§ Order for Third Reading read.
§ Motion made, and Question proposed, "That the Bill be now read the third time."
§ MR. T. CHAMBERS
said, he rose to move that the Bill be read a third time that day three months. If he wanted a justification for the course he now took, he should find it in the fact that the Bill, though dealing with a great constitutional question, and effecting extensive changes in the criminal judicature of the country, had advanced to a third reading in that House without any discussion whatever on its principle, It came down from the Lords in February, and was rend a second time, without debate, on the 26th of March; it was then referred to a Select Committee on the 23rd of April; that Committee made their Report on the 24th of May; the Report was considered, after midnight, on the 25th of June; and now the Bill came on to be read a third time on the 6th of August. It was not within the scope of a Select Committee to decide upon the principle of a Bill; they had, however, in the measure now before the House, dealt rather largely, for they had cut it in half, retaining one half and rejecting the other. All previous reforms of 1867 the courts of law had had for their object the removal of inconveniences which had grown out of the practice of those courts during a long period of years, but care was taken to retain in all their integrity the tribunals themselves. The Bill, however, went actually to abolish the great constitutional tribunal for trying criminals in this country, and sought to set up an entirely new tribunal in its place. Now, he would ask, had there been any reason assigned for the introduction of such a measure? The Bill itself gave no information upon that point, for it had no preamble. There had, however, been only two reasons stated in favour of it—the one was that there was at present great delay in trying persons for light offences, and the other was that great expense attended those trials. He denied that these evils existed to any considerable extent. In almost every county in England there were quarter sessions and adjourned or intermediate sessions, so that there were courts held for the trial of persons for light offences about every six weeks. In large towns and cities the sessions were held even oftener than in the counties; upon the average, therefore, the delay that took place between the committal and the trial of any person for light offences would not exceed more than three weeks. Surely such a delay was not a sufficient reason for abolishing one of the highest judicial tribunals in the land. But it was said that men were often acquitted after having been imprisoned three weeks, and that that was a grievance which ought to be remedied. It should, however, be remembered that a verdict of "Not Guilty" was not equivalent to the establishing of a man's innocence. But even if it were true that every person who was acquitted was innocent, still there was a better remedy for the delay than the one proposed by the Bill now under consideration—namely, the giving greater facility for holding persons to bail. It was very desirable to educate the people up to a point when it should be felt that they were safely within the custody of the law by being bailed until the time for their trial. With regard to the saving of expense, which was obviously the great point with those who desired an alteration of the law (for in the three or four petitions, which were all that had been presented in favour of the Bill, that point was very much dwelt upon) he maintained that, although the argument of expense was not to be altogether disregarded, yet it was 1868 the most trivial and the most unworthy that could be urged. But, supposing these two arguments of delay and expense were entitled to much weight, would the Bill remove those evils? He denied that it would, for, even if there were only one remand by the magistrate, it would detain the prisoner in gaol as long as he would be kept there under the present system; and as to the expense, he contended that the Bill, so far from diminishing, would increase it very much indeed. There must be court houses and officers to attend them, by which great charges would be incurred by the counties. The prosecutors and witnesses must also be paid as now. What constituted the heavy cost of the administration of the law was the expensive fixed tribunals of the country at Westminster Hall, the assizes and quarter sessions, with all the apparatus of Judges, Recorders, Chairmen, Clerks of Indictment, and so on. No provision was contained in the Bill that would diminish any portion of that vast charge. But, apart from the questions of delay and expense, was not the present measure open to objection on other grounds? The first clause gave two or more magistrates in petty sessions a summary jurisdiction in cases where the property stolen was not above 5s. in value, unless the prisoner objected to it. Now, here by the very first clause was set up a fallacious test of the character of crime. It was assumed that the magnitude of the crime depended upon the pecuniary value of the property abstracted. Nothing so fallacious in principle had ever before been introduced into an Act of Parliament. He would give the following case: a man was charged with stealing a piece of paper value one halfpenny—a very small offence under the first clause of the Bill—but that piece of paper was a leaf torn out of a ledger, and stolen for the purpose of concealing frauds to an enormous extent. He was aware that power was given to the magistrates at petty sessions to decline exercising their jurisdiction. But that was very objectionable. It was bad in principle. So, again, the prisoner had an option given to him whether he would be tried by the magistrates summarily or by a jury at the sessions. But that was an equally false principle. In point of fact, however, though the Bill professed to give the prisoner an option, he never would be able to exercise it in the rural districts. The police would take care so to arrange the whole thing as effectually to deprive 1869 him of that option. But the proposed new tribunal would be unfair to the accused in another respect. At present, after the grand jury had found the Bill, the accused was tried before twelve men, who were all unknown to him; and he had a right of challenge; but the Bill would bring him before a new tribunal, consisting of two magistrates, who were living in his own neighbourhood and who probably had known him from his youth, and were acquainted with all his peccadilloes and infirmities of character. Again, he would be tried in a private court instead of a public one, and he would not be able to obtain the assistance either of counsel or attorney, although