§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL of DONOUGHMORE in the Chair.]
§ Clause 1:
§ Offences triable at quarter sessions.
§ 1. Notwithstanding anything to the contrary in any Act, a court of quarter sessions shall, without prejudice to the jurisdiction vested in courts of quarter sessions at the commencement of this Act, have jurisdiction to try a person charged with any of the offences specified in the First Schedule to this Act.
§ LORD MUIR MACKENZIE
There is no Amendment on the Paper to Clause 1, but I wish to call the attention of the noble and learned Viscount on the Woolsack to a matter, suggested to me by very high authority, which justifies me, I think, in bringing it to his notice. I desire to ask him whether, when the time comes for dealing with the First Schedule and also the Second Schedule to the Bill, he would consider whether Section 11, I think it is, of the Criminal Law Amendment Act, 1885, ought not to be included in the Schedule. Though I do not think any case under this head can be said not to be serious, the subject covers a very large range, and there is a very great difference between the graver cases and the minor cases under that section.
I have been informed by Judges that juries are often unwilling to convict in the smaller cases because they think that under the provisions as they stand persons are brought to the assizes and run the risk, at any rate, of being subjected to penalties which juries think are out of proportion to the gravity of the offence, and so justice fails to be done in such cases. I did not venture to put down an Amendment at this stage. The Bill is one obviously which has been considered with extraordinary care and minuteness, and it has behind it the great authority of the noble and learned Viscount himself. I thought I would bring the matter to his attention and ask him if he would be good enough to consider the point I have put forward before the final stage of the Bill arrives.
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
I will of course consider the point to which my noble friend has referred. The offence which he has in his mind is an offence of indecent conduct on the part of male persons. I feel pretty sure that kind of charge ought not to be tried at petty sessions. Whether it would be triable at quarter sessions is another matter, and I would, if I may, think it over and consult with my noble friend on the question before the next stage of the Bill. May I take this opportunity of saying that in the debate on the Second Reading of this Bill the noble Viscount, Lord Ullswater, who is not in his place at the moment, suggested that the offence of bigamy was one not proper to he tried at quarter sessions, and he gave reasons. Since he spoke I have discussed that matter with some of the Judges, including the Lord Chief Justice, and I am inclined now to agree with his view, and shall propose when the time comes to omit bigamy from the First Schedule of the Bill.
§ Clause 1 agreed to.
§ Clause 2:
§ Summary trial of adults charged with certain indictable offences.
§ 2.—(1) Where a person who is an adult is charged before a court of summary jurisdiction with an indictable offence being one of the offences specified in the Second Schedule to this Act, the court, if they think it expedient so to do, having regard to ally representation made by or on behalf of the prosecutor, the character and antecedents of the accused, the nature of the offence, the absence of circumstances which would render the offence one of a grave or serious character and all the other circumstances of the case (including the adequacy of the punishment which a court of summary jurisdiction has power to inflict), and if the accused when informed by the court of his right to be tried by a jury consents to be dealt with summarily, may, subject to the provisions of this section, deal summarily with the offence, and, if the accused pleads guilty to, or is found guilty of, the charge may sentence him to he imprisoned for any term not exceeding six months or to a fine not exceeding fifty pounds or to both such imprisonment and fine:
(b) where in any case the prosecution is being carried on by the Director of Public Prosecutions or by the solicitor of a Government Department, the court shall not deal with the case summarily without the consent of the Director or solicitor, as the case may be;
§ LORD PARMOOR moved, in subsection (1), after "made" ["representation made by or on behalf of the prosecutor"], to insert "in presence of the accused." The noble and learned Lord said: I do not know that I need deal at any length with this Amendment. It is obvious that the representation made should be made in the presence of the accused. I do not suppose that the noble and learned Viscount will think to the contrary. I also consider that the words ought to be inserted at this stage. I have read through the clause very carefully, and if the words are inserted here I think they would be inserted at the right place, so that any accused person can understand when it is explained to him what his rights are.
Page 1, line 16, after ("made") insert ("in presence of the accused").—(Lord Parmoor.)
§ THE LORD CHANCELLOR
I agree that the statements ought to be made only in the presence of the accused. I think that is the effect of the Bill, because the question of dealing with a man summarily only arises in his presence and therefore this information can only be given in his presence. I will not, however, have a discussion about words with my noble and learned friend, but will accept his Amendment.
§ On Question, Amendment agreed to.
§ LORD PABMOOR had given Notice to move the omission of proviso (b). The noble and learned Lord said: If your Lordships will look at proviso (b) you will see that it deals with cases in which the prosecution is being conducted by the Director of Public Prosecutions or by the solicitor of a Government Department, and in those cases it is provided that the court shall not deal with the case summarily without the consent of the Director or solicitor. While there is a great objection to altering the forms of procedure owing to the fact that the prosecutor in the particular case is either the Director of Public Prosecutions or the solicitor of a Government. Department, on further consideration I have come to the conclusion that there is a great distinction between the two, and if your Lordships will allow me to alter the form of my Amendment, I would like 305 to move to leave out the words "or by the solicitor of a Government Department."
§ That would give what I call the privileged position to the Public Prosecutor for which I think there is a good deal to be said, but I cannot assent to the proposition that the solicitor of a Government Department when he is conducting a prosecution should have any greater right than an ordinary solicitor. Speaking as I do on this Bill so far as I can on behalf of the accused person, I do not see why the accused person should be deprived of the opportunity of being dealt with summarily if his is a proper case to be so dealt with, merely because a solicitor of a Government Department takes a contrary view. I do not want to depreciate the status of the solicitor of a Government Department, but I do not see any reason whatever why in a matter of this kind he should be put on a footing different from that of an ordinary prosecuting solicitor. Therefore, I move the Amendment in the form I have suggested.
Page 2, lines 15 and 16, leave out ("or by the solicitor of a Government Department").—(Lord Parmoor.)
§ THE LORD CHANCELLOR
I should like to make it clear that it is not the Government Depart ment which has asked for these words. They were suggested by the Director of Public Prosecutions. I think the view is that if these words go out there may be a disposition to send the cases to the Director of Public Prosecutions. But however that may be, there is a good deal in what my noble and learned friend says, and I propose, if he will allow me, to think over the point and if need be deal with it at the next stage of the Bill.
THE EARL OF DESART
May I say one word on this subject as a person who has had a good deal of experience in these matters? I think it almost certainly would be the effect of the Amendment that the cases now conducted by a Departmental solicitor—cases like those relating to Customs—would end by reverting to the Public Prosecutor. In the old days all the State prosecutions were conducted by the solicitor to the Treasury in that capacity. Then came the Prosecution of Offences Act, which created the Director of Public Prosecutions, 306 and gave him the duty of interfering in important and particular cases, but it was thought convenient all through my time, and I think has since been thought convenient, that purely Departmental cases should be conducted by the Department itself which possesses all the material, and at the head of which there is a gentleman of great responsibility. I do not think this suggested change would make very much difference, and I should hardly think it is really worth while making this distinction. I do not think it will have any real effect one way or the other. The prosecutions, outside those by the Department of the Public Prosecutor will be conducted by a responsible solicitor who can judge almost as well as the Director of Public Prosecutions can whether a ease ought to be tried at petty sessions or whether it is one that ought to be committed. In eases of great importance where he has evidence that they ought to be tried at quarter sessions, he will get the Director of Public Prosecutions to take them up, as it is open to him to do. I do not oppose the Amendment, but I think these points ought to be considered.
§ LORD PARMOOR
The noble Earl who has just spoken has of course had much greater experience than I have, but I would point out that we are not dealing with important or big cases. I should think that in a number of these cases of minor importance the matter would be left to the solicitor and the result which I suggest would follow. I do not want to go further into the matter now, because the noble and learned Viscount has promised to consider it.
§ Amendment, by leave, withdrawn.
§ Clause 2, as amended agreed to.
§ Clause 3:
§ Abolition of grand juries at quarter sessions.
§ 3.—(1) As from the date on which this section comes into operation, grand juries at courts of quarter sessions shall he abolished, and thereafter an indictment may be presented to a court of quarter sessions without having been found by a grand jury, if it is an indictment against a person committed for trial at that court for the offence charged by the indictment.
§ (2) Save as aforesaid an indictment presented in pursuance of this section shall be presented and shall be proceeded with in the same manner as it would have been presented and proceeded with before the commencement of this section, and all enact- 307 meats and rules of law relating to procedure in connection with indictable offences shall have effect accordingly, subject only to such modifications as are rendered necessary by the provisions of this section.
§ (3) An indictment against any person presented to a court of quarter sessions in pursuance of this section may contain, in addition to the counts for the offences specified in the caption of the depositions, any further counts founded en facts or evidence disclosed in any examination or deposition taken before a justice in the presence of the accused.
§ A court of quarter sessions may in any case direct any such further counts as aforesaid to be added to any indictment presented to the court.
§ (4) Where a person is bound by recognisance to prosecute a person who is accused of an offence triable at quarter sessions and is not committed for trial, the recognisance shall require the person bound to present the indictment against the accused person to the grand jury at the next practicable court of assize.
§ (5) Rules may be made under the Indictments Act, 1915, for carrying this section into effect (except so far as relates to matters with respect to which rules may be made under the section of this Act giving power to make rules with respect to the procedure of examining justices), and in particular for modifying so far as is necessary for the purposes of this section any enactment, including any statutory form.
§ (6) No precept shall after the commencement of this section be issued for the summoning of grand jurors to any court of quarter sessions, nor thereafter shall any grand jurors be summoned to any court of quarter sessions, and if any such precept or summons has been issued before the commencement of this section, it shall be void so far as it relates to the summoning of grand jurors to attend at courts of quarter sessions on or after the date of the commencement of this section.
§ (7) Nothing in this section shall prejudice the right of any person to present an indictment to the grand jury at any court of assize, and where the grand jury at any such court return a true bill against any person not being a person committed for trial at that court in respect of any offence, and the offence is within the jurisdiction of courts of quarter sessions, the court may, if they think fit, direct that any further proceedings on the indictment shall be taken before any court of quarter sessions to which the accused might have been committed for trial.
§ (8) This section shall come into operation on the first day of August, nineteen hundred and twenty-three.
§ LORD PARMOOR moved to leave out Clause 3. The noble and learned Lord said: This is a matter which was discussed at some length on the Second Reading of the Bill, the proposal being, 308 as your Lordships know, to maintain the grand jury system at assizes, but to bring it to an end so far as quarter sessions are concerned. I do not want to repeat at any length what I said the other day, but I desire to put two considerations before your Lordships. If it is right that the prisoner should have the protection of a grand jury at assizes he certainly ought to have the same protection at quarter sessions. Let me give the illustration to your Lordships of two persons accused of the same offence. One of them, as he may well be, is committed to quarter sessions, and the other, as he may well be, is committed to the assizes. In the case at the assizes the grand jury might throw out the Bill, and the accused person would be relieved of what Lord Mansfield called, I think, the agony and tragedy of being tried in public for crime. The other prisoner who had not the benefit of the grand jury because he was committed to quarter sessions would not only be tried but might be convicted. If the grand jury is a proper protection in the one case it is surely a proper protection in the other.
§ I can see no answer to what I am saying: that a prisoner tried before the assizes ought not to have an advantage which is not allowed to a prisoner tried before quarter sessions. It is from the prisoner's point of view that I desire to approach this Bill. The Lord Chancellor, who has great experience in quarter sessions, says that he has known of bills which have been thrown out by grand juries at quarter sessions. My experience is the same, and I think in those cases it has been a very proper protection to the prisoner that he has not been put on his trial. The Lord Chancellor made this suggestion, and I am afraid I must differ from him on the point. He thought the same result would be obtained by the Chairman of Quarter Sessions—we are not dealing with assizes—indicating to the prosecuting counsel that he had better not carry the prosecution forward. There is every objection to a system of that kind as a substitute for the grand jury system. It depends on the equity and experience of the particular Chairman of Quarter Sessions before whom the case is brought, and I think a large number of Chairmen of Quarter Sessions would be very unwilling to interfere in such a way with a case which had been sent up for trial by the magistrates. I 309 cannot say in my experience that grand juries have often intervened either at assizes or at quarter sessions, but they have intervened sometimes, and with great advantage to the course of justice and the protection of the particular prisoner.
§ But I come back to this point: How, if the prisoner who is tried at assizes is to have this advantage, can you justify depriving a prisoner charged with the same offence of the same advantage if he is committed to quarter sessions, as he may be? That is the first reason why I object to the differentiation between trial at quarter sessions and at assizes. On the major point I admit that I have always been in favour not of abolishing grand juries at assizes and quarter sessions but of retaining them. The tendency of modern days, particularly as regards our criminal jurisdiction, is becoming bureaucratic. The great difficulty of modern life, not only as regards criminal trials but as regards many other matters, is to bring together what is called public opinion on the one side and expert opinion on the other. You do not want to abolish either element from our jury system, which rather brings these two considerations into play as regards our criminal trials and grand juries.
§ I know there is a view that the summoning of a grand jury is a waste of time. I do not think so. It is a very important part of our criminal jurisdiction that those who are summoned as grand jurors should attend and should be satisfied and convinced that our criminal law is carried out in such a way that every possible protection is given to the accused person. The Lord Chancellor said that there is a difference between a grand juror summoned at assizes and a grand juror summoned at quarter sessions. To a great extent that is true, but I use the argument there rather in favour of maintaining the grand jury at quarter sessions and abolishing it at assizes than for the other alternative. And for this reason. Grand jurors who, as a rule, come to assizes are magistrates. They are acquainted with the administration of the law. They have had experience in various directions. The grand jurors who come to quarter sessions are really of the same class to a large extent, but they do not happen to be magistrates. That is the difference between the two; and it is very important 310 that this type of grand juror should become familiar with our criminal I practice.
§ I have embarked upon a large field, but it is a matter for very real consideration. On the other side there is a tendency, so far as judges are concerned, to put juries on one side. I take the opposite view. I say that the expert side is quite sufficiently developed, and the common sense and common view side ought to be maintained in all parts of our legal system, and particularly as regards our criminal jurisdiction. The Lord Chancellor quoted—and they formed the strongest part of his argument—cases in which grand juries had protested against being summoned. I have not found that myself; experiences may differ in particular cases. But it would be a very different thing to reform the system so as to relieve grand jurors of any such burden and abolish the system altogether. They are two different things. In the summoning of juries I have often thought that there is too autocratic an attitude, and that far more care should be taken so as not to interfere with the ordinary business of business men. The remedy for what the Lord Chancellor referred to could be found in a better system of summoning grand juries, not in doing away with them altogether. This is a matter on which I have the strongest personal opinion, and I hope that grand juries will remain as part of our criminal system both at assizes and at quarter sessions.
Pages 3 and 4, leave out Clause 3.—(Lord Parmoor.)
§ EARL BEAUCHAMP
A layman can only intervene in a discussion of this kind with great diffidence. He has not the wealth of legal experience to draw upon such as is in the possession of the noble and learned Lord who has just spoken; but there is a point he may fairly make. I listened with great attention to the speech of the Lord Chancellor on the Second Reading, and especially to the arguments with which he supported the proposal in the Bill. It seemed to me that all the arguments he used to support the abolition of grand juries at quarter sessions applied equally well to the abolition of grand juries at assizes. A number of your Lordships have served as 311 Chairmen of Quarter Sessions and it would be very useful if those who have done so would give us the benefit of their experience.
I am afraid in this matter that I must differ from my noble and learned friend Lord Parmoor. I prefer to see the abolition of the grand jury system; and there is this to be said in support of it. If you are considering the position of the prisoner, to whom, naturally, we wish to give every possible aid, he is far more likely to get the assistance of the learned Judge at assizes, and valuable assistance, than from the Chairman of Quarter Sessions. Admirable as many of them are, naturally they are not lawyers with the same experience as Judges of Assize, and I venture to think, therefore, that we might well deal with the grand juries in the same way, both at quarter sessions and at assizes.
§ LORD SHANDON
I wish to support with somewhat strong conviction the Amendment of my noble and learned friend. I am aware that my voice must naturally be a humble one, and that my views cannot carry the force which those of some other noble and learned Lords will unquestionably possess. This matter of the abolition of grand juries, though it is dealt with in this omnibus Bill as a mere matter of formal amendment of our criminal procedure, would, if we were confronted with it in its true light as a very substantial and, I think, very far-stretching alteration in our criminal procedure, hardly pass without very severe criticism both from lawyers and from laymen.
Although I have the misfortune to differ from the noble Earl who has spoken, I would adopt his arguments with reference to what I conceive to be the totally illogical position of this clause, in that we are proposing to abolish the grand juries in one tribunal while retaining them in another, although the same class of offender, charged with exactly the same crime, may perchance be tried at quarter sessions or at assizes according to the peculiar circumstances of the case. I respectfully urge that there cannot be any logical or common-sense justification—if I may so put it without wishing to use language that may appear too strong—for such a distinction. I can quite conceive an amendment of our law in which it might be declared that the grand jury 312 should continue to function in certain classes of case—treason, felony, possibly murder, and a series of offences of that kind. But in the form in which it stands here, it seems to me to be the thin end of the wedge in connection with a very large problem indeed, presented in such a way that its true significance may not be apparent.
I am not one of those who think that our criminal procedure is so perfect that it should not be amended at all. On the contrary, I consider that there are ample grounds for very drastic amendment and codification of the whole system of criminal procedure and evidence which has grown up in this country. But I can hardly conceive, however we may alter our system of criminal procedure, that we ought to alter this very ancient and very useful portion of it—namely, the investigation, not by technical men, not in a technical manner or by officials, but by non-technical men, of the question whether or not a man is to be put on his trial, subjected to the ignominy of that trial, and to the hardship of having his character assailed, quite irrespective of the class of offence with which he is charged. Surely there is something real in our criminal procedure which has created this particular part of it. What is the reason for abandoning it? And why, in any case, should there be this extraordinary distinction, as it appears to me, between quarter sessions and assizes, without any regard to a possible classification of offences? Hopeless though I feel it may be, I wish to support as strongly as I can the views of my noble and learned friend.
§ THE LORD CHANCELLOR
Two courses of argument have been followed on this clause. Some of your Lordships apparently desire to retain grand juries altogether both at assizes and at quarter sessions. Others desire to abolish them altogether both at assizes and at quarter sessions. I think those two arguments tend to cancel one another, and I might possibly leave one set of advocates to answer the other. I will deal, however, with the point in this way. I want to say, first, why grand juries should, in my opinion, be abolished at quarter sessions, and then to show, if I can, why there is a distinction between quarter sessions and assizes.
313 As regards the first point, I have found, and I am sure many of your Lordships have found, a growing feeling in the country that there is, not only a consumption of public time and money, but a waste of public time and money, in the summoning of grand juries to deal with every charge at every quarter sessions. As your Lordships know, many quarter sessions meet six times in the year, and some, of course, more often. On every occasion you have to summon some fifty business men—for you always summon twice the number of jurymen required—to call them away from their business to attend quarter sessions. And to do what? They assemble in court, they are addressed by the Chairman upon the cases which are to be brought before them, they retire to a room, and they have to consider one by one whether these cases, which have been considered in detail and carefully by magistrates at petty sessions, are fit to be tried or not. For that purpose they do not hear all the evidence, they do not hear a single witness for the defence and they are not bound even to hear a witness for the prosecution. Without hearing the statement of a single witness in support of the charge, they can at once find a true bill and send it clown by two of their number to be tried in the court.
I do think, speaking from some experience, that this is a waste of the time and money of the county. It seems to me that if we rely, as we do rely, upon our magistrates to do their duty, we ought to rely to the extent of believing that they will not send a case for trial unless there be at all events good grounds for a trial. Why should there afterwards be this examination, which I have no doubt is done with a desire to do it rightly, but which, after all, is and must be of a wholly cursory and unsatisfactory character, interposed between committal by the magistrate and trial by the jury?
It really is not a small grievance; it has become a serious one. I agree entirely with the many representations made throughout the country, both to me and my predecessors and to the Home Office, that the whole matter should be considered. We are not, as your Lordships know, without experience. Throughout the war no grand jury was summoned at all, and I do not know of a case where anybody complained of that, or where anybody is even said to have suffered by 314 it. We did without them for all those years, and surely we can do without them now, after full investigation of the merits of the case. I think, then—and I hold this very strongly—that the time has come when this unnecessary, and I am afraid I must say useless, burden should no longer be imposed upon business men. They should no longer be asked to give up their time for a purpose which many, I believe most, of them feel to be wholly unnecessary. I press the House, therefore, to pass this clause.
Let me say a word about the distinction between quarter sessions and assizes. I think it is a real one. Assizes are held, as your Lordships know, by Judges of the High Court, and the grand jurymen are in most cases magistrates of the county. It is an advantage to them to hear from a Judge of the High Court observations addressed to those who are engaged throughout the county in the administration of justice. Except possibly in the case of the larger cities and of London, there is, therefore, no perceptible hardship imposed upon the grand juries. Magistrates have time which they are willing to give in public service, and they do not grumble at being summoned to the assizes, and being asked to listen to what the Judge has to say and to deal with the bills.
There is a further reason for retaining a grand jury in some form. As your Lordships know, while I suppose ninety-nine per cent., and possibly a greaten percentage, of the cases come for trial upon committals by magistrates, yet there may be, and are, original bills presented sometimes by the Attorney-General and sometimes by private individuals, who are bound over to come, or who do come, to present bills to the grand jury, and it has been the strongest argument for the retention of the grand juries that it is not right that a Government official, or a private individual, should have it in his power to put a man on trial without some preliminary investigation by a jury of his countrymen. I have always felt the force of that, and we meet it in this Bill, because we say that all such bills, and there are very few of them, shall go to the assizes and there be dealt with by a grand jury. That is one reason, I think, why it is desirable to keep the grand jury in some shape alive.
315 I am, of course, not talking solely of my own opinion, but I am relying on the opinion of many who have experience in the matter. Let me read to the House what is said by a very distinguished Judge, who still sits on the Bench in the High Court. He says this:—As every indictment had to be found by a grand jury it follows that there had to be a grand jury not only at the assizes and at the Central Criminal Court but at every quarter sessions. These are held four times a year in every county and sometimes in parts of counties. They are also held in innumerable boroughs. In the Metropolis they occur every fortnight. It is at quarter sessions that the burden of the grand jury is most felt and its practical utility most remote. It is suggested that if grand juries could be abolished at quarter sessions nine-tenths of the inconvenience would disappear. On the other hand by their retention at assizes only all that is desirable in the system could be secured. If this is en a valuable reform without any drawback can be achieved.Then he works out a proposal which is reflected, or has its parallel, in the present Bill. I think that learned judge who shows by what he says that he realises the value of a grand jury at the assizes, even more strongly thinks that there are not the same reasons, or indeed any adequate reason, for retaining grand juries at quarter sessions.
§ LORD PARMOOR
I should like to say a few words in answer, and they will be very brief. If the grand jury system involves a waste of public time, and a useless waste of public time, it should be brought to an end. Of course, my view is to the contrary, and I am bound to admit that I cannot follow the grounds on which the noble and learned Viscount can find any distinction, as a matter of criminal procedure, between their utility at quarter sessions and their utility at assizes. It may be that more have to be summoned in connection with the quarter sessions, but from the criminal law point of view, if it is right that the prisoner should have this safeguard in one case, surely it is right that he should have this safeguard in the other. I think there can be no answer to that. Then a few words from the point of view of those summoned as a grand jury to the assizes. Magistrates are now business men, and very often are working men, and I do not believe there is any difference in substance between those who come to the assizes and those who come to the quarter sessions. No doubt you may have 316 magistrates in one case and not in another, but it is the same class of men upon whose time the same claims are made and who are subjected to the same inconvenience. I regret what the noble Viscount has said, but I do not think I can put your Lordships to the trouble of a Division, although I feel very strongly against the proposal in the Bill.
§ On Question, Amendment negatived, and Clause 3 agreed to.
§ Clauses 4 and 5 agreed to.
§ Clause 6:
§ Venue in indictable offences.
§ 6.—(1) A person charged with any indictable offence may be proceeded against, indicted, tried and punished in any county or place in which he was apprehended, is in custody, or has appeared in answer to a summons charging the offence, as if the offence had been committed in that county or place, and the offence shall, for all purposes incidental to or consequential on the prosecution, trial or punishment thereof, he deemed to have been committed in that county or place:
§ Provided that if at any time it appears to any examining justices during the course of any proceedings taken against any person before them in pursuance of this subsection that the accused would suffer undue hardship if he were indicted and tried in the county or place aforesaid, the examining justices shall forthwith (but without prejudice to their powers under Section twenty-two of the Indictable Offences Act, 1848), cease to proceed further in the matter under this subsection.
§ LORD MUIR MACKENZIE
I have a word or two to say upon one of the provisions in this clause to which I desire to draw the attention of the noble and learned Viscount, in the hope that he may consider it before the next stage. I refer to that part which says that a prisoner may be tried not in his own county but in the county in which the prison in which he is interned is situate. One aspect of that matter is this, that it takes it out of the hands of the court, or the Statute, as to saying where -the accused is to be tried. I think it rests with the Home Office to say whether a prison should be retained in any particular place or not, and if they declare that there shall be no prison kept open in the particular county the result would be that the prisoner would come under the provisions of this section, and might, with all the disadvantages that follow upon such a course, 317 be tried away from his own witnesses and away from his own surroundings, where, according to our general principles, a prisoner is entitled to be tried. I should be very much obliged to the noble and learned Viscount if he would consider before the next stage whether those words "is in custody" might not be left out of the clause.
§ THE LORD CHANCELLOR
The noble Lord's point, of which he was good enough to give me notice, is really founded upon misapprehension. The objection which he takes is to the provision in the clause that an accused may be tried in the county or place where he is in custody. I think the noble Lord is under the impression that if a man who is committed, say, from one county, is sent for convenience to a prison in an adjoining county, he can be claimed, so to speak, by the justices in the adjoining county, and tried there. I am advised, and I think rightly, that that is not so—that a prisoner committed for detention pending investigation by justices is in the custody of those justices wherever his actual body may be confined in prison. It would not be open for the magistrates of the adjoining county, even if they should desire to do so, to claim that prisoner and try him themselves. He remains in the custody of the court which remanded him, or which committed him for trial. I hope that my noble friend will consider that, and, if he agrees with me on the question, then no doubt he will not feel it necessary to press the point at a later stage.
§ Clause 6 agreed to.
§ Clause 7 agreed to.
§ Clause 8:
§ Power of justices to commit to convenient assizes or quarter sessions.
8.—(1) The justices before whom any person is charged with an indictable offence, may, instead of committing him to be tried at the assizes or quarter sessions for a county or borough to which but for this section he might have been committed, commit him to be tried at the assizes for some other place or, if the case is one in which courts of quarter sessions have jurisdiction, at the quarter sessions for some other county or borough if it appears to them, having regard to the time when and the
place where the last-mentioned assizes or quarter sessions are to be held, to be more convenient to commit the accused person to those assizes or quarter sessions with a view either to expediting his trial or saving expense, or otherwise:
Provided that the power given by this subsection shall not be exercised—
§ LORD PARMOOR moved, in subsection (1), after "having regard," to insert "to the interests of the person charged and that such person shall in no way be prejudiced in his trial and ". The noble and learned Lord said: This clause gives power to justices to commit to convenient assizes or quarter sessions, and therefore to that extent interferes with the local conditions which attach generally to the trial of prisoners in this country. I drew attention to the matter on Second Reading, and I think the Lord Chancellor, in his reply, said he had no sympathy with a general system of centralised assizes or centralised courts, as against our local courts at the present time.
§ Clause 8 was really introduced, if I understand it aright, as the result of the recommendation of the Committee presided over by Mr. Justice Horridge. Mr. Justice Horridge wanted to devise some system under which the difficulty of detaining prisoners for too long a time in prison before the actual trial in cases in which bail was not given would be removed, and he expressed the view that bail should be much more frequently given. I want to alter this clause somewhat, so that it may better carry out the recommendation of Mr. Justice Horridge, who desired to ensure fair conduct towards the accused person. It is a way of securing that the accused person should be tried in as short a time as possible.
The clause provides that the justices may permit the accused person to be tried at an assizes or quarter sessions other than
the quarter sessions or assizes to be held in his own county. The words are:—
at the quarter sessions for some other county or borough if it appears to them, having regard to the time…
The real consideration is fairness to the accused person. I desire to insert, after "having regard," the words "to the interests of the person charged and that such person shall in no way be prejudiced in his trial and". I move this Amendment in the interest of the accused person. If he said: "I do not mind my trial being postponed, but I want to be tried in my own locality where my witnesses can be brought forward", I think he has a right to say that. The same idea is in the words "and that such person shall in no way he prejudiced in his trial." I want to asure that if you change the venue and the man is tried out of his own county, it shall only be done if it is in his interests to be so tried.
Page 10, line 24, after ("regard") insert ("to the interests of the person charged and that such person shall in no way he prejudiced in his trial and").—(Lord Parmoor.)
§ THE LORD CHANCELLOR
I will deal with this and the following three Amendments to the same clause which the noble and learned Lord has on the Paper, together. The purpose of the clause is that an accused person may be committed for trial to any convenient assizes or quarter sessions. My noble friend says that should only be done where it is convenient to the prisoner.
§ THE LORD CHANCELLOR
Ah! not to his prejudice. I will deal with that. What the Committee recommended—and we have exactly followed the recommendation of the Committee—is that the accused person should be committed to any assizes or quarter sessions to which it is convenient to commit him, and where that can be done without hardship to him. Under proviso (b) we carefully provide that there shall be no undue hardship to the man, and if that is secured I really do not see why we should not consider the interests of the public as well as the interests of the prisoner. There are cases where time and public money are saved by committing a man to an assize which is just doming on, although in the neighbouring county, rather than keeping him for months in custody awaiting trial 320 at the next assize in the county in which he happens to be committed. The object is not merely to help him to a speedy trial, but, if occasion occurs, to help the public to avoid the long detention of men who ought to be tried quickly, and the expense which is thereby caused.
That being so, I hope that the House will accept the clause as it stands, and will not allow the public interest to be entirely overlooked—so long, of course, as no prejudice accrues to the person who is concerned. Therefore, I hope my noble friend will not press his first three Amendments which deal with the matter. But I am quite willing to meet him in this way. The final words of this part of the subsection immediately before "Provided that" are—with a view either to expediting his trial or saving expense, or otherwise.I agree that the words "or otherwise" open rather a wide door, and I think it would, to some extent, meet my noble friend's point if those words were omitted, and it were left to depend only on the question of expediting the trial or saving expense. If he will move his last Amendment in that form I shall be prepared to assent.
§ LORD PARMOOR
After what the noble and learned Viscount has said I shall not press my first three Amendments. I accept his suggestion and shall move that the words "or otherwise" be deleted.
§ Amendment, by leave, withdrawn.
§ LORD PARMOOR then moved, in subsection (1), immediately before "Provided that," to leave out "or otherwise".
Page 10, lines 28 and 29, leave out ("or otherwise").—(Lord Parmoor.)
§ On Question, Amendment agreed to.
§ Clause 8, as amended, agreed to.
§ Clauses 9 to 11 agreed to.
§ Clause 12:
§ Court of quarter sessions on appeal to state case on point of law.
§ 12.—(1) Subject to the provisions of this section, it shall be the duty of a court of quarter sessions, on the application of any party to the proceedings, to state a case for the opinion of the High Court on any point of law arising in any appeal against a conviction by a court of summary jurisdiction or the sentence imposed on such a conviction.
§ (2) If a court of quarter sessions are of opinion that an application under this 321 section is frivolous they may refuse to state a case, and where they do so they shall, if the applicant so requires, cause the clerk of the peace to deliver to him a certificate of the refusal, and the reasons for the refusal shall be stated in the certificate:
§ Provided that the court shall not refuse to state a case where the application is made by or on behalf of the Attorney-General.
§ (3) Where a court of quarter sessions refuse to state a case, the applicant may apply to the High Court, in accordance with rules of court, for a rule calling on the court of quarter sessions and the other party to the proceedings to show cause why a case should not be stated, and the High Court may make such order on the application as the High Court think fit.
§ LORD PARMOOR moved to leave out Clause 12. The noble and learned Lord said: Under the law as it at present stands, if an accused person is tried at petty sessions there is an obligation upon the petty sessions to state a case for the High Court on a question of law, but there is no such obligation on quarter sessions. The object of this clause is to place the same obligation on quarter sessions as now attaches to petty sessions. I think that the two cases can be very clearly differentiated. The distinction between petty sessions and quarter sessions really originated in the Summary Jurisdiction Act, 1857, with this result in one of its clauses—that if an accused person asks for a special ease and a special ease is taken to the High Court, he loses his right of appeal to quarter sessions. He has an alternative remedy. He can either go to quarter sessions in the ordinary way by appeal, or he may go by special case to the High Court.
§ I have never heard any objection raised to the present procedure as regards quarter sessions. If, of course, a quarter sessions court goes outside its jurisdiction or acts in any way improperly there is a method, which is technically known as certiorari, by which the order can be brought up and quashed in the High Court. One cannot speak for every court of quarter sessions, but I have discussed this matter with a great many Chairmen of Quarter Sessions, and I have never heard of any difficulty being raised about stating a special ease in any reasonable case. Under reasonable conditions I think that the court always grant the request for a special case.
§ But, what is suggested here is that they are to do the same as is done in petty 322 sessions; that is, to grant it in all cases unless it is frivolous. There are Chairmen of Quarter Sessions who are members of your Lordships' House and who know that there is before that court a real trial. The whole procedure is quite different to trial before petty sessions. What will happen to any matter that is brought before them on appeal from petty sessions, if you put this clause into operation? Counsel will say: "You are bound to state a case. It is not worth our while to argue it here; your hands are tied. We propose not to bring the case forward here but in the place where it ought to be determined, because you are bound to state a special case for some other court." That seems to me to be in derogation of the dignity of the court of quarter sessions. There ought not to be any such obligation put upon them. If the dignity of any court is subjected to a proceeding of that kind I think it must suffer very severely indeed. I can see no reason for this suggestion.
§ I forget whether it was mentioned when the Bill was introduced, but I understand that its basis is that the jurisdiction of petty sessions has increased. Therefore you have appeals to quarter sessions upon matters which would not now come on appeal from petty sessions but would come before quarter sessions in the first instance. I sincerely hope that this clause will not be pressed. If the noble and learned Viscount has any reason to think, as he may for aught I know, that quarter sessions in any way abuse their powers now, that, no doubt, would be a reason for the change; but I have never heard of it, and that is not the suggestion. The clause is not based on any attack upon the conduct of Chairmen of Quarter Sessions, who behave, I believe, perfectly reasonably in this matter; it is based on the ground that you are increasing the power of petty sessions, so that you may have matters on appeal from petty sessions in future which now come before quarter sessions in the first instance.
§ I hope that the noble and learned Viscount will appreciate the difficulty which would arise if a clause of this kind was passed. I may say that it is a very difficult thing to ask quarter sessions to state a special case in all these numerous instances. Quarter sessions meet for a day and disperse. I think the regulation with reference to petty sessions is that 323 a case must be asked for within three days; but a court of quarter sessions has dispersed in that time. Is the Chairman to state the special case? If not, who is to be responsible? I understand the same principles are to be applied to quarter sessions as are now being applied to petty sessions, and I should like to know who is to pay the expense and to deal with the difficulty of matters of this kind. I am, I admit, a great lover of the principle of quarter sessions. I am a great admirer of the way in which magistrates do their work at quarter sessions, and I hope that they will be left free to do that work as they have done it hitherto and not have a provision of this kind placed upon them which seems to me to be impossible to work and to put upon them an unfair liability. I beg to move.
Leave out Clause 12.—[Lord Parmoor.]
§ VISCOUNT HALDANE
I do not want to detain your Lordships for more than a moment because there is other business for which you are waiting, but I do wish to say this, that having listened to my noble and learned friend I cannot find anything in what he said except an argument based upon the dignity of quarter sessions. Quarter sessions is altering its position. More and more cases come to it on appeal from inferior courts and in other ways on which very important questions of law arise. That is constantly happening. These things cannot be reached by certiorari as my noble and learned friend suggested, except in a very limited class of cases. Certiorari is a very limited remedy which brings proceedings, which, on the face of them, are wrong, before a superior court to review. But in this case, as the law at present stands, there is no possibility of getting a point of law properly stated, although quarter sessions may have decided the very important point of law. It is a difficulty, and evidences are to be found everywhere in the books of vain attempts to get matters raised by certiorari which cannot be raised by certiorari. The Reports are full of such cases, and I am entirely in favour of the clause which the Government proposes.
§ THE LORD CHANCELLOR
I will try to make my answer as short as I can, because I agree that the House is probably 324 anxious to get on to other business. I should like to tell my noble and learned friend what is the real basis of this clause. I am just as much a believer in quarter sessions as he is, and I would not willingly put any slur upon bodies of that kind; but the position is this. A man is charged with an offence at petty sessions and is convicted. He may think that the decision is wrong both on facts and on law. He is entitled then and there to ask for a case on the law, but only on condition of accepting the decision on facts. On that condition he is absolutely entitled to a case. Supposing he wants to dispute the facts, and appeals to quarter sessions. If he goes there and fails on facts he can no longer get his point of law raised in a higher court. Therefore, he has the option of admitting his liability on facts and relying on the law, or of relying upon the facts and losing his remedy on law. It was considered by the Bodkin Committee that it was not quite fair to the man to put that choice upon him, and that he ought to be free to appeal on facts and still keep open his remedy on law and apply it if quarter sessions are against him. That is the whole meaning, object and origin of the clause. May I ask my noble and learned friend whether he will consider that between now and the next stage of the Bill? I should be very willing to consult with him to see whether the clause can be put in any other form which will be more agreeable to him. For the moment, I hope that your Lordships will accept the clause.
§ LORD PARMOOR
I am much obliged to the Lord Chancellor. He understands quarter sessions; but I doubt whether the noble and learned Viscount who last spoke has had any experience of them.
§ LORD PARMOOR
I shall be very glad to consult with the Lord Chancellor, and I hope that perhaps some alterations may be introduced into the clause. I beg to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.325
§ Clause 13:
§ Right to appeal against sentence imposed by court of summary jurisdiction.
§ 13. A person who after pleading guilty or admitting the truth of the information is convicted of any offence by a court of summary jurisdiction shall have a right to appeal in manner provided by the Summary Jurisdiction Acts to a court of quarter sessions against his sentence.
§ LORD BUCKMASTER
When this Bill was before your Lordships on Second Reading I called attention to the provisions of this clause, and expressed the hope that the Lord Chancellor would see his way so to amend it as to enable the appeal that is there conferred to include a right of appeal against the sentence itself. I have not placed on the Paper any Amendment to this clause because I know that in cases such as these the Lord Chancellor must be very largely guided by the experienced advisers who are assisting him with this measure. They may tell him that the objections I am raising are not well founded, and that there is not sufficient substance in them to induce him to effect a change; but I wish to repeat that it is impossible for any person who is acquainted with London life not to know that there are men in London to-day who have pleaded guilty to offences chiefly of an unpleasant character, like that of soliciting women, or, in one case, soliciting men, who declare that they have been induced to plead guilty to the charge by the promise that if they did so the case would escape publication, and they would save themselves from being associated with the scandal and disgrace of the matter with which they are charged.
If one such case exists it is clear to my mind that the man ought to have an opportunity, on application, of having his case entirely reheard from beginning to end. This clause as it stands only permits him to appeal against the sentence, and not against the conviction. I am quite satisfied that your Lordships will feel with me that there can be no graver abuse of the whole system of our administration of justice than that a man, in the hope of escaping the horrible publicity of a daily newspaper, should plead guilty to a charge which he has never committed, and then find that he is stopped for life from denying that the charge was true. Nearly all these are cases where quite young men are in- 326 volved—boys who frequently have no advisers whatever near them, and who are, no doubt, greatly distressed at the circumstances in which they stand, and are ready to accept what they believe to be good advice given them for the purpose of taking the easiest way out of a very difficult situation. If the Lord Chancellor will promise me that he will reconsider this matter between now and Report that is all I desire, but I do not think it ought to pass without further consideration.
§ THE LORD CHANCELLOR
Of course I will consider anything that my noble and learned friend says, and will seriously consider what he suggests before the next stage, but I should like to point out that a man usually knows whether he is guilty or not.
§ THE LORD CHANCELLOR
But boys whose plea of guilty is accepted usually do know whether they are guilty or not, and to suggest that a man who pleads guilty of any offence shall afterwards have the opportunity of appealing against his own plea—for that is the effect of it—is to me a new situation. If there are such eases as those to which the noble and learned Lord has referred, of course they are greatly to be regretted, but really an accused person ought to think twice and three times before he admits that he is guilty of an offence which he has not committed. If he pleads guilty I am afraid the presumption is that he ought to take the consequences. I will certainly, however, not only think the matter over but talk it over with those who advise me.
§ Clause 13 agreed to.
§ Clauses 14 to 23 agreed to.
§ Clause 24:
§ Abolition of presumption of coercion of married woman by husband.
§ 24.—(1) Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished.
§ (2) This section shall come into operation on the passing of this Act.
LORD PARMOOR moved to leave out Clause 24 and insert the following new Clause:—
The whole doctrine of coercion by the husband as a defence for the wife is hereby
abolished and a wife shall be in the same position as other people, free to establish any defence of that kind of compulsion which affords a defence to any person except in the case of certain specified crimes.
§ The noble and learned Lord said: This is a matter which was discussed, and on which different views were expressed, on the Second Reading. I need not detain the House except to point out that the proposal which I would substitute for the proposal in the Bill is in the actual words of the recommendation of Mr. Justice Avory's Committee. They propose that you should sweep away the whole doctrine of presumption as regards a wife not being guilty of offences committed in the presence of her husband. The proposal in the Bill keeps the presumption alive, although it allows it to be rebutted. I think that does not go far enough, and that it is a mistake, if you can possibly avoid it, to introduce presumptions of this kind into the administration of our criminal law. You have, of course, to introduce them in some cases, but I think it is a mistake. It is, however, sufficient for me to propose in place of Clause 24 the proposal which was made by Mr. Justice Avory's Committee. It simply means that if a wife can show that the deed done was in fact done under coercion, within those limitations she is entitled to an acquittal. I think it is time that in these matters the position of husband and wife was reduced to the same condition as that in which it is in the ordinary criminal law in an ordinary case.
Leave out Clause 24, and insert the said new clause.—(Lord Parmoor.)
§ LORD BUCKMASTER
I remain entirely impenitent in this matter. I still think that it is unwise to assume that women who commit acts in the presence of their husbands are in the same position as free and independent agents, and I am very pleased indeed to find that one of the most experienced and one of the most humane of our present police magistrates has expressed himself strongly to the same effect in to-day's newspaper. The clause that the noble and learned Lord wants to introduce is something much stronger than the clause in the Bill. He wants to make the thing worse than it is now. I do most sincerely hope, if your Lordships go as far as the Bill proposes (which is very much 328 further than I want to go), that you will certainly refuse to go a single step further.
§ THE LORD CHANCELLOR
Again I have the advantage of conflicting argument. I have the advocatus diaboli and the advocate of the angels, and it seems to me that those two views cancel one another. My object is to abolish the presumption. Most of us, I think, if not all, are agreed upon that. We want to get rid of a presumption which really does not correspond with fact. I could not, however, accept the alternative clause of the noble and learned Lord, Lord Par moor, first, because the wording is not suitable for a Statute. It is an extract from a Report, and if it were adopted the clause would certainly need remodelling. But, on merits, I think that it is true that a wife can often prove coercion by her husband when another person not in the position of a wife could not successfully raise any such defence. I think it is true also that wives are often forced by their husbands to do things they do not like, and although I would not presume that was the case, I would leave it open to a wife to prove it if it be the case. I hope, therefore, that the clause will be maintained in the Bill as it stands.
§ Amendment, by leave, withdrawn.
§ Clause 24 agreed to.
§ Clause 25 agreed to.
§ Clause 26:
§ Forgery of passport.
§ 26.—(1) The forgery of any passport, or the making by any person of any false statement for the purpose of procuring a passport, whether for himself or any other person, shall be a misdemeanour punishable with imprisonment not exceeding two years or a fine not exceeding one hundred pounds or both such imprisonment and fine.
§ LORD RAGLAN moved to omit from subsection (1) the words, "or the making by any person of any false statement for the purpose of procuring a passport, whether for himself or arty other person." The noble Lord said: The Amendment which stands in the name of the Lord Chancellor—[to leave out "any false statement" and insert "a statement which is to his knowledge untrue"]—is 329 presumably intended to meet the objections raised on Second Reading by the noble and learned Lord, Lord Parmoor, but there are other objections. I have confessed to your Lordships that I have myself made a statement which was to my knowledge untrue, for the purpose of obtaining a passport. The circumstances were these. When I went to Palestine in 1918 I travelled in uniform. I left my passport at home—unfortunately, as it turned out. When I wished to return in 1921 I found that a passport was required, and that in order to obtain one I should have to declare that I had not already got one. I was then confronted with the alternative of making a false declaration or remaining in Palestine indefinitely. In the face of such foolish regulations, although I do not like making a false declaration, I did so, and I have now two passports. I may say that these cases are by no means rare.
§ Foolish as the regulations are now, for anything we know to the contrary they may in the future be still more foolish. Suppose the controller of passports was an ardent prohibitionist and gave instructions that passports should be issued only to total abstainers, in a short time our prisons would be full. I do not suggest that such a thing is likely to occur, but it is a possibility that ought to be taken into consideration. In my opinion our bureaucrats have quite sufficient powers already and we shall do well to consider this matter carefully before we increase them.
Page, 20, line 7, leave out from ("passport") to ("shall") in line 10.—(Lord Raglan.)
THE EARL OF DESART
The argument of the noble Lord comes to this: that if the law is so foolish as to put you in a dilemma you ought not, to be punished if you disobey. Let me point out that whether you have the law in this form or in another it is already a misdemeanour at common law, already an offence, to make a false declaration for the purpose of procuring a passport. The consequences of making a false statement in the present condition of affairs may be very serious. I do not look upon this as at all a small point. It is a very serious one, 'but it is already an indictable offence and to put it in the form proposed by the Lord Chancellor is a convenient, way of stating the law.
§ LORD PARMOOR
I do not want to take a view antagonistic to that of Lord Raglan but I think the proposed Amend-merit of the Lord Chancellor does deal with the particular matter I raised on the Second Reading.
§ THE LORD CHANCELLOR
I agree with the noble Earl who has spoken and I hope the House will not accept the Amendment. It is the fact that this offence is already a misdemeanour at common law and may be punished with unlimited imprisonment and an unlimited fine. I am sorry that Lord Raglan should have subjected himself to penalties of that magnitude. At all events the penalties would be limited if his Amendment were rejected.
§ On Question, Amendment negatived.
Page 20, line 8, leave out ("any false statement") and insert ("a statement which is to his knowledge untrue").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 26, as amended, agreed to.
§ Clause 27 agreed to.
LORD ASKWITH moved, after Clause 27, to insert the following new clause:—
. Section 1 (1) of the Poor Prisoners Defence Act, 1903, shall be amended to read as follows:—"Where it appears, having regard to the nature of the defence set up by any poor person, as disclosed in the evidence given or statement made by him before justices, whether such justices are exercising a summary jurisdiction or sitting as committing justices, that it is desirable in the interests of justice that he should have legal aid in the preparation and conduct of his defence, and that his means are insufficient to enable him to obtain such aid—
§ The noble Lord said: I have put down this new clause at the instance of several justices of the peace, including women justices, who have been struck by the position of poor persons to whom they cannot assign solicitors and counsel in the early stages, but to whom, if they were permitted, they would assign solicitors and counsel. The Act of 1903, the Poor Prisoners Defence Act, is a short one, and it permits justices on the committal of prisoners for trial, or the Judge of Assize or Chairman of Quarter Sessions at any time after reading the depositions, to certify that the prisoner ought to have such legal aid, and, therefore, the prisoner is entitled to have solicitor and counsel assigned to him subject to the provisions of the Act. That is to say, persons who are too poor to provide solicitor and counsel are to obtain such aid. The proposal is that this should be extended and that it should be exercisable whet her justices are exercising summary jurisdiction or sitting as committing justices. At present as committing justices they are able to give this assistance, but when they are sitting as a court of summary jurisdiction they cannot, and I understand there have been several cases in which they would have desired to exercise this discretionary power and given prisoners this legal aid.
At the moment certain anomalies exist which the present law allows. For instance, if a prisoner reserves his defence, however poor he may be, the Court cannot assign him solicitor and counsel to prepare that defence. Clause 13 of the present Bill says:
A person who after pleading guilty or admitting the truth of the information is convicted of any offence by a court of summary jurisdiction shall have a right to appeal in manner provided by the Summary Jurisdiction Acts to a court of quarter sessions against his sentence.
But he would not have the right under the existing law to have counsel and solicitor assigned to him.
§ There was rather a curious case the other day, what was called in the newspapers the Epping Forest case. I do not know the particulars of the crime it was a charge of murder against a man and woman. The woman had no legal aid of any kind, but when the case came before the High Court, the Judge assigned counsel to the man who was being tried with her. It appeared in the course of 332 the trial that their defences were not similar and the Judge himself had really to be her advocate in the course of the hearing. She was a helpless creature and it was a horrible crime, but it was an instance in which a poor person might reasonably have had solicitor and counsel at an earlier stage.
§ I do not wish to base this suggestion on anomalies but rather on the practice of what has happened under existing Acts. Since the Act of 1903 was passed a whole generation has had experience of its working. If justices have not allowed solicitor and counsel where they should not have done so, if the Act has not been abused, if prisoners have in many cases been able to have their defence properly put forward, there seems to be no reason why discretion should not be given at an earlier stage to justices to allow this legal aid. I think that if poor prisoners who elect to be tried summarily had this legal aid it would assist justice and be of considerable advantage to the administration of the law.
After Clause 27 insert the said new clause.—(Lord Askwith.)
§ THE LORD CHANCELLOR
I recognise the spirit in which this clause is moved, and I have great sympathy with what the noble Lord has said. His proposal, however, is rather more serious than it looks. The only new point in this proposed clause is that it gives to a prisoner the right to claim to be freely defended at petty sessions. He already has a right, or at all events a claim, to be so defended at quarter sessions or at assizes, where he has put forward some kind of defence at petty sessions. This Amendment would give to every person charged with every offence at petty sessions the right to ask to be defended at the expense of the State. That is a perfectly new and serious matter. It would impose a heavy charge upon public funds. I do not suppose any estimate has been made, but the charge would inevitably be a pretty heavy one, and I feel some doubt whether this House could, for the first time, impose such a charge.
Apart from that point, I should not myself feel disposed to agree with the noble Lord's view without a good deal of further consideration. The offences dealt with summarily are of a minor character 333 the procedure is informal, the accused person generally receives a good deal of help from the magistrates if they think that there is something to be said on his behalf, and it has so far been found sufficient to leave him to rely upon his own resources and to put forward his own defence in any informal way he pleases. One knows how very informal, and, strictly speaking, how very irregular is the defence often put forward at petty sessions. So far as I can see, I think it would be going too far to allow legal aid in every one of the many thousands of cases which come up for consideration at petty sessions. At the same time, if the noble Lord can convince the Government that this expense ought to be incurred, or if that can be done in another place, naturally the matter will then bear another complexion.
§ LORD ASKWITH
In view of the Lord Chancellor's statement, I do not propose to press this clause now, though I rather hope he may be able to receive representations from justices as to the view they hold upon this matter. My proposal applies only to cases where the person can show that he cannot afford to defend himself and where it is really important that the person charged should have legal
|24 & 25 Vict. c. 100.||The Offences against the Person Act, 1861.||In section fifty-seven the words from "and any such offence" to the words "county or place."|
|30 & 31 Vict. c. 35.||The Criminal Law Amendment Act, 1867.||Section three.|
|42 & 43 Vict. c. 49.||The Summary Jurisdiction Act, 1879.||Sections twelve, thirteen, and thirty-six, paragraph 1 of section thirty-nine, in section forty-nine the definition of the expression "fine," and the First Schedule.|
|4 & 5 Geo. 5. c. 58.||The Criminal Justice Administration Act, 1914.||Subsection (1) of section fifteen, paragraph (b) of subsection (1) of section forty, and in subsection (2) of section forty-nine the word "fine.'|
§ THE LORD CHANCELLOR moved, in the third column, relating to the Offences against the Person Act, 1861, to omit the words "from and any such offence' to the words 'county or place'", and insert "England or." The noble Viscount said: This is a drafting Amendment, as also are the two other Amendments to this Schedule which stand in my name on the Paper.334
§ aid, rather than to the small cases of the type that usually come before petty sessions.
§ Amendment, by leave, withdrawn.
§ Clause 28 agreed to.
§ First Schedule: