendment in the direction which he has indicated I shall certainly support him. I am not very much impressed by the fact that this law, which I believe to be a wrong one, has been in operation for a large number of years. I am afraid I am not such a Tory in these matters as my noble friend Lord Buckmaster.

I am entirely opposed to the general principles enunciated by the noble Viscount, Lord Haldane, with regard to the administration of justice at some central point instead of locally, as it is administered at the present time. If you want to have a proper system of criminal jurisdiction my own view is that it should be such a one as may be exercised as nearly as possible where the criminal has a fair chance of establishing his defence. Like the noble Viscount, Lord Ullswater, I have been for thirty years a Chairman and Vice-Chairman of Quarter Sessions, and my experience is that it is of the utmost importance that the old principle of administering justice locally should be maintained. I do not say that, because of the borough members to whom the noble Viscount referred; I do not think the maintenance of this jurisdiction depends on the authority or power of the borough members. To my mind it is entirely a question of how the criminal law is best administered. I have no hesitation in saying that it is extremely difficult for a poor criminal to obtain the assistance that he wants, or to be able to call the witnesses which he desires to call, if the trial is held at some distant assize centre, where perhaps he may have to wait a fortnight or three weeks before his turn comes for trial. That is an extremely serious matter.

I agree also with the noble Viscount that jurymen ought not to be taken away from their own counties, unless there is some great necessity for it. I do not believe that any such necessity exists. I know that more than once in Buckinghamshire we have unanimously protested against the notion that criminal jurisdiction could be exercised as effectively as it is now if our local courts were taken away and cases were heard at some large assize centre. Although that matter is not immediately raised in this Bill, I should like at the outset to raise my protest against a rather bureaucratic way of dealing with these matters, because I think it overlooks what is the greatest interest of all—namely, that the poor criminal should be assured of as fair a trial as we can possibly provide for him.

I desire to refer also to the Report of the Committee presided over by Mr. Justice Horridge. What was referred to that Committee was the question of detaining prisoners without bail for a long time before their trial—prisoners who in many cases were found innocent after all. I will read the main statement in that Report, because I think it is of extreme importance, and deals much more effectively with the real difficulties than do the provisions in the Bill, although I am not against the provisions in the Bill on this point, if they are properly safeguarded. This is what the Committee say:— Magistrates have ample power to admit prisoners to bail, but we feel that we cannot too strongly express our view that except in cases of the most serious character, or cases where there is a cogent reason to believe that the prisoners will escape, the power cannot be too freely used. I believe that everyone who has had experience of criminal jurisdiction would entirely endorse that. I am appalled sometimes when I read of the refusal to admit prisoners to bail pending their trial. The possibility of escape now is almost an absurdity, because, with modern publicity and our extradition law, it is almost incredible that a criminal who has been committed for trial should be able permanently to escape being tried. It is possible that some eccentric case might happen, but it is so unlikely that I consider that in all eases except those which Mr. Justice Horridge calls cases of the most serious character (which are only a small minority), bail ought to be allowed.

I gather from reports in the newspapers that the police sometimes oppose bail. I always regret that, and in some cases where complicated accounts are involved it seems to be a matter almost of fundamental justice that the person accused, who is supposed to be innocent until he is convicted, should be at liberty in the sense of being able thoroughly to prepare his case before his trial comes on for hearing. And, although it is a matter of detail, I will ask the noble Viscount to remember this. There are tables attached to this Report showing the number of instances in which persons who were not allowed bail were afterwards found to be innocent. I will not read all the statistics, and I make allowances for the suggestions made in the Report—that is to say, that in the case of quarter sessions trial a man should not be detained more than a month, and in the case of trial at the assizes, not more than eight weeks. Admitting that principle, I find that in the year 1919 96 prisoners were unduly detained without bail who were afterwards found to be innocent. I regret every one of those cases; we all should. But it is an insignificant proportion of the whole number of criminals tried, and if, in accordance with the proposals made in this Report, bail were more freely granted—and I am very strong in my view that that ought to be done—the difficulties which are pointed out in the Report of Mr. Justice Horridge would be adequately met, I only say that in support of what was said by the noble Viscount who spoke last.