the Bill professed to give him the right to be so assisted. It was, however, well known that practically it could not be done. There was still another objection—the right of appeal had been taken away. [The ATTORNEY GENERAL: The writ of certiorari is not taken away.] He was aware of that, but the right of appeal was, and ought not to be in cases of that description. A further and a still more important objection to the Bill was that, if it were acted upon, it would have the effect of throwing the fate of every poor man in the rural districts helplessly into the hands of the police. He knew a great deal of the tyranny exercised by the police in those districts, and, if the Bill should pass, the whole administration of criminal justice in country places would be entirely in the hands of the police. Justice ought not to be made to flow through artificial channels but through the natural channels—namely, the parties whose property had been stolen. That those artificial channels might be corrupted he would not say, but it was a mode of administering criminal justice open to suspicion, and not at all calculated to invite public confidence. In a very extraordinary case—that of the Dagenham murder—three policemen and an inspector were guilty of wilful and deliberate perjury for the trivial purpose of avoiding being censured for neglect of duty by their superiors. Those cases proved how necessary it was to guard against the administration of justice being placed in the hands of the police. The present Bill was not only unfair to the accused, but also to the prosecutors. At present, when a prisoner was tried at sessions, and had been previously convicted, such previous conviction was given in evidence against him, and the prisoner consequently received an 1870 adequate punishment; but under the present Bill those previous convictions would not be made known, and the offender would escape the punishment he justly deserved on account of them. He objected to the Bill also because, under its provisions, all those aggravated circumstances which changed the character of simple larceny would be liable to be omitted, in order to bring cases under the jurisdiction of the magistrates. They ought also to be most careful how they tampered with trial by jury. They had already infringed upon that great principle, but in the former case they had proceeded on the more valid principle of the age of the offenders, while in the present instance the value of the property was the fallacious principle on which they based their exceptions. He thought that all would agree with him in considering that of late years the current of our legislation had been more in favour of order than of liberty, that they took more care of property than of character and persons, and that they were throwing down safeguards which, though apparently of little importance at present, might in a short time, from a change of circumstances, become of the highest possible moment. The Bill was most objectionable on social grounds, for it would by casting the most invidious duties on magistrates tend to widen the breach between classes, and he was surprised that the magistrates had not on that ground alone petitioned against the Bill. They ought to touch with most tender hands the tribunal of justice, but in the present instance it had been dealt with rashly and unsparingly, and he therefore trusted that the House would not agree to the third reading of the Bill.
§ MR. KENNEDY
said, he would second the Amendment, as he believed the Bill would be most mischievous and disastrous in its effect, and would give a very unjust impression as to the administration of law in the country.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."
THE ATTORNEY GENERAL
said, that so far from concurring with the view of the hon. and learned Member that the Bill would be a mischievous and disastrous change in our legislation, he believed that it would be eminently beneficial. Everybody knew that there was a numerous class of cases in which the amount of property, the subject matter of offence, 1871 was so small, and in which the punishment inflicted was of such a character, that it was a matter of regret that the party accused should be confined for any length of time before being sent to trial, and that he could not be dealt summarily with by the magistrates. If it was merely a question of expense, and they were making the administration of justice less excellent, with a view of diminishing expense, then they would not be justified in proceeding on such a principle; but if, while they were lessening the expense, they were also achieving a great good, then the question of expense ought not to be overlooked. The present Bill would prevent the expense of taking witnesses to quarter sessions; and, as regarded the prevention of delay, would, not with standing what had been said by the hon. and learned Member (Mr. T. Chambers) on that subject, effect considerable improvement, as at present the period of punishment was frequently less than the period of imprisonment during which the person awaited his trial. Another great evil attendant on the existing state of the law was that prisoners were subjected before trial to the contamination of the company of the worst of criminals, it being impossible to classify them till after conviction, and the result was that many persons who entered a gaol innocent or only slightly criminal, left it hardened offenders. As regarded the constitutional objections which had been raised against the Bill, the greatest care had been taken to provide proper security for the prisoner, it being imperative on the magistrates to offer him, before his case was proceeded with the option of being tried by jury or of having his case summarily disposed of, He differed entirely from the hon. and learned Member as to what he had said respecting the police, for his (the Attorney General's) own experience led him to believe that the police would prefer the cases being sent to assizes and quarter sessions, and that they would endeavour to induce prisoners to submit to the jurisdiction of the magistrates. The action of the tribunal proposed under the Bill was not a question of public confidence; it was constituted only to dispose of a class of cases which should never be brought before the higher courts, while the magistrates had the option with respect to their jurisdiction in the case of old offenders, and the provision absolutely met the objection raised by the hon. and learned Member to that particular point. He believed that the 1872 Bill would be of the greatest benefit to the criminal, to the magistrate and to the country, and he should therefore greatly regret the adoption of the Amendment which had been proposed.
§ MR. BARROW
said, he was anxious, where it could be avoided, that no persons should be made an inmate of a gaol before his conviction; but there were cases for which bail could not be taken; and his experience of prisons was such that he was anxious the Bill should pass. It was attempted to separate prisoners before trial from prisoners convicted by solitary confinement; but he could not think that that was just to the accused. Neither did he think that trials at quarter sessions, conducted as they were, much improved the prisoners. On those grounds, therefore, he supported the Bill, though he thought the subject was one which ought to have had a longer discussion in that House. The Bill, however, had been some time before Parliament, and the public were, therefore, aware that a change was contemplated in the law. The questions of expense and time lost to the prosecutors and the jury were, in his opinion, of considerable consequence in estimating the value of the Bill.
§ MR. M'MAHON
said, it was deeply to be regretted that the Bill had not received a more extended discussion. He was of opinion that cases of petty larceny might be safely dealt with by summary jurisdiction; but he objected to that portion of the Bill, which made all stealing above the value of 5s. felony. The third clause of the Bill gave justices in petty sessions the power of dealing with offences punishable by death, transportation for life, or transportation for seven years, and punishing them at their option with from one day to three months' imprisonment. It was, therefore, in his opinion, wrong to pass a Bill of the kind; and the Government ought to postpone it until the next Session, when the whole subject of the criminal law alteration could be brought under consideration. He thought the Bill dealt with some of the nicest questions which came under the action of the law in a very inadequate manner. As regarded Ireland the Bill would be very injurious to the public, as it gave extraordinary discretion to two magistrates, who in many cases were not competent to decide the legal points that might be raised under its operation. The Bill also barred all actions for the recovery of stolen property, by em- 1873 powering the magistrates to grant a certificate upon confession of the party accused, which would have that effect. One of the results of the Bill would be to create a bidding on the part of petty sessions against assizes and quarter sessions. He thought a short Act of Parliament subjecting parties committing petty larcenies and offences to pecuniary costs and damages would be more effectual to check those offences than the maximum of imprisonment inflicted by the Bill under consideration. He believed that if all the cases of the kind in question were to be triable before petty sessions, at least four-fifths of the cases would be taken from the quarter sessions, the magistrates would get tired of the increased duties, stipendiary magistrates would have to be appointed as in Ireland, and the country gentlemen, who had hitherto done their duty satisfactorily and cheaply, would be completely superseded by a host of Government employés at 1,000l. a year, which, moreover, the counties would have to pay for. He should, therefore, support the Amendment.
§ MR. BAINES
said, that the real principle of the Bill was contained in the first two clauses under which a certain summary jurisdiction was given to magistrates of dealing with small offences, instead of their being sent to quarter sessions or assizes. He might, as Chairman of the Select Committee to which the Bill was referred, be permitted to state that every care was taken to surround the exercise of the new jurisdiction which was given under the Bill with every safeguard, so as to make it work in as unexceptionable a manner as possible. With regard to the constitutional propriety of the Bill, he would only state that Lord Brougham had expressed an opinion as to the great importance of the measure, and that the Lord Chief Justice Campbell had congratulated grand juries on the probability of a Bill of the nature of the one before them being passed during the present Session.
§ Question, "That the word 'now' stand part of the Question," put, and agreed to.
§ Main Question put, and agreed to.
§ Bill read 3°.
§ Clause (Appeal, 7 and 8 Geo. 4, c. 29, s. 72), brought up, and read 1°.
§ Motion made and Question proposed, "That the clause be now read 2°.
§ Debate adjourned till Wednesday.