There are, no doubt, cases in which it is convenient to try charges outside the quarter sessions or assizes to which they would ordinarily be committed. I agree with that, but it ought to be only in somewhat exceptional cases, and you ought not to throw on the jurymen of one county the burden which really rests on the jurymen of another county. That is a very important matter in our criminal procedure. You want every one to assent; you do not want to have discontent in matters of criminal jurisdiction. You want people to be willing to give their time, and they will not be willing to do that if you put undue burdens upon them.

I am very much opposed to the proposal in Clause 3 for the abolition of the grand jury at quarter sessions. I think—though I am not quite certain—that the Society of the Chairmen and Vice-Chairmen of Quarter Sessions have protested against the abolition of the grand jury system at quarter sessions. At any rate, that is the unanimous view of my own quarter sessions in Buckinghamshire. Let us test the logic of matters as they stand. In spite of the effort made by the noble Viscount opposite, it is wholly impossible to draw any distinction which justifies you in maintaining the grand jury for assize purposes, and does not entitle you to maintain it for quarter sessions purposes. Let us look at the two points of view. I regard the grand jury as in many cases a very proper protection for the persons charged. It may be—and my experience is the same as that of the noble and learned Viscount on the Woolsack—that the power of throwing out a bill is one that is not often exercised; but in cases in which it is exercised I believe it is always properly exercised. I have sometimes asked grand juries to do it and they have done it, I think quite rightly; and the effect of it is not that the criminal is brought up or that a suggesion is made by the Judge to counsel, but that the prisoner is acquitted of the whole thing on the ground that he ought never to have been committed at all, or was probably committed under some mistake and there is no primâ facie ease against him.

Now let me take the case of a prisoner committed to the assizes. He is to have that advantage in future, while the prisoner committed to quarter sessions is not. As the noble Viscount pointed out, the jurisdiction of quarter sessions is very much enlarged under the proposals of this Bill; but why is a prisoner committed to the assizes to have the advantage of having his case dealt with first of all by the grand jury, while a prisoner sent to quarter sessions is deprived of that advantage? I speak as one believing in the grand jury. I believe it is a great constitutional safeguard. The noble Viscount and those who are opposed to grand juries may take a different view, of course. Whether they take a different view, or whether they take my view, it is utterly impossible to suggest any reason why different principles should be applied in the cases of assizes and of quarter sessions. I will go a little further. No doubt, the more serious cases are tried at assizes. It is in the less serious cases very often that the grand jury properly intervenes, and I cannot imagine that a prisoner should have a different right according to whether the particular magistrates think it convenient to commit him to assizes or to quarter sessions. I must not give his name, but I met this morning a learned Judge and asked him about this very matter. He told me that in old days he was in favour of the abolition of grand juries. He had been, I think, a member of Sir Michael Hicks-Beach's Committee which dealt with the matter; but he had changed his view.

The noble and learned Viscount has referred to a matter which has been mentioned before, namely, the extreme advantage of something like a sermon being preached by one of His Majesty's Judges to the grand jury at assizes. That may be so: but, speaking as a Chairman of Quarter Sessions and having, I hope, as much morality as an ordinary Judge, I cannot see why, if that is an advantage in the one case it should be other than an advantage in the other case. As the grand jury is now constituted at quarter sessions and having regard to the fact that magistrates are drawn from all classes of the people, I do not think that the distinction to which the noble and learned Viscount referred, and which is endorsed by the great authority of Lord Brampton, is applicable at the present moment.

I admit that I regard the grand jury as of importance not only in giving proper protection to prisoners in particular cases, but in bringing the whole administration of the criminal law prominently before large bodies of the non-legal population. It popularises our system of criminal jurisprudence. It makes a large number of people cognisant of the principles on which it is administered. Above all, and I think this is most important, it convinces a great mass of people that every precaution is taken under our system in order to ensure, if possible, that an innocent man is not convicted. I need not go into the historic instances in which the grand jury has intervened, because they will be present to everyone's mind. I am pleading for the smaller criminal, the man who has some small offence charged against him, which is as important in his life perhaps as the larger crime is in the life of the more important criminal. I do not want to repeat it too often, but my view is most strongly, that it is the poor man and the small criminal who wants special protection in the administration of our criminal law.

The next clause about which I had proposed to say a word is Clause 8, which I think I might now pass over, adopting, without repeating them, the arguments used by the noble Viscount opposite. Amongst the other clauses, one to which I think I am bound particularly to object is Clause 12, because I do not know upon what Report that clause is based. Clause l2 makes it obligatory upon a court of quarter sessions in the case of an appeal, whether they think the matter is one of importance or not, provided it is not frivolous to state a special case. That, I think, is going altogether too far. In the course of my experience, I have had many applications made to me to state special cases, and I hope that one has stated them in every case in which they could properly be asked for. But apart from mere frivolous applications, if there is a provision of this sort the court are to be obliged to state a case on some paltry matter which the whole court think can make no difference to the real decision—a case which in their opinion will be quite futile and useless.

Why should that be so? It leads, in my opinion, to a great derogation of the authority of quarter sessions. The counsel who argue at quarter sessions are, perhaps, less advanced in their profession than those who argue before the Judges at assizes, and they will say: "We will not argue this case. You are bound to state a special case, and we will not take the trouble to tell you what it is about or anything else." They are quite competent to do that. I do not want to throw any obloquy upon my old profession, but, after all, counsel proceed in these matters from the professional point of view. It is very often their object to gain time, or even to obtain further discussion upon a matter which ought to be ended there and then. When we come to Committee upon the Bill I shall move that that clause be deleted. At the same time, I want to make my view quite clear that these are matters of great importance. I have not yet seen the Report of the Committee upon which, I presume, that proposal is based, because. I was told that it had not so far been printed.

Another clause which I think is a very harsh one is Clause 26. I really do not know where it comes from. It deals with passports, and it provides that any person who makes a false statement for the purpose of procuring a passport, whether for himself or any other person, shall be liable to imprisonment for two years and to a fine not exceeding £100. I think that is a monstrous penalty. People are constantly asking whether you will guarantee their respectability, or state that you know them, when they are applying for a passport. It is quite possible that a mistake may be made, however carefully you look into these things. In those circumstances, is a person who merely says that another person is one to whom a passport may be given, to be liable to two years imprisonment and the fine of £100? I am one of those who agree with Lord Raglan, and wish all this passport business to be brought to an end. But surely it is an absurd notion that in a matter of what, after all, may be really an innocent mistake, a punishment of this kind may be possible. It is no answer to me to say that a punishment of this kind will be given under the direction of a Judge. You must not give people power of this kind unless you think it is necessary for the purpose of public protection.

There are many other clauses to which I shall object when they come to be discussed in Committee, unless I am convinced by the Report, which I have not yet seen, that they are desirable. On the other hand, I wish to say that I ardently desire that this Bill should pass when the particular clauses have been thoroughly considered. I think it is of good omen that this Bill should have been introduced into your Lordships' House where we shall have ample time to discuss it, and where there are a large number of members who have had considerable experience in matters of criminal jurisdiction.


My Lords, I wish to make a few observations with regard to two matters in this Bill. One of my observations will be in consequence of the views that have been expressed by Lord Buckmaster. The other point with which I shall deal is in regard to the abolition of the grand jury in quarter sessions. With respect to this matter I take a view which, although in substance the same as that of Lord Parmoor, I should wish to put in a somewhat different way. In the first place, I think there can be no logical difference, as a matter of principle, between the abolition of the grand jury at quarter sessions and of the grand jury at assizes. If a grand jury is of no earthly use in the one case it is of no earthly use in the other.

I do not forget that there is a certain class of criminal offences—treason and matters of that, kind—as to which no one seriously suggests that it is not a very valuable provision in our law that ought to be retained, but I agree with Lord Parmoor that it is the little criminal rather than the big criminal to whom this constitutional protection is given. If we look at the matter from the point of view of the history of our law, we find that, historically, there are reasons for the functions discharged by a grand jury and we see how they grew and developed. To a great extent they have stopped, but the main advantage was that the system gave to the man whose life or liberty was concerned a final, impartial, educated tribunal which would regard the whole situation and say, "Is there really a case against this man to be tried, or is there not? Is he to be put through the humiliation of a trial, or is he not?" That is one of the things which impress the layman in our criminal procedure.

Is there a necessity for ceasing the use of this system, or ought it to be continued? I admit that the work which a modern grand jury has to do has been largely simplified, because now grand juries have before them facts that have been elicited after preliminary investigations which, to a certain extent, have cleared the ground. But that does not alter the logic that either the system as a principle is useful, or it is not. What I feel with regard to these changes, which little by little we are making in our legal procedure, is that we are rather too much disposed to regard the question of convenience, or cost, or something of that kind, and to allow that to influence us, forgetting that there may be behind the system something much more than we imagine.

This particular protection to the subjects of the State, as far as I know, never did exist in any Continental system of procedure. There are many things in Continental procedure, especially the French procedure, which I think are very good, and which we have not got. There are many things in it also which I think are bad and hope we never shall have. But I fear, in abolishing these things, which all had a meaning, and were serviceable in the past, and, I believe, still are and will be serviceable in the future, we are rather leaving our criminal procedure in a disjointed condition. We are getting rid of something that appears to be troublesome and expensive, and in so doing we are gradually getting rid of the safeguards which persons had in the old days. Some of those safeguards have lately been got rid of. What is the necessity of getting rid of this particular thing? If it is got rid of, another safeguard will be gone. I may be wrong in the matter, but I think we are gradually adopting much of the spirit of the Continental system without preserving the safeguards which we boast that we alone retain. These may be very far-fetched ideas to some people, but I confess, having had some experience of the administration of criminal matters in another country, I do not think they are far-fetched.

With regard to the question of presumption of coercion, again it is a matter of personal experience. For two years I had, as Attorney-General for Ireland, continuous experience of this very matter. It was one of the functions of the Attorney-General in Ireland in the course of his duty to read all the depositions taken at petty sessions for the purpose of seeing what was to be done with regard to a trial, and. I certainly was impressed in a way which has given me a conviction with regard to this presumption that nothing could alter. My view is that the presumption is absolutely ridiculous. The fact that it is eleven centuries old does not make it any the better, and the sooner we get rid of it the better. I am much obliged to your Lordships for listening so patiently to my remarks. I feel with regard to both these questions that it is one's duty to express one's opinion if one has had experience that justifies one in interfering.


My Lords, I have no reason to complain of the manner in which this Bill has been received. I am, indeed, grateful for the criticisms that have been made, and, so far as they affect particular clauses, I have no doubt they will be raised again in Committee, when I shall have an opportunity of dealing with them. I only want to say this. The noble and learned Viscount, Lord Haldane, pointed out that the Bill does not deal with the circuit system, or the number of assizes. That is true, but it is not because I am in the least afraid of dealing with that matter. It is because, in my opinion, this is not a Bill in which that particular subject ought to be dealt with. I am not at all in favour of a radical change in the old well-established system under which, as it has been said, justice is brought to the door of every citizen in this country. I am not one of those who want radically to alter the circuit system. But the question of an improvement in the system is being considered, and if the Government should have any proposal to make with regard to it that proposal will be embodied in a later Bill dealing with Civil procedure.

